It seems that under the statutes of Indiana, an executor named
in a will who has never qualified or been appointed by the Court of
Probate or taken out letters testamentary has no power to redeem a
mortgage of real estate, either as an executor or as trustee under
the will.
In equity, a mortgage of real estate, made to one of two
creditors to secure the payment of a debt due to them jointly is
incident to the debt, and may be released, after the death of the
mortgagee, by the surviving creditor, and a release, made in good
faith by the survivor, of part of the land from any and all lien by
reason of the mortgage is valid against himself and the
representatives of the deceased, although he is in fact executor of
the latter and describes himself as such in the last clause and the
signature of the release and has by law no authority to enter the
release as executor, for want of letters testamentary.
This was a bill in equity by George P. Bissell against Abraham
G. Barnett, his wife, Byron H. Barnett and James W. Barnett his
minor sons, his sisters Susan B. Shoaff, and Mary Ann Wall and
their husbands, Henry J. Rudisill, Oscar A. Simons and John H.
Bass, Henry Burgess, Charles A. Zollinger, and the representatives
of John J. Kamm, to foreclose mortgages of real estate in Indiana.
Answers and cross-bills were filed by the various parties setting
up their different interests, and a final decree was rendered for
the plaintiff, from which Mr. and Mrs. Wall, Mr. and Mrs. Shoaff,
and the two minor sons of Abraham G. Barnett, appealed to this
Court. The case appeared by the pleadings and proofs to be as
follows:
In 1869, Abraham G. Barnett, his brother John H. Barnett, and
Newton B. Freeman were partners in a paper mill, and desired to
raise money for the use of the partnership and to pay up Freeman's
share of the capital. At the request of the two Barnetts and of
Rudisill (who appears to have been promised an interest in the
partnership), Bissell lent to the
Page 125 U. S. 383
two Barnetts the sum of $8,000, the whole of which was put into
the firm and $5,000 of which was credited to Freeman. Pursuant to
an agreement then made by the three partners and Rudisill and
Bissell, the following instruments were executed:
On July 15, 1869, the two Barnets executed to Bissell eight
bonds for $1,000 each, payable in ten years, with interest
semiannually, secured by mortgage from John H. Barnett to Bissell
of land in the City of Fort Wayne.
On the same day, Rudisill executed to John H. Barnett a bond,
reciting that
"said Henry J. Rudisill has received from said Barnett the sum
of $5,000, part of a loan made by J. H. Barnett and Abraham G.
Barnett for the sum of $8,000 of George P. Bissell, secured by"
the bonds and mortgage aforesaid, and conditioned to "pay said
sum of $5,000 of said bonds, with interest thereon, as it becomes
due."
On December 23, 1871, as security for the payment of this bond,
Rudisill executed to John H. Barnett a mortgage of land, upon all
of which, except a small piece, there existed a prior mortgage,
made by Rudisill to his mother to secure the payment of an annuity
to her, and now held by Simons and Bass.
On January 23, 1872, John H. Barnett died, leaving a will
containing the following provisions:
First. A devise of part of the land, mortgaged by him to Bissell
as aforesaid, to Mrs. Wall, with successive remainders to Byron H.
Barnett, to his children, and to Abraham G. Barnett.
Second. A devise of the rest of that land to Mrs. Shoaff, with
successive remainders to James W. Barnett, to his children, and to
Abraham G. Barnett.
Third and Fourth. Devises of other lands to Mrs. Shoaff land to
Abraham G. Barnett and his children.
