If the obligation due from a fiduciary arises not simply from the office which he holds but from a contract originally made by him, he is personally bound unless the contrary is expressly provided. This is true of an executor,50 a trustee,51 a guardian,52 though he is entitled to discharge the obligation from the beneficiary's estate if it was legally incurred for the benefit of the estate. A new promise or part payment in such a case would seem to differ in no degree from a similar acknowledgment made by any debtor. If, however, the original obligation did not bind the fiduciary personally, the question may be raised: first, whether the fiduciary incurs a personal liability by a new promise and, second, whether the estate is made liable by such a promise. As to the first point, Lord Mansfield held that a promise to pay a legacy by an executor, who had assets sufficient for the purposes, bound him personally;53 but the contrary was held by the House of Lords in regard to a promise by an executor to pay a debt of his testator;54 and at the present day the executor would doubtless not generally be held personally on a promise made without present consideration to pay either a legacy,55 or a debt due from the testator.56
As to the second question, that which concerns the liability of the estate, the law is in considerable conflict. Many decisions, especially the older ones, hold that a new promise or part payment by an executor or administrator, even after the debt has become completely barred, revives the liability of the estate to the same extent as if made by the debtor himself.57 The decisions of most jurisdictions, however, hold that an executor or administrator cannot revive indebtedness of the deceased, at any rate after it has once become barred; 58 but in many of these jurisdictions a new promise or part payment by an executor or administrator made before the statute has completely run, will start a new statutory period.59 In other States the executor or administrator has no power to extend liability on the debt either before the statute has run or afterwards.60 A remark made by Lord Tenterden61 to the effect that though a new promise by an administrator or executor might be effective, such a new promise would not be implied from an admission of indebtedness (as would be the case with an ordinary debtor) has also had some slight following,62 but would probably not now be relied upon. In so far as an executor's promise has legal effect, the same effect would probably be given to a promise implied in fact from an admission as to an express promise.63 There are few decisions in regard to new promises by fiduciaries other than executors or administrators. A guardian has been held incapable of imposing a liability upon his ward's estate in this way,64 unless the new promise was made before the statute had completely run.65 A Vice Chancellor's decision in England held a trust estate bound by the acknowledgment of a trustee.66 On principle the effect of a new promise by a fiduciary upon the estate must depend on the powers reasonably appropriate, and therefore given by law, to the fiduciary in question. A right to revive a debt already barred certainly seems beyond what the law should give. On the other hand, it would not seem unreasonable to imply a power effectively to promise to pay a debt which is at the time enforceable, the promise being made perhaps in order to get an extension of time for the benefit of the estate, and frequently leading the creditor because of bis natural reliance on the promise to refrain from attempting to enforce his claim until after statutory period has expired, even though he makes no bargain to forbear.
558; Harper v. Fairley, 53 N. Y. 442, 445.
50 See infra, Sec. 310.
51 Infra, Sec. 312.
52 Infra, Sec. 314.
53 Atkins v. Hill, Cowp. 284; Hawkes v. Saunders, Cowp. 280. Jennings v. Newman, 4T.R. 347, 348. See also Beech v. Kennegal, 1 Ves. Sen. 123, 126.
54 Rann v. Hughes, 7 T. R. 360 n. and see Dowse v. Core, 3 Bing. 20 (reversed on another point in 6 B. & C.
255); Powell v. Graham, 7 Taunt. 581; Ashby v. Ashby, 7 B. & C. 444.
55 Pratt v. Humphrey, 22 Conn. 317, 322; Smith v. Carroll, 112 Pa. 390, 4 Atl. 24; Dunham v. Elford, 13 Rich. Eq. 190, 94 Am. Dec. 162; Adams v. Adams, 16 Vt. 228. See also Hay v. Green, 12 Cush. 282.
56 Rositzke v. Meyer, 95 N. Y. Misc. 366,159 N. Y. 8. 464, 176 N. Y. App. D. 193, 162 N. Y. S. 613. But see Burt v. Hereon, 66 Pa. 400, 404; Clag-horn's Est., 181 Pa. 608, 614, 37 Atl 921.
57 Smith v. Poole, 12 Sim. 17; In re Macdonald,  2 Ch. 181; Townee v. Ferguson, 20 Ala. 147; Chambers v. Fennemore's Adm., 4 Harr. (Del.) 368; Trimball v. Marshall, 66 Ia. 233, 23 N. W. 645; Thomas v. Daniel's Adm., 7 Ky. L. Rep. 98; Northcut's Adm. v. Wilkinson, 12 B. Mon. 408; Fledder man v. Fledderman, 112 Md. 226, 76 Atl. 86; Foster v. Starkey, 12 Cush. 324 (see also Fisher v. Metcalf, 7 Allen, 209; Siattery v. Doyle, 180 Mass. 27, 61 N. E. 264. But the special statute limiting rights against estates to two years cannot be waived by an executor or administrator as as to bind the estate; Waltham Bank v Wright, 8 Allen, 121); Preston v. Cutter, 64 N. H. 461, 13 Atl. 874; Shreve v. Joyce, 36 N. J. L. 44, 13 Am. Rep. 417; Hewes v. Hurff, 69 N. J. L. 263, 55 Atl. 275; Rogers v. Rogers, 3 Wend. 503, 20 Am. Dec. 716; Heath v. Grenell, 61 Barb. 190; McLaren v. McMartin, 36 N. Y. 88 (but see Hamlin v. Smith, 72 N. Y. App. D. 601, 76 N. Y. S. 258). See also Ricketts v. Ricketta' Heirs, 4 Lea, 163; Tasewell Ex. v. Whittle's Adm'r, 13 Gratt. 329.
