The complaint, I think, contains averments sufficient to show that the predecessor of the defendant undertook, in his character of administrator, to contract with the plaintiff’for suitable head-stones to be placed at the grave of the deceased, not beyond what would have been allowed to him, under the statutes, in his final account before the surrogate,- if he had paid for'them before he had been removed from office. The price was $140, and he had paid but $40 when he was removed and the *89defendant appointed to take his place. There is no question made but that the defendant has assets properly applicable to the payment of the balance, but it is alleged that he neglects and refuses to receive the stones, or to pay for them, although they were made according to the agreement with the first administrator, and were ready for delivery when called for.
The judge, at special term, while admitting that the contract was one which it was proper for the administrator to make, and that the expense of the head-stones was not beyond the rank or station in life of the deceased, came to the conclusion that no action would lie against the defendant, as administrator, to recover the balance of the purchase price.
Some -of the authorities cited and commented upon, show that although funeral expenses, including a suitable monument for the deceased, are chargeable upon the estate of the deceased, the administrator who orders them is personally liable and not in his representative capacity. So wlaen they are ordered by others and afterwards- approved by the administrator or executor. And in case of necessary funeral expenses, when there is no one personally liable, the undertaker may sue the administrator and recover them upon an implied assumpsit, provided he has assets. It would seem, however, from some of the cases cited, that when there is an express agreement by the administrator to pay, he makes himself liable, personally, and cannot be made liable as administrator. If this is the law in this state, then the only remedy of the plaintiff is to sue the first administrator. If he is insolvent, I know of no way under this state of the law by which the amount can be collected. If he is responsible and pays the judgment, then it is admitted in Green v. Salmon, (8 Ad. & E. 348;) Myer v. Cole, (12 John. 349;) Demott v. Field, (7 Cowen, 58 ;) as well as by other authorities cited, that the estate would be liable over to him after such payment.
*90This is a most extraordinary position, and yet it seems to be pretty well established by the authorities cited, although not without protest and objection by distinguished judges in other cases.
If the estate is ultimately liable, there is no reason why this claim should not be-presented to the administrator in the first instance, and why, if he has funds, lie should not be required to pay it out of the assets of- the deceased. Under the Revised Statutes, the administrator cannot plead want of assets and thus escape the responsibility of a judgment. (Parker’s ex'rs v. Gainer’s adm’rs, 17 Wend. 559.) The only object of the suit is to establish the claim. After judgment, the plaintiff' could not have an execution without the order of the surrogate, and then for only so much as was properly applicable to the payment of the plaintiff’s claim. (Id. Allen v. Bishop’s ex’rs, 25 Wend. 415, and also 18 id. 666; 12 id. 542.)
It was said by Savage, Ch. J. in Dox v. Backenstos, (12 Wend. 543,) that the jurisdiction of the surrogate has been extended and enlarged in respect to executors and administrators by the provisions of the Revised Statutes; and that they “ have a new character and stand in different relations from what they formerly did to the creditors of the deceased persons with whose estates they are intrusted. They are now the mere representatives of the testator or intestate; they are constituted trustees, and the property in their hands is a fund to be disposed of for the benefit of creditors, and not liable, as it once was, to be dissipated by bills of costs, created by the anxiety of creditors to obtain the first judgment and thus secure the payment of their debts to the prejudice, perhaps, of others. How a more equitable rule prevails; no preference is allowed among debts of the same class.” In Parker’s ex’rs v. Gainer's adm’rs, (17 Wend. 561,) Cowen, J. says: “ The old system of preferential administration having been almost entirely subverted, all the pleadings and other parts of the ancient *91superstructure in so far as it was raised for the protection of that system, have gone with it.” And in Butler v. Hemptead’s adm’rs, (18 Wend. 666,) the court came to the conclusion that there was no necessity for. an executor or administrator to defend a suit commenced against him, except for the purpose of fixing the amount in controversy.
These cases show two things : 1.' That the administrator could not defend this action upon the ground of the want of assets, but only to defeat it as a claim against the estate, or reduce its amount. 2. That he is now regarded as a trustee for creditors, as well as the representative of his intestate.
. It is therefore clear that as a trustee, having'in his hands the assets of the estate to be disposed of by him, among other things, to pay the funeral expenses of the deceased, he ought in justice and equity to pay this demand, unless he can show that the estate is not ultimately liable. The question of assets, &e. is a matter entirely for the surrogate, and cannot be brought into these pleadings.
How if there is any technical rule of law which allows this defendant to defend the action merely because the first administrator may have made himself personally liable on the contract, it is time the foundation of it should be examined, and if it cannot stand consistently with our present system of pleadings and the new duties of executor and administrator as defined by the Revised Statutes and the decision of the courts in other cases, it may as well be overruled and swept out of the way.
