FIFTH DEPARTMENT, JUNE TERM, 1895. [Vol. 88. that she did on the same day duly execute her will in accordance with said agreement and delivered the same to the plaintiff; that she died August 23, 1894, leaving only the said property and the produce and income of the same, and that the defendant Hanford has filed with the surrogate of Monroe county his petition, reciting that a few days before her death Mrs. Cobb made another will, dated August 18, 1894, whereby she attempted to make a different disposition of her property, in which will she named the defendant Hanford as the executor thereof and constituted and appointed him as trustee of an undivided half interest in the property for the plaintiff. The plaintiff asked for judgment; that the defendant Hanford be enjoined from proving said last will; that the will of 1881 be decreed and adjudged to be the irrevocable last will, and, as such, entitled to probate, and that the plaintiff be adjudged to be the owner of said property. The defendant Hanford demurred to the complaint on the ground that it did not state a cause of action against him. It is conceded by his attorney that if the facts pleaded be true the plaintiff will have, after the will is probated, a cause of action against all of the defendants except Hanford, and will have a good cause of action against him in his official capacity as executor, so that the question presented is as to whether there is a cause of action stated in the complaint against Hanford personally. The plaintiff unquestionably had such a right in this property under the agreement by which his wife became possessed of it, that if she had attempted to convey or incumber it in her lifetime she could have been restrained from so doing by this plaintiff. Such an attempt would have been a wrongful interference by her with his property, because she never acquired from the plaintiff the right to convey away the property either by deed or will. It is alleged in the complaint that the defendant Hanford is making such an attempt in the name of the testatrix and by her authority, and if he should succeed she would throw a cloud upon the plaintiff's conceded right and title to the property and place the same in his own custody wrongfully, and would create a charge and incumbrance upon the same in his own favor to the injury of the plaintiff's rights. It is conceded that, as soon as he had completed the wrongful act by proving the will, an action by the plaintiff would lie against him in his official capacity Hun.] FIFTH DEPARTMENT, JUNE TERM, 1895. as executor to declare wrongful and illegal all that he may have done, and to set aside such probate and adjudge the plaintiff to be the owner of the property, but until this last will has been actually proved and Hanford has been appointed executor thereof, it is claimed that no action will lie against him. This position, which would be absurd if applied to a contract, a deed or a mortgage, is claimed by respondent to apply to a will, because of its exceptional and peculiar character, and that courts of equity are powerless to deal with wills as they do with other instruments. It is not contended but that Mrs. Cobb could have been herself enjoined from executing the second will, but it is claimed that, having in fact executed it and assumed to revoke the former will, her last will must be allowed to go to probate. The law is administered as well for the prevention as for the redress of wrongs, and it would seem upon principle that courts should possess as full power and authority to prevent such an attempt or threatened wrongful act as to render compensation for the wrongful act when committed. It is true that the plaintiff in his complaint asks to have the last will adjudged fraudulent and void, and that the first will be proved and established. That, however, is not all the relief asked for. The plaintiff is not to be denied the relief to which he is entitled, for the reason that he has claimed too much in his complaint. The principal question here presented is, whether the defendant Hanford can be prevented from placing a cloud upon the plaintiff's conceded and unquestionable title to the property in question, and from creating a charge thereon, and from taking the same into his own custody and control against the consent of the rightful owner, and from raising an apparent, illegal and wrongful barrier against the right of the plaintiff to enforce the lawful and binding contract set out in the complaint, or whether the plaintiff must wait until the wrongful acts are committed before he can obtain relief. It is the contention of the respondent's counsel that the plaintiff's complaint asks this court to take cognizance of a question which exclusively belongs to the Surrogate's Court. It is the policy of this State to commit to the courts of probate the decision of questions arising upon the execution of alleged wills, and it is only in exceptional cases that FIFTH DEPARTMENT, JUNE TERM, 1895. [Vol. 88. courts of equity will assume to interfere. (Anderson v. Anderson, 112 N. Y. 104.) We do not understand that the purpose of this action involves the consideration by the Supreme Court of any question which can arise upon the probate of a will. The questions here for adjudication precede any action which can take place upon the probate of the will. The court is asked to enforce a legal contract made by the testator, which if enforced will prevent the presentation of the will to the Surrogate's Court for probate. It is the contention of the plaintiff that Mrs. Cobb did not possess the power legally to dispose of the property in question by the second will; that in attempting to do so she was guilty of a fraud upon her husband's rights, and that the second instrument never became a will, and, hence, that the former will was never revoked, and is the one that should be presented to the surrogate for probate. The defendant claims that if the