46

of any dwelling that may be upon the land. If he does not do so and some one is injured thereby, the executor or administrator is liable individually and not in his representative capacity. The fact that the complaint alleges that the property was in the possession of the personal representative in his representative capacity does not necessarily negative his personal liability, and such an allegation may be treated merely as descriptio personae and surplusage.47

If the personal representative employs a servant to perform certain duties in connection with the property of the estate, such as running a passenger elevator,48 or driving a truck,49 the estate will not be held liable for any tort committed by the servant; the liability of the executor or administrator, if any exists, is a personal liability. In such cases he should be held liable only when he has neglected some duty.50 And as a general rule the personal representative can not subject the estate to liability for damages because of his false statements, misstatements or warranties.51

§ 1494. Notice to Creditors and Presentation of Claims. In most jurisdictions statutes have been enacted requiring that the personal representative publish notice to

46 Boston Beef Packing Co. v. Stevens, 12 Fed. 279, 20 Blatchf. 443; Grimes v. Barndollar, 58 Colo. 421, 148 Pac. 256.

47 Ferrier v. Trepannier, 24 Can. S. C. Rep. 86; Shepard v. Creamer, 160 Mass. 496, 36 N. E. 475; Banningan v. Woodbury, 158 Mich. 206, 133 Am. St. Rep. 371, 122 N. W. 531; Belvin's Exrs. V. French, 84 Va. 81, 3 S. E. 891.

Compare: Plimpton v. Richards, 59 Me. 115.

48 Deschler v. Franklin, 11 Ohio Cir. Dec. 188, 20 Ohio Cir. Ct. 56.

49 McCue v. Finck, 20 Misc. Rep. (N. Y.) 506, 46 N. Y. Supp. 242.

50 Fetling v. Winch, 54 Ore. 600, 21 Ann. Cas. 352, 38 L. R. A. (N. S.) 379, 104 Pac. 722.

51 Chaney v. Wood (Ind. App.), 115 N. E. 333.

53

creditors to present their claims to him at a designated place within a time specified by the statute, and claims not so presented usually are held barred. The statutes in each jurisdiction must be specially consulted. The claims referred to are those obligations against the decedent, not the expenses incurred by the personal representative in the administration of the estate.52 It refers to all general debts and obligations of the decedent, including judgments, or a claim regarding which a suit was pending at the time of the decedent's death.54 Claims which depend upon a contingency must be presented the same as any other claim, the only difference being that in some jurisdictions they need not be presented until they become absolute.55 As to claims secured by mortgage, however, the general rule is that the failure to present such a claim does not usually bar the right of the claimant to enforce the same against the property.56 But it is some

52 Savery v. Sypher, 39 Iowa 675; Wakeman v. Paulmier, 39 N. J. L. 340; King v. Battaglia, 38 Tex. Civ. 28, 84 S. W. 839; McLaughlin v. Winner, 63 Wis. 120, 53 Am. Rep. 273, 23 N. W. 402.

53 Beekman v. Richardson, 150 Mo. 430, 51 S. W. 689; Fields v. Mundy's Estate, 106 Wis. 383, 80 Am. St. Rep. 39, 82 N. W. 343.

54 Frazier v. Murphy, 133 Cal. 91, 65 Pac. 326; Holland v. Holland, 131 Ind. 196, 30 N. E. 1075. Compare: Malone v. Hurdley, 52 Ala. 147; Anderson v. Agnew, 38 Fla. 30, 20 So. 766.

55 Jones' Exrs. v. Lightfoot, 10 Ala. 17; Hendricks v. Keesee, 32 Ark. 714; Mackin v. Haven, 187 III. 480, 58 N. E. 448; Whittern v.

Krick, 31 Ind. App. 577, 68 N. E. 694; Security Fire Ins. Co. v. Hansen, 104 Iowa 264, 73 N. W. 596; Stichter v. Cox, 52 Neb. 532, 72 N. W. 848; Field v. Thistle, 58 N. J. Eq. 339, 43 Atl. 1072; South Milwaukee Co. v. Murphy, 112 Wis. 614, 58 L. R. A. 82, 88 N. W. 583.

56 Smith v. Gillam, 80 Ala. 296; McClure v. Owens, 32 Ark. 443; Townsend v. Thompson, 24 Colo. 411, 51 Pac. 433; Roberts v. Flatt, 142 III. 485, 32 N. E. 484; Swift v. Harley, 20 Ind. App. 614, 49 N. E. 1069; Crooker v. Pearson, 41 Kan. 410, 21 Pac. 270; Willard v. Van Leeuwen, 56 Mich, 15, 22 N. W. 185; Mutual Ben. L. Ins. Co. v. Howell, 32 N. J. Eq. 146;

times provided by statute that if a claim, though secured by mortgage, be not presented, the failure to present the same is a waiver of the right to secure a deficiency judgment against the estate, and the claimant can look only to his lien on the property for the satisfaction of the debt.57

The law generally requires that the executor or administrator must publish notice to creditors within a specified time, since any delay in the matter would postpone the settlement of the estate for the reason that claims usually may be presented within a designated time after the first notice to creditors is published. Where the statute imposes this duty upon the personal representative, his neglect to perform it is often made a ground for his removal. Where, however, he acts in good faith and the delay is not due to any neglect on his part, but to that of another, the apparent neglect will be excused.58

§ 1495. Creditor May Establish His Claim in a Court of Equity.

