Co-administrators, in general, must be joined in suing and in being sued ; but, like execu tors, the acts of each, in the delivery, gift, sale, payment, possession, or release of the intestate's goods, are the acts of all, for they have joint power. Bacon, Abr. Ex. C 4; 11 Viner, Abr. 358 ; Comyns, Dig. Administration, (B 12) ; 1 Dane, Abr. 383 ; 2 Litt. Ky. 315. If one is removed by death, or otherwise, the whole authority is vested in the survivors. 6 Yerg. Tenn. 167 ; 5 Gray, Mass. 341 ; 29 Penn. St. 265. Each is liable only for the assets which have come to his own hands, and is not liable for the torts of others except when guilty of negligence or connivance. 1 Strange, 20 ; 2 Yes. Ch. 267 ; 2 Moll. c. 156 ; 8 Watts & S. Penn. 143 ; 8 Ga. 388; 5 Conn. 19 ; 24 Penn. St. 413 ; 4 Wash. C. C. 186 ; 3 Sandf. Ch. N. Y. 99 ; 3 Rich, Eq. So. C. 132. As to the several powers of each, see 10 Ired. No. C. 263 ; 9 Paige, Ch. N. Y. 52; 35 Me. 279 ; 4 Ired. No.
C. 271; 28 Penn. St. 471 ; 20 Barb. N. Y. 91; 16 Ill. 329.
5. The duty of an administrator is in ral to do the things set forth in his bond ; and for this he is generally obliged to give secu rity. Williams, Ex. 439, Am. notes ; 4 Yerg. Tenn. 20; 5 Gray, Mass. 67. He must pub lish a notice of his appointment, as the law directs. Usually he must render an inven-. tory. In practice, book accounts and unli quidated damages are not inventoried, but debts evidenced by mercantile paper, bonds, notes, &c., are. 1 Stockt. N. J. 572; 23 Penn. St. 223.
He must collect the outstanding claims and convert property into money. 2 Kent, Comm. 415 ; 18 Miss. 404 ; Taml. 279 ; 1 Mylne & C. Ch. 8 ; 6 Gill & J. Md. 171 ; 4 Edw. Ch. N. Y. 718 ; 4 Fla. 112 ; 20 Barb. N. Y. 100 ; 25 Miss. 422. As to what constitutes assets, see ASSETS.
For this purpose he acquires a property in the assets of the intestate. His right is not a personal one, but an incident to his office. 9 Mass. 74, 352 ; 16 N. Y. 278. He owns all his intestate's personal property from the day of death, and for any cause of action accru ing after that day may sue in his own name. Williams, Ex. 747 ; 4 Hill, N. Y. 57 ; 17 Vt. 176 ; 4 Mich. 170, 132 ; 26 Mo. 76. This happens by relation to the day of death. 12 Mete. Mass. 425 ; 7 Jur. 492 ; 18 Ark. 424 ; 34 N. II. 407. An administrator is a trustee, who holds the legal property but not the equitable. If he is a debtor to the estate, and denies the debt, he may be removed; but if he inventories it, it is cancelled by the giving of his bond. 11 Mass. 268.
6. He may declare, as administrator, wher ever the money when received will be assets; and he may sue on a judgment once obtained, as if the debt were his own. He may sum mon supposed debtors or holders of his inter tate's property to account, and has the right to an investigation in equity. In equity he may recover fraudulently-conveyed real es tate, for the benefit of creditors. He may
also bind the estate by arbitration. 4 Harr. N. J. 457 ; 35 Me. 357. He may assign notes, &c. See 35 N. H. 421 ; 28 Vt. 661 ; 2 Stockt. N. J. 320 ; 29 Miss. 70 ; 3 Ind. 369 ; 18 Ill. 116 ; 28 Penn. St. 459 ; 2 Patt. & H. Va. 462; 1 Sandf. N.Y Y. 132. Nearly all debts and ac tions survive to the administrator. But he has no power over the firm's assets, when his intestate is a partner, until the debts are paid. 1 Brad'. Surr. N. Y. 24, 165. He must pay the intestate's debts in the order pre scribed by law. There is no universal order of payment adopted in the United States; but debts of the last sickness and the funeral are preferred debts everywhere. Bacon, Abr. Ex. L 2; Williams, Ex. 679, 1213 ; 2 Kent, Comm. 416 ; 4 Leigh, Va. 35 ; 10 B. Monr. Ky. 147 ; 7 Ired. Eq. No. C. 62 ; 23 Miss. 228.
Next to these, as a general rule, debts due the state or the United States are privileged. The act of burial and its accompaniments may be done by third parties who have a preferred claim therefor, if reasonable. 3 Nev. & M 512 ; 8 Ad. & E. 348. But the amount is often disputed. 1 Barnew. & Ad. 260 ; R. M. Charlt. Ga. 56. If the administrator pays debts of a lower degree first, he will be liable out of his own estate in case of a deficiency of assets. 2 Kent, Comm. 419.
7 . The statute prescribes a fixed time with in which the administrator must ascertain the solvency of the estate. During this time he cannot be sued, unless he waives the right.
2 Nott & M'C. So. C. 259 ; 2 Du. N. Y. 160; 6 McLean, C. C. 443. And if the commissioner deems the estate insolvent, parties dissatisfied may resort to a court and jury. If the admi nistrator makes payments erroneously, sup posing the estate to be solvent, he may re cover them, it being a mistake of facts. 3 Pick. Mass. 261 ; 2 Gratt. Va. 319. In some states, debts cannot be brought in before due, if the estate is solvent.
The administrator may plead the statute of limitations, but he is not bound to, if sada• fled that the debt is just. 1 Wheat. Penn. 66 ; 1 Atk. Ch. 526 ; 9 Dowl. & R. 40 ; 11 N. H. 208; 3 Mete. Mass. 369 ; 9 Mo. 262; 28 Ala. N. s. 484 ; 10 Md. 24223 Penn. St. 95 ; 8 How. 402 ; 10 Humpl:r. Tenn. 301 ; 4 Fla. 481. He is, in some states, chargeable with interest, first, when he receives it upon assets put out at interest; second, when he uses them himself ; third, when he has large debts paid him which he ought to have put out at inte rest. 5 N. H. 497 ; 1 Pick. Mass. 530 ; Mass. 232. In some cases of need, as to re lieve an estate from sale by the mortgagee, he may lend the estate-money and charge interest thereon. 10 Pick. Mass. 77. The widow's support is usually decreed by the judge. But the administrator is not liable for the education of infant children, or fex mourning-apparel for relatives and friends of the deceased. 11 Paige, Ch. N. Y. 265 ; 11 Serg. & R. Penn. 16.