•',;\i l.'ii'. 
 
1275 
 
 Cornell University Law Library 
 
 The Moak Collection 
 
 PURCHASED FOR 
 
 The School of Law of Cornell University 
 
 And Presented February 14, 1893 
 
 IN HEnORY OF 
 JUDQE DOUGLASS BOARDMAN 
 
 FIRST DEAN OF THE SCHOOL 
 
 By his Wife and Daughter 
 A. M. BOARDMAN and ELLEN D. WILLIAMS 
 
KFN5210'm12" "s/T"" """"^ 
 ^'^^ uniifflK? JH!?.?,,;!. foWRlef e manual 
 
 3 1924 022 809 440 
 
w W> 
 
 Cornell University 
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 The original of this book is in 
 the Cornell University Library. 
 
 There are no known copyright restrictions in 
 the United States on the use of the text. 
 
 http://www.archive.org/details/cu31924022809440 
 
THE 
 
 EXECUTOR'S GUIDE 
 
 COMPLETE MANUAL FOR EXECUTORS, 
 ADMINISTEATGES AND GUAEDIANS, 
 
 PULL EXPOSITION OE THEIK EIGHTS, PRIVILEGES, DUTIES 
 
 AND LIABILITIES, AND 0¥ THE EIGHTS OE WIDOWS 
 
 IN THE PEESONAL ESTATE, AND TO DOWEE. 
 
 SECOND EDITION, 
 
 EEVISEC AND GREATLY ENLARGED. 
 
 EGBERT H. McCLELLAISr, 
 
 OOXraSElOE, ETC., AND FOKMEB STnSoeATB OT EBNBSELAEB COUHTT. 
 
 ALBANY: 
 
 WILLIAM GOULD & SON, 
 
 LAW BOOKSELLERS AND PUBLISHERS. 
 
 1873, 
 
Entered according to Act of Congress in tlie year 1873, 
 
 ET 
 
 ROBERT H. McOLBLLAN, 
 
 in the office of the Librarian of Congress at 
 Washington, 
 
PREFACE TO FIRST EDITION. 
 
 I iave prepared this work expressly for execu- 
 tors, administrators and guardians, who will find 
 in it, concise but full directions for their conduct 
 in the discharge of their responsible duties. I 
 have quoted the statutes in full, and have avoided 
 explanations of them as much as possible, having 
 observed heretofore, that when the language of the 
 statute is clear, explanations only embarass the 
 the mind ia coming to a proper conclusion. 
 
 The legal profession, will find ia this work a 
 full collection of the statutes, collated properly, 
 and references to authorities which will prove' use- 
 ful to them. 
 
 I submit the work to the public, hoping that it 
 may be of use to a class having great responsibili- 
 ties, for which they are illy paid ; and to the pro- 
 fession, believing it will lighten their labors. 
 
 Troy, July 20, 1862. 
 
 THE AUTHOR. 
 
PREFACE TO SECOND EDITION. 
 
 I have received so many flattering testimonials 
 of the utility of the first edition of this book that 
 in preparing the second edition I have added 
 much matter -wrhich I beUeve will prove of great 
 value. 
 
 I have incorporated all the leading decisions 
 announced since the issue of the former edition ; 
 re-written the text where it was rendered neces- 
 sary by legislation or over-ruUng decisions, and 
 I have added what I believe to be the most com- 
 plete collection of precedents yet published. I 
 trust that the conciseness and simplicity of the 
 precedents will make them particularly acceptable 
 to the profession. 
 
 I am especially indebted to N. C. Moak, Esq. of 
 Albany, for some carefully prepared precedents and 
 would express here, my grateful acknowledgments. 
 
 Troy, March 1st 1873. 
 
 EOBT. H. McCLELLAN. 
 
CONTENTS. 
 
 Chapter I. 
 
 Page. 
 
 Of wills and manner of execution, i 
 
 Chapter II. 
 
 As to the powers and duties of the executors named before 
 offering the will for proof, 7 
 
 Chapter III. 
 
 Who may appoint an executor, and who may serve as such. 
 Disability, howremoved, 12 
 
 Chapter IV. 
 The duty of an executor in proving the will, 16 
 
 Chapter V. 
 
 The proceedings on presentation of the petition for proof of 
 the will and the service of the citation, 19 
 
 Chapter VI. 
 
 Proceedings on return of citation and of proving the will, 
 and of new trial within one year, 23 
 
 ' Chapter VII. 
 
 Of granting letters testamentary, the renunciation of exe- 
 cutors, letters of administration with the will annexed. 
 How executors compelled to give bond, 30 
 
Vi CONTENTS. 
 
 Chaptee VIII. 
 
 Page. 
 Letters of administration, 36 
 
 Chapter IX. 
 
 Greneral provisions in regard to letters testamentary and of 
 administration. For what cause letters are revoked, etc., 48 
 
 Chapter X. 
 
 Of the duties of executors and administrators in regard to 
 the inventory ; and the rights of the widow and the mi- 
 nor children, 53 
 
 Chapter XI. 
 
 Eeturn of inventory ; how compelled ;^ and effect of not 
 returning it, 67 
 
 Chapter XII. 
 
 Of the collection of the estate ; compromising debts due 
 the estate and advertising for claims, 68 
 
 Chapter XIII. 
 Of the payment of debts and legacies, 82 
 
 Chapter XIV. 
 
 Of the accounting of executors and administrators ; the 
 final settlement and distributions of estates, and of com- 
 missions, no 
 
 Chapter XV. 
 Of the mortgage, lease or sale of the real estate of a deceased 
 person for the payment of his debts, 128 
 
CONTENTS. Vll 
 
 Chapter XVI. 
 
 Page. 
 A creditor may compel the executor or administrator to 
 
 mortgage, lease or sell the real estate of the deceased to 
 
 pay debts, 150 
 
 Chapter XVII. 
 Gruardians and Wards, 158 
 
 .Chapter. XVIII. 
 
 Accounts of guardians, how compelled to account and 
 how removed, or relieved of their trust 173 
 
 Chapter XIX. 
 
 Dower of widotr, and how admeasured, 184 
 
 Appendix, 197 
 
BRKATA. 
 
 On Page 2 in 3d line for assigned read, acquired. 
 
 108 in 17tli line for competent read, computed. 
 
 117 in 8tli line from bottom, for representative read, repre- 
 
 112 in 16th line for Ha/rbroueh read, Masbrouek. 
 148 in 11th. line between who and Tiame, insert momM. 
 170 in 16th linfe, in two places for rents read rests. 
 191 line 4, sem/ng read scigire. 
 
EXECUTOR'S 
 
 ADMINISTRATOR'S GUIDE. 
 
 CHAPTER I. 
 
 Or Wills and Manners of Execution. 
 
 A will is a disposition of an estate by a person 
 called a testator, to. take effect upon his death. 
 
 All persons of the age of twenty-one years, ex- 
 cept idiots and persons of unsound mind, may so 
 dispose of their real estate ; and males of the age 
 of eighteen years, and females of the age of sixteen 
 years, may in like manner dispose of their personal 
 property. 
 
 Married womenj formerly disabled by law from 
 making a valid will, are by the statutes of 1848, 
 and 1849, and 1869, expressly empowered to devise 
 and bequeath their property, in the same manner 
 as if unmarried. 
 
 But these statutes, before 1860, gave to a mar- 
 ried woman no power to dispose by will of pro- 
 1 
 
2 EXECUTOR'S AND ADMINISTEATOE'S GUIDE. 
 
 perty acquired before the passage of the acts, nor 
 of the interest accruing after the acts, upon money 
 previously assigned by her, nor of the proceeds of 
 her own labor. [Ryder y. Hulse, 24 N. Y., 372; 
 see also Woodhech v. HaveTis, 42 Barb., 66.) 
 
 Wills shall be in writing, ■except in the case of 
 soldiers in actual military service, or mariners at 
 sea (2 K. S., 60; 3 R. S., 5th ed., 141). 
 
 Special forms are not required in drawing a 
 will; it is enough that the intention of the tes- 
 tator is plainly expressed ; but it is well to follow 
 certain forms of expression which have been long 
 in use, in the formal parts. 
 
 The execution of a will shall be accompanied 
 with certain formalities regulated by statute, to the 
 intent that, as the will is not to be proved until 
 after the death of the testator, it will fully appear 
 that in making it, he was aware of the character 
 of the instrument, and was not imposed upon. 
 
 §40. (2-E. S., 63; 3 R. S., 5th ed., 144). 
 " Every last will and testament of real or personal 
 property, or both, shall be executed and attested 
 in the following manner: 
 
 "1. It shall be subscribed by the testator, at the 
 end of the will. 
 
 "2 Such subscription shall be made by the 
 testator, in the presence of each of the attesting 
 witnesses,"- or shall be acknowledged by him to 
 
OP WILLS AND MANNER OF EXECUTION. 6 
 
 have been so made to each of the attesting wit 
 nesses. 
 
 " 3. The testator, at the time of making such 
 subscription, or at the time of acknowledging the 
 same, shall declare the instrument so subscribed, to 
 be his last will and testament. 
 
 [Unless the testator declares, or gives the wit- 
 nesses, in some form, to understand at the time 
 of making or acknowledging his subscription, 
 that the instrument signed is his will, there is no 
 sufficient publication. Bagley v. Blachman, 2 
 Lansing, 41.] 
 
 "4. There shall be at least two attesting wit- 
 nesses, each of whom shall sign his name as a 
 witness at the end of the will, at the request of 
 the testator. 
 
 [It does not seem to be necessary that the wit- 
 nesses should sign their names in the presence of 
 the testator. Buddqn v. McDonald, 1 Brad., 352.] 
 
 § 41. " The witnesses to any will shall write 
 opposite to their names their respective places of 
 residence ; and every person who shall sign the 
 testator's name to any will by his direction, shall 
 write his own name as a witness to the will. Who- 
 ever shall neglect to comply with each of these 
 provisions, shall forfeit fifty dollars, to be recovered 
 by any person interested in the property devised 
 or bequeathed, who shall sue for the same. 
 
4 EXECUTOE'S AND ADMINISTEATOE'S GUIDE. 
 
 "Such omission shall not affect the validity of 
 any will ; nor shall any person, liable to the penalty 
 aforesaid, be excused or incapacitated on that ac- 
 count from testifying respecting the execution of 
 such will." 
 
 It is sufficient that the testator, when executing 
 the will, makes the declaration and request to the 
 witnesses, in answer to a question put to him. 
 
 An attestation clause is not absolutely necessary, 
 but it is used to perpetuate the transaction in the 
 miads of the witnesses, and to assist them to recall 
 the facts when they shall come to be sworn. • It 
 should always be appended. 
 
 (For form of will, see Appendix No. 1 and Codicil 
 No. 2). 
 
 NUNCUPATIVE OE UNWEITTEN WILLS. , 
 
 To constitute a valid unwritten will, made by a 
 soldier, it must be proved, that he was in actual 
 service, either of the United States or the State of 
 New York ; that, in prospect of battle, exposing 
 his life, or in immediate danger of death from 
 disease or wounds in such service, he declared 
 what disposition he desired to make of his per- 
 sonal property, under such circumstances as to 
 make it appear that he intended such disposition 
 to be his will. 
 
OF WILLS AND MANNER OP EXECUTION. 5 
 
 He may make this declaration himself, or in 
 answer to questions put to him by another, and it ' 
 is not necessary, even, that he request any other 
 to witness the declaration as his will. One wit- 
 ness, if credible, may establish the will before the 
 surrogate of the county where the deceased resided, 
 who will record the testimony proving the decla- 
 ration made as a will; and if he considers it proved, 
 he will issue letters upon it to the person named 
 as executor by the testator, and it will operate as 
 a valid disposition of personal estate. 
 
 A mariner at sea, whether in the merchant ser- 
 vice or the service of the government, may make 
 such a will in the same manner. 
 
 The question has arisen as to what constitutes 
 being at sea, and it has been held (8 N. Y. Eep., 
 196) , that a master of a vessel lying at anchor in a 
 bay of the ocean, near the land, where the tide ebbs 
 and flows, was at sea in the meaning intended by the 
 statute, the point of the decision being, apparently, 
 that because he was in tide water he was at sea. 
 
 [It* was held that the Delaware river opposite 
 Philadelphia was not at sea, Thackeray v. Boat 
 Farmer, Gilpin's R., 524. The Mississippi river at 
 Vicksburgh held not at sea, Matter of William 
 Gwin, 1 Tucker, 44.] 
 
 This rule.df carried out — as it is reasonable to 
 suppose it will be — will include mariners on 
 
b EXECUTOR'S AND ADMINISTRATOR'S GUIDE. 
 
 vessels engaged in the coasting trade, even if they 
 shall die leaving such a will in the Hudson river 
 at any place below Troy. 
 
 In one English case, under a similar statute, a 
 mariner being on shore at Montevideo, in South 
 America, received a wound and died, having first 
 made a nuncupative will, which was held valid. 
 
 A will may be revoked by the testator by de- 
 stroying it, or by executing a new will expressly 
 revoking the former one. 
 
POWERS, ETC., BEFORE PROOF OF WILL. 
 
 CHAPTER II. 
 
 As TO THE Powers and Duties of the Executors 
 
 NAMED BEFORE OFFERING THE WiLL FOR PrOOF. 
 
 On learning the fact of his appointment as an 
 executor and the death of the testator, it becomes 
 the immediate duty of the person so appointed, to 
 decide whether or not he will take upon himself 
 the discharge of the trust to which he is nominated , 
 and to give notice to those interested in the will, 
 of his decision. 
 
 There are two ways in which an executor may 
 relieve himself of the trust before the letters are 
 issued to him. 
 
 First — by remaining passive, and taking no 
 steps in the matter. 
 
 Second — by making and filing a renunciation. 
 (See form and directions, Appendix No. 3.) 
 
 In case more than one person is appointed in the 
 will, any of them so appointed may decline to act, 
 or renounce, and the remaining one or ones acting, 
 will have full power to execute the will, as if all 
 appointed assumed the trust. 
 
 The duty of the executors, before the will is 
 
8 EXECUTOR'S AND ADMINISTRATOR'S GUIDE. 
 
 proved, in relation to the property of the deceased, 
 is regulated by statute. 
 
 § 16. (2 R. S., 71 ; 3 R. S.., 5th ed., 156). « No 
 executor named in a will,' shall, before letters testa- 
 mentary are granted, have any power to dispose of 
 any part of the estate of the testator, except to pay 
 funeral charges, nor to interfere with such estate 
 in any manner, further than is necessary for its 
 preservation." 
 
 From this it follows, that the executor named 
 may sell the effects of the deceased, to the extent 
 necessary to raise money to pay the necessary 
 funeral expenses, and that he shall take charge of 
 the estate to preserve it. 
 
 In regard to what are proper funeral expenses, 
 see hereafter'. For the purpose of preserving the 
 property, the executor need not take it into his 
 pfifssession, or remove it from the charge of the 
 family of the deceased, unless he has good reason 
 to suppose that it is being wasted or neglected — 
 in which case he has power to take it, and he should 
 do so for his own protection. 
 
 He may, doubtless, convert into money perishable 
 articles which could not be kept long enough to be 
 inventoried. 
 
 Where the effects are in charge of persons not 
 interested in the preservation of them, the executor 
 ought to care for them and remove them, if neces- 
 
POWERS, ETC., BEFORE PROOF OP WILL. 9 
 
 sary, and he will be protected in taking steps for 
 that purpose. 
 
 He may take the papers of the deceased and seal 
 them up, awaiting further authority, and deposit 
 them in a place of security. 
 
 The will of the deceaseid should be opened and 
 its contents ascertained as soon as practicable after 
 his death, for the purpose of learning if any direc- 
 tions are contained in it in regard to his funeral, 
 or the immediate care of his family. 
 
 There is in some parts of the state, a practice of 
 waiting for six weeks after the death of the testator 
 before opening the will, or taking any steps to 
 prove it. This is founded in a sentiment of respect 
 for the deceased, but is a mistaken exercise of it ; 
 for the best way to manifest such respect, is to 
 regard the wishes of the deceased and take imme- 
 diate steps to carry them into effect, which can 
 only be done'by proving his will and caring for ik.e 
 estate which he accumulated for his family. 
 
 In this connection, it may be well to State the 
 liabilities . of any unauthorized persons taking 
 possession of property of the deceased, as regu- 
 lated by law. § 60. (2 R. S., 81. 3 R. S., 5th 
 ed., 168.) 
 
 [When an executor de son tort afterwards takes 
 letters testamentary, his responsibility relates back 
 
10 EXECUTOR'S AND ADMINISTRATOR'S GUIDE. 
 
 to the death of the decedent, or to his own first 
 act of unauthorized interference, Estate Ellen Far- 
 rell, 1 Tucker, 110.] 
 
 § 60. " Every person who shall take into his posses- 
 sion any of the assets of any testator or intestate, 
 without being thereto duly authorized as executor, 
 administrator or collector, or without authority 
 from the executor, administrator or collector, shall 
 be liable to account for the full value of such assets, 
 to every person entitled thereto, and shall not be 
 allowed to retain or deduct from such assets for any 
 debt due to hini " from the deceased, personally, in 
 his lifetime. But he may retain any such assets 
 for a sum due to him for care taken of them, or for 
 labor expended on them, and demand payment of 
 a lien so acquired before delivering them up, or he 
 may have such sum allowed him in accounting for 
 the goods or the value thereof on a trial at law- 
 
 ^17. (p. 449. 3 E. S., 5th ed., 747.) "No 
 person shall be liable to an executor of his own 
 wrong, for having received, taken or interfered with 
 the property or effects of a deceased person, but 
 shall be responsible as a wrongdoer, in the proper 
 action, to the executors or general or special ad- 
 ministrators 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." 
 
POWERS, ETC., BEFORE PROOF OF WILL. 11 
 
 It may be remafked that any one performing 
 the Christian service of burying a deceased person 
 will be allowed his reasonable funeral expenses out 
 of the estate of the deceased, as a debt, preferred 
 above all other debts. 
 
12 EXECUTOR'S AND ADMINISTRATOR'S GtTIDE. 
 
 CHAPTER III. 
 
 Who may Appoint an Executor and who may 
 . Serve as such. Disability, how Removed. 
 
 The statutes, as amended by the act of 1848 and 
 1849, inresj)ect tothe rights and powers of married 
 women, provide that " all persons except idiots, 
 persons of unsound mind and infants, may devise 
 their real estate by last will and testament," and 
 that " every male person of the age of eighteen 
 years or up^^ards, and every female of the age of 
 sixteen years or upwards, of sound mind and 
 memory, and no others, may give and bequeath 
 his or her personal estate by will, in writing." 
 An alien cannot take or give real estate by devise, 
 but his will in regard to personal property will be 
 carried out. 
 
 The power to make a will involves the power to 
 appoint executors, but — 
 
 § 3. (2 R. S., 69 J 3 R. S., 5th ed., 154). "No 
 person shall be deemed competent to serve as an 
 executor, who at the time the will is proved shall 
 be: 
 
 "1. Incapable, in law, of making a contract 
 (Except married women). • 
 
 " 2. Under the age of twenty-one years. 
 
APPOINTMENT OF EXECUTOR. 13 
 
 " 3. An alien, not being an inhabitant of this 
 State. {McQregor v. McGregor, 1 Keyes, 113.) 
 
 "4. Who shall have been convicted of an infa- 
 mous crime. 
 
 " 5. Who, upon proof, shall be adjudged incom- 
 petent, by the surrogate, to execute the duties of 
 such trust, by reason of drunkenness, improvidence, 
 or want of understanding. [McGregor v. Mc- 
 Gregor, 1 Keye^, 133.) 
 
 " Or one whose circumstances are so precarious 
 as not to afford adequate security for the adminis- 
 tration of the estate. (2 E. S., 70, § 6, 7.") 
 
 Married women are capable of acting as execu- 
 trices, and of receiving letters testamentary as 
 though they were single wompn ; and their bonds, 
 given upon the granting of such letters, shall have 
 the same force and effect as though they were not 
 married. (Chapter 782, Laws of 1867, § 2.) 
 
 Before the passage of the act last quoted, letters 
 could only issue to a married woman upon the 
 consent of her husband in writing, filed with the 
 surrogate, and by giving such consent he became 
 liable for her acts jointly with her. 
 
 The disability arising from the minority of the 
 person appointed, is at an end at the arriving of the 
 person appointed at full age; of an alien, on his 
 becoming naturalized, or becoming an inhabitant of 
 this State. 
 
14 EXECUTOR'S AND ADMINISTRATOR'S GUIDE. 
 
 The first subdivision also includes, for example, 
 idiots and lunatics and habitual drunkards, in 
 charge of committees ; and the disability ceases in 
 case of the lunatics and drunkards when they 
 are discharged from the custody of their committee, 
 and are judicially declared to be of sound mind, 
 or capable of managing their own affairs. 
 
 Upon the fourth subdivision it may be remarked 
 that however guilty or base the executor appointed 
 may be, conviction must precede the objection; 
 and in case of contest before the surrogate, the 
 record of conviction must be produced. (1 Barb., 
 Gh. B., 47 ; Harrison v. McMahon, 1 Brad., 289 ; 
 McMahon v. Harrison, 6 N. Y., 443 ; Emerson v. 
 Bowers, 14 N. Y., 449.) 
 
 The in(!ompetency mentioned in the fifth sub- 
 division arises from drunkenness, improvidence, 
 , or such a want of care and foresight as renders the 
 person appointed a poor manager of his own 
 affairs ; or want of understanding, which, it is sup- 
 posed, is intended to mean gross ignorance of 
 business, as well as natural incapacity, and, pro- 
 bably inability to read and write would ordinarily 
 be a sufficient objection. A professional gambler 
 is presumptively incompetent. {McMahon v. Harri- 
 eon, 6 N. Y., 443, 1 Brad., 289.) 
 
 "Any surrogate may, in his discretion, refuse 
 the application for letters testamentary, or letters 
 
APPOINTMENT OP BXECUTOE. 15 
 
 of administration, of any person unable to read 
 and write the English language." Chap. 782, laws 
 of 1867, §5." 
 
 These objections are addressed to the discretion 
 of the surrogate, and may be made at any time 
 before the issuing of letters, but the decision is prob- 
 ably open to review before a superior or appellate 
 tribunal. 
 
16 EXECUTOR'S AND ADMINISTRATOR'S GUIDE. 
 
 CHAPTER IV. 
 
 The Duty of an Executor in Proying the Ay ill. 
 
 There is no absolute necessity that application 
 for the probate of a will be made by an executor ; 
 it may be made by any person interested. Even a 
 creditor may make the application and procure the 
 necessary citation, in case those more immediately 
 interested neglect the duty. But the application 
 should be made, usually, by the one who intends to 
 act as executor, and he should, by diligent inquiry, 
 ascertain, if possible, the names and residences of 
 the heirs at law and next of kin bf the testator, so 
 as to inform the surrogate of the requisite facts. 
 
 § 5. (S. L. ; 1837, chap. 460-; 3 R. S., 5th ed., 
 146). "On application to the surrogate, he shall 
 ascertain, by satisfactory evidence, the following 
 facts : 
 
 " 1 If the will relates exclusively to real estate, 
 the names and places of residence of the heirs of 
 the testator, or that upon diligent inquiry the 
 same cannot be ascertained ; 
 
 " 2 If the will relates exclusively to personal 
 estate, the names and places of residence of the 
 widow and next of kin of the testator, or that upon 
 diligent" inquiry the same cannot be ascertained ; 
 
EXECUTOR'S DUTY IN PROVING WILL. 17 
 
 (I 
 
 3. If the will relate to both real and personal 
 estate, the names and places of residence of the 
 heirs, widow and next of kin of the testator, or that 
 upon diligent inquiry the same cannot be ascer- 
 tained." 
 
 The diligent inquiry required, is seeking the 
 requisite information from those who, by reason 
 of relationship to the testator, or intimate ac- 
 quaintance, may be expected to know of his family. 
 
 I would here caution parties not to confound the 
 terms heirs and next of kin in the statute, with 
 legatees and devisees in fhe will. The terms heirs 
 and next of Mn imply blood connection, while the 
 relation of legatee or devisee arises from the will, 
 and the testator and the legatee or devisee, may be 
 strangers in blood as well as in fact. . 
 
 Heirs are distinguished also from next of kin ; 
 the first taking the real estate by descent, and the 
 last taking the personal property by distribution. 
 Thus the heirs of a deceased person are — 1. His 
 children lawfully begotten, if he have any, and the 
 children of such as shall have died; 2. His father, 
 if he be living ; 3. His mother, if she be living ; 
 4. His collateral relatives. (3 E. S., 41.) 
 
 The next of kin are — 1. The children ; 2. The 
 father; 3. The mother, and brothers, and sisters, 
 and the legal representatives (that is, the children) 
 of such as shall have died; 4. His collateral rela- 
 
18 BXECtTTOE'S AND ADMINISTRATOE'S GUIDE. 
 
 tives, not beyond brothers' and sisters' children. (2 
 R. S., 96 ; 3 R. S., 5th ed., 183.) 
 
 The heirs at law and next of kin of an illegiti- 
 mate, if he have no children, are — 1. His mother ; 
 2. His relatives on the part of his mother. (S. L., 
 1845, chap. 236.) " And illegitimate children born 
 since 1855, in default of lawful issue, are heirs at 
 law and next of kin of theirmothers." (S. L., 1856", 
 chap. 547.) 
 
 Having ascertained these ifacts, they should be 
 embodied in a petition to the surrogate (see form. 
 Appendix No>l§), which, together with the will, 
 should be presented to that officer, who will issue 
 a citation to the proper parties. 
 
 If the executor has not the will in his possession, 
 or if he cannot obtain it, the petition should state 
 in whose possession it is, and the surrogate will 
 issue a subpoena to the person holding it and com- 
 pel him to produce it. 
 
 K there be no executors named in the will, or if 
 he or they be incompetent, have removed to a 
 great distance, or are dead, the duties above speci- 
 fied devolve upon any person interested in the will, 
 who may proceed as above directed. 
 
PROCEEDINGS ON PETITION FOR PROOF. 19 
 
 CHAPTER V. 
 
 The Proceedings on Presentation of the Petition 
 FOR Proof of the Will and the Service of the 
 Citation. 
 
 The petition having been presented to the surro- 
 gate, containing the information required above, he 
 will issue a citation to the proper persons, requiring 
 them, at a time and place therein mentioned, to 
 appear before him, and attend the probate of the 
 wiU. (See order and citation in appendix.) 
 
 The citation shall be directed to the proper per- 
 sons, by name, stating their places of residence, if 
 they can be ascertained. 
 
 § 8. (S. L. 1827, chap. 460, as amended 1840 
 and 1863 ; 3 R. S., 5th ed., 147.) " The citation 
 shall be served on the persons to whom it is di- 
 rected, as follows : 
 
 " 1. On such as reside in the same county with 
 the surrogate, or an adjoining county, by deliver- 
 ing a copy to such person, at least eight days before 
 the day appointed for taking the proof, or by leav- 
 ing 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 
 
20 EXECUTOR'S AND ADMINISTRATOR'S GUIDE. 
 
 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 delivering a copy personally to such per- 
 son, or leaving it at his dwelliag-house or other 
 place of residence, in the mannier and under the 
 circumstances above mentioned, at least fifteen 
 days before the day appointed for taking the proof. 
 
 If such citation is directed to a minor under the 
 age of fourteen years, withia this state, whose 
 name and residence can be ascertained, a copy 
 thereof shall be delivered to such minor personally, 
 and also to his father, mother, or guardian ; or if 
 there be none within this state, then to any per- 
 son having the care and control of such minor, or 
 with whom he shall reside, or in whose service he 
 shall be employed. 
 
 If any party to be served be insane or an idiot, 
 service shall be made on his committee ; if there 
 be no committee, then service shall be made on 
 the lunatic or idiot, and also on the person in 
 whose care or custody he may be. (S. L., 1872, 
 ■ chap 693, § 1.) 
 
 " 3. On such persons as do not reside in this 
 state, citations may be served by delivering a copy 
 personally to such persons, or leaving it at his or her 
 
PROCEEDINGS ON PETITION FOR PROOF. 21 
 
 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 any will ; 
 and on such persons as do not reside in this 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." 
 
 In all cases where service is made by publica- 
 tion, a copy of said citation shall also be mailed to 
 each person so served, at his place of residence or 
 post-office address, if the same can be ascertained, 
 at least thirty days before the return-day thereof. 
 
 The statute requires that the proof of the ser- 
 vice of the citation be by affidavit (S. L., 1837, 
 chap. 460, § 9), but, practically, in case of parties 
 of full age, there can be no doubt that an admis- 
 sion of service signed by the parties, will on proving 
 their signatures, be sufficient, without a formal 
 service of a copy ; and a certificate of service of a 
 sheriff would undoubtedly give the court jurisdic- 
 tion of the persons so served. 
 
 Where, however, all the parties, heirs-at-law and 
 next of kin, are of full age, they may waive the 
 fornlal service, or any service, and by aU uniting 
 in the petition for proof, or by appearing in court 
 and filing a written consent to the course, Ihe sur- 
 rogate will proceed to take proof of the will and 
 
22 EXECUTOR'S AND ADMINISTRATOR'S GUIDE. 
 
 issue letters fortliwith. But a special or general 
 guardian may not waive any formality, his duty 
 being, in fact, to see that all the requirements of the 
 law are complied with. 
 
 Should it be necessary to travel in making ser- 
 vice of the citation, the executor may be allowed 
 his expenses of such travel, or he may employ a 
 person to make the service, and he may be allowed 
 a reasonable payment made to such person. 
 
 It will be well to procure from the surrogate, on 
 'VT.iaking the citation, a subpoena for the witnesses 
 resident in this state, with the necessary tickets ; 
 and the fees of such witnesses are the same as in 
 courts of record, to wit, eight cents per mile for 
 going to court only, and fifty cents for each day's 
 attendance. 
 
PROCEEDINGS ON RETURN OP CITATION. 23 
 
 CHAPTER VI. 
 
 Proceedings on Retuen of Citation and of Prov- 
 ing THE Will, and of new Trial within one 
 Year. 
 
 On the day appointed for proof, if the citation 
 shall not have been duly served on all the parties 
 who ought to receive notice, the surrogate may 
 adjourn the proceedings and issue a further cita- 
 tion (S. L. 1837, chap. 460 ; 3 R. S., 5th ed., 148), 
 and, as may sometimes happen, should the name of 
 some proper persons have been omitted in the 
 petition for probate, a supplementary petition may 
 be filed at any time, on discovering the omission, 
 and a new citation issued to bring them into court. 
 
 If however, the service is complete, the surro- 
 gate will ascertain who of the pa,rties named in 
 the citation are minors, or, by chap. 693, of Laws 
 of 1872, lunatics or idiots, and will appoint a 
 special guardian for such minors. (See proof 
 service of citation in appendix.) 
 
 [The special guardian in probate proceedings 
 should be a lawyer, for the special guardian must 
 appear in person, and no other than an attorney 
 can appear in the surrogate's court except in his 
 own behalf. Will of Pierre Spicer, 1 Tucker, 90. 
 
24 EXECUTOR'S AND ADMINISTRATOR'S GUIDE. 
 
 See order for special guardian and consent in 
 appendix.] 
 
 The special guardian so appointed shall appear 
 in person before any further steps are taken and, 
 on his appearance, the surrogate will cause the 
 witnesses to be examined before him. 
 
 At this point, the party offering the will for pro- 
 bate, may learn for the first, that the probate is 
 contested. If this should be so, and the executor 
 or other party offering the .will, be but remotely 
 interested in the matter, it is suggested that he 
 turn over the responsibility of the contest to those 
 more nearly interested in proving the will, as 
 legatees or devisees, by immediately notifying them 
 that the probate is contested, that they make the 
 proper appearance before the surrogate and take 
 charge of their interests. They will have leave 
 to appear upon petitions. (See petitions and order 
 in appendix.) .As counsel will necessarily be 
 employed, if the probate is contested, it is not neces- 
 sary to treat further of that branch of the subject 
 here. 
 
 At least two of the witnesses, if so many are 
 living in this state, and of sound mind, and are not 
 disabled from age, sickness, or infirmity, from 
 attending, shall be produced and examined; and 
 the death, absence (from the state), insanity, sick- 
 ness, or infirmity of any of them shall be satisfac- 
 
PROCEEDINGS ON RETTTEN OP CITATION. 25 
 
 torily shown to the surrogate taking such proof. 
 (S. L., 1837, fehap., 460 ; 3 R. S., 5th ed., 148.) 
 
 If any such aged, sick or infirm witness resides 
 in the same county with the surrogate, the surro- 
 gate will, without making unnecessary delay, 
 proceed to take the examination of such witness, 
 at his dwelling-house or other place of residence. 
 K he reside in any other county of this state, the 
 surrogate will direct that his examination be 
 taken by the surrogate of such county. 
 
 If all the witnesses are out of the state, dead, or 
 insane, or incompetent to testify, the surrogate 
 may receive proof of the handwriting of the tes- 
 tator and of the subscribing witnesses, and of such 
 other facts and circumstances as would be proper 
 to prove such will on a trial at law. 
 
 [Proof of handwriting cannot be given where 
 the subscription is by mark thus + . So said Sur- 
 rogate Tucker, Matter of Edward Walsh, 1 Tucker, 
 132. We can not see why an habitual signature 
 by mark could not be proved as well as the habit- 
 ual forming of certain letters.] 
 
 But in such case, the surrogate can only record 
 the will as a will of personal estate. (S. L. 1837, 
 chap. 460; 3 R.. S., 5th ed., 150.) And a com- 
 mission may also issue, as in the Supreme Court, 
 to take the testimony of witnesses to the will, and 
 other testimony. ' 
 
26 EXECUTOR'S AND ADMIN ISTRATOE'S GUIDE. 
 
 If it shall appear that the testator signed his 
 will in the presence of at least two witnesses, 
 publishing the instrument as his last will and 
 testament; in their presence, declaring it to be 
 such ; or if, after signing, he acknowledged to such 
 witnesses that he had*signed it, publishing and 
 declaring it as above; that he requested them_to 
 sign as witnesses ; that they did so sign ; that at 
 that time the testator was of sound mind and 
 memory, of full age to execute a will, and not 
 under any restraint, the surrogate will enter an 
 order that the same be admitted to probate and be 
 recorded as a will of personal estate. To entitle 
 it to be recorded as a will of real estate, it must 
 further appear, that the testator was a citizen of 
 the United States; or if an alien, that he had 
 taken the proper steps to enable him to take and 
 convey real estate. (See depositions on probate, and 
 order for probate in the appendix.) 
 
 [While it may be, that a resident of the United 
 States shall be presumed, in law, to be a citizen, it 
 will be the safer course to prove that the deceased 
 was a citizen, a presumption of which may be 
 raised by proving that he exercised some of the 
 franchises of a citizen, as that he voted. The 
 statute requires that this shall appear.] 
 
 The surrogate will record the will and proofs 
 in accordance with the order, and will attach a 
 certificate to the will, that the same had been 
 
PROCEEDINGS ON RETURN OP CITATION. 27 
 
 duly proved before him, as a will of personal 
 estate or of real and personal estate, as the 
 case may be, and will, on demand, deliver it to 
 the person from whom he received it; 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 execu- 
 tor of such will, or administrator with the will an- 
 nexed, or to a legatee named therein. (2 R. S., 
 66 ; 3 K S., 5th ed., p. 150.) 
 
 The will so proved and certified, together with 
 the proofs thereof, when it relates to real estate, 
 may and should be recorded in the offices of the 
 clerks of the counties in which such real estate may 
 lie, who are required to record and index them, as 
 they are required to record and index conveyances. 
 (S. L. 1846, chap. 182.) 
 
 This provision, although generally overlooked, is 
 becoming constantly of more importance, as the 
 titles to real estate are becoming more compUcated; 
 and I think it advisable, in all cases where the tes- 
 tator held land in a county where he did not 
 reside, to take advantage of it. 
 
 Exemplified copies of wills proved out of the 
 state, devising real estate, may be recorded in the 
 office of the surrogate of the county where such 
 real estate is situated, and shall be presumptive 
 
28 EXECUTOR'S AND ADMINISTRATOR'S GUIDE. 
 
 evidence in all proceedings relating to the lands so 
 devised. (S. L., 1864, p. 746.) 
 
 New Hearing as to Probate within one Year. 
 
 It is provided by the statute (2 R. S., 61, § 30, et 
 seq.), that notwithstanding a will of personal pro- 
 perty may have been admitted-to probate, any of the 
 next of kin to the testator, may at any time within 
 one year after ^uch probate, contest the same, or 
 the validity of such will. For that purpose, such 
 relative shall file in the office of the surrogate by 
 whom the will was proved, his allegations in writ- 
 ing, against the vaHdity of such will, or against the 
 competency of the proof thereof; upon the filing 
 of such allegations, the surrogate shall issue a cita- 
 tion to the executors who shall have taken upon 
 them the execution of such will, or to the adminis- 
 trators with such will annexed, and to all the lega- 
 tees named in such will, residing in this state, or, 
 to their guardians, if any of them be minors, or 
 to their personal representatives, if any of them 
 be dead, requiring them to g,ppear before him on 
 some day to be therein specified, not less than thirty, 
 nor more than sixty days from the date thereof, at 
 his ofl&ce, to show cause why the probate of such 
 will should not be revoked. (See allegations and 
 order in appendix.) 
 'After service of the citation, the executor, or 
 
PEOCBBDINGS ON RETURN OF CITATION. 29 
 
 administrator with the will annexed, shall suspend 
 all proceedings in relation to the estate of the 
 testator, except the collection and recovery of 
 moneys and the payment of debts, iintil a decision 
 shall be had. 
 
 The citation shall be personally served, at least 
 fourteen days before the return day. If any lega- 
 tees named be miniPi, the surrogate will appoint 
 a special guardian for them, and proof will be taken 
 as if no proceedings had been had before on the 
 same will. 
 
 If, , on the hearing, the surrogate shall decide 
 that the will is, for any reason, invalid, or that it 
 is not suflBciently proved to have been the last will 
 and testament of the testator, he shall annul and 
 revoke the probate thereof; if otherwise, he shall 
 confirm such probate. His decision may be ap- 
 pealed from at any time, within three months 
 therefrom. 
 
 , "Whenever the surrogate shall annul the pro- 
 bate, he shall cause notice thereof to be served on 
 the executor named in the letters, or the adminis- 
 trator with the will annexed, and to be pubHshed 
 for three weeks in a newspaper printed in the 
 county. The power and authority of the execu- 
 tor or administrator with the will annexed shall 
 thereupon cease, and he shajl account for all 
 moneys received by him; but all acts done in 
 good faith before notice^ shall be valid. 
 
