Morning appeal. [volume] (Carson City, Nev.) 1877-1906, 1904-05-12

contract Wnc0 she promises IOr V8lO8-
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
Dind herself to make such payment be-
fore the decree of distribution by tie
court or contemporaneously with or at
any time after the execution of her
contract, and even regardless Of her Ap
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 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 pr,-
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-
| BILE on their promises made under cir
| cumstnnces similar to those existing
| here although they cannot SO bind the
| estate. Ordinarily they must do many
| acts and make man. 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, 100
| IF the action is founded CT a 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 pleue 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 otter the
death Of the testotor it is not neces-
sary to name the defendant seXs-
cutter, 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
action and the origin of the liability;
but the defendant cannot plead plene
admnistravit and the judgment should
be de bonis propriis.
''If the declaration presents a claim
to which the defendant is liable in his
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 testatcris; but
if it present a demand which origina-
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 a debt due from the
estate and give his own note in the
character of executor, he may be de-
scribed in the writ and declaration as
executor or that description may be
omitted and in either case the judg-
ment would be de bcris propriis.''
In Austin v. Munro, Al n Y, it
was said:
''The rule must be regarded as we'll
settled mat the contra cts Of executors
although made in the interests and for
the benefit of the estate they represent
if made upon new and Independent
consideration as for services rendered
goods or property sold or delivered Or
other consideration moving between
the promisee and the executors as pro-
misors, are the personal contracts IF
the executor and do not bind the es-
tate, notwithstanding the services rem
dered, 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 be allowed for the
expenditure in the settlement of their
accounts. The principal is that an exc
cutOr may disburse and use the
funds of the estate for purposes au-
thorized by law but may not bind the
estate by an executory contract and
thus create liability not founded up
on contract or obligation of the tes-
tator. (Ferrin v. Myrick, Al N Y BIS;
Reynolds v. Reynolds, Wend. 244;
| v.
Cole, II Johns. 349). The rule is too
we'll established to be questioned or be
disregarded: and all departure from it
would be mischievous
In Iuscomb v. Ballard Gray 4O3,
66 Am. D. 375, the Supreme Court Of
! Massachusetts, said:
THE law is that by promise, the
consideration of which arises after the
| death of the tost9tOr or inteStato tho
estate cannot be charged, but the ex-
ecutor or administrator is personally
liable on his contract And whether
the amount is to be repaid from the es-
Fate is a question for the court of pro-
bate in the settlement"
Upon demurrer in Holderbough VS..
Turpin. Is Ind. S4 it was held that
iwhere a comn'aint charges the exc
cution Of a contract by an administrat-
or in his individual capacity. it binds
| him individually althcuoh If relates tn