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A TEEATISE ^/ 3 ^ 
 
 ON THE LAW OF 
 
 Executors, Administrators and Guardians, 
 
 THE REMEDIES BY AND AGAINST THEM, 
 
 bmgat^s' €mxi% of i|e 3Mt of '$t\3 forit; 
 
 TOSETHEB WITH 
 
 AN ACCOUNT OF THE JURISDICTION AND PBAOTICE 
 OF THOSE COUETS 
 
 ADMEASUREMENT OF 330A^ER. 
 
 By JOHN WILLAED, LL. D. 
 
 LATE ONE OF THE JUSTICES OP THE SUPREME COURT OP THE STATE OP NEW YORK, 
 AND AUTHOR OF A TREATISE ON EaUITY JURISPRUDENCE. 
 
 WILLIAM GOULD, LAW BOOKSELLER, 
 No. 60, State Street. 
 
 1859. 
 
fc^?<?^tf 
 
 Entered according to act of Congress, in the year one thousand eight hundred and fifty-nine^ 
 
 By WILLIAM GOULD, 
 
 in the clerk's oflSce of the district court of the northern district of New York. 
 
 Steam PreaseB of G. M. Davison, Siaratoga Springs. 
 
fO 
 
 SI M Y\ 
 
 19S6 / 
 
 ■■■' *s / 
 
 PEEFACE. 
 
 THE followitig treatise was commenced by the author, 
 while he held the office of Surrogate of Washington 
 county, near twenty-five years ago. Before its comple- 
 tion, he was appointed to another judicial station, and 
 remained in office till January, 1854. After his retire- 
 ment from the bench, he was repeatedly desired to com- 
 plete the work ; but did not find leisure to do so until 
 the present time. 
 
 The extensive changes introduced into our statutes 
 relative to matters testamentary and of intestacy during 
 the last twenty-five years, and the light shed upon this 
 department of jurisprudence by the repeated decisions 
 of our courts, made it necessary, in order to conform it 
 to the existing state of the law, to re-write the whole 
 treatise. Pie has accordingly done so, retaining only 
 portions of his early labors. In doing this, he has added 
 greatly to the value of the book ; for he has been enabled 
 to avail himself of the latest published decisions of the 
 courts and the last improvements by the legislature. 
 
 He has subjoined, in an Appendix, a copious selection 
 of forms, more numerous than will be found in any other 
 treatise on the same subjecit. Most of these are such as 
 were used by him in his actual business while holding 
 the office of Surrogate ; to which others have been added, 
 and all have been carefully revised. It is not claiiiied 
 that there is any novelty in these forms ; for it is be- 
 lieved that the general practice of the various Surro- 
 gates' courts is substantially the same in all the counties ; 
 and it is desirable to perpetuate that uniformity. They 
 are intended merely as a guide. The practitioner can 
 
iy PEBFAQE. 
 
 readily adapt them to his case, and abridge or expand 
 them as circumstances may require. 
 
 A treatise of this kind is not a work of imagination, 
 in which the author can draw his materials from his 
 own mind. He has, therefore, felt it to be his duty, in 
 preparing it, to consult the English treatises on kindred 
 subjects, as Avell as those published in this state, and 
 has derived . assistance from all. He has, however, 
 mainly relied upon the statutes and the adjudged cases 
 for the foundation of his work. He has endeavored to 
 state nothing as law unless it was contained in the 
 statutes or adjudged cases, or was fairly deducible from 
 them. 
 
 Should it be asked why the necessity for a new trea- 
 tise on a subject which has already been discussed by 
 others, it may be answered, without disparagement to 
 any one, that the subject embraces a vast variety of 
 topics, and can scarcely be fully illustrated by any one 
 mind. It is far from being exhausted by the writers 
 who have treated of it, or by the present work. 
 
 The testamentary law of this state was borrowed, in 
 , a great measure, from that of the mother country. To 
 adapt it to our wants and social condition, has required 
 the aid both of the legislature and the courts. But it 
 was not till within a few years that the decisions of any 
 of the Surrogates were reported. The valuable reports 
 of Mr. Bradford have added greatly to our acquaintance 
 with this branch of the law. The subject is alike inter- 
 esting to the general reader and the legal practitioner. 
 That the present work may contribute something to- 
 wards a diffusion of knowledge on the topics discussed 
 in it, and furnish aid to those called upon to admin- 
 ister the estates of deceased persons, as executors and 
 administrators, or their counsel, is the ardent wish of 
 the author. 
 
 JOHN WILLAED. 
 Saratoga Springs, August, 1859, 
 
TABLE OF CONTENTS. 
 
 PART FIRST. 
 
 OF THE COXTRT HAVING ORIGINAL JURISDICTION IN THE STATE 
 OF NEW YORK IN MATTERS TESTAMENTARY AND OF INTES- 
 TACY. 
 
 SECTION I. 
 
 Of the Courts having Jurisdiction to Administer the Estates of Deceased Per- 
 sons under the Colony and at the close of the Eevolution, . Page 25-29 
 
 SECTION II. 
 Of the Courts having Jurisdiction to Administer the Estates of Deceased 
 Persons from the close of the Revolution to the Abohtion of the Court 
 of Probates in 1823, 29-31 
 
 SECTION III. 
 Of the Courts having Jurisdiction to Administer the Estates of Deceased 
 Persons since the Abohtion of the Court of Probates in 1823, and as 
 
 they exist at the present time, 32-40 
 
 Organization under Constitution of 1846, 34 
 
 A Court of General original Jurisdiction, .... 34 
 
 Not a Court of EecOrd, 35 
 
 Surrogate a Local Officer, 36 
 
 His General Jurisdiction by Statute, 36 
 
 Do. as to Sales of Real Estate enlarged, 38, 39 
 
 SECTION IV. 
 
 Of the Officers of the Court, 40-45 
 
 In the City of New York, 40 
 
 In Kings County, 41 
 
 In the other Counties, 41 
 
 As to Attorneys and Counsellors, . . . . ^ 41-43 
 
vi TABLE OF CONTENDS. 
 
 As to Sheriffs, Jailors, Coroners, &c ; 43 
 
 General Duties by Statute, 44 
 
 To issue Commission to Foreign "Witnesses, .... 45 
 
 SECTION V. 
 Of Pleadings in Surrogates' Courts, ...... 45-48 
 
 SECTION VI 
 Of the Power of Surrogates' Courts to set aside Proceedings for irregu- 
 larity, and to grant New Trials on the Merits, . . . . 49, 50 
 
 SECTION VII. 
 
 Of Miscellaneous Matters appertaining to the Ofllce of Surrogate, . 50-55 
 
 Wtat Books to be kept by him, 50, 51 
 
 Seal of Office, 52 
 
 To file and preserve Papers 52 
 
 Not to be Counsel or Attorney for or against Executor or Admin- 
 istrator, .... 53 
 
 Nor to be a Partner with such Attorney or Counsellor, . . 53 
 
 Not to act when interested or of Kin, . . . . 53, 54 
 
 "When County Judge to act, 54 
 
 To give Bail, 54 
 
 County Clerk to judge of sufficiency of Sureties, ... 55 
 
 To take the Oath of Office, 55 
 
 PART SECOND. 
 
 OF THE ORIGINAL AND EXCLTISIVE JUEISDICTION OF SUKRO-' 
 gates' courts; and herein of TBLE APPOINTMENT OF EX- 
 ECUTORS AND ADMINISTRATORS. 
 
 CHAPTER I. 
 
 OF WILLS, TIIEIB ORIGIN, NATURE AND INCIDENTS, .... 56-65 
 
 CHAPTER II. 
 
 OF MAKING, REVOKING AND REPUBLISHING WILLS; AND HEREIN OF THE PERSONS 
 CAPABLE or MAKING A WILL OR CODICIL, 65-97 
 
TABLE OP CONTENTS. vii 
 
 SECTION I. 
 
 Of the Persons incapable from want of Testamentary Capacity, . 66 
 
 Infants, ffj 
 
 Idiots, 67 
 
 Deaf and Dumb, 68 
 
 BKnd, 69 
 
 Holograpli, >jq 
 
 Deaf and Blind, 70 
 
 Illiterate, 71 
 
 Persons of Unsound Mind, 72 
 
 Lunatics, 73 
 
 Lucid Interval, 74-79 
 
 Partial Insanity, 80 
 
 Moral Insanity, 83 
 
 Old Age, 84 
 
 Imbecility, 87 
 
 Drunkenness, . , . 88 
 
 SECTION IL 
 
 Of Persons incapable by Restraint, ...,.,. 89-95 
 
 Duress, 89 
 
 Pear, Fraud, Importunity, . . . , . . . 90, 91 
 
 Undue Influence, 93 
 
 Married Women, ......... 93 
 
 SECTION in. 
 
 Of thp Persons disqualified on account of Conviction for Crimes, . 95-97 
 
 CHAPTER III. 
 
 PF THE FOKM AND MANNER OP MAKING A WILL AND CODICIL, . 97-118 
 
 SECTION L 
 
 Of the Statutory Requirements for the Making and Attestation of a "Will 
 or Codicil, 98-112 
 
 SECTION IL 
 
 Of the Form ai}d Language of a Will, and the Materials of which it is 
 composed, afld of the Person by whom it may be written, . 112-115 
 
viii TABLE OF CONTENTS. 
 
 SECTION III. 
 
 Of Nuncupative WiUs, 115-117 
 
 CocUons, 117 
 
 CHAPTER IV. 
 
 OF THE REVOCATION OE WILLS, 118-134 
 
 SECTION I. 
 Of Eevocation by a subsequent WiU, 118-121 
 
 SECTION II. 
 Of Revocation by express terms in a subsequent Will, or other instru- 
 ment, 121-123 
 
 SECTION III. 
 Of Eevocation by cancellation, burning, tearing, obliterating or destroy- 
 ing it, ' . . . 123-126 
 
 SECTION IT. 
 Of Eevocation effected by a change in the Testator's condition, such as 
 Marriage and the like, and of implied and partial Eevocation, . 127-132 
 
 SECTION V. 
 Ofthe Eepublication of Wills, and the effect thereof, . . . 132-134 
 
 CHAPTER V. 
 
 OE THE APPOINTMENT OF EXECUTORS; THEIR AOOEPTANOB, REEUSAL AND RENUN- 
 CIATION or THE OFFICE, 134-145 
 
 SECTION I. 
 Who are EHgible and who not, 134-141 
 
 SECTION II. 
 Of the Executor's refusal or acceptance of the Office, and of the conse- 
 sequences of such refusal, 141-145 
 
TABLE OF CONTENTS. 
 
 CHAPTER VI. 
 
 OF PROBATE, AND OF THE PROOF AND RECORDING OF WILLS OF REAL 
 
 ESTATE, . 145-184 
 
 SECTION I. 
 
 Of Probate, . ... 145 
 
 Executor's Power before Probate, . . ... 147 
 
 What Surrogate has Jurisdiction of, . . . 148 
 
 Manner of Obtaining, . .... 149, &c. 
 
 By what Parties, 149, 152 
 
 On whom Citation to be served, . . . . 154, &c. 
 
 G-uardians ad litem for Minors, 157 
 
 In case any of tlie Parties are Married Women, . . . 158 
 
 What constitutes the Probate, 145, 160 
 
 Letters Testamentary, . ... . . 160 
 
 Foreign Executor, and Will of Foreigner, . . . 162 e* seg. 
 
 Testimony to be Recorded, . . ... 165 
 
 Nuncupative Will, . . 167 
 
 SECTION IL 
 Of the Proof and Recording of Wills of Real Estate, . . . 167,174 
 
 SECTION III. 
 Of Evidence in Testamentary Cases, 174-184 
 
 CHAPTER VII. 
 
 OF ADMINISTRATION, AND THE APPOINTMENT OF ADMINISTRATORS, 
 
 SECTION L 
 
 184-207 
 
 To the Surrogate of which County application must be made for Letters 
 of Administration, and what may be done by the Administrator 
 
 before the Grant, 187, 188 
 
 SECTION II. 
 
 Of the Persons to whom General Administration is to be granted in 
 oases of total intestacy ; and herein of those who are incapacitated to 
 become such Administrators, 188-201 
 
 2 
 
X TABLE OP CONTENTS. 
 
 SECTION III. 
 Of the Practice of the Court, its mode of Proceeding in granting Letters 
 of Administration, and of their Form, . . 201-206 
 
 CHAPTER VIII. 
 
 or SPECIAL, LIMITED AND TEMPOEAEY ADMINISTRATORS AND COLLEOTOE, 207-225 
 
 SECTION I. 
 Of Administration cwm iesfammto cmnOTO, . . . . 207-211 
 
 SECTION ir 
 
 Of Administration de, bonis non, . . . . 211-214 
 
 SECTION III. 
 Of Administration durante minore cetate ; and herein of Administration 
 to the Guardian of an Infant next of Kin, , , . 214-219 
 
 SECTION IV. 
 Of Collector, and herein of Administration pendente lite, durantia absentia, 
 and other hmited and temporary Administration, . . 219-223 
 
 SECTION V. 
 
 Of the Administration Bond, and the Bond given by an Executor by 
 order of the Court, . 224,225 
 
 CHAPTER IX. 
 
 OF THE EFEECT OF PEOBATE AND LETTERS OF ADMINISTRATION AS LONG AS THEY ARE 
 IN FORCE ; OF THE REVOCATION OF THEM, AND OF THE CONSEQUENCES THEREOF, 
 
 225-243 
 SECTION L 
 Of the effect of Probate and Letters of Administration as long as they 
 remain unrepealed and unrevoked, 225-229 
 
 SECTION n. 
 Of the Restoration of Probate, 229-234 
 
 SECTION IIL 
 Of the Revoking of Letters Testamentary and Letters of Administra- 
 tion, and of their effect upon intermediate acts, . . 234^241 
 
TABLE OF CONTENTS. xi 
 
 SECTION IV. 
 Of the Revocation of Probate or Letters of Administration by Appeal, 
 and of the effect of such Revocation on the mesne acts of the Exec- 
 utor or Administrator, 241-243 
 
 CHAPTER X. 
 
 OF THE INVENTORY, 243-269 
 
 SECTION L 
 Of the Ancient Practice on the subject of Inventories, . . 244-248 
 
 SECTION II. 
 Of the Present Practice of making and returning an Inventory by 
 the Revised Statutes ; and herein of the appointment of Appraisers, 
 their power and duties, . . 248-263 
 
 SECTION in. 
 Of the method of compelling a Return of an Inventory when the Exec- 
 utor or Administrator omits that duty; and herein of compeUing a 
 further Inventory, 263-267 
 
 SECTION IV. 
 
 Of collecting the Effects; and herein of the power of disposing of them, 
 
 267-269 
 
 CHAPTER XI. 
 
 OF THE PAYMENT OF THE PEBSONAL CHARGES, AND THE OKDEB OF PAYING TH!E OTHER 
 LIABILITIES OF THE ESTATE, 269-293 
 
 SECTION I. 
 Of Euneral Expenses, 269-274 
 
 SECTION IL 
 
 Of Debts entitled to a preference under the laws of the United States, 
 
 274-277 
 SECTION in. 
 
 Of Taxes assessed upon the Estate of the Deceased previous to his 
 death, 277-279 
 
TABLE OF CONTENTS. 
 
 SECTION IV. 
 
 Of the Preference in the payment of Judgments docketed, and Decrees 
 enrolled against the deceased, according to their priority, . 279-284 
 
 SECTION V. 
 
 Of the payment of Recognizances, Bonds, Sealed Instruments, Notes, Bills, 
 and Unliquidated Demands and Accounts, . . . 284-290 
 
 SECTION VI. 
 
 Of the payment of an Inferior Debt before a Superior, and of miscellane- 
 ous matters in relation to this subject, 290-293 
 
 CHAPTER XII. 
 
 OF THE EIGHTS AMD DUTIES OF EXECUTORS AND ADSDNISTEATOES, WITH EESPEOT TO 
 THE PAYMENT OF THE DEBTS OF THE DECEASED, .... 293-304 
 
 SECTION I. 
 
 Of the rights and duties of Executors and Administrators with respect 
 to calling for a presentation of Claims against the Estate ; and herein 
 of enforcing payment before the time to account, . . . 293-299 
 
 SECTION II. 
 Of enforcing the payment of Judgments against Executors or Adminis- 
 trators, 299-304 
 
 PART THIRD. 
 
 OF SUBJECTS COGNIZABLE IN SURROGATES' COURTS OF -WHICH 
 THET HAVE NOT EXCLUSIVE JURISDICTION ; AND HEREIN OF 
 VARIOUS STATUTORY PROCEEDINGS IN THOSE COURTS. 
 
 CHAPTER I. 
 
 OF PEOOEEDINGS BT EXECUTORS OE ADMINISTRATOES ON THEIE OWN APPLICATION BE- 
 FOEE THE SURROGATE, TO OBTAIN AUTHOEITT TO MOKTGAGE, LEASE OE SELL THE 
 E'EAl ESTATE OF THE DECEASED FOE THE PAYMENT OF DEBTS, . . 306-344 
 
TABLE OP CONTENTS. xiii 
 
 SECTION I. 
 
 Of the tinrfe and manner of making application for authority to Sell, Lease 
 or Mortgage the real estate of the deceased, on the application of the 
 Executors and Administrators, and the proceedings thereon previous 
 to granting the order of sale, 306-321 
 
 SECTION II. 
 
 Of granting an order for Mortgaging, Leasing or Selling the Real Estate of 
 the deceased, and the proceedings thereon, to the rfonsummation 
 thereof, 321-333 
 
 SECTION III. 
 
 Of the Distribution of the avails of the Real Estate of the deceased, leased, 
 mortgaged or sold, under the order of the Surrogate, . . 333-344 
 
 CHAPTER II. 
 
 OF PROCEEDINGS AGAINST EXECUTOKS OR ADMINISTRATORS TO CAUSE AN APPLICA- 
 TION TO BE MADE TO THE SURROGATE FOR AN ORDER TO LEASE, MORTGAGE OK 
 SELL THE REAL ESTATE OF THE DECEASED, FOR THE PAYMENT OF HIS DEBTS, 
 
 344^347 
 CHAPTER III. 
 
 OF LEGACIES, THEIR DIFFERENT KINDS AND INCIDENTS, AND THE CONSTRUCTION 
 THEREOF, 348-377 
 
 SECTION I. 
 Of the different kinds of Legacies, 348-36^ 
 
 SECTION IL 
 Of the effect of Legacies on the relation of Debtor and Creditor, 365-368 
 
 SECTION IIL 
 Of the Person capable of being a Legatee, and of certain Rules of Con- 
 struction, not only of the Will, but with regard to the thing be- 
 queathed, and the Person to v?^hom it is bequeathed, . . 368-377 
 
 CHAPTER IV. 
 
 OF THE PAYMENT OF LEGACIES, AND HEREIN OF THE PAYMENT OF THE RESIDUE 
 AND OF DISTRIBUTIVE SHARES, ..'■.... 377-409 
 
xiv TABLE OF CONTENTS. 
 
 SECTION I. 
 Of the time of Payment, 377-379 
 
 SECTION II. 
 Of the Assent of the Executor to a Legacy, .... 379, 380 
 
 SECTION III. 
 Of the Order in which Legacies are to be Paid, and of Abatement of 
 Legacies, 380-383 
 
 ^&""'^^"; 
 
 SECTION IV. 
 Of the Person to whom a Legacy is to be Paid, . . 383-390 
 
 SECTION V. 
 
 Of Interest on Legacies ; of the Increase of Legacies ; of Legacies charged 
 on Land ; and of Refunding Legacies, 390-394 
 
 SECTION VL 
 Of the Payment of the Residue, and of the Eights of the Executor thereto 
 when there is no Residuary Legatee, . . . . . 394, 395 
 
 SECTION VII. 
 Of Distribution, and of the Duties of an Executor or Administrator with 
 respect thereto, 395-409 
 
 CHAPTER V. 
 
 or ENFORCING THE PAYMENT OF LEGACY AND OF DISTEIBnTITE SHARES IN SUB- 
 ROGATES' courts; AND HEREIN OF COMPELLING AND RENDERING FINAL AC- 
 COUNTS, , 409-443 
 
 SECTION I. 
 
 Of the Mode of Enforcing the Payment of Legacies and Distributive 
 shares, 410-422 
 
 SECTION IL 
 Of the Parties necessary to a Greheral Account ; the mode of serving 
 Process ; and herein of the appointing Guardians ad litem for Minors, 
 and notice to Creditors to exhibit Claims, .... 422-426 
 
 SECTION III. 
 Of the mode of Rendering the Account ; and herein of Auditors and 
 allowing the Claims of Executors or Administrators aganist the 
 Estate, and of their Commissions and Expenses, . . . 426-434 
 
TABLE OP CONTENTS. XV 
 
 SECTION lY. 
 
 Of the effect of the Final Settlement ; of the form of the Decree thereon ; 
 Distribution, and the mode of enforcing it, . . . 434-440 
 
 SECTION V. 
 Of Rendering an Account by an Executor or Administrator in other 
 cases, and of Costs, 440-443 
 
 CHAPTER VI. 
 
 OF GUARDIAN ASD WARD, 443-464 
 
 SECTION I. 
 Of the different kinds of Guardians, their Powers and Duties, . 443-452 
 
 SECTION 11. 
 Of the Appointment of Guardians, and in what way it is made, 452-459 
 
 SECTION III. 
 Of the removal of Guardians by the Surrogate ; accepting their resigna- 
 tion ; and of their Accounting before the Surrogate, . . 459-464 
 
 CHAPTER VII. 
 
 of admeasueemnt of dower, .... . . 464-471 
 
 Appendix of Forms, .... 473 
 
TABLE OF CASES. 
 
 Adams v. Winne, 130, 132. 
 
 Adsit V. Adsit, 334. 
 
 Aikin v. Dunlap, 276. 
 
 Ainslie v. EadcliflF, 281, 283. 
 
 Aird, in the goods of, 138. 
 
 Albany City Bank v. Schermerhorn, 
 
 439, 440. 
 ARen v. The Public Administrator, 92. 
 
 " V. Dundas, 226, 229. 
 
 " V. Bishop, 285. 
 Allen and Wife v. Bishop's Executors, 
 
 298. 
 Almes V. Blythe, 195. 
 
 " V. Almes, 213, 155. 
 Alston V. Jones, 233. 
 Anderson, Matter of, 446, 447', 459. 
 Anstruther v. Ohalmer, 60, 164. 
 Applegate v. Cameron, 253. 
 Appleby, in re., 124. 
 Archer v. Morse, 226. 
 Arthur v. Arthur, 132. 
 Armstrong v. Moran, 354. 
 Atkins V. Kinnan, 39, 223. 
 Atkinson, Matter of, 169. 
 Attorney General v. Hooker, 394. 
 Ayrey v. HUl, 58. 
 
 B 
 
 Baboock v. LiUis, 417. 
 " V. Booth, 140. 
 Bagsley v. Buce, 465. 
 Baggott V. Boulger, 298, 224. 
 Bagwell V. Dey, 354. 
 Baine v. Pine, 218. 
 Baker v. Kingsland, 315. 
 Bank of Poughkeepsie v. Hasbrouck, 
 
 436. 
 Bannatyne v. Bannatyne, 79. 
 feanks V. Philan, 376, 394. 
 
 3 
 
 Barker v. May, 419. 
 Barheydt v. Barheydt, 370. 
 Barry v. Butler, 72, 114. 
 Barstow V. Goodwin, 130, 132. 
 Barnes v. Crowe, 133. 
 Barrington .T. Tristam, 391. 
 Bartholomew v. Henley, 110. 
 Barton v. Bobbins, 70, 71. 
 Barnsley, ex parte, 72. 
 Becker V. Dunning, 98. 
 Beck V. GilUs, 132. 
 Bennett v. Wade, 90. 
 
 " V. SilUman, 110. 
 
 " V. Byrne, 455. 
 Bell V. Armstrong, 152. 
 Bernes v. Weisser, 280. 
 Berry v. Usher, 367. 
 Betts V. Jackson, 126. 
 Beverly's case, 67, 73. 
 Bibby v. Myer, 158. 
 Birdsall v. Hewlett, 357, 390, 392. 
 Bishop V. Bishop, 354. 
 Bogardus v. Trinity Church, 27. 
 
 " V. Clark, 61, 226. 
 Bodle V. Hulse, 144. 
 Bogert V. Purman, 196. 
 
 " V. Hertell, 269. 
 Bolton V. Barry, 87. 
 Bostwick V. Atkins, 39. 
 Bowers t. Smith, 394. 
 Borst V. Griffin, 465. 
 Bowles V. Harvey, 264. 
 Blanchard v. Nestle, 67, 68, 73, 87, 
 
 91, 115. 
 Blackborough v. Davis, 404. 
 Bleecker v. Lynch, 158. 
 Bloodgood V. Bowen, 342, 420. 
 Bloom V. Burdiok, 31, 35, 37, 38, 99, 
 
 312, 313. 
 Bloomer v. Bloomer, 240. 
 Bhss V. Sheldon, 254. 
 Brinkerhoof v. Kemsen, 102, 108. 
 
XVIU 
 
 TABLE OF CASES. 
 
 Bridge v. Brown, 272. 
 Bradstreet v. Clark, 369. 
 Bradley v. Amidon, 370. 
 Bradner v. Falkner, 378, 382, 390. 
 Brett V. Brett, 104. 
 Brogden v. Brown, 75, 79, 83. 
 Brush V. Wilkins, 127. 
 Brown v. Brown, 132. 
 
 " exjparte, 209. 
 
 " V. The Public Administrator, 
 279. 
 
 " V. AUen, 383. 
 
 " V. Lynch, 454. 
 Browning v. Eeane, 191. 
 Bronsdon v. Winter, 350. 
 Bronson v. Ward, 413, 421. 
 Burk V. Draper, 30. 
 Bullock V. Bogardus, 296, 297. 
 Bulkley v. Eedmond, 125, 126, 169, 
 
 150. 
 Bunce v. Vander Griff, 135. 
 Bunn V. Winthrop, 372. 
 Surges V. Surges, 50. 
 Burr, Matter of, 89. 
 Burdick v. Gibbs, 95. 
 BurweU v. Shaw, 160. 
 Burritt v. SiUiman, 176. 
 Burr V. Burr, 134, 399. 
 
 " V. Sherwood, 404. 
 Budd V. Silver, 198. 
 Burtis V. Dodge, 442, 340, 390. 
 Butler V. Benson, 100, 106. 
 
 " V. Butler, 247. 
 
 " V. Hempstead's Executors, 284, 
 291, 299, 300. 
 
 " V. Eobson, 414. 
 Burridge v. Bradyl, 381. 
 Butts V. Genung, 338. 
 Byrne v. Van Hoesen, 444. 
 
 c 
 
 Cairns v. Chaubert, 389. 
 Campbell v. Logan, 105. 
 
 " V. Bowne, 218. 
 
 " V. Bruen, 303, 438, 416, 417, 
 421. 
 
 " V. Prescott, 371. 
 Canal Commissioners V. The People, 27. 
 Carle v. Underbill, i03. 
 Cartwright v. Cartwright, 75, 182. 
 Carroll v. Norton, 182. 
 Caw V. Robertson, 171, 176, 368. 
 Chaffee v. Baptist Convention, 71, 100, 
 
 101, 108. 
 Cliampion v. Brown, 331. 
 Chanders, Duke of, v. Talbot, 358. 
 
 Chandes v. Northup, 417. 
 Churchill v. Prescott, 198, 404, 406. 
 Chrystie v. Phyfe, 354. 
 Clark V. Fisher, 74, 87, 182. 
 Cleaver v. Spurling, 359. 
 
 " V. Sawyer, 74, 87, 91. 
 
 " V. Lean, 718. 
 
 v. Clark, 342, 389, 420, 450. 
 Coates V. Cheever, 470. 
 Collier v. Idley's Executors, 152, 230, 
 
 232, 233. 
 Commonwealth v. Leach, 27. 
 
 " V. Knowlton, 27. 
 
 Conklin v. Egerton's Executors, 209. 
 Conard v. The Atlantic Ins. Co. 276. 
 Cooper v. Bockett, 102. 
 
 " v. Green, 157. 
 
 " v. Remsen, 359, 360. 
 Coope v. Lowerre, 136, 137, 197. 
 Colegrove v. Horton, 237. 
 Coleman V. Coleman, 348. 
 Collins V. Macpherson, 355. 
 
 " V. Hoxie, 374. 
 Cockerell v. Barber, 361. 
 Covenhoven v. Shuler, 369, 388. 
 Connoly v. Pardon, 389. 
 Conigan v. Kiernan, 453. 
 Countess of Gower v. EarlGower, 372. 
 Cox V. Godslave, 873. 
 Corwin v. Merritt, 31, 810, 812. 
 
 " V. Merrick, 35, 37. 
 Couch V. Delaplain, 836. 
 Cornish v. Cornish, 50. 
 Colton V. Ross, 60. 
 Cotter V. Lawyer, 180. 
 Cotteral v. Brock, 136. 
 Craig V. Craig, 391, 342, 417. 
 Creeley v. Ostrander, 86. 
 Crispell v. Dubois, 72, 114. 
 Cromer v. Pinohon, 369, 375. 
 Crosby v. Clare, 375. 
 Crumb, Matter of, 447, 459. ■ 
 Curling V. Thornton, 163, 164. 
 Culver V. Haslam, 179, 180, 181. 
 Cunningham v. Burdell, 192. 
 
 D 
 
 Dakin v. Hudson, 81, 85. 
 Davis V. Shields, 113. 
 
 " V. Skidmore, 301. 
 Dale V. Roosevelt, 212, 
 Dawes v. Head, 406, 
 Day, ex parte, 60. 
 Day V. West, 194. 
 Dean v. Russell, 42, 
 Den v. Johnson, 74, 
 
TABLE OP CASES. 
 
 XIX 
 
 Delafield v. Parish, 219. 
 Delaplane v. Lawrence, 326, 328. 
 De Peyster v. Clendening, 388. 
 
 " V. Clarkson, 450, 451. 
 
 De Witt V. Yates, 362. 
 Dewey v. Dewey, 179. 
 
 " v. Bailey, 181, 182. 
 Dew V. Clark, 81. 
 Dickinson v. Dickinson, 113. 
 Dissosway y. The Bank of Washington, 
 
 295, 299, 417. 
 Disbrow V. Henshaw, 459. 
 Dix V. Keid, 360. 
 Dixon's Executors v. Eainsay'sExecu- 
 
 cutors, 405. 
 Doe v. Roe, 49, 101, 108. 
 
 " V. Burdett, 102. 
 
 " V. Perkins, 125. 
 
 " V. Backintose, 140. 
 Dobbeer v. Casey, 291. 
 Dodge Y. Manning, 858, 392. 
 Dominick v. Michael, 341. 
 Doran v. Dempsey, 4:88, 439, 463. 
 Dox V. Backinstose, 299. 
 Dubois V. Dubois, 439. 
 Duffield V. Eobison, 88. 
 Duncan v. Dodd, 326. 
 Dyer, Matter of, 451, 452, 461. 
 
 E 
 
 Earl of Darlington v. Pultney, 58, 60. 
 
 Easton's Will, Matter of; 169. 
 
 Eddy V. Traver, 324. 
 
 Edwards v. Freeman, 401. 
 
 EUis V. Walker, 349. 
 
 Elliott V. Grurr, 191. 
 
 Elme V. De Costa, 199. 
 
 Emerson v. Bowers, 136, 137, 205. 
 
 Enders y. Enders, 349, 353. 
 
 Evans y. Thomas, 74. 
 
 " V. Tripp, 350. 
 Evelyn v. Evelyn, 404. 
 Eyer v. Countess of Shaftsbury, 451. 
 
 F 
 
 Fame v. Tyler, 150. 
 Earnsworlii y. Oliphant, 463. 
 Parrington v. King, 319. 
 Fenwick v. Sears, 163. 
 Ferguson v. Brown, 315, 317. 
 Field y. Schiefifelin, 444, 449, 450. 
 Fitzpatrick v. Brady, 291, 299. 
 Fittiplace v. Gorges, 93. 
 Pinch, Sir Moyle's case, 217. 
 Flagg v. Ruden, 297, 412. 
 
 Floyd V. Barker, 394. 
 Francisco v. Filch, 417. 
 Freakley y. Pox, 317. 
 Freeman v. The People, 83. 
 Frere v. Peacoke, 83. 
 Frits, matter of, 424, 448. 
 Fonda v. Van Home, 443. 
 Fonereau v. Ponereau, 356. 
 Foot V. Stevens, 31, 32. 
 Foot V. Gooding, 296, 297. 
 Foster v. Mott, 447, 454. 
 
 " V. Wilbur, 46, 413, 414, 416. 
 
 " y. Foster, 125. 
 Poshay v. Ferguson, 90. 
 Pox V. Pox, 367. 
 Puller V. Yates, 364. 
 PuUer V. Jackson, 453. 
 
 Q 
 
 Gage V. Gage, 102. 
 
 Gale V. Edsall, 467. 
 
 Gansevort v. Nelson, 297. 
 
 Gardner v. Gardner, 92, 428, 433. 
 " V. Miller, 261, 262. 
 " V. Printup, 352, 354. 
 " V. Heyer, 374. 
 
 Garrat y. Niblock. 376. 
 
 Garrick v. Lord Camden, 376. 
 
 Genet v. Taknadge, 383, 384, 409, 
 443, 449. 
 
 Gibbons v. Cross, 228. 
 
 GiUiat v. Gilliat, 166. 
 
 Gilchrist y. Rea, 39. 
 
 Glen v. Fisher, 391. 
 
 Glover v. Holley, 37. 
 
 Glynn v. Oglander, 112. 
 
 Gombault y. The Public Administra- 
 tor, 69, 70, 79. 
 
 Gottsberger v. Smith, 222. 
 
 Grant v. Leslie, 138. 
 
 Graham y. The Public Administrator, 
 405. 
 
 Gratacap v. Phyfe, 413, 416. 
 
 Green v. Shipworth, 113. 
 
 Grignion v. Grignion, 413, 420. 
 
 Grotgen v. Grotgen, 192. 
 
 .H 
 
 HaoHey v. Hayton, 282. 
 Halsey y. Reid, 288. 
 Harris v. Fly, 357, 392. 
 
 " y. De Wolf, 276. 
 
 " v. Clark, 417. 
 Harrison v. Nixon, 60. 
 " v. Stetty, 276. 
 
XX 
 
 TABLE OP CASES. 
 
 Harrison v. Rowley, 360j 361. 
 Hart V. Coltrain, 148. 
 
 " V. Marks, 394 
 Hardwiok v. Thurston, 355. 
 Harker v. Newborn, 91. 
 Havens t. Van Denburgh, 127. 
 
 " V. Havens, 182. 
 
 " V. Poster, 133. 
 
 " matter of, 260. 
 Hallet V. Hare, 403. 
 
 " matter of, 369. 
 HaU V. McLaugMn, 342. 
 Hawley v. James, 364. 
 Harvey v. Olmstead, 371. 
 Hayner v. James, 161. 
 Hancock v. Podmore, 270. 
 Heath v. Dendy, 381. 
 Henry v. Bowers, 136. 
 
 " v. Bishop, 106. 
 Hensloe's case, 144. 
 Hepburn v. Hepburn, 390. 
 Hewitt V. Hewitt, 323. 
 Hemiup, matter of, 39. 
 Higgins V. Higgins, 264. 
 Hinton v. Pinke, 381. 
 Hix V. Whittemore, 79: 
 Hobson V. Blackburn, 60. 
 Hodges, matter of, 448. 
 Hoes V. Van Hoesen, 358, 393. 
 Holmes v. Cook, 136, 224, 342. 
 
 " v. Holmes, 94. 
 
 " V. Seeley, 444. 
 HoUenbeck v. Pleming, 106. 
 Hone V. Pisher, 288. 
 
 " V. Van Shaick, 369. 
 Horton v. Horton, 328. 
 House V. House, 258, 260. 
 Howard v. Papera, 136. 
 
 " v. Moffat, 387. 
 Hubbard v. Hubbard, 134, 138, 167. 
 HubbeU v. Coudy, 279. 
 Humphreys v. Humphreys, 147, 351. 
 " Hunter v. United States, 276. 
 Hurst V. Beach, 363. 
 Hurtin v. Proal, 402. 
 Hyde v. Hyde, 468. 
 
 " V. Stone, 443. 
 
 Ingraham v. Wyatt, 87. 
 Irving V. De Kay, 369. 
 Isham V. Gibbon, 50, 163, 165. 
 
 Jackson v. Aspell, 465. 
 
 Jackson v. Babcock, 110. 
 
 " V. Betts, 126. 
 
 " V. Bull, 371. 
 
 " V. Cohens, 126. 
 
 " V. Ohristman, 179. 
 
 " V. Combs, 443. 
 
 " V. Delanoy, 370. 
 
 " V. De Watts, 444. 
 
 " V. Bmbler, 370. 
 
 " V. Halloway, 123. 
 
 " V. Harris, 371. 
 
 " V. Irwin, 321, 324. 
 
 " V. King, 68, 73. 
 
 " V. Knifan, 89. 
 
 " V. MerriU, 110, 370. 
 
 " V. Potter, 123. 
 
 " V. Randall, 465. 
 
 " V. Robinson, 308. 
 
 " V. Totten, 467. 
 
 " V. Van Dusen, 74, 98, 105. 
 
 " V. Whitehead, 141. 
 
 " V. Wells, 370. 
 James v. James, 394. 
 Jauncey v. Thorn, 109, 179. 
 Jaques v. Methodist B. Church, 93. 
 Jennings v. Q-allimore, 376. 
 Johnson v. Baker, 272. 
 Jones V. Beytash, 210. 
 
 K 
 
 Kaine v. Masterton, 328. 
 
 " V. Pisher, 253, 256, 260. 
 Keane, in the goods of, 200. 
 Kearney v. Whitmark, 100, 101. 
 Kellett v. Rathbun, 157, 422, 424, 427, 
 
 428. 
 KeUy V. Powlett, 372. 
 KeUogg, Matter of, 451. 
 Kelsey v. Western, 393. 
 Ker V. Moon, 156, 168. 
 Kenny v. Jackson, 246. 
 Keeney v. Whitmarsh, 158. 
 Kidd T. Chapman, 299. 
 The King v. Raines, 135. 
 Eng V. Strong, 394. 
 Kindleside v. Harrison, 91, 182. 
 Kirby v. Turner, 224, 452, 455. 
 
 " T. Potter, 351. 
 Kittletas v. Gardner, 446. 
 Knapp v. The Public Administrator, 
 
 252. 
 Kniokerbacker v. De Freest, 159, 425. 
 Kohler v. Knapp, 149, 158. 
 Kooystra v. Buyskes, 209. 
 
TABLE OP CASES. 
 
 XXI 
 
 Lambell v. Lambell, 126. 
 Langdon v. Astor's Ex'rs, 131, 124. 
 Larkin v. Randall, 31. 
 Larker v. Larker, 363. 
 Larpent v. Sindey, 168. 
 Lawrence v. Lawrence, 142, 145. 
 " V. Brown, 313. 
 V. Miller, 329. 
 " V. Embree, 391. 
 Laycroft v. Simmons, 86. 
 Le Briton v. Fletcher, 179. 
 L'Amoreux v. Crosby, 89, 115. 
 Lemann v. Bonsall, 65. 
 Leonard v. Morris, 298. 
 Lewis V. Lewis, 100, 102. 
 
 " V. DarHng, 329, 393. 
 Livingston^v. Newkirk, 336. 
 Lillie V. Lillie, 126. 
 Lockwood V. Stockholm, 190, 420. 
 Lupton V. Lupton, 291, 328, 329, 388, 
 
 390, 392, 393. 
 Lush T. Alburtis, 155. 
 Lynn v. Beaver, 61. 
 Lyon V. Smith, 106. 
 
 M 
 
 Major V. Williams, 121. 
 Mandeville v. Mandeville, 136, 137. 
 Manhattan v. Everton, 280. 
 Mann v. Mann, 369, 372. 
 Maples V. Howe, 324, 329. 
 Marre v. Gonobhio, 267. 
 Marsh v. Evans, 382. 
 Marsh v. Wheeler, 357. 
 
 " V. Tyrrell, 95. 
 Marquis of Winchester's case, 74, 87. 
 Marston v. Roe, 128. 
 Marriot v. Marriot, 229. 
 Marvin v. Stones, 261, 262. 
 Masters v. Masters, 271, 363, 372. 
 M'Kay v. Green, 393. 
 McLoskey v. Reid, 384, 418. 
 MoWhorter v. Benson, 429. 
 McAdam v. Walker, 78. 
 McMahon v. Harrison, 136, 137. 
 MoCorker v. Golden, 190, 191, 399. 
 McCormiok, ex parte, 59, 165. 
 McDonough v. Loughber, 176. 
 McCartee v. Camel, 299. 
 McNamara v. Dwyer, 406. 
 Mason V. Jones, 233, 369. 
 Mersereau v. Eyers, 298. 
 Metzger v. Metzger, 432. 
 Metcalf, in the goods of, 186. 
 
 Miller v. Miller, 91. 
 
 " V. Peckle, 97. 
 Miles V. Boyden, 133. 
 Mills V. Duryee, 280. 
 Mirehouse v. Scaife, 329. 
 Minkler v. Minkler, 126. 
 Mitchell V. Blair, 129. 
 Moers v. White, 30, 133, 308, 317. 
 MoUan v. Griffiths, 287. 
 Montgomery v. Dunning, 267. 
 Mootrie v. Hunt, 221. 
 Moore v. Moore, 314. 
 Morrell v. Dickey, 168, 406. 
 
 " ex parte, 138. 
 Mountain v. Bennett, 90, 92. 
 Morris v. Mowat, 315. 
 
 " V. Kent, 362. 
 Mounsey v. Blamire, 376. 
 Mowatt v. Carow, 375. 
 Muu- V. The Trustees of the L. and W. 
 
 Assylum, 226. 
 Mynn v. Robinson, 95. 
 
 Nan Mickell, matter of, 130. 
 
 Needham v. Ide, 180. 
 
 Nelson v. MoGiffert, 109, 122, 179, 
 
 Newell V. Weeks, 151. 
 
 Newkirk v. Newkirk, 371. 
 
 Newton v. Pope, 182. 
 
 New York P. and D. Establishment 
 
 V. Pitch, 461. 
 Nichols V. Chapman, 281, 290. 
 
 " V. Osborn, 359. 
 Nicoll, matter of, 446. 
 
 
 
 O'Brien v. Hagan, 97. 
 OdeU V. Buck, 68, 73. 
 Ogden V. Smith, 167, 341. 
 Ogilvie V. Hamilton, 50. 
 OgneU, Andrew's case, 128. 
 Onions v. Tyren, 124. 
 O'Neal V. Parr, 133. 
 Orr V. Kaines, 246. 
 
 Palmer v. Trevor, 387. 
 Paice V. The Archbishop of Canter- 
 bury, 272. 
 Park V. Hardey, 465. 
 Parker v. Gainer, 284. 
 
 " V. Bogardus, 370. 
 
 " matter of, 419. 
 
XXll 
 
 TABLE OP CASES. 
 
 Parks V. Parks, 369. 
 
 Parker's Executors v. Gaines, 298. 
 
 Patterson v. Ellis, 351. 
 
 Pawling V. Bird, 279. 
 
 Payne v. Mathews, 335. 
 
 Peacock v. Monk, 93. 
 
 Pearson v. Pearson, 391. 
 
 Peebles v. Case, 179. 
 
 Peebles, appeal of, 227, 229. 
 
 People V. Albany Mayor's Court, 286. 
 
 " T. Albany County Judges, 299. 
 
 " T. Barnes, 35, 225. 
 
 " V. Corliss, 225. 
 
 " V. Chegaray, 446. 
 
 " V. Eastwood, 182. 
 
 " T. Graham, 287. 
 
 " V. Gould, 223, 225. 
 
 " V. McDonald, 225, 246, 266. 
 
 " V. Mercein, 446. 
 
 " .V. Pelham, 264. 
 
 " V. Rogers, 440. 
 
 " V. Bundle, 287. 
 Perkins v. Cottrel, 94. 
 
 " V. Miohlethwaite, 354. 
 Perrott v. Perrott, 124. 
 Petrie v. Shoemaker, 68. 
 Peters v. The Public Administrator, 
 
 203. 
 Pew V. Hastings, 49. 
 Pelletreau v. Eathbone, 420. 
 Phiffips V. Bigaell, 245, 246, 263. 
 Pitt T. Woodham, 246. 
 Pierce, matter of, 446. 
 Plume V. Beale, 226. 
 Pond V. Curtis, 450. 
 Poole V. Richardson, 179. 
 Price V. Dewhurst, 60. 
 Pratt V. Jenkins, 372. 
 Prince v. Hazleton, 64, 167. 
 Public Administrator v. Watts, 48, 231. 
 " " v.Peters,195,198. 
 
 " V. Burdell, 222. 
 
 " " V. Hughes, 403. 
 
 Pumpelley v. Tinkham, 140. 
 Purse V. Snaplin, 350. 
 Porter v. Tournay, 372. 
 
 R 
 
 Randall, in the goods of, 186, 200. 
 
 Rathbone y. Dyckman, 369. 
 
 Rattoon v. Overaoker, 188. 
 
 Rafferty t. Clark, 393. 
 
 Rea V. MoEaohron, 39. 
 
 Reid V. Vanderheyden, 42, 183. 
 
 Remsen v. Brinkerhoof, 98, 101. 
 
 Renwick v. Renwick, 191. 
 
 " matter of, 48, 317, 335. 
 Reynolds v. Collins, 296. 
 
 " V. Reynolds, 328, 393. 
 Rex V. Bettesworth, 191, 207, 210. 
 Eiebens v. Hicks, 103, 108. 
 Richards v. Mumford, 123, 126. 
 Rice V. Oatfield, 179. 
 Rich V. Corkell, 228. 
 Richardson v. judah, 346. 
 Rider v. Wager, 366. 
 Roberts, matter of, 59. 
 Robertson v. McGeoch, 143, 
 
 " Y. Caw, 358. 
 Rogers v. Pitts, 122. 
 
 " V. King, 418, 419. 
 
 " V. Hosack's Ex'rs, 286. 
 
 " V. Rogers, 318, 430, 431. 
 Roosevelt v. Mark, 318. 
 Rose V. Rose, 132. 
 
 " V. Bartlett, 138. 
 Rudden v. McDonald, 101. 
 Russell V. Lane, 297. 
 Rutherford v. Rutherford, 107. 
 Rymer v. Olarkson, 113. 
 
 s 
 
 Sanford v. Granger, 316, 345, 309. 
 
 Savage v. Blythe, 155, 195. 
 
 Satterthwaite v. Powell, 192. 
 
 Scruby v. Pordham, 78, 122, 124, 125. 
 
 Scott V. Rhodes, 104. 
 
 Soofield V. Soofield, 253, 256, 257. 
 
 Schermerhorn v. Barhydt, 298. 
 
 Seaman y. Duryea, 35, 439, 463. 
 
 Seabury v. Brown, 278. 
 
 Sears v. Mark's assignees, 336. 
 
 Seguine v. Seguine, 101, 108, 109. 
 
 Seymour v. Van Wyck, 103. 
 
 " V. Butler, 378, 391, 407, 410. 
 
 Sharp V. Pratt, 341. 
 
 Sheldon v. Wright, 35, 201, 309, 310, 
 312. ->')). 
 
 Sheldon v. Bliss, 253, 255. 
 SheUy's case, 270. 
 Sherman v. Ballon, 447, 454. 
 Shewen v. Vanderhorst, 317. 
 Shirt V. Westby, 382. 
 Shirley v. Shirley, 387. 
 SchoU V. SchoU, 352. 
 Shook V. Shook, 136, 139, 212. 
 Shultz V. Pulver, 42, 182. 
 Shumway v. Cooper, 190, 191. 
 .Sibley v. Cook, 354. 
 
 " V. Percy, 350, 351. 
 
 " V. Wapple, 309. 
 
TABLE OP CASES. 
 
 XX 111 
 
 Skeffington v. "White, 199. 
 Skidmore v. Eomaine, 317. 
 Small V. Small, 92. 
 Smith V. Gary, 50. 
 
 " V. Cunningham, 123. 
 
 " V. Kearney, 368. 
 
 " V. La-wrence, 288. 
 
 " V. Smith, 374. 
 
 " V. Van Keuren, 416. 
 
 " V. Wait, 123. 
 Snyder v, Snyder, 94. 
 Stagg V. Jackson, 342, 345, 419, 420. 
 
 " v. Beekman, 36. 
 
 " v. Punter, 270. 
 Southmead, in the goods of, 207. 
 Stanton v. Wetherwax, 66. 
 Sparrow T. Hardoastle, 131. 
 Spear v. Pinkham, 388. 
 Stewart's Bx'r v. Lispenard, 67, 68, 
 
 73, 87, 182. , 
 Stockdale v. Bushby, 376. 
 Stone V. Damont, 89. 
 
 " V. Morgan, 413, 421. 
 Strathmore v. Bowes, 134. 
 Strong V. Wilkins, 67. 
 Sweezey v. WiUis, 195, 196. 
 
 T 
 
 Taylor v. Bryden, 279. 
 
 " V. Delancy, 218, 219. 
 
 " V. Morris, 341. 
 
 " V. Wendel, 289. 
 
 Texador, matter of, 210. 
 
 Thomas t. Cameron, 147. 
 
 " V. Stevens, 376. 
 
 Thompson, ex parte, 167. 
 
 " V.Thompson, 263, 364,413. 
 
 Thelusson v. Smith, 276. 
 Thorold v. Thorold, 231. 
 Thyne v. Stanhope, 123. 
 Tifft V. Porter, 349, 391. 
 Tilford V. Morrison, 247. 
 Tole V. Hardy, 377, 379, 380, 392. 
 Tonnele v. Hall, 99. 
 Tourton v. Hower, 163. 
 Treat v. Fortune, 199, 318, 368, 430. 
 Trevelyan v. Trevelyan, 125. 
 Tucker v. Phelps, 166. 
 
 " V. Westgarth, 208. 
 Tummalty v. Tummalty, 193. 
 Tunison v. Tunison, 103. 
 
 u 
 
 Utterton v. Robins, 133. 
 " V. Mairs, 135. 
 
 United States v. Fisher, 275. 
 " " V. Hoe, 276. 
 
 " V. Howland, 276. 
 " " V. State Bank of N. C. 
 
 276. 
 
 Van Alst v. Hunter, 68, 85. 
 Van Bramer v. Hoffman, 390. 
 Vanderheyden v. Reid, 26, 28, 46. 
 Vanderpoel v. Van Valkenburgh, 61, 
 
 146, 226, 228. 
 Van Cortland v. Kip, 132, 133. 
 Van Kleek v. The Reformed Dutch 
 
 Church, 394. 
 Van Orden v. Van Orden, 363. 
 Van Ornam v. Phihps, 282. 
 Van Vechten v. Van Vechten, 373. 
 Van Vleek v. Burroughs, 46, 299. 
 Van Wert v. Benedict, 95. 
 Van Wyok v. Seward, 401. 
 Van Wyck, matter of, 341, 463. 
 Vaux v. Henderson, 376. 
 Vermilyea v. Beaty, 141, 142. 
 Vreedenburg v. Calf, 49. 
 
 w 
 
 Wadham v. Am. Home Miss. Society, 
 
 93, 228. 
 Wait V. Wait, 194, 399. 
 Walker v. Woolaston, 219. 
 
 " V. Witter, 279. 
 
 " V. Schuyler, 468. 
 Watts V. The Public Administr'r, 104. 
 Walsh V. Ryan, 171. 
 Walton V. Walton, 130, 349, 351, 353, 
 
 401. 
 Warwick v. Greville, 198. 
 Waters v. CuUen, 82, 95. 
 Watkins, matter of, 31, 470. 
 Waterman v. Whitney, 121. 
 Watkins v. Cheek, 357. 
 Webster v. Webster, 394. 
 Weir V. Fitzgerald, 86. 
 WetdriU v. Wright, 208. 
 Wever v. Marvin, 142. 
 Weston V. Weston, 148. 
 West V. Wilby, 215. 
 
 " V. Moore, 373. 
 Western v. Romaine, 42, 184, 340, 
 
 442. 
 Weed V. EUis, 451. 
 Westervelt v. Gregg, 43, 94, 413, 416, 
 
 421, 428. 
 Whitmore v. Foose, 295, 297. 
 
XXIV 
 
 TABLE OP CASES. 
 
 White V. WHte, 80, 91. 
 " V. BuUock, 429. 
 " V. Parker, 449. 
 " V. Storey, 468. 
 WHttaker, Matter of, 446. 
 Whitbeck v. Patterson, 101, 103, 233. 
 ■Williamson v. Williamson, 52, 381, 
 
 390. 
 Williamson v. Driver, 75. 
 Williams v. Groude, 92. 
 " V. Walker, 198. 
 V. Pitch, 233. 
 In the goods of, 246. 
 " v. Purdy, 318, 368, 428, 430. 
 " V. Attleborough, 327. 
 V. Crary, 365. 
 
 Williams v. Williams, 369. 
 WUson V. Baptist Society, 35. 
 
 " V. Moran, 115. 
 
 " V. Wason, 338. 
 Wilcox V. Smith, 295, 317, 417, 428, 
 
 429, 430, 433. 
 Wilkes V. Harper, 298. 
 Willoughby v. McCluer, 247. 
 Witter V. Mott, 133. 
 Wiokwire v. Chapman, 156, 218. 
 Wffls V. Eioh, 219. 
 Winne v. Van Sohaick, 286.' 
 Wood V. Vandenburgh, 382. 
 
 " V. Wood, 136, 364. 
 Woodruff T. Cox, 239. 
 Wolfe V. Van Nostrand, -369. 
 
 ERRATA. 
 
 Page 72, line 26, for " injunction," read mqumtion. 
 « 107, " 2, after " Sutherford," add (1 Bmio, 33.) 
 " 118, " 13, for " 1853," read 1813. 
 " 179, « 13, dele "that." 
 •" 224, " 6, for "form," read /oras. 
 
LA¥ OE EXECIJTOES. 
 
 PART I. 
 
 OP THE COURT HAVING ORIGINAL JURISDICTION IN THE STATE OF NEW 
 YORK, IN MATTERS TESTAMENTARY, AND OF INTESTACY. 
 
 Section I. 
 
 Of the Courts having jurisdiction to administer the estates of 
 deceased persons, under the Colony and at the close of the 
 Revolution. 
 
 BEFORE the American Revolution, the jurisdiction of wills 
 and intestacies belonged, in the colony of New York, to the 
 prerogative court, of which the governor for the time being was 
 ex oflBcio the judge. Though the extent and limitations of this 
 authority are not very accurately known, and are supposed never 
 tOihave been defined or regulated by any statute, yet in the pro- 
 ceedings of this as well as other courts, the practice of the corres- 
 ponding English tribunals was imitated, and their customs and 
 forms generally adopted. (Smith's History N. Y. 383, 389. 
 Vanderheyden v. Beid, 1 Hopkins, 410, 411. Revisers' Notes, 
 3 R. S. 2d ed. 679.) The jurisdiction itself was declared by an 
 act of the colonial government of the 11th November, 1692, to be 
 4 
 
26 JUBISDIOTION. 
 
 vested in the governor, or in such persons as he should delegate 
 under the seal of the prerogative court, {Bradford's Col. Laws, 16.) 
 It was ordinarily exercised, during the period of the colony, by a 
 delegate appointed by the governor, under the seal of the prerog- 
 ative office. {Smith's History N. Y. 383. 1 R. L. 1813, p. 454, 
 
 note.) 
 
 The common law of England was generally received as binding 
 on the colony, together with such statutes as were enacted before 
 it had a legislature of its own; but the courts exercised a sove- 
 reign authority in determining what part of the common law and 
 statute law should be extended, and what should be rejected as 
 inapplicable to their circumstances and condition. {Smith's His- 
 tory N. Y. 372.) 
 
 The first constitution of this state, adopted in 1777, expressly 
 recognized the court of probates as a subsisting tribunal, and 
 directed that the clerk of that court should be appointed by the 
 judge thereof. {Const, of 1777, § 27.) By other provisions of 
 that instrument the judge of the court of probates was appointed 
 by, and held his office during the pleasure of the council of appoint- 
 ment. The act to organize the government, under the constitution, 
 did not pass until the 16th March, 1778. (1 Greenl. 17.) By 
 that act it was, amongst other things, enacted, that the judge of 
 the court of probate should be vested with all and singular the 
 powers and authorities, and have the like jurisdiction in testamen- 
 * tary matters, which, while this state, as the colony of New York, 
 was subject to the crown of Great Britain, the governor or com- 
 mander in chief of the colony, for the time being, had and exer- 
 cised, as judge of the prerogative court, or court of probates of 
 the said colony, except as to the nomination and appointment of 
 surrogates of the several counties, who were required to be ap- 
 pointed by the council of appointment, and commissioners under the 
 great seal. By the act of 1784, (1 Greenl. 149,) instituting the 
 court for the trial of impeachments and the correction of errors, 
 an appeal was given to that court from the court of probates in 
 like manner as from the court of chancery. 
 
 The act of 1778, before cited, directed all letters of administra- 
 tion to be granted by the judge of probates, and all citations and 
 other processes issuing out of the same court, to run in the name 
 
JURISDIOTION. ■ 27 
 
 of the people of this state, and be tested in the name of the judge 
 of the said court. 
 
 The constitution of 1Y77 further provided that such parts of 
 the common law of England and the statute law of England and 
 Great Britain, and of the acts of the legislature of the colony of 
 New York, as together did form the law of the said colony on the 
 19th day of April, 1775, should be and continue the law of this 
 statCj subject to such alterations and provisions as the legislature 
 of the state should from time to time make, concerning the same. 
 It excepted such parts of the common law and statutes as might 
 be construed to establish or maintain any particular denomination 
 of christians or their ministers, or concerned allegiance formerly 
 yielded to the king of Great Britain, Or as were repugnant to that 
 constitution. 
 
 This feature of the constitution was not introductory of any new 
 principle, but was declaratory of the doctrine contended for by the 
 colonists, that the common law, so far as applicable to their cir- 
 cumstances, was their birthright. The principle has been repeated 
 both in the constitution of 1822 and 1846i It is merely a repe- 
 tition of the great truth, that on the settlement of a new territory 
 by a colony from another country, especially when, as in this case, 
 the colonists continue subject to the same government, they carry 
 with them the general laws of the mother country, which are ap- 
 plicable to the situation of the colonists of the new territory; 
 which laws thus become the laws of the colony until they are 
 altered by common consent, or by legislative enactment. {Bogar- 
 dus V. Trinity Churchy 4 Paige, 198. Commonwealth v. Leach, 
 1 Mass. R. 60. Canal Commissioners v. The People, 5 Wend. 
 445. Commonwealth v. Knowlton, 2 Mass. 534.) 
 
 Although the act of 1778, recognized the office of surrogate, 
 yet it does not appear that that court was organized under the 
 constitution, until the year 1787. It is probable that the duties 
 were performed either by the judge of the court of probates or by 
 surrogates, during the intervening time, under the colonial laws, 
 repealed by the 19th section of the act of 1787. 
 
 On the 20th of February, 1787, an act was passed, entitled an 
 act for settling intestates' estates, proving wills and granting ad- 
 ministrations. (1 Greenl 363.) It was the statute of distribu 
 
28 JtmiSDICTIOF. 
 
 tione of that day. The 6th section provided for the appointment 
 by the governor and council, of surrogates for the several counties 
 of the state, and conferred upon such surrogates, power to take the 
 proof of wills, testaments and codicils, of all persons dying in the 
 several counties, for which such surrogates should be respectively 
 appointed, to make and issue probate thereof, and to grant letters 
 testamentary thereon, and to grant administration, with the will 
 annexed, and in cases of intestacy. They were also authorized to 
 record wills proved before them, with the proof thereof, and all 
 letters testamentary and of administration, by them issued and 
 granted, in books to be provided at their own expense; which 
 records were declared to be of the same force and effect, as the like 
 records in the office of the judge of the court of probates. They 
 were also required to cause a seal of office to be made at their own 
 expense, with a suitable device thereon. 
 
 It is said by Chancellor Sanford, in Vanderheyden v. Reid, 
 1 Hopkins, 411,) that the records of the prerogative court of the 
 colony cannot now be found. We can, therefore, only learn by 
 tradition and by inference from subsequent statutes the mode of 
 procedure in that court. The 20th section of the act of 1787, 
 (1 Greenl. 368,) throws some light on this subject. By that sec- 
 tion it was enacted that the courts of the said surrogates, and the 
 court of probates, in the matters submitted to their cognizance 
 respectively, by that act, should proceed according to the course of 
 the courts having by the common law, jurisdiction of the like 
 matters, provided that the same should not be construed to extend 
 to the inflicting any ecclesiastical pains or penalties whatsoever. 
 
 The matters fubmitted to the consideration of the courts, by 
 that act, were in relation to testamentary matters and matters of 
 intestacy, and of the description of cases which at common law 
 were administered by the ecclesiastical courts. It is probable that 
 the business was very loosely conducted by some of these courts. 
 In the preamble to the act of 1792, concerning administrations and 
 escheats, (2 Greenl. 420,) it is recited that administrations had 
 been frequently granted in this state, upon the mere suggestion 
 of the party applying for the same, without due proof of the death 
 of the person upon whose estate they were granted; and it had 
 happened that administrations had been granted upon estates of 
 
JTJEISDIOTION. 29 
 
 persons who were the^j living and residing within this state, and 
 administrations were frequently granted to persons in no wise 
 related to the intestate, and who procured administrations only 
 with a view of appropriating the estates of the intestate to their 
 own use, from which practices great inconveniences were likely to 
 ensue, for remedy whereof it was enacted that no letters of admin- 
 istration should thereafter be granted by the judge of probates or 
 by any surrogate, upon the estate, goods, chattels or credits of any 
 person, represented as having died intestate, until due proof be 
 made before the said judge or surrogate, to his satisfaction, that 
 such person was dead, and died intestate. The statute also pro- 
 vided that on the application for letters of administration upon the 
 estate of an intestate, by a person not entitled to the same as next 
 of kin, the judge or surrogate should issue a citation to the next 
 of kin, before granting such letters, summoning them to appear 
 and show cause why the same should not be granted. The statute 
 contains other provisions for causing notice to be given in case of 
 the non-residence of the next of kin, or in case there are no such, 
 but as they are superseded by the existing provisions, which will 
 be noticed in their proper place, it is unnecessary to mention them. 
 
 Section II. 
 
 Of the Courts having jurisdiction to administer the estates of 
 ■ deceased persons, from the close of the revolution to the aboli- 
 tion of the Court of Probates, in 1823. 
 
 During the period embraced in the preceding section, the juris- 
 diction of the court of probates and of surrogates, seems to have been 
 confined solely to testamentary matters and matters of intestacy. 
 By the act of 1787, (1 Greenl. 367,) the judge of the court of 
 probate was empowered to call administrators to account for and 
 touching the estates of any person dying intestate, and to decree 
 distribution, and to compel such administrators to observe and pay 
 the same. He was also authorized to hear and determine all 
 causes touching any legacy or bequest in any last will and testa- 
 ment payable out of the personal estate of the testator, and to 
 decree and compel payment thereof, with a right of appeal to the 
 party aggrieved. But this jurisdiction was not conferred upon 
 
30 JUEISDIOTIOlir. 
 
 Burrogatesuntil the law of 27th March, 1801. (1 K. ^ R. 320. 1 V. 
 N. Sf W. 448, § 11.) The same statute also gave an appeal from 
 the decree of the surrogate to the judge of the court of probate, 
 provided such appeal was entered within fifteen days next after 
 the sentence, decree or order appealed from. It was doubtless 
 found to be oppressive to require parties to attend the settlement 
 of estates at the seat of government, from remote parts of the 
 state. 
 
 By the act of 27th March, 1801, (1 K. ^ R. 323,) the execu- 
 tor or administrator, whose testator or intestate should have died 
 seized of any real estate, on discovering that the personal estate 
 of such testator or intestate was insufficient to pay his debts, was 
 authorized to apply to the court of probates or the surrogate of 
 the county in which probate or administration was granted, for 
 authority to sell so much thereof as should be necessary to pay his 
 debts. This statute conferred a jurisdiction upon these courts un- 
 known to the common law. Nor was it, as originally framed, ac- 
 companied with necessary safeguards against abuses. It did not 
 limit the time within which the application could be made. Hence, 
 when stale and dormant demands were awakened into life, in order 
 to reach the real estate of the deceased by an unscrupulous per- 
 sonal representatives, a resort was had to the court of chancery for 
 relief. {Moers V. White, 6 Jolm. Ch. 360.) The evils to which 
 it led it will be seen in the next section, have been remedied by 
 our existing legislation on the subject. As a security against 
 fraud or collusion, the revised law of 1813, (1 R. L. 451, § 24,) 
 required that one or more discreet freeholders should be appointed 
 by the surrogate to unite with the executors or administrators in 
 the conveyance on sales by order of the court. This proved to be 
 a useless requirement, and was repealed in 1819. {Laws o/"1819, 
 p. 215, § 4.) 
 
 Another subject of jurisdiction was added to the surrogate by 
 the act of April 5, 1802; (3 Wehstar, 158; 1 R. L. of 1813, 
 p. 454 ;) the allowance and appointment of guardians for infants. 
 It has been supposed by elementary writers that the ecclesiastical 
 courts had a right to appoint a guardian to the personal estate of 
 the infant; {Swinburne, '210. Reeve^s Dom. R.BVJ.) In Buck 
 
JURISDICTION. 31 
 
 V. Draper, (3 Atk. 631,) Lo|d Hardwicke expressed his surprise 
 that ecclesiastical courts in the country should take upon them 
 to appoint guardians ex officio, without any suit instituted for that 
 purpose, and by that means break in upon the jurisdiction of the 
 court of chancery with regard to the guardianship of infants. The 
 jurisdiction thus conferred by the act of 1802 did not extend to 
 the judge of the court of probates ; nor did it confer on the surro- 
 gate any jurisdiction over the guardian as a trustee ; or power to 
 remove him, or call him to account. The chancellor exercised that 
 authority by his common law powers. {Ex parte Crumb, 2 John. 
 Ch. R. 439.) 
 
 By the act of April 7, 1806, (1 R. L. of 1813, p. 60,) the sur- 
 rogate was authorized in certain cases to appoint commissioners 
 for the assignment of dower to the widow. The act made no pro- 
 vision for trying, before the surrogate, the title to dower, and the 
 admeasurement was held not to affect or prejudice the right to 
 dower, or the legal or equitable bar to it. {Matter of Watkins, 
 9 John. 245. Larkin v. Randall, 5 Cowen, 168.) 
 
 Under the foregoing statutes it was no doubt well held by the 
 courts that the surrogate's court was a court of inferior and lim- 
 ited jurisdiction, and a creature of the statute ; and, therefore, 
 that those claiming under its decrees must show affirmatively that 
 the surrogate had authority to make the decree, and that the facts 
 upon which he acted gave him jurisdiction of the subject matter, 
 and of the persons before him. {Dakin v. Hudson, 6 Cowen, 
 221. Bloom V. Burdick, 1 Hill, 130. Corwin v. Merritt, 3 
 Barb. iS. C. R. 341.) In one of the foregoing cases the question 
 was one of pleading, and in the others the objection arose under 
 proceedings for the sale of real estate by order of the surrogate 
 under the act of 1813. The rule is the same with respect to all 
 courts; their judgments in cases where they have no jurisdiction 
 are void, with only this difference, that the jurisdiction of a supe- 
 rior court will be presumed until the contrary appears : whereas 
 an inferior court and those claiming under its authority, must 
 show that it had jurisdiction. {Per Branson, J., 1 Hill 139. Foot 
 V. Stevens, 17 Wend. 483.) 
 
32 JUEISDIOTIOF. 
 
 Section 
 
 Al. 
 
 Of the Courts having jurisdiction to administer the estates of 
 deceased persons since the abolition of the court of probates in 
 1823, and as they exist at the present time. 
 
 The constitution which was framed in 1821 and took effect fully 
 on the 1st January, 1823, was the commencement of great and 
 salutary reforms in the jurisprudence of this state. It made no 
 special provision, however, for the continuance of the court of pro- 
 bates, or of surrogates' courts, or of any tribunal having jurisdiction 
 over the estates of deceased persons. Like the constitution of 1777, 
 in this respect, it left these matters to the discretion of the legisla- 
 ture. That body accordingly on the 21st March, 1823, {Laws of 
 1823, p. 62, ch. 70,) by act of that date abolished the court of 
 probates, and directed that its records should be deposited and safely 
 kept in the office of the secretary of state. It directed that the 
 jurisdiction of the court of probate, thus abolished, should be vested 
 in the surrogate of any county wherein the personal property of 
 the deceased, or any part thereof, might be at the time of his 
 death ; and that he should proceed in the manner and according 
 to the powers theretofore used and exercised by the judge of the 
 court of probates. It required the surrogate to transmit a certified 
 copy of the will so proved before him and the probate thereof, or 
 of the letters of administration so granted, to the secretary of this 
 state, to be by him filed and safely kept in his office. It gave an 
 appeal from the decision of the surrogate to the chancellor, and 
 transferred to that officer all appeals then pending in the court of 
 probates. And it provided that surrogates should thereafter be 
 appointed in the manner prescribed by the constitution for the ap- 
 pointment of judicial officers, and should hold their offices for four 
 years, unless sooner removed by the senate on the recommenda- 
 tion of the person administering the government of this state. The 
 office of surrogate thenceforth became an important one, and the 
 court held by him the only court of original jurisdiction in matters 
 testamentary and of intestacy. Its jurisdiction was general as 
 well as local. It was entitled to the same presumptions in its 
 favor that the supreme court extended to the courts of common 
 pleas, in Foot v. Stevens, (17 Wend. 483.) 
 
JURISDIOTIOK 88 
 
 Notwithstanding surrogates were required by the laws to which 
 reference has been made, to record in proper books, all wills proved 
 before them, letters testamentary and letters of administration and 
 of guardianship, and all orders and decrees, it was found, as late as 
 m 1828, that this duty had been in some counties in a great meas- 
 ure neglected. ^ To remedy this inconvenience as far as practicable, 
 the legislature in that year enacted that it should be the duty of 
 the surrogate of each county in this state, to record in books to be 
 provided for that purpose, all orders and decrees made by any of 
 his predecessors, relating to the sale of real estate, the original of 
 which, signed by the surrogate granting the same, or copies thereof 
 duly authenticated, should be in his office and not recorded ; and 
 all letters testamentary and of administration, and all appointments 
 of guardians made by any such predecessor in the said office, -which 
 were not already recorded. He was also required to cause the 
 books, in which such proceedings were recorded, to be bound in a 
 plain and substantial manner, to be correctly paged and indexed, 
 the expense of which was to be audited and allowed by the super- 
 visors of the county. {Laws of 1828, p. 136.) 
 
 It is not deemed necessary to notice the other acts of the legis- 
 lature in relation to surrogates' courts between the year 1823 and 
 the adoption of the revised statutes in 1830. All the statutes then 
 in force on the subject were revised and consolidated,' with such im- 
 provements as experience had suggested. The system then inaugU' 
 rated remains as the basis upon which the subsequent alterations and 
 amendments have been built. The office of surrogate now rests 
 upon the provisions of the constitution of 1846, the revised stat- 
 utes, and the subsequent enactments on the same subject. It is 
 proposed in the remainder of this section to treat of the surrogate's 
 court ujider the existing constitution and laws. 
 
 And first, it is to be observed, that the office itself was abolished 
 as then existing, except in the city and county of New York, where 
 it was to remain till otherwise ordered by the legislature. The 
 constitution provides for the election of a county judge, who should 
 hold the county court and perform the duties of the office of sur- 
 rogate. It also empowered the legislature to provide for the elec- 
 tion of a separate officer to perform the duties of the office of 
 5 
 
34 JUEISDIOTION. 
 
 surrogates, in counties having a population exceeding forty thou- 
 sand. {Const, of 1846, art. 6, § 14.) In the statute relative to 
 that subject, the officer directed to be elected to perform the duties 
 of the office of surrogate, was denominated " Surrogate " of their 
 respective counties. {Laws of 1847, p. 308, § 14.) In the act of 
 1853, {p. 1228,) it is provided that in those counties in which the 
 county judge is also surrogate, he may be named and designated 
 simply as surrogate, without any addition referring to his office 
 as county judge ; and in those counties where the surrogate is a 
 distinct officer, the county judge or other officer, when acting as 
 surrogate, shall be designated by his official title, with the addition 
 of the words, " and acting as surrogate." 
 
 By the thirty-seventh section of the judiciary act of 1847, {Laws 
 of 1847, p. 333,) it was provided that the county judge or other 
 officer elected to perform the duties of the office of surrogate, and 
 the local officers elected to discharge the duties of county judge 
 and surrogate, when acting as surrogate, should possess the same 
 powers and perform all the duties, and exercise the same jurisdic- 
 tion as were then possessed, performed and exercised by the sur- 
 rogates of their respective counties, so far as should be consistent 
 with the constitution, and the provisions of that act. And all 
 laws relating to the jurisdiction, powers and duties of surrogates 
 and surrogates' courts, and their proceedings, were declared to be 
 applicable to said judge or other officer, while performing the 
 duties of the office of surrogate, so far as the same could be so 
 applied, and were consistent with the constitution, and the provisT 
 ions of that act. 
 
 The office of surrogate was duly organized under the present 
 constitution, in the city and county of New York, and in the sev- 
 eral other counties of the state. It is not depmed material in this 
 connection, to notice the special legislation on this subject, as to 
 particular counties. We are treating now of the general jurist 
 diction of the court. 
 
 Although the surrogate's court is now a court of general juris- 
 diction, and the only court of original jurisdiction in matters tes- 
 tamentary and of intestacy, and although it possesses a seal and 
 is required to keep a record of its proceedings, it has not been 
 treated by the courts as a court of record, in the common law sense 
 
JtlRISDIOTION. 35 
 
 of that term. Hence it is not a court in which the proceedings 
 for the naturalization of aliens, under the act of congress, can be 
 conducted. The act of congress calls for a court of record, having 
 common law jurisdiction, a seal and a clerk or prothonotary. 
 (3 U. S. L. 477, § 3 of the act of April 14, 1802.) The statutes 
 of this state nowhere describe it as a court of record. On the 
 contrary, the revised statutes denominate it a court of peculiar 
 and special jurisdiction, and describe its jurisdiction in the same 
 chapter, with other courts, which are confessedly not of record. 
 (2 R. S. 220.) The same section which defines the powers of the 
 court, directs that they shall be exercised in the cases and in the 
 manner prescribed by the statutes of this state, and in no other ; 
 and no surrogate shall, under pretext of incidental power or con- 
 structive authority, exercise any jurisdiction whatever, not ex- 
 pressly given by some statute of this state. (2 R. iS. 221, § 1.) 
 It was quite obvious that before the adoption of the revised statutes, 
 and afterwards, until the repeal of the above restriction, the court 
 could only be treated as a court of limited statutory jurisdiction. 
 {^Dakin v. Hudson, 6 Cowen, 221. The People v. Barnes, 12 
 Wend. 492. Cwwin v. Merritt, 3 Barb. S. C. R. 341. Wil- 
 son v. Baptist Ed. Society, 10 Barb. 308. Seaman v. Duryea, 
 Id. 523 ; S. C. on appeal, 1 Kernan, 324. Bloom v. Burdick, 
 1 mil, 134. Sheldon v. Wright, 1 Seld. 511, per Foote, J.) 
 The restrictive clause, above mentioned, created much embarrass- 
 ment in the administration of justice by the court. Doubts were 
 entertained whether it was competent for the surrogate to adjourn 
 from day to day, or to administer an oath to a witness, in any matter 
 depending before him ; or to issue subpoenas for witnesses out of 
 his county. These, and a variety of other doubts, led to repeated 
 applications to the legislature for an amendment of the law. The 
 subject was referred to the attorney general, and by him a report 
 was made to the legislature, accompanied by a bill, which as 
 amended, was adopted in 1837. {Laws of 1837, ch. 460, p. 524, 
 et seq.) This law, amongst other things, repealed the restriction 
 as to the surrogate's jurisdiction, contained in the revised statutes, 
 and above printed in italics, and introduced various other changes 
 in relation to the duties of the office. 
 
 The surrogate is a local officer, (1 R. S. 101, § 11,) and can hold 
 
gg JURISDICTION. 
 
 his court only within the limits of his county. His general juris- 
 diction, by the existing statutes, is : 
 
 "1st. To take the proof of wills of real and personal 'estate, in 
 the cases prescribed by law ; and also to take the proof of any 
 will relating to real estate situated within the county of such sur- 
 rogatCj when the testator in such will shall have died out of the 
 state, not being an inhabitant thereof, and not having any assets 
 therein ; 
 
 " 2d. To grant letters testamentary, and of administration ; 
 
 " 3d. To direct and control the conduct, and settle the accounts 
 of executors and administrators ; 
 
 "4th. To enforce the payment of debts and legacies, and the 
 distribution of the estates of intestates ; 
 
 " 5th. To order the sale and disposition of real estates of de- 
 ceased persons ; 
 
 " 6th. To administer justice in all matters relating to the affairs 
 of deceased persons, according to the provisions of the statutes of 
 this state ; 
 
 " 7th. To appoint guardians for minors, to remove them, to di- 
 rect and control their conduct, and to settle their accounts, as pre- 
 scribed by law ; 
 
 " 8th. To cause the admeasurement of dower to widows ; which 
 powers shall be exercised in the cases, and in the manner pre- 
 scribed by the statutes of the state." (2 R. S. 220, as amended 
 iy the *llst section of the act of 1837, p. 536.) 
 
 The foregoing specification of powers does not comprise a juris- 
 diction over express trusts, but leaves them to be executed aa 
 formerly, by a court having jurisdiction in equity. In one sense 
 every executor is a trustee for the legatees and next of kin. Over 
 the ordinary cases of such trusts jurisdiction is conferred by the 
 foregoing statute. But there are other trusts not there provided 
 for. The revised statutes ousted the surrogate of jurisdiction over 
 the accounts of executors when the latter were liable to account to 
 a court of equity, by reason of any trust, expressly created by any 
 last will and testament. (2 R. S^ 94, § 66.) The act of April 10, 
 1850, provided for this class of cases. {Laws of 1850, p. 587.) 
 It allows any trustee created by any last will and testament, or 
 appointed by any competent authority to execute any trust created 
 
JURISDICTION. 87 
 
 by any last will and testament, or any executor or administrator 
 ■with the -will annexed, authorized to execute any such trust, from 
 time to time, to render and finally settle his accounts before the 
 surrogate of the county in which such last will and testament was 
 proved, in the manner provided by law for the final settlement of 
 the accounts of executors and administrators, and for that purpose 
 to obtain and serve in the same manner, the necessary citations 
 requiring all persons interested to attend such final settlement, 
 and allows the decree of the surrogate on such final settlement to 
 be appealed from in the manner provided for an appeal from a dc 
 cree of a surrogate on the final settlement of the accounts of an 
 executor or administrator, and the like proceedings to be had on 
 such appeal. It declares further, that the final decree of the sur- 
 rogate on the final settlement of an account thus provided for, or 
 the final determination, decree or judgment of the appellate tribu- 
 nal, in case of an appeal. Shall have the same force and effect as 
 the decree or judgment of any other court of competent jurisdic- 
 tion, on the final settlement of such accounts, and of the matters 
 relating to such trust, which shall have been embraced in such 
 accounts, or litigated or determined on such settlement thereof. 
 This is an important enlargement of the jurisdiction of the surro* 
 gate, but it does not supersede the cognizance of the same matter 
 by courts having jurisdiction in equity. The jurisdiction of the 
 two courts is in this respect concurrent. {Glover v. Holley, 
 2 Brad. iSur. Rep. 291.) 
 
 It cannot escape observation that most of the amendments which 
 have been made to the law in relation to the jurisdiction of surro- 
 gates' courts during the last half century have been designed to 
 enlarge and confirm that jurisdiction. Thus, for years after author- 
 ity was given to the surrogate to make order for the sale of the 
 real estate of a testator or intestate for the payment of debts, the 
 courts held the party deriving a title under such rule, in a contro- 
 versy with the heirs, bound to show the regularity of the proceed- 
 ings. We have seen that the legislature at some times was ap- 
 plied to for relief. It was quite reasonable that a statute authority 
 by which one may be deprived of his estates, should be strictly pur- 
 sued. {Bloom v. Burdick, 1 Hill, 131. Corwin v. Merritt-, 3 Barb. 
 S. C. R. 341.) But the reasons on which the earlier cases were 
 
38 JUEISDIOTION. 
 
 decided, must yield to the enlarged jurisdiction of the court, and the 
 greater intelligence by which its business is conducted. The legis- 
 lature has felt the force of these considerations, and has by the law 
 of 1850, {L, of 1850, p. 117,) given to the sales of real estate made 
 by order of the surrogate, under the provisions of our statutes, the 
 same force and effect as if made by order of a court having original 
 general jurisdiction. As a legitimate deduction from this principle, 
 it is further declared that the title of any purchaser at any such 
 sale made in good faith, shall not be impeached or invalidated, 
 by reason of any omission, error, defect or irregularity in the 
 proceedings before the surrogate, or by an allegation of want of 
 jurisdiction on, the part of the surrogate; except in the manner 
 and for the causes that the same could be impeached or invalidated, 
 in case such sale had been made pursuant to the order of a court 
 of original general jurisdiction. Sales of real estate made by 
 order of the surrogate stand upon ih.6 same footing as sales made 
 by order of the late court of chancery, or the present supreme 
 court. They are void in all cases if made without jurisdiction. 
 But the jurisdiction is now presumed in the surrogate's court as it 
 is in the supreme court, until the contrary appears. (See Bloom 
 V. Burdick, 1 Hill, 139.) 
 
 It is not improbable that the principles of pleading adopted by 
 the code of procedure in 1848, and which is still contained in that 
 act,. (Corfe 0/1848, § 138; Code of 1851, § 161,) would have ren- 
 dered the act of 1850 in a great measure superfluous. Although 
 the code does not profess to regulate the practice in surrogates' 
 courts, yet the section above referred to provides, that in pleading 
 a judgment or other determination of a court, or officer of special 
 jurisdiction, it shall not be necessary to state the facts conferring 
 jurisdiction ; but such judgment or determination may be stated 
 to have been duly made. If such allegation be controverted, the 
 party pleading is required to establish on the trial, the facts 
 conferring jurisdiction. Whether this be so or not, the act of 1850 
 was framed in the spirit of enlightened justice, and was a proper 
 supplement to the principles of the code. 
 
 "While the adt of 1850, chapter 82, above referred to, was not 
 intended to authorize the surrogate, or officer performing the duties 
 of that officcj lio make order for the sale of real property of a de- 
 
JUKISDIOTION. 39 
 
 ceased person, or to confirm any such sale, unless upon due exam- 
 ination he should be satisfied that the provisions of law had- been 
 complied with, it is quite clear that the object of the legislature 
 was to prevent sales, made in good faith, from being defeated in 
 collateral actions by technical omissions and defects, not affecting 
 the merits of the case. The omissions and defects pointed out in 
 the statute are such as would be corrected on motion, in a court 
 of general jurisdiction, or would be overlooked in a collateral 
 action. {Laws of 1850, p. 118, §§ 2, 3, 4.) None of them reach 
 to a want of jurisdiction of the person. Such objections would be 
 fatal in any court. {Bloom v. Burdick, 1 Hill, 130-140. Rea 
 V. McEachron, 13 Wend. 465. Atkins v. Kinnan, 20 id. 241. 
 Gilchrist v. Rea, 9 Paige, 66.) 
 
 By the law of 1813, (page 451, § 24,) sales of real estate made 
 by order of the cOurt of probate or surrogate were required to be 
 made by the executors or administrators applying for the same, 
 and such other discreet person or persons as the judge or surro- 
 gate should think proper to appoint, and the conveyance was re- 
 quired to set forth such order at large. During the time this law 
 was in force, however, it had been in numerous instances disre- 
 garded, and titles acquired in good faith, proved to be valueless. 
 To remedy this, the legislature, in 1819, {L. of 1819, p. 214.) after 
 repealing that provision for future cases, authorized the purchaser, 
 on or before 1st January, 1824, to apply to the chancellor for a 
 confirmation of such sale ; and the period within which the appli- 
 cation could be made was, in 1825, {L. o/'1825, p. 445.) extended 
 indefinitely, and made also to embrace the omission of the setting 
 out, in the conveyance, the order of sale. These provisions are 
 now a part of the revised statutes. (2 R. S. 116, §§ 61 to 65.) 
 They were followed by frequent applications to the court for the 
 relief contemplated by.them. {Matter of Hemiup, 2 Paige, 317. 
 3 id. 305. Rea v. McEachron, 13 Wend. 465. Gilchrist v. Rea, 
 9 Paige, 66. Bostwick v. Atkins, 3 Comst. 53.) The supreme 
 court now has the same jurisdiction in this respect, that was for- 
 merly vested in the court of chancery. 
 
 Note. The commissioners of pleading and practice, in their report to the legis- 
 lature in 1850, classed surrogates' courts under head of courts of record. (Report, 
 p. 14.) And in their learned note at pages 15 and 16, they show that on sound 
 
40 JURISDICTION. 
 
 principles it was already a court of record. This report was not adopted by th© 
 legislature, and the law as to surrogates was left unaltered. 
 
 Section IV. 
 Of the Officers of the Court. 
 
 It has already been stated that the surrogate is a local officer, 
 and that in the execution of the duties of his office, he is confined 
 to the county for which he was elected. (1 R. S. 101, § 11.) By 
 the present constitution of 1846, the county judge is, by the 14th 
 section of article 6, required to do the duties of the office of sur- 
 rogate, in all the counties but the city and county of New York. 
 In the several counties besides New York, having a population 
 exceeding forty thousand, the legislature is authorized to provide 
 for the election of a separate officer to perform the duties of the 
 office of surrogate. 
 
 The city and county of New York stands upon an independent 
 footing. The constitution provides that the surrogate of that city 
 and county should remain, until otherwise directed by the legis- 
 lature, {Art. 14, § 12.) The legislature, in 1847, made provision 
 for the election of surrogate in that city and county, and fixed the 
 term of his office for three years. By a subsequent act, the sur- 
 rogate is empowered to uppoint so many assistants, to aid him in 
 the performance of the duties of his office, as he should deem neces- 
 sary for that purpose, not exceeding the number which he shall, 
 from time to time, be authorized to appoint by the board of super- 
 visors of the said city and county, whose duty it is, from time to 
 time, to prescribe the number of assistants that may be so ap- 
 pointed, which number may at any time be increased or diminished, 
 by the said board. The board also fixes, and from time to time 
 changes, the salaries of such assistants ; but no such salary shall 
 exceed the rate of twelve hundred dollars a year. (L; of 1847, 
 p. 561, § 7.) These assistants have power, during the term of their 
 appointment, to administer and certify oaths and affirmations in 
 all cases in which said surrogate is authorized to administer the 
 same. (£,. of 1850, p. 384.) 
 
 In case a vacancy occurs in the office of surrogate of the city 
 and county of New York, the board of supervisor's of said city and 
 
JURISDICTION. 41 
 
 county, is authorized to fill up the same, until the general election 
 next ensuing the happening of such vacancy, when an election is 
 to be held to fill the unexpired term. (L. of 1847, p. 728, § 3.) 
 
 The surrogate of the county of Kings is authorized and required 
 to appoint one or more clerks, to assist him in his said office. A 
 certificate of their appointment is required to be filed in the office, 
 as evidence of their appointment ; and the clerks so appointed 
 have power to administer oaths, and perform such other duties as 
 are properly incident to the business of the office, not inconsistent 
 with the constitution and laws of the state. (L. of 1849, jo. 235.) 
 
 In the other counties of the state the duties of the office are 
 performed by the county judge, by a separate officer elected to 
 perform the duties of the office of surrogate, denominated, the 
 surrogate, (Z*. of 1847, p. 308,) or by local officers elected to dis- 
 charge the duties of county judge and surrogate. All laws relating 
 to the jurisdiction, powers and duties of surrogates and surrogates' 
 courts, and their proceedings, are made applicable to the officer act- 
 ing as surrogate, under the provisions of law, so far as the same 
 can be applied, and are consistent with the constitution and the 
 laws of the state. 
 
 There is no direct provision in any of our statutes, allowing or 
 permitting parties to appear in surrogates' courts by attorney or 
 counsel. The constitution provides that any male citizen, of the 
 age of twenty-one years, of good moral character, and who pos- 
 sesses the requisite qualifications of learning and ability, shall be 
 entitled to admission to practice in all the courts of this state. 
 ( Const, art. 6, § 8.) In carrying out this provision of the consti- 
 tution, the legislature, in 1847, enacted that every solicitor in chan- 
 cery, or attorney of the then supreme court, on the first Monday 
 of July, 1847, should be entitled to practice as attorney, solicitor 
 and counselor, in all the courts of this state. Attorneys in the 
 former court of common pleas were entitled to practice in the 
 county court of the same county ; and every male citizen there- 
 after admitted to the supreme court should be entitled to practice 
 as an attorney, solicitor and counselor, in all courts in this state, 
 until he should be suspended from such practice, by the supreme 
 court. {L. of 1847, p. 342, § 75.) It is doubted by a learned 
 6 
 
42 JURISDICTION. 
 
 author, {Daytoris Surrogate, p. 8,) whether these statutes make 
 attorneys officers of the surrogates' courts, in any other manner 
 than as they represent their clients in justices' courts. There is 
 no direct decision on the point. There is, however, a strong impli- 
 cation from other enactments, that parties in surrogates' courts 
 may have attorneys and counselors, in the sense in which those 
 terms are understood, with reference to courts of record. The 
 language of the constitution and the judiciary act is broad enough 
 to embrace them. The 4th section of the act of 1844, {L. of 1844, 
 p. 448,) forbids the son, partner, or clerk of any surrogate from 
 practicing before such surrogate as attorney, solicitor or counsel, 
 for any party to any proceeding before him. This provision is not 
 repealed, either by the constitution or any other statute. {See, 
 also, L. of 1847, p. 647, § 51.) 
 
 The fact that in the early legislation on the subject of costs, the 
 statute contained no fee bill applicable to the services of attorneys 
 in surrogates' courts, would give rise to the opinion that no such 
 officer as attorney was recognized as a member of the court. 
 Though costs were given in the ecclesiastical courts in England, to 
 the proctor and advocate in those courts, yet they were not usually 
 allowed, if at all, till after the commencement of the present cen- 
 tury. (Dea7i V. Russell, 3 Phill. 334. 1 Will. Ex. 310.) In 
 Reid V. Vanderheyden, (5 Cowen, 719,) it was assumed by the 
 members of the court of errors that the surrogate had no authority 
 to award costs ; and the chancellor, in Shultz v. Pulver, (3 Paige, 
 185,) says, that on examining the records of the late court of 
 probates, he finds that it had . been adjudged by that- court that it 
 had no power to allow costs. The revised statutes, however, pro- 
 vided for the allowance of costs in all cases of contests before the 
 surrogate, to be paid either by the party personally, or out of the 
 estate which is the subject of the controversy. (2 R. S. 223, § 10.) 
 As no special tariff of fees was prescribed in such cases, it was 
 usual to follow the fee bill of the court of chancery, as far as it 
 was applicable. ( Western v. Romaine, 1 Bradf. Surr. Rep. 37.) 
 At length, in 1837, it was enacted that in all cases where the sur- 
 rogate was authorized by law to award costs, he should tax them 
 at the same rate allowed for similar services in the courts of com- 
 mon pleas. {Laws of 1837, p. 536, § 70.) This section is still in 
 
JURISDIOTIOIT, 43 
 
 force, and it was held by the surrogate of New York, in Western 
 V. Eomaine, (supra,) that the common pleas fee bill, in force at 
 the time of passing the law of 1837, is still operative, so far as 
 relates to the costs in surrogates' courts. Since the revised 
 statutes and especially since the act of 1837, before cited, no 
 argument can be drawn against the existence of attorneys in sur- 
 rogates' courts, from the want of a fee bill, but there is now a 
 strong implication in their favor, arising from the provisions above 
 mentioned. The subject of costs in surrogates' courts, belongs, in 
 its other aspects, to a subsequent part of this treatise. 
 
 The statute requiring security for costs, in actions brought by 
 non-residents, and subjecting the plaintifif's attorney to such costs 
 to the extent of one hundred dollars, in case he brings a suit for a 
 non-resident without having given the security required by law, 
 has been held not to be applicable to surrogates' courts. (2 R. iS. 
 620, § 7. Westervelt v. Gregg, 1 Barb. Ch. R. 467.) 
 
 On general principles there is a propriety of recognizing the 
 existence of attorneys and counselors, as officers of the court 
 of the surrogate. The assistance of those officers in conducting 
 the business of the court, and especially in contested matters, is 
 often indispensable. The fact that they are so employed, when- 
 ever the occasion requires it, is undeniable. The tendency of the 
 judicial decisions of late has been towards the recognition of such 
 an officer. And though it has not been expressly decided that 
 such officers are members of the court, it may also be said, that 
 the contrary has not been affirmed. 
 
 With respect to the officers of the court by whom the process 
 of surrogates' courts can be served, it is expressly enacted that every 
 sheriff, jailer, coroner, or other executive officer, to whom any cita- 
 tion, subpoena, attachment or other process issued by a surrogate's 
 court, may be directed or delivered for the purpose of being exe- 
 cuted, shall execute the same in the same manner as if issued by 
 a court of record. (2 R. S. 228, § 9.) Such officer is, by the same 
 act, made subject to the same penalties, actions and proceedings, 
 for any neglect or misfeasance therein, as if the same had occurred 
 in relation to any process issued by courts of record. By the act 
 of 1837, (p. 635, § 66,) process of attachment or other compulsory 
 process authorized by law to enforce the orders, process ot decrees 
 
44 JtrEISDIOTION". 
 
 of suirrogates' courts, may be issued by the surrogate of one county 
 to the officers required by law to serve the same in any other 
 county of the state where it may be necessary to serve the same. 
 The officer receiving the same is authorized to arrest the person 
 against whom it is issued, and to convey him to the county and 
 place where the writ is returnable. Attachments and other com- 
 pulsory process issued by the surrogate are required to be made 
 returnable to the county from which they issue ; and a large por- 
 tion of the statute relative to proceedings upon contempt to en- 
 force civil remedies and to protect the rights of parties in civil ac- 
 tions, and ■«rhich were originally framed in aid of the jurisdiction 
 of courts of record, are made applicable to the attachments issued 
 by surrogates. (2 R. S. 536, §§ 10, 12, 13, 16 to 32.) 
 
 The indispensable necessity that the executive officers of the 
 county, should be officers of surrogate's courts, or at least be bound 
 to execute his lawful orders, will be manifest by adverting to the 
 power conferred on the surrogate, in the administration of his office. 
 These are, by the act, (2 R. S. 221, § 6, as amended by the act 
 of 1830, p. 394,) 1. To issue subpoenas, under his seal of office, 
 to compel the attendance of any witness residing or being in any 
 part of this state, or the production of any paper, material to any 
 inquiry pending in his court, the form of which shall be similar to 
 that used by courts of record in the like caSes. 2. To punish dis- 
 obedience to any such subpoena, and to punish witnesses for re- 
 fusing to testify after appearing, in the same manner and to the 
 same extent, as courts of record in similar cases, and by process 
 similar in form to that used by such courts. 3. To issue citations 
 to parties in all matters cognizable in his court, and in the cases 
 prescribed by law, to compel the appearance of such parties. 
 4. To enforce all lawful orders, process and decrees of his court, 
 by attachment against the persons of those who shall neglect 
 or refuse ' to comply with such orders and decrees, or to exe- 
 cute such process ; which attachinents shall be in form similar 
 to that used by the court of chancery in analogous cases. 5. To 
 exemplify under his seal of office, all transcripts of records, papers 
 or proceedings therein ; which shall be received in evidence in all 
 courts, with the like effect as the exemplifications of the records, 
 papers and proceedings of courts of record. 6. To preserve order 
 
JURISDlOTIOK 45 
 
 in his court during any judicial proceeding, by punishing con- 
 tempts which amount to an actual interruption of business, or to 
 an open direct contempt of his authority or person, in the same 
 mannei^ and to the same extent, as courts of record." 
 
 The consideration of these powers falls more appropriately 
 under a subsequent part of this treatise. The reference to them 
 in this connection is to show the propriety of considering the ex- 
 ecutive officers of the county as officers of this court. 
 
 In addition to the foregoing mode of obtaining the testimony of 
 witnesses, it is obvious that the jurisdiction would be defective and 
 imperfect if the testimony of an absent witness could not be ob- 
 tained when his personal attendance cannot be procured. The act 
 of 1837 has provided for this case. By the 77th section of that 
 act, {L. of 1837, p. 537,) the surrogate is authorized to issue a 
 commission to take such testimony in the same manner as by law 
 the same may be done in any court of record. This applies to any 
 proceedings or matters in controversy before the surrogate, when 
 the testimony of a witness in any other state or territory of the 
 United States, or any foreign place, is required by any party to 
 such proceedings or controversy. The practice of the supreme 
 court in analogous cases will be followed in taking out and execut- 
 ing such commission. It is regulated by statute. (2 R. S. 393, 
 et seq.) 
 
 Section V. 
 
 0/ Pleadings in Surrogates' Courts, and of Process. 
 
 There is no statute which in terms requires that the parties to a 
 controversy, in a surrogate's court, should present their claim or 
 defense, in the form of written pleadings. In a great majority of 
 the cases which in the country are submitted to the jurisdiction of 
 this court, no form of pleading Seems to be contemplated beyond 
 the petition and affidavit verifying the death of the testator or in- 
 testate, together with such description of his kindred as may be 
 necessary to inform the court as to the parties who are to be cited. 
 In this class of cases, when there is no controversy anticipated, 
 and the value of the estate to be administered is small, it is seldom 
 necessary to employ counsel in the first instance. The surrogate. 
 
46 JUEISDIOTION. 
 
 on the proper application, will administer the proper oath, issue 
 the proper process, and give the suitable directions for their 
 service. 
 
 But there is another class of cases, where the property left by 
 the deceased is large, and where adverse interests are represented, 
 when it may be important to know what questions are to be liti- 
 gated, and wherein the parties agree. For this class it is impor- 
 tant to know whether, by the practice of the court, any and what 
 pleadings are admissible. 
 
 After the abolition of the court of probates, appeals from surro- 
 gate's courts were taken to the court of chancery, and so continued 
 while the court remained, except in a few cases where it was taken 
 to the supreme court. We are therefore to look to the court of 
 fchancery for the rules which governed the practice of surrogates' 
 courts. In an early case before Chancellor Walworth, {Foster v. 
 WUber, 1 Paige, 540,) which came before him, on appeal to the 
 surrogate of Columbia, in an action citing executors to account, he 
 spoke of the proceedings as loose and irregular, because the pro- 
 moters of the suit, when called on for that purpose, failed to state 
 the grounds of their claim against the executors. On this subject 
 the chancellor observed that it was their duty, when called on for 
 that purpose, to file a written allegation or libel, propounding or 
 stating the substance of their claim against the defendants respect- 
 ively, and the nature and grounds thereof. If this allegation was 
 insufficient, and showed no grounds for proceedings against the 
 defendants, the court might be called upon to reject it ; or they 
 might take issue on the facts propounded ; or put in a counter 
 allegation in the nature of a plea in bar. Until some issue was 
 joined in the cause, neither party could be prepared to go into the 
 examination of testimony. [Approved by Parker, J., Van Vleek 
 V. Burroughs, 6 Barh. 344.) 
 
 The act of 1778, (1 Greenl. 18, § 3,) vesting in the court of 
 probate the powers, authority and jurisdiction in testamentary 
 matters formerly executed by the prerogative court of the colony, 
 is silent as to the nature of the pleadings to be used by the parties. 
 The chancellor, in Vanderheyden v. Reed, {Hopkins, 408,) while 
 admitting that the court of probates and prerogative court of the 
 colony were formed upon the model of the ecclesiastical courts of 
 
JUEISDIOTIOK 4T 
 
 England, as to the subject of their jurisdiction, held that they 
 were not bound to follow the practice of those courts. He thought 
 the court having the like jurisdiction, might exercise it by such 
 methods of proceeding as are usual and not forbidden by the stat- 
 utes and laws. Neither the constitution of 1822, or the present 
 constitution, prohibits a common law proceeding, in aid of those 
 courts, which are not required to proceed according to the course 
 of the common law. The chancellor thought, in that case, which 
 was an appeal from the deeree of a surrogate in the case of a con- 
 test as to the testamentary capacity of a testator, in which the 
 court of chancery occupied the place of the former court of pro- 
 bates, that his jurisdiction might be exercised by the usual course 
 of procedure of the court of chancery, and he accordingly ordered 
 a feigned issue to be tried by a jury. Though this case was 
 reversed by the court of errors, it was upon a point not affecting 
 its authority upon the above question. (5 Cowen, 719.) It is 
 certainly desirable that the pleadings in all courts where they are 
 admissible, should be governed by the same rules, and follow, as 
 far as practicable, the same forms. This is according to the spirit 
 of our modern legislation and the decisions of the courts. 
 
 The act of 1847 in relation to the judiciary, and which was in- 
 tended to confer jurisdiction and organization upon the courts, after 
 the adoption of the constitution of 1846, contains a clear implica- 
 tion that pleadings may be adopted in surrogates' courts. {Laws 
 oflSAI, p. 332, § 45.) It provides that issues of facts which should 
 be joined in any surrogate's court to be tried by a jury, should be 
 tried in the county court of the county in which the surrogate's 
 court is held. 
 
 A similar provision was contained in the revised statutes. In 
 case upon the hearing of an application for the sale of the real 
 estate of the deceased, any question of fact should arise, which in 
 the opinion of the surrogate could not be satisfactorily determined 
 without a trial by jury, the surrogate was authorized to award a 
 feigned issue, to be made up in such form as to present the ques- 
 tion in dispute, and to order the same to be tried at the next circuit 
 court to be held in the county. New trials were authorized to be 
 granted thereon by the supreme court, and the final determination 
 of the issue was made conclusive as to the facts therein controvert- 
 
48 JURISDICTION. 
 
 ed, in the proceedings before the surrogate. (2 R. S. 102, § 11.) 
 Whether the mode of trial by feigned issue is superseded by the 
 provisions of the act of 1847, § 45, or by the code of procedure, 
 § 72, it is not important in this connection to inquire. {In the 
 matter of Wm. Renwick, 2 Bradf Sur. Rep. 80.) 
 
 So also after the proof before the surrogate of any will of real or 
 personal estate, or of both, an appeal may be taken to the supreme 
 court, and if the decision of the surrogate is reversed upon a ques- 
 tion of fact, the supreme court is directed to award a feigned issue 
 to try the questions arising upon the application, and^direot the 
 same to be tried at the next circuit court, to be held in the county 
 where the surrogate's decision was made. Such issue was required 
 to be made up and tried in the same manner as issues awarded in 
 the court of chancery. But the supreme court is authorized to 
 grant a new trial in the same manner as if the suit had been 
 originally commenced in that court. (2 R. S. 66, 67, as modified 
 bi/ act of ISil, ch. 280, ni.) 
 
 The foregoing, and other provisions in our statutes, contemplate 
 that issues may be framed in surrogate's court, which are proper to 
 be tried by a jury. Although for the formation of an issue it is 
 not indispensable that written pleadings should be employed, yet 
 it is desirable, for the sake of certainty, and to preserve the record 
 of the questions in controversy, that they should be in writing, 
 and drawn up in a form analogous to pleadings in other courts. 
 
 The process issued by the court are citation, subpoena for wit- 
 nesses, attachment to enforce obedience to its orders, and injunc- 
 tions in certain cases. {Laws of 1837, p. 535.) Their nature 
 and the circumstances under which they may be issued, will be 
 more appropriately treated in a subsequent section. 
 
 In a contest as to the validity of a will it has been said that a 
 person claiming as next of kin should, in his allegation of interest, 
 show how he was related to the deceased. {The Public Admin- 
 istrator of New Yor-k v. Watts, 1 Paige, 347.) Such party is 
 bound, if required by the adverse party, to propound his interest 
 or show his right to contest the will. {Id.) The reversal of this 
 case by the court of errors, was upon a point not aifecting the 
 above principle. {S, C, 4 Wetid. 168.) 
 
JUEISDIOTIOK 49 
 
 Section VI. 
 
 Of the power of Surrogates' Courts to set aside proceedings for 
 irregularity, and to grant new trials on the merits. 
 
 The right to grant a new trial on the merits, is an incident of 
 every court of record which possesses general jurisdiction. There 
 is a strong implication against this power in surrogates' courts, 
 arising from the legislative provisions, mentioned in the preceding 
 section, authorizing the supreme court to grant a new trial on 
 issues ordered by a surrogate's court, to be tried in the former court. 
 The general practice when not otherwise provided for by the 
 statute, is for the new trial to be applied for in the court which 
 ordered the issue. {Doe v. Roe, 6 Cowen, 65. iSame v. Same, 
 1 id. 216.) The fact that this power is not only not given to the 
 surrogate's court, on a feigned issue, but is expressly given to 
 another tribunal, is a strong expression of the legislature adverse 
 to the existence of the power. There is no reported case which 
 recognizes the jurisdiction of surrogates' courts, to give a new trial 
 or rehearing on the merits, and there is no statute conferring the 
 authority. 
 
 The power to set aside proceedings for irregularity, and to open 
 defaults depends upon different principles. The practice of the 
 surrogates' courts was originally derived from the practice of the 
 ecclesiastical courts of England, in testamentary matters ; which 
 courts there have the incidental powers of a court of chancery, 
 and of the courts of common law, in regulating the proceedings 
 before them, so as to prevent a failure of justice in consequence of 
 mistakes and accidents which human foresight is not always able 
 to guard against. {Pew v. Hastings, 1 Barb. Ch. R. 453, per 
 Walworth, Ch. citing Shannery v. Allen, 1 Lee's Eccl. Rep. 9. 
 Cargill V. Spence, 3 Hagg. Eccl. R. 146.) Thus the chancel- 
 lor, in the case last cited, held that it was the duty of the surro- 
 gate to open a decree for an accounting, which had been obtained 
 by default under circumstances which would have induced the 
 court of chancery to open a like decree : and the decision of the 
 chancellor was affirmed by the court for the correction of errors, 
 on appeal. (1 Barb. Ch. R. 455.) In another case, ( Vreedenbergh 
 7 
 
50 JUEISDICTION'. 
 
 V. Calf, 9 Paige, 128,) the chancellor held that when a surrogate 
 had made an irregular or unauthorized order, he had the power, 
 on a proper application, to set it aside, and that it was his duty to 
 do so where such order was made ex parte. In Skidmore v. 
 Davis, (10 Paige, 316,) the same chancellor held that the proper 
 remedy of a party against whom an order was granted irregularly 
 by the surrogate, was not by appeal to the chancellor, but an ap- 
 plication to the surrogate to set it aside. 
 
 The repeal in 183T, [Laws, p. 536, § 71,) of the restrictive 
 clause in the revised statutes, (2 R. S. 221, § 1,) and which has 
 been before adverted to in these pages, has been supposed to 
 restore to the court certain incidental powers, which were abso- 
 lutely essential to the administration of justice. {Isham v. Gib- 
 Ion, 1 Bradf. YO, 78.) In a still later case, the chancellor held 
 that independently of the statute of 1837, the surrogate was 
 authorized to call ia and revoke letters of administration which 
 had been irregularly obtained upon a false suggestion of a matter 
 of fact, and without due notice to the party rightfully entitled to 
 administration. Such appears to have been the undisputed prac- 
 tice of the English ecclesiastical courts in such cases. (^Cornish 
 v. Cornish, 1 Lee's Eccl. Rep. 14. Burgis v. Burgis, Id. 121. 
 Ogilvie v. Hamilton, Id. 357. Smith v. Cary, Id. 418.) The 
 34th section of the act of 1837, page 530, so far as it relates to 
 this point, was merely in aflSrmance of the common law, and the 
 principle was applied to other cases when the power was question- 
 able, if it existed at all. 
 
 Section VII. 
 Of miscellaneous matters appertaining to the office of Surrogate, 
 
 It is proposed, in this section, to advert to certain matters which 
 could not be conveniently arranged under either of the preceding 
 heads. 
 
 By the existing law the surrogate of each county is required 
 to provide and keep the following books : 
 
 1. A book in which shall be fully and distinctly recorded all 
 wills, testaments and codicils proved before him, and the proof 
 thereof; and in which he may also record any will relating to real 
 
JURISDICTION. 51 
 
 estate situated ■within his county, which shall have been duly 
 proved before and recorded by any other surrogate ; upon the pro- 
 duction of an exemplified copy of such record. 
 
 2. A book in which shall be recorded in like manner, all letters 
 testamentary and of general and special administration. 
 
 3. A book in which shall be entered all minutes of other pro- 
 ceedings, by or before him, in relation to the estates of deceased 
 persons, with all orders and decrees made by him, and minutes of 
 all citations, subpoenas, attachments and other process issued by 
 him, in relation to such estates ; and the testimony taken by him 
 in relation to the granting or revocation of letters testamentary, 
 or of administration. 
 
 4. A book in which shall be recorded the appointment of guar- 
 dians of infants, and the revocation of any such appointment. 
 
 5. A book in which shall be entered all proceedings in relation 
 to the admeasurement of dower, and all orders, reports and de- 
 crees thereupon. 
 
 6. A book in which shall be recorded all orders and decrees 
 made by him, upon any proceedings in relation to the sale of the 
 real estate of deceased persons. 
 
 T. A book in which shall be entered at length and by items, the 
 fees charged and received by him on all proceedings had before 
 him, under the name of each intestate or testator. (2 R. S. 222, 
 as modified by the act of 1837, p. 524, §§ 2, 3. 2 R. S. 110, § 60.) 
 To each of the said books there should be an index of the subjects 
 therein, with a reference to the pages where such subjects maybe 
 found ; which, together with such books, are required to be at all 
 proper times, open to the inspection of any person paying the fees 
 allowed by law for such examination. 
 
 The surrogate was required by the revised statutes, (2 R. iS. 
 222, § 7,) also to keep a book in which should be entered all accounts 
 of executors and administrators, settled before him, and also the ac- 
 counts rendered by guardians, at full length. This provision was 
 dispensed with by the act of 1837, p. 524, § 2 ; and as a substitute 
 he is now required to file said accounts, and to record with his de- 
 cree, a summary statement of the same as they shall be finally 
 settled and allowed by him, which are to be referred to and taken 
 as part of the decree. 
 
52 JUEISDICTION. 
 
 Whenever the seal of office of the surrogate shall be lost or de- 
 stroyed, or shall be so injured that it cannot conveniently be used, 
 the surrogate is required to procure a ne-w one at his own expense, 
 similar in all respects to the former seal, and to give notice thereof 
 to the secretary of state. (2 R. JS. 221, s 5.) The surrogate ap- 
 pointed for a new county hereafter to be organized, is, in like man- 
 ner required to procure at his own expense a seal for his office. 
 {Id. § 4.) 
 
 Formerly, also, the several books in which were recorded all 
 wills proved before the surrogate, together with the proof thereof, 
 and all letters testamentary and of administration by him granted, 
 were required to be furnished at the expense of the surrogate. 
 (1 R. L. 0/1813, p. 446.) But in the revised statutes (2 R. S. 
 222, § 7,) the latter clause was omitted in the section which directs 
 the surrogate to provide suitable books for recording the proceed- 
 ings of the court ; and that expense has since been held by the su- 
 preme court to constitute a proper charge against the county. (MS.) 
 
 Under the revised statutes it had become the practice in some 
 counties of recording wills of real estate proved as such, in a differ- 
 ent book from that in which wills admitted to probate were re- 
 corded. Hence the same will might be recorded twice in the same 
 office. This is made unnecessary by the law of 1837, if the will 
 is recorded as a will of real estate, before it is admitted to pro- 
 bate. {Laws of 1837, p. 628^ § 19.) In such a case it seems 
 that the copy of the record already entered, is issued with the let- 
 ters testamentary, and no new record of the will need be made. 
 
 The revised statutes require every surrogate carefully to file 
 and preserve all affidavits, petitions, reports, accounts and all other 
 papers belonging to his court ; and all such papers and the books 
 .kept by him are declaxed to belong and appertain to his office, and 
 to be delivered to his successor. (2 R. S. 223, § 8.) And by a 
 subsequent section of the same act the successor in office is author- 
 ized to complete the business of the court, unfinished when the 
 vacancy occurred. 
 
 In Williamson v. Williamson, (6 Paige, 300,) the chancellor 
 observed that it was the duty of the surrogate, upon the taking of an 
 account, or upon any other proceeding which might be the subject 
 of appeal, tojeduce to writing and preserve the evidence and admis- 
 
JURISDICTION". 53 
 
 slons of the parties, so far as to enable him or his successor to make 
 a correct return of the facts, in case it should be necessary in con- 
 sequence of an appeal to a higher tribunal. 
 
 The legislature of this state has . always exercised a becoming 
 care, and manifested a deep solicitude, for the purity of the admin- 
 istration of justice. This care has been extended to all holding 
 judicial stations. The design seems to have been not only to guard 
 them against temptation, but also to remove them from every sus- 
 picion of partiality. It is not pertinent to our subject to notice 
 these provisions further than as they relate to surrogates. This 
 officer is forbidden to be counsel, solicitor or attorney for or against 
 any executor, administrator, guardian or minor, in any civil action, 
 over -whom or -whose accounts he could have any jurisdiction by 
 law. (2 R. S. 223, § 13.) He is forbidden also to practice or act 
 as attorney, counsellor or solicitor in his court, or in any cause 
 originating in such court. This prohibition is also extended to 
 the partner in business of the surrogate, who is also forbidden to 
 practice or act as attorney, solicitor or counsellor, in any cause or 
 proceeding before such surrogate, or originating before him. {Laws 
 of 1847, p. 647, § 51.) And this prohibition is by another statute 
 extended to the son and clerk as well as the partner of the surro- 
 gate. {Laws o/'1844, p. 448, § 4.) 
 
 All judicial officers, and therefore, every surrogate, are forbid- 
 den to demand or receive any fees or other compensation, for giv- 
 ing their advice in any matter or thing pending before them, or 
 which they have reason to believe will be brought before them for 
 decision ; or for drafting or preparing any papers or other pro- 
 ■ceedings, relating to any such matter or thing, except in those 
 cases where fees are expressly given by law to such officers, for 
 services performed by them. (2 R. S. 275, § 6, as amended by 
 the law of ISm, p. 395.) 
 
 In the foregoing cases the disqualification arises from some act 
 of the officer. But there may be cases in which the surrogate has 
 been passive ; and still he may be an improper judge, within the 
 principles of sound morality. Thus, should the surrogate be in- 
 terested as next of kin to the deceased, or should he be a legatee 
 or devisee under the will ; or should he be named as executor or 
 trustee in the will or be a subscribing witness thereto, it is fit that 
 
54 JtJRISDIOTION'. 
 
 he should be ousted of jurisdiction, and the duties of the office be 
 transferred to another officer. This is done by the statute. 
 (2 R. S. 79, § 48, as amended in 1830, p. 390.) 
 
 The person who is required to act in the foregoing contingency 
 is the county judge, formerly the first judge under the constitu- 
 tution of 1822, (2 R. S. 79, as altered by the act of 1843, ch. 
 121, § 1,) or the local officer elected to perform the duties of the 
 office of county judge and surrogate, or in case of their disability the 
 district attorney of the county, {Laws of 1847, p. 330, § 87 ; Id. 
 643, § 32,) unless he labors under a like disability. When there 
 is no person capable of acting under the provisions of the law, the 
 supreme court is authorized to issue a commission to some suitable 
 person, empowering him to act as surrogate in the premises. 
 (2 R. S. itk ed. 266.) 
 
 Under the revised statutes the first judgCj when discharging the 
 duties of the office of surrogate, was authorized to use the seal of 
 the court of common pleas of his county without charge. There 
 was a propriety in this, as the office of surrogate was not vacant. 
 Undfer the like contingency the county judge must use the seal of 
 the county court of his county. (2 R. S. 79, § 52, making the 
 change required hy the constitution.) But if the county judge is 
 required to act in a case where the office of surrogate is vacant, he 
 must use the seal of the surrogate of the county. {Laws of 1887, 
 ■p. 543.) In the former case all papers, vouchers and documents 
 were required to be deposited by the judge in the office of the 
 county clerk of the county, and in the latter to be filed in the sur- 
 rogate's office. {Id.) 
 
 Inasmuch as the fact of the surrogate's being a subscribing wit- 
 ness to the will was not originally made a ground of disability in 
 the surrogate by the revised statutes, it was doubted, at one time, 
 whether the first judge possessed the same pow-ers as when the 
 disability of the surrogate arose from the causes mentioned in the 
 act. The act of 1834, page 674, removed this doubt, and gave to 
 the first judge the same jurisdiction in both cases. 
 
 The surrogate is required, within twenty days after receiving 
 notice of his election, to execute to the people of this state, with 
 two or more surieies, being freeholders, a joint and several bond, 
 conditioned for the faithful performance of his duty and for the ap- 
 
JURISDIOTIOK 55 
 
 plication and payment of all moneys and eiFects that may come 
 into his hands in the execution of his office. The bond of the sur- 
 rogate of the city and county of New York is to be in the penal 
 sum of ten thousand dollars, and that of every other surrogate in 
 the sum of five thousand dollars. (1 R. S. 382, § 8T.) The clerk of 
 the county is the judge of the sufficiency of the sureties. He is 
 to take the constitutional oath of office within fifteen days after 
 being notified of his election, which oath may be taken before the 
 clerk of the county, and must be filed in the office of such clerk. 
 It may also be taken before the county judge or a judge of the 
 supreme court. (1 H. S. 119, § 20 to 22.) 
 
PART II. 
 
 OF 'THE ORIGINAL AND BXCLUSIVB JURISDICTION OP SURROGATES' 
 COURTS ; AND HEREIN OF THE APPOINTMENT OF EXECUTORS AND 
 ADMINISTRATORS. 
 
 CHAPTER I. 
 
 OP WILLS, THEIR ORIGIN, NATURE AND INCIDENTS. 
 
 IT is impossible to have a correct understanding of the duties of 
 executors and administrators, without some previous acquaint- 
 ance with the law concerning wills and testaments. The unlimited 
 power of testamentary alienation, which every person not laboring 
 under some disability, possesses in this country, over his property, 
 makes it incumbent on those who are entrusted with the manage- 
 ment of the estates of deceased persons, to acquire accurate notions 
 of that instrument especially by which their authority is conferred, 
 regulated or restrained. This instrument, when it relates solely 
 to personal property, is usually denominated a will or testament ; 
 when it relates to real property it is called a devise ; and, in both 
 cases, it may be defined to be the legal declaration of a party's in- 
 tention which he directs to be performed after his death. (2 Bl. 
 Com. 499, 500.) In popular language a testamentary disposition 
 of either real or personal property, or of both together, is denomi- 
 nated a last will and testament. It is proposed to treat briefly in 
 this chapter, of the origin and incidents of wills, both of personal 
 property and of devises of real property. 
 
ORIGIN AND NATURE OF "WILLS. 57 
 
 The power of making a -will of personal property Is said, by the 
 elementary writers on this subject, to have existed and continued 
 from the earliest records of English law. We have no traces or 
 memorials of any time when it did not exist. But this power, it 
 seems, did not originally extend to all a man's personal estate, un- 
 less he died without wife or issue. On the contrary, Glanville in- 
 forms us that by the common law, as it stood in the reign of 
 Henry 2, a man's goods were to be divided into three parts ; of 
 which one went to his heirs, or lineal descendants ; another to his 
 wife, and the third was at his own disposal ; or if he died without 
 a wife, he might then dispose of one moiety and the other went to 
 his children ; and so, e converse, if he had no children, the wife 
 was entitled to one moiety, and he might. bequeath the other. But 
 if he died without either wife or children the whole was at his 
 own disposal. The shares of the wife and children were called 
 their reasonable parts ; and the writ de rationabili parte bono- 
 rum was given to recover them. Whether this was the general 
 law of the land or prevailed in certain districts only by custom, it is 
 unnecessary to inquire. The law itself became altered by impercept- 
 ible degrees, and the deceased might, in England, before the Ameri- 
 can revolution, bequeath by will the whole of his goods and chattels ; 
 though, perhaps, it is impossible to trace out when the first alter- 
 ation began. (2 Bl. Com. 491, 492.) By virtue of several stat- 
 utes, enacted at different periods, the residue of the whole kingdom 
 has been brought to the same standard, thereby barring the 
 claims of the widow, children and other relations. And thus the 
 old common law, throughout the whole kingdom, was utterly abol- 
 ished, and the owner was allowed to bequeath the whole of his 
 chattels as freely as he formerly could his third part or moiety. 
 Our ancestors brought to this country so much of the common law 
 in this respect as was suited to their circumstances and condition. 
 In general it may be observed that the right of bequeathing per- 
 sonal property is with us as extensive as the testators' dominion 
 over it. 
 
 In England too, by statute, 1 Vict. 26, entitled an act for the 
 
 amendment of the law with respect to wills, passed 3d July, 1837, 
 
 it is made lawful for every person to devise, bequeath and dispose 
 
 ofj by his will executed as required by that act, all real estate and 
 
 8 
 
58 NATURE OF WILLS— CODICIL. 
 
 all personal estate which he shall be entitled to, either in law or 
 equity, at the time of his death. {See this act in Preface to 
 1 Wms. Executors, Uh Am. ed. from the last London ed. and 
 in the Appendix to Jarman on Wills, Zd Am. ed.) 
 
 It was, at common law, one of the incidents of a last will and 
 testament, in respect to the personalty, that it was a disposition 
 of a man's personal estate to take effect after the death of the tes- 
 tator. It operates on whatever personal estate a man dies pos- 
 sessed of, whether acquired before or after the execution of the in- 
 strument. A will of personal property speaks from the death of 
 the testator ; a devise of real estate, formerly spoke from the date 
 of the devise. But now, by statute, both speak from the same 
 point of time, the death of the testator. (2 R. S. 57, § 5.) In 
 this respect, the English law and our own are substantially alike. 
 
 According to the old authorities of the ecclesiastical law, the 
 appointment of an executor was essential to a testament. {iSwinb. 
 part 1, 9 19. Godol. part 1, ch. 1, § 2.) But this strictness has 
 long ceased to exist, and probably never existed at all in this 
 country. 
 
 A codicil, in the usual acceptation of the term, ia an addition 
 made by the testator, and annexed to, and to be taken as a part 
 of a testament, being for its explanation, or alteration, or to make 
 some additions to, or some subtraction from, the former disposition 
 of the testator. In this sense it is part of the will, all making 
 but one testament. It requires the same formalities to render it 
 valid, and is thus placed in every respect on the same footing as 
 the will. (2 R. S. 68, § 71.) 
 
 A will is, in its nature, a different thing from a deed, and al- 
 though the testator happens to execute it with the formalities of a 
 deed ; for example, though he should seal it, which is no part of 
 the ingredient 'of a will ; yet it cannot in such case be considered 
 as a deed. {Earl of Darlington v. Pultney, 1 Cowper, 261.) 
 
 It is also a peculiar property in a will, as it will hereafter more 
 fully appear, that by its nature, it is in all cases a revocable in- 
 strument, even should it in terms be made irrevocable ; for it is 
 truly said that the first grant and the last will is of the greatest 
 force. 
 
NATUEE OP WILLS— DOMICIL. 59 
 
 The law of domicil is important to be considered with reference 
 both to wills and the succession to the estates of intestates. 
 
 There has been, it is said, a difference of opinion among foreign 
 jurists, whether a will of personal estate, in which the testator has 
 complied with the forms and solemnities required by the lex loci 
 actus, is a valid testamentary disposition of such property; 
 although in the form of its execution, such will does not conform 
 to the requirements of the law of the testator's domicil. Accord- 
 ing to Chancellor Walworth, {in the matter of Catharine Roberts' 
 tbill, 8 Paige, 525,) the better opinion is, that so far as regards 
 the mere formal execution of the testament, it is sufficient if it con- 
 forms to the law of the country where the Will is made ; in accord- 
 ance with the maxim, locus regit actum. (See 17 Guyotts Rep. 
 de juris, art. Testament, 186. 4 Burge, Col. and Foreign 
 Law, 583.) Probably, says the chancellor in the same case, the 
 testament may also be valid if made and executed in conformity 
 to the law of the testator's domicil, although it does not con- 
 form- in all respects to the lex loci actus. {Story^s Confl. 391.) 
 It appears to be the generally received doctrine, at the present 
 day, that the status or capacity of the testator to dispose of his 
 personal estate by will, depends upon the law of his domicil. 
 
 The revised statutes of New York seem to contemplate that a 
 will of personal property, by a citizen of this state, is valid, if 
 made in conformity to the requirements of our law ; although exe- 
 cuted out of this state, and in a place where the local laws require 
 the adoption of a different form. This is a distinct recognition of 
 the principle that the will may be valid, if made and executed in 
 conformity with the law of the testator's domicil. (2 R. S. 67, as 
 amended by the act of 1830, p. 389. 3 R. S. 152, bth ed. § 85.) 
 This doctrine has been acted upon by the surrogate of New York, 
 and a mutual or conjoint will executed according to the Danish 
 law by husband and wife, then resident in a Danish colony, has 
 been declared to be valid, though not attested according to the 
 laws of New York. {Ex parte McCormick, 2 Bradf. 169.) 
 
 The law of the testator's domicil at the time of his decease, 
 governs as respects his testamentary capacity. {Id. Story's Confli 
 Laws, § 473.) It governs also the rule of succession to his per- 
 sonal estate in case he dies intestate. If, therefore, a foreignel? 
 
60 NATURE OF WILLS-DOMIOIL—MIITUAL WILLS. 
 
 dies domiciled in England, his personal property in England, in 
 case he were intestate, will be distributed according to the Eng- 
 lish law of succession ; and any will he may have left, whether 
 made in his native or in his adopted country or elsewhere, must be 
 construed according to the law of England. (1 Jarman on 
 Wills, 2. Anstruther v. Chalmer, 2 Sim. 1. Price v. Dewhurst, 
 4 Mj/lne ^ Cr. 75.) A will of personalty speaks according to 
 the testator's domicil, when there are no other circumstances to 
 contract the application. To raise the question what the testator 
 meant, it must first be ascertained, where was his domicil, and 
 whether he had reference to the laws of that place, or to the laws 
 of a foreign country. {Harrison v. Nixon, 9 Peters, 483.) 
 
 An essential difference between a will and a deed is pointed out 
 in the English books, (1 Wms. Executors, 10,) viz : that there 
 cannot be s. joint or a mutual will. Such an instrument, it was 
 remarked by Sir John Nichols, in Hobson v. Blackburn, (1 Add. 
 274,) is unknown to the testamentary law of England. Lord 
 Mansfield seems to have been of the same opinion in delivering his 
 judgment in Earl of Darlington v. Pultney, (1 Cowp. 261.) A 
 different view of the question was taken by the surrogate of New 
 York, in Day Ex parte, (1 Bradf. Sur. 476.) The learned sur- 
 rogate held that a mutual will might be admitted to probate on 
 the decease of either of the parties, as his will. But while this 
 was so, the instrument, though irrevocable as a compact, was revo- 
 cable as a will by any subsequent valid testamentary paper. But 
 if unrevoked, the surrogate thought it might be proved, provided it 
 had been executed with the formalities and ceremonies essential 
 to the due execution of a will. 
 
 Cases of mutual wills, though not unfrequent in countries where 
 the civil law prevails, are unusual in this country ; and whether 
 valid or not, are not the most advisable form of contract. 
 
 It has long been a principle in the ecclesiastical law, that the 
 granting of probate is conclusive as to the testamentary character 
 of the instrument in reference to the personalty. This doctrine 
 has been fully applied in a variety of cases to the surrogates' courts 
 of this state. It was expressly recognized by the chancellor in 
 Colton V. Ross, (2 Paige, 398,) adopting the rule as expounded 
 
EFFECT OF PROBATE OF WILLS. 61 
 
 by Lord Eldon, in Lynn v. Beaver, {T. ^ R. 67.) The provision 
 of the revised statutes on this subject is not introductory of any 
 new rule, but in affirmance of the common law. It merely makes 
 the probate of any will of personal property, taken by a surrogate 
 having jurisdiction, conclusive evidence of the validity of such will, 
 until such probate be reversed on appeal, or revoked* by the surro- 
 gate, as afterwards directed, and as will be noticed in its proper 
 place ; or the will be declared void by a competent tribunal. 
 (2 R. S. 61, § 29. Vanderpoel v. Van Valkenburgh, 2 Seld. 190. 
 Stephens v. Mead, 18 Barb. S. C. Rep. 678.) 
 
 But this principle is not applicable, to the same extent, to the 
 decision of the surrogate as to the validity of a devise of real 
 estate contained in the same will. {Bogardus v. Clark, 4 Paige, 
 623. Vanderpoel v. Van Valkenburgh, supra.) Jurisdiction 
 is conferred by statute on the surrogate's court to take the proofs 
 of the due execution of wills of real estate, and to record the same 
 together with such proofs. The statute declares that the record of 
 such will, and the exemplification of such record, by the surrogate 
 in whose custody it is, shall be received in evidence, and be as 
 effectual in all cases as the original would be if produced and 
 proved, and may in like manner be repelled by contrary proof. 
 (2 R. iS. 58, as amended by the act of 1837, p. 524 to 528. 3 R. S. 
 140, bth ed.) The object of the law was to make the certificate 
 of the surrogate and the record of the will, or an exemplification, 
 ptima facie evidence. In this respect they are placed on the 
 same footing as the record and exemplifications of deeds. ( Vander- 
 poel v. Van Valkenburgh, supra. Bogardus v. Clark, 4 Paige, 
 623.) And hence, while the probate of a will is conclusive as to 
 the personalty in all collateral actions, the proof of a will of real 
 estate, and the record thereof taken in conformity to the statute, is 
 merely prima facie. The proceeding to obtain probate of a will is 
 said to be in the nature of a proceeding in rem, to which all per- 
 sons having an interest in the subject of litigation may make them- 
 selves parties, and are consequently bound by the decree. {Id.) 
 
 • 
 
 The surrogate's court having thus to a certain extent a jurisdic- 
 tion over wills of real estate, it is appropriate to our subject to no- 
 tices briefly, the origin, progress and incidents of devisesi 
 
g2 OEIGIN AKD NATURE OF DEVISES. 
 
 A devise is a last will and testament, by which real estate is di?" 
 posed of, to take effect at the death of the devisor. The word de- 
 vise appears to be derived from divide, and originally meant any 
 kind of division or distribution of property. {Cruise's Dig. tit. 
 Devise, ch. 1, § 1.) 
 
 It is generally agreed, says the same author, that the power of 
 devising lands existed in the time of the Saxons ; but upon the 
 establishment of the Normans, it was taken away as inconsistent 
 with the principles of the feudal law ; and although many of the 
 restraints on alienation by deed Were removed before Grlanville 
 wrote, yet the power of devising lands was not allowed for a long 
 time after ; partly from an apprehension of imposition on persons 
 in their last moments ; and partly on account of the want of that 
 public notoriety which the common law requires in every transfer 
 of property. 
 
 The power of devising continued as to socage landsj situated in 
 cities and boroughs, and also as to all lands in Kentj held by the 
 custom of gavelkind. The restraint upon the power of devising 
 did not give way to the demand of family, and public convenience) 
 so early as the restraint upon the alienation in the lifetime of the 
 owner. The power was indirectly acquired by means of the inven- 
 tion of uses, for a devise of the use was not considered a devise of 
 the land. The devise of the use was supported by thfe courts of 
 equity as a disposition binding in conscience, and that equitable 
 jurisdiction continued until the use became, by statute, the legal 
 estate. The statute of uses, like the introduction of feuds, again 
 destroyed the privilege of devising, but the disability was removed 
 within five years thereafter, by the statute of wills, 32 Henry 8i 
 That statute applied the power of devising to socage estates, and 
 to two-thirds of the land held by knight service ; and this check 
 was removed with the abolition of the military tenures in the be- 
 ginning of the reign of Charles 2, so as to render the disposition 
 of real property by will absolute. {Cruise's Dig, tit. Devise) 
 ch. 1. 4 Kent's Com. 504.) 
 
 The English law of devise was imported into this country by our 
 ancestors, and incorporated into our colonial jurisprudencej under 
 such modifications in some instances, as were deemed expedient. 
 The recognition of this general fact, was in this state emphatically 
 
ORIGIN- AND NATURE OP DEVISES. 63 
 
 made by the first constitution, adopted in 1777, and has been sub- 
 stantially repeated in each subsequent revision of the organic law. 
 Our ancestors claimed the common law as their birthright. Lands 
 may be devised by will, in all the United States ; and the statute 
 regulations on this subject are substantially the same, as they have 
 been taken from the English statutes of Henry 8, and 29 Charles 
 2. {See 1 Greenl. 386 et seq.) 
 
 In this state, by the existing law, a man may devise whatever 
 would, without a devise, descend to his heirs. (2 R. S. 57, § 2.) 
 And if it is so expressed, a devise may operate upon after-acquired 
 lands, as well as upon that which the devisor owned at the time of 
 executing the will. {Id. § 5.) It was otherwise, at common law ; 
 a devise being considered merely as a conveyance, and operating 
 only upon the interest of which the testator was seized at the time 
 of making the devise, and of which he continued so seized- till his 
 death. {Cruise's Dig. title Devise, ch. 8, § 87.) So that if a 
 person devised his lands, and was afterwards disseized, and died 
 before entry, the devise was void ; but if the devisor re-entered, 
 the devise became again valid, the disseizin being thus purged, 
 and the disseizee being considered as never having been out of 
 possession. But this feature of the common law has, as we have 
 seen, been changed in England by the statute (1 Vict. ch. 26,) 
 already referred to, by force of which every person may devise, be- 
 queath or dispose of, by his will, all real estate and all personal estate, 
 which he shall be entitled to either at law or in equity at the time 
 of his death ; and which, if not so devised, bequeathed or disposed 
 of, would devolve upon the heir at law. {See the act in Preface 
 to 1 Wms. Ex'rs, Ath Am. from the last London ed., and in 
 Appendix to 2 Jarm,an on Wills, § 3.) 
 
 Wills which convey both real and personal property are of 
 a mixed character. They may be both admitted to probate and 
 proved as wills of real estate. The probate will be conclusive, so 
 far as it relates to the personalty, and the record properly attested 
 or exemplified as a will ofreal estate, will be prima facie evidence, 
 in a controversy as to the realty, subject, however, to be repelled 
 by other proof. 
 
 In this state, it will be seen hereafter that the requisites to a 
 valid execution of a will are the same, both in a will of real and 
 
64 NUNCUPATIVE WILLS. 
 
 personal property ; except that in the latter, a male of the age of 
 eighteen and an unmarried female of the age of sixteen, heing in 
 other respects competent, may bequeath his or her personal prop- 
 erty by will in writing. (2 R. S. 60, § 21.) 
 
 A few observations on the subject of nuncupative wills, will close 
 this branch of our subject. 
 
 At common law, a will of chattels was good without writing. 
 In ignorant ages there was no other way of making a will than by 
 words or signs. But by the time of Henry 8, and especially in 
 the age of Elizabeth and James, letters had become so generally 
 cultivated, and reading and writing so widely diffused, that verbal, 
 unwritten or nuncupative wills were confined to extreme cases, and 
 held to be justified only upon a plea of necessity. They were 
 found to be liable to great frauds and abuses ; and a case of fright- 
 ful perjury in setting up a nuncupative. will (4 Vesey, 196, note,) 
 gave rise to the statute of frauds, (29 Charles 2, ch. 3,) which 
 enacted that no nuncupative will should be gOod when the estate ex- 
 ceeded thirty pounds, unless proved by three witnesses present at 
 the making of it ; or unless it was made in the testator's last sick- 
 ness, and be reduced to writing within six days after the testator's 
 death. This regulation has been incorporated into the statute law 
 of this country ; but even these legislative precautions were insuf- 
 ficient to prevent the grossest frauds and perjury in the introduc- 
 tion of nuncupative wills. The whole subject underwent a thorough 
 and searching discussion in the court of errors, in 1822, when it 
 was held that a nuncupative will is not good, unless it be made 
 when the testator is in extremis, or overtaken by sudden and vio- 
 lent sickness, and has not time to make a written will. {Prince v. 
 Hazleton, 20 John. 502.) That case, no doubt, afforded the reason 
 for the legislature, in 1830, to change the law, and they did so by 
 enacting that no nuncupative or unwritten will bequeathing per- 
 sonal estate, should be valid unless made by a soldier while in 
 actual military service, or by a mariner while at sea. (2 R. S. 60, 
 § 22. 3 Id. 141, bth ed. Revisers' Notes, 3 R. S. 630.) It 
 is now required, in the English ecclesiastical courts, that a nun- 
 cupative will be proved by evidence more strict and stringent than 
 that applicable to a written will, even in addition to all the requi- 
 
CAPACITY TO MAKE A WILL— INFANTS. 65 
 
 sites prescribed by the statute of frauds. {Lemaim v. Bonsall, 
 1 Add. 389.) And by the new statute of wills, already referred 
 to, (1 Vict. ch. 26,) nuncupative wills are rendered invalid except 
 when made by a soldier in actual military service, or a mariner, or 
 seaman, being at sea. 
 
 The further consideration of this subject appropriately falls un- 
 der a subsequent chapter, when we shall treat of the form and 
 manner of making wills and codicils. {See post, ch. 2, § 3.) 
 
 CHAPTER 11. 
 
 OP MAKING, REVOKING AND REPUBLISHING -WILLS, AND HEREIN 
 OP THE PERSONS CAPABLE OP MAKING A WILL OR CODICIL. 
 
 We prefer to consider this subject more particularly with refer- 
 ence to wills of personal property, because it is with that class of 
 wills that the executor is principally concerned. Reference, how- 
 ever, will occasionally be made to the law relative to devises, and 
 a distinct section will be inserted, in its proper place, giving a his- 
 tory of the jurisdiction of surrogates' courts over the proof of wills 
 of real estate, and pointing out the mode of conducting such pro- 
 ceedings, and the effect thereof. But as the testamentary capacity 
 required to niiake a will of real estate, is the same as that needed 
 for a will of personal estate, and as the form and attestation of both 
 are in all respects alike, it does not seem to be necessary that the 
 two classes of wills should be separately treated. With respect to 
 the disposing of real estate by will, the persons laboring under 
 disabilities are idiots , persons of unsound mind, married women 
 and infants. (2 R. S. 57, § 1.) The disability arising from cov- 
 erture is not without its qualifications, as will be seen hereafter. 
 
 The same disabilities extend to the making a will of personal 
 estate ; except that every male person of the age of eighteen years 
 or upwards, and every unmarried female of the age of sixteen years 
 or upwards, of sound mind and memory, are permitted to bequeath 
 their personal estate, by will in writing. (2 R. S. 60, § 21.) The 
 terms unsoundness of mind and no7i compos mentis are con- 
 9 
 
66 OAPAOITY TO MAKE A WILL— INFANTS. 
 
 vertible terms, and mean the same thing. {Stanton v. Wetherwax, 
 
 16 Barh. 262.) 
 
 It may be laid down generally, that all persons are capable of 
 disposing of their property by will, who have sufficient capacity to 
 make a contract, are under no improper restraint, and have not 
 been convicted of any crime to which civil death or forfeiture is 
 attached, or which suspends the civil rights of the convict. We 
 shall consider these three grounds of incapacity ; 1. The want of 
 a testamentary capacity ; 2. Improper restraint ; and 3. The con- 
 viction for crimes which work a disqualification. 
 
 Section I. 
 Of persons incapable from want of testamentary capacity. 
 
 In this class, at common law, are to be reckoned infants under 
 the age of fourteen years if males, and twelve if females. At these 
 ages the Roman law allowed of testaments ; and the civilians 
 agree that the ecclesiastical courts follow the same rule. The New 
 York revised statutes, it has been seen, so far altered the common 
 law, in this respect, as not to permit males till of the age of eighteen 
 years, nor femalps till of the age of sixteen years, to bequeath their 
 personal estate by will. (2 R. S. 60, § 21.) In England, the statute 
 1 Victoria, chapter 26, has entirely abolished the testamentary ca- 
 pacity of infants, and provided that no will made by a person under 
 the age of twenty-one years shall be valid." This act took effect 
 in 1838. There is a tendency in the legislation of the different 
 states to fix the age at which a person, whether male or female, 
 may make a will, either of real or of personal estate, at twenty-one 
 years. Such is now said to be the law in Massachusetts, Delaware, 
 Michigan, Pennsylvania, New Hampshire, Maine, Indiana, New 
 Jersey, and probably of some others. (1 Jarman on Wills, by 
 Perkins, 29.) 
 
 In some of the states the nature of the property to be disposed 
 of, as whether it be real or personal, determines the age of testa- 
 mentary capacity. Thus, in Rhode Island, Virginia, Arkansas, 
 Missouri and North Carolina, persons whether male or female may 
 dispose of personal property by will at eighteen years of age, and 
 of real estate at twenty-one. In Connecticut the testator or tes- 
 
OAPAOITY TO MAKE A WILL— INFANTS. 67 
 
 tatrix must be twenty-one to devise real estate, and at seventeen 
 may bequeath personal estate. 
 
 In other states there is a difference made between males and 
 females with respect to testamentary age. In Maryland and Ken- 
 tucky, the age required for the validity of a will of real, and in Mis- 
 sissippi for the validity both of a will of real and a will of per- 
 sonal estate, is twenty-one in males and eighteen in females. la 
 Illinois the age of twenty-one years is required for males, eighteen 
 for females as to real estate, and seventeen years for both males 
 and females as to personal estate. (1 Jarman on Wills, Per- 
 kins' ed. 30.) In this state it has been seen that the age of twen- 
 ty-one is required for all persons, whether male or female, as to 
 real estatCj but a male at eighteen and a female at sixteen years 
 of age may make a valid will of personal estate. 
 
 The legislation of the different states has been in some measure 
 fluctuating on this point; The tendency obviously is to adopt the 
 uniform rule prescribed by the late English statute of wills, 1 Vic- 
 toria, chapter 26, and to abolish entirely the testamentary capacity 
 of all persons under the age of twenty-one years. 
 
 When an infant has attained the proper age, he or she may 
 make a will without or against the consent of their tutor, father 
 or guardian. (1 Baa Abr tit. Witts, B. 2.) But though no objec- 
 tion can be admitted to the will of an infant of eighteen, if a male, 
 and sixteen if a femalcj merely for want of age ; yet if the testator 
 was not of sufficient discretion, whether of the age of sixteen or 
 sixty, the instrument is invalid. 
 
 The language of the revised *atutes, which gives the power to 
 a female person of the age of sixteen years or upwards, not being 
 a married woman, and no others, to bequeath their personal prop- 
 erty by will in writing, has occasioned a doubtj whether a married 
 female infant of the age of sixteen years or upwards, could execute 
 a testamentary instrument, under a power of appointment, either 
 as to her real or personal estate. But the right to do so was up- 
 held by the chancellor. {Strong v. Wilkin, 1 Barb. Ch. 12.) 
 
 An idiot, that is a fool or madman from his nativity, who never 
 has any lucid intervals, was at common law incapable of making a 
 will. {Beverley's case, 4 Coke, 124 b. Stewart's Executor r. Lis- 
 penard, 26 Wend. 255. Blanchard v; Nestle, 3 Denio, 37.) 
 
68 CAPACITY TO MAKE A WILL-IDIOTS. 
 
 The revised statutes did not in this respect create a new inca- 
 pacity, but merely recognized one that had existed from the earli- 
 est records of the law. An idiot is described to be a person who 
 cannot number twenty, tell the days of the week, does not know 
 his own father or mother, or his own age. But these circumstan- 
 ces, though they be evidences of idiocy, yet they are too narrow 
 and conclude not always ; for whether idiot or not is clearly a 
 question of fact, referable to the circumstances of each particular 
 case. If an idiot should make his will so well and so wisely in 
 appearance that the same may seem rather to be made by a rea- 
 sonable man than by one void of discretion, yet this testament is 
 void in law. {Swinb. pt, 2, § 4, pi. 6. 7 Bac. Abr. tit. Wills, b. 1. 
 2 Dean's Med. Jur. 466.) Chancellor Kent, in Van Alst x- Hun- 
 ter, (5 John. Ch. 161,) says that the failure of memory is not 
 sufficient to create the incapacity unless it be quite total, or extend 
 to his immediate family and property. The Eoman law {Code 6, 
 24, 14, and note 55,) seemed to apply the incapacity only to an 
 extreme failure of memory, as for a man to forget his own name, 
 fatuus prcesumitur qui in propria nomine errat, and the supreme 
 court in Jackson v. King, (4 Cowen, 207,) sanction the same doc- 
 trine. The unsoundness of mind which by the statute works a 
 total incapacity for making a will, means a total deprivation of 
 understanding, which is denominated idiocy. (Blanchard v. iVes- 
 tle, 3 Denio, 37. Stewart v. Lispenard, 26 Wend. 255.) In 
 another case, in speaking of the capacity to make a deed which 
 depends upon the same principk, Oh. J. Bronson says: "in the 
 absence of fraud, proof of mere imbecility of mind in the grantor, 
 however great it may be, will not avoid the deed. There must be 
 a total want of understanding." ( Osterhout v. Shoemaker, 3 Denio^ 
 37, note. And see also, to the like effect, Odell v. Buck, 21 
 Wend. 142, and Petrie v. Shoemaker, 24 id. 85.) 
 
 One who is deaf and dumb from his nativity is in presumption 
 of law an idiot, and therefore incapable of making a will ; but this 
 presumption may be rebutted, and if it sufficiently appears that 
 he understands what a testament means, and has a desire to make 
 one, then he may by signs and tokens declare his testament. 
 {Swinb. pt. 2, § 4, pi. 5, 7.) One who is not deaf and dumb by 
 naturcj but being once able to hear and speak, if by some accident 
 
IDIOTS— DEAF— DUMB— BLIND, 69 
 
 he loses both his hearing and the use of his tongue, then, in case 
 he be able to write, he may with his own hand write his last will 
 and testament. {Id. § 10. 4 Burns' E. L. 60.) But if he be 
 not able to write, then he is in the same case as those which be 
 both deaf and dumb by nature, i. e. if he has understanding he 
 may make his testament by signs, otherwise not at all. {Id.) 
 
 Such was the ancient common law on this subject. The enlight- 
 ened philanthropy of modern times has taken a less gloomy view 
 of the condition of those who are idiots from their nativity. It 
 has done for them what had before been done for the blind, the 
 deaf and dumb, and for lunatics. It has established an asylum 
 which looks to the education of idiots, thus repelling the presump- 
 tion of their total mental incapacity. {L. of 1851, p. 941, ch. 602.) 
 And it is understood that the institution has been attended with 
 promising results. 
 
 As the revised statutes prescribe the form by which a will is to 
 be made and attested, which requires the testator to declare the 
 instrument to be his last will and testament, in the presence of 
 two witnesses, who are required to sign their names as witnesses, 
 at the request of the testator, (2 R. S. 63,) a literal compli- 
 ance with the statute cannot be accomplished when the testator is 
 deaf and dumb, or blind. But the statute will admit of a more 
 liberal interpretation. When ideas cannot be communicated by 
 oral discourse, they may be transmitted by signs or by writing. 
 Some persons born deaf and dumb have shown great intelligence ; 
 much more is this predicable of those who have become deaf and 
 dumb later in life. It would be a reproach to the jurisprudence 
 of the country if such persons could not dispose of their property 
 by will. In Gombault v. The Public Administratm; (4 Bradf. 
 226,) the will of a person who had been for several years entirely 
 deaf, was admitted to probate. The communications were made 
 to him by writing on a slate, and receiving his answers orally. 
 The surrogate of New- York held, very properly, that it was com- 
 petent to perform the ceremonies of executing the will, in that 
 mode, under the circumstances, the reading and signing of the will, 
 the affirmative response of the testator, to the question whether it 
 was his will, followed by the signature of the witnesses in his 
 
fO HOLOGKAPH— DEAF— BLIND. 
 
 immediate presence, constituted a valid testamentary act, involving 
 a substantial rogation of the witnesses. 
 
 A testament written wholly by the testator's own hand is called 
 a holograph. A holographic instrument affords prima facie 
 evidence that the testator was in his senses when he wrote it ; 
 unless the presumption is repelled by internal evidence of derange- 
 ment, or by extrinsic evidence. 
 
 Such as can speak and cannot hear, may make their testaments 
 as though they could both speak and hear, whether that defect 
 came by nature or otherwise. Such as are only deaf but not dumbj 
 may make their testaments. Such as be speechless only and not 
 void of hearing, if they can write may very well make their tes- 
 taments themselves by writing ; if they cannot write, they may 
 also make their testaments by signs, so that the same signs be 
 sufficiently known to such as then be present. {Swinb. part 2, 
 § 10, pL 2. Godolph. pt. 1, ch. 11. Gombault v. The Public 
 Administrator, 4 Brad. iSur. R. 226. 1 Wms. ExWs. 17.) 
 
 Persons born blind, or who have become so after birth, may nev- 
 ertheless make a will ; but in the absence of any special statutory 
 provision in their favor, they must conform, as far as practicable, 
 to the requirements of the statute. The old authorities required 
 that the will should be read before witnesses, and in their presence 
 acknowledged by the testator for his last will. (Swin. pt. 2, § 11. 
 Godolph. pt. 1, ch. 11.) As the object of reading over the will to 
 the testator in the presence of the witnesses, is to make it certain 
 that he approved its contents, if it can be made to appear that he 
 knew the contents of the will at the time he executed it, an^ that 
 it was conformable to his intentions, it is sufficient. {Fineham v. 
 Edwards, 3 Curteis, 63.) In Barton v. Robins, (3 Phillim.4:54:, 
 note,) Sir George Hay. observed that a blind man's will may be 
 established on proof that he knew the contents, though it was not 
 read over to him in the presence of the subscribing witnesses. 
 And in Longchamp v. Fish, (2 New R. 415,) the same point was 
 established in relation to a will of lands. In Wren v. Fitzgerald, 
 (2 Bradf. Sur. Rep. 42.) the surrogate recommends that the will 
 of a blind man should be read to him in presence of the subscribing 
 witnesses. 
 
 The same precautions necessary for authenticating the will of a 
 
TESTAMENTARY OAPAOITY— THE ILLITERATE. 71 
 
 blind man, seem in like manner requisite in the case of an illiterate 
 person, who cannot read. For though the law in other cases may 
 presume that the person who executes a will knows and approves 
 of the contents thereof; yet that presumption ceases, when by de- 
 fect of education he cannot read, or by sickness he is incapacitated 
 to read the will at that time. The New York revised statutes 
 have provided that in case the testator cannot write his name, and 
 his signature is subscribed to the will by another person, that 
 person must also write his own name to the will as a witness, under 
 the penalty of fifty dollars ; but his omission to do so, nevertheless 
 does not invalidate the will. (2 R. S. 64, § 41.) Though the 
 statute does not require it, it has been strongly recommended that, 
 when the person executing the will is not known to the subscribing 
 witnesses to be capable of reading and writing, especially if he 
 executes the will as a marksman, that the whole will should be de- 
 liberately read over to him in the presence and hearing of the 
 witnesses, and the fact of such reading in his presence should be 
 stated in the attestation clause. In case this is not done, the 
 witnesses should, by inquiries of the illiterate testator himself, 
 ascertain the fact that he was fully apprised of the contents of the 
 instrument which he executed and published as his will, as well as 
 that he was of competent understanding to make a testamentary 
 disposition of his property. All these things, however, says the 
 chancellor, are matters of precaution and prudence, to prevent any 
 well founded doubt upon matters of fact ; and when they are neg- 
 lected it does not necessarily render the will invalid, if the court 
 and jury which are to pass upon the question of its validity are 
 satisfied, upon the whole evidence, that the will was duly executed, 
 and that the testator understood its contents. {Chaffee v. Baptist 
 Miss. Convention, 10 Paige, 90, 1, per Walworth, chancellor.) 
 
 In Barton v. Robins, (supra,) it was observed that in point of 
 law, if the writer of the will was benefited thereby, e. g. made a 
 legatee, he 'must show that the contents of the will were known 
 to the testator. In a leading case on this subject, it was held that 
 if a party writes or prepares a will under which he takes a benefit, 
 that is a circumstance which ought generally to excite the suspi- 
 cion of the court, and call upon it to be vigilant and jealous in 
 examining the evidence in support of the instrument, in favor of 
 
72 WHEN" TO BE READ— UNSOUND MIKD. 
 
 which it ought not to pronounce unless the suspicion is removed, 
 and it is judicially satisfied that the paper propounded does express 
 the true will of the deceased. {Barry v. Butlin, 1 Curt. Bed. R. 
 637. Crispell v. Dubois, 4 Barb. 397.) 
 
 It is not usual to have the will read in the presence of the wit- 
 nesses, nor is it necessary in any case. If the testator knows the 
 contents at the time of publication, it is enough. Publication itself 
 is presumptive evidence that the testator was apprised of what the 
 will contained. It is only when circumstances of suspicion are 
 shown, that the party seeking to establish the will can be required 
 to show that the testator had heard it read, or knew of its contents. 
 When it is shown that the testator is deprived of his hearing, or 
 seeing, or that he is a very illiterate person, or that the party by 
 whom it was prepared derives a benefit under it, a prudent jeal- 
 ousy seems to require some evidence of the testator's acquaintance 
 with the contents of the instrument, in addition to the presumption 
 derived from publication. But every case must depend on its own 
 circumstances. 
 
 The statute disqualification of unsound mind embraces every 
 other form of mental incapacity, not amounting to idiocy. The 
 phrase unsoundness of mind, has been sometimes objected to, but 
 without reason. (1 Beck's Med, Jur. 571.) It seems to have come 
 into use as a technical expression, soon after the proceedings of the 
 courts were required to be in English instead of Latin. Lord 
 Hardwicke, in Ex parte Barnsley, (3 Atk. 171,) in speaking of the 
 form of a return to an injunction of lunacy, says that the ancient 
 form, when the proceedings were in latin, was lunaticus or nrni 
 compos mentis, or insance mentis, and since proceedings have been 
 in English, of unsound mind, which amounts to the same thing. 
 The subject of mental alienation arises in a variety of forms. 
 Very frequently, embarrassing questions are suggested in exe- 
 cuting a commission in the nature of a writ de lunatico inquirendo, 
 and by the proper return to which the courts obtain jurisdiction 
 to appoint a committee of the person and estate. At other times 
 the question arises on an indictment for a criminal offense, when 
 the accused claims immunity on the ground of this dreadful visi- 
 tation. Again the controversy arises as to the legal capacity to 
 make a will or a deed, or other contract. Although in all these 
 
TESTAMENTARY OAPAOITY— LUNATICS. 73 
 
 cases there are some principles which are common, yet there are 
 diversities arising from their different application. The subject in 
 all its bearings belongs to and has been well treated in numerous 
 works on medical jurisprudence, to which the studious reader is 
 referred. (See 1 Beck's Med. Jur. 534 to 661. Dean's Med. Jur. 
 457 et seq. Guy's do. 278 et seq.) In this work we have only- 
 room to treat the subject in a brief and general way, so far as it 
 relates to the testamentary capacity of testators. 
 
 A lunatic, or person non compos mentis, or which is the same 
 thing, a person of unsound mind, {Blanchard v. Nestle, 3 Denio, 
 42,) is one who has had understanding, but by disease, grief, or 
 other accident, hath lost the use of his reason. A lunatic is, indeed, 
 properly one that hath lucid intervals; sometimes enjoying his 
 senses and sometimes not ; and that, as was formerly supposed, 
 frequently depending on the changes of thp moon. But under the 
 general name non compos mentis, (which Sir Edward Coke says 
 is the most legal name,) are comprised not only lunatics, but per- 
 sons under frenzies, or who lose their intellects by disease ; those 
 that grow deaf, dumb, blind, not being born so. {Beverly's case, 
 4 Coke, 124. 1 Bl. Com. 304.) 
 
 Between this condition of the human mind and its brightest state 
 of unclouded intelligence, there are infinite grades, though perhaps 
 not easily marked by definite boundaries. But it is the unvarying 
 doctrine of the English books, that the man of mean understand- 
 ing, yea, though he incline to the foolish sort, is not prohibited to 
 make a testament. [iSwinb. 127, 8.) This ancient rule is thus 
 expressed by a late text writer on this subject, {Shelford on 
 Lunacy, 37,) and approved by the court of errors in Stewart v. 
 Lispenard, (26 Wend. 301.) "A person's being of weak under- 
 standing, so he be neither an idiot or lunatic, is no objection in 
 law to his disposing of his estate. Courts will not measure the 
 extent of people's understanding or capacities ; if a man, therefore, 
 be legally compos mejitis, be he wise or unwise, he is the disposer 
 of his own property, and his will stands as a reason for his actions." 
 {See also Jackson v. King, 4 Cowen, 217 ; Blanchard v. Nestle, 
 3 Denio, 42 ; Odell v. Buck, 21 Wend. 142.) 
 
