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EXECUTORS AND ADMINISTRATORS.

EPITOME OF CASES.

Sec. 340. Contracts and conveyances by executors and administrators. An executor may make a valid agreement with one to whom the estate is indebted to the effect that if he purchases at the sale of the real estate to pay debts, the amounts due him may be deducted from the purchase price. In re Smith's Estate, 179 Pa. St. 208 (36 Atl. Rep. 223). Where a conveyance made in good faith by an executor to discharge a debt is set aside, the amount of the debt is properly fixed as a charge on such land. Sneed v. Russell,

Tenn. (42 S. W. Rep. 213). An executor to whom land is devised in trust for seven years for the use of the testator's children, unless the majority of them elect to sell the same sooner, cannot effect a sale by an application to a court, requested by a majority of the children, but they alone can exercise control over the transfer of title. Porterfield v. Porterfield, 85 Md. 663 (37 Atl. Rep. 358). Where a conveyance made by one who is an administrator of two persons, shows by its recitals that he is conveying lands belonging to both of them, under authority of the proper court and the acknowledgment is made in his name as administrator for each of the persons, such deed is not invalid because it is simply signed with his name as administrator without further designation following his signature. Connaughton v. Bernard, 84 Md. 577 (36 Atl. Rep. 265).

Sec. 341. Sale and conveyance under a power of sale in a will. An executor will be required to exercise a discretionary power of sale in good faith for the benefit of the estate and not for his personal profit. Sneer v. Stutz, 102 Ia. 462 (71 N. W. Rep. 415). A power of sale may be implied when necessary to carry out other express provisions of the will. Corse v. Chapman, 153 N. Y. 466 (47 N. E. Rep. 812).

One who purchases land from an executor having a discretionary power to sell, takes subject to the lien of the debts of the testator. Seeds v. Burk, 181 Pa. St. 281 (37 Atl. Rep. 511). Where the exercise of the power of sale is left subject to the judgment of the executrix named in the will, it cannot be exercised by an administrator appointed, with the will annexed, upon her resignation. Bigelow v. Cady, 171 Ill. 229 (48 N. E. Rep. 974; 63 Am. St. Rep. 230). A conveyance by a surviving executor of a will conferring power to sell who has no other connection with the estate, will be presumed to be in execution of the power though it is not mentioned in the deed. Dick v. Harby, 48 S. C. 516 (26 S. E. Rep. 900). Where the power to sell his real estate is conferred by a testator on such of his executors "as shall qualify and survive," all of such executors who qualify and survive must join in a deed in order to pass title, and the power to do so cannot be delegated from one to the other. Tarlton v. Gilsey, N. J. Eq. (37 Atl. Rep. 467). Under Cal. Code Civ. Proc., § 1561, a sale of real estate by an executor under a power contained in a will, passes no title unless confirmed by the court, except where the will vests the legal title in the executors as trustees. Civ. Code, §§ 847, 857, subds. 1, 2, applied to par

ticular facts which were held not to create such a trust. Bennalack v. Richards, 116 Cal. 405 (48 Pac. Rep. 622).

Sec. 342. Rights as to possession and rents of decedent's realty. Ga. Code, § 2485, construed and applied -right of administrator to sue for possession of real estate. Mayor of Chauncey v. Brown, 99 Ga. 766 (26 S. E. Rep. 763). In Virginia it is held that the rents of a decedent's real estate accruing after his death belong to his heirs. Lightner's Ex'x v. Speck, Va. (28 S. E. Rep. 326). In Florida, prior to the adoption of the Rev. Stat. 1892, an administrator could maintain ejectment for lands not exempt belonging to his intestate at the time of his death. But by § 1917 of these Revised Statutes real estate of a decedent descends to the heir or devisee, and remains in his possession until the administrator or executor takes possession of or sells same under an order of court for the payment of debts, or until the land is sold under execution by a creditor of the

decedent. Rose v. Withers, 39 Fla. 460 (22 So. Rep. 724). Sureties on an administrator's bond are not liable for his misappropriation of rents collected by him which belong to the widow and heirs of his decedent. Denton v. Crouch,

Ky. (41 S. W. Rep. 277). Nor for the proceeds of the sale of land in a foreign state under a power conferred by the will, where such will had never been probated in such state. Emmons v. Gordon, 140 Mo. 490 (41 S. W. Rep. 998; 62 Am. St. Rep. 734).

Sec. 343. Suits by executors and administrators. An executor who has no title or interest in his decedent's real estate, cannot maintain an action to reform his title deed. Thiefes v. Mason, 55 N. J. Eq. 456 (36 Atl. Rep. 946). Executors may sue for injuries done to their decedent's realty in his life time. Lake Roland El. Ry. Co. v. Frick, 86 Md. 259 (37 Atl. Rep. 650). An action, under Ala. Code 1886, § 3296, for the wrongful cutting of trees from the land of a decedent after the appointment of an administrator, cannot be maintained by him, but the right of action is in the heirs. Louisville & N. R. Co. v. Hill, 115 Ala. 334 (22 So. Rep. 163). Under the statutes of Missouri, an administrator cannot sue to set aside a foreclosure sale of his decedent's real estate on account of fraud. Thorp v. Miller, 137 Mo. 231 (38 S. W. Rep. 929).