"Fifth. Now as to my interest in the paper mill and business
carried on at the City of Fort Wayne under the name of Freeman
& Barnett, which is regarded as one-third in extent of said
business effects, real and personal &c. &c., stock, assets,
machinery, dividends, dues &c., I devise and bequeath,
Page 125 U. S. 384
subject to the conditions and agreements, performed or
unperformed, which were named at the time I became a party in
interest in said paper business so carried on by and in Freeman
& Barnett's name, and which conditions and agreements are known
to my brother, A. G. Barnett, I give and bequeath unto my said
brother, A. G. Barnett, and to my nephews, James Barnett Wall and
Charles W. Wall, sons of my sister, Mary A. Wall, all my interest
in the paper mill and business aforesaid, real and personal or
otherwise, so carried on and owned by said Freeman & Barnett,
to have and to hold to each of said devisees or legatees, three in
number, so named, one full third of my said interest in said paper
business, mill &c. The sole control of the respective interests
of said James B. and Charles W. Wall shall be under the control of
my brother, A. G. Barnett, until said James B. shall reach the age
of twenty-five years. The profits arising out of said interest so
bequeathed to said Charles and James B. respectively shall be at
reasonable periods each year paid said legatees respectively by
said Barnett, or by any other person who may be authorized to
control said interest in the progress of said business by law or
otherwise. And I hereby give the said A. G. Barnett the right to
sell said interests of said Charles and James B. if he shall deem
such sale expedient for the best interests of said Charles and
James, he, the said A. G. Barnett, first giving said Charles and
James security for faithfully accounting to them for the proceeds
of said sale, or if he shall desire to buy said interests, or
either of them, before either shall be of age, then some third
party shall qualify as guardian and proceed to sell the same to
said A. G. Barnett under order and authority of law."
"Sixth. I name my brother, A. G. Barnett, my executor, to act
himself or jointly with one he may choose; if acting alone, then he
shall and may do so without bond as such executor, but if acting
with another, both shall give bond and take out letters
testamentary and proceed according to law; but if he shall act
alone, then, as executor, he shall have authority under this will
to proceed as if he had letters testamentary to execute the trusts
devolved on him as executor, as also those
Page 125 U. S. 385
which may incidentally arise in the execution of this trust as
executor, but not any others arising out of a different relation,
such as trustee or guardian of some of the parties named herein or
of some of the trust funds named hereinbefore. He shall have power
to proceed to collect all debts, judgments, or choses in action due
me at my death, all rents due me at my death, of any and all my
real estate except the homestead, and to have control of and
dispose of all my personal property, moneys and effects, reducing
them to availability, and to collect all rents on the lots devised
respectively, located in the City of Fort Wayne, until such rents
and the reasonable use of the whole homestead place, including that
devised to Mrs. Susan Shoaff and to himself, until such funds so
arising from rents, use of homestead, moneys, personal property
&c., shall be enough to pay my debts, funeral expenses, debts
of last illness, and to purchase a lot in Lindenwood Cemetery,
properly and fairly improve it, pay for exhuming the remains of my
father and mother; their interment, and the erection of a monument
suitable to their condition in life in said lot, and this shall be
done speedily as the nature of the business shall allow, after
which the devisees respectively herein lastly named, and
incidentally referred to, shall control said property as the same
is intended in the respective clauses wherein said property is
devised."
On February 7, 1872, the will was duly admitted to probate, on
the testimony of the subscribing witnesses, in a court of the State
of Indiana.
Abraham G. Barnett never qualified or gave bond as executor, as
required by the statutes of Indiana, and the court of probate never
made any order appointing him executor, or directing letters
testamentary to issue, and no such letters were ever issued. But he
assumed to act as executor, and as such took control of the real
and personal property, collected the rents of the real estate for
some months (after which he turned it over to the devisees), paid
the testator's debts and funeral expenses, purchased a burial lot,
removed the remains of the testator's father and mother to it, and
erected a monument upon it. The other devisees knew of all these
acts,
Page 125 U. S. 386
made no objection, supposing him to be authorized by the will to
do them.
On January 23, 1875, Rudisill sold and conveyed by warranty deed
to Burgess, Zollinger, and Kamm part of the land included in the
mortgage from him to John H. Barnett, and in the annuity mortgage
to his mother; she released from her mortgage this part of the
land, and Abraham G. Barnett executed, on the margin of the record
from Rudisill to John H. Barnett, a release of the same part, in
the following words:
"I hereby release from any and all lien by reason of this
mortgage the following of the premises herein described: all that
part of S.E. 1/4 of sec. 35, t'p 31, R. 12 East, this day conveyed
by Henry J. Rudisill to H. Burgess, Charles A. Zollinger, and J. J.
