Drexler v. McGlynn

Paterson, J. This is an action against the defendants as executors of the last will and testament of James M. Donahue, deceased, upon a promissory note indorsed by their testator September 10, 1889.

The note became due March 10, 1890. Donahue died on the third day of March, 1890, leaving a will in which the defendants were named as executors, and which was filed in the superior court on the eleventh day of March, 1890.

It is claimed that the estate is not liable because no proper notice of protest was given, but we think the point is not well taken. The notice was addressed to “Messrs. Peter J. Mc-Glynn and J. F. Burgin, Jr., administrators of the estate of J. M. Donahue, deceased,” and it was deposited in the post-office on the day the note became due. The Civil Code provides that a notice of dishonor may be given, in case of the death of the party otherwise entitled to notice, to one of his personal representatives, or if there are none, then to any member of his family, and if there be no family, it must be mailed to his last place of residence. (Sec. 3145.) Appellants contend that, inasmuch as the defendants had not been appointed by the court at the time the notice was given, they were not personal representatives within the meaning of this statute, and cases are cited holding that notice sent to a person afterwards appointed administrator of an intestate is insufficient. These authorities are not in point. While it is true that the appointment of an executor is only provisional, and requires the approval of the court for the purpose of administration upon the estate of the testator, it is also true that the law allows a man to appoint his executors subject to this approval, and treats them as entitled to the office until they renounce it, and unless for some reason they are incompetent the appointment makes them representatives of the estate “so far as relates to acts in which they are merely passive, such as receiving notice of the dishonor of a note.” (Shoenberger’s Executors v. Lancaster Sav. Inst, 28 Pa. St. 466.) It matters not that the person named in the will may never be actually appointed executor by the court— he may renounce the trust—but as he is the person to whom the testator has confided the administration of his estate, it is regarded as safe to entrust him with the notice. “It is not to [145]be expected that any person can ordinarily be found upon whom this duty (protecting the estate) will rest more strongly than upon one who is named as executor in the will.” (Goodnow v. Warren, 122 Mass. 82; 23 Am. Rep. 289; 3 Randolph on Commercial Paper, sec. 1245.) The reason for holding that a notice to one named in the will as executor is good is not applicable to the case of one who happens after the notice is given to be appointed administrator, because the latter is neither honorably nor in legal duty bound to do anything for the protection of the estate.