Borst v. Bovee & Reid — 5 Hill & Den. 219

Majority

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J. I. Borst vs. Bovee and Reid.

Headnote

If an executor take up a note made by his testator, he will be deemed, in the absence of evidence to the contrary, to have done so animo solvendi, and the endorsers will thereby be discharged. Per Cowen, J.

In an action against the endorsers of a note made by one H., who died in December, 1835, leaving a will, it appeared that, after the note fell due and before letters testamentary were issued to the executor, he applied to the payee, proposing to take it up by giving another signed by him in his representative capacity, which was declined; that in January, 1836, he obtained the note on becoming personally bound to pay the amount, declaring at the time that he “ wanted or meant to hold it against the estate, or as his securitythat in 1838 he made an ineffectual attempt to have it presented as a claim against the estate for his own benefit, but in the name of another; and that in 1839 he transferred it to the plaintiff. Held, that the endorsers were not liable.

Held further, that evidence of the estate being insolvent was inadmissible to repel the presumption of the executor’s intent to pay ; especially as it was not pretended that he knew or had reason to believe the estate to be insolvent when he took up the note.

Assumpsit, tried at the Montgomery circuit in May, 1840, before Willard, C. Judge. The action was on a promissory note made by James Halladay, for $300, dated September 11th, 1835, payable to the order of M. J. Bovee, at the Montgomery County Bank, ninety days from date. The note was endorsed by M. J. Bovee and W. Reid, and discounted by the bank for Halladay. It was duly protested for non-payment, and notice given to the endorsers. Halladay died soon after, having appointed M. I. Borst his executor, who, before probate of the will, proposed to Wells, the cashier of the bank, to substitute his own note as executor, with the same endorsers. The cashier testified that he declined this proposition, but told Borst he would discount his (Borst’s) note for the amount. Accordingly, on the 19th of January, 1836, Borst made a note for the sum then due on the one in question, saying, however, that he did not like to give his own note, and that “ he wanted or meant to hold the note in question against the estate or as his security.” The first note was

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then delivered up to Borst, who transferred it to the plaintiff ir. the spring or summer of 1839. Borst testified that he gave his own note endorsed by Reid and Corey, telling the cashier at the time that ho meant to hold the endorsers on the note in question as his security ¡ that he did not take out letters testamentary till some months afterwards ; that he first passed the note to one Shuler in May, 1838, for the purpose of having it presented in his (Shuler’s) name, but for witness’ benefit, as a claim against the estate ; and that he did this for the reason that he had a large amount charged against the estate as executor. The plaintiff offered to prove that Halladay’s estate was insolvent, but the judge refused to hear the evidence. Exception. The judge also decided that the plaintiff was not entitled to recover against the endorsers, and directed a nonsuit. The plaintiff’s counsel again excepted, and now moved for a new trial on a bill of exceptions.

A. C. Paige, for the plaintiff.

N. Hill, Jun., for the defendants.

If the insolvency of the estate could be material to repel the inference that Borst meant to pay the note, it must have been because he knew or had reason to believe the estate insolvent when he gave his note. The naked fact that the estate was insolvent, made nothing towards that inference; to raise which, it is said, was the purpose of the proof. Therefore the offer to introduce it was properly overruled upon the ground of irrelevancy.

The relation of executor, which Borst held to the estate, would, in the absence of proof of a different intention, raise the presumption that he meant to pay the note, not to take it as a purchaser. His proposition to give his own name as executor on the substituted note strengthens the inference. This is not repelled or shaken by what Wells understood him finally to say; while it is placed beyond all doubt by his transferring the

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note for the purpose of having it brought into account against the estate through Shuler.

That he meant to take the note as a purchaser, is not even stated by himself; but only that he told Wells he meant to hold the endorsers (the defendants) as his secmity. This he could not do if he meant to pay the note, which was clearly shown, even independently of the great delay before the endorsers were called on. This delay, and the attempt to bring the note into account against the estate, operated as a practical application of the substituted note to the payment of the one in dispute, even if the question had stood open on the other proof. Such an appropriation of a note over which Borst had the absolute control ought alone to conclude him.

New trial denied.