treated as payments by the parties respectively and each was charged with interest on the sum so received by each, and this fund was invested and divided on that basis, so as to make what had previously been received equality of distribution.

Held, Error; that whatever equitable lien either of the original devisees may have had upon the shares of the others, it did not absolutely attach to the real estate or follow it into the hands of any heir, devisee or grantee.

The executors of N. brought an action to set aside certain transfers and conveyances made by him. They entered into a contract with their attorney in consideration of his services to give him, in addition to costs, one-half of any recovery, and to give effect to the agreement they assigned to M. one-half of any recovery. M. assigned the claim and his assignee now claims a lien upon the fund.

Held, That no lien was created upon the estate by the agreement, as the executors had not power to make such an agreement; that the claim is so extraordinary and objectionable that even if the agreement had been valid it could not be enforced in this action.

After a sale in a partition suit, when a referee has been appointed to take proof of the interests of the parties and claimants in the fund, and his report has been excepted to as to a certain claim, which exceptions were overruled and the report confirmed by the Special Term, and such order of the Special Term affirmed by the

N. Y. SURROGATE'S COURT. In re estate of Fida C. Sharp, deceased.

Decided June 29, 1887.

An executor or administrator cannot, in general, lawfully embark in trade the assets of his decedent's estate, even though in adopting such a course he may verily believe that he is acting for the best interests of the legatees, or distributees and the creditors. He has, as a rule, no power to charge the assets in his hands by contracts originating with himself. Such contracts will bind him personally, but will not bind the estate committed to his keeping.

When a testator has authorized his executor to employ the remainder of the estate, after payment of debts, and funeral expenses, in some legitimate business, a person to whom the executor has incurred a debt in carrying on such business cannot intervene as a creditor of the estate in a proceeding for a settlement of the excutor's account. Even apart from any special authority conferred upon him by the will, an executor is not bound, as of course, at the death of the testator to make immediate conversion into money of the assets of the estate which were then involved in trade. He is at liberty within reasonable limits to make purchases and liabilities, if, under the circumstances then existing, the course seems to be demanded by the best interests of the estate. Whether he has exceeded such limits can only be determined by investigation, and a motion to strike from his account previous

cease. That, on the contrary, only that portion of the estate in excess of the sum necessary for the satisfaction of the debts and the funeral and testamentary expenses was made applicable by the will to the purposes of the "legitimate business" which the executor was instructed to carry on. That no other portion of the es

the best interests of the estate. That whether he exceeded these reasonable limits could only be ascertained after investigation and that therefore the reference

should proceed.
Ordered accordingly.
Opinion by Rollins, S.

COSTS.

which the executor had contracted since his wife's decease. 10 Ves., 110; 3 Madd., 138; 1 M. & K., 116; 4 DeG., M. & G., 744; 28 Ohio St., 231; 27 N. J. Eq., 146; 1 Beav., 185.

That the judgment creditor's application to intervene should be denied.

That the case was not ripe for a decision of the motion to strike out of the account such items of debit and credit as the executor had seen fit to insert concerning his conduct of the business above referred to. That it was only after a hearing upon the objections interposed by the several parties in interest that a proper determination in this regard could be arrived at.

That even apart from any special authority conferred upon him by the will, the executor was not bound, as of course, at the death of the testatrix to made immediate conversion into money of the assets of the estate which were then involved in trade. That he was at liberty within reasonable limits to make purchases and to incur liabilities, if, under the circumstances then existing, that course seemed to be demanded by

TERM. FIRST Dept.

John S. Stubbs et al., exrs., applts., v. Edward C. Ripley et al, respts.

Decided March 31, 1887.

Under an order allowing a respondent to print such papers as had been improperly omitted, such papers only as were used on the original hearing can be printed; and where on taxation the opposing affidavit alleges that none of certain papers charged for were used or submitted on such hearing the charge cannot be allowed.

Appeal from order readjusting defendants' disbursements.

On an appeal by plaintiffs from an order it was claimed that certain papers had been omitted from plaintiffs' papers. An order was granted allowing respondents to print such papers as had been improperly omitted. On taxation of costs defendants in their disbursements claimed $90.95 for printing such papers. In the affidavit of defendants' counsel he states that he did not by printing the papers add any more than was made a part of the papers on the hearing before the Special Term; while the affidavit of plaintiffs' counsel states that not one of the papers for which $85.00 was charged were used or submitted at said hearing.

