
    LUNT v. LUNT.
    [No. 2 of this name.]
    
      City Court of Brooklyn; General Term,
    
    
      May, 1880.
    Shipping.—Pleading.
    The personal representative of a part owner of a vessel is not bound, to protect the interest of the deceased, by incurring liability for repairs, &c., after the vessel has become too old for use.
    In an action framed to charge the estate with such expenses; the plaintiff cannot recover on an allegation of employment merely by the personal representative.
    Appeal by defendant from judgment on demurrer to complaint.
    George D. Lunt and John Hegeman sued Elizabeth H. Lunt, as administratrix of the estate of Benjamin P. Lunt, deceased.
    The allegations of the cause of action in the complaint demurred to were:
    “ 1. That on or about the first day of January, 1875, said Benjamin P. Lunt died intestate. That thereafter (he defendant was, by an order or determination of the surrogate of the county of Kings, duly appointed administratrix of the goods, chattels and credits of the said Benjamin P. Lunt, and that she is now such administratrix.
    
      “II. That at times hereinafter mentioned plaintiffs were and still are copartners in business, in the city of New York, under the firm name of Lunt Brothers.
    “III. That said estate, at the times hereinafter mentioned, had been, and was the owner of nine sixty-fourth parts of the steamship Metropolis.
    “IV. That plaintiffs had been asnd were at said times part owners of said steamship, and were also managing owners, ship’s husbands and agents of the owners of said vessel.
    “ V. That as such managing owners, ship’s husbands and agents of the owners of said steamship, and at. their instance and request, and at the instance and request of defendant, plaintiffs, between the first day of April, 1878, and the first day of December, 1878, paid out and disbursed moneys for account of said owners to the amount of $2,872 ; that said estate was and is chargeable with nine six-four.th parts thereof, which amounts to the sum of $403.88.”
    VL [In the same form they alleged work, labor and .services.]
    VII. Demand and non-payment was also alleged.
    
      The court at special term overruled the demurrer, on the ground that, upon the statement of the complaint, the .estate represented by the defendant as administratrix was liable to the plaintiffs as ship’s hus-■ bands and agents for its proper share of the money expended and work done in the vessel for account of the owners, without regard to any request made by defendant. And that the allegation of such a request could not have the effect to defeat the cause of action which arises out of the other facts set forth in the complaint.
    Defendant appealed.
    
      William O. Beecher (Lewis & Beecher, attorneys), for the defendant, appellant.
    
      I. (a) This being an action on a contract, which the complaint shows to have had its inception and completion more than three years after the intestate’s death, and it not appearing that it was at his instance or request, or under his instructions, it was personal to Mrs. Lunt; and, there being no allegation of fraud or insolvency on her part, it cannot be maintained against the estate (Austin v. Monroe, 47 N. Y. 360; Ferrin v. Myrick, 41 Id. 315, and cases cited; Stedman v. Feidler, 20 Id. 437, 446; Farnhall v. Farnhall, 1 Engl. [Moak’s Notes] 468; Ross v. Harden, 44 Super. Ct. [12 J. & S] 26, 28; Cary v. Gregory, 38 Id. (6 J. & S.) 127, 130; Ashby v. Ashby, 7 Barn. & Cress. 444, 452; Corner v. Shew, 3 Mees. & W. 350; Luscomb v. Ballard, 71 Mass. 403; Fitzhugh v. Fitzhugh, 11 Gratt. [Va.] 300; Hailey v. Wheeler, 4 Jones Law [N.C.] 159; Beatly v. Gingles, 8 Id. 302; Kessler v. Hall, 64 N.C. 60; Lucht v. Behrens, 28 Ohio, 231; 3 Williams on Ex. 6 Am. ed. 1871-1873; 3 Redfield on Wills,. 314, 315). (b) There can be no hardship in compelling plaintiffs to look to the administratrix personally. They are not deprived of their claim by such a rule. They have sued the wrong party, that is all. If it were alleged that the claim sued on had been contracted by the administratrix through fraud, or that she was insolvent, doubtless, if the contract was for the benefit of the estate, the estate might be called upon in equity to pay it (Ferrin v. Myrick, supra). But the complaint alleges neither fraud nor insolvency, (c) The complainant cannot, on argument of a demurrer, be amended by striking out “as administratrix,” and so making the action personal; it must stand or fall as it is (Austin v. Monroe, supra).
    
