Durkin v. Langley

Holmes, J.

The contract sued upon, literally construed, purports to bind the defendant personally. The acceptance is personal and the offer is personal. The words “ for the estate of California A. Davol,” following the words “I agree to build and erect for you,” only identify the subject matter of the contract. The general rule of the common law is, that an executor cannot bind himself in a representative capacity by a new express contract. He binds himself personally if at all. Luscomb v. Ballard, 5 Gray, 403 . Kingman v. Soule, 132 Mass. 285, 288 . Phillips v. Blatchford, 137 Mass. 510, 514 . Farhall v. Farhall, L. R. 7 Ch. 123, 127, 128. Taking these two considerations together, we are not to enforce the contract against the estate unless some paramount reason is shown. We do not discover one in Pub. Sts. c. 144, § 6. That section only authorizes the Probate Court to allow a reasonable sum for a monument when the same has been expended by the executor or administrator. It does not purport to authorize a new form of contract. If it does so, it does so by implication only. Even in the case of funeral expenses proper, the decisions allowing a recovery against the estate are decisions on a promise implied by law and arising from the necessity of the case. Our attention has not been called to any case allowing a recovery on an express promise, still less to one allowing a recovery against the estate upon an express promise by the executor, when one would not be implied by law, or upon one different from that which would be implied. Hapgood v. Houghton, 10 Pick. 154 . Constantinides v. Walsh, 146 Mass. 281 . It is doubt *579 fui whether a promise to pay for a suitable monument ever would be implied by law. Sweeney v. Muldoon, 139 Mass. 304 .

Certainly the statute cannot be held by implication to authorize an express contract binding the estate further than in terms it authorizes an allowance to the executor. How far it does so under the particular circumstances the plaintiff must find out at his peril. In this case no allowance out of the general assets would be reasonable, because the testatrix gave a fund specially for the purpose, which came to the hands of the executor. The ruling asked was material, and should have been given. Yarrington v. Robinson, 141 Mass. 450 . Exceptions sustained.