The opinion of the court was delivered by
Isham, J.
The note on which this action is brought is made payable to Thomas Fletcher or bearer. Its consideration was money loaned to the defendant by Messrs. Scott & Fletcher as guardians of Thomas Fletcher. The actual possession of this note by the plaintiffs is evidence of their title, and of their having that legal interest which will enable them to sustain this action in their names. The note being payable to bearer is transferable by delivery, and by such transfer the legal interest passes the same, *101prima facie at least, as if the note had been indorsed by the payee; Boardman v. Rogers, 17 Vt. 589" court="Vt." date_filed="1845-04-15" href="https://app.midpage.ai/document/boardman-v-roger-6573225?utm_source=webapp" opinion_id="6573225">17 Vt. 589. ít is insisted, however, that the plaintiffs are wrongfully in the possession of this note; that Messrs. Scott & Fletcher had no right to the note themselves, ¡and consequently could transfer none to tiie plaintiffs. We have no doubt that the principle is well settled, that a note transferred by delivery or indorsement passes no title or interest if the person making the transfer had himself no title or property in the note; and particularly is this true, if the'indorsee or person to whom it is delivered, knew that the person making the transfer had no right or interest in it; Byles on Bills, 61, 125; Murston v. Allen, 8 Mes. & Wels. 494; Mead v. Young, 4 Term. 28. To defeat She title of a holder of anote, however, when payable to bearer, it must appear that the holder is a party to' the wrong by which it comes into his hands, or that he has been guilty of such negligence as amounts to constructive fraud; 1 Parsons on Cont. 213; Wheeler v. Guild, 20 Pick. 545; Goodman v. Harvey, 4 Adol. & E. 870; Uther v. Rich, 10 Ad. & El. 784. On the question as to the right of these plaintiffs to this note, and their right to sustain this action, it may be observed that the defendant does net pretend but that he justly owes the amount, and that he should pay it to some one. It is quite immaterial to him, therefore, to whom the note is paid, or who Recovers upon it, provided when it is paid or a recovery had, it will bar any further claim on the note by others. To that extent it is competent for the defendant to contest the title of the plaintiffs to the note, and their right to sue upon it; but to no greater extent, and for no other purpose, does the question become material in a suit against the maker.
The note in this case was transferred by delivery to .the plaintiffs by the guardians of Thomas Fletcher, with directions to collect the same for the benefit of his estate. We have no doubt as to the right of the guardians to transfer this note in that manner; and for that purpose it is quite immaterial whether the delivery or transfer was made before or after the death of Thomas Fletcher. It is true that their power as guardians ceased on the death of their ward; but it does not follow that that event determined their right and interest in this note which they had taken, and for the amount of which they were responsible on the settlement of their *102account as guardians. The note would probably be evidence that its consideration proceeded from the estate of Thomas Fletcher. But as the note was given during their guardianship, it was competent for them to consider themselves as debtors for that amount to their ward or to his estate, and to retain the note as their own and as having the legal title and interest in it. The same principle applies to executors and administrators when notes are given to them during their administration of the estate. The guardians were under no obligations to deliver over that note to the estate of their ward, as they were at liberty to otherwise settle the amount due from them as guardians. They had the right, before its delivery to the plaintiffs, to release or transfer the note to any person, and could have sustained an action upon it in their own names as bearers, without making any reference to their relation as guardians. The principle would be the same if the note had been payable to them or bearer as guardians. They could in such case have treated the note as if payable to themselves, and have prosecuted it in their own names and in their own right. That right by the transfer and delivery of this note, has passed to the plaintiffs ; and had they paid a consideration for it, they could have recovered the note for their personal use and benefit; but not having paid such consideration they can recover as trustees for those who are beneficially interested in its avails. Independent, therefore, of any question arising from the action of the probate court appointing the plaintiffs administrators on the estate of Thomas Fletcher, we think the plaintiffs have that title and legal-interest in this note which will enable them to sustain this action.
We think, also, the plaintiffs have a good title to this note as administrators on the estate of Thomas Fletcher, and the right to sue for and receive its avails as trustees of that estate. It appears that they were appointed and commissioned as such administrators on the 15th of August, 1855 ; and for the benefit of that estate the note was handed to them for collection. The appeal taken from that decree of the probate court appointing them administrators,- suspended their power to act as such administrators during the pendency of that appeal. If anything -was required to be done for that estate during the prosecution of that appeal, it was within the power and duty of the probate court to appoint an *103administrator pendente lite; Comp. Stat. 336, sec. 6; Arnold v. Sabin, 4 Cushing 46. But the power of such an administrator would cease when the appeal was determined. If the appeal was entered in the appellate court by the party appealing, the action of the appellate court would possibly be necessary in affirming the decree of the probate court in their appointment of administrators, or it may be affirmed at the instance of the appellee; Comp. Stat. 222, sec. 20. But if the appeal was not entered in that court, and for that reason has become discontinued, so that no further prosecution of it can be made, the appointment of administrators from which that appeal was taken is no longer suspended. That appeal did not vacate the decree of the probate court, for the jurisdiction of the probate court in the settlement of that estate was not thereby removed; it was merely a suspension of that decree and of the powers of the administrators under it during its prosecution ; and when that appeal was discontinued, and there was no reversal of that order of the probate court, that suspension of the decree ceased also, and the right and power of the administrators revived under their letters of administration, and has effect from the time of their appointment by the probate court; Curtis v. Beardsly, 15 Conn. 522. Whether this appeal for the want of notice, was ever so perfected as to even suspend the order of that court, we are not called upon to determine, for to give that appeal its full effect, we think, by its subsequent discontinuance the rights and powers of these administrators are perfected. As such administrators they have a good title to this note, and as the legal bearers of it they can prosecute it. in their own names, for the benefit of the estate.
The judgment of the county court must be affirmed.