383. - Nev. 171 Pac. 11. Powers and liabilities; conduct of estate; assets. a. Rights, powers, and duties. a. An executor or administrator has un- L.R.A.1918D, 1022, doubted power at common law to compromise disputed claims affecting the estate he represents. Parker v. Providence & S. S. S. Co. 14 L.R.A. 414, 17 R. I. 376, 378, 22 Atl. 284, 23 Atl. 102. b. Statutes empowering executors or administrators to compromise disputed claims affecting the estates they represent are a reinforcement and reaffirmance of their common law power. Parker v. Providence & S. S. S. Co. 14 L.R.A. 414, 17 R. I. 376, 378, 22 Atl. 284, 23 Atl. 102. c. The mere fact that a debtor to the estate has the legal title to a piece of land does not show that a compromise with him by an executor of a claim due the estate was improper. Re Ricker, 29 L.R.A. 622, 14 Mont. 153, 35 Pac. 960. § 30. To mortgage estate. See also TRUSTS, § 87 b. a. Executors have power to mortgage a trust estate when to do so does not violate the intention of the testator, and when the purpose of the trust is best accomplished by so doing. Re Lueft, 7 L.R.A. (N.S.) 263, 129 Wis. 534, 109 N. W. 652. $ 31. Use of funds. Duty to deposit funds in bank, see ante, § Purchase of boxes in which to market ap- By trustee, see TRUSTS, §§ 75 g, 89 d, 107 e. 2 L.R.A. 644, 111 N. Y. 531, 19 N. E. 94. b. Executors have no power to complete a building devised in an unfurnished condition, out of the funds of the estate, except so far as contracts have been let by the testator. Re Hincheon, 36 L.R.A. (N.S.) 303, 159 Cal. 755, 116 Pac. 47. f. In case a testator sets apart a certain sum for the erection of a suitable monument to his memory, the executors may spend all or any part of the sum for a Fancher v. monument in their discretion. Fancher, 23 L.R.A. (N.S.) 944, 156 Cal. 13, 103 Pac. 206. § 32. To bind estate by contract. Power of one who has fraudulently secured letters of administration to bind estate by compromise of action brought for decedent's death, see COMPROMISE AND SETTLEMENT, § 7 m. See also ante, § 31; post, § 60 b. a. An executor cannot bind the estate by. any contract of his own making. Dodd v. Anderson, 27 L.R.A. (N.S.) 336, 197 N. Y. 466, 90 N. E. 1137. b. Executors are not chargeable as such on their executory contracts. Bauerle v. Long, 52 L.R.A. 643, 187 Ill. 475, 58 N. E. 458. c. Administrators have no authority in themselves to enter into contracts in behalf of the estate. Daviess County Bank & T. Co. v. Wright, 17 L.R.A. (N.S.) 1122, 129 Ky. 21, 110 S. W. 361. d. Estates of deceased persons are not directly liable to those who have been employed by the executor or administrator to assist him in the performance of his duties Golden Gate Underof administration. taking Co. v. Taylor, 52 L.R.A. (N.S.) 1152, 168 Cal. 94, 141 Pac. 922. e. An administrator may bind the estate for boxes necessary to market a crop of ute requiring him to take the estate into apples belonging to the estate, under a stathis possession and allowing him all neces sary expenses in the care and management of it. L.R.A.1917E, 966, 96 Wash. 46, 164 Pac. 593. $ 33. — creating debt. a. An administrator has no authority as such to create any debts against the estate. Rich v. Sowles, 15 L.R.A. 850, 64 Vt. 408, 23 Atl. 723. b. An executor or administrator cannot, by executory contract, impose a new liability on the estate which he represents. Simmons v. Crisfield, 26 L.R.A. (N.S.) 663, 197 N. Y. 365, 90 N. E. 956. c. Neither the executor, in the absence of authority in the will so to do, nor an administrator, can, by contract, either express or implied, impose any new debt upon the estate of the decedent. Elmore v. Elmore, 51 L.R.A. 261, 58 S. C. 289, 36 S. E. 656. c. The vindication of the honor of his intestate is not a purpose for which an administrator can use funds of the estate by employing counsel to aid in prosecuting for murder one who killed the intestate and attacks his honor by matters which he alleges in justification of the crime. Woodard v. Woodard, 16 L.R.A. 743, 36 S. C. 118, 15 S. E. 355. (Annotated) d. An executor with express power to manage the estate until minors become of age has implied authority to expend income in rebuilding a cotton gin and press which are necessary for the successful management of the estate. Henry v. Henderson, 63 L.R.A. 616, 81 Miss. 743, 33 So. 960. go into the market and borrow money withe. An administrator is not entitled to credit for money expended without an order of court in annual assessment work upon a mining claim belonging to the estate, which claim is but a prospect, if there was ample time to secure such order before the payment became necessary. Re Delaney, L.R.A. Comb. Dig.