18 runmaur REPOHTER.
Renick, executor 0f`,T.’   Benick himself, after_the death of his tes-
_ tator became a member of that Erm, and subsequently, and in pur-
suance, as he supposed, of authority conferred by the will of his
testator, he not only permitted the interest in that firm, standing in
the name of T. T. Benick, to remain, but, upon the basis of the
Harvey notes as collateral security, negotiated the before-mentioned
loans with Ayer & Co. and the Westboro bank. He borrowed the
_ _ money chiefly for the purpose of using, and he did chiefly apply it,
in the business of Tower, Classen & Co., except the sum of $10,-
000, which was paid through Fay to Smith, one of the personal rep-
resentatives of Benick Huston, and was by the latter divided equally
among the before-mentioned legatees of Benick Huston. The supreme
court decided that the Harvey notes, although payable to T. T. Ben-
ick, belonged to the estate of Benick Huston, and that Ayer & Go.
and the Westboro bank could not hold them as against the repre-
sentatives of that estate. Upon thereturn of the cause a decree in
pursuance of the mandate of thesupreme court was entered, requir-
ing the surrender of the Harvey notes to the personal representa-
tives of Renick Huston, and they were so surrendered by Ayer & Go.
and the bank. * I ` *   A ` ·
v The present suit wasidnstituted by the personal representatives of
Renick Huston to enforce the payment to them of the amount due on
the Harvey notes, and to protect their rights to the proceeds against
adverse claims asserted by others to an interest therein. In the prog-
ress of the suit the entire amount due on both of the Harvey notes
was paid into court—$106,686-—all in cash, except $21,980, which
was in the form of a certificate of deposit. It was paid into court to
be disposed of as the court might adjudge was proper. No formal
opinion has been prepared, but after a patient examination of the
case I have reached these conclusions:
1. The cases of Smith v. Ayer determined that the Harvey notes
constituted a part of the assets of Benick Huston’s estate,. and that
the personal representatives of that estate were entitled to the pos-
session of them. r _ - H »
2. The decree in that case has been fully executed by the surren-
der of the notes to the personal representatives of Renick Huston.
3. The opinion in Smith v. Ayer, construed in the light of the
opinion subsequently delivered by the supreme court upon an appli-
cation for rehearing, does not prevent·Ayer & Co. and the bank from
‘ asserting, in this -new and independent suit brought by the personal