320 HARVARD LAW REVIEW tor or next of kin to retain what he had received, unless he had changed his position before full knowledge of the breach of trust.^^ Second, imagine that the administrator before appointment sells assets to (a) a fellow wrongdoer, or (b) acting as administrator to an innocent purchaser. The authorities are divided on the efficacy of relation back of a later acquired authority as a protection to the buyer. Some cases state the rule to be that, if the act of the administrator would have been rightful when done by a repre- sentative de jure, such protection will be granted.^^ Other authori- ties require for the validity of the transfer that the act be not prejudicial to the estate.^^ The latter ruhngs, while the cases do not carefully distinguish between different situations, tend in the right direction. On principle it would seem that all transactions with one whose only association with the decedent is a possibility of appointment as representative should be discouraged, for ordina- rily such transactions are unnecessary. Therefore, one who buys knowing all the facts should derive no protection from a later ap- pointment except to the extent that what he has paid the adminis- trator is actually applied for the benefit of the estate.^" So far as he pays less than full value, and so far as what he pays never reaches the creditors or next of kin, he should take the risk. This principle, however, must be qualified in the extreme case of perishable property sold for full value by one who in all likelihood will be appointed administrator.^^ The same risks should fall on one buying in ignorance of the absence of letters from a prospective administrator On change of position, see infra, page 344. If the donee was under the statute of distributions entitled to the payment relation back of the later apj)ointment should validate the transfer, for the estate is not prejudiced. Compare note 39. ^* McDearmon v. Maxfield, 38 Ark. 631 (1882); Moore v. Wright, 4 111. App. 443 (1879); McClure v. People, 19 111. App. 105 (1886); Alvord v. Marsh, 12 AUen (Mass.) 603 (1866); Magner v. Ryan, 19 Mo. 196 (1853); Rattoon v. Overacker, 8 Johns. (N. Y.) 126 (181 1); Outlaw v. Farmer, 71 N. C. 31 (1874) (semble); Casho v. Murray, 47 Ore. 57, 81 Pac. 388, 883 (1905) (semble); Vroom v. Van Home, 10 Paige (N. Y.) 549 (1844); Cook V. Cook, 24 S. C. 204 (1885); Whitehall v. Squire, i Salk. 295. See The Globe Ins. Co. v. Gerisch, 163 111. 625 (1896). Some of these opinions state broadly that the later acquired appointment validates all prior acts. The facts of the cases, however, do not justify this generalization. ^^ See Wilson v. Hudson, 4 Harr. (Del.) 168 (1844); Gilkey v. Hamilton, 22 Mich. 283 (1871) (semble); Bradbury v. Reynel, Croke Ehz. 565; Middleton's Case, 5 Co. 286 (semble); Morgan v. Thomas, 8 Exch. 302 (1853) (semble); Doe d. Hornby v. Glenn, i A. & E. 49 (1834). ^ The same principles should apply to one who pays prematurely a debt due the estate.
- i See Tucker v. Whaley,.ii R. I. 543 (1877); Perkins v. Ladd, 114 Mass. 420 (1874).
