the authority to sell real property of the estate, this does not by implication vest in him the right to give an option to a third person for the purchase of such property, but the party obtaining such option can not hold the executor personally liable where he contracted with knowledge that a deed from the heirs was necessary."9

At common law an executor given power by the will of the testator to sell real property could make a disposition of lands prior to his appointment and his subsequent appointment validated his act. In most jurisdictions, however, it is now required that an executor must qualify as such by taking the oath of office and giving a bond, and in some jurisdictions he is precluded from performing any valid acts prior to the time that the bond is given, unless such bond is dispensed with by provisions in the will.50 But if property is devised to the executor for the purpose of sale, it has been held that he may fulfill the trust imposed even though he does not fully qualify as executor.51

discretion, he has an implied power to lease the property until the sale is made. Moore v. Trainer, 252 Pa. St. 367, 97 Atl. 462.

Powers in trust under the will do not devolve upon an administrator with the will annexed, see § 1241.

As to the power of an administrator with the will annexed to sell realty under provisions of the will, see §§ 1242-1244.

49 Hedgecock v. Tate, 168 N. C. 660, Ann. Cas. 1916D, 449, 85 S. E. 34.

Compare: Owen v. Riddle, 81 N. J. L. 546, Ann. Cas. 1912D, 45, 79 Atl. 886.

50 Amberson v. Candler, 17 N. M. 455, 130 Pac. 257.

As to the power of an executor before probate, common law rule, and rule under modern statutes, see §§ 1344, 1345.

As to the effect of failure to give a bond when so ordered, see § 1354.

51 Hogan v. Wyman, 2 Ore. 302; Brown v. Brown, 7 Ore. 285, 299.

ет

Under a devise to sell, the executor has a common law authority by which he may vest the legal estate in the purchaser. The purchaser under the power takes the estate from the testator who creates the power as if the power and the instrument executing the power were incorporated in one instrument.52

$1470. Effect of Equitable Conversion of Realty Into Personalty and of Personalty Into Realty by Direction of Testator in His Will.

Constructive or equitable conversion of real property into personal property may be effected by a testator in his will giving imperative directions to the executor to sell the realty and to distribute the proceeds in a specified manner; likewise personal property may be converted into real property by imperative directions that the personalty be sold by the executor and the proceeds be invested in realty.53 Such conversion depends upon the intention of the testator, and the manner in which such intention must be expressed has been heretofore treated.54 The rule is that the conversion is considered effective as of the date of the death of the testator except that some authorities hold that where the sale is to be made only after the termination of a life estate, the conversion is postponed until the death of the life tenant.55 However, if the purpose for which the sale is directed fails, the property will devolve into its original form;56 and all the beneficiaries entitled to the property or the proceeds

52 Coke's Litt., 113a; 4 Kent. Com. #337; Ferre v. American Board of Commissioners, 53 Vt. 162; Tudor v. Tudor, 80 Vt. 220. 130 Am. St. Rep. 977, 67 Atl. 539.

53 See §§ 288, 807. III Com. on Wills-27

54 See 808.

55 See § 809.

56 See § 810.

Realty converted into personalty does not bar dower, see § 811.

thereof may, by an agreement among themselves or by conveyances, work a reconversion of the property.57 Where realty is converted into personalty by directions in the testator's will, the property is subject to the control of the executor and no title to the realty is vested in the beneficiaries who are to receive the proceeds. Unless a reconversion is effected through the consent of all the beneficiaries, no one of several beneficiaries is entitled to bring an action to partition the realty."

58

A direction in the testator's will that the executor sell the decedent's property and pay the proceeds to the widow works a conversion and gives the executor full power and authority over the real estate, with the right to maintain any action at law or suit in equity which might be necessary to carry out the directions of the testator and to protect the interests with which the property is charged.59 While generally the executor has no authority to maintain an action regarding real property of the decedent, the case is different where he is practically constituted a trustee of the real estate and is directed to sell the same. If a cloud exists upon the title, it is his right and duty to do everything in his power to have the cloud removed so that he may more advantageously carry out the direction to sell.co

§ 1471. The Same Subject: When Purpose Is Satisfied by a Portion of Proceeds of Sale, Balance Retains Its Original Character.

