SlMRALL, J. C
F. Barksdale, surviving partner of McFarland, deceased, filed his bill in the chancery court of Yazoo county, against the legatees and devisees of Hiram Hagan, deceased, to recover from them an aocount for goods, etc.
In 1848, the testator, deceased, having made a last will and testament, which was duly probated, the executors, named in the will, either died, or resigned their office, shortly after their appointment, and in 1855, Jas. Barnett was designated and qualified as administrator “ cum testamento an-nexo” who acted as such until his death in 1866. The will is made an exhibit to bill; so much of it, as is material to this controversy, is in these words: “ It is my wish that all of my property of all kinds, be kept in the hands of my executors to be hereafter named, until all my children become of age, at the same time allowing to each one, as he or she becomes of age, to withdraw his or her portion. It is also farther my wish, that my executors shall continue to cultivate my lands with the negroes I now own, and the proceeds of the crops after paying all necessary expenses of the plantation, and the clothing and education of my children, to be applied to the purchase of negroes and such other property as the wants of my family may require.”
In 1861, Barksdale & McFarland supplied family and plantation goods to the amount of $1,587 31, at the request of Barnett, the administrator.
[191]*191The youngest child did not attain majority until several years after the account was contracted.
The question for discussion and decision, is: Are the legatees and devisees, or the property derived under the will of the testator in their hands, liable to this debt? •
It is a well established principle of the common law, affirmed in repeated decisions of this court, that an executor or administrator has generally no authority to create liabilities or to impose burdens on the estate.
Ordinarily, the duty of the executor is to collect the assets, pay off creditors, and hand over the residue to those entitled under the will. For this purpose he is a trustee, clothed with legal title, as to choses in action and personal effects.
If it be sought to charge the estate or the legatees with any liability of his contracting, the power so to do must be pointed out in the will, and the act done must be brought within the scope and terms of the power.
It is incident to the dominion which the . owner has over his property, that he may confer a power on his executor to deal with it as the last testator, has prescribed (so that no rule of law be violated).
Those dealing with an executor are in the precise attitude of those who do business with an agent; in either case they must know, at their peril, the extent and measure of the authority. Both are acting, not by virtue of an inherent, original right, but as delegates for others. Both bind others (if at all) by reason of authority delegated to them for that purpose.
Barksdale & McFarland did business with Barnett, to whom was committed the execution of the will of Hagan, on the distinct understanding that the acts of Barnett were obligatory or not on the legatees and devisees, as Barnett did or did not conform to the power granted by the will.
Looking to the will itself as its best interpreter, and gathering from it the surroundings of the testator, and we find him in these circumstances: A cotton planter with land and negroes, a wife and minor children ; about to leave behind [192]*192for these objects of his bounty, a property ample for then-support and the education of the children, and above this, a,surplus, which, as it accrued, was to be invested to add to the corpus and productiveness of the property. He contemplated that his widow and children should reside on the plantation, and be maintained out of its annual products and income. As the children severally attained their majority, his or her portion should be withdrawn, and when the youngest child became of age, partition to be made. The testator evidently believed that this scheme could not be interfered with by creditors. He did not think that he was embarrassed with debt.
The carrying- out of this plan was entrusted to the executors.
It will not be pretended that the executor (if he should conceive that it would conduce to the interest of the family and increase of the estate) had the power and the will to “ purchase any sort of property ” on a credit, and impose a debt therefor on the widow and children, or on the estate of Hagan. The reason is very plain. The power is not conferred. Such purchases can only be made out of the “ proceeds of the crops. ” Large discretion is placed in the executors as to the purchase of property. It may be real or personal; it may be in town or co'untry; but it must be paid for out of the “income of crops.”
The goods furnished by Barksdale & McFarland, were for the benefit of the family and plantation. But what provision did the testator make for paying for them. The proceeds of the crops are first dedicated to pay “ the expenses of the plantation, and the clothing and education of the children,” etc. The “ crops ” is the fund set apart by the testator to pay the expenses, not the body of the property.
