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Powers and Duties of an Executor or Administrator

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POWERS AND DUTIES OF AN EXECUTOR OR ADMINISTRATOR. The duty of an administra tor Is in general to do the things set forth in his bond ; and for this he is generally oblig ed to give Security ; Baldwin v. Buford, 4 Yerg. (Tenn.) 20 ; Colwell v. Alger, 5. Gray (Mass.) 67.

The duties of an executor are the same, so. far as concerns the collection of the assets and up to the point at which the estate is ready for distribution. It is then to be dis posed of, if an administrator, according to law, and if an executor, pursuant to the wilL See infra.

An executor or administrator, coming into possession of property by virtue of his posi tion, is estopped, while in possession,, from disputing the title of his intestate or testa tor ; Wiseman v. Swain (Tex.) 114 S. W. 145.

Duties. They may be thus summarized. Those of an executor and administrator are alike except so far as those of the former spring from the will.

First. He must be responsible for the' bur ial of the deceased in a manner suitable to the estate ; 2 Bla. Com. 508. But no, unrea sonable expenses will be allowed, nor any unnecessary expenses if there is any danger of the estate proving insolvent ; 2 C. & P. 207 ; Barclay's Estate, 2 W. N. C. (Pa.) 447 ; Succession of Hearing, 28 La. Ann. 149 ; Pat terson v. Patterson, 59 N. Y. 582, 17 Am. Rep. 384. The estate and not the widow is liable for funeral expenses; Compton v. Lancaster (Ky.) 114 S. W. 260; but she may order the interment on a scale proportionate to the financial condition of the deceased and the estate will be liable ; Wagoner Un dertaking Co. v. Jones, 134 Mo. App. 101, S. W. 1049. See FUNERAL EXPENSES.

Second. The executor must prove the will, and take out letters testamentary, and an administrator must procure his letters of administration; see supra. In England, there are two ways of proving a will,—in common form, and in form of law, or solemn form. In the former, the executor propounds the will,—i. e. presents it to the registrar, in the absence of all other interested parties. In the latter, all parties interested are sum moned to show cause why probate should not be granted.

Third. Ordinarily, he must make an in ventory of personal property at least, and, In some states, of real estate also; Griswold v. Chandler, 5 N. H. 492; Freeman v. Ander son, 11 Mass. 190; Bourne v. Stevenson, 58 Me. 499; Pursel v. Pursel, 14 N. J. Eq. 514. This duty rests on executors and not on adult legatees ; Mills v. Smith, 65 Hun 619, 19 N. Y. Supp. 854.

Fourth. He must give notice of his ap pointment in the -statute form, and should advertise for debts and credits; Gilbert's Adm'r v. Little's Adm'r, 2 Ohio St. 156 ; but the giving or not giving it does not affect the statute of limitations, nor does the fail ure to publish, affect a creditor who did not present his claim ; McMillan v. Hayward, 94

Cal. 357, 29 Pac. 774.

Fifth. He must collect the goods and chat tels, and the claims inventoried, with reason able diligence. And he is liable for a loss by the insolvency of a debtor, if it results from his gross delay; Long's Estate, 6 Watts (Pa.) 46; Dean v. Rathbone's Adm'r, 15 Ala. 328.

Sixth. The personal effects he must deal with as the will directs, and the surplus must be turned into money and divided as if there were no will. The safest method of sale is a public auction.

• Seventh. He must collect the outstanding -claims and convert property into money ; 2 ,Kent 415; Bailey v. Dilworth, 10 Smedes & M. (Miss.) 404, 48 Am. Dec. 760; 1 Mylne & C. 8; Evans v. Iglehart, 6 Gill & J. (Md.) 171; Bogart v. Van Velsor, 4 Edw. Ch. (N. Y.) 718; Moore v. Hamilton, 4 Fla. 112 ; Smyth v. Burns' Adm'rs, 25 Miss. 422; Wey er v. Bank, 57 Ind. 198 ; Roumfort v. McAlar ney, 82 Pa. 193; but. he cannot occupy or lease the lands of the estate, or receive Tents or profits therefrom, as these descend to the heir ; Estate of Merkel, 131 Pa. 584, 18 Atl. 931.

Eighth. He must keep the money of the estate safely, but not mixed with his own, or he may be charged interest on it. He is also charged when he has misemployed funds or let them lie idle, provided a want of ordinary prudence is proved against him ; Hammond v. Hammond, 2 Bland, Ch. (Md.) 306; Sullivan v. Winthrop, 1 Sumn. 14, Fed. Cas. No. 13,600; Hite's Ex'r v. Hite's Lega tees, 2 Rand. (Va.) 409; Lake v. Park, 19 N. J. L. 109; Darrell v. Eden, 3 Des. (S. C.) 241, 4 Am. Dec. 613 ; Appeal of Mayberry, 33 Pa. 258; In re Myers, 131 N. Y. 409, 30 N. E. 135. When a debtor is appointed ex ecutor of the creditor's will, equity will pre sume that the debt has been paid, and will treat it as an asset in the executor's bands; Crow v. Conant, 90 Mich. 247, 51 N. W. 450, 30 Am. St. Rep. 427. And generally, interest is to be charged on all money received by an executor and not applied to the use of the estate; McCaw v. Blewitt, Bailey, Eq. (S. C.) 98 ; Arnett v. Linney, 16 N. C. 369 ; Thompson v. Sanders' Heirs, 6 J. J. Marsh. (Ky.) 94; Lloyd's Estate, 82 Pa. 143. See Good's Estate, 150 Pa. 301, 24 All 624. But an executor cannot be charged with interest on money allowed him for commission; Brin ton's Estate, 10 Pa. 408 ; he is not charge able with compound interest; Appeal of Light, 24 Pa. 180. Where investments have been made contrary to the requirements of the will, on personal security, they are at the executor's risk, and he must answer per sonally for any loss; Brewster v. Demarest, 48 N. J. Eq. 559, 23 Atl. 271. See INTEREST ; INVESTMENTS.

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