The opinion
CULLEN, J.
There was nothing “personal” in this contract in suit. It was a mere contract to do certain work for a stipulated price. The plaintiffs were not to perform it personally, but at least in part through their workmen. No relation of master and servant existed between the parties. It is true that upon the death of Webb the house went by devise to Mrs. Rankin, and his personal representatives had no interest in it. But this would be the case in every contract for work on real estate where the testator does not devise the realty to his executors, or direct an equitable conversion. In Lacy v. Getman, 119 N. Y. 111 , 23 N. E. 452 , Judge Finch does state that the executor had no power to put the plaintiff at work on the land or interest in it. But I think the decision does not proceed on that ground, but on the ground that death would substitute a new master. It has been held that, where the deceased had contracted for the erection of a building on land, the heir at law could enforce the performance of the contract at the expense of the personal estate. 3 Williams, Ex’rs, 1829.
BROWN, P. J., concurs.