*45The opinion of the court was delivered by

This case, as it seems to us, does not depend upon any peculiar probate statute of either Maine or Vermont, but is governed by the law applicable to negotiable paper.

The action is upon a promissory note signed by the defendant, and payable to the testatrix, Mrs. Cox, or bearer, which note Mrs. Cox in her lifetime caused to be handed to Mrs. Stearns to collect and use the avails as she might need. The defendant paid the note to Mrs. Stearns while she held it, but did not pay it until after the decease of Mrs. Cox. The note, having been taken up, and having been paid to the actual bearer, prima fade is extinguished.

The burden is upon the plaintiff to impeach this payment, and this burden he assumes by undertaking to show, first, that Mrs. Stearns, though the actual, was not the legal holder of the note, when the defendant paid it, and, secondly, that the defendant knew this or had reason to know it. In other words, the plaintiff claims that, upon the facts shown in this case, the defendant ought, in the exercise of good faith and the requisite prudence, to have refused to pay this note to the actual holder, Mrs. Stearns. To establish this, the plaintiff relies upon the fact that, while Mrs. Cox, shortly after the execution of the note, caused it to be delivered to Mrs. Stearns, with this right to collect it and use the avails, she did not give it to her absolutely, but only the avails as she should collect them, she (Mrs. Cox) retaining the title to the note during her life. This, it is insisted, amounted simply to such a grant of authority, or power of attorney, as would be revoked by the death of Mrs. Cox. It is to be noticed at the outset, that the case does not show that Mrs. Stearns ever had any actual authority to act as an agent or attorney of Mrs. Cox, in the collection of this note. The note was given her to collect as she might need it herself and to use the avails herself, not to collect for Mrs. Cox and to pay over to her. If Mrs. Stearns had no authority as agent or attorney of Mrs. Cox, of course there was no such authority to be revoked by the death of Mrs. Cox. When Mrs. Cox delivered this note, which was payable to bearer, to Mrs. Stearns, and invested her with the right to collect and *46use it, sbe transferred the note, and it was none the less a transfer because limited in its terms. If the note had been payable to the order of Mrs. Oox, and Mrs. Cox had written and signed an indorsement in terms directing the maker to pay it to Mrs. Stearns or her order, when presented, that indorsement would, so far as the defendant was concerned, have expressed just what in law was effected by the delivery of the note payable to bearer. The' indorsement or transfer of a negotiable note, by no means constitutes an agency. It is an assignment. If there was an understanding that the title to the note, until paid, was to remain in Mrs. Cox, or even if there was an express understanding that at Mrs. Cox’s decease it was to bo surrendered to her executor, if uncollected, it is still an assignment, but an assignment with a limitation. The limitation, not appearing upon the note itself, could in no way affect the defendant while lie is ignorant of it. The .note having been put in the hands of Mrs. Stearns as an assignee, with a right to collect it and use its avails, he is not bound to know or suspect that there is a limitation to that right. If this assignment was limited, it was by virtue of some act of the parties which the defendant was not bound to understand, and not by virtue of some law which he would be presumed to understand.

The case does not show that the defendant was in fact over informed of any limitation to the effect of the transfer, nor that the executor over notified him not to pay the note to Mrs. Stearns, although he had opportunity to do so. It is true, that the defendant knew of the will of Mrs. Cox, and, by the terms of that will, the legacy to Mrs. Stearns, though not expressly naming this $600 note, would cover it. It is suggested, that the defendant ought from this to have taken notice that Mrs. Cox claimed an interest in the note; but the natural inference from the terms of this legacy would be quite different, when viewed in light of the fact that the defendant was aware that the note had been in the hands of Mrs. Stearns for a year or more, previous to the decease of Mrs. Cox. The defendant might fairly conclude that the testatrix had become her own executor, so far as this note was concerned; and had delivered it before her death. Again, the maker of the note, seeing it, sometime after the testatrix’s decease, in the *47bands of tbe very person to whom it was bequeathed, would have every reason to suppose it was there with the consent and approval of the executor; and even if the defendant had understood that the note belonged to the estate at the decease of Mrs. Cox, he would, after seeing the will as ho did, naturally anticipate that he would bo called upon to pay it to Mrs. Stearns, to whom it was bequeathed, and, on her presenting it to him, he would have no reason to suspect her title to it, or her right to collect it.

The pro forma judgment is reversed, and judgment is rendered for the defendant.