THE GENERAL POWERS OF THE FI DUC IARY

LYN N COLLI NS Lynn Collins

The General Powers of the Fiduciary

I. Introduction

Thi5 paper deale with the general powers of the fiduciary as de£~ned to include administrators and executors of probate estates (personal representatives) and

trustees. It will include a discussion of the power of a fiduciary to execute oil and gas leases and related instruments in Texas. It also includes a dis­ cussion of the liability of the fiduciary for torts and contracts. Personal

representatives are treated in parts II and III. Trustees are tr~ated in . parts IV and V.

II. General Powers g! Personal Representatives

Personal representatives obtain authority from the proVisions of a will and from

the probate laws. An executor derives power frOm both, :.loihile .. M' administrator derives power only from the statutes. The trend today is to extend the powers

of personal representatives by broad grants of power both in wills and in 1 .. statutes. A power that is not granted by the instrument or the statutes may; in some circumstances, be held to be imJPlied because it is necessary to carry out the purposes of the administration. Those purposes are to wind up the estate

by paying its debts and di~tributing the p~perty to the heirs or legatees as quickly as possible. Most statutes Which define the powers of the personal representative make clear that they do not prohibit implication of powers. For example, the Texas Probate Code. provides that the principles of the common law 2 ,apply unless they conflict with the provision of the statutes. The UnifonD. Probate Code has a similar proviSion.)

. The extent of the power of the personal representative can be altered by the

. nature of his appointment. Thus, in Texas, a person capable of msldng a will can provide that. no other action need be had in the county court than the

(1) probating and recording of the will, the accounting, and the final approval by the court.4 Representation is then by an independent executor who has all the powers of the personal representative, but need not get a court order for their exercise, except where the Code specifically provides for action in the court.5 A successor appointed by the court to succeed an independent executor, however, will have only such powers as the court sees fit to grant him in the best inter- ests of the estate, equal to or less than the powers granted to the independent executor in the wi:).l.g... Similarly, temporary a~nistrators have only:: such powers as are specifically expressed in th~ order of the court appointing them or in .subsequent orders of the court.7, Undpr ·the Uniform Probat; Code a dis-

~inction is also made at least as to the exercise of powers for representatives of different classes. Under supervised administration, a supervised personal repreeentative has all the powers of a personal representative, but he shall not exercise his power to make any distribution without prior order of the 8 court. A special administrator appointed in informal proceedings has the power of a .personal representative under the Code which are necessary to perform his • duties; but if appointed in formal proceedings, his powers may be limited in the . 10 order of appointment. The powers of personal representatives may be exercised without notice, hearing, or order of court.ll A successor personal representative , has the same powers as the original personal representative, except for thOse . 12 expressly made personal by the will.

Delegation Q! Powers

The law in a majority of jurisdictions is that an executor or administrator can not delegate discretionary powers conferred on him by law or by the terms

of the will. He can delegate only acts that are mechanical in nature. For example, when the representative has a power to sell, he can not delegate the

right to decide the feasibility of a sale or its terms, but can delegate the

right tp execute the deed.13 TeXAs is in accord with the majority rule.14 ·The

(2) Uniform Probate Code, however, would allow delegation, even of discretionary ' powers.15 The authors consider this change "reasonable ~d for the benefit of

interested persons. ,If delegation is expres~ restricted 'in the will, or donied by implication, however, it will not be, permitted.16

Under many modern statutes, if there is more than one personal representative the act of one will be as valid as if all had acted jointly, and in case of

resignation, deat~, or removal of one or more,' the remaining administrator may act alone. The Texas statute is in accord, but states that' joint action is , ' 17 still required for a conveyance of reil property. The Uniform Probate Code still required joint action of joint executors or administrators, except when the act is that of receiving property due the estate or when the concurrence of all CBrillot readily be obtained in the time reasonably available for action necessary to preserve the estate. It is also allowed When there had been a 18 lawful delegation of power under the Code.

