liability for tortious negligence whereby a third party suffered damage..

And in Boston Beef Packing Co. v. Stevens (1882) 20 Blatchf. 443, 12 Fed. 279, executors were held liable personally for damage sustained by an adjoining owner by the fall of a building belonging to the estate which they had leased as a warehouse, and which was unsafe and unfit for use as a warehouse at the time it was let.

And executors in control and possession of a building are personally liable to one rightfully therein who is injured by neglect to keep the premises in repair. Donohue v. Kendall (1884) 18 Jones & S. (N. Y.) 386, affirmed in (1885) 98 N. Y. 635. The court stated that it was supposed that the executors had no power to repair, and that it was conceivable that they had not such power at the expense of the estate, but that the presumption was otherwise; that however this might be, they had the power to make repairs at their own expense, and were not compelled to go into control of the property if they did not see fit to do

So.

And in Bannigan v. Woodbury (1909) 158 Mich. 206, 133 Am. St. Rep. 371, 122 N. W. 531, it was held that an administrator, having control and possession of a building belonging to the intestate, is chargeable with the duty of keeping the building in a safe condition, and is personally liable for his negligence in failing to repair the building by reason of which a pedestrian is injured by a window falling from the building.

And in T. L. Horn Trunk Co. v. Delano (1912) 162 Mo. App. 402, 142 S. W. 770, it was held that an administratrix was individually liable for negligence in failing to keep a tank on leased property of the estate in proper repair, by reason of which a tenant suffered loss of his goods.

It has been held, however, where a will vested a title to premises in executors, but contained nothing in any way bearing upon their duties in respect to the house, and gave a right to occupy it to the testator's widow, that the executors were not liable for an injury sustained through the un

safe and defective condition of the house, although they had knowledge thereof. Butler v. Townsend (1895) 84 Hun, 100, 31 N. Y. Supp. 1094. The court stated that the executors were not entitled to the possession, use, or management of the house, and that as the will made no provision for repairs and conferred no authority upon them to devote any part of the estate to that purpose, they failed to see upon what theory the executors could be held liable, and stated further that the duty of keeping premises in a safe condition pertained to occupancy, and not to ownership, and that in the case at bar the use and occupation of the property were given to the widow, and that the executors never had been in control or management thereof.

And it has been held that an executor who takes no estate in the lands of the testator, but has merely a naked power to receive the rents, is not personally liable to a tenant who sustains damage through the defective construction and maintenance of a building. Robbins v. Mount (1867) 4 Robt. (N. Y.) 553.

See also Gillick v. Jackson, infra, I. d.

c. With respect to negligence of employees.

In some cases trustees under wills and executors and administrators have been held personally liable for injuries or damage sustained because of the negligence of persons employed in administering the trust. Kalua v. Camarinos (1898) 11 Haw. 557; McCue v. Finck (1897) 20 Misc. 506, 46 N. Y. Supp. 242; Gatti-McQuade Co. v. Flynn (1913) 79 Misc. 430, 140 N. Y. Supp. 135; Deschler v. Franklin (1900) 11 Ohio C. D. 188; Parmenter v. Barstow (1900) 22 R. I. 245, 63 L.R.A. 227, 47 Atl. 365.

In Kalua v. Camarinos (1898) 11 Haw. 557, an administrator who was carrying on the intestate's business was held personally liable for injuries. suffered in a collision with a wagon, which was caused by the negligence of one employed by him as a driver, who at the time of the injury was acting within the scope of his employment. The court in this case said: "The de

fendant's counsel in their brief assert that defendant was not carrying on the business as a trader, but merely to preserve its good will until such time as it could be sold, under the direction and by the authority of the probate court. We do not find this position supported by the pleadings or the proofs adduced below. This is a complete answer to the contention of defendant's counsel that an administrator is only responsible for damages or injuries caused either directly by himself or indirectly by his negligence. Defendant was not winding up his intestate's estate. Kondo was employed by the defendant, and the alleged trespass was committed by Kondo while driving the wagon in the scope of his employment in the fruit store business. Defendant was his master. According to well-settled law, not disputed by defendant, the master is responsible to third persons for injuries through the negligence of his servant while acting within the scope of his employment. This is so because every master is bound to employ servants that are both skilful and careful. So far as third persons are concerned Kondo was the servant of defendant.

