
    William P. Willis et al., Resp’ts, v. Aurelius S. Sharp, as Ex’r, etc., App’lt.1 William P. Willis et al., Resp’ts, v. Aurelius S. Sharp, as Ex’r, App’lt.
    
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed December 13, 1887)
    Executors and administrators—Estate on decedent—What is charge upon.
    By the will of the testatrix, her executor was directed to carry on a business with the funds of the estate for the benefit of her son. Held that a person having furnished goods for use in the business to the executor, had a legal claim therefor against the estate. That as the executor was the agent of the legatees and next of kin, such charge was one created for their benefit, and that the estate should respond.
    
      Alexander V. Campbell, for app’lt; Walter S. Logan, for resp’ts.
    
      
       See S. C., 6 N. Y. State Rep., 757.
    
   Pratt, J.

These are appeals from orders appointing a receiver of the estate of Fida 0. Sharp in the hands of her executor, and directing the receiver to pay the plaintiff’s judgment out of the-estate.

Fida 0. Sharp died in 1885, leaving an estate, and a will, which expressly directed her executor to carry on a business with the funds of her estate for the benefit of her son.

The estate at her death consisted of the assets of a tailoring business which she was then carrying on, and the executor continued that business under the direction in the will. The plaintiff furnished the goods in suit to the executor on his order; they were necessary for and they were used in the course of that business.

The defendant Sharp is personally insolvent, but there is sufficient property in the estate to pay for these goods, and the executor refuses either to pay for the goods or to use the assets of the estate for that purpose.

Upon the question of the liability of this estate for the goods so furnished, this general term stands committed, having overruled the demurrer to a complaint which involved precisely the same question. 6 N. Y. St. Rep., 757.

Since the overruling of the demurrer, judgments have been entered which establish the fact that the claim is a legal charge against the estate; and the question, it there can be any question about it, is whether a legal charge against an estate created by an executor for the benefit of the estate, and which has already been adjudicated, must be paid out of the funds of the estate in priority to the payment of the legatees and next of kin.

The appointment of the receiver was a mere incident to enforce the judgment.

It must be borne in mind that this business was carried on under the direction of the wifl for the benefit of the legatees and next of kin. _ The charge was, therefore, created by the trustee for their benefit. The estate having been benefited to the extent of the goods upon which the judgment is based, it seems to me equitable that the estate should pay the judgment.

The executor was the agent of the legatees and next of kin, and if he has mismanaged the business the loss must fall upon his principals.

The principle that the estate must respond for this claim is res adjudicada, in this court.

There seems to be no question of law resting upon this appeal, except what was considered and determined in the former appeal in the order overruling the demurrer, and we see no reason for changing the views then expressed. ■

Order affirmed, with costs.

Dykman, J., concurs; Barnard, P. J., not sitting.  