erty. An executory contract for the purchase of real estate confers no rights or duties on the administrator or executor except in cases in which the decedent's real estate is needed to pay his debts, or when the decedent's promise to pay the purchase money is a debt which his representative may be required to pay. If he has not sufficient assets to pay the purchase money, he may be authorized by the court to agree with the vendor to rescind the agreement. The right of recision exists only when the contract is executory. After it has been executed the heirs alone, if any persons, have the right to rescind. On the other hand, if the decedent had the right to return the property, if dissatisfied, and demand the purchase money, his personal representative may do the same thing.

An executor or administrator cannot render the estate liable by wrongful acts. These are individual for which he alone is responsible; whether they were done intentionally or not. Thus he is personally liable for libel, for infringing a patent right, for false representations in selling real estate, for giving with fraudulent intent wrongful advice to the testator's widow. In like manner he cannot receive money or property not belonging to the estate; in doing so the authorities differ whether he becomes liable personally, or only in a representative way. The latter view is more general.

In preserving the estate and protecting it from loss, he may do whatever is required. While not a guarantor of its safety, he must act with prudence and diligence. He may without an order of the court secure a debt by taking a mortgage, extend the time for paying a debt on which the decedent was surety, employ laborers when they are needed, but must not speculate with the assets of the estate, and if dealing with them, must ac

count for all the property. One would suppose this rule would prove effective in preventing an executor from attempting to use the assets entrusted to him to his personal advantage. Again, the beneficiaries may elect either to hold the executor or administrator accountable for the gain he might have acquired for the estate had he been reasonably diligent, or for the gain he actually did make and of which he made no account.

When the decedent was a partner by the old rule his death worked a dissolution of the partnership, unless the executor was authorized by will to carry on the business, or the articles of the copartnership provided for such a happening. To prevent the ill consequences of a dissolution, an administrator often continued to act with the partnership, subjecting himself to personal liability by his course. By statute he now has a freer hand to act under the direction of the court.

An executor or administrator should keep the decedent's estate separate from his own. Of late many cases have arisen growing out of the mingling of trust, with personal, deposits. If trust deposits are thus put into a bank to the credit of his own individual account, he is liable for their loss however good may have been the general opinion of the bank's solvency and management. A different rule applies when they are deposited in his representative character, or have been deposited there by the decedent, and are still kept in the same bank by his representative. Again, he is liable if there was no need of making the deposit, or for negligence in not distributing it as he should have done, or for keeping it so long without the consent of interested parties.

While these rules apply between the estate and the administrator, a different rule applies between

him and the depository. It is the custom to allow a depositor of trust funds to credit them to his individual account. In many cases the bank does not know their origin. It would be an unreasonable burden to impose on banks, so the courts say, to make such an inquiry. And the rule is the same if the bank, knowing their true character, still permits him to deposit them in his individual name. And if he checks out the trust money for the payment of his individual debts, the bank is still free from liability, is not required to investigate the propriety of the withdrawal, and may assume that he is acting within the terms of the trust. When however the bank knowingly participates in or receives a benefit from an improper withdrawal, it is liable for the funds so diverted. Thus, if he draws on the trust funds, or on his own account containing trust funds, in order to pay his personal indebtedness to the bank, it is considered as having knowledge of the conversion and is liable therefor. Likewise if the bank knows of an attempt by him wrongfully to withdraw the trust funds and does nothing to prevent him, the bank is not excused, even though it was not to be benefited by his action.

There are many rules relating to investments. Ordinarily he is not required to make them, on the other hand he should not keep funds long idle and unproductive. Either he should pay them to the creditors, or to those who by will or law are entitled to them. So long as he retains investments made by the decedent, he must be diligent in collecting the interest on them and keep himself informed of all matters affecting their value as would a diligent, prudent man. If he apprehends their depreciation, he should convert them into other securities, unless, if acting under a will, it is mandatory and requires

their retention. In doing these things if he acts honestly and prudently the law protects him; otherwise he is held liable for dishonesty and neglect.

He is not permitted to derive any individual gain from his dealings with the estate. By statute he is forbidden in some states to purchase claims against the estate at a discount; or to settle his own debts to the estate at undue personal advantage to himself. Nor can he purchase the property at any sale, however conducted, without the consent of the beneficiaries. And if he acquires the property through collusion with a third person, this is merely an indirect purchase by him and is void. "Never

theless some exceptions have been made by statute. Also sales that are fairly made and at which full value was paid."

Finally there must be a distribution of the estate and the rendering of an account to the court of probate. If acting as executor, the will directs how he shall distribute the property. If it fails to include all, then the excluded portion is distributed like any other intestate estate. For the distribution of this statutes exist in every state. Of course, as we all know, innumerable questions arise about the competency of testators to make wills, their failure to express themselves clearly and to comply with all the requirements of law, and there arises consequently the ceaseless flow of litigation over the distribution of their property. Those to whom nothing has been given, or less than they desire, are never slow to discover any chance to enter the ring and make a fight, for, unlike contending pugilists in which both are bruised in the conflict, many a modern will breaker has nothing to lose through his contention, not even the fee of his lawyer, for it is now lawful to agree that the payment of this shall depend on the success of the venture. See Legacy.

Factor. A factor receives and sells goods for a commission, is usually entrusted with their possession, and sells them in his own name. He has a special interest or property in them, and a lien thereon for advances in money that he may make to the owners. No formal mode of authorizing him to act is required; usually this is done by word only, and his authorized acts may be ratified by his principal. This authority is largely the outgrowth of usage. The authority of a factor to fix the terms of selling may be by agreement or by usage, like any other agent. Limitations fixed by the principal are ordinarily binding on the factor, and, so far as they are chargeable with notice of them, third persons also. Where goods are confided to a factor without instructions, authority to exercise a fair and reasonable discretion is implied. Unless restricted by his principal, or by contrary usage, he may sell goods on a reasonable term of credit. If he is restricted to cash sales only, or is not protected by usage in selling on credit, he cannot do so. Secret instructions would not affect the rights of a purchaser ignorant of them and relying on customary authority.

A factor is employed to sell goods, and not to barter or exchange them, and if he should do this his principal could recover them. He may insure the goods, but is not required to do so unless instructed or is required by usage, which plays a large part in this matter and must be observed except as qualified by instructions.

He cannot compound or compromise a claim for the purchase price, or discharge the debt on payment of a part only, or submit a disputed claim for arbitration, or rescind a sale, or discharge a purchaser from any part of his obligation, or extend the time of payment, or make, accept or indorse negoti