In this case the law casts upon the defendant the same responsibility to third parties for the acts of his servants as is cast upon all masters or employers of servants. Whether the master employs them in the business of his decedent or his own business it makes no difference."

And in McCue v. Finck (1897) 20 Misc. 506, 46 N. Y. Supp. 242, it was held that an executor carrying on a business under a will was liable individually, and not in his representative capacity, for a negligent injury sustained by a truck driven by an employee.

And in Gatti-McQuade Co. v. Flynn (1913) 79 Misc. 430, 140 N. Y. Supp. 135, it was held in an action to recover for an injury sustained through the negligence of a driver employed by an administratrix, that an administratrix committing a tort, either personally or by an agent, is liable therefor in her personal capacity, and not in her representative capacity, and the com

plaint in this case was construed to state a good cause of action against the administratrix in her individual capacity.

And it has been stated that one holding property as trustee under a will is personally liable for an injury sustained by another by being struck in the eye by chips of stone which were negligently caused to fly into the plaintiff's face by persons employed on the property while she was passing on the sidewalk. Parmenter v. Barstow (1900) 22 R. I. 245, 63 L.R.A. 227, 47 Atl. 365. The action in this case, however, was against the trustee in his official capacity.

And in Deschler v. Franklin (1900) 11 Ohio C. D. 188, which was an action against executors to recover for an injury claimed to have been sustained through the negligent operation of an elevator in a building belonging to the estate, the court refused to hold the executors liable in their representative capacity, and stated that if any cause arises through the negligence of an executor in managing an estate, the action must be against him personally, and not against him in his representative capacity.

In some cases, however, the courts have refused to hold trustees under wills, or personal representatives, liable for injuries or damage resulting from the negligence of employees.

Thus, in Fetting v. Winch (1909) 54 Or. 600, 38 L.R.A. (N.S.) 379, 104 Pac. 722, 21 Ann. Cas. 352, where it was sought to hold an executor liable for the death of an assistant janitor in a building belonging to the estate, which was alleged to have resulted from the negligence of the head janitor in placing an inexperienced person in charge of an elevator, it was held that no recovery could be had. The court stated that if liable at all, as the act was beyond the scope of his official capacity, the executor must be sued as an individual; that a judgment against him personally for damages sustained on account of a personal injury must rest either on the principle of respondeat superior, or on the breach of some duty amounting to actionable negli gence, or on his independent tort, and

that the maxim of respondeat superior is bottomed on the principle that he who expects to derive advantage from an act which is done by another for him must answer for an injury which a third person may sustain from it, and said that there was no testimony to show that the executor in the case at bar was managing the building for his own profit, or that he derived or expected to derive any advantage or profit from the employment of the head janitor, and that in the absence of such evidence it could not be legally said that he was individually liable for the janitor's act, and that the evidence did not show any act of negligence on the part of the executor that would render him liable for damages caused by the carelessness of the head janitor, whom the complaint alleged was competent. The court in this case recognized the rule that when the law imposes a duty on an executor or administrator and he neglects to discharge the obligation thus enjoined, whereby another sustains an injury, the personal representative is liable therefor.

In Benett v. Wyndham (1862) 4 De G. F. & J. 259, 45 Eng. Reprint, 1183, a trustee under a will was held entitled to recover from the estate the amount paid by him on a judgment recovered in an action in which it appeared that the trustee directed the bailiff to have certain trees cut, and that the latter ordered woodcutters, usually employed on the estate, to do the work, and that in the process thereof a tree fell and injured the plaintiff, who was passing. The court said: "The trustee in this case appears to have meant well, to have acted with due diligence, and to have employed a proper agent to do an act the directing which to be done was within the due discharge of his duty. The agent makes a mistake the consequences of which subject the trustee to legal liability to a third party. I am of opinion that this liability ought, as between the trustee and the estate, to be borne by the estate."

And in Re Raybould [1900] 1 Ch. (Eng.) 199, 69 L. J. Ch. N. S. 248, 48 Week. Rep. 301, 82 L. T. N. S. 46, where a trustee and executor carried on a

colliery, it was held that an adjoining landowner whose land had been let down without recklessness or improper working of the mine was entitled to recover directly from the testator's estate for the damage suffered. The court relied upon the decision in Benett v. Wyndham (Eng.) supra, holding that there was no personal liability on the part of the trustee in the absence of negligence on his part.

