61Lyman v. National Bank of the Republic, 181 Mass. 437, 438, 63 N. E. 923, and see cases in the following

62 In re Johnson, 15 Ch. D. 648; Dowse v. Gorton, [1891] A. C. 190; Foxworth v. White, 72 Ala. 224; Rosea' Estate, 80 Cal. 166, 22 Pac. 86; Stephens v. James, 77 Ga. 139, 3 S. E. 16; Miller v. Didisheim, 95 111. App. 321; Howe v. Richardson, 186 Mass. 269, 71 N. E. 543; Laible v. Ferry, 32 N. J. Eq. 791; Doolittle a. Willet, 57 N. J. L. 398, 31 At!. 386; Willis v. Sharp, 113 N. Y. 586, 21 N. E. 705, 4 L. R. A. 493; Decillis v. Mascelli, 152 N. Y. App. D. 304, 306, 136 N. Y. 8. 573; Braim v. Braun, 14 Manitoba; 346. Cf. Dwyer v. Kalteyer, 68 Tex. 554, 5 8. W. 75, holding that an executor is not liable to creditors where a statute authorised the executor to continue the business. And Fleming v. Kelly, 18 Col. App. 23, 69 Pac 272, holding the executor not liable where the business was carried on under the order of the Probate Court.

63 Brice v. Wilson, 8 A. & E. 349, n.; Corner v. Shew, 3 M. & W. 350; True-man v. Tilden, 6 N. H. 201. For such expenses, unless actually contracted for by the representative, it seems his liability would be limited to the extent that there were assets in the estate. See besides cases cited above, Hapgood v. Houghton, 10 Pick. 154; Patterson v. Patterson, 59 N. Y. 674; France's Estate, 76 Pa. 220.

64Farball v. Farhall, L. R. 7 Ch. App. 123; Massey v. Doke, 123 Ark. 211, 185 S. W. 271; Taylor v. Mygatt, 26 Conn. 184; Bott v. Barr, 95 Ind. 243; Manning v. Osgood, 151 Mass. 148, 23 N. E. 732; O'Brien v. Jackson, 167 N. Y. 31, 60 N. E. 238; LeBaron v. Barker, 143 N. Y. App. D. 492, 127 N. Y. S. 979.

65 Tucker v. Grace, 61 Ark. 410, 33 8. W. 530; McKee v. Sober, 138 Cal. 367, 71 Pac. 438, 649; Long v. Rodman, 68 Ind. 68; Clark v. Sayre, 122 Iowa, 591, 98 N. W. 484; Brown v. Quinton, 80 Kans. 44, 102 Pac. 242, 25 L. R. A. (N. S.) 71; Clopton v. Gholaon, 63 Miss. 466; Howell v. Myer, 105 Miss. 771, 63 So. 233; State ex rel. Kelly p. Second Judicial Dist. Court, 25 Mont. 33, 63 Pac. 717; Wight v. Dolenty, 53 Mont. 168, 162 Pac. 387; Wait v. Holt, 58 N. H. 467; Platt v. Platt, 106 N. Y. 488, 12 N. E. 22; Parker v.

Sec. 311. Executors and administrators may by special stipulation exempt themselves from personal liability. Even though the consequence of a stipulation in an agreement with an executor or administrator that he shall be subject to no personal liability is that no contract whatever arises for lack of a contracting party, plain words of exemption must be and are given effect.69 Though no contract with the estate, as such, is possible, it is possible that the executor shall agree to perform only to the extent that the assets of the testator's estate permit, and that the person with whom the executor contracts shall accept such a limited promise in return for his own promise or performance.69a Probably such an agreement often more nearly expresses the intent of the parties than the obligation which is inferred by the law generally prevailing. In a New York case,70 Selden, J., said: "I am of opinion, that where the contract itself is ostensibly made in behalf of the estate, and relates exclusively to matters in which the executor or administrator has no personal interest, if the latter, in making the contract, describes himself as executor, etc, the presumption is, that he intended to bind the estate and not himself. This would be found in most cases to be in accordance with the facts, and such I think is the legal inference." It is probable that this language in freeing the executor from liabilities goes beyond the warrant of most decisions though not beyond what is reasonable. According to the weight of authority even though the identification of the estate for which the executor is acting is disclosed, and though the business concerns the estate, in the absence of language necessarily showing a contrary intent, the executor entering into a contract binds himself personally.71 In view of the fact that unless the executor or administrator is a party to a contract made by him, no contract can exist, it follows in formal contracts, such as negotiable instruments, even more clearly than in regard to such instruments signed by agents or by officers of a corporation with the addition of an official designation,72 that the signature of an executor or administrator with the addition of his title renders him personally liable.73 A note, however, which is signed "Estate of A,

Day, 166 N. Y. 383, 49 N. E. 1046; In re Norton's Est., 162 N. Y. S. 216; Besancon v. Wegner, 16 N. Dak. 240, 112 N. W. 966; Thomas v. Moore, 52 Ohio St. 200, 39 N. E. 803; Waite v. Willis, 42 Ore. 288, 70 Pac. 1034; In re Sullivan's Estate, 36 Wash. 217, 78 Pac. 945; Thompson v. Mann, 65 W. Va. 648, 64 8. E. 920, 22 L. R. A. OH, S.) 1094, 131 Am. St. Rep. 987. But see Greene v. Grimshaw, 11 111. 389. 64De Valengin's Adm. v. Duffy, 14 Pet. 290, 291, 10 L. Ed. 467; Terry v. Furguson, Adm., 8 Port. (Ala.) 500; Crowder v. Shackleford, 35 Miss. 321, 359; Seheibeler v. Albee, 114 N. Y. App. D. 146, 99 N. Y. S. 706; Conger v. Atwood, 28 Ohio St. 134,22 Am. Rep. 362; Thomas v. Moore, 52 Ohio St. 200, 205, 39 N. . 803.