Right ,of Possession of Estate Property 'The personal representative has the power and duty to take possession of the property which the decedent possessed or had the right ot possess at death, in

order to distribute the property according, to law. In Texas the representative has 'only a temporary right to possession, since the title to property vests at death in the heirs ot testamentary beneficiaries.19 The Uniform Probate Code, at least in the opinion of the author&, make the nature of the personal ... ' 20 representative's interest irrelevant. It gives the personal representative discretion to leave real or tangible personal property in the possession of the person who is presumptively entitled to it, or surrender it to him if he is not

in possession of it. However, if the personal representative decides that possession of an asset is necessary or desirable for purposes of administration, his judgement is made conclusive in any action for possession. His judgement

(3) may later be questioned as a breach of fiduciary duty, but his possession will 21 not be disturbed during administration. The Texas. Statut.e seems to make no provision for delivery to those presumptively entitled to the property .22 It does provide that the representative is entitled to possession fn common with other owners of any property owned in cornmon.23 The Uniform Prob~te Code ex- pressly provides that the personal representative has power to avoid transfers ' t~, ';;;: 3 by the decedent Which were void or voidable as against his creditors, so far as necessary for the payment of unsecured debts of the decedent.24

Power 1Q Deposit ~ Invest Money , , Since the purpose of the administration is the collection and distribution of the assets, any money should normally be deposited in a safe bank, . until dis­ tribution. It is not usually within his power to invest the money, even in land mortgages or government bonds, unless the power is granted by the decedent. The power to invest is sometimes implied. Thus, where distribution is to be 25 delayed the funds should be deposited at interest. The cases are in conflict as to Whether a deposit in a bank with interest is an investment and if it,is not thereby an investment, whether the fact that it is a time deposit makes it . an investment.26 Statutes often permit the fiduciary to invest the liquid assets of the estate. The Uniform Probate Code does so. Under its provisions, the " personal representative may deposit or invest the funds "in federally insured ' interest-bearing accounts, readily marketable secured loan arrangements or

other prudent investments whic~ would be reasonable for use by trustees gener­ 27 all. This power j 5 rand; +; oped on t~e 1 ack of contradictory pron-sions in

. th~, the assets being not immediately distributable, and not needed to meet currently payable debts and expenses. The Texas Probate Code allows deposit of funds upon agreement with the surety or surities of his bond or upon authorization by the court, in specified depoSitories only. If the deposit was made under a court order, these assets cannot ~e withdrawn without 213 a court order.

Power Ml. Comprorn:i se Debts ~ the Estate Under the Uniform Probate Act, the traditonal power of the personal representative to bind the estate by a compromise of debts without a court order is perpetuated.29 In Texas, however, a statute makes the power dependent on the previous approval of the probate court.30 The representative has no discretion.31

Power to Sell Personal Property

Traditionally, the representative is able to ·pass good title to · ~ersonal property of an estate without a court order. The purchaser is protected if he believes that the personal property is the individual ·property of the representative.32 Today, in absence of statute or express provision to the contrary in a will, this rule governs. However, statutes in most jurisdictions change at least some

aspect of this rule. Texas, for example, requires that any sale of person property, even by an independent executor, be made under court authorization to be a valid transfe~3unless there is an expres~ authorization in the will. 34 Even the sale of perishable personal property is not excepted from the necessity of a court order, although it is mandatory that the representative apply for

an order of the court to sell it.35 The Uniform Probate Code follows the tradit ional rule in permitting sale of personal property without a court order, at public or private sale. It also permits the sale to be not only for cash but for credit, a power ~ich was in doubt under the traditional rule.36 The Probate Code permits an authorized sale to be for credit but only for six months.

The Uniform Fiduciaries Act, ~ere adopted, protects the title of the pu, chaser from the fiduciary to a greater extent than the common law rule, by limiting the duty·of the fiduciary to question the authority of the fiduciary. It has not been adopted in Texas. The Uniform Probate Code also protects the title of the purchaser from a representative.37 Both provisions apply for the pro­ tection of 'purchasers of real property as. well ' as person~ property.

