shall be awarded against him as for his own debt, if it appear to the court that such suit was prosecuted or defended without reasonable cause. In other cases the execution shall be awarded against him in his representative capacity only.

SEC. 2478. Receipts by one executor.-One of several executors may receive and receipt for money. Such receipt shall be given by him in his own name only and he must individually account for all the money thus received and receipted for by himself; and this shall not charge his co-executor, except so far as it can be shown to have come into his hands.

-

SEC. 2479. Notice affecting executor: how served.Whenever the court shall make an order affecting an executor, and such order cannot be personally served upon him, service of su h order can be made by publication of a notice, stating the substance thereof, in some weekly newspaper published in the county where such order was made, for four weeks in succession.

SEC. 2480. Publication of.-When there is no newspaper published in such county, then said notice may be published in the newspaper published nearest to the county seat of the county in which said order is made, which publication may be proved as required in like cases in the court.

SEC. 2481. Effect of.-Service made as above shall be as effectual as if personally served, and suits and proceedings may be prosecuted or commenced, had and maintained, in all respects as if such notice or notices, order or orders had been personally served.

SEC. 2482. Failure to account: penalty.-Any executor failing to account, upon being required to do so by the court, or as he is required to do by law, shall, for every such failure, forfeit one hundred dollars, to be recovered in a civil action on his bond for the benefit of the estate, by any one interested therein.

No. 130.

Discharge of Administrator (or Executor).

IN THE MATTER OF THE ESTATE

DECEASED.} In Probate.

And now on this

day of

application of

18.., the

administrator of the estate of

deceased, to be finally discharged as such.

administrator coming on for hearing and it appearing to the

court that said administrator filed herein his final account of the affairs of, and his proceenings in, the matter of said estate showing that the affairs of said estate have been fully administered and settled by a final distribution of the property and effects of said estate, and payment of the said debts of the same (as the case may be) and it appearing that all persons interested have been duly notified by the filing of said final account and that said account appears to be full and correct, and the court being fully advised in the premises, it is ordered that the said account be and the same is hereby approved, and that said administrator be discharged from all further duties and reponsibilities as such administrators and that his official bond be hereby discharged and the sureties therein be exhonorated from all future liability thereon.

A notice to the effect that the administrator will file his final account and ask to be discharged should be served on all persons having any interest in the matter as provided in rule 7 of Probate Rules. See ante page.

SEC. 2483. Authority of executor.-An executor has no authority to act in the manner wherein his principal was merely executor.

In case of the death of an executor or trustee before the settlement of the estate for which he was acting, the court on application will appoint a new administrator called an "administrator de bonas non." See forms Nos. 32 and 33.

CHAPTER XXI.

ADMINISTRATOR DE SON TORT.

At the common law a person, who, without being authorized, meddled with the property of a decedent, was called an "administrator de son tort" and by such meddling he rendered himself liable for the debts of the decedent.

The Iowa statute on that subject provides as follows:

SECTION. 2484. Administrator de son tort.-Any person who, without being regularly appointed an executor, intermeddles with the property of a deceased person is responsible to the regular executor when appointed, for the value of all property taken or received by him, and for all damages caused by his acts to the estate of deceased, but his liability extends no further.

An "administrator de son tort" is liable under this section, in an action by a creditor or the regular executor or administrator to the extent of the value of the property of the deceased which has come into his hands. Elder v. Littler, 15 Iowa, 65.

Where the widow and heirs have appropriated all of the assets of the estate prior to the appointment of an administrator, they are liable as administrators de son tort to the extent of the value of the property appropriated. Madison Co. v. Shockley, 41 Iowa, 451. And it is no defense in an action against them, that an administrator has been appointed. Id.

SEC. 2485. Costs in action against heirs and devisees. In an action against the heirs and devisees, where the judgment is to be against them in proportion to the respective amounts received by them from the estate, costs awarded against them shall be in like proportion.

SEC. 2486. Tender by one.-In such cases any one may tender the amount due from him to the plaintiff, which shall have the same effect, as far as he is concerned, as though he was the sole defendant.

CHAPTER XXII.

SPECIFIC PERFORMANCE OF CONTRACT.

SECTION 2487. Specific performance of contract.-When a person under such obligation to convey real estate, as might have been enforced against him if living, dies before making such conveyance, the court may enforces a specific performance of such contract by the executor and require him to execute the conveyance accordingly.

