the estate beyond his ability to pay, for to that extent only does he by his appointment receive money from himself belonging to the estate. 8 Estate of Walker, 125 Cal. 242, 73 Am. St. Rep. 40, 57 Pac. 991; Sanchez v. Forster, 133 Cal. 614, 65 Pac. 1077; Estate of Thomas, 140 Cal. 397, 73 Pac. 1059; State ex rel. McClamrock v. Gregory, 119 Ind. 503, 22 N. E. 1; Buckel V. Smith's Admr., 26 Ky. L. Rep. 991, 82 S. W. 1001; Sanders v. Dodge, 140 Mich. 236, 112 Am. St. Rep. 399, 103 N. W. 597; McCarty v. Frazer, 62 Mo. 263; Howell v. Anderson (In re Howell), 66 Neb. 575, 61 L. R. A. 313, 92 N. W. 760; Harker v. Irick, 10 N. J. Eq. 269; Rader v. Yeargin, 85 Tenn. 486, 3 S. W. 178; Lyon v. Osgood, 58 Vt. 707, 7 Atl. 5. The rule in Massachusetts is that if the administrator is solvent at the time of his appointment or at any time during the administration of his office, he should be required to pay over in cash the amount of his antecedent debt to the decedent.-Tarbell v. Jewett, 129 Mass. 457. Where the statute declares that no executor or administrator shall be held to account for debts which remain uncollected without any fault on his part, the sureties on the bond of an administrator who was insolvent and unable to pay a debt he owed the decedent are not liable for the amount of the debt.-Sanders v. Dodge, 140 Mich. 236, 112 Am. St. Rep. 399, 103 N. W. 597. A debt due from an insolvent administrator is not considered money in hand for all purposes; for example, on an application for order to sell real estate to pay debts it is no answer that the administrator has money in hand when it consists merely of a debt due to the decedent from himself. -Matter of Georgi, 21 Misc. Rep. 419, 47 N. Y. Supp. 1061. not Sureties on the bond of an insolvent administrator are liable for a debt due by him to the decedent, nor is a finding in the decree of distribution that such debt is money in the administrator's hands conclusive against the sureties.-Baucus v. Barr, 107 N. Y. 624, 13 N. E. 939. Sureties of an insolvent administrator are not liable for debts due by him to the decedent, as they do not agree to augment the estate, but to insure against waste or default. If he does not pay his debt there is no default or deficiency, since he has all that has come into his hands and, being insolvent, he can not make something out of nothing.-Matter of Piper's Estate, 15 Pa. St. 533. An executor or his sureties should not be charged for the executor's personal debt to the dece The argument is that sureties on the bond should not be considered as guarantors of a debt owed by the principal to the decedent when he is insolvent and unable to pay. Yet on the other hand it is said that the liability of a surety is co-extensive with that of the principal and that a decree of the probate court which binds the principal will, in the absence of fraud or collusion, bind the surety. It has therefore been held that where an executor has been charged, upon the settlement of his account, with a personal debt which he owed the deceased, whether by virtue of a statute or without a statute, the sureties on his bonds are liable for the payment thereof and the executor's insolvency or inability to pay has no defense.* In this connection, however, the decision of the court will be affected by the manner in which the controversy arises. The general rule is that an executor or administrator and his sureties are bound by the final decree of the probate court in settling his account, and if the probate court finds the debt due from the executor or administrator to dent beyond his actual ability to pay it, for only to that extent does he by his appointment receive money belonging to the estate.Lyon v. Osgood, 58 Vt. 707, 7 Atl. 5. 4 United Brethren v. Akin, 45 Ore. 247, 2 Ann. Cas. 353, 66 L. R. A. 654, 77 Pac. 748; Judge of Probate v. Sulloway, 68 N. H. 511, 73 Am. St. Rep. 619, 49 L. R. A. 347, 44 Atl. 720. In Massachusetts the general rule is that sureties are bound for the debts of an insolvent administrator due to the deceased. Stevens v. Gaylord, 11 Mass. 256, 269; Winship v. Bass, 12 Mass. 199. But an administrator, as be tween himself and those beneficially interested in the estate, must account for a debt due from himself to the decedent. He can not sue himself nor collect the debt except by crediting it in his account. He is therefore estopped to deny the collection of the debt, but such estoppel shall not be taken as a substantial fact from which other facts may be inferred. -Kinney v. Ensign, 18 Pick. (Mass.) 232. the decedent as cash on hand, the decree settling the final account is not subject to collateral attack and, unless reversed by a direct attack on appeal, will be conclusive against the executor or administrator and his sureties in a separate action against them on the administration bond. The inability of the executor