Wilkins expressly made, by his will, the expenses of administering a charge on his estate. The plaintiff’s bill was one of the expenses of administering. As it was not paid when presented, the plaintiff might properly maintain this action to enforce the, charge. There was no executor named in the will, but Melville Wilkins was the principal legatee and devisee. He was therefore authorized to take proceedings for the probate of the will. Code, § 2614. He did so, and in doing this employed the plaintiff’s-firm. He would himself have been entitled to letters of administration with the will annexed had he chosen to take them. The recovery of a judgment by plaintiff against Melville Wilkins does not take away the effect of the will making these expenses a charge. They are in any case justly to be paid out of the estate, even if first paid by the administratrix, and then allowed to her in her accounting; and when the will has made them an express charge, that justifies a judgment that they be paid from the estate. It is of little consequence whether an action at law lies against the administratrix, in view of the language of the will. Without questioning the general rule that contracts made by an executor are to be enforced against him personally, even when he may be allowed on his accounting for money paid thereon, we yet think that for the reasons above given, and under the circumstances of this case, and the language of the will, the plaintiff was entitled to enforce the charge against the estate. J udgment reversed, new trial granted, costs to abide the event.
Landon and Ingalls, JJ., concur.