Goodnow v. Warren

Devens, J.

All the notes in suit matured after the decease of Samuel Gregg, the defendants’ intestate. The two first became due after the will of Gregg had been offered for" probate and letters testamentary had been applied for by the executors named therein, but before the time had expired within which notice upon such offer and application had been ordered by the Probate Court. Subsequently to the time when such order of notice was returnable, the executors named declined to accept the trust, and Fisher Ames was then appointed special administrator of the estate of Gregg, and was acting as such when the third note matured and when notice of the non-payment thereof was given to Stockbridge, one of the executors named in the will.

*82 When an indorser of a note has died and the holder seeks to render his estate liable, even if there is no executor or administrator, it is still the duty of the holder to use all reasonable diligence that those interested in the estate may be promptly informed of the demand. It has been held that if notice be sent to the last residence or last place of business of the deceased, it is sufficient to render his estate responsible, as it may reasonably be supposed that it will thus reach those interested in it. Merchant's Bank v. Birch, 17 Johns. 25 . Linderman v. Guldin, 34 Penn. St. 54.

Where an executor has been named in a will, as he is the person to whom the testator has confided the administration of his estate, such notice may also be properly given to him, and it may fairly be expected that the benefit to be anticipated will be at least as great as if it were left at the last residence or place of business of the testator. It is true that such a person may never be actually appointed executor by the Probate Court, or that he may renounce the trust; but as the only object of leaving the notice at the last residence is that the facts therein stated may come to the knowledge of those whose duty it is to protect the estate, it is not to be expected that any person can ordinarily be found there upon whom this duty will rest more strongly than upon one who is named as executor in the will. Shoenberger v. Lancaster Savings Institution, 28 Penn. St. 459.

In Mathewson v. Strafford Bank, 45 N. H. 104, it was held that such a notice to a person who was afterwards appointed administrator was not sufficient to charge the estate of the deceased ; but at the time the person by whom it was received occupied no Such relation to the estate that he was either honorably or in legal duty bound to do anything for its protection.

When the notices of the dishonor of the first two notes were received, there was no proper representative of the estate of Gregg. Stockbridge, although the maker of the notes, more nearly represented it than any other person, except his co-executor named in the will, (who, with himself, was then an applicant for letters testamentary under it,) and it was correctly ruled that the facts which the evidence tended to show would in legal effect render the estate of Gregg liable upon his indorsement.

*83 Different considerations apply to the notice as to the nonpayment of the third note. This note fell due between forty and fifty days after the will of Gregg had been admitted to probate and the executors named had renounced the trust and after Ames had been appointed special administrator. Although no public advertisement had been made by Ames of his appointment, there had been public advertisement of the application of the defendants to be appointed administrators, with the will annexed, on the estate of Gregg. The deceased was known by the plaintiff and the notary to have been a citizen of Boston, and all these facts would readily have been ascertained on inquiry.

It is the duty of the holder of the note, where there is an executor or administrator known to him, or who may be known to him on his using reasonable diligence, to notify him of the dishonor of the note on which the holder seeks to render the estate of the deceased liable. Oriental Bank v. Blake, 22 Pick. 206 . Massachusetts Bank v. Oliver, 10 Cush. 557 . Cayuga County Bank v. Bennett, 5 Hill, 236 . Interpreting the instruction of the learned judge as only authorizing the jury to find upon the facts which the evidence tended to prove that the estate of Gregg was liable, it was still erroneous. These facts show that, with reasonable diligence on his part, the holder could have ascertained that a special administrator had been appointed, who was the proper person to receive notice of the dishonor of the note for which it was sought to render the estate of Gregg liable. He was not justified in presuming, without inquiry, that the executors named had been appointed and had accepted the trust, and in sending the notice to one of them.

Exceptions sustained as to third note only.