Acts before probate. The will itself is the sole source of an executor's title. Probate is the evidence of that title. See Wolfe v. Un derwood, 97 Ala. 375, 12 South. 234 ; Clapp v. Stoughton, 10 Pick. (Mass.) 463 ; Shirley v. Healds, 34 N. H. 407. Before probate, an executor may do nearly all the acts which he can do after. He can receive payments, dis charge debts, collect and recover assets, sell bank-stock, give or receive notice of dishonor, initiate or maintain proceedings in bank ruptcy, sell or give away goods and chattels, and pay legacies. And when he has acted before probate he may be sued before pro bate ; 6 Term 295 ; Rand v. Hubbard, 4 Mete. (Mass.) 252. He may commence, but he can not maintain, suits before probate, except such suits as are founded on his actual pos session ; 3 C. & P. 123 ;, Hutchins v. Adams, 3 Greenl. (Me.) 174 ; Strong v. Perkins, 3 N. H. 517 ; 2 Atk. 285. So in some states he cannot sell land without letters testamenta ry ; Kerr v. Melon, 9 Wheat. (U. S.) 565, 6 L. Ed. 161; or transfer a mortgage ; Cutter v. Davenport, .1 Pick. (Mass.) 81, 11 A111. Dec. 149 ; or remain in his own state and sue by attorney elsewhere ; Hutchins v. Bank, 12 Mete. (Mass.) 423 ; or indorse a note so as to be sued, in some states ; Stearns v: Burn ham, 5 Greenl. (Me.) 261, 17 Am. Dec. 228 ; Thompson v. Wilson, 2 'N. H. 291. And see Harper v. Butler, 2 Pet. (U. S.) 239, :7 L. Ed. 410 ; Byles, Bills 40 ; Story, Pr. Notes 304 ; Story, Bills 250 ; Horn v. Johnson, 87 Ga. 448, 13'S. E. 633.
Co-executors. Co-executors are regarded in law as one individual ; and hence, in gen eral, the acts of one are the acts of all ; Com, Dig. Administration (B, 12) ; Gates v. Whet stone, 8 S. C. 244, 28 Am. Rep. 284 ; Arm strong v. O'Brien, 83 Tex. 635, 19 S. W. 268 ; Viele V. Keeler, 129 N. Y. 190, 29 N. E. 78. 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 ; Herald v. Har per,. 8 Blackf. (Ind.) 170 ; Hoke's Ex'rs v. Fleming, 32 N. C. 263 ; Adair v. Brimmer, 74 N. Y. 539 ; a release by one binds all ; Dev ling v. Little, 26 Pa. 502. But each is liable only for the assets which have come into his own hands; Douglass v. Satterlee, 11 Johns. (N. Y.) 2L So he alone who is guilty of tort or negligence is answerable for it, unless his co-executor has connived at the act or helped him commit it ; Estate of Sanderson, 74 Cal. 199, 15 Pac. 753. An executor is not liable for a devastavit of his co-executor ; Ander son v. Earle, 9 S. C. 460. A power to sell land, conferred by will upon several execu tors, must be executed by all who proved the will; Wasson v. King, 19 N, 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; Cro. Eliz. 80 ; Ross v. Clore, 3 Dana (Ky.) 195 ; Herrick v. Carpenter, 92 Mich. 440, 52 N. W. 747. 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 Miller v. Meetch, 8 Pa. 417 ; Meakings v. Cromwell, 2 Sandf. (N. Y.) 512 ; Taylor v. Morris, 1 N. Y. 341. Where all the executors must unite to make a valid conveyance, no valid contract to con vey can be made by a part of them ; Crowley v. Hicks, 72 Wis. 539, 40 N. W. 151. One executor cannot bind his co-executors by a confession of judgment without their con sent ; Karl v. Black's Ex'rs, 2 Pittsb. (Pa.) 19. On the death of one or more of several joint executors, their rights and powers sur vive to the survivor ; Bac. Abr. Exemttor (D); Shepp. Touchst. 484.