30 EXECUTOR'S AND ADMINISTEATOE'S GUIDE. 
 
 CHAPTER VII. 
 
 Of GRANTiNa Letters Testamentary. The Renun- 
 ciation OP Executors. Letters of Administra- 
 tion WITH THE Will annexed. How Executors 
 Compelled to Give Bonds. 
 
 After a will of personal estate shall have been 
 proved, the surrogate will issue letters testamentary 
 thereon, to any competent person named as execu- 
 tor, who shall appear and qualify. And they may 
 be granted immediately, unless some person in- 
 terested file an affidavit that he intends to interpose 
 objections to competency, of the executor under 
 the provisions quoted heretofore, on page — (which 
 see) . If such an affidavit shall be filed, the sur- 
 rogate shall stay the granting of letters for thirty 
 days, unless the matter shall be sooner disposed 
 of. (S. L. 1837, chap. 460, § 22; 3 R. S., 5th ed., 
 154.) (See affidavit objections and order in ap- 
 pendix.) 
 
 [If the affidavit shows any intention to file objec- 
 tions against only one of several executors, the 
 surrogate will suspend action as to all. McGregor, 
 V. Bud, 24 N. Y., 166. 
 
 [If the objector swears that he is a creditor, the 
 surrogate will not try the issue, as to whether he is, 
 
OF GRANTING LETTERS TESTAMENTARY. 31 
 
 
 
 in fact, a creditor, but will try the objections. 
 Estate Horatio N. -Ferris, 1 Tucker, 15. 
 
 [As to rules of adjudication upon tbe objections, 
 see hereafter in regard to requiring executors to 
 give bonds after letters issued.] 
 
 And letters will be issued on the executor's 
 qualifying, or taking the oath of office and filing 
 thQ same with the surrogate. 
 
 This oath may be taken before the surrogate, 
 county judge, or a commissioner of deeds, or the 
 clerk appointed by the surrogate. In Kings county, 
 the- clerk or clerks of the surrogate are also autho- 
 rized to administer it. (See form, in Appendix.) 
 
 (3 K. S. 5th ed. 171 ; S. L., 1863, chap. 392, § 9.) 
 
 Any person named as an executor, may renounce 
 by an instrument in writing, attested by two wit- 
 nesses, and on the same being proved to the satis- 
 faction of the surrogate he will file and record it. 
 (See form in Appendix.) And if any person 
 named as an executor shall not appear to qualify 
 within thirty days after the will is proved, and 
 shall not have renounced, the surrogate may, on 
 application of any person interested, issue a sum- 
 mons to such executor to appear and qualify within 
 a Certain time, or he will be deemed to have re- 
 nounced the appointment. (See petitions and in 
 appendix.) (2 R. S., 70; 3 R. S., 5th ed., 155.) 
 But if all the persons named as executors renounce 
 
32 EXECUTOR'S AKD ADMINISTRATOR'S GUIDE. 
 
 « 
 
 or neglect to qualify after summons as above, or 
 are legally incompetent, then letters of adminis- 
 tration with the will annexed will be granted, as 
 if no executors had been named in the will — 1. 
 To the residuary legatees, or some one of them ; 
 2. To any principal or specific legatee ; 3. To the 
 widow or next of kin ; 4. To any creditor of the 
 testator — in the same manner and under the like 
 regulations and restrictions as letters of adminis- 
 tration in cases of intestacy ; which see hereafter. 
 (See petitions order etc., in appendix.) 
 
 [A guardian of an infant, who is not a residuary 
 or specific legatee, is not entitled to letters with the 
 will annexed in preference to the widow of the 
 testator. Gluett v. Mattice, 43 Barb. 417.] 
 
 An executor who does not renounce, or who is 
 not deemed to have renounced after summons, may 
 at any time appear and qualify, and letters will be 
 issued to him ; and in some cases it is advisable to 
 apply for such letters, either for the protection of 
 the estate, or when the executor previously acting 
 shall die or become incompetent. 
 
 [An executor who has renounced, may re- 
 tract his renunciations at any time before letters 
 are issued to others, or, afterwards, upon the de- 
 cease of those having letters, or after their revoca- 
 tion. Robertson v. Mc Goech, 1 1 Paige, 640 ; Casey v. 
 Gardiner, 4 Brad. 13.] 
 
 Letters testamentary upon a will of a testator 
 
OF GRANTING LETTERS TESTAMENTARY. 33 
 
 domiciled without the state, at the time of his 
 death, may also be issued by the surrogate of any 
 county in which there may be any property effects. 
 (See S. L., 1863, 694.) 
 
 If, after letters testamentary shall have been 
 granted to any person named as executor, complaint 
 shall be made to the surrogate of the county, by 
 any person interested in the estate, that the person 
 so appointed as executor, has become incompetent 
 by law to serve as such, or that 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 this state, 
 the surrogate shall proceed to inquire into such com- 
 plaint. (See petitions etc., in Appendix.) 
 
 [As to incompetency, see above, p. 12. Where 
 an executor has no property except an unliquidated 
 demand, and was about to remove from the state, 
 held, that he should be required to give security. 
 Wood V. Wood, 4 Paige, 299 ; Holmes v. Cock, 2 
 Barb. ch. 426. 
 
 An executor should not be required to give 
 security, merely because he does not own property 
 to the full value of the estate, and when there is no 
 ground for supposing that the trust fund is in dan- 
 ger. Mandeville v. Mandeville, 8 Paige 475. 
 
 The main point is, whether, the circumstances 
 being considered, it is doubtful whether the trust 
 
34 EXECUTOR'S AND ADMINISTEATOE'S GUIDE. 
 
 fund is safe in his hands, to be administered as 
 directed. Gottrell v. Brook, 1 Brad., 148.] 
 
 This complaint should, undoubtedly, be on oath, 
 stating the causes of complaint clearly and ex- 
 plicitly, and thereupon the surrogate will issue a 
 summons, to be personally served at least six days 
 before the return day, if the executor be in the 
 county, or, if he shall have absconded from the 
 county, it may be served by leaving it at his 
 place of residence. If, on the return day, the sum- 
 mons shall appear to have been duly served, and 
 on hearing the proofs and allegations of the par- 
 ties, it shall appear that the complaint is sustained, 
 the surrogate shall require the executor to give 
 a bond with sureties like those required of adminis- 
 trators, within not exceeding five days. 
 
 [The costs of the application, if granted, should, 
 as a general rule, be charged on the fund, that is, 
 the estate. Eolmes v. Cock, 2 Barb., ch. 426.] 
 
 If such person neglect to give a bond, or if it 
 appear, that he is legally incompetent, the surro- 
 gate shall, by order, supersede the letters testa- 
 mentary so issued to him, and his rights and 
 authority as executor, shall thereupon cease. If, 
 after such removal, there be no acting executor of 
 such will, the surrogate shall grant letters of ad- 
 ministration with the will annexed, in the manner 
 above set forth. 
 
OP GRANTING LETTERS TESTAMENTARY. 35 
 
 And in all cases, the administrators with the 
 will annexed shall observe and perform the will, 
 and their rights, powers and duties shall be the 
 same as if they had been named executors in the 
 will. (2 R. S., 72 ; 3 R. S., 5th., 157.) 
 
 But he cannot sell and dispose of real estate for 
 the purpose of division among legatees, or do any 
 act about the re!a,l estate, without further authority 
 from the Supreme Court. (GonJdin Y.Egerton, 21 
 "Wen. 430 ; affirmed on another ground, 25 Wen., 
 224; D(mimick Y. MMiobel, 4 Sand. Sup. Ct. R., 
 374 ; Boome v. Phillips, 27 N. Y., 357.) 
 
 [But if the administrator with the will annexed 
 assumes to act as trustee as to real estate, in place of 
 the executor appointed and who declined to act, those 
 interested might consider him as trustee instead as 
 a wrong doer, and have him removed for neglect of 
 the duties proper to the trustee. 2 Edw. ch., 32. 
 
 And it being doubtful whether the administrator 
 with the will annexed, was authorized to execute 
 a trust power given to the executor named and 
 who declined to act, the court appointed the ad- 
 ministrator trustee, and directed him to execute 
 the conveyance of the property, both as adminis- 
 trator and trustee. Gilchrist v. Bae., 9 Paige, 66. 
 
 Letters testamentary and of administration, 
 generally, are local in their character, and extend 
 only to assets and property within 'the state. Doo- 
 little V. Lewis, 7 Johns., ch., 45.] 
 
36 EXECUTOR'S AND ADMINISTRATOR'S GUIDE. 
 
 CHAPTER VIII. 
 
 Letters of Administration. 
 
 When a person dies, leaving no will, lie is said 
 to die intestate, and letters of administration are 
 granted on his estate. 
 
 Administrators, in their representative capacity, 
 have no charge over the real estate of their intestate 
 [Hillman v. St&phms, 16 N. Y., 278 ; Griffith v. 
 Beecher, 10 Barb. 432), and their authority is local, 
 extending only as to assets within the state. 
 (Doolittle, v. Lewis, 7 Johns., ch. 45.) 
 
 There are three forms of letters of administra- 
 tion : general letters upon the estate of an intes- 
 tate ; special letters of collection, upon the estate 
 of either an intestate or testator, in certain cases, 
 and letters of administration with the will annexed. 
 
 § 23. (2 K S., 73 ; 3 R. S., 5th ed., 158.) " The 
 surrogate of each county shall have sole and ex- 
 clusive power within the county for which he may 
 be appointed, 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 pre- 
 vious to his death, was an inhabitant of the county 
 
LETTERS OF ADMINISTRATION. 37 
 
 of such surrogate, in whatever place such death 
 may have happened. 
 
 2. Where an intestate, not being an inhabitant 
 of this state, shall die in the county of such sur- 
 rogate, leaving assets (that is, personal property or 
 evidences of debt) 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 surrogate, and in no other county. 
 
 4. Where an intestate, not being an inhabitant of 
 this state, should die out of the state, not leaying 
 assets therein, but assets of such intestate shall 
 thereafter, come into the county of such surrogate." 
 
 The person applying for general letters of ad- 
 ministration, must produce proof to the satisfaction 
 of the surrogate, that^the deceased left no will, of 
 the time, place, and manner of his death, and the 
 value of his personal estate. 
 
 [If it is alleged, in opposition to the application 
 for letters of administration, that there is a will, 
 and a will is traced last to the possession of the 
 deceased, there must be proof of a search among 
 his papers, and if it be not found, the presumption 
 will be that he revoked it by destroying it. Bulhley 
 V. Redmond, 2 Brad., 281. 
 
 The surrogate must examine the persons apply- 
 ing, and may also examine other persons and 
 compel their attendance.] 
 
38 EXECUTOR'S AND ADMINISTRATOR'S GUIDE. 
 
 Usually, however, this proof is all included in 
 the petition which is presented for letters by the 
 applicant. The petition must also state whether 
 the deceased left a widow, with her name, and the 
 names and places of residence of the next of kin, 
 or that these facts cannot, after diligent inquiry, be 
 ascertained, and what relation the petitioner has 
 to the estate. (See forms in Appendix.) 
 
 § 27. (2 R. S., 74 ; 3 R. S., 5th ed., 158; amended 
 chap. 782, Laws of 1867.) Administration, 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, qr 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 mother ; fifth, 
 to the brothers ; sixth, to the sisters ; seventh, to 
 the grand-children ; eighth, to any other of the next 
 of kin who would be entitled to share in the distri- 
 bution of the estate. If any of the persons so en- 
 titled be minors, administration shall be granted 
 to their guardians ; if none of the said relatives or 
 guardians will accept the same, then to the credit- 
 ors of the deceased, and the first creditors applying 
 will, if otherwise competent, be entitled to the 
 . preference. 
 
 [Where a person dies leaving a father and 
 brothers, it is error to grant letters to a creditor 
 
LETTERS OF ADMINISTRATION. 39 
 
 upon the renunciation of the father only. Laihnyp 
 V. Smith, 35 Barb., 64; and Id., 24 N. Y., 417.] 
 
 If no creditor apply, then to any other person 
 or persons legally competent ; but in the city of 
 New York the public administrator shall have pre- 
 ference, after the next of kin, over creditors and all 
 other persons ; and in the other counties, the county 
 treasurer shall have preference, next after credit- 
 ors, over all other persons. And in the case of a 
 married woman dying intestate, her husband shall 
 be entitled to administration in , preference to all 
 persons. 
 
 " This section shall not be construed to authorize 
 the granting of letters to any relative not entitled 
 to succeed to the personal estate of the deceased 
 as his next of kin, at the time of his decease." 
 
 Where several persons, of the same degree of 
 kindred, apply for letters, males are preferred to 
 females; relative of the whole blood, to those of 
 the half blood ; unmarried women, to such as are 
 married ; and where several persons, in the same 
 degree and equally entitled, apply, the surrogate 
 may appoint such as in his discretion he thinks 
 most fit. 
 
 §29. (2 R. S., 75; 3 R. S., 5th ed., 159.) "A 
 husband, as such, if otherwise competent, according 
 to law, shall be solely entitled to administration on 
 the estate of his wife, and shall give bond as other 
 
40 EXECUTOR'S AND ADMINISTRATOR'S GUIDE. 
 
 persons, but shall be liable, as administrator for the 
 debts of his wife, only to the extent of the assets 
 received by him. 
 
 In the case of persons, not inhabitants of this 
 state, dying and leaving assets in this state, admin- 
 istration shall be granted ; first, to relatives apply- 
 ing, and in case such do not apply, then, in the 
 city of New York, second, to the public adminis- 
 trator; in all other counties, second, to some 
 person who may have been legally appointed 
 administrator in any other state, who, on produc- 
 ing his letters granted in such other state, shall be 
 entitled in preference to creditors, or to some person 
 appointed by the foreign administrator to receive 
 them. But if none of the persons above specified 
 apply, then creditors or other proper persons may 
 do so, and after the proper citation, may receive 
 letters. 
 
 And any person entitled to letters, by filing his 
 or her consent in writing, may have a competent 
 person, not otherwise entitled, joined in the ad- 
 ministration (2 E. S., 75 ; 3 E. S., 5th ed., 160) ; 
 as, for example, a widow may have hel" father, or 
 brother, or another person, joined with her; a son 
 or a daughter may have any competent person 
 joined w;ith him or her. The consent required 
 may be embodied in the petition. 
 
 [When this consent shall have been acted on, 
 
LETTERS OF ADMINISTRATION. 41 
 
 and letters issued, the consent cannot be revoked. 
 Estate of Elijah -D Williams, 1 Tucker, 8.] 
 
 Where a married woman is entitled to letters 
 the same may be granted to her as if she were 
 unmarried. (Chap. 782, Laws of 1867.) 
 
 And if any person who would otherwise be 
 entitled, be a minor, such letters shall be granted 
 to his guardian, the same as they would be to the 
 person so entitled if of full age. (2 R. S., 75 ; 3 R. 
 S., 5th ed., 160.) 
 
 § 32. (Page 75, 3 R. S., 5th ed.,159.) " No letters 
 of administration shall be granted to any person 
 convicted of an infamous crime, nor to any one 
 incapable, by law, of making a contract, nor to a 
 person not a citizen of the United States (unless 
 such person reside within this state) nor to any 
 one who is under twenty-one years of age, nor to 
 any one who shall be judged incompetent, by the 
 surrogate, to execute, the duties of such trust, by 
 reason of drunkenness, improvidence, or want of 
 understanding. * * 
 
 [The surrogate cannot exclude a person other- 
 wise entitled to letters, except for the causes speci- 
 fied in the statute. Coope v. Lowerre, 1 Barb., 
 ch. 45. 
 
 As to the degree of drunkenness incapacitating 
 the applicant, see Elmer v. Kechele, 1 Red field, 
 472.] 
 
42 EXECUTOR'S AND ADMINISTRATOR'S GUIDE. 
 
 § 5. (L. S, 1867, thap. 782.) "Any surrogate 
 may, in his discretion, refuse the application for 
 letters testamentary, or -letters of administration 
 of any person unable to read and write the English 
 language." 
 
 But before the issuing of letters, the applicant 
 must produce and file, with the surrogate, a renun- 
 ciation, executed in the manner heretofore pre- 
 scribed in speaking of renunciations by executors, 
 (see form. Appendix), of all persons having a 
 prior right to administration; or the surrogate 
 must issue a citation to such persons, requiring 
 them to show cause why administration should 
 not be granted to such applicant. . 
 
 [One who has renounced may revoke his renun- 
 ciation at any time before letters are actually 
 granted. Casey v. Qardiner, 4 Brad., 13.] 
 
 The citation must be served on such as reside in 
 the county, personally, or by leaving a copy at 
 their residences, at least six days before the return- 
 day thereof; on such as reside in any other county 
 in this state in the same manner, at least forty 
 days before the return day ; and on such as reside 
 out of the state, or whose residences cannot be 
 ascertained, personally, at least forty days before 
 its return, or it may be published, as against those 
 out of the state, or whose residences cannot be 
 ascertained, once a week for six weeks, in the 
 state paper. 
 
LETTERS OF ADMINISTRATION. 43 
 
 In all cases of publication, a copy must be 
 mailed to those whose residences can be ascertained, 
 at least thirty days before the return day of the 
 citation. 
 
 A like citation must be served at least twenty 
 days before its return, on the attorney general of 
 the state, in all cases where it does not appear in 
 the application, or other written proof, to the sur- 
 rogate, that the intestate left kindred entitled to 
 his estate, specifying names and residences, as far 
 as can be ascertained. (See petitions, order etc., 
 in Appendix.) 
 
 On the application, therefore, if the person 
 applying has the first right, or is one of several 
 equally entitled as a class, or on filing the renun- 
 ciation of persons having the prior right, or on the 
 return day of the citation to such persons, if they or 
 some of them do not take letters or show cause why 
 ' the applicant should not have them, letters will issue 
 to the applicant, on his taking an oath or afiirma- 
 tion, before any ofiicer authorized to administer 
 oaths, and filing the same with the bond required. 
 (See oath, in Appendix.) 
 
 The bond is executed to the people of the state, ' 
 with two or more sureties, to be approved by the 
 surrogate, and in a penalty of not less than twice 
 the value of the personal estate of which the de- 
 ceased died possessed. 
 
44 BXECUTOE'S AND ADMINISTRATOK'S GUIDE. 
 
 The surrogate may examine such persons as he 
 may think proper, as to the value of the personal 
 estate, and he may also require the sureties to jus- 
 tify. The execution of the bond must, in all cases, 
 be acknowledged or proved before the surrogate or 
 some person authorized to take acknowledgment 
 of deeds. (See form. Appendix.) 
 
 Special Letters of Administration may issue 
 in the discretion of the surrogate, when, in case of 
 a contest relative to the proof of a will, or relative 
 to granting letters testamentary or administration 
 with the will annexed, or of administration in 
 cases of intestacy ; or where by reason of absence 
 from this state of any executor named in the will 
 or for any other causes, a delay is necessarily pro- 
 duced in granting such letters. Before taking 
 such letters, |the person appointed collector shall 
 take the oath of office, and shall give a bond with 
 sureties the same as in case of general administra-- 
 tion. (2 R. S., 76 ; 3 R. S., 5th ed., 160. See 
 forms in Appendix.) 
 
 His duties, when appointed, extend only to the 
 collection and preservation of the estate (personal) 
 of the deceased, and he has 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. 
 For these purposes, he may maintain actions as 
 administrator, and, under the directions of the 
 
LETTERS OP ADMINISTRATION. 45 
 
 surrogate, he may sell such of the goods of the de- 
 ceased as shall be deemed necessary for the pre- 
 servation and benefit of the estate, after the same 
 shall have been appraised. 
 
 The condition of the bond of such special ad- 
 ministrator (who is also called a collector), is that 
 he will make a true and perfect inventory of such 
 of the assets of the deceased as shall come into his 
 possession or knowledge, and return the same, 
 within three months, to the office of the surrogate 
 granting the letters"; that he will faithfully and 
 truly account for all property, money and things 
 in action, received by him as such collector, when- 
 ever required by the said surrogate, or any other 
 court of competent authority, and will faithfully 
 deliver up the same to the person or persons who 
 shall be appointed executors or administrators of 
 the deceased, or to such other person as shall be 
 authorized by the surrogate to receive the same. 
 
 [It has been held, that the sureties of a special 
 administrator, are liable for moneys received by 
 him before his appointment. Oottsherger v. Taylor, 
 19 N. Y., 150.] 
 
 The condition of the bond expresses fully his 
 liability, and the delivery and account may be 
 enforced by an order of the surrogate and by an 
 attachment to be issued by him, as in other cases 
 of administration. 
 
46 EXECUTOR'S AND ADMINISTRATOR'S GUIDE. 
 
 By chapter 71 of Laws of 1864, it is provided, 
 that every special administrator shall, within ten 
 days after receipt of moneys as such, deposit them 
 with some person who shall give adequate secu- 
 rity by a bond in a penalty to be fixed by the 
 surrogate with two sufficient sureties to be approved 
 by him, or with such banking associations as the 
 surrogate shall direct. In the county of New 
 York, he shall deposit such moneys, in an incor- 
 porated trust company. These moneys shall not 
 be withdrawn, except upon the order of the surro- 
 gate to be presented to the depositary, and no 
 order shall be made for such withdrawal, except 
 upon notice to the attorneys of all parties who 
 have appeared in the estate. 
 
 The special administrator shall be appointed 
 only after notice of two days, in writing, shall have 
 been given to the attorneys of the parties who 
 have appeared in the case of the names of the per- 
 sons who are proposed as sureties of the special 
 administrator, and the time and place of their jus- 
 tifications. On the day fixed the sureties may be 
 fully examined, and if they shall not appear to be 
 worth, collectively, double the penalty of the bond, 
 no letters shall issue. 
 
 No sale or transfer of personal property shall be 
 made by the special administrator, except on the 
 order of the surrogate, made on notice to all par- 
 
LETTERS OP ADMINISTRATION. 47 
 
 ties who have appeared by attorney. The time 
 for the notice shall be ten days, and shall be served 
 on the attorneys in the manner provided by law, 
 for service of notice of motions in civil actions. 
 The time, when • service is by mail, will require to 
 be twenty days. 
 
 The notice of the apphcation for a special ad- 
 ministrator shall be given in the same manner, at 
 least ten days before the application is made. 
 Such administrator shall account for all interest 
 received by him in the same manner as for prin- 
 cipal. 
 
48 EXECUTOR'S AND ADMINISTRATOR'S GUIDE. 
 
 CHAPTER IX. 
 
 General Provisions in Regard to Letters Testa- 
 mentary AND OF Administration. For what rea- 
 sons Letters are revoked, etc. 
 
 §. 44. (2 R. S., 78 ; 3 R. S., 5th ed., 162.) " In 
 case any one of several executors or administrators 
 to whom letters testamentary 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 that letters testamentary or of ad- 
 ministration shall be revoked or annulled according 
 t© law, with respect to any one executor or admin- 
 istrator, the remaining executors or administrators 
 shall proceed and complete the execution of the 
 will or the administration, according to law." 
 
 If all such executors or administrators shall die, 
 or become incapable, as aforesaid, or the power and 
 authority of all of them shall be revoked according 
 to law, letters of administration or letters of admin- 
 istration with the will annexed, as the case may 
 require, shall issue, as in the first instance. 
 
 § 46. "If, after granting any letters of adminis- 
 tration on the ground of intestacy, any will shall be 
 subsequently proved, and letters testamentary, or of 
 
IN REGARD TO LETTERS TESTAMENTARY. 49 
 
 administration with the will annexed, be thereupon 
 issued, a revocation of such first letters of adminis- 
 tration shall be made by the surrogate ; and until 
 the same be made and served on such first admin- 
 istrator, his acts, done in good faith, shall be 
 valid * * *." 
 
 § 25. (S. L. 1837, chap. 496 ; S. L. 1862, chap. 
 229; 3R. S., 5thed.,163.) When any person inte- 
 rested in the estate of the deceased shall discover 
 that the sureties of any executor or 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 (as when|the estate 
 is discovered to be larger than at first supposed, 
 § 35), such person may make application to the sur- 
 rogate who granted the letters testamentary or of 
 administration, for relief. 
 
 § 26. If the surrogate 'shall receive satisfactory 
 evidence that the matter requires investigation, 
 he shall issue a citation to such executor or ad- 
 ministrator, requiring him to appear before such 
 surrogate at a time and place to be therein specified, 
 to show cause why he should not give further 
 sureties or be superseded in the administra,tion ; 
 which citation shall be served personally on the 
 executor or administrator, at least six days before 
 the return day thereof; or if he shall have ab- 
 4 
 
50 EXECUTOR'S AND ADMINISTEATOE'S GUIDE. 
 
 sconded, or can not be found, it may be served by 
 leaving a copy at his last place of residence. 
 
 [The executor, administrator, or guardian, cited 
 to show cause why he should not be superseded, 
 may also be enjoined by the surrogate from fur- 
 ther action until the matter in controversy shall 
 have been settled. S. L. 1837, 535.] 
 
 If on the return day on hearing the proofs and 
 allegations of the parties, the surrogate shall decide 
 that the sureties are for any cause insufficient, he 
 will order the executor or administrator to give 
 further sureties within five days, and if he neglect 
 to comply with the order his letters will be revoked. 
 (S. L. 1837, chap. 460 ; S. L. 1862, chap. 229 ; 
 8 R. S., 5th ed., 163.) 
 
 [Where the petitioner swears to an interest, the 
 surrogate will not try an issue upon that question. 
 Est. Wm. K Merchant, 1 Tucker, 17.] 
 
 " When either or all of the sureties of any exe- 
 cutor or administrator shall desire to be released 
 from responsibility on account of the future acts or 
 defaults of such administrator, they may make 
 application, to the surrogate who granted letters of 
 administration for relief," who wiU thereupon 
 (§ 30), issue a Citation to the executor or adminis- 
 trator to appear before him and give new sureties, 
 in the usual form, within not less than six days. 
 
IN REGARD TO LETTERS TESTAMENTARY. 51 
 
 § 31. "If such executor or administrator shall 
 give new sureties to the satisfaction of the surro- 
 gate, the surrogate may thereupon make an order 
 that the surety or sureties who applied for relief in 
 the premises, shall not be liable on their bond, for 
 any subsequent act, default or misconduct of such 
 executor or administrator." 
 
 If such executor or administrator neglect to give 
 new sureties, his letters will be revoked (§ 32), and 
 any remaining executor or administrator, whose 
 letters are not revoked, will have full power to do 
 any act necessary in the administration of the es- 
 tate (§ 33). 
 
 § 34. " Whenever it shall appear to the surro- 
 gate, that letters of administration, or letters of 
 guardianship have been granted on, or by reason of 
 false representations, made by the person to whom 
 the same were granted ; and also whenever it shall 
 appear that an administrator or guardian has be- 
 come incompetent by law to act as suchj by reason 
 of drunkenness, improvidence or want of under- 
 standing, the surrogate shall have power to revoke 
 such letters. 
 
 [The revocation may be made, when issued on 
 false representations, even when they were made 
 not fraudulently, but by mistake. Paley v. Samds, 
 3 Edw., ch. 325 ; Proctor v. Wanmaker, 1 Barb., 
 ch. 302 ; see also Kerr v. Kerr, 41 N. Y., 272.] 
 
52 EXECUTOR'S AND ADMINISTRATOR'S GUIDE. 
 
 Whenever an absent or non-resident executor or 
 administrator shall have been duly served with a 
 citation to account, and shall, without reasonable 
 cause, neglect or refuse to appear in pursuance 
 thereof, the surrogate may, in his discretion, revoke 
 the letters to such executor or administrator. (S. 
 L. 1846, chap. 288.) 
 
 The surrogate of the county of New York, may 
 revoke the letters of an executor, administrator or 
 collector, or of a testamentary trustee, or guardian, 
 upon their own apphcation for good cause shown, 
 and on notice to the persons interested ; and may 
 make such terms and conditions for the security of 
 the estate as in his judgment are required. After 
 such revocation the surrogate may issue letters of 
 administration, letters with the will annexed, or of 
 collection, or appoint a successor to such trustee 
 or guardian. (S. L. 1870, dhap. 359, § 3.) 
 
 § 47. (2 R. S., 79 ; 3 R. S., 5th ed., 165.) " All 
 sales made in good faith, and all lawful acts done, 
 either by administrators before notice of a will, or by 
 executors or administrators who may be removed or 
 superseded, or who may become incapable, shall re- 
 main valid and shall not be impeached, on any will 
 afterwards appearing, or by any subsequent revoca- 
 tion or superseding of the authority of such execu- 
 tors or administrators." 
 
DUTIES IN REGARD TO THE INVENTORY. 53 
 
 CHAPTER X. 
 
 Of the Ditties of Executors and Administrators 
 IN Regard to the Inventory ; and the Rights 
 of the Widow and Minor Children. 
 
 The duty of executors and administrators to take 
 an inventory, although too often neglected, is highly 
 important, and imperatively directed by statute. 
 
 There are very few cases in which it is consistent 
 with the most common prudence, to neglect taking 
 an inventory. It may not be necessary in all cases 
 to^Ze it. (2 Johns. Ch. R., 62.) < 
 
 The surrogate granting letters, shall, upon the 
 application of any executor or administrator, ap- 
 point two disinterested appraisers, as often as occa- 
 sion may require, to estimate" and appraise the pro- 
 perty of a deceased person. (2 R. S., 82 ; 3 R. S., 
 5th ed., 168. See order in Appendix.) The ap- 
 pointment is made by the surrogate, and he usually 
 consults the desires of the parties as to whom to 
 appoint. The duty of the appraisers being to fix a 
 value to charge the executor or administrator, as 
 between him and the next of kin, legatees, &c., it 
 is a very proper rule to appoint only those who 
 
54 EXECUTOR'S AND ADMINISTRATOR'S GUIDE. 
 
 could act as jurors in a trial at law in which any 
 of those parties may be inteTested. 
 
 Two or more inventories may be made if neces- 
 sary. §3. (2R.S., 82; 3 R. S., 5th ed., 169.) "A 
 notice of such appraisement shall be served five days 
 previous thereto, on the legatees and next of kin, re- 
 siding in the county where such property shall be, 
 and it shall also be posted, for the same time, in 
 three of the most public places of the town * *." 
 (See form notices, Appendix.) And it is very 
 proper, although not required by law, to attach 
 proof of such service and posting to the inventory 
 filed with the surrogate. 
 
 The appraisers shall, before proceeding to execute 
 their duties, take and subscribe an oath (see form 
 inventory, Appendix), to truly, honestly and im- 
 partially appraise the personal property which shall 
 be exhibited to them. 
 
 After the first meeting, they may adjourn from 
 time to time, as may be necessary. 
 
 It being the duty of the executor or administra- 
 tor to exhibit the property to the appraisers, he may 
 well spend some time in arranging it in classes be- 
 fore meeting, to facilitate their labor, as well as to 
 learn the extent and details of the property for him- 
 self Thus, he may arrange the notes in one class, 
 bonds and mortgages in another, farming imple- 
 ments, stock on the farm, furniture, &c., in other 
 classes. 
 
DUTIES IN REGARD TO THE INVENTORY. 55 
 
 If the executor or administrator has reason to 
 suppose that any person has goods of the deceased 
 and proposes to -detain them, he may make an ap- 
 plication, by petition under oath, stating the facts, 
 to the surrogate, who will issue a subpoena to the 
 person in whose hands the goods are supposed to 
 be, to appear and be examined before him. (S. L., 
 1870, chap, 394.) 
 
 § 5. " The appraisers shall, 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, and shall set down each arti- 
 cle separately with the value thereof, in dollars 
 and cents distinctly, in figures, opposite to the 
 articles respectively. (See form inventory in Ap- 
 pendix.) 
 
 § 6. The following property shall, be deemed 
 assets, and shall go to the executors or administra- 
 tors, to be applied and distributed as part of the 
 personal estate of their testator or intestate, 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 de- 
 ceased 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. 
 
56 EXECUTOR'S AND ADMINISTRATOR'S GUIDE. 
 
 3. The interest in lands devised to an executor 
 for a term of years, for tlie 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. 
 
 [Hop poles used on the land are part of the 
 realty, 11 N. Y., 123. 
 
 Cotton machinery is personal property, 10 Barb., 
 157. 
 
 Looms in a woolen mill are personal estate, 18 
 N. Y., 28. 
 
 Water wheels, mill-stones and bol|ing apparatus, 
 are part of the realty, 10 Paige, 158. 
 
 Manure, not the produce of lands, e. g., the 
 accumulations of a livery stable, is personal pro- 
 perty, 15 Wend., 169; 2 Hill, 142. E converso 
 manure accumulated on a farm from the produce 
 thereof, is a part of the realty.] 
 
 5. The crops growing on the land of the de- 
 ceased at the time of his death (that is, crops 
 which are annually produced by cultivation, and 
 not crops the spontaneous products of the soil, as 
 grass and fruits). 
 
 6. Every kind of produce raised annually by 
 labor and cultivation, excepting grass growing and 
 fruits not gathered. 
 
 7. Rent reserved to the deceased, which had 
 accrued at the time of his death. 
 
DUTIES IN REGAED TO THE INVENTORY. 57 
 
 [Rents accrued and collected after the decease 
 of the testator, or intestate are not assets. Kohler 
 V. Knapp, 1 Brad., 241. 
 
 "Where a lessor dies before the rent becomes due, 
 the rent goes to the heirs as incident to the rever- 
 sion, and the executor cannot maintain an action 
 to recover it. Fay v- Bbdloran, 35 Barb., 295. 
 
 Where a lease ended in April, and the tenant 
 had the privilege to gather winter crops, and to 
 pay the rent in wheat in August, and the land- 
 lord died in June, held thatthe rent due in August 
 went to the executors. Wadsworfh v. Alcott, 6 
 T., 64. Where a tenant for life having demised 
 premises, dies on or after the day the rent becomes 
 due, his executors or administrators may recover 
 the rent. But if he dies hefore the rent becomes 
 due, the rent shall be apportioned between the 
 executors or administrators, and the reversioner. 
 1 R. S., 747, § 22.] 
 
 8. Debts secured by mortgage, bonds, notes, or 
 bills, accounts, money and bank bills or other cir- 
 culating medium, things in action and stock in any 
 company, whether incorporated or not. 
 
 9 . Goods, wares, merchandise, utensils, furniture, 
 cattle, provisions and every other species of per- 
 sonal property and effects, not hereinafter excepted. 
 
 [Assets of a partnership in the hands of a sur- 
 viving partner, are not assets to be inventoried by 
 
58 EXECUTOR'S AND ADMINISTRATOR'S GUIDE. 
 
 the representative of the deceased partner. He is 
 only entitled to a balance on an accounting, and 
 it is sufficient, as to the partnership interest in the 
 inventory, to state it as an interest in an unascer- 
 tained balance. Thompson v. Thompson, 1, Brad. 
 24.J 
 
 § 7. Things annexed to the freehold, or to any 
 building shall not go to the executor, but shall de- 
 scend with the freehold, to the heirs or devisees, ex- 
 cept such fixtures as are mentioned in the fourth 
 subdivision of the last section. 
 
 § 8. The right of an heir to any property not enu- 
 merated in the preceding sixth section, which by 
 the common law would descend to him, shall not 
 be impaired by the general terms of that section. 
 
 § 9. (Page 83, as amended by chap. 782 of Laws 
 of 1867.) When a man having a family shall die, 
 leaving a widow, or a minor child or children, or 
 a widow shall die leaving a minor child or children, 
 the following articles shall not be deemed assets 
 (for the purpose of distribution, the payment of 
 debts or legacies), but shall be included and stated 
 in the inventory of the estate, without being ap- 
 praised. 
 
 1. All the 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 
 
DUTIES IN REGARD TO THE INVENTORY. 59 
 
 person; and books not exceeding in value fifty 
 dollars, which were kept and used as part of the 
 family hbrary, before the decease of such person. 
 
 3. All sheep to the number of ten, with their 
 fleeces, 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 bedding, necessary cooking utensils, the cloth- 
 ing of the family, the clothes of a widow and her 
 ornaments proper for her station; one table, six 
 chairs, six knives and forks, six plates, six tea cups 
 and saucers, one sugar dish, one milk pot, one tea 
 pot and six spoons. 
 
 By § 13 of chap. 782, of laws of 1867, it is pro- 
 vided that all articles and property set apart, in 
 accordance with law for the benefit of a widow and 
 a miaor or minors, shall be and remain the sole 
 personal property of such widow, after such minor 
 or minors shall have arrived at age. 
 
 §2. (S. L., 1842, chap. 157; 3 E. S., 5th ed., 
 170, as amended by chap. 782, laws of 1867.) 
 
 " Where a man having a family shall die, leav- 
 ing a widow or minor child or children, or a widow 
 shall die leaving a minor child or children, there 
 shall be inventoried by the appraisers and set 
 apart for the use of the widow, or for the use of 
 such widow and child or children, or for the use of 
 
60 EXECUTOR'S AND ADMINISTRATOR'S GUIDE. 
 
 such cMld or children, in the manner now pre- 
 scribed by the ninth section, (above quoted) ne- 
 cessary household furniture, provisions or other 
 personal property, in the discretion of said ap- 
 praisers, to the value of not exceeding one hundred 
 and fifty dollars, in addition to the personal pro- 
 perty now exempt from appraisal by said section. 
 
 [See Sheldon v. Bliss, 8 N. Y., 31 ; Clayton v. 
 Warden, 2 Brad. 1.] 
 
 The appraisers shall use their discretion in this 
 case, as to what articles they shall set apart, not 
 whether they shall set apart any or not; and if 
 they neglect to set apart articles at all; or set 
 apart less than one hundred and fifty dollars in 
 value, the surrogate will, on application of any 
 party aggrieved, direct them to do so, or if neces- 
 sary, appoint other appraisers to perform the duty, 
 or on the final settlement, he will order that sum 
 or so much as the appraisers neglect to set apart, 
 to be paid to the widow or minors, they having a 
 right to the provision as against next of kin, 
 legatees or creditors. 
 
 § H. (2 R. S., 84; 3 R. S., 5th ed., 170.) "The 
 inventory shall contain a particular statement of all 
 bonds, mortgages, notes or other securities for the 
 payment of money, belonging to the deceased, 
 which are known to such executor or administra- 
 tor, specifying the names of the debtor in each 
 
DUTIES IN REQAKD TO THE INVENTOEY. 61 
 
 security, the date, the sum originally payable, the 
 indorsements thereon, if any, with their dates, and 
 the sum which in the judgment of the appraisers 
 may be collectable on each security." 
 
