
    (36 Misc. Rep. 735.)
    OLCOTT et al. v. DE JOWIN.
    (Supreme Court, Special Term, New York County.
    January, 1902.)
    Administrator—Power to Contract.
    Plaintiff alleged in liis complaint that he had rendered services to the estate of the decedent, domiciled at her death in Mexico, under a contract with a former deceased Mexican administrator; that the latter had appointed three personal representatives of his estate in Mexico, but that none had been appointed in the state; that he left no property in the state, except a possible interest in the estate of which he was-administrator; and that his representatives were about to surrender all his claim to the assets in the state in return for the surrender by the-defendant and other heirs of the intestate of any claim they might have in the Mexican estate of the administrator. Eclé, as a' personal representative cannot, by executory contract, for a new consideration, though made in the interest of the estate, bind the estate, and create a liability not founded on a contract with his decedent, the complaint states no cause of action.
    Action by Emmet R. Olcott and others against Serafina Moliner De Jowin, as administratrix.
    Demurrer to complaint sustained.
    Olcott, Mestre & Gonzalez (James L. Bishop, of counsel), for plaintiffs.
    David B. Simpson, for defendant.
   STECKLER, J.

The amended complaint alleges the performance of legal services by the plaintiffs for the benefit of the estate of a decedent domiciled at the time of her death in the republic of Mexico; that said services were performed under a contract with the previous (deceased) administrator, who was a citizen and resident of said republic; that said administrator left a last will and testament, by which representatives of his estate were duly constituted in said republic; that no executor or other representative of said administrator has been appointed in this state; that he left no property in this state, except a possible interest in the estate of which he was administrator; and that the representatives of said administrator are. about to surrender to the representatives of his intestate all claim which said administrator may have had in the assets of the estate of his intestate in this state, in consideration of the surrender by the defendant and other heirs of the intestate of any claim which they or the intestate may have had upon the.estate of said administrator in Mexico. The defendant demúrs upon the grounds: First, that the complaint does not state facts sufficient to constitute a cause of action; and, second, that there is a defect of parties defendant, in that the heirs and next of kin of the intestate should be joined as defendants.

The demurrer for legal insufficiency must be sustained. There is no allegation of fact which excepts this case from the rule that executors or administrators cannot, by their executory contracts, based upon a new and independent consideration,' although made in the interest and for the benefit of the estate they' represent, bind the estate, and thus create a liability not founded upon the contract or obligation of the testator or intestate. O’Brien v. Jackson, 167 N. Y. 31, 60 N. E. 238; Ferrin v. Myrick, 41 N. Y. 315. An equitable action can be maintained against the estate on behalf of a creditor only in case of the fraud or insolvency of the representative, or where he is authorized to make an expenditure for the protection of the estate and he has no fund for the purpose, in which latter instance, if unwilling to make himself personally liable, he may charge the estate in favor of any person who will make the' expenditure. See O’Brien v. Jackson, 167 N. Y. 33; Thomson v. Smith, 64 N. H. 412, 13 Atl. 639. Not only is there neither fraud nor insolvency here, but it' appears on the face of the complaint that the administrator left property in this state, which can doubtless be -reached by appropriate proceedings in the surrogate’s court (Hendrickson v. Ladd, 2 Dem. Sur. 402), and that he also left property in Mexico. The alleged impending agreement by which the representatives of the deceased administrator are about to assign their interest in the estate cannot affect the plaintiff’s rights. Assuming, however, that the complaint is legally sufficient, it would seem that there is a defect of parties defendant. In O’Brien v. Jackson, supra, the court said:

“Charges against the trust estate in such eases [that is, where, although the executor or trustee made the contract, the estate may be sued] can be enforded only in an equitable action brought for the purpose. To that action the beneficiaries and cestuis que trustent, are necessary parties. The trust estate cannot be depleted or swept away, except in an action which they may defend.”

It appears affirmatively on the face of the complaint that there are other heirs of the intestate besides the defendant, and, although the property of the intestate in this state is personal property, it is a reasonable inference that the pleader used the word “heirs” to denote persons in whom the title to said property vested. The fact that defendant, in specifying the ground of demurrer, names the heirs and next of kin, is not considered material. The demurrer on this ground is sufficiently specific, and it must be sustained.

Demurrer sustained, with costs.  