-281. d. An administrator is not permitted to out authority of law, and charge the estate by a contract originating with himself. Bank of Newton County v. American Bonding Co. 50 L.R.A. (N.S.) 1089, 141 Ga. 326, 80 S. E. 1003. e. An executor cannot bind the estate of his testator by giving notes in his repre II. Powers and liabilities; conduct of estate; assets. a. Rights, powers, and duties. sentative capacity, in the absence of author- which he is expressly authorized to conWillis v. ity delegated to him by the will. Browne, tinue, shall seem to require. v. Fairhall, 45 L.R.A. (N.S.) 349, 213 Mass. Sharp, 4 L.R.A. 493, 113 N. Y. 586, 21 N. 290, 100 N. E. 556. E. 705, for later appeal 5 L.R.A. 636, 115 N. Y. 396, 22 N. E. 149. f. An executor who is empowered by the will to do anything concerning testator's estate which he himself would do if living, leaving it to his judgment how he shall manage "my business," has power, where testator's business is the management of a corporation of which he is practically the sole stockholder, to borrow money, if necessary, to carry on the business, and bind the entire estate for its repayment. Schlickman v. Citizens' Nat. Bank, 29 L.R.A. (N.S.) 264, 139 Ky. 268, 129 S. W. 823. g. Adding "admr." to one's name when signing a letter by which a purchase is made does not bind the estate or prevent him from being bound personally. Rich v. Sowles, 15 L.R.A. 850, 64 Vt. 408, 23 Atl. 723. (Annotated) a. Administrators have no power to guarantee the payment of bonds of a corporation, issued for the purpose of taking up its paper upon which decedent was liable as indorser, although such guaranty would procure an extension of time, and save the estate from insolvency; hence, they will incur no liability by authorizing third persons to make such guaranty on behalf of the estate. Benedict v. Chase, 8 L.R.A. 120, 58 Conn. 196, 20 Atl. 448. c. The creditors of a testator are entitled at once to have his assets collected in and applied upon their debt, a reasonable time being allowed for the ascertainment of the debts and the conversion of the assets, and no direction of the testator as to the continuance of his business will be allowed to interfere with such right. Willis v. Sharp, 4 L.R.A. 493, 113 N. Y. 586, 21 N. E. 705, for later appeal 5 L.R.A. 636, 115 N. Y. 396, 22 N. E. 149. d. Provisions in a will authorizing the executor to continue the testator's trade are to be strictly construed both as to the existence and extent of the authority of the executor, the intention to confer such power must be found in the direct, explicit, and unequivocal language of the will and, in the absence of express provision to the contrary, the trade must be carried on with the fund invested in it at the time of the testator's death and that fund only can be subjected to the hazards of the trade. Willis v. Sharp, 4 L.R.A. 493, 113 N. Y. 586, 21 N. E. 705, for later appeal 5 L.R.A. 636, 115 N. Y. 396, 22 N. E. 149. e. Authority conferred upon an executor to carry on testator's business without bond will not, upon his resignation, pass to an administrator de bonis non with the will annexed. Schlickman V. Citizens' Nat. § 35. Carrying on business. Personal liability incurred by executor or Bank, 29 L.R.A. (N.S.) 264, 139 Ky. 268, administrator in, see post, § 59. Right of debts incurred in carrying on business to preference in payment, see post, § 93 c, d. Administrator of keeper of saloon, who continues business, as person engaged in liquor business within insurance policy, see INSURANCE, § 392 d. See also ante, §§ 32 e, 33 f; post, § 59; a. The death of a trader puts an end to any trade in which he was engaged at the time of his death