Davis v. French, 20 Me. 21

20 Me. 21 | Me. | 1841

The opinion of the Court was by

Shepley J.

— Where the cause of action exists against the intestate, and the administrator for a sufficient consideration promises to pay, the action may be brought against him in his own right, and a general judgment should be entered against him. Wheeler v. Collier, Cro. Eliz. 406; Atkins v. Hill, Cowp. 284. But since the statute of frauds such a promise must be in writing. And no judgment can in such an action be entered against the estate of the intestate. Hawkes v. Saunders, Cowp. 289. It was decided in the case of Trevinian v. Howell, Cro. Eliz. 91, where the executor for a sufficient consideration promised to pay a debt due from the testator, and the action was brought against him as executor, that a judgment against him de bonis propriis, was not erroneous. But in Secar v. Atkinson, 1 H. Bl. 102, where the action was against the administratrix, it was decided, that a count on her own promise to pay a debt due from the intestate might be joined with counts on promises of the intestate; and that the proper judgment on all the counts was de bonis testatoris. And Heath J. in delivering the opinion, says, “ this is the common mode of declaring against executors and administrators to save the statute of limitations ; but if it were to be considered as making them personally liable, I do not know, who would ever take out administration.”

The true doctrine on this subject appears to be, that where the cause of action existed against the deceased, the executor or administrator may make himself personally liable by a written promise founded upon a sufficient consideration. And in such case the action should be brought against him in his own right, if the plaintiff would have a judgment against him in preference to one against the estate. A promise from the executor or administrator, as such, to pay a debt due from the deceased may be alleged in an action brought against him as executor or administrator, and in such case the judgment must be de bonis testatoris. But the executor or administrator cannot create a debt against the deceased. And it is immaterial how clearly the intent to do so may be expressed; for having no power to bind the estate he only binds himself by such a contract. And there can therefore be no judgment de bonis testatoris; and the action should be brought declaring against him in his own right. Barry v. Rush, 1 T. R. 691; Sumner v. Williams, 8 Mass. R. 199; Myer v. Cole, 12 Johns. 349.

In this case the contract originated with the administrator and there is no evidence that the debt also did not, and no judgment can be entered against the estate which he represents.

Judgment against defendant generally without costs.