
    Patrick Hoctor, Respondent, v. Samuel Lavery, Appellant.
    
      Personal liability of an administrator who, without adequate funds of the estate, purchases a monument.
    
    Where a testator bequeaths to his executor a specified sum in trust for the purpose of erecting a suitable monument Qver.his gravé, and upon the resignation of the executor an administrator with the will annexed is appointed, who, while acting as such, purchases a monument, the administrator is, in the event of the testator’s property being insufficient to realize the amount of the trúst fund, personally liable for the purchase price of the monument.
    Appeal by the defendant, Samuel Lavery, from a judgment of the Supreme Court in favor of the plaintiff, éntered in the office of the clerk of the county of Warren on the 21st day of July, 1899, upon the report of a referee. .
    This is an'action brought under the provisions of sections 1837, 1838,1840 and 1841 of the Code of Civil Procedure to recover from the'defendant,' as one of the legatees of John Lavery, deceased, who was in his lifetime administrator with the will annexed of one Hugh Lavery, deceased, the proportionate share of. $700, being the contract price of a monument for the said Hugh Lavery, furnished by the plaintiff.
    The action was referred to a referee, who reported in favor of the plaintiff, and from the judgment entered upon his report this appeal is. taken. ■
    .Upon the trial the following facts appeared : In the year 188.4, one Hugh Lavery died, leaving a last will and testament, wherein, after making certain specific devises, there was set forth the following : “ I give and bequeath unto my executor hereinafter named the sum of seven hundred dollars in trust, however, for the purpose of erecting a suitable, monument over the grave of myself and my mother, and I hereby direct that I be buried in the lot in which she is buried in the cemetery in the town of Moreau, Saratoga county, K Y.”
    And in and,by the said will he constituted and appointed James McDermott his executor. James McDermott renounced such appointment, and thereafter John Lavery, brother of Hugh, was. appointed administrator with the will annexed.
    It was admitted upon the trial “that John Lavery,deceased,purchased of the plaintiff the monument in question, while acting as administrator with the will annexed of Hugh Lavery, deceased, for the sum of $700.”
    John Lavery died May 20, 1885, and on the 24th day of June, 1885, letters of administration with the will annexed of Hugh Lavery, deceased, were granted to Anson R. Staples.
    Hpon the trial of this action the referee found that the estate of Hugh Lavery, outside of the specific bequésts and legacies, did not amount to enough to pay anything more than the costs and expenses of administration and debts of the decedent, and for that reason there was no money to make up the trust fund provided for by said will to build a monument.
    John Lavery left a last will and testament, wherein he bequeathed to each of his four children, including the defendant, the sum of $350, making each of said legacies a charge upon a farm owned by him. He also gave to the defendant a piece of land in the town of Queensbury. All the rest, residue and remainder of his estate, both real and personal, he left to his widow, Rosanna Lavery, whom he also constituted the executrix of his estate. All the legacies to his children, including the defendant, have been paid.
    The referee found “ that the executrix, who was also widow, residuary devisee and legatee in the will, took possession of all the property, both real and personal, except the land devised to Samuel Lavery, the defendant. She paid out for funeral expenses and various debts one, hundred sixty-seven dollars. The personal property which-she would be entitled to by law as widow amounted to about three hundred dollars, leaving about one hundred thirty-three dollars of personal property in her hands applicable to pay the four legacies above referred to, amounting to fourteen hundred dollars. She raised the money to pay the legacies by mortgaging the real estate. That no assets were delivered by the executrix to the surviving wife, or next of kin as such, and the said wife and next of kin received nothing whatever from the estate of John Lavery except as hereinbefore stated in this report.”
    The amounts received by the wife and next of kin, as referred to-by the referee, were the legacies bequeathed to them in the will.
    The only exception by the appellant to the findings of fact by the réferee was to the finding that “ the plaintiff sold and delivered to John Lavery, the father of the defendant, a granite monument, for the agreed sum of $700.” There is no statement that the case contains all-the evidence.
    The contention of the appellant is, that John Lavery-was not personally - liable for the purchase price of the monument ; that it was not- a debt of his, and that no action could have been maintained-therefor against his executor- or administrator, and that, therefore, an action for any proportionate part of the purchase price cannot be maintained against the defendant as a legatee of John Lavery.
    
      D. J. Sullivan, for the appellant.
    
      H. Prior King, for the respondent.
   Herrick, J.:

From the admission, of - record, in this case, wé must assume the finding of the referee, as to the purchase of the monument by John Lavery, to be correct.

John Lavery was personally. liable for the contract price of the monument purchased by him, and the indebtedness thereby incurred constituted a claim against him, arid not against the .estate of Hugh La.very, in the first instance at least, although purchased by him while acting as administrator of Hugh Lavery, and for the purpose of carrying into effect the wishes of his testator. (Ferrin v. Myrick, 41 N. Y. 315 ; Austin v. Munro, 47 id. 360 ; New v. Nicoll, 73 id. 127; Wetmore v. Porter, 92 id. 76; Parker v. Day, 155 id. 383.)

The reasons given in the case of Ferrin v. Myrick (supra), at page 319, for holding an administrator or executor personally liable for contracts made by him, instead of the estate, are peculiarly applicable to this case, where a specific sum was bequeathed to the executor in trust for the purpose of purchasing a monument.

J ohn Lavery succeeded to the trust of the executor named, and became the owner of' that trust fund, and personally responsible for its expenditure.

If the assets were not sufficient to realize the amount of such trust fund, he as administrator would be aware of that fact, and if he attempted to carry into effect the desire of his testator, with no funds to meet it, he was still personally responsible, and not the estate.

The referee has found that no assets were turned over to the surviving wife or next of kin, as such; that the defendant, one of four legatees, has received the amount of his legacy, and a case is, therefore, made under sections 1837 and 1841 of the Code of Civil Procedure for the recovery from him of his proportionate share of the purchase price of the monument for which John Lavery, and upon his death his estate, was liable.

The judgment should, therefore, be affirmed.

All concurred.

Judgment affirmed, with costs.  