Morning appeal. [volume] (Carson City, Nev.) 1877-1906, 1904-05-14

before distribution is ordered. but Whe- |
Their she is bound individually by her |
contract when she promises for valua- |
bic 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
bind herself to make such payment be
fore the decree of dIsLributiu1 by tie
court or cOntemporaneously 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
i 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
part of it, she and her bondsmen will
|
| ent that the enforcement Of her pr }
mise will work any injury to the Gs-
| tate. After receiving the benefit
| 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
n l. 4, !,
United States following the English
| cases, to the effect that administrators
and executors become personally ia
BILE on their promises made under cir
| cunstances 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 " Administrators of Waldsmith,
Il, Ohio, 100.
IF 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 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 sexs-
cutor, yet this may be done; they may
be 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. -
eff 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; bui
, | if it present a demand which origina
,, 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 lie
: scribed in the writ and declaration as
executor or that description may be
omitted and in either case the jud 3
ment would be de bCnis propriis.'
; In Austin V. Munro, AZ N. Y, II
was said:
! THE rule must be regarded as well
: settled tnat the contracts of executors
although made in the interests and fo1
the benefit of the estate they represent
. if made upon a new and independent
consideration as for services rendered
r goods or property sold or delivered d
other consideration moving between
l the promisee and the executors as pro
t misors, are the personal contracts g.
5 the executor and do not bind the cs
: tate, notwithstanding the services rem
0 dered or goods or property Furnished
l. or other consideration moving from tn,
t promisee are such that the execute. :.
e could properly have paid for the sam,
3 from the assets and be allowed for tn,
:. expenditure in the settlement of thei
o accounts. The principal is that an exc
o cutor may disburse and use tn
S funds of the estate for purposes au
S thorized by law but may not bind tn
(, estate by an executory contract ant
: thus create a liability not founded uI
on contract or obligation of the ties
tator. (Ferrin v. Myrick, Al N Y. 315
! Reynolds v. Reynolds, 3 Wend. 244
l. Demott v. Field Cow, So; Myer v
y Cole, - Johns. 349) The rule is to-
{ well established to be questioned or b
disregarded; and all departure from
? would be -mischievous."
l. In Luscomb v Billiard Gray 40a
r 66 Am. D. 375. the Supreme Court d
t Massachusetts said: 10
Y The law is that by "a promise, tn
y consideration of which arises after til
l. death of the testator or intestata, tn
!, estate cannot be charged hut the el
e ecutor or administrator is PERSONAL
n liable on his contract. And whethe
It the amount is to be repaid from the q:
s tate is question for the court Of Pre-
r bate in the settlement"
V Upon a demurrer in Holderbough vs.
l. Turpin, IS Ind. "a, it was held thu
a ! whore a cOmnlaint charges the oyt