Power i2. ~ ~ Property , 'When the will gives the representative an express power of sale of real proper- ty, his authOrity is clear, and there is generally no need to obtain court a authority. The power may also be implied, but courts are reluctant to infer the power when the i:"l' ~ention or necessity for it is not clear. &1so, it has , been held that the bare power of sale doesn't include a power to exchange land,38 or a power ~f possession.39 Texas 'cases have held that a power~o sell is I I implied when there is a testimentary direction to pay debts40 or when there are 41 in fact debts in existence. If there are no debts, the executor has no power to sell implied by a provision for sale to pay debts.42 The Texas Probate Code allows sale where the terms of the will pennit, without a court order. .The court may also order the sale when there are debts to be paid and for other listed purposes. The sale may be for cash or credit, and can be at public or • private sale. If the sale is under order of the court, the court will determine whether it will be for cash or credit and at public or private ·sale.43 The

Uniform Probate Code pennits sale of real property without a court order unless

the terms of the will or an order in a fonnal. proceeding restrict the Power. 44

Power i2. Perform Contracts 2£ ~ Decedent 'When the decedent made valid contracts. before death which were unperformed~ the personal representative is under a legal duty to perform the contract unless the performance is of a personal nature and the obligation is therefore dis­ charged by his death.45 'Where it would be economically advantageous to the

estate, however, most authorities suggest that the. personal representative

should refuse to complete the contract even though he becomes liable in his representative capaCity for the breach of contract. (A discussion of the

liability of the fiduciary for contract follows later in this paper.)

(6) The Uniform Probate .Code specifically gives the representative the power to refuse performance of the decedent's cont~acts.47

Power iQ. Lease In Texas a power to lease either real or personal estate property for a

(periOd not to exceed a year is given by the statute to the personal repre­ ~entative without the necessity for a court order, even when no authority is given by the will; The representative will be required to account to the estate for the reasonable value of the rent. He must, if he rents the property on credit, require the lessee to exec~te a'note for ·the anount, of the rent, and

if the representative does not do th~$, he is l iaHe for the full amount of the 46 rent. The Uniform Probate Code' also allows the fiduciary a power to lease either real or personal property of the estate, except as restricted by the will or an order in a formal proceeding, but goes farther in allowing a ·lease for .credit without security for unpaid balances.49 If the lease was round to be improper to make the fiduciary would be liable- under the general liability: for breach of fiduciary duty provision.50

Power in a personal representative to execute oil and gas leases and related

instruments in Texas is discussed later i~this section.

Power iQ. Borrow Money The Uniform Probate Code provides that the personal representative can borrow money with or without security'to be repaid from the trust assets or otherwise.

No court order is required~l The Texas Probate Code sets specific purposes by which money may be borrowed with the trust property as security and requireS­

that it be done under court order with opportunity for a hearing by interested persons. 52. Power 1Q Continue Decedent1 s Business

As a general rule ·the power to continue the decedentls busiress can be given by will, by consent of the interested parties,' by statute or by court permission. There can also be an implication of the power to carry on the business tempo- , rarily, but only When it is necessary to preserve the assets of the estate or to realize on the assets. 'An example of this necessity is When a crop must be harvested for realization or When a business must be operated in order to sell it as a going concern. 53 Even the authority given in a will will be strictly con- . , , stru~against, grant of the power to operate ·his business after' his death, and oral instructions will not support the grant.. 54

Statutes frequently permit the carrying on of the business by the personal representative, with permission of· the court. The Texas Probate Code provides that the court can so order,provided the disposition of the business hasn1t been specifically directed by will, and the immediate sale is not required for p payment of debts of the decedent or other lawful purposes and provided it is in the best interests of the estate.55 The Uniform Probate Code provides for a • , power to continue the business for a period of not more than four months with- out a court order, if continuation is a reasonable means of preserving the value of the business including good will. An order in a formal proceeding "- can authorize operation for a longer period, provided all persons interested in the estate are parties. A third possibility. of operation ie provided for When

the business is incorperated by the personal, representative and none of the adult probable distributees Obj~cts.56

Power to Execute Oil i!n!! ~ Leases i!n!! Relat ed Instruments in Texas In Texas a personal representative acting solely under court orders may .be

authorized by the court to execute a mineral lease for the exploration for, development and production of oil, gas, liquid hydrocarbons, metals and other minerals belonging to the estate. The lease may contain unitization

(8) provisions. 57 The personal repr~sentative must follow the procedure pre­ scribed by the statute. He must file with the county clerk of the county where the probate proceeding is pending a written application aSking for

autho~ty to lease property of the estate for exploration for and develop~ment of minerals. with or without unitization. The application must , contain ' certain information" set out in the statute.58 The judge will set a time and place for a hearing on the application. 59 The personal repreeentative must

give notica"to all persons interested in the estate, which must be served at . 60 least 10 days before the hearing. If tbe prescribed procedur~ is not

followed, the court order authorizing' the making of the lease will be null and VOid,61 except when sufficient facts are set out in the application to permit the court to conclude that it would be to the advantage of the estate to allow the lease to be made privately and without conpliance with the reqUl.remen. t s. 62

