ADMINISTRATORS.

[Cuyahoga Circuit Court,

December 11, 1897.]

Hale, Marvin and Caldwell, JJ.

#### W. L. West, Admr., v. J. J. Dean.

Administrator has no Authority to Purchase Property eor an Estate and Upon doing so is Personally Liable.

An administrator has no authority, and it is a violation of his duty, to buy property for an estate, even though he may think it will be, or though it may prove to be, to the advantage of the estate. And for a purchase so made, the administrator is personally liable and a judgment against him thereon, though he is named as administrator, amounts to a personal judgment only.

Error to the court of common pleas of Cuyahoga county.

Marvin, J.

The case of W. E. West, Admr., v. J. J. Dean, comes here upon a petition in error.

A suit was brought in the court of common pleas by Dean, the title of the case as given in his petition being “ J. J. Dean v. W. E. West, administrator of the estate of John Glenn, deceased.” The petition avers that West is the administrator of the estate of Glenn ; that Dean was the owner of certain personal property; that Glenn, whose estate was being administered by West, had a chattel mortgage upon that property; that West purchased the interest of Dean in the mortgaged property, agreeing to pay therefor “ as administrator of the estate of John Glenn, deceased,” the sum of fifty-two dollars. It avers that such payment has not been made, and prays for a judgment against said defendant, for that amount with interest.

Judgment was rendered in the court of common pleas, in these words: “It is, therefore, considered that said plaintiff recover of said defendant his said damages and also his costs of suit. • Judgment is rendered against said defendant for his costs herein.”

That judgment was taken upon default, and the error complained of is that the petition stated no facts which warranted the judgment; that everything being true as stated in the petition, there was no ground for the judgment.

Two questions are here involved; one as to whether there could be a judgment upon that petition, against *West as administrator of the estate of Glenn.*

West promised to pay, the petition alleges, “ as administrator,” the sum of $52.00 for the interest of Dean in thermortgaged property. And, on the part of the defendant here, — the plaintiff below, — it was urged that having made that promise “ as administrator,” and having failed to pay, judgment could be rendered against him *as*administrator, that it is *798fair to suppose the administrator regarded the buying in of the mortgaged property as the most advantageous manner of collecting the debt secured by the mortgage, and that, if it were such, then he might bind the estate to pay the $52.00. . *

It seems to us that there is a mistake in supposing that the administrator may bind the estate to pay money for the purchase of any such property.

I think there is a very general misunderstanding as to the duties of an administrator.

It is the business of the administrator of an estate to convert the personal property into money, and to pay the debts, and to distribute what is left, and it is no part of his duty, — not only no part of his duty, but a violation of his duty, to undertake to buy property for the estate even though he may think it will turn out to be to the advantage of the estate — and even though it does so turn out.

Suppose, after this property had been purchased by the administrator, it had been destroyed by fire or otherwise, immediately, is it possible that it can be said to have been the property of the estate when thus destroyed, — I do not mean to say “ the property of the estate,” — I recognize that an estate never owns anything, — it is the thing owned — but is it possible that we could say it is a part of the estate, if it had been thus destroyed? The estate of a decedent is that which he owned at the time of his death, and no property, thereafter purchased by his personal representative or by any other person, ever becomes a part of such estate.

Our own Supreme Court have said, in the Lucht, Admr., v. Behrens, 28 O. S., 231, that an administrator, not authorized by the will of the testator to do that, cannot carry on a business for or of an estate, and incur debts which shall bind the estate ; and gives reasons why that may not be done; liabilities may be incurred; an executor or admidistrator may make a mistake in thinking that he is doing what is advantageous to the estate; and at the conclusion of the opinion, this language is used:'

> “To allow personal representatives of estates to go beyond this, and, without authority of law, or under the will, to embark the assets of an estate in trade or business, however well-intentioned they may be, and thereby subject the estate to all the hazards of the venture, would encourage that which it has been the special policy of the law to prevent — the employment of trust property in any other mode than is clearly authorized. For aught we know (for the court refused to hear evidence on the subject from the defendant) this well-meant endeavor to preserve the business of the testator for his sons, while paying the debts and supporting the family out of it, may have been disastrous; and if this judgment stands and is collected, it may defeat the express provisions of the will.”

It will be observed that the court does not say the business turned out disastrously, but that it *may*be disastrous, and the very fact that it may. so turn out establishes that the administrator or executor must not so invest the money, even though he thinks it will turn out for the best interest of the estate.

In McBride v. Brucker, Admr., 3 Ohio Circ. Dec., 7, the court hold that the administrator can not contract a debt for attorneys’ fees which can be recovered out of the estate. He may pay attorneys’ fees that are necessary in the administration of the estate and he, will be allowed, in his account filed in the probate court, for proper and suitable fees paid to *799the attorney, but he can not bind the estate by a promise that out of it shall be paid attorneys’ fees, everi though it is proper that an attorney shall be employed.