Sec. 344. Sale to pay debts. A decedent's equitable title to real estate may be sold to pay his debts. Howell v. Jump, 140 Mo. 441 (41 S. W. Rep. 976). If a deficiency in the personal assets of an estate has been caused by maladministration or devastavit, a sale should not be ordered. Spear v. Banks, 114 Ala. 323 (21 So. Rep. 834). But a depreciation in value of personal assets, which were originally sufficient to pay the indebtedness of an estate, occurring during the delay of an adminstrator in their application to the payment of debts exercised by him in good faith, does not deprive him of the right to resort to a sale of real estate. Pearson v. Gillenwaters, 99 Tenn, 446 (42 S. W. Rep. 9; 63 Am. St. Rep. 844); 99 Tenn. 462 (42 S. W. Rep. 199). An executor, who by his delay has lost his right to enforce a

lien against his decedent's real estate for a balance due him, cannot have the land sold to pay the same. Battersby v. Castor, 181 Pa. St. 555 (37 Atl. Rep. 572). Where a decedent leaves a surviving widow, an unconditional sale of his real estate to pay debts should not be ordered until her dower has been assigned, unless she has elected to take the value of her dower in money. McKittrick v. McKittrick, 43 W. Va. 117 (27 S. E. Rep. 303). When a deficiency of personal assets exists it is not necessary to wait until they are actually applied before land can be sold. Pearson v. Gillenwaters, 99 Tenn. 446 (42 S. W. Rep. 9; C3 Am. St. Rep. 844); 99 Tenn. 462 (42 S. W. Rep. 199).

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Sec. 345. Sale to pay debts-Petition and parties. A statement in the petition that the condition of the property was fair," where a statement of the condition of the property is required, is sufficient to sustain an order of sale upon a collateral attack. In re Devincenzi's Estate, 119 Cal. 498 (51 Pac. Rep. 845). A judgment creditor exercising his right under Wash. Code Proc., § 1014, to apply for an order of sale to pay debts, is required to make the same allegations in his petition as an executor or administrator would be required to under § 1005. Prefontain v. McMicken, 16 Wash. 16 (47 Pac. Rep. 231). For particular case as to sufficiency of description of land sought to be sold, see Macmanus v. Orkney, 91 Tex. 27 (40 S. W. Rep. 715). Creditors of a decedent are not necessary parties. Rawls v. Carter, 119 N. C. 596 (26 S. E. Rep. 154). A purchaser of land from the widow and heirs of an intestate is a proper party defendant. Ala. Code, § 2106, construed and applied. Spear v. Banks, 114 Ala. 323 (21 So. Rep. 834).

Sec. 346. Sale to pay debts-Laches and statute of limitations. The right of creditors or of an administrator to subject the lands of the decedent to the payment of his debts, may be lost by laches; but where an heir of the decedent is administrator, he cannot take advantage of his own laches in order to protect his interest in the land from the payment of the debts of the estate. Brogan v. Brogan, 63 Ark. 405 (39 S. W. Rep. 58; 58 Am. St. Rep. 124). Under

Ind. Rev. Stat. 1894, § 2487, proceedings by an administrator to sell lands fraudulently conveyed by his decedent must be brought within five years after the decedent's death. Galentine v. Brubaker, 147 Ind. 458 (46 N. E. Rep. 903).

Sec. 347. Sale to pay debts-Practice. A court need not hear proof of the allegations of the petition where their truth appears from the papers on file in the case and they are not denied by any one. In re Brannan's Estate Cal.

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(51 Pac. Rep. 320). In a proceeding by the administrator to sell real estate to make assets, defendants to the action may show facts which tend to establish that it is not necessary to resort to the real estate of the decedent in order to have sufficient funds to pay his debts. Person v. Montgomery, 120 N. C. 111 (26 S. E. Rep. 645). A decedent's heirs at law may resist a petition to sell his land for the payment of his debts, by insisting upon a proper application of personal property to that purpose, which the administrator wrongfully refuses to inventory. Duffield v. Walden, 102 Ia. 676 (72 N. W. Rep. 278). Where a probate court orders the sale of a decedent's homestead to pay debts, the remedy is by appeal and not by a direct proceedings attacking the judgment. Sigmond v. Bebber, 104 Ia. 431 (73 N. W. Rep. 1027). Proceedings by a judgment creditor of a decedent to enforce payment of his judgment must be perfected while the lien exists. Hansen's Empire Fur Factory v. Teabout, 104 Ia. 360 (73 N. W. Rep. 875). An administratrix, who seeks to have the lands of her deceased husband sold to pay a claim alleged to be due to her on account of a loan to her husband, has the burden of proof. In re Martin's Estate, 181 Pa. St. 378 (37 Atl. Rep. 561). Cal. Code Civ. Proc. § 1552, appliedobjection which should be considered upon confirmation. In re Brannan's Estate, Cal. (51 Pac. Rep. 320). Minn Gen. Stat. 1894, § 4598, construed and applied-expiration of license to sell-power of probate court to issue a new license. Harrison v.Harrison, 67 Minn.520 (70 N. W. Rep. 802).

See. 348. Title and rights of purchaser at an administrator's sale. An administrator's sale of lands to pay debts is a judicial sale, and the doctrine of caveat emptor applies to

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