The relevant provisions of the contract of April 22, 1938, which concern us on this rehearing are set forth in extenso in the opinion in the first appearance of the case in this Court, reported Howard Cole Co., Inc., et al., v. Williams, et al., 27 So. (2) 352, and I will not re-write them here. The Court held that the bill was bad on the grounds: (1) F. H. Williams became a lessee pendente lite and, under that doctrine, was charged with full knowledge of the rights and interests of the litigants (including Baya) in this suit in the lower court; (2) under the terms of the contract referring to this suit in the lower court by style "Howard Cole Co., et al., v. Miami Trust Co., a corporation, et al.," he became a lessee, *Page 160 with knowledge of the rights and interests of the litigants (including Baya); (3) because of this knowledge, he was bound by the judgment in the case; (4) under the terms of the contract William's unqualified obligation to accept and pay for the land expired on April 22, 1943, and, after that date, to keep the option provisions of the contract in force, he had to give written notice annually on or before April 22 to extend it from year to year; time is the essence of the option feature of the contract and its conditions must be performed within the time limit in order for it to ripen into a contract for purchase and sale; he failed to give notice extending the contract beyond April 22, 1945, the option expired, and vendor parties lost the correlative right to require him in a suit for specific performance to consummate the purchase of the land, for there was no mutuality of remedy; (5) enforcement of the contract could not be required until termination of litigation and, whether it be considered that litigants' settlement of their differences on April 30, 1945, or dismissal of appeal May 19 following was such "termination," both dates came too late; (6) finally, the contract, by its own terms, expired April 22, 1945, for lack of written notice, and no rights, interests of obligation remain in either party.
I am in accord with the decision which I think correctly applied long settled principles of law to the factual situation reflected in the bill.
To obviate the difficulties of this decision, the executors offered to allege extension of the contract by written notice, and petitioned the court for leave to amend their bill to charge that Z.K. (Zibe) Williams, at the direction of his coexecutor, Sallie, on the 16th day of January, 1945, wrote Dunwody in the following words and figures:
"January 16, 1945
"Mr. W. E. Dunwody, Agent, Howard Cole Company, Inc., Arcadia, Florida
"Dear Sir:
"Since the death of my father Fitz Williams, in December 1944, I have been going over a number of his papers and *Page 161 I do not find a copy of the notice of his election to extend option period on certain lands in litigation in Highlands County, and I wonder if in his ill health he had neglected to do so.
"If such is the case and no notice was sent you, this will be your authority to extend the option as per agreement identified in file No. 7873 agreement date April 22, 1938.
"Also request that you be good enough to inform me as to the present status of the suit on this property.
"Thanking you and with best regards, I remain
"Very truly,
(s) Z. K. Williams Z. K. Williams, Executor Estate of Fitz Williams, Dec."
To which Dunwody on the next day replied:
"Mr. Z. K. Williams, Okeechobee, Florida
"Dear Mr. Williams:
"I have not been acting as Agent for Howard Cole Company, Inc., for several months. However, I do know that the Circuit Court held that whatever interest Mr. Cole had — or Howard Cole Company, Inc. had was subject to the judgment held by Mr. Baya. This judgment was far in excess of the value of the land and it looks as tho whatever equity Mr. Cole had has been wiped out.
"All the papers I had in connection with the contract with your father were turned over to Treadwell Treadwell. However I am of the opinion that Mr. Haskins took care of your father's interests in giving notice of his election to extend the option period.
"With sincere regards and assuring you of my desire to be of service to you.
Very truly,
W. E. Dunwody."
Also, to avoid the effect of the knowledge charged to Williams by the decision, they offered to amend and allege that he had no actual knowledge that defendant, Baya, had intervened *Page 162 or was a party to the suit or that any claims were made in the cause by him or in his behalf. Upon objection of the defendants, the court denied leave to file the proposed amendments, apparently upon the theory that they did not cure the deficiencies of the bill, and dismissed it with prejudice. The appeal is from that decree.
They contend that the amendments should have been allowed. They say that Zibe's letter of January 16, written at the direction of Sallie, effectively extended the option to April 22, 1946, because "coexcutors are deemed one person, and acts of one in respect to administration are deemed acts of all," relying upon Sullivan v. McMillan, 26 Fla. 543, 8 So. 450; Eastman Co. v. Anyon, 116 Fla. 137, 156 So. 302; Drew v. Gais, 115 A.L.R. 386, 24 C.J. 1183. But this statement of the rule omits the limitation that such act of one must be within the scope of his duty as executor, or, as otherwise expressed, the act must have been one in the discharge of the usual functions of an executor.
