behalf of the association with third persons are free from difficulty in principle. In so far as the obligation was created in a manner authorized by articles of agreement or by-laws, the individual members are liable; beyond that each one is liable only so far as he has personally assented to the transaction in question.53 Those who are bound are presumably bound jointly.54 Unless bound by their implied agreement when they joined an association, members are not liable for obligations unauthorized by them, though authorized by the majority of their fellow members. 55 § 309. Procedure in enforcing rights and liabilities of unincorporated associations. The difficulty of procedure in actions by or against the members of an unincorporated association where the members are numerous, has led to the enactment in England, and some of the United States, of statutes authorizing suits in the name 53 Flemyng v. Hector, 2 M. & W. 172; Cockerell v. Ancompte, 2 C. B. (N. S.) 440; Davison v. Holden, 55 Conn, 103, 10 Atl. 515, 3 Am. St. Rep. 40; Lewis v. Tilton, 64 Ia. 220, 19 N. W. 911, 52 Am. Rep. 436; Reding v. Anderson, 72 Ia. 498, 34 N. W. 300; Newell v. Borden, 128 Mass. 31; Volger v. Ray, 131 Mass. 439; Ray v. Powers, 134 Mass. 22; Clark v. O'Rourke, 111 Mich. 108, 69 N. W. 147, 66 Am. St. Rep. 389; Jenkinson v. Wysner, 125 Mich. 89, 83 N. W. 1012; Detroit Life Guard Band v. First Michigan Infantry, 134 Mich. 598, 96 N. W. 934; Heath v. Goslin, 80 Mo. 310, 50 Am. Rep. 505; McCabe v. Goodfellow, 133 N. Y. 89, 30 N. E. 728, 17 L. R. A. 204; Lightbourn v. Walsh, 97 App. Div. 187, 89 N. Y. S. 856; Hosman v. Kinneally, 43 N. Y. Misc. 76, 86 N. Y. S. 263; Devoss v. Gray, 22 Ohio St. 159, 45 N. Y. Misc. 411, 90 N. Y. S. 357; Ash v. Guie, 97 Pa. 493, 39 Am. Rep. 818; Winona Lumber Co. v. Church, 6 S. Dak. 498, 62 N. W. 107; Fredendall v. Taylor, 23 Wis. 538, 99 Am. Dec. 203. In the case of McCabe v. Goodfellow, and Hosman v. Kinneally, supra, the court found the authority of the managers was confined to expenditures to the extent of a contributed fund, and that there was no power to bind individual members beyond that, even for contracts of a kind contemplated in the purposes of the association, but in the latter case property turned over to the members of the association had been increased in value by the discharge of liens. These liens had been paid from the fund contributed for carrying on business, and a third person who had contracted with the managers of the association was held entitled to enforce his claim against such property of the association to the extent of the funds used to discharge the liens. 54 See infra, § 322. 55 Willcox v. Arnold, 162 Mass. 577, 39 N. E. 414. In this case all the members of a college class but one voted to publish a class book. It was held that all but the non-assenting member were liable for the expenses of publication. of the association.56 Apart from such statutes, the rules of procedure requiring all who are jointly entitled to sue, or jointly liable to be joined as defendants are applicable.57 It is sometimes difficult to tell in case of written contracts whether the intent was to bind personally an agent or officer of an unincorporated society, or to bind the society itself; that is, all its members. There is no distinction in principle, however, between such a case where the principal is an incorporated society, from cases where the principal is an individual or corporation.58 It is to be observed, however, that where the principal is an unincorporated association, and the agent is a member of it, the agent becomes liable personally, whether he enters into obligations on behalf of the association or on his own behalf. If he contracted on behalf of the association he is entitled by plea in abatement to demand that the other members be joined as defendants, but he cannot himself escape liability.59 § 310. Executors and administrators are liable personally on their contracts. For debts and obligations of a deceased person his executor or administrator is not personally responsible. The right of the creditor is limited by the assets of the estate. The executor or administrator in theory continues the person of the deceased for the purpose of being sued as well as of bringing action, but such judgments as are rendered against the personal representative for debts of the deceased, can be satisfied only out of the property of the latter.60 Any contract made after 56 See Taff Vale Ry. Co. v. Amalgamated Society, [1901] A. C. 426; Davison v. Holden, 55 Conn. 103, 10 Atl. 515, 3 Am. St. Rep. 40; Detroit Life Guard Band v. First Michigan Infantry, 134 Mich. 598, 96 N. W. 934; St. Paul Typothetæ v. St. Paul Book Binders' Union, 94 Minn. 351, 102 N. W. 725; Curran v. Galen, 152 N. Y. 33, 46 N. E. 297, 37 L. R. A. 802, 57 Am. St. Rep. 496; Wunch v. Shankland, 59 N. Y. App. D. 482, 69 N. Y. S. 349. 