and the executor or administrator had a very limited right of entry and search. In this country it is believed that the court will sustain a personal representative in forcibly breaking into premises, and in opening locks to safes, trunks, etc., if any attempt were made to hinder him in his search. The right of a personal representative is not entirely ascertained in this particular, and it would be expedient in any such case to use courtesy and diplomacy to effect the desired end rather than to proceed forcibly. When there are statutes authorizing such search the procedure is prescribed.

§ 94. Enumeration of Property to Be Taken Over

In some of the states the property to be taken over is enumerated. An enumeration would not be held to be so inclusive, however, as to prevent taking other property not there mentioned. The following are some of the articles which a personal representative may take over:

Any cash in hand or on deposit-bonds, notes, book accounts, debts, and claims of all kinds.

All goods, chattels, and choses in action-furniture, fix-
tures, and articles of personal use.

All contract rights that do not involve personal services.
All fees, salaries, or commissions due.

Any partnership interest, including good-will.

Dividends declared while decedent was alive or rents ac-
crued while he was alive.

Any leases for years would be personal property.
All property owned by decedent when he died. The
property to be taken would not include goods of
others or money collected for others or money held
in trust by the decedent. If the personal represen-
tative owed the estate money, that should be included
as an asset.

Any general life insurance. Any life insurance in the name of a particular beneficiary would not go into the general estate.

Property retains its character as personalty or realty unless the will directs that personal property is to be exchanged or paid for realty, or that real property is to be sold and the consideration received to be dealt with as personal property.

$95. All Claims Must Be Collected

The personal representative is expected to use his discretion in collecting all accounts. He must not waste the estate by collecting, or trying to collect, desperate claims. If he can secure a contribution to meet the costs from those who are to benefit by the collection, that would justify his outlay. Otherwise the representative will not be responsible for failure to collect doubtful claims, and indeed he might be held responsible if he did waste the estate doing this. If there were annual crops, the personal representative would have to see to harvesting them, selling them, and adding the results to the estate.

All actions arising from contracts survive and can be sued upon by the representative. Actions for injuries to person or property do not survive at common law, but in this country an action for damage to property does survive. In each state the causes of action for personal injuries that survive are defined by statute. Generally, an accident which caused the decedent's death would be a cause of action that would pass to the personal representative. Generally, however, actions for slander, libel, breach of promise, and similar matters would not survive.

REVIEW QUESTIONS

I. What are assets? What are liabilities? Distinguish between personal and real assets. After death, who takes immediate title

to the personal assets? What dealings may the personal representative have with the real estate? What is an executor de son tort? What is his position legally?

2. If anyone damaged property of the estate before an executor or an administrator had been appointed, could the representative sue for it when appointed?

3. If some stranger took possession of a jewel specifically left to the testator's daughter, who could bring suit to recover it, the daughter or the executor? Why does all title have to pass through the executor?

4. What is the duty of the representative in regard to the assets? 5. How is an executor to ascertain the assets belonging to the estate? What rights of search would he have in your state?

6. What kinds of property would a personal representative take over? What would he not take? If the representative owed the decedent, would the debt be an asset? What about life insurance? Rents? Dividends? Loans to decedent? What is the rule as to personal and real property?

7. What is the representative's authority as to suing on important claims? What actions can he sue upon? What actions do not survive?

CHAPTER XII

CARING FOR ESTATE FUNDS

§ 96. Bank Deposits

The executor or the administrator of an estate usually has no hard and fast rules to go by. He must in every case consult the statutes of his particular state in order to find what restrictions or privileges he has. If the laws do not state his responsibilities fully, he is expected to use common sense and act in all respects as a careful business man would in conducting his own affairs.

A rule which cannot be too much emphasized is that the cash funds of the estate should not be treated as, or even mingled with, the representative's own. The only valid exception to this is in the case of a trust company, which of course banks within itself the funds of estates for which it is acting.

All receipts of cash should be deposited in some bank of recognized standing, and all disbursements made by check. There may be cases in which the estate is of so small an amount that it is not practicable to keep a separate bank account, but no representative should willingly place the estate under him in this category if he can find any way out. The advantages of putting all cash through the bank are well known. Receipts, when in other form than currency, are by this method detailed on the bank's records as well as on those of the deposi tor. Disbursements furnish their own proof.

If a cheque bears on its face or back any indication of its purpose, it is the best receipt for money paid that can be secured. If it bears no evidence as to its purpose, but can

be readily identified with a particular bill or invoice, it still
is a better voucher than a receipted bill.'

There can be no reason why some of the receipts should be deposited and not all. More than one bank should not be used unless the amount of cash on deposit at a time is so great that it is not considered desirable to risk it with one bank, or where there is other good reason. Most banks will allow such an account to be opened before the issuance of letters but usually will not honor checks until served with the letters testamentary.

In order to avoid personal liability in case of bank failure the fiduciary character of the account must always be indicated by the name in which the account is deposited. This may be accomplished by making the deposit in the name of "Estate of C. D. Harris, Alfred Rich, Trustee," or "James Chapin, Executor." If the deposit is made in his individual name without the designation of his fiduciary character, he is absolutely liable for loss, regardless of any other fact.

If the bank chosen is in good standing and there is no rea son why a reasonably prudent man should hesitate to deposit his personal funds in it, the executor will not be charged with a loss through the failure of the bank, unless conditions are such that it is his duty to disburse the money at once. But he will be charged if he makes the deposit under an agreement to let it remain a certain length of time, or if through the exercise of reasonable prudence he might have ascertained the bank's unsoundness.

In short, the liability of the executor for any loss of money depends upon the care he has exercised in the protection of the funds. He must care for the assets of the estate as diligently as he would if they were his own property, or even a little more so. He will be required to make good a loss if he has

1 Montgomery, Auditing Theory and Practice, Ronald Press Company, 1919.