Carpenter, J.
On one point in this case we are constrained to say that the court below erred. The action is against the administrators of an intestate estate, the complaint consisting of two counts, one for a debt incurred by the intestate during her lifetime, and one for a debt accruing after her decease. She died September 8th, 1881. After her death two instruments, each purporting tok be her last will and testament, were presented to the court of [116]*116.probate. Both were contested and neither-was approved as ■ her last will. In the litigation concerning the proposed wills certain expenses were incurred by the plaintiff at the ■request of one of the defendants, and she, as administratrix, agreed that a reasonable sum should be paid therefor. The iexpenses thus incurred were allowed by the court below to ■the amount of $38 and interest. The sum thus allowed, improperly as we think, amounts to more than the balance found due to the plaintiff; hence it cannot be remitted, but the whole judgment must be reversed.
This court held in Taylor v. Mygatt, 26 Conn., 184, that .an administrator has no power to make the estate a debtor, even for expenses legitimately incurred in the settlement of the estate, but. that such expenses are claims against the administrator personally. See also Chambers v. Robbins, 28 Conn., 544. To some extent this is now changed by statute. Session Laws of 1882, p. 146. That statute is as follows 4—
“ In all cases in which any person shall have a legal claim against any executor, administrator, guardian or trustee, growing out of moneys paid or services rendered for the estate in the hands of such executor, administrator, guardian or trustee, and which should justly be paid out of such estate, an action at law may be brought by such claimant against such executor, &c., and if such claim shall be found to be a just one, and ohe which ought equitably to be paid put of such estate, judgment may be rendered in favor of such claimant to be paid wholly out of the estate.’’
Obviously this statute is not broad enough to, cover this case. The claim must”be against an executor or administrator, and must be a debt contracted by him in his representative capacity, and not a debt contracted by some other party before his appointment; and by the express terms of the statute it must be for moneys paid or services rendered for the estate in the hands of the executor, &c. If the title to the estate or any portion of it was- in dispute, and expenses were incurred by the administrators in defending it, it might be truthfully said that such expenses were in[117]*117curred for the estate, and they might well be recovered of the estate under this statute. But no one would presume to claim that expenses incurred in attacking the estate or its title should be paid from it. It does hot appear whether the expenses allowed were incurred in endeavoring to establish the proposed wills or in resisting them. If the former, as they may have been, then they were incurred in a wrongful attempt to divert the estate from its legal course, and they should not have been allowed. If the latter, then they were incurred voluntarily, by parties interested in defeating the proposed wills, and before administration granted. Although' such action may have been in the interest of the estate, yet the persons so acting had no power to bind the estate, because they were not legally authorized to represent it. The agreement of Alura J. Crandall, one of the defendants, that the expenses should-be paid out of the estate, cannot bind the • estate, because she. had no power to make such an agreement; certainly not if the alleged agreement was made before her appointment.' If made afterwards, even then the estate is not liable, unless it appears that the money paid or services rendered were for the estate, and “ ought equitably to be paid out of the estate; ” and there is no such finding in the case. But the expenses were evidently incurred before administration was granted.
The statute only contemplates expenses incurred by executors or administrators legally appointed and authorized to act as such, and cannot be made to apply to expenses previously incurred by interested parties. This is manifest from the further provision of the statute, that the creditormáy at his election pursue his legal remedy against the executor or administrator personally.. Of course nothing in this opinion is intended to prevent the court of probate from allowing to the administrators in their administration account any just and reasonable expenses incurred in behalf of the estate before administration. Upon the facts as they now appear, we think the plaintiff must seek his remedy in that direction, or against the administratrix personally.
[118]*118The first three items of the plaintiff’s account accrued in the proceedings to appoint conservators. The court found that they were reasonable charges for services rendered and moneys paid out. No objection is made that the services rendered and moneys paid were not for the benefit of the ward, and while she was without a conservator; but the objection is that the charges should have been made against the conservator personally.
The charges being proper, it was doubtless the duty of the conservator to pay them from funds in his hands and charge the money so paid in his account; but that duty devolved on him as conservator and did not make him a debtor in his private capacity. When the right to charge matured there was no conservator. Of course the charge could only be made against Mrs. Main. The relation of debtor and creditor between her and the plaintiff was then fixed, and that relation was not disturbed or changed by the appointment of a conservator. Hence, if a suit was necessary, she was the proper party during her lifetime to make defendant, and after her death her administrators. A conservator cannot be made personalty liable for existing debts. There may be some liability if he neglects or refuses to pay or provide for them, but that liability does not go to the extent of making him personalty a debtor to the creditor. We discover no error in allowing these items.
