of property and the enforcement of rights, the appointment of the executor or administrator, when made, relates back to the time of the death of decedent. Before the grant of letters, the person nominated as executor, or the person entitled to administration, has no authority further than is necessary to preserve and protect the property until the appointment can be made. But if letters are subsequently granted to such person, icts done by him before the grant which would have been lawful had he then been the legal officer, will be deemed ratified.

A person who without authority intermeddles with the estate of the decedent and assumes to act as executor or administrator, was, at Common Law, termed an executor de son tort, that is an executor "of his own wrong." Any act evincing a legal control over the goods of the estate, would, if unexplained, make the person liable as such an executor. But mere acts of kindness or charity toward the property or estate of the decedent would not do so. An executor de son tort is said to have all the liabilities but none of the rights of a lawful representative. He is liable to be sued by the rightful representative; by a creditor or a legatee; but he will usually be allowed credit for those acts which the lawful representative would have been obliged to perform.

If such an executor afterwards receives an official appointment, such of his acts as would have been valid, if he had been the rightful officer, will be ratified. The rules just mentioned relating to this class of executors

have been abrogated by statute in many of the States, though in several States they still remain in force.

Sec. 1039. THE RIGHTS, DUTIES AND LIABILITIES OF EXECUTORS AND ADMINISTRATORS.-The first duty of the officer is to gather together and take into his possession such of the property of the deceased as passes to the representative. This property is termed the assets of the

estate.

1. The real estate of the deceased passes usually to the heir or devisee upon the death of the decedent, and the personal representative has no interest in it. In a number of states by statute the representative is entitled to the possession of the real estate during the period of administration for the purpose of settling the estate, but even under these statutes the real estate is usually deemed to descend at once to the heir, who may exercise all the rights of ownership over it, until the personal representative sees fit to exercise his possessory rights under the statute.

2. Except in such states as provide that the officer may possess himself of the real estate during administration, the personal representative is not bound or entitled to take possession of or to care for the real estate, unless it becomes necessary for the purpose of selling it to pay debts or legacies. If the personal estate is insufficient for this purpose, then the real estate becomes assets, by statute in all of the States.*

*Elstner v. Fife, 32 O. S. 358; Douglass v. Massie, 16 Ohio 271; Ramsdall v. Craighill, 9 Ohio 198.

3. The testator may, by his will, confer upon the representative the power to sell, mortgage or otherwise deal with real estate, and powers so conferred are construed to be in addition to those conferred by the

statutes.

Sales under such powers usually require no license or decree from the court. In all other cases, than those in which such a power exists, the representative has no authority to sell the real estate, even for the payment of debts, without the order or license of the probate court. Where the testator confers a power to sell upon several, all of these persons must unite in its execution, and if one dies or refuses to do so, the power fails. Though this latter rule is changed by statutes in some states.†

4. Discretionary powers conferred upon an executor by will, are usually personal in their nature and do not follow the office into the hands of his successor. That is, where A has been appointed executor by will with discretionary power nominated in the will, and he dies, his successor, B, will not have the powers which were conferred upon A.

5. Where such a power is conferred by the testator, and the object can not be accomplished or is otherwise accomplished, the power ceases. If the testator directs the nature of the property to be changed, as to convert real property into personal property or vice versa, the courts of equity will regard that as done which is so

†Rev. Stat. of Ohio, Sec. 5980.

directed to be done. And the property so directed to be changed will be treated as though the change had actually taken place. This equitable rule is known as the Doctrine of Conversion, and applies wherever the testator has made a positive and unqualified direction to the executors or representatives to change property.*

6. Chattels real, go to the personal representative after the death of the tenant. By chattels real, are meant interests in land less than free-holds, as estates for years, estates from year to year, and estates for the life of a third person (per autre vie) after the death of the testator.

7. The interest of a mortgagee, or mortgaged real estate, is personal property and goes to the representative.

If the representative buy the property so mortgaged, in a foreclosure suit on the mortgage, the property is still regarded as personalty and as an asset. The mortgaged property itself or the equity of redemption, prior to a foreclosure, is regarded as real estate, and on the death of the mortgagor goes to his heirs.

Sec. 1040. SAME SUBJECT — PERSONAL PROPERTY AS ASSETS.-The chief portion of the representative's estate is the personal property of the deceased. This is of two kinds: 1. Personal property in possession. 2. Rights in action, also called choses in action.

*Page on Wills, Sec. 699; Ebey v. Adams, 135 Ill. 80, 10 L. R. A. 162; Johnson v. Conover, 54 N. J. Eq. 333; Collier v. Grimesey, 36 O. St. 17; Klotz's Est., 190 Pa. St. 152.

1. Personal property in possession is of three kinds: (a), Chattels animate. (b), Chattels vegetable. (c), Chattels inanimate.

Chattels animate include all domestic animals and animals originally wild where they have been domesticated. Chattels animate pass to the representative upon the death of the decedent.

Chattels vegetable include trees, grass, and fruit, which naturally include all kinds of growing things, as crops, trees, grass, fruit and the like. Trees, grass and fruit, while still annexed to the soil and unsevered, are considered a part of the realty, and pass to the heir. But if severed from the soil during the life of the owner, they became personal property and pass to the representative upon the death of the decedent. Crops raised annually, of the kind known as fructus industriales or emblements go to the representative as against the heir, but not as against the devisee.

All other personal property of the deceased may be classed as chattels inanimate and pass to the representative on the death of the decedent.

As between the representative and the heir, the rule respecting fixtures is quite strictly construed in favor of the heir, and even more strictly in favor of the devisee in conflicts between the devisee and the representative.

As between the owner of land and the representative of a deceased tenant, the law is liberal in allowing the representative to remove trade fixtures, and usually agricultural and domestic fixtures.