Massachusetts Bank v. Oliver

Metcalf, J. When the indorser of a note dies before its maturity, it is necessary, in order to charge his estate, that notice of non-payment should be given to his executor or administrator, if there be any known to the holder, or who might be known to him, on his using due diligence to ascertain. Oriental Bank v. Blake, 22 Pick. 206; Merchants’ Bank v. Birch, 17 Johns. 25; Cayuga County Bank v. Bennett, 5 Hill, 236. And when the holder and the executor or administrator live in different towns, a notice, properly directed to the latter, and put into the post-office, is sufficient. Shed v. Brett, 1 Pick. 401. The notice, in this case, was directed “to the Estate of Henry J. Oliver, deceased,” and was put into the post-office at Boston. It is insisted for the plaintiffs, that this was sufficient. And their counsel has cited a decision of the Supreme Court of Tennessee, Pillow v. Hardeman, 3 Humph. [561] 538, that notice, directed “ to the legal representative ” of a deceased indorser, is a good notice. The ground of that decision was, that the words “ legal representative,” in their ordinary sense, are synonymous with executor or administrator. A fortiori, notice directed “ to the executor or administrator,” without naming him, would have been held sufficient. But either of such notices would be directed to an existing person, though not by name, yet by clear description; and that person would know that it was addressed to him, as well as he would know it if his name were used. In the present case, the notice was directed, not to any person, either by name or description, but “ to the estate ” of the defendant’s testator. This direction was quite as applicable to the testator’s heirs at law as to his executrix; and there is no reason why she, rather than they, should take it from the post-office, or be presumed to have received it. Whether this notice would be held sufficient, if it had appeared that the defendant received it, we need not inquire. For the statement of the postmaster at Roxbury does not warrant us to infer, with any confidence, that she did receive it, and thereupon to charge her with actual notice. But as the law does not require that the holder of an indorsed note should have knowledge beyond his means of obtaining it, he is excused from giving notice to the executor or administrator of the indorser, when he neither knows, nor can, by reasonable diligence know, whether there is one, or who he is, or where he resides. The use of due diligence to ascertain is all that is required. Was such diligence used in this case ? We are all of opinion that it was not. The indorser died more than seven weeks before the note was payable. The president of the bank had information, a week at least before the note was payable, that the defendant was the executrix named in the indorser’s will. The plaintiffs took the newspaper in which the defendant had given notice, three days before the note fell due, that she had been appointed executrix of the will, and had taken upon herself that trust. And though it is agreed by the parties that the president of the bank had no knowledge, before the day when the note [562] was payable, of the defendant’s appointment as executrix, by the judge of probate; and though we were to assume, (without proof,) that no other of the officers of the bank, before that day, saw the defendant’s notice in the newspaper, nor actually knew who the executrix was; yet the facts, which the parties have agreed on, show that certain knowledge might have been obtained in a very few minutes, if any proper inquiry had been made by any of those officers, or by the notary into whose hands the note was put for protest and notice. Judgment for the defendant.