Morning appeal. [volume] (Carson City, Nev.) 1877-1906, 1904-05-21

Vic CtlOhS yiSloSu " ASi ~ |
perform some act pertaining tC the |
Of the estate such as the
payment of money owing or to become
due from the estate to heirs or 9th ers.
We see no reason why she could not
bind herself to make such payment be-
fore the decree OF distribution by tie
court or contempOraneOuslyw 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
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
| bic 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 wei! stat
ed by the Supreme Court of Ohio in
Heirs V. Administrators of Waldsmith,
., 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 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 teStatOr it is not neces-
sary to name the defendant a sexa.
cGtor, yet this may be done; they may
lie 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 plenl
admnstravit 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 al
! obligation executed by the teStatOr, he
must he sued as executor and the judg
| nlent must be de bonis testatOTis; but
if i present a demand which 0rigina
! ted from the acts of the defendant ir
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 judg
ment would be de bonis propriis.'''
In Austin, V. Munro. Al n. Y, il
was said: q
''The rule must be regarded as well
settled mat the contracts of executor:
although made in the interests and fol
the benefit of the estate they represent
if made upon a new and Independent
consideration as for services rendered
goods or property sold or delivered u
other consideration moving between
the promisee and the executors as pro
misors, are the personal contracts q
the executor and do not bind the es
tate, notwithstanding the services rem
dered, or goods or property furnished
or other consideration moving from tn,
prOmisee are such that the executor!
could properly have paid for the sam,
from the assets and be allowed for tn,
expenditure in the settlement of thei
accounts. The principal is that an exc
. cutor may disburse and use tn
funds of the estate for purposes au
thorized by law but may not bind tn
, estate by an executory contract an,
thus create liability not founded ul
on a contract or obligation Of the ties
tator. (Ferrin " Myrick, Al N Y. 315
Reynolds " Reynolds, 3 Wend. 244
Demott v. Field Cow, So; Myer '
: Cole. IL Johns, 349). The rule is to-
well established to be questioned or b.
: disregarded: and all departure from
! would be mischievous.
: In Luscnmb v. Ballard Gray 400
!. Sc Am. D. 375, the Supreme Court q
/ Massachusetts said:
THE law is that by promise, tn
. consideration of which arises after tn
death of the testator or intestate, tn
. estate cannot be charged, but the ez
, ecutor or administrator is personall
liable on his contract. And whethe
. the amount is to be repaid from the es
, tete is a question for the court of pre-
r bate in the settlement
: Upon a demurrer in Holderbough vs.
: Turpin, IS Ind. "a, it was held tina
: where complaint charges the exc
, cution CT contract by an administra
| or in his individual capacity, it bind
, him individually, although it relates