or administrator to pay the debt should be shown in the probate court, if the matter first arises there." §1364. Bond to Pay All Debts and Legacies. In some jurisdictions by statute the executor or administrator may give a bond to pay all debts and legacies. This character of bond is authorized because of his interest in the estate and relieves him of the necessity of filing an inventory or account. Upon giving such a bond the executor or administrator and his sureties become liable to the full amount named in the bond, for the payment of all the debts and legacies, irrespective of the value of the assets of the estate. When such a bond is given the rule is that the real estate, although subject to the rights of creditors for the satisfaction of their debts, can not be sold by the executor or administrator for the purpose of paying debts or legacies except where a testate decedent in his will specially charged the payment of debts 5 See United Brethren v. Akin, 45 Ore. 247, 2 Ann. Cas. 353, 66 L. R. A. 654, 77 Pac. 748, and cases there reviewed. Where it has once been litigated and adjudicated that an administrator was indebted to the decedent and is chargeable with the debt as assets, he can not be heard to litigate the question over again. -James v. West, 67 Ohio St. 28, 65 N. E. 156. 6 McKennan's Appeal, 27 Pa. St. 237. In the absence of proof of mismanagement or misappropriation of the assets of the estate, the executor who gives a bond to pay all debts and legacies is not required to file an account.-Tilton v. Tilton, 70 N. H. 325, 47 Atl. 256. or legacies upon his real estate or some specific parcel thereof, and then the real estate is so burdened only to the extent that the testator directs." A creditor who has duly proved his claim may, upon failure of the executor or the administrator to satisfy the same at the proper time, institute proceedings upon the bond. And where an executor who is also a residuary legatee executes such a bond, both he and his sureties become absolutely liable to the extent of the penalty of the bond, and if a specific legacy is not paid when due, the legatee may, without obtaining an order of allowance from the probate court, maintain an action for the recovery of such legacy against the sureties on the bond." § 1365. Letters Testamentary or of Administration. After one has been appointed executor or administrator by the court and has given the bond required in the order of appointment and has taken the oath of office, he is entitled to letters testamentary or of administration issued under the authority and seal of the court. An executor or administrator should have some indicia of his authority in dealing with third persons. This is necessary when he institutes an action in his representative capacity and is called upon to show his authority.10 This is established by letters testamentary or of administration issued to him under the seal of the court. Authority to act as executor or administrator can not be established by parol. The purpose of the seal is to authenticate the letters and show that they actually emanated from the 7 Thayer v. Winchester, 133 Mass. 447, 449. 8 Jenkins v. Wood, 140 Mass. 66, 2 N. E. 780. 9 Kreamer v. Kreamer, 52 Kan. 597, 35 Pac. 214. 10 See 1344. 11 Godolph, pt. 2, ch. 30, § 5. court; but where the letters recite that the seal is affixed, and they are otherwise in proper form and duly attested and had been repeatedly recognized in court, the omission of the seal should not impair the effect of such letters when collaterally attacked.12 § 1366. Will of 'Testator Can Not Override Statute Requiring Letters. In some jurisdictions by statute provision is made for the settlement of estates without the intervention of the probate court. Such statutes are special and apply only to the particular cases which they cover in the jurisdictions wherein they have been enacted.18 Where the laws of the jurisdiction provide for the issuance of letters testamentary or of administration and for the administration of estates by an executor or administrator, a provision of a will that the executor named shall manage and control the estate and hold and distribute the same without going into court or taking out letters testamentary is violative of public policy as expressed by the statutes and is of no force or effect.14 § 1367. Decree of Probate Court Not Subject to Collateral Attack. Where letters testamentary or of administration have been granted by the court or judge having probate jurisdiction, any aggrieved party having an interest in the matter must, if he desires to have the appointment set aside, pursue the course pointed out by statute. One exercising probate jurisdiction, whether designated as 12 Dennis v. Bint, 122 Cal. 39, 68 Am. St. Rep. 17, 54 Pac. 378. 13 See § 1287. 14 Sevier v. Woodson, 205 Mo. 202, 120 Am. St. Rep. 728, 104 S. W. 1. |