Ninth. He must be at all times ready to account to the proper authorities, and must actually file an account at the end of the year generally prescribed by statute. The burden of proving items of a discharge in an accounting is upon the accountant ; Brewster v. Demarest, 48 N. J. Eq. 559, 23 Atl. 271.
Tenth. He must pay the debts and legacies in the order required 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 every where; Bacon, Abr. Ex. L. 2 ; 2 Kent 416; Lawson's Adm'rs v. Hansborough, 10 B. Monr. (Ky.) 147; Moye v. Albritton, 42 N. C. 62; Burruss v. Fisher, 23 Miss. 228; Johnston v. Morrow, 28 N. J. Eq. 327; Chapman v. Barnes, 29 Ill. App. 184.
Next to these, as a general rule, debts due the state or the United States are privileged. This priority of the United States only ex tends to the net proceeds of the property of the deceased, and therefore the necessary expenses of the administration are first paid. 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; U. S. v. Eg gleston, 4 Sawy. 199, Fed. Cas. No. 15,027. A claim for costs recovered by a creditor in an action to establish his claim is entitled to priority over the debts of the estate; In re Randell's Estate, 8 N. Y. Supp. 652. If the administrator pays debts of a lower de gree first, he will be liable out of his own es tate in case of a deficiency of assets; 2 Kent 419. If he pays decedent's debts from his own funds he is entitled to repayment from the proceeds of lands originally liable for such debt; Doty v. Cox (Ky.) 22 S. W. 321.
A valid claim against an estate cannot be defeated on the ground that the estate had been settled before the claim was filed; Ury v. Bush, 85 Ia. 698, 52 N. W. 666.
Powers. The authority of the executor or administrator dates from the moment of death; Com. Dig. Administration (B, 10) ; 2 W. Bla. 692; 10 Ad. & El. 212. When once probate is granted, his acts are good until formally reversed by the court; 3 Term 125; Appeal of Peebles, 15 S. & R. (Pa.) 39. In some states he has power over both real and personal estate ; Goodwin v. Jones, 3 Mass. 514, 3 Am. Dec. 173; Stearns v. Stearns, 1
Pick. (Mass.) 157. In the majority, he has power over the real estate only when ex pressly empowered by the will, or when the personal estate is insufficient.; see infra.
His power is that of a mere trustee, who must apply the goods for such purposes as are sanctioned by law ; 4 Term 645; 9 Co. 88; Co. 2d Inst. 236 ; Warfield v. Brand's Adm'r, 13 Bush (Ky.) 77; Ferris v. Van Vechten, 9 Hun (N. Y.) 12. The personal representative has the legal title to the choses in action of the deceased, and may transfer, discharge, or compound them as if he were the absolute owner; Curry v. Pee bles, 83 Ala. 225, 3 South. 622 ; Kahl v. Schob er, 35 N. J. Eq. 461; and having at common law absolute power of disposal of the per sonal effects, he may compromise any claim ; Olston v. R. Ca, 52 Or. 343, 96 Pac. 1095, 97 Pac. 538, 20 L. R. A. (N. S.) 915. But where an executor pledged goods belonging' to an estate, not holding himself out to act as executor, and the pledgee having no no tice that he was such, no title passed and the pledgee was required to surrender the goods; [1912] 1 Ch. 451.
In order that he may be enabled to reduce them to Dossession the executor or admin istrator acquires a property in the assets of the intestate. As to what constitutes assets, see ASSETS, and for a definition of "asset," within the administration laws, see Louis ville & N. R. Co. v. Herb, 125 Tenn. 408, 143 S. W. 1138.
His right is not a personal one, but an in cident to his office; Weeks v. Gibbs, 9 Mass. 74; Dawes v. •Boylston, 9 Mass. 352, 6 Am. Dec. 72 ; Hillman v. Stephens, 16 N. Y. 278. He owns all his intestate's personal proper ty from the day of death, and for any cause of action accruing after that day may sue in his own name; Patchen v. Wilson, 4 Hill (N. Y.) 57; Manwell v. Briggs, 17 Vt. 176 ; Cullen v. O'Hara, 4 Mich. 132; Bates v. Sabin, 64 Vt. 511, 24 Atl. 1013. This hap pens by relation, to the day of death ; Hutch ins v. Bank, 12 Mete. (Mass.) 425; 7 Jur. 492 ; Shirley v. Healds, 34 N. H. 407. An administrator is a trustee, who holds the le gal 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; Stevens v. Gaylord, 11 Mass. 268.