 A lunatic, during the time of his insanity or the paroxysm of 
 the disease, cannot make a testament nor dispose of any thing by 
 10 
 
74 TESTAMENTARY CAPACITY— LUCID INTERVAL. 
 
 •will. " So strong is this impediment of insanity of the mind, that 
 if the testator make his testament, after this furor has overtaken 
 him, and while as yet it possesses his mind, although the furor, 
 after departing or ceasing, the testator recover his former under- 
 standing, yet does not the testament made during his former fit 
 recover any force or strength thereby." {Swinb. pt. 2, s 3, pi. 2. 
 Godol. pt. 1, ch. 8, § 2.) 
 
 The general principles in relation to .testamentary capacity are 
 well understood. The great difficulty consists in applying them 
 to the testimony in each particular case. On one occasion the 
 chancellor said that the testator must be of sound and disposing 
 mind and memory, so as to be capable of making a testamentary 
 disposition of his property with sense and judgment, in reference 
 to the situation and amount of such property, and to the relative 
 claims of the different persons who are or might be the objects of 
 his bounty. {Clark y. Fisher, 1 Paige, 173. Clark v. Sawyer, 
 2 Barb. Ch. 411 ; S. C.I Comst. 498. Marquis of Winches- 
 ter's case, 6 Cokeys R. 23, De7i v, Johnson, 2 South. R. 458.) 
 
 The sanity of a testator is presumed, until the contrary appears. 
 The burden of proof, as to mental capacity, lies on the party who 
 alleges insanity. {Jackson v. Van Dusen, 5 John. R. 144.) If 
 he succeeds in proving that the testator had been affected by 
 habitual derangement, then it is for the other party, who claims 
 under the will, to adduce satisfactory) proof that at the time of 
 making the will the testator had a lucid interval, and was restored 
 to the use of his reason. (2 Phil. Bv. 1th Lond. ed. 293. Jack- 
 son V, Van Dusen, 5 John. 144. Evans v. Thomas, 2 Hag. 438.) 
 
 Lord Thurlow, iu one case, observed that the evidence of a 
 lucid interval, after the proof of a general derangement at any 
 particular period, should be as strong, as when the object of the 
 proof is to establish derangement. This rule has been justly 
 questioned. It is no doubt true that when derangement has been 
 proved, a'lucid interval must be satisfactorily established. But 
 there appears to be no reason for requiring in the proof of these 
 sevef^l facts, precisely the ssime measure of evidence, or the same 
 degree of demonstration. It is possible that both facts may be 
 most satisfactorily established, though the proof in the one case 
 may, perhaps, not be so strong or demonstrative as in the other. 
 
TESTAMENTARY OAPACITY— LUCID INTEEVAL. 75 
 
 Insanitjj from its peculiar nature, admits of more easy and ob- 
 vious ptoof, than the existence of a lucid interval. The -wildness 
 and unnatural appearance of insanity can never be misunderstood; 
 but -whether light and reason have been restored, is often a 
 question of the greatest difficulty. (2 Phil. Ev. 1th ed. 294.) 
 Sir John Nicholl in White v. Dows, (1 Phill. R: 88,) very justly 
 observes " that it is scarcely possible to be too strongly impressed 
 with the great degree of paution necessary to be observed in ex' 
 amining the proof of a lucid interval ; but the law recognizes 
 acts done during such an interval as valid, and the law must not 
 be defeated by any overstrained demands of the proof of the fact;" 
 
 It is, perhaps, proper in this place to consider some of the 
 cases which have been decided on this branch of the subject. 
 It is undeniably true that a lunatic person may have clear or 
 calm iiitermissions of the disease. Such intermission is usually 
 denominated a lucid interval. During the quietness and freedom of 
 mind which occurs in such an interval, it is well settled that he 
 may make his will disposing of his property and appointing his 
 executors. The establishment of a lucid interval repels, for the 
 time being, the presumption of incapacity resulting from the 
 proof of insanity. The proof of such remission of the disease, as 
 well as the proof of the original incapacity; is often to be extract- 
 ed from contradictory testimony, mingled, it may be, with the 
 opinions and prejudices of the witnesses. These considerations 
 should inspire the court with caution, and admonish it to form its 
 judgment by facts proved and by acts done, rather than by the 
 judgments of others. {See remarks of Sir John Nicholl in 
 White V. Driver, supra ; Brogden v. Brown, 2 Adol. 441.) 
 
 One of the most remarkable cases on record, and which best 
 seems to illustrate the doctrine of a lucid interval, occurred 
 in England in 1809, in the case of Cartwright v. Cartwright, 
 1 Phillim. 90.) An abridgment of the case is essential in order 
 to present the principles decided. In that case it appeared 
 that the testatrix was early, in life affected with the disorder of 
 her mind; she was afterwards supposed to.be perfectly recovered, 
 and continued for several years to conduct a house and establish- 
 ment of her own, as a rational person ; but her habit and condition 
 of body, and her manner for several months before the date of her 
 
76 TESTAMENTAEY OAPAOITT-LUOID INTERVAL. 
 
 will, were those of a person afflicted with many of the worst symp- 
 toms of insanity, and continued so after making the will. She 
 was attended by her physician, who desired the nurse and other 
 servants to prevent her from reading and writing, as such occupa- 
 tion might disturb her head ; and, in consequence thereof, she was 
 for some time kept from the use of books, and writing materials ; 
 however, some time before writing the will, she became very im- 
 portunate for the use of pen and paper, and frequently asked for 
 them in a very clamorous manner. The physician, in order to 
 quiet and gratify her, consented that she should have them, telling 
 her nurse and other servants that it did not signify what she 
 might write, as she was not fit to make any proper use of them. 
 As soon as her physician had given permission, pen, ink and paper 
 were carried to her, and her hands, which had for some time been kept 
 constantly tied, were let loose, and she sat down at her bureau, and 
 desired her nurse and servants to leave her alone while she wrote. 
 They went into an adjoining room and watched her ; at first she 
 wrote upon several pieces of paper, and got up in a wild and furious 
 manner, and tore the papers and threw them into the fire one after 
 another. After walking up and down the room many times, in a 
 wild and disordered manner, muttering to herself, she wrote the 
 will. She inquired the day of the month, and an almanac was 
 given her by one of the nurses, and the day pointed out to her. 
 She then called for a candle to seal the paper, which was given to 
 her, and used by her for that purpose, although they used generally 
 to be cautioned not to trust her with a candle, and were forced to 
 hold it at a distance from her when she read the newspaper. The 
 survivor of the two witnesses to the transaction deposed, that in 
 her opinion the testatrix had not then sufficient capacity to be able 
 to know what she did, and that during the time she was occupied 
 in writing, which was upwards of an hour, she by her manner and 
 gestures showed many signs of insanity. The will was written in 
 a remarkably fair hand ; and without a blot or mistake in a single 
 word or letter ; and it was a proper and natural will, and con- 
 formable to what her affections were proved to be at the time, 
 and her executors and trustees were very discreetly appointed. 
 Two months after the writing of the will, in a conversation with the 
 mother of the parties benefited by the will, the testatrix mentioned 
 
TESTAMENTARY CAPACITY— LUCID INTEEYAL. 77 
 
 that she had made a will, and ordered her servant to bring it, and 
 she then delivered it to her mother, observing that there was no 
 need of witnesses, as the estate was all personal and the will in her 
 own handwriting. Sir W. Wynne pronounced the will to be the 
 legal will of the deceased, and further said that in his apprehension 
 the forming of the plan, and pursuing and carrying it into effect 
 with propriety and without assistance, would have been sufficient 
 to establish an interval of reason, if there had been no other evi- 
 dence ; but it was further affirmed by the recognition and delivery 
 of the will. From this sentence an appeal was interposed to the 
 high court of delegates, who affirmed the judgment of Sir William 
 Wynne. (1 Phillim. 122.) That very eminent judge, in the 
 course of giving sentence below, after remarking that the court 
 did not depend on the opinion of the witnesses, but on the facts to 
 which they deposed, delivered the following observations : 
 
 " The strongest and best proof that can arise as to a lucid inter- 
 val, is that which arises from the act itself of making the will ; 
 that I look upon as the thing to be first examined, and if it can be 
 proved and established that it is a rational act, rationally done, the 
 whole case is proved. What can you do more to establish the act ; 
 because, suppose you are able to show the party did that which 
 appears to be a rational act, and it is his own act entirely, nothing 
 is left to presumption in order to prove a lucid interval. Here is 
 a rational act, rationally done. In my apprehension, when you 
 are able completely to establish that, the law does not require you 
 to go further ; and the citation from Swinburn {pt. 2, § 3, pi. 14,) 
 states it to be so. The manner he has laid it down is, ' If a luna- 
 tic person, or one that is beside himself, at some times but not con- 
 tinually, makes his testament, and it is not known whether the 
 same was made while he was of sound mind and memory or not, 
 then in case the testament be so conceived as thereby no argument 
 of frenzy or folly can be gathered, it is to be presumed that the 
 same was made during the time of his calm and clear intermission, 
 and so the testament shall be adjudged good ; yea although it can- 
 not be proved that the testator useth to have any clear and quiet 
 intermissions at all, nevertheless I suppose, that if the testament 
 be wisely and orderly framed, the same ought to be accepted for a 
 lawful testament.' Unquestionably, (continues Sir Wm. Wynne,) 
 
78 TESTAMENTARY CAPACITY— LUCID INTERVAL. 
 
 there must be a complete and absolute proof that the party who had 
 so framed it, did so without assistance. If the fact be so that he 
 has done as rational an act as can be, without any assistance from 
 another person, what there is more to be proved I don't know, un- 
 less the gentleman could prove by any other authority or law, what 
 the length of the lucid interval is to be, whether an'hour, a day or a 
 month. I know no such law as that ; all that is wanting is, that 
 it should be of sufficient length to do the rational act intendedi I 
 look upon it, if you are able to establish the fact that the act done 
 is perfectly proper, and that the party who is alleged to have done 
 it was free from the disorder at the time, that is completely suffi' 
 cient." In accordance with the foregoing principles, Sir John 
 NichollS) in Scruhy v. Fordham, (1 Add<. 90,) adopts the general 
 rule that when a will is traced into the hands of a testator, whose 
 sanity is once fairly impeached, but of whose sanity or insanity at 
 the time of doing or performing some act,, with relation to that will, 
 there is no direct evidence, the agent is to be inferred rational, or 
 the contrary, from the character broadly taken, of the act. 
 
 In the case of McAdam v. Walker, (1 Dow, 178,) Lord Chan- 
 cellor Eldon mentioned that he had been concerned as counsel in a 
 cause where a gentleman who had been for some time insane, and 
 who had been confined till the hour of his death in a mad-house, had 
 made a will while so confined. The question was whether he was 
 of sound mind at the time of making this testament; It Was a will 
 of large contents, proportioning the difi"erent provisions with the 
 most prudent and proper care, with a due regard to what he had 
 previously done to the objects of his bounty, and in every respect 
 pursuant to what he had declared before his malady he intended to 
 have done. It was held that he was of sound mind at the time. 
 
 In the three last cited cases the act was not only done and com- 
 pleted by the testator himself, but the will was props?- and nat- 
 ural. That this is an important if not an indispensable ingredient 
 to establish the sanity of the testator, in cases of this nature, 
 may be inferred from the case of Clark v. Lear, (1 Philt. 119.) 
 In that case the will was written by the testator himself, and 
 with great accuracy, but was made in favor of a person to whom 
 he had no good cause whatever to give a benefit. It was held 
 that the act of IVsining such an instrument flirnished no proof of 
 
TESTAMENTARY CAPACITY— LUCID INTERVAL. 79 
 
 a lucid inteival. The result of the cases seems to authorize us 
 in saying, that proving that the testator drew his will without 
 assistance when the will appears to be regularly and orderly 
 written, and makes a proper and natural disposition of the estate, 
 80 as to conform to what may be supposed to be the affections and 
 wishes of a person in his situation, constitutes of itself evidence 
 of a lucid interval, a previous derangement having been shown. ^ 
 
 Those cases have carried the doctrine to its extreme length, 
 but they have never been overruled either in England or in this 
 country ; but on the contrary are recognized by elementary trea- 
 tises on both sides of the Atlantic, as good law. (2 Phil. JEv. 
 lih Land. ed. 295. 1 Wms. Ex'rs, 21 et seq. 2 Greenl. Ev. 
 § 689. DearCs Medical Jurisprudence, 528, 629. 1 Jarinan on 
 Wills, 67 et seq.) In a recent case in the ecclesiatical courts 
 at doctors commons, (in 1852,) Dr. Lushington, in delivering his 
 judgment in Bannatyne y. Bannatyne, (14 Eng. Law and Eq. 
 Rep. 595,) and referring to the opinion of Sir William Wynne, 
 in Cartwright v. Cartwright that a rational act done in a rational 
 manner was the strongest and best proof of a lucid interval, ob- 
 served, that he could not altogether subscribe to that opinion, 
 though he admitted that to a certain extent a rational act done in 
 a rational manner, though not the strongest and best proof of a 
 lucid interval, did contribute to the establishment of a lucid inter- 
 val. In Hix v. Whittemore, (4 Mete. 545,) the case of Cart- 
 wright V. Cartwright, is cited with approbation, though this pre- 
 cise point was not the question before the court. In Gombault v. 
 The Public Administrator, (4 Bradf. iSur. Rep, 239,) the case of 
 Cartioright v. Cartwright is cited, and the great influence of the 
 nature of the act, upon the evidence of a lucid interval is admitted, 
 •without however acceding to the entire length and breadth of the 
 views, on this subject, of Sir William Wynne. 
 
 The difficulty of proving a lucid interval is greater in the case 
 of permanent, proper insanity, than in the case of delirium. The 
 reason of this is given by Sir John Nicholl, in Brogden v. Brown, 
 (2 Adol. 445.) "In cases of permanent, proper insanity," he ob- 
 serves, " the proof of a lucid interval is matter of extreme diffi- 
 culty, for this among other reasons, namely, that the patient so 
 affected is not unfrequently rational to all outward appearances, 
 
80 LUCID INTERVAX— PARTIAL INSANITY. 
 
 •without any real abatement of his malady ; so that in truth and 
 substance, he is just as insane, in his apparently rational, as he is 
 in his visible raving fits. But the apparently rational intervals 
 of persons, merely delirious, for the most part, are really such. 
 Delirium is a fluctuating state of mind, created by temporary 
 excitement, in the absence of which, to be ascertained by the ap- 
 pearance of the patient, the patient is most commonly really sane. 
 Hence, in most instances in cases of delirium, the probabilites in 
 favor of a lucid interval are infinitely stronger in a case of deli- 
 rium, than in one of permanent, proper insanity ; and the difficulty 
 of proving a lucid interval is less in the same exact proportion in 
 the former than it is in the latter case. 
 
 The doctrine which has been hitherto considered has originated 
 in cases of general insanity. But the question will sometimes 
 arise, whether the existence of partial insanity will, under any 
 and what circumstances, be sufficient to invalidate a will. The 
 weight of authority on this subject seems to be that if the testa- 
 mentary act can be traced to the morbid delusion, and is the result 
 of that delusion, then the act is invalid, though the testator at the 
 time of making the will, was sane in other respects, upon ordinary 
 subjects. A brief reference to a few of the' cases on this subject 
 will be sufficient to illustrate the doctrine. 
 
 The first to which we will refer is that of Greenwood, (stated in 
 White V. White, hy Lard Erskijie, 13 Ves. 89.)- Mr. Green- 
 wood was bred to the bar, but becoming diseased, and receiving in 
 a fever a draught from the hand of his brother, the delirium tak- 
 ing its ground then, connected itself with that idea, and he con- 
 sidered his brother as having given him a potion with a view to 
 destroy him. He recovered in all other respects, but that morbid 
 image never departed ; and that idea appeared connected with the 
 will, by which he disinherited his brother, who was his only next 
 of kin. Two conflicting verdicts were had in the case, at common 
 law. The suit ended in a compromise. On the trial of the cause, 
 before Lord Kenyon, his lordship, in his charge to the jury, after 
 remarking on the conduct of the deceased towards his brother, 
 which had been detailed in the evidence, amongst other things 
 said: " It is for you to look at that conduct to his brother, to see 
 whether it is evidence of derangement of mind, or whether only 
 
TESTAMENTARY OAPAOITY— PAETIAL INSANITY. 81 
 
 an unreasonable prejudice which he indulged against his brother ; 
 if it be the last, that did not unfit him to make his last •will and 
 testament." " If you think that whenever that topic occurred to 
 him, it totally deranged his mind and prevented him from judging 
 of who the objects of his bounty should be, according to his own 
 will, then the will cannot stand, and then you will find for the de- 
 fendant ; but if you think he was of competent mind to make his 
 will, to exercise his judgment, however that might be disturbed 
 by passions which ought not to be encouraged, then the will ought 
 to stand." (3 Curteis, App. 30 et seq. 1 Jarman on Wills, 
 Perkins' ed. 60.) 
 
 The case of Dew v. Clark is a strong case upon the same 
 point. (1 Add. 279. 3 id. 79.) It must be considered as estab- 
 lishing the doctrine, that partial insanity will invalidate a will 
 which is fairly inferred the direct offspring of that insanity. There 
 the case pleaded by an only daughter in a responsive allegation, 
 in the prerogative court, in opposition to her father's will, was, 
 that besides laboring under mental perversion in some other par- 
 ticulars, especially on religious subjects, the deceased had an insane 
 aversion to his daughter, and was actuated solely by that illusion 
 to dispose of his property in the manner in which it was purported 
 to be conveyed by the contested will. This allegation was opposed 
 as inadmissible, on behalf of parties claiming under the will. But 
 Sir John NichoU admitted it, and after remarking that the case 
 set up was one of partial insanity, as to a particular person, and 
 approving the dictum in Greenwood's case, {supra) he observed 
 " that the burden of proof was upon the daughter, who contested 
 the will, and that she must understand that no course of harsh 
 treatment — no sudden bursts of violence — no display of unkind or 
 even unnatural feeling merely, can avail in proof of her allegation. 
 She can only prove it by making out a case of antipathy, clearly 
 resolvable into mental perversion, and plainly evincing that the 
 deceased was insane as to her, notwithstanding his general sanity." 
 After the evidence had been gone through on both sides, the same 
 learned judge delivered his judgment that the will being proved 
 to be the direct unqualified offspring of a morbid delusion, as to 
 the character and conduct of the daughter, being the very creature 
 of that morbid delusion, put into act and energy, the deceased 
 11 
 
82 TESTAMENTARY OAPAOITY— PARTIAL INSANITY. 
 
 must be considered insane at the time of making the will, and con- 
 sequently the will itself was null and void in law. (3 Add. 208.) 
 The subject of partial insanity was elaborately and ably discussed 
 by the learned judge, but we have not room for his observations. 
 This judgment was afterwards confirmed by the court of delegates. 
 A commission of review was then applied for, before the Lord 
 Chancellor (Lyndhurst,) but refused, (5 Russ. Ch. Cases, 163.) 
 
 The same doctrine has been 'acted upon in this state. Thus, in 
 Waters v. Cullen, (2 Bradf. Rep. 354,) the will of the testatrix 
 was successfully contested, and was set aside on the ground of 
 insanity. The testatrix died of delirium tremens, to which dis- 
 ease she had been subject more or less for some time before her 
 death. She gave her property, consisting of a house and lot in 
 the city of New York, to her children by her first husband, and 
 left her children by her last husband, penniless. She advanced 
 as a reason for this, that the property in question came from the 
 estate of her first husband. It appeared, also, that at the time 
 she made the will she believed that she had been poisoned by the 
 father of the children whom she left unprovided for. The surro- 
 gate thought that she labored under an insane delusion in both 
 respects, and though both the subscribing witnesses thought the 
 mind of the testatrix sound, the surrogate believing that she acted 
 under an insane delusion, as abovementioned, rejected the will. 
 
 In connection with the subject of partial insanity it may be 
 proper here to remark, that by the Roman law testaments might 
 be set aside as being inofficiosa, deficient in natural duty, if they 
 totally passed by (without assigning a true and sufficient reason,) 
 any of the children of the testator ; though if the child had any leg- 
 acy, however small, it was proof that the testator had not lost his 
 memory or his reason, which otherwise the law presumed. But our 
 law makes no such constrained supposition of forgetfulness or in- 
 sanity.- And therefore, though the heir or next of kin be totally 
 omitted, it admits no querela inofficiosi, to set aside such testament. 
 (2 Bl. Com. 503.) 
 
 But the ecclesiastical courts require evidence of full and entire 
 capacity in the testator to support a will which is inofficious, 
 and not consonant with the testator's natural affections and moral 
 duties ; and especially when it is obtained by the party materially 
 
TESTAMENTARY OAPAOITT— MOEAL INSANITY. 83 
 
 benefited by it. In such cases it is said there must be direct evi- 
 dence of instructions, especially if the testator's capacity is in any 
 respect doubtful. {Brogden v. Brown, 2 Add. 441, 449. 3 id. 
 207, 208.) The strictness of the rule of evidence in such cases is 
 by way of precaution, for our law considers that the natural affec- 
 tion of parents for their children, will prevent any abuse from the 
 unlimited power which is given of disposing of property by will. 
 And, therefore, there is no doubt that the testator may devise 
 all his estate to strangers and disinherit his children, if he pleases. 
 But the circumstance that the parent, without cause, has disinher- 
 ited his child, or that any other testator has bequeathed his estate 
 in a manner contrary to his moral duties and natural affections, will 
 always have great influence in establishing the fact of insanity. 
 On the other hand, the inference to be. derived from this circum- 
 stance, adverse to the testator's sanity, may be repelled by show- 
 ing a satisfactory reason for the testamentary disposition. 
 
 The subject of moral insanity is properly referable to this 
 branch of our discussion. The attention of the medical profession 
 was first directed to this form of malady by Pinel, about the com- 
 mencement of this century. The disorder is defined by some of 
 the writers as " consisting in a morbid perversion of the natural 
 feelings, affections, inclinations, temper, habits, and moral disposi- 
 tions, without any notable lesion of the intellect, or knowing and 
 reasoning faculties, and particularly without any maniacal halluci- 
 nation." ( Guy^s Forensic Med. 306. Dearis Med. Juris. 496.) 
 The subject was much discussed in Frere v. Peacoke, (3 Hagg. 
 527, 647.) And it was held that moral insanity or the perversion 
 of the moral feelings not accompanied with insane delusion, which 
 is the legal test of insanity, is not sufficient to invalidate a will. 
 
 It is principally in criminal cases that the question as to the 
 existence of this form of insanity arises. The consideration of this 
 class of cases does not fall within the scope of the present work, 
 and the cases are no further important, than as they afford illus- 
 trations of the general subject of mental disease. The subject was 
 much considered in this state, in Freeman v. The People, 
 (4 Denio, 9,) and on the subsequent trial of the said Freeman in 
 the Cayuga 0. and T. in, July, 1846. {See Report by B. F. Hall, 
 Esq.) The question, in 4 Denio, arose on the charge to the jury, 
 
84 TESTAMENTARY OAPACITT— OLD AGE. 
 
 on the preliminary trial, whether the accused was sufficiently sane 
 to be required to plead. The jury under the instruction of the 
 court, having found that the prisoner was sufficiently sane in mind 
 and memory to distinguish between right and wrong, and the court 
 having accepted the verdict and proceeded to try the prisoner, and 
 refused to charge the jury to find whether the prisoner was sane 
 or insane, the question amongst others,, was brought before the 
 supreme court, by writ of error. The decision of the supreme 
 court is no further important in this connection, than as it gees to 
 show that the courts recognize a state of partial insanity. Partial 
 insanity, says the judge, (p. 29,) is not by law necessarily an ex- 
 cuse for crime, and can only be so when it deprives the party of 
 his reason in regard to the act charged to be criminal. 
 
 There does not appear to be any reason for recognizing moral in- 
 sanity as a distinct disease. It may perhaps, without impropriety, 
 be treated by writers on medical jurisprudence, as a distinct disease, 
 or as one of the forms of mental alienation. For all legal pur- 
 poses, it is enough that the law recognizes a general and a partial 
 insanity. If the act done is proved to be referable to the influ- 
 ence of either, it is sufficient to invalidate it, whether it be a will 
 or a contract. 
 
 The statute requires that the surrogate, before recording any 
 will, or admitting it to probate, should be satisfied of its genu- 
 ineness and validity. (2 R. S. 61, § 26, as amended by the act 
 of 1837, ch. 460, § IT. 3 R. S. 149, § 66, 5tk ed.) In addition 
 to the classes already considered, of idiots 'and lunatics, there 
 are cases of mental imbecility arising from other causes, and 
 which may exist to such a degree as to constitute a state of un- 
 soundness of mind, within the meaning of the law, and to dis- 
 qualify the party for making a valid testamentary disposition of 
 his property. The persons falling under this head, and whose 
 cases most frequently are brought to the notice of the surrogate, 
 are those who have become disqualified by the infirmities of old age, 
 or who have made a wreck of their intellect, by drunkenness. 
 
 But old age does not, -per se, work a disqualification. There is 
 no period fixed by law, beyond which a man shall be conclusively 
 adjudged to be incapable of making a testament. In this respect, 
 governments have not guarded the second childhood of our race. 
 
TESTAMENTARY OAPACITT— OLD AGE. 85 
 
 with the same legislative care that they have protected the 
 heedlessness and inexperience of youth. They have wisely trust- 
 ed each case to the evidence and sound judgment of the courts. 
 
 This subject has often been brought to the test of , examination 
 in our highest tribunals. The case of Van Alst v. Hunter, 
 (5 John. Ch. 148,) is a leading case. The testator was between 
 90 and 100 years old, and infirm, at the time he made his will, in 
 which he gave the bulk of his property to his only surviving 
 daughter and a grandson. A bill was filed by the other heirs at 
 law to set aside the will on account of the incompetency of the 
 testator, who, it was alleged, was of unsound mind and memory at 
 the time, and under improper restraint. A feigned issue was 
 awarded by the chancellor, and the jury found in favor of the will. 
 The cause came before the chancellor on a motion for a second 
 trial, and on the equity reversed. After disposing of other mat- 
 ters, the chancellor (Kent) observed, that it is well understood, 
 that age alone will not disqualify a person from making a will, pro- 
 vided the testator has a competent possession of his mental fac- 
 ulties. Quoting from Swinburne, part 2, § 5, he says, " a man may 
 freely make his testament how old soever he may be, for it is not 
 the integrity of the body but of the mind that is required in tes- 
 taments." This has been the doctrine of the law in every age. 
 And after quoting, to the same effect, from the Roman law, he 
 adds, " The law looks only to the competency of the understand- 
 ing ; and neither age, nor sickness, nor extreme distress or debil- 
 ity of body will afi'ect the capacity to make a will, if suflicient in- 
 telligence remains." After reviewing the facts of the case, and 
 showing that the will itself was replete with just feeling and 
 rational calculation, he adds : " It is one of the painful con- 
 sequences of extreme old age that it ceases to excite interest, and 
 is apt to be left solitary and neglected. The control which the 
 law still gives to a man over the disposal of his property, is one 
 of the most efficient means which he has in protracted life to com- 
 mand the attentions due to his infirmities. The will of such an 
 aged man, ought to be regarded with great tenderness, when it 
 appears not to have been procured by fraudulent acts, but con- 
 tains those very dispositions which the circumstances of his situ- 
 ation and the course of the natural affections, dictated." 
 
86 TESTAMENTARY CAPACITY— OLD AGE. 
 
 This subject has often been fully considered in the surrogate's 
 court of New York, and the student will derive much instruc- 
 tion from the perusal of the sagacious observations of the learned 
 surrogate, whose decisions have been reported. We have not 
 room for any extended quotations from them. Thus in Weir v. 
 Fitzgerald, (2 Bradf. R. 42,) the will of a testator 76 years 
 of age, whose hearing was slightly affected, and sight very seriously 
 impaired, was admitted to probate. It was, in that case, very 
 properly held, that besides the mere formal proof of execution, 
 something more is necessary to establish the validity of a will 
 when, from the infirmities of the testator, his impaired capacity, 
 or the circumstances attending the transaction, the usual infer- 
 ence cannot be drawn from the formal execution. Additional 
 evidence is required that his mind accompanied the will, and that 
 he was cognizant of its provisions. This may be established by 
 the subscribing witnesses, or by evidence aliunde. 
 
 So, also, in Laycroft v. Simmons, (3 Bradf. Sur. Rep. 35,) 
 where the testator was eighty-nine years old, though of undoubted 
 capacity, yet because the will was made at the house of a son, who 
 took under the will the largest share of the estate, and who drew 
 the will for his father without the knowledge of the other heirs, it 
 was held that further proof of a recognition of the will should be 
 required, than* the bare fact of execution ; and such proof having 
 been given, the will was admitted to probate. 
 
 So, also, in Creely v. Ostrander, (3 Bradf. Sur. Rep. 107,) the 
 testator was in his eighty-fourth year, and enfeebled by disease. 
 In short he died the same day the will was executed, and only a 
 few hours after ; but his faculties were unimpaired, and proof was 
 required and given showing that the testator executed the will, and 
 exhibited mental activity, freedom and determination of volition. 
 
 There are cases of imbecility of mind, not arising from old age, 
 or drunkenness, which often present embarrassing questions on the 
 subject of testamentary capacity. The doctrine of the courts in 
 regard to this matter was most thoroughly discussed in the court 
 of errors in this state, in 1841, in the well known case oi Stewards 
 Ex'rs V. Lispenard, (26 Wend. 255.) The result of that case is, 
 that in the case of the will of a person of imbecile mind, a want of 
 consent by the testator to a particular will may be urged, from his 
 
TESTAMENTARY OAPAOITT— IMBECILITY. 87 
 
 inability to comprehend its effect and nature, from the dispositions 
 of the property being contrary to what naturally might have been 
 expected from the relative situation of the parties, the preferences, 
 partialities, and former testamentary declarations of the testator ; 
 the absence, at the making of the ■will, of those to whom he com- 
 monly looked for advice ; and generally from the surrounding cir- 
 cumstances, into which the court of probate will look with vigilance. 
 So, on the contrary, evidence of the general knowledge and under- 
 standing of the testator that he is the owner of property, and has 
 the power of disposing of it by will, of his previous declarations 
 and intent as to its disposition, of his gratitude and attachment to 
 the donee for long and persevering care and kindness ; and the will 
 itself being in a simple form, intelligible to the plainest mind, will 
 be sufficient to justify the court to pronounce it a genuine and 
 valid instrument. 
 
 The case also is a leading authority for the position, that mere 
 imbecility of mind in a testator will not avoid his last will and tes- 
 tament. Idiots, lunatics and persons non compos mentis are disa- 
 bled from disposing of their property by will, but every person not 
 embraced within either of the above classes, of lawful age and not 
 under coverture, is competent to make a will, be his understand- 
 ing ever so weak. Courts, in passing upon the validity of a will, 
 do not measure the extent of the understanding of the testator ; if 
 he be not totally deprived of reason, whether he be wise or unwise, 
 he is the lawful disposer of his property, and his will stands as a 
 reason for his actions. (To the same effect see Blanchard v. 
 Nestle, 3 Denio, 3T ; Scribner v. Crane, 2 Paige, 147 ; Clark v. 
 Sawyer, 2 Comst. A99.) 
 
 But while the law, in tenderness to human infirmity, allows the 
 weak as well as the strong the right of disposing of his property 
 by will, it is careful that he should be able to do more than to 
 answer familiar and usual questions, and that he should have a 
 disposing memory, so as to be able to make a disposition of his 
 property with understanding and reason ; and that is such a mem- 
 ory as the law calls sane and perfect memory. (Marquis of 
 Winchelsea's case, 1 Co. 23 a. Clark v. Fisher, 1 Paige, 173. 
 Ingraham v. Wyatt, 1 Hagg. 401, Bolton v. Barry, 1 Curt. 
 Eccl. Rep. 614.) 
 
88 TESTAMEKTARY OAPAOITY— DRTINKENNESS. 
 
 The remaining class under this head is that of the drunkard. 
 He that is overcome by drink, says Swinburne, (pt. 2, § 6,) during 
 the time of his drunkenness is compared to a madman, and there- 
 fore if he make his testament at that time, it is void in law, which 
 is to be understood, when he is so excessively drunk that he is 
 utterly deprived of the use of reason and understanding ; otherwise, 
 albeit his understanding is obscured, and his memory troubled, yet 
 he may make his testament being in that case. 
 
 In some of the cases which have been cited, the understanding 
 of the party was destroyed by reason of habitual intoxication. 
 Such a party can no more make a valid will than if the intellect 
 had been impaired by a direct visitation from God. The remarks 
 of Harrington, J., in Duffield v. Robison, (2 Harrington, 375, 
 883, 384,) are very appropriate to this subject, as well as just in 
 themselves. " Drunkenness," says the learned judge, " is itself a 
 species of insanity, and might invalidate a will made during the 
 drunken fit ; but long continued habits of intemperance may grad- 
 ually impair the mind, and destroy the memory and other faculties, 
 so as to produce insanity of another kind." 
 
 In the case of Ayrey and others v. Hill, in the prerogative 
 court of Canterbury, a distinction was pointed out between a lucid 
 interval succeeding a case of proper insanity, and the state of a 
 person, habitually addicted to intemperance, after the excitement 
 has passed away. Where actual, proper insanity is proved to have 
 shown itself, either perfect recovery, or at least a lucid interval, at 
 the time of making the instrument, must be shown, to entitle any 
 testamentary instrument to be pronounced for as a valid will. 
 Either of these, however, the last especially, is highly difficult of 
 proof, for the following reasons. Insanity will often continue, 
 though latent, so that a person may be in effect, completely mad 
 or insane, however, on some subjects, and in some parts of his con- 
 duct apparently rational. But the effects of drunkenness or 
 ebriety only subsists while the cause, the excitement visibly lasts ; 
 there can scarcely be such a thing as latent ebriety. Therefore, 
 in the latter case, proof of the absence of the excitenient, at the 
 time of the act done, or at least the absence of it in such degree 
 as to prevent intQxic£|,tion, is enough to show the act itself valid. 
 
 In this, state the chancellor formerly had the care and custody 
 
TESTAMENTARY OAPAOITT— DURESS. 89 
 
 of all idiots, lunatics, persons of unsound mind, and persons inca- 
 pable of conducting their own affairs, in consequence of ^habitual 
 drunkenness, and of their real and personal estate, so that the 
 same should not be wasted or destroyed. (2 R. S. 52.) This 
 duty, under the constitution of 1846, and the judiciary act, is now 
 principally devolved upon the supreme court. While a party is 
 under a commission granted by the court, on the return of a proper 
 inquisition, he is, prima facie, incapable of transacting business or 
 of doing any act which will bind his estate. In like manner con- 
 tracts made by him before the finding of the inquisition, which are 
 overreached by the retrospective finding of the jury, are presump- 
 tively void. (^UAmoreux v. Croshy, 2 Paige, 422.) The same 
 effect is given to a commission against a person as an habitual 
 drunkard. He cannot even in his sober moments, while the com- 
 mission is in force, make contracts which will bind himself or his 
 property. ( Walsworth v. Sharpsteen, 4 Seld. 388.) 
 
 In Stone v. Damont, (12 Mass. R. 488,) it was held by the 
 supreme court of Massachusetts, that a lunatic under guardianship 
 might make a will, if he was restored to "his reason, although the 
 letters of guardianship were unrepealed. In this state the prac- 
 tice seems to have been to suspend the commission in part, so as 
 to authorize the lunatic to dispose of his property by will, upon 
 evidence that he has so far recovered as to have a testamentary 
 capacity. {Matter of Burr, 2 Barb. Ch. R. 208.) 
 
 Section II. 
 Of persons incapable by restraint. 
 
 The revised statutes require that the surrogate, before directing 
 a will to be recorded, as a will of real estate, or admitting it to 
 probate, if it relates only to personal property, shall find that the 
 testator, at the time of making the will, was in all respects com- 
 petent, and not under restraint. (2 R. S. 58, as amended by 
 the act of 1837, ch. 460, § 18 ; ^ R. 8. 139, 150, bth ed.) Under 
 this head may be embraced all cases in which a will has been ob- 
 tained, by fear, fraud, importunity, undue influence, or by a female 
 under coverture. 
 
 A will executed under duress is void. (Jackson v. Kniffin, 
 12 
 
90 TESTAMENTARY OAPAOITY-DUEESS-FEAE-FEAUD. 
 
 2 John. 31.) A contract entered into by a party, by duress of 
 imprisonment or duress per minus, is void. To constitute duress 
 per minas, it is not essential that the party be threatened with 
 loss of life or limb ; or with mayhem ; but it is enough if he acts 
 from fears excited by threats of illegal imprisonment. {Foshay 
 V. Ferguson, 5 Hill, 154.) The will of a person under restraint, 
 either actual or by construction of law, is invalid. If it can be 
 demonstrated that actual fear was used to compel the testator to 
 make the will, there can be no doubt that although all formalities 
 have been complied with, and the party perfectly in his senses, 
 yet such a will cannot stand. {Mountain v. Bennett, 1 Cox, 355.) 
 The old writers say, if there be at the time of bequeathing, a fear 
 upon the testator, it could not be, as it ought to be libera voluntas. 
 Yet it must be understood that it is not every fear or a vain fear 
 that will have the eifect of annulling the will; but a just fear, 
 that is, such as that indeed, without it the testator had not made 
 his testament at all, or at least in that manner. A vain fear is 
 not enough ; but it must be such a fear as the law intends when 
 it expresses it by a fear that may cadere in constantem virum ; 
 as the fear of death, or of bodily hurt, or of imprisonment, or of 
 loss of all or most part of his goods, or the like, ( Godol. pt. 3, ch. 
 25, § 8 ; Swinh. pt. 7, § 2, pi. 7,) whereof no certain rule can be 
 delivered, but it is left to the discretion of the judge, who ought 
 not only to consider the quality of the threatenings, but also the 
 'persons, as well threatening as threatened ; in the person threat- 
 ened, the sex, age, courage, pusillanimity, and the like. {Id.) But 
 if the testator, afterwards, when there is no cause of fear, ratifies 
 and confirms the testament, it seems to be good in law. {Id. pi. 8.) 
 In like manner a will obtained by fraud is void, as much so, in- 
 deedj as if it was the result of fear. {Id.) Any undue advantage 
 taken of the testator by which he is induced to make a will which 
 he otherwise would not have made, vitiates the will. The proper 
 remedy in such a case is to contest the will before the surrogate, 
 when it is offered for probate, or to be proved as a will of real 
 estate. It may also be contested in a court of law, in an action by 
 the devisee of the real estate against the heirs or parties claiming 
 under them. In Bennet v. Wade, (2 Atk. 324,) Lord Hardwicke 
 said that it was settled and had been since the time of Lord Mac- 
 
TESTAMENTARY CAPACITY— IMPOETUNITY. 91 
 
 clesfield, that a .-will cannot be set aside in equity for fraud or im- 
 position ; for the reason that if it be a will of personal estate, the 
 remedy is in the ecclesiastical courts, and a will of real estate may 
 be set aside at law. In this state, however, Chancellor Walworth, 
 in Clarke v. Sawyer, (2 Barb. Ch. 411,) asserted the power of 
 the court, by the consent of parties, to make a decree declaring the 
 will void for fraud ; and he accordingly made such decree in that 
 case, which was affirmed on appeal, by the court of appeals. S.S. C. 
 2 Comst. 498.) 
 
 The cases of importunity generally occur in the testator's last 
 sickness, when he is in extremis, and in favor of some relative 
 near his person. In one case, a will was said to be obtained by 
 constraint, because the testator made his will in his sickness by 
 the over importunity of his wife. {Harker v. Newborn, Styles, 
 427.) According to Sir John Nicholl, [see Kindleside v. Harri- 
 son, 2 Phillim. 551, 2,) importunity in its correct legal acceptation, 
 must be in such degree, as to take away from the testator free 
 agency ; it must be such importunity as he is too weak to resist ; 
 such as will render the act no longer the act of the deceased ; not 
 the free act of a capable testator ; in order to invalidate the will. 
 
 In Blanchard v. Nestle, (3 Denio, 43.) the supreme court of this 
 state held that a person had a right by fair argument or persuasion 
 to induce another to make a will, and even to make it in his own 
 favor. The procuring a will to be made by such means is nothing 
 against its validity. In that case the alleged importunity was by 
 the daughter upon her father. The court cite with approbation 
 the case of Miller v. Miller, (3 Serg. 6^ Rawle, 267,) in which 
 the court say that any one has a right by fair argument and per- 
 suasion, or by virtuous influence, to induce another to make a will 
 in his favor. {And see also id. 270.) 
 
 There is a difference between control and undue influence; the 
 first approaches near to duress or fear ; the last is more difficult 
 to be described. If a wife by her virtues has gained such ascend- 
 ancy over her husband, that her pleasure is the law of his conduct, 
 such influence is no reason for impeaching a will made in her favor, 
 even to the exclusion of the residue of his family. Nor would it 
 be safe to set aside a will on the ground of influence, importunity 
 
92 TESTAMENTARY CAPACITY— UNDUE INFLUENCE. 
 
 or undue advantage, taken over Ms mind and conduct in the gen- 
 eral concerns of life, unless there should be proof that such influ- 
 ence was specially exerted to procure a will peculiarly acceptable 
 to her and prejudicial to others. {Small v. Small, 4 Greenl. 220.) 
 
 Very closely connected with importunity are the cases of undue 
 influence. This arises where a dominion has been acquired by a 
 person over another's mind of sufficient sanity {ov general purposes, 
 and of sufficient soundness and discretion to regulate his afi"airs in 
 general ; yet if the influence should be such as to prevent the ex- 
 ercise of such discretion, it is equally incompatible with a dispos- 
 ing mind. {Mountain v. Bennett, 1 Cox, 355.) But the influence 
 must be such as amounts to force and destroys free agency. It is 
 not enough that it is the influence of aS'ection and attachment. It 
 must not be the mere desire of gratifying the wishes of another. 
 To vitiate the act, the influence must be shown to have arisen from 
 threats, force or coercion, destroying free agency, and the boon to 
 have been obtained by such coercion, or by importunity that could 
 not be resisted, producing compliance for the sake of peace. 
 ( Gardner v. Gardner, 22 Wend, 526. Williams v. Goiide, 
 1 Hagg. 581. Allen v. The Public Administrator, 1 Brad. 378.) 
 
 A married woman was not permitted, by the New York revised 
 statutes, to make either a will of real or personal property. (2 K. S. 
 66, § 1, p. 60, § 21.) In this respect they difiiered widely from the 
 civil law, in which there was no distinction, a married woman being 
 AS capable of bequeathing as a feme sole. But anterior to the 
 revised statutes it was well settled that a married woman might 
 make a will of her separate personal property, which would be valid 
 in equity ; and it was noi; necessary that the marriage articles, or 
 the conveyance by or through which she acquired the property, or 
 by which it was settled to her own use, should express that she 
 should have powerto dispose of it by will : when it was established 
 that it was her sole property which she had a right to hold free 
 from the control or intermeddling of her husband, she was regarded 
 by the court of chancery as a feme sole in respect to such property, 
 and could dispose of it by will, or by a conveyance ititer vivos, in 
 the same manner which any other proprietor of such property could 
 do. In the absence of any restriction in the marriage articles, she 
 was free to adopt any method of disposing of it, which the law 
 
TESTAMENTARY CAPACITY— MARRIED WOMEN. 93 
 
 gave to other absolute owners, except that she was disabled from 
 making a valid covenant or agreement as to title. ( Wadham v. 
 Amer. Home Miss. Society, 2 Kernan, 418, per Denio, J. ; S. C. 
 10 Barb. 597. Peacock v. Monk, 2 Ves. sen. 190, 191, per Lord 
 Hardwicke. Fettiplace v. Gorges, 1 Ves. jun. 46. Wagstaff 
 V. Smith, 9 id. 500. 1 Sugd. on Powers, 210, 211. Jaques v. 
 Methodist E. Church, 17 John. 548.) 
 
 Separate personal property of the wife was unknown to the com- 
 mon law, which considered the husband to be the owner of all the 
 goods of the wife. ( Willard's Eq. Juris. 634 et seq. Clancy^s 
 Rights of Women, p. 1,2; per Denio in Wadhams v. Am. Home 
 M. Soc. supra.) It was for this reason that the law respecting 
 settlements to her sole and separate use, and as to titles arising 
 out of that doctrine, was available only in the court of chancery. 
 As all the personal estate in possession of a woman vested abso- 
 lutely in her husband at the moment of marriage, and all which 
 she acquired during coverture, immediately became his, the only 
 subject upon which a will of personal property, executed by her, 
 could operate, would be such as had been conveyed or settled to 
 her separate use, and perhaps her. contingent interest in her choses 
 in action not reduced to possession, and her chattels real. {Id. 
 per Denio, J.) 
 
 As the husband might waive the interest which the law bestowed 
 upon him, he might of course empower the wife to make a will to 
 dispose of her personal estate. His assent to his wife's will en- 
 titled the wife's executor to claim such articles of her personal 
 estate, which would have been her husband's, as administrator. 
 
 Prior to the revised statutes there was no legislative provision 
 respecting wills of personsQty by married women. The legislature 
 had re-enacted the material parts of the English statute of wills, 
 (34 and 35 Henry 8, ch. 5,) and which, as revised in 1830, in 
 effect made all wills of real estate of a married woman invalid. 
 (2 R. S. 56, § 1.) With respect to personal property, the revised 
 statutes introduced a new provision, by which a married woman 
 could not give or bequeath her personal estate by will. (2 R. S. 
 
 60, § 21.) 
 
 Experience soon showed that this restriction was neither dictated 
 by wisdom or sound policy. It led to the adoption of the act of 
 
94 TESTAMENTARY CAPACITY— MARRIED WOMEN. 
 
 1848, ch. 200, and the amended act of 1849, ch. 375, (3 E. iS. 289, 
 240, 5th ed.) By the first of those statutes it was enacted that 
 the real and personal property of any female, •who might thereafter 
 marry and which she should own at the time of the marriage, and 
 the rents issues and profits thereof, should not be subject to the 
 disposal of her husband, nor be liable for his debts, and should 
 continue her sole and separate property as if she were a single 
 woman. The second section enacted that the real and personal 
 property, and the rents, issues and profits thereof, of any female 
 then married, should not be subject to the disposal of the husband ; 
 but should be her sole and separate property as if she were a single 
 woman, except so far as the same might be liable for the debts of 
 her husband l;heretofore contracted. Though this statute broke 
 into the common law rule, and was a proceeding in the right di- 
 rection to ameliorate the social condition of married women, it did 
 not go far enough to effect its object. It did not confer upon 
 married women whom it recognized as the owners of their prop- 
 erty, the power of devising the same by will. It did not remove the 
 restriction which coverture at common law and under the revised 
 statutes, had interposed in this respect. But the second of these 
 statutes, that of 1849, went further. It enacted that any married 
 female might take by inheritance, or by gift, grant, devise or be- 
 quest, from any person other than her husband, and hold to her 
 sole and separate use, and convey and devise, real and personal 
 property, and any interest or estate therein, and the rents, issues 
 and profits thereof, in the same manner, and with the like effect 
 as if she were unmarried, and that the same should not be subject 
 to the disposal of her husband nor be liable for his debts. This stat- 
 ute has been held to be prospective, ana, so far as it may be sup- 
 posed to affect rights already vested in the husband by the mar- 
 riage, to be unconstitutional and void. {Holmes v. Holmes, 4 Barb. 
 295. White v. White, 5 id. 474. Snyder v. Snyder, 3 id. 621. 
 Perkins v. Cottrel, 15 id. 446. Westervelt v. Gregg, 2 Ker- 
 nan, 202;) 
 
 There are but few reported cases arising under the statute of 
 
 1849, which concern the ofGice of the surrogate. As married 
 women are by the act, competent to devise or bequeath real and 
 personal property in the same manner and with the like effect as 
 
DISQUALIFICATION FEOM CRIMES. 95 
 
 if they were unmarried, it is the duty of the surrogate, on proof 
 of the due execution, to admit the -will to probate, leaving the 
 question as to what passes under it, for future construction. The 
 power to make a will relates to the personal capacity and the pro- 
 bate ; the right to dispose of certain property relates to the effect 
 of the instrument when proved, and its construction. ( Water v. 
 CuUen, 2 Bradf. iSur. R. 354. Van Wert v. Benedict, 1 id. 114.) 
 
 Wills made under a power, must be executed with the same 
 formalities and be proved in the same manner as proper wills. 
 They must be proved before the surrogate ; but that officer has 
 nothing to do, as a court of probate, with the question whether the 
 power was well executed or not, or whether it authorizes the will, 
 or in fact exists at all. This subject was fully considered by the 
 surrogate of New York, in Van Wert v. Benedict, (1 Bradf. 114,) 
 and the present practice of the English courts in testamentary 
 cases approved. 
 
 It can scarcely be necessary to add that the rules which have 
 already been considered as to capacity, are applicable, and that the 
 circumstances which will in other cases invalidate the instrument, 
 such as fear, fraud, undue influence, and the like, will have the 
 same effect on the will of a married woman, as upon one made by 
 other parties. If, then, such will be made in favor of the husband, 
 as it may be, it will be void, provided it is brought about by the 
 exercise of undue influence and marital authority, contrary to the 
 real wishes and intentions of the wife. {Marsh v. Tyrrell, 2 Hagg. 
 84. Mynn v. Robinson, id. 169. Burdick v. Gibbs, 3 John. 
 Ch. i2. 528.) 
 
 Section III. 
 
 Of the persons disqualified on account of conviction for crime. 
 
 At common law, all traitors and felons were incapable of mak- 
 ing a will, from the time of their conviction ; for then their goods 
 and chattels were no longer at their own disposal, but forfeited to 
 the king. (2 i5?A. Com. 499.) This incapacity was also extended 
 to a felo de se, and to outlaws, so long as the outlawry subsisted. 
 {Id.) It was even doubted whether a person excommunicated 
 could make a will ; but that was removed by the statute 53 Geo. 
 
96 CONVICTION OF FELONY. 
 
 3, ch. 127, the third section of which declared that persons excom- 
 municated should incur no civil incapacity whatever. 
 
 In this state, the law is, in a great degree, changed in all the 
 above respects. Outlawry is abolished in all cases except on a 
 conviction for treason. (2 R. S. 744.) As we have no church es- 
 tablished by law, so excommunication from a church organized by 
 voluntary association, works no civil disability. 
 
 By the constitution of the United States it is declared that no 
 attainder of treason shall work corruption of blood, or forfeiture, 
 except during the life of the person attainted. {Const, art. 3, 
 § 8, suhd. 2.) By the act for the punishment of certain crimes 
 against the IJnited States, passed April, 20, 1790, ch. 9, § 24, for- 
 feiture of estate and corruption of blood were wholly abolished. 
 
 The constitution of this state adopted in 1777, prohibited all 
 acts of attainder after the end of the revolutionary war, and the 
 constitution of the United States prohibits the several states from 
 passing any bill of attainder. {Const, art. 1, § 10.) But the 
 constitution and laws of this state recognize the crime of treason 
 against this state, and provide for its punishment, and for forfeit- 
 ure as incident to outlawry on conviction. Such conviction works 
 forfeiture of the lands of the convict during life, and of his goods and 
 chattels absolutely. But the same act abolishes all forfeitures in 
 the nature of deodands, and in cases of suicide, and when any 
 person shall flee from justice. (2 R. S. 701, § 22.) 
 
 Thus far we have considered the incapacity to make a will as 
 arising from the forfeiture for crime. It is supposed that there 
 is another class of cases where the incapacity arises from a differ- 
 ent cause. The revised statutes define /efowy to mean an offense 
 for which the offender, on conviction, shall be liable by law to be 
 punished by death, or by imprisonment in a state prison, and no 
 other. (2 R. S. 702, § 30.) They have substituted for the CQja- 
 mon law consequences of a conviction for a felony, certain dis- 
 qualifications. Thus a person sentenced to imprisonment in a 
 state prison for life, is thereafter to be deemed civilly dead. 
 (2 R. S. 701, § 20.) A sentence of imprisonnient in a state prison 
 for any term less than for life, suspends all the civil rights of the 
 persons so sentenced, and forfeits all public offices and all private 
 
rOEM, &0. 01" MAKING A WILL. 97 
 
 trusts, authority or power, during the term of such imprisonment. 
 {Id. § 19.) In O'Brien v. Hagan,, the New York superior court de- 
 cided that the effect of the above provision was to abate any suit 
 which might, at the time of such conviction, be pending in his 
 favor. They declined, however, to give an opinion, whether a 
 party in that condition could execute a valid release. It would 
 seem, on principle, that he could not. {Miller v. Feckle, 1 Par- 
 ker's Cr. Rep. 374, 377.) The right to make a will is doubtless 
 one of the civil rights which is suspended by sentence of impris- 
 onment in a state prison. If such convict be at the time of such 
 sentence, an executor, administrator or guardian, the trust is 
 forfeited, and others may be appointed in his place. 
 
 CHAPTER III. 
 
 OP THE FORM AND MANNER OF MAKING A WILL OR CODICIL, 
 
 Wills and codicils are of two sorts, written and nuncupative. 
 Written wills are also of two sorts, such as relate to real property, 
 called devises, and such as relate to personal property, sometimes 
 called a testament. Both of the latter kind are with propriety 
 called a last will and testament. Formerly there was a striking 
 difference between the formalities required for a devise of lands 
 and those necessary for a valid will of personal property. It is 
 probable that the several states have prescribed different formal- 
 ities in this respect. In this state, until the revised statutes of 
 1830 went into operation, the law was substantially like the Eng^ 
 lish law, at the time of the separation of this country from Great 
 Britain. But by those statutes, both kinds of written wills, 
 whether relating to real or personal estate, were put upon the 
 same footing as to the formalities of execution and attestation. 
 In England, by the act 1 Vict. ch. 26, which took effect in this 
 respect in 1838, the same formalities of execution and attestation 
 are necessary, whether the instrument disposes of real or of per- 
 sonal estate. The provisions of our statute for the valid execution 
 of a will or codicil of real or personal, property, or both,. are that 
 it shall be executed in the following manner : 1. It shall be sub- 
 13 
 
98 FORM OF MAKING A WILL. 
 
 scribed by the testator, at the end of the will. 2. Such subscrip- 
 tion shall be made by the testator in the presence of each of the.- 
 attesting witnesses, or shall be acknowledged by him to have been 
 so made, to each of the attesting witnesses. 3. The testator, at 
 the time of making such subscription, or at the time of acknowl- 
 edging the same, shall declare the instrument so subscribed, to be 
 his last will and testament. 4. There shall be at least two attest- 
 ing witnesses, each of whom shall sign his name as a witness, at 
 the end of the will, at the request of the testator. (2 R. S. 63, 
 § 40 ; p. 68, § 71, as to codicil.) The statute is peremptory, and 
 nothing can be more explicit. Four ingredients as declared, must 
 enter into, and together constitute one entire, complex substance, 
 essential to the complete execution, (jper Nelson, Ch. J., in Rem- 
 sen V. Brinkerkoof, 26 Wend. 381.) 
 
 It is proposed to notice these formalities in the order in which 
 they are named, and to bring to the notice of the reader the adju- 
 dications which have occurred in relation to them respectively. 
 
 Section I. 
 
 Of the statutory requirements for the making and attestation 
 of a will or codicil. 
 
 Neither the signature or seal of the testator was necessary, at 
 common law, to a will of personalty, whether the instrument was 
 in the handwriting of the testator or in that of another man. All 
 that was required was evidence satisfactory to the court, that the 
 instrument propounded as a will, contained the final testamentary 
 disposition of the testator's personal estate. With regard to a 
 will of lands, it was otherwise ; the English statute of wills, and 
 that of this state previous to the revised statutes, requiring that 
 it should " be signed by the party making the same, or by some 
 other person in his presence, and by his express direction." 
 
 Questions at an early day arose as to what amounted to a sign- 
 ing by the testator. It was decided that a mark was suflScient, 
 and that notwithstanding the testator was not shown to be unable 
 to write. {Baker v. Dunning, 8 Add. ^ Ellis, 94. Jackson v. 
 Van Dusen, 5 John. 144.) It was held also, as well in the courts 
 of England as here, that the writing of the name of the testator 
 
FORM OF MAKING A WILL. 99 
 
 in the body of the will, if written by himself, with the intent of 
 giving validity to the will, was a suflScient signing, within the 
 statute. ( Tonnele v. Hall, 4 Comst. 145, per Jewett. 1 Jarman 
 on Wills, Perkins' ed. 114, and notes?) 
 
 Thus, says Jewett, J., in the same case, the old law stood, and 
 the mischief of it was that, as it was unnecessary for the testator 
 to have adopted the instrument after it was finished, by actually 
 signing the same at the close of the will, it did not denote, clearly 
 that he had perfected and completed it. To remedy this evil and 
 to prevent future controversy as to whether a will signed by the 
 testator, in any other part of the instrument than at the end, de- 
 noted a complete and perfect instrument, the revised statutes above 
 referred to, require that "itjhall be subscribed by the testator at 
 the end of the will." And the statute of Victoria 1, oh. 26, passed 
 in 1837, requires that " the will shall be signed at the foot or end 
 of the will," and to avoid the misconstruction which had prevailed 
 as to "signing," the words, "subscribed at the end of the will," 
 are used in our statute, and the words " signed at the foot or end 
 of the will," are used in the statute of Victoria. 
 
 In the case just cited, an instrument propounded as a will con- 
 sisted of eight unfolded sheets or pieces of paper, securely attached 
 together at the ends. The writing of the will commenced on the 
 first and was continued on the four succeeding sheets, where it was 
 brought to a close by the usual attestation clause, and was sub- 
 scribed by the testator and the witnesses. On one of the sheets 
 following the signature was a map not signed by the testator or 
 the witnesses. The testator owned houses and lots in the city of 
 New York which he disposed of to his widow and among his de- 
 scendants. In the body of the will the. lots were designated by 
 numbers, with a reference to the map as follows : " which said lots 
 are designated on a certain map now on file in the office of the 
 register of the city and county of New York, (a copy of which,, on a 
 reduced scale, is hereto annexed.) entitled map of the property," 
 (fee. particularly describing the map on file. It was held by the 
 court of appeals of this state that the will was subscribed by the 
 testator at the end of the will, within the meaning of the statute, 
 and that the execution thereof was valid. 
 
 In this case the paper referred to was treated in the same way 
 
100 SIIBSOEIPTION OF TESTATOE. 
 
 as if it had been actually inserted in the body of the will at the 
 place where it was referred to therein. The subscription of the 
 testator and the attestation of the witnesses, being at the close of 
 the description and disposing parts of the will, were thought to be 
 a full compliance with the statute, notwithstanding the schedule 
 referred to in the body of the will followed the subscription and 
 attestation. 
 
 We have seen that, under the former statute, the testator might 
 execute the will by his mark ; the statute requiring that the will 
 should be signed by the testator, or by some other person in his 
 presence and by his direction. The present statute requires that 
 the will shall be subscribed by the testator at the end of the will ; 
 thus implying that the subscription must be the personal act of 
 the testator. But it is obvious that the legislature did not intend 
 to abolish the former practice entirely, for in the 41st section 
 (2 R. S. 64) it is required that every witness who shall sign the 
 testator's name to any will by his direction, shall write his own 
 name as a witness to the will. {See Chaffee v. Baptist Miss. Con. 
 10 Paige, 91 ; Butler v. Benson, 1 Barb. S. C. R. 527 ; Keeney 
 V. Whitmark, 16 id. 141.) 
 
 This necessarily implies that a party may make a will who can- 
 not, or who for some cause omits to subscribe his name ; and whose 
 name is thus subscribed by another by his direction. 
 
 The second requirement is that such subscription shall be made 
 by the testator in the presence of each of the attesting witnesses, 
 or shall be acknowledged by him, to have been so made, to each of 
 the attesting witnesses. We have seen that putting his mark to 
 his name when written by another by his direction, is a subscrib- 
 ing within the meaning of the statute. 
 
 But suppose this subscription by the testator was made by him 
 in private, and not in the presence of witnesses, the statute re- 
 quires that the fact that the subscription was made by him, must 
 be acknowledged to have been so made to each of the attesting 
 witnesses. This acknowledgment by the testator is an independent 
 requisite, and is not to be confounded with the declaration required 
 by the next subdivision, that the instrument so subscribed is his 
 last will and testament. {Lewis v. Lewis, 1 Kern, 220.) The 
 
SUBSOKIPTION— ATTESTATION. IQl" 
 
 acknowledgment of the testator that the instrument is his last -will 
 dnd testament, and requesting the witnesses to attest it as such, is 
 not a substitute for the acknowledgment of his subscription. All 
 the statutory requirements must be fully complied with. {Chaffee 
 V. The Baptist Miss. Conv. 10 Paige, 85. Remsen v. Brink- 
 erhoff, 26 Wend. 331.) 
 
 It has been shown that a party, blind or deaf and dumb, if in other 
 respects qualified, can make a valid testamentary disposition of his 
 property. In such case, the request to another to write his name 
 and the acknowledgment of his subscription to each of the wit- 
 nesses, if not made by oral discourse as it cannot be in the case of 
 the dumb, must be in writing, or by such signs as will be intelli- 
 gible to the witnesses. ( Whitbeck v. Patterson, 10 Barb. 610.) 
 It has been sometimes made a question whether the subscription 
 must be made by the testator in the presence of both the witnesset, 
 or when not made in their presence, must be acknowledged in the 
 presence of both at the same time, or whether it may be acknowl- 
 ■edged before one at one time, and another at a different time. Mr. 
 Justice Hand, at special term, in Butler v. Benson, (1 Barb. S. C R. 
 583,) intimates that the acknowledgment may be made to the wit- 
 nesses separately, or that he may subscribe and publish in the 
 presence of one, and acknowledge and publish before anothgr. 
 But this point was not before the learned judge in that case, and 
 it is believed that his dictum, though entitled to much respect, 
 cannot be supported. It is quite obvious that the execution of the 
 will by the testator and the attestation by the subscribing wit- 
 nesses are all concurrent acts, and to be done at the same time. 
 The particular order in which these requirements are fulfilled, is 
 ' not important. There is necessarily some interval between the 
 different acts, though all in contemplation of law are done at the 
 same time. {Doe v. Roe, 2 Barb. S. C. R. 205. Seguine v. Se- 
 guine. Id. 394, 5, per Edmonds, J. Keeney v. Whitmarsh, 16 
 id. 141.) The policy of the law, which is to prevent fraud and de- 
 ception, would be defeated by executing a will at different times, 
 and by piecemeal. 
 
 By the English statute, the testator is required to make his 
 sifnaturo at the foot or end of the will, or to acknowledge that he 
 had so made it, in the presence ef two or more witnesses, present 
 
102 ATTESTATION— PUBLIOATION. 
 
 at the same time. {Section 9 of the act of 1 Vict. 26.) Under 
 this'statuteithas been held that the act is not complied with 
 unless both witnesses shall attest, and subscribe after the test- 
 ator's signature shall have been made or acknowledged to them, 
 when both are actually present at the same time. {Cooper v. 
 Bockett, 3 Curties, 659, per Sir Henri/ Frost. 1 Wms. Ex'rs, 
 75, 4:th Am. from the last Land, ed.) This phraseology is slightly 
 different from our statute. It requires, in express terms, that both 
 witnesses must be present at the same time. Our statute requires 
 the same thing by necessary implication, unless the testator may 
 be allowed to subscribe twice. As he is to subscribe or acknowl- 
 edge, in the presence of each of the attesting witnesses, they both 
 must be present at the time he subscribes or acknowledges. 
 
 The usual mode of making the acknowledgment is by a decla- 
 jation to the witnesses that the subscription is his. It has been 
 held that when the testator produces the will, with his signature 
 visibly apparent on the face of it, to the witnesses, and requests 
 them to subscribe it, this is a sufficient acknowledgment of his 
 signature. {Gage v. Gage, 3 Curties, 451.) 
 
 The third requirement is, that the testator, at the time of mak- 
 ing such subscription, or at the time of acknowledging the same, 
 must declare the instrument, so subscribed, to be his last will and 
 testament. Publication was never required, at common law, of a 
 will of personal estate ; and it seems doubtful, whether any pub- 
 lication, as distinguished from attestation, was necessary for a 
 will of lands, under the statute of frauds. {Doe v. Purdett, 
 4 Adol. Si" El. 14.) Be that as it may, the present English stat- 
 ute requires no other proof of publication, than the execution of ' 
 the will by the testator, according to the form of the statute. 
 But our statute evidently goes further. The courts have held 
 the parties to a strict compliance with this part of the statute. 
 Thus in Lewis v. Lewis, (1 Kernan, 220,) the testator presented 
 the instrument to the witnesses and said, " I declare the within to 
 be my free will and deed." This was held not to be a sufficient 
 declaration that the instrument was his last will and testament. 
 (*Sise also Brinckerhoof v. Remsen, 8 Paige, 488 ; tS". C. in error, 
 26 Wend. 325.) This declaration must be made in the presence 
 
ATTESTATION— REQUEST TO WITNESSES. 103 
 
 of two witnesses. It is not sufficient that he so declares in presence 
 of one witness, and afterwards signs in the presence of two witnesses 
 who subscribe it as witnesses, at his request. [Seymmir v. Van 
 Wyck, 2 Seld. 120.) But when a testator, in the presence of the 
 subscribing witnesses, dictated the provisions of a testamentary- 
 paper, read it aloud after it was drawn, signed it, and then re- 
 quested them to give it their attestation, it was held by the learn- 
 ed surrogate of New York, that the substance of what the statute 
 required, was performed. This, he thought, was a sufficient testa- 
 mentary declaration. {Carle v. Underhill, 3 Bradf. iSur. R. 101.) 
 
 It has been shown, that the precise order in which the transac- 
 tions of making a will occur, is not very important. In one case, 
 when the testator made the testamentary declaration, before he 
 actually subscribed the will, but on the same occasion, it was held 
 to be a substantial compliance with the act. {Riehen v. Hicks, 
 3 Bradf. Sur. R. 353.) Nor is the form of much importance, 
 provided the ideas be properly expressed. When the testament- 
 ary declaration and the request to the subscribing witnesses to 
 attest the instrument, were made by means of questions put 
 by the counsel attending the execution of the will, and the affirm- 
 ative response of the testator, it was held to be a satisfactory 
 compliance with the statute. {Tunison v. Tunison, 4 Bradf. 
 Sur. R. 138.) 
 
 So when the testator, after subscribing his will, went to a store 
 where were three persons, whom the draftsman, in the presence of 
 the testator, requested to sign an instrument which he said was 
 the testator's last will and testament. He then read the attestation 
 clause, and' asked the testator if that was his last will and testa- 
 ment, and the testator said it was. The three persons then signed 
 it as witnesses. The testator did not request the witnesses to 
 subscribe it as such, but it was held by the supreme court in the 
 7th district, that the reading the attestation clause in the will, in 
 the presence of the testator as well as of the witnesses, followed 
 by the affirmation that it was his last will and testament, was a 
 complete fulfillment of the requirement of the act. ( Whitbeck v. 
 Patterson, 10 Barb. 608.) It is not expressly stated, but it 
 is fairly to be inferred that the attestation clause recited in the 
 usual form, the performance by the testator of all the requirements 
 
104 NUMBER OF WITITESSES. 
 
 of the Statute ; and that this was read in the hearing of the testa- 
 tor and the -witnesses. 
 
 The 4th and last requirement under consideration is that there 
 shall be at least two attesting witnesses, each of whom shall sign 
 his name as a witness, at the end of the will, at the request of the 
 testator. 
 
 Formerly wills and codicils of personal property need not have 
 any witnesses of their publication ; custody was a sufficient publi- 
 cation of them. Nor did the law require such a will to have sub- 
 scribing witnesses to give it force and effect. {Brett v. Brett, 
 3 Add. 224.) It was merely required by the English ecclesiasti- 
 cal courts, in a will not attested by subscribing witnesses, that an 
 affidavit should be made by two persons to' the signature of the 
 testator to the will {id.) or other proof that it was the testament 
 of the testator. But if there was an attestation clause at the foot 
 of the testamentary paper, the courts held that the natural infer- 
 ence was that the testator intended to execute it in the presence 
 of witnesses, and therefore, till such execution, it was incomplete- 
 {Scott V. Rhodes, 1 Phill. 19. Watts v. The Public Adminis- 
 trator, 2 Wend. 168.) Still the presumption against the paper, 
 as a complete will, was slight, and might be rebutted by slight 
 circumstances. With respect to a will of real estate, we have seen 
 that the former statute, like the English statutes of Henry 8, from 
 which it was principally taken, required that the instrument should 
 be in writing, and signed by the party making it, or by some other 
 person in his presence, and by his express direction ; and be at- 
 tested and subscribed in the presence of the testator, by three or 
 more credible witnesses. {R. L. o/1813, p. 364.) 
 
 The revised statutes have put both kinds of wills upon the same 
 footing ; and instead of three witnesses, have required two only, and 
 have pointed out the manner in which they shall attest the will. 
 
 As a matter of precaution the statute requires that each witness 
 shonld write opposite to his name his respective place of residence. 
 This requirement is merely directory, and the omission to do so, 
 does not invalidate the attestation, but only subjects the default- 
 ing witness to a penalty of fifty dollars. (2 R. S. 64, § 41.) 
 
 A variety of questions have already arisen under this branch of 
 the statute, and it is probable that others will be started hereafter. 
 
SUBSOKIPTION OF WITNESSES. 105 
 
 It has sometimes been made a question, -whether a person too 
 illiterate, or in other respects unable to write his own name, could 
 be a subscribing witness to a will ; or in other words, whether a 
 subscribing witness could make his mark to his attesting signature, 
 instead of signing his name, as the statute seems to require. Un- 
 der the former law it was held in 1809, by the supreme court, that 
 the signing by an attesting witness by his mark was suflScient. 
 {Jackson v. Van Dusen, 5 John. 144.) The statute under which 
 that decision was made required the will " to be attested and sub- 
 scribed by three or more credible witnesses," &c. The present 
 statute in speaking of the attestation by the witnesses says that 
 each shall sign his name as a witness. It had long been held that 
 though the testator was required to sign the will, the making of 
 his mark was a sufficient signing. There is a strong implication in 
 the language of the 41st section that the signing mentioned in the 
 4th subdivision of § 40, may be by making his mark, except in the 
 single case where the subscribing witness is the one who by the 
 direction of the testator signed the name of the testator to the will. 
 In this latter case the 41st section (2 R. S. 64) requires that 
 such witness shall write his own name as a witness to the will. 
 If he was able to write the testator's name to the will, he was 
 certainly able to write his own, and it was not unreasonable 
 that he should be required to do it. The statute, however, does 
 not render the attestation of the will invalid, if the witness fails 
 to comply with this provision ; but merely inflicts upon the wit- 
 ness a penalty for his disobedience of the statutory requirement. 
 In Campbell v. Logan, (2 Bradf. R. 90, 97,) the surrogate ex- 
 pressed some doubts on this question, but at the same time, held 
 a will to be well attested, when one of the witnseses signed his own 
 name and held and guided the handi of the second witness, while 
 the name of the latter was signed. The surrogate thought that 
 here was a physical participation of the witness in the act of sign- 
 ing his name, which amounted to a compliance with the require- 
 ment of the statute. The difference between such a signing, and 
 making a mark to the name already written by another, is not a 
 difference in principle, but in the degree of participation of -the 
 witness in the act of signing. If the first mode was valid, as it 
 doubtless was, the second could not be invalid. 
 14 
 
106 SUBSOEIBIN& WITNESSES. 
 
 The former statute required the signing by the attesting wit- 
 nesses to be in the -presence of the testator. This provision is 
 omitted in the revised statutes, and does not seem any longer to be 
 necessary. But Hand, J., in Butler v. Benson, (1 Barh. S. C. R. 
 530,) inclined to think such signing in presence of the testator 
 was still required. The object.of the rule was to prevent impo- 
 sition by changing the paper ; and there is still another object, 
 under the present law, to enable the testator to see or know that 
 the witnesses of his own selection, fulfill the duty which he soli- 
 cited them to perform. But the better opinion seems to be, that 
 the legislature by dropping that requirement, purposely intended 
 to dispense with it, in the execution of wills. {Ruddon v. McDon- 
 ald, 1 Bradf. Sur. R. 352. 4 Kent's Com. 515. Lyon v. Smith, 
 11 Barb. 124.) It is, at common law, required of a subscribing 
 witness that he should attest the instrument which he is called to 
 see executed, at the time it was executed. The execution by the 
 parties and the subscribing by the witness, are considered as 
 parts of the same transaction. Although the witness was present 
 and saw an instrument executed, if he did not subscribe it at that 
 time, but did afterwards, without the request of the parties, he is 
 not a good attesting witness. {Hollenbeck v. Fleming, 6 Hill, 
 305. Henry v. Bishop, 2 Wend. 575. Lyon v. Sm,ith, supra.) 
 But the common law does not require the witness to subscribe in 
 the actual presence of the parties who have executed the instru- 
 ment, and as the statute has dispensed with it in the case of wills, 
 by being silent on the subject, it is no longer, in. this state, an 
 indispensable requirement. It is, however, still retained, in the 
 1st Victoria, ch. 26, § 9, notwithstanding the omission of it was 
 recommended by the real property commissioners. 
 
 It seems unnecessary to notice the cases under the former law. 
 As nearly thirty years have elapsed since the rule was changed, it 
 is not probable that any event will arise calling for the application 
 of the old cases on this subject. The doctrine of real and con- 
 structive presence, which often created doubtful questions, is no 
 longer of any practical consequence. 
 
 The statute requires that the subscribing witnesses should be- 
 come such at the request of the testator. Various questions have 
 
EEQTJEST OE TESTATOR TO WITNESSES. 107 
 
 arisen under this brancli of the statute. In Rutherford v. Ruth- 
 erford, ejectment was brought by the plaintiff as heir, against the 
 defendant, claiming as devisee under the will of the ancestor of the 
 parties. The question was as to the valid execution of the will 
 of the ancestor, for if that was established the plaintiff could not 
 recover as heir. The case turned upon the question whether both 
 the witnesses signed at the request of the testator. With respect 
 to one of them the evidence of such request was positive and un- 
 equivocal. With respect to the other, a request was sought to be 
 inferred, from the fact that the testator desired the witness to be 
 sent for to attest the execution of his will, and from a request to 
 such witness by another person, in the testator's presence ; it was 
 held by the supreme court, that the question whether the requisite 
 request was made ought to be submitted to the jury ; and because 
 the circuit judge inferred such request and nonsuited the plaintiff, 
 the supreme court set aside the nonsuit with a view of submitting 
 the question to the jury, who they admit might draw that infer- 
 ence. The case is an authority to prove that the request of the 
 testator may be inferred from the circumstances of the case, but 
 that the drawing of that inference, when the question arises in an 
 action at law, by a party claiming as heir, in hostility to the will, 
 must be drawn by the jury, and not by the court. 
 
 The statute is silent as to the time when the testator must 
 request the witnesses to attest the execution of the will. Whether 
 this request may be before he has himself subscribed the will, or 
 not till he publishes it to be his last will and testament, is not 
 specifically declared in the statute. It was very properly held by 
 Edmonds, justice, in Seguine v. Seguine, already cited for another 
 purpose, that this request may be made by the testator previous 
 to his own subscription, provided it be in the same interview at 
 which the will is signed and published by the testator, and as a 
 part of the res gestce ; one act immediately following the other 
 without any interval, and without any interruption to the continu- 
 ous chain of the transaction. (2 Barb. S. C. R, 386.) 
 
 The request of the testator to the witnesses cannot always be 
 proved by direct evidence. The witnesses may, perhaps, forget 
 the actual terms which were used, and the statute does not insist 
 
108 ATTESTATION CLAUSE. 
 
 on any particular form of making this request. We have seen that 
 it may be inferred by a jury, in a proper case ; and it also, doubt- 
 less, may be inferred by the surrogate, on the application for 
 probate. If the attestation clause is drawn in the usual form, it 
 will state that all the requisite formalities were complied with, 
 mentioning them, and among others, that the witnesses subscribed 
 their names as such at the request of the testator. If, after the 
 execution of the will by the testator, this clause, before it is sub- 
 scribed by the witnesses, be read distinctly aloud in the presence 
 and hearing of the testator and the witnesses, their signature to it 
 affords some evidence that all the requirements of the statute were 
 complied with. In case of their death, the proof of their signatures 
 will be sufficient evidence that the will was executed in due form. 
 The fact that the attestation was so read and understood by the 
 testator at the time, is sufficient presumptive proof not only of pub- 
 lication, but also that the witnesses signed at his request. {See 
 Brinckerhoofv. Remsen, 8 Paige, 489, and the cases before died. 
 iS. C. in error, 26 Wend. 325. Hutchins v. Cochrane, 2 Bradf. 
 iSur. Rep. 295. Doe v. Roe, 2 Barb. iS. C. Rep. 200. Rieben 
 V. Sicks, 3 Bradf. iSur. Rep. 353. Seguine v. iSeguine, 2 Barb. 
 S. a R. 385.) 
 
 Nor will the fact that either or both of the witnesses, in such a 
 case, have forgotten the fact of such request from the testator, be 
 sufficient to invalidate the will. Their failure to recollect the par- 
 ticular occurrences, at the execution of the will, to the existence of 
 which they have certified, is quite a different thing from their 
 remembering that no request or publication was made. The form- 
 alities stated in the attestation clause may be disproved by the 
 witnesses themselves, and this will repel the presumption of a valid 
 execution of the instrument. {Chaffee v. Baptist Miss. Conv. 10 
 Paige, 85.) But if not disproved, even if the subscribing wit- 
 nesses have lost all recollection of the transaction, the court, if 
 satisfied from other evidence that they did in fact witness the will, 
 may admit it to probate. {Peebles v. Case, 2 Bradf. Sur. Rep. 
 226, and preceding cases.) 
 
 An attestation clause, showing upon its face that all the forms 
 required by the statute have been complied with is not absolutely 
 necessary to the validity of a will, under our statute. {Chaffee v. 
 
ATTESTATION CLAUSE. 109 
 
 Baptist Miss. Conv., supra.) And the late Englisli statute ex- 
 pressly provides " that no form of attestation shall be necessary." 
 The subscribing witnesses are permitted to prove that all the forms 
 •were in fact complied ■with, although the attestation clause is silent 
 on the subject. {Id.) 
 
 It is, however, a matter of wise and prudent precaution, that 
 a proper attestation clause, showing all the statute formalities, 
 should be signed by the witnesses. In addition to the presump- 
 tive evidence it affords in case of the death of the witnesses, or 
 their failure of memory, it shows that the person who prepared the 
 will knew what formalities were required for a valid execution of 
 the will, and tends to raise the presumption that he gave to the 
 testator the necessary information in relation thereto. {Id.) The 
 propriety of reading over the whole attestation clause, at the time 
 of the execution of the will, in the hearing of the witnesses and of 
 the testator, will occur to every one, and has already been adverted 
 to. The indispensable necessity of this, as well as reading the 
 whole will, in the case of a blind or illiterate person, has already been 
 stated, and will be referred to again under the head of evidence in 
 testamentary cases. 
 
 The most liberal presumptions in favor of the due execution of 
 wills, are sanctioned by courts of justice, when from lapse of time 
 or otherwise it might be impossible to give any positive evidence 
 on the subject. Accordingly, a will may be sustained, even in op- 
 position to the positive testimony of one or more of the subscribing 
 witnesses, who, either mistakingly or corruptly swear that the 
 formalities required by the statute were not complied with, if from 
 other testimony in the case, the court or jury is satisfied that the 
 contrary was the fact. And when any of the witnesses are dead, 
 or in such a situation that their testimony cannot be obtained, 
 proof of their signatures is received, as secondary evidence of the 
 facts to which they had attested, by subscribing the will as wit- 
 nesses to the execution thereof. {Jauncey v. Thome, 2 Barb. Ch. 
 41. Nelsons. McGiffert,^ id. \5i.) 
 
 It has been decided in the English ecclesiastical courts, that it 
 was not necessary for the validity of a testamentary instrument, 
 that the testatpr should intend to perform, or be aware that he had 
 
110 SUBSCRIBING WITNESS BEING EXEOUTOE, &c. 
 
 performed a testamentary act. It was supposed to be enough that 
 the paper contained a disposition of the property to be made after 
 death, though not intended to be a will, but an instrument of a 
 different shape. {Bartholomew v. Henley, 3 Phill 317.) The 
 provisions of the act we have been considering, are calculated to 
 guard against the establishment of a paper as a will which the 
 testator did not mean should have that character. To make a valid 
 will there must, in all cases, be the animus testandi ; an intention, 
 not only that the instrument should operate, but that it should 
 operate as a will ; and this whether the subject relates to real or 
 personal estate. 
 
 In concluding this branch of the subject, it seems expedient to 
 notice the effect of a subscribing witness being named as executor 
 in the will, or of his being a legatee or creditor of the testator. 
 The New York code of procedure does not extend to surrogates' 
 courts, and therefore leaves all questions of evidence to be decided 
 by the principles of the common law, so far as they are not altered 
 by the revised statutes. Those statutes provide, that if any per- 
 son shall be a subscribing witness to the execution of any will, 
 wherein any beneficial devise, legacy, interest or appointment of 
 any real or personal estate, shall be made to such witness, and such 
 will cannot be proved without the testimony of such witness, the 
 said devise, legacy, interest or appointment shall be void so far 
 only as concerns such witness, or any claiming under him ; and 
 such person shall be a competent witness, and compellable to tes- 
 tify respecting the execution of the said will, in like manner as if 
 no such devise or bequest had been made. (2 R. S. 65, § 50.) The 
 next section saves to the witness so much of the share of the testa- 
 tor's estate as would have descended to him, in case the will was 
 not established, as will not exceed the value of the devise or be- 
 quest made to him in the will, and allows him to recover it of the 
 devisees or legatees named in the will, in proportion to and out of 
 the parts devised to them. 
 
 If by any will, any real estate be charged with any debt, and 
 the creditor whose debt is so charged shall attest the execution 
 thereof, such creditor} notwithstanding such charge, shall be admit- 
 
SUBSCRIBING WITNESS BEING EXECUTOR, &o. HI 
 
 ted as a competent -witness to prove the execution of such will. 
 (2 R. S. 57, § 6.) 
 
 But whether, if a party named as executor, -without any legacy 
 or other trust vested in him, should be a subscribing -witness to the 
 ■will, at the request of the testator, that circumstance -would render 
 him incompetent as a witness, is not provided for in the statute. 
 A mere executorship does not seem to be a beneficial appointment, 
 and therefore his office is not invalidated by his being a subscribing 
 -witness. In Burritt v. Silliman, (16 Barb. 198,) the executor was 
 not a subscribing witness to the will,but was offered as a witness to 
 establish the will after the subscribing witnesses had been exam- 
 ined. The large bulk of the property of the testator was bequeathed 
 to the executors, of whom there were three. The one offered as 
 a witness being objected to, on the ground both of his being execu- 
 tor and a trustee under the will, thereupon he renounced his . ap- 
 pointment as executor, and also as trustee under the will. But 
 the objection being continued, he was rejected by the surrogate as 
 incompetent, on the ground that before letters testamentary were 
 granted, he had a right to recall his renunciation. On appeal to 
 the supreme court in the third district, the decree of the surrogate 
 was affirmed. The learned judge who delivered the opinion of the 
 court held that a persop named as executor in a will is not, at 
 common law, a competent witness to sustain the will when offered 
 for probate, but a renuneiation of the executorship would restore 
 the competency of the executor. But the court thought the renun- 
 ciation as executor did not remove the interest created by the 
 appointment of the executors as trustees, and on that ground sus- 
 tained the decision of the surrogate. The intimation that an exec- 
 utor, at common law, was not a competent witness, was not material 
 to be decided in that case, and was clearly an obiter dictum. The 
 case went to the court of appeals, (3 Kern. 93,) where the judgment 
 of the supreme court and that of the surrogate were reversed. The 
 court of appeals admitted that a person named as an executor in a 
 will was a competent witness to sustain its probate after he had 
 renounced the executorship. Whether he was competent without 
 such renunciation was not a question in the case, nor passed upon 
 by the appellate court. The reversal was upon another ground, not 
 material to the present discussion. This case cannot be considered 
 
112 FORM AND LANGUAGE OF "WILL. 
 
 as an authority to support the dictum of the court below, thst an 
 executor is an incompetent witness at common law, to support the 
 probate. 
 
 The very question we are considering arose at a latelr day, in 
 the supreme court in the second district. In that case, one of 
 the persons named as executor in the will had been admitted as a 
 witness to prove its execution, by the surrogate of Kings county, 
 against the objection of the contesting parties. From the decree 
 of the surrogate admitting the will to probate, an appeal was 
 taken to the supreme court, and the decision of the surrogate was 
 affirmed. This case conclusively settles the question in favor of 
 the competency of the executor to be a subscribing witness, when 
 he takes no other interest under the will.* 
 
 Section II. 
 
 Of the form and language of a will, and the materials of 
 which it is com,posed, and of the person hy whom it m,ay be 
 written. 
 
 There is no particular form of words necessary to make either 
 a will of real or personal estate. With regard to the latter, a 
 great degree of looseness formerly prevailed, but as the revised 
 statutes have placed both upon the same footing, and have now 
 been in force nearly thirty years, it seems inexpedient to notice, 
 more at length, the former practice. 
 
 It is said to be essentially requisite that the instrument should 
 be made to depend upon the event of death as necessary to con- 
 summate it ; for when the paper directs a benefit to be conferred 
 inter vivos, without reference, expressly or impliedly, to the death 
 of the party conferring it, it cannot be established as testamentary. 
 {Glynn v. Oglander, 2 Bagg. 428.) 
 
 In a will of real estate, the word " heirs" was not necessary to 
 pass an estate in fee. {Cruisers Dig. title 38, ch. 11, §§ 3, 4.) 
 The intention of the testator, to be gathered from the whole will, 
 is to govern. (^Jackson v. Babcock, 12 John. 389.) The word 
 " estate" passes a fee. {Jackson v. Merrill, 6 John. 185. Same 
 
 * This question was decided by me in the same way, twenty-flve years ago, 
 while I was surrogate of Washington county. 
 
ON WHAT TO BE WRITTEN. II3 
 
 V. Delaney, 13 id. 537.) It is unnecessary to collect the cases 
 on this point, since the revised statutes have adopted the principles 
 on which they were decided, and declared that any devise of real 
 estate, or any interest therein, shall pass all the estate or interest 
 of the testator, unless the intent to pass a less estate should appear 
 by express terms, or be necessarily implied. (1 R. S. 748, § 1.) 
 And if the will by any terms, denotes the testator's intent to de- 
 vise all his real property, it shall be construed to pass all the 
 real estate which the testator was entitled to devise at the time of 
 his death. (2 R. S. 67, § 5.) Thus, it places a will of real 
 estate, in this respect, on the footing of a will of personal prop- 
 erty, contrary to the former practice, which did not permit a 
 devise to pass any lands but such as the testator possessed at the 
 time the will was made, and of which he continued possessed till 
 the time of his death. 
 
 A will is usually written on paper or parchment, and with pen 
 and ink. In the English ecclesiastical courts, wills of personal 
 property written with a pencil have been admitted to probate. 
 {Rymer v. Clarskson, 1 Phill. 35. Green v. Skipworth, Id. 58. 
 Dickenson'v. Dickenson, 2 id. 173.) It is laid down in Williams' 
 Executors, 91, a work of high authority, that this is still law, but 
 he refers to no case since the statute of 1 Vict. ch. 26. The 
 question does not seem to have been decided, in our courts, since 
 the revised statutes. Wills of real and personal property are 
 both placed on the same footing, and are required to be in writing 
 and to be subscribed by the testator at the end thereof, and to be 
 attested by at least two witnesses who are to sign their names at 
 the end of the will as such witnesses. There is a strong implica- 
 tion, from the language of the statute, that the will should be 
 written with pen and ink. It is certainly the most prudent to do 
 so. The decision of the court of errors, in Davis v. Shields, 
 (26 Wend. 341,) which arose under similar language, in the 
 statute of frauds, to that in the act concerning wills, affords a 
 strong argument in favor of the doctrine, that a testamentary 
 instrument must be written on paper or parchment, with pen 
 and ink. 
 
 It is immaterial in what language the will is written, whether 
 15 
 
114 OF WILLS WRITTEN BY LEGATEE. 
 
 in Latin, French or any other language. {Swinh. ft. 4, ch. 25, 
 pi. 31.) If written in a foreign language, probate is granted of a 
 translation, as will be more fully seen hereafter. 
 
 The question has often arisen in our courts, whether a will writ- 
 ten by a legatee, or by his procurement, was a valid instrument. 
 By the civil law such instrument was void. But this rule has not 
 been adopted to its full extent, in England and this country. The 
 subject was examined much at large by Baron Parke, in the judi- 
 cial committee of the privy council, in 1837, and the result of it 
 was that the onus probandi in every case lies upon the party pro- 
 pounding a will for probate; and second, that when the party who 
 prepares a will, takes a benefit under it, it is a circumstance which 
 excites the suspicion of the court, and unless that suspicion be 
 removed, the court will not pronounce in favor of the instrument. 
 {Barry v. Builin, 1 Curteis, 637.) If the court becomes satisfied, 
 from the evidence and surrounding circumstances, that the paper 
 contains the will of the deceased, it will pronounce for it, though, 
 as in that case, it was prepared by the deceased's solicitor, under 
 which he took a considerable benefit, the only son of the testator 
 being excluded, and- the deceased being of weak, though of testa- 
 ble capacity. {Id.) 
 
 This question has frequently arisen in our courts, and has been 
 decided the same way. In Crispell v. Dubois, (4 Barb. 393,) the 
 subject was carefully examined by Harris, justice. The result 
 was that on a feigned issue to try the validity of a will containing 
 a devise in favor of his medical attendant and confidential adviser, 
 and drawn by the devisee himself, more was required than bare 
 proof that the testator was of sound mind, and of the execution 
 of the will according to the formalities required by law. Some 
 affirmative evidence, it was said, must be given, to show that the 
 testator knew the contents of the will, and that it expressed his 
 real intentions. In this class of cases it would be more satisfac- 
 tory to have direct proof that the testator gave instructions for 
 drawing the will, or that it was read over by or to him ; yet such 
 evidence is not indispensable. Proof that the will was the spon- 
 taneous intention of the testator, may be made out in any legiti- 
 mate mode in which his real intention can be ascertained, (/rf.) 
 
NUNOUPATIVE WILLS. 115 
 
 In Blanchard v. Nestle, the testatrix wrote a part of the will con- 
 taining a legacy in her own favor, but it was shown that she only 
 obeyed, with reluctance, the command, or complied with the urgent 
 request of her father, and the will was upheld. (3 Denio, 43.) 
 The same doctrine has been repeatedly held by the surrogate of 
 New York. {See Leaycraft v. Simmons, 3 Bradf. Sur. 35 ; 
 Wilson V. Moran, id. 72. See remarks of Chancellor Kent, in 
 Prince v. Hazleton, 20 John. 509, 516.) 
 
 Section III. 
 Of nuncupative wills and codicils. 
 
 The subject of nuncupative wills was briefly noticed in chapter 
 first, ante, page 64. A few remarks will be added to what is there 
 said on the subject. 
 
 The former statute of this state enacted that no nuncupative 
 will should be good when the estate thereby bequeathed exceeded 
 seventy-five dollars in value, unless the same be proved by the 
 oaths of three witnesses at the least, who were present at the mak- 
 ing thereof; nor unless it be proved that the testator at the time 
 of pronouncing it, bid the persons preSentj or some of them, bear 
 witness that such was his willj or words to that effect, nor unless 
 such nuncupative will be made in the last sickness of the deceased, 
 and in his dwelling house, or where he had been resident for ten 
 days or more next before the making of such will, except when 
 such person was surprised or taken sick being from home, and 
 died before his return to the same. That after six months from 
 the speaking of the testamentary words, no testimony should be 
 received to prove such will, except the said testimony or the sub- 
 stance thereof should have been committed to writing within six 
 days after the making of the said will. The act also provided that 
 letters testamentary should not be issued till after fourteen days 
 from the death of the testator, nor then without a citation to the 
 widow or next of kin. (1 R. L. of 1813, p. 307, §§ 14, 15.) It 
 was while those statutory provisions were in force, that the case 
 of Prince v. Hazleton, (20 John. 502,) arose. The construction 
 put upon the act in that case, limited the time for making a nuncu- 
 pative will to the period when the testator was in extremis, or 
 
116 NmrCTJPATIVE WILLS. 
 
 overtaken by sudden or violent sickness, and had not time to make 
 a, written -will. By the words " last sickness," in the purview of 
 the statute, the court held were to be understood the last extremity. 
 That will was set aside, and there can be no question that the 
 fraudulent attempt on that occasion, to get the control of the large 
 estate of a sick man, by means of such a will, pretendedly made, 
 led the legislature, at the revision in 1830, to repeal the former 
 law, and to substitute the provisions of the revised statutes that 
 no nuncupative or unwritten will, bequeathing personal estate, 
 should be valid, unless made by a soldier while in actual military 
 service, or by a mariner while at sea. (2 R. iS. 60, § 22.) To 
 that class of persons alone is reserved the right of a testamentary 
 disposition of their personal property under the circumstances 
 mentioned in the act. 
 
 The right of disposing of real property is not affected by the 
 statute. Nothing but personal property can be the subject of a 
 nuncupative will. 
 
 The present English statute is similar to that of this state and 
 limits the right of testamentary disposition by a nuncupative will 
 "to any soldier being in actual military service, or any mari- 
 ner or seaman being at sea." (1 Vict. ch. 26, § 9.) Under this 
 provision the English courts have held that the privilege does not 
 extend to a soldier quartered in barracks, either at home or abroad. 
 {Drummond v. Parish, 3 Curteis, 522, White v. Ripton, 
 3 id. 818.) 
 
 In the recent case of Hubbard v. Hubbard, (12 Barb. 148,) a 
 mariner while actually at sea, and during his last illness, and within 
 an hour of his death, in answer to the inquiry what disposition he 
 wished to make of his property ? replied, " I want my wife to have 
 all my personal property ;" such declaration being made in the 
 presence of four witnesses, and the testator being of sound mind 
 and memory at the time, and under no restraint, it was held by the 
 supreme court in the second district, that this was a good nuncu- 
 pative will, and their judgment, reversing that of the special term, 
 and affirming that of the surrogate, who had admitted the will to 
 probate, was affirmed by the court of appeals. (5 iSeld. 196.) The 
 learned judge of the supreme court, in the course of his opinion, 
 well remarked, that the right of a soldier in actual military service 
 
NUNCUPATIVE WILLS— CODICILS. 117 
 
 or of a mariner at sea, to make an unwritten will, is not an unquali- 
 fied right which may be exercised under all circumstances. As 
 the making of such wills can only be justified upon the plea of ne- 
 cessity, so they will only be tolerated when made in extremis. 
 
 In the foregoing case of Hubbard v. Hubbard, a mariner was 
 said to be at sea, while on board his vessel, temporarily wind bound 
 during his Toyage, in an arm of the sea, where the tide ebbs and 
 flows. 
 
 The revised statutes do not prescribe any formalities, or num- 
 ber of witnesses as essential to the validity of a nuncupative will. 
 The 40th section, already treated of, obviously relates only to writ- 
 ten wills, and cannot be considered as repealing the previous 22d 
 section which allows of nuncupative wills in the specified cases of 
 soldiers in actual service, and mariners while at sea. The two can 
 stand together, which will leave the mode of proof of this kind of 
 wills to be governed by the common law. It is necessary that the 
 testator should be shown to be of sound mind and memory, and that 
 he intended at the time to make a testamentary disposition of his 
 property. No particular number of witnesses is required at com- 
 mon law, nor any other ceremonies as to publication or attestation. 
 (^See opinion of Marvin, J. in Court of Appeals, (5 Seld. 200 to 
 202, where the subject is well considered.) Whether it is required 
 for the validity of such a will that the testator should be in ex- 
 tremis when it was made, was expressly left undecided by the 
 Court of Appeals. The question did not arise in that case. 
 
 It was remarked by Sir John Nicholl, in Lemann v. Bonsall, 
 (1 Add. 389,) that independent of the statute of frauds, the/ao- 
 tum of a nuncupative will required to be proved by evidence more 
 strict and stringent than that of a written one in every single 
 particular, in consequence of the facilities with which frauds in 
 setting up such wills are obviously attended. 
 
 With respect to codicils, it is only necessary to add, that the 
 term " will," as used in the statute, includes codicils as well as 
 wills. (2 R. S. 68, § 71. Howland v. Union Th. Sem. 4 Sanf. 
 S. C. R. 82. Seymmr v. Van Wyck, 2 Seld. 120.) 
 
11^ EEVOOATION OF WILLS. 
 
 CHAPTER IV. 
 
 OP THE REVOCATION OF WILLS. 
 
 It is a general principle of law, that a will does not take effect till 
 the death of the testator. Until the happening of that event, 
 therefore, all its provisions are in the breast of the testator, and 
 he may alter them as he pleases. It is not in the nature of things 
 that a will should be irrevocable. It is not a compact to which 
 other persons are parties, but a voluntary disposition of property 
 which the testator wishes to take place when he is dead. A will 
 is, therefore, correctly said to be ambulatory, till the death of the 
 testator. {Dan \. Brown, 4: Coweh, 4:90.) Voluntas est ambula- 
 toria usque extremum vita, exitum. (4 Co. 61 b.) 
 
 The act of 1853, concerning wills, (1 R. L. 364, § 3,) prescribed 
 the means by which wills should be revoked or altered, which with 
 slight modifications, have been adopted by the revised statutes. 
 The existing statutes contemplate four methods of revoking a will, 
 all of which relate, as well to a will of real as of personal property. 
 1st. By a subsequent will in writing. 2. By some other writing 
 of the testator declaring such revocation, and executed with the 
 same formalities with which the will itself was required to be exe- 
 cuted. 3. By burning, tearing, obliterating, canceling or destroy- 
 ing it with intent to revoke it. 4. By certain changes in the tes- 
 tator's situation in life, as by marriage. To which may be added, 
 6. Partial revocations occasioned by ademption of a legacy. It is 
 proposed to treat of each of them in their order. 
 
 Section I. 
 
 Of revocation by a subsequent will. 
 
 The operation which a subsequent will, containing no express 
 words of revocation, has upon a prior will, is an interesting ques- 
 tion ; and often a difficult one to be determined. Whether the two 
 shall stand together, as constituting one will, or the last be deem- 
 ed a revocation of the first, depends upon a variety of circum- 
 stances, indicating intention, some of which Tfill now be considered. 
 
BY SUBSEQUENT WILL. 119 
 
 It is laid down by Swinburne, {PI. 7, § 14, pi. 11,) and repeated 
 by most of the elementary books on this subject, that a man may 
 make a testament as often as he pleases, until his last breath ; 
 but no man can die with two testaments, and therefore the last 
 and newest is of force ; so that if there were a thousand testa- 
 ments, the last of all is the best. But this must be understood 
 with this qualification, that a subsequent will does not work a 
 total revocation of a prior one, unless the latter expressly revoke 
 the former, or the two be incapable of standing together ; for 
 though no man can " die with two testaments," yet any number of 
 instruments, whatever be their relative dates, if duly executed, 
 may be admitted to probate, as together containing the last will 
 of the deceased. {Masterman v. Waverly, 2 Hagg. 235. Van 
 Wert V. Benedict, 1 Bradf. 114. McLoskey v. Reid, 4 id. 
 334.) And if a subsequent testamentary paper be partially in- 
 consistent with one of an earlier date, then such latter instrument 
 will revoke the former as to the points only where they are incon- 
 sistent. So a codicil, not expressly revoking a former will of real 
 estate, though it professes an intention to make a disposition of 
 the whole estate different from the will, if it do not do so in fact, 
 but only in part, is not a revocation pro tanto. {Brant v. Wilson, 
 8 Cov^en, 56.) And in the latter case, the supreme court recog- 
 nize the rule to be, that the contents of the second will must ap- 
 pear to be inconsistent with the dispositions of the former will to 
 operate as a revocation, and that if part is inconsistent, the first 
 will shall only he revoked to the extent of the discordant disposi- 
 tions. When the subsequent paper is merely codicillary, there is 
 no difficulty ; but when the subsequent will is not in conflict, but 
 makes a full disposition of the estate, whether wholly or partially 
 incompatible with a former will, it is a revocation of such prior 
 will in toto, unless it appears from the instrument itself that it 
 was the intention of the testator that they should stand together. 
 The principle on which two instruments together are admitted to 
 probate, as containing the will of the testator, is the intention of 
 the testator that they should so operate ; and the ecclesiastical 
 courts admitted parol evidence of the animus with which the act 
 was done. {Greenough v. Martin, 2 Add. 289. Mithuen v. 
 Mithuen, 2 Phill. 416. Bartholomew v. Henley, 3 id. 319.) 
 
120 BY SUBSEQUENT ACT. 
 
 But it has been held by the court of appeals of New York, 
 that upon a question of revocation of a will, no declarations of the 
 testator are competent evidence except those which accompany 
 the alleged act of revocation. ( Waterman v. Whitney, 1 Kern. 
 157, per Selden J.) 
 
 The general principle, no doubt is, that bequests are frima facie, 
 to be taken cumulatively, when they are on separate papers unless 
 they are revocatory of each other. {Bartholomew v. Henley, 
 3 Phill. 313.) 
 
 In Langdon v. Astor^s Ex'rs, (2 Smith, 9. 16 N. Y. Reps.) 
 it was held by the New York court of appeals, that a testator in 
 his will, cannot reserve a right to qualify, by an unattested writing, 
 a transaction which at the time of such writing, shall have already 
 passed and taken effect, or which was the act of another person, 
 so as by means thereof to affect legacies or other provisions in his 
 testamentary papers. He cannot alter his will otherwise than by 
 an instrument attested in the same manner as required to give it 
 effect as a will. He may, however, make his testamentary gifts 
 dependent upon the happening of any event in the future, whether 
 in his lifetime or afterwards. He may, therefore, provide, that 
 a legacy shall not be payable, if in his lifetime, he shall give to 
 the legatee an amount equal to the legacy ; and he may add to the 
 condition the further requirement,, that any advancement he may 
 make, shall, in order to be applied on account of the legacies, be 
 charged to the legatee on his books of account. 
 
 It was long a vexed question, whether on the revocation of a 
 later will, a former uncanceled will should revive or not. ( Good- 
 right V. Glazier, 4 Burr. 2512. Harwood v. Goodright, Cow. 
 87, 92. Moore v. Moore, 1 Phill. 406. Onions v. Tyler, 1 P- 
 Wms. 345.) In the common law courts the presumption was said 
 to be in favor of the revival of the former will, but in the ecclesi- 
 astical courts, either an opposite presumption prevailed, or the 
 case was considered open without prejudice to the examination of 
 testimony. In both courts, parol evidence was admissible to ascer- 
 tain the intention of the testator. The New York revisers pro- 
 posed to change this rule by adopting the presumption against a 
 revival, and excluding evidence to contradict it. (3 R. S. 633, 
 
REVOCATION IN EXPEESS TEEMS. 121 
 
 Reviser's' Notes.) This was sought to be done by the 53d sec- 
 tion, (2 R. S. 66,) which enacts, that if, after the making of any 
 will, the testator shall duly make and execute a second will, the 
 destruction, canceling or revocation of such second will, shall not 
 revive the first will, unless it appear by the terms of such revoca- 
 tion, that it was his intention to revive and give effect to his first 
 will ; or, unless after such destruction, canceling or revocation he 
 shall duly republish his first will. Under this statute it has already 
 been shown that no declarations of the testator are competent evi- 
 dence on the question of revocation, except those which accompanied 
 the act, and were a part of the res gestce. ( Waterman v. Whit- 
 ney, supra.) 
 
 The 22d section of the English statute (1 Vict. ch. 26,) contains 
 a similar provision to that of the 53d section of the New York re- 
 vised statutes. Under the English statute it has been held that 
 if a second or third will contain a clause, revoking all former wills, 
 the destruction of the latter will does not revive the former, and 
 that parol evidence is inadmissible to show an intention to revive. 
 {Major v. Williams, 3 Curteis, 432.) It is presumed the same 
 principle is applicable to cases arising under the New York stat- 
 ute, although I am not aware that the question has arisen and 
 been decided. 
 
 / Section II. 
 
 Of revocation by express terms in a subsequent will, or other 
 instrum,ent. 
 
 As to an express revocation contained in a will or codicil, or some 
 other writing of the testator, it is provided by the revised statutes, 
 (2 R. iS. 64, § 42,) that such will, codicil or other writing declar- 
 ing such revocation or alteration must be executed by the testa- 
 tor with the same formalities that are required by law for the exe- 
 cution of a will. This provision was borrowed from the sixth sec- 
 tion' of the English statute of frauds, and departed from it only, in 
 extending to a will of personal property, as well as to one of real prop- 
 erty, to the latter of which the English statute was confined. The 
 20th section of the late English statute of wills, (1 Vict. ch. 26,) 
 contains a similar provision to that of the New York statute. 
 16 
 
122 EEVOOATION IN EXPRESS TEEMS. ' 
 
 The English, statute of frauds (29 Charles 2, ch. 3, § 6,) enacted 
 that no devise in writing of lands <fcc. shall be revocable, otherwise 
 than by some other will or codicil in writing, or other writing de- 
 claring the same, signed by the testator in the presence of three 
 or more witnesses, declaring the same. The law of this state con- 
 cerning wills, passed in 1813, § 3, (1 R. L. 365,) forbid a will to 
 be revoked or altered otherwise than by some other will or codicil 
 in writing, or other writing of the party to such last will and tes- 
 tament, declaring the same, and signed, attested and subscribed in 
 manner aforesaid, that is as wills are required to be signed and 
 attested. The 20th section of the statute of Victoria, ch. 26, re- 
 quires that the other writing declaring the intention to revoke 
 the will, shall be executed in the same manner as wills were therein 
 required to be executed. 
 
 The meaning seems to be that a testator may revoke his will by 
 a subsequent will, in which he makes a different disposition of his 
 property and expressly declares such revocation. Or, if he prefers 
 to die intestate, and to place the matter beyond all doubt, chooses 
 to revoke all former wills or codicils by him made, he may do so 
 by executing an instrument in writing, declaring such revocation 
 or intention, and executing it with the same formalities that are re- 
 quired by law for the execution of a will. (2 R. S. 64, § 42.) 
 There is no absurdity in requiring such instrument to be executed 
 as a will, for it is a testamentary writing, or in calling that a will 
 which declares an intention to die intestate. The implication from 
 the 42d section is that a subsequent will is no revocation of a former 
 one, unless it contains matter therein which indicates such inten- 
 tion. If the contents of the last will cannot be ascertained, it is 
 no revocation of the former will. {Nelson v. McGHfert, 3 Barb. 
 Ch. R. 158.) 
 
 As the republication of a will is equivalent to the making of a 
 new will, such republication will revoke any will intermediate to 
 the original date of the prior will and of its republication. {Rogers 
 V. Pittis, 1 Add. 30.) This subject will be noticed more at large 
 in a subsequent section. {See post.) 
 
CANCELLATION— OBLITERATION. 123 
 
 Section III. 
 
 Of revocation by cancellation, burning, tearing, obliterating 
 or destroying it. 
 
 It was remarked by Sir John Nicholl, in Smith v. Cunning- 
 ham, (1 Add. 455,) that all questions of revocation, are questions 
 of intention to a certain degree ; for every fact of revocation is 
 in some respects equivocal. Canceling and obliterating are justly 
 considered peculiarly as equivocal acts, which in order to operate 
 as a revocation, must be done with an intention to revoke. 
 
 In Jackson v. Halloway, (7 John. 394,) the testator had made 
 alterations in his will, not with intent to destroy the devise already 
 made, but to enlarge it by extending it to lands subsequently ac- 
 quired. The alterations and amendments were not attested accord- 
 ing to law, and therefore failed to operate. But it was held that they 
 did not destroy the previous devise, for that was not the testator's 
 intention. The mere act, say the court, of canceling, is nothing, 
 unless it be done animo revocandi. {See also Jackson v. Potter, 
 9 John. 312.) 
 
 Unless the testator possesses a testamentary capacity, he can no 
 more revoke a will by tearing or cancellation, than he could revoke 
 it by a new will, or other instrument of revocation. There must 
 be the animus revocandi in both cases, and this involves the idea 
 of a sound disposing mind and memory. A madman cannot have 
 this intent. {Smith v. Wait, 4 Barb. 28. Nelson v. McGiffert, 
 3 Barb. Ch. 168.) So a will partially defaced by a testator, whilst 
 of unsound mind, was pronounced for,, as it existed in its integral 
 state, that being ascertainable. {Scruby v. Fordham, 1 Add. 74.) 
 
 The presumption of law, -prima facie is, that obliterations &c. 
 made after the execution of the will, are done, atiimo revocandi. 
 ( Thyne v. Stanhope, 1 Add. 52. Rickards v. Mumford, 2 Phill. 
 23, 28.) But this presumption may be repelled by evidence show- 
 ing that the animus did not exist — as if a man was to throw ink 
 on his will instead of sand, though it might be a complete defac- 
 ing of the instrument, it would be no revocation ; or suppose a 
 man having two wills of different dates by him, should direct the 
 
124 CANCELLATION BY MISTAKE. 
 
 former to be canceled, and through mistake, the person directed 
 should cancel the latter, such an act would be no revocation of the 
 latter will. A cancellation therefore, through accident or mistake, 
 will be inefifectual to revoke a will. (Thyne v. Stanhope, supra. 
 Onions v. Tt/rer, 1 P- Wms. 344. 2 Vernon, 743. Perrott v. 
 Perrott> 14 East, 423, 439.) 
 
 Nor does it make any difference whether the mistake be in a 
 matter of fact or of law. Lord Ellenborough thought, in Perrott 
 v. Perrott, supra, that a mistake in point of law, clearly evidenced 
 by what occurred at the time of canceling, would have the same 
 operation as a mistake in matters of fact. 
 
 The revised statutes of New York, (2 R. iS. 64, § 42,) must be 
 construed with reference to the decisions of the courts. To ren- 
 der a burning, tearing, canceling, obliterating or destroying of a 
 will, a revocation, it is necessary that the act should have been 
 done with the intent and for the purpose of revoking the same, 
 by the testator himself, ox by another person in his presence by 
 his direction and consent ; and when so done by another person, the 
 direction and consent of the testator, and the fact of such injury or 
 destruction, are required to be proved by at least two witnesses. 
 
 In a case in the prerogative court, (/« the goods of Appleby, 
 1 Hagg. 66,) an executor having in pencil altered a will by 
 the direction of the testator, who approved it when so altered, 
 and then canceled it, only in order that another might be drawn 
 up, the preparation of which was prevented by the death of the 
 testator. Sir John Nicholl held that such cancellation, being pre- 
 paratory to the making of a new will by the deceased, and con- 
 ditional only) was not a revocation, and he granted probate of the 
 canceled will in its original state. 
 
 If a testator tear off his seal and signature at the end of the will, 
 the court will infer an intention to revoke the whole will, this being 
 the ordinary mode of performing that operation. {Per iSir John 
 Nicholl in Scruhy v. Fordham, 1 Add. 78.) If, on the other 
 hand, he obliterates only a particular clause, on the same principle 
 it operates as a revocation only pro tanto. {Id.) 
 
 If the intention to revoke the will is apparent, the act of cancel- 
 lation or obliteration shall carry such intention into effect, although 
 not literally an effectual destruction or obliteration of the will, pro- 
 
LOST OR DESTEOYED WILL. 125 
 
 vided the testator completed all he intended to do. But if the 
 act of destruction or cancellation be inchoate and incomplete, it will 
 not amount to either a partial or total revocation. Thus, if the 
 testator in a fit of rage conceive the intention of destroying his will 
 and commence to do so by tearing it, and afterwards desists and 
 puts the pieces together, his anger being appeased, it becomes a 
 question for the jury on the evidence, whether the testator did all 
 he intended, or whether he was prevented from completing the act 
 of destruction he intended. And if they find he was so prevented, 
 the act of destruction being incomplete, would not operate as a 
 revocation of the will. [Doe v. Perkes, 5 B. (^ A. 489.) 
 
 A lost or destroyed will cannot be proved in the surrogate's 
 court. Jurisdiction in such a case formerly belonged to the court 
 of chancery, and since the abolition of that court, to the supreme 
 court. {Bulkley v. Redmond, 2 Bradf. S. R. 281.) Provision 
 for this purpose is made by the revised statutes. (2 R. S. 67, as 
 altered i^i 1830. 3 R. iS. 153, 5th ed.) The statute applies to 
 wills of real or personal estate, and to wills lost or destroyed, 
 either by accident or design. By the 67th section it is enacted 
 that no will of any testator who shall die after the 1st January, 
 1830, shall be allowed to be proved as a lost or destroyed will, un- 
 less the same shall be proved to have been in existence at the time 
 of the death of the testator ; or be shown to have been fraudulently 
 destroyed in the lifetime of the testator ; nor unless its provisions 
 shall be clearly and distinctly proved by at least two credible wit- 
 nesses, a correct copy or draft being deemed equivalent to one 
 witness. 
 
 A similar jurisdiction, in regard to wills of personalty, lost or 
 fraudulently destroyed, was exercised in England by the ecclesias- 
 tical courts, whose practice in this respect is substantially copied 
 by the N. Y. statute above cited, and made applicable to both wills 
 of real and personal property. ( Trevelyan v. Trevelyan, 1 Phill. 
 149. Scruhy v. Fordham, 1 Add. 78. Foster v. Foster, Id. 
 462.) On the establishment of such will by the supreme court, it 
 is to be recorded by the proper surrogate, and letters testamentary 
 or of administration, with the will annexed, are to be issued by him 
 in the same manner as on wills duly proved before him. (3 R. S, 
 
126 CANCELLATION WHEN PRESUMED. 
 
 153, oth ed. supra.) It is presumed that before the revised stat- 
 utes, the establishment of a lost will of personal estate belonged 
 to the surrogate's court, or the court of probate, as the case might 
 be, as possessing the jurisdiction in this state ■which the ecclesi- 
 astical courts exercised in England. 
 
 If a testator is shown once to have executed his will, with the 
 ceremonies required by the statute, and on his death the instru- 
 ment is not found amongst his papers, it has been a controverted 
 question, whether its destruction by the testator or its continued 
 existence is to be presumed. In Jackson v. Betts, (9 Cowen, 208,) 
 the supreme court held that in such a case its continued existence, 
 till the death of the testator, would be presumed, unless there be 
 evidence of its having even been canceled, or otherwise re- 
 voked by the testator. But this case was subsequently unani- 
 mously reversed by the court of errors, after an elaborate review 
 of the English cases, and the doctrine was established that in such 
 a case the legal presumption is that the testator had destroyed it 
 animo revecandi. {Betts v. Jackson, 6 Wend. 173.) Jhis last 
 decision is undoubtedly the law at this time, both here and in Eng- 
 land. {Bulkley v. Redmond, 2 Bradf. S. R. 281. Rickards 
 v. Mumford, 2 Phill. 23, per Sir John Nicholl. Jam,es v. Cohen, 
 3 Cutties, 770.) 
 
 The same doctrine applies to the case of a mutilation or defacing 
 a will, which upon the death of the testator is found amongst his 
 repositories. Such acts are presumed to have been done by the 
 testator himself, and to have been done animo revocandi, especially 
 if the mutilation be such as is usually resorted to for that purpose. 
 {Lambell v. Lamhell, 3 Hagg. 568.) 
 
 But this presumption is one of fact and maybe repelled by other 
 circumstances, as by showing that the testator had no opportunity 
 of doing the act, or that it was done by another. {Minkler v. 
 Minkler, 14 Vt. R. 125. Lillie v. Lillie, 3 Hagg. 184, per Sir 
 John Nicholl.) 
 
IMPLIED EEVOOATIONS. 127 
 
 Section IV. 
 
 Of revocations effected hy a change in the testator's condition, 
 such as marriage and the like, and of implied and partial 
 revocations. 
 
 It is well remarked by Chancellor Kent, (4 Com. 521, Lecture 
 68,) that there is not perhaps any code of civilized jurisprudence 
 in which the doctrine of implied revocations does not exist and 
 apply, when the occurrence of new social relations and moral 
 duties raises a necessary presumption of a change of intention in 
 the testator. The rule was borrowed from the civil law, in which 
 it was carried farther than it ever has been in modern times. The 
 presumption that a man has changed his testamentary disposition 
 of his property, does not arise by lapse of time, nor by the accu- 
 mulation of wealth, nor by the prejudice it may occasion to parties 
 to whom it would go in the case of an intestacy. {JSwinb. pt. 7, 
 § 15, pi. 2.) The late English statute, (1 Vict. ch. 26, § 10,) has 
 enacted that "no will shall be revoked by any presumption of an 
 intention on the ground of an alteration of circumstances." This 
 was perhaps no more than a declaration of the existing law. 
 
 It is proposed to notice a few instances of implied revocations, 
 and to bring to the notice of the reader the statutory provisions 
 on the subject. ' 
 
 The marriage of the testator and birth of a child, when both 
 events occur subsequent to the making of his will, have been held 
 both in England and this country, to amount to a revocation of a 
 will, whether of real or personal estate. {Brush v. Wilkin, 
 4 John. Ch. 506. Havens v. Van Denburgh, 1 Denio, 27.) Both 
 these circumstances must concur to produce this result. Neither 
 marriage alone of a man, or the birth of a child, alone, has such 
 effect. But the marriage of a single woman operated as a revo- 
 cation of her will. This depended on a different principle, the 
 effect of the matrimonial relation being to take it out of her power 
 to make a will, and thus the nature of the instrument would be 
 destroyed by its ceasing to be ambulatory. Be this as it may, the 
 New York revised statutes have expressly enacted that a will ex- 
 
128 IMPLIED EEVOOATIONS. 
 
 ecuted by an unmarried woman shall be deemed to be revoked by 
 her subsequent marriage. (2 R. S. 64, § 44.) 
 
 The reason why the marriage and birth of a child shall operate 
 to revoke the will of an unmarried man, was sometimes put upon the 
 supposed change of intention. {Gibbens v. Cross, 2 Add. 455.) 
 When it rested upon this foundation, the presumed intention might 
 be repelled by evidence showing unequivocally that the testament 
 is to operate, notwithstanding such marriage and issue. {Id.) 
 
 At other times the revocation was put upon the tacit condition 
 annexed to the instrument by the testator, at the time it was 
 executed, that it should become void on such a total change of his cir- 
 cumstances as would be occasioned by marriage and issue. {Mars- 
 ton V. Roe, 8 Ad. dj- Ellis, 14.) Under that view of the case, the 
 revocation would not be prevented by any thing short of a provis- 
 ion in the will for both the wife and the issue. A provision for 
 either one alone, would not be enough for that purpose. {Id.) 
 
 The revised statutes have provided for most of the cases which 
 can arise under this head. Thus, it is enacted that if after the 
 making of any will, disposing of the whole estate of the testator, 
 such testator shall marry and have issue of such marriage, born 
 either in his lifetime or after his death, and the wife ptl the issue 
 of such marriage shall be living at the, death of the testator, such 
 will shall be deemed, revoked, unless provision shall have been 
 made for such issue by some settlement, or unless such issue shall 
 be provided for in the will, or in such way mentioned therein as 
 to show an intention not to make such provision ; and no other 
 evidence to rebut the presumption of such revocation shall be 
 received. By prescribing the evidence which shall alone be suffi- 
 cient to rebut the presumption of a revocation and excluding all 
 other evidence on that point, the statute has relieved the courts 
 from the effects of numerous conflicting decisions, and given 
 certainty to the law. 
 
 A will made by a sane person does not become void by his sub- 
 sequent derangement. This springs from the distinction taken by 
 Lord Coke, {in Andrew OgneVs case, 4 Co. 50 b,) between a dis- 
 ability created by the act of God, and by the act of the party. If 
 the subsequent disability arises from the act of Grod, as by insanr 
 
IMPLIED AND PARTIAL REVOCATIONS. 129 
 
 ity, it does not invalidate tLe will. But if it flows from the act 
 of the party, as by marriage dec, it works a revocation. 
 
 But though the birth of a child alone will not revoke a will, yet 
 there is a strong equity in favor of after-born children, for whom 
 no provision is made in the will of the testator, or by any mar- 
 ria,ge settlement. The revised statutes (2 R. S. 65, § 49) have thus 
 provided for that case. If such •child so after-born, be unprovided 
 for by any settlement, and neither provided for nor in any way 
 mentioned in his will, every such child shall succeed to the same 
 portion of the father's real and personal estate, as would have de- 
 scended or been distributed to such child if the father had died 
 intestate, and shall be entitled to recover the same portion from 
 the devisees and legatees, in' proportion to and out of the parts 
 devised and bequeathed to them by such will. The effect of this 
 provision upon the rights of the post testamentary child is the 
 same, in effect, as if the testator had died intestate. But the 
 disposition of the matter by the legislature, was intended not to 
 disturb the arrangements which the testator had made of his 
 estate, among the. several objects of his bounty, and hence each 
 must contribute ratably out of that which he would be entitled to 
 according to the will, for the purpose of making up the distribu- 
 tive share of the post testamentary child. (Mitchell v. Blain, 
 5 Paige, 588.) 
 
 It remains to consider, under this subdivision of our subject, 
 some partial revocations, which have not hitherto been discussed. 
 It will be more convenient to treat of the nature of ademptions 
 when we come hereafter to consider the doctrine with respect to 
 legacies. {Post, Part 3, ch. 3, § 1.) 
 
 It is proper to remember that a will both of real and personal 
 property, speaks of the testator's affairs as they exist at the time 
 of his death, if there be nothing in the will to give it a different 
 effect. Hence the will cannot operate upon any property of which 
 the testator has no interest when the will takes effect. This prin- 
 ciple applies both to personal legacies and to devises. Thus, when 
 the owner of a slave, by his will, declared that she should be man- 
 umitted and have her freedom immediately after his decease ; and 
 afterwards sold her as a slave, and died ; it was held that the sale 
 17 
 
130 IMPLIED AHD PARTIAL REVOCATIONS. 
 
 of the slave by the testator was pro tanto a revocation of the -will 
 so that she was not entitled to her freedom after his decease. [In, 
 the matter of Nan Mickel, a negro girl. 14 John. 324.) This 
 was upon the ground that such would be the operation of the act 
 of disposing of any other property owned by him. A will being 
 ambulatory till the death of the testator, and inoperative till his 
 death, does not prevent the testator, in his lifetime, from disposing 
 of his property as he pleases. 
 
 Previous to the revised statutes a devise of real estate, whether 
 general or specific, was in the nature of an appointment of the spe- 
 cific estate which the testator had at the time of making his will ; 
 but to take effect only on his death, leaving him in the mean time 
 the absolute owner of the same. The devisor must not only, be 
 the owner of the estate at the date of his will, but continue such 
 owner till his death. {Cruise's Dig. tit. Devise, ch. 1, § 10. 
 Adams v. Wirme, 7 Paige, 101.) The devise of land was gov- 
 erned by the analogy of a specific legacy of personal estate. In 
 both cases, the alienation of the property by the testator in his life- 
 time, operated as a revocation pro tanto of his will. To this ex- 
 tent the rule is the same, at the present time, and is not changed 
 by the revised statutes. 
 
 But a doctrine had grown up which carried out the princi- 
 ple of implied revocation much further. Thus, a valid agree- 
 ment or covenant to convey lands, which equity would enforce 
 specifically, upon the principle that what was agreed to be done 
 should be considered as done, operated in equity as a revocation 
 of the previous devise of the same land. ( Walton v. Walton, 7 
 Johii. Ch. 258.) So also any alteration of the estate or interest 
 of the testator in the lands devised, by the act of the testator, was 
 held to be an implied revocation of the will, on the ground princi- 
 pally, of its being evidence of an alteration of the testator's mind. 
 {Cotter V. Layer, 2 P Wms. 624.) The law required that the 
 same intereat that the testator had when he made the will should 
 continue to be the same interest, and remain unaltered till his death. 
 (4 Kenfs Com. 529.) The least alteration was a revocation. The 
 sale of the real estate, and taking back a bond and mortgage on 
 the same land, was also a revocation. {Adams v. Winne, supra. 
 Barstow y. Goodwin, 2 Brad. Sur. Rep. 413.) But a mortgage 
 
IMPLIED AND PARTIAL EEYOOATIOKS. 131 
 
 or charge upon the estate was made an exception to the general rule, 
 and was only a revocation, in equity, pro tanto, or quoad the special 
 purpose. {Sparrow v. Hardcastle, 3 Atkins, 799 ; S.C.I T. R. 
 416, note.) 
 
 The revised statutes have changed the rule with respect to the 
 above cases in part, by enacting that the testator's agreement to 
 convey any property devised or bequeathed in his will, should not 
 be deemed a revocation, either at law or in equity, but the prop- 
 erty should pass by the devise or bequest subject to the same reme- 
 dies on the bond, agreement or covenant, for a specific performance 
 or otherwise, against the devisees or legatees, as might be had 
 against the heirs of the testator or his next of kin, if the same had 
 descended to them. (2 R. S. 64, § 45.) 
 
 They also provide that a charge or incumbrance upon any real 
 or personal estate, for the purpose of securing the payment of 
 money or the performance of any covenant, shall not be deemed a 
 revocation of any will relating to the same estate previously exe- ■ 
 cuted, but the devises and legacies shall take effect subject to the 
 incumbrances. {Id. § 46. Langdon v. Astor's Ex'rs, 2 Smith, 9.) 
 
 The foregoing provisions do not afiect cases where the estate or 
 interest of the testator in property previously devised or bequeathed 
 by him are altered, but not wholly divested by a conveyance, set- 
 tlement, deed or other act of the testator. This before the revised 
 statutes, we have seen worked a revocation of the whole will. But 
 now by the revised statutes, such alteration is declared not to be 
 a revocation of the devise or bequest of such property ; but such 
 devise or bequest passes to the devisee or legatee the actual estate 
 or interest of the testator, which would otherwise descend to his 
 heirs, or pass to his next of kin ; unless in the instrument by which 
 such alteration is made, the intention is declared, that it shall 
 operate as a revocation of such previous devise or bequest. {Id. 
 § 47.) But if the provisions of the instrument by which such altera- 
 tion is made, are wholly inconsistent with the terms and nature of 
 such previous devise or bequest, such instrument shall operate as 
 a revocation thereof, unless such provisions depend on a condition 
 or contingency, and such condition be not performed, or such con- 
 tingency do not happen. {Id^ § 48.) 
 
 Bnt the statute does not change the law with respect to a case 
 
132 REPUBLICATION OF WILLS. 
 
 where the testator has sold and conveyed the real estate devised, 
 and taken back a bond and mortgage for the whole, or a part of 
 the consideration money. The eiFect of such sale is still to revoke 
 the will as to the real estate so sold and conveyed. {Adams v. 
 
 Winne, supra. Barstow v. Goodwin, supra. Brown v. Brown, 
 16 Barb. 569. Beck v. McGillis, 9 id. 35.) 
 
 It would seem, however, that if after such sale, the testator, in 
 his lifetime, takes back the property by a reconveyance, and is 
 seised of it at his death, that the devise will be effectual. {Brown 
 V. Brown, supra. See also, Rose v. Rose, 7 Barb. 174 ; Arthur 
 V. Arthur, 10 id. 9 ; Havens v. Havens, 1 Sand. Ch. 326 ; 
 
 Walton V. Walton, 7 John. Ch. 258, contra.) But this latter case 
 arose before the revised statutes enabled a will to pass after-ac- 
 quired land. 
 
 Section V. 
 Of the republication of wills, and the effect thereof. 
 
 Having treated briefly of the various modes by which a will may 
 be wholly or partially revoked, it will be convenient now to consider 
 the way in which a will may be republished, and of the effect of 
 such republication. 
 
 Republication is of two kinds, express and constructive. Express 
 republication occurs where a testator repeats those ceremonies 
 which are essential to constitute a valid execution, with the avowed 
 design of republishing the will. (1 Jarman on Wills, 202, Per- 
 kins' ed.) Constructive republication takes place when a testa- 
 tor, for some other purpose, makes a codicil to his will ; in which 
 case the effect of the codicil, if not neutralized by internal evidence 
 of a contrary intention, is to republish the will. {Id. Van Cort- 
 land V. Kip, 1 Hill, 590.) The revised statutes (2 R. S. 66, § 53,) 
 have reference to the republication of a will which has once been 
 revoked by a subsequent will, and the object of the section was to 
 prevent the destruction, canceling or revocation of such second 
 will from having the effect, per se, of reviving the first will, 
 unless it should appear by the instrument by which the revocation 
 was effected, that it was the intention to revive and give effect to 
 
KEPTJBLIOATION. 133 
 
 the first ■will ; or unless after such destruction, canceling or revo- 
 cation of the second -will, the testator should republish his first will. 
 
 But there are cases, where the first will has never been revoked 
 by any subsequent will or otherwise, in which it may be desired 
 by the testator to republish his will, so that it may speak from the 
 time of such republication. It is not believed that the statute 
 prevents such republication ; on the contrary, it is supposed that 
 it may be done, either by express republication, in which the cer- 
 emonies prescribed for the first execution must be complied with, 
 or by a codicil, executed and attested in the manner required for 
 the execution and attestation of a will. 
 
 It is scarcely necessary to add that a will once revoked, cannot 
 be repubhshed by parol. ( Witter v. Mott, 2 Conn. 67.) Nor can 
 a will once executed according to law, but not revoked, be repub- 
 lished by parol, in any other way than by repeating the ceremo- 
 nies by which it was first made. 
 
 But a codicil duly executed amounts to a republication of the 
 will to which it refers, whether it be annexed to the will or not, or 
 be or be not expressly confirmatory of it, for every codicil is, in 
 construction of law, part of a man's will, whether it be so described 
 in such codicil or not; and as such, furnishes conclusive evidence 
 of the testator's considering his will as then existing. (1 Wms. 
 Ex. 175. Mooers v. White, 6 John. Ch. 375. Van Cortland 
 V. Kip, 1 Hill, 590.) 
 
 A will executed by a party under undue influence, may be repub- 
 lished and confirmed by a codicil executed afterwards, and when 
 the testator is free from such influence. {O'Neal v. Farr, 1 Sice's 
 iS. C. Rep. 80.) So a will containing a devise of real estate but 
 not duly witnessed, is good if confirmed by a subsequent codicil 
 having the proper attestation, though the latter document be in no 
 way annexed to the will or prior codicil, and though the attesting 
 witnesses to the latter codicil did not see the former one or the 
 will. ( Utterton v. Robins, 1 Adol. Sp Ellis, 423. Havens v. 
 Foster, 14 Pick. 543. Miles v. Boyden, 8 id. 216. Barnes v. 
 Crowe, 1 Ves.jun. 486, 498.) 
 
 But although the general rule be as above stated, yet if it ap- 
 pears on the face of the codicil that it was not the intention of the 
 testator to republish, the ordinary presumption derived from the 
 
134 WHO MAT BE AN EXECUTOR. 
 
 existence of the codicil will be counteracted. {Langdon v. Asior's 
 Executors, 2 Smith, 9. Stratkmore v. Bowes, 1 D. <^ E. 483.) 
 
 CHAPTER V. 
 
 OP THE APPOINTMENT OF EXECUTORS ; THEIR ACCEPTANCE, 
 REFUSAL, AND RENUNCIATION OP THE OFFICE. 
 
 Section I. 
 Who are eligible, a?id who not. 
 
 An executor is defined, by the elementary writers, to be the 
 person to whom the execution of a last will and testament of per- 
 sonal estate is confided by the testator's appointment. ( Toller's 
 Law of Ex'rs, SO. 2 Bl. Com. 503. 1 Wms. Executors, 185. 
 Wentworth's Ex'rs, 3.) It is not essential to the validity of a 
 nomination of an executor, that the will should contain a testa- 
 mentary disposition of property. It is a good will, and entitled 
 to be proved as such, which merely contains the appointment of 
 an executor. It was formerly supposed that if there was no will, 
 there was no executor ; and if there was no executor, there was no 
 will. ( Wentw. Ex'rs, 4.) The former proposition is still true, 
 but the latter is not. There may be a valid will, as will be shown 
 hereafter, which contains no nomination of an executor. [Hubbard 
 V. Hubbard, 4 Selden, 202.) 
 
 With respect to the persons who may be appointed executor, it 
 may, perhaps, be said that all persons are competent to serve, who 
 do not fall within one or the other of the exceptions in the revised 
 statutes, (2 R. S. 69, as amended in 1830, vol. 3, p. 154, bth ed.) 
 These statutes enact that no person shall be deemed competent for 
 this purpose, who, at the time the will is proved, is 1. Incapable in 
 law, of making a contract, (except married women;) 2. Under the 
 age of twenty-one years ; (3.) An alien not being an inhabitant of 
 this state ; (4.) Who shall have been convicted of an infamous 
 crime ; (5.) Who upon proof shall be judged incompetent by the 
 surrogate to execute the duties of such trust by reason of drunk- 
 enness, improvidence, of want of Understanding. A married woman 
 
WHO MAT BE AN EXEOUTOE. 135 
 
 may be appointed executor, with the consent, in writing, of her 
 husband, which consent must be filed in the surrogate's office, and 
 the husband thereby becomes liable for her acts. If a feme sole 
 takes out letters testamentary as an executrix, and afterwards 
 marries, it is not necessary for the husband to file a written con- 
 sent with the surrogate, to render him liable for her acts as such 
 executrix. In such a case the husband is liable jointly with her 
 for her acts, done in a representative capacity, after as well as 
 before the marriage. This case is not within the statute, but de- 
 pends on the principles of the common law. [Bunce v. Vander 
 Grift, 8 Paige, 37.) The statute is probably broad enough in its 
 terms of exclusion to embrace all whom it would be desirable to 
 debar of the office ; and if so, all other persons are of course 
 eligible. 
 
 Some of these disabilities are permanent, and others of a tem- 
 porary nature or subject only to some qualification. Thus, a 
 person who is a non-resident of the state, though in other re- 
 spects competent, is not entitled to letters testamentary until he 
 shall have given the bond required of administrators in cases 
 of intestacy. {Id. § 7.) So also, in case of the personal disa- 
 bility arising from infancy, alienage and coverture, if such disa- 
 bility be removed before the execution of the will is completed, 
 such person shall be entitled, on application, to supplementary 
 letters testamentary, to be issued in the same manner as the 
 original letters, and shall thereupon be authorized to join in the 
 execution of such will, with the persons previously appointed. 
 {Id. § 5.) 
 
 Previous to the revised statutes, the surrogate was obliged to 
 grant letters testamentary to the executor named by the testator, 
 although he was known to be insolvent. ( The King v. Sir Rich- 
 ard Raines, Carthew, 457.) But when the executor became in- 
 solvent after the making of the will, although the creditors and 
 legatees of the testator could obtain no relief in the ecclesiastical 
 court, the court of chancery sometimes interposed to protect the 
 estate from waste or loss by such insolvency. ( Utter son v. Mairs, 
 4 Bro. C. C. 270. 2 Yes. jun. S. C. 95.) But poverty alone, if 
 known to the testator, was not of itself sufficient to authorize 
 the court of chancery to take the administration out of the hands 
 
136 WHO MAT BE AN EZEOUTOE. 
 
 of the executor selected by him, {Howard v. Papera, 1 Madd. 
 R. 86. Wood V. Wood, 4 Paige, 302, 303, per Walworth, Ch.) 
 
 The revised statutes, as was well remarked by the chancellor in 
 Wood V. Wood, supra, have introduced a new principle into our 
 testamentary .law. A person interested in the estate of the 
 testator, eidier ias creditor, legatee or relative or otherwise, may 
 now object against the granting letters testamentary, to one or 
 more, of the persons named in the will as executors, on the ground 
 that his circumstances are such, as not to afford adequate security 
 to the creditors, legatees and relatives of the deceased for the due 
 administration of the estate. And if the surrogate is satisfied of 
 the validity of the objections he may require security as in cases 
 of intestacy. (2 R. S. 70, § 6.) 
 
 The foregoing relates to the action of the court before the 
 granting of letters testamentary. But it is obvious, that cases 
 may happen, in which, after letters testamentary are granted, the 
 person appointed executor may beciome incompetent to serve, or 
 his circumstances may be so precarious as not to afford adequate 
 security for his due administration of the estate, or that he has 
 removed or is about to remove from the state. In such a case the 
 surrogate, on the application of an interested party, can require 
 security from the executor like that required of administrators, 
 and in default thereof, he can supersede the letters testamentary. 
 (2 R. iS. 72, §§ 18, 19, 20, 21. Cotterell v. Brock, 1 Bradf. 148. 
 Mandeville v. Mandeville, 8 Paige, 475. Shook v. Shook, 19 
 Barb. 653. Henry v. Bowers, Id. 658. Holmes v. Cook, 
 2 Barb. Ch. R. 426.) 
 
 It has been held by the court of appeals, under the foregoing 
 provisions, that the surrogate cannot supersede the letters testar 
 mentary on the ground that the executor is legally incompetent 
 " by reason of improvidence," on proof merely that he is illiterate, 
 and a person of small pecuniary means, ancf that he. has been 
 guilty of misconduct or mismanagement in administering the 
 trust estate. [Emerson v. Bowers, 4: Kernan, 449, Coopey. 
 Lowerre, 1 Barb. Ch. R. 45.) 
 
 In McMahon v. Harrison, (2 Seld. 443,) the court of appeals 
 held that the fact that a man is a professional gambler, is presump- 
 tive evidence of such improvidence as to render him incompetent 
 
EXECUTOR— "WHO INCOMPETENT TO BE. 137 
 
 to discharge the duties of executor or administrator. They' thus 
 affirmed the decision of the supreme court, reversing that of the 
 surrogate. {S. C. 10 Barb. 659, reversing same case, 1 Bradf. 
 283.) 
 
 It is settled, however, under these legislative provisions, that 
 when th6re is no ground for supposing that the trust funds in 
 the hands of the executor are in danger from his improvidence, 
 or his want of pecuniary responsibility, he cannot be required to 
 give security. {Mandeville v. Mandeville, supra. 1 Bradf. 283.) 
 
 Under the corresponding provisions of the revised statutes, in 
 relation to the granting of letters of administration, (2 R. S. 75, 
 § 32,) it has been held that the improvidence contemplated by the 
 statute, as a ground of exclusion, is that want of care or foresight 
 in the management of property, which would be likely to render 
 the estate and effects of the deceased unsafe and liable to be lost 
 or diminished in value, by improvidence, in case administration 
 should be granted to the improvident person. {Coope v. Lowerre, 
 1 Barb. Ch. 45.) 
 
 By the English law, few or none are disabled on account of their 
 crimes, from being executors. But by the civil and canon law, not 
 only traitors and felons, but heretics, apostates, usurers, famous 
 libelers, incestuous, bastards, persons excommunicated, (fcc, are 
 incapable of being executors. {Bacon's Abr. tit. Ex'rs and 
 Adm'rs, A 3.) The revised statutes have adopted a judicious rule 
 by excluding from this office all persons convicted of an infamous 
 crime, that is, an offense the conviction for which subjects the 
 accused to punishment in the state prison. The conviction here 
 alluded to, means a conviction upon an indictment or other crim- 
 inal proceeding. {Coope v. Lowerre, supra.) No degree of legal 
 or moral guilt or delinquency is sufficient for this purpose, unless 
 such person has been actually convicted of an infamous crime, in 
 the ordinary mode of judicial procedure. {Id.) 
 
 It would seem, from what was said in Emerson v. Bowers, 
 (4 Kern. 449,) that the fact that the party named as executor in. a 
 will was illiterate, if in other respects competent, affords no ground 
 for the surrogate to withhold the granting of letters testamentary 
 to him, nor for superseding the same afterwards. 
 18 
 
138 BY WHAT -WORDS APPOINTED. 
 
 Our next inquiry under this head is, by what words the ap- 
 pointment may be made. From what has been said it is obvious 
 that the office is created by a testamentary appointment. This 
 may be either express or implied. {Ex parte Morrell, 2 Brad. 
 32.) It is express when the testator, in plain words, nominates, 
 constitutes and appoints a person to be an executor. In like 
 manner any words which either directly or by way of circumlocu- 
 tion, recommend or commit to one or more the charge and office or 
 the rights which appertain to an executor, amount to such appoint- 
 ment. Thus, if the testator say, " I appoint my nephew my resid- 
 uary legatee, to discharge all lawful demands against niy will," the 
 nephew may be admitted as executor. ( Grant v. Leslie 2 Phil. 
 116.) 
 
 So in the case of a nuncupative will by a mariner at sea, when 
 the testator, in extremis, was asked who he wanted to settle his 
 affairs, answered, " I want you to do it," referring to the mate of 
 the vessel, it was said by Mason, J., in delivering the' opinion of 
 the court of appeals, that he thought that sufficient to appoint the 
 mate executor of the will. {Huhbard v. Hubbard, 4 Seld. 203.) 
 So an executor may be appointed by necessary implication ; as 
 where the testator says, I will that A. B. be my executor, if C. D. 
 will not. In this case C. D. may be admitted, if he pleases, into 
 the executorship. {Godol. pt 2. ck. 5, § 3.) 
 
 An executor may be appointed for a particular time, or for a 
 limited purpose. He may then be appointed general executor in 
 a codicil, by implication and without express words. {In the goods 
 of Aird, 1 Hagg. 336.) When the appointment is limited the pro- 
 bate should be limited. also.. 
 
 The appointment may be either absolute or qualified. It may 
 be qualified by limitation in point of time, or in reference to the 
 place wherein, or the subject matter whereon the office is to be ex- 
 ercised. A man may be appointed executor at the expiration of 
 five years, or any other time, from the death of the testator. Let- 
 ters testamentary cannot be granted to him till that time arrives, 
 and in the mean time, administration with the will annexed must 
 be granted, unless an executor is appointed, as he may be, for the 
 intermediate time. It may be limited in point of place ; one man 
 being appointed executor for the goods in one place and another 
 
NOT ASSIGNABLE. 139 
 
 in another. {Swinb. pt. 4, § 18, pi. 4. WentwartMs Ex'rs, lith 
 ed. 22.) 
 
 It may be limited as to tlie subject matter ; A. may be executor 
 for the jiousehold furniture, B. for the sheep, and so on. {Lynch 
 V. Bellew, 3 Phill. 424.) 
 
 The appointment may be conditional, and the condition may be 
 either precedent or subsequent. {Bac. Abr. tit. Ex'rs, C2.) But 
 although a testator appoint separate executors for different parts 
 of his property, yet quoad creditors, they are all executors and 
 may be sued as one. {Rose v. Bartlett, Cro. Car. 293.) 
 
 There is nothing in the revised statutes of New York, forbid- 
 ding or regulating the appointment of special executors. The 
 occasion does not often arise for the action of the courts, with 
 respect to this matter. 
 
 An executor had not at common law, nor has he now, the power 
 to assign the executorship to another. {Bac. Abr. tit. Ex'rs, E 9.) 
 The office was a trust which continued during his lifetime, and 
 could only be transmitted by will, at his death, to an executor 
 named by himself; and might so be continued from one to another, 
 until the series was broken by an intestacy. {Shook v. Shook, 
 19 Barb. 656.) But this doctrine as to the transmissibility of 
 the office, by executor to executor, is abrogated by the revised stat- 
 utes. (2 R. S. 71, § 17.) On the death of a sole executor or of 
 a surviving executor of any last will, letters of administration 
 with the will annexed, of the assets of the first testator left unad- 
 ministered, are required to be issued. The power and duties of 
 such administrator will hereafter be considered. The executor of 
 an executor has now no authority, as he had at common law, to 
 commence or maintain any action or proceeding relating to the 
 estate, effects or rights of the testator of the first executor, or to 
 take any charge or control thereof, as such executor. (2 R. S. 
 448, § 11- Shook v. Shook, supra.) 
 
 This was no doubt intended to be an effectual prohibition of ac- 
 tions, as well as proceedings, by an executor of an executor, the 
 subjects of which relate to the estate, effects or rights of the testator 
 of the first executor. 
 
 Nor will the court inquire, when an application is made for let- 
 
140 EXECUTOR OF HIS OWIT WRONa. 
 
 ters of administration with the will annexed, on the death of a 
 sole surviving executor, whether the appointment will lead to bene- 
 ficial results. If there be assets of the first testator left unadmin- 
 istered, jurisdiction is conferred upon the court, to grant the letters. 
 {Fumpelly v. Tinkham, 23 Barb. 321.) 
 
 There was, however, an exception to the rule of transmissibility 
 of the office. On the death of one of several executors the interest 
 of the original testator was held to vest in the surviving executor 
 or executors, and not in the executor of the deceased executor ; 
 and this was so whether the surviving executor had renounced or 
 not. The rule is the same at the present day. {Shook v. Shook, 
 supra. Wentwm-tKs Ex'rs, 14 Ed. 215. Jttdson v. Gibson, 
 5 Wend. 224.) 
 
 It was formerly considered, that if an individual interfered with 
 the goods of the deceased, he thereby made himself an executor in 
 his own wrong, or, as it was generally termed, an executor de son 
 tort. (2 Bl. Com. 507. Bacon's Abridg. title Ex'rs ^c. B 3.) 
 But this is no longer the rule. It is now enacted that no person 
 shall be liable to an action as executor of his own wrong, for hav- 
 ing received, taken or interfered with the property or efi"ects of a 
 deceased person ; but shall be responsible as a wrong-doer in the 
 proper action, to the executors or general or special administrators 
 of such deceased person, for the value of any property or effects so 
 taken or received, and for all damages caused by his acts to the 
 estate of the deceased. (2 R. S. 449, § 17.) This statute takes 
 away the remedy which the creditor before had against the fraud- 
 ulent vendee and transferred the action to the personal representa- 
 tive of the vendor. He may now sue, or controvert the validity of 
 the sale in any legal form, when that course is necessary for the 
 payment of the debts of the testator or intestate. {Babcock v. 
 Booth, 2 Hill, 185, 186.) The court in the same case adopts the 
 language of Chief Justice Savage, in Doe v. Backentose, (12 Wend, 
 548,) that under our present statute, executors and administrators 
 have a new character, and stand in a different relation from what 
 they formerly did to the creditors of the deceased persons with whose 
 estates they are entrusted. They are not now the mere represent- 
 atives of their testator or intestate ; they are constituted trustees, 
 
AOCEPTAKOE-'EENUNCIATIOIT. 141 
 
 and the property in their hands is a fund to be disposed of in the 
 best manner for the benefit of the creditors. (1 Vermilyea v. 
 Beatty, 6 Barb. 429.) 
 
 The intermeddling with the goods of the deceased by a person 
 having no rightful authority to do so, is not a matter now cogniza- 
 ble in surrogates' court, and the doctrines in relation to it do not 
 belong to the subject of this treatise. 
 
 Section II. 
 
 Of the executor's refusal or acceptance of the office, and of the 
 consequences of such refusal. 
 
 There are two ways in which an executor named in the will, may, 
 before taking the oath of office, be discharged from his trust. In 
 one of these modes he is active, and the other passive. The first 
 is by a renunciation of the office, and the last is merely by omit- 
 ting or declining to take upon him the office. 
 
 A renunciation is a written declination of the office of executor, 
 executed in the presence of two witnessed. (2 R. S. 70, § 8.) To 
 be effectual it must be proved before the surrogate, who took the 
 proof of the wilV and be filed and recorded by him. As a person 
 does not become an executor by intermeddling, it is presumed a 
 renunciation may be received, at any time, or in any stage of the 
 proceedings, if the executor has not taken the oath of office and 
 received letters testamentary. (See Appendix, Nos. 3 and 4.) 
 
 In an early case, it was held by the king's bench that an execu- 
 tor by administering had taken upon himself the executorship, and 
 put it out of his power to refuse, and that the ordinary had no 
 jurisdiction to accept a refusal, and grant administration, during 
 his life, cum testamento annexo to another. ( Wankford v. Wank- 
 ford, (1 Salk. 308.) But the law seems to be now in England 
 that the ordinary may accept the executor's refusal, notwithstand- 
 ing he had administered. ( WentwortKs ExWs, lith ed. 91.) In 
 Jackson v. Whitehead, (8 Phill. 577,) an executor who had taken 
 the oath of office and given an appearance in a suit, touching the 
 validity of a will, was allowed to renounce probate and become a 
 witness in the cause. In this case, however, probate was stopped 
 
142 REFUSAL TO SERVE. 
 
 by a caveat, so that letters testamentary had not been delivered 
 to the executor. 
 
 A person might at common law be deemed an executor as to 
 strangers, and yet his renunciation be accepted by the court. 
 ( Wentworth's Ex'rs, 92.) Such is not the laws ince the revised 
 statutes. For it-is presumed that on a plea of ne unque executor, 
 evidence of an intermeddling is not sufficient to make out the issue 
 on the part of the plaintiff. The proof whether the party is an 
 executor or not, depends on the records of the proper court, and 
 not on any act in pais, of the party. ( Vermilyea v. Beaty, 6 Barb. 
 429. Wever v. Marvin, 14 id. 376.) 
 
 With respect to the refusal of an executor, at common law, it is 
 laid down that it cannot be, verbally, or by word, but must be done 
 by some act entered or recorded in the spiritual court, and not be- 
 fore neighbors in the country. ( Wentworth's Ex'rs, 88. 14 Ed.) 
 
 If the surrogate be appointed executor he has no jurisdiction of 
 the cause, but the right of probate is given to the local officer, in 
 such county, elected to discharge the duties of surrogate, the county 
 judge or district attorney, as the case may be. (/See 2 R. S. 79, 
 § 48, as amended in 1830, and as amendedhy law o/1843, ch. 
 121, § 1. L. of 1847, ch. 470, § 32. 3 R. S. 165, 166, 5th ed.) 
 
 In England, if a party renounces in person, he takes an oath 
 that he has not intermeddled with the estate, and that he will not 
 intermeddle with a view of defrauding creditors. [Toller, 42.) 
 This is not required by the revised statutes, and does not seem to 
 be necessary. 
 
 It remains under this section to consider the refusal of an exec- 
 utor to serve, he being passive. This comes by his refusal or 
 neglect to appear before the surrogate and take the oath of office, 
 in which case if his co-executor appears probate is granted to him, 
 and the authority of the executor not appearing is thus superseded. 
 ( Wever v. Marvin, supra. Lawrence v. Lawrence, 3 Barb. Ch. 
 74.) But he may, at any subsequent time after the death of the 
 co-executor, appear and qualify, in which case letters testamentary 
 will be granted to him. So also, if he has actually renounced, he 
 cannot, as a matter of course, retract his renunciation until after 
 the death of the executor to whom letters were issued. {Judson 
 
EEFUSAL OF ONE EXECUTOR. 143 
 
 V. Gibson, 5 Wend. 227.) When all renounce, and administration 
 with the will annexed has been actually granted, it is too late to 
 retract the renunciation, at least during the life of the administra- 
 tor. {Toller's Law of Ex'rs, 422. Robertson v. McGeoch, 11 
 Paige, 642.) The general rule with respect to retraction seems 
 to be, that it must be made before other parties have acquired 
 rights, by the action of the probate court upon such renunci- 
 ation. {Id.) 
 
 If there be several executors named in the will, admitted to 
 probate, and no objections be filed against the granting of letters 
 testamentary to them, it would seem that the surrogate may issue 
 such letters to any one of them who appears and takes the oath of 
 ofiice, without requiring the others who do not appear to renounce 
 the appointment. The surrogate has no jurisdiction to summon 
 the non-appearing executors to take upon themselves the burden 
 of the office, except upon the application of another executor, or of 
 the widow, or some one of the next of kin, or a legatee or creditor 
 of the testator. If neither of them require the action of the court, 
 in that behalf, and the time for issuing letters has arrived, it would 
 seem that the surrogate may issue the letters to the one who ap- 
 pears and qualifies, the efi"ect of which will be to supersede the 
 executor not appearing, until he shall appear and qualify. 
 (2 R. S. 71, § 15.) There is a strong implication from the lan- 
 guage of this section, especially when compared with the 9th, 10th, 
 11th and 12th preceding sections, .that the non-appearing executor, 
 who is thus superseded, may appear at any time, even before the 
 death of those to whom letters have been granted, and on taking 
 the oath of office, be entitled to supplementary letters testamentary, 
 which will have the effect to join him in the administration of the 
 estate, with those to whom letters were originally granted. 
 
 It was probably to prevent the inconvenience which might result 
 from such a course that the provision was made in the sections 
 alluded to, authorizing the surrogate, on the application of those 
 interested, to compel the defaulting executor to appear and qualify 
 within a certain time therein to be limited, or in default thereof 
 that he will claim to have renounced the appointment. (2 R. S. 
 155, 156, § 9 to 12, 5th ed.) Jt is probable that the order of the 
 
144 EEFUSAL OF ONE EXECUTOR. 
 
 surrogate, in such a case, declaring and decreeing that such person 
 has renounced his appointment as such executor, will have the 
 same effect as if he had renounced the appointment by an instru- 
 ment in writing proved before the surrogate and recorded, and 
 prevent his retraction of it till the death of the last surviving ex- 
 ecutor to whom the letters were granted. 
 
 The old authorities are that when there are divers executors 
 named in the will, and some of them refuse and others prove the 
 testament, they who refuse may, after at their pleasure administer, 
 notwithstanding such refusal, before the ordinary. (BurnJs E. L. 
 title Wills, Probate, p. 611.) And this, the same author says, is 
 called a double probate, which is in this manner ; the first that 
 comes in, takes probate in the usual form, with reservation to the 
 rest. Afterwards, if another comes in, he also is to be sworn in 
 the usual manner, and an engrossment of the original will is to be 
 annexed to such probate in the same manner as the first ; and in 
 the second grant, such first grant is to be recited. And so as if 
 there be more that come in afterwards. {Id.) For notwithstand- 
 ing their refusal at first, they still continue executors ; and at any 
 time during the lives of their companions they may prove the will, 
 pay debts, make releases, and must be joined in all suits where the 
 co-executors are plaintiffs, because they are all privy to the will ; 
 but not when they are defendants, because the plaintiff is not 
 bound by law to take notice of any but those who have proved the 
 will. {Id. Swinb. ch 444.) In Bodle v. Hulse, (5 Wend. 313,) 
 this doctrine is recognized. The proper practice, says Savage, 
 Ch, J., is, when one renounces, to prosecute in the name of all the 
 executors named in the will, if living, and on summons to^ those 
 who will not join, there will be a judgment of severance, and then 
 the others proceed and recover in their own names. ( Toller, 44, 
 45. 3 Bacon, 32. Cro Jac. 420. Hensloe's case, 9 Coke, 37.) 
 The case oi Bodle v. Hulse, {supra,) arose before the revised 
 statutes. The effect of declaring that the issuing of letters testa- 
 mentary to one, is a supersedeas to all named in the will, and not 
 named in the letters testamentary, operates as an abrogation of 
 the rule requiring all to join in an action, whether named in the 
 letters, or not. Be that as it may, the legislature, at a later day, 
 removed all doubts on the subject, by enacting, that iu actions 
 
OF PROBATE OF WILLS. 145 
 
 brought by or against executors, it shall not be necessary to join 
 those as parties, to whom letters testamentary shall not have been 
 issued, and who had not qualified. {Laws 0/ 1838, p. 103. Law- 
 rence V. Lawrence, 3 Barb. Ch. 74.) This statute, although it 
 settles the question as to the efifect of the supersedeas upon parties 
 to an action, does not take away the right of retraction when the 
 person to whom letters have been issued is dead. It is presumed 
 that doctrine remains unaltered. 
 
 CHAPTER VI. 
 
 OF PROBATE, AND OF THE PROOF AND RECORDING OF WILLS 
 OF REAL ESTATE. 
 
 Section I. 
 
 Of Probate. 
 
 There has been some diversity of opinion as to what is meant 
 by the probate of a will. Formerly it was supposed to consist of 
 a copy of the will, a certificate, under the seal of the court, that it 
 was such copy, and the certificate of the proof of the will, all of 
 which were annexed to the letters testamentary, under the seal of 
 the court. {Kirtland's Stir. p. 46.) In many, perhaps most of 
 the counties, the same practice is continued at the present day. It 
 is believed, however, that the English practice did not treat the 
 letters testamentary as a part of the probate. (1 Wms. Ex'rs, 
 317.) The revised statutes speak of the letters testamentary as 
 a different instrument from the probate, the former as being the 
 foundation of the latter. It is provided that they cannot be issued 
 until after the will has been admitted to probate, nor then, until 
 after the expiration of thirty days, provided objections to such 
 issuing of them are filed by interested parties, unless the objec- 
 tions are sooner disposed of. (3 R. S. 154, §§ 1, 2, bth ed.) The 
 letters testamentary are the commission to the executors, and give 
 them a standing in court. {Daytoris Sur. 194.) It is the letters 
 testamentary alone, of which profert is made in an action by the 
 executor to recover a debt due to the testator in his lifetime. 
 (2 Chitty's PI. 56.) It affords authentic evidence that the will has 
 19 
 
146 OF PROBATE OF WILLS. 
 
 been admitted to probate, by the proper surrogate. The decree 
 of the surrogate having jurisdiction, declaring a will of personal 
 property duly executed, is conclusive evidence, in a collateral action, 
 of such execution, notwithstanding it be shown that there was but 
 a single subscribing witness to the will. [Vanderpoel y. Va7i 
 Valkenburgh, 2 Seld. 190. 2 R. S. 61, § 29.) It remains such 
 evidence until such probate is reversed on appeal, or revoked by 
 the surrogate, or the will is declared void by a competent tribunal. 
 {Id.) (For form of probate and letters see Appendix, No. 21.) 
 
