17 Mont. 433 | Mont. | 1896
The defendants, in their answer, make their allegations with some vigor of language, but when we arrive simply at the facts set up, the pleading of defendants seems to be that they, as administrators of the Higgins estate, borrowed this money and used it for the estate.
We cite the following remarks from some of the leading text writers upon the law of administration, negotiable instruments, and commercial paper :
‘ ‘ It is a well recognized principle that for liabilities contracted by the personal representative, although for the benefit and in the interest and behalf of the estate, it is not liable to creditors. Disbursements, reasonable, in amount, and for services necessary in the proper discharge of the duties imposed upon them, will constitute a charge in favor of executors and administrators against the estate, although their allowance should leave no surplus to pay creditors of the deceased; but, in the absence of statutory authority, the probate court, as already stated, has no jurisdiction to adjudicate between the personal representative and the creditor. It follows that the estate is not liable to an attorney for his services at the instance of an executor or administrator, but that the latter is himself liable in a suit by the attorney. So for corn fed to the stock of the estate; for the terms of a contract by the administrator in renting the land of the estate. The same holds good in respect of negotiable paper made, indorsed or accepted by him, although he add to his signature his official character; and a, fortiori, where he gives a bond. So where the executor employs a salesman to take charge of the stock in trade belonging to the estate, or a sawyer to saw lumber. So where money is borrowed by pledging property of the estate, unless pledged for the purposes of administration. For the same reason, the estate is not bound by the administrator’s agreement to credit a note payable to his decedent with the value of work done upon the lands of the estate.” (2 Woerner on American Law of Administration, § 356.)
“The executor or administrator of a decedent has no power to bind the latter’s estate by any note or bill which he may
“An administrator or executor cannot bind the decedent’s estate by any negotiable instrument. He can only bind himself. If he make, accept or indorse a negotiable instrument, he will bind himself personally, even if he adds to his own name the designation of his office as personal representative. Thus, if he signs himself ‘A. B., Executor (or administrator) of C. D.,’ or ‘A. B., as Executor of C. D.,’ the representa .tive terms will be rejected as surplusage. And an accommodation indorser, or acceptor, who pays the amount of the instrument, has no claim against the decedent’s estate. But if the bill or note of the personal representative be taken for a debt of the decedent, the estate is discharged from liability, and the representative alone is bound. ” (1 Daniel on Negotiable Instruments, § 262.)
“Where a note or bill is given by an executor or administrator, as such, he will, in general, be individually liable for its payment. So, upon an indorsement by him as executor; or upon his written promise to pay such debt, he having assets of the estate in his hands at the time of giving the promise. This is-true, also, where he has given his note in renewal of one made by his testator. In like' manner, an administrator will be individually liable on a note given by him for personal property purchased for the benefit of the estate. But a note given, by an administrator, and expressed to be ‘for value received by A. (the intestate) and his heirs, ’ has been held to be void . for want of consideration. The mere addition of ‘ad ministrator’ to an acceptor’s signature does not qualify his liability or render the acceptance of a bill conditional. But in general, an executor, like an agent, must expressly limit his promise to payment out of the estate represented in order
It is not pretended that these notes were given for the expenses of administration. This court said, in Dodson v. Nevitt, 5 Mont. 518: “Claims against the estate are those inexistence at the date of the death of the deceased. Other claims against an estate are those incurred by the administrator or executor in settling the estate, and are properly denominated ‘expenses of administration.’ ” The rule seems to be .as laid down by the above-quoted writers.
It is said in Dunne v. Deery, 40 Iowa, 251, a case relied upon by the appellants, as follows: “The rule is very well settled that an administrator or executor cannot bind the assets of the deceased by his promissory note. If he executes a note, and adds to his signature, ‘as executor for’ the deceased, he will nevertheless by personally liable. (King v. Thom, 1 Tenn. R. 489; Aspinwall v. Wake, 10 Bing. 55; Davis v. French, 20 Me. 21; Walker v. Patterson, 36 Me. 273.) But while the administrator will be personally and alone bound upon the note, yet if that for which it was given was legally a claim against the estate, the giving and accepting the note will not, without more, discharge the estate. ’’
Counsel, in argument, cite this Iowa case, as showing that the case at' bar is an exception to the general rule, but it does not appear in the case before us that that for which the note was given was already legally a claim against the estate.
We take the following from another case relied upon by the appellants: McLaughlin v. Winner (Wis.) 23 N. W. 402. ‘‘It is a general rule that, upon all contracts made by an executor or administrator, in the discharge of his duties as such, he is liable personally; and his liability does not depend upon the fact that he has assets in his hands sufficient to discharge the debts so incurred; and the judgment, if any be recovered,
The case at bar, in our opinion, is not an exception to the rule that the administrators are personally liable. It does not appear that the notes given by them were simply an acknowledgment of a former debt existing against the estate and created by the deceased. It does not appear that the money received by the estate upon the notes given was used for the purposes of administration or funeral expenses, if such facts would be important if they existed. It does not appear that the money so obtained was upon any order or permission of a court having power to make such order or give such permission. It does not appear that the money was used in the actual preservation of the estate, as discussed in Dunne v. Deery, supra. We are, therefore, of opinion that this judgment must be affirmed, and it is so ordered.
Affirmed.
