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b. Bills and notes by executors and administrators. It may be stated as a general rule that an executor or administrator cannot bind the estate of the decedent by making or indorsing a promissory note as such executor or administrator." An executor or administrator can only bind himself by his contracts; the assets of the estate under his control are only bound for the debts contracted by the decedent during his lifetime.63 If an executor or administrator make a negotiable promissory note, or accept a bill of exchange, and the same be transferred before it becomes due, he is held to a personal liability thereon; because he himself makes in such a case a positive promise to pay, and executes it in the form of a negotiable instrument. Having no power to bind the estate of

285, in which it was held that executors are in general bound by all the covenants of the testator, except such as must be performed by the testator in person. See also McCrady v. Brisbane, 1 Nott & McC. (S. C.) 104, 9 Am. Dec. 676; Parker v. Barlow, 93 Ga. 700, 21 S. E. 213. As to contracts of a personal nature, see Cochran v. Davis, 15 Ky. 119; McGill v. McGill, 59 Ky. 258; Marvel v. Phillips, 162 Mass. 399, 38 N. E. 1117, 44 Am. St. Rep. 370, 26 L. R. A. 416; Chambers v. Wright, 40 Mo. 482, 93 Am. Dec. 311; Russell v. Buckhout, 87 Hun, 46, 34 N. Y. Supp. 271; Gray v. Hawkins, 8 Ohio St. 449, 72 Am. Dec. 600; White's Exrs. v. Commonwealth, 39 Pa. St. 167.

62. Boggs v. Wann (C. C.), 58 Fed. 681; Winter v. Hite, 3 Iowa, 142; Dunne v. Deery, 40 Iowa, 251; Livingston v. Gaussen, 21 La. Ann. 286, 99 Am. Dec. 731; Studebaker Bros. Mfg. Co. v. Montgomery, 74 Mo. 101; Stirling v. Winter, 80 Mo. 141.

63. McFarlin v. Stinson, 56 Ga. 396; Harrison v. McClelland, 57 Ga. 531; Lynch v. Kirby, 65 Ga. 486; Brightwell v. Jordan, 74 Ga. 486; White v. Thompson, 79 Me. 207, 9 Atl. 118; Rittenhouse v. Ammerman, 64 Mo. 197, 27 Am. Rep. 215, which was an action on a note drawn "I promise to pay," etc., signed "A., executor," and it was held that the burden was on the executor, and it was competent for him to show that, as his individual contract, the note was without consideration, and that the payee had agreed to look only to the estate. In the case of Schmittler v. Simon, 114 N. Y. 176, 21 N. E. 162, it was held error to exclude evidence to the effect that when a draft was drawn upon In New York it has been held that an executor and accepted by him as although an administrator, after or- such, it was understood between the dering a tombstone for his intestate, drawer, payee, and plaintiff that it gave his note for it, he remains liable was to be paid out of the drawer's as administrator, in the absence of proof that he contracted for the tomb- interest in the estate; that defendant stone in his individual capacity. The then stated in their presence he would note will in such a case be deemed to not accept or become liable personally, have been given as collateral to his and it was agreed that he should ac indebtedness as administrator. Laird cept in his capacity as executor, to v. Arnold, 25 Hun, 4. And in this be paid only out of the drawer's inState in the case of Schmittler v. terest in the estate. See also Boyd Simon, 25 Hun, 76 (revd. on other v. Johnston, 89 Tenn. 284, 14 S. W. grounds, 114 N. Y. 176, 21 N. E. 162), 804; Hostetter v. Hoke, 17 Kan. 81; where a draft beginning with the O'Brien v. Jackson, 167 N. Y. 31, 60 words: "Mr. S., executor, will please N. E. 238.