 No right can be asserted in any court under such will, nor can 
 any power be exercised by an executor named therein, except to 
 pay funeral charges, and to do such acts as are necessary for the 
 preservation of the estate, until the will is admitted to probate and 
 letters testamentary are granted. (2 R. S. 71, § 16.) 
 
 Nor are the letters testamentary, as in England, merely opera- 
 tive as the authentic evidence of the executor's title. They impart 
 to him nearly all the power he possesses of carrying into effect 
 the will of the testator. Without them he cannot pay a debt of 
 his testator, or in any way charge the estate. The acts which he 
 is permitted to do before the granting to him of letters testamen- 
 tary, are such as any stranger might perform, at common law, 
 without being deemed an executor de son tort. 
 
 Before the revised statutes, the rule prevailing in England, ob- 
 tained here, of considering the probate, by which in common par- 
 lance was embraced not only the proof of the will but the granting 
 of letters testamentary thereon, as merely the authenticated evi- 
 dence, and not at all as the foundation of the executor's title. 
 Upon those principles it was held as a legitimate consequence, that 
 an executor, before proving the will, might do almost all the acts 
 incident to his office, except some of those which related to suits. 
 Thus it was decided that he might seize and take into his hands 
 any of the testator's effects ; he might enter peaceably into the 
 house of the heir, for that purpose, and take specialties and other 
 securities for the debts due to the deceased. He might pay or 
 take releases of debts owing from the estate, and he might receive 
 or release debts which were owing to it. So he might sell, give 
 away, or otherwise dispose of, at his discretion, the goods and chat- 
 tels of the testator ; he might assent to or pay legacies ; and he 
 
EXECUTOR'S POWEE BEFORE PROBATE. 147 
 
 might enter on the testator's terms for years, and all before pro- 
 bate. {Bac. Abr. tit. Ex'rs and Adm'i's, E 14. Wentworth's 
 Off. of Ex'r, Uth ed. 81 et seq.) 
 
 Although the power of the executor before probate, is now 
 greatly restricted from what it formerly was, yet in many respects 
 the probate when granted, is said to have relation to the time of 
 the testator's death. The law, for certain purposes, does not recog- 
 nize an interval as existing between the testator's death and the 
 issuing of letters testamentary to his executors. The rights in 
 relation to the personalty, which existed in the former, in his life- 
 time, are deemed by legal fiction to be vested at his death in the 
 latter. This retrospective operation of the probate is necessary, 
 in some instances, for the purpose of justice. Without it dam- 
 ages could not be recovered for an injury to the personal property 
 of the deceased, committed after the death of the testator and 
 before probate of his will. The same doctrine of relation extends 
 to criminal proceedings. Hence, if a man die, having made a will 
 and appointed an executor, the goods shall be supposed to be the 
 goods of the executor, even before probate is granted to him. 
 (2 Russell on Crimes, 99. 1 Hale, 514.) The revised statutes 
 have not interfered with this doctrine. 
 
 At common law, an executor might commence an action before 
 probate. It was enough if he had obtained the letters testament- 
 ary before declaring, and made profert of them in his declaration. 
 This made the commencement of the suit good by relation- (Bac. 
 Abr. Ex'rs and AdmUrs, E 1, p. 14.) The same rule applied in 
 equity. {Humphreys v. Humphreys, 3 P. Wms. 351.) But 
 this doctrine has been abrogated by the revised statutes, and no 
 suit can be commenced by executors, previous to the granting to 
 them of letters testamentary. ( Thomas v. Cameron, 16 Wend. 
 Rep. 579.) 
 
 Having thus shown, in a general way, what an executor may do 
 before probate, and to what extent the law of relation has_ been 
 modified by- the revised statutes, it will be proper next to inquire 
 in what court the application for probate is to be made* It will 
 be more convenient to consider, in a separate section, the proceed- 
 
148 BY WHAT COUET GRANTED. 
 
 ings to record a will of real estate. The doctrine in relation to 
 probate has reference to wills of personal property alone, or to 
 wills of a mixed character, disposing of both real and personal 
 property. There are some proceedings which are common to both 
 cases, and it will therefore be impossible to avoid all repetition. 
 
 Under the act of 1813, (1 R. L. 444,) and while the court of 
 probate was an existing tribunal, the surrogates of the different 
 counties had no jurisdiction to prove the will, or grant letters of 
 administration of the estate of a person, not an inhabitant of this 
 state, who died either within it or out of it, or of a person, being 
 an inhabitant, who died out of the state. In both those cases 
 the jurisdiction was in the court of probate. The power of the 
 court did not depend on the question of assets. {Hart v. Coltrain, 
 19 Wend. 380. Weston v. Weston, 14 John. 428.) It was 
 governed by the law of domicil. The jurisdiction of the surro- 
 gate depended on the fact, that the deceased person, at or imme- 
 diately previous to his death, was an inhabitant of the same county 
 with the surrogate. 
 
 When the court of probate was abolished it became necessary 
 to confer the jurisdiction it possessed upon some other tribunal. 
 This, so far as relates to testamentary matters, now rests upon 
 the revised statutes as amended by the act of 1837, ch. 460, § 1, 
 (3 R. S. 363, bth ed.) They provide that the surrogate of 
 each county, (and this embraces any other officer who by law is 
 required to discharge the duties of the office,) shall have jurisdic- 
 tion, exclusive of every other surrogate within the county for 
 which he may be appointed, to take the proof of last wills and 
 testaments of all deceased persons, in the following cases : 
 
 1. Where the testator, at or immediately previous to his death, 
 was an inhabitant of the county of such surrogate, in whatever 
 place such death may have happened. 
 
 2. Where the testator, not being an inhabitant of this state, 
 shall die in the county of such surrogate, leaving assets therein. 
 
 3. Where the testator, not being an inhabitant of this state, shall 
 die out of the state, leaving assests in the county of such sur- 
 rogate. 
 
 4. Where a testator, not being an inhabitant of this state, shall 
 
MANNER OF OBTAINING PEOBATE. 149 
 
 die out of the state, not leaving assets therein, but assets of such 
 testator shall thereafter come into the county of such surrogate. 
 
 5. Where no surrogate has gained jurisdiction under either of 
 the preceding clauses, and any real estate devised by the testator 
 shall be situated in the county of such surrogate. 
 
 These provisions embrace nearly all the cases which can arise. 
 But as there are no words of exclusion, and the clause in the re- 
 vised statutes forbidding the exercise of jurisdiction, not express- 
 ly given by some statute of this state, has been repealed ; (see 
 2 R. S. 220, 221, § 1, and repealing law of 1837, p. 536 ;) it has 
 been held that in a casus omissus, the surrogate should not de- 
 cline jurisdiction, because the law is silent as to the mode in 
 which it is to be exercised, where it is apparent that a proper oc- 
 casion to invoke his authority has arisen. The statutes regulate 
 so far as they go, the exercise of the jurisdiction in the particular 
 instances specified. {Kohler v. Knapp, 1 Bradf. Sur. Rep. 
 245.) It was well observed by the learned surrogate, in the case 
 just cited, that there are some cases not reached by the letter of 
 the act, and in regard to which, the jurisdiction of the surrogate 
 still subsists, though not expressly regulated. The case of a per- 
 son not an inhabitant of this state, dying in the county of the sur- 
 rogate, and leaving no assets there, but leaving assets in another 
 county ; and that of a person, not an inhabitant, dying in the 
 county, leaving no assets, but assets thereafter coming into the 
 county, are not provided for, in terms, by the revised statutes. 
 {Id. 2i2. ^. 91.) 
 
 It is proposed in the next place to point out the manner of ob- 
 taining probate, and to notice the practice of the surrogate's court 
 with respect thereto. 
 
 At common law the proper person to cause the will to be proved 
 was the executor named in it. Until renunciation, he was deemed 
 the sole person competent to be a party for the purpose, unless in 
 case of fraud or collusion. The New York statute authorizes the 
 executor, devisee or legatee named in the will, or any person 
 interested in the estate, to prove the will before the proper sur- 
 rogate ; either for probate or as a will of real estate. {L. of 1837, 
 p. 624, 8 4. 3 i2. S. 146, § 49, 6th ed.) It is competent, there- 
 
150 PEOBATE OF LOST WILL. 
 
 fore, for a legatee to make the application for probate, and even 
 ■when it has alrready been made by the executor, to intervene for 
 the purpose of having the will proved and his interest protected. 
 ( Walsh V. Ryan, 1 Bradf, 434. Foster v. Tyler, 7 Paige. 62.) 
 (For petition for citation, <fcc. &c., see Appendix, 5 to 11.) 
 
 If the will be lost or destroyed, the surrogate's court has no 
 jurisdiction to establish the will. {Bulkley v. Redmond, 2 Bradf. 
 281, 286.) In such a case whether the will be a will of real or 
 personal estate, and whether it be lost or destroyed by accident or 
 design, the former court of chancery, now the supreme court, pos- 
 sesses the power by statute to take proof of the execution and 
 validity of such will, and to establish the same, as in the case of 
 lost deeds. (2 R. S. 67, § 63., Sid. 153, 5tk ed.) The mode 
 of conducting the proceedings in the supreme court, belongs 
 to a treatise on the practice of that court, and is not within the 
 scope of the present work. 
 
 The decree of the court, establishing such will, is required to be 
 recorded by the surrogate of the county, to whom probate would 
 have belonged, if such will had not been lost or destroyed, and let- 
 ters testamentary, or letters of administration with the will annexed, 
 as the case may be, are to be issued thereon, in the same manner, 
 as upon wills duly proved before him. (2 R. S. 67, § 64.) 
 
 At common law, if the executor had not the will in his custody, 
 but some other person, the latter might be compelled to exhibit it 
 to the court. The revised statutes, as originally framed, author- 
 ized the surrogSite on the application of any person interested, to 
 issue a citation to such person having the will, requiring him to 
 produce the same at such time and place as he should deem reason- 
 able, to the intent that it might be proved. The neglect or refusal 
 to produce the will ia obedience to such citation subjected the de- 
 faulting party to imprisonment until he should produce it. (2 R. S. 
 60, § 25.) But this section was repealed by the act of 1837, 
 page 536, and none was substituted in its place. 
 
 The only existing provision compelling the production of a will 
 before the surrogate, is that by the 10th and 11th sections of the 
 first title, chapter 6, of the revised statutes, (2 R. S.b%; 3 id. 139, 
 bth ed.) Those sections authorize the issuing of a subpoena duces 
 tecum by the surrogate, commanding the person who has the cus- 
 
PROOF m COMMON FORM. 151 
 
 tody of the will to produce the same before the surrogate for the 
 purpose of its being proved. Disobedience to the writ is punishable 
 by imprisonment, until such will is produced. These sections 
 originally related only to wills of real estate, but by the act of 
 1837, page 528, § 18, they are made applicable to wills of both real 
 and personal estate, or either, and to a proceeding by citation as 
 well as by notice. 
 
 Hence the practice would seem to be, to apply to the court for the 
 subpoena duces tecum, after the preliminary proceedings had been 
 taken to prove the will. An order should be entered in the 
 minute book, authorizing the issuing of the subpoena duces tecum. 
 (See Appendix, Nos. 12, 15.) 
 
 With respect to the manner of proving the will for probate, there 
 were formerly two ways, to wit, the common form^ and per testes. 
 
 A will was said to be proved in common form, when the execu- 
 tor presented the will to the court and produced one or more of the 
 witnesses to prove its execution. This was done in the absence 
 and without citing any of the parties interested, and was formerly 
 the practice in this state. One objection to this mode was, that at 
 common law, the executor was liable, at any time within thirty 
 years, on the application of any person having an interest, to prove 
 the will in solemn form by all the witnesses. (1 Jarman on Wills, 
 219, Perkins' ed.) Thus, the probate granted on the proof in 
 common form, was constantly in danger of being revoked, during 
 that period. 
 
 The mode of proving a will in common form is in effect superse- 
 ded by that pointed out in the statute, and will soon be considered. 
 The period of thirty years within which, notwithstanding the will 
 was admitted to probate, its validity might be contested, is by the 
 revised statutes reduced to one year. (2 R. iS. 61, § 30.) 
 
 To prove a will in solemn form, per testes, at common law, all 
 those persons to whom the administration of the goods of the de- 
 ceased would belong, in case he died intestate, must be cited to be 
 present at the " probation and approbation of the testament." A 
 will thus propounded and proved per testes, was conclusive upon 
 all the next of kin who were cited to " see proceedings." {Newell v. 
 Weeks, 2 Phill. 224. Bell v. Armstrong, 1 Add. 365, 372.) 
 
152 PROOF BY LAWS OF THIS STATE. 
 
 Within one year after a -will has been admitted to probate with 
 us, though it be conclusive in all collateral actions, and upon the 
 parties cited, until it is reversed on appeal, or revoked by the sur- 
 rogate, or the will be declared void by a competent tribunal, its 
 validity may be contested. (2 B. S. 61, § 29. Collier v. Idley's 
 Ex'rs, 1 Bradf. 94.) And on such contest the executor is bound 
 to bring in his proof de novo, as upon the original application for 
 probate. {Id.) The mode in which that contest is to be con- 
 ducted, and the history of the changes in this state, will be found 
 well stated in the opinion of the learned surrogate of New York, 
 in the case last cited. 
 
 The practice in this state is regulated by statute, and repeals, 
 by implication, the old practice, of a proof in common form. 
 
 The statute, after prescribing that the executor, devisee or leg- 
 atee, or any person interested in the estate, may have the will 
 proved before the proper surrogate ; {Laws of 1837, p. 524, § 4 ; 
 3 R. S. 146, § 49, S>th ed. ;) points out specifically the facts which 
 the surrogate is required to ascertain, by satisfactory evidence, iu 
 case the will relates to personal estate alone, or to both real and 
 personal estate. In the former case, he is to ascertain the names 
 and places of residence of the widow and next of kin of the testa- 
 tor, or that upon diligent inquiry the same cannot be ascertained. 
 {L. of 1837, p. 525, § 5. S R. & 146, § 50, 5tft ed.) He is also 
 required to ascertain whether any and which of the persons men- 
 tioned are minors, and the names and places of residence of their 
 general guardians, if they have any ; and if there should be no 
 general guardian within this state, he is required by an order to 
 be entered to appoint a special guardian for such minor, to take 
 care of his interest in the premises ; and the written consent of 
 every person so appointed special guardian to serve as such, must 
 be filed with the surrogate. The testamentary guardian named in 
 the will to be proved, cannot for this purpose be deemed a general 
 guardian. 
 
 The surrogate is thereupon required to issue a citation, requiring 
 the proper persons, at such time and place as shall be therein 
 mentioned, to appear and attend the probate of the will. The cita- 
 tion is required to state who has applied for the proof of the will. 
 
CITATION HOW SERVED. 153 
 
 and whether it relates exclusively to either real or personal estate, 
 or to both real and personal estate. It must be directed to the 
 proper persons by name, stating their places of residence ; or if 
 any of them are minors, to their guardians by name, stating their 
 places of residence. If the name or place of residence of any per- 
 son who ought to be cited cannot be ascertained, such fact must 
 be stated in the citation. 
 
 The statute then directs how the citation shall be served on the 
 persons to whom it is directed. This is as follows : 1. On such as 
 reside in the same county with the surrogate, or an adjoining 
 county, by delivering a copy to such person, at least eight days 
 before the day appointed for taking the proof ; or by leaving a 
 copy at least eight days as aforesaid, at the dwelling house, or 
 other place of residence of such person, with some individual of 
 suitable age and discretion, and under such circumstances as shall 
 induce a reasonable presumption in the mind of the surrogate, 
 that the copy came to the hands or knowledge of the person to be 
 served with it, in time for him to attend the probate of the will. 
 2. On such as reside in any other county in this state, by deliver- 
 ing a copy personally to such person, or leaving it at his dwell- 
 ing house, or other place of residence, in the manner and under 
 the circumstances above mentioned, at least fifteen days before the 
 day appointed for taking the proof. - 3. On such persons as do not 
 reside in this state, by delivering a copy personally to such per- 
 sons, or leaving it at his or her dwelling house, or other place of 
 residence, not less than fifteen days nor more than ninety days 
 before the day appointed for taking proof of the will ; and on such 
 persons as do not reside in the state, or whose places of residence 
 cannot be ascertained, by publishing a copy of the citation in the 
 state paper for six weeks previous to the day appointed for taking 
 the proof. (Z,.o/1837,p. 525. Id 1840, p. 325. 3i2.-S'. 147, §53.) 
 
 Before proceeding to take the proof of the will, the surrogate is 
 further to require satisfactory evidence by affidavit, of the service 
 of the citation in the mode prescribed by law. If it has not been 
 duly served on all the persons who ought to receive notice, he 
 may adjourn the proceedings and issue a further citation for the 
 purpose of bringing in such persons. {Laws of 1837, pp. 525, 6. 
 3 R. S. 148, § 55, bth ed.) ^ 
 20 
 
154 PABTIES TO BE CITED. 
 
 The citation, it has been seen, must be directed to the proper 
 persons by name. It is not enough that.it is directed to the widow 
 and next of kin, alone. This requirement is no more than was 
 insisted on by the English ecclesiastical courts, in analogous cases. 
 {See Burn's E. L. tit. Citation.) (See Appendix, for form 
 
 No. 10.) _ _ • 
 
 The language of the statute will be satisfied by an application, 
 ore tenus, to the surrogate for the citation, and by making the 
 requisite preliminary proofs on an oral examination of witnesses, 
 or by an affidavit containing the requisite facts. But it is more 
 conformable to the ordinary proceedings of other courts in similar 
 proceedings, and equally a compliance with the requirement of the 
 statute, to present a petition in writing to the surrogate, duly veri- 
 fied, setting forth all the facts specified in the statute, and asking 
 for the proper action of the surrogate in the premises, together 
 with a prayer for process. No further proof would be needed in 
 the first instance. (For form of petition, see Appendix, No. 5.) 
 
 In proving the will for probate, which we are now considering, 
 the heirs at law, unless they are the same persons as the next of 
 kin, are not proper parties. This will be shown more fully in the 
 next section, when we come to treat of proving a will of real estate, 
 with a view to its being recorded as such before the surrogate. 
 
 The term next of kin, in the statute, is understood to embrace 
 only that class of persons to whom administration of the estate of 
 the deceased would be committed in case of intestacy. (1 Wms. 
 Ex'rs, 281.) It does not embrace the representatives of a deceased 
 next of kin, although such representative might be entitled, under 
 the statute of distributions, to a distributive share of the estate of 
 the deceased, had he died intestate. Such representative is not 
 entitled to administration, if a relative nearer akin will accept. 
 (2 R. S. 74.*) 
 
 In ascertaining who are the next of kin, it is the practice to 
 look back to the time of the testator's death. Those who are the 
 next of kin at that time are understood to be the persons intended 
 
 * Mr. Dayton, in. his Office of Surrogate, page 143, seems to intimate that all 
 should be cited who are entitled to share in the personalty, under the statute of 
 distributions. Sed Quere ■? 
 
PARTIES TO BE OITED. 155 
 
 by the act, and not those who may, by the subsequent death of 
 others, become next of kin at the time the question arises. Such 
 is the rule in granting administration. If the person entitled to 
 administration, as next of tin, dies, without obtaining letters, the 
 surrogate is not bound to grant administration to one who is not 
 entitled to a beneficial interest in the effects, although by the death 
 of intermediate persons he may have become next of kin at the 
 time the grant is required. This construction satisfies the letter 
 as well as spirit of the statute, and is conformable to the English 
 practice. {Savage v. Blythe, 2 Hagg. App. 150, where the whole 
 doctrine is discussed.) 
 
 A person may be entitled to distribution who is not entitled to 
 administration, and therefore the statute of distributions does not 
 afford the test as to the persons entitled while any person who was 
 next of kin at the death of the deceased, is living. But when all 
 the original next of kin are dead, the practice of the prerogative 
 court is to grant administration to the person entitled to the ben- 
 eficial interest, whether next of kin or not. (/rf.) And it is pre- 
 sumed, if all the persons who were next of kin of the testator are 
 dead, before a will is offered for probate, the citation should be 
 served, as in the English practice, on the persons having the bene- 
 ficial interest, under the statute of distributions, without regard to 
 proximity of blood. By the death of intermediate persons, it may 
 happen that persons who have become next of kin have no interest 
 in the estate. It would be idle to cite them to attend the probate 
 of a will, when they could have no motive to be present. Such 
 a case is not within the statute, and the court is left to proceed as 
 at common law. Those who have the interest would, in such case, 
 clearly be entitled to administer, and of coutse are the per- 
 sons on whom the citation to attend the probate of the will should 
 be served. {Savage v. Blythe, supra. Almes v. Almes, 2 Hagg. 
 App. 155.) 
 
 In accordance with these principles, in a case before the surro- 
 gate of New York, where it appeared that the deceased, at the time 
 of her death, was a married woman, it was held that the citation to 
 her next of kin was not sufficient to authorize the proceeding, and 
 that a new citation must issue to the husband. {Lush v. Alburtis, 
 1 Bradf. 456.) By the acts of 1848 and 1849, authorizing mar^ 
 
156 IN WHAT PAPER PUBLISHED. 
 
 ried women to take, hold, convey and devise property, they may 
 make valid wills. But as no special provision is made in the acts 
 touching the probate of their wills, it is necessary to fall back on 
 the principles of the common law, regulating the procedure of 
 the court. Notwithstanding those acts relative to the rights of 
 married women, the surplus of their personal estate, when they 
 die intestate, leaving a husband surviving them, belongs, after the 
 payment of debts, to the husband or his representatives, and not 
 to the next of kin of the wife. The relatives of the wife, there- 
 fore, in such a case, have no interest, and are not necessary par- 
 ties to the proceeding. [Id.) ^ 
 
 In case it should be required to publish a notice or a copy of 
 the citation in the state paper, if there be a contest as to which ia 
 the rightful paper, it will be sufficient that the proprietors of the 
 paper in which it is published were acting under color of an ap- 
 pointment, and exercising the functions pertaining to the official 
 character de facto. ( Wickwire v. Chapman, 15 Barb. 304, per 
 Johnson, J.) 
 
 By the act of 1840, p. 326, § 2, it is provided that where a will 
 of personal estate duly executed in this state by a person not a 
 resident of this state, shall in the first instance have been duly 
 admitted to probate in a court of a foreign state or country, letters 
 testamentary or of administration with the will annexed, may be 
 issued thereon by any surrogate having jurisdiction, upon the pro- 
 duction of a duly exemplified or authenticated copy of such will, 
 under the seal of the court in which the same shall have been 
 proved. (3 R. S. 147, 148, § 54, 6th ed.) 
 
 This statute introduces an important change in international 
 jurisprudence. While it is generally admitted that a will of per- 
 sonal estate must, in order to pass the property, be executed ac- 
 cording to the law of the place of the testator's domicil, [Story's 
 Conflict of Laws, § 468,) yet the executors named in the will 
 cannot intermeddle with or sue for the eifects of the testator in 
 another state, unless the will be proved in the latter state, or it is 
 permitted hy some law of the state. {Kerr v. Moon, 9 Wheat. 
 565.) Letters testamentary give to an executor no authority to 
 sue for personal estate of the testator out of the jurisdiction of 
 the state by which they are granted. {Id.) Hence the statute 
 
GUAEDIAN AD LITEM. 157 
 
 of 1840 affords a short and convenient mode, of authorizing a for- 
 eign executor to pursue the property of the testator in the courts 
 of this state. 
 
 In case any of the next of kin are under the age of twenty-one 
 years, we have seen that the surrogate is to appoint a special 
 guardian, for such as have no general guardian ; and this before 
 the citation issues. {See ante, p. 152.) This latter provision 
 was first made hy the law of 183T. The general principles with 
 respect to proceedings in surrogates' courts, where infants were 
 parties, were fully explained in 1833, in the case of Killett v. 
 Rathbun, (4 Paige, 106 et seq.) The citation of a minor, the 
 chancellor observes, " should be served in the presence of his legal 
 guardian, or in the presence of some person upon whom the 
 actual care or custody of the minor for the time being has prop- 
 erly devolved ; and evidence of the service of the citation on the 
 ' minor merely, is not suflScient, especially if the minor is so young 
 as to be incapable of understanding the object or intent of such 
 service. {Cooper v. Green, 2 Add. E. R. 454. Law Pr. E. 
 Courts, 59.) The citation in such case should direct the minor to 
 appear according to law, that is, by his guardian lawfully instituted. 
 {Law's Pr. 88.* 1 Bro. Civ. and Adm. L. 454.) And if a minor 
 who is cited before the surrogate has no general guardian, or if the 
 general guardian has an interest adverse to the rights of the 
 minor, so that he cannot act as guardian in relation to that matter, 
 a guardian ad litem may be appointed by the surrogate to protect 
 the rights of the minor." 
 
 It is a power' incident to all courts to appoint guardians ad litem 
 for infants. {Hargrave, No. 70, to Co. Lyt.) The mode in which 
 this is to be exercised in courts of record, as to appointing a next 
 friend for an infant plaintiff, or guardian ad litem for an infant de- 
 fendant, is prescribed by statute. {Code of Procedure.) 
 
 In proceeding to prove a will of real estate before the surrogate, 
 power was given to appoint a guardian ad litem for infant heirs, 
 who have no general guardian, (2 R, S. 57,) but this was altered 
 in 1837, and the appointment of a guardian ad litem for infants 
 was placed upon the same footing, whether the will was to be 
 proved as a will of real estate or only admitted to probate. (3 R. S. 
 147, § 51, 6th ed.) 
 
158 GTJ^AEDIAN" AD LITEM. 
 
 On an application before the surrogate for the sale of real estate 
 of the deceased for the payment of debts, a guardian ad litem must 
 be appointed for the infant devisees or heirs of the deceased, who 
 must be a disinterested freeholder. If any of the minors are within 
 the county of the surrogate, they are required to be personally 
 served with notice five days previously, of the intention to apply 
 for such appointment, in order that they may be heard in the 
 selection of the guardian. And where the minor is under fourteen 
 years of age, the notice must be served on the person in whose 
 custody he may be, or with whom he may live, or on such relative 
 as the surrogate shall designate, instead of a personal service. If 
 he has a general guardian in the county of the surrogate, such gen- 
 eral guardian is required to appear and take care of the interest of 
 the minor, and in that case no special guardian need be appointed 
 in the premises. (3 R. &. 187, § 4 ito 7, bth ed.) 
 
 As the proceedings for recording wills of the real estate and for 
 the sale of the real estate of deceased persons for the payment of 
 their debts did not belong to the common law jurisdiction of the 
 court, a legislative provision for the appointment of guardians ad 
 litem was deemed necessary. In all other cases, the right to make 
 the appointment is an incidental power of the courl; at common law. 
 
 If the heirs or next of kin, or either of them, be a married wo- 
 man, the proper course is to serve the citation on both the husband 
 and wife. {Keeney v. Whitmarsh, 16 Barb. 141. Bleecker v. 
 Lynch, 1 Bradf. 458.) The statute does not, in terms, require 
 such service, when the sole interest is in the wife, but it is deemed 
 most prudent to do so. {Bibby v. Myer, 10 Paige, 220.) 
 
 The mode of making the appointment of a guardian ad litem for 
 an infant complainant should be on petition signed by the minor, if 
 above the age of fourteen years, or by some relative in his behalf, 
 if under that age. The proposed guardian should sign a written 
 consent, which should be duly proved by afiidavit, unless signed in 
 open coui-t, and filed. An order for the appointment should be 
 thereupon entered in the minute book, and the appointment made 
 out, under the seal of the court. This appointment should regularly 
 be made before the commencement of the proceedings. (Appen* 
 dix. No. 5 to 8.) 
 
HO"W APPOINTED. 159 
 
 For an infant defendant, in cases not specially regulated by stat- 
 ute, the guardian ad litem is usually appointed on the return of the 
 citation. If it is made on the application of the minor, in obedience 
 to the injunction of the citation, similar proceedings should be 
 adopted to those described above, as required to be pursued by an 
 infant complainant. But if, as is more usual, the infant omits to 
 appear, the court then, on motion of the complainant, appoints 
 some discreet person, whose interest is not adverse to that of the 
 minor, and who wiU consent to act. {Knickerbocker v. DeFreest, 
 2 Paige, 304. In the matter of Frits, Id. 374.) The practice 
 should be assimilated to that under the code in courts of record. 
 The provision of the code is that on "neglect of the infant to apply 
 for the appointment of a guardian ad litem, any other party to the 
 action, or a relative or friend of the infant, may make the applica- 
 tion after notice to the general or testamentary guardian of such 
 infant, if he has one within this state, if he has none then to the 
 infant himself, if over fourteen years of age and within this state, 
 or if under that age and within the state, to the person with whom 
 the infant resides. {Code o/1852, § 116, siib. 2.) 
 
 The same steps are taken to admit a will to probate, on the ap- 
 plication for letters of administration with the will annexed, as 
 are pursued by an executor. (For the pleadings in such cases, see 
 part 1, § 5, on the pleadings and process in surrogates' courts, 
 ante.) 
 
 We shall postpone to a subsequent section the subject of testi- 
 mony in testamentary causes. Assuming that the testimony taken 
 before the surrogate on the return of the citation, or on some other 
 day to which the cause has been adjourned, is such as to satisfy 
 him of the genuineness and validity of the will, he then admits it 
 to probate, by an order entered in the minute book. The will is 
 then to be recorded in the book of wills, and the testimony taken 
 in the book of minutes ; and the surrogate is required to enter in 
 his minutes the decision which he may make concerning the suffi- 
 ciency of the proof or validity of any will which may be offered 
 for probate; and in case he shall decide against the sufficiency of 
 the proof or the validity of any such will, he shall, without fee or 
 charge, state the ground upon which the decision is made, if re- 
 
160 IlETTEES TESTAMENTARY— WHEN ISSUED. 
 
 quired by either party. {Laws of 1837, p. 528, § 21. 3 R. S. 
 150, § 69, 5ik ed.) A certificate of the proof is made out, annexed 
 to a copy of the will, and is sealed with the seal of the court. 
 This certificate is recorded with the will, and the record, both of 
 the will and the certificate, are certified by the surrogate. The 
 copy of the will, and the proper certificates of proof under the 
 seal of the court, constitute the probate of the will. (See ante, 
 page 145, and the forms in the Appendix, No. 21.) These proceed- 
 ings do not authorize the executor to do any act. They are the 
 foundation for the letters testamentary. (See Appendix, No. 22) 
 
 Under the former laws of this state, letters testamentary issued 
 to the executor immediately tpon the granting of probate, on the 
 executor's taking the oath prescribed by law. The revised statutes 
 restrained the issuing of letters testamentary until the expiration 
 of thirty days after probate, to enable those interested in the estate 
 to file objections against any of the executors named in the will. 
 (2 R. S. 69, § 2.) The law of 1837, § 22, (3 R. S. 154, § 2, 5th 
 ed.) permitted them to be granted at any time after the will should 
 have been proved,. unless an affidavit should be made by the widow, 
 legatee, next of kin, or a creditor of the testator, setting forth 
 that such person intended to file objections against the granting 
 of such letters testamentary, and that he was advised and believed 
 that there was just and substantial objections to the granting of 
 such letters to the executors named in the will, or some or one of 
 them. Upon filing such affidavit with the surrogate he is required 
 to stay the granting of letters testamentary, at least thirty days, 
 unless the matter shall be sooner disposed of. It is presumed 
 that this period of thirty days is to be computed from the filing of 
 the affidavit and not from the date of the probate, if they occur on 
 difierent days. {Burwell v. Shaw, 2 Brad. 322.) 
 
 Letters testamentary run in the name of the "people, and are 
 tested in that of the surrogate, when issued by him, and are issued 
 under his seal of office, and signed by him. If issued by any 
 other officer, discharging the duties of the office of surrogate, they 
 are tested in the name of such officer. If issued by the county 
 judge, or district attorney, as they may be in cert9.in cases where 
 the surrogate is disqualified to act, they must be tested in the 
 
OATH OF EXEGUTOE. .161 
 
 name of such officer, and issued under the seal of the county court. 
 (2 R. S. 80, § 55. 3 id. 167, § 73, bth ed. Laws of 1847, p. 329.) 
 
 When' issued by the surrogate, they are required to be recorded 
 in the book provided for that purpose, and the record thereof to 
 be duly certified. They cannot be issued until the executor has 
 taken and subscribed an oath or affirmation before the surrogate, 
 or in case of his sickness or other inability to attend the surro- 
 gate, before any officer authorized to administer oaths, that he will 
 faithfully and honestly discharge the duties of an executor. This 
 oath must be filed with the surrogate. (2 R. iS. 71, § 13.) The 
 59th section of the act of 1837, p. 534, permits this oath to be 
 taken in all cases, not only before the surrogate, but also by a 
 commissioner of deeds, supreme court commissioner, or judge of 
 the county courts. Since the office of supreme court commissioner 
 has been abolished by the constitution of 1846, it is presumed it 
 may be taken by any officer by whom the functions of the supreme 
 court commissioners are now discharged. {Hayner v. James, 17 
 N. Y. Rep. [3 Smith,] 316.) In Kings county the clerk or clerks 
 of the surrogate of that county are vested with power to adminis- 
 ter this oath. (Laws of 1849, p. 235.) And in the city p,nd county 
 of New York the same authority is given to the assistants appointed 
 by the surrogate. (Laws of 1850, p. 384.) 
 
 The usual time for taking this oath is immediately preceding 
 the issuing of the letters testamentary. It is presumed, however, 
 that it may be administered at any time after the will has been ad- 
 mitted to probate, if no objections be filed. (For form of oath, 
 see Appendix, No. 19.) 
 
 The statute provides that all wills whenever proved according 
 to law, except such as are required to be deposited, shall, after being 
 recorded, be returned on demand to the person who delivered the 
 same ; or in case of his death, insanity or removal from the state, 
 to any devisee named in such will, or to the heirs or assigns of 
 such devisee ; or, if the same relate to personal estate only, to any 
 acting executor of such will, or administrator with the will annexed, 
 or to a legatee named therein. (2 R. S. 66, § 54.) 
 
 We have already spoken of cases arising under the act of 1840, 
 (See ante, page 156,) where a will of personal estate, duly execu- 
 21 
 
162 FOREIGN EXEOUTOE. 
 
 ted -within this state by a person not a resident of this state, shall 
 have been duly admitted to probate in a court of a foreign state or 
 country, and have shown under what circumstances the surrogate 
 having jurisdiction, may issue letters testamentary or of adminis- 
 tration -with the will annexed upon the production of a duly authen- 
 ticated copy of such -will, under the seal of the court in which it 
 shall have been proved. But this statute does not cover the whole 
 ground. The act of 1840 applies only to the will of non-residents, 
 duly executed within this state. 
 
 But a different case may arise, where a person not an inhabitant 
 of this state shall die at home, leaving assets in this state. In such 
 a case if no application for letters of administration be made by a 
 relative entitled thereto, and legally competent, and it shall appear 
 that letters of administration on the same estate, or letters testa- 
 mentary, have been granted by competent authority, in any other 
 state of the United States, then our statute provides that the per- 
 son so appointed, on producing such letters, shall be entitled to 
 let^iers of administration in preference to creditors or any other 
 person except the public administrator of New York. (2 R. S. 
 75, § 31.) , This administration is granted without citation, and is 
 doubtless auxiliary to the original administration. The statute 
 provides only for the case of persons not inhabitants of this state, 
 leaving assets in this state. Should such person die, leaving no 
 assets in this state, and assets, after his death, should come to the 
 state, or for any reason the obtaining a grant of administration, or 
 of letters testamentary in this state become necessary, the foreign 
 executor or administrator must proceed as at common law to obtain 
 them. Nor does the statute aid any other executor or administra- 
 tor, than such as is appointed by some other of the United States. 
 If the appointment proceeds from a foreign government, other than 
 one of the United States, an appointment must be obtained here, 
 in the same way as if no previous appointment had been made. 
 
 It has been repeatedly decided and may be said to be a fixed 
 rule, that the executor or administrator of a person who dies in a 
 foreign land and receives his appointment from a foreign tribunal, 
 cannot maintain an action here by virtue of the letters testament- 
 ary or letters of administration granted to him abroad. But the 
 appointment of the foreign tribunal will be considered sufficient 
 
WILL OF FOKEIGNEE. 163 
 
 authority for the proper court to issue an ancillary probate, or let- 
 ters of administration, as the case may be. (Fenwick v. Sears, 
 1 Cranch, 259. Dixoris Eths v. Ramsay, 3 id. 319, 323. Kerr 
 V. Moore, 9 Wheat. 565. Morrell v. Dickey, 1 John. Ch. 153.) 
 The rule as settled in England, and by the usage of all civilized 
 nations, as to the validity of wills made abroad, and the succession 
 and distribution of the real and personal estate of foreigners, has 
 repeatedly been declared to constitute a part of the municipal juris- 
 prudence of this country. {Id.) 
 
 The rule at common law is this ; if a will be made in a foreign 
 country and proved there, disposing of personal property in this 
 country, the executor must prove the will here also. ( Tourton v. 
 Flower, 3 P. Wm. 369.) So if the testator was domiciled in Scot- 
 land, and left assets there and in England, the will is proved in 
 the first instance in the court of great sessions in Scotland, and a 
 copy duly authenticated being transmitted to England it is proved 
 in the ecclesiastical court ; and deposited as if it was an original 
 will. {Toller, 10.) 
 
 If the deceased was a foreigner, domiciled abroad, and his will 
 is brought into the ecclesiastical court for the purpose of being ad- 
 mitted to probate, the court in deciding whether it is a valid, will 
 or not is guided not by the English law, but by the law of the country 
 where the deceased was domiciled. {Curling v. Thornton, 2 Add. 
 6, 21.) 
 
 Upon this ground, it is said to have been the practice of the pre- 
 rogative court, upon the production of an exemplification of the pro- 
 bate granted by the proper court, in the country where the deceased 
 died domiciled, for the prerogative court to follow the grant upon the 
 application of the executor, in decreeing its own probate. {Larpent v. 
 Sindry, 1 Hagg. 382. In the goods of Crimgan, id. 548. ) The same 
 practice is adopted in this state. {Isham v. Gibbons, 1 Bradf. T5.) 
 
 But although the English courts thus admit that the question 
 of the validity of the will of z, foreigner, domiciled abroad, ought 
 to be determined according to the law of the country where the 
 testator died domiciled, yet they have questioned whether the rule 
 extends to the case of a British subject domiciled in a foreign 
 country. In the case of Curling v. Thornton, {supra,) Sir John 
 Nicholl expressed his doubts whether a British subject was en- 
 
164 EXPATRIATION". 
 
 titled so far " exuere patriam " as to select a foreign domicil in 
 complete derogation of his British domicil, and thereby to render 
 his property liable to distribution, even in cases of intestacy, ac- 
 cording to any foreign law ; still less thereby to make the validity 
 of his will depend on its conformity to that law. 
 
 At all events it is clear on British authority, that the mere resi- 
 dence of a British subject in a foreign country at the time of mak- 
 ing his will and his decease, will not cause its validity to depend 
 on the law of the country where he so resided. ( Curling v. Thorn- 
 ton, supra. Anstruther v. Chalmer, 2 iSitns. 1.) 
 
 The subject of expatriation, as it is received in this country, is 
 ably reviewed by Chancellor Kent in his 25th lecture. (2 Kent's 
 Com. 37 to 73.) The conclusion which he reaches, from an exam- 
 ination of the American adjudications, is, that a citizen cannot re- 
 nounce his allegiance to the United States, without the permission 
 of the government ; and that as there is no existing legislative 
 regulation on the case, the rule of the English common law remains. 
 It follows, therefore, that the practice of the ecclesiastical courts 
 on this subject, so far as it is not altered by our own state, affords 
 the only safe guide in cases of this nature. 
 
 The legislature, in 1830, made some further provisions for proving 
 wills, executed by persons out of the state, according to the laws of 
 the country in which they are made, or where the witnesses reside 
 out of the state, by permitting the proof to be taken on a commission 
 issued out of the supreme court. {Laws of 1830, pp. 388, 399, 
 §§ 63 to 69, as amended hy the Constitution of 1846, and subse- 
 quent legislation. (3 R. S. 152, 153, 5th ed.) The practice 
 in these cases belongs to that of the supreme court, rather than 
 the surrogate. Suf&ce it to say, that the will is to be established 
 in the supreme court, and transmitted to the surrogate of the 
 county where the assets of the deceased are. The surrogate is 
 then authorized to issue letters testamentary or of administration 
 with the will annexed on the will so proved ; and the like power, 
 also, is conferred upon him where a will has been admitted to pro- 
 bate in a foreign country, upon the production of a duly exempli- 
 fied or authenticated copy of the will, under the seal of the court 
 in which it shall have been proved. But no will of personal es- 
 tate, made out of this state, by a person not being a citizen of this 
 
COMMISSION TO EXAMINE WITNESS. 165 
 
 state, can be admitted to probate under the foregoing provisions, 
 unless such will shall have been executed according to the laws of 
 the state or country in which the same was made. This last 
 enactment is in conformity to the English decisions in the cases 
 cited. Under these provisions, the chancellor decided, in the mat- 
 ter of Roberts' will, (8 Paige, 446,) that a will of personal prop- 
 erty, executed out of this state, by a person domiciled where such 
 will was executed, and who continued to reside there until his 
 death, did not require the attestation of two witnesses as provided 
 by the revised statutes ; and that it could not be admitted to pro- 
 bate unless executed according the laws of the state where it was 
 made. {Id. 519. Ex parte McCormick, 2 Bradf. 169.) 
 
 The sections we have been considering do not provide for the 
 case of a will executed according to the law of the testator's donoi- 
 cil, but not according to the law of the place where it was made. 
 But this omission is, in effect, cured by the 77th section of the act 
 of 1837, p. 537, which authorizes the surrogate to issue a commis- 
 sion to take the testimony of a foreign witness in the same manner 
 as by law the same is done in any court of record. This author- 
 ity is given on any proceedings or matters in controversy before 
 a surrogate, where the testimony in any other state or territory of 
 the United States, or any foreign place, is required by any party 
 to such proceedings or controversy. It is doubtless applicable to 
 the case of the proof of a will- whether of real or personal proper- 
 ty, and will enable the surrogate to dispense with the aid of the 
 supreme court in such cases. {Isham v. Gibbons, 1 Bradf. 70.) 
 
 ■ If a will be in a foreign language the probate is granted of a 
 translation. ( Toller, 72.) 
 
 With a view to preserve the record of all important transactions 
 in the surrogates' courts, it is wisely provided that the testimony 
 taken by the surrogate, in relation to the proof of any written or 
 unwritten will, and in any controversy relating to the granting of 
 letters testamentary or of administration, or the revoking of the 
 same, shall be reduced to writing, and entered by him in a proper 
 book, to be preserved as part of the books of his office : if taken 
 by any county judge or district attorney, the same shall be filed 
 in the office of the clerk of the county. (2 R. S. 80, § 57.) 
 
166 WHAT WILL TO BE PROVED. 
 
 The surrogate is also required to record in his books, to be 
 provided by him, all wills proved before him, and all letters testa- 
 mentary or of administration, and all letters appointing a collector, 
 with all things concerning the same. The records of such wills 
 and letters, and the transcripts thereof, duly certified by the sur- 
 rogate having the custody of such records, under his seal of office, 
 is made evidence in all courts, as far as respects any personal estate, 
 in the same manner as if the originals were produced and proved. 
 {Id. § 58.) 
 
 A copy of the will of persons not inhabitants, admitted to pro- 
 bate, and also a copy of letters testamentary granted upon such 
 will, are required to be transmitted to the secretary of state within 
 ten days after probate, to be filed in his office, the expense of 
 which is paid by the state. {Id. 59.) 
 
 With respect to the instrument of which probate is necessary, 
 the criterion seems to be, according to the English books, whether 
 it he testamentary and operates on personal estate. If such be its 
 character, whatever be its form, it should be admitted to probate 
 in the proper ecclesiastical court, otherwise its existence cannot be 
 recognized in any other court, either of law or equity. (1 Wms. 
 JEx'rs, 320, 4:tk Am. ed.) 
 
 If it barely appoint a testamentary guardian, it need not be 
 proved., {Gilliat v. Gilliat, 3 Phill. 222. 2 Kent's Com. 225, 
 lecture 30.) 
 
 Where the will respects land alone, and does not dispose of 
 personal property, it is said in the English books, that it ought 
 not to be proved in the spiritual court. (1 Wms. Ex'rs, 321.) 
 Nor is it necessary there to have it admitted to probate, to entitle 
 a legatee to recover his legacy out of the real estate. ( Tucker 
 V. Phipps, 3 Atk. 361.) 
 
 I am not aware that the precise question has been decided in 
 this state, under the revised statutes. It is believed, however, 
 that all wills in which an executor is nominated, whether relat- 
 ing to real or personal estate, should be admitted to probate. 
 This results from various provisions in the revised statutes. Thus, 
 it is provided that an executor, not named in letters testamentary, 
 cannot execute a power to sell real estate. He is superseded. 
 
WILLS OF EEAL ESTATE. 167 
 
 ( Ogden V. Smithy 2 Paige, 195.) No person, it has been seen, can 
 be an executor de son tort ; therefore, there is no person to be sued 
 as the representative of the deceased, but his rightful executor, ad- 
 ministrator or heir. The rightful executor cannot be sued till 
 letters testamentary have issued to him. Nor can an administra- 
 tor be appointed while there is an executor competent to act. 
 The creditor must wait until the executor renounces, or until he 
 has been summoned to appear and qualify, and by reason of his 
 default, is declared to have renounced. (2 R. iS. 70, 71.) 
 
 A nuncupative will must be admitted to probate. But this spe- 
 cies of will is now limited only to wills made by a soldier while 
 in actual service, or by a mariner while at sea. (2 R. S. 60. 
 Hubbard v. Hubbard, 4 Seld. 196. S. C. 12 Barb. 148. Ex 
 parte Thompson, 4 Bradf, 154. Prince v. Hazleton, 20 John. 
 502.) The preliminary proceedings to prove it are similar to those 
 in other cases. 
 
 Section II. 
 
 Of the proof and recording of wills of real estate. 
 
 The importance of some provision for recording wills of real 
 estate, so that the record or an authenticated copy thereof might 
 be evidence in a contest relative to the estate devised, was felt at 
 an early period, in this state. Thus, by the 9th and following 
 sections of the act of 1786, (1' Greenleaf 239,) for the relief of 
 creditors as against heirs, devisees, executors and administrators, 
 and for proving wills respecting real estate ; it was enacted 
 that in all cases where any real estate should be devised by 
 any last will or testament, it should be lawful for the executor, 
 or any other person interested in such real estate, if they or any 
 of them should think proper, to cause such will to be brought before 
 the court of common pleas of the county where the lands were sit- 
 uated, to be proved. And the court was authorized, if fifteen 
 days' notice of the intention of proving the said will had been 
 given to the heirs of the testator, to cause the witnesses to the 
 will to be examined in open court. The examinations were to be 
 in writing ; and if it appeared to the court that such will was 
 
168 KECOEDING- WILLS OF REAL ESTATE. 
 
 duly executed according to law, and that the person who executed 
 the same was, at the time of executing it, of full age, and of sound 
 mind and memory and not under .any restraint, then the said court 
 was required to order and direct the clerk of the court to record 
 such last will and testament, together with the proof thereof so 
 taken in the said court, in a book to be provided by the clerk for 
 that purpose. 
 
 If the lands or real estate devised, were situated in several 
 counties, the will was required to be proved in the supreme court 
 and recorded by a clerk of that court. The record of the will was 
 declared to be as good and effectual in all cases, as the original 
 will would be if produced and proved. 
 
 The court in which the will was to be proved was clothed with 
 ample power to compel the production of the will, and the attend- 
 ance of witnesses, on the application of any interested person. 
 But doubts were early entertained whether a will or codicil, when 
 one or more of the witnesses to the same were dead, or did not 
 reside in the state, could be proved and recorded, according to the 
 act. To remove these doubts, an explanatory act was passed in 
 1790, (2 Greenl. 325,) by which it was enacted that when any 
 witness to any will should be examined in any court, according to 
 the former act, and it should appear to the same court that the 
 other witness or witnesses were either dead or did not reside within 
 this state, the court should take, in open court, such proof of the 
 handwriting of the testator, or of the witnesses or witness, so dead 
 or absent, or of such other circumstances as would be proper to 
 prove the same will or codicil upon a trial at law; and should 
 cause all such examinations and proofs to be reduced to writing. 
 And the court was further required, if it should appear that such 
 will or codicil was duly executed according to law, that the testator 
 was, at the time of executing the same, of full age, and of sound 
 mind and memory, and not under any restraint, to direct the clerk 
 of the same court to record the said will and proofs, according to 
 the direction of the said act. The same section also provided for 
 taking the proof of a will when all the witnesses were dead or 
 resided out of the state. The proofs in the latter case were to be 
 such as would be required to prove the will on a trial at law, and 
 were to be reduced to writing and recorded, and to be of the same 
 
EEOOKDING "WILLS OF KEAL ESTATE. 169 
 
 force and effect in any controversy relative to said -will, as if taken 
 in open court, on such trial, provided it should appear that the 
 lands in question had been uninterruptedly held under the said 
 will for the space of thirty years. The will was required to be 
 deposited with the clerk, who was authorized to give copies of it ; 
 but it was not to be recorded unless it appeared on the examina- 
 tion aforesaid, that the lands claimed under it, or some part thereof, 
 had been held under it for thirty years previous thereto. 
 
 The foregoing statutes were incorporated into one, and re-enacted 
 in 1801 ; but the period of thirty years was reduced to twenty. 
 (1 K. Sr R. 178, 179.) And at the revision of the laws in 1813, 
 it was again retained, with no essential alteration ; except by the 
 latter act a transcript of the record of such will, certified by the 
 clerk, under the seal of the court in which it was proved, was 
 made as effectual in all cases as the original will would be if pro- 
 duced and proved ; and the original will, with a certificate of the 
 clerk of the court, under the seal of the court, of the proof thereof 
 endorsed thereon, was also made evidence without further proof. 
 (1 R. L. of 1813, p. 364.) Neither of the foregoing statutes 
 made it necessary to prove a will, as a will of real estate, in the 
 supreme court, or court of common pleas. It was left entirely 
 optional with the parties interested, and was rarely done, except 
 for the convenience and safety of the devisee. 
 
 By the revised statutes of 1830, the power of proving and re- 
 cording a will of real estate was taken from the supreme court and 
 courts of common pleas and transferred to the surrogates' courts 
 of the proper county. (2 R. S. 56.) The surrogates' courts thus 
 acquired exclusive jurisdiction of this matter, except in the case 
 of wills lost or destroyed, or in the case of wills executed accord- 
 ing to the law of this state, when the witnesses to the same reside 
 out of the state, or in the case of a will where the original is in 
 the possession of a court or tribunal of justice of another country. 
 In those cases the will might be proved in the court of chancery, 
 and may still be proved in the supreme court. (3 R. S. 151, § 79. 
 Id. 153, bth ed.) Matter of Atkinson, 2 Paige, 214. In the mat- 
 ter of Eastern! s will, 6 id. 183. Bulkley v. Redmon, 2 Bradf. 
 281.) These exceptions are of rare occurrence ; and therefore, 
 for most purposes, the surrogate's court has the exclusive original 
 22 
 
170 BEOOEDING WILLS OF EEAL ESTATE. 
 
 jurisdiction in relation to the proving of both wills of real and 
 ■wills of personal estate. 
 
 But the revised statutes contained a provision founded on the 
 presumption in favor of the heirs at law, which makes it necessary 
 for the devisee, as a matter of safety, to record the will under 
 which he derives title. Thus it is enacted (1 R. S. 748, 749, § 3 ; 
 3 id. 38, 6th ed.) that the title of a purchaser in good faith, and 
 for a valuable consideration, from the heirs at law of any person 
 who shall have died seized of real estate, shall not be defeated 
 or impaired by virtue of any devise made by such person of the 
 real estate so purchased, unless the will or codicil containing such 
 devise shall have been duly proved as a will of real estate, and re- 
 corded in the ofSce of the surrogate having jurisdiction, or of the 
 register of the court of chancery, when the jurisdiction shall be- 
 long to that court, within four years after the death of the testa- 
 tor, except 1. Where the devisee shall have been within the age 
 of twenty-one years, or insane, or imprisoned, or a married woman, 
 or out of the state at the time of the death of such testator ; or 
 2. Where it shall appear that the will or codicil containing such 
 devise shall have been concealed by the heirs of such testator, or 
 some or one of them ; in which several cases the limitations contained 
 in this section shall not commence until after the expiration of one 
 year from the time when such disability shall have been removed, 
 or such will or codicil shall have been delivered to the devisee or 
 his representative, or to the proper surrogate. 
 
 Hence, it is obvious that if the devisee takes under the will a 
 more beneficial estate than would descend to him as heir, and more 
 especially if the devisee is not an heir of the testator, he should, 
 in general, have the will proved and recorded as a will of real es- 
 tate, as well to preserve the evidence of his title as to prevent any 
 third person from deriving a right through the heirs at law. 
 
 The revised statutes of 1830 treated an application for the proof 
 of a will of real estate, with a view to its being recorded in the 
 surrogate's court, as a different proceeding from an application for 
 probate of a will bequeathing personal estate. In the former case, 
 the jurisdiction attached where any real estate should be de- 
 vised by will ; and in that case it permitted any executor or devi- 
 see named in the will, and any •person interested in such estate, 
 
PAETIES TO THE PKOOEEDING. 171 
 
 to cause the will to be proved before the surrogate of the county 
 to whom the probate of the will of the testator would belong in re- 
 spect to personal property. (2 R. iS. 57.) But the statute did 
 not say by whom an application should be made for a citation with 
 a view to obtaining probate of a will disposing of personal prop- 
 erty. It left that as it existed before, which we have seen be- 
 longed to the executor named in the will, or to a legatee. ( Walsh 
 V. Ryan, 1 Bradf. 433.) 
 
 Although an executor or deviseCj named in the will, might ap- 
 ply to have it recorded as a will of real estate, it is presumed the 
 executor was not a necessary party unless he took some interest 
 as such under the will. The revised statutes also contemplated 
 that a will proved as a will of real estate, should be recorded in a 
 different book from a will admitted to probate only. The proceed- 
 ings were between different parties, and for different objects. The 
 first process in the one case was a notice ; that in the other a cita- 
 tion. And it might happen, that the next of kin in the one case 
 were a different class of persons from the heirs at law in the other, 
 who were the only adverse parties to the proceeding. 
 
 If the will can be recorded on the application of an executor 
 who takes no interest under the will, he must, for that purpose, 
 be treated as a trustee' for the parties in interest. The law would 
 not permit a collusion between the executor and anybody else to 
 work a prejudice to the real parties in interest. 
 
 It was the policy of the legislature, and one of the objects of the 
 act of 1837, {L. of 1837, p. 524 ; S R. iS. 146, 5tk ed.,) to assimi- 
 late the proceedings to record a will of real estate to the proceed- 
 ings on obtaining probate of a will of personal property alone. 
 {Caw V. Robertson, 1 Seld. 129.) Hence the preliminary steps 
 are the same in both cases. Both are commenced by a citation. 
 If the will relates exclusively to real estate, the surrogate is to 
 ascertain by proper proof, the names and places of residence of the 
 heirs of the testator, or that upon diligent inquiry the same cannot 
 be ascertained. He need not, in this case, inquire as to the widow 
 and next of kin of the testator, as he must when the will relates 
 solely to the personalty. But if the will relates both to real and 
 personal estate, he is then required to ascertain the names and 
 places of residence of the heirs, widow and next of kin of the testa- 
 
172 WINESSES TO BE EXAMINED. 
 
 tor, or that upon diligent inquiry the same cannot be found. In 
 otter respects tlie preliminary proceedings are alike in both cases, 
 and have been sufficiently mentioned in the preceding section. The 
 service of the citation and the proofs of service in both cases are 
 alike. 
 
 On receiving due proof of the service of the citation upon the 
 proper parties, and in the proper manner, the surrogate is required 
 to cause the witnesses to be examined before him, and the proofs 
 and examinations to be reduced to writing. Two at least of the 
 witnesses to the will, if so many are living in this state, and of 
 sound mind, and are not disabled by age, sickness or infirmity from 
 attending, are required to be produced and examined, and the 
 death, absence, insanity, sickness or other infirmity of any of them 
 must be satisfactorily shown to the surrogate, and he must inquire 
 particularly into the facts and circumstances before establishing 
 the will or granting letters testamentary or of administration 
 thereof. 
 
 It is further provided that no written will of real or personal 
 estate, or both, should be deemed proved until the witnesses to the 
 same, residing within this state at the time of such proof, of sound 
 mind and competent to testify, should have been examined pursu- 
 ant to law, as in the act prescribed ; and in all cases the oath of 
 the person who received the will from the testator, if he can be 
 produced, together with the oath of the person presenting the 
 same for probate, stating the circumstances of the execution, the 
 delivery and the possession- thereof, may be required; and before 
 recording any wilLor admitting the same to probate, the surrogate 
 is required to be satisfied of its genuineness and validity. {L. of 
 1837, p. 627, § 17. 3 B. S. 149, § 66, 5th ed.) 
 
 Another evidence that the legislature intended, as far as prac- 
 ticable, to assimilate the proceedings in the two cases is derived 
 from the 19th section of the act, which provides that when any will 
 shall be recorded as a will of real estate, it shall not be necessary 
 to record the same as a will of personal estate. 
 
 It will be more convenient to collect in the next section the testi- 
 mony required or admissible in various other aspects of the case. 
 {See p. 174;) We are now considering the usual and most fre- 
 
EFFECT OF THE EEOOED, 173 
 
 quent caSes, where all the suhscribing witnesses appear before the 
 surrogate. 
 
 If it shall appear upon the proof taken that the will was duly 
 executed, that the testator at the time of executing it was in all 
 respects competent to devise real estate, and not under restraint, 
 the said will and the proofs and examination so taken are required 
 to be recorded in a book to be provided by the surrogate, and the 
 record thereof to be signed and certified by him. (2 R. S. 58, § 14.) 
 
 The surrogate is then required to endorse a certificate of such 
 proof on the original will, to sign the same and attest it with his 
 seal of oflSce. The will may then be read in evidence without fur- 
 ther proof. The record of the will, made as aforesaid, and the ex- 
 emplification of such record by the surrogate in whose custody the 
 same may be, is required to be received in evidence, and to be as 
 effectual in all cases as the original will would be if produced and 
 proved, and may in like manner be repelled by contrary proof. 
 {Id. § 15.) 
 
 Before recording the will and the proofs, an order or decree should 
 be entered in the minutes reciting the proceedings and the proofs 
 briefly, and declaring the valid execution of the will, and directing 
 it, together with the proofs and examinations, to be recorded in the 
 book provided for that purpose. If the surrogate decides against 
 the validity of the will, his decision should in like manner be en- 
 tered in the minutes. 
 
 There is, however, one case where a will of real estate may be 
 proved before the surrogate, and yet not be recorded by him. 
 That is in a case where it shall appear to the satisfaction of the 
 surrogate' that all the subscribing witnesses to the will are dead, in- 
 sane, or reside out of the state. In such a case the surrogate is 
 required to take and receive such proof of the handwriting of the 
 testator, and of either or all of the subscribing witnesses to the 
 will, and of such other facts and circumstances as would be proper 
 to prove the will on a trial at law. (§ 16.) These proofs are to 
 be signed, certified, and recorded by the surrogate, as before pro- 
 vided, and the will is to be deposited with him. (§ 17.) 
 
 The statute further provides that the record of the proofs and 
 examinations taken in pursuance of the two last sections, and the 
 exemplification of such record by the surrogate in whose custody 
 
174 EVIDENCE m TESTAMENTARY OASES. 
 
 it may be, shall be received in evidence upon any trial or contro- 
 versy concerning the same -will, after it shall have been proved 
 on such trial or controversy, that the lands in question therein 
 have been uninterruptedly held under such will for the space of 
 twenty years before the commencement of the suit in which such 
 trial or controversy shall be had ; and shall be of the same force 
 and effect, as if taken in open court, upon such trial, or in such 
 controversy. {Id. § 18.) 
 
 The proceedings, under this branch of the statute, are a conven- 
 ient mode of perpetuating the testimony relative to the due publi- 
 cation of a will of real estate. They do not, it would seem, operate 
 as notice to a purchaser from the heirs of the person dying seized, 
 because the will is not, and cannot be recorded. The holding of 
 the premises under the will is of itself notice. The will, in this 
 case, cannot be exemplified, nor can a copy be received in 
 evidence, without accounting for the non-production of the original. 
 
 The foregoing provision relates only to wills of real estate. 
 There is a corresponding enactment in the act of 1837, p. 528, 
 §§ 20 and 21, in relation to wills of personal estate, and in which 
 if the surrogate is satisfied with the proof, he may grant probate 
 of the will, and record it as a will of personal estate only, and so 
 as to affect only the personal estate of the testator. In this case, 
 the surrogate is to enter in his minutes the decision which he may 
 make concerning the sufiSciency of the proof or validity of any will 
 which may be offered for probate; and in case he shall decide 
 against the sufficiency of the proof, or the validity of any such will, 
 he is required, without charge, to state the ground upon which 
 the decision is made, if required by either party. The object of 
 this is to facilitate the re-examination of his decree in case of an 
 appeal by either party. (For forms see Appendix, 5 et seq.) 
 
 Section III. 
 
 Of evidence in testamentary cases. 
 
 The New York code of procedure, which has abrogated the rule 
 with respect to the exclusion of witnesses on the ground of inter- 
 est, and has allowed in certain cases, the parties to be examined 
 as witnesses, does not extend to surrogates' courts. The questions 
 
EVIDENCE IN TESTAMENTAEY CASES. 175 
 
 concerning thecompetency of witnesses, and the various other mat- 
 ters in relation to testimony, must be decided in surrogates' 
 courts, by the law as it stood before the adoption of the code, except 
 where the practice in this respect has been modified by subsequent 
 legislation. ( Wilcox v. Smith, 26 Barb. 316.) 
 
 In general it may be stated, that the same rules of evidence pre- 
 vail in surrogates' courts, as governed, before the code, the courts of 
 record in the state, in analogous cases. Some practices which in 
 England formerly prevailed, and which, perhaps, now prevail in 
 the ecclesiastical courts, that full proof required the testimony of 
 at least two witnesses, and that the children of a legatee are 
 incompetent witnesses to support the will, {Twaites v. Smith, 
 1 p. Wms. 10,) are not, and perhaps never were, law in this 
 state. 
 
 The nature of the proof in testamentary cases, and the number 
 of witnesses to wills, are regulated by statute. The provisions of 
 the law for proving wills where all the subscribing witnesses are 
 dead, by permitting the surrogate to take such proof of the hand- 
 writing of the testator and of either or all of the attesting wit- 
 nesses to the will, and of such other facts and circumstances as 
 would be proper to prove the will on a trial at law, contain a clear 
 intimation, that the rules of evidence in courts of law are to gov- 
 ern surrogates' courts as well as courts of record. 
 
 The revised statutes assume that the rule as to competency and 
 credit of a witness is the same in all our courts. Hence it is 
 provided, that if there be a beneficial devise, legacy, interest or ap- 
 pointment of any real or personal estate to a person who is a subscrib- 
 ing witness to the execution of the will, andthe will cannot be proved 
 without the testimony of such witness, the said devise, legacy, 
 interest or appointment shall be. void so far only as concerns 
 such witness, or any claiming under him ; and such person is 
 made a competent witness, and compellable to tes'tify respecting 
 the execution of the said will, in like manner as if no such devise 
 or bequest had been made. (2 R. S. 65, § 50.) But the subse- 
 quent section saves to the witness such share of the testator's 
 estate as he would have been entitled to in case the will was not 
 established, not exceeding the value of the devise or bequest made 
 to him iu the will, and allows him to recover it of the devisees or 
 
176 EVIDENCE IN TESTAMENTAET OASES. 
 
 legatees named in the -will, in proportion to and out of the parts 
 devised and bequeathed to them. 
 
 Under this statute it has been decided by the court of appeals, 
 that -where there are three subscribing witnesses to the execution 
 of a will, to each of whom a legacy or beneficial interest is given, 
 and the will is satisfactorily proved before the surrogate by the 
 oaths of two of the witnesses, (the probate not being contested, 
 and the third witness not sworn,) such third witness, after the time 
 for appealing from the surrogate's decree establishing the will hav- 
 ing expired, is entitled to the legacy given him by the will. {Caw 
 V. Robertson, 1 Seld. 125, reversing S. C. 3 Barb. S. C. R. 401.) 
 
 A party wishing to object to the competency of a witness before 
 the surrogate, must make the objection in due time, or he will not 
 be permitted to raise it in the appellate court. (McDonough v. 
 Loughlin, 20 Barb. 238.) 
 
 The question has sometimes been agitated, whether a party 
 named in a will as executor can also be a subscribing witness to 
 the will, and be competent to prove it before the surrogate without 
 renouncing the appointment. After renouncing, though he still 
 has the right to retract, he is held to be competent. {Burrett \. 
 Silliman, 3 Kernan, 93, reversing S. C. 16 Barb. 199.) The 
 bare naked nomination of an executor in the will, unaccompanied 
 by any beneficial bequest or devise, does not, it seems, disqualify 
 the party so nominated from being a subscribing witness, and 
 competent to establish the execution of the instrument before the 
 surrogate, {McDonough v. Loughlin, 20 Barb. 238,) although 
 a contrary opinion was expressed with hesitation by the supreme 
 court, in Burrett v. Silliman, {supra,) which latter case has since 
 been reversed. {Supra.) 
 
 We have seen, in the preceding section, that two, at least, of the 
 subscribing witnesses to the will, if so many .are living in this 
 state, and are not incapacitated from attending, must be produced 
 and examined, and the death or other disability of any of them 
 must be shown to the court, in order to let in secondary evidence. 
 It may, however, happen, as in Caw v. Robertson, that there are 
 more than two subscribing witnesses to the will. In such a case, 
 if the will is contested, and the party having the right to contest 
 the same shall, before probate is made, file with the surrogate a 
 
AGED, SIOK OR FOREIGN WITNESS. 177 
 
 request, in writing, that all the witnesses to such will shall be ex- 
 amined, then all the witnesses to such will, who are living in this 
 state, and of sound mind, and who are not disabled from age, sick- 
 ness or infirmity, from attending, are required to be produced and 
 examined ; and the death, absence, insanity, sickness, or other in- 
 firmity of any of them, shall be satisfactorily shown to the surro- 
 gate taking such proof. {Laws of 1837, p. 626, § 11. 3 R. S. 
 148, § 57, 5th ed.) 
 
 This section contemplates the production of the witness before 
 the surrogate. But it may well happen that an aged, sick or in- 
 firm witness, may be competent to be examined, but unable to at- 
 tend before the surrogate at a distance from bis residence. Pro- 
 vision is made for such a case, where the witness resides in the 
 county of the surrogate, by requiring the surrogate to proceed to 
 the residence of the witness, and there, in the presence of such 
 persons as may choose to attend, proceed to the examination in the 
 same manner, and with the like effect, as though the witness had 
 attended and been examined before the surrogate on the return of 
 the citation. {Id. § 58.) 
 
 This applies only to cases where the witness resides in the same 
 county with the surrogate. It may well happen that one or more 
 of the aged, sick or infirm witnesses, may reside in another county 
 in this state, and their atendance cannot, probably, be procured be- 
 fore the surrogate. In such a case he may adjourn the proceed- 
 ings to some future day, and direct the witness to be examined 
 before the surrogate of the county where the witness resides ; and 
 it is made the duty of that surrogate to take the examination and 
 return it, under the seal of his court, to the surrogate making the 
 .order. The original surrogate is required to act upon this deposi- 
 tion, and the other testimony in the case, and thus determine on 
 the sufficiency of the proof of such will. The statute makes am- 
 ple provision for notice to the parties, and authorizes, in effect, the 
 foreign surrogate to attend at the residence of the infirm witness, 
 if he cannot conveniently be brought before him at his office. {See 
 the sections at large, Laws of 1837, p. 526, §§ 12 to 16. 3 R. S. 
 148, 149, 5th ed.) 
 
 The foregoing provisions relate only to the subscribing witnesses 
 to the will. -But it is obvious that in the case of contest relative 
 23 
 
178 
 
 rOEEIGN WITNESSES. 
 
 ,to tlie validity of a -will, other aged, sick or infirm witnesses may- 
 be wanted by one party or the other, and whose personal attend- 
 ance cannot be procured. To provide for such cases the act of 1841, 
 {p. 105, 3 R. S. 149, 5th ed..) applies the foregoing principles to all 
 witnesses, whom any person interested in the proof of a will shall 
 request to be examined, whether such witnesses be subscribing 
 witnesses to such will or not ; provided the surrogate who has the 
 power to take the proof of such will is satisfied, that the testimony^ 
 of the witness so requested to be examined, is material. A sub- 
 sequent section makes it applicable to all cases of the proof of wills, 
 whether the will be contested or not. 
 
 The application to examine a disabled witness cannot probably 
 be made until the return of the citation. No witness can be ex- 
 amined under the act unless the party requesting such examina- 
 tion shall have previously given notice of the time and place ap- 
 pointed for such examination, for such length of time as is required 
 in cases of trials of issues of fact in the supreme court to all the 
 parties who appeared before the surrogate before whom the pro- 
 ceedings to take the proof of any such will sre pending. {Id. § 65.) 
 The notice should be fourteen days, that being the time prescribed 
 for notices of trial in the supreme court when the act of 1841 was 
 passed. (2 R. S. 410, § 7.) 
 
 The foregoing provisions cover all the cases which will usually 
 arise when the witness sought to be examined resides in this state. 
 But it may happen as well in proceedings to prove a will as in other 
 matters in controversy before a surrogate, that the testimony of a 
 witness in some other state or territory of the United States, or in 
 some foreign place, will be required by one or other of the parties. 
 The former statutes did not afford adequate relief in such case. 
 But by the 77th section of the act of 1837, page 537, this is now pro- 
 vided for by empowering the surrogate to issue a commission to 
 take such testimony in the same manner as by law the same may 
 be done in courts of record. The 'proceedings in such case are 
 pointed out in the revised statutes. (2 R. S. 393 et seq. and in 
 books of practice of the supreme court.) 
 
 Should the subscribing witnesses, instead of sustaining the will, 
 depose to the testator's incapacity, or should they have forgotten 
 their attestation, the will may nevertheless be proved by other tes- 
 
OPINIONS OF WITNESSES. 179 
 
 timony and admitted to probate, and the same principle is applica- 
 ble to the proof of a will of real estate. {Bull. N. P. 264. Rice 
 V. Oatfield. 2 Strange, 1096. Le Breton v. Fletcher, 2 Hagg. 
 658. Jauncy v. Thorn, 2 Barh. Ch. 40. Nelson v. McGiffert, 
 3 id. 158. Dewey v. Dewey, 1 Mete. 349. Peebles v. Case, 
 2 Bradf. 226. Jackson v. Christman, 4 WencZ. 277.) 
 
 There is no court in -which evidence as to testamentary capacity 
 is so frequently agitated as in the courts having original jurisdic- 
 tion for the proof of ■wills and in matters of intestacy. In this 
 state that jurisdiction belongs to the surrogates' courts. It is 
 much to be desired that the rules of evidence in all the courts 
 should be the same, when they relate to the like subject matter. 
 And it is believed that when the cases come to be examined, that 
 there is no substantial diversity among them. 
 
 The general rule of evidence is undeniable, that witnesses must 
 speak to facts within their knowledge, and that mere opinions are 
 not admissible. [Culver v. Haslam, 7 Barb. 321. 1 Greenl. Ev. 
 § 440. 1 Phil. 290.) There are, however, numerous exceptions 
 to the rule, most of which are collected in the authorities referred 
 to. It is the constant practice to receive in evidence the witness' 
 belief of the identy of a person, or that the handwriting in question 
 is or is not that of a particular individual, provided he has any 
 knowledge of the person in the one case, and of the handwriting in 
 the other. On questions of science, skill or trade, or others of the 
 like kind, persons of skill, sometimes called experts, may not only 
 testify to facts, but are permitted also to give their opinions in 
 evidence. 
 
 The important question is not whether there are exceptions to 
 the general rule, but whether the testamentary capacity of a party 
 is the subject of this exception in any possible case. 
 
 In Poole V. Richardson, (3 Mass. 330,) the supreme judicial 
 court held that the subscribing witnesses to a will might testify 
 their opinions of the sanity of the testator, but they denied this 
 privilege to other witnesses who, they said, were permitted to 
 speak only to facts. The distinction between the subscribing 
 witnesses to a will, and other witnesses having the same means.of 
 knowledge, rests upon no sound principle, and cannot be support- 
 
IgO OPINIOIt OF WITNESSES. 
 
 cd. In Needham t. Me, (5 Pick. 510,) the distinction between 
 the two classes of witnesses was stated to be that the subscribing 
 witnesses being with the testator when he signed the will and re- 
 quired to notice the state of his mind, might lawfully give their' 
 opinions, but that the mere opinions of other witnesses were not 
 competent evidence, and were not entitled to any weight, further 
 than they are supported by the facts and circumstances proved on 
 the trial. Surely, if the last witnesses had the same means of knowl- 
 edge as the first, no reason is perceived why they should be pre- 
 cluded, anymore than the subscribing witnesses, from giving their 
 opinion. It is from the intimate knowledge which the subscrib- 
 ing witnesses are supposed to have of the testator, and from the 
 fact that their attention was called to the subject at the time, that 
 their opinions have been held to be competent. Any other witness 
 falling within the same category, is on principle, equally entitled to 
 express his opinion, in connection with the facts disclosed. If 
 there be any difference between them, it is a difference in degree, 
 and not in principle. 
 
 In Cidver v. Haslam, [supra,) the supreme court of this state, 
 after recognizing the general rule, that witnesses must only speak 
 to facts, and that mere opinions are inadmissible except in certain 
 cases, decided that on a question of mental capacity of the grant- 
 or of a deed, the opinion of an intimate acquaintance, not a medical 
 man, as to the condition of the grantor's mind, was competent when 
 connected with facts and circumstances within his knowledge, and 
 disclosed by him in his testimony, as the foundation of his opin- 
 ion. In remarking upon this species of evidence, the judge who 
 delivered the prevailing opinion said, that apart from the diffi- 
 culty of restraining a witness from intermingling his opinions 
 with his testimony, in questions of this kind, there were strong 
 reasons why he should be permitted to do so, when he discloses 
 the facts and circumstances, within his own knowledge, upon which 
 they are founded. Human language is imperfect ; and it is often 
 impossible to describe in an intelligible manner, the operations of 
 the mind of another. We learn its condition only by its manifest' 
 ations, and these are indicated not alone by articulate sounds, but 
 by signs, gestures, conduct, the expression of the countenance, 
 and the whole action of the man. It is, therefore, the necessity 
 
OPINION OF WITNESSES. 181 
 
 of the case, that gives rise to the exception. If the witness could 
 communicate the exact impression of his own mind on the subject, 
 without the opinionj there would be no need of the opinion, and 
 indeed, it would cease to be competent. 
 
 The doctrine of the court in Culver v. Haslam, was approved 
 by the supreme court in the third district. {De Witt v. Barley^ 
 13 Barb. 550.) But this latter case was reversed in the court of 
 appeals. The court thought that the opinions of witnesses, other 
 than those who are specially qualified by scientific knowledge to 
 judge of such matters, are not competent evidence of the sound- 
 ness of mind of a testator or grantor at the time of executing the 
 deed or will. They took a distinction also between the case of a 
 subscribing witness to a will or deed, holding that it formed an 
 exception to the general rule, and admitting that the opinions of 
 such witnesses were admissible. {De Witt v. Barley, 5 Seld. 371.) 
 
 The case of De Witt v. Barley, {supra,) went back to another 
 trial, and again reached the court of appeals, on exceptions to the 
 ruling of the circuit judge. It is satisfactorily shown by the learned 
 judge of the court of appeals^ in the last case, that the former decision 
 in the same case, reported 5 Seld. {supra,) was to be considered au- 
 thoritative only for the doctrine, that upon a trial involving the ques- 
 tion of the mental capacity of a testator or grantor, a non-profession- 
 al witness cannot be asked the broad question whether he considered 
 the party non compos mentis, or, which is the same thing, inca- 
 pable of managing his affairs. In other words, the opinion can- 
 not be called out by questions in such a form as to involve in the 
 answer m,atter of law as well as matter of fact. The court con- 
 sidered that upon an issue in regard to the mental imbecility of a 
 grantor, the opinions of witnesses founded upon personal obser^ 
 vation of his appearance and conduct might be given in evidence. 
 They treated such cases as belonging to that class of exceptions 
 to the general rule, in which opinions are received ex necessitate, 
 for the reason that the minute appearances upon which they de- 
 pend cannot be so perfectly described as to enable a jury to draw 
 a just conclusion from them. Questions of mental imbecility, they 
 thought, belonged to the same class with questions of identity, 
 of handwriting, of intoxication, and some questions of value ; and 
 that in such casesj the witness must state, so far as he is able, 
 
182 OPIKION OF WITNESSES. 
 
 the facts and reasons upon -wliicli his conclusion is founded, that 
 the court and jury may have all practicable means for estimating 
 the accuracy of his opinions. (De Witt v. Barley, 3 Smith, 340 ; 
 17 N. Y. Rep. 340.) The cases on this subject, on both sides of 
 the question, are elaborately reviewed in the opinions of the court 
 to which reference has been made, and need not be repeated. {See 
 in addition 10 How. N. Y. Pr. Rep. 289 : The People v. East- 
 wood, 4 Kern. 662 ; 14 N. Y. Rep. 562.) 
 
 But although the weight of judicial authority in this state is de- 
 cidedly in favor of the competency of opinions as evidence, under 
 the circumstances, and to the extent stated, yet their effect upon 
 the mind of the tribunal to which they are addressed, is far from 
 being controlling. They are viewed in a different light from the 
 testimony of a witness to a fact. In the latter case, when the' 
 witness is unimpeached, the facts sworn to by him uncontradicted, 
 either directly or indirectly, by other witnesses, and there is no 
 intrinsic improbability in the relation given by him, neither a 
 court or jury can, in the exercise of a sound discretion, disregard 
 his testimony. {Newton v. Pope, 1 Cowen, 110. 1 C. 6^ H. 
 Notes, 396.) But it is otherwise with regard to opinions. These 
 do not control either the court or jury, nor is there any danger 
 that either will be misled by them, when the reasons for them are 
 disclosed. The value and force of the opinion depend on the gen- 
 eral intelligence of the witness, the grounds on which it is based, 
 the opportunities he has had for accurate and full observation, 
 and his entire freedom from interest and bias. '{Culver \. Has- 
 lam, supra.) They may sometimes be entitled to great weight, 
 and at others to none at all. In many of the cases, both in the 
 English reports and those of New York, the decision of the court 
 in granting or refusing probate, has been in opposition to the 
 opinions of the witnesses, and upon reasons entirely satisfactory. 
 {See remarks of Sir John Nicholl, in Kinleside y. Harrison, 
 2 Phillm. 449 ; Cartwright v. Cartwright, 1 id. 90 ; Carroll 
 v. Norton, 3 Bradf. 291 ; Stewart's Executor v. Lispenard, 26 
 Wend. 255 ; Clark v. Fisher, 1 Paige, 171.) 
 
 We have already, in a preceding part of this work, discussed 
 various questions of testamentary capacity, and thus anticipated 
 many questions which might appropriately be treated in the pres- 
 
ORDER OF PROOF— COSTS. 183 
 
 ent section. But to avoid repetition, we abstain from a further 
 examination of those cases. 
 
 The surrogate, in those counties where he is not furnished with 
 a clerk or assistant, is his own examiner.. Like the courts of 
 common law jurisdiction, he has the power to direct the order of 
 proof, and the mode of conducting the examination of witnesses. 
 He should exercise his discretion, in this matter, in such a manner 
 as to advance justice, and consult, at the same time, the rights 
 and convenience of the parties and their witnesses. The witness- 
 es must be examined in open court, their testimony reduced to 
 writing, and subscribed by them. It must be recorded in the 
 proper book. When taken by the county judge or district attor- 
 ney, in consequence of the incapacity of the surrogate, it is to be 
 filed in the office of the county clerk. (2 R. iS. 57. 3 id. 167, 
 § 75, 5th ed.) Whether the testimony shall be taken by question 
 and answer, rests, it is believed, in the discretion of the surrogate. 
 
 Under the constitution of 1777, and before the adoption of the 
 constitution of the United States, a provision was made for costs 
 in the court of admiralty, and for the fees of advocates and proc- 
 tors in that court. (2 Greenl. 255.) But there was no fee bill 
 for the court of probates or surrogates' courts, beyond the fees al- 
 lowed to those officers for specified services. {Id. 257.) Although 
 costs were given by the ecclesiastical courts, in England, in cases 
 of contest, both in original suits and on appeal, that practice was 
 not adopted in this state, . {Shultz v. Pulvei; 3 Paige, 185. 
 Reed v. Vanderheyden, 5 Cowen, 719,) and the court of probates 
 expressly decided that it had no power to award costs. The re- 
 vised statutes of 1830, (2 R. iS. 223, § 10,) permitted surrogates' 
 courts, in all cases of contests before them, to award costs to the 
 party in the judgment of the court entitled thereto, to be paid 
 either by the party personally, or out of the estate which should 
 be the subject of controversy. But those statutes did not pre- 
 scribe a tarifi" of fees, and it was sometimes doubtful by what rate 
 charges were to be made. The act of 1837, § 70, p. 536, directs 
 these costs to be taxed at the same rate allowed for similar ser- 
 vices in the courts of common pleas. It has been decided by the 
 surrogate of New York that the fee bill of the common pleas then 
 
184 OF ADMINISTEATIOIT. 
 
 in force, is the one by which these costs are still to be taxed, not- 
 withstanding the court of common pleas has since been abolished, 
 ( Western v. Romaine, 1 Bradf. 37.) (For form of the testimony 
 of witnesses, see Appendix, No. 13 and 14.) 
 
 CHAPTER VII. 
 
 OF ADMINISTRATION, AND THE APPOINTMENT OF 
 ADMINISTRATORS. 
 
 In the former part of this work we have treated of wills, their 
 origin, nature and incidents ; of the appointment of executors, of the 
 probate of wills and testaments, and of various matters connected 
 with this department of jurisprudence. We come now to another 
 branch of the exclusive original jurisdiction of surrogates' courts, 
 namely, its jurisdiction over the estates of deceased persons when 
 there is no executor at all, or none capable of acting. A person 
 who makes no testamentary disposition of his personal property is 
 said to die intestate. This state of things occasions what is usually 
 denominated a general intestacy. • It sometimes happens, however, 
 that the deceased, though he makes a will, appoints no executor, or 
 else the appointment whojly or partially fails ; in either of which 
 events he is said to die, quasi intestatus. (2 Inst. 397.) We shall 
 treat of the consequences which follow either of these events. 
 
 We do not deem it necessary to give a historical sketch of the 
 origin of administrations in England. The subject, however inter- 
 esting and instructive, is not indispensable to a correct under- 
 standing of the law of this state. It will be found sufficiently at 
 large in the elementary works most familiar to the profession. 
 (2 Bl. Com. 494. 1 Wms. Ex'rs, 329.) With us, the jurisdic- 
 tion of surrogates' courts, in cases of intestacy, and the general 
 practice in the appointment of administrators, both general and 
 special, are essentially regulated by the revised statutes, and the 
 subsequent amendments. But it will aid us in the construction of 
 these statutes to take a brief survey of the whole subject of admin- 
 istration as it existed when those statutes took effect. 
 
 At common law the subject of administration was divided into 
 
OF ADMINISTRATION. 185 
 
 general, special, limited and temporary administrations. First. A 
 general administration was where the power of collecting and final 
 disposing of the goods, chattels and credits of the intestate was 
 committed to a person, without any exception or reservation ; and 
 without restriction as to the power, or limitation as to the time of 
 continuance of the authority. It is this kind of administration that 
 is usually intended when the subject is mentioned injudicial pro- 
 ceedings or legislative enactments. Secondly. A special admin- 
 istration was of two kinds. (1.) Administration cum, testamento 
 anjiexo, which usually happened in one of three ways ; (1,) where 
 the person appointed executor renounced; (2,) where he died be- 
 fore the testator, or from any cause was incapable of acting ; and 
 (3,) where the sole executor died after he had commenced, but be- 
 fore he had completed the administration of the will. 
 
 The second species of special administration was termed an ad- 
 ministration de bonis non. This happened where an administrator, 
 having partly performed his administration, died leaving it unfin- 
 ished ; or when an executor died after commencing, and before 
 completing, the execution of the will. In both these cases, admin- 
 istration of the goods, chattels and credits of the first testator, or 
 intestate, left unadministered, was committed to a party entitled ; 
 and in the latter case it was called an administration cwm testa- 
 menio annexo, de bonis non, Sj'C. In both cases, the administra- 
 tion was unlimited in duration ; and the power granted was co- 
 extensive with the assets left unadministered. Indeed, both a 
 general and special administration terminated only with the life of 
 the grantee, and extended to the whole estate of the deceased. 
 
 Third. Limited administrations were of two kinds, (1.) such as 
 were confined to a particular extent of time ; and (2,) such as were 
 confined to particular subject rnatter. The first class embraced 
 an administration durante minore cetate. This occurred (1st,) 
 either where an infant was sole executor named in a will, or 
 (2d,) where he was the next of kin entitled to administration on an 
 intestate's estate. In both cases, at common law, administration 
 was committed to his guardian, or to some suitable person, till the 
 infant became of age. In the first case it was a species of adminis- 
 tration cum, testam,ento annexo. Second, an administration pen- 
 dente lite was granted in case of a controversy in the spiritual court 
 
 24 
 
186 OF ADMIKISTRATION. 
 
 concerning the right of administration to an intestate. Third. An 
 administration durante absentia, and was granted where the execu- 
 tor named in the will, or at common law, where the next of kin was 
 out of the kingdom. 
 
 The second class of limited administrations, to wit, such as were 
 confined to a particular subject matter, embraced (1st.) an admin- 
 istration cceterorum, which occurred where Zifeme covert, under 
 a power, made a will, bequeathing fart of her property. In this 
 case a limited probate was granted to her executor, restraining his 
 authority to the subject embraced in the power, and an administra- 
 tion of the other goods &c. of the wife was granted to the husband. 
 (2d.) This species of administration arose, also, where for any reason 
 the court deemed it for the interest of the parties concerned to 
 limit the authority to a part of the effects. 
 
 Fourth. There were a variety of other temporary or limited ad- 
 ministrations arising from the limitation of the appointment by the 
 testator in his will, or from the happening of circumstances, not 
 embraced in either of the preceding heads. Thus, an executor 
 might be appointed by a testator, with a limitation as to his con- 
 tinuance in office, and a restriction as to his power over the estate. 
 The case In the goods of Metcalf, (1 Add. 343,) is a fit illustration 
 under this head. In that case the testator died in England stating 
 a short time before he died, that he left a will in India. A tem- 
 porary administration was granted till the will could be produced. 
 Here, a general administration could not have been granted, be- 
 cause it could not be sworn that he died intestate, and the circum- 
 stances did not bring it within either of the other subdivisions. 
 
 Fifth. In addition to the above the ecclesiastical court of Eng- 
 land had the power of granting letters ad colligendum, or to ap- 
 point a collector in certain cases. {In the goods of Randall, 
 2 Add. 232.) This might be granted to a stranger ; and it con 
 ferred on him the authority merely of collecting the personal prop- 
 erty of the deceased, giving discharges for debts due the intestate 
 or testator, on receiving payment, and doing what might be neces- 
 sary for the preservation of the property. He had no power to bring 
 suits. And his power in other respects was extremely limited. 
 
 Such is a brief epitome of the law on this subject, anterior to 
 the revised statutes, as it was supposed to exist in England and in 
 
POWER OF SURROGATE. 187 
 
 this state. The common law was the law here except as modified 
 by legislation. A general knowledge of it is essential to a full 
 compi'ehension of the changes which have been subsequently 
 made. The common law is still the rule where no other law has 
 intervened to change it. We are now in circumstances to consider 
 the existing state of the law on this subject. 
 
 Section I. 
 
 To the surrogate of which county must application he made for 
 letters of administration, and what m,ay he done by the admin- 
 istrator before the grant. 
 
 We have already defined the general jurisdiction of surrogates' 
 courts, (see are^e, part 1, § 3,) and inserted the section of the 
 statute by which it is conferred. Among his powers, it will be 
 seen, is that of granting letters of administration. But this 
 does not direct the inquirer to the particular surrogate before 
 whom, in a given case, the application should be made. This is 
 pointed out by another statute, which declares that the surrogate 
 of each county shall have sole and exclusive power, within his 
 county, to grant letters of administration of the goods, chattels and 
 Credits, of persons dying intestate, in the following cases : 
 
 1. Where an intestate, at or immediately previous to his 
 death, was an inhabitant of the county of such surrogate, in what- 
 ever place such death may have happened. 
 
 2. Where an intestate, not being an inhabitant of this state, 
 shall die in the county of such surrogate, leaving assets therein. 
 
 3. Where an intestate, not being an inhabitant of this state, 
 shall die out of the state, leaving assets in the county of such sur- 
 rogate, and in no other county. 
 
 4. Where an intestate, not being an inhabitant of this state, 
 s halldie out of the state, not leaving assets therein, but assets of 
 such intestate shall thereafter come into the county of such sur- 
 rogate. (2 R. S. 73, § 23. 3 id. 158, § 23, bth ed.) 
 
 Should a non-inhabitant die out of the state, leaving assets in 
 several counties, or assets of such non-inhabitant should, after his 
 death, come into several counties, the surrogate of either county 
 has jurisdiction to grant letters of administration in such a case ; 
 
188 PERSONS TO BE APPOINTED. 
 
 but the surrogate who first grants the letters acquires thereby the 
 sole and exclusive jurisdiction over such estate, and is vested with 
 all the powers incidental thereto. (2 R. S. 73, § 24. 3 id. 158, 
 bth ed.) 
 
 The foregoing statutory regulations apply only to cases of intes- 
 tacy, and have in view the granting of general administration. 
 They embrace nearly all the cases which ordinarily occur. There are 
 some, however, which are not covered by them ; but as the stat- 
 utes, since 1837, do not contain any prohibition to exercise juris- 
 diction in cases not provided for, it is presumed that the common 
 law remains with respect to such cases. The statute regulates 
 the jurisdiction, as far as it goes, in the particular instances spe- 
 cified. {Kohler v. Knapp, 1 Bradf. 241.) 
 
 Though, in general, a person entitled to letters of administra- 
 tion, can do no act to bind the estate before they are granted, yet 
 it was held in Priest v. Watkins, (2 Hill, 225,) that where a note 
 belonging to the estate of an intestate was paid to his widow, who 
 subsequently united with another in taking out letters of adminis- 
 tration, and they then brought an action upon the note in their 
 representative capacity, that the letters related back to the time 
 of the intestate's death, and thus legalized the payment to the 
 widow. {Rattoon v. Overacker, 8 Johns. 126, (S. P.) 
 
 Section IL 
 
 Of the persons to whom general administration is to be grant- 
 ed in cases of total intestacy, and herein of those who are inca- 
 pacitated to hecom,e such administrators. 
 
 It is stated in the English books of authority, that the jurisdic- 
 tion of the ecclesiastical courts in regard to general administra- 
 tion in the case of a total intestacy, is regulated by the statutes,^ 
 31 Edward 3, ch. 11, and 25 Henry 8, ch. 5, § 3. By the former 
 of these statutes, the ordinary was directed " to depute the next 
 and most lawful friends of the deceased person, intestate, to ad- 
 minister his goods," and by the latter, " to grant administration to 
 the widow of the deceased, or to the next of kin, or to both, as by 
 the discretion of the same ordinary should be thought good." The 
 
PEKS0N8 TO BE APPOINTED. 189 
 
 same statute gives him power, in case several of the same degree 
 of kindred apply for letters, to select either at his discretion. 
 (1 Wms. Ex'rs, 336. Toller, 83. 2 Kent, 409. And see ante, 
 Part 1.) The statutes above referred to have doubtless been the 
 basis of the legislation on the subject in this country, and certain 
 civil tribunals have been substituted for the ecclesiastical courts. 
 In this state, the act of Henry 8 was substantially copied in the 
 laws of this state, in force at the time of the revision of 1830. 
 {iSee 1 R. L. o/1813, p. 445, § 5.) 
 
 But by the revised statutes it is now enacted that administra- 
 tion, in case of intestacy, shall be granted to the relatives of the 
 deceased, who would be entitled to succeed to his personal estate, 
 if they or any of them will accept the same, in the following order : 
 First, to the widow ; second, to the children ; third, to the father ; 
 fourth, to the brothers ; fifth, to the sisters ; sixth, to the grand- 
 children ; seventh, to any other of the next of kin who would be 
 entitled to share in the distribution of the estate. If any of the 
 persons so entitled be minors, administration shall be granted to 
 their guardians ; if none of the said relatives or guardians will ac- 
 cept the same, then to the creditors of the deceased ; and the 
 creditor first applying, if otherwise competent, shall be entitled to 
 a preference ; if no creditor apply, then to any other person or 
 persons legally competent ; but, in the city of New York, the pub- 
 lic administrator shall have preference after the next of kin, over 
 creditors and all other persons ; and in the other counties of the 
 state, the county treasurer shall have preference next after credi- 
 tors, over all other persons. And in case of a married woman, dying 
 intestate, her husband shall be entitled to administration in pref- 
 erence to any other person, as hereinafter provided. (2 R. iS. 
 74, § 27.) 
 
 Neither of the English statutes referred to mention the hus- 
 band by name as a person to whom letters of administration 
 should be granted on the death of his wife intestate. He was, 
 nevertheless, entitled, not indeed under those statutes, but by his 
 marital right at the common law. By the marriage, the husband 
 acquires an absolute title to all the personal property of the wife, 
 which she had in possession at the time of the marriage. This 
 property is, at common law, transferred to him by legal operation. 
 
190 PERSONS TO BE APPOINTED. 
 
 It belongs to him absolutely, without any liability on his part to 
 account for it to her next of kin, if he survives her, or to the 
 creditors of the wife, whose claims have not been enforced during 
 the continuance of the marriage. He acquires also, by the mar- 
 riage, a title to all the choses in action of the wife, which also be- 
 come his if reduced to possession, or disposed of by him. But if 
 he dies before reducing them to possession or disposing of them, they 
 will go to the wife if she be living, and if she be dead, they will 
 go to her representatives. {Reeve's Dom. Rel. Ito A. 2 Kent's 
 Com. 145.) This doctrine, in some cases, worked great hardship to 
 the creditors of the wife whose debts were not enforced during 
 her lifetime, against the husband. In such a case, however great 
 the fortune received by the husband on account of the marriage, 
 he ceased, at her death, from being liable for her debts. (Id.) 
 
 The New York statute, it has been seen, expressly gives the 
 preference to the husband over any other person claiming a right 
 to administer on the estate of his deceased wife. It requires him 
 to give bonds, like other persons, and makes him liable as admin- 
 istrator, for the debts of his wife, only to the extent of the assets 
 received. If he omits to administer he is presumed to have 
 assets in his hands sufficient to satisfy her debts, and is made 
 liable therefor. If he dies, leaving aasets of his wife unadminis- 
 tered, those assets pass to his executors or administrators, as part 
 of his personal estate, but are made liable for her debts to her 
 creditors, in preference to the creditors of the husband. Should 
 it happen that letters of administration on the estate of the de- 
 ceased wife be granted to any other person than her husband, by 
 reason of his neglect, refusal or incompetency to take the same, 
 such administrator is required to acccount for and pay over the 
 assets remaining in his hands, after the payment of debts, to the 
 husband or his personal representatives. (2 R. S. 75, §§ 29, 30. 
 Shumway v. Cooper, 16 Barb. 556. McCosker v. Golden, 
 1 Bradf. 64, 67. Lockwood v. Stockholm, 11 Paige, 92. Ren- 
 wick V. Renwick, 10 id. 419, 420.) 
 
 Nor is this right of the husband affected by the acts of 1848 
 and 1849, for the more effectual protection of the property of 
 married women. {L. of 1848, p. 200. Id. of 1849, p. 528. 
 3 R. S. 240, 5th ed.) The act of 1849 authorizes a married 
 
EIGHT OF HUSBAND TO ADMINISTER. 191 
 
 female to take, hold, convey and devise certain real or personal 
 property in the same manner and witli the like effect as if she were 
 unmarried. Both the statutes are silent as to the consequences of 
 her death, without having made any disposition of the property. It 
 follows that the marital rights of the husband, in such cases, are not 
 abridged, but remain as before the statutes in question were passed. 
 {McCosker v. Goldeti, supra. Shnmway v. Cooper, supra.) If, 
 therefore, the wife dies intestate, the husband is entitled to letters 
 of administration of her estate, in the same manner as before the 
 enactment of those laws. 
 
 At common law, though a marriage be voidable, by reason of 
 some canonical disability, yet the husband was entitled to the 
 administration of the wife's effects, unless sentence of nullity 
 was declared" before his death. {Elliott v. Gurr, 2 Phill. 16.) 
 But where the marriage was absolutely void, ah initio, the husband 
 was not entitled to take administration ; but it belonged to the next 
 of kin of the wife. {Browning v. Reane, 2 Phill. 69.) The con- 
 sequences which result from a divorce for adultery, are regulated in 
 this state by statute. (2 R. S. 146, § 46.) If the wife be the com- 
 plainant and the decree dissolving the marriage be pronounced 
 against the husband, he being the guilty party, all her estate, real 
 and personal, is reserved to her as her sole and absolute prop- 
 erty. This embraces not only the real estate which she owned 
 in her own right, but such goods, or things in action, which were 
 left with her by her husband, acquired by her own industry, giv- 
 en to her by devise or otherwise, or to which she might be entitled 
 by the decease of any relative intestate. The husband's life inter- 
 est as tenant by the curtesy initiate is thus discharged, and it 
 would seem by necessary inference that his right to administer on 
 her estate, should she die after such divorce. {Renwick v. Ren. 
 wick, 10 Paige, 420.) By the terms of the statute, she is enti- 
 tled to marry again, and consequently, the second or subsequent 
 husband is entitled to administer, on her estate, if he survives her. 
 
 The husband's right to administer on the estate of his wife, may 
 be barred by his agreement, empowering her to make a general 
 will, disposing of her whole estate, provided she exercises the right 
 conferred on her by the power. {Rex v. Bettesworth, 2 Strange, 
 
192 "WHEN" WIDOW PREFERRED. 
 
 1111.) If, however, she is authorized only to dispose of part by 
 will, a limited probate is granted to her executor, and a cceierorum 
 administration to the husband of the residue. 
 
 Where the husband and wife were drowned by the same acci- 
 dent, the prerogative court held that the presumption was that both 
 died at the same time. There being nothing to show that the hus- 
 band survived the wife, administration was granted of her estate 
 to her next of kin, instead of the next of kin of the husband. 
 {Satterthwaite v. Powell, 1 Curteis, 705.) 
 
 In case of the death of the husband intestate, we have seen that 
 by our statute, the widow, if not in other respects disqualified, is 
 entitled to the preference in respect to the granting of administra- 
 tion on his estate. In general this claim will not often give rise 
 to any dispute as to her title to the grant. The term widow im- 
 plies that she has once been the lawful wife of the husband whose 
 estate she claims to administer. Her application may be opposed 
 by other parties having an interest, or by the public administrator, 
 on the ground that she had never been the wife of the deceased. 
 
 As to what shall be sufficient proof of a marriage in such a case, 
 it has been held by the surrogate of New York, that where the 
 claimant and the intestate had lived together as man and wife for 
 four years, and had had three children ; where there was open pro- 
 fession of the marital relation, general reputation, and reception 
 amongst their associates, intimates and relatives, as husband and 
 wife, that notwithstanding there had been no ceremonial marriage, 
 those facts raised a presumption of a marriage in fact. ( Grotgen 
 V. Grotgen, 3 Bradf. 373.) 
 
 In that case the surrogate observed that if the parties choose to 
 marry by private agreement without the interposition of a magis- 
 trate or christian minister, the law does not forbid it. The absence 
 of a ceremony does not invalidate the contract. Its existence may 
 be established by the kind of proof applicable to all contracts. 
 
 In the celebrated case of Cu7iningham v. Burdell, (4 Bradf. 
 343,) the whole doctrine on this subject was most thoroughly ex- 
 amined by the learned surrogate of New York. In that case the 
 claimant pretending to be the widow of Dr. Harvey Burdell, who 
 was murdered in the house occupied by her as his tenant, applied 
 
EFFECT OF DIVORCE. 193 
 
 for letters of administration on his estate. This was opposed by the 
 next of kin of the deceased, on the ground that no marriage had in 
 fact been celebrated between the parties, and that no fact in rela- 
 tion to their intercourse had been disclosed from which a marriage 
 could be presumed. The surrogate conceded that by the law of 
 this state marriage is treated as a civil contract, not requiring 
 legal forms, religious solemnities, or any special mode of proof. 
 But he thought that where, as in that case, the pretended marriage 
 contract was concealed by both the parties, where there had been 
 no cohabitation, acknowledgment, or mark of the relationship, but 
 the parties had lived as single persons, and the pretended con- 
 tract was first announced after the alleged husband's death, that 
 the presumption, instead of being in favor of marriage, was against 
 it, and he accordingly denied the grant of administration to the 
 claimant as widow, but awarded it to the next of kin. {See also 
 Tummalty v. Tummalty, 3 Bradf. 369.) 
 
 With regard to the effect which a divorce, or separation a men- 
 sa et thoro, under the New York statute relative to divorces, has 
 upon the rights of the widow to administration of the estate of her 
 deceased husband, it is believed that it depends upon the cause of 
 the divorce or separation, and who was the guilty party. On the 
 divorce of the wife for adultery committed by her, she forfeits her 
 right to dower in the real estate of her husband, and to a distribu- 
 tive share of his personalty; (2 R. S. 146, § 48.) As the right 
 to administration follows the right of property, according to our 
 statute, it follows that she forfeits also the right of administration 
 upon the estate of the divorced husband, should she survive him. 
 But if the divorce be for the adultery of the husband, or the sep- 
 aration a mensa et thoro be for the misconduct of the husband, the 
 wife being the innocent and he the guilty party, a different con- 
 sequence follows. It is contrary to the analogy of the law in other 
 cases, to permit the crime of one party to work a forfeiture of the 
 rights of another. The statute does not annul the marriage ab 
 initio, in either case, nor does it permit the guilty party to marry 
 again during the lifetime of the complainant. The divorce is 
 prospective in its operation, and has no other effect on the mar- 
 riage relation than such as is declared by the statute. Hence it 
 follows, that on such divorce or separation, decreed by the court on 
 25 
 
194 EFPEOT Oi" DIVORCE. 
 
 the application of tlie wife, for the misconduct of the husband, she 
 is entitled, in case he subsequently dies intestate, and she survives 
 him, to dower in his real estate, and to a distributive share of his 
 personalty, and consequently to letters of administration on his 
 estate. {Wait v. Wait, 4:' Comst. 95, overruling same case in 
 4 Barb. 192, and the dictum of V. C. McCoun, in Day v. 
 West, 2 Edw. 596 ; and to the same effect see Burr v. Burr, 10 
 Paige, 25, 6, per Willard, V. C. ; opinion of the Chancellor, id. 31 
 to 39, affirming decree of V. C; S. C. 7 Hill, 207, affirming 
 both decrees by court of errors.) By parity of reasoning, should 
 the divorce be granted to the husband for the misconduct of the 
 wife, the marital rights of the husband, in case of his surviving 
 his wife, would be unaffected by the decree, and he would be enti- 
 tled to administration on her estate. 
 
 But, it is believed, a different rule would prevail should the 
 marriage be annulled under the second article of Title 1, Part 2, 
 chapter 8. (2 R. S. 142. 3 id. 233, 5th ed.) The ground on 
 which such decree is based, is for some defect that renders the con- 
 tract void from the beginning. After a sentence of nullity, decreed 
 by the proper court, neither party could claim to administer on 
 the estate of the other, as a surviving husband or wife. This is 
 according to the English doctrine in the cases which have been 
 cited, {supra,) and it is founded in wisdom and justice. 
 
 Having thus briefly considered the case of the husband and of 
 the widow, it remains, in the next place, that we should inquire 
 into the rights of the n&xt of kin. The statute clearly contem- 
 plates that the next of kin, who are entitled to claim the grant of 
 administration, must be those relatives of the deceased who would 
 he entitled to succeed to his personal estate. Those persons are 
 described in the statute of distributions-. (2 R. S. 96, § 75. 
 3 id. 183, § 82, bth ed.) 
 
 When called upon to ascertain who are the heirs of the de- 
 ceased, with a view to cite them to attend the ptoof of his will of 
 real estate, in order that it may be recorded, we look to the statute 
 of descents to ascertain the persons the law denominates heirs. 
 1 R. S. 750. 3 id. 40, bth ed.) It is those persons alone who have an 
 interest in defeating the will, if it makes a different disposition of 
 the estate than the law would give to them in cases of intestacy-. 
 
NEXT OF KIN. 195 
 
 In analogy to this principle, on an application for administra- 
 tion by the next of kin, under our statute, we are to look for the 
 persons who sustain that relation, at the time of the testator's 
 death, as well as those who would be entitled to a distributive 
 share of the estate. Both circumstances should concur in or- 
 der to give the right to administration. {Savage v. Blythe, 2 
 Hagg. App. 150. Almes v. Almes, id. 155, 156; The Public 
 Administrator v. Peters, 1 Bradf. 102.) Hence, a party who 
 has become entitled to a distributive share of the estate by reason 
 of the death of another who was a next of kin to the intestate at 
 the time of his death, is not entitled as against the next of kin, 
 who has an interest. 
 
 Consanguinity is defined to be the connection or relation of per- 
 sons descended from a common ancestor. It is either lineal or 
 collateral. 
 
 Lineal consanguinity is that which subsists between persons of 
 whom one is descended in a direct line from another, as between 
 the father, grandfather, great grandfather, and so upwards, in the 
 direct ascending line ; or between the father and his son, grandson, 
 great grandson, and so downwards, in the direct descending line. 
 Every generation in this lineal direct consanguinity, constitutes 
 a different degree, reckoning either upwards or downwards. 
 
 Collateral kindred answer to the same description. Collateral 
 relations agreeing with the lineal in this ; that they descend from 
 the same stock, or ancestor ; but, differing in this, that they do 
 not descend one from the other. Collateral kinsmen are such then, 
 as lineally spring from one and the same ancestor, who is the 
 stirps or root, the stipes, trunk or common stock from whom these 
 relations are branched out. (2 Bl. Com. 203, 204. 1 Wms. 
 Ex'rs, 344. Sweezey v. Willis, 1 Bradf. 498.) 
 
 The mode of calculating the degrees in the collateral line, for the 
 purpose of ascertaining who are the next of kin, so as to be entitled 
 to administration at common law, conforms, it has been said, to 
 that of the civil law, and is as follows ; to count upwards from 
 either of the parties related to the common stock, and then down- 
 wards again to the other, reckoning a degree for each person, both 
 ascending and descending ; or in other words, to take the sum of 
 
196 NEXT OF KIN. 
 
 the degrees in both lines to the common ancestor. (2 Bl. Com. 
 
 20T.) 
 
 According to the common law, the mode of computation is to 
 begin at the common ancestor and reckon downwards, and in what- 
 ever degree the two persons, or the more remote of them, is distant 
 from the common ancestor, that is the degree in which they are 
 related to each other. It is obvious that the degrees by this cal- 
 culation are fewer than by the mode of the civilians. {Id.) 
 
 The spiritual courts adopted the rule of the civilians in reckon- 
 ing propinquity of degrees, and in so doing place grandfathers a 
 degree nearer the intestate than uncles and aunts, {Sweezey v. 
 Willis, 1 Bradf. 498, and the cases cited.) Though the statute 
 of distributions has altered, in several particulars, the mode of dis- 
 tribution consequent upon the computation of the civil law, yet 
 wherever it directs distribution to " the next of kin," the rule of 
 the civil law still pre vails. {Sweezey\. Willis, supra. 1 Wms. 
 JEx'rs, 344. Bogert v. Furman, 10 Paige, 496. 2 Kent's 
 Com. 411.) 
 
 It was the policy of the legislature in introducing the change of 
 phraseology in the section prescribing to whom administration 
 should be granted in cases of intestacy, to limit the discretion of 
 the probate court in the selection, and to adopt as far as practica- 
 ble, fixed rules. Hence, certain kindred are mentioned by name, 
 after the widow, instead of the general expression " next of kin," 
 in the former law and in the English statute. Of these, the chil- 
 dren standing nearer to the intestate, both in degree and in affection, 
 are the first objects of regard. If there be no widow, or if she re- 
 nounce, or be disqualified, then the grant of administration is to be 
 made to the children of the intestate. The intestate may have left a 
 numerous family, some males and some females ; some of full age 
 and some infants ; some females married and some single ; some 
 the offspring of one mother, and some of another ; and one or more 
 not an inhabitant of this state. If the statute had prescribed no 
 rule for the selection in such a case, it would have devolved on the 
 court to make the choice if the parties could not agree. But the 
 statute has wisely provided for all these cases. 
 
 Thus where there are several persons of the same degree of kindred 
 
PERSON FORBIDDEN TO BE APPOINTED. 197 
 
 to the intestate entitled to administration, males are to be preferred 
 to females, and unmarried women to such as are married. But 
 where there are several equally entitled, the surrogate is permitted 
 to exercise his discretion, and to grant letters to one or more of such 
 persons. (2 R. iS. 74, 5 28.) 
 
 If any be minors, administration may be granted to their 
 guardian. 
 
 If there be no children of the intestate, the father is entitled be- 
 fore brothers or sisters ; and if there be no father or children, 
 brothers are to be selected before sisters, and in both instances 
 and in all other cases, relatives of the whole blood are to be preferred 
 to those of the half blood. 
 
 In addition to the foregoing limitation upon the discretion of the 
 surrogate, there are certain persons to whom he is forbidden to 
 make the grant. He is not to grant it to a person convicted of an 
 infamous crime, nor to a person incapable by law of making a con- 
 tract, nor to a person not a citizen of the United States, unles he 
 resides within this state, nor to a person under the age of twenty- 
 one years ; nor to a person adjudged by the surrogate to be incom- 
 petent to execute the duties of such trust by reason of drunken- 
 ness, improvidence or want of understanding ; nor to a married 
 woman, but in the latter case it may be granted to her husband in 
 her right. (2 R. S. 75, § 32, as amended in 1830. 3 R. S. 
 159, § 32, 5th ed.) 
 
 But the surrogate has no discretion to exclude a person declared 
 by the statute to be entitled to a preference, except for some cause 
 specified in the statute. No degree of legal or moral guilt or de- 
 linquency is suflScient for this purpose, unless such person has been 
 actually convicted of an infamous crime. It has been held that 
 the conviction here intended is upon an indictment or other crimi- 
 nal proceeding. {Coope v. Lowerre, 1 Barb. Ch. 45.) Nor can 
 he be excluded on the ground of improvidence, unless the evidence 
 tends to show that the party cannot be safely entrusted with the 
 management and preservation of the trust property. {Id.) But 
 the fact that a man is a professional gambler, is presumptive evi- 
 dence of such improvidence as to render him incompetent to dis- 
 charge the duties of executor or administrator, {McMahon v. 
 Harrison, 2 Seld. 443.) 
 
198 DISCEETIOH OF STJEROGATE. 
 
 The different parts of the statute must be so construed as to 
 harmonize with each other. It is quite obvious that a relative of the 
 intestate, who has no interest or title to a distributive share of his 
 estate, can have no claim to letters of administration. The order 
 of preference established by the statute must be understood as 
 applying only to the relatives who would be intitled to succeed to 
 the personal estate of the intestate. [The Public Administra- 
 tor V. Peters, 1 Bradf. 100.) Though the section gives in terms 
 a preference to the father, brothers and sisters before grand- 
 children, yet the preference cannot be allowed when the former 
 have no interest ; and they have none under the statute of distri- 
 butions if there be grandchildren. {Id.) 
 
 The order of preference prescribed by the statute can only be 
 interrupted by some cause mentioned in the statute. Indebtedness 
 to the estate does not render a person incompetent to administer, 
 nor impair his priority of right to administration. {Churchill v. 
 Prescott, 2 Bradf. 304.) 
 
 There are still, under our statutes, some cases where the surro- 
 gate will be called upon to exercise his discretion in selecting 
 between two or more claimants being equally entitled under the 
 statute. The discretion with which he is invested was not given 
 for his benefit, but for the good of others. It should be exercised 
 with a wise and provident regard to the interest of those who 
 have claims upon the estate, either as creditors or parties in dis- 
 tribution. There is no impropriety in consulting the views of the 
 majority m interest and following their wishes. (Budd v. Silver, 
 2 Phill. 115. Warwick v. Greville, 1 id. 123.) Primogeni- 
 ture gives no right, but still, other things being equal, the selection 
 of the eldest brother would in general meet the wishes of the 
 family. 
 
 It is scarcely necessary to add, that a sole administration is 
 generally preferred over a joint administration. It is less expensive 
 to the parties, more convenient for the claimants, whether 
 creditors or distributees, and more expeditious in its movements. 
 {Earl of Warwick v. &reville, sv.pra.) So also, a man of 
 business capacity will be preferred, if he possesses the other 
 requisite qualifications. ( Williams v. Wilkins, 2 Phill. 100.) 
 
CKEDlTOK ADMINISTRATOR. 199 
 
 We have seen that if none of the relatives or guardians ■will 
 accept the trust of administering, then the grant may be made to 
 the creditors of the deceased, and the creditor first applying, if 
 otherwise competent, is entitled to a preference ; if no creditor 
 apply then the grant may be made to any other person or persons 
 legally competent ; but in the city of New- York, the public 
 administrator has preference after next of kin, over creditors and 
 all other persons ; and in the other counties of the state, the county 
 treasurer has preference next after creditors over all other persons. 
 (2 R. S. 74, § 27.) In England, it is said that the court will, on 
 the petition of other creditors, compel the one selected to enter into 
 articles, to pay debts of equal degree in equal proportions, without 
 any preference of his own. ( Toller, 106.) Whether this practice 
 ever obtained in this state or not, there is no longer any reason for 
 it, since the right of an administrator to retain for his own debt, 
 has ceased to exist, and the statute has provided for an equality of 
 distribution of the intestates effects among the creditors of the 
 same class. (2 R. S. 88, § 33. Id. 77, § 27. Treat v. Fortune, 
 2 Bradf. 116.) 
 
 When a creditor administrator has been duly appointed, the 
 next of kin cannot during his lifetime, take the administration 
 from him ; but upon his death they may come in and claim admin- 
 istration de bonis non, provided they apply within a reasonable 
 time. {Skeffington v. White, 1 Hagg. 699.) In England, it is 
 said a creditor cannot before administration, deny an interest or 
 oppose a will ; yet when he has obtained administration he has a 
 right to maintain it against the executor or the next of kin, and it 
 is not to be revoked on mere suggestion. {Elme v. De Costa, 1 
 Phill. 173.) In this state, however, a creditor, as well as any 
 other person interested in the estate, may object to the grant of 
 letters testamentary to an incompetent person, or to one whose 
 circumstances are such as not to afford adequate security to the 
 creditors, legatees and relatives of the deceased. (2 R. S. 69, § 2. 
 Id. 70, § 6. 3 i2. S. 154, 155, bth ed.) And where administration 
 has been granted to a creditor, and a will is afterwards produced, 
 he is entitled to contest it in the same manner that the next of kin 
 might have done, without being subject to costs. (1 Phill. R. 
 155, 166.) 
 
200 DISOKETION OF SURROGATE. 
 
 If none of the relatives or next of kin entitled to share in the 
 distribution of the estate, or the creditors, or the public adminis* 
 trator, will take out letters, the surrogate may grant them to any 
 other person or persons legally competent. In such a case, the ques- 
 tion of interest is not regarded. In a case where the brother and 
 only next of kin renounced, the court granted the administration 
 to the nephew, although he had no interest. [In the goods of 
 Mary Keane, 1 Hagg. 692. 2 id. 82.) Or, it has been said, 
 the ordinary may, ex officio, grant to a stranger letters ad colli- 
 gendum bona defuncti, to gather up the goods of the deceased ; or 
 may himself take the goods of the deceased into his own handsj to 
 pay the debts of the deceased, in such order as an executor or 
 administrator ought to pay them j but he, or the stranger who has 
 letters ad colligendum, cannot sell them without making them- 
 selves executors of their ownwrong; ( Toller, 107. In the goods 
 of Mary Randall, 2 Add. 232.) 
 
 The general power of the surrogate in relation to cases not 
 within the statutes of administration, is, in some respects re- 
 str&.ined in this state^ by legislative provisions. Thus, the law 
 authorizing the appointment in the city of New York, of a public 
 administrator, and that conferring similar [powers on the county 
 treasurer, abridge the jurisdiction of the surrogate in this respect. 
 (2 R. S. 113. Id. 117. 3 id. 205, 215, 5th erf.) They provide 
 for various contingencies, and are wisely framed to protect the 
 property of persons dying intestate within our jurisdiction when 
 they have no relative to claim administration. In the cases pro- 
 vided for by the statutes, intestacy is presumed until a will is 
 produced and letters testamentary issued thereon. The duties of 
 those officers are fully pointed out in the statutes referred to. 
 
 With regard to cases not within the aforesaid statutes, the sur- 
 rogate has the undoubted right, if neither a relative or a creditor 
 applies, to grant letters of administration to any competent per- 
 son, at his discretion. It is presumed, however, that the power 
 claimed in England for the ordinary, of taking the goods of the 
 deceased into his own hands, under certain circumstances, does 
 not belong to the surrogates in this state; and probably not to the 
 tribunals in other states, having jurisdiction in testamentary 
 
MODE OF PROCEEDING. 201 
 
 matters. These courts act only through the persons to -whom they 
 delegate the authority conferred on them by the statute or the 
 common law. 
 
 Section III. 
 
 Of the practice of the court, its mode of 'proceeding iw grant- 
 ing letters of administration, and of their form. 
 
 The mode of proceeding to obtain letters of administration 
 varies in four different cases. First. If the applicant is the person 
 entitled to administration, as ■where the widow applies for letters 
 on the estate of her deceased husband, the application is made to 
 the surrogate, by petition in writing, setting forth the facts which 
 confer jurisdiction on the court, and showing the prior right of the 
 applicant. The surrogate is required in all cases, before any letters 
 can be granted on the estate of an intestate, to have proof of the fact 
 of such dying intestate ; and he is authorized therefore, to examine 
 the person applying for such letters, on oath, touching the time, 
 place and manner of the death, and whether or not the party 
 dying left any will ; and he may examine any other person or 
 persons on that subject, and compel their attendance by subpoena. 
 (2 R. S. 74, § 26.) Usually, however, the petition states the fact 
 of such death, the place of residence of the deceased at the time 
 of his death, the manner of his death, and that no will, after a 
 search amongst his papers, or as the case may be, has been found 
 or discovered, and that the applicant believes that he died intes- 
 tate ; the names and place of abode of his kindred, whether any 
 and which of them are infants, and if so, about how old, and 
 whether they have guardians or not, and if so, the name and 
 place of abode of such guardian, and the probable value of the 
 personal estate of the deceased. The petition should be verified 
 by aflSdavit, and is, in general, a satisfactory compliance with the 
 statute. {Sheldon v. Wright, 2 Seld. 497.) But it does not 
 preclude the surrogate from requiring an oral examination of 
 witnesses on the various points deemed material. (For form of 
 petition see Appendix, No. 38.) 
 
 If the facts disclosed by the petition show that the surrogate 
 has jurisdiction of the case, and that the applicant is entitled to 
 26 
 
202 BOND AND OATH OF OFFICE. 
 
 letters, as the person preferred by the statute, an order is en- 
 tered in the minute book for the letters to issue, on the applicant's 
 entering into the requisite bond, and taking the oath prescribed 
 by law. (2 R. S. 77, §§ 41, 42. 3 id. 161, bth ed.) The oath is 
 to be taken before the surrogate, or in case of sickness or other 
 inability to attend, before any ofiScer authorized to administer oaths, 
 that he will well, honestly and faithfully discharge the duty of 
 administrator according to law. (Appendix, Nos. 39, 40, 41, 42.) 
 
 The bond is to the people of the state of New York, with two 
 or more competent sureties, to be approved by the surrogate, to 
 be jointly and severally bound. The penalty must be not less 
 than twice the value of the personal estate of which the intestate 
 died possessed, which value is to be ascertained by the oath of the 
 applicant and of such other persons as the surrogate shall think 
 proper to examine. It must be conditioned that such administra- 
 tor shall faithfully execute the trust reposed in him, and also 
 that he shall obey all orders of such surrogate, touching the ad- 
 ministration of the estate committed to him. 
 
 By the law of 1851, p. 332, (3 R. S. 368, bth ed.) the bond 
 must be proved or acknowledged in the manner deeds are required 
 to be proved or acknowledged, before it shall be received by the 
 surrogate. (Appendix, No 40.) 
 
 On producing the bond and oath of ofiBce, if the sureties are 
 deemed suflScient, and the bond is drawn and proved, or acknowl- 
 edged, in conformity to the statute, they are filed by the surrogate, 
 and an order is thereupon entered in the minutes for letters of 
 administration forthwith to issue. The appointment is then made 
 out under the seal of the court, and recorded in the proper book, 
 It is provided that letters of administration shall run in the name 
 of the people, and be tested in the name of the surrogate, or othei? 
 officer granting them. When issued by the county judge or dis- 
 trict attorney, as they may be in certain cases, the seal of the 
 county court is affixed. (3 R. S. 167, § 73, bth ed. 2 R. S. 80, 
 § 55.) (For form of letters and orders see Appendix, No. 43, <fcc.) 
 
 Second. In case the applicant is not the person on whom the 
 right of administration is cast, although of kin, and is desirous of 
 
KENUKOIATION— CITATION. 203 
 
 avoiding the delay and expense of a citation, as where the son of 
 the intestate applies — his mother, the widow, being alive and 
 competent — he must, in addition to the other preliminary proof, 
 produce and prove the renunciation of those having prior right. 
 (2 R. S. 76, § -3.5.) No citation is in such case necessary. {Pe- 
 ters V. The Public Administrator, 1 Bradf. 200.) 
 
 A renunciation is a written declination of the right to adminis- 
 ter on the estate of the intestate, and is required to be subscribed 
 by the party making it. The practice is, on proving and filing it, 
 to enter an order in the minutes that it be received. A renuncia- 
 tion has no effect on the right of the party to his distributive 
 share of the effects of the intestate. Indeed, it may be retracted 
 after the death of the person to whom the administration was com- 
 mitted. ( Toller, 95 and 45.) It enures only to the benefit of 
 the party in whose favor it is made. In all other respects the pro- 
 ceedings are the same as under the last head. (See Appendix, 
 No. 50, for form of renunciation.) 
 
 Thirdly. In case the person applying for letters is not entitled 
 thereto as of course, and does not produce the renunciation of 
 those having prior right, a citation must be issued to all persons 
 having such prior right, to show cause, at a day and place therein 
 to be appointed, why administration should not be granted to such 
 applicant. (2 R. S. 76, § 35.) (Appendix for form, No. 46.) 
 
 Before this citation can be issued proof should be taken, by the 
 oath of some person, of all the facts necessary to authorize the 
 grant of administration. These are, the death, residence, intesta- 
 cy and kindred of the deceased, the grounds on which the appli- 
 cant found his claim, as creditor, or entitled to a distributive 
 share of the estate, and the probable value of the assets to be ad- 
 ministered. These facts are usually embodied in a written peti- 
 tion, as in the first case, which should be duly verified, and will, 
 in general, be all that the surrogate will require. It should con- 
 tain, in conclusion, the prayer for a citation to be directed to the 
 proper parties. 
 
 The citation should run in the name of the people of the state 
 of New York, be tested in the name of the surrogate or other ofiS- 
 cer, by whom it is issued, under the seal of the court, and cite and 
 require those to whom it is addressed to appear before the surro- 
 
204 CITATION— GUARDIAN AD LITEM. 
 
 gate at a time and place therein mentioned, to show cause why ad- 
 ministration of the intestate's estate should not be committed to 
 the applicant. It should be addressed to the persons having prior 
 right by name, if their names be known, and if not, that fact 
 should be stated, and such designation be given as would be likely 
 to bring the nature of the application to their notice. (^Bwn's 
 Ec. Law, tit. Ciiation.) In the citation required to be issued 
 preparatory to the proof of a will of real or personal estate, the 
 names and places of residence of the persons to whom it is ad- 
 dressed are required to be stated, as well as that of the guardians 
 of such as are minors. (/S'ee ante, p. 153, and 3 R. /S". 147, 5th ed.) 
 Although the statute is not as explicit in relation to a citation to 
 the parties having prior right, on an application for letters of ad- 
 ministration, no reason is perceived why it should not be equally 
 specific. 
 
 The mode of service of the citation varies according to the res- 
 idence of the persons to whom it is addressed. If they all reside in 
 the county of the surrogate, it must be served personally, or by leav- 
 ing a copy at the residence of the party, at least six days before 
 the return day mentioned in it. (2) If any of the parties live out 
 of the county, but in the state, and such residence can be ascer- 
 tained, it must be served personally, or by leaving a copy, at the 
 residence of the party, at least forty days before the return 
 day. (3) If any live out of the state, a personal service of forty 
 days will be sufficient. In the latter case, leaving a copy will 
 not sufiSce. (4) If the residence of the party is unknown, or 
 is out of the state, a publication of the citation once a week 
 for six weeks, in the state paper, is a sufficient service. (2 R. iS. 
 76, § 36.) Thus^ it appears, that as to those out of the state two 
 modes of service are allowed ; personal service, and a six weeks' 
 publication in the state paper, at the option of the applicant. 
 
 With regard to the appointment of guardian ad litem for in- 
 fants, the same practice should be pursued as on the application 
 to admit a will for probate, or to have it recorded as a will of real 
 estate. (See ante, p. 157.) If the infant has a general guardian, 
 the citation should be served on him, he being entitled to admin- 
 ister in right of his ward ; and if any of the next of kin are mar- 
 ried women, the service should be on their husbands. 
 
OBJECTIONS TO THE GEANT. 205 
 
 On the return of the citationj the applicant appears before the 
 surrogate either in person or by attorney, and exhibits proof of the 
 due service of the citation. If this shows a compliance with the 
 statute, and there is no opposition, an order is entered for the 
 issuing of letters of administration to the applicant on his entering 
 into the requisite bond and taking the oath prescribed by law. 
 The subsequent proceedings are the same as under the first head. 
 
 The grounds of opposition to the grant of administration are 
 various. Issue may be taken on the material averments in the 
 petition. The fact of the death, or the intestacy, may be contro- 
 verted. Or it may be shown that the party applying for letters 
 of administration is not entitled, by reason that some other party 
 who has not renounced, has a prior right ; or that he labors under 
 some or one of the disqualifications mentioned in the statute. 
 (2 R. S. 75, § 32.) Although it was held by the Court of Appeals, 
 in Emerson v. Bowers, (4 Kern. 449,) that the surrogate could 
 not supersede letters testamentary which had been issued to an 
 executor, on proof that he was illiterate, when the charge against 
 him was improvidence, it is believed that he may withhold the 
 appointment of an administrator, on proof that he is too ignorant to 
 discharge the duties of the office. There is, in the nature of things, 
 a difference between removing an executor nominated by the tes- 
 tator and withholding an appointment from a particular individual, 
 with respect to whom the surrogate has the power of selection. 
 On this subject no definite rule can be laid down. The want of 
 understanding mentioned in the statute as a ground of exclusion, 
 does not mean solely such mental incapacity as would disable a 
 party from making a will or a contract, but, in the connection in 
 which it stands, evidently implies not only such incapacity, but 
 also ignorance and dullness of apprehension falling short of a total 
 incompetency. In cases of this kind, and especially where the ob- 
 jections are not such as are specifically enumerated in the statute, 
 the surrogate must consult the interest of the estate, as well as the 
 rights of the applicant. It is said that administration ought not 
 to be committed to a party who is very poor, or4n distressed cir- 
 cumstances, especially if the estate is of considerable value. 
 (roZfer, 102.) 
 
206 OITATIOH TO ATTORNEY GENEEAL. 
 
 Fourthly. In case the applicant is guardian, or a husband of 
 the party entitled, the petition must set forth, in addition to the 
 facts required under preceding heads, the relation he bears to the 
 intestate and the party entitled to the grant. The prayer of the 
 petition should in such case also state in what right, either as 
 guardian or husband, he asks the appointment. In other respects 
 the practice is the same as in other cases. 
 
 It is proper here to observe that in all cases of application for 
 administration on the estate of an intestate a citation must be 
 issued to, and served on, the attorney general of the state, at least 
 twenty days before its return, unless it appears, by the alEdavit of 
 the applicant or other written proof, that the intestate left kindred 
 entitled to his estate, specifying the names of such kindred and 
 their places of residence, as far as the same can be ascertained. 
 (2 R. S. 76, § 37.) 
 
 It is said to be the practice in England not to issue letters of 
 administration until after the expiration of fourteen days from the 
 death of the intestate, unless for special cause, (as that the goods 
 would otherwise perish, or the like,) the judge shall see fit to de- 
 cree them sooner. (1 Ought. 323, 324. Toller, 96. 2 Burn's 
 Ec. Law, quarto ed. title Wills, Administration, 640. 1 Wms. 
 Ex'rs, 371.) In this state, when the grant is applied for by a 
 ■^wcty prima facie entitled to it under the statute, as having the 
 prior right, or with the renunciation of such antecedent party in 
 his favor, or upon the return of a citation duly served, upon all the 
 prior parties specifically mentioned in the section, there is no 
 reason for the delay, nor does that practice prevail. But should 
 a case occur where none of the parties enumerated in the 27th sec- 
 tion appear to claim the grant, and the application is made by a 
 stranger as a person legally competent, it is believed that the sur- 
 rogate would act most discreetly, who should withhold the grant 
 for at least the time mentioned, to see whether some person having 
 a better right would not appear. Such a case would rest upon the 
 common law, and'not upon the statute. 
 
SPECIAL ADMINISTRATIONS. 207 
 
 CHAPTER VIII. 
 
 OP SPECIAL, LIMITED AND TEMPORARY ADMINISTRATIONS, 
 AND COLLECTOR. 
 
 Section I. 
 Of administration cum testamento annexo. 
 
 We gave a general summary in tbe introduction to the pre- 
 ceding chapter, of the various kinds of administration existing 
 at common law and under our statutes in this state, previous to the 
 adoption of the revised statutes. We pointed out the difference 
 between a general administration, in cases of intestacy, and various 
 other grants of administration, whether special, limited or tempo- 
 rary. And we treated in that chapter, of general administration ; 
 of the courts having jurisdiction in such cases ; of the persons to 
 whom the grant should be made, and therein of the disqualification 
 and incapacity of certain parties ; and we noticed briefly the prac- 
 tice of the court on applications for the grant. 
 
 We propose, in the present chapter, to notice more at large the 
 cases of special, limited and temporary administration, as they 
 now exist in this state. And to point out some of the diversities 
 between our present practice and that which formerly prevailed. 
 
 Many of the cases in the present chapter, were not considered 
 in England as falling within the statute of administrations, (21 
 Henry 8, ch. 6,) which provided only for cases of intestacy, and 
 the refusal of the appointed executor. In such instances the 
 spiritual courts were left to the exercise of their own discretion in 
 the choice of administrator, according to their own practice ; and 
 jio person had such a legal right to preference that it could be 
 enforced by the common law courts. (1 Wms. Ex'rs, 381. Rex v. 
 Betteswwth, 2 Str. 956. In the goods of iSouthmead, 3 Curteis, 
 28.) We showed that our former statute was substantially copied 
 from the act of Henry 8, and consequently that the English prac- 
 tice and our own were much alike. (1 R. L. 444.) Under the 
 English practice, in cases where the grant of administration was 
 not within the statute, the rule was to treat the claimants having 
 
208 SPECIAL ADMINISTRATIONS. 
 
 the greatest interest in the effects of the deceased, as prima facie, 
 entitled ; unless there were some special or peculiar circumstances 
 ■which required a different disposition of the matter. ( Wetdrill 
 V. Wright, 2 Phill. 248. Tucker v. Westgarth, 2 Add. 352.) 
 And the rule in this state was the same. 
 
 Under the revised statutes, it has been the policy to leave less to 
 the discretion of the surrogate in the selection of administrators, 
 by defining specifically the party entitled to the grant. The legis- 
 lature have not lost sight of the principle, that the parties having 
 the interest in the estate, should prima /acie have the control of 
 its administration. 
 
 Thus, it is enacted that if all the persons named in a will as 
 executors should renounce, or after summons issued and served 
 shall neglect to qualify, or shall be legally incompetent, letters 
 testamentary shall issue and administration with the will annexed be 
 granted as if no executors were named in the will, to the residuary 
 legatees, or some or one of them, if there be any ; if there be none 
 that will accept, then to any principal or specific legatee, if there 
 be any ; if there be none that will accept, then to the widow and 
 next of kin of the testator, or to any creditor of the testator, in the 
 same manner and under the like regulations and restrictions as 
 letters of administration incases of intestacy. (2 R. S. 71, § 14.) 
 
 The foregoing section relates strictly to cases only in which there 
 either never was an executor, or an executor never acted. But a 
 case falls within the same principle and requires the same remedy 
 when, after partially administering the estate, all the executors 
 die, become incapable of executing the trust, or the power of all of 
 them shall be revoked according to law. The death, incapacity, or 
 removal of all the administrators of an estate, would fall under the 
 same rule. • The first case calls for letters of administration, cutu 
 testamento annexo, de bonis non ; and the last for an administration 
 de bonis non. Both are in fact provided for in the same section, 
 (2 R. S. 78, § 45,) which directs in such a case letters of admin- 
 istration upon the goods, chattels, credits and effects of the deceased 
 left unadministered, with the will annexed, or otherwise as the 
 case may be, to the widow or next of kin, or creditors of the de- 
 ceased, or others, in the same manner as is directed in relation to 
 the original letters of administration. 
 
ADMINISTRATION CUM TESTAMENTO ANNEXO. 209 
 
 It has sometimes been insisted that a person so appointed ad- 
 ministrator is not bound to give a bond like a general administrator. 
 But the statute obviously requires the oath of office and bond from 
 these administrators the same as in the case of a general adminis- 
 tration. (2 R. S. 77, §§ 41, 42. Id. 78, § 45. Ei parte Brown, 
 2 Bradf. 22.) 
 
 With regard to the power of an administrator with the will 
 annexed, it is enacted that where such letters are issued the will 
 of the deceased shall be observed and performed ; and the admin- 
 istrators with such will, shall have the rights and powers, and be 
 subject to the same duties as if they had been named as executors 
 in the will. (2 R. S. 72, § 22.) But this, it seems, must be 
 understood with reference only to the personalty. Hence, a power 
 to an executor to sell and dispose of real estate granted by a will, 
 and to divide the proceeds among devisees to whom the estate was 
 given by a previous clause in the same will, cannot, after the death 
 of the executor, be executed by an administrator cum testamento 
 annexo, notwithstanding the above provisions of the act. ( Con/din 
 v. Egerton's Administrator, 21 Wend. 430. /S*. C. affirmed, 25 
 Wend. 224.) 
 
 In case there are several executors named in the will, the 
 authority vests in the survivor on the death of his companions, or 
 in case of their incapacity to act. We have seen that in cases 
 where there has been no executor named in the will, or if named, 
 none has ever acted, the administration with the will annexed goes 
 first to the residuary legatee, and if there be none, then to any 
 principal or specific legatee, and in default of any such, then to the 
 widow and next of kin of the testator. This branch of the statute 
 gives the preference to the legatee over the widow and next of kin. 
 This is contrary to the English practice in similar cases. They 
 usually prefer the next of 'kin after the residuary legatee, to a 
 specific or general legatee. {Kooystra v. Buyskes, 3 Phill. 531.) 
 The reason of their rule seems to be this ; where there is no resid- 
 uary legatee the surplus, after paying debts and legacies, goes to 
 the next of kin, who thus have the same interest as a residuary 
 legatee. In most instances a legatee would feel a stronger interest 
 27 
 
210 WHAT PARTIES TO BE CITED. 
 
 than the next of kin, especially if ttere was little chance of a 
 surplus. 
 
 In case the residuary legatee survives the testator, but dies be- 
 fore probate of the will, the case is not provided for by the 14th 
 section. In stich a case he has a beneficial interest which vests 
 in his' representative, and, according to the common law practice, 
 such representative had the same right to administration cu7n testa- 
 mento annexo, as the residuary legatee himself, and was therefore 
 entitled to administration in preference to the next of kin of the 
 first testator. [Jones v. Beytaoh, 3 Phill. 635.) By the same 
 reasoning, they would be entitled to be preferred before a general 
 or specific legatee. 
 
 The right of the residuary legatee to administration cum testa- 
 mento annexo, in England, resting only in the practice of the spiritu- 
 al court, cannot, it seems, be enforced by mandamus, because it is not 
 a strictly legal right. {Rex v. Bettesworth, 2 Stra. 956.) With 
 us, however, it is a right declared by statute, and does not rest 
 upon the rules of practice of the court. 
 
 In all these cases, where a party has a prior right, he must re- 
 nounce or be cited, before administration can be committed to any 
 other. Therefore, the executor, if there be one, must be cited be- 
 fore a grant to the residuary legatee ; a residuary legatee before 
 a grant to a specific legatee, and so on through' all the gradations 
 of priority. (2 B. S. 76, § 35.) So, if there be a testamentary 
 disposition without an executor, it has been laid down that the 
 party in whose favor the disposition is made, must cite the next of 
 kin before he can have administration cum testamento annexo. 
 In the case of a foreign will, it is the usage to grant administra- 
 tion, with the will annexed, to the attorney in fact of the foreign 
 executor. If there be no one authorized to apply as such attorney, 
 letters issue, according to the statute, to the legatee's widow and 
 next of kin. The grant of administration is regulated by the law 
 of the place where the assets are situated. (^In the matter of the 
 estate of Jacinto Texador, 2 Bradf. 105.) 
 
 The mode of practice in this case, differs but little from that in 
 obtaining general administration. If the will has not been admit- 
 ted to probate, the like steps must be taken to cause it to be done, 
 
ADMINISTRATION DE BONIS NON. 211 
 
 that would have been pursued by the executor if living. After 
 probate is granted on the will, it is conceived that letters of ad- 
 ministration with the will annexed, may be granted forthwith to 
 the applicant on his taking the oath required by law, and execut- 
 ing and delivering to the surrogate the requisite bond, with 
 sureties, duly proved or acknowledged. It is presumed that it is 
 not a case in which the letters can be delayed on the filing of an 
 affidavit of interested parties, as in the case of letters testamentary 
 to an executor. (Z,. of 1837, ch. 460, § 22. 3 R. S. 154, 5th ed.) 
 The petition to the surrogate should state all the requisite facts, 
 showing the jurisdiction of the court, and the title of the applicant, 
 and the proper parties to be cited, and conclude with the prayer 
 for a citation in the usual form. The practice is quite simple, 
 and is much like that on the application for probate, if the will has 
 not already been proved, or that on an application for letters of ad- 
 ministration, if probate has already been had. (See form in Ap- 
 pendix.) 
 
 Section 11. 
 Of administration de bonis non. 
 
 The second class of special administration is an adminis- 
 tration de bonis non ; and the necessity for it, in this state, 
 arises in all cases where either a sole executor dies leav- 
 ing the estate of his testator unadministered, or a sole adminis- 
 trator dies without having completed the object of his ap- 
 pointment. 
 
 There is no need of such an administration in case any one, save 
 the last of several executors or administrators to whom letters tes- 
 tamentary or of administration shall have been granted, shall die, 
 become lunatic, convict of an infamous offense, or otherwise be- 
 come incapable of executing the trust reposed in him ; or, in case 
 the letters testamentary, or of administration, shall be revoked or 
 annulled, according to law, with respect to any one executor or ad- 
 ministrator. For in such a case the remaining executors or admin- 
 istrators are required to proceed and complete the execution of the 
 will or the administration, according to law. (2 R. S. 78, § 44.) 
 
 But if there be a plurality of executors or administrators, and 
 
212 ADMINISTRATION DE BONIS NON. 
 
 all die, or become incapable as above mentioned, or the power and 
 authority of all of them be revoked according to law, the surrogate 
 having authority to grant letters originally, is empowered to issue 
 letters of administration upon the goods, chattels, credits and as- 
 sets of the deceased left unadministered, with the will annexed, or 
 otherwise, as the case may be, to the widow or next of kin, or 
 creditors of the deceased, or others, in the same manner as herein 
 before directed in relation to original letters of administration^ 
 The administrator so appointed is required to give bonds in the 
 like penalty, with like sureties and conditions as required of ad- 
 ministrators in case of intestacy, and he possesses the same power 
 and authority. Such letters supersede all former and other let- 
 ters testamentary or of administration upon the same estate, 
 (2 R. iS. 78, § 45.) 
 
 Formerly there was no occasion for letters 6f administration de 
 bonis non on the death of a sole executor after probate, who him- 
 self made a will appointing an executor, for in such a case the en- 
 tire representation of the original testator would, at common law, 
 be transmitted to him. This rule is abolished in this state, and 
 on the death of the sole surviving executor of any last will, letters 
 of administration with the will annexed, of the assets of the first 
 testator left unadministered, are required to be issued, as above 
 provided. (2 R. S. 71, § 17. Shook v. Shook, 19 Barb. 656.) 
 And this whether the sole executor dies intestate or not. 
 
 If there were several executors, and one alone proved the will, 
 and the rest renounced, it is said that upon the death of him who 
 proved the will, no interest was transmissible at common law, be- 
 cause the representation survived to the co-executors who might, in 
 spite of their former renunciation, assume the executorship. But 
 if they persisted in declining, an administration de bonis non be- 
 came necessary. 
 
 This administrator de bonis non will, when appointed, be the 
 only representative of the party originally deceased. {Dale v. 
 Roosevelt, 8 Cowen, 333.) Such administration will evidently bo 
 committed cum testamento annexo, if the deceaaed left a will, and 
 will be granted to the person entitled according to the general 
 principles already developed in cases of administration. In many 
 instances it is obvious he will be a different person from the repre- 
 
ADMINISTRATION DE BONIS NON. 213 
 
 sentative of the deceased executor ; but if the excutor be also 
 beneficially residuary legatee, his representative will likewise be 
 entitled to the administration de bonis non to the original testator. 
 
 With regard to the consequences of the death of an administra- 
 tor, we have seen that the statute makes no difference between the 
 death of a sole executor and a sole administrator. Both are placed 
 upon the same footing. The subsequent proceedings in both cases 
 are alike. 
 
 If a party, who from his relation to the intestate at the time of 
 his death, was entitled to administration, dies before letters of ad- 
 ministration are obtained, ,his representative is entitled to the 
 grant in preference to one who has no beneficial interest in the 
 effects, although he may have become next of kin at the time the 
 grant is required. (Almes v. Alnies, 2 Hagg. App. 155.) 
 
 The common law, like the New York statute, adopted the prin- 
 ciple that where the administration had been granted to two or 
 more, and one died, the survivors or survivor became sole adminis- 
 trator. It was not like a letter of attorney to two, where by the 
 death of one the authority ceased ; but it was an office analogous 
 to that of executor, an authority coupled with an interest, which 
 survives. (2 P. Williams, 121.) 
 
 With regard to the person who, upon the death of the sole or 
 last surviving administrator, is entitled to be appointed adminis- 
 trator de bonis non to the original intestate, our statute, instead of 
 leaving it as in England, to the discretion of the surrogate, re- 
 quires that it should be granted to the widow or next of kin, or 
 creditors of the deceased or others, in the same manner as is di- 
 rected in relation to the original letters of admininistration. The 
 administrator so appointed is required to give bonds with the like 
 penalty, with like sureties and condition as required of administra- 
 tors in cases of intestacy ; and he possesses the like power and 
 authority. The letters when so granted supersede all former or 
 other letters upon the same estate. (2 R. iS. 78, § 45.) 
 
 The principle of the New York statute is in substantial accordance 
 with that of the decisions under the former law, which was a tran- 
 script of the statute of Henry 8. Upon 'the death of an original 
 administrator, a person who was next of kin at the time of the 
 
214 ADMIlsriSTEATION DUEANTE MINOEE iETATE. 
 
 death of the intestate was entitled to the de bonis non grant, in 
 preference to the representative of the original administrator, or 
 to the representative of any other next of kin at the time of the 
 death. The courts made no distinction between an original and 
 a de bonis non administration. 
 
 The statute of this state, before cited, (§ 45,) doubtless means 
 next of kin at the titne of the death of the intestate. But it never- 
 theless takes from the court the power of an unlimited discretion, 
 and fixes the principle on which the grant is to be made, by adopt- 
 ing the rule before established in cases of intestacy. The court, 
 therefore, is bound in this state by the same rules in determining 
 the grant of a de bonis non administration, that control its discre- 
 tion in granting a general administration, and which have been 
 already considered in their proper place. 
 
 The practice of the court in granting letters of administration 
 de bonis non is essentially the same as that which prevails in ob- 
 taining a general administration. (See ante, and for form see Ap- 
 pendix.) ' 
 
 Section III. 
 
 Of administratimi durante tninore cetate, and herein of admin- 
 istration to the guardian of an infant next of kin. 
 
 In the former part of this chapter, it was stated that limited 
 administrations are of two kinds. 1st. Such as are confined to a 
 particular extent of time ; and 2d. Such as are confined to a 
 particular subject matter ; and the former was said to embrace, 
 1, an administration durante minor e mtate ; 2, an administra- 
 tion pendente lite ; and 3, an administration durante absentia. 
 (Ante, page 185.) We propose to treat in the present section, 
 of administration durante minore cetate, and in connection there- 
 with, of the granting of administration to the guardian of an 
 infant. 
 
 This species of administration is granted where the person ap- 
 pointed sole executor, or he to whom, in case of intestacy, the- 
 right to administration had devolved under the statute, is under 
 the age of twenty-one years. In the former case, it is obviously 
 a species of administration cum testametito anne.ro. 
 
ADMmiSTRATIOlT DURANTE MINORE iETATE 215 
 
 At common law the practice was said to be to grant the admin- 
 istration to the guardian of the party entitled. With respect to the 
 appointment of a guardian, a distinction exists in the spiritual courts 
 between an infant and a minor. The former is so denominated 
 if under seven years of age, the latter from seven to twenty-one. 
 The ordinary ex officio asigns a guardian to an infant ; the minor 
 himself may nominate his guardian ; who is then admitted in that 
 character by the judge ; but if he makes an improper choice the 
 court will control it. According to the practice of the prerogative 
 court the guardianship in either case is granted to the next of kin 
 of the child, unless sufficient objection to him be shown. This dis- 
 tinction between infant and minor is recognized in our courts ; 
 but the period of infancy embraces all under fourteen, in which 
 case the appointment is made on the recommendation of a next 
 friend ; and a minor is a person of fourteen and under twenty-one, 
 and has a right of nominating his own guardian. But there 
 were many instances, at common law, where administration has 
 been granted to persons not the guardian of the minor, and where 
 the courts refused to give it to a person nominated by him. In 
 some instances it has been granted to a creditor in preference to 
 the guardian. ( West v. Wilby, 3 Phill. 374. In the goods of 
 Ewing, 1 Hagg. 381.) 
 
 We have shown elsewhere, that the common law in testamentary 
 matters and matters of intestacy, was the law of the colony of New 
 York, and that since the revolution the entire jurisdiction in such 
 cases became vested in the court of probate and surrogate's court ; 
 and that at the present time, it is vested in the surrogates' courts, 
 which, in this respect, are courts of general jurisdiction, and "have 
 exclusive original jurisdiction over such subjects. 
 
 We have, it is true, but meager information as to the actual 
 practice in the case of minors, prior to the revised statutes. The 
 decisions of the court of probate and surrogates' courts were not 
 reported. But we have some evidence of what the practice was 
 at that time. Mr. Bridgen, whose treatise on the office of surro- 
 gate was published in 1825, lays it down as the proper practice 
 to grant administration to the guardian of the infant during his 
 minority. And in case no guardian will accept, and the adminis- 
 tration has to be granted to a stranger, he held that it should be 
 
216 ADMINISTEATION DURANTE MmORE iETATE. 
 
 so granted only durante minore estate. (Bridgen's Surrogate, 
 62, 53.) Mr. Bridgen was a lawyer of respectable attainments, 
 and held the office of surrogate in Albany county for many years ; 
 and doubtless was familiar with its practice and that of the old 
 court of probate, which was held in Albany. 
 
 There was an established difference at common law, where ad- 
 ministration was granted to one as guardian to an infant, who had 
 a right to administer, but was incapable of taking it by reason of 
 his minority, and where administration was granted during the 
 minority of an infant executor ; that in the last case the adminis- 
 tration determined as soon as the executor attained the age of 
 seventeen years ; but in the other case, it continued till the infant 
 attained his full age. The English statutes of 38 Geo. 3, ch. 87, 
 abrogated this distinction. It enacted that where an infant was 
 sole executor, administration with the will annexed should be 
 granted to the guardian of the infant, or to such other person as 
 the spiritual court should think fit, until such infant should have 
 attained the full age of twenty-one years, at which period and 
 not before, probate of the will should be granted to him, the in- 
 fant. And the next section enacted that the person to whom 
 such administration should be granted, should have the same pow- 
 ers vested in him, as an administrator then had by virtue of an 
 administration granted to him durante minore (state of the next 
 of kin. {Bac. Abr. tit. Ex'r and Adnir, B. 2, ch. 1.) 
 
 It seems to have been the practice of the spiritual courts, in 
 such cases, sometimes to grant a general administration, without 
 any words of limitation ; and sometimes a special one, where the 
 administration was granted to him, ad opus et usum of the infant 
 only. In the first case it is said " he has as large a power as 
 another administrator has, and therefore he may assent to a 
 legacy, albeit there be no assets to pay debts ; he may sell any 
 of thfi goods or chattels of the deceased, or give them away, or 
 the like, as another administrator may do. But in the last case 
 it is otherwise ; for such a special administrator can do little more 
 than the ordinary himself ; and therefore, he may not sell any of 
 the goods or chattels of the deceased, except it be in case where 
 they are like to perish, for funeral expenses or for payment of 
 debts ; nor may he assent to a legacy where there is not assets to 
 
ADMINISTEATION DURANTE MINOEE iETATE. 21T 
 
 pay debts, &c." {See also Sir Moyle Finch's case, 6 Coke, 67, 
 68,) to the same effect. (2 Touch. 490.) There is no adjudged 
 case in this state as to the form in which this sort of administra- 
 tion should be granted, or the power which it confers. The statute 
 enacts that if any person who would otherwise be entitled to 
 letters of administration as next of kin, or to letters of adminis- 
 tration with the will annexed, as residuary or specific legatee, shall 
 be a minor, such letters shall be granted to his guardian, being 
 in all respects competent, in preference to creditors or other per- 
 sons. (2 R. S. 75, § 33.) 
 
 If this grant be general, the power and duty of the administrator 
 would be the same as a general administrator in cases of intestacy. 
 
 The statute no doubt authorizes the grant of administration 
 during the minority of the infant, to a guardian appointed by the 
 surrogate, a guardian appointed by the supreme court exercising 
 the powers of a court of equity, or to a testamentary guardian. All 
 these several species of guardianship are placed on the same foot- 
 ing. (2 R. S. 150.) But it goes further ; it requires the surro- 
 gate to make the grant to the guardian of the infant who is 
 entitled and willing to accept it, and who is in other respects 
 qualified; and thus, in effect, takes from the court, the power 
 which it sometimes exercised at common law, of passing by the 
 guardian, and making the grant to other parties. (2 R. S. 74, 
 § 27. Id. 75, § 33.) It is silent as to the duration of the grant. 
 But it requires from the person appointed administrator, a bond 
 and oath of office, as in cases of general administration. It is 
 silent also, as to whether the grant shall be general or special. 
 
 It is believed that the surrogate may in such a case make the 
 grant general. The grant to the guardian being mentioned in 
 connection with the general administration, without any qualifica- 
 tion or restriction, raises the presumption that the legislature did 
 not intend a different form in the one case from the other. But if 
 there be no guardian, willing to accept, and the right of adminis- 
 tration devolves on the infant, and the grant is made to a stranger, 
 it should be conformable to the common law practice, and be made 
 specially to the use of the infant, and determinable on his arriving 
 at majority. The case not being within the statute, the form of 
 <;he letters would be within the discretion of the court, and be 
 
 28 
 
218 ADMINISTRATION DURANTE MINORE iETATE. 
 
 either general or special as the court should judge best. In either 
 case, the infant on coming of age, would be entitled to call in the 
 administration and have it revoked, and letters granted to himself, 
 {See remarks of Spencer, J. in Taj/lor v. Delancy, 2 C. C. in 
 Error, 144, mid Wickwire v. Chapman, 15 Barb. 302.) 
 
 The guardianship terminates on the infant's arriving at full age. 
 He is then entitled to an account from his guardian and to the gene- 
 ral management of his affairs. If the grant of administration be 
 special, it would terminate at that time, without any action of the 
 court. If the grant be general, it would continue until the duties 
 of the oflSce had been fully discharged, unless the court, on the 
 application of the infant, after he had attained his majority, should 
 see fit to call in the letters, and grant administration de bonis non 
 to the infant, now become an adult, in his own right. 
 
 In efifect the administrator durante minore ceiaie and the exec- 
 utor after he becomes of age, constitute together but one repre- 
 sentative of the original testator. They are respectively parts of 
 an entire representation. The same doctrine applies to an admin- 
 istrator durante minore estate granted in cases of intestacy, and 
 the substituted administration granted to the infant on his attain^ 
 ing his full age. 
 
 In this state, the death, removal from office or superseding of a 
 sole executor or administrator plaintiff, does not abate the suit but 
 the same is allowed to continue in the name of the persons Who 
 shall succeed in the administration of the estate. (2 R. S. 115, 
 §§ 14, 15. Camfbell v. Bowne, 5 Paige, 34. Baine v. Pine, 1 
 Phill. 615. Code of Procedure, § 121.) 
 
 The question, mentioned in the old books of authority, whether 
 an action brought by an administrator durante minore estate, 
 abated by the arriving of the infant at full age, is put at rest in 
 this state by the code of procedure. {Code, k 121.) If the letters 
 be special, and terminate on the infant's attaining full age, it ope- 
 rates merely as a transfer of interest, by force of law, from the ad- 
 ministrator to the infant, and the court will allow the action to be 
 continued by or against the infant ; or, if need be, in the name of 
 the party in whose favor it was commenced. In case the letters 
 
OF OTHEE LIMITED ADMIOTSTEATIONS. 219 
 
 were general, it is very clear that the arrival of the infant at full 
 age -would have no effect on the action, until the court should re- 
 voke the grant and make a new one to the infant ; in which case 
 the latter would be substituted for the former. 
 
 The mode of obtaining the grant in cases of this kind, is similar 
 to that of obtaining letters of administration. The petition must 
 be varied only to suit the circumstances of the case. 
 
 Section IV. 
 
 Of collector, and herein of administration 'pendente lite, durante 
 absentia, and of other limited or temporary administrations. 
 
 In addition to the special administrations which we have been 
 considering in the preceding sections, there were, at common law, 
 several others, which we will noV proceed to notice. The two 
 most important of these, were the one granted pendente lite, and 
 the one granted durante absentia. The first was granted at 
 common law, in case of a controversy in the spiritual court con- 
 cerning the right of administration to an intestate, or the granting 
 of probate upon a will ; and the second, where the executor named 
 in the will, or the next of kin, were out of the state, and probate 
 had not been granted or letters of administration issued, in all of 
 which cases the court had the power to grant to another a limited 
 administration, durante absentia. ( Walker y. Woolaston, 
 2 P. Wms. 689. Wills v. Rich, 2 Atk. 286.) It is believed 
 that both these kinds of administration were occasionally granted 
 in this state, under the colonial government, and under the state gov- 
 ernment, prior to the adoption of the revised statutes. These, 
 and various other species of special administration, were not within 
 the letter of the English statutes of Henry 8, regulating the 
 granting of administration, but were supposed to be within its 
 equity, and the courts in making the grant were governed by their 
 own practice. The statute of Henry 8, on this subject, was held 
 by the court of errors, as early as 1815, to be a part of the law of 
 the colony, and was said to have been adopted as the law of the 
 state by the constitution of 1777. (Per Spencer, J. in Taylor 
 V. Delancy, 2 C. C. Error, 149.) It was subsequently re-enacted 
 substantially in the act of 1787, and the revised laws of 1801, and 
 
220 OF COLLEOTOE. 
 
 in the act of 1813. (1 R. L. of 1813, p. 444.) According to the 
 general principle in such cases, the adoption by the colony of the 
 statute law of the mother country, usually carries along with it, 
 the practice of the courts growing out of it, so far as they are ap- 
 plicable to the circumstances and condition of the colony. The 
 incidents and accessories generally follow the state of the prin- 
 cipal. 
 
