dressed the defendant as "A. Sowles, Adm'r," and the defendant signed "A. Sowles, Adm'r." The writ and declaration ran against "Albert Sowles, administrator of W. L. Sowles' estate," and the court rendered judgment against the defendant "as administrator."

Ross, C. J. The doctrine sets forth a good cause of action, and was properly adjudged sufficient against the causes alleged in the demurrer. It commands the attachment of the goods, chattels, or estate of Albert Sowles, administrator of William L. Sowles' estate, and not of the estate of William L. Sowles, of which Albert Sowles is administrator. The words, "administrator of William L. Sowles' estate," are descriptive of the person named as the defendant in the suit. If, by chance, there were two persons of that name in that locality, these descriptive words would direct the officer serving the writ to the person intended. The common courts in general assumpsit constitute the declaration. Those declare that the defendant, viz., Albert Sowles, and that one who holds the office of administrator of the estate of William L. Sowles, is indebted, and made promises, to the testator whose will the plaintiffs are executing. The plaintiffs do not declare, nor seek to recover, upon a promise or undertaking of William L. Sowles, the intestate, of whose estate Albert Sowles is administrator. Inasmuch as the defendant is the legal representative of the estate of William L. Sowles, if the declaration sought a recovery upon the promise or undertaking of the intestate it would be necessary to describe him as such representative. Then the recovery would be against the estate, or the defendant as the representative of the estate. The judgment, in such a case, would be against and to be satisfied out of the estate and not out of the property of Albert Sowles. The words, "administrator of Wm. L. Sowles' estate," in such an action, would be descriptive of the capacity in which Albert Sowles was sued, and that he stood as the representative of the estate of William L. Sowles. Hence, when these words in the declaration follow the name of the party, whether they will be deemed descriptive of his person or descriptive of the character or capacity in which he is sued, is determined by the allegations of the declaration. If the declaration is against him personally, they will be held to be descriptive of his person. That is the only office they can

serve in such a declaration. They must be rejected as surplusage. If the declaration is against the estate which he represents, and the promises declared upon are not his promises, but the promises of the person he represents, then they will be held to be words properly used, necessary to set forth the representative character in which he sued. The allegations of the declaration and the facts found show a personal promise by the defendant, and these words are only descriptive of the person intended to be named as defendant. The writ might be amended by striking them out. Johnson v. Nash, 20 Vt. 40; Waterman v. Railroad, 30 Vt. 614; Myers v. Lyon, 51 Vt. 272; Jones v. Tuttle, 54 Vt. 488.

As contended by the defendant, an administrator has no authority, as such representative, to create any debts against the estate. He only has authority, by virtue of his office, to administer upon the estate; that is, to ascertain both its assets and debts, and to put the former in condition to pay the latter, if sufficient, and the surplus, if any, in a condition to be distributed to those legally entitled thereto. Whatever proper expenditures he may make in accomplishing this will be allowed him by the probate court out of the estate, on the settlement of his administration account. But if, in caring for and administering upon the estate, it becomes necessary to incur an indebtedness, he can bind himself, and not the estate, for its payment. He cannot incur a debt in the administration of the estate, and bind the estate for its payment. He can bind himself only for such payment. Upon his becoming insolvent, equity will not enforce the payment of such a debt out of the estate. Lovell v. Field, 5 Vt. 218; Bank v. Weeks, 53 Vt. 115.

Whether, when trust or other property not owned by the estate has become mingled with it, a suit may be maintained for its recovery out of the estate against the administrator in his representative capacity, as was held in De Valengin v. Duffy, 14 Pet. 289, is not involved in this suit, and need not be considered.