And there is an obiter statement in Kellogg v. Church Charity Foundation (1908) 128 App. Div. 214, 112 N. Y. Supp. 566, which was an action of negligence against a charitable corporation, that a trustee under a will, or a like trustee, is not individually liable for the negligence of servants employed in the administration of the trust unless he was himself negligent.

d. Violation of statute.

It will be observed that in the re

ported case (LOUISVILLE TRUST CO. v. MORGAN, ante, 396) a trustee managing an estate under a trust in a will, who leased a hotel belonging to the estate without complying with the statutes and ordinances with respect to fire escapes and extinguishers, was held individually liable for injuries to guests because of the absence of such equipment.

And it has been held that testamentary trustees of a tenement house under a trust imposing the duty of keeping the property in repair upon them were personally liable for an injury sustained by a tenant because of the trustees' failure to properly light a hallway as required by a statute. Gillick v. Jackson (1903) 40 Misc. 627, 83 N. Y. Supp. 29. The court stated that so far as the tenant was concerned, the trustees were the owners of the building; that trustees of an express trust in real estate, where the will creating the trust imposes upon the trustees the duty of managing, leasing, and keeping in repair the property, are, by virtue of the legal title which is vested in them, liable personally, at least in the first instance, and not in their representative capacity, for failure to perform their duty.

And in McAdams v. Starr (1901) 74 Conn. 85, 92 Am. St. Rep. 197, 49 Atl. 897, an administrator was held the "owner," within the meaning of § 376, Gen. Stat., of a dog which had belonged to the intestate, and it was accordingly held that judgment might be rendered personally against the administrator for an injury resulting from a bite by the dog. The exact terms of the statute do not appear, nor does there appear to have been any personal negligence by the administrator.

II. Receivers.

For the distinction between testamentary trustees and receivers as bearing upon their personal liability, see Keating v. Stevenson, cited and quoted supra, I. b.

As to statute creating presumption of negligence against railroad company as applicable to receiver operating road, see annotation to Lamb v. Floyd, 1 A.L.R. 1180.

Cases involving the liability of receivers are not included unless it is clear that the court was considering their individual or personal liability.

In the absence of personal negligence a receiver is held not individually liable for the negligence of employees causing injury to a third person, since he is held master only in his official capacity.

United States.-Davis v. Duncan (1884) 19 Fed. 477.

Alabama. Ferrell v. Ross (1917) Ala. 75 So. 466; McGhee v. Willis (1901) 134 Ala. 281, 32 So. 301. Illinois. Robinson V. Kirkwood (1900) 91 Ill. App. 54; McNulta v. Ensch (1890) 134 Ill. 46, 24 N. E. 631, 2 Am. Neg. Cas. 675; McNulta v. Lockridge (1891) 137 Ill. 270, 31 Am. St. Rep. 362, 27 N. E. 452, affirmed in (1891) 141 U. S. 327, 35 L. ed. 796, 12 Sup. Ct. Rep. 11; Bartlett v. Cicero Light, Heat & P. Co. (1898) 177 Ill. 68, 42 L.R.A. 715, 52 N. E. 339.

Indiana. Vandalia R. Co. v. Keys (1910) 46 Ind. App. 353, 91 N. E. 173. Iowa. Sloan v. Central Iowa R. Co. 62 Iowa, 738, 16 N. W. 331.

Kansas.-Erb v. Popritz (1898) 59 Kan. 264, 68 Am. St. Rep. 362, 52 Pac. 871.

(1895) 60 Minn. 485, 62 N. W. 1130. Missouri.-Averill v. McCook (1900) 86 Mo. App. 346.

New York.-Cardot v. Barney (1875) 63 N. Y. 281, 20 Am. Rep. 533; Camp v. Barney (1875) 4 Hun, 375.

In Davis v. Duncan (1884) 19 Fed. 477, in considering the right to recover for injuries sustained through the negligence of employees of a railroad after a receiver had surrendered and turned the road back, the court said: "The railroad company took the property cum onere as to these claims. A receiver, as such, upon principle and authority is not personally liable for the torts of his employees. Were he so liable few men would take the responsibility of such a trust; it is only when he himself commits the wrong that he is held personally liable. The proceedings against him as receiver for the wrongs of his employees is in the nature of a proceeding in rem and renders the property in his hands, as such, liable for compensation for such injuries." To the same effect is Gray v. Grand Trunk Western R. Co. (1907) 84 C. C. A. 392, 156 Fed. 736.

