Morning appeal. [volume] (Carson City, Nev.) 1877-1906, 1904-05-18

before distribution is ordered, but who |
Their she is bound individually by her
contract when she promises for valua-
BILE considerations yielded to her 20
perform some act pertaining to the
management of the estate such as the
payment OF money owing or to become
due from the estate to heirs or others.
We see no reason why she could not
bind herself to make such payment be-
fore the decree of disLributinr by tie
court or cOntempOraneOusly with or at
any time after the execution of her
contract, and even regardless Of her aD
pointment or acting as executrix. The
promise tc pay when the money came
| into her hands was as binding as any
timely condition which fixed in ad-
/ vance an exact date when payment
J should be made instead of naming thi;
| contingency. If. to meet the personal
obligation which she incurred by the
! execution of the contract, she uses the
| money belonging to the estate, she
| takes the risk OF not having the same
| allowed to these legatees finally by the
court, and if other devises or heirs ap-
pear who are entitled to the money or
a part OF it, she and her bondsmen will
! be liable to them and it is not appar-
| ent that the enforcement Of her pro-
mise will work any injury to the es-
| tate. After receiving the benefits
| which the agreement provided for her,
| she should not be allowed TO repudiate
that part Of it which is advantageous
to the others interested. Beginning
early in the common law the rule has
| lOngk prevailed and the authorities are
numerous and in harmony, those in the
United States following the English
cases, to the effect that administrators
and executors become personally ia
bic on their promises made under cir
cumstances similar to those existing
here, although they cannot SO bind the
estate. Ordinarily they must do MAN.
acts and make many contracts for
| which they are liable personally and
for which they are entitled to be REIN
bursed ultimately on the presentation
and allowance of their accounts by the
probate court. The rule is well stat
ed by the Supreme Court of Ohio in
Heirs v. Administrators of Waldsmith,
2, Ohio, $50.
IF the action is founded on a pro-
mise made by the testatOr or intes-
tate, in his fife. the defendant must
be sued in his representative charac-
ter; he may plead plene administrator
and the judgment must be done upon
and the Judgment must be de bonis
testatoris; but if the plaintiff rely on
a promise by the executor after the
death of the testctor it is not neces-
sary to name the defendant a sexs
cutOr, yet this may be done; they may
he named as administrators by way 81
description or for the purpose of show
ing the circumstances of the trans
action and the origin of the liability
but the defendant cannot plead plens
admnistravit and the judgment should
be de bonis propriis.
eff the declaration presents claim
to which the defendant is liable in his
representative capacity only, as on ar
obligation executed by the testator, he
must be sued as executor and the judg
, | ment must be de bonis testatoris; bu
if it present a demand which origina
,, ted from the acts of the defendant ir
his capacity of executor. but for which
, he has become individually liable, az
if he should settle a debt due from the
estate and give his own note in the
character Of executor. he may be lie
: scribed in the writ and declaration a:
! executor Or that description may b,
omitted and in either case the juds
ment would be de bonis propriis.".
In Austin V Munro, AZ N. Y, i
; was said
! '"The rule must be regarded as vel
settled mat the contracts Of executor
although made in the interests and TO
: the benefit of the estate they represen
: if made upon a new and Independent
= consideration as for services rendere'
r goods or property sold or delivered .
other consideration moving betwee,
1 the promisee and the executors as pre-
t misOrs, are the personal contracts e
S the executor and do not bind the os
: tate, Notwithstanding the services rer
0 dered, or goods or property furnishe
l. or other consideration moving from tn
It prOmisee are such that the executor
e could properly have paid for the sam
;, from the assets and be allowed for tn
:. expenditure in the settlement of thei
O accounts. The principal is that an exc
o cutor may disburse and use tn
S funds of the estate for purposes al
s thOriZed by law but may not bind tn
(, estate by an executory contract an
= thus create liability not founded vi
on contract or obligation of the te:
tator. (Ferrin v. Myrick, Al N. Y. 315
l. Reynolds v. Reynolds. 8 Wend. 244
l. Demott v. Field Z Cow, So; Myer +,
y Cole. II Johns, 349). The rule is to
T. well established to be questioned or b
3 disreoarded end all departure from
? would be mischievous.''
l. In Luscomb v Ballard Gray 40;
r SIS Am. D. 375. the Supreme Court t
( Massachusetts, said:
J THE law is that by promise, tn
y consideration Of which arises after tn
l. death of the testator Or intestate, tn
!, estate cannot be charged. but the e,
e ecutor or administrator Is PERSONAL
n liable on his contract. And whethe
t the amount is to be repaid from the g
s tate is a question for the court of pr
r. bate in the settlement"
V Upon demurrer in Hold erbough v
J. Turpin, Is Ind. 81, it was held tn.
O. where complaint charges the ex
u, cution Ct contract by an administra
81 or in his individual capacity. it binf
- him individually a1thouph If ro1at aS