1 Williams, Exec. 555, Am. note. An exe cutor's power is that of a mere trustee, who must apply the goods for such purposes as are sanctioned by law. 4 Term, 645 ; 9 Coke, 88 ; Coke, 2d Inst. 236.
S. Chattels real go to the executor; but he has no interest in freehold terms or leases, unless by local statute, as in South Carolina. But the wife's chattels real, unless taken into possession by her husband during his life time, do not pass to his executors. 1 Williams, Exec. 579, note; 5 Whart. Penn. 138 ; 4 Ala. N. s. 350 ; 7 How. Miss. 425. The husband's act of possession must effect a complete al teration in the nature of the joint interest of husband and wife in her chattels real, or they will survive to her.
Chattels personal go to the executor. Such are emblements. Brooke, Abr. Emblements ; 4 Harr. & J. Md. 139. Heir-looms and fix tures go to the heir ; and as to what are fix tures, see FIXTURES, and 1 Williams, Exec. 615, Am. note ; 2 Smith, Lead. Cas. 114, Am. note. The widow's separate property and paraphernalia go to her. For elaborate col lections of cases on the effect of nuptial con tracts about property upon the executor's right, see 1 Williams. Exec. 634, Am. note 2.
2 id. 636, note 1 ; 1 Smith, Lead. Cas. 40. Donations mortis causes go to the donee at ante, and not to the executor. 1 Nott & M'C. So. C. 237.
9. Suits. lu general, a right of action on a tort or malfeasance dies with the person. But personal actions founded upon any obligation, contract, debt, covenant, or other duty to be performed, survive, and the executor may maintain them. Cowp. 375 ; 1 Wms. Sound. 216, n. By statutes in England and the United States this common-law right is much extended. An executor may now have trespass, trover, etc. for injuries done to the intestate during his lifetime. Except for slander, for libels, and for injuries inflicted on the person, executors may bring personal actions, and are liable in the same manner as the deceased would have been. 2 Brod. & B. 102 ; '2 Maule & S. 413 ; 2 Johns. Cas. N. Y. 17 ; 1 Md. 102 ; 15 Ala. N. s. 253 ; 5 Blackf. Ind. 232 ; 6 T. B. M mr. Ky. 40 ; 3 Ohio, 211. Should his death have been caused by the negligence of any one, they may bring an action for the benefit of the family. Exe cutor, may also sue for stocks and annuities, as being personal property. S they may sue for an insurance policy. And for all these purposes they may take legal proceedings by action, suit, or summons.
10. Wife's choses. In general, choses in action given to the wife either before or after marriage survive to her,provided her husband have not reduced them to possession before his death. 2 Barnew. & Ald. 452. A pro
mNsory note given to the wife during cover ture comes under this rule in England, 12 Mees. & W. Exch. 355 ; 7 Q. B. 864; but not so in this country generally. 4 Dan. Ky. 333 ; 15 Conn. 587 ; 17 Me. 301 ; 17 Pick. Mass. 391 ; 20 id. 556. Mere intention to re duce choses into possession is not a reduction, nor is a mere appropriation of the fund. 5 Ves. Ch. 515 ; 11 Serg. & R. Penn. 377 ; 5 Whart. Penn. 138; 2 Hill, Ch. So. C. 644; 4 Ala. N. s. 350 ; 14 Ohio, 100.
Other suits. For actions accruing after the testator's death, the executor may sue either in his own name or as executor. This is true of actions for tort, as trespass or trover, actions on contract and on negotiable paper.
3 Nev. & M. 391; 4 Hill, N. Y. 57 ; 19 Pick. Mass. 432; 4 Jones, No. C. 159. So he may bring replevin in his own name, 6 Fla. 314; and so, in short, wherever the money, when recovered, will be assets, the executor may sue as executor. 20 Wend. N. Y. 668 ; 6 Blackf. Did. 120 ; 1 Pet. 686.
11. Other powers. An executor may sell terms for years, and may even make a good title against a specific legatee, unless the sale be fraudulent. So he may underlet a term. He may indorse a promissory note or a bill payable to the testator or his order. 10 Miss. 687.
Co-executors. Co-executors are regarded in law as one individual; and hence, in general, the acts of one are the acts of all. Comyns, Dig. Administration (B 12) ; 9 Cow. N. Y. 34; 4 Hill, N. Y. 492. Hence the assent of one executor to a legacy is sufficient, and the sale or gift of one is the sale or gift of all. So a payment by or to one is a payment by or to all. 8 Blackf. Ind. 10 Ired. No. C.263; 2 Barb. Ch. N. Y. 151. But each is liable only for the assets which have come into his own hands. 11 Johns. N. Y. 21. So he alone who is guilty of tort or negligence is answer able for it, unless his co-executor has con nived at the act or helped him commit it. A power to sell land, conferred by will upon several executors, must be executed by all who proved the title. 2 Dev. & B. No. C. 262. But if only one executor consents to act, his sale under a power in the will would be good, and such refusal of the others may be in pais. Croke Eliz. 80; 3 Dan. Ky. 195. If the will gives no direction to the executors to sell, but leaves the sale to the discretion of the executors, all must join. But see less strict rules in 8 Penn. St. 417 ; 2 Sandf. N. Y. 512 ; 1 N. Y. 341. On the death of one or more of several joint executors, their rights and powers survive to the survivor. Bacon, Abr. Executor (D) ; Sheppard, Toucbst. 484.