Kamm. Witness my hand and seal as such executor, January 23,
1875."
"ABRAHAM G. BARNETT [SEAL]"
"Executor of the Estate of John H. Barnett, deceased"
On the same day, and as part of the same transaction, Rudisill
executed to "Abraham G. Barnett, as executor of the estate of John
H. Barnett, deceased," a mortgage of other lands, partly included
also in the annuity mortgage. All the parties to this transaction
acted in good faith. But the transaction was not shown to have been
known to the devisees until about the time of the beginning of this
suit, or to have ever been assented to by them.
The bill prayed for a foreclosure of the mortgages from John H.
Barnett to the plaintiff and from Rudisill to John H. Barnett, or,
if the court should hold the release of the latter good, then for a
foreclosure of the mortgage from Rudisill to Abraham G.
Barnett.
The circuit court decreed that the release was valid, and that
the title in the land so released be quieted in the present holders
as against all other parties to this, suit, and that the various
parcels of land be sold and applied to the payment of the debts
secured by the several mortgages in an order not objected to by the
appellants, supposing the release to be valid, which they
denied.
Page 125 U. S. 387
MR. JUSTICE GRAY, after stating the facts as above, delivered
the opinion of the Court.
The principal question in this case is the validity of the
release, executed by Abraham G. Barnett, of the mortgage from Henry
J. Rudisill to John H. Barnett. By the law of Indiana, a mortgage
creates only a lien to secure the mortgage debt, leaving the legal
title of the land in the mortgagor.
Fletcher v. Holmes, 32
Ind. 497.
It was argued for the appellees that this release was valid,
considering Abraham G. Barnett in anyone of three capacities: 1st.,
as executor of the will of John H. Barnett; 2d., as trustee under
that will; 3d., as surviving joint owner in equity of the bond and
mortgage executed by Rudisill to John H. Barnett to secure the
payment of a debt due to John H. Barnett and Abraham G. Barnett
jointly.
1. The title of an executor in the personal property of his
testator, being derived from the will, doubtless vests in him from
the moment of the testator's death.
Dixon v.
Ramsay, 3 Cranch 319,
7 U. S. 323;
Hill v.
Tucker, 13 How. 458,
54 U. S. 466.
At common law, he might, before proving the will in the probate
court, not only take possession of the property, but sell or
dispose of it, pay debts of the estate, receive or release debts
owing to it, bring actions for property which was in the testator's
actual possession, and do almost any other acts incident to his
office, except that he could not maintain any other actions without
producing a copy of the probate and letters testamentary at the
trial. 1 Williams on Executors (7th ed.) 293, 302-303, 629.
But the statutes of Indiana provide that whenever any will shall
have been admitted to probate, letters testamentary shall be issued
to the persons named therein as executors (being
Page 125 U. S. 388
competent by law to serve as such) who shall qualify, and
further provide as follows:
"SEC. 3. Every person named in the will as executor, who shall
qualify and give bond, shall be named in such letters, and every
person not thus named shall be deemed superseded."
"SEC. 4. Any person who is appointed executor who shall renounce
his trust in writing filed with the clerk or who shall fail to
qualify and give bond within twenty days after probate of such will
shall be deemed to have renounced such appointment, and such
letters shall issue to any other person named in the will capable
and willing to accept such trust."
"SEC. 5. No executor named in the will shall interfere with the
estate entrusted to him further than to preserve the same, until
the issuing of letters; but for that purpose, he may prosecute any
suit to prevent the loss of any part thereof."
