#### John Thornton and others, Appellants, v. George Smiley and John Bradshaw, Appellees.

APPEAL FROM UNION.

If one of two administrators, loans the money of the estate, he does it upon his own responsibility, and an action to recover it back, should be brought in his own name alone.

Smiley and Bradshaw, executed their note to Hezekiah West, as administrator of the estate of Weaver, deceased, for a sum of money, to recover which this action was brought in the name of said West and John Thornton and Mary his wife, late Mary Weaver, who were joined with West, in the administration on the estate of Weaver. The money was loaned by West alone, to Smiley and Bradshaw, and the note executed to him alone as administrator. An objection was made by defendants to the improper joinder of parties, which the court sustained, and gave judgment for the defendants. To reverse which, the plaintiffs appealed.

Opinion of the Court. The court knows of no power in the administrator, by virtue of the trust conferred on him by law, to loan the money belonging to the estate ; if he does it, he acts upon his own responsibility, and renders himself liable to the estate. The note was made to West alone, and for that reason, the suit should have been commenced in his name, and a joinder of his co-administrators was improper, as no right of action, to recover the amount of the note, existed in them. Without determining any other question, for this ground alone, the court affirms the judgment, (a) (1)

Judgment affirmed.

(a)

Vide Toller’s law of executors, page 480, where it is declared, that in equity, an executor may be compelled to pay interest, if he suffers the money of the estate to lie idle in his hands. This would seem to authorize a loan, or any other investment of the trust money.

An administrator is not liable to pay interest upon assets in his hands, unless under special circumstances. Dexter v. Arnold, et al., 3 Mason, 248.

(1)

Admitting that the administrator had no right to loan the money, how could the defendant take advantage of it 1 He executed his note to the plaintiff as administrator, and to him it was immaterial whether he was liable to the administrator personally, or in his representative character. Persons interested in the estate might, perhaps, object that the administrator had transcended his duty, and might hold him responsible for it; but if they are content with his actions it is not easily perceived how the defendant can complain.

In Marsh et al. v. The People, 15 Ill., 284, it was held that when three were appointed administrators, each was liable for the acts of the others. If we are right in the proposition that the defendant could not object that the note was not the property of the estate, then it would follow that each being liable for the acts of all the others, all would have a right to join in an action for the recovery of the money.