A portion of the account allowed by the court below accrued while the intestate and her estate were subject to the control and management of a conservator. The defendant insisted that these items, if proper charges at all, could not be charged to the ward, but should have been charged to the conservator. The court ruled otherwise, and that ruling is assigned as a reason of appeal.
An executor or administrator, as we have seen, has no power to bind the estate he represents by contract, except as such power may be implied from the statute of 1882 above referred to. But that statute was not in force when the services were rendered for which those charges were made. Moreover, the statute was not intended to affect [119]*119the personal liability of an executor or administrator; its principal object seems to have been to give the creditor a right to collect his debt from the estate as a cumulative remedy. So that, if the word “ guardian ” in the statute may be interpreted as including conservators, as perhaps it may, still the statute will not affect the question now before us.
It has been repeatedly decided in Massachusetts that a guardian has no power to bind the ward or his estate by his contract. Thacher v. Dinsmore, 5 Mass., 299; Forster v. Fuller, 6 id., 58 ; Wallis v. Bardwell, 126 id., 366.
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Carpenter, J.
On one point in this case we are constrained to say that the court below erred. The action is against the administrators of an intestate estate, the complaint consisting of two counts, one for a debt incurred by the intestate during her lifetime, and one for a debt accruing after her decease. She died September 8th, 1881. After her death two instruments, each purporting tok be her last will and testament, were presented to the court of [116]*116.probate. Both were contested and neither-was approved as ■ her last will. In the litigation concerning the proposed wills certain expenses were incurred by the plaintiff at the ■request of one of the defendants, and she, as administratrix, agreed that a reasonable sum should be paid therefor. The iexpenses thus incurred were allowed by the court below to ■the amount of $38 and interest. The sum thus allowed, improperly as we think, amounts to more than the balance found due to the plaintiff; hence it cannot be remitted, but the whole judgment must be reversed.
This court held in Taylor v. Mygatt, 26 Conn., 184, that .an administrator has no power to make the estate a debtor, even for expenses legitimately incurred in the settlement of the estate, but. that such expenses are claims against the administrator personally. See also Chambers v. Robbins, 28 Conn., 544. To some extent this is now changed by statute. Session Laws of 1882, p. 146. That statute is as follows 4—
“ In all cases in which any person shall have a legal claim against any executor, administrator, guardian or trustee, growing out of moneys paid or services rendered for the estate in the hands of such executor, administrator, guardian or trustee, and which should justly be paid out of such estate, an action at law may be brought by such claimant against such executor, &c., and if such claim shall be found to be a just one, and ohe which ought equitably to be paid put of such estate, judgment may be rendered in favor of such claimant to be paid wholly out of the estate.’’
Obviously this statute is not broad enough to, cover this case. The claim must”be against an executor or administrator, and must be a debt contracted by him in his representative capacity, and not a debt contracted by some other party before his appointment; and by the express terms of the statute it must be for moneys paid or services rendered for the estate in the hands of the executor, &c. If the title to the estate or any portion of it was- in dispute, and expenses were incurred by the administrators in defending it, it might be truthfully said that such expenses were in[117]*117curred for the estate, and they might well be recovered of the estate under this statute. But no one would presume to claim that expenses incurred in attacking the estate or its title should be paid from it. It does hot appear whether the expenses allowed were incurred in endeavoring to establish the proposed wills or in resisting them. If the former, as they may have been, then they were incurred in a wrongful attempt to divert the estate from its legal course, and they should not have been allowed. If the latter, then they were incurred voluntarily, by parties interested in defeating the proposed wills, and before administration granted. Although' such action may have been in the interest of the estate, yet the persons so acting had no power to bind the estate, because they were not legally authorized to represent it. The agreement of Alura J. Crandall, one of the defendants, that the expenses should-be paid out of the estate, cannot bind the • estate, because she. had no power to make such an agreement; certainly not if the alleged agreement was made before her appointment.' If made afterwards, even then the estate is not liable, unless it appears that the money paid or services rendered were for the estate, and “ ought equitably to be paid out of the estate; ” and there is no such finding in the case. But the expenses were evidently incurred before administration was granted.
The statute only contemplates expenses incurred by executors or administrators legally appointed and authorized to act as such, and cannot be made to apply to expenses previously incurred by interested parties. This is manifest from the further provision of the statute, that the creditormáy at his election pursue his legal remedy against the executor or administrator personally.. Of course nothing in this opinion is intended to prevent the court of probate from allowing to the administrators in their administration account any just and reasonable expenses incurred in behalf of the estate before administration. Upon the facts as they now appear, we think the plaintiff must seek his remedy in that direction, or against the administratrix personally.