It has been held, however, that the provision permitting the court ('~, to authorize the making of such a lease by a personal representative is not applicable to an independent executor and the court has no jurisdiction to grant an independent executors application for authority to execute oil and . 6 , - gas leases. 3 It wouid ~eem to be applical>le to temporary administrators and administrators with the will annexed, however, because they act solely under orders of the court and thus come witbing the tenns of the statute.

When there is an existing mineral. lease oD property owned by the estate, and

pooling and unitization is not adequately provided for, the court can author­ ize the committment to an agreement providing for the operation of areas as a pooi or unit.64 The statutory procedure requires a written application and a hearing, but not notice.65 This provision seems to apply to independent .. (;.) executors~~~ll as other representat1ves. Under the Uniform Probate Code, a personal representative, unless restricted , by the will or order in a formal proceeding, enter into a 'lease or arrangement for exploration and removal of minerals or other natural resources or enter into a pooling or unitization agreeme~t.66 A supervised personal representative • could not enter into an oil or gas l ease of estate property without 'prior order of the court.67 A special administrator appointed in informal pro­ ceedings would have this power only if necessary to perform his duties.6S If he were appointed ,in formal proceedings he would have the power unless it was limited by his appointment or his duties as prescribed.69 Successor personal representatives would have the power if the original representative did, unless

it was made personal to an executor named in the will.70

.zzr.o.. Tort Liability 21 ~ Personal Representat.ive When an executor or administrator commits a tort in the course of the adminis- tration, the representative must be sued in his individual capacity, and the judgement must be satisfied out of the representative's own property, rather . 71 than from the assets of the estate. However,' where the trustee converts ~he property of another in the mistaken belief that it belongs to the 'estate, a representative has been held liable in his representative capacity as well, and execution against the assets of the estate was held justified.72 " Ordinari]jy, the representative against whom a judgement is obtained in his individual capacity can't be reimbursed from the estate, although exceptions

hqve been recognized where the estate ~as . benefited from the representative's , . . . conduct o~ which the judgement is based,73 or he has claimed property erroneously but in good faith.74

The Uniform Probate Code, where adopted, would change the traditional rule

to the extent ~at a personal representative will be individually liable for tots committed in the course of administration of an estate only if he is

personally at fault.75

(10) b. Cont r act Liability 2f ~ Personal Represent ative

When contracts were made by the decedent, the personal representative is sued thereon in his official capacity. However, When the contract is entered into by the personal representative, even When it is for a proper aqministrative expense for Which 'the personal representative will be reimbursed, the other , contracting party must obtain payment from or sue the personal representative in his individual capacity. When the personal representative is insolvent , an exception allows suit against him in his representative ,capacity by creditors for reasonable expenses of the funeral and preserving the estat~.?6 The representative cannot avoid personal iiability for his contracts by entering into the agreement "as executor"?? or by signing in the name of the' estate "by" the representive.?8 He can 'stipulate in the contract that he is not personally liable, and it had been held that the promise of the personal representative is to perform only as far as assets and court approval permit.?9 He is under a legal duty to perform the contracts of the decease9 Where the

performance is not of a personal nature, and is liable in his representative , capacity for nonperformance. Nevertheless, he has the option of non-performance When that is advantageous for the estate, even though the estate is thus sub-

jected to liability. Provided his choice ,is determined by good business judgement, even if a loss results, he will not be guilty of a breach of , fiduciary dutySO and will be reimbursed for his expenses.

\ The Uniform Probate Code changes the traditional rule to make the personal , " 'representative liable individually on his contract entered into in a fiduciary capacity only if he fails to reveal his representative capacity and identify 81 the estate in the contract.