 The former practice of granting a limited administration, pen- 
 dente lite, and durante absentia, has not been, in terms, repealed, 
 nor is it entirely incompatible with our practice in other respects. 
 But the revised statutes of 1830, as modified by the act of 1887, 
 have provided a convenient substitute for both these kinds of spe- 
 cial administration, and which will, in effect, supersede the former 
 practice. (2 R. iS. 76, §§ 38 a7id 39, as amended by act of 1837, 
 jch. 46, §§ 23, 24. 3 id. 160, 161, 5th ed.) 
 
 It is provided by the statute above cited, that in case of a con- 
 test relative to the proof of a will, or relative to granting letters 
 testamentary or of administration with the will annexed, or of ad- 
 ministration in cases of intestacy, or where by reason of absence 
 from this state of an executor named in a will, or for any other 
 cause, a delay is necessarily produced in granting such letters, 
 the surrogate authorized to grant the same may, in his discretion, 
 issue special letters of administration, authorizing the preservation 
 and collection of the goods of the deceased. 
 
 The collector so appointed is clothed with authority to collect 
 the goods, chattels, personal estate and debts of the deceased, and 
 to secure the same at such reasonable expense as the surrogate 
 shall allow, and for these purposes he may maintain suits as ad- 
 ministrator. Under the direction of the surrogate, he may sell 
 such of the goods of the deceased as shall be deemed necessary for 
 the preservation and benefit of the estate, after the same shall have 
 been appraised. 
 
 The collector is required to take the oath of office like an admin- 
 istrator. (2 R. S. 77, § 41.) He is also required to execute a 
 bond with sureties, to be approved by the surrogate, in the same 
 penalty as in the case of an administrator, and the same proceed- 
 ings are to be had in order to ascertain the penalty. The condi- 
 tion of the bond is, that he shall make a true and perfect invento- 
 
OF OOLLEOTOK. 221 
 
 ry of such of the assets of the deceased as shall come to his 
 possession or knowledge, and return the same, -within three 
 months, to the office of the surrogate granting such letters ; that 
 he will faithfully and truly account for all property, money and 
 things in action, received by him as such collector, whenever re- 
 quired by the said surrogate, or other court of competent author- 
 ity ; and will faithfully deliver up the same to the person or per- 
 sons who shall be appointed executors or administrators of the 
 deceased, or to such other person or persons who shall be appoint- 
 ed executors or administrators of the deceased, or to such other 
 person as shall be authorized to receive the same by such surro- 
 gate. (2 R. S. 77, § 43.) 
 
 This species of special administration is never granted except 
 where there is a necessary delay in proving the will, or the right- 
 ful executor is out of the state. In one case, during a contest 
 on the probate of a will, a special collector had been appointed by 
 the surrogate of the city and county of New York, with directions 
 not to institute suits without the permission of the surrogate ; the 
 widow of the deceased claimed certain property as gifts made to 
 her in the lifetime of her husband, the collector having applied for 
 leave to test the validity of the gifts in an action at law, permis- 
 sion was granted by the court. {Delafield v. Parish, 4 Bradf. 24.) 
 
 With respect to the right to institute suits, it was held in the 
 same case, that the collector stands on the same footing as other 
 administrators, and is the judge of the propriety of his own course 
 of action, subject only to his liability when the administration is 
 terminated, and the accounts are settled before the surrogate. If 
 he fail to institute suits at the instance of parties in interest, upon 
 the offer of sufficient indemnity, he may be held accountable for the 
 loss resulting from his refusal. {Id.) 
 
 The appointment of a collector is entirely within the discretion 
 of the surrogate, and is usually made whenever there is a proba- 
 bility of long delay in the grant of administration in chief. Pend- 
 ing litigation of the probate the estate should not be left without 
 official care and supervision, and in making this appointment an 
 indifferent person should be selected. It is not proper or custo- 
 mary to appoint either of the litigating parties, collector. (Mooirie 
 Y. Hunt, 4: Bradf . IIS.) 
 
222 OF COLLEOTOB. 
 
 In the city of New York, it is said byMr. Dayton in his valuable 
 treatise (Dayton's Surrogate, 231) that the public administrator 
 is generally selected as the collector, in case of a contest about a 
 •will or the grant of administration. The court in such cases have 
 allowed that officer, pending such a contest, to sell such portions of 
 the assets as may be necessary for the preservation and benefit of 
 the estate. { The Public Administrator v. Burdell, 4 Bradf. 252.) 
 
 If there be a clear outstanding legal title adverse to the estate, the 
 court may refuse the sale ; yet if there be reasonable cause for 
 doubt, the proper course is said to be to permit the sale and let 
 the question be tested by the court having jurisdiction of the 
 subject matter. If the alleged adverse interest be well founded, 
 the party has an adequate remedy in courts of law. {Id.) 
 
 When the purpose for granting this special administration has 
 terminated, the authority conferred by it comes to an end, and the 
 party rightfully entitled to the control of the estate should be put 
 in possession. The criterion by which this is determined and 
 some of the consequences are provided for in the statute. Upon 
 letters testamentary, or of administration, being granted, the 
 power and authority of the collector ceases. But any suit brought 
 by him may be continued by the executor or administrator, in 
 the name of the collector, which he shall not have power to discon- 
 tinue or release. Such collector on demand is required to deliver 
 to the executor or administrator all the property and money of the 
 deceased in his hands, and shall render an account on oath to the 
 surrogate, of all his proceedings, upon being cited for that purpose, 
 or without such citation. Such delivery and account may be en- 
 forced by an order of the surrogate, and by attachment to be 
 issued by him as in other cases of administration. (2 R. S. 77, 
 § 40. ( Gottsberger v. Smith, 2 Bradf. 86.) It ia presumed since 
 the adoption of the code, the rightful executor or administrator, 
 as the case may be, can be substituted for the collector in all 
 pending suits. {Code, § 121.) 
 
 There are several other instances of temporary and limited ad- 
 ministrations granted as well cum testamento annexo as in cases 
 of intestacy, which are not embraced in either of the preceding 
 heads. Thus, if a testator appoints an executor for a limited time 
 
SPECIAL ADMINISTRATIONS. 223 
 
 and afterwards to another person ; or if he appoints an executor to 
 take effect at a future day, it is evident that before the time thus 
 designated arrives, a limited administration must be granted cum 
 testamento annexo. {Toller, M. 1 TFms. £'a:Vs, 203.) This case 
 is not covered by the provision for the appointment of a collector. 
 There are numerous cases collected by Mr. Justice Williams in 
 his excellent treatise on executors and administrators, volume 
 1, page 425 to 439, and which show the occasional necessity for a 
 special administration, to do a particular act. In some of those 
 cases the collector appointed under the New York law would an- 
 swer the purpose, and in others a remedy might be obtained by an 
 action in the nature of a bill in equity. 
 
 It has always been the policy of the common law to leave no 
 right without some efficient means to enforce it, and to provide an 
 appropriate remedy for every wrong. As the legislature has not 
 expressly repealed the authority to grant limited and temporary 
 administrations in cases not hitherto mentioned, and as the only 
 clause in the revised statutes which contained an implication which 
 might be construed into such repeal of the common law authority, 
 has itself been repealed, (2 R. S. 221, § 1, sub. 8, repealed hy 
 Li. of 1837, p. 536,) it seems to follow that the jurisdiction to grant 
 special administrations, not mentioned in the revised statutes, still 
 remains. The providing of a new remedy to enforce an existing 
 right does not take away the old remedy, unless the substituted 
 remedy is incompatible with that which before existed, or there is 
 an obvious intention of the lawgiver to repeal the former. (See 
 ■per Beardsley, J. in The Peoples, Guild, 4 Denio, 652.) Thus, 
 the code of procedure, which substituted supplementary proceed- 
 ings on the return of an execution unsatisfied in whole or in part, 
 for the former practice of creditors' bills, has never been thought 
 to oust the supreme court of jurisdiction to reach the choses in ac- 
 tion of a judgment debtor, in a proper case, by an action in the 
 nature of a creditor's bill. On the same principle, the enlarging 
 the power of the collector, as the office was known at common law, 
 and conferring upon him powers formerly exercised only by a 
 special administrator, cannot prevent the court from still resorting 
 to the appointment of a special administration when that measure 
 becomes essential to protect the rights of parties. 
 
224 OF ADMIKISTRATIOlvr BOND. 
 
 Section V. 
 
 OF THE ADMINISTRATION BOND, AND THE BOND GIVEN BY 
 AN EXECUTOR BY ORDER OF THE COURT. 
 
 We have slready shown that an administrator and collector 
 are both required to give bonds with sureties conditioned for the 
 faithful execution of their trust. The form of those bonds are sub- 
 stantially given in this statute, and have been already stated in 
 this treatise. (3 R. S. 163, 164, 5th ed. 2 R. S. 77.) The bond 
 required of an executor, on the objection of a party interested, that 
 his circumstances are so precarious as not to afford adequate secu- 
 rity for his due administration of the estate, is similar in its form 
 to that required of administrators. (2 R. S. 72, § 20.) It is for 
 the benefit of every person interested in the estate of the testator, 
 and not merely for the benefit of the distributee, upon whose ap- 
 plication the surrogate directs it to be given. {Holmes v. Cock, 
 2 Barb. Ch. 426.) 
 
 The language of the statute is .that every person appointed ad- 
 ministrator shall, before receiving letters, execute a bond to the 
 people with two or more competent sureties. If there be several- 
 administrators, it is not deemed indispensable that each should 
 execute a separate bond with sureties, though such a practice would 
 be legal and a literal compliance with the act. But the provision 
 is satisfied by the executing of a single bond by all the adminis- 
 trators and their sureties. This does not make each administrator 
 a surety for his co-administrator, or liable for any but his own acts, 
 and such joint acts as he participates in. The sureties are liable 
 not only for the defaults of the whole, but for those of each one of 
 the administrators. {Kirly v. Turner, 1 Hopkins, 333.) 
 
 The bond in these cases is something more than a bond of in- 
 demnity. It is a part of the condition that the principal shall obey 
 all orders of the surrogate. This is equivalent to a covenant to 
 pay all judgments that may be recovered against him for a speci- 
 fied cause. {Baggott v. Boulger, 2 Duer, 169.) The action on 
 the bond may be brought in the name of the people, or in the name 
 
EFFECT OF PEOBATE, &o. 225 
 
 of the party for -whose benefit the prosecution is ordered. {Id. 
 Code, 111.) 
 
 -The bond is for the benefit, among others, of the creditors of the 
 deceased. But a creditor, at large, cannot maintain an action on 
 it. He must first procure a decree of the surrogate in his favor, 
 ordering payment of his claim and directing a prosecution of the 
 bond in case the administrator omits to pay it. {People v. Barnes, 
 12 Wend. 492. Sam,e v. Corlis, 1 Sandf. S. C. R. 228.) 
 
 Although by the acts of 1837 and 1844 the decree of a surro- 
 gate may be docketed and thus become a lien upon real estate, still 
 the party having a decree in his favor, may proceed and obtain an 
 order for the prosecution of the bond, without first resorting to the 
 real estate of the administrator. The two proceedings are not in- 
 compatible with each other, and are cumulative remedies. ( The 
 People V. Guild, 4 Deiiio, 552.) 
 
 The omission to file an inventory within the time required by 
 law, cannot be assigned as a breach, unless it is shown that the 
 relator has sustained some injury from the omission. {The Peo- 
 ple v. McDonald, 1 Coweti, 189.) 
 
 By the law of 1851, page 332, all bonds given by an administra- 
 tor or executor which are required to be filed in the surrogate's ofiSce, 
 .must be proved or acknowledged in the manner deeds are required 
 to be proved or acknowledged, before the same shall be filed by the 
 surrogate. (For form of bond, see Appendix, No. 40.) 
 
 CHAPTEE IX. 
 
 OF THE EFFECT OF PROBATE AND LETTERS OF ADMINISTRA- 
 TION AS LONG AS THEY ARE IN FORCE ; OF THE REVOCATION 
 OF THEM, AND OF THE CONSEQUENCES THEREOF. 
 
 Section I. 
 
 Of the effect of probate and letters of administration, as long as 
 they remain unrepealed or unrevoked. 
 
 It has been shown that the surrogate's court is the only court 
 of original jurisdiction in matters testamentary and of administra- 
 tion in this state. It is a court, too, in this respect of exclusive 
 29 
 
226 CONCLUSIVENESS OF PEOBATE. 
 
 jurisdiction. Its decrees, therefore, pronounced in the exercise of 
 this exclusive jurisdiction, are binding on all other courts, and con- 
 clusive evidence of the right directly determined. (1 Phil. Ev. 
 343.) They are not evidence of matters incidentally contested 
 before the court which pronounced them, nor of matters merely in- 
 ferrible from them by argument. (C. 6f HilVs Notes, 858.) With 
 regard to the probate of a will of personal property, the legislature 
 have enacted this principle, and declared that where such probate 
 is taken by a surrogate having jurisdiction, it shall be conclusive 
 evidence of the validity of the will ; until such probate is reversed 
 on appeal, or revoked by the surrogate in the manner pointed out 
 by the , act, or the will is declared void by a competent tribunal. 
 (2 R. S. 61, § 29. Vanderpoel v. Tan Valkenburgh, 2 Seld. 190.) 
 It is in the nature of a proceeding in rem, to which all persons 
 having an interest in the subject of litigation may make themselves 
 parties, and are consequently bound by the decree. [Id. Bogar- 
 dus V. Clark, 4 Paige, 623. Muir v. The Trustees of the Leake 
 and Watts Orphan Asylum, 3 Barb. Ch. 481.) 
 
 The English cases go the length of deciding that such probate 
 is conclusive as to the appointment of an executor, and the validity 
 and contents of the will, and cannot be impeached by evidence 
 even of fraud. {Plume v. Beale, 1 P. Wms. 388. Archer v. 
 Mosse, 2 Vernon, 8.) 
 
 As a consequence from these principles, it has been held not to 
 be allowable to prove that another person was appointed executor, 
 or that the testator was insane, or that the will of which probate 
 had been granted was forged ; for that would be directly contrary 
 to the seal of the court of probate in a matter within its exclusive 
 jurisdiction. {Id. 1 Lev. 235. Allen v. Dundas, 3 T. R. 125. 
 1 Str. 671.) 
 
 The case of Allen v. Dundas, supra, presented the question of 
 payment to a person who had obtained probate as executor of a 
 supposed will of a creditor, whereas the will was a forgery, the 
 probate subsequently revoked, and letters of administration grant- 
 ed to the next of kin of the creditor, who commenced an action for 
 the same debt. The principal ground on which the counsel for the 
 plaintiiF contended that the payment to the executor of the forged 
 will was no defense to an action brought by the rightful adminis- 
 trator was, that the executor derived his whole authority from the 
 
CONCLUSIVENESS OF PROBATE, 227 
 
 •will, the probate being merely evidence of his right, and therefore, 
 it was like the case of a payment under a forged bill, bond, power, 
 «fcc. But it was answered and resolved by the court that the act 
 of granting probate is a judicial and not a mere ministerial act, 
 and that every person is bound by the judicial acts of a court hav 
 ing competent authority ; that this case is diiferent from payment 
 under forged bonds or bills of exchange ; for there the party is to 
 exercise his own judgment, and act at his peril. But in the case 
 of a will the original is not presented to the party paying ; all he 
 can require is the probate, that is, a copy of the will authenticated 
 by the certificate and seal of the court. He has no means, there- 
 fore, of detecting the forgery, in point of fact, and public policy 
 requires that full credit should be given to the probate till it is 
 vacated. 
 
 The same doctrine has been recognized in this country. (In 
 appeal of Peebles, 15 Serg. ^ Rawle, 42.) And additional 
 force is imparted to the justice of the rule in this state, arising 
 from the fact that the authority of the executor to receive payment 
 is derived rather from the court than the will. But the jus- 
 tification of the debtor in paying to the executor of a forged will, 
 depends mainly on the conclusive nature of the probate ; it being 
 evidence not to be disputed, of the existence of the will. 
 ' Although the probate is thus conclusive in evidence, it is not so 
 in pleading, but an executorship, or administratorship may be 
 denied in pleading, by a plea of ne unque executor, or adminis- 
 trator, notwithstanding profert of the probate or letters of admin- 
 istration. This traverse upon issue joined, must be tried by the 
 country ; and upon such trial, the production of the probate, or 
 letters of administration, will be conclusive evidence of the fact. 
 
 Although the will of a married woman made in pursuance of a 
 power must be admitted to probate, in order to confirm judicially 
 its testamentary nature ; yet it is said, the production of such pro- 
 bate is not alone sufficient to induce a court of equity to act upon 
 it • for there are other special circumstances which may be required 
 to give the instrument effect as a valid appointment, viz : attesta- 
 tion sealing, (fcc, with which circumstances the temporal courts 
 have not trusted the judgment of the spiritual courts. The wit-^ 
 nesses, therefore, to these facts, must be examined in chief to 
 prove that the will was the wife's act- And if an attestation ba 
 
228 CONCLUSIVENESS OE PROBATE. 
 
 not required by the power, still her signature must be proved. 
 {Rick V. Cockell, 9 Ves. 376.) This results from the position, 
 that the conclusiveness of the probate is limited to the testamen- 
 tary character of the instrument. 
 
 On this principle it would seem that though the probate of a 
 will of a married woman, under the act of April 11, 1849, 
 (L. p. 528,) would be conclusive as to its testamentary character, 
 it would not be evidence that the personal property she attempted- 
 to bequeath was obtained by her by gift, grant, or bequest from 
 any person other than her husband ; and therefore should a ques- 
 tion arise between her legatee and her husband, after her death, 
 as to her right to bequeath the property in dispute, it must be 
 settled by evidenije, aliunde the probate. This question has not 
 yet been decided, but there are principles settled which have a 
 bearing on it. ( Wadham v. The Am,. Home Miss. Society, 
 2 Kern. 415.) 
 
 The common law jurisdiction of granting probate on wills and 
 testaments did not extend to a devise, and therefore the probate 
 is no evidence of the validity or contents of a will relating to real 
 estate, not even where the original is lost, except as a mere copy. 
 {Bull. N. P. 245.) By the N. Y. revised statutes, we have seen, 
 provision is made for recording wills of real estate, in the surro- 
 gate's court, and making such will, accompanied with the surro- 
 gate's certificate of its being proved and recorded, the record of 
 such will, or the exemplification thereof, evidence without further 
 proof, and as effectual in all cases as the original will would be, if 
 produced and proved. But it is not made, as in the case of a pro- 
 bate of a will of personal estate, conclusive, but the statute leaves 
 it open to be repelled by contrary proof. (2 R. S. 56, § 15.) In 
 the case of a probate it has been held that, in a collateral action, 
 the decree of the surrogate having jurisdiction, declaring the will 
 duly executed, could not be impeached by showing that there was 
 but a single subscribing witness to the will, while the law requires 
 at least two. ( Vanderpoel v. Van Valkenburgh, 2 iSeld. 190.) 
 
 But although the probate of wills, and letters testamentary 
 granted thereon, being the judicial acts of a court having compe- 
 tent authority, cannot be impeached collaterally, yet it «say be 
 proved that the court which granted them had no jurisdiction, 
 
EEVOOATION OI' PROBATE. 229 
 
 and that, therefore, their proceedings are a nullity. Thus, in 
 Marriot v. Harriot, "(1 Str. 671,) it was ruled that evidence 
 might be given that the seal of the court was forged, because that 
 is not in contradiction to the real seal of the court, but admits 
 and avoids it. On the same principle, it was said by Buller, J. 
 in Allen v. Dundas, (3 D. 4" E. 130,) that it might be 
 proved that the supposed testator was alive ; for in such case the 
 «ourt had no jurisdiction. {Appeal of Peebles, 15 Serg. <^ 
 Rawle, 39.) In like manner it is presumed that proof of 
 any of the facts which, if true, oust the court of jurisdiction, 
 may be given. Such proof would render the decree coram nan 
 judice, and void. But matters which merely render it erroneous, 
 and which would authorize the surrogate to revoke it, or subject it 
 to a reversal on appeal, cannot be interposed in a collateral pro- 
 ceeding, to defeat a right claimed under letters testamentary or 
 letters of administration. 
 
 Section II. 
 Of the revocation of probate. 
 
 It has been seen that the statute, while it declares the con* 
 elusive nature of the probate of a will, assumes that it may be 
 revoked by the surrogate of the county where it was proved, and 
 that it may be reversed on appeal, and that the will may be declared 
 void by a competent tribunal. On the happening of either of 
 these events, the probate ceases to be conclusive, or, indeed, to 
 be evidence of the validity of the will. 
 
 There are, therefore, two ways for putting an end to probate as 
 evidence ; 1st, by revocation on a suit by citation before the same 
 court ■; and 2d, by appeal to a higher tribunal. We shall treat, in 
 this section, of the proceedings by citation. 
 
 It has already been stated, that at common law, the executor of 
 a will proved in common form, that is, on the oath of the executor, 
 without citation to the next of kin, might be compelled, by a per- 
 son having an interest, to prove it per testes, in solemn form, at 
 any time within thirty years. The practice in this state prior to 
 the revised statutes in 1830, was to prove the will by the oath of 
 the executor and one or more of the subscribing witnesses, on an 
 
230 CAVEAT. 
 
 ex parte application to the proper court, unless a caveat had been 
 entered in the office of the judge of probate, or surrogate ; in 
 which case the judge or surrogate was required to cite the parties 
 and witnesses to appear before him, and grant probate, letters 
 testamentary or administration agreeably to law. (1 R. L. 446, 
 § 9. Bridgen's Sur. 30, 32. Collier v. Idlefs Ex'rs, 1 Bradf. 
 94. 2 Burn's E. L. 618, quarto ed.) 
 
 A caveat is a mere cautionary act to prevent the court from 
 committing a wrong ; and it was said to be in force for three 
 months, and that while it was pending probate could not be grant- 
 ed. (ToWer, 72, 73. Burn's E. L. title Caveat.) The better 
 opinion is that probate granted in spite of a caveat was not void, 
 but erroneous ; and therefore liable to be recalled or reversed. 
 
 Though the practice of entering caveats in this state is not in 
 terms abolished, yet it has in a measure been superseded since a 
 citation to the proper parties has been required, in all cases pre- 
 vious to admitting a will to probate, and of which we have fully 
 treated in a previous chapter. But as the period between the 
 issuing and return of the citation in these cases is short, and as a 
 personal service is not in all cases required, and as the probate 
 was intended to be conclusive, and the period of thirty years 
 within which persons interested might formerly require the exec- 
 utors to prove the will per testes, was in effect surperseded, it was 
 deemed best by the legislature to substitute a new mode of sub- 
 mitting the will to a re-examination, and to abridge the time within 
 which it could be done. {Collier v. Idley's Ex'rs, 1 Bradf. 94.) 
 Accordingly it is provided, that notwithstanding a will of person- 
 al property may have been admitted to probate, any of the next ot , 
 kin to the testator, may at any time, within one year after such 
 probate, contest the same, or the validity of such will. (2 R. S. 61, 
 § 30.) This power is only given to a next of kin. It is not giv- 
 en to a creditor, nor to a person, not a next of kin, who as a de- 
 scendant of such next of kin might be entitled to a distributive 
 share of the estate in case the deceased had died intestate. 
 
 The relative thus applying, who must be a next of kin, is re- 
 quired for the purpose of the application to file in the office of the 
 surrogate by whom the will was proved, his allegations in writing 
 against the validity of the will, or against the competency of the 
 
ALLEGATION TO REVOKE PROBATE. 231 
 
 proof thereof. {Id. 31.) (See Appendix. No. 30, for form of alle- 
 gation.) 
 
 An allegation is in the nature of a declaration in courts of com- 
 mon law, and it may have one or more artidse, which answer to 
 counts in a declaration. It should contain, in a clear and logical 
 form, a statement of the facts relied upon by the party, against 
 the validity of the will, or against the competency of the proof 
 on which it was admitted to probate, as one or the other is the 
 ground of complaint. 
 
 According to the practice of the prerogative court, the facts 
 intended to be relied upon in support of any contested suit are set 
 forth in a plea, which is termed an allegation ; this is submitted to 
 the inspection of the counsel of the adverse party ; and if it appears 
 to them objectionable, either in form or substance, they oppose 
 the admission of it. If the opposition goes to the substance of 
 the allegation, and is held to be well founded, the court rejects it ; 
 by which mode of proceeding, the suit is terminated without going 
 into any proof of the facts. ( Thorold v. Thorold, 1 Phill. 1, 
 note a.) 
 
 In this state, the proceeding by allegation in a proper case has 
 been countenanced by the court of chancery. ( The Public Ad- 
 ministrator V. Watts, 1 Paige, 34T.) 
 
 The practice, upon filing the allegation is, in this state, pre- 
 scribed by the statute, and differs in some respects from that of the 
 prerogative court. It contemplates that the surrogate shall hear 
 the proofs oi the parties, and that his decisions shall be based upon 
 the proofs. It is enacted, that upon the filing of the allegations, 
 the surrogate shall issue a citation to the executors, who shall 
 have taken upon themselves the execution of the will, or to the 
 administrators with the will annexed, and to all the legatees 
 named in the will, residing in this state, or to their guardian, if 
 any of them be minors, or. to their personal representatives, if 
 any of them be dead, requiring them to appear before him on 
 some day to be therein specified, not less than thirty nor more 
 than sixty days from the date thereof, at his office, to show cause 
 why the probate of such will should not be revoked. (2 R. S. 
 61, § 32.) (Appendix, 31, 32.) 
 
 After the service of the citation, the executors or administrators 
 
232 EEVOKIKG PROBATE. 
 
 are required to suspend all proceedings in relation to the estate 
 of the testator, except the recovery of moneys and the payment 
 of debts, until a decision shall be had on such allegations. 
 {Id. 33.) 
 
 At the time appointed for showing cause, and at such other 
 times thereafter as the surrogate shall appoint, upon due proof 
 being made of the personal service of such citation, upon every 
 person named therein, at least fourteen days before the time ap- 
 pointed for showing cause, the surrogate shall proceed to hear the 
 proofs of the parties. {Id. 34.) These proofs on the part of the 
 complaining party should be confined to the facts set forth in his 
 allegations. If any legatees named in the will shall be minors, 
 and have no guardian, the court is required to appoint guardians 
 for them, to take care of their interests in the controversy. 
 
 If upon hearing the proofs of the parties the surrogate shall de- 
 cide that such will is for any reason invalid, or that it is not 
 sufficiently proved to have been the last will and testament of the 
 testator, he is required to annul and revoke the probate thereof ; 
 if otherwise, he is to confirm it. {Id. § 35.) The judgment of the 
 court must follow the nature of the allegation and the proofs. 
 
 Upon the hearing before the surrogate, the depositions of wit- 
 nesses taken on the first proof of the will, who may be dead, in- 
 sane, or out of the state, may be received in evidence. {Id. § 36.) 
 If the witnesses be alive and in the state, and of sound mind, they 
 must be produced for examination, as in the ordinary case of prov- 
 ing the will. {Collier v. Idley's ExWs, 1 Bradf. 94.) It is in 
 the nature of a new trial. 
 
 The revocation or annulling of such probate is to be entered in 
 the records of the court, properly attested, and notice thereof is 
 required to be served on the executors or administrators, and to 
 be published three weeks in a newspaper published in the county, 
 if there be one, the expense of which is to be taxed as part of the 
 costs of the proceedings. Upon the service on the executor or ad- 
 ministrator, his power or authority ceases, and he is required to 
 account to the representatives of the deceased, whose alleged will 
 was contested, for all moneys and effects received. But he is not 
 liable for any act done in good faith, previous to the service of the 
 citation, nor for apy acts so done in the collection of moneys or 
 
REVOKING PROBATE— COSTS. 233 
 
 payment of debts, after the service of the citation, and previous 
 to the service of the notice of revocation. (§ 38.) 
 
 If the will or probate is confirmed, the costs are to be paid by 
 the party contesting them ; and in case it is revoked, the party 
 resisting may be ordered to pay the costs, either personally or 
 out of the property of the deceased, as the surrogate shall see fit, 
 The payment of costs is in all cases enforced by attachment. 
 (§ 39.) 
 
 If the application before the surrogate be to revoke the probate, 
 on the ground that the proof on which it was granted was insuffi- 
 cient, it would seem, from the language of the 35th section, that if 
 on the hearing before the surrogate the defect is supplied, and the 
 will, therefore, is then sufficiently proved, the probate should be 
 confirmed, without regard to the insufficiency of the original 
 proof. (^Collier v. Idley^s Ex'rs, 1 Bradf. 94.) 
 
 An appeal lies from the decision of the surrogate to the supreme 
 court. (2 R. S. 62, § 35. Id. 66, § 55, as modified by the act of 
 1847, ch. 280, § 17. 3 id. 150, bth ed. Williams v. Fitch, 15 
 Barb. 654. Whitbeck v. Patterson, 22 id. 83. Alston v. Jones, 
 10 Paige, 98.) The mode of conducting the appeal belongs to 
 treatises on the practice of the supreme court, and does not come 
 within the scope of the present treatise. 
 
 The foregoing provisions have not hitherto led to much 
 discussion in the courts, and it is not probable that cases will often 
 arise under them. In the case of Mason v. Jones, (2 Bradf. 325,) 
 it was held that where, upon allegations, it has been finally deter- 
 mined that the will is not sufficiently proved, any of the next of 
 kin, not a party to the contest, may avail himself of the decision, 
 though it was not obtained at his instance. This was put upon 
 the ground that proceedings in respect to probate or administra- 
 tion, are not properly suits or actions, but are special proceedings, 
 of a mixed character, capable of being promoted by any one inter- 
 ested; and, when finally determined, the judgment partakes so 
 far of the character of a judgment in rem, that any other party in 
 interest can avail himself of it. 
 
 There were a variety of grounds for revoking probate, on cita- 
 tion, at common law, besides the invalidity of the will, and the 
 30 
 
234 KEVOKING LETTERS TESTAMENTARY. 
 
 incompetency of the proof on which probate was granted. Thus, 
 fraud or surprise was a sufficient ground, as was also the finding a 
 later will. It is conceived, however, that in the latter case, the 
 proceedings should be by allegation, as pointed out by the statute 
 above ; because, if the later will be established, it proves that the 
 first was invalid at the time probate thereof was granted. 
 
 On principle, it is plain that if the allegation does not contain 
 sufficient facts to entitle the party to the relief sought, the surro- 
 gate may dismiss the complaint, as is done by the prerogative 
 court. It would be a useless waste of time to hear proof of mat- 
 ters immaterial to the question in dispute. (See forms in Ap- 
 pendix, 26 to 34.) 
 
 Section III. 
 
 Of the revoking of letters testamentary, and letters of adminis- 
 tration, and of the effect upon intermediate acts. 
 
 Letters testamentary may be revoked without interfering with 
 the validity of the will, or the probate thereof. Tbe ground for 
 revoking letters testamentary and letters of administration is 
 mainly the same. (1.) With respect to letters testamentary, the 
 statute has provided that if the executor has become incompetent 
 by law to serve as such, or his circumstances are so precarious as 
 not to afford adequate security for his due administration of the 
 estate, or that he has removed, or is about to remove from the 
 state, the surrogate of the county in which the letters were grant- 
 ed shall, on complaint made by a person interested in the estate 
 of the deceased, proceed to inquire into the complaint, (2 R. S. 72, 
 § 18.) For this purpose, on filing the complaint, duly verified by 
 the oath of some person, a citation is to be issued, directed to the 
 person complained of, requiring him to appear before the surrogate 
 at a day and place therein to be specified, to show cause why he 
 should not be superseded. This citation must be served on the 
 party, if in the county, at least six days before its return ; and if 
 he has absconded, it may be served by leaving it at his place of 
 residence. {Id. § 19.) 
 
 Upon due proof of the service of the citation, the surrogate pro- 
 ceeds, at the day appointed, or on such other day as he shall ap- 
 
EEVOKING LETTERS TESTAMENTARY. 235 
 
 point, to hear the proofs and allegations of the parties ; and if it 
 appears that the circumstances of the person so appointed are 
 precarious, as aforesaid, or he is about to remove from this state, the 
 surrogate requires him to give bond, with sureties, like those re- 
 quired by law of administrators, within a reasonable time, not ex- 
 ceeding five days. If he neglects to give the bond, or if it appears 
 that he is legally incompetent to serve as executor, the surrogate 
 is required, by order, to supersede the letters testamentary issued 
 to such person, whose authority and rights as executor shall there- 
 upon cease ; and if there be no acting executor of such will, the 
 surrogate must grant letters of administration with the will an- 
 nexed, of the assets of the deceased left unadministered, accord- 
 ing to law. {Id. § 20.) (See Appendix for forms, No. 26, et seq.) 
 
 An executor may be said to be incompetent, by law, to serve as 
 such, where either of the objections against him exist, which by 
 law would render him incompetent to serve. (3 R. S. 154, § 3, 
 bth ed.) Whatever will justify the court in withholding the ap- 
 pointment, under the above section, if the objection be made with- 
 in the thirty days from the granting of the probate, will authorize 
 the court to supersede the letters testamentary, although granted 
 without objection. 
 
 Some of the foregoing provisions have received a judicial expo- 
 sition. In one case, where it appeared before the surrogate, on an 
 application by legatees for the removal of the executor, that no 
 inventory had been filed by him ; that the executor was squander- 
 ing the estate in useless litigation ; that he had delivered over to 
 his attorney all the money and mortgages of the estate, and was 
 ignorant as to what belonged to the estate ; that he could not read 
 writing or write good English ; and that he had little or no prop- 
 erty, was not in any steady or useful employment, kept no accounts 
 and had no knowledge of the condition or disposition of the trust 
 property, except what was derived from his attorney, it was held 
 by the supreme court of the second district that these facts were 
 sufficient to justify the removal of the executor, on the ground of 
 improvidence and incompetency. {Emerson v. Bowers, 14 Barb. 
 658.) This case was reversed by the Court of Appeals for the 
 reason that the facts disclosed did not show improvidence, and 
 that the application should have been for an order requiring the 
 
236 REVOKING LETTERS OP ADMINISTEATION. 
 
 executor to give security for his faithful performance of the trust, 
 and in default of doing so, a supersedeas should be granted. 
 {/S. C. 4 Kern. 449.) So also, in that case, the failure to file an 
 inventory, if the proper proceedings had been taken, would have 
 led to the same result. The reversal seems to have been on a 
 technical ground, in presenting the case to the surrogate's court. 
 
 (2.) The revocation of letters of administration was supposed, 
 before the statute of 21 Henry 8, to rest in the pleasure of the 
 'ordinary. Since that statute such letters have not been repealed 
 but for some just cause. Chancellor Kent assumes that if letters 
 of administration should have been unduly granted, they may be 
 revoked. (2 Kenfs Com. 413.) 
 
 Although at one time it was supposed that the power of the 
 ordinary, after having made the grant of administration, was ex- 
 hausted, and he could not afterwards revoke it, yet, notwithstand- 
 ing that opinion, it is now agreed in England, that the ordinary 
 may revoke or set aside an administration granted to the next of 
 kin, and that for several causes ; as if they forge or suppress a 
 will ; if they come too hastily to take out administration within 
 the fourteen days ; if they go beyond sea ; become non compos; 
 or if they take out administration without security to account and 
 exhibit inventories ; or, if there be a residuary legatee ; and may 
 in general for any fraud used in obtaining it ; for it would be ab- 
 surd to allow a court jurisdiction herein, and at the same time de- 
 prive them of the liberty of vacating and setting aside an act of 
 their own, which was obtained from them by deceit and- imposition. 
 {Bac. Ahridg. title Ea^rs and Admin. E 12, and the cases col- 
 lected there. 1 Wins. E.v'rs, 479.) 
 
 This subject, like the revocation of letters testamentary is very 
 fully anticipated by the revised statutes. They provide as well 
 for the rights of parties interested in the estate, as for the sureties 
 in the administration bond, who desire to be discharged from future 
 liability ; they contain enactments in relation to letters of admin- 
 istration issued upon false representations, and for the recalling of 
 letters where the administrator has become incompetent by reason 
 of drunkenness, improvidence or want of understanding ; for the case 
 of the marriage of a female administrator ; and for a case where it 
 
REVOKING LETTERS OF ADMINISTRATION. 237 
 
 shall appear that the bond taken on making the grant haa become 
 of inadequate amount ; for the neglect or refusal of a non-resident 
 administrator to account ; for a neglect and refusal to return an 
 inventory, when duly required by the court, and probably for other 
 cases. It is proposed to notice briefly some of these provisions. 
 The practice under them is similar to that on instituting proceed- 
 ings to revoke or supersede letters testamentary. 
 
 If the application be for the insufficiency of the sureties to the 
 administration bond, it must be made by a party interested in the 
 estate. It can be made ■whenenrer it is discovered that the sure- 
 ties of any administrator are becoming- insolvent, that they have 
 removed, or are about to remove, from this state, or that for any other 
 cause they are insufficient. It must be made to the surrogate of 
 the county who granted the letters. (^ R. S. 163, § 47, 5tk ed. 
 i. 0/1887, cA. 460, §25.) 
 
 If satisfied by the evidence that the matter requires investiga- 
 tion, the surrogate issues his citation to such administrator, re- 
 quiring him to appear before the surrogate at a time and place to 
 be therein specified, to show cause why he should not give further 
 sureties. This citation must be served personally on, the adminis- 
 trator, at least six days before the day for its return. If he shall 
 have absconded or cannot be found, it may be served by leaving a 
 copy at his last place of residence. {Id. § 48.) If, on hearing the 
 proofs and allegations of the parties, it should satisfactorily appear 
 that the sureties are for any cause insufficent, the surrogate is re- 
 quired to make an order requiring the administrator to give further 
 sureties in the usual form, within a reasonable time, not exceeding 
 five days. (§ 49.), 
 
 On his neglecting to comply with this order within the time re- 
 quired, the surrogate is directed to revoke the lettei's of adminis- 
 tration issued to such administrator, whose authority as such shall 
 thereupon cease. {Id. § 50.) 
 
 In analogy to the case of an application to remove an executor, 
 the petition of the interested party should state such particulars 
 as to the pecuniary circumstances of the sureties as prima facie to 
 render it probable that the estate is unsafe without further secu- 
 rity. {Colegrove v. Horton, 11 Paige, 261.) 
 
238 EELIEVHsTG SUEETIE8. 
 
 It may sometimes happen that the sureties themselves may de- 
 sire to be released from responsibility, on the account of the future 
 acts and defaults of the administrator. In such a case the surro- 
 gate is to cause the administrator to be cited to show cause why 
 he should not give new sureties. This citation is to be served in 
 the same manner as in the preceding case. If the administrator 
 shall give new sureties, the surrogate may thereupon make an order 
 that the sureties who applied for relief shall not be liable on the 
 bond for any subsequent act, default or misconduct of the admin- 
 istrator. If the administrator neglects to give the new security 
 within the time allowed for that purpose, the surrogate is required 
 by order to revoke the letters of administration, whose authority 
 and rights as an administrator shall thereupon cease. (3 R. S. 
 163, 164, § 51 to 54, 5th ed. L. o/1837, ck. 460, §§ 29, 32.) 
 
 What will be a sufficient ground for the relief of the surety on 
 such an application will depend on the circumstances of each case. 
 There must be some adequate cause, and not a mere ■ capricious 
 change of opinion as to his willingness to be surety. 
 
 The removal of one of several administrators does not impair the 
 authority or duty of the remaining administrator, but on the contrary 
 the whole interest becomes vested in the remaining administrator, 
 who is empowered to continue all suits in his name, which were com- 
 menced before such revocation. If, however, a sole surviving ad- 
 ministrator be removed, the surrogate is to grant administration of 
 the goods, chattels and credits not administered, in the manner pro- 
 vided by law. (3 R. S. 164, § 55, 5tk ed.) 
 
 There, is still another class of cases for the revoking of letters, 
 provided for by the statute, and some of which it is believed ex- 
 isted at common law. Thus, if it is made to appear that the letters 
 of administration have been granted by reason of false representa- 
 tions, made by the p.erson to whom they were granted, and also 
 whenever it shall appear that the administrator has become incompe- 
 tent by law to act as such by reason of drunkenness, improvidence 
 or want.of understanding, the surrogate is clothed with power to 
 revoke the letters. And also in case a female administratrix 
 marries, the surrogate possesses the like power. In all these cases 
 the application to be effectual must be made by a party having an 
 interest. {Id. § 56.) 
 
KEVOKING LETTERS OF ADMINISTRATION. 239 
 
 The marriage of a female sole administrator has the effect to 
 make her husband liable for her acts. At common law, the surro- 
 gate would have no power to remove an administratrix for this 
 cause. It is a power given to him by the statute, and to be exer- 
 cised only on the application of a party interested in the estate. 
 ( Woodruff Y. Cox, 2 Bradf. 153.) 
 
 It has been shown in a former part of this treatise, that before 
 granting letters of administration, the person so appointed shall give 
 a bond to the people of this state, with two sufficient sureties to 
 be approved by the surrogate, in a penalty of not less than twice 
 the value of the personal estate of which the intestate died possess- 
 ed. It may well happen that the surrogate, at the time of taking 
 the bond, has imperfect evidence of the value of the personal 
 estate to be administered, and it is subsequently ascertained that 
 the penalty of the bond is inadequate in amount for the purpose 
 for which it was taken. The statute provides for such a case, and 
 empowers the surrogate to make an order requiring the adminis- 
 trator to give additional security for the faithful performance of his 
 duty, and in case of non-compliance to revoke the letters granted 
 to him. This and the preceding provision relates also to executors 
 who have given security, as well as to guardians. (3 R. iS. 164, 
 § 57, 5th erf.) 
 
 There are cases where an executor or an administrator may be ab- 
 sent from this state, or become a non-resident, and where conse- 
 quently the judgments and process of the court to compel an ac- 
 count would be ineffectual at common law. The statute, however, 
 authorizes such administrators or executors to be cited to account 
 pursuant to law, and if such parties neglect or refuse, without 
 a reasonable cause, to appear in obedience to such citation, the 
 surrogate is authorized to revoke the letters testamentary or of 
 administration, and to grant letters testamentary or of administra- 
 tion of the goods, chattels and effects of the deceased left unad- 
 ministered, to the person entitled thereto (other than such executor 
 or administrator) in the same manner as original letters of admin- 
 istration or letters testamentary, with the like effect as when an 
 executor or administrator has neglected or refused to return an 
 inventory, {Id. 164, § 58, 5th ed.) 
 
 The proceedings against an executor or administrator to compel 
 
240 EFPEOT ON INTERMEDIATE ACTS. 
 
 him to return an inventory, belongs more appropriately to a sub- 
 sequent chapter, where the subject will be treated more at large. 
 At present it is only necessary to say that if an executor or 
 administrator neglects or refuses to return an inventory he may 
 be proceeded against by attachment and commitment to jail until 
 he complies with the order ; and in case the executor or adminis- 
 trator after being committed to jail, neglects for thirty days to 
 make and return the inventory, or in case he cannot be served 
 with a summons by reason of his absence or concealment, the sur- 
 rogate is in either case authorised to issue, under his seal of office, 
 a revocation of the letters testamentary or of administration, 
 reciting therein the cause of such revocation, and to grant letters 
 of administration of the goods, chattels and effects of the deceased 
 unadministered to the person entitled thereto, (other than such 
 executor or administrator) in the same manner as original letters 
 of administration or letters testamentary. 
 
 It may sometimes happen, that after letters of administration 
 have been granted, and the administrator has entered upon the 
 duties of his trust, in good faith, a will of the supposed intestate is 
 discovered and admitted to probate. This affords a good ground 
 of calling in and revoking the letters of administration, (2 R. S. 
 78,) and the question will then arise as to the validity of the acts 
 done by the administrator under his appointment. He may 
 have made sales of personal property and paid debts before he had 
 notice of the will. By the statute such acts, done in good faith, 
 by an administrator acting under an appointment of the court, are 
 to remain valid and not to be impeached on the happening of such 
 a contingency. And the same principle is extended to the sales 
 and other lawful acts done by executors or administrators who 
 may be subsequently removed or superseded, or who may become 
 incapable of acting. (3 R. iS. 165, § 59, 5th ed. Blomier v. 
 Bloomer, 2 Bradf. 339.) 
 
 There was a distinction, at common law, between a grant of ad- 
 ministration which was void, and one which was voidable merely. 
 If administration was granted, as in cases of intestacy, whereas the 
 testator made a will appointing an executor ; or if it be grant- 
 ed by a surrogate having po jurisdiction, the appointment in 
 
REVOOATION OF PEOBATE. 241 
 
 these cases, was a mere nullity. But if the court had jurisdiction, 
 and the party died intestate, but the error consisted in making the 
 grant to one not of kin ; or without citing necessary parties, or to 
 a stranger, or to a creditor before the renunciation of the next of 
 kin ; or the person appointed either was, or became disqualified, 
 the grant was not void but voidable, and might be repealed. 
 (Toller, 121, 122.) The New York statute, it has been seen, 
 sustains the acts in good faith of the administrator, done before 
 notice of the will, though at common law they were void. It 
 places them on the same footing as it does in those cases where the 
 act was merely voidable. But the statute does not extend to 
 a case where the surrogate had no jurisdiction of the subject 
 matter. 
 
 At common law, too, the surrogate could not revoke letters tes- 
 tamentary or letters of administration on account of the omission 
 to bring in an inventory. This we have seen may now be done, 
 and of-this more will be said hereafter. 
 
 Section IV. 
 
 Of the revocation of probate or letters of administration by ap- 
 peal, and of the effect of such revocation on the mesne acts of 
 the executor or administrator. 
 
 In the two preceding sections we considered the question of re- 
 calling probate and superseding letters testamentary and letters 
 of administration, where the same was done by the court by which 
 they were granted. It remains to add a few words on the effect 
 produced by the reversing the decision of the surrogate in grant- 
 ing probate, letters testamentary or letters of administration, by 
 the appellate tribunal. 
 
 While the old court of probate was in existence the appeal from 
 the decision of the surrogate was to that tribunal and thence to the 
 court for the correction of errors. On the abolition of that court, 
 appeals were directed to be made to the court of chancery ; and 
 afterwards in some cases to a circuit judge, and in others to the su- 
 preme court. By the existing law, all appeals which may be taken 
 from the decision of surrogates' courts, either in admitting a will to 
 probate or in refusing to do so, are required to be made to the 
 31 
 
242 REVOCATION; OF PEOBATE. 
 
 supreme court. By the act of 1847, chapter 280, § 17, (.3 R. S. 
 906, 5tk ed.,) appeals are permitted to be made from the orders, 
 decrees and sentences of surrogates, in all cases, to the supreme 
 court. This, of course, embraces appeals from an order granting 
 administration, or revoking letters testamentary or letters of ad- 
 ministration. The statute prescribes the bond which is necessary 
 to be given by the appellant in order to render the appeal effectual, 
 and then enacts that every such appeal, except in certain specified 
 cases, shall suspend all proceedings on the order appealed from, 
 until such appeal be determined, or until the court to which the 
 appeal shall have been made, shall authorize proceedings thereon. 
 (3 R. iS. 906, 5th ed.) 
 
 The intermediate acts of the executor or administrator, pending 
 the appeal after notice, are necessarily void, except in the specified 
 cases. The cases thus excepted from the general rule are 1st,. ap- 
 peals from the order appointing a collector or special administrator 
 of the estate of a deceased person ; 2d, from orders directing the 
 sale of perishable property ; 3d, from orders appointing appraisers 
 of personal property ; 4th, from all orders for the service and pub- 
 lication of notices ; .5th, appeals from orders for the commitment of 
 any executor, administrator or guardian, for not returning an in- 
 ventory, rendering an accoiint or obeying any other order of a sur- 
 rogate. And appeals from such orders for the commitment of any 
 person refusing to obey any subpoena, or to testify when required 
 according to law, shall not stay the execution of such order or pro- 
 cess, unless the party committed shall give bond as directed by law. 
 {Id. 906, 907, 5th ed.) 
 
 In all other cases, the executor or administrator, on receiving 
 notice of appeal, must refrain from doing any act which he is 
 not expressly allowed to perform. But the acts which he may have 
 done, as executor or administrator, prior to the appeal, if done in 
 good faith, in the ordinary course of administration, cannot be 
 rendered invalid or be impeached by the subsequent reversal of 
 the order by which he was appointed. The consequences of the 
 reversal on appeal, with respect to such acts, are the same as if the 
 order had been merely revoked by the surrogate himself. 
 
 The time within which an appeal may be taken to a decree or 
 order of the surrogate court is limited by statute in some cases, to 
 
OF THE INVENTORY. 243 
 
 three months, and In others to thirty days from the day on which 
 the decree was made. (3 R. S. 905, 906, 5th ed.) But there is 
 no like provision limiting the period within which proceedings may 
 be instituted before the surrogate to revoke letters testamentary 
 or of administration. If the affairs of the estate are brought to a 
 close within the period contemplated by law, or indeed at any time, 
 there would be no person having an interest to call on the surro- 
 gate for a removal. Nor would any benefit result to any one from 
 a supersedeas of the letters. But suppose, as sometimes happens, 
 the estate remains for many years in the hands of the executor or 
 administrator, unadministered, surely this delay in closing the set- 
 tlement of the estate, would not deprive the court of the power, in 
 a proper case, to displace the executors or administrators. The 
 argument from delay in making the application to the surrogate 
 for a supersedeas, when the application arises out of the miscon- 
 duct of the parties complained of, is withoujt any force, unless the 
 parties interested in the estate were of full age, and capable of act- 
 ing, and well apprised of the facts on which the motion is founded. 
 
 CHAPTER X. 
 
 OF THE INVENTORY. 
 
 The duty of an executor or administrator to make and return an 
 inventory of the goods and chattels, rights and credits of the de- 
 ceased, can only be enforced in this state by the surrogates' courts. 
 Those courts have, in this state, an original and exclusive jurisdic- 
 tion over the practice in this respect, the consideration of which 
 appropriately belongs to the second part of this treatise. The 
 nature and quality of the estate of an executor or administrator, 
 in the personal effects of the deceased, and the powers and duties 
 of the executor or administrator, with respect to them, do not ex- 
 clusively belong to surrogates' courts, although often the subject 
 of discussion in those courts. Courts of common law and equity 
 jurisdiction are more frequently called upon to consider these 
 rights and duties than surrogates' courts. The jurisdiction of the 
 former is more ample than that of the latter with respect to these 
 
244 ANCIENT PEAOTICE. 
 
 subjects ; though within certain limits their jurisdiction is con- 
 current. For these reasons it has been thought best to postpone, 
 until we come to the third part of this treatise, the consideration 
 of the questions in which all our courts are concerned ; and treat 
 only in this part of those matters which belong in the first instance 
 to surrogates' courts, as courts of exclusive original jurisdiction. 
 
 Section I. 
 Of the ancient practice on the subject of inventories. 
 
 It is difficult to understand, in a correct and scientific manner, 
 the present practice on the subject of making and returning an in- 
 ventory of the personal estate of the deceased, as it is modified by 
 the existing statutes of this state, without possessing a general 
 view of the course anciently pursued in discharging this part of 
 the duties of an executor or administrator. 
 
 An inventory was required to be returned, as a part of the 
 canon law, prior to any statute. (2 Burn^s E. L. quarto ed. 644.) 
 Thus, by a constitution of Othobon, it was ordained, " That the ex- 
 ecutors of testaments, before they shall intermeddle with the ad- 
 ministration of the goods, shall make an inventory in the presence 
 of some credible persons, who shall competently understand the 
 value of the deceased's goods ; and the same shall exhibit unto the 
 ordinary, and if any shall presume to administer, without such in- 
 ventory made, he shall be punished by the discretion of his ordi- 
 nary." 
 
 And by a constitution of Archbishop Stratford, (see Burn, su- 
 pra,) it is ordered as follows : " We do enjoin, that no executor 
 of any testament shall be permitted to administer of his testator's 
 goods, unless he first makes a faithful inventory of the said goods ; 
 the funeral expenses and the expenses about the inventory only 
 excepted. And the same inventory shall be delivered to the ordi- 
 nary at a time to be appointed at his discretion." 
 
 At a subsequent period, but in affirmance of the ecclesiastical 
 law, ( Toller, 247,) the statute, 21 Henry 8, ch. 5, was passed. 
 The 4th section of that statute is as follows : " The executor and 
 executors named by the testator or person deceased, or such 
 other person or persons to whom administration shall be commit- 
 
Ai;rOIENT PRACTICE. 245 
 
 ted, where any person dieth intestate, or by way of intestate, call- 
 ing or taking to him or them such person or persons, two at the 
 least, to whom the person so dying was indebted, or made 
 any legacy ; and upon their refusal or absence, two other honest 
 persons, being next of kin to the person so dying ; and in their 
 default and absence, two other honest persons ; and in their pres- 
 ence, and by their directions, shall make or cause to be made a 
 true and perfect inventory of all the goods, chattels, wares, mer- 
 chandises, as well movable as not movable, whatsoever, that were 
 of said person so deceased, and the same shall cause to be indent- 
 ed ; whereof the one part shall be by the said executor or execu- 
 tors, administrator or administrators, upon his or their oath or 
 oaths, to be taken before the said bishop or ordinary, their oflScials 
 or commissaries, or other persons having power to take probate 
 or testament, to be good and true, delivered into the keeping of 
 the said bishop or ordinary, or other person as aforesaid, and the 
 other part thereof to remain with the said executor or executors, 
 administrator or administrators. A7id no bishop, ordinary, or 
 other whatsoever person, having authority to take probate of tes- 
 taments, on pain in this statute contained, shall refuse to take 
 such inventory, to him presented or tendered, to be delivered as 
 aforesaid." 
 
 This statute was substantially re-enacted in this state in 1787, 
 (1 Greenl. 335, § 11,) substituting judge of probate and surrogate 
 for bishop or ordinary, or other officer, and was continued, without 
 alteration, in the revision of 1801 and 1813, (1 K. 6^ R. 585, 
 § 1. 1 R. L. of 1813, 311, 5 1,) except in the latter statutes, 
 the time within which the inventory was to be exhibited was fixed 
 at six months, and the last sentence in the British act, printed in 
 italics, was omitted in all. 
 
 The old practice of the prerogative court of Canterbury was to 
 require an inventory to be exhibited before probate, or letters of 
 administration granted. (2 Burn's E. L. 644. Phillips v. Big- 
 nell, 1 Phill. 240.) This, however, did not supersede the necessi- 
 ty of another inventory in conformity to the statutes. (Id.) 
 
 The ancient ecclesiastical law was very strict with respect to the 
 making of inventories ; and the consequence of neglecting to make 
 one, seems to have been to prevent the executor or administrator 
 
246 OBJECT OF ESTEKTOBT. 
 
 from relying on want of assets. {Swinb. pt. 3, § 17, pi. 8.) Even 
 the temporal courts formerly considered the neglect of this duty 
 in a li<Tht unfavorable to the party, especially where there was a 
 deficiency of assets ; and although not conclusive on him, yet ex- 
 posing him to imputation. {Or?- v. Kaines, 2 Yes. sen. 193.) 
 
 The object of making an inventory, is to apprise creditors, lega- 
 tees and parties, in distribution, of the condition of the estate. 
 The modern English practice is, therefore, not to exhibit an in- 
 ventory in the first instance. The executor or administrator usu- 
 ally waits tiU he is cited for that purpose in the spiritual court, at 
 the instance of some party interested. {Phillips v. Bignell, sur 
 pra. Toller, 250. In the goods of Williams, 3 Hagg. 217.) 
 It was, however, deemed most prudent, in all cases, for the execu- 
 tor or administrator, in order to exonerate himself, to exhibit it 
 previous to a final settlement. {Kenny \. Jackson, 1 Hagg. 106.) 
 A probable or contingent interest, and, in one case, it was said the 
 appearance of an interest was sufficient to entitle a party to call 
 for an inventory. {Phillips v. Bignell, supra.) In this state, 
 under the former law, in an action on an administration bond, 
 where the plaintiff assigned as a breach the non-return of an in- 
 ventory, and it not appearing that any injury resulted from the 
 omission, the supreme court directed the assignment to be struck 
 out. ( TTie People v. McDonald, 1 Cowen, 189.) 
 
 Where an inventory was made, it was required to contain a full, 
 true and perfect description and estimate of all the chattels, real 
 and personal, in possession and in action, to which the executor or 
 administrator was entitled in that character as distinguished from 
 the heir, the widow, and the donee mortis causa, of the testator or 
 intestate. ( Toller, 24S. 2. Wm^. Ex'rs, 841.) It distinguished 
 such debts as were sperate from those which were doubtful. And 
 it was exhibited under a special oath, the former general oath of 
 the executor or administrator not being deemed sufficient. It 
 contained nothing except what the deceased possessed at his death. 
 The subsequent profits of the business of the deceased were not to 
 be included. {Pitt v. Woodham, 1 Hagg, 247.) 
 
 It was long a contest in the English courts, and may, perhaps, 
 yet be considered undecided, whether the spiritual court acted 
 ministerially or judicially in receiving an inventory. The spirit- 
 
COMMISSION OF APPEAIBEMENT. 247 
 
 ual courts have long claimed the right, and still insist on the 
 power, of entertaining objections to an inventory on the ground of 
 omissions, at the instance of a creditor or legatee. ( Tilford v. 
 Morisoji, 2 Add. 319, 329. {Butler v. Butler, 2 Phill. 37.) This 
 claim is denied by the courts of Westminster Hall, on the ground 
 that the receiving an inventory is a mere ministerial act, and 
 when delivered into court, the ordinary is bound by the statute to 
 receive it, and his power over the subject is exhausted. (5 M. 6f S. 
 406. 3 Burrow, 1922.) The clause in the English statute of 
 Henry 8, which gives rise to this controversy, has never been 
 adopted in this state, and was omitted, it has been seen, in our act 
 of 1787. It is probable, therefore, that prior to the revised stat- 
 utes, the surrogates had power, in a proper case, to compel a fur- 
 ther inventory, or to supply omissions. The revised statutes, it 
 will be seen, in the next section, have provided for the case. 
 
 An inventory exhibited by an executor or administrator has 
 always been considered as evidence of assets. If the debts are 
 not distinguished as desperate or doubtful, they are all presumed 
 to be good, and the onus is cast upon the executor or administra- 
 tor to prove that they could not with reasonable diligence be col- 
 lected. But the inventory has never been held as conclusive 
 evidence either for or against the executor or administrator, either 
 in England or in this state. {Bidl. N. P. 140. Selw. N. P. 712. 
 Willoughby V. McCluer, 2 Wend. 608.) 
 
 Sometimes, it is said, that before granting letters testamentary or 
 of administration, instead of an inventory of the personal prop- 
 erty of the deceased, the court, at the instance of some person 
 having an interest, would issue a commission for the appraisement 
 and true valuation of the goods, rights and credits of the deceased, 
 and an inspection of the obligations, leases, and other writings and 
 papers concerning his personal estate, at his late dwelling house or 
 elsewhere, on certain days and places as should be needful. In 
 such cases there usually issued a monition against the parties hav- 
 ing possession of the said property and documents, that they 
 exhibit and show them to the appraisers so appointed, to the end 
 that they might be appraised and put in an inventory. The com- 
 missioners appointed for this purpose, returned this inventory to 
 the court, under their oath. (2 Burn's E, LaiO, quarto erf. 
 652, 653, 654.) (App. No. 58, 59, 60, 61.) 
 
248 PEESENT PRACTICE— INVENTORY. 
 
 The object of this proceeding was to guide the discretion of the 
 court as to the amount of bail that should be required, when letters 
 came to be granted. It moreover furnished materials for the 
 executors or administrators, after their appointment, of the extent 
 and nature of the estate which they were to administer This did 
 not supersede the necessity for an inventory to be subsequently 
 called for from the executors or administrators. 
 
 Although this proceeding is rarely ever necessary, occasions 
 may arise when a resort to it may be the only means of obtaining > 
 the requisite preliminary knowledge of the estate. 
 
 Section II. 
 
 Of the present practice of making and returning an inventory 
 by the revised statutes, and herein of the appointment of ap- 
 praisers, their power and duties. 
 
 The principal object of an inventory is to exhibit, in a conven- 
 ient form, to all persons interested in the estate of the deceased, 
 that portion of the personal property which is assets in the hands 
 of the executors or administrators, for the payment of debts, and 
 legacies, in distinction from that which is real property and de- 
 scends to the heirs. To accomplish this, such articles of personal 
 property as are exempt by law and which belong to the widow and 
 minor children and are not assets, must be contained in the inven- 
 tory, by themselves, without being appraised as assets. 
 
 The first step towards making an inventory is to procure the 
 appointment of appraisers. The former law required that legatees, 
 creditors or next of kin should be appraisers, and they were selected 
 by the executors or administrators. This was sometimes inconvenient 
 and often led to disputes. The legislature, at the revision in 1830, 
 changed the rule in this respect, and required the surrogate, instead 
 of the executors or administrators, to make the appointment, by an 
 instrument in writing, and restricted his choice to two disinterested 
 persons, and gave them a reasonable compensation to be allowed 
 by the surrogate. (2 R. S. 82. 3 R. S. 168, 5th ed.) This ap- 
 pointment is made upon the application of the executors or admin- 
 istrators, though not upon their nomination. The appraisers are 
 the ofiSicers of the court, and are required before proceeding to the 
 
INVENTORY— APPRAISEES. 249 
 
 execution of their duty to take and subscribe an oath, to be 
 inserted in the inventory made by them, before any officer author- 
 ized to administer oaths, that they ■will truly, honestly, and 
 impartially appraise the personal property, which shall be exhibited 
 to them, according to the best of their knowledge and ability. 
 {Id. § 4. Applegate v. Cameron, 2 Bradf. 119.) (App. 51, 
 52, 53.) 
 
 In making the appointment of appraisers, the surrogate should 
 select men of integrity and judgment, who would not collude with 
 one party or the other, and who would be likely to be impartial. 
 In the country where the parties are all known to the surrogate) 
 or where their characters can be easily ascertained, the appoint- 
 ment is often made in an informal way, on consultation with the 
 executors or administrators, and some of the parties interested in 
 the estate. But in strictness it should be made with as much 
 care as the appointment of referees is made by courts^of record. 
 The order for the appointment is the subject of appeal to the 
 supreme court, if made within thirty days after granting the order. 
 (3 R. S. 906, §§ 25, 28, bth ed.) 
 
 The appraisers are in some measure under the control of the 
 surrogate, and may doubtless be removed by him and others ap- 
 pointed in their place, if there be a reasonable and adequate cause. 
 
 This, though not expressly stated, is fairly inferable from the 
 general jurisdiction of the surrogate over the inventory, and the 
 conduct of the executors and administrators. There is the same 
 authority for the power as there is for that of courts of record over 
 the appointment of referees. It is an incident of every court of 
 original general jurisdiction. Neither a creditor, a legatee or next 
 of kin, though formerly preferred for this purpose, is now eligible 
 to this office. 
 
 The statute we are considering does not announce the principle 
 on which the aippraisal should be made, except that it should be 
 truly, honestly and impartially done. The personal property of 
 deceased persons, in the hands of their representatives, is liable to 
 taxation, after deducting the just debts of the estate. The prin- 
 ciple which guides the assessors will afford a convenient rule for 
 the appraisers. It is that the estate liable to taxation shall be 
 estimated and assessed by the assessors at its full value, as they 
 32 
 
250 INVENTORY— APPRAISEMENT. 
 
 would appraise the same in payment of a just debt due from a 
 solvent debtor. (L. of 1851, ch. 176, § 3. 2, R. S. 911, Uh ed. § 15.) 
 
 The statute evidently contemplates that the executors and ad- 
 ministrators shall within a reasonable time after qualifying, with 
 the aid of the appraisers appointed by the surrogate, make a true 
 and perfect inventory of all the goods, chattels and credits of the 
 testator or intestate, and when the same shall be in different and 
 distant places, two or more such inventories, as shall he necessary. 
 Notice of the time and place of making the appraisal is to be 
 served five days previous thereto on the legatees and next of kin 
 residing in the county where the property shall be ; and it is re- 
 quired also to be posted in three of the most public places of the 
 town. {Id. §§ 3, 4.) What is a reasonable time will depend on 
 the circumstances of each case. As the inventory is required to be 
 returned to the surrogate, and attested by the oath of the executors 
 or administrators within three months from the date of their let- 
 ters, unless the surrogate, for reasonable cause, allows a further 
 time, not exceeding four months, {compare §§ 16 and 19, 3 R. iS. 
 171, 172, 5th ed.;) it is obvious that it should be done as soon as 
 convenience will permit, and that the surrogate in receiving the 
 inventory acts judicially and not ministerially. 
 
 There are several circumstances connected with the taking of 
 the inventory, that require the exercise of a sound and wise dis- 
 cretion of the surrogate. The mode of service of the notice, in 
 case any of the legatees and next of kin are infants, and whether 
 guardians ad litem should be appointed for such, are not particu- 
 larly specified in the act. On general principles it should seem, 
 that guardians ad litem should be appointed for such infants as 
 have no guardians. Every court, it is said, has an incidental 
 power to appoint a guardian ad litem, and in many cases, the 
 general guardian will not be received as of course, without a spe- 
 cial order for the purpose. (3 Kent's Com. 229. Harg. n. 70, 
 and note 220 to lib. 2 Co. Lit.) 
 
 The statute contemplates that the appraisement shall he made in 
 the presence of such of the next of kin, legatees or creditors of the 
 testator or intestate as shall attend. (3 R. S. 169, § 5, bth ed.) 
 Their right to attend presupposes their right to be heard in case 
 
INVEOTORT—EXEMPT ARTICLES. 251 
 
 any question should arise in which they have an interest. There 
 are many quesitons of great importance, which may arise during 
 the performance of this duty. The appraisers are to act upon the 
 property which is exhibited to them. It is their business to set down 
 each article separately, and to fix its value in dollars and cents, 
 and set it down distinctly in figures opposite to the articles re- 
 spectively. {Id. § 5.) 
 
 It is of the greatest importance to all persons interested in the 
 estate, that it should be accurately known what portion of it goes 
 to the heirs as real property, and what to the executors and ad- 
 ministrators as assets for the payment of debts and legacies, to 
 be distributed to the relatives entitled under the statute of dis- 
 tributions. To determine this question it is first necessary to 
 notice the exceptions in favor of the widow and minor children. 
 These excepted articles are to be inserted in the inventory, without 
 appraisal. At common law the widow was entitled to bona para- 
 phernalia, to the exclusion of the executor, but on a deficiency of 
 assets, they were subject to the payment of the husband's debts, 
 except as far as her necessary apparel. Her claim, however, was 
 preferred to a legatee of the husband. (1 Wms. Ex'rs, 646, T. 
 2 Burnts E. L. 649.) It is believed to have been the inten- 
 tion of the legislature to include the para'phernalia in the excep- 
 tion which will now be considered. The statute is as follows, 
 though parts of it were enacted at different times, commencing as 
 early as 1824, and ending in 1842. " Where a man having a 
 family shall die, leaving a widow, or a minor child or children, the 
 following articles shall not be deemed assets, but shall be included 
 and stated in the inventory of the estate, without being appraised. 
 
 1. All spinning wheels, weaving looms and stoves put up and 
 kept for use by his family ; 
 
 2. The family bible, family pictures and school books used by 
 or in the family of such deceased person ; and books not exceed- 
 ing in value fifty dollars, which were kept and used as part of 
 the family library, before the decease of such person ; 
 
 3. All sheep to the number of ten, with their fieeces, and the 
 yarn and cloth manufactured from the same ; one cow ; two swine, 
 and the pork of such swine ; 
 
 4. All necessary wearing apparel, beds, bedsteads and bed- 
 
252 INVENTOBY— EXEMPT AETICLES. 
 
 ding ; necessary cooking utensils ; the clothing of the family ; the 
 clothes of a ividow, and her ornaments proper for her station ; 
 one table, six chairs, six knives and forks, six plates, six teacups 
 and saucers, one sugar dish, one milk pot, one teapot and six spoons. 
 
 The said articles shall remain in the possession of the -widow, if 
 there be one, during the time she shall live with and provide for 
 such minor child or children. When she shall cease to do so, she 
 shall be allowed to retain as her own, her wearing apparel, her 
 ornaments and one bed, bedstead and the bedding for the same ; 
 and the other articles so exempted shall then belong to such 
 minor child or children. If ther^ be a widow and no such minor 
 child, then the said articles shall belong to such widow. 
 
 When a man having a family shall die leaving a widow or minor 
 child or children, these shall be inventoried by the appraisers and 
 set apart for the use of such widow and child or children, or 
 for the use of such child or children, in the manner above provided, 
 necessary household furniture, provisions, or other personal prop- 
 erty, in the discretion of said appraisers, to the value of not ex- 
 ceeding one hundred and fifty dollars, in addition to the articles of 
 personal property now exempt from appraisal, by the foregoing 
 section." (3 R. S. 170, §§ 9, 11, 5ih ed.) 
 
 The reason for inserting the exempted articles in the inventory 
 is to afford documentary evidence of the proper disposition of the 
 estate, and of the title of the parties to whom those articles belong. 
 The property thus set apart without appraisal is not subject to 
 taxation against the estate of the deceased. 
 
 The provisions of the foregoing statute are not limited to cases 
 where the deceased was a resident of this state. Thus, where the 
 intestate died on his way to this country, leaving a widow and 
 minor children in Germany, and the assets left on board the vessel 
 came into the hands of the public administrator, nothing having 
 been set apart in the inventory for the widow and children, it was 
 held by the surrogate of New York, that the inventory should be 
 reformed in that respect. {Kapp v. The Public Administrator, 
 2 Bradf. 258.) 
 
 Nor is it material whether the widow is the actual mother of the 
 minor children ; if she be the stepmother, and she is able and 
 willing to keep up the family circle and provide suitably for the 
 
DISCRETION OF APPRAISERS. 253 
 
 minor children, she is entitled to hold the exempt articles ; and 
 the minor children who leave her, contrary to her ivishes, and 
 without any fault on her part, are not entitled to take those 
 articles from her. {Scofield v. Scofield, 6 Hill, 642.) 
 
 The claim of the widow under the exemption laws, does not de- 
 pend on the question whether she be the mother of children or not, 
 or whether her deceased husband left children, which formed a 
 part of the family, at his decease. A man who has a wife and 
 other relatives residing with him at the time of his death, besides 
 servants, although without children, leaves a family within the 
 meaning of the act. {Kain v. Fisher, 2 Seld. 697.) 
 
 Nor have the appraisers, under the act of 1842, which is the last 
 section cited from the revised statutes, a discretion to withhold 
 setting apart the furniture and provisions to the value of one 
 hundred and fifty dollars, if there be that amount in value belonging 
 to the estate. As they have no right to deal unjustly to the other 
 parties interested in the estate, such as creditors, legatees or next 
 of kin, by setting apart for the widow, or minor children, articles 
 exceeding in value the one hundred and fifty dollars, so they are 
 not warranted in refusing altogether to set apart any thing. Their 
 appraisement is not conclusive, but may be reviewed, examined and 
 corrected, whether the error be in favor of the widow or against 
 her. (Applegate v. Cameron, 2 Bradf. 119. Sheldon v. Bliss, 
 4 Seld. 31.) The discretion of the appraisers is not an arbitrary 
 but ?i judicial discretion. It has reference mainly to the articles 
 to be inventoried and set apart to the widow, and can never be 
 referable to the amount when the personal property left by the 
 deceased, exceeds in value one hundred and fifty dollars. {Id.) 
 If there be various articles of the same kind belonging to the 
 estate, the appraisers have a discretion, which to set apart, not 
 exceeding the specified value. Or they may, it is conceived, if 
 the condition of the estate will warrant it, set oif to her the one 
 hundred and fifty dollars in money, in lieu of those articles, or a 
 portion in furniture or other articles, and the residue in money. 
 {JDayton^s Surrogate, 250.) The discretion of the appraisers may 
 be controlled by the surrogate, if it has been unreasonably exercised. 
 
 The widow and" minor children have by the death of the testator 
 or intestate, a mere naked right to the exempt articles. The legal 
 
254 EXEMPT ARTICLES. 
 
 title vests in the personal representatives, by relation, from tte 
 time of the death of their former owner. Hence, before the 
 articles are set apart by the ' appraisers, the legal title is in the 
 executors or administrators, and no action will lie at the suit of the 
 widow against the executors or administrators for taking posses- 
 sion of them. .{Voelckner y. Hudson, 1 Sand. S. C. R. 215.) 
 The executors or administrators are bound to take possession of 
 the personal estate, and the appraisers can only inventory such 
 as is exhibited to them by those parties. (2 R. S. 8, § 82.) 
 When the exempted articles are set apart in the inventory by the 
 appraisers, what was before a mere right ripens into a perfect 
 title, and whoever subsequently interferes with the property with- 
 out the consent of the owner becomes a trespasser. 
 
 It is not usual for the executors or administrators to dispossess 
 the widow and family of these exempt articles antecedent to taking 
 the inventory. They are usually left with the family till the in- 
 ventory is taken. It is not perceived that the executors or ad- 
 ministrators incur any risk in doing so. 
 
 If the executors refuse to set ofif to the widow the articles ex- 
 empt under the statute, and convert into money the articles con- 
 tained in the inventory, the surrogate has the power to order them 
 to pay the widow a sum of money in lieu of what she was entitled 
 to receive under the exemption laws. {Blissr. Sheldon, 1 Barb. 152, 
 affirmed, 4 Seld. 31.) The power conferred upon the surrogate 
 by the revised statutes, (2 R. S- 154, subd. 3,) to direct and control 
 the conduct, and settle the accounts of executors and administra- 
 tors, is deemed ample authority for that officer to interfere in 
 that manner. The court of appeals held in the last mentioned case, 
 that the proceeds of the sale in the hands of the executors, consti- 
 tuted a trust in favor of the widow, to the extent of her interest in 
 or claim upon the property of the testator under the statute. 
 She might, said Judge Gardiner, affirm the sale, and it would be 
 the duty of the executors, as trustees, to pay over the avails to the 
 legal and equitable proprietor. If they refused, the surrogate in 
 virtue of his power to control their conduct, " and to administer 
 justice, in all matters relating to the affairs of deceased persons," 
 could compel their obedience. 
 
EXEMPT ARTICLES— ELEOTION. 255 
 
 It has sometimes been claimed, on the part of the executors, 
 that the widow is barred of her right to the exempt articles in 
 consequence of a marriage settlement, or some pecuniary provis- 
 ion in the will of the testator. On this subject it is well settled 
 that a provision in the will of a husband in favor of the wife, will 
 never be construed by implication to be in lieu of dower, or any 
 other: interest in his estate given by law. The design to substi- 
 tute one for the other must be unequivocally expressed. {Sheldon 
 V. Bliss, 4 Seld. 35.) 
 
 The right to the exempt articles, like a right to dower in the 
 real estate of the husband, is a legal right, and the wife cannot be 
 deprived of it by a testamentary provision in her favor. Nor can 
 she be put to her election between her statute right and a legacy, 
 unless the latter was evidently intended by the testator to be a bar 
 to the former, and that intention is announced in express terms 
 or by necessary implication. ( Willard's Equity Juris. 546 to 
 552, where the cases on election are collected.) Thus, should the 
 testator bequeath to his wife a bed, or a cow, it would not deprive 
 her of the bed or the cow to which she is entitled by law. If 
 there were cows and beds enough, she would take as well under 
 the will as the statute. In case of a deficiency of assets to pay 
 debts, her legacy must yield to the claims of creditors, but her ti- 
 tle, under the statute, is paramount to such a claim. In this, as 
 well as some other respects, thfe exemption is more favorable to 
 the widow than the common law was to her right to bona para- 
 phtrnalia, which we have seen in some cases, and to some extent, 
 yielded to the demands of her husband's creditors. 
 
 The humane provisions in favor of the widow and minor chil- 
 dren of a deceased householder, were first introduced into our stat- 
 ute law in 1824, {L. of 1824, p. 32, ch. 44,) and were enlarged 
 and improved at the revision of 1830. (2 R. S. 83.) They were 
 again expanded in 1842, so as to embrace the additional one 
 hundred and fifty dollars. {See L. of 1842, ch. 157, § 2.) Prior 
 to 1824, there was no exemption in favor of the widow, unless her 
 paraphernalia be so considered. The exemption of certain arti- 
 cles from sale on execution, and from distress for rent, was made 
 a few years earlier, but all within the present century. 
 
 The exemption in favor of the widow and minor children is a 
 
256 EXEMPT ARTICLES. 
 
 politic as well as benevolent arrangement to provide, as far as 
 practicable, for keeping up the family state during the minority 
 of the children of a deceased father. That state tends in many 
 ■ways to promote the happiness of the children, and fit them to be- 
 come useful members of society. The care and counsels of a 
 mother should not be lightly esteemed, either by her offspring or 
 by those who enact the laws. (Per Branson, J. in Scofield v. 
 Scqfield. siipra.) Similar provisions exist in most of the states. 
 The wisdom of weakening the extreme grasp of the creditor, has 
 been felt in all ages, and is recognized in the Mosaic economy. 
 {Deuteronomy 24, v. 6.) Public policy does not require that the 
 articles in question should be yielded to the claims of creditors. 
 iSTo just man ever trusted another, upon the strength of any sup- 
 posed right of stripping his widow and children, after his death, 
 of the few articles necessary for family comfort and convenience. 
 
 With regard to the final disposition of the exempt articles, the 
 statute is explicit. The articles are not deemed assets. They 
 are not, therefore, liable to the claims of the creditors of the de- 
 ceased. If there be no minor child or children, they then belong 
 to the widow alone, and are subject to her disposition. {Kain v. 
 Fisher, 2 Seld. 597. 3 R. S. 170, bth ed.) 
 
 If there be one or more minor children, in that case all the ar- 
 ticles are to remain in the possession of the widow during the 
 time she shall live with and provide for such minor child or chil- 
 dren. When she ceases to do so, she is allowed to retain, as her 
 own, her wearing apparel, her ornaments, and one bed, bedstead, 
 and the bedding for the same ; and the other articles, so exempted, 
 then belong to the minor child or children. It is obvious that 
 there are many ways in which the widow may cease to live with 
 and provide for the minor child or children. She may refuse ab- 
 solutely to perform this condition, or, agreeing to perform it, she 
 may so conduct herself towards the children that it would be un- 
 safe or itnproper for them to live with her. In either, of these 
 cases, there can be no reasonable doubt that she would forfeit the 
 provision. (Scofield v. Scofeld, supra.) She may be wUling 
 to reside with the children and make ample and suitable provision 
 for their support, and the children refuse to live with her, and go 
 elsewhere to reside without fault on her part. In such a case the 
 
EXEMPT ARTICLES. 257 
 
 supreme court thought she was still entitled to retain the arti- 
 cles. {Id.) 
 
 But suppose the minor child dies while living with and support- 
 ed by the widow, the question then will arise whether those articles 
 should belong to the widow, or the personal representative of the 
 minor, who may be a different person from the widow, if she was the 
 stepmother. The answer to this question turns upon the inquiry, 
 whether the contingency of there being no minor child has refer- 
 ence to the time of the death of the testator or intestate, or is in- 
 definite in its application. In the latter case, the articles would 
 belong to the widow. 
 
 The statute does not state what becomes of the articles, where 
 the minors having lived with and been supported by the widow, 
 during their minority, become of age and voluntarily leave her, 
 without fault on her part. The contingency when they shall be- 
 long to the minor child or children happens only when, during 
 their minority, they cease, without their own fault, from being 
 members of her family. Though this question has not yet been 
 decided to my knowledge, and it therefore becomes us to antici- 
 pate, with diffidence, the ultimate judgment of the courts upon 
 it, it is nevertheless believed that if the widow still continues to 
 keep house after the minors become of age, and has not forfeited 
 her right by previous misconduct, she is still entitled to the pos- 
 session of the property. It is not probable that the legislature 
 intended to break up the family when the children became of age. 
 {See Scofield v. Scofield, supra.) Although the title of the 
 widow is a defeasible one, it is inferrible from what was said by 
 the court in the last mentioned case, that it can only be defeated 
 by some wrongful act on her part. 
 
 On the death of the widow, or the minor children during their 
 minority or afterwards, the exempt articles do not fall back into 
 the estate of the deceased husband, but go to the personal repre- 
 sentatives of their last owner. (For forms in taking the inventory, 
 see Appendix, 55, 56.) 
 
 Having thus noticed, sufficiently at large, the subject of the 
 exempt articles, and which it will be remembered are not assets of 
 the deceased husband, but are to be included and stated in the 
 
 33 
 
258 INVENTORY— FIXTUKES. 
 
 inventory of the estate, without being appraised, we proceed to 
 notice the further steps to be taken by the executors or admin- 
 istrators, and the appraisers. At the time and place appointed 
 in the notice, and it ^s presumed at such subsquent times and 
 places as shall be appointed by adjournment, ^the appraisers, in 
 the presence of such of the next of kin, legatees or creditors of 
 the testator or intestate as shall attend, proceed to estimate and 
 appraise the property which shall be exhibited to them, by the 
 executors or administrators, or under their direction, and are re- 
 quired to set down each article separately, with the value thereof 
 in dollars and cents, distinctly in figures, opposite to the articles 
 respectively. (2 R. iS. 82, § 5. BR. S. 169, 5th ed.) 
 
 The requirement that each article must be separately stated and 
 appraised, must have a reasonable interpretation. Such articles 
 as are usually kept together, and where there is a conventional 
 unity of several things of the same sort, should be stated together. 
 Thus, a yoke of oxen, a span of horses, for example, when matched 
 and generally kept together, the several volumes of the same 
 work, and the like; should be appraised in the same way in which 
 they were treated in the family of the deceased. The law does 
 not require the breaking up of such conventional arrangements. 
 Though, in the sale of these articles, the executors and administra- 
 tors must consult the interest of the estate, and are not forbidden 
 to separate matched horses or oxen, if the sale of each separately 
 will be most advantageous to the estate. 
 
 Previous to the adoption of the revised statutes in 1830, there 
 was some uncertainty in the law, and a fluctuation in the decisions 
 as to the relative rights of the executors or administrators, on the 
 one hand, and the heirs at law on the other,,with respect to annex- 
 ations to the freehold. There was supposed to be a distinction, 
 in relation to what belonged to the realty, as between landlord 
 and tenant, and as between the heir at law and the personal rep- 
 resentative. It was also supposed that the outgoing tenant might 
 be permitted to remove fixtures of a particular description, placed 
 by him upon the premises for a special purpose, which as between 
 the heirs at law and the personal representatives of the owner of 
 the freehold would have descended to the heirs. {House v. House, 
 10 Paige, 163.) 
 
INVENTORY— FIXTURES. 259 
 
 The legislature intended to put the executor or administrator 
 upon the same footing with a tenant as to the rights to fixtures. 
 And they intended to settle some other questions, and give more 
 symmetry to the law. They, therefore, enacted certain legal prop- 
 ositions, derived from the decisions of the courts and the elementa- 
 ry writers, which it was supposed would remove all disputes for 
 the future. {See Revisers' notes, 3 R. iS. 638, 639, 2d ed.) These 
 propositions as enacted, assumed the following form : 
 
 " The following property, it was enacted, be shall deemed assets, 
 and shall go to the executors or administrators, to be applied and 
 distributed as part of the personal estate of their testator or intes- 
 tate, and shall be included in the inventory thereof. 
 
 1. Leases for years ; lands held by the deceased from year to 
 year ; and estates held by him for the life of another person ; 
 
 2. The interest which may remain in the deceased at the time 
 of his death, in a term for years, after the expiration of any estate 
 for years therein, granted by him or any other person ; 
 
 3. The interest in lands devised to an executor for a term of 
 years, for the payment of debts ; 
 
 4. Things annexed to the freehold, or to any building, for the 
 purpose of trade or manufacture, and not fixed into the wall of a 
 house so as to be essential to its support ; 
 
 5. The crops growing on the land of the deceased at the time of 
 his death ; 
 
 6. Every kind of produce raised annually by labor and cultiva- 
 tion, excepting grass growing and fruit not gathered ; 
 
 7. Rent reserved to the deceased, which had accrued at the 
 time of his death ; 
 
 8. Debts secured by mortgages, bonds, notes or bills ; accounts, 
 money and bank bills, or other circulating medium, things in action 
 and stock in any company, whether incorporated or not ; 
 
 9. Goods, wares, merchandise, utensils, furniture, cattle, pro- 
 visions, and every other species of personal property and effects, 
 not hereafter excepted." {See 2 R. S. 82, § 6.) 
 
 Having thus enacted what are assets, it proceeded to declare, 
 in general terms, what are not. Thus, § 7 : Things annexed to 
 the freehold or to any. building, shall not go to the executor, but 
 shall descend with the freehold to the heirs or devisees, except 
 
260 IN VENTOEY— FIXTURES. 
 
 sucii fixtures as are mentioned in the fourth subdivision of the 
 last section. And, by way of greater caution, they added § 8 : 
 The right of an heir to any property, not enumerated in the pre- 
 ceding sixth section, which, by the common law would descend to 
 him, shall not be impaired by the general terms of that section. 
 
 Although the foregoing specifications were drawn by learned 
 men, with great care, yet it has already been found that numerous 
 questions arise calling for judicial construction, and an occasional 
 resort to the old authorities for illustration is found to be necessa- 
 ry. It is impossible, from the imperfection of human language, 
 and the constant fluctuation in the affairs of an active and enlight- 
 ened community, to anticipate every difficulty, and to guard 
 against it. 
 
 In House v. House, (10 Paige, 162, 164,) the administrators 
 claimed the mill stones, bolts and other machinery in a flouring 
 mill, as personal estate, under the 4th subdivision above specified, 
 considering them as not essential to the support of the walls of the 
 mill. By an extremely literal construction of the act, it would be 
 difficult to resist the claim upon that ground, and, perhaps, differ- 
 ent courts might arrive at different conclusions on the subject. 
 But it was held, and probably rightly, that fixtures of this char- 
 acter are not only convenient but essential to the proper enjoy- 
 ment of the inheritance ; and are, therefore, as much a part of the 
 freehold as the building and water power, which, with them, con- 
 stitute the mill. The owner of a pew in a church may, and often 
 does, have a lease of it, in which he is bound to pay certain rent, 
 and, perhaps, other assessments. The question has arisen whether 
 the interest in the pew goes to the executors or administrators, or 
 descends as real estate to the heirs at law. The peculiar quality 
 of that species of property has often been the subject of investiga- 
 tion in our courts, and the weight of argument, as well as author- 
 ity, seems to be in favor of considering the right to the pew as a 
 right indeterminate as to its duration, and springing out of the 
 land, and so belonging to the heir rather than the personal repre- 
 sentatives. {Matter of Havens, 4 Bradf. 7, where the cases are 
 collected and reviewed.) 
 
 Grass growing, and fruit not gathered, at the death of the tes- 
 tator, go to the heir and not the personal representatives. This 
 
INYENTOET— KELEASE OF DEBTS. 261 
 
 is made an exception to the general proposition, that the growing 
 crops belong to the personalty. [Kain v. Fisher, 2 Seld. 597.) 
 
 The statute contains soine practical directions with respect to 
 the manner of stating the assets. Thus, it is required that the 
 inventory shall contain a particular statement of all bonds, mort- 
 gages, notes and other securities for the payment of money be- 
 longing to the deceased, which are known to the executor or ad- 
 ministrator, specifying the name of the debtor in each security ; 
 the date ; the sum originally payable ; the indorsements thereon, 
 if any, with the dates ; and the sum which, in the judgment of 
 the appraisers, may be collectable on each security. (2 R. S. 
 84, § 11.) This is a substitute for the requirement at common 
 law, to distinguish debts which are sperate from those which are 
 doubtful or desperate. ( Toller, 248.) The inventory must also 
 contain an account of all money, whether in specie or bank bills, 
 or other circulating medium belonging to the deceased, which shall 
 have come to the hands of the executor or administrator ; and if 
 none shall have come to his hands, that fact must be so stated in 
 the inventory. (2 R. iS. 84, § 12.) 
 
 Formerly the appointment of the testator's debtor as an execu- 
 tor operated as a release of the debt. {MarvinY. Stone, 2 Cowen, 
 809. Gardner v. Miller, 19 John. 188.) The discharge was im- 
 plied from the act of appointment. This rule is now abrogated. 
 The claim which the testator had against the executor, must be 
 included among the credits and effects of the deceased, in the in- 
 ventory, and the executor is made liable for the same, as for so 
 much money in his hands, at the time such debt or demand be- 
 comes due ; and he is required to distribute the same in the pay- 
 ment of debts and legacies, and amongst the next of kin, as part of 
 the personal estate of the deceased. (^Id. § 13.) 
 
 But the foregoing section does not apply to an express discharge 
 by the testator of any debt or demand which he may have against 
 the executor or any other person. At common law, it was compe- 
 tent for the testator to discharge such claim by an express provis- 
 ion in his will. This has been changed by the revised statutes, 
 and it is enacted that such discharge shall not be valid as against 
 the creditors of the deceased ; but shall be construed only as a 
 specific bequest of such debt or demand ; and the amount thereof 
 
262 INVENTORY— OATH TO SAME. 
 
 is required to be included in the inventory of the credits and 
 effects of the deceased, and shall, if necessary, be applied to the 
 payment of his debts ; and if necessary for that purpose, shall, be 
 paid in the same manner and proportion as other specific legacies. 
 {Id. § 14.) The legislature thus adopted as a general rule of law, 
 a principle which equity had always struggled hard to enforce. {See 
 Gardner v. Miller, supra, and Marvin v. Stone, supra.) 
 
 Upon the completion of the inventory, duplicates of it must be 
 made and signed by the appraisers, one of which is to be retained 
 by the executors or administrators, and the other returned to the 
 surrogate, within three months from the date of the letters testa- 
 mentary or of administration. The surrogate can, for a reasonable 
 cause, extend the time for returning an inventory, not exceeding 
 four months. The statute requiring an inventory to be returned 
 within a limited time, being directory merely, an inventory made 
 after the expiration of the time, is equally valid, and should be 
 received, on being returned to the surrogate. 
 
 Upon returning the inventory, the executors or administrators 
 are required to take and subscribe an oath, before the surrogate ; 
 or, if he be absent from the county, or incapable from sickness, or 
 otherwise, of transacting business, or his oflSce be vacant, then be- 
 fore a judge of the county court of such county ; stating that such 
 inventory is in all respects just and true ; that it contains a true 
 statement of all the personal property of the deceased which has 
 come to the knowledge of the executor or administrator, and par- 
 ticularly of all money, bank bills, and other circulating medium be- 
 longing to the deceased, and of all just claims of the deceased against 
 such executor or administrator according to the best of his knowl- 
 edge. (2 R. S. 85.) This oath must be indorsed upon or annexed 
 to the inventory, and the latter must be filed by the surrogate and 
 preserved among the papers of his office. By a subsequent law, 
 the oath of office of executors and administrators, and the oath of 
 the appraisers, administrators and executors, in relation to the in- 
 ventory, are permitted to be administered by the surrogate, or by 
 any commissioner of deeds, or judge of the county courts. {L. of 
 1837, ch. 460, i 59. 3 R. S. 171, § 18.) For form of oath, see 
 Appendix, No. 57.) 
 
COMPELLING EETURN OF INVENTORY. 263 
 
 Section III. 
 
 Of the method of compelling a return of an inventory when the 
 executor or adm,inistrator omits that duty, and herein of com- 
 pelling a further inventory. 
 
 In general it is a fair presumption that executors and admin- 
 istrators will discharge the duty imposed upon them by law, of 
 taking and returning an inventory. They will be led to do it as 
 well from a regard to their own safety, as from their respect to the 
 injunctions of law. It was, however, foreseen that occasions might 
 arise, when this duty might be neglected. It is accordingly pro- 
 vided that if an executor or administrator shall neglect or refuse 
 to return an inventory, within the time allowed for that purpose, 
 the surrogate shall issue a summons requiring him at a short day, 
 therein to be appointed, to appear before him and return an inven- 
 tory according to law, or show cause why an attachment should 
 not be issued against him. (2 R. S. 85, § 17.) 
 
 From the imperative language of the section it would seem that 
 the surrogate can issue this summons on his own motion, without 
 an application from a party having an interest in the estate. It 
 is said by Sir John Nicholl in Phillips v. Vignel, (1 Phill. 240,) 
 that the prerogative court may, and in some instances does, for 
 the protection and security of thfe parties interested, require, ex 
 officio, an inventory to be exhibited ; and although the court does 
 not exact this, in all cases, still it always will, when the party 
 having an interest in the property applies for it. In Thomson v- 
 Thomson, (1 Bradf. 24,) the surrogate of the city and county of 
 New York held to the same doctrine. Although admitting his 
 power, on his own motion, to enforce the return of an inventory, 
 after threes months from the issue of letters, he admitted that it 
 was not usual to do so, unless at the intervention of a party in 
 interest. 
 
 The time limited for the return of such summons, and the 
 number of days service, previous to its return, are left to the dis- 
 cretion of the surrogate. The time between the service and the 
 return should be sufficiently long to enable the executors or ad- 
 
264 COMPELLING RETURN OF INVENTORY. 
 
 minis trators to give the requisite notices and to take the inventory. 
 Like other process, the attachment must be founded upon an order, 
 entered in the minute book ; be issued under the seal of the court ; 
 and be tested in the name of the officer by whom it is issued. 
 (2 B. S. 222.) The attachment may be issued to any county in 
 the state, and may be executed in any other county, as well as 
 that where the surrogate resides. {The People v. Pelham, 
 14 Wend. 48.) 
 
 Although the 18th section provides that the surrogate shall 
 issue an attachment against the executor or administrator, if after 
 personal service of such summons he shall not, by the day appoint- 
 ed, return the inventory on oath, or obtain further time to return 
 the same, and commit him to the common jail of the county, there 
 to remain until he shall return the said inventory, it is still obvious 
 that the defaulting executor or administrator is entitled to show 
 cause against such order. He may show that the party on whose 
 motion the attachment is issued has no interest in the estate, either 
 as creditor, legatee or next of kin. If the estate has been settled 
 to the satisfaction of the parties interested in it, the court will not 
 order an inventory to gratify the idle curiosity of any body. So 
 lapse of time sufficient to raise the presumption that the estate 
 has been fully administered will be a sufficient answer to the ap- 
 plication. {Thomson v. Thomson, 1 Bradf. 24. Bowles v. 
 Harvey, 4 Hagg. 241. Higgins v. Higgins, 4 id. 242.) 
 
 If the defaulting executor or administrator fails to show any 
 cause, or sufficient cause to the contrary, the alternative in the at- 
 tachment requires him to be committed to the common jail of the 
 county, there to remain until he shall return such inventory. 
 (2 R. S. 85.) A party thus committed is not entitled to the liberty 
 of the yard, but must be kept in close custody. He is, however, 
 entitled to be discharged by the surrogate or a justice of the su- 
 preme court on his delivering upon oath, all the property, of the 
 deceased under his control, to such person as shall be authorized 
 by the surrogate to receive it. (3 R. S. 172, § 24, 5th ed.) 
 
 Should it happen that the summons cannot be served personally 
 by reason of the executor or administrator absconding or concealing 
 himself, or if after being committed to prison, the executor or admin- 
 istrator shall neglect for thirty days to make and return such inven- 
 
COMPELLrNG EETUEN OF INVENTORY. 265 
 
 tory, the surrogate is then authorized to issue, under his seal of 
 oflBce, a revocation of the letters testamentary or letters of admin- 
 istration, before granted, reciting therein the cause of such revoca- 
 tion, and to grant letters of administration of the goods, chattels 
 and effects of the deceased, unadministered, to the person entitled 
 thereto (other than such executor or administrator) in the same 
 manner as original letters of administration or letters testamen- 
 tary. (2 R. iS. 85, § 19.) The effect of this grant will be to 
 supersede all former letters, and to deprive the former executor or 
 administrator of all power, authority and control over the personal 
 estate of the deceased, and entitle the person so appointed to take, 
 demand and receive the goods and effects of the deceased, wherever 
 the same may be found. {Id. § 20.) 
 
 The effect of the foregoing enactments is that within the first 
 thirty days after the commitment of the executor or administrator, 
 the defaulting party, on making and returning an inventory, will 
 be entitled to a discharge. If he fails to do so within the thirty 
 days he can no longer do so, but is liable to be superseded, and 
 can then be discharged only on delivering up upon oath the prop- 
 erty of the deceased under his control, to the person authorized 
 by the surrogate to receive it. His person cannot be held for the 
 costs ; but it is believed these may be obtained by the decree of 
 the surrogate, as in other cases of contest, or by an action upon 
 the administration bond. 
 
 The failing to return the inventory as required may have oc- 
 casioned an injury to the estate of the deceased ; the estate may 
 also have sustained injuries by reason of the acts and omissions of 
 the executor or administrator, and by reason of his maladminis- 
 tration. To provide for these contingencies, it is enacted that in 
 every such case of revocation, and whenever directed by the sur- 
 rogate, the bond given by the former executor or administrator 
 shall be prosecuted, and the money collected thereon be deemed 
 assets in the hands of the person to whom such subsequent letters 
 shall have been issued. {Id. § 21.) 
 
 The duty of making and returning an inventory is deemed of so 
 much importance that any one or more of the executors or admin- 
 istrators, on the neglect of the others may return it ; and those 
 neglecting, are forbidden thereafter to interfere with the adminis- 
 
 34 
 
266 FUETHEE INVENTOET. 
 
 tration, or have any power over the personal estate of the deceased; 
 but the one so returning an inventory has the whole administra- 
 tion, until the delinquent returns and verifies an inventory accord- 
 ing to law. {Id. § 23.) 
 
 A mere technical breach of duty by not returning an inventory 
 at the day required, unattended with actual damage, will not justify 
 the surrogate in ordering a prosecution of the bond. ( The People 
 V. McDonald, 2 Cowen, 181.) 
 
 It may well happen, that after the making and return of an in- 
 ventory, personal property or assets of the deceased not mentioned 
 in any inventory already made, may come to the possession or 
 knowledge of the executor or administrator. If his power over the 
 subject were exhausted by making the first inventory, he could 
 neither make or be compelled to make another. But the law has 
 not been thus regardless of the rights of the parties. The exec- 
 utor or administrator, in the case supposed, is required to cause 
 the newly discovered assets to be appraised and an inventory 
 thereof to be made and returned within two months after the dis- 
 covery of the property ; and if he fails to do so, the making of 
 such inventory and return may be enforced, in the same manner 
 as in the case of the first inventory. (2 R. S. 86, § 24.) The 
 proceedings in taking the supplementary inventory are the 
 same, mutatis 7mttandis, as in taking the original inventory ; 
 and the mode of compelling such returns will not vary essentially 
 from that pursued in compelling the return of the first inventory. 
 The consequences of neglect and refusal are the same in all cases. 
 These proceedings may be repeated from time to time, as often as 
 additional property may be discovered. 
 
 Although in the case of an estate undoubtedly solvent, where all 
 the parties entitled in distribution, as legatees or kindred are of 
 full age, and amicably settle with the executors or administrators 
 their claims against the estate, the return of an inventory need not 
 be compelled, yet it is believed, as a general rule, it is for the in- 
 terest and safety oft he personal representatives to fulfill their duty 
 in this respect, which the statute enjoins. Should it become 
 necessary to resort to the real estate of the deceased to meet 
 unexpected debts, in consequence of the deficiency of personal 
 assets, no application for that purpose can be made to the 
 
OF COLLECTING THE EFFECTS. 267 
 
 surrogate, until after an inventory of the estate of the deceased 
 shall have been made and returned. It is better for all parties, 
 that the inventory should be made within the time prescribed by 
 law, than that it should be deferred till a much later period. 
 
 Again, the provisions of the act entitled, " Of suits by and 
 against executors' and administrators," are predicated on the sup- 
 position that an inventory is usually, if not always returned. The 
 14th section declares the eifect of the inventory when given in 
 evidence under a plea of plene adininistravit, making it prima 
 facie evidence only, and allowing either party to explain or rebut 
 it by proof. (2 R. S. 447 to 449. Marre v. Gonochio, 2 Bradf. 
 165. Montgomery v. Dunning, Id. 220.) For forms under 
 this section, see Appendix, No. 62 to 68.) 
 
 Section IV. 
 
 Of collecting the effects, and herein of the power of disposing 
 
 of them. 
 
 It is the duty of an executor or administrator, after having ob- 
 tained letters and returned an inventory, and, indeed, at an earli- 
 er period, to reduce to possession all the effects of the deceased, 
 which belong to the personal representatives. (2 Bl. Com. 510, 
 512. 2 Kent's Com. 415.) He is to do this with reasonable dili- 
 gence. He may thus be required to revive judgments obtained 
 by the deceased, in his lifetime, and make himself a party to pend- 
 ing actions. But as these proceedings belong more appropriately 
 to the practice of other courts, and do not appertain to that of 
 surrogates' courts, the reader is referred, for a full consideration of 
 the manner this duty is performed, to works devoted to that subject. 
 
 When the executor or administrator discovers that the debts, 
 and, in case of a will, that the legacies cannot be paid without a 
 sale of the personal estate of the deceased, he is required to cause 
 so much of it to be sold as may be necessary. This sale may be 
 public or private, and, except in the city of New York, may be on 
 credit, not exceeding one year, with approved security. The ex- 
 ecutor or administrator is not responsible for any loss happening 
 on such sale, when made in good faith and with ordinary prudence. 
 (2 R. iS. 87, § 25.) 
 
268 DISPOSING OF EFEEOTS. 
 
 The statute has a wise and benevolent provision, that in making 
 such sales such articles as are not necessary for the support and 
 subsistence of the family of the deceased, or as are not specifically 
 bequeathed, shall be first sold ; and articles so bequeathed shall 
 not be sold, until the residue of the personal estate has been ap- 
 plied to the payment of debts. {Id. 26.) 
 
 It sometimes happens that a doubtful claim will be lost by a too 
 rigid adherence to extreme rights. The hazard may arise from 
 the uncertainty of the facts, or the law of the case, or from the. 
 questionable ability of the party against whom it is made. Such 
 cases are now provided for by the act of 1847, ch. 80, § 1. (3 R. iS. 
 174, 5th ed.) By this act, executors or administrators may be 
 authorized, by the surrogate or other officer by whom his duties 
 are discharged, in the county where their letters were issued, on ap- 
 plication and good and sufficient cause shown therefor, and on such 
 terms as the surrogate or other officer shall approve, to compro- 
 mise or compound any debt or claim belonging to the estate of their 
 testator or intestate. This proceeding is necessarily ex parte, and 
 requires to be carefully watched by the surrogate, lest, by a col- 
 lusion between the debtor and the executor or administrator, the 
 interest of the estate may be unjustly prejudiced. The statute 
 has therefore properly provided, that nothing therein contained 
 shall prevent any person interested in the final settlement of the 
 estate from showing that such debt or claim was fraudulently or 
 negligently compromised or compounded. {Id. § 2.) 
 
 The foregoing provisions, although they leave the compromise 
 at the risk of the executor or administrator, in some respects, are 
 a relaxation of the rigor of the law, applicable to persons 
 acting in a fiduciary capacity. In the country, with ordinary 
 care on the part of the executors or administrators, and a reasona- 
 ble supervision of the surrogate, there will be little danger of loss 
 from a sale on a credit even with personal security. 
 
 The right of an executor or administrator to dispose of the per- 
 sonal estate of the deceased, is not limited to the payment of debts 
 and legacies, and is not derived from the 25th section of chapter 6. 
 (2 R. & 87.) It may be necessary to sell the assets in order to 
 make distribution in the cases of intestacy. The object of that 
 section was to prescribe the terms of credit and security, and the 
 manner of selling, as whether it should be public or private. The 
 
FUNEEAL EXPENSES. 269 
 
 right of alienation the executor derives from the will and probate, 
 and the administrator from his appointment ; and both, probably, 
 have relation to the time of the death of the testator. The assets 
 are, therefore, at no time without an owner, either actual or by in- 
 tendment of law. The jus disponendi is a necessary incident of 
 owne rship, whether such ownership be absolute or in auter droit. 
 The property may be of a perishable nature, or it may greatly de- 
 teriorate in value if kept until it is wanted for the payment of 
 debts or legacies. 
 
 Where there are two or more executors or administrators, either 
 one of them can sell and transfer the property which they hold in 
 that character, and the purchaser who buys it in good faith and 
 for a valuable consideration, can hold it against all the world. (So- 
 gert V. HertelL 4 Hill, 503.) 
 
 CHAPTER XL 
 
 OF THE PAYMENT OF THE FUNERAL CHARGES, AND THE ORDER 
 OF PAYING THE OTHER LIABILITIES OP THE ESTATE. 
 
 Section I. 
 
 Of funeral expenses. 
 
 The revised statutes recognize, by implication, the common law 
 rule, that the funeral charges are the first lien upon the estate of 
 a deceased person. While the executor is forbidden, before the 
 letters testamentary are granted, to dispose of any part of the es- 
 tate of the testator, or to interfere with it in any manner fur- 
 ther than is necessary for its preservation, an express ex- 
 ception is made in favor of funeral charges. (2 R. S, 71, § 16.) 
 At common law, it is the duty of the executor or administrator to 
 bury the deceased in a manner suitable to the estate which he 
 leaves behind. (2 Blk. Com. 508.) An extravagant expenditure 
 of money, on such an occasion, would be a devastavit. The diffi- 
 culty is to fix upon a rule which will be just towards parties in 
 distribution and creditors, as well as to the memory of the de- 
 ceased. These expenses are usually incurred when the exact cir- 
 
270 FUNEEAL EXPENSES. 
 
 cumstances of the deceased are not known, and by the relatives or 
 friends of the deceased, before any legal authority has been given 
 to administer on the estate. The account, when incurred in good 
 faith, should be examined with liberality. 
 
 A distinction is very properly made between solvent and insol- 
 vent estates ; and between cases of intestacy and where the testa- 
 tor has given special directions in his will as to the place and 
 manner of his burial, and the estate being ample to bear the 
 charge. In the latter case, the question will not arise between 
 the executor and a creditor, but between the former and the legatees 
 or kindred. 
 
 In Shelley's case, before Lord Holt, (1 Salk. 296,) the estate 
 was insolvent, and the question arose between the executor and a 
 creditor on a plea of plene administravit. His lordship held that 
 in strictness, no funeral expenses are allowable against a creditor 
 except for the cofEn, ringing the bell, parson, clerk and bearers' 
 fees, but not for pall and ornaments. Dr. Burn observes, that the 
 expenses of digging the grave and of the shroud should have 
 been added in Shelley's case. A charge for feasts and entertain- 
 ments is in all cases inadmissible. ( Toller, 48.) They are incon- 
 gruous to so mournful an occasion. 
 
 Lord Hardwicke, in Stagg v. Punter, allowed sixty pounds 
 for the funeral expenses. (3 Atk. 119.) The testator had direct- 
 ed his body to be buried at a church thirty miles distant. He 
 had left large sums in legacies, thus affording a reasonable ground 
 for an executor to believe the estate solvent ; and it was not clear 
 that there was any deficiency. His lordship observed, that at law, 
 where a person dies insolvent, the rule is that no more shall be al- 
 lowed for funeral expenses than is necessary, at first 40s. then 
 £5, and at last £10, but he thought the rule a hard one, even at 
 law, as the executor was frequently obliged to bury the testator 
 before he could possibly know whether the assets were sufficient 
 to pay his debts ; and he said that the court of chancery was not 
 bound down to so strict rules. 
 
 In the case of Hancock v. Podmore, (1 Barn. ^ Adol. 260,) 
 decided in 1830, issue was taken by a creditor on a plea of plene 
 administravit, and it was proved that the assets amounted to 
 £129, and that the executor had paid £55 for probate duty and 
 
FUNERAL EXPENSES. 271 
 
 £79 for funeral expenses. The court held that it was too much, 
 and intimated that at the present time an allowance of £20 for 
 the funeral of a person of condition might he allowed, as against a 
 creditor. In that case the deceased had been a captain in the 
 army. 
 
 It has been made a question whether the erection of a tomb- 
 stone can be allowed as a funeral expense, as against legatees or 
 parties in distribution. In Masters v. Masters, (1 P Wms. 423,) 
 the testatrix had given two hundred pounds by her will for a mon- 
 ument for her mother, from whom she received most of her estate. 
 It was claimed, as a debt of piety, that it should be paid without 
 abatement, in preference to other legacies, and . was allowed by 
 Sir Joseph Jekyl, notwithstanding a deficiency of assets to pay 
 all the general legacies. 
 
 The. doctrine of the foregoing cases was approved by the chan- 
 cellor, in Wood v. Vandenburgh, (6 Paige, 285.) In that case 
 the estate was solvent, but not able to pay all the legacies without 
 an abatement. Nevertheless, the chancellor held that a legacy, 
 for piety, for the erection of headstones at the grave of the testa- 
 tor's parents, or other near relatives, does not abate ratably, and 
 should be paid in full. He held, further, in the same case, that 
 the direction to erect a monument to the testator's own grave, was 
 not a legacy, but was to be considered as a part of the funeral 
 expenses of the deceased, where it did not interfere with the rights 
 of creditors. 
 
 The question has sometimes arisen whether, in case the testator 
 or intestate dies at a distance from home, the expense of removing 
 the corpse for burial to the place of his residence, is a proper fu- 
 neral charge to be allowed. If the deceased gave any directions 
 on the subject in his will, no doubt the expense of obeying them 
 is to be preferred to any legacy or claim of the parties entitled to 
 distribution. If the will be silent on the subject, the case will 
 turn upon the same principle which will govern in the case of in- 
 testacy. It is not uncommon, when a death occurs at a distance 
 from the family residence of the deceased, and the season of the 
 year interposes no obstacles, for the corpse to be conveyed for in- 
 terment to the cemetery which it would have occupied had he died 
 
272 FUNERAL EXPENSES^MOUENING. 
 
 at home. This is usually desired by the immediate kindred of the 
 deceased, and is, in my judgment, a proper charge, when it does 
 not interfere with the claims of creditors. 
 
 Whether mourning furnished the widow and family of a testator 
 is to be allowed, as a funeral expense, as against creditors and 
 legatees, seems to have been decided in the negative in England, 
 in Johnson v. Baker, (2 C. S/- P. 207,) by Best, 0. J. In Bridge 
 V. Brown, (1 Y. Sf C. 181,) the question arose between a part of 
 the next of kin and the executors, whether a charge of £20 for tomb 
 stones, and £35 for mourning for the testator's widow and daugh- 
 ters, should be allowed in addition to £100 for funeral expenses, 
 which the master had allowed. On exception to the report, the 
 vice chancellor (Bruce) refused to interfere with the report, and it 
 was confirmed. This case does not in truth settle the question, be- 
 cause the £100 allowed for funeral expenses may have been thought 
 suiScient to cover the expenses for tomb stones and mourning. 
 
 In a case where a large part of the estate was given in charity, 
 and the testatrix directed that " any thing not specified she com- 
 mitted to the discretion of her executors," and they expended 
 £93 12s. 6d. for mourning rings to be distributed among the re- 
 lations and friends of the deceased, Lord Eldon allowed the 
 charge, as being within the discretion of the executors. (Paice v. 
 The Archbishop of Canterbury, 14 Yesey, 864.) Here the con- 
 troversy was not raised by creditors, but the question arose be- 
 tween the donees of the charity and the relatives and friends to 
 whom the mourning rings were given by the executors. 
 
 The principle which seems to be deducible from the cases is, that 
 where the estate is large and the claims of creditors do not inter- 
 fere, the personal representatives are justified in burying the de- 
 ceased in the style and manner usually adopted for persons of the 
 like rank and condition in society. If the custom of the country 
 is to erect tomb stones at the grave of the deceased, such charge 
 will be justifiable even as against legatees and parties in distribu- 
 tion. But if the deceased was insolvent, although of respectable 
 standing, a funeral corresponding in style to what is usual by the 
 ordinary custom of the country for persons moving in the same 
 
PROBATE EXPENSES. 273 
 
 circle, would be allowed. But as tomb stones need not be pur- 
 chased, until the personal representatives have ascertained the 
 state of the deceased's assets, it is believed they are not a proper 
 charge in any case, as against creditors. Questions of this nature 
 may be essentially affected by provisions in the will of the deceased, 
 and by the general custom of the country. 
 
 In some of the states the expenses of the last sickness of the 
 deceased ; physicians' bills, and servants' wages are permitted to be 
 first paid ; and in Ohio, a sum is allowed for the support of the 
 widow and children for one year. All these exceptions are founded 
 on local statutes, and are dictated by considerations of humanity 
 and benevolence. They have not yet been introduced in this state, 
 but a compensation is found in the liberal exemption in the inven- 
 tory, which has already been considered. (2 Kent's Com. 419, 
 420, notes.) 
 
 The next expenses which are to be paid by the executors or 
 administrators are those incidental to the probate of the will, and 
 the obtaining of letters testamentary or letters of administration. 
 These expenses are the regular fees allowed to ihe surrogate by 
 the fee bill, and in cases of contest, such as shall be taxable 
 according to law. In cases where it shall appear to the surrogate 
 by the oath of the party applying for letters testamentary or of 
 administration, that the goods, chattels and credits of the deceased 
 do not exceed the value of fifty dollars, no fee is receivable by the 
 surrogate. (Laws o/1844, p. 447, §1. Z R. S.%21,bth ed.) Instan-. 
 ces are very rare where it is necessary to obtain letters on so small 
 an estate. If property of the deceased is subsequently discovered, 
 above the value of fifty dollars, it is properly chargeable with the 
 surroga,te's fees. 
 
 The expenses of the executor or administrator are next to be 
 discharged. 
 
 Lastly, the debts of the deceased, which are undisputed, are to 
 be paid. The consideration of disputed claims is postponed until 
 we come to a subsequent chapter, as is also that of the payment of 
 legacies and the distributive shares of the surplus to those who 
 are entitled to it. At present we are to treat of such debts as are 
 not controverted. 
 
 35 
 
274 U. S. DEBTS TO BE PREFERRED. 
 
 In the payment of debts, the common law rule of preference is, 
 to a great extent, abolished by the revised statutes. The order of 
 preference prescribed by the statute is, 
 
 1. Debts entitled to a preference under the laws of the United 
 States. 
 
 2. Taxes assessed upon the estate of the deceased previous to 
 his death. 
 
 3. Judgments docketed, and decrees enrolled against the de- 
 ceased, according to the priority thereof, respectively. 
 
 4. All recognizances, bonds, sealed instruments, notes, bills and 
 unliquidated demands and accounts. (2 R. S. 87, § 27.) 
 
 We shall discuss these in their order. 
 
 Section II. 
 
 Of debts entitled to a preference under the laws of the United 
 
 States. 
 
 The 5th section of the act of Congress of the 3d March, 1797, 
 entitled an act to provide more effectually for the settlement of 
 accounts between the United States and receivers of public money, 
 provides that where any revenue officer, or other officer, or other 
 person, hereafter becoming indebted to the United States, by bond 
 or otherwise, shall become insolvent, or where the estate of any 
 deceased debtor, in the hands of executors or administrators, shall 
 be insufficient to pay all the debts due from the deceased, the debt 
 due to the United States shall be first satisfied ; and the priority 
 thereby established, is, by the same section, declared to extend as 
 well to cases in which a debtor, not having sufficient property to 
 pay, all his debts, shall make a voluntary assignment thereof, or in 
 which the estate and effects of an absconding, concealed or absent 
 debtor, shall be attached by process of law, as to cases in which an 
 act of legal bankruptcy shall be committed. (2 L. of U. iS. 594.) 
 
 The act of 1799, entitled an act to regulate the collection of 
 duties on imports and tonnage, (3 L. of U. S, 136, 197, § 65,) and 
 which is the basis of our revenue laws, provides that in all cases 
 of insolvency, or where any estate in the hands of the executors, 
 administrators or assigns, shall be insufficient to pay all the debts 
 due from the deceased, the debt or debts due to the United States, 
 
U. S. DEBTS TO BE PEEFEKEED. 275 
 
 on any such bond or bonds, shall be first satisfied ; and any execu- 
 tor or administrator, or assignees, or other persons, who shall 
 pay any debt due by the person or estate from whom, or for 
 ■which they are acting, previous to the debt or debts due to the 
 United States from such persons or estate, being first duly satis- 
 fied and paid, shall become answerable, in their own person and 
 estate, for the debt or debts so due to the United States, or so 
 much thereof as may remain due and unpaid, and actions or suits at 
 law may be commenced , against them for the recovery of the said 
 debt or debts, or so much thereof as may remain due and unpaid, 
 in the proper court having cognizance thereof ; and it is by the 
 same section also provided, that if the principal, in any bond which 
 shall be givein to the United States for duties on goods, wares or 
 merchandise imported, or ' other penalty, either by himself, his 
 partner or agent, or other person for him, shall be insolvent, or if 
 such principal being deceased, his or her estate or effects, which 
 shall come to the hands of his or her executors, administrators or 
 asignees, shall be insufficient for the payment of his or her debts, 
 and if, in either of the said cases, any surety on the said bond gr 
 bonds, or the executors, administrators or asignees of such surety, 
 shall pay to the United States the money due upon such bond or 
 bonds, such surety, his or her executors, administrators or asignees, 
 shall have and enjoy the like advantage, priority or preference, for 
 the recovery and receipt of the said moneys out of the estate and 
 effects of such insolvent or deceased principal, as are reserved and 
 secured to the United States ; and shall and may bring and main- 
 tain a suit, or suits, upon the said bond or bonds, in law or equity, 
 in his, her or their own name, or names, for the recovery of all 
 moneys paid thereon. 
 
 In the case of the United States v. Fisher and others, 
 (2 Crunch, 358,) the question was very fully discussed in the 
 supreme court of the United States, as to the nature and 
 extent of the preference given to the government by the 6th 
 section of the act of 1797, and it was held by a majority of the 
 court, that it extends to debtors generally, and includes the case 
 of a person becoming indebted to the United States as the indorser 
 of a bill of exchange. This priority does not, however, partake of 
 the character of lien, on any specific effects, {Id. and United States 
 
276 PRIORITY OF DEBTS. 
 
 V. Hooe, 3 Crunch, 73, 90, -per Marshall, Ch. J.,) and therefore 
 the United States cannot follow the property into the hands of a 
 bona fide assignee of a debtor. And in the opinion of Mr. Ch. J. 
 Marshall, an executor or administrator, would not be guilty of a 
 devastavit in the administration of the effects of the deceased, 
 unless he had notice of the claim of the government, and paid the 
 assets to other creditors, and thus, knowingly, disregarded the 
 preference due to the United States. (2 Cranch, 391, note, and 
 per Piatt, J. in Aikin v. Dunlap, 16 John. 85.) 
 
 The priority thus given to the United States is not waived by 
 their proving their debts before the commissioners of the bank- 
 rupt. {Harrison v. Sterry, 6 Cranch, 299.) Nor does this priority 
 given to a surety who pays the debt ot his principal, extend to an 
 action brought by a surety against his principal, for money paid. 
 It merely transfers to the surety the preference due to the govern- 
 ment in the distribution of the effects of the insolvent principal. 
 The latter may, however, when sited by the surety, avail himself 
 of his discharge. {Aikin v. Dunlap, supra.) 
 
 ■ A mere state of insolvency, or inability in a debtor of the United 
 States, to pay all his debts gives no preference to the United 
 States, unless it is accompanied by a voluntary assignment of his 
 property for the benefit of his creditors ; or unless his estate or 
 effects shall be attached as those of an absent, concealed, or ab- 
 sconding debtor ; or, unless he has committed some legal act of 
 bankruptcy or insolvency. ((See note to U. States v. Howland, 
 4 Wheat. 118, et seq.) The assignment must be of all the debtor's 
 property. An omission, however, of a trivial portion, for the pur- 
 pose of evading the act, would probably be considered as a fraud 
 upon the law. Though a judgment gives to creditor a lien on the 
 debtor's land, and a preference over all subsequent judgments, 
 yet this preference must yield to the priority of the government. 
 {Thelussonv. Smith, 2 Wheat. 396.) 
 
 The priority of the government is general when the debtor is 
 dead. During his life it is limited to the cases above stated. 
 {Note to 4 Wheat. 118. Conard v. The Atlantic In. Co. 
 1 Peters, 386, 439. Harris v. De Wolf, 4 id. 147. Hutiter v. 
 The United States, 5 id. 172. The United States v. The State 
 Bank of North Carolina, 6 Peters, 29.) 
 
PEIOEITT OF TAXES. 377 
 
 The right of priority of payment of ijehts due to the govern- 
 ment, is a prerogative of the crown of England, well known to the 
 common law. It is founded not so much upon any personal ad- 
 vantage to the sovereign, as upon motives of public policy to se- 
 cure an adequate revenue to sustain the public burdens, and dis- 
 charge the public debts. The claim of the United States, how- 
 ever, to priority, does not stand upon any sovereign prerogative, but 
 is exclusively founded on the actual provisions of our own statutes. 
 The same policy which governed in the cases of the royal prerog- 
 ative may be clearly traced in these statutes ; and. as that policy 
 has mainly a reference to the public good, there is no reason for 
 giving to them a strict and narrow interpretation. (M) 
 
 Section III. 
 
 Of taxes assessed upon the estate of the deceased previous to his 
 
 death. 
 
 We have seen in the preceding section that the preference given 
 to the United States, in the payment of debts out of the estates 
 of deceased persons, arises out of legislative enactments, founded 
 on principles of public policy, and is not claimed as a prerogative 
 of sovereignty. In England, it is said that the king, by his pre- 
 rogative, is to be preferred before other creditors, inasmuch as the 
 law regards the royal revenue as of more importance than any pri- 
 vate interest. ( Toller, 259.) This preference, however, belongs 
 to the king, in his political capacity, as the representative of the 
 whole empire. For a debt due to him as an individual, he stands 
 on a footing with the -meanest of his subjects. 
 
 The preference given to the king of England in the payment of 
 debts of record, or by specialty, results from the operation of the 
 statute, 33 H. 8, ch. 39, by which it is enacted that all obligations 
 and specialties, taken to the use of the king, shall be of the same 
 nature as a statute staple. This statute has never been enacted 
 in this state, and it would, therefore, seem that a debt by judg- 
 ment or specialty to the people, had no preference over one of the 
 same character due to an individual. 
 
 The general opinion has always been, that the people of this 
 state succeeded, at the revolution, to all the prerogatives of 
 
278 PKIOKITT OF TAXES. 
 
 the crown, existing at common law, which were applicable to our cir- 
 cumstances and condition. It is upon this principle, probably, 
 that Mr. Bridgen and Chancellor Kent both state that debts due 
 to the people are to be paid before debts of the same rank due to 
 individuals. {Bridgeii's Surrogate, 63. 2 Kent, 416.) What- 
 ever Tuay have been the law before, it has been so changed by the 
 revised statutes, in 1830, as to give a preference only to taxes as- 
 sessed upon the estate of the deceased previous to his death. 
 
 It will not be without instruction to trace the various changes in 
 our legislation on this subject. By the act of 1788, (2 Greenl. 
 176, § 8,) the person in possession of real estate, at the time any 
 tax was to be collected, was made liable to pay it ; and authority 
 was given to the collector to sell the timber and grass growing 
 on the land to pay the tax. The 18th section of the act for the 
 assessment and collection of taxes, passed April 8, 1801, (1 K. ^ R. 
 555,) made a tax a lien on the estate, to be considered as a mort- 
 gage. The revised act of 1813, {L. of 1818, p. 513, § 10,) de- 
 clared that all taxes upon any real estate should be a lien thereon, 
 and be preferred in payment to all other charges ; and all taxes 
 upon any personal estate, in case of the death or bankruptcy of 
 the person taxed, were also ordered to be preferred in payment to 
 all other demands. From this provision, the preference contained 
 in the revised statutes of 1830 was taken. It is made general. 
 Taxes assessed upon the estate of the deceased, previous to his 
 death, is the language of the section, and it applies to all taxes go- 
 ing to the people, whether assessed on real or personal estate. 
 
 But this statute priority is not extended to assessments made by 
 a municipal corporation, though such assessment may be a lien 
 on the real estate of the party. These municipal assessments are 
 payable out of the personal estate, though not entitled to a prefer- 
 ence over other debts. {Seabury v. Bowen, 3 Bradf. 207.) 
 
PRIOEITY OF JUDGMENTS. 279 
 
 Section IV. 
 
 Of the 'preference in the 'payment of judgments docketed, and 
 decrees enrolled against the deceased, according to their 
 priority. 
 
 The rule of priority, at common law, embraced the judgments of 
 all the courts of record of the kingdom : that is to say, 
 not only the judgments of the courts of Westminster Hall ; but 
 also of the courts of cities, or towns corporate, having power by 
 charter to hold plea of debt above forty shillings, as in London, 
 Oxford, and other places. So, it seems judgment in a court of pie 
 poudre, which is a court incident to every fair and market, and is the 
 lowest court of justice known to the law of England, claims the same 
 preference. (2 Wms. Ex'rs, 856, 7. Wentwortk's Ex'rs, 271.) 
 
 With us the criterion as to priority is not so much the charac- 
 ter of the court as the nature of the judgment. It must be a 
 judgment docketed or a decree enrolled against the deceased. The 
 enrollment of decrees had reference to the practice of the court of 
 chancery, which has since been abolished, and a similar one sub- 
 stituted by the code, (§ 281.) The mode of expression adopted 
 in the statute clearly shows that it has reference only to a final 
 judgment of some court in this state, which is docketed according 
 to our own laws. {Brown v. The Public Administrator, 2 Bradf. 
 Rep. 103.) A judgment recovered in another state has no greater 
 force in respect to the distribution of the assets of a deceased per- 
 son, than a foreign judgment. Neither at common law, nor under 
 the statutes of this state, have judgments recovered in another 
 state any title to priority of payment over simple contracts. Cred- 
 itors claiming under such judgments, must, it is said, come in 
 with the creditors of the deceased, described in the 4th class men- 
 tioned in the section, and which will be the subject of the next 
 section. {Id.) 
 
 A judgment of a foreign country is considered merely as a sim- 
 ple contract. {Huhbell v. Coudy, 5 John. 132. Walker v. Witter, 
 1 Douglass, 1. Taylor v. Bryden, 8 John. 173. Pawling v. Bird, 
 18 id. 192.) The courts in this state formerly applied this rule to 
 
280 PKIOEITY OF JUDGMENTS. 
 
 judgments of the several states of this union. But since the case 
 of Mills V. Duryee (T Crunch, 481,) for the purpose of pleading 
 and evidence, the judgment of, a neighboring state, rendered by a 
 court of record therein, is of the same conclusive character as a 
 judgment of the like courts of our own state. This results from 
 the constitution of the United States requiring that full faith and 
 credit shall be given in each state to the public acts, records and 
 judicial proceedings of every other state ; and the act of congress 
 of 26th May, 1790, ch. 11, passed in pursuance of the requirement 
 of the constitution, which provides for the mode of authenticating 
 the records and judicial proceedings of the state courts. It enacts 
 " That the records and judicial proceedings authenticated as afore- 
 said, shall have such faith and credit given to them in every court 
 within the United States, as they have by law or usage in the 
 courts of the state from whence the said records are or shall be 
 taken." This provision evidently has reference only to the faith 
 and credit which are to be given to the judgment as matter of 
 evidence, and the manner in which it is to be treated in pleading. 
 It does not affect the rule of priority in payment. 
 
 Judgments of the United States courts in this state are entitled 
 to be docketed, and, like judgments of our own courts, are a lien 
 upon land. It is believed that such judgments are entitled to- 
 priority according to the date of their docketing. [{Bernes v. 
 Weisser, 2 Bradf. 212, 214. Manhattan Co. v. Evertson, 
 6 Paige, 457.) 
 
 Debts entitled to preference under the third class, are not to be 
 paid, like those under the fourth class, pro rata, in case of a de- 
 ficiency of assets, but are entitled to be satisfied in the order of 
 priority. Hence if there be several judgments, docketed on different 
 days, and the assets are only sufficient to pay part, they must be 
 applied in full satisfaction of the elder in point of time, and if any 
 thing remains, it is to be applied to the next in point of time, and 
 so on till the whole fund is exhausted. Nor does it alter the case, 
 that one or more of the judgments have been docketed more than 
 ten years, so that its lien upon the real estate must yield to sub- 
 sequent liens.) The statute does not make that qualification in 
 establishing the priority in the administration of the payments. 
 
PRIORITY OF JUDGMENTS. 281 
 
 It looks to the date of the docket, and not to its effect as a lien. 
 (^Ainslie v. Radcliff, 7 Paige, 439.) 
 
 Whether a judgment docketed after the death of the defendant, 
 is entitled to a preference, has sometimes been made a question. 
 In England it has been held that a judgment which is entered up 
 (by virtue of the statute 17 Car. 2, ch. 8, § 1) against the testa- 
 tor or intestate after his death, when that happens between ver- 
 dict and judgment, shall be considered as if entered up in his life- 
 time, and entitled to priority of payment by his executors or ad- 
 ministrators accordingly. (2 Ld. Raymond, 1280.) But when 
 his death happens between interlocutory and final judgment, and 
 the latter is entered up by virtue of the statute 8 <fe 9 W. 3, it 
 is otherwise, for such judgment is not to be entered against the 
 testator or intestate, but against his executors or administrators. 
 (1 Salk. 42. 2 Saund. 72.) And it is the same when the death 
 happens after the writ of inquiry is executed and before final 
 judgment. (2 Will. Ex. 857.) 
 
 The statute of 17 Oar. 2, above cited, was re-enacted in this state 
 many years ago. {See act 0/I8OI, 1 R. L. o/1813, p. 144, § 5.) 
 It was continued in the revision of 1830, as was also the substance 
 of the 8 & 9 W. 3. (2 R. S. 387, §§ 3, 4.) There are, however, 
 some qualifications annexed to our present act. Thus, in all cases 
 in which a record of judgment shall be filed and docketed, within 
 one year after the death of the party against whom such judgment 
 was obtained, a suggestion of such death, if it happened before 
 judgment rendered, is required to be entered on the record, and if 
 after judgment rendered, the fact must be certified on the back of 
 the record by the attorney filing the same. Such judgment, it is 
 enacted, shall not bind the real estate which such party shall have 
 had, at the time of his death, but shall be considered as a debt to 
 be paid in the usual course of administration. (2 R. S. 359, § 7. 
 Nichols V. Chapman, 9 Wend. 455, et seq.) 
 
 It is obvious, 1st. that such judgment cannot bind the real estate 
 of the deceased, because no judgment binds the real estate 
 until it is docketed ; and 2d. before the judgment is docketed, 
 the real estate at the death of the party vests in his heirs or 
 devisees. 
 
 The object of a docket is not exclusively to bind land and to 
 
 36 
 
282 PEIOEITY OF JUDGMENTS. 
 
 notify purchasers. The statute 4 and 5 W. and M. ch. 20, (re- 
 enacted, 1 R. L. of 1813, 501, § 3) provided that no judgment not 
 docketed, should have any preference against heirs, executors or 
 administrators, in their administration of their ancestors, testators, 
 or intestates' effects. In Hackley v. Hayton, (6 D. 6f E. 384,) 
 the construction of this statute was for the first time given ; and 
 it was held that the object of the docket was to notify the executor 
 or administrator of the claim ; that if the docket was omitted, the 
 judgment must be put on a level with a simple contract. The 
 N. Y. revised statutes declare that no judgment shall be deemed 
 valid so as to authorize any proceeding thereon until the record 
 thereof shall have been signed and filed ; nor shall it affect lands, 
 tenements, real estate or chattels real, or have any preference as 
 against judgment creditors, purchasers or mortgagees, until the 
 record thereof is filed and docketed as the law requires. (2 R. S. 
 360, §§ 11, 12. Van Ornam v. Philips, 9 Barbour, 504-5.) 
 
 In the case of Nichols v. Chapman, supra, a judgment had 
 been entered up on a bond and warrant of attorney after the death 
 of the defendant, who died in vacation, as of the preceding term, 
 when he was in full life, and an executipn, tested in his lifetime, 
 had been issued to the sheriff and levied, after the defendant's 
 death, on his personal property. The administrators moved the 
 court to set aside this execution for irregularity. The Chief 
 Justice (Savage) in delivering the judgment of the court, observed, 
 that if a person who has executed a bond and warrant of attorney 
 to confess judgment, dies during a vacation, judgment may be en- 
 tered against him, during the same vacation, as of the preceding 
 term, and it will be valid by the common law. Upon the same 
 principle the execution, at common law, might have issued, if 
 tested before the death of the defendant and levied before the next 
 term. But he considered, that under the revised statutes, although 
 judgment might be regularly entered up and docketed, in the 
 manner above stated, yet no execution could regularly issue ; that 
 the judgment became a debt to be paid in the regular course of 
 administration. That the usual course of administration in the 
 payment of judgments is to pay the oldest first, the docket being 
 the evidence of the age. In that case, therefore, the execution 
 was set aside as irregular. The court held that the administrators 
 
PRIORITY OF JUDGMENTS. 283 
 
 of the deceased and not the sheriff, were the proper persons to ad- 
 minister the assets. 
 
 At common law, between one judgment and another obtained 
 against the deceased, as they stood amongst themselves, precedency 
 or priority of time was not material. ( Toller, 265. Ainslie v. 
 Raddiff, 7 Paige, 439. Trust v. Hamad, 4 Brad. 213.) The 
 executor or administrator might pay which he pleased first. But 
 by the New York revised statutes, judgments docketed and de- 
 crees enrolled must be paid according to their priority. (2 jR. & 
 87, § 27.) This is merely applying to the administration of per- 
 sonal property, the same rule which before existed as to real prop- 
 erty, in the satisfaction of judgments and enrolled decrees ; that 
 is to say, of paying them not pro rata, nor ad libitum, but accord- 
 ing to their rank, the oldest first, and thus in succession according 
 to the date of the docket, till they are all paid. It is in the power 
 of the executor or administrator to ascertain from the proper 
 officers, the number and amount of judgments or decrees against 
 the deceased. He ought to obtain this information, and satisfy 
 the docketed judgments and enrolled decrees according to their 
 legal priorities. 
 
 The revised statutes, as originally adopted, in their provisions 
 as to docketing judgments and enrolling decrees, had reference to 
 judgments of courts of general jurisdiction, viz : The court of 
 chancery, supreme court, courts of common pleas of the different 
 counties, and superior court of New York. They were framed 
 with reference to the courts established under the constitution of 
 1822. Since the adoption of the constitution of 1846, the courts 
 have been remodeled, and others created. But the principle rela- 
 tive to the priority, arising from the time of docketing judgments, 
 has been retained ; and has been extended to the judgments of 
 justices of the peace, {Code, § 63,) decrees of surrogates' courts 
 for the payment of moneys, by an executor or administrator, or 
 guardian. (Z>. o/1837, p. 535, § 63.) And probably to other lo- 
 cal courts. Those judgments and decrees, when docketed, are to 
 be paid according to their priority. 
 
 A judgment obtained against an executor or administrator is 
 entitled to no such preference. Nor does the commencement of a 
 suit against the personal representatives, for the recovery of any 
 
284 EQUALITY OF PAYMENT. 
 
 debt, confer any advantage as it formerly did. (2 R. S. 87, § 28. 
 Parker v. Gainer, 17 Wend. 560. Butler v. Hempstead's 
 Adnirs, 18 id. 666.) 
 
 Section V. 
 
 Of the "payment of recognizances, bonds^ sealed instruments, 
 notes, bills, and unliquidated demands and accou7its. 
 
 The fourth and last class of debts to be paid by the executor or 
 administrator is that named at the head of this section. This em- 
 braces every other species of debts not included in the preceding 
 sections ; and every other demand which it is the duty of an exec- 
 utor or administrator to discharge. There is one strong feature 
 which marks this class of demands. They are all placed upon an 
 equality as to payment. It is expressly enacted that no prefer- 
 ence shall be given in the payment of any debts of the same class, 
 except in the case of judgments docketed and enrolled decrees. 
 
 Nor does the fact of the debts not being due, make any differ- 
 ence. Debts not due may be paid by an executor or administra- 
 tor, according to the class to which it may belong, after deducting a 
 rebate of legal interest upon the sum paid for the time- unexpired. 
 (2 R. S. 87, § 29.) 
 
 The only exception to the rule of equality in this class, is in the 
 case of rents due or accruing upon leases held by the testator or 
 intestate, at the time of his death. In regard to them, the statute 
 enacts that preference may be given by the surrogate to such 
 rents whenever it shall be made to appear, to his satisfaction, that 
 such preference will benefit the estate of the testator. (Id. § 37.) 
 This exception was not proposed by the revisers, but was inserted 
 by the legislature, probably for the reason that by the law, then 
 in force between landlord and tenant, the goods might be liable to 
 be seized and sold under a distress warrant, issued by the land- 
 lord. (2 R. S. 500.) Distress for rent was abolished in 1846, 
 {L. of 1846, ch. 274. 3 R. S. 829, 5tk ed.) and thereby the prin- 
 cipal reason for this preference was taken away. Still the excep- 
 tion remains, and there may be cases when it should be allowed. 
 With this exception, all the provisions of the revised statutes im- 
 ply that the debts embraced in this section shall be paid ratably. 
 
EQUALITY OF PAYMENT. 285 
 
 Thus, it is provided, that in any suit against an executor or admin- 
 istrator, the defendant may show, under a notice for that purpose, 
 given with his plea, that there are dehts of a prior class unsatis- 
 fied, or that there are unpaid debts of the same class with that 
 on which the suit is brought, and judgment shall be rendered only 
 for such part of the assets in his hands as shall remain after satis- 
 fying the debts of the prior class, and as shall be a just proportion 
 to the other debts of the same class with that on which the suit 
 is brought. But the plaintiff may, as in other cases, take judg- 
 ment for the whole or part of his debts to be levied of future 
 assets. (2 R. S. 88, § 31.) The change of pleading introduced 
 by the code has made some modification in the practice in this 
 respect. The supreme court, in Allen v. Bishop, (25 Wend. 415,) 
 took notice of the impossibility of reconciling some sections of the 
 revised statutes with the general system prescribed in respect to 
 the settlement of the estates of deceased persons. The chief jus- 
 tice (Nelson) observed that a pro rata distribution among the 
 creditors of a class, in case of a deficit in the assets, is a fundamen- 
 tal principle, for the enforcement of which abundant provision is 
 made. The whole fund is brought under the control of the surro- 
 gate, and not a dollar can be touched without his assent. Execu- 
 tors and administrators are but trustees to settle the estate under 
 his direction and control, agreeably to the principles of the statute. 
 Nx)thing is gained by obtaining a judgment against them beyond 
 the liquidation of the debt. The creditor gets no costs, except at 
 the discretion of the court, and only his pro rata share on the 
 judgment. The result is the same whether the suit is defended or 
 not. (18 Wend. 666. 12 id. 542. IT id. 559.) And hence the 
 court held that a plea oiplene administravit, and jjlene adminis- 
 travit preter, were no longer appropriate, and the latter not a bar, 
 although the 31st section of the act imported the contrary. 
 
 In case a judgment is obtained against an executor or adminis- 
 trator, no execution can be issued until an account of his adminis- 
 tration shall have been rendered and settled, or on an order of the 
 surrogate who appointed him. And if an account has been ren- 
 dered by such executor or administrator, execution shall only issue 
 for the sum that shall appear on the settlement of such account to 
 have been a just proportion of the assets applicable to the judg- 
 
286 EQUALITY OF PAYMENT. 
 
 ment. {Id. § 32. Winne v. Van Schaick, 9 Wend. 448. The 
 People V. Judges of the Albany Mayor's Court, id. 489.) 
 
 Nor is there any preference given to a debt due to an execu- 
 tor or administrator from the deceased. Such debt is placed upon 
 the same footing of equality as other debts, and must be first al- 
 lowed by the surrogate before payment. {Id. 33. Treat v. For- 
 tune, 2 Bradf. 116. Rogers v. Hosack's EnPrs, 18 Wend. 319. 
 6 Paige, 426, /S*. C.) This allowance may be made on the return 
 of a citation for that purpose, directed to the proper persons, or on 
 the final accounting of the executor or administrator, which will 
 be hereafter considered. (L. o/1837, ch. 460, § 37. 3 R. S. 175, 
 bth ed.) 
 
 At common law the rule of payment was otherwise. Recog- 
 nizances ranked next after judgments, and then specialties, and 
 lastly simple contract debts. But the executor or administrator 
 might pay which of the same class he pleased, without reference 
 to priority ; or he might distribute equally among those of the 
 same class. Hence if there were several creditors by specialty, 
 he might pay one alone his whole debt, and leave the others unpaid, 
 in case of a deficiency of assets. ( Toller, 271 to 288.) In like 
 manner among simple contracts, the executor or administrator might 
 pay one, and that the youngest creditor, to the exclusion of the 
 others. It was sufficient evidence to support a plea of plene ad- 
 ministravit, that the assets were paid to a creditor, and it was no 
 evidence of a devastavit, that other creditors of the same class 
 were thus left unpaid. The commencement of a suit, at law or in 
 equity, gave a priority over other creditors in equal degree, but 
 the executor or administrator might go and confess a judgment to 
 another creditor, in equal degree, and thereby 'defeat the creditor 
 who first sued, by pleading the judgment and nil ultra, 6^c. 
 (2 KenVs Com. 416, 417.) The injustice of the common law 
 rule of payment was early felt, and in chancery the distribution of 
 what are termed equitable assets was more liberal and equitable. 
 No distinction was made in that court, as to the quality of the debts, 
 except debts which had acquired a priority by a legal lien, and 
 the creditors were paid ratably, if the assets were not sufficient to 
 pay all of them. The legislature seems to have had this in view 
 when the revised statutes were enacted. 
 
JOINT DEBTORS— MORTGAGE. 287 
 
 A recognizance is an obligation of record ; it may be entered 
 into before a court of record, or a magistrate duly authorized, con- 
 ditioned for the performance of a particular act ; as to appear 
 at court, to keep the peace, to pay a debt, or the like. The party 
 ■who enters into the recognizance' is called the cognizor " is qui 
 cognoscit ;" and he to whom the debt or obligation is acknowledged, 
 the cognizee, " is cui cognosciiur." The instrument being either 
 certified to, or taken by the officer of some court, is authenticated 
 only by the record of such court, and not by the party's seal. (2 Blk. 
 Com. 341.) In this state, such recognizances as are required or 
 authorized to be taken in any criminal proceeding, in open court, 
 by any court of record, are entered in the minutes of the court, 
 and the substance is read to the person recognized ; all other re- 
 cognizances in any criminal matter or proceeding under the laws 
 respecting the internal police of the state, are required to be in 
 writing and subscribed by the parties to be bound thereby. 
 (2 R. S. 746, § 24. The People v. Bundle, 6 Hill, 506. iSame 
 V. Crraham, 1 Parkers Cr. Rep. 141.) 
 
 If the testator or intestate is bound in a joint and several obli- 
 gation, his executor or administrator may pay it out of the estate 
 of the deceased ; but if the testator or intestate is bound in a 
 joint obligation merely, the survivor must be charged out of his 
 own estate, and the executors or administrators of the dceased co- 
 obligor are not liable at law, on the instrument, nor can they set 
 up any payment of it. (Bac. Abr. title Obligation, D. 4. Tow- 
 ers V. Moore, 2 Vern. 99.) This is an incident of the other rule 
 that the right to a joint debt on obligation, at law, goes to the 
 survivor. In equity it is otherwise ; for though the obligation be 
 joint and one of the obligors dies, yet if the obligee cannot recov- 
 er the amount due against the survivor, the estate of the deceased 
 is liable. 
 
 A debt secured by mortgage was formerly a charge upon the 
 personal assets, whether there was a bond accompanying the mort- 
 gage or not ; nor did it make a difference whether there was an 
 express covenant contained in the mortgage to pay the money, or 
 not. (1 P Wrns. 291, 294. 2 id. 455. 3 id. 358. Mollan v.- 
 Griffith, 3 Paige, 404.) If, however, there was no bond or cov- 
 
288 BOND AND MOETGAGE. 
 
 enant, the debt was ranked as a simple contract and was postponed 
 in favor of specialties. If there was an express covenant to pay, 
 or a bond accompanying the mortgage, it took rank as a specialty 
 debt and the executor or administrator was bound to discharge it, 
 and thus leave the inheritance incumbered to the heir or devisee. 
 (Id.) But this doctrine is now modified by the revised statutes. 
 Thus, it is enacted, (1 R. IS. 738, § 139,) that a mortgage shall 
 not be construed as implying a covenant for the payment of 
 the sum intended to be secured. And as a consequence from this 
 position, it is also provided that, where there is no express cove- 
 nant for the payment of the money, contained in the mortgage, 
 and no bond or other separate instrument to secure such pay- 
 ment, the remedies of the mortgagee shall be confined to the 
 lands mentioned in the mortgage. {Hmie v. Fisher, 2 Barb. 
 Ch. R. 559.) The operation of this provision is to release the 
 personal estate from the payment of a mortgage, when the de- 
 ceased had entered into no obligation to pay the money secured 
 by it. Accordingly, it is further enacted, that whenever any real 
 estate, subject to a mortgage executed by any ancestor or testator, 
 shall descend to an heir, or pass to a devisee, such heir or devisee 
 shall satisfy and discharge such mortgage out of his own property 
 without resorting to the executor or administrator of his ancestor, 
 unless there be an express direction in the will of such testator, 
 that such mortgage be otherwise paid. (1 R. S. 749, § 4. Tay- 
 lor V. Wendel, 4 Bradf. 324.) Hence when a surrogate decrees 
 a distribution of the personal estate of the deceased debtor among 
 his creditors, if any such creditor have a security for his debt 
 upon another fund which is primarily liable for the payment of 
 the debt, the surrogate should compel such creditor to exhaust his 
 remedy against such fund, and only to come in as against the per- 
 sonal estate for the deficiency. And when distribution of such 
 personal estate must be made before such deficiency can be ascer- 
 tained, he should direct a portion of the personal estate to be re- 
 tained to meet the contingent claim for such deficiency. {Halsey 
 V. Reid, 9 Paige, 446. Smith v. Lawrence, 11 id. 207.) 
 
 The general clause in a will directing the payment of all the 
 testator's debts by his executors is not suflScient to charge the 
 executors with the payment of a mortgage on real estate devised. 
 
DUTY OF EXECUTORS, &c. 289 
 
 To interfere with the provisions of the statute relieving the gen- 
 eral estate from the charge, there must be some express direc- 
 tion in the will to that effect. The usual formula in a will, di- 
 recting all his debts to be paid, is not sufficient for this purpose. 
 ( Taylor v. Wendel, 4 Bradf. 324.) Hence, where the testator by 
 his will bequeathed the sum of $20,000 in trust for his niece, and 
 afterwards, by a codicil, devised to her a house and lot in lieu of 
 a portion of the legacy ; the premises devised being subject to a 
 bond and mortgage at the time of his death, and the will contain- 
 ing only the usual direction to pay debts, it was held by the learn- 
 ed surrogate of Kew York that the devisee took the land cmwi 
 onere, and was bound to pay the mortgage and the interest there- 
 on. {.Id.) As between the devisee and executor in such a case, 
 the mortgage is the principal security, and the land the pri- 
 mary fund for its discharge. 
 
 The alterations made by the revised statutes in the duties of 
 executors and administrators in the payment of debts of the de- 
 ceased, the abolition of preferences among creditors, except where 
 a legal lien has been acquired by a judgment docketed or decree 
 enrolled, and the taking away of the advantage which was formerly 
 given to commencing suits against executors and administrators 
 and obtaining judgments, have much simplified their labors, dimin- 
 ished their responsibility, and rendered an examination of the old 
 cases on this subject, in a great measure, unnecessary. It is the 
 policy of the law to make it for the interest of the creditors of the 
 estate to exhibit their claims at an early period, and to receive 
 their debt, or such portion of it as the estate is able to pay, with- 
 out resorting to a suit. The executor or administrator should ascer- 
 tain as soon as possible the extent of the assets ; he should adopt 
 the appropriate means to learn the amount of the just demands 
 against the estate, and should pay them in the manner the law re- 
 quires. He should not be too precipitate in making payments on 
 the one hand, lest the assets would not be sufficient to satisfy all ; 
 nor should he be too dilatory on the other, lest he should be sub- 
 jected to costs. 
 
 37 
 
290 OF PAYMENT OF AN" INFEEIOR DEBT. 
 
 Section VI. 
 
 Of the payment of- an inferior debt before a superior, and of 
 miscellaneous matters in relation to this subject. 
 
 An executor or administrator is bound to take notice, at his 
 peril, of all judgments docketed and decrees enrolled ; and it is for 
 this purpose, in part, that a docket is required to be made. If, 
 therefore, he pays debts of a lower rank first and thus exhausts 
 the assets, he shall be held liable to pay out of his own estate such 
 judgments or decrees, or preferred demands, as shall be thus de- 
 frauded. ( Toller, 278, 292.) If, for example, he should pay a 
 creditor at large, and leave unsatisfied a preferred debt due to the 
 United States, he would be held liable to the extent of the assets 
 which he had thus improperly distributed. 
 
 In analogy to this principle, it would seem that if an executor 
 or administrator pays the whole of a debt due to one creditor when 
 the assets admit only a proportionate part of it to be satisfied, and 
 thus diminishes the ratable proportion of the other creditors, he 
 would be answerable out of his own estate to make good the loss 
 occasioned by such erroneous payment. At common law it was 
 required to create this liability, that the executor or administrator 
 had notice of the existence of the other debts, or made the pay- 
 ment so precipitately after the testator's death as to be evidence 
 of fraud. ( Toller, 192.) The means of obtaining that knowledge 
 now, are most ample. An executor or administrator can, in no 
 instance, be compelled even by the surrogate to pay any debt of 
 the testator or intestate until after six months shall have elapsed, 
 from the granting of letters testamentary or of administration. 
 (2 R. S. 116, § 18.) The statute seems to contemplate that he 
 cannot know with certainty the extent of the demands against the 
 estate so as to be able to pay without the order of the surrogate, 
 until after the expiration of the six months' notice inserted in the 
 newspapers, under the direction of the surrogate, and which notice 
 cannot be given until at least six months have elapsed from the 
 letters testamentary or of administration. {Nichols v. Chapman, 
 
PERSONAL ESTATE— THE PKIMAKY EUND, 291 
 
 9 Wend. 456, 457. 2 R. S. 88, 89. Fitzpatrick v. Brady, 
 6 Hill, 582.) 
 
 Hence, in the settlement of estates, when the testator or intes- 
 tate has been engaged in extensive business in his lifetime, and 
 was much indebted, and his solvency questionable, it would be 
 dangerous for an executor or administrator, without the order of 
 the surrogate, to make any payment in whole or in part of a debt 
 of the deceased, until after the expiration of six months from the 
 date of his letters ; and it is not deemed prudent to distribute the 
 assets until after the expiration of the year from the date of the 
 letters and the demands have been presented and allowed, in pur- 
 suance of the six months' notice before mentioned. The statute, 
 in truth, virtually allows the executors and administrators eighteen 
 months after the granting to them of letters to settle the estate, 
 for the purpose of securing more effectually the leading feature of 
 the system, to wit, a pro rata distribution of the assets among 
 the creditors in case of a deficiency. {Fitzpatrick v. Brady, 
 6 Hill, 682.) 
 
 There is much learning in the old books relative to pleading by 
 executors or administrators. They were bound to plead a debt of 
 a higher nature in bar of an action brought against them for a 
 debt of an inferior nature, and rie7is ultra, if he had not assets for 
 both, otherwise it would be an admission of assets to satisfy both 
 debts ; unless it appeared that he had no notice of the higher debt. 
 But all this doctrine is superseded by the revised statutes. {But- 
 ler V. Hempstead's Adm'rs, 18 Wend. 666.) 
 
 Where there is no will, or the will does not otherwise direct, the 
 personal estate, except in the cases which have been mentioned, is 
 the primary fund for the payment of debts and legacies. {Lup- 
 ton V. Lupton, 2 John. Ch. 614.) The usual clause devising all 
 the rest and residue of his real and personal estate not before de- 
 vised, is not sufficient to show an intention to charge the realty; 
 nor is a mere direction that all debts and legacies are to be fully 
 paid. {Id.) 
 
 Independently of any express statute regulation, it would be 
 the duty of the executor or administrator to convert the assets into 
 money, in order to pay the debts and legacies of the deceased. 
 The statute which declares this duty, permits this sale to be pub- 
 
292 SALE OF PERSONAL ASSETS. 
 
 lie or private, and, except in the city of New York, to be on credit, 
 not exceeding one year, with approved security. The executor or 
 administrator is not responsible for any loss happening by such 
 sale, when made in good faith, and with ordinary prudence. 
 (2 R. iS. 87, § 25.) 
 
 It would be unwise, if not improper, to give a credit which 
 might extend beyond the eighteen months allowed to the executors 
 or administrators to close their accounts. Great caution should 
 be practiced in taking security ; especially as both the giving of 
 credit and taking personal security, in cases of sales of property 
 held in trust, are innovations upon the practice of courts of equity. 
 
 In making such sales, such articles as are not necessary for the 
 support and subsistence of the family of the deceased, or as are 
 not specifically bequeathed, should be first sold ; and articles so 
 bequeathed, should not be sold until the residue of the personal 
 estate has been applied to the payment of debts. (Id. 26.) 
 This subject has already been adverted to in our chapter ion tak- 
 ing an inventory, and it has been shown that doubtful claims may 
 be compromised by the executor or administrator with the appro- 
 bation of the surrogate. {See ante, ch. 9, § 4.) 
 
 At common law the surrogate has no jurisdiction over the real 
 estate, nor could the real estate be sold by the executors or ad- 
 ministrators for the payment of debts. At present, when the per- 
 sonal representatives discover that the personal estate is insuffi- 
 cient for this purpose, they may, at any time, within three years, 
 after the granting of their letters testamentary or letters of ad- 
 ministration, apply to the surrogate for authority to mortgage, 
 lease or sell so much of the real estate of their testator or intes- 
 tate, as shall be necessary to pay such debts. This application 
 cannot ^e made until after the filing an inventory according to 
 law. (2 R. S. 100.) The object of this sale is to raise a fund 
 for the payment of debts. As this did not belong to the common 
 law jurisdiction of the surrogate, and has been conferred by stat- 
 ute, and as other tribunals have a jurisdiction in the collection of 
 debts against deceased persons to reach the real estate left by 
 them, the consideration of the practice of the surrogates' courts in 
 this respect, falls more appropriately under the third part of this 
 treatise. (See post. Part 3, ch. 1.) 
 
PAYMENT OF DEBTS. 293 
 
 After the payment of debts, the next duty of an executor is to 
 pay the legacies bequeathed by the • testator. This is a duty 
 which belongs more especially to an executor, but the rules by 
 which it is regulated are equally applicable to an administrator 
 cum testamento annexo. The court of chancery formerly, and 
 now the supreme court, has a jurisdiction over executors with re- 
 spect to legacies, more ample than that possessed by the surro- 
 gate. The jurisdiction of the latter court is subordinate to that of 
 the supreme court, and, in some respects, concurrent with it. The 
 further consideration of this branch of the subject belongs to the 
 third part of this treatise, which is devoted to subjects over which 
 surrogates have not an exclusive jurisdiction, and to some peculiar 
 statutory proceedings. 
 
 CHAPTER XII. 
 
 OP THE RIGHTS ANP DUTIES OP EXECUTORS AND ADMINISTRA- 
 TORS, WITH RESPECT TO THE PAYMENT OP THE DEBTS OP 
 THE DECEASED. 
 
 Section I. 
 
 Of the rights and duties of executors and administrators with 
 respect to calling for a presentation of claims against the 
 estate, and herein of enforcing payment before the time to 
 account. 
 
 The creditors of a deceased person have a stronger claim on the 
 property which he leaves at his death, than his legatees. Hence, 
 except in some special cases provided for by law, the debts must 
 be paid before legacies. 
 
 There may be cases where the assets are undoubtedly sufficient 
 to pay all the debts and legacies. In such a case, where all the 
 parties entitled as legatees and distributees are of full age, and 
 are willing amicably to settle the estate, no reason is perceived 
 why they may not do so without waiting for the expiration of the 
 eighteen months, which at present executors and administrators 
 
294 ADVERTISING FOE CLAIMS. 
 
 practically have for this purpose. But in doing so, they act at 
 their peril. 
 
