LIABILITIES AND COMPENSATION OF EXECUTORS AND ADMINISTRATORS. ATTORNEYS' FEES.

I. LIABILITY OF EXECUTORS AND ADMINISTRATORS.

1. In general. An executor or administrator is chargeable not only with the assets which come into his possession, but also with those which, by negligence, he has failed to collect: Estate of Kennedy, 120 Cal. 458, 461; 52 Pac. Rep. 820. He is prima facie liable for such assets of the estate as come into his possession: Wheeler v. Bolton, 92 Cal. 159, 171; 28 Pac. Rep. 558. His liability can only terminate after compliance with the statute, and after a settlement approved by the court has been made, and after discharge and delivery has been ordered by the court: In re Higgins' Estate, 15 Mont. 474; 39 Pac. Rep. 506, 517. One who takes charge of an estate as administrator, and takes possession of the assets of the

estate of his decedent and administers thereon, cannot escape liability by reason of his having failed to take the oath and to file the bond required by law. If he is not an administrator de jure, he is de facto, and may settle the estate, if neither creditors nor heirs object: Harris v. Coates, 8 Ida. 491; 69 Pac. Rep. 475. If an executor, who has money of the estate in his hands, turns it over to his co-executor, and leaves the estate for an indefinite length of time, he is answerable for any misapplication of it by the latter: Estate of Osborn, 87 Cal. 1, 4; 25 Pac. Rep. 157; 11 L. R. A. 264. An administrator de bonis non is answerable only for what he receives. He is not liable for a misappropriation of the moneys received for land sold by a former administrator: Dray v. Bloch, 27 Or. 549; 41 Pac. Rep. 660.

2. Instances of liability.

(1) For entire estate. An executor or administrator is to be charged with all estate coming into his hands, real as well as personal, and at the value of the appraisement: Wheeler v. Bolton, 92 Cal. 159, 174; 28 Pac. Rep. 558; Estate of Fernandez, 119 Cal. 579, 584; 51 Pac. Rep. 851. The statute makes no distinction between real and personal estate, and the rule applicable in the case of loss by him of personal estate should have equal application to the loss of real estate; and if a liability for the loss of personal property is fixed at the date of the loss, so it must be for the loss of real estate: Wheeler v. Bolton, 92 Cal. 159, 174; 28 Pac. Rep. 558. An administratrix of the estate of her deceased husband, such estate being wholly community property, is liable to the extent of such estate to creditors of the community: Carpenter v. Lindauer, 12 N. M. 388; 78 Pac. Rep. 57. The executor or administrator is chargeable with all moneys coming into his hands: Magraw v. McGlynn, 26 Cal. 420, 429; Estate of Sanderson, 74 Cal. 199, 203; 15 Pac. Rep. 753. As to making settlement by legal tender, see Estate of Den, 39 Cal. 70; Magraw v. McGlynn, 26 Cal. 420. An administrator exchanging currency for gold is liable only for the gold received: Estate of Sanderson, 74 Cal. 199; 15 Pac. Rep. 753.

(2) Liability in general. As a general rule, one executor is not answerable for the neglect or bad faith of a co-executor, but where one, by his own negligence, suffers another to waste the estate, when, by the exercise of reasonable diligence, he could have prevented it, he will be held answerable for the loss: Insley v. Shire, 54 Kan. 793; 39 Pac. Rep. 713. An executor or administrator is answerable for an unauthorized expenditure of money. If there is any question of the legality of the outlay, he should protect himself by obtaining an express authorization for the expenditure from the parties in interest: Estate of Kennedy, 120 Cal. 458; 52 Pac. Rep. 820. He is answerable for selling property of the estate under an alleged mutual mistake of

law: Snyder v. Jack, 140 Cal. 584; 74 Pac. Rep. 139, 355. He is also answerable in damages where he makes a fraudulent sale of the decedent's real estate. He is liable in double the value of the land sold, as liquidated damages, to be recovered in an action by the person having an estate of inheritance therein, but his sureties are not so liable: Weihe v. Statham, 67 Cal. 245; 7 Pac. Rep. 673, 676. If an executor expends money in a suit which he commences to recover certain personal property, which he thinks belongs to the estate, and abandons the suit, he is not entitled to reimbursement for such expenditure: Estate of Pease, 149 Cal. 167, 169; 85 Pac. Rep. 149. If an executor wrongfully pays the shares of certain distributees to their pretended attorney, he is answerable for such wrongful payment, notwithstanding a judgment or decree discharging him from all liability to be incurred thereafter: Bryant v. McIntosh, 3 Cal. App. 95; 84 Pac. Rep. 440. If he sells certain cooperage at private sale, at a price in excess of the appraisement, without any order of court, or notice of sale, or order of confirmation, he is chargeable with the excess in actual value at the time of the sale, regardless of the amount received: Estate of Scott, 1 Cal. App. 740; 83 Pac. Rep. 85. He is also chargeable with money given him by decedent, just before the latter's death, and which was not given as a present: Estate of Pease, 149 Cal. 167, 170; 85 Pac. Rep. 149. If a broker is employed to procure a loan for an estate, or to effect a sale of its property, and does all that he was required to do under the contract, and procures a party who is willing and ready to make the loan or to purchase the property, he is entitled to the commission agreed upon; but the executor or administrator of the estate is personally liable therefor, unless there has been an express stipulation that the broker shall be paid only out of the estate: Maxon v. Jones, 128 Cal. 77, 81; 60 Pac. Rep. 516. An executor de son tort is subject to all the liabilities of an ordinary executor without being entitled to any of his privileges: Slate v. Henkle, 45 Or. 430; 78 Pac. Rep. 325, 326. An executor or administrator, as such, has no authority over property that it not assets of the estate; but he is answerable as an individual for wrongfully retaining it: Lazarus v. Carter, 11 Haw. 541, 543.