 It should also class the claims inventoried as 
 good, doubtful or bad, as they estimate them. 
 
 § 12. " The inventory shall also contain an 
 account of all moneys, whether in specie or bank 
 bills, or other circulating medium, belonging to 
 the deceased, which shall have come into the hands 
 of the executor or administrator; and if none 
 shall have come to his hands, the fact shall be so 
 stated in such inventory." 
 
 It may oftentimes occur, that before the appraisal, 
 the executor or administrator may have paid out 
 some of the moneys which came into his hands, for 
 funeral expenses, surrogate's fees, or other neces- 
 sary charges, but he should state in the inventory 
 the amount which came originally into his »pos- 
 session, and charge in his account what he may 
 have paid out. 
 
 Claims of the deceased against the executor or 
 administrator, must be inventoried as other claims 
 and are deemed to be collected by him, and as 
 money in his hands from the time of the inventory. 
 {Deck&ry. Miller, 2 Paige 149.) 
 
 Where by the will, a debt or demand of the tes- 
 tator against any executor named, or against any 
 
62 EXECUTOB'S AND ADMINISTRATOR'S GUIDE. 
 
 other person, is discharged or bequeathed, the dis- 
 charge or bequest shall not be valid as against cre- 
 ditors of the deceased, but shall be construed only 
 as a specific bequest of such debt or demand, and 
 the amount thereof shall be included id the inven- 
 tory of the credits and effects of the deceased, a-nd 
 shall, if necessary, be applied in the payment of 
 his debts ; and if not necessary for that purpose, 
 shall be paid in the same manner and proportion 
 as other specific legacies. (2 E. S., 84.) This is 
 a statutory application of the principle, that no 
 gift is valid, as against creditors. 
 
 Upon the completion of the inventory, dupli- 
 cates shall be made and signed by the appraisers ; 
 one of which shall be retained by the executor or 
 administrator, and the other shall be returned to 
 the surrogate within three months from the date 
 of the letters, or in such further time, not exceed- 
 ing,four months as the surrogate shall for reasona- 
 ble cause allow. 
 
 On the return of the inventory, the executor or 
 administrator shall take and subscribe an oath 
 prescribed by law, which shall be indorsed upon, 
 or annexed to the inventory (see form. Appen- 
 dix), and which may be administered by any offi- 
 cer competent to adniinister an, oath. 
 
 In addition to the provisions in favor of the 
 widow and minor children from the personal estate 
 
DUTIES IN REGABD TO THE INVENTORY. 63 
 
 of her husband, it is provided by § 17 (1 R. S., 
 742; 3 E. S., 5th ed., 83), that "she may tarry 
 in the chief house of her husband forty days after 
 his death, whether her dower be sooner assigned or 
 not, without being liable to any rent for the same, 
 and in the meantime she shall have her reasonable 
 sustenance out of the estate of her husband." 
 This sustenance is to be provided out of the per- 
 sonal property of the husband, and through the 
 executor or administrator, if one be appointed 
 prior to the expiration of the forty days, and is to 
 be given, according to the circumstances and sta- 
 tion in life of the family, to the widow, and neces- 
 sarily, to the children dependent on her ; for it is 
 impossible to separate the widow from her infant 
 children. (But see Johnson v. Corhett, 11 Paige, 
 .265.) 
 
 In providing this sustenance, the executor or 
 administrator must exercise judgment and discre- 
 tion in the same manner as in paying funeral 
 expenses. Thus, if the estate be abundant to pay 
 all debts without doubt, items of mourning cloth- 
 ing for the widow and family may be included in 
 the charges for sustenance ; while if the estate be 
 involved, and the question should arise as against 
 creditors, bare necessaries only could be allowed. 
 
64 EXECUTOR'S AND ADMINISTEATOR'S GUIDE. 
 
 CHAPTER XI. 
 
 Return of Inyentort ; How Compelled ; and 
 Effect of not Returning it. 
 
 If the inventory shall not be returned and filed 
 in the ofl&ce of the surrogate within three months 
 from the issuing of the letters, or within such fur- 
 ther time, not exceeding four months, as the sur- 
 rogate shall, for reasonable cause, allow, on appli- 
 cation of a party interestedas legatee, next of kin, 
 or creditor, the surrogate will issue a summons to 
 the executor or administrator, requiring him, 
 usually in from six to ten days, to appear before 
 him and return an inventory, according to law ; 
 or show cause why an attachment should not issue 
 against him. The surrogate may issue such a 
 summons without an application. (2 R. S., 85 ; 
 3 R. S., 5th ed., 172.) (See petition, order, etc., 
 in Appendix). 
 
 If, after personal service of such summons, such 
 executor or administrator shall not, by the day 
 appointed, return such inventory on oath, or obtain 
 further time to do so, the surrogate shall issue an 
 attachment against him, and commit him to the 
 common jfiil of the county, there to remain until 
 
RETURN OF IXVENTORT. 65 
 
 lie shall return such inventory. (See form, Ap- 
 pendix.) 
 
 If the summons cannot be served personally by 
 reason of the executor or administrator absconding 
 or concealing himself, or, if after being committed 
 to prison, such executor or administrator shall 
 neglect for thirty days to make and return such 
 inventory, the surrogate may revoke the letters 
 before granted to such executor or administrator. 
 (See order for revocation, etc., in Appendix.) 
 
 [The costs of the proceedings may, in the dis- 
 cretion of the surrogate, be charged against the 
 executor or administrator, personally. S. L., 1867, 
 chap. 782.] And thereupon the surrogate shall 
 grant letters of administration of the goods, chattels 
 and effects of the deceased to the persons entitled 
 thereto (other than such executor or administrator), 
 in the same manner as original letters of adminis- 
 tration or letters testamentary. Such letters shall 
 supersede all former letters and shall deprive the 
 formerexecutor or administrator of all power, autho- 
 rity and control over the personal estate of the de- 
 ceased; and shall entitle the p'erson appointed by 
 such letters to take, demand and receive' the goods 
 and effects of the deceased, wherever the same may 
 be found. The bond given by the former executor 
 or administrator may be prosecuted, under the di- 
 rection of the surrogate, by the new executor or 
 
66 EXECUTOR'S AND ADMINISTBATOB'S GUIDE. 
 
 administrator, to the full extent of any injury 
 sustained by the estate of the deceased, by the 
 acts or omissions of such executor or administrator, 
 and to the full value of all the property of the 
 deceased received and not duly administered by 
 such executor or administrator. 
 
 The executor or administrator, imprisoned in 
 these proceedings, will be discharged on delivering 
 on oath, all the property in his hands to his suc- 
 cessor. 
 
 Any one or more of the executors or adminis- 
 trators, named in the letters, on the neglect of the 
 others, may return an inventory, and those so 
 neglecting shall not thereafter interfere with the 
 administration, or have any power over the per- 
 sonal estate of the deceased ; but the executor or 
 administrator, so returning an inventory, shall 
 have the whole administration until the delinquent 
 shall return and verify an inventory according to 
 law. 
 
 Whenever personal property, not mentioned in 
 any inventory that shall have been made, after- 
 ward come into the "possession or knowledge of an 
 executor or administrator, he shall cause the same 
 to be appraised, in the same manner as before 
 directed, and shall file the new inventory within 
 two months after discovery of the property (2 E. 
 S., 86 ; 3 K. S., 5th ed., 173). The making and 
 
KETURN OF INVENTORY. 67 
 
 return of this inventory, may be enforced in tlie 
 same manner as in case of the first one. 
 
 The necessity of taking an inventory, becomes 
 obvious from the following advantages accruing to 
 the executor or administrator : 
 
 The inventory fixes the pfima facie value of the 
 estate and the items composing it, and parties con- 
 testing on final settlement of the accounts, have 
 the burden of proof, in attempting to surcharge it, 
 as to the value of items included therein, or items 
 omitted. Where no inventory is made, however, 
 the burden of proof i§ upon the executor or admin- 
 istrator, to show, if demanded, that the whole estate 
 is accounted for, or if the value of an item is dis- 
 puted, he must show that he accounts for its full 
 value ; and all items must be accounted for at their 
 apparent value, or he must show that they • are 
 worthless or bad. As for instance, a book account 
 must be accounted for as it stands, unless the exe- 
 cutor or administrator shows that he has been 
 unable to collect it. But if the inventory shows 
 that certain demands are either bad or doubtful, 
 the party contesting must show that they are good, 
 and bring it to the knowledgS of the executor or. 
 administrator. The subject is treated of further 
 in the chapter on final settlement and accounting, 
 which see. 
 
68 BXECUTOE'S AND ADMINISTEATOE'S QITIDE. 
 
 CHAPTER XII. 
 
 Of the Collection of the Estate ; Compeomising 
 Debts due the Estate, and Adveetising for 
 Claims. 
 
 Several co-executors or co-admiaistrators are in 
 law, but one person and the act of one in refer- 
 ence to the sale, delivery, release or gift of the 
 decedent's goods, are deemed the act of all ( Gardner 
 V. Miller, 19 Johns., 188). One, without the 
 concurrence of his co-executors, or administrators, 
 may release a portion of mortgaged premises from 
 the lien, or give a satisfaction piece [Stuyvesant v. 
 Hall, 2 Barb., ch. 151), and either executor or 
 administrator, as against his associates, may retain 
 possession of the assets. [Burt v. Bwrt, 41 N. Y., 
 46.) 
 
 They should keep the estate funds separate from 
 other funds, if they mingle them with their own, 
 they are liable for losses ; {Kellett v. Bathbone, 4 
 Paige, 102) ; and they may be required by the sur- 
 rogate to deposit %he funds of the estate with a 
 savings bank, or trust company, so as to be earning 
 interest, while the estate is in process of settle- 
 ment. {Lockhart v. Public Administrator, 4 Brad., 
 21.) 
 
OF THE COLLECTION OF THE ESTATE. 69 
 
 Letters testamentary, or of administration are 
 local in their character, and the authority given 
 by them is coextensive only with the limits of the 
 state where issued (2 Kent Com., 430, note) . But 
 an executor who has obtaiiied probate and letters 
 in another state, can, (without action), dispose of 
 his testator's personal property in this state, with- 
 out taking out ancillary letters here. For the 
 title of an executor arises from the will, and not 
 the probate, or letters, and consequently the exe- 
 cutor is vested with all the personal estate of his 
 testator wherever situated. [Middlehrooik v. Mer- 
 chant's Bank, 27 How., 474 ; Peterson v. Ghemical 
 Bank, 29 How., 240.) 
 
 Having perfected the inventory and learned the 
 extent and details of his trust, the executor or 
 administrate^ will proceed to convert the property 
 which may not be producing interest, into money, 
 at the same time carefully watching the notes, etc., 
 to protect the estate by collections, when necessary, 
 for if he neglect to call in moneys loaned on per- 
 sonal security by the decedent, and a loss accrue, 
 which might have been avoided by an early col- 
 lection, he will, be chargeable for the loss. (Wil- 
 liams on Exrs., 15, 43.) 
 
 §2. (2 R. S., 113; 3 R. S., 5th ed., 201.) 
 " Actions of account, and all other actions upon 
 contract, may be maintained by and against exe- 
 
70 EXECUTOR'S AND ADMINISTRATOR'S GUIDE. 
 
 cutors, in all cases in which the same may have 
 been maintained by or against their respective 
 testator. * * * 
 
 [All transfers made by any person in fraud of 
 the rights of creditors, may be treated as void by 
 executors or administrators, and they may re- 
 cover full value of any person, who shall have 
 received the property of the deceased. S. L., 1858, 
 506.] 
 
 § 3. Administrators shall have actions to demand 
 and recover the debts due to their intestate ; and 
 the personal property and effects of their intestate ; 
 and shall answer and be accountable to others, to 
 Wihom the intestate was hold'en or bound, in the 
 same manner as executors. 
 
 § 4. Executors and administrators shall have 
 actions of trespass against any pers^ who shall 
 have wasted, destroyed, taken or carried away, or 
 converted to his own use, the goods of their testa- 
 tor or intestate, in his lifetime. They may also 
 maintain actions for trespass committed on the 
 real estate of the deceased in his lifetime. 
 
 § 5. Any person, or his personal representatives, 
 shall have actions of trespass against the executor 
 or administrator of any testator or intestate, who, 
 in his lifetime, shall have wasted, destroyed, taken 
 or carried away, or converted to his own use, the 
 goods or chattels of any such person, or committed 
 any .trespass on the real estate of any such person. 
 
OF THE COLLECTION OP THE ESTATE. 71 
 
 § 6. The executors and administrators of every 
 person, who as executor, either of right, or in his 
 own wrong, or as administrator, shall have wasted 
 or converted to his own use any goods, chattels or 
 estate of any deceased person, shall be chargeablek 
 in the same manner as their testator or intestate 
 would have been if living." 
 
 Executors and administrators may sue in any 
 of the courts of the state, and may be sued 
 in any except the justices' court. In bringing 
 suit, the complaint should set forth the cause of 
 action, then allege the death of the testator or' 
 intestate, and that on a certain day, letters 
 were issued by a certain surrogate {Beaxih v. 
 King, 17 Wen., 197; Sheldon y. Hoy, 11 How., 
 11 ; White v. Joy, 13 N. Y., 83.) 
 
 They are. bound to collect or endeavor to collect 
 within a reasonable time, or they become personally 
 responsible. They are bound to use the same 
 diligence which a prudent man would use in his 
 own affairs. 
 
 [They are liable only for gross or collusive neg- 
 ligence in making collections. Buggies v. Sherman 
 14 Johns, 446. 
 
 They are bound to endeavor to make collections 
 from solvent persons in other states, and if necessary 
 to procure some proper person to be appointed 
 administrator there, and when such a debt is lost 
 by reason of their neglect, they are liable. Shultz 
 v. Pulver, 11 Wend., 361.] 
 
72 EXECUTOR'S AND ADMINISTRATOR'S GUIDE. 
 
 They may retain a legacy or distributive share in 
 whole or in part, in satisfaction of a debt due from 
 a legd,tee, or distributee, to the estate. The legatee 
 or distributee is not entitled to his share, so long as 
 Jbe retains in his own hands a part of the funds 
 out of which payment is to be made. [Smith v. 
 Kearney, 2 Barb, ch.-, 533.) 
 
 But an executor or administrator cannot sue his 
 co-executor or co-administrator, to recover a debt 
 due to the estate ; but on the final settlement, the 
 executor or administrator, debtor to the estate 
 may be charged with his indebtedness. [Decker 
 V. Miller, 2 Paige, 149.) Or his indebtednes may 
 be settled in the surrogates' court, or a court of 
 equity, on the application of his co-executor or 
 co-administrator, and such disposition of the fund 
 as justice and equity may require, may be directed 
 by the court. [Smith v. Lawrence, 11 Paige, 206 ; . 
 11 Barb., 546.) 
 
 The statute gives one year extension of the 
 statute of limitations, in favor of the estate of a 
 deceased person, against debtors, or seven years in 
 all, upon simple contract debts ; while the time is 
 extended eighteen months, and the time which 
 elapses between the death of the testator or intes- 
 tate, and the granting of letters, in favor of credi- 
 tors and against the estate. 
 
 [S. L. 1868, chap. 594, provides as follows : " But 
 the statute of limitations shall not be made avail- 
 
OF THE COLLECTION OP THE ESTATE. 73 
 
 able as a defence to such, debt or claim (against 
 decedent) provided tbe same shall be presented at 
 the first accounting, and provided the same was 
 not barred by the statute, at the time of the death 
 of the testator or intestate. See also Scomll v. 
 Scmrill, 45 Barb., 517.] 
 
 The statute provides -(2 R. S., 87 ; 3 E. S., 5th 
 ed., 173), that for the purpose of converting the 
 personal estate into money, the executor or admin- 
 istrator may sell at public or private sale, and 
 except ia the city of New York, on a credit of not 
 exceeding one year with approved security. 
 
 [Where an administrator sold leasehold property 
 on credit, without security, whereby purchase 
 money was lost, they were held liable to the next 
 of kin. Kmg\. EIng. 8 Johns, ch., 552 ; but see 
 OrcuU V. ArmSjZ Paige, 459, and that he shall 
 not be responsible for any loss happening by such 
 sale, when made in good faith and with ordinary 
 prudence.] 
 
 An executor or administrator, cannot be allowed 
 either openly or by mean^ of another person, to 
 become the purchaser of any part of the assets, 
 but he shall be considered a trustee for the person 
 interested in the estate, and shall account for 
 the utmost extent of advantage made by him of 
 the subject so purchased. {Williams JEJxrs., 801; 
 Campbell v. Johmmi, 1 Sand, ch., 148 ; Van Epps 
 
74 EXECUTOR'S AND ADMINISTRATOR'S GUIDE. 
 
 V. Tan Epps, 9 Paige, 237; Ames v. Downing, 1 
 Brad. U, 4 Kent Com., 438.) 
 
 Articles not necessary for the support and sub- 
 sistence of the family of the deceased, or not speci- 
 fically bequeathed, shall be first sold ; and articles 
 so bequeathed shall not be sold until the residue 
 of the personal estate has been applied to the 
 payment of the debts. Where sales, are made at 
 auction, as is quite usual, a public notice should be 
 given, and the time for the vendue should be fixed 
 on such a day as will be most likely to secure a 
 good attendance of bidders, and a good demand. for 
 the articles to be sold. Thus, for example, it may 
 be prudent to delay the sale of live stock during 
 winter, expending in the meantime, part of the 
 hay and grain inventoried, for their subsistence ; or 
 the sale of the stock of a manufacturer may be in 
 like manner delayed, so as to meet the market. 
 The executor or administrator should use good 
 judgment in the matter. 
 
 It has become quite common latterly to insert 
 in wills a provision authorizing the executor to 
 compromise debts due to the estate, and it is a 
 very useful and proper provision ; where, however, 
 the mil contains no such provision the executor, 
 and in all cases the administrator, to make a com- 
 promise of a claim must obtain authority for that 
 purpose from the surrogate. (S. L., 1847, chap. 
 80 ; 3 R. S., 5th ed., 174.) 
 
OF THE COLLECTION OF THE ESTATE. 75 
 
 [Before the statute, at common law, an execu- 
 tor or administrator might compromise a claim, 
 but might be held responsible for the consequences 
 of a serious error in judgment. The act enables 
 them to obtain the sanction of the judgment of the 
 surrogate, in addition to their own, and this 
 affords them additional protection, if their conduct 
 is fair and honest. Ghcmteau v. Suydam, 21 N. Y., 
 179.] 
 
 To obtain this he must present to the surrogate 
 a petition showing the facts which render it for 
 the interest of his trust to make a compromise, as 
 that the debtor has failed and will pay in settle- 
 ment so much per cent ; that nothing can be col- 
 lected by course of law from the debtor, but that 
 he will pay so much to be released, and that he 
 fears he will not be able to make better terms Or 
 secure more on the claim, or such other facts as 
 the case may present, and the surrogate may 
 authorize him to compromise, or compound the 
 claim on terms expressed in the order. The set- 
 tlement so made will protect the executor or 
 administrator, unless on the" final settlement it is 
 shown that he acted in the matter fraudulently or 
 negligently. 
 
 At the expiration of six months from the grant- 
 ing of letters unless the executor or administrator 
 is acquainted with the claims against the estate, 
 
76 EXECUTOR'S AND ADMINISTKATOR'S aUIDB. 
 
 and is willing to risk the presentation of claims of 
 whicli he may be ignorant, or unless he is so inter- 
 ested in the estate as residuary legatee or next of 
 kin, that the debts must, in any event, be paid 
 virtually by him personally, he should obtain the 
 direction of the surrogate to advertise for claims. 
 The surrogate directs what paper or papers the 
 advertisement shall be inserted in, and it shall be 
 published for at least six months (see form, order 
 and notice, Appendix.) 
 
 There are few cases beside those stated above, 
 in which it will be prudent to omit this, as the 
 compensation of an executor or administrator is 
 too small to warrant any risk, and if he pays out 
 all the estate, acting on his own supposed know- 
 ledge, he may be compelled, notwithstanding, to 
 pay claims of which he was before ignorant. But 
 if he shall distribute the whole estate among cre- 
 ditors who shall have presented claims under the 
 notice, he will be protected against those who fail 
 so to present them. 
 
 The notice to present claims, must be to present 
 them to the executor or administrator personally, 
 not to . an attorney, for the power to accept or 
 reject cannot be delegated. {Hardy v. Avnes, 47 
 Barb., 413.) 
 
 The claims may be presented by letter, or in 
 any way which deals fairly with the executor or 
 
OF THE COLLECTION OF THE ESTATE. 77 
 
 administrator, and the estate whicli he represents, 
 and the claimant need not produce vouchers, or 
 make an affidavit unless requested. {QamevoortY. 
 Nelson, 6 Hill, 389.) Where a claim has been 
 virtually presented and acknowledged by the exe- 
 cutor or administrator before notice to creditors to 
 present clainis, it is not necessary to present it 
 again for allowance under the statute. And 
 where the executor or administrator admits the 
 validity of the claim, by paying interest on it from 
 time to time, it is tantamount to a formal admis- 
 sion of its justice upon presentment under notice. 
 {Johnson v. Corbett, 11 Paige, 265.) 
 
 In respect to creditors of the estate, the executor 
 or administrator, is a trustee, and not a creditor. 
 And like all trustees, where the names of the ces- 
 tui que trusts are not given in the deed, he is bound 
 to exercise the utmost care, before he accepts a 
 claim as entitled to payment, and the law will afford 
 him all reasonable means for so doing. He cannot 
 be coerced to pay debts short of a year from the 
 time of granting letters. The remedies of the cre- 
 ditor, in the meantime, however, are not absolutely 
 suspended ; he may prosecute an action, but he 
 must do so at his own cost and expense, and not 
 at the cost and expense of the estate, unless he 
 can show that the executor or administrator has 
 been guilty of some laches, or illegal act in regard 
 
78 EXECUTOR'S AND ADMINISTEATOE'S GUIDE. 
 
 to the adjustment of the claim. (Buchhurst v. 
 Hunt, 16 How., 407.) 
 
 The executor or administrator may require by law 
 satisfactory vouchers in support of any claim pre- 
 sented under this notice, such as copies of papers 
 on which it is founded, and also an affidavit 
 (see form, Appendix) of . the claimant that the 
 claim is justly due; that no payments have been 
 made thereon, and that there are no assets against 
 the same (unless stated in the account) to the 
 knowledge of the claimant. 
 
 If the executor or administrator doubt the 
 justice of any claim so presented, he should ex- 
 pressly reject it, putting his rejection on the ground 
 that the claim, or some part of it, is not legally 
 due. {Kidd v. Ghapman, 2 Barb., ch. 414.) And 
 he may enter into an agreement with the claimant 
 to refer the matter in controversy to one or more 
 disinterested persons to be approved by the surro- 
 gate (see form of agreement etc., in Appendix), 
 and upon fihng such agreement and approval of 
 of the surrogate in the office of the county clerk, 
 the matter will proceed as an action in the supreme 
 court, and the report of the referee may be appealed 
 from as in similar proceedings begun in that court, 
 and if the claim be disputed and rejected by him, 
 and is not referred as above, the claimant will be 
 barred from commencing a suit against the execu- 
 tor or administrator unless he commences the same 
 
OF THE COLLECTION OP THE ESTATE. 79 
 
 within six months from such dispute or rejection, 
 or within six months after the same or some part 
 of it became due ; and the executor or administra- 
 tor may p»ove the facts of such refusal and neglect 
 to commence a suit within six months in bar to an 
 action begun afterwards. (Matter of Est. of Alex- 
 ander Kuder, 1 Brad., 192. Whitmore v. Foose, i 
 Den., 159 ; Reynolds v. Collins, 3 Hill, 36.) 
 
 To protect the executor or administrator from 
 costs, he should accompany his rejection of the 
 claim with an offer to refer it. The offer need not 
 be in writing {Lansing v. Swartz, 9 How., 434.) 
 And where the parties cannot agree upon the 
 referee, or referees, it seems that the offer should 
 be to refer to one or more to be approved by the 
 surrogate. [Qorham v. Bipley, 16 How., 313.) 
 
 [Where the executor, when the claim was pre- 
 sented, rejected it, but afterwards entertained nego- 
 tiations in reference to a settlement, it was held 
 that his previous rejection was waived, and the 
 statutory bar to an action could not be interposed, 
 Calanan v. McClure, 47 Barb., 206.] 
 
 In case any suit shall be brought upon a claim 
 which shall not have' been presented to the exe- 
 cutor or administrator within six months from the 
 first publication of the advertisement, he will be 
 protected in having made payment of legacies, or 
 any debts or distribution among the next of kin, 
 
80 EXECUTOR'S AND ADMINISTEATOR'S GUIDE. 
 
 before such suit was commenced, on proving such 
 advertisement.* 
 
 But any creditor who may have neglected to 
 present his claim under the notice, may^ notwith- 
 standing, collect it of the next of kin or legatees 
 who may have received assets from the estate. 
 
 No executor or adnainistrator shall be charge- 
 able upon any special promise to answer in dam- 
 ages or to pay the debts of the testator or intestate 
 out of his own estate, unless the agreement for 
 that purpose or some memorandum or note thereof 
 be in writing (expressing a consideration), and 
 signed by such executor or administrator, or by 
 some other person by him' thereunto specially 
 authorized. (2 K S., 113 ; 3 K. S., 5th ed., 201.). 
 
 Liahility of the Executor as to obligations con- 
 tracted hy him. 
 
 The question as to who is liable for obligations 
 contracted by the executor or administrator, has 
 been settled in Ferris v. Myrick (41 N. Y., 815), 
 which holds that the executor or administrator, is 
 liable personally, and not the estate, for contracts 
 made for the funeral expenses of the deceased, and 
 that all causes of actions arising upon contracts 
 made by executors Or administrators, are against 
 them personally and not against the estate, and 
 
RETURN OP mVENTORY. 81 
 
 the judgment must be de hanis projpriis ; that is, 
 against his own goods, and not the goods of the 
 estate. Such causes of action cannot be united 
 with causes of actions arising upon the contracts 
 of the deceased. 
 
82 EXECUTOB'S AND ADMINISTRATOR'S GUIDE. 
 
 CHAPTER XIII. 
 
 Of the Payment of Debts and Legacies. 
 
 At the expiration of one year from the issuing 
 of letters, the executor or administrator is presumed 
 to know not only the assets in hand, but, having 
 advertised for claims, also the liabilities of the 
 estate, and he may proceed to pay debts and lega- 
 cies, and distribute among the next of kin. 
 
 Legacies are directed by law to be paid in one 
 year from the granting of letters, unless by the 
 will, an earlier or different time is fixed, but debts 
 are in all cases to be paid in preference to legacies. 
 
 § 27. (2 R. S., 87; 3 R. S., 5th ed., 74.) "Every 
 executor and administrator shall proceed with 
 diligence to pay the debts of the deceased, and 
 shall pay the same according to the following 
 order of classes : 
 
 1. Debts entitled to a preference under the laws 
 of the Ilriited States. 
 
 2. Taxes assessed upon the estate of the deceased 
 previous to his death. 
 
 [Taxes assessed on real estate subsequently to 
 the death of the deceased, are not to be paid by 
 the executor or administrator, Wilcox v. Smith, 26 
 Barb., 316. 
 
PAYMENT OF DEBTS AND LEGACIES. 83 
 
 An assessment confirmed at the time of the tes- 
 tator's decease, although a lien upon the real estate 
 is also a debt to be paid out of the personal estate, 
 Seahm-y v. Bowen, 3 Brad., 207.] 
 
 3. Judgments docketed, and decrees enrolled 
 against the deceased according to the priority 
 
 . thereof respectively. 
 
 4. All recognizances, bonds, sealed instruments, 
 notes, bills and unliquidated demands and ac- 
 counts, or in other words, all other debts. 
 
 [Mortgages cannot be paid out of the personal 
 estate, unless such payment is provided for in the 
 will. WaldronY. WaZc?7'ora,4Brad.,114. But where 
 the real and personal estate are thrown into one 
 fund, in which the same parties are interested 
 equally, the executor may, for the benefit of- the 
 estate, apply personal property to pay a mortgage 
 on the realty. Hepburn v. Hepburn, 2 Brad., 47. 
 
 In case of unpaid purchase money of real estate 
 agreed to be paid by the ancestor or testator, the 
 heir or devisee has a right to have the same paid 
 out of the personal estate of the decedent. Wright 
 V. Holhrooh, 32 N. Y., 587. 
 
 Where a creditor has additional security, he 
 should be compelled to exhaust that security and 
 only come in against the personal estate for the defi- 
 ciency. SotZseyv. i^eecZ, 9 Paige, 446. The creditors 
 of an insolvent firm in case of the death of one of 
 
84 EXECUTOR'S AND ADMINISTRATOR'S GUIDE. 
 
 them, cannot collect their debts against the separate 
 estate of the decedent until his individual liabili- 
 ties shall have been paid in full. Wilder v. Keeler, 
 3 Paige, 167; Payne v. Matthews, 6 Paige, 19.] 
 
 But reasonable funeral expenses are to be paid 
 in preference to any debts, and are charged not as 
 debts, but expenses of administration. 
 
 The question often arises, what are reasonable 
 funeral expenses? In answer it may be said, as a 
 digest of the decisions on the subject, that as 
 between the executor or administrator and legatees 
 or next of kin, expenses incurred in burying the 
 deceased according, to his station in life, as deter- 
 mined by the custom of the place of his residence, 
 are reasonable charges and will be allowed. 
 
 And a charge for a monument at the grave, is 
 also proper in this case. But where the estate is 
 so involved as that the funeral expenses must ne- 
 cessarily reduce the payments to creditors, a charge 
 only for a plain and inexpensive funeral will be 
 allowed, and that without a monument or tomb- 
 stone. 
 
 And the expense in this case must necessarily 
 vary according to the locality, as it will be greater 
 in a city than in the country. 
 
 The executor or administrator should exercise 
 caution in the matter. 
 
 [When the decedent dies away from home, the 
 
PAYMENT OP DEBTS AND LEGACIES. 85 
 
 necessary expense of, notifying his family and 
 removing his body to his late home, are proper 
 funeral expenses. Easier v. Easier. 1 Brad., 248.] 
 
 [Tombstones were allowed as part of the funeral 
 expenses, in Connecticut, even when the esta;te 
 was insolvent Fairman's Appeal, 30 Conn. E., 205. 
 Moderate expense for mourning for the widow and 
 family, may be allowed as part of the funeral ex- 
 penses. Wood's Estate, 1 Ashmead, 314.] 
 
 § 28. (3 E. S., p. 84 ; 5th ed., 174.) " No pre- 
 ference shall be given in the payment of any debt 
 over other debts of the same class, except those 
 specified in the third class (which are to be paid 
 according to priority) ; nor shall a debt due and 
 payable be entitled to preference over debts not 
 due ; nor shall the commencement of a suit for the 
 recovery of any debt, or the obtaining a judgment 
 thereon against the executor or administrator, 
 entitle such debt to any preference over others of 
 the same class. 
 
 § 29. Debts not due" may be paid by an exe- 
 cutor or administrator according to the class to 
 which they may belong, after deducting a rebate 
 of legal interest upon the sum paid, for the time 
 unexpired. 
 
 § 30. Preference may be given by the surrogate 
 to rents due or accruing, upon leases held by the 
 testator or intestate at the time of his death, over 
 
86 EXECUTOR'S AND ADMINISTRATOR'S GUIDE. 
 
 debts of the fourth clasfe, whenever it shall be 
 made to appear to his satisfaction that such pre- 
 ference will benefit the estate.of such testator or 
 intestate." (Hofoey v. Smith, 1 Barb., 372). 
 
 [The executor or administrator will not be pro- 
 tected in paying an outlawed debt, nor will his 
 promise revive such a debt. A provision in the 
 will, for the payment of all just debts, does not 
 revive a debt barred by the statute of limitations, 
 3 Wend., 503. The statute of limitations may be 
 interposed by the executor or any person interested. 
 Warren v. Poff, 4 Brad., 260.] 
 
 In all cases of payments, whether of debts, lega- 
 cies or expenses, the executor or administrator 
 should take a receipt for such payment, to retain 
 and use' on his final settlement. (See form, Ap- 
 pendix.) 
 
 So it appears, that eaxjh of the foregoing classes 
 must be paid in full before any debts of a succeed- 
 ing class can be paid, and if the estate can not pay 
 any class in full, the debts of that class will be 
 paid pro rata^ except in the third class, in which 
 the judgments or decrees are to be paid according 
 to their priority. 
 
 § 31. "In any suit against an executor or ad- 
 ministrator, the defendant may show under a notice 
 for that purpose, given • with his plea, that there 
 are debts of a prior class unsatisfied, or that there 
 
PAYMENT OP DEBTS AND LEGACIES. 87 
 
 are unpaid debts of the same class witli 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 satisfying the debts of 
 £he 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 judgment for the whole or 
 part of his debt (so much as he proves), to be 
 levied of future assets." No execution shall issue 
 against an executor or administrator, until an 
 account of his administration shall have been ren- 
 dered and settled, or unless on an order of the sur- 
 rogate who appointed him. 
 
 [An execution cannot issue to sell real estate of 
 a deceased person, within one year after the death 
 of the testator or intestate, nor afterwards, with- 
 out, leave of the surrogate. S. L:, 1850, p. 639.. 
 When the surrogate after hearing, grants an order 
 that an execution issue, no appeal lies from the 
 order. Mount v. Mitchell, 31 N. Y., 356." If, on 
 an accounting, there appear to be no assets in the 
 hands of the executor, the surrogate cannot grant 
 an order that execution issue. iSt. John v. Voor- 
 hees, 19 Abb., 53. Statutory provisions reviewed. 
 Matter of Mott, 1 Tucker, 344.] 
 
 To entitle an executor or administrator to pay 
 himself a claim due from the deceased, he must 
 prove the same and have it allowed by the surro- 
 
88 EXECUTOR'S AND ADMINISTRATOR'S GUIDE. 
 
 gate, and it is not entitled to any preference over 
 others of the same class. This proof may be made 
 on the return of a citation for that purpose, directed 
 to the proper persons, (i. e. to the legatees next of 
 kin and all creditors who have presented claims) j 
 or, as is most usual, on the final accounting, when 
 all the proper persons must necessarily be cited. 
 (2 R. S., 88 ; S. L., 1837, chap. 460, § 37; 3 R. 
 S., 5th ed., 175. See forms, Appedix.) 
 
 An executor or administrator who makes a claim 
 against the estate, mustsupportitbya sworn voucher, 
 such as he may require from others, under § 35, of the 
 statute, and it is error for the surrogate to allow it, 
 whatever the force of the proof, unless so verified." 
 Glarh v. Clark, 8 Paige, 152 ; Terry v. Dayton, 31 
 Barb., 519. K he compounds a claim, or buys it 
 in for less than is due, he cannot take the benefit 
 of it to himself. Van Horn v. Fonda. 5 Johns, ch., 
 388. Nor will he be permitted to buy up claims 
 against creditors of the estate, for the purpose of 
 obtaining a set ofi" in equity. Dvdly v. Oriswold, 
 
 2 Brad., 24. He cannot retain moneys for a debt 
 due to himself barred by the statute of limitations 
 in the lifetime of the testator. Sogers v. Sogers, 
 
 3 Wend., 503. And on the hearing any person 
 interested may set up the statute. Vreat v. 
 Fortune. 2 Brad., 116. But the statute of limita- 
 tions is not a defence to the claim, provided it is 
 
PAYMENT OP DEBTS AND LEGACIES. 89 
 
 presented at the first accounting, and it was not 
 barred at the time of the decedent's death. S. L., 
 1868, chap. 694.] 
 
 The executor or administrator in making pay- 
 ment of debts or legacies, when he cannot pay in 
 full, should be careful not to pay even 'pro rata, so 
 much as to leave not enough of the estate to pay 
 his expenses and charges. 
 
 [The executor may retain out of a legacy a 
 debt due the testator from the legatee. Est. 
 Chris. Stamler, 1 Tucker, 42.J 
 
 So much has been written upon the supposition 
 that the estate is so involved, as to render caution 
 necessary, but where the estate is manifestly abun- 
 dant, the executor or administrator may pay all 
 debts and even legacies, and distribute the estate 
 without the delay incident to advertising. 
 
 [Specific legacies may be delivered as soon as it 
 shall be clear that it will not be necessary to dis- 
 pose of them to pay debts. If specific articles not 
 necessarily consumed in the using, are bequeathed 
 to a legatee for life, with a limitation over, and 
 without any directions to the executor to hold them 
 in trust for the remainder-man, the executor is 
 authorized to deliver the same to the person entitled 
 to a life estate therein ; taking from such person 
 an inventory and receipt, specifying that such arti- 
 cles only, belong to the first taker for life, and that 
 
90 EXECUTOR'S AND ADMINISTRATOR'S GUIDE-. 
 
 afterwards, they are to be delivered to the legatee 
 who is entitled to them in remainder. Spear v. 
 Tkihham, 2 Barb. Ch. R., 212.] 
 
 As before remarked, " No legacies shall be paid 
 by any executor or administrator, until after the 
 expiration of one year from the time of granting 
 letters testamentary or of administration, unless 
 the same are directed by the will to be sooner paid 
 (2 R. S., 90 ; 3 R. S., 5th ed., 177.) 
 
 § 44. (Id.) " In case a legacy is directed to be 
 sooner paid, the executor or administrator may 
 require a bond, with two sufficient sureties, con- 
 ditioned, that if. any debts against the deceased 
 . shall duly appear, 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 
 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 legatee ; 
 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 interesi;, to the exe- 
 cutor or administrator entitled thereto. (See form, 
 Appendix.) 
 
PAYMENT OP DEBTS AND LEGACIES. • 91 
 
 § 45. After the expiration of one year from the 
 granting of any letters testamentary or of adminis- 
 tration, the executors or administrators shall dis- 
 charge the specific legacies bequeathed by any 
 will and pay the general legacies, if there be assets, 
 and if there be not sufl&cient assets, then abate- 
 ment of the general legacies shall be made in equal 
 proportions. 
 
 [Specific legacies are not subject to abatement, 
 unless the testator clearly expresses his intention 
 that they shall be so. 1 P. Williams, 540. 
 
 The rule as to abatement of general legacies, 
 applies only to such as are mere gratuities. 
 Where the legacy is given for a debt, owing to the 
 legatee, or for the rehnquishment of any right, or 
 interest, 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. 1 
 P. Williams, 127, 6 Paige, 298; 1 Kuss's Ch. R., 
 543; 1 Edwards Ch., 411. A legacy of piety, as 
 for headstones at a parent's grave, will not be sub- 
 ject to abatement. 6 Paige, 278.] 
 
