Morning appeal. [volume] (Carson City, Nev.) 1877-1906, 1904-05-19

Their she is bound individually by her |
contract when she promises for valua- |
BILE considerations yielded to her 10 |
perform some act pertaining to the |
management 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 G,sLributio1 by tie
court or cOntempOraneOusly with or at
any time after the execution of her
contract, and even regardless Of her ap
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 pro-
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
! 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 we'll stat
ed by the Supreme Court of Ohio in
Heirs v. Administrators of Waldsmith,
2, Ohio, 16O.
If the action is founded on a pre-
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 sexa-
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 a claim
to which the defendant is liable in his
representative capacity only as on an
obligation executed by the testator, he
must he sued as executor and the judg-
ment must be de bonis- testatoris; but
| if it present 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 juds-
ment would be de bonis propriis.'
| In Austin V. Munro. II 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 a new and independe nt
consideration as for services rendered
goods or property sold or delivered or
other cOnsidera ton moving between
| the prOmisee and the executors as pro-
misors, are the personal contracts Of
the executor and do not bind the os-
| tate, nOtwitn stanG NJ 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 tn =
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 Cow, So; Myer v
Cole, II Johns, 349). The rule is too
well established to be questioned or be
| disreearded; and all departure from it
would be mischievous'
In uscomb v. Ballard Gray 4O3,
6G Am. d. 375. the Supreme Court of
MASSACHUSETTS, said:
, The law is that by promise, the
i consideration CT 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-
tHte is a question for the court of pro-
| bate in the settlement"
Upon demurrer in Holderbough VS..
Turpin, Is Ind. "a, it was held that
where a complaint charges the exc.