 The statute, however, is made to embrace every class of cases, 
 in a great majority of which it is impossible to know at once, either 
 the condition and amount of the assets, or the nature and extent 
 of the claims against them. As the policy of the law is to cause an 
 equal pro rata distribution of the assets among all the creditors, 
 after satisfying certain preferences considered in the last chapter, 
 it was obviously necessary that some means should be adopted by 
 which the executors or administrators might ascertain the amount 
 of the claims against the estate before they could be compelled to 
 make payment, or a general distribution. 
 
 For this purpose, six months are allowed from the date of the 
 letters testamentary or of administration to collect the assets, and 
 to ascertain the extent of the claims against the estate. If within 
 this time the executor or administrator does not ascertain all the 
 demands against the deceased, and if he wishes, in due time, to 
 render an account and be discharged from further responsibility, 
 he may, at any time after the expiration of six months from the 
 date of his letters, insert a notice, once a week in each week for 
 six months, in some newspaper printed in the county, and in so 
 many other newspapers as the surrogate may deem most likely to 
 give notice to the creditors of the deceased, requiring all persons 
 having claims against the deceased to exhibit the same, with the 
 vouchers thereof, to the executor or administrator, at his place of 
 transacting business, to be specified in the notice, at or before the 
 day therein named, which shall be at least six months from the 
 first publication of the notice. (2 R. S. 88, k 34.) The usual 
 practice is for the surrogate, on the application of the executor or 
 administrator, in an informal way, after the expiration of six months 
 from the date of the letters, to enter an order in his minute book, 
 requiring the publication of notice as prescribed by law, and desig- 
 nating the paper or papers in which it is to be published. It is 
 a compliance with the law if published in a single paper, if that 
 be so ordered by the surrogate. {Dolbeer v. Casey, 19 Barb. 149. 
 Appendix, No. 69.) 
 
 Although not required by the statute, it is the most correct prac- 
 tice to file with the surrogate the aflSdavit of due publication of the 
 
ADVEETISING I'OR CLAIMS. 295 
 
 notices, in pursuance of tlie-former order, and to enter in the min- 
 ute book another order, directing the executor or administrator 
 to proceed and pay the different claimants the sums to which each 
 is respectively entitled. 
 
 Upon any claim being presented against the estate of the de- 
 ceased, the executor or administrator is authorized to require satis- 
 factory vouchers in support thereof; and also the affidavit of the 
 claimant that such claim is justly due, that no payments have been 
 made thereon, and that there are no offsets against the same, to the 
 knowledge of the claimant. This oath may be administered by any 
 justice of the peace or other officer authorized to administer oaths. 
 (2 R. S. 88, § 35.) 
 
 It is recommended to executors or administrators always to pur- 
 sue this course, and more especially, where their testator or intes- 
 tate has been, in his lifetime, engaged in extensive business. 
 ( Whitmore v. Foose, 1 Denio, 159.) 
 
 It would seem, by necessary implication, that if the executor or 
 administrator is satisfied of the validity of the claim and of the 
 amount due, from the vouchers and affidavit presented, he may 
 allow it and pay it, in the due course of administration, without 
 further proof. The statute seems not to have clothed the surro- 
 gate with jurisdiction to try a contested claim. {Dissosway v. 
 The Bank of Washington, 24 Barb. 60. Wilcox v. Smith, 
 26 id. 316.) Hence, if the executor or administrator, notwithstand- 
 ing the oath and vouchers, doubt the claim, there should be some 
 way pointed out for removing those doubts, or enabling the cred- 
 itor to assert his claim. This is done by the statute, which au- 
 thorizes the executors or administrators in such a case, with the ap- 
 probation of the surrogate, to enter into an agreement in writing 
 with the claimant to refer the matter in controversy to three dis- 
 interested persons, or to a disinterested person, to be approved by 
 the surrogate. On filing this agreement in the clerk's office of the 
 supreme court of the county in which the parties or either of them 
 reside, a rule may be entered, either in termor vacation, referring 
 the matter in dispute to the person or persons so selected. The 
 referees or referee so appointed proceed to hear and determine the 
 matter, and make their or his report therein to the court in which 
 the rule for their appointment is entered. (2 R. S. 88, 89, § 36, 
 
296 LIIMTATION— COSTS. 
 
 37, as amended in 1859, Laws, p. 569.) The subsequent practice 
 will be found in treatises on the practice of the supreme court, and 
 does not fall within the scope of this work. (Appendix, No. 70.) 
 
 If a claim is thus presented and disputed, and if the parties do 
 not agree to refer it, and if the claimant does not within six months 
 after it is rejected, if the claim is then due, otherwise, within six 
 months after the same or some part of it becomes due, commence 
 an action against the executors or administrators for the recovery 
 thereof, he is to be forever barred from maintaining any action 
 thereon. And no action after that period can be maintained 
 thereon by any person deriving title thereto from such claimant. 
 (2 R. S. 89, § 38.) 
 
 There are two cases which arise in this stage of the matter 
 which have often received the consideration of the courts ; the one 
 is with regard to the short statute of limitations, and the other 
 with regard to the question of the plaintiff's right to costs, and 
 out of what fund they are to be paid. Both these questions be- 
 long, in the first instance, to the court in which the action is tried, 
 namely) the supreme court, and neither of them can ever be litiga- 
 ted before the surrogate. The discussion of them does not fall 
 within the scope of this treatise ; and. therefore, a few remarks 
 only will be added : 1. If, on a demand being presented to an 
 executor or administrator pursuant to the statute, he asks time to 
 inquire into and examine it, he will not be allowed to avail himself 
 of the short limitation without giving decisive evidence of having 
 rejected it more than six months before the suit was brought. 
 {Reynolds v. Collins, 5 ERll, 36.) It is perfectly proper for the 
 executor or administrator to take time to investigate before decid- 
 ing ; but the statute giving the short limitation will not begin to 
 run till he has unequivocally rejected the claim. 2. With regard 
 to costs, it is now well settled that to entitle the plaintiff to costs 
 of the action against the executors or administrators, one of two 
 things must occur, to wit, either, 1. a refusal on their part to 
 refer the claim after they have disputed it, or 2. an unreasonable 
 resistance or neglect of payment, after it has been presented. A 
 mere rejection of the claim is not a substitute for a refusal to 
 refer. {Bullock v. Bogardus, 1 Denio, 276. Fort v. Gooding, 
 9 Barb. 390.) The dictum at page 394, " that an unqualified 
 
PRESENTING CLAIMS. 297 
 
 rejection of the claim, unaccompanied with an offer to refer, is 
 equivalent to a refusal to refer," is contrary to the introductory 
 part of the opinion, has frequently been overruled, and cannot be 
 supported. (-Sfee 12 Hmv. 282. 15 id. 304. 16 id. 407.) 
 
 If the executors or administrators omit to give the notice-, as 
 required by the statute, no laches is imputable to the creditor if 
 he fails to present his claim till after the year has expired from 
 the granting of letters. {Fort v. Gooding, supra.) No other 
 limitation can then be insisted on, but the ordinary statute of limi- 
 tations. {Plagg V. Ruden, 1 Bradf. 193.) The creditor is not 
 bound to exhibit the evidence of his claim, or make oath of the 
 justice of it, unless required to do so by the executors or adminis- 
 trators. ' ( Gansevort v. Nelson, 6 Hill, 389.) Nor does the omis- 
 sion of the latter to publish the notice to exhibit claims, subject 
 them, as a matter of course, to costs, in case the creditor prosecutes 
 them in the supreme court, and recovers judgment. {Bullock v. 
 Bogardus, supra. Russell v. Lane, 1 Barb. S. C. R. 627. 
 Fort v. Gooding, supra, overruling in this respect Harvey v. 
 Skillman, 22 Wend. 671.) Nor must the creditor wait until the 
 publication of notice, before exhibiting his claim. He may present 
 it any time after the appointment of the executors or administra- 
 tors, either with or without vouchers at his election. If the 
 executors or administrators desire to see the evidence of the claim, 
 or require an affidavit of the claimant, they must say so. ( Ganse- 
 vort V. Nelson, supra. Russell v. Lane, supra.) If, however, he 
 presents it before the publication of notice, and the notice to ex- 
 hibit claims be afterwards published, he should present it again 
 within the time limited for that purpose. ( Whitmore v. Foose, 
 supra.) 
 
 On the expiration of the six months notice, the executors or 
 administrators have a right to assume that the debts and claims 
 exhibited to them are all that exist against the deceased ; and 
 they are authorized to make payment upon that hypothesis. And 
 in case a suit should be brought against them on a claim not pre- 
 sented, in pursuance of the said notice, they are not chargeable for 
 any assets or moneys that they may have paid in satisfaction of 
 any claims of an inferior degree, or of any legacies, or in making 
 distribution to the next of kin, before such suit was commenced, 
 
 38 
 
298 OMISSION TO PRESENT CLAIMS. 
 
 but may prove such notice published as aforesaid, and payment 
 and distribution, in support of their plea of having fully adminis- 
 tered the estate of the deceased. The plaintiff in such action is 
 only entitled to recover to the extent of the assets unadministered 
 at the commencement of the suit, or he may take judgment of 
 assets in futuro. (2 R. S. 89, §§ 39, 40. Baggott v. Boulger, 
 2 N. Y. hup. C. R. 160. Parker's Ex'ts v. Gainer's Ex'rs, 
 17 Wend. 560. Allen and wife v. Bishop's Ex'rs, 25 Wend. 414.) 
 The ■whole administration seems to be committed to the surrogate, 
 and the common law courts are reduced to little more than instru- 
 ments of liquidation. {Per Cowan, J. 17 Wend. 650.) 
 
 The omission to exhibit a claim to the executor or administrator 
 within the time prescribed in the notice, does not bar the claimant 
 from recovering the same of the next of kin or the legatees to 
 whom the assets have been paid over by the executor or adminis- 
 trator. (2 R. S. 90, § 42.) The policy of the law is not so much 
 to defeat a just claim, as to protect persons acting in a representa- 
 tive capacity from being harassed with suits, and to fix a reason- 
 able limit to their liability. The remedy, in such cases, against 
 the distributees to whom the assets have been paid, cannot be ob- 
 tained in the surrogate's court, but must be prosecuted in a court 
 having jurisdiction, the supreme court, superior court, dec, as the 
 case may. What is necessary to be averred and proved in such 
 court, will be seen in the adjudged cases where various questions 
 have been discussed. {Schermerhorn v. Barhydt, 9 Paige, 28, 46. 
 Leonard v. Morris, Id. 93. Wilkes v. Harper, 1 Com. 586. 
 Mersereau v. Ryerss, 8 id. 261.) 
 
 A debt against the estate cannot with safety be paid by an 
 executor or administrator, within the first six months after the 
 date of the letters testamentary or of administration. If he pays 
 any thing before that time, he does it at his peril. If the assets 
 prove to be insufficient to pay all the debts, and he has, out of a 
 mistaken view of the matter, prematurely paid one, or more, his or 
 their whole claim, he will be responsible to the other claimants for 
 the excess thus paid, beyond the share to which they were enti- 
 tled. After the first six months, and even before the expiration of 
 the notice given in pursuance of the statute, the executor or ad- 
 ministrator may be compelled, by order of the surrogate upon 
 
EKFOROING JUDGMENTS. 299 
 
 the application of a creditor, to pay any debt or a proportional 
 part thereof. (2 R. S. 116, § 18.) The statute is not mandatory 
 upon the surrogate, but permissive. Such order, therefore, 
 should not be made by the surrogate, before the time limited for 
 exhibiting claims has elapsed, except it clearly appears that the 
 debt sought to be paid in advance of the other creditors is undis- 
 puted and not barred by the statute of limitations, and from the 
 condition of the assets, that the estate is amply sufScient to pay 
 all demands which probably exist against it. (Fitzpairick v. 
 Brady, 6 Hill, 581. McCartee v. Camel, 1 Barb. Ch. R. 456, 
 465. Kidd v. Chapman, 2 id. 424.) 
 
 It has already been stated, that the surrogate has no power, on 
 such an application, to try contested suits. {Dissosway v. The 
 Bank of Washington, 24 Barb. S. C. R. 60.) If there be a de- 
 fense to such a claim, it should be stated in due season, that the 
 claimant may rebut it. ( Van Veck v. Burroughs, 6 Barb. -341.) 
 
 Section II. 
 
 Of enforcing the payment of judgments against executors or 
 administrators. 
 
 There are three classes of cases which fall under our considera- 
 tion in discussing this subject. 1. Where the judgment has been 
 obtained against the testator or intestate in his lifetime, but no 
 execution issued before his death. 2. Where a judgment has been 
 obtained against executors or administrators for a debt of their 
 testator or intestate by default. 3. Where a judgment for a debt 
 of the deceased has been obtained against the executors or admin- 
 istrators after a trial at law on the merits. 
 
 In the first class of cases, viz. where the judgment was obtained 
 against the testator or intestate in his lifetime, and no execution 
 issued previous to his death, it is said no scire facias is necessary 
 to make the executors or administrators parties to the action, but 
 that an execution may be issued upon the judgment by order of 
 the surrogate, after an account shall have been rendered and set- 
 tled before him. (2 R. S. 88, §32. The People v. The Judges of 
 Albatiy Co., 9 Wend. 488 et seq. Butler v. Hempstead's Ex'rs, 
 18 Wend. 667. Box v. Backenstose, 12 id. 542.) The account 
 
300 ENFORCING JUDDGMENT. 
 
 here referred to is the final account which executors or administra- 
 tors can be required to render at the expiration of eighteen months 
 from the date of their letters. 
 
 The second class of cases is where a judgment has been ob- 
 tained against executors or administrators for a debt of their tes- 
 tator or intestate by default. This case falls within the same 
 rule. No execution can be issued upon the judgment against the 
 executors or administrators, until an account shall have been ren- 
 dered and settled, or unless on an order of the surrogate. And if 
 an account has been rendered to the surrogate by such executor 
 or administrator, execution shall issue only for the sum that shall 
 have appeared, on the settlement of such account, to have been a 
 just proportion of the assets applicable to the judgment. {See 
 same cases.) The account referred to here is believed to be the 
 final account of the executors or administrators. It is not believed 
 that it was intended by the legislature that the payment of the 
 judgment in either of the above classes, was to be anticipated by 
 any order of the surrogate. This will appear obvious when we 
 come to consider the next class of cases. 
 
 The third class is where a judgment for a debt of the deceased 
 has been obtained against the executors or administrators after a 
 trial at law on the merits. With respect to this class, it is enact- 
 ed, that where a creditor shall have obtained a judgment against any 
 executor or administrator, after a trial at law upon the merits, 
 he may, at any time thereafter, apply to the surrogate having ju- 
 risdiction for an order against such executor or administrator, to 
 show cause why an execution on such judgment should not be 
 issued. (2 R. iS. 116, § 19.) This is the only case in which the 
 surrogate has jurisdiction to order the issuing of an execution 
 against an executor or administrator, before the rendering of the 
 final accounts of the estate. In this case the application may be 
 made at any time. But in no case can it be issued without the 
 order of the court, either on special application or by the final 
 decree. 
 
 The proceedings are briefly stated in the statute. The surro- 
 gate to whom the application is made is required to issue a citation, 
 requiring the executor or administrator complained of, at a certain 
 time and place therein to be named, to appear and account before 
 
ENFOKOING JUDGMENTS. 301 
 
 him ; and if upon such accounting it shall appear that there are 
 assets in the hands of such executor or administrator, properly ap- 
 plicable under the provisions of the statute, to the payment in 
 whole or in part of the judgment so obtained, the surrogate is re- 
 quired to make an order that execution be issued for the 
 amount so applicable. (2 R. S. 116, § 20.) This order, by the 
 next section, is made conclusive evidence that there are sufficient 
 assets in the hands of the executor or administrator to satisfy the 
 amount for which the execution is directed to be levied ; and by 
 the following section it is provided, that if the whole sum for 
 which a judgment may have been obtained, shall not be collected 
 on the execution so directed to be issued, and assets shall thereaf- 
 ter come into the hands of the executors or administrators, the 
 surrogate is required to make another order for issuing execution 
 upon the application of the creditor, his personal representatives 
 or assignees, and to proceed in the same manner from time to time, 
 whenever assets shall come to the hands of the executors or ad- 
 ministrators, until the judgment is satisfied. 
 
 There may be an appeal from this order, but it is not to operate 
 as a stay of proceeding, unless security is given conditioned for the 
 payment of the whole sum directed to be levied, with interest, in 
 case the order appealed from is confirmed. (2 R. S. 116, § 21.) 
 There is no appeal from the order of the surrogate directing an 
 execution to be issued on any other judgment than after a trial at 
 law upon the merits. [Davies v. Skidmore, 5 Hill, 503.) It is 
 quite obvious that no appeal would be required except the appeal 
 from the final decree. As no separate order is made by the surro- 
 gate, directing execution to issue in advance of the final settle- 
 ment, there is nothing to appeal from. 
 
 The mode of obtaining an order from the surrogate for the pay- 
 ment of a debt, before the time for exhibiting claims has elapsed, 
 or for an order for the issuing execution against an executor or ad- 
 ministrator, after a trial at law on the merits, is by petition to the 
 surrogate, briefly stating such facts as would entitle the creditor 
 to the interposition of the court, and asking for the appropriate 
 rehef. The petition should be verified. On filing it, an order 
 should be entered in the minutes directing a citation to issue re- 
 
302 OF PAYMENT OF DEBTS. 
 
 quiring the executor or administrator, at a certain specified time 
 and place, to appear and account before him, and to show cause 
 why execution should not issue on the said judgment. 
 
 The statute does not prescribe the time of service ; it is, there- 
 fore, within the discretion of the surrogate, and should be governed 
 by the practice in analogous cases. 
 
 If the parties appear on the return of the citation, and the ex- 
 ecutors or administrators wish to contest the right of the plaintiff to 
 an execution to the whole or any part of the amount of the judg- 
 ment, or to the whole or any part of the debt, if the claim was not 
 reduced to judgment, they should interpose such answer in writing 
 as is adapted to the nature of the defense. 
 
 If the defense in either case contests the liability of the execu- 
 tors or administrators, on the ground of the original invalidity of 
 the claim, or sets up payment, the statute of limitations, or other 
 defense requiring a trial, the surrogate should, in my judgment, 
 dismiss the application, and leave the parties to their remedy by 
 action at law, or by reference, as the case may be. The only con- 
 test which the surrogate can entertain, in this stage of the pro- 
 ceedings, has reference to the state of the accounts and the condi- 
 tion of the assets. On the final accounting, where all parties 
 interested in the estate have notice, and have a right to be heard, 
 the surrogate must necessarily hear and decide such contests as 
 arise, as well with respect to the original validity of the claims 
 presented, as any legal or equitable defense that may exist to 
 them. 
 
 If disputed claims could be presented to the surrogate, in ad- 
 vance of the day for final settlement, and be heard and allowed by 
 the surrogate, it would be in the power of the party holding a dis- 
 honest, or a previously satisfied claim against the estate, to select 
 his own time, after the first six months from the date of the letters, 
 and before the expiration of the notice to the creditors. He would 
 thus obtain a hearing ex parte, and without any active collusion 
 with the executors or administrators^ obtain an order from the sur- 
 rogate for the payment of a demand, which might, perhaps, have 
 been disproved, had it been presented when the other parties in- 
 terested in the estate had notice. The most questionable claims 
 would be presented in this way. These reasons do not apply to a 
 
OF PAYMENT OF DEBTS. 303 
 
 case where a judgment has been obtained against the executors or 
 administrators after a trial at law on the merits; for in that case 
 all have had an opportunity to resist the recovery, and there is, 
 therefore, nothing left for the surrogate but to inquire into the 
 condition of the assets and the other claims upon them. 
 
 There is, however, respectable authority on both sides of this 
 question, and it does not yet seem to have been decided by the 
 court of appeals. (In addition to the cases before cited, see Cam- 
 hell V. Bruen, 1 Bradf. 125 et seq., and the dictum of Nelson, 
 Ch. J., in Butler v. Hempstead^s Adnirs, 18 Wend. 669. Day- 
 torHs Surrogate, 346, and note g, where numerous cases are 
 collected.) 
 
 When all the claims against the estate are ascertained, the ex- 
 ecutors or administrators should proceed with due diligence to pay 
 the debts of the deceased, and the legacies. If the assets are 
 ample for this purpose, he should pay all. In such a case, it will 
 not be necessary for.him to render an account before the surro- 
 gate, if the parties interested are of age and under no disa- 
 bility. If, however, the assets are insufficient to pay all the 
 debts, he must first satisfy the claims entitled to priority, and 
 make a pro rata distribution of the residue among the remaining 
 creditors. If he has a claim against the estate in his own behalf, 
 he must cause it to be allowed by the surrogate, on a citation to 
 the proper parties. (3 R. S. 175, 5th ed. L. of 1837, ch. 460, 
 § 37.) If there is property enough to pay the debts, and only a 
 part of the legacies, he must pay such as are entitled to a prefer- 
 ence by the will, or otherwise, and divide the balance among the 
 other legatees, on the principles applicable to such cases. If the 
 testator died intestate, the assets, after paying debts, must be dis- 
 tributed to the kindred according to the statutes of distributions. 
 In many instances this can be satisfactorily done without recourse 
 to legal proceedings. 
 
 We shall, in a subsequent chapter in the third part, treat of the 
 payment of legacies, and in another chapter, of the rendering the- 
 final account of executors and administrators, and of the rules by 
 which the estates of deceased persons are distributed among the 
 parties entitled thereto. The executors or administrators may 
 always settle the estate upon ^hose principles, without resort to 
 
304 OF PAYMENT OF DEBTS. 
 
 the courts, if the parties desire it. But as there are cases where 
 the rendering of a final account becomes indispensable, and the 
 subject is discussed in a subsequent chapter, it is deemed best, in 
 order to prevent repetition, to postpone, until then, the further 
 consideration of this branch of the subject. (For forms, see Ap- 
 pendix, Nos. 71, 72, &c. «fcc.) 
 
PART III. 
 
 OF SUBJECTS COGNIZABLE IN SUREOGATES' COURTS OF WHICH THEY 
 HAVE NOT EXCLUSIVE JURISDICTION, AND HEREIN OF VARIOUS 
 STATUTORY PROCEEDINGS IN THOSE COURTS. 
 
 IN the third section of part first of this treatise (ante, page 36,) 
 we stated the general jurisdiction of surrogates' courts as it is 
 defined in the revised statutes. In the second part we have 
 discussed the subjects over which surrogates have exclusive 
 original jurisdiction, and the method of proceeding therein. It 
 has been seen that those subjects fall within the first and second 
 branch of the section which declares the general jurisdiction of the 
 court, and that they relate mainly to matters testamentary and of 
 intestacy, and of whatsoever is incident thereto. That branch of 
 our subject is the most important, and calls the most frequently 
 for the exercise of the powers of the court. It has been treated 
 more fully and at large than will be necessary in considering the 
 other subjects over which the court, either in conjunction with, or 
 auxiliary to, other courts, or concurrently with them, exercises 
 jurisdiction. 
 
 In the third part we propose to treat of the practice of sur- 
 rogates' courts, in matters in which they have not exclusive 
 jurisdiction. In some of these cases the court exercises a common 
 law power, modified indeed by the statutes ; and in others it merely 
 performs a duty enjoined on it by statute. The object to be at- 
 tained by some of these proceedings is to enable executors and ad- 
 39 
 
3QQ SALE OF REAL ESTATE. 
 
 ministrators to acquire .a fund for the payment of debts by some 
 disposition of tlie real estate of the deceased ; in others to enforce 
 the payment of debts and legacies, and the distribution of the 
 estates of intestates; to appoint guardians for minors, to remove 
 them, to direct and control their conduct and to settle their accounts ; 
 and to cause the admeasurement of dower to widows. 
 
 We propose to treat of these subjects with more or less fullness 
 in separate chapters. 
 
 GHAPTEE I. 
 
 OF PROCEEDINGS BY EXECUTORS OR ADMINISTRATORS, ON 
 THEIR OWN APPLICATION, BEFORE THE SURROGATE, TO OB- 
 TAIN AUTHORITY TO MORTGAGE, LEASE OR SELL THE REAL 
 ESTATE OP THE DECEASED FOR THE PAYMENT OP DEBTS. 
 
 The surrogate has jurisdiction to grant authority to executors 
 or administrators to dispose of the real estate of the testator for 
 the payment of debts, on the application of the executors or ad- 
 ministrators in certain cases ; and he has also the like jurisdiction, 
 on the application of a creditor, when the executors or administra- 
 tors have failed to pay all the debts of the deceased, and have neg- 
 lected to apply within the time prescribed by law for an order on 
 their own behalf, for such sale or disposition of the realty, to com- 
 pel them to proceed and obtain such order. 
 
 Section I, 
 
 Of the time and manner of making application for authority to 
 sell, lease or m.artgage the real estate of the deceased, on the 
 application of the executors or administrators, and the pro^ 
 ceedings thereon, previous to granting the order of sale. 
 
 One of the natural consequences of the feudal principles, which 
 prohibited the alienation, and of course the incumbering the fief 
 with the debts of the owner, was to exempt the real estate of the 
 defendant, after judgment, from an execution against his lands. 
 The body of the debtor was liable to be imprisoned for debt, at a 
 
SALE OF REAL ESTATE. 307 
 
 time when his real estate could not be seised. Even lands de- 
 scended or devised were not, at common law, liable for the simple 
 contract debts of the ancestor or devisor, nor for his specialties, 
 unless the heir was expressly bound. Without adverting to the 
 changes in the law in this respect, in England, it is sufficient to 
 observe that the rule was abrogated in this state by the act of 
 1786, (1 Qreenl. 237,) and in all cases heirs were made liable for 
 the debts of their ancestor to the value of the lands descended, 
 whether the debts were created by simple contract or specialty, 
 or whether the heirs were named in the contract or not. The 
 same principle has hitherto been continued a part of our jurispru- 
 dence and extended to devisees. (2 R. S. 452, § 32.) But the 
 executors or administrators had not, at common law, any control 
 over the lands of their testator or intestate by virtue of their ap- 
 pointment. If, therefore, the personal assets were insufficient to 
 pay the debts of the deceased, the creditor was remediless until 
 some of the statutes allowed the real estate, or some interest in it, 
 to be reached by judgment and execution or by some other statu- 
 tory proceeding. 
 
 But, in this state, the same statute of 1786 which made the 
 lands of the ancestor liable for his debts in the hands of his heirs, 
 conferred on the court of probates the power of appropriating the 
 real estate of the deceased for the purpose of paying debts when- 
 ever it should be discovered that the personal estate was insuffi- 
 cient for that purpose. At the revision of the laws in 1800, the 
 same jurisdiction was extended with some limitations to surrogates 
 of the different counties. This system, together with various im- 
 provements adopted from time to time, and such others as were 
 suggested by the experience of near half a century, were incorpo- 
 rated into the revised statutes of 1830. Those statutes, and the 
 subsequent enactments on the same subject, contain all that is 
 necessary to notice in this connection. 
 
 By the existing law, executors or administrators of any deceased 
 person, after they shall have made and filed an inventory accord- 
 ing to law, if they discover the personal estate of their testator or 
 intestate insufficient to pay his debts, may, at any time, within 
 three years after the granting of their letters testamentary or of 
 administration, apply to the surrogate for authority to mortgage. 
 
g08 SALE OF REAL ESTATE. 
 
 lease or sell so much of the real estate of their testator or intestate, 
 as shall be necessary to pay such debts. They may also apply for 
 the sale of the interest of the deceased in any land held under a 
 contract for the purchase thereof. (2 R. S. 100, § 1, as amended 
 by act O/1830, p. 391. L. of 183T, ch. 460, § 40. 3 R. S. 186, 
 187, 5th ed.) 
 
 If the original application is made to the surrogate, within three 
 years from the date of the letters testamentary or of administra- 
 tion, it satisfies the requirement of the act ; and the sale and sub- 
 sequent proceedings may be completed after that period. This is 
 obvious from the language of the section, as well as from the pro- 
 visions of the fifty-third section, (2 R. iS. 109,) directing suits com- 
 menced against heirs or devisees, after the expiration of that time to 
 be stayed until the conclusion of the proceeding before the surrogate 
 for the sale of the real estate of the deceased. Before the revised 
 statutes, there was no legislative limitation of the period within 
 which an application for the sale of the real estate of the deceased 
 might be made; and this led to great abuses until they were 
 checked by the decision of Chancellor Kent in the case of Mooers 
 V. White, (6 J. Ch. R. 360,) and by the supreme court in Jackson 
 v. Robinson, (4 Wend. 436.) The chancellor thought that a 
 single year, after the executor or administrator had entered upon 
 his trust, was long enough to enable him io make the application, 
 and that it should not be made after that time. The supreme 
 court, without fixing any time, held that when the delay had been 
 fourteen years, it was an unreasonable delay, and the surrogate 
 ought not to have entertained the proceeding. But still they 
 thought his error, in that respect, could only be corrected by an 
 appeal. The statute, by fixing three years from the date of the 
 letters, has settled the question for all subsequent cases. 
 
 Formerly, and under the acts in force anterior to the revised 
 statutes, the -application might be made by any one of several ad- 
 ministrators, and by parity of reasoning, by any one of several 
 executors, without joining their associates. {Jackson v. Robinson, 
 4 Wend. 442, per Marcy, J.) But there is a change in the 
 phraseology of the revised statutes, giving the power to the exec- 
 utors or administrators, instead of conferring it as in the old 
 
SALE or REAL ESTATE. 309 
 
 statute on any one of the executors or administrators. Under the 
 revised statutes it has been held that all to whom letters testa- 
 mentary or of administration have been issued must unite in the 
 application, and an order of the surrogate, allowing a part of them 
 the authority, is erroneous. {Fitch v. Witbeck, 2 Barb. Ch. R. 
 161. Sanford v. Granger, 12 Barb. S. C. R. 392.) 
 
 The manner of presenting the application to the surrogate is by 
 petition, duly verified by affidavit. The petition should state, in 
 addition to the fact that an inventory had been returned according 
 to law, Ist. The amount of personal property which has come to 
 the hands of the executor or administrator; 2. The application 
 thereof; 3d. The debts outstanding against the testator or intes- 
 tate, as far as the same can be ascertained ; 4th. A description of 
 all the real estate of which the testator or intestate died seised, 
 with the value of the respective portions or lots, and whether 
 occupied or not, and if occupied, the names of the occupants ; and 
 5th. The names and ages of the devisees, if any, and of the heirs 
 of the deceased. (2 /?. (S. 100, § 2.) See Appendix, No. 84.) 
 
 The surrogate acquires jurisdiction of the subject matter by the 
 presentation of the petition and account. {Sheldon v. Wright, 
 1 Seld. 518, -per Foote, J. Sibley v. Wapfle, 2 Smith, 16 
 N. Y. Rep. 180.) Even previous to the revised statutes, it was not 
 required to recite the preliminary proofs on which the surrogate's 
 jurisdiction depended. {Sheldon v. Wright, supra.) The act of 
 1850, p. 117, was passed to relieve the proceedings in surrogates' 
 courts under the provisions of the statutes which we are consider- 
 ing, from the consequences of technical defects, not aifecting the 
 merits^ Hence, it puts sales conducted under the order of surro- 
 gates' courts upon the same footing as the like proceedings of courts 
 having original general jurisdiction ; and prohibits sales made in 
 good faith from being invalidated or impeached for any omission or 
 defect in any petition of any executor or administrator under the 
 statutes above referred to, provided such petition shall substantially 
 show that an inventory has been filed, and that there are debts, or 
 is a debt, which the personal estate is insufficient to discharge, and 
 that recourse is necessary to the real estate or some of it, whereof 
 the deceased died seised. It is, however, desirable that the peti« 
 
310 SALE OF REAL ESTATE--PAETIES. 
 
 tion should state, at least, all that is required in the revised 
 statutes. 
 
 Although the statement of the foregoing facts gives the surro- 
 gate jurisdiction of the subject matter, it does not confer jurisdic- 
 tion over the persons of the parties, whose rights are to be affected 
 by the contemplated disposition of the real estate of the deceased. 
 {Sheldon v. Wright, 1 Sold. 513.) Hence the necessity of a pro- 
 vision for notifying those interested with the pendency of the pro- 
 ceedings, and affording them an opportunity of shewing cause 
 against them. It is, as has been often well remarked by learned 
 judges, a great and fundamental principle in the administration of 
 justicCj that no man can be divested of his rights, until he has had 
 an opportunity of being heard. Corwin v. Merritt, 3 Barb. S. C. R. 
 345, and cases cited. Sheldon v. Wright, 1 Seld. 514.) 
 
 If, therefore, it appears to the surrogate by the petition, or other 
 competent evidence, that any of the devisees or heirs of the deceased 
 are minors, the surrogate is required immediately, and before 
 other proceedings, to appoint some disinterested freeholder guar- 
 dian of such minors, for the sole purpose of appearing for them, and 
 taking care of their interest in the proceedings. (2 R. S. 100, § 3.) 
 If the minors are within the county of the surrogate, they are to 
 be served with notice five days previously, of the intention to 
 apply for the appointment of a guardian, that they may be heard in 
 the selection of such guardian. (2 R. S. 100, § 4, as modified hy 
 the act 0/1837, ch. 460, § 38. 3 R. S. 187, 3th ed.) If, however, 
 the minor has a general guardian in the county of the surrogate, 
 such guardian is to be appointed the special guardian. (Id.) 
 Where the minor is under fourteen years of age, the notice must 
 be served on the person in whose custody he may be, or with 
 whom he may live, or on such relative as the surrogate shall 
 designate, instead of the service required by the foregoing section. 
 {Id.) (Appendix, Nos. 85, 86.) 
 
 It has been already stated in the first part of this treatise, that 
 the surrogate is required to keep a book in which all orders and 
 decrees made by him in relation to the sale of real estate should 
 be recorded. (2 R. S. 110, § 60, Part 1, § 57.) The order for 
 the appointment of a guardian ad litem should be entered in this 
 book, and a copy thereof, or a regular appointment, under the seal 
 
SALE OF REAL ESTATE— MINOES, 311 
 
 of the. court, be delivered to him. The foregoing requirement to 
 appoint the general guardian, guardian ad litem must be under- 
 stood with the qualification that such guardian has no interest ad- 
 verse to that of the minor, for if he has, some other discreet per- 
 son should be appointed. (2 Kent's Com. 229.) 
 
 It was the intention of the legislature which revised the stat- 
 utes, that the application should not be made to the surrogate for 
 the sale of the real estate of the deceased, until after the execu- 
 tors or administrators should have rendered an account of their 
 proceedings to the surrogate, and the same should have been al- 
 lowed and settled. (2 R. S. 100, § 1.) Although this would 
 have operated as a check against improvident sales, it would 
 have greatly increased the expense, and have postponed the com- 
 mencement of the application until after the expiration of eighteen 
 months from the date of the letters testamentary or of adminis- 
 tration. It was, therefore, altered by the act of 1830, and the 
 executors or administrators are now allowed to present their peti- 
 tion whenever they discover the personal estate of their testator 
 or intestate to be insufficient to pay his debts. 
 
 The petition having been presented, duly verified and filed, 
 and guardians having been duly appointed for such parties 
 in interest as are minors, the surrogate is required to proceed to 
 the further consideration of the matters. If it thus appears to 
 him that all the personal estate of the deceased, applicable to the 
 payment of debts, has been applied to that purpose, and that there 
 remain debts unpaid, for the satisfaction of which a sale may be 
 made under '^ the provisions of the statutes, he is required to make 
 an order, directing all persons interested in the estate to appear 
 before him, at a time and place therein to be specified, not less 
 than six weeks, and not more than ten weeks from the time of 
 making such order, to show cause why authority should not be 
 given to the executors or administrators applying therefor, to 
 mortgage, lease or sell so much of the real estate of the testator 
 or intestate, as shall be necessary to pay such debts. (2 R. S. 
 101, § 5.) The application of the personal estate to the payment 
 of debts, does not necessarily mean that it has actually been paid 
 over to the claimants, but set apart for them. Such seems to be 
 the meaning of the section as explained by the 41st section of the 
 
312 SALE OP EEAL ESTATE— CLAIMS. 
 
 act of 1837. {Ch. 460. 3 B, S. 189, § 19, 5th ed.) But the 
 surrogate, by tlie last mentioned section, is required to have satis- 
 factory evidence that the executor or administrator has proceed- 
 ed with reasonable diligence in converting the personal property 
 of the deceased into money, and applying the same to the payment 
 of debts. 
 
 The surrogate must not only acquire jurisdiction of the subject 
 matter by the presentation of the petition and account, but he 
 must also acquire jurisdiction of the persons of those whose rights 
 are to be affected by the sale, in order to render his subsequent 
 proceedings valid. This is done by the service of the order to 
 show cause on the parties, and in the manner prescribed by the 
 statute. {Sheldon v. Wright, 1 Seld. 513. Bloom v. Burdick, 
 
 1 Hill, 139. Corwin v. Merritt, 3 Barb. S. C. R. Ml.) 
 
 As the statute contemplates that the claims against the estate 
 should be exhibited, and either rejected or established before the 
 surrogate, on the day of showing cause, and that debts so estab- 
 lished shall not be again controverted, unless upon newly discov- 
 ered evidence, and upon due notice given to the claimant, it would 
 seem, on principle, that the order should require all persons hav- 
 ing claims against the estate, to exhibit and prove them before 
 the surrogate on the same day. Without such investigation, it 
 is impossible for the surrogate to decide, understandingly, upon 
 the necessity of a sale, and to satisfy the requirements of the 
 statute. This notice will not, however, supersede the necessity 
 of the notice required by the 40th section, after the sale 
 and the proceeds thereof have been brought into court. {See 
 
 2 R. S. 102, § 13. Id. 107, §§ 40, 41, 42. Appendix, Nos. 87, 
 88, 89.) 
 
 The mode of serving the order is prescribed by the act. It 
 must be published, for four weeks, in a newspaper printed -in the 
 county, and a copy served, personally, on every person in the oc- 
 cupation of the premises, of which a sale is desired, wherevet the 
 same may be situated, and on the widow and heirs, and devisees of 
 the deceased, residing in the county of the surrogate, at least four- 
 teen days before the day therein appointed for showing cause. 
 (2 R. S. 10, § 6.) 
 
 The widow, however, after her dower has been assigned, is not 
 
SALE OF REAL ESTATE. 313 
 
 a necessary party. By the assignment of her dower, the seisin 
 of the heir is defeated ab initio, and the latter is not after-wards 
 considered as having heen seised. The widow, after the assign- 
 ment, not holding under the heir, has no right to appear before 
 the surrogate to show cause why the lands of which her husband 
 died seised, should not be sold for the payment of his debts ; the 
 statute giving such right only to heirs and devisees, and persons 
 claiming under them. And an order of the surrogate, directing a 
 sale of the land assigned to the widow for her dower would be 
 void, so far as it related to such land. {Lawrence v. Brown, 
 1 Seld. 394.) 
 
 If such personal service cannot be made, or if such widow, heirs 
 or devisees do not reside in such county, but reside in the state, 
 then a copy of such order may be served personally, forty days be- 
 fore the day of showing cause, or by publishing the. same once in 
 each week, for four weeks in succession, in the state paper. If 
 such heirs or devisees do not reside within this state, or cannot be 
 found therein, the order must be published once in each week, for 
 six weeks successively, in the state paper ; or a copy thereof may 
 be personally served on them, at least forty days before the time 
 appointed therein for showing cause. (2 R. S. 101, § 7.) If any 
 of the heirs or devisees are minors, the order must be served on 
 their general guardian, or guardian ad litem, as the case may be. 
 It is this service of the order, either personally or by publication, 
 which gives to the surrogate jurisdiction of the persons interested 
 in the land sought to be sold. {Bloom v. Burdick, 1 Hill, 139.) 
 The act for the protection of purchasers of real estate upon sales by 
 order of the surrogate, passed March 23, 1850, {L. of 1850, p. 117,) 
 does not dispense with any requirement calculated to appraise the 
 heirs or devisees of the pendency of the proceedings. By requir- 
 ing the order to be treated as if made by a court of original gen- 
 eral jurisdiction, it shifts the burden of proof from the person 
 claiming under the sale to the party who attacks its regularity. 
 But if the jurisdictional facts be disproved, as, for instance, that 
 no notice was served or published, as required by law, though the 
 purchaser acted in good faith, the sale will be invalid. {Bloom v. 
 Burdicfc, supra, and cases before cited.) 
 
 At the time and place appointed in the order, and at such other 
 
 40 
 
314 SALE OF EEAL ESTATE. 
 
 times and places as the hearing shall be adjourned to, the surro- 
 gate, upon due proof of the service and publication of the order, as 
 required by law, should proceed to hear and examine the allega- 
 tions and proofs of the executors or administrators applying for 
 such authority, and of all persons interested in the estate, who 
 shall think proper to oppose the application. {2R. S. 101, § 8.) 
 
 In this stage of the proceedings the executors or administrators 
 should render a full account of their administration of th'e per- 
 sonal estate, unless they shall have before rendered and settled 
 their account under the preceding title of the revised statutes. 
 The surrogate is restrained from making an order aifecting the 
 real estate of the deceased, unless he is satisfied not only that the 
 personal estate of the deceased is insufiSci'ent for the payment of 
 the debts, but also that the executor or administrator has proceed- 
 ed with reasonable diligence in converting the personal property 
 of the deceased into money, and applying the same to the pay- 
 ment of debts. (2 R. S. 102, § 14 as modified hy L. of 183T, ' 
 ch. 460, § 41. 3 R. S. 189, 190, £>th ed. Moore v. Moore, 14 
 Barb. 27.) He must be satisfied that the debts, for the purpose 
 of satisfying which the application is made, are justly due and 
 owing, and that they are not secured by judgment or mortgage 
 upon, or expressly charged on, the real estate of the deceased ; 
 or if they be secured by a mortgage or a charge on a portion of 
 the estate, then that the remedies of the creditor, by virtue of such 
 mortgage or charge, have been exhausted. [Id. § 14.) As every 
 sale and conveyance made pursuant to these statutes is required 
 to be subject to all charges by ju'dgment, mortgage or otherwise, 
 upon the lands so sold, existing at the time of the death of the 
 testator or intestate, it was necessary that the creditor holding 
 such jugdment or incumbrance should not, by virtue of such 
 debt so charged, be an applicant for the sale of the lands on which 
 his debt is a lien. (2 R. S. 105, § 32.) 
 
 An order to sell the real estate of the deceased for the payment 
 of debts is a substitute for an action at law, against the heirs or 
 devisees, and is in fact a bar to such action, as far as relates to 
 the lands embraced in the order, (/d 109, § 53.) It presup- 
 poses a settlement of the accounts of the executors or adminis- 
 trators in relation to the personal assets, because the heirs or de- 
 
SALE OF REAL ESTATE. 815 
 
 visees are not liable for any debt of the deceased, unless it shall 
 appear that the personal assets of the deceased were not sufficient 
 to discharge them, and after due proceedings in the proper surro- 
 gate's court, and at law, the creditor has been unable to collect 
 such debt, or some part thereof, from the personal representatives 
 of the deceased, or from his next of kin or legatees. (2 R. S. 
 452, §s 32, 33.) And it is incumbent on the creditor seeking 
 to charge any heirs to show the facts and circumstances ,thu3 re- 
 quired, to render them liable. (2 R. S. 453, § 36.) 
 
 The statement of the accounts should be as full and ample as 
 is required on rendering a final account, and should be accompa- 
 nied with an account current. It should be sworn to, and sup- 
 ported by vouchers in the same manner as in analogous proceedings 
 in courts of equity. {Morris v. Mowat, 4 Paige, 143.) The 
 surrogate is invested with ample power to ascertain the truth. 
 In addition to such testimony as is admissible at common law, the 
 executors or administrators may be examined on oath, and wit- 
 nesses may be produced and examined by either party. Process 
 may be issued to compel their attendance and testimony in the 
 same manner and with the like effect as in cases of proving wills 
 before the surrogate. (2 R. S. 101, § 9.) At common law and 
 in equity a judgment against executors or administrators was not 
 evidence against the heir, there being no privity between the per- 
 sonal representatives and the heirs. {Ferguson v. Broom, 1 Bradf. 
 11. Baker v. Kingsland, 10 Paige, 366.) Of course, upon com- 
 mon law principles, such judgment would be no evidence before 
 the surrogate of a debt for which he could legally order a sale of 
 the real estate of the deceased. The act of 1837, ch. 460, § 72, 
 as modified by the act of 1843, ch. 172, permits the debt for which 
 the judgment or decree was obtained, notwithstanding the new 
 form it has assumed, to remain a debt against the estate of the 
 deceased to the same extent as before, and to be established in the 
 same manner as if no such judgment or decred*had been obtained ; 
 and if such judgment or decree was obtained upon a trial or 
 hearing upon the merits, it makes the same prima facie evidence 
 of such debt before the surrogate. It must be proved, how- 
 ever, in a legal manner by an exemplification ; a mere copy of the 
 docket is not sufficient. {Baker v. Kingsland, supra.) The 
 
316 SALE OF REAL ESTATE. 
 
 costs awarded against the executor, are not a charge against 
 the heirs for which the real estate can be sold. {Sanford v. Gran- 
 ger, 12 Barb. 392.) 
 
 As the code of procedure does not relate to the practice in sur- 
 rogates' courts, the rules with respect to the competency and 
 credit of witnesses and other testimony, are those which formerly 
 governed other courts, before the code, except where the legisla- 
 ture have expressly changed the rule, as we have seen they have 
 with respect to the executors or administrators, and judgments 
 against them for a debt of the testator or intestate, obtained after 
 a trial on the merits. 
 
 The surrogate's court is not well adapted to the trial of disputed 
 facts. No court where the judge must act in the five-fold capacity 
 of judge, jury, clerk, master and examiner, can reach the same 
 satisfactory result on a controverted question as is generally ob- 
 tained by a trial conducted according to the course of the common 
 law. This was wisely foreseen by the legislature, and hence the 
 provision that where, upon the hearing, a question of fact shall 
 arise, which in the opinion of the surrogate cannot be satisfactorily 
 determined without a trial by jury, he is authorized to award a feign- 
 ed issue, to be made up in such form as to present the question in 
 dispute, and to order the same to be tried at the next circuit 
 court to be held in such county. New trials may be granted by 
 the supreme court as in personal actions pending in that court, 
 and the final determination of such issue is made conclusive as to 
 the facts therein controverted, in the proceedings before the sur- 
 rogate. The costs of the failing party are to be paid on the order 
 of the surrogate, and the payment is to be enforced by him in the 
 same manner as other orders and de_crees. (2 R. S. 102, §§ 11, 12.) 
 
 The mode of making up the feigned issue, and the proceedings 
 therein, belong to treatises on the practice of the supreme court. 
 The abolitioh of feigned issues by the code, § 72, has no reference* 
 to this question, or to the practice in surrogates' courts. 
 
 If a creditor makes out a prima facie case of indebtedness of 
 the deceased in his lifetime, there are two classes of persons who 
 have a right to rebut that evidence : (1.) The heirs and devisees 
 have a direct interest in the question ; and to remove all doubt as 
 to their right to contest the validity of the claims presented, it is 
 
SALE OF KEAL ESTATE. 317 
 
 expressly enacted that it shall be competent for either one of the 
 heirs or devisees of the land in question, and for any person 
 claiming under them, to shew that the executors or administrators 
 have not proceeded with reasonable diligence in converting the 
 personal property of the deceased into money and applying the 
 same to the paymeut of debts ; to contest the legality and validity 
 of any debts, demands or claims which may be represented as ex- 
 isting against the testator or intestate ; and to set up the statute of 
 limitations as a bar to such claims. The admission of any such 
 claim so barred, by any executor or administrator, shall not be 
 deemed to revive the same, so as in any way to affect the real 
 estate of the deceased. (2 R. S. 100, § 10, as amended by § 72 
 of the act of 1837, ch. 460, and L. of 1843, ch. 172. Skidmore 
 V. Romain, 2 Bradf. 122. Ferguson v. Broom, 1 Bradf. 10. 
 Renwick v. Renwick, 1 id. 234. Wilcox v. Smith, 26 Barb. 
 iS. a R. 316.) 
 
 An equitable claim may be set up against the estate of the de- 
 ceased in cases of this kind, and an equitable defense may be made 
 not only to such equitable claim, but also to a legal claim. {Id. 
 and Matter of Renwick, 2 Bradf. 80.) 
 
 (2.) Any other creditor of the deceased has a right to appear 
 and contest the validity of any other claim. He has such an 
 interest in the fund as to entitle him to the aid of the court in pro- 
 tecting it. {Mooers v. White, 6 John. Ch. R. 360.) The pro- 
 ceeding before the surrogate to establish claims against the estate, 
 is analogous to that under the common decree in an administration 
 suit. In the latter case it was held by the master of the rolls, in 
 Shewen v . Vanderhorst, (1 Russell and Mylne, 347,) that it was 
 competent for any of the parties interested in the fund to set up 
 the statute of limitations in bar of the claim of a creditor seeking to 
 establish his debt before the master, although the executors refused 
 •to interfere. This decision was affirmed on appeal by Lord 
 Brougham, who remarked, that without saying how far the master 
 himself might be entitled to set up the objection, he could see no 
 reason why it might not be taken by a creditor, or a volunteer, as 
 well as by the personal representative. {Id. Moore v. Moore, 
 6 J. Ch. R. 360. Wilcox v. S7nith, 26 Barb. 316.) 
 
 If the executor or administrator has a claim in his own favor 
 
818 SALE OF REAL ESTATE. 
 
 against the estate, it should be presented at this time for allow- 
 ance. He has, by law, no right to retain for his own debt, nor is 
 his claim entitled to any preference over that of other creditors. 
 (2 R. S. 88, § 33. Treat v. Fortune, 2 Bradf. 116.) He must 
 make the same proof of the existence and validity of his claim as 
 is required of other creditors ; and the statute of limitations, and 
 any other valid defense, may in like manner be interposed against 
 it. ( Williams v. Purdy, 6 Paige, 166. Rogers v. Rogers, 
 3 Wend. 508.) Like any other creditor, he may remove the bar 
 created by the statute of limitations, by showing a recognition of 
 the debt by the deceased in his lifetime, within the period of limit- 
 ation, accompanied with a promise to pay it ; or, indeed, by such 
 proof as would in a court of law or equity take the debt out of the 
 statute of limitations. 
 
 A testamentary provision made by a testator for the payment of 
 debts generally, does not revive a debt upon which the statute of 
 limitations had taken effect before the testator's death. {Roosevelt 
 V. Mark, 6 J. Ch. R. 295.) 
 
 The testimony when taken by the surrogate in relation to any 
 claim against the estate should be in writing, subscribed by the 
 witness or party examined, and filed. This seems to be necessary 
 in order that it may be returned on an appeal, and thus enable the 
 appellate tribunal to review the decision of the surrogate. [Fitch 
 v. Witheck, 2 Barh. Ch. R. 161.) 
 
 The admissions of an executor or administrator of the validity of 
 a debt against the estate, or even a judgment against the executors 
 or administrators by confession or by default, is not evidence of the 
 debt ; nor is the latter, after a trial on the merits, only evidence 
 prima facie, and that by statute, as has .already been shown. 
 Every creditor of the estate, including the executor or administra- 
 tor, coming to establish his claims against the estate, must make 
 the usual oath that the debt is justly due to him from the estate, ' 
 after allowing all payments and all proper discounts and offsets. 
 And he must also produce to the surrogate legal evidence of the 
 existence of the debt, unless the same is admitted by those who 
 are interested in the estate. ( Williams v. Purdy, 6 Paige, 166.) 
 
 The demands which the surrogate shallj upon such hearing, 
 
SALE OF REAL ESTATE. 319 
 
 adjudge valid and subsisting against the estate of the deceased ; 
 or which shall have been determined to be valid, on the trial of 
 such issue, or which shall have been recovered against the exec- 
 utors or administrators by the judgment of a court of law, upon 
 a trial on the merits, are required to be entered in the book of his 
 proceedings, fully and at large, and the vouchers supporting the 
 same to be filed in his ofiBce. (2 R iS. 102, § 13.) Every order 
 allowing or disallowing a claim against the estate is the subject 
 of an appeal, to be taken within thirty days. (2 R. S. 610, § 107. 
 Branson v. Ward, 3 Paige, 189.) The order, therefore, should 
 be entered in the book for sales of real estate, with a schedule 
 subjoined containing a list of the claims allowed, as well as a list 
 of those rejected. (See Appendix, No. 89.) If the entry was 
 neglected at the time, it may be made subsequently nunc pro tunc. 
 {Farrington v. King, 1 Bradf. 182.) 
 
 After being satisfied that the executors or administrators have 
 fully complied with the provisions of the act relative to the admin- 
 istration of the personal assets, and to the service of the order to 
 shew cause, on all who are interested and entitled to such service, 
 in the manner required by law ; that the debts, for the purpose of 
 which the application is made, are justly due and owing, and that 
 they are not secured by judgment or mortgage upon, or expressly 
 charged on the real estate of the deceased ; or, if such debts are 
 secured by a mortgage or charge on a portion of such estate, then, 
 that the remedies of the creditor, by virtue of such mortgage, have 
 been exhausted ; that the personal estate of the deceased is insuffi- 
 cient for the payment of such debts, and that the executor or 
 administrator has proceeded with reasonable diligence in convert- 
 ing the personal property of the deceased into money, and applying 
 the same to the payment of debts. (2 R. S. 102, § 14, as modified 
 by the act o/1837, ch. 460, § 41. 3 R. S. 189, bth ed.) The sur- 
 rogate is required to ascertain, in the first place, whether sufficient 
 moneys for the payment of the debts can be raised by mortgaging 
 or leasing the real property of the deceased, or any part thereof. 
 (2 R. S. 102, § 15.) This inquiry is conducted in a summary 
 way. It is proper that the executors or administrators should 
 state, in their petition for the aid of the surrogate in the premises, 
 
320 ^-^^^ 0^ B.'EAL ESTATE. 
 
 the mode of disposition of the estate which they deem the best for 
 the interest of all concerned. (Appendix, No. 90.) 
 
 Before any order is granted by the surrogate for mortgaging, 
 leasing, or selling the estate, or any part thereof, the surrogate 
 must require adequate security from the executors or administra- 
 tors. In case the application is for mortgaging or leasing any real 
 estate, the security must be in a bond to the people of this state, 
 ■with sufficient sureties, at least two, to be approved by the surro- 
 gate, in a penalty double the amount to be raised by such mort- 
 gage or lease, conditioned for the faithful application of the moneys 
 arising from such mortgage or lease to the payment of the debts 
 established before the surrogate on granting the order, and 
 for the accounting for such moneys whenever required by such 
 surrogate, or by any court of competent authority. If the order 
 applied for is to sell real estate, the surrogate must require abend 
 in like manner, and with sureties as above directed, in a penalty 
 double the value of the real estate ordered to be sold, conditioned 
 that such executors or administrators will pay all moneys arising 
 from such sale, after deducting the expenses thereof, and will de- 
 liver all securities taken by them on such sale, to the surrogate, 
 within twenty days after the same shall have been received and 
 taken by them. (2 R. & 103, §§ 21, 22.) See Appendix for form. 
 No. 93. 
 
 In case of the refusal or neglect of the executors or administra- 
 tors applying for such order, to execute, within a reasonable time, 
 any bond required as above, the surrogate is required to appoint a 
 disinterested freeholder to execute such mortgage or lease, or to 
 make such sales, who are to execute a bond, similar in all respects 
 to that required of the executors or administrators, in whose place 
 he is appointed. {Id. § 23.) In making this appointment, the sur- 
 rogate should give preference to any person nominated by the 
 creditors of the deceased. {Id.) 
 
 The person so appointed, on executing and filing the bond, is 
 vested with all the powers and authority, and liable to all the duties 
 appertaining to executors or administrators in relation to the 
 mortgaging, leasing or sale of the real estate of the deceased. 
 {Id. 24.) 
 
 These bonds, when executed, it will be remembered are to be 
 
SALE OF EEAL ESTATE. 321 
 
 proved or acknowledged in the manner in which deeds are to be 
 proved or acknowledged, in order to be recorded. 
 (See Appendix, Nos. 106, 107, 108.) 
 
 Section II. 
 
 Of granting an order for mortgaging, leasing or selling, the 
 real estate of the deceased, and the proceedings thereon to the 
 consummation thereof. 
 
 After the executors or administrators, or the person designated 
 to act in their default, have complied with all the requirements of 
 the act, it is the duty of the surrogate to make an order for mort- 
 gaging, leasing, or selling the real estate of the deceased. 
 
 The provision, with respect to raising money to pay debts by a 
 mortgage or lease of the lands of the deceased, was first given by 
 the act of 1810, page 10. (Jackson v. Irwin, 10 Wend. 448, per 
 Savage, Ch. J.) It was restricted to cases where there were in- 
 fants interested in the real estate; and the lease was not to be for 
 a longer time than until the youngest person interested in the es- 
 tate should become twenty-one years of age. This provision was 
 contained in the revised law of 1813, {vol. 1, 453. § 18,) and the 
 authority to direct a lease or mortgage, was made dependent on 
 the opinion of the court of probate or surrogate, that such lease or 
 mortgage would be advantageous to the owners of the estate. The 
 revised statutes do not contain a limitation of the power to raise 
 money by lease or mortgage, to cases where infants are interested 
 in the estate, but they restrict the duration of the lease, in case 
 there are infants, to the period when the youngest infant becomes 
 twenty-one years old ; thus retaining, in this respect, this feature 
 of the original act of 1810. It is presumed that money may be 
 raised by lease or. mortgage, under the order of the surrogate, as 
 well where all the parties interested are adults, as where the 
 whole, or any part of them, are infants. 
 
 There may be cases where it would be for the interest of the 
 parties to raise the money in this way. If the sum to be raised is 
 not large, and the heirs are of age, or nearly so, it would probably 
 diminish the expense, and be most beneficial, to raise the money 
 by mortgage or lease. Such security is equally valid as if made 
 41 
 
322 SALE OF EEAL ESTATE. 
 
 by the testator or intestate, in his lifetime ; and the executors or 
 administrators are not required to make any report of the terms 
 of the lease or mortgage, but may execute the same -without any 
 further order of the surrogate. Nor are they required to adver- 
 tise the premises, but may make a private agreement for such 
 mortgage or lease. The money so raised is not required to be 
 brought into court. Nor is the surrogate to make any order for a 
 distribution of it ; but it is to be received by the executors or ad- 
 ministrators, and applied by them towards the satisfaction of the 
 debts, established before the surrogate on the granting of the or- 
 der. (2 R. S. 103, §§ 16, 17, 21.) The surrogate has no per 
 centage on the distribution of moneys arising from a mortgage or 
 lease given in pursuance of the order. (2 R. S. 642.) The fund 
 thus raised is distributable by the executors or administrators, and 
 they are liable to be cited and compelled by the surrogate to pay 
 the debts of the deceased, established at the time the order was 
 made, and to account for the proceeds of the said lease or mort- 
 gage, in the same manner as if the real estate thus leased or 
 mortgaged had been originally personal estate. Obedience to 
 such order may be enforced by imprisonment, as on a final account, 
 or by a. suit at law on the bond. (2 R. S. 106, § 34.) 
 
 The legislature which enacted the revised statutes, in 1830, in- 
 tended, no doubt, to give a preference to a lease or mortgage over 
 a sale, as a means of raising the necessary funds. At that time, 
 the remedy to enforce the collection of rents was by distress. 
 Since then the constitution of 1846 has prohibited any lease or 
 grant of agricultural land for a longer period than twelve years, 
 where any rent is reserved. {Const. Art. 1, § 14.) And the 
 legislature has abolished distresses for rent. It is less advanta- 
 geous now to raise money by a lease, than it was when the act 
 was originally framed. And it is a proceeding that is very rarely 
 resorted to. 
 
 If it appears to the surrogate, as it generally will, that the 
 moneys required cannot be raised by mortgage or lease advanta- 
 geously to the estate, it is then the duty of the surrogate, from 
 time to time, to order a sale of so much of the real estate, whereof 
 the testator or intestate died seised, as will be sufficient to pay the 
 
SALE OF REAL ESTATE. 323 
 
 debts, whicli the surrogate shall have entered in his book as 
 valid and subsisting. (2 R. S. 103, § 18.) The debts thus es- 
 tablished are in the nature of a judgment. 
 
 The sale, under the order of the court, can only affect the title 
 which the deceased had at the time of his death. The purchaser 
 takes it subject to all prior incumbrances and liens. The surro- 
 gate has no power to settle a question of conflicting titles, though 
 he may suspend the execution of the order of sale until those dis- 
 putes are adjusted by the proper tribunal ; or, if those interested 
 in the estate prefer it, he may direct the sale to go on, subject to 
 all incumbrances. {Hewitt v. Hewitt, 3 Bradf. 265.) 
 
 The order, when drawn up, should be entered in the book of 
 sales of real estate. It should recite enough of the proceedings to 
 give the court jurisdiction, both of the subject matter and of the 
 persons of the heirs and devisees, and, in general, to show a com- 
 pliance on the I part of the executors or administrators, with the 
 requirements of the statute. {Atkins v. Kinman, 20 Wend. 250, 
 per Cowen, J. and see Appendix fw form of the order.) 
 
 Since the passing of the act of 1850, for the protection of purchas- 
 ers of real estate upon sales by order of the surrogate, {L. of 1850, 
 p. 117,) the title of purchasers in good faith cannot be impeached 
 by reason of any omission, error, defect, or irregularity in the pro- 
 ceedings before the surrogate, or by an allegation of want of 
 jurisdiction on the part of the surrogate, except in the man- 
 ner, and for the causes, that the same could be impeached or 
 invalidated in case such sale had been made pursuant to the order 
 of a court of original general jurisdiction. These orders are, 
 therefore, substantially placed on the same footing with orders for 
 the sale of real estate, in analogous cases, by the late court of 
 chancery or the supreme court. Nevertheless, it is desirable that 
 they should contain, in brief terms, a recital of the proceedings 
 which led to the granting of them. 
 
 There are some statutory requirements with regard to the con- 
 tents of the order, and the direction which it shall contain, bor- 
 rowed from the practice of the courts of equity. Thus, if the real 
 estate consists of houses or lots, or of a farm, so situated that a 
 part thereof cannot be sold without manifest prejudice to the heirs 
 or devisees, then the whole, or a part thereof, although more than 
 
324 ' SALE OF KEAL ESTATE. 
 
 may be necessary to pay such debts, may be ordered to be sold ; 
 and if a sale of the whole real estate shall appear necessary to 
 pay such debts, it may be ordered accordingly. (2 R. S. 103, 
 § 19. Jackson v. Irwin, 10 Wend. 441.) 
 
 The order must, in all cases, specify the lands to be sold, and 
 the surrogate may direct the order in which several tracts, lots 
 or pieces, shall be sold. If it appears that any part of the real 
 estate of the deceased has been devised, and not charged in such 
 devise with the payment of debts, the surrogate is required to or- 
 der that the part descended to heirs shall be sold before 
 that devised. If it appears that any lands, devised or descended, 
 have been sold by the heirs or devisees, then the lands remaining 
 in their hands unsold, shall be ordered to be first sold ; and in no 
 case shall land devised, expressly charged with the payment of 
 debts, be sold under any order of a surrogate. {Id. § 20. Eddy 
 V. Traver, 6 Paige, 521.) These principles are the same as those 
 adopted by courts of equity in marshalling securities among cred- 
 itors, and of assets amongst parties in distribution. ( Willard's 
 Eq. Juris. 337. Id. 561.) 
 
 Under the statute of 1801 it has been supposed that the execu- 
 tors or administrators might sell at private as well as at public 
 sale. They must, however, have sold for ca^h. {Jackson v. Irvin, 
 10 Wend. 446, per Savage, Ch. J. Maples v. Howe, 3 Barb. Ch. 
 R. 611.) The present statute, however, requires the sale to be 
 in the county where the lands are situated, and at public vendue, 
 between the hour of nine in the morning and the setting sun of 
 the same day. (2 R. S. 104, § 26.) And the sale may be on a 
 credit, not exceeding three years, for not more than three-fourths 
 of the purchase money, as shall seem best calculated to produce 
 the highest price, and as shall have been directed by the surro- 
 gate, or shall be approved by him ; the moneys, when the sale 
 is on credit, are to be secured by a bond of the purchaser, and a 
 mortgage of the premises sold. {Id. k 28.) It was said by the 
 chancellor, in Maples v. Howe, supra, that when the creditors 
 wish to have the property sold on credit, the most proper course 
 would be to suggest it to the surrogate at the time of making the 
 order, so that he might inquire into the situation of the property, 
 and the claims of the various creditors, and give the proper direc- 
 
SALE OF KEAL ESTATE. 325 
 
 tions. Although the wishes of the creditors in this respect should 
 not be entirely disregarded, yet it is believed that the surrogate 
 can, against their recommendation, authorize a credit within the 
 limits of the act, if he believes that course best calculated to pro- 
 duce the highest price. This order ought to be obtained from the 
 surrogate before the sale is made. 
 
 Whenever a sale is ordered, a duly authenticated copy of the 
 order should be delivered to the executors or administrators, and 
 it then becomes their duty to cause the premises embraced in the 
 order to be sold at public auction. For this purpose notice of the 
 time and place of holding the sale is required to be posted for six 
 weeks at three of the most public places in the town or ward where 
 the sale shall be had ; and to be published in a newspaper, if there 
 be one printed in the same county, and if there be none, then in 
 the state paper for six weeks successively. The lands and tene- 
 ments must be described in the notice with common certainty, by 
 setting forth the number of the lots, and the name or number of 
 the township or towns in which they are situated. If the premises 
 cannot be so described, they must be described in some other 
 appropriate manner, and in all cases the improvements thereon, if 
 any, must be stated. (2 R. S. 104, § 25.) 
 
 As a departure from the requirements of the statute in conduct- 
 ing these sales, will always cast a cloud over the title, even when 
 it does not invalidate it, a strict and cautious obedience to these 
 directions should be followed by the executors or administrators. 
 
 When the sale is made, the terms of it should be reduced to 
 writing and be subscribed by the purchaser. It should always be 
 a condition that a deed is not to be given until an order of confirm- 
 ation shall have been granted by the surrogate. 
 
 It is a wise principle in morals, as well as in equity jurispru- 
 dence, that a man standing in confidential relations to others should 
 refrain from so acting that his self interest would conflict with his 
 integrity. The law, therefore, prohibits a party from purchasing, 
 on his own account, that which his duty or trust requires him to 
 sell on account of another, and from purchasing on account of 
 another that which he sells on his own account. ( Willard's Eq, 
 Juris. 605, 606, and cases there cited.) The statute has applied 
 these principles to the sales under the order of the surrogate, and 
 
326 SALE OF REAL ESTATE. 
 
 prohibited tKe executors or administrators, and the guardian of 
 any minor heirs of the deceased, from becoming a purchaser, 
 directly or indirectly, or from being interested in the purchase of 
 any part of the real estate so sold. All sales made contrary to 
 the provisions of that section of the act are declared to be void ; 
 but, an exception is made in favor of a purchase by a guardian for 
 thebenefit of his ward. (2 R. S. 105, § 27.) 
 
 The sale having been duly made, it is then the duty of the ex- 
 ecutors or administrators, or other person by whom the sale was 
 conducted, to make a return of their proceedings, upon the order 
 of sale, to the surrogate granting the same. This return should 
 be in writing ; and should set forth the circumstances attending 
 the sale, and the facts showing a compliance with the statute, and 
 be accompanied with affidavits of due service and publication of 
 the notice of sale. The return should be verified by the affidavit 
 of the executors or administrators, or of the person who conducted 
 the sale. (2 R. S. 105, § 29.) 
 
 The statute evidently contemplates that parties may appear 
 before the surrogate and oppose this confirmation, and apply to 
 open the biddings. It has, however, made no provision for notice 
 to be given of the time when the return will be made. If no one 
 objects to the confirmation, and the proceedings appear to have 
 been regularly and fairly conducted, the surrogate has a right to 
 assume that the executors or administrators represent the parties 
 in interest, and he will be warranted in confirming the sale, and 
 directing conveyances to be executed. But the heii's may desire 
 to be heard against a confirmation, and the ' purchaser against the 
 opening of the biddings. Perhaps the better remedy for supply- 
 ing this omission is that suggested by the chancellor in Delaplaine 
 V. Lawrence, 10 Paige, 604, that such of the parties as wish to 
 be heard should file a caveat with the surrogate, and request that 
 he might be notified of the time of hearing. This is analogous to 
 the proceedings before masters under the old chancery practice, 
 when sales were conducted by them. The purchaser was entitled 
 to a hearing upon the question whether the sale should be set 
 aside or confirmed. {Id.) 
 
 On receiving the return, the surrogate is required to examine 
 the proceedings ; and for this purpose, he may examine the 
 
SALE OF REAL ESTATE. 327 
 
 executors or administrators, or any other person on oath touching 
 the same. If he is of opinion the proceedings are unfair, or that 
 the sum bid is disproportionate to the value, and that a sum ex- 
 ceeding such bid, at least ten per cent, exclusive of the expenses 
 of a new sale, may be obtained, he is required to vacate the sale 
 and direct that another be had. The subsequent sale, if ordered, 
 must be conducted in all respects like that on the first order, and 
 be had under the like notice. (Id. § 29.) (For forms of order of 
 sale, report and order of confirmation, see Appendix, Nos. 90, 
 91, 92.) 
 
 This practice of opening biddings and directing a re-sale of the 
 premises, is borrowed from that of the court of chancery, and 
 should be exercised with great caution. {Duncan v. Dodd, 
 2 Paige, 99.) A suspicion on the part of the bidders that the sale 
 will not be confirmed and that the premises will be again exposed 
 to sale, tends to repress competition, and to dampen the ardor of 
 those who conduct the sale. In England it is almost a matter of 
 course to open the biddings, on a master's sale, before the con- 
 firmation of his report, upon the offer of a reasonable advance on 
 the amount bid, and the payment of the costs and expenses of the 
 purchase. As a general rule, an advance of ten per cent is suf- 
 ficent to authorize a re-sale ; but the biddings will not be opened 
 when the amount of the advance is less than forty pounds sterling. 
 (4 Mad. Ch. R. 460.) The policy of the English practice was 
 strongly questioned by Lord Elden in Williams v. Attleborough, 
 Turner's Rep. 75, and it has been adopted in this state only in 
 cases where the reasons for the equitable interposition of the court 
 are strong and powerful. [Duncan v. Dodd, supra, and cases 
 there cited. 3 John. Ch. R. 292.) In a recent case in the court 
 of appeals, it was held that to authorize the vacating of the sale, 
 it must be made to appear, either that it had ^been unfairly con- 
 ducted, or that the sum bid was disproportionate to the value of 
 the property, and that at least ten per cent, exclusive of the 
 expenses of the new sale, may be .obtained in addition to the 
 sum bid. Both must concur ; because, if the sum bid is not 
 disproportionate to the value, the sale should not be set aside 
 on an offer of ten per cent more. The object is not speculation. 
 
328 SALE OF KEAL ESTATE. 
 
 but to obtain tbe fair value of the property. {Kain v. Masterton, 
 2 Smith, N. Y. Rep. 175. Dalaplaine v. Lawrence, 3 Comst. 301.) 
 
 If, however, it appears to the surrogate that the sale was 
 legally made and fairly conducted, and that the sum bid was not 
 disproportionate to the value of the property sold, or, if dispropor- 
 tionate, that a greater sum than at least ten per cent, exclusive of 
 the expenses of a new sale, cannot be obtained, he is required to 
 make an order confirming the sale, and directing conveyances to be 
 executed. {Horton v. Hortm, 2 Bradf. 200. 2 R. S. 105, § 30.) 
 
 It must be here remembered that the sales and conveyances are 
 subject to all charges by judgment, mortgage, or otherwise, upon 
 the lands so sold, existing at the time of the death of the testator 
 or intestate. {Id. § 32.) And hence, if the testator charges the 
 payment of his debts on his real estate, by his last will and testa- 
 ment, the surrogate has no jurisdiction to order a sale of the 
 lands so charged. The remedy of the creditor to enforce such 
 charge is in equity. Hence, too, if there be legacies charged upon 
 the real estate, the purchaser takes his title subject to the pay- 
 ment thereof. 
 
 With respect to what direction in a will constitutes a valid 
 charge upon the real estate, in favor of creditors or legatees, a 
 few words only can be added. The limits of this treatise will not 
 admit of a full discussion of it, and it belongs more appropriately 
 to works on equity jurisprudence, and the doctrine of wills. In 
 general, it may be said, that the personal estate is the primary 
 fund to pay both debts and legacies, and that a mere direction in 
 the will to the executors to pay the debts of the testator, or the 
 legacies, is not sufficient to charge the real estate. {Lupton v. 
 Lupton, 2 J. Ch. R. 614, 624.) There must be some other lan- 
 guage, in the absence of an express charge, as where the testator 
 devises his estate, " after payment of debts," or " his debts being 
 first paid," or the like. (2 Store's Eq. Juris. § 1246. Willard's 
 Eq. Juris. 487 to 490. Jarman on With, ch. 46, 2 vol. 364, et seq. 
 Perkins ed. and the cases cited and notes. Reynolds v. Reynolds, 
 2 Smith, 259, 16 N. Y. Rep.) The usual clause in a will devising 
 and bequeathing the residue is not alone sufficient to make either 
 the debts or legacies a charge upon the realty. Nor is the blend- 
 ing of the real and personal estate in one devise in the same 
 
SALE OF REAL ESTATE. 329 
 
 clause in the will. {Reynolds y. Reynolds, supra.) In all the 
 cases where the lands covered by a residuary devise have been 
 held chargeable, there has been something besides a mere bequest 
 or direction to pay debts. (iS'ee Lupton v. Lupton, supra, and 
 the cases before cited.) Such was the case in Awbrey v. Mid- 
 dleto?i, 2 Eq. Ca. Abr. 497. Mirehouse v .Scaife, 2 Mylne arid 
 Cr. 695, and l^ewis v. Darling, 16 Howard's U. S. Rep. 1. 
 
 But the sale under the order of the surrogate extinguishes all 
 claim for dower of the widow of the testator or intestate. (2 R. iS. 
 105, § 31.) If the widow of any former owner of the land has a 
 claim therein for dower, it remains unaffected by the sale, and her 
 remedy continues against the land as before. It is the dower 
 only of the widow of the testator or intestate that is cut off by 
 the sale, and for which an adequate compensation is subsequently 
 made. But if the dower has been assigned to the widow before 
 the sale, it cannot be sold under the order, so as to affect her. 
 {Lawrence v. Miller, 2 Com. 245.) The land should then be sold 
 subject to her life estate therein. {Maples v. Howe, 3 Barb. 
 Ch. R. 611.) 
 
 The conveyances are to be executed by the executors or admin- 
 istrators, or by the person appointed by the surrogate to make 
 the sale. They are required to contain and set forth, at large, 
 the original order authorizing a sale, and the order confirming the 
 sale, and directing the conveyance. For this purpose, therefore, a 
 copy of the order confirming the sale and directing a conveyance, 
 duly authenticated under the seal of the court, should be delivered 
 to the person conducting the sd,le. {Id. § 31. See Appendix, No. 
 94, for form of deed.) 
 
 The effect of the statute of 1850, ch. 82, upon the regularity of 
 sales in cases of this kind has already, been noticed. It is desir- 
 able to avoid the irregularities alluded to in the statute, as they 
 will always form a cloud upon the title. (3 R. S. 192, 5th ed.) 
 
 It has already been observed, that the surrogate is authorized 
 from time to time to order a sale of so much of the real estate 
 whereof the testator or intestate died seised, as shall be sufficient 
 to pay the debts, which he shall have entered in his book, as 
 valid and, subsisting. (2 R. S. 103, § 18.) If the avails of the 
 first sale are not sufficient for this purpose, a further order of sale 
 42 
 
330 SALE OF CONTRACT OP PUEOHASE. 
 
 may be made, without 'commencing an original application. Tte 
 executors or administrators in such a case, apply on the foot of the 
 first decree. Such application can be made after the lapse of 
 three years from the date of the letters testamentary or of admin- 
 istration, if the original application was made within that period. 
 It is, in effect, but a continuation of the same proceeding. (Ap- 
 pendix, 104, 105,) 
 
 The authority imparted by the surrogate's order to an executor 
 or administrator, to sell the real estate of the deceased, is a mere 
 naked power, not coupled with any interest. A contract, therefore, 
 by an administratrix to convey lands of her intestate, when a 
 surrogate's order for that purpose should be obtained, does not 
 vest an interest, though an order be afterwards obtained. Such a 
 contract is void, and incapable of being enforced either at law or 
 in equity, not only on account of a want of interest in the adminis- 
 tratrix, but also as being contrary to pulslic policy. (3 Cowen, 
 302, per Sutherland J.) 
 
 The proceedings do not abate by the death of the executors or 
 administrators, or other person named in the order, or their remov- 
 al or disqualification, while the order of sale remains unexecuted 
 in whole or in part. The surrogate is authorized to empower the 
 administrator de bonis non of the original testator or intestate, 
 with the will annexed, or otherwise, or a disinterested freeholder, 
 as in the case of the original order, to execute the said order in 
 the same manner and with the like effect, as if such death or dis- 
 ability had not occurred, on their giving the like security. {Law 
 of 1850, ch. 160.) 
 
 The provisions of the statute relative to the lease, mortgage or 
 sale of the real estate of the deceased for the payment of his debts, 
 which have hitherto been considered, are confined to the real 
 estate of inheritance of which the deceased was legally seised, at 
 the time of his death. A mere chattel interest or an estate pur 
 auter vie, vests in the executors or administrators as assets, with- 
 out any order of sale from the surrogate. (2 R. S. 82, § 6, sub. 1.) 
 
 It remains, therefore, to consider that species of interest in land 
 which arises from a contract of purchase, by the deceased in his 
 lifetime, before the legal title is conveyed by the vendor. This 
 
SALE. OF CONTRACT OF PURCHASE. 331 
 
 interest receives its denomination from the quantity of estate pur- 
 chased. If that is an estate of inheritance, the title which passes 
 to the purchaser is deemed an equitable freehold of inheritance, 
 and subject to the rules of descent which govern the transmission 
 of a legal freehold of inheritance. (1 R. S. 754, § 27.) If, therefore, 
 the testator or intestate is possessed of a contract for the purchase 
 of land, and dies before a title is conveyed to him by the vendor, 
 his interest under such contract and in such land descends to his 
 heirs, and does not vest in his executors or administrators. The 
 heirs alone can complete the purchase ; though they had, at 
 common law, a right to compel the executors or administrators to 
 pay the purchase money, left unsatisfied by the deceased out of 
 the personal estate. {Champion v. Brown, 6 .7. Ch. R. 398.) 
 
 The statute which requires the heir or devisee to remove an 
 incumbrance on the estate descended or devised, without resorting 
 to the executor or administrator of his ancestor, unless there is an 
 express direction in the will, throwing the incumbrance on the 
 personal estate, relates to a mortgage by name, and does not 
 specify any other lien or incumbrance. (1 R. S. 749, § 4.) The 
 lien of the vendor for the purchase money is in the nature of an 
 equitable mortgage, and it seems to me falls within the same 
 reason, and should be discharged by the heir or devisee of the 
 vendee, without resorting to the personal representatives of the 
 deceased. 
 
 The interest which the deceased has in land which he has con- 
 tracted to purchase, and for which no conveyance has been given 
 by the vendor, may be sold under an order of the surrogate, on 
 the application of the executors or administrators, or of any cred- 
 itor in the same case, and in the same manner, as if he had died 
 seised of the land ; and the same remedy is extended by the act of 
 1837, ch. 460, § 42, where the deceased was the assignee of the 
 contract for the purchase of land, as when he was the original pur- 
 chaser ; and the same proceedings are to be had in conducting the 
 sale as in other cases. The sale must be made subject to all pay- 
 ments thereafter to become due on the contract. If there are fu- 
 ture payments to be made, the sale must not be confirmed by the 
 surrogate until the purchaser shall execute a bond to the execu^ 
 
332 SALE OF OONTBAOT OF PUEOHASE. 
 
 tors or administrators of the deceased, for their benefit and indem- 
 nity, and for the benefit and indemnity of the persons entitled to 
 the interest of the deceased in the lands so contracted for, (i. e. the 
 heirs or devisees,) in a penalty double the whole amount of pay- 
 ments thereafter to become due on such contract, with such sure- 
 ties as the surrogate shall approve, conditioned that such purchaser 
 will make all payments for such lands that shall become due after 
 the date of such bond, and will fully and amply indemnify the ex- 
 ecutors or administrators of the deceased, as the case may be, and 
 the persons so entitled against all demands, costs, charges and ex- 
 penses, by reason of any covenant or agreement contained in such 
 contract, or by reason of any other obligation or liability of the 
 deceased, on account of the purchase of such lands, and against all 
 other covenants and agreements of the deceased to the vendor of 
 such land in relation thereto. (2 E. S. Ill, 112, §§ 66, 67. 3 id. 
 199, 200, 5th ed.) If, however, there are no payments which be- 
 come due after the purchase, no bond is required of the purchaser. 
 (2 id. Ill, § 68.) 
 
 On confirming the sale, the surrogate, instead of ordering a deed 
 to be given to the purchaser, directs the executors or administra- 
 trators of the deceased, to execute an assignment of the contract 
 to the purchaser. Such assignment vests in the purchaser, Ms 
 heirs and assigns, all the right, interest and title, of the persons 
 entitled to the interest of the deceased in the land sold, at the 
 time of the sale ; and the purchaser has the same rights and rem- 
 edies against the vendor of the land, as the deceased would have 
 had if he had lived. {Id. 69.) 
 
 The surrogate may order only a part of the land so contracted 
 for to be sold ; in which case the purchaser is not required to exe- 
 cute a bond. {Id. § 70.) 
 
 The money arising from the sale is to be brought into court, 
 and the surrogate is required to distribute it p,s in other cases, after 
 paying all charges, and satisfying any claim of dower which the 
 widow of the deceased may have upon the lands sold. {Id. § 71.) 
 
 A widow is not strictly entitled to dower, as such, except in 
 lands of which her husband was seised, of an estate of inheritance, 
 at sometime during the coveture. (1 id. 740.) The claim for 
 dower, in the case of a contract to purchase lands, is declared to 
 
DISTEIBUTION OF PROCEEDS. 333 
 
 extend only to the annual interest, during the life of the widow, 
 upon one third of the surplus money arising from the sale, which 
 shall remain after paying all sums of money due from the de- 
 ceased, at the time of the sale, for the land contracted and sold. 
 (2 id. 112, § 72.) 
 
 Section III. 
 
 Of distribution of the avails of the real estate of the deceased, 
 leased, mortgaged or sold, under the order of the surrogate. 
 
 In cases where the premises have been leased or mortgaged un- 
 der the order of the surrogate, the executors, or administrators, we 
 have seen, make the distribution of the avails among the creditors 
 of the deceased, and they are liable to be cited before the surro- 
 gate to account. 
 
 But when the whole, or any part of the real estate of the de- 
 ceased, is sold by virture of an order of the surrogate, the moneys 
 arising from such sale must be brought into the oflSce of the sur- 
 rogate granting the order, for the purpose of distribution, and are 
 to be retained by him for that purpose. (2 R. S. 103, § 35.) 
 
 The principles on which distribution is to be made, are pointed 
 out in the statute. The surrogate, in the first place, is required 
 to pay out of the moneys the charges and expenses of the sale. 
 These embrace not only the surrogate's fees, but also the just allow- 
 ances to be made to the executors or administrators for their time and 
 disbursements. In the next place, he is required to satisfy any 
 claim of dower which the widow of the testator or intestate may have 
 upon the lands so sold. The widow, it is provided, is entitled to 
 reasonable notice of the payment of the avails of the sale into court, 
 in order that she may elect either a sum in gross or an annuity for 
 life. The statute does not prescribe the length of the notice. The 
 reasonableness, therefore, of the notice must be left to be deter- 
 mined by the surrogate, on a view of the facts in the case. If the 
 widow elects a sum in gross, upon the principles of law applicable 
 to annuities, as a reasonable satisfaction for her claim, she must 
 sign an instrument, in writing, consenting to accept such sum in 
 lieu of her dower. This instrument must be acknowledged or 
 proved in the same manner as deeds entitled to be recorded, and 
 
334 DISTEIBUTION OF PROCEEDS. 
 
 be preserved by the surrogate among the papers in his office. 
 (2 R. S. 186, §§ 36, 37. See Appendix as to form, 99 to 102.) 
 
 If, after reasonable notice for that purpose, no such consent is 
 given, the surrogate is required to set apart one third of the pur- 
 chase money to satisfy the claim of the widow, and to cause it to 
 be invested in permanent securities, on annual interest, in his 
 name of office, and the interest is to be paid to the claimant during 
 life. {Id.) 
 
 The supreme court has adopted the Portsmouth or Northamp- 
 ton tables, as affording the rule to ascertain the present value of 
 the widow's dower. (See do. in Appendix, 103.) 
 
 Having paid the expenses of the sale, and satisfied the claim 
 for dower, the balance of the proceeds is to be distributed among 
 the creditors, in proportion to their respective debts, without 
 giving any preference to bonds or other specialties, or to any de- 
 mand on account of a suit being brought thereon. {Id. § 38.) In 
 this distribution, the legislature adopt the maxim that equality is 
 equity, rather than another maxim, which is good enough in its 
 place — Q,ui prior est tempore, potior est jure. 
 
 But before the making of distribution, notice of the time and 
 place of making it must be published, for six weeks successively, 
 in the county where the surrogate'resides. He may also publish 
 such notice, in such other newspaper, as he may deem most likely 
 to give notice to the creditors. (2 R. S. 107, § 40.) An order 
 should be entered in the book of sales of real estate, appointing 
 the time and place for making the distribution, and directing the 
 creditors of the deceased, whose claims have not been before pre- 
 sented, to exhibit and prove them before the surrogate. (Ap- 
 pendix, No. 95.) 
 
 At the time and place appointed, and at such other times and 
 places as the surrogate shall appoint for that purpose, he is re- 
 quired to proceed to ascertain the valid and subsisting debts 
 against the testator or intestate, and to hear the proofs and alle- 
 gations of the claimants of such debts, and of the executors or ad- 
 ministrators, heirs, devisees, or any other persons interested in the 
 estate of the deceased, or in the application of the proceeds of the 
 sale. [Id. § 41.) 
 
DISTRIBUTION OF'PROOEEDS. 335 
 
 It has been remarked in a preceding section of this chapter, 
 that the appropriate time to exhibit the claims against the estate, 
 is on the application for the sale. The service of the order to 
 show cause is better calculated to inform the parties interested in 
 the estate of the deceased, of the mesures in contemplation, and 
 to enable them to protect their respective interests, than the notice 
 of distribution. Still, however, any debts or demands, not pre- 
 sented on the first hearing, may be presented at this time ; and 
 are entitled to be allowed on being proved to the satisfaction of 
 the surrogate. Debts established on the first hetiring are not 
 again to be controverted except on newly discovered evidence, and 
 then only, on due notice to the claimant. 
 
 As the proceeding to sell the real estate of the deceased for the 
 payment of his debts, is a substitute for an action against the 
 heirs or devisees, it is obvious the latter should be entitled to make 
 the same defense agajnst any claim exhibited against the estate, 
 either on the application to sell, or on the day of distribution, 
 which would be permitted in a court of law or equity in an action 
 against them on the same demand. Hence, payment, the statute 
 of limitations, &c. may be set up by the heir, or devisee, or any 
 claiming under them, and in a proper case, a feigned issue may be 
 ordered by the surrogate, to enable the parties to submit their 
 defense to a jury. (2 R. S. 102, § 11 ; 107, § 42.) Any equitable 
 defense also, may be allowed. {Matter of Wm. Renwick, 
 2 Bradf. 80. Payne v. Mathews, 6 Paige, 10. And see ante, 
 § 1 q/" this chapter, and the cases cited.) 
 
 As the parties in interest may appeal from the order of the 
 surrogate, either in allowing or rejecting any claim presented 
 against the estate, an order 'should be entered in the book of 
 sales on establishing or rejecting such claims. And a schedule 
 containing a list of the claims allowed, and another containing a 
 list of those rejected should de subjoined to the order. (Appen- 
 dix, No. 97.) 
 
 It is no objection to an indebtedness founded on a valuable 
 consideration that it is not due at the day of distribution. The 
 creditor to whom such demand belongs is entitled to receive his 
 proportion with other creditors after deducting a rebate of legal 
 
336 DISTEIBirTK)N OF PKOOEEDS. 
 
 interest upon the sum distributed for the unexpired time of the 
 credit. (2 R. S. 107, § 39.) 
 
 The revised statutes contemplate that the creditors of the de- 
 ceased, whose debts have acquired no legal priority, should be 
 paid ratably as well out of the personal as the real assets. 
 If, therefore, the executors or administrators have made an un- 
 equal distribution of the personal assets among the creditors, by 
 paying some more and others less than their share, the surrogate 
 should so marshal the avails of the real estate, if they are insuf- 
 ficient to pay all, that each of the creditors will,, in the aggregate, 
 receive no more than his ratable proportion. {Livingston v. New- 
 kirk, 3 John. Ch. 818.) The doctrine of courts of equity with 
 respect to marshalling assets in behalf of 'legatees, creditors and 
 distributees, and that of marshalling securities in favor of creditors 
 and sureties, is applicable to surrogates' courts in cases of this 
 kind. For the doctrine itself and some of the cases by which it 
 is illustrated, see Willard's Eq. Juris. § 14 q/" ch. 7, p. 561, 
 et seq. Couch v. Delaplaine, 2 Comst. 897. 
 
 A distribution sheet should be made out and entered in the 
 book of sales containing the name of each claimant, the whole 
 amount of his debt, and the sum to which he is entitled. 
 
 If the proceeds of the sale exceed the debts and expenses, the 
 surplus must be distributed to the heirs and devisees of the tes- 
 tator or intestate, or the persons claiming under them, in pro- 
 portion to their respective rights in the premises sold. (2 R. S. 
 107, §43. Sears v. Mark's assignees, 2 Bradf. 394.) The 
 original petition will afford the surrogate the requisite evidence 
 as to the names of the persons claimed to be heirs or devisees, 
 unless the facts therein stated are controverted. Any dispute 
 in relation to the persons entitled to the overplus, must necessa- 
 rily be settled by the surrogate, at the time distribution is ma:de. 
 The order of the surrogate in this respect, is the subject of ap- 
 peal, and should be entered in the book of sales of real estate. 
 
 If the sale is on a credit as to a part of the consideration, the 
 securities taken must be returned to the surrogate, and be kept 
 by him in his office. It is his duty to collect the moneys due 
 thereon, from time to time, and to distribute and apply the same 
 
DISTRIBUTION OF PROCEEDS. 337 
 
 among the creditors, whose debts were established before him, iu 
 the same proportion, as is directed respecting the moneys arising 
 on such sale. {Id. § 44.) In case any portion of such surplus 
 money belongs to a minor, or to a person who has only a temporary 
 interest in said money, and the reversionary interest belongs to 
 another person, the surrogate is required to make such order for 
 the investment, and the payment of the interest and of the princi- 
 pal, as the supreme court is authorized to do in analogous cases. 
 The investments in such cases are required to be secured by mort- 
 gage upon unincumbered real estate, within this state, worth at 
 least double the amount of such investment, exclusive of buildings 
 thereon, in the name of the office of the surrogate, and he is re- 
 quired to keep the securities in his office, and to distribute the in- 
 terest and principal in conformity to the order under which the 
 investment is made, and to the person or persons entitled thereto. 
 {L. of 1850, ch. 150, § 1 and 2. 3 R. S. 195, dth ed.) 
 
 He is also required to keep in his office, as a part of his official 
 papers, the securities taken by him, on the investment of a princi- 
 pal sum, at annual interest, to satisfy a dower claim. These secu- 
 rities are to b* delivered to his successor in office. And it is his 
 duty to collect such interest, and pay the same to the person en- 
 titled thereto. (2 R. S. 107, § 45.) 
 
 After the death of the person entitled to such interest, the 
 principal sum must be collected, and, after deducting the costs and 
 charges of the surrogate in the management, collection and distri- 
 bution thereof, the residue must be distributed among the creditors 
 of the deceased, who shall have established their debts previous 
 to the original investment of the principal sum, in the same man- 
 ner, and with the like effect as is provided for the distribution of 
 the sales of real estate. {Id. § 46.) 
 
 If there is any. surplus remaining after such distribution, it is 
 directed to be divided among the heirs and devisees of the testator, 
 or the heirs of the intestate, or the persons claiming under them, 
 in proportion to their respective rights in the premises sold. 
 {Id. § 47.) 
 
 It seems to be the policy of the act to apply the moneys arising 
 from the first sale to the payment of the debts proved before the 
 43 
 
338 DISTRIBUTION OF PEOOEEDS. 
 
 surrogate on the first application, or established before him on the 
 day appointed for the first distribution, or on the day to which it 
 may be adjourned. Those creditors seem to have acquired by 
 their vigilance, a lien upon the fund, which ought not to be dis- 
 turbed by the appearance of debts not presented on either of the 
 foregoing occasions. If it was in the power of the surrogate to 
 open his decree for final distribution, on the appearance of every 
 new debt, the policy of the measure might well be questioned. It 
 would lead to great delay and expense. And, as no means are 
 pointed out to notify those interested in the estate of the present- 
 ing a new claim, that they might appear and contest it, the inves- 
 tigation of its validity and merits would almost always be ex parte 
 and imperfect. Hence, the doubtful and unjust claims would 
 always be withheld until after the hearing under the notice of dis- 
 tribution. 
 
 It is believed, however, that the surrogate cannot open his de- 
 cree for distribution, after it is made ; and it, therefore, necessarily 
 follows, that all the avails of the first sale, whether the payment 
 of a part is postponed to a future day, or invested to secure a 
 dower claim, must ultimately be paid towards the satisfaction of 
 the debts established on the first or second hearing. 
 
 The effect of the sale of the real estate on debts not presented 
 to the surrogate, and allowed, and on the heirs and devisees, may 
 be gathered from a view of other provisions of the act. It has 
 already been shown that, during the three first years succeeding 
 the date of the letters testamentary, or of administration, the heirs 
 and devisees gire not liable to be sued by any creditor of the de- 
 ceased. (2 R. S. 109, § 53.) Butts v. Genung, 5 Paige, 254. 
 Wilson V. Wilson, 13 Barb. 252.) By the 33d section (2 R. S. 
 105) it is enacted that if the proceeds arising from the mortgage, 
 lease, or sale of any lands, made pursuant to the order of any sur- 
 rogate, which shall be paid over to the surrogate, shall be sufficient 
 to pay all the debts established before the surrogate, on granting 
 the order, the heirs and devisees of the testator or intestate, and 
 all the remaining lands of which he died seised, shall be exonerated 
 from all claim, or charge by reason of such debts so established. 
 If the proceeds shall not be sufficient for that purpose, the heirs 
 and devisees, and the remaining land, shall be exonerated from 
 
DISTRIBUTION OF PEOOEEDS— COSTS, 339 
 
 such debts, in proportion to the sum raised, and paid over. Hence, 
 after the termination of the proceedings before the surrogate, the 
 heirs and devisees become liable to the creditors whose debts are 
 unpaid, whether allowed by the surrogate or not, to the extent of 
 the real estate received by them, by descent or devise. But if the 
 sale under the surrogate's order embraced all the real estate of 
 which the deceased died seised, and the avails were all exhausted 
 in paying the debts and expenses, it would seem that the creditor 
 who omitted to present his claim to the surrogate for allowance at 
 the proper time, is remediless. There is no provision in the act 
 authorizing him to require the creditors whose debts have been 
 paid to refund a proportional part. Having received their debts, 
 or a ratable share thereof, under the decree of a court of compe- 
 tent jurisdiction, they are entitled to avail themselves of thq fruits 
 of their superior vigilance. 
 
 By the act of 1844, ch. 300, § 2, the surrogate was allowed for dis- 
 tributing any money brought into his office on the sale of real estate, 
 two per cent ; but such commission was not in any case to exceed 
 twenty dollars for distributing the whole money raised by such 
 sale ; and no executors or other persons authorized to sell any real 
 estate by order of any surrogate, are allowed any commission for 
 receiving or paying to the surrogate the proceeds of such sale ; 
 but they are allowed their expenses in conducting such sale, in- 
 cluding two dollars for every deed prepared and executed by them 
 thereon, and a compensation not exceeding two dollars a day for 
 the time necessarily occupied on such sale. (3 R. S. 921, bth ed.) 
 Since 1847, surrogates have been compensated by a stated salary, 
 and the fees of the office are accounted for by them to the county 
 treasurer of their respective counties. 
 
 In contests relative to the validity of claims presented against 
 the estate of the deceased, the surrogate may award costs to the 
 party in his juflgment entitled thereto, to be paid either by the 
 other party, personally, or out of the estate which is the subject of 
 controversy. (2 R. S. 223, § 10.) By the laws of 183T, p. 536, 
 it was provided that in all cases where the surrogate is authorized 
 by law to award costs, he shall tax them at the same rate allowed 
 for similar services in the courts of common pleas. The rates al- 
 lowed at that time in courts of common pleas, were the same as 
 
340 DISTRIBUTION OF PROCEEDS— COSTS. 
 
 the common pleas costs established by the revised statutes of 1830. 
 Notwithstanding those courts have since been abolished by the 
 present constitution, it has been held by the learned surrogate of 
 New York, in Western v. Bomaine, 1 Bradf. 37, that the old 
 common pleas fee bill is still to be followed in the taxation of these 
 costs as far as it is applicable. {See also Burtis v. Dodge, 
 1 Barb. Ch. E. 91.) It would, in many cases, be inequitable, to 
 require the estate to sustain the expense of resisting unjust de- 
 mands, presented to the surrogate for allowance. The power of 
 subjecting the unsuccessful party to the payment of costs, should be 
 so exercised that while it will protect the estate against stale and 
 unfounded claims on the one hand, it will restrain the executors, 
 or other persons, conducting the proceedings, from resisting, with- 
 out rep-son, such as are meritorious. 
 
 The proceedings on distributing the avails of an equitable free- 
 hold, sold under the order of the surrogate, are in substance the 
 same as those which we have been considering. The surrogate, 
 however, in the first instance pays the vendor such sum as is due 
 on account of the contract, and distributes the balance among the 
 creditors of the deceased. The surplus, after paying debts and 
 expenses, is to be paid to the persons who would have been enti- 
 tled thereto, if there had been no sale, in proportion to their re- 
 spective rights in the premises sold. These persons have been 
 before shown, to be the heirs or devisees of the deceased. (2 R. S. 
 112, § 73.) 
 
 Where a portion only of the land so contracted is sold, the ex- 
 ecutor or administrator is required to execute a conveyance therefor 
 to the purchaser, which shall transfer to him all the rights of the 
 deceased to the portion so sold, and all the rights which shall be 
 acquired to such portion, by the executor or administrator, or by 
 the persons entitled to the interest of the deceased in the land 
 sold, at the time of the sale, on the perfecting of the title to such 
 land, pursuant to the contract. {Id. § 74.) 
 
 Upon the payment being made in full, on a contract for the pur- 
 chase of land, a portion of which shall have been sold, according 
 to the preceding provisions, the executors or administrators of the 
 deceased are declared to have the same right to enforce the per- 
 formance of the contract which the deceased would have had if he had 
 
DISTRIBUTION— SALE UNDER POWER. 341 
 
 lived ; any deed that shall be executed to them, shall be in trust, 
 and for the benefit of the persons entitled to the interest of the 
 deceased, subject to the dower of the widow, if there be any, ex- 
 cept for such part of the land so conveyed as shall have been sold 
 to a purchaser, according to the preceding provisions ; and as to 
 such part the said deed shall enure to the benefit of the purchaser. 
 {Id. § 75.) 
 
 The foregoing provisions of the act are sufficiently plain, and do 
 not_seem to have led to any controversy. 
 
 We have hitherto considered only those cases of distribution 
 where the fund has been created by a sale of real estate, or equita- 
 ble interests, in pursuance of the order of the surrogate's court. 
 But there is another class of cases where the fund is permitted to 
 be brought into the same court for distribution, upon the like prin- 
 ciples. Those cases are where the real estate of the testator, or 
 some interest therein, has been devised to the executors to be sold 
 by them ; or where they have been authorized to sell either for 
 payment of debts or legacies. In the first of these classes, if any 
 one or more of the executors neglect or refuse to take upon him 
 the execution of the will, the sale by any such as do take upon 
 ' themselves the execution of the will, is eqally valid as if the oth- 
 ers had joined in the sale. (2 jR. S. 109, § 55. Ogden v. Smith, 
 2 Paige, 197, 8. Sharp v. Pratt, 15 Wend. 610.) The result 
 is the same on the death of one of several executors ; the survivors 
 can execute the trust. But if one or more be removed by the 
 court, or his resignation be accepted, the remainder cannot execute 
 a power of sale so as to vest a good title in the purchaser. {In 
 the matter of Van Wyck, 1 Barb. Ch. R. 565.) 
 
 The right of those who qualify to execute the power, when a 
 part renounce, applies as well to discretionary as to peremptory 
 powers of sale. (Taylor v. Morris, 1 Comst. 341.) But the 
 power in this class of cases cannot be exercised on the death of 
 the last surviving executor by an administrator, with the will an- 
 nexed. {Dominick v. Michael, 4 Sandf. S. C. R. 374.) Such 
 administrator succeeds merely to the rights, powers and duties, of 
 the executors, in relation to the personal estate, and not to any 
 power over the real estate. (Id.) 
 
842 DISTRIBUTION— SALE UNDEK POWER. 
 
 Unless it be otherwise directed in the will, such sales may be 
 public or private, and on such terms as, in the opinion of the ex- 
 ecutor, shall be most advantageous to those interested therein. 
 {L. 0/1837, ch. 460, § 43. 3 R. S. 197, 5th ed.) 
 
 There is no doubt of the jurisdiction of the surrogate, in whose 
 office the will is proved, to cite the executors to account for the 
 proceeds of the sale of real estate of the testator, made by them 
 under a power of the will, either for the payment of debts or 
 legacies, and to compel a distribution, aS if the proceeds had been 
 originally personal property, in the hands of an administrator. 
 (2 R. S. 109, § 57. Stagg v. Jackson, 1 Comst. 210. Clark v. 
 Clark, 8 Paige, 153. Bloodgood v. Briien, 1 Bradf. 8. Hall 
 V. McLaughlin, id. 107.) 
 
 The 75th section of the act of 1837, p. 637, authorizes the ex- 
 ecutor, who has made any sale in pursuance of any authority given 
 by any last will and testament, to bring the proceeds into the of- 
 fice of the surrogate, before whom the will was proved, for dis- 
 tribution, and in that case it requires the surrogate to distribute 
 the same, in like manner, and upon the like notice, as if such pro- 
 ceeds had been paid into his office, in pursuance of an order of 
 sale of real estate for the payment of debts. But the executor is 
 not absolutely required to do this, but may distribute the pro- 
 ceeds himself, in which case he may be called to account for the 
 same, as has already been shown. The authority to pay it into 
 court is for the benefit and protection of the executor, and not for 
 the additional security of those interested in the fund. {Holmes 
 V. Cook, 2 Barh. Ch. R. 429.) 
 
 It need scarcely be added, that the authority given to executors 
 by a will, for the sale of real estate of the testator, must be 
 strictly pursued. Where the testator has given no authority to 
 sell real estate, the executors cannot sell any portion of it, either 
 for the purpose of division or otherwise. {Craig v. Craig, 3 
 Barh. Ch. R. 11)* 
 
 * The authority to sell the real estate of deceased persons for the payment of 
 dehta, was first given to the court of probate in the year 1786, by a single section 
 of the statute. From that inconsiderable beginning, the system has swelled to its 
 present monstrous proportions. It is, Indeed, a cumbersome, dilatory, and expen- 
 sive mode of making a man's real estate available for the payment of hia debts. 
 
DISTRIBUTION. 343 
 
 It is some relief to Imow tliat no man is obliged, as a matter of course, t<^ leave 
 his affairs in such a way as to render a resort to this proceeding necessary. It is 
 consolatory to reflect that every man can, by a judiciously constructed will, provide 
 for the sale and disposition of his real estate, without a resort to the surrogate for 
 authority. He may, if he pleases, make his real estate the primary, or the auxil- 
 iary fund, for the payment of both debts and legacies. But a large portion of men 
 die intestate, and a still larger portion are reluctant to give their executors the 
 same power over their real estate, as the law imparts to them over their person- 
 alty. Hence, the present system will continue, perhaps, for years to come. 
 
 When, nearly a quarter of a century ago, the act of 1837, ch. 460, was in the 
 hands of the then attorney general, (Bronson,) by*vhom, under the direction of a pre- 
 vious legislature, it was prepared, he sent a printed copy of it to the different surro- 
 gates then in office, with a request that they would furnish him with any suggestions 
 which occurred to them, with respect either to the general subject, or to the statute 
 as framed by him. The writer of this treatise was, at that time, surrogate of 
 Washington county, and had devoted much time to the consideration of those 
 branches of the law affecting that department. In answer to the communication of 
 the attorney general, he suggested, as a substitute for the whole proceedings in the 
 surrogate's court, for the sale, leasing, or mortgaging of real estate for the payment 
 of debts, a change in the law relative to the administration of the estates of' de- 
 ceased persons, by virtue of which the testator's real estate should be assets in the 
 hands of his executors or administrators, in the same manner as his personal chat- 
 tels and choses in action. He thought there was no more danger in making this 
 change, than there was a generation earlier in making a man's real estate liable to 
 execution at the suit of his creditors, in his lifetime, and to the payment of his 
 debts by simple contract or specialty in the hands of his heirs or devisees after his 
 death. He thought there was no more danger in entrusting executors or adminis- 
 trators with the sale of a farm worth ten thousand dollars, than with the dominion over 
 the same amount in value of bank stock, or other personal property. His sugges- 
 tions failed to convince the attorney general, and the change recommended was 
 not adopted. The glory, therefore, of the improvement, remains for some future 
 reformer. 
 
 Few institutions of the middle ages made a stronger impression on the human 
 mind than the feudal system. It is to that system we are indebted for our law of 
 real estate. The distinctive character of the institution — the inalienability of the 
 feud — impressed itself with unyielding tenacity upon the soil, and made the occu- 
 pant the dependent vassal of his lord. Every clog that has been removed from the free 
 circulation of real property, for the last 300 years, from the statute of wills and the 
 abolition of knight service, to the subjecting land, in any form, to the payment of 
 debts, has been a hard won triumph over ignorance and prejudice, 
 
344 COMPELLING EXECUTORS, &o. TO SELL. 
 
 CHAPTER II. 
 
 OF PROCEEDINGS AGAINST EXECUTORS OR ADMINISTRATORS TO 
 COMPEL THEM TO CAUSE AN APPLICATION TO BE MADE TO 
 THE SURROGATE FOR AN ORDER TO LEASE, MORTGAGE OR 
 SELL THE REAL ESTATE OP THE DECEASED, FOR THE PAY- 
 MENT OF HIS DEBTS. 
 
 In the last chapter we treated of the cases where the proceed- 
 ings on the part of the executors or administrators were volunta- 
 ry on their part. This embraces most of the cases that will arise, 
 and all the cases which previous to 1830, could be discussed in 
 surrogates' courts. If the executors or administrators neglected 
 or refused to invoke the aid of the surrogate to reach the real es- 
 tate of the deceased for the payment of debts, the remedy of the 
 creditor, it. case of a deficiency of personal assets, was against 
 the heirs or devisees of the testator or intestate. This was a slow 
 and expensive proceeding, and resulted in the exclusive benefit of 
 the plaintiiF who was the most vigilant in bringing his suit. It 
 thus prevented an equal distribution of the estate. This was 
 contrary to the policy of the law in other respects, and the re- 
 visers proposed, and the legislature adopted, the present plan as a 
 substitute for actions brought by creditors against the heirs and 
 devisees. 
 
 The system, as first adopted, limited the period within which 
 the application could be made to three years from the date of the 
 letters testamentary or of administration, and forbid any suit from 
 being brought, during the same period, against the heirs or de- 
 visees of the realty, in order to charge them with the debts of the 
 testator or intestate. (2 R. S. 108, § 48. Id. 109, § 53.) Nor 
 could it be instituted until after the rendering a final account by 
 the executors or administrators. This last provision is still in 
 force, when the application is by a creditor. The limitation to 
 three years is repealed. The 72d section of ch. 460, of the Laws 
 of 1837, as amended in 1843, ch. 172, and 1847, ch. 298, is sub- 
 stituted for the original 48th section of the revised statutes. In 
 substance it provides that if after the rendering of, and account- 
 
COMPELLING EXECUTORS, &o. TO SELL. 345 
 
 ing by an executor or administrator to a surrogate as provided by 
 the revised statutes, it shall appear that there are not sufficient 
 assets to pay the debts of the deceased, the surrogate, upon the 
 application of any creditor, made at any time after the granting 
 of letters testamentary or of administration, shall grant an order 
 for such executor or administrator to show cause why he should 
 not be required to mortgage, lease or sell the real estate of the 
 deceased, for the payment of his debts ; but he shall not assign 
 for cause why he should not be ordered to sell real estate, that 
 the time within which he is allowed to sell the same has expired ; 
 and where a judgment has been recovered or decree obtained 
 against an executor or administrator, for any debt due from the 
 deceased, and there are not sufficient assets in the hands of such 
 executor or administrator to satisfy the same, the debt for which 
 the judgment or decree was obtained shall, notwithstanding the form 
 of such judgment or decee, remain a debt against the estate of the 
 deceased to the same extent as before, and to be established in the 
 same manner as if no such judgment or decree had been obtained. 
 Provided, that where such judgment or decree has been obtained 
 upon a trial or hearing upon the merits, the same shall be prima 
 facie evidence of such debt before the surrogate. (3 R. S. 196, 
 bth ed.) 
 
 If the executors or administrators have not tendered their ac- 
 count to the surrogate, the creditor intending to proceed under the 
 foregoing section, must compel them to do so under the provisions 
 with respect to accounting, which are treated of in another chap- 
 ter. The rendering of an account by a part only of the executors 
 or administrators is not enough. All must be compelled to ac- 
 count, before the creditor can proceed in this way. {Sanford v. 
 Granger, 12 Barb. 392.) The costs of the judgment awarded 
 against the executors can in no event be a charge on the real estate, 
 in the hands of the heir. {Id.) 
 
 The order on the executors or administrators to show cause must 
 be served on them personally, at least fourteen days before the day 
 therein appointed for showing cause. (2 R. S. 108, § 49.) This 
 order will be obtained on the presentation of a petition duly verified, 
 setting forth the facts which entitle the creditor to the order. 
 The form given for the orignal petition by the executors or admin- 
 
 44 
 
346 COMPELLING EXECUTORS, &o., TO SELL. 
 
 istrators with suitable modifications, which will readily occur to an 
 attentive person, will enable the creditor or his counsel to prepare 
 the appropriate petition. If there be infants, similar proceedings 
 to those heretofore described, must be had for the appointment of 
 guardians ad litem. 
 
 On the return of the order requiring the executors or adminis- 
 trators to show cause, if no cause to the contrary be shown, the 
 surrogate is required to order notice of the application to be served 
 and published in the manner hereinbefore directed, on the appli- 
 cation of an executor ; and if at the day appointed in such notice, 
 the surrogate shall be satisfied of the matters specified in the l^th 
 section of title 4, ch. 6, of part Id of the revised statutes, he 
 may order such executor or administrator to mortgage, lease or 
 sell so much of the real estate of which the testator or intestate 
 died seised, as shall be sufficient for the payment of the debts 
 established before him. (2 R. iS. 108, § 50.) 
 
 If it appears on the return of the first order for the administra- 
 tors or executors to show cause that all the personal estate has 
 been applied to the payment of debts, and that there remain claims 
 unpaid, for the satisfaction of which a sale of the real estate may 
 be made, the surrogate is bound to issue the second order requiring 
 all persons interested in the estate to show cause against the ap- 
 plication. (Richardson v. Judali, 2 Bradf. 157.) In this re- 
 spect the statute is peremptory. But with respect to the order 
 requiring the executors or administrators to mortgage, lease or 
 sell so much of the real estate whereof the testator or intestate 
 died seised, as shall be sufficient for the payment of the debts estab- 
 lished before him, it is otherwise. The language, instead of being 
 imperative, leaves it discretionary with the surrogate to grant the 
 order or withhold it. This discretion is not an arbitrary, but a 
 judicial discretion, to be exercised according to the justice and 
 equity of the case. 
 
 If there has been great and inexcusable delay on the part of 
 the creditor, in instituting the proceedings ; if he has lain by and - 
 seen the real estate change owners ; if the demand sought to be 
 enforced, would be barred by the statute of limitations, provided 
 an action at law or in equity were brought to recover it in the 
 supreme court; or, if, indeed, it were a stale and unmeritorious 
 
COMPELLING EXEOUTOES, &o., TO SELL. 347 
 
 claim, the surrogate would, in either case, be warranted in with- 
 holding the relief invoked, at least, until the justice of it had been 
 established by a decision of the court, in an action against such exec- 
 utors or administrators brought to recover the same. And even in 
 the latter case, we have seen that such judgment, though obtained 
 after a trial or hearing upon the merits, is only prima facie 
 evidence of a debt before the surrogate ; thus, leaving it with him 
 to determine, at last, whether equity requires that the real estate 
 of which the testator or intestate died seised should be sold to pay 
 it. There may be other defenses to the claim of which enough 
 has been said in the preceding chapter. 
 
 The creditor is not remediless if the surrogate declines to grant 
 an order for the sale of the real estate. He may bring his action 
 against the heirs or devisees, after the expiration of three years 
 from the time of granting the letters testamentary or of adminis- 
 tration. (2 R. S. 109, 452, 453.) The court would not stay the 
 action, unless the surrogate should grant an order of sale, nor then 
 unless the plaintiff should allege that lands have descended to the 
 heirs or been devised to the devisees, which were not included in 
 any order of sale, in which case a decree in such suit would not 
 change or in any way affect any land so ordered to be sold. {Id. 
 109, § 58.) 
 
 Should the surrogate decide to grant the order of sale, his 
 judgment cannot be reviewed by the executors or administrators, 
 nor can they defeat the proceedings by refusing or neglecting to 
 serve and publish the notices required, or to do any other act 
 necessary to authorize the order. In such a case the surrogate is 
 empowered to appoint a disinterested freeholder to perform the 
 duties enjoined upon the executors or administrators, who is re- 
 quired to proceed therein in the same manner as the former were 
 directed to do. (2 R. iS. 109 § 53.) 
 
 The subsequent proceedings in case a sale is- ordered, will be 
 similar to those already discussed in the preceding chapter. 
 
348 LEGACIES. 
 
 CHAPTER III. 
 
 OP LEGACIES; THEIR DIFFERENT KINDS AND INCIDENTS, AND 
 THE CONSTRUCTION THEREOF. 
 
 Section I. 
 Of the different kinds of legacies. 
 
 Legacies with respect to their subject matter are of two descrip- 
 tions, either general or specific. The former appellation is ex- 
 pressive of such as are pecuniary, or merely of quantity. Under 
 the denomination of specific legacies, two kinds of testamen- 
 tary gifts are included ; as first, where a certain chattel is par- 
 ticularly described, and distinguished from all others of the same 
 species, as "I give the diamond ring presented to me by A." 
 This legacy can be satisfied only by the delivery of the indentical 
 ring ; and if it be found not among the testator's effects, it fails 
 altogether, unless it be in pawn, when the executor, it is said, 
 must redeem it for the legatee. The second kind of specific 
 legacy is where a chattel of a certain species is bequeathed without 
 any designation of it as an individual chattel, as " I give a diamond 
 ring." A bequest of this description can be fulfilled by the de- 
 livery of anything of the same kind. (2 Mad. Ch. Pr. 7, 8. 
 Toller, 301.) 
 
 It is a general rule that no legacy is to be held specific unless 
 clearly so intended ; and this gives rise to another class, having 
 the appearance in some respects of specific legacies-, and partaking 
 of the nature, to a certain extent, of a general legacy. They are 
 styled demonstrative legacies ; as where a sum of money is given 
 out of a particular fund. In such a case the legacy does not fol- 
 low the fate of the particular fund ; and thus far it differs from a 
 specific legacy ; but it is considered specific as to the legatee, and 
 therefore does not at common law abate on failure of assets. 
 {Coleman y. Coleman, 2 Ves.jr. 160.) 
 
 Legacies may again be divided with respect to their enjoyment. 
 
GENERAL AND SPECIFIC LEGACIES. 349 
 
 into vested and contingent ; absolute or conditional legacies. 
 They may also be viewed as subject to other incidents, such as be- 
 ing cumulative, in distinction from a repetition of the same 
 legacy. Specific legacies are subject to- ademption, by the de- 
 struction of the subject matter in the lifetime of the testator. All 
 legacies are liable to lapse on certain contingencies, except where 
 the statute has intervened to prevent it. They are subject also 
 to the equity doctrine of election and satisfaction. General lega- 
 cies are sometimes charged upon the real estate of the testator, 
 either as the primary or auxiliary fund for their payment. 
 
 The jurisdiction of the surrogate's court over legacies is mainly, 
 if not exclusively, derived from the statutes. It does not extend 
 to the enforcement of legacies charged on the real estate of the 
 testator, and is, in other respects, less comprehensive than that of 
 courts of equity, now possessed by the supreme court. The limits 
 of this treatise will not permit a full discussion of the whole doctrine 
 of legacies. We can only give a brief and general view of the 
 subject. 
 
 1. Of ^eJieraZ and 5peci/?c legacies. A legacy is g-ewera^, when 
 it is so given as not to amount to a bequest of a particular thing 
 or money of the testator, distinguished from all others of the same 
 kind. It is specific when it is a bequest of a specified part of the 
 testator's personal estate. ( Tifft v. Porter, 4 Said. 518.) Accord- 
 ingly, where the testator owned 360 shares of Cayuga county bank 
 stock, and he bequeathed 240 shares of Cayuga county bank stock 
 to one legatee, and 120 shares to another, but without indicating 
 that the shares bequeathed were to be taken from those which he 
 owned at the time of his death, the court of appeals held that the 
 legacies were general. {Id.) 
 
 The presumption, both of law and equity, is in favor of general 
 legacies. To establish a specific legacy, it requires a clear mani- 
 festation of the testator's intention. The court leans against con- 
 sidering legacies specific because of the consequences. {Ellis v. 
 Walker, Ambler, 310. Waltm v. Walton, 1 J. Ch. R. 264. 
 Tifft v. Porter, supra. Enders v. Enders, 2 Barb. S. C. R. 
 367.) This inclination, says Lord Eldon, has been indulged to 
 such an extent, in order to prevent legacies from being disap- 
 pointed in substance^ and they have been so anxious to procure the 
 
350 GENERAL AJ^TD SPEOIFIO LEGACIES. 
 
 legatees tbe bounty in some cases, that they have construed words 
 giving the specific corpus, as a direction to purchase that thing. 
 {Sibley V. Perry, 7 Ves. 530.) 
 
 There is a strongly marked distinction between general and 
 specific legacies, in many respects. If the legacy be specific, and 
 the testator does not leave among his efi"ects the thing bequeathed, 
 the legacy fails altogether ; and the executor cannot be required 
 to make it good. But if the legacy be general, and the thing 
 given is not found in the possession of the testator, at his death, 
 and the assets are sufficient to pay debts and legacies, it is the 
 duty of the executor to purchase an article corresponding with the 
 description of the legacy. 
 
 In Evans v. Tripp, 6 Mad. 91, the testator gave a sum in 
 stock standing in his name. The testator had no stock, either at 
 the time he made the will or at his death. The vice chancellor 
 (Leach) held that nothing passed by the will. And he said, " A 
 gift of my grey horse will pass a black horse, which is not strictly 
 grey, if it be found to have been the testator's intention that it 
 should pass by that description ; but if the testator has no horse, 
 the executor is not to buy a grey horse." 
 
 A bequest of a sum of money generally, or of a sum in govern- 
 ment securities, must be taken as a legacy of quantity, and is, 
 therefore, a general legacy. This doctrine, it is said, prevails, 
 notwithstanding the testator may have a greater, or the exact 
 quantity of the specific stock, at the date of his will. {Bronsdon 
 v. Winter, Ambler 59.) In Purse v. Snaplin, 1 Atk. 413, the 
 testator bequeathed £5000 south sea stock to A. <fc B. each. At 
 the time of making his will, the testator had only £5000 south 
 sea stock. It was held that the legacy was general ; and the 
 executor was consequently decreed to transfer the £5000 stock in 
 moieties to A. & B., and to purchase £5000 more of the same 
 stock to be divided in the same manner. But stock, or govern- 
 ment securities, may be specifically bequeathed, when there is a 
 clear reference to the corpus of the fund. Thus, the word "my" 
 preceding the word stock, or annuities, has been several times 
 adjudged sufficient to render the legacy specific ; as where the 
 bequest is of "my" capital stock of £1000 in the India company 
 stock, or a legacy is given of "my" stock, or in "my" stock, or 
 
GENERAL AND SPEOIFIO LEGACIES— ADEMPTION. 351 
 
 part of " my" stock. {Sibley v. Perry, 7 Ves. 530. Barton v. 
 Cooke, 5 id. 461. Kirby v. Potter, 4 Ves. 750.) On this princi- 
 ple, Chancellor Kent held that a bequest in these words, " I give 
 and bequeath to my nephew all my right, interest, and property 
 in thirty shares which I own in the bank of the United States of 
 America," was a specific legacy. ( Walton v. Walton, 7 J. Ch. R. 
 258.) So also a bequest of " the proceeds of a bond and mortgage 
 I hold against S." was held by the supreme court to be specific. 
 (2 Barb. S. C. R. 83.) 
 
 Ademption is an incident of a specific legacy. If a debt speci- 
 fically bequeathed be received by the testator, the legacy is 
 adeemed. {Preston on Legacies, 825.) This rule of ademption 
 does not apply to demonstrative legacies. With regard to them, 
 the legacy remains, although the fund for its payment has been 
 called in, or altered by the testator in his life time. Nor does it 
 apply to general pecuniary legacies ; as where the testator be- 
 queaths a horse, a yoke of oxen, or other article, not describing it 
 by any mark so as to distinguish it from all others of the like 
 nature. In such a case, if the testator does not possess the thing 
 bequeathed, and leaves sufficient assets, the executor must pur- 
 chase an article answering the description of the will, or otherwise 
 pay its value to the legatee. 
 
 A distinction was formerly made between a voluntary and com- 
 pulsory payment. A voluntary payment of a debt specifically 
 bequeathed, was considered not any ademption, since the payment 
 did not create any alteration of the testator's intention ; nor did a 
 compulsory payment of itself create an ademption, as it might be 
 done for the benefit of the legatee. {Preston on Legacies, 326.) 
 But modern decisions have repudiated this distinction ; and it 
 may now be considered as established, in the words of Lord Thur- 
 low, in Humphreys v. Humphreys, (2 Cox, 185,) that " the 
 only rule to be adhered to is, to see whether' the subject of the 
 specific bequest remained in specie, at the time of the testator's 
 , death, for if it did not, then there must be an end of the bequest ; 
 and the idea of discussing what were the particular motives and 
 intentions of the testator, in each case, in destroying the subject 
 of the bequest, would be productive of endless uncertainty and con- 
 
352 DEMONSTRATIVE LEGACIES. 
 
 fusion." These remarks relate to a case where the testator, hy 
 his own act, destroys the subject of the gift. But where the fund 
 is varied or differently arranged, by operation of law, but its 
 identity not lost, the legacy will not be adeemed. Thus, in Walton 
 V. Walton, supra, where the shares of stock in the old United 
 States bank were specifically bequeathed, the legacy was held not 
 to be adeemed by the expiration of the charter of the bank, and 
 the conveying of the fund to trustees for distribution to the parties 
 entitled to it. 
 
 In Gardner v. Printup, supra, the testator bequeathed speci- 
 fically the proceeds of a bond and mortgage, particularly described. 
 Previous to the death of the testator, he commenced proceedings 
 to foreclose the mortgage, which resulted in the sale by the mort- 
 gagor of the premises Jo other parties, who paid a portion of the 
 amount of the purchase money to the testator, which was endorsed 
 on the original mortgage, and gave a new mortgage to the testator 
 on the same premises for the balance, as collateral to the original 
 mortgage, which was still held by the testator. It was held that 
 this operated only as an ademption pro tanto of so much of the 
 legacy as was received by the testator in money, but that the new 
 mortgage, or the amount due thereon, at the death of the testator, 
 passed to the legatee as part of the specific legacy. 
 
 To constitute an ademption of a specific legacy, the disposition 
 of the subject must be absolute. If, therefore, the testator pawns 
 or pledges an article specifically bequeathed, and dies before the 
 right of redemption has expired, the legatee has a right to require 
 the executor to redeem the thing bequeathed, and deliver it to 
 him. {Per Ld. Thurlow, 2 Bro. C. C. 113.) 
 
 A bequest to S. of the amount of his bond and mortgage to the 
 testator, is a forgiveness of the debt, or specific legacy, and not a 
 pecuniary legacy. {Skoll v. Sholl, 5 Barb. 312.) 
 
 A demonstrative legacy is a general or pecuniary legacy, where 
 a particular fund is pointed out by the will for the payment of it. 
 If the fund fails, such a legacy is to be made good out of the gen-' 
 eral assets. The fund is designated only as the convenient means 
 by which to discharge it, and becomes descriptive of the amount 
 
LAPSE, 353 
 
 or value of the gift. ( Walton v. Waltofi, 7 John. Ch. E. 262. 
 Enders v. Enders, 2 Barb. iS. C R. 367.) 
 
 Legacies are either vested or contingent. And here a dis- 
 tinction is made between legacies payable out of real or personal 
 estate, or out of both funds. 
 
 Legaices are primarily payable out of the personal estate, 
 though the real estate be charged ; and, therefore, it is proper 
 first to consider such as are payable out of the personalty. These 
 legacies are vested, by the assent of the executor, immediately on 
 the testator's death, if given generally ; as "I bequeath to A one 
 hundred dollars." A legacy is said to be contingent where the 
 enjoyment of it depends on the happening of some event. If the 
 legacy is vested in the legatee, and the legatee dies, the interest 
 in the legacy passes to his personal representatives. But 
 there is much learning in the books on the' subject of the lapse, or 
 failing of a legacy, by means of the death of the legatee before the 
 testator ; or by means of the death of the legatee after the death 
 of the testator, but before the happening of the contingency on 
 which the legacy is to vest. And there is also a distinction in 
 this respect, between legacies charged on land and such as are 
 payable out of the personalty, or out of a mixed fund of real and 
 personal estate. 
 
 It is proposed, briefly, to notice these distinctions. 
 
 The first class of cases we will consider, is where the legacy 
 lapses by the death of the legatee, before the death of the tes- 
 tator. 
 
 There is no principle better established, from the earliest peri- 
 od, both in the ecclesiastical courts and in the courts of equity, 
 than this, to wit, that, at common law, unless the legatee survives 
 the testator, the legacy is extinguished ; neither can the executors 
 or administrators of the legatee demand the same. ( WentwortKs 
 Ex'rs, 436. 2 Phill. 261.) This rule was modified by the re- 
 vised statutes in 1830. It is enacted that whenever any estate, 
 real or personal, shall be devised or bequeathed to a child, or other 
 descendent of the testator, and such legatee or devisee shall die 
 during the lifetime of the testator, leaving a child or other de- 
 scendant, who shall survive such testator, such devise or legacy 
 
 45 
 
354 LAPSE. 
 
 shall not lapse, but the property so devised or bequeathed shall 
 vest in the surviving child, or other descendant of the legatee or 
 devisee, as if such legatee or devisee had survived the testator, 
 and had died intestate. (2 R. S. 66, § 52. Bishop v. Bishop, 
 4 Hill, 138. Chrystie v. Phyfe, 22 Barb, 195. Armstrong v. 
 Moran, 1 Bradf. 314.) The statute prevents a lapse only in 
 cases where the testator is the ancestor of the legatee or devisee, 
 and where the deceased legatee or devisee leaves a child or other 
 descendant, in esse, at the death of the testator, in whom the prop- 
 erty devised or bequeathed can vest. If the legatee or devisee 
 is not a lineal descendant of the testator, or if the testator has no 
 lineal descendants of his own, the devise or legacy is subject to 
 all the rules, with respect to lapse, which have been established 
 on this subject. 
 
 The consequences of a lapse may always be prevented by the 
 testator by a suitable provision in his will. If he directs, in his 
 will, that in case the legatee or devisee should die before the vest- 
 ing of the legacy or devise, the property so bequeathed or devised 
 should not lapse, but should go to some other person therein 
 named, his intention could be carried into eifect. {^Perkins v. 
 Michlethwaite, 1 P Wm. 2T4. /Sibley v. Cook, 3 Atk. 572.) 
 This intention of the testator cannot be proved by evidence dehors 
 the will, but must be gathered from an examination of the whole 
 instrument. Thus, it appears, that to prevent a lapse by the death 
 of the legatee, in the lifetime of the testator, two circumstances 
 must concur, to wit, first, the manifestation «f an intention to that 
 effect on the face of the instrument, and second, the substitution 
 of a person capable of taking instead of the deceased legatee. 
 (See form of clause in a will to prevent lapse, Appendix, No. 1.) 
 
 If a legacy be given to two persons jointly, and one of them die 
 before the testator, such interest will not lapse, but will survive 
 to the other legatee. ( Gardner v. Printup, 2 Barb. S. C. R. 
 83, 89.) 
 
 But where legacies are given to several legatees by name, as 
 tenants in common, to be divided among them in equal parts, if 
 any one should die before the testator, his share will not go to the 
 survivors, but will lapse. {Bagwell v. Dry, 1 P. Wm. 700. 
 2 id. 488.) It is otherwise where a legacy is given to several in- 
 
LAPSE. 355 
 
 dividuals, not by name, but in a class ; as where a legacy is given 
 to the children of A. The death of any of them will not occasion 
 a lapse of his share, but it will go to increase the fund, and those 
 of the described class will take the whole. (2 Bro. C. C. 658.) 
 
 It is an established rule, that if a legacy be given to A for life, 
 remainder over to B, and A dies before the testator, the remainder 
 will take effect on the testator's death. {Hardwick v. Thurston, 
 4 Euss. 380.) 
 
 The second class of cases under this head, is where the legacy 
 lapses by the death of the legatee after the death of the testator. 
 
 The general rule of construction, at common law, is that where 
 a legacy is given, without specifying any time of payment, it is 
 due on the death of the testator, though not payable until one 
 year afterwards. This delay of a year was for the convenience of 
 the executor, affording him time to ascertain the extent of 
 the claims against the estate, and the condition of the assets, 
 and was never considered as preventing the legacy from vest- 
 ing. (2 Salk. 415.) The common law rule of giving the executor 
 a year from the death of the testator for this purpose, is expressly 
 enacted by the revised statutes, with this difference, however, that 
 by the statute the executor or administrator is prohibited from 
 paying any legacy until after the expiration of one year from the 
 daie of his letters testamentary or of administration, unless the 
 same are directed by the will to be sooner paid. (2 R. S. 90, 
 §§ 43 to 45.) There is nothing in the postponing of the payment of 
 a legacy to a future day, incompatible with its immediately vesting 
 in the legatee on the death of the testator. (Collins v. Macpher- 
 son, 2 Simons, 87.) The death, therefore, of the legatee within 
 the year, occasions no lapse of the legacy, and the interest of the 
 legatee is transmitted to his personal representatives. 
 
 But where the future time of payment is defined in the will, the 
 legacy will be vested or contingent, according as upon an exami- 
 nation of the whole instrument, it appears whether the testator 
 meant to annex the time to the payment of the legacy, or to the 
 bequest of it. It resolves itself, therefore, into a question of in- 
 tention ; to ascertain which, the courts of equity, following the 
 practice of the ecclesiastical courts, in this respect, have estab- 
 
356 LAPSE. 
 
 lished two positive rules of construction, 1st. That a bequest to a 
 person, payable or to be paid, at any certain determinate term, 
 as when the legatee shall arrive at the age of twenty-one years, 
 or be married or the like, confers on him a vested interest, imme- 
 diately on the testator's death ; it being considered as debitum in 
 presenti, solvendum in future, and, therefore, transmissible to his 
 executors or administrators. (2 Fonb. Eq., b. IV, part 1, ch. 1, 
 § 3. Toller, 305, 171, 172.) 2d. That if the words payable or 
 to be paid are ommitted, and the legacy is given, at twenty-one, 
 or wh/en, or if the legatee shall attain the age of twenty-one, or 
 if he shall survive B., or the like, these expressions annex the 
 time to the substance of the legacy, and make the legatee's right to 
 depend on the happening of the event contemplated. In short, they 
 constitute it a contingent legacy. The attaining twenty^one, or 
 surviving B., is a condition precedent, the performance of which 
 is necessary to vest the legacy. And consequently if the legatee 
 happens to die before that period, his personal representatives 
 will not be entitled to the legacy. {Preston on Legacies, 104. 
 
 2 p. Wms. 610 to 612. Patterson v. Ellis, 11 Wend. 259, 671.) 
 The doctrine with its qualifications and the cases by which it is 
 supported will be found stated in the cases above cited. 
 
 The rule, however, is subject to exceptions, arising from the 
 intention of the testator. Thus, where the testator gives a legacy 
 to a person at a future period, or when, or if, he shall arrive at 
 the age of twenty-one years, dr directs it to be applied for his 
 benefit, the courts have considered this disposition of the interest, 
 as an indication of the testator's intention, that the legatee shall 
 at all evesits, have the legacy, and, therefore, have held the legacy 
 under such circumstances to be vested. {Fonereau v. Fonereau, 
 
 3 Atk. 645.) 
 
 We will now notice the doctrine of the lapsing of legacies pay- 
 able out of the real estate of the testator. 
 
 The principle applicable to a bequest out of the personal estate, 
 viz. that a legacy to a person payable at a future time, contains a 
 present vested interest, as debitum in presenti, sOlvendum in fu- 
 turo, does not hold, generally speaking, in regard to legacies pay- 
 able out of the real estate. 
 
LAPSE. 357 
 
 The reason for this diversity is stated in the books to be, that 
 the rule in relation to legacies, out of the personal estate, was 
 borrowed from the civil law, in which a bequest to be paid at a 
 future time, was held to confer a present right to the legacy. 
 And anciently the ecclesiastical courts had the exclusive jurisdic- 
 tion of legatory matters arising on personal estates, and their de- 
 cisions were regulated by the civil law. When the courts of 
 equity acquired cognizance of this class of legacies, they adopted, 
 with a view to a uniformity of decision, the rule in question with 
 regard to legacies. But legacies payable out of'land were never with- 
 in the cognizance of the ecclesiastical courts ; there was not, there- 
 fore, the same reason for adopting the rule of the civil law ; and 
 as the heir is the special favorite of the courts in England, they 
 established a course of decisions more favorable to the inherit- 
 ance. 
 
 This rule, however, is qualified by an exception as firmly fixed 
 as the rule itself The rule, as it now exists, both here and in 
 England, in respect to the vesting of legacies payable out of real 
 estate, is thus correctly stated by V. Chancellor McCoun, in 
 Marsh v. Wheeler, (2 Ed. Ch. Rep. 163,) and approved by 
 Chancellor Walworth in Harris v. Fly, (7 Paige, 429,) " Where 
 the gift is immediate, but the payment is postponed, for instance, 
 until the legatee attains the age of twenty-one years, or marries, 
 then it is contingent, and will fail if the legatee dies before the 
 time of payment arrives ; but where the payment is postponed in 
 regard to the convenience of the person, and the circumstances of 
 the estate charged with the legacy, and not on account of the age, 
 circumstances, or condition of the legatee, in such a case it will be 
 vested, and must be paid, although the legatee should die before 
 the day of payment." The same doctrine is sustained by the 
 court of appeals, in Sweet v. Chase, 2 Cmnstock, 72. Birdsall v. 
 Hewlett, 1 Paige, 32, S. P. 
 
 As the rule and its exception are founded on the supposed in- 
 tention of the testator, it will be controlled by a direction in the 
 will, that the legacy should vest at the death of the testator. 
 ( Watkins v. Cheek, 2 Sim. Sf Stu. 199.) ' 
 
 It sometimes happens that legacies are charged on a mixed 
 fund of realty and personalty. In such a case, the personalty. 
 
358 LEGACIES, ABSOLUTE OR GONDITIOKAi. 
 
 unless there are special directions in the will to the contrary, is 
 the primary fund. So far as that fund extends to pay, the case 
 is governed by the same rules that are applicable to legacies pay- 
 able out of the personal estate alone ; it is not until the real estate 
 has to be resorted to, that the case is governed by the principles 
 applicable to a legacy charged on the land. {Duke of Chandos v. 
 Talbot, 2 p. Wms. 613, and note. Dodge v. Manning, 11 
 Paige, 334. Hoes v. Van Hoesen, 1 Comstock,. 120.) 
 
 A legacy, therefore, of this kind is of a mixed character. It 
 may sometimes happen that, with reference to one fund, the legacy 
 may be vested, and, as to another, lapsed. 
 
 Legacies, we have said, are absolute or conditional. 
 
 An absolute legacy is where a thing of a personal nature is be- 
 queathed without any qualification ; as, " I give and bequeath to 
 A. one hundred dollars." 
 
 A conditional legacy is defined to be a bequest whose existence 
 depends upon the happening or not happening of some uncertain ' 
 event, by which it is either to take place, or be defeated. (1 
 Roper on Legacies, 645.) 
 
 Conditions are of two kinds : conditions precedent, and condi- 
 tions subsequent. 
 
 A condition, precedent is where some given event must happen, 
 or time arrive, before the vesting of the legacy. One kind of con- 
 ditions precedent has already been considered under the head of 
 contingent legacies ; as. where a legacy is given to A. if he shall 
 attain the age of twenty-one years. 
 
 The word " provided " is an appropriate term for creating a con- 
 dition precedent. {Robertson v. Caw, 3 Barb. S. C. R. 411. S. 
 G. on appeal, 1 Seld. 125, concurring with S. C on this point.) 
 Thus, in that case,]the will gave " to the associate reformed church 
 of Broadalbin five hundred dollars, provided the Rev. David 
 Caw continues to be their pastor for seven years to come, but if 
 not, then it must be paid over to said David Caw with interest." 
 It was held by the court of appeals that the condition annexed to 
 the bequest was valid ; and (the pastoral relations between said 
 Caw and said church having ^been dissolved by mutual consent, 
 
CONDITIONAL LEGACY. 359 
 
 within the seven years,) that no interest whatever vested in the 
 church, but that said Caw was entitled to the legacy. 
 
 A condition subsequent is where a legacy already vested, may 
 be defeated by the happening or not happening of some future 
 event, as where a legacy is given A to be paid at the age of 
 twenty-one, and, if he dies before that period, then to B. The 
 legacy to A. is vested, though payable at a future time, and the 
 limitation over to B is on condition subsequent ; to wit, the death 
 of A before he arrives at the age of twenty-one. {Nicholls v. 
 Osbarn, 2 P. Wms. 419.) 
 
 No precise form of words is necessary in order to create a con- 
 dition in a will. Lord Talbot very truly said, " There are no tech- 
 nical words to distinguish conditions precedent and subsequent ; 
 but the same words may indifferently make either, according to the 
 intent of the party who creates them." {Cases temp. Talbot, 
 196.) 
 
 Conditions are void when they are repugnant to the bequest, 
 illegal, or against public policy. Bac. Abridg. title Condition, 
 K. and L.) In such a case, the legacy is under certain circum- 
 stances good, the condition being a nullity or disregarded ; and, 
 under other circumstances, both the legacy and condition are void. 
 
 Conditions are said to be in terrorum only, where there is no 
 bequest over, on breach ^f the condition ; as if the testator be- 
 queaths to A one hundred dollars, and directs that if he disputes 
 the will, or the validity of it, the legacy shall fail. The legacy in 
 this case vests in A on the death of the testator ; but, as there is 
 no subsequent disposition of it, on failure of the condition, it is 
 presumed the testator intended the legatee should have it, at all 
 events. But if the will contains a f articular bequest over of the 
 legacy to some other person, on the failure of A to perform the 
 condition, the limitation over is good, and will take effect, on A's 
 failure to perform. [Cleaver y. Spurling, 2 P. Wms. 528.) 
 
 If a condition precedent annexed to a bequest is against good 
 morals ; as a legacy to a daughter, if she lived apart frmn her 
 husband, the condition is void, and the legacy simple and pure. 
 {Cooper V. Remsen, 5 J. Ch. R. 462.) This principle is bor- 
 rowed from the civil law. But if the condition be to do an act, 
 malum in se, as if a legacy be given to A, provided he kills B, 
 
360 LEGACY TO EXEOUTOKS. 
 
 burns a house, or the like, both the legacy and condition are void, 
 as well by the civil as the common law. [Swin. pt. 4, § 6, pi. 16.) 
 But a legacy by a father to his daughter, who, at the date of 
 the will, was living separate from her husband, in consequence of 
 domestic difficulties, expressed to be during her separation from 
 her said husband, is a charitable and humane provision. To 
 entitle the legatee, however, to this bequest, she must show 
 that the separation was not voluntary on her part, or occasioned by a 
 renunciation of her conjugal duties, and that the separation sub- 
 sisted at the death of the testator. A separation arising from 
 the fault of the legatee, or by the death of her husband, does not 
 satisfy the meaning of the testator. {Cooper v. Remsen, 3 J. Ch. 
 R. 382. S. C. 5 id. 459.) 
 
 Under this head of conditional legacies may be classed lega- 
 cies to executors. 
 
 It is a presumption that a legacy to a person appointed executor 
 is given to him in that character, and it is for him to show some- 
 thing, in the nature of the legacy, or other circumstances arising 
 in the will, to repel that presumption. {Dix v. Reed, 1 Sim. ^ 
 /S^M. 237.) A legacy of this nature is a conditional legacy, and 
 the right of the legatee to receive it depend^ on his assumption 
 of the office. 
 
 It is not necessary, in order to create the legacy a conditional 
 one, that it should be expressed to be for care or pains, or not. 
 It is enough, according to Lord Alvanly in Harrison v. Rowley, 
 4 Ves. 216, that it is given to him as executor. 
 
 But if there is no express condition stated, and the motive for 
 the legacy is set forth in the will, that it is bequeathed as a 
 mark of regard, or by reason of relationship of the legatee to the 
 testator, the legacy is pure and not conditional. {Dix v. Reed, 
 supra.) No doubt, a testator may make a bequest to an executor 
 in such terms, that the legacy will vest, though the legatee re- 
 nounces the office of executor. In such cases the language of the 
 will should be unequivocal. In Dix v. Reed, supra, the testator 
 bequeathed to two of his executors by name, a legacy upon the 
 express condition of accepting the trust. After bequeathing va- 
 rious other legacies he proceeds thus, " I give unto my cousin, 
 T. K. the sum of £50, whom I appoint as joint executor in trust 
 
LEGACY TO EXEOUTOES. 861 
 
 in this my will." T. K. did not accept the. trust but renounced, 
 and the other executors proved the will. The question was wheth- 
 er T. K. was entitled to his legacy, and it was held that he was. 
 The expressing a condition in the one case, and omitting it in the 
 other, afforded a presumption that the different legacies proceeded 
 from different motives. Besides, describing T. K. as his cousin, 
 afforded some evidence that the relationship was the inducement 
 for the legacy. 
 
 So where several executors were appointed, and among others 
 the testator's " friend and partner," to whom he gave legacies to a 
 large amount, so that he was entitled under the will to much 
 greater benefits than any of the other executors ; this circum- 
 stance was held sufficient to rebut the presumption that the legacy 
 was given in contemplation of the character of executor alone. 
 Gifts to persons simply in their characters of executors, would 
 naturally be equal, says the vice chancellor, because the trouble 
 is equal to all. {Cocker ell v. Barber, 2 Russ. Ch. R. 585.) 
 
 "With regard to what will be a sufficient manifestation of an in- 
 tention to accept the office of executor, so as to entitle the person- 
 al representatives of the legatee to the legacy, in case the legatee 
 should die before payment, proving the will, with the bona fide 
 intention to execute it, is sufficient to vest the legacy, though the 
 executor die before any thing further be done. If the executor 
 renounces the office altogether, or proves the will only, to entitle 
 himself to the legacy, and then gives up the trust, he does not 
 perform the condition, and is not entitled to the legacy. 
 
 In Harrison v. Rowley, 4 Ves. 212, the executor died before 
 probate ; but he had concurred with the other executors in giving 
 directions for the funeral, and in paying certain sums for burial fees, 
 for making the coffin and opening the vault, and there was no un- 
 reasonable delay in proving the will. It was held that the legacy 
 vested, and that the personal representatives of the deceased ex- 
 ecutor were entitled thereto. 
 
 In general it is the duty of an executor to whom a legacy is 
 given for care and pains to act promptly, and while any unneces- 
 sary delay of the legatee in accepting the trust, may be laid hold 
 gf by the court to deprive him wholly of the legacy, yet it seemq 
 46 
 
362 CUMULATIVE LEGACIES. 
 
 if the legatee finally accepts, he may be allowed such portion of 
 the legacy as his services bear to the whole duty imposed upon 
 him by the will, as the inducement for giving the legacy. (^Morris 
 V. Kent, 2 Edw. V. Ch. R. 174.) 
 
 Sometimes a question arises under a will, whether in case there 
 be two legacies of the same thing or amount, to the same indi- 
 vidual, the latter shall be treated as cum.ulative, or only a repeti- 
 tion of the first legacy. Where the legacies are cumulative the 
 legtaee takes both ; but if the latter is a mere repetition of the 
 first, being the same thing given twice, the legatee takes but one. 
 The latter is usually, in such a case, a substitution for the former. 
 The whole doctrine on this subject was well -reviewed, and the 
 cases collected by the supreme court in De Witt v. Yates, 10 
 John. R. 156. 
 
 In deciding the question whether a legacy is cumulative, or is 
 merely a repetition, the intention of the testator is the rule of con- 
 struction. This intention must be ascertained according to the 
 rules of law, and the cases in which the question arises are usually 
 classed by the writers as follows : 
 
 1st. Where there is no evidence of intention, either internal or 
 extrinsic, one way or the other. 2d. Where there is internal evi- 
 dence ; and 3d. where there is extrinsic evidence. 
 
 1st. Under the first head, to wit, where there is no evidence of 
 intention, internal or extrinsic, there are four positions laid down 
 by the elementary writers and supported by adjudged cases. 
 They are as follows : 
 
 1. Where the same specific thing is bequeathed twice to the 
 same legatee, either in the same will, or in the will and again in 
 a codicil, in that case, he can claim the benefit only of one legacy, 
 because it could be given no more than once. {Toller, 335. 
 De Witt v. Yates, supra.) 2. Where the like quantity is be- 
 queathed to him twice, by one and the same instrument, the lega- 
 tee is entitled to one legacy only. (1 P. Wms. 424, note 1.) 
 
 3. Where the bequest is oi unequal quantities in the same instru- 
 ment, the one is not merged in .the other, and the legatee is entitled 
 to both, the one being cumulative to, or in addition to the other. 
 
 4. And lastly, where the bequest is of equal or unequal quantities, 
 
ELEOTION— SATISFACTION. 863 
 
 bequeathed in different instruments, the legatee shall take both, 
 the legacies being cumulative. {Masters v. Masters, 1 P. Wms. 
 424.) 
 
 2. Under the second head, to wit, where there is internal evi- 
 dence, it may be observed that the second legacy may be so ex- 
 pressed, or the other circumstances may be such, as to remove all 
 doubt on the subject. Thus, where a later codicil appears to be 
 merely a copy of a former, with the addition of a single legacy, or 
 where both legacies are given for the same cause, they are not 
 cumulative. The intention of the testator, whether he meant a 
 duplication of the legacy, may be inferred from slight circumstan- 
 ces. {Masters v. Masters, supra.) 
 
 3. Under the third head, to wit, where there is extrinsic evi- 
 dence, it may be remarked that, although parol evidence is inad- 
 missible against the expressed effect of a written instrument, it is, 
 nevertheless, proper to show the circumstances and situation of 
 the testator at different periods. {Hurst v. Beach, 5 Mad. Rep. 
 351.) Hence, if a testator, after making his will, and before the 
 execution of a codicil, has received an additional estate, it may be 
 proved as affording evidence that he intended, by a legacy in the 
 codicil, an additional bounty to the legatee. {Masters v. Mas- 
 ters, supra.) 
 
 It sometimes happens that a devise or legacy is given to a 
 widow in lieu of dower, and this gives occasion to examine the 
 doctrine of election, so far as it relates to testamentary matters. 
 
 Every devise or bequest in a will imports a bounty, and, there- 
 fore cannot, in general, be averred to be given in satisfaction for 
 that to which the devisee or legatee is by law entitled. Upon 
 this principle, a devise cannot be averred to be in satisfaction of 
 dower, unless it be so expressed in the will. ( Van Orden v. Van 
 Orden, 10 John. 30. 1 Cruise Dig. 180, ch. 4, tit. Dower. Lash- 
 er V. Lasher, 13 Barb. 106.) 
 
 The doctrine of election in this state most frequently arises out 
 of devises and legacies, in which one party claims that such 
 devise or legacy is in lieu of dower, and the other insists on re- 
 taining both. If the legacy or devise be in express terms, in lieu 
 of dower, the widow is doubtless put to her election, for she can- 
 
364 ELECTION— SATISFACTION. 
 
 not take both. The revised statutes have made full provision on 
 this subject in affirmance of the common law. (1 R- ^> T41.) 
 The full consideration of this branch of the subject belongs to 
 treatises on dower. 
 
 It is in cases where the legacy or devise is not in express terms 
 declared to be in lieu of dower, that there is any room for 
 argument or doubt. As the right to dower is a legal right, the 
 wife cannot be deprived of it by a testamentary provision in her 
 favor, so as to put her to an election, unless the testator has man- 
 ifested his intention to deprive her of dower, either by express 
 words or necessary implication. (Willard's Eq. Juris. 547. 
 Fuller V. Yates, 8 Paige, 328. Adsit v. Adsit, 2 John Ch. R. 
 451. Hawley v. James, 5 Paige, 318. Wood v. Wood, id. 596. 
 Sandford v. Jackson, 10 id. 266.) The cases go so far as to 
 show that the claim of dower must be inconsistent with the will, 
 or repugnant to its dispositions, or some of them, before we can 
 deduce an implied intention to bar dower. In short, the claim 
 cannot be resisted by implication, unless the allowance of it 
 would disturb or disappoint the will. {See same cases.) 
 
 The principles applicable to baring dower by the acceptance of 
 a testamentary provision in lieu of it, may be extended to baring 
 the widow's claim to exempt property in the like manner. It has 
 been seen already, that there are certain articles exempt by law 
 in favor of the widow and minor children. These cannot be be- 
 queathed away by the testator, or taken to satisfy the claims of 
 creditors. They are sacredly devoted to the humane purpose of 
 alleviating the calamities of widowhood and orphanage. Suppose 
 the testator bequeaths one cow to his wife, without expressing it to 
 be in lieu of the one belonging to her by law, as the widow, and the 
 testator dies possessed of several cows, the question is often asked, 
 is the widow, in such a case, entitled to the cow bequeathed to 
 her, and also the one exempted in her favor by law ? In my judg- 
 ment, she is entitled to both. The one she receives as a bounty 
 from her husband, and the other by force of the law. It stands 
 on the same footing as her claim to dower, and may be barred in 
 the same way. In each case, the statutory provision in favor of 
 the widow is beyond the reach of the testator, through the means 
 
LEGACY TO OEEDITOE. 365 
 
 of his ■will, against her consent ; and in each her right is para- 
 mount to that of creditors, or the kindred of the husband. 
 
 The testator may, however, annex a condition to the bequest, 
 that it shall be in lieu of the articles exempt by law ; in which 
 case she would be put to her election between the exempt articles 
 and the bequest. If the testator left but one cow, and bequeathed 
 one cow to his wife in general terms, she would be entitled to the 
 one he left, under the statute ; and whether she would be entitled 
 to call on the executors to purchase another to answer the bequest, 
 would depend on other parts of the will and the state of the assets. 
 If the cow was so described in the will as to indicate that the par-' 
 ticular cow he owned at his death, was the one intended by the 
 will, the executors would not be required to purchase another, but 
 the widow would take the only cow, under the statute. It would 
 be analogous to a will merely directing that his wife should have 
 what the law gives her, in which case she takes nothing under the 
 will. 
 
 Section II. 
 
 Of the effect of legacies on the relation of debtor and creditor. 
 
 1. Of legacies to a creditor in satisfaction of a debt due by the 
 testator to the legatee. It was said by the supreme court, in 
 Williams v. Crary, (5 Cotnen, 370,) that although it is a general 
 rule that a legacy given by a debtor to his creditor, which is equal 
 to or greater than the debt, shall be considered as a satisfaction of 
 it ; yet, where there are any circumstances in the case to repel 
 the presumption that such was the intention of the testator, courts 
 have always seized upon them to prevent the application of the 
 rule. It has never been applied to the case of a debt existing in 
 an open and unliquidated account ; because the testator, in such a 
 ease, is not supposed to know how the balance stands, and wheth- 
 er the legatee is a creditor or not. (^ee the same case, 8 Cowen^ 
 246, and 4 Wend. 443.) 
 
 The subject was very fully examined by the chief justice, in 
 4 Wendell, supra, and the exceptions- to the rule stated. An 
 attentive examination of that case, and those cited in the discus- 
 sion, enable us to state the following circumstances as sufficient 
 
366 LEGACY TO DEBTOR. 
 
 to rebut the presumption that the legacy was intended as a pay- 
 ment of a debt, and showing that it was intended as a bounty. 
 
 1. A legacy is never deemed a satisfaction of debts contracted 
 after the date of the will. 2. It is not considered as a payment 
 when the will contains an express direction that the debts and 
 legacies shall be paid, as " after all my debts and legacies are paid 
 then I give," or words of like import. 3. Nor is a satisfaction of 
 a preexisting debt occasioned by a legacy bequeathed for a differ- 
 ent purpose, as where the particular purpose or motive for the gift 
 is stated, and the debt not mentioned ; as where the testator be- 
 queaths a sum of money, or other thing, to the legatee as a token 
 of regard, or from ancient friendship, or from relationship and the 
 like. 4. Where the legacy is contingent and uncertain, or payable at 
 a future time, or upon condition, it is not a satisfaction, and the 
 legatee is entitled both to the debt and legacy. 5. If the legacy 
 is less than the debt, or the debt is unliquidated, or in negotiable 
 paper, or in a current account, the legacy does not impair the 
 debt. 6. Where the legacy is of a different nature from the debt, 
 as where the testator is indebted by bond and bequeaths an in- 
 terest in land. 7. A specific legacy, however valuable the bequest 
 is never a satisfaction unless so expressly declared in the will, and 
 so accepted by the legatee. 
 
 In all cases where the legacy does not operate as a payment or 
 satisfaction of the debt, the legatee is entitled both to the debt and 
 legacy. And where the property is sufiScient to satisfy all, the 
 testator may be both just and generous. But where there isa de- 
 ficiency of assets there is a stronger reason for holding the legacy 
 a satisfaction, and accordingly it is laid down by respectable au- 
 thority, that it shall in all such cases be deemed a satisfaction. 
 {Toller, 337.) 
 
 A bequest of a debt to a debtor is no more than a release by 
 will. It will not take effect in case there is a deficiency of assets 
 for the payment of debts ; because the debt itself is assets in the 
 hands of the executor, and the legacy cannot operate without his 
 assent. {Rider v. Wager, 2 P. Wms. 831, 332.) 
 
 2. Of legacies by a creditor to his debtor. At common law 
 the appointing of a debtor executor operated as a release or extin- 
 
LEGACY TO DEBTOR. 367 
 
 guishment of the debt. ( Wentworth's Ex'rs, 73.) The principle 
 was that a debt is merely a right to recover the amount by way of 
 action, and as an executor could not maintain an action against 
 himself, his appointment to that effect by his creditor, supended 
 the action for the debt. And where a personal action was once 
 suspended by the voluntary action of the party entitled to it, it 
 was forever gone, (/d and Co. Lift. 264, b.) 
 
 The rule was the same where a creditor appointed one of several 
 debtors, executor ; for they could not sue without making him who 
 is the debtor plaintiff, which could not be against himself. ( Went- 
 worMs Ex'rs, 74, 75.) This principle, that making the debtor 
 executor discharged the debt, was held to apply only in cases where 
 there was a sufficiency of assets to pay all the debts, without re- 
 sorting to the debt thus released. But where there was such 
 deficiency at common law, a court of equity held the debtor exec- 
 utor liable to pay. {Freakley v. Fox, 2 B. Sf C. 134, per Lord 
 Tenterden, C. J.) And, indeed, the presumption of a discharge 
 was allowed to be repelled by express terms, or by implication 
 from the contents of the will, as by a specific legacy to the exec- 
 utor, or of part of the debt to another, or of the residue among 
 several executors ; or if the executor be a mere trustee of the 
 whole estate, or the debt arises in respect of the real estate in 
 favor of the heir. ( Wentworth's Ex'rs, 74, note and cases. 
 Stagg V. Beekman, 2 Edw. V. Ch. R. 89. Berry v. Usher, 
 11 Ves. 87. Fox v. Fox, 1 Atk. 463.). 
 