Upon the death of an owner of property, his estate is immediately impressed with a trust for the benefit of his creditors, heirs, next of kin, devisees or legatees. In England this trust from early times was enforced by the courts of chancery; and in the United States the courts of equity, as a part of their original jurisdiction derived from the English High Court of Chancery, have the power, when suit is instituted by any proper creditor,

Kirman v. Powning, 25 Nev. 378, 60 Pac. 834, 61 Pac. 1090; Matter of Eadie, 39 Misc. Rep. (N. Y.) 117, 78 N. Y. Supp. 967; Gleason v. Hawkins, 32 Wash. 464, 73 Pac. 533.

57 Hibernia Sav. etc. Soc. V.

Wackenreuder, 99 Cal. 503, 34 Pac. 219; Browne v. Sweet, 127 Cal. 332, 59 Pac. 774.

58 Estate of Welch, 86 Cal. 179, 183, 24 Pac. 943; In re Chadbourne's Estate, 15 Cal. App. 363, 114 Pac. 1012, 1015.

next of kin, devisee or legatee, to enforce this trust against the executor, administrator, or any parties having possession or control of any part of the trust estate."

59

In a broad sense the personal representative of a decedent holds the estate as a trust fund, among other things, for the payment of the decedent's debts.60 Generally the probate court has ample power to protect the rights of all parties by enforcing a proper and just administration of the assets, but where the probate court, with its limited jurisdiction, has not the power or authority to grant full relief under the circumstances presented, a court of equity will entertain jurisdiction so as to avoid a failure of remedy or a miscarriage of justice."1 A given instance of a court of equity assuming jurisdiction is where a creditor seeks, not to recover a judgment on his claim, but to establish the validity of his claim and that he is a creditor of the estate and entitled to share in its distribution.62 Such a proceeding does not interfere with the administration of the estate in the probate court; it merely establishes the validity of the claim so that it may

59 Adair v. Shaw, 1 Sch. & Lefr. 262; Borer v. Chapman, 119 U. S. 587, 598, 599, 30 L. Ed. 532, 7 Sup. Ct. 342; McClellan v. Carland, 187 Fed. 918, 110 C. C. A. 49.

60 Blood v. Kane, 130 N. Y. 514, 15 L. R. A. 490, 29 N. E. 994.

61 Post v. Ingraham, 122 App. Div. (N. Y.) 738, 107 N. Y. Supp. 737; Hard v. Ashley, 117 N. Y. 606, 23 N. E. 177.

62 Bankers' Surety Co. v. Meyer, 205 N. Y. 219, Ann. Cas. 1913D, 1218, 98 N. E. 399.

In Petrie v. Voorhees' Exr., 18 N. J. Eq. 285, it was held that where there is a debt of a testator to be paid at a future day, a court of equity has power to order that sufficient assets for the discharge of it be retained and secured by the executor before distribution of the estate; that there is no adequate remedy at law in such a case and the creditor ought not to be left to follow the legatees. See, also, Johnson v. Mills, 1 Ves. Sen. 282.

share in the assets as administered by the probate court." Likewise a distributee may thus establish his right to share in the estate in the distribution of the estate.64

§ 1496. Debt Due from a Distributee May Be Retained Out of His Distributive Share.

The question of the right of set-off in a case where there are conflicting claims between a creditor or distributee of the estate and the personal representative, depends on varying circumstances which must be borne in mind to avoid an apparent conflict of authority. A set-off may or may not be allowed according to the one who demands it, the nature of the claim, and the proceeding in which it is sought.

As between the personal representative and a legatee or one entitled to a distributive share of the estate, the rule is that if the legatee or distributee is indebted to the estate, whether because of a debt due the decedent in his lifetime or because of matters arising during the course of administration, the personal representative may set-off such indebtedness against the legacy or distributive share or, as it may more properly be expressed, he may retain out of such legacy or distributive share an amount sufficient to satisfy the debt due from the legatee or distributee, paying him merely the balance, if any remains.65

63 Waterman v. Canal-Louisiana Bank & T. Co., 215 U. S. 33, 44, 54 L. Ed. 80, 30 Sup. Ct. 10.

64 Byers v. McAuley, 149 U. S. 608, 620, 37 L. Ed. 867, 13 Sup. Ct. 906.

65 Sims v. Doughty, 5 Ves. Jun. 243; Cherry v. Boultbee, 4 Myl. & Cr. 442; In re Cordwell, L. R. 20 Eq. 644; In re Watson (1896), 1

Ch. 925; Caldwell v. Caldwell, 121 Ala. 598, 25 So. 825; Succession of Kernan, 105 La. 592, 30 So. 239; Hoffman v. Armstrong, 90 Md. 123, 44 Atl. 1012; Haskell v. Hill, 169 Mass. 124, 47 N. E. 586; Matter of Robinson, 45 Misc. Rep. (N. Y.) 551, 92 N. Y. Supp. 967; In re Schmidt's Estate, 58 N. Y. Supp. 595; Ramsour v. Thompson, 65