
    Isaac A. Hopper v. Samuel H. Adee impleaded with John Tilton, Executors, &c., of F. Weber, deceased.
    Executors having a naked power to sell the real estate of their testator, and not authorized to make repairs, cannot charge the personal estate in their hands with the cost of repairs, although made under a contract with one of them, as an executor. The executor making the contract may he personally liable, but not those who were not parties or privy to the contract.
    Judgment for defendant affirmed with costs.
    (Before Oakley, C. J., Campbell and Hoffman, J.J.)
    March 9, 1854.
    Appeal from a judgment for the defendant upon the report of a referee.
    The complaint charged that the defendants, as executors, &c., of F. Weber, deceased, had employed the plaintiff to furnish materials and make certain repairs upon a house belonging to the estate of their testator; that the value of the materials furnished and repairs made by him was $370 53, of which there remained due and unpaid $170 53, for which sum judgment was demanded against the defendants, as executors,
    The answer admitted that the defendants were executors, as alleged, but denied that they had employed the plaintiff to furnish the materials and make the repairs in question. It also denied that the house, mentioned in the complaint, . belonged to the estate of the testator.
    The cause was referred to Philo T. Euggles as sole referee.
    
      It appeared from Ms report that the plaintiff had made repairs, &c., upon a house which belonged to the estate of the testator, at his decease, and that the repairs, including the materials wMch he furnished, exceeded in value the .sum of $500. It also appeared that, in making these repairs, he acted under an order or contract in writing signed by Tilton, one of the defendants, as executor, &c., of F. Weber, but there was no evidence that the defendant Adee ever assented to this contract, or indeed, had any knowledge of its existence.
    The will of F. Weber, which was proved and read before the referee, is as follows.
    In the name of God, amen. I, Frederick Weber, of the city and county of Hew York, gentleman, weak in body but of sound mind, memory, and understanding, do make this, my last Will and Testament. After the payment of all my just debts, funeral expenses and testamentary charges, I do give and devise and bequeath unto my affectionate and lawful wife, Caroline Cecilia, the daughter of William Fawsett, the rents, issues and profits of my real estate, and the income or interest of my personal estate, during her widowhood, for her own support and maintenance, and the education, support and maintenance of my four children, Frederick Augustus Weber, Matilda Frances Weber, William Theodore Weber, and Caroline Bruner Weber, and in case my said wife should marry again, then, in lieu of the above provision made for her during her widowhood aforesaid, I do give and bequeath unto my said wife the sum of three hundred dollars yearly, during her natural life, which I direct my executors, hereinafter named, to allow and pay unto her on her separate receipt, half yearly, out of my estate, and upon the termination of the widowhood of my said wife, by marriage or death, • then I do give, devise and bequeath unto my said children, before named, their heirs, assigns, and, the survivors or survivor of them, the residue and remainder of my estates, real and personal, with all the accumulations thereof; I do hereby appoint my said wife the guardian of my said children during their respective minorities; I do authorize my executors, hereinafter named, in case it shall be necessary, to borrow" money to pay assessments that may bp imposed, to mortgage my estate to secure such loan or loans, and to sell, with the consent of my widow, if living, if not, at their option, at any time they may think proper, any part or all of my real estate to advantage and not a loss, and invest the proceeds of the same in stock or in mortgage on real estate as they may think most safe and secure, for the benefit of my widow and children before named. I do hereby give to my executors hereinafter named, five per cent, on the annual rents, income, and interest of my said estate, as a compensation for their trouble for receiving as well as paying, besides all necessary expenses and disbursements in the management of my estate.
    Lastly, I do nominate, constitute, and appoint John Tilton, of New York city, Samuel H. Adee, merchant, and William Richmond, minister of the gospel, executors of my will.
    Jh witness whereof, I have' hereunto set my hand and seal, the fifth day of November, one thousand eight hundred and forty-nine,—hereby revoking all previous wills by me made.
    F. Weber, [l. s.]
    The defendant, Tilton, died during the progress of the reference, and before the referee made his report.
    The referee reported that the plaintiff had failed to establish any cause of action upon the reference, and that the defendants were entitled to judgment against him for their costs. Judgment in their favor was accordingly entered.
    The cause, upon the appeal from this judgment, was now submitted by the attorneys of the parties upon printed points.
    
