198 WINDER v. DIFFENDERFFER,

was to be considered thenceforward, as a trustee charged with the
execution of the will of Charles Rogers, deceased; and that he had
succeeded to that trust, under the authority of this court, imme-
diately after the resignation of the late Samuel Vincent, on the 23d
of November, 1814.

These positions, which have been established in that case,
appear to me to furnish a very satisfactory answer to the claim of
the representatives of Catharine Diffenderffer deceased, to be sub-
stituted for and allowed to take the place of the creditors of Charles
Rogers deceased, on the ground of their having been improperly
paid with their funds; and upon that ground to have certain sums
withheld for their use from the distribution now about to be made;
and also to the objection, that John Diffenderffer is here claiming
only as the natural guardian of his own children and in opposition
to the plaintiffs; since those proceedings shew, that he stands here
as a trustee, so constituted by the authority of this court, for the
benefit of all the devisees under the will of Charles Rogers de-
ceased.

But, passing over all the proceedings and final adjudications in
the case of Rogers v. Merryman, let us return to the decree, in this
case of the 7th April, 1828, by which the defendant John Diffen-
derffer has been called upon to account for the rents and profits for
the whole time the property has been, or may remain in his posses-
sion. The statements reported by the auditor, and the exceptions
of the parties present two distinct subjects for consideration; first,
the claims and pretensions of the representatives of the late Catha-
rine; and second, the liabilities of and allowances to this defendant
John Diffenderffer.

It has been urged, that the debts of the late Charles Rogers were
paid, contrary to the directions of his will, by the trustee Vincent,
out of rents and profits which ought to have gone to the late
Catharine; and, consequently, that she or her representatives, to
the extent of the rents and profits to which she was entitled, and
which had been so misapplied, ought now to be allowed to take
the place of those creditors as against these funds in the hands of
this trustee, and which are now about to be distributed.

This stand is taken upon the ground of substitution; and it can
only be maintained by means of those principles by which a surety,
or one who has been placed in the condition of a surety is allowed
to take the place of the creditor against the principal debtor; or by
the help of those principles by which securities or assets are mar-