58 Thompson v. Peter, 12 Wheat. 565, 6 L. Ed. 730; Steele v. Steele's Adm'r, 64 Ala. 438, 38 Am. Rep. 15; Lee's Adm'r v. Downey, 68 Ala. 98; Hicks v. Hicks, 113 Ark. 596, 167 S. W. 95; Vrooman v. Li Po Tai, 113 Cal. 302, 45 Pac. 470; Peck v. Botaford, 7 Conn. 172,18 Am. Dee. 92; Ensign v. Batter-son, 68 Conn. 298, 36 Atl. 51; House v. Peacock, 84 Conn. 54, 78 Atl. 723 (see also Winchell v, Sanger, 73 Conn. 399, 47 Atl. 706, 66 L. R. A. 935); Gailey v. Washington's Ex'r, 2 Harr. (Del) 204; Patterson v. Cobb, 4 Fla. 481 (see also Deans v. Wilooxon, 25 Fla. 980,1036, 7 So. 163); Riser v. Snoddy, 7 Ind. 442, 65 Am. Deo. 740; Hanson v. Towle, 19 Kans. 273; Romero's Succession, 31 La. Ann. 721; Driscoll's Succession, 125 La. 287, 51 So. 200; Pole v. Simmons' Adm., 49 Md. 14; Sanders v. Robertson, 23 Miss. 389; Huntington v. Bobbitt, 46 Miss. 528; Bambrick v. Bambrick, 157 Mo. 423,58 S. W. 8; Hamlin v. Smith, 72 N. Y. App. D. 601, 76 N. Y. S.258; Oates v. Liley, 84 N. C. 643; Frits v. Thomas, 1 Whart. 66,29 Am. Dec. 3; Clark v. McGuire's Adm'x, 35 Pa. 259; Moore v. Hillebrunt, 14 Tex. 312, 65 Am. Deo. 118; Vinson v. Whitfield (Tex. Civ. App.), 133 S. W. 1095; Seig v Acord, 21 Grat. 365, 8 Am. Rep. 605; Smith v. Pattie, 81 Va. 654; Bank of Montreal v. Buchanan, 32 Wash. 480, 73 Pac. 482; Stiles v. Laurel Fork Coal Co., 47 W. Va. 838, 35 S. E. 986.
59 Marietta Savings Bank v. Janes, 66 Ga. 286; Holmes v. Bartlett, 160 111. App. 443; Succession of Patrick, 30 La. Ann. 1071; Holly v. Gibbons, 176 N. Y. 520, 68 N. E. 889, 98 Am. St. Rep. 694; Roeitzke v. Meyer, 95 N. Y. Misc. 356, 159 N. Y. S. 464,176 N. Y. App. D. 193, 162 N. Y. S. 613; Grady v, Wilson, 115 N. C. 344, 20 S. E. 518, 44 Am. St. Rep. 461; Johnson v. Ballard, 11 Rich. L. 178; Divine v. Miller, 70 S. C. 225, 49 S. E. 479, 106 Am.
St. Rep. 743; and see oases cited in the preceding note.
60 Dern v. Oben, 18 Idaho, 358, 110 Pac. 164, L. R. A. 1918 B, 1016; Forney v. Benedict, 5 Pa. 226; Clagborn's Estate, 1S1 Pa. 000, 60S, 37 Atl. 918, 921; Stiles v. Laurel Fork Coal Co., 47 W. Va. 838, 36 3. E. 986; Findley v. Cunningham, 53 W. Va. 1,44 S. E. 472.
61 In Tullock v. Dunn, R. & M. 416.
62Thompson v. Peter, 12 Wheat. 565, 6 L. Ed. 730; Oakes v. Mitchell, 15 Me. 360; Bunker v. Athearn, 35 Me. 364.
63 Darby &. Bosanquet, Statute of limitations (2d ed.); 92 Holmes v. Bartlett, 160 111. App. 443.
64 Clement v. Sigur, 29 La. Ann. 798; Stone v. McGregor, 99 Tex. 51,87 S. W. 334. Bee also Weidenhammer v. Mo-Adams, 52 Ind. App. 98, 98 N. E. 883. But see First Nat. Bank v. Bangs, 91 Kan. 54, 136 Pac. 916.
65Gay v. Hebert, 44 La. Ann. 301, 10 So. 775.
66St. John v. Boughton, 2 Jurist, 413.