have received partial payment out of the partnership assets, must bring in their dividends, or else be excluded until the latter class have received sufficient to place them on terms of equality with the former. Ibid. Action on ecutor or SEC. 1586. (199.) An administrator may, in his own boud of exname, for the use and benefit of all parties interested in the administraestate, maintain actions on the bond of an executor, or of brought by any former administrator of the same estate. Statutes of 1851, p. 473, ◊ 199. See section 1582, ante, and cases cited there. An administrator is not relieved from a compliance to the extent of his ability with the statute as to the statement of the personal property in his petition, by the fact that there has been a previous administrator of the estate. He must show not merely the personal property which has come into his possession since his appointment, but must also show to the extent of his ability, that which came into the hands of his predecessors. Haynes v. Meeks, 20 Cal. 288. An heir, who, in a subordinate capacity, managed the property of an intestate without administration, under the direction and control of another, while the Mexican law was in force, is not liable in a character analogous to that of an executor de son tort at common law. Valencia v. Bernal, 26 Cal. 328. If the executor has come into the possession of the trust fund or its substitute, so that the same can be identified, he can be held to account and charged as a trustee, upon the same terms as his testator held the trust and the relationship of trustee, and cestui que trust will be added to that of executor. Lathrop v. Bampton, 31 Cal. 17. In case administration be by more than one executor, each one is equally entitled to the possession of the estate; and where, without the agency of one executor, the property of the estate passes into the possession of another, and becomes lost to the estate, he is not chargeable who had not the possession of the portion thus lost. Abila v. Burnett, 33 Cal. 658. Co-administrators stand as sureties for each other; and if one is misapplying and squandering the assets of the estate, the liability of the other to be seriously injured, is a sufficient ground for relief on general principles of equity. Davis v. Thorn, 6 Texas, 482. tor may be another administrator. What execu. tors are not SEC. 1587. (2 200.) In actions by or against executors, it is not necessary to join those as parties to whom letters parties to were issued, but who have not qualified. Statute of 1851, p. 473, § 200. actions. pound. SEC. 1588. ( 201.) Whenever a debtor of a decedent May comis unable to pay all his debts, the executor or administrator, with the approbation of the probate court or judge, may compound with him, and give him a discharge upon receiving a fair and just dividend of his effects. A com Recovery of property traudulently dis testator. promise may also be authorized, when it appears to be just and for the best interest of the estate. Statutes of 1851, p. 473, § 201; 1861, p. 645, § 71. The act to authorize executors and administrators to compromise claims, is not restrictive of their common law powers, but designed to offer them additional protection by its exercise. Choutean v. Suydam, 21 New York, 179. The provisions of chapter 80 of the laws of 1847 (3 Rev. Stat. 5; ed. 174, § 29), authorizing surrogates to compound debts belonging to an estate, do not apply to demands against solvent debtors. Howell v. Blodgett, 1 Redf. Sur. Rep. 323. A compromise of a claim belonging to the estate of a deceased person will not be allowed, except in special cases, as in the case of insolvency or doubtful validity of the claim. Goods of Patten, 1 Tucker's Sur. Rep. 56. SEC. 1589. (202.) When there is a deficiency of assets in the hands of an executor or administrator, and when the posed of by decedent, in his lifetime, has conveyed any real estate or any rights or interests therein, with intent to defraud his creditors, or to avoid any right, debt or duty of any person, or has so conveyed such estate that by law the deeds or conveyances are void as against creditors, the executor or administrator must commence and prosecute to final judgment any proper action for the recovery of the same; and may recover for the benefit of the creditors all such real estate so fraudulently conveyed, and may also, for the benefit of the creditors, sue and recover all goods, chattels, rights or credits which have been so conveyed by the decedent in his lifetime, whatever may have been the manner of such fraudulent conveyance. When executor to sue, as provided in action. Statutes of 1851, p. 473, § 202. The administrator of a fraudulent vendor must use proper means to secure the property fraudulently sold, to the creditors; otherwise he will be liable to an action by them. Danzy v. Smith, 4 Texas, 411. But see next section. SEC. 1590. (2 203.) No executor or administrator is bound to sue for such estate as is mentioned in the precedpreceding ing section, for the benefit of the creditors, unless on application of creditors, who must pay such part of the costs and expenses of the suit, or give such security to the executor or administrator therefor, as the probate judge shall direct. Statutes of 1851, p. 474, § 203. of estate SEC. 1591. (8204.) All real estate so recovered must Disposition be sold for the payment of debts, in the same manner as if recovered. the decedent had died seized thereof, upon obtaining an order therefor from the probate court; and the proceeds of all goods, chattels, rights and credits so recovered must be appropriated in payment of the debts of the decedent, in the same manner as other property in the hands of the executor or administrator. Statutes of 1851, p. 474, § 204. Ex Col CHAPTER IX. OF THE CONVEYANCE OF REAL ESTATE BY EXECUTORS AND ADMIN- SECTION. 