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Unless restrained by statute, the personal representative has the same power to mortgage and pledge the personal assets of the estate as he has to dispose of them by sale.25 As to the personal representative personally, he has no authority to dispose of any of the personal assets except for purposes properly connected with the administration of the estate; but a purchaser or pledgee who takes the property in good faith and for value is not required to know the facts, and the transaction will be sustained although the representative sell or pledge the assets for some other purpose.26 But where the purchaser or pledgee has knowledge of the perversion of the property to other purposes than those of the estate, or of the intended perversion of the proceeds, the property acquired by the purchaser or pledgee with knowledge of the disregard of the personal representative of the obligations of his trust, may be followed into his hands and recovered. The law exacts the most perfect good faith from all parties dealing with a trustee in regard to trust property.27

§ 1464. The Same Subject: Statutory Regulations.

The rule of the common law as to the power of an executor or administrator to sell and dispose of personal

321; Powers v. Powers, 48 How. Pr. (N. Y.) 389.

25 Scott v. Tyler, 2 Dick. 712; Vane v. Rigdon, L. R. Ch. App. 663; Smith v. Ayer (First National Bank), 101 U. S. 320, 25 L. Ed. 955; Shaw v. Spencer, 100 Mass. 382, 392, 97 Am. Dec. 107, 1 Am. Rep. 115; Smith v. Second National Bank, 169 N. Y. 467, 62 N. E. 577.

26 Jelke v. Goldsmith, 52 Ohio St. 499, 514, 49 Am. St. Rep. 730, 40 N. E. 167; Hemmy v. Hawkins, 102 Wis. 56, 60, 72 Am. St. Rep. 863, 78 N. W. 177.

27 Smith v. Ayer (National Bank), 101 U. S. 320, 25 L. Ed. 955; Thomasson v. Brown, 43 Ind. 203; Johnson v. Payne & Williams Bank, 56 Mo. App. 257, 263.

property has been modified by statute in many jurisdictions. Such statutes vary: In some states no sale can be made without an order of court.28 In some jurisdictions, however, the statutory provision regarding the securing of an order of court for the sale of personal property is merely directory and not mandatory; if such an order is secured the personal representative is protected from liability, but such an order does not lend any additional validity to a sale made in good faith and for value and regarding which no objection can be raised.29 In some jurisdictions the manner in which the sale may be made is regulated by statute and the personal representative is authorized to make a sale without an order of court provided he conforms to the statutory regulations.30 A testator in his will, however, irrespective of the statute, may grant to the executor the power to sell, mortgage, pledge or otherwise dispose of any and all of his personal estate, and this vests in the executor the power so to do without an order of court. Any disposition of the property will therefore be made under the power

28 Waring v. Lewis, 53 Ala. 615; In re McIntire Estate, 1 Alaska 73; Winningham v. Holloway, 51 Ark. 385, 11 S. W. 579; Matter of Radovich, 74 Cal. 536, 5 Am. St. Rep. 466, 16 Pac. 321; Poullian v. Brown, 82 Ga. 412, 9 S. E. 1131; Brooks v. Bergner, 83 Md. 352, 35 Atl. 98; Weider v. Osborn, 20 Ore. 307, 25 Pac. 715; Redfearn v. Craig, 57 S. C. 534, 35 S. E. 1024; Altgelt v. Alamo National Bank, 98 Tex. 252, 83 S. W. 6.

29 Clark V. Blackington, 110 Mass. 369; Edney v. Baum, 70

Neb. 159, 97 N. W. 252; Sherman
v. Willett, 42 N. Y. 146; Mead v.
Byington, 10 Vt. 116; Williams v.
Ely, 13 Wis. 1.

30 Richley v. Childs, 114 Ill. App. 173 (sale must be made at public sale under the Illinois statute).

See, also, Citizens Street R. Co. v. Robbins, 128 Ind. 449, 25 Am. St. Rep. 445, 12 L. R. A. 498, 26 N. E. 116; Lappin v. Mumford, 14 Kan. 9; Chandler v. Stevenson, 68 Mo. 450.

and not by reason of any authority conferred by law or order of the probate court.31

§ 1465. Real Property Liable for Decedent's Debts When the Personalty Is Insufficient.

The rule of the common law was that the title to and the right of possession of the real property of a decedent descends and vests upon his death immediately in his heir, the realty being charged only with specialty debts or those of record, the heir not being liable for the simple contract debts of the decedent, and his liability for specialty debts was limited to the value of the land. By statute, however, real property, both in England and in the United States, is made liable for the debts of the decedent,32 although the personalty must first be resorted to for the payment of the same.33

The rule today in England by statute is that lands of a decedent vest in the personal representative the same as chattels, and this includes realty over which the decedent. had a general power of appointment. Administration is had over the estate of a decedent when the same consists of realty only, the personal representative taking charge of the realty for the purposes of administration, with the same rights, duties and liabilities as in the case of personal property except in the matter of sale and disposition. The real property, however, is subject to liability for the payment of the debts of the decedent if the per82 See §§ 782, 783, 1182.

