Where the debtor of an estate becomes the administrator thereof and includes his debt in the inventory as an asset, this does not affect his individual relationship as debtor to the estate, and he is chargeable with interest until it is shown that the debt is paid and that the amount of the debt is in his hands as administrator.21

§ 1487. Equitable Assets: Liability of Sureties as to Proceeds of Sale of Realty.

Where the proceeds of the sale of real property come into the hands of the personal representative for the purposes of administration, they constitute equitable assets in his hands, being in the nature of a trust fund.22 There is a conflict, however, as to the liability of the sureties on his bond for any loss or misappropriation of such assets, the liability depending principally upon the wording of the bond. In some jurisdictions the obligation imposed by the bond is altogether legal and the sureties can not be liable for any other breach than that of the legal duties of the personal representative embraced by the condition of the bond. If the bond is conditioned only for the faithful administration of the legal assets, or of the goods, chattels and credits of the testator, the proceeds of the sale of land, if charged with the payment of debts, are equitable assets and the sureties are not liable therefor to the creditors.23

21 Rodenbach's Appeal, 102 Pa. St. 572.

22 Clay v. Hart, 7 Dana (37 Ky.) 1; Speed's Exrs. v. Nelson's Exr., 8 B. Mon. (47 Ky.) 499; Costigan v. Kraus, 158 Ky. 818, Ann. Cas. 1915D, 115, 166 S. W. 755.

23 People v. Huffman, 182 Ill.

390, 55 N. E. 981; Clay v. Hart, 7 Dana (37 Ky.) 1; White v. Ditson, 140 Mass. 351, 54 Am. Rep. 473, 4 N. E. 606; Francisco v. Wingfield, 161 Mo. 542, 61 S. W. 842; Probate Court v. Hazard, 13 R. I. 1, 3.

Where the bond is conditioned that the executor will "well and truly pay and deliver all legacies contained and specified in the said will, as far as said goods and chattels will extend, according to the value thereof, and as the law will charge him," it is held that the condition is that the executor will pay the legacies, not only as far as the goods, chattels and credits will extend, but as far as the law charges him; and inasmuch as the law charges him with money arising from the sale of land charged with the payments of legacies, his sureties will be responsible for money so received.24 In those jurisdictions, however, where the bond is conditioned that the executor or administrator shall faithfully perform the duties of his office, the sureties on such bond are liable for any loss or misappropriation due to the misconduct of their principal, whether regarding the proceeds of the sale of real property or otherwise.25

Since the personal representative is not authorized to sell real estate except under the conditions prescribed by statute or when so empowered by the provisions of the testator's will, the statutes of the various jurisdictions often prescribe for an additional bond when a sale of real property is made under order of court. Where such additional bond is given, the sureties are of course liable for any misappropriation of the proceeds of the sale by the personal representative. The question which arises, however, is whether the sureties on the original bond are also liable. If the original bond does not make the sureties liable for the misappropriation of the proceeds of the

24 Moore v. Waller's Heirs, 1 A. K. Marsh (8 Ky.) 488, 491; Costigan v. Kraus, 158 Ky. 818, Ann. Cas. 1915D, 115, 166 S. W.

25 Evans v. Gerken, 105 Cal. 311, 313, 38 Pac. 725. See, also, Hughlett v. Hughlett, 5 Humph. (24 Tenn.) 453.

sale of real property by the personal representative, they would naturally not be liable where a further bond is required in order that the representative may make the sale. If the original bond is conditioned to cover all acts of the personal representative in connection with the duties of his office, there is no reason why they should be relieved because an additional bond is given upon the sale of realty. The purpose of the additional bond is to give further security and to strengthen the original security because of the increased possibility of loss.28

§ 1488. Claim for Damages for Death by Wrongful Act, How Considered.

At common law neither the heirs, next of kin, devisees, legatees, nor personal representative of a deceased person had any right of action for damages against one causing the death of the decedent by wrongful act, as the right of action died with the injured party.27 If death did not immediately follow the wrongful act of another, the dam

26 Lacoste v. Splivalo, 64 Cal. 35, 40, 30 Pac. 571; Evans v. Gerken, 105 Cal. 311, 314, 38 Pac. 725.

As to additional bonds, see § 1352.

27 Osborn v. Gillett, L. R. 8 Exch. 88; City of New Orleans v. Abbagnato, 62 Fed. 240, 10 C. C. A. 361, 26 L. R. A. 329; Dueber v. Northern Pac. R. Co.,. 100 Fed. 424; Swift & Co. v. Johnson, 138 Fed. 867, 71 C. C. A. 619, 1 L. R. A. (N. S.) 1161; Stewart v. Baltimore etc. R. Co., 168 U. S. 445, 42 L. Ed. 537, 18 Sup. Ct. 105; Burk v. Arcata etc. R. Co., 125

