1 Goring v. Goring, Yelv. 11; Bradly v. Heath, 3 Sim. 543; Childs v, Monins, 2 Br. & B. 460; Reech v. Kennegal, 1 Ves. 126.
2 Rose Vo Bowler, 1 H. Bl. 108; Powell v. Graham, 7 Taunt. 586..
3 Deeks v. Strutt, 5 T. R. 690; Rann v. Hughes, 7 T. R. 350, n.; s. c. 4 Bro. P. C. 27. But see Reech v. Kennegal, 1 Ves. 126; Trewinian v. Howell, Cro. Eliz. 91.
4 Pearson v. Henry, 5 T. R. 6; Goring v. Goring, Yelv. 11, n. 2; Oke-son's Appeal, 59 Penn. St. 99 (1868).
5 29 Car. II. ch. 3, § 4. See Mass. Gen. Sts. ch. 105, § 1.
6 The first case on this subject was Wain v. Warlters, 5 East, 10, which was modified subsequently by the case of Stapp v. Lill, 1 Camp. 242; s. c. 9 East, 348; Lyon v. Lamb, Fell on Merc. Guar. 318; Morris v. Stacey, Holt, N. P. 153; 2 Stark. Evid. 349; Champion v. Plummer, 1 Bos. & Pul. N. R. 252; Wheeler v. Collier, Mood. & M. 125; Boys v. Ayerst, Madd. & G. 316. See also Jenkins v. Reynolds, 3 Br. & B. 14; Saunders v. Wakefield, 4 B. & Al. 595; Morley v. Boothby, 3 Bing. 107; Lees v. Whitcomb, 5 Bing. 34; Cole v. Dyer, 1 Cr. & J. 461; Newbury v. Armstrong, 6 Bing.
7 Stapp v. Lill, 1 Camp. 242; s. c. 9 East, 348.
§ 363. An executor, with assets, is answerable for the funeral expenses of the testator, although he do not order them, nor expressly promise to pay for them, for the law implies a promise to pay all reasonable1 funeral expenses, from the fact of his having assets.2 Yet if the funeral be ordered by another person than the executor, to whom credit is given, the executor will not be liable3 to the person employed, although he may be bound to repay the amount so expended by the person ordering the expenses incurred.4
§ 364. If an executor submit a claim against himself as executor to arbitration, without protesting that the reference shall not be taken as an admission of assets, he thereby renders himself personally liable on the award, for the submission itself is otherwise treated as an admission that he has assets enough to pay, if it be decided that he is liable.5
§ 365. The trade of the deceased dies with him, and his executor or administrator cannot, without direction of court, carry it on, even though ordered to do so by the will, without incurring a personal responsibility on all contracts made by him in the course thereof.6 An executor who carries on the trade of his testator, though avowedly in the name of executor, is personally liable for all the debts thus contracted by him.7 The executors of a deceased partner are not liable as partners with the surviving partners, merely because the latter carried on the business with their assent and encouragement; they must have voluntarily employed the testator's assets in the trade.1 And, in this respect, the law is somewhat tyrannous, for while it throws upon the executor a personal responsibility, it denies to him any personal benefit from the trade. Within this rule, however, is not included the performance and completion of any unfinished executory contract made by the testator or intestate, which are not essentially personal, - such as a contract to build a house, or publish a work, when the building or publishing is already commenced.2 Again, the mere buying of particular articles by the executor for the purpose of furthering the sale of the testator's assets, such buying not being intended as an increase of stock for the purposes of trade, will not render the executor liable.3 Where executors carried on the business of the testator after his decease, and supplied the defendant with goods therefrom, it was held that they could sue as executors, though it did not appear that any of the materials belonged to the testator.4
201; James v. Williams, 3 Nev. & Man. 196; S.C.5 B.& Ad. 1109; Lay-thoarp v. Bryant, 3 Scott, 250; s. c. 2 Bing. N. C. 735; Sears v. Brink, 3 Johns. 210; Rogers v. Kneeland, 13 Wend. 114; Peltier v. Collins, 3 Wend. 459. See also Egerton v. Mathews, 6 East, 308, and note. But see Ex parte Gardom, 15 Ves. 287, 288.
1 See Magennis v. Dempsey, Irish R. 3 C. L. 327 (1868).
2 Tugwell v. Heyman, 3 Camp. 298; Rogers v. Price, 3 Y. & J. 28; Jenkins v. Tucker, 1 H. Bl. 90; Ambrose v. Kerrison, 10 C. B. 776; 4 Eng. Law & Eq. 361.
3 Brice v. Wilson, 3 Nev. & Man. 512; Walker v. Taylor, 6 C. & P. 752.
4 Ambrose v. Kerrison, 10 C. B. 776; 4 Eng. Law & Eq. 361.
5 Riddell v. Sutton, 5 Bing. 200; Robson v.------, 2 Rose, 50; Barry v.
Rush, 1 T. R. 691; Pearson v. Henry, 5 T. R. 7; Worthington v. Barlow, 7 T. R. 453.
6' Barker v. Parker, 1 T. R. 295; Ex parte Garland, 10 Ves. 119; Ex parte Richardson, Buck, 209; Wightman v. Townroe, 1 M. & S. 412
7 Labouchere v. Tupper, 11 Moore, P. C. 198 (1857).
§ 366. In the next place, an executor or administrator may become responsible on his bond for negligence or improper conduct in administering the estate; and in such case he is said to be guilty of a devastavit, or wasting of assets. For all maladministration or mismanagement of the estate, the executor or administrator is liable in a court of equity, and this is the proper tribunal for the adjustment of all difficulties arising from breaches of trust. Courts are, however, extremely liberal in respect to executors and administrators, and will not render them liable on slight and trivial grounds, although a proper performance of the trust will be insisted upon.5 A devastavit may occur, not only through a direct and wilful misapplication of funds, but also by acts of negligence.1 If an executor or administrator collude with a purchaser to sell the testator's goods at an undervalue, or merely nominal price; 2 or if he pay out legacies before debts; or pay the notes out of their legal order, having notice of all, and the assets prove to be deficient;3 or if he release or compound debts due to the testator, where it does not manifestly appear to have been done for the benefit of the estate;4 or, if he pay debts which he is not bound to pay;5 he will be guilty of a devastavit, and render himself personally responsible. Again, he is considered in equity6 (although this rule would not appear to obtain at law) as a gratuitous bailee, and to be responsible, therefore, only for losses growing out of gross negligence or misconduct, and not for losses resulting from unavoidable accident or force, such as theft, or fire, or the like; or from reasonable confidence disappointed, or, indeed, from any cause not growing out of his gross negligence.7 If he proceed to pay the legacies, after haying paid all the debts of which he has any cognizance, and subsequently an outstanding debt appears, of which he had no notice, he will be protected in equity against it, in case of a deficiency of assets, if he have acted in good faith, and with.