Same - Contracts Within Section 4

38. The fourth section of the English statute, which has been substantially followed in most of the states, enacts that "No action shall be brought,

(a) "Whereby to charge any executor or administrator upon any special promise, to answer damages out of his own estate;

(b) "Or whereby to charge the defendant upon any special promise to answer for the debt, default, or miscarriages of another person;

(c) "Or to charge any person upon any agreement made upon consideration of marriage;

(d) "Or upon any contract or sale of lands, tenements, or hereditaments, or any interest in or concerning them;

(e) "Or upon any agreement that is not to be performed within the space of one year from the making thereof; "Unless the agreement upon which such action shall be brought, or some memorandum or note thereof, shall be in writing, and signed by the party to be charged therewith, or some other person thereunto by him lawfully authorized." 20

Atl. 433. Contra: Cummings v. Arnold, 3 Mete. (Mass.) 4S6, 37 Am. Dec. 155; Stearns v. Hall, 9 Cush. (Mass.) 31; Whittier v. Dana, 10 Allen (Mass.) 326; Negley v. Jeffers, 28 Ohio St. 90. See "Frauds, Statute of," Dec. Dig. (Key-No.) § 181; Cent. Dig. §§ 288, 284.

17 Bonicamp v. Starbuck, 25 Okl. 483, 106 Pac. 839. See "Frauds, Statute of," Dec. Dig. (Key-No.) § 181; Cent. Dig. §§ 288, 284.

18 Blake v. J. Neils Lumber Co., Ill Minn. 513, 127 N. W. 450; Gerard-Fillio Co. v. McNair, 68 Wash. 321, 123 Pac. 462. See "Frauds, Statute of," Dec. Dig. (Key-No.) § 131; Cent. Dig. §§ 283, 284.

19 Warden v. Bennett, 145 Ky. 325, 140 S. W. 538; Gerard-Fillio Co. v. McNair, 68 Wash. 321, 123 Pac. 462. And see post, p. 533. See "Frauds, Statute of," Dec. Dig. (Key-No.) § 140; Cent. Dig. §§ 15G, 342.

20 8 St. at Large, 405.

Same - Promise By Executor Or Administrator

39. The statute applies only to promises -

(a) To answer for debts or liabilities of the deceased, and

(b) To answer for them out of the property of the promisor.

An executor or administrator may sue or be sued upon obligations devolving upon him as the representative of the deceased, and he may be compelled to carry out the directions of the deceased in respect of legacies, or to give effect to the rules of law relating to the division of the estate of an intestate; but in neither case is he bound to pay anything out of his own pocket. His liabilities are limited by the assets of the deceased. He may, however, if he chooses, to save the credit of the deceased, or for any other reason, make promises to answer for damages or pay debts - which is included in the expression, "answer damages" - out of his own estate; but, in order that the promise may be binding on him, it must be in writing, signed by him or his agent.

The statute only applies to promises to answer for debts or liabilities of the decedent. It does not apply to original undertakings by the executor or administrator, and a promise, therefore, by an executor to pay the heir money if he will forbear further opposition to the probate of the will, is not within the statute.21 Nor does it apply to promises to pay debts of the decedent out of the assets of the estate.22