
    EAGLE a. FOX.
    
      Supreme Court, First District; General Term,
    November, 1858.
    Parties.—Suit by Executor or Administrator.
    An executor who for a consideration proceeding from the estate of the testator, takes a note payable to him as executor, may maintain an action thereon, in his representative capacity.
    Appeal from a judgment.
    The facts are stated in the opinion.
   By the Court.-—Ingraham, J.

The plaintiff, as executor,

sued one Wright for a claim due to the testator. When the action was proceeding to judgment, the defendant gave this note in suit, and another to the plaintiff as executor, and took from the plaintiff an assignment of a decree made by the surrogate in favor of the plaintiff as executor against Wright. The note not having been paid, the plaintiff, as executor, brings this action to recover the same.

The defence is, that the action should have been in the name of the plaintiff individually.

There is no doubt that the note was given in payment of a claim due to the testator’s estate by the defendant, and the simple question is, whether an executor who sells goods, or choses in action belonging to the estate which he represents, may collect payment therefor in his capacity of executor. Of this I think there can be no doubt. The property belongs to the estate; for the proceeds of the note the executor will be required to account, and personally he has no interest in the proceeds. He might have maintained the action in his own name, it is true; but he was not necessarily compelled to do so. On the contrary, under the present system which requires a plain statement of facts in the complaint, I think the law is better obeyed by bringing the action according to the truth, than in doing so under a legal fiction.

In Merritt a. Seaman (2 Seld., 168), the promises were averred to have been made to the plaintiff individually, and it was there held that in such a case the defendant could not set off a claim against the estate. Judge Gridley in that case says, “ The plaintiff might have sued in his representative character or individually, as he choseand Justice Gardiner in the same case says, “The note was made after the death of the plaintiff’s testator, and would maintain an action either in the name of the plaintiff as an individual or as executor.”

In the complaint, the facts are so set out as to show the consideration for the note to be a claim due to the estate, and the promise to be made to the executor. The case of Blanchard a. Strait (8 How. Pr., R., 83), only shows that where a plaintiff in his summons described himself to he suing in a representative capacity, he cannot complain for a cause of action due to him individually; and in McMahon a. Allen (12 How. Pr. R., 46), the reverse of the proposition was held, that a plaintiff who commenced his action as an individual, could not afterwards change it into one for a claim held by him in a representative character.

Both of these cases are rather in the plaintiff’s favor than the defendants.

The judgment should be affirmed. 
      
       Present, Davies, P. J., Clerke and Ingraham, JJ.
     