The same is held in several other states, if not in all of them.

Woerner, in his American Law of Administration, sec. 356, says:

> “ It is a well recognized principle that if liabilities contracted by the personal representative, although for the benefit and in the interest and behalf of the estate, it is not liable to creditors. Disbursements, reasonable in amount and for services necessary in the proper discharge of the duties imposed upon them, will constitute a charge in favor of the executors and administrators against the estate although their allowance should leave no surplus to pay creditors of the deceased.”

The case of Dailey v. Dailey, 66 Ala. R., 266, is a case where suit was brought by Lucinda Dailey v. Geo. J. Dailey as administrator of the estate of Geo. Dailey, deceased. Among the things for which she claimed a recovery was one for twenty-five barrels of corn which she, at the request of the administrator after his appointment, had fed to the swine, belonging to the deceased at the time of his death. The court in relation to that item use this language on pages 268-9 of the opinion : “ One item was for corn fed to the stock of the estate at the request of the administrator, made after his appointment. Such agreement is but the personal contract of the administrator and is no charge on the estate when demanded by the creditor.”

It is further said in that opinion, that if it was necessary to have this corn to feed to the swine, the administrator might have paid for it and been allowed its value in the settlement, but he could not bind the estate to pay for the purchase of that corn. And all upon the theory I have stated, that it is not the business of the administrator to invest the funds of an estate and make purchases and have charges against the estate therefor.

The case in the 47 N. Y., 366, Austin v. Munro, is a case in which the doctrine is, as we think, well stated : “The rule must be regarded as well-settled that the contracts of executors although made in the interests and for the benefit of the estate they represent, if made upon a new and independent consideration as for service rendered, goods or property sold and delivered, or other consideration moving between the promisee and the executors as promisors are the personal contracts of the executors and do not bind the estate, notwithstanding the services rendered, or goods or property furnished, or other consideration moving from the promisee, are such that the executors could properly have paid for the same from the assets and been allowed for the expenditure in the settlement of their accounts. The principle is that an executor may disburse and use the funds of the estate for purposes authorized by law but might not bind the estate by an executory contract and thus create a liability not founded upon a contract or obligation of the testator.”

From these authorities and from the general doctrine of the duties of an administrator, we are clear that the court could not render any judgment — ought not to have rendered any judgment upon this petition against the administrator *as such.*The other question involved is whether a judgment could be rendered upon the petition against the defendant *personally.*

The title of the case is, as I have already said, J. J. Dean v. W. S. West, administrator of the estate of John Glenn, deceased.

*800
      *Lawrence &*Estep, for plaintiff in error.

*George A. Groot,*for defendant in error.

The allegations, however, are that *as administrator*he made the promise But whether it be said that the words in the title of the case, after the name of the defendant, are simply descriptive of the defendants or that he was sued in his representative capacity, we still think it is settled in Ohio, that the judgment against him is against him *personally*and not against him *as*administrator, and the judgment itself, standing as it does, could not be enforced against the estate.

Attention is called to the case of Thomas, Admx., v. Moore, 52 O. S., 200. A suit was brought before a justice of the peace by Moore as surviving partner of a firm of lawyers; the other partner, McKnight, having died. The bill of particulars set out that services were performed by this firm, for the defendant, at her request, in various suits brought on behalf of the estate, then being administered by her, and the prayer was for judgment for the amount of these fees. This suit for fees was brought against “Elizabeth J. Thomas, as administratrix of the estate of David Thomas, deceased.” The judgment was against the defendant in the case, and an appeal was taken by her. The question was, whether she was required to give a bond in order to perfect her appeal. It was urged that because of the statutory provisions as to appeals by trustees, no such bond was necessary. Judge Williams in his .opinion, uses this language.

> “Section 6408, Rev. Stat., contains the general provision that ‘when the person appealing from any judgment or order in any court or before any tribunal is a party in a fiduciary capacity in which he has given bond within the state for the faithful discharge of his duties, and appeals in the interest of the trust, he shall not be required to give bond, but shall be allowed the appeal, by giving written notice to the court of his intention to appeal within the time limited for giving bond.’

> “The provision just quoted is applicable to appeals from justices of the peace, and dispenses with the necessity ot an undertaking for an appeal from their judgments, in cases within its scope, namely, where the appellant is a party to the judgment in a fiduciary capacity, and the appeal is in the interest of the trust ; so that, the inquiry here is, whether the defendant’s appeal presents a case of that kind. We think it does not. The judgment is not against the defendant in her fiduciary character. Though described in the proceedings as the administratrix of her intestate’s estate, the judgment rendered is not a judgment *de bonis intestatoris,*her designation in the proceedings as administratrix, being descriptive of her person merely, and execution issued upon the judgment can run only against her property.” ' i

From these considerations, we conclude that this judgment, as it stands, is a judgment against West personally and not against him in his representative capacity; that such judgment was warranted by the petition. And the same is affirmed.