intestate's estate does not exist until he has received his letters of administration from the proper court of probate, and until that time he would be excused from presenting the bill.85 The Negotiable Instruments Law provides that "when any party is dead, and his death is known to the party giving notice, the notice [of "dishonor] must be given to a personal representative, if there "be one, and if, with reasonable diligence, he can be found. If “there be no personal representative, notice may be sent to the "last residence or last place of business of the deceased." 86 f. Acts of one of two or more executors.— It seems to be well settled that where there are two or more executors appointed under a will, they are deemed in law but one person representing the testator; and the acts done by one of them which relate to the delivery, sale, or release of the testator's goods, are deemed the acts of all. Thus one of two executors may assign a note belonging to the estate of their testator; and he may also pledge such a note or assign it as collateral security for a judgment obtained against the estate of his testator.87 This rule applies as well to securities given to executors as such, after the death of their testator, as to those given to him in his lifetime, provided the money, when recovered, would be assets. 88 But where a note for a debt due the testator is made payable to two executors as such, an indorsement by one is not sufficient.89 If such a note was made payable 85. See preceding note. Section 141 of the Neg. Inst. Law (N. Y.) provides as follows: "Delay in making presentment for payment is excused when the delay is caused by circumstances beyond the control of the holder and not imputable to his fault, misconduct, or negligence. When the cause of delay ceases to operate, presentment must be made with reasonable diligence." ous, constitute an entity, and are regarded in law as an individual person. Consequently the acts of any of them in respect to the administration of estates are deemed to be the acts of all, for they have all a joint and entire authority over the whole property. Barry v. Lambert, 98 N. Y. 300, 308. See also Bordereaux v. Montgomery, Fed. Cas. 1,694, 4 Wash. C. C. 186; Herald v. Harper, 8 Blackf. (Ind.) 170; Wilkinson v. Wooten, 28 Ga. 568; Hord v. Lee, 20 Ky. 36; Dean v. Duffield, 8 Tex. 235, 58 Am. Dec. 108; Chapman v. City Council, 30 S. C. 549, 9 S. E. 591, 3 L. R. A. 311. 86. Neg. Inst. Law (N. Y.), § 169; post, chap. IX, § 108, (g). See also Eng. Bills of Exch. Act, 1882, § 49 (9). Where the maker of a note dies before it is due, a demand of payment on his widow at the last place of 88. Bogart v. Hertel, 4 Hill (N. Y.), his abode is prima facie a sufficient 492. This case expressly dissents from demand to charge the indorser, the the ruling made in Smith v. Whiting, burden of proof as to whether there 9 Mass. 334, where it was held that was an executor or administrator one of two executors cannot transfer being on the defendant. Bank of Washington v. Reynolds, Fed. Cas. 954, 2 Cranch, 289. 87. Wheeler v. Wheeler, 9 Cow. (N. Y.) 34. Coexecutors, however numer by indorsement a negotiable promissory note made to the two as executors, for a debt due the testator. 89. Smith v. Whiting, 9 Mass. 334; Johnson v. Mangum, 65 N. C. 146. to the deceased, under the rule above stated, either of the executors may transfer the note by indorsement and delivery." g. Note due from administrator or executor. It was a rule of the common law that if a creditor constituted his debtor as his executor, the debt was released and extinguished, for the same hand being at once to receive and pay, the action was suspended; and a personal action once suspended by the act of the parties is gone forever; but it was otherwise in equity in the absence of circumstances showing an intention to release the debt, and the equitable doctrine now prevails.91 The rule at law was never held to apply to administrators. And in equity the rule has been that the debt of the executor to the estate of his testator is considered to have been paid to himself, and becomes assets of the estate in his hands. In this country as in England an executor or administrator is now charged with the debt he owes to his decedent, and he must account for it in the same manner as other assets of the estate. The rule at law did not apply in cases where the Indorsement where note is payable his executor, the acceptor was disto two executors.