§ 1503. As to right or duty of personal representative to plead Statute of Limitations or of Frauds.

§ 1504. Claims must be pro rated when estate is insolvent. § 1505. Duty of personal representative regarding uncompleted contracts of decedent.

§ 1506. No authority to carry on business of decedent: Personally liable on new contracts.

§ 1507. The same subject: Effect of such power given by will or consent of beneficiaries.

§ 1508. No authority to expend funds of estate for improvements. § 1509. Personal representative can not deal with assets of estate to his personal benefit.

§ 1510. Duty of personal representative as to investing the funds of the estate.

§ 1511. Personal representative depositing funds of estate in his own name is liable for any loss.

§ 1512. Effect of unduly delaying settlement of estate: Chargeable with interest.

§ 1513. Personal representative is chargeable with compound interest if he uses funds of estate for personal benefit. § 1514. The same subject: Liability not dependent upon profit. § 1515. Use of real property, personal representative charged with annual rent, compounded annually.

§1483. Nature of Duties and Care Required of Personal Representative.

The duties of the personal representative, except where additional powers are granted to an executor by the will of the decedent, are to collect the assets, pay the debts, and distribute the residue. An executor must conserve, administer and distribute the estate according to the provisions of the will.1 Where a trust is created by the will of the decedent, it is usual to appoint a trustee to administer the same, which trustee may be the one named as executor. The administration of the trust is a matter

1 Tapley v. Douglass, 113 Me. 392, 94 Atl. 486.

separate and distinct from the administration of the estate; however, the executor nominated in the will or his successor legally appointed, if the will so provides, may, as such executor, hold and administer the testamentary trust ex officio or virtuti officii.2

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It is the duty of the representative to administer the estate within the time and in the manner provided by law, and if he fails to do so the burden is upon him to give a reasonable excuse for such failure. The degree of care, diligence and prudence required of an executor or administrator is that which an ordinary man would exercise in the transaction of his own business. An executor is not liable for failure to obtain the highest price for property sold by him and belonging to the estate, if he uses such care and prudence as an ordinary man would exercise in the conduct of his own affairs."

§ 1484. The Same Subject: Instituting Legal Proceedings.

The duty imposed upon the personal representative to collect the assets of the estate does not merely mean that they must be reduced to possession. If the assets consist of obligations which can be enforced, it is the duty of the

2 Kidwell v. Brummagim, 32 Cal. 436; Tuckerman v. Currier, 54 Colo. 25, Ann. Cas. 1914C, 599, 129 Pac. 215; Johnson v. Lawrence, 95 N. Y. 154; In re McAlpine (McAlpine v. Potter), 126 N. Y. 285, 27 N. E. 475.

3 Larsh v. McClelland, 194 Ill. App. 38.

4 Young v. Ray, (Mo. App.) 193 S. W. 608; In re Bush's Estate, 89 Neb. 334, 131 S. W. 602; In re Brower, 71 Misc. Rep. 398, 130

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representative, if they can not be collected without suit, to take the usual legal proceedings to enforce them. The representative has the authority and it is his duty to recover all claims due the estate. An executor or administrator should, in those jurisdictions where he is considered the representative of the creditors, commence proceedings to set aside any conveyance made by the deceIdent in his lifetime to defraud creditors.8 In such an action, however, the right of possession is in the grantee until the termination of the suit.

§1485. What Are Generally Considered Assets of the Estate.

All property owned by a decedent at the time of his death may, generally speaking, be said to be assets of his estate. A debt due from the executor or administrator to the decedent is an asset in the hands of the representative applicable to the payment of debts;10 and in a general

Ehblad v. Hanson, 85 Kan. 541, 117 Pac. 1028.

7 Fletcher v. Elosser, 126 Md. 244, 94 Atl. 776.

Where it appears on the face of a judgment that deceased is the sole owner or the beneficial owner, his personal representative may recover the same.Brown v. Harding, 171 N. C. 686, 89 S. E. 222.

8 See § 1258; Shiels v. Nathan, 12 Cal. App. 604, 108 Pac. 34; Beswick v. Churchill Co., 22 Cal. App. 404, 134 Pac. 722; Daniels V. Spear, 65 Wash. 121, 117 Pac. 737.

It is the duty of an administrator to commence proceedings to

set aside a fraudulent conveyance upon written request of an interested party and upon being indemnified against loss and costs. In re McCluskey, 116 Me. 212, 100 Atl. 977.

