the will to perform certain acts, such as the selling of realty, there is no reason why the estate should be burdened with the expense of a judicial sale;22 nor would any order of court add validity to the conveyance which the executor may execute upon disposing of the property.23

The testator may authorize his executor to sell property of the estate either at public auction or private sale, which leaves the manner of sale discretionary with the executor. A like discretion exists if no directions are given regarding the mode of consummating the sale. If the testator directs the manner in which the sale shall be made, the executor is required to follow such directions.24 If the testator merely makes suggestions or tenders advice as to the manner of sale, then the executor may use his discretion the same as if no directions were

As to the power of an administrator with the will annexed to sell property under provisions of the will, see §§ 1242-1244.

22 Matter of Davids, 5 Demarest (N. Y.) 14, 5 N. Y. St. Rep. 357. 23 Going v. Emery, 16 Pick. (Mass.) 107, 26 Am. Dec. 645.

24 Schlicker v. Hemenway, 110 Cal. 579, 52 Am. St. Rep. 116, 42 Pac. 1063; Napier v. Napier, 89 Ga. 48, 14 S. E. 870; Hetzel v. Barber, 69 N. Y. 1.

Where the testator directed that a trust be created and the property sold, it was not a compliance with the will for the executors to form a corporation and convey the property of the estate to the corporation in return for its stock, and such action is beyond their

authority and void unless consented to by all of the parties in interest. Schoellkopf Holding Co. v. Kavinoky, 216 N. Y. 507, 111 N. E. 60.

Where the testator's will, although authorizing his executors to sell his realty, does not authorize them to give a warranty, and the executors, after advertising the sale as under the provisions of the will, execute deeds contain. ing a warranty "as executors," they are not personally liable, as the warranty is without consideration, is made in a representative capacity, and does not injure the purchaser. Ivey v. Vaughan, 93 S. C. 203, Ann. Cas. 1914 D, 900, 43 L. R. A. (N. S.) 377, 76 S. E. 464.

given. In such cases the executor is merely required to proceed in the manner he deems most advisable.25

§1482. Time When Power of Sale Must Be Exercised.

The time when the executor shall exercise a power of sale given him by the testator in his will may be fixed by provisions in the will or may be left to the executor's discretion. As a general rule the time of sale is discretionary with the personal representative when no time is fixed in the will.26 If the executor has discretion in the matter, the mere fact that he fails to sell the realty at a time when a high price is offered and subsequently sells it at a lower price, does not necessarily render him liable to the estate for the difference.27 The rule, however, is that the sale must be made within a reasonable time, a matter which depends largely upon the circumstances of the particular case, but which is limited to an extent by the time within which the executor is required to account.28

It often happens that no time is designated in the will within which or after which the sale shall be made. In such a case the intention of the testator is to be drawn from the provisions of the will, especially those which. specify the purpose for which the sale is to be made. The intention of the testator, if it can be ascertained,

25 Ingham v. Ryan, 18 Colo. App. 347, 71 Pac. 899; Buckingham v. Wesson, 54 Miss. 526; Hatt v. Rich, 59 N. J. Eq. 492, 45 Atl. 969; Judevine's Exrs. v. Judevine, 61 Vt. 587, 7 L. R. A. 517, 18 Atl. 778; Sharp v. Greene, 22 Wash. 677, 62 Pac. 147.

26 Busch v. Rapp, 23 Ky. L. Rep. 605, 63 S. W. 479; Matter of

Ryder, 41 App. Div. (N. Y.) 247, 58 N. Y. Supp. 635; Wimbish v., Rawlins' Exr., 76 Va. 48.

27 In re Lester (In re Hull's Will), 172 App. Div. 509, 158 N. Y. Supp. 763.

28 Matter of Gray, 91 N. Y. 502; Erie Dime Sav. etc. Co. v. Vincent, 105 Pa. St. 315.

must govern.29 If, however, it does not appear that the intention of the testator was to absolutely limit the time within which the sale had to be made, such sale may be made within a reasonable time, even after the apparent time limit has expired.30 Where the executor fails to make the sale within the time required by the provisions of the will, a court of equity may compel the sale even after the specified time.31 No power of sale, however, granted to an executor by virtue of his office, can be exercised by him after the office has terminated.32

Where the provisions of the will direct that the sale is to be made at some fixed time after the testator's death or upon the happening of some contingency, the general rule is that the executor is without authority to make a sale prior to such time, and if he does so the sale is void. If the sale is authorized only for a particular

29 Egerton's Admr. v. Conklin, 25 Wend. (N. Y.) 224.

30 See, generally, Molton v. Sutphin, 66 N. J. Eq. 20, 57 Atl. 974; Spitzer v. Spitzer, 38 App. Div. (N. Y.) 436, 56 N. Y. Supp. 470; Mott v. Ackerman, 92 N. Y. 539; Myers v. Cady, 22 R. I. 549, 48 Atl. 797.