57 Karges Furniture Co. v. Amal gamated Woodworkers, 165 Ind. 421, 75 N. E. 877, 2 L. R. A. (N. S.) 788. 58 As to contracts of this sort, see supra, § 281. See also Thompson v. Garrison, 22 Kans. 765, where an invitation by the elders of a church in behalf of the congregation was held to bind the signers. 59 Thompson v. Garrison, 22 Kans. 765; Detroit Life Guard Band V. First Michigan Infantry, 134 Mich. 598, 96 N. W. 934. 60 See Williams on Executors (7th Am. ed.), 1593 et seq. As to what * the testator's death by an executor or administrator is necessarily his personal contract, as the common law does not recognize the estate of a deceased person as an entity.61 This is true even though the contract is a proper one, and perhaps directed by the testator's will. Thus if an executor is authorized by will or otherwise to carry on the testator's business, he becomes personally liable for the debts so incurred.62 So contracts for funeral expenses; 63 or other contracts properly entered into for the administration of the estate,64 as where an executor employs counsel in matters relating to the estate, bind the executor personally.65 But it is otherwise of quasi-contractual obligations. If an executor or administrator receives, as part of the testator's contracts of a deceased person cease to be obligatory upon his estate see infra, § 1940. A contract to pay money after one's own death is valid. Charron v. Day, 228 Mass. 305, 117 N. E. 347. 61 Lyman v. National Bank of the Republic, 181 Mass. 437, 438, 63 N. E. 923, and see cases in the following notes. 62 In re Johnson, 15 Ch. D. 548; Dowse v. Gorton, [1891] A. C. 190; Foxworth v. White, 72 Ala. 224; Roses' Estate, 80 Cal. 166, 22 Pac. 86; Stephens v. James, 77 Ga. 139, 3 S. E. 16; Miller v. Didisheim, 95 Ill. App. 321; Howe v. Richardson, 186 Mass. 259, 71 N. E. 543; Laible v. Ferry, 32 N. J. Eq. 791; Doolittle v. Willet, 57 N. J. L. 398, 31 Atl. 385; Willis v. Sharp, 113 N. Y. 586, 21 N. E. 705, 4 L. R. A. 493; Decillis v. Mascelli, 152 N. Y. App. D. 304, 306, 136 N. Y. S. 573; Braun v. Braun, 14 Manitoba, 346. Cf. Dwyer v. Kalteyer, 68 Tex. 554, 5 S. W. 75, holding that an executor is not liable to creditors where a statute authorized the executor to continue the business. And Fleming v. Kelly, 18 Col. App. 23, 69 Pac. 272, holding the executor not liable where the business was carried on under the order of the Probate Court. 63 Brice v. Wilson, 8 A. & E. 349, n.; Corner v. Shew, 3 M. & W. 350; Trueman v. Tilden, 6 N. H. 201. For such expenses, unless actually contracted for by the representative, it seems his liability would be limited to the extent that there were assets in the estate. See besides cases cited above, Hapgood v. Houghton, 10 Pick. 154; Patterson v. Patterson, 59 N. Y. 574; France's Estate, 75 Pa. 220. 64 Farhall v. Farhall, L. R. 7 Ch. App. 123; Massey v. Doke, 123 Ark. 211, 185 S. W. 271; Taylor v. Mygatt, 26 Conn. 184; Bott v. Barr, 95 Ind. 243; Manning v. Osgood, 151 Mass. 148, 23 N. E. 732; O'Brien v. Jackson, 167 N. Y. 31, 60 N. E. 238; LeBaron v. Barker, 143 N. Y. App. D. 492, 127 N. Y. S. 979. 65 Tucker v. Grace, 61 Ark. 410, 33 S. W. 530; McKee v. Soher, 138 Cal. 367, 71 Pac. 438, 649; Long v. Rodman, 58 Ind. 58; Clark v. Sayre, 122 Iowa, 591, 98 N. W. 484; Brown v. Quinton, 80 Kans. 44, 102 Pac. 242, 25 L. R. A. (N. S.) 71; Clopton v. Gholson, 53 Miss. 466; Howell v. Myer, 105 Miss. 771, 63 So. 233; State ex rel. Kelly v. Second Judicial Dist. Court, 25 Mont. 33, 63 Pac. 717; Wight v. Dolenty, 53 Mont. 168, 162 Pac. 387; Wait v. Holt, 58 N. H. 467; Platt v. Platt, 105 N. Y. 488, 12 N. E. 22; Parker v. estate, assets which equitably belong to another, the obligation to restore them to the true owner runs against the executor or administrator in his official capacity as continuing in law the person of the deceased, and judgment will be given against the goods of the estate. And similarly if a payment is made on behalf of the estate or a benefit conferred upon it by a third person under such circumstances that had a similar payment or benefit been rendered to a living person, a quasi-contractual right against him would have existed, such a quasi-contractual right also arises against the executor or administrator of the estate in question, in his