sonam. But a federal court cannot disturb the possession of an estate by a state court. It cannot enforce its orders and decrees by seizing and controlling the property of an estate which is in course of administration in a state court. A citizen of another state may establish in a federal court a claim against an estate in course of administration in a state court, but the claim so established must take its place and share of the estate as administered in the state court and cannot be enforced by process directly against the property of the decedent. In like manner a distributee who is a resident of another state may establish in a federal court his right to a share in an estate, and enforce the right so established against an executor or administrator personally, or his sureties, or against any other parties subject to liability, or in any other way which does not disturb the possession of the property by the state court. Federal courts have no general probate jurisdiction. They cannot seize, administer or distribute the estates of deceased persons within the several states.81 The fact that administration proceedings are pending in a state court does not deprive a federal court of the state to determine whether a lien exists in favor of citizens of another state on some of the distributive shares, the lien only to be enforced after the state court has finished its functions.2 The federal courts have no general equity jurisdiction to set aside a will or the probate thereof.83 A federal court has jurisdiction to determine the right of one to a share in an estate and rights growing out of an assignment thereof, but not to settle the estate or direct distribution. A claim against an estate cannot be established in a federal court after the time for the presentation of such claims has expired in the state court having charge of the administration of the estate.85

84

629. Injunction or receiver pending-Equity will sometimes grant an injunction or receiver to preserve property in statu quo pending administration proceedings in another court.86

EXECUTORS AND ADMINISTRATORS-IN GENERAL

630. Representatives - Personal representatives - Definitions - The terms "representative," "personal representative" and "legal representative" mean, in their ordinary use, executors or administrators. They are sometimes used to denote next of kin, heirs, or any one succeeding

81 Johnson v. Powers, 139 U. S. 156; Byers v. McAuley, 149 U. S. 608; Ingersoll v. Coram, 211 U. S. 335; Waterman v. Canal-Louisiana Bank & Trust Co., 215 U. S. 33; McClellan v. Carland, 217 U. S. 268; Sutton v. English, 246 U. S. 199; Schwartz v. Harris, 206 Fed. 936; Smith v. Jennings, 238 Fed. 48;

Johnson v. Johnson, 225 Fed. 413. See
Ann. Cas. 1913D, 464.

82 Ingersoll v. Coram, 211 U. S. 335.
$3 Sutton v. English. 246 U. S. 199;
Stead v. Curtis, 205 Fed. 439.

84 Stotesbury v. Huber, 237 Fed. 413. 85 Security Trust Co. v. Black River Nat. Bank, 187 U. S. 147.

86 See § 24: 38 L. R. A. (N. S.) 231.

87

to the rights and liabilities of the decedent, or any one who, by operation of law, stands in the place of and represents the interests of another. In the statutes relating to the probate court the word "representative" includes executors, administrators, special administrators, administrators with the will annexed, administrators de bonis non and guardians.88

90

631. An officer of the law and of the probate court-Subject to orders of court-A representative is an officer of the law.89 He is an officer of the probate court appointing him, and subject to its control and directions. He is a mere judicial instrumentality in the settling of an estate. The probate court controls and administers the property of an estate through the representative.92 A failure of a representative to obey an order or decree of the court is a breach of his bond.93

632. Not agent of estate or of decedent-A representative is not regarded as an agent of the estate or of the decedent. He has no principal and the law of principal and agent has no application in determining the powers and duties of representatives as such.**

633. Trust relation-Fiduciary capacity-While a representative is not a trustee in the strict sense of the term so far as his title to the property of the estate is concerned, yet he is a trustee in the sense that he occupies a fiduciary relation toward those interested in the estate and in a general way his duties and liabilities are those of a trustee.95 The

87 Boutiller v. Steamer Milwaukee, 8 Minn. 97 (72, 79); Landis v. Olds, 9 Minn. 90 (79); Jones v. Tainter, 15 Minn. 512 (423); Atkinson v. Duffy, 16 Minn. 45 (30); Simpson v. Cook, 24 Minn. 180, 187; Nash v. Tousley, 28 Minn. 5, 5 N. W. 875; Walter v. Hensel, 42 Minn. 204, 209, 44 N. W. 57; Ewing v. Warner, 47 Minn. 446, 50 N. W. 603; Schultz v. Citizens' Mutual Life Ins. Co., 59 Minn. 308, 313, 61 N. W. 331; Willoughby v. St. Paul German Ins. Co., 80 Minn. 432, 436, 83 N. W. 377; Argall v. Sullivan, 83 Minn. 71, 85 N. W. 931; Alford v. Consolidated Fire & Marine Ins. Co., 88 Minn. 478, 93 N. W. 517; Lowry v. Duluth, 94 Minn. 95, 99, 101 N. W. 1059; Jones v. Minnesota Transfer Ry. Co., 108 Minn. 129, 121 N. W. 606.

SS G. S. 1913. § 7214; Jones v. Minnesota Transfer Ry. Co., 108 Minn. 129, 121 N. W. 606 (special administrators).

