On March 20th, 1858, Charles S. Middlebrook executed and delivered to his father, Elijah Middlebrook, his note of that date for $1,000, payable on demand with interest; the latter died in 1859, owning the note; by his will he devised and bequeathed the use of a specified portion of his estate to the said Charles S. for life, with remainder in fee to Elijah Middlebrook,■ Jr., son of the latter; the note was legally distributed to Elijah Middlebrook, Jr., in October, 1860, subject to the life interest of his father therein, but possession thereof was retained by the administrator upon the estate of Elijah Middlebrook for Charles S. Middlebrook until the death of the latter on April 2d, 1877, when it was delivered to Elijah Middlebrook, Jr. Charles S. Middlebrook neither paid nor promised to pay the note, nor did he pay or receive any interest thereon.

Elijah Middlebrook, Jr., presented to the commissioners upon the estate of Charles S. Middlebrook, the note as a claim in his favor for the principal sum of $1,000, with interest from the date of the death of his father. The claim was allowed. From this action of the commissioners Elijah B. Middlebrook took an appeal to the Superior Court; and this court is asked to advise as to the judgment to be rendered thereon.

The appellant insists that the note is barred by the statute of limitations.

*443By the combined operation of the will and the distribution the maker of the note became entitled to the use during his life of the principal sum which he had therein promised to pay upon demand. This life use is the full measure of the right thus conferred upon him; this right it was neither in his power while living, nor, being dead, in that of his representatives, to enlarge. Neither by acting, nor by omitting to act, could he change the life use into an absolute gift in behalf of himself or of his estate.

The administrator might have reduced the note into money by enforcing payment; and the maker might have paid it voluntarily; in either case of course being entitled to the use for life of an equivalent sum; and in neither case would he have come under any obligation to the remainder-man in reference to the matter.

But, by omitting to pay the note, by allowing that specific chose in action to remain in an unchanged form in the possession of the administrator, and by accepting it in that form as a component part of the estate subjected to his life use, he became charged in behalf of the remainder-man with the duty of preserving the life of the note, so that upon the termination of that life use it should be as valid a claim against his estate as it was at the beginning.

He knew that at the end of a certain number of years the note which he virtually held in trust would cease to impose any legal obligation upon, or to have any legal existence as against himself, unless he should previously make payments upon the principal thereof, or upon the interest accruing thereon, or should formally renew the obligation therein assumed.

During his life he protected himself under the distribution against any payment upon the principal; but as he acquired thereby no right to make that principal absolutely his own by his failure to keep the trust committed to him, there remained upon him the obligation to keep the note in life by payments of interest.

The testator not having provided that the note should constitute a portion of the estate to be set to his use- and of *444course not being able to foresee that it would fall into that portion, the will, both in intent and expression, left him the unreleased promissor both as to principal and interest; by it his contract was neither annulled nor changed; and although it is true that by this accident of distribution, which carried the note into his portion, he became entitled as legatee to receive the interest which he should pay as promissor, he had not the power to destroy the property of the remainder-man simply by omitting to do anything; while it became his privilege to receive interest in one capacity, the obligation to pay in another continued upon him.

He continued the use of the principal named in the note under the continuing obligation to pay interest as therein written. Under such circumstances the law requires neither the formal act of payment by one hand into the other, nor the equally formal act of payment to and immediate reception from the administrator. So far forth as the remainder-man is concerned, by such use the payinent of interest is an accomplished legal result in the absence of either of these formal acts. Inasmuch therefore as Charles S. Middlebrook had and enjoyed the privileges of a legatee of the use, the law will regard that continuing use as such continuing payment of interest as prevented the operation of the statute of limitations during his life.

We advise the Superior Court to affirm the decree of the court of probate.

In this opinion the other judges concurred.