67Ashby v. Ashby, 7 B. & C. 444; Haynes v. Forebaw, 11 Hare, 93, 104; Steele v. McDowell, 9 Sm. & M. 193; Wall v. Kellogg-a Ex., 1ft N. Y. 385; Arbuckle v. Tracy, 15 Ob. 432; Conger v. Atwood, 28 Ohio St. 134, 141, 22 Am. Rep. 362; cf. Farhall v. Farhall L. R. 7 Ch. App. 123.

68 Ferrin v. Myrick, 41 N. Y. 315; Fitzsimmons v. Safe Deposit & Trust Co., 189 Pa. 514, 42 Atl 41.

69 Long v. Rodman, 58 Ind. 58, 62; Grafton Nat. Bank v. Wing, 172 Mass. 513, 52 N. E. 1067, 43 L. R, A. 831, 70 Am. St. Rep. 303; Germania Bank v. Michaud, 62 Minn. 459,65 N. W. 70, 30 L. R, A. 286, 54 Am. St. Rep. 653; Douglass v. Leonard, 17 N. Y. S. 591, 593.

69a See infra, Sec. 312, as to such promises by trustees.

70 Chouteau v. Suydam, 21 N. Y. 179, 182.

71See cases cited in preceding section.

72 See supra, Sec. 299, as to such obligations.

73 Childs v. Monins, 2 B. & B. 460; Christian v. Morris, 50 Ala. 585;

Higgins v. Driggs, 21 Ha. 103; Mc-Farlin v. Stinson, 66 Ga. 396; Lynch v. Kirby, 65 Ga. 279; Deas v. McRea, 65 Ga. 531; Hopson v. Johnson, 110 Ga. 283, 34 S. B. 848; Glisson v. Weil, 117 Ga. 842, 45 S. E. 221; Dunne v. Deery, 40 Is. 261; Rittenhouse v. Ammennan, 64 Mo. 197, 27 Am. Rep. 215; One v. Ritchie, 12 Fhila. 231; East Tennessee Iron Manufacturing Co. v. Gaskell, 2

B executor" has been held not to impose a personal obligation upon the executor,74 though the result of so holding, is that no valid note exists.

And it seems that the Uniform Negotiable Instruments Law gives the same effect to any negotiable bill or note where the executor being authorized so to do signs as such and discloses either in the body of the instrument or in the signature the estate for which he is acting.75

The executor or administrator is entitled to indemnity from the testator's estate for all liabilities rightfully incurred 76 and creditors may by subrogation enforce this right of indemnity against the estate, in case of inability to collect their claims from the executor or administrator because of insolvency or other reason.77 But a direct action for judgment against the goods of the deceased or a direct enforcement in the Probate Court of their claims by the creditors is not permissible.78 And it should be observed that the authority of an executor or administrator implied from his office, to enter into executory contracts on behalf of his estate is quite limited. It is beyond the scope of this book to consider in detail when his contract is of such a character that he is entitled to indemnification from the estate, and when, because he has gone beyond his legal authority, the liability originally cast upon him by his contracts cannot be shifted.

Lea, 742. So in a written contract for the sale of land one who promises in the first person is liable personally, though he adds to his signature the designation of administrator of a named estate. Melone v. Ruffino, 129 Cal. 514, 62 Pac. 93, 79 Am. St. Rep. 127. But see contra, Chouteau v. Suy-dam, 21 N. Y. 179.

74 Grafton Natl. Bank v. Wing, 172 Mass. S13, 52 N. E. 1067, 43 L. R. A. 831, 70 Am. St. Rep. 303. See also Germania Bank v. Michaud, 62 Minn. 469, 65 N. W. 70, 30 L. R. A. 286, 54 Am. St. Rep. 653, and infra, {312, as to similar notes given by trustees.

75See infra, Sec. 1144.

76 Tucker v. Grace, 61 Ark. 410, 33 S. W. 530,

77 Dome v. Gorton, [1891] A. C. 190; Ferrin v. Myrick, 41 N. Y. 315, 325; Willis v. Sharp, 113 N. Y. 586, 21 N. .

705, 4 L. R. A. 493, 115 N. Y. 396, 22 N. . 149, 5 L. R. A. 636; O'Brien p. Jackson, 167 N. Y. 31, 60 N. E. 238; LeBaron v. Barker, 143 N. Y. App. D. 492, 127 N. Y. S. 979; Douglas e. Eraser, 2 McCord Ch. 105. But see contra, Wade p. Pope, 44 Ala. 690. See also the discussion of Alabama decisions in Etowah Mining Co. v. Wills Valley Mining Co., 143 Ala. 623, 39 So. 336. See further the discussion of a similar right against a trust estate, infra, Sec. 313.

78 Farhall v. Farhall, L. R. 7 Ch. App. 123; Pike v. Thomas, 62 Ark. 223, 35 S. W. 212, 65 Ark. 437, 47 S. W. 110; Parker v. Mayo, 72 Ark. 513, 83 S. W. 324; Ferrin v. Myrick, 41 N. Y. 315; LeBaron v. Barker, 143 N. Y. App. D. 492, 127 N. Y. S. 979. But see contra, Long v. Rodman, 58 Ind. 58.