The proposition is nominally correct, as stated by the counsel for the defendant, that the next of kin cannot maintain an action for a distributive share of the personal property of the deceased: an administrator must be appointed, and the suit brought in his name. (Woodin v. Bagley, 13 Wend. 453. Beecher v. Crouse, 19 Id. 306.) But that rule of law has no application to this case, and constitutes no defense. This suit is not brought as next of kin, to recover a debt due to the testator : but it is brought to enforce an agreement entered into between the parties themselves. To induce Mary, one of the plaintiffs, to execute, with others, an instrument in writing and under seal, excusing the administrators of Moses Jeroms, deceased, from proceeding to collect a debt the defendant owed to the estate, the defendant promised to pay to her her share of such indebtedness. The plaintiff agreed to the proposition and executed the instrument, and the administrators accordingly neglected to prosecute the defendant. This arrangement was made for the benefit and at the request of the defendant, whose principal object was to gain time.
There can be no doubt this was a valid and binding contract. There was a good consideration for the promise of the defendant, viz. the signing and sealing of the instrument, by which the plaintiff lost her chance of receiving from the administrators a *28distributive share of the debt, and by which the defendant had the benefit of not making payment to the administrators. Though the promise was by parol, it in no respect contradicted or explained the writing. It was an agreement independent of the writing, though founded upon it. The defendant said, “ If you will sign a certain paper between yourself and several other persons, in which I have an interest, though I am not a party to it, I will give you a certain sum of money,” and the .plaintiff agreed to the proposal and signed the writing. This was the substance of the agreement; and such a promise by parol being valid, the judge decided correctly in allowing it to be established by parol evidence, on production and proof of the paper in question.
It is no objection to the plaintiffs’ right to recover, that the instrument in writing was not executed by all of the heirs at law of the deceased. It was executed by the plaintiffs, and that was the only condition and consideration for the undertaking of the defendant.
Neither the report of the referees on the claim made against the estate by the defendant, nor the decree of the surrogate on the final settlement of the personal estate, have any influence upon the question of damages. It seems the whole of the defendant’s account against the estate was allowed him by the referees, in consequence of the agreement entered into that the administrators should not proceed to collect the amount due from the defendant to the estate. And,the decree of the surrogate would not show the true state of the accounts, for the reason that the claim of the estate against the defendant grew out of the fact that the intestate had signed several promissory notes with the defendant, as his surety, which, after his death, were presented as claims against his estate and paid from time to time by a sale of the real property of the intestate, under the order of the surrogate.' The greater portion of the money thus raised was received by the surrogate and actually paid to the creditors after such final decree was made. And the estate, though liable to pay as surety, had no cause of action against the principal until actual payment. There was no error, there*29fore, jn the mode of ascertaining the amount of damages to be recovered.
[Albany General Term, May 2, 1853.The release executed by Martha Jeroms was inoperative, for two reasons. First, she had no power over the personal estate of the deceased; having neglected to return an inventory. (2 R. S. 150.) The inventory was returned by Thomas Coffin, the other administrator, and Martha Jeroms took no further part in the administration, and was not a party to the final decree before the surrogate. Secondly, the agreement on which this action is founded being independent of the estate and between other parties, the administrators of the estate had no power or control over it, and could not discharge the defendant from the plaintiff’s demand.
' I have thus examined all the points made by the defendant’s counsel on the argument, though I do not think all of them could properly have been raised under the general exceptions made to the refusal to charge.
I think there was no error committed on the trial, and that the judgment at the circuit should be affirmed.
Watson, Parker and Wright, Justices.]