#### Munteith vs. Rahn, impleaded with another.

An administrator may dispose of the personal assets of the estate •without an order of court j but is liable under our statutes for the appraised value of the property, if the sale is made for less than such appraised value.

*Williams vs. JSVy,*13 Wis., 1, followed.

APPEAL from tbe Circuit Court for *Milwaukee*County.

One Damrt died intestate in Milwaukee county, in April, 1857, and one Bode was appointed bis administrator. In pursuance of an order of tbe county court, Bode sold certain real estate of his intestate; and Filner, tbe purchaser, gave his promissory notes for a part of tbe purchase money, secured by a mortgage on tbe property. Afterwards Bode, as administrator, sold and assigned'one of tbe notes and tbe mortgage to tbe plaintiff in this case. On tbe 26th of April, 1859, Bode was removed from bis trust as administrator, and tbe defendant *Bahn*appointed administrator *de bonis non.*Upon default in payment of tbe note assigned to her, tbe plaintiff brought this action to foreclose tbe mortgage. Tbe complaint alleges that tbe plaintiff paid Bode “a full and valuable consideration” for tbe note and mortgage. After a demurrer to tbe complaint bad been overruled, tbe defendant *Bahn*answered, denying tbe authority of Bode to sell said note and mortgage, and alleging that tbe estate bad never received any consideration therefor. *Filner*answered, admitting tbe facts stated in tbe complaint, and praying an order of tbe court directing him whether be should pay tbe amount due on tbe note and mortgage to tbe plaintiff or to tbe defendant *Bahn.*There was another defense, which, by stipulation, was waived in this court *211Tbe circuit court overruled a demurrer to the answer of *Rahn ;*and from this decision the plaintiff appealed.

*Small*& Goggswell, for appellant,

contended that at common law an administrator has the same'property in the personal estate of the deceased as his intestate had (2 Blacks. Comm., 511Williams on Ex’rs, 454), and his sale or assignment of any part of it cannot be avoided at law or in equity, where the vendee has purchased in good faith, without knowledge of any intended misapplication by the. administrator (Williams on Ex’rs, *ubi supra;*Toller on Ex’rs, 256 ; *Field vs.*Schieffelin, 7 Johns. Ch., 154; *Wilson vs.*Doster, 7 Ire. Eq., 231; Lord MANSFIELD in *Whale vs.*Booth, 4 T. R, 625, note; 4 Mass., 514; 2 id., 309; 5 N. BL, 592 ; 35 id., 321; 10 Vt, 116 ; 4 Hill, 492; 2 Md. Ch. Decisions, 94; 3 Ind., 369 ; 18 Ill., 116 ; 2 Bay, 321; 1 Miss., 749); and that there is nothing in the statutes of this state to change the rule.

*Van Deutsch & Winkler,*for respondent:

At common law an administrator is really the representative of his intestate, “ having the same property in his goods as the principal had when living.” His powers are discretionary. Under our statutes, he is the executive officer of the probate court. His duties and powers are ministerial. At the common law it was for him to satisfy himself of the correctness of the demands against the ’estate, and to allow or reject them, and also to determine the question of the sufficiency of assets; and if he rejected a just demand, or wrongfully refused to pay it on the ground of an alleged deficiency of assets, he was liable to an action by the party aggrieved. It was his duty to sell the personal property so far as it might be necessary to pay the debts and legacies ; and he was himself - the judge of that necessity. If followed of course that innocent parties purchasing of him must be protected. *Whale vs. Booth,*4 T. R, 625; Williams on Ex’rs, 796 ; Dayton’s Surrogate, 280; *Nugent vs. Gifford,*1 Atk., 463 ; 2 Blacks. Com., 511; 2 Kent’s Com., 415. But under our system it is not for the administrator to determine whether a demand against the estate is just or not, nor whether there are assets to pay it, or any, ;;and what propor *212tion of it. Tbe former question is to be determined by tbe county judge or by commissioners duly appointed by bim; and tbe others by tbe probate court itself; and tbe duty of tbe administrator is simply to execute tbe decision of tbe probate court. So when payment bas been decreed, if there is not sufficient money of tbe estate in tbe administrator’s bands, it is bis duty, not to sell, but to apply to tbe court for an order of sale; and when it appears to tbe court that such sale is necessary for tbe payment of debts, &c., it is its duty to make such order. Thus it appears that tbe whole ground on which tbe authorities above cited declare that tbe administrator bas tbe absolute disposal of tbe personal property, viz., *“*that in many instances be *must*sell in order to perform bis duty in paying debts ” &c., does not exist in this state, so far as it respects a sale without order of tbe court. “ *Cessante rations*legis, *cessatetipsa lex.”*

November 2.

*By the*Court,

Oole, J.

Under tbe stipulation of parties, tbe only question we have to consider on the demurrer to tbe answer is, whether tbe sale of tbe note and mortgage mentioned in tbe complaint, to tbe appellant, passed tbe title, it having been made by Bode, tbe administrator of tbe estate of Damrt deceased. It is contended that no valid sale could be made by tbe administrator, under our statute, without a previous order of tbe probate court. Tbe same question in substance was presented in tbe case of *Ely vs. Williams,*13 Wis., 1, and our decision was adverse to this position. We then held that an administrator could dispose of tbe personal effects of his intestate, and give a good title, without any order of tbe probate court authorizing bim so to do, because tbe title in law vested in bim. Tbe only object there could be for bis obtaining an order of sale from tbe probate court, would be for bis protection in case tbe personal property did not sell for its appraised value. If be should sell without such an order, be would be held liable to account for what tbe personal property was appraised at, whether it should sell for that amount or not. Hence tbe reason for obtaining such an order, and not because it was necessary to enable bim to give a good title to tbe property. *213There is no pretense that the sale-in this-case was not made in good faitb and for a valuable consideration. We see no good reason why it should not be sustained.

The order of the circuit court, overruling the demurrer to the answer, is therefore reversed, and the cause remanded for further proceedings.