"SEC. 19. Every person appointed executor, administrator with
the will annexed, or administrator, before receiving letters, shall
execute a separate bond,"
with sureties,
"in a penalty payable to the State of Indiana of not less than
double the value of the personal estate to be administered,
conditioned that he will faithfully discharge his duties as such
executor or administrator, and shall take and subscribe an oath or
affirmation that he will faithfully discharge the duties of his
trust according to law,"
and the bond, as well as the oath or affirmation, is required to
be recorded. 2 Gavin & Hord's Stat. 484, 489, 491; Rev.Stat.
Ind. 1881, ยงยง 2222-2225, 2242, 2243.
These statutes clearly manifest the intent of the legislature
that although the personal property shall vest from the death of
the testator in the executor named in his will, yet in order to
secure the interests of creditors and of legatees, every executor
shall give bond and take out letters testamentary before he can do
any act as executor except such as may be necessary to preserve the
property and to prevent the loss of any part of it. The prohibition
is absolute that, except for that purpose, "no executor shall
interfere with the estate" until the issuing of letters
testamentary. The direction in the will of John H. Barnett that
Abraham
Page 125 U. S. 389
G. Barnett may act as executor, without giving bond or taking
out letters testamentary, as the statutes require, is of no legal
effect.
The current of decision in other states, so far as we are
informed, is to the effect that under similar statutes (some of
them less peremptory in their terms), any acts done by an executor
by way of disposing of the property are invalid unless he takes out
letters testamentary or is appointed executor by an order of the
court of probate, equivalent to the issue of such letters.
Monroe v. James, 4 Munford 194;
Martin v. Peck, 2
Yerger 298;
Cleveland v. Chandler, 3 Stew. 489;
Carpenter v. Going, 20 Ala. 587;
Ex Parte
Maxwell, 37 Ala. 362, 364;
Kittredge v. Folsom, 8
N.H. 98, 111;
Rand v. Hubbard, 4 Met. 252, 257;
Gay v.
Minot, 3 Cush. 352;
Carter v. Carter, 10 B.Monroe
327;
Stagg v. Green, 47 Mo. 500;
Hartnett v.
Wandell, 60 N.Y. 346, 350;
McDearmon v. Maxfield, 38
Ark. 631.
We have been referred to no decision of the Supreme Court of
Indiana that directly bears upon this case. The only one that
approaches it is
Hays v. Vickery, 41 Ind. 583. In that
case, an heir, named in the will as executor, had, without
qualifying as such or taking out letters testamentary but with the
consent of all the other heirs, devisees, and legatees, acted as
executor and made distribution of the property. A subsequent order
of the probate court, made without notice to him upon the
application of one of those heirs, appointing another person
administrator with the will annexed, was reversed on appeal and
letters testamentary directed to be issued to the executor upon his
qualifying and giving bond according to law. The opinion proceeded
upon the ground that the delay in taking out letters testamentary
had been waived by the mutual arrangement of all parties
interested, and it contained no intimation that the acts of an
executor, who never took out letters testamentary, could affect the
rights of any person interested in the estate who had not assented
to them.
In the present case, whatever effect the facts that the other
devisees knew that the executor was acting as such and made no
objection might have against those of full age, the minor devisees
could not be thereby estopped to assert their rights.
Page 125 U. S. 390
Letters testamentary issued to an executor upon his qualifying
according to law may relate back and legalize his previous tortious
acts. 1 Williams on Executors 269;
Priest v. Watkins, 2
Hill 225. Or an order of the court of probate appointing an
executor may not be subject to be impeached collaterally by showing
that he did not in fact qualify, and may of itself be sufficient
evidence of his authority without the production of letters
testamentary.
Vogel's Succession, 20 La.Ann. 81;
Piatt
v. McCullough, 1 McLean 69, 74.
But where, as in this case, the executor has never qualified nor
been appointed by the court and no letters testamentary have been
issued, we have found no decision under statutes like those of
Indiana that any disposition of the property by the executor is
valid as against persons interested who are not estopped by having
consented to it. In the absence of any decision upon the point by
the Supreme Court of Indiana, we are therefore not prepared to hold
that the release in question has any validity as an act done by
Abraham G. Barnett as executor.
