Cram v. Watson.

BOOK ACCOUNT. The auditor reported that on the 30th day of January, 1854, at Concord, N. H., the plaintiff contracted with the defendant to sell him one thousand bushels, or more, of potatoes, delivered in Boston, in good order and well sorted, at seventy cents per bushel, to be delivered on or before the first day of April then next, to be paid for by the defendant as fast as delivered; that on the 28th day of February following, the plaintiff delivered, on said contract, 672 bushels, 195 of which were unassorted, and many were more or less frozen; that the parties agreed that the frozen and small ones should be drawn out, and the good ones thereby ascertained, and it subsequently turned out that 157 bushels of the 672 were frozen, or too small for market, leaving 515 bushels to be accounted for, at seventy cents per bushel, amounting to $360.50, and that the plaintiff sold defendant a lot of straw, boards, &c,, at $3.00, making the plaintiff's whole account $363.50, toward which the defendant had paid at different times, $347.50, leaving a balance of $16.00, which he allowed, with interest on the same to September, 1853, making $17.44; that it was proved that no more potatoes were freighted to Boston by the plaintiff, until about the 10th or 12th of the following April, and those the plaintiff sold to another party; and that it was also proved that the sound potatoes were damaged for sale 10 cents in the bushel, by having had the frozen ones among them, but that he made no allowance for such damage.

Upon this report the county court, September Term, 1855,POLAND, J., presiding,-rendered judgment for the plaintiff for the amount reported by the auditor.

Exceptions by the defendant.

for the defendant.

P. Dillingham for the plaintiff.

The opinion of the court was delivered by

REDFIELD, CH. J. We understand the report of the auditor to find, that the potatoes allowed were accepted upon the contract, and if so, the defendant is bound by such acceptance, however much they were really depreciated, as it was not by any latent defect, but by being mixed with the others, which was well

Tremont Bank v. Estate of Paine.

known at the time of the acceptance, and no objection seems to have been made on that account. If not, the defendant is bound by the acceptance, and must pay for them at the stipulated price, as no damages were shown by the entire contract not being fully performed.

Judgment affirmed.

THE TREMONT BANK v. THE ESTATE OF CHARLES PAINE.

Effect of an allowance of a negotiable note against the estate of the payor upon an action against the endorser.

The mere allowance of a promissory note as a valid claim against the estate of its deceased payor, is no defense to an action upon it against an endorser. Nor will an order of the probate court for the payment of a dividend upon the note and other claims allowed against the payor's estate operate, before an actual payment, as a satisfaction pro tanto.

In this case the note was allowed against the estate of the payor, in the name of "Andrew T. Hall, President of the Tremont Bank." Held, that the allowance in his name was no defense to a proceeding against the endorser, in the name of the Tremont Bank.

APPEAL from commissioners. Declaration in assumpsit against the testator as endorser of a promissory note given by S. F. Belknap. Plea, the general issue; trial by the court, September Term, 1855,-POLAND, J., presiding.

The plaintiff read in evidence the note declared on; and the signatures of all the parties thereto, the due presentment, protest for non-payment, and notice were admitted; and the following facts were also admitted.

S. F. Belknap, the maker of the note, died in July, 1849, and administration was duly granted on his estate in this state, and also in Massachusetts; and commissioners were duly appointed in both states. The note was presented against Belknap's estate, in Massachusetts, and there allowed by the commissioners, in the

Tremont Bank v. Estate of Paine.

name of "Andrew T. Hall, President of the Tremont Bank." It was not presented against Belknap's estate in Vermont.

In Massachusetts a dividend of twenty-six and one-half cents on the dollar had been declared and ordered to be paid to the creditors who had proved their claims there; and notice thereof was given to the said Hall, but the same had not been paid. After this claim had been thus allowed, the testator, Paine, died, July 6, 1853, and commissioners were appointed on his estate; and this claim was presented and disallowed, and the plaintiff appealed.

The defendant claimed that upon these facts no recovery could be had in the name of the plaintiffs, and that at least the amount of the dividend declared in Massachusetts should be deducted; but the court rendered judgment for the full amount of the note, deducting endorsements. Exceptions by the defendant.

H. Carpenter for the defendant.

The liability of the endorser follows that of the principal, and cannot be seperated from it, and after an allowance of the claim against Belknap's estate, in the name of Andrew T. Hall, it cannot be allowed against the endorser in the name of another plaintiff. It is unlike the case of two joint and several promisors. Hackett v. Kendall, 23 Vt., 278. The case of Sawyer v. White, et ux., 19 Vt., 40, is not applicable.