In an action to enforce the specific performance of a contract to convey real property, executed by one who is dead, the administrator is a proper, though not a necessary party. The action may be against the heirs alone. Judd v. Mosely, 30 Iowa, 423.

In proceeding under this section to enforce specific performance of a contract to convey real estate, it will be advisable to join the heirs as parties with the executor, and thus conclude the rights of all parties interested in the land.

In an action to enforce specific performance of a contract to convey land executed by the decedent, the administrator is a proper party,

though not a necessary one. The action may be against the heirs alone. Judd v. Mosely, 30 Iowa, 423.

The petition in such action may be in the following form:

No. 131.

Petition for Specific Performance.

JOHN BROWN, Plaintiff,

The plaintiff states, that on or about the....day of ...... 18.., he purchased of one ... .....of.. .county, the following described real estate, to-wit; (Here describe the land) for the consideration of .....dollars, part of which, to-wit: the sum of ...... ...dollars he then paid in cash to said.... whereupon, then executed and delivered to the plaintiff his written contract whereby for and in consideration of the payment by the plaintiff of the balance of said consideration in three equal annual installments as specified in said written contract, a copy of which is hereto annexed and made part hereof, marked exhibit A, the said covenented and agreed to convey said real estate to the plaintiff by good and sufficient deed clear of encumberances, that the plaintiff at the maturity of the first and second of said installments respectively paid the same in full to the said... .....and at the date of the maturity of the last of said installments as specified in said contract the plaintiff offered and tendered the full amount of said installment to said.... ....and demanded that he comply with his said contract by conveying said land to plaintiff by good and sufficient deed according to the terms of said contract, which the said.... ...then refused to do and has failed to do; that afterwards on or about the....day of 18.., the said... .died and the above named.. .was on or about the....day of..... appointed executor (or administrator) of the estate of the said decedent, and that the said..... ..are the heirs of said deceased; the plaintiff further avers that brings into this court the sum of ...dollars (the amount due on the contract) and offers and tenders the same in payment and fulfillment of said contract on his part.

Wherefore he demands that the said....

as administra

tor (or executor) as aforesaid be ordered and decreed to accept said money and to execute the proper conveyance of said real estate described in said contract according to the terms thereof, and that plaintiff recover his costs herein.

SOLOMON FOURCEHAM,
Attorney for Plaintiff.

(Add Verification as Exhibit No. 13.)

SEC. 2488. Who made parties.-It is not necessary to make any other than the executor party defendant to such proceedings in the first instance; but the court, in its discretion, may direct other persons interested to be made parties, and may cause them to be notified thereof in such manner as the court may deem expedient. Heirs and devisees may, on their own motion at any time be made defendants.

In bringing in parties defendant in cases of this kind, in the absence of any order of the court relating thereto, the better practice will be to serve them with an original notice, the same as in an action in equity for specific performance.

SEC. 2489. Considered as one person-In an action against several executors they are considered one person, and judgment may be taken and execution issued against all as such, although only part were duly served with notice.

An executor or administrator may sue in his own name without showing that he does so in his representative capacity. Code § 2544; Oliver v. Townsend, 16 Iowa, 431. And where a promisory note is made to two persons as executors or administrators, and afterwards one of them assigns his interest therein to the other the assignee may maintain an action thereon in his own name. Carleton v. Byington, 17 Id.. 579. They may bring an action in their own individual or representative capacity, on a note made or endorsed to them, and for the wrongful conversion of the goods of the decedent in his life time. An executor or administrator of a party killed by the wrongful act or negligence of another may maintain an action against the wrong doer to recover the damages. Donaldson v. The M. & M. R'y Co., 18 Iowa, 280; Philo v. The Illinois Central R'y Co., 33 Id., 41.

An executor or administrator is the proper party plaintiff in an action on an express covenant, for rent accruing and due during the life time of the decedent, but the heirs are the proper parties to sue for the rent accruing after his death. Foteaux v. Lepage, 6 Iowa, 123; Lepage v. McNamar, 5 Id., 124.

Where no estate or reversion is left in the landlord, rent is reserved to the executors or administrators, they, and not the heirs, must be plaintiffs, in the action. Cruse's Digest, 321.