Morning appeal. [volume] (Carson City, Nev.) 1877-1906, 1904-05-20

| contract when she promises for valua-
| BILE considerations yielded to her 20
| perform some act pertaining to the
managemen t 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 distribution ny tie
court or cOntempOraneously with or at
any time after the execution Of her
contract, and even regardless Of her AZ
pointment or acting as eXecutr:x. 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. #. 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 nlally 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 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 10 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
| To obi ictr tore
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 manv
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, 100
eff the action is founded on 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 plene administrator
|
and the Judgment must be 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 sexe-
cutOr, yet this may be done; they may
tie 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 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 testatoris 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 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 AT N. Y, it
was said:
The rule must be regarded as well
settled mat the contracts Of executors
:. although made in the interests and for
the benefit of the estate thew 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 cs-
tate, notwithstanding the services rem
dered, or goods or property furnished
Or other consideration moving from the
prCmisee are such that the execute IS
could properly have paid for the same
from the assets and be allowed for the
expenditure in the esttlement of their
accounts. The principal is that an exc
cutor may disburse and use the
funds CT the estate, for purposes au-
thorized by law but may not bind tn :
estate by an eXecutOry contract and
thus create liability not founded up
on contract or obligation Of the tes-
tator. dFerrin v. Myrick, Al NJ Y. 315;
REYNOLDS v. REYNOLDS. 3 Wend. 244;
Demott " Field Z Cow, So: Myer v.
:. Ccle, II Johns. 349). The rule is too
well established TO be questioned or be
disregerded .@andAaTl departure from it
would be mischievous
:. H. IN ts"onb v. Ballard 5 Gray 400.
: IS Am. D. 375. the Supreme Court Of
Massachusetts, said:
THE law is that by a promise, the
zcGnsid era;iCn Of which arises after the
death of the testator or intestate, the
estate cannot be charged but the ex-
ecut0r or administrator is personally
liable on his contract. knd whether
the amount is to be repaid from the es-
toFo is question for the court of pro-
bate in the settlement
Unon demurrer in Holderbough vs.
Turpfn. Is Ind. 81, it was held that
whore complaint charges the exc.
crtion CT a contract by an administrat-
or in his individual capacity, it binds
i'm iI-iI nj ~