§ 113. Special promise to answer for debt of testator or intestate. No executor or administrator shall be chargeable upon any special promise to answer damages, or to pay the debts of the testator or intestate, out of his own estate, unless the agreement for that purpose, or some memorandum or note thereof, be in writing, and signed by such executor or administrator, or by some other person by him thereunto specially authorized. Formerly 2 R. S. 113, § 1. 1. No executor or administrator shall be chargeable upon any special promise to answer damages, or to pay the debts of the testator or intestate, out of his own estate, unless the agreement for that purpose, or some memorandum or note thereof, be in writing, and signed by such executor or administrator, or by some other person by him thereunto specially authorized.81 84 Comment. This section is taken indirectly from the first subdivision of the 4th section of the Statute of Frauds,82 re-enacted in this State on different occasions 83 anterior to the Revised Statutes.8 The personal liability of an executor to answer out of his own estate for waste is even now a large one, and the tendency, before the Statute of Frauds, was to so far identify the executor with the deceased in all cases as to make him constructively liable for the debts of the deceased.85 The first subdivision of the 4th section of the Statute of Frauds relating to the personal liablity of executors has perplexed some lawyers, and they do not perceive any good reason why a separate clause was necessary to protect executors, when the next subdivision of the Statute of Frauds expressly provided, that no one should be charged upon any promise to answer the debt, default or miscarriage 81 Repealed by § 130, Decedent Estate Law. 82 29 Car. II, chap. 3; 1 R. L. 75, § 11; see revisers' note 36, Appendix II, infra. 83 Chap. 44, Laws of 1787; 2 J. & V. 44; 1 K. & R. 72, § 11; 1 R. L. 75, § II. 84 2 R. S. 113, § 1. 85 See above, p. 502, under § 112, and Ferrin v. Myrick, 43 N. Y. at p. 323. 87 of another unless the same were in writing. 86 But there was a reason for the special exemption of executors. In the reign of Charles II the obvious legal tendency was to follow the Roman law, and to identify the executor with the deceased as eadem persona, and not to treat the executor as a different person in law. The jural fiction of "eadem persona was no doubt then a very convenient one for many purposes, especially in the law of procedure on contracts made by the deceased in person. At the present day when a contract is made by the testator in his lifetime, an action lies against the executor, but only as such executor, and the judgment is then de bonis testatoris.8 88 Even at the present day, an executor or administrator is liable individually on contracts made by him after the death of testator, and then the judgment is de bonis propriis.89 But these familar distinctions were not so clearly established when the Statute of Frauds was first enacted as they are at present. The legal tendency then was, as stated above, to identify the executor in law with the testator and to regard him as eadem persona as his testator. In any event a very slight ground then sufficed to charge the executor or administrator personally, and the liability need not be founded on a writing.90 It was doubtless some legal tendency to identify the executor with the testator which prompted the insertion of the first subdivision of the 4th section of the Statute of Frauds, intended to relieve executors from a constructive personal liability to creditors of their testator, unless the promise was in writing." Mr. Throop discusses the reason for this particular subdivision in his very excellent observations on the Statutes of Frauds, but he seems puzzled and to overlook the one here suggested as the probable reason for this distinct provision of the statute, and yet it seems the only obvious reason, 86 29 Car. II, chap. 3, § 4, subd. 2, now 31, Pers. Prop. Law of 1909, subd. 2. 87 See Ferrin v. Myrick, 41 N. Y. at p. 323, and cases there cited. 88 Ferrin v. Myrick, 41 N. Y. 315, 322; 116, Decedent Estate Law. 89 Howard v. Heierschit, 16 Hun, 177; Ferrin v. Myrick, 41 N. Y. 315, 322; Levin v. Russell, 42 id. 251; Austin v. Munro, 47 id. 360; Willis v. Sharp, 113 id. 586, 591; Parker v. Day, 155 id. 383; O'Brien v. Jackson, 167 id. 31, 33. 