13. The officer as such has no power to bind the estate by contract, and his attempt at such a contract will bind himself only, or no one. The fact that he added the word "executor" or "administrator" to his written promise, or made the contract as such officer will not relieve him. He can only relieve himself from personal responsibility by limiting his promise to the assets of the

estate.

A judgment or decree against him in his official capacity upon a demand created by him during the settlement of the estate binds him personally. But the estate alone is bound on a cause of action created by the deceased.

14. In the absence of a statute authorizing it, the officer has no power to sell or mortgage the real estate. But in nearly all of the states such a power is conferred by statute for the purpose of paying the debts, and often for the purpose of paying legacies.

These statutes provide that in case of a deficiency of personal property the court may authorize the sale or mortgage of so much of the real estate as may be necessary to provide for the deficiency. These statutes usually require, first, a petition showing the necessity; second, a special bond from the officer to cover the proceeds of the sale; third, a formal sale, usually a public one; fourth, the execution of a proper deed under the direction of the court, and fifth, a proper disposition of the money derived from such sale.

The jurisdiction to order the sale of real estate is purely statutory, and in order that valid title may pass

it is essential that the court should have acquired jurisdiction and that all the requisites of the statute shall be substantially complied with. But there are many irregularities which will suffice to set aside such a sale if raised by appeal or a direct proceeding for that purpose, which will not suffice if the sale is attacked collaterally. The majority of the courts in this country hold that if the court had jurisdiction and notice was given to parties interested, the proceedings cannot be attacked collaterally for irregularities or for a failure to observe those requirements which were evidently not designed for the essential protection of the parties in interest.

In a few States where probate courts are held to be courts of inferior and limited jurisdiction, it is held that every fact prescribed by the statute to authorize the order of sale must affirmatively appear.

The period within which such order may be granted is usually fixed by statute; where no statute exists the application must be made within a reasonable time, and at all events before the statute of limitations has operated.

15. The officer will not be permitted directly or indirectly to buy at his own sale, and if he does the sale may be set aside.

The rights of creditors take precedence over those of devisees or legatees, and therefore all of the real estate, whether devised or not, may be sold under these statutes to pay debts. But legacies have necessarily no priority over devises, and lands devised will not be sold to pay legacies, except where the devise is of the residue after

the payment of debts and legacies, or where the land is charged with the payment of legacies.

Sec. 1044. CONCERNING THE LIABILITY OF THE OFFICER.-The liability of the officer, as such, may arise, (a) from the acts of the deceased, or (b) from his own acts.

(a) Extent of Liability for Acts of Deceased. To the extent of the assets the officer is liable for all the debts and contracts of the decedent upon which actions were or might have been brought in his life time, excepting only those contracts founded upon purely personal considerations.

1. The same rules govern the survival of actions against the representative, which govern the survival of actions in his favor. The liability of the officer extends only to the valid contracts and debts of the deceased, and the representative has no authority to make contracts for him or to ratify his invalid transactions.

2. Actions of tort against the deceased, like those in his favor, die with him, at common law. But the same statutes which make them survive in his favor, usually make them survive against him.

3. Where two or more are jointly indebted and one dies, the action at common law is to be brought against the survivor or survivors only. If the action is on a joint obligation, and one of the plaintiffs dies, the action proceeds by the survivor only. But if the action is upon an obligation which was joint and several, the representative of the deceased party may be brought in.

4. The representative is bound upon those covenants

of the deceased concerning real estate which were not personal to himself or terminated by his death. Thus, to the extent of the assets, the representative is bound by the covenants of the deceased in a lease or deed, and by his agreements to buy or sell land, and this whether the breach occurred before or after the death of decedent. But on covenants implied by law the representative is not bound unless the breach occurred during the life of the deceased.

(b) Officer's liability for his own acts. The officer is personally liable for those acts either of active wrongdoing or of negligence by which the estate suffers loss. He is usually held personally liable upon all causes of action which have arisen since the death of the deceased. When sued for causes of action arising in the life time of the deceased the action is against him in his official capacity. While upon causes of action arising since the death of deceased, he is sued as an individual, except that upon contracts relating to the estate, he may be sued either as an individual or in his representative capacity, if the consideration or cause of the action arose in the life time of the deceased.

Sec. 1045. CONCERNING THE PAYMENT OF DEBTS AND LEGACIES.-It is the primary duty of the officer to pay out of the assets, the legal charges against the estate. Before the claims of the general creditors can be considered there are usually three classes of claims given precedence by statute, these are: 1. The allowance made for the support of the

widow and minor children of the decedent. 2. Funeral expenses. 3. Expenses of administration.

It is the duty of the officer, if there are assets, to bury the deceased in a manner conforming to his estate, and the expenses incurred may be properly chargeable as an expense of administration. In some States such expenses are classed with the general debts, though often given precedence, and in such cases would yield priority to the other expenses of administration.

If the assets exceed the amount required for the payment of these classes of claims, then the general debts of the deceased are to be paid. As to these the statutes in the various States establish different orders of priority. Usually, the funeral expenses come first, and with them, frequently, the expenses of the last sickness; then debts due the government, as public rates and taxes; next judgments and debts due upon specialties, and in some States, the debts due to laborers and for rent, and finally the general debts of the deceased due to all other persons.

In case of a deficiency of assets the officer will render himself personally liable by paying a debt of inferior rank without reserving enough to pay those of a superior rank. And in case of a deficiency of assets, all debts of the same rank share ratably, that is, they abate ratably.

Public notice is required to be given by the administrator or executor, that creditors may present their

*Rev. Stat. of Ohio, Sec. 6090; McClellan v. Filson, 44 O. S. 184.