Lovenskiold v. Nueces Hotel Co.

FLY, C. J. Appellee sued to recover from appellant, as independent executor of the estate of O. C. Lovenskiold, deceased, and individually, on a certain subscription to build the Nueces Hotel in Corpus Christi, Tex. The court held that the estate was not bound by the instrument executed by appel *760 lant, but that be was personally bound and rendered judgment against bim for $707.20. Tbe instrument on wbicb tbe suit is based is as follows: “Corpus Christi, Texas, 1 — 17—1911. “I, -, hereby subscribe the sum of $500 to the capital stock of the corporation to be organized for the purpose of purchasing the site and building a commercial hotel on the beach portion of the city of Corpus Christi, Nueces county, Texas. “As soon as $150,000 of the capital stock for said purpose has been subscribed (provided same is done on or before April 1, 1911), I hereby agree, bind, and obligate myself to pay in cash, when called upon by the treasurer of said company, 50 per cent, of the amount herein subscribed by me. “The balance of said amount subscribed X will pay to the treasurer in two equal installmeuts, in 60 and 120 days, respectively, after the date of said first payment. “[Name] P. G. Lovenskiold, “Executor O. C. Lovenskiold Estate.” It is clear that tbe independent executor under tbe terms of tbe will of Oscar C. Lovenskiold bad no authority to' bind tbe estate of tbe testator in subscribing tbe stock of a botel company. No power to invest any part of tbe estate in any business is given in tbe will, but it is provided in tbe will that the revenues from tbe real estate should be divided among certain devisees; that certain real estate should be sold and tbe proceeds divided; that all personal effects be divided between two brothers, and life insurance money be used in building, a monument and in paying $1,000 for tbe support of A. L. Lovenskiold, a brother of deceased. Everything was fully provided tor, and no provision was made for any investments of any kind. It is tbe rule that the contracts of an executor or administrator are not binding on the estate, in the absence of statutory authority, or express or implied power in tbe will itself. The statutes of Texas do not authorize an executor, whether independent or otherwise, to take tbe money of the estate and invest it in stocks or bonds, and the will in this case gives no such authority, either expressly or by implication. No general powers are given by tbe will, but each and every act authorized is set out therein. The trial court properly held that the estate was not bound by the subscription. It is equally clear that tbe instrument given by appellant bound him individually. The very language of the instrument binds him as an individual, and there is nothing to indicate that tbe estate bad any connection with the subscription, except that appellant wrote after bis, nam e the words, “Executor O. C. Lovenskiold Estate.” But, if be bad contracted in the name of the estate, it would not have bound the estate, but would have bound him individually. Elliott on Contracts, §§ 512-519; Gibson v. Irby, 17 Tex. 173; Warren v. Hanold, 92 Tex. 417, 49 S. W. 364; Pease v. Realty Co., 141 Iowa, 482, 119 N. W. 975, 42 L. R. A. (N. S.) 57; Germania Bank v. Michaud, 62 Minn. 459, 65 N. W. 70, 30 L. R. A. 286, 54 Am. St. Rep. 653. In the case last cited tbe executor-signed tbe note, “The Estate of E. Langevin,. by Aehille Michaud, Administrator.” It has-been held that the executor may save himself by inserting in the note a provision against personal liability. Banking Co. v. Morehead, 116 N. C. 413, 21 S. E. 191; Fisheries Co. v. McCoy (Tex. Civ. App.) 202 S. W. 343. The allegations of the petition were sufficient to show the liability of appellant. The allegations were aimed primarily at liability as executor, but it was distinctly stated: “That should it appear, and should the court hold, that by the execution of said stock subscription, defendant did not bind the assets of the estate of O. C. Lovenskiold, deceased, and that his act in the execution of said instrument would not have the legal effect of binding said estate, then in that event, plaintiff would allege-that by reason of the foregoing allegations the defendant, P. G. Lovenskiold, did, by the execution and delivery of said instrument, bind himself personally, and by reason of the foregoing allegations did become and is personally liable on said, stock subscription contract for the entire balance due thereon to this plaintiff, and this plaintiff is entitled to a personal judgment against the said P. G. Lovenskiold for the entire balance due thereon.” All of tbe requisites as to tbe execution, and delivery and other essentials bad been fully alleged as to the executor and they were applied to appellant personally. None of the assignments of error are well taken, and tbe judgment will be affirmed.