90 Ferrin v. Myrick, 41 N. Y. at p. 323. 91 See the Statute, Fowler's Pers. Prop. Law (2d ed.), p. 297. 92 Throop on Verbal Agreements, §§ 12, 13. if we have reference to the development of the law regulating executors. When the executor's agreement or promise is now in writing under the Statute, some consideration is still necessary to support it.93 Prior to the independence of New York the executor was held personally liable on such promise, or undertaking, whenever at the time of the executor's promise he had assets; for then there was a sufficient consideration, and assumpsit lay against the executor personally and the judgment against him was personal or de bonis propriis.94 But it was otherwise if at the time of such promise he had no assets. Some persons, however, maintained that a mere forbearance to sue on the part of the creditor furnished a sufficient consideration to support the promise of the executor.96 Mr. Throop discusses this obscure question of the consideration moving to the executor only indirectly, but with reference to more modern cases, and his treatise should be consulted on this point by the New York lawyer.97 95 A promise or agreement of an executor may, however, still be an original promise and without this section of the statute, and in that case it is directly enforceable against him personally, although not in writing.98 This section in terms relates only to debts of the decedent, and not to those of the executors or administrators as such. An executor can not, however, by his promise or act revive a debt against the estate of his testator which is barred by the Statute of Limitations."9 93 See Fowler's Pers. Prop. Law (2d ed.), 154, 155; Ram on Assets. 504; Williams on Executors (2d ed.), 1262. 94 Cro. Eliz. 91; 1 Rol. Abr. 930, C. pl. I. 95 Ram on Assets, 505. 96 1 Rol. Abr. 15. 97 Throop, Verbal Agreements (New York, 1870), pp. 87, 91. 98 Hall v. Richardson, 22 Hun, 444; O'Brien v. Jackson, 167 N. Y. 31; and see Fowler's Pers. Prop. Law (2d ed.), 153-157. 99 Schutz v. Morette, 146 N. Y. 137; Van Slooten v. Dodge, 145 id. 327. § 114. Liability of executors and administrators of executors and administrators. The executors and administrators of every person, who, as executor, either of right or in his own wrong, or as administrator, shall have wasted or converted to his own use, any goods, chattels, or estate, of any deceased person, shall be chargeable in the same manner as their testator or intestate would have been, if living. Formerly 2 R. S. 114, § 6. 6. The executors and administrators of every person, who as executor, either of right or in his own wrong, or as administrator, shall have wasted or converted to his own use, any goods, chattels or estate, of any deceased person, shall be chargeable in the same manner, as their testator or intestate would have been if living.1 Comment. This section, like many other sections of this act, taken out of the Revised Statutes, has a long history. It was not original with the revisers of the Revised Statutes, but was by them taken out of the Revised Laws of 1813,2 which in turn had derived it from a prior revision. This section first appears in 1787 in Jones and Varick's revision of the English statutes extending to New York and adopted and continued in force by the first Constitution of the State. This section of the Decedent Estate Law is in reality only a repetition of the English statute, 30 Car. II, chap. 7.5 By the old law prior to the statute, 30 Car. II, if an executor or administrator committed waste or a devastavit" and then died, his executor or administrator was not liable over, for such waste or devastavit was ex delicto and purely personal. Personal actions, it will be remembered, did not then survive; "actio personalis moritur cum persona." The English act, 30 Car. II, 7, was enacted in order to remedy such a state of things and to give a cause of action where none before existed. If, however, the defendants had no assets of the old defaulting executor or administrator, the defendants were not personally chargeable. At the present day if an executor or administrator commit waste or a devastavit and dies, an action lies against his executor or administrator under this statute.8 7 Furman v. Coe, 1 Cai. Cas. in Error, 96; Matter of Lamb, 10 Misc. 638. 8 Harrington v. Keteltas, 92 N. Y. 40, 50; Walton v. Walton, 2 Abb. Pr. N. S. 428. |