There is a strong analogy between this case and that of an administrator or executor authorized to finish a growing crop. The statute declares that the proceeds of the crop shall be assets, subject to debts, legacies, and distribution. “ The taxes, expenses, etc., of making or gathering the crop, [193]*193being first deducted.” In the construction of this statute; where a creditor had furnished necessaries for making the crop, in Emanuel v. Norcum & Burnell, 7 How., 154, it was said that creditors of this description can look to no other fund than the crops. And he who deals with the administrator “ takes upon himself the risk of profit.” Such creditors are entitled to full payment, notwithstanding the estate may he insolvent, for their claims extend not to the property in general, hut to a particular fund, the profits of the crop, that part only being general assets, which are in excess of the expenses. ■
This statute does not more distinctly point creditors who make advances to the administrator to finish the “ growing-crop,” to the proceeds of the crop, as the means of payment, than does the will of Hagan refer creditors, who contribute necessaries to the plantation and family, to the “ proceeds • of crops,” as the fund to which they must look.
If Barnett had year after year, wasted the income, would the .remedy of creditors like Barksdale, survivor, be against these plaintiffs in error, or against Barnett, and the sureties on his bond? Would the claim against the legatees and devisees be at all strengthened by the fact, that the principal and sure- • ties were insolvent? The satisfactory response would be, that the creditor dealt, with knowledge of the power of Barnett, and the fund indicated for payment, and took the risk. In Ward v. Harrington, 29 Miss., 246, the will directed the executors to keep the property, consisting of a plantation and slaves, together until certain- of his children attained majority, and to apply the income of the property to the payment of his just debts, and the maintenance of his family. The executor created a large account with a merchant, fertile benefit of the estate, upon which judgment was confessed by the executor.
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SlMRALL, J. C
F. Barksdale, surviving partner of McFarland, deceased, filed his bill in the chancery court of Yazoo county, against the legatees and devisees of Hiram Hagan, deceased, to recover from them an aocount for goods, etc.
In 1848, the testator, deceased, having made a last will and testament, which was duly probated, the executors, named in the will, either died, or resigned their office, shortly after their appointment, and in 1855, Jas. Barnett was designated and qualified as administrator “ cum testamento an-nexo” who acted as such until his death in 1866. The will is made an exhibit to bill; so much of it, as is material to this controversy, is in these words: “ It is my wish that all of my property of all kinds, be kept in the hands of my executors to be hereafter named, until all my children become of age, at the same time allowing to each one, as he or she becomes of age, to withdraw his or her portion. It is also farther my wish, that my executors shall continue to cultivate my lands with the negroes I now own, and the proceeds of the crops after paying all necessary expenses of the plantation, and the clothing and education of my children, to be applied to the purchase of negroes and such other property as the wants of my family may require.”
In 1861, Barksdale & McFarland supplied family and plantation goods to the amount of $1,587 31, at the request of Barnett, the administrator.
[191]*191The youngest child did not attain majority until several years after the account was contracted.
The question for discussion and decision, is: Are the legatees and devisees, or the property derived under the will of the testator in their hands, liable to this debt? •
It is a well established principle of the common law, affirmed in repeated decisions of this court, that an executor or administrator has generally no authority to create liabilities or to impose burdens on the estate.
Ordinarily, the duty of the executor is to collect the assets, pay off creditors, and hand over the residue to those entitled under the will. For this purpose he is a trustee, clothed with legal title, as to choses in action and personal effects.
If it be sought to charge the estate or the legatees with any liability of his contracting, the power so to do must be pointed out in the will, and the act done must be brought within the scope and terms of the power.
It is incident to the dominion which the . owner has over his property, that he may confer a power on his executor to deal with it as the last testator, has prescribed (so that no rule of law be violated).
Those dealing with an executor are in the precise attitude of those who do business with an agent; in either case they must know, at their peril, the extent and measure of the authority. Both are acting, not by virtue of an inherent, original right, but as delegates for others. Both bind others (if at all) by reason of authority delegated to them for that purpose.
Barksdale & McFarland did business with Barnett, to whom was committed the execution of the will of Hagan, on the distinct understanding that the acts of Barnett were obligatory or not on the legatees and devisees, as Barnett did or did not conform to the power granted by the will.
Looking to the will itself as its best interpreter, and gathering from it the surroundings of the testator, and we find him in these circumstances: A cotton planter with land and negroes, a wife and minor children ; about to leave behind [192]*192for these objects of his bounty, a property ample for then-support and the education of the children, and above this, a,surplus, which, as it accrued, was to be invested to add to the corpus and productiveness of the property. He contemplated that his widow and children should reside on the plantation, and be maintained out of its annual products and income. As the children severally attained their majority, his or her portion should be withdrawn, and when the youngest child became of age, partition to be made. The testator evidently believed that this scheme could not be interfered with by creditors. He did not think that he was embarrassed with debt.
