it. If this were not so, prudent men would not bid a fair price at such sales."

In Garnett v. Macon, 6 Call, 308, 362, Chief Justice Marshall said: "The purchaser [of chattels] is not bound to make any inquiry. The general power of the executor to sell protects him in buying; but if he buys with notice that the sale iz a breach of trust, the property remains charged with it. I feel much difficulty in resisting the application of this principle to freehold estates charged with the payment of debts. It would seem to me as if the inquiry must always be into the fact. The question must always be, Is the sale, taking its object into view, a breach of trust? And are the circumstances such as to charge a purchaser, having express notice, with a participation in the breach? The purchaser of a chattel from an executor, with notice that no debts are due, or in payment of his own debt, seems to me to present the same questions." And it was held by Brett, L. J., in In re Tanqueray-Willaume, L. R. 20 Ch. D. 465, 482: "The question whether the purchaser's title [to real estate charged with the payment of debts] would be bad if there were not in fact any debts, supposing the time which has elapsed not to be too long, is determined by Stroughill v. Anstey, 1 De Gex, M. & G. 635, which is an authority for saying that if there is a charge of debts upon the property, then, if the purchaser has no knowledge that there are no debts, he has, except under peculiar circumstances, a right to assume that there are debts, and that his title is good whether there are or are not debts in 306 fact. So far, therefore, from its being prudent in him to ask this question, it is imprudent to ask it unless there has been sufficient lapse of time to call upon him to make that requisition": See, also, Smith v. Henning, 10 W. Va. 596, 640; 11 Am. & Eng. Ency. of Law, 2d ed., 1053, and notes. These authorities clearly show that this principle applies as well to the sale of land charged with debts as to the sale of personalty. The cases cited deal with sales by the executor, but there is, in our opinion, no difference as to this matter between a sale under a power to sell to pay debts and a mortgage given to secure a loan under a power to raise money to pay debts. It is incumbent on the lender to ascertain the power of the executor under the will, and, if the will gives the power to raise money to pay debts, it is not necessary for the lender to inquire into the amount of the debts or into the validity of the claims against the estate. Where the loan is made a long time after the death of the tes

tator, so that there arises a presumption that the debts have all been paid, the estate is not bound beyond the amount of the debts actually owed. The expiration of a long period of time after the qualification of the executor would be sufficient to put the lender upon inquiry as to whether there are debts. In the present case, the loan was made within eighteen months after the probate of the will, and no fraud or collusion or notice of the amount of the debts, on the part of the mortgagee, was intimated in the record. The executor had the power to borrow the money to pay the debts of the estate, and the lender had the right to presume that this power was properly exercised. Not only was the executor the sole judge of the amount of the debts, but he alone knew of the amount of funds of the estate which were available to pay those debts. In order to determine the necessity for the loan, it was necessary to know, not only the amount of the debts, but also the amount of funds already on hand which were available to pay the debts. Into these matters we think the lender was under no duty to inquire. He was protected, having loaned the money in good faith and without notice, although, as matter of fact, the amount loaned exceeded the amount of the debts of the estate.

4. The power of the executor to raise money necessarily implied authority to secure the loan. We think it also necessarily 307 implied the authority to make a contract to pay the lender ten per cent attorneys' fees in case the debt had to be collected by suit. Contracts to pay attorneys' fees have been held good by this court, and are recognized by our Civil Code, section 3667. They are, however, not enforceable unless the party, when sued, files a plea and fails to sustain it. This court has held that the insertion of a stipulation for the payment of attorneys' fees does not destroy the negotiability of a promissory note. It seems now to be the general practice in this state for the borrower of money to insert in his note or contract an obligation to pay attorneys' fees in case the debt has to be collected by law. The power given the executor in the present case implied authority to raise the money in any proper and usual way, and the agreement to pay attorneys' fees was not improper or unusual. We therefore hold that the executor, having power under the will to raise the money in such manner as seemed best to him, had authority to contract for the payment of attorneys' fees if the note given had to be collected by suit.

Judgment affirmed.

All the justices concurring.

Common-law Powers of Executors.

