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personal property, and anyone purchasing from him would take a good title. In some states it is usual to obtain an order from the court directing a sale of personal property, and it is sometimes expedient to secure such an order, more particularly so when the property seems likely to sell for less than its appraised value. Where a business or an interest in a business is to be sold at a private sale, it relieves the personal representative of responsibility if the court orders the acceptance of the offer. Other cases may arise where the representative would prefer to have a court order to relieve himself from responsibility. To sell real estate, an order of sale from the probate court is always necessary unless the will contains a power of sale. To sell personal property, the executor or the administrator acting in good faith and with discretion generally needs no order of court.

§ 117. What to Sell First

An executor should use business judgment in regard to what should be sold first. If specific legacies of personalty have been made, these would not be sold unless it were found impossible to pay all debts from the sale of other personal assets.

It would seem that perishable assets should be disposed of before any others. In some states a special order from the court may be obtained to sell assets that will quickly spoil, waste, or depreciate; but generally speaking, an executor or an administrator not only has authority to do this, but would be deemed culpable if he failed to do so.

Cattle, horses, or any other possessions that demand care and charges for their upkeep, should be sold with least delay. Sometimes such property will be taken over on favorable terms by some one beneficiary. Any risky or speculative investments in goods, stocks, or commodities should be closed out as soon as a good price can be had. A man may take risks with his own means in the attempt to increase his capital, but the duty

of his personal representative is to avoid loss, not to strive for a profit. Hence, unless positively directed otherwise by will, the personal representative should not retain any dubious or speculative investments, but dispose of them to the best advantage and, if their value is to be held, reinvest in safer directions.

It is not expected that the personal representative will go to any considerable expense in repairing, painting, and improving property or premises; but necessary repairs, care, and upkeep to maintain the assets in good condition, should be arranged for.

If, in the executor's judgment, repairs to property will facilitate its sale, the court will allow the executor credit for reasonable expenditures for that purpose. The expense of such repairs is a proper administration expense because it is necessary to the conversion of the property into cash for distribution with the greatest advantage to the estate.

When a beneficiary will take part or all of the personal assets at not less than their appraised value, the representative will usually be justified in dealing with him.

After disposal of such personal property as has been mentioned, an administrator with no will to direct him should arrange to sell the remaining goods and choses in action at some convenient time and place.

§ 118. How to Sell Goods and Chattels

The usual method of selling personal goods and chattels is to have a public sale and dispose of them at auction to the highest bidder. The time of an auction sale should be printed in the bills and advertisements. If the goods are advertised to be sold to the highest bidder, the auctioneer may not bid in himself nor refuse to sell to a bona fide bidder. If the sale is under order of court, the terms specified must be observed. If terms of credit are announced, bidders must not be permitted

to take goods away until they have complied with these terms, and the representative will be responsible for any losses that ensue through failure to observe them. For instance, if buyers were given six months' time on all amounts in excess of $100 on giving bankable notes for the amount, they should not take any goods away until such notes had been given; but if they gave such notes and later the notes were dishonored, the executor would not be held responsible.

§ 119. Selling Securities

In reducing the assets to cash, good, income-yielding securities should be retained as long as possible, both because they are yielding an income and because they can be sold without loss at any time. But speculative and uncertain stocks and securities should be sold at an early date to the best possible advantage. If they are depreciated in value and are likely to be worth more later, they should be held back from immediate sale; but if there is no likelihood of their being worth more, they should be disposed of, and if any of the beneficiaries want to take them at their appraised value it would be proper to let such have them.

Notes and claims should be collected when due. Such obligations may at times be sold. If secured and not immediately due, it may be best to sell them, at not less than their appraised value.

§ 120. Consultation with Beneficiaries

When the beneficiaries are of age and accustomed to doing business, the personal representative may advantageously consult them as to the sale and disposition of the assets. It may be that the best disposition of personal property can be agreed upon by all interested, in which case a written consent signed by all would relieve the representative of a responsibility that he might not care to assume. It might be that one or more

of those interested would be willing to take over some part or all of some class or classes of property. If the others would agree and give written consent, the representative could complete the deal.

If the representative himself desired to buy some part of the assets of the estate it would be improper, and he could avoid the suspicion of fraud only by getting the consent of all those vitally interested.

§ 121. Disposing of a Going Business

Sometimes a business is wound up and the stock is sold at auction. Or the stock may be marked down and special sales held until it is depleted; then the remainder is sold at auction. The appraised value of the goods in stock would probably be secured by this procedure, but the good-will would be dissipated. If the business were solvent, the good-will should have a real value. This the personal representative should endeavor to turn into cash.

In appraising the assets, the general rules as to the value of good-will should be followed. (See $157 and cases.) If a business is to be sold, the executor or the administrator should try to realize on the good-will. To do this the business must be sold as a going concern, with good-will, trade-marks, tradenames, trade assets, and lists of names all included. In many lines there are brokers who undertake to sell going businesses for a fair commission. Where this is not the case, the representative must advertise in trade papers, correspond with other dealers in the line, and consult with all who might purchase or know of possible purchasers. Sometimes older employees may be encouraged by easy terms to take over the business. Sometimes one of the beneficiaries may be willing to go on with it.

The executor or the administrator may keep up and carry on the business in order to sell it as a whole. He may not

carry it on to make money for the estate. His function is not to make but to save, to avoid loss, and to distribute and settle the estate as soon as it can be done.

§ 122. Disposing of a Partnership Interest

An executor or an administrator has no authority in a partnership, or to wind up the affairs of a partnership. That devolves on the surviving partner or partners.

The death of a partner dissolves a partnership immediately, whether it be a partnership at will or a partnership for a fixed term. The mutual agency, characteristic of all partnerships, is at once revoked, and the estate of the deceased partner is not bound by any contract or obligation entered into after his death.

A partnership agreement may provide for the event of a partner's death. (See Chapter XIX, § 160, "Provisions for Death in Articles," and cases.) It is not easy, though, to make an agreement that will hold the estate of a deceased partner liable for more than the amount invested at the time of death.

A partnership agreement for the survivor to take over the business, or giving him the option of purchase at a specified price, is held to be good in New York and Massachusetts, while in Rhode Island and Alabama it has been held otherwise.1

If the partnership agreement provides for sale to the other partner or partners, the personal representative has no responsibility other than to see that the agreement is carried out, and that the estate receives the agreed amount for the deceased partner's share.

In cases where there is no such arrangement, the possession of the business and assets will devolve on the surviving partner or partners for the purpose of winding up the partner

1 For a fuller discussion of this question see an excellent synopsis of the cases in Lawyers' Reports Annotated (New Series), 1918 B, 905.

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