Morning appeal. [volume] (Carson City, Nev.) 1877-1906, 1904-05-22

Their she is DOunQ ln0lVlQudlly Dy Her |
contract when she promises for valua-
BILE considerations yielded to her 20
perform some act pertaining to The
managen ent 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 d,sLributlo1 ny 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 executriK. The
promise to pay when the money came
into her hands was as binding as any
timely condition which fixed in ad
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
Y~,:% fo11o thn EYorv oh,
cases, to the effect that administrators
and executors become personally ia
BILE 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 well stat
ed by the Supreme Court of Ohio in
| Heirs V. Administrators of WalGsmith,
2, Ohio, $50.
| 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 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 sexa-
cutor, 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 plen2
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 a debt due from the
estate and give his own note in the
character of executor, he may be de,
scrihed 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 " Munro, AZ 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 they represent
if made upon new and Independent
consideration as for services rendered
goods or property sold or delivered 81
other consideration moving between
the promisee and the executors as pro
misors, are the personal contracts 81
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 theil
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 tes
tator. (Ferrin v. Myrick, Al N. Y. 315;
Reynolds v. Reynolds, Wend 244;
Demott v. Field Z Cow, So; Myer Y
Cole, II 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 Gray 4O3
66 Am. D. 375, the Supreme Court OF
Massachusetts, said:
s'rTho IN is fhot nv ,,roro;eo thu
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 whether
the amount is to be repaid from the es.
tate is question for the court of pro.
bate in the settlement"
Upon demurrer in Holderbough vs.
Turpin. Is Ind. "a, it was held that
where 3 complaint charges the exc
cutiOn of a contract by an administrat