Contracts CH. IX. s. 8. dealing in good faith with the tenant for life is to be conclusively taken to have given the best price or rent that could reasonably be obtained, and to have complied with all the requisitions of the Act. with Trustees. Devolution on executors of all contracts not personal. Personal liability by signed writing. Requirement of consideration. Non-abatement of action. Executor not bound to plead a Statute of Limitations. SECT. 9.-Death of Parties after Contract, and Liabilities of On the death of either party to a contract (even though implied only (c)) not so personal in its nature as to render the maxim Actio personalis moritur cum personâ (d) applicable, his executors or administrators may either sue or be sued upon it, but if sued are liable only to the extent of the assets of the party who made the contract. 66 As we have already seen (ante, p. 76) the 4th section of the Statute of Frauds provides that no action shall be brought whereby to charge any executor or administrator upon any special promise to answer damages out of his own estate," unless the agreement on which the action is brought or some note of it is in writing, signed by the party to be charged or his authorised agent. The above enactment does not dispense with the requirement of consideration, and the consideration must appear on the face of the agreement or note of it (e). By R. S. C., Ord. XVII., rule 1, an action does not abate by the death of any of the parties, and C. C. R., Ord. XVII., rule 1, is to the same effect. It has been long considered that an executor is not bound to avail himself of a Statute of Limitations in an action brought against him by a creditor of his testator (f), but the Court of Appeal has declined to extend this exception to the general rule that an executor must do his best for the estate to the case of an oral promise by a father to pay his daughter and her husband 500l., made in consideration of marriage, and therefore invalidated by the Statute of Frauds (g); and it has been held by a (c) Phillips v. Homfray (1883), 24 ante. (d) See Broom's Legal Maxims, 7th ed., by Manisty and Chitty, at p. 681; and see" Devolution of Contracts," Ch. XXV., sect. 3, post. (e) Saunders v. Wakefield (1821), 4 B. & Ald., at p. 600; Rann v. Hughes 1778), 7 T. R. 350, n.; Bradly v. Heath (1830), 3 Sim. 543; Childs v. Monins (1821), 2 B. & B. 460. (f) Lowis v. Rumney (1867), L. R., 4 Eq. 451; Hill v. Walker (1858), 4 K. & J. 166; Midgley v. Midgley, [1893] 3 Ch., at p. 297, per Lindley, L.J., treating as incorrect the dictum of Bayley, J., contra, in McCulloch v. Dawes (1826), 9 D. & R., at p. 43. (g) Rownson, In re, Field v. White (1885), 29 Ch. D. 358, C. A. Contracts with Executors and Adminis trators. Court of Appeal also that an executor who pays a statute-barred CH. IX. s. 9. debt, after a judicial decision that the debt is irrecoverable as being statute-barred, commits a devastavit; and that the creditor who receives payment of such a debt with knowledge of the circumstances is liable to the testator's estate for its repayment (h); the Court being of opinion in each case that the anomaly of allowing an executor to pay a debt barred by a Statute of Limitations ought not to be extended (i). It has been held that the promise of an executor to pay a debt "whenever sufficient effects are received from the estate of the deceased," must be understood to mean sufficient effects in the ordinary course of administration (k). To the general rule that an executor is not personally liable on the contracts of the testator, there is a singular exception in the case of the covenants on a lease. For rent, indeed, if the premises demised yield nothing, he may escape all personal liability by pleading that fact, but it appears to be still law that he is personally liable on the covenant to repair (1). Promise to Personal liability on Covenants of a lease. Tremeere v. Morison. An executor is liable at common law (up to assets only) for the Liability for reasonable expenses of the funeral of his testator, and for such expenses of funeral. expenses only, though he may give no orders for it, if no other person be liable on express contract (m); and a husband executor may retain for himself the funeral expenses of an insolvent wife (n). If an executor or administrator indorse a bill or note, he is per- On bills or sonally responsible