terms of the will." The purposes for which such power may be given are the payment of debts and such other purposes as the testator had in mind and which are specified in the will.100 This power does not limit the executor to place but one mortgage; he may execute successive mortgages, if necessary to carry out the directions in the will. Nor does the power, when directed by the will for the payment of debts, conflict with statutes that provide for a sale of a portion of the real estate, when the personal estate is inadequate for that purpose." 102 104 101 Implied power to mortgage the testator's real property is not generally included in the mere power given, in the will, to sell the property;103 whether it exist must be gathered from the testator's intention and a reasonable construction of the terms of the will and its directions." The power to mortgage may be implied from general directions in the will, which authorizes the testator's widow to sell and dispose of the real estate as she might deem best for the support of herself and family, and carry on the business of the testator, although the decisions on this question are not uniform.' 107 106 105 Implied power to mortgage is also within the limits of a power of sale given to raise a specific charge only (as for the payments of debts), when the purpose can be better answered by mortgage than by sale, and when it will be to the better advantage of the estate to mortgage it than to sell it, provided the intention of the testator be not violated by so doing. An implied power to mortgage may be gathered from a will by which the testator devises his entire estate to his wife, with full power to sell and convey all or part of it and use "the proceeds for her comfort, and otherwise, as she may think proper.' Where, also, the testator devised all the property to his wife, appointing her and another person executors, with power to sell and dispose of all his estate "in such manner and form as they shall jointly agree upon 19108 99 50 L. J. Ch. (Eng.) 31 (1889). 100 97 Ill. 525 (1881). 101 44 Fed. Rep. 224 (1890). 10286 Iowa 1 (1892). 1031 Beav. (Eng.) 390 (1839). 104 83 Va. 386 (1886). 106 108 Ill. 662 (1884). 107 36 N. J. Eq. 169 (1882). 108 153 Mass. 137 (1891). or in any way that they shall think proper," in order to pay all his debts, it was held, that the will gave the executors a discretion to mortgage as well as to sell.1oo 109 15. Power Given by Court. - Executors and administrators may be granted the power to mortgage the real property of decedents by the court, in jurisdictions where, by existing statutes, the courts are authorized to make an order to that effect. The purposes for which leave may be granted to mortgage the real property of decedents are the same for which an order of sale may be granted by the court, and in the exercise of the power the proceedings to be taken are usually the same as those which relate to a sale; and the same legal principles apply."10 MANAGEMENT OF ESTATES CARE OF THE PROPERTY 113 16. The duty of an executor or administrator to manage and care for the estate in his charge includes all the necessary acts which will preserve the estate and prevent loss. Accordingly, he may insure property against loss by fire," and he may pay taxes upon all personal property in his hands," and taxes on the real estate which have accrued during the lifetime of the owner,' and those which have accrued after the death of the owner, when the real estate is required for the payment of debts,' and taxes on such real estate of which he is lawfully in possession with the consent of the devisees;" also, when the will directs the executor to pay taxes on the real estate,' and where property is mortgaged to the estate, and the mortgagor neglects to pay them." 116 116 An executor or administrator, in his capacity as such, may deposit estate funds in a bank, as he collects them, and = 109 1 Myl. & C. (Eng.) 401 (1836). 110 See subtitles Power Over Real Estate, Sale Under Order of Court, supra. 1112 Redf. (N. Y.) 87 (1874). 11238 Conn. 443 (1871). 11356 Ind. 131 (1877). 114 34 Miss. 324 (1857). 115 16 Mo. App. 342 (1884). 1161 Dem. (N. Y.) 425 (1882). 117 35 Ark. 511 (1880). 118 keep them there until he can invest them or make distribution; but, if in collusion with the bank he permit them to be used for the bank's purposes, and they be lost, he is personally liable." In some states, by statute, it is made the duty of executors and administrators to deposit estate funds in bank.' 120 119 121 Executors and administrators are required to keep the funds and property of their trust separate and distinct from their own funds and property, thereby saving themselves trouble, litigation, and censure.' They should upon no consideration use the trust money themselves or permit it to be mingled with their own moneys or property; for where a personal representative mingles assets of the estate with his own property, so that they can no longer be distinguished, the property in such assets is of necessity altered and vested in the representative individually;"" it is a conversion of the assets, and, technically, they become administered, and the representative remains accountable for their value. and liable in case of loss, whether caused by his fault or not." 123 INVESTMENT OF ESTATE FUNDS 17. An executor or administrator is required to invest such of the funds of the estate as are not immediately applicable for the purposes of administration- that is, such as may not be needed for a considerable time, for the payment of debts, expenses of administration, or contingent liabilities likely to arise from litigation-so that they may be productive of interest for the estate. The duty to invest the funds imposes upon an executor or administrator such care and diligence in making investments as will secure them against the possibility of loss, and to that end investment in such securities as are designated under the authority of statutes, or by direction of the court, should be faithfully complied with, since thereby an executor or administrator 118 25 N. Y. Supp. 725 (1893). 