| Mo. | Oct 15, 1876
delivered the opinion of the court.
The defendant in this case was the executor of one James Johnson, deceased, and as such he procured Johnson and Rittenhouse, who were engaged in publishing a newspaper, to publish notices for the sale of his testator’s land, and afterwards executed and delivered three several negotiable notes, payable to said Johnson and Rittenhouse, for such publication. The plaintiff, as administrator of the partnership estate of Johnson and Rittenhouse, instituted suit on said notes against defendant. Ammerman, and obtained judgment against him. On the trial it was admitted that the estate of James Johnson was insolvent, and objection was made to the introduction of the notes in evidence, which was overruled, and judgment rendered against defendant de bonis propriis.
The questions presented for determination are: 1st. Is the defendant liable in his individual or representative capacity, and if liable, is there a sufficient consideration to support the promise to pay ? *
The individual liability of defendant is in a great measure to be determined from the character of the notes themselves. The
Three months after date I promise to pay to the order of Johnson and Rittenhouse the sum of fifteen dollars for value received, negotiable and payable without defalcation or discount, and with interest from date, at the rate of ten per cent, per annum, and if the interest be not paid annually, to become as principal and bear the same rate of interest.
P. H. Ammermann.
Executor of last will of James Johnson, deceased.
It has been repeatedly held that an administrator can maintain an action in his own, individual name, on a note made payable to him “as administrator, etc.,” or “as executor, etc.;” the words “administrator, etc.” being mere words descriptive of his office or title to be rejected as surplusage or as descriplio personae.
No reason is perceived why this rule of construction should be departed from in the present instance, especially when the notes themselves contain no words indicating an intention or purpose to charge the assets of the intestate with their payment. If such had been the intention of the parties, or the maker of the note, it could easily have been expressed on the face of the paper, and in the absence of such an expression it cannot be inferred.
The notes show that the amounts named therein were -to be paid at a future day with a rate of interest agreed upon, with which the defendant had no right in his capacity of executor to charge the estate, by his own personal obligation. Such a writing from these facts alone appearing upon it might well be construed to be the personal undertaking of the executor. (2 Vol. Will, on Exec’r 1613.) If the notes are to be regarded as the individual notes of. the defendant, then it is said the promise to pay is without consideration. The notes import a consideration, and it was for the defendant to show that they were given without consideration. For this purpose it would have been competent for defendant to show that at the time the notices were published by Johnson and Rittenhouse at his request, the estate alone was to be looked to for the work done, and in the absence of
It is said in (1 Pars. Bills 161,) that an administrator can only bind himself by his contracts; he cannot bind the assets of the deceased. If he make, indorse, or accept negotiable paper, he will be personally liable even if he adds to his -own name the name of his office, as signing for example: “ A. as an executor of B.” for this will be only part of his description, or will be rejected as surplusage. But if he choose to'exclude his personal liability expressly as by the words, “I promise to pay out of the assets of C. D. and not otherwise, then he is only bound as far as the assets extend.” In the case at bar the executor could have limited his liability to the payment of the debt out of the assets of the estate. This, however, he has not done and the contract must be enforced as he has made it, and under it the only judgment which could have been rendered was a judgment de bonis propriis.
In the case of Woodbridge vs. Draper, (15 Mo. 327,) an analogous principle is recognized. It is there held that when an administrator sues upon a contract where the cause of action accrued to the intestate during his lifetime, and fails in the action the judgment for costs will be de bonis lestatoris ; but where the cause of action accrues to the administrator after the death of the intestate, and he sues and fails to recover, judgment for costs will be rendered against him de bonis propriis in his personal character. In such case, however, on a proper showing to the probate court having the estate in charge, he may be allowed his costs out of the assets of the estate. So in the case at bar Johnson andRittenhouse, the publishers, had a right to look to the executor for the costs of publishing the notices, and the executor a right to look to the assets of the testator. In this particular the case we are considering is distinguishable from the cases to which we have been cited ; for in most of them the promise of the executor or administrator related to the payment of debts created by the testator or intestate in his lifetime, and in such cases it has been held where there were neither assets, nor forbearance on the part
We think the judgment on the facts of the case was rendered for the right party and it will therefore be affirmed,