Peck & Colby for the plaintiffs.

The exceptions show that the note was allowed against the estate of Belknap, in the name of "Andrew T. Hall, President of the Tremont Bank," and that is, in effect, in favor of the bank. The defendant shows no cause for questioning the plaintiffs' title to sue, as no person has title to the note, except the plaintiffs. Hackett v. Kendall, 23 Vt., 278; Sawyer v. White, 19 Vt., 40.

The opinion of the court was delivered by

BENNETT, J. We think the judgment of the county court should be affirmed. A judgment against the maker of a note, unsatisfied, is no defense to an action against an endorser of the same note,—and an allowance of a note against the estate of the maker, cannot have a greater effect. If the dividend ordered to be paid

Sherman, Admr. v. Estate of Dodge.

by the court of probate, by the administrator on Belknap's estate, had been paid, it would have reduced the damages as against the endorser; but the order to pay is no satisfaction pro tanto.

We think the fact that the note was allowed against the estate of Belknap, in the name of "Andrew T. Hall, President of the Tremont Bank," is no defense to this claim against Paine's estate. If the legal title to that judgment is in Hall, he holds it evidently, in trust, for the benefit of the bank. In this state it has been held that a promise made to A. B., Cashier of a particular bank, naming the bank, is, in law, a promise to the bank. The case of Hackett v. Kendall, 23 Vt., 278, more than meets this case in principle. If this claim is paid by the estate of Paine, to the Tremont Bank, it will be in no danger of a suit by the president of the bank; and if the demand, as allowed against the estate of Belknap, had been paid to A. T. Hall, president of the Tremont Bank, it would have been a bar to the present claim.

Judgment affirmed.

NATHANIEL SHERMAN, Administrator, v. THE ESTATE OF EBENEZER DODGE, Aplt.

Assets. Statute of uses.

Construction of deed.

The administrator of an insolvent estate is not bound to inventory and account for lands, the legal title to which was in the intestate, at the time of his decease, but the equitable title in another.

A covenant to stand seized to the use of a third person, which would be executed under the statute of Henry VIII., were that statute in force here, will be enforced by a court of equity.

The intestate, for the expressed consideration of $1,000, executed and delivered to his son, a warranty deed of certain real and personal property, with the condition that the grantor and his wife should have the use and possession of the property during their lives, the grantee to have possession at their decease and not until then. Held, that this was a grant of the intestate's whole estate, upon a condition subsequent that the grantee should permit the grantor and his wife to use and enjoy the property during their lives, the performance of which a court of equity would enforce.

Sherman, Admr. v. Estate of Dodge.

Held, also-that if a life estate were regarded as excepted from the conveyance, and as remaining in the grantor, the deed would be good as an agreement to convey the use for the benefit of the wife after the grantor's death, or, as a covenant to stand seized of the premises to her use, either of which would be enforced by a court of equity.

In either case, the life estate secured, or intended to be secured to the widow, should not, after the death of the grantor, be treated as a part of his estate, except for the payment of debts existing at the time of the conveyance.

A person's choses in action would be included in a conveyance of all his personal property of every name or nature.

APPEAL by the heirs of the estate of Ebenezer Dodge from a decree of the probate court, allowing the administration account of the appellee. The appellants claimed that the administrator should be charged with either the value, or the use of certain property owned by the intestate, July 2d, 1849, which he, on that day, conveyed to his son Alexander P. Dodge, by a deed containing the usual covenants of warranty, for the expressed consideration of one thousand dollars, under the following description, and with the following condition, viz: "all the land and real estate I now own in the "town of Marshfield aforesaid, more or less, reference to all deeds "on record for a more perfect description of the premises. I also "convey, as aforesaid, all my personal property of every name or "nature to the said A. P. Dodge, with this condition, to wit: that "I Ebenezer Dodge, and my wife Mary Dodge, shall have the "use and possession of said real estate and personal property "during our natural lives. The said A. P. Dodge to have posses"sion of said premises and personal property at our decease, and "not until then." Alexander P. Dodge, the grantee, and Mary Dodge, the person named in the deed, were left by the intestate at his decease, in possession of all the real and personal property mentioned in the deed, and have retained possession ever since, claiming it, in their own right, under the deed. The administrator, having paid all the debts which were allowed against the estate, out of said property, made no attempt to control the residue, being advised that the said Alexander and Mary were the absolute owners of it, by virtue of said deed. The property so conveyed was inventoried as a part of the intestate's estate, and the administrator charged himself with it, in his account, at its appraised value, and credited himself with the balance not used for paying the