thereon, although the instrument was vested notes. in and transferred by him in his representative character (o). So, an executor who makes a note, whereby he promises "as executor," to pay a sum of money "with interest on demand," is personally liable thereon (p). So, where an executor, as such, submits a dispute to arbitration, On awards. and the arbitrator awards that he shall pay a sum of money, he becomes personally liable upon the award (q). (h) Midgley v. Midgley, [1893] 3 Ch. 282, C. A. (i) It is submitted (1) that the distinction taken by the Court both in Rownson, In re, and Midgley v. Midgley, from Hill v. Walker and similar cases, was unsound, and that either all or none of the moral debts which arose in those cases ought in principle to have been discharged by executors; and (2) that the best practical course for executors to take in the case of moral debts of this kind is to consult the beneficiaries so far as practicable. (k) Bowerbank v. Monteiro (1813), 4 Taunt. 844. (1) See Tremeere v. Morison (1834), 1 Bing. N. C. 89, and other cases con- (m) Brice v. Wilson (1834), 8 A. & E. (n) McMyn, In re (1886), 33 Ch. D. (0) King v. Thom (1789), 1 T. R. 487. 460. (q) Riddell v. Sutton (1828), 5 Bing. 200. CH. IX. s. 9. Contracts with Erecutors and Adminis trators. Effect of con firmation by executor, of testator's contract. Executor carrying on business of testator. Joinder of But where an agent, after the death of A., in pursuance of a contract with him made before, sold goods of A., and his administrator confirmed the sale: it was held, that this did not operate as a confirmation of the contract, so as to render the administrator liable thereon (r). So, where a solicitor, acting on the orders of a volunteer, had done work for the deceased's estate by which the estate was benefited, the administrator, not having recognised the contract, was not liable thereunder (s). But where an executor carries on the business of the deceased, either with or without authority, he is personally liable to the creditors with whom he has contracted after the testator's death, and such a creditor cannot take in execution the testator's assets, although as between the executor and the cestuis que trusts, the executor has a right to be indemnified out of the estate, and the profits become assets (t). By R. S. C., Ord. XVIII., rule 5, and similarly by C. C. R., personal and Ord. IV., rule 5, claims by and against an executor or adminisrepresentative claims. trator as such, may be joined with claims by and against him personally; provided the last-mentioned claims are alleged to arise, with reference to the estate in respect of which the plaintiff or defendant sues, or is sued, as executor or administrator. Executor de son tort. Action against residuary legatee. Actions by. An executor de son tort is liable in the same manner as a rightful executor (u). Where an executor has administered assets and handed over residue, a creditor of the testator is entitled to follow the residue to the extent of his debt, and may sue the residuary legatee without joining the executor, whether he has protected himself by notices under the Law of Property Amendment Act, 1859, 22 & 23 Vict. c. 35, s. 29, to creditors to send in claims (x), or not (y). Wherever money due on a contract made with an executor will, when recovered, be assets, he may sue for it in his representative character (z). Therefore, where the defendant ordered a coat of one T., a tailor, but before the coat was finished T. died, and the coat was afterwards finished and delivered by his administratrix : it was held that the value of the coat was recoverable, on a count (r) Campanari v. Woodburn (1854), 15 C. B. 400. (s) Ex parte Phillips (1887), 19 Q. B. D. 234, C. A. (t) In re Evans (1887), 34 Ch. D. 597, C. A.; Pillgrem v. Pillgrem (1881), 18 Ch. D. 93, C. A.; Walker & Elgood, Law of Executors, 2nd ed., p. 228 et seq. (u) Meyrick v. Anderson (1859), 14 Q. B. 719. As to liability of executor of executor de son tort, see Wilson v. Hodson (1872), L. R., 7 Ex. 84. (a) Clegg v. Rowlands (1867), L. R., 3 Eq. 368. (y) Hunter v. Young (1879), 4 Ex. D. 256, C. A. (*) Abbott v. Parfitt (1871), L. R., 6 Q. B. 346; Moseley v. Rendell (1871), L. R., 6 Q. B. 338; per Cur., Heath v. Chilton (1844), 12 M. & W. 622, 637. Contracts with Particular Parties (Executors and Adminis trators). Action by for goods sold