| Vt. | Jan 15, 1892
The opinion of the court was delivered by
The declaration sets forth a good cause of action, and was properly adjudged sufficient against the causes alleged in the demurer. It commands the attachment of the goods, chattels or estate of Albert Sowles, administrator of Vm. L. Sowles’ estate, and not of the estate of Vm. L. Sowles, of which Albert Sowles is administrator. The words administrator ■of Vm. L. Sowles’ estate, are descriptive of the person named, as the defendant in the suit. If by chance there were two persons of that name in that locality, these descriptive words would ■direct the officer serving the writ to the person intended. The common counts in general assumpsit, constitute the declaration. Those declare that the defendant, viz : Albert Sowles, and that one who holds the office of administrator on the estate •of Vm. L. Sowles, is indebted, and made the promises, to the testator, whose will the plaintiffs are executing. The plaintiffs do not declare, nor seek to recover upon a promise or undertaking of Vm. L. Sowles, the intestate, of whose •estate Albert Sowles is administrator. Inasmuch as the defendant is the legal representative of the estate of Win. L. Sowles, if
As contended by the defendant, an administrator has no authority, as such representative, to create any debts against the estate. He only has authority by virtue of his office, to administer upon the estate; that is, to ascertain both its assets, and debts, and to put the former in condition to pay the latter, if sufficient, and the surplus, if any, in a condition to be distributed to those legally entitled thereto. Whatever proper expenditures
Whether, when .trust or other property not owned by the-estate, has become mingled with it, a suit, may be maintained for its recovery out of the estate against the administrator in his-representative capacity, as was held in De Valengin v. Duffy, 14 Pet. 289, is not involved in this suit and need not be considered.
The execution for the enforcement of the judgment follows-the writ. Rider v. Alexander, 1 D. Chip. 267" court="Vt." date_filed="1814-08-15" href="https://app.midpage.ai/document/rider-v-alexander-6570720?utm_source=webapp" opinion_id="6570720">1 D. Chip. 267; Perry v. Whipple, 38 Vt. 278" court="Vt." date_filed="1865-11-15" href="https://app.midpage.ai/document/perry-v-whipple-6578030?utm_source=webapp" opinion_id="6578030">38 Vt. 278; Wright v. Hazen, 24 Vt. 143" court="Vt." date_filed="1852-01-15" href="https://app.midpage.ai/document/wright-v-hazen-6574725?utm_source=webapp" opinion_id="6574725">24 Vt. 143. As the writ is-against the defendant, not representatively but personally, so-must the judgment and execution be. Rendering judgment against the defendant, “ as administrator,” did not make it a judgment to be enforced out of the property of the estate of which the defendant is administrator, but to be enforced against the defendant’s own property. Adding administrator to his-name when the defendant purchased the horses, did not bind the estate for their payment, but bound the defendant. No more does such addition to his name in’the judgment affect the nature of the judgment, or change it from a judgment to be satisfied out of the defendant’s property, to one to be satisfied out of the. property of the estate. Such addition in making the contract and rendering the judgment might indicate that the debt was contracted by the defendant, in administering upon the estate, and that he claimed that it constituted an item in his administra
This disposes of all the contentions insisted upon in this ■court.
Judgment affirmed.