We shall not in this note treat of the powers of joint executors, or the powers of executors over property situated outside of the jurisdiction of their appointment. In brief, it may be said that at common law an executor had absolute power with reference to personal property, and no power whatever with reference to the real property left by a decedent. No distinction will be drawn between the powers of an executor and those of an administrator. Their powers even at common law were practically the same, except that an administrator's power did not accrue until after his appointment. But after administration was granted the power of an administrator was equal to and with the power of an executor: Shaw v. Berry, 35 Me. 279, 58 Am. Dec. 702; Murray v. Blatchford, 1 Wend. 583, 19 Am. Dec. 537. Indeed, prior to the statute of distribution, administrators stood on even a better footing than executors, because executors were required to pay legacies after the debts of the estate had been settled, whereas administrators had no legacies to pay, and the surplus of the personal estate, after payment of all the debts, belonged to them as absolute owners: Potts v. Smith, 3 Rawle, 361, 24 Am. Dec. 359. An executor with the will annexed likewise had the same rights of property as the execu tor named in the will if he had qualified: Petersen v. Chemical Bank, 32 N. Y. 21, 88 Am. Dec. 298.

Powers of Executor Before Probate.-An executor derives his power from the will, and not from its probate. The probate determines that the instrument is the will of the testator, but the executor named therein derives his power, not from the court of probate, but from the testator. For this reason an executor could exercise all the powers pertaining to his office which did not require a profert of the letters testamentary: Strong v. Perkins, 3 N. H. 517; Thiefes v. Mason, 55 N. J. Eq. 456; Gordon v. Woods, 4 Bibb, 476; Mitchell v. Rice, 6 J. J. Marsh. 624. Hence, he could receive and dispose of the personal estate before probate: Thiefes v. Mason, 55 N. J. Eq. 456. Since the executor's title accrues at the moment the testator dies, he may do many acts which pertain to his office without probate, such as collect debts, sell property, pay debts and legacies, and his acts will be legal: Marcy v. Marcy, 32 Conn. 308; Gordon v. Woods, 4 Bibb, 476; Rand v. Hubbard, 4 Met. 252; Baldwin v. Buford, 4 Yerg. 16; Shirley v. Healds, 34 N. H. 407. Indeed, an executor before probate of a will could do almost everything which he could do after probate: Mitchell v. Rice, 6 J. J. Marsh. 624; Gilbert v. Bartlett, 9 Bush, 49. The will must, however, subsequently be admitted to probate in order to render the executor's acts valid for all time and for all purposes. Probate is essential

REFERENCE TO MONOGRAPHIC NOTES.

Power and duty of executors as to property outside the state: 45 Am. St. Rep. 661-674. When executors are by implication vested with power to sell: 87 Am. Dec. 209-217. Powers of executors before probate: 55 Am. Dec. 436- 439.

to sustain his acts: Wood v. Nelson, 9 B. Mon. 600. The executor may make an inventory of the testator's personal effects and take possession of them. He may enter peaceably into the house of the heir and take the securities for debts due the deceased, and remove his goods: Hathorn v. Eaton, 70 Me. 219. In Pennsylvania it seems that an executor's powers before probate are limited to merely passive acts, such as receiving notice of the dishonor of a note, since they have immediate power to qualify themselves to act if they choose and if the occasion requires it: Shoenberger v. Lancaster Sav. Inst., 28 Pa. St. 459. This is, however, a modification of the common-law rule, for at common law an executor had power before probate to do almost any act belonging to his office, except to sue and to defend suits: Gilbert v. Bartlett, 9 Busn, 49. The only reason for denying him the power to sue was the necessity of making profert of his letters testamentary. He could commence his action, but he could not declare, because when he declares he must make profert: Rand v. Hubbard, 4 Met. 252; Gordon v. Woods, 4 Bibb, 476; Mitchell v. Rice, 6 J. J. Marsh. 624. If after suit was commenced he procures letters testamentary before he declares at law, or before the case comes to a hearing in equity, such letters will be construed to relate to the commencement of the action: Baldwin v. Buford, 4 Yerg. 16. Thus, he has the right to bring his action and proceed to the point where profert is necessary, even before the will is admitted to probate.

