hands for an unreasonable length of time to the prejudice of the heirs and creditors, it is well settled that he is liable for interest on the funds so used and retained. He can not be allowed to make any profit out of the estate nor retain the funds for an unreasonable length of time.55 The executor or administrator of an estate occupies a position of trust, and in no event is he allowed to make any personal profit by reason of using the funds of the estate or occupying the real property thereof. If he uses the personal property or funds belonging to the estate, he is chargeable with all actual profits, no matter how great they may be, but should loss result instead of profit, then the personal representative must suffer the loss and in addition thereto be liable for interest at the legal rate, compounded annually.5

56

The general rule is that a personal representative or any one occupying a position of trust, who uses trust funds in his own business or trade, is chargeable with legal interest thereon, compounded annually. Those entitled to the trust property and who have been unjustly deprived of its use are entitled to be compensated for their loss and to be placed in the same position as if the trustee had faithfully performed his proper duty. This particular point is one upon which the rules of the common law and of the civil law agree; it is a principle which

Tobiason, 52 Iowa 665, 3 N. W. 715.

55 Walls v. Walker, 37 Cal. 424, 429, 99 Am. Dec. 290; Estate of Bush, 89 Neb. 334, 131 N. W. 602; McCloskey v. Gleason, 56 Vt. 264, 283, 48 Am. Rep. 770.

56 Walls v. Walker, 37 Cal. 424, 99 Am. Dec. 290; Miller v. Lux,

100 Cal. 609, 615, 35 Pac. 345, 639; Estate of Piercy, 168 Cal. 755, 145 Pac. 91. See, also, Willis v. Sharp, 113 N. Y. 586, 4 L. R. A. 493, 21 N. E. 705; Western Newspaper Union v. Thurmond, 27 Okla. 261, Ann. Cas. 1912B, 727, 111 Pac. 204.

has its foundation in natural justice or at least is recommended by the obvious dictates of public policy. A trustee who negligently allows the trust funds to lie idle and receives no benefit from their use, may be charged but simple interest; but where he converts the trust funds to his own use and employs them for his own benefit, compound interest should always be charged.57

§ 1514. The Same Subject: Liability Not Dependent Upon Profit.

In order to make a trustee chargeable with interest on trust funds in his hands, it is not necessary that he actually employ such fund for some particular purpose of his own. If he wilfully and unnecessarily mingles the trust fund with his individual funds so as to constitute himself the apparent owner, he is liable not only for its safety,5 but for the value of its use. If an executor or administrator uses trust funds for his own purposes, although it may be impossible to compute with any degree of accuracy what profit is realized, and although he is at all times able to respond and satisfy the trust to its full amount, yet such circumstances do not exonerate him from liability for interest on the sums used, compounded with annual rents.59

57 Story, Eq. Jur. (13th ed.), vol. 2, §§ 1277, 1278; Perry, Trusts (6th ed.), vol. 1, § 471; Estate of Hamilton, 139 Cal. 671, 73 Pac. 578; Estate of McPhee, 156 Cal. 335, Ann. Cas. 1913E, 899, 104 Pac. 455; Perrin v. Lepper, 72 Mich. 454, 40 N. W. 859; Cruce v. Cruce, 81 Mo. 676, 684; Schieffelin v. Stewart, 1 Johns. Ch. (N. Y.) 620, 629, 7 Am. Dec. 507, decision by

Chancellor Kent; Troup v. Rice, 55 Miss. 278; Matter of Kernochan, 104 N. Y. 618, 619, 11 N. E. 149.

58 See § 1511.

59 Estate of Clark, 53 Cal. 355; In re Eschrich, 85 Cal. 98, 24 Pac. 634; Miller v. Lux, 100 Cal. 609, 615, 35 Pac. 345, 639; In re Brown's Estate, 113 Iowa 351, 85 N. W. 617.

1

If the personal representative use the funds of the estate by depositing them in a bank to the credit of a firm of which he is a member, although without intended or actual fraud on his part, and although a balance is thereafter maintained in the bank to the credit of the firm, yet it will be presumed that such trust funds were used in the business of the firm, and the circumstances mentioned do not relieve the representative from liability for legal interest on all funds so deposited, compounded annually.60 §1515. Use of Real Property, Personal Representative Charged With Annual Rent, Compounded Annually.