89 Wiswell v. Wiswell, 35 Minn. 371, 29 N. W. 166: Woerner, Am. Law of Adm. (2 ed.) § 10.

90 Betcher v. Betcher, 83 Minn. 215,

218, 86 N. W. 1; Brown v. Strom, 113 Minn. 1, 5, 129 N. W. 136; Beaulieu v. Ain-E-Waush, 126 Minn. 321, 148 N. W. 282; State v. Probate Court, 133 Minn. 124, 155 N. W. 906, 158 N. W. 234; Fischer v. Hintz, 145 Minn. 161, 176 N. W. 177; Raugh v. Weis, 138 Ind. 42, 45, 37 N. E. 331; Byers v. McAuley, 149 U. S. 608; Tilt v. Kelsey, 207 U. S. 43, 56; Woerner, Am. Law of Adm. (2 ed.) § 10; 18 Cyc. 208; 23 C. J. 1174. See §§ 26, 29, 691, 724, 936, 1029, 1043.

91 Cowie v. Strohmeyer, 150 Wis. 401, 136 N. W. 956, 137 N. W. 778. 92 Fischer v. Hintz, 145 Minn. 161, 176 N. W. 177.

93 See § 691.

94 Ferrin v. Myrick, 41 N. Y. 315. See § 733.

95 Fleming v. McCutcheon, 85 Minn. 152, 155, 88 N. W. 433; Burmeister v. Gust, 117 Minn. 247, 250, 135 N. W. 980; First Nat. Bank v. Towle, 118 Minn. 514, 523, 137 N. W. 291; Arnold v. Smith, 121 Minn. 116, 140 N. W. 748; Id., 137 Minn. 364, 163 N. W. 672; Michigan

97

general rule which disables a trustee from deriving a personal benefit from the manner in which he manages property intrusted to him applies to a representative. A representative is a trustee for creditors of assets in his hands. It is the duty of a representative to look after the interests of creditors, heirs, legatees and devisees. In a limited sense he represents all persons interested in the estate and must act impartially between them. A representative has no authority to represent the heirs or creditors in the administration of an estate, except in so far as he is required to conserve the estate for all interested therein.99

98

634. Source of authority and status-At common law the source of an executor's authority is in the will and his letters testamentary are mere evidence of his authority. Under our system of administration an executor has no authority to act as such before he is appointed by the probate court and until he qualifies. He is an officer of the law and of the court appointing him and not a mere representative of the testator. The source of his authority is in the law as well as in the will. The mere fact that he is named as executor in the will does not make him an executor but merely gives him a preferential right to be appointed as such by the probate court. Under our system there is little substantial difference between an executor and an administrator. Both are primarily mere officers of the court appointing them. In a limited. sense they represent not only the decedent but also creditors and beneficiaries of the estate-all persons interested in the estate. At common law an executor was regarded as a kind of attorney or representative of the decedent to carry out his wishes or the donee of a power for that purpose. Some of the limitations on the authority of an executor which still exist are traceable to this theory of his status. Much of the modern law of executors and administrators cannot be justified rationally but may be explained historically.

Trust Co. v. Ferry, 228 U. S. 346, 354;
23 C. J. 1170; Woerner, Am. Law of
Adm. (2 ed.) §§ 10, 174, 334, 383, 500.
96 Fleming v. McCutcheon, 85 Minn.
152, 155, 88 N. W. 433.

97 Wyman v. Wyman, 26 N. Y. 253. See Devaney v. Ancient Order etc. Ins. Fund, 122 Minn. 221, 225, 142 N. W. 316.

98 Corey v. Corey, 120 Minn. 304, 311, 139 N. W. 509; O'Brien v. Murphy, 136 Minn. 327, 162 N. W. 356; McQuaide v. Perot, 223 N. Y. 75, 119 N. E. 230. See 23 C. J. 1170.

99 State v. Probate Court, 145 Minn. 344, 177 N. W. 354.

1 In re Bergdorf's Will, 206 N. Y. 309. 99 N. E. 714; 11 A. & E. Ency. of Law (2 ed.) 744; 18 Cyc. 56; 23 C. J. 997, 1019; Woerner, Am. Law of Adm. (2 ed.) § 171.

2 Corey v. Corey, 120 Minn. 304, 311, 139 N. W. 509; In re Smith's Estate, 165 Iowa 614, 146 N. W. 836; Stagg v. Green, 47 Mo. 500; Shoenberger v. Lancaster, 28 Pa. St. 459, 466; Chesire Nat. Bank v. Jaynes, 225 Mass. 432, 114 N. E. 727; 11 A. & E. Ency. of Law (2 ed.) 744; 18 Cyc. 56, 213; 23 C. J. 997, 1020.

