Chouteau v. Suydam. at least one-half of the evil intended to be remedied entirely antouched and unprovided against. For the foregoing reasons I am in favor of affirming the judgment of the Supreme Court. COMSTOCK, Ch. J., and DENIO, J., dissented. Judgment affirmed. CHOUTEAU et al. v. SUYDAM, Administrator. Whether those who have executed a written instrument are bound, it not being executed by others named as parties, depends upon the circumstances, and these may be proved by parol. It rests upon the party who has executed and delivered the instrument to show that the delivery was intended to be in escrow. The execution of an agreement by the assignee of an insolvent, construed Where one describes himself as executor in a contract ostensibly made in APPEAL from the Superior Court of the City of New York. Action for an accounting. The trial was before a referee, by whom these facts were found: The plaintiffs are assignees of the claim of certain persons who will be designated the Ewings. On 15th May, 1852, a firm who will be styled the Suydams, who were insolvent, were indebted to the Mechanics' Bank of New York in a sum exceeding $23,000 upon their note, which had been indorsed by Ferdinand Suydam, deceased, and on which his estate was liable. The bank held, as collateral security, four treasury warrants or certificates for annuities paya Chouteau v. Suydam. ble to the Pottawatomie Indians, amounting to $22,162.58, the title to which had been derived from the Ewings. The defendant Whitney was the general assignee of the property of the Suydams, and the defendant Charles Suydam was the sole qualified executor of Ferdinand Suydam, deceased. There was pending at this date a suit brought by the Mechanics' Bank against the Suydams and the Ewings, in which William W. Corcoran had been appointed receiver of the money due on the Pottawotamie certificates, and he had received the same and invested it in bonds of the State of Missouri of the par value of $18,000, and bonds of the city of Nashville of the par value of $5,000. An arrangement was made, on or about the 15th of May, 1852, by which the Ewings were to pay the sum of $46,162.58 in full satisfaction and settlement of all claims against them of the Suydams, and the estate of Ferdinand Suydam, deceased. $24,000 was to be paid in a draft upon the plaintiffs. On the 18th day of May, 1852, an agreement in writing was made purporting by its terms to be between the Ewings of the first part and the Charles Suydam, executor, &c., and Whitney, assignee, &c., of the second part, in which, after reciting the facts in respect to the appointment of Corcoran and his sale of the Pottawatomie certificates, it was agreed that the suit in which the receiver had been appointed should be withdrawn; that the bonds then in his hands should be sold by the Mechanics' Bank; that if they produced any excess above $22,162.58 after paying the expenses of brokerage, &c., on sale, such excess should be paid to the Ewings, who on their part agreed that the bonds should produce the sum aforesaid or they would pay the deficit, and that such sum of $22,162.58 "together with the interest that has accrued thereon in the hands of said receiver since the same was received by him," was to belong to the bank and to the party of the second part. This agreement was signed by the Ewings and Charles Suydam executor of Ferdinand Suydam, but was not signed by Whitney. Subsequent to this agreement, Whitney, who had been nominated in the will but had not qualified as executor of Ferdi Chouteau. Suydam. nand Suydam, qualified as such, and he alone defended, Charles Suydam having died. There was an excess of the proceeds, above $22,162.58 and the interest which had been actually received by Corcoran as receiver. It appeared that certain coupons for interest upon the bonds had been detached or lost before they came into his hands. Whitney claimed to retain of the surplus enough to pay the whole amount of interest on the bonds after the time they came into the receiver's hand, but the referee allowed him only the amount actually received by Corcoran, and judgment was entered on his report accordingly; which was affirmed at general term onditionally upon the plaintiff consenting to certain modifications, reducing the amount of the judgment, which they did, and the defendant Whitney appealed to this court. Jeremiah Larocque, for the appellant. William Allen Butler, for the respondents. SELDEN, J. The first question which this case presents 18, whether the agreement executed on the 18th of May, 1852, by Charles Suydam, as executor of Ferdinand Suydam, deceased, of the one part, and by W. G. and G. W. Ewing of the other part, was obligatory upon the estate of Ferdinand Suydam. It is insisted by the defendant's counsel: first, that the agreement, having been executed upon one part by Charles Suydam alone, when upon its face it appears that it was also to be executed by Whitney the assignee, is incomplete, and