41 N.Y. 315, Ferrin v. Myrick

Citation:41 N.Y. 315
Party Name:FOSTER M. FERRIN, Respondent, v. ALBERT G. MYRICK, Administrator of SANFORD HARTMAN, deceased, Appellant.
Case Date:December 21, 1869
Court:New York Court of Appeals

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41 N.Y. 315

FOSTER M. FERRIN, Respondent,

v.

ALBERT G. MYRICK, Administrator of SANFORD HARTMAN, deceased, Appellant.

New York Court of Appeal

December 21, 1869

Cause submitted Sept. 29th, 1869.

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[Copyrighted Material Omitted]

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COUNSEL

H. H. Woodward, for appellant, cited, Beach v. King (17 Wend., 197); White v. Jay (13 N.Y. 83, 86); Wheeler v. Dakin (12 How., 541); Hall v. Folbert (8 How., 428); Meyer v. Nevin (12 J. R., 349); Demer v. Field (7 Cow., 58); Ingwell v. Hegman (3 Camp. 298); Corner v. Shew (3 M. & W., 350 and notes); Rogers v. Price, ex'rs (3 You. & Jer., 28); Gillett v. Hutchinson (24 Wend., 184); Shelley's Case, 1 Salk., 296; Hancock v. Podmore (1 Barn. & Adol., 260); Dayton's Surrogate, 285; Wms. Ex'ors., 831.

M. H. Merwin, for respondent, cited, Hapgood v. Houghton (10 Pick., 154); Matter of Thompson, 41 Barb., 237; Choteau v. Snyder (21 N.Y. 179); Howard v. Powers (6 Ohio, 92);

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Parker v. Lewis (2 Duer, 21); Rogers v. Price ex'rs (3 Young & Jervis, 28); Chaffie v. Cooper (13 M. & W., 252); Noyes v. Blakeman (2 Seld. 567); Camden v. Fletcher (4 M. & W., 378); Parker v. Gainer (17 Wend., 559); Allen v. Bishop (25 W., 415); Dow v. Bockenstone (12 Wend., 543); Butler v. Hempstead (18 Wend., 666.

HUNT, Ch. J.

It is provided by the statute of this State, that all lawful acts done by administrators who may be removed or superseded, shall remain valid, and shall not be impeached by any subsequent revocation of the authority of such administrator. (2 R. S., 79 m., § 47.) The plaintiff's claim stands, therefore, as if Jacob Hartman had continued to be administrator of Sanford Hartman, and the action had been brought against him as administrator.

The contract for the gravestones was proved to have been made. They were of a character suitable to the rank and station in life of the deceased, and to the circumstances of his estate. The defendant, as administrator, had assets in his hands applicable to their payment. Can the action in such case be maintained against the estate, as a matter of course, or is the remedy against the administrator personally? The administrator contracted for the purchase and delivery of the monument. He had a right to contract for stones suitable to the rank in life of the deceased, and to the estate left by him. He had no right to contract for stones of an unsuitable character. Thus, for the grave of a man leaving an estate of $10,000, or $20,000, monuments of which the expense should be $100 or $200, would very likely be deemed suitable and reasonable. If the same individual should leave an estate of but $500, and a family of small children, an expenditure of several hundred dollars for that purpose, probably would not be deemed suitable or reasonable. (Hancock v. Podmore, 1 B. & Ad., 260; 20 Eng. C. L. R.) Whether the particular article is suitable and reasonable, or otherwise, is a question which the seller is not called upon to decide. That question is not left to his decision. It belongs to the administrator. He decides

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it at his peril, to be allowed or disallowed, in the final settlement of his accounts with the surrogate. The seller accepts the judgment and decision of the administrator, acts upon his direction, and makes and delivers the stones or the monument upon his direction and upon his agreement. It is, therefore, most reasonable and proper, that the administrator should be liable himself to the seller, although the estate may not ultimately be liable to him, or to any one else, for the article furnished.

Again, it is to be considered, that the administrator is not the agent of the testator, or of the estate, and therefore allowed to contract in its behalf. We are apt to look upon an administrator as holding a like position to that held by a railroad manager, or a bank president. The latter officer orders and receives at the bank a set of ledgers, with the name of the bank entered in the same. A railroad manager, orders and receives a quantity of rails, which are delivered and laid down upon the track of his company. In each of these cases, it would be quite proper for the jury to find that the purchase was made for the corporation, and not by the officer individually. Not so, however, with the administrator. He has the title to the personal estate. He has no principal behind him for whom he can contract as agent. This is the policy of the law. The estate in the personalty is given, by the law, directly to the administrator. For the purpose of use and sale the title vests in him, and he is held responsible as owner. (1 Wms. Exrs., 530, 539, 546.) As owner, he must account to the persons ultimately entitled to distribution; and as owner, he sells, disposes and contracts, as his judgment dictates. These considerations fix the liability for the debt in question, upon the administrators personally, and not upon the estate. So are the authorities. In Myer v. Cole (12 John. R., 349), the declaration contained three counts. The first for goods sold by the plaintiff's testator to the defendant's testatrix, in their lifetime respectively. The second was for work and labor and the promise, laid as in the first count. The third stated, that the defendants,

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as executors...

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