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81520. As to the Sale of Real Property.

An administrator has no authority to sell real estate except when authorized so to do by statute and then only in the particular instances and for the particular purposes designated by the statute. The general rule is that he must first obtain an order of court authorizing him to make such sale, which can only be secured after a showing that the case is a proper one in which such an order should issue.32 A testator, however, may by his will grant to his executors the power to sell real property of the estate.83 The early rule of the common law was that where the testator named more than one executor in his will and granted the executors the power to sell real property, if one of the executors died, the power of sale did not survive in the remaining executors.34 But if the testator devised certain land to A for life and directed that after the death of A the land should be sold by his executors generally, and in his will named three or four as executors, all of whom qualified, the death of one of such executors prior to the death of A did not deprive the remaining executors of the power of sale; but if the testator directed that the land, upon the death of A, should be sold by his executors whom he designated by name, then the death of one of the executors prior to the death

32 As to the powers of personal representatives regarding personalty and realty, see §§ 1459-1482.

As to an administrator's powers regarding realty, see §§ 1465, 1466, 1468, 1472-1475.

33 See §§ 1469-1472, and § 1476. As to the right of an adminis

trator with the will annexed to sell real property under provisions of the will, see §§ 1242-1244.

34 Littleton, § 169; Coke Litt. 112b, 113a; Holcomb v. Coryell, 11 N. J. Eq. 476; Sharpsteen v. Tillou, 3 Cow. (N. Y.) 651; Ferre v. American Board, 53 Vt. 162.

of A did not give the remaining executors the power of sale since it was contrary to the terms of the testament.35

By the statute of 21 Henry VIII, ch. 4, it was provided that all lands devised to be sold by executors could be legally sold by the executors who acted, although part of them refused to act. The statute, however, covered only cases of refusal to act and did not provide for those cases wherein one of the executors had died. The letter of the law extended only to executors who had the power of sale, but by construction it was extended to cases of lands devised to executors to be sold.8

In many of these United States the statutes obviate the common law disability of a part only of the executors executing a power of sale. The statute of 21 Henry VIII, ch. 4, has been adopted in some of the jurisdictions, while in others the statutes have provided that the remaining executors may exercise a power to sell real property in the event one of the executors refuses to exercise the power or dies before the power is sought to be exercised. It is necessary to carefully consult the statutes in each. case in order to reconcile an apparent conflict of authority. § 1521. The Same Subject: When Some Refuse to Act.

In view of the statutory regulations it is difficult to lay down an exact rule, but the general rule may be said to be that where a testator in his will gives to his executors generally the power to sell real property, those named as executors who qualify as such, although some refuse to accept the office, are vested with the authority contained in the will and may exercise the power. And this applies

35 Littleton, § 169; Coke Litt. 112b, 113a.

86 Coke Litt. 113a; Bacon's Abr.,

tit. Exrs, and Admrs., D. 1; Clinefelter v. Ayres, 16 Ill. 329.

generally even though the power of sale is discretionary with the executors, although there is authority that the power may be exercised only in those cases where the direction to sell is imperative.38 Where all the executors named in the will do not qualify for the office, those who do qualify, if they attempt to exercise a power of sale contained in the will, should show that those named as coexecutors and who were entitled to the office not only did not qualify, but that they refused to qualify.39

It may be said generally that all those who qualify as executors must join in the exercise of the power of sale given in the will and likewise all must join in the conveyance.40 Should one of the executors refuse to join in

37 Stewart v. Mathews, 19 Fla. 752; Wolfe v. Hines, 93 Ga. 329, 20 S. E. 332; Wardell v. McDowell, 31 Ill. 364; Herrick v. Carpenter, 92 Mich. 440, 52 N. W. 747; Bodley V. McKinney, 9 Sm. & M. (17 Miss.) 339; Phillips v. Stewart, 59 Mo. 491; Weimar v. Fath, 43 N. J. L. 1; Correll v. Lauterbach, 12 App. Div. (N. Y.) 531, 42 N. Y. Supp. 143; affirmed in 159 N. Y. 553, 54 N. E. 1089; Smith v. McCrary, 38 N. C. 204; Collier v. Grimesey, 36 Ohio St. 17; Heron v. Hoffner, 3 Rawle (Pa.) 393; Wood v. Hammond, 16 R. I. 98, 17 Atl. 524, 18 Atl. 198; Jennings v. Teague, 14 S. C. 229; Bedford v. Bedford, 110 Tenn. 204, 75 S. W. 1017; Johnson v. Bowden, 43 Tex. 670; Davis v. Christian, 15 Gratt. (Va.) 11.