1195 Misc. R. (N. Y.) 123 (1893). 120 La. Stat. (1837); 41 Hun (N. Y.) 561 (1886). 1214 Paige (N. Y.) 393 (1833). 1224 Mas. (U. S.) 29 (1825). 1234 Redf. (N. Y.) 291 (1880). will be protected against any liability, even though the funds should be lost."" 126 In many of the United States, provisions requiring the investment of estate funds are found in the statutes; "and even in the absence thereof it is the duty of executors and administrators, as of all trustees having funds in custody which are not payable to the beneficiaries until after the expiration of a considerable time, to make them productive on safe security." In some states, the statutes designate the kinds of securities; in others, the statutes name the classes of securities, but the selection is subject to the order of the court, while in others the selection is left wholly to the direction of the court.' In England, the investment of the funds of decedents' estates is regulated by the Trust Investment Act, which prescribes the particular securities. in which the investments may be made, in the absence of testamentary directions concerning the matter.""" 129 127 There is no arbitrary or inflexible rule that governs the selection of securities in which estate funds may be invested. The nearest approach to a rule is, that "it is the duty of trustees to invest funds held by them in government or state securities, or in bonds and mortgages on unencumbered real estate." This is the basis upon which executors and administrators and other trustees should act. In any event, one holding unemployed trust funds is bound to employ such diligence, care, and prudence in the management of the trust as diligent, careful, and prudent men generally employ in their own affairs. 18. The securities most favored by the courts, both in England and the United States, are government and realestate securities.130 The statutes, in some states, designate the classes of securities in which estate funds may be invested, but generally the matter is under the direction of = 12433 N J. Eq. 235, 237 (1880). 125 Woerner Am. Law of Admin., Vol. 2, p. 705, citing 59 Vt. 348 (1887). 126 Rev. Stat. Fla (1892), Sec. 1,936. 1273 Md. Ch. 306 (1851). 128 Am. & Eng. Encyc. Law, Vol. 11, p. 956, citing 52 & 53 Vict., c. 32, Sec. 3 (1889). 129 26 Hun (N. Y.) 594 (1882). 1303 Madd. (Eng.) 62 (1818). the court, subject to the designation of statutes where there is a designation." In other states, the selection of securities is committed by statutes to the court. 132 Under a statute which provides for investment in such securities "as the orphans' court may direct," the courts generally confine themselves to real-estate and government securities. Where the words "or other good security" are used in the statutory authorization, the statute is considered as authorizing gas stock, and, it may be inferred, these words would authorize the court in directing investment in any safe and productive security." Loans of estate funds on personal security, in the absence of statutory authority or direction to an executor by will, is held to be insufficient security, and is not countenanced by the courts.' 134 135 By direction in his will, a testator may authorize the investment of the funds of his estate in whatever class of securities he pleases, without regard to the kinds specified by statute or those preferred by the court.' It is imperative on the executor to follow the directions in the will as to the investment directed by the testator, unless he shall be unable to find the particular security specified, in which case. he may adopt such investments as a prudent and intelligent man would in managing his own affairs.' The safest course for an executor to pursue in case he is unable to find the security that is designated in the will, or if the security, upon investigation, prove to be an unsafe one, is to apply to the court for instructions as to what investment he should make, in the absence of statutory designation of securities."" 136 138 Where the will contains no specified directions as to how the funds shall be invested, or if there be simply a general direction to invest the funds in good securities,' the executor is held to the duty of investing in such securities as are regarded by the court as proper for the investment of trust funds." 13133 N. J. Eq. 521 (1881). 132 18 N. H. 307 (1846). 1333 Md. Ch. 306 (1851); 62 Md. 183 (1884). 134 17 Ala. 170 (1850); 2 Dem. (N. Y.) 567 (1882). 139 13645 Barb. (N. Y.) 182 (1865); 23 Gratt. (Va.) 241 (1873). 137 13 N. J. Eq. 413 (1861); 43 Pa. 431 (1862). 138 43 Pa. 431 (1862). 139 30 N. J. Eq. 31 (1878). 135 2 Bland (Md.) 264 (1832); 2 Barb. (N. Y.) 457 (1848). |