
    Claiborne Steele et al., Administrators of George J. Rapalje vs. James R. McDowell et al.
    An executor may be sued as such on a promise made by him as executor; and a count against him on such promise may be joined with a count against him as executor, on promises made by the testator.
    Whenever an estate is liable, even though it be for dealings of the administrator or executor subsequent to the testator’s or intestate’s death, the action therefor may be brought against the executor or administrator in his representative character.
    An action against an executor upon a promise made by him as such, when the debt is created after the testator’s death, can only be maintained when it affirmatively appears that there was a clear and just liability on the part of the estate.
    If an executor or administrator accept a bill of exchange as such for contracts made by him after the testator’s or intestate’s death, it may still be shown that the contracts for which the bill was given, were not just liabilities against the estate.
    In an action, therefore, against an administrator for articles procured by him since the death of the intestate, it was held erroneous not to permit a witness to answer the question, whether the articles were furnished for the benefit of the estate or the individual use of the administrators.
    In an action against an administrator .as such, for goods brought by him since his intestate’s death, it was held erroneous to charge the jury, that it made no difference só far as the plaintiff’s right of recovery was concerned, whether the goods were purchased for the benefit of the estate, or for the, administrator’s individual use.'
    In error from the circuit court of Warren county ; Hon. George Goalter, judge.
    This was an action of assumpsit brought to the April term, 1844, of the circuit court of Warren county, by James R. McDowell, James R. Harris and Richard J. Lyons, partners in trade under the name and firm of McDowell, Harris & Co., for the use of Christopher Wolfe, against Claiborne Steele, James Allen and Frances M. Allen his wife, as administrators of the estate of George J. Rapalje, deceased. The declaration contained three counts; the first was a common money count, laying the promise in the lifetime of Rapalje; the second count was like the first, except that the promise was alleged to have been made by the administrators after the death of Rapalje; and the third was an account stated by the administrators after their intestate’s death. At the return term, the defendants pleaded the general issue. On the trial, the plaintiffs introduced Claiborne Steele, one of the defendants, to testify in relation to the several bills of particulars, marked A, B and C, filed with the plaintiffs’ declaration; A being an account against the estate of George J. Rapalje, showing a balance on the 26th day of November, 1840, against the estate of $1660 17; B, a bill of exchange drawn by the plaintiffs in favor of Wolfe & Clarks, and directed to “ Claiborne Steele, administrator of the estate of G. J. Rapalje,” and by him accepted for $1660 17, dated 26th February, 1840, and payable nine months after date at the Merchants Bank of New Orleans; and C, an account against G. J. Rapalje, showing the same balance as the account marked A. Whereupon, the defendants’ counsel objected to any proof •respecting said accounts and bill of exchange as evidence, because the bill of exchange was given in satisfaction of the accounts, and should therefore have been the foundation of the action, and consequently no evidence of the accounts could be received; and the bill of exchange could not be given in evidence because it was not declared on, which objection being overruled by the court, the witness testified that the account marked A, exhibited correctly the balance against said estate in favor of the plaintiffs; that the items of $1500, mentioned in the accounts A and C, were for a draft drawn by George J. Rapalje, in his lifetime ; the draft was shown to him after its maturity by James R. McDowell, and he recognized the signature as that of Rapalje, with which he was well acquainted, and that McDowell stated to him it had been taken up by McDowell, Harris & Go.; that this draft and the small balance due as set forth in account G, were the only items contracted by Rapalje in his lifetime. The various items of the account A, except the $1500, were furnished either upon his, or Mrs. Rapalje’s, or their joint order; that after Rapalje’s death, which occurred in June 1839, Mrs. Rapalje and himself, as administrator