31 McCollum v. McCollum's Exr., 33 Ala. 711; Matter of Durham, 49 Cal. 490; Jackson v. Williams, 50 Ga. 553.

Compare: Brooks v. Bergner, 83 Md. 352, 35 Atl. 98.

83 See §§ 784, 785, 1182.

As to charges by a testator in his will for the payment of debts and legacies, see §§ 782-812.

sonalty is insufficient for that purpose. This is likewise the general rule in the United States.34

§1466. The Same Subject: Distinction Between Debts of Decedent and Expenses of Administration.

There is a distinction, however, between the debts of the decedent and the expenses of administration. The statute may authorize the administrator to sell real estate, when the personalty is insufficient, to pay the debts of the decedent, an allowance made for the support of the family, and the expenses of administration which include costs, attorney fees and commissions to the representative. Where the statute authorizes a sale of the realty for the purpose only of paying the debts of the decedent, a sale of the realty for the sole purpose of paying the expenses of administration is not authorized; this rule, however, applies only in those jurisdictions where the title to the real property vests immediately in the heir upon the death of the ancestor, and not in those jurisdic

34 See §§ 1183, 1288.

See, also, Griffith v. Rudisill, 141 Ala. 200, 37 So. 83; Collins v. Paepcke-Leicht Lumber Co., 74 Ark. 81, 84 S. W. 1044; Ryer v. Fletcher-Ryer Co., 126 Cal. 482, 58 Pac. 908; Burr v. Bloemer, 174 Ill. 638, 51 N. E. 821; Moore v. Moore, 155 Ind. 261, 57 N. E. 242; Herriott v. Potter, 115 Iowa 648, 89 N. W. 91; Stewart v. Rogers, 71 Kan. 53, 80 Pac. 58; Seldner v. Katz, 96 Md. 212, 53 Atl. 931; Fleming v. McCutcheon, 85 Minn. 152, 88 N. W. 433; Ashley v. Young, 79 Miss. 129, 29 So. 822; Emmons v. Gordon, 140 Mo. 490,

62 Am. St. Rep. 734, 41 S. W. 998; Tunnicliff v. Fox, 68 Neb. 811, 94 N. W. 1032; Lippincott v. Smith, 69 N. J. Eq. 243, 60 Atl. 330; Matter of Summers, 37 Misc. Rep. (N. Y.) 575, 75 N. Y. Supp. 1050; Matter of Richmond, 168 N. Y. 385, 61 N. E. 647; Carr v. Hull, 65 Ohio St. 394, 87 Am. St. Rep. 623, 58 L. R. A. 641, 62 N. E. 439; State v. O'Day, 41 Ore. 495, 69 Pac. 542; Jennings v. Parr, 62 S. C. 306, 40 S. E. 683; Read v. Franklin (Tenn.), 60 S. W. 215; Carlton v. Goebler, 94 Tex. 93, 58 S. W. 829; Bishop v. Locke, 92 Wash, 90, 158 Pac. 997.

tions where by statute the title to the real property vests in the executor or administrator the same as personalty.35

§ 1467. Interests in Mortgages, Leaseholds, and Contracts of Sale and Purchase of Realty, How Considered.

As to mortgages, the modern rule is that prior to foreclosure the interest of a mortgagee in a mortgage and in the indebtedness secured is, like other choses in action, a personal estate, and such interest vests in the executor or administrator upon the death of the mortgagee. The rule is the same although the mortgage be in the form of a deed absolute on its face, but in fact intended as a mortgage. 37 And the interest of the mortgagor is consid

35 Mays v. Rogers, 52 Ark. 320, 12 S. W. 579; Walker v. Diehl, 79 Ill. 473; Dean v. Dean, 2 Mass. 150; Drinkwater v. Drinkwater, 4 Mass. 354; Moore v. Ware, 51 Miss. 206; Fitch v. Witbeck, 2 Barb. Ch. (N. Y.) 161; Walworth v. Abel, 52 Pa. St. 370.

Under the Ohio statute which reads: "As soon as an administrator shall ascertain that the personal estate in his hands will be insufficient to pay all the debts of the deceased, with the allowance to the widow and children for their support, twelve months, and charges of administration of the estate, he shall apply to the Probate Court or the court of Common Pleas for authority to sell the real estate of the deceased," it was held that the proper construction is that sufficient of the lands may be sold to pay charges of administration where it is nec

essary to make a sale for the payment of the debts of the deceased or the year's allowance, but if the petition for sale does not allege the existence of debts of the decedent but only sets forth charges of administration, the court has no authority to authorize the sale.-Carr v. Hull, 65 Ohio St. 394, 87 Am. St. Rep. 623, 58 L. R. A. 641, 62 N. E. 439.

36 Fehringer v. Martin, 22 Colo. App. 634, 126 Pac. 1131.

See § 256.

As to the effect of a mortgage upon lands specifically devised, see § 747.

As to the liability of mortgaged property for the mortgage debt, when such property is specifically devised, under the common law and the modern rule, see §§ 794797.

37 Williams v. Williams, 270 Ill. 552, 110 N. E. 876.

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