67

64

the deceased, his unqualified promise to pay is held to bind him to a personal responsibility; especially where the promise is made in a form that imports or implies a sufficient consideration. He does not limit his liability by describing himself as executor, unless he expressly confines his stipulation to pay out of the estate;65 and in such a case the bill or note is no longer negotiable. It has also been held that the renewal of a note of a testator by his executor makes him personally liable. It would seem, however, that although an administrator cannot bind the estate by a note signed by him as executor, yet the estate is liable for the consideration of the note if it is for the payment of a legal debt against the estate. 68 There is a sufficient consideration for a note signed by an executor or administrator in his official capacity to bind him personally (1) when the maker has assets in his hands which he might have applied in payment of the debt for which the note was given, and (2) where a consideration for his promise has been received by the executor or administrator himself."

64. Edwards on Bills and Notes, p. 78.

66. Personal liability of executor, etc. An executor or administrator, 65. Childs v. Monins, 2 B. & B. if he make, indorse, or accept nego(Eng.) 460; King v. Thorn, 1 Term tiable paper, will be held personaliy R. (Eng.) 489; Serle v. Waterworth, liable, even if he adds to his own 4 Mces. & W. (Eng.) 9; Davis v. name the name of his office, signing French, 20 Me. 21. a note for example, "A., as executor Signature as executor," etc. of B.," for this will be deemed only The cases are very numerous to the a part of his description, or will be effect that the addition of an official rejected as surplusage. But if he character to the signatures of exec- chooses to exclude his personal liautors and administrators, in executing bility expressly, as by the words, "I written contracts and obligations, has promise to pay, etc., out of the assets no significance, and operates merely of C. D., deceased, and not otherwise," to identify the person and not to limit or use any clearly equivalent language, or qualify the liability. Schmitt- then he is only bound so far as the ler v. Simon, 101 N. Y. 554, 558, assets extend. But the instrument, in 54 Am. Rep. 737. In this action a that case, will not be a bill of exdraft was accepted by the drawer as executor" in which the drawer directed him to " charge the amount against me and my mother's estate." The executor was held personally liable. But see 114 N. Y. 176, 21 N. E. 162. The mere designation of himself as "trustee" by a party to a contract does not relieve him of personal liability thereon. To do this he must stipulate that the other party is to look solely to the trust estate. Taylor v. Mayo, 110 U. S. 330, 28 L. Ed. 163. See also Hopson v. Johnson, 110 Ga. 283, 34 S. E. 848; Jenkins v. Phillips, 41 App. Div. 389, 58 N. Y. Supp. 788.

S. c.,

66

change or promissory note, because not payable at all events. The same rule is applicable to guardians, trustees, and all persons acting in a representative capacity, except agents. Parsons on Notes and Bills, p. 161.

67. Yerger v. Foote, 48 Miss. 62; Cornthwaite v. Bank, 57 Ind. 268. 68. Dunne v. Deery, 40 Iowa, 251. 69. The consideration upon which a promise of an executor as such is held to be binding at law, when there are assets sufficient to pay the debt or legacy, is that the executor, having sufficient assets for the purpose, is bound, both morally and by virtue of

c. Rights of executors and administrators as to bills and notes of decedents. The executor or administrator of a deceased party to a bill or note has, in general, the same rights in respect thereto, as his testator or intestate.70 Only the executors or administrators, and not the heirs or next of kin of deceased persons, can claim possession of his bills and notes, or demand payment, or put them in suit." In suing upon them, they must set out distinctly the facts which constitute their representative capacity, because this is a part of their title.72 It has been held not sufficient to describe themselves as executors, nor even to aver that they were duly appointed; but they are required to set out the proceedings, so that the court may see that the appointment was legal.73

his office, to pay the debt or legacy, having assets of the estate applicable and such duty is a sufficient considera- to the payment of the debt, gave his tion to support a promise to pay, so own note to the creditor for such debt, that indebitatus assumpsit will lie it amounted to an appropriation of upon it. McGrath v. Barnes, 13 S. the assets to the amount of the debt C. 328, 36 Am. Rep. 687. See also to the payment thereof; and this conTroy Bank v. Topping, 9 Wend. (N. stituted a sufficient consideration for Y.) 273, which was an action against his promise, and he was personally administrator, on a promissory liable, whether he made the note as adnote payable in sixty days. It was ministrator or in his own right. If held that the delay of payment for he failed to reimburse or indemnify sixty days could not be construed as himself, it was his own fault, and no an agreement to forbear, and that the concern of the creditor. But if, withpromise was nudum pactum, unless out any new consideration, he gave his note for the debt of the deceased when there were assets at the time it was made. Walker v. Patterson, 36 Me. 273; Snead v. Coleman, 7 Gratt. (Va.)

an

300, 56 Am. Dec. 112.