therefore not obligatory upon any one; and secondly that, if valid as an agreement, it binds Charles Suydam personally, and not the estate of which he was executor. It is very well settled, that where a bond, a deed, or other written instrument is executed by a portion only of those who appear in the body of the instrument as parties, the question whether those who have executed it are bound, depends upon the circumstances under which the instrument was delivered. Those circumstances are open to proof by parol, and if it Chouteau v. Suydam. appears, that at the time of the delivery, by any party whose signature is affixed, anything was said indicating that such party did not intend to be bound unless other parties also signed, the delivery will be considered as not absolute, but in escrow merely. The fact that the instrument was intended to be delivered in escrow, may also be inferred from the face of the instrument, or the nature of the transaction, in connection with the circumstances surrounding the parties at the time of the execution or delivery. But it rests upon the party who has signed and delivered the instrument, to establish that the delivery was intended to be in escrow. The effect of these principles, when applied to the present case, is plain. No extrinsic evidence was offered to show that the agreement was not intended to be obligatory until signed by Whitney. We are left, therefore, upon this question, to the inference to be drawn from the transaction itself, and the circumstances attending it, so far as they appear in the case; and when it is considered that Whitney was to execute merely as the assignee of the firm of Suydam, Sage & Co., who were utterly insolvent, that inference plainly is, that the execution of the agreement by him, being considered as a matter of no moment, was voluntarily waived. The second objection is, that the agreement was binding only upon Charles Suydam personally, and not upon the estate of Ferdinand Suydam, of which he was at that time the sole acting executor. When it is sought to charge an estate with a contract made by the executor or administrator, two questions arise, viz.: 1. Was the contract intended and understood to be made by the executor, &c., personally, or in his representative character only and 2. If intended to bind the estate, was the contract such as could properly have that effect. In regard to the first of these questions, I am of opinion, that where the contract itself is ostensibly made in behalf of the estate, and relates exclusively to matters in which the executor or administrator has no personal interest, if the latter, in making the contract, describes himself as executor, &c., the presumption is, that he intended to bind the estate and not him Chouteau v. Suydam. self. This would be found in most cases to be in accordance with the facts, and such I think is the legal inference. In the present case, there is no pretence that Charles Suydam had any personal interest in the matter. The agreement was made exclusively in behalf of the estate which he represented, and by affixing to his signature the words "executor of F. Suydam," he indicated that it was the contract of the estate, and not his To say, that an agreement made in the just and proper execution of the trust reposed in an executor, if signed "A B, executor," is the party's own personal contract, while if signed "A B as executor" it would bind the estate alone, is to make a distinction which can never be generally understood, or conformed to in practice. own. Upon the question whether this contract was one which the executor could properly make with due regard to the interests of the estate, there can be no doubt. By the arrangement as a whole, the estate obtained a certain indemnity against a heavy responsibility, in lieu of an uncertain and litigated claim, to the fund in the hands of the receiver. The advantages to the estate were obvious, and the executor would have been wanting in fidelity to his trust, if he had failed to enter into the arrange ment. There is, I think, no necessity for resorting to the equitable doctrine of subrogation, to sustain the plaintiff's claim. It has been held, that an action at law will lie against an executor as such, and judgment may be taken de bonis testatoris, for money paid at the request of the executor for the use of the estate; although it is said that such an action cannot be maintained for money had and received, because it cannot be for the benefit of an estate that the executor should receive money to the use of other persons. The excess in this case over and above the stipulated amount belonged to the Ewings. So far, therefore, as such excess was applied to the satisfaction of the debt due to the bank, it was strictly money paid for the use of the estate, and where the law would imply a promise, it will cer tainly sustain one which is express. The objection, therefore, could only apply at most to the small balance of $292.32, paid |