The carrying- out of this plan was entrusted to the executors.
It will not be pretended that the executor (if he should conceive that it would conduce to the interest of the family and increase of the estate) had the power and the will to “ purchase any sort of property ” on a credit, and impose a debt therefor on the widow and children, or on the estate of Hagan. The reason is very plain. The power is not conferred. Such purchases can only be made out of the “ proceeds of the crops. ” Large discretion is placed in the executors as to the purchase of property. It may be real or personal; it may be in town or co'untry; but it must be paid for out of the “income of crops.”
The goods furnished by Barksdale & McFarland, were for the benefit of the family and plantation. But what provision did the testator make for paying for them. The proceeds of the crops are first dedicated to pay “ the expenses of the plantation, and the clothing and education of the children,” etc. The “ crops ” is the fund set apart by the testator to pay the expenses, not the body of the property.
There is a strong analogy between this case and that of an administrator or executor authorized to finish a growing crop. The statute declares that the proceeds of the crop shall be assets, subject to debts, legacies, and distribution. “ The taxes, expenses, etc., of making or gathering the crop, [193]*193being first deducted.” In the construction of this statute; where a creditor had furnished necessaries for making the crop, in Emanuel v. Norcum & Burnell, 7 How., 154, it was said that creditors of this description can look to no other fund than the crops. And he who deals with the administrator “ takes upon himself the risk of profit.” Such creditors are entitled to full payment, notwithstanding the estate may he insolvent, for their claims extend not to the property in general, hut to a particular fund, the profits of the crop, that part only being general assets, which are in excess of the expenses. ■
This statute does not more distinctly point creditors who make advances to the administrator to finish the “ growing-crop,” to the proceeds of the crop, as the means of payment, than does the will of Hagan refer creditors, who contribute necessaries to the plantation and family, to the “ proceeds • of crops,” as the fund to which they must look.
If Barnett had year after year, wasted the income, would the .remedy of creditors like Barksdale, survivor, be against these plaintiffs in error, or against Barnett, and the sureties on his bond? Would the claim against the legatees and devisees be at all strengthened by the fact, that the principal and sure- • ties were insolvent? The satisfactory response would be, that the creditor dealt, with knowledge of the power of Barnett, and the fund indicated for payment, and took the risk. In Ward v. Harrington, 29 Miss., 246, the will directed the executors to keep the property, consisting of a plantation and slaves, together until certain- of his children attained majority, and to apply the income of the property to the payment of his just debts, and the maintenance of his family. The executor created a large account with a merchant, fertile benefit of the estate, upon which judgment was confessed by the executor. Executions were levied on property which had come to certain parties as legatees, and the point involved, was it a right to. subject this property. The court rest their judgment exclusively on a construction of the will and say, “ that the will gives the executors no power to encum[194]*194ber the property left by the testator, by the creation of new debts, or by the assumption of new liabilities — their power extended only to the proceeds and income of the estate.”
It was said by Lord Rosendale, in Kirkman v. Booth, 11 Beav., 273,280, to authorize executors to carry on a business or trade, there ought to be the most distinct and positive authority, and direction given by the will for that purpose.
In Catbush v. Catbush, 1 Beav., 184, the testator directed his widow to carry on the business until his youngest child should attain the age of twenty-one, and for that purpose, gave her the “ entire use, disposal, and management of the capital stock and effects, which should be due, owing, or belonging to him in his trade, .at the time of his decease.” It was held by the master of the rolls, that the specified property only, and not the general assets, was liable for debts contracted by the widow in carrying on the trade.
In making provisions for the payment of debts, if the testator designated a particular fund, that is construed to exclude any intention to appropriate a more general fund for the same purpose. If he direct a particular person to pay, he is presumed in the absence of all other circumstances, to 'intend him to pay out of the funds with which he is instructed, and not out of funds in which he has no control. 2 Story Eq. Jur., § 1247.
We are of opinion, that neither according to the case stated in the original and supplemental bills, nor agreed statement of facts, was the complainant entitled to relief against the defendants.
Wherefore, we reverse the decree, and render judgment here dismissing the complainant’s bill.