 In 'this state, the legal effect of making a debtor executor is 
 changed from what it was at common law, and a rule more con- 
 sonant to equity is adopted. Thus it is enacted, that the making 
 of any person executor in a will shall not operate as a discharge 
 or bequest of any just claim, which the testator had against- such 
 executor, but such claim shall be included among the credits and 
 effects of the deceased in the inventory, and such executor shall 
 be liable for the same, as for so much money in his hands at the 
 time such debt or demand becomes due ; and he shall apply and 
 distribute the same in the payment of debts and legacies, and 
 among the next of kin, as part of the personal estate of the de- 
 ceased. (2 R. S. 84, § 13.) 
 
 The subsequent section provides that the discharge or bequest 
 
368 WHO MAY BE A LEGATEE. 
 
 in a will of any debt or demand of the testator, against any exec- 
 utor named in his will, or against any other person, shall not be 
 valid as against the creditors of the deceased ; but shall be con- 
 strued only as a specific bequest of such debt or demand. It is to 
 be included in the inventory, as has been before stated, and applied 
 in the payment of debts. If, however, there are assets enough to 
 pay debts without it, it is treated as a specific bequest to the ex- 
 ecutor, and is to be paid in the same manner and in like propor- 
 tion as legacies of that kind. 
 
 At common law, the appointing of a creditor of the testator ex- 
 ecutor, conferred upon him the power of paying himself first, if his 
 debt was by specialty or of record. ( Wentworth's Ex'rs, 76.) This 
 right of retainer, as it was called, we have seen is abolished in this 
 state. (2 R. S. 88, § 33.) The policy of the law is to put all 
 creditors of the same class on an equality, and to permit no debt 
 or claim to be satisfied, when belonging to an executor or adminis- 
 trator until it shall have been allowed by the surrogate. ( Wil- 
 liams V. Purdy, 6 Paige, 166. Smith v. Kearney, 2 BarJ). 
 Ch. R. 533. Treat v. Fortune, 2 Bradf. 116.) 
 
 Section III. 
 
 Of the person capable of being a legatee, and of certain rules 
 of construction, not only of the will, but with regard to the 
 thing bequeathed, and the person to whom it is bequeathed. 
 
 I. It may be remarked, in general, that all persons are capable 
 of being legatees, with some special exceptions. The case of sub- 
 scribing witnesses to a will, has been considered in a former part of 
 this treatise. A bequest to them is void if the will cannot be 
 proved without them. (2 R. iS. 65, § 50. 1 id. 719. Caw v. 
 Robertson, 1 Seld. 125.) 
 
 With regard to a devise of real estate, it is enacted that such 
 devise may be made to every person capable, by law, of holding 
 real estate ; but no devise to a corporation shall be valid unless 
 such corporation is expressly authorized by its charter, or by 
 statute, to take by devise. (2 R. S. 57, § 3.) 
 
 To constitute a valid legacy or devise, there must be a person, 
 natural or artificial, capable of taking under the will. (See 
 
CONSTEUCTION OF WILLS. 369 
 
 9 Cranch, 292.) A mere society or association of individuals, 
 not incorporated, is incapable of being a legatee or devisee, un- 
 less, indeed, the case falls under the denomination of charitable 
 uses. [See WillarcTs Eq. Juris. 569 to 598. Williams v. 
 Williams, 4 Seld. 524, where the principal cases on the subject 
 of charities are collected and reviewed.) 
 
 2. As to construction of wills, generally. There are some 
 rules of construction applicable to wills, which have been adopted 
 as elementary principles. 1. The intention of the testator must 
 control, if it is not inconsistent with the rules of law. This in- 
 tention must be collected from the will itself, and from the whole 
 will ; and parol evidence is inadmissible to explain, vary, or en- 
 large the words of it, except in case of a latent ambiguity. [Co- 
 venhoven v. Shuler, 2 Paige, 122. Ralhhone v. Dyckman, 3 id. 
 26. Mann v. Mann, 14 John. 1. S. C, 1 John. Ch. Rep. 231. 
 20 Wend. 469.) 2. No particular words are necessary to pass 
 an estate, but any words that show the intention of the testator 
 are sufficient. The language of a will should be construfed ac- 
 cording to its primary and ordinary meaning, unless the testator 
 has manifested an intention, in the will itself, to give it a different 
 signification. {Hone v. Van Schaick, 3 Comst. 538. S. C, 
 3 Barb. Ch. R. 488. Matter of Hallett, 8 Paige, 375. Cromer 
 v. Pinckney, 3 Barb. Ch. R. 466.) 3. The situation of the testa- 
 tor's family, and collateral circumstances, may be considered in 
 construing a will. ( Wolfe v. Van Nostrand, 2 Comst. 436. Irv- 
 ing V. De Kay, 9 Paige, 522.) 4. In construing a will, words 
 may be transposed to get at the correct meaning. {Pond v. 
 Bergh, 10 Paige, 140. Mason v. Jones, 2 Barb. S. C. R. 229.) 
 5. If two parts or provisions of a will are repugnant, so that 
 both cannot stand, the last will prevail, unless other parts of the 
 will forbid it. {Bradstreet v. Clark, 12 Wend. 602. Covenhoven 
 v. Shuler, 2 Paige, 122. Mason v. Jones, 2 Barb. S. C. R. 229. 
 Parks V. Parks, 9 Paige, 107.) 6. A subsequent clause, appa- 
 rently irreconcilable with precedent provisions, will be construed 
 in connection with them, and may be rejected if repugnant to 
 47 
 
370 OOXSTRUOTION' OF WILLS. 
 
 the intention of the test-ator, as derived from the whole will. 
 {Bradly v. Amidon, 10 Paige, 235.) 7. A will and codicil are 
 to be taken and construed together as parts of one and the same 
 instrument. ( Westcott v. Cady, 5 John. Ch. R. 334.) 
 
 3. Of the construction of wills, with regard to the thing be- 
 queathed. Formerly, in wills of real estate, if the devise contain- 
 ed no words of limitation or perpetuity, the devisee took only an 
 estate for life. {Jackson v. Wells, 9 J. R. 222. Jackson v. 
 Embler, 14 J. R. 198.) The courts, however, in order to carry 
 out the intent which is considered the polar star in the construc- 
 tion of testamentary instruments, were accustomed to seize hold 
 of other expressions besides the word " heirs," as aifording evidence 
 , that a fee was intended to be passed. Thus, it was often held 
 that the word '' estate " was sufficient to pass a fee. [Jackson v. 
 Merrill, 6 /. R. 185. Same v. Delancy, 13 id. 537, 553, per 
 Kent, Chancellor. S. C. 11 id. 374, per Yates, J.) That word 
 was held applicable to both real and personal estate, and might 
 include a debt and mortgage. 
 
 To avoid disputes with respect to the precise words necessary to 
 convey a fee, it was enacted in the revised statutes that every will 
 that shall be made by a testator, in express terms, of all his real 
 estate, or in any other terms, denoting his intent to devise all his 
 real property, shall be construed to pass all the real estate which 
 he was entitled to devise at the time of his death. (2 R. S. 57, 
 § 5.) But this statute only operates upon wills made subsequent 
 to the revised statutes of 1830. Wills executed before that time, 
 are not touched by those statutes. {Parker v. Bogardus, 1 Seld. 
 309.) 
 
 The introductory clause of a will is very material to the inquiry 
 concerning the intention of the testator in relation to the quantum 
 of estate devised. {Per Bronson, J, Fox v. Phelps, 17 Wend, 
 393.) They are, however, often words of course ; and in order to 
 enlarge the estate, they should be in some way connected in the 
 body of the instrument, or otherwise with the more important de- 
 vising clause. {Per Nelson, Ch. J, in Barheydt v. Barheydt, 20 
 Wend. 576.) 
 
CONSTRUCTION OF WILLS— CHARGE. 371 
 
 A devise of all one's right carries a fee simple to the devisee. 
 {Newkirk v. Newkirk, 2 Caines, 345. 4 Kent Com. 535 et seq.) 
 
 Sometimes a charge upon real estate creates a fee without any 
 other words. Thus, where the charge is on the estate, and there 
 are no words of limitation, the devisee takes an estate for life only ; 
 but where the charge is on the person of the devisee, in respect 
 to the estate in his hands, he takes a fee by implication. {Jack- 
 son V. Bull, 10 J. R. 148. Harvey V. Olmsted, 1 Comst. 488, 
 aff. 1 Barbour, 102.) But to raise a fee by implication, the 
 charge must be absolute, and not contingent. {Id.) 
 
 A contingent charge on the real estate devised will not carry a fee. 
 A. devised as follows : " As touching such worldly estate where- 
 with it hath pleased God to bless me, I give, devise, and dispose of 
 the same in the following manner and form ;'' he then enumerates 
 certain specific legacies, and devises to his son " all the certain lot 
 of land which I now possess, with the farming utensils," «fec., and 
 adds, "all these legacies before mentioned to be paid on the 1st 
 May, 1805, and to be raised and levied out of my estate," and 
 then appointed his son H> and another person his executors. It 
 was held that H. took only an estate for life ; the charge being on 
 the testator's estate generally, it was contingent as to the real 
 estate, that is, the personalty must be exhausted before the real 
 estate could be resorted to. {Jackson v. Harris, 8 J. R. 141.) 
 This case was decided before the revised statutes, but the question 
 as to the charge is the same now as it was then. 
 
 The foregoing observations relate to devises and charges on the 
 real estate. With regard to the construction of wills of personal 
 estate, or of such as dispose of both real and personal property, a 
 few words will be added. 
 
 The word " goods" is nornen generalissimun, and when con- 
 strued in the abstract will comprehend all the personal estate of 
 the testator, as stock, bonds, notes, money, plate, furniture, &c. 
 And a bequest of all the testator's " chattels" will have the same 
 effect as a bequest of all the " goods and chattels." So the word 
 " effects," standing alone, will pass the whole of the testator's resi- 
 duary estate. (1 Atk. 180. 3 id. 62. 1 P. Wms. 267. Camp- 
 bell V. Prescott, 15 Fes. 507.) 
 
 Under a bequest of " goods and chattels generally," choses in 
 
372 COlSrSTKUOTION OF BEQUESTS. 
 
 action, bank notes being considered as cash, and money to a small 
 amount, and leaseholds also, will pass. (1 P. Wms. 267.) But 
 if the words are restricted to a particular place, as " all my goodg 
 and chattels at A," bonds and choses in action will not pass, be- 
 cause choses in action have no locality. {Id. and note. Chapman 
 V. Hart, 1 Yes. sen. 273.) 
 
 Under a similar bequest of " goods and chattels in and about 
 my house and out-houses," running horses were held to pass. 
 [Countess of Gower v. Earl Gower, Ambler, 612.) 
 
 The term " household goods" is an expression of frequent use in 
 wills. It, in general, means articles of a permanent nature, and 
 not consumed in the enjoyment. {Pratt v. Jackson, 2 P. Wms, 
 302.) " Household stuff" inclucles all necessary household uten- 
 sils appertaining to the personal comfort or convenience of a 
 family, such as tables, 'beds, «fcc. ; and plate is held to pass under 
 such a bequest, if commonly used by the testator. {Masters v. 
 Masters, 1 P Wms. 424. 2 Fonh. Eq.'M2 et seq. Bunnv. 
 Winthrop, 1 J. Ch. R. 329.) 
 
 The term " household furniture" often occurs in wills. In gen- 
 eral, the term embraces such articles of domestic use and conven- 
 ience as are suitable to the rank and condition of the testator. It 
 does not embrace books or wine. China will pass, unless it con- 
 stitutes the testator's stock in trade. {Porter v. Tmirnay, 3 Atk. 
 311. Kelly v. Powlett, Ambler, 605.) 
 
 Under a bequest of " clothes and linen whatsoever," body linen 
 only, and not table linen, was held to pass. (3 Atk. 62, 63.) 
 
 Where the testator bequeathed to his wife all the rest, residue, 
 and remainder of the moneys belonging to his estate, at the time 
 of his decease, it was held that the word " moneys" must be taken 
 in its ordinary acceptation, and to mean only cash and not bonds, 
 mortgages or choses in action, there being nothing in the will to 
 show that the testator intended to use the word in that extended 
 sense. {Mann v. Mann, 14 J. R. 1, aff. S. C.IJ. Ch. R. 231.) 
 Money, it was said in the same case, means gold or silver, or the 
 lawful currency of the country, or bank notes where they are 
 known and used in the market as cash, or money deposited in the 
 bank for safe keeping, and does not comprehend promissory notes, 
 bonds, mortgages, or other securities: 
 
OONSTKUOTIOIT OF WILLS— PEESON.- 873 
 
 The term " stock" has different meanings, and the construction to 
 be given to it in a -will, depends on other parts of the instrument, and 
 perhaps the occupation or condition of the testator. Thus, under 
 this denomination, are embraced money in the public funds, an 
 interest in an incorporated company, as bank stock, turnpike stock 
 and the like ; and cattle, such as oxen, cows, &c. and it would seem 
 growing crops. {Cox v. Godslave, 6 East, 604, note. West v. 
 Moore, 8 id. 339.) 
 
 Under a bequest of " movables," will pass both goods actively 
 and passively movables. {Swinh. 930.) It is said debts will not 
 pass under this general term ; though it is supposed this latter 
 construction is altered by the addition of the word " what- 
 sover." " Immovables" are held to relate to things attached to the 
 freehold, as trees and the like. The expression " in door movables," 
 and "out of door movables," is of frequent occurrence. The 
 former has a similar meaning to household furniture and the latter 
 to farming utensils, cattle and the like. But neither term seems 
 to comprehend money, choses in action, stock in trade, or things 
 appertaining to the person, such as clothing. (2 Fonh. Eq. b. 14, 
 pt- 1, ch. 1, §§ 8 to 11, and notes.) 
 
 A will of personal property speaks from the death of the tes- 
 tator. Hence, the general rule is that a will of personal property, 
 unless there are qualifying expr€ssions,conveys all the personal es- 
 tate of which the testator was possessed at his death. (Vah Vechteny. 
 Van Vechten,8 Paige, 104. Colliny. Collin, 1 Barb. Ch. R. 630.) 
 
 4. Of the construction of wills with regard to the person to 
 whom the bequest is made. It is quite obvious that a party claim- 
 ing a benefit under a will must show himself to be the person in- 
 tended as the object of the testator's bounty. The imperfection of 
 human language, and the infirmity of the human memory, often 
 lead to doubts and uncertainties which can be solved only by the 
 courts. The testator may forget the name of the individual to 
 ■whom he desires to give a legacy, or he may be mistaken in 
 some of the circumstances which tend to show his identity, or he 
 may describe him in such a way or in such language as to leave a 
 doubt as to his meaning. 
 
 A mere misdescription of the legatee does not render a legacy 
 
374 OONSTEUOTION OF WILLS— PERSON. 
 
 void, unless the ambiguity be such that it is impossible to ascer- 
 tain, either from the will itself or from proof dehors the will, who 
 was intended as the object of the testator's bounty. Smith v. 
 Smith, 4 Paige, 272.) 
 
 If the context of the will affords sufficient evidence of the iden- 
 tity of the person intended as the legatee, the] will alone must be 
 looked to in order to clear up the difficulty and determine the 
 question. If this be insufficient, after examining the whole will, 
 recourse must be had to parol evidence. {Smith v. Smith, 2 Edw. 
 V. Ch. Rep. 189.) 
 
 If there be no persons answering the description of the legatees, 
 in the legal sense of the term used in describing them, it is allow- 
 able to prove the situation of the testator's family, to enable the 
 court to ascertain the legatees intended. {^Gardner v. Heyer, 
 2 Paige, 11. 
 
 A legacy or devise to children without other description, as a 
 general rule, means, legitimate children ; and if the testator has 
 such children, parol evidence cannot be received to show that a 
 different class of persons was intended ; but he having only ille- 
 gitimate children, proof of circumstances dehors the will may be 
 given to show that they were the children intended, (/rf.) 
 
 Under the devise to children as a class, an illegitimate child 
 cannot take, if there be legitimate children living at the time 
 of making the will, unless there is something in the will to 
 show a contrary intention of the testator. {Collins v. Hoxie, 
 9 Paige, 81.) 
 
 The general rule, laid down by Mr. Preston, and which is well 
 supported by the authorities, is, that under a bequest to a class of 
 persons to vest in possession, at the testator's death, all answering 
 the description, and in esse at that period, will be entitled, this 
 being the time at which the objects are to be ascertained, and the 
 division to take place. For the same reason, where the fund is 
 given to be enjoyed at a future period, all persons born before that 
 period, and in esse at the specified time, will be entitled. Upon 
 the same principle, where a bequest is made to one for life, with a 
 limitation over after the death of the tenant for life to a class of 
 persons, as children, &c. all persons answering the description at 
 the testator's death, and who from time to time shall answer the 
 
CONSTEUOTION OF WILLS-PERSOK 375 
 
 description previous to the division of the fund viz, during the life 
 of the tenant for life, and who shall be in ventre sa mere at the death 
 of the tenant for life, will be embraced. And the representa- 
 tives of such of those deceased legatees, who have answered the 
 description subsequent to the estators's death, and before such di- 
 vision, will be entitled, equally with those legatees who shall be in 
 esse at the time of the division. In all these cases the court acts from 
 an anxiety to provide for as many children as possible with conven- 
 ience. Any children, therefore, coming in esse before a determinate 
 share becomes distributable to any one of the children, will be in- 
 cluded. [Preston on Legacies, 191 et seq. and the cases cited.) 
 
 The word "children" does not include grandchildren, or any 
 other than the immediate descendants in the first degree, of the 
 person named as the ancestor. But it may include them where 
 there were no children in existence at the time of the making the will ; 
 or where there could not be any children at the time, or in the event 
 contemplated by the testator ; or where the testator has clearly 
 shown, by the use of other words, that he used the word children 
 as synonymous with descendants, or issue, or to designate or include 
 illegitimate offspring, grandchildren or step children. {MowattY. 
 Carow, 7 Paige, 328.) 
 
 " Nephews and nieces" in the ordinary and primary sense of the 
 words, do not include grand nephews and grand nieces, or more 
 remote descendants ; but even if the testator leaves nephews and 
 nieces, the situation of the testator's family relatives, and the fact 
 that one of his sisters had at the time the will was made grand- 
 children, but no children, may be taken into consideration with the 
 provisions* of the will itself, to show that he meant to include 
 grand nephews and grand nieces, and even a great grand niece, in 
 the class of nephews and nieces. [Cramer v. Pinckney, 3 Barb. 
 Ch. R. 466.) 
 
 Under a bequest to " descendants," all the issue of the testator 
 will be included, however remote. [Crossly v. Clare, Amhl. 397.) 
 
 Where the term " heirs" is used to denote succession as a legacy 
 " to the heirs of A," it means such persons as would legally succeed 
 to the property according to its nature and quality. If it is per- 
 sonal property, the next of kin of A are entitled ; if real property, 
 his heirs at law; who may in some instanpes, even under our 
 
376 AMBIGUITY. 
 
 statute, be a different class of persons from the /next of kin. 
 (1 Jac. Sf Walk. 388, Yaux v. Henderson.) But where the 
 word is not used to denote succession, but to describe a legatee, 
 and there is nothing in the other parts of the will to explain it, 
 there is no reason, it would seem, to depart from the natural and 
 ordinary sense of the word " heir." And in such a case if there 
 are more heirs than one, they all take jointly. {Mounsey v. Blamire, 
 4 Russell, 384.) 
 
 Under a bequest to the " issue" of A, all the descendants of A, 
 viz., children, grandchildren, &c., are included. They take in 
 such a case per capita and not per stirpes. (3 Bro. 257.) 
 
 A bequest to " next of kin" is confined to those persons who 
 are entitled under the statute of distribution, as nearest of kin, and 
 does not include those who claim by representation, or the widow. 
 ( Garrick v. Lord Catnden, 14 Yes. 873.) 
 
 A bequest by a husband to his " beloved wife," not mentioning 
 her by name, applies exclusively to the individual who answers the 
 description at the date of the will, and is not to be extended to an 
 after taken wife, unless the will shall have been republished after 
 the second marriage. {G-arrat v. Niblock. 1 Russell ^ Mylne, 
 629. 5 Yes. 676.) 
 
 A bequest to " legal representatives" is held to point to such 
 persons as are embraced in the statute of distributions ; but a bg- 
 quest to " personal representatives" has been held to include the 
 executor. {Jennings v. Gallimore, 3 Yes. 146. 1 Anst. 128.) 
 
 Uncertainty in the description of the legatee, or ambiguity in a 
 will, sometimes defeats altogether the object of the testator. If 
 the difficulty be such that it cannot be obviated by parol proof, the 
 legacy will fail. 
 
 But a misnomer of a legatee, or a mistake in his name, will not 
 defeat the legacy, provided it can be satisfactorily shown, who was 
 intended by the testator. ( Thomas v. Stevens, 4 .1 Ch. R. 271. 
 Connolly v. Pardon, 1 Paige, 291. Banks v. Phelan, 4 Barb. 
 S. C. R. 80.) 
 
 A mistake or ambiguity may be corrected or explained either by 
 the context or by parol proof {Stockdale v. Bushhy, 19 Yes. 381.) 
 
PAYMENT OF LEGACIES. 377 
 
 There are two kinds of ambiguity, viz : a patent ambiguity and a 
 latent ambiguity. A patent ambiguity is one which appears on 
 the face of the instrument itself, and renders it ambiguous and un- 
 intelligible ; as if in a will there were a blank left for the de- 
 visee's name. (Broom's Maxims, 469. Smith on Contracts, 28.) 
 Such an ambiguity cannot be explained by parol proof. ( Tole v. 
 Hardy, 6 Cowen, 341.) 
 
 A latent ambiguity is where the instrument itself is on the face 
 of it intelligible enough ; but a difficulty arises in ascertaining the 
 identity of the subject matter to which it applies, as if a devise 
 were to John Smith, without further description. This devise is 
 perfectly intelligible until it comes to be shown that there are 
 more John Smiths than one. It then becomes uncertain which of 
 them was intended. As this ambiguity is created by the proof 
 of extrinsic facts, so it may be removed in the same way. ( Tole 
 v. Hardy, supra. Smith on Contracts, 28. 1 Greenl. Ev. § 297, 
 et seq. Phillips^ Ev. 534 to 538, 4 Am. from 1th Land. ed. 
 and Cowen ^ HilVs Notes to same.) 
 
 CHAPTER IV. 
 
 OP THE PAYMENT OP LEGACIES, AND HEREIN OP THE PAY- 
 MENT OP THE RESIDUE, AND OP DISTRIBUTIVE SHARES. 
 
 Section I. 
 Of the time of payment. 
 
 The general rule is, that legacies are not to be paid until the 
 debts of the deceased are all satisfied. If, in any case, a legacy is 
 directed to be paid before the period has elapsed for exhibiting 
 claims against the estate, the executor or administrator is author- 
 ized to require a bond from the legatee with two sufficient sureties, 
 conditioned to refund the whole, or a ratable proportion, in case 
 of a deficiency of assets. (2 R. S. 90, s 44.) 
 
 At common law the time allowed for paying a legacy was a year 
 from the death of the testator, where no time was specified in the 
 48 
 
378 PAYMENT OF LEGACIES. 
 
 * 
 will. Our statute directs that na legacy shall be paid by an ex- 
 ecutor or administrator until after the expiration of one year 
 from granting letters testamentary or of administration, unless the 
 same is directed by the will to be sooner paid. {Id. § 43. Brad- 
 ner v. Falkner, 2 Kei-nan, 472.) 
 
 If the will does not direct it to be sooner paid, the surrogate has 
 no power, on the application of a legatee, or a relative entitled to 
 a distributive share, except when needed for the support of the 
 applicant, and which will be noticed hereafter, (2 R. S. 98, §§ 82, 
 83 ; Seymour v. Butler, 3 Bradf. 193,) to decree payment of 
 such legacy or distributive share, or its proportional part, until 
 after one year has elapsed from the granting of letters testamen- 
 tary or of administration. (2 R. S. 116, § 18.) If the executor 
 or administrator has pursued the course pointed out by the statute 
 of obtaining an order and publishing notice to exhibit claims 
 against the estate, of which we have treated in a preceding chap- 
 ter, he will be able, at the expiration of a year from the date of 
 his letters, to ascertain the condition of the estate. If he finds it 
 such as to enable him to satisfy the debts and legacies, he may 
 then proceed to discharge both. He will incur no risk in paying 
 legacies, and cannot exact a bond from the legatee. Should a 
 subsequent claim arise, after payment of all the assets to the 
 creditors, legatees, and next of kin, the executor is not responsible ; 
 but the claimant must follow the assets into the hands of the 
 legatees and next of kin to whom they have been paid. As has 
 already been remarked elsewhere, he assumes that the claims pre- 
 sented under the six months' notice, embrace all that exist against 
 the estate, and acts accordingly. Parties having demands against 
 the estate, either as legatees, creditors, or next of kin, have a right 
 to presume that the executor or administrator has adopted the 
 steps pointed out by the statute, and to require payment of their 
 respective claims. 
 
 It is important, as well for the safety of the executor or admin-: 
 istrator as for the interest of those persons to whom as creditors, 
 legatees, or distributees, the estate in truth belongs, that the 
 former should pursue the steps pointed out by the statute. The 
 provisions of the act allowing an executor or administrator, after 
 the expiration of eighteen months from the date of his letters, to 
 
EXECUTOR'S ASSENT TO A LEGACY. 379 
 
 render a final account of all his •proceedings, and which allow him 
 to render such account, when cited by some person having a de- 
 mand on the estate, and thus obtain a final settlement, seem to be 
 based on the supposition that the executor or administrator has 
 pursued the requisite steps to notify the creditors to present their 
 demands. It is a general principle that a decree binds no person 
 who is not a party to the proceeding. Creditors who have not 
 been called upon by a notice to present their claims cannot fairly 
 be deemed guilty of laches by not exhibiting them. At common 
 law the debtor is required to seek the creditor ; the statute inverts 
 this order of things in favor of parties thus acting in a representa- 
 tive capacity. 
 
 Section II. 
 Of the assent of the executor to a legacy. 
 
 The entire personal estate of the testator vests, at his death, in 
 his executors, who hold it in trust for the creditors, legatees, and 
 persons entitled to a distributive share of the surplus. It is 
 essential for their protection that no legatee, whether general or 
 specific, should be permitted, without the assent of the executor, 
 to interfere with the estate. They must take care" to satisfy debts 
 before legacies. (^Tole v. Hardy, 6 Cowen, 539. Wentworth 
 Ex. 408.) The legatee cannot take the thing bequeathed without 
 the permission of the executor. Before the assent of the latter, . 
 the legatee has only an imperfect and inchoate right to the thing 
 given; such, however, as is transmissible to his own personal 
 representatives. ( Went. Exfs, 69, 70.) 
 
 If an executor improperly refuses his assent, he may be com- 
 pelled to give it by a court of equity. ( Went. Ex'rs, 70.) This 
 assent is presumptive evidence of assets to pay both debts 
 and legacies. The surrogate's court has the same power to compel 
 the assent of an executor to a legacy as a court of equity. This 
 results from the general power of the court over the subject mat- 
 ter, and the expressed power, conferred by law, " to direct and con- 
 trol the conduct of executors and administrators." (2 R. S. 
 220, § 1.) 
 
 The assent of the executor may be either express or implied^ 
 
38Q OEDEK OF PAYMENT. 
 
 It may be absolute or conditional. ( Went. Ex'rs, 414.) It 
 could, at common law, be given before probate, but with us it is 
 believed it cannot be given, until letters testamentary have issued 
 to the executor ; for, until then, he can do no act to bind the es- 
 tate. (2 R. S. 71, § 16.) 
 
 The assent of the executor is not necessary where the legacy is 
 charged on, or payable out of real estate. ( Touchstone, 2d vol. 
 455. Tale v. Mardy, 6 Cowen, 339.) 
 
 The remedy given to the legatee, to proceed in the surrogate's 
 court to obtain the legacy, after the expiration of a year from the 
 date of the letters testamentary or of administration, is not founded 
 on any supposed assent of the executor to the legacy, nor can it 
 be defeated by withholding his assent, if the assets are sufficient- 
 ly ample. (2 R. S. 116, § 18.) The surrogate's court, in this 
 respect, exercises all the powers of a court of equity ; and can de- 
 cree payment of the whole, or a proportional part, under: the same 
 circumstances, which would justify the same relief in a court of 
 
 equity. 
 
 The assent of the executor has relation to the death of the tes- 
 tator. This has reference to the transmissibility of the legacy 
 to the personal representatives of the legatee, in case he survives 
 the testator, and dies before payment. 
 
 Section IIL 
 
 Of the order in which legacies are to be paid, and of abatement of 
 
 legacies. 
 
 The duty of the executor, in this respect, is defined by the stat- 
 ute, by which it is enacted that, after the expiration of one year 
 from the granting of any letters testamentary or of administration, 
 the executors or administrators shall discharge the specific lega- 
 acies bequeathed by any will, and pay the general legacies, if 
 there be assets ; and if there be not sufficient assets, then an 
 abatement of the general legacies shall be made in equal propor- 
 tions. (2 R. S. 90, § 45.) 
 
 This enactment is merely declaratory of the then existing law, 
 and not introductory of a new rule, except in fixing the date of 
 the letters, instead of the death of the testator, as the period from 
 
OKDER OF PAYMENT— ABATEMENT. 381 
 
 ■wMch the one year is to be computed. {Preston on Legacies, 
 276.) 
 
 The specific legacies are thus first to be discharged in full, and 
 then the general legacies ; but if the assets are insufficient to pay 
 all, then the general legacies, but not the specific legacies, are 
 subject to abatement. 
 
 This privilege of the specific legacy is some compensation for 
 the risk it encounters of being destroyed by the principle of 
 ademption, ■without any claim to contributipn from the other lega- 
 tees. {Hinton v. Pinke, 1 P- Wms. 640.) 
 
 Although it is the general rule that specific legacies shall not 
 abate in favor of general legacies, yet the rule may be in some in- 
 stances controlled by the intention of the testator. Thus, if a man 
 devises specific and pecuniary legacies, and afterwards says that 
 such pecuniary legacies should come out of all his personal estate, 
 or words tantamount, if there is no other personal estate than the 
 specific legacies, they must be intended to be subject to those that 
 are pecuniary, otherwise the bequest to the pecuniary legatees would 
 be altogether nugatory. ( Toller, 340. 2 Fonb. Eq. pt. 1, ch. 2, 
 § 5.) But if there is nothing in the will indicating a contrary in- 
 tention, and the assets are sufficient to pay the debts and specific 
 legacies, those legacies must be paid in full ; and they cannot be 
 required to contribute towards the payment of the general legacies. 
 {Hinton v. Pinke, supra.) 
 
 But though the general rule be as stated in the statute, it must 
 be understood as applying only to legacies, which are mere gratu- 
 ities ; for if there be a valuable consideration for the testamentary 
 gift, as where a general legacy is given in consideration of a debt 
 owing to the legatee, or of the relinquishment of any right or in- 
 terest, as of her dower by a widow, such legacy will be entitled to 
 a preference of payment over the general legacies, which are mere 
 bounties. (Burridge v. Bradyl, 1 P. Wms. 127. Williamson 
 V. Williamson, 6 Paige, 298. Heath v. Dendy, 1 Russ. Ch. R. 
 543.) The legatee, in such cases, is considered rather as a pur- 
 chaser than a volunteer. 
 
 A similar preference has been extended to legacies of piety, 
 notwithstanding the general language of the statute ; as where 
 the legacy was for the erection of headstones at the graves of the 
 
382 OBDEE OF PAYMENT. 
 
 testator's parents, or other near relatives. Such legacy the chan- 
 cellor said should be paid in full, and not abate ratably with the 
 general legacies. ( Wood v. Vandenburgh, 6 Paige, 278.) 
 
 But. a legatee is not deemed a purchaser where the debt to pay 
 which it was bequeathed was the debt of a relative or a friend, 
 which the testator was under no legal liability to pay. Such be- 
 quest is a mere bounty, and in no better condition as to abatement 
 than other legacies. {Shirt v. Westby, 16 Yes. 394.) 
 
 Priority may, however, be expressly given by the testator to 
 one general legacy over another. {Marsh v. Evans, 1 P. Wms. 
 688. Preston on Legacies, 359.) It is based on the principle of 
 intention of the testator, which must obviously control where it is 
 clearly manifested. The intention sometimes may be gathered by 
 an unequivocal implication. This is the case where a bequest is 
 made of a sum of money payable out of a particular fund, called, a 
 demonstrative legacy. It differs, we have seen, in some respects, 
 from a specific legacy, because it does not fail by the destruction 
 of the fund if there be other assets out of which it can be made. 
 But by pointing to a particular fund, the testator indicates a de- 
 sire that the legatee should be preferred to the other general 
 legacies. {Preston on Legacies, supra. 2 Wms. Ex'rs. 1174.) 
 Nor are these principles incompatible with the statute before 
 cited. (2 R. 8. 90, § 45.) The statute deals in general terms, and 
 was doubtles intended for the regulation .of the conduct of the ex- 
 ecutors or administrators, in cases where the testator had not in- 
 dicated a different intention, either expressly or by implication. 
 This construction satisfies the letter as well as spirit of the act. 
 
 The rule on failure of assets to satisfy all the claims against the 
 estate, is, first to make the general legacies abate, and if necessary 
 take the whole, for the payment of debts. If there is still a defi- 
 ciency, resort is then to be had to the demonstrative and specific 
 legacies. General and specific legatees abate between themselves, 
 according to the value of their legacies, at the time they are pay- 
 able. "Where no time is mentioned in the will, a year from the 
 date of the letters testamentary or of administration, is the time at 
 which the computation must be made. (2 R. S. 90, § 45. Brad- 
 ner v. Faulkner, 2 Kernan, 472.) But if the testator has given 
 any express direction in his will with regard to priority, such 
 
TO WHOM PAYABLE, 383 
 
 direction must be obeyed. No particular form of words is pre- 
 scribed for this purpose. Any language ■which clearly indicates 
 the testator's intention will suffice. But mere general expressions, 
 as " imprimis," or, " in the first place," I give so much to A, are 
 not sufficient to entitle the legatee to a preference over others in 
 the same class. {Brown v. Allen, 1 Vernon, 31.) 
 
 Section IV. 
 Of the person to whom the legacy is to be paid. 
 
 In order to discharge an obligation by payment, it is obvious 
 that the payment must be made to the party having the legal au- 
 thority to receive it. The honest intention of the executor will 
 afford no excuse for a misapplication of the bequest ; and, there- 
 fore, if he pays it to one not strictly entitled, he will be compelled, 
 notwithstanding, to pay it over again to the rightful claimant. 
 
 The principal difficulty which formerly existed on this subject, 
 was in regard tothe payment of legacies belonging to infants. 
 Many of the embarrasments attending this point, have been 
 obviated by the New York revised statutes ; which, while they 
 have greatly relieved the executor of responsibility, have, never- 
 theless, guarded the rights of the infant. If, in some instances, 
 an infant may still suffer by the dishonesty of guardians, or the 
 insolvency of sureties, it is a calamity incident to his condition 
 which civil institutions cannot always prevent. 
 
 At common law, the father, as guardian by nature merely, was 
 not allowed to receive legacies bequeathed to his infant children. 
 ( Oenet v. Talmadge, 1 J. Ch. R. 3.) This prohibition extended 
 to legacies, or distributive shares of any amount, however small or 
 great. But now, by the revised statutes, executors are authorized 
 to pay to the father of the infant legatee, to whom a legacy under 
 the value of fifty dollars is bequeathed, for the use and benefit of 
 the legatee. (2 R. S. 91, § 46.) In this case, therefore, the re- 
 ceipt of the father on the money being paid, is a protection to the 
 executor. The father is not required to give any security either 
 to the executor or to the infant. The father thus becomes a trus- 
 tee for the infant of the sum received, and is liable to account to 
 bini on his coming of age. Whether, in case the father be dead, the 
 
384 PAYMENT TO GUARDIAN. 
 
 mother, -who thus becomes the guardian by nature, would be entitled 
 receive the legacy for the benefit of the infant, as coming within 
 the equity, though not within the words of the statute, has not yet 
 been decided. 
 
 If the legacy be of the value of fifty dollars or more, it may be 
 paid under the direction of the surrogate to the general guardian 
 of the minor, who is required to give security to the minor to be ap- 
 proved by the surrogate for the faithful application and accounting 
 for such legacy. (2 R. S. 91, § 47.) The father may be appoint- 
 ed such guardian. ( Genet v. Talmadge, supra.) But it will 
 be seen hereafter, that such appointment must be made by the 
 supreme court, the surrogate having no power to appoint a general 
 guardian for an infant during the life of the father. (iSfee post, 
 ch. 6, part 3.) 
 
 The security given by the guardian on his appointment, is taken 
 with reference to the infant's property at that time. Whether it 
 is an adequate protection for the infant, when the legacy is to be 
 paid, depends on a variety of circumstances ; and, therefore, it is 
 expedient that additional security should be required. The mat- 
 ter is usually brought before the surrogate by petition, and he, 
 after inquiring into the matter, in a summary way, makes an order 
 for the payment of the money by the executor to the guardian of 
 the infant legatee, on his entering into the requisite security. 
 The order should be entered in the book of minutes, and the bond, 
 after being duly acknowledged or proved, should be filed in the 
 o£5ce of the surrogate. A payment in pursuance of this order is 
 a complete protection to the executor, whether the sureties prove 
 to be insolvent or not. 
 
 It is further provided, in a subsequent section, that if the infant 
 has no general guardian, or if the surrogate does not direct the pay- 
 ment to such guardian, the legacy shall be invested in permanent 
 securities, under the direction of the surrogate, in the name and 
 for the benefit of the minor, upon annual interest ; and the interest 
 may be applied, under the direction of the surrogate, to the sup- 
 port and education of the minor. (2 R. S. 91, § 48. McLoskey 
 V. Reid, 4 Bradf. 334.) It is the duty of the executors or admin- 
 istrators to perform this requirement. There may be satisfactory 
 reasons against directing the payment of the money to the general 
 
PAYMENT TO GUAEDIAK 385 
 
 guardian, or the infant may have none. The executors, after as- 
 certaining the state of the assets, should present the facts to the 
 surrogate, in the shape of a petition, indicating therein the pro- 
 posed mode of investment. The surrogate, after inquiring into 
 the facts in a summary way, will, if he deems it for the interest 
 of the infant, direct the investment, or make such other order in 
 the premises as shall be just. These securities are to be kept by 
 the general guardian, if there be one, and the interest is to be 
 received by him, and applied, under the direction of the surrogate, 
 to the support and education of the minor. 
 
 In case the minor has no guardian, the surrogate is required to 
 receive the securities from the executors or administrators, and 
 keep them in his office ; to collect, receive and apply the interest 
 for the support and education of the minor ; and, when necessary, 
 to collect the principal, and reinvest the same, and also reinvest 
 any interest that may not be necessarily expended as aforesaid. 
 (2 R. S. 91, § 49.) On arriving at age, the minor is entitled to 
 receive from the surrogate the securities so'taken, and the interest 
 or other moneys that may have been received ; and the surrogate 
 and his sureties are liable to account for the same. {Id. § 50.) 
 In effect, the surrogate in such a case acts, so far as the manage- 
 ment of the legacy is concerned, as a guardian of the minor. In 
 case of the death of the minor before coming of age, the securities 
 and moneys go to his executors or administrators, to be applied 
 and distributed according to law ; and the surrogate and his sure- 
 ties are liable, in like manner, to account to such executor or ad- 
 ministrator. {Id. § 51.) 
 
 With regard to the nature of the investment of the infant's 
 legacy, the surrogate doubtless has a reasonable discretion. He 
 may direct it to be loaned out on bond and mortgage for the ben- 
 efit of the infant. In such case, the security should be taken to 
 the infant. The mortgage should be on unincumbered real estate, 
 of at least double the cash value of the sum loaned, exclusive of 
 buildings. 
 
 An investment, attended with less trouble and responsibility to 
 the surrogate, and equally safe for the infant, is authorized by the 
 act to incorporate the New York Life Insurance and Trust Com. 
 pany. {L. of 1830, ch. 75. L. of 1834, ch. 250. Willard^s Lq. 
 
 49 
 
386 PAYMENT TO GUAEDIAN— TBUST COMPANY. 
 
 Juris. 558.) By this statute it is enacted that in all cases where 
 an application shall be made to the court of chancery, now the 
 supreme court, or to a surrogate having jurisdiction, for the ap- 
 pointment of a guardian of any infant, the annual income of whose 
 estate shall exceed the sum of one hundred dollars, the court shall 
 have power to appoint the said company as guardian of the estate 
 of such infant. 
 
 The fourth section of the act provides, that on any sum of money 
 not less than one hundred dollars, which shall be collected or re- 
 ceived by the said company, in its capacity of guardian and re- 
 ceiver, an interest shall be allowed by the said company of not 
 less than the rate of four per cent annually ; which interest shall 
 continue until the money so received shall be duly expended or 
 distributed. A subsequent section provides that where the annual 
 income of the infant's estate, of which they are guardian, shall 
 exceed the sum allowed, or which may be sufficient for the educa- 
 tion and support of such infant, such surplus income shall be 
 accumulated by the said company, for the benefit of such infant, 
 by adding interest on the whole as a new principal ; and the in- 
 terest so to be allowed and added on such annual accumulation 
 shall in no case be less than four per cent. The company, when 
 thus appointed guardian, are not required to give a bond or other 
 collateral security. But all investments of moneys received by the 
 said company, as guardian, are declared to be at the risk of the said 
 corporation ; and for all losses of such moneys the capital stock, 
 property and effects of the said, corporation are made absolutely 
 liable ; and in case of the dissolution of the said company by the 
 legislature, or by the supreme court, or otherwise, the debts due 
 from the company as guardian are declared to have a preference. 
 
 Should the surrogate adopt the trust company as the depositary 
 of money paid into court for infants, he should cause an appoint- 
 ment of the company by its corporate na.me, to be made out under 
 the seal of the court, and recorded in the proper book. The or- 
 der for the appointment should be, as in other cases, entered in 
 the book of minutes. He should open an account with the com- 
 pany, and between himself and the infant, which would be appropri- 
 ately entered in the book for guardians' accounts, which he is direct- 
 ed by law to keep. (2 R. S. 222, § 7, subd. 5.) 
 
LEGACIES TO MAEEIED WOMEN. 387 
 
 The trust company, however, cannot be appointed guardian 
 unless the annual income of the infant's estate exceeds f 100. If 
 this income is derived from the rent of real estate, or other secure 
 investments on real property, it would not be necessary, or advis- 
 able, to break up the investments, and make the company guardianii 
 
 This company is also authorized to receive moneys in trust, and 
 to accept and execute all such trusts of every description, as may 
 be transferred to them by order of the supreme court or by any 
 surrogate. It forms, therefore, a safe and convenient depository 
 of money, paid into court for infants or others, either on legacies, 
 or on other accounts. 
 
 At common law, a legacy bequeathed to a married woman must 
 be paid to her husband. {Palmer v. Trevor, 1 Vern. 251. 
 Howard v. Moffatt, 2 John. Ch. R. 206.) But if he had to in- 
 voke the aid of a court of equity, to enable him to get possession 
 of his wife's property, that court would require him to do what was 
 equitable, by making a reasonable provision out of it, for the 
 maintenance of her and her children. {Id.) It was always in 
 the power of the testator so to frame the bequest as to exclude 
 the husband, and to allow the payment to the wife alone, or her 
 order. Any language in the legacy indicating the intention of 
 the testator that the legacy should be " for her own use," or " for 
 her own disposal," and the like, would be sufficient for this pur- 
 pose. {Shirley v. Shirley, 9 Paige, 363. Willard's Equity 
 Juris. 559.) 
 
 The power of courts of equity in this class of cases was always 
 exercised for' the benefit of the wife ; and hence if she came into 
 court and waived a settlement and consented to the payment to 
 her husband, the court would make the order accordingly. It 
 was usuaj, also, when the sum was not large, and the parties lived 
 together, and the husband supported the family as far as he was 
 able, for the court of chancery to dispense with a settlement, and 
 allow the husband to receive the legacy. 
 
 This subject is now provided for by the acts of 1848 and 1849, 
 for the more efifectual protection of the property of married women. 
 {Laws of 1848, p. 307. Laws of 1849, p. 528.) The third 
 section of the act as amended in 1849, allows any married female 
 
388 LEGACIES PAYABLE AT A FUTIJEE TIME. 
 
 to take by inheritance or by gift, grant, devise, or bequest, from any 
 person other than her husband, and hold to her sole and separate 
 use, and convey and devise real and personal property, and any 
 interest or estate therein, and the rents, issues and profits thereof, 
 in the same manner and with the like effect as if she were unmar- 
 ried; and the same shall not be subject to the disposal of her hus- 
 band nor be liable for his debts. 
 
 A bequest to a married female which takes effect after the 
 statute of 1849, is undoubtedly payable to the' wife, and her dis- 
 charge will be a protection to the executor. A payment to the 
 husband without authority from the wife, would not operate as a 
 discharge. Nor can the creditors of the husband ever reach it 
 without the assent of the wife. {See Willard's Eq. Juris. 640, 
 641, remarks on these statutes.) 
 
 It is deemed not inappropriate to the present head, to consider 
 the practice in the case of legacies payable at a future period. 
 Although legatees are in no case entitled to receive their legacies 
 before the time of payment arrives ; yet, it seems, they are entitled 
 to go into a court of equity and pray that a sufficient sum be set 
 apart to answer the legacy when it becomes due. The court will, 
 in such a case, compel the executor to bring into court money in 
 his hands, or give security for its payment when the legacy is 
 payable at a future day. {Lupton v. Lupton, 2 J. Ck. R. 614.) 
 
 Where there is a bequest for life or other limited period, with a 
 limitation over, of specific articles not necessarily consumed in the 
 using, the modern practice is only to require an inventory and 
 receipt from the first taker, specifying that they belong to him for 
 the particular period only, and then to the remainderman ; and 
 security is not required, unless there is danger that the articles 
 may be wasted, or otherwise lost to the remainderman. {Coven- 
 hoven v. Shuler, 2 Paige, 122. De Peyster v. Clendining, 
 8 Paige, 295. Spear v. Tinkham, 2 Barb. Ch. R. 211.) 
 
 Where an estate for life, or any interest short of absolute owner- 
 ship, was given in the general residue of the personal estate, terms 
 for years, and other perishable funds, or property which might be 
 consumed in the use, was to be converted and invested in such a 
 way as to produce a permanent capital, and the legatee be entitled 
 only to the interest or income of such capital, it Was held by the 
 
LEGACIES PAYABLE AT A rUTURE TIME. 389 
 
 chancellor that the legatee was not entitled to all the tolls of a toll- 
 bridge, being a franchise for years owned by the testator, but only 
 to such portion of them as would equal the interest of a capital 
 equivalent to the cash value of the franchise at the time of the 
 testator's death. {Cairns v. Chauhert, 9 Paige, 160.) 
 
 It has sometimes been made a question, whether on a bequest of 
 the use of the residue of personal estate for life, the executor 
 should retain the fund and pay the income to the legatee, or should 
 transfer the principal to the legatee on receiving sufficient security 
 for its return. In Clark v. Clark, 8 Paige, 160, which came be- 
 fore the late chancellor on appeal from a surrogate's court, the 
 chancellor held that either course might be adopted, a't the discre- 
 tion of the executor, though a preference was given to the former 
 course. If in such a case an executor pays over the fund to the 
 legatee, without security, and it is squandered by the legatee, the 
 executor will be liable to replace it, though he acted in good faith, 
 when he paid it to the legatee for life. {Id.) 
 
 The foregoing cases are enough to illustrate the general princi- 
 ples applicable to this subject. The practical duty of the executor 
 or administrator in cases of this kind, where a specific article, not 
 necessarily consumed in the using, is bequeathed to one for life, 
 with remainder over, is, after the period for paying the legacy has 
 arrived, to deliver the article bequeathed to the tenant for life, and 
 to take from him a written inventory and agreement, setting forth 
 his own interest in the property, and acknowledging that on his 
 death it belongs to the person in remainder. The inventory and 
 agreement should be delivered to the remainderman, who is alone 
 interested in it. The executor or administrator cannot be held 
 responsible for the abuse of the article by the particular tenant. 
 His duty is fully performed, on delivering it to the person first 
 entitled to use it, and taking from him the inventory and deliver- 
 ing it to the remainderman. 
 
 Where there is a general bequest to one for life, and remainder 
 over, the executor should convert the whole into money and invest 
 it in permanent securities. The interest only is payable to the 
 tenant for life, and on his death the residue belongs to the re- 
 mainderman. 
 
890 INTEREST ON" LEGACIES. 
 
 Such is the difference between a specific and general legacy, 
 ■where the first legatee is not entitled to the whole interest, and the 
 rights of the remainderman are to be considered and protected by 
 the court. 
 
 Section V. 
 
 Of interest on legacies ; of the increase of specific legacies ; of 
 legacies charged on land ; and of refunding legacies. 
 
 It is competent for the testator to declare whether the legacies 
 bequeathed by him shall bear interest ; and to prescribe the rate 
 ■per cent, and the time from which it shall be computed. 
 
 In case he makes no mention of the subject of interest, the 
 question whether the legacy bears interest or not, and from what 
 time, is established by the rules of law, founded on the presumed 
 intention of the testator, and the equity of the case. 
 
 1. Where no time is fixed by the testator in the will, it has 
 been seen that the legacy becomes due and payable at the end of 
 a year from the date of the letters testamentary. At the end of 
 this time, and not before, if the will is silent on the subject, in- 
 terest is to be computed on the legacy. {Bradner v. Faulkner, 2 
 Kernan, 472. Glen v. Fisher, 6 J. Ch. R. 33. Birdsally. 
 Hewlett, 1 Paige, 33.) It is the general rule that all legacies 
 draw interest after they are payable ; whether the time limited 
 for their payment is fixed by the testator in his will or by the 
 statute. Interest is given for delay of payment ; and the execu- 
 tor cannot be considered in default unless he withholds payment 
 after the legacy is due. {Hepburn v. Hepburn, 2 Bradf. 74.) _ 
 
 There are some exceptions to this rule. One is, where a legacy 
 is given by a parent to a child, and no other provision is made for 
 its maintenance, interest will be computed from the death of the 
 testator. {Lupton v. Lupton, 2 J. Ch. R. 614. Van Bramer v. 
 Hoffman, 2 J. Cases, 200.) But if the support and maintenance 
 of the child be otherwise provided for by the bounty of the testa- 
 tor, his legacy, like other legacies, is not payable, nor does it draw 
 interest until the lapse of a year from the date of the letters testa- 
 mentary. ( Williatdson v. Williamson, 6 Paige, 298. Burtis . 
 V. Dodge, 1 Barb. Ch. R. 11.) Another exception is, where a 
 
INCREASE OF SPEOIFIO LEGACIES. 391 
 
 legacy is given to the widow in lieu of dower. In such a case, in- 
 terest is allowed from the testator's decease. {Seymour v. Butler, 
 3 Bradf. 193.) So also an annuity bequeathed generally, com- 
 mences from the testator's death. {Craig n. Craig, 3 Barb. Ch. 
 R. 76.) 
 
 2. Where the testator directs in his will the legacy to be paid 
 with interest, and does not specify the time from which it is to 
 be computed, the interest does not commence until one year from 
 the date of the letters testamentary or of administration. In 
 short, it commences from the time when the legacy would have 
 been payable, if the time of payment had not been fixed by 
 the will. (2 Sim. ^ Stu. 490. Lawrence v. Embree, 3 Bradf. 
 364.) 
 
 Where there is a specific bequest of bank stock, the legatee is 
 entitled to the dividends which accrued after the death of the tes- 
 tator. {Barrington v. Tristam, 6 Ves. 349.) It is otherwise 
 where bank stock is bequeathed by a general legacy ; and the 
 rule is not altered, in this respect, in favor of a bequest to a widow 
 in lieu of dower. ( Tifft v. Porter, 4 Seld. 516.) 
 
 A specific legatee of mares, cows, or ewes, is entitled to the 
 brood fallen between the death of the testator and the assent of 
 the executor to the legacy. ( Went. Ex. 445.) The reason is, 
 the assent, when given, has relation back to the time of the testa- 
 tor's death, as has been before shown. 
 
 There are cases which hold that legacies charged on land, when 
 no time of payment is mentioned, draw interest from the death of 
 the testator, {Van Bramer v. Hoffman, 2 John. Cases, 200,) on 
 the principle that land yields rents and profits. But the authority 
 of this case may well be questioned, as that was not a point neces- 
 sary to be decided, and the contrary doctrine is held in England. 
 ( Toller, 324. Pearson v. Pearson, 1 Sch. 6f Lef. 10.) 
 
 If land is devised subject to the payment of legacies, the devi- 
 see, after accepting the devise, is personally liable for the legacy ; 
 and he must pay interest on it from the time it was payable, 
 whether it was demanded or not. ( Glen v. Fisher, 6 John. Ch. 
 
392 CHARGE OF LEGACY ON LAND. 
 
 R. 33. Birdsall v. Hewlett, 1 Paige, 33. Tole v. Hardy, 6 
 Cowen, 333.) 
 
 Where real estate is devised subject to the payment of certain 
 legacies, and the devisee refuses to accept the devise and pay the 
 legacies, the land descends to the heirs, and the legatees are en- 
 titled to pursue it in their hands in order to obtain their legacies. 
 And a court of equity will give them relief for this purpose. The 
 intent of the testator cannot otherwise be carried -into effect. 
 {Birdsall v. Hewlett, supra. Harris v. Fly, 7 Paige, 421.) 
 The remedy of the legatee in such a case is in equity, and cannot 
 be asserted in the surrogate's court. 
 
 With regard to the words necessary to create a legacy a charge 
 on real estate, a few words will be added to what has been said 
 with respect to a charge of debts on real estate. {See chapter 1 
 of part HI, section 2, pages 328, 9.) A legacy is never charged 
 on the real estate of the testator, unless the intention of the testa- 
 tor to that effect is expressly declared in the will, or is clearly to 
 be inferred by the language and disposition of the instrument. 
 {Lupton V. Lupton, 2 John. Ch. R. 614.) An express charge is, 
 where the testator in terms charges the legacy on his real estate, 
 or directs it to be made out of his real estate, or the like. An 
 implied charge is where an estate, consisting of real and personal 
 property, is given by will to a person who is directed to pay the 
 legacy out of the estate. The legacy is, in such a case, an equitable 
 charge on the real estate ; but still the personal estate is the pri- 
 mary fund for its payment ; and the legatee cannot resort to the 
 real estate in the hands of the purchasers from the devisee, without 
 showing that the personal property has been properly exhausted, 
 or that those who are accountable for it are irresponsible. {Dodge 
 V. Manning, 11 Paige, 334. Harris v. My, 1 Paige, 421.) 
 
 The usual residuary clause in a will, inserted to prevent an in- 
 testacy, as, " I give all the rest and residue of my estate, real and 
 personal, not before devised," is not sufficient for this purpose. 
 {Lupton V. Lupton, supra.) Where a testator directs his debts 
 and legacies to be Jirst paid, and then devises real estate, or where 
 he devises the remainder of his estate, real and personal, after 
 
REFUNDING LEGACIES. 393 
 
 payment of debts and legacies ; or devises real estate after pay- 
 ment of debts and legacies, it has been held that the real estate 
 was charged. So, too, where the devisee of real estate is appointed 
 executor, and is expressly directed to pay debts and legacies, the 
 charge will be created. {^Reynolds v. Reynolds, 2 Smith, 16 N. 
 Y. R. 259, and the cases there collected.) So, also, in Lewis v. 
 Darling, 16 How. U. S. Rep. 1-9, the testator left to his daugh- 
 ter all of his property of every kind, which might remain after the 
 antecedent bequests and devises in his will had been paid, (page 
 9 of the opinion of Wayne, J.,) the legacies and debts were well 
 charged. * {And see Rafferty v. Clark, 1 Bradf. 473.) 
 
 But though the real estate be well charged, yet the personal 
 estate is the proper fund for the payment of debts and legacies, 
 and is to be first applied before charging the real estate. {M'Kay 
 V. Cfreen, 3 John. Ch. R. 56. Lupton v. Lupton, supra. Kel- 
 sey V. Western, 2 Comst. 600.) Indeed, where the personal 
 estate is not in terms exonerated, and is not absolutely bequeathed 
 by the will, it will be deemed the primary fund for the payment 
 of the legacies, although the latter are expressly charged on the 
 devisees. The charge in such a case is in aid. and not in exoner- 
 ation of the personal estate. {Hoes v. Van Hoesen, 1 Comst. 120, 
 aff.lBarb. Ch. R. S19.) 
 
 There are certain circumstances under which legatees are bound 
 to refund their legacies. They have been adverted to in a pre- 
 vious chapter. If a bond has been taken from the legatee in pur- 
 suance of 2 R. iS. 90, § 44, the most convenient remedy, in case 
 the contingency therein provided for occurs, is at law, by action 
 on the bond. There is also a remedy by the creditor and other 
 legatees in equity in such cases. {Lupton v. Lupton, 2 John. 
 Ch. R. 614.) If the executor has pursued the course pointed out 
 by the statute, for the presentation of claims against the estate, 
 and which has been described in a previous chapter, such creditors 
 
 * In Tracy v. Tracy, 15 Barb. S. C. R. 503, at special term, a different rule 
 was adopted. As the will is not set out in the report, the accuracy of the opinion 
 cannot be tested, though the case may have been, and probably was rightly decided. 
 The reasons on which it is based by the learned judge cannot he supported by the 
 cases, and were disapproved by the court of appeals in Reynolds v. Reynolds, 
 supra, page 261. 
 
 50 
 
394 PAYMENT OF RESIDUE. 
 
 of the testator as fail to exhibit their claims, according to the 
 notice, will be driven to their action against the legatees or distribu- 
 tees to whom the estate has been paid over by the executor. As 
 this remedy cannot be asserted in the surrogate's court, the further 
 notice of it does not belong to this treatise. 
 
 SECTioisr VI. 
 
 Of the fayment of the residue, and of the rights of the executor 
 thereto, where there is no residuary legatee. 
 
 The residue, generally speaking, embraces not only what the 
 testator did not attempt to dispose of, but every part of his prop- 
 erty which, by lapse or otherwise, is not effectually bequeathed to 
 others. {King v. Strong, 9 Paige, 94. James v. James, 4 
 Paige, 115. Van Kleek v. The Reformed Dutch Church, 6 
 Paige, 600, aff. 20 Wend. 457. Bowers v. ^mith, 10 Paige, 193. 
 Banks v. Phelan, 4 Barh. 80.) If the residue be given to several 
 in common, and the legacy of one lapses, or is revoked as to him, 
 his share goes to the next of kin. {Floyd v. Barker, 1 Paige, 
 480. Hart v. Marks, 4 Bradf. 161.) It would be otherwise if 
 bequeathed to several in joint tenancy. In such a case, the sur- 
 vivors would take the whole. ( Webster v. Webster, 2 P. Wms. 
 347.) 
 
 It was a principle of the common law, from the earliest times, 
 that the whole personal estate of the testator vested, at his death, 
 in his executor. It followed, from this principle, that whatever 
 was not effectually bequeathed to others, belonged, after the pay- 
 ment of debts, to the executor beneficially. {Atfy Gen. v. Hooker 
 2 P. Wms. 338.) The same rule originally prevailed, as well in 
 equity as at law. But the court of chancery, at an early day, laid 
 hold of the peculiar wordings of the will to find indications of a 
 contrary intention of the testator ; as, where a legacy was given to 
 him for his care and trouble, or where he was appointed a trustee, 
 and the like. That court struggled to convert the executor into a 
 trustee of the unbequeathed surplus, for the benefit of the next of 
 kin, and thus prevent his holding it for his own benefit. 
 
 The principles of equity finally triumphed, and became the law. 
 
DISTEIBWTION. 395 
 
 In this state, by the revised statutes, it is enacted that the sur- 
 plus, after paying debts and legacies, shall be distributed to the 
 widow and next.of kin, in the manner therein stated, and as will 
 be hereafter considered. (2 R. S. 96, § 75.) Hence, the exec- 
 utor, in every instance, becomes a trustee for the widow and next 
 of kin, of the unbequeathed surplus. He takes nothing benefi- 
 cially, unless named as a legatee. This makes the executor a mere 
 officer, nominated by the testator, and appointed by the court to 
 execute the trusts in the will, and to discharge, out of the effects 
 of the deceased, the claims which individuals may have against 
 the testator in his lifetime. The personal property, money and 
 choses in action, and chattels of all kinds, are still devolved upon 
 him ; but he takes them in a representative capacity. He holds 
 the estate in trust for the various purposes of the law. His first 
 duty, therefore, is to pay the funeral charges and debts of the de- 
 ceased ; then the specific and general legacies, if there be assets '; 
 and then to distribute the remainder, if it be not bequeathed, to 
 the persons entitled to it under the statute of distributions. 
 
 Section VII. 
 
 Of distribution, and of the duties of an executor or administra- 
 tor with respect thereto. 
 
 Whatever may have been the ancient right of the executor or 
 administrator to the personal estate of deceased persons, it has 
 not been doubted, that since the statute of distributions of 22 and 
 23 Charles 2, it is their duty, after paying the funeral charges 
 and debts, to distribute the remainder to the legatees according to 
 the will, and the balance undisposed of to the persons contempla- 
 ted by the statute, as in cases of intestacy. The statute of Charles 
 2 forms the basis of the legislation of this state, and probably 
 of most of the others on this subject. It is said to have been 
 borrowed from the 118th novel of Justinian, and except in some 
 few instances mentioned therein, to be governed and construed by 
 the rules of the civil law.* (2 Kent's Com. 422.) 
 
 * The cases arising under the English statute of distributions are reviewed by 
 Mr. Justice Williams in his treatise on the law of executors, &c., 2 vol. 1271 
 et seq., and an elaborate note in the last American edition, has laid before us most 
 
396 DISTBIBDTION. 
 
 The existing law of this state makes the foUo-ffing provisions on 
 the subject now under consideration. To render our subsequent 
 remarks intelligible, it will be necessary to insert the enactment 
 verbatim. (2 R. S. 96, § 75.) 
 
 " Where the deceased shall have died intestate, the surplus of 
 his personal estate remaining after payment of debts ; and where 
 the deceased left a will, the surplus remaining after the payment 
 of debts and legacies, if not bequeathed, shall be distributed to the 
 widow, children or next of kin of the deceased, in manner fol- 
 lowing : 
 
 " 1. One-third part thereof to the widow, and all the residue by 
 equal portions among the children, and such persons as legally 
 represent such children, if any of them shall have died before the 
 deceased : 
 
 " 2. K there be no children, nor any legal representatives of 
 them, then one moiety of the whole surplus shall be alloted to the 
 widow, and the other moiety shall be distributed to the next of 
 kin of the deceased, entitled under the provisions of this section : 
 
 " 3. If the deceased leave a widow and no descendant, parent, 
 brother or sister, nephew or niece, the widow shall be entitled to 
 the whole surplus ; but if there be a brother or sister, nephew or 
 niece, and no descendant or parent, the widow shall be entitled to 
 a moiety of the surplus as above provided, and to the whole of the 
 residue where it does not exceed two thousand dollars ; if the resi- 
 due exceed that sum, she shall receive, in addition to her moiety, 
 two thousand dollars ; and the remainder shall be distributed to 
 the brothers and sisters and their representatives : 
 
 " 4. If there be no widow, then the whole surplus shall be dis- 
 tributed equally to and among the children, and such as legally re- 
 present them : 
 
 " 6. If there be no widow and no children, and no representatives 
 of a child, then the whole surplus shall be distributed to the next 
 of kin, in equal degree to the deceased and the legal represen- 
 tatives : 
 
 " 6. If the deceased shall leave no children and no representa- 
 
 of the American cases on the same subject. My examination of the subject is 
 mainly confined to so much of the law of this state, as is usually admini,stered in 
 surrogates' courts. 
 
DISTKIBUTION. 397 
 
 tives of them, and no father, and shall leave a widow and a mother, 
 the moiety not distributed to the widow shall be distributed in 
 equal shares to his mother and brothers and sisters, or the repre- 
 sentatives of such brothers and sisters ; and if there be no widow, 
 the whole surplus shall be distributed in like manner to the mother 
 and to the brothers and sisters, or the representatives of such 
 brothers and sisters : 
 
 " 7. If the deceased leave a father and no child or descendant, 
 the father shall take a moiety, if there be a widow, and the whole, 
 if there be no widow : 
 
 " 8. If the deceased leave a mother and no child, descendant, 
 father, brother, or sister, or representative of a brother or sister, the 
 mother, if there be a widow, shall take a moiety ; and the whole, if 
 there be no widow. And if the deceased shall have been an illegi- 
 timate and have left a mother and no child or descendant or widow, 
 such mother shall take the whole, and shall be entitled to letters 
 of administration in exclusion of all other persons, in pursuance 
 of the provisions of this chapter. And if the mother of such 
 deceased shall be dead, the relatives of the deceased on the part of 
 the mother shall take in the same manner as if the deceased had 
 been legitimate, and be entitled to letters of administration in the 
 same order : {As amended in 1845, ch. 236.) 
 
 " 9. Where the descendants or next of kin of the deceased, en- 
 titled to share in his estate, shall be all in equal degree to the de- 
 ceased, their shares shall be equal : 
 
 " 10. When such descendants or next of kin shall be of unequal 
 degrees of kindred, the surplus shall be apportioned among those 
 entitled thereto, according to their respective stocks; so that 
 those who take in their own right shall receive equal shares, and 
 those who take by representation shall receive the share to which 
 the parent whom they represent, if living, would have been en- 
 titled : 
 
 "11. No representation shall be admitted among collaterals, 
 after brothers' and sisters' children : 
 
 " 12. Relatives of the half blood shall take equally with those 
 of the whole blood in the same degree ; and the representatives of 
 such relatives shall take in the same manner as the representatives 
 of the whole blood : 
 
398 DISTRIBUTION— ADVANCEMENT. 
 
 " 13. Descendants and next of kin of the deceased, begotten be- 
 fore his death, but born thereafter, shall take in the same manner 
 as if they had been born in the lifetime of the deceased, and had 
 survived him." 
 
 The doctrine of advancement is intimately connected with that 
 of distribution, and is thus provided for in the four sections fol- 
 lowing the above 76th : 
 
 " If any child of such deceased person shall have been advanced 
 by the deceased, by settlement or portion of real or personal estate, 
 the value thereof shall be reckoned with that part of the surplus 
 of the personal estate which shall remain to be distributed among 
 the children ; and if such advancement be equal or superior to the 
 amount, which, according to the preceding rules, would be dis- 
 tributed to such child, as his share of such surplus and advance- 
 ment, then such child and his descendants shall be excluded from 
 any share in the distribution of such surplus. 
 
 " But if such advancement be not equal to such amount, such 
 child or his descendants, shall be entitled to receive so much only 
 as shall be sufiScient to make all the shares of all the children in 
 such surplus and advancement to be equal as near as can be esti- 
 mated. 
 
 " The maintaining or educating, or the giving of money to a child, 
 without a view to a portion or settlement in life, shall not be deemed 
 an advancement within the meaning of the two last sections ; nor 
 shall those sections apply in any case where there shall be any 
 real estate of the intestate to descend to his heirs. {iSee 1 R. S. 
 754, providing for such cases.) 
 
 " The preceding provisions respecting the distribution of estates 
 shall not apply to the personal estates of married women ; but 
 their husbands may demand, recover and enjoy the same as they 
 are entitled by the rules of the common law." 
 
 The foregoing 75th section was taken from the former statute of 
 distributions, which was copied from the English statutes on the 
 same subject. (1 R. L. of 1813, pp. 313, 314.) In the present 
 statute the word " deceased" is substituted for " intestate," but it 
 is not supposed that any different rule of construction was intend- 
 ed to be introduced by this change of phraseology. The meaning 
 is the same in both cases. 
 
 Numerous questions may arise under the statute of distributions 
 
MAERIED FEMALE— ADVANCEMENT. 399 
 
 with respect to the right of the husband to the personal estate of 
 his wife. The statute expressly reserves the common law right of 
 the husband to administer on her estate to his own benefit. That 
 right has been regulated by another provision of the law, else- 
 where noticed, whereby the husband becomes liable for her debts to 
 the extent of the assets received by him, (2 R. iS. 75, §§ 29, 30,) 
 and beyond that is entitled to the property absolutely. {Shum- 
 way v. Cooper, 16 Barb. 556.) 
 
 The act for the more effectual protection of the property of mar- 
 ried women, passed in 1848 and amended in 1849, [L. of 1848, 
 p. 307; L. of 1849, p. 528.) merely allows any married female to 
 take by inheritance or by gift, grant, devise or bequest, from any 
 person other than her husband, and hold to her sole and separate 
 use, and convey and devise real and personal property, and any in- 
 terest or estate therein, and the rents, issues and profits thereof, in 
 the same manner and with the like effect as if she were unmarried ; 
 and the same are not subject to the disposal of the husband nor 
 liable for his debts. But the statute is silent as to the disposition 
 of her property, in case she dies intestate. It is left in such a 
 case to be governed by the rules which previously prevailed with 
 respect to the personal estate of a deceased married female. If 
 her husband survives her, he takes as administrator to his own use, 
 subject to her debts, what she has not effectually bequeathed. 
 (^McCosker v. Golden, 1 Bradf. 64. Shumway v. Cooper, supra.) 
 
 By renouncing administration, a widow, or any other person in- 
 terested, does not relinquish any right to a distributive share of 
 the estate of the deceased. But the title of a widow, under the 
 statute, may be barred by a marriage settlement, before marriage, 
 excluding her from her distributive share of her husband's per- 
 sonal estate. {Clancy^s Rights of Women, 510 et seq.) 
 
 Questions arising out of the law of marriage and divorce may 
 sometimes incidentally arise before the surrogate, on decreeing 
 distribution, but the reader is referred to treatises on this subject. 
 (/See Wait v. Wait, 4 Comst. 95. Burr v. Burr, 10 Paige, 25, 
 affirw,ed 7 Hill, 207.) 
 
 With regard to the rights of children and their representatives, 
 and the doctrine of advancement, a few words will be added. 
 
400 EIGHTS OF OHILDKEN. 
 
 Persons are said to take per capita when they take in their 
 own right. When all the next of kin are of the same degree of 
 kindred to the deceased, they take equal shares per capita. Thus, 
 if the father have three children, John, Henry and Sarah, and 
 they all die before their father, John leaving one child, Henry two, 
 and Sarah four, and afterwards the father dies intestate ; in that 
 case all his grandchildren shall have an equal share ; for as his 
 children are all dead, their children take as next of kin per capita, 
 and not by representation. In the case supposed, the seven 
 grandchildren will each take a one-seventh part. 
 
 Persons are said to take per stirpes when they take not in their 
 own right but by representation. Thus, if the father have three 
 children, John, Henry and Sarah, and John dies leaving two chil- 
 dren, Henry dies leaving three children, and Sarah alone survives 
 her father, who dies intestate ; in this case, Sarah takes in her 
 own right per capita, one-third ; the three children of Henry per 
 stirpes, as representing the stock of their father, another third ; 
 and the two children of John, in like manner, the remaining third. 
 
 This right of representation extends, by the statute, no further 
 than to brothers' and sisters' children. Thus, we will suppose 
 John, Henry and Sarah to be the three children of the intestate. 
 John dies in the lifetime of his father, leaving two children ; Henry 
 dies in his father's lifetime, leaving two children and four grand- 
 children, the offspring of a deceased son. The ancestor at length 
 dies intestate, his daughter Sarah having survived him. In this 
 case, therefore, Sarah in her own right takes one-third of the per- 
 sonal estate of her father ; the two children of John, in right of 
 their father, take another third ; and the two children of Henry, 
 in right of their father, the remaining third. The grandchildren 
 of Henry, being the offspring of his deceased son, take nothing. 
 Their father, had he lived, would have been entitled to one-third 
 of the share belonging to his father Henry by representation, 
 but they, being one degree further removed, cannot make out 
 their kindred except through a double representation. They are 
 of kin to the intestate, indeed, but not next of kin, nor within the 
 class of representation contemplated by the statute. Their rela- 
 tionship to Sarah, the nearest of kin, is that of brother's grand- 
 children. The father of one is the great grandfather of the otheN 
 
ADVANCEMENT— DISTErBUTIOlT. 401 
 
 Sarah is their great aunt. Nor would the result have been altered, 
 as to Henry's grandchildren, had Sarah also died in the lifetime 
 of her father, either with or without children. 
 
 An advancement is not fraudulent as to creditors if the parent, 
 in good faith, retain in his own hands property sufficient to pay 
 all his debts. ( Vati Wyck v. Seward, 6 Paige, 62 ; affirmed, 
 18 Wend. 375.) 
 
 In England it is said that the provision of the statute of distri- 
 butions as to advancement applies only to the distribution of the 
 estates of intestate fathers, and, therefore, an advancement by a 
 mother, being a widow, shall not be brought into hotchpot. ( Wm's 
 Exrs. 1286, citing Holt v. Frederick, 2 P. Wms. 357.) The 
 reason of this, as assigned by Lord Oh. King, is, that the statute 
 of distributions was grounded on the custom of London, which 
 never affected a widow's personal estate, and that the act seemed 
 only to include those within the clause of hotchpot, who are capa- 
 ble of having a wife as well as children. The reason for this dis- 
 tinction is not applicable to our statute. If it is construed with 
 the corresponding statute relative to advancement of real property, 
 as it should be, no reason is perceived why, under our statute, an 
 advancement made by the widowed mother to one of her children, 
 should not be brought into hotchpot as well as when made by the 
 father. (1 R. S. 754.) 
 
 The principle on which the law relative to advancements rests 
 does not require that any thing should be taken from the child who 
 has thus been the object of his parent's bounty. He is entitled to 
 hold what he has got ; but when he comes, on the death of his 
 parent, to ask a portion of the remainder of the estate, it is re- 
 quired, by the clearest principles of equity, that what he has 
 already received as an intended advancement, should be brought 
 into hotchpot. If that be equal to, or greater than the shares 
 which fall to the other children, he will be entitled to no more, 
 though not required to refund any thing. If > it falls short of his 
 portion, he receives from the estate enough more to make him 
 equal with the rest. {Edwards v. Freeman, 2 P. Wms. 443.) 
 
 It was said by Sir Wm. Grant, in Waltoyi v. Walton, 14 Ves. 
 324, that the provision in the statute of distributions applies only 
 51 
 
402 EIGHTS OF NEXT bF KIN. 
 
 to the case of actual intestacy ; and where there ia an executor, 
 and consequently a complete will, though the executor may be de- 
 clared a trustee for the next of kin, yet they take as if the residue 
 had been actually given to them. Therefore the child, advanced 
 by his father in his lifetime, could not be called to bring his 
 share into hotchpot. There is nothing in our statute which 
 would lead to a different result. A testator may dispose of his 
 property as he pleases. If he makes an unequal distribution of 
 his estate among his children by his will, and dies possessed of 
 property not disposed of, such unbequeathed estate must be distrib- 
 uted equally, without reference to the mode in which he has made 
 his will. 
 
 There are several contingencies in the statute, on the happening 
 of which the whole or some portion of the estate must be distrib- 
 uted to the next of kin of the deceased. To ascertain who these 
 next of kin are, we are governed by the same rules of consanguinity 
 as those which determine the right of administration in cases of 
 intestacy. (2 Bl. Com. 515. Toller, 381. 2 Burris E. L., quarto 
 ed. 713, title Wills, Distribution. Hurtin v. Prodi, 3 Bradf. 
 414.) It matters not how distant they are from the common 
 ancestor, whether children, grandchildren, or great grandchildren, 
 or whether they are in the ascending or descending line. 
 
 The party, to be entitled, must be of kin. By this is meant a 
 relationship by blood, and not merely the conventional relation- 
 ship created by intermarriage. Hence the mother-in-law or step- 
 mother of an intestate, not being of his blood, can claim nothing 
 under the statute of distributions. Nor, upon the same principle, 
 can a brother-in-law or sister-in-law. 
 
 The object of the statute is to make an equal distribution among 
 those of the same degree of kindred to the intestate, except where 
 a different rule is prescribed. In computing the propinquity of 
 kindred we are governed by the rules of the civil law, by which 
 the intestate himself is the terminus a qtio, the several degrees are 
 numbered. Under that rule the father stands in the first degree, 
 the grandfather and grandson in the second ; and in the collateral 
 line the computation is from the intestate to the common ancestor 
 of the intestate and the person whose relationship is sought after, 
 
RIGHTS OF NEXT OF KIN. 403 
 
 and then down to that person. According to that rule the intes- 
 tate and his brother are related in the second degree, the intestate 
 and his uncle in the third degree, (2 Rentes Com. 422, Burds' E. 
 L. supra.) 
 
 The father succeeds to the whole personal estate of his son who 
 dies intestate, leaving no widow or descendants, in exclusion of the 
 brothers and sisters. The mother would also have succeeded aa 
 against the collaterals, but for a saving clause, which excludes her 
 from all but a ratable share. The object of her exclusion was, to 
 prevent her from transmitting the whole estate, in case of a re- 
 marriage, into another line, in entire exclusion of the brothers and 
 sisters ; but she still takes the whole personal estate in exclusion 
 of more remote relations of the intestate. In the case of an ille- 
 gitimate dying intestate and unmarried, there was formerly an 
 absolute obstruction of the course of succession ; such person could 
 transmit to his lineal descendants, but not to his ancestors or col- 
 lateral relatives. ( The Public AdmW v. Hughes, 1 Bradf. 125.) 
 But in this state, by the act of 1845, p. 257, amending the 8th 
 subdivision of the 15th section, and which is cited at large in a 
 preceding page, the mother of an illegitimate, who dies leaving no 
 child, or descendant, or widow, takes the whole personal estate, 
 and is entitled to letters of administration, in exclusion of all other 
 persons. And if such mother be dead, the relatives of the de- 
 ceased, on the part of the mother, take in the same manner as if 
 the deceased had been legitimate, and are entitled to letters of 
 administration in the same order. 
 
 in successions to personal estate, relatives of the half blood, in 
 equal degrees of cognation to the intestate, take equally with rela- 
 tives of the whole blood ; and they also take by representation, 
 where representation would be allowed among relatives of the 
 whole blood. {Hallet v. Hare, 5 Paige, 315.) 
 
 The grandmother is preferred to the aunt, not because she is in 
 the ascending line, but because she is nearer of kin, according to 
 , the computation of the civilians, by one degree. 
 
 The 9th subdivision of the 75th section, it has been seen, pro- 
 vides that where the descendants, or next of kin of the deceased 
 entitled to share in his estate, shall be all in equal degree to the 
 deceased, their shares shall be equal. The English statute con- 
 
404 CASE OF FOEEiaN DOMIOIL. 
 
 tains the same provision. A brother of the intestate and a grand- 
 father of the intestate are equally near of kin, and each is related 
 in the second degree. By a literal construction of the act, their 
 shares of the intestate's personal estate would be equal. But it 
 has been held in England, for more than a century before the 
 adoption of our revised statutes, that the brother of the intestate 
 will exclude the grandfather of the intestate ; and this, Chancellor 
 Kent thinks, is the better construction of the 118th novel of Jus- 
 tinian. {Evelyn v. Evelyn, 3 Atk. 762, 764. ^. C, Ambler, 191, 
 and cases there cited.) According to the principle which usually 
 prevails, where a statute of the mother country had received a 
 uniform construction before it was adopted here, it retains the 
 construction thus given to it, unless there is some plain and une- 
 quivocal indication of a coutrary intention in the adopting act. 
 This construction, of the act may be considered as an exception to 
 the general rule, founded on motives of convenience and policy. 
 
 A grandfather will exclude an uncle or aunt, as being one de- 
 gree nearer of kin. A great grandfather is entitled to an equal 
 distributive share with an uncle or aunt, both being within the 
 same degree. {Blackborough v. Davis, 1 Salk. 38. S. C, 1 P. 
 Wms. 41.) ^ 
 
 In the discussion of the subject, we have hitherto taken for 
 granted that the person whose estate was the subject of distribu- 
 tion was domiciled in this state. If such were not the fact ; if his 
 residence here was merely temporary or casual, and his permanent 
 domicil under another jurisdiction, a different rule prevails. It 
 Was well remarked by the learned surrogate of New York, in The 
 Public Administrator v. Hughes, 1 Bradf. 130, that it has be- 
 come a settled principle among civilized nations, to substitute for 
 the domestic rule of distribution the law of distribution which pre- 
 vails in the country where the deceased was domiciled at the time 
 of his death. On this principle, in Burr v. Sherwood, 3 Bradf. 
 85, a question arose between the administrator of a married woman 
 and the administrator of her deceased husband as to the rule of 
 distribution ; and it was held to be a.ccording to the law of Con- 
 necticut, where the parties were married and domiciled at the time 
 of their death. In Churchill v. Prescott, Id. 233, the distribution 
 was directed to be made according to the law of New Hampshire, 
 
CASE OF FOREIGN DOMIOIL. 405 
 
 where the deceased was domiciled when he died. In Graharn, v. 
 The Public Administrator , 4 id. 127, the distribution of the 
 estate of the intestate, who died at the marine hospital in New 
 York, was made according to the law of Scotland, being her last 
 domicil. 
 
 The rule, as settled in England and by the general usage of 
 nations, as to real and personal property, has repeatedly been 
 declared to constitute a part of the municipal jurisprudence of this 
 country. The rights to personal property are regulated by the laws 
 of the country where the deceased lived ; but the suits to enforce 
 those rights must be governed by the laws of that country in which 
 the tribunal is placed. {Dixon's Ex. v. Ramsey's Ex., 3 Crunch, 
 319.) 
 
 There is no difficulty in the principle ; the only embarrassment 
 which arises is as to the facts which constitute domicil in a par- 
 ticular case. It is well settled that every person must have a 
 domicil some where. A domicil can only be acquired by residence 
 with the intention of remaining at the new place of abode. Inten- 
 tion alone is not sufficient ; the new domicil must be established 
 animo et facto, by a union of the fact and intention. ( Graham 
 V. The Public Administrator, 4 Bradf. 127. Story's Conflict of 
 Laws, § 41, ch. 3.-) 
 
 There is no fixed or definite period of time requisite to create a 
 domicil. The residence to create it may be short or long, accord- 
 ing to circumstances. It depends on the actual or presumed 
 intention of the party. A person being in a place is prima facie 
 evidence that he is domiciled there ; but it may be explained and 
 the presumption rebutted. The place where a man carries on his 
 established business, or professional occupation, and has a home 
 and residence, is his domicil, and he has all the privileges, and is 
 bound by all the duties flowing therefrom. Though his family 
 reside part of the year at another place, such place is regarded 
 only as a temporary residence, and the home and domicil for busi- 
 ness takes away the character of domicil from the other. The 
 original domicil of the party always continues till he has fairly 
 changed it for another ; and if a party has two temporary domi- 
 cils, and a residence in each alternately of equal portions of time, 
 the rule is^ that the place where the party's business lies should 
 
406 PAYMENT OF DISTKIBUTIVE SHAEES. 
 
 be considered his domicil. (See note, 2 Wms. Ex. 1303. 2 Kent's 
 Com. 429 et seq. Andrews v. Herriot, ^ Cowen, 516 et seg., note 
 of Judge Cowen, where the cases are collected and examined.) 
 
 With regard to the application of the rule, the doctrine is that 
 the place of domicil is the place of the principal administration, 
 and with reference to which the distribution amongst the next of 
 kin or legatees is made. {Churchill v. Prescott, 3 Bradf. 283.) 
 But a foreign executor or administrator cannot sue in our courts 
 without obtaining letters testamentary, or of administration, aux- 
 iliary to the grant abroad. [Morrell v. Dickey, 1 J. Ch. R. 153. 
 McNamara v. Dwyer, 1 Paige, 239.) If a foreign executor or 
 administrator desires to reach funds in this state through the 
 instrumentality of our courts, letters should be granted by the 
 surrogate auxiliary to the main grant, and the person so appointed 
 should remit the funds collected by him to the principal executor 
 or administrator, to be distributed according to the law of the 
 domicil of the deceaseds But before remitting such funds he is 
 bound first to apply the assets found here to pay debts due to our 
 own citizens. {Churchill v. Prescott, supra. Dawes v. Head, 3 
 Pick. 128.) 
 
 If a foreign executor brings assets into this state, it was held 
 by the chancellor in McNamara v. Dwyer, supra, that he could 
 be compelled to account in a court of equity here for the trust 
 funds, at the suit of creditors in this state, without taking out 
 letters of administration on the estate of the deceased. 
 
 In concluding this section, it remains to speak of the payment 
 of the distributive share, the persons entitled to receive it, and 
 the time when it is payable. 
 
 The statute of distributions may be considered as the last. will 
 and testament of every person dying intestate in whole or in part, 
 made for the benefit of his widow and next of kin, by the legisla- 
 ture. The right to it vests on the death of the intestate, and 
 should the person entitled die before distribution made, his dis- 
 tributive share will vest in his personal representatives, to be dis- 
 tributed to his next of kin. 
 
 It is as important for an executor or administrator to ascertain 
 the true person authorized to receive a distributive share of tho 
 
PAYING SHAKES TO MINORS. 407 
 
 estate of the deceased, as it is in the case of a legacy. A payment 
 to a person not entitled to receive it, although bona fide, will be 
 no protection against the claim of the rightful party. 
 
 The general rule is, that the distributive share of the estate of 
 the deceased is not due to the next of kin, or widow, from the 
 executor or administrator, until one year from the date of the 
 letters testamentary, or of administration, (2 R. S. 116, § 18 ;) 
 and a general account of administration cannot be enforced until 
 after the expiration of eighteen months from the same period. (2 
 R. S. 92, § 52 et seq.) 
 
 But there are cases where payment may be decreed at an earlier 
 day. Thus, by the 82d section, (2 R. iS. 98,) any person entitled 
 to any legacy or distributive shar^ of the estate of the deceased 
 person, at any time previous to the expiration of one year from 
 the granting of letters testamentary, or of administration, is 
 authorized to apply to the surrogate, either in person or by guar- 
 dian, after giving reasonable notice to the executor or administra- 
 tor, to be allowed to receive such portion of such legacy or share 
 as may be necessary for his support. {Seymour v. Butler, 3 
 Bradf. 193.) The 83d section provides that if it appears that 
 there is at least one-third more of assets in the hands of such 
 executor or administrator than will be sufficient to pay all debts, 
 legacies and claims against the estate, then known, he may in his 
 discretion allow such portion of the legacy or distributive share to 
 be advanced as may be necessary for the support of the person 
 entitled thereto, upon satisfactory bonds being executed for the 
 return of such portion, with interest, whenever required. This 
 provision, however, is not applicable to the public administrator in 
 the city of New York. 
 
 'W^hen a distributive share is to be paid to a minor, the surrogate 
 may direct the same to be paid to the general guardian of such 
 minor, and to be applied to his support and education, or he may 
 direct the same to be invested in permanent securities, as provided 
 in the case of legacies to minors, with the like authority to apply 
 the interest, and subject to the same obligations. (2 R. S. 98, 
 § 80.) 
 
 The observations made in the 4th section of this chapter, on the 
 subject of paying legacies to minors, and the practice there indi- 
 
408 PAYING SHARES TO MINOES. 
 
 cated, are applicable to this branch of the subject. (See ante, 
 page 383 et seq.) 
 
 The mode of proceeding under the 82d and 83d sections, to ob- 
 tain a portion of a legacy or of a distributive share for the support 
 of an infant, is summary. The executor or administrator, on re- 
 ceiving notice of the application, should prepare an account of his 
 administration, as far as he can then ascertain it, and of the assets ; 
 which account should be exhibited to the surrogate, under oath, and 
 left with him as a part of the papers in the cause. The order for the 
 allowance or the refusal should be entered in the minutes, but it is 
 conceived to be the best practice to transcribe the account, after 
 putting it in proper form, if it was not already so, in the book for 
 keeping the accounts of executors and administrators. The ex- 
 pense of the application ought not, in general, to be borne by the 
 fund belonging to the infant ; nor should the motion be resisted, 
 if it appears that at least one third more of assets are in the hands 
 of the executors or administrators than sufficient to pay all debts, 
 legacies and claims against the estate. In such a case the execu- 
 tor or administrator should make the advance to the legatee or 
 party in distribution, in anticipation of a final settlement. Indeed, 
 in many cases, such advances can be safely made, without exact- 
 ing a bond for refunding. The bond being for the benefit of the 
 executor or administrator, may be dispensed with by him. 
 
 At any time after one year shall have elapsed from the date of 
 the letters testamentary or of administration, payment of a distrib- 
 utive share may be decreed by the surrogate, upon the application 
 of a relative entitled thereto. (2 R. S. 116, § 18.) No bond is 
 required from the next of kin to the executor or administrator, to 
 refund in this case. If the executor or administrator has pursued 
 the steps pointed out by law, he will, after the expiration o^the 
 year from the date of his letters, be possessed, in general, of a 
 knowledge of the extent of the assets, and of the claims against 
 the estate. If he has failed to acquire such knowledge, the next 
 of kin ought not to be prejudiced or delayed by his negligence or 
 fraud. 
 
 It is the duty of the executor or administrator, as soon after the 
 year from the date of his letters as is practicable, without being 
 cited by the surrogate for that purpose, to pay over the surplus of 
 
ElvTFOEOING PAYMENT OF LEGACIES. 409 
 
 the estate, after payment of debts and charges, to the parties en- 
 titled thereto. The statute contemplates that six months will be 
 long enough for this purpose. Hence, after the lapse of eighteen 
 months from the date of the letters testamentary or of administra- 
 tion, the executor or administrator, either on the application of a 
 person interested as creditor, legatee or next of kin, or upon his 
 own application, may render a final account of his administration 
 to the surrogate by whom he was appointed. (2 R. S. 92 et seq.) 
 
 We shall treat of the practice in rendering such account in a 
 subsequent chapter. 
 
 The practice formerly was for the executor or administrator to 
 require a bond to refund in all cases of the payment of distribu- 
 tive shares. This doctrine was fully discussed by Chancellor 
 Kent, in Genet v. Talmadge, (1 John. Ch. 3,) and it was to 
 obviate the inconvenience and frequent injustice of that practice, 
 that the foregoing provisions were introduced into the revised 
 statutes. {See Revisers' Notes.) An executor or administrator 
 who conducts his business agreeably to the directions of the stat- 
 ute, may, at the end of eighteen months from his appointment, ob- 
 tain a final settlement of his administration and be discharged from 
 all future responsibility. 
 
 CHAPTER V. 
 
 OF ENFORCING THE PAYMENT OF LEGACIES AND DISTRIBU- 
 TIVE SHARES IN SURROGTAES' COURTS, AND HEREIN OF COM- 
 PELLING AND RENDERING FINAL ACCOUNTS. 
 
 We have in a preceding chapter treated of the mode of enforc- 
 ing the payment of judgments, by proceedings in surrogates' 
 courts, and have discussed, to some extent, the subjects of legacy 
 and distribution. We come now to consider the mode of enforcing 
 the payment of legacies and distributive shares of the estates of 
 deceased persons. And we shall close this branch of our subject 
 by pointing out the practice in rendering and settling the final 
 accounts of executors and administrators, in surrogates' courts. 
 52 
 
410 ENFORCING PAYMENT OE LEGACIES. 
 
 Section I. 
 
 Of the mode of enforcing the payment of legacies and distribu- 
 tive shares. 
 
 We have shown in a previous chapter, that there are two instances 
 where payment of a legacy may be decreed within a year from the 
 date of the letters testamentary or of administration ; 1. Where 
 the legacy is directed by the will to be sooner paid, (2 R. S. 90, 
 § 44,) and 2. Where the payment of the whole or a part of a 
 legacy or distributive share is necessary for the support of the ap- 
 plicant. (2 R. S. 98, § 82.) The first embraces legacies only ; the 
 second comprises legacies, or distributive shares. The authority 
 thus to anticipate the time of payment is not exclusively to be ex- 
 ercised in favor of infants, but applies to adults also. {Seymour 
 V. Butler, 3 Bradf 193.) 
 
 The mode of proceeding is as follows : 1. In case the will 
 directs a legacy to be paid within a year, the executor or admin- 
 istrator is authorized to require a bond with two sufficient sureties, 
 conditioned, that if any debts against the deceased shall duly ap- 
 pear, and which there shall be no other assets to pay, and 
 there shall be no other assets to pay other legacies, or not 
 sufficient, that then the legatee shall refund the legacy so paid, 
 or such ratable proportion thereof with the other legatees, as 
 may be necessary for the payment of the said debts, and the 
 proportional parts of such other legacies, if there be any, and the 
 costs and charges incurred by reason of the payment to such lega- 
 tee ; and that if the probate of the will under which such legacy is 
 paid, shall be revoked or the will declared void, then that. such 
 legatee shall refund the whole of such legacy, with interest, to the 
 executor or administrator entitled thereto. (2 R. S. 90, § 44.) 
 
 An executor or administrator cannot be deemed to be in default 
 for not paying a legacy within the year, unless the bond above 
 prescribed is tendered to him duly executed and acknowledged. 
 He may, indeed, on receiving such bond voluntarily make the pay- 
 ment; but if he declines to do so,'the legatee, in order to obtain a 
 decree in his favor for the legacy, should present a petition to the 
 
EKFOEOING PAYMENT OF LEGACIES. 411 
 
 court, briefly stating the facts entitling him to payment, and pray- 
 ing for an order for that purpose. It should be duly verified, and 
 on filing it, an order should be entered in the minutes, that a sum- 
 mons issue to the executor or administrator, as in the case of pro- 
 ceedings to compel the return of an inventory. 
 
 The executor or administrator may answer the petition, either 
 by the denial of the facts set forth in it, or by setting up other 
 facts in avoidance. It is presumed that a deficiency of assets to 
 pay debts, if discovered before the application, would be a good bar 
 to a decree for the legacy notwithstanding the bond. Debts, it has 
 already been shown, claim a priority over legacies. The bond is 
 required in the case under consideration, because payment of the 
 legacy may be exacted before the condition of the assets is known. 
 It is not only for the indemnity of the executor or administrator, 
 but for the security of the legatees and parties in distribution. 
 
 If the surrogate makes a decree, it may be enforced in the man- 
 ner above suggested, or by a suit on the bond of the executor or 
 administrator whenever directed by the surroga,te. (2 R. iS. 91, 
 §45.) 
 
 2. Where the whole or a part of a legacy or a distributive 
 share is wanted before the expiration of the year from the date of 
 the letters testamentary or of administration, for the support of the 
 party entitled to such legacy, or share, although the time of payment 
 of the legacy has not arrived by the terms of the will, such party may, 
 either in person, or if a minor, by his guardian, apply to the surro- 
 gate of the proper county, to be allowed to receive such portion of such 
 legacy or share as may be necessary for his support. A reason- 
 able notice of the application must be given to the executors or 
 administrators. As the statute is silent as to the time of notice, 
 the surrogate must determine what is a reasonable notice, from a 
 view of the whole case. On the appearance of the parties, the 
 surrogate should examine into the condition of the estate, in a 
 summary way, and if there is at least one third more of assets in 
 the hands of the executor or administrator than will be sufficient 
 to pay all debts, legacies and claims against the estate then known, 
 he may in his discretion allow such portion of the legacy or dis- 
 tributive share to be advanced as may be necessary for the support 
 of the person entitled thereto, upon satisfactory bonds being ex- 
 
412 ENFORCING" PAYMENT OF LEGACIES. 
 
 ecuted for tlie return of such portion, with interest, -whenever re- 
 quired. (2 R. S. 98, §§ 82, 83.) 
 
 Prom what has been said it would seem that the surrogate 
 must act upon the account rendered by the executor or adminis- 
 trator under oath, unless the petitioner is able to impeach it. 
 The surrogate has a reasonable discretion to exercise on this ap- 
 plication. 
 
 In the foregoing cases the application may be made at any time 
 after the date of the letters testamentary or of administration. 
 There is still another class of cases where the application cannot[be 
 made until after one year from the date of the letters, and yet may 
 be made before the eighteen months from that time. This is pro- 
 vided for by the 18th section, (2 R. S. 116,) which gives the sur- 
 rogate of the proper county jurisdiction to decree the payment of 
 debts, legacies, and distributive shares, or the just proportional 
 part, at any time after one year shall have elapsed, from the grant- 
 ing of such letters, upon the application of a creditor, legatee or 
 party entitled to such distributive share. Tn this stage of the ad- 
 ministration of the estate no bail is required of the creditor, lega- 
 tee or distributee to refund. The decree of the surrogate will be 
 a complete protection to the executor or administrator to make the 
 payment directed. 
 
 The mode of the application is by petition, as in the former cases. 
 The proceeding cannot be the basis of a final account. As no parties 
 are brought before the court but the executors or administrators, 
 the surrogate should be cautious, and not decree in favor of the 
 applicant more than will be, on a final settlement of the estate, the 
 just share of the petitioner. Where the solvency of the estate is 
 doubtful, or from its complicated nature it cannot be brought to a 
 close in one year, it would seem the surrogate has a discretion 
 whether to decree payment or not. {Flagg v. Ruden, 1 Bradf. 
 19.3.) 
 
 The foregoing cases are not of frequent occurrence. It is not 
 until the eighteen months have elapsed from the date of the letters 
 testamentary or of administration that an executor or administra- 
 tor can be required to render an account of his proceedings by 
 an order of the surrogate. This order can be granted upon ap- 
 plication from some person having a demand against the personal 
 
ENTOKCING PAYMENT OF LEGACIES. 415 
 
 estate of the deceased, either as creditor, legatee or next of kin ; 
 or of some person in behalf of any minor having such claim ; or 
 ■without such application. (2 R. S. 92, § 52.) And by the sec- 
 tion as amended in 1859, in the case of an administrator, the ac- 
 count can be required upon the application of any person who is or 
 has been his bail, or of the legal representatives of such person. 
 {Law 0/1859, fage 569, ch. 261, § 1.) 
 
 It is said by the chancellor that before the revolution surrogates 
 had no jurisdiction to compel executors to render an account of 
 their administration, but that they were confined to administra- 
 tors. {Foster v. Wilbur, 1 Paige, 540.) The power was extend- 
 «d to executors in 1787, and at the present time the jurisdiction 
 over both is firmly established. It is well settled also that the 
 surrogate can, of his own motion, compel executors and adminis- 
 trators, after the expiration of eighteen months from their appoint- 
 ment, to render an account of their administration. ( Thompson 
 V. Thompson, 1 Bradf. 24. Westervelt v. Gregg, 1 Barb. 
 Ch. R. 469.) In such a case, after examining the executor or ad- 
 ministrator upon oath touching the account, and filing the account 
 and vouchers, the proceeding is thereupon terminated, and the sur- 
 rogate cannot proceed to settle the account. {Id.) 
 
 It is only where a party having some interest in the estate as 
 creditor, legatee or next of kin invokes the aid of the court, that a 
 decree can be made for the payment of a debt, a legacy or dis- 
 tributive share. The surrogate cannot, on his own motion, direct 
 such payment. It is on the motion of the claimant alone, that a 
 decree can be made in his favor ; and it is on the motion of the 
 executor or administrator alone, that the accounts of the estate 
 can be finally settled. (2 R. S. 93, § 60. Stone v. Morgan, 
 10 Paige, 615. Branson v. Ward, 3 id. 189. Westervelt v. 
 Gregg, 1 Barb. Ch. R. 478. Gratacap v. Phyfe, Id. 485.) 
 
 It was remarked by Sir John NichoU, in Grignion v. Grignion, 
 {IHagg. 535, 3 E. E. R. 289,) that the original jurisdiction in cases 
 of legacy, to enforce payment and to compel executors to perform 
 their duty, was in the ecclesiastical courts. Temporal courts, how- 
 ever, interfered by injunction or prohibition where those courts were 
 already in possession of the cause, or where the powers of the 
 ecclesiastical judges were defective or insufficient, but not where 
 
414 ENFORCING PAYMENT OE LEGACIES. 
 
 no trust was existing, beyond the mere trust of executorship, which 
 remained to be executed. Indeed, the jurisdiction of the ecclesiasti- 
 cal courts, in compelling payment of personal legacies, is older than 
 that of the court of chancery ; and it was only upon the notion of a 
 trust that equity originally assumed jurisdiction in these matters. 
 
 The course of proceeding in the Arches court is said to have 
 been as follows : The executor being cited to answer the legatee in 
 a suit of substraction of legacy, a short libel is brought in, plead- 
 ing that the testator made his will ; that he appointed 0. D. exec- 
 utor thereof; that he is since dead without revoking his will ; that 
 since his death the executor has proved the will in the proper 
 court ; that by his will the testator left si. legacy to E. F., in the fol- 
 lowing terms, (setting it forth ;) that the legacy remains unsatisfied; 
 that the executor is possessed of and has admitted assets ; has 
 been applied to and refused payment ; that the promoter is the 
 identical legatee and is of full age ; and concludes with a prayer 
 that the executor may be compelled to pay the legacy and be con- 
 demned in costs. {Butler v. Robson, 3 PhUl. 412. 2 Wms. Ex'rs, 
 1780.) In Foster v. Wilbur, 1 Paige, 540, the executors were 
 cited to render an account before the surrogate, and on the return 
 of the citation, they called upon the promoters to state the grounds 
 of their claim against the executors ; but it was not done. On 
 this branch of the case, the chancellor said " it was their duty, 
 when called on for that purpose, to file a written allegation or libel, 
 propounding or stating the substance of their claim against the 
 defendants respectively, and the nature and grounds thereof. If 
 this allegation was insufficient, and showed no grounds for pro- 
 ceeding against the executors, the court might be called upon to 
 reject it ; or they might take issue on the facts propounded ; or 
 put in a counter allegation in the nature of a plea in bar. Until 
 some issue was joined in the cause, neither party could be prepared 
 to go into the examination of testimony." 
 
 The course suggested by the chancellor may be a proper one in a 
 case like the one before him, where the citation had been issued 
 on a verbal application, ore tenus. It is not, however, the usual 
 practice in surrogates' courts at this day. 
 
 The mode of procedure generally adopted is for the claimant to 
 present a petition, in writing, to the surrogate, setting forth the 
 
ENFOKCma PAYMENT OF LEGACIES. 415 
 
 rights of the petitioner as creditor, legatee or distributee, and the 
 circumstances which create the liability of the executor or admin- 
 istrator, and praying for the appropriate relief against the execu- 
 tor or administrators. It should be verified by affidavit. 
 
 The order granted on the filing of the petition, will be an alter- 
 native order, according to the prayer of the petition, requiring the 
 executors or administrators to account and satisfy the claim, or 
 show cause, on a day to be appointed, to the contrary. The order 
 must be served on the executor or administrator by showing the 
 original, and at the same time delivering a copy, or in case of his 
 absence from home, by leaving a copy thereof with his wife, or 
 some suitable person, at the place of his residence, thirty days at 
 least before the time of hearing. 
 
 If the executor or administrator does not reside within this 
 state, the order must be served by publishing it once in each week 
 for three months before the return day thereof, in the state paper, 
 and also in the county paper where the surrogate resides who 
 issued the order, if any such paper is then published in said county, 
 and if not, in the county paper of some adjoining county, unless 
 the order be personally served on such executor or administrator, 
 and if it shall be so personally served on any such executor or admin- 
 istrator residing out of the state, at the time of service, such service 
 shall be made at least sixty days before the return thereof. {L. of 
 1837, ch. 460, § 76. 3 R. S. 178, S,th ed.) 
 
 By the 53d section (2 R. S. 92,) it is enacted that obedience to 
 this order may be enforced in the manner before directed, to com- 
 pel the return of an inventory ; and in case of disobedience, the 
 same proceedings may be had to attach the party so disobeying, 
 and to discharge him. And the like revocation of the letters 
 granted to him may be made in case of the party's absconding or 
 concealing himself, so that the order cannot be personally served, 
 or of his neglecting to render an account within thirty days after 
 being committed ; and new letters shall be granted with the like 
 effect as in those cases. (For these proceedings see ante, p. 363.) 
 
 On the return day of the order, if the claimant fails to appear, 
 the petition will be dismissed, unless cause be shown to the con- 
 trary. If the claimant appears and the executor or administrator, 
 having been duly notified, either by a personal service or by pub- 
 
416 ENFOKOING PAYMENT OF .LEGACIES. 
 
 lication, as the case may be, he may proceed ex parte to establish 
 his right to the relief sought. 
 
 If the claimant has asked for no other relief but an account, the 
 executors or administrators will be ientitled to be dismissed, on 
 complying with the order, and rendering the account. [Campbell 
 V. Bruen, 1 Bradf. 224. Westervelt v. Gregg, supra. Smith 
 V. Van Keuren. 2 Barb. Ch. 473.) 
 
 But the petition usually prays for the payment of a debt, a legacy 
 or distributive share, and the calling for an account is only sub- 
 sidiary to that relief. The parties on both sides generally appear 
 on the return of the order. 
 
 In case both parties appear, and the claim is not disputed by 
 the executors or administrators, nor a deficiency of assets pre- 
 tended, an order will be made by the surrogate directing the pay- 
 ment of the sum allowed by the surrogate. The payment of that 
 amount will terminate that proceeding. {Id.) 
 
 But various questions may arise before the surrogate, on the 
 appearance of the parties on the return of the order. 
 
 1. If the claimant has omitted to state the facts necessary to 
 entitle him to relief, in his petition, he may, in this stage of the 
 cause, be required by the executors or administrators to set forth 
 in the form of an allegation or libel, as was suggested by the chan- 
 cellor in Foster v. Wilbur, supra, a full statement of the facts 
 which constitute his claim and his right to relief; and on his failing 
 to do so, the petition may be dismissed. But if the petition has 
 been properly drawn and contains all the averments necessary to 
 give the court jurisdiction and entitle the claimant to the relief 
 prayed for, it is believed that no further pleading on his part is 
 necessary. 
 
 The claim may be resisted on the part of the executors or 
 administrators, by controverting any of the material averments of 
 the petition. It may be shown that the claimant has no interest 
 in the estate, as legatee or next of kin ; that the debt which he 
 sets up has been barred by the statute of limitations, or is barred 
 by a release or otherwise. [Gratacap v. Phyfe, 1 Barb. Ch. R. 
 486.) He may also show that the debt has been disputed by the 
 executors or administrators, and not referred as allowed by the 
 act, or prosecuted to judgment. It is not believed that a creditor 
 
EESISTING CLAIMS AGAINST THE ESTATE. 417 
 
 at large, whose pretended debt is not assented to by the executors 
 or administrators, but on the contrary contested by them, can 
 institute an action before the surrogate to recover it in this way. 
 {Dissosway v. The Bank of Washington, 24 Barh. 60. Chan- 
 des V. Northup, Id. 129. Francisco v. Fitch, 25 id. 130. Wilcox 
 V. Smith, 26 id. 316.) The cases of Campbell v. Bruen, 1 Bradf. 
 225, and Bahcock v. Lillis, 4 id. 218, are not in conflict with this 
 position. If a demand against the deceased be presented to the 
 executors or administrators, with the vouchers thereof, and be 
 assented to by them, whether it was a mere equitable claim, or an 
 unliquidated demand before such presentation, it can no doubt be 
 allowed by the surrogate, and ordered to be paid. If it be not 
 assented to, but on the contrary contested, the claimant must have 
 it liquidated by a judgment in a court of law, either on a trial or 
 by a reference, before he can rightfully invoke the aid of the sur- 
 rogate in the premises. . — 
 
 On the same principle the claim for a distributive share may be 
 resisted on the ground that the applicant is not one of the next of 
 kin within the meaning of the statute of distributions ; or that he 
 has received his share by way of advancement ; or if the claimbe for 
 a legacy, that there are no assets applicable to the payment of it, 
 or that it was satisfied by the testator in his lifetime ; or if it be 
 a specific lega.cy, that it has been adeemed by the destruction of 
 its subject in the lifetime of the testator. So, also, the question as 
 to whether theje has been a donatio mortis causa sometimes 
 arises on taking an account. A donatio mortis causa partakes of 
 the nature of a legacy and of a gift inter vivos. The gift mus't be 
 with a view to the testator's death ; it must be conditioned to take 
 effect on the death of the donor by his existing disorder ; and it 
 must be accompanied by an actual delivery of the subject of the 
 donation. {Craig v. Craig, 3 Barb. Ch. R. 76. Harris v. Clark, 
 8 Comst. 93. Willard's Eq. Juris., 553 et seq.) 
 
 2. It follows, from what has been said, that the executors or 
 administrators may, in answer to the claim, show either that no 
 assets of the deceased ever came to their hands or under their con- 
 trol, or that they have fully administered them. 
 
 It is said that, in England, courts of equity exercise a concurrent 
 jurisdiction with the spiritual court in these matters ; but where 
 53 
 
418 EESISTING CLAIMS AGAINST THE ESTATE. 
 
 the case is such that the ecclesiastical court cannot do complete 
 justice in the cause, chancery has not only a concurrent, but ex- 
 clusive jurisdiction. Thus, where the husband sues in the spiritual 
 court for a legacy bequeathed to the wife, the court of chancery 
 will grant an injunction to stay the proceedings, since the ecclesi- 
 astical judge has no authority to compel a settlement. So in 
 cases of legacies to infants, equity will interfere in their behalf 
 to protect their interests and to give proper directions for securing 
 and improving the fund for their benefit, which cannot be effec- 
 tually done in the ecclesiastical court. (2 W?ns. Ex. 1781. 2 
 Rof. on Legacies, 694, 3d ed.) 
 
 But these reasons for ousting the surrogate's court of jurisdic- 
 tion do not now exist in this state, whatever may have been the 
 case before the revised statutes of 1830. It is believed that the 
 surrogate has power to protect the rights of the wife when the 
 husband sues for a legacy bequeathed to her, and can equally 
 with the court of chancery guard the rights of infants. (2 R. S. 
 91, §§ 42 to 51. McLoskey v. Raid, 4 Bradf. 334.) The acts 
 of 1848 and 1849, to protect the property of married women, 
 which have been already referred to elsewhere, sufficiently guard 
 all bequests to the wife at the present day from being seized and 
 appropriated by the husband or his creditors, without her consent. 
 
 The surrogate has in these matters, in many respects, a more 
 ample jurisdiction than is possessed by the English ecclesiastical 
 courts. In matters of account, it has been treated by the chancel- 
 lor as concurrent with that of courts of equity. The pendency of a 
 suit in chancery, therefore, by one creditor for an account, if the 
 suit has not proceeded to a decree, is no bac to a proceeding insti- 
 tuted before the surrogate by another creditor for an account. But 
 if the same creditor, who has filed a bill in chancery against an 
 executor or administrator for an account, afterwards cites him to 
 an account before the surrogate, the pendency of the suit in 
 chancery may be set up before the surrogate, in the nature of a 
 plea in abatement, and will constitute a valid objection to the pro- 
 ceedings there. {Rogers v. King, 8 Paige, 210.) 
 
 In the case of proceedings in courts of concurrent jurisdiction, 
 there will be a point in which one or the other will obtain the ex- 
 clusive control. Hence, after a decree for an account has been 
 
DECREEING PAYMENT OF DEBTS. 419 
 
 made in a chancery suit for the benefit of all persons interested in 
 the estate of the deceased, such decree will deprive every such 
 person of the right to proceed before the surrogate for an account ; 
 and upon a proper application, the court of chancery, after such 
 decree, will grant an injunction as a matter of course, to stay all 
 proceedings for an account before the surrogate, and to compel 
 them to come in and establish their claims under the decree. 
 {Rogers v. King, supra.) The same jurisdiction formerly pos- 
 sessed by the chancellor is now enjoyed by the supreme court. 
 
 But this right of the court which has first acquired jurisdiction 
 of the cause to restrain proceedings in another court of concurrent 
 jurisdiction, is not reciprocal ; nor is it necessary that it should 
 be so. The surrogate cannot prohibit proceedings by executors or 
 administrators in the supreme court. {In the matter of Parker, 
 1 Barb. Ch. R. 154.) The latter court will, it is to be presumed, 
 on a proper application, grant the requisite relief 
 
 There is another respect in which the jurisdiction of the surro- 
 gate vastly transcends that of the English ecclesiastical courts. 
 The spiritual jurisdiction, as is stated by an eminent English 
 writer, (2 Wms. Exhs, 1783,) extends to legacies of personal prop- 
 erty only ; therefore, if lands be devised to be sold for the pay- 
 ment of legacies, or if the legacies in any way arise out of the 
 freehold, they can be sued for only in a court of equity. {Barker 
 v. May, 9 Barn. 6r Ores. 489.) 
 
 With us, however, the surrogate has jurisdiction to decree the 
 payment of debts and legacies, where by any last will proved in 
 his office a sale of real estate shall be ordered to be made either 
 for the payment of debts or legacies. (2 R. S. 109, § 57.) The 
 statute in this respect gives him the same power over the fund 
 arising from such sale, both to decree an account and to enforce pay- 
 ment and distribution, as if it had been the personal property of the 
 deceased. {Id.) Uponthedoctrineof equitable conversion, the whole 
 estate, under such a will, is to be considered as personal estate, 
 from the death of the testator, so that the rents and profits of the 
 real estate received by the executor, and the proceeds of a sale 
 thereof made by him, become legal assets in his hands, for which 
 he is bound to account as personal estate. {Stagg v. Jackson, 
 1 Comsi. 206, aff. S. C. 2 Barb. Ch. R. 86. Bloodgood v. 
 
420 EQUITABLE CONVERSION— CHARGE. 
 
 Bruen, 2 Bradf. 8. Id. 107. Clark v. Clark, 8 Paige, 153.) 
 The same rule applies where a sale of real estate is made in pur- 
 suance of an authority given by any -will, as where it is ordered 
 to be sold. (Laws of 183T, ch. 460, § 75. 3 R. iS. 198, 5th ed.) 
 A sale in either case works out an equitable conversion of the real 
 into personal estate, and subjects it to the jurisdiction of the sur- 
 rogate's court. In such a case, where the will directs real and 
 personal property to be sold by the executors, and makes but one 
 fund of both the real and personal property of the testator, for the 
 purposes of the will, neither the executors or the estate should 
 be subjected to the expense of taking two accounts of the same 
 fund, or of different parts thereof; one before the surrogate and 
 the other in a court of equity^ The statute is broad enough to 
 give the surrogate jurisdiction over both. {Stagg v. Jackson, 
 supra.) 
 
 But whether, where the estate has not been devised to the exec- 
 utors in trust to sell, or where they have not been expressly or- 
 dered to sell ; or where authority, has not been, in terms, given to 
 them to sell and dispose of it, the executors can, in the surrogate's 
 court, enforce a mere charge of debts or legacies upon the testa- 
 tor's real estate, by a sale thereof, has not yet been decided. It 
 would seem that ha cannot. He is expressly prohibited from 
 ordering the sale of real estate to satisfy judgments, mortgages or 
 other charges upon the real estate of the deceased ; and every sale 
 ordered by him is required to be made subject to all charges by 
 judgment, mortgage or otherwise, upon the lands so sold, exist- 
 ing at the time of the death of the testator or intestate. (2 R. S. 
 102, § 14. Id. 105, § 32.) Such a charge could only be enforced 
 by bill in equity before the revised statutes, and it is believed 
 that the law is unaltered in this respect at this day. {Pelletreau 
 v. Rathbone, 18 John. R. 428. Lockwood v. Stockholm, 11 
 Paige, 87.) 
 
 There are doubtless, other cases where the remedy of creditors, 
 legatees and distributees can be better asserted in a court of equity, 
 than in the surrogate's court ; and this is the case, too, in many 
 instances where the jurisdiction is concurrent.* But the consider- 
 ation of this class of cases does not belong to this treatise. 
 
 The surrogate's court has no power to compel the execution of 
 
FINAL ACCOUNT. 421 
 
 trusts ; and therefore, where a legacy is given to trustees, or a 
 trust is created other than what arises from the ofSce of ex- 
 ecutor, the remedy can only be enforced in a court of equity. Eut 
 if the trust has been executed, and the executor merely withholds 
 the legacy, the surrogate, it seems, has jurisdiction. By a recent 
 statute, testamentary trustees may, at their option, render their 
 accounts before the surrogate ; but this belongs to the subject of 
 the next section. (2 R. S. 94, § 66, as amended by the Laws of 
 1850, ch. 272. Grignion v. Grignion, 1 Hagg. 535.) 
 
 A suit instituted by a creditor, legatee or next of kin, after the 
 expiration of eighteen months from the date of the letters testa- 
 mentary or of administration, may, at the election of the executor 
 or administrator, be the basis of a final settlement of his adminis- 
 tration. (2 R. S. 93, § 60.) If he suffers it to proceed against 
 him to a final decree, without bringing before the court the parties 
 in interest, he is left exposed to be again proceeded against by 
 the other persons interested . in the estate. {Branson v. Ward, 
 3 Paige, 189. Stone v. Morgan, 10 id. 615. Campbell v. 
 Bruen, 1 Bradf. 224. Westervelt v. Gregg, 1 Barb. . Ch. R. 
 469.) The decision is not conclusive on such as are absent and 
 have not been cited. An executor or administrator when he is 
 required by the surrogate to render an account, if he desires to 
 have the same finally settled, in the surrogate's court, must apply 
 to the surrogate for a citation, requiring the creditors and next of 
 kin of the deceased, and the legatees, if there be any, to appear 
 before him, on some day therein to be specified, and to attend the 
 settlement of such account. (2 R. &\ 93, § 60. Toller, 494.) 
 
 The proceedings and practice on such an application will be 
 treated of in the next section. We shall also postpone to the 
 next section the principles on which the accounts of executors and 
 administrators are to be stated and settled. 
 
422 GENERAL AOOOUNT. 
 
 Section II. 
 
 Of the -parties necessary to a general account, the mode of 
 serving process, and herein of the appointing guardians ad 
 litem /or minors, and notice to creditors to exhibit claims. 
 
 The executor or administrator, being required by the order of 
 the surrogate to render an account, as was mentioned in the pre- 
 ceding section, and being desirous of having the account finally 
 settled, may, on his part, apply to the surrogate before whom he 
 is summoned to account for a citation requiring the creditors and 
 next of kin of the deceased, and the legatees, if there be any, to 
 appear before him on some day therein to be specified, and to at- 
 tend the settlement of such account. (2 R. S. 93, § 60.) By 
 applying for such citation, he admits the right of the creditor, 
 legatee, or next of kin to call him to account. {Kellett v. Rath- 
 bun, 4 Paige, 102.) If the party on whose application the sum- 
 mons was issued against the executor or administrator to account, 
 'lias no valid claim against the estate, either by reason of pay- 
 ment or otherwise, the latter should, if he desires to resist the 
 application, put in an allegation of the fact before the surrogate, 
 on the return of the summons. To this the actor may plead, and 
 if it is decided in favor of the executor or administrator, it will bar 
 the party on whose application the summons was issued, from 
 calling the executor or administrator to account. {Kellett v. Rath- 
 bun, supra-) Enough was said on this branch of the subject in 
 the foregoing section. 
 
 If, however, the decision is against the executor or administra- 
 tor, an order should be entered by the surrogate in the minutes, 
 requiring the executor or administrator to account. This order, 
 it must be remembered, is different from the final decree pro- 
 nounced on the account rendered. It is itself the subject of ap- 
 peal, and until reversed is conclusive against the executor or ad- 
 ministrator, that he has not fully accounted, and that the party 
 who applied for the process has some claim against the estate. 
 {KelUtt V. Rathbun, supra.) If the executor or administrator 
 has already settled with all persons interested in the estate, he 
 
GENERAL AOOOUNT. 423 
 
 should resist the order compelling him to account, by some of the 
 ways suggested in the last section, or otherwise. But if he is 
 satisfied that the complainant has some claim against the estate, 
 and is desirous of bringing the suit to a close, and to have the 
 estate finally settled before the surrogate, he should present a 
 petition to the surrogate, after being required to account, setting 
 forth, as the case may be, the date of his appointment as executor 
 or administrator ; the death of the testator or intestate ; the names 
 of the legatees, if any : the names of the next of kin and persons 
 entitled under the statute of distribution, in case of intestacy ; 
 their ages, if infants, and whether guardians have been appointed 
 or not ; the fact that a summons had been regularly served and 
 an order to account duly made by the surrogate ; and should con- 
 clude with a prayer for a citation to be issued by the surrogate, 
 under his seal of ofBce, to be directed to the creditors and -next of 
 kin, and the legatees, if there be any, and requiring them to 
 appear before the surrogate on some day therein to be specified, 
 and to attend the settlement of the account of his administration 
 of the estate. (2 R. S. 93, § 60. Toller, 494.) The petition 
 should be sworn to, and the surrogate, on filing it, should enter 
 an order in the book of minutes for the issuing of the citation, and 
 at the same time adjourn the hearing of the matter for which the 
 summons issued, to the same time and place. (App. 'No. 77.) 
 
 With respect to the mode of serving this citation, the statute 
 provides that it shall be served personally on all those to whom it 
 shall be directed, living in the county of the surrogate, at least 
 fifteen days before the return thereof; and upon those living out 
 of the county, or who or whose residence may be unknown, either 
 personally, fifteen days previously, or by publishing the same in 
 a newspaper printed in the county, at least four weeks before the 
 return thereof, and in such newspaper printed in other counties 
 where any creditors or other persons interested in the estate of 
 the deceased may reside, as the surrogate, upon due inquiry into 
 the facts, shall direct. (2 R. iS. 93, § 61.) 
 
 If any of the creditors or persons interested in the estate, 
 reside in any other state of the United States, or in either of the 
 provinces of Canada, the citation is required to be published once 
 in each week, for three months, in the state paper, unless such 
 
424 GENERAL ACCOUNTIITG. 
 
 citation be personally served on such creditors, at least forty days 
 before the return thereof; and if there be any such creditors or 
 other persons interested, residing out of the United States, and 
 out of the provinces of Canada, the citation is required to be pub- 
 lished as aforesaid, six months. {Id. § 62.) 
 
 The revised statutes make no provision in case any of the par- 
 ties are minors, and, therefore, leave it to be regulated by common 
 law rules. Minors are not esteemed in law as capable of conduct- 
 ing or defending a suit for themselves, and therefore cannot be 
 deprived of any of their rights by a mere neglect to appear. 
 {Kellett v. Kathbun, 4 Paige, 102.) We had occasion to consider 
 the mode of serving a citation on a minor in a former chapter. 
 {See ante, p. 157.) It should be served in the presence of his 
 legal guardian, or in the presence of some person upon whom the 
 actual care and custody of the minor has for the time being de- 
 volved. The citation, in such a case, should require the minor 
 to appear according to law ; that is, by a guardian lawfully 
 appointed. If the minor has no general guardian, or if the gene- 
 ral guardian has an interest adverse to the rights of the minor, so 
 that he cannot act as guardian in relation to that matter, a guar- 
 dian ad litem should be appointed by the surrogate to protect the 
 rights of the minor. This appointment is made by an order in the 
 minutes, on filing the petition of the minor, if above the age of 
 fourteen years, and the written consent of the guardian duly 
 proved. If the infant be under the age of fourteen years, the 
 application should be made by some one in his behalf ; but the 
 consent of the guardian should always be taken in writing before 
 the appointment is made. No other notice need be given to the 
 minor of an intention to appoint a guardian than what is contained 
 in the citation. The appointment is usually made under the seal 
 of the court, though some surrogates issue only a copy of the order. 
 The former is deemed the preferable course. 
 
 The distinction in the spiritual courts between an infant and a 
 minor is, that the former is so denominated if under seven years 
 of age, and the latter from seven to twenty-one. The revised 
 statutes have made the age of fourteen the dividing line between 
 the two classes. One person may be appointed guardian ad litem 
 for many infants. {In the matter of Frits, 2 Paige, 874.) 
 
APPOINTMENT OF GUAKDIAN AD LITEM 425 
 
 The court never selects a guardian ad litem for an infant de- 
 fendant on the nomination of the adverse party. It is frequently 
 necessary for the guardian seriously to contest the complainant's 
 claim. It is his duty in every case to ascertain from the infant 
 and his friends, or from other sources of information, what are the 
 legal and equitable rights of his ward. If the infant has any 
 substantial rights which may be affected injuriously by the pro- 
 ceedings in the cause, or if the claim against him is of doubtful 
 character, it is also the duty of the guardian to attend before the 
 court on the hearing ; on the taking of testimony in the cause ; 
 on references, and on all proper occasions, to bring forward and pro- 
 tect the rights of the ward. And if the guardian neglects his duty, 
 in consequence of which the rights of the infant are not properly 
 attended to, or are sacrificed, he may be punished for the neglect. 
 He will, in such a case, be liable to the infant for all the damage 
 he may sustain. {Knickerbacker v. Defreest, 2 Paige, 304.) 
 
 The 116th section of the code of procedure of 1852, makes pro- 
 vision for the appointment of guardians ad litem for infants, as 
 well when he is plaintiff as when he is defendant ; and as well on 
 his own motion as on the motion of the adverse party, when the 
 infant fails to apply. Though the code of procedure does not ex- 
 tend to surrogates' courts, and there is no particular legislative 
 enactment on the subject, the surrogate will be justified in pro- 
 tecting the rights of infants, to follow the course of practice adopted 
 by the legislature for other courts. 
 
 The guardian ad litem, if he manages the matter confided to 
 him with fidelity, is entitled to his reasonable expenses, and such 
 compensation for his services as the court may deem reasonable. 
 
 As the creditors of the deceased are to be made parties to the 
 suit, it was obviously necessary that some means should be adopt- 
 ed to discover their names and residence, as well as the nature and 
 extent of their demands against the estate. This was one object 
 of the provision which we have discussed in a previous chapter 
 relative to the call of the executors or administrators, for the pre^ 
 sentation of claims against the estate. It is doubtful whether 
 creditors, not actually served with notice, or appearing, can be 
 bound by a decree for a final account upon the service of a citation 
 by a publication merely, as is provided for unknown parties, whefl 
 54 
 
426 KENDERING FINAL ACCOUNT. 
 
 the executor or administrator has omitted to pursue the course 
 prescribed by law to ascertain who the creditors are. As was re- 
 marked before, when the regular notice to exhibit claims has 
 been published as the law directs, the executors or administrators 
 have a right to assume that the claims presented in pursuance of 
 it, are all the claims which exist against the estate, and to dis- 
 tribute the assets in their hands upon that hypothesis. These 
 creditors thus become known parties, and can be reached by a cita- 
 tion. Those who have failed to avail themselves of this notice, are 
 nevertheless entitled to the notice of the time and place of attend- 
 ing before the surrogate, for the final accounting, and which notice 
 they receive by means of the publication required. That notice is 
 sufficient to make them parties to the accounting, provided the 
 notice to exhibit claims shall have been previously given. 
 
 The statute expressly provides that any creditors, legatees or 
 other persons interested in the estate of the deceased as next of 
 kin or otherwise, may attend the settlement of such account, and 
 contest the same ; and they and the executor or administrator 
 shall have process to be issued by the surrogate to compel the at- 
 tendance of witnesses. (2 R. S. 94, § 63. Marre v. Ginochio, 
 2 Bradf. 165. Metzger v. Metzger, 1 id. 265. Bank of Pough- 
 keepsie v. Hasbrouck, 2 Seld. 216.) 
 
 The testimony of foreign witnesses may be taken on commission 
 as in the case of proving wills. (^Laws of 1837, ch. 460, § 77, page 
 637.) This is done in the same manner as in courts of record. 
 
 Section III. 
 
 Of the mode of rendering ike account, and herein of auditors 
 and allowing ike claims of the executors or administrators 
 against the estate, and of their commissions and expenses. 
 
 On the return of the citation issued on the application of the 
 executors or administrators, if it appears by affidavit to have been 
 regularly served and published, as the law directs, an order should 
 be entered in the minutes giving leave to them to render their ac- 
 count. If, however, any of the parties are minors, who have not 
 appeared by guardian, a guardian ad litem should be appointed for 
 them, before the order to account is granted. It is conceived not 
 
EElTDERING FINAL AOOOUNt. 427 
 
 to be necessary to compel the appearance of any of the defendants. 
 If they make default, after having been regularly cited, the account 
 rendered and finally settled, will be equally obligatory, as if they 
 appeared. (Kellett v. Rathbun, supra.) 
 
 "We have said that the suit brought by the creditor, on which 
 the order to account was entered, and which led to the subsequent 
 proceedings of the executors or administrators to have the whole 
 accounts of their administration finally settled, should be adjourn- 
 ed until the return of the citation of the executors or adtninistra- 
 tors for this purpose. The two actions in truth become parts of 
 one and the same proceeding. Like the original and cross bill in 
 equity, both proceed together and constitute but one suit. The 
 party who commences this action, whether he be creditor, legatee 
 or party entitled to a distributive share, gains no advantage by 
 reason of the priority of his action. All are to be paid in full, if 
 there be assets enough, and if not, they are to receive such pro 
 rata share as they are entitled to'under the statute of distributions. 
 
 On the return day of the citation, or such other day to which 
 the proceedings may be continued by adjournment, the account of 
 the executors or administrators should be presented, in writing, 
 accompanied with the vouchers for all debts, legacies and expenses 
 paid, together with the sums claimed by them for their commis- 
 sions. (For forms, see App. 75 to 83.) 
 
 Great care should be practiced in drawing up the account, that 
 it should contain a truthful statement of all the assets for which 
 the executors or administrators are accountable, and the disposition 
 that has been made of the same, whether by losses or payment of 
 debts, legacies or other claims. 
 
 It should charge the executors with the amount of the inventory, 
 the increase of the assets by interest or otherwise, and any other 
 property belonging to the estate, which has come to their hands. 
 It should credit them with the decrease in the value of any of the 
 assets ; with such debts as are charged in the inventory and prov- 
 ed not to be collectable, and were therefore lost to the estate with- 
 out their fault ; for moneys paid to creditors, legatees and next of 
 kin, naming each with the amount paid and time of payment ; and 
 the necessary expenses of the administration, including their own 
 commissions. These statements should be in the form of debtor 
 
428 RENDERING FINAL AOOOUNT. 
 
 and creditor, and should be sufficiently in detail to enable those 
 interested in the settlement to make their objections, and the sur- 
 rogate properly to decide them. If there are debts in the course 
 of prosecution, the condition of the suits should be stated ; and in 
 like manner, if actions were pending against them to recover con- 
 tested claims, the nature of the action, and its situation, should be 
 set forth. 
 
 Subjoined to the account should be the oath in writing of the 
 executors or administrators, or of one of them, in substance, that 
 the account according to the best of their knowledge, information 
 and belief, contains a full and true account of all their receipts and 
 disbursements, on account of the estate of the testator or intestate, 
 and of all sums and property belonging to the estate which have 
 come to the hands of such executors or administrators, or which 
 have been received by any other person by their order or authority 
 for their use ; and that they do not know of any error or omission 
 in the account to the prejudice of any of the parties interested in 
 the estate of the deceased. ( Williams v. Purdy, 6 Paige, 166. 
 Kellett V. Rathbun, 4 id. 102. Gardner v. Gardner, 1 id. 112. 
 Westervelt v. Gregg, 1 Barb. Ch. R. 469. Wilcox v. Smith, 
 26 Barb. 316.) 
 
 The vouchers of the account should also be produced, regularly 
 labeled and numbered, and a schedule made of each class of dis- 
 bursements and receipts, and be accompanied with a general account 
 current. These should all remain with the surrogate and be pre- 
 served by him among the muniments of his office. The executors 
 or administrators, in addition to the general oath above mentioned, 
 may be examined on oath touching the several payments made 
 by them, and also touching any property or effects of the deceased 
 which have come to their hands, and the disposition thereof. 
 (2 R. S. 92, § 54.) They may be allowed any item of expenditure 
 not exceeding twenty dollars, for which no voucher is produced, if 
 such item be supported by their own oath positively to the fact of 
 payment, specifying when and to whom such payment was made, 
 and if such oaith be Uncontradicted ; but such allowances shall not 
 in the whole, exceed five hundred dollars for payments in behalf of 
 any one estate. {Id. § 55.) 
 
 For the property of the deceased, perished or lost without the 
 
EXEOUTOE'8 AOOOTJNT— COMPENSATION. ■ 429 
 
 feult of the executor or administrator, the latter mil be credited 
 by the surrogate. {Id. 56.) 
 
 It is a general principle in cases of this kind, and which is also 
 declared by the statute, that no profit shall be made by executors or 
 adtninistrators by the increase, nor shall they sustain any loss, 
 by the decrease, without their fault, of any part of the estate ) but 
 they shall account for such increase, and be allowed for such de- 
 crease on the settlement of their accounts. {Id. 57- Wilcosc v* 
 Smith, 26 Barb. 316.) 
 
 Previous to the act of 15th April, 1817, executors and administra- 
 tors and guardians were not entitled to any compensation for their 
 services in the discharge of their trust. By that act, the court of 
 chancery was empowered, in the settlement of the accounts of 
 guardians, executors and administrators, to make a reasonable al- 
 lowance to them for their services, over and above their expenses ; 
 and when the rate of such allowance was once settled, it was re- 
 quired to be conformed to in all cases of the settlement of such ac- 
 counts. (^McWhorter v. Benson^ Hopkins, 36.) In October, 
 1817, Chancellor Kent, by a general order, fixed the rate of com- 
 pensation which has hitherto remained. It is incorporated in the 
 revised statutes of 1830, and which as amended by the act of 1849, 
 ch. 160, is as follows : " On the settlement of the account of an 
 executor or administrator, the surrogate shall allow to him for his 
 services, and if there be more than one, shall apportion among them 
 according to the services rendered by them respectively, over and 
 above his or their expenses, 1. For receiving and paying out all sums 
 of money not exceeding one thousand dollars, at the rate of five dollars 
 per cent : 2; For receiving and paying any sums exceeding one 
 thousand dollars and not amounting to five thousand dollarSj at 
 the rate of two dollars and fifty cents per cent : 3. For all sums 
 of above five thousand dollars, at the rate of one dollar per cent , 
 and in all cases such allowance shall be made for their actual and 
 necessary expenses, as shall appear just and reasonable." (2 R. S. 
 93, § 58, as amended by ch. 160, Laws of 1849. 3 R. S. 179, 
 bth ed.) The provision for apportioning the compensation when 
 there are several, according to the services rendered by each, is 
 founded in the clearest equity. ( White v. Bullock, 20 Barb. 91. 
 Drake v. Price, 1 Seld. 430;) 
 
430 EXEOUTOR'S AOOOUNT. 
 
 If the will makes provision for a specific compensation to an ex- 
 ecutor, it must be deemed a full satisfaction for his services, in 
 lieu of the allowance aforesaid, or his share thereof; unless such 
 executor shall, by a written instrument, to be filed with the sur-^ 
 rogate, renounce all claim to the specific legacy. (2 R. S. 93, 
 § 59.) It sometimes becomes a question whether a legacy is in- 
 tended as a compensation for services, or as a gratuity beyond the 
 statute allowance. This subject was adverted to when we were 
 treating of the subject of legacies, to which the reader is referred. 
 
 It has been before stated that since the revised statutes neither 
 an executor or administrator can retain any part of the property 
 of the deceased in satisfaction of his own debt or claim, until it 
 shall have been proved to and allowed by the surrogate, and then 
 shall be entitled to no preference over other debts of the same 
 class. (2 R. S. 88, § 33.) It is in this stage of the proceedings 
 that it will be proper for the executor or administrator, who has a 
 claim in his own favor against the estate, to present it for allow- 
 ance. The revised statutes did not prescribe the time or manner 
 in which this should be done ; but by the act of 1837, chapter 460j 
 § 37, such claim was directed to be presented for allowance on the 
 service and return of a citation for that purpose directed to the 
 proper persons, or on the final account. 
 
 The account should be made out by the executor or administra- 
 tor, in the same manner as the claims of other creditors of the 
 estate, be supported by proper vouchers and verified by the oath 
 of the party claiming it. It. must be proved, also, as other ac- 
 counts are, by proper evidence, and may be resisted by those whose 
 share in the estate will be diminished by its allowance, by the stat- 
 ute of limitations, payment or any other defense which would be 
 available in the case of any other creditor. ( Williams v. Purdy, 
 6 Paige, 166. Treat v. Fortune, 2 Bradf. 116. Rogers v. 
 Rogers, 3 Wend. 503. Wilcox v. Smith, 26 Barb. 316.) 
 
 The provision in the act of 1837j supra, for issuing a citation ^o 
 the proper persons, in case the executor or administrator applies 
 to the surrogate for the allowance of the claim in his favor against 
 the estate, was introduced to regulate the remedy of the executor 
 or administrator, in cases where no final account is rendered, so 
 that it should not be asserted at an ex parte hearing before the 
 
EXECUTOR'S ACCOUNT. 431 
 
 surrogate without notice. The statute does not say upon whom 
 the citation must be served, except by the general expression, 
 "the proper persons." The "persons" here referred to are those 
 alone who would be prejudiced by the allowance of the claim ; and 
 whether they are legatees or next of kin, will depend upon the con- 
 dition of the estate. If the assets are sufiScient to pay all the debts, 
 expenses and general legacies, the residuary legatee, if there 
 be one, and if not, the next of kin, to whom the general residue be- 
 longs, are the only persons who have any interest in resisting the 
 claim, and are the persons to whom the citation should be addressed 
 in such a case. ( Treat v. Fortune, supra.) 
 
 m It is the policy of the law that all the creditors having no specific 
 lien or statutory preference should be ratably paid ; and as the 
 preference formerly obtained by a priority of suit is abolished, 
 there existed no reason for retaining the common law preference 
 of the debt of an executor or administrator. The mode of enforcing 
 the payment of claims against the estates of deceased persons hav- 
 ing been changed, and the remedy transferred from the courts 
 of common law and equity to that of the surrogate, it became neces- 
 sary that the latter court should have power to investigate and de- 
 cide on the validity of the claim belonging to an executor or ad- 
 ministrator against the estate which he represents. In an action 
 at common law, by a person interested in the estate, against an 
 executor or administrator, who interposed a plea of retainer, for 
 his own debt, it was always competent for the plaintiff to reply in 
 such manner, as to require the former to prove the debt on the 
 
 ^trial. If such debt was given in evidence under the plea of plene 
 administravit, the plaintiff might, in like manner, rebut it by show- 
 ing payment by the deceased in his lifetime, or other matter de- 
 priving the executor or administrator of a right of retainer. 
 (2 Starkie's Ev. 324.) There is nothing novel, therefore, in the 
 principle that the debt of an executor or administrator must, be- 
 fore allowance, be proved to the surrogate. The retainer by an 
 executor or administrator was never permitted, before the revised 
 statutes, unless the debt was proved on the trial to the satisfaction 
 of the court, in which the action was depending, or confessed by 
 the pleadings. {Rogers v. Rogers, supra.) In other words, the 
 executors or administrators were never authorized to decide in their 
 
432 AUDITOES. 
 
 own favor, and without appeal, how much should be allowed to 
 them on any claim they might present against the estate. The 
 parties in interest could always, by a bill in equity, at least, and 
 often in an action at law, question the validity of the claim and 
 require it to be passed upon by the appropriate tribunal. 
 
 The hearing of the allegations and proofs of the respective par^ 
 ties may be adjourned from time to time as shall be necessary. 
 (2 R. iS. 94, § 64.) The rules of evidence in such cases are those 
 which prevailed in courts of equity prior to the code of procedure ; 
 the latter system of practice for the examination of interested wit- 
 nesses and parties not applying to proceedings in surrogates' courts^ 
 {Marre v. Ginachio, 2 Bradf. 165.) The objections to an account 
 should be stated in the form of distinct and specific allegations, 
 surcharging for omissions when the estate ought to have been 
 credited, and falsifying for improper debits against the estate. 
 {Metzger v. Metzger, 1 Bradf. 265. Willard's Eq. Juris. 142.) 
 
 In this stage of the proceedings, on the rendering a final account, 
 the surrogate is empowered to appoint one or more auditors to 
 examine the accounts presented- to him, and to make a report 
 thereon, subject to his confirmation. An allowance, not exceeding 
 two dollars a day, may be made to each of them for their services, 
 to be paid out of the estate. (2 R. S. 94, § 64.) The order for 
 their appointment should be entered in the minutes. 
 
 With respect to the powers and duties of auditors, the statute 
 affords little or no light. These oiEcers are to be distinguished 
 from referees, provided for in other parts of the statute, and from 
 masters and examiners in chancery under the former practice of 
 the courts. They were probably borrowed from the practice in the 
 old action of account, without conferring upon them the power 
 which the legislature conferred upon auditors in that action. It 
 will be observed, that though the action of account was retained by 
 the revised statutes, in a modified form, the office -of auditors was 
 abolished and that of referees substituted. The action is now 
 superseded by the code of procedure. 
 
 The duties of an auditor, as far as can be gathered from the 
 statute, are to examine the voucher? and accounts rendered ; to see 
 
AUDITOR. 433 
 
 whether the same are correctly stated ; to restate the accounts, if 
 necessary ; to settle questions with regard to the computation of 
 interest, the appropriation of payments, apportionment, exonera- 
 tion, contribution, charge and discharge, legacy, satisfaction, ad- 
 vancement and such other matters as properly arise on the stating 
 of accounts in courts of equity. {See Willard's Eq. Juris, title 
 Account, passim.) He has no power to administer an oath to wit- 
 nesses, nor is he required to take an oath of office before entering 
 on the discharge of his duties. 
 
 The appointment of an auditor should not be made until all the 
 proofs have been taken in the cause, and the executor or administra- 
 tor has been examined on oath before the surrogate, if such examin- 
 ation on oath has been required. Then, the accounts, vouchers, 
 pleadings and proofs of every description may be referred to the 
 auditor to make and state the accounts. As any creditor, legatee 
 or other person interested in the estate as next of kin, or otherwise, 
 may attend the settlement of such account and contest the same 
 before the surrogate, it is presumed that they may also attend 
 before the auditor, on his examination and statement of the ac- 
 counts. It is a significant fact to show that the auditor has no 
 power to examine witnesses before him upon oath, that the 63d 
 section allows of process to compel the attendance of witnesses 
 before the surrogate on the final accounting, and the 64th section, 
 providing for the appointment, powers and duties of auditors, is , 
 silent on that subject. (iSfee on the subject of auditors, Wesier- 
 velt V. Gregg, 1 Barh. Ch. R. 469; Wilcox v. Smith, 26 Barb. 
 316 ; and Gardiner v. Gardiner, 7 Paige, 112.) 
 
 But there are numerous questions, as we have shown, of great 
 importance, which may arise on the statement of the accounts by 
 the auditor. If his duties are faithfully discharged, his report will 
 relieve the surrogate of much labor in making the final disposition 
 of the cause. It is presumed that on the coming in of the audit- 
 or's report, and before its confirmation, the parties in interest are 
 entitled to be heard before the surrogate on the question of such con- 
 firmation, and after it has been confirmed, to be heard on the form of 
 the final decree. These matters are left unprovided for by the statute, 
 55 
 
434 FINAL SETTLEMENT. 
 
 and naturally belong to the surrogate, to regulate as a matter of 
 practice, according to the equity of each case.* 
 
 Section IV. 
 
 Of the effect of the final settlement ; of the farm of the decree 
 thereon ; distribution, and the mode of enforcing it. 
 
 The statute has prescribed the effect which shall be given to a 
 final settlement before the surrogate, by declaring that it shall be 
 conclusive evidence against all creditors, legatees, next of kin of 
 the deceased, and all persons in any vray interested in the estate, 
 upon whom the citation shall have been served, either personally, 
 or by publication as therein directed, of the following facts, and of 
 no others : 
 
 1. That the charges made in such account for moneys paid to 
 creditors, to legatees, to the next of kin and for necessary expenses, 
 are correct : 
 
 2. That such executor or administrator has been charged all the 
 interest for moneys received by him, and embraced in his account, 
 for which he was legally accountable : 
 
 3. That the moneys stated in such account as collected, were all 
 
 * The 6th chapter of Part II of the revised statutes, as reported by the revisers, 
 contemplated the rendering of a final account in all cases. In passing through the 
 legisl9,ture it was so modified as to leave It optional with the executors or admin- 
 istrators to render such account or not. They were left liable, however, to be 
 called on, by any person interested, to render an account. The 33d section (being 
 the 30th section in the report) giving no preference to the claims of executors or 
 administrators, and taking away the right of retainer of any thing except what was 
 proved to and allowed by the surrogate, was a necessary part of the system. The 
 debt due to an executor or administrator was thus put on a footing with the other 
 debts ; and as the other creditors could not cite the executors or administrators to 
 account till after eighteen months, so the executors or administrators could not cite 
 the persons interested to attend the settlement of his accounts till after eighteen 
 months from the date of his letters. This section was left unaltered, and, therefore, 
 applied only to the case of rendering a final account. And this made it advisable, 
 in 1837, to adopt the 37th section of the act of that year, chapter 460, to enable the 
 executor or administrator, in case he did not wish a final accounting, or for any 
 reason desired to have his own claim against the estate allowed, at an earlier day, 
 to cite the persons interested before the surrogate, for the purpose of having his 
 claim examined and allowed. 
 
FINAL SETTLEMENT— TRUSTS. 435 
 
 that were collectable, on the debts stated in such account, at the 
 time of the settlement thereof: 
 
 4. That the allowance, in such account, for the decrease in the 
 value of any assets, and the charges therein for the increase in 
 such value, were correctly made. 
 
 The revised statutes as originally enacted, provided that the 
 preceding section should not extend to any case where an executor 
 is liable to account to a court of equity, by reason of any trust, 
 expressly created by any last will and testament. (2 R. iS. 94, 
 § 66.) But under that section the chancellor held in Stagg v. 
 Jackson, 2 Barb. Ch. R. 86, decided in January, 1847, and 
 affirmed by the court of appeals, 1 Comstock, 206, that where a will 
 directs real and personal estate to be sold by the executors, and 
 makes but one fund of the real and personal estate of the testator, 
 for the purposes of the will, the surrogate had jurisdiction to call 
 the executors to account for the proceeds of the real estate, and for 
 the rents and profits thereof received by him previous to such sale, 
 under and by virtue of the power in the will. Upon the doctrine 
 of equitable conversion, the proceeds of the real estate become 
 legal assets in the hands of the executor, for which he is bound to 
 account as personal estate. 
 
 But notwithstanding that decision, there were Still numerous 
 cases of trusts over which the surrogate had no jurisdiction ; and 
 for which he could not cite the executors to account, or settle their 
 accounts if voluntarily submitted to his jurisdiction. To remedy 
 this defect, the 66th section was so changed by the act of 1850, 
 ch. 272, (3 R. S. 181, 5th ed.) that any trustee created by any 
 last will or testament, or appointed by any competent authority to 
 execute any trust created by any such last will or testament, or 
 any executor or administrator with the will annexed, authorized to 
 execute any such trust, may from time to time render and finally 
 settle his accounts before the surrogate in the manner provided by 
 law for the final settlement of accounts of executors or administra- 
 tors, and may, for that purpose, obtain and serve, in the same 
 manner, the necessary citations requiring all persons interested to 
 attend such final settlement, and the decree of the surrogate on 
 such final settlement is made subject to appeal in the manner pro- 
 vided for an appeal from a decree of a surrogate on the final set- 
 
436 FINAL DECREE. 
 
 tlement of the accounts of executors and administrators, and the 
 like proceedings are to be had on such appeal. The final decree 
 of the surrogate on the final settlement of an account provided for 
 in this section as amended, or the final determination of the ap- 
 pellate tribunal, in case of an appeal, are declared to have the same 
 effect as the decree or judgment of any other court of competent 
 jurisdiction, on the final settlement of such accounts and of the 
 matters relating to such trust, which shall have been embraced in 
 such accounts or litigated or determined on such settlement 
 thereof. 
 
 This provision operates greatly to enlarge the jurisdiction of 
 the surrogate in cases where the executor, or testamentary trus- 
 tee, elects to submit himself voluntarily to the jurisdiction of the 
 surrogate ; which he may do when cited to account, or, volunta- 
 rily, after the expiration of eighteen months, as will be shown 
 more at large in the next section. But, it is believed, he cannot 
 be compelled, to render such account, except in cases where there 
 has been an equitable conversion of the real and personal estate 
 into one fund, as in Stagg v. Jackson, and kindred cases. 
 
 Whenever an account is rendered and finally settled, except 
 when an executor or administrator accounts to his successor in the 
 administration, if it appears to the surrogate that any part of the 
 estate remains to be paid or distributed, he should make a decree 
 for the payment and distribution of what shall so remain, to and 
 among the creditors, legatees, widow and next of kin to the de- 
 ceased, according to their respective rights ; and in such decree 
 settle and. determine all questions concerning any debt, claim, 
 legacy, bequest, or distributive share ; to whom the same shall be 
 payable ; and the sum to be paid to each person. (2 R. S. 95, 
 § 71. Bank of Poughkeepsie v. Hasbrouck, 2 Seld. 216. Camp- 
 bell V. Bruen, 1 Bradf. 224.) 
 
 As choses in action are not deemed assets until reduced to 
 possession, and as the statute contemplates a speedy settlement 
 of the estate, it was obviously necessary that provision should be 
 made for the transfer of securities belonging to the estate, as well 
 as for the indemnity of the executor or administrator against 
 claims not due, or for which a suit is depending. Accordingly it 
 is enacted that in the order for final settlement and distribution, the 
 
FINAL LEGACIES. 437 
 
 surrogate may, upon the consent in writing of the parties who 
 shall have appeared, direct the delivery of any personal property 
 which shall not have been sold, and the assignment of any mort- 
 gages, bonds, notes, or other demands not yet due, among those 
 entitled to payment or distribution, in lieu of so much money as 
 such property or securities may be worth, to be ascertained by 
 the appraisement and oath of such persons as the surrogate shall 
 appoint for that purpose. (2 R. S. 95, § 72.) 
 
 Subsequent sections of the statute empower the assignee of such 
 securities to sue and recover upon the same, at his own costs and 
 charges, in the name of the executor or administrator making such 
 assignment or otherwise, in the same manner as such executor or 
 administrator might have done. Under the code of procedure it 
 is presumed the action may be brought in the name of the person 
 to whom the assignment was made, he being the real party in 
 interest. {Code, §§ 111 to 113.) 
 
 It may happen that at the making of the final decree, there are 
 claims existing against the estate of the deceased which are not 
 due, or upon which a suit is then pending. In such a case the 
 surrogate should, upon the representation of the executors or 
 administrators, allow a sum sufficient to satisfy such claim, or the 
 proportion to which it may be entitled, to be f etained for the pur- 
 pose of being applied to the payment of such claim when due, or 
 when recovered, or of being distributed according to law. The 
 sum so retained may be left in the hands of the executor or ad- 
 .ministrator, or may be directed by the surrogate to be deposited 
 in some safe bank, to be drawn only on the order of the surrogate. 
 (2 R. S. 96, § 74.) 
 
 This representation of the executor or administrator should be 
 in writing. The most eligible mode of presenting the subject for 
 the action of the surrogate is by petition, duly verified by affida- 
 vit. The order consequent thereon should be embraced in the 
 final decree. 
 
 The statute does not contemplate any enrollment of the final 
 decree. It is merely required to be entered at large in the book 
 of minutes. It thus becomes a record, and may be exemplified 
 under the seal of the court, if it is required to be used as evidence 
 in any other court. (2 R. S. 222.) 
 
438 ENFOKOIKG FIKAL DEOEEE. 
 
 If the decree be against the executor or administrator, requiring 
 him to pay money, it may be docketed in the office of the clerk of the 
 county court, and in New York in the office of the clerk of the court 
 of common pleas, and thenceforth be a lien on all the lands, tenements 
 and real estate of every person against whom it is entered, and execu- 
 tion may be issued thereon in the same manner as though the 
 same was a judgment obtained in said court. (^Laws of 1837, 
 ch. 460, §§ 63, 64. Laws of 1844, p. 91, amending same. 3 R. 
 S. 366, 5th ed.) The form of a final decree should be similar to 
 a final decree in the late court of chancery, in similar cases. It 
 should recite enough of the proceedings to give a full understand- 
 ing of the matters in controversy, and should be so framed as to 
 settle and determine all questions concerning any debt, claim, 
 legacy, bequest, or distributive share ; to whom payable, and the 
 amount to be paid to each person. (2 R. S. 95, § 71. Campbell 
 V. Bruen, 1 Bradf. 224.) 
 
 The principles on which distribution is to be made, and the order 
 of paying debts, have already been discussed. In like manner we 
 have also treated of the various expenses attending the administra- 
 tion of the estate^ and the allowances to be made to the executor 
 or administrator. It is not necessary, under the existing law, tO' 
 record at length the accounts settled and allowed ; but they are to 
 be filed with the surrogate, and he is required to record, with his 
 decree, a summary statement of the accounts as the same shall be 
 finally settled and allowed by him ; and which statement shall be 
 referred to and taken as part of the final decree. {L. of 1837, ch. 
 460, § 2. 3/2. iS". 365, 5th ed.) 
 
 There are, in general, three modes of enforcing the performance 
 of a final decree. 1. If it be for the payment of money, the filing and 
 docketing of the decree in the clerk's office and the issuing of an exe- 
 cution thereon out of the county court, or in New York out of the 
 court of common pleas, as has been above stated, will afford a 
 speedy and effectual remedy, and the one first to be resorted to. 
 {See ante. Doran v. Dempsey, 1 Bradf. 490.) 2. Obedience 
 to a final decree may also be enforced by a prosecution, under the 
 direction of the surrogate, of the bond of the executor or adminis- 
 trator. The money collected on the bond must be applied in satis- 
 
ENTOROING FINAL DEGREE. 439 
 
 faction of the decree, in the same manner as it ought to have been 
 applied by the executor or administrator. The like remedy is also 
 extended to a decree for rendering an account, or for the payment 
 of a debt, legacy or distributive share. (£,. of 18S0, ch. 320, § 23. 
 3 R. S. 204, 5th ed.) If the decree be for the payment of a sum 
 of money by one party to another, an action of debt ■will lie there- 
 for, whether such sum was for a legacy or a debt. {Dubois v. 
 Dubois, 6 Cowen, 494.) 3. By attachment against the person of 
 the executor or administrator who neglects or refuses to comply 
 with the decree. (2 R. S. 222, § 6,- sub. 4. Doran v. Dempsey, 
 supra. Seaman v. Duryea, 1 Kern. 324.) This attachment is 
 required to be in form similar to that used by the late court of 
 chancery in analogous cases. {Id.) 
 
 Although the court of chancery was abolished by the constitu- 
 tion of 1846, and its jurisdiction vested in other tribunals, yet, as 
 the practice of that court in proceeding, by attachment, to enforce 
 civil remedies was made applicable to surrogates' courts, and the 
 practice of these courts has been left unaffected by the code, it be- 
 comes necessary to refer briefly to the practice, in this respect, of 
 the court of chancery in 1830, and, indeed, into its practice ante- 
 rior to the present constitution. 
 
 In the case of The Albany City Bank v. Schermerhorn, 
 (9 Paige, 874,) the chancellor observed that the statute relative 
 to proceedings as for contempt to enforce civil remedies and to 
 protect the rights of parties in civil actions, has prescribed two 
 modes of proceeding, where the misconduct complained of is not 
 committed in the immediate view and presence of the court ; one 
 of which is by an order on the accused party to show cause, at 
 some future time, to be specified in the order, why he should not 
 be punished for his alleged misconduct ; and the other is to grant 
 an attachment to arrest the accused and bring him before the court 
 to answer for the misconduct. (2 R. S. 535, § 5.) In either mode 
 of proceeding, however, the party complaining of the alleged mis- 
 conduct, must produce proof thereof, by affidavit or a sworn peti- 
 tion or other legal evidence, as the foundation of the proceedings. 
 It must thus be shown that a certified copy of the decree has been 
 served on the executor or administrator, that he was requested to 
 comply with it, and that he had neglected or refused to do so. An 
 
440 FINAL ACCOUNTS. 
 
 attachment may thereupon be issued, an order for that purpose 
 having been first entered. 
 
 This branch of the proceedings will generally be conducted by 
 professional gentlemen, and the mode of practice will be found in 
 books devoted to the practice of the court of chancery, and is fully 
 detailed in the statute and by the chancellor on several occasions. 
 (2 R. S. 222. Id. 534 to 540. The Albany City Bank v. Scher- 
 merhorn, supra. The People v. Rogers, 2 Paige, 104.) It is 
 not deemed expedient to detail more at length, in this work, the 
 course of a proceeding which will be found described fully by Mr. 
 Barbour, in his practice of the court of chancery. (App. 75 to 83.) 
 
 Section V. 
 
 Of rendering an account by an executor or administrator in 
 other cases, and of costs. 
 
