CHAPTER LVI. POWERS OF PERSONAL REPRESENTATIVE AS TO REALTY AND PERSONALTY. § 1459. General purposes of administration. § 1460. Title to personalty vests in the personal representative: Common law rule and statutory changes. § 1461. The same subject: Modern rule. § 1462. How equity considers the title of the personal representative to the personalty. § 1463. Right of personal representative to sell the personal property of the estate. § 1464. The same subject: Statutory regulations. § 1465. Real property liable for decedent's debts when the personalty is insufficient. § 1466. The same subject: Distinction between debts of decedent and expenses of administration. § 1467. Interests in mortgages, leaseholds, and contracts of sale and purchase of realty, how considered. § 1468. Common law rule is that realty passes directly to the heir or devisee, subject to the right of dower, etc. § 1469. Provisions of owner's will may give executor powers as to realty. § 1470. Effect of equitable conversion of realty into personalty and of personalty into realty by direction of testator in his will. § 1471. The same subject: When purpose is satisfied by a portion of proceeds of sale, balance retains its original character. § 1472. Personal representative may exercise regarding realty only those powers conferred by statute or by will of decedent. § 1473. Statutes which merely subject realty to payment of debts vest no title in the personal representative. §1474. The same subject: Heir or devisee may be divested of rights in the realty. § 1475. Statutes may give the personal representative the right of possession of the realty. § 1476. Executor by provisions in will may be vested with power to sell realty: Power may be implied. § 1477. Power to mortgage not generally implied because power to sell is granted. § 1478. Effect where will directs executor to distribute estate in a particular manner. § 1479. The same subject: Reconversion and sale in partition, § 1480. Effect of testator in his will charging the realty with payment of debts and legacies. § 1481. Manner in which power of sale may be exercised. § 1482. Time when power of sale must be exercised. §1459. General Purposes of Administration. The matter of the administration of the estate of decedents is one of statutory regulation, and the policy and intent of such statutes is that property owned by a decedent at the time of his death shall, except in those instances where title thereto passes by operation of law to another, be subjected to the process of administration in the probate court. There seems to be no other method provided whereby the existence of creditors and heirs of decedents may be conclusively established.1 Statutes providing for the administration of estates of decedents con 1 Estate of Strong, 119 Cal. 663, 51 Pac. 1078. As to the necessity of the administration of estates, see § 1180. As to the legality of acts of an administrator prior to his appointment, see § 1343. As to the powers of an executor before probate, see §§ 1344, 1345. As to liabilities of an executor de son tort, see §§ 1254-1275. template such administration shall be terminated as soon as practicable. The executor or administrator must collect the debts due the estate and take possession of the tangible assets; and he must also, if he has funds so to do, pay the debts of the decedent and the expenses of administration. As soon as the estate is in a position to be closed, the executor or administrator must render his final account and cause the residue of the estate to be distributed to those entitled thereto. This should be accomplished with reasonable dispatch." § 1460. Title to Personalty Vests in the Personal Representative: Common Law Rule and Statutory Changes. Administration first affected only personal property. The personal estate of a man dying intestate was first under the jurisdiction of the Crown, and later under the ecclesiastical courts. Still later the ordinary was permitted to grant administration to the widow of the decedent or next of kin, or both at his discretion. The residue of the personalty of the intestate, after the payment of all debts, charges and funeral expenses, was vested in the ordinary; but in 1670 it was enacted that such surplus should go to the widow, children, or next of kin. The early rule was that upon marriage the legal existence of a woman was suspended and merged into that of her husband, and she could make no testamentary disposition of personalty without her husband's consent." Regarding an executor, the early rule was that he was vested with absolute title and ownership to all the per 2 Maddock v. Russell, 109 Cal 417, 42 Pac. 139. * See § 1182. 4 See § 1181. See § 301. As to legal disabilities of mar ried women generally, see §§ 301811 sonal property of the estate of the decedent and was entitled to retain the surplus remaining after the payment of debts, legacies, funeral charges and the expenses of administration. If the testator appointed an executor without disposing of his personal property or without disposing of all of it, the surplus remaining after paying the legacies and charges was considered as a gift to the executor. This rule was changed in England by the Executor's Act, 1830, statute of 11 Geo. IV and 1 Wm. IV, ch. 40, which enacted that unless the will so provided, the executor took no beneficial interest in the residue, but held the same as trustee for those entitled thereto under the statute of distribution; but the act provided that nothing therein should affect or prejudice the right of an executor in these cases where there was no person who would be entitled to the residue of the testator's estate under the statute of distribution." In the United States the common law rule that either the executor or administrator was entitled to any interest in the residue of the estate receives no recognition, the statutes of distribution universally providing that in case of intestacy or of property undisposed of by will, regarding which the testator in fact dies intestate, the property shall pass to those entitled thereto as set forth in the statutes.8 • Attorney-General v. Hooker, 2 P. Wms. 338, 340; Southcot v. Watson, 3 Atk. 226, 228; Urquhart v. King, 7 Ves. Jun. 225. 7 Read v. Stedman, 26 Beav. 495; Hawkins v. Hawkins, 7 Sim. 173; In re Bacon's Will (Camp v. Coe), 31 Ch. Div. 460; In re Knowles (Roose v. Chalk), 49 8 Sinnott v. Kenaday, 14 App. Cas. (D. C.) 1; Chamberlin's Appeal, 70 Conn. 363, 41 L. R. A. 204, 39 Atl. 734; Hays v. Jackson, 6 Mass. 149, 152; Wood v. Donaldson, 87 Mo. App. 1; Paup's Admr. v. Mingo, 4 Leigh (Va.) 163. § 1461. The Same Subject: Modern Rule. Upon the death of one owning personal property, if no administration be had and the time for granting administration has expired, it may be said that title to the personalty passes to the next of kin; and it may also be said that for certain purposes, even should administration be had, the title to personalty passes to the next of kin or distributees by relation as of the date of the death of the owner. But until the estate is settled and distributed, the next of kin or distributees are not entitled to the possession of personal property of the estate of the decedent. The next of kin or legatees take no title or ownership to the personal property of the estate while it is subject to administration." The transfer of the title to personal property of a decedent is accomplished through the instrumentality of the probate court, the title to such property vesting by operation of law in the executor or administrator, and distributees must derive title through him. He is the only one recognized by law as having the title to the personal 9 Burnes v. Burnes, 137 Fed. 781, 70 C. C. A. 357; Ives v. Beecher, 75 Conn. 153, 52 Atl. 746; Harrell v. Harrell, 123 Ga. 267, 51 S. E. 283; Irwin v. Sample, 213 Ill. 160, 72 N. E. 687; Stahl v. Brown, 72 Iowa 720, 32 N. W. 105; Van Aken v. Clark, 82 Iowa 256, 48 N. W. 73; Blackman v. Baxter, 125 Iowa 118, 2 Ann. Cas. 707, 70 L. R. A. 250, 100 Pac. 75; Merrill v. Wooster, 99 Me. 460, 59 Atl. 596; Flynn v. Flynn, 183 Mass. 365, 67 N. E. 314; Schrafft v. Wolters, 61 N. J. Eq. 467, 48 Atl. 782; Garvey v. U. S. Fidelity etc. Co., |