3 N.H. 67 | Superior Court of New Hampshire | 1824
It is settled, that an executor cannot be held as the trustee of one, to whom a pecuniary lega
The only remaining question is, whether he can be charged as having made the debt his own, by giving his note to the wife of the principal ?
With regard to the property delivered by the principal to his wife, for her use, it is clear, that the trustee cannot be held. She must be considered as having disposed of the property with the husband's express assent, and he and his creditors will be bound by her acts, unless they .can be avoided on the ground of fraud. But the question of fraud cannot be raised in this case. The interest is passed to Mrs. Beck-with ; and if the plaintiffs wish to avoid the acts of the wife, on the ground of fraud, Mrs. Beckwith must be made a party. 13 Mass, Rep. 215, Gordon vs. Webb, and trustee.
But there is another objection to charging the trustee, which goes to the whole amount of the note. There is no doubt, that a note, payable to a wife, is the property of the husband ; and if the wife had, iu this case, made no disposition of the note, the trustee might have been charged. 13 Mass. Rep. 215, Gordon vs. Webb, and trustee.
But the trustee cannot be charged, unless Mrs. Baxter's act, in receiving the note, payable to herself, is adopted ; and and if she is in that transaction to be treated as the agent of the husband, she must he treated as such through the whole business. For it would be unreasonable to hold, that the trustee was bound by his promise to the wife, and yet should not avail himself of a payment made to the wife, according to the promise. The trustee, with the assent of Mrs. Baxter, has taken up the note given to her, and given a new note to another person. If Mrs. Easier i« to be considered as the agent of the husband, this is a payment, os respects him.
It is well settled, that contracts made for the benefit of another, without his privity, may be rejected or affirmed at his election. But, by making the election to affirm, he adopts the agency altogether, as well that Which is not beneficial, as that which is. 2 Strange 859, Wilson vs. Poulter.—7 East 166.—Paley's agency 145.
' We are, therefore, of opinion, that the trustee must be discharged.
