Opinion
December, 1892.
Michael Fennelly, for plaintiff (appellant).
Howe Hummell, for defendant (respondent).
Inasmuch as the action was dismissed by the trial justice, we must assume that it was dismissed on the only ground stated by defendant's attorney on his motion, viz.: "That there is no evidence that she, defendant, bound herself individually," and it is, therefore, unnecessary to consider any of the exceptions in the case, other than that taken by plaintiff to the ruling of the trial justice in granting the motion to dismiss. The defendant in the assignment of the mortgage expressly stated that she held herself personally responsible for the payment of any deficiency. And it was clearly her intention to become personally responsible, although she executed the paper in a representative capacity. She could not, as executrix, bind or make the estate she represented, responsible for any deficiency, and it was not necessary that she should go through the mere form of executing the paper in her individual name, after she had executed the same in her name as executrix, in order to make herself personally responsible.
Her intention was undoubtedly, as therein expressed, to make herself personally responsible for any deficiency; and she could not bind the assets she represented, by any act of hers done in her representave capacity.
The rule must be regarded as well settled, that the contracts of executors, although made in the interest and for the benefit of the estate they represent, if made upon a new and independent consideration, between the promisee and the executor as promisor, are the personal contracts of the executors, and do not bind the estate, notwithstanding the consideration moving from the promisee is such that the executors could properly have paid for the same, from the assets, and been allowed for the expenditure in the settlement of the estate.
The addition of an official character to the signature of executors and administrators, in executing written contracts and obligations, has no significance, and operates merely to identify the person, and not to limit or qualify the liability. Schmittler v. Simon, 101 N.Y. 554. The rule is laid down in Parsons on Bills and Notes, volume 1, page 161, that "An administrator or executor can only bind himself by his contracts; he cannot bind the assets of the deceased." The exception to the ruling of the trial justice in dismissing the complaint was well taken. And the judgment appealed from must be reversed with costs to the appellant to abide the event of the action.
VAN WYCK and McCARTHY, JJ., concur.
Judgment reversed with costs.