ment against the executrix, even in her personal capacity, where the court has acquired no jurisdiction over her. In such a case the proceedings cannot be amended and a personal judgment entered against the executrix: Renwick v. Garland, 1 Cal. App. 237; 82 Pac. Rep. 89, 90. The executor or administrator of the decedent has no power to bind the latter's estate by any note or bill he may make in his representative capacity. So, also, is it impossible for the executor or administrator to bind the estate by the acceptance of a bill drawn in settlement of a claim against the estate. In all such cases the executor or administrator is personally answerable, even though his signature is stated in the most explicit manner to have been made in his representative capacity: First Nat. Bank v. Collins, 17 Mont. 433; 43 Pac. Rep. 499. An executor may disburse and use the funds of the estate for purposes authorized by law, but may not bind the estate by an executory contract, and thus create a liability not founded upon a contract or obligation of the testator. Where a complaint charges the execution of the contract by an administrator in his individual capacity, it binds him individually, although it relates to matters connected with the estate; and where he enters into a contract upon a consideration executed subsequently to the death of the decedent, it is deemed his individual contract: Painter v. Kaiser, 27 Nev. 421; 76 Pac. Rep. 747, 749 (showing many forms in which this doctrine has been applied). If complaint is made against an executrix personally, she is liable individually on a contract made by her personally, and before her appointment as executrix, by which she agreed that, after her appointment, she would, without any decree of distribution, pay to the plaintiff, and the other legatees named in the will, the amount of their representative proportions of money which might come into her hands in excess of five thousand dollars: Painter v. Kaiser, 27 Nev. 421; 76 Pac. Rep. 747, 748. If an executor fraudulently induces an heir to loan him a sum of money bequeathed to her, but to which she is not entitled until she reaches twenty-one years of age, and the evidence shows that the executor procured the loan by concealing from the heir his failing financial condition, and by misleading her in other respects, the transaction is not only questionable, but absolutely void, and the executor cannot obtain his discharge so as to release the sureties on his bond until he has complied with the order of the court to deliver all property of the estate to the parties entitled thereto: Ehrngren v. Gronlund, 19 Utah, 411; 57 Pac. Rep. 268.

REFERENCES.

Liability of estate for commissions of broker or agent, who sells property: See note 64 L. R. A. 555-557. Individual liability of personal representatives under original contracts founded on a new consideration: See note 1 Am. & Eng. Ann. Cas., 769.

Probate 71

(6) Mingling trust funds. The mere fact that an executor or administrator mingles the profits of a sale of the estate he represents with his own funds does not justify charging him with interest thereon, because he has a right to their custody, and there is no provision of law which requires him to keep them separate from all other funds: Estate of Sarment, 123 Cal. 331, 333; 55 Pac. Rep. 1015. The limit of the liability of a trustee for mingling trust funds with his own, and for use in his own business, where it is not shown that a larger profit was realized therefrom, is the return of the principal, with legal interest thereon compounded annually. This rule is applicable alike to guardians and executors as to other trust relations: Estate of Dow, 133 Cal. 446, 450; 65 Pac. Rep. 890; Estate of Hamilton, 139 Cal. 671; 73 Pac. Rep. 578.

REFERENCES.

Liability for mingling trust funds: See head-line 5, post.

(7) Rents, issues, and profits. An executor or administrator is answerable for the rents and profits of decedent's land, where he occupies and uses it as his own: Walls v. Walker, 37 Cal. 424, 431; Estate of Misamore, 90 Cal. 169; 27 Pac. Rep. 68. But he is entitled to receive the rents and profits of the real estate of the decedent, accruing after the latter's death, until the estate is settled, or until delivered by order of the court to the heirs or devisees. Such rents and profits are assets of the estate: Washington v. Black, 83 Cal. 390; 23 Pac. Rep. 300, 301.

(8) Bad loans. In lending money on a mortgage of real estate, a degree of care is necessary, which, if omitted, will render the executor or administrator liable personally. If an executor lends funds on real estate, he must use care as to the title, and ascertain that the value of the premises mortgaged is such as will, in all probability, be adequate security for repayment whenever the money shall be called in. If this is not done, and loss ensues, the executor or administrator is answerable therefor: In re Roach's Estate (Or.), 92 Pac. Rep. 118, 123; Estate of Holbert, 48 Cal. 627, 629 (showing circumstances under which he is and under which he is not answerable for loss, especially where he takes a second mortgage as security for the loan, or no security at all.

