Branch Bank at Mobile v. Hallett , 12 Ala. 671 ( 1847 )

ORMOND, J.

This case doe's not come within the case just decided, where the parties to this suit are reversed, supra.That decision proceeds upon the hypothesis, that the personal representative, when he received notice of the dishonor of the note, and was informed the estate was looked to for payment, could have paid the note; or in other words,that it was in law a presentment to him of the claim for payment.

But an executor, in this State, does not derive his authority to act from the will, but by the performance of those 'acts,which are made a prerequisite to his obtaining letters testamentary — by taking the oath required by law, executing-bond, &c. Until these conditions are performed, he can do> no act as executor, unless it be such as is merely conservatory of the estate. It is very clear he can do no act, which would charge >the estate, and it follows necessarily, that he cannot be the means, or instrument, through whom a charge against the estate is predicated. If he could not pay the debt on presentation, the presentment to'him for payment must be a nugatory act. This point was determined in Cleveland v. Chandler, 3 Stewart, 489, where it was held, that an executor could do no act which would charge the estate, before his qualification as such under the statute. We are all of the opinion, that the notice in this case was not a presentment to the executor, within the meaning of the statute of non-claim.

Let the judgment be affirmed.