it advisable, although the usual procedure is to appoint but one. There of course can not be joint executors or joint administrators unless there is a unity of estate.

The general rule, recognized from the earliest times, is that "if a man appoint several executors, they are esteemed in law but as one person, representing the testator, and therefore the acts done by any one of them, which relate either to the delivery, gift, sale, payment,. possession, or release of the testator's goods, are deemed the acts of all, for they have a joint and entire authority over the whole." This definition has been adopted in many jurisdictions in the United States. In some cases a distinction has been made between the powers of joint executors and of joint administrators, conceding the right in some cases of one of several executors to act for all, but denying this right to one of several administrators.3 This distinction, however, is not generally recognized, the better rule being that joint administrators and joint executors stand upon the same footing, that their rights and liabilities regarding the estate are the same, and that one of several administrators is invested with the same authority with respect to administration of the estate as is one of several executors, there being no special powers conferred upon the executors by the decedent's will. The

1 Bacon's Abr., tit. Exrs. and Admrs., D. 1.

2 Dwight v. Newell, 15 III. 333; Herald v. Harper, 8 Blackf. (Ind.) 170; Shaw v. Berry, 35 Me. 279, 58 Am. Dec. 702; Shreve v. Joyce, 36 N. J. L. 44, 13 Am. Rep. 417; Murray v. Blatchford, 1 Wend. (N. Y.) 583, 19 Am. Dec. 537.

3 Hudson v. Hudson, 1 Atk. 460; Jordan v. Spiers, 113 N. C. 344, 18

S. E. 327, wherein it was held that one of several executors could make a sale or compromise a debt, but that one of several administrators did not possess this power. 4 Jacomb v. Harwood, 2 Ves. Sen. 266; Alerding v. Allison, 170 Ind. 252, 127 Am. St. Rep. 363, 83 N. E. 1006; Hord's Admrs. v. Lee, 4 T. B. Mon. (Ky.) 36; Murray v. Blatchford, 1 Wend. (N. Y.) 583,

rule, however, that several executors or several administrators are considered in law as one does not apply to those cases in which the question involved is the personal responsibility of one representative for his own acts or the acts of the others, but is limited to acts of a ministerial nature and does not apply to those which call for the exercise of judgment and discretion."

§ 1517. Right of One of Several Executors to Act for All.

As to collecting or receiving the assets of the estate, one of several executors or administrators has such power, without the concurrence of the others." And where the representatives have, by reason of their appointment, the power to dispose of assets of the estate, one of several representatives may exercise this power. Where the statute provides for the presentation of claims to the executor or administrator, it is sufficient if a claim be presented to one, and if rejected by one only, the creditor is authorized to sue in order to establish his claim. If the

19 Am. Dec. 537; Dean v. Duffield, 8 Tex. 235, 58 Am. Dec. 108. 5 Fleming v. Walker, 152 Ala. 386, 126 Am. St. Rep. 46, 44 So. 536; Scruggs v. Driver's Exrs., 31 Ala. 274, where one was held to have no authority to subject the estate to a judgment upon his promise to pay for property purchased by him, without the participation of his co-executor.

6 In re George Ringler & Co., 70 Misc. Rep. (N. Y.) 576, 127 N. Y. Supp. 934, wherein it was held that the institution of proceedings to dissolve a corporation in which was invested the bulk of the III Com. on Wills-32

8

estate was not a mere ministerial act, and that one executor had no power to sign the name of his coexecutor to the petition, and that he could not alone institute such a proceeding.

7 Edmonds v. Crenshaw, 14 Pet. (U. S.) 166, 10 L. Ed. 402; Hall v. Carter, 8 Ga. 388; Gates v. Whetstone, 8 S. C. 244, 28 Am. Rep. 284.

8 Geyer v. Snyder, 140 N. Y. 394, 35 N. E. 784; Pearse v. National Lead Co., 162 App. Div. (N. Y.) 766, 147 N. Y. Supp. 989.

9 Willis v. Farley, 24 Cal. 490; Cross v. Long, 66 Kan. 293, 71

representatives are authorized to make a lease of the property of the estate, such a lease may be executed by one only.10 The right to make such a lease, however, is affected by other statutes. If the authority of an agent to make a lease for a period of more than one year must be in writing, one of several representatives can not make a lease for a longer period unless he has written authority from the others.11

Where there are several executors or administrators, a majority may determine in whose custody the books and papers of the estate shall remain. 12 Where executors open a joint account in a bank, all must join in checking out the funds;13 and in such a case mandamus will not lie to compel the bank to pay out funds on a check drawn by two executors when a third executor protests against the payment.14

§ 1518. The Same Subject.

As to contracts regarding the estate which personal representatives, by virtue of their office, are authorized to make, one of several representatives has the authority

Pac. 524; Coburn v. Harris, 53 Md. 367; Dean v. Duffield, 8 Tex. 235, 58 Am. Dec. 108.

10 Turner v. Hardey, 9 Mees. & W. 770; Lewis' Heirs v. Ringo, 3 A. K. Marsh (Ky.) 247; Wheeler v. Wheeler, 9 Cow. (N. Y.) 34.

