
    Riggin et al. v. Creath.
    
      Surety's liability — Distributee accepts individual check of executor for share of land — Upon dishonor of check cannot look to sureties of executor.
    
    A distribute* having, pursuant to a private arrangement with one of two joint executors, accepted his individual check for the amount of her distributive share, and in consideration thereof assented to the delivery of her share of the fund to such executor and executed her receipt in full to the executors on account of such share, can not, upon the dishonor of the check, maintain an action against the executors and the sureties upon their joint bond, the act of the executor in drawing his individual check being apart from his duties in the execution of the trust.
    (Decided March 28, 1899.)
    Error to the Circuit Court of Pickaway county.
    Mary E. Creath brought her action against Cork-well and Riggin as executors of the will of John McCafferty, deceased, and the sureties upon their joint bond to recover the sum of $1,006.73, the balance of her share of the sum which the probate court had found due in the hands of the said executors for distribution. The questions to be considered here arise upon the third defense in the answer of Corkwell and the evidence relating to issues joined on that defense. That defense is as follows:
    Third Defense — Por his third defense, this answering defendant, George W. Corkwell, says,that prior to said April 4, 1895, said executors had collected the assets of said estate, and deposited the same in the Citizens’ Bank of Mt. Sterling, Ohio, to their credit as such executors, and that the same were on deposit on April 4, 1895, and so remained until paid out in the settlement of said estate, and the payment of the sum hereinafter referred to, as paid to George V. Riggin individually, and that the sum so on deposit on April 4, 1895, was sufficient to pay the entire balance remaining due upon all of the distributive shares of said estate, of all of which facts plaintiff had full knowledge.
    This defendant further avers that prior to said April 4, 1895, said George V. Riggin had individually made divers and sundry loans or advancements to said plaintiff upon her distributive share, of said estate, the exact amount of which loans or advancements were at the time and still are, unknown to this answering defendant, George W. Corkwell.
    That on said April 4, 1895, said executors and part of the legatees of said estate, including plaintiff, met in the probate court of Pickaway county, Ohio, for the purpose of settling said estate, and determining the amountsof the several distributive shares of each of said legatees, and paying the same in full, of all of which plaintiff had full knowledge. That at the said time and place said George V. Riggin and plaintiff represented to this answering defendant, George W. Corkwell, that he, George V. Riggin, who is a brother-in-law of plaintiff, had an accounting to make with plaintiff of his said loans and advancements to her; and thereupon said George V. Riggin and plaintiff retired privately and apart from this answering defendant, George W. Corkwell, and made a settlement of their said accounts, and plaintiff, with a full knowledge of all of the facts aforesaid, signed for and gave to said George V. Riggin, individually, a receipt in full to said executors for her distributive share in said estate; and said George V. Riggin, individually, with the knowledge and consent of' said plaintiff, presented said receipt to this answering defendant, as such executor, and represented to this answering defendant, George W. Corkwell, that he, George V. Riggin, individually, had paid to plaintiff the full amount of her distributive share in said estate, and that the same was, therefore, due and payable to him, said George V. Riggin, individually.
    Whereupon, and in reliance upon the conduct and representations of the plaintiff, and this answering defendant, George W. Corkwell, believing that plaintiff had been paid her share of said estate in full, said executors executed and delivered to said George V. Riggin, individually, their check upon said funds of said estate so deposited in said Citizens’ Bank of Mt. Sterling, Ohio, as aforesaid, for the sum of $1,768.86, and which said check was on April 5,1895, duly presented by and paid to said Riggin individually, whereby the said sum of $1,768.86, became and was, and is wholly lost to and placed beyond the control of said executors, and this answering defendant, George W. Cork-well.
    This defendant further says that prior to said April 4, 1895, plaintiff borrowed a large sum of money from one A. R. Alkire, who was at that time and still is the president of the said Citizens’ Bank, upon the promise of repaying the same out of her distributive, share in said estate, and that both plaintiff and said Alkire knew that the funds of said estate were deposited in said Citizens’Bank of which said Alkire was president.
    And at the time of said accounting between plaintiff and said Rig’gin, said Riggin, as this plaintiff is since informed and believes, paid to plaintiff a part of tbe sum so found due ber on said accounting, in currency, but the exact amount of which payment in currency this defendant is unable to state, and for the balance so found due her upon said accounting said Riggin thereupon gave her his individual check upon the Farmers’ Bank of Mt. Sterling, Ohio, for the sum of $1,006.73, which sum of money in currency and said check she then accepted in full satisfaction of her said distributive share in said estate; and thereupon, and with a full knowledge of all the facts aforesaid, executed and delivered to said executors her receipt for said sum of $1,955.23, in full of her distributive share of said estate, and the same was thereupon, with her full knowledge and consent, filed and recorded by the probate court in full satisfaction of her distributive share of said estate; and the plaintiff thereupon authorized said executors to draw their check as 'aforesaid, in favor of said Riggin, individually, for said sum of $1,768.86, which amount included the said sum of $1,006.23 now claimed by plaintiff in her petition.
    (That one of the purposes and objects of plaintiff in settling with said Riggin and agreeing with him to accept his check upon said Farmers’ Bank, and so authorizing said Riggin, individually, to draw and receive from said executors the said money so deposited by them in said Citizens’Bank was to avoid the payment of said moneys so due and owing by her to said Alkire as aforesaid. This defendant further says that plaintiff failed and neglected to present to said Farmers’ Bank, for payment, her said check for $1,006.73, so given her by said Riggin, until April 13, 1895. That for a long time prior to, and on said April 4, 1895, and until April 15, 1895, said Riggin had a large amount of property subject to attachment or execution, and that on April 15, 1895, and before this defendant, George W. Corkwell, had any knowledge or intimation that plaintiff had not received all the money or property which she claimed from said estate, said Riggin’s property was seized on execution and upon attachments, upon valid claims for much more than its value, and said Riggin became and is now wholly insolvent, so that, if this answering defendant, Geo. W. Corkwell, as such executor, is now compelled to again pay the claim of plaintiff, that the same will be wholly lost to him.)
    In the court of common pleas the portions of this defense which related to the plaintiff’s motive in entering into the arrangement with Riggin were stricken out on motion of the plaintiff. She then demurred to the third defense, and her demurrer was overruled. She then replied denying that she had ever represented to Corkwell that Riggin had paid to her the full amount of her distributive share of the estate, and alleging that although she had received advances which reduced the amount due upon her distributive share to the sum named in her petition, the executors had united in the representation that Riggin had funds to his credit in the Farmers’ Bank of Mt. Sterling sufficient to meet his check for that amount and that they induced her to accept his individual check upon that bank for the sum named, and in consideration thereof to execute to the executors her receipt for the full amount of her distributive share, and that Riggin did not then nor at any time prior to the presentation of the check by her have any funds on deposit in the Farmers’ Bank, and that the cheek remains unpaid. The cause coming on for trial in the court of common pleas a jury was waived and there was a general finding and judgment in favor of the defendants. Thereupon the plaintiff, her motion >for a new trial having been overruled, took a bill of exceptions containing all the evidence offered, and filed her petition in error in the circuit court where the judgment of the common pleas was reversed for two reasons as shown by the record; first, because the common pleas had erred in overruling plaintiff’s demurrer to the third defense; second, because the judgment was not sustained by the evidence. This petition in error is for the reversal of the judgment of the circuit court.
    
