23 A. 108 | R.I. | 1885
An executor, under the laws of one state, cannot indorse a note so as to enable the indorsee to sue in another state. Bibb
v. Skinner, 2 Bibb, 57; Sanford v. Mickles Forman, 4 Johns. Rep. 224; Thompson v. Wilson,
A note or obligation to joint payees cannot be transferred by one, but must be indorsed and transferred by all of them. This rule is applicable to notes made payable to joint administrators.Sanders v. Blain's Administrators, 6 J.J. Mar. 446; Smith
v. Whiting,
James Duffy, administrator, had the right to collect and compromise the claims and to release the defendants. Schouler Executors and Administrators, § 400, n. i.; 2 Daniel Neg. Instr. § 1289.
Kelly's transfer was as administrator in New York, as security for a debt contracted as such administrator; while he held the note as administrator in Connecticut, where William E. Duffy resided and died, and it was inventoried as a part of the Connecticut estate, where it was found. He therefore had no interest in the notes as administrator in New York.
The seal upon the note of June 25, 1878, destroyed its negotiability. 1 Daniel Neg. Instr. §§ 31, 32. Conine v.Junction B.R.R. Co. 3 Houston, 289; Clegg v. Lemessurier,
15 Grat: 108; Mann v. Sutton, 4 Rand. 253; Hopkins v.Railroad Co. 3 W. S. 410; Clark v. Farmers' Manufac. Co.
15 Wend. 256; Parks v. Duke, 2 McCord, 380; Lewis v.Wilson, 5 Blackf. 370; Helfer v. Alden, Cutter Hull,
Upon this state of facts several questions arise.
First. Can an executor or administrator under the laws of one state indorse a note so as to enable the indorsee to sue in another state?
This question was fully examined and discussed in Petersen
v. Chemical Bank,
While there are cases which hold to the contrary, e.g.Thompson v. Wilson,
Upon the other grounds, the cases which uphold the transfer seem to us to stand upon the better reason. The title to a negotiable instrument passes by indorsement, and if indorsed by an administrator, who is the representative of the deceased owner, in the proper settlement of an estate and without affecting the rights of other parties, why should its effect be limited to the boundaries of the state where the deceased lived? Not only would this limit be negotiability of the instrument, but it would cast upon an administrator the unnecessary burden of procuring letters of administration *124 in another state simply to collect an admitted debt. Moreover, suppose the administrator, indorsee, and maker lived in the same state at the time of the indorsement, but that the maker subsequently removed to another state, could it be claimed that the indorsee would be barred from suing in the second state because his title came through an administrator who would himself be incapable of bringing suit in that state? Yet the elements of title, in the case supposed, would be the same as in the case in question. We see no reason why the residence of the maker should affect or control the plaintiff's title or his right to sue. The right of action is transitory; the holder of a note must collect of the maker where he can find him. If therefore, as against the maker, the holder's title to a note is good, his right of action should be good also. We therefore hold that, in a case like this, in which no interests but those of the parties to the note are involved, — and we say this without passing upon the effect of a transfer when there are creditors in this State, — an administrator in another state my transfer a note upon which the indorsee may sue in this State.
Second. Can a note given to two joint administrators be transferred by one of them? There is no question that one of two executors or administrators may transfer notes held, by the deceased, for the reason that the several persons are considered as holding one office, and, in the settlement of the estate, the act of one is equivalent to the act of all; the power of the office may be fully exercised by one, for each takes the whole in his representative capacity, and not a moiety. Stone v. UnionSavings Bank,
Third. Could the administrators in New York transfer in that State a note on which, by reason of the domicil of the intestate, they were accountable in Connecticut? If the administrators in New York were not the same as the administrators in Connecticut, clearly they could not, for in that case the property in the notes would not have passed to them. But they were the same persons. Under their dual authority they had the whole of the estate. The transfer does not show in which capacity Kelly claimed to act. We do not think that the mere fact that he acted in New York, though he might ultimately be accountable in Connecticut, rendered his act invalid. The validity of an administrator's act depends upon its character rather than upon the locality where it is done. Judge Story, inTrecothick v. Austin, 4 Mason, 16, 35, says: "A will bequeathing personal estate conveys that property wherever it may be situated, if the will is made according to the law of the place of the testator's domicil. And it has never been supposed that it was indispensable to the assertion of a title, derived under such will, that there should be a probate in every place where such property was situated." In this case, as also inHutchins, Adm'r, v. State Bank, 12 Met. 421, transfers of property by foreign *126 executors were recognized. In Wilkins v. Ellett, 9 Wall. 740, a payment to a foreign administrator was held to be good against an administrator afterwards appointed in the state where the debtor resided. Many cases might be cited where payments of debts outside of the jurisdiction of the court appointing the representative have been upheld.
In Shakespeare v. Fidelity, c. Co. 97 Pa. St. 173, it was held that United States coupon bonds, deposited with the defendant for safe keeping, were properly delivered, in Philadelphia, to a foreign executor. Very often the powers given to executors by wills are broader than those which the law gives to an administrator, and most of the cases on this point relate to executors. But with reference to the settlement of the estate their powers and duties are the same. In either case, however, the letters testamentary of an executor have no greater extra-territorial force than letters of administration. What an executor can do, as the representative of the deceased, regardless of special powers, an administrator may do. In the recent case of McCord et al. v. Thompson et als. Adm'rs,
From this review of the law, it appears that the notes could be legally transferred from Kelly, as administrator, to the plaintiff. From the testimony it appears that they were transferred for adequate consideration in part payment of a claim, which was subsequently passed upon and allowed, for a larger sum than the amount of the notes, by the surrogate in New York. While the evidence shows that the transfer was made by Kelly as soon as he learned that his coadministrator, Duffy, had taken steps to collect the notes and that it may have been made to prevent Duffy from getting the proceeds of the notes into his hands, still we cannot, simply *127 from this, infer that it was fraudulent, when it appears to have been made upon good consideration, and with immediate notice to the defendant. The testimony shows that the transfer of the notes to the plaintiff was talked over at the time of the settlement, April 30, 1881. A payment made after such notice could not avail as against the plaintiff, who then held the notes and who had demanded payment.
One more question remains. A paper seal was pasted upon one of the notes, and the defendant claims that this made it non-negotiable. The vote of the corporation did not authorize the treasurer to make a note under seal; the note itself does not purport to be under seal; it is not the seal of the corporation, and the treasurer, who has been a witness, did not state that it was his seal, or that he put it on. In other respects it is in the form of an ordinary negotiable promissory note. We think, therefore, that we must consider the paper, as suggested by plaintiff's counsel, "a piece of unnecessary ornament," or, in the words of Jones v. Horner, 60 Pa. St. 214, disregard "the seal as a mere excess."
We conclude, therefore, that the plaintiff is entitled to recover the amount due upon the notes when they came into his hands.
Judgment for plaintiff