The execution for the enforcement of the judgment follows the writ. Rider v. Alexander, 1 D. Chip. 267; Perry v. Whipple, 38 Vt. 278; Wright v. Hazen, 24 Vt. 143. As the writ is against the defendant, not representatively but personally, so must the judgment and execution be. Rendering judgment

against the defendant, "as administrator," did not make it a judgment to be enforced out of the property of the estate of which the defendant is administrator, but to be enforced against the defendant's own property. Adding "administrator" to his name when the defendant purchased the horses did not bind the estate for their payment, but bound the defendant. No more does such addition to his name in the judgment affect the nature of the judgment, or change it from a judgment to be satisfied out of the defendant's property to one to be satisfied out of the property of the estate. Such addition in making the contract and rendering the judgment might indicate that the debt was contracted by the defendant in administering upon the estate, and that he claimed that it constituted an item in his administration account. It might be rejected as surplusage, or by way of amendment, without changing the legal nature of the contract or judgment. This disposes of all the contentions insisted upon in this court. Judgment affirmed.

LUSCOMB v. BALLARD.

5 Gray 403. 1855.

Action of contract against the executor of Nathan Cook for services in taking care of the house and furniture of said Cook after his decease. There was evidence that one Osborn, named as executor in the will, but who declined to accept the trust, employed plaintiff to take care of the house; that a special administrator, afterwards appointed, did not discharge plaintiff, but permitted him to remain. The jury returned a verdict for the plaintiff, and defendant excepted.

THOMAS, J. The jury have found that the defendant neither caused, nor in any way assented to, the employment of the plaintiff for the services for which this suit is brought. cannot therefore be charged de bonis propriis.

He

If not liable as of his own goods, has the estate in his hands been charged by the acts of Osborn, or the special administrator, so that there may be a judgment de bonis testatoris? We think

not; but that the law is, that by a promise, the consideration of which arises after the death of the testator or intestate, the estate cannot be charged, but that the executor or administrator is personally liable on his contract. And whether the amount is to be repaid from the estate is a question for the court of probate, in the settlement of his account.

The old doctrine seems to have been that, upon any promise made after the death of the testator or intestate, the executor or administrator was chargeable, if at all, as of his own goods, and not in his representative capacity. Trewinian v. Howell, Cro. Eliz. 91; Hawkes v. Saunders, 1 Cowp. 289; Jennings v. Newman, 4 Term. R. 348; Brigden v. Parkes, 2 Bos. & P. 424.

The more recent authorities, however, have settled that an executor may, in some cases, be sued in his representative capacity on a promise made by him as executor; and a judgment had de bonis testatoris. But it will be found that, in these cases, that which constituted the consideration of the promise or the cause of action arose in the lifetime of the testator. Dowse v. Coxe, 3 Bing. 26; Powell v. Graham, 7 Taunt. 581; Ashby v. Ashby, 7 Barn. & C. 444. And an action for goods sold and delivered to one as executor, or for work done for one as executor, charges the defendant personally, and not in his representative charac ter. Corner v. Shew, 3 Mees. & W. 350. See, also, Forster v. Fuller, 6 Mass. 58; Sumner v. Williams, 8 Mass. 162; Davis v. French, 20 Me. 21; Myer v. Cole, 12 Johns. 349.

In this commonwealth an exception is made in the case of funeral expenses of the deceased. For these, the executor or administrator may be charged in his representative character, and judgment be rendered de bonis testatoris. But the case stands on its peculiar ground, and is to be limited to it. Hapgood v. Houghton, 10 Pick. 154.

The modern English doctrine on this point is, that if the executor or administrator gives orders for the funeral, or ratifies or adopts the acts of another party who has given orders, he makes himself liable personally, and not in his representative capacity. Brice v. Wilson, 8 Adol. & E. 349, note; Corner v. Shew, 3 Mees. & W. 350; 2 Williams, Ex'rs, 1522.

If the contract of Osborn, or of the special administrator, did

not charge the estate, of course the defendant can in no form be liable.

In this view of the case, it is unnecessary to consider how far the contract of Osborn, who was named executor in the will, but declined the trust, could bind the estate. If the executor could not so charge the estate, a fortiori one who never accepted the trust could not.

Exceptions sustained.