3 See 18 Harv. L. Rev. 224; Holmes, Common Law, 344; Maine, Ancient Law, cc. 6, 7.

635. De facto administrators-Whether there may be a de facto administrator is an open question, but it has been strongly intimated that there may be.*

636. Notice to decedent as notice to representative-After the execution of a first mortgage on land a portion of the land was conveyed with a warranty against incumbrance and the grantee made a second mortgage on such portion. The holder of the first mortgage died having knowledge of such conveyance and thereafter his executors extended the time of payment, without any actual knowledge of such conveyance or the second mortgage. Held, that the knowledge of the testator was not imputable to his executors and such portion was not released from the lien of the first mortgage by such extension, and that possession of such portion by the subsequent grantee was not notice to the executors of the second mortgage.5

637. Notice of powers-Persons dealing with a representative acting under a will are charged with notice of his powers thereunder.®

638. Co-executors and co-administrators-Co-executors and co-administrators are considered for most purposes as one person and the act of one is deemed the act of all and the title of each extends to all the property of the estate. Each has as complete control and right of possession over the estate as if he were the sole representative. One may collect assets, compound, compromise or release debts due the estate, sell, assign, pledge or otherwise dispose of the personal property of the estate, submit claims to arbitration, give acquittances, discharge mortgages, transfer stock, or do any other of the ordinary acts of administration. There is no distinction between executors and administrators in this regard. All the acting executors of a will must join in the execution of a power of sale in the will unless the will provides otherwise. But if one or more of the persons named as executors dies, refuses to act, or fails to qualify, the others who do qualify and act may execute the power. If only one qualifies and acts he may execute the power. One representative is not ordinarily liable for the independent acts or omissions of a co-representative. They may act separately or jointly. They are jointly responsible for joint acts and separately liable for their separate acts or omissions. All the representatives should join in an

Lambert, 98 N. Y. 300; 17 A. & E. Ency. of Law (2 ed.) 617; 18 Cyc. 1330-1336; 24 C. J. 1184-1189; Woerner, Am. Law of Adm. (2 ed.) § 346; 9 L. R. A. 223; 127 Am. St. Rep. 381.

8 G. S. 1913, § 6765; 22 A. & E. Ency. of Law (2 ed.) 1100; 18 Cyc. 1334; 24 C. J. 1188; 127 Am. St. Rep. 389; 50 L. R. A. (N. S.) 622. See § 477.

9 Nanz v. Oakley, 120 N. Y. 84, 24 N.

application for a license to sell real estate but their failure to do so will not render the sale void.10 All should join in a petition for a final decree.11 All should join in a petition for discharge. 12 They may contest each other's accounts.13 It is within the province of the probate court to determine the amount due each of several representatives for his services, but where that court, instead of doing so, allows a lump sum for the services of all of them, the district court may apportion such sum between them in proportion to the services which they have respectively rendered the estate. 14 A court of equity will entertain an action brought by an executor on the part of the estate against a coexecutor to determine the amount of a disputed claim, or to force an account, or to foreclose a mortgage, or in any other case, where justice requires it, there being no remedy at law.15

GRANTING LETTERS TESTAMENTARY

639. When and to whom granted-Statute-When a will has been duly proved and allowed, the court shall issue letters testamentary thereon to the executor named therein, if he is legally competent, and accepts the trust and gives bond as required by law; otherwise, such court shall grant letters of administration with the will annexed.10 An executor is nominated and in a sense appointed by the will. The letters testamentary are in fact, as well as in form an order of appointment." 1'7 The person named in the will as executor must be appointed by the court, if he is competent and willing to qualify, unless there are substantial reasons to the contrary.18 He should be appointed unless conditions have materially changed since the will was executed and it is not likely that the testator would have made the appointment if he had foreseen the conditions existing at the time of the application.19 He cannot be denied appointment because of objections to his disposi

E. 306; In re Sanderson's Estate, 74 Cal. 199, 15 Pac. 753; Ames v. Armstrong, 106 Mass. 15; In re Hagerty's Estate (Wash.) 178 Pac. 644; 17 A. & E. Ency. of Law (2 ed.) 625; 18 Cyc. 1336-1345; 24 C. J. 1189-1196; Woerner, Am. Law of Adm. (2 ed.) § 348; 13 Prob. Rep. Ann. 270; 11 L. R. A. (N. S.) 297; 34 Harv. L. Rev. 503.

10 See § 967.

11 See § 1068.

12 See § 1144.

13 See § 1034.

14 Slingerland v. Norton, 136 Minn. 204, 161 N. W. 497.

15 Peterson v. Vanderburgh, 77 Minn.

218, 79 N. W. 828. See Patten v. Patten (N. H.) 109 Atl. 415.

16 G. S. 1913, § 7283.

17 Mumford v. Hall, 25 Minn. 347, 354. 18 Breen v. Kehoe, 142 Mich. 58, 105 N. W. 28; Saxe v. Saxe, 119 Wis. 557, 97 N. W. 187; Holladay v. Holladay, 16 Or. 147, 19 Pac. 81; Smith's Appeal, 61 Conn. 420, 24 Atl. 273; In re Bauquier, 88 Cal. 302, 26 Pac. 178; In re Smale's Estate, 150 Iowa 391, 130 N. W. 119; In re Leland's Will, 219 N. Y. 387, 114 N. E. 854; 11 A. & E. Ency. of Law (2 ed.) 745; 18 Cyc. 77; 23 C. J. 1023; Woerner, Am. Law of Adm. (2 ed.) § 229.

19 In re Smale's Estate, 150 Iowa 391, 130 N. W. 119.