Note of Executor to Pay Debts of Testator — Personal Liability of Executor — Knowledge of Creditor.
1. Where an executor executes a note in his representative capacity for money borrowed and used for the purpose of paying debts of the testator the estate is not liable, but the executor is personally liable therefor, and this is so notwithstanding the fact that the lender knows for what purpose the money was borrowed and how it was used.
2. In such case, the executor takes the risk of being reimbursed the amount of the note out of the assets of the estate on the final accounting.
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, 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.