and an executor or administrator has no authority virtute officii to continue it, except for the temporary purpose of converting the assets employed in the trade into money, but a testator may authorize or direct such executor to con tinue in trade or employ his assets in business and such authority, if strictly pursued will protect the executor from responsibility to those claiming under the will, in case of loss happening without his fault or negligence and also entitles him to indemnity out of the estate for any liability lawfully incurred within the scope of the power. Willis v. Sharp, 4 L.R.A. 493, 113 N. Y. 586, 21 N. E. 705, later appeal 5 L.R.A. 636, 115 N. Y. 396, 22 N. E. 149. b. A pledge of the general assets of a deceased person is made for the payment of goods purchased on credit by an executor, where the will gives him authority to sell or make such other disposition of the estate as the safe conduct of the business, 129 S. W. 823. f. A statute providing that an administrator with the will annexed shall exercise all the powers and authority, and possess the same rights and interest, as the execu tors named therein, does not confer upon the will upon the executor, to carry on such administrator a power conferred by testator's business without bond. Schlick man v. Citizens' Nat. Bank, 29 L.R.A. (N.S.) 264, 139 Ky. 268, 129 S. W. 823. (Annotated) tor to carry on testator's business does not g. The power conferred upon an execupass to an administrator de bonis non because of a clause to the effect that the devise to testator's children is subject to the power conferred on the executor, and shall in no case be construed as a limitation upon his power to carry on the business. Schlick Citizens' Nat. Bank, 29 L.R.A. (N.S:) 264, 139 Ky. 268, 129 S. W. 823. § 36. Tort of executor or adminis Personal liability for, see post, § 53. trator. a. The estate of a decedent is not liable for the tortious act of an administrator committed in the course of his administra tion. Bank of Newton County v. American Bonding Co. 50 L.R.A. (N.S.) "1089, 141 Ga. 326, 80 S. E. 1003. § 37. Control c court over executors. a. Rights, powers, and duties. Re Miller, L.R.A.1915D, 856, 90 Kan. 819, 136 Pac. 255. II. Powers and liabilities; conduct of estate; assets. As to property in other states, see COURTS, | administrator. § 21 b. Whether representative must obtain consent of court to settlement of claim for wrongful death, see DEATH, § 49 b, c. a. The acts of executors are subject to the control of the court appointing them, notwithstanding they act under powers conferred by the will. Bauerle v. Long, 52 L.R.A. 643, 187 Ill. 475, 58 N. E. 458. b. In the absence of insolvency, incompetency, or fraudulent conduct, in reference to the management of the estate, courts have no authority to take from the executor the powers and duties conferred upon him by the testator; nor can they change, or in any way modify, the purposes of a testator as solemnly expressed in his last will and testament. Anderson v. Butler, 5 L.R.A. 166, 31 S. C. 183, 9 S. E. 797. c. The court will not interfere with the discretion placed in an executor without clear and just cause. Re Buchar, 25 L.R.A. (N.S.) 421, 225 Pa. 427, 74 Atl. 237. d. The court will interfere with the discretion placed in an executor and protect the interests of the beneficiary when the executor is actuated by improper or selfish motives, or his discretion is not exercised in good faith, but arbitarily and to further his own personal interests. Re Buchar, 25 L.R.A. (N.S.) 421, 225 Pa. 247, 74 Atl. 237. b. The title of the administratrix to the property of an estate, relates back to the instant of decedent's death, regardless of when appointed. Blackman v. Baxter, 70 L.R.A. 250, 125 Iowa, 118, 100 N. W. 75. c. An executor or administrator, although vested with the legal title to the personal property of the estate, holds that title charged with the duty of managing and disposing of the same in accordance with the provisions of the will or of the law. McKeigue v. Chicago & N. W. R. Co. 11 L.R.A.