Ware v. Merchants' National Bank

Deyens, J. The instrument of October 3, 1871, signed by the claimant’s testator, Charles F. Barker, which requested the plaintiff to obtain all the money he could on the forty shares of Merchants’ Bank stock belonging to the testator, and to pay his notes to the Freeman’s Bank, and authorized the plaintiff to apply any and all balance towards the payment of the indebtedness of the testator to the plaintiff, was not an assignment of the shares to the plaintiff, but an authority to sell the same and to use the proceeds in the manner recited. Even if the paper be construed as conferring the authority also to collect and dispose of the dividends already due and unpaid thereon, as it was 447 construed to be by tbe presiding judge, it was no more than this. It could not operate to transfer the property in the dividends to the plaintiff, and make them his while yet uncollected. Assuming, without finding it necessary to decide, that it was correctly held that an authority to collect these dividends was granted, yet the plaintiff was only so authorized in order that he might apply them to some existing indebtedness to himself, that to the Freeman’s Bank having been liquidated. If now entitled to receive them, it is because the estate of the claimant’s testator is still his debtor. After the application of the balance of the money obtained by sale of the stock to the plaintiff’s debt, and after the decease of the testator, the plaintiff contended that there was still the amount of six hundred dollars due to him from the estate, while the claimant, the executor, denied that anything whatever was due. A settlement and compromise of all existing claims and liabilities was made between them on January 31, 1885, by which the executor paid to the plaintiff the sum of two hundred dollars, and received from him, personally and as executor of Charles F. Barker, a release and discharge under seal “ from all claims and demands.” It was ruled, as matter of law, that by this settlement and discharge “ the debt to which such dividends might have been applied was extinguished, and the dividends released, and that therefore the plaintiff could not recover.” This ruling is correct. The payment of money by an executor from the funds of an estate in settlement and compromise of unliquidated and disputed claims against it, and the acceptance thereof as such, would operate to extinguish them, even if there had been no formal release under seal. The release and discharge of all claims and demands against the executor was a release and discharge of the estate. Neither the plaintiff nor the executor in fact knew of these dividends. Even if it be true, as the plaintiff contends, that the dividends, had the plaintiff known of their existence, might-rightfully have been applied to the payment of his debt, he had not so applied them. They were still, as we construe the paper of October 8, 1871, the property of the estate, and when the debt was extinguished the plaintiff had no further interest in them. Exceptions overruled.