Warren County MsArchives Court.....Stilwell, Everett 1839
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Source: Reports Of Cases Argued And Determined In The High Court Of Errors And Appeals Of The State Of Mississippi
Written: 1839

Sims v. Stilwell.

pages 176-183

The executor is individually responsible, where he promises to pay an account 
stated, when it does not appear that it was for money due by the testator, 
although he expressly promised "as executor."

A written acknowledgment of the receipt of specific articles, is a sufficient 
proof of consideration to support a promise to pay.

ERROR to the circuit court of Warren county.

This was an action of assumpsit tried before the Hon. George Coulter at the 
May term of said court, 1838. It was founded on the promises of defendant, to 
pay the plaintiff for the purchase of lumber to enable the defendant to 
complete certain buildings of his testator, which defendant promised to pay in 
writing.

Two agreements were offered in evidence in support of the action. 1. An 
account of Hord (the testator) and Sims to John Bobb for 6049 feet of lumber, 
amounting to 211 dollars and 71 cents; under which account was the following 
agreement:

"I as executor am responsible to William H. Sims for the amount of the above 
account, two hundred and eleven dollars and 71 cents, when he shall have 
settled the same with John Bobb and taken his receipt for it. March 22d, 1837, 
charged to W. H. Sims. J. B. (Signed) EVERETT STILWELL, Executor.

"The within bill of John Bobb, is for lumber for the house of Lewis Hord 
deceased, which I as executor am having completed. 22d March, 1837. (Signed) 
E. STILWELL.

“Rec'd this 6th March, 1838, of Wm. H. Sims, two hundred and twenty eight 64-
100 dollars, in full of principal and interest on the within.	(Signed) J. 
Bobb."

The court rejected this account and agreement, on the ground that it showed, 
if any debt, a claim upon the testator’s estate, and not on defendant 
personally. To this opinion, exceptions were taken and signed.

The second agreement offered in evidence, and permitted to go to the jury, was 
as follows:

"I Everett Stilwell executor admit and acknowledge, that the bill of John 
Miller for lumber, furnished in William H. Sims' order since the death of 
Lewis Hord, amounting to about seven or eight hundred dollars is just, and 
that I will pay the same. Said lumber having been furnished for carrying on a 
building which I as executor of said Hord's estate am having completed. 
(Signed) EVERETT STILWELL, Executor."

To this agreement there was annexed the receipt of said Miller. The signatures 
to said contracts and receipts were admitted.

The defendant introduced said Miller as a witness, who deposed that the lumber 
referred to in his receipt was furnished on the order of Sims, who paid for 
it; that it was refused on the order of defendant as executor of Hord.

Another witness, Garrison, was introduced, who said he built a house for Sims 
and Hord with said lumber, and received instructions from both plaintiff and 
defendant, Stillwell, in relation to the business. The defendant also called a 
witness to prove that the house in question was built on a lot sold by him to 
the plaintiff, and said Lewis Hord, deceased. This evidence was objected to by 
the plaintifF, but admitted by the court, which opinion was excepted to by the 
plaintiff's counsel.

At the close of the trial the court instructed the jury,

1. That if they believed the defendant intended to bind himself only as 
executor of Hord, by his promise to pay Miller for lumber, they must find for 
the defendant.

2. That if there was no consideration, they must find for defendant.

3. That if they believed the lumber was furnished for a house built or a lot 
belonging to Hord and Sims, and the contract for building it was made 
originally by Hord and Sims, then this was a debt of Hord and Sims, and the 
finding must be for the defendant. To which charge exceptions were taken, and 
allowed.

Verdict for defendant, and a writ of error to this court.

Norcom and Mason, for the plaintiff in error.

The first question which arises is, whether the defendant below was not liable 
personally, for his promise made as executor, said promise having been made 
for a cause and matter, arising since testator’s death? Myer et al. v. Cole & 
Myers' Ex'r., 12 Johns. Rep. 349; Carter v. Phelps, Adm'r., 8 Johns. Rep. 440.

From the evidence in the cause, it will be seen that the lumber in question 
was refused to defendant in his capacity as executor, he having endeavored to 
obtain it, to complete certain unfinished buildings of his testator's, and was 
furnished to Sims's order and charged to him, and paid for by him and 
defendant assumed to pay Sims, which wil1 furnish ample consideration for said 
promise.

The next error assigned, the introduction of parol testimony to establish 
title to real estate, needs no comment, or reference to authority.

The last error assigned, the charge of the judge (as given) was not called for 
by either party, was irregular.

Marshall, for the defendant.