 Such payments may be enforced by the surro- 
 gate, in the same manner as the return of an in- 
 ventory, as hereinbefore provided, and also by a 
 suit, on the bond of such executor or administrator, 
 whenever directed by the surrogate." 
 
 The surrogate will direct the payment as above 
 
92 feXECUTOR'S AND ADMINISTRATOR'S GUIDE. 
 
 on the presentation of a petition, stating the facts 
 which show that the legacy is payable, or an action 
 may be commenced therefor in the supreme court. 
 (See forms. Appendix.) 
 
 § 46. "In case any legatee is a minor, his legacy, 
 if under the value of fifty dollars, may be paid to 
 his father, to the use and . for the benefit of such 
 , minor. 
 
 § 47. " If the legacy be of the value of fifty dol- 
 lars or more, the same may, under the direction 
 of the surrogate^ be paid to the general guardian 
 of a minor, who shall be required to give security 
 to the minor, to be approved by the surrogate, for 
 the faithful' application and accouilting for such 
 legacy." 
 
 The security required in this section is in addi- 
 tion to the security given on the appointment of 
 the general guardian, obviously, for the reason 
 that a legacy given after the appointment, made 
 no part of the estate of the minor on which the 
 amount of such former security was based. 
 
 § 48. " If there be no such guardian, or the sur- 
 rogate do not direct such payment, the legacy 
 shall be invested in permanent securities, under 
 the direction of the surrogate^ in the name and for 
 the benefit of such minor, upon annual interest ; 
 and the interest may be applied, under the direc- 
 tion of the surrogate, to the support and education 
 of such minor. 
 
PAYMENT OF DEBTS AND LEGACIES. 93 
 
 § 49, "It shall be the duty of the surrogate, 
 where there is no guardian of such minor, to keep 
 in his office the securities so taken, and to collect, 
 receive and apply the interest ; and when neces- 
 sary, to collect the principal and reinvest the same, 
 and also to reinvest any interest that may not be 
 necessarily expended as aforesaid. 
 
 § 50. " On such minor coming of age, he shall be 
 entitled to receive the securities so taken, and the 
 interest or other moneys that may have 'been re- 
 ceived ; and the surrogate and his sureties shall be 
 liable to account for the same. 
 
 §51. " In case of the death of such minor before 
 coming of age, the said securities and moneys shall 
 go to his executors or administrators, to be applied 
 and distributed according to law ; and the surrogate 
 and his sureties shall, in like manner, be liable to 
 account to such executor or administrator." 
 
 § 9. (2 R. S., 114 ; 3 E. S., 5th ed., 202.) " If, 
 after the expiration of one year from the granting 
 of letters testamentary or administration, there be 
 more than sufficient assets to pay the debts of the 
 testator or intestate, and, if after reasonable demand 
 made, and the offer of a bond with sufficient sure- 
 ties, as in the next section prescribed, by any 
 legatee or by any of the next of kin entitled to 
 share in the distribution of the estate, such exe- 
 , cutor or administrator shall refuse to pay the 
 legacy bequeathed by the will to such legatee, or 
 
94 EXECUTOR'S AND ADMINISTRATOR'S GUIDE. 
 
 the share of any such person entitled- to distribu- 
 tion, he shall be liable to an action, at the' suit of 
 such legatee or next of kin, or their personal repre- 
 sentatives. 
 
 § 10. " Previous to the commencement of the 
 action, a bond to the executor or administrator 
 shall be filed with the clerk of the court (the 
 county clerk) with such sureties as the court or 
 any judge thereof shall approve, in double the sum 
 of such share or legacy, conditioned that if any 
 debt owing by the testator or intestate shall after- 
 wards be recovered or duly made to appe^ar for the 
 payment of which there shall be no assets other 
 than the said share or legacy, that then such per- 
 son shall refund the legacy or share that may be 
 recovered in such action, or such ratable part or 
 proportion thereof with the other legatees or re- 
 presentatives of the deceased, as may be necessary 
 for the payment of the said debts and the costs 
 and charges incurred by a recovery against such 
 executor or administrator in any suit therefor. 
 
 § 11. " When given by a legatee the bond shall 
 be further conditioned, that if no sufficient assets 
 shall thereafter remain to pay any other legacy 
 which may.be due, that then such person shall 
 refund such ratable part or proportion thereof, 
 with the other legatees or representatives of the 
 deceased as may be necessary- for the payment of 
 the proportional part of such other legacy." 
 
PAYMENT OF DEBTS AND LEGACIES. 95 
 
 A like action may be brought by the guardian 
 of a minor entitled to a legacy or distributive share 
 on filing a like bond and also a bond to the minor 
 to account for the sum recovered on such legacy 
 or share. And if it appear on the trial of such 
 action, that there are not sufficient assets to pay 
 all the legacies, then a judgment may be taken for 
 the proportionate part. 
 
 [The statute of limitations, may be interposed in 
 the surrogate's, or any other court, in a proceeding 
 to compel the payment of a legacy, and if it shall 
 appear that more than six years have elapsed since 
 the same became payable, it is a bar to the pro- 
 ceeding. Smith V. Remington, 42 Barb., 75. But 
 quere."] 
 
 § 18. (p. 116.) " The surrogate having juris- 
 diction, shall have power to decree the payment of 
 debts, legacies and distributive shares against the 
 executor or administrator of a deceased person in 
 the following cases : 
 
 1. '' Upon the application of a creditor the pay- 
 ment of any debt or proportional part thereof may 
 be so decreed at any time after six months shall 
 have elapsed from the granting of letters testa- 
 mentary or of administration. 
 
 2. "Upon the application of a legatee or relative 
 entitled to a distributive share, payment of such 
 legacy or distributive share, or its just propor- 
 tional part, miy be so decreed at any time after 
 
96 EXECUTOR'S AND ADMINISTRATOR'S GUIDE. 
 
 one year shall have elapsed from the granting of 
 . such letters." 
 
 The surrogate will act' in these cases upon the 
 presentation of a petition stating the facts which 
 confer jurisdiction, and will cite the executor or 
 administrator to show cause why pajnuent should 
 not be decreed ; and if on the return day no cause 
 is shown, an order will he made for payment, and 
 such payment may be enforced by action upon the 
 bond filed by the executor or administrator. (See 
 forms Appendix.) 
 
 Payment of a legacy or a distributive share, or 
 a part thereof, may be obtained in certain cases 
 against any executor or administrator, except the 
 public administrator, of the city of New York, 
 under the following sections : 
 
 § 82. (2 K S., 98 ; 3 E. S., 5th ed., 185.) "Any 
 person entitled to any legacy, or to a distributive 
 share of the estate of a deceased person, at any 
 time pi^evious to the expiration of one year from 
 the granting of letters testamentary or of adminis- 
 tration, may apply to the surrogate either in per- 
 son or by his guardian, after giving reasonable notice 
 to the executor or administrator to be allowed to 
 receive such portion of such legacy or share as may 
 be necessary for his support. 
 
 § 83. " If it appear to the surrogate that thAe is 
 at least one third more of assets in the hands of 
 
PAYMENT OF DEBTS AND LEGACIES. 97 
 
 sucli executor or administrator, than will be suffi- 
 cient to pay all debts, legacies and claims against 
 the estate, then known, he may, in his discretion, 
 allow suph portion of the legacy or distributive 
 share to be advanced as may be necessary for the 
 support of the person entitled thereto, upon satis- 
 factory bonds being executed for the return of 
 such portion with interest, whenever required." 
 
 Of Investments. 
 
 An executor or administrator, should not suffer 
 the money of the estate to be unproductive for an 
 unreasonable time in his hands, but he should in- 
 vest them in good securities. When real securities 
 are not to be had, he should obtain the approval 
 of the surrogate as to the investment. He should 
 always exercise the care which a prudent man 
 could use in his own affairs, as to title, when real 
 estate is in question,' or as to the security offered 
 by a bank, if a deposit is made of the fund. 
 
 In making permanent investments, they can 
 only loan on real estate, or the bonds of the state 
 or the United States. {King v. Tallot, 40 N. Y.) 
 And the rule is established in equity, that if the 
 loan be made on personal security, and a loss 
 accrue, he shall bear it. (4 Edwd. Ch. E,., 422.) 
 7 
 
98 EXECUTOR'S AND ADMINISTRATOR'S GUIDB. 
 
 CHAPTER XIV. 
 
 Of the Accounting of Executors and Administra- 
 tors, THE Final Settlement and Distribution 
 OF Estates, a'nd of Commissions. 
 
 When eighteen months from the granting of 
 letters shall have elapsed, any person interested in 
 the estate of the deceased, as creditor, legatee, or 
 next of kin, and who shall not have been paid, 
 may cause the executor or administrator to be cited 
 by the surrogate to render an account of his pro- 
 ceedings, and show cause why he should not be 
 ordered to pay the claim or share of such person. 
 (2 R. S., § 52, p. 92 ; 3 R. S., 5th ed., 178.) And 
 the surrogate will cite an administrator, upon the 
 application of any person who is or has been his 
 bail, or of the legal representatives of such person. 
 (Chap. 261, S. L., 1859.) 
 
 [It is probably the duty of the surrogate, where 
 infants only are concerned, to call executors or 
 administrators to an account, after a reasonable 
 time has elapsed, beyond the eighteen nionths 
 allowed by law, without the application of any 
 one, if he has reason to apprehend that the interests 
 of the infants require his action. Smith v. Lawrence, 
 11 Paige, 211. 
 
FINAL SETTLEMENT AND COMMISSIONS. 99 
 
 The surrogate, on tlie receipt of a petition veri- 
 fied by oath, showing the interest of the petitioner, 
 will make an order that the executor or adminis- 
 trator render such account, which order shall be 
 served on' the executor or administrator by show- 
 ing to him the original, and at the same time leav- 
 ing a copy thereof, or, in case of his absence from 
 home, by leaving such copy with his wife, or some 
 suitable person at the place of his residence, within 
 thirty days, at least, from the time of hearing. 
 Or, if the executor or administrator reside out of 
 the state, such order may be served personally, at 
 least sixty days before the day of hearing, or by 
 publication in the state paper and a paper pub- 
 hshed in the county, once a week for three months. 
 In case of publication a copy of the order must be 
 served by mail at least thirty days before the day 
 appointed for hearing. Obedience to such order 
 may be enforced by attachment, or, if the party 
 cannot be found or if he neglect for thirty days 
 after being committed to jail, to render his account, 
 his letters may be revoked, and new letters 
 granted, and his bond may be prosecuted ' by his 
 successor, under the direction of the surrogate. 
 (S. L., 1837, ch. 460 ; 2 E. S., 92 ; 3 E. S., 5th ed., 
 178, 179. See petition, order, etc., Appendix.) 
 
 The costs of the proceeding may, in the discre- 
 tion of the surrogate, be charged upon the executor 
 
100 EXECUTOR'S AND ADMINISTRATOR'S GUIDE. 
 
 or administrator, personally. (S. L., 1867, chap. 
 782, §■ 8.) 
 
 In some counties, it is the practice for the surro- 
 gate to make an order that the executor or admi- 
 nistrator be cited to account, etc., and to serve the 
 citation in the manner directed for the service of 
 the order, as above. It is believed that either 
 course may be pursued safely. 
 
 On the return of the order or citation, the exe- 
 cutor or administrator may deny the right of the 
 petitioner to call him to an account, and may say 
 he is not a creditor, a legatee, or one of the next 
 of kin, interested in the estate. 
 
 [When the executor, on being cited to account, 
 alleged that the petitioner had assigned his interest 
 in the estate, it was held that the surrogate could 
 not try the question whether the assignment was 
 valid, and the executor was ordered to account. 
 Bcmfanti v. Deguerre, 3 Brad., 429. 
 
 A mere appearance of interest in the applicant 
 for an order to i^equire an inventory and account, 
 is suiEcient to authorize such order. TJiomson v. 
 Thmnson, 1 Brad., 24. 
 
 As a general rule, if the creditor swears positively 
 to a debt due to him from the estate, he will be 
 entitled to an order for an inventory and accounts. 
 Oratacap v. Fhyfe, 1 Barb. Ch. Kep., 485.] 
 
 And if the surrogate, on hearing the proofs, is 
 satisfied that the petitioner is not interested, he 
 
FINAL SETTLEMENT AND COMMISSIONS. 101 
 
 will dismiss the application with costs ; but if he 
 finds that the petitioner is interested iie will order 
 the executor or administrator to render an account. 
 
 The executor or administrator, however, instead 
 of contesting the right of the petitioner to have 
 him cited, or ordered to account, or if after contest 
 he is ordered to render an account, may apply for a 
 final settlement. 
 
 He may make an application for a final* settlement 
 of his account at any time after the expiration of one 
 yearfrom the date of his appointment. (S. L. 1867, 
 chap. 782, § 14.) The application for such a final 
 settlement is a petition stating the facts (see form 
 Appendix), and the surrogate issues a citation 
 directed' to the creditors, legatees, next of kin, 
 and all persons interested in the estate of the de- 
 ceased, to appear on a certain day, and attend the 
 final settlement of his accounts. (2 E. S., § 60, p. 
 93; 3 E.S.,, 5th ed., 180 and §70, p. 95; M, 182.) 
 On making such application, the accounting on the 
 appHcation of another party, will be adjourned, so 
 that both proceedings may be carried on together. 
 
 § 61. (Page 93.) " The citation shall be served 
 personally on 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 whose residences may 
 be unknown, either personally fifteen days ,pre- 
 
102 EXECUTOR'S AND ADMINISTRATOR'S GUIDE. 
 
 viously, or' by publishing the same in a newspaper 
 printed in the county at least four weeks before 
 the return thereof, and in such other newspapers 
 printed in any 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. 
 
 § 62. " If there be any such creditors, or other 
 persons interested residing in any other state of 
 the United States, or in either of the provinces of 
 Canada, the citation shall be published once in 
 each week for three months, in the state paper, 
 unless such citation be personally served on such 
 creditors or other persons interested a;t 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 shall be published as afore- 
 said, six months." 
 
 In case of the publication of the citation, a copy 
 of it should also be mailed to each party to be 
 served at his place of residence or post office ad- 
 dress, at least thirty days before the return day 
 thereof. (S. L., 1863, chap. 362.) 
 
 An admission of service of any parties of full 
 age, signed by them, is undoubtedly sufficient in 
 any of the proceedings in the surrogate's court, on 
 proving the signatures to the satisfaction of the 
 surrogate. 
 
PINAL SETTLEMENT AND COMMISSIONS. 103 
 
 Where a minor is interested in the final settle- 
 ment, service of the citation may be made on his 
 guardian, if he have any ; if he have no guardian 
 service should be made on the minor, in the pre- 
 sence of the person in whose charge he is placed. 
 This relates only to service on the minor in the 
 county; out of the county, the publication and 
 mailing is sufficient. 
 
 On the return day, if there be any minors inter- 
 ested, the surrogate will appoint a special guardian 
 for them, and if an adjournment is not necessary, 
 the executor or administrator files his account and 
 " 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 ac- 
 count and contest the same, and they and the exe- 
 cutor or administrator, shall have process, to be 
 issued by the surrogate to compel the attendance 
 of witnesses." (2 R. S., 63 ; 3 R. S., 5th ed., 180. 
 For form of account and objections, see Appendix.) 
 
 [On the coming in of the account, the surrogate 
 may refer it to an auditor. 2. R. S., 94, § 64 ; 5th 
 ed., 3 R. S., 180. In the surrogate's court of the 
 city and county of New York, the surrogate may 
 appoint a referee, to take testimony, examine the 
 account, to hear and determine all disputed claims, 
 and make report subject to the confirmations of 
 the surrogate. The referee shall have the same 
 
104 EXBCUTOE'S AND ADMINISTRATOE'S GUIDE. 
 
 powers and .compensations, as i;eferees appointed 
 by the Supreme Court. S. L., 1870, chap. 355, § 6.] 
 
 The surrogate, on proof of the amount of the 
 claims of the creditors who appear, will enter them 
 in his minutes as proved, and direct payment by 
 the executor or administrator in the decree. 
 
 § 54. (2 R. S., 92 ; 3 R. S., 5th ed., 179.) «In 
 rendering such account, every executor or admin- 
 istrator shall produce vouchers for all debts and 
 legacies paid, and for all funeral charges and just 
 necessary expenses, which vouchers shall be de- 
 posited and remain with the surrogate; and such 
 executor or administrator may be examined on 
 oath, touching such payments, and also touching 
 any property or effects of the deceased which have 
 come into his hands, and the disposition thereof. 
 
 § 55. " On the settlement of an account of an 
 executor or administrator, he may be allowed any 
 item of expenditure, not exceeding twenty dollars, 
 for which no voucher is produced, if such item is 
 supported by his own oath, positively to the fact 
 of payment, specifying when and to whom such 
 payment was made, and if such oath be uncontra- 
 dicted ; but such allowances shall not, in the whole, 
 exceed five Imndred dollars, for pa3anents in behalf 
 of any one estate. 
 
 § 56. " The surrogate may make allowance to 
 any executor or administrator, for the property of 
 
FINAL SETTLEMENT AND COMMISSIONS. 105 
 
 the deceased, perished oj- lost without the fault of 
 such executor or administrator. 
 
 § 57. " No profit shall be m'ade by executors or 
 administrators by the increase, nor shall they sus- 
 tain any loss by the decrease, without their fault, 
 of any part of the estate ; but they shall account 
 for such increase, and shall be allowed for such 
 decrease on the settlement of their accounts." 
 
 [The inventory is not conclusive evidence, against 
 the executor, of what the assets consist of, and 
 their value, although it is prima fade evidence 
 against him on the accounting before the surrogate. 
 He is not "precluded from showing that assets in- 
 ventoried, did not belong to the estate, or that the 
 estate was of less value than stated in the inven- 
 tory. Sjss&roMC^ V. fias6r(wtc^, 24 How.,24. Where 
 the executor or administrator mixes up the trust 
 funds with his own, or neglects to pay regular 
 accounts of investments, and of the interest re- 
 ceived on such funds, he is chargable with interest, 
 as if the trust fund had been kept invested upon 
 interest, payable periodically. Spear v. Tinhham, 
 2 Barb. Ch. Eep., 211. Jacot^. Emmett, 11 Paige, 
 142.] 
 
 Executors and administrators cannojt charge for 
 their services, by the day or in gross, but can only 
 charge' the legal commissions and their just ex- 
 penses ; the commissions being the pay for their 
 
106 EXECUTOR'S AND ADMINISTRATOR'S GUIDE. 
 
 services. Thus, he cannot charge for the hire of 
 a horse when he drives his own, although he may- 
 charge for such hire when actually paid, or fare 
 paid in a public conveyance. He cannot charge 
 for board, when he dines at home or with a friend, 
 although he may charge for board actually paid, 
 when from home on the business of the estate. 
 
 As has been seen above, any person interested 
 may contest the account. The contestant may 
 allege that the executor or administrator has not 
 accounted for all that has been received by him, 
 specifying the articles not accounted for, or he may 
 allege when the inventory is accounted for, that 
 the inventory was not complete, and specify what 
 was omitted. In these cases, the contestant has 
 the burden of proof, and the executor or adminis- 
 trator may introduce counter proofs. (2 Brad., 
 165.) Or the contestant may allege that certain 
 payments charged in the account were not made, 
 or that not so much was paid as charged, specify- 
 ing in wtat instances. The executor or adminis- 
 trator must then produce the vouchers for such 
 payments, which are conclusive evidence of pay- 
 ments unless successfully impeached by the con- 
 testant. (1 Brad., 265.) - 
 
 The contestant may further allege, that the pro- 
 perty charged as lost, was lost through default of 
 the executor or administrator ; or that claims of 
 the deceased, charged as bad and not collectable, 
 
FINAL SETTLEMENT AND COMMISSIONS. 107 
 
 were good. The law- presumes that an executor 
 or administrator does his duty, and to charge him 
 for a default, the contestant must prove the default 
 to the satisfaction of the surrogate ; and when the 
 claims charged as bad and not collectable were in- 
 ventoried, as doubtful or bad, to charge the admi- 
 nistrator, the contestant must show that he knew 
 they were collectable and neglected the collection ; 
 but where the claim was inventoried as good, the 
 executor or administrator charging it as bad, must 
 prove it to be so. (See form objections. Appendix.) 
 
 This proof may be, that the debtor had been 
 commonly reputed to be insolvent for a length of 
 time; thathe has actually taken the benefit of an in- 
 solvent act ; or that executions have been returned 
 unsatisfied against him. 
 
 [Where the affidavit annexed to the account of 
 the executor is full and clear as to payments, and 
 the items of disbursements, under twenty dollars, 
 do not exceed in the aggregate five hundred dollars, 
 and the payment of sums over that amount are 
 supported by vouchers, it is for the party who ob- 
 jects to the account to falsify and sustain it, in 
 the form of distinct and specific allegations, with 
 proof thereof Metzger v. Metzger, 1 Brad., 265 ; 
 2 Brad., 220.J 
 
 But where there is no inventory, the whole 
 estate is considered good and collectable, and the 
 
108 EXECUTOR'S AND ADMINISTRATOR'S GUIDE. 
 
 executor or administrator charging any of the 
 claims as bad, must prove the fact. 
 
 [In adjusting the accounts of executors and ad- 
 ministrators, the surrogate's court is governed by 
 principles of eq^uity, as well as of law, and it is at 
 all flmes, competent for them, unimpeded by tech- 
 nical rules, to show the fairness of their dealings, 
 the real nature of their transactions and the amount 
 for which they should be held liable. Upson v. 
 Badeau, 3 Brad., 13.] 
 
 The hearing may be adjourned from time to 
 time, and the surrogate may appoint one or more 
 auditors to hear the matter and make a report, 
 subject to his confirmation. 
 
 The proof being closed, the surrogate decrees the 
 amount of the commissions upon the estate, which 
 are competent upon the aggregate sum received 
 and paid out by all the executors or administrators. 
 {Vdlentine y. Valentme, 2 Barb, ch., 430.) 
 
 The commissions and the distribution of them 
 are regulated by statute. (2 R. S., 93, as amended 
 by chap. 362 of Laws of 1863,) 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 respectively over and 
 above his or their expenses : 
 
 For receiving and paying out all sums of money 
 
FINAL SETTLEMENT AND COMMISSIONS. 109 
 
 not exceeding one thousand dollars, at the rate of 
 five dollars per cent. 
 
 For receiving and for pajdng out any sums, ex- 
 ceeding one thousand dollars and not amounting 
 to ten thousand dollars, at the rate of two dollars 
 and fifty cents per cent. 
 
 For all sums above ten 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. 
 
 But if the personal estate of the testator, or in- 
 testate, shall amount in value to not less than one 
 hundred thousand dollars, over and above all debts 
 and liabilities, of the testator or intestate, and there 
 shall be more than one executor or administrator, 
 then, instead of apportioning the compensation 
 hereinbefore mentioned, among such executors or 
 administrators, each and every of such executors or 
 administrators shall be entitled to and shall be 
 allowed, the full amount of compensation, to which 
 he would have been entitled, by the provisions of 
 this act if he had been sole executor or adminis- 
 trator ; provided however, that the whole amount 
 of the compensation of such executor or adminis- 
 trators' shall not exceed, what would be by* the 
 provisions thereof, paid to three executors or three 
 administrators; and that if there shall* be more 
 
110 EXECUTOR'S AND ADMINISTEAT-OE'S GUIDE. 
 
 than three executors or administrators, then what 
 could be the compensation of three executors or 
 three administrators, shall be divided among them, 
 all the executors or administrators in equal shares, 
 and there shall also be allowed, on each settlement, 
 such sums for counsel fee thereon, and preparing 
 therefor, as to said surrogate shall seem reasonable", 
 not exceeding the sum of ten dollars for each day 
 engaged therein." 
 
 The rule as to commissions, may be expressed 
 more shortly thus : Five per cent on all sums up 
 to one thousand dollars ; two' and a half per cent 
 on sums above one thousand dollars, up to nine 
 thousand, and one per cent on all above ten thou- 
 sand dollars. 
 
 Commissions are not allowed on articles specifi- 
 cally bequeathed; (Burtis v. Dodge, 1 Barb. Ch. 
 R., 77,) but when the executor or administrator 
 transfers stocks, notes, or bonds and mortgages, or 
 other property, to a legatee or one of the next of 
 kin, in payment of a general legacy or distributive 
 share, he may be allowed commissions on the 
 amount of them as money. And an executor or 
 administrator with the will annexed, acting as 
 trustee under the will in receiving and paying 
 out "the income of an investment, will be entitled 
 only to .the percentage ascertained b'y adding such 
 receipts k) the estate as accounted for. {Drake v. 
 Price, 5 N. Y., 430.) 
 
FINAL SETTLEMENT AND COMMISSIONS. Ill 
 
 [An attorney performing professional services, 
 is entitled also to his bill of ' costs, beyond com- 
 missions. Matter of Bcmh of "Niagara, 6 Paige, 213. 
 
 An executor cannot receive for his services, any 
 more than the statute commissions, however meri- 
 torious, or extraordinary, his services may be. 
 Collier V. Munn, 41 N. Y., 143. Commissions 
 are not charged upon the legacies, but are paid 
 put of the general estate. Westerfield v. Westerfield, 1 
 Brad., 198.] 
 
 At the final settlement, it may sometimes occur, 
 that part of the estate yet remains uncollected, or 
 there may remain unpaid, debts not yet due, for 
 which cases the statute provides as follows : (2 E. 
 S.,95.) 
 
 § 71. Whenever an account shall be rendered, 
 and finally settled, * * * * jf j^ shall appear to the 
 surrogate that any part of the estate remains to be 
 paid or distributed, he shall 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 deceased, according to their re- 
 spective rights. * * * 
 
 § 72. In such order, the surrogate may, upon 
 the assent, in writing of the parties, who shall have 
 appeared, direct the delivery of any personal pro- 
 perty, which shall not have been sold, and the 
 assignment of any mortgages, bonds, notes, or 
 
112 EXECUTOR'S AND ADMINISTRATOR'S GUIDE. 
 
 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 surroga^ shall appoint for that 
 purpose. 
 
 § 74. If upon the representation of an executor 
 administrator, or otherwise, it shall appear to the 
 surrogate, that any claim exists against the estate 
 of the deceased, which is not then due, or upon 
 which a suit is then pending, he shall allow a sum 
 sufficient to satisfy such claim, or the proportions 
 to which it may be entitled, to be retained for the 
 purpose of being applied to the payment of such 
 claim when due, or when recovered, or of being 
 distributed according to law. The sum so re- 
 tained, ftiay be left in the hands of the executor 
 or administrator, or may be directed by the surro- 
 gate to be deposited in some safe bank, to be. drawn 
 only on the order of the surrogate. 
 
 Having settled the account and decreed the com- 
 missions, the court will direct the distribution of 
 the balance remaining, among the creditors who 
 shall have proved their claiins, if there be any, and 
 the legatees or next of kin. See form. Decree Ap- 
 pendix. 
 
 The provisions of a will may be declared null 
 and void, on final accounting, where it was revoked 
 by a subsequent marriage, and although the will 
 
FINAL SETTLEMENT AND COMMISSIONS. • 113 
 
 had been proved, intestacy may be declared. Es- 
 tate of Ann Davis, 1 Tucker, 107.] 
 
 If there be enough of the estate, the creditors 
 will be paid in full, and if after paying them there 
 remains a surplus, it will be distributed according 
 to the will, or, if there be no will, among the next 
 of kin. 
 
 Interest will be computed on legacies from the 
 time when they became payable, either by the will 
 or by law ; but where a bequest is given to a widow 
 in lieu of dower, and she accepts the same, she 
 will be entitled to interest thereon from the death 
 of the testator. [Seymour v. Butter, 3 Brad., 193.) 
 
 And where a legacy is given to a minor child, 
 and no other provision is made for its support, in- 
 terest will be allowed from the death of the testa- 
 tor. {Lwptcm V. Lupton, 2 Johns. Ch., 628.) 
 
 Where a sum of money is bequeathed to execu- 
 tors to be put out at interest, and to pay over the 
 income, the person for whom, the provision is made 
 is entitled to interest on the same from the death 
 of the testator, provided a sufficient amount re- 
 mains, after deducting debts and other legacies. 
 
 The statute providing that no legacy shall be 
 paid until after the expiration of one year from 
 granting letters testamentary, unless the same. is 
 directed, by the will, to be sooner paid, does not 
 stand in the way of this principle. {Cooke v. 
 
114 EXECUTOR'S AND ADMINISTRATOR'S (JtriDE. 
 
 Meeker, 42 Barb., 533 ; Graig v. Craig, 2 Barb. 
 Ch. Kep., 105.) 
 
 The rulings as to the time when interest begins 
 to run, are not uniform. 
 
 Interest begins to run on general legacies, from 
 the period of one year from the issue of letters tes- 
 tamentary, unless a particular time is specified for 
 payment. [Matter of Finh's estate, 19 Abb., 209.) 
 
 Interest runs on a legacy from the period of one 
 year from the death of the testator, when no time 
 is fixed by the will for payment. Williamson v. 
 Williamson, 6 Paige, 293 ; Campbell v. Cowd/rey, 
 31 How., 172; Bradner v. Faulkner, 12 N. Y., 
 472, seems to hold that interest runs on legacies, 
 from the time they are legally payable, but the 
 point was not before the court, and the holding 
 was obiter dictvm. See Ca/mpbell v. Cowdrey, sv/p. 
 
 Distribution. 
 
 The statute of distribution in case of intestacy, 
 is as follows : 
 
 § 75. (2 R. S., 96; 3 R. S., 5th ed., 183.) " 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 sur- 
 plus remaining after the payment of debts and lega- 
 cies if not bequeathed, shall be distributed to the 
 
FINAL SETTLEMENT AND COMMISSIONS. 115 
 
 widow, children or next of kin of the deceased in 
 the manner following : 
 
 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. 
 
 " If there be no children nor any legal represent- 
 atives of them, then one moiety (that is one half), 
 of the whole surplus shall be allotted to the widow, 
 and the other moiety shall be distributed to the 
 next of kin of the deceased entitled under the pro- 
 visions of this section. 
 
 3. "Kthe deceased leave a widow, and no de- 
 scendant, parent, brother or sister, nephew or 
 niece, the widow shall be entitled to the whole sur- 
 plus ; 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 residue 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. "K there be no widow, then the whole sur- 
 plus shall be distributed equally to and among the 
 children and such as legally represent them. 
 
 5. "In case there be no widow and no children, 
 
116 EXECUTOR'S AND ADMINISTRATOR'S GUIDE. 
 
 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 repre- 
 sentatives. 
 
 6. "If the deceased shall leave no children, and 
 no representatives of them, and no father, and shall 
 leave a widow and a mother, the moiety not dis- 
 tributed to the widow shall be distributed in equal 
 shares to his mother and brothers and sisters, or 
 the representatives 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 chUd 
 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, sister, or representa- 
 tives of a brother or sister, the mother, if there be 
 a widow, shall take a moiety, and thS whole if 
 there be no widow. And if the deceased shall 
 have been illegitimate, 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 
 
PINAL SETTLEMENT AJSTD COMMISSIONS. 117 
 
 if the mother of such deceased be dead, the relatives 
 of the decease(^ 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 ad- 
 ministration in the same order. 
 
 9. " Where the descendants of 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. 
 
 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 shares to which the parent whom they 
 represent, if living, would have been entitled. 
 
 11. '' No regresentation shall be admitted among 
 collaterals after brothers' and sisters' children." 
 
 [As the statute of distributions says that no re- 
 presentative shall be admitted among collaterals, 
 after brothers and sisters children, it was held in 
 Pett V. Pett, 1 Salk. Kep., 250 ; 1. P. Wms., 25, that 
 a brother's grandchildren, could not share with 
 another brother's children, and therefore, if the 
 intestate's brother A, be dead, leaving only grand- 
 children ; and his brother B, be dead, leaving child- 
 ren, and his brother C, be Uving, the grandchildren, 
 
118 EXECUTOR'S AND ADMINISTRATOR'S GUIDE. 
 
 of A will have no share, and cannot take. One 
 half of the personal estate will go to the children 
 of B, and the other half to C. But if all the 
 brothers and sisters and their children be dead, 
 leaving children, those children cannot take hy 
 repre&entatvm, for it does not extend as far, but 
 they are- all next of hm, and in that character, 
 would take per cajpita. E«presentation in the 
 descending lineal line, proceeds on ad infinitwm. It 
 has also been decided that if the intestate leave no 
 wife, or child, brother or sister, but his next of kin 
 and an uncle, by his mother's side, and a son of a 
 deceased aunt, the uncle takes the whole, and the 
 representation is not carried down to the repre- 
 sentatives of the aunt. 2 Kent. Com., 424, 425. 
 
 Distribution is also made per capita, when the 
 distributees take equally, in their own right, or 
 per stirpes, when they take by way ^f representa- 
 tion. Thus, if the brothers and sisters of the de- 
 ceased, are all dead, all leaving children, entitled 
 to his estate, notwithstanding the families may be 
 unequal, in numbers, they will divide the estate 
 equally among them, or per capita. But if one 
 brother remain alive, and others have died, leav- 
 ing children, such children take per stirpes, or what 
 their parent would have been entitled to if living. 
 Williams on Exrs., 1299. 
 
 So that next of kin take per stirpes, or by repre- 
 
PINAL SETTLEMENT AND COMMISSIONS. 119 
 
 sentation, only when they stand in unequal de- 
 grees of kindred to the deceased. Where they 
 stand in equal degrees, as all Brothers, all children, 
 all grandchildren, they take each an equal share. 
 See also Matter of Burr, 2 Barb. Ch. R., 208.] 
 
 12. "Relatives of the halfblood, shall takeequally 
 with those of the whole blood in the same degree, 
 and representatives of such relatives shall take in 
 the same manner as the representatives of the 
 whole blood. 
 
 13. "Descendants and next of kin of the deceased 
 begotten before 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." 
 
 § 76. "If any child of such deceased person 
 shall have been advanced by the deceased, by set- 
 tlement 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 re- 
 main 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 distributed to ^uch child, as his share of 
 such surplus and advancement, then such child 
 and his des(?endants shall be excluded from any 
 share in the distribution of such surplus. 
 
 § 77. " But if such advancement be not equal to 
 
120 EXECUTOR'S AND ADMINISTRATOR'S GUIDE. 
 
 such amount, such child, or his descendants, shall 
 be entitled to receive so much only as shall be suffi- 
 cient to make all the shares qf all, the children, in 
 said surplus and advancement, to be equal as near 
 as can be estimated." 
 
 [Under a Massachusetts statute, similar to ours, 
 it has been held in two cases, Quarles v. Quarles, 
 4 Mass., 680, and Kenny v. Tucker, 8 Mass., 143, 
 that a release to the father of claims on distributive 
 share in expectancy, given in consideration of an 
 advancement, operates as a release, and is a bar to 
 claim on final settlement ; even when the amount 
 received for such release is less than the distribu- 
 tive share would be.] 
 
 § 78. The maintaining or educating or the giving 
 of money to a chUd, without a view to a portion 
 or settlement in life, shall not be deemed an ad- 
 vancement, within the meaning of the last two 
 sections ; nor shall those sections apply in any case 
 where there shall be any real estate, of the intes- 
 tate, to descend to the heirs. 
 
 § 79. The preceding provisions respecting the 
 distribution of estates, shall apply to the personal 
 estates of married women leaving descendants then 
 surviving ; and the husband of any such deceased 
 married woman, shall be entitled to the same dis- 
 tributive share in the personal estate of his wife, 
 to which a widow is entitled in the personal estate, 
 
PINAL SETTLKMBNT AND COMMISSIONS. 121 
 
 of her husband, by the provisions of this chapter, 
 and no more. (As amended by chap. 782, § 11 
 of laws of 1867.) 
 
 In Barnes Y. Underwood, 3 Lansing 526, it is held 
 that the amendment of 1 8 6 7, and the repeal of section 
 30, 2 R. S., 75, have deprived the husband of all 
 claims to the estate of his deceased wife, except 
 when she leaves descendants, in which case he 
 will take one third. But this case has been over- 
 ruled in the court of Appeals. 
 
 § 80. Where a distributive share is to be paid to 
 a minor, the surrogate may direct the same to be 
 paidto the general guardian of such minor, and to 
 applied to his support and education ; or he may 
 direct the same to be invested in permanent secu- 
 rities, as hereinbefore provided in respect to lega- 
 cies to minors, with the like authority to apply the 
 interest, and subject to the same obligations. 
 
 § 81. When administration is granted to any per- 
 son not the widow of, or next of kin to a deceased 
 person, and no one shall appear to claim the per- 
 sonal estate of the deceased, within two years after 
 such letters were granted, the surplus of such estate, 
 which would be distributed as aforesaid, shall be 
 paid into the treasury of this state, for the benefit 
 of those who may thereafter appear to be entitled 
 to the same. 
 
 The decree of the surrogate may be appealed from 
 at any time within three months, and until reversed 
 
122 EXECUTOR'S AND ADMINISTRATOR'S GUIDE. 
 
 on appeal, the final settlement and decree is con- 
 clusive as to the following facts against all persons 
 who have been duly cited. (2 E, S., 94, § 65; 3 E. 
 S., 5th ed., 181.) 
 
 [The decree is conclusive, only as to the points 
 stated in the statute and only upon those persons 
 properly served with the citation. The executor 
 or administrator, may, notwithstanding the settle- 
 ment, be charged with assets received by him 
 and not stated in the account, with debts collected 
 by him and not stated in the account, and with 
 interest on such items. He may also be charged 
 with assets, discovered for the first, after the settle- 
 ment, as to which his duties are unaltered by his 
 previous final settlement. Bank of Poughkeepsie, 
 V. EarhrousJc, 6 N. Y., 216.] 
 
 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 that were collectable on the 
 debts stated in the account, at the time of the set- 
 tlement thereof. 
 
 4. " That the allowances in such account for tha 
 
FINAL SETTLEMENT AND COMMISSIONS. 123 
 
 decrease in the value of any assets, and the charges 
 therein for the increase in such value were correctly 
 made." 
 
 § 1. (L. S., 1867, chap. 782.) The surrogate's 
 court, shall have power and jurisdiction to compel 
 testamentary trustees and guardians to render 
 accounts of their proceedings, in the same manner 
 as executors, administrators and guardians, ap- 
 pointed by such surrogates are now required to 
 account. 
 
