He may declare, whenever 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 summon sup posed debtors or holders of his intestate's property to account, and has the right to an investigation in equity. He may bind the estate by arbitration ; Kendall v. Bates, 35 Me. 357; Appeal of Peters, 38 Pa. 239. He may assign notes, etc. See Ladd v. Wiggin, 35 N. H. 421, 69 Am. Dec. 551; Griswold v. Clark, 28 Vt. 661; Miller v. Henderson, 10 N. J. Eq. 320 ; Patterson v. Edwards, 29 Miss. 70; Thomas v. Reister, Ind. 369; Walker v. Craig, 18 III. 116 ; Shoenberger's Ex'rs v. Say.. Inst., 28 Pa. 459 ; Morris' Ex'r v. Duke's Adm'r, 2 Patt. & H. (Va.) 462. Nearly all debts and actions survive to the administrator. But he has no power over the firm's assets, as to which his intestate was a partner, until the debts are paid; Thomson v. Thomson, 1 Bradf. (N. Y.) 24; he should merely refer in his inventory to the intestate's interest in the partnership without attempting to give the items of property, as he can have no control over it until the affairs of the partnership are set tled; Loomis v. Armstrong, 63 Mich. 355, 29 N. W. 867.
At common law the executor or adminis trator has no power over real estate ; Ryder v. Lyon, 85 Conn. 245, 82 Atl. 573; Wilson v. Hamilton, 9 S. & R. (Pa.) 431; Livingston v. Bird, 2 Root (Conn.) 438 ; Egerton's Adm'r v. Conklin, 25 Wend. (N. Y.) 224; Sorrell v. Ham, 9 Ga. 55; Smith v. Smith's Adm'r, 27 N. J. Eq. 445; Hankins v. Kimball, 57 Ind. 42 ; nor is the probate even admissi ble as evidence that the instrument is a will, or is an execution of a power to charge land; Wms. Ex. 562. By statute, in some states, the probate is made prima facie or conclu sive evidence as to realty ; Brown v. Wood, 17 Mass. 68; Fortune v. Buck, 23 Conn. 1; Darby v. Mayer, 10 Wheat. (U. S.) 470, 6 L. Ed. 367; Jones v. McKee, 3 Pa. 498, 45 Am. Dec. 661; Singleton v. Singleton, 8 B. Monr. (Ky.) 340; Lewis' Heirs v. His Execu tor, 5 La. 388. In some states the probate is made after the lapse of a certain time conclusive as to realty ; Tarver v. Tarver, 9 Pet. (U. S.) 180, 9 L. Ed. 91 ; Appeal of Hegarty, 75 Pa. 512; Bailey v. Bailey, 8 Ohio, 246; Hardy v. Hardy's Heirs, 26 Ala. 524 ; Parker's Ex'rs v. Brown's Ex'rs, 6 Gratt. (Va.) 564; Kenyon v. Stewart, 44 Pa. 189. Land in England under the Land Title and Transfer Act of 1897 goes to the execu tor or administrator.
The administrator has no interest in the decedent's real estate sinless the personal property is insufficient to pay debts and ex penses ; Pratt v. Millard, 154 Mich. 112, 117 N. W. 552 ; and an executor has, ordinarily, no power to sell land unless it is expressly given or necessarily implied in the will ; Han son v. Hanson, 149 Ia. 82, 127 N. W. 1032 ; but one to whom all the testator's residuary estate is devised, "in trust to receive, hold, invest and reinvest," has, by implication, power to sell real estate ; Powell v. Wood,
149 N. C. 235, 62 S. E. 1071.
The will may direct the executor to sell lands to pay debts, but the money resulting is usually held to be equitable assets only ; 9 B. & C. 489 ; Haskell v. House, 3 Brev. (S. C.) 242; Speed's Ex'r v. Nelson's Ex'r, 8 B. Monr. (Ky.) 499; Smith v. Knoebel, 82 Ill. 392; Lindley v. O'Reilly, 50 N. J. L. 636, 15 Atl. 379, 1 L. R. A. 79, 7 Am. St. Rep. 802 ; but the title and right of possession to the land remain in the heirs until the sale, and they are the proper parties to maintain ejectment; Cohea v. Jemison, 68 Miss. 510, 10 South. 46; but see Smothers v. Moody, 112 N. C. 791, 17 S. E. 532; and to collect the rents; Appeal of Pennsylvania Co. for In-1 surance on Lives & Granting Annuities, 168 Pa. 431, 32 Atl. 25, 47 Am. St. Rep. 893. In equity, the testator's intention will be re garded as to whether the surplus fund, after a sale of the real estate and payment of debts, shall go to the heir ; 1 Wms. Ex. 555, Am. note.
Chattels real pass to the executor or ad ministrator, and such is the interest of the tenant of a farm from year to year ; In re Ring's Estate, 132 Ia. 216, 109 N. W. 710. But the wife's chattels real, unless taken in to possession by her husband during his life time, do not pass to his executor ; 1 Wms. Ex. 579, n ; In re Hind's Estate, 5 Whart. (Pa.) 138, 34 Am. Dec. 542 ; Pitts v. Curtis, 4 Ala. 350 ; Wade v. Grimes, 7 How. (Miss.) 425. The husband's act of possession must effect a complete alteration 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 ; Har ris v. Meyer, 3 Redf. (N. Y.) 450; Kahl v. Schober, 35 N. J. Eq. 461; Highnote v. White, 67 Ind. 596 ; Beecher v. Buckingham, 18 Conn. 110, 44 Am. Dec. 580. Such are em blements ; Brooke, Abr. Emblements; Bevans v. Briscoe, 4 H. & J. (Md.) 139 ; Kesler v. Cornelison, 98 N. C. 383, 3 S. E. 839 ; but see Wright v. Watson, 96 Ala. 536, 11 South. 634. Heirlooms and fixtures go to the heir ; and as to what are fixtures, see FIXTURES, and 1 Wms. Ex. 615 ; 2 Sm. L. Cas., 9th Am. ed. 1450 ; Crosw. Ex. & Ad. 352. The widow's separate property and paraphernalia go to her. For elaborate collections of cases on the effect of nuptial contracts about property upon the executor's right, see 1 Wms. Ex. *660, Am. note 2; 2 id. 636, note 1; 1 Sm. Lead. Cas. 65. Donations mortis causa go to the donee at once, and not to the executor ; Murdock v. McDowell, 1 Nott & McC. (S. C.) 237, 9 Am. Dec. 684; Michener v. Dale, 23 Pa. 59 ; Rockwood v. Wiggin, 16 Gray (Mass.) 403 ; Hatch v. Atkinson, 56 Me. 327, 96 Am. Dec. 464.