This qualification of the rule is declared in the language of the opinions cited, or, where not so declared, the controversial act involved in the case is clearly within the scope of the duties of an executor, which are generally to collect the effects of the decedent, to pay claims against his estate, and to distribute the residue to those entitled thereto. Glidden v. Getulius, 96 Fla. 834, 119 So. 140. The Probate Law did not apply to the Eastman and Drew cases, although they were decided some years after its adoption. The rule did not enlarge the general authority of executors.
The letter, if effectual as an extension, renewed the option contract. Without it all contractual relations between the parties expired April 25, 1945, at least five days before specific performance could be required of defendants. If validly renewed, the option contract, including the potential obligation of testator to purchase and pay for the land was extended one year beyond the expiration of the last contract made by him. The option contract they say has ripened into a contract of purchase and sale, and seek its enforcement. In asking enforcement they would have the Court approve a new obligation, wholly executory, against the estate, not created by *Page 163 their testator in his lifetime, but by themselves, and, if by specific performance we grant the request, we authorize them to pay from the funds of the estate the purchase price required by the contract.
As long ago as May v. May, 7 Fla. 207, 68 Am. Dec. 431, it was held that an executor had no authority to make a new contract to charge the estate of the decedent, and this rule was reiterated by this Court in Evans v. Tucker, 101 Fla. 688,135 So. 305. I have found no statute or case in this Court announcing a contrary rule, in a case of this kind under consideration. To like effect, in 11 R.C.L., Section 176, the general rule regarding contracts of executors and administrators is stated thus:
"An executor or administrator has no power to bind the estate of which he is the representative by his individual contracts nor can he impose any liability on the assets of the estate through such contracts. This is true notwithstanding the fact that such contracts are for the benefit of the estate; and it is immaterial how clearly the intent to bind the estate may be expressed. The contracts of an executor or administrator cannot be regarded as in any sense the contracts of the decedent. The principle is that an executor may disburse and use the funds of the estate for purposes authorized by law, but may not bind the estate by an executory contract, and thus create a liability not founded upon a contract or obligation of the testator . . . ."
Section 732.50 of the Florida Probate Law, F.S. (Chapter No. 16103, Laws of 1933, and subsequent amendatory acts) provides:
"If several executors are named in a will, one or more qualifying shall be entitled to execute all the powers and trust confided to all in the will, unless specifically prohibited by the will; if more than one qualify, all must join in discharging the functions of executor, unless the county judge shall give special authority to one or more of such executors to discharge such functions. Each executor shall be responsible for his own acts only, unless by his own act or gross negligence he has enabled or permitted his coexecutor to *Page 164 waste the estate. The foregoing shall likewise apply to joint administrators."
Assuming that the executors, under Section 732.50, had authority to extend in writing the option contract, the statute required the execution of the extension by both executors in the absence of authorization by the county judge for one to act and sign for both. For equally cogent reasons, whether under the old law or under the Probate Law, the executors had no authority to renew their testator's option contract for the purchase of real estate, neither did they have the authority to make such contract.
The law of this State prior to the Florida Probate Law never, so far as I can find, permitted executors to obligate estates for the purchase of real estate. The Probate Law deals with the authority of personal representatives with respect to the interests of decedents in real estate in many different phases, all negativing the motion that an executor is authorized to obligate the estate for the purchase of realty or create any new obligation to that of the deceased except with approval of the County Judge, under very restrictive circumstances, referred to in Section 733.39 F.S.A. There is no mutuality of obligation or remedy.
Parties in their brief do not agree that the contents of Zibe's letter meet the requirement of an extension agreement. I have assumed, without deciding, that it was sufficient. The offer of the defense that Williams had no actual knowledge was unavailing, in view of the knowledge imputed to him by the contract and the doctrine of pendente lite.
I think the Chancellor's decree dismissing the bill with prejudice should be affirmed.
A majority of the Court concurring it is ordered that the decree dismissing the bill be affirmed.
THOMAS, C. J., TERRELL and BARNS, JJ., concur.
*Page 165BUFORD, CHAPMAN and ADAMS, JJ., dissent.