especially non-intervention wills. Such wills are formidable in appearance and are pleasing to the lawyer because his client is usually happy to pay an extra charge for having such an instrument drawn. But after the testator dies, the heirs and the executors often fail to find the same satisfaction in the instrument as did the testator who signed it.

In connection with non-intervention wills an interesting question arises as to the extent of the executor's authority to sell real estate. Can an executor sell real estate without an order of court when he is acting under a so-called non-intervention will which contains no specific power of sale? There are two distinct forms of non-intervention wills in common use. According to one form, the testator provides for administration outside of court, and in addition incorporates in the will one or more paragraphs specifically authorizing the executor to sell. By the other form, the testator does not give any authority to sell, but contents himself with general provisions authorizing administration outside of the court. It is wills of this latter class, which may be properly called short form non-intervention wills, which present the question now suggested.

Our statute declares (Ballinger's Code, § 6196) that where the will so provides "estates may be managed and settled without the intervention of the court," and further, (§ 6198) that "such executors who have been heretofore acting under wills dispensing with letters testamentary or of administration, and those who may hereafter act under such wills, shall have power * * * to sell and convey the real and personal property of their testator, where the will authorizes them so to do, without an order of the court for that purpose, and without notice or confirmation of sale." Cf. §§ 6250, 6279, 6292.

It is evident that the sale of real estate is not necessarily any part of the administration of an estate. Most estates are administered and closed without any sale of real estate being made. The ordinary duties of an administrator are simply to collect and preserve the property and to pay the debts and legacies, and if these ends can be attained without the sale of real estate, then such a sale is no part of the administration. It is only when the estate cannot be otherwise administered that the law permits the administrator to sell real estate, and even then in order to effect a sale, he must observe a distinct and special proceeding outlined in the statute.

When, therefore, the statute provides that under a short form of non-intervention will the estate may "be managed and settled" outside of court it does not necessarily follow that the executor may sell real estate. On the contrary the sale of real estate being an extraordinary

step and being no part of the necessary or ordinary course of administration would seem to be wholly outside of the section of the statute conferring general authority upon the executor to administer outside of court. And this view is strengthened by collating this section with other sections of the statutes, which provide specifically that executors may sell real estate "where the will authorizes them so to do."

I am not aware of any decision passing upon the question under discussion. The decisions in Provident Company v. Mills, 91 Fed. 435, and Miller v. Borst, 11 Wash. 260. contain language which might be supposed to relate to this question, but a careful reading of those cases does not lead to the conclusion that the court was intending to pass upon or express an opinion upon this precise question.

In the American and English Encyclopaedia of Law (2nd ed.), at page 1046, it is said, "Power to sell real estate is not conferred on the executor merely by giving him full and entire control of all the estate, or by authorizing him to settle the estate as he may deem best for the interest of the heirs."

In the case of Brenham vs. Story, 39 Cal., page 179, the court considered the constitutionality of an act of the legislature which gave to the administrator of a certain estate, general authority to sell the real property belonging to the estate, regardless of the purpose or object of the sale. The supreme court, in pronouncing the act unconstitutional, used the following language with reference to the powers and duties of an administrator:

"The duty of an administrator is to take charge of the estate for the purpose of settling the claims, and when they have been satisfied, it is his duty to pass it over to the heir, whose absolute property it then becomes. To allow the administrator to sell, to promote the interests of those entitled to the estate, would be to pass beyond the proper functions of an administrator, and constitute him the forced agent of the living for the management of their estates.

"The administrator, therefore, was authorized to sell, not to pay debts; but when in his judgment a sale would advance the interests of those entitled to the estate, the sale was to be in the interest of the heirs as owners, and not to satisfy the paramount lien imposed by law upon the property of the decedent. It is clearly an attempt to use the office of administrator to speculate with the estate of the heirs, and not to administer the estate of the deceased.

"This is plainly beyond the power of an administrator, as such. It is no part of his duty or authority to manage the estate for the benefit of the estate or of the heirs. So far as they are concerned, it is his duty, simply, to preserve the estate until distribution. He cannot make investments for them, or satisfy adverse claims, or sell because the estate would profit by it."