The principal question for the consideration of the court in this case, and 
the one upon which the plaintiff's right to recover must depend, is, was there 
any consideration upon which to base the defendant’s promises, or either of 
them? For unless there appears in the record sufficient evidence of some 
consideration to found those promises upon, the second instruction of the 
court below must necessarily be sustained, and the plaintiff's action defeated 
as a matter of course. The mere fact of a promise being in writing is not 
conclusive, nor in some cases even prima facie evidence of a consideration. In 
cases of bonds, specialities, &c., and in cases of bills of exchange and other 
negotiable instruments it is admitted that no consideration need be proved, 
because they carry with them "internal evidence" of a consideration. But in no 
case is a mere written agreement to pay the debt of another, unless there be a 
sufficient consideration, and it has even been said that it should be 
expressed, a good cause of action. Thatcher et al v. Dinsmore, 5 Mass. Rep. 
299. And the same principle is again recognised in the case of Carver v. 
Warren, Ibid. 545. The statute of frauds, which requires a promise to pay the 
debt of another to be in writing, does not take away the necessity of a 
consideration; it was made for the relief of personal representatives, and did 
not intend to charge them further than by common law they were chargeable. 2 
Wheaton's Selwyn, 4th Am. and 7th London Ed. p. 56. See also the case of Wain 
v. Walters, 5 East, 10. What then was the consideration which passed to the 
defendant, either in his own right, or as executor of Lewis Hord? Did he 
derive any benefit or advantage from the lumber furnished by John Bobb to his 
testator and the plaintiff, in the lifetime of his testator? Surely no one 
will contend he did. Was not the plaintiff himself liable to Bobb for the 
whole of the lumber furnished by him and mentioned in said exhibit A, in his 
character of surviving partner, &c., at the time he paid the money as he 
charges in his declaration? Most certainly he was. And shall then the 
plaintiff be permitted to recover money from the defendant for doing that 
which by law the plaintiff was bound to do, viz. paying his own debts, and 
from the payment of which the defendant derived no benefit whatever? "If he 
were, it would be manifestly unjust and oppressive. That the debt due to Bobb, 
and mentioned in exhibit A was the debt of the defendant's testator and the 
plaintiff jointly, is evident from the account itself as made out by Bobb. 
When it was paid, therefore, by the plaintiff either the heirs at law of the 
defendant's testator, or the defendant in his fiduciary character was liable 
to him for one half the amount so paid, and no more. And consequently, any 
promise by the defendant to pay the whole of it out of his own funds was void.

The debt due to the witness Miller, was also the debt of the plaintiff, in 
part, and in part the joint debt of the plaintiff and the testator of the 
defendant; for the witness, Miller, expressly proves that part of the lumber 
was furnished to Sims & Hord before Hord's death, and the remainder upon the 
order of Sims. And the witness, Garrison, proves that he was employed by Sims 
& Hord to build the house in which the lumber was used. And that he looks to 
Sims and the estate of Hord for his pay. It, therefore, clearly follows that 
this was the debt of the firm Hord & Sims, and of Sims as the surviving 
partner; and not the debt of the defendant, either in his individual or 
fiduciary character. Nor was the defendant liable to Miller in any manner, 
except for one half of the lumber furnished during the lifetime of his 
testator. And for that only in his character of executor. The court then was 
right in instructing the jury that if they believed the lumber was furnished 
for a house to be built upon the lot of Hord & Sims, and the contract for 
building it was originally made by Hord & Sims, then this was a debt of Hord & 
Sims, and they must find for the defendant. The witness, Garrison, was not 
introduced to "prove title to real estate," but to prove that the lumber 
furnished by Miller was used in the construction of a house built by contract 
with Hord & Sims, it was no matter upon whose lot. And that the house was 
built by them as partners, and consequently to show that the plaintiff in 
paying Miller for the lumber did nothing more than he was morally as well as 
legally bound to do, that he was paying his own and not the debt of the 
defendant. It will not, I presume, be contended that the defendant has been 
personally benefitted either by Mr. Miller's furnishing the lumber or Mr. Sims 
paying for it. Nor was he under any moral or legal obligation to pay either of 
them one cent, at the time he gave to the plaintiff the written agreement. And 
if that be true, it must follow that that agreement was given without any good 
and sufficient consideration enabling the plaintiff to maintain his action. 
Nor did the defendaut derive any benefit from it as executor; for, admitting 
that the house and lot belonged exclusively to Hord, (an admission we are by 
no means prepared to make,) it was not competent for the executor to expend 
the assets in his hands in improving real estate, as he would not be 
increasing the assets by enhancing the value of the real estate. He has no 
legal control or management of the real estate, except so far as it is given 
to him by the express order of the court to enable him to pay the debts of his 
testator, nor has he a right to make any contracts, as executor, for the 
improvement of it. That belongs exclusively to the heirs at law. And any 
improvements put upon it redounds exclusively to their benefit; they or their 
guardians have the sole management of it, and they alone are, therefore, 
liable for any thing expended on it. Whatever contract, therefore, an executor 
makes touching real estate is without authority and void. The promise was 
not "made for a cause and matter arising since the testator's death," as is 
conclusively proved by the testimony of Miller and Garrison. Nor are the cases 
of Carter v. Phelps's Adm'r in 8 Johns Rep., and Myer et al. v. Cole and 
Myers' Ex’r, in 12 Johns. Rep., cited by counsel for the plaintiff, at all 
analogous to the one under consideration. The only question decided by those 
cases is, that two counts, one for a cause of action arising before the death 
of a testator, or intestate, and the other for a cause of action arising after 
his death, cannot be joined; or in other words that an executor cannot be sued 
in his own right, and in his fiduciary character in one and the same action: 
which is certainly correct, for the obvious reason, that there would have been 
two separate and distinct judgments of totally different characters.