11 Utah Loan & Trust Co. v. Garbutt, 6 Utah 342, 23 Pac. 758.

12 Bronson v. Bronson, 48 How. Pr (N. Y.) 481.

Where there is a disagreement

between co-executors as to the custody of the books and papers, the statute in New York provides that the matter may be submitted to the surrogate court.-In re Stein's Estate, 33 Misc. Rep. (N. Y.) 542, 68 N. Y. Supp. 933.

13 Allen v. Louisiana Nat. Bank, 50 La. Ann. 366, 23 So. 360; De Haven v. Williams, 80 Pa. St. 480, 21 Am. Rep. 107.

14 Allen v. Louisiana Nat. Bank, supra

to make such a contract and he will not be held personally liable therefor.15 But the general rule is that one of several executors or administrators can not, without the concurrence of the others, create a pecuniary liability against the estate by a contract for the purchase of property.18 Where a debt due from the decedent is barred by the statute of limitations, the acknowledgment of the debt by one of several personal representatives will not remove the bar of the statute.17 One of two personal representatives, however, may submit a matter in dispute to arbitration and the estate will be bound by the award.18

One of several personal representatives may assign a promissory note payable to the testator,19 or endorse such a note,20 without the co-operation of the others. One may likewise release a debt which has been paid to him in good faith by the debtor.21 Likewise one of two or more executors can release a mortgage belonging to the estate

15 Shreve v. Joyce, 36 N. J. L. 44, 13 Am. Rep. 417.

16 Scruggs v. Driver's Exrs., 31 Ala. 274.

17 Pitts v. Wooten's Exrs., 24 Ala. 274; Conway v. Spicer, 5 Harr. (Del.) 425; Head's Exrs. v. Manner's Admrs., 5 J. J. Marsh (Ky.) 255; Shreve v. Joyce, 36 N. J. L. 44, 13 Am. Rep. 417.

See § 1503 as to pleading statute of limitations and of frauds. Where part of a claim was barred by the statute of limitations, one of several executors held to have no authority to confess judgment without the knowledge and consent of his coexecu

tors so as to bind the estate.Hall v. Boyd, 6 Pa. St. 267.

18 Lank v. Kinder, 4 Harr. (Del.) 457; Grace v. Sutton, 5 Watts (Pa.) 540.

See § 1502 as to submitting claims to arbitration.

19 Dwight v. Newell, 15 Ill. 333; Sanders v. Blain, 6 J. J. Marsh (Ky.) 446, 22 Am. Dec. 86; Wheeler v. Wheeler, 9 Cow. (N. Y.) 34; Mackay v. St. Mary's Church, 15 R. I. 121, 2 Am. St. Rep. 881, 23 Atl. 108.

20 Union Bank v. Sullivan, 214 N. Y. 332, 108 N. E. 558, reversing 145 N. Y. Supp. 1148.

21 Fesmire v. Shannon, 143 Pa. St. 201, 22 Atl. 898.

and which has been satisfied;22 but there is a conflict of opinion where the mortgage is made to the executors themselves, the rule just mentioned applying in New York,23 while the contrary is held in Maine.24

§ 1519. Suits Between Coexecutors to Compel an Accounting.

One of several executors can not maintain an action at law against his coexecutors;25 he can not sue the others for money or property in their hands belonging to the estate.26 And this applies generally to all matters connected with the estate.27 His remedy is necessarily an equitable one,28 and he may maintain a suit in equity to compel his coexecutors to account.29 A bill in equity is also an appropriate remedy for settling accounts between executors or administrators of different estates.30

Where one of three executors or administrators is indebted to the estate, the remaining two may make a settlement with the one with respect to the indebtedness; they are competent to make this adjustment with the debtor personally, the same as if they were settling the accounts of the estate with any other person.31

22 Stuyvesant v. Hall, 2 Barb. Ch. (N. Y.) 151; Weir v. Mosher, 19 Wis. 311.

One of several executors can not contract to release a lien upon real estate. Stuart's Exr. v. Abbott, 9 Gratt. (Va.) 252.

But compare Mutual Life Ins. Co. v. Sturges, 33 N. J. Eq. 328. 23 People v. Miner, 37 Barb. (N. Y.) 466.

24 Pearce v. Savage, 51 Me. 410. 25 Martin v. Martin, 13 Mo. 36.

26 Taylor v. Minton, 45 Kan. 17, 25 Pac. 222; Insley v. Shire, 54 Kan. 793, 45 Am. St. Rep. 308, 39 Pac. 713.

27 Cole v. Wooden, 18 N. J. L. 15. 28 Ely v. Ely (N. J. Eq.), 50 Atl. 657.

29 Wood v. Brown, 34 N. Y. 337. 30 Stiver v. Stiver's Heirs, 8 Ohio 217.

31 Herald v. Harper, 8 Blackf. (Ind.) 170; Alerding v. Allison, 170 Ind. 252, 127 Am. St. Rep. 363, 83 N. E. 1006.