ON REHEARING.
Per Curiam.Upon the death of the payee of the note it unay be conceded that the note became the property of the *334administrator, if there was one. But if no administrator is-appointed it will not do to say the note ceased to be property. Property cannot be thus blotted out. There is no statute which requires that letters of administration should be taken out, or that imposes a penalty for not doing so. It may be-that at common law personal property goes to the administrator, and if none is appointed it possibly would escheat. But the statute provides that personal property not required for -the payment of debts shall be distributed to the heirs, and this must be the rule whether an administrator has been appointed or not. The statute further provides that administration cannot be granted after the lapse of a certain period of time, except possibly where there has been fraud, accident or mistake.
During such statutory period it may possibly be the title to-the property is in abeyance. At its expiration, however, the title thereto vests in the heirs at law, and they may maintain an action thereon. The title of the heirs is joint until there has been a division, just as it would be if the property consisted of real estate; to recover which all the heirs must join,, notwithstanding their shares may be different. The note in question belongs to the plaintiffs jointly, and it matters not. what their respective shares may be; therefore the plaintiffs could have maintained an action at law on the note. They, however, entitled their action in equity. No motion, however, was made to transfer to the law docket, nor was any objection made to the form of the action, nor was it insisted that the action should have been at law in the court below. It cannot, therefore, be made for the first time in this court. It is insisted that the views herein expressed are antagonistic to-what was said in Haynes v. Harris, 33 Iowa, 516. To some-extent this may be true, but that case is clearly distinguishable from this, because the statutes of Indiana do not provide any limitation or statutory bar to granting letters of administration. It appeared, therefore, in that case, that administration might at some future time be granted.
The petition for a rehearing is, therefore, overruled.