majority"> Clark, J.:

The demurrer to the second cause of action should have been sustained. This cause of action is based upon'the allegation that by the will the interest on the sum of $6,000 was devoted to the maintenance and education of the children. A reference to the will, item 3, as set oút in the record, shows that such interest was devoted to the education of the children only. This cause of action seeks to apply it to the maintenance of the children, and could not have been maintained against the executor himself if living. Clauses two and four of the will appropriate the profits of the business, to be continued by the executor in his discretion, to the maintenance of the children. If the *218 pleadings as to this cause of action were reformed so as to allege that so much of the fund in the hands of the administrator as is not the aforesaid $6,000, and accumulated interest thereon, arose from the said profits, and that the executor agreed upon or promised compensation for the maintenance of the children, or refused to exercise his discretion in regard to the amount, it may be that then the plaintiff would have a cause of action to have compensation awarded her out of such accumulated profits. But it is not necessary that we decide the point as it is not now before us.

The demurrer to the third cause of action should also have been sustained. It is not clearly made to appear whether the liability of plaintiff for the $37.50 for tuition was incurred before or since the death of the executor. Tf before his death, and plaintiff incurred it at his instance, or by his authority, a good cause of action as to this would be shown, but the burden to clearly allege and to prove the state of facts entitling her to recover is on the plaintiff. In fact, however, it was conceded in the argument that this liability was incurred since the executor’s death. Putting out of view the absence of any allegation that plaintiff incurred the liability at the instance, or by authority of, defendant, which defect is fatal to plaintiff’s claim, we will consider, as the parties desire it, the question whether the defendant, an administrator de bonis non cum testamento annexo, had power to execute the trusts expressed in the will. The statute (The Code, § 2168) is as follows: “ In all cases where letters of administration, with the will annexed, are granted, the will of the testator must be observed and performed by the administrator with the will annexed, both in respect to real and personal property, and an administrator with the will annexed has all the rights and powers, and is subject to the same duties as if he had been named executor in the will.” As to powers conferred upon the executor by the second and fourth items of the will to continue the busi *219 ness of the testator, as long as in the executor’s judgment it shall be profitable, and to pay out of the profits such amounts as in his judgment should be necessary for the support of testator’s widow and children, they weré personal to and discretionary with the executor, and became extinct at his death. They could not be judicially prolonged and vested either in the administrator c. t. a., nor in a substituted trustee. Young v. Young, 97 N. C., 132; Lewin on Trusts, 435.

As to all the other powers and duties conferred by the will, including that of holding the $6,000 and applying the annual interest to the education of the children, the administrator with the will annexed becomes a trustee for any trusts declared in the will which could pass and be transferred to any one, as much as if he had been named executor. Jones v. Jones, 2 Dev. Eq., 387. In the present case, however, there is no trust which can survive and pass to the administrator under the statute, except that, imposed in regard to the $6,000. The discretion given to the executor as to that was only as to the manner of safe-keeping, an incidental matter which does not extinguish it at his death. The general duties of the executor in regard to settling the estate pass of course to the administrator. On such settlement he should pay over to the distributees, or their guardian, the fund remaining after payment of debts and charges of administration, except the $6,000, and interest thereon, which trust he should execute under the will.

We are aware that there are decisions in New York and some other States that only such powers pass to the administrator as belonged to the executor virtute officii, and that the other trusts conferred by the will which are not in the scope of the common law duties of an executor do not pass to the administrator, but that a trustee must be appointed to execute them. A scrutiny of these cases shows that they all enforce the idea that, as an executor at common law had no control over realty, a power conferred on him by the will *220 to sell real estate, does not pass to the administrator. Our statute, however, (The Code, § 1493) expressly provides that it shall, and the reasoning in those cases has no application here, and we prefer to follow our own precedent. Jones v. Jones, supra. As the appointment of an administrator and of a trustee would be by the same Court, and both are required to give bond and to make returns, and in all respects are subject to the same supervision, there seems no good reason to require the appointment of a trustee, when The Code (§§ 1493 and 2168), by a fair and reasonable construction, indicates clearly the intention to devolve upon the administrator c. t. a. “all the rights and powers” conferred on the executor by the will. ‘It would add to the expense, but hardly to efficiency in executing the will, to have two officers instead of one. The same general legislative intent is shown by chapter 147, Acts 1887, which provides that the executor or administrator of a mortgagee, in a mortgage containing a power of sale, may sell under the power without the necessity of the Court appointing a new trustee.

The demurrers to both causes of action should have been sustained, with leave to plaintiff to amend the complaint if desired. The cause is remanded that it may be so ordered.

Error.

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