It has already been decided in this case, “that all the promises and guaranties of the executors would be of no avail to bind the estate, but would only bind those who made such promises individually to the plaintiff';” the executor having no power to take a claim against the estate out from the operation of the statute, limiting the time for bringing suits against executors for causes of action against the deceased. Company v. Barnes, 48 N. H. 25.

It seems now conceded, that the plaintiff is, barred by this statute from recovering a judgment binding on the estate, and that its only claim, is against the defendant personally upon his promise and guaranty. This promise does not constitute a debt created by the defendant, ‘ ‘ while acting in any fiduciary character.” In making the agreement he was acting outside of his character as executor, and he was not “ acting in a fiduciary character” as respects this plaintiff. Even if the executor has in his hands assets of the estate placed there for the purpose of paying this debt, those assets are not the property of the plaintiff; nor can the executor legally appropriate them to pay a claim which, notwithstanding the admitted existence of ample assets, is barred by the special statute of limitations. The executor would hold such assets in trust for the estate, and not for the plaintiff'. The fiduciary relation would exist between the executor and the estate, not between the. executor and these creditors of the estate. It was beyond the defendant’s power to bind the assets by any agreement to hold them in trust for the plaintiff; and, if he undertook to make such an agreement, his undertaking would not create a fiduciary relation between the plaintiff and himself, but would be merely an ineffectual attempt to create such a relation.

Case discharged.