(9) Failure of bank. If an executor or administrator deposits the moneys of an estate in a bank, but allows it to remain after the time when, if he had fulfilled his duty, it would have been distributed and in the hands of those entitled, and the money is lost through a failure of the bank, he and his sureties are liable therefor, and the sum lost constitutes the measure of damages: McNabb v. Wixom, 7 Nev. 163,

171. If an executor or administrator, with moneys of the estate in his hands, deposits them in his own name in a bank or other institution which fails, without in some way designating such moneys as trust property, the loss must fall upon him. And his liability will not depend upon the good faith, prudence, or judgment with which apparently he may have acted, nor upon the fact that he may have disposed of his own funds in the same way: Estate of Arguello, 97 Cal. 196, 200, 202; 31 Pac. Rep. 937. But, under the uniform holding of courts that executors, administrators, and guardians are bound by no greater or higher responsibility than that which is imposed upon any agent or trustee, if such a one, in good faith, deposits money in a bank of good repute to the trust account, he ought not to be held liable for its loss in consequence of the failure of the bank: In re Kohler's Estate, 15 Wash. 613; 47 Pac. Rep. 30, 31.

REFERENCES.

Deposit of trust funds in bank by executors or administrators: See note 98 Am. St. Rep. 371-377. Liability of executor or administrator for loss of bank deposit: See note 7 L. R. A. (N. S.) 617-619.

(10) Failure to collect. An executor or administrator is chargeable not only with the assets which come into his possession, but also those which by negligence he has failed to collect: Estate of Kennedy, 120 Cal. 458, 461; 52 Pac. Rep. 820; Maddock v. Russell, 109 Cal. 417; 42 Pac. Rep. 139. And he is also personally liable for loss by his purchase of unsecured, uncollectable notes: In re Roach's Estate (Or.), 92 Pac. Rep. 118. Where the executor or administrator has a note in his individual possession, and he allows an action on the same to become barred by the statute of limitations, the delay not being in consequence of any mistake in law or of advice given by an attorney, it is a simple failure on the part of the executor or administrator to do his duty, and he is answerable to the estate for the loss occasioned by his negli gence in allowing the note to become outlawed: Estate of Sanderson (Cal.), 13 Pac. Rep. 497, 498; 74 Cal. 199, 203; 15 Pac. Rep. 753. He is not chargeable with a failure to collect, however, unless it is shown that it was possible for him to collect: Estate of Moore, 72 Cal. 335; 13 Pac. Rep. 880. The mere failure to sue upon a note is not, of itself, negligence. It is only the failure to proceed when a reasonable prospect of collection is apparent that constitutes negligence: Elizalde v. Murphy, 4 Cal. App. 114; 87 Pac. Rep. 245, 246. The failure to "push" the collection of a note may be negligence, but is not necessarily so. The executor or administrator is not answerable with respect to a note uncollected without his fault: Estate of Moore, 96 Cal. 522, 525; 32 Pac. Rep. 584. An executor should make all reasonable exertion to collect even desperate debts due to an estate, but should only be held for moneys uncollected, when it appears that they were lost by his

want of proper management or effort; and the burden of proving that debts might, by proper effort, have been collected, lies with those who seek to make the executor liable for the loss: Estate of Millenovich, 5 Nev. 161, 184.

