Page:Harvard Law Review Volume 32.djvu/357

321 PROBLEMS IN PROBATE AND ADMINISTRATION 321 who purports to act in a representative capacity. It is a simple matter to-day for such a fiduciary to provide himself with a certi- fied copy of his appointment by the probate court. In fact every businesslike administrator keeps on hand such a copy to facilitate transfers. The absence of authority should put on his guard every reasonable buyer. He who omits to take the simple precaution of demanding evidence of power should bear the burdens resulting from such neglect.^^ Third, it may be supposed that the administrator sells as his own assets of the estate to an innocent buyer, and receives inad- equate compensation. To the extent that the purchaser has profited it does not seem unjust that the administrator, when later appointed, should compel for the benefit of the estate a further pay- ment. But if full value has been paid must the purchaser give back what he has received when the administrator has wasted the proceeds of the sale? It may be urged that the whole sale is a nullity as made by one who has no title. But this theory would abrogate entirely any doctrine of relation back. And such a doc- trine does exist, and is entirely in accord with the spirit of the early administration statutes. Again, it may be said that the nearest analogy to the doctrine of relation back in administration is ratifi- cation of a quasi agent's act by a quasi principal, and that the first step in ratification is that the quasi agent act in the name of the quasi principal. And here ex hypothesi the administrator acted in his own name. But this limitation of ratification confines the logical but extreme doctrine of undisclosed principal within due bounds by preventing contracting parties from becoming liable to unexpected persons except in restricted cases. In administra- tion the so-called ratification is through the appointment by a court of the very person who did the act, — the quasi agent and the quasi principal are the same, and very different considerations govern. It is merely a question whether a due regard for the rights of the estate require us to ignore the unfortunate situation of the purchaser. It seems fairer on the whole to protect the latter. The estate has many benefits from the doctrine of relation back, and should accept this burden, which, it may be noted, is not a real burden if the administrator's bond is adequate.^ ^ See cases cited in notes 38 and 39.
 * See cases cited in notes 38 and 39. The distinctions between the second and