official capacity and judgment will go against the goods of the deceased.67 As the contracts of an executor or administrator bind him personally, if on his death an administrator de bonis non is appointed, the latter is not liable even upon contracts rightfully made by his predecessor in office.68 § 311. Executors and administrators may by special stipulation exempt themselves from personal liability. Even though the consequence of a stipulation in an agreement with an executor or administrator that he shall be subject to no personal liability is that no contract whatever arises for lack of a contracting party, plain words of exemption must be and are given effect.69 Though no contract with the Day, 155 N. Y. 383, 49 N. E. 1046; In re Nocton's Est., 162 N. Y. S. 215; Besancon v. Wegner, 16 N. Dak. 240, 112 N. W. 965; Thomas v. Moore, 52 Ohio St. 200, 39 N. E. 803; Waite v. Willis, 42 Ore. 288, 70 Pac. 1034; In re Sullivan's Estate, 36 Wash. 217, 78 Pac. 945; Thompson v. Mann, 65 W. Va. 648, 64 S. E. 920, 22 L. R. A. (N. S.) 1094, 131 Am. St. Rep. 987. But see Greene v. Grimshaw, 11 Ill. 389. 66 De Valengin's Adm. v. Duffy, 14 Pet. 290, 291, 10 L. Ed. 457; Terry v. Furguson, Adm., 8 Port. (Ala.) 500; Crowder v. Shackleford, 35 Miss. 321, 359; Scheibeler v. Albee, 114 N. Y. App. D. 146, 99 N. Y. S. 706; Conger v. Atwood, 28 Ohio St. 134, 22 Am. Rep. 362; Thomas v. Moore, 52 Ohio St. 200, 205, 39 N. E. 803. 67 Ashby v. Ashby, 7 B. & C. 444; Haynes v. Forehaw, 11 Hare, 93, 104; Steele v. McDowell, 9 Sm. & M. 193; Wall v. Kellogg's Ex., 16 N. Y. 385; Arbuckle v. Tracy, 15 Oh. 432; Conger v. Atwood, 28 Ohio St. 134, 141, 22 Am. Rep. 362; cf. Farhall v. Farhall, L. R. 7 Ch. App. 123. 68 Ferrin v. Myrick, 41 N. Y. 315; Fitzsimmons v. Safe Deposit & Trust Co., 189 Pa. 514, 42 Atl. 41. 69 Long v. Rodman, 58 Ind. 58, 62; Grafton Nat. Bank v. Wing, 172 Mass. 513, 52 N. E. 1067, 43 L. R. A. 831, 70 Am. St. Rep. 303; Germania Bank v. Michaud, 62 Minn. 459, 65 N. W. 70, 30 L. R. A. 286, 54 Am. St. Rep. 653; Douglass v. Leonard, 17 N. Y. S. 591, 593. estate, as such, is possible, it is possible that the executor shall agree to perform only to the extent that the assets of the testator's estate permit, and that the person with whom the executor contracts shall accept such a limited promise in return for his own promise or performance.69 Probably such an agreement often more nearly expresses the intent of the parties than the obligation which is inferred by the law generally prevailing. In a New York case,70 Selden, J., said: "I am of opinion, that where the contract itself is ostensibly made in behalf of the estate, and relates exclusively to matters in which the executor or administrator has no personal interest, if the latter, in making the contract, describes himself as executor, &c., the presumption is, that he intended to bind the estate and not himself. This would be found in most cases to be in accordance with the facts, and such I think is the legal inference." It is probable that this language in freeing the executor from liabilities goes beyond the warrant of most decisions though not beyond what is reasonable. According to the weight of authority even though the identification of the estate for which the executor is acting is disclosed, and though the business concerns the estate, in the absence of language necessarily showing a contrary intent, the executor entering into a contract binds himself personally."1 In view of the fact that unless the executor or administrator is a party to a contract made by him, no contract can exist, it follows in formal contracts, such as negotiable instruments, even more clearly than in regard to such instruments signed by agents or by officers of a corporation with the addition of an official designation,72 that the signature of an executor or administrator with the addition of his title renders him personally liable.73 A note, however, which is signed "Estate of A, 694 See infra, § 312, as to such promises by trustees. 70 Chouteau v. Suydam, 21 N. Y. 179, 182. 71 See cases cited in preceding section. 72 See supra, § 299, as to such obligations. 73 Childs v. Monins, 2 B. & B. 460; Christian v. Morris, 50 Ala. 585; Higgins v. Driggs, 21 Fla. 103; McFarlin v. Stinson, 56 Ga. 396; Lynch v. Kirby, 65 Ga. 279; Deas v. McRea, 65 Ga. 531; Hopson v. Johnson, 110 Ga. 283, 34 S. E. 848; Glisson v. Weil, 117 Ga. 842, 45 S. E. 221; Dunne v. Deery, 40 Ia. 251; Rittenhouse v. Ammerman, 64 Mo. 197, 27 Am. Rep. 215; Orne v. Ritchie, 12 Phila. 231; East Tennessee Iron Manufacturing Co. v. Gaskell, 2 |