 We have hitherto treated only of the rendering an account for a 
 final settlement when the executor or administrator, upon being 
 required by the surrogate to account, desires to have the same 
 finally settled. (2 R. S. 93, § 60.) But there is another pro- 
 ceeding in which the executor or administrator is voluntary, and 
 which leads to the same result. By the 70th section (2 R. S. 95) 
 it is enacted that after the expiration of eighteen months from the 
 granting of letters testamentary, or of administration, an executor 
 or administrator may render a final account of all his proceedings 
 to the surrogate who appointed him, although not cited to do so. 
 To render this account final and conclusive, a citation must be 
 obtained from the surrogate to all persons interested in the estate 
 of the deceased, to attend the final settlement of the accounts of 
 the executor or administrator. This citation must be served in 
 the same manner and the same proceedings must be had for a 
 final settlement, and with the like efi'ect in all respects as in the 
 case of a settlement, at the instance of a creditor, legatee, or next 
 of kin. These proceedings have already been described in the 
 preceding section of this work. 
 
 The final decree operates as a discharge to any other or further 
 accounting by the executor or administrator as to the matters 
 embraced in the account settled. In this respect it is as conclu- 
 
GENERAL ACCOUNT. 441 
 
 sive as the decree of the court of chancery on a bill to account. 
 It is, indeed, a substitute for the quietus formerly granted by the 
 court of probates. It is a cheap and expeditious mode of settling 
 an estate, without resorting to a bill in equity. 
 
 An executor or administrator did not render an account in the 
 spiritual court unless cited to do so by some person having an 
 interest in the estate. (2 Wms. Ex. 1776. IBurris E. L., 
 quarto ed. 765.) Th6 provision of our statute which permits such 
 an account to be rendered and finally settled, on the application 
 of the executor or administrator alone, is an obvious improvement. 
 
 In the ecclesiastical courts, where the ordinary found the ac- 
 count to be true and perfect, he pronounced for its validity ; and 
 the executor or administrator was thereafter acquitted and dis- 
 charged from further molestation and suits, and was not liable to 
 be again called to an account. The statute of 1 Ed. 6, c. 2, pro- 
 vided that all acquittances of and from all accounts made by 
 executors, administrators or collectors of goods of any dead man 
 should be made in the name of the king, as in writs original or 
 judicial at common law. (2 Burn's E. L., quarto ed. 766.) 
 Under our statute, a copy of the final decree in account seems to 
 be all that is required by the executor or administrator, as the 
 evidence of his discharge. 
 
 The liability to account, and the right to cite all persons inter- 
 ested in the estate to attend the settlement thereof, have been 
 extended to an executor or administrator, whose authority has 
 been revoked or superseded. Thus, it is enacted that whenever 
 the authority of an executor or administrator shall cease, or be 
 revoked or superseded, for any reason, he may be cited to account 
 before a surrogate, at the instance of the person succeeding to the 
 administration of the same estate, in like manner as before pro- 
 vided for a creditor. (2 R. S. 95, § 68.) And in every such case 
 the following section enacts, that the executor or administrator 
 may cite the person succeeding to the administration of the same 
 estate, to attend an account and settlement of his proceedings, 
 before the surrogate, by giving such reasonable notice as the sur- 
 rogate shall direct, and by serving and publishing in the manner 
 herein before provided, a citation to creditors and others ; and 
 56 
 
442 COSTS— SUEEOGATES' FEES. 
 
 such settlement and account it is declared shall have the like 
 effect in all respects as in the case of a settlement at the instance 
 of a creditor. 
 
 In the ecclesiastical courts costs are given in matters of ac- 
 count, both in original suits and on appeal. This practice, it 
 seems, did not prevail here before the revised statutes in 1830. In 
 Reed v. Yanderheyden, 5 Cowen, 719, it seems to have been 
 taken for granted by the members of the court of errors, that the 
 surrogate had no authority, at that early day, to award costs. 
 Shultz V. Pulver, 3 Paige, 185. Western v. Rom,aine, 1 Bradf. 
 37. Burtis V. Dodge, 1 Barb. Ch. R. 91.) 
 
 This defect is now removed by the revised statutes, which pro- 
 vide, that in all cases of contests before a surrogate's court, such 
 court may award costs to the party in the judgment of the court 
 entitled thereto, to be paid either by the other party personally, 
 or out of the estate which shall be the subject of such controversy. 
 (2 R. S. 223, § 10.) The act of 1837, ch. 460, § 70, provided 
 that when costs are allowable, they shall be taxed according to the 
 same rate allowed for similar services in the courts of common pleas. 
 Although those courts have since been abolished by the constitu- 
 tion of 1846, and various changes have been made in the fee bill 
 since that time, it is believed that the fee bill existing when the 
 act of 1837, ch. 460, took effect, is still to govern the rate of com- 
 pensation in cases of this kind. 
 
 The principles on which costs are to be allowed or refused in 
 controversies before the surrogate, are analogous to those which 
 guided the discretion of the chancellor in litigation in the old 
 court of chancery. The same rules prevail now in the supreme 
 court, in those cases where costs are left by the code to the dis- 
 cretion of the court. 
 
 The fees of the surrogate for services done and performed are 
 prescribed by the statute of May 7, 1844. {Ch. 300, § 2. Z R. S. 
 919 to 922.) Of these an account is kept by the surrogate in the 
 book of fees, which is required to be open at all reasonable times 
 for inspection, like his other books of record. {L. of 1837, ch. 
 
GUARDIAN AND WARD. 443 
 
 460, § 3.) As the surrogate is now paid by a salary, and is re- 
 quired to account for the fees and perquisites received by him, 
 with the financial officer of the county, there is no temptation to 
 multiply charges unnecessarily. 
 
 CHAPTER VI. 
 
 OF GUARDIAN AND WARD. 
 
 Among the subjects over which the surrogate's court has juris- 
 diction, is that of the appointment of guardians for minors, the re- 
 moval of them, the direction and control of their conduct, and the 
 settlement of their accounts. (2 R. iS. 220, § 1, sub. 7.) The 
 jurisdiction of the surrogate is not exclusive in these matters, but 
 is nearly concurrent with that of the supreme court ; which latter 
 has succeeded to the jurisdiction of the late court of chancery. It 
 is supposed that the jurisdiction of the surrogate, in this respect, 
 falls short of that of the supreme court. 
 
 Section I. 
 Of the different kinds of guardians; their powers and duties. 
 
 There are two kinds of guardianship ; one by the common law 
 and the other by the statute. (2 Kent's Com. 218.) 
 
 At common law there were three kinds of guardians, namely, 
 guardian by nature, guardian by nurture, and guardian in socage. 
 
 Guardian by nature is the father, and on his death, the' mother. 
 It terminates when the child arrives at the age of twenty-one 
 years. 
 
 This guardianship extends only to the person of the child. 
 Neither the faither or mother, as guardian by nature, has any con- 
 trol over the property, real or personal, of the child. {Fonda v. 
 Van Home, 15 Wend. 631. Genet v. Talmadge, 1 John. Ch. 8. 
 Id. 561. Hyde v. Stone, 1 Wend. 354.) Nor has he any right, 
 as such guardian, to receive the rents and profits of the infant's 
 land. {Jackson v. Comhs, 7 Cowen, 36, S. C. 2 Wend. 153.) 
 
444 GUARDIAN AND WAED. 
 
 Under the operation of our laws making all the children equally 
 heirs, the guardianship hy nature would seem to extend to all the 
 children, and not he confined, as at common law, to the heir appa- 
 rent, or eldest son. 
 
 Guardian by nurture occurs only when the infant is without 
 any other guardian, and belongs exclusively to the parents, first to 
 to the father and then to the mother. (2 Kents Com. 221.) 
 Originally it applied only to the younger children who were not 
 heirs apparent. With us it has become obsolete. Being concur- 
 rent with guardianship by nature, there is no reason for retaining 
 it as a separate institution. It never gave the guardian any right 
 to control the property of the child, and it ended when the child 
 arrived at the age of fourteen years, in both males and females. 
 
 Guardian in socage had, at common law, the custody of the land, 
 and was entitled to the profits, for the benefit of the heirs. He 
 might lease the land, avow or bring trespass, in his own name. 
 This guardianship ceased when the infant arrived ait the age of 
 fourteen years, unless no other guardian was appointed, when it 
 continued until the infant arrived at mature age. {Byrne v. Van 
 Hoesen, 5 John. 66. Field v. Schieffelin, 7 John. Ch. 150. 
 Holmes v. Seeley, 17 Wend. 75.) On the death of the father, 
 the mother succeeded as such guardian, and could, in that charac- 
 ter, enter on the lands of the heir. {Jackson v. De Walts, 
 7 John. 157.) 
 
 Under the operation of our laws of descent, which allow both 
 the father and mother, in certain contingencies, to inherit from the 
 child, this species of guardianship has disappeared. At common 
 law, this guardianship belonged only to such blood relation of the 
 infant as could not by possibility inherit from him. Such case 
 can rarely occur. 
 
 The revised statutes, however, have provided ,a substitute for 
 this guardianship. Thus, by the act concerning tenures, (1 R. S. 
 718, § 5,) it is enacted, that where an estate in lands shall become 
 vested in an infant, the guardianship of such infant, with the rights, 
 powers and duties of a guardian in socage, shall belong, 1. To 
 the father of the infant : 2. If there be no father, to the mother : 
 3. If there be no father or mother, to the nearest and eldest rela- 
 
TESTAMENTARY GUAEDIAN. 445 
 
 tive of full age, not being under any legal incapacity ; and as be- 
 tween relatives of the same degree of consanguinity, males shall 
 be preferred to females. To every such guardian, all statutory 
 provisions that are or shall be in force, relative to guardians in 
 socage, shall be deemed to apply^ The rights and authority of 
 every such guardian shall be superseded in all cases where a tes- 
 tamentary or other guardian shall have been appointed under the 
 provisions of the third title of the eighth chapter of part second of 
 the revised statutes. 
 
 This species of guardianship extends not only to the person, and 
 all the real estate, even to hereditaments, which do not lie in tenure, 
 but to the personal estate also. The title, however, to this guar- 
 dianship, cannot accrue unless the infant be seised of lands. 
 
 In addition to the foregoing, there are the following species of 
 guardianship : 1. Testamentary guardians. These are founded 
 on the deed or last will of the father, and they supersede the claims 
 of any other guardian, and extend to the person and real and per- 
 sonal estate of the child, and continue until the child arrives at 
 the age of twenty-one years, if so expressed in the grant. This 
 power, it is said, was first given by the statute of 12 Charles 2d, 
 and it has been extensively adopted in this country. The same 
 power is given, and its effects are declared, by the New York re- 
 vised statutes. {2d vol. 150.) Thus, it is enacted that ev^ry father, 
 whether of full age or a minor, of a child likely to be born, or of a 
 living child, under the age of twenty-one years, and unmarried, 
 may, by his deed or last will, duly executed, dispose of the custody 
 and tuition of such child, during its minority, or for any less time, 
 to any person or persons in possession or remainder. Every such 
 disposition, from 1;he time it takes effect, vests in the person or 
 persons, to whom it is made, all the rights and powers, and subjects 
 him or them to all the duties and obligations of a guardian of such 
 minor, and is valid and effectual against every other person, claim- 
 ing the custody or tuition of such minor, as guardian in socage, or 
 otherwise. The guardian so appointed has power, by law, to take 
 the custody and tuition of the said minor, to maintain all proper 
 actions for the wrongful taking or detention of the minor, and to 
 recover damages in such actions for the benefit of his ward. It is 
 
446 GUARDIAN AND WARD. 
 
 his duty also to take the custody and management of the personal 
 estate of the minor, and the profits of his real estate, during the 
 time for which such disposition shall be made, and he may bring such 
 actions, in relation thereto, as a guardian in socage might by law. 
 
 The father and not the mother has the power of appointing a 
 guardian, {Matter of Pierce, 12 How. 532 ;) but even he does npt 
 possess the power, if the child, though a minor, be married. The 
 guardianship of his infant wife belongs to the husband. {Kettletas 
 V. Gardner, 1 Paige, 488.) A female ward of the court is not 
 discharged, upon her marriage, from the protection of the court, 
 without a special order. {Matter of Whittaker, 4 J. Ch. R. 378.) 
 
 The father may limit the appointment for a less time than dur- 
 ing minority ; he may confer the guardianship on one or more per- 
 sons ; and, of course, he may grant the guardianship of the person 
 to one person, and of the estate to another. 
 
 2. Chancery guardians, or such as are now appointed by the 
 supreme court, under the power formerly possessed by the court of 
 chancery, are either general or special. The chancery guardian 
 continues until the majority of the infant, and is not controled by 
 the election of the infant when he arrives at the age of fourteen. 
 {Matter of Nicoll, 1 J. Ch. R. 25.) The court of chancery has a 
 general control over all guardians by whomsoever appointed ; and 
 the authority to call them to account, and of displacing them. 
 {Matter of Andrews, 1 J. Ch. R. 99. Ex parte Crumb, 2 id. 439.) 
 The supreme court, by virtue of its jurisdiction as a court of equity 
 over persons laboring under disability, can take the custody of an 
 infant from the control of its father, and give it to the mother. 
 ( The People v. Mercein, 8 Paige, 47. S. C. 25 Wend. 64. The 
 People V. Chegaray, 18 Wend. 637.) As this court can take the 
 custody of an infant from the parents, so it can appoint a guardian 
 for an infant, during the lifetime of the father or mother, and with- 
 out their consent. 
 
 3. Guardians appointed by the surrogates of the different counties 
 of the state. According to Swinburne^ page 216, Reeve^s Dom, 
 Rel. 317, the spiritual court originally possessed the power of ap- 
 pointing guardians for minors in relation to the personal estate. 
 This jurisdiction was not conferred on the surrogates' courts in this 
 
APPOINTMENT OF GUARDIAN. 447 
 
 state until the year 1802, (25 Sess. Laws, ch- 110,) and it then 
 extended only to the power of appointment, and conferred no 
 authority over them as trustees ; or jurisdiction to remove them, or 
 call them to account. {In the matter of Andrews, 1 J. Ch. R. 99. 
 Ex parte Crumb, 2 id. 439.) 
 
 By the existing statute it is enacted that the surrogate, when 
 no guardian shall have heen appointed by the father of the minor, 
 by deed or will, shall have the same power to allow and appoint 
 guardians for minors whose place of residence is in the county of 
 the surrogate, as is possessed by the supreme court. (2 R. S. 
 151, § 6. 3 i?. & 244, 5th ed. as altered.) This is to be under- 
 stood with some qualification. The surrogate cannot appoint a 
 guardian for an infant over fourteen years of age, against the con- 
 sent of the infant. He can, in such a case, .merely allow a 
 guardian nominated by the infant. (Sherman v. Ballou, 8 Coicen, 
 304.) The appointment of a guardian by the surrogate for an in- 
 fant under fourteen terminates at that age, if the infant on becom- 
 ing fourteen, chooses a different person, and his choice is allowed 
 by the surrogate. The present supreme court succeeding to the 
 jurisdiction of the late court of chancery, are not thus restricted. 
 They can appoint a guardian contrary to the nomination of the 
 infant. Again, the surrogate cannot appoint a guardian for an 
 infant whose father is living. This is fairly implied, from the 
 power to appoint being given to the surrogate only on the failure 
 of the father to make a testamentary appointment ; an event 
 which cannot be known until his death.* {Foster v. Mqtt, 
 8 Bradf. 412.) 
 
 * The only reported case to the contrary which has fallen under my observation, 
 is a dictum of Welles, J. in Clark v. Montgomery, 23 Barhour, 472. In the course 
 of his opinion, the learned judge says : " It is unusual for the surrogate to appoint 
 a general guardian for an infant having a father, yet it may be, and sometimes is 
 done ; and then the guardian suceeeds to the rights and duties of the father, sub- 
 ject to the authority and discretion of a court of equity." It was not the direct 
 point In the case, nor does it appear to have been discussed by counsel, or to have 
 been passed upon by the associates of the learned judge. No case is referred to as 
 authority. Though the dictum is entitled to great respect from its source, it is 
 believed to be incorrect. It is not denied that the supreme court, succeeding to 
 the authority of the late court of chancery, has the power to take the guardianship 
 of fnfents from the parents, against their consent. But the surrogate has not yet 
 
4,48 DUTY OF GUARDIAN. 
 
 Every guardian so appointed by the surrogate, possesses the 
 same power as a testamentary guardian. He may be cited to ac- 
 count before the surrogate ; and he may be removed from his trust 
 by the surrogate for incompetency, or for Wasting the real or per- 
 sonal estate of his ward, or for any misconduct in relation to his 
 duties as guardian. (2 R. iS. 152, §§ 14, 15, 16.) 
 
 As the same power " to allow and appoint guardians " is, by the 
 statute, conferred on the surrogate that is possessed by the su- 
 preme court, as successors of the court of chancery, it would seem 
 that the guardianship of the person may be granted to one, and 
 that of the estate to another person. This was often done by the 
 late court of chancery. In such a case the statute is complied 
 with, if security be taken only from the guardian of the estate, as 
 was done in similar cases by the court of chancery. (2 Kent's 
 Com. 227.) And the surrogate has, doubtless, the same jurisdic- 
 tion where the estate of the infant is very extensive, to allow of 
 security in a fair sum only, as was done by the court of chancery 
 in such cases. {In matter of Hedges, 1 ed. Ch. R. 57. In the 
 matter of Frits, 2 Paige, 374.) We have seen, in a previous 
 chapter, that the surrogate may, in certain cases, appoint the New 
 York Life and Trust Company guardian of the estate of infants 
 without exacting security. In such a case the guardian of the 
 person will be a different person, with such power over the estate 
 as the surrogate may give in the letters of guardianship ; and the 
 security to be exacted from him should be measured with refer- 
 ence to the estate of the infant put under his control, rather than 
 by the entire estate of the infant. 
 
 With regard to the duties as well of a guardian in socage, as of 
 every other guardian, whether testamentary or appointed, the stat- 
 ute has well summed them up, by declaring that he shall safely keep 
 the things that he may have in his custody belonging to his ward, 
 and not make or suffer any waste, sale or destruction of such 
 things or of such inheritance, but shall keep up and sustain the 
 houses, gardens and other apurtenances to the lands of his ward, 
 
 been clothed with that jurisdiction ; which he must have, if he can allow an infant 
 of fourteen to ignore the control of his father, or appoint a guardian for one still 
 younger, against the remonstrances of a living father. 
 
DUTIES OF GUAKDIAN. 449 
 
 by and with the issues and profits thereof, and with such other 
 moneys belonging to his ward, as shall be in his hands, and shall 
 deliver the same to his ward, when he comes to his full age, in as 
 good order and condition, at least, as such guardian received the 
 same, inevitable decay and injury only excepted ; and he shall an- 
 swer to his ward for the issues and profits of real estate received 
 by him, by a lawful account. (2 R. S. 153, § 20.) 
 
 The general principles which regulate the rights and duties of 
 guardians form an important part of our equity jurisprudence. 
 They have frequently been discussed at the bar, and expounded 
 from the bench. We have room only to state a few of these prin- 
 ciples with a reference to the adjudged cases. The guardian can- 
 not tra,de with himself, on account of his ward, nor buy or use his 
 ward's property for his own benefit. All advantageous bargains 
 which he makes with the ward's funds, enure to the benefit of the 
 ward at his election. He cannot convert the personal property of 
 his ward into real estate, or buy land with the ward's money. If 
 he does so, his ward, when he comes of age, will be entitled, at his 
 election, to take the land or the money, with interest. ( White v. 
 Parker, 8 Barb. iS. C, R. 48. Reeve's Dom. Rel. 325 et seq.) 
 
 The policy of the doctrine that the guardian cannot, without the 
 intervention of a court of equity, change the property of the ward, 
 from real to personal, and vice versa, is ably questioned by the 
 late Chief Justice Reeve, {Reeve's Dom. Rel. 334 ;) and he shows 
 that some of the reasons on which it is founded do not exist in 
 this country. It is, however, a well settled principle in our juris- 
 prudence. ( White v. Parker, supra. Genet v. Talmadge, 
 1 J. Ch. R. 561. Field v. Schieffelin, 7 id. 154.) The statute 
 {first enacted in 1814, ch. 108,) authorizing the chancellor, on a 
 proper application, to direct the sale of the whole or a part of the 
 real estate of infants for their maintenance and education, and 
 which has since been enlarged and regulated, (2 R. S. 194. 
 3 id. 274, 5th ed.) is founded on the theory, that without legisla- 
 tive interference the guardian could not, at common law, sell the 
 lands of his ward. It is well known, that prior to 1814, there 
 were annually numerous applications to the legislature on this 
 subject, and special acts were occasionally enacted, authorizingjthe 
 sale of the real estates of infants. The general law has superseded 
 S7 
 
450 DUTIES OF GUARDIAN. 
 
 the necessity of such special legislation ; and that was in part its 
 object. 
 
 Although plausible reasons may be given for extending to the 
 guardian the same power of disposition over the real as the per- 
 sonal estate of his ward, yet it is for the legislature and not the 
 courts to make the innovation. The change of the infant's prop- 
 erty from real to personal, and vice versa, interferes with his 
 power to dispose of it by will. By the existing law, males at 
 eighteen and females at sixteen may bequeath personal property ; 
 but neither can devise real estate, till they attain the age of 
 twenty-one years. 
 
 A guardian may, however, sell the personal property of his 
 ward for the purpose of the trust, without the order of the court ; 
 and a bona fde purchaser is not answerable for the application 
 of the money {Field v. Schieffelin, 7 J. Ch. R. 154.) 
 
 But this right should be exercised for the benefit of the infant. 
 He may lease the ward's land during his minority, and no longer. 
 {Pond V. Curtis, 1 Wend. 45.) He should keep the moneys of 
 his ward productive, and apply the interest only, if sufficient, to 
 his maintenance and the proper expenditures of the trust. {De 
 Peyster v. Clarkson, 2 Wend. 77. Hopkins, 424.) He should 
 not support his ward in idleness, when he is capable of earning his 
 own living. {Clark v. Clark, 8 Paige, 153.) But the means 
 of support furnished him while he is obtaining his education, and 
 preparing himself for future usefulness, are a proper allowance to 
 the guardian as necessaries. {Id.) 
 
 The right of the guardian to dispose of the personal property of 
 the ward is essential to the due execution of the trust. Without 
 this power he could not make unproductive property yield a 
 revenue. It is sometimes necessary to call in outstanding debts 
 and to reinvest them. In this as well as in the sale of the per- 
 sonal property of the ward, due regard should be had to the char- 
 acter of the estate, the social position of the ward, his age, and the 
 nature and condition of his real estate, and his probable future oc- 
 cupation. It is not usual to sell family pictures, plate, watches, 
 ornaments, &c.,but to keep them (as they are not perishable in their 
 nature) as memorials of their former proprietors. Should the 
 ward be an heir to a well stocked farm and nearly of age, the 
 
COMMISSIONS OF GUAEDIANS. 451 
 
 guardian would be justified in not selling this stock. {Reeve^s 
 Dom. Eel. 326.) 
 
 If the guardian omits to keep the money of his ward invested, 
 or mixes it with his own, he is chargeable with simple interest, on 
 the funds in his hands uninvested ; and in gross cases of delin- 
 quency, with compound interest. {De Peyster v. Clarkson, 
 supra.) 
 
 Most of the charges against executors and administrators are 
 applicable to guardians ; as both, indeed, act in a fiduciary capa- 
 city. A guardian is allowed his reasonable expenses, and the 
 same rate of compensation for his services, as is provided by law 
 for executors and administrators. (2 R. S. 153, § 22.) He is 
 not entitled to commissions on investing, or receiving and rein- 
 vesting the funds of his ward, for the purpose of raising an in- 
 come ; but only upon the interest received and paid out by him. 
 He is allowed half commissions for receiving and half for paying 
 out the trust money ; and when he only receives, or only pays out, 
 he cannot charge for both. {Matter of Kellogg, 7 Paige, 265.) 
 
 The guardian has power to receive a legacy bequeathed to his 
 ward, if above fifty dollars, under the direction of the surrogate, 
 on giving such security as shall be required. His discharge of 
 the same, on its being paid to him, in that character, will be a 
 good voucher to the executor. He may, indeed, receive any 
 money due to his ward, including legacies of any amount. He 
 may submit to arbitration in behalf of his ward. ( Weed v> Ellis, 
 8 Caines' Rep^ 253.) He may in some cases purchase teal estate 
 at public sale for the benefit of his ward, (2 R. S. 105, § 27 ;) as 
 where land is sold under an order of the surrogate; but he cannot 
 in such cases purchase for his own benefit. 
 
 A guardian has a power, coupled with an interest, and, there- 
 fore, if three persons be appointed guardians, and one dies, the 
 guardianship survives. {Eyre v. Countess of Shaftsbury, 2 P. 
 Wms. 103. The People v. Byron, B J. C. 53.) 
 
 When there are several joint guardians, the trust is joint and 
 several. They are jointly responsible for joint acts, and each is 
 solely responsible for his own acts and defaults, in which the other 
 did not participate. When one of several guardians acts alone, 
 
452 APPOINTMENT OF GTJAEDIANS. 
 
 and misapplies the property of his ward, or fails in any thing 
 which is his several duty, he alone is responsible for his own mis- 
 conduct. {Kirby v. Turner, Hopkins, 330, per Sanford, Ch.) 
 
 The surrogate has no jurisdiction over a guardian appointed by 
 the supreme court, or a testamentary guardian. He has no power 
 in this respect, except what is conferred by the statute, which is 
 exclusively confined to guardians appointed by himself. {Matter 
 of Dyer, 5 Paige, 534.) 
 
 Section II. / 
 
 Of the appointment of guardian, and in what way it is made. 
 
 The practice of the late court of chancery and present supreme 
 court, in appointing guardians, does not fall within the scope of 
 this treatise. 
 
 We shall speak of testamentary guardians, and guardians ap- 
 pointed by the surrogate. 
 
 1. Of testamentary guardians. Before the statute 12 Charles 
 2, c. 24, a father was permitted, by the general custom within the 
 province of York, to commit, by his last will and testament, 
 the tuition of his child and the custody of his person, for a time ; 
 which testament and assignation was to be confirmed by the ordi- 
 nary, who also was to provide for the execution of the same testa- 
 ment. If the father died without making the appointment, the 
 power devolved on the mother, who was authorized, by her last 
 will and testament, to appoint a tutor for her minor children ; and 
 if no tutor be assigned by either of the parents, a stranger, if he 
 made the orphan his executor, and gave him his goods, might 
 assign a tutor for him, with respect to such goods ; which tutor was 
 to be confirmed by the ordinary. Swinb. 210. 2 Burn's E. L. 
 536, quarto ed.) 
 
 The statute 12 Charles 2, which was substantially re-enacted 
 in this state, controled in some respects the custom of York, and 
 made the rule universal. None but the father can appoint such 
 guardian. Nor does the making the orphan executor, or legatee, 
 or both, confer the authority to make such guardian, on a stranger 
 or a relative. In this state it has been held that even the grand- 
 
APPOINTMENT OF GUAEDIANS. 453 
 
 father has no right, under the statute, to appoint by will a guardian 
 for his grandchild. {Fullerton v. Jackson, 5 J. Ch. R. 278.) 
 
 No particular form of words is prescribed to make the appoint- 
 ment valid. It is enough if the meaning appears. Wherefore, if 
 the testator say, I commit my children to the power of such an 
 one ; or I leave them in his hands ; it is in effect as if the testator 
 had said, I make him tutor to my children. So it is if he say, I 
 leave them to his government, regimen, administration, or the like. 
 {Swinb. 216. 2 Burn's E. L. 539, quarto ed. Corrigan v. 
 Kiernan, 1 Bradf. 208.) 
 
 An appointment by deed or by will is in effect the same thing, 
 as either instrument is ambulatory and revocable till the death of 
 the party making it. In a case where the father gave the guar- 
 dianship of the infant to one by deed and to another by will, it 
 was decreed that the will was a revocation of the deed. 
 
 The statute allows the father, though a minor, to make a testa- 
 mentary guardian. In analogy to the age at which males are 
 capable of making a will of personal property, it is presumed that 
 he must be of the age of eighteen years or upwards in order to 
 make a valid testamentary appointment of a guardian. It is usual 
 to have the will making the appointment admitted to probate, 
 though the appointment derives its force from the will or deed, 
 rather than from -the probate. 
 
 The surrogate's court, we have seen, has no jurisdiction over 
 testamentary guardians, either to call them to account, remove 
 them, or direct them in their proceedings. The subject is no 
 further material to that officer, than to know, that if there be a 
 valid testamentary appointment of a guardian, made by the father, 
 the surrogate is ousted of jurisdiction. {Matter of Dyer, 5 Paige, 
 534.) 
 
 The testamentary guardian stands on the same footing of other 
 trustees, and may be called to account, directed in his conduct, or 
 removed from office by the supreme court, in a proper case. 
 ( Willard^s Eq. Juris., 423, 470.) 
 
 2. Of the appointment of guardians of the person and estate by 
 the surrogate. This is a power, we have seen, not existing at common 
 law, and which has been conferred on the surrogate's court since 
 the commencement of the present century. It is not, like the 
 
454 PETITION FOR APPOINTMENT. 
 
 power formerly enjoyed by the court of ctancery, and now by the 
 present supreme court, a general power, but is limited to certain 
 specified cases. 
 
 The provisions of the statute are substantially as follows : If 
 the minor is above the age of fourteen years, and no guardian has 
 been appointed for him by the deed or will of his father, he may 
 apply, by petition, to the surrogate of the county where the resi- 
 dence of the minor is, for the appointment of such guardian as the 
 minor may nominate, subject to the approval of the surrogate. 
 (2 R. iS. 150.) The surrogate, however, is not bound by this 
 nomination, and may, if the choice is an injudicious one, refuse to 
 approve it. Under the former statute, (1 R. L. 454,) which was 
 the same in this respect as the present, the supreme court held 
 that the surrogate had no other power to appoint a guardian for a 
 minor over fourteen years of age, than to allow such guardian as 
 might be chosen by the minor. {Sherman v. Ballon, 8 Cowen, 
 304.) If the minor, therefore, did not choose a guardian, the sur- 
 rogate could appoint none. 
 
 The proceedings to appoint a guardian are commenced by a pe- 
 tition, in writing, addressed to the court ; and it should set forth 
 enough to give jurisdiction, and such other facts as are important 
 to guide the discretion of the court. It should, therefore, set forth 
 the name, age and place of abode of the minor, the death of his 
 father, without having appointed any guardian by deed or will, the 
 amount of his personal property, and the value of the rents and 
 profits of his real estate, and the name, age and addition of the per- 
 son nominated by the minor for his guardian. It should be sub- 
 scribed by the minor, and his signature, if not made in open court, 
 should be verified by an affidavit ; and the truth of the other facts, 
 set forth in the petition, should be attested in like manner. The 
 surrogate is required, in all cases, to inquire into the circumstances 
 of the minor and ascertain the amount of his personal property, and 
 the value of the rents and profits of his real estate ; and for that pur- 
 pose he may compel any person to appear before him and testify 
 in relation thereto. (2 R. S. 151, § 6. Foster v. Mott, 3 Bradf. 
 409. Brown v. Lynch, 2 id. 214. And see App. 109, as to form 
 of petition.) It is not usually necessary to resort to testimony 
 dehors the petition, unless there be a contest about the guardianship. 
 
ORDER— BOND. 455 
 
 The petition should be accompanied with the written consent 
 of the person nominated as guardian, to act in that capacity, if ap- 
 pointed. The execution of this instrument should be regularly- 
 verified by afiidavit. The surrogate should also inquire into the 
 suitableness of the person proposed as guardian, as well as into 
 the circumstances of the minor. The testimony should be reduced 
 to writing and subscribed by the witnesses. (^Bennett v. Byrne, 
 
 2 Barb. Ch. 216. Aj)p. 110, 111.) 
 
 On filing the petition and other papers, the surrogate, if he in- 
 tends to grant the application, should enter an order in the minute 
 book directing the appointment of the person nominated as such, 
 guardian, on his executing a bond to the minor with sufficient 
 security to be approved of by the surrogate, in a penalty double the 
 amount of the personal estate, and of the value of the rents and 
 profits of the real estate, conditioned that such person will faith- 
 fully, in all things, discharge the duty of a guardian to such minor, 
 according to law, and that he will render a true and just account 
 of all moneys and property received by him, and of the application 
 thereof, and of his guardianship, in all respects, to any court having 
 cognizance thereof, when thereunto required. The statute has not 
 directed the number of sureties to be required. That matter is 
 left to the sound discretion of the surrogate. The amount of prop- 
 erty, the age of the minor and the character of the parties, are all 
 propei" to be considered in forming a judgment on this subject. 
 
 If there are more minors than one, uniting in the same application, 
 a bond should be taken to each, separately ; and they should be 
 proved or acknowledged before a proper officer, as is required of 
 deeds preparatory to recording them. (i. of 1833, ch. 271, § 9. 
 
 3 R. S. 690, 5th ed. L. of 1851, ch. 175, § 3.) A bond taken 
 to all the minors would doubtless be available to each ; but the en- 
 forcing it might sometimes be attended with inconvenience. In 
 like manner, where several persons are appointed guardians for 
 one minor, each guardian may give a separate bond, or they may 
 all join in the same bond, jointly and severally to their ward. 
 [Kirby v. Turner, 1 Hopkins, 309. App. 113.) 
 
 On producing the bond, duly executed, to the surrdgate, a further 
 order should be entered' in the minutes, approving of the bond and 
 directing the appointment to issue. The appointment should run 
 
456 GUARDIAN'S ANNUAL ACCOUNT. 
 
 in the name of the people and be tested in the name of the officer by 
 whom it is issued, under his seal of office. It is, moreover, required 
 to be recorded in a book to be provided for that piR-pose. ( App. 115.) 
 Since the law of 1837, ch. 460, (3 R. S. 247, bth ed.) every 
 general guardian appointed by the surrogate is required annually, 
 after his appointment, so long as any part of the estate or the 
 income or proceeds thereof remain in his hands, or under his con- 
 trol, to file in the office of the surrogate appointing him, an inven- 
 tory and account, under oath, of his guardianship, and of the amount 
 of property received by him and remaining in his hands, or 
 invested by him, and the manner and nature of such investments, 
 and his receipts and expenditures in form of debtor and creditor. 
 By subsequent sections of the same act, the surrogate is required 
 to annex to and deliver, with the appointment of a general guar- 
 dian made by him, a copy of the preceding section, and to, file in 
 his office all accounts and inventories before mentioned ; and in 
 the month of February, in each year, he is to examine all such 
 accounts and inventories as shall have been filed in his office for 
 the preceding year. If on such examination he shall be satisfied 
 in any case that the interest of the ward requires that a more full 
 and satisfactory account should be given, or that such guardian 
 should be removed, or in case any guardian shall neglect to file 
 such account and inventory for three months after the same should 
 have been filed, such surrogate shall proceed against such guar- 
 dian in the manner prescribed in the 14th section of title 3, chap- 
 ter 8, of the 2d part of the revised statutes, and sections 15, 16, 
 17, 18 and 19 of said title shall extend to proceedings authorized 
 by this section. But the surrogate may discontinue such pro- 
 ceedings on such guardian filing in his office an account and 
 inventory satisfactory to him, and on payment of all costs which 
 may have accrued in consequence of such neglect. The foregoing 
 sections and the practice under them will be noticed in the follow- 
 ing section of this chapter. 
 
 If the infant is under the age of fourteen years, any relative or 
 other person in his behalf may apply to the surrogate of the 
 county where the infant resides, for the appointment of a guardian, 
 
PETITION WHERE INFANT 18 UNDER FOURTEEN. 457 
 
 until he shall arrive at the age of fourteen years, and until 
 another guardian shall be appointed. (2 R. S. 151, 5 5.) 
 
 The application should be by petition, in writing, setting forth 
 the names, ages, and residence of the infants, the death of 
 their father, without having appointed any guardian by deed or 
 will ; the probable value of the personal property of the infants, 
 and the rents and profits of the real estate ; the names and places 
 of abode of the relatives of the infants, especially of those residing 
 in the county ; and conclude with the prayer for the appointment 
 of some person named in the petition, as guardian of the infants. 
 The facts stated in the petition should be verified by affidavit. On 
 filing the petition the surrogate should assign a day for the hearing of 
 the matter, and cause such notice thereof to be given to such of the 
 relatives of the infants as he shall direct. (2 R. S. 151, § 5, as 
 amended by act of 1837, ch. 460, § 44. 3 R. S. 243, 244, 5th ed.) 
 An order for the above purpose should be entered in the minutes. 
 
 The consent of the proposed guardian should be subjoined to 
 the petition, unless the petitioner asks for his own appointment. 
 
 The notice should be in writing, subscribed by the petitioner, 
 and should specify the time and place of hearing, the names of 
 the infants for whom the application is made, and the name, place 
 of abode and addition of the person proposed as guardian. On 
 receiving an affidavit of the regular service of the notice, the sur- 
 rogate should proceed to inquire into the circumstances of the 
 infants, and ascertain the amount of their personal property, and 
 the value of the rents and profits of their real estate. For this 
 purpose, as in the former case, he may compel any person to 
 appear before him and testify in relation thereto. The testimony 
 should be reduced to writing. [App. 116 to 120.] 
 
 In this stage of the proceedings there are often important ques- 
 tions as to the party entitled to be appointed guardian for the 
 infant. The former statute did not require notice of the applica- 
 tion; and hence, in some instances, persons not of kin, and 
 perhaps unsuitable persons for such a charge, received the appoint- 
 ment. The attention of the chancellor was called to this point in 
 1824, in the case of Morehouse v. Cook, {Hopkins, 226.) In that 
 case the chancellor held that as between an uncle and a stranger, 
 pther things being equal, the uncle was to be preferred. Though 
 68 
 
458 PEESOKS TO BE PREFERRED. 
 
 notice was not required by the act then in force, yet the chancellor 
 thought notice should be given to the relatives in the state, when 
 the application was by a stranger to the infant. The revisers in 
 ] 830 provided not only for notice, but they directed the order of 
 preference; first, to the mother of the minor; second, to the 
 grandfather on the father's side ; third, to the grandfather on the 
 mother's side ; fourth, to either of the uncles on the father's side ; 
 fifth, to either of the uncles on the mother's side ; sixth, to any 
 one of the next of kin to the minor who would be entitled to a 
 distribution of his personal estate, in case of his death. This pro- 
 vision was repealed soon after. As the sixth section of the act 
 gave the surrogate the same power to allow and appoint guardians 
 in the cases over which he had jurisdiction, as the chancellor, 
 the seventh section was superfluous. It, however, contains an 
 unequivocal implication, that no guardian can be appointed by the 
 surrogate in the lifetime of the father of the infant. The order 
 of preference is precisely that which the court would adopt in the 
 absence of a statutory requirement, all other things being equal. 
 
 In making the selection of the guardian, the true interest of the 
 infant is to be consulted, rather than the wishes or interests of 
 those contending for the guardianship. The particular order of 
 preference indicated above will afford a safe guide in ordinary 
 cases; but it should not be paramount to other qualifications. 
 Though the surrogate has a discretion in this matter, it is not an 
 arbitrary, but a judicial discretion, and if erroneously exercised it 
 may be corrected on appeal. ( White v. Pomeroy, 7 Barb. S. C. R. 
 640. Bennett v. Byrne, 2 Barb. Ch. R. 216.) 
 
 The declared wishes of the deceased parents of an infant, in 
 relation to the manner in which he should be brought up, and as 
 to whose care he should be committed during his infancy, are en- 
 titled to much weight in deciding upon the claim of the different 
 relatives to the guardianship of the infant. ( Underhill v. Dennis, 
 9 Paige, 203.) 
 
 After deciding in favor of the application, an order should be 
 entered in the minutes appointing the applicant, on entering into 
 the bond with sufficient sureties. The order, bond and appointr 
 ment will be the same as on the appointment of a guardian for ti. 
 minor, and which have already been noticed. 
 
REMOVAL OF GUAEDIANS. 459 
 
 Section III. 
 
 Of the r&moval of guardians by the surrogate; accepting their 
 resignation ; and of their accounting before the surrogate. 
 
 By the former statute of this state, it has heen seen, that al- 
 though the surrogate had the power of allowing and appointing 
 guardians, in certain cases, yet he had no jurisdiction over them 
 as trustees, or authority to remove them for misconduct, or accept 
 their resignation of the trust, for any reason, however urgent. The 
 power, in all these respects, belonged exclusively to the court of 
 chancery. {Matter of Andrews^ 1 J. Ch. R. 99. Ex parte 
 Crumb, 2 id. 439. Disbrow v. Henshaw, 8 Cowen, 349.) 
 
 If it was safe to entrust the power of appointment of guardians 
 for infants to the surrogates of the different counties, under the 
 limitations contained in the act, experience soon taught us that 
 that there could be no danger in conferring upon the same officer 
 the power of removal, of accepting a resignation of the trust, and 
 of compelling and settling the accounts of the guardianship. 
 
 Accordingly, by the revised statutes of 1830, the surrogate by 
 whom any guardian was appointed was empowered to remove him 
 from his trust, on the application of any ward, or of any relative in 
 his behalf, or of the surety of the guardian, for the following causes : 
 1. For the incompetency of such guardian : 2. His wasting the 
 real or personal estate of his ward : or 8. Any misconduct of the 
 guardian in relation to his duties as such. (2 R. S. 152, § 14.) 
 By another provision of the revised statutes, it was enacted that 
 a person sentenced to imprisonment for life was deemed to be 
 civilly dead ; and a sentence to the state prison for a term of 
 years, worked a forfeiture of all public offices and all private trusts^ 
 authority or power during the term of such imprisonment. (2 R. S. 
 701, §§ 19, 20.) It would, doubtless, also be evidence of such mis- 
 conduct, as to justify his entire removal from the office. 
 
 It was found that the revised statutes did not cover the whole 
 ground ; and hence the statute of 1837, ch. 460, contained suitable 
 provisions : 1. for the removal of a guardian, when his sureties have 
 become insolvent, and have removed or are about to remove from 
 
460 REMOVAL OF GIJAEDIANS. 
 
 the state, or from any cause they have become insufficient, and the 
 guardian neglects, when required, to give further sureties : and 2. for 
 granting liberty to the guardian to resign his trust. [Laws of 
 1837, ch. 460, §§ 46, 51. 3 R. S. 246, bth ed.) 
 
 The proceedings for the removal of the guardian are the same in 
 all cases. A petition should be presented to the surrogate, setting 
 forth the facts on which the application is founded, duly verified 
 by affidavit, and asking the aid of the surrogate in the premises. 
 On filing it, an order should be entered in the minute book, direct- 
 ing a citation to issue to the guardian to appear before the surro- 
 gate at a certain day and place, to show cause why he should not 
 be removed from his guardianship. (2 R. S. 152.) 
 
 This citation must have at least fourteen days between the test 
 and return ; and must be served personally on the guardian to 
 whom it is directed, at least fourteen days before the return there- 
 of. If the guardian has absconded or concealed himself so that he 
 cannot be personally served, it may be served by leaving a copy 
 thereof at the last place of residence of the guardian. {Id.) 
 
 On the return of the citation, and after receiving evidence of its 
 due service or publication, as the case may be, the surrogate 
 should proceed to inquire into the alleged complaint. For this 
 purpose supoenas may be issued to compel the attendance of wit- 
 nesses ; and the hearing may be adjourned from time to time. 
 If the surrogate is satisfied from such examination of the incom- 
 petency or misconduct of the guardian, he is authorized to remove 
 him from his trust, by an order to be duly entered in his minutes. 
 A revocation of the original appointment, under the seal of the 
 court, should be issued and served on the guardian. The revoca- 
 tion should run in the name of the people, and be tested in the 
 name of the officer by whom it is issued. It should be recorded 
 in the same book with the original appointment. (2 R. iS. 222.) 
 
 The general causes for which a removal may be made, are suf- 
 ficiently detailed in the statute. Fiied habits of intemperance 
 have been held to be a sufficient reason fot the removal. {Kettle- 
 tas v. Gardner, 1 Paige, 488.) Though the surrogate has no 
 jtirisdiction over a chancery guardian, the chancellor formerly, and 
 now the supreme court, have jurisdiction over a guardian appointed 
 
REMOVAL OF GUAEDIAN8. 461 
 
 by the surrogate to remove him, accept his resignation, or compel 
 him to account. {Matter of Dyer, 5 Paige, 534.) \ 
 
 Whenever the surrogate shall have issued a citation to a guar- 
 dian requiring him to show cause why he should not be removed 
 from office, he is empowered to enter an order enjoining such 
 guardian from further acting in the premises, until the matter in 
 controversy shall be disposed of. {Laws of 1837, ch. 460, § 61.) 
 The proceedings in obtaining an injunction order are similar to 
 those in analogous cases in the supreme court. The petition 
 should state facts enough to authorize it, and they should be sworn 
 to by the applicant for the order, or by some other person having 
 the requisite knowledge, and the petition should pray for such or- 
 der. {SeeWillard's Eq. Juris, ch. 6, Injunction, f. 341 et seq.) 
 An injunction should be granted only where the rights sought to 
 be protected are clear, or at least free from reasonable doubt. 
 {Snowden v. IS/oah, Hopkins, 347.) It should be issued only 
 where the injury is pressing and delay dangerous. {New York 
 P. and D. Establishment v. Fitch, 1 Paige, 97.) 
 
 It remains, under this head, to consider the practice on accept- 
 ing the resignation by the guardian of his trust. The application 
 for this purpose must be made by the guardian. The causes which 
 will justify a guardian in resigning his trust must be such as to 
 satisfy the surrogate that the interest of the ward will not suffer 
 by the change, and that the resignation proceeds from good and 
 proper motives of the guardian. Thus, should the guardian be 
 about to remove out of the state, or be engaged in business which 
 renders his discharge of the duties of the office impracticable, or 
 should his health or capacity for business become seriously im- 
 paired ; these and perhaps various other causes may be a good 
 ground for accepting his resignation. 
 
 Before this resignation can be accepted, the surrogate is re- 
 quired to issue a citation to the ward, requiring him to show cause, 
 at a time and place therein to be appointed, why the guardian should 
 not be permitted to resign his trust. The citation must be served 
 on the ward, by delivering him a copy, at least ten days before the 
 return day. Notice of the proceedings should also be given to the 
 next of kin of the ward, if there be any, of the age of discretion, in 
 
462 EESIGJirATION OF GUARDIANS. 
 
 the county of the surrogate. {L. of 1837, ch. 460, 5 52. 3 R. S. 
 247, bth ed.) 
 
 On the return of the citation and proof of the service, the sur- 
 rogate is required to appoint some discreet and proper person to 
 appear and attend to the interests of the ward in the premises, 
 who shall consent, in writing, to such appointment. Any other, who 
 shall desire to do so, may also appear in behalf of the ward. {Id. 
 § 53.) The guardian is then to proceed to render to the surrogate 
 a full, just and true account, in Writing, of all his receipts and pay- 
 ments on account of the ward, and of all the books, papers, moneys, 
 choses in action and other property of the ward, which may be in 
 the hands or under the control of the guardian, and to verify the 
 same by his own oath and such other evidence as shall be satisfac- 
 tory to the surrogate. {Id. 54.) If the surrogate shall be satis- 
 fied that the guardian has, in all respects, conducted himself 
 honestly in the execution of his trust, that he has rendered a full, 
 just and true account, and that the interest of the ward would not 
 be prejudiced by allowing the guardian to resign his trust, he may 
 thereupon proceed, in the mode prescribed by law, to appoint a 
 new guardian for such ward, and order that his former guardian 
 deliver over all the books, papers, moneys, choses in action or other 
 property of the ward to such new guardian, and take duplicate re- 
 ceipts for the same. {Id. § 55. Seaman v. Duryea, 1 Kern. 324.) 
 
 On delivering one of the said receipts to the surrogate to be filed 
 in his office, the surrogate may enter an order that the former 
 guardian, on his own application, be permitted to resign his trust, 
 and that he be thereupon discha,rged from any further custody or 
 care of the ward or of his estate. But the ward, or his new guar- 
 dian, is not precluded, by this accounting, from having a further 
 account from such former guardian, in relation to all matters con- 
 nected with his trust, before he was permitted to resign the same ; 
 and in relation to all such matters, the sureties of the former guar- 
 dian remain liable in the same manner and to the same extent as 
 though such order had not been made. {Id. § 56.) 
 
 As any person interested in the allowance or appointment, or 
 removal of a guardian, as next of kin, or otherwise, and any guar- 
 dian who may have been removed by any surrogate, may appeal 
 to the supreme court, within six months after any order shall have 
 
AOOOTJNTING BY GUARDIANS. 463 
 
 been made by the surrogate, for the appointment of a guardian, or 
 for his removal or refusing to make such removal, it is expedient 
 that the testimony should, in all these examinations, be reduced to 
 writing. 
 
 Upon the removal of a guardian, a new one may be appointed 
 by the surrogate as if none had ever been appointed. (2 R. S. 
 153, § IT.) 
 
 In conclusion, under this section, a few words will be added on 
 the subject of compelling guardians to account before the surro- 
 gate, and of the voluntary accounting by such guardians. This 
 matter is regulated by statute. On the application of the ward, 
 or of any relative of such ward, and on good cause being shown, 
 the guardian may be compelled to account, at any time, in the 
 same manner as an administrator. On arriving at age, the ward 
 may compel an account before the surrogate without showing any 
 cause. (2 R. S. 152, § 11.) But neither can call the adminis- 
 trators of a deceased guardian to account before the surrogate. 
 The remedy in such a case is in equity, before the supreme court. 
 {Farnsworth v. Oliphant, 19 Barb. 30. Matter of Van Wyck, 
 1 Barh. Ch. 565.) 
 
 The practice heretofore considered, with regard to compelling 
 administrators and executors to account, will, in general, apply to 
 this case. Obedience to an order to account, and to a decree di- 
 recting the guardian to pay a sum of money in his hands, and the 
 like, may be enforced by attachment, or by docketing the decree 
 and taking out execution, or by an action on the bond of the guar- 
 dian. (2 R. S. 222. Doran v. Dempsey, 1 Bradf. 490. >S'ea- 
 man v. Duryea, 1 Kern. 324.) 
 
 The proceedings to compel guardians to account, when the ap- 
 plication is by the ward or a relative, and the proceedings on the 
 part of the guardian voluntarily to render and settle his accounts, 
 are presented to the surrogate by petition in writing. Citations 
 are to be issued and served on the parties entitled to notice as in 
 proceedings to remove guardians. The attentive student can 
 easily frame the proceedings from those in other cases which have 
 been considered. 
 
 The allowances to be made to guardians for commissions and ex- 
 
464 ADMEASUEEMENT OP DOWEE. 
 
 penses are the same as those allowed to executors and administra- 
 tors. The surrogate is to file the accounts, and to record with his 
 decree a summary statement of the same as shall be finally settled 
 and allowed by him, which shall be referred to and taken as part 
 of the final decree. {Laws of 1837, ch. 460, § 2. S R. S. 365, 
 5th ed. See ante, p. 428 et seq., as to accounts of executors and 
 administrators, and Appendix as to forms Nos. 123 to 128.) 
 
 CHAPTER VII. 
 
 OF ADMEASUREMENT OP DOWER. 
 
 Executors, administrators and guardians have, in general, noth- 
 ing to do with the subject of dower. That is a matter between the 
 widow and the heirs. The right to dower, however, sometimes in- 
 cidentally arises in the administration of the estates of deceased 
 persons, and it is expressly provided, in the last subdivision of the 
 first section of the statute defining the jurisdiction of surrogates' 
 courts, (2 R. S. 220,) that they shall have power, amongst other 
 things, to cause the admeasurement of dower to widows. It will 
 not, therefore, be inappropriate to the subject of our treatise to 
 describe the nature of this estate ; the remedies to enforce the 
 right; and more especially, the jurisdiction of the surrogate's 
 court, in the premises. 
 
 The general rule with regard to the right of the widow to dow- 
 er, as it is declared by statute, is, that she shall be endowed of 
 the third part of all the lands whereof her husband was seised of 
 an estate of inheritance, at any time during the marriage. (1 R. S. 
 740, § 1.) There are three things, therefore, necessary to consum- 
 mate the right ; marriage, seisin of the ^husband of an estate 
 of inheritance, and death of the husband. 
 
 At common law the remedy of the widow was either by the 
 writ of right of dower, or the writ of dower unde nihil habet. 
 In either case this was a real action, the proceedings in which 
 •were complicated, dilatory and expensive. On recovering judg- 
 
ADMEASUREMENT OF DOVER. 465 
 
 ment, she was entitled to tlie writ of habere facias seizinam, 
 under wliicli the sheriff was required to set off to her in sever- 
 alty, by metes and bounds, where practicable, the one third of 
 the estate of inheritance of which her husband was seised dur- 
 ing the coverture, according to the effect of the recovery. Be- 
 fore such recovery, the widow had a mere right to dower, which 
 was incapable of alienation so as to vest in the assignee a right 
 of action, {Jackson v. Aspell, 20 John. 411. Sutliff v. Forgey, 
 1 Cowen, 89. S. C. affirmed 5 id. 713.) She might, indeed, 
 release it to the person having a greater estate, but could not trans- 
 fer it to a stranger ; and such is the rule noV. 
 
 The common law remedy of the widow has been abolished ; 
 and if her dower is not voluntarily assigned, she may proceed by 
 an action in the supreme court, either in the nature of a bill in 
 equity or in the nature of an ejectment, or by petition to the su- 
 preme court, county court of the county where the lands lie, or to 
 the surrogate of the same county, for the admeasurement of her 
 dower under the statute. (2 R. S. 488.) Prior to the code, 
 courts of equity had concurrent jurisdiction with courts of law, in 
 suits for the recovery and assignment of dower. {Badgley v. 
 Bruce, 4 Paige, 98.) If the facts be properly stated in the com- 
 plaint, the cause will be decided now upon the same principles as 
 formerly. 
 
 If the dower be admeasured under the statute, and possession 
 is not surrendered to the widow, she must still resort to an action 
 in the supreme court, in the nature of an ejectment, to obtain the 
 enjoyment of her right. {Borst v. Griffin, 9 Wend. 307. Parks 
 V. Hardey, 4 Bradf. 15. Jackson v. Randall, 5 Cowen, 168.) 
 The statute makes no provision for trying the title before the sur- 
 rogate, and the admeasurement is conclusive only as to the lo- 
 cation and extent of the part to which the widow is entitled, 
 after her right is admitted, or established. The defendant, not- 
 withstanding the admeasurement, may still contest the legality of 
 the widow's right. 
 
 It is obviously not within the scope of this treatise to discuss 
 the general question as to the right of dower, or the various reme- 
 dies to recover it. A brief exposition of the practice before the 
 surrogate, on an application for admeasurement of dower, is all that 
 59 
 
466 ADMEASUEEMENT OF DOWEE. 
 
 will be attempted. The reader is referred to the various treatises 
 on the practice of the supreme court, for the mode of proceeding, 
 the statutory remedy being the same in all the courts. {Crary^s 
 Practice on Special Proceedings, 1.) 
 
 A widow whose dower has not been assigned to her, within forty 
 days after the decease of her husband, if she intends to apply for 
 the admeasurement of it to the surrogate of the county, where the 
 lands lie, must present her petition in writing, to that ofiScer, within 
 twenty years after the death of her husband, unless at the time of 
 such death she was an infant, insane, or imprisoned on a criminal 
 charge. (2 R. S. 488, § 1. 1 R. S. 742.) 
 
 The petition should state the marriage, seisin and the death of 
 the husband, and particularly specify the lands to which the widow 
 claims dower ; whether the husband died seised thereof, or aliened 
 the same in his lifetime, the names of the persons owning the said 
 lands claiming a freehold estate therein, and their places of abode, 
 and whether the same are of full age or infants, the names of the 
 occupants of the lands, and concluding with a prayer for the ad- 
 measurement of the dower of the widow, and for the appointment of 
 commissioners for the purpose of making such admeasurement. 
 (See Appendix, No. 129.) 
 
 If any of the owners of the land are infants and have no guar- 
 dian, the surrogate, on the application of the widow, must appoint 
 some discreet and substantial freeholder a guardian of such infants 
 for the sole purpose of appearing for and taking care of their in- 
 terests in the proceedings. (2 R. S. 488, § 4.) The practice in 
 making such appointment, is similar to that pursued in the like 
 cases, on an application for the sale of real estate, except in this 
 instance no notice is in any case required to be served on the infant 
 preparatory to making the appointment. 
 
 A copy of the petition, with notice of the time and place when 
 it will be presented, must be served, at least twenty days previous 
 to its presentation, upon the heirs of the husband ; or, if they are 
 not the owners of the lands subject to dower, then upon the owners 
 of such lands claiming a freehold estate therein, ( Ward v. Kilts, 12 
 Wend. 137,) or their guardians, where any such heirs or owners 
 are minors, whether the minors reside in the state or not. {Id. § 5.) 
 
 Such notice may be served personally on any party of full age ; 
 
APPOINTMENT OF OOMMISSIONEES. 467 
 
 or upon the guardian of minora ; or by leaving the same with any 
 person of proper age, at the last residence of such party or guar- 
 dian, in case of his temporary absence ; and if any such heir or 
 owner be a resident out of this state, the service may be upon the 
 tenant in actual occupation of the lands, or if there be no tenant, 
 by publishing the same for three weeks successively, in some 
 newspaper printed in the county where such lands are situated. 
 {Id. § 3.) 
 
 On the day specified in the notice, if the same has been regular- 
 ly served, the surrogate, upon the hearing of the parties, may 
 order that admeasurement be made of such widow's dower of all 
 the lands of her husband, or of such parts thereof as shall have 
 been specified in such application. [Id. § 9.) (App. 131, 132.) 
 
 With regard to the matters which may properly be put in issue 
 on this hearing before the surrogate, there is some diversity of 
 opinion. The owners of the land out of which dower is claimed, 
 are obviously entitled to be heard before the surrogate on the ap- 
 pointment of the commissioners. It would seem also, on principle, 
 that any objection might be raised and decided, affecting the juris- 
 diction of the court, as that the husband is still living, and the like. 
 {Jackson v. Totten, 20 /. R. 411.) 
 
 On making the order for admeasurement, the surrogate should 
 appoint three reputable and disinterested freeholders commis- 
 sioners for the purpose of making such admeasurement, by an order 
 which shall specify the lands of which dower is to be admeasured, 
 and the time at which the commissioners shall report. {Id. § 10.) 
 
 The commimioners are required to be sworn, before entering on 
 their duties, that they will faithfully, honestly and impartially 
 discharge the duties and execute the trust reposed in them by 
 such appointment. {Id. § 11.) The oath may be taken before the 
 surrogate or a judge or clerk of any court of record, or commis- 
 sioner to take affidavits. (App. 133.) 
 
 On the death, resignation or refusal to serve of any commissioner, 
 others may be appointed in their places, by the surrogate, for the 
 time being, and they must be sworn in like manner. {Id. § 12. 
 Gah V. Edsall, 8 Wend. 460.) 
 
 The commissioners are required to execute their duties as 
 follows : 
 
468 DUTY OF COMMISSIONERS. 
 
 1. To admeasure and lay o£F, as speedily as possible, the one- 
 third part of the lands embraced in the order for their appointment 
 as the dower of such widow, designating such part with posts, 
 stones or other permanent monuments : 
 
 2. In making such admeasurement they are to take into view 
 any permanent improvements made upon the lands embraced in 
 said order, by any heir, guardian of minors, or other owners since 
 the death of the husband of such widow, or since the alienation 
 thereof by such husband ; and if practicable, to award such im- 
 provements within that part of the lands not allotted to such widow, 
 and if not practicable so to award the same, they are to make a 
 deduction from the lands allotted to such widow, proportionate to 
 the benfit she will derive from such part of the said improvements 
 as shall be included in the portion assigned to her : 
 
 3. They are to make a full and ample report of their proceed- 
 ings, with the quantity, courses and distances of the land admeas- 
 ured and allotted by thein to the widow, with a description of the 
 posts, stones and other permanent monuments thereof, and the 
 items of their charges to the court by which they were appointed, 
 at the time specified in the order for their appointment : 
 
 4. They are to employ a surveyor with necessary assistants, to 
 aid them in such admeasurement. {Id. § 13.) 
 
 The commissioners cannot inquire whether the husband has 
 made a settlement on his wife in lieu of dower. {Hyde v. Hyde, 
 4: Wend. 680.) Though, in general, dower is to be assigned by 
 metes and bounds, yet where the subject matter does not admit of 
 such division, she may be entitled to one-third of the profits. ( White 
 V. Storey, 2 Hill, 544.) If the land was aliened by the husband 
 during the marriage, she is entitled to dower only in one-third of 
 the value at the time of alienation, and no more. ( Walker v. 
 iSchyler, 4 Wend. 480.) (App. 134, 135.) 
 
 The surrogate has power to .enlarge the time of making the re- 
 port, to adjourn the proceedings from time to time ; to compel 
 the commissioners to make a report; to discharge the com- 
 missioners neglecting to make a report ; and to appoint others in 
 their places, as often as may be necessary. (2 R. iS. 490, i§ 14, 
 16.) The report, when made, must berfiled and entered at large 
 in the book provided for that purpose. {Id. § 15. 2 B. S. 222, § 7.) 
 
APPLICATION BY THE HEIRS. 469 
 
 The foregoing observations relate to the proceedings when the 
 application is made by the widow. The statute, however, extends 
 to a case where the widow neglects to apply, and the proceedings 
 are conducted on the motion of the heirs or owners of the freehold. 
 It was this class of cases that was mainly contemplated by the act 
 of 1806. (IR.L.m.) 
 
 On this branch of the subject the revised statutes contain the 
 following provisions : " After the expiration of forty days from 
 the death of any husband, his heirs, or any of them, or the 
 owners of any land subject to dower, claiming a freehold estate 
 therein, or the guardian of any such heirs or owners, may, by no- 
 tice in writing, require the widow of such husband to make demand 
 of her dower, within ninety days after service of such notice, 
 of the lands of her deceased husband, or of such part thereof as 
 shall be specified in such notice." (2 R. S. 489, § 6.) If such 
 widow shall not make her demand of dower, within the time speci- 
 fiied in such notice, by commencing a suit, or by an application for 
 admeasurement, as herein prescribed, or if such widow shall not 
 make such demand within one year after her husband's death, 
 although no notice to that effect shall have been given ; the heirs 
 of the husband of such widow, or any of them, or the owners of any 
 land subject to dower, claiming a freehold interest therein, or the 
 guardian of any such heirs or owners, may apply, by petition, to 
 the supreme court or to the county court of the county where such 
 land is situated, or to the surrogate of the same county, for the 
 admeasurement of the said widow's dower of the lands of her hus- 
 band, or of such part thereof as shall be specified in the said peti- 
 tion. A copy of such petition, with notice of the time and place 
 of presenting the same, shall be served personally on such widow, 
 twenty days previous to its presentation. {Id. §§ 7 and 8.) The 
 subsequent proceedings are in all respects the same as where the 
 application is originally made by the widow. 
 
 We now proceed to notice the proceedings before the commis- 
 sioner, and before the surrogate, on an application to set aside their 
 report. 
 
 As the commissioners derive their authority from the appoint- 
 ment, it is obvious they have no power to decide on questions rela- 
 
470 CONFIEMATION OF KEPOET— COSTS. 
 
 tive to the widow's title, but must make their admeasurement in con- 
 formity to the order of the surrogate. Thus, where the surrogate 
 ordered one third of certain premises to be set off, it was held that 
 the commissioners had no right to confine their admeasurement to 
 one sixth, upon the ground that the husband was entitled only to 
 one undivided half of the land. (Coates v. Cheever, 1 Cowen, 460.) 
 
 Though the statute is silent as to giving notice of the time when 
 the commissioners will meet, to make their admeasurement, it would 
 seem, on principle, that a reasonable notice should be given to the 
 parties to be affected by their decision. {Matter of Watkins, 
 9 John. 245.) 
 
 In making their assignment, the commissioners have the same 
 power as a sheriff under an execution upon a judgment in dower ; 
 and accordingly are not confined to the mere measuring off by 
 metes and bounds, but may assign dower in mines wrought during 
 coverture, or the like. {Coates v. Cheever, supra.) In such cases 
 the examination of witnesses will often become indispensable, and 
 yet no adequate provision is made for that purpose. 
 
 If no objection is made to the report, and the proceedings of the 
 commissioners appear to be fair and correct, it is pretty much of 
 course to confirm it. If, however, either party is dissatisfied with 
 it, and desires to have it set aside, he should give notice to the other 
 party or parties to be affected by the decision, of his intended ap- 
 plication to the surrogate, for that purpose; which notice should 
 be accompanied with copies of the papers on which the motion is 
 founded. 
 
 The costs and expenses arising on any proceedings under the 
 statute, before the surrogate, are to be taxed by him, and in case 
 no appeal is entered, the said costs and expenses are to be paid 
 equally, the one half thereof by the widow and the other half by 
 the adverse party. (2 R. S. 492, § 25.) 
 
 The costs, however, of a motion to set aside the report of the 
 commissioners rest, it is presumed, in the discretion of the court, 
 and are to be awarded Under its general power as to costs to the 
 party, in the judgment of the court entitled thereto, under a view 
 of all the circumstances of the case. (2 R. S. 223, § 10.) 
 
 The widow and any heir or owner of lands affected by the pro- 
 
APPEAL. 471 
 
 ceedings, or the guardian of such heir or owner, may, within thirty 
 days after the order of confirmation of the report of the com- 
 missioners, appeal from such order to the supreme court. This 
 appeal must he filed with the surrogate, but is not effectual or valid 
 for any purpose until a bond to the adverse party shall be execu- 
 ted by the appellant and filed with the surrogate, with security, to 
 be approved by him, in the penal sum of one hundred dollars, condi- 
 tioned for the diligent prosecution of such appeal, and for the pay- 
 ment of all costs that may be adjudged by the supreme court 
 against said appellant. (2 R. JS. 491, §§ 19, 20.) 
 
 It is the duty of the surrogate, when the appeal is perfected, on 
 receiving the amount of his fees for the service, to transcribe the 
 petition, affidavits, notices, orders, reports and all other proceed- 
 ings on the said application, together with the said appeal, to certify 
 them under his official seal, and to transmit the said copies to the 
 supreme court. 
 
 The further proceedings on the appeal do not belong to this 
 work, but will be found in the statute, and in books devoted to a 
 consideration of the practice of the supreme court. 
 
 The admeasurement of dower is seldom conducted in the surro- 
 gate's court, and it is, in general, more advisable to have the whole 
 proceedings carried on in the supreme court — a tribunal having 
 jurisdiction coextensive with the whole subject, and with more 
 ample means of doing justice to the parties. 
 
APPENDIX OF FORMS. 
 
 No. 1. 
 
 FOEM OF A WILL AND CODICIL, DEVISING REAL AND PERSONAL ESTATE. 
 
 [Ante, pp. 98, 112.] 
 
 In the name of God, amen. I, A. B., of the town of , in the 
 
 county of and state of New York, aged years and upwards, 
 
 and being of sound disposing mind and memory, do make and publish this 
 my last will and testament, in manner following, that is to say: 
 
 Mrst. I direct that my funeral charges, the expenses of administering my 
 estate, and all my debts, be paid out of my personal estate ; and if that be 
 insufficient, I expressly charge the payment thereof, or of any deficiency, 
 upon the real estate whereof I may die seised or possessed, and for that pur- 
 pose I authorize my executors hereinafter named, to sell, at public or private 
 sale, the whole or such part of my real estate as may be sufficient for that 
 purpose. 
 
 Second. I give and bequeath to my beloved wife the sum of ten thousand 
 dollars with interest from my death, in lieu of her dower and of any distribu- 
 tive share of my estate to which she might otherwise be entitled. 
 
 Third. I give and bequeath to my niece, 0. D., of, &c., wife of , 
 
 one thousand dollars, to be paid to her out of my personal estate, by my 
 executors, for her separate use, and with power to dispose of the same at her 
 death, by wfll or by an instrument in the nature of a wiU, notwithstanding 
 her coverture with her present or any future husband. And I farther direct, 
 that if she should die during my lifetime, leaving issue, and any of her de- 
 scendants sHaU be hving at the time of my death, the said legacy shall not 
 lapse ; but the same shall be paid to such descendants by my executors, to 
 wit : To all the children of the legatee, in equal proportions, if all her children 
 shall then be hving, or if none of them have died leaving issue at the time of 
 my death. But if any of her children or descendants shall have died leaving 
 issue, then such issue or descendants to take the share or part of such legacy 
 which the parent of such issue or descendants would have taken by this will, 
 if living at the time of my death. 
 
 Fourth. I give and bequeath to , infant son of , of 
 
 , a legacy of one hundred doUars ; and I authorize my executors, if 
 
 60 
 
474 APPENDIX OP POEMS. 
 
 they shall deem it safe and prudent, to pay the said legacy to the father of 
 the said infant, and take his receipt for the same, and his agreement to hold 
 the same in trust for the said infant, to be paid to him when he becomes of 
 age, with interest at the rate of fire per cent. 
 
 Fifth. I give and bequeath to each of my brothers, P. and G-., of , 
 
 the sum of five hundred dollars, and I direct that in case either of my said 
 brothers should die during my lifetime, his legacy shall not lapse, but shall go to 
 the survivor, his executors, administrators, or assigns. And if both of my said 
 brothers shall die during my lifetime, without issue or descendants, I then 
 direct that the legacies herein bequeathed shall go to my executors for the 
 general purposes of the will. 
 
 SKcih. I give and bequeath the ten shares of 100 dollars each, of stock 
 
 which I now own in the Bank, situate at, &c., to my iriend , 
 
 of 
 
 Seventh. I give and devise to my beloved wife the dwelling house and 
 
 lot in the village of , in which I now live, for and during her natural 
 
 life ; and from and after her death, I give and devise the same to my son, 
 Gr. H., his heirs and assigns for ever. 
 
 Eighth. I hereby dispose of the custody and tuition of my infant oliUdren 
 during their minority, and whUe they remain unmarried, to my beloved wife, 
 so long as she remains my widow ; but if she shall die or marry during the 
 single life and infancy of any of said children, then and in that case I dispose 
 of and commit their custody and tuition to my friend , of 
 
 Ninth. I give, devise and bequeath all the residue of my estate, real and 
 personal, to my children, share and share aliliie, as tenants in common. In 
 case any one of my children shall die in my lifetime, leaving issue or de- 
 scendants, I direct that his share shall not lapse, but shall be paid [as in the 
 3d item.] 
 
 Tenth, and lastly. I appoint my friend, E. P., executor of this my last will 
 and testament, hereby revoking all former wiUs by me made. 
 
 In witness whereof, I have hereto subscribed my name this day 
 
 of , in the year one thousand eight hundred and fifty-nine. 
 
 A. B. 
 
 pSToTE. It is not necessary that a will should be imder seaL It is good 
 either way, with or without a seal.] 
 
 "We, whose names are hereto subscribed, do certify that A. B., the testator, 
 subscribed his name to this instrument in our presence, and in the presence of 
 each of us, and at the same time he declared in our presence and hearing that 
 the same was his last wiU and testament, and requested us, and each of us, 
 to sign our names thereto as witnesses to the execution thereof, and which 
 we have done accordingly, in the presence of the testator and of each other, 
 the day of the date of the said wUl. 
 
 J. K., of the town of , county of 
 
 L. M., do do 
 
APPENDIX OF FORMS. 475 
 
 Clause in a wiU or deed, UmiUng personal property to fhe separate itse of a 
 
 married womam. 
 I give and bequeath to A. B. and 0. D., their executors, administrators and 
 assigns, the sum of two thousand dollars, in trust, to receive the interest thereof 
 during the joint lives of G. H. and B. P. his wife, and to pay the same to 
 the said B. P. and her assigns, notwithstanding her coverture, for her sole and 
 separate use, from time to time, during the joint lives of the said Gr. H. 
 and B. P. his wife, (a) so that the said E. P. shall not sell, mortgage, charge or 
 otherwise dispose of the same in the way of anticipation. (6) And if the said 
 E. P. should survive the said Gr. H., her husband, then upon trust to pay the 
 said principal sum of two thousand dollars to the said E. P., her executors,- 
 administrators or assigns ; but in case the said E. P. should die in the lifetime 
 of the said Gr. H., her husband, then in trust, after the decease of the said 
 E. P. to assign and transfer the said sum of two thousand dollars to such per- 
 son or persons, and in such shares, and subject to such conditions, as the 
 said B. P. notwithstanding her coverture, by her last will and testament in 
 writing, or by any writing in the nature of, or purporting to be, her last will 
 and testament, should limit or appoint, (c)* and in default thereof, upon trust to 
 pay, transfer and assign the same to the next of kin(cZ) of the said E. P., their 
 executors, administrators and assigns, according to the statute for the distri- 
 bution of the effects of persons dying intestate. 
 
 Clause in a will, limiting real estate to the separate vse of a married woman. 
 
 I give and devise to A. B. and C. D., lihe trustees, during the joint hves of 
 E. P., and Gr. H. her husband, all that certain tract, piece or parcel of land, 
 [here describe the same,] upon trust, to pay the rents, issues and profits there- 
 
 (a) If the clause were to stop here, E. F., the wife, would have power by vir- 
 tue of the words " sole and separate use," of disposing of the entire of her life 
 interest in this money, by what is termed a " sweeping appointment," not- 
 withstanding the direction that the payment shall be " from time to time." 
 
 (p) As to the effect of this sentence, see Clancey's Rights of Women, pp. 329, 
 330. 
 
 (c) The object and operation of this clause is to prevent the wife from dipos- 
 ing of the principal sum, while she is subject to the influence of her husband, by an 
 instrument which would take effect during her life ; she is therefore restricted to a 
 disposition by will, by which alone she can convey it, if she die during her coverture. 
 But if she survive her husband, being then freed from the marital authority, it 
 is given to her absolutely. {Clancey's Rights of Women, 306, 307. Id. 625,. 
 App., from which the foregoing clause is taken.). 
 
 {d) This ultimate limitation to the next of kin of the wife, in the event of her 
 djing in the lifetime of her husband, is introduced for the purpose of excluding 
 him from any share in this money, if she should not bequeath it to him ; for the 
 husband is now held not to be the next of kin of his wife. (Clancey's Rights 
 of Women, pp. 305, 306.) 
 
476 APPENDIX OP POEMS. 
 
 of to the said E. P.,' or to sucli person or persons as she by writing should di- 
 rect to receive the same, during the joint lives of the said E. P. and Gr. H., 
 for her sole and separate use, so that the said E. P. shall not sell, mortgage, 
 charge or otherwise dispose of the same in the way of anticipation. And 
 from and immediately after the decease of the said Gr. H., her husband, in case 
 the said E. P. should survive him, then to the said E. P., her heirs and assigns 
 for ever ; but in case the said E. P. should die in the lifetime of the said Gr. H., 
 then to the use of such persons, for such estates and charges as the said E. P., 
 by her last will and testament in writing, or by any writing in the nature of, 
 or purporting to be, her last wiH and testament, in the presence of two wit- 
 nesses, should direct, limit or appoint, and in default thereof, then to the use 
 of L. M,, his heirs and assigns for ever.(e) 
 
 No. 2. 
 CODICIL. 
 
 This is a codicil to my last wOl and testament, bearing date the day 
 
 of.... 1859. 
 
 I give and bequeath to my niece C. D., wife of , two hundred and 
 
 i3fty dollars in addition to the legacy bequeathed to her in my said will, which 
 sum is to be for her own use, and subject to her power of disposition, and not 
 to lapse, and to be in all other respects hke the said original legacy. 
 
 I nominate and appoint executor of my last will and testament, in- 
 stead of E. T., who has recently departed this Ufe. In witness whereof, &c. 
 
 [To be executed and attested like the original wUl.] 
 
 No. 3. 
 KENUNCIATION OF AN EXECUTOR. 
 [2 R. S. 70, § 8. Ante, p. 141.] 
 1, A. B., named as executor in the last wiU and testament of 0. D., latfe of 
 , deceased, do by these presents renounce the appointment of executor 
 
 (e) The plan of this instrument Is similar to that of the preceding one. The 
 object is to exclude the husband from all control over this property, during cov- 
 erture, and even after his wife's death, unless she should think proper to devise 
 it to him, according to her power. And to effect this purpose, a life estate is 
 given to her in the rents and profits, for her separate use, with a power to her to 
 dispose of the capital of the estate by will, if she should die during the cov- 
 'erture ; and If she should survive her husband, the whole estate Is her's abso- 
 lutely. And, as if it were limited to her heirs, in the event of her dying dur- 
 ing coverture, without having devised it, her husband, in such a case, would be 
 tenant by the ucrtesy, it is upon the occurrence of that contingency, limited to a 
 third person and his heirs, for the purpose of excluding the husband from such 
 interest. {Clancey's Rights of Women, 526, 627, from which the foregoing, 
 slightly alterered, is taken. And see Willard'rEq. Juris. 416-419, 490 et seq.) 
 
APPENDIX OP POEMS. 477 
 
 of the said will. In witness whereof, I have hereto subscribed my name this 
 
 day of , A. D. 18... 
 
 A.B. 
 In presence of us, 
 CD. 
 E. P. 
 
 WasTiington Cownty, ss : 0. D., being duly sworn, saith that the foregoing 
 renunciation was signed by A. B., in presence of this deponent and E. P., and 
 this deponent and the said E. P. respectively subscribed their names thereto, as 
 witnesses to the execution thereof. 
 
 Sworn, &c. C. D. 
 
 No. 4. 
 
 ORDER ON FILING RENUNCIATION. 
 
 [Ante, p. 141.] 
 
 In the Matter of pkovins the last 
 
 Will and Testament of , 
 
 deceased. 
 
 Dated, 
 
 On filing the renunciation of A. B., as executor of the last will and testa- 
 ment of , deceased, and the affidavit of the due execution thereof, it 
 
 is ordered that the said renunciation be and the same is hereby entered, and 
 that the same be recorded in the minutes of this court. 
 
 No. 5. 
 
 PETITION FOR CITATION ON PRESENTING WILL FOR PROOF. 
 
 [Laws of 1837, ch. 460. Ante, pp. 152, 154, 158, 174.] 
 
 To the surrogate of the county of 
 
 The petition of , respectfully showeth : 
 
 That late, of the town of , in the county of , 
 
 farmer, departed this life, at his residence in the said county, on the 
 
 (jay of , last having first, as your petitioner is informed and believes, 
 
 duly made and pubUshed his last will and testament, in which your petitioner 
 is named as executor, and which he now offers for probate as the law directs ; 
 
 that the said will relates to hoth reed and personal estate. That the said 
 
 -vp-as at the time of his death, an inhabitant of the said county of 
 
 and that he left him surviving a widow named , who is of fiill 
 
 age, and who now resides at , in said county, and children, as follows, 
 
 his heirs at law, to wit: 
 
 Q.. H. of , in said county, aged about 24 years. 
 
 L. M., of the same place, an infant, of the age of about 18 years, and who 
 
478 APPENDIX OP POEMS. 
 
 has no guardian to the knowledge of your petitioner, [or, if such be the fact,] 
 that he left no widow or cMldren him surviving, and that upon diUgent in- 
 quiry, the names and places of residence of his heirs at law cannot be ascer- 
 tained' [or, if such be the fact,] that his heirs at law and next of kin, are 
 
 , a brother of the deceased, who now resides at , in said 
 
 county, and is of flill age, and , a sister of the deceased, the wife of 
 
 , of , in said county, of lawful age. 
 
 Note. The nextofhin at the time of the death of the testator are to be men- 
 tioned, and if they are all dead, then the persons who have, by such death, 
 become next of kin, at the time of the application. 
 
 Tour petitioner is advised that the surrogate of the county of .' . ., has 
 
 jurisdiction to take the proof of the said wiU, and to grant letters testamentary 
 thereon, and your petitioner is desirous that the said will should be admitted 
 to probate and recorded as a will of real estate, in pursuance of the statute in 
 such case made and provided : 
 
 Tour petitioner, therefore, prays that a guardian ad Ktem be appointed for 
 the said infant, for the sole purpose of taking care of his interest in the 
 premises, and that a citation may in due form be issued, out of and under the 
 seal of the said surrogate's court, to be directed to the proper persons_pursu- 
 suant to the said statute, requiring them, and each of them, at such time and 
 place as shall be in the said citation mentioned, to appear and attend the pro- 
 bate of the said wUl, and that such further and other proceedings may be had 
 for proving and recording said wiU and the granting probate and letters testa- 
 mentary thereon, as they shall be advised are necessary and proper. And 
 your petitioner will ever pray, &c. 
 
 (Signed,) 
 
 ?(■ 
 
 No. 6. 
 JURAT. 
 State of New York, 
 Saratoga County. 
 
 On this day of , 1859, before the undersigned, surrogate 
 
 of the county of , personally appeared the above named petitioner, 
 
 who being by me duly sworn, did say that he had read [or heard read] the 
 foregoing petition by him subscribed, and knew the contents thereof, and that 
 the same was true of his own knowledge, except as to the matters therein 
 stated to be on his information and beUef, and as to those matters he beheved 
 it to be true. 
 
 Surrogate. 
 [If the will only relates to personal estate, omit the words in italics in the 
 petition.] 
 
APPENDIX OP FORMS. 479 
 
 No. 7. 
 
 CONSENT TO BE APPOINTED AND TO SERVE AS SPECIAL GUARDIAN. 
 
 [Ante, pp. 152, 158.] 
 
 Sv/rrogates' Court. — County, ss: 
 
 In the Matter or peoving the last 
 Will and Testament or 
 
 LATE OE , deceased. 
 
 I, , of , do hereby consent to be appointed by the sur- 
 rogate of the county of , special guardian for , an infant 
 
 heir of , deceased, for the sole purpose of taking care of the interests 
 
 of the said infants in the matter of proving the last will and testament of the 
 said deceased, and I consent to serve as such guardian. 
 
 Dated, (Signed,) 
 
 No. 8. 
 
 ORDER APPOINTING SPECIAL GUARDIAN. 
 
 [Ante, pp. 152, 158.] 
 
 At a surrogate's court held in and for the county of , at the sur- 
 rogate's office in said county, on the day of ,1859, 
 
 Present, , Surrogate.* 
 
 In the Matter oe proving the last 
 Will and Testament op , 
 
 deceased. 
 
 It appearing from the petition of , propounding for probate the 
 
 last will and testament of , late of , deceased, that , 
 
 one of the heirs at law of the said deceased, [or next of kin,] is an infant under 
 the age of twenty-one years, having no general guardian ; and on reading and 
 
 filing the consent of to be appointed and to serve as such guardian, 
 
 for the sole purpose of appearing for, and taking care of, the interests of the 
 
 said infant in this matter, it is ordered that the said be, and he 
 
 hereby is, appointed the special guardian for the said , to take care 
 
 of his interests in this matter. 
 
 * A formal caption, as above, is only necessary to the copy of an order issued 
 by the surrogate. The entry in the minute book should contain the title of the 
 cause, and the date of its being entered. 
 
480 APPENDIX OP POEMS. 
 
 No. 9. 
 
 ORDER FOR CITATION. 
 
 [Ante, p. 152.] 
 Title. (As in No. 8.) At, &c., (As in No. 8.) 
 
 On reading and filing the petition of , duly verified, propounding 
 
 the last will and testament of , late of , deceased, for pro- 
 bate, it is ordered that a citation issue to the proper persons, pursuant to the 
 
 prayer of the petition, requiring them to appear in this court on the 
 
 day of next, at 10, A. M., and attend the probate of the said will. 
 
 Note. — A wiU relating to personal estate may be admitted to probate with- 
 out a citation, where the widow or next of kin are of fuU age, and such of 
 them as are not executors, waive the necessity of a citation. Such waiver 
 should be by a stipulation in writing. The petition will be modified, as well 
 as the order for proof. 
 
 No. 10. 
 
 CITATION TO PROVE WILL. 
 
 [Ante, pp. 152, 154] 
 
 The people of the state of New York, by the grace of God, fi:ee and inde- 
 pendent: 
 
 To A. B., of , 0. D., of , &c., [naming each of the per- 
 sons and stating their place of residence ; if any are minors, specifying their 
 guardians by name, and stating their place of residence. If the name or place of 
 abode of any person who ought to be cited cannot be ascertained, such fact 
 should be stated in the citation ; if a female heir or next of kin be married, 
 the name of her husband as well as her own must be stated.] 
 
 "Whereas, , of the town of , in said county, have lately 
 
 applied to our surrogate of our county of , for proof of the wiU of 
 
 , late of , deceased, which will relates to both real and per- 
 sonal estate : Therefore, you and each of you, are cited and required to appear 
 
 at the oflce of the said surrogate, in the , in said county, on , 
 
 at ten o'clock, A. M. of said day, to attend the probate of said will. 
 
 In testimony whereof, we have caused the seal of ofiSce of our said surrogate 
 
 to be hereto affixed. Witness, surrogate of the county of 
 
 [seal.] , at the surrogate's office in said county, the day 
 
 of , in the year of our Lord, 
 
 Surrogate. 
 
APPENDIX OP POEMS. 481 
 
 NO. 11. 
 
 PROOF OF SERVICE OF CITATION. 
 
 [Ante, p. 153.] 
 
 County of ^ss: A. B., of , in said county, being duly 
 
 swom, saith, that he did, on the day of , 1859, serve the 
 
 annexed citation on the following named persons mentioned therein, to wit: 
 
 , by delivering to each of them, respectively, a copy thereof, 
 
 [or otherwise state the mode of service.] 
 
 Sworn, &c. (Signed.) 
 
 ADMISSION OP SERVICE. 
 
 I, , admit due service of the within citation, this day of 
 
 ,1859. 
 
 (Signed.) 
 
 No. 12. 
 
 SUBPCBNA FOR WITNESSES. 
 
 [Ante, p. 48.] 
 County of 
 
 The people of the state of New York, by the grace of God, free and inde- 
 pendent : 
 
 To , Grreeting: 
 
 We command you, and each of you, that all business and excuses being 
 laid aside, you and each of you, personally be and appear before our surro- 
 gate of our county of , at his office in , on the 
 
 day of next, at 10 A. M., to testify and give 
 
 evidence in the matter of proving the last will and testament of , 
 
 late of , deceased, now pending before our said surrogate ;t 
 
 and for a failure to attend you will be deemed guilty of a contempt of court, 
 and be responsible to the aggrieved party, for the loss and hindrance sustained 
 by such failure, and for all other damages sustained thereby, and will forfeit to 
 such aggrieved party fifty dollars in addition to such damages. 
 In testimony whereof, we have caused the seal of office of our said surro- 
 gate to be hereto affixed. Witness, , surrogate of our said 
 
 [l. s.] county, at the surrogate's office in said county, the day of 
 
 , in the year of our Lord, one thousand eight hundred and 
 
 fifty-nine. 
 
 (Signed.) 
 
 61 
 
482 APPENDIX OP FORMS. 
 
 No. 13. 
 
 FOEMS OF DEPOSITIONS OF WITNESSES PEOVING WILL AND PROOF 
 OF CUSTODY. 
 
 [Ante, pp. 165, 172.] 
 
 SurxQffate's Cowt — Scwaioga Gounty. 
 
 In the Matter of phovino the last 
 Win AND Testament op , 
 
 LATE OP , DECEASED. 
 
 Comity of Saratoga, ss: A. B., of : :, in said county, being duly 
 
 sworn and examined before C. A. W., surrogate of the county of Saratoga, 
 
 doth depose and say, that he was acquainted with , the testator 
 
 named in an instrument now prodviped and offered to the said surrogate, pur- 
 porting to be the last wiU and testament of the above named , bear- 
 ing date ; that this deponent, on or about the day of 
 
 last, received the same from the said immediately 
 
 after the execution thereof by the said testator, and the same has remained in 
 the custody of this deponent until deposited with the surrogate for probate, 
 and that while the said instrument remained in the custody of this deponent, 
 it has been in no respect altered or changed. 
 
 • .- (Signed.) 
 
 . Sworn, &c. ' 
 
 No. 14. 
 DEPOSITIONS OF THE STJBSCSIBINS WITNESSES. 
 [Ante, pp. 165, 172.] 
 Surrogate's Cowrt — Saratoga Covnty. 
 
 In THE Matter of proving the last 
 Will ^nd Testament of , 
 
 late op , DECEASED, AS A 
 
 Wjw, qf Real and Personal Es- 
 tate. 
 
 Saratoga CownU/, ss: A. B., of , in said county, being duly sworn 
 
 and examined before 0. A. Waldron, surrogate of the said county, deposeth 
 
 and saith, that he was well acquainted with , in his lifetime, and was 
 
 present and saw the said subscribe his name at the end of the instru- 
 ment in writing now produced and shown to this deponent, bearing date the 
 
 day of , purporting to be the last will and testament of the 
 
 said , deceased. That the said , at the time he so subscribed 
 
APPENDIX OP POEMS. 483 
 
 it, declared the said instrument to be his last wiU. and testament, and requested 
 this deponent and to subscribe their names as witnesses to the exe- 
 cution thereof. Thereupon this deponent and the said , in obedience 
 
 to said request, accordingly subscribed their names as witnesses at the end of 
 
 the said instrument, in the presence of the said , testator, and of each 
 
 other. This deponent further saith, that the said , at the time he so 
 
 executed the said will, was a citizen of the United States, an inhabitant of the 
 county of Saratoga, .of fiill age, of sound disposing mind and memory, in all 
 respects competent to devise real estate, and not under any restraint, or in any 
 respect incompetent to devise real estate, to the knowledge or belief of this 
 deponent. 
 Sworn, &c. (Subscribed.) 
 
 [The deposition of the other subscribing witness will be the same, mutatis 
 lis.] 
 
 No. 15. 
 
 SUBPOENA DUCES TECUM. 
 
 [Ante, p. 48.] 
 
 [Same as No. 12 to the t, and then as follows :] And also, that you bring 
 
 along with you an instrument ifi writing, said to be in yout custody or 
 
 runder your power and control, purporting to be the last will and testament of 
 
 , late of , deceased, and also the codicil therdo. [Also modify 
 
 the subsequent part, so that it may be read on failure to attend and produce 
 such will.] You will, &c. 
 
 No. 16. 
 
 OEDBR TO BE ENTERED IN THE MINUTES, PREVIOUS TO ISSUING 
 THE SUBPCENA. 
 
 [Ante, p. 51.] 
 Tifk. {As in No. 8.) 
 
 On motion of , ordered that a subpoena issue for , as a 
 
 witness in this matter on the part of , and that he be required to bring 
 
 along with him, the will of j deceased. 
 
 Note. The proceedings to enforce obedience to the subpoena by attach- 
 ment and for the examination of foreign witnesses by commissioners, are simi- 
 lar to' the corresponding proceedings in courts of record. 
 
484 APPENDIX OP POEMS. 
 
 No. ir. 
 
 ORDER ADMITTING WILL TO PROBATE AND EBCOKD. 
 
 [Ante, p. 159.] 
 
 Titk. (As in No. 8.) Titk. {As in No. 8.) 
 
 On filing the citation heretofore issued in this matter, and returnable the 
 
 day of , and due evidence of the proper service thereof 
 
 on all the proper parties to this proceeding, it is ordered that , ex- 
 ecutor named in an instrument, in writing, offered by him for probate and 
 
 record, as the last will and testament of , late of , deceased, 
 
 bearing date the , day of , have leave to proceed to the proof 
 
 of the said supposed wiU. Whereupon the heirs [or next of Hn; &c.] appear 
 by , their counsel, [or fail to appear, as the case may be.] And here- 
 upon , subscribing witnesses to the said instrument, in wri- 
 ting, were sworn and examined, [and divers other witnesses, if such was the 
 fact,] and due deUberation being thereupon had ; and it appearing, upon the 
 proof taken, that the the said will was duly executed ; that the said testator 
 at the time of executing it was of full age for making a wiU, of sound dispos- 
 ing mind and memory, and not under restraint, and was in all respects com- 
 petent to devise real estate ; and the said surrogate being satisfied of the 
 genuineness and validity of the said wiU: Whereupon, on motion of C. S. Les- 
 ter, Esq. of counsel for the executor, it is ordered, adjudged and decreed, and 
 the said surrogate by virtue of the power vested in him, doth order, adjudge 
 and decree, that the said last will and testament was duly executed, that the 
 same is genuine and vaUd, and that the same, together with the proofs and 
 examinations taken in respect to the same, be recorded ; that the said last will 
 and testament be admitted to probate, and that the same be, and hereby is, 
 established as a will of real and personal estate. 
 
 And it is fiirther ordered, that letters testamentary issue thereon to the ex- 
 ecutors on their taking the oath required by law, provided no valid objection 
 thereto is filed with the said surrogate.* 
 
 No 18. 
 ORDER FOR LETTERS TESTAMENTARY. 
 
 [Ante, p. 160.] 
 Title. {As in No. 8.) Titk. {As in No. 8.) 
 
 The last will and testament of , late of . .• , deceased, having 
 
 been admitted to probate on the day of last, and no objec- 
 tions having been exhibited, \or the objections having been Jieard and overruled, 'as 
 
 *See 3 R. S. 154, % 2, 5th ed. 
 
APPENDIX OP POEMS. 485 
 
 the case may he,} aad A. B. the executor named in the said will having taken 
 the oath required by law, [and executed with two sv/reties, a hand, Sc, where 
 hail is required,] it is ordered that letters testamentary forthwith issue to the 
 said executor. 
 
 No. 19. 
 OATH OF EXECUTOR. 
 [Ante, p. 161.] 
 County of Saratoga, ss: I, A. M., do swear, that I will faithfully and hon- 
 estly discharge the duties of executor of the last will and testament of . . . ., 
 
 late of , deceased, according to the best of my knowledge and abiKty. 
 
 A. M. 
 Sworn, &c., before 
 
 , Surrogate. 
 
 No. 20. 
 CERTIFICATE TO BE ENDORSED ON THE WILL. 
 [Ante, p. 160.] 
 County of Saratoga, ss: Be it remembered, that on the day of the date 
 
 hereof, the last will and testament of , late of , deceased, 
 
 (being the foregoing written instrument) was duly proved before 0. A. W., sur- 
 rogate of the said county, according to law, as and for the last wiU and testa- 
 ment of the real and personal estate of the said deceased ; which last said will 
 and testament and the proofs and examinations taken thereon, are duly re- 
 corded in this ofSce. 
 
 In testimony whereof, the surrogate of the said county hath hereunto 
 [l. s.] set his hand and affixed his seal of office the day of 
 
 18... 
 
 Surrogate. 
 
 No. 21. 
 FORM OP PROBATE. 
 [Ante, pp. 145, 160.] 
 [A correct copy of the will with the following certificates.] 
 
 County of Saratoga. ) 
 
 Surrogate's Office, ) 
 
 Be it remembered, that on the day of the date hereof, the last wiU and testa- 
 ment of , late of , deceased, bearing date the day 
 
486 APPENDIX OP POEMS. 
 
 of , of which the foregoing is a trae copy, was duly proved before 
 
 C. A. W,, surrogate of the said county, according to law, as and for the last 
 wUl and testament of the real and personal estate of said deceased; which 
 said last will and testament, and the proofs and examinations taken thereon, 
 are recorded in this office. 
 
 [l. s.] In testimony, &c. as in No. 20. 
 
 Gcrumty of Saratoga. ) 
 Surrogate's Office, ) 
 
 Be it remembered, that on the day of the date hereof, letters testamentary 
 
 were duly granted to , sole executor of the last will and testament 
 
 of , late of , deceased, he having first duly taken and subscribed 
 
 an oath faithMly and honestly to discharge the duties of executor of the said, 
 will. 
 
 [l. s.] In testimony, &c. as in No. 20. 
 
 No. 22. 
 
 LETTERS TESTAMENTARY. 
 
 [Ante, p. 160.] 
 
 The People of the State of New York, by the grace of God, free and 
 independent : 
 
 [l. s.] To all whom these presents shall come or may concern, send 
 greeting. 
 
 Know ye, that at the town of , in the county of Saratoga, on the 
 
 day of , one thousand eight hundred and before 
 
 , surrogate of our said county, the last will and testament of 
 
 , late of , in said county, deceased,* was proved and is now 
 
 approved and allowed by us ; and the said , having been at or imme- 
 diately previous to his death, an inhabitant of the county of Saratoga, by 
 reason whereof the proving and registering of said will, and the granting ad- 
 ministration of all and singular the goods, chattels and credits of the said tes- 
 tator, and also the auditing, allo-vjing and final discharging the account thereof 
 doth belong unto us, the administration of all and singular the goods, chattels 
 and credits of the said deceased, and any way concerning his will, is granted 
 unto , executor in the said will named, he being first duly sworn 
 
 * At this point, some surrogates are in the habit of adding, (a copy whereof is 
 hereunto annexed,) and to attach the letters testamentary to a copy of the will. 
 Although this will not vitiate the letters, it is not required, and is contrary to cor- 
 rect usage. The probate and the letters testamentary are different documents, and 
 should be kept separate. [See the text, pages 145, 160.] 
 
APPENDIX OP FORMS. 487 
 
 faithfhlly and honestly to discharge the duties of such executor according to 
 law. 
 
 In testimony whereof, we have caused the seal of office of our said sur- 
 rogate to be hereunto affixed. Witness , surrogate of our 
 
 [l. 8.] said county, at , in said county, the day of 
 
 , one thousand eight hundred and 
 
 :}' 
 
 County of Saratoga. 
 Surrogate's Office, 
 
 Recorded the preceding letters in book A. of letters testamentary, page 
 
 , the day of A. D. 1859. 
 
 Surrogate. 
 
 No. 23. 
 
 AFFIDAVIT OF INTENTION TO FILE OBJECTIONS AGAINST THE GffiANT- 
 ING OF LETTERS TESTAMENTARY. 
 
 [Ante, p. 160.] 
 
 Surrogates Court — Cov/nty of Sa/ratoga. 
 
 In the Matter of the Goods and 
 Chattels 
 op , deceased. 
 
 Sftratoga County, ss: A. B. of , in , being duly sworn, 
 
 saith, that he is a legatee named in the last will and testament of , 
 
 which has lately been admitted to probate by the surrogate of the said county, 
 of which is executor named in said will ; that he intends to file ob- 
 jections against the granting of letters testamentary thereof to the said , 
 
 as executor, and is advised and beheves that there are just and substantial ob- 
 jections to the granting of said letters to said executor. 
 
 Sworn, &c. (Signed.) 
 
 No. 24. 
 Title. (As abovp.) 
 
 [Ante, p. 160.] 
 
 To the Surrogate of the County of 
 
 The undersigned, a legajtee [creditor or widow] of the above named de- 
 ceased, respectfully objects to the granting of letters testamentary 
 
 to , executor nanjed in the said will, for the following 
 
 reasons : 
 
 First. Por that the said is incompetent to execute the duties of 
 
 his trust as an executor of said will, by reason of iinprovidence. 
 
488 APPENDIX OP POEMS. 
 
 Second. Por that the said is incompetent to discharge the duties 
 
 of said trast, by reason of his habitual intemperance in the use of alcoholic 
 drinks. 
 
 [Set out the various objections.] (Signed, &c.) 
 
 Dated. 
 
 ORDER ON THE ABOVE. 
 
 Title. 
 
 On reading and fihng the objections of to the granting of letters 
 
 testamentary to , ordered that the said appear before the 
 
 surrogate on , at, &c., and attend the inquiry into the said objections. 
 
 [The order aUovring the objections, or dismissing them, can readily be framed 
 from the above.] 
 
 No. 25. 
 
 APPLICATION TO KBMOVB AN EXECUTOR, APTEB THE GRANTING OF 
 
 LETTERS TESTAMENTARY. 
 
 [Ante, p. 234.] 
 To the Surrogate of the county of 
 
 The petition of : , a legatee named in the last wUl and testament 
 
 of , deceased, respectfully showeth: That the above named 
 
 lately departed this hfe, having first duly made and published his 
 
 last win and testament, in which, amongst other things, he bequeathed to your 
 petitioner a certain legacy of one hundred dollars, [or as the case is,] and ap- 
 pointed A. B. executor; that the said A. B. caused the said will to be ad- 
 mitted to probate in the surrogate's court of the , county of , on or 
 
 about , and letters testamentary thereon were granted to the said 
 
 A. B, by the surrogate of the said county, on or about , as your pe- 
 titioner is informed and behoves ; that the said A. B. has taken upon himself 
 the burden of the execution of the said wiU, and has possessed himself of the 
 personal estate of the deceased to a very considerable amount, as your peti- 
 tioner is likewise informed and behoves. And your petitioner further saith, 
 that the said A. B. is in such precarious circumstances as not to afford ade- 
 quate security for his due administration of the said estate ; [or that he is about 
 to remove from the state ; or set forth other cause of complaint, according to 
 the fact.] Your petitioner therefore prays that the said A. B. may be super- 
 seded ; or for such other rehef in the premises as the nature of the case may 
 require ; and for that purpose, that a citation may be issued to the said A. B., 
 requiring him to appear before the said surrogate on a day and at a place to be 
 therein inserted, to show cause why he should not be superseded. And your 
 petitioner wUl ever pray, &c. 
 
 Jurat, as No. 6. 
 
APPENDIX OP FORMS. 489 
 
 No. 26. 
 
 ORDER THEREON. 
 
 [Ante, p. 235.] 
 
 C. D. vs. A. B., EXECDTOE OF THE 
 
 LAST Will and Testament 
 
 OF , DECEASED. 
 
 ■Date. 
 
 Oq filing the petition of the above named complainant, duly verified, setting 
 forth [here recite the substance of the petition,] and praying for the aid of the 
 surrogate in the premises, it is ordered that a citation issue to the said A. B., 
 requiring him to personally be and appear before the surrogate, at his office, 
 
 in , on , to show cause why he should not be superseded as 
 
 such executor; and to abide by such order as shall be made by the surrogate 
 in the premises. 
 
 No. 27. 
 
 CITATION IN PURSUANCE THEREOF. 
 
 [Ante, p. 233.] 
 
 The People, &c.,' to A. P., executor of the last will and testament of 
 
 [i'- S.] , greeting: 
 
 You aie hereby cited, personally to be and appear before our surrogate of 
 
 our county of , at the surrogate's ofilce in , on , to 
 
 show cause why the letters testamentary on the last wiU and testament of 
 
 , deceased, heretofore granted to you, should not. be. superseded, and to 
 
 furtlier do and receive what shall be adjudged by our said surrogate in the 
 premises. 
 
 In testimony, &c 
 
 Witness, &c. 
 
 No. 28. 
 
 ORDER TO SUPERSEDE. 
 
 [Ante, p. 235.] 
 
 C. D. 
 
 vs. 
 
 A. B., BXECIJTOB OF, &c. 
 
 ■Date. 
 
 On filing the citation heretofore issued in this matter and returnable here 
 this day, and an affidavit "of the due service thereof on the above defendant, 
 ttTid no OTie appearing to oppose, and the sv/rogate having heard the proofs and aHegon 
 
 62 
 
490 APPENDIX OP FORMS. 
 
 Uons on the part of the complainant, [or, and the parties appeared by their 
 counsel, and the surrogate having heard the proofs and allegations of the re- 
 spective parties;] and it appearing to this court that the said A. B. has become 
 incompetent, by la*, to serve as executor, by reason of insanity, it is ordered, 
 adjudged and decreed, and this court, by virtue of the power vested in it, doth 
 order, adjudge and decree, that the letters testamentary, heretofore issued to 
 the said A. B., on the last will and testament of , deceased, be super- 
 seded. 
 
 Note. — The foregoing order can be easily adapted to any case. If the ap- 
 plication for a supersedeas is denied, the order can be modified accordingly. 
 
 No. 29. 
 SUPERSEDEAS. 
 [Ante, p. 235.] 
 The People of the state of New York, to all to whom these presents 
 shall come or may concern, and especially to A. B., executor of the 
 
 [l. s.] last will and testament of , late of , deceased, send 
 
 greeting. 
 Whereas, by our letters testamentary lately issued by our surrogate of our 
 
 county of , under his seal of office, bearing date the day 
 
 of , the administration of all and singular the goods, chattels and 
 
 credits of the said deceased, and any way concerning his will, was granted 
 
 unto you, the said , executor in the said will named, you having first 
 
 taken and subscribed the oath required hj law, and because it is sufficiently 
 
 testified in our surrogate's court of our county of aforesaid, that you 
 
 have become incompetent by law to serve as such exeaitor, [or as the case is,] and 
 the said court, after hearing the proofs and allegations of the parties respect- 
 ively, has, by a certain decretal order, adjudged that the said letters testament- 
 ary so issued as aforesaid, be superseded : Now, therefore, be it known, that 
 in pursuance of the said order of our said suscogate's court, and of the statute 
 in such case made and provided, we have superseded, and by these presents 
 do supersede the said letters testamentary; and we command you that you 
 entirely cease firom intermeddling with the administration of the goods, chat, 
 tels and credits of the said deceased. 
 In testimony, &c. 
 Witness, &c. 
 
 Note.— The supersedeas^hould be recorded in the book for recording let- 
 ters testamentary and of general and special administration. 
 
APPENDIX 0¥ FORMS. 491 
 
 No. 30. 
 ALLEGATION TO CONTEST PROBATE. 
 [Ante, p. 231.] 
 Washington SwrrogaWs Gaurrt: A. B., one of the next of kin of C. D., late 
 
 of , deceased, alledges that heretofore, to wit, on, &o., and -within 
 
 one year. from this day of exhibiting this allegation, a certain instujiment ia 
 
 writing was admitted to probate by the surrogate of the county of , 
 
 to wit, at , in said county, as and for the last will and testament 
 
 of , deceased, and that letters testamentary thereon were afterwards, 
 
 to wit, on , granted by the said surrogate to , an executor 
 
 named in the said supposed will, [here set forth the names and ages of the 
 legatees in the supposed will.] And the said A. B. further saith, that at the time 
 
 the said supposed instrument in writing was subscribed by the said , in 
 
 his lifetime, and also at the time the same was published and declared as and 
 
 for his last wiU and testament, to wit, at , the said was not 
 
 of sound disposing mind and memory, but on the contrary thereof, was of 
 unsound mind, and altogether incapable of making a testamentary disposition 
 of his affairs, [or otherwise, as the facts may be. The allegation may contain 
 as many articles, corresponding to counts in a declaration, as may be deemed 
 necessary, and may be concluded as follows :] and the said A. B. prays that the 
 probate of the said supposed will may be revoked, and for that purpose that a 
 
 citation may be issued to , named as executor in the said will, and 
 
 to , named as legatees therein, requiring them to appear before 
 
 the surrogate at a time and place therein to be appointed, to show cause why 
 the probate of the said supposed will should not be revoked, &c. 
 
 No. 31. 
 
 ORDER ON FILING THE ALLEGATION. 
 
 [Ante, p. 231.] 
 
 A. B., NSXT OF KIN OP , DE- 
 CEASED, 
 VS. 
 C. D., EXECCTOE, AND E. F., Gr. H., 
 &C., LEGATEES NAMED IN AN INSTKU- 
 MBNT IN WRITING, ADMITTED TO PBO- 
 BATB AS THE LAST WiLL AND TESTA- 
 MENT OF THE SAID DECEASED. 
 
 Date. 
 
 On filing the allegation of A. B., above named, setting forth [here briefly 
 recite the main charge of the allegation :] It is therefore ordered, that a cita- 
 
492 APPENDIX OP POEMS. 
 
 tion issue to the above named defendants, executor and legatees named in 
 
 said supposed will, requiring them to appear before the surrogate at , 
 
 on , to show cause why the probate of the said supposed will should 
 
 not be revoked. 
 
 No. 32. 
 
 CITATION THEREON. 
 
 [Ante, p. 231.] 
 
 The People of the state of New York, to C. D., executor, and E. P., 
 G-. H., &c., legatees named in an instrument in writing, admitted to 
 
 [l. s.] probate by the surrogate of county, as the last will and 
 
 testament of , deceased, greeting. 
 
 You are hereby cited personally to be and appear before our surrogate of 
 
 , at , on , to show cause why the probate granted 
 
 on an instrument in writing, purporting to be the last will and testament of 
 
 , deceased, should not be revoked, and to do further and receive 
 
 what our said surrogate shall have adjudged in the premises. 
 In testimony, &o. 
 Witness, &c. 
 
 No. 33. 
 
 OEDBE FOE KBVOCATION. 
 
 [Ante, p. 232.] 
 
 Date. 
 
 This cause having been brought to a final hearing on the pleadings and 
 proofs therein, and after hearing counsel on the part of the respective parties, 
 and it appearing to the surrogate firom the proofs and allegations of the parties 
 
 that the said , deceased, at the time of making the instrument in 
 
 writing, admitted to probate by this court on the day of , 
 
 as the last will and testament of the deceased, was of unsound mind and alto- 
 gether incapable of making a will, [or as the facts maybe;] it is therefore or- 
 dered, adjudged and decreed, and this court, by virtue of the power vested in it, 
 doth order, adjudge and decree, that the probate heretofore granted by this court 
 
 on the said instrument, as and for the last will and testament of the said , 
 
 deceased, be, and the same is hereby annuJleil and revoked. And it is further 
 ordered, that the revocation of the said probate be entered in the records of 
 
APPENDIX OP POEMS. 493 
 
 this court and be duly attested, and that notice thereof be duly served on 
 
 , executor in the said probate named, and be pubKshed for three 
 
 weeks successively, in a newspaper printed in said county called 
 
 No. 34. 
 
 KEVOCATION. 
 
 [Ante, p. 232.] 
 
 The People of the state of New York, to A. B., named as executor 
 in a certain instrument in writing, heretofore admitted to probate by 
 
 [l. s.] out surrogate of the county of , as and for the last will and 
 
 testament of , deceased, and to all others whom it may 
 
 concern, greeting. 
 
 Whereas, a certain instrument in writing was, on the day of 
 
 . . . ., admitted to probate by the surrogate of the county of , as and 
 
 foi' the last will and testament of , deceased; and whereas, afterwards, 
 
 to wit, on the day of , one A. B., one of the next of kin of 
 
 the said deceased, exhibited and filed in the office of the surrogate of the said 
 county his allegations in writing against the validity of the said supposed will, 
 [or against the competency of the proof of the said supposed will,] and did 
 thereupon pray the aid of the said surrogate in the premises ; and whereas 
 the said surrogate did thereupon issue a citation under his seal of office direct-' 
 ed to the said A. B., named as executor in the said supposed will, and to the 
 legatees therein named, requiring them to appear before the said surrogate at 
 
 a day, now passed at his office in , to show cause why the probate of 
 
 the said supposed will should not be revoked, which said citation was served 
 in due form of law on the executor and legatees in the said supposed wiU 
 named, and such proceedings were afterwards had thereupon in our said sur- 
 rogate's court, before our said surrogate, that it was amongst other things or- 
 dered, adjudged and decreed by our said surrogate, that the probate of the said 
 supposed will be annulled and revoked: Now, therefore, in pursuance of 
 the said in part recited order or decree and of the statute in such case made and 
 provided, we have annulled and revoked, and by these presents do annul and 
 revoke the said probate of the said supposed will. 
 In testimony, &c. 
 In witness, &c. 
 
 Note. — As the revocation of the probate necessarily operates as a supersedeas 
 to the letters testamentary or of administration with the will annexed, if they 
 have been granted, it would seem it should be recorded in the book of letters 
 testamentary, &c. 
 
494 APPENDIX OF FORMS. 
 
 No. 35. 
 
 PEOCBEDINGS TO COMPEL AN EXECUTOR TO ACCEPT OK KENOTJNCB 
 THE OFFICE. 
 
 [Ante, p. 143.] 
 
 PETITION. 
 
 To the surrogate of the county of 
 
 The petition of respectfully showeth : 
 
 That your petitioner is a creditor of , late of ^. . ., deceased; 
 
 that ttie said departed this life at , on or about the 
 
 day of , as your petitioner is informed and believes, having first 
 
 duly made and published his last will and testament, in which, amongst other 
 
 things, A. B., of , is appointed executor; that the said executor on 
 
 or about the day of , caused the said will to be admitted 
 
 to probate by the surrogate of the said county, and although the said 
 
 has not renounced the said office of executor, he has hitherto neglected 
 
 to take the oath required by law and to receive letters testamentary on the 
 said win, notwithstanding more than thirty days have elapsed since the said 
 will was admitted to probate as aforesaid. 
 
 Your petitioner therefore prays, that the said A. B. may be required to ap- 
 pear and qualify as such executor, within such time as shall be appointed for 
 that purpose, or in default thereof that he shall be deemed to have renounced 
 the said appointment. And for that purpose, your petitioner further prays 
 that a summons may be issued, under the seal of this court, directed to the 
 
 said , thereby requiring him to appear before the said surrogate and 
 
 quahfy as such executor, within a certain time therein to be limited, or that in 
 defaultithereof he may be deemed to have renounced the said appointment. 
 
 And your petitioner will ever pray, &c. 
 
 Jurat) as in No. 6. (Signed.) 
 
 No. 36. 
 
 SUMMONS. 
 
 [Ante, p. 143.] 
 
 The People, &c., to A. B., named as executor in the last will and tes- 
 
 [^- ^-J tament of , deceased, greeting. 
 
 You are hereby summoned persQnally to be and appear before our surrogate 
 
 of our county of , on or before the day of , at ten 
 
 o'clock A. M., at the surrogate's office in , to take the oath of office fts 
 
 executor of the last will and testament of the said deceased and receive letters 
 testamentary thereon, [and to give bail if it has been required,] or in default 
 thereof you will be deemed to have renounced the said appointment. 
 
 In testimony. Sue. 
 
 Witness, &o. 
 
APPENDIX OP FOEMS. 496 
 
 No. 37. 
 
 OKDER DECREEING RENUNCIATION. 
 
 [Ante, p. 144.] 
 
 L. M. (the petitioner,) 
 vs. 
 A. B., Executor, named m ifiE last \ Date. 
 
 Will and Testament of , 
 
 deceased. 
 
 On filing the summons heretofore issued in this cause and returnable here this 
 day, and an affidavit of the due service thereof, on the above defendant, and 
 the said defendant having neglected to appear and qualify as executor of the 
 last wiU and testament, according to the tenor of the said summons, it is or- 
 dered, adjudged and decreed, and this court, by virtue of the power vested in it, 
 doth order, adjudge and decree, that the said A. B., by reason of his said negh- 
 gence, has renounced the appointment of executor as aforesaid. 
 
 No. 38. 
 
 ADMINISTRATION. 
 
 [Ante, p. 201.] 
 
 PETITION. 
 
 To the surrogate of the county of 
 
 The petition of A. B., of , respectfully showeth : 
 
 That your petitioner is the widow of , laj;e of , deceased. 
 
 That the said departed this life at , in , on or 
 
 about the day of , and that he was at or immediately pre- 
 ceding his death, an inhabitant of the said county. That no last will and tes- 
 tament of the said deceased has been found or discovered to the knowledge of 
 your petitioner, and your petitioner beheves that the said died in- 
 testate. 
 
 And your petitioner further showeth that the probable value of the personal 
 estate does not exceed the sum of $ 1000, and your petitioner prays that letters of 
 administration mgy be granted to her of the goods, chattels and credits of the 
 said deceased. 
 
 And your petitioner will ever pray, &c. 
 
 Jurat, as in No. 6. (Signed.) 
 
496 APPENDIX OP POEMS. 
 
 No. 39. 
 
 ORDER FOR LETTERS. 
 [Ante, p. 202.] 
 
 In the Matter or the estate of | 
 
 , deceased. '■ ^^*®- 
 
 On flKng the petition of A. B., widow of the deceased, duly verified by 
 affidavit, by which it appears that the deceased departed this life intestate, at 
 
 , on , leaving the petitioner his widow, and possessed of 
 
 personal property of the probable value of , and praying that letters 
 
 of administration of the goods, chattels and credits of the deceased may be 
 granted to her : It is ordered that letters of administration of the goods, chat- 
 tels and credits of the said deceased be issued to the said on her 
 
 taking the oath required by law, and entering into a bond to the people of 
 this state in the penal sum of , vnth two sufficient sureties to be ap- 
 proved of by the surrogate, conditioned that the said shaJl faithfully 
 
 execute the trust reposed in her as such administratrix, and obey all orders of 
 
 the surrrogate of the county of , touching the administration of the 
 
 estate committed to her. 
 
 No. 40. 
 
 FORM OF ADMINISTRATION BOND. 
 
 [Ante, p. 202.] 
 
 Know all men by these presents: That we, A. B., of , widow, and 
 
 E. P., of ., and G-. H., of , are held and firmly bound unto 
 
 the people of the state of New York, in the sum of , to be paid to 
 
 the said people ; to which payment well and truly to be made, we bind our- 
 selves, our and each of our heirs, executors and administrators, jointly and 
 
 severally firmly by these presents. Sealed with our seals. Dated the 
 
 day of , in the year of our Lord, one thousand eight hundred and 
 
 The condition of this obligation is such, that if the above bounden A. B. 
 shall faithfully execute the trust reposed in her as administratrix of all and 
 singular the goods, chattels and credits of , late of , de- 
 ceased intestate, and also obey all orders of the surrogate of the county of 
 
 , touching the administration of the estate committed to her, then 
 
 this obhgation to be void, else to remain in full force and virtue. 
 
 A. B. [l. s.] 
 E. P. [l. s.] 
 G.H. [l. s.] 
 Sealed and delivered in presence of 
 M. W. 
 
State of New York. 
 Saratoga County, 
 
 APPENDIX OP FORMS. 497 
 
 rk) 
 
 On this day of , 1859, before me the undersigned, a 
 
 commissioner of deeds of said county, personally appeared the above named A. 
 B., E. E., and Q-. H., whom I know to be the persons respectively described in 
 the foregoing bond, and respectively acknowledged that they executed the same. 
 
 X. Y., Commissioner of Deeds. 
 
 AmCAVIT or JUSTIFICATION. 
 
 County of Saratoga, ss : — ^E. ¥., of , in said county, being duly 
 
 sworn, saith, that he is a householder residing in the county of Saratoga, and 
 is worth the sum of [the penalty of the bond] over and above aU debts, ha- 
 bilities and responsibilities. 
 
 Sworn, &c. B. P. 
 
 A similar affidavit for the other surety. 
 
 [2 E. S. 190, § 148. Id. 77, § 42, and ante, p. 202.] 
 
 No. 41. 
 
 OATH OF OFFICE OF ADMINISTRATOE. 
 
 [Ante, p. 202.] 
 
 In the Matter of the Estate 
 
 op , late op , 
 
 deceased. 
 
 I, A. B., do solemnly swear and declare, that I will, honestly and faithfully 
 
 discharge the duties of administrator of the goods, chattels and credits of , 
 
 deceased, according to law. 
 
 Sworn, &c. A. B. 
 
 No. 42. 
 
 OKDBR FOB LBTTBES FINAL. 
 
 [Ante, p. 202.] 
 
 In the Mattee of the Estate 
 
 OF , 
 
 DECEASED. 
 
 ■ Date. 
 
 A. B., widow of the deceased, having taken the oath of office as administra- 
 trix, and having also, together with 0. D. and E. ¥., her sureties, entered into 
 
 a bond to the people of this state, in the penal sum of , and with such 
 
 condition as is required by law, and in conformity to the former order in this 
 matter, it is ordered that letters of administration of the goods, chattels and 
 credits of the said deceased be forthwith issued to the said A. B. 
 63 
 
498 APPENDIX OP FORMS. 
 
 No. 43. 
 
 [Ante, p. 202.] 
 
 LETTERS OF ADMINISTRATION. 
 
 The People of the state of New York, by the grace of God, free and inde- 
 pendent: 
 
 To E. P., the widow of , late of ..,...., in the county of , 
 
 [l. s.] deceased, send greeting. 
 
 Whereas , late of , , departed this life intestate, being, at 
 
 or immediately previous to l^is death, an inhabitant of the county of Saratoga, 
 [or state according to the fact, as required by 2 R. S. 73, § 23, what wiU give 
 jurisdiction,] by means whereof the ordering and granting administration of 
 all and singular the goods, chattels and credits, whereof the said intestate died 
 possessed, in the state of New York, and also the auditing, allowing and final 
 discharging the account thereof, doth appertain unto us ; and we being desirous 
 that the goods, cjiattpls and credits of the said intestate may be well and faith- 
 fully administered, applied and disposed of, do drant unto you, the said E. P., 
 full povyer, by these presents, to administer and faithfully dispose of all and 
 singular the said goods, chattels and credits ; to ask, demand, recover and re- 
 ceive the debts which unto the said intestate, whilst living, and at the time of 
 his death, did belong, and to pay the debts which the said intestate did owe, 
 as far as such goods, chattels and credits wUl thereunto extend and the law re- 
 quire ; hereby requiring you to make, or cause to be made, a true and perfect 
 inventory of all and singular the goods, chattels and credits of the said intes- 
 tate, within a reasonable time, and return a duplicate thereof to our surrogate 
 of our county of , within three months fi'om the date of these pres- 
 ents ; and if further personal property, or assets of any kind, not mentioned in 
 any inventory that shall have been so made, shall come to your possession or 
 knowledge, to make, or cause to be made, in like manner, a true and perfect 
 inventory thereof, and return the same within two months after discovery 
 thereof; and also to render a just and true account of administration when 
 thereunto required; and we do, by these presents, depute, constitute and appoint 
 you, the said E. P., administratrix of all and singular the goods, chattels and 
 credits of the said , deceased. 
 
 In testimony, &c. 
 
 Witness, &c. 
 
 No. 44. 
 
 [Ante, p. 203.] 
 
 When the applicant is not entitled without a citation, the petition, in addi- 
 tion to the facts contained in the preceding form, will disclose the names of 
 the widow and next of kin of the deceased, and whethet they are minors or not. 
 
APPENDIX OP FORMS. 499 
 
 No. 45. 
 
 ORDER FOR CITATION. 
 [Ante, p. 203.] 
 
 In the Matter of toe Estate I 
 OF , DECEASED. ? Date. 
 
 On filing the petition of A. B., a creditor of the deceased, setting forth, &c. : 
 [here, as in the other form, recite the substance of the petition and the names 
 of the next of kin, &c.] It is therefore ordered that a citation issue to the 
 widow and next of Ifin of the said deceased, requiring them to appear before 
 
 the surrogate of the county of , at ......;., on , to take 
 
 upon them the administration of the goods, chattels and credits of , 
 
 deceased, or to sh6w cause why letters of administration should not be granted 
 to ...■...'.., who has prayed for the same as a creditor of the deceased ; [and 
 if the case requires it add :] and it is further ordered that a copy of the said 
 citation be published once a week for six weeks successively in the state papef. 
 
 No. 46: 
 CITATION. 
 [Ante, p. 203.] 
 The People of the state of New York, to the widovr and next of kin 
 
 [l. s.] of , late of , deceased. 
 
 You are hereby cited personally to be and appear before our surrogate of 
 
 our county of , at the surrogate's offtce in , in said county, 
 
 on the day of , at ten o'clock in the forenoon of that day, 
 
 to take upon you, or either of you, the administration of the goods, chattels 
 
 and credits which were of the said , deceased : or to show cause why 
 
 letters of administration should not be granted of the same to , who 
 
 has prayed for the same as a creditor of the deceased. 
 In testimony, &c. 
 Witness, &c. 
 
 No. 47. 
 ADMINISTRATION WITH THE WILL ANNEXED. 
 [Ante, pp. 207, 211.] 
 If the will was not admitted to probate by the executor, and he. has re- 
 nounced or has been summoned, and refused, &c., the widow and next of kin 
 must be cited by the applicant for the letters to appear and attend the probate 
 df tiiie will and t<> show cause why fetters of administration, with the will an- 
 
500 APPENDIX OP POEMS. 
 
 nexed, should not be granted, &c. If the applicant is entitled to the letters, 
 the latter clause may be omitted. The forms, on admitting to probate, may be 
 easily modified so as to meet this case ; and the ordinary forms of letters of 
 administration may be easily adapted to special letters durante mmore estate, 
 &G., or ad colligendum, &c. 
 
 No. 48. 
 
 PETITION TO REVOKE LETTERS OF ADMINISTRATION. 
 
 [Ante, p. 234] 
 
 To the surrogate of the county of 
 
 The petition of respeotfiilly showeth : 
 
 That on or about the day of , letters of administration of 
 
 the goods, chattels and credits of , late of the town of , de- 
 ceased, were granted to , as will more Mly and at large appear by 
 
 reference to the records of your court; that since that time, to wit, on or about 
 
 the day of , the last wUl and testament of the said deceased 
 
 has been discovered and admitted to probate by the said surrogate, and letters 
 
 testamentary thereon have, in fact, been issued to , executor in the 
 
 said wUl named, as by the said records will more fuUy appear. 
 
 Your petitioner therefore prays that the letters of adrainistration granted as 
 aforesaid, on account of the supposed intestacy of the said deceased, may be 
 revoked. 
 
 And your petitioner 'wUl ever pray, &c. (Signed.) 
 
 . Jurat, as in No. 6. 
 
 No. 49. 
 ORDER FOR CITATION. 
 The citation order for revocation, and the revocation, can be readily framed 
 from the corresponding order and process on obtaining revocation of probate. 
 [See before Nos. 28, 29, 30 and 31.] 
 
 No. 50. 
 
 RENUNCIATION OF A WIDOW OR NEXT OF KIN. 
 
 [Ante, p. 203.] 
 
 I, A. B., widow [or next of kin, as the case may be,] .of C. D. late of , 
 
 deceased, do, by these presents, renounce all my right and title to letters of 
 administration of the goods, chattels and credits of the said deceased. 
 Dated. 
 
 Witness, (Signed,) A. B. 
 
 G. H. 
 I. K. 
 
 Afifidavit of the execution of it as in No. 3. 
 
APPENDIX OP FORMS. 501 
 
 No. 51. 
 
 PROCEEDINGS TO TAKE INVENTORY. 
 
 [Ante, p. 249.] 
 
 ORDER rOR THE APPOINTMENT OF APPRAISERS. 
 
 In the Matter op the estate op I ^ 
 
 )■ Date. 
 , deceased. 
 
 On the application of , executor of the last will and testament of 
 
 the above deceased, [or administrator of the goods, chattels and credits of the 
 
 said deceased,] it is ordered that A. B., of , and 0. D., of , 
 
 be appointed appraisers of the personal estate of the deceased. 
 
 No. 52. 
 
 APPOINTMENT OF APPRAISERS. 
 
 [Ante, p. 249.] 
 
 The People of the State of New York, by the grace of Grod, free and 
 
 [l. s.] independent, to A. B. and C. D., of , in the county of , 
 
 send greeting. 
 
 Whereas, , executor of the last will and testament of , 
 
 late of , in said county, deceased, has this day applied to the surro- 
 gate of the county of for the appointment of two disinterested ap- 
 praisers of the personal estate of the said deceased, with a view to the making 
 and returning an inventory thereof: Now, therefore, be it knovm that the 
 said surrogate, in pursuance of the powers in him vested, and of an order of the 
 said court, hath appointed, and by these presents doth appoint, you the said 
 
 , appraisers, to estimate and appraise the personal property of the 
 
 deceased, and to aid the said executor in making a true and perfect inventory 
 of all the goods, chattels and credits of the said deceased. 
 
 In testimony, &c. 
 
 Witness, , Surrogate, &o. 
 
 Note. 2 S. S. 82, §§ 1, 2. Some surrogates merely give a copy of the 
 order to the appraisers; but an appointment as above seems the preferable 
 course. 
 
 No. 53. 
 
 OATH OF APPRAISERS, TO BE ANNEXED TO OR INCORPORATED IN THE 
 
 INVENTORY. 
 
 [Ante, p. 249.] 
 
 County of Saratoga, ss: I, , of the county of aforesaid, 
 
 appraiser duly appointed by the surrogate of the said county, do swear and 
 
502 APPENDIX OP PORMS, 
 
 declare that I will truly, honestly and impartially appraise the personal prop- 
 
 gpty of , deceased, which shall be for that purpose exhibited tb me, 
 
 to the best of my knowledge and abiUtyi 
 
 Sworn, &c. (Signed.) 
 
 The same oath to the other appraiser, unless both are united in one: 
 
 No. 54. 
 
 NOTICE OP APPRAISAti. 
 
 [Ante, p. 250.] 
 
 To the legatees arid next of kin of , dedeased, residing in the 
 
 county of 
 
 Take notice, that the executor of the last will and testament of , 
 
 late of , deceased, with the aid of the appraisers for that purpose, . 
 
 duly appointed by the surrogate of said county, wUl, on the day of 
 
 next, at nine o'clock A. M., at the late dwelling house of the said 
 
 deceased, proceed to make an appraisement and inventory of all tlie goods, 
 chattels and credits of the said deceased. 
 
 Dated. (Signed,) 
 
 Executor. 
 
 [2 E. S. 82, § 4. Ante, page 250.] 
 
 No. 55. 
 
 INVENTORY. 
 
 [Ante, p. 248, e< sej.] 
 
 A TRUE AND PERFECT INVENTORY of all the goods, chattels and credits which 
 
 were of , late of , deceased, made by the executor of the 
 
 last will and testament of the said deceased, with the aid, and in the presence 
 of and , beiiig duly appointed and sworn appraisers ; con- 
 taining a full, just and true statement of all the personal property of the said 
 deceased which has come to the knowledge of the said executor, and particu- 
 larly of all bank bills and other circulating medium belonging to the said de- 
 ceased, and of all just claims of the said deceased against said executor, and of 
 all bonds, mortgages, notes and other secui-ities for the paynieht of money 
 belonging to the ^aid deceased ; Specifying the name of the debtor to each 
 security, the date, the sum originally payable, the indorsements thereon, with 
 their dates and the sum which, in the judgement of the appraisers, may be 
 collectable on such security. 
 
APPENDIX QP FORMS. 503 
 
 [Here set out the articles of the personal estate. 
 
 Specie, , $100 00 
 
 Bank notes, 55 00 
 
 One bay horse, , , 100 00 
 
 One yoke oxen, 75 00 
 
 One bond against A. B., dated 1st April, 1850, conditioned 
 to pay $500, with interest, two years from date, on 
 which are the following indorsements — [set them out ;] 
 on which bond there is now supposed to be due and 
 
 collectable 400 QO 
 
 Or, the said bond is not believed to be collectable, as the case may be. 
 At the close:] 
 
 The following articles are exempt from appraisement, to remain in the pos- 
 session of the widow of the testator, pursuant to the statute. [Here give a 
 list of the exempt articles. (3 R. S. 170, 5ft ed.) The articles exempt, 
 under the act of 1842, must not, in the aggregate, exceed $150 in value. The 
 family bible, family pictures and school books, used by or in the family, are 
 specifically exempted, without reference to their value; the books forming 
 part of the family library, which do not exceed $50 dollars in value, are alone 
 exempt. The other exemptions are hmited as to quantity, but not as to 
 value. Hence, if the forks, sugar dish, milk pot and tea pot are of silver, they 
 may be set apart to the widow, as between her and the next of kin or legatees, 
 and perhaps, also, as against creditors ; but this has not yet been decided.] 
 
 No. 56. 
 
 CERTIFICATE OF THE APPRAISERS TO BE SUBJOINED TO THE 
 INVENTORY. 
 
 [Ante, p. 257.] 
 
 We whose names are hereto subscribed, appraisers appointed by the surro- 
 gate of the county of , having first taken and subscribed the oath 
 
 herein inserted, do certify that we have estimated and appraised the property 
 in the foregoing inventory contained exhibited to us, according to the best of 
 our knowledge and abiHty, and that we have signed duplicate inventories 
 thereof. 
 
 Dated. (Signed.) 
 
 No. 57. 
 
 OATH OF EXECUTOR TO BE ANNEXED TO INVENTORY. 
 [Ante, p. 262.] 
 0tatedfNew York ) 
 Saratoga County, ) 
 
 A. B., of , in said county, being duly sworn, saith that he is the 
 
 pxeoutpr of the last wiU and testament of , late of , deceased, 
 
504 APPENDIX OP POEMS. 
 
 and that the annexed inventory of the personal estate of the said deceased is 
 in all respects just and true ; that it contains a true statement of all the personal 
 property of the deceased which has come to the knoweldge of this deponent, 
 and particularly of aU money, bank bUls and other circulating medium belonging 
 to the said deceased, and of aU just claims of the said deceased against this 
 deponent, according' to the best knowledge and belief of this deponent. 
 
 Sworn, &c. (Signed.) 
 
 An inventory made and returned by an administrator is the same, mutatis 
 mutandis; and when there are several executors or administrators who join 
 in making and returning an inventory, the proceedings will be modified accord- 
 ingly. 
 
 No 58. 
 
 PROCEEDINGS TO OBTAIN AN APPKAISEMBNT OF THE GOODS, Ac. OF 
 THE DECEASED, BBFOKB THE ISSUING OF LETTERS TESTAMENTARY 
 OR OF ADMINISTRATION. 
 
 [Ante, p. 234] 
 
 To the surrogate of the county of 
 
 The petition of respectfully showeth : 
 
 That your petitioner is interested as a creditor in the estate of , 
 
 late of , deceased, and deems it important that a correct valuation of 
 
 the said estate should be made, before letters of administration thereon are 
 granted, in order that adequate security may be taken for the faithful admin- 
 istration thereof [If any special reason exists, set it out.] 
 
 Your petitioner therefore prays that a commission for the appraisement of 
 the goods, chattels and credits of the said deceased be issued to some discreet 
 persons, to be appointed by the surrogate, and that a monition issue against 
 
 , and all others with whom any of the goods, chattels and credits of 
 
 the deceased remain, that they exhibit or show them to the said appraisers at 
 the time and place of the execution of the said commission. 
 
 And your petitioner will ever pray, &c. 
 
 Jurat, as in No. 6. (Signed.) 
 
APPENDIX OP FORMS. 505 
 
 No. 59. 
 
 ORDER FOR COMMISSION AND MONITION TO ISSUE. 
 
 [Ante, p. 247.] 
 
 A. B., [the petitionee,] 
 
 vs. 
 
 E. P., [the pekson havino the 
 
 Gk)ODS, &a.] 
 
 • Date. 
 
 On filing the petition of it is ordered that a commission for the 
 
 appraisement of the goods, chattels and credits of , late of , 
 
 deceased, be issued to Gr. H., I. J. and K. L., and for the inspection of the 
 obMgations, leases, and other writings and papers whatsoever, concerning the 
 personal estate of the said deceased, at the house of the deceased or elsewhere, 
 with continuation and prorogation of the time and place as shall be needful. 
 And it is likewise ordered that a monition issue to the above named B. P. in 
 special, and all others in general with whom any of the goods, chattels or 
 credits of the deceased remain, that they exhibit the same to the said ap- 
 praisers at the time and place of the execution of the said commission. 
 
 No. ea 
 
 COMMISSION OP APPRAISEMENT. 
 [Ante, p. 247.] 
 
 The People of the state of New York, to G. H., I. J. and K L., of , 
 
 (l. s.] greeting. 
 
 Whereas, it is represented unto our surrogate of our county of , 
 
 that , of , lately died intestate, leaving goods, chattels and 
 
 credits within this state ; and whereas, it is also represented that letters of 
 administration have not been issued of the said goods, chattels and credits, 
 and that the said goods, chattels and credits are in such a situation as to render 
 it impossible for the widow and next of kin of the said deceased to make a true 
 estimate of their value ; and we, being desirous that a just appraisement and 
 valuation of the said goods, chattels and credits may be made in order that the 
 same may be certified to our said surrogate, that he may proceed in the prem- 
 ises without delay, do therefore command and direct you, the above named 
 G. H., I. J. and K. L., forthwith to repair to the late dweUing house of the 
 said deceased in , or elsewhere, wheresoever any of his goods, chat- 
 tels or credits remain or be, on such day or days, with continuation and proro- 
 gation of the said time and place as shall be needful ; and the said goods, chattels 
 and credits to appraise, and a value thereon set; and we do hereby authorize 
 you for that purpose to demand of any person who may have possession of 
 64 
 
506 APPENDIX OF FORMS. 
 
 the same, inspection of the obligations, leases, and other writings, and books 
 and papers whatsoever relative to the personal estate of the said deceased ; 
 hereby requiring you, or any two of you, the same goods, chattels and credits 
 to reduce into a just and true statement and account with your appraisement 
 of each and every article thereof, and the same, so made and valued, to return, 
 under your hands and seals, or the hands and seals of any two of you, into the 
 office of our surrogate of the county of without delay. 
 
 In testimony, &c. 
 Witness, &c. 
 
 No. 61. 
 
 MONITION. 
 
 [Ante, p. 247.] 
 
 The People of the state of , to , [the person in posses- 
 
 [l. s.] siou of the goods,] and to aU others to whom these presents shall 
 come or may concern, greeting. 
 
 We command you that you exhibit, really and with effect, to G. H., I. J. 
 and K. L., who have been duly appointed by our surrogate of the county of 
 to appraise the personal estate of , late of , de- 
 ceased, by our commission for that purpose issued to them, all and singular the 
 goods, chattels and credits of the said deceased, and also the bonds, leases and 
 other writings and papers concerning the personal estate of the deceased, 
 remaining or being with you or any of you, in order that the same may be ap- 
 praised and put into an inventory ; the same to be exhibited to the said com- 
 missioners on the day of next, at o'clock in the 
 
 forenoon, at the house of ; and this your are not to omit, on pain of 
 
 law and of contempt. 
 
 In testimony, &c. 
 
 Witness, &c. 
 
 [Note. The inventory returned with this commission is certified by the 
 appraisers, but not by the executors or administrators.] 
 
 No. 62. 
 
 PROCEEDINGS TO COMPEL THE RETURN OF AN INVENTORY AFTER THE 
 APPOINTMENT OF EXECUTOR OR ADMINISTRATORS. 
 
 [Ante, pp. 262, 267.] 
 
 PETITION. 
 
 To the surrogate of 
 
 The petition of respectfully showeth : 
 
 That letters of administration of the goods, chattels and credits of , 
 
 d, were on or about the day granted by the sur- 
 
APPENDIX OP FORMS. 507 
 
 rogate of to A. B., as your petitioner is informed and believes ; that 
 
 your petitioner is a creditor of the said deceased, and is, desirous of ascertain- 
 ing the nature and extent of his estate; that although more than three 
 months have elapsed since the granting administration as aforesaid, yet no 
 inventory of the goods, chattels and credits of the said deceased has yet been 
 
 teturned by the said 
 
 Your petitioner therefore prays that the said may be required, at 
 
 a short day, to be appointed for that purpose, to appear before the said surro- 
 gate, and return an inventory of the goods, chattels and credits of the said 
 deceased, or show reason why an attachment should not be issued against him. 
 
 (Signed.) 
 Jurat, as in No. 6. 
 
 No. 63. 
 
 ORDER FOR SUMMONS. 
 
 [Ante, pp. 262-267.] 
 
 In the Matter or the Estate of 
 
 ......... LATE op ......... DE- 
 CEASED. 
 
 •Date. 
 
 On filing the petition of , setting forth that he is a creditor of the 
 
 deceased, that A. B., administrator of the goods, chattels and credits of the 
 said deceased, has omitted to return an inventory thereof, and praying the 
 aid of the surrogate in the premises : it is therefore ordered that a summons 
 issue, requiring the said administrator to appear before the surrogate at his 
 
 office in on , then and there to return an inventory of the 
 
 goods, chattels and credits of the said deceased according to law, or to show 
 cause why an attachment should not be issued against him. 
 
 No. 64 
 SUMMONS. 
 The People of the state of New York to A. B., administrator of the goods, 
 
 [l. s.] chattels and credits of , deceased. 
 
 You are hereby summoned and required to appear before the surrogate of 
 
 the county of , at the surrogate's office in said county, on the 
 
 day of , at ten o'clock in the forenoon, then and there to return an 
 
 inventory of the goods, chattels and credits of , deceased, according 
 
 to law, or to show cause why an attachment should not issue against you. 
 In testimony, &c. 
 Witness, &ci 
 
508 APPENDIX OP PORMS. 
 
 No. 65. 
 
 OKDER FOE COMMITMENT, AFTER APPEARANCH, ON REFUSAL TO RETURN 
 
 INVENTORY. 
 
 [Ante, pp. 262-267.] 
 
 A.B. 
 
 vs. ^ Date. 
 
 C. D. 
 
 The above named defendant, having appeared in obedience to the summons 
 heretofore issued in this cause, and refused to return an inventory of the 
 
 goods, chattels and credits of , deceased, as therein reqxiired, or to 
 
 show any sufficient cause to the contrary, it is ordered, adjudged and decreed, 
 on the application of the said A. B., that the said C. D. be committed to the 
 
 common jail of the county of , there to remain until he shall return 
 
 such inventory, or be thence discharged by due course of law ; and it is further 
 ordered that an attachment for that purpose issue against him directed to the 
 sheriff of the said county, returnable on 
 
 No. 66. 
 
 ATTACHMENT. 
 
 [Ante, pp. 262 to 267.] 
 
 [l. S.] The Beople, &c., to the sheriff, &c., greeting. 
 
 Whereas, on the day of > by a certain decree made in 
 
 our surrogate's court of our county of Washington, before our surrogate of the 
 
 said county, at the town of , in a certain cause depending in our said 
 
 court, wherein A. B. is complainant and C. D. executor of the last will and 
 
 testament of , late of , deceased, is defendant, it was ordered, 
 
 adjudged and decrepd that the said be committed to the common 
 
 jail of the county of , until he shall return to our surrogate's court, 
 
 of the said county, an inventory of the goods, chattels and credits of 
 
 deceased, or be thence discharged by due course of law, as by the said decree, 
 remaining as of record in our said surrogate's court, doth and may more fully 
 
 appear, the said having re&sed to return such inventory, although 
 
 required so to do by an order and summons of our said surrogate's court: 
 Now, therefore, in order that full and speedy justice may be done in the 
 
 premises, We command you, that you take the body of the said , if 
 
 he shall be found in your bailiwick, and him safely keep in your custody until 
 he shall return such inventory, or until he shall be thence discharged by due 
 course of law; and you are to make and return to our said surrogate's court 
 
APPEbTDIX OF POEMS. 509 
 
 on , at , a certificate, under your hand, of the manner in 
 
 which you shall have executed this our writ ; and have you then there this 
 writ. 
 
 In testimony, &c. 
 
 Witness, &o. 
 
 INDORSEMENT. 
 
 Title, 
 
 Attachment against 0. D., executor &c. of , deceased intestate, 
 
 for not returning an inventory of the personal property of the deceased. 
 
 (Signed,) 
 
 J. C. H., Surrogate, 
 
 No. er. 
 
 [Ante, pp. 263 to 267.] 
 
 ORDER FOR REVOCATION OF LETTERS TESTAMENTARY, 
 
 [OR ADMINISTRATION.] 
 
 A. B. 
 
 vs. 
 C. D. 
 
 > Date. 
 
 An attachment having heretofore issued against the said C. D., committing 
 him to the common jail of the said county until he shall return an inventory of 
 the goods, chattels and credits of , deceased, and it appearing by the cer- 
 tificate of the sheriff of the said county, indorsed on the said attachment, that 
 more than thirty days have elapsed since the said C. D. was committed to his 
 custody, and the said 0. D. having still neglected to return such inventory, it 
 is ordered, a(^udged and decreed that the letters testamentary heretofore 
 granted to the said , on the last will and testament of the said de- 
 ceased, be revoked; and it is further ordered that a revocation thereof, under 
 the hand and seal of office of the said surrogate be forthwith issued. 
 
 No. 68. 
 
 REVOCATION. 
 
 [Ante, pp. 263 to 267.] 
 
 To 0. D., executor of the last will and testament of late of , 
 
 [l. s.] deceased, and to all others whom it doth or may concern, greeting : 
 
 Whereas, on the day of , letters testamentary were duly 
 
 issued to the said , as executor of the last will and testament of , 
 
 late of , deceased, by the surrogate of the county of : And 
 
 whereas, the said neglected to return an inventory of the goods, 
 
 chattels and credits of the said deceased, within the time required by law, and 
 
510 APPENDIX OP POEMS. 
 
 a summons Was thereupon issued by the said surrogate, on the appKcation 
 
 of , requiring the said to appear before the said surrogate 
 
 and return such inventory on a day now past, or show cause why an attach- 
 ment should not be issued against him : And whereas, it has been suflciently 
 testified to Our said surrogate that the said summons could not be served person- 
 ally on the said , by reason of his absconding or concealing himself, [or, 
 
 and whereaSj the said summons was duly served on the said , personally, 
 
 and the said omitted to return such inventory by the day therein 
 
 appointed, and such proceedings were thereupon had in our said surrogate's 
 court, that an attachment for not returning such inventory was duly issued 
 
 against the said to the sheriff of the county of , by virtue 
 
 of which the said has been imprisoned for thirty days and upwards 
 
 in the common jail of the said county, during all which time he has neglected 
 and still neglects to return such inventory :] Now, therefore, be it known, 
 that in pursuance of an order of our said surrogate's court, and of the statute 
 in such case made and provided, we have revoked, and by these presents do 
 revoke the said letters testamentary, and all power thereby granted over the 
 
 estate of the said deceased ; and we command the said , executor, to 
 
 desist and refrain from any further intermeddling with the said estate. 
 
 In testimony, &o. 
 
 Witness, &c. 
 
 No. 69. 
 OKDBR TO ADVERTISE FOR CLAIMS. 
 [Ante, p. 294] 
 Title. {As No. 8.) Date. 
 
 On the application of , executor of the last will and testament 
 
 of , late of , deceased, setting forth that more than sis 
 
 months have elapsed since letters testamentary on said will were issued to him 
 as such executor, and that he is desirous of giving such notice to the creditors 
 of the deceased to present their claims, as is authorized by law ; it is ordered 
 that the said executor insert a notice once in each week for six months in the 
 Saratoga EepubUcan and Sentinel, a newspaper printed in the county of Sara- 
 toga, and also in the state paper, requiring all persons, having claims against 
 said deceased, to present the same, with the vouchers thereof, to the said ex- 
 ecutor, at his ofiS.oe in , in said county, on or before the 
 
 day of next. 
 
 NOTICE TO CEEDITOKS. 
 
 Pursuant to an order of , surrogate of the county of , and 
 
 according to the statute in such case made and provided, notice is hereby 
 given to all persons having claims against . ; . : . . . ., late of i ; , deceased, 
 
APPENDIX OF FORMS, 511 
 
 that they are required to exhibit the same with the vouchees thereof to the 
 subscriber, the executor of tlie last will and testament of the said deceased, at 
 
 his office in , in said county, on or before the ...... day of 
 
 next." ■•' 
 
 DaW.- (Signed,) 
 
 ' * Mcecutor. 
 
 N0T)5.^The day must be at least six months from the day of the first publi- 
 cation 'of 'the notice. 
 
 No. 70. 
 
 AGREEMENT TO REFER A CLAIM. 
 
 [Ante, pp. 295, 296.] 
 
 Whereas John Doe has lately presented a claim to the executors of the last 
 
 will and testament of Richard Roe, late of ...,..., , deceased, the testator, for 
 
 work, labor and services said to have been done and performed by the said 
 
 John Doe for the said testator, in his lifetime, the justice of which claim is 
 
 doubted by the said executor. It is thereupon agreed, in conformity to the 
 
 statute in such case provided, by and between the said John Doe and the said 
 
 executor, that the said matter in controversy be referred to , 
 
 three disinterested persons, as referees, to hear and determine upon the same. 
 
 (Signed,) 
 Dated, &c. By both parties. 
 
 APPEOVAL OT SURROGATE. 
 
 I hereby approve of the three persons named as referees in the foregoing 
 agreement. 
 
 Dated, &c. Surrogate. 
 
 No. 71. 
 
 APPLICATION FOB PROOF OF A DEBT DTJB FROM THE DECEASED 
 TO AN EXECUTOR. 
 
 [Laws of 1837, ch. 460, § 37. 3 R. S. 175, 5th ed. 2 Bradf R. 116. Ante, 
 
 pp. 303, 317.] 
 
 To the Surrogate of the county of 
 
 The petition of , of , in said county, respectfully showeth : 
 
 That he is the executor of the last wiU. and testament of , late of , 
 
 deceased ; that the said will was admitted to probate by the surrogate of said 
 
 county on the ......... day of last, and letters testamentary were 
 
 issued to your petitioner on the day of last; and your pe- 
 titioner has made and returned an inventory of the personal estate of the said 
 
512 APPENDIX OP FORMS. 
 
 deceased, as the kw directs, by -which it appears that the assets of the said 
 deceased, applicable to the payment of debts and legacies, amount to about the 
 sum often thousand dollars: That at the time of the death of the said testa- 
 tor, he was indebted to your petitioner in the sum of five hundred dollars on 
 
 a promissory note bearing date the day of , in the 
 
 year , given by the testator to your petitioner for so much money 
 
 lent and advanced by your petitioner, on the day of the date of said note to 
 the said deceased, in his lifetime, and which note became due and payable on 
 
 the day of last, together with the interest from the date 
 
 of the date of the said note : That the amount now due due on the said note, 
 
 of principal an^ interest, is : That no payment has ever been made 
 
 upon the said note, nor are there any offsets against said note, or any other 
 defense to the same, to the knowledge or beUef of your petitioner. 
 
 Tour petitioner further showeth : That he has advertised, pursuant to the 
 statute, for claims against said estate and none have been exhibited, and he 
 believes that none exist save the one in favor of your petitioner ; and your pe- 
 titioner saith is a co-executor with your petitioner; that the only 
 
 persons entitled to share in the distribution of the personal estate of the said 
 
 deceased, are , his widow, and , his children, all of whom 
 
 reside in , and are of fiill age, and to whom he has bequeathed, in 
 
 various proportions, all his property. 
 
 Your petitioner therefore prays that the debt due to your petitioner may be 
 proved to, and allowed by the said surrogate, and that he may be permitted 
 to retain, out of the assets in his hands, enough to pay and satisfy the said 
 debt, together with the costs of this proceeding ; and for this purpose, he prays 
 that a citation may issue out of and under the seal of this court, pursuant to the 
 statute, to be directed to the persons above named, requiring them to appear 
 before the surrogate and attend the proof of the said debt, at a time and place 
 therein to be appointed. 
 
 And your petitioner will ever pray. 
 
 Dated. (Signed.) 
 
 Jurat as in No. 6. 
 
 No. 72. 
 
 ORDER FOR CITATION. 
 
 [Ante, pp. 303, 317.] 
 
 In the Matter of the Estate of 
 
 , LATE OF , ^ Date. 
 
 deceased. 
 
 On reading and filing the petition of , executor of the last will and 
 
 testament of , deceased, settmg forth that he has a claim agauis^ sjiid 
 
APPENDIX OF FORMS. . 618 
 
 estate, and praying for a citation to the proper persons requiring them to 
 attend before the surrogate on a day to be appointed, the proof of the said 
 claim, ordered that a citation issue according to the prayer of the petition, 
 
 returnable at the surrogate's office, on the day of , at ten 
 
 o'clock A. M. And it is further ordered that the said citation be served on the 
 persons to whom it shall be directed, at least fifteen days before the return 
 day thereof. 
 
 No. 73, 
 
 CITATION ON THE ABOVE ORDER. 
 
 [Ante, p. 103.] 
 
 The People, &c., to , co-executor, and , widow, and 
 
 [l. s.] -. . ., children, and legatees, named in the last will and testa- 
 ment of ... : , late of , deceased, send greeting. 
 
 You and each of you are hereby cited and required personally to be ana 
 
 appear before our surrogate of our county of at his office in , 
 
 in said county, on the day of next, at ten o'clock A. M., 
 
 to attend the proof of the debt or claim of , an executor named in the 
 
 last will and testament of the said deceased, against the said testator. 
 In testimony, &c. 
 
 "Witness, &c. 
 
 (Signed,) 
 
 Surrogate. 
 
 [The "proper persons" referred to in the statute, upon whom this citation 
 should be served, are the persons who might be prejudiced by the proof and 
 allowance of the claim.] 
 
 No. 74. 
 
 PETITION OF A CREDITOR FOR AN ORDER THAT AN ADMINISTRATOR 
 
 PAT A DEBT. 
 
 [Ante, pp. 300, 301.] 
 
 To the surrogate of the county of 
 
 The petition of , of , respectfully showeth : 
 
 That your petitioner is a creditor of , late of , deceased, 
 
 to the amount of $1000, which accrued to your petitioner for so much money 
 lent and advanced by your petitioner to the intestate in Ms lifetime, for which 
 he gave to your petitioner his promissory note ; [set it out, and describe the 
 general nature of the indebtedness ; that no payments have been made, and 
 
 no off-sets exi^t against sai4 debt.] That on or about , one A. B., 
 
 65 
 
514 APPENDIX OP FORMS. 
 
 ■was appointed by the said surrogate administrator of all and singular the 
 
 goods, chattels and credits of the said deceased, and on or about the 
 
 day of made and returned an inventory of the personal estate of the 
 
 said deceased, whereby it appears that assets to the amount of came 
 
 to the hands of the said administrator, and which are amply sufficient to pay 
 and satisfy all the debts of the said deceased. That the said administrator, in 
 piu'suance of the statute, issued and caused to be published a notice for claims 
 against the said estate, whereupon your petitioner, within the time limited 
 for that purpose, presented to the said administrator his aforesaid claim, with 
 the vouchers thereof, and the correctness of the same was duly assented to by 
 the said administrator ; that your petitioner, after the expiration of one year 
 from the granting of said letters, demanded payinent of the said claim from 
 the said administrator, and he has hitherto neglected and refused to pay the 
 same or any part thereof. 
 
 Tou petitioner therefore prays that a decree may be made, pursuant to the 
 statute in such case made and provided, against the said administrator, for the 
 payment of the said claim of your petitioner. 
 
 And your petitioner will ever pray, &c. 
 
 Dated. (Signed.) 
 
 Jurat, as in No. 6. 
 
 The order for citation, and citation to show cause against the order, can 
 easily be framed. 
 
 No. 75. 
 
 PETITION FOE ORDER TO ACCOUNT. 
 
 [Under 2 E. S. 92, § 52, and L. of 1837, ch. 460, § 76, 3 R. S. 178, 5th ed. 
 
 Ante, pp. 414, 415.] 
 
 To the surrogate of the county of 
 
 The petition of John Doe, of , in said county, respectfully showeth : 
 
 That yom petitioner is a legatee named in the last will and testament of 
 
 , late of , deceased. That the said will was admitted to 
 
 probate by the said surrogate, and recorded in his office in on 
 
 and that letters testamentary thereof were duly granted by said surrogate on 
 
 to , sole executor named in said will, and more than 
 
 eighteen months have expired since the time of such appomtment. That the 
 legacy to your petitioner is in the following terms : [Here set it out.] 
 
 That the said testator left a large personal estate, amounting to twenty 
 thousand dollars, as by inventory thereof, filed in the office of the said surro- 
 gate, will fully appear; that the personal estate was amply sufficient to pay 
 and satisfy all the debts, ftmeral charges and other expenses of administration, 
 and all the legacies bequeathed in and by the said will. 
 
APPENDIX OP PORMS. 515 
 
 Your petitioner has frequently since the expiration of the said eighteen 
 months from the date of the letters testamentary, applied to the said executor 
 for an account of his administration in this matter, and for payment of the said 
 legacy ; but the said executor has hitherto neglected and refused to render 
 such account or to pay the said legacy. 
 
 Your petitioner therefore prays that the aforesaid executor may be required 
 to pay to your petitioner the amount of the said legacy, and that an order 
 may be granted requiring the said executor, at a certain day therein to be 
 appointed, personally to appear in this court and render an account of his pro- 
 ceedings as such executor, and that such other and further proceedings may 
 be had thereon as may be requisite to enforce the payment of yoiur petitioner's 
 legacy, and as shall be just and equitable. 
 
 And your petitioner will ever pray, &c. 
 
 Dated. (Signed.) 
 
 Jurat, as in No. 6. 
 
 No. 76. 
 
 ORDER TO ACCOUNT. 
 
 [Ante, p. 415.] 
 
 In the Matter of the Estate 
 
 op , late of , 
 
 deceased. 
 
 ► Date. 
 
 On reading and filing the petition of John Doe, one of the legatees named 
 
 in the last will and testament of , late of , deceased : it is 
 
 ordered that , the executor of the said will, personally be and appear 
 
 before the surrogate of the county of at his office in , on, 
 
 &c. &c. and render an account of his proceedings as such executor, or show 
 cause why an attachment should not issue against him. 
 
 (Signed,) 
 
 Swrogate. 
 
 [See as to the mode of serving this order, ante, p. 415. L. of 183T, ch. 460, 
 § 76. 3 R. S. 178, 179. It seems that no citation is required in this case.] 
 
 No. 77. 
 
 EXECUTOR'S APPLICATION FOR FINAL SETTLEMENT OP HIS ACCOUNT. 
 
 [Under 2 R. S. 93, § 60, which can be easily modified for an application for a 
 
 voluntary settlement, under 2 R. S. 95, § 70. Ante, p. 423.] 
 
