Morning appeal. [volume] (Carson City, Nev.) 1877-1906, 1904-05-17

1
contract when she promises for valua-
BILE considerations yielded to her %
perform some act pertaining to the
management of the estate such as the
payment CT 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 uislrib,tIc1 by the |
court or contemporaneously with or at !
any time after the execution of her |
contract, and even regardless of her AZ |
pointment or acting as executrix. The
promise to pay when the money came
into her hands was as binding as any
timely condition which fixed in adj
! vance an exact date when payment
J should be made instead of naming this
| 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 1nally 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 10 the es-
tate. After receiving the benefits
| which the agreement provided for her,
she should not be allowed to repudiate
that part of il which is advantageous
to the others interested Beginning
early in the common law the rule has
iongk prevailed and the authorities are
numerous and in harmony. those in the
| United States following TIE English
~, hot i,,ic tra tn,,e
and executors become personally Tia
BILE on their promises made under cir
cumstances similar to those existing
here, although they cannot so bind the
estate Ordinarily they must do many
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 we'll stat
ed by the Supreme Court of Ohio in
Heirs v. Administrators of Waldsmith,
2, Ohio, 100.
IF the action is founded on pro-
mise made by the testator or intes
tate, in his life. the defendant must
be sued in his representative charac-
ter; he may plead plene administravit
and the judgment must he de bonis
testatoris; but if the plaintiff rely on
a promise by the executor after the
death of the testator 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 Of
, description or for the purpose of show
ing the circumstances of the trans
] ORR of 10 IN "
! but the defendant cannot plead plena
,, admnistravit and the judgment should
. be de bonis propriis.
'If the declaration presents a claim
to which the defendant is liable in mis-
representative capacity only, as on an
obligation executed by the testator, he
| must be sued as executor and the judg-
, | ment must be de bOnis testatOris; but
, | if It present demand which orr gina
, ted from the acts of the defendant in
his capacity Of executor, but for which
, he has become individually liable, as
! if he should settle 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 as
executor or that description may be
omitted and in either case the judy
ment would he de bcnis propriis.'
> In Austin V. Munro, ~ N. Y, it
was said:
. ''The rule must be regarded as we'll
settled mat the contracts Of executors
although made in the interests and for
: the benefit of the estate thoy represent
if made upon a new ami independent
= consideration as for services rendered
r goods or property sold or delivered or
other consideration moving between
/ the prOmisee and the executors as pro-
t misOrs, are the personal contracts RI
5 the executor and do not bind the cs
/ tate, notwithstanding the services rem
o dered, or goods or property furnished
l. Or other consideration moving from the
It promisee are such that the execute. IS
e could properly have paid for the samt
Z from the assets and be allowed for the
= expenditure in the settlement of thei1
O accounts. The principal is that an exc
O Cutor may disburse and use the
s funds of the estate for purposes au
s thorized by law but may not bind tn;
(, estate by an executory contract anC
: thus create liability not founded up
on contract or obligati ton of the ties
tator. (Ferrin V. Myrick, Al N Y. 315;
l. Reynolds V. Reynolds. Wend. 24t:
l. Demott V. Field Cow. So; Myer V
y Cole, II Johns. 349). The rule is toe
Z well established to be questioned or bc
= disregarded; and ell donarture from i
, would be mischievous
i In Luscomh V. Ballard 5 Gray 403
II Sc Am. D. 375. the Supreme Court o
Il MASSACHUSETTS, said:
:. "rFhe law is that by promise, til
" consideration Of which arises after th&
l. death of the testator or intestate, tht
:, estate cannot be charged, but the ok
e ecrtOr or administrator IS PERSONAL.
y liable on his contract md whethe,
i me amount is TO be repaid from the es
s f3ta is question for the court of pro
r. bate in the settlement
Y Upon demurrer in Hoderbough VS.
l. Turpin. IS Inde 81. it was held tina
. where a complaint charges the exc
- cutiOn of contract by an Administered
h Il "a e l.;