By the pleadings and on the tidal, all the parties admitted that' the defendant, Mrs. Beach, had a right of dower in the premises, which she did not by the contract of sale release or agree to convey. *346This concession was recognized by the trial court and the judgment is based upon the facts thus admitted.
On this appeal we are confined to this" view of the case. The contract sought to be enforced was executed by the executrix and executor in their representative capacity and not personally. This is manifest on the face of the contract, and if there is room for doubt as to the capacity in which they acted, it was cleared away and made certain by the parol evidence bearing on the point. (Chouteau v. Suydam, 21 N. Y., 179; Briggs v. Partridge, 64 N. Y., 357.)
It is unnecessary to give this proposition more attention as it is the position contended for by the respondent and adopted by the trial court. It is important to observe that the contract does not speak as to the terms or form of the conveyance to be executed by the vendors, and it is also silent as to the nature and extent of the estate in the property intended to be sold and conveyed by them. Neither is there any clause exempting the executors from personal liability to the vendee, in case of a non-performance on their part of any of the express or implied terms of the agreement. The agreement entitled the vendee to a perfect and unincumbered title. In executory contracts like this,-there is an implied warranty on the part of the vendors that they have and will convey a good title, free and clear of all incumbrances. (Burwell v. Jackson, 5 Seld., 535; Rawle on Covenants of Title, 430; Sugden on Yendors, vol. 1, chap. 7, § 1.)
The decree is based upon the correctness of this proposition. The value of the widow’s right of dower and the amount of the incumbrance by mortgage are directed to be abated from the unpaid portion of the purchase-money, as the means of indemnifying the vendee for the non-performance of the implied terms of the contract, to convey a good and unincumbered title.
It is claimed by the appellant that the executors, as donees of the power to sell, were without authority to make an executory contract of sale containing covenants to pay off the incumbrances, and to convey a perfect title to the vendee and make the same binding on the estate which they represent. Such is my opinion. They were authorized to sell and convey such estate as the testator had in the premises 'at his death and nothing more. The widow’s dower right *347they could not sell, nor were they authorized by the terms of their appointment to use any of the funds coming to their hands, in their representative capacity, to extinguish that estate or to pay off the incumbrances on the premises. Their power was limited to .sell and convey the testator’s interest in the lands. They promised and agreed to do more; and such promise being in excess of the authority vested in them, it is void so far as the estate which they represent is concerned. As between themselves and the vendee, they were personally bound by the terms of the agreement to the extent they are in excess of their authority..
By the terms of the decree, the agreement and all of the implied covenants were held to be.good as against the estate, and damages have been awarded accordingly. A trustee may bind a trust estate by an executory agreement so long as he keeps within the limits of his power, but the moment he steps outside of the same his promises are void and cannot be enforced against the estate. If this were not so it would be futile to attempt to set bounds to his power, and his own discretion would become the measure of his authority.
In New v. Nicoll (73 N. Y., 127) it is held that, as a general, rule, a trustee cannot charge the trust estate by his executory contract, unless authorized to do so by the terms of the instrument creating the trust; that upon such contracts the remedy is against the trastee personally, and they cannot be enforced against the trust estate. In that case Nicoll, the trustee, was empowered to receive the rents, issues and profits of certain real estate, and, after paying taxes, to pay over the same to the use of another during life. The trustee, as such, employed the plaintiff to make certain repairs on the premises; and in an action for such,work and labor a recovery was had against the defendant as trustee, with directions to pay the judgment out of the rents and profits. The judgment was reversed in the Supreme Court, and such reversal was sustained in the Court of Appeals.
The same principle has been frequently applied to executors and administrators, and is now deemed res adyudicata. (Austin v. Munro, 47 N. Y., 360, Ferrin v. Myrick, 41 id., 315; Stanton v. King, 8 Hun, 4.)
As a general rule, the purchaser may maintain an action against the vendor where he is incapable of making a complete title to all *348the property sold, and compel a performance pro tanto, and have an abatement made out of the purchase-money, or compensation awarded for any deficiency in title as to quantity or quality of the property sold. (1 Story’s Equity, § Y89; 1 Sugden on Yendors, m. p. 491; People v. Stephens, 71 N. Y., 555; Woodbury v. Luddy, 14 Allen, 1; Davis v. Parker, Id., 94.) In whatever form compensation for defect of title may be made or secured to the' purchaser, the same is in the nature of damages for a breach of some one of the terms, either express or implied, of the contract of sale. In the case now here the vendee has been awarded compensation for a defect in the title. In a legal sense the sum so allowed is no less damages for a breach of a term of the contract, because it is to be abated from the unpaid balance of the purchase-money. If the vendee had in fact paid over all the purchase-money before the action was commenced, he would, nevertheless, by the rule of law adopted by the trial court, have been entitled to damages to be paid by the vendors. It may be that the executors will realize as much for the benefit of the estate by completing the sale on the terms and in the manner provided by the decree, as they would have if the premises had been sold subject to the widow’s dower, but that does not cure the error of the trial court in holding that the contract was binding on the estate.
There are instances where lands are so situated, and the character and value of the same are such, that more can be realized on a sale of the same subject to a dower right than by a sale of the same free therefrom and deducting the value thereof from the purchase money, and the same may be said in regard of incumbrances by way of mortgage, if they have a long time to run at a satisfactory rate of interest.
Judgment reversed, new trial ordered, with costs to abide the event.
Smith, P. J., concurred; Hardin not voting.Judgment and order reversed, and new trial ordered, costs to abide event.