The amended special plea sets up no legal defense to the action on the note, even if it was well pleaded. A surrender by the widow of the payee of the notes, and taking the note sued on to herself, would be good and binding on the appellant for quo ad hoc, she may be regarded as an executrix de. son tort. Whatever is honestly done by one acting in that character, and not contrary to law, is binding between the parties. A settlement made in good faith with such an executor is valid. Bacon’s Abr., Executors and Administrators, 27 ; Hawkins v. Johnson, 4 Blackf. 21.
But there is another ground on which her title may be based. The plea does not allege there were any children of the marriage, or creditors, and we will intend therefore, there were none. The widow then, is the heir to all the personal estate of the intestate, choses in action included. Being such statutory heir, her right to the notes is unquestioned, and her surrender of them and taking the note sued on in place of them, cannot be disputed.
There being other counts in the declaration besides the special count on the note, and the plea of nil debet having been pleaded, it was error for the court on overruling the demurrer to the special plea, to give judgment in chief, and assess the damages. The issue presented by the plea, should have been tried by a jury, and the damages assessed by them.
For this error the judgment is reversed and the cause remanded for further proceedings, in conformity to this opinion.
Judgment reversed.