| Summary: | JOY “U. ELTON. 431 principal and accrued interest of mortgages and investments should be sufiicient to pay all legacies and bequests. This constituted Mc Laughlin trustee. The duties of trustee were superadded to those of executor. Tracy v. Murray, 49 Mich. 35: D11-titling \'- Bank, 61 N. Y. 497; Greenland v. Waddell, 116 N. Y. 234: Ward v. Ward, 105 N. Y. 68; Hamm v. Hamm, 58 N. H. 70: Palmer v. Noyes, 48 N. H. 174; In re Beslcy, 18 Wis. 484; Allen v. Kennedy, 8 S. W. Rep. 882; Givens v. Flannery, 49 S. W. Rep. 182. Respondents are not liable for the several defaults of McLaughlin as trustee. . § 4651 Rev. Codes; Wocrner Administration, § 260; Hinds v. Hinds, 85 Ind. 312. A trusteeship is none the less such although the word trustee may not appear in the instrument creating it. Packard v. Old Colony Railway Company, I68 Mass. 92. In making the spe cific instruments McLaughlin acted as trustee and not as executor. Tracy v. Murray, 49 Mich. 55; Tobias v. Ketchum, 32 N. Y. 319; Robert v. Corning, 89 N. Y. 226; Simpson v. Cook, 24 Minn. 180; Ross v. Barclay, I8 Pa. St. I79; Hodgin v; Tollcr, 30 N. VV. Rep. 1, 70 Ia. 21; Naundorf v. Schurman, 41 N. I. Eq. 14. 2 Atl. Rep. 602; Lanning v. Sisters, 35 N. ]. Eq. 302; Clark v. Tainter, 7 Cush. 567; Lewitt v. ~Wooster, 14 N. H. 550: Give-as v. Flannery, 49 S. W. Rep. 182; Allen v. Kennedy, 8 S. VV. Rep. 882. This plaintiff, as administrator de bonis non, the successor of McLaughlin, has the same power over this estate that McLaughlin as executor had, but plaintiff has no authority touching this trust as he did not suc ceed to any power or authority over this trust fund, it follows that McLaughlin as executor possessed none. Ross v. Barclay, 18 Pa. St. 179; Dunning v. Bank, 61 N. Y. 497; Lanning v. Sisters, 35 N. ]. Eq. 392; Greenland v. Waddell, 116 N. Y. 234; Clark v. Tainter, 7 Cush. 567; Hodgin v. Toller, 30 N. W. Rep. 1. The time within which McLaughlin could legally act as executor under the _ will expired prior to the time of making the investments under con sideration. § 3849 Wisconsin Statutes. The payments of the lega cies was a duty imposed upon him as trustee and not as executor. Calkins v. Smith, 41 Mich. 409; Allen v. Kennedy, 8 S. W. Rep. 882. The presumption of law is that the executor settled up the estate within two years. Ingram v. Ingram, 4 Jones Law, 188; Carroll v. Bosley, 27 Am. Dec. 460. Where the same person is both executor and testamentary trustee, after the expiration of the stat -utory period, it is conclusively presumed that the property is held in the capa.city of trustee. Wicr v. Peo., 78 Ill. 192; Bell v. Evans, 94 Ill. 230; State v. Hearst, 12 Mo. 365; Carroll v. Bosley, 27 Am. Dec. 460: Jacobs v. Bull, 26 Am. Dec. 72; Able v. Brady, 28 Atl. Rep. 817; Woolcy v. Price, 37 Atl. Rep. 644; Allen v. Kennedy, 8 S. W. Rep. 882; Givens v. Flannery, 49 S. W. Rep. 182. Where the same person is executor and testamentary trustee he will be held to hold the trust estate in his capacity as trustee, whenever and as soon as he manifests such intention by any authoritative act. Wil son v. Wilson, 17 Ohio St. 150; Clnff v. Day, 124 N. Y. 195; Cran sun v. Wilscy, 39 N. W. Rep. 0; Tittman v. Greene, 18 S. W. Rep. 885 Babb v. Ellis, 76 Mo. 450.
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