1st. Had the administrator any right or authority to make these payments to Vallejo?
The administrator has only such powers as are given him by statute, by the Act of May 1st, 1851, regulating the settlement of the estates of deceased persons, and those powers are a limitation of the powers given by the common law.
Thus he can compound with a debtor only with the approbation of the Probate Judge. Sec. 201 of Act of 1851.
He cannot enter into an agreement in writing to refer a doubtful claim, except to some disinterested person to be appointed by the Probate Judge. Sec. 142 of Act of 1851.
Neither can he sell personal property except by order of the Probate Court. Sec. 148 of Act of 1851.
The duty of an administrator, then, is plainly defined. He has no discretion to act generally for the good of the estate--to do that which he believes in good faith will be advantageous to it. But he must act according to the law, and the authority given him by the law. If he assumes to exceed his authority in a case where he thinks it will be beneficial to the estate, he does it at his own risk. The law does not require him to do it, and, if loss occurs, does not protect him.
The administrator shall take into his possession both the real and personal estate of the deceased. Secs. 114 and 194 of Act of 1851.
" This, however, is only that hemay receive the rents and profits until the administration is concluded; the law does not make the real estate descend to him as in the case of personalty. By the common law, the real estate is the heir's, the personal estate the administrator's; and this rule is not altered with us, except so far as regards the temporary custody of the realty. Beckett v. Selover, 7 Cal. 215.
The administrator shall keep in good tenantable repair all houses, buildings and fences thereon, which are under his control. Sec. 114 of Act of 1851.
What payments is an administrator authorized to make? See secs. 242, 239.
Sec. 243 provides, that the Court shall make an order for the payment of the debts, as the circumstances of the estate shall require.
And by sec. 219 the administrator shall be allowed all necessary expenses in the care, management and settlement of the estate, and for his services such fees as the law provides.
So far from this payment being a necessary expense in the care, management and settlement of the estate, it seems rather to have been a speculative expense. If the ranch, instead of further decreasing, had improved in value, it would have been beneficial; ifit continued depreciating, it would be disastrous. The administrator, no doubt, thought that the property would improve, and he was willing to run the risk. It did in fact depreciate, and he must bear the loss. It was not, then, a necessary expense, etc.; for if it had not been incurred the estate would have been better off by some thousands of dollars.
But it is argued, that the word " care" used in sec. 219, is broad enough to cover this payment of a mortgage upon real estate. The necessary expenses in the care of the estate would doubtless include the expenses of keeping houses, buildings, etc., in tenantable repair, which the administrator is especially enjoined to do; but certainly it would not embrace the payment of a mortgage upon real estate which the administrator is nowhere authorized to make.
It is said, however, that these payments were made in good faith, and were at the time made with the object of benefiting the estate. But it is not enough to act in good faith merely. In Rossiter v. Cossit, 15 New Hamp. 41, the Court says: " We cannot adopt the principle suggested in the argument for the appellee, that the administrator is to be allowed the amount he has paidin the redemption of the mortgage to the Wardens of Union Church, if he acted in good faith merely." And again: " But notwithstanding that he acted in good faith, if what he did would probably operate to the prejudice of the creditors, and will in fact so operate if he is allowed the amount paid, we must not disregard their interests because of his good intentions."
In Alsop v. Mather, 8 Conn. 586, the general proposition is stated thus: " An administrator is an agent who is created, and whose powers and duty are prescribed by law. The extent of his liability is defined by the condition of his bond."
There are several cases in Louisiana not decided upon any enactment of the Code, which illustrate the general principles declaratory of the limited powers of an administrator. Russell v. Cash, 2 La. 187, republished in 1 Louisiana Reports, 317; Gillett v. Ruchall, 9 Robinson, 279.
An administrator cannot, in any transaction in which he pretends to act as such, create any liability on the estate, or change the nature of its obligations, or increase its responsibility with regard to its outstanding debts, and if he does so, he will be personally bound. Bank of Louisiana v. Dejean, 12 Robinson, 19; and cases commented upon by the Court in that case; see also to this same point, Whightman v. Townroe, 1 Maule & Selwyn, 415; Alsop v. Mather, 8 Conn. 587; Wyse v. Smith et al., 4 Gill & John.
So too, when the widow of the deceased testator entered into an agreement with the executors, by which she relinquished her dower, and they agreed, as executors, to pay her in consideration thereof a certain sum therein specified. The Court held that the estate was not liable on the contract of the executors, but that the contract only bound them personally. Callis v. Tolson's Exctrs., 6 Gill & Johnson, 91.
JUDGES: Baldwin, J., delivered the opinion of the Court. Terry, C. J., concurring.
OPINION
BALDWIN, Judge
This is unquestionably a hard case on the administrator, for he seems to have acted in good faith. But we cannot relax or set aside the rules of law to suit the exigencies of particular cases, or relieve individual instances of hardship.
The statutes of this State do not allow an administrator to pay even the debts due by an intestate except in a particular way. Certainly they do not allow him to pay money not due by an intestate, upon an idea that the payment might be beneficial to the estate. He is to take care of, manage and preserve the estate committed to him; but this does not mean that he is, at discretion, to pay off all incumbrances resting on the property, upon the notion that the property may increase in value, and thereby a speculation may be made for the estate. If this were so, an administrator might consume all the assets of the estate in clearing the title to a portion of the property, and then the property might turn out to be valueless or worth but little. If a case should arise in which a great sacrifice would ensue unless money were paid to discharge an incumbrance, it is not impossible that a Court of Chancery might order the expenditure of the money needed to remove such incumbrance. The rule of equity is, that a trustee has a right, in questions of responsibility and difficulty, to seek the direction of a Court of Chancery, touching his conduct in the trust, and that the decree of the Court is a protection to him. But if he undertakes to go beyond the strict line of his duty as the law defines it, he acts upon his own responsibility, and while he can receive no profit from a successful issue of his investment, he must bear the loss of a failure. It would be a most dangerous precedent to hold that an administrator may speculate with the funds of the estate, or pay charges not allowed by law, though solely with a view of benefiting the estate, and then throw the loss upon the estate, and assign his good intentions as a defense to the injurious consequences of his acts.
The administrator, in the absence of special authority, must administer the estate as he finds it, paying taxes and other necessary expenses, and doing such other acts as are necessary to preserve it as left; he cannot advance money to remove incumbrances, unless his intestate was bound to pay the money. If he takes the responsibility of improving the estate, or bettering the title in this way, it must be at his own risk. The loss cannot be visited upon the heirs, who gave him no authority to cause it. Nor can he ask legal protection, when he has himself, though with the best motives, gone beyond the provisions of the law.
The decree of the Probate Court is affirmed.