- Where a note for charged at law, and all the other para debt due the estate of the decedent is ties also, for a release to the principayable jointly to his two administra- pal also discharged the sureties. tors, both must join in an indorsement Freakley v. Fox, 9 B. & C. (Eng.) thereof; and a release of the liability 130; Waukford v. Waukford, 1 Salk. of the maker, in consideration of the (Eng.) 299; Cheetham v. Ward, 1 B. payment of less than the amount due & P. (Eng.) 630. And it has also been thereon, executed by one only of the held that if the payee of a note paypayees, is insufficient. Clark v. Gram- able on demand constituted the maker ling, 54 Ark. 525, 16 S. W. 475. The of the note his executor, the maker rule in the text is not without its was discharged, not only from his liaopponents. It is difficult to reconcile bility to the estate of the testator, but the conflict between the cases cited also from his liability as maker to an in this note and that of Bogert v. indorsee to whom the executor asHertel, 4 Hill (N. Y.), 492. Parsons, signed it after the testator's death. in his work on Notes and Bills (p. 158), Freakley v. Fox, 9 B. & C. (Eng.) 130. says: "Whether the same rule will But it was otherwise where the note apply to notes taken by them for debts was in the hands of an indorsee at the due the estate has been considered time of the testator's death. doubtful. It would seem to depend upon the question already noticed, namely, whether such notes are to be considered as assets. And it being now settled that they are, it seems that they may be indorsed as effectually by one executor as by all." 90. Rawlinson v. Stone, 3 Wils. (Eng.) 1, 2 Stra. 1260. 92. Ipswich Mfg. Co. v. Story, 5 Metc. (Mass.) 310. In many of the States, as in New York, it is provided that the executor must account for his debt to the estate as assets, and his appointment is no legal release or extinguishment of the debt. Code Civ. Pro., § 2714. And see Adair v. Brimmer, 74 N. Y. 91. Byles on Bills (16th ed.), p. 64. 539; Matter of Consalus, 95 N. Y. Effect of appointment of maker of 340; Winship v. Bass, 12 Mass. 198; note or acceptor of bill as executor.- Tarbell v. Jewett, 129 Mass. 457; McIt has been held that if the holder Carty v. Frazer, 62 Mo. 263; Charles of a bill appointed the acceptor as v. Jacob, 9 S. C. 295. assets of the estate were not sufficient to satisfy the testator's debts.93 § 28. Trustees, guardians, committees, etc. 94 Many of the rules which have already been stated as applying to the rights and liabilities of executors and administrators are also applicable to trustees, guardians, committees, and others acting in a fiduciary capacity. It is a general rule regulating the investment of trust funds that such funds cannot be invested in personal securities. There must be express authority in the instrument creating the trust to authorize a loan on personal promises.95 It follows, therefore, that a person acting in a position of trust cannot, without violating his duty, loan the money belonging to the trust estate and take as security therefor the promissory note of the person to whom the money is loaned.96 It makes no difference that there are several joint promisors;97 nor that the loan is to a person to whom the testator loaned 98 money on his personal promise; nor will personal sureties justify the loan." Trustees and guardians, like executors and administrators, cannot bind the estate under their control, or the persons for whom or for whose benefit they act, by their promissory notes, or by the acceptance of a bill of exchange; to give any validity to such a note or bill they must be deemed personally bound as makers or acceptors.1 A guardian may assign or transfer notes taken by and payable to him as guardian, and the purchaser or assignee who buys gets a good title if he buys in good faith. The rule in respect 93. 2 Bl. Comm. 512. 94. Perry on Trusts, § 453. 95. Forbes v. Ross, 2 Bro. Ch. (Eng.) 430; Child v. Child, 20 Beav. (Eng.) 50; Simmons v. Oliver, 64 Wis. 633, in which case a trustee was held personally liable for a loss occasioned by his investment of trust funds in a promissory note made by a manufacturing corporation. Investments by trustees upon mere personal securities are not regarded by the courts of the State of New Jersey as safe, prudent, or proper; consequently if they be made, they are at the risk of the trustees, who must personally answer for any loss that may result from them. Dufford v. Smith, 46 N. J. Eq. 216. A certificate of deposit issued by a national bank, the stock of which is selling at par, and occasionally at a premium, may be purchased by a trus tee with the trust funds, and he will not be liable for a loss arising from a failure of the bank before the day stipulated for the payment of the certificate. Hunt, Appellant, 141 Mass. 515, 6 N. E. 554. 96. Walker v. Symonds, 1 Swanst. (Eng.) 81, in which case Lord Hardwicke says: "A promissory note is evidence of a debt, but no security for it." 97. Clark (Mass.), 427. 98. Styles v. Guy, 1 Mac. & G. (Eng.) 423. V. Garfield, 8 Allen 99. Watts v. Girdlestone, 6 Beav. (Eng.) 188. 1. Story on Promissory Notes, § 63. 2. Zoller v. Cleveland, 69 Ga. 631. to transfers of negotiable paper by indorsement applicable to guardians and trustees is the same as in the case of executors and administrators.3 C. PERSONS ACTING IN REPRESENTATIVE CAPACITY. 8 29. Agents. 4 a. In general.— Whatever a man may do himself he may do by his agent. An agent has been defined "as a representative vested with authority, real or ostensible, to create voluntary primary obligations for his principal, by making contracts with third persons, or by making promises or representations to third persons calculated to induce them to change their legal relations." 