5 N.H. 63 | Superior Court of New Hampshire | 1829
As soon as the executor had given bonds to the judge of probate to pay the debts and legacies, all the estate of the testator, not specifically devised to others, vested in the executor absolutely. 5 Pick. 337, Clark v. Tufts; 16 Mass. Rep. 172, Thompson v. Brown; 4 Pick. 97.
And all the debts of the testator became, in fact, the debts of the executor, who thus becoming at the same time both debtor and creditor with respect to the note given him by the testator, the note must be considered in law as discharged and the debt extinct.
It is very clear, that the note, thus becoming satisfied and discharged, could not be afterwards negotiated. 3 Mass. Rep. 556, Blake v. Sewell.
And Whiting acquired no right by the endorsement to maintain an action against Samuel Tarbell, as executor.
This view of the case shows, that Russell and Elliot, the sureties, cannot be affected by the judgment, which has been rendered in favour of Whiting, against the executor. They were no parties to that judgment, and cannot he precluded by it from showing, that there was nothing due from the estate of the testator to Whiting. 3 N. H. Rep. 491, Gookin v. Sanborn.
It only remains to enquire, whether it ought, under the circumstances, to be sustained upon the application of the executor ?
And we are of opinion, that the petition ought not to he sustained on his application. Having sold the note to Whiting, the executor ought not to be heard to complain of the judgment on his own account. If Whiting obtain satisfaction from any estate of the testator, which belongs to the executor, complete justice is done. But there may be creditors of the testator, there may be purchasers of the testator’s estate from the executor.
The judgment, however, which Whiting has obtained against the executor, will not stand in the way of either of these ; for they are strangers, and may falsify it. 4 Cowen, 457, Griswold v. Stewart; 2 N. H. Rep. 443, Thrasher v. Haines.
duplication denied.