 Or such a trustee may voluntarily apply for a 
 settlement and may have his account settled from 
 time to time, or finally settled in the same manner 
 as accounts of executors, as above. 
 
 For this purpose, a citation may issue on his 
 application, and on the hearing, all the proceed- 
 ings will be conducted in the same manner as on 
 the final settlement of the accounts of an executor 
 or administrator. The surrogate will make the 
 same allowances for commissions and expenses as 
 to executors. (Part 2, chap. 6, title 2, § 66, of 
 R. S., as amended by chap. 115 of Laws of 1866.) 
 
 When letters testamentary or of administration 
 to such trustee shall be revoked, or superseded, he 
 may be cited by the surrogate, at the instance of 
 his successor, and the proceedings will be the same 
 as in case of final settlement and an accounting by 
 executors. 
 
124 EXECUTOR'S AND ADMINISTBATOR'S GUIDE. 
 
 And in like manner, the surrogate may cite 
 an executor or administrator, whose letters have 
 T)een revoked, to account, up'on the application of 
 a new executor or administrator ; and if such new 
 executor or administrator neglect to make such 
 application, after a reasonable time any other per- 
 son interested may make it, and the surrogate wiU 
 hold him to an account in the same manner as if 
 eighteen months had elapsed. (S. L. 1837, chap. 
 4-60, amended by chap. 229, S. L., 1862.) 
 
 It seems that'the surrogate may also, in case one 
 of two or more executors is guilty of misconduct 
 in relation to the estate, interfere and compel him 
 to place the choses in action in his possession, be- 
 longing to the estate, in such custody as to enable 
 his coexecutors to obtain access to the same, and 
 may direct the mode in which he shall, cooperate 
 with his coexecutors in discharging his duties or 
 execution under the will. {Wood v. Brown, 34 
 N. Y., 337.) 
 
 The Decree may he made a lien on the Real Estate of 
 the Executor or administrator and collected hy 
 Execution. 
 
 § 63. (Chap. 461, Laws of 1837.) After any 
 decree is made by a surrogate, for the pajmaent of 
 money by an executor, administrator or guardian, 
 on application, he shall make out a certificate, 
 
FINAL SETTLEMENT AND COMMISSIONS. 125 
 
 stating the names of the parties against and in 
 favor of whom the decree is made, with the trade, 
 profession or occupation of the parties respectively, 
 and their places of residence, in which he shall state 
 the amount of debt and costs directed to be paid 
 by such decree. 
 
 § 64. On such certificate being filed with any 
 clerk of the Supreme Court (a county clerk), the 
 same shall be entered on the docket of the court, 
 and shall thenceforth be a Hen on all the lands, 
 tenements and real estate of every person against 
 whom such decree shall be entered, and execution 
 shall be issued thereon, in the same manner as 
 though the same was a judgment obtained in said 
 court. 
 
 § 65. If such execution be issued, and returned 
 unsatisfied, the surrogate shall on application, 
 assign the bond given by such executor, adminis- 
 trator or guardian, to the person in whose favor 
 such decree is made for the purpose of being prose- 
 cuted. 
 
 Attachment may Issue. 
 
 § 66. (Chap. 460, Laws of 1837.) Process of at- 
 tachment or other compulsory process authorized 
 by law, to enforce the order, process or decrees of 
 the surrogate's courts, may be issued by the surro- 
 gate of one county, to the officers required by law 
 
126 EXECUTOR'S ANB ADMINISTRATOR'S GUIDE. 
 
 to serve such process in any other county of the 
 state, when it may be necessary to serve th6 same ; 
 and the officer receiving the same shall have power 
 and authority to arrest the person or persons against 
 whom said process may be issued, and to convey 
 the person or persons so arrested to the county and 
 place where the writ may be returnable. 
 
 § 67. All attachments and other compulsory pro- 
 cess which may be issued by any surrogate, shall 
 be made returnable to the county where the same 
 may issue; * * *. For the purpose of ob- 
 taining the attatchment, a demand of payment 
 must first be made upon the executor or adminis- 
 trator personally, accompanied by the service of a 
 copy of the decree or order verified by the surro- 
 gate ; . should payment not be then made, the sur- 
 rogate upon proof by verified petition of the 
 neglect or refusal to pay, will issue an attachment 
 under his seal, directed to the sheriff" of the county 
 in which the delinquent resides, commanding him 
 to attach the person of the delinquent and bring 
 him before his court. On the return, the surro- 
 gate, if no satisfactory reason be rendered for the 
 non-payment, may commit the delinquent executor, 
 or administrator to the common jail to remain 
 until d^charged by the order of the same surro- 
 gate. [Seaman v. Duryea, 11 N. Y., 324 ; Est. of 
 John Woodhead, 1 Tucker 92. See forms attach- 
 ment etc., in Appendix.) % 
 
FINAL SETTLEMENT AND COMMISSIONS. 127 
 
 The Decree may he Discharged. 
 
 § 9. (S. L., 1867, chap. 782.) Any decree or 
 order of a surrogate for the' payment of moneys, 
 may be discharged by filing with him a release of. 
 the amount executed by the person to whom such 
 money is directed to be paid, and acknowledged, 
 or proven, as is now required as to a conveyance of 
 real estate;- and such surrogate, on filing such 
 release, shall indorse such discharge on the margin 
 of the record of such decree or order. When the 
 decree has been docketed in the office of any county 
 clerk, by the filing of the certificate of the surro- 
 gate, as to the decree, then on filing with the same 
 clerk, a certificate of the surrogate, of the discharge, 
 the clerk shall enter the discharge upon his docket. 
 (See form release in Appendix.) 
 
128 EXECUTOR'S AND ADMINISTRATOR'S GUIDE. 
 
 CHAPTER XV. 
 
 Of the Mortgage, Lease or Sale of the Eeal 
 Estate of a deceased Person for the Payment 
 OF HIS Debts. (2 R. S., 100.) 
 
 The real estate of tlie testator or intestate is 
 also, if necessary, to be applied, to the payment of 
 his debts, and the statute prescribes the manner of 
 converting it into money. 
 
 Executors or administrators may apply by peti- 
 tion to the surrogate for leave to mortgage, lease or 
 sell the Teal estate of the deceased, or to sell his 
 interest in any land held under a contract for the 
 purchase thereof, or so . much thereof as may be 
 necessary to pay his debts, at any time within three 
 years after the granting of letters, when they shall 
 discover that the personal estate is insufficient to pay 
 his debts. But before making this application, they 
 must file an inventory according to law. (S. L., 
 /837, chap. 60, § 40 j 3 R. g.,.5th ed., 187.) 
 
 But real estate, an heirs or devisee's title to 
 which has been divested, shall not be sold for debts ' 
 unless letters testamentary or of administration upon 
 the estate of said deceased shall have been applied for 
 within four years after his death, nor unless appli- 
 cation for such sale shall be made to the surrogate 
 
OP REAL ESTATE FOR PAYMENT OF DEBTS. 129 
 
 within three years after the granting of such letters ; 
 provided the surrogate of any county in this state 
 had jurisdiction to grant such letters. (S. L. 1869, 
 chap. 848.) 
 
 § 2. (2 E. S., 1€0 ; 3 R. S., 5th ed., 187.) " The 
 petition shall set forth : 
 
 1. " The amount of personal property which has 
 come to the hands of the executor or administrator. 
 
 [A statement of the total of the inventory, and 
 the total of the debts, held insufficient. Hill & D. 
 Swp., 260. 
 
 Where there was no personal estate, a sworn state- 
 ment, in the petition of that fact held to answer 
 the purpose of an inventory. Butler v. Emmet t, 8 
 Paige 12.] 
 
 2. " The appHcation thereof 
 
 3. " The debts outstanding against the testator 
 or intestate, as far as the same can be ascertained. 
 
 4. "A description of all the real estate of which 
 the testator or intestate died siezed, with the value 
 of the respective portions or lots, and whether oc- 
 cupied, or not, and if occupied, the names of the 
 occupants; and 
 
 5. " The names and ages of the devisees if any 
 and of the heirs of the deceased. 
 
 " And siich petition shall be verified by the oath 
 of the party presenting the same." (For form peti- 
 tion, see Appendix.) 
 
130 EXECUTOR'S AND ADMINISTRATOR'S GUIDE. 
 
 [All the executors, Or administrators, should 
 .join in the petition, or the reason why they do not 
 do so, should be fully stated in the petition. 
 Fitch V. Wiibeck, 2 Barb.Ch. Eep., 161. 
 
 K it shall appear from the petition that the per- 
 sonal estate of the deceased, applicable to that pur- 
 pose, has been applied to the payment of his debts, 
 or satisfactory evidence is offered that the executor 
 or administrator has proceeded with reasonable di- 
 ligence in converting the same into money, and 
 applying the same to the payment of his debts 
 (S. L. 1837, chap. 460, § 41 ; 3 R. S., 5th ed., 189), 
 and that it is insufficient for that purpose, and 
 that there are debts unpaid, the surrogate will 
 make an order, that all persons interested, appear 
 before him at a time and place therein specified, 
 not less than six, nor more than ten weeks from 
 the time of making such order, to show cause why 
 the necessary authority should not be given to the 
 executors or administrators appljring therefor, to 
 mortgage, lease or sell so much of the real estate 
 as may be necessary. (See order to show cause in 
 Appendix.) 
 
 A copy of this order shall be served personally, 
 on any person in the occupation of the premises, of 
 which a mortgage, lease or sale is desired, wherever 
 the same may be situated, and on such of the per- 
 sons interested, as widow, heirs or devisees, resid- 
 ing in the county of the surrogate, at least fourteen 
 
OF REAL ESTATE FOR PAYMENT OF DEBTS. 131 
 
 days before the day therein appointed for showing 
 cause; which service may be made personally, or 
 by leaving a copy at their residences with some 
 person of suitable age or discretion. 
 
 In the case of minors interested, the order to 
 show cause shall be served upon them in the same 
 manner as -citations to altered proof of a will (S. - 
 L., 1863, chap. 36, § 6), that is upon the minors 
 personally, and if the minors be under fourteen 
 years of age, then a copy shall also be delivered to 
 the parent, or guardian* of the minors, or to the 
 person in whose care the minor shall be. 
 
 It shall also be published for four weeks, imme- 
 diately previous to the return day, in a newspaper 
 printed in the county. 
 
 [If it does riot affirmatively appear that the order 
 directing all persons to show cause, was published as 
 directed by the statute, the surrogate's j urisdiction 
 is not made out. CorwinY. Merritt, 3 Barb., 341.] 
 
 If such personal service can not 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 before 
 the day for showing cause, or by publishing the 
 same, once in each week for four weeks in succes- 
 sion, in the state paper. If such devisees do not 
 reside in the state, or cannot be found therein, the 
 order shall be published once in each week, for six 
 
I 
 
 132 EXECUTOR'S AND ADMINISTRATOR'S GUIDE. 
 
 weeks successively, in the state paper, or a personal 
 service of forty days may be made in lieu thereof. 
 
 It is believed, that in all cases of publication, a 
 copy of the order should be mailed at least thirty 
 days before the day of showing cause, to the parties 
 intended to be served by the publications. 
 . The surrogate wUl, if the service of the order tp 
 show cause is complete, appoint a special guardian 
 for all minors, and on his appearance, will proceed 
 to hear the allegations and proofs of all parties, 
 and will adjourn from time to time, as may be 
 necessary. The executors or administrators may 
 be examined on oath, and witnesses may be exam- 
 ined by either party, and their attendance may be 
 compelled in the same manner as in case of prov- 
 ing wills. 
 
 Any person interested may contest the applica- 
 tion, and show that the executors or administra- 
 tors have not proceeded with reasonable diligence 
 in converting the personal estate into money and 
 paying the debts ; or that such personal estate is 
 sufficient to pay the debts ; and they may contest 
 the validity and legality of any debts, demands or 
 claims which may be represented as existing 
 against the deceased ; and may set up the statute of 
 limitations in bar of such claims. And the admis- 
 sion of any such claims, so barred, by any executor 
 or administrator, shall not be deemed to revive 
 
OP REAL ESTATE FOB PAYMENT OF DEBTS. 133 
 
 the same, so as in any way to affect the real estate 
 of the deceased. 
 
 Creditors may attend and present their claims, 
 and prove them before the surrogate, in the same 
 manner as in any other court. 
 
 It will be observed, that in all these proceedings, 
 there is no provision for notifying creditors of the 
 hearing before the surrogate, at which they may 
 present and prove their claims, except by adver- 
 tising ; but it is clearly the duty of the executors 
 or administrators to notify them personally, so far 
 as they are able, to the end that the proceeds may 
 be equitably distributed among all the creditors. 
 ^, ,The demands which the surrogate, on such hear- 
 ing, shall adjudge to be valid and subsisting against 
 the estate of the deceased, or which shall have been 
 determined to be valid by the circuit, or which 
 shall have been recovered against the executors or 
 administrators by the judgment of a court upon a 
 trial of the merits, shall be entered by him in the 
 book of his proceedings, fully and at large, and the 
 vouchers supporting the same shall be filed in his 
 ofiice. 
 
 § 14. (Page 102, 3 R. S., 5th ed., 189.) " The 
 surrogate shall make no order for the mortgaging, 
 leasing or sale of the real property of the deceased, 
 until, upon due examination, he shall be satisfied. 
 
 1. " That the executors or administrators have 
 
134 EXECUTOR'S AST) ADMINISTRATOR'S GUIDE. 
 
 fully complied with the preceding provisions of this 
 title (as set forth above) ; 
 
 2. " 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 such debts be secured 
 by a mortgage or charge on a portion of such es- 
 tate, then, that the remedies of the creditor by 
 virtue of such mortgage or charge have been ex- ■ 
 hausted ; 
 
 8. " That the personal estate of the deceased is 
 insufficient for the payment of such debts, and that 
 the whole of such estate, which could have been 
 applied to the payment of the debts of the deceased 
 has been duly applied for that purpose." But see 
 § 41 hereafter. 
 
 [The order for sale must not be made to pay 
 expenses of administration. Mtch v. Witbeck, 2 
 Barb. Ch. Rep., 161.J 
 
 § 15. .(Page 102. 3 E. S., 5th ed., 189.) The 
 surrogate, when so satisfied, shall, in the first place 
 inquire and ascertain whether sufficient moneys 
 for the payment of such debts can be raised by 
 mortgaging or leasing the real property of the de-. 
 ceased, or any part thereof; and if it shall appear 
 that such moneys can be so raised, advantageously 
 to the interest of such estate, he shall direct such 
 mortgage or lease to be made for that purpose; 
 
OF REAL ESTATE FOR PAYMENT OF DEBTS. 135 
 
 § 4. (S. L. 1837, ch. 460; 3 R. S., 5tlied., 189.) 
 The surrogate may, in his discretion, order such 
 mortgage, lease or sale to be made, although the 
 whole of the personal property of the deceased 
 which has come to the hands of the executor or 
 administrator, has not been applied to the payment 
 of debts. . 
 
 But the surrogate, before making any such order 
 shall have satisfactory evidence that the executor 
 or administrator has proceeded with reasonable 
 diligence in converting the personal property of the 
 deceased into money, and applying the same to the 
 payment of debts. (See order for sale in Appendix.) 
 
 § 16. (Page 103, 3 E. S., 5th ed., 190.) No 
 such lease shall be for a longer time than until the 
 youngest person interested in the real estate leased 
 shall become twenty-one years of age. 
 
 § 17. A lease or mortgage, executed under the 
 authority of the surrogate as aforesaid, shall be as 
 valid and effectual, and of the same effect, as if 
 executed by the testator or intestate, immediately 
 previous to his death. 
 
 § 18. If it shall appear to the surrogate that the 
 moneys required can not be raised by mortgage or 
 lease, advantageously to the estate, he shall from 
 time to time order a sale of so much of the real 
 estate, whereof the testator or intestate died seized, 
 as shall be suf&cient to paly the debts which the 
 
136 EXECUTOR'S AND ADMINISTRATOR'S GUIDE. 
 
 surrogate shall have entered in his books as vaUd 
 and subsisting. 
 
 § 19. If such real estate consist of houses or lots, 
 or of a farm, so situated that a part thereof can not 
 be sold without manifest prejudice to the heirs or 
 devisees, then the whole or a part thereof, although 
 more than may be necessary to pay auch 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. 
 
 § 20. The order shall specify the lands to be sold, 
 and the surrogate may therein direct the order in 
 which several tracts, lots or pieces shall be sold. 
 If it appears that any part of such real estate 
 has been devised, and not charged'in such devise 
 with the payment of debts, the surrogate shall 
 order that the part descended to heirs be sold before 
 that so devised ; and if it appear 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. 
 
 § 21. Before granting any order for the mort- 
 gaging or leasing any real estate, the surrogate 
 shall require from the executor or administrator 
 applying for the same, a bond to the people of this 
 
OF REAL ESTATE FOR PAYMENT OP DEBTS. 137 
 
 state, with sufficient sureties, to be approved by 
 the surrogate, in a penalty double the amount to 
 be raised by such mortgage 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. 
 
 § 22. Before granting any order for the sale of 
 any real estate, the surrogate shall require a bond 
 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 the moneys arising 
 , from such sale, after deducting the expenses thereof, 
 and will deliver 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. (See bond, in Appendix.) 
 
 [Where the proceeds are very large, security to 
 a limited amount beyond the fund is sufficient. 
 Holmes v. Cock, 2 Barb. Ch. Rep., 426.] 
 
 In case the executors or administrators neglect 
 or refuse within a reasonable time to execute any 
 such bond, the surrogate may appoint a disin- 
 terested freeholder to execute such mortgage or 
 lease, or make such sales, preferring in such ap- 
 
138 EXECUTOR'S AND ADMINISTRATOR'S GUIDE. 
 
 pointment a person nominated by the creditors. 
 Such freeholder shall give a bond in the same 
 manner as executors or administrators, and shall 
 possess like powers, and be subject to the same 
 responsibilities. 
 
 A notice of the sale shall be posted for six weeks 
 prior to such sale, in three of the most public 
 places in the town or ward where the sale shall be 
 had, and shall 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; in which notice the land and 
 tenements to be sold shall be described with common 
 certainty, by setting forth the number of the lots, 
 and the name or number of the township or town 
 in which they are situated ; if the premises cannot 
 be so described they shall be described in some 
 other appropriate manner, and in all cases the im- 
 provements thereon shall be stated. (See*notice 
 in Appendix.) 
 
 The sale shall be made in the county where the 
 premises are situated, at public vendue, between 
 the hour of nine in the morning and sunset. 
 
 [The administrator may, if he deems it beneficial 
 to the estate, sell in separate parcels, although the 
 order for sale described the property as a single 
 parcel. Delaplaine v. Lawrence, 3 N. Y., 801.] 
 
 And the purchaser should be required to pay on 
 his bid, a sum sufficient, at least, to pay the expenses 
 
OP REAL ESTATE FOK PAYMENT OP DEBTS. 139 
 
 of a new sale in case he should fail to fulfil the 
 terms and a new sale should be necessary. 
 
 The executor or administrator making such sales, 
 and the guardian of any minor heir or devisee of 
 the deceased, shall not directly or indirectly pur- 
 chase, or be interested in the purchase of any part 
 of the real estate sold, and all such sales shall be 
 void ; but a guardian may purchase for the benefit 
 of his ward. 
 
 The executor or administrator may give such 
 length of credit, not exceeding three years, for not 
 more than three fourths of the purchase money, as 
 shaU seem best calculated to p:^duce the highest 
 price, and as shall have been directed or shall be 
 approved by the surrogate, on the security of a 
 bond of the purchaser, and a mortgage of the pre- 
 mises sold. 
 
 The executor or administrator, or the freeholder 
 appointed, shall after sale, within twenty days, 
 make return of his proceedings, on oath, to. the sur- 
 rogate, (see report in Appendix,) who shall ex- 
 amine the proceedings, and may examine the par- 
 ties or any other person on oath ; and if he shall 
 be of opinion that the proceedings were unfair, or 
 that the sum bid was disproportionate to the value, 
 and that a sum exceeding such bid, at least ten per 
 cent, exclusive of the expenses of a new sale, may 
 be obtained, he shall vacate such sale and direct 
 another, of which notice shall be given, and the 
 
140 EXECTTTOR'S AND ADMINISTRATOR'S GUIDE. 
 
 sale shall be in all respects conducted as the sale oij 
 the first order. 
 
 [It is competent for the surrogate, to confirm 
 the sale in part, and vacate it in part. Delaplaine 
 V. Lawrence, 3 N. Y., 301.] 
 
 But if it shall appear 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 disproportionate, that a greater sum, as 
 above specified, cannot be obtained, he will make 
 an order confirming such sale, and direct convey- 
 ances to be executed, which shall convey the pro- 
 perty free from any claim of dower. (See order in 
 Appendix.) 
 
 [The purchaser will hold the crops growing on 
 the land when sold, although sown by the heirs, 
 or his tenant. Jewett v. Keenholtz, 16 Barb., 193.] 
 § 31. (Page 103.) " Such conveyances shall there- 
 upon be executed to the purchaser by the executors 
 or administrators, or by the person so appointed by 
 the surrogate to make the sale. They shall con- 
 taiin and set forth at large, the original order au- 
 thorizing a sale, and the order confirming the same 
 and directing the conveyance ; and they shall be 
 deemed to convey all the estate, right and interest 
 in the premises of the testator or intestate at the 
 time of his death, free and discharged from all 
 claims for dower of the widow of siich testator or 
 intestate. (See deed in Appendix.) 
 
OP REAL ESTATE FOE PAYMENT OF DEBTS. 141 
 
 § 36. "Every sale and conveyance made pursuant 
 to the provisions of this title, shall be 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." 
 
 § 1. (Chap. 81, Laws of 1850.) Every sale here- 
 tofore made or hereafter to be made, under any of 
 the provisions of the fourth title of chapter six, 
 second part of the Kevised Statutes, and of the 
 acts amending the same, or in addition the?eto, 
 shall be deemed and held to be as valid and effect- 
 ual, as if made by order of a court having original 
 general jurisdiction, and 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 any allegation of want 
 of jurisdiction, on the part of such surrogate ex- 
 cept in the manner and for the causes, that the 
 same could be impeached or inyalidated, in case 
 such sale had been made pursuant to the order of 
 the court of original general jurisdiction. 
 
 § 2. No such sale, under any of the provisions 
 of the fourth title, of chapter six, of part second, 
 of the Revised Statutes, and of the acts amending 
 the same shall be invalidated, nor in any wise 
 impeached, for any omission or defect in any 
 petition of any executor or administrator, under 
 
142 EXECUTOR'S AND ADMINISTRATOR'S GUIDE. 
 
 the provisions of such title and acts amending 
 the same, provided such petition shall substan- 
 tially show that an inventory has been filed, 
 and that there are debts, or is a debt, which the 
 personal estate is insufl&cient to discharge, and that 
 recourse is . necessary to the real estate, (or some 
 of it) whereof the deceased died, seized. 
 
 § 3. (As amended by chap. 260, of Laws of 
 1869, and chap. 92 of Laws of 'l872.) Nor shall 
 an;f such sale be invalidated, nor in any wise im- 
 peached by reason that any such petition was or 
 shall be presented by less than the whole number 
 of executors or administrators ; nor by reason that 
 after the filing of any such petition, any bond re- 
 quired by law, has been, or shall be given, by less 
 than the whole number of the executors or admin- 
 istrators, petitioning ; nor by reason that any fur- 
 ther proceeding, notice, sale, deed or return, has 
 been or shall be had, or made by less than the 
 whole number of executors or administrators, peti- 
 tioning; nor by reason of any omission to serve 
 upon any minor, heir or devisee, personally, or by 
 publication, a copy of the order to show cause re- 
 quired by the fifth section of the fourth title of 
 chapter six, part second of the Revised Statutes ; 
 proyided such order shall have been duly served 
 on the general guardian of the minor, or the guard- 
 ian appointed in such proceeding ; nor by reason 
 
OF REAL ESTATE FOR PAYMENT OF DEBTS. 143 
 
 of any irregularity in any mattef or proceeding, 
 after the presenting of any petition, and the giving 
 notice of the order to show cause why the autho- 
 rity or direction applied for, should not be granted, 
 and before the order confirming such sale; nor 
 after a lapse of five years from the time of such 
 sale, where the notice of such sale has been pub- 
 hshed for six weeks successively before the day of 
 such sale, although such publication may not have 
 been for the full period of forty-two days ; and in 
 all cases where the records of the ofiice of the sur- 
 rogate, before whom such proceedings were taken, 
 have been removed from the house, office, or other 
 building in which such proceedings were taken, to 
 another house, office or other buUding, after such 
 proceedings were taken, and the full period of 
 twenty-five years has elapsed since said sale, it 
 shall be presumed that guardians have beeii duly 
 appointed for all minor devisees of the real estate 
 sought to be sold in such proceeding, such presump- 
 tion to be rebutted only by record evidence in such 
 office showing affirmatively that such guardian or 
 guardians were not appointed ; provided, that no- 
 thing in this act contained shall be construed to 
 affect in any manner any suit or proceeding already 
 commenced for the recovery of any lands or the 
 proceeds thereofy. sold under or by virtue of any 
 ordgr of a surrogate's court. 
 
144 BXECUTOE'S AND ADMINISTRATOR'S GUIDK. 
 
 § 4. This act' shall not be construed as author- 
 izing any surrogate, or ofl&cer performing the duties 
 of the ofl&ce of surrogate, to make any order for the 
 sale of the real property of a deceased person, or 
 to confirm such sale, unless, upon due examina- 
 tion, he shall be satisfied, that the provisions of 
 said title have been complied with, as if this act 
 had not been passed. 
 
 [This act throws upon the party seeking to im- 
 peach a sale of real estate, under the order of a 
 surrogate, the whole burden of proof; and if he 
 fails to show a want of jurisdiction in the surro- 
 gate, to make the cirder, the law presumes that it 
 was properly made. Wood v. Mb Ghesney, 40 Barb., 
 417.] 
 
 The executors or administrators shall, immedi- 
 ately, within twenty days after receiving such 
 moneys or securities, pay to the surrogate any 
 moneys received on such sale, and any securities 
 taken by them shall be delivered in like manner to 
 him, to be collected and applied; and the surrogate 
 may compel such payment and delivery in the same 
 manner, by attachment or suit on the bond filed, as 
 if such real estate had been originally personal 
 estate in the hands of such executors or adminis- 
 trators. 
 
 § 1. (S. L. 1850, ch. 162 ; 3 R. S., 5th ed., 193.) 
 " Whenever an order has been or shall be mad^p by 
 
OF REAL ESTATE FOR PAYMENT OF DEBTS. 145 
 
 a surrogate for the mortgage^ lease or sale of the 
 real estate of any deceased person, and the executor 
 or administrator, or other persons named therein 
 shall die or be removed, or shall be otherwise dis- 
 qualified from executing the same while the same 
 order remains unexecuted in whole or in part, the 
 proceedings in relation thereto shall be in no wise 
 affected by such death, removal or disqualification ; 
 and it shall be lawful for the surrogate of the county, 
 by whom said order was made, to authorize the ad- 
 ministrator, to whom letters of administration shall 
 have been issued, on the goods, chattels and credits 
 unadministered of said deceased, with the will an- 
 nexed,, or otherwise, or a disinterested freeholder, as 
 in the case of an original order, to execute said 
 order in the same manner and with the like effect 
 as if the said order had been executed by the exe- 
 cutor, administrator or other person originally 
 named therein ; provided that the administrator or 
 other person so to be authorized shall, before re- 
 ceiving such authority, give the like security as 
 would be required on the granting for an original 
 order for the mortgage, lease o* sale of any real 
 estate." 
 
 The compensation of the executor or adminis- 
 trator, or other person appointed to execute the 
 mortgage, lease or conveyance, is two dollars a day 
 for each day actually spent in the business, together 
 
 with his expenses; and the surrogate, from the 
 10 
 
146 EXECUTOR'S AND ADMINISTRATOR'S GUIDE. 
 
 moneys so paid to him, and from the collection of 
 the securities taken, will first pay the charges and 
 expenses of the executor, administrator or such 
 other person appointed. He shall next satisfy any 
 claim of dower which the widow of the testator or 
 intestate may have upon the lands so sold, by the 
 payment of such sum, in gross, as shall be dpemed, 
 upon the principle of law applicable to annuities, 
 a reasonable satisfaction of such claim, if the widow 
 shall consent to accept such sum in lieu of her 
 dower, by an instrument under seal, duly acknow- 
 ledged or proved, and filed with^the surrogate. 
 
 But if she shall not, after reasonable notice for 
 that purpose, file such consent, then the surrogate 
 shall set apart one-third of the purchase money to 
 satisfy such claim. (See notice to widow and re- 
 lease of dower in the Appendix.) 
 
 [He shall set apart, one-third of the whole pur- 
 chase money, without first deducting the expense 
 of sale. Highie v. Westlake, 14 N. Y., 281.] 
 
 And he shall cause the same to be invested in per- 
 manent securities on annual interest in his name 
 of oflSce, which interest shall be paid to such claim- 
 ant during life. At her decease, such sum shall 
 be collected and distributed among the creditors, 
 if necessary to satisfy their claims, or if not so ne- 
 cessary, to the devisees or heirs of the testator or 
 intestate, or other persons claiming under them. 
 (See annuity table and rule. Appendix.) 
 
OF REAL ESTATE FOR PAYMENT OP DEBTS. 147 
 
 The surrogate will tlien advertise for six weeks 
 in a county paper, the time and place of making 
 distribution of the moneys, and on the day ap- 
 pointed will take proof as to claims not previously 
 proved before him, and any person interested as 
 creditor, heir or devisee, may attend and contest 
 any claim presented on any. legal grounds; and 
 witnesses may be compelled to attend and give 
 evidence. 
 
 If the executor or administrator, shall have paid 
 debts in the course of administration, beyond the 
 assets which came to his hands, he shall have the 
 right to be reimbursed on the sale of the real es- 
 tate, being considered the equitable assignee of the 
 claims so paid by him. {Livingston v. NewhirTc, 3 
 Johns. Ch., 318 ; and by S. L., 1863, chap. 400) 
 the surrogate shall pay any sum which may have 
 been found due to the executors or administrators, 
 upon the settlement of their accounts, after apply- 
 ing thereon the proceeds of the personal estate of 
 the testator or intestate from the residue, after 
 paying dower. , 
 
 If, after paying the expenses of the sale, and 
 satisfying the widow's claim of dower, there shall 
 not be sufficient to pay all the debts of the testator 
 or intestate, then the balance of the proceeds shall 
 be divided by the surrogate among the creditors 
 pro rata ; and he shall pay debts not yet due, as 
 other debts, deducting a rebate of legal interest 
 
148 EXECUTOR'S AND ADMINISTRATOR'S GUIDE. 
 
 upon such debts, for the time of the credit unex- 
 pired. 
 
 Any moneys which shall become due upon the 
 securities which shall have been taken on the sale, 
 shall be collected by the surrogate, and shall be 
 distributed by him among creditors in the same 
 manner as directed above. And if, after paying 
 all debts and expenses, there be any surplus, the 
 surrogate will pay and distribute it among the 
 heirs or devisees, or, in other words, among those 
 who have been entitled to the lands, if they had 
 not been sold for the payment of debts. 
 
 § 1. (S. L., 1850, ch. 150 ; 3 E. S., 5th ed., 195.) 
 " Whenever any portion of the surplus moneys 
 brought into the surrogate's office, as the proceeds 
 of the sale of real estate, shall belong to a minor, 
 or belong to any person who has a temporary in- 
 terest in the said moneys, and the reversionary 
 interest belongs to another person, the surrogate's 
 court shall make such order for the investment 
 thereof, and for the payment of the interest and 
 of the principal thereof as the Supreme Court is 
 authorized or required by law to make in anala 
 gous cases. 
 
 § 2. " The investments that shall be made by 
 virtue of this act, shall be secured by mortgage 
 upon unincumbered real estate within this state, 
 which shall be worth at least double the amount 
 of such investment, exclusive of buildings thereon, 
 
OP REAL ESTATE FOB PAYMENT OF DEBTS. 149 
 
 in the name of office of the surrogate, and he shall 
 keep the securities as he now is required by law 
 to keep other securities belonging to his office, and 
 the interest and principal shall be distributed by 
 and under the direction of the surrogate, in con- 
 formity to the order under which the investment 
 shall be made, and to the person or persons en- 
 titled thereto." 
 
 Surplus Moneys an Mortgage, or Judgment Sale in 
 certam Oases, to he paid to the Surrogate. 
 
 (Chap. 658, Laws of 1867). Whenever there 
 shall remain any surplus moneys, arising from the 
 sale of any lands or real estate, of which any de- 
 ceased person died seized, by virtue of any mort- 
 gage or other lien, given by, or obtained against 
 such person during his life, the person or corpora- 
 tion holding such surplus, shall pay it to the sur- 
 rogate of the county havingjurisdictionof the estate 
 of such deceased person, within thirty days after 
 the sale, and the surrogate's receipt shall discharge 
 the party receiving the surplus. • 
 
 The surrogate, on application of a creditor, or 
 the personal representatives of the deceased, shall 
 pay out the money in the same manner, and by 
 the same proceedings, as if the moneys arose from 
 the sale of the real estate of the deceased for the 
 payment of debts, under the order of the surrogate. 
 
150 EXECUTOR'S AND ADMINISTRATOR'S GUIDE. 
 
 CHAPTEE XVI. 
 
 A Creditor mat Compel the Executor or Admin- 
 istrator TO MbRTGAGE, LeASE OR SeLL THE EeAL 
 
 Estate op the Deceased to Pay Debts. 
 
 If, after an executor or administrator shall have 
 rendered an account, either voluntarily, on his 
 final settlement, or upon the order of the surrogate 
 on the application of a creditor, it shall appear that 
 there are not sufficient assets to pay the debts of 
 the deceased, any creditor whose debt is not secured 
 by a judgment, mortgage or other express charge 
 on the real estate, may apply to the surrogate for 
 an order, that the executor or administrator show 
 cause why he should not be required to mortgage, 
 lease or seU the real estate of the deceased for the 
 payment of his debts. 
 
 [But the rendering of an account by one of seve- 
 ral executors or administrators, is not enough to 
 authorize an application to the surrogate, by a judg- 
 ment creditor for an order to sell the real estate of 
 a deceased person. They are all bound to account, 
 and it is the duty of the creditor to compel them 
 to do so, before he has any right to call upon the 
 heir-at-law or devisee to pay a judgment against 
 
OF MORTGAGE, ETG., TO PAY DEBTS. 151 
 
 the executor or administrator. Sanford v. Granger, 
 12 Barb., 392. 
 
 The same rule would apply to any debt, sought 
 to be recovered in this way. 
 
 The surrogate may make the order of sale upon 
 the petition of the creditor, although all the ad- 
 ministrators have not united in making or return- 
 ing an inventory. Wood v. McGhesney, 40 Barb., 
 414.] . 
 
 This application may be made, notwithstanding 
 the lapse of three years from the granting of letters, 
 and it may be made by one who has obtained judg- 
 ment against an executor or administrator for a debt 
 against the deceased, and such judgment, after a 
 trial at law upon the merits, is prima facie evidence 
 of such debt before the surrogate. (S. L., 1837, ch. 
 460, § 72, amended 1843 and 1847; 3 E. S., 5th 
 ed., 196, (See petitions orders etc., in Appendix.) 
 
 Such order shall be served personally on the exe- 
 cutor or administrator to whom it shall be directed 
 at least fourteen days before the ^day therein ap- 
 pointed for showing cause ; and on that day the 
 executor or administrator may contest the right of 
 the applicant, and may show in bar, any legal de- 
 fence to his claim. t 
 
 But if no cause be shown to the contrary, the 
 surrogate will make a general order that all persons 
 interested show cause, as before directed, on appli- 
 
162 EXECUTOR'S AND ADMINISTRATOR'S GUIDE. 
 
 cation of the executor or administratorj which shall 
 be served on persons occupying the premises in 
 question, and all persons interested as widow, heirs 
 or devisees ; and he will cause special guardians, 
 to be appointed in the same manner for minors 
 interested. On the return day of such general 
 order, if the surrogate be satisfied of the matters 
 specified in the 17th section, quoted above, in re- 
 gard to the application by an executor or adminis- 
 trator, he will order such executor or administrator 
 to mortgage, lease or sell so much of the real es- 
 tate as shall be necessary to pay the debts esta- 
 blished before him. 
 
 Upon such order being granted and served on 
 the executor or administrator, he shall mortgage, 
 lease or sell as directed therein, in the same man- 
 ner as if such order had been granted on his own 
 application ; the like bond shall be executed ; the 
 like notice shall be given, and the same proceed- 
 ings had, in all respects, as before directed on the 
 application of an executor or administrator, and 
 the proceeds shall be returned to the surrogate in 
 like cases, and distributions shall be made in the 
 same manner. 
 
 If the executor or administrator neglect or refuse 
 to serve and publish the notice required, or to do 
 any other act necessary to authorize or carry into 
 effect an order for the mortgaging, leasing or sale 
 
OF MORTGAGE, ETC., TO PAY DEBTS. 153 
 
 of the real property of the deceased, the surrogate 
 may appoint a disinterested freeholder, who shall 
 proceed in the same manner as directed in respect 
 to such executor or administrator. (See forms, 
 Appendix.) 
 
 No suit shall be brought against the heirs, or 
 devisees of any real estate, in order to charge them 
 with the debts of the testator or intestate, within 
 three years from the time of granting letters testa- 
 mentary, or of administration upon the estate of 
 the testator or intestate. And if after the expira- 
 tion of that time, a suit shall be brought, it will be 
 stayed on proof that an application to mortgage, 
 
 ' lease or sell such real estate had been made before 
 the expiration of the three years ; or the plaintiflf, 
 after notice that such application has been made 
 may discontinue, his suit, and will be entitled to 
 distribution, as other creditors, on establishing his 
 claim before the surrogate. 
 
 The interest of the deceased in a contract for 
 the purchase of lands, whether he was original 
 purchaser, or held the contract by assignment, may 
 be sold on the application of the executor or ad- 
 ministrator, or a creditor, in the same cases, and in 
 the same manner as if he had died seized of such 
 lands, and the same proceedings may be had for 
 that, purpose as are directed above in respect to 
 lands. (2 R. S., Ill, amended 1847; 3 R. S., 
 5th ed., 199.) 
 