and delivered by her as administratrix (a). So, CH. IX. s. 9. where A. agreed to do certain work, and died before it was begun, and his executors did the work, using the materials of A.; it was held that the executors might sue, in that character, for the value of the materials (b); and in such a case, they might also sue for work and labour as executors (c). So an executor may sue, in that character, for goods sold by him in the course of carrying on executorand continuing, as executor, the testator's business-although contd. the goods were acquired by the executor after his testator's death -provided they formed part of the assets (d). And he may likewise sue, as such, for money paid by him as executor (e); for money had and received to his use as such (ƒ); or upon an account stated with him concerning moneys due to the testator, or to the plaintiff as executor (g). Where a passenger on a railway was injured by an accident, Railway and, shortly afterwards, died in consequence: it was held that his passenger. executrix might recover, in an action against the company for breach of contract, the damage caused to the personal estate of the deceased, in his lifetime, from medical expenses incurred, and from loss occasioned by his inability to attend to business (h). And, perhaps, an executor may sue, in his representative character, for money lent by him out of the assets (i). The personal contract of a corporation sole, though made Corporation for the benefit of himself and his successors, passes to his sole. executor (k). And where A. had been employed to superintend the completion of certain works as consulting engineer, on the terms that the works were to be completed in fifteen months, and that he was to be paid 5001. for his services, in equal quarterly instalments; and before the works were completed, but whilst two quarterly instalments which had become due were still unpaid, A. died: it was held, that although, by the death of A., the contract was at an end, his administrator was still entitled to recover those instalments by action in that capacity (l). (h) Bradshaw v. Lancashire and Yorkshire Railway Company (1875), L. R., 10 C. P. 189; and the rule is that if the estate of the deceased is damnified the action survives; Peck v. Gurney (1873), L. R., 6 H. L. 377; Twycross v. Grant (1878), 4 C. P. D. 40 ; Hatchard v. Mege (1887), 18 Q. B. D. 771. (i) See Webster v. Spencer (1820), 3 B. & Al. 360; 22 R. R. 427; Richardson v. Griffin (1816), 2 Chit. 325. (k) Howley v. Knight (1849), 14 Q. B. 240, 255. (1) Stubbs v. Holywell Railway Company (1867), L. R., 2 Ex. 311. Service con tracts of deceased, right to sue on. CH. IX. s. 9. Contracts with Erecutors and Administrators. Payment and compounding of debts by executor. When right of action vests. But where a special contract was entered into by A., to do the whole of certain work for B., for a stated sum; and, before the completion of the work, A. died-after which, B. arranged with C. to complete, and C. did complete the work on his own account, and then became administrator of A.; it was held that C. could not sue B., as administrator, on the common counts, for the work done by A., alleging that B. was indebted to A. in his lifetime; notwithstanding the special contract was held to have been rescinded by the arrangement between B. and C. (m). By sect. 21 of the Trustee Act, 1893, 56 & 57 Vict. c. 53, which has taken the place of the repealed sect. 37 of the Conveyancing, &c., Act, 1881, and applies to executorships, administratorships and trusts constituted or created either before or after the commencement of the Act of 1893, an executor or administrator may pay or allow any debt or claim (n) or any evidence that he thinks sufficient, and may accept any composition for any debt and allow any time for payment for any debt, and may compromise, submit to arbitration or otherwise settle any debt, claim, or thing whatever relating to the testator's or intestate's estate. A right of action vests in both an executor and an administrator, from the time of the death of the testator or intestate (o). (m) Crossthwaite v. Gardener (1852), 18 C. B. 640. (n) Including a claim by a co-executor: Houghton, In re, Hawley v. Blake, 73 L. J., Ch. 317, per Kekewich, J. (0) Welchman v. Sturgis (1849), 13 Q. B. 552; Foster v. Bates (1843), 12 M. & W. 226; Woolley v. Clarke (1822), 5 B. & Al. 744. |