IV • General Powers of £!. trust ee

The powers of a trustee are primarilf-y determined by the trust instrument (or oral declaration) When the trust is an express trust. Trust statutes make -

(11) , clear that the powers which they enumerate are given to th~ trustee unless the instrument has express proviSions to the contrary. Thus the Uniform Trusts Act affirms the power of the settlor to relieve the trustee from any or all of his duties, restriotions and liabilitiss which would otherwise be fmposed. The Texas Trust Act begins its enumeration of the flowers, duties, and responsibilities of trustees with the words "In the absence of contrary or limiting provisions in 'the instrument creating the trust ... the trustee of an express trust is authorized: 00" Since the terms of the trust instrument are subject to judicial interpretation, a

, second source of power is is the court. Courts will find implied powersl- those I • inferred to have been intended by the settlor although not made express, where , 84 they are necessary or appropriate to carry out the purposes of the trust. Judicial intervention is also possible even when the trustee has discretion to act. Where the trustee's powers are ancillary to his duties, the court has control over that exercise of discretion. When the powers are not ancillary to a duty but wholly discretionary as to exercise or non-exercise , "the court still • retains its right to intervene, but will not do so in the absence of a clear abuse of discretion.85 Statutes are the final source of a trustees power. He has the powers there enumerated unless the trust instruffient (or oral declaration) expressly states that he does not have them. It is not necessary for the settlor of a trust to list them. Statutes are, of course, subject to judicial interpretation• • Most apply only to express trust, as do the Uniform Trusts Act and the Texas , 86 Trust Act.

Power ~ Delegate Authority Because the beneficiary of a trust has a right to expect individual performance, the trustee cannot delegate the ,whole management of the trust estate to another.' He can delegate only the performance of administrative details.S? Thus, ,when a trustee is empowered by a statute to employ attorneys when reasonably necessary,

(12) as he is 'in Texas,8~e must still exercise his own judgement in following or not following that advice. If a trustee is held liable for acts of agents ' whom he had a right to appoint, the trustee would have a right to be indemni­ fied from trust funds.89

Individual Action ~ Joint Trustees \ When there is more than one trustee of a trust, joint action is required unless express authority to the contrary is given by 'the settlor or by statute, or ' when a lawful detegation is made to one of the members. Tge Texas Trust Act has abrogated this rule in part, by permitting a power to be exercised by a I majority of the trustees. A dissenting trustee is protected from liability if he expresses his dissent in writing to his co-trustees at or before the action. It also permits the surviving trustee of several to exercise the powers of all.90 The Uniform Trusts Act also has both' of these provisions.91 Neither the Uniform Trusts Act 92nor the Texas Trust Act93change t~e general rule that because the settlor is presumed to intend that the trust continue until its ~ses are accomplished, the express and implied powers Will pass to a successor tru~tee.94

Power 2f. fu!:l& Originally this power was not attached to the trust office, because the original purpose of the trust was thought,to be to keep the property safe.95 ' Now, however, trusts are concerned with management and investment, so the old

rule is usually changed by statute, express provision in the trust instrument, or both. The Texas Trust Act9,,6is typicai in that it permits sale where the trust instrument does not specify that the property should not ,be sold. Moreover, courts have shown an increasing tendency to find the power of sale implied.97 A power of sale has been held to be implied, even when the terms of the instrument

seem not to warrant it or even expressly forbid i~when it is necessary to preserve the trust property. Examples are cases of wast=g. secUl'l.·t· loes 98and unprod uc t·love ,

real estate.99 (13) Power 12. lease Since one of the purposes of the trust is to provide income from the trust property, the power to lease' is implied despite a lack of 'an express grant of power, unless it is expressly denied by the settlor. ::n The settlor mayor may • hot specify the term permissible for a"lEmse. If he does not the implied power is to lease for a reasonable time.1OO Statutes often reiterate this power, as 10l does the Texas Trust Act. Interpretation of the provision has held it to be a power to lease for a reasonable term, even When the term extends beyond the term for which the trustee executing the ~ease will serve.102