2. The difficulties are quite as great in the way of holding the
release valid, considered as executed by Abraham G. Barnett in the
capacity of trustee under the will, distinct from his office as
executor.
In the first place, the will, after naming Abraham G. Barnett
executor and directing that he may act as such without giving bond
or taking out letters testamentary, provides that
"As executor, he shall have authority under this will to
proceed, as if he had letters testamentary, to execute the trusts
devolved on him as executor, as also those which may incidentally
arise in the execution of this trust as executor."
By this iteration of the words "as executor," the testator
clearly shows that he did not intend that in performing the usual
duties of an executor, he should act in any other capacity.
In the next place, it was not within the power of the testator
to defeat the provisions and the policy of the testamentary law of
the state by bequeathing personal property to a trustee without the
intervention of an executor. As was
Page 125 U. S. 391
said by Chief Justice Shaw, delivering the opinion of the
Supreme Judicial Court of Massachusetts:
"It is an established rule of law that all the personal property
of the testator vests in the executors for some purposes before
probate of the will, but to all intents and purposes, upon its
probate. This they take not merely as donees, by force of the gift,
as
inter vivos, but by operation of the rules of law
controlling, regulating, and giving effect to wills. A trustee,
therefore, who is but a legatee, can take only through the
executors. If a testator were to appoint no executor, or direct
that the estate should go immediately into the hands of legatees,
or of one or more trustees for particular purposes, such direction
would be nugatory and void."
Newcomb v. Williams, 9 Met. 525, 533. So, in the
earlier case of
Hunter v. Bryson, the Court of Appeals of
Maryland said:
"But suppose Bryson not to be created executor by the clause in
the will which has been referred to, and that the testator's design
was that the persons appointed should act literally as trustees
without taking out any letters testamentary or of administration.
The appointment is a nullity as far as the personal estate is
concerned, being an attempt to evade the provisions of our
testamentary system in a way which the law does not tolerate."
5 Gill & Johns. 483, 488.
3. We are then brought to a consideration of the question
whether the release can be upheld because of the authority vested
in Abraham G. Barnett as surviving creditor, under the settled rule
that one of two joint creditors or mortgagees, or the survivor of
them, may release the joint debt.
Penn v. Butler, 4 Dall.
354 [omitted];
People v. Keyser, 28 N.Y. 226. The case, so
far as affects this question, stands thus:
John H. Barnett and Abraham G. Barnett borrowed $8,000 of
Bissell, and lent $5,000 of it to Freeman, and thereby became, at
law as well as in equity, joint debtors to Bissell in the sum of
$8,000, and joint creditors of Freeman in the sum of $5,000.
Rudisill executed to John H. Barnett a bond, secured by mortgage,
conditioned to pay to him the sum of $5,000, describing it in the
bond as part of the sum of $8,000 borrowed by the two Barnetts of
Bissell, thus clearly identifying
Page 125 U. S. 392
the debt, which Rudisill's bond and mortgage were intended to
secure, as the $5,000 which the two Barnetts had lent to Freeman,
and which Freeman owed to them jointly. Rudisill's bond and
mortgage, therefore, although they ran to John H. Barnett alone and
could have been enforced at law in his name only, yet in equity,
having been made with the sole object of securing the payment of
the debt which Freeman owed to both Barnetts jointly, belonged to
them as joint creditors.
Batesville Institute v.
Kauffman, 18 Wall. 151.
