Florsheim Bros. v. Holt

The opinion of the court was delivered by White, J. We do not think there was error in overruling the exception ; the face of the papers showed that the indebtedness inured to the benefit of the succession ; and, taking this for true, there was a good cause of action. The -want of allegation that Harris had authority to sign the note was certainly a defect in the pleadings ; but, taking the petition as a whole, we think the inference fairly deducible that the act of Harris in signing the note was the act of the executor. The contract made with Harris we consider undoubtedly threw upon him the burden of paying the running expenses of the plantations ; the words of the contract which charge him with the duty of paying the taxes and all the “ farming and grazing expenses,” admit of but one [135] construction. The act, therefore, of Harris in opening an account with the plaintiffs in his name, and obtaining advances as agent of Holt, executor, was clearly without warrant. The proof, we think, establishes that L. H. Holt, the agent of the executor, was aware of Harris’ conduct ; knew that the advances were being made; and was not only by his silence, but it may be by his consent and approval, the cause- of the giving of the credit to Harris, as the pretended representative of the executor. But this cannot help the plaintiffs’ case. L. H. Holt, the authorized agent of the executor, could, under the power, have no greater authority than would have had the executor. Now, we take it that it is no longer an open question that an executor cannot, at the risk of the succession, carry on planting operations, and contract in so doing debts so as to bind the estate; at all events, certainly not without previous authority obtained. Miltenberger vs. Taylor, 23 A. 189, and authorities there cited. Nor do we think the eases of Succession of Wedersti-andt and Succession of Brown teach a contrary doctrine. 19 A. 494; 27 A. 331, The first case simply holds that where at the death of a testator a crop has been planted an executor may, unless the heirs and legatees object, cultivate it to fruition. The second, that where an executor does exceed his powers and carry on a plantation, the heirs may take the proceeds on paying the necessary expenses incurred in making it. The argument that because the debit side of the account shows that taxes were paid by the money of the plaintiffs’ firm, therefore the succession is bound pro tanto, is without force. The product of the cotton sold was more than sufficient to pay these, as well as the other items referred to in the brief of counsel. The account must be considered in one of two lights: either as an account of Harris, as representative of Holt, executor, or as that of Harris individually. If the first, then the cotton was received and sold for the account of the executor, and the credit must be imputed to that which the succession owed. If in the name of Harris individually, then the succession would not be bound at all. Of course, we are not concerned with the hardship of the plaintiffs’ case; if they acted without due precaution, or upon erroneous representations, they must look elsewhere for recovery. We cannot enforce against the succession an obligation which did not inure to its henefit, and which was entered into beyond the scope of the executor’s authority. Judgment reversed ; and judgment be and- the same is hereby rendered in favor of the defendant, and against the plaintiffs, with costs in both courts.