assigninent for the private debt of the exccutor or administrator is a fraud on the estate of the deceased, and passes no property to an assignee who has notice or knowledge, even if he paid value.(1)

If there be several executors or administrators, the bills and notes of the deceased may be indorsed by either one of them. For they are esteemed in law but as one person; and the acts of one of them relating to the sale and transfer of the testator's effects are the acts of all.(u) Whether the same rule will apply to notes taken by them for debts due to the estate, has been con

payable to A or order, and indorsed by the administratrix of A. It was objected that the indorsement was not valid so as to give the indorsee an action in his own name. But the objection was overruled, “because," the reporter adds, "it is well known to be the constant practice and usage among merchants for executors and administrators to indorse and negotiate both promissory notes and bills of exchange; and the courts of justice will always endeavor to adapt the rules of law to the usage and course of trade, ad ea quæ frequentius accidunt jura adaptantur; and the courts of law are warranted in this by the words of the statute of Anne, which says, that promissory notes payable to any person or persons, his, her, or their order, shall be assignable or indorsable over in the same manner as inland bills of exchange are or may be, according to the custom of merchants. The equitable interest in the note is converted into a legal interest, and the whole interest is vested in the administrator, who, before the statute, might have assigned his equitable interest, and since the statute, may now assign his legal interest." Mr. Justice Denison further said: "That if it had appeared to the court upon a special verdict that there was no such custom among merchants as for administrators to indorse or assign bills of exchange, it would have been a very different case from the present; but that no such thing appeared, and in truth, that the custom is for administrators to indorse and assign bills; that he previously had some notice of this case coming before the court, and therefore had inquired touching the usage among merchants, and been well informed that it was the constant usage amongst them for administrators to indorse and assign over bills of exchange made payable to their intestates or order." See also, Watkins v. Maule, 2 Jac. & W. 237, 243; Shaw, C. J., in Rand v. Hubbard, 4 Met. 252, 258; Owen v. Moody, 29 Missis. 82; Makepeace v. Moore, 5 Gilman, 474.

(1) Makepeace v. Moore, 5 Gilman, 474; Miller v. Helm, 2 Smedes & M. 687; Scott v. Searles, 7 Smedes & M. 498; Miller v. Williamson, 5 Md. 219.

(u) Dwight v. Newell, 15 Ill. 333; Mosely v. Graydon, 4 Strob. 7; Wheeler v. Wheeler, 9 Cowen, 34. In Shep. Touch. 484, it is said: "All the executors, where there be more than one, be they never so many in the eye of the law, are but as one man; in which respect the law doth esteem most acts done by or to any one of them, as acts done by or to all of them. And, therefore, the possession of one of them of the goods and chattels of the deceased is esteemed the possession of them all; payment of debts by or to one of them is esteemed payment by or to them all; the sale or gift of one of them of the goods and chattels of the deceased, the sale and gift of them all; a release made by or to one of them is a release made by or to them all; and the assent of one of them to a legacy, the assent of them all. And, therefore, if there be two executors, and one of them deliver up the obligation to the debtor whereby he is bound, the other executor shall not recover it in a detinue."

sidered doubtful.(v) It would seem to depend upon the question already noticed, namely, whether such notes are to be considered as assets. And it being now settled that they are, it seems that they may be indorsed as effectually by one executor as by all. (w)

A delivery without indorsement by an executor or administrator does not pass the legal title, except in the case of paper transferable by delivery. And if the deceased indorsed the note in his lifetime, but did not deliver it, it has been held that a delivery by the executor will not complete the transfer. An indorsement without delivery will no more transfer the legal title, than delivery without indorsement. In the case supposed, therefore, the legal title to the note would remain in the payee at the time of his death, and would then pass to his executor, as in the case of other personal estate; and that title could be transferred only by the indorsement and delivery of the executor, because there is no other legal mode by which a transfer of a bill or note payable to order can be made.(x)

(r) In Smith v. Whiting, 9 Mass. 334, it was held, that one of two executors could not assign a negotiable promissory note, made to them as executors, for a debt due to their testator. The court said: "The question is, whether one of two executors is competent to transfer by indorsement a negotiable promissory note made to the two in their character. of executors. The promisees, not being copartners, had each but a moiety. One, therefore, could not assign the whole. Nor was it competent for him to assign his moiety." And see Sanders v. Blain, 6 J. J. Marsh. 446; Regina v. Winterbottom, 2 Car. & K. 37, 1 Den. C. C. 41; Byles on Bills, p. 40, note p, p. 44, note u. (w) Bogert v. Hertell, 4 Hill, 492.

