Lively v. Mann

• Decision Date: 04 May 1909
• Court: West Virginia Supreme Court
• Parties: THOMPSON & LIVELY. v. MANN et al.

64 S.E. 920

(65 W. Va. 648)

THOMPSON & LIVELY.

v.MANN et al.

Supreme Court of Appeals of West Virginia.

May 4, 1909.

1. Executors and Administrators (§ 96^*)— Contracts of Administrator—Validity.

The general rule, subject to few exceptions, is that a personal representative cannot charge the estate by contracts originating with himself, although for the benefit and in the interest and on behalf of the estate; such contracts binding him only in his private capacity.

[Ed. Note.—For other cases, see Executors and Administrators, Cent. Dig. § 410; Dec. Dig. i§ 96.*]

2. Executors and Administrators (§ 535*)— Liabilities on Bonds — Conclusiveness of Adjudication Against Principal.

A judgment at law against an administrator de bonis testatoris on such contracts will not estop the surety on his fiduciary bond in a subsequent suit in equity to charge him with the payment of such judgment.

[Ed. Note.—For other cases, see Executors and Administrators, Dec. Dig. § 535.*]

3. Executors and Administrators (§ 529*)— Bond of Administbatob — Liability of Surety.

A surety on the fiduciary bond of a personal representative is not liable thereon for obligations of the fiduciary contracted after the death of the decedent, although in the interest and for the benefit of the estate.

[Ed. Note.—For other cases, see Executors and Administrators, Dec. Dig. § 529.*]

4. Executors and Administbators (§ 51*)— Assets—Judgment in Action for Wrongful Death.

Money recovered in an action by an administrator pursuant to sections 3488, 3489, Code 1906, for causing the death of his decedent by wrongful act, neglect, or default, does not constitute general assets of the estate of such decedent in the hands of the administrator to be administered, and liable for his debts, and a judgment at law against the administrator de bonis testatoris constitutes no lien or charge on such fund. Such money belongs to the particu lar persons who by law are entitled thereto.

[Ed. Note.—For other cases, see Executors and Administrators, Dec. Dig. § 51.*]

5. Executors and Administrators (§ 530*)— Settlement by Administrator — Sub-charging Settlement.

Where an administrator has recovered and collected money in an action for causing the death of his decedent, and before an order has been made making allowance to the attorney employed in such action for fees, and appropriating and charging thereon a sufficient portion of such fund to pay the same, such administrator has settled his accounts, and been allowed and credited therein with a sufficient sum retained for attorney's fees to cover the fees of such attorney, but not paid to him, a court of equity in a suit by such attorney against the administrator and the surety on his fiduciary bond brought for that purpose will not surcharge and falsify such settlement, respecting the item credited therein for attorney's fees, so as to create a devastavit and render the surety in such fiduciary bond liable for and give decree against him for the amount of such fees. Thompson v. Nowlin, 51 W. Va. 346, 41 S. E. 178, and Crim v. England, 46 W. Va. 480, 33 5. E. 310, 76 Am. St. Rep. 826, distinguished.

[Ed. Note.—For other cases, see Executors

and Administrators, Dec. Dig. § 530.*]

6. Judgment (§ 21*) — Tbial of Issues — Fobmal Requisites—Effect of Ambiguity.

A decree so ambiguous in its terms as to be incapable of being rendered certain within the requirements of the law will be set aside for that reason.

[Ed. Note.—For other cases, see Judgment, Cent. Dig. § 7; Dec. Dig. § 21.*]

(Syllabus by the Court.)

Appeal from Circuit Court, Summers County.

Bill by Thompson & Lively against T. G. Mann and others. Decree for plaintiffs, and defendants appeal. Reversed and remanded.

T. N. Read and T. G. Mann, for appellants.

Thompson & Lively, for appellees.