(11) Losses through neglect. An executor or administrator is chargeable with losses to the estate, occasioned through his neglect: Estate of Carver, 123 Cal. 102, 104; 55 Pac. Rep. 770. Whenever he does what the law prohibits, or fails to exercise reasonable care and diligence in the endeavor to do what the law enjoins, he and his sureties are liable for the damages consequent upon such act or omission: McNabb v. Wixom, 7 Nev. 163, 171. An administrator is answerable to the heirs of the deceased for money or other property that came into his hands, which, through his act or omission, has been lost to the estate: Callan v. Savidge, 68 Kan. 620; 75 Pac. Rep. 1010. And an executor or administrator is not necessarily to be charged with negligence in paying out more to redeem pledged personal property than the property is worth. The question of negligence depends upon the proof: Estate of Armstrong, 125 Cal. 603, 606; 58 Pac. Rep. 183. Nor is negligence to be imputed to an administrator for his failure to object to the proof of payment of taxes actually paid by a mortgagee, because the complaint did not allege such payment: Estate of Armstrong, 125 Cal. 603, 606; 58 Pac. Rep. 183. An executor or administrator is answerable for a loss to the estate he represents, arising from his failure to foreclose a mortgage taken as security for a loan of moneys of the estate, and allowing the statute of limitations to bar a recovery: In re Roach's Estate (Or.), 92 Pac. Rep. 118, 125. An executor or administrator should not be charged with the loss arising from his failure to collect rents, or for his failure to lease lands of the estate for a larger rent, where such failure is not due to the lack of ordinary care and diligence on his part in the management of the business of the estate: Estate of Moore, 96 Cal. 522, 525; 32 Pac. Rep. 584.

REFERENCES.

Liability of an executor or administrator for negligence: See note 14 Am. Dec. 65, 66.

And

(12) Personal injuries. Conduct of decedent's business. An ex cutor or administrator cannot commit a tort in his representative capacity, so as to charge the estate. If he commits a trespass, it is his individual and personal act, and not his representative act. if he is carrying on the business of the decedent, he is individually answerable to a third person injured through the negligence of his servant employed in the business while acting within the scope of his employment: Kalua v. Camarinos, 11 Haw. 557, 558, 559.

(13) Liability for taxes. An executor or administrator is answerable for the value of certain real property lost to the estate by his neglect to pay the taxes thereon: Estate of Herteman, 73 Cal. 545, 546; 15 Pac. Rep. 121. The liability of an executor or administrator for taxes due on the estate he represents is official and not personal; and, upon his resignation or discharge, such liability is assumed by his successor in the same manner as is any other obligation of the estate: San Francisco v. Pennie, 93 Cal. 465; 29 Pac. Rep. 66, 69; but the extent of his representative accountability or liability for the property in his official capacity does not affect the question of its being liable to taxation. Though he has not the possession, yet he has a control, in so far that he may pay the lien, and would then be entitled to possession and absolute control: Stanford v. San Francisco, 131 Cal. 34, 36; 63 Pac. Rep. 145. An executor or administrator cannot be charged with notice of unpaid taxes on property which the deceased had conveyed in his lifetime, and in and to which he had no interest at the time of his death, and which did not become property of the estate or come into the custody of the executor or administrator: Clayton v. Dinwoodey (Utah), 93 Pac. Rep. 723, 726.

3. Instances of non-liability. Under the rule that an executor or administrator is not answerable for the loss of property, so long as he acts in good faith and with ordinary discretion, he is not answerable for money lost to the estate by the death or insolvency of an agent employed in another state to receive and forward to him money belonging to the estate, where such agent came well recommended to him: Estate of Taylor, 52 Cal. 477, 479. He is not negligent for his failure to have mortgaged property appraised, where it appears that it would be a useless expense: Estate of Armstrong, 125 Cal. 603, 608; 58 Pac. Rep. 183. An executor is not liable in lawful detainer for rent: Martell v. Meehan, 63 Cal. 47, 50. Nor is an administrator to be charged with the value of the property sold under an order of the probate court, without proof of any fraud whatever on the part of the administrator: Richardson v. Sage, 57 Cal. 212, 214. An executor or administrator, in the entire absence of proof, or presumption of advantage to himself, or of want of neglect of official duty, is not liable for punitory damages: Wheeler v. Bolton, 92 Cal. 159, 174; 28 Pac. Rep. 558. An executor or administrator cannot impose any liability on the estate by making, drawing, accepting, or indorsing any bill or promissory note, though he has authority to indorse negotiable instruments for the purpose of transferring the decedent's title when a transfer is necessary or proper. But such indorsement operates no further, so far as the estate is concerned, than to effect a transfer of title, and any liability which may arise on the indorsement is the personal liability of the executor or administrator. Where a man, after his wife's death, renewed notes previously executed by him