It is not within the power of an executor or administrator to ratify a deed made by the decedent while insane to such executor or administrator as grantee, and by such ratification prejudice the heirs.-Brown v. Brown, 209 Mass. 388, 95 N. E. 796.

9 Daniels v. Spear, 65 Wash. 121, 117 Pac. 737.

10 United States v. Eggleston, 4 Saw. (U. S.) 199, Fed. Cas. No. 15027; United Brethren First

sense every part of the estate which under the law comes to the personal representative is an asset of the estate.11 The proceeds recovered under a judgment in a suit upon an appeal bond given in an action to recover property alleged to belong to the estate, are assets of the estate and should be paid to the personal representative even though the suit was instituted by heirs of the decedent.12 A claim for damages for personal injuries caused by the negligence or wrongful act of another is an asset of the estate.18 A policy of insurance payable to and collectible by the estate is an asset thereof, even though it may be exempt from execution and may thereafter be set aside to the widow.14

It is only property in which the decedent had a beneficial interest at the time of his death, or proceeds from such property, that may be considered assets. Property

Church v. Akin, 45 Ore. 247, 2 Ann. Cas. 353, 66 L. R. A. 654, 77 Pac. 748.

11 Washington v. Black, 83 Cal. 290, 295, 23 Pac. 300.

Where an administrator takes possession of property of the deceased in a foreign jurisdiction and brings it within the jurisdiction of the court appointing him, it is properly chargeable to him as an asset to be administered according to the laws of the local jurisdiction.-Wyatt v. Wilhite, 192 Mo. App. 551, 183 S. W. 1107. As to foreign and ancillary administration, see §§ 1368-1391.

Money given by a corporation to the widow of deceased, who has been employed by the corporation, is not chargeable to her

as an asset of the estate.-Currie v. Bennett, 111 Miss. 584, 71 So. 830.

12 Bem v. Shoemaker, 10 S. D. 453, 74 N. W. 239.

13 Missouri Pacific Ry. Co. v. Bennett's Estate, 5 Kan. App. 231, 47 Pac. 183.

14 Estate of Miller, 121 Cal. 353, 53 Pac. 906; Holmes v. Marshall, 145 Cal. 777, 780, 104 Am. St. Rep. 86, 2 Ann. Cas. 88, 69 L. R. A. 67, 79 Pac. 534.

See, also, § 1419.

As to the distinguishing features regarding benefits arising from a policy of life insurance, see §§ 258-260.

As to benefits arising from membership in a mutual benefit society, see § 261.

which the decedent held in trust only or as the bailee or factor of another is not an asset of his estate.1 15 It is, however, within the powers or duties of the personal representative to maintain the right of the estate to the trust property until it has been judicially determined that it does not belong to the estate. 16 And property disposed of by the testator during his lifetime as a valid gift mortis causa vests at his death in the donee and is not subject to administration.1

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§ 1486. Debt of Personal Representative to Decedent an Asset. The common law rule that the appointment by the testator of his debtor as the executor of his last will was an extinguishment of the debt does not prevail in the United States. As to an administrator, his appointment has never been held to be a release of the debt.18 There is a conflict of authority regarding the liability of the sureties on the bond of an executor or administrator if he fails to pay his obligation to the estate, the better rule being that they are liable only to the extent of his ability to pay the same at any time during administration.19 But a debt due from the personal representative to the decedent is always considered as an asset of the estate and it is the duty of the representative to charge himself in his account with such debt.20

15 Elizalde v. Murphy, 11 Cal. App. 32, 103 Pac. 904; In re Belt's Estate, 29 Wash. 535, 92 Am. St. Rep. 916, 70 Pac. 74.

16 Elizalde v. Murphy, 11 Cal. App. 32, 103 Pac. 904.

17 Deneff v. Helms, 42 Ore. 161, 70 Pac. 390.

As to donations mortis causa generally, see §§ 191-226.

18 See § 1213.

19 Wachsmuth v. Penn Life Insurance Co., 241 Ill. 409, 132 Am. St. Rep. 228, 26 L. R. A. (N. S.) 411, 89 N. E. 787; McEwen v. Fletcher, 164 Iowa 517, Ann. Cas. 1916D, 631, 146 N. W. 1.

On this subject see § 1363. 20 Schmelz's Admr. v. McMenanin, 119 Va. 227, 89 S. E. 126.