(x) Thus, in Bromage v. Lloyd, 1 Exch. 32, H. indorsed a promissory note, but did not deliver it. After the death of H., his executrix delivered the note to the plaintiff. Held, that the plaintiff had no title to sue on the note. Pollock, C. B. said: This is an action on a promissory note, upon which a party has written his name, and after his death his executrix delivers the note to the plaintiffs without indorsing it; so that there is a writing of his name by the deceased, and a delivery by his executrix. Those acts will not constitute an indorsement of the note; the person to whom it is so delivered has no right to sue upon it." Alderson, B.: "The promissory note was made payable to the testator or order'; that means order in writing. The testator has written his name upon the note, but has given no order; the executrix has given an order, but not in writing. The two acts being bad, do not constitute one good act." Rolfe, B.: "The word 'transfer' means indorsement and delivery." So in Clark v. Sigourney, 17 Conn. 511, A gave his note to B, payable to B or order on a certain future day. This note B retained in his hands, doing nothing else with or in relation to it, until his death, which was long after it fell due. It afterwards came into the hands of C, the widow and executrix of B, with the name of B written in blank by him on the back of it; and C delivered it, in the state in which she found it, to D, for a valuable consideration. In an action brought by D, as indorsee of the note, against A, as the maker, alleging that B, by his indorsement in writing under his hand ordered the contents thereof to be paid

If the deceased made a valid bargain concerning a note or bill, and indorsement and delivery are necessary to carry this into effect, the executor or administrator not only may indorse and deliver the note or bill, but equity will compel him to do so. A fortiori, if the deceased delivered the note for a valuable consideration, without indorsement, as he thereby created a perfect equitable (though not a legal) title; the holder, having an equitable right, may in equity compel the executor to give a formal transfer.(y)

In general, it is within the power and duty of executors or administrators to present for acceptance or for payment, and give notice of non-acceptance or non-payment, and make protest, in the same manner and for the same causes as the deceased could and should have done. And all presentments and demands, and all notices, may and should be made against or given to them in like manner as against or to the deceased. These things will be stated more fully in the chapters on Presentment, Demand, and Notice. There is, however, a difference between the origin and commencement of the powers and duties of an executor, and

to D, it was held (Williams, C. J. and Waite, J. dissenting), 1. That as D claimed title to the note, by an immediate indorsement of it to him by B, it was necessary for D, in order to sustain that title, to prove such an indorsement; 2. That the word indorsement, as applicable to negotiable paper, imports a transfer of the legal title to the instrument, by contract; 3, That the consummation of this contract must be shown, by a delivery by the party making the transfer to the party to whom it is made, and an acceptance by the latter, the mere act of the payee's writing his name on the back of the instrument not being sufficient for this purpose; 4. That the legal title of the note being in B at the time of his death, it then vested in C, his executrix, and could be transferred only by her indorsement; 5. That C, as executrix, or otherwise, had no authority to deliver the note as a note indorsed by B; 6. That D, consequently, had acquired no legal title; 7. That as the note came into D's hands after it became due, it was subject to the defence of want of legal title in him. So in Clark v. Boyd, 2 Ohio, 56, it was held, that an assignment indorsed upon a note, and the note retained by the assignor until his death, vests no interest in the assignee. The court said: "The assignment made by the assignor, while the note remained in his possession, and where no contract of sale was proved, was a mere nullity. It was in his own power, and could at any time be legally erased. It gave no interest or title to the assignee, and when Pierce died he was the absolute owner of the note, notwithstanding the assignment. The right vested by his death in the executors, and could only be assigned by them. The plaintiff acquired no more right by a delivery from the hands of the executors than he could have acquired had they delivered him a note payable to the testator, without any indorsement." See also Michigan Ins. Co. v. Leaven. worth, 30 Vt. 11.

