Perry v. Cunningham

OPINION. Eakin, J. The acceptance by the administrator raised a personal obligation according to its terms. Such a conditional acceptance did not make the instrument paper, but it was nevertheless assignable under the statutes. It was, in effect, as if the acceptor by an original instrument had promised to pay the drawerCMthe sum mentioned out of certain rents when they should come into his hands. Such an instrument would have been assignable — vesting right of action in the assignee, even before the civil code, certainly after.—Owen v. Lavine, 14 Ark., 389. And it created a personal obligation only. Perry, as administrator, “eim testamento,” of Dawson’s estate had no right to bind it by any note or written obligation. If such are executed, as they may be for convenience, they still remain the personal obligations of the representative. The Probate Court may, in all proper cases, allow them as expenses of administration, not as classified claims against the estate.—Yarborough v. Ward, 34 Ark., 204. It was not then a case of election. The plaintiffs could not treat it as a claim against the estate in any view. It seems that the drawer had formerly been the representative of the estate, and had claims against it which were subsequently allowed for expenses of administration; and that this instrument was drawn by him upon defendant as administrator de bonis non oum testamento annexo for a portion of the amount. The plaintiffs had petitioned the Probate Court for an order that the amount, so allowed, should be paid to them; and the Probate Court had recognized them as entitled to it; and made upon the defendant as administrator, de ‘bonis, &o., a general order for payment of expenses of administration, and allowances in their order. At least this would appear if we could, without a bill of exceptions incorporating it, look into the exhibit attached to the answer. But if this were all true, it is obvious that it would not relieve defendant of a personal obligation to do the very thing ordered to be done, until he had done it. If money sufficient came into his hands from rents, an obligation binding him in person was created. This would have been absolved by payment or lease. Certainly not by an order of the Probate Court upon him to do the same thing in the course of his duty; if there had been such order. ’ The defect in the complaint is, that it seems to treat the l acceptance as positive; and in that view the plea of the statute of limitation would be good. But in .truth, as appears from the face of it, the acceptance was conditional and no right to sue upon it accrued before the rents came in hand. The complaint does not definitely show that any did; or that there ever was cause of action; but does show that defendant prolnised to pay “as early as the rents of the estate of W. H. Dawson,' deceased, would permit;” and alleges that defendant has not paid said sum of money, “although said period has long since' elapsed.” There was no demurrer to this complaint, nor motion to make it more definite. The bill of exceptions does not set forth the evidence, and we must presume that enough was shown to satisfy the jury that the conditions of defendant’s liability in this regard had attached. The bill of exceptions sets forth no evidence, and we can ip . •iiii. notice no grounds for a motion for a new trial, the deter- ° mination of which might depend on evidence. The instructions given and refused, although perhaps not in all respects literally correct, fairly presented the law as above declared, and we think there is no material error for which there should be a reversal. Affirmed.