Upon the death of John H. Barnett, the debt of Freeman was due
to Abraham G. Barnett personally as surviving creditor, with
authority as such to sue for and recover it, although he would, of
course, be bound to account to John H. Barnett's representatives
for half of anything that he might recover, and Rudisill's bond and
mortgage continued to stand as security for that debt, and,
although the legal title in this bond and mortgage vested in
Abraham G. Barnett as executor, yet the equitable interest in them
belonged half to him as executor and half to him personally. If he
had received from the mortgagor payment of the sum secured by the
mortgage, whether as executor or as surviving creditor, in either
case he would hold half of that sum to his own use, and half as
executor. So a valid release of the whole or part of the land
mortgaged, made by him, whether as executor or as an individual,
would bar him both in his official and in his private capacity, and
any substituted security received by him as a consideration for the
release would ultimately inure to the benefit of the same persons
-- that is to say one-half to his own benefit and the other half to
the benefit of those entitled under the will. In short, neither the
parties to whom nor the amount in which he would be liable to
account for anything received upon a payment or release would be
affected by the capacity in which he assumed to act. If he had
never been named as executor, a release of the debt by him, being
surviving creditor, would have been valid at law, and his release
of the mortgage, which was security for that debt, would have been
good in equity. There is no reason therefore which can influence a
court of equity why he might not,
Page 125 U. S. 393
as surviving creditor, release part of the mortgaged land from
the mortgage.
The two characters of executor and of surviving creditor being
united in the person of Abraham G. Barnett, the court, if he had
executed the release in his own name merely, without describing
himself as acting in either capacity, would presume that he acted
in the character which would make the release valid and effectual.
Yeaton v.
Lynn, 5 Pet. 224,
30 U. S.
229.
The form in which the release was drawn up and executed does not
affect the equities of the case.
It begins with the absolute and comprehensive words, "I hereby
release from any and all lien by reason of this mortgage." Then
follow a description of the land released, by range, township,
section, and quarter-section, and as that day conveyed by Rudisill
to Burgess, Zollinger, and Kamm, and the final clause, "Witness my
hand and seal as such executor, January 23, 1875." No executor had
been previously named in the release, or in the mortgage, on the
margin of the record of which the release was made. The release is
signed "Abraham G. Barnett, executor of the estate of John H.
Barnett, deceased."
When a person having title in property in different capacities
executes a deed in one capacity only and holds the consideration
received for the benefit of those entitled to it, a court of equity
at least will be slow to hold the deed invalid for want of a more
complete and formal execution.
In
Corser v. Cartwright, L.R. 7 H.L. 731, a man who was
one of two executors of his father and also the residuary devisee
of his lands, charged with the payment of his debts, made a
mortgage of the lands, reciting that he was entitled to them in fee
and not describing himself as executor. Lord Romilly, M.R., held
that this mortgage was not an exercise of the power vested in the
executors for paying the testator's debts, but was only a mortgage
of the beneficial interest of the devisee, and therefore
ineffectual against the testator's general creditors. But his
decree was reversed by the Lords Justices in Chancery, and their
decree was affirmed by the
Page 125 U. S. 394
House of Lords upon the motion of Lord Chancellor Cairns, who
said:
"What I find is this, that the estates with which your lordships
have to deal are clearly devised to, and the legal estate vested
in, the residuary devisee, who was also one of the executors. I
find him selling or mortgaging, and I find him, beyond all doubt,
able to sell and able to give to a mortgagee a good title to the
legal estate. I find that that legal estate is in his hands, and
therefore any money that is produced by the sale or mortgage of
that legal estate is subject to and chargeable with the payment of
debts and legacies, and that therefore the money coming into his
hands must be money which ought to be applied to the payment of
debts and legacies. But then I find that he himself is an executor
of the testator; that he himself is the person who ought to hold
assets impressed with the liability to satisfy debts and legacies.
I find, therefore, that assets which ought to be applied to the
payment of debts have come into the hands of an executor, and that
he has given a receipt for them. Therefore, on the one hand, the
mortgagees have got the legal estate, and on the other hand, they
have got a receipt from the proper person for money which ought to
be applied to the payment of debts and legacies. That being so, it
appears to me that their title is entire and complete."
L/R. 7 H.L. 740.
In
West of England Bank v. Murch, 23 Ch.D. 138, that
decision was followed and applied to this state of facts: one of
two brothers, partners in business, died leaving a will by which he
directed his debts to be paid and devised his real estate in trust
with power of sale, and appointed his widow executrix and trustee.
