¶1The plaintiffs’ ancestor being desirous to provide for his natural children and their mother, made a will in their favor, and afterwards being apprehensive that the will might not be carried into effect, sold a tract of land to the defendant, whom he had named as one of his executors, on a credit, and took his notes for the price, in the names of and payable to his natural children. The plaintiffs being dissatisfied with the will, instituted a suit in the court of probates, in which the donation to the natural children was revoked, and they accordingly obtained possession of the notes which the defendant had given to their ancestor for the land, and which had remained in possession of the latter until his death. The object of the present suit is the recovery of the amount of the notes, and the restoration of the personal property of the deceased which still remained in possession of the defendant. In November, 1838, the case -was acted upon as far as it related to the notes, and by consent the trial as far as it related to the other claim of the plaintiff was postponed until the following term, when there was a judgment of nonsuit in regard to the latter part of the plaintiffs’ claim. In the will the personal property of the plaintiffs’ ancestor was given to the mother of his natural children; it consisted of household furniture, stock, etc. At his death she was permitted by the defendant to retain what was thus left to her, and the defendant never interfered therewith; the plaintiffs for nearly twelve years made no claim. It does not appear to us that the court erred. The *8defendant is not shown to have ever had any part of the property in his possession, he therefore cannot he liable otherwise than if, as executor, he neglected to take possession of the estate, having a right so to do ; and on this hypothesis the heirs have only the right to demand’ an account of his administration as executor, and the delivery of any property of the estate in his possession, or any balance which may appear due from him; this account can only bo demanded in the court of probates. The will does not give the seizin of the property to the executor.
¶2 Judgment affirmed.