There are, however, certain cases in which the executor is not required to produce his letters testamentary in order to recover. He may maintain trover before probate for goods of the testator taken out of his possession, for in such a case the profert of letters testamentary is not necessary, such action being founded on his possession: Rand v. Hubbard, 4 Met. 252. Indeed, any action founded on his own possession, such as trespass, detinue, or replevin, for goods or cattle taken after the testator's death, could be maintained by an executor prior to the probate of the will: Hathorn v. Eaton, 70 Me. 219. Even such personal effects as never came into his actual possession, but which had been taken and converted after the testator's death, he could sue for in trespass or trover without producing letters testamentary: Hathorn v. Eaton, 70 Me. 219; Baldwin v. Buford, 4 Yerg. 16. He might also sue on any contract made with him after the testator's death: Baldwin v. Buford, 4 Yerg. 16; Gordon v. Woods, 4 Bibb, 476. Where the local practice did not require a profert of letters testamentary in order to declare, an action could regularly be commenced before the will had been proved: Strong v. Perkins, 3 N. H. 517.

An Administrator, Before Administration is Granted to Him, can do nothing, because he derives his authority entirely from the appointment by the court: Rand v. Hubbard, 4 Met. 252; Vroom v. Van Horne, 10 Paige, 549, 42 Am. Dec. 94. Although the administrator has no power prior to the grant of administration, yet when

be does receive his appointment, his title to the decedent's property relates back to the time of such decedent's death, and validates all acts done before the grant of letters which are within the scope of the administrator's authority and which are beneficial to the estate: Globe Accident Ins. Co. v. Gerish, 163 Ill. 625, 54 Am. St. Rep. 486; Alvord v. Marsh, 12 Allen, 603; Priest v. Watkins, 2 Hill, 225, 38 Am. Dec. 584; Cook v. Cook, 24 S. C. 201. The rule that the letters of administration relate back to the death of the intestate and legalize intervening acts is admitted for the purpose of supporting the rights of the intestate, and of ratifying acts for the benefit of his estate, and giving a remedy where otherwise there would be none: Leber v. Kauffelt, 5 Watts, & S. 440.

Pending the Contest of a Will, an Executor Has Power to perform all those acts which he has general power to perform, provided he has received letters testamentary. Hence, where an executor has obtained letters testamentary on a supposed will, and subsequently another will is produced, he is not deprived of his power to perform the usual acts of an executor, notwithstanding the pendency of litigation respecting the validity of the will: Bradford v. Boudinot, 3 Wash. C. C. 122. If the executor had not received his appointment, it seems doubtful just how extensive his powers were. His powers being derived from the will and not from its probate, his acts pending a contest would certainly be valid and binding if the will should be sustained. If letters of administration pendente lite had been granted to him or to another, such letters conferred limited powers, and the executor's powers were temporarily suspended: Syme v. Broughton, 86 N. C. 153; In re Flandrow, 92 N. Y. 256. An executor certainly has the power to defend the will in any contest about it: Brown v. Gibson, 1 Nott & McC. 326. And the executor is in such privity with the testator that, in a proceeding to revoke the probate of a will, he can invoke the benefit of the heir's covenant not to contest the will: Estate of Garcelon, 104 Cal. 570, 43 Am. St. Rep. 134. The executor, however, is not obliged to assume the burden of the expense of a will contest, but may properly throw it upon the legatees or devisees: Andrews v. Andrews, 7 Ohio St. 143.

Support of Decedent's Family.-An executor, as such, has no rights as guardian, nor has he any authority over the minor children of his testator: Boyd v. Glass, 34 Ga. 253, 89 Am. Dec. 252. Executors and administrators are merely legal trustees for the creditors and heirs of the decedent. Not being the guardian of the decedent's children, they can incur no fiduciary liability on their account. As was said in Menifee v. Ball, 7 Ark. 520: "It would be a breach of trust for them to expend any of the effects of the estate for their benefit. The care of the children is entirely out of their province. That devolves upon their guardians." If the estate is insolvent, it is a devastavit for the executor to give any of the personal estate to support the widow or children: Billing