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for the land to be sold, and secured such purchaser upon terms fixed by defendant, and such terms according to his agreement with the executor entitled him to compensation for effecting the sale, then he ought to recover commission or compensation in some amount for the services he thus beneficially rendered under contract with the defendant.

It was in the power of testator to authorize appellee, his executor, to sell his real estate; it was in his power to leave the time of sale, the manner of sale, and the terms of sale to his executor. Under this power the executor could have an abstract prepared to effectuate the sale, could have contracts or deeds prepared for the same purpose, and likewise, if he deemed it necessary, could employ an agent and contract to pay him commissions for aiding him in such sale. If empowered by the will to make these contracts, and he made them, he is liable as executor for their violation.

2 Mills' Ann. Státs., sec. 4805, p. 2463, prescribing the compensation of executors would not control the power given to the executor by the will in this case to employ an agent to aid in effecting the sale, and to agree with him on a compensation. The principle declared by the authorities is if the will authorizes the executor to make a contract, and he makes a contract within the power conferred by the will and defaults in its performance, he can be sued as executor on the contract.

In Wade v. Pope et al., 44 Ala. 690, 695-6, Mrs. Pope was appointed by her husband at his death executrix of his will; the will gave her as such executrix power to carry on the farm and manage it as her husband did in his lifetime. Mrs. Pope qualified as such executrix and managed the farm under the will. As such executrix in carrying on the farm she employed Wade as overseer, and had him to purchase

for the use of the plantation certain mules which were used and worked thereon. Wade procured judgment against Mrs. Pope in her individual name, and then sought by an equitable proceeding to subject the estate for the amount of the judgment. The court dismissed the bill and said:


"The executrix is a trustee, and if the will gives her authority to contract debts for expenses incident to the management of the estate she represents, then she is liable at law for such debts, as such executrix. If the executrix had authority under the will to bind the estate, then the estate was bound at law, and there was no need for a resort to equity; if she had not such authority to bind the estate, then she alone was liable."

In Brown v. Evans, 15 Kan. 88, an administrator was authorized by the court to sell lands belonging to the estate. The law authorized him to pay taxes on the lands, he agreed in effecting a sale that taxes on the land had been paid. The taxes had not been paid, a deed was made for the land, a mortgage given by the purchaser to secure a note for the purchase money. When foreclosure proceedings were instituted on the note and mortgage the court permitted the defendant to recover as an offset the amount he had paid to discharge the tax lien. The court in ruling said:

"Neither do we think that the estate can be held liable for the promises of the administrator, unless the administrator has the right in law to make such promises, or to perform the thing which he promises. But we know of no good reason why an estate should not be held liable for promises made by the administrator where in law he has the right to make such promises,

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In Murrell v. Wright, 78 Tex Rep. 519, the will authorized the executor to sell at private or public sale the testator's personal property. A contract was

made between the executor and plaintiff therein in reference to an unlocated land certificate, and a suit to enforce rights arising out of this contract was maintained.

In Bostwick v. Beach et al., 103 N. Y. 414, 421, a will authorized the executrix and executors to sell and convey testator's real estate; they entered into a contract to make such conveyance, but failed to carry it out. An action for specific performance was brought against the executrix and executors and maintained, the court saying:

"We entertain no doubt that where the executors of the will of a deceased person, empowered by the terms of the will to sell his real estate, enter into an executory contract for such sale, performance of such contract may be enforced, in equity at the suit of the purchaser."-See also Fleming v. Kelly, ante 23, 69 Pac. 272.

We think the executor had the power to make the contract alleged in the complaint, having, according to the allegations of the complaint, broken such contract we think an action will lie against him therefor. We have considered the sufficiency of the complaint only as to the two objections urged against it, and above discussed. We express no opinion as to its sufficiency on other points should they exist, and arise on a new trial, if one be had.

The judgment below should be reversed.

[No. 2272.] ·



Appellate Practice-Instructions-Abstract of Record.

Assignments of error based on the refusal of the court to

give instructions requested will not be considered unless the abstract of record presents all the instructions given.

Appeal from the District Court of Pueblo County.

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Mr. GEORGE W. COLLINS, for appellant.

Mr. M. J. GALLIGAN, for appellees.


Appellees had verdict and judgment for damages sustained through the death of their infant son, alleged to have been caused by the negligence of appellant.

The only error assigned is the refusal of the court to give tendered instruction No. 4.

Appellees contend that this assignment cannot be considered because all the instructions given by the court are not before us.

Nineteen instructions were given, only two are in the abstract.

In such condition of the record as presented by the abstract,-upon which we have the right to rely -we cannot say that the refused instruction was not covered by those given by the court, therefore we cannot rule that the court erred in its refusal to give the instruction tendered.-Court of Appeals Rules 1901, No. 14; Woods v. Chellew, 15 Colo. App. 368, 370, 62 Pac. 230; Dawson v. Coston, 18 Colo. 493, 495, 33 Pac. 189; McQuown v. Cavanaugh, 14 Colo. 188, 190, 23 Pac. 341.

Notwithstanding above fatal objection to considering the error assigned, we have resorted to the transcript and find that by given instructions numbers twelve and thirteen the jury was fully and fairly charged upon the question of notice to appellant of the unsafe condition of the stone which caused the death, this being the point sought to be covered by the refused instruction.

Judgment affirmed.


[No. 2233.]


1. Replevin-Ownership-Evidence.

Evidence examined and held sufficient to establish ownership and right of possession in plaintiff in a replevin suit for property levied on and held by defendants under executions against other parties.

2. Pleading-Estoppel-Replevin.

In an action of replevin by the owner to recover property levied on and held under executions against other parties a defense that plaintiff is estopped to assert ownership of the property as against the execution creditors because the execution defendants were permitted to hold themselves out as owners so as to justify said creditors in believing that they were the owners, cannot be relied on unless it is pleaded.

Appeal from the District Court of Teller County.


Messrs. FINN & ENGLEY, for appellees.


Replevin to recover certain mining machinery and tools. Verdict and judgment for defendants. Plaintiff appeals. The complaint alleges ownership and right of possession in plaintiff. This the answer denies, and alleges that defendant Craig as constable seized the property involved under writs of execution as that of the execution debtors, which debtors -it is further alleged-had transferred it to plaintiff without consideration with intent to defraud creditors. Affirmative matter in the answer is denied by the replication. Appellee Gentry was made a party defendant through being custodian of the property while held under the execution.

The issues of fact pertinent to this review are: Was plaintiff the owner and entitled to possession of the property in question? Had a sale thereof

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