Riblet v. Wallis , 1 Daly 360 ( 1863 )

By the Court.^*

Daly, J.

Two points are made by the defendant: 1. That the engagement entered into by Larkin with Harris in Mrs. Larkin’s life time was in his individual capacity; 2. That he had no authority under the will to charge her estate for the work performed by Harris and the materials which he furnished towards the erection of the dwelling Lou so and in the repairs of the other buildings.

As respects the first point it is sufficient to say that as the contract was for repairs and improvement upon property forming part of Mrs. Larkin’s separate estate, the presumption would be that the contract was made on her behalf. The fact that nothing was said between Larkin and Harris, that the former was acting in a representative character, and that the work and materials were charged to Larkin upon Harris’s books, would not overcome this presumption. It would prevail, unless the con fcrary distinctly appeared. The referee has found that the contract during Mrs. Larkin’s life time was made by Larkin by his wife’s authority and I think he was warranted in so finding. Larkin left an order at Harris’s place to have the work done and the material furnished, and it was in evidence tha.t Mrs. Larkin was seen at the building while it was in the course of erection and directed alterations to be made in the work; that Larkin complained that the building was too expensive, and that she replied that it was her own house and that she would have it rightly done, and completed as she wanted it. This was certainly sufficient to warrant the referee in concluding that what was done for the improvement and benefit of her property was by her authority, and had she survived, her separate estate could have been charged in equity for the payment of the debt. (Owens v. Dickenson, Craig & Philips, 48 ; Field v. Dawle, 4 Russ., 112; Macqueen on Husband and Wife, 330.) What was done after her death, was but carrying out and completing what she had herself begun, and there can be no other conclusion under the evidence but that Larkin in doing what she had ordered to be done, and which was partially executed during her life time, was acting as the representative of her estate, and not in his individual capacity.

The provision in the will that he was “ to manage her estate ” as he might deem most for the interest of those interested, especially in its connection with the authority given to him to sell or mortgage the whole or any part of it in his discretion and to reinvest the proceeds and to change and alter such reinvestment at his pleasure, indicates very clearly that it was the intention of the testatrix that he should have authority to do whatever might be essential to the preservation and benefit of her estate, the rents, issues and profits of which he was to enjoy during his life, and the completion of the dwelling house and of the repairs upon the other building were acts proper and necessary in the care and management of the estate.

Lord Coke declared in Quick v. Ludborrow, (3 Bulst., 30) that if a man is hound to build a house for another by a certain day, and he dies before the day, his executor must perform the contract, from which it equally follows that if a man employ another to build a house for him and he dies before the house is finished, his executor is liable for the fulfillment of the testator’s part of the contract. (Siboni v. Kirkman, 1 Mees. & W. 423; Marshal v. Broadhurst, 1 Cromp., & Jer., 403; Wentworth v. Cock, 10 A. & E., 42; 2 Williams on Executors, 1453.) Larkin therefore would have been liable to Harris as executor if Harris had not been allowed to eo on and com-O píete the house, which was partially erected when the testatrix died, as well as to complete the repairing of the ocher building. As executor therefore it was proper for him to allow Harris to finish what he had begun in the testatrix’s life time, and lie would . have had the right to pay Harris out of the pereonal estate in his hand, and as Larkin died' before Harris was paid, the defendant, "who has succeeded to the administration of the estate, is liable in his representative character to Harris’ assignor. I cannot see that it makes any difference in this respect that Larkin had a life interest in the estate of which the dwelling house and the other buildings formed a part. The completion of the unfinished building and the repairs were beneficial to the whole estate, and as lie did not order the erection of the building or the repairs, but simply finished what the testatrix had begun in her life time, he was not personally liable to the builder for what had been done after her death, but was answerable in his representative character, as executor, upon the whole contract, as well for what was done after as before her death.

-Judgment affirmed.

* Nov. Gen. Term, 1030. Present Ingraham, F. J., Daly and Brady JJ.