Opinion
Decided June, 1880.
An indorser cannot appeal in his own name from the disallowance of a note exhibited by the indorsee to a commissioner appointed to examine and allow claims against an estate administered as insolvent.
PROBATE APPEAL. The plaintiff held against the deceased, John T. Gibbs, a note for ten thousand dollars, which he indorsed and delivered before its maturity to Marx Son. The estate was administered as insolvent. Marx Son presented the note to the commissioner, by whom it was disallowed; and the plaintiff appealed.
T. J. Smith, for the plaintiff.
Wells Burleigh, for the defendants.
Any creditor dissatisfied with the decision of the commissioner upon any claim by him exhibited may appeal therefrom. G. L, c. 200, s. 1. A creditor is one who has a right to require the fulfilment of an obligation or contract. 1 Bouv. Law Dic. 409. The maker of a note is not liable to the indorser and indorsee in separate actions at the same time. The indorsee is the legal owner of the note. Marx Son could enforce collection. Foss was not a creditor of the estate, and could not maintain an action against it. Little v. Ingalls, 13 N.H. 44. Even if the disallowance of the note by the commissioner revested its ownership in the plaintiff, he has no right to appeal, because he was not creditor when it was presented to the commissioner, and its disallowance was not a decision on a claim by him exhibited. His claim must have been in existence, capable of being exhibited during the life of the commission, and not subsequently created by operation of law upon the acceptance of the commissioner's report and the failure of another party to appeal. The appeal should have been taken in the name of Marx Son.
Appeal dismissed.
All concurred.