154 EXECUTOR'S AND ADMINISTRATOR'S GUIDE. 
 
 Such sales shall be made subject to all payments 
 thereafter to become due, and may be made sub- 
 ject to all payments due and unpaid, or to become 
 due. In either case, the sale will not be confirmed 
 by the surrogate, until the purchaser shall execute 
 a bond, with sureties to be approved by such sur- 
 rogate, in a penalty double the whole amount of 
 such payments yet to be paid on such contract, 
 conditioned that such purchaser will make all pay- 
 ments unpaid for such land, and will, fully and 
 amply indemnify the executors or administrators 
 of the deceased, and the heirs or devisees entitled, 
 against all demands, costs, charges and expenses, 
 by reason of any covenant or agreement contained 
 in such contract, or by reason of any covenant, 
 agreement 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. But if 
 there be no payments unpaid, or thereafter to be- 
 come due on account of such contract, nO bond 
 shall be required of the purchaser. 
 
 When the bond shall have been executed, or if 
 it shall not.be necessary as above, the surrogate 
 will direct an assignment, by the executor or ad- 
 ministrator, of the contract,to the purchaser, who 
 shall thereupon have all the rights which the de- 
 
OF MORTGAGE, ETC., TO PAY DEBTS. 155 
 
 ceased would have had, if living, in relation to the 
 contract and the lands contracted for.. 
 
 If a part of the lands so contracted for, may be 
 sold advantageously, and so that the proceeds of 
 such part will satisfy and discharge all the pay- 
 ments to be made for such land, according to the 
 contract, the surrogate may order such part only 
 to be soldi and in that case the purchaser shall not 
 be required to execute any bond. 
 
 The moneys arising from such sale shall be paid 
 to the surrogate, and shall be disposed of in the 
 same manner as directed in regard to proceeds of 
 lands sold ; but the claim of dower shall only ex- 
 tend to the annual interest, during the life of the 
 widow, upon one-third of the surplus of the moneys 
 arising from such sale, which shall remain after 
 paying all sums of money due from the deceased, 
 at the time of such sale, for the land so contracted 
 for and sold. 
 
 § 73. (2 R. S., 112 ; 3 R. S., 5th ed., 200.) " The 
 surrogate shall apply the residue of the moneys 
 arising from such sale, in the first instance, to the 
 payment of all sums of money then due from the 
 deceased to the vendor of the lands so contracted, 
 on account of such contract (when the lands are 
 sold subject only to payments thereafter to become 
 due), and shall then proceed to distribute the bal- 
 
156 EXECUTOE'S AND ADMINISTRATOR'S GUIDE. 
 
 ance among the creditors of the deceased in the 
 manner hereinbefore provided ; and if there be any 
 surplus after payment of debts and expenses, the 
 same shall be distributed among the persons who 
 would have been entitled to the interest of the de- 
 ceased in the lands sold if such sale had not been 
 made, or the person claiming under them, in pro- 
 portion to their respective rights in the premises 
 sold. 
 
 § 74. " Where a portion only of the land so con- 
 tracted is sold, the executor or administrator shall 
 execute a conveyance therefor to the purchaser, 
 which shall transfer to him all the right of the de- 
 ceased to the portion so sold, and all the right 
 which shall be acquired by the executor or admin- 
 istrator, or by the person 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 pur- 
 suant to the contract. 
 
 § 75. " Upon payment being made in full on a 
 contract for the purchase of land, a portion of which 
 shall have been sold according to the preceding 
 provisions, the executors or administrators of the 
 deceased shall have the same right to enforce the 
 performance of the contract which the deceased 
 would have had, if he had lived ; and any dedd 
 that shall be executed to them, shall be in trust. 
 
OF 1M0ETGAGE, ETC., TO PAY DEBTS. 157 
 
 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, except 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." 
 
158 EXBCUTOE'S AND ADMINISTRATOR'S GUIDE. 
 
 CHAPTER XVII. 
 
 Guardians and Wards. 
 
 Guardians are appointed to care for the persons 
 and estates of minors, that is, persons under the 
 age of twenty-one years, the minority of both males 
 and females alike ceasing at that age. They stand 
 in place of the father, and are amply empowered 
 by the statute, and protected in the honest exercise 
 of their duties. 
 
 They may be appointed by the father, by the Su- 
 preme Court, or by the surrogate. 
 
 §1. (Page 150; 3 R. S., 5th ed., 243.) "Every 
 father (whether of full age or a minor) of a child 
 likely to be born, or of any living child under the 
 age of twenty-one years and unmarried, may by his 
 deed or last will duly executed (with the consent of 
 the niother of such child, if living, signified in writ- 
 ing, S. L., 1862, ch. 172, § 6), dispose of the custody 
 and tuition of such child during its minority, or for 
 any less time, to any person or persons in posses- 
 sion or remainder." 
 
 Under the statute of 1862, above referred to, the 
 question must necessarily arise, as to the time when 
 the consent in writing of the mother shall be given. 
 
GUAEDIANS AND WARDS. 159 
 
 When the guardianship is created by the deed of 
 the father, such consent should, undoubtedly, be 
 endorsed upon that instrument. Where, however, 
 the guardian is appointed by will, a question arises 
 as to whether the consent should be made simulta- 
 neously with the execution of the will, or upon pre- 
 senting the same for proof. The first course presents 
 difficulties not easily obviated, for the father may 
 make his will far from home, or the. father and 
 mother may be separated. It is therefore suggested 
 that the proper course would be for the mother, if 
 she assents to the testamentary disposition of her 
 children, to file suclji consent with the surrogate 
 proving the will, and when she is the petitioner for 
 such proof, it may be incorporated in the petition 
 for the proof thereof. 
 
 The whole case is full of difficulties, and the 
 section referred to will require judicial interpie- 
 tation. The course suggested above -will, it is 
 thought, be safe. 
 
 § 2. " Every such disposition, from the time it 
 shall take effect, shall vest in the person or per- 
 sons to whom it shall be made, all the rights and 
 powers and subject him or them to all the duties 
 and obligations of a guardian of such minor, and 
 shall be valid and effectual against every other 
 person claiming the custody or tuition of such 
 minor, as guardian in socage or otherwise. 
 
160 EXECUTOR'S AND ADMINISTRATQE'S GUIDE. 
 
 § 3. " 118. Any person to whom the custody of 
 any minor is so disposed of, may take the custody 
 and tuition of such minor, and may maintain all 
 proper actions for the wrongful taking or detention 
 of the minor, and shall recover damages iu such 
 actions, for the benefit of his ward. 
 
 " He shall also take the custody and manage- 
 ment of the personal estate of such minor, and the 
 profits of his real estate during the time for which 
 such disposition shall have been made, and may 
 bring such actions in relation thereto, as a guar- 
 dian in socage might by law." 
 
 The guardians so appointed, are liable to be re- 
 moved for incompetency, irresponsibility, improvi- 
 dence or other good cause, by the Supreme Court, 
 which can also compel them to account from time 
 to time, and when' advisable, order them to give 
 security. It is optional, however, with, the persons 
 appointed by will, or the deed of the father, whether 
 they will accept the trust; but once having ac- 
 cepted it, they must continue until discharged by 
 the Supreme Court, or the lapse of time. Accept- 
 ance may be inferred from the acts of the guardian, 
 as transacting some business relating to the person 
 or estate of the ward, or assuming some control or 
 direction of the ward or his estate. 
 
 The Supreme Court will, upon petition, appoint 
 a guardian for a minor, and control him in the 
 
GUARDIANS AND WARDS. 161 
 
 exercise of his duties; will compel him to make 
 suitable provision for his ward, to account when 
 necessary, and remove him for cause, as in case of 
 a testamentary guardian ; will audit his final ac- 
 count, and discharge him from his trust. 
 
 [The guardian appointed by the Supreme Court, 
 continues until the majority of the infant, and is 
 not controlled by the election of the infant, when 
 he arrives at the age of fourteen years. Matter of 
 William Nicoll, 1 Johns. Ch. Rep., 25.] 
 
 The Supreme Court can appoint,, in a proper 
 case, a guardian for a minor whose father is living ; 
 the surrogate has no power in such a case. 
 
 We will consider the proceedings in relation ^to 
 the appointment by the surrogate. 
 
 § 4. (Page 150 ; 3 E. S., 5th ed., 243.) " If 
 no guardian for any such minor shall have been 
 appointed by the father, by a deed or will (with 
 the consent of the mother of such child, if Hving), 
 every such minor, of the age of fourteen years, 
 may apply by petition to the surrogate of the 
 county where the residence of s'uch minor may be, 
 for the appointment of such guardian as the minor 
 may nominate, subject to the approbation , of the 
 surrogate." 
 
 [The residence of a minor, is determined by the 
 residence of the parent ; if but one survive, then of 
 
 11 
 
162 EXECUTOR'S AND ADMINISTBATOE'S GUIDE. 
 
 that parent. Brown v. Lynch, 2 Brad., 214. Mat- 
 ter of Hughes infant, 1 Tucker, 38.] 
 
 The petition should state the age and residence 
 of the minor, and the name and residence of the 
 person nominated as guardian, and should be signed 
 by the minor. 
 
 There should also be appended a consent of the 
 person nominated to serve if appointed, and an 
 affidavit of some person acquainted with the facts, 
 that the petition is true, stating the amount of the 
 personal property of the minor, and the annual 
 value of the rents and profits of his real estate. 
 (See form, Appendix.) 
 
 § 5. " If such minor be under the age of fourteen 
 years, any relative, or other person in his behalf, 
 may apply to the surrogate of the county where 
 such minor shall reside, for the appointment of a 
 guardian of the minor, until he shall arrive at the 
 age of fourteen years, and until another guardian 
 shall be appointed. Upon the making of any such 
 application, the surrogate shall assign a day for the 
 hearing thereof, and shall direct such notice of the 
 hearing to be given to the relatives of the minor, 
 residing in the county, as he shall, on due inquiry, 
 think reasonable." (See notice in Appendix.) 
 
 The notice so given, shall be served on such 
 relatives only as the surrogate shall direct, and if 
 the surrogate is satisfied on the application, he will 
 
GUARDIANS AND WARDS. 163 
 
 assign the hearing for the same day, and proceed 
 with the appointment. {Wilcox v. Wilcox, 22 
 Barb., 178;) 
 
 The petition, in this case, should state the name, 
 age and residence of the minor ; the relationship, 
 if any, of the petitioner ; the amount of his per- 
 sonal property, and the annual value of the rents 
 and profits of his real estate ; and also the name, 
 relationship and residence of the person proposed 
 as guardian. It should be verified by the afl&davit 
 of the petitioner, and where a person other than 
 the petitioner is proposed, it should have a consent 
 to be appointed, appended. (See form, Appendix.) 
 
 § 7. (Page 151. 3 R. S., 5th ed., 244.) "The 
 surrogate to whom the application may be made, 
 under either of the preceding sections (§§4 ancj 5), 
 shall have the same power to allow and appoint 
 guardians as is possessed by the Supreme Court, and 
 in all cases he shall inquire into the circumstances 
 of the minor, and ascertain the amount of his per- 
 sonal property and the value of the rents and pro- 
 fits of his real estate ; and for that purpose (where 
 the petition is not satisfactory as to these points), 
 may compel any person to appear before him and 
 testify in relation thereto. 
 
 § 8. " Before appointing any person guardian of 
 a minor, the surrogate shall require of such person 
 a bond to the minor, with sufficient security, to be 
 
164 EXECUTOR'S AND ADMINISTRATOR'S GUIDE. 
 
 approved by him, 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 faithfully, 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 money 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. (See form. Appendix.) 
 
 § 9. " The bond so taken, shall be retained by the 
 surrogate among the papers of his office, and in 
 case of any breach of the condition thereof, may 
 be prosecuted in the name of the ward, although- 
 he may not have arrived at full age, by his next 
 friend or guardian, whenever the surrogate shall 
 direct. 
 
 § 10. " Every guardian so appointed by a surro- 
 gate, shall have the same power as a testamentary 
 guardian, and every person so appointed guardian 
 of a minor, under the age of fourteen years, shall 
 continue guardian of such minor, and shall be 
 responsible as such, notwithstanding the said minor 
 may arrive at the age of fourteen years, until 
 another guardian be appointed, or such first guard- 
 ian be discharged according to law." 
 
 But any minor who may have had a guardian 
 
GUARDIANS AND WARDS. 165 
 
 appointed by the surrogate before he arrived at the 
 age of fourteen years, may, on arriving at that age, 
 petition the surrogate for the allowance of another 
 guardian, and on proof of the facts, the surrogate 
 will make a new appointment accordingly. 
 
 We may here remark that, although guardians in 
 socage and other guardians, are • mentioned in the 
 statutes and in the books upon the subject, there 
 are virtually but two guardians, viz ; guardians ap- 
 pointed by the will or deed of the father, and 
 guardians appointed by the Supreme Court or the 
 surrogate, and the powers and duties of each of 
 them are the same. 
 
 The guardian is entitled to the custody and con- 
 trol of the person of his ward, to the same extent 
 as a father, under the supervision of the court, and 
 his duty is to attend to the proper care, nurture and 
 education of his ward, in a manner suitable to his 
 condition in life. He shall not permit him to re- 
 main in idleness, if able to earn his support by his 
 own industry, if he do so permit him, he will not 
 be allowed for his support in such idleness, but he 
 will be allowed the expenditures necessary to edu- 
 cate him for future usefulness, and his support 
 while so educating him. 
 
 \_GlaTkY. (7Zar^, 8 Paige, 152. Though a father 
 is liable for necessaries furnished to his child, with- 
 out his consent, because he is bound to support 
 
166 EXECUTOR'S AND ADMINISTRATOR'S GUIDE. 
 
 him and is entitled to his services, yet a guardian 
 is not so liable. . Gole v. Ward, 4 Watts & Serg., 
 118.] 
 
 In case the guardian abuse the' power he has 
 over the person of the ward, the court will interfere 
 and remove him, if necessary. 
 
 In relation to the personal estate, the power of 
 the guardian, and consequently his duty, extends 
 only to the collection and investment of it in good, 
 permanent securities, and the receipt and expendi- 
 ture of the income for the necessary care, nurture, 
 education and clothihg of his ward ; and for the 
 purpose of such collection, he may sell such per- 
 sonal property as he may think perishable, and for 
 the interest of the minor. {Field v. Shieffelm, 7 
 Johns. Ch., 150.) 
 
 This power and duty in regard to the real estate, 
 is to lease it and receive the rents and profits 
 thereof, and after paying the taxes aiid for the ne- 
 cessary repairs, to expend the surplus for his ward 
 as above, when necessary, or invest it and suffer it 
 to accumulate for his benefit. ( Oenet v. Tallmadge, 
 1 Johns. Ch., 561.) 
 
 It is his duty to lease it, if possible, and if he 
 willfully neglect to do so, or occupy it himself, he 
 will be accountable for the fair value of the rents 
 and profits. He can lease only for a period end- 
 ing with the minority of his ward. {Field v. 
 Schiffelin, 7 Johns., 154.) 
 
GUARDIANS AND WARDS. 167 
 
 He has no power to mortgage or sell the real 
 estate, but may make, as guardian, an application 
 to the Supreme Court (the infant if over fourteen 
 years of age joining therein) that a special guard- 
 ian be appointed to sell the real estate at any 
 time it may become necessary for the support, etc., 
 of his ward, or advisable for the reason that the 
 same is unproductive in proportion to its value, or 
 that it is depreciating in value ; and the court, if 
 satisfied of the propriety or necessity of the sale, 
 will allow it, and direct the least price at which it 
 may be sold. 
 
 And whenever it shall appear to the Supreme 
 Court, by due proof, or on the report of a referee 
 appointed for the purpose, that any infant holds 
 real estate in joint tenancy, or in common, or in 
 any other manner which would authorize his being 
 made a party to a suit in partition, and that the 
 interest of such infant requires that partition of 
 such estate should be made, such court may direct 
 and authorize the general guardian of such infant 
 to agree to a division thereof, or to a sale thereof, 
 or of such a part of the said estate, as in the opin- 
 ion of the court shall be incapable of division, or 
 as shall be most for the interest of the infant, to 
 be sold. 
 
 It is a sufficient ground for this last proceeding, 
 that the real estate is held jointly or in common 
 
16^ EXECUTOR'S AND ADMINISTRATOR'S GUIDE. 
 
 with adults, and that the value of the estate is 
 small in comparison with the expense of a partition 
 suit, to which it must otherwise be subjected. 
 
 But now, by Session Laws 1860, chap. 20, § 11, 
 the survivor of a husband or wife dying intestate, 
 after April 9, 1860, and before July 1, 1862, is 
 entitled to the whole of the rents and profits of the 
 real estate of the deceased, during the minority of 
 the youngest child, and consequently there can be 
 no partition or sale in such a case without the con- 
 sent of such survivor, until the majority of such 
 youngest child. But by S. L., 1862, ch. 172, the 
 above provision as to survivorship is repealed, to 
 take effect July 1, 1862. 
 
 § 20. (2 R. S., 152 ; 3 R. S., 5th ed., 245.) 
 "Every guardian in socage, and every general 
 guardian, whether testamentary or appointed, shall 
 safely keep the things that he may have in his 
 custody, belonging to his ward and the inheritance 
 (the real estate) of his ward, and shall not'make 
 or. suffer any waste, sale or destruction of such 
 things, or such inheritance, butshall keep up and sus- 
 tain the houses, gardens and other appurtenances 
 to the lands of his ward, by and with the issues 
 and profits thereof, or with such other moneys be- 
 longing 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 
 
GUARDIANS AND WARDS. 169 
 
 least, as such guardian received the same, inevita- 
 ble decay and injury only excepted ; and he shall 
 answer to his ward for the issues and profits of 
 real estate received by him, by a lawful account. 
 
 § 21. " If any guardian shall make or suffer any 
 waste, sale or destruction of the inheritance of his 
 ward, he shall lose the custody of the same, and of 
 such ward, and shall forfeit to the ward thrice the 
 sum at which the damages shall be taxed by the 
 jury." 
 
 But the guardian shall not be held to repair 
 from his own moneys, where the income of the 
 estate of his ward is insufficient, although such in- 
 sufficiency is a good ground for an application to 
 the Supreme Court for a sale. 
 
 The relation of the guardian to his ward is one 
 of confidence, and the guardian can not in any way 
 derive benefit from the funds or property of the 
 ward, beyond his fees. If he compromise a claim 
 against his ward, or purchase a debt against him at 
 a discount, it will be for the benefit of his ward 
 only. (2 Kents. Com., 229.) He cannot substitute 
 himself for his ward in any beneficial transaction, 
 although if he do so put himself in place of his 
 ward, and a loss accrue, he himself will have to 
 bear it. 
 
 If he purchase land in a sale where his ward is 
 interested, and take the conveyance to himself, his 
 
170 EXECUTOR'S AND ADMINISTRATOR'S GUIDE. 
 
 ward, on coming of age, may, if he so elect, claim 
 the benefit of the purchase. If he settle a debt 
 due to his ward and a promissory note, running to 
 himself, he will be held accountable for it, whether 
 it be collected or not ; otherwise, if he take the 
 note to himself as guardian. 
 
 If the guardian use the moneys of his ward in 
 trade, the ward may elect, on coming of age, to 
 take either the profits of the trade, or his money 
 with compound interest, to meet the profits. If he 
 neglect to invest the money of his ward after a 
 reasonable time (and he is usually allowed six 
 months), he must pay interest, and in case of gross 
 iieglect he will be charged compound interest. 
 
 [The proper rate of interest is six _per cent with 
 annual rents, adding to the principal at each rent. 
 King v. Talbot, 40, N. Y., 76 ; see also 2 "Wend., 
 77 ; 8 Barb., 48.J 
 
 He may not employ an agent or attorney, at the 
 expense ,of his ward, to do those acts which he 
 ought to do himself, such as the collection of rents, 
 &c. ; his commissions are for such services. If he 
 have his ward in his own family, he will be allowed 
 a reasonable sum for his board, if the ward does 
 not earn enough to remunerate him. (Bait v. 
 Bait, 1 Brad., 345.) 
 
 A guardian may not expend the capital of his 
 ward, but only the income, except under the direc- 
 
• GUARDIANS AND WARDS. 171 
 
 tion of the Supreme Court, which will, upon the 
 petition of the guardian, if considered necessary 
 and advisable for the interest of the minor, autho- 
 rize the guardian to expend so much as may be di- 
 rected, in support and educationj especially educa- 
 tion, wisely considering this in the highest degree 
 important. 
 
 A guardian, however, acting within the scope 
 of his powers, like an executor or administrator, is 
 bound only to fidelity and ordinary diligence and 
 prudence in the execution of his trust, and his acts, 
 in the absence of fraud, will be liberally construed. 
 White V. Parker, 8 Barb., 48.) 
 
 A guardian appointed in another state, can not 
 receive of an executor or administrator in this state, 
 a legacy or distributive share to his ward ; but, to 
 acquire the right, he must be appointed in this 
 state and give the proper security. And a guard- 
 ian appointed in this state, has no power over the 
 real estate of his ward situated in another state. 
 
 [Their rights and powers are strictly local, and 
 cannot be exercised in other states. Morrill v. 
 Dickey, 1 Johns. Ch., 156 ; Story Conf. Laws, 414. 
 Nor have they any authority over the real pro- 
 perty of their wards, situate in other countries ; 
 for such property is governed by the law rei sitce. 
 Story Ibid., 414, 417.] 
 # 
 
172 EXECUTOR'S AND ADMINISTRATOR'S GUIDE. 
 
 "We have already seen, that a legacy to a minor, 
 of fifty dollars or under, may be paid to his father, 
 for the use and benefit of sijch minor ; but when 
 the legacy exceeds that sum, the same may be 
 paid, under the direction of the surrogate, to the 
 general guardian, who must first give security to 
 the minor, to be approved by the surrogate, for ttie 
 faithful application of such legacy ; and this secu- 
 rity is additional to that previously given on the 
 appointment, unless that so previously given, was 
 estimated especially in view of the legacy. 
 
 When a distributive share is to be paid to a 
 minor, the surrogate may direct that it be paid 
 into court, and invested under his orders ; or he 
 may direct that it be paid to the general guardian. 
 A general guardian has the same powers in rela- 
 tion to the collection of a legacy or distributive 
 share by actions or proceedings before the surrogate, 
 that his ward would have if of full age. 
 
GUARDIANS, THEIR ACCOUNTS AND REMOVAL. 173 
 
 CHAPTER XVIII. 
 
 Accounts of Guardians. How Compelled to Ac- 
 count, AND HOW Removed, or Relieved of their 
 Trust. 
 
 Testamentary guardians, and those appointed 
 by the father by deed, or appointed by the Supreme 
 Court, are liable to account personally to their 
 wards, on their coming of age, or may be compelled 
 to do so by the Supreme Court, which on applica- 
 tion, will appoint a referee to hear and state the 
 account. It will compel the attendance of parties- 
 and witnesses, and, on receiving the report of the 
 referee, will conjfirm or modify it according to the 
 facts. 
 
 § 57. (S. L., 1837, ch. 46oV 3 R. S., 5th ed., 
 247.) " Every general guardian appointed by the 
 surrogate, shall, annually, after such appointment, 
 so long as any part of the estate or the income or 
 proceeds thereof remain in his hands or under his 
 control, file in the office of the surrogate appointing 
 him, an inventory and account, under oath, of his 
 guardianship, and of the amount of property re- 
 ceived by him and remaining in his hands, or in- 
 vested by him, and the manner and nature of such 
 investment, and his receipts and expenditures, in 
 
174 EXECUTOR'S AND ADMINISTRATOR'S GUIDE. 
 
 form of debtor, and creditor." (See form, Appen-. 
 dix.) 
 
 It is the duty of the surrogate to examine, in the- 
 month of February of each year, all such accounts 
 filed during the preceeding year, and, 
 
 §60. (S.L.,1837, ch. 460; 3 E. S., 5th ed., 248.) 
 " If, on such examination, the surrogate 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 inventory and account for three months 
 after the same should have been filed, such surro- 
 gate shall proceed against such guardiaij, and cite 
 him to show cause why he should not be removed." 
 But such surrogate may discontinue such proceed- 
 ings, on such guardian filing in his office an account 
 and inventory satisfactory to said surrogate, and 
 on payment of all costs which may have accrued 
 in consequence of such neglect. 
 
 §11. (2 R. S., 152; 3 R. S., 5th ed., 244.). Any 
 guardian appointed by any surrogate, may be cited 
 to account before the surrogate who appointed him 
 in the same manner as administrators, upon the 
 application of any ward, or any relative of such 
 ward, and, on good cause being shown, may be 
 compelled to account in the same mariner as an 
 administrator. And, upon a ward's arriving at 
 
GtrARDUNS, THEIR ACCOUNTS AND REMOVAL. 175 
 
 full age, he sliall be entitled to compel sucli account 
 without showing any cause. [Seaman v. Duryea, 
 11 N. Y., 324.) 
 
 § 12. Every guardian of a ward who shall have 
 arrived at full age, and every guardian who shall be 
 superseded in his trust by another guardian, may 
 apply to the surrogate who appointed him, for a 
 citation to his ward, or to such new guardian, to 
 attend the settlement of his accounts; which, cita- 
 tion shall be issued by such surrogate, and be served 
 in the manner and at the time herein directed (four- 
 teen days, personally) in the case of proceedings 
 for the removal of a guardian. 
 
 § 13. Appeals from the final order of the surro- 
 gate on the settlement of a guardian's account, may 
 be made to the Supreme Court, in the same manner 
 and time (three months), and with the same effect, 
 as in case of administrators." 
 
 Instead of procuring a citation in these cases, 
 the parties may voluntarily appear before the sur- 
 rogate, and proceedings will be had the same as on 
 the return of the citation. 
 
 The guardian shall file his account in full; 
 which should give dates and names of parties to 
 whom payments may have been made, and should 
 charge the guardian with the whole of the personal 
 property received by him, and with all interest 
 received or for which he is liable, for funds unin- 
 
176 EXECUTOR'S AND ADMINISTRATOR'S GUIDE. 
 
 vested after six months from tlie receipt of such 
 funds. It should also contain the reasonable ex- 
 penses of the guardian, which are regulated by the 
 some rule as the allowance for expenses of execu- 
 tors and administrators and his commissions. 
 
 [It was held Morgan v. Morgan, 39 Barb., that 
 a guardian performing services outside of his offi- 
 cial duties, for the benefit of his ward, as where he 
 personally made repairs on the real estate, bestow- 
 ing his personal labor, he was entitled, on settle- 
 ment, to a fair allowance for such services. 
 
 And in the case of an attorney who had per- 
 formed services for his ward, the Court of Chan- 
 cery, Matter of the Bank of Niagara, 6 Paige, 213, 
 decided that he was entitled to the costs of suits 
 prosecuted by him on behalf of the estate.] i 
 
 The commissions for receiving and paying out 
 moneys, are the same as allowed to executors, to 
 wit : five per cent on all sums up to one thousand 
 dollars ; two and a half per cent on sums above 
 one thousand dollars, up to ten thousand dollars, 
 and one per cent on all sums above ten thousand 
 dollars. 
 
 And in making his annual account, as well as 
 on settlement, the guardian may charge five per 
 cent or two and a half per cent, as the sums may 
 demand, on his receipts and disbursements for each 
 year. 
 
QUAEDUNS, THEIR ACCOUNTS AND REMOVAL. 177 
 
 [See Matter of Kellogg, 7 Paige, 265. But an 
 investment, or reinvestment of the fund from time 
 to time, is not such a paying out of the trust fund 
 as entitles the guardian to commissions for paying 
 out the same : nor is he entitled to charge a com- 
 mission for collecting or receiving back of the prin- 
 cipal of the fund which he has so invested. Ibid., 
 267.] 
 
 He should also file all vouchers received by him 
 and verify the whole by his oath ; and the account- 
 ing will be conducted, iii all respects, like an ac- 
 counting by executors or administrators, and may 
 be contested in the same manner. 
 
 The decree when paid, ' may be discharged by 
 the surrogate, on the filing of a release acknowledgeii 
 or proved, in manner provided for proof of deed. 
 (S. L., 1867, chap. 782, § 9.) 
 
 § 14. (Page 153.) " On the application of any 
 ward, or of any relative in his behalf, or of the 
 surety of a guardian, to the surrogate who ap- 
 pointed any guardian, complaining of .the incom- 
 petency of such guardian, or his wasting the real 
 or personal estate of his ward, or of any miscon- 
 duct in relation to his duties as guardian, or that 
 the guardian has removed, or is about to remove 
 from the state (S. L., 1837, ch.460, §45; 3 K. S.j 
 5th ed., 246, §23), the surrogate, upon being satis- 
 fied by proof of the probable truth of such com- 
 12 
 
178 EXECUTOE'S AND ADMINISTRATOR'S GUIDE. 
 
 plaint, shall issue a citation to such guardian, to 
 appear before him at the day and place therein 
 specified, to show cause why he should not be 
 removed from his guardianship. 
 
 [The insolvency of the guardian, or one of his 
 sureties, is cause for removal. Matter of Cooper, 2 
 Paige, 34. 
 
 Gross intemperance of the guardian, is also good 
 cause. Kettletas v. Gardner, 1 Paige, 488. The 
 guardian was removed for misconduct, in having 
 trusted his ward's money to his brother-in-law, 
 who fooled it away. Matter of Mary ONeil, 1 
 Tucker, 34. 
 
 " In case a woman marries, after being appointed 
 * * * guardian, the surrogate, on the application 
 of any party interested, shall have power to revoke 
 the appointment." S. L., 1837, chap. 460, § 34. 
 
 But this power will be used with care. Matter 
 of Mary Elgin, 1 Tucker, 97. See forms. Ap- 
 pendix.] 
 
 § 15. Such citation shall be served personally on 
 the guardian to whom it may be directed, at least 
 fourteen days before the return thereof; or if such 
 guardian shall have absconded or concealed him- 
 self, so that such citation can not be personally 
 served, it may be served by leaving a copy thereof 
 at the last place of residence of such guardian (or 
 if the . guardian has removed from the state, the 
 citation may be served by publishing the same in 
 
GUARDIANS, THEIR ACCOUNTS AND REMOVAL. 179 
 
 the state paper for four weeks.) (S. L., 1837, ch. 
 460, § 47 ; 3 R. S., 5th ed., 246, § 25.) 
 
 §•16. The surrogate, at the day appointed for 
 showing cause, and on such other days as he shall 
 appoint, shill proceed to inquire into the alleged 
 complaint, and shall grant suhpenas to compel the 
 attendance of witnesses to any person applying ; 
 and if satisfied of the incompetency or misconduct 
 of such guardian (or that he has removed or is 
 ahout to remove from this state), he may, by an 
 order to be duly entered in his minutes, remove 
 the said guardian from his trust. 
 
 § 17. Upon such removal being made, the surro- 
 gate may proceed and appoint a new guardian, in 
 the same manner as if no guardian had been ap- 
 pointed. 
 
 An appeal may be had from any order removing 
 a guardian, or appointing one, or refusing to make 
 a removal, within six months from the making of 
 such order, but no appeal will affect such order 
 until the same be reversed." 
 
 §46. (S. L., 1837, ch. 460; 3 E. S., 5th ed., 
 246.) " Whenever it shall be made to appear to 
 any surrogate that the sureties of any guardian 
 are becoming insolvent, that they have removed 
 or are about to remove from the state, or that for 
 any other cause they are insufficient, and he shall 
 be satisfied that the matter requires investigation, 
 
180 EXECUTOR'S AND ADMINISTRATOR'S GUIDE. 
 
 he shall issue a citation to such guardian, requir- 
 ing him to appear before such surrogate at the time 
 and place therein to be specified, to show cause 
 why he should not give further sureties, or be re- 
 moved from' his guardianship ; which citation shall 
 be served in the same manner as the citation men- . 
 tioned in the last preceding section (personally 
 fourteen days, or by leaving at his place of resi- 
 dence) is required by that 'section to be served. 
 
 § 47. " On the return of the citation, or at such 
 other time as the surrogate shall appoint, he shall 
 proceed to hear the proofs and allegations, and if 
 it shall satisfactorily appear that the sureties are 
 for any cause insufficient, the surrogate may make 
 an order requiring such guardian to give further 
 sureties, in the usual form, within a reasonable 
 time, to be prescribed by the surrogate. 
 
 § 48. "If such guardian neglect to give further 
 sureties to the satisfaction of the surrogate within 
 the time prescribed, the surrogate may, by an order 
 to be duly entered in his minutes, remove such 
 guardian from his trust." 
 
 Any person interested may appeal from any order 
 in these proceedings, within six months from the 
 making of the order, and the guardian so removed 
 may be required to account immediately, on the 
 application of the new guardian, the ward, or any 
 relative of the ward. 
 
GUARDIAN MAY RESIGN. 181 
 
 CHAPTER XVIII. 
 
 A Guardian mat for good Cause shown, be per- 
 mitted BY THE Surrogate to Resign his Trust. 
 
 He may show for such cause, his physical disa- 
 bility, arising from age or illness, his removal, ac- 
 tual or contemplated, to a distance from where the 
 property of his ward, is situated; the marriage of 
 his ward, if a female, or any other cause which 
 would render it for the interest of the infant that 
 he should resign ; and on presenting the petition to 
 the surrogate, setting forth the reasons why the 
 application is made, verifying the same by his own 
 oath or otherwise. (See forms of Appendix.) 
 
 §52. (S. L., 1837, chap. 460; 3 R. S., 5th ed., 
 247.) " Such surrogate, in his discretion, may 
 thereupon issue a citation to the ward, requiring him 
 to appear at a time and place to be therein men- 
 tioned, and show cause why the guardian should 
 not be be at liberty to resign his trust. The 
 citation shall be served by delivering a copy to the 
 ward, at least ten days before the return day 
 thereof. Notice of the proceedings shall also be 
 given to the next of kin of the ward, if there be 
 any of the age of discretion, in the county of the 
 surrogate. 
 
182 EXECUTOR'S AND ADMINISTRATOR'S GUIDE. 
 
 § 53. "On the return of the citation, and proof of 
 the service of the notice, the surrogate shall ap- 
 point some discreet and competent person to appear 
 and attend to the interests of the ward in the pre- 
 mises, who shall consent in writing to such 
 appointment. Any other person, who shall be de- 
 sirous to do so, may also appear on behalf of the 
 ward. 
 
 § 54. " The guardian shall then proceed to render 
 to the surrogate a full, just and true account in 
 writing of all his receipts and payments on account 
 of the ward, and of all 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 shall verify the same by his own 
 oath and such other evidence as shall be'^ satisfac- 
 tory to the surrogate. 
 
 § 55. " If the surrogate shall be satisfied that the 
 guardian has, in all respects, conducted himself 
 honestly in the execution of his trust ; that he has 
 rendered a just, true and full 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 the former guardian deliver over all the 
 books, papers, moneys, choses in action, or other 
 property of the ward, to such new guardian, and 
 take dupUcate receipts for the same. 
 
GUARDIAN MAY RESIGN. 183 
 
 § 56. "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, has been permitted to resign his 
 trust, and that he is thereupon discharged from 
 any further custody or care of the ward or of his 
 estate. But nothing therein contained shall pre- 
 clude the ward or his new guardian from haying 
 a further account from such former guardian, in 
 relation to all matters connected with his trust, 
 before he was permitted to resign the same ; and 
 in relation to all such matters, the sureties of the 
 former guardian shall remain liable in the same 
 manner and to the same extent as though such 
 order had not been made." 
 
184 EXECUTOR'S AND ADMINISTRATOR'S GUIDE. 
 
 CHAPTER XIX. 
 
 Dower of Widow, and how Admeasured. 
 
 Dower is the estate which the widow of a de- 
 ceased person takes in the lands of her husband, 
 being a life estate in one-third of the lands whereof 
 he was seized of an estate of inheritance at any- 
 time during the marriage. (1 R. S., 740; 3 R. S., 
 5th ed., 31.) 
 
 [Dower is spoken of by the ancient authorities 
 thus : There be three things favored of law ; life, 
 liberty, and dower, Co. Litt., 124, 6. That dower 
 is a legal, an equitable and moral right, favored 
 in a high degree by law, and next to life and 
 liberty, held sacred. Kennedy v. Nedrmjo, I.Dal., 
 417.] 
 
 And the widow of an alien entitled to hold real 
 estate, if she be an inhabitant of this state at the 
 time of his death, is entitled to dower in the same 
 naanner as if such alien had been a native citizen 
 (§ 9). Also any woman, being an alien, who has 
 heretofore married, or who may hereafter marry a 
 citizen of the United States, shall be entitled to 
 dower, within this state, to the same extent as if a 
 citizen of the United States. (S. L., 1845, ch. 115.) 
 
DOWER OP WIDOW. 185 
 
 The general rule given by the statute above 
 quoted, is, however, subject to some restrictions. 
 Thus, if a husband exchanges lands, the wife not 
 uniting in the conveyance completing the exchange, 
 she shall not be entitled to dower in both, but shall 
 make her election ; and if she shall not commence 
 proceedings to recover her dower in the lands 
 given in exchange, within one year after the death 
 of her husband, she shall be deemed to have elected 
 to take her dower in the lands received in exchange. 
 (1 R. S., 740 ; 3 R. S., 5th ed., 31 ; 7 Barb., 633 ; 
 42 Barb., 537.) And where a person mortgages 
 his lands before his marriage, his widow shall not 
 be entitled to dower, as against the mortgagee or 
 those claiming under him, but shall be entitled to 
 dower as against every other person. 
 
 When a husband alone executes a mortgage for 
 purchase money, his widow will not be entitled to 
 dower, as against the mortgagee or those claiming 
 under him, but shall be entitled, as against all 
 other persons ; and if the lands so mortgaged be 
 sold under such mortgage, the widow will be en- 
 titled to dower in any surplus remaining after pay- 
 ment of the mortgage, and the costs and expenses 
 of sale, and shall be entitled to the interest or in- 
 come of one-third of such surplus, during her life. 
 
 In case of divorce dissolving the marriage con-, 
 tract, for adultery of the wife, she shall not be 
 endowed. (1 R. S., 741.) 
 
186 EXECUTOE'S AND ADMINISTRATOR'S GUIDE. 
 
 A wife may cut off her inchoate dower, by unit- 
 ing in the conveyance of land with her husband 
 during the marriage, or, before her marriage, by 
 consenting to receive a settlement, either in lands 
 or money, as a jointure or provision in lieu of a 
 dower. If such settlement be made without her 
 assent, or a testamentary provision be made to 
 her, in lieu of dower, she shall have one year after 
 the death of her husband to elect whether, she will 
 take the settlement, or the provision of the will, 
 or her dower in the lands ; and if she do not com- 
 mence proceedings for the recovery of her dower 
 in the lands within one year, she will be deemed 
 to have accepted the settlement, or the testament- 
 ary provision in lieu thereof. (Id.) 
 