38 Leavens v. Butler, 8 Port. (Ala.) 380; Smith v. Moore's

Heirs, 6 Dana (Ky.) 417; Bartlett v. Sutherland, 24 Miss. 395.

An administrator with the will annexed succeeds to all the powers which the executors named, although more than one in number, would have taken by virtue of the office, see § 1240.

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

Administrator with the will annexed may execute testamentary power of sale where the direction to sell is imperative, see § 1242; but not where the power of sale is discretionary, see § 1243; and as to statutory regulations these matters, see § 1244.

on

39 Clinefelter v. Ayres, 16 Ill. 329, which contains an elaborate discussion of the subject.

40 Daugharty v. Drawdy, 134 Ga. 650, 68 S. E. 472; Wilson v. Mason,

the conveyance, the court may order him so to do within a reasonable time after the purchase money has been paid.11 And to authorize a part of the executors to exercise a power of sale, it must be shown that the others refuse to act, and such refusal must be shown positively and affirmatively in order to divest them of the rights, duties and powers conferred, not by law, but by the will of the testator.42

§ 1522. Manner in Which Coexecutors May Be Held Liable for Devastavit.

Whether an executor or administrator is acting as the sole representative or as one of many, he and the sureties on his bond are in all cases liable for any devastavit or maladministration on his part.18 But the matter more difficult of determination is when one or two or more joint personal representatives is liable for losses occasioned because of the wrongful acts of any of his fellow representatives. In considering the question of the liability of one executor for damages occasioned by the devastavit of his coexecutor, the distinction must be kept in mind between personal liability and liability because of a joint bond. If an executor, although guiltless of any wrong

158 Ill. 304, 49 Am. St. Rep. 162, 42 N. E. 134; Armor v. Frey, 253 Mo. 447, 161 S. W. 829; In re Simmon's Estate, 254 Pa. 231, 98 Atl. 871.

41 Love v. Love, 3 Hayw. (4 Tenn.) 13.

42 Pennsylvania Co. for Ins. on Lives v. Bauerle, 143 Ill. 459, 33 N. E. 166; Coleman v. Connolly, 242 III. 574, 134 Am. St. Rep. 347, 90 N. E. 278.

43 In re Sanderson, 2 Cal. Unrep. 750, 13 Pac. 497; Crain v. Kennedy, 85 Ill. 340; Van Pelt v. Veghte, 14 N. J. L. 207; Douglass v. Satterlee, 11 Johns. (N. Y.) 16; Wood v. Brown, 34 N. Y. 337.

A debt owing by one of several executors to the testator at the time of his decease is an asset in the hands of the debtor-executor for which he alone is responsible. -Adair v. Brimmer, 74 N. Y. 539.

doing, gives a joint bond with a coexecutor for the faithful performance of their duties, he and the joint sureties will be held liable by reason of such bond for wrongs committed by his coexecutor; but if separate bonds are given, then the executor who is guiltless will not be held liable for the wrongs of the other. The rules herein announced, unless otherwise qualified, have reference to the personal liability of executors without consideration of any liability under the bond.44

45

Where an executor or administrator is liable for devastavit whether because of his own acts or those of another, he is chargeable not only to those entitled to a distributive share of the estate, but also to the creditors. A distinction was once made between the rights of beneficiaries and those of creditors, but this distinction does not now prevail. The extent of the liability of one executor for the acts of his coexecutor may be said to depend principally upon the circumstances of the particular case.16 And inasmuch as coexecutors have equal rights and are subject to the same liabilities, neither is responsible to the other except in the matter of contribution, but each is liable to the creditors or beneficiaries to the full extent of the funds which come into his possession.47 The limit of the liability of an executor is the value of assets which come into his

44 Fleming v. Walker, 152 Ala. 386, 126 Am. St. Rep. 46, 44 So. 536.

45 A distinction recognized by Lord Harcourt in Churchill v. Hobson, 1 P. Wms. 241, but set aside by Lord Thurlow in Sadler v. Hobbs, 2 Bro. C. C. 114, as "odd."

See, also, Johnson's Admr. v.

Johnson's Exr., 2 Hill Eq. (S. C.) 277, 29 Am. Dec. 72.

But compare Appeal of Brown, 1 Dall. (Pa.) 311, 1 L. Ed. 152.

46 In re Sanderson's Estate, 74 Cal. 199, 15 Pac. 753; Fonte v. Horton, 36 Miss. 350; Clarke v. Cotton, 17 N. C. 51.

47 Edmonds v. Crenshaw, 14 Pet. (U. S.) 166, 10 L. Ed. 402; Succession of Jordy, 5 La. Ann. 37.

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