MILLER, P. This cause was here before upon an appeal by the same appellants from a final decree against them in favor of the plaintiffs. 53 W. Va. 432, 44 S. E. 246. The original bill was held bad principally for the reason that the judgment relied on appeared from the abstract thereof and the execution thereon exhibited with the bill to be a judgment against Mann, not as administrator, but against him individually, although describing him as administrator of the estate of Clarkson; such judgment not being enforceable against Flanagan, the surety, since he had not engaged for Mann's individual debt. Judge Brannon in the opinion pronounced on the former appeal says: "If the final judgment were before us, we might see that it was to be levied of the goods of the deceased in the hands of his administrator, but it is not before us." Numerous cases cited hold that notes, bonds, and contracts signed by and judgments given against persons in thedescriptio persona; are individual contracts and obligations, not binding on the estate or person represented. The case is now before us upon the amended bill, and the final decree thereon in favor of the appellees. The amendment consisted solely in reciting the facts alleged in the original bill, and in filing as an exhibit therewith a certified copy of the judgment referred to, and a renewal of the prayer of the original bill. That judgment was de bonis testatoris for $250, the sum assessed by the jury, less $250 paid and the interest released, and costs, "to be levied of the estate, goods, and chattels of said Sherman Clark, alias H. C. Clarkson, deceased, in the hands of said T. G. Mann to be administered." The bill is framed as a general creditors' bill, to surcharge and falsify the administration accounts, and to show a devistavit, and to recover against the administrator and the surety on his bond the amount of the judgment at law against the principal. This calls upon us to determine the status of the plaintiffs. Are they general creditors of the estate of Clarkson, and entitled to maintain such a suit, or is their claim the individual debt of the administrator? It is a general rule of law, subject to few exceptions, that a personal representative cannot charge the estate by contracts originating with himself, although for the benefit and in the interest and on behalf of the estate, and that for such contracts and claims the remedy is against the executor or administrator in his private capacity; whilst, on the other hand, for the contracts of the decedent, the representative is bound not personally, but in his representative capacity. 2 Woerner. Amer. Law of Admin. § 356, *pp. 756, 757; Croswell on Ex. & Admrs. §§ 656-660; Schouler on Ex. & Admrs. 334, 335, and cases cited; Fitzhugh's Ex'r v. Fitzhugh, 11 Grat. (Va.) 302, 62 Am. Dec. 653; Dangerfield v. Smith, 83 Va. 81, 1 S. E. 599; 18 Cyc. 881; 11 Am. & Eng. Ency. Law, 932, and many cases cited in note 5. In Austin v. Munro, 47 N. Y. 366, cited in this note the court says: "The rule must be regarded as well settled." In Fitzhugh's Ex'r v. Fitzhugh, supra, this rule was applied in a suit for funeral expenses, the court holding that a personal representative cannot be sued as such for services rendered or goods furnished to his testator's or intestate's estate since his death. It is also there decided upon the authority of 2 Saun. R. 117e, note, and Epes' Adm'r v. Dudley, 5 Rand. (Va.) 437, that promises which charge a man as executor cannot be joined with those which charge him personally because the judgment in the one case would be de bonis propriis and in the other de bonis testatoris. Mr. Schouler says: "This doctrine applies to a debt incurred by the representative in employing counsel to advise and assist him in the discharge of his duty"—and so says this court in Hall v. McGregor (decided at the present term) 64 S. E. 736. And Woerner says (page 756), citing many eases, that the estate is not liable to an attorney for his services at the instance of an executor or administrator, but that the latter is himself liable in a suit by the attorney. "Indeed, " says Schouler, "the rule is that executors and administrators cannot, by virtue of their general powers as such, make any contract which at law will bind the estate and authorize a judgment de bonis de-cedentis; but for contracts made by them for necessary matters relating to the estate they are personally liable, and must see to it that they are reimbursed out of the assets." At page 473 he says: "In causes of action wholly accruing after his decedent's death, the personal representative is in general liable individually [citing De Valengin v. Duffy, 14 Pet. 282, 10 L. Ed. 457; Kerchner v. McRae, 80 N. C. 219]. And, wherever an action is brought against an executor or administrator, on promises said to have been made by him after the decedent's death, he is chargeable in his own right and not as representative [citing Wms. Ex. 1771; Cro. Eliz. 91; Cowp. 289; Jennings v. Newman, 4 T. R. 348; Clarke v. Alexander, 71 Ga. 500]." On the question whether funeral expenses constitute a claim against the estate of a decedent there is conflict of authority. 8 Am. & Eng. Ency. Law, 1024, says: "By the great weight of authority the reasonable costs and charges of the funeral constitute a claim against the estate, or more properly a charge upon the estate for which the executor or administrator is liable as such to the extent of the assets in his hands. In such cases the law implies a promise to pay therefor." But this is opposed to the Virginia case cited. And we think it will be found that many of the cases depend on local statutes, or do not support the rule as stated. However, this question is not before us, and is not decided.

This rule upon due consideration seems a wise one. It furnishes proper protection to an estate against waste and extravagance of a personal representative, while working no injustice to him. Section 3280, Code 1906, provides for reimbursing a personal representative for debts contracted by him as such in the distribution of the estate. If he makes improper contracts binding on him personally, the estate is protected,...