106 N.Y.S. 445 | N.Y. App. Div. | 1907
Ferdinand Sohaettler, ihe'testator, died leaving a widow and four children and -a last will and testament which was duly admitted to probate.. That will contained the following provision :
“ I would hereby suggest to my family my earnest desire that they should • conduct together, if such" a-result can -be amicably arranged, my business of cabinet maker and builder at -the factory now owned by me in Thirty-fourth street in this city, ánd.'whil'e 1 give no specific-directions-fearing some complication may arise therefrom, I nevertheless feel convinced -that the business now in .progress', if properly Conducted and continued by them would result to the- material advancement and benefit of my family and*679 should they elect so to continue said business under the direction of my said executrix the privilege of so doing is granted by this my will. and an earnest wish expressed by me that they shall act harmoniously in the conduct thereof in such manner and on such terms as my said wife and executrix may elect in her discretion, leaving this matter absolutely and entirely with her.”
Letters testamentary were issued to the defendant on August 10, 1893, and acting under the authority of this clause of the will she continued the business of “ F. Schaettler.” It would seem that the defendant had little to do with this business, but it was conducted by George Schaettler, the testator’s son, who was her general representative in managing the business, and on Movember 17, 1904, there was published a notice that the executrix was the person who intended to deal under the name of “ F. Schaettler,” and to continue and carry on stich business of making and dealing in cabinet and architectural woodwork under such name of “ F. Schaettler ” in the city of Mew York, and that was signed by herself as “ Executrix', of the' last, will and testament of Ferdinand Schaettler, deceased-.” It appeared that during the periods that this business was conducted by the testator’s son there was a voluntary" association known as the Association of Interior Decorators and Cabinet Makers of the City of Mew York, and that “ George Schaettler,” the testator’s son, was a member of that association. Meither the testator nor the defendant, however, was a member of that association. There was also an association known as the Building Trades Employers’ Association, but neither the defendant nor her son was ever either an associate or honorary member of that association. On June 13, 1904, George Schaettler applied to the City Trust, Safe Deposit and Surety Company of Philadelphia to procure a bond for $1,000. In this application he stated that his full name and principal place of business was “F. Schaettler, 533-537 W. 54. St. N. Y. C. Estate of F. Schaettler; ” that he had answered that question for the purpose of procuring the above-mentioned bond; “ and in consideration of the execution by the City Trust, Safe Deposit and Surety Company of Philadelphia (hereinafter called the Company) of the bond above applied for, I, (we) do hereby agree for myself, my (ourselves, our) heirs, executors and administrators to pay to the Company upon the execution of the said bond the premium of
O.-n November 17,1904, ijhe - trust company was notified by the-Building Trades Employers’ Association that this bond had .beep.
The first and serious question presented is,.whether upon these facts there is any liability against the estate of Ferdinand Schaettler. In the first place, it is apparent that the estate of Ferdinand Schaettler was not a member of either of these voluntary associar tions. The membership of the Building Trades Employers’ Association, by section 3 of its constitution, consisted of “ any person who employs or any firm or corporation which employs labor in the building industry or who has or which has its individual capital invested in such business, or any person .who, on the date of 'the adoption of this constitution,-was a member in good standing in the Building Trades Association of the City of ¡New York.” Section 4 provides that “ Any employer, firm or corporation holding membership in a trade organization represented in the Board of Governors of the Building Trades Employers’ Association shall be a member of the Association and known as a represented member. * * . * Any person of good- inoral character who is an employer of labor
Assuming that the defendant- would be individually liable, the' question is then presented as to whether the estate is liable. This obligation was not-created as a part of the business which the defendant was canning on under the provisions.of the will tó which reference has been made. So far as appears, the business obtained ho' advantage in consequence of this mémbership of George 'Schaettler in the voluntary association.
It is the settled doctrine of the'courts of common-law that a. debt contracted by an executor after the death of his testator, although contracted by him as executor, binds him individually, and does not bind the estate which- he represents, notwithstanding it may have been contracted for- the benefit of the estate. (Austin v. Munro, 41 N. Y. 360.) “ It has Ibeen held in- numerous, cases that an executor, carrying on á trade under the authority of the will, binds himself individually by his contracts in the trade.” (Willis v. Sharp, 113 N. Y. 586.)
The action is against the defendant-in her representative capacity, and a judgment in this action binds all the estate of the testator,
It follows that the judgment and order appealed 'from must be reversed and a new trial ordered, with costs to the appellant to abide the event. '
Patterson,' E.' J., Laughlin, Clarke and Houghton, JJ., concurred.
Judgment and order reversed, new trial ordered, costs to appellant to abide event.