Morehead Banking Co v. Morehead

• Court: North Carolina Supreme Court
• Writing for the Court: AVERY
• Citation: Morehead Banking Co v. Morehead, 21 S.E. 190, 116 N.C. 410 (N.C. 1895)
• Decision Date: 12 March 1895
• Parties: MOREHEAD BANKING CO. v. MOREHEAD et al.

21 S.E. 190

116 N.C. 410

MOREHEAD BANKING CO.

v.MOREHEAD et al.

Supreme Court of North Carolina.

March 12, 1895.

Decedent's Estate—Note of Executrix—Personal Liability.

1. A decedent's estate is not liable for a note made by the executrix in her representative capacity for money to be and which was used in paying decedent's debts, the executrix being personally liable on the note.

2. The executrix takes the risk of being reimbursed the amount of the note out of the assets of the estate on her final accounting.

Appeal from superior court, Durham county; Winston, Judge.

Action by the Morehead Banking Company against Lucy L. Morehead, personally and as executrix, and others, on a promissory note. From a judgment dismissing the action as to Lucy L. Morehead, executrix, the plaintiff appeals. Affirmed.

John W. Graham and Boone & Boone, for appellant.

Fuller, Winston & Fuller, for appellees.

AVERY, J. An executor cannot, by any contract of his, fasten upon the estate of his testator liability for a debt created by him, and arising wholly out of matters occurring after the death of the testator. Devane v. Royal, 7 Jones (N. C.) 426; Hailey v. Wheeler, 4 Jones (N. C.) 160; Beaty v. Gingles, 8 Jones (N. C.) 302; Tyson v. Walston, 83 N. C. 90; McLean v. McLean, 88 N. C. 394. Where an executor executed a promissory note as evidence of such debt, and signs it, and renewals of it, in his fiduciary capacity, the words, "As Executor, " will be rejected as surplusage, and the contract interpreted as if made in terms by him individually. Beaty v. Gingles, supra. The rule is not modified by the fact that the...