Scott v. Parker

McAdam, C. J. The note sued upon was not an ot¡Jigation made to the estate represented by the plaintiffs. The maker owed the estate nothing at the time the note was made. It was given to the executors for an advance of money made by them, and the action should have been brought in their names as individuals. This objection was not raised in the answer or in the court below, and the addition of the title of “executors,” etc., to their names may therefore be regarded as surplusage. The note was in legal effect payable to bearer, under the provision of the statute which provides that “such notes, made payable to the order of the maker thereof, or to the order of a fictitious person, shall, if negotiated by the maker, have the same effect, and be of the same validity, as against the maker and all persons having knowledge of the facts, as if payable to bearer. ” 2 Rev. St. (6th Ed.) p. 1160, § 5. The estate of William H. Beach could neither speak, think, nor act. It consisted of certain inanimate and incorporeal things called “property, ” of which he died seised. The testator had no transaction with the defendants. They owed him nothing, and when he died they were not indebted to his estate. They could not become indebted to it after his death. -They might become indebted, however, to its executors or trustees as its legal representatives. The estate could not lend money on notes or such like securities, and, if the executors did, they did so on their own account, and at their own risk. The note in suit must, in view of all the facts, be regarded as one payable to a “fictitious,” for it is not payable to a “real,” person. As was said in Lyon v. Marshall, 11 Barb. 248, “it certainly is not a promise to pay the testator, for he is described as deceased.” It was not an agreement with the estate, for it could make no such contract. It was not a promise to the executors, because they are not named therein. The words “estate of Wm. H. Beach,” as payee of the note, do not represent either an individual or a corporation, or any legal entity whatever. The defendant, Parker, drew the note, and signed it for the paper company, and indorsed it knowing these facts; so that as to the company, as well as to himself, it was under the statute a note payable to a fictitious person, and by force of the statute payable to bearer. This construction accords with the rule laid down in Lyon v. Marshall, supra; Bowles v. Lambert, 54 Ill. 239; and Tittle v. Thomas, 30 Miss. 122. The maker, by negotiating the note, transferred title to it without indorsement, (Plets v. Johnson, 3 Hill, 112; Maniort v. Roberts, 4 E. D. Smith, 83; Willets v. Bank, 2 Duer, 121; Bank v. Lang, 1 Bosw. 202;) and the note presumably came into the possession of the plaintiffs in the condition they presented it at the trial, with the names of all the indorsers on, and they were prima faeie, at least, holders for value. The construction we have- put upon the note, under the statute cited, frees the matter from the application of the doctrine laid down in Moore v. Cross, 19 N. Y. 227, and kindred cases, and leaves them entirely inapplicable to the issue involved. These views render it unnecessary to consider the admissibility of the declarations of Scott as a co-executor,' and bring the contention down to the single question whether there was sufficient to go to the jury. The admission made by Parker to the witness Hall was one against his interest, and in 755 it he substantially acknowledged the debt, saying, as soon as he got around, he would pay it. The case ought to have gone to the jury, and the refusal to submit it was error. For these reasons, the judgment must be reversed, and a new trial ordered, with costs to abide the-event.