31 Marsh v. Love, 42 N. J. Eq. 112, 6 Atl. 889.

32 Goad v. Montgomery, 119 Cal. 552, 63 Am. St. Rep. 145, 51 Pac. 681; Boland v. Tiernay, 118 Iowa 59, 91 N. W. 836.

33 Johnstone v. Baber, 8 Beav. 233; Bristow v. Skirrow, 27 Beav. 590; Coxe v. Day, 13 East 118; Want v. Stallibrass, L. R. 8 Exch. 175; Massey v. Modawell, 73 Ala. 421; Fowler v. Mercer's Exrs., 170

Ky. 353, 185 S. W. 1117; Petit v. Flint etc. R. Co., 114 Mich. 362, 72 N. W. 238; Hatt v. Rich, 59 N. J. Eq. 492, 45 Atl. 969; Ryan v. Dodds, 65 N. J. Eq. 436, 56 Atl. 131; Ayers v. Courvoisier, 111 App. Div. (N. Y.) 97; Ervine's Appeal, 16 Pa. St. 256, 55 Am. Dec. 499.

If all interested parties consent to a sale prior to the time fixed in the will, no one can complain.— Snell's Exrs. v. Snell, 38 N. J. Eq. 119; Kilpatrick v. Barron, 125 N. Y. 751, 26 N. E. 925.

Where the will authorizes the executor to sell only in the event of a contingency, equity will enjoin a sale attempted to be made before the contingency arises.McClane v. McClane, 207 Pa. St. 465, 56 Atl. 996.

purpose, the executor has authority to sell only when the particular purpose in question is capable of fulfillment. The power of sale continues pending the time that the purpose may be carried into effect;34 but if circumstances arise so that the purpose is impossible of fulfillment, the purpose and the power of sale both are considered as having terminated.85 Where, however, the limitation is that the property must not be sold under a fixed price, if such price is unobtainable within a reasonable time it is held not to preclude the executor from selling.30

34 Hoffman v. Hoffman, 66 Md. 568, 8 Atl. 466.

35 Bates v. Bates, 134 Mass. 110, 111, 45 Am. Rep. 305; Walter v. Tomkins, 71 App. Div. (N. Y.) 21, 75 N. Y. Supp. 557; Trask v.

Sturges, 170 N. Y. 482, 63 N. E. 534; Ward's Lessee v. Barrows, 2 Ohio St. 241; Swift's Appeal, 87 Pa. St. 502.

36 Kurtz v. Graybill, 192 Ill. 445, 61 N. E. 475.

CHAPTER LVIL

GENERAL POWERS, DUTIES AND LIABILITIES OF PERSONAL

REPRESENTATIVES.

§ 1483. Nature of duties and care required of personal representative.

§ 1484. The same subject: Instituting legal proceedings. § 1485. What are generally considered assets of the estate. § 1486. Debt of personal representative to decedent an asset. § 1487. Equitable assets: Liability of sureties as to proceeds of sale of realty.

§ 1488. Claim for damages for death by wrongful act, how considered.

§ 1489. The same subject: Is property within the jurisdiction authorizing the grant of administration.

§ 1490. The same subject: Recovery and release of claim. § 1491. As to property which is not an asset of the estate. § 1492. Liability where personal representative receives property not an asset of the estate.

§ 1493. Torts committed by personal representative render him liable individually.

§ 1494. Notice to creditors and presentation of claims.

§ 1495. Creditor may establish his claim in a court of equity. § 1496. Debt due from a distributee may be retained out of his distributive share.

1497. The same subject: Effect of bankruptcy or the Statute of Limitations.

§ 1498. What debts may be used as a set-off when there are conflicting claims.

§ 1499. The same subject: Mutuality of indebtedness necessary. § 1500. Personal representative may retain assets of estate to

satisfy debt due himself.

§ 1501. Right of personal representative to compromise or compound claims.

§ 1502. Right of personal representative to submit claims to

arbitration.