1 Parry v. Harbert, Dyer, 45 b; Windsor v. Burry, Dyer, 45, note.

2 1 Williams on Executors, pt. 2, B. 3, ch. 1, § 1, p. 556; Wheatley v. Lane, 1 Saund. 216 a, note (1) ; Le Mason v. Dixon, W. Jones, 173, 174; Devon v. Pawlett, 11 Vin. Abr. 133, pi. 27; Crawford v. Whittal, Doug. 4, n.

3 Com. Dig. Administration (B. 13) ; Covenant (B. 1) ; Bac. Abr. Executors (N.) ; Chamberlain v. Williamson, 2 M. & S. 408; 1 Williams on Executors, pt. 2, B. 3, ch. 1, § 1, 560, 567. * Ibid.

5 Chamberlain v. Williamson, 2 M. & S. 408; 1 Williams on Executors, pt. 2, B. 3, ch. 1, § 1, p. 568. See Cutting v. Tower, 14 Gray, 183.

6 Ibid.; Knights v. Quarles, 2 Br. & B. 102; Russet's Case, 5 Co. 27 a; Rutland v. Rutland, Cro. Eliz. 377; Williams v. Cary, 4 Mod. 403; Chamberlain v. Williamson, 2 M. & S. 408.

7 Needham v. Croke, 1 Freem. 538; Thompson v. Stent, 1 Taunt. 322; Foxwist v. Tremaine, 2 Saund. 208; Petrie v. Hannay, 3 T. R. 659; Smith v. Barrow, 2 T. R. 477; Ord v. Fenwick, 3 East, 104; Webster v. Spencer, 3 B. & Al. 364; Partridge v. Court, 5 Price, 412; 8. c. 7 Price, 591.

§ 336. If there be several executors, they have a joint and entire interest in the personal estate of the deceased, with a right of survivorship.3 They are all regarded as one person, each having an interest in the whole estate, which is incapable of separation from the interest of the others, or of assignment independent of that of the others.4 If, therefore, one executor release his part of a debt, he releases the whole debt.5 Each executor is the agent of all the rest, and is fully empowered to dispose of the whole estate by his single act.6 If, therefore, any contract be made with one executor, it is made with all, and may be sued by them jointly.7 But where there are several executors, they must all join in bringing actions.8 Yet, if they do not sue jointly, the defendant can only take advantage thereof by pleading in abatement that there is another executor or administrator, but it is not sufficient for him to plead the general issue.9 But an executor cannot, by taking possession of a chattel, real or personal, belonging to the estate, create a new liability, and confer a charge on the other personally in his own individual character, which, without such act, would not have existed.1 Thus, if an executor take possession of a tenure belonging to the testator, and personally enjoy it, his coexecutor is not thereby charged as joint occupant.2 It was at one time asserted, that administrators had not the same powers with executors to bind each other by the separate act of one, but that they must act jointly, as their power was not given by the testator.3 But this doctrine has been since overruled, and it has been held, that administrators stand in this respect on the same footing with executors.4

1 Crawford v. Whittal, Doug. 4, n. 1; Bonafous v. Walker, 2 T. R. 126.

2 Hosier v. Lord Arundell, 3 Bos. & Pul. 7; Partridge v. Court, 5 Price, 419.

8 Anon., Dyer, 23 b; Jacomb v. Harwood, 2 Ves. 267; Ex parte Rigby, 19 Ves. 463; Owen v. Owen, 1 Atk. 495; 3 Bac. Abr. 30, tit. Executors (D.) 1; 2 Williams on Executors, pt. 3, B. 1, ch. 2, p. 683; Flanders v. Clarke, 3 Atk. 509; 8. c. 1 Ves. 9.

4 Ibid.; Godolph. pt. 2, ch. 16, § 1. See Hannum v. Day, 105 Mass. 33 (1870)..

5 Willand v. Fenn, 2 Selw. N. P. 767; Simpson v. Gutteridge, 1 Madd. 616; Anon., Dyer, 23 b; Jacomb v. Harwood, 2 Ves. 267.

6 Ibid.; Powell v. Evans, 5 Ves. 844. See George v. Baker, 3 Allen, 326, n.

7 Nation v. Tozer, 1 C. M. & R. 174.

8 Smith v. Smith, Yelv. 130; Brookes v. Stroud, 1 Salk. 3; Hensloe's Case, 9 Co. 37. See Rubber Co. v. Goodyear, 9 Wall. 788.

9 Cabell v. Vaughan, 1 Saund. 291, note.

§ 337. It follows, from what has been said, that several executors or administrators cannot ordinarily sue a defendant, who has made a joint contract with one of the executors or administrators.5 Indeed, generally speaking, one executor or administrator cannot sue his coexecutor or administrator, nor can the survivors of several executors sue the executor of the deceased executor.6 Yet, if a debtor make his creditor one of his executors, and he neither prove the will nor act as executor, he may be sued by the others.7

§ 338. An executor or administrator is not at common law entitled to any allowance or commission for his labor and services, in executing his trust, either at law or in equity;8 but he is entitled to be reimbursed for all reasonable expen& outlays,1 which do not arise from his default,2 and in most American States he is allowed, by statute, or custom, a certain per cent as commissions, or such other sum as the proper court may determine.

outlays,1 which do not arise from his default,2 and in most American States he is allowed, by statute, or custom, a certain per cent as commissions, or such other sum as the proper court may determine.

Pul. 124, n. (c) ; Fitzgerald v. Boehm, 6 Moore, 332; Godolph. pt. 2, ch.

16, § 2.

6 Ibid.; Went. Off. Executors, 75; 2 Williams on Executors, pt. 3, B. 1, ch.J2, p. 691; Edmonds v. Crenshaw, 14 Peters, 166.

7 Dorchester v. Webb, W. Jones, 345 ; Rawlinson v. Shaw, 3 T. R. 557 ; Gleadow v. Atkin, 2 Cr. & J. 548.

8 Schieffelin v. Stewart, 1 Johns. Ch. 633; Robinson v. Pett, 3 P. Wms. 251; Brocksopp v. Barnes, 5 Madd. 90.

1 2 Williams on Executors, pt. 3, B. 1, ch. 2, p. 685 ; Nation v. Tozer, 1 C. M. & R. 174. 2 Ibid.

3 By Lord Hardwicke, in Hudson v. Hudson, 1 Atk. 460.

4 Willand v. Fenn, cited 2 Ves. 267 ; Selw. N. P. 767, note (8), 6th ed.; Jacomb v. Harwood, 2 Ves. 267.

5 ---------v. Adams, Younge, 117; Moffatt v. Van Millingen, 2 Bos. &bPul. 124, n. (c) ; Fitzgerald v. Boehm, 6 Moore, 332; Godolph. pt. 2, ch. 16, § 2.

6 Ibid.; Went. Off. Executors, 75; 2 Williams on Executors, pt. 3, B. 1, ch.J2, p. 691; Edmonds v. Crenshaw, 14 Peters, 166.

7 Dorchester v. Webb, W. Jones, 345 ; Rawlinson v. Shaw, 3 T. R. 557 ; Gleadow v. Atkin, 2 Cr. & J. 548.

8 Schieffelin v. Stewart, 1 Johns. Ch. 633; Robinson v. Pett, 3 P. Wms. 251; Brocksopp v. Barnes, 5 Madd. 90.