and administratrix of George J. Rapalje, carried on the plantation owned by Rapalje in his lifetime, until the marriage of Mrs. Rapalje with the defendant, Allen, when he abandoned the estate to Allen ; that during the time they were carrying on the plantation, they opened an ordinary commission merchant’s account with the plaintiffs, bought articles of and drew money from them, and shipped cotton belonging to Rapalje’s estate, raised after Rapalje’s death, to the plaintiffs in payment; that when they shipped the cotton and made the payments on the account A, neither he nor Mrs. Rapalje specified to what items or in what mode they should be appropriated, the whole of the account A was contracted before the intermarriage of Mrs. Rapalje with the defendant Allen, and that he and Mrs. Rapalje had never made any settlement with the probate court. The witness further testified, the said bill of exchange was drawn at the instance and for the accommodation of McDowell, Harris &. Co., and to enable them to raisé money upon it; that he did not intend by said bill of exchange to bind himself personally, nor to release said estate, but he intended to bind the estate of Rapalje; that he was then personally insolvent, and his acceptance would not at that time have been taken by the plaintiffs for the debt. Nothing was said at the time of drawing the bill, or at any other time about the application of it to any particular item of the account A. The defendants’ counsel then asked the witness if some of the items charged in the account A were not furnished and applied to the individual use of either the defendant, Steele, or Mrs. Rapalje, and if the same were necessary to the administration of said estate; which question being objected to by the plaintiffs, the court refused to permit the witness to answer. The defendants then offered to prove by the witness, that Mrs. Allen, one of the defendants, owned the plantation on which the cotton crop shipped to McDowell, Harris & Co., grew, and that she, -then Mrs. Ra-palje, drew her subsistence, and paid her expenditures and those of her family out of the proceeds of said cotton, which being objected to, the court refused to permit; and the defendants excepted to the opinion of the court refusing to permit the evidence offered to be made. The plaintiffs then called James H. Campbell, who testified that he was the clerk of McDowell, Harris & Co. during the year 1839, and the draft of $1500 named in the accounts A and C was drawn by George J. Rapalje, in May, 1839, upon and accepted by the plaintiffs for his accommodation ; that Rapalje died before its maturity, and never furnished any funds to pay it with, and the plaintiffs were compelled to take it up; that the items in the account marked A, were furnished to the defendants or their order, and that Mrs. Allen lived in her own house near Vicksburg, and not on the plantation, which was all the evidence before the jury. The defendants thereupon asked the court to instruct the jury as follows, to wit: “ 1st. Unless the jury are satisfied by the testimony that the items charged in said accounts were necessary and proper to the administration of said estate, and purchased for that purpose, they must find for the defendants.” “2d. That in the absence of any instructions as to the application of funds belonging to the estate of Rapalje, when paid by the defendants to plaintiffs, as credited on said account, it was the duty of plaintiffs to apply the same, first to the payment of debts contracted by said Rapalje during his lifetime, and debts contracted by his administrators after his death necessarily, and for the use of said estate, and for the proper administration thereof.” Both of which instructions the court refused to give, but at the request of the plaintiffs instructed the jury, “1st. That so far as the plaintiffs in this action are concerned, it makes no difference whether the goods procured and the money drawn from the plaintiffs, were purchased by the defendants for the benefit of the estate or for their individual use.” “ 2d. That in the absence of any express direction or appropriation by the defendants, Steele and Mrs. Allen, of the cotton and credits paid by them to McDowell, Harris & Co., McDowell, Harris & Co. had a right to appropriate the payments first to the items of account A, contracted with them by the administrators since the death of Rapalje; ” and the defendants excepted, and filed their bill of exceptions. The jury found for the plaintiffs, and the defendants have brought the case to this court by writ of error.
    
