must fulfill its terms except where the contract is of a personal nature, such as one which calls for the exercise of personal skill or learning, or involves matters of such a nature as to render their performance incompatible with the settlement of the estate and the general duties of the personal representative.16

If the decedent, during his lifetime, had contracted that another should build a house for him, and the work is uncompleted at the time of his death, his personal representative is bound to fulfill the contract.17 But if the decedent, at the time of his death, had a contract with another whereby the decedent had an interest in the increase of a band of sheep and in the wool produced because of his giving personal care and attention to the matter, the contract terminates at the decedent's death. It is one which the personal representative would not be authorized to fulfill against the consent of the other contracting party.18

by reason of insufficient assets, not arising from their accidental destruction, loss or failure, it afterward appears that he has made an overpayment by mistake, unless the mistake was induced by the fraudulent conduct of the creditor."

16 Matteson v. Dent, 176 U. S. 521, 528, 44 L. Ed. 571, 20 Sup. Ct. 419; Kernochan v. Murray, 111 N. Y. 306, 308, 7 Am. St. Rep. 744, 2 L. R. A. 183, 18 N. E. 868; Chamberlain v. Dunlop, 126 N. Y. 45, 46, 22 Am. St. Rep. 807, 26 N. E. 966; Dickinson v. Calahan's Admrs., 19 Pa. St. 227; Billing's Appeal, 106 Pa. St. 558.

17 Quick v. Ludborrow, 3 Bulst. 29, 30; Janin v. Browne, 59 Cal.

37; Kadish v. Lyon, 229 Ill. 35, 82 N. E. 194; Bambrick v. Webster Groves Presby. Church Assn., 53 Mo. App. 225, 238; Russell v. Buckhout, 87 Hun (N. Y.) 46, 34 N. Y. Supp. 271; Chamberlain v. Dunlop, 126 N. Y. 45, 46, 22 Am. St. Rep. 807, 26 N. E. 966; MacDonald v. O'Shea, 58 Wash. 169, Ann. Cas. 1912A, 417, 108 Pac. 436. 18 Manti City Savings Bank v. Peterson, 33 Utah 209, 126 Am. St. Rep. 817, 93 Pac. 566.

See, also, Smith v. Preston's Estate, 170 Ill. 179, 48 N. E. 688; Marvel v. Phillips, 162 Mass. 399, 400, 44 Am. St. Rep. 370, 26 L. R. A. 416, 38 N. E. 1117.

Edwin Booth's administrator might quite as well have claimed

Where the decedent, during his lifetime, had contracted for the purchase of land, the personal representative is authorized to complete the contract by paying the balance due on the purchase price.19 Where the decedent had acquired an option in his lifetime, it becomes a part of his estate upon his death and his personal representative has. the right to exercise the option.20 And where the decedent, during his lifetime, had purchased stock from another and at such time the seller had agreed to repurchase the stock at the buyer's option, the personal representative of the buyer is entitled to enforce the option.21

§1506. No Authority to Carry on Business of Decedent: Personally Liable on New Contracts.

In the absence of provisions in the will or of an order of court directing the personal representative to continue and carry on the business of the decedent, whatever its character may be, the personal representative has no authority so to do.22 The right, however, to continue the

the right to play Hamlet under a part performed contract of his intestate, or the executor of James Whistler to paint an unfinished painting of his testator.Manti City Savings Bank v. Peterson, supra.

19 Jones v. Hert, 192 Ala, 111, 68 So. 259.

It is the duty of an executor or administrator to perform the terms of the lease executed by the decedent, to the extent of the assets held by him.-Miller v. Ready, 59 Ind. App. 195, 108 N. E. 605.

20 Farley v. Secor, 167 App. Div. (N. Y.) 80, 152 N. Y. Supp. 787.

21 Klein v. Johnson, 191 Mo. App. 453, 178 S. W. 262.

22 Collinson v. Lister, 20 Beav. 356; Griffin v. Bland, 43 Ala. 542; Eufaula National Bank v. Manassas, 124 Ala. 379, 381, 27 So. 258; Matter of Freud's Estate, 131 Cal. 667, 82 Am. St. Rep. 407, 63 Pac. 1080; Hallock v. Smith, 50 Conn. 127; Mathews V. Sheehan, 76 Conn. 654, 100 Am. St. Rep. 1017, 57 Atl. 694; Succession of Sparrow, 39 La. Ann. 696, 2 So. 501; Succession of Hawkins, 139 La. 228, 71 So. 492; McKnight's Exrs. v. Walsh, 23 N. J. Eq. 136; Shipman v. Lord, 58 N. J. Eq. 380, 44

business may be granted the executor by provisions in the decedent's will.23 But even though the personal representative may be authorized by the will to carry on the decedent's business, the general rule is that, unless he is proceeding as a trustee under the direction of a court of equity, the executor is liable personally for all new contracts entered into by himself, even though entered into in his representative capacity.24

