The personalty devolves upon the executor by virtue of the will, upon the administrator by virtue of the law. The death is equivalent to an assignment by operation of law. Even a foreign administrator is entitled to the personalty. It follows as a matter of necessity that all unaccepted checks outstanding are revoked by the death of the depositor, except that the bank will be protected as to payments made before notice of the death, just as it will be protected as to payments made before notice of the assignment. The word "revoked " hardly expresses the fact; the check is not revoked, but as an order to pay it is not binding upon the bank because the depositor has no longer any funds; the deposit belongs to the personal representative. The idea, therefore, that the death is the revocation of a power given by the check is a total mistake. The bank, of course, may pay the check or may accept it after the drawer's death, just as the drawee of a bill of exchange may accept or pay it after the drawer's death. But the bank, having paid, could not charge it against the depositor's account. Yet in equity the bank ought to be subrogated to the claim of the payee of the check against the drawer. But this would not be a right arising out of payment of the check as a check, but rather an equitable assignment of the payee's original claim.

4 Schluter v. Bowery Sav. Bank, 117 N. Y. 125. But he could not sue except by statute.

5 Nat. Com. Bank v. Miller, 77 Ala. 168; Fordred v. Seamen's Sav. Bank, 10 Abb. Pr. (N. S.) 425; Simmons v. Cincinnati Sav. Soc., 31 Ohio St. 457. Even if it be drawn to pay funeral expenses by person in extremis. Second Nat. Bank v. Williams, 13 Mich. 282.

6 Brennan v. Manuf. Nat. Bank, 62 Mich. 343, dictum. See Tate v. Hilbert, 2 Ves. Jr. 111.

check is to the payee a power coupled with an interest and therefore irrevocable. This view be trays a confusion between ownership of the check itself and ownership of the credit in the bank. The two things are wholly distinct. It is enough to say that all the adjudicated law is contrary to this theory. The check may be an authority to receive the money, but it gives no power over or ownership in the deposit. See Gardner v. First Nat. Bank, 10 Mont. 149,

7 Laclede Bank v. Schuler, 120 where a power to a bank to apply

U. S. 511.

8 Mr. Daniel in 3 Va. Law Jour. 323, puts forward the view that a

deposit was held not a power coupled with an interest.

So far the law seems reasonably certain, wherever the rule prevails that the holder of a check has no claim upon the bank until acceptance of the check by the bank. But in a few states the rule prevails that the holder of a check gains a right of action at law against the bank if it refuses payment of a check when it has sufficient funds credited to the drawer.9 The rule, however, is fixed in these last named states, that if the bank has not funds when the check is presented, even if it had funds when the check was drawn, no liability arises against the bank.10 It is the presentment of the check that is the inception of the holder's right against the bank." If this be true, it follows as a matter of necessity that, in the states spoken of, the death of the drawer compels the bank to refuse payment of any check of the drawer which is for the first time presented after the death of the drawer, or rather notice thereof,12 because the drawer ceased to own the deposit, and ceased, therefore, to have funds to his credit as soon as he died. His death ipso facto transferred the deposit to his personal representative, who, whether appointed by will or by the court, takes title of the date of the death. This result also follows from the proposition that since presentment is necessary to fix any liability upon the bank, a check may be revoked under the Illinois rule at any time before presentment.13 If it be kept in mind that

9 Illinois, Kentucky, Nebraska, South Carolina, and perhaps Texas, hold the rule. Missouri and Iowa have repudiated it. Louisiana has decisions both ways. See § 147, post.

10 Bank of Antigo v. Union Trust Co., 149 Ill. 343. It is rather singular that Mr. Justice Shope in this case should have written himself down as believing that the payee is the drawee of a check. The bank is the drawee.

11 Shaffner v. Edgerton, 13 Bradw. 132; Lester v. Given, 8 Bush, 357. The case of Met. Nat. Bank v.

Jones, 137 Ill. 634, 643, expressly says that the assignment does not take place until presentment. So Daniel, Neg. Inst. (4th ed.), sec. 1639.

12 The bank has the right to appropriate the deposit on its own claim before presentment. National Bank v. Blumensweig, 46 Ill. App. 297.

13 Tramell v. Farmers' Nat. Bank, 11 Ky. Law R. 900. Except as to a bona fide holder, which means one who took it from the payee. Union Nat. Bank v. Oceana Co. Bank, 80 Ill. 212; Marine Co. v. Stanford, 28

the question is between the bank and the holder of the check, no court ought to experience any difficulty in reaching this conclusion. It may be urged that it is held that a check is a partial assignment;1 and if equal to the deposit, a total assignment of the deposit; 15 and that as between the drawer and the payee it transfers so much of the fund,16, which amount passes to each successive holder of the check." But it is apparent that the courts do not use this phrase in its proper sense; (1) because an equitable assignment must have, like every other contract enforced in equity, a valuable consideration. There is no consideration passing from the drawer to the payee, for the reason that, unless the check is expressly taken as payment, it pays nothing.18 The original claim remains, and can be sued upon even after presentment of the check.19 It is not payment until it is itself paid.20 If the check is purchased by or discounted to a third party for value, he may become a bona fide holder as against the drawer. The check is not an equitable assignment, (2) because, until it is presented, it may be revoked," which, of course, would not be possible if the check were even an equitable assignment. It is not an equitable assignment proper, (3) because a bank in these states with the abnormal

Ill. 168: Bickford v. First Nat. Bank, 42 Ill. 238; Brown v. Leckie, 43 Ill. 497.