REFERENCES.

Liability of one executor or administrator for the acts and defaults of another representative: See note 42 Am. Dec. 288-293. Liability of co-executor for default of one permitted to manage estate: See note 11 L. R. A. (N. S.), 296-352. Liability of executor or administrator in a foreign jurisdiction for the property of decedent: See note 32 Am. Dec. 632-633. Liability of executor or administrator for funeral expenses: See note 33 L. R. A. 663-664. Liability of infant as executor or administrator: See note 57 L. R. A. 688-689. Liability of estates of decedents for contracts and torts of executors and admin

istrators: See note 52 Am. St. Rep. 118-135. Liability for the debt of an executor or administrator owing to the estate: See note 112 Am. St. Rep. 406-414. Liability of administrator and his sureties for a debt owing by the former to the estate of his intestate, where the administrator is hopelessly insolvent: See note 61 L. R. A. 313-317.

(3) In what capacity. An executor or administrator cannot bind the assets of the deceased by his promissory note. If he executes a note, and adds to his signature, as executor for" the deceased, he will nevertheless be personally liable. Yet, while the executor or administrator will be personally and alone bound upon the note, if that for which it was given was legally a claim against the estate, the giving and accepting the note will not, without more, discharge the estate. In general, an executor or administrator, like an agent, must expressly limit his promise to payment out of the estate represented, in order to avoid individual liability on it: First Nat. Bank v. Collins, 17 Mont. 433; 43 Pac. Rep. 499, 500. Where the statute does not authorize the administrator either to take possession of the real estate of the intestate, or to collect the rents and profits, but he takes possession thereof, he is not answerable therefor in his fiduciary or representative capacity to the estate: Head v. Sutton, 31 Kan. 616; 3 Pac. Rep. 280, 283. But if an executor or administrator applies to the use of the estate money or the proceeds of property belonging to a third person, he is answerable in both his individual and representative capacity, and the injured party may elect whether he will hold him in the one capacity or in the other; but, having elected to pursue the executor or administrator in his representative capacity, he must take such judgment as the law authorizes in such cases: Collins v. Denny Clay Co., 41 Wash. 136; 82 Pac. Rep. 1012, 1015. An administrator is chargeable in his capacity as administrator with the amount received by him prior to his appointment as administrator: Head v. Sutton, 31 Kan. 616; 3 Pac. Rep. 280, 282.

(4) Liability for costs. The statute provides that when a judgment is given against an executor or administrator, he shall be individually liable for the costs. This provision was adopted by the legislature for the purpose of preventing executors or administrators from wasting the property of estates in speculative or unnecessary litigation, by making them, in every case, individually answerable for the costs recovered against them, and permitting them to recover from the estate only such costs as shall appear to have occurred in the bona fide discharge of their trust: Hicox v. Graham, 6 Cal. 167, 169. Costs in a probate proceeding cannot be allowed to counsel; if allowed at all, they must be awarded to the parties themselves: Henry v. Superior Court, 93 Cal. 569; 29 Pac. Rep. 230, 231. If a judgment for costs is recovered in an action against an executor or administrator, but

such costs are not, by the judgment, made chargeable only upon the estate, the defendant is individually liable for the costs, and plaintiff is entitled to execution therefor: McCarthy v. Speed (S. D.), 94 N. W. Rep. 411, 413. Where plaintiff, in an action against an executor or administrator as such, recovers costs, and has execution issued therefor, the defendant, in his individual capacity, may move the court to vacate and set aside sales made under such execution: McCarthy v. Speed (S. D.), 94 N. W. Rep. 411, 414.

REFERENCES.

Personal liability of executors and administrators for costs: See note 14 L. R. A. 696-707. Liability for costs: See note to § 646, division II, head-line 12, and division III, head-line 8, ante.

(5) Contracts. An executor or an administrator is, in ordinary cases, personally liable upon contracts made by him in his representative capacity, after the death of the person whom he represents, and which are supported by some new consideration: Estate of Page, 57 Cal. 238, 242; Dwinelle v. Henriques, 1 Cal. App. 387, 392. In an action brought by an executrix to recover the possession of land as property of the estate, where it appears that the defendant is in possession under a written lease, executed to him by the plaintiff, therein described as 'the executrix of the will of James Moffitt, deceased," and signed "Mrs. M. M. Moffitt, Etx.,” — giving him the option to purchase the land during the term for the sum of $1,575; and that he afterwards elected to purchase, and paid to the plaintiff, on account, the sum of five hundred dollars, and tendered the balance before the expiration of the term; that, on the faith of the contract, he made permanent improvements on the land, etc.; that plaintiff's testator died seised of the land in question, leaving a will, under which she was the sole residuary legatee; and that, at the time of her agreement to sell the property to the defendant, the time for presentation of claims had passed, and all debts and legacies had been paid, leaving in her hands money much more than sufficient to pay all costs of administration, - the executrix thus became the sole beneficiary of the land in question; and if she was not empowered by the court to sell the land, her contract with the defendant was binding on her personally, and operated as an equitable transfer of the ownership of the property: Moffitt v. Rosencrans, 136 Cal. 416, 418; 69 Pac. Rep. 87. The rule is, that executors and administrators cannot, by virtue of their general powers as such, make any contract which will bind the estate, and authorize a judgment de bonis decendentis, but on contracts made by them for necessary matters relating to the estate they are personally answerable, and must see to it that they are reimbursed out of the estate. On a contract under which an executrix employed the plaintiff to drill a well on the property of the estate, the plaintiffs are not entitled to judg