Morning appeal. [volume] (Carson City, Nev.) 1877-1906, 1904-05-13
,efore distribution is ordered, but who

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 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 d.slributi;,1 by tie
court or ccntempOraneously with or at
any time after the execution of her
contract, and even regardless of her AD
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
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 tne
money belonging to the estate she
takes the risk Of not having the same
allowed to these legatees hnally by the
! court, and il 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 apDar-
ent that tne 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 il which is advantageous
to the others interested. Beginning
| early in the common law the rule has
=
numerous and in harmony those in the
United States following the English
| cases, TO the effect that administrators
and executors become personally ia.
Die on their promises made under cir
cumstances similar to those existing
r..,a, although they cannot so bind the
estate. Ordinarily they must do many
acts and make many contracts for
which they are liable personally ali
for which they are entitled 70 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. Adminisrrat tors of Waldsmith.
2, Ohio, 100.
IF the action is founded on a pro-
mise made by the testator or inte5-
tate, in his life. the defendant must
be sued in his representative charac-
ter; he may plead plene administravit
ana the Judgment must be done uDCu
and the Judgment must he de bOnis
testatoris; but if the plaintiff yelv on
q promise by the executor after the
,,ea,n T.. ne testator it is not neces-
sary to name the defendant q seEa-
cutor, yet this may be done; they may
lie 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
admnistrayit and the judgment should
be de bOnis propriis.
eff the declaration presents a claim
| to which the defendant is liable in MS
representative capacity only, as on an
obligation executed by the testator, he
must be sued as executor and the judy
| ment must be de bonis testatOris; but
| if it present 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 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 judy
ment would be de bonis propriis.''
In Austin v. Munro, Al N. Y, 1t
was said:
The rule must be regarded as we'll
| settled that the contracts of executors
although made in the interests and for
the benefit of the estate they represent
II 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 ct
the executor and do not bind the cs-
tate, notwithstanding the services rem
dered, or goods or property furnished
Tor other consideration moving from the
promisee are such that the execute: -
could properly have paid for the same
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 tn
estate by an executory contract and
thus create a liability not founded up
ON . contract or Obligation Of the ties.
tator. (Ferrin v. Myrick, Al N. Y. 315;
Reynolds v. Reynolds. Wehd. 244;
Demott v. Field Cow, So; Myer v
Cole. IL Johns. 349). The rule is toe
well established to be questioned or be
disregarded; and all departure from II
would be mischievous"
In Luscomb v. Ballard 5 Gray 403
66 Am. D. 375. the Supreme Court Of
Massachusetts, said:
"The law is that by a promise. the
consideration Of which arises after the
death Of the testator or intestate, the
estate cannot be charged. but the ex
ecutor or administrator is personally
liable on his contract. and whethe;
the amount is to be repaid from the es
tate is a question for the court of pro
bate in the settlement"