The reason of the rule, as stated in the books, is that an executor or administrator cannot create a debt against the deceased. This is exceedingly technical, but I apprehend that the authorities cited for the defendant, all rest upon it for their support, so far as they deny that an executor or administrator, as such, can be sued for the funeral expenses of the deceased.
The law is, however, too well established to admit of *92question, that an executor ,or administrator, by ordering such expenses makes himself personally liable for them. This is one' proposition, but it does not necessarily follow that the éstate he represents may not also be liable. Indeed, if there are assets, it is admitted that the estate is ultimately liable.
Authorities may be cited to show that the creditor may have his election either to charge the executor or administrator personally, or the estate. It is easy to see that under the former system of pleadings, when the declaration showed that the executor or administrator had promised to pay these expenses, the plaintiff was entitled to a personal judgment, whether the estate was ultimately liable or not. This being so, it followed that such a count could not be joined with a count for a debt created by the deceased, as the judgment in the latter case was necessarily de bonis testatoris.
The execution followed the form of the judgment, and as there could not be two judgments in the same action, authorizing different executions, it followed as a necessary conclusion that the two counts could not be joined in the same action. No such question can arise in this case, as the only object of the action is to charge the estate. If it is therefore admitted that it is a ease where the first administrator could be prosecuted for the same- demand, he is not a party to the action, and no judgment is to be pronounced against him in either form. It is respectfully submitted that in most if not all the cases cited to support the defendant’s objection, the only question really involved was, whether the executor or administrator was personally liable upon the contract stated ;■ not whether upon a given state of facts a suit could not be sustained against him as administrator to charge the estate. As he was personally' liable upon the facts stated, it followed that the plaintiff was entitled to a judgment against him de bonis propriis although the estate might be ultimately liable. This pro*93duced the misjoinder of counts complained of, and is the foundation for the decisions cited to sustain the proposition that an administrator cannot create a debt against the estate, which he represents. It is, however, questionable whether an objection of this character is any longer available, under our system of pleadings, in view of the equitable jurisdiction of the court to determine in one action the ultimate liability of the parties before it, even as among the defend- • ants themselves. (fJode of Procedure, §§ 122 arad 274.) By another provision of the Code, every action may be prosecuted in the name of the real party in interest, (§ 111 ;) but what is of more importance is, that all persons having an interest in the subject of the action and in obtaining the relief demanded, may be joined as plaintiffs, and any person may be made defendant who; has or claims an interest in the controversy adverse to the plaintiff, or who is a necessary party to a complete determination or settlement of the question involved therein. (Gode, §§ 117 and 118.) In view of these several provisions, the judgment may be moulded in such form as to protect the rights of all parties.
When it is admitted that the estate is ultimately liable for the payment of the funeral expenses .incurred by an administrator, there is no longer any reason why it should not be a party although the administrator may be personally liable for the -same demand* The estate is a proper party, as it is ultimately liable for the payment of the demand. ' (Qode, § 168.)
Let it be admitted that Jacob Hartman, the first administrator, may be sued by this plaintiff. Clearly this defendant may be joined as a party, for the estate he represents has an interest adverse to the plaintiff, and is a necessary party to a complete determination or settlement of the question involved therein. The court is authorized in giving judgment to determine the ultimate rights of the defendants as between themselves. (Code, § 274.)
If Jacob Hartman had been made a party defendant in *94this action, what would be'the judgment upon the facts stated in the plaintiff’s complaint? If we follow the law as laid down in the cases cited by the defendant’s counsel as to the form of reaching the assets in the hands of the defendant, for the payment of the plaintiff’s debt, the judgment would first detérmine that'Jacob Hartman, who ordered the gravestones, was personalty liable and an execution might issue against him de bonis propriis. Secondly, on payment of the judgment by him, an. execution might issue against his successor, de bonis testatoris to reimburse himself for what he had thus been compelled to pay. This would be a strict determination of the rights of the defendants as between themselves, according to the theory of the defendants.
But it will be seen tffit there is a good deal of unnecessary circumlocution here, and that the first administrator is not a necessary party, except when it is desirable to charge him personally with the same debt: It follows, I think, that this action is well brought against the defendant as administrator, and that a demurrer will not lie because another person may be liable for the same demand, as upon the fants stated, the estate, being ultimately liable, had no interest in that question. If the original administrator had been allowed for this claim in his accounts before the surrogate it may be necessary that he should be brought in as a party before a final determination of the controversy can be made. It will be time to answer the questions growing out of such a state of facts when they arise.
