M'Beth v. Smith ( 1815 )

Smith, J.

This court has in one or two instances decided-this principle ' before, that an administrator cannot contract a debt to bind the estate of his intestate. It has been settled, and on the fairest principle in the world, that the estate of the intestate can only be liable for the contracts of the intestate himself; but it would be a paradox, not to be solved by legal rules, to say that an administrator-should contract a debt himself, and then he should be sued, and this .debt recovered as one contracted by his intestate. But it appears still more illegal that the administrator should contract a debt himself, for the estate of his intestate, and then make the ad» ministrator de bonis non liable in an action, and recover it against him as a debt contracted by his intestate, when the whole transaction was long after the intestate was in his grave. This is precisely the case in the present action. I would not pretend to say that an administrator should in no case be allowed to contract debts that, should bind the estate of his intestate ; but if he does so, and in many instances it is necessary he should do so, he alone will be liable to the creditor; and his only indemnity is by retaining sos much from the profits of the estate, or by applying to the ordinary, who has the power to allow him compensation for any fair accounts contracted for the benefit of the estate. I am, therefore, of opinion that the rule should be granted.

Colcock, Bkevakd, and Gkimke, Js.} concurred.