And in Erskine v. McIlrath (1895) 60 Minn. 485, 62 N. W. 1130, it was held that the liability of a receiver of a railroad for a personal injury caused by the negligence of an employee arises only by reason of the doctrine of respondeat superior, and that in his individual capacity the receiver is not the master of the servant causing the injury, but is such only in his capacity of receiver, and that he is not personally liable for the negligence of servants employed by him to operate the railroad under the orders of the court.

And in Cardot v. Barney (1875) 63 N. Y. 281, 20 Am. Rep. 533, a receiver in bankruptcy of a railroad company was held not individually liable for injuries resulting from the negligence of his employees in the absence of any negligence on his own part; the court stated that there was good reason that one employing another in his business should be responsible for his acts, but that it knew of no principle upon which a receiver, or other officer of a court, merely obeying its orders, hav

ing no interest in the prosecution of the work, and deriving no profit from it, should be answerable except for his own acts and neglects.

And in McNulta v. Ensch (1890) 134 Ill. 46, 24 N. E. 631, 2 Am. Neg. Cas. 675, a judgment against a receiver of a railway rendered against him personally in an action to recover for personal injuries sustained through the negligence of employees engaged in the operation of the railroad was reversed, the court stating that no judgment could be rendered against the receiver individually, but that it must be entered against him as receiver and be payable out of the funds held by him in that capacity in the due course of the administration of his receivership.

And in Averill v. McCook (1900) 86 Mo. App. 346, it was held error in an action against receivers of a railroad for killing a cow to enter a personal judgment against them, on the ground that the receivers were liable only in their official capacity, and that the judgment rendered would necessarily be paid from the funds in their hands as receivers.

And in Camp v. Barney (1875) 4 Hun (N. Y.) 375, a receiver operating a railroad was held not personally liable for the neglect or misconduct of those employed by him, and the record and proceedings in an action against him individually to recover for personal injuries sustained by a passenger were amended so as to make the suit and judgment against him as receiver, and so payable out of the funds in his hands, instead of by him personally. The court stated that the receiver was personally liable, however, for his own neglect or misconduct.

And in Robinson v. Kirkwood (1900) 91 Ill. App. 54, a personal judgment against receivers was modified to stand against them officially. The court said: "It is true no personal judgment could be rendered against the receivers, nor could execution be awarded against them; the judgment should be entered against them as receivers and be made payable in due course of administration of their trust as such receivers."

In Erwin v. Davenport (1871) 9 Heisk. (Tenn.) 44, which was an action against the receiver of a railroad to recover for the death of an employee, an averment in the complaint that the receiver had knowledge of a material defect in the equipment of the train on which the employee was injured, and that with this knowledge he was running the train when the accident occurred, was held to state a good cause of action, the court saying that the agent is personally responsible whether he did the wrong intentionally or ignorantly by the authority of his principal, for the latter could not confer upon him any authority to commit a wrong upon the rights of another. It was held, however, that the receiver's responsibility did not extend to nonfeasance or mere negligence, and certain declarations which merely alleged negligence were held not to state good causes of action.

In Vasele v. Grant Street Electric R. Co. (1897) 16 Wash. 602, 48 Pac. 249, an action to recover for personal injuries against a corporation and its receiver was held to fail as to the latter where the title of the cause merely designated him as "receiver," without the word "as" preceding, and the complaint, although it stated that he was a duly appointed and qualified receiver of the road, did not aver that he had charge and control as the receiver of the company, and it was distinctly averred that the motorman whose alleged negligence caused the injury was the agent of the defendant company.

In Kain v. Smith (1880) 80 N. Y. 458, a receiver of a railway appointed in one state, in possession of another road in New York under a lease, was held liable in an action against him individually for injuries to an employee from defective apparatus, the court holding that he could not shield himself from liability on the ground that he was a receiver.

And under similar facts a like conclusion was reached in Lyman v. Central Vermont R. Co. (1886) 59 Vt. 167, 10 Atl. 346.

III. Other trustees.

In Ballou v. Farnum (1864) 9 Allen