[118]*118The first three items of the plaintiff’s account accrued in the proceedings to appoint conservators. The court found that they were reasonable charges for services rendered and moneys paid out. No objection is made that the services rendered and moneys paid were not for the benefit of the ward, and while she was without a conservator; but the objection is that the charges should have been made against the conservator personally.
The charges being proper, it was doubtless the duty of the conservator to pay them from funds in his hands and charge the money so paid in his account; but that duty devolved on him as conservator and did not make him a debtor in his private capacity. When the right to charge matured there was no conservator. Of course the charge could only be made against Mrs. Main. The relation of debtor and creditor between her and the plaintiff was then fixed, and that relation was not disturbed or changed by the appointment of a conservator. Hence, if a suit was necessary, she was the proper party during her lifetime to make defendant, and after her death her administrators. A conservator cannot be made personalty liable for existing debts. There may be some liability if he neglects or refuses to pay or provide for them, but that liability does not go to the extent of making him personalty a debtor to the creditor. We discover no error in allowing these items.
A portion of the account allowed by the court below accrued while the intestate and her estate were subject to the control and management of a conservator. The defendant insisted that these items, if proper charges at all, could not be charged to the ward, but should have been charged to the conservator. The court ruled otherwise, and that ruling is assigned as a reason of appeal.
An executor or administrator, as we have seen, has no power to bind the estate he represents by contract, except as such power may be implied from the statute of 1882 above referred to. But that statute was not in force when the services were rendered for which those charges were made. Moreover, the statute was not intended to affect [119]*119the personal liability of an executor or administrator; its principal object seems to have been to give the creditor a right to collect his debt from the estate as a cumulative remedy. So that, if the word “ guardian ” in the statute may be interpreted as including conservators, as perhaps it may, still the statute will not affect the question now before us.
It has been repeatedly decided in Massachusetts that a guardian has no power to bind the ward or his estate by his contract. Thacher v. Dinsmore, 5 Mass., 299; Forster v. Fuller, 6 id., 58 ; Wallis v. Bardwell, 126 id., 366.
Administrators and guardians in this respect are closely analogous to conservators. The powers and duties of a conservator are defined in a general way by statute. He “ shall have the charge of the person and estate of such incapable person; ” “ the conservator shall manage all the estate of his ward, and apply the net income thereof, and, if necessary, any part of the personal estate, to support him and his family and to pay his debts, and may sue for and collect all debts due to him.” The statute neither expressly nor impliedly authorizes the conservator to make contracts in the name of the ward, and the ward is legally incapable of making a contract. A conservator, unlike an overseer, acts independently of his ward, and in all his transactions he alone is the responsible party. He is not however bound to contract debts and pay them from his own estate. The law places in his hands ample means for supplying himself with funds to meet all his obligations. If he suffers loss personally it must be through his own neglect. Sabrina Main being in fact and in law incapable of making a contract when the services were rendered, it is difficult to conceive how she or her estate can be held liable ex eontraetu.
Again. The services performed by the plaintiff, if proper, should have been performed by the conservator. The finding shows that they were in fact performed at his request. Regularly he should have paid for them and charged the amount paid in his account. Upon the presumption that he did his duty we must presume that he did so, and that [120]*120the amount paid was included in the balance found due him. As the record stands these items seem to have been erroneously allowed.
The fifth reason of appeal is, that the court should not have allowed the sum of $34.56, paid by the plaintiff to the conservator October 26th, 1881. That sum was paid by direction of the judge of the probate court. There is no finding that the administrators, who were appointed the day before, requested the payment. The objection is that the claim was not presented to the administrators as a claim against the estate by Mr. Gallup, and that there was no assignment by him to the plaintiff, although the plaintiff duly presented the claim.
We do not understand that the judge of probate had any power to direct as to the disposition of the funds in the plaintiff's hands. It was a mere personal direction and not a judicial order. Even if the probate court had ordered it, the order would have been invalid, because it was a matter not within its jurisdiction. So far as we can see, the only way to relieve the transaction from being a gratuitous paj-ment is to regard it as a purchase by the plaintiff. In that event he could only recover as an assignee and upon a complaint adapted to the facts. There is therefore a technical difficulty in allowing this item as a basis of recovery; but there was no difficulty in allowing it as a set-off to the demand against the plaintiff, if it appeared that Mr. Gallup was justly entitled to it, and that the estate was benefited to that amount. We think that the court might properly treat it as an equitable accounting for so much money. That it was allowed as a set-off only is apparent from the fact that the judgment was for a less sum than the amount erroneously allowed.
The judgment is reversed and a new trial ordered.
In this opinion the other judges concurred.