Brannon v. Ober & Sons Co.

Simmons, O. J. The law as to the right, generally, of an executor or administrator to bind by contract the estate he repre.sents is clearly laid down in the cases of McFarlin v. Stinson, 56 Ga. 396, and Lynch v. Kirby, 65 Ga. 279, relied upon by counsel for .plaintiff in error. It is his duty, generally, to wind up the estate .within a certain time, to pay creditors and make distribution to the heirs at law. It -is therefore held generally that he has no power to bind the estate by contract. Where, however, -there is a will, it becomes the law to the personal representative, whether he be executor or administrator de bonis ■non cum testamento annexo. The testator, if he so_ chooses, can - change the law as to his own estate and give his representative power to continue his business, to make contracts, and to bind .the estate. In the present case his will confers, upon the executors named, powers greater than those given by the general law. It provides and directs that they shall keep together, during the life or widowhood of his wife, all of his property except such .as the}'' may deem it to the interest of the estate to sell, directs that the wife and children shall be maintained and supported ■•and the children educated out of the estate so long as the same is kept together, and authorizes the executors to purchase any ■property it may be deemed important for the estate to own. It seems that the testator was a farmer and supported himself and family by means of farming operations. He therefore, to support and maintain his wife and children, deemed it best to ■ change' the general law as to the distribution of his estate . amongst his heirs, and directed that it should be kept together .and his wife and children supported from the proceeds, authorizing his executor’s to purchase such property as it was important that the estate should own. This he certainly had a ■.right to do, and in pursuance of this power the administrator ' [171] de bonis non cum testamento annexo (the executors having failed to qualify) purchased guano for the use of the estate and gave his note therefor as administrator. It was doubtless for the purpose of increasing the yield of the land cultivated by him, as directed by the will, that he made this purchase. Being authorized by the will to make the purchase, we see no reason why he could not give his note for the purchase-money. The note was simply the evidence of the contract, and, being in writing, was not barred fiy the statute of limitations until six years from its execution. This same question was considered by this court in the case of Palmer v. Moore, 82 Ga. 177, under a will containing provisions almost identical with those of the will now under consideration. In that case, as in this, there was an administrator cum testamento annexo, and it was held: “Express direction in a will to keep the estate together, and carry on farming operations, implies a limited power in the executrix to incur debts on the credit of the estate for needful supplies, etc., as prudent farmers usually do in the management of t'heir own business of ‘like kind. Unless such power be one manifestly confided to. the executrix as a personal trust, it is exercisible by an administrator with the will annexed. Under the will now in question, the power was so exercisible.” The reasoning of Bleckley, O. J., in that case fully covers the points in this, and we will content ourselves with stating it as an authority which, under the facts of the present case, is controlling.' The cases cited by counsel for plaintiff in error, supra, as remarked, hold the general doctrine that the representative of an estate can not make a contract binding the estate. The question here decided was not made, or, if made, was not passed upon by the court in those cases. In the -case of McFarlin v. Stinson, supra, the question was not raised at all by the pleadings, and the court simply held that an executor can not, generally, bind the estate of his testator by the execution of a note signed by him as executor. In the case of Lynch v. Kirby, the suit was on a promissory note, and was filed December 27, 1869. Subsequently, in March, 1877, and September, 1879, the plaintiff amended the declaration by reciting that the will of the testator directed that the estate be “kept together and managed [172] for the benefit of [his] wife and children, as though [he] still lived with them”; that the note was given for money loaned to the executrix and by her invested in provisions and stock in accordance with the authority conferred on her by the-will. Warner, G. J., following the case of McFarlin v. Stinson, announced the same principle, the only reference to the amendment being that it was barred by the act of 1869. Hence we-think that these decisions do not conflict with that made in the-case of Palmer v. Moore, supra, or with that now made. Judgment affirmed'. "AU the Justices concurring.