
    Emmet E. Olcott et al., Plaintiffs, v. Serafina Moliner de Jorrin, as Administratrix, De Bonis Non, etc., Defendant.
    (Supreme Court, New York Special Term,
    January, 1902.)
    Administrator — Cannot bind the estate of his intestate by a new executory contract — Parties.
    An amended complaint which alleges that the plaintiffs rendered legal services to the estate of a decedent, domiciled at her death in Mexico, under a contract made with a former deceased Mexican administrator, that the latter by will appointed there personal representatives of his estate but that none have been appointed in the State of New York, that he left no property here except a possible -interest in the estate of which he was such administrator, and that his representatives are about to surrender to those of the intestate all his claim to the assets here in return for the surrender by the defendant and other heirs of the intestate of any claim which he or they may have had on the Mexican estate of the administrator, states no cause of action and contains no allegation which excepts the case from the general rule that personal representatives cannot, by executory contracts for a new consideration and although made in the interest of the estate they represent, bind that estate and thus create a liability not founded on the contract of their decedent.
    
      Semble, that even if the complaint were sufficient, it would be demurrable where persons, appearing on its face to have a vested interest in the,_property of the intestate, were not made parties to the action.
    Demubbeb to amended complaint.
    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 Eepublic 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 demurs upon the grounds, first, that the complaint does not state facts sufficient to constitute a cause of action, and, sec.ond, 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; Ferrin v. Myrick, 41 id. 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, ij: 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, supra, 33 ; Thomson v. Smith, 64 N. H. 412. Hot 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. 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 plaintiffs’ 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 cases (that is, where, although the executor or trustee made the contract, the estate may he sued) can be enforced only in an equitable action brought for the purpose. To that action the beneficiaries and cestuis que trust 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.  