The testator may direct the sale of real property for a particular purpose, and which purpose may be satisfied

57 See § 812.

58 Bank of Ukiah v. Rice, 143 Cal. 265, 101 Am. St. Rep. 118, 76 Pac. 1020.

See § 1479.

59 Appeal of Dundas, 64 Pa. St. 325; Appeal of McClure, 72 Pa. St. 414.

60 Sears v. Scranton Trust Co.,

out of a portion of the proceeds of the sale. In such a case the unexpended balance retains the character of realty. Thus, where a testator in his will directs the executor to sell real property for the payment of his debts and the executor does so under the power contained in the will, the conversion is complete only so far as the proceeds of the sale are necessary for the purpose stated; and if a balance remains after the payment of the debts, such excess, although in the form of money, remains impressed with the character of real estate for the purpose of determining who are to receive it."

§1472. Personal Representative May Exercise Regarding Realty Only Those Powers Conferred by Statute or by Will of Decedent.

In view of the common law rule that immediately upon the death of the owner of real property, title thereto vests in his heir or in the devisee under his will, with the right of immediate possession and to collect the rents, issues and profits thereafter accruing, and with the sole power to maintain suits or actions regarding such property, it is evident that the only rights and powers which an executor or administrator has or may exercise regarding the real property of the estate are those specially given him by statute, and he is strictly limited to such rights and powers as are thus granted him, and these he may exercise only in the mode and for the purposes specified in the statute.62

228 Pa. St. 126, 20 Ann. Cas. 1145, 77 Atl. 423.

61 Smith v. Smith, 174 Ill. 52, 43 L. R. A. 403, 50 N. E. 1083; Cronise v. Hardt, 47 Md. 433.

62 McKay v. Broad, 70 Ala, 378; Brown's Admr. v. Mize, 119 Ala.

10, 24 So. 453; Burr v. Bloemer, 174 Ill. 638, 51 N. E. 821; McClead v. Davis, 83 Ind. 263, 265; Gibson v. Farley, 16 Mass. 280; Hall v. Farmers and Merchants Bank, 145 Mo. 418, 46 S. W. 1000; Duryea v. Mackey, 151 N. Y. 204, 45 N. E.

Except as the executor may be vested with certain powers by the provisions of the will, the only instances in which an executor or administrator is entitled to sue to recover real property of the decedent is when he is in fact entitled to the possession of the realty for the purposes specified by statute, the general rule being that the heir of the decedent is the only necessary party plaintiff in a suit to recover the lands. The right of an executor or administrator to bring an action regarding real property of the estate depends solely upon the title or rights vested in him by statute. Thus by reason of statutory provisions and contrary to the rule of the common law, the executor or administrator has been held authorized to maintain, when necessary, actions for ejectment,65 for unlawful detainer,66 to recover the possession of the realty, and to set aside a contract of the decedent for the sale of real property on the ground that the decedent ́ was incompetent at the time the contract was made.68

67

458; Cooley v. Jansen, 54 Neb. 34, 74 N. W. 391; Price v. Ward, 25 Nev. 203, 46 L. R. A. 459, 58 Pac. 849; In re Merkel's Estate, 131 Pa. St. 584, 18 Atl. 931; Moseley v. McBride, 40 Okla. 270, 138 Pac. 138.

An executor may be given powers over realty by directions in the will of the owner, see § 1469.

As to equitable conversion, see § 1470, 1471.

63 Chowning v. Stanfield, 49 Ark. 87, 4 S. W. 276; Scroggins v. Oliver, 7 Ind. T. 740, 104 S. W. 1161.

64 Theuer v. Brogan, 41 Ark. 88. 65 Wilson v. Kirkland, 172 Ala. 72, 55 So. 174; Barlage v. Detroit

etc. Ry. Co., 54 Mich. 564, 20 N. W. 587; Dundas v. Carson, 27 Neb. 634, 43 N. W. 399.

66 Griffith v. James, 91 Wash. 607, 158 Pac. 251.

67 Mayor etc. of Chauncey v. Brown, 99 Ga. 766, 26 S. E. 763; Cuthburth v. Bell (Okla.), 155 Pac. 1136.

The right of recovery of the property of the estate by the executor or administrator is good even as against an heir or devisee.Griffith v. James, 91 Wash. 607, 158 Pac. 251.

68 Wheeler v. McKeon, 137 Minn. 92, 162 N. W. 1070.