Thus far I have discussed the question upon the theory that Jacob Hartman had made himself personally liable by his contract with the plaintiff. Without now undertaking to dispute thé general proposition, that an administrator, with or without assets, assumes a personal liability for funeral expenses, in the absence of any special agreement, I think the láw is now settled in this state. *95authorizing him. to contract with the undertaker on behalf of the estate and to charge the assets in his hands with the payment of the expenses.
So far as the authorities cited deny the right of the administrator to bind the estate by such an agreement, they must bo deemed to have been overruled in Chouteau v. Suydam, (21 N. Y. Rep. 179.) It was held in that case that an administrator, like a trustee,, might enter into a written contract charging the estate with moneys received by the administrator and which he neglected to pay over to the persons entitled to them under the terms of the contract. The learned judge, who delivered the unauimous opinion in Chouteau v. Suydam, says : “ When it is sought to charge the estate with a contract made by the executor or administrator, two questions arise, viz. 1st.- Was the contract intended and understood to be made by the executor or administrator, &c. personally or in his representative character only ? and 2d. If intended as such, was the contract such an one as would properly have that effect ?” He then proceeds tó show that the contract in question was signed by Charles Suydam, executor, and prima facie was intended to charge the estate, as it related to a matter in which the executor had no personal interest. He then proceeds to show the contract was beneficial to the estate and one which the executor, in the proper discharge of his trust, was authorized to make. It will be observed that in dealing with the question, the judge places a good deal of weight upon the authority of the executor as trustee of the estate, as distinguished from his character as the mere personal representative of the testator. The executor, he says, would be wanting in fidelity to his trust if he had failed to enter into the arrangement. (Page 183.)
And in another case, in the same court, (Noyes v. Blakeman, 2 Seld. 567,) a similar, question arose as to the incidental authority of a trustee to make a contract binding *96upon the trust estate, and it was held that he might create a debt and charge it upon the future income of the estate, without personal responsibility, when it was necessary to protect the estate. Two of the judges (Gardiner and Jewett) dissented, on the ground that the trustee could not avoid personal responsibility and create a lien upon the estate for the expenses attendingpts preservation—the very ground upon which the demurrer was sustained in the ease at bar, if I have not entirely misapprehended the question.
And, in both cases, it was further determined by the same court, that after the removal of the administrator or trustee, and a new one appointed, the trust estate in the hands of the new trustee remains subject to the charge.
There is still another authority which ought not to be overlooked in this connection, in the matter of Tompkins’ estate, (41 Barb. 237.) There, it seems a judgment had been obtained in the Supreme Court after a trial upon the merits, against the administrator, for proper counsel fees, incurred by him in the course of his administration.
It does not appear that the administrator resisted the claim in' the Supreme Court, upon the ground taken by the defendant here, although that precise question was undoubtedly involved in the issue. Upon application to the surrogate for execution upon this judgment, the question was raised, that it was not a debt “ due by deceased.” He having ordered execution, an appeal was taken to the Supreme Court at general term, and the order of the surrogate was affirmed; the judge, who delivered the opinion of the court, holding that the demand was one properly chargeable upon the estate. The principle to.be deduced from these authorities is that an executor or administrator, as such, may bind the estate by a contract entered into by him within the scope of his authority as trustee of the estate, or he may make himself personally liable upon the same contract.
*97[Onondaga General Term, January 5, 1869.Regarding the administrator as a trustee of the estate, as well as the personal representative of the intestate, he had an undoubted right to charge the éstate in his hands, by any agreement which the law authorized him to make in the proper and necessary discharge of his trust.
The only remaining question is, whether the complaint charges the agreement in question to have been made on behalf of the estate, and whether it is such an agreement as he was authorized to make in the proper discharge of his duties as administrator of the estate. Both of these questions have already been answered in the affirmative. The complaint expressly charges “ that the said Jacob, as such administrator, made and entered into a contract with the plaintiff’* to. furnish the gravestones. That they were suitable and not beyond the means of the estate is also admitted by the demurrer. In other words, the expenses were no more than would be allowed to him by the surrogate on his final accounting, if he had paid for them before he was removed from his trust.
Qn the whole, I have come to the conclusion that the plaintiff is entitled to judgment, upon the broad ground that an administrator in this state, as a trustee of the estate, may create a charge upon it for expenses attending his administration which he is authorized to incur in the proper discharge of his trust. So much is, I think, established by the decisions in the .Court of Appeals, already referred to, though not without considerable opposition, and the dissent of two of its most eminent jurists.
The order appealed from should be reversed, with costs, and an order entered overruling the demurrer, with leave to the defendant to answer the complaint upon the usual terms.
Ordered accordingly.
Foster, Mullin and Morgan, Justices.]