      (Maries JDresbach and Abernethy c& Folsom, for plaintiff in error.
    
      Clarence Curtain and J. W. Harsha, for defendant in error.
   Shauck, J.

However variously it may be stated, the only proposition submitted by counsel for the defendant in error in support of the ruling of the circuit court on the demurrer to the third defense is that Riggin and Corkwell were joint executors and had given a joint bond for the faithful performance of their duties, and that, therefore, each was surety for the other with respect to all things done in the execution of the trust. Conceding the soundness of this proposition, it can have no application to the defense interposed by Corkwell. That defense is, in substance, that Mrs. Creath waived the payment in money of the balance due upon her distributive share after deducting the advancements which had been made to her by her brother-in-law, Riggin, and also waived the delivery to her of a check drawn by the executors upon the Citizens’ Bank where, as she knew, they had on deposit a sum sufficient to meet the check. In lieu of payment in cash or by the check of the executors upon the trust fund, she voluntarily and for purposes of her own accepted the individual check of Riggin upon a different bank for the balance, and in consideration of that check and the advancements previously made to her, she executed to the executors, for the purpose of their settlement, her receipt for the entire dis- . tributive share, from which it resulted that by her authority the portion of the trust fund which she had been entitled to' receive was delivered to Riggin and lost to the fund. In executing to her his individual check upon the Farmers’ Bank, Riggin' acted wholly apart from his duties as executor. He did not execute it as executor, nor in any way represent that it would be paid out of money subject to control of the executors. It follows that whatever may have been Mrs. Creath’s reason for preferring the individual check of Riggin to that of the executors, she was the sole judge of its sufficiency, and she is'bound by her election, and estopped to maintain an action on the bond because of the non-payment of the check which she chose to receive. The common pleas properly overruled the demurrer.

Upon the trial of the case the material allegations of the third defense were fully sustained by the testimony of Riggin and Corkwell, corroborated by that of the probate judge and the counsel who were present assisting in the settlement. In her testimony offered in her own behalf Mrs. Creath admitted that she. had the settlement with Riggin in a room connected with the office of the probate judge, that she there received Riggin’s individual check for the balance ascertained to be due her, that they then returned to the room where Corkwell and the counsel for the executors and the probate judge were, that she then signed a receipt 'in full of her distributive share, that Corkwell did not participate in any representation by which she was induced to accept the check of Riggin in lieu of that of the executors, and that he had no knowledge of their arrangement, except that communicated by Riggin in her presence just before she signed the receipt, that he had satisfied her demand. According to what seems the proper view of the legal effect of this evidence we must infer that the circuit court, when considering its weight and effect, was governed by the same view of the law which led it to the conclusion that the demurrer to the third defense should have been sustained; that is, that it thought the evidence insufficient to support a judgment against Mrs. Creath even though it fully supported the allegations of the third defense and refuted those of the reply. Upon the material questions of fact there was no conflict in the evidence, and the judgment of the court of common pleas holding the plaintiff bound by the arrangement into which she voluntarily entered with Riggin, accepting his individual obligation in lieu of the check of the executors, was right.

Judgment of the circuit court reversed and that of the common pleas affirmed.  