Power 12. Execute Qi1. ~ Gas Leases ahd Related Instruments ~ Texas When the settlor has expressly conferred the ,power to execute an oil or gas 103 lease, the trustee may do 60. In some jurisdictions the power bas been held to be implied by the instrument, although courts are reluctant to infer

this power from a general power to lease the t~st res. There is much 104 variation in this area. That this power was implied in the trust instrument 10 by a general powe~ to sell was the holding in

personal. The traditionac~rule has been that the injured person cannot reach the trust assets unless the trustee is insolvent and would be entitled to l1l reimbursement. Both the Uniform Trust Act and the Texas Trust Act change the traditional rules about the tort liability 'Of the trust estate.ll2 and the right to exoneration or reimbursement for torts.1l3 Both allow the trustee to be sued in his capacity as trustee for a t6rt connnitted during his administration. (or in his individual capacity) providJd that the tort was a common incident of the kind of business activity in \'Ihich the trustee was properly engaged for the trust, or the trustee was not a t fault, or the tort increased the value of the property. If the first two alternatives do not apply and the third does,

c,ollection can be had only to the enent of the, increase in value. If any of the conditions are met and the trustee has not discharged the claim, he can be

exonerated with the trust property, or having }'laid the claim, can be reimbursed., . To take advantage of this provision however, the plaintiff must give at least

thirty days notice ~efore beginning action to each of the beneficiaries known to the trustee and the trustee must furnish a list to the plaintiff.

" Contract Traditionally a contract made by the trustee in his fiduciary capacity has been

regarded as his own contract and not that: of the trust estate. A suit on the contract must be against the trustee personally and a judgement cannot reach the trust assets. Some exceptions were developed to avoid hardship, \'Ihich allowed the trust assets to be reached \'/hen the trustee had a right to

reimbursement f~om the trust assets. The traditional rule has been eroded by 1l5 statute in ma,ny jurisdiction.ll4 For example the Uniform Trust Act allows suit against the trustee in his fiduciary capacity on contracts \'Ihich he makes

(15) , as trustee, provided the making of the contract was withinftis power. Also, the plaintiff must give the r equired notice to· the beneficiaries of the trust so that they may defend the action if they choose.1l6

VI. Conclusi on The powers listed for personal representatives and trustees are only. some of the powers Which may be given or implied. They are representive samples, illustrating the interaction of 'express grants, implication of powers, and statutory grants.

(16) FO<1rNOTES 1.· Atkinson Qu Wi lls, Sec. (2nd ed. 1953). 2. Texas Probat e Code Sec. 32. (Hereafter cited as TPC.) 3. Uniform Probate Code, Sec. 1-103. (Hereafter cited as UPC.) 4. TPC, Sec. 145 • . 5. TPC, Sec. 146. Sec. 154. ~ Sec. 133 • . 8. UPC, Sec. 3-504. 9. UPC,Sec. 3-616. 10. UPC, Sec. 3-617. 11. UPC, Sec. 3-711. 12. UPC, Sec. 3-716. 13. 50 American Law Reports , Annotated 214. (Hereafter cited as ALR.) 14. Terrell V. McCown, 91 Tex. 231, 43 SWs2, (1897). 15. Upc, Sec. 3-715 (21). 16. See Comment to UpC Sec. 3-719. 17. ITQ sec.240. 18. YRQ Sec. 3-717. 19. ITQ Sec. 37.

20. See Comment to ~ Sec. 3-709. 21. YRQ Sec. 3-709. 22. TPC Sec. 232 23. ITQ Sec. 235. 24. UPC Sec. 3-710. 25. Atkinson on Wills, Sec. 124 26. Scoles and Halbach, Decedents! Estates and Trusts 540 (1965)

27. ~ Sec. 3-715 (5). 28. TPC Secs. 194 and 195. 29. YfQ Sec. 3-713 (17). 30. TPC Sec. 234. 31. Scott v. Taylor (GA) 294 SW 227. (1927). 32. Felton V. Felton, 213 N.C. 194,195 S.E. 533 (1938). 33. TPC Sec. 331 • . 34. TPC Sec. 332.

35. ~ Sec. 333. 36. UPC Sec.d 3-715 (6). 37. YfQ Sec. 3-714. 38. 63 ALR 1003. 39. McCarty v. McCartY,356 Ill. 559, 191 N E .68, 94 ALR 1137 (1934) ~ 40. Lovejoy v. Cockrell, 63 SW2d 1009.

·41. Masterson's Heirs v~ Stevens, (GA) 37 SW 364 (1896).

42. Roberts v. Connellee, 71 Tex. 11, 8 SW 626 (lSSS)~

43. ~ Secs. 331, 332, and 341. 44. UPC Sec. 3-715. 45. Restatement £f Contracts Sec. 454.