The clerk struck out the sum of $85.00, allowing the balance. On appeal to Special Term the $85.00 was allowed and added to the clerk's allowance.

N. J. Waterbury, for applts. John F. McIntyre, for respts. Held, Error. It was clearly the effect of the direction given by the General Term that no more papers should be printed than were referred to in the order appealed from. Liberty was not given and was not intended to be given to counsel to print any papers that he might be disposed to add to the papers on the appeal. On this state of the proof it cannot be said that respondents were entitled to charge in the bill this sum of money as a part of the disbursements on the appeal. There was to that extent a failure of proof. Order reversed, and taxation of clerk affirmed.

Opinion by Daniels, J.; Van Brunt, P. J., and Brady, J., con

cur.

PROMISSORY NOTES. EVI

DENCE.

N. Y. SUPREME COURT. GENERAL

TERM. FOURTH DEPT. Frederick M. Willson, respt., v. Eli B. Law et al., exrs., applts.

Decided April, 1887.

In an action on a promissory note by a bona fide holder thereof against the executors of the maker, though the evidence is principally to the effect that the signature is in the handwriting of the deceased, it is not error to submit to the jury the question whether it was placed there by some one authorized by him to sign.

One who in consideration for a transfer to him of a promissory note satisfies a mortgage against the payee and cancels debts due by him is a bona fide holder of the

note.

Declarations made by the payee long prior to the sale of the note by him are not competent against the title and ownership of his transferee.

Appeal from judgment entered on verdict and from order denying motion for new trial on the minutes.

Action on a promissory note brought against the executors of alleged maker thereof. Plaintiff produced and read in evidence a note alleged to have been made by defendants' testator for $1,100, dated April 7, 1874, payable to one E. ten years after date. Evidence was given tending to prove that deceased made and delivered the

note, and also that he repeatedly, in his lifetime, admitted its validity and said it was "all right.” Defendants gave evidence tending to show its invalidity and that it was not executed by deceased.

The court submitted to the jury the question whether it was made by deceased by writing his own signature, or whether deceased's signature was placed on the note by one authorized by him to sign. E. L. Stevens, for applts. Sayles, Jenkins & Devereaux, for respt.

Held, That, although the principal evidence of plaintiff was to the effect that the signature was in the handwriting of deceased, it was still the right of plaintiff to have the jury pass upon the question as to whether deceased had not authorized another to write

his name to the note, and evidence tending to show that deceased said the note was "all right" bore upon that question, and the trial judge committed no error when he presented that aspect of the case to the jury.

That production of the note on the trial by plaintiff gave rise to the presumption that he became the owner of the note before its maturity, and entitled him to stand upon that presumption until it was sufficiently overcome by proof.

Defendants called S., who testified that six or eight years before he purchased the note of the payee, who was indebted to him, and that in part payment he executed a satisfaction of a real estate mortgage of said E. for $200; that he agreed to pay over any surplus, if any over his advances to and debts against E.; that E. pledged that surplus to W., plaintiff's father, and thereafter W. and S. transferred their respective interests in the note to plaintiff, who agreed to pay whatever was due to S. in case of a recovery. Defendants called one D. and sought to show by him that at an interview with E. in 1874 E. offered to sell the note for $350, and also that E. got his mother to secure a debt to D. to get the note out of his hands. The court ruled that the declarations of D. were not competent and excluded the evidence.

Held, No error. The declarations of E. made long prior to the sale of the note to S. were not competent evidence against S.'s title or the title and ownership of

his transferee, plaintiff. 7 Hill, 361; 40 N. Y., 226. When S. parted with the mortgage and debts he held against E. for the note he became a holder before the maturity of the note for value.

Phoenix Ins. Co. v. Church, 81 N. Y., 218; Huff v. Wagner, 63 Barb., 215, distinguished.

It appeared that E. and deceased had a settlement in the spring of 1874 and defendants offered to show the amount that was past due and the arrangement that was Imade with deceased to take his note for half. The court held that the whole title to the note was in plaintiff, and that he stood in the position of a bona fide holder before maturity, and that the evidence was inadmissible.