234 N.W. 403
Neb.
1931
Thompson, J.

Thе plaintiff in error, hereinafter called defendant, was convicted upon two counts of an information filеd against him in the district court for Pierce county, Nebraska, charging him as executor of the estate of George Vinson, deceased, with embezzlement of certain promissory notes belonging to such estate. The prosecution is had under section 9629, Comp. St. 1922, as amended by ch. 95, Laws 1923, now section 28-544, Comp. St. 1929, our general embezzlement statute, which, so far as here material, provides: “If any executor, administrator, guardian or assignee for the benefit of creditors shall embezzle or convert to his or her own use any money, property, rights in action оr other valuable security or effects whatever belonging to any individual or company or association, that shall come into his or her possession by virtue or under color of his or her relation as officer, executor, administrator, guardian or assignee, every such person so offending shall be punished in the manner provided by law for feloniously stealing property of the value of the article so embezzled, taken or secrеted or of the value of any sum of money payable or due upon any right in action so embezzled.”

Among the various claimed errors assigned as grounds for reversal, it is insisted ‍‌‌​​​​‌​​​‌​‌‌‌​​​​‌​‌​​‌​‌​‌​‌​​​​​‌‌​‌​‌​‌‌​‌‌‍by the defendant that at common law the executоr held the full title and jus disponendi of the personal estate, and that such situation still remains. This statement is not forceful. Executоrs and administrators in Nebraska are creatures of statute. In Henry v. Henry, 73 Neb. 746, we held: “An administrator appointed under the statutе is not in any sense an agent of his ‍‌‌​​​​‌​​​‌​‌‌‌​​​​‌​‌​​‌​‌​‌​‌​​​​​‌‌​‌​‌​‌‌​‌‌‍intestate, but is a public trustee, of defined and limited powers.” Thus, as held in Murphy v. Crouse, 135 Cal. 14: “Both *586real and personal property descend * * * to the beneficiary named in the will, with a qualified right in the personal representative, who holds it, for the purposes of administration, more like a receiver than a common-law executor. The title is not in him, nor has he the power of disposal, save by order of court,” or by lawful direction in the will. As stated in 24 C. J. 203, sec. 711: “The representative (executor or administrator), as such, takes no-beneficial interеst in the personalty, but takes it only for the purpose of administration and distribution to those entitled, and as to the surplus remaining after the payment of debts he is a mere trustee for those beneficially entitled.” These -quotatiоns are in harmony with our holding in Edmondson v. State, 89 Neb. 797, which was a prosecution of a guardian for the embezzlement of the funds of his ward, but was under the same statute as the one here being considered. In the course of such opinion (page 800) we said: “It thus appears that it is not the failure of the guardian to make settlement or pay over to his wards the amоunt of money found due them which constitutes the offense ;.'it is the fact of his conversion of such money to his own use which renders ‍‌‌​​​​‌​​​‌​‌‌‌​​​​‌​‌​​‌​‌​‌​‌​​​​​‌‌​‌​‌​‌‌​‌‌‍him guilty of the crime defined by the statute upon which the information in this case was founded. It is the use by the guardian, аs his own, of the trust fund committed to his care which renders him criminally liable and for which a criminal prosecution may be maintained.” The material facts which formed the basis of the foregoing quotation are quite similar to, if not identiсal with, those disclosed by the record now before us.

An executor should at all times act in good faith toward the estate, he being a trustee thereof. Carden v. McGuirk, 111 Neb. 350.

In Kronberg v. State, 114 Neb. 393, we held: “An executor of the estate of a deceased рerson is amenable to the embezzlement statute applicable to ‘any individual ‍‌‌​​​​‌​​​‌​‌‌‌​​​​‌​‌​​‌​‌​‌​‌​​​​​‌‌​‌​‌​‌‌​‌‌‍or company or association/ if money (or other personal property) in his possession as such executor is embezzled by him.”

*587Reference is here made to the case of Thompson v. Pope, 77 Neb. 338, wherein will be found a partial history of our statutory law of descent and distribution of property.

Thus, it will be seen that the common-law rule contended for by the defendant has been modified by our statutory enactments, and therefore, while such ancient rule may be instructive, it is without application here. By section 49-101, Comp. St. 1929, our legislature has designated when the common law may be said to apply. ‍‌‌​​​​‌​​​‌​‌‌‌​​​​‌​‌​​‌​‌​‌​‌​​​​​‌‌​‌​‌​‌‌​‌‌‍This section provides : “So much of the common lаw of England as is applicable and not inconsistent with the Constitution of the United States, with the organic law of this statе, or with any law passed or to be passed by the legislature of this state, is adopted and declared to be law within the state of Nebraska.”

The evidence reflected by this record is voluminous, and largely of an uncontrаdictory nature, hence a comparison and analysis thereof would be of but little value. However, it may be said that to read it-is to be persuaded that the verdict of the jury is warranted by the evidence and the law aрplicable thereto; in fact, that under this record no other verdict than the one returned could reasonably have been arrived at. This defendant, as executor of this estate, became possessed of thе notes referred to in the aforesaid two counts of the information, and, in utter disregard of his duties, and with fraudulent intent, сonverted the same to his own use without the consent of the owner in any manner having been first obtained.

As indicated at the beginning of this opinion, numerous claimed errors are urged. Owing to the importance of the case tо the defendant, and to the general public, these have had our careful consideration, and are fоund to be without merit. •

The defendant has had a fair trial, and the record being free from reversible error, the judgment of the district court is

Affirmed.