64 N.Y.S. 518 | N.Y. App. Div. | 1900
From the admission, of - record, in this case, wé must assume the finding of the referee, as to the purchase of the monument by John Lavery, to be correct.
John Lavery was personally. liable for the contract price of the monument purchased by him, and the indebtedness thereby incurred constituted a claim against him, arid not against the .estate of Hugh La.very, in the first instance at least, although purchased by him while acting as administrator of Hugh Lavery, and for the purpose of carrying into effect the wishes of his testator. (Ferrin v. Myrick, 41 N. Y. 315 ; Austin v. Munro, 47 id. 360 ; New v. Nicoll,
The reasons given in the case of Ferrin v. Myrick (supra), at page 319, for holding an administrator or executor personally liable for contracts made by him, instead of the estate, are peculiarly applicable to this case, where a specific sum was bequeathed to the executor in trust for the purpose of purchasing a monument.
J ohn Lavery succeeded to the trust of the executor named, and became the owner of' that trust fund, and personally responsible for its expenditure.
If the assets were not sufficient to realize the amount of such trust fund, he as administrator would be aware of that fact, and if he attempted to carry into effect the desire of his testator, with no funds to meet it, he was still personally responsible, and not the estate.
The referee has found that no assets were turned over to the surviving wife or next of kin, as such; that the defendant, one of four legatees, has received the amount of his legacy, and a case is, therefore, made under sections 1837 and 1841 of the Code of Civil Procedure for the recovery from him of his proportionate share of the purchase price of the monument for which John Lavery, and upon his death his estate, was liable.
The judgment should, therefore, be affirmed.
All concurred.
Judgment affirmed, with costs.