    II. It can hardly be - supposed that the court below intended to overrule the long line of authorities referred to in Point I.; but it was suggested by the court, perhaps with a view to avoiding this difficulty, that the allegations of request by defendant might be dis regarded. If such allegations make the action one upon an express contract, and their omission changes it to some other kind of action, less obnoxious to the authorities cited, it is respectfully submitted, that the court exceeded its power. Significant allegations cannot, on the argument of a demurrer, be disregarded. The court is bound by the obvious intent of the pleader, and cannot “glean from an entire pleading, one fact here, and another there, and then group them in such a manner that a cause of action may possibly be spelled out, which did not enter the mind of the pleader when he framed the pleading, and which is also inconsistent with the entire scope of the pleading, and the relief demanded thereby ” (Wheeler v. Connecticut Mut. Ins. Co., 16 Hun, 317, 327; Austin v. Monroe, 47 N. Y. 360, 367). The allegation of request shows the intent of the pleader, to sue on an express contract.
    III. But if this were not the rule, plaintiffs would be in no better position. There are only two possible theories upon which the action could be brought. 1. As a claim by agents for services or reimbursements— since managing owners and ship’s husbands are simply agents (Dunlap’s Story on Agency, 108, note A; Story on Agency, 8 ed. 41, § 35; Abbott on Shipping, tit. Part-owners; Stedman v. Feidler, 20 N. Y. 437). (a) But such claims arise out of a contract, either express or implied (Story on Agency, 8 ed. 434, § 339), and therefore could not be maintained in this action, an implied contract being in no better position than an express contract. An obligation which cannot be expressly created against the estate, cannot be raised by implication (Corner v. Shew, supra). (b) But if the services were not requested or accepted, and there is no allegation that they were accepted, they were voluntary and officious, and cannot be recovered (Dunlap's Paley on Agency, 109, 110, note A). (c) If the administratrix could not herself contract in behalf of the estate, so as to bind it, how could she delegate to an agent any authority which would give him power to bind or charge it % (d) A part-owner has no right to in-. cur any disbursements with reference to the joint property, except as the agent of the others, and either by their express or implied consent. He can make no disbursements nor incur any charges against their dissent (Story on Agency, 46, § 40; Abbott on Shipping, tit. Part-owners; Stedman v. Feidler, 20 N. Y. 439). (c) They do not sue as part-owners, but only as agents. 2. However, if the allegations of agency be disregarded, and this is treated as a claim by part-owners for contribution, and assuming for the moment that contribution could be maintained against the estate, the complaint is still insufficient. It nowhere appears that the disbursements alleged to have been made, and services rendered were necessary, or that they were incurred for the benefit or protection of the joint property, or of the estate. Or, that they were for the use or benefit of the defendants’ estate. Or, that defendant accepted them or retained the benefit. Or, that they were a joint obligation upon all the owners, or that plaintiffs were compelled to pay them. These are all essential allegations to an equitable claim for contribution. Essential allegations must be expressed; the court cannot infer them (Vandesand v. Hall, 13 How. Pr. 458; Dubois v. Hermans, 56 N. Y. 674).
    IV. An estate cannot be compelled to contribute for disbursements made in respect to matters which arose subsequent to intestate’s death, and for which he was never liable in his lifetime, and which he never directed or requested (2 R. S. 2 ed. 88; authorities cited under Point I., subd. a; Batard v. Howe, 2 Ell. & Bl. 287, 298.
    V. The creditors must look to the property which is employed in such enterprise,—i. e., the ships,—and must enforce their claim against them (Exp. Garland, 10 Ves. Jr. 109; Stamwood v. Owens, 80 Mass. 195).
    
      William H. Taggart and John P. Adams, for plaintiffs, respondents.
    I. If defendant wished to have this cause of action made more specific, he had his remedy by motion.
    
    II. The duties of ship’s husbands are to conduct all the affairs and arrangements, for the due employment of the vessel in commerce and navigation, and for those purposes they are the agents, and can bind the owners of the vessel (McCready v. Thorn, 51 N. Y. 454). The defendant’s intestate was part-owner of this steamship at the time of his death, and the contract with the plaintiffs then existing, still continues and binds the estate (Egbert v. Wood, 3 Paige, 577; Pugsley v. Akin, 1 Kern. 497).
    III. The money paid and services rendered were to protect and preserve said steamship; and the obligation of the estate as part-owner, binds it to contribute therefor to the ship’s husband, under the maritime law.
    IV. There is not, in this case, any new, independent consideration moving as between the plaintiffs and the administratrix, so as to constitute a personal contract of the administratrix, and so bring it within such decisions' as Austin v. Munroe (47 N. Y. 366, cited by defendant below). That case (47 N. Y. 366) refers to and approves the case of Chouteau v. Suydam (21 N. Y. 197), where the executors were held liable for money paid for the use of the estate, and the court says that the executors would have been wanting in “fidelity to their trust” if they failed to reimburse.
    V. An administratrix must pay taxes, insurance, or any other expense incidental and necessary to the protection or preservation of her trust, and in her accounting before the surrogate, she would be allowed for such charges and services of others, if paid by her (O’Gara 
      v. Clarkson, 2 Supreme Ct. [T. & C.] 675), and if not paid, she can be compelled to pay them by a creditor, and especially by a part-owner and ship’s husband.
   Neilson, Ch. J.

