TRUSTEES AND GUARDIANS AS PARTIES TO COMMERCIAL PAPER. In general trustees and guardians cannot issue any bill or note which will bind the estate they represent, though issued in their representative capacity. By attempting to do so they bind themselves person ally. (Robertson v. Banks, I Smedes & M., 666; Conner v. Clark, 13 Cal., 168.) A note or bill made payable to a guardian or trustee cannot be endorsed away by the guardian for his own private debts, the indorsec taking the paper in every such case charged with the trust. (Baughn v. Schackelford, 48 Miss., 255.) Other cases hold that in the hands of a bona fide holder without notice other than that of the character of the paper, the paper will be free from the trust. (Thorton v. Rankin, 19 Mo., 193.) The executor or administrator of an estate cannot issue commercial paper in his representative capac ity to bind the estate. (Curtis v. Bank, 39 Ohio St., 579; Lynch v. Kirby, 65 Ga., 279.) Neither can he accept a bill drawn on a claim against the estate, and if he does so he will bind himself personally (Wisdom v. Becker, 52 Ill., 342), in whatever way the signature is written. A note by an adminis trator in settlement of a debt of the estate will not discharge the obligation unless accepted as absolute payment of the original debt. (Verger v. Foote, 48 Miss., 62.) He may limit his personal liability by making the note payable out of the assets of the estate, but this destroys the negotiability of the instrument because payable out of a particular fund.
There must be some new consideration for the promise of the executor or administrator if he is to be bound personally, but a consideration is pre sumed from the fact that he has assets of the estate in his hands when he made the paper. This pre sumption may be rebutted, and then in case no other consideration appears the personal repre sentative will be liable only to the amount of the assets in his hands belonging to the estate. (Walker v. Patterson, 36 Me., 273; Rittenhouse v. Ammerman, 64 Mo., 197.) The executor's note in the hands of bona fide holders without notice will be enforceable regardless of the consideration. (Bank of Troy v. Topping, 13 Wend., 273.) A bill or note which was payable to the decedent in his life time should be treated by the represent ative as other personal property, and suit should be brought in his representative capacity. When the note is payable to the executor or administrator as such, he may sue on it in his own name or in his representative capacity. The personal represent ative may transfer or indorse the paper of the estate, but in the case of indorsements unless he exempts himself he will become personally liable as an indorser. A note payable to the decedent may be indorsed by any one of his representatives, while if made payable to his representatives, all must join in the indorsement. The indorsement does not pass title unless there is a delivery of the paper. (Tiede man, Corn. Pap., Sec. 148.) It is a general rule of law that all executory contracts to be enforceable must rest upon a valuable consideration. And this rule applies to negotiable instruments as regards the immediate or original parties to the instrument. By the common law, and now quite generally, it is presumed that every negotiable instrument was given upon a valuable consideration, and words acknowledging receipt of consideration are not essential to the validity of the paper.