Real property of the estate, upon the death of the owner, passes to the heir or devisee, subject in some jurisdictions to the control of the executor or administrator for purposes of administration. In no case, however, is the personal representative justified in using the real property of the estate for his own purposes. If he does so he is chargeable with the rental value of the real property. If he occupies and uses it for his own benefit, he becomes at least the tenant of the estate or of those entitled to the property, and is liable for its use and occupation. As a trustee, however, he is not entitled to make any profit out of the trust property, and if his use and occupation of the property result in a profit to him of

An executor who commingles the funds of an estate with his own funds and uses them for his own benefit, is liable for interest thereon.-Estate of Bush, 89 Neb. 334, 131 N. W. 602.

The bondsmen of an executor are liable for any loss occurring through the executor using the funds of the estate in his own

business, provided that such use was not with the consent of the beneficiaries. In re Spann, 51 Okla. 309, 152 Pac. 68.

60 Estate of Stott, 52 Cal. 403. To the same effect, see Estate of Cousins, 111 Cal. 441, 44 Pac. 182; Bemmerly v. Woodward, 124 Cal. 568, 57 Pac. 561; Glassell v. Glassell, 147 Cal. 510, 82 Pac. 42.

more than the rental value thereof, he is liable for the full amount of such profit. But even though his use of the property may result in a loss to himself, he must bear that loss but at the same time is chargeable with the rental value of the property as any tenant would be.1

The amount of the rent to be charged may be established in the court the same as any fact, upon evidence produced. But the rental value alone does not compensate the heirs where the matter is unduly delayed for a greater period than one year. Being entitled to the rental yearly, if the personal representative who occupies the realty delays the settlement of the estate, even though under the claim that he owns the property, or if he is guilty of fraud or misconduct, he will be charged not only with the annual rental, but with legal interest thereon, compounded annually.62

61 Walls v. Walker, 37 Cal. 424, 431, 99 Am. Dec. 290; Estate of Rose, 80 Cal. 166, 172-174, 22 Pac. 86; In re Misamore, 90 Cal. 169, 170, 171, 27 Pac. 68.

Appellant was not only executor of the will but was charged with the duty of preserving the estate as trustee. He had no duty as executor in regard to the real estate, but as testamentary trustee

his duty extended to the whole estate, including the real estate. Under such circumstances he is chargeable with the rental value of the real estate where, as appears, he neglected to rent it, but, on the other hand, he proceeded to sell it contrary to law.-Candelaria v. Miera, 18 N. M. 107, 134 Pac. 829, 831.

62 Estate of Piercy, 168 Cal. 755, 145 Pac. 91.

CHAPTER LVIII

DUTIES AND LIABILITIES OF COEXECUTORS.

§ 1516. To what extent joint executors or joint administrators are considered as one.

§ 1517. Right of one of several executors to act for all.

§1518. The same subject.

§ 1519. Suits between coexecutors to compel an accounting. § 1520. As to the sale of real property.

§ 1521. The same subject: When some refuse to act.

§ 1522. Manner in which coexecutors may be held liable for

devastavit.

§ 1523. General rule as to liability of one executor for acts of

coexecutor.

§ 1524. Effect of agreement between coexecutors as to control and management of estate.

§ 1525.

Effect of one executor delivering assets to a coexecutor. § 1526. Liability for devastavit by coexecutor permitted to occur

through negligence.

§ 1527. The same subject: As to investments.

§ 1528. Effect of insolvency of coexecutor.

§1529. Effect of joint or separate inventories, receipts or

accounts.

§ 1530. Joint bond and joint liability: Contribution.

§ 1531. Release of one executor from liability..

§ 1532. Division of commissions among coexecutors. 1533. The same subject.

§ 1516. To What Extent Joint Executors or Joint Administrators Are Considered as One.

A testator in his will may appoint several persons as executors and all those so nominated may, if they so desire and are qualified, assume the office. As to the estate of an intestate, the probate court may appoint more than one administrator, if the circumstances of the estate make