Where an administrator undertakes

to bind the estate by a note, believing he has due authority, but in point of fact having no authority, he will be held personally liable, because where one of two innocent persons must suffer a loss, he ought to bear it who has been the sole means of producing it, by expressly or impliedly inducing the other to place a false confidence in his acts, and because an administrator, who enters into a contract to bind the estate, impliedly warrants his own authority to so bind it. Farmers' Co-op. T. Co. v. Floyd, 47 Ohio St. 525, 26 N. E. 110, 12 L. R. A. 346; White v. Madison, 26 N. Y. 124; Frankland v. Johnson, 147 Ill. 525, 35 N. E. 480; Jefts v. York, 10 Cush. (Mass.) 395. See also Germania Bank v. Michaud, 62 Minn. 459; 65 N. W. 70, 30 L. R. A. 286, in which case the court says: "When the executor or administrator,

he had no assets, there was no consideration for the note, and his promise to pay was nudum pactum."

70. Byles on Bills (16th ed.), p. 62. The executors of every person are implied in himself and bound without naming; per Lord Macclesfield, in Hyde v. Skinner, 2 P. Wms. (Eng.)

196.

71. Morse v. Clayton, 13 Smedes & M. (Miss.) 373.

72. Parsons on Notes and Bills, p. 154.

73. Beach v. King, 17 Wend. (N. y.) 197, in which the court says: "The defendant cannot be administrator unless letters of administration of the goods, chattels, and credits of the intestate had been granted to him by one of the surrogates of this State., The proper mode of pleading the fact, is by direct allegation that such letters were granted. The defendant has not pursued that course, but pleads that he was duly appointed administrator. This allegation consists partly of matter of fact and partly of mat

75

d. Indorsement by executor or administrator.- A promissory note or bill of exchange, made payable to the deceased or his order, may be indorsed by his executor or administrator.74 And, generally speaking, there is no difference between an indorsement of a note by the deceased, and one by his personal representative." It is provided in the Negotiable Instruments Law that where any person is under obligation to indorse in a representative capacity, he may indorse in such terms as to negative personal liability." A delivery of a note, indorsed by the payee before his death, by the executors of such payee, without their indorsement, is insufficient to pass title; there must in every case be an indorsement and delivery by the executors." The question of the sufficiency of an indorsement to pass title will be considered hereafter.78 An executor or administrator may, under certain conditions, be compelled to indorse a bill or note; as where the decedent made a valid contract, for the consummation of which delivery and indorse

ter of law, and is not capable of trial. That the defendant was appointed administrator by somebody, or in some form, is a question of fact; but whether he was duly appointed or not is a question of law. The defendant should have stated how he was appointed, and then the court could determine its sufficiency upon demurrer, or if an issue to the contrary were joined upon the fact of having obtained letters, the question could be determined by jury.'

74. Rawlinson v. Stone, 3 Wils. (Eng.) 1; Clark v. Blackington, 110 Mass. 374; Rogers v. Zook, 86 Ind. 237; Latta v. Miller, 109 Ind. 302; Hertell v. Bogert, 9 Paige (N. Y.), 52; Walker v. Craig, 18 III. 116; Makepeace v. Moore, 10 Ill. 474; Wilson v. Doster, 7 Ired. Eq. (N. C.) 231; Weider v. Osborn, 20 Ore. 307; Mackey v. St. Mary's Church, 15 R. I. 121, 23 Atl. 108, 2 Am. St. Rep. 881; Abercrombie v. Stillman, 77 Tex. 589; Cahoon v. Moore, 11 Vt. 604; Cleve land v. Harrison, 15 Wis. 670.

maintain actions in their own names against the debtors in another State, if the debts are negotiable promissory notes, or if the law of the State in which the action is brought permits the assignee of a chose of action to sue in his own name. Wilkins v. Ellett, 108 U. S. 256, 2 Sup. Ct. 641.