5 No particular form of the appointment of an agent is necessary to enable him to bind his principal by making, drawing, indorsing, or accepting bills and notes; he may be specially appointed for this purpose or derive his power from some general or implied authority. And where the act of an agent in attempting to bind his principal by means of a bill or note is not within the authority conferred upon such agent, it may be subsequently made the act of the principal by ratification.' acts of another by one for whom the other assumes to be acting, but without authority; and this results as effectually to establish the duties, rights, and liabilities of an agency as if the acts ratified had been fully authorized in the beginning. Am. & Eng. Enc. of Law (Vol. 1), p. 1181. See Lawrence v. Taylor, 5 Hill (N. Y.), 107; Wilson v. Darue, 58 N. H. 392. Ratification of agent's acts as to bills and notes. In the case of Harrod v. McDaniels, 126 Mass. 413, it appeared that B., acting as the attorney of A., signed the name of the latter on the back of the note in October, 1874; that in May, 1874, A. gave B. a power of attorney which authorized him to manage A.'s property during the absence of the latter from the United States, and to sign notes; that in August, 1874, A. returned to the United States, and was there when the note was executed; and that in August, 1875, A., with other creditors of the maker of the note in suit, who had then become bankrupt, signed an agreement of composition under seal, and received a dividend on the note from the bankrupt's estate, and agreed b. Authority to make notes and accept bills. The general authority bestowed upon an agent to transact the business of his principal, and to receive payment of and to discharge debts, will not imply an authority to accept or indorse bills, so as to charge the principal. The power to make or indorse negotiable instruments must be expressly granted by the principal. A power so granted is subject to strict interpretation, and must be performed in strict conformity with the terms thereof.10 A negotiable in to save the maker of the note harm- A principal who accepts and retains the proceeds of a note, knowing that it was transferred by his agent upon an unauthorized indorsement, ratifies such indorsement. Baer v. Lichten, 24 Ill. App. 311. A mere subsequent unconditional promise to pay a note signed by an agent without authority, is not as a matter of law a ratification, but evidence from which a ratification may be inferred. Commercial Bank v. Bernero, 17 Mo. App. 313; Ousley v. Phillips, 78 Ky. 517, 39 Am. Rep. 258. 9. Robertson v. Levy, 19 La. Ann. 327; Jackson v. Bank, 92 Tenn. 154, 20 S. W. 802. In the leading English case of Attwood v. Munnings, 7 B. & C. (Eng.) 273, the facts were as follows: A. B., who carried on business on his own account, and also in partnership, went abroad and gave to certain persons in England two powers of attorney; by the first of which, authority was given for him, and in his name and to his use to do certain specific acts (and amongst others, to indorse bills, etc.), and generally to act for him, as he might do if he were present; and by the second, authority was given "for him and on his behalf, to accept bills drawn on him by his agents or correspondents." C. D., one of A. B.'s partners (and who acted as his agent), in order to raise money for the payment of creditors of the joint concern, drew a bill which the attorney accepted in A. B.'s name by procuration. In an action against A. B. by the indorsee of the bill, it was held, first, that the right of the indorsee depended upon the authority given the attorney; second, that the power only applied to A. B.'s individual and not to his partnership affairs; third, that the special power to accept extended only to bills drawn by an agent in that capacity; and that C. D. did not draw the bills in question as agent, but as partner; and fourth, that the general words in the power of attorney were not to be construed at large, but as giving general powers for the carrying into effect the special purposes for which they were given. 8. Hogg v. Smith, 1 Taunt. (Eng.) 347; Murray v. East India Co., 5 B. & Ald. (Eng.) 204; Howard v. Baillie, 2 H. Bla. (Eng.) 618; In re Cunning ham, 35 Ch. Div. (Eng.) 532; Odell v. Cormack, 19 Q. B. D. (Eng.) 223, 56 L. J. Q. B. (Eng.) 463. But where an agent managed a business and acted ostensibly as principal, it was held that he could bind his principal by accepting a bill, even though expressly forbidden SO to do. Edmunds V. 10. Farmington Sav. Bank v. Buz. Bushell, L. R., 1 Q. B. (Eng.) 97. zell, 61 N. H. 612; Batly v. Carswell, See also Perkins v. Boothby, 71 Me. 91; Temple V. Pomroy, 4 Gray (Mass.), 128; New York Iron Mine v. Bank, 39 Mich. 644. Johns. (N. Y.) 48; Nixon v. Palmer, 8 N. Y. 398; Craighead v. Petersen, 72 N. Y. 279; Camden Safe Dep. Co. v. Abbott, 44 N. J. L. 257; Brant |