1597. Executor to complete contracts for sale of real estate. 1599. Interested parties may contest. 1600. Conveyances, when ordered to be made. 1601. Execution of conveyance and record thereof, how enforced. 1602. Rights of petitioner to enforce contract. 1603. Effect of conveyance. 1604. Effect of recording a copy of the decree. 1605. Recording decree does not supersede power of court to en force it. 1606. Where party to whom conveyance to be made is dead. CO: for res End of Section 1597, Page 180. A Probate Court has no authority, on the petition of an executor, to order him on the receipt of money loaned, to re-convey real estate conveyed to his testator by deed absolute on its face, but intended only as security for the repayment of such money. Anderson v. Fisk, 41 Cal. 308. 2 Revocation of power of attorney.-Death of principal.—The death of the principal operates as a revocation of a power of attorney to convey land, and if, on the death of the principal, the attorney in fact makes a deed under the power, the deed is void, even if the attorney is ignorant of the death. Ferris v. Irving, 28 Cal. 645. Death of the principal revokes the authority of the agent, and a deed of land made by him after such death, does not bind the representatives of the principal. Travers v. Crane, 15 Cal. 12. But if the agent has a power coupled with an interest, that is, a power which conveys to the agent an interest in the property, then the execution of the power after the death of the principal is good. Ibid. If, on an executory contract for the purchase of land made by the plaintiff with the agent during the life of the principal, money due the principal was paid, after his death, to the agent, who settled the amount with the estate, as that the estate received the benefit of the payment, plaintiff would be en titled in equity to call for the legal title, and could defend in ejectment by the representatives of the principal. Ibid. Specific performance by administrator, when.--An administrator will not be compelled to perform specifically a contract of the intestate to convey land, unless it is found as a fact that the intestate had contracted to convey the particular land described in the complaint. An agreement of the intestate to convey a parcel of his land, when he owned several parcels without describing any particular tract, will not be enforced. Ferris v. Irving, 28 Cal. 645. It is well settled by the decisions of this court, upon general principles as well as by the statute of February 2, 1844 (Hart. Dig. p. 344), that in an action for the specific performance of a contract made by the testator or intestate for the conveyance of land, it is not necessary that the heirs should be made parties in order to bind them. Shannon v. Taylor, 16 Texas, 413. The simple circumstance that no order of the probate court appears, continuing the term of administration from year to year, under former statutes, will not invalidate the lawful acts of the administrator or executor done in due course of administration. Ibid. In the absence of fraud, a decree of the district court against an executor or administrator, for the conveyance of land, is conclusive against the heirs. Ibid. The jurisdiction of the probate court to enforce specific performance by an administrator of a contract of deceased to convey real estate, can be exercised only where there is a bond, or the agreement to make title in writing. Peters v. Phillips, 19 Texas, 70. executor to veyance, of hearing. SEC. 1598. (2206.) On the presentation of a verified Petition for petition by any person claiming to be entitled to such con- make conveyance from an executor or administrator, setting forth the and notice facts upon which the claim is predicated, the probate court must appoint a time and place for hearing the petition, at a regular term of the court; and must order notice thereof to be published at least four successive weeks before such hearing, in such newspaper in this State as he may designate. Statutes of 1851, p. 474, § 206. parties may SEC. 1599. (207.) At the time and place appointed Interested for the hearing, or at such other time to which the same contest. may be postponed, upon satisfactory proof by affidavit or otherwise of the due publication of the notice, the court must proceed to a hearing, and all persons interested in the estate may appear and contest such petition, by filing their objections in writing, and the court may examine, on oath, the petitioner and all who may be produced before him for that purpose. Statutes of 1851, p. 474, § 207; 1861, p. 646, § 72. |