Cal. 364, 73 Am. St. Rep. 52, 57 Pac. 1065; Louisville etc. R. Co. v. Jones, 45 Fla. 407, 34 So. 246; Bligh v. Biddeford etc. R. Co., 94 Me. 499, 48 Atl. 112; Hudson v. Lynn etc. R. Co., 185 Mass. 510, 71 N. E. 66; McKeering v. Pennsylvania R. Co., 65 N. J. L. 57, 46 Atl. 715; Gmaehle v. Rosenberg, 83 App. Div. (N. Y.) 339, 82 N. Y. Supp. 366; Meekin v. Brooklyn Heights R. Co., 164 N. Y. 145, 79 Am. St. Rep. 635, 51 L. R. A. 235, 58 N. E. 50; Haughey v. Pittsburg Rys. Co., 210 Pa. St. 367, 59 Atl. 1112.

ages for the loss of services and the expenses for medical attendance, and the like, might be recovered.28 These matters, however, are now generally covered by statute, but are of interest in connection with the question as to the extent that a claim for damages for death by wrongful act may be considered an asset of the estate, and as property within a particular state so as to confer jurisdiction upon the probate court therein to issue letters of administration upon the decedent's estate. The general rule is that the law of the state where the injury occurred controls as to who, if any one, is entitled to bring the action.29 Being purely statutory, the right of action vests only in those designated by statute. If only in the heirs or next of kin of the decedent, the personal representative has no right of action except that the statute may allow him to sue under certain circumstances, but in such a case he is merely the statutory trustee to recover damages for the benefit of those entitled thereto, and any money recovered does not belong to the estate.30

28 Matz v. Chicago etc. R. Co., 85 Fed. 180; Eden v. Lexington etc. R. Co., 14 B. Mon. (53 Ky.) 204; Brennan v. Standard Oil Co., 187 Mass. 376, 73 N. E. 472; Ferguson v. Delaware etc. Tel. Co., 71 N. J. L. 59, 58 Atl. 74; Ohnmacht v. Mt. Morris Elec. Light Co., 66 App. Div. (N. Y.) 482, 73 N. Y. Supp. 296; Trow v. Thomas, 70 Vt. 580, 41 Atl. 652.

29 Maysville St. R. etc. Co. v. Marvin, 59 Fed. 91, 8 C. C. A. 21; Central R. etc. Co. v. Swint, 73 Ga. 651; Illinois Central R. Co. v. Crudup, 63 Miss. 291; Missouri III Com. on Wills-29

Pac. Ry. Co. v. Lewis, 24 Neb. 848, 2 L. R. A. 67, 40 N. W. 401.

30 Ruiz v. Santa Barbara Gas & El. Co., 164 Cal. 188, 128 Pac. 330. See, also, Stewart v. Baltimore & Ohio R. Co., 168 U. S. 445, 449, 42 L. Ed. 537, 18 Sup. Ct. 105; Munro V. Pacific Coast Dredging Co., 84 Cal. 515, 18 Am. St. Rep. 248, 24 Pac. 303; Thompson v. Mann, 65 W. Va. 648, 131 Am. St. Rep. 987, 22 L. R. A. (N. S.) 1094, 64 S. E. 920.

A claim for damages for personal injuries to deceased is not an asset of the estate in the ab

§ 1489. The Same Subject: Is Property Within the Jurisdiction Authorizing the Grant of Administration.

But the provision which enables the personal representative of the decedent to sue as plaintiff to enforce the liability for damages is a recognition that the statute is based upon the rights of the decedent; and, the rule of the common law which forbade an action if death ensued, being annulled, the right of the decedent remains to be enforced by his personal representative even though the statute provides a particular mode of distribution different from that of ordinary administration. A claim for damages, therefore, must be regarded as an asset for the purpose of obtaining administration; and where a nonresident is killed within the confines of a state, the statutes of which authorize the personal representative to sue for damages for the wrongful act causing his death, letters of administration upon the estate of such decedent may be issued within the state where the injury occurred, although this claim for damages constitutes the only asset of the estate within the jurisdiction.31

sence of a statute so providing.Carson v. Gore-Meenan Co., 229 Fed. 765.

Under the New Hampshire statute, damages for death by wrongful act, although recovered by the administrator, are not assets of the estate subject to the payment of debts.-Davis v. Herbert (N. H.), 97 Atl. 879.

Under the New York Code of Civil Procedure, damages for death by wrongful act are not assets of the estate. In re Meng, 96 Misc. Rep. 126, 159 N. Y. Supp. 535.

V.

Under the Oregon Employers' Liability Act, an administrator has no authority to settle the death claim. - Franciscovich Walton, 77 Ore. 36, 150 Pac. 261. 31 Southern Pac. Co. v. De Valle Da Costa, 190 Fed. 689, 111 C. C. A. 417; Blagge v. Balch, 162 U. S. 439, 463, 40 L. Ed. 1039, 16 Sup. Ct. 853; Sharp v. Cincinnati etc. R. Co., 133 Tenn. 1, 179 S. W. 375.

See, also, Sargent v. Sargent, 168 Mass. 420, 47 N. E. 121; Walsh v. Boston etc. R. Co., 201 Mass. 527, 88 N. E. 12; Thompson etc. v. Mann, 65 W. Va. 648, 131 Am. St.