This section is from the book "The Law Of Contracts", by William Herbert Page. Also available from Amazon: Commercial Contracts: A Practical Guide to Deals, Contracts, Agreements and Promises.
This clause of the statute does not include promises on which the executor or administrator is personally liable, even though made in consideration of property or services for the benefit of the estate, and though he assumes to contract "as executor."1 Thus a promise by an administrator to be personally responsible for legal services rendered the estate,2 or to pay a debt created after testator's death,3 is not affected by this clause of the statute. So A, who has located a land certificate which belonged to B, deceased, under an oral contract with C, B's administrator, that A should have one-third of such realty for his services, may have specific performance of such contract if such remedy prove appropriate even where it is provided by statute that contracts of decedent's can be enforced specifically only when in writing.4 Such a contract may be affected by other clauses of the local statute. Thus an oral contract by executors to pay brokers a commission for selling decedent's realty is affected by a clause of the statute concerning contracts for commissions to brokers for the sale of real estate.5 Nor does this clause include a promise by one who is executor, legatee and the husband of the principal legatee to pay a certain amount to one in consideration of his refraining from contesting the will.6 To create a case for the application of this clause there must be in the first instance a liability against decedent's estate primarily, which the executor or administrator promises to pay out of his own estate.7 It is "very nearly allied"8 to the clause which applies to contracts to answer for the debt, default or miscarriage of another,9 though it is doubtful whether the rules applicable to novation as distinguished from guaranty10 would apply to a promise by an executor where the claim against decedent's estate is thereby cancelled.11
3 Edited by Danby Pickering.
1 See Sec. 995.
2 Meade v. Bowles, 123 Mich. 696; 82 X. W. 658.
3Fehlinger v. Wood, 134 Pa. St. 517; 19 Atl. 746. But if the debt is one on which executor is not personally liable, his promise to pay a debt incurred after testator's death may be a promise to pay the debt of another. Dillaby v. Wilcox, 60 Conn. 71; 25 Am. St. Rep. 299; 13 L. R. A. 643; 22 Atl. 491.
4 Jack v. Cassin. 9 Tex. Civ. App. 228; 28 S. W. 832.