(N.S.) 148, 130 Wis. 543, 110 N. W. 384. d. An administrator represents the Permitting transfer of stock by, see PROXI- a. An executor has at common law an absolute power of disposal over the whole personal property of his testator. Chapman v. Charleston, 3 L.R.A. 311, 30 S. C. 549, 9 S. E. 591. e. Discretion vested in an executrix by a testator, to decide when his son shall be morally fit to have control of property bequeathed to him, will be controlled by the b. At common law the executor and adcourt where she refuses to act although ministrator has an absolute power of dismoral character on the part of the son suffi- posal over the whole of the personal effects cient to enable him to accumulate and pro- of the decedent, with full power to comtect property is shown, where she is hostile promise or accept any composition or otherto the son and would profit should the prop-wise settle, any debts, claim or thing whaterty be kept intact and he die without issue. Re Buchar, 25 L.R.A. (N.S.) 421, 225 Pa. 427, 74 Atl. 237. (Annotated) 2. Possession or disposal of property. soever. Olston v. Oregon Water Power & R. Co. 20 L.R.A. (N.S.) 915, 52 Or. 343, 96 Pac. 1095, 97 Pac. 538. c. An administrator has the full legal title to all choses in action due the estate of the decedent, and he may, in the absence a. Personal property; choses in action. of fraud or collusion, release, compromise, C. Use of money of estate to pay debt of rep- Replevin against, by mortgagee for mort- a. Under the common law and as a general rule the situs of personal property is the residence of the owner and the title to personalty is in the domiciliary executor or or discharge them as fully as if he were the absolute owner, being answerable only for any improvidence in the exercise of the power. Carr v. Illinois C. R. Co. 43 L.R.A. (N.S.) 634, 180 Ala. 159, 60 So. 277. d. When the power to dispose of personal property belonging to a testator's estate is given to executors as such, it may be exercised by one or more of them. Chapman v. Charleston, 3 L.R.A. 311, 30 S. C. 549, 9 S. E. 591. e. The restriction upon the power of an executor to dispose of the personal property of his testator, found in S. C. Gen. Stat. § 1976, does not apply to his power to dispose of choses in action. Chapman v. Charleston, 3 L.R.A. 311, 30 S. C. 549, 9 S. E. 591. f. The authority of an administrator acting in good faith to transfer choses in action belonging to the estate for a valuable consideration does not entitle him to give II. Powers and liabilities; conduct of estate; assets. a. Rights, powers, and duties. Flynn v. Chicago G. W. R. dispose of them. Chapman v. Charleston, Co. 45 L.R.A. (N.S.) 1098, 159 Iowa, 571, 3 L.R.A. 311, 30 S. C. 549, 9 S. E. 591. them away. 141 N. W. 401. g. An administrator cannot assign to the widow without consideration a right of action for death of his intestate, constituting part of the assets of the estate, where there are surviving children and under the statute, any recovery is for the benefit of both widow and children. Flynn v. Chicago G. W. R. Co. 45 L.R.A. (N.S.) 1098, 159 Iowa, 571, 141 N. W. 401. (Annotated) h. Although the common-law right of the administrator to dispose of decedent's personal property does not exist, and the terms of an order of court allowing property to be disposed of at private sale must be strictly complied with, yet an approval of the sale by the court is not necessary to pass the title if the court's order does not require a confirmation. The title passes upon the purchaser's compliance with the terms of the sale. Citizens Street R. Co. v. Robbins, 12 L.R.A. 498, 128 Ind. 449, 26 N. E. 116. (Annotated) pay i. A certificate of stock of a municipal corporation, which is nothing more than a statement that the corporation owes the person named therein, or his assigns, a certain sum of money which it promises to at a certain time, with interest at a specified rate, payable at stated times, and which contains a stipulation that the same is transferable only at the office of its treasurer, is a chose in action; and if such certificate belongs to the estate of a deceased person, no order of sale is necessary to validate the transfer thereof by his executor. Chapman v. Charleston, 3 L.R.A. 311, 30 S. C. 549, 9 S. E. 591. j. A private sale, by an administrator, of