Banking Co. v. . Morehead , 116 N.C. 410 ( 1895 )

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. Devanev. Royal, 52 N.C. 426; Hailey v. Wheeler, 49 N.C. 157; Beatty v.Gingles, 53 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. Beatty v.Gingles, supra. The rule is not modified by the fact that the note is given, as in this case, by an executrix for money which the creditor knows at the time is to be used in payment of the debts of (413) the testator; but the law assumes that she consents to incur the risk of reimbursement out of the assets on her final settlement. This is unquestionably a liability governed by this general principle. The feme defendant is answerable in her individual capacity.

Affirmed. Cited: Alexander v. Alexander, 120 N.C. 474; Mitchell v. Whitlock,121 N.C. 167; Banking Co. v. Morehead, 122 N.C. 319, 325; S. c.,126 N.C. 279, 283.