
    Nathan J. Packard, Appellant, v. Anna Dunfee and John J. Cummins, as Executors, etc., of John Dunfee, Deceased, Respondents.
    Fourth Department,
    May 1, 1907.
    Executors:—bills and notes—when holder of note assigned by executor cannot recover on testator’s indorsement.
    An executor has no power to bind the estate by making a contract of indorse-' ment, much less so before actual probate of the will.
    When the payee of a promissory note secured by a chattel mortgage has indorsed the same to á bank for collection, his executor by buying the note from the bank after maturity and dishonor-and assigning it together with the mortgage to another creditor of the maker, who buys it for the sole purpose of protecting a second mortgage on the samé chattels, does not bind the estate on the indorsement.
    Appeal by the plaintiff, Mathan J. Packard, from a judgment of the County Court of Onondaga county in favor of the defendants, entered in the office of the clerk of said county on the 12th day of July, 1906, reversing a judgment, of the Municipal Court of the . city of Syracuse. ■
    
      .Samuel Packard and Solomon Ferguson¿ for; the .appellant.
    
      John W. Hogan, for the respondents.
   Spring, J.:

On the l'3t'h of October, 1904, Myron Blackman executed and delivered his promissory note for $350, due in -three months with use to the order of John- Dunfee, payable at the State Bank of Syracuse. As collateral security for the payment of said note Blackman executed and delivered to Dunfee a .chattel mortgage on . an automobile. Dunfee indorsed said note- and negotiated it with the State Bank, but did not. assign or deliver over the chattel mortgage to the bank.

Before the maturity of the note and on the 24th of December 1904, Dunfee died, leaving a last will and testament in which he nominated the defendants éxecntors, and which was admitted to .probkte on the nineteenth of January, and letters testanientary issued. On the thirteenth of January the nóte was duly protested for non-payment to bind.the Dunfee estate on the indorsement of the testator. The plaintiff, a note broker, was a creditor of Black-man and. had been interested with him in business. On the-sixteenth of January Mr. ítosenbloom, the attorney for the plaintiff and on his behalf, paid Cummins, the executor named in the will, the amount unpaid on the note, at the same' time, receiving from him an assignment under seal of the note and chattel mortgage containing a certificate of the amount' due thereon and which was executed by Cummins “as executor of the estate of John -Dunfee, deceased.”

Tlie plaintiff evidently believed that the note belonged to the estate of John Dunfee, but . in fact the note, as already indicated, ' was owned by the bank. , Cummins delivered the assignment to ítosenbloom for the. plaintiff and agreed to get the note and mail it 'to'him, which he did later in the day. Cummins did not usé the check he received from the plaintiff to take - up the note. ' He gave .his personal check instead, testifying,, however, that it was paid by the money belonging to the Dunfee estate and some other money.” The note was not canceled by the bank, and when delivered to the plaintiff by Cummins it bore the indorsement of John Dunfee.

Blackman was irresponsible, and the collateral security turned . out to be worthless, and the plaintiff has sued the executors, alleging that their liability existed by reason of the indorsement of Dunfee upon the note. The plaintiff, in order to secure another indebtedness to him from Blackman, took a chattel mortgage covering the automobile described in the Dunfee mortgage, with other property. This was done on January sixteenth, the same day of the transaction with Cummins, the defendant. The evidence shows that Packard' occasionally loaned money to Blackman at usurious rates of interest, accepting securities which were somewhat precarious. In this condition of affairs he directed Bosenbloom to get. the note against Blackman which had been given to Dunfee. He supposed the note belonged to the Dunfee estate. He could not, therefore, have been expecting that it would be indorsed by John Dunfee, then deceased. The indorsement would be made only in the event of the negotiations of the note by him. . The plaintiff intended to get the Blackman note and the chattel mortgage security, and he then, upon taking the second mortgage, would have entire control of the mortgaged property. On the other hand, if he took the second mortgage with the ■ first mortgage belonging to the Dunfee executors as security for an overdue note, which, in the administration of the estate would be likely to be speedily collected, his own security would be very hazardous.

The executors, even if vested with full authority by the probate of the will and the issuance of letters testamentary, had no power to bind the estate by making the contract of indorsement. ■ (Schmittler v. Simon, 101 N. Y. 554.)

In the conversation with Bosenbloom the fact that the note was owned by the bank was not disclosed. He accepted the assignment of the mortgage and arranged for the mailing of the note to him — all in the belief that the note belonged to the Dunfee estate, and, consequently, there was no expectation on his part that the note would bear the indorsement of D.unfee. The executor would have transcended his authority by making a contract of that nature enforcible against the representatives of the. estate. So far as the plaintiff is concerned, if he received the note without the indorsement of Dunfee he obtained precisely what he intended. The transfer of the noté which is contained in the 'written assignment passed the interest of the Dunfee estate in • the note without indorsement.

Now the note was owned by the bank. Cummins did not indorse and deliver the Packard check to the bank and direct it to send the note to the plaintiff. He gave his own check to the bank, as he testified, paying it out of moneys, in part at least, of the Dunfee estate. The bank returned the note to Cummins as' the representative of tlie Dunfee estate uncanceled. That was the natural thing to do — when a note is paid at a bank by .the accommodation indorser. He ordinarily holds it as a live obligation against the maker. The Dun-fee estate thereupon became revested with the possession and title of the note. The contract of indorsement was then terminated. Cummins was assuming to act for the Dunfee estate and it was essential for him to get the note back in the estate in order that lie might, carry out his agreement with Packard. Perhaps a proper precaution ought to have suggested to Cummins to erase the signature of Dunfee on the back of the note, or to add to it “without recourse,” or an equivalent expression, denoting there was no liability-on the part of the indorser. The iibte was, however, overdue; there was no certificate of protest attached, and there had.been ■no intimation by. Rosenbloom that Packard expected to hold. the executors of Dunfee o'n thenote. On the contrary, as already noted, Packard apparently had no such intention.

We are not impressed by the discussion of the question of (agency. The transaction speaks for itself. There is no dispute over the facts which we deem controlling. The plaintiff accepted the note and mortgage without any anticipation of holding the defendant on the indorsement of Dunfee,' and- Cummins’ understanding agreed exactly with that of the plaintiff. With that fundamental proposition obvious in the case there ought not to be much difficulty in making the understanding effective.

The fact that the will had not been admitted to probate, and consequently that Cummins had no authority to make the transfer as executor (Code Civ. Proc, ,§ 2613) is unimportant.' The defendants are not repudiating the validity of the assignment of the note or chattel mortgage. In order to do that they would first be called upon to tender back the money which the plaintiff paid for the note and mortgage. They are ratifying the transaction of Cummins, only they are resisting liability on the indorsement contract made for a specific- purpose which had been accomplished.

The transfer of. the note was tantamount to a return of it to the maker by the accommodation indorser, and in no sense was in excess of the authority possessed by Cummins. He could not make a new contract of indorsement founded on the signature of Dunfee, and the parties did not contemplate any such thing..

The-judgment.of the County Court reversing the judgment of the Municipal Court should be affirmed, with costs.'

All concurred.

■ Judgment affirmed, with costs.  