plaintiff has any cause for action it is against him in his official capacity as executor and not against him individually. Until a will is admitted to probate the person named therein as executor is not vested with power to act as such. Letters testamentary may never be issued to him. Having been named in the will as executor he is authorized by the Code of Civil Procedur to offer the will for probate; this he can do, although he may not intend to accept the letters. The defendant Hanford, in addition to being designated as executor, is made trustee of an undivided half interest in the testatrix's property for plaintiff's benefit. We see no reason for holding that he is not individually a proper party defendant in such an action. We are referred to many authorities bearing upon the questions presented for our decision, but none of them seem to be decisive of the questions before us. Although they are not free from doubt we incline to the opinion that a good canse of action was stated in the complaint against the demurring defendant individually, and that the interlocutory judgment appealed from should be reversed, but with leave to the defendant to interpose an answer within twenty days. BRADLEY and WARD, JJ., concurred; WERNER, J., not sitting. Interlocutory judgment reversed and demurrer overruled, without costs, with leave to the defendant to answer within twenty days. Hun.] FIFTH DEPARTMENT, JUNE TERM, 1895. WILLIAM H. SMITH, Appellant, v. ABIJAH WESTON, Respondent, Accommodation indorser· - the renewal of a note by the maker is notice to the creditor of the fact a partner indorsing for accommodation — estoppel. Where a creditor takes from his debtor, in renewal of an existing note made by him, a new note already indorsed, it is notice to the creditor that the indorsement upon the new note is for the accommodation of the maker and that no consideration was received therefor. Where a partner indorses the firm name for accommodation, and such act is not done in the course of the firm business, and the holder has notice of the nature of the indorsement, he cannot recover against the firm. No estoppel can arise against a partner, from the fact that he was aware that another partner was indorsing the firm name for accommodation, where it appears that the former remonstrated against the practice on every occasion and finally dissolved the firm because it was continued. APPEAL by the plaintiff, William H. Smith, from a judgment of the Supreme Court in favor of the defendant Abijah Weston, entered in the office of the clerk of the county of Cattaraugus on the 12th day of February, 1894, upon the dismissal of the complaint directed by the court after a trial at the Cattaraugus Circuit. Charles S. Cary, for the appellant. J. H. Waring, for the respondent. LEWIS, J.: The action was brought against the defendants as second indorsers upon a promissory note made by George Van Campen & Sons, for the sum of $2,000, payable to the order of J. K. Van Campen, administrator, etc. It was indorsed by the payee, who was a member of the firm of makers, and at his request William W. Weston, one of the firm of Weston Brothers, indorsed thereon the firm name of Weston Brothers. Abijah Weston alone defended. The indorsement of the defendants' firm name was for the accommodation of the makers and not in the course of the partnership business, and was made without the knowledge or consent of the respondent, who was at the HUN-VOL. LXXXVIII. 4 FIFTH DEPARTMENT, JUNE TERM, 1895. [Vol. 88. time a member of said firm of indorsers. The payee, J. K. Van ` Campen, after obtaining such indorsement upon the note, transferred the same directly to the plaintiff in renewal of another promissory note of a like amount made by the same makers and indorsed in like manner. There was no substantial conflict in the evidence, and at its close plaintiff's counsel stated to the court that in his opinion there was no question for the jury and he asked for a direction of a verdict for the plaintiff. IIis motion was denied, and thereupon defendants' counsel requested the court to direct a verdict for the defendant, which the court did, and the plaintiff duly excepted. The effect of this request by both parties for a direction of a verdict was to submit the questions of fact for the decision and determination of the court without a jury. (Thompson v. Simpson, 128 N. Y. 283.) The firm's name having been indorsed upon the note by William W. Weston for the accommodation of the makers, and not in the course of the partnership business, Abijah Weston was not liable upon it if the plaintiff was aware of the facts at the time he took it. Taking the note directly from the makers in renewal of a loan previously made to them, was evidence to the plaintiff that the defendants' indorsement was for the makers' accommodation and without consideration. (Nat. Park Bank v. G. A. M. W. & S. Co., 116 N. Y. 281–293.) It is claimed by the appellant that the defendant should be estopped from interposing the defense for the reason that he was aware his brother William W. had on many prior occasions used the firm name in like manner. There was evidence tending to show that the defendant William W. had so indorsed the firm name on prior occasions without the consent of the other partners, and that knowledge thereof had from time to time been communicated to Abijah. Abijah testified that he had known that his brother had thus used the firm name, but that on every occasion when the information came to him he remonstrated with his brother for so doing and threatened to dissolve the firm if the practice was persisted in, and that William on every occasion promised that he would not repeat it, but that he violated his promise, and the defendant finally caused a dissolution of the firm in consequence thereof. It was not shown that the plaintiff knew at the time he discounted the note of these former indorsements of the defendants' |