 [A petition filed by a widow, for admeasurement 
 of dower, is not the commencement of proceedings 
 for the recovery of dower, as contemplated by the 
 statute, and is not evidence of the election of a 
 widow to take dower instead of a testamentary 
 provision. Nor is a letter to the executors, that 
 she rejected the provisions of the will, and that she 
 did thereby " elect to claim dower," such an elec- 
 tion. John Walkyds estate, 1 Tucker, 10, 12.] 
 
 Where a widow is entitled to dower in her hus- 
 band's lands, and is not bound to elect whether to 
 take a settlement or tetamentary provisions in Heu 
 thereof, within one year after her husband's death. 
 
DO WEE OF WIDOW. 187 
 
 she may demand lier dower at any time within 
 twenty years after such death ; but, if at the time 
 of such death, she be under the age of twenty-one 
 years, or insane, or imprisoned on a criminal charge 
 or conviction, the time during which such disability 
 continues shall not form any part of the said term 
 of twenty years. And in case of recovery of her 
 dower, shall be entitled to receive damages for 
 withholding it, to the extent of one-third part of 
 the annual value of the mesne profits of the land, 
 for not exceeding six years. (1 E. S., 742 ; 3 R. 
 3., 5th ed.^ 33.) 
 
 A widow may bequeath the crop in the ground 
 of the landholden by her in dower (§25, 743), and 
 in default of any testaimentary disposition, it would 
 go to her administrator. 
 
 The dower interest of a widow may be ascer- 
 tained and admeasured, either by an action in the 
 Supreme Court, or by special proceedipgs upon the 
 petition of the widow, or heirs or persons claiming 
 under them, to the Supreme Court j or to the 
 County Court of the county where the lands are 
 situated, or to the surrogate of the same county. 
 When the lands are situated in the city of New 
 York, the proceedings may be had in the Court of 
 Common Pleas of that city,- and in the city of 
 Buffalo, in the Superior Court, when the premises 
 are situated in that city. 
 
188 EXBCUTOE'S AND ADMINISTRATOR'S GUJDE. 
 
 The Surrogate's Court is to be preferred, where- 
 all the lands in which dower is demanded, lie in 
 one county, from the fact the court is always open 
 and notice may be given for any day. Where, 
 however, the lands lie in different counties, and 
 dower is demanded in all, the proceedings must 
 be had in the Supreme Court. 
 
 The statutory provisions are as follows : 
 
 1. (§ 2 R. S.,488; 3 R. S., 5th ed., 791.) "Any 
 widow who shall not have her dower assigned to 
 her within forty days after the decease of her hus- 
 band, may apply for admeasurement of her dower 
 (to the courts specified above), specifying therein 
 the lands to which she claims dower." 
 
 [She may apply by petition, notwithstanding 
 a partition suit has been commenced of the pre- 
 mises, to which suit she is a party. Her title, after 
 admeasurement, is superior to that of the heirs of 
 her deceased husband ; and if she can secure ad- 
 measurement before decree of sale, she is entitled to 
 the fruits of her diligence. In re Achsah Sipperly, 
 44, Barb., 370.] 
 
 § 2. " A copy of such petition, with notice of the 
 time and place when it will be presented, shall be 
 served at least twenty days previous to its presenta- 
 tion, upon the heirs of her husband; or, if they 
 are not the owners of the lands subject to dower, 
 then upon the owners of such lands claiming a free- 
 
DOWER OF WIDOW. 189 
 
 hold estate therein, or their guardians, where such 
 heirs or owners are minors.- (See form, petition, 
 and notice, Appendix.) 
 
 § 3. " Such notice may be served personally, on 
 any party of full age ; or upon the guardians of 
 ■ minors ; or by leaving the same with any person 
 of proper age, at the last residence of such party 
 or guardian, in case of his temporary absence; and 
 if any such heir or owner be a resident out of this 
 state, the service of such notice 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. 
 
 § 4. " Where such heirs or owners are minors and 
 have no general guardians (within this state), the 
 court or surrogate, on application of the widow, 
 shall appoint some discreet and substantial free- 
 holder a guardian of such infants, for the sole pur- 
 pose of appearing for and taking care of the inter- 
 ests of such infants in the proceedings, and the 
 notice of application, and all notices in the sub- 
 sequent proceedings shall be served on the guard- 
 ian so appointed, whether the infant reside in the 
 state or not." 
 
 After the expiration of forty days from the death 
 of any husband, the heirs or owners, or the guard- 
 ian of any infant heir or owner, of real estate, may 
 
190 EXECUTOR'S AND ADMINISTRATOR'S GUIDE. 
 
 by a notice in writing, require tlie widow having 
 a claim of dower in euch real estate, to make de- 
 mand of her dower, within ninety days after ser- 
 vice of such notice ; and if she shall not make her 
 demand for her dower withjn the time specified in 
 such -notice, by commencing an action, or by an 
 application for admeasurement ; 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 hus- 
 band of such widow, or any of them, or the owners 
 of any lands subject to dower, claiming a freehold 
 interest therein, or the guardian of such heir or 
 owner, may apply, by petition, to the same courts 
 to which the widow might apply, for the admeasure- 
 ment of the said widow's dower of the lands of her 
 husband, or of such part thereof as shall be speci- 
 fied in4he said petition. 
 
 A copy of the petition, with a notice of the time 
 and place of presenting the same, shall be served 
 personally on such widow, twenty days previous 
 to its presentation. (2 R. S., 488 ; 3 R. S., 5th 
 ed., 791.) 
 
 § 9. (Id.) - "Upon application being made, either 
 by a widow or by any heir or owner, or by the 
 guardians of such heir or owner, the court to whom 
 the same shall be made may, upon hearing of the 
 parties, order that admeasurement be made of such 
 
DOWER OP WIDOW. 191 
 
 widow's dower, of all the lands of her husband, or 
 of such part thereof as shall have been specified in 
 the application." 
 
 The proofs on this hearing are, the seizing or 
 ownership of the husband, in the lands specified ; 
 which, when no opposition is made. Is evidenced 
 by possession with claims of title, and the marriage 
 of the deceased with the widow. 
 
 [Long continued cohabitation, until the -death of 
 the alleged husband, the woman being received- 
 and treated as his wife, is prima facie evidence 
 that a marriage had taken place. Young v. Foster, 
 U N. Y., 114.] 
 
 Where, however, the application is contested, it 
 will be necessary to prove in fuU the title of the 
 husband. 
 
 § 10. " Such court or surrogate shall thereupon 
 appoint three reputable and disinterested freehold- 
 ers, commissioners 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." 
 And the commissioners, before entering upon their 
 duties, shall subscribe an oath (or affirmation) that 
 they will faithfully, honestly and impartially dis- 
 charge the trust reposed in them by such appoint- 
 ment. 
 
 If any or either of the persons so appointed shall 
 die, resign or refuse to serve, others may be ap- 
 
192 EXECUTOR'S AND ADMINISTEATOK'S GUIDE. 
 
 pointed in their places by the court or surrogate, 
 and they shall take the same oath. 
 
 § 13. " The commissioners so appointed shall exe- 
 cute their duties as follows : 
 
 1. " They shall, if it be practicable, and in their 
 judgment for the best interests of all the parties 
 concerned, admeasure and lay off, 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. (As 
 amended, 1869, p. 960.) 
 
 2. " In making such admeasurement, they shall 
 take into view any permanent improvements made 
 upon the lands embraced in the 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 practi- 
 cable, shall award such improvements within that 
 part of the lands not alloted to such widows, and 
 if not practicable so to award the same, they shall 
 make a deduction from the lands allotted to such 
 widow, proportionate to the benefit she will derive 
 from such part of the said improvements as shall 
 be included in the portion assigned to her. • 
 
 3. " They shall make a full and ample report of 
 their proceedings, with the quantity, courses and 
 distances of the land admeasu<red and allotted by 
 
DOWER OF WIDOW. 193 
 
 them, to the widow, with a description of the posts, 
 stones and other permanent monuments thereof, 
 and the items of their charges, and in case it be 
 not practicable, nor in their judgment, for the best 
 interest of all parties concerned, to admeasure and 
 lay off the one-third part of the lands and premises 
 embraced in the order for their appointment, and 
 designate such part, with posts, stones or other 
 permanent monuments, then they so report ; and 
 also make full and ample report of- all the facts of 
 the case, to the court by which they were ap- 
 pointed, at the time specified in the order for their 
 appointment. (As amended S. L., 1869, chap. 433.) 
 4. " They may employ a surveyor with necessary 
 assistants,^ to aid them in such admeasurement. 
 (See form, report, Appendix.) 
 
 § 14. " The court or surrogate appointing such 
 commissioners, may, upon their application, or that 
 of either party, enlarge the time for making their 
 report, and may, by order, compel such report, or 
 discharge the commissioners neglecting to make the 
 same, and appoint others in their places." 
 
 Upon the coming in of the report, the court or 
 surrogate, may, for good cause shown, as manifest 
 injustice to either party, or for any cause which 
 would vitiate a report of a referee in the Supreme 
 Court, or a verdict of a jury, set aside the report 
 
 made, and appoint new commissioners, who shall 
 13 
 
194 BXECUTOE'S AND ADMINISTRATOR'S GUIDE. 
 
 proceed as if appointed in the first instance, or the 
 report and admeasurement may be confirmed. 
 
 But (chap. 433, Laws of 1869, §16), in case the 
 said commissioners shall report, that it is not prac- 
 ticable, or in their judgment, for the best interests 
 of all the parties concerned, that the one-third part 
 of the land or premises embraced in the order for 
 their appointment, be admeasured and laid off, 
 with posts, stones or other permanent monuments, 
 then the saidcourt or surrogate may, upon compe- 
 tent evidence being adduced, as to the net rental 
 value of such lands, or premises, order and decree 
 that a sum equal to one-third part of such net 
 rented value, be annually, or oftener, paid over to 
 such widow, during the term of her natural life, 
 as and for her dower, iu such lands or premises, 
 and such widow may sue for, recover and collect, 
 such sum, of and from the owner of such lands or 
 premises, and the payment thereof shall be a charge 
 upon such lands or premises, during the natural 
 life of such widow. If at any time, it shall appear 
 to. the Supreme Court, or to the County Court, of 
 the county in which such lands or premises are 
 situated, or to the surrogate of the same county, 
 upon the application of any party interested, that 
 the net rental value thereof has materially increased, 
 or diminished, such court or surrogate may, upon 
 a hearing of all proper parties, in interest, of which 
 
DOWER OF WIDOW. 195 
 
 they shall have had due and proper notice, order 
 and decree that such sum be correspondingly in- 
 creased or diminished. 
 
 An appeal may be brought to the Supreme Court, 
 within thirty days from th6 confirmation of the 
 report of 'the commissioners, and unless it is so 
 brought, the admeasurement shall be binding and 
 conclusive, as to the location and extent of the said 
 widow's right of dower, on the parties who. applied 
 for the same, and on all parties to whom notice 
 shall have. been given. But no person shall be 
 precluded thereby from controverting the right and 
 title of such widow to the dower so admeasured, 
 and the widow may bring an action of ejectment, 
 when she will be obliged to show the seizin of her 
 husband, her marriage and his death, and the de- 
 fendants may controvert those facts, and show any 
 other facts which could cut off the right of the 
 widow to "her dower. 
 
 Upon receiving or recovering possession of the 
 land so admeasured to her, such widow may hold 
 the same during her natural life; subject to the 
 payment of all taxes and charges accruing thereon 
 subsequent to her taking possession, and may 
 occupy or lease the same. 
 
 [She may bequeath the crops in the ground at 
 her decease. (1 R. S., 743.) Or, in default of a 
 
196 EXECUTOR'S AND ADMINISTRATOR'S (JUIDE. 
 
 testamentary disposition, they would go to her 
 administrator.] 
 
 The costs and expenses of the admeasurement, 
 taxed by the surrogate, or a judge of the court in 
 which the proceedings are had, shall be paid equally, 
 one-half by the widow, and one-half by the adverse 
 party. 
 
APPENDIX. 
 
 No. 1. 
 
 WILL. 
 
 The last will and testament of James Richards of the 
 town of Schodack in the county of Rensselaer, and 
 state of ]S"ew York : 
 
 I, James Richards of the town of Schodack, in the 
 county of Rensselaer, make and publish this my last 
 will and testament as follows : 
 
 I give and bequeath to my beloved wife Mary, the 
 sum of one thousand dollars, to be received and ac- 
 cepted by her in lieu of dower. I give to my son 
 James or his heirs five hundred dollars ; I give to my 
 daughter Mary wife of William Jones, or her heirs,' 
 five hundred dollars. 
 
 I give and devise to my son Henry and his heirs 
 forever, all my farm situate in said town of Schodack 
 on which I now reside, with the appurtenances, con- 
 taining about one hundred acres. 
 
 All the rest, residue and remainder of my estate real 
 and personal, I give, devise and bequeath to my child- 
 ren or their heirs, to be divided equally between them. 
 
 I appoint my son Henry executor of this my will, 
 revoking any former will by me made, and I authorize 
 and empower my said executor in settlement of my 
 
198 EXECUTOR'S AND ADMINISTRATOR'S GTHDE. 
 
 estate and of any debts due me, to compromise such 
 debts, and if he thinks it advantageous to my estate 
 to accept in satisfaction less than the full amount 
 thereof. 
 
 In witness whereof I have hereunto set my hand and 
 seal this twenty-second 'day of February, A. D. 
 1862. Jambs Eichakds, [l. s.] 
 
 The foregoing instrument was, at the date thereof, 
 subscribed by James Richards in our presence, and at 
 the same time he declared the said instrument to be 
 his last will and testament, and requested us to sign 
 our names as witnesses, which we do in his presence, 
 and in presence of each other. 
 AB, 
 
 Troy, Rensselaer Co., E". Y. 
 CD, 
 
 Troy, Rensselaer Co., H. Y. 
 
 Attestation clause when subscription is acknowledg&d. 
 The foregoing instrument was at the date thereof 
 declared to us by James Richards, the testator, therein 
 mentioned, to be his last will and testament; and he 
 at the same time acknowledged to us, and each of us, 
 that he had signed the same, and we at his request, 
 and in his presence, and in the presence of each other, 
 signed our names as witnesses. 
 AB, 
 
 Residing in Schodack, Rens. Co., N". Y. 
 CD, 
 
 Residing in Schodack, Reus. Co., N. Y. 
 
APPENDIX — FORMS. 199 
 
 No. 2. 
 
 CODICIL. 
 Whereas, I, James Richards, of the town of Scho- 
 dack, in the county of Rensselaer, have made my 
 last will and testament, bearing date the twenty-second 
 day of February, 1862, in and by which I have given 
 and bequeathed to my daughter Mary five hundred 
 dollars. !N"ow, therefor, I do, by this instrument, which 
 I hereby declare to be a codicil to my last will and 
 testament, and to be taken as a part thereof, order and 
 direct that only the sum of two hundred dollars be 
 paid to my said daughter Mary, in full of the legacy 
 given and bequeathed to her in my said last will and 
 testament. And it is my desire that this codicil be 
 annexed to and be made a part of my last will and 
 testament. 
 
 In witness whereof I have hereunto set my hand 
 and seal this first day of March, A.D. 1862. 
 Jambs Richards, [l. s.J 
 
 The foregoing instrument was at the date thereof sub- 
 scribed by James Richards in our presence, and he at the 
 same time declared said instrument to be a codicil to 
 his last will and testament, and requested us to sign 
 our names as witnesses, which we do in his presence, 
 and in the presence of each other. 
 AB, 
 
 Troy, Rens. Co., IST. Y. 
 CD, 
 
 Troy, Rens. Co., N. Y. 
 
200 EXECUTOR'S AND ADMINISTRATOR'S GUIDE, 
 
 No. 3. 
 EENUNOIATION OF EXECUTOR. 
 
 Surrogate's- Court, Rensselaer County . 
 
 In the matter of the last will and testa- 
 ment. 
 
 of 
 
 Thomas Williams, deceased. 
 
 I, Henry Williams, of the town of Brunswick in 
 said county of Kensselaer, one of the executors ap- 
 pointed in and by the last will and testament of Thomas 
 "Williams, late of said town, deceased, do thereby re 
 nounce the said appointment, and all right and claim 
 to letters testamentary of the said will, or to act as 
 
 exfecutor thereof. 
 
 Henry Williams. 
 
 Dated Troy, February 20, 1862. 
 
 Signed in the presence of 
 
 John Stiles, 
 James Johnson. 
 
 The signing may be proved by an affidavit of one of 
 the witnesses, or by acknowledgment as in the case of 
 deeds. 
 
APPENDIX — FORMS. 201 
 
 No. 4. 
 PETITION FOR PROOF OF WILL. 
 
 In the matter of proving the last will 
 and testament 
 
 of 
 
 Thomas Williams, deceased. 
 
 To Moses "Warren, Esq., Surrogate of the County of 
 Rensselaer : 
 
 The petition of Henry "Williams, of the town of 
 Brunswick in said county of Eensselaer, respectfully 
 shows : that he is one of the executors named in the 
 last will and testament of Thomas Williams, deceased ; 
 that said "Williams died from disease, on or about the 
 first day of January last, at said town of Brunswick, 
 which was the place of his residence at the time of bis 
 death ; that the instrument presented herewith, pur- 
 porting to be the last will and testament of the said 
 deceased, and bearing date the 25th day of December, 
 1859, your petitioner verily believes to be such last 
 will and testament, and that it relates to both personal 
 and real estate. And your petitioner further shows 
 that the said deceased left him surviving, his widow 
 Mary Williams, his children, your petitioner, and Sarah 
 Boyd, wife of John Boyd of the town of Brunswick 
 aforesaid, and his grandchildren, William Jones, Henry 
 Jones and Sarah Jones of the town of Randall, in the 
 county of Kenosha, in the state of Wisconsin, and 
 James Jones whose place of residence is unknown, and 
 
202 EXECUTOE'S AND ADMINISTRATOR'S GITIDB. 
 
 whicli can not, after diligent inquiry, be ascertained, 
 who are all and the only heirs-at-law and next .of kin 
 of the said deceased. 
 
 Your petitioner therefore prays that a citation may 
 issue to the said heirs at law and next of kin to the 
 deceased, requiring them to appear in this court at 
 such day as shall seem meet, to attend the probate of 
 said last will and testament according to law. 
 
 Dated Troy, February 22, 1862. 
 
 (Signed), Henry "Williams, 
 
 r,}'"' 
 
 State of ISTew York: 
 Bensselaer County, 
 Henry Williams being duly sworn, says that the 
 foregoing petition by him subscribed is true. 
 
 (Signed), Hbnkt "Williams. 
 
 Sworn before me, this 22d 1 
 day of February, 1862. / 
 
 Gboege Day, Com. of Deeds, 
 Troy, K Y. 
 
APPENDIX — FOEMS. 203 
 
 No. 5. 
 
 ORDER FOR CITATION. 
 
 At a Surrogate's court held in and for the county 
 
 of , at the , in 
 
 the ,of , on the 
 
 , day of ,187... 
 
 Present — Hon , Surrogate. 
 
 In the matter of the will 
 
 of 
 , deceased. 
 
 On reading and filing the petition of , 
 
 duly verified, propounding for probate a paper purport- 
 ing to be the last will and testament of , 
 
 late of the town of , deceased. 
 
 Ordered, that a citation issue to the proper persons, 
 pursuant to the prayer of the said petition, requiring 
 
 them to appear in this court, on the day of 
 
 , 1872, at ten o'clock, a.m;., to attend the 
 
 probate of said will. 
 
 ., Surrogate, 
 
 No. 6. 
 
 CITATION TO ATTEND PROOF OF WILL. 
 To Mary "WilUams, and Sarah Boyd, of the town of 
 Brunswick in the county of Rensselaer, and state of 
 
204 EXECUTOR'S AND ADMINISTRATOR'S GUIDE. 
 
 N"ew York, "William Jones, Henry Jones^j and Sarah 
 Jones, of this town of Randall, in the county of Ke- 
 nosha, in the state pi Wisconsin, and James Jones, 
 whose place of residence is unknown, and which can- 
 not after diligent inquiry be ascertained, heirs at law 
 and next of kin of Henry Williams, late of the town 
 of Brunswick, in the county of Rensselaer, deceased. 
 
 You and each of you are cited aud required to appear 
 at the office of our surrogate in the city of Troy, ip the 
 county of Rensselaer, on the tenth day of April, 1862, 
 at ten o'clock, a.m., of that day, to attend the probate 
 of the will of said deceased, which will then be offered, 
 for probate by Henry Williams, an executor named 
 therein, and which relates to both real and personal 
 estate. 
 
 In testimony whereof, we have caused the seal of 
 [l.s.] office of our said surrogate to be hereto affixed. 
 
 Witness, Moses Warren, Surrogate of the county of 
 Rensselaer, the twenty-second day of Febru- 
 ary, A.D., 1862. 
 
 Moses Wakrbn, Surrogate. 
 
 No. 7. 
 
 PEOOF Of SEKVICE OF CITATION. 
 
 Rensselaer county, ss : 
 
 Henry Williams of the town of Brunswick, in said 
 county, being duly sworn, says, that on the first day 
 
APPENDIX — FORMS. 205 
 
 of April, 1862, at said town of Brunswick, he served 
 the within citation on Mary Williams and Sarah Boyd, 
 therein named by delivering to, and leaving with each 
 a copy thereof; That at least thirty days before the 
 tenth day of April, 1862, he served the same on Wil- 
 liam Jones, Henry Jones and Sarah Jones, therein 
 named, by depositing copies thereof in the post office in 
 the city of Troy, in said county, each securely folded and 
 enclosed in an envelope, having therein a proper stamp 
 for the prepayment of the proper postage, directed to 
 each of them respectively at Randall, Kenosha county, 
 Wis. 
 
 [That at least fifteen days before the tenth day of 
 April, 1862, be served the same on Henry Jones and 
 Sarah Jones, therein named, who are minors, by deliv- 
 ering to each a copy thereof, in presence of John Jones, 
 their father, with whom they reside, in the town of 
 Eandall, Kenosha county, Wis., and at the same time 
 by delivering to said John Jones, a copy of said cita- 
 tion for each of said minors.] 
 
 Henry Williams. 
 
 Sworn before me this 10th ") 
 dayof April, 1872. J 
 
 Jambs Lansins, 
 Com'r of Deeds, Troy IST. T. 
 
206 EXECUTOR'S AND ADMINISTEATOE'S GUIDE. 
 
 No. 8. 
 
 CONSENT TO BE APPOINTED SPECIAL GUAEDIAN 
 FOE MINORS. 
 
 Surrogate's court, Rensselaer county. 
 
 In the matter of proving the last will 
 and testament. 
 
 of 
 Henry Williams deceased. 
 
 I, "William H. Tabor, of the city of Troy, do hereby con- 
 sent that I be appointed by the surrogate of the county 
 of Eensselaer, special guardian of "Henry Jones and 
 Sarah Jones, infant heirs-at-law and next of kin of 
 Henry Williams, late of the town of Brunswick, in 
 said county, deceased, for the sole purpose of taking 
 care of the interest of said infants in the matter of 
 proving the last will and testament of said deceased. 
 
 Dated Troy, April 10th, 1862. 
 
 Wm. H. Tabob. 
 
 No. 9. 
 ORDER APPOlNTINa SPECIAL GUARDIAN. 
 At a Surrogate's Court. 
 
 In the matter of proving the last will 
 and testament. 
 
 of 
 , deceased. 
 
 The citation in this matter having been returned 
 duly served, (or published' and served) according to 
 
APPENDIX — FORMS. 207 
 
 law, and it appearing by affidavit, that A B, C D, and 
 E F, named in said citation, heirs-at-law, and next of 
 kin of said deceased, are infants. 
 
 Ordered, that , of the city of Troy, 
 
 be, and he is hereby, appointed special guardian of 
 said infants, for the sole purpose of taking care of ,'the 
 interests of said infants in the matter of proving the 
 last will and testament ^f said deceased. 
 
 , Surrogate. 
 
 No. 10. 
 
 PETITION FOR LEAVE TO INTERVENE ON PROOF 
 OF WILL. 
 
 Surrogate's Court, Rensselaer County. 
 
 In the matter .of proving the will 
 
 of 
 
 deceased. 
 
 To Moses Warren Esq., Surrogate of the county of 
 Rensselaer : 
 
 The petition of , of the 
 
 in said county, respectfully shows. 
 
 That your petitioner is a legatee named in the will 
 
 of deceased, proceedings for the proof of 
 
 which are now pending in this court. That your pe- 
 titioner is not one of the heirs-at-Iaw or next of kin of 
 said deceased, and therefore has no standing in this 
 court in such proceeding, except by the leave of said 
 court. 
 
208 EXECUTOR'S AND ADMINISTRATOR'S GUIDE. 
 
 Tour petitioner's interest would be affected benefi- 
 cially by the proof of said will, and he therefore prays 
 leave to intervene in said proceedings and appear 
 therein, to the etid that he may care for his own 
 interest. 
 Dated Dec. 18, 1772. 
 
 (Signed), 
 
 Eensselaer county, ss. : 
 
 , being duly sworn, says that the 
 
 foregoing petition by him subscribed is true. 
 
 ■(Signed), 
 
 Sworn before me, etc. 
 
 No. 11. 
 
 OKDER THATPARTY MAY INTERVENE. 
 
 At a Surrogate's court held in and for the county 
 
 of .., at the , in 
 
 the of , on the 
 
 dayof ,187... 
 
 Present — , Surrogate. 
 
 In the matter of proving the will 
 
 of 
 , deceased. 
 
 On reading and filing the petition of , 
 
 from which it appears that said petitioner is a legatee 
 named in the will of said deceased, and not being one 
 
APPENDIX — FORMS. 209 
 
 of the heire-at-law or next of kin, of said.deceased, and 
 it appearing that said petitioner is interested in the 
 proof of said will. 
 
 Ordered that said have leave to inter- 
 vene in these proceedings, and appear therein, and 
 move in the matter as he shall he advised. 
 
 (Signed), 
 
 ., Surrogate. 
 
 No. 12. 
 DEPOSITION ON PKOOP OP WILL. 
 
 Surrogate's court, Eensselaer county. 
 
 In the matter of proving the last will 
 and testament 
 
 of 
 Henry Williams, deceased. 
 
 Eensselaer county, ss. : 
 
 A B and C D, of the town of Brunswick, in said 
 county, being severally sworn in open court, do each 
 depose and say, that he knew Henry Williams, l3,te of 
 the town of Brunswick, in the said county, deceased, 
 in his lifetime, and was present, and saw said Henry 
 Williams subscribe his name at the end of the instru- 
 ment in writing, now produced and shown to these 
 
 deponents, and bearing date the day of , 
 
 1862, purporting to be the last will and testament of 
 the said Henry Williams, deceased. That the said 
 
 Henry Williams, at the time he so subscribed his name 
 14 
 
210 EXECUTOR'S AND ADMINISTBATOB'S GUIDE. 
 
 as aforesaid, declared the said instrument to be his last 
 will and testament, and requested these deponents to 
 subscribe their names as witnesses to the execution 
 thereof, and that thereupon these deponents subscribed 
 their names as witnesses at the end of the said instru- 
 ment, in the presence of the said Henry Williams. 
 
 And the deponents further say that at the time the 
 said Henry Williams subscribed his name as aforesaid 
 he was a citizen of the United States, of fiiU age, of 
 sound mind and memory, in all respects competent to 
 devise real estate, and not under any restraint to the 
 knowledge of the deponents. 
 
 AB. 
 CD. 
 
 Subscribed and sworn before me, ^ 
 this 10th day of April, 1872. | 
 
 Moses Wakbbn, Surrogate. 
 
 No. 13. 
 
 OATH OP EXECUTOK. 
 
 State of New York, Rensselaer county, ss., : 
 
 I, Henry Williams, do swear that I will faithfully 
 and honestly discharge the duties of executor of the 
 last will and testament of Thomas Williams, deceased. 
 
 (Signed), 
 
 Henry Williams. 
 Subscribed and sworn before me, \ 
 
 this day of March, 1861. J 
 
 James Lansing, 
 Com'r. of Deeds, Troy, N. Y. 
 
APPENDIX — FOEMS. 211 
 
 No. 14. 
 OKDEE ADMITTING WILLS TO PROBATE. 
 At a Surrogate's court, held etc., 
 
 Present — Hon , Surrogate, 
 
 In the matter of proving the last will, 
 and testament. 
 
 of 
 , deceased. 
 
 On reading and filing due proof of the service of the 
 citation issued in this matter, and upon due proof of 
 the execution of the paper propounded as the last will 
 
 andtestanientof , late of the 
 
 of in said county deceased, bearing date the 
 
 day of , 1870, A B, and C D, 
 
 heirs-at-law and next of kin appearing in person and 
 A F, Q H, and A R, infants, heirs at law and next 
 
 of kin of said deceased appearing by , their 
 
 special guardian and it appearing by .such proof, that 
 the said will was duly executed ; that the testator at 
 the time of executing the same, was of full age for 
 making a will, was of sound mind and memory, and 
 not under restraint and in all respects competent to 
 devise real estate. 
 
 It is ordered, adjudged, and declared, that the said 
 paper purporting to be the last will and testament of the 
 
 said , deceased, was duly executed to 
 
 pass real and personal estate, and that the same with 
 the proofst hereof be recorded and admitted to probate 
 as a will of real and personal estate. 
 
 , Surrogate. 
 
212 EXECUTOR'S AND ADMINISTRATOR'S GUIDE. 
 
 No. 15. 
 
 OEDEK FOE ISSUE OP LETTERS TESTAMENTARY. 
 
 At the Surrogate's court,. held etc., 
 Present — Hon , Surrogate. 
 
 In the matter of proving the last will 
 and testament. 
 
 of 
 
 The last will and testament , having 
 
 been admitted to probate, on this day, and A B, exe- 
 cutor named therein having taken the oath required 
 by law ; ordered that letters testamentary issue to said 
 
 AB. 
 
 , Surrogate. 
 
 No. 16. 
 
 AFFIDAVIT OF INTENTION TO FILE OBJECTIONS, 
 TO THE GRANTING OF LETTERS TESTAMEN- 
 TARY. 
 
 Surrogate's court. County of Rensselar : 
 
 In the matter of the goods and chattels 
 
 of 
 
 Henry Williams deceased, 
 
 Rensselaer county, ss : 
 
 A B, of the town of Brunswick in said county, being 
 duly sworn, says : that he is a legatee named in the 
 will of Henry Williams late of said town of Brnns- 
 
APPENDIX— FORMS. 213 
 
 wick, deceased, ■whicli has been admitted to probate by 
 
 the surrogate of said county, in which C D is named 
 
 as executor; that deponent intends to file objections 
 
 against the granting of letters testamentary to said C 
 
 T> as executor, and he is advised and believes that 
 
 there are just and substantial objections to the granting 
 
 of such letters to said C D. 
 
 AB. 
 
 Sworn before me, etc. 
 
 No. 17. 
 
 OBJECTIONS TO THE ISSUE OE LETTEES. 
 Surrogate's court, Rensselaer county : 
 
 In the matter of tte goods and chattels 
 
 of 
 
 Henry Williams, deceased. 
 
 To the Surrogate of the county of Eensselaer : 
 
 The undersigned, a legatee (or creditor), of the above 
 named deceased, objects to the granting of letters tes- 
 tamentary to C D, executor named in said will, for the 
 following reasons : 
 
 First, That the said C D is incompetent to execute 
 the duties of such trust as an executor of said will by 
 reason of improvidence. 
 
 Second, That the said C D is incompetent to dis- 
 charge the duties of such trust, by reason of habitual 
 intemperance in the use of alcoholic liquors. 
 
214 EXECUTOR'S AND ADMINISTEATOE'S GUIDE. 
 
 Third, That the said C P is an alien, not being an 
 inhabitant of this state. 
 
 Fourth, That the said C D has been convicted of an 
 infamous crime, to wit, the crime of 
 
 Fifth, That the said C D's circumstances are so pre- 
 carious as not to afford adequate security for his proper 
 administration of the estate of the deceased. 
 
 Sixth, That the said C D is unable to read and write 
 the English language. 
 
 (Signed), A B. 
 
 Dated, April 10, 1862. 
 
 No. 18. 
 OKDEE FOR CITAJTION ON PILING OBJECTIONS. 
 
 At a Surrogate's court, held etc., 
 
 Present — Hon , Surrogate. 
 
 In the matter of the will 
 of 
 
 On reading and filing the objections of , 
 
 to the granting of letters testamentary to , 
 
 executor named in the will of said deceased. 
 
 Ordered, that the said ., appear before 
 
 the surrogate at his office in the city of Troy on the 
 
 day of , 1872, at ten o'clock in the 
 
 forenoon, to answer concerning the matter. 
 
 Sufrogaie. 
 
APPENDIX — FORMS. 215 
 
 No. 19. 
 
 PETITION THAT THE EXECUTOR NAMED BE SUM- 
 MONED TO ACCEPT OE RENOUNCE. 
 
 Surrogate's court, Rensselaer county. 
 
 In the matter of the goods and 
 
 chattels of 
 
 John Doe, deceased. 
 
 To the Surrogate of the county of Eensselaer : 
 
 The petition of A B, respectfully shows, that your 
 petitioner' is one of the legatees named in the will of 
 John Doe, deceased, (or, a creditor of the above named 
 
 deceased), who died on or about the ^ayof 
 
 , 1872, as your petitioner is informed and 
 
 believes, having, first made his last will and testament, 
 
 which was on the day of , 1872, duly 
 
 proved in this court. That one C D is named, as an exe- 
 cutor in said will, and has not renounced, and has hitherto 
 neglected to take the oath required by law, and receive 
 letters testamentary, notwithstanding that more than 
 thirty days have elapsed since said will was admitted 
 to probate as aforesaid. Wherefore, your petitioner 
 prays that a summons issue to said C D requiring 
 him according to law, to appear and qualify, as such 
 executor, within a certain time in said summons limited, 
 or that he be deemed to have renounced the appoint- 
 ment as executor in said will. 
 
 Dated Dec. 13, 1872. 
 
 AB. 
 
216 EXECtTTOR'S AISJ) ADMINISTRATOR'S GUIDE. 
 
 Rensselaer county, ss : ' 
 
 -A B, being duly sworn, says that the foregoing 
 petition by him subscribed is true. 
 
 AB. 
 
 Sworn before me, this "I 
 13th Dec. 1872. / 
 
 Jambs Lansing, 
 Com'r, of Deeds, Troy, IST. Y. 
 
 No. 20. 
 SUMMONS TO EXECUTOK. 
 
 The people of the state of I^ew York : 
 
 To A B, named as executor of the last will 
 
 [l. s.] and testament of , deceased. 
 
 Greeting : 
 You are hereby summoned, personally, to be and 
 
 appear before our surrogate of our county of. , 
 
 on, or before the day of ,next, atten 
 
 o'clock in the forenoon, at the office of the surrogate 
 
 in the , of in said county, to take 
 
 the oath of office, as executor of the last will and testa- 
 ment of the said deceased, and receive letters testa- 
 mentary thereon, or in default thereof, you will be 
 deemed to have renounced the appointment as such 
 executor. 
 
 Witness , surrogate, and the se^l of our 
 
 said court, this ...... day of 1872. 
 
 , Surrogate. 
 
APPENDIX— FORMS. 217 
 
 No. 21. 
 
 ORDEB THAT EXECUTOR BE DEEMED TO HAVE 
 BENOUNCED. 
 
 At a surrogate's court, held etc., 
 Present — Hon. . . ^ , Surrogate. 
 
 In the matter of tlie will 
 
 of 
 , deceased. 
 
 On filing the summons heretofore issued in this 
 
 matter, upon the petition of , returnable 
 
 here this day, and, due proof of the due service thereof, 
 on A B, executor named in the will of Said deceased, 
 and the said A B having neglected to appear, and 
 take the oath as required in said summons. It is 
 ordered and adjudged that the said A B, by reason of 
 such neglect, has, and is to be deemed to have re- 
 nounced the appointment as executor as aforesaid. 
 
 , Surrogate. 
 
 No. 22. 
 
 APPLICATION TO BEMOVE AN EXECUTOB AFTEB 
 QUALIFICATION. 
 
 To Hon. Moses Warren, Surrogate of the County of 
 Rensselaer : 
 
 The petition of , a legatee, named in 
 
 the will of , deceased , respectfully shows : 
 
218 EXECtI TOE'S AND ADMINISTRATOR'S GUIDE. 
 
 That said , lately died, having first 
 
 duly made and published his last will and testament, 
 in which among other things, he bequeathed to your 
 petitioner, a legacy of dollars, and ap- 
 pointed ,, executor in said will. That 
 
 said will was duly proved in the surrogate's court of 
 the said county of Rensselafer, and letters testamentary 
 
 were thereupon issuedto the said , by the 
 
 surrogate of said county, on the day of , 
 
 1862, as by the record thereof, will more fully appear, 
 
 and said , has taken upon himself the 
 
 administration of the estate of said deceased, and 
 has possessed himself of the personal property of said 
 deceased, to a very considerable amount, as your peti- 
 tioner is informed and believes. 
 
 And your petitioner further says, that the said 
 
 , is in such precarious circumstances as 
 
 not to ajSbrd adequate security for his due administra- 
 tion of the said estate (or other cause of complaint). 
 
 Your petitioner therefore prays, that the said 
 
 may be superseded ; or for such other relief in the 
 premises as the nature of the case may require. 
 
 Dated December 13th, 1871. 
 
 (Sighed), 
 
 Rensselaer county, bs : 
 
 , being duly sworn, says that the fore- 
 going petition, by him subscribed, is true. 
 
 Sworn etc. 
 
 (Signed), 
 
APPENDIX — FOBMS. 219 
 
 No. 23. 
 
 ORDER FOR CITATION TO EXECUTOR TO SHOW 
 CAUSE WHY HE SHOULD NOT BE SUPERSEDED. 
 
 At etc., (as in iN'o. 9). 
 
 Present — Hon , Surrogate. 
 
 In the matter oi, the application 
 
 of , for citation 
 
 against , executor, 
 
 etc. 
 
 of 
 
 , deceased. 
 
 On reading and filing the petition of , 
 
 duly verified, showing that {giving cause), and praying 
 
 that the said , be superseded as such 
 
 executor. 
 