If, therefore, the debts due to Bobb & Miller were the debts of the plaintiff, 
and that the defendant’s said agreements were without consideration, it does 
certainly seem to follow that the judgment of the court below must be affirmed.

Hughes on the same side, cited 5 Johns. Rep. 272.

Mr. Chief Justice SHARKEY delivered the opinion of the court.

The plaintiff instituted this action on the written promises of the defendant, 
made by him as executor, and the question is, whether he is liable in that 
capacity, or individually?

By first laying down the principles of law, we can the more readily make an 
application of them to the case before us.

An executor is individually responsible, although he expressly promise "as 
executor," where the nature of the engagement necessarily creates an 
individual liability. For example, for money had and received, for money due 
on an account stated, when it does not appear that it was for money due by the 
testator; on a promissory note or other written contract, when it does not 
clearly appear that it was given or made for a debt or liability of the 
testator; or if it be made to pay at a future day with interest, which 
necessarily makes it the debt of the executor individually. Powell v. Graham, 
Executor, 7 Taunt. 581; Chi1ds v. Monins & Bowles, 6 Eng. Com. Law Rep. 200; 
Chitty on Contracts, 84.

The first contract set out in the bill of exceptions, follows an account for 
lumber charged to Hord & Sims. The account amounts to 211 dollars and 71 
cents, and the agreement evidently refers to it as the foundation of the 
undertaking, and was probably made at the bottom of the account on the same 
paper. The agreement is in these words: "I, as executor, am responsible to 
William H. Sims, for the amount of the above account, 211 dollars and 71 
cents, when he shall have settled the same with John Bobb, and taken his 
receipt for it. 22d March, 1837. Everett Stilwell, Executor." Following the 
agreement is this memorandum: "The within bill of John Bobb is for lumber for 
the house of Lewis Hord deceased, which I as executor, am having completed. 
22d March, 1837. Signed E. Stilwell." This contract must be taken altogether, 
and not any particular part of it separately. What is the legal effect? The 
lumber is charged to Hord & Sims, and this is the only evidence that it was a 
debt due by Hord in his lifetime. Then comes the agreement of the defendant to 
be responsible, and it is made in reference to the account as stated. There is 
nothing to confine its operation to the defendant as executor, unless it be 
the words "as executor," used in the promise, and they cannot have that 
effect. Next comes the memorandum, showing that the lumber was for a house 
which the defendant was then having completed. This explanation counteracts 
the effect of the charge in the account to Hord, by showing that the defendant 
was engaged in completing a house with the lumber. So far, therefore, from 
this contract showing a debt due by Hord in his lifetime, its evident tendency 
is to show the reverse. Nothing but an individual liability was here created. 
We cannot know that the defendant had any authority to complete a house, or to 
make the estate liable for it. Usually executors are individually liable for 
all contracts they may make. The testimony of the witnesses does not 
materially change the case, even if it were competent to change the nature of 
the contract by parol testimony. One of the witnesses stated that he was 
employed to work on the house by Hord and the plaintiff, and that after Hord’s 
death, the defendant took the management of the building. It does not appear 
by his testimony, that this lumber was purchased by Hord. This contract was, 
therefore, improperly rejected by the court.

The next agreement is in these words: "I Everett Stilwell, executor, admit and 
acknowledge, that the bill of John Miller, for lumber furnished on William H. 
Sims’ order, since the death of Lewis Hord, amounting to about seven or eight 
hundred dollars, is just, and that I will pay the same, said lumber having 
been furnished for carrying on a building, which I, as executor of Hord’s 
estate, am having completed. This 22d March, 1837. Everett Stilwell, 
Executor." In reference to this contract, there certainly can be no pretence, 
that it makes the defendant liable as executor only. It is clearly an 
undertaking which makes him individually responsible. The court, therefore, 
erred in charging the jury, that if they believed the defendant intended to 
bind himself only as executor of Hord, they must find for the defendant. And 
also, in charging that it was necessary to prove the consideration. The 
promise is an express acknowledgment, that the lumber had been furnished on 
the order of Sims, and it was proved that it had been paid for by Sims. The 
consideration was sufficiently proved.

Judgment reversed, cause remanded, and venire de novo awarded.


Source: Reports of Cases Argued and Determined in the High Court of Errors and 
Appeals of the State of Mississippi, by Volney E. Howard, Reporter to the 
State; Vol. III; Containing the Cases for December Term, 1838, and January 
Term, 1839. NEW ORLEANS: E. JOHNS & CO., STATIONERS’ HALL, 1839.

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