It appears that Benjamin P. Lunt, who owned a part of the steamship Metropolis, departed this life on the first of April, 1875. That the defendant became the administratrix of the goods and chattels which were of her husband, Benjamin P. Lunt. The plaintiffs were also part owners of the said steamer, and have been the managers, ship’s husbands and agents of the owners.

It further appears from the complaint that at the request of the owners and of the defendant, the plaintiff, between the first of April and the first of December, 1878, paid out and disbursed moneys for the account of the said owners, and performed work, labor and service for them' relating to the business of the said ship. The action was brought to recover a relative share of such expenses as chargeable to the estate.

The defendant having demurred to the first cause of action stated in the complaint, judgment was ordered for the plaintiffs. After some consideration I have come to the conclusion that the judgment was erroneous.

There had been no application for an amendment of the summons and complaint before the argument on the demurrer. If such application had been made and granted, the defendant might have been allowed to amend or answer over. No such application appears to have been made on the hearing, nor would it have been granted if made. On that hearing, the pleadings were to be taken in the form presented. There is no doubt but that where unnecessary allegations have crept into a complaint, and the other and more appropriate allegations of fact show a good cause of action, the latter should prevail. But it is a sufficient objection to the reformation of a pleading on such a hearing, that if thus corrected when served, the attorney might not have put in a demurrer.

The action was brought against the defendant “as administratrix,” the summons and complaint thus entitled, and as the estate owned part of the steamer, it was claimed that the estate was chargeable with a proportion of the expenditure. In a doubtful case that might help us to determine-the character of the action. But on the argument before us, and in the points submitted, the learned counsel for the plaintiffs treated the case as having been brought against the administratrix, as such, and to obtain satisfaction out of the estate. We are therefore at liberty -td so consider the case now.

The allegation that the plaintiff performed the service, and made the disbursements at the request of- the defendant, is not material.. Not but that the action is, in part, planted on that. But there was no consideration moving from the plaintiffs to the defendant.. None is suggested in the complaint, save that the plaintiffs acted on that request. But if the consideration and an agreement had been fully stated, it would be a sufficient answer that the administratrix could not thus bind the estate. This rule has been too well settled to require the citation of authorities, but the cases of Austin v. Munroe (47 N. Y. 360), and Ferrin v. Myrick (41 Id. 319), may be referred to as having direct application to the case before us.

It is true that the administratrix should pay taxes, insurance, and other expenses incident to the trust, but that duty is personal. The complaint does not show that the defendant had been derelict in regard to such duties, or had means of the estate in her hands to be thus applied. The personal obligation in such a case, if there be means, rests upon the same principle that binds or qualifies the duty of an assignee of property in trust for the benefit of creditors. He is bound to pay the current expenses, clerk hire, and the like ; and, if he adopts a lease as part of the trust estate, is personally liable to pay the rent which the assignor had agreed to pay. But if the lease be of no value, he need not adopt it, occupy the premises, or pay the rent. In like manner, if this steamer were of no value, too old and frail for use, the administratrix might well abandon all claim to it. There must, in the nature of the thing, be a time when the duty to protect such an interest ceases, and, on behalf of the estate, is determined. It does not appear from the complaint that the ship was of value, or capable of earning anything, and the sums expended in a few months in 1878, $2,872 in money, and $1,000 in labor, should have admonished a person charged with the execution of a trust not to interfere. But if this defendant was induced to interfere, she did so at her own personal risk. It was not the less a mere personal obligation if she could be reimbursed out of the estate on an accounting.

It is not alleged that the plaintiffs acted'under any employment by the intestate, or were carrying out an arrangement which had been made with him. Indeed, it does not clearly appear that they had acted as the ship’s husband, or as agents for the owners before he died.

The claim then rests simply on the fact that a part of the ship belonged to the estate; and that, at the instance and request of the defendant and the other owners, the plaintiffs paid certain expenses. As the administratrix could not, in thus contracting, bind the estate, the demurrer was well taken.

The judgment should be reversed, with costs.  