
    The State, on the relation of Campbell and Others, v. Overturf.
    
      Wednesday, June 5.
    Suit upon an executor’s bond; averring for breach that the executor did not perform the conditions of his bond, in this : that without authority so to do, he loaned the moneys of his intestate to one A., taking her note therefor; that afterward he procured one B. to sign said note as surety, for the purpose of enabling him to settle the estate, and with the agreement that when the estate was settled B. should be released as surety, and the executor become surety thereon in his stead; that concealing the circumstances under which B. had been induced to execute the note as surety, and the insolvency of A., the executor had procured the Probate Court to accept the note as money, in the final settlement of the estate, and afterward refused to become surety on said note; that in a suit on the note, B. was discharged on account of the circumstances under which his signature was procured, and the said A. was insolvent. Prayer that the settlement be set aside, &c.
    
      Held, that the circumstances under which B.’s signature to the note was procured did not invalidate the note as to himas the parol agreement made by the executor could not be given in evidence to vary the terms of the note.
    
      Hid, also, that the note being valid, there was no fraud in the settlement of the executor; and the fact that the collection of the note had been defeated does not affect the case.
    APPEAL from the Ripley Common. Pleas.
   Davison, J.

The facts alleged in the complaint are substantially these: In the year 1838, one Pinclcney Huclcstep died, leaving Haney Huclcstep, his widow, and Mary A. and John W. Huclcstep, his children and heirs at law. John W. Huclcstep died while an infant, before the commencement of this suit, leaving Haney and Mary A. Huclcstep, his heirs, &c.; the former of whom is now married to James Campbell, and the latter to Francis Campbell, and they, with their respective husbands, were the plaintiffs below. Pinclcney Huclcstep, at his death, left a will, whereby he appointed Jacob Overturf (who was the defendant below,) his executor. As such executor, he gave the requisite bond, with one Henry Hitch as his surety, obtained letters testamentary, and entered upon the duties of the trust. The bond is in the penalty of $600, and conditioned, in the usual form, for the faithful execution of the duties and trusts committed to the executor, according to law. Henry W. Ditch, the surety on the bond, is now also deceased. Plaintiffs aver that Overturf, the defendant, did n0^ IMthfully perform his duties as executor, in this: that, without any authority whatever to do so, he loaned to one Elizabeth Ditch $235, moneys belonging to the estate of the decedent, and received her promissory note, in these words:

August 6, 1841. Twelve months after date, we or either of us promise to pay Jacob Overturf, executor of Pinckney Huckstep, deceased, $235, value received, with 10 per cent, interest from date until paid.” “ Elizabeth Ditch.”

It is averred that after the execution of this note, viz., sixty days thereafter, one Preston Christie, at the alone request of the defendant, signed it as surety, for the purpose ■ of enabling him, defendant, to settle the testator’s estate; and with the express agreement, that so soon as that estate was settled, he, Christie, was to be released, and the defendant, in his stead, was to become surety on the note; that Elizabeth Ditch, being then in doubtful circumstances, afterward became utterly insolvent. The note, after Christie signed it, reads thus:

August 6, 1841. Twelve months after date, we or either of us promise to pay Jacob Overturf, executor of Pinckney Huckstep, deceased, $235, value received, with 10 per cent, interest from date until paid.”

“ Elizabeth Ditch,

“ Preston Christie.”

It is further averred, that in January, 1842, the defendant, concealing the circumstances under which Christie had signed the note, and the fact that Elizabeth Ditch was insolvent, and well knowing that Christie was not liable thereon, induced the Probate Court, then in session, to receive the said note, as so much money, in final settlement by him as executor of the decedent’s estate; said Court, when it received the note, relying alone on the solvency of Christie. And the plaintiffs in fact say, that the defendant, after said final settlement, failed and refused to become surety on the note, as stipulated between him and Christie. After this, in October, 1842, John Huckstep, the then guardian of said Mary A. and John W. IJuckstep, relying on the solvency of Christie, received the note in question from the Probate Court as so much money, and having retained the same about four years, J ' <-> */ 1 réturned it to the defendant, who instituted suit thereon and' recovered a judgment against Elizabeth Ditch, but failed to recover against Christie, for the causes above stated. And the said Elizabeth being insolvent and destitute of property, the judgment against her remains unpaid, &c. It is averred that' Mary A. Huckstep,-wlien she married Francis Campbell, was an infant, and has ever since been & feme covert; and that Nancy, the testator’s widow,-was married to James Campbell in the year 1840, and from thence hitherto has been,-and still is, a married woman. The relief prayed is, that the final settlement made by the executor be set aside, and that the plaintiffs recover of him $900, the amount of the note and interest, &c., and for general relief, &c. Demurrer to the complaint sustained, and the plaintiffs excepted.

We have a statute which says: “After the debts and legacies of an estate, and charges of administration, are paid, and all claims in favor of such estate are disposed of according to law, the executor or administrator shall be discharged from the further administration thereof, and no final settlement shall be revoked or re-opened, exc,ept by appeal to the Circuit Court, and the same shall appear to have been illegally made: Provided however, that any person interested in said estate, so settled, may have said settlement set aside for mistake or fraud, at any time within three years after said settlement, and if such person be under any legal disabilities at the time of said settlement, then within three years after the removal of such disabilities.” 2 it. S., § 116, p. 275.

The complaint in this case is evidently based upon the proviso to the enactment just quoted; and conceding that the plaintiffs have been, and are, under the disabilities contemplated in the proviso, still the inquiry arises, whether the facts alleged sufficiently show that in the settlement sought to be annulled there was “mistake or fraud.” If it is not so shown, then the demurrer was well taken. It is not assumed that there was a mistake in the settlement; but the charge is, “ that the defendant concealed the circumstances under which Christie signed the note, and well knowing that Christie was not liable thereon, induced the Probate Court to receive said no^e as 80 mucll mone7) in final settlement,” &c. As has been seen, the circumstances concealed by the defendant are these: a Christie, some sixty days after the note was executed by Elizabeth Ditch, signed it, at the defendant’s request, as surety, for the purpose of enabling the defendant to settle the testator’s estate, with the agreement that so soon as that estate was settled, he, Christie, was to be released,” &c. We are therefore led to inquire, whether these circumstances render the note void; because, if the note as to Christie was valid, and the Court received it, he being solvent, there was no fraud in the transaction, though the defendant, by such concealment, may have intended to commit a fraud. Keller v. Johnson, 11 Ind. 337. But, in our judgment, the circumstances above detailed do not, as to Christie; invalidate the note; because, in point of law, they could not be set up against its legal effect. Russell v. Branham, 8 Blackf. 277. To admit them to be proved in defense of an action upon the note, would be to allow its terms to be varied by parol evidence. This the law will not permit. It follows that the note was valid as against Christie, when the Court received it, and the result is there was no fraud in the settlement. Mahan v. Sherman, 7 Blackf. 378; Ferris v. Ludlow, 7 Ind. 517. The mere fact that Christie, after the settlement in the Probate Court, successfully resisted a suit upon the note, can have no effective bearing upon the decision of this case. As no mistake or fraud appears in the settlement, we must hold that the demurrer was well taken.

W. S. Holman, for the appellants.

Per Curiam.

The judgment is affirmed, with costs.  