
    George C. De Lacy and Elizabeth M. Shields, as Executors under the Last Will and Testament of Frank Crawford, Deceased, Respondents, v. William K. Gilchrist, as Assignee for the Benefit of Creditors of Frank Crawford, Inc., Appellant.
    (Supreme Court, Appellate Term, First Department,
    February, 1915.)
    Evidence — parol, when admissible — admissions by executors while not acting cannot bind estate — what necessary to show title to certificate of membership in mercantile exchange.
    Parol evidence is admissible to show that the title to a .certificate of membership in a mercantile exchange passed under a bill of sale from- the holder of “ all of my stock of merchandise, secret processes, trade-marks, copyrights, office furniture, fixtures, machinery and any and all other things used by me in connection with the business.”
    Executors by admissions made while not acting in the discharge of duties cannot bind the estate, but both their admissions and acts on behalf of the estate made in the discharge of their duty as executors are prima facie binding on the estate.
    Appeal by the defendant from a judgment of the Municipal Court of the city of New York, borough of Manhattan, seventh district, in favor of plaintiffs.
    William D. McNulty, for appellant.
    Harry C. Kayser, for respondents.
   Guy, J.

The action was brought to replevin a certificate of membership of the New York Mercantile Exchange that stood in the name of plaintiffs’ testator, Frank Crawford. »

The defense was that the certificate actually belonged to and therefore passed under an assignment made by the insolvent corporation, Frank Crawford, Inc., to defendant, for the benefit of its creditors.

On April 20,1912, decedent executed a bill of sale to the corporation, whereby he transferred to it “ all of my stock of merchandise, secret processes, trademarks, copyrights, office furniture, fixtures, machinery and any and all other things used by me in connection with the business heretofore conducted by me at 15 Harrison Street.” The trial judge decided the case in favor of the plaintiffs, holding that, under the terms of the bill of sale, the legal title to the certificate remained in Crawford; also that the testimony given by his executrix tending to show a latent ambiguity and that the certificate belonged to the business, and not to Crawford’s estate, was either incompetent or insufficient. It was proven, among other things, that after Crawford’s death, the business (now insolvent) paid the dues on the certificate. Plaintiff Shields. Crawford’s executrix, also an officer of the Crawford Company and a partner of Crawford in his lifetime, testified that nearly all the people, whether individuals or officers of corporations, engaged as was Crawford and his company in the butter and eggs business, were members of the Mercantile Exchange; that in the transfer tax proceedings in Crawford’s estate she had, as executrix, testified that she did not include the certificate in his assets, because it belonged to the corporation,^ that the inventory of Crawford’s estate omitted the certificate as an asset of Crawford, because she regarded it as an asset of the corporation. The certificate was found in the corporate safe, where Crawford also kept his personal papers. It was turned over to the assignee of the corporation, who, supported by the executrix’s affidavit, included the certificate in the probable corporate assets.

There is latent ambiguity in the bill of sale, which parol evidence was competent to explain. Emmett v. Penoyer, 151 N. Y. 564, 567, 568.

Admissions of executors as such in the course of their duty are only prima facie evidence and only presumptively bind the estate. When made while the executors are not acting in the discharge of their duties, they do not and cannot bind the estate. Yet, when executors, in the discharge of their functions, both make admissions and act on behalf of the estate, as did Miss Shields, their admissions and acts áre prima facie binding on the estate. Whiton v. Snyder, 88 N. Y. 300, 307; Scully v. McGrath, 201 id. 61, 64-6; Breese v. Graves, 67 App. Div. 322, 328, 329.

Bijtjr and Gavegau, JJ., concur.

Judgment reversed with costs, and complaint dismissed with costs.  