(y) Watkins v. Maule, 2 Jac. & W. 237; Malbon v. Southard, 36 Maine 147.

those of an administrator. The first begin from the appointment in the will, both as to source and as to time; and, therefore, an executor may do and receive these things after the death of the testator, and before probate of the will. But an administrator, although the persons who have a right to the administration are pointed out by the law, derives all his authority from the appointment as an act of the law, and therefore can do nothing until the appointment.(z)

If there be probate of a will, the executor therein named is fully authorized to be regarded as such, until the probate is annulled. Hence payment to an executor under a forged will is valid after probate, but not before. But this must be qualified. so far as to prevent a party, having knowledge of the forgery and making the payment in fraud, from profiting by his fraud.

An administrator or executor can only bind himself by his contracts; he cannot bind the assets of the deceased. Therefore, if he make, indorse, or accept negotiable paper, he will be held personally liable, even if he adds to his own name the name of his office, signing a note, for example, "A, as executor of B; for this will be deemed only a part of his description, or will be rejected as surplusage. (a) But if he chooses to exclude his personal liability expressly, as by the words, "I promise to pay, &c. out of the assets of C. D., deceased, and not otherwise," or use any clearly equivalent language, then he is only bound so far as the assets extend. But the instrument, in that case, will not be a bill of exchange 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.(b)

At common law, an executor was considered as residuary legatee. For this reason, and also for the technical reason that an executor could not sue himself, if the payee and holder of a note made the maker his executor, the note was thereby dis

(2) Woolley v. Clark, 5 B. & Ald. 744; Rand v. Hubbard, 4 Met. 256; Allen v. Dundas, 3 T. R. 125.

(a) Childs v. Monins, 2 Brod. & B. 460; King v. Thom, 1 T. R. 489; Aspinall v. Wake, 10 Bing. 55; Davis v. French, 20 Maine, 21; Walker v. Patterson, 36 Maine,

273.

(b) Thacher v. Dinsmore, 5 Mass. 299; Forster v. Fuller, 6 Mass. 58. And sce ante, pp. 36, 80, 89-91.

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charged; and if the holder of a bill appointed the acceptor his executor, this discharged the acceptor, and therefore all subsequent parties. (c) The only exceptions were, that the rule did not apply if the assets were not enough, without the bill or note, to pay the creditors, and perhaps, for this is not clear, the legatees; or that the executor refused the appointment. (d) For the rule has been applied where, of several joint debtors, one was appointed executor; (e) and even although they were joint and several; and although the person appointed executor died without having proved the will.(ƒ)

This rule was never held to apply to administrators; (g) nor does it exist in equity in respect to executors. The debt is considered to have been paid by the executor to himself, and becomes assets in his hands.(h)

In this country, the action upon a note or bill by an executor against an executor is as impossible as in England; but a principle similar to that of the equity courts in England has always prevailed in the probate courts of this country. That is, the executor is charged with the amount of the debt as if paid to him.(i) An administrator must account for his debt to his intestate in the same way. And it has been said that the reasons for the discharge of the right of action apply as effectually to an administrator as to an executor.(j)

A bequest of a bill or note to a party liable upon it discharges his liability, of course. But a bequest to any party "of all the property" in a house does not, it is said, carry to him any bills or notes contained in the house; unless they are bank-notes, which are considered as cash.(k) We should be inclined to think, however, that a bequest of " property," or a bequest using

(c) Freakley v. Fox, 9 B. & C. 130; Wankford v. Wankford, 1 Salk. 299; Cheet ham v. Ward, 1 B & P. 630; Nedham's Case, 8 Rep. 135; Byles on Bills, 41

note v.

(d) Wankford v. Wankford, 1 Salk. 299; Abram v. Cunningham, 1 Vent. 303 (e) Com. Dig. Admin. B. 5.

(f) Wankford v. Wankford, 1 Salk. 299; Com. Dig. Admin. B. 5.

(g) Nedham's Case, 8 Rep. 135.

(h) Williams on Executors, 816; per Lord Tenterden, C. J., in Freakley v. Fox, 9 B. & C. 134.

(i) Ipswich Man. Co. v. Story, 5 Met. 310.

(j) Stevens v. Gaylord, 11 Mass. 256.

(k) Byles on Bills, 135, note g.