Morning appeal. [volume] (Carson City, Nev.) 1877-1906, 1904-05-15
before distribution is ordered, but who

OO1Or0 UlStElUuI1Ou Is OfUcTcQ, OUT VINO
Their she is bound individually by her
when she promises for valua-
BILE considerations yielded to her 20
perform some act pertaining to the
of the estate such as the
payment CT money owing CT 10 become
due from the estate to heirs CIR others
We see 10 reason why she could not
bind herself to make such payment be-
fore the decree CT Glslrihurlo1 by tie
court or cOntemporaneou with or at
any time after the execution of her
contract, and even regardless of her al
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. Il. 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 ho2Ily 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 CT her pr
mise will work any injury to the es-
tate. After receiving the benefits
which the agreement provided for her,
she should net 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 Tia
bic on their promises made under cir
cumstances similar to those existing
here. although they cannot SO bind the
estate. Ordinarily they must do man.
acts and make many contracts for
which they are liable personally and
for which they are entitled to be reim-
bursed ultimately on the presentation
and allowance of their accounts by the
probate court. The rule is we'll stat
ed by the Supreme Court of Ohio in
Heirs v. Administrators of Waldsmith,
2, Ohio. 1G0.
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 a sexs-
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.
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; 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-
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 " Munro. At n. Y, it
was said:
THE rule must be regarded as we'll
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 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 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 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 the
estate by an executory contract and
thus create liability not founded up
on contract or obligation of the tes-
tator. (Ferrin v. Myrick, Al N. Y. 315;
Reynolds v. Reynolds. 3 Wend 244;
DemOtt v. Field Z Cow. So; Myer V.
Cole, IL Johns. 349). The rule is too
well established to be questioned or be
disregarded; and all departure from it
would be mischievous.'
In Lusconb v. Ballard 5 Gray 403,
&c Am. D. 375, the Supreme Court of
ssachuestts 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 Ard 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. 81, it was held that
Where a complaint charges the exc
cution CT a contract by an administrat-
or in his individual capacity, it binds