Painter v. Kaiser

*428 By the Court, Talbot, J: The two matters for our determination are whether the defendant is liable individually on a contract made by her personally, and before her appointment as executrix, by which she agreed that after her appointment she would, without any decree of distribution, pay to the plaintiff, and the other legatees named in the will, the amount of their respective proportions of any money which might come into her hands in excess of $5,000; and, if she is so responsible, the question arises, secondly, whether the plaintiff in this action can recover on the contract set out in the complaint, when she was not one of the parties that signed it, because it was for her benefit, and was accepted and partly executed between her and the defendant. If the action were against the respondent as executrix, there would be force in the contention of her counsel that she had no authority to enter into a contract binding the estate, that money could not be taken out of the. estate to meet such an agreement, and that the statute relating to distribution must be followed; but the suit is not brought, and no relief is asked, against the defendant in her representative capacity, nor against the estate, nor under the statute; and, as the personal judgment sought and execution thereon could not affect or beach the money or property of the estate, the matter for consideration is not confined to the broad proposition, as urged in the demurrer, whether an heir or legatee can bring suit against the executrix for any portion of her share of the estate before distribution is ordered, but whether she is bound individually by her contract when she promises, for valuable considerations yielded to her, to 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 before the decreeing of distribution by the court, or contemporaneously with or at any time after the execution of her contract, and even regardless of her appointment 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 advance an exact date when payment should be made, instead of naming this contingency. *429 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 devisees or heirs appear who are entitled to the money, or a part of it, she and her bondsmen will be liable to them, and it is not apparent that the enforcement of her promise will work any injury to the estate. 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 long 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 liable on their promises made under circumstances 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 reimbursed ultimately on the presentation and allowance of their accounts by the probate court. The rule is well stated by the Supreme Court of Ohio in Waldsmith’s Heirs v. Administrators of Waldsmith, 2 Ohio, 160: "If the action is founded on a promise made by the testator or intestate in his life, the defendant must be sued in his representative character; he may plead plene administravit, 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 necessary to name the defendant as executor, yet this may be done; they may be named as administrators by way of description, or for the purpose of showing the circumstances of the transaction and the origin of the liability; but the defendants cannot plead plene adm,inistramt, and the judgment should be de bonis propriis. * * * If the declaration presents a claim to Avhich 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 judgment must be de bonis testatoris; but, if it present a demand which originated from the acts of the defendant in his capacity of executor, but for which he has *430 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 described in the writ and declaration as executor, or that description majr be omitted, and in either case the judgment would be cle bonis propriis.” In Austin v. Munro, 47 N. Y. 360, it was said.: "The rule must be regarded as well settled that the contracts of executors, although made in the interest and for the benefit of the estate they represent, if made upon a new and independent consideration, as for services rendered, goods or property sold and delivered, or other consideration moving between the promisee and the executors as promisors, are the personal contracts of the executors, and do not bind the estate, notwithstanding the services rendered, 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 principle is that an executor may disburse and use the funds of the estate for purposes authorized by law, but may not bind the estate by an executory contract, and thus create a liability not founded upon a contract or obligation of the testator. (Ferrin v. Myrick, 41 N. Y. 315; Reynolds v. Reynolds, 3 Wend. 244; Demott v. Field, 7 Cow. 58; Myer v. Cole, 12 Johns. 349.) The rule is too well established to be questioned or disregarded, and all departure from it would be mischievous.” In Luscomb v. Ballard, 5 Gray, 403, 66 Am. Dec. 375, the Supreme Court of Massachusetts 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 executor or administrator is personally liable on his contract. And whether the amount is to be repaid from the estate is a question for the court of probate in the settlement.” Upon a demurrer in Holderbaugh v. Turpin, 75 Ind. 84, 39 Am. Rep. 124, it was held that, where a complaint charges the execution of a contract by an administrator in his individual capacity, it binds him individually, although it relates to matters connected with the estate; and that, where he enters into a contract upon a consideration accruing subsequent to the death of the decedent, it is deemed his indi *431 vidual contract. This doctrine has been applied, and has bound the executor or administrator personally, for work done or goods sold to one as executor (Corner v. Shew, 3 Mel. & W. 350; Myer v. Cole, 12 Johns. 349; Davis v. French, 20 Me. 21, 37 Am. Dec. 36; Sumner v. Williams, 8 Mass. 162, 5 Am. Dec. 83); for funeral expenses which he has ordered or ratified (Corner v. Shew, supra; Brice v. Wilson, 8 Ad. & El. 349); where he indorses a promissory note of the deceased (Rex v. Thom, 1 Term R. 489; Curtis v. Bank, 7 Har. & J. 25); or if he makes a note and signs it as executor (Dunne v. Deery, 40 Iowa, 251; Forster v. Fuller, 6 Mass. 58, 4 Am. Dec. 87; Woods v. Ridley, 27 Miss. 119; Germania Bank v. Michaud [Minn.] 65 N. W. 70, 30 L. R. A. 286, 54 Am. St. Rep. 653); where he submits a disputed question to arbitration without express limitation of his liability (Riddell v. Sutton, 5 Bing. 200); where a judgment states that it was rendered against him as administrator, if the facts or record show personal liability (Rich v. Sowles [Vt.] 23 Atl. 723, 15 L. R. A. 850); and under the same rule, and more directly, executors have been held personally liable for the payment of legacies, upon their agreement or implied promise to pay the same (Davis v. Reyner, 2 Lev. 3; Evans v. Foster [Wis.] 50 N. W. 410, 14 L. R. A. 117). In Perry v. Cunningham, 40 Ark. 185, the acceptance by an administrator of an order drawn on him by a creditor of the estate, conditioned to pay “as soon as accruing rents of the estate would permit,” rendered him personally liable upon receipt of the rents. An executor becomes bound personally upon his promise to pay the debt of the testator in consideration that the creditor will forbear for a time to press his claim. (Bishop on Contracts (enlarged ed.) sec. 1252; 1 Story on' Contracts (5th ed.) sec. 361, and the cases there cited.) These principles are also reiterated in 1 Bishop oh Contracts (8th ed.) 128, and in the elaborate note mentioned in the brief (52 Am. Dec., beginning at page 118). The objection that the plaintiff cannot maintain the suit because she was not a signatory to the contract is untenable under Miliani v. Tognini, 19 Nev. 134, 7 Pac. 279, and under the decisions cited there and in 9 Cyc. pp. 377-382. In that case this court said: "The precise question presented is this; *432 Can a plaintiff maintain an action on a simple contract to which he is not a party, upon which he was not consulted, and to which he did not assent, when it contains a provision for his benefit? Besides the statute which provides that 'every action shall be prosecuted in the name of the real party in interest,-’ this court has held in three different cases that the beneficiary named in such a contract may maintain an action thereon in his own name.” The order and judgment sustaining the demurrer and dismissing the action are reversed, and the case is remanded with direction to the district court to fix a time within which the defendant will be allowed to answer. Belknap, C. J., and Fitzgerald, J., concur.