It may, nevertheless, be true that an executor under the short form of non-intervention will has authority to sell real estate in order to

raise money to pay the debts or to meet the expenses of administration, even though he has no power to make such a sale generally. If such be the case, then the validity of any particular sale made by an executor under such a will would depend upon the existence of facts outside the record. If the sale was made to pay debts or expenses, then it would be valid; otherwise it would be invalid. A title thus depending upon circumstances not appearing of record would be unmarketable.

As a rule of practice, therefore, it must be considered as true that under a short form of non-intervention will no marketable title can be made by an executor unless the proceedings for the sale of the property are conducted in court. This rule of practice leads to this curious result: the sale must be made pursuant to court proceedings, and, therefore, under the statute can be made only for the payment of debts and expenses of administration; if the sale is made for such purposes, then probably the executor can make it without any court proceedings; nevertheless, in order to show of record the purposes for which the sale was made, the court proceedings are necessary. The steps by which the conclusion is reached come very close to reasoning in a circle, but carefully analyzed they do not have that fault.

It has been suggested that, even under the long form of a nonintervention will, the power given an executor is incident to the duties of his office and cannot properly be exercised by him except for the purpose of raising money to pay debts and expenses. It is conceivable that a will could be so drawn as to require such a construction, and if so, such a long form of non-intervention will would not differ in construction from the short form, and in the case of a non-intervention will, even in the long form, properly bearing such a construction, no title could safely be taken from the executor.

But the powers ordinarily given in a long form of non-intervention will are so comprehensive as to give the executor a general power of sale, even for the purpose of conversion into money or change of investment, and it is safe to take a deed from such an executor without inquiry as to the precise object which he has in view in making the sale. Such is the common practice.

With reference to non-intervention wills, there is a further very interesting question as to how far the power of sale given in the will to an executor is personal to the executor and how far it can be exercised by an administrator de bonis non or with the will annexed. This question I do not propose to discuss. It is sufficient to say that it is in all cases a question of intention to be determined from the interpretation of the instrument as a whole. Being a question of intention, no rule can be laid down which will enable one to ascertain satis

factorily how the intention is to be ascertained in any particular case. In other words, the whole matter is shrouded in much doubt and obscurity.

The suggestions of this paper may be summed up in four brief sentences:

Give the name of the grantee's wife or husband in all deeds.

Accept no conveyance executed under an attorney in fact, if execution by the principal can be obtained.

Where the deceased was married, accept no executor's deed unless the surviving spouse joins in its execution.

Accept no executor's deed executed under a so-called short form of non-intervention will.

THE EVOLUTION OF STATE LEGISLATIVE

METHODS.

By HENRY MCLEAN, of the Mt. Vernon Bar.

Mine is a large subject-The Evolution of State Legislative Methods. It would have been better, had it been assigned to a great publicist, rather than to a busy country lawyer. It is difficult indeed to treat the subject at all, keeping within the limits of a suitable paper for this occasion. I will, however, treat it from the standpoint of science, rather than undertake to recount those historical changes that have taken place in the development of legislative methods, and brought us to the system now in vogue in self-governing nations.

I cannot hope to be exhaustive, or even to assemble many of the myriad of pertinent illustrations of the principle I undertake to enunciate. My effort will be confined to a statement-more or less clear—of the scientific, that is, the natural, principles which have clearly manifested themselves in the process of the evolution of free institutions. I shall, also, direct attention to some of the unscientific phases of our present forms of legislation; and, although many years in advance of the reforms that must surely come, will suggest some changes.

It may be safely stated as a fact, that legislation, to become a harmonious system of jurisprudence, must be constructed and given form by able men, qualified by years of study and training to recognize the trend of society, and able to lay down a system of rules and regulations that are practical, and suited to the wants and necessities of the people. Until comparatively recent times, this was enough, and embraced the whole duty of the law-giver; but, since democratic ideas have dominated the world, this is not enough; these rules must be submitted, in some way or other, for the approval or rejection of the people. Our system of state legislatures, and most of the schemes for legislation by the people, about which we hear so much of late, are fatally defective in the cardinal principle upon which the great systems of jurisprudence have evolved. They presume that the people, the great masses, are qualified to construct laws applicable to the conditions of society, when, as a matter of fact, they are not, and the affairs of life are becoming more and more complex each year, making the task of legislation far more difficult. The fact is, and it should be readily and willingly recognized by all, that constructive talent in the human race