Good judgment will generally determine the period of time which may properly be employed in winding up the business, and cases are easily conceivable where the representative would be entirely justified in continuing it for the purposes of carrying out the decedent's existing contracts and disposing of the stock on hand. Thus it may be of advantage to sell out a stock of goods at retail instead of making a forced sale. In one case, where the headmaster of a school died in the middle of the scholastic year, it was held that his executor was not liable for loss occasioned by the continuance of the school for the balance of the year. And in agricultural communities it is doubtless proper to continue the management of the farm or plantation until the current crops are gathered and harvested.

But whatever the circumstances, the representative should be able to show that the continuance of the business was proper and was dictated by good judgment and prudence.

101. Depositing funds in bank.

It is naturally the duty of the representative to deposit all moneys belonging to the estate in some solvent bank, separate and apart from his own. If he does so, acting in good faith and with ordinary care, he will not be held responsible for

loss resulting from the failure of the bank. If, however, he mingles the funds with his private account in the bank, he is responsible for its safety. How long he should allow the moneys to remain on deposit depends upon the circumstances confronting him. In the case of an executor or administrator, where the liquidation of the assets is likely to be completed at an early date, and legacies then paid, he is justified in allowing the deposit to remain without investing it. So, too, where the estate is involved in litigation, and anticipated claims against it are to be provided for, by the retention of moneys on hand. But if there are no such demands as require the funds to be kept on deposit, they should be permanently invested, and if they are left with the bank an unreasonable time, the representative is liable for loss due to the bank's failure. He is also liable for the interest the fund might have earned from an investment if seasonably made.

In the case of a trustee, it is his duty to make a permanent investment of the trust fund without any substantial delay, and for a breach of such duty he is chargeable with interest on the fund. Whether the delay is, or is not, a reasonable one, is for the court to determine, but in any case the trustee must be held to the same degree of care which an ordinarily prudent man would exercise

with respect to his own property under similar circumstances.

Thus, where a trustee permitted a large sum to remain uninvested for more than a year, he was charged interest at the rate of one and a half per cent. In another case the trustee kept the assets for a year in a bank, of which he was an official, and was charged with interest at the rate which the bank allowed on time deposits. On the other hand, if it appears that the trustee was unable, in the interval, to find such an investment as the law would approve, he is justified in keeping the funds in bank.

102. Liability of representative for loss of assets.

Where an executor or administrator acting in good faith, but through mistaken judgment, suffers a loss to the estate, he is not liable. If he were to be held responsible in such a case, he would be, in effect, an insurer of the safety of the property.

Nevertheless, his liability for losses is largely a question of reasonable care, and where, for example, a theft might have been avoided by the exercise of greater prudence, he will be held responsible to the estate for the loss.

So, too, where a debt due the decedent from a solvent debtor has been lost through the care

lessness of the representative, or his attorney, the former will be charged with it as though collected; but not so where his conduct has been dictated by a reasonable judgment. Thus, his neglect to take measures for the collection of assets will be excused where there were reasonable grounds for believing they would have been fruitless. Nor is he chargeable with the amount of a note, of the existence of which he was ignorant. But he is liable for allowing the statute of limitations to bar a claim, and the fact that the debtor resided in another state is no excuse.

In no case can the conduct of the executor be characterized as imprudent merely because in the light of subsequent developments it might have been more advantageous to have acted otherwise. The test is whether their conduct at the time was such as would be adopted by men of ordinary prudence and intelligence in the conduct of their own business.

103. Liability for acts of co-representatives or of agents.

As a rule representatives and trustees are only liable for their own wrongful acts. But included among such acts is the negligent permitting a co-representative to waste or otherwise misapply the funds of the estate, when by the exercise of a

reasonable degree of care it might have been prevented. They may not delegate their powers to each other, much less to a third person. It is their duty to maintain constant vigilance to guard against all unlawful or negligent acts, and such duty is not discharged by simply seeing to it that their co-representative has lawfully obtained possession of the property. Nevertheless, if such possession be lawful and there is nothing which ought to have excited their suspicion, they should not be charged with the consequences of their co-representative's act. It must appear that the circumstances were such as to have caused apprehension that loss would result. Thus, where one of the executors becomes the active executor with the assent of the others, the mere circumstance of permitting the individual custody of the fund by the former does not render the latter liable for his act in collecting and misappropriating a portion of the estate without their knowledge. But where all the representatives or trustees have once taken joint possession or control of the property, they take the risk of entrusting any portion of it to the sole custody of one of their number. If they do so and a misappropriation takes place, they become personally liable to make good the loss, because by their own act they have contributed thereto.