      Radcliffe & Whedon for appellants.
    The plaintiff brings this action against the defendants, as executors of the last will and testament of Frederick Weber, late of this city, deceased, to recover $170 53, a balance due for materials furnished, and for work, labor, and services done in and about repairing a certain building in this city, on the Bloomingdale road, known as the Abbey Hotel, belonging to the estate of the said Frederick Weber, deceased.
    The defendants admit that they are such executors; and then simply deny:—1. That they requested the material to be furnished, and employed the plaintiff to do the work. 2. That the Abbey Hotel belongs to the said estate. And 3. That any materials were furnished for, or work done to, the said Abbey and premises.
    The plaintiff should have recovered.
    I. The employment of the plaintiff by the executors clearly appears in the case, and is not attempted to be gainsaid.
    H. The work was done in every respect in good faith, under the employment, and to the value far exceeding the plaintiff’s claim.
    IH. The Abbey Hotel was part or. parcel of the estate of Frederick Weber, deceased. The acts, and the written contract, of defendant, Tilton, show the fact.
    IV. The repairs made were necessary and proper, and a benefit to the estate, and were authorized by the executors under .the will; and having been made in good faith, the plaintiff should have recovered.
    The action is properly brought, and we ask only for, and are entitled to, judgment against the defendants, de honis testatoris. (Story on Con. (2d ed.), 219.)
    V. Executors not only represent the testator, but may, be considered trustees under the will. An executor’s duty as to an estate, is the same as that of a trustee to a cestwi que trust. (Story on Con. (2d ed.), 229, and cases there cited; 1 Story’s Eq. Jurisp. §§ 465,1269 ; Story on Con. (2d ed.), 231.)
    VI. Trustees are bound to perform all acts proper and necessary for the execution of their trusts. In their fiduciary capacity they should exercise the same care a prudent man would of his own property. This being done, they are protected. (Boynton v. Dyer, 18 Pick. R. 6, and cases there cited; Thompson v. Brown, 4 John. Ch. 619.)
    VH. The report' of the referee is defective in not stating sufficiently the grounds or reasons for the report.
    We submit that the plaintiff was entitled to recover upon the evidence'; and that the, judgment should be reversed with costs.
    
      C. J. & E. De Witt for respondents.
    
      The opening points submitted by the appellant appear to us singularly inapplicable to the questions raised by the case, and on which the cause was decided by the referee. A simple statement of the case will sufficiently show the court the defence, and the ground of the referee’s decision.
    Frederick Weber, by his will, devised to his wife, Caroline Cecilia, the rents, issues, and profits of his real estate during her widowhood, for her own support and maintenance, and the education, support, and maintenance of his four children, náming them ; and in case of marriage of wife, he, in lieu of said provision, gives his wife $300, yearly, during her life, to be paid by the executors ; and on marriage or decease of wife, he devises the whole of his estate, real and personal, to his children. There was no trust or power vested in the executors as to the real estate, except a power to sell for certain purposes, with the consent of widow, and in event of such sale to invest proceeds. The testator appointed defendants, John Tilton and Samuel H. Adee, and William Richmond, executors. John Til-ton, one of the executors, instructed certain repairs or alterations to be made oh the Abbey Hotel, and to recover for these repairs or alterations this suit is brought.
    John Tilton, one of the defendants, died while suit was pending.
    There was no evidence produced showing that the surviving defendant, Adee, gave any instructions or had anything to do with the repairs; nor was there any evidence, except the note of Tilton before referred to, that the premises referred to were under the control or management of the- defendants, or that they received the rents. The referee decided correctly on the point raised by the defendants, and it is the same point upon which the surviving defendant submits this case, to wit:—
    That John Tilton, one of the executors since deceased, could not'charge the personal estate in the hands of executors, with money expended on the real estate which the testator devised to his wife and children. (Admitting, for the purpose of this question, that the testator died seized of the premises mentioned in the complaint, and that no disposition has been made of the premises since testator’s death.)
    There can hardly be any occasion for authorities or argument to sustain this point, but a statement of a few facts-by way of argument will make it appear very clear that there can be no other decision in the case than that made by the referee. Mrs. Weber, the widow of the testator, immediately on his decease, entered into the receipts from the tenants of the rents of all the real estate of the testator, and continued to receive them until her marriage, and has continued from the time of her marriage to receive the rents as testamentary guardian of her children, all of whom are minors.
    John Tilton, the deceased defendant, was, in his lifetime, the only acting executor; he received and managed the personal property, and no part of the personal estate has ever come to the hands of the defendant, Adee; and there are not now, nor have there since the commencement of this suit been, any assets in the hands of the executors, out of which this claim could be paid, if established. The defendants could not plead that there were no assets, because this action is on a contract made by the executor as such, and contracts to pay by executors admit that there are assets, and the effect of a judgment against the surviving executor, Samuel H. Adee, would be, that he would be compelled to pay the judgment without having assets, and without an opportunity to show that there were no assets, and without having any recourse on. any other person.
    The only person liable for repairs is the widow of the testator, who was beneficially interested, and who assented to and approved of making the repairs.
   By the Court. Campbell, J.

We are all of opinion that the decision of the referee was entirely correct, and this for the reasons very clearly stated in the printed argument on behalf of the respondent. These reasons are not merely satisfactory, but they scarcely admit of an addition.

As the testator by his will gave to his executors five per cent, on the annual rents, income, and interest of his estate, as a compensation for their trouble, besides their expenses and disbursements in the management of his estate, it is possible that he intended to vest in them his whole estate, real as well as personal, as trustees for his widow and children; but we cannot hold that the words here used, when compared with the other provisions of his will, can be relied on as evidence of his intention to create an estate in his executors, and we have no right to act upon a mere conjecture. The will gives to them a naked power to sell his real estate, but no authority whatever, to make, direct, or pay for, repairs.

It is possible that the defendant Tilton, by signing the paper directing the plaintiff to make the repairs, although he signed as executor, rendered himself personally liable, and that, had he continued in life, a judgment, even upon the pleadings as they stand, might have been rendered against him; but as the defendant Adee is not chargeable as executor, there is no pretence for charging him personally, since there is no evidence that he ever directed, or assented to, the repairs, or even knew that they were made.

The judgment appealed from is affirmed with costs.  