 To the surrogate of the county of 
 
 The petition of , executor of the last will and testament of , 
 
516 APPENDIX OF FORMS. 
 
 late of , deceased, respectfully showeth: that letters testamentary 
 
 were issued to him as such executor by the said surrogate, on the 
 
 ,jay of last; that the last will and testament of the said deceased 
 
 was proved and recorded in the office of the said surrogate on, the 
 
 day of ; that eighteen months and upwards have expired, since the 
 
 issuing to your petitioner of the said letters testamentary ; that yov/r petir 
 turner, at least six months after the granting of said letters, caused the notice to be 
 inserted once a vfeeh for six: months in such newspapers as were directed hy the 
 sv/rrogate, and in the manner regmred hy law, requiring aU persons having claims 
 against the deceased to exhiiit the same^ with the vouchers thereof, to yowr peti- 
 tioner at his place of residence, at a day now past, and at a day at least site 
 months from the day of the first publication thereof.* 
 
 Tour petitioner further showeth that the said testator disposed of his estate 
 by his said will in the following manner, [here set out the substance of the 
 will,] as by the said will' recorded in the surrogate's office, reference being 
 thereto had, will appear ; and your petitioner begs leave to refer to the same, 
 or the probate thereof, if it shall be necessary. 
 
 That yov/r petitioner has been required by the surrogate, on the applicalMyn, of 
 one of the legatees, \or creditors, as the case may be,] to render an account of his 
 proceedings as such eooecutor, and that he desires to have his account fvnaUy settled. 
 
 Yow petitioner therefore prays that a citation mag be issued requiring the credi- 
 tors, legatees and next of km of the said deceased to appear before the surrogate of 
 the said county, on some day therein to be appointed, to attend the settlement of 
 such accotmts. 
 
 And your petitioner will ever pray, &c. 
 
 Dated. (Signed.) 
 
 Jurat, as in No. 6. 
 
 If there has been no order to accovmt, omit the parts in Holies, and substitute 
 therefor the following : 
 
 That your petitioner is prepared to render a final account of the proceedings 
 as such executor. He therefore prays that a citation may issue, out of and 
 under the seal of this court, to be directed to all persons interested in the 
 estate of the said deceased, requiring them to appear on a certain day to be 
 therein specified, to attend the final settlement of the accounts of your peti- 
 tioner as such executor as aforesaid. 
 
 ' * The part in italics should be omitted if the executor has omitted to publish 
 notice. That being for the benefit of the executor, his omission does not prevent 
 his liability to be called on to account. 
 
APPENDIX 0¥ FORMS. 517 
 
 No. 78. 
 
 ORDER FOR CITATION TO ATTEND THE FINAL SETTLEMENT IN 
 THE FIRST CASE. 
 
 [Ante, p. 423.] 
 
 In the Matteh of the Accounting 
 
 OF , ExEODTOK &c. OF , ^ Date. 
 
 LATE of , DECEASED. 
 
 The above named , executor, having been required by the surrogate to 
 
 render an account of his proceedings as such executor, and more than eighteen 
 months having expired since the date of his letters testamentary, and being desir- 
 ous to have his accoimt finally settled; wherefore, on reading and filing his peti- 
 tion to that effect, dated this day, it is ordered that a citation issue requiring 
 the creditors, legatees and next of kin of the said deceased to appear in court 
 
 on the day of next, at ten o'clock A. M., then and there 
 
 to attend the final settlement of the account aforesaid. 
 
 No. 79. 
 CITATION THEREON. 
 t [Ante, p. 423.] 
 
 The People, &c., to the creditors, legatees and next of kin of , 
 
 [l. s.] late of , deceased, send greeting. 
 
 Tou and each of you are hereby cited and required personally to be and 
 
 appear before our surrogate of the county of , at his office in , 
 
 in said county, on the day of , at ten o'clock A. M., then 
 
 and there to attend the final settlement of the account of , as the ex- 
 ecutor of the last will and testament of the said deceased. 
 
 In testimony, &c. 
 
 Witness, &c. 
 
 No. 80. 
 ORDER FOR CITATION IN THE SECOND CASE. 
 
 [Ante, p. 427.] 
 
 The same as No. 78, except that the recital, instead of saying that he has 
 
 heen required to render an accov/nt, will simply say, " being prepared to render 
 
 an account," &c. and instead of praying a citation " to the creditors, legatees 
 
 and next of kin," wiH pray that a citation issue "to all persons interested in 
 
 the estate of , late of , deceased;" and the citation will be 
 
 like No. 79, except in its direction, which will be in conformity to the order. 
 
518 APPENDIX OP POEMS. 
 
 No 81. 
 
 ACCOUNT RBNDEKBD BY AN BXBCtJTOR OR ADMINISTRATOR ON A 
 FINAL SBTTLBMBNT. 
 
 [See Dayton's Surrogate, App. p. 49. Ante, pp. 427, 428.] 
 Saratoga Surrogate's Cowrt 
 
 In the Matter of the accounting 
 of , exeo0toe, &c. of 
 
 , LATE OF 
 
 DECEASED. 
 
 ► Account of proceedings. 
 
 To the surrogate of the county of Saratoga. 
 
 I, John Doe, of , in. said county, do respectfully render the follow- 
 ing account of my proceedings as executor of the last will and testament of 
 , late of , deceased, for final settlement and allowance. 
 
 Letters testamentary of the last will and testament of , late of 
 
 , deceased, were issued to me by the said surrogate, bearing date the 
 
 day of , I having first taken the oath of office as such 
 
 executor. On the day of , I caused an inventory of the 
 
 personal estate of the deceased to be filed in the office of the said surrogate, 
 which personal estate was duly appraised by the appraise]^ appointed by the 
 surrogate in the aggregate at $10,000. 
 
 Schedule A, hereto annexed, contains a statement of all the property con- 
 tained in said inventory, sold by me, with the prices and manner of sale ; 
 which sales were fairly made by me at the best prices that oould then be had 
 with due diligence. It also contains a statement of all the debts due the said 
 estate, and mentioned in said inventory, which have been collected, and also 
 of all interest for money received by me, for which I am legally ac- 
 countable. 
 
 Schedule B, hereto annexed, contains a statement of all debts in said inven- 
 tory mentioned, not collected or collectable by me, together with the reasons 
 why the same have not been collected and are not collectable ; and also a state- 
 ment of the articles of personal property mentioned in said inventory unsold, and 
 the reasons of the same being unsold, and their appraised value ; and also a state- 
 ment of all property mentioned therein, lost by accident, without any willful 
 default or negUgence, the cause of its loss and appraised value. No other 
 assets than those in said inventory, as herein set forth, have come to my 
 possession or knowledge, and all the increase or decrease in the value of any 
 assets of said deceased is allowed or charged in said schedules A and B. 
 
 Schedule C, hereto annexed, contains a statement of all moneys paid by me 
 for funeral and other necessary expenses for said estate, together with the 
 reasons and object of such expenditure. 
 
APPENDIX OF FOKMS. 519 
 
 On or about the day of , in the year 18 , I causeda 
 
 notice for ciaimants to present their claims against the said estate to me 
 •within the period fixed by law, and at a place therein appointed, to be pub- 
 lished in two newspapers, according to law, for six months, pursuant to an 
 
 order of the surrogate of the county of ; to which order, notice and 
 
 due proof of publication, herewith filed, I refer as part of this account. 
 
 Schedule D, hereto annexed, contains a statement of all the claims of cred- 
 itors presented to and allowed by me, or disputed by me, and for which a 
 judgment or decree has been rendered against me, together with the names 
 of the claimants, the general nature of the claim, the amount and the time of 
 the rendition of the judgment ; it also contains a statement of all moneys paid 
 by me to the creditors of the deceased, and their names and the time of such 
 payment. 
 
 Schedule B, hereto annexed, contains a statement of all moneys paid to the 
 legatees, widow or next of kin of the deceased. 
 
 Schedule P, hereto annexed, contains the names of all persons entitled, as 
 widow, legatee or next of kin of the deceased, to a share of his estate, with 
 their places of residence, degree of relationship, and a statement as to which 
 of them are minors, and whether they have any general guardian, and if so, 
 their names and places of residence, to the best of my knowledge, information 
 and behef. 
 
 Schedule Gr, hereto annexed, contains a statement of all other facts affecting 
 my administration of said estate, my rights and those of others interested 
 therein. 
 
 I charge myself: 
 
 Amount, as per inventory, $00 00 
 
 Increase as shown by schedule A, 00 00 
 
 I credit myself: 
 
 Amount of losses on sales, as per schedule D, 00 00 
 
 " debts not coflected, as per schedule D, 00 00 
 
 " schedule C, 00 00 
 
 " " D 00 00 
 
 " " E, 00 00 
 
 Leaving a balance of $00 00 
 
 to be distributed to those entitled thereto, subject to the deductions of the 
 amount of my commissions and the expenses of this accounting. The said 
 several schedules, which are signed by me, are part of this account. 
 
 (Signed,) 
 
 John Doe, Executor. 
 
 OATH OF EXECUTOR. 
 
 County of ,ss. I, John Doe, executor of the last will and testa- 
 ment of , late of , deceased, being duly sworn, say that the 
 
520 APPENDIX OF FORMS. 
 
 charges made in the foregoing account of proceedings, and schedules annexed, 
 for moneys paid by me to creditors, legatees and next of kin, and for neces- 
 sary expenses, are correct; that I have been charged therein aU the interest 
 for moneys received by me and embraced in said account, for which I am 
 legally accountable ; that the moneys stated in said account as collected were 
 all that were collectable, according to the best of my knowledge, information 
 and belief, on the debts stated in such account at the time of this settlement 
 thereof; that the allowances in said account for the decrease in the value of any 
 assets, and the charges therein for the increase in such value, are correctly 
 made ; and that I do not know of any error in said account, or any thing omitted 
 therefrom, which may in any wise prejudice the rights of any party interested 
 in said estate. And I further say that the simis under twenty dollars charged 
 in the said account, for which no vouchers or other evidences of payment are 
 produced, or for which I may not be able to produce vouchers or other evi- 
 dences of payment, have actually been paid and disbiirsed by me as charged. 
 
 John Doe. 
 
 Sworn, this day of , ) 
 
 18. ..., before me, ) 
 
 , Swrrogate. 
 
 No. 82. 
 
 OBDBR EEFBRKINa ACCOXJNT TO AN AUDITOR. 
 
 [Ante, p. 432.] 
 
 Title. (As usiud.) Date. 
 
 John Doe, the executor of the last wiU and testament of . . . ., late of . . . ., 
 
 deceased, having rendered his account of his proceedings, as such executor, to 
 
 the surrogate, it is ordered that the said account and all the vouchers thereof 
 
 and testimony taken by the surrogate, in relation thereto, be referred to Eioh- 
 
 ard Roe, Esq., of , as auditor, to examine and report thereon. 
 
 And it is further ordered that the first hearing of this matter before the said 
 
 auditor take place at , on , and that the said auditor bring 
 
 in his report before the surrogate on the day of next, at 10 
 
 o'clock A. M., which time is appointed for the hearing of the parties hereto, at 
 the surrogate's office, on the confirmation of the report of the said auditor. 
 
 psr. B. By the act of 1859, page 569, amending the 36th section 2 R. S. 88, 
 the accounts may be referred to one disinterested person as auditor; and it is 
 not necessary that it should be referred to three, as formerly.] 
 
APPENDIX OP POEMS. 521 
 
 No. 82. (a) 
 AUDITOR'S REPORT. 
 [Ante, p. 433.] 
 Surrogate's Court — Saratoga County. 
 
 In the Matter of the Accounting 
 OP John Doe, Executor of the 
 LAST Will and Testament of 
 
 , late op , 
 
 deceased. 
 
 To the surrogate of tlie county of Saratoga. 
 
 I, the undersigned, auditor duly appointed by the said surrogate to examine 
 the accounts of John Doe, executor above named, and to make a report thereon 
 subject to the confirmation of the surrogate, do respectfully report : 
 
 That I have been attended by the said executor, and by all the parties inter- 
 ested in the said accounting, and have examined the said accounts, the vouch- 
 ers thereof, and the testimony in relation thereto, and have heard the argu- 
 ments of the respective parties, and I do find that the statement of the said 
 accounts by the said executor presented to the said surrogate and referred to 
 me, is in all respects just and correct. 
 
 All which is respectfully submitted. 
 
 Dated. (Signed,) Auditor. 
 
 No. 83. 
 
 ORDER CONFIRMIN& REPORT. 
 
 [Ante, p. 433.] 
 Title. (As above.) 
 
 On reading and filing the report of , auditor, appointed by the sur- 
 rogate in this matter, whereby he finds the account of the executor, rendered 
 in this case, in all respects correct, and the parties having been heard before 
 the surrogate, after the coming in of the said report, and the said report ap- 
 pearing to the said surrogate to be in all things correct, it is ordered that the 
 same be and it is hereby confirmed, and the accounts of the said executor are 
 hereby finally settled and allowed. 
 
 The following is a summary statement of the said accounts as settled and 
 allowed, made and recorded, pursuant to the statute, viz : 
 
 [Here set out the same.] 
 
 Note. — If the auditor finds the account of the executor incorrect, he should, 
 if it be necessary, restate the whole account in such a manner as justice may 
 require. The order of confirmation will be the basis of the decree, and the 
 report of the auditor the substance of the statement which the statute requires 
 to be referred to in the decree. (Laws of 1837, cL 460, § 2. 3 E. S. 365, 
 5th ed.) 
 
522 APPENDIX OF POBMS. 
 
 No. 84. 
 
 PROCEEDINGS FOR THE SALE, LBASINfi OR MORTGAGING REAL ESTATE 
 
 EOR THE PAYMENT OF DEBTS. 
 
 [Ante, p. 306 et seq.] 
 
 FORM OF PETITION BY AN EXECUTOR. [Ante, 309.] 
 
 To the surrogate of the county of 
 
 The petition of A. B., executor of the last will and testament of C. D., late 
 of the town of , in the county of , and state of , de- 
 ceased, respectfully showeth : 
 
 That letters testamentary on the said will were issued to your petitioner by 
 
 the surrogate of the said county of , on the day of , 
 
 1859, and your petitioner, shortly afterwards, caused an inventory of the per- 
 sonal estate of the said deceased to be duly made, according to law, and which 
 
 was duly filed in the oifice of the said surrogate, on the day of , 
 
 as appears by the certificate of the said surrogate, hereto annexed: That the 
 amount of personal property which has come to the hands of your petitioner 
 
 is , and the same has been appKed by your petitioner in the payment 
 
 of funeral charges, the necessary expenses of administering the said estate, and 
 in payment of the debts of the said testator as far as the same would extend : 
 That the vaHd and subsisting debts outstanding against the said estate, as near 
 
 as can be ascertained, amount to the sum of : That the said debts 
 
 are not secured by judgment, mortgage or other charge on the real estate of 
 the said deceased or any part thereof: [or, that the said debts were secured 
 
 by a charge in the testator's will on a certain lot known as lot No , 
 
 in , [describe it,] which your petitioner was authorized to sell for that 
 
 purpose ; that your petitioner has, in pursuance of the said power, sold the 
 
 said lot, for the sum of , being the fuU value thereof, and appUed the 
 
 said money, in satisfaction of said debts, as far as it would extend, and that 
 
 there'still remains due and outstanding against the said estate, the sum of , 
 
 not secured by judgment, mortgage or other charge upon the real estate of the 
 deceased, or any part thereof:] 
 
 That the said deceased died seised, as is alleged, of the following described 
 pieces or parcels of land, to wit : a certain piece or parcel of land situate in 
 
 S , in the county of , and bounded as follows, (describe it,) 
 
 containing acres of land, and is of the value of , in the judg- 
 ment of your petitioner, and is now in the occupation of Gr. H. ; also another 
 
 lot, situate &c., [as before.] That J. I, K. L., &c., of the town of , 
 
 in the coimty of , are devisees named in the said will, and are of the 
 
 age of twenty-one years and upwards, as your petitioner is informed and be- 
 lieves : That N. 0., of the town of , in the said county, is also a devisee 
 
 named in the said will — is a minor under the age of twenty-one years, as your 
 petitioner is informed and believes : That I. T. and K. T., of, &c., are heirs 
 of the said deceased, of the age of twenty-one years and upwards, and that 
 
APPENDIX OP POEMS. 523 
 
 N. 0., of, &c., is also an heir of the said deceased, and a minor under the age 
 of twenty-one years: That the said deceased left a widow, whose name 
 is , and who resides in 
 
 Tour petitioner therefore prays that some disinterested freeholder may be 
 appointed guardian for the above named minors, for the sole purpose of appear- 
 ing for them and taking care of their interest in the proceeding ; and that 
 authority may be granted to your petitioner, pursuant to the statute in such 
 case made and provided, to mortgage, lease or sell so much of the real estate, 
 whereof the said deceased died seised, as shall be necessary to pay his debts 
 still remaining due and unpaid, together with the costs of this proceeding. And 
 your peHUoner states that, in his judgment, a sale of said premises would he more 
 advantageous to said estate than a lease or mortgage. 
 
 And your petitioner will ever pray, &c. 
 
 Jurat as in No. 6. 
 
 [If the intention be to apply for authority to lease or mortgage the estate, 
 the petition should be varied accordingly.] 
 
 No. 85. 
 
 NOTICE TO MINOR HBIE, OR DEVISEE IN THE COUNTY. 
 
 [Ante, p. 310.] 
 
 ' To , minor devisee [or heir, as the case may be,] of A. S., late df 
 
 the town of. , in the county of , deceased : 
 
 Take notice, that an apphcation wUl be made to the surrogate df the coutity 
 
 of , at his of5ce in , in said county, on the ; . . day 
 
 of , at ten o'clock A. M., for the appointment of a guardiail fdr the 
 
 above named minors, respectively, for the sole purpose of appearing for them 
 and taking care of their interest in an intended application to the said surro- 
 gate for authority to lease, mortgage or sell the real estate of the said deceased 
 to pay his debts. Tours, &c. 
 
 Dated. M. N;, Eociouior. 
 
 No. 86. 
 
 ORDER FOR THE APPOINTMENT OTS GUARDIAN FOR MINOfe, ENTERED 
 IN BOOK FOR SALES OF REAL ESTATE. 
 
 [Ante, p. 310.] 
 
 In the Matter or the real estate 
 OF , LATE OF , > May 1, 1859-. 
 
 DECEASED. 
 
 On reading and fiUttg the aflldavit of A. B., setting forth thS,t he did, on the 
 day of April last, personally serve ; and ....:,. and , 
 
524 APPENDIX OP FOKMS. 
 
 minors and devisees named in the last "will and testament of the said deceased, 
 [or heirs at law of the said deceased,] with a notice, in writing, that an appli- 
 cation would this day be made to the surrogate of said county, at , 
 
 for the appointment of a guardian ad Utem for the said minors, , 
 
 respectively, for the sole purpose of appearing for and taking care of their 
 interest in the proceedings intended to be instituted before the said surrogate, 
 for authority to lease, mortgage or sell the real estate of the said deceased, and 
 the said surrogate having heard the allegations of the parties and duly consid- 
 ered the same, it is ordered that , of , be appointed guardian 
 
 of the said minors, respectively, for the purpose aforesaid. 
 
 No. 87. 
 
 ORDER TO SHOW CAUSE. 
 
 [Ante, p. 312.] 
 
 In TflE Matter of the keal estate 
 
 OF , LATE OF , 
 
 DECEASED. 
 
 ■ Date. 
 
 On reading and filing the petition of A. B., executor of the last will and tes- 
 tament of the said deceased, praying that authority may be granted him to 
 mortgage, lease or sell the real estate of the deceased, for the pajrment of his 
 debts, it is ordered that all persons interested in the said estate appear before 
 
 the surrogate of the county of , at , on the day of 
 
 , at 10 o'clock A. M., to show cause why authority should not be given 
 
 to the said executor to mortgage, lease or sell so much of the real estate of the 
 said deceased as will be necessary to pay his debts ; and it is further ordered 
 that all persons, having demands against the said estate, exhibit and prove the 
 same at the time and place aforesaid ; and it is further ordered that a copy of 
 
 this order he published weeks, successively, in , and be 
 
 otherwise served, as the law directs. 
 
 No. 88. 
 
 ORDER FOR LEAVE TO PRESENT CLAIMS, AND FOR EXECUTORS TO 
 RENDER ACCOUNT, &c. 
 
 [Ante, p. 312.] 
 
 In THE Matter of the real estate 
 
 OF , LATE OF , } Date. 
 
 DECEASED. 
 
 On reading and filing an affidavit of the due publication in for 
 
 ■ weeks successively, of a copy of the order heretofore granted in tjiis 
 
APPENDIX OF FOEMS. 525 
 
 matter, bearing date the , aad also an afiSdavit of the due service of 
 
 a copy of said order on the widow, &c. [stating the persons on whom service 
 is required to be made by name,] in the manner required by law ; it is ordered 
 that leave be given to all persons interested in the estate of the deceased to 
 show cause, if any they have, why authority should not be given to the exe- 
 cutors of the last wiU and testament of the deceased to sell the real estate of 
 the deceased for the payment of his debts ; that the said executor render an 
 account of the administration of the personal estate of the said deceased ; and 
 that all persons having claims against said estate have leave to exhibit and 
 prov'e them as the law directs. 
 
 No. 89. 
 ORDER SETTLING ACCOUNTS AND ALLOWING CLAIMS. 
 
 [Ante, pp. 312-319.] 
 
 In the Matter of the real estate _ , 
 
 y Date. 
 
 OF , DECEASED. 
 
 This cause having been brought to a hearing on the day of , 
 
 and stood over for consideration until this day, and this court having fully 
 
 examined the accounts and vouchers of , executor, &c. &c. and duly 
 
 considered the same, it is ordered, adjudged and decreed, and this court, by 
 virtue of the power vested in it, doth order, adjudge and decree, that the 
 estate of the said deceased be credited in account with the said executor with 
 the sum of $900.00, being the amount of the inventory of the goods, chattels 
 and credits of the said deceased returned to this office by the said executor, 
 and with the sum of $100.00, being for gains on the said inventory arising 
 from the interest of money and property discovered since the said inventory 
 was returned as aforesaid, as per schedule A on file ; and be charged with the 
 following sums, duly proved and substantiated, to wit : with the sum of $20.00 
 for the surrogate's fees on admitting the last will and testament of the deceased 
 to probate, and receiving the return of inventory ; with the sum of $80.00 for 
 sundry expenses attending the administration of said estate, as per schedule 
 B ; with the sum of $100.00 for loss on the said inventory, as per schedule C ; 
 and with the sum of $800.00 for so much money paid to divers creditors of the 
 estate of the deceased on account of their said debts, as per schedule D. And 
 it is further ordered that an account current of the said accounting be entered 
 in this book at large. 
 
 And whereas, on the day of , sundry claims against the 
 
 said estate were exhibited to this court, and this court having heard the proofs 
 and allegations in relation thereto, and duly considered the same, it is there- 
 fore further ordered, adjudged and decreed, and this court, by virtue of the 
 
526 
 
 APPENDIX OP FORMS. 
 
 power vested in it, doth order, adjudge and decree, that there is due and owing 
 ffom the said estate to the several persons hereinafter named in the schedule 
 hereto subjoined, the sum of money set opposite to their names respectively, 
 over and above all discounts, and that the said respective sums are vahd and 
 subsisting debts against the said estate, not secured by judgment, mortgage, 
 or other Ken against the real estate of the said deceased. [If any debt was 
 originally secured by a lien on any of the land, &c. state the fact, and that the 
 remedy of the creditors against said land had been exhausted.] And whereas 
 one John Doe exhibited to this court, on the day and year 
 aforesaid, a certain claim against the said estate, foi^ the 
 amount of a certain promissory note, alleged to have been made by the deceased 
 in his hfetime, bearing date the 1st June, 1840, for the payment to the said John 
 Doe of $100 one day after the date thereof, vrith interest; and whereas one 
 
 , an heir of the said deceased, did allege before this court that the 
 
 said pretended claim of the said John Doe did not accrue at any time against 
 the said deceased within six years next before the death of the said deceased, 
 and did thereupon insist that the statute of limitations might be deemed a bar 
 to the said claim ; and whereas, after hearing the proofs and allegations of the 
 said parties, this court is satisfied that the said supposed demand of the said 
 John Doe did not accrue at any time within six years next before the death 
 of the said deceased : it is therefore ordered, adjudged and decreed, and this 
 court, by virtue of the power vested in it, doth order, adjudge and decree, 
 that the said pretended claim of the said John Doe is not a valid and subsist- 
 ing claim against the estate of the said deceased, and that the same be rejected. 
 
 Schedule of the daims against the estate of , deceased, adjudged to he 
 
 valid and subsisting, and referred to in the foregoing order. 
 
 Eichard Roe, |500 00 
 
 John StUes, 675 45 
 
 James Jackson, 983 21 
 
 $2158 66 
 
 The Estate of m account with A. B., executor of . 
 
 in pursuance of the foregoing order. 
 Dr. 
 
 Cr. 
 
 1859 
 
 To cash paid surrogate, 
 " expenses of adminis- 
 tration, schedule B, 
 " loss on inventory, 
 
 schedule C, 
 " cash paid to credit- 
 ors of estate on ac- 
 count of debts, sche- 
 dule D, - - 
 
 20 
 
 00 
 
 1859 
 
 80 
 
 00 
 
 
 100 
 
 00 
 
 
 800 
 
 00 
 
 
 $1000 
 
 00 
 
 By amount of inven- 
 tory of the estate 
 of the deceased, 
 " gain on inventory 
 as per schedule A. 
 
 900 
 100 
 
 $1000 
 
 00 
 00 
 
 00 
 
APPENDIX OF POEMS. 527 
 
 No. 90. 
 
 ORDER OF SALE. 
 
 [Ante, pp. 320, 327.] 
 
 In the matter or the real estate 
 
 OF , late or , DE- 
 CEASED. 
 
 Date. 
 
 Whereas , executor of the last will and testament of , the 
 
 above named ...'....., deceased, lately presented his petition to the surro- 
 gate of the county of Washington, for authority to mortgage, lease or sell so 
 much of the real estate of the said deceased, as would be necessary to pay the 
 debts of the said deceased, and such proceedings have been had thereon, pur- 
 suant to the statutes in such case made and provided, that the said surrogate 
 is satisfied, upon due examination in the premises, that the said executor has 
 fully complied with the several provisions of the said statutes, and that the 
 debts outstanding against the deceased, as far as the same can be ascertained, 
 and which are valid and subsisting, and are not secured by judgment, mort- 
 gage, or other lion, on the real estate of the said deceased, amount to the sum 
 of $2158.66; and that the personal estate of the said deceased is insufficient 
 to pay his debts; and that the whole of the said personal estate, which could 
 have been applied to the payment of the debts of the said deceased, has been 
 duly applied for that purpose ; and whereas it has been made to appear to the 
 said surrogate, that the moneys required to be raised by the said executor, 
 cannot be raised by mortgage, or lease, advantageously to the said estate, and 
 the said executor has, in conjunction with two sureties, executed a bond to 
 the people of this state, in the manner required by law, which is duly ac- 
 knowledged, approved and filed ;t it is therefore ordered, adjudged and de- 
 creed, and this court, by virtue of the power vested in it, doth order, adjudge 
 and decree, that the said executor sell at pubhc auction or vendue, the follow- 
 ing described real estate of the said deceased, to wit : Piere describe the sev- 
 eral parcels to be sold.] And it is further ordered, that on the said sale the said 
 
 executor be authorized to give such length of credit, not ex- 
 On a cash sale this ,. , . ,,,.,,., 
 
 should be omitted, ceedimg three years, for not more than three-fourths of the pur- 
 
 and it ahoald, on a gj^asg money, as shall seem lest calculated to produce the 
 
 credit sale, be con- "' -^ 
 
 formable to the or- highest price, and shaU secure the moneys for which credit 
 
 e eour . may be given, hy a bond of the purchaser, and hy a mortgage 
 
 Inserted only when of the premises sold. And it is further ordered, that the seo- 
 
 eral tracts of land hereinbefore described, be sold in thefol- 
 
 loioing order, to wit : [here describe the order, stating which 
 
 tract shall be pold &:st,^according to § 20, 2 R. S. 103.] 
 
 And it is further ordered, that before any deed or deeds of the premises 
 
 sold are executed, the said executor make a return of the proceedings had on 
 
528 APPENDIX OP POEMS. 
 
 this order, to the said surrogate, to the end that the said surrogate may exam- 
 ine the said proceedings, and the fairness and legality of the said sale. 
 
 SPECIAL OEDEE, &0. [pp. 320, 327.] 
 
 Same as last to t, and then as follows : 
 
 And whereas it manifestly appears that the said real estate of the said de- 
 ceased is so situated that a part thereof cannot be sold without great preju- 
 dice to the heirs [or devisees, as the case may be] of the said deceased, it is 
 therefore ordered, &c., as in last precedent. 
 
 No. 91. 
 REPORT OP SALE. 
 [Ante, p. 327.] 
 Oneida Surrogate's Court. 
 
 In the mattee of the real estate 
 
 or , late of , DE- 
 CEASED. 
 
 In pursuance of a decretal order of the surrogate of the county of 
 
 aforesaid, bearing date the day of ,1, the subscriber, 
 
 executor of the last will and testament of the above named deceased, did, 
 
 on the day of , at the house of , in 
 
 said county, between the hours of 9 o'clock in the forenoon, and the set- 
 ting of the sun on that day, sell at public vendue, the whole of the premises 
 
 in the said order described, to John Styles, for the sum of , 
 
 which was the highest sum bid for the same. And I do further return, that be- 
 fore the said sale, I caused notice of the time and place thereof to be regularly 
 published, once a week for six weeks, successively in the , a news- 
 paper printed in said county, and a like notice to be posted for six weeks at 
 
 three of the most public places in the the said town of ; and further, 
 
 that the said sale was legally made and fairly conducted, and that a greater 
 sum could not be obtained, on said sale, for the premises aforesaid, than above 
 stated. Dated. 
 
 A. B. 
 
 County of , ss. A. B., executor, &c., above named, being duly 
 
 . sworn, saith that the facts set forth in the foregoing return are true, according 
 to the best of his knowledge and beUef. 
 
 Sworn, &c. A. B. 
 
APPENDIX OP POEMS. 629 
 
 No. 92. 
 
 ORDER CONFIRMING SALE. 
 
 [Page 327.] 
 
 In the Matter of the real estate I 
 
 ow [I^ated. 
 
 On reading and fiKng the return of , executor of the last will and 
 
 testament of the above deceased, and sundry affidavits accompanying the same, 
 
 by which it appears that the said executor did, on the day of , 
 
 in obedience to the order of this court, in the above matter, bearing date the 
 
 day of last, and in pursuance of the statute in such case 
 
 made and provided, sell, at pubUc auction, to one John Styles, for the sum of 
 $1000, the lands and tenements in the said order mentioned, upon the terms 
 particularly mentioned in said report; and it appearing to the surrogate that 
 the said sale was legally made and fairly conducted, and that a greater sum 
 cannot be obtained for said premises than was bid on said sale, it is therefore 
 ordered that the said sale be and the same is hereby confirmed : And it is 
 further ordered that a conveyance of the said premises be made and executed 
 in due form of law, by the said executor, to the said John Styles, his heirs and 
 assigns forever, upon his complying with the terms of sale on his part to be 
 performed : And it is farther ordered that the said executor bring into this 
 office the moneys raised on said sale. 
 
 Note. — The foregoing report and order can be easily varied for a credit sale. 
 
 No. 93. 
 
 BOND ON SALE OF REAL ESTATE. 
 
 [Page 320.] 
 
 Know all men by these presents, that we [the executor or administrator 
 and two sureties,] are held and firmly bound unto the people of the state of 
 New York, in the sum of [double the value of the real estate to be sold,] law- 
 ful money of the United States, to be paid to the said people ; to the which 
 payment, well and truly to be made, we bind ourselves, our and each of our 
 heirs, executors and administrators, jointly and severally, iirmly by these pres- 
 ents. Sealed with our seals and dated this day of , 185. . . 
 
 Whereas an application for authority to sell the real estate of , de- 
 ceased, to pay his debts, is now pending before the surrogate of the county of 
 
 , on the petition of the above bounden , executor of the last 
 
 wUl and testament of the said deceased, now therefore, the condition of this 
 
 obligation is such, that if the said , in case the said surrogate shall 
 
 grant an order of sale of said real estate, or any part thereof, shall pay all the 
 
 67 
 
530 APPENDIX OF FORMS. 
 
 moneys arising from such sale, after deducting the expenses thereof, and shall 
 deliver aU securities taken by him on such sale to the said surrogate, within 
 twenty days after the same shall have been received and taken by him, then 
 this obligation to be void, otherwise to remain in ftiU force and virtue. 
 Sealed and delivered in presence of 
 
 FORM OF EXEMPLIFCATION OF ORDER OF SALE, OR ANY OTHER PROCEEDING. 
 
 The People of the state of New York, by the grace of God, free and inde- 
 pendent: 
 
 [l. s.] To all to whom these presents shall or may come, greeting. 
 
 Know ye, that we having caused the records of our surrogate's court of our 
 county of Washington to be inspected, do find there of record, in the book A, 
 kept in the said court for sales of( real estate, a certain decretal order in the 
 words and figures following, to wit : [Here set out the order of sale, or as the 
 case may be, verbatim, to the end of it, and then add:] 
 
 All which we have caused, by these presents, to be exempUfied, and the seal 
 of our said Surrogate's court to be hereto affixed. 
 
 Witness J. W., surrogate of the said county of W , at S , 
 
 tjais day of , in the year of our Lord, one thousand eight 
 
 hundred and fifty-nine. 
 
 J. W., Surrogate. 
 
 Note. — The order of sale and order confirming it must be set out at length 
 in the deed. The formal words by which it is exemplified under seal, or the 
 seal, need not be so inserted. They are necessary only to authenticate the or- 
 der as e.vidence, and not to give it validity as an order. No order is made 
 imder seal. Another form of caption for the order is the same as in No. 8, 
 with a conclusion — In testimony, &c., as in No. 8, with the seal of office of the 
 surrogate thereto afiixed. Either way is beheved to be valid. 
 
 No. 94. 
 DEED FROM EXECUTOR TO PURCHASER. 
 
 [Ante, p. 329.] 
 
 This indenture made the day of , in the year of our Lord 
 
 one thousand eight hundred and , between , executor of the 
 
 last will and testament of , late of deceased, of the first 
 
 part, and John Styles, of the same place, of the second part : Whereas, at a 
 
 surrogate's court, held for the county of , at the surrogate's office in 
 
 , in said county, on the day of , one thousand 
 
 eight hundred and , before , surrogate of the said county, a 
 
 certain decretal order was made for the sale of the real estate of the said de- 
 ceased, and which said order is in the words and figures following, to wit : 
 [Here copy the order of sale at length.] And whereas, in obedience to said 
 
APPENDIX OP FORMS. 531 
 
 order, and in pursuance of the statute in such case made and provided, the said 
 
 party of the first part did, on the day of , sell at public 
 
 auction, the whole of the premises, in the said order mentioned, to the said 
 
 paity of the second part, for the sum of , and did thereupon duly 
 
 make return of his proceedings ia the premises to the surrogate of the said 
 county ; whereupon, afterwards, to wit, at a surrogate's court held for said 
 
 county, at the surrogate's oflfi.ce inS ,in said county, before , 
 
 surrogate of the said county, on the day of , in the year 
 
 one thousand eight hundred and fifty-nine, another order of the said surrogate's 
 court was made in the words and figures following, to wit : [Here set out the 
 order confirming the sale at length.] 
 
 And whereas the said party of the second part has, in all things, complied with 
 the terms of the said sale, on his part to be performed : Now therefore, this 
 indenture witnesseth, that the said party of the first part for and in considera- 
 tion of the sum of , to him in hand paid by the said party of the second 
 
 part, the receipt whereof is hereby confessed and acknowledged, has granted, 
 bargained and sold, and by these presents doth grant, bargain and sell unto 
 the said party of the second part, his heirs and assigns forever, the lands and 
 tenements, in the said order mentioned, [if part only, set out such as are sold,] 
 together with all and singular the hereditaments and appurtenances thereunto 
 belonging, or in any way appertaining, and the reversion and reversions, remain- 
 der and remainders, rents, issues and profits thereof, and also all the estate, 
 right, title, interest, claim and demand which the said deceased had at the 
 time of his death, of, in and to the said premises : To have and to hold the 
 same to the said party of the second part, his heirs and assigns forever, to the 
 sole and only proper use, benefit and behoof of the said party of the second 
 part, his heirs and assigns forever. In witness whereof, the said party of the 
 first part has hereunto set his hand and seal the day and year in this inden- 
 ture first above written. 
 
 Sealed and delivered in ) ■ [l. s.] 
 
 ] 
 
 presence of 
 
 Note. — This deed should be proved, or acknowledged, and recorded the 
 same as other deeds. 
 
 No. 95. 
 
 OKDER FOR DISTRIBUTION, Ac. 
 
 [Ante, p. 334.] 
 
 In the Matter of the real estate 
 
 OP late of , > Date. 
 
 DECEASED. ' 
 
 
 The avails of the real estate of the deceased, sold under the fctfd^i' heretofore 
 made in this matter, having been brought into court, it is ordered that all pet- 
 
532 APPENDIX OP POEMS. 
 
 sons having any claima or demands against the estate of the deceased, which 
 have not aheady been allowed, exhibit and prove the same before the surro- 
 gate of the county of , at his office, in , in said county, on 
 
 tjig day of next, at ten o'clock in the forenoon : And it 
 
 is further ordered that distribution be made among the creditors of the de- 
 ceased, on the day and at the place aforesaid, or as soon thereafter as the said 
 claims and demands can be examined, and that a copy of this order be published 
 six weeks, successively, in the 
 
 No. 96. 
 
 OEDBB, FOE LEAVE TO EXHIBIT CLAIMS. 
 
 [Ante, p. 334.] 
 
 In the Matter &o. 
 
 ^ Date. 
 
 OF ' 
 
 On filing an affidavit of due publication of a copy of the order made in this 
 
 matter on the day of last, it is ordered that all persona 
 
 having claims against the estate of the deceased which have not already been 
 examined, have leave to exhibit and prove the same. 
 
 No. 97. 
 
 OaDER ALLOWING CLAIMS AND DECRBEINS DISTRIBUTION. 
 
 [Ante, p. 335.] 
 
 In the Matter, ) _ 
 , J, ' y Date. 
 
 &o. &c. ) 
 
 This cause having been brought to a final hearing on the day of 
 
 , and divers persons having claims against the estate of the deceased 
 
 having presented the same for allowance ; whereupon, after hearing the proofs 
 and allegations of the parties, it is ordered, adjudged and decreed, and this 
 court, by virtue of the power vested in it, doth order, adjudge and decree that 
 there is due and owing from the estate of the said deceased to the several per- 
 sons hereinafter in the schedule marked A subjoined to this order mentioned, 
 the sums of money set opposite their names respectively, over and above all 
 discounts, and that the same are valid and subsisting debts against the said 
 estate, not secured by judgment, mortgage or other Hen against the real estate 
 of the said deceased ; t audit is further ordered, that there be allowed and 
 paid out of the avails of the said real estate, sold in pursuance of the order 
 
APPENDIX OP POEMS. 
 
 533 
 
 heretofore made in this matter, to the several persons hereinafter mentioned, 
 for their costs and charges in this matter, the following sums, to wit : 
 
 To A. B., executor, as per bill on file, $15 00 
 
 " " for printer's bill paid by him, 12 00 
 
 " the surrogate, for his fees in this matter, 25 00 
 
 " " for his commissions, 50 00 
 
 " Or. H., attorney of executor taxed bUl on file, 25 00 
 
 $127 00 
 And whereas it appears that the moneys arising fi-om the sale of the said 
 
 real estate amounts to the sum of , and the debts of the said deceased, 
 
 as adjudged to be vaUd and subsisting by the order of this court, bearing date 
 , and by this order, in the aggregate amount to , it is there- 
 fore fiirther ordered, adjudged and decreed, and this court, by virtue of the 
 power vested in it, doth order, adjudged and decree, that so much of the said 
 
 as is necessary to pay the said costs and charges as aforesaid be apphed 
 
 for that purpose, and that the residue be distributed among the said creditors 
 of the said deceased m proportion to their respective debts, according to the 
 schedule hereto annexed marked B, and th^t the same be paid on demand at 
 this of&ce.* 
 
 Schedule A of the claims against the estate of , deceased, adjudged 
 
 by the foregoing order to be valid and subsisting. 
 
 L. M., $25 00 
 
 0. P., 30 00 
 
 $55 00 
 Schedule B of all the claims against the estate of , deceased, ad- 
 judged to be vahd and subsistuig, the whole sum due on each claim respect- 
 ively, and the dividend to which each claimant is entitled out of the avails of 
 the real estate of the deceased, in pursuance of the foregoing order. 
 
 Whole Bum due. 
 
 Dividend. 
 
 Richard Koe, . . . 
 
 John Stiles, 
 
 James Jackson, 
 
 L. M., 
 
 O. P., 
 
 500 
 
 675 
 
 983 
 
 25 
 
 30 
 
 2213 66 
 
 00 
 45 
 21 
 00 
 00 
 
 230 
 
 259 
 
 425 
 
 11 
 
 13 
 
 938 
 
 00 
 69 
 30 
 00 
 00 
 
 99 
 
 No. 98. 
 
 Jf the a/vails of the real estate exceeds the expenses and dehts, strike out the words 
 at the cond/usion of the foregoing order in itdlices, and insert instead thereof, " in 
 payment of," and at the end of the order * add as follows : 
 
 And whereas, it aj)p§ars that A. B. and C. D. were devisees, as tenants in 
 
634 APPENDIX OP PORMS. 
 
 common, under the last will and testament of the said deceased, of lot No, 
 
 2, mentioned in the order of sale made in this matter on the day of 
 
 , and that the said lot sold for the sum of $500, parcel of the said 
 
 , for which the whole of the said real estate of the said deceased was 
 
 sold as aforesaid; and whereas it appears that after paying all the expenses of 
 the said sale, and the valid and subsisting debts against the said estate as 
 aforesaid, there remains the sum of $200, it is therefore ordered, adjudged and 
 decreed, and this court, by virtue of the power vested in it, doth order, adjudge 
 and decree that the sum of $100, parcel of the said $200 be paid in equal parts to 
 the said A. B. and C. D., devisees, as aforesaid. And inasmuch as the residue of 
 the said lands and tenements, sold as aforesaid was not devised by the said 
 will, but descended to the heir at law of the said deceased, it is therefore 
 further ordered that the remaining sum of $100 be paid in equal parts to G-. 
 H. and J. K, heirs at law of the said deceased, pursuant to the statute in such 
 case made and provided. 
 
 No. 99. 
 
 If ihe deceased left a widow entitled to dower in the lands sold, and she elects a 
 gross swm in lieu of dower, add at the t in order, No. 90, as follows : [Ante, 
 p. 334.] 
 
 And it appearing that A. B., widow of the said deceased, is entitled to 
 dower in the lands and tenements sold as aforesaid, and the said A. B., having 
 
 by an instrument in writing, under her hand and seal, bearing date , 
 
 and duly acknowledged in the same manner as deeds entitled to be recorded, 
 consented to accept, in lieu of her dower in the said lands, such sum in gross 
 as shall be deemed, upon the principles of law applicable to annuities, a rea- 
 sonable satisfaction for such claims, which said written consent is on file in 
 this court ; and it appearing that the said A. B. is aged 45 years, and that the 
 whole avails of said sale amount to , it is therefore ordered, ad- 
 judged and decreed, and this court, by virtue of the power vested in it, doth 
 
 order, adjudge and decree, that the said A. B. is entitled to the sum of , 
 
 in gross, as a reasonable satisfaction for said dower, according to the statute in 
 such case made and provided, and that the same be paid to her at this office 
 on demand. 
 
 Note. The residue of the order will require a slight modification where 
 there is a widow's claim for dower. 
 
 No. 100. 
 If the widow does not consent to take a gross swm, the foregoing shovM be mod- 
 ified ojsfoUows : [Ante, p. 335.] 
 
 And it appearing that A. B., widow of the said deceased, is entitled to dower 
 
APPENDIX OP POEMS. 535 
 
 in the lands and tenements sold as aforesaid, it is therefore further ordered 
 
 that the sum of , being one third of the purchase money as aforesaid, 
 
 be invested in permanent securities on annual interest, in the name of office 
 of the said surrogate, and that the said interest be paid to the said A. B. an- 
 nually during her life. 
 
 No. 101. 
 NOTICE TO THE WIDOW TO ELECT. 
 [Ante, p. 334.] 
 In the matter of the real ) 
 
 ESTATE OF, &C. f 
 
 To A. B., widow of the above deceased. Tou are hereby notified and re- 
 quired to elect whether you will accept such sum, in gross, as shall be deemed, 
 upon the principles of law applicable to annuities, a reasonable satisfaction of 
 your claim for dower in the lands of the above deceased, in lieu of your said 
 dower ; and you are notified so to elect before the surrogate of the county of 
 
 Washington, at his office in on the day of [the day 
 
 appointed for distribution.] Dated, &c. 
 
 Signed by the Executor, &c. 
 
 No. 102. 
 
 EOEM OF WIDOW'S CONSENT TO ACCEPT A GROSS SUM IS LIEU OF 
 HER DOWER. 
 
 [2 R. S. 106, § 36. 2 Comst. 245. Ante, p. 333.] 
 
 In THE MATTER OF THE REAL ESTATE 
 OF , LATE OF , DE- 
 CEASED. 
 
 Whereas certain lands and tenements of the said deceased, in which the un- 
 dersigned is entitled to dower as the widow of the said deceased, have been- 
 recently sold by virtue of an order of the surrogate of the county of Washing- 
 ton, in this matter, and which said lands and tenements are bounded as fol- 
 lows, to wit: ; and whereas the moneys arising from the said sale 
 
 have been brought into the said surrogate's court for distribution, now there- 
 fore, know all men by these presents, that I, A. B., the widow of the said de- 
 ceased, do by these presents consent to accept in lieu of my said dower in the 
 lands and tenements aforesaid, such sum in gross, as shall be deemed, upon 
 the principles of law applicable to annuities, a reasonable satisfaction for my 
 said dower. In witness whereof I have hereto set my hand and seal, this 
 day of , A. D. 185 . 
 
 Sealed and deKvered in ) A. B. (l. s.) 
 
 presence of ) 
 
536 
 
 APPENDIX OP FORMS. 
 
 [To be acknowledged or proved in the same manner as deeds entitled to be 
 recorded. The acknowledgment, of course, must be taken before a judge or 
 commissioner; and if the dower has been previously assigned to the widow, 
 it cannot be sold, but the purchaser takes the land subject to her dower. 
 2 Comst. 245.] 
 
 No. 103. 
 
 ANNUITY TABLE. 
 
 [Ante, p. 334] 
 
 A table corresponding with the Northampton tables referred to in the rules 
 
 of the supreme court, showing the value of an annuity of one dollar, at six per 
 
 cent, on a single life, at any age from one year to ninety-four, inclusive. 
 
 Age. 
 
 No. of years 
 purchaee the an- 
 nuity is wortll. 
 
 Age. 
 
 No. of years 
 purchase the an- 
 nuity is worth. 
 
 Age. 
 
 No. of years 
 purchase the an- 
 nuity is worth. 
 
 Age. 
 
 No. of years 
 purchase the an- 
 nuity is worth. 
 
 1 
 
 10.107 
 
 25 
 
 12.063 
 
 49 
 
 9.563 
 
 73 
 
 4.781 
 
 2 
 
 11.724 
 
 26 
 
 11.992 
 
 50 
 
 9.417 
 
 74 
 
 4.565 
 
 3 
 
 12.348 
 
 27 
 
 11.917 
 
 51 
 
 9.273 
 
 75 
 
 4.354 
 
 4 
 
 12.769 
 
 28 
 
 11.841 
 
 52 
 
 9.129 
 
 76 
 
 4.154 
 
 5 
 
 12.962 
 
 29 
 
 11.763 
 
 53 
 
 8.980 
 
 77 
 
 3.952 
 
 6 
 
 13.156 
 
 30 
 
 11.682 
 
 54 
 
 8.827 
 
 78 
 
 3.742 
 
 7 
 
 13.275 
 
 31 
 
 11.598 
 
 55 
 
 8.670 
 
 79 
 
 3.514 
 
 8 
 
 13.337 
 
 32 
 
 11.512 
 
 56 
 
 8.509 
 
 80 
 
 3.281 
 
 9 
 
 13.335 
 
 33 
 
 11.423 
 
 57 
 
 8.343 
 
 81 
 
 3.156 
 
 10 
 
 13.285 
 
 34 
 
 11.331 
 
 58 
 
 8.173 
 
 82 
 
 2.926 
 
 11 
 
 13.212 
 
 35 
 
 11.236 
 
 59 
 
 7.999 
 
 83 
 
 2.713 
 
 12 
 
 13.130 
 
 36 
 
 11.137 
 
 60 
 
 7.820 
 
 84 
 
 2.551 
 
 13 
 
 13.044 
 
 37 
 
 11.035 
 
 61 
 
 7.637 
 
 85 
 
 2.402 
 
 14 
 
 12.953 
 
 38 
 
 10.929 
 
 62 
 
 7.449 
 
 86 
 
 2.266 
 
 15 
 
 12.857 
 
 39 
 
 10.819 
 
 63 
 
 7.253 
 
 87 
 
 2.138 
 
 16 
 
 12.755 
 
 40 
 
 10.705 
 
 64 
 
 7.052 
 
 88 
 
 2.031 
 
 17 
 
 12.655 
 
 41 
 
 10.589 
 
 65 
 
 6.841 
 
 89 
 
 1.882 
 
 18 
 
 12.562 
 
 42 
 
 10.473 
 
 66 
 
 6.625 
 
 90 
 
 1.689 
 
 19 
 
 12.477 
 
 43 
 
 10.356 
 
 67 
 
 6.405 
 
 91 
 
 1.422 
 
 20 
 
 12.398 
 
 44 
 
 , 10.235 
 
 68 
 
 6.179 
 
 92 
 
 1.136 
 
 21 
 
 12.329 
 
 45 
 
 10.110 
 
 69 
 
 5.949 
 
 93 
 
 806 
 
 22 
 
 12.265 
 
 46 
 
 9.980 
 
 70 
 
 5.716 
 
 94 
 
 518 
 
 23 
 
 12.200 
 
 47 
 
 9.846 
 
 71 
 
 5.479 
 
 
 
 24 
 
 12.132 
 
 48 
 
 9.707 
 
 72 
 
 5.241 
 
 
 
 RULE FOE COMPUTIKG THE VALUE OF THE LIFE ESTATE OR ANNXJITY'. 
 
 Calculate the interest at 6 per cent for one year, upon the sum to the in- 
 come of which the person is entitled. Multiply this interest by the number 
 of years purchase set opposite the person's age in the table, and the product 
 is the gross value of the life estate of such person in said sum, 
 
 EXAMPLE. 
 
 Suppose a widow's age is 37; and she is entitled to dower in real estate 
 worth $350.75. One-third of this is $H6.91f. Interest on $116.91, one year 
 
APPENDIX OP FORMS. 537 
 
 at 6 per cent (as fixed by the 76th rule) is $7.01. The number of years pur- 
 chase which an annuity of one dollar is worth, at the age of 37, as appears by 
 the table, is 11 years and y|f j parts of a year, which multiplied by $7.01, the 
 income for one year, gives $77.35, and a fraction, as the gross value of her 
 right of dower. 
 
 Por the rule to compute the present value of an inchoate or contingent 
 right of dower, see Jackson v. Edwards, 7 Paige, 480 ; McKean's Pr. L. Tables, 
 25, § 4; Hendry's Ann. Tables, 87, Proh. 4. 
 
 No. 104. 
 
 PETITION TO SELL ADDITIONAL PAKCBL OF THE REAL ESTATE OF THE 
 
 DECEASED, WHEN THE AVAILS OP THE FIRST SALE 
 
 PROVE INSUFFICIENT. 
 
 [Ante, p. 330.] 
 
 To the surrogate of the county of 
 
 The petition of A. B., executor of the last wUl and testament of C. D., late 
 of the town of , deceased, respectfully showeth : 
 
 That your petitioner lately presented his petition to the surrogate of the 
 said county, in due form of law, for authority to mortgage, lease or sell, so 
 inuch of the real estate of the said deceased as would be necessary to pay his 
 debts ; and such proceedings were thereupon had, by the said surrogate, that 
 
 afterwards, to wit, at a surrogate's court held, &c , the said surrogate 
 
 being satisfied, upon due examination in the premises, that the said executor 
 had fully comphed with the several provisions of the statute in such case made 
 and provided, and that the debts outstanding against the said deceased, as far 
 as the same could be ascertained, and which were vaUd and subsisting, and 
 not secured by judgment, mortgage or other Ken on the real estate of the said 
 deceased, amounted to , and that the personal estate of the said de- 
 ceased was insufficient to pay his debts, and that the whole of the said personal 
 estate which could have been apphed to the payment of the debts of the said 
 deceased had been apphed for that purpose ; it was thereupon ordered, ad- 
 judged and decreed, by the said court, that the said executor sell at pubho 
 auction or vendue, the premises therein mentioned and described, and that he 
 make return of his proceedings to the said court, according to law. 
 
 And your petitioner further, showeth, that the said executor, in pursuance 
 of the said order, and by virtue of the statute in such case made and provided, 
 
 on the day of . , , sold at public auction or vendue, the lands 
 
 and tenements in the said order mentioned, to for the sum of , 
 
 being the highest sum bid for the same, and did thereupon, on the 
 
 day of , make a return of his said proceedings to the said surrogate ; 
 
 and the said surrogate did, by an order bearing date , confirm 
 
 the said sale, and direct that a deed of the said premises be executed to the 
 purchaser thereof, in pursuance of the terms of said sale. 
 68 
 
538 APPENDIX OP POEMS. 
 
 And your petitioner fiirther showeth, that a deed was accordingly executed 
 by your petitioner, according to the in part last mentioned recited order, and 
 the money arising from the said sale was duly brought into court for distribu- 
 tion. And your petitioner fiirther showeth, that after the payment of the 
 costs and charges in the said matter, the residue of the said money was dis- 
 tributed, by the said surrogate, among the creditors of the said deceased, 
 whose debts were adjudged by. the said court to be vaKd and subsisting, as far 
 
 forth as the same would extend, leaving a balance of stUl due and 
 
 owing to the several persons whose debts were allowed as aforesaid, accord- 
 ing to the schedule annexed to the order in this matter, dated. .... 
 
 And your petitioner fiirther showeth, that the said deceased died seised, as 
 is alleged, of the following described premises, not sold under the former order 
 in this matter, and which said premises are situate in 
 
 [Set out description, value, name of occupant, devisee or heir, as in original 
 petition, and conclude with the following prayer :] 
 
 Tour petitioner therefore prays that authority may be granted to him, pur- 
 suant to the statute in such case made and provided, to mortgage, lease or sell 
 so much of the said real estate as wiU be necessary to pay the debts of the 
 said deceased, estabUshed as aforesaid, and which stUl remain due and unpaid, 
 together with the costs of this proceeding, and your petitioner will ever 
 
 pray, &c. 
 
 A. B. 
 Affidavit of the truth thereof, as in the first petition. 
 
 Bond of the executor is the same as in the first order, with a penalty double 
 the value of the land. If the persons in possession were notified, under the 
 first application, notice of this appUoation need not, it is conceived, be given. 
 But if they were not then notified, and the premises were not embraced in 
 the first petition, it is believed that a notice to show cause should be served 
 as on an original application ; except that the creditors need not be called on 
 to exhibit their claims, &c. 
 
 No. 105. 
 
 FOE THE SALE OF ADDITIONAL PARCEL OF LAND. 
 
 [Ante, p. 330.] 
 
 In the Matter op the keal estate _ 
 
 > Date. 
 OJ- I 
 
 OF 
 
 Whereas, heretofore, on the petition of A. B., executor of the last will and 
 
 testament of , deceased, praying for an order granting authority to 
 
 mortgage, lease or sell so much of the real estate of the said deceased as would 
 be sufacient to pay his debts, pursuant to the statute in such case made and 
 provided, such proceedmgs were thereupon had that the said surrogate's court 
 did, on the day of , order, adjudge, and decree that certain 
 
APPENDIX OF FOEMS. 539 
 
 lands and tenements of the said deceased, therein mentioned, be sold for the 
 payment of the debts of the said deceased; and whereas the said executor has, 
 by his petition, duly verified by afi&davit, set forth, that in pursuance of the 
 
 said order, he caused the said premises to be duly sold to , for the 
 
 sum of ; that the said sale was duly confirmed by this court, by an 
 
 order bearing date , and that the avails of the said sale have been 
 
 duly distributed, by the said surrogate, among the creditors of the said deceased, 
 whose claims have been heretofore allowed in proportion to their respective 
 demands ; and there still remains due and unpaid to the said respective credit- 
 ors a large sum of money, aimounting in the aggregate to the sum of , 
 
 which he has no assets in his hands to pay, and that there is real estate of 
 which the said deceased died seised, remaining in this state unsold, and pray- 
 ing that so much thereof may be ordered to be mortgaged, leased or sold as 
 will be be necessary to pay the said debts; and whereas it appears by the affi- 
 davit of , and by inspecting the record of the said surrogate's office, 
 
 that the facts above set forth are true, it is therefore ordered, adjudged and 
 decreed, [as in a common order of sale.] 
 
 No. 106. 
 
 ORDER THAT EXECUTOR &c. GIVE BAIL, PREPARATORY TO MAKING 
 ORDER OF SALE. 
 
 [Ante, p. 330.] 
 
 ■1 
 
 In the Matter of the keal estate 
 
 of , . . , late of 
 
 deceased. 
 
 Date. 
 
 It appearing by the records and files of this court, that the real estate of the 
 
 deceased is of the value of , and that it is necessary to have the same 
 
 sold for the payment of the debts of the deceased, it is therefore ordered that 
 , executor of the last wiU and testament of the said deceased, in con- 
 junction with two sufficient sureties, to be approved of by the surrogate, exe- 
 cute a bond to the people of this state, in the penal sum of [double the value 
 
 of the real estate,] conditioned that the said will pay aU the moneys 
 
 arising from the sale of the real estate of the deceased, and deliver all securi- 
 ties taken by him on such sale, to the said surrogate, within twenty days after 
 the same shall have been received and taken. 
 
640 APPENDIX OP POEMS. 
 
 No. 107. 
 
 ORDER APPOINTING A DISINTERESTED FREEHOLDER TO CONDUCT 
 
 A SALE, Ac. 
 
 [Ante, p. 320.] 
 
 ■1: 
 
 In the Matter of the keal estate' , 
 
 )■ Date. 
 
 OF , DECEASED. 
 
 On filing the petition of , a creditor of the deceased, setting forth 
 
 that , executor, has refused and stiU refuses to execute to the people 
 
 of this state the bond required by the order of this court, bearing date the 
 
 day of , and nominating a disinterested freeholder, 
 
 to make the sale of the real estate of the said deceased, and on filing an affi- 
 davit of the truth of the facts in the said petition set forth, it is ordered that 
 
 the said be appointed to make the sale of the real estate of the said 
 
 deceased. 
 
 No. 108. 
 
 THE APPOINTMENT. 
 
 [Ante, p. 320.] 
 
 The People of the state of New York, by the grace of God, free and inde- 
 
 [l. S.J pendent : 
 
 Whereas, , executor of the last will and testament of , 
 
 late of , deceased, lately presented a petition to our surrogate of our 
 
 county of W , for authority to mortgage, lease or sell so much of the 
 
 real estate of the said deceased as would be necessary to pay his debts ; and 
 such proceedings have been thereupon had, in our said surrogate's court, that 
 the said executor has been required, in conjunction with two sureties to be 
 approved of by the surrogate, to execute a bond to the people of this state in 
 
 the penal sum of ,. conditioned that the said executor will pay all 
 
 moneys arising from the sale of the real estate of the deceased, after deducting 
 the expenses thereof, and deliver all securities taken by him on such sale to the 
 surrogate, within twenty days after the same shall have been received and 
 taken by him ; and the said executor has neglected and refused td execute such 
 
 bond; and , a creditor of the said deceased, has appUed to the said 
 
 surrogate, for relief in the premises : Now therefore, be it known, that in pur- 
 suance of the statute in such case made and provided, and of an order of the 
 said surrogate's court, duly made and entered, we have constituted and appoint- 
 ed, and by these presents do constitute and appoint , a disinterested 
 
 freeholder, to make the sale of the real estate of the said deceased in the place 
 of the said executor, hereby vesting in the said , upon his executing 
 
APPENDIX OF FORMS. 541 
 
 such bond as is required by law, all the power and authority of an executor 
 of the last will and testament of the said deceased, in relation to the sale of 
 the real estate of the said deceased. 
 
 In testimony whereof, we have caused the seal of office of our said surrogate 
 to be hereto afiSxed. 
 
 Witness , surrogate of our said county, at , this 
 
 day of , in the year of our Lord 
 
 A. B. 
 
 FORMS IN RELATION TO GUARDIANSHIP. 
 [Ante, p. 443.] 
 
 No. 109. 
 
 PETITION FOR THE APPOINTMENT OF A GUARDIAN BY A MINOR OF 
 THE AGE OF 14 AND UNDER 21. 
 
 [Ante, p. 454.] 
 
 To the surrogate of the county of Washington. 
 
 The petition of A. B. respectfully showeth : 
 
 That your petitioner is a minor under the age of twenty-one years and 
 above the age of fourteen years, to wit : of the age of fifteen years and six 
 months, as he verily believes ; that your petitioner is a resident of the town of 
 Salem, in the county aforesaid, and is the son of 0. D., late of the same place, 
 
 deceased ; that the said 0. D. departed this life on or about the day 
 
 of , without having appointed, either by deed or will, any guardian 
 
 for your petitioner, to his knowledge or behef. That your petitioner is seised 
 of real estate of the annual value of sixty dollars, and is possessed of personal 
 estate of the value of $2000, as he is informed and believes ; that your peti- 
 tioner is desirous that a guardian be appointed of his person and estate during 
 
 his minority, and for that purpose nominates E. F., of the town of , 
 
 in the county of , to be such guardian. 
 
 Tour petitioner states that the said E. F. is a suitable person to be appointed 
 such guardian ; that he has consented to act in that capacity, if appointed, and 
 to give the requisite security. 
 
 Your petitioner therefore prays that the said surrogate wiU inquire into the 
 
 circumstances above set forth, and grant the prayer of the said petition. 
 
 Dated. 
 
 A. B. 
 
 Washington covmty, ss. &. H., being duly sworn, saith that he is acquainted 
 with the above named A, B., and was present and saw him subscribe his name 
 to the foregoing petition. 
 
 Sworn, &c. ' G. H. 
 
642 APPENDIX OP POEMS. 
 
 No. 110. 
 
 CONSENT OP GUAEDIAN. 
 [Ante, p. 455.] 
 
 I hereby consent to become guardian of the person and estate of A. B., the 
 minor in the foregoing petition named, in case I should be appointed for that 
 purpose. Dated, 
 
 In presence of E. P. 
 
 L. M. 
 
 Washmgton coimty, ss. L. M., being duly sworn, saith that he is acquainted 
 with E. P., in the foregoing petition named, and was present and saw him 
 subscribe his name to the above consent. 
 
 Sworn, &c. L. M. 
 
 No. 111. 
 
 AFFIDAVIT OP MINOK'S PROPERTY. 
 
 [Ante, p. 455.] 
 
 Washington eornity, ss. 0. P., being duly sworn, saith that he is acquainted 
 with A. B., the minor named in the petition hereto annexed ; that the said 
 
 A. B. is reputed to be the son of C. D., late of , deceased, and to be of 
 
 the age in the said petition set forth ; and this deponent further saith, that the 
 
 said A. B. is a resident of , in the said county of Washington; that 
 
 he is seised in fee simple, as your petitioner believes, of a certain farm situate 
 
 in , in said county, containing about 100 acres of land, on which 
 
 there is a dwelUng house, two barns and necessary out buildings ; that the 
 said farm is worth about one thousand dollars, and the rents thereof are about 
 sixty dollars a year. That the said A. B. is possessed of a personal property 
 of the value of two thousand dollars ; that the said personal property is com- 
 posed of the following items, to wit : 
 
 Ten shares in the Bank of A., worth $250 00 
 
 A bond and mortgage executed by B., on which is due and 
 
 well secured 750 00 
 
 Ten cows, worth 150 00 
 
 One hundred sheep, 200 00 •-■ 
 
 Promissory notes and accounts to the amormt of 500 00 
 
 And household furniture of the value of 150 00 
 
 $2000 00 
 That some of the notes and accounts are of a doubtful character, and remain 
 uncollected in the hands of the administrators of his father's estate. That the 
 residue of the said personal property is also in the hands of the said adminis- 
 
APPENDIX OF POEMS. 643 
 
 trators, who are irnll/ing to ddiver it over to the legal guardmn of the said A. B. 
 That this deponent is acquainted with E. P., the person nominated by the 
 said minor as guardian. He is uncle of the said A. B., a man of fair character, 
 and in good circumstances in life, and a proper and suitable person to be such 
 guardian in the opinion of this deponent. 
 
 Sworn in open court, &c. 0. P. 
 
 Note. If the person who proves the circumstances of the minor saw the 
 petition and consent executed, the other afSdayits may be omitted, and the 
 fact of execution be inserted in the above. 
 
 No. 112. 
 
 ORDER FOR THE APPOINTMENT OF GUARDIAN TO BE ENTERED IN 
 MINUTE BOOK. 
 
 [Ante, p. 455.] 
 
 <■ June 10, 1859. 
 
 In the Matter or the G-uaedian- 
 
 SmP OF THE person AND ESTATE 
 or A. B., A MINOR. 
 
 On reading and filing a petition of A. B., a minor, setting forth that he is 
 
 the son of , late of , deceased, and is aged fifteen years and 
 
 six months, and is a resident of , in said county, and is seised and 
 
 possessed of certain real and personal property therein mentioned, and nomi- 
 nating E. P., of , to be appointed guardian of the person and estate 
 
 of the said minor ; and on reading and filing the consent in writing of the said 
 B. P. to act as such guardian, if appointed ; and the afildavit of 0. P. annexed 
 to the said petition, setting forth the circumstances of the said minor : it is 
 ordered that the said B. P. be appointed guardian of the person and estate of 
 the said A. B. during his minority, on his entering inta a bond to the said 
 minor, with sufficient security, to be approved of by the surrogate, in the penal 
 
 sum of ; conditioned that the said E. P. will faithfully in all things 
 
 discharge the duty of a guardian to the said minor, according to law, and that 
 he will render a true and just account of all moneys and property received by 
 him, and of the application thereof, and of his guardianship in all respects, to 
 any court having cogmzamce thereof when thereunto required. 
 
544 APPENDIX OP POEMS. 
 
 No. 113. 
 
 BOND OP GUAKDIAN. 
 
 [Ante, p. 455.] 
 
 Know all men by these presents, that we , of , are held 
 
 and firmly bound unto , of , a minor, in the sum of , 
 
 lawful money of the United States, to be paid to the said , his cer- 
 tain executors, administrators or assigns, and to which payment, well and 
 truly to be made, we bind ourselves, our and each of our heirs, executors and 
 admiaistrators, jointly and severally, firmly by these presents. 
 
 Sealed with our seals, and dated the day of , 1859. 
 
 The condition of this obligation is such, that if the above bounden 
 
 shall faithfully in all things discharge the duty of a guardian to the above 
 
 named , minor, according to law, and shall render a true and just 
 
 account of all moneys and property received by him, and of the apphcation 
 thereof, and of his guardianship in all respects, to any court having cognizance 
 thereof, when thereunto required, then this obligation to be void, otherwise 
 in full force and virtue. 
 Sealed and deUvered in A. B. [l. a.] 
 
 presence of C. D. [l. s.] 
 
 To be proved or acknowledged as a deed. (See Acknowledgment to Bond, 
 Appendix No. 40.) 
 
 Affidavit of justification, as in No. 40. 
 
 No. 114. 
 
 ORDER FOE THE APPOINTMENT ON FILING BOND, 4c. 
 
 [Ante, p. 455.] 
 
 In the Matter of the gtiaedian- 
 
 SmP OF THE person AND ESTATE OF 
 A. B., A MINOR. 
 
 ■ April 4, 1^59. 
 
 E. P. having produced the bond required by the former order in this matter 
 duly executed with adequate security, and on filing the said bond and the affi- 
 davit of justification thereto annexed, it is ordered that the same be approved, 
 and that the said E. P. be appointed guardian of the person and estate of the 
 said A. B., dmrimg his mmority, and that the appointment be forthwith made 
 out and recorded in the book provided for that purpose. 
 
APPENDIX OP POEMS. 545 
 
 No. 115. 
 LETTERS OF GUARDIANSHIP. 
 [Ante, p. 456.] 
 The People of the state of New York, by the grace of God, free and 
 
 [l. s.] independent: 
 
 To of , send greeting. 
 
 Whereas an application in due form of law has been made to our surrogate 
 of our county of , to have you the said appointed the guar- 
 dian of the person and estate of , a minor residing in , of 
 
 the age of fourteen years ; and whereas you, the said , have consented 
 
 to become such guardian, and have duly executed and delivered a bond, pur- 
 suant to Jaw, for the faithful discharge of your duty as such guardian, and we 
 
 being satisfied of the sufficiency of said bond, and that you, the said , 
 
 are a good and respectable person, and in every respect competent to have the 
 custody of the person and estate of said minor, do, by these presents, alow, 
 constitute and appoint you, the said , the general guardian of the per- 
 son and estate of said minor, during his minority, hereby requiring you, the 
 said guardian, to do and perform all the matters and things required by law 
 of such guardian, and to render an account of all moneys and property received 
 by you, and of the appKoation thereof, and of your guardianship in all respects, 
 to any court having cognizance thereof, when thereunto required. 
 
 In testimony, &o. 
 
 Witness, &c. 
 
 Annexed to the letter is the following extract from an act of the legislature 
 of New York, concerning executors, administrators, guardians, wards, &c., 
 passed May 16, 1837, page 534: 
 
 " § 57. Every general guardian appointed by the surrogate shall, annually 
 after such appointment, so long as any part of the estate or the income or pro- 
 ceeds thereof remain in his hands or under his control, file in the office of the sur- 
 rogate appointing him, an inventory and account, under oath, of his guardianship 
 and of the amount of property received by him and remaining in his hands, or 
 invested by him, and the manner and nature of such investment and his re- 
 ceipts and expenditures in form of debtor and creditor." 
 
 No. 116. 
 
 PETITION ON BEHALF OF AN INFANT UNDER FOURTEEN TEARS OP AGE 
 POR APPOINTMENT OF GUARDIAN. 
 
 To the surrogate of the county of Oneida. 
 
 The petition of X. Y. respectfully showeth : 
 
 That A. B., late of the town of Vernon, in said county, deceased, departed 
 
 this life on or about the day of last, without having ap- 
 
 69 
 
546 APPENDIX OP FORMS. 
 
 pointed by deed or will any guardian for his children, to the knowledge or be- 
 lief of your petitioner : That he left four children under the age of fourteen 
 
 years, towit: ,oftheageof ; , of the age of 
 
 ; , of the age of ; and , of the age of 
 
 : all of whom are residents of the town of V., in said county : That 
 
 the said infants are seised in fee simple as tenants in common of a certain farm 
 situate in V., in said county, of the value of one thousand dollars, the annual 
 rents and profits of which are about sixty dollars ; and are also entitled to a 
 very considerable personal estate, amounting to about the sum of one thousand 
 dollars each. 
 
 Your petitioner further showeth, that the relatives of the said infants resid- 
 ing in the said county of Oneida, are Sarah, the mother of the said infants, with 
 whom they now reside at V., in said county, A. B. and C. D., paternal uncles, 
 residing in Utica, in said county, G. H. and J. K., maternal uncles, residing in 
 Rome, in said county ; that L. M. and N. 0. are cousins of the said infants and 
 reside at the same place; that they have no grandfather now living or other 
 relatives residing in said county, to the knowledge of your petitioner. Tour 
 
 petitioner prays that may be appointed guardian of the person and 
 
 estate of the said infants until they arrive at the age of fourteen years, respect- 
 ively, and vmtil another guardian shall be appointed ; and for that purpose, 
 that a day may be assigned for the hearing of the said matter, and that an 
 order be entered directing notice to be given of such hearing to the relatives 
 of the said infants residing in the said county. 
 
 Tour petitioner further states that is a suitable person to be ap- 
 pointed such guardian, and has consented to act as such, if appointed, and to 
 give the requisite security. Tour petitioner therefore prays that the surrogate 
 will take the above matter into consideration and grant the prayer of the pe- 
 tition. 
 
 Dated. X. T. 
 
 OnMa covmty, ss: The above petitioner being duly sworn, saith that 
 the matters of fact set forth in the foregoing petition are true, according to the 
 best of his knowledge and belief. 
 
 Sworn, &c. X. Y. 
 
 Consent of guardian same as for minor above. No. 110. 
 
APPENDIX OP POEMS. S47 
 
 No. 117. 
 ORDER ASSIGNIN9 A DAY, Ac. 
 
 In the Matter oi' A. B., C. D., E. 
 
 P. AND Q-. H., INFANTS UNDEK THE 
 AGE OF FOUKTEEN TEARS, AND CHIL- 
 DREN OF , DECEASED. 
 
 June 10, 1859. 
 
 On filing the petition of X. Y. in behalf of the above named infants, under 
 the age of fourteen years, and residents of the said county, praying for the ap- 
 pointment of a guardian for them, respectively, it is ordered that Monday, the 
 day of , instant, be assigned for the hearing the said mat- 
 ter, at the surrogate's office, in , in said county, at ten o'clock A. M. 
 
 of the said day, and that at least six days notice, in writing, be given by the 
 petitioner to Sarah, the mother, and A. B., &c., [naming the relatives as in the 
 petition,] of the time and place of the said hearing. 
 
 ITo. 118. 
 
 Oneida Surrogate's CovH. 
 
 \ 
 
 In the Matter of A. B., 0. D., E. 
 
 P. AND Gr. H., INFANTS UNDER THE 
 AGE OF FOURTEEN TEARS, AND CHIL- 
 DREN OF , DE- 
 CEASED. 
 
 Take notice, that a petition has been presented to the surrogate of the county 
 
 of Oneida for the appointment of , as guardian of the person and 
 
 estate of the above named infants until they respectively arrive at the of four- 
 teen years, and untE another guardian is appointed for them, and that the said 
 
 surrogate has assigned the day of i ;, at 10 o'clock A. M., at 
 
 his oflice in , for hearing the said matter; 
 
 Dated. X. T. 
 
 To [the relatives, &c., naming them.] 
 
548 APPENDIX OP POEMS. 
 
 No. 119. 
 
 AFFIDAVIT OF SERVICE. 
 [Usual Porm.] 
 
 ORDER FOE LEAVE, &C. 
 
 In the Matter of A. B., &c., 
 [as before.] 
 
 On reading and filing the aifidavit of X. Y., setting forth that he did, on the 
 
 day of , personally serve a notice, in vpritdng, subscribed by 
 
 him on , all the relatives of the above named infants vrho reside in 
 
 the county of Oneida, on whom this court directed notice of the present apph- 
 cation to be served, it is ordered that leave be given, to all persons interested, 
 to exhibit their proofs and allegations. 
 
 Affidavit of infants' circumstances, same as No. Ill, as far as the facts are ap- 
 phcable. 
 
 No. 120. 
 ORDER FOR APPOINTMENT OF flUARDIAN. 
 
 In the Matter of the Gtuardinship 
 
 OF THE person AND ESTATE OF A. 
 B., 0. D., E. P. AND &. H., INFANTS 
 UNDER THE AGE OF FOURTEEN TEARS, 
 AND CHILDREN OF , DECEASED. 
 
 June 10, 1859. 
 
 On filing the proofs taken on the appKcation in this matter, by virhich it ap- 
 pears that the above named infants are under the age of fourteen years, and 
 are of the ages following, to wit : The said A. B. of the age of thirteen years 
 
 and four days, &o., &c. ; that they are the children of , deceased, and 
 
 are residents in , in the county of ; that they are seised as 
 
 tenants in common of certain real estate of the annual value of one hundred 
 
 dollars, and are possessed of personal estate of the value of ; and it 
 
 appearing that is a suitable person to be appointed guardian, and has 
 
 consented to act as such, if appoiifted, it is therefore ordered that the said .... 
 be appointed guardian of the persons and estate of the said infants, respective- 
 ly, until they arrive at the age of fourteen years, and until other guardi- 
 ans be appointed, on his entering into a bond to the said infants, respectively, 
 as follows, to wit : To the said A. B., in the penal sum of $5000 ; to the said 
 0. D. in the penal sum of $5500, &c., &c., with sufficient security in each of said 
 
 bonds, to be apptbved of by the surrogate, conditioned that the said 
 
 wUl faithfully, in all things, discharge the duties of a guardian to the said in- 
 fants, respectively, tecordiiig to law, and render a true and just account of all 
 
APPENDIX OP FORMS. 549 
 
 moneys and property received by him, and of the application thereof, and of 
 his guardianship in all respects, to any court having cognizance thereof, when 
 thereunto required. 
 
 No. 121. 
 BOND, ACKNOWLEDGMENT AND AFFIDAVIT OF JUSTIFICATION. 
 The same as in No. 113. 
 
 No. 122. 
 ORDER FOR APPOINTMENT ON FILING BOND. 
 
 In the Matter of the Guardian- 
 ship OF THE PERSON AND ESTATE 
 
 OF A. B., &0. &0. [as before.] 
 
 > Date. 
 
 Same as on the appointment of guardian for a minor, except the concludiug 
 part, in vfhioh, instead of dwrimg their minority, say, " until they respectively 
 arrive at the age of fourteen years, and until another guardian is appointed for 
 them respectively." 
 
 Note. The letters of guardianship are the same as No. 115, except the in- 
 fant is described as under the age of fourteen, to wit : of [state the exact age ;] 
 and instead of appointing him guardian during the minority, it will be, until 
 he shall arrive at the age of fourteen years, and until another guar^an shall be 
 appointed. 
 
 No. 123. 
 PETITION TO REMOVE A GUARDIAN. 
 [Ante, p. 460.] 
 
 To the surrogate of the county of 
 
 The petition of , of the town of , respectfully showeth: 
 
 That on or about the day of , in the year of our Lord 
 
 , one A. B. was duly appointed by the surrogate of the said county 
 
 guardian of the person and estate of 0. D., a minor under the age of twenty- 
 one years, to wit, of the age of , or thereabouts ; that the said A. B., 
 
 immediately aftei; his said appointment, possessed himself of the personal effects 
 of the said minor, and assumed the control of the rents and profits of the real 
 estate of the said minor, as your petitioner is informed and believes ; and your 
 petitioner further showeth, that since his said appointment the said A. B. has 
 become incompetent, in the opinion of your petitioner, and an unsuitable per- 
 son to perform the duties of such guardian, by reason of the habitual intern- 
 
650 APPENDIX OP FORMS. 
 
 perance of the said A. B., in the use of ardent spirits or other intoxicating 
 drink, [or, that the said A. B. has wasted and continues to waste and mis- 
 apply the estate of the said minor, (or other complaint, as the case may be ;)] 
 that your petitioner is an uncle of the said minor, and as such feels an interest 
 in his welfare, [or, that your petitioner is one of the sureties for the said A. B. 
 as such guardian as aforesaid, and is apprehensive that he shall sustain dam- 
 ages by reason of the misconduct of the said A. B. in his guardianship.] Your 
 petitioner therefore prays that the said surrogate will examine the premises, 
 and that a citation may be issued to the said A. B. requiring him to appear 
 before the said surrogate at a day and place therein to be mentioned, to show 
 cause why he should not be removed from his guardianship; and your peti- 
 tioner prays for such other relief in the premises as the nature of the case shall 
 require. 
 And your petitioner will ever pray, &c. 
 
 Jurat, as in No. 6. 
 
 (Signed,) L. M. 
 
 No. 124. 
 OBDBK FOR CITATION. 
 
 In the Matter of the Gctakdian- 
 ship of the person and estate 
 of , a minor. 
 
 Date. 
 
 On reading and fihng the petition of L. M., a relation of C. D., a minor, 
 setting forth, among other things, that A. B., heretofore appointed guardian 
 of the person and estate of the said minor, has become intemperate, [or as the 
 caSe is,] and praying that the said A. B. may be removed from his said guard- 
 ianship ; and the surrogate, on examination, being satisfied of the probable 
 truth of the said complaint, it is therefore ordered that a citation forthwith 
 issue to the said A. B., requiring him to appear before the surrogate at his 
 
 office in , on the day of next, at , to 
 
 show cause why he should not be removed from his said guardianship. 
 
 No. 125. 
 
 CITATION. 
 
 [Ante, p. 460.] 
 
 The People of the state of New York, to A. B., a guardian of the person 
 
 [l. s.] and estate of C. D., of , a minor, greeting. 
 
 Whereas complaint has in due form of law been made to our surrogate of 
 our county of Washington, that you the said A. B. have become incompetent 
 
APPENDIX OF POEMS. 551 
 
 to discharge the duties of the said office by reason of intemperance, [or, set 
 out the charge as it is in the petition in substance,] and whereas our surrogate 
 
 of the county of is satisfied by proof of the probable truth of the said 
 
 complaint ; therefore you the said A. B. are hereby cited and required to ap- 
 pear before our said surrogate at on , to show cause, if any 
 
 you have, why you should not be removed fi:om your said guardianship of the 
 said minor. 
 
 In testimony whereof, we have caused the seal of office of our said surrogate 
 to be hereto affixed. 
 
 Witness, &c. 
 
 No. 126. 
 OKDBK FOR KEVOCATION. 
 
 In the Matter or the G-uardian- 
 
 SHIP OF THE PERSON AND ESTATE > Date. 
 
 
 On filing the citation heretofore issued in this matter, and returnable here 
 this day, and an affidavit of the due service thereof on A. B., guardian of the 
 person and estate of the above minor,t and the said A. B. omitting to appear, 
 it is ordered that leave be given to the said complainant to proceed ex parte; 
 whereupon the said surrogate, having examined the proofs and allegations, 
 and being satisfied of the alleged incompetency of the said A. B., it is ordered, 
 adjudged and decreed, and this court, by virtue of the power vested in it, doth 
 order, adjudge and decree, that the said A. B. be removed from the office of 
 guardian of the said minor, and that the appointment heretofore made be re- 
 voked. 
 
 If the guardian appears and contests the removal, the order will be as in 
 No. 127. 
 
 No. 127. 
 ORDER FOR A REVOCATION ON A HEARING. 
 
 L. M. vs. A. B., GUARDIAN OF THE 
 
 PERSON AND ESTATE OF , 
 
 A MINOR, &0. 
 
 • Date. 
 
 The same as last to the t, and then as follows : And hereupon the parties 
 respectively appeared, and the surrogate having heard the allegations and 
 proofs of the respective parties, and duly considered the same, and being satis- 
 fied of the alleged incompetency, &c., [same as above in No. 126.] 
 
552 APPENDIX OF FORMS. 
 
 No. 128. 
 REVOCATION. 
 The People of the state of New York, to A. B., guardian of the person 
 
 [l. s.] and estate of 0. D., a minor, greeting. 
 
 Whereas complaint was lately made to our surrogate of our county of , 
 
 touching certain misconduct alleged against you as guardian of the person and 
 
 estate of , a minor, whereupon a citation was in due form issued by 
 
 our surrogate, under his seal of office, to you, the said guardian, requiring you 
 to appear before the said surrogate at a day now past, and show cause why 
 you should not be removed from the guardianship of the said minor : And 
 whereas the said citation was duly served on you, and such proceedings have 
 been had thereon, that at a surrogate's court held before our said surrogate at 
 
 , on , it was ordered, adjudged and decreed that for certain 
 
 misconduct proved to the satisfaction of the said surrogate, you, the said A. B., 
 should be removed from the guardianship of the person and estate of the said 
 minor, as by the said in part recited decretal order, still remaining before our 
 said surrogate of record, more fully and at large appears : Now therefore, be 
 it known, that in pursuance of the said order or decree, and of the statute in 
 such case made and provided, we have removed, and by these presents do re- 
 move you, the said A. B., from the said guardianship ; and we do, by these 
 presents, revoke the appointment heretofore granted to you as guardian of the^ 
 person and estate of the said minor. 
 
 In testimony, whereof, &c. 
 
 Witness, &c. 
 
 N. B. The appointment and revocation should be recorded in the book of 
 guardians. All the other orders should be entered in the minute book. 
 
 The forms for citing guardians to account are so near like those against ex- 
 ecutors and administrators, that it has been deemed inexpedient to publish 
 them separate. The reader is referred to the forms of compelling accounts 
 from executors and administrators. 
 
 No. 129. 
 
 PBOCBEDINGS FOR THE ADMBASUBBMENT OF DOWBB. 
 
 [Ante, p. 466.] 
 
 PETITION FOB THE ADMEASUREMENT OF DOWEE. 
 
 To the surrogate of the county of 
 
 The petition of Eachel Jackson, of the town of , in said county, 
 
 widow, respectfully showeth: 
 
 That your petitioner was, on the day of , lawfully mar- 
 ried to James Jackson, late of , but now deceased, and lived 
 
 and cohabited with him until his death, which occurred on the day 
 
APPENDIX OP POEMS. 553 
 
 of That the said James Jackson was, during such marriage and 
 
 cohabitation, seised of an estate of inheritance in the following described prem- 
 ises, situate in , in said county, to wit : [Here describe the land :] That 
 
 A. B., C. D. and E. P. claim to be the owners of the said land, in fee simple, 
 as heirs of the said James Jackson, [or by purchase from him, in his lifetime:] 
 That although more than forty days have elapsed since the death of the said 
 James Jackson, the late husband of your petitioner, yet her dower has not 
 been assigned to her in the said lands, or in any part thereof, by the said claim- 
 ants, or by any other person, although the same has been requested by her. 
 
 Tour petitioner therefore prays for an order of this court that admeasure- 
 ment be made of her dower, in the lands and premises aforesaid, and that three 
 reputable and disinterested freeholders be appointed commissioners for the 
 purpose of making such admeasurement, pursuant to the statute in such case 
 made and provided. [If any of the owners are infants, and have no guardian, 
 that fact should be stated, and the petition shoidd ask for the appointment of 
 some discreet and substantial freeholder as guardian for such minor, for the 
 sole purpose of appearing for and taking care of the interests of such infant, in 
 the proceedings.] 
 
 And your petitioner will ever pray, &c. (Signed.) 
 
 Dated. 
 
 Jurat as in No. 6. 
 
 No. 130. 
 FORM OF NOTICE TO BE AMTEXBD TO THE PETITION. 
 
 To the heirs of James Jackson, late of , in the county of , 
 
 deceased, and such other persons as claim a freehold estate in the lands de- 
 scribed in the foregoing [or annexed] petition : 
 Please to take notice that a petition, of which the foregoing [or annexed] is 
 
 a copy, will be presented to the surrogate of the county of , at his 
 
 office in , in said county, on the day of next, at 
 
 ten o'clock A. M., and a motion will thereupon be made for the order and re- 
 lief therein specified. 
 Dated, &c. (Signed.) 
 
 70 
 
554 APPENDIX OF FORMS. 
 
 No. 131. 
 ORDBK FOE, APPOINTMENT OF GUAEDIAN AD LITEM. 
 Saratoga Surrogate's Court. 
 
 In the Matter of the application of 
 Eachel Jackson, widow of James 
 Jackson, late of , de- 
 ceased, FOE ADMEASUBEMBNT OF HER 
 DOWER, 
 
 ■ Date. 
 
 The ahfije named Eachel Jackson having presented her petition, praying for 
 an order that admeasurement be made to her of her dower in certain lands, 
 therein described, of which it is alleged her late husband was seised of an estate 
 of inheritance duripg the coverture, and that three reputable and disinterested 
 freeholders be appointed for the purpose of such admeasurement ; and it appear- 
 ing by the said petition that A. B., one of the above named heirs of the said 
 James Jackson, deceased, is an infant under the age of twenty-one years, and 
 has no guardian : whereupon, on motion of the said Eachel Jackson, by C. S. 
 
 Lester, Esq. her counsel, it is ordered that John Doe, of , a discreet 
 
 and substantial freeholder, be and he hereby is appointed guardian for such in- 
 fant, for the sole purpose of appearing fpi: and taking care of his interest in 
 these proceedings. 
 
 Note. — A copy of this order, duly certified, should be delivered to the guar- 
 dian as his authority. No other appointment is requisite ; though sometimes 
 such appointment is made out. 
 
 No. 132. 
 
 OKDBR FOB ADMEASmil^MENT AND THE APPOINTMENT OF 
 COMMISSIONERS. 
 
 me. (As m No. 131.) Date. 
 
 On reading and filing the petition of the above named Eachel Jackson, bea^r 
 
 \ng date the ...,...., day of . , , praying for admeasurement of her 
 
 dower in the lands therein mentioned, and for the appointment of commissiops 
 ers for the purppse of making such admeasurement; and on reading and filing 
 ^n aflB.davit shovving the due service of the said petition, and the notice theretp 
 subjoined, on the persons therein mentioned as heirs, or owners, [iis Ihe case 
 ?flay be,] and the said parties having appeared in pursuance of §^d notice ; 
 whereupon, after hearing the proofs and allegations of the parties, and the sur- 
 rogate being satisfied that the facts set forth in the said petition are true, it is 
 ordered that admeasurement of the dower of the said widQW be made accord- 
 ing to the prayer of the said petition, and that L. M. of , , and N. Q. 
 
 of ., and P. Q. of , three disinterested freeholders, be ftn(^ 
 
APPEirbix OP porMs. 555 
 
 they are hereby appointed commissioners for the purpose of making such ad- 
 measurement, according to the statute in such case made and provided ; which 
 
 said lands, in which said dower is to be admeasured, are situate in , 
 
 in said county, and are bounded and desqribed as follows, to wit : [Here set 
 out a full description of the premises.] And it is further ordered that the 
 said commissioners report to this court, on , at , the said ad- 
 measurement and proceedings. 
 
 Note. — ^A copy of this order, duly authenticated, lA all the authority required. 
 No other appointment is necessary. The statute speaks only of an appoint- 
 ment by order, (2 K. S. 489, §§ 9, 10.) 
 
 No. 133. 
 OATH OF COMMISSIONiiR. 
 
 Title. (As iri M. 131.) 
 
 I, L. M., N. 0., P. Q., appointed commissioner, to make admeasureinfent of 
 dower in the above matter, do swear that I will faithfully, honestly and im- 
 partially dischai'ge the duty and execute the trust reposed in me by the said 
 appointment. 
 
 Datedi (Signed.) 
 
 No. 134. 
 EEPORT OF COMMISSIONERS. 
 
 !rith. (As in No. 181.) 
 
 To the surrogate of the county of . ; i 
 
 The undersigned commissioners, appointed to make admeasurement of 
 dower in this matter, respectfully report, that having first takeii the oath re- 
 quired by law, they did, on the ...:.... day of , meet at , 
 
 on the premises hereinafter described, to discharge the duty and execute the 
 trust reposed in them ; that all the parties to this proceeding appeared at the 
 time and place aforesaid ; that the said commissioners caused a survey of the 
 said land to be made in the presence of the parties, that is to say • [here de- 
 scribe the whole premises according to the survey,] a map of which is hereto 
 annexed. And they do further report, that at the same time, and in presence 
 of the same parties, they admeasured and laid off to the said widow for her 
 dower the one-third part of the said premises embraced in said order, desig- 
 nating the same by permanent monuments ; and which said part, so admeas- 
 ured and laid off to said widow for her dower, is described as foUows : [here 
 set out the (description,!) as will abo appear by the Inap hereto annexed; 
 
556 APPENDIX OP FORMS. 
 
 They further report, that the following are the items of the charges attending 
 the said admeasurement : [Here state each item.] 
 
 All which is respectfully submitted. 
 
 Dated. (Signed.) 
 
 No. 135. 
 ORDER TO CONFIRM REPORT. 
 
 Tith. {As m No. 131.) Date. 
 
 On reading and filing the report of , the commissioners appointed 
 
 to admeasure the dower of the widow in this matter, and the map accom- 
 panying the same, whereby it appears that they have admeasured and laid 
 off the dower of the said widow, according to the order heretofore made; and 
 after hearing the respective parties by their counsel, and no sufficient reason 
 appearing to the contrary, it is ordered, on motion of the said widow, that the 
 said report and admeasurement be in all things confirmed, and that the same 
 be filed and entered at large in the book provided for that purpose. 
 
 Note. — These proceedings can be easily varied, so as to conform to a differ- 
 ent state of things. 
 
AN ACT 
 
 RESPECTING THE PEES OP SUEROGATES. 
 Pasbed Mat 7, 1844. 
 
 [3 E. S. 919, § 22, 5th ed. L. of 1844, p. 445. Ante, p. 339.] 
 
 The People of the state of New York, represented m senate and assembly, do 
 enact iXS follows : 
 
 § 1. Section thirty-two of title three of chapter ten of part third of the 
 Revised Statutes, is hereby repealed. ' 
 
 § 2. Por the following services, hereafter done or performed by surrogates, 
 the foUowiag fees shall be allowed, nor shall they be entitled to receive any 
 other fees therefor : 
 
 Drawing proof of a will when contested, or any other proceeding before 
 him, for which no specific compensation is provided, fifteen cents for every 
 folio. 
 
 Drawing every petition in any proceeding before him, not otherwise pro- 
 vided for, including the affidavit of the truth of the facts stated therein, fifty 
 cents. 
 
 Every certificate of the proof of a wUl, when contested, endorsed thereon, 
 including the seal, fifty cents; and for any certificate upon exemplifications 
 of records or papers filed in his office, or upon the papers transmitted upon 
 appeal, including the seal, fifty cents. 
 
 Drawing, copying and approving of every bond required by law, fifty cents. 
 
 Drawing, copying and recording every necessary paper, and drawing and 
 entering every necessary order, and for rendering every other service neces- 
 sary to complete proceedings on the appointment of a general guardian of a 
 miaor, three dollars ; and for the like services in appointing.the same person 
 guardian for any other minor of the same family at the same time, one doUar 
 and fifty cents. 
 
 Drawing, entering and filing a renunciation, in cases where the same may 
 be made by law, twenty-five cents. 
 
6S8 EBBS 05" StJREOGATBS. 
 
 A citation or summons, in cases ncrt otherwise provided fof, toi all parties ill 
 the same proceeding, residing in any one county, including the seal, fifty 
 cents ; and for a citation to all parties in any other county, twenty-five cents. 
 
 A subpoena for all witnesses in the same proceeding, residing in one county, 
 including the seal, twenty-five cents. 
 
 For every copy of a citation and subpoena, fornished by a surrogate, twelve 
 and one-half cents, and every such copy of citation shall be signed by the 
 surrogate. 
 
 A warrant of commitment or attachment, including the seal, fifty cents; 
 
 A discharge of any person committed, including the seal, fifty cents. 
 
 For drawing and taking every necessary affidavit, upon the return of an 
 inventory, fifty cents. 
 
 For serving notice of any revocation, or other order or proceeding required 
 by law to be served, twenty-five cents. 
 
 For swearing each witness in cases where a gross sum is not allowed, 
 twelve and one-half cents. 
 
 For searching the records of his office for any one year, twelve and one-half 
 cents ; and for every additional year, six cents ; but no more than twenty-five 
 cents shall be charged or received for any one search. 
 
 Recording every will with the proof thereof, letters testamentary, letters of 
 administration, report of commissioners for the admeasurement of dower, and 
 every other proceeding required by law to be recorded, including the certifi- 
 cate, if any, at the foot of the record, when the recording is not specifically 
 provided for in this act, ten cents for every foHo. 
 
 For the translation of any will from any other than the English language, 
 ten cents for every foho. 
 
 Copies and exempUfications of any record, proceeding or order had or made 
 before him, or of any papers filed in his office, transmitted on an appeal or 
 furnished to any party on his request, six cents for every foho, to be paid by 
 the person requesting them. 
 
 For making, drawing, entering and recording every order for the sale of 
 real estate, and every final order or decree on the final settlement of accounts, 
 one dollar and fifty cents ; and for the confirmation of the sale of real estate, 
 seventy-five cents; and for making, drawing, entering and recording any 
 other order or decree, when the same is not otherwise provided for, twenty- 
 five cents. 
 
 Hearing and determining, when the proof of a will or the right to adminis- 
 tration or appointing a guardian is contested, two dollars. 
 
 Taking, stating and determining upon an account rendered upon a final set- 
 tlement, or determining and decididg the distribution of personal estate, if 
 contested, two dollars for each day necessarily spent therein, not exceeding 
 three days. 
 
 For hearing and determining any objections to the appointment of an exec- 
 utor or administrator, or any application for his removal, or for the removal 
 
PEES OF SUBROGATES. 559 
 
 of any guardian; or any application to annul the probate of a will, two 
 dollars. 
 
 For hearing and determining upon an appHcation to lease, mortgage or sell 
 real estate, two dollars. 
 
 For drawing and recording aU necessary papers, and drawing and entering 
 all necessary orders, on applications for letters of administration, when not 
 contested, and for all services necessary to complete the appointment of ad- 
 ministrators, and for the appointment of appraisers, five dollars ; but in cases 
 where a citation is necessary, seventy-five cents in addition. 
 
 For investing, for the benefit of any minor, any legacies, of the distributive 
 shares of the estate of any deceased person, in the stocks of this state or of the 
 United States, one per cent for a sum not exceeding two hundred dollars ; 
 and for any excess, one-quarter of one per cent; for investing the same on 
 bond and mortgage of real estate, one-half of one per cent, for a sum not ex- 
 ceeding two hundred dollars, and one quarter of one per cent for any excess. 
 
 For receiving the interest on such investments, and paying over the same 
 for the support and education of such minor, one-half of one per cent. 
 
 Appointing 3, guardian to defend any infant who shall be a party to any 
 proceeding, fifty cents ; but where there is more than one minor of the same 
 family, and the same guardian is appointed for aU, twenty-five cents for each 
 additional minor ; and no greater or other fee shall be charged for any service 
 in relation to such appointment. 
 
 Hearing ajid determining upon the report of commissioners for the admeas- 
 urement of dower, one dollar. 
 
 For distributing any moneys brought into his office on the sale of real estate, 
 two per cer^t: ; but such commission shall not in any case exceed twenty dol- 
 lars for distributing tlip whole money raised by such sale, and no executors or 
 other persons, stuthorized to sell any real estate, by order of any surrogate, 
 shall be allowed any pommission for receiving or paying to the surrogate the 
 proceeds of such salp ; but shall be allowed their expenses in conducting such 
 sale, including two dollars for every deed prepared and executed by them 
 thereof, and a compensation not exceeding two dollars a day for the time 
 necessarily occupied in such sale. 
 
 But no fee shajl be taken by any surrogate, in any case when it shall ap- 
 pear tp him, by the oath of the party applying for letters testamentary or of 
 administration, that the goods, chattels and credits do not exceed the value of 
 fifty dollars, nor shall he take any fee for copying any paper drawn by him or 
 filed In his office, except as above provided. 
 
 For drawing and recording all necessary petitions, depositions, affidavits, ci- 
 tations and other papers, and for drawing and entering all necessary orders and 
 decrees, administering oaths, appointing guardians ad Utem, and appointing 
 appraisers, and for rendering every other necessary service, in cases of proof 
 of will and issuing letters testamentary, when not contested, and the will does 
 not exceed fifteen fohos, surrogates shall receive twelve dollars ; and where 
 
560 PEES OF SURROGATES. 
 
 the will exceeds fifteen folios, ten cents per folio for recording such excess, 
 and six cents per folio for the copy of such excess to be annexed to the letters 
 testamentary. 
 
 For all fees on filing the annual account of any guardian, when the surrogate 
 shall draw and take the affidavit of the guardian, and for examining such ac- 
 counts, fifty cents; but when the same shall not be drawn nor taken by him, 
 he shall charge no fees. 
 
 No charge shall be made for drawing, copying or recording his-biU of fees 
 in any case. 
 
 § 3. The fee for filing any paper in the surrogate's office is abolished. 
 
INDEX. 
 
 A 
 
 ABATEMENT. 
 
 when legacies abate, 382. 
 ACCOUNT, 
 
 judge of court of probates, jurisdiction over, 29. 
 
 surrogate's. jurisdiction over, 36. 
 
 surrogate required to file accounts, 51. 
 
 executors and administrators may be cited to account, 414. 
 
 mode of proceeding,' 415. 
 
 what petition to contain, 415. 
 
 how it may be resisted, 416. 
 
 executors, &c. may show no assets, 417. 
 
 jurisdiction over, more ample than in the ecclesiastical courts, 418, 419. 
 
 cases of equitable conversion, 420. 
 
 charge on real estate, 420. 
 
 when a suit by creditor, &c. a basis for a final settlement, 421. 
 
 proceedings thereon, 422 et seq. 
 
 petition, and what it must set forth, 423. 
 
 citation thereon, how served, 423. 
 
 how upon infants, 424. 
 
 all interested may attend the accounting, 426. 
 
 and have subpoenas for witnesses, 426. 
 
 account and vouchers, when to be presented, 427. 
 
 what it should contain, 427, 428. 
 
 oath to account, form of, 428. 
 
 principles on which to be stated, 429. 
 
 debt claimed by executor or administrator to be proved to and allowed 
 by surrogate, 430. 
 
 creditors to be paid pro rata, 431. 
 
 proceedings may be adjourned, 432. 
 
 71 
 
562 INDEX. 
 
 ACCOUN'T — conimued. 
 
 auditors may be appointed, 432. 
 
 their power and duty, 432, 433. 
 
 final accounting after 18 months, 421. 
 
 proceedings on do., 422 et seq. 
 
 order to account, when to be entered, 422. 
 
 petition for general account, what to contain, 423. 
 
 citation, form of, and how served, 423. 
 
 case of infants, guardian ad Utem, 424, 425. 
 
 mode of rendering the account, 426. 
 
 what to contain, 427. 
 
 oath to do., and vouchers of, 428. 
 
 principles on which to be stated, 432. 
 
 objections, how to be stated, 432. 
 
 debts claimed by executors or administrators, to be proved to and 
 allowed by surrogate, 430. 
 
 citation for do. how served, 430, 431. 
 
 effect of final account, 434, 435. 
 
 decree to be made thereon, 436. 
 
 may order choses to be assigned, 436, 437. 
 
 decree need not be enrolled, 437. 
 
 must be entered at large in minutes, 437. 
 
 may be docketed, when, 438. 
 
 mode of enforcing it, 438, 439. 
 
 oi voluntary accounting, 440 et sej. 
 
 decree operates to discharge executor, &c. 440. 
 
 costs of accounting, 442. 
 
 surrogates' fees, 442. 
 
 accounting by guardian, 463. 
 ACKNOWLEDGMENT 
 
 of signature by testator to his will, 100. 
 
 of bonds taken by surrogate, 225. 
 
 form of, 225. (App. No. 40.) 
 ADEMPTION, 
 
 an incident of specific legacy, 351. 
 
 when it occurs, 351, 352* See Legaot. 
 ADJOURNMENT. 
 
 surrogate may adjourn, 35, 432. 
 ADMEASUREMENT OP DOWER. See Dowek, 564 et seq. 
 ADMINISTRATOR, 
 
 jurisdiction over originally, 25, 26. 
 
 in surrogates' courts, 36. 
 
 in what cases, 184. 
 
 different kinds of, at common law, 184, 185, 219. 
 
mDEX. 563 
 
 ADMINISTRATOR— cow^ftMed 
 
 cum, testamento annexo, 185, 207. 
 
 de bonis rum, 185, 211. 
 
 dwrante rmnore estate, 185, 214. 
 
 dmrante absenUa, 186, 219. 
 
 ad coIUgenchm, 186, 219, 220. 
 
 what surrogate has jurisdiction, 187. 
 
 the persons to whom to be granted, 188. 
 
 to the husband of his wife's estate, 190. 
 
 when husband and wife drowned by the same accident, how granted, 
 
 192. 
 when the widow is preferred, 192. 
 effect of divorce on her rights, 193, 194. 
 rights of next of kin to, 194 et seq. 
 
 of guardian of minors, 197. 
 who to be excluded, 197. 
 to a creditor, when granted, 199. 
 sole administration preferred, 198. 
 when to public administrator, 200. 
 when to any competent person, 200. 
 practice in granting administration, 201. 
 where citation is required, 203. 
 grounds of objection to grant, 205. 
 cum testamento am/nexo, 207. 
 will of testator to be observed, 209. 
 parties having prior rights must be cited, 210. 
 de bonis nan, 211. 
 durante minore cetate, 214. 
 
 aisentia etj)endente Ute, 219. 
 
 coUecta, 219, 220. 
 other special administration, 222 et seq. 
 
 his power and duty as to inventory. See Inventory, 243 et seq. 
 bond to be given by, 202, 224. 
 form of bond, App. Nos. 39 to 42. 
 effect of letters of, while unrevoked, 225. 
 when and how revoked, 234, 236, &c. 
 on whose application, 236, 237-240. 
 distinction between a grant void aadvoidoMe, 240. 
 revocation of letters by appeal, 241. 
 the effect on intermediate acts, 242. 
 duty with respect to inventory. /See Inventory, 243 et seq. 
 how compelled to return inventory, 263, 264. 
 his oath to inventory, 262. 
 consequences of refusing to return inventory, 264. 
 
564 INDEX. 
 
 ADMLSIQT'RAHO'R— continued. 
 
 where further inventory required, 266- 
 of collecting and disposing of effects, 267. 
 may sell on credit, 267. 
 may compound doubtful claims, 268. 
 must pay funeral expenses, 269. 
 
 probate expenses, 273. • 
 
 debts, order of, 273, 293/ 
 
 due U. S. 274, 277. 
 taxes assessed on estate, 277. 
 judgment docketed, 279, 281, 
 his own expenses, 237. 
 of payment of inferior before superior debts, 290, 
 sale of personal assets, 292. 
 advertising for claims, 294. 
 when to pay do. 295. 
 cannot retain for his own debt, 303. 
 proceedings of, to sell real estate to pay debts, 306 et seq. 
 when to render account, 314. 
 how made and verified, 315. 
 must have his own debt proved arid allowed, 318. 
 his admissions not evidence against heirs, 318. 
 his duty under statute of distributions, 395 et seq. 
 
 with respect to legacies and distributive shares, 410, 411, 
 may be required to account, 412, 413, 415. 
 what must be stated in petition, 415. 
 
 grounds of resisting claims, 415, 417, 418. jSee titles Bxecutoh. Sur- 
 rogate. Petition. Inventory. Account. 
 ADVAJSrCEMENT, 
 
 what constitutes, and the effects thereof, 398. 
 it takes nothing from the child, 401. 
 
 applies only to the actual intestacy, 402. See tith Distribution, 398, 
 410. 
 ADVERTISING 
 
 for claims, 294 ei seq. 
 object of such call, 425, 426. 
 AGE 
 
 requisite to make a will, 65. 
 ALIEN, 
 
 not being an inhabitant, incapable to serve as executor, 134. 
 ALLOWANCES 
 
 to executors, administrators and guardians, 429. 
 ALLEGATION, 
 
 nature and form of, 231. 
 
INDEX. 565 
 
 AMBIGUITY, 
 
 how and when explained, 376. 
 
 difference between lateral and^afew*, 377. 
 APPRAISERS, 
 
 by whom appointed, 248. 
 
 how far under control of surrogate, 249. 
 
 in whose presence invMitory to be made, 250. 
 
 what are exempt articles, 251. 
 
 what becomes of them, 252. 
 
 power and discretion of appraisers, 253. 
 
 compensation to be allowed, 248. 
 
 may be controlled by surrogate, 249. 
 ASSENT 
 
 of executor to a legacy, when necessary, 380. 
 
 how compelled, if improperly withheld, 380. 
 ASSETS. See Inventory, 243, 248, 251, 256. 
 ATTACHMENT, 
 
 when to be issued, 44. 
 
 to enforce payment of costs, 233. 
 
 for not returning inventory, 264. 
 ATTESTATION CLAUSE OF WILL, 
 
 object of, 108. 
 
 form of, 108. (App. No. 1.) 
 
 not absolutely required, 108. 
 
 a matter of prudence to have it, 109. 
 ATTORNEY, 
 
 when recognized as oflcer in surrogate's courts, 41, 43. 
 ATTORNEY GENERAL, 
 
 when to be cited in cases of intestacy, 206. 
 AUDITORS, when to be appointed, 432, 433. 
 
 their power and duties, 432, 433. 
 
 how many to be appointed, 432. 
 
 their allowances per day, 432. 
 
 parties may appear before them, 433. 
 
 have no power to administer oath, 433. 
 
 their report subject to approval of surrogate, 432, 433. 
 
 B 
 
 BEQUEST. See Legacy. 
 BIDDINGS 
 
 on sale of real estate, when opened, 327* 
 BLIND 
 
 capable of making a will, 69, 70. 
 
566 INDEX. 
 
 BOND 
 
 to be given by surrogate on his election, 55. 
 
 given by administrator and collector, 202, 220, 224. 
 
 when by executor and its form, 224. 
 
 for whose benefit and how enforced, 225. 
 
 what a breach of it,- 225. 
 
 must be proved or acknowledged, 225. 
 
 order of payment of, 284, &c. 
 
 when secured by mortgage, 288. 
 
 when to be given by legatee, 410. 
 
 and when not, 412. 
 
 contents of bond when given, 410. 
 
 of guardian, 455. 
 BOOKS 
 
 to be kept by surrogate, 50, 51. 
 BROTHERS AND SISTERS, 
 
 rights of to administration, 189. 
 
 imder statute of distributions, 396, 397. 
 
 c 
 
 CAVEAT, 
 
 a mere cautionary act, 230. 
 
 in force for three months, 230. 
 
 probate granted in spite of a caveat, not void but voidable, 230. 
 CHANCELLOR, 
 
 former jurisdiction over lunatics, &c., 88, 89. 
 CHARGE ON REAL ESTATE, 
 
 how created by will, 328, 329. 
 
 when it creates a fee without other words, 371. 
 CHILDREN, 
 
 right of to letters of administration, 189. 
 
 legacy to, who included, 375. 
 
 rights of under statute of distributions, 399. 
 
 when take 'per capiia and when per stirpes, 400. 
 
 advancement to, 398, 401. 
 CLAIMS, 
 
 advertising for, 294. 
 
 when disputed to be referred, 294. 
 
 surrogate no power to try contested ones, 299. 
 CITATION, 
 
 one of the forms of process, 48. 
 
 to be issued to attend proof of will, 152. 
 
 how directed and how served, 153, 154. 
 
 how served on a minor, 157. 
 
 on a married woman, 158. 
 
INDEX. 567 
 
 CITATlO'SS—conimued. 
 
 to obtain letters of administration, 203. 
 
 its form and mode of service, 204. 
 
 when to be served on attorney general, 206. 
 
 on allegation to revoke probate, 231. 
 
 to revoke letters testamentary, 234. 
 administration, 237. 
 
 to render final account, 428. 
 
 how to be served, 423 et seq. 
 CODICIL, 
 
 what it is and how executed, 58. 
 
 included in term will, (which see) 98, 117. 
 COLLECTOR. See Abministeator, 219, 220, &c. 
 
 his power and authority, 220, 221. 
 
 required to take oath and give a bond, 220, 224. 
 
 his right to institute suits, 221. 
 
 must make and return an inventory, 221. 
 COMMISSION, 
 
 when to issue to take testimony, 45. 
 
 to prove a will, &c. 165. 
 COMMISSIONS 
 
 of executors and administrators, 429, 463, 4. 
 
 when first allowed, 429. 
 
 rate of and how computed, 429. 
 
 on sales of real estate, by order of surrogate, 339. 
 CONDITION 
 
 of two kinds, precedent and subsequent, 358. 
 CONDITIONAL LEGACIES, 
 
 how defined, 358. 
 
 by what words condition created, 358, 359. 
 
 when void, 359. 
 
 when in terrorem only, 359. 
 
 condition against good morals void, 359. 
 
 legacies to executors conditional when, 360. 
 CONSANOUmiTT, 
 
 lineal and collateral defined, 195. 
 CONSENT OP HUSBAND 
 
 that his wife may be appointed executor, 135. 
 CONTRACT 
 
 for the purchase of land, the interest of deceased therein may be sold 
 by order of surrogate to pay debts, 331 et seq. 
 CONTINGENT LEGACIES, 
 
 in opposition to vested, 349, 353. 
 
568 INDEX. 
 
 COSTS, 
 
 when allowable in surrogates' courts, 42. 
 
 at what rate taxable, 42, 43. 
 
 when allowable, 183, 233, 296, 339, 470. 
 COUNTY JTJDGB, 
 
 when to act as surrogate, 41. 
 CREDITOR, 
 
 when entitled to letters of administration, 199. 
 
 has a stronger claim than legatees, 293. 
 
 to exhibit his claim with vouchers, 294 et seq. 
 
 can compel executors or administrators to proceed to sell real estate, 
 344 et seq. 
 
 remedy before surrogate, 416 et seq. 
 
 defense thereto, 417. 
 
 a necessary party to a general account, 422, 425. 
 CRIMES 
 
 which disqualify', 95 to 97. 
 CUMULATIVE LSaACIES, 
 
 how explained, 362. 
 
 rules with respect to, 362. See title Leqaot. 
 
 D 
 
 DEAF AND DUMB, 
 
 capacity to make will, 68, 69. 
 DEBTS 
 
 of the deceased, when to be paid, 273. 
 
 order of preference, 274. 
 
 due the U. S. preferred, 274, 276. 
 
 due to the state for taxes, &e., 277. 
 
 by judgment, in what order, 179, 280. 
 
 object of docketing, 282. 
 
 how at common law, 286. 
 
 secured by mortgage, 287, 288. 
 
 rule as to joint debts, 287. 
 
 advertising for, 297 et seq. 
 
 when barred by short limitation, 296. 
 
 omission to present, 298. 
 
 no power in surrogate to try contested, 299. 
 
 enforcing payment of, 301. 
 
 due to executor or administrator, how proved, 303. 
 
 when real estate may be sold to pay, 306, &c. 
 
 admission of executors or administrators not evidence against heirs, 318. 
 
 estabUshed, to be entered in a book, 319. 
 
 how payment of enforced, or how resisted, 416, 
 
INDEX. 669 
 
 DECREE, 
 
 to be entered in a book to be kept for that purpose, 51; 
 
 surrogate cannot open final decree, 338. 
 
 may set aside defaults for irregularity, 49. 
 DEMONSTRATIVE LEGACIES 
 
 defined, 352. 
 DEVISE, 
 
 what it is, 56, 62. 
 
 passes whatever estate testator has' at l^ig death, 63. 
 
 rule with respect to, formerly, 130. 
 
 what words carry a fee, 371, 
 DEVISEE 
 
 may have the will proved, 152. 
 
 a necessary party to a sale of real estate, by ordef of surrogate, 309. 
 
 may resist the sale, 335. 
 DISTRICT ATTORNEY, 
 
 when to act as surrogate, 54. 
 DISTRIBUTIVE SHARES, 
 
 person entitled thereto can enforce payment before surrqgate, 410, 
 DISTRIBUTION, 
 
 surrogate has power to enforce, 36. 
 
 of estates according to the law of domici), 60. 
 
 of proceeds on sale of real estate, 333 et seq. 
 
 under the revised statutes, 395 et seq. 
 
 provisions of the statute of, 396, 397, 398. 
 
 rights of widow, 396. 
 
 of father and mother, 397. 
 of children, 396, 400. 
 
 descendants of an illegitimate, 397. 
 
 when by representation, 397. 
 
 rights of the half blood, 397. 
 
 posthumous child, 398. 
 
 advancement, doctrine of, 398, 400. 
 
 rights of next of kin, 396, 400. 
 
 married females, 399. 
 
 enforcing payment of, 409, 410. 
 
 when a bond is required, 410. 
 
 when before the expiration of a year, 411. 
 
 mode of application, 412. 
 
 how order to be served, 415. 
 
 what may be shovm in bar, 416. 
 prVORCE, 
 
 effect of on right to administer, 193, 194. 
 
 72 
 
570 INDEX. 
 
 DOMICIL, 
 
 its effect on wills and successions, 163, 59. 
 DONATIO MORTIS CAUSA, 
 
 nature of, 417. 
 DOWEE, 
 
 when surrogate first liad jurisdiction of, 31. 
 
 claim of extinguished by sale of real estate, 329. 
 
 how compensated, and proceedings for, 333, 334. 
 
 admeasurement of, 464 et seq. 
 
 if possession not surrendered, widow must resort to an action, 465. 
 
 must apply within forty days of the death of her husband, by petition, 
 466. 
 
 what it should state, 466. 
 
 to be served twenty days before presented, 466. 
 
 three oommisssioners to assign it, 467. 
 
 oath to be taken by, 467. 
 
 principles on which dower to be assigned, 468. 
 
 surrogate may adjourn, 468. 
 
 enlarge time to report, 468. 
 
 heirs may apply to have dower assigned, 460. 
 
 proceedings before commissionerj 470. 
 
 objections to report, 470. 
 
 costs of proceedings, 470. 
 
 appeal to supreme court, 471. 
 
 duty of sm:rogate on, 471. 
 DRUNKARD, 
 
 when incapable of making a will, 88. 
 
 incompetent to be executor, 134, 235. 
 
 or administrator, 236. 
 or guardian, 460. 
 DURESS, 
 
 when it avoids a will, 89, 
 
 E 
 
 EFFECTS. 
 
 what passes under that term, 371. 
 ELECTION, 
 
 when widow put to, with respect to exempt articles, 255, 
 
 do. in lieu of dower, 363, 364. See title Legact. 
 ESTATE PUR AUTER VIE 
 
 tq be iiiventoried as personal property, 250. 
 EVIDENCE 
 
 in testamentary cases, 174-184. 
 
 aged, sick or foreign witness, how examined, 177, 178, 
 
mDBX. 571 
 
 EVIDENCE— confetteA 
 
 opinion of witnesses, how far received, 179, 182. 
 order of proof, 183. 
 on sale of real estate, 318. 
 
 admissions of executors and administrators not evidence, 318. 
 EXEMPT ARTICLES. ,S'ee iNVEUTonr and 251, 252. 
 
 to be inserted in inventory, 251, 252. 
 
 surrogate's power over same, 254, 
 
 how right to, barred by will, 255. 
 
 reason and policy of the law, 256. 
 
 to whom the articles finally belong, 256, 257. 
 EXEMPLIFICATION OP WILLS 
 
 proved abroad, 164. 
 EXPATRIATION", 
 
 not allowed without leave of government, 164. 
 EXECUTOR, 
 
 surrogates' power of control over, 36. 
 
 who eUgible and who not, 134, 137. 
 
 when his appointment may be objected to, 136. 
 
 grounds of superseding him, 136, 137. 
 
 by what words appointment made, 138. 
 
 for what time, 138. 
 
 power not assignable, 139. 
 nor transmissible, 139. 
 
 de son tort abolished, 140. 
 
 his refusal to accept renunciation, 141. 
 
 being surrogate, has no jurisdiction, 142. 
 
 when he may retract his renunciation, 142. 
 
 when it is too late to do so, 143. 
 
 when there are divers executors, 144. 
 
 his power before and after probate, 146, 147. 
 
 may be compelled to produce will, 150, 151. 
 
 may have the will proved, 149, 152. 
 
 when and before whom to take oath of ofSce, 161. 
 
 foreign, how to obtain letters, 162, 163. 
 
 renouncing, is a competent witness, 176. 
 
 if there be several and one die, the authority vests in the survivor, 209, 
 21L 
 
 when to give bond, 224, 341. 
 
 when letters to be revoked and how, 234. 
 
 his power and duty as to inventory. See Invbntoet, 243 et seq. 
 
 must return it to surrogate under oath, 262. 
 
 may be attached for refusal, 264. 
 
 consequences of refusal to return do. 264. 
 
572 INDEXj 
 
 'EXECVTOU— continued. 
 
 when further inventory Required, 266; 
 
 collecting and disposing of effects, 267; 
 
 may sell on credit, 267. 
 
 may compound doubtful claims, 268. 
 
 must pay funeral expenses, 269. 
 
 a sale of property by one of several, good; 269j 
 
 must pay probate expenses, 269. 
 
 debts, order of, 273, 293. 
 U. S. 274^277. 
 
 taxes assessed on estate, 277. 
 
 judgment docketed, &c. 279, 281. 
 
 his own expenses, 273. 
 of payment of inferior before superior debts, 290; 
 sale of personal assets, 292. 
 advertising for claims, 294. 
 when to pay do. 295. 
 must have his own debts proved, 303, 318. 
 proceedings of, to sell real estate to pay debts, 306. 
 when to render account, 314. 
 how made and verified, 315. 
 admissions not evidence against heirs, 318. 
 
 authority of an executor under a power Inust be strictly pursued, 342; 
 may be compelled to apply for order of sale, 344. 
 legacies to, when conditional, 360. And see titles Leoaov. LapsEi 
 
 Condition. 
 what an acceptance of the office, 361. ^ 
 his assent to a legacy, how compeUed if refused, 379, 880. 
 remedy against, before surrogate, 380. 
 his duty as to payment of legacies. See title Leoaot. 
 
 as to the residue, 394. 
 
 distribution, 395-398. 
 aiay be compelled to pay legacies and distributive shares, 410, 411, 
 toay be required to account and pay debts, 412, 413. 
 practice in these cases, 414. 
 order to account, how served, 415. 
 ■consequences of refusal, 415. 
 grounds of resisting the claim, 415, 417. 
 if assented to, when may be paid, 417. 
 when husband sues for legacy to wife, 418. 
 
INDEX* 573 
 
 F 
 
 PATHEE) 
 
 ■frhen Biititled to letters of administration of his child, 189. 
 
 his right under the statute of distribution, 397. 
 
 he alone can appoint a testamentary guardian, 452. 
 FBAE, 
 
 When it avoids a Mil, 90; 
 
 nsture of it, 90. 
 FEIGNED ISSUE. 
 
 to determine the validity of a debt, on application to sell real estate, 
 316. 
 
 ho'w issue made up, 316. 
 PINAL SETTLEMENT 
 
 of accounts of executors and administrators. See title AccotrNTS, 
 427 etseq. 
 FIRST JUDGE, 
 
 -when to act as surrogate, 54. 
 FIXTURES. 
 
 what annexations go to the heir, and what to the executol: ot admin- 
 istrator, 258, 259. 
 
 grass growing and firuit not gathered, 260. 
 FOREIGN LANGUAGE, 
 
 probate of A Will in, to be granted of a translation, 165i 
 FRAUD, 
 
 win obtained by, void, 90. 
 FUNERAL EXPENSES, 
 
 first lien on the estate, 269. 
 
 extravagant, a devastavit, 269. 
 
 what allowed in insolvent estates, ^7*0. 
 
 when body may be removed at a distance for intei^iiielit, 271. 
 
 as to mourning for family, 272. 
 
 When tombstones allowable, 272. 
 
 G 
 
 GAiiStBR, 
 
 disqualified fronl being executor or administrator By reasdti of improv- 
 idence, 136, l37; 
 GUARDIANS, 
 
 when first appointed by surrogate, 30. 
 
 appointment to be recorded, 51. 
 
 ad litem, when and how appointed, 157, 158, 159, 204. 
 
 power of appointment of, an incident of all courts, 157. 
 
 when to be ippoiiited administrator, 214. 
 
674 mcBX, 
 
 GUARDIANS— comimMeA 
 
 nature and duration of tlie ofSce, 214-219i 
 
 when appointed, to give a bond, 217. 
 
 on sales of real estate, in case there are minors, guardian ad titem to be 
 appointed, 310. 
 
 in case of accounting, how appointed, 424, 425. 
 
 when guardian ad litem^ entitled to pay, 425. 
 
 when minor omits to apply, how to be appointed, 425.- See G-uardian 
 AND Ward. 
 GUARDIAN AND WARD, 
 
 relation of, treated, 443 et seq. 
 
 different kinds of guardian, 443i 
 
 guardian by nature, 443. 
 by nurture, 444. 
 in socage,444. 
 testamentary, 445. 
 chancery guardian, '446j 
 
 when to be appointed by surrogate, 446i 
 
 cannot appoint a guardian for an infant whose father is aliVe, ^7. 
 
 power of guardian appointed by the surrogate, 448. 
 
 general duty of guardians, 448j 449. 
 
 cannot sell real estate of ward, 449. 
 
 may sell his personalty, 450. 
 
 must keep money invested, 451. 
 
 may receive legacy of ward, 451. 
 
 his commissions, 451. 
 
 appointment of, how made, 452. 
 
 by will or deed, 452. 
 
 by father only and not by mother, 453< 
 
 surrogate, no jurisdiction over, 453. 
 
 petition for appointment, 454. 
 
 proceedings on do. 454, 455, 457. 
 
 bond to be taken to each, 455. 
 
 to file inventory annually 456. 
 
 infant under 14, proceedings, 457. 
 
 who to be preferred, 458. 
 
 interest of the infant to be regarded, 458. 
 
 removal of guardian, 459. 
 
 by petition and citation, 459. 
 
 proceedings on do. 459, 460. 
 
 accepting resignation of, 461. 
 
 accounting by guardian, 463. 
 GRAND PAREl^T, ' 
 
 preferred in degree of kindred to uncle or aunt, 403- 
 
INDEX. 5T5 
 
 H 
 
 HALF BLOOD, 
 
 relatives of, entitled to administration, as well as the whole blood, but 
 
 the latter preferred, 197. 
 take equally with the relatives of the whole blood, in successions to 
 personal estate, 403. 
 HEIES, 
 
 names and places of residence, to be set forth in petition to prove will 
 
 of real estate, 171. (App. No. 5.) 
 citation to be directed and served on them, 172. 
 
 to be served with notice, on the sale of real estate, by order of 
 surrogate, 309. 
 may oppose order of sale, 314 et seq. 
 
 admission of executors or administrators, not evidence against, 317, 318. 
 when they may apply to have dower admeasured, 469, 
 HOLOGRAPH, 
 
 a will written whoUy by the testator, 70. 
 HOTCHPOT, 
 
 when an advancement brought into, 401, 
 HUSBAND AND WIFE, 
 
 consent, in writing, of the husband to the issuing of letters to the wife, 
 
 135. 
 marriage after letters, consent unnecessary, 135. 
 when wife entitled to letters of administration, they are to be granted 
 
 to him in her right, 189. 
 marriage of a female sole administratrix, makes husband liable for her 
 acts, 293. 
 
 IDIOT, 
 
 what constitutes the disability, 67. 
 
 incapable of making a will, 68. 
 ILLITERATE PERSONS, , 
 
 can make a will or be a witness, 105. 
 IMPORTUNITY, 
 
 its effect on a wiU, 91, 92. 
 IMPROVIDENCE, 
 
 ground of exclusion from being executor, 136, 137, 
 as administrator, 236. 
 INFANTS, 
 
 when iijcapable to make a will, 66, 67. 
 
 at what age capable, 66, 67. 
 
576 INDEX. 
 
 INFANTS— coTO*m«ed 
 
 guardians, ad litem for, 157. 
 
 right to exempt articles, 251, 256, 
 INJUNCTION, 
 
 when issued by surrogate, 48, 461, 
 INSANITY, 
 
 when insanity, general or partial, will invalidate a will, 80. See fiih 
 Lunatic. 
 
 moral, how defined, and its effect, 83. 
 
 sanity is to be presumed, 74, 
 INVENTORY, 
 
 duty of executor and administrator, with respect to, 243 et w, 
 
 ancient practice, 244. 
 
 evidence of assets, 247. 
 
 court act judicially in receiving it, 246, 
 
 object of, 246, 247, 248. 
 
 commission of appraisment, 247, 
 
 present practice, 248. 
 
 appointment of appraisers, 248. 
 
 principle on which appraisment should be made, 249, 
 
 within what time to be made, 250. 
 
 what notice to be given, 250. 
 
 what articles are exempt, 251. 
 
 power of surrogate over, 254. 
 
 how right to exempt articles waived, 255. 
 
 final disposition of the exempt articles, 256. 
 
 mode of taking and property to be inserted, 258, 259, 
 
 rule as to fixtures, 259, 260. 
 
 debts due by executor to testator to be inventoried, 261, 
 
 duplicates to be made, and oath to same, 262. 
 
 method of compelling return to do., 263, 264. 
 
 consequences of refiising to return, 264, 265. 
 
 when further inventory to be returned, 266. 
 IRREGULARITY, 
 
 surrogate's power to set aside prqcpedings for, 49. 
 ISSUES OP FACT, 
 
 how to be tried and where, 47. 
 
 J 
 
 JUDGE, 
 
 when to act as surrogate, 54. 
 JUDGMENTS, 
 
 order of preference among, 279. 
 
 of a fpreign country treated as a simple contract, 279. 
 
INDEX, 677 
 
 SUBQWENTS,— continued. 
 
 against executor or administrator, no preference, 283. 
 how at common law, 286. 
 enforcing payment of, 299, &c. 
 
 K 
 
 KINGS COUNTY 
 
 surrogate of to have clerics, 41. 
 their power and duty, 41. 
 
 LAPSE OF A LEGACY 
 
 by death of legatee before the death of the testator, 353, 
 
 in what cases prevented by revised statutes, 353. 
 
 hqw it may be prevented by will, 354. 
 
 by death of legatee after the death of the testator, 355-3Q8, 
 
 hqw intention of testator ascertained, 355. 
 
 rules of construction with regard to, 356. 
 
 of legacies payable out of real estate, 356. 
 of a mixed fund, 356. 
 LEASE, 
 
 for years inventoried as personal property, 259. 
 LEGACY, 
 
 judge of the court of probates, jurisdiction over, 29. 
 
 surrogate's jurisdiction over, 36. 
 
 when void, by legatee subscribing the will as a witness, 175. 
 
 when a charge on real estate, enforced in court of equity, 328, 
 
 by what words created and by what not, 328, 329. 
 
 different kinds, incidents and construction, 348 et seq. 
 
 general and specific, meaning of terms, 346. 
 
 presumption in favor of general legacies, 346. 
 
 when legacy in pawn must be redeemed by the executor, 348, 352, 
 
 distinction between the two, 350. 
 
 ademption, an incident of specific legacy, 351. 
 
 meaning of the term and cases, 351, 352. 
 
 demonstrative legacy, how defined, 352. 
 
 vested and contingent, 353. 
 
 primarily payable out of the personalty, 353. 
 
 when a legacy lapses, 353-358. And see title Lapse. 
 
 how lapse may be prevented by the will, 354. 
 
 to two jointly, and one dies, goes to survivor, 354. 
 
 to several by name, to be divided among them in equal parts, on death 
 qf que, his share lapses, 354. 
 
 73 
 
578 INDEX. 
 
 liEGAGY—confmued. 
 
 not payable till a year after letters, 355. 
 lapse of legacies payable out of real estate, 358. 
 do. of a mixed fund, 358. 
 absolute and conditional, how defined, 358. 
 conditions precedent and subsequent, 358. 
 by what words created, 358. 
 when void for repugnancy, 359. 
 conditions in terrorem, not void, 359. 
 when against good morals, 359. 
 to executors, are conditional, 360. 
 notice for legacy need not be stated, 360. 
 whether cumulative, or a repitition, 362. 
 of election and satisfaction, 363, 364. 
 to a creditor, when in satisfaction, 365. 
 and when not, 366. 
 
 to a debtor, effect of, at common law, 367. 
 effect under our statutes, 367, 368. 
 of the persons capable of being legatees, 368. 
 what necessary to constitute a legacy, 368. 
 construction of wUls. See title Wilis, 369. 
 of bequests, 372. 
 with regard to the person, 373. 
 
 to children, 374. 
 
 to nephews, nieces, descendants, 375. 
 
 to issue, who included, 376. 
 when ambiguous, how explained, 376, 377. 
 of the time of payment, 377, 378. 
 of the assent of executors to, 379. 
 order in which to be paid, 380. 
 speeiflo legacies to be first paid, 381. 
 preference to legacies of piety, 381. 
 when priority expressly given, 382. 
 when legacies abate, 382. 
 of the person to whom payable, 382. 
 to an infant, when payable to his father, 382. 
 when to guardian, 384. 
 
 additional security to be given by guardian, 384. 
 if no guardian, when to be invested, 384. 
 when paid in to trust company, 386, 387. 
 to a married woman, to whom to be paid, 387, 
 for life, with limitation over, 388, 389. 
 when interest is allowable on, 390, 391, 
 increase of specific legacies, 391. 
 
INDEX. 579 
 
 LEGACY — continued. 
 
 when and by what words charged on real estate, 391, 392, 393. 
 
 personal estate still chargeable, 393. 
 
 when legacies to be refunded, 393. 
 
 residue, when and to whom payable, 394. 
 
 enforcing payment of, 409, 410. 
 
 when bond may be required, 410. 
 
 when before the expiration of a year, 411. 
 
 mode of application, 412. 
 
 how order to account to be served, 415. 
 
 what may be shown in answer, 416, 417. 
 
 cases of equitable conversion, 420. 
 
 final account after 18 months, 421. 
 
 proceedings on do. 422 et seq. 
 
 order to account, when to be entered, 422. 
 
 petition for general account, what to contain, 423. 
 
 citation, form of and how served, 423. 
 
 care of infants, guardian ad Utem, 424, 425. 
 
 mode of rendering the account, 426. 
 
 what to contain, 427. 
 
 oath to do. 428. 
 
 vouchers, 428. 
 
 principles on which to be stated, 429. 
 
 auditors, their power and duty, 432. 
 
 objections to account, how to be stated, 432. 
 
 debts claimed by executor or administrator, to be proved to and allowed 
 by surrogate, 430. 
 
 when citation for do. to be served, 430, 431. 
 LEGATEE, 
 
 may have the will proved, 152. 
 
 effect on his legacy by subscribing the will as a witness, 175. 
 
 who capable of being legatee, 368. See title Legacy. 
 
 when to refiind a legacy, 393. 
 LETTERS TESTAMENTARY, 
 
 when and how to be issued, 160. 
 
 form of, 160, and Appendix, No. 22. 
 
 when to be recorded, 161. 
 
 not issued till oath of ofiBce taken, 161. 
 
 when to a foreign executor, 162, 163. 
 
 to be recorded, 166. 
 
 how and for what cause revoked, 234, 235. 
 
 revocation by appeal, 241. 
 
 its effect on intermediate acts, 242. 
 
580 INDEX. 
 
 LIMITATION 
 
 of actions, toay be interposed to claims on sale of real estate, 317, 335i 
 
 short do. when it occurs, 296. 
 LUCID INTERVALS, 
 
 doctrine with respect to, 7^80. 
 LTOTATIO, 
 
 same as unsound mind, 72. 
 
 meaning of the term, 73. 
 
 cannot make a will, 74. 
 
 sanity is presumed till the contrary appears, 74. 
 
 may make will in lucid interval, 79, 80. 
 
 when under guardianship, may make a will, 89j 
 
 M 
 
 MARRIAGE 
 
 of a female sole administratrix, makes her husband liable for her acts, 
 239. 
 MARRIED WOMEN, 
 
 when not permitted to make a will, 92. 
 
 when allowed to, 92, 93, 94. 
 
 when under a power, 95. 
 
 on her death, citation must issue to her husband, 155. 
 
 to whom her legacy to be "paid, 387. 
 
 rights of under statute, 399. 
 MARRIAGE AND BIRTH OF A CHILD, 
 
 a revocation of will, 127. 
 MOURNING, 
 
 not allowed as a funeral expense as against creditors, 272. 
 MOTHER, 
 
 when entitled to administration of her intestate child, 189. 
 
 of her rights under the statute of distributions, 397. 
 MUTES, 
 
 how they make acknowledgment to will, and request the witnesses to 
 attest, 101. 
 MUTUAL WILL, 
 
 unusual in this country, 60. 
 
 N 
 NkW TRIAL, 
 
 on issues from surrogate's court, how and by what cOUPt gi?anted, 47, 48. 
 iSfEW YORK, 
 
 surrogate of to appoint assistants, 40. 
 
 salary of, fixed by supervisors, 40; 
 in case of vacany, how filled, 41. 
 
inde:^. 581 
 
 Next of Kin, 
 
 names and places of abode to be ascertained on application for probate; 
 152. 
 
 citatidn to be directed to them by name, 152, 153. 
 
 who meant by the term next of kin, 154. 
 
 how ascertained, 154, 155, 195. 
 
 their right to letters of administration, 189. 
 
 entitled to notice of appraisment, 250. 
 
 their rights under the statute of distributions, 395, 399: 
 
 bequest to, how confined, 376. 
 NON COMPOS MENTIS, 
 
 meaning of the term, 73. 
 
 cannot make a will, 73. 
 NON-INHABITANT, 
 
 rule as to letters aild probate, l6l, 1G2, 163. 
 NON-RESIDENT 
 
 executor or administrator, appointed abroad, cannot sue here, 166, 163i 
 NOTICE OE APPitAISMENT, 
 
 to be served five days previous, 2o0i See Inventory. 
 NUNCUPATIVE WILL, 
 
 in what cases allowable, 64, 115. 
 
 how made and attested, 65, 115. 
 
 real estate not disposed of by, 116. 
 
 affects only personalty, 116. 
 
 no particular number of witnesses required, lit. 
 
 must be admitted to probate, 167. 
 
 
 
 OATH, 
 
 of executor, before whom and when to be taken, 161. 
 administrator, do., 202. 
 
 do. to inventory, 262. 
 OATH OF OFFICE 
 
 of surrogate to be taken fifteen days after notice, 55. 
 
 where to be filed, 55. 
 OFFICERS 
 
 of the surrogates' courts, 40. 
 
 when and where clerks allowed, 41. 
 
 attorneys and counsellors, 42, 43. 
 
 sheriff, when an ofl&oer, .44. 
 
 judicial, forbidden to act as counsel or attorney, 53i 
 OLD AGE, 
 
 not disqualification to make a will, 84. 
 
582 \ INDEX. 
 
 opmiON^ 
 
 of wJitnesses, when admissible, 181, 182. 
 ORDER 
 
 for issuing letters of administration, when and where entered, 202. 
 to be entered in minutes for all process, &c., 51. , 
 
 of the surrogate, to be obeyed, 36, 224. (And see the several titles with 
 respect to which an order may be made.) 
 
 PARAPHERNALIA, - 
 
 of what it consists, 251. 
 PETITION 
 
 to prove will, 150. App. Nos. 5, 11. 
 
 obtain letters of administration, 201. App. No. 38. 
 do. cum testamento anneoco, 211. 
 do. do. de honis non, 214. App. No. 38. 
 
 to revoke letters of administration, 234. App. No. 48. 
 
 to remove executors, &c., 234. App. No. 25. 
 
 to compel executor to accept or renounce, 243. App. 35. 
 
 to obtain appraisement of goods, 234. App. No. 58. 
 
 to compel the return of inventory, 263. App. No. 66. 
 
 for payment of a debt in advance of final settlement, 301. App. No. 74. 
 
 for proof of debt due by deceased to the executor or administrator, 303, 
 317. App. No. 71. 
 
 for order to account, 414, 415. App. No. 75. 
 
 for sale of real estate, 309. App. No. 84. 
 
 to compel executors to sell, 345. 
 
 to sell additional parcel, 330. App. No. 104. 
 
 to compel executor to pay legacy, 410, 411. App. No. 75. 
 do. payment of legacies, debts or distributive shares, 410, 414. 
 do. to account, 423. 
 
 of executors to render final account, 423. App. No. 77. 
 
 for appointment of guardian, 454, 457. App. Nos. 109, 116. 
 
 for removal of do., 460. App. No. 123. 
 
 for resignation of guardian, 461. 
 
 for the accounting by guardian, 463. 
 
 for the admeasurement of dower, 466. App. No. 129. 
 PLEADINGS, 
 
 what allowed in surrogates' courts, 45, 46. 
 
 form of, analogous to those of other courts, 47. 
 
 when an allegation of interest, 48. 
 PREROGATIVE OOURT, 
 
 jurisdiction of, under the colony, 26. 
 
INDEX. 583 
 
 I*EOBATES, 
 
 court of, when organized, and its powers, 26. 
 
 empowered to compel administrator to account, 29. 
 
 to hear causes touching legacies, 29. 
 
 when abolished, 32. 
 
 to what court its powers were assigned, 32. 
 
 of wills conclusive as to personalty, 60, 61, 226. 
 but only prima facie as to realty, 61. 
 
 of wills, what it is, 145. 
 
 necessity and effect thereof, 146, 225. 
 
 retrospective, operation of, 147. 
 
 in what court to be made, 148. 
 
 manner of and practice, 149. 
 
 when is lost or destroyed, 150. 
 
 persons interested may prove the will, 152. 
 
 proceedings on do., 153, &c. 
 
 of wiU in a foreign language, of a translation, 165. 
 
 of what instrument, necessary, 166, 167. 
 
 conclusive as to appointment of executor, 226. 
 
 not evidence as to real estate, 228. 
 
 revocation of, 229 et seq. 
 
 next of kin may, within a year, contest, 230. 
 
 revocation to be entered of record, 232. 
 
 costs of proceedings, how to be paid, 233. 
 
 grounds for revoking probate, 233, 234. 
 
 revocation of by appeal, 241. 
 
 its effect on intermediate acts, 242. 
 
 expenses of, how paid, 273. 
 PROCESS, 
 
 what may be issued, 44, 48. 
 
 orders for to be entered in minutes, 51. 
 PUBLICATION 
 
 of will when necessary and how done, 202. See title Will. 
 
 of notice to claimants to exhibit claims, 293, 294 et segr. 
 
 R 
 
 REAL ESTATE, 
 
 how formerly sales were made, 39. 
 
 present practice, 306 et seq. 
 
 application to be made within three years, 308. 
 
 all the executors, &o. must unite, 308. 
 
 mode of application by petition, 305. 
 
 how jurisdiction is acquired, 309. 
 
 jn case of minors, guardians to be appointed, 310. 
 
584 INDEX, 
 
 EBAL ESTATE— eonfcwed 
 
 order to show cause when made, 311, 
 
 when claims to be presented, 312, 
 
 how order is to be served, 312, 313, 
 
 when widow is not a proper party, 313, 
 
 what other persons are parties, 309, 310. 
 
 accounts to be rendered, 315, 
 
 who may resist the application, 316, 317. 
 
 when order of sale to be made, 319, 
 
 what security to be taken, 320, 
 
 on refusal to give bail, what remedy, 320. 
 
 when order for leasing or mortgaging preferred to a sale, 321, 322, 
 
 what title passes by a sale, 323. 
 
 form and substance of order, 323, 324. 
 
 sale to be at public auction, 324. 
 
 notice of do., how given, 325. 
 
 who may bid at such sales, 325. 
 
 as to opening biddings, 327. 
 
 when sales to be confined, 327, 328. 
 
 sales subject to incumbrances, 328. 
 
 what direction in a will makes a charge, 328. 
 
 remedy to enforce a charge in equity, 328. 
 
 gale by order of the surrogate extinguishes the dower of the widow of 
 the deceased, 329. 
 
 by whom deed to be given on such sale, 329. 
 
 must contain the order of sale and order of confirmation, 329. 
 
 when a further sale may be made, 329, 330. 
 
 proceedings do not abate by death of executor or administrator, 330. 
 
 the authority is a naked power, not coupled with an interest, 330. ■ 
 
 a contract of purchase may be sold by order of surrogate, 331. 
 
 proceedings on such sale, 331 to 333. 
 
 money to be brought into court, 332. 
 
 distribution of the avails of sales of real estate, 333 et seq. 
 
 must be brought into court, 333. 
 
 order of payment, fees and expenses, 333. 
 
 satisfy widow's claim of dower, 333. 
 
 notice to be given to widow, 333. 
 
 she is required to elect a sum in gross and sign an instrument in writ- 
 ing, 333. 
 
 it must be acknowledged, 333. 
 
 and preserved by surrrogate, 334. (App. Nos. 99 to '02.) 
 
 if she refuWs to elect, an annuity to be allowed her, and by what rule, 
 334. 
 
 balance to be distributed, 334. 
 
INDEX. 585 
 
 REAL ESTATE— conimued 
 
 notice to be published 6 weeks, 334. 
 
 the vaUd claims to be then adjusted, 334, 335. 
 
 what objections may be urged, 335. 
 
 order allowing or rejecting claims, appealable, 335. 
 
 schedule of claims to be made, 335. 
 
 debts not due may be paid, 335. 
 paid ratably, 336. 
 
 distribution sheet to be made, 336. 
 
 if proceeds exceed the debts, residue belongs to heirs and deTisees, 
 336, 337. 
 
 on sale on credit, surrogate cites the securities, 336, 337. 
 
 surrogate cannot open his decree, 338. 
 
 costs on litigated claims, how allowed, 339. 
 
 fees to be taken, 339. 
 
 at common pleas rates, 340. 
 
 distribution, when sale made under a power in the will, 341. 
 
 sales under a power may be pubho or private, 342. 
 
 executors and administrators may be compelled to apply, 344. 
 
 must account, order how, served, 345. 
 
 creditor's remedy, if surrogate declines, 347. 
 EECOaNIZANCES, 
 
 in what order paid, 284. 
 
 meaning of the term, 287. 
 EEFEEBNCE 
 
 of claims disputed, 295. 
 RENT, 
 
 reserved to the deceased, which had accrued at the time of his death, 
 to be inventoried as assets, 259. 
 
 when preference given in payment of, 284. 
 EEPTJBLIOATION 
 
 of wills, 132, 133. And see title Will. 
 EEPEESENTATION, 
 
 not admitted among collaterals after brothers' and sisters' children, 397. 
 EBQUEST 
 
 of witnesses to attest the will, 98. 
 
 how made by deaf and dumb, 101. 
 EENUNCIATION, 
 
 how and when m'ade, 141. 
 
 must be in writing, 141. 
 
 by refusal to quahfy, 142. 
 
 when it may be retracted, 142. 
 
 when there are several executors and one only qualifies, 143, 
 
 T4 
 
586 INDEX. 
 
 RENUNCIATION— eonfewMei. 
 
 of right to administration, 203. 
 
 its form and effect, 203. 
 
 right to distributive share not waived, 399. 
 RESIGNATION 
 
 by guardian of his trust, 461. 
 
 citation to the ward to be issued, 461. 
 
 proceedings on do. 462. 
 EBSTEAINT, 
 
 what sufficient to invahdate a will, 89. 
 RESIDUE, 
 
 bequest of, when not a charge on the realty, 328, 329. 
 
 of the payment of, 394 et seq. 
 RETAINER, 
 
 by executor or administrator, abolished, 303, 430. 
 REVOCATION 
 
 of will, how made, 118. 
 
 by a subsequent will, 118. 
 
 by express terms, 121. 
 
 by cancellation, &c. 123. t 
 
 implied revocations, 127. 
 
 by marriage and birth of a child, 127. 
 
 of probate, 229 etseq. 241. 
 
 of letters testamentary, 234, 241, 265. 
 
 of letters of administration, 236, 241, 263. 
 
 of guardian, 460. 
 
 - ■ s 
 
 SANITY 
 
 presumed till the contrary appears, 74. 
 SATISFACTION, 
 
 when a legacy operates in, of a debt, &c. 366. 
 
 and when not, 366, See title Legacy. 
 SHERIFF 
 
 required to serve process of surrogates' courts, 43. 
 SHORT LIMITATION, 
 
 when it occurs, 296. 
 SOLDIER, 
 
 in actual service, may make a nimeupative will, 65, llfl. 
 SPECIFIC LEGACY, 
 
 meaning of the term, 349. 
 
 court leans against, 349. 
 
 incidents of, 351. See title Leoact anb Lapse, 
 
INDEX. 587 
 
 SPECIAL LETTERS 
 
 of administration, 207 et seq. 
 STATUTE OP LIMITATIONS 
 
 may be interposed against the sale of real estate, 317, 335. 
 SUBSCRIPTION 
 
 of testator at end of will, 98-100. 
 
 what sufficient for witnesses, 98-100. 
 
 signing by mark, 98. 
 SUBPCENA, 
 
 surrogate, power to issue, 48. 
 
 form of subpoena, App. No. 12. 
 
 suhpmna duces tecum, App. Nos. 12, 15. 
 
 to produce wiU for probate or proof, 150, 151. 
 SUMMONS 
 
 to compel executor to take the office, 143. (App. No. 36.) 
 
 to compel the return of inventory, 263. 
 SUPREME COURT, 
 
 when wills proved therein, 164. 
 
 wiU so proved, transmitted to surrogate, 164. 
 
 proof of will lost or destroyed, 150. 
 SURROGATE, 
 
 his jurisdiction under the colony, 27. 
 
 when the office was organized, 27. 
 
 how appointed originally, 28. 
 
 when jurisdiction over legacies first given, 30. 
 
 when first authorized to order sale of real estate to pay debts, 30. 
 
 when to appoint guardian, 30. 
 
 first authorized to appoint commissioners to assign dower, 31. 
 
 a. limited jurisdiction, 31. 
 
 his duties before the R. S. 33. 
 
 jurisdiction under the constitution of 1846, 33. 
 
 only court of original jurisdiction in testamentary matters, 34. 
 
 not a court of record, 35. 
 
 his general jurisdiction by the present law, 36. 
 
 enlarged by several statutes, 37, 38. 
 
 his general powers and duties, 44. 
 
 may issue commission to examine foreigh witness, 45. 
 
 power to set aside defaults, &o. 49. 
 
 authorized to revoke letters at common law, 50. 
 
 what books to be kept by him, 51. 
 
 when to procure a new seal, 52. 
 
 to record wills and file papers, 52. 
 
 to reduce testimony to writing, 52. 
 
 not to be counsellor, &c. in certain cases, 53. 
 
588 INDEX. 
 
 SUEEOG-ATE— confareucd 
 
 not to act when interested or of kin, 53. 
 
 when county judge to act, 54. 
 
 to give bail on his election, 54 
 
 to take oath of ofiic6 in 15 days, 55. 
 
 before what officer taken, 55. 
 
 appointed executor, has no jurisdiction, 142. 
 
 his jurisdiction in granting probate, 145, 148, 152. 
 
 granting letters of administration, 187 et se^, 
 discretion in selecting administrator, 198. 
 orders to be obeyed, 36, 224. 
 when allowed to take fees, 273; 
 his jurisdiction in revoking probate, 231i 
 letters testamentary, 234. 
 with respect to inventory, 248; 
 compelling return of do., 263. 
 with respect to advertising for claims, 294, 
 enforcing payment of judgments, 299; 
 on sale of real estate, 306. 
 
 of contracts, 331. 
 distribution of avails, 333. 
 
 commission on do., 339. 
 distribution on sale under a power, 341. 
 compelling executors, &c. to sell, 344. 
 
 assent of, to legacy, 379. 
 when to receive the security belonging to infants, 385. 
 his duty to invest money for do., 385. 
 when to order investment in trust company, 386. 
 his jurisdiction with respect to debts, legacies and distribution. See those 
 
 heads. 
 his jurisdiction over claims, 418 etseq. 
 
 to decree payment of debts, &c., 419. 
 in accounting generally, 422 et seq. 
 may protect rights df the wife, 418. 
 to appoint auditors, 432. 
 to appoint guardians for infants, 443, 452. 
 to remove them and take their accounts, 459 et seq. 
 his duty in the admeasurement of dower, 4643 471; 
 for fee bill of 1844, see Appendix, p. 557; 
 
INDEX. 589 
 
 T 
 
 TAXES, 
 
 when preferred in payment, 277. 
 TRUSTEE, 
 
 may elect to account before surrogate, 37v 
 
 as to trustees rendering account, 421-. 
 TRUSTS, 
 
 express to be executed by courts of equity, 36. 
 
 surrogate cannot decree their execution, 421. 
 
 "when testamentary trustees may, 421. 
 TESTAMENTARY 
 
 capacity, subject examined, 66 et seq. See InfAstSj IdIots, UNSoiraD 
 MiKD, Feme Covert and Will, Illiterate. 
 
 guardian appointed only by father, 446. 
 TESTIMONY, 
 
 when taken in writmg and recorded, 165. 
 
 rules of in surrogates' courts, 316. 
 
 in surrogate's court. See Evidence, 174 to 184. 
 
 two witnesses, at least, to the will must be produced and examined, 
 104, 176. 
 
 opinions, how far admissible, 179, 182'. 
 
 order of proofs, 183. 
 
 on sales of real estate, 316. 
 TOMBSTONES, 
 
 how far allowed as a funeral expense, 271, 272, 
 
 u 
 
 UNDUE INFLUENCE, 
 
 when it avoids a will, 91, 92. 
 UNSOUND MINDi See Lotatics, &c., 72. 
 
 VACANCY 
 
 in office of surrogate, regulations concerning; 54. 
 VESTED LEGACIES, 
 
 doctrine of, 353. See title Lapse-. 
 
590 INDEX. 
 
 w ^ 
 
 WIDOW, 
 
 when a party to sales of real estate, 312. 
 
 and when not, 313. 
 WILL, 
 
 its origin, nature and incidents, 56. 
 from what time a will speaks, 58. 
 wherein it differs from a deed, 58, 60. 
 • codicil to a will, 58. 
 
 is revocable during the life of the testator, 58. 
 
 effect of domioil upon, 59. 
 
 must conform to the law of the country where it is made, 59. 
 
 mutual wiUs are unusual, 60. 
 
 probate of, conclusive as to personalty, 60. 
 
 of real and personal property, must be admitted to probate, 63. 
 
 requisites to a vahd execution, the same in both cases, 63. 
 
 except as to age of testator, 64. 
 nuncupative wills, what, 64. 
 who capable of making wUls, 65, 66. 
 
 persons incapable — infants, 66, 67. 
 
 idiots, 67, 68. 
 
 blind, deaf and dumb, 68, 69, 70. 
 
 how they may declare their intention and request the witnesses to 
 sign, 69. 
 
 written by the testator, a holograph, 70. 
 of illiterate person, what precautions necessary, 71. 
 should be read to him, 72. 
 
 unsound mind, meaning of the term, 72. See Lunatic, Idiot, Insanitt. 
 will deficient in natural dutyj what, 82. 
 in old age, may be made, 84. 
 by the imbecile, 87. 
 by the drunkard, 88. 
 under duress, 89. 
 
 fear, fraud, undue influence, 90, 91. 
 by married women, 92 to 95: 
 by persons disquaUfied by crimes, 95-97. 
 form and manner of making, 97. 
 different sorts of wills and codicils, 97. 
 statutory requirements in making, 97, 98. 
 
 subscription, attestation, number of witnesses and request to do. 98. 
 rule at common laW, 98. 
 as to signing by mark, 98. 
 in presence of the witnesses, 100, lOli 
 how by a blind or deaf and dumb, 101. 
 
INDEX. 591 
 
 WILL — continued. 
 
 publication how made, 102, 103. 
 number of witnesses, 104. 
 testator must request witnesses to attest, 104. 
 signing by a mark, 105. 
 witness to write liis own name, 105. 
 add his place of abode, 105. 
 should attest it at the time, 106. 
 should become such at request of the testator, 106. 
 the request may be proved by circumstances, 107, 108. 
 witness' failure to reooUeot, 108. 
 attestation clause should be added, 109. 
 form and manner of will, 112. 
 what words pass a fee, 112. 
 on what to be written, 113. 
 and with what instrument, 113. 
 may be written in any language, 114. 
 written by party benefited, effect of, 114. 
 revocation of, how made, 118. 
 
 by subsequent will, 118. 
 
 by subsequent act, 121. 
 
 by cancellation, &c. 123. 
 
 by change of condition, as by marriage and birth of a child, 
 127. 
 lost or destroyed, how proved, 125. 
 implied and partial revocations, 128, 129. 
 republication of, 132, 134. 
 
 its production before surrogate compelled by subpoena, 150, 151. 
 to be returned on demand, 161. 
 of foreigner, when and how proved, 162, 163. 
 effect of domicU upon, 165. 
 commission to prove, 165. 
 to be recorded, 166. 
 
 when copy to be sent to secretary of state, 166. 
 nuncupative, must be admitted to probate, 167. 
 of real estate, to be proved and recorded, 167. 
 former practice, 167, 168. 
 present practice, 170. 
 parties to the proceeding, 170, 171. 
 commenced by citation, 171. 
 witnesses to be examined, 172. 
 certificate of proof to be indorsed, 173. 
 when to be deposited with surrogate, 173. 
 direction as to payment of debts, 287, 288. 
 
592 INDEX. 
 
 ^ILL — continued. 
 
 what direction in, constitutes a charge on real estate, 328, 329, 371. 
 
 will and codicil construed together, 370, See title Legacy. 
 
 construction of, generally, 369, 
 
 with regard to thing bequeathed, 370, 
 to person of legatee, 373. 
 to ambiguity, 376, 377. 
 WITNESSES, 
 
 may be subpcenseed in any county, 44. 
 
 testimony of, when abroad, taken by commissioner, 45, 
 
 must be two to a will, 98. 
 
 must sign their names at request of testator, 98. 
 
 must be present at the subscription, 100, 
 
 when may sign by mark, 100. 
 
 .must write opposite his name his place of residence, under penalty, 104, 
 
 the omission does not avoid the will, 104. 
 
 must sign at the time the wiU is executed, 106. 
 
 testator's request to, may be inferred, 107, 108, 
 
 failure to recoUect does not invahdate, 108, 
 
 witness being named as executor, 110, 112, 
 a legatee or creditor. 111, 
 
 THE END, 
 
fifi}'::: 
 
 ttr 
 
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