46. Atkinson QD. Wills, Sec. 120. 47. YfQ Sec. 3-715. 48. TPC Secs. 359-363. 49. UPC Sec. 3-715. 50. UPC Sec. 3-712. 51 • .!IB1. Sec. 3-715.

52. ~ Sec. 329.

53. Atkinson QD. Wills, ·Sec. 121. 54. Gaess v. Gaess, 132 Conn 96, 42 A. 2d 796 (1946).

55. ~ Sec. 238. 56. YfQ Sec. 3-715 (24).

57. ~ S~c. 367 (b). 58. TPC Sec. 367 (1). 59. TPC Sec. 367 (2). 60. !EQ Sec. 367 ()(a &b). 61. TPC Sec. 367 (4).

62. IEQ Sec. 369 (a). 63. Marshall v. Hobert Estate (CA) 315 SW2d 604 (1958). 64. !EQ Sec. 369. 65. !EQ Sec. 369 ,(1),(2) & (3).

66. ~ Sec. 3-115. 67. UPC Sec. 3-504.

68. ~ Sec. 3-616.

69. ~ , Sec. 3-617.

70/ ~ Sec. 3-716. 71. Atkinson, Sec. 118.

72. Neyland v. Brammer, 73 SWw 884 (1934). 73.· Schmitt v. Jacques, 26 Tex Civ App 125, 62 SW 956 (1901). . ' 74. Harvill v. Newton, 202 Ill. App. 15 (1916). 75. UPC Sec. 3-808 (b). 76. Atkinson, Sec. 119. .. 77. Lovenskiold v. Nueces Hotel Co, 208 SW 759 (1919). 78. Call v. Garland, 124 Me 27, 125 A 225 (1924). But Bee Grafton National Bank v. Wing, 172 Mass 513, 52 N.E. 1067 (1887).

79. 'Call v. Garland, Supra, n~te 78 •• 80. Atkinson. Sec. 120. 81. upe, Sec. 3-808 (a). , 82. Ul'Iifonn Trusts A£i, Sec. 17, (hereafter cited as UTA)'. 83. Texas Trust Act, Sec. 25, (hereafter cited as TTA.)

84. £ Scott 2il Trusts Sec. 186 (3rd ed. 1967). 85. m Sec. 2. 86. Loring, ! Trusteels Handbook Sec. 34, p. 107 (1962). 137. American Law Institute, Restatement £! Trusts , Sec. 171. 1313. TTA Sec. 25 g. 139. Ewing v. Foley Inc. 151 Tex. 222, 200 SW 499. 90. TTA Sec. 113.

91- YI! Sec. ll. 92. lIT! Sec. 10. 93. TTA Sec. 17.

94. Am. Law lnst, , Restatement £! Trusts, Sec. ~96. 95. 2 Scott £rr Trusts. Sec. 190.

96. ~ Sec. 25b. 97. 23 ALR 2d 1000 (1952). 9$. Creed v. McClur, 275 Mass. 353, 175 N E 761 (1931). 99. Ogden v. Allen 225 Mass 595, 114 N. E. 1362 (1917).

100. 2 Scott £rr Trusts Sec. 1139 and Sec. 1139.2. 101. TTA Sec. 25. 102. Jeans v. Burke, (CA) 226 SW2d 9013, (1950) • • 103. Avis v. First National Bank, 141 Tex. 489, 162 S. W. 2d 1072 (1942). ' 104. For a more detailed discussion of the trustee1s power to retain or execute an iol or gas lease see Williams, The Effect of Various Conditions £! Ownership £rr Qil and ~ Transactions. 5 Utah Law Review 1, (1956), and o Hoffman, 1!:1!!. Qil and ~ Lease ~ ~ Trust Asset, 7 U.C.L.A. Law Review 358 (1959-60). < .

105. Avis v. First National Bank, 141 Tex. ,4139, 162 SW2 1072 (19la). 106. -TTA Sec. 25 . 107. m Sec. 40.

108.Uniform Principal ~ Income All Sec. 9 (a) (1). 109. TTA Sec. 26. 110. m. Sec. 27.

111. Loring, ~ Trustee1s Handbook, Sec. 53.

112. UTA Sec. 14 and ~ Sec. 21-

113. UTA Sec. 13 and ~ Sec. 20.