Where executors who had also been appointed trustees under the will indorsed a note as rustees, it was held sufficient to pass title notwithstanding the misdescription. Ward v. Venner, 173 Mass. 210, 53 N. E. 395.

75. Watkins v. Maule, 2 Jac. & Walk. (Eng.) 243.

76. Neg. Inst. L. (N. Y.), § 74; post, chap. V, § 65; English Bills of Exchange Act, 1882, § 41.

77. In a case where the payee of a note, made payable to him or his order, had indorsed it, but had died without having made any delivery of it, and after his death his executors had merely delivered it so indorsed to the plaintiff, it was held that he could not maintain his action on the note:

- for the indorsement of the testator

The administrator, by virtue of his appointment and authority as such, obtains the title in promissory notes was incomplete without a delivery by or other written evidences of debt, him, and the delivery by his execheld by the intestate at the time of utors without any indorsement by his death, and coming to the posses- them was inefficacious. Bromage v. sion of the administrator; and may Lloyd, 1 Exch. (Eng.) 32; Bishop v. sell, transfer, and indorse the same; Curtis, 18 Q. B. (Eng.) 879. and the purchasers or indorsees may 78. See post, chap. V, § 56.

ment of a bill or note is required.79 And where the decedent delivered a note to a person for a valuable consideration, but without indorsement, thereby creating a perfect equitable title, though not a legal one, the holder may in equity compel the executor or administrator of the decedent to give a formal transfer.80

e. Presentment for payment, notices, etc.- Presentment, notice of dishonor, and payment should be made by and to the executor or administrator, in the same manner as by or to the decedent.81 Where the person primarily liable on the instrument is dead, and no place of payment is specified, presentment for payment must be made to his personal representative, if such there be, and if, with the exercise of reasonable diligence, he can be found.82 If the holder of the bill be dead, and the executor has not yet produced the will for probate, it is nevertheless the duty of the executor to present the bill when presentable.83 This is so since the title of the executor is derived exclusively from the will, and it vests in him at the moment of the testator's death.84 A different rule exists as to administrators.

79. Parsons on Notes and Bills, p. 160.

80. Watkins v. Maule, 2 Jac. & W. (Eng.) 237. Upon the death of the holder of a promissory note, the right of transfer thereof vests in his personal representatives, as well as the power to indorse, and perfect the negotiation of such paper previously transferred by him without indorsement. Malbon v. Southard, 36 Me. 147, 148.

An administrator's title to his

as

of an administrator, deriving his powers from the appointment of the ordinary, and an executor deriving his powers from the will, of which the letters testamentary, granted by the ordinary, are the due and proper authentication. The property of goods is vested in the executor before probate. He may pay and receive debts; may commence an action, though he shall not declare; because when he 81. Parsons on Notes and Bills, p. declares, he must make profert of his 160, says: "In general it is within letters testamentary, if he sues the power and duty of executors or executor, or if the will is a part of administrators to present for accept the proof necessary to his title; but ance or for payment, and give notice he may maintain trover before proof nonacceptance or nonpayment, and bate, for goods of the testator taken make protest, in the same manner, out of his possession; for there the ceased could and should have done. profert of letters testamentary is not An administrator can do And all presentments and demands, necessary. and all notices, may and should be nothing, though entitled to adminmade against or given to them in like istration, before administration is manner as against or to the deceased." granted to him, inasmuch as 82. Neg. Inst. Law, § 136; Eng. derives his authority, not like an Bills of Exch. Act, 1882, § 41. the will, but en83. Byles on Bills (16th ed.), p. 63. tirely the appointment of 84. Wooley v. Clark, 5 B. & Ald. the ordinary. But the title of an (Eng.) 744. executor is derived from the will itself, and he may perform most of the acts incident to his office, before probate. Rand v. Hubbard, 4 Metc. (Mass.) 252, 256.

and for the same causes as the de

Distinction between executor and administrator.- There is a broad and marked distinction, recognized in the common law, between the authority

executor from

from

he