The widow and the surviving brother sold and conveyed real estate
of which the two brothers had been tenants in common, and which was
in fact partnership property, by deeds reciting that the brother in
his own right, and the widow as trustee under the will, were seized
of it in fee as tenants in common, but not stating that she was
executrix, or that the property was partnership property. This
conveyance was held to be valid, Lord Justice Fry saying:
"It is plain that as executrix she could sell the whole of
the
Page 125 U. S. 395
partnership property. . . . Then it is said that if she had
power so to do, yet by omitting to state in the deeds by which she
conveyed the freehold property that she was acting as executrix,
she precluded herself from asserting that she was acting in that
character. In my judgment, she did not. It must be borne in mind
that, as executrix, hers clearly was the hand to receive the
purchase moneys, and therefore those moneys came to the right hand,
the hand of the person whose duty it was duly to apply the assets
in satisfaction of the creditors of the deceased as well as of the
beneficiaries under his will. Moreover, whether she was acting as
trustee or as executrix, she was under an obligation to do the best
she could for the estate. Her fiduciary character was substantially
the same whether she was acting as executrix or as trustee. I think
therefore that I should be straining at a gnat if I were to hold
that the mere fact that she spoke of herself in the instruments as
trustee, and not as executrix, was enough to prevent the validity
of a transaction which, in her character of executrix, I hold that
she had the power of carrying into effect. . . . The legal estate
passed from her because she held it as trustee, and the money
reached the hands of the person who was bound to distribute it
among the persons entitled to it. I therefore overrule this
objection."
23 Ch.D. 151-153.
In the present case, the legal title, indeed, in the bond and
mortgage of Rudisill was in Abraham G. Barnett as executor, and
could not at law be released by him in any other capacity. But the
legal title in the debt, for which the bond and mortgage stood as
security and to which in equity they were incident, was in him as
surviving creditor. In equity, therefore, he had the right, as
surviving creditor, to release the mortgage in whole or in part,
and any consideration for such as release, whether received by him
as executor or as surviving creditor, would inure to the benefit of
himself and of the estate of his testator in equal moieties.
If he had received payment of the debt and given a receipt for
it as executor, he would have held the money half as executor and
half to his own use, just as he would have held it if he had
receipted for it in his own name only, and it cannot
Page 125 U. S. 396
be doubted that the addition "as executor" in the receipt would
not have prevented the payment from extinguishing the debt, and
consequently the mortgage by which it was secured.
The release which Abraham G. Barnett did execute was of part of
the land mortgaged, and in consideration of receiving a mortgage of
other land, the parties to the release and to the new mortgage,
acting in good faith and with no intent to defraud devisees or
other persons interested. The body of the release contains apt
words of release by him (without stating in what capacity) of the
land described "from any and all lien by reason of this mortgage,"
and he is described as executor in the
testimonium clause
and the signature only. Although he is described as executor in the
new mortgage also, a court of equity certainly could not hold that
mortgage to convey any interest to him, as executor or otherwise,
if the release for which it was the consideration was void.
Abraham G. Barnett was the person authorized to make the
release, and the consideration for the release came into his hands
for the benefit of the persons entitled to it. The interests of no
one were affected by the question in which of his two characters he
executed the release and received the new mortgage. Whether he
acted as executor or as surviving creditor, the fruits of the
transaction belonged in equity one-half to himself and one-half to
the estate of John H. Barnett.
If the whole debt had belonged to him alone, the description of
himself as executor in the release could not have prevented its
operating upon his interest in the debt and in the mortgage by
which that debt was secured. As the survivor of two joint
creditors, he had the same power (independently of any authority as
executor) to release the debt and the mortgage, as if he had been
the sole creditor. The release, therefore, notwithstanding the
superfluous description of the releasor as executor, was, by reason
of his being surviving creditor, binding upon the interests of the
representatives of the deceased creditor, as well as upon his own,
and upon this ground the
Decree is affirmed.