      Guión and Chilton and Tompkins, for plaintiffs in error,
    contended,
    1st. The court below erred in permitting testimony of liabilities tp the plaintiffs, incurred by the defendants in their individual capacity after the death of their intestate, to be given to the jury for the purpose of charging the estate of their intestate in their hands.
    2d. In permitting the bill of exchange drawn by McDowell & Harris on C. Steele, and accepted by him, to be read to the jury as evidence.
    3d. In refusing to admit proof on the part of the defendants, that items charged in the account of plaintiffs were not for the use and benefit of the estate of Rapalje, but were for the use of the defendants individually.
    4th. In refusing to give to the jury the instructions asked for by the defendants.
    5th. In giving to the jury the instructions asked for by the plaintiffs.
    
      Smedes and Marshall, for defendants in error.
    1. There was no agreement that the bill of exchange should be taken in payment of the pie existing debt. It did not, therefore, extinguish the account. In the absence of any agreement between the parties, the law says a note or bill given for a preexisting debt shall be considered as a conditional payment only — that is, if the note or bill be paid, it will be an extinguishment of the preexisting debt, otherwise the debt will revive and the creditor may sue at his election, either on the original debt, or the note or bill. See Bayley on Bills, ch. ix., p. 363-369, 5th edit.; 6 Term R. 52; 7 Ibid. 64; 3 Taunt. R. 130; 2 John. Cas. 438; 3 Ibid. 71; 5 Term, 513; 5 Beav. R. 415; 1 John R. 34; 7 Ibid. 311 ; 8 Ibid. 389 ; 9 Ibid. 310; 10 Ibid. 104 ; 15 Ibid. 224, 247; 1 Cowen, 290; 2 N. H. 525; 9 Conn. 23; 3 Pick. 12; 18 Ibid. 253; 1 Crabch, 181; 10 Peters, 532; Story on Promissory Notes, 106, 107, 475, 476, 500 501, and authorities cited in note. We admit it has been decided in several of the American states, that, unless it is otherwise agreed, the taking of a promissory nóte is deemed prima facie an absolute payment of the preexisting debt. Yet the weight of .authority we are confident, is very clearly in our favor. In Peter v. Beverly, 10 Peters, 533, cited above, the supreme court of the United States say, “ it is a settled doctrine, that the acceptance of a negotiable note for an antecedent debt, will not extinguish the debt, unless it is expressly agreed that it is received as payment.” See Story on Promissory Notes, 107; 4 Mason, 336; 6 Mass. 143 ; 8 Pick. 522.
    2. We think the court right in refusing to permit the witness, Steele, to answer the question, “if some of the items charged in the account A, were not furnished and applied to the individual use of either the defendant Steele, or Mrs. Rapalje, and if the same were necessary to the administration of the estate of Rapalje.” McDowell, Harris & Co. were the commission merchants of Steele and Mrs. Rapalje, having in their hands funds belonging to Steele and Mrs. Rapalje, and they had no right in law or justice to refuse to pay any order drawn on those funds, no matter for what purpose drawn. If McDowell, Harris & Co. had been sued for the funds in their hands, would a plea that the administrators wanted the money for their individual use, have been a good answer to the declaration ? And yet it certainly would if they could have refused to pay over the money when called on so to do.
    3. The first instruction given by the court involves the same question just discussed, and we do not deem it necessary to say anything further on that subject; except to remark, that no proof was given or offered that McDowell, Harris & Co. had any notice of, or knew to what purpose, or to whose use the money and goods were to be applied.
    4. The second instruction of the court was, we are convinced, in strict accordance with law. We do not deny that Steele and Mrs. Rapalje could have applied, if they had chosen, the proceeds of the cotton, or any payments made by them, to those items in the account contracted by Rapalje in his lifetime, or to any items they pleased. But in the absence of any such application by them, it was the unquestionable privilege of McDowell, Harris & Co. to appropriate the money in their hands to the payment of any of the items in the account they thought proper. On this subject the authorities are all one way. See 1 Mason’s R. 338; 5 Ibid. 85; 9 Cow. 420, 747 ; 8 Wend. 403; 4 Gill & John. 361; 20 Pick. 446 ; 3 Sum. 98 ; 17 Peters, 251; 9 Wheat. 720 ; 1 How. S. C. 250. If neither party make a specific appropriation, the law will apply it according to the justice and equity of the case. See Story on Contracts, 409, § 673, and the authorities last above cited.
   Mr. Justice Clayton

delivered the opinion of the court.

This was a suit in the circuit court of Warren county, brought by the defendants in error against the plaintiffs in error, as administrators of G. J. Rapalje, deceased. The action was assumpsit, brought on two open accounts, and a bill of exchange accepted by Steele as administrator. There were three counts in the declaration ; the first, upon the liability of the decedent and upon his promises; the next, upon his liability and the promise of the administrators ; the last, upon their liability and upon their promises.

The principal point presented is, as to the liability of the estate of the decedent, for the dealings and transactions of the administrators touching the estate, after his deaih. It was formerly considered, that an executor was chargeable in his own right, and not in his representative character, whenever an action was brought against him on promises laid, as made by him after the testator’s death. But it seems to be now settled, that an executor may be sued as such, on a promise made by him as executor. A familiar example is where the debt of a testator has been paid after his death, by some third person as surety. It is but just that the person making the payment, should have the right to look to the fund, which the executor holds, and to recover it under a count for money paid to the use of the defendant as executor. 2 Lomax Ex’rs. 272. In many instances, it may be to the advantage of a person to proceed against the assets, rather than against an executor personally, for he may be insolvent, and the estate good. Ibid. An executor is sometimes justified in completing a house commenced by the deceased, or in carrying on his trade for a time. He may be compelled to employ physicians or lawyers for the necessary preservation of the estate; in these instances, it is but reasonable that the creditor should be permitted to proceed against the estate at once in the hands of the executor. If the executor pay them, they will be allowed as credits to him in his account. Peter v. Beverly, 10 Peters; Jackson v. Jackson, 2 Grattan, 150.

Whenever the subject-matter of the action would, when recovered, be assets, the executor may sue in his representative character. Marshall v. Broadhurst, 1 Cr. & Jerv. 405; Cowell v. Watts, 6 East, 405. The converse of the rule, that where the estate is liable, the action may be against the executor in his representative character, seems to follow as a legitimate conclusion. The case of Sims v. Stillwell, 3 How. 181, is in accordance with this view of the subject. The promise of an executor is there said, to bind him personally, unless it clearly appear, that it was made for a debt or liability of the testator. The liability of the estate would produce the same result.

From these principles it follows, that an action against an executor upon a promise made by him as such, when the debt is created after the testator’s death, can only be maintained when it affirmatively appears, that there was a clear and just liability on the part of the estate. The giving of the bill of exchange does not vary the rule.

The instructions of the court below, and the exclusion of the testimony offered to prove that a part of the account was for the individual benefit of the administrators, being opposed to this decision, are erroneous.

The judgment will be reversed and a new trial awarded.

Mr. Chief Justice Sharkey being related to the plaintiffs in error, gave no opinion in the case.  