14 Munn v. Birch, 25 Ill. 35.

have known of this case, if he edited that edition personally.

20 Brown v. Leckie, 43 Ill. 497, 501, recognizes this rule, and says the

15 Gardner v. Nat. City Bank, 39 checks are not payment but the Ohio St. 600.

16 Bank of Antigo v. Union Trust Co., 149 Ill. 343, and cases cited therein.

means of payment. That the holder is the agent of the drawer which precludes him from having the absolute title. See the place

17 Merchants' Nat. Bank v. Ritz- last cited. This is said even as to inger, 20 Bradw. 27.

18 Thompson v. Bank of Brit. No. Am., 82 N. Y. 8. Numerous cases could be cited to this proposition.

19 Ridgeley Bank v. Patton, 109 Ill. 479. Daniel, Neg. Inst. (4th ed.), sec. 1639, says this, of course, would not be allowed. He seems not to

certified checks, and the same rule is held as to certificates of deposit. Leake v. Brown, 43 Ill. 372.

21 Tramell v. Farmers' Nat. Bank, 11 Ky. Law R. 900; and see note 13, ante, to this section. Insolvency revokes it before presentation. National Bank v. City Nat. Bank, 68 III. 398.

theory of a check is not compelled to pay part of a check;22 but if the check were an actual assignment when drawn, it would be good to the extent of the deposit. Finally, presentment and acceptance by the bank of the check are necessary under this rule to release the drawer; 23 but if the check were an actual assignment, the drawer would have paid the claim against him to the amount of the check, and he would be liable only upon his implied representation that he had funds in the bank to the amount of the check. The failure of the bank to pay could not affect him if the bank had funds. Therefore it is only as to one who has taken as a bona fide holder the check from the payee that it can be said, under these decisions, that the check is an assignment before presentation. Yet, even if the check were conceded to be an assignment as between the drawer and payee, it confers no legal title, unless it is for the exact amount of the deposit. Being a partial assignment it is merely equitable." But to the executor or administrator a legal title passes by the death. As representing the creditors of the deceased, the personal representative has an equity equal to the equity of any other unsecured creditor, which a checkholder is until presentation of the check. So the equities being equal, the legal title will prevail, and that is in the personal representative. He did not become personal representative until the death, and hence as personal representative could have received no notice prior to the very moment that he got the legal title. The same result would follow if the executor or administrator and the check-holder

22 Coates v. Preston, 105 Ill. 470. It does not pass title to any part of the deposit. Pabst Brew. Co. v. Reeves, 42 Ill. App. 154.

23 Metrop. Bank v. Jones, 137 Ill. 634; Ridgeley Bank v. Patton, 109 Ill. 479.

24 Miller v. Bledsoe, 2 Ill. 530; Stone v. Pratt, 25 Ill. 25. This last case was decided ten pages away from Munn v. Birch, 25 Ill. 35,

which held the check to be an equitable assignment.. If the check was an order as an equitable assignment, it conferred no right until presented. Such is the law as to every other assignment, and nowhere is the law more clearly held than in Illinois. See Moore v. Gravelot, 3 Bradw. 442; Creighton v. Hyde Park, 6 Bradw. 272.

are considered as having orders on the fund. The order first communicated to the holder of the fund would confer, as against the bank, the better right.25 We may conclude, then, that in these states the check must be presented before notice of the other assignment by death comes to the bank. No bank, therefore, in these states which we are considering, would be justified in paying a check not presented until after notice of the depositor's death unless, it may be in Illinois, to a bona fide transferror.26 The rule is a just and sound one. It can injure no one. If the check-holder has an honest claim he will obtain it by presenting it to the personal representative. If his claim is not honest he ought not to obtain it merely because he has a check. If the estate is solvent, the claim will be paid in full, and the check could be used as evidence of an admission. If it is not solvent the check-holder ought not to obtain a preference. In all other states, and in cases subject to the jurisdiction of the United

25 Laclede Bank v. Schuler, 120 U. S. 511,and the cases cited therein. Compare Moore v. Gravelot, 3 Bradw. 442; Creighton v. Hyde Park, 6 Bradw. 272, which recognize this rule as to orders upon a fund, and those cases seem to be undisputed authority in Illinois.

26 The law unquestionably is in Illinois that as against a bona fide holder of a check the bank cannot refuse payment of the check. Niblack v. Park Nat. Bank, 169 Ill. 517, and the cases cited in note 13, supra. This is the most astonishing result of this weird rule that the holder can sue the bank. Even if the check were a bill of exchange before acceptance, a bona fide holder has no rights against the drawee. Yet here is the Illinois court reverting to the rule that a check is an assignment, holding that as against the bank the check

is an assignment before presentation, while it has held over and over again that it is not an assignment until it has been presented, and not even then if the depositor has not the full amount of the check. Then it is held that there is no duty upon the bank to reserve from future payments enough to pay an unpresented check. Gilliam v. Merchants' Nat. Bank, 70 Ill. App. 592. Then the court reverts to its former idea of assignment by the giving of the check, and holds that the check cannot be countermanded before presentation against a bona fide holder, so that the bank can refuse to pay. Gage Hotel Co. v. Union Nat. Bank, 171 Ill. 531. These cases are another instance of the great confusion caused by this rule. See for further illustrations note 30 to § 147, and note 22 to § 140.