
    James Mulrein, Respondent, v. Charles F. Smillie and James D. Smillie, as Executors and Trustees under the Last Will and Testament of James Smillie, Deceased, Appellants.
    
      Trust estate — chargeable with repairs only where a contract is made to that effect.
    
    A mechanic who has done work upon a house upon land devised in trust to executors to pay over the rents to a daughter of the testator, and on her death' to convey the land to certain designated persons, cannot recover therefor against the trust estate, unless the complaint alleges that an agreement was made between the trustees and the plaintiff that the expense of the repairs should he. a charge upon the trust fund.
    Appeal by the defendants, Charles F. Smillie and another, as executors and trustees under the last will and testament of James Smillie, deceased, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Dutchess on the 19th day of August, 1897, upon the-decision of the court, rendered after a trial at the Dutchess County Special Term, overruling the demurrer to the complaint interposed by said defendants, which demurrer was based upon the ground that the complaint did not state facts sufficient to constitute a cause of action.
    
      John A. Gamer, for the appellants.
    
      K. J. Lawlor, for the respondent.
   Willard Bartlett, J.:

The complaint -alleges that James Smillie, in his lifetime, was the owner of a certain house and lot known as No. 25 Garfield place in the city of Poughkeepsie; that the said James Smillie died, in 1885 leaving a last will and testament, in which the defendants were named as executors and trustees; that such will was duly admitted to probate and the defendants duly qualified as executors and trustees, and have continued to act as such down to the present time; that between July 12, 1895, and March 3, 1896, the plaintiff, at the request of the defendants rendered services to them as executors and trustees as aforesaid “in constructing and preparing the plumbing on the property at No. 25 Garfield place in the city of Poughkeepsie, held by said defendants as executors and trustees under the last will and-testament of said James Smillie, deceased,” and furnished materials therefor for which said defendants agreed to pay; that the fair value of such services and materials is $371.08 ; and that the plaintiff has demanded from the defendants payment of said sum, but no part thereof, has been paid.

A copy of the will of James Smillie is attached to the complaint and made a part thereof. By the 1st article, the testator devises and bequeaths all his estate to his executors in trust for the uses and purposes subsequently mentioned in the will. By the 2d article, he orders and directs that the said trustees apply the rents and profits of the lot of land known as No. 25 Garfield place in the city of Poughkeepsie, together with the rents and profits of all the buildings thereon, to the use of his daughter Mary S. Throop during her lifetime. Upon her decease,, the trustees are directed to grant and convey the said premises to the lineal descendants of the daughter, or to certain other persons if she leaves no lineal descendants. The further provisions of the will are not material to the present controversy.

The learned judge at Special Term thought that the facts set out in the complaint were sufficient to render the estate of James Smillie liable for the value of the plaintiff’s services, because the defendants as executors and trustees were legally bound to keep the premises in repair. He, therefore, directed judgment for the plaintiff upon the demurrer.

In common-law actions it has repeatedly been decided that a debt contracted by an executor or administrator as such, and for the benefit of the estate which he represents, only binds him individually, and does not bind the estate. (Ferrin v. Myrick, 41 N. Y. 315; Austin v. Munro, 47 id. 360; Willis v. Sharp, 113 id. 586, 591; Matter of Van Slooten v. Dodge, 145 id. 327, 332.) In the case last cited it is said : An executor cannot subject the estate in his hands for administration to some new liability, either by his contract or by his wrongful act.” This is a statement of the general rule. On the other hand, a testator may give such directions in his will in reference, to the management of his estate as to render it liable in equity for debts contracted by his executors. (Willis v. Sharp, supra.)

A similar general rule, subject to a like exception, has been held to apply to trustees of real estate. (New v. Nicoll, 73 N. Y. 127.) In the case cited the defendant was the trustee- of certain premises to receive the ■ rents, issues and profits thereof, and after paying therefrom all taxes, assessments and other charges thereon,” to apply the rest and residue to the use of a beneficiary named in the instrument creating the trust, during her life, and upon her death to convey it in accordance with the testamentary directions of such beneficiary. The plaintiff sued to recover the agreed value of work done and materials furnished in the repair of buildings upon the property held by the defendant in trust. He succeeded upon the trial, but the judgment in his favor was reversed at the General Term, and the reversal was sustained in the Court of Appeals. The opinion of the General Term was written by Mr. Justice Gilbert, who held that the duty of the trustee to pay taxes, assessments and other charges ” upon the premises related to liens or incumbrances which Avere paramount to the trust, and not to expenditures for repairs upon the property. A trustee cannot bind the trust estate by an executory contract,” he said, and “ the facts that the plaintiff made the repairs, relying on- the authority of the trustee and on the trust estate, and that the repairs were necessary for the preservation of the subject of the trust, and that the trustee had no trust funds, we think do not take the cause out of the principle stated. The reliance of the plaintiff was simply a mistaken one on his part. The law does not: justify it.” (New v. Nicoll, 12 Hun, 431.)

To the same effect is the opinion in the Court of Appeals, which was written by Eabl, J., who said“ The general rule undoubtedly is that a trustee cannot charge the trust estate by his executory contracts unless authorized to do so by the terms of the 'instrument creating the trust. Upon such contracts he is personally liable, and the remedy is against him personally. But there are exceptions tó this general rule. When a trustee is. authorized to make an expenditure and he has no trust funds, and the expenditure is necessary for the protection, reparation or safety of the trust estate, and he is not willing to make himself personally liable, he may, by express agreement, make the expenditure a charge upon the trust estate.”

The proof there, however, did not bring the case within the exception mentioned, nor do the allegations of the complaint in the present action suffice to show that there was any agreement between the parties to the effect that the expense of the plumbing to be done by the plaintiff should be a charge upon the trust estate. The existence of some such agreement being essential to the successful prosecution of his claim against the defendants as executors and trustees, the plaintiff was bound to plead it, and his failure to do so makes his complaint fatally defective. The demurrer of the defendants should, therefore, have been sustained.

AH concurred, except Woodwaed, J., not sitting.

Interlocutory judgment overruling demurrer reversed and judgment directed for defendants on demurrer, with costs, with leave to. the plaintiff, within twenty days, to serve amended complaint on payment of the costs of the demurrer and of this appeal.  