personal property of the decedent upon a credit of ten years, with the purchaser's individual note as security, is void if made under an order of the court which permits a private sale but directs the taking of good and sufficient security for payment of purchase money, without naming the time of credit to be allowed, where the statute allows a credit of only one year. Citizens Street R. Co. v. Robbins, 12 L.R.A. 498, 128 Ind. 449, 26 N. E. 116. b. Real property. $ 40. Generally. Executor's right of action for injury to decedent's real estate in his possession, see post, § 76 f. Right of administrator to bring action to declare resulting trust in land, see post,. § 76 h. Right of administrator to bring action to redeem from mortgage, see post, § 76 i. Right to bring suit to set aside conveyance, see post, § 77. Right to possession of lands in other state, Adverse possession by executor, see AD- Right to convey lands held adversely, see Sufficiency of evidence that amount received Injunction to restrain sale of, see INJUNC- Liability for interest of heirs required to Devolution upon administrator of special title acquired by assignee of mortgage for purpose of foreclosure only, see MORTGAGE, § 51 m. Binding effect on doweress of acts of ad ministrator acting as her agent, see a. An administrator has no interest in the lands of a decedent. Smith v. Smith, 43 L.R.A. 403, 174 Ill. 52, 50 N. E. 1083. b. An administrator is not entitled to 295. the possession of property of which the decedent whose estate he represents died possessed, as against a defendant who shows that he is the equitable owner thereof, in the absence of proof that there are credk. When power is given to executors to itors of the estate whose equitable claims sell and dispose of such part of testator's to the property take precedence over that estate as they may think expedient, except of the defendant. Koslowski v. Newman, the dwelling house and its appurtenances 3 L.R.A. (N.S.) 704, 74 Neb. 704, 105 N. W. and public securities to a certain amount, which is to constitute a sum for testator's daughters, which sum is directed by the will to be taken from the most secure investments which testator had; and the will provides that a division of the estate shall be made at a certain time, at which the daughters' share shall be taken from the estate and given to trustees; and that the share of each daughter dying before that time without issue shall cease,-if all the daughters die without issue before the time for division arrives, the exception in the power of sale, as to the public securities, ceases, and the executors may thereafter (Annotated) c. The taking possession by an executor de son tort of premises for which decedent had secured a lease to begin in futuro, paying rent from month to month, does not give him any rights under the lease, but makes he would have no authority to take posseshim tenant only from month to month, since sion under the lease. Grace v. Seibert, 22 L.R.A. (N.S.) 301, 235 Ill. 190, 85 N. E. 308. (Annotated) d. Lands purchased on a mortgage sale by the mortgagee's administrator cum testamento annexo in his own name, although held by him in trust, take on in his hands the character of the mortgage indebt II. Powers and liabilities; conduct of estate; assets. a. Rights, powers, and duties. edness, and are as personalty of which he an order of court declaring the estate setas executor. can convey a good title that cannot be dis- tled, and discharging him puted by the mortgagee's heirs. Haber- Starr v. Willoughby, 2 L.R.A. (N.S.) 623, (Annotated) man v. Baker, 13 L.R.A. 611, 128 N. Y. 253, 218 Ill. 485, 75 N. E. 1029. 