Beall, the father, made a will and died. He gave all his property to his two sons, to be divided equally between them, and appointed them executors. They qualified and took possession of the property, and used it, under a copartnership name, for planting. There was a certain action against their ancestor, to which they were made parties; and awaiting the result of this action, they forebore to make any division of the property, but cultivated it and used it as tenants in common, or copartners, until one of them died, the property still being undivided, and some debts being still unpaid.
Administration was granted upon the estate of the deceased son, and his administrator came forward and attempted to sell the interest of the deceased in some of the lands. His widow made application for a year’s support for herself and children, and threatened to apply for dower in the lands. The surviving executor applied for an injunction against any interference by the administrator.
Where the only devisees and legatees under a will are also executors, they can administer as informally as they please, so that they do not interfere with the rights of creditors, but where they do not in fact administer the estate) ■but keep themselves through a series of years related to it as executors and at the same time relate themselves to it as individuals, what is their legal relation as a whole to the specific property of which the estate consists ? They cannot have the legal title in their character of executors and also in their character as individuals. There is, however, no difficulty in their holding the property as executors to await the result of pending litigation in which the estate is interested, or until the debts are all paid, and in using it to carry on an individual business of their own as co-partners or tenants in common. If they do this, they are virtually renters of the realty and hirers of the personalty in i heir character as individuals, from themselves in their character of executors. Did the estate, as to the corpus, prove insolvent, they would be answerable to creditors for reasonable rent and hire, -no matter what profits or losses attended their copartnership business, and after getting clear of creditors of the testator, they would be entitled as individuals, not as executors, to all the profits of that business. It is fairly inferable from the record both that the estate of Jeremiah Beall has never been administered, and that the two sons conducted a partnership business in using it. They could not have been partners as executors,
With regard to the contract between the widow and the executor, it surely is no basis for an injunction, either against the administrator, who was no party to it, or against the Ávidow as to year’s support and dower.
1. Where the testator devised and bequeathed his whole estate to his íavo sons, to be equally divided between them, appointing them executors, and they both qualified, and without administering the property or dividing it, used the
2. The surviving executor is entitled, as such, to administer the whole estate of the testator, and will be accountable to the administrator of the deceased brother for his share, either in kind, if a division in kind be had, or in money, if a sale for division should take place. Before any specific property can como from the father’s estate to the administrator of the son to be administered, it must be administered by the surviving executor of the father.
3. If the widow and children of the son be entitled to a year’s support, or the widow to dower, there is no cause, legal or equitable, for delaying the enjoyment of these rights, and if they cannot be asserted against the surviving executor, he can defend himself at law upon his title as executor, and has no need for an injunction.
Judgment reversed.