The rule that the personal representative can not carry on the business of the decedent does not require him to immediately close up the decedent's affairs. Where the decedent is bound by a contract yet uncompleted and which binds the estate, it is the duty of the personal representative to complete such contract. And the representative is justified in incurring reasonable liabilities where the same are necessary for the protection of the estate and for its benefit, and which permit the representative to more advantageously wind up the business.25 If the business of the decedent is bequeathed to one who desires to continue the same, the executor does not render himself personally liable for new contracts made by the legatee in conducting the business unless the executor, by his own actions, estops himself from denying liability.26 But if enlarging any business.-Alexander v. Herring, 99 Miss. 427, 55 So. 360.

An administrator is liable to the estate for the amount of funds invested by him in violation of the directions of the will. In re Horwitz's Estate, 90 Misc. Rep. (N.Y.) 249, 154 N. Y. Supp. 316.

25 Garrett v. Noble, 6 Sim. 504; Collinson v. Lister, 20 Beav. 356; Matter of Fernandez's Estate, 119 Cal. 579, 51 Pac. 851; Matter of Freud's Estate, 131 Cal. 667, 82 Am. St. Rep. 407, 63 Pac. 1080; Succession of Wiemann, 112 La. 293, 36 So. 354; Merritt's Estate v. Merritt, 62 Mo. 150; Cornwell v. Deck, 2 Redf. (N. Y.) 87, 88; Gilman v. Wilber, 1 Demarest (N. Y.) 547, 13 Abb. N. C. 67; Pitts v. Jameson, 15 Barb. (N. Y.) 310; In

re Semple's Estate, 189 Pa. St. 385, 42 Atl. 28.

An administrator of an estate has no authority to continue a mercantile business carried on by the decedent, except under order of the court to such an extent as will enable him to dispose of the stock to advantage. For that purpose he may incur indebtedness. to obtain the necessary merchandise to sell the property to a better advantage. Gordon-Tiger Mining etc. Co. v. Loomer, 50 Colo. 409, 115 Pac. 717.

26 American Tube Works V. Tucker, 185 Mass. 236, 70 N. E. 59; Fleming v. Fleming, 204 Pa. St. 648, 54 Atl. 473.

An executor who permits an heir to carry on a business formerly conducted by a deceased,

the personal representative, without authority, attempts to carry on the business of the decedent, he assumes all risk without any accompanying benefit, for if any loss occurs he must bear the loss, but if any profits accrue, no matter how great, such profits belong to the estate.27

§ 1507. The Same Subject: Effect of Such Power Given by Will or Consent of Beneficiaries.

Where the personal representative is authorized by the decedent's will to carry on the business, although he may be personally liable to anyone with whom he enters into new contracts, yet if he acts in good faith and carries on the business in its usual course and according to the testator's directions, expenditures made by him may be properly allowed in his account so that he does not personally bear the loss.28 And since the distributees of the

and to contract debts in the name of the estate, becomes personally liable for their payment, notwithstanding he acts in good faith.Martin Bros. Co. v. Peterson, 38 S. D. 494, 162 N. W. 154.

27 Nivens v. Nivens, 133 Fed. 39, 66 C. C. A. 145; Estate of Rose, 80 Cal. 166, 22 Pac. 86; Estate of Smith, 118 Cal. 462, 50 Pac. 701; Campbell v. Faxon, 73 Kan. 675, 5 L. R. A. (N. S.) 1002, 85 Pac. 760; Frey v. Eisenhardt, 116 Mich. 160, 74 N. W. 501; Matter of Peck, 79 App. Div. (N. Y.) 296, 80 N. Y. Supp. 76; Western Newspaper Union v. Thurmond, 27 Okla. 261, Ann. Cas. 1912B, 727, 111 Pac. 204; In re Shinn's Estate, 166 Pa. St. 121, 45 Am. St. Rep. 656, 30 Atl. 1026, 1030; In re Al

lam's Estate, 199 Pa. St. 573, 49 Atl. 252.

Where the administrator made an unauthorized attempt, resulting in loss to the estate, to carry on business at a store and the making of ties out of timber be longing to the estate, and the evidence is extremely unsatisfactory as to whether his action was justifiable by reason of previous contracts entered into by the deceased, the appellate court will not disturb the decision of the referee charging him with the stock of merchandise and ties on hand at the time of the appraisement at the appraised value.Estate of McPhee, 156 Cal. 335, Ann. Cas. 1913E, 899, 104 Pac. 455. 28 Boulle v. Tompkins, 5 Redf.