28 N. E. 370. § 41. Power of sale under will. As carrying with it legal title, see CHARI- h. The power of sale does not survive the death of one of the executors under a will appointing testator's wife and son-in-law executors, and directing that "the sale of any real estate as to time, price, and parcel is left absolutely with my executors." parte White, L.R.A.1918E, 1065, 118 Miss. 15, 78 So. 949. Ex Power of sale of real estate devoted to charitable use, see CHARITIES, § 54 t. i. Power by a will to an executor to sell Contract to convey by good and sufficient certain land and divide the proceeds among deed, see DEEDS, § 9 b. certain legatees named is not revoked by a Power of sale as working equitable conver- subsequent codicil giving the land to difsion, see EQUITABLE CONVERSION, § 5:ferent parties not mentioned in the power As avoiding statutes as to suspension of of sale, but not expressly revoking the power of alienation, see PERPETUITIES, Anderson v. Butpower given in the will. § 21 a-d. ler, 5 L.R.A. 166, 31 S. C. 183, 9 S. E. 797. § 42. Exercise of power, see POWERS, § 6 g. and proceeds divided, see WILLS, § 312 C. a. Where a will invests the executor merely with a qualified power of sale and does not devise the land to him, the title vests in the heirs, subject to be devested by the execution of the power. Coles v. Jamerson, 50 L.R.A. (N.S.) 407, 112 Va. 311, 71 S. E. 618. b. Where testator imposes on his executor trusts which require for their performance an estate in lands or a power of sale, the executor takes by implication such estate or power. Lindley v. O'Reilly, 1 L.R.A. 79, 50 N. J. L. 636, 15 Atl. 379. c. The executor has authority to make the sale under a power in a will directing property to be converted into money and the proceeds distributed. Haggin v. Straus, 50 L.R.A. (N.S.) 642, 148 Ky. 140, 146 S. W. 391. d. Executors can give a perfect title to property which they have full power to sell under a will which has been duly probated, although the time for an appeal from the order of probate has not expired. Reed v. Reed, 11 L.R.A. 513, 91 Ky. 267, 15 S. W. 525. e. A power of sale of realty conferred upon two or more executors must be executed by them jointly. Trogdon v. Williams, 10 L.R.A. (N.S.) 867, 144 N. C. 192, 56 S. E. 865. f. A sale of land by executors, under a will giving them power to sell and convey it either at public or private sale, with or without appraisement, on such terms as to them shall seem best, is not affected by a statute regulating the conduct of sales of land directed by will to be sold, and prescribing the manner of giving notice, conveying, etc., "unless by the terms of the will different directions are given." Valentine v. Wysor, 7 L.R.A. 788, 123 Ind. 47, 23 N. E. 1076. g. The power of an executor, under a direction in the will, to sell real estate and distribute the proceeds, is not destroyed by - scope. a. A direction to an executor to divide named, with land among certain persons power to sell any or all of it according to his discretion, gives him authority to parAnderson v. tition it in kind or sell it. Butler, 5 L.R.A. 166, 31 S. C. 183, 9 S. E. 797. b. Power conferred upon executors to sell testator's real estate does not include power to give an option thereon. Trogdon v. Williams, 10 L.R.A. (N.S.) 867, 144 N. C. 192, (Annotated) 56 S. E. 865. c. A provision in a will authorizing the executors to sell real estate if it should become necessary to do so to pay expenses or bequests or for the purposes of saving other portions of the estate does not authorize them to sell property of an amount and value grossly in excess of that necessary for the specified purposes. Townshend v. Goodfellow, 3 L.R.A. 739, 40 Minn. 312, 41 N. W. 1056. § 43. - partnership real estate. a. The sale of a deceased partner's interest in partnership real estate is authorized by a will giving power to settle, adjust, and compromise all debts owing by the testator, to make settlements with his former partners, and to sell and convey any or all of his real estate in order to pay and Valentine satisfy debts against his estate. v. Wysor, 7 L.R.A. 788, 123 Ind. 47, 23 N. E. 1076. b. An executor may convey his testator's interest in partnership real estate to his surviving partner, in consideration of an agreement by the latter to pay partnership debts, where the will authorizes him to make settlements with testator's partners of all matters pertaining to the partnership business, to adjust, settle, and compromise all debts, claims, and demands against the estate, and in his discretion to sell and convey so much of the testator's real estate as should be deemed necessary to satisfy his debts. Valentine v. Wysor, 7 L.R.A. 788, 123 Ind. 47, 23 N. E. 1076. |