 Ordered that a citation issue to the said , 
 
 requiring him to appear in this court, on the day 
 
 of , next, at ten o'clock in the forenoon, 
 
 to show cause why he should not be superseded, as 
 such executor ; and to abide such T)rder as shall be 
 made in the premises. • 
 
 , Surrogate, 
 
220 EXECITTOE'S AND ADMINISTEATOB'S GUIDE. 
 
 No. 24. 
 OEDBR SUPERSEDINa EXECUTORS. 
 At, etc., (as in case l^o. 9). 
 
 Present — Hon , Surrogate. 
 
 In the matter of the application 
 
 of, , for citation 
 
 against , executor, 
 
 etc. 
 
 of 
 , deceased. 
 
 On filing the citation heretofore issued in this 
 
 matter, and due proof of the service thereof on 
 
 ahd having heard the proofs and allegations of the 
 
 petitioner and said and it appearing to the 
 
 court that the said , has become incompe- 
 tent by law to serve as such executor, by reason of 
 {slate reasons). 
 
 It is ordered and adjudged, that the letters testa- 
 mentary, heretofore issued to the said , on 
 
 the last will and testament of , deceased, 
 
 be, and are hereby superseded. 
 
 , Surrogate, 
 
APPENDIX — FORMS. 221 
 
 No. 25. 
 
 ALLEGATIONS TO CONTEST PEOB ATE, WITHIN ONE 
 
 YEAK. 
 
 Surrogate's court. 
 
 In the matter of the will. 
 
 of 
 
 John Doe deceased. 
 
 To the surrogate of the County of Eensselaer : 
 
 A B, one of the next of kin of John Doe, late of the 
 town of l^assau, in said county, deceased, alleges that 
 
 heretofore on or about the day of , 
 
 1871, and within one year from the exhibiting hereof, 
 a certain instrument in writing was admitted to pro- 
 bate by the surrogate of the county of Rensselaer, as 
 and for the last will and testament of said John Doe, 
 deceased, and letters testamentary thereon, were after- 
 wards issued by said surrogate to D J B, executrix, 
 named in said supposed will. And that A B, C D, 
 E F, are named as legatees in said will and reside in 
 the state of New York. 
 
 And the said A B further alleges _ 
 
 First. That the said John Doe did not sign said sup- 
 posed will. 
 
 Second. That the witnesses to said supposed will did 
 not sign the same. 
 
 Third. That the said will was not published as by 
 law required, nor did the said John Doe request the 
 witnesses thereto to sign the same as witnesses. 
 
222 EXECUTOR'S AND ADMINISTEATOE'S GUIDE. 
 
 Fourth. That at the time of the execution of the 
 said supposed will, the said John Doe was not of 
 sound mind and memory, hut of unsound mind and 
 memory, and was incapable of making a valid will. 
 
 Fifth. That the proof heretofore presented to said 
 surrogate, was uncertain and not competent to establish 
 the due execution thereof, and the competency of the 
 said John Doe. 
 
 The said A B therefore prays that a citation may 
 be issued to the said D J B, executrix, and the said 
 (legatees resident in this state), requiring them to ap- 
 pear before the surrogate at a time and place to be 
 - therein fixed, to show cause why the probate of the 
 said supposed will should not be revoked. 
 
 Dated Dec. 20, 1872. 
 
 (Signed), AB. 
 X Y, Proctor for said A B. 
 
 The above need not be verified. 
 
 No. 26. 
 OEDBE FOR CITATION ON FILING ALLEGATIONS. 
 At, etc., (as in ITo. 9). 
 
 Present — Hon , Surrogate. 
 
 In the matter of the will 
 
 of 
 
 John Doe, deceased. 
 
 On reading and filing the allegations of A B, claim- 
 ing that (setting forth the main allegations). 
 
APPENDIX — FORMS. 223 
 
 Ordered, that a citation issue to D, executor of 
 
 the will of said deceased, and to » 
 
 legatees named therein, resident in this state, requir- 
 ing them to appear in this court, on the day 
 
 of , 1872, to show cause why the probate 
 
 of said will should not be revoked. 
 
 , Surrogate. 
 
 No. 27. 
 OKDER FOR REVOCATION OF PROBATE. 
 At, etc., (as in ISo. 9).- 
 Present — Hon , Surrogate. 
 
 In the matter of the paper pur- 
 porting to be the will 
 
 of 
 John Doe, deceased. 
 
 A B having heretofore filed allegations against the 
 probate of the above mentioned paper, and a citation 
 having been issued to the executor and legatees named 
 .therein, and proofs having been offered in the matter 
 and the surrogate having deliberated therein, and it 
 appearing that the said John Doe, deceased, at the 
 time of the making of the instrument in writing, 
 
 admitted to probate in this court, on the day 
 
 of , 1871, as the last will and testament 
 
 of the said deceased, was not of sound mind, (or that 
 said will was not duly executed). 
 
224 EZECTJTOE'S AND ADMINISTEATOR'S GUIDE 
 
 It is ordered, adjudged and decreed, that the probate 
 heretofore granted by this court, on the said instru- 
 ment as, and for the last will and testament of the said 
 John Doe, deceased, be and the same is hereby annulled 
 and revoked. 
 
 It is further ordered that notice of this order be 
 
 served on ;...., executor, and be published 
 
 for three weeks successively, in a newspaper printed 
 in the said county of Rensselaer. 
 
 , Surrogate. 
 
 No. 28. 
 
 EENUNCIATION BY WIDOW, OE NEXT OF KIN. 
 Surrogate's court, Eensselaer county. 
 
 In the matter of the goods, etc., 
 
 of 
 
 James Murphy, deceased. 
 
 I, Mary Murphy of the city of Troy, in the county 
 of Eensselaer, widow of James Murphy, late of said 
 city, deceased, intestate, do hereby renounce all right 
 and claim to administration of the goods, chattels and 
 credits of said intestate. 
 
 Dated Troy, January 20, 1862. 
 
 (Signed), Mart Murpht. 
 
 Signed in presence of, 
 
 John Styles, 
 Henry Jones. 
 
 The execution in this case must be proved or ac- 
 knowledged. 
 
APPENDIX — FOEMS. 225 
 
 No. 29. 
 PETITION FOB, ADMINISTRATION. 
 Surrogate's court, county of Eensselaer: 
 
 In the matter of the goods, etc. 
 
 of 
 
 James Doe, deceased. 
 
 J 
 
 To Moses Warren, Esq., Surrogate of Eensselaer 
 county : 
 
 The petition of Sarah Doe of the city of Troy, in 
 said county, respectfully, shows : That John Doe, late 
 of said city, died from disease, on or about the 10th 
 day of January, 1862, at the city of Troy aforesaid, 
 without leaving any last will and testament; that said 
 deceased at the time of his death, was possessed of 
 certain personal property, within the state of New 
 York, the value whereof does not exceed the sum of 
 one thousand dollars, as your petitioner has been 
 informed and believes ; that the said deceased left him 
 surviving his widow your petitioner, and his children, 
 John Doe, and Mary Boe wife of Richard E,oe, all resi- 
 dent in the city of Troy, aforesaid, his only next of 
 , kin ; and that he was at or immediately previous to 
 his death, an inhabitant of the county of Rensselaer. 
 And your petitioner prays that administration on 
 the. said estate may be granted to your petitioner 
 jointly with Richard Roe of said city of Troy. 
 Dated, Troy, February 20, 1862. 
 
 (Signed). Sakah Roe. 
 15 
 
226 EXECUTOR'S AND ADMINISTEATOR'S GUIDE. 
 
 Rensselaer county, ss : 
 
 Sarah Roe being duly sworn, says: That she has 
 
 heard the foregoing petition read, and that the same 
 
 is true. 
 
 Sarah Roe. 
 
 Sworn before me, this 20th "I 
 
 day of February, 1862. J 
 
 Moses Wabeen, Surrogate. 
 
 No. 30. 
 OATH OF ADMINISTRATOK. 
 
 State of New York, \ 
 
 Rensselaer county, i 
 
 I, Richard Roe, do solemnly swear, that I will 
 honestly and faithfully discharge the duties of the ad- 
 ministrator of the goods, chattels, and credits of John 
 Doe deceased, according to law. 
 
 RiCHAKD Rob. 
 
 Sworn before me, this 2.0th "» 
 day of February, 1862. J 
 
 This oath may be taken before any officer authorized 
 to administer oaths. 
 
APPENDIX — FORMS. 227 
 
 No. 31. 
 
 BOND OF ADMINISTEATOR. 
 
 Know all men by these presents : that we, John Doe, 
 Eiehard Eoe and Thomas I^okes, of the city of Troy, 
 are held and firmly bound unto the people of the State 
 of ISTew York, in the sum of two thousand dollars, 
 current money of the United States, to be paid to the 
 said people, to which payment, well and truly to be 
 made, we bind ourselves, our and each of our, heirs, 
 executors and administrators, jointly and severally, 
 firmly by these presents. 
 
 Sealed with our seals, and dated this 22d day of 
 February, 1862. 
 
 The condition of this obligation is such, that if the 
 above bounden John Doe, administrator of all and 
 singular the goods, chattels, and credits of Eiehard 
 Eoe, late of the city of Troy, deceased, shall faithfully 
 execute the trust reposed in him as such, and also, that 
 he obey all orders of the surrogate of the county of 
 Eensselaer, touching the administration of the ^estate 
 committed to him, then this obligation to be void, 
 otherwise to remain in fall force. 
 
 (Signed), John Doe, [l. s.J 
 
 ElCHARD EoB, [l. s.J 
 Thomas ITokbs,. [l. s.] 
 
 Sealed and delivered in \ 
 the presence of i 
 
 Moses Warren. 
 
228 EXECUTOR'S AND ADMINISTRATOR'S GUIDE. 
 
 } 
 
 State of New York, 
 Rensselaer county, 
 On this 22d day of February, 1862, before me, per- 
 sonally appeared fTohn Doe, Eichard Eoe and Thomas 
 ISTokes, to me known to he the individuals described in 
 and who executed the foregoing bond, and severally 
 acknowledged that they executed the same. 
 
 Richard Heaktt, 
 Com'r. of Deeds, Troy, N. Y. 
 
 Rensselaer county, ss : 
 
 Richard Roe and Thomas I^okes, of the city of Troy, 
 
 being each duly sworn, do each depose and say 
 
 that he is worth the sum of two thousand dollars 
 
 over above all debts due from, or liabilites incurred by 
 
 him. 
 
 Richard Hbartt, 
 
 Ccrni'r. of Deeds, Troy, N. Y. 
 
 No. 32. 
 
 PETITION FOE ADMINISTRATION WITH WILL AN- 
 NEXED. 
 
 Surrogate's Court Rensselaer county : 
 
 In the matter of the goods and 
 chattels 
 
 of 
 
 Johnj^Doe, deceased. 
 
 To the Surrogate of the county of Rensselaer : 
 
 The petition of A B, of the town of Brunswick in 
 said county respectfully shows: 
 
APPENDIX — FORMS. 229 
 
 That the above named John Doe died in the town 
 
 of Brunswick, on or about the day of :., 
 
 1872, having made his last will and testament, dated 
 June 10, 1860, in and by which he appointed C D, of 
 said town, sole executor. 
 
 That said will was duly admitted to probate in the 
 court of the surrogate of Eensselaer county, on the 
 
 day of , 1872, as by reference thereto 
 
 will more fully appear. 
 
 That said C D died before the said John Doe, and 
 
 by reason of his death, no one remains to administer 
 
 upon the personal estate of said John Doe, deceased,' the 
 
 value of which will not exceed the sum of two thousand 
 
 dollars, as your petitioner is informed and believes. 
 
 Your petitioner is the residuary legatee named in said 
 
 will, and prays that letters of administration with the 
 
 will annexed of the said deceased, may issue to Mm. 
 
 Dated, Dec. 13, 1872. 
 
 A.B. 
 
 Rensselaer county, ss : 
 
 A B, being duly sworn, says that the foregoing peti-, 
 tion, by him subscribed, is true. 
 
 Sworn before me this 13th, 
 day of December, 1872. 
 
 A. B. 
 
 } 
 
 .., Surrogate. 
 
230 EXECUTOR'S AND ADMINISTRATOR'S GUIDE. 
 
 No. 33. 
 PETITION FOR APPOINTMENT OP COLLECTOR. 
 
 Surrogate's court, Eensselaer county : 
 
 In the matter of the goods and 
 chattels 
 
 of 
 
 John Doe, deceased. • 
 
 To the Surrogate of the county of Eensselaer : 
 
 The petition of A D, of the town of Brunswick, in 
 said county, respectfully shows : 
 
 That your petitioner is one of the next of kin of (or, 
 is a legatee named in the will of, or is a creditor of), John 
 Doe, late of the said town of Brunswick,. deceased, of 
 which town said John Doe, was an inhabitant at the 
 
 time of his decease, which occurred on the day 
 
 of ,1872. 
 
 That said deceased, is said to have made in his life 
 
 time, his last will and testament, dated on the 
 
 day of , 1870, which has been offered for 
 
 probate before the surrogate of said coudty, as a will 
 of real and personal estate, and the probate of the same 
 has been, and is contested, (or that Jane Doe, claiming 
 to be the widow of said deceased, applies for adminis- 
 tration upon the goods, chattels and credits of the 
 said deceased to said surrogate, and her right to such 
 administration is contested, or J D, the sole executor 
 named in said will is absent from this state, and as 
 your petitioner is informed and believes, will remain 
 so absent for some time). 
 
APPENDIX — FORMS. 231 
 
 That the personal property of said deceased, is so 
 situated as to be liable to waste and damage, or depre- 
 ciation (giving the reason), and your petitioner is 
 advised that a special collector should be appointed to 
 collect, and care for the same. 
 
 The value of such personal property, as your peti- 
 tioner is informed and believes, will not exceed the 
 sum of dollars. 
 
 Wherefore your petitioner prays that letters of admin- 
 istration for the collection of the estate of said deceased 
 may issue to him. 
 
 Dated, December 14, 1872. A. B. 
 
 Bensselaer county, ss. : 
 
 A B being duly sworn, says that the foregoing peti- 
 tion, by him subscribed, is true. 
 
 AB. 
 Sworn before me, etc., 
 
 Moses "Warren, Surrogate. 
 
 No. 34. 
 
 OKDEB, FOK ADMINISTEATION "WITH THE WILL 
 ANNEXED. 
 
 At etc., (as in case No. 9). 
 
 Present — , Surrogate. 
 
 In the matter of the estate 
 
 of 
 , deceased. 
 
 It appearing by the petition of ; , 
 
 that the last will and testament of the above deceased. 
 
232 EXECUTOR'S AND ADMINISTKATOB'S GtVlDK 
 
 was duly proved in this court on the day of 
 
 , 1870, and that letters testamentary were 
 
 thereupon issued to , executor named in 
 
 said will, and that the said executor has since died 
 leaving some of the personal estate of the said deceased, 
 amounting to the probable value of dol- 
 lars, administered ; That the said , is the 
 
 residuary legatee named in said will, and he having 
 taken the oath required by law, and filed in this court 
 a bond, with sureties approved by the surrogate, in the 
 
 penal sum of dollars, and with the condition 
 
 required by law. 
 
 It is ordered that letters of administration upon the 
 goods, chattels and credits, with the vsdll annexed, of 
 
 the said , deceased, issue to the said 
 
 , petitioner as aforesaid. 
 
 , Surrogate.' 
 
 No. 35. 
 
 OKDBR FOE CITATION TO WIDOW AND NEXT OE 
 
 KIN. 
 
 At etc., (as in case No. 9). 
 
 Present — Hon. Surrogate. 
 
 In the matter of the estate 
 
 of 
 
 , deceased. 
 
 On reading and filing the petition of A B, a credi- 
 tor of the said deceased, from which it appears that 
 
APPENDIX — FORMS. , 233 
 
 the said ,»,. , being an inhabitant of the 
 
 town of , this county, died on or about the 
 
 day of last, leaving • certa,in per- 
 sonal esjate of the probable value of dol- 
 lars, and that the said deceased left Mm surviving 
 
 his widow, and his children (naming 
 
 them), his next of kin. 
 
 It is ordered that a citation issue to said widow and 
 next of kin of said deceased, requiring them to appear 
 
 in this court, on the day of , 1872, to 
 
 take upon them the administration of the goods chat- 
 tels and credits of the said deceased, or show cause 
 why such administration should not be granted to said 
 A B, petitioner as aforesaid. 
 
 , Surrogate. 
 
 No. 36. 
 
 CITATION TO WIDOW AND NEXT OF KIN. 
 
 The people of the state of New York, to A B, 
 
 widow, and , next of kin 
 
 [L. s.] of , late of the town of 
 
 , in the county of , 
 
 deceased. 
 
 Tou are hereby cited, personally, to be and appear 
 
 before our surrogate, of our county of , 
 
 at his office, in the of , on 
 
 the of , 1872, at ten o'clock in the 
 
 forenoon, to take upon you, or either of you, the admin- 
 istration of the goods, chattels and credits of said de- 
 ceased, or to show cause why the same should not be 
 
234 EXECUTOR'S AND ADMINISTRATOR'S GUIDB. 
 
 granted to , a creditor of said deecased, who 
 
 has applied therefor. 
 
 Witness, surrogate, and the seal of our 
 
 court, this of .', 1872, 
 
 , Surrogate. 
 
 No. 37. 
 ORDER FOR LETTERS OF ADMINISTRATION. 
 At etc., (as in case No. 9). 
 
 Present — Hon , Surrogate. 
 
 In the matter of the goods and 
 chattels 
 
 of 
 ,.., John Doe. 
 
 On reading and filing the petition of A B, widow of 
 said deceased (or of A B, creditor of said deceased, 
 citation having been issued to the widow and next 
 of kin of said deceased, and they having failed to apply 
 for letters of administration), by which it appears that 
 
 the said .*.. has diedintestate, being at the time of 
 
 his death an inhabitant of the town of , 
 
 in this county possessed of personal property of the pro- 
 bable value of dollars, and praying that 
 
 letters of administration of the goods, chattels and credits 
 of said deceased may be granted to her ; and the said 
 A B having filed in this court her bond in the form re- 
 quired by law, in the penal sum of dollars, 
 
 with two sufficient sureties, approved by the surrogate. 
 
APPENDIX— FORMS. 235 
 
 and having taken the oath required by law, it is 
 
 ordered, that letters of administration of the goods, 
 
 chattels and credits of the said deceased be issued to 
 
 the said A B. 
 
 , , Surrogate. 
 
 No. 38.^ 
 
 PETITION FOR KEVOCATION OF LETTERS OF AD- 
 MINISTRATION GRANTED ON FALSE REPRE- 
 SENTATION AND FOR NEW LETTERS. 
 
 Surrogate's court, county of Albany : 
 
 In the matter of the administra- 
 tion of the goods, chattels and 
 credits 
 
 of 
 , deceased. 
 
 To Hon. Israel Lawton, Surrogate of the county of 
 Albany. 
 
 The petition of , of the town of 
 
 , in the county of , and state 
 
 of , respectfully shows: 
 
 That your petitioner was married to ." , 
 
 at , in the county of , and 
 
 state of , on or about the day of 
 
 ..., 1835, and lived and cohabited with the 
 
 said , as his wife, until about the 
 
 day of ,18..., at , aforesaid, 
 
 and that there were during that time born to her, the 
 issue of herself and her said husband, after their said 
 
236 EXECUTOR'S AND ADMINISTRATOR'S GITIDE. 
 
 marriage, the following children to wit : (giving names, 
 ages and residences). 
 
 That on or about the day of , 
 
 18..., the said ^ left your petitioner 
 
 and their said children, and went, as your petitioner is 
 
 informed and believes, to , where he 
 
 remained some years, after which, (giving his- 
 tory of his movements as fully as possible). That ' 
 
 afterwards, about the month of , 1865, 
 
 as nearly as your petitioner can ascertain, the said 
 
 , came to, the city of Albany, and 
 
 commenced living with a woman, whose maiden name 
 
 was , who, as your petitioner is in- 
 
 ■formed and believes, claimed to have been married to 
 him. 
 
 That in said city of Albany, the said , 
 
 passed under the name of , and lived 
 
 and cohabited with the said ' , as his wife. 
 
 That said , die^, as your petitioner 
 
 has recently ascertained, at said city of Albany, on or 
 
 about the day of , 1869, 
 
 *" » but your petitioner knew nothing of his decease, until 
 
 about the ? day of ,1871. 
 
 That themarriage between the said , 
 
 and your petitioner, was not dissolved during the 
 lifetime of the said 
 
 That on or about the day of , 
 
 1869, the said , under the name 
 
 of , presented a petition to Hon. 
 
 , surrogate of the county of Albany, 
 
 verified by her oath, setting forth the death of the said 
 
APPENDIX— forms: 237 
 
 , as aforesaid, that he died intes- 
 tate, without having any child or children, him surviv- 
 ing, and leaving the said .., his 
 
 widow. That said petition does not state that your 
 petitioner was living or dead, or that she had ever 
 
 been the wife of the said ; nor 
 
 does it state<that the aforesaid children' of your pe- 
 titioner, e¥-ftt the said , or any 
 
 of them are living, hut wholly fails to disclose such 
 facts, although as your petitioner is informed and be- 
 lieves, well knew such facts, at the time she presented 
 and verified her said petition. (It is not necessary to 
 aver or prove, that the former petitioner knew the 
 facts alleged.) 
 
 That such petition presented by the said 
 
 prayed that the said , might be appointed 
 
 administratrix of the goods, chattels and credits of the 
 said ^feL , and such pro- 
 ceedings were ther^¥« had in said court, that on or 
 
 about the day of ,. , 1869, letters of 
 
 administration of the goods, chattels and credit of the 
 
 said , were duly granted and issued by the-^t.^^ 
 
 surrogate to the said , under the name of 
 
 , aiid the said , thereupon took 
 
 possession of the goods, chattels and credits of the said 
 deceased, and still has possession of the same, unless 
 she has since disposed of them. 
 
 That said , has filed no inventory of 
 
 the property, and assets of the said , as 
 
 your petitioner is informed and believes, and your 
 petitioner cannot state the amount received by her. 
 That your petitioner has made diligent search and 
 
238 EXECUTOR'S AND ADMINISTRATOR'S GUIDE. 
 
 inquiry for a will of the said deceased, and has not 
 foun^ any, or obtained any information that he left, or 
 had ever made one. That your petitioner has, to the 
 best of her ability, estimated and ascertained the amount 
 and value of the personal property, of which the said 
 deceased, died possessed, and that the same does not 
 exceed in value the sum of dollars. 
 
 That the said deceased left him surviving, your pe- 
 titioner, his widow, and his children aforesaid, residing 
 as aforesaid, entitled to his estate. 
 
 Tour petitioner further shows that the said intestate, 
 at or immediately previous to his death, was an inha- 
 bitant of the county of Albany. / 
 
 Wherefore, your petitioner prays that letters of ad- 
 ministration of all, and singular the goods, chattels and 
 
 credits of said , alias , so as 
 
 aforesaid issued by the said surrogate of the county of 
 
 Albany, bearing date on the day of , 
 
 1869, be revoked ; That a citation issue to the said 
 
 , alms , requiring het to 
 
 show cause why such letters of administration should 
 not be revoked. 
 
 And your petitioner prays that upon such revo- 
 cation, administration upon the goods, chattels and cre- 
 dits of the said , may be granted to your 
 
 petitioner, as administra-trix, j oin tly with , of 
 
 the city of Albany, as administrator. 
 
 And that your petitioner may have such other or 
 further rule, order, and relief as to the court, shall 
 ifteem meet and agreeable to law and equity. 
 
 Dated, this ; day of , 1871. 
 
 (Signed), 
 
APPENDIX — FORMS. 239 
 
 State of Few York, \ „ 
 
 ' V ss : 
 
 county, } 
 
 On this day of , 1871, before me 
 
 personally came , the petitioner named in 
 
 the foregoing petition, who being by me duly sworn, 
 deposes and says, that she has heard read the forego- 
 ing petition, by her subscribed, and knows the contents 
 thereof, and that the same is true of her own know- 
 ledge, except to the matters which are therein stated 
 on information and belief, and as to those matters she 
 believes it to be true. 
 
 (Signed), ,. Surrogate. 
 
 No. 39. 
 
 OEDER FOE CITATION ON THE FOEEGOING 
 PETITION. 
 
 At a surrogate's court held in and for the county 
 of Albany, at the City Hall, in the city of 
 
 Albany, on the day of 
 
 1871. 
 Present Israel Lawton, Surrogate. 
 
 In the matter of the estate 
 
 of 
 
 , deceased. 
 
 On reading and filing the petition and allegations of' 
 , claiming to be the widow of , 
 
240 EXECUTOR'S AND ADMINISTRATOR'S GUIDE. 
 
 late of the deceased, praying that the 
 
 letters of administration heretofore, to wit, on the 
 
 day of , 1869, granted by the surrogate of 
 
 Albany county, to as administratrix of 
 
 the goods, chattels, and credits, of , other- 
 wise called , be revoked; On motion of 
 
 , of counsel for the said , it 
 
 is ordered, that a citation, issue to said , 
 
 requiring her to appear in this court on day 
 
 of , 1872, at ten o'clock in the forenoon 
 
 to show cause why the said letters of administration so 
 granted to her should not be revoked. 
 
 ,Surrogate. 
 
 ■^ No. 40. 
 
 CITATION TO ADMINISTRATEIX TO SHOW CAUSE 
 WHY LETTERS SHOULD NOT BE REVOKED. 
 
 To , otherwise ■ of the 
 
 city of , greeting: 
 
 You are hereby cited, summoned and required, per- 
 sonally, to b6, and appear before our surrogate of our 
 
 county of , in our surrogate's court, on 
 
 the day of ,1872, at ten o'clockA. m. 
 
 of that day,atthe surrogate's office in the 
 
 of ,then and there to show cause why 
 
 the letters of administration granted to you on the 
 
 day of , 1869, as administratrix of the 
 
APPENDIX — FORMS. 241 
 
 goods, chattels and credits of , should not 
 
 be revoked. 
 
 In testimony whereof, we have caused the seal of 
 [l. s.] office of our said surrogate, to be hereunto 
 affixed. 
 
 Witness surrogate, the day 
 
 of ,1872. 
 
 , Surrogate. 
 
 No. 41. 
 OKDEK FOE EEVOCATION OF LETTERS. 
 At a Surrogate's court, held, etc. 
 Present — Hon , Surrogate. 
 
 In the matter of the estate 
 
 of 
 
 deceased. 
 
 This matter coming on to be heard on the petition 
 
 and allegations of I ,, the widow of , 
 
 otherwise called , late of the city of 
 
 , deceased, to revoke the letters of ad- 
 ministration upon the estate of said deceased, granted 
 
 by the surrogate of Albany county, on the day 
 
 of , 1869,to ,alias , 
 
 as administratrix of the goods, chattels and credits of 
 said deceased ; and on the return of the citation here- 
 tofore isBuejd, requiring the said alias 
 
 16 
 
242 EXECUTOE'S AND ADMINISTEATOE'S GtTIDB. 
 
 , to appear in this court on. the 
 
 day of , 1872, to show cause why the 
 
 said letters of administration should not be revoked, 
 and due proof of the personal service of the said cita- 
 tion ie the said alias , hav- 
 
 ing been produced and filed, and the said , 
 
 who filed the allegations herein, having appeared by 
 
 , her proctor and counsel in support of 
 
 such allegations, and the said ,. , alias 
 
 , having appeared by , Esq., 
 
 her proctor and counsel in opposition, and the said 
 matter havingbeen heard on several days and adjourned 
 to this day, and upon hearing the proofs of the parties 
 and counsel for them respectively, and due delibera- 
 tion being therefore had* 
 
 It is adjudged, decided and decreed, and the surro- 
 gate of the county of. Albany, by virtue of the power 
 and authority in him vested, doth adjudge, decide and 
 decree that the said , was lawfully mar- 
 ried to the said , otherwise called , 
 
 at the town of , in the county of , 
 
 in the state of , op orubout the 
 
 of , 18. . ., and^lived^iM cohabited with 
 
 him ; that the marriage aforesaid is not proved to 
 have been dissolved during the lifetime of the said 
 
 , otherwise called ; that 
 
 the said , died intestate, at the city of 
 
 Albany, on or about the day of , 
 
 186.., leaving him surviving the said , 
 
 his widow. That on or about the day of 
 
 , 186.., said alias , 
 
APPENDIX — FORMS. 243 
 
 presented her petition to the surrogate of the county 
 of Albany, in due form, praying that administration 
 
 of the goods, chattels and credits of said , 
 
 deceased, and claiming that she, the said , 
 
 was the widow of said deceased : that thereupon, said 
 
 surrogate on the day of , 1869, 
 
 granted letters of administratio'n to said , 
 
 alias , as administratrix of the goods, 
 
 chattels and credits of said , otherwise 
 
 called i , deceased; that such letters were 
 
 granted on or by reason of the false representations 
 
 made by the said alias , in 
 
 her said petition. 
 
 And the said surrogate doth further order and 
 decree that the letters of administration so as aforesaid 
 
 granted and issued to the said alias 
 
 , on the day of , 
 
 1869, aa^y^dministratrix of the goods, chattels and cre- 
 dits of said , , otherwise called , 
 
 deceased, be, and the same are hereby revoked, and 
 annulled, and that a revocation issue out of and under 
 the seal of this court. 
 
 It is further ordered that letters of administration of 
 
 the goods, chattels and credits of the said , 
 
 deceased, issue to the said , upon her 
 
 taking the required oath, and filing the bond with 
 sureties as required by law. 
 
 In testimony whereof, the surrogate of the county of 
 
 Albany, has hereunto set his hand and aflBxed 
 
 [l.s.] the seal of this court, the day and year first 
 
 above written. 
 
 , Surrogate. 
 
244 EXECUTOR'S AND ADMINISTRATOR'S GUIDE. 
 
 No. 38. ■ 
 OEDEE FOE APPOINTMENT OF APPEAISEES. 
 At, etc. 
 
 Present — Hop , Surrogate. 
 
 In the matter of the estate 
 
 of 
 
 , deceased. 
 
 On the application of , executor of the 
 
 last will and testament of the said , de- 
 ceased. 
 
 It is ordered that , of the 
 
 of , and , of the , 
 
 of , be appointed appraisers of the per- 
 sonal estate Of the deceased. 
 
 , Surrogate. 
 
 No. 39. 
 NOTICE OF APPEAISEMENT. 
 
 To the legatees and next of kin of John Doe, deceased : 
 
 Eensselaer county, 'ss : 
 
 Take notice, that the subscriber, with the appraisers, 
 duly appointed, will attend at the late dwelling house 
 of the deceased, in the city of Troy, in the said county, 
 on the 28th day of Tebruary, 1862, at ten o'clock in 
 
APPENDIX— FOEMS. 245 
 
 tlie forenoon of that day, to estimate and appraise the 
 personal property .of the said deceased, and, with the 
 aid of the said appraisers, take an inventory thereof. 
 Dated, Eebruary 22d, 1862. 
 
 John Dob, Administrator, etc. 
 
 No. 40. 
 INVENTORY. 
 
 We, whose names are hereunto signed, appointed by 
 the surrogate of the county of Rensselaer, having first 
 taken and subscribed the oath required by law and 
 hereto annexed, do certify, that we have estimated and- 
 appraised the property in the annexed inventory con- 
 tained exhibited to us, according to the best of our 
 knowledge and ability, and we sign duplicate inven- 
 tories thereof. 
 
 Dated, this 28th day of February, 1862. 
 
 , Appraisers. 
 
 State of New York, ■> 
 
 * v ss • 
 
 Kensselaer county, J 
 
 I do solemnly swear that I will truly, honestly and 
 impartially appraise the personal property of (Eichard 
 Eoe), deceased, which shall be exhibited to me, accord- 
 ing to the best of my knowledge and ability. 
 
 (Signed), John Doe. 
 
246 EXECUTOR'S AND ADMINISTRATOR'S GUIDE. 
 
 Sworn before me, this 28th \ 
 day of February, 1862. / 
 John Kirby, 
 
 Justice of the Peace. 
 
 State of New York, \ 
 Rensselaer county, / 
 I do solemnly swear, etc., (the same as the oath 
 above to be signed by the other appraiser and sworn 
 to in the same manner). 
 
 (Signed), Eichard Eoe. 
 
 Sworn before me, this 28th -> 
 day of February, 1862. | 
 . Hbnkt Kiebt, 
 
 Justice of the Peace. 
 
 A true and perfect inventory of all and singular the 
 goods, chattels and credits of Richard Roe, deceased, 
 
 made by administrator (or as the case 
 
 may be), etc., of the said deceased, with the aid of 
 (John Doe) and (Richard Roe) appraisers appointed by 
 the surrogate of Rensselaer county, duly qualified, and 
 after service of notice as the law directs, on the 28th 
 day of February, 1862. 
 
 The following articles are stated but not appraised, 
 being set apart, according to law, for the widow (or 
 minor children), to wit : 
 
 One spinning wheel. 
 
 One weaving loom. 
 
 Three stoves kept for the use of the family. 
 
 (Continue the list set apart by law). 
 
APPENDIX — POEMS. 24-7 
 
 The following articles are appraised and set apart 
 for the use of the widow (or the use of the widow and 
 minor children), in addition to those enumerated 
 above, in pursuance of the statute, to wit : 
 
 One mahogany bureau, $15 00 
 
 One bay mare, 75 00 
 
 One half barrel flour, 3 50 
 
 One cord wood, cut and split for use, 5 00 
 
 Cash, 25 00 
 
 (And this to the amount of $150). 
 
 The following articles are in addition to those above 
 enumerated, to wit : 
 
 40 sheep, 20s., $100 00 
 
 1 sorrel horse, 60 00 
 
 1 black horse, 75 00 
 
 (And thus through the like articles). 
 
 The following accounts and notes are considered 
 good and collectable, to wit; 
 
 Note, John Myers, dated Feb. 10, 
 1860, for $100, endorsed interest 
 for two years, now worth, $100 00 
 
 Account against James Jones, 15 00 
 
 (And thus through the good items). 
 
 The following are considered doubtful, to wit : 
 
 Note, Thomas Nokes, dated Aug. 1, 
 
 1857, no endorsement, $16 00 
 
 (And so through the doubtful). 
 
248 EXECUTOR'S AND ADMINISTEATOE'S GUIDE. 
 
 The following are considered bad, to wit : 
 (Here state the bad items in detail). 
 
 Dated, Feb. 28th, 1862. 
 
 (Signed), , 
 
 ., Appraisers. 
 
 No. 41. 
 
 The following affidavit is to be endorsed on, or an- 
 nexed to the inventory when filed : 
 
 State of New York, \ 
 
 c ss ' 
 Rensselaer county, J 
 
 (John Doe), executor, etc. (or administrator, etc.), 
 of Eichard Roe, deceased, being duly sworn, does de- 
 pose and say, that the annexed (or foregoing) inven- 
 tory is in all respects just and true, that it contains a 
 true statement of all the personal property of the said 
 deceased, which has come to the knowledge of this 
 deponent, and particularly of all moneys, bank bills, 
 and other circulating medium ' belonging to the said 
 deceased, and of all just claims of said deceased against 
 this deponent. 
 
 (Signed),' 
 
 Sworn before me, this 1st \ 
 day of March, 1862. J 
 
 R. C. Jennings, 
 
 Justice of the Peace. 
 
APPENDIX — FOBMS. 249 
 
 No. 42. 
 
 PETITION THAT EXECUTOR OR ADMINISTRATOR 
 BE COMPELLED TO RETURN INVENTORY'. 
 
 Surrogate's court, Eensselaer county : 
 
 In the matter of the gooda and 
 chattels of 
 
 A B, deceased. 
 
 To the surrogate of the county of Eensselaer : 
 
 The petition of C D, of the town of Brunswick in 
 said county, respectfully shows : That your petitioner 
 is a creditor (or one of the next of kin of, or a legatee 
 named in the will of), of the ahove named deceased. 
 That letters of administration upon the estate of said 
 deceased, (or letters testamentary upon the will of 
 said deceased) were on the first day of September, 
 1872, duly granted and issued to J D, of the town of 
 Urunswick aforesaid, and that notwithstanding that 
 more than three months nave elapsed since the issue 
 of such letters, the said J D has not filed an inventory 
 of the personal estate of the said deceased, in the office 
 of the said surrogate^ as he was required by law to do. 
 Wherefore, your petitioner prays that a summons 
 issue to the said J D, as executor as aforesaid, re- 
 quiring him to appear before said surrogate and 
 return an inventory according to law, or show cause 
 why an attachment should not issue against him. 
 
 Dated, December, 14th, 1872. 
 
 CD. 
 
250 EXECUTOR'S AND ADMINISTBATOB'S GUIDE. 
 
 Rensselaer county, ss : 
 
 C D, being duly sworn, says that the foregoing peti- 
 tion, by him subscribed, is true. 
 
 Sworn, etc. 
 
 CD. 
 
 No. 43. 
 
 OEDEK FOE SUMMONS, TO EXECUTOE OE ADMIN- 
 ISTEATOE TO FILE INVENTOEY. 
 
 At, etc. 
 
 Present — Hon , Surrogate. 
 
 In tlie matter of the estate 
 
 of 
 
 , deceased. 
 
 On reading and filing the petition of A B, showing 
 that he is a creditor, (or.a legatee named in the will of 
 
 or, one of the next of kin of) , late of the 
 
 town of , in said, county deceased, that 
 
 C D, is executor of the will of said'deceased, (or admin- 
 istrator of the goods, chattels, and credits of said de- 
 ceased) that more than three months have elapsed 
 since the granting of letters to said C D, as executor 
 (or administrator) as aforesaid, and said D has 
 omitted to make and file an inventory of the per- 
 sonal estate of the said deceased. 
 
 It is ordered that a summons issue to said C D, exe- 
 cutor (or administrator) as aforesaid, requiring him to 
 
APPENDIX — FORMS. 251 
 
 .appear before the surrogate, at his office in the city of 
 
 Troy, on the day of , then and 
 
 there to return an inventory of the personal property, 
 goods, chattels and credits of the said deceased, accord- 
 ing to law, or to show cause why an attachment should 
 not be issued against him. 
 
 ., Surrogate, 
 
 No. 44. 
 
 SUMMONS TO BETUKN INVENTOEY. 
 
 The people of the state of N"ew York to C D, 
 executor of the last will and testament 
 
 [l. s.] of , late of , 
 
 in the county of ., deceased. 
 
 Tou are hereby summoned and required to appear 
 
 before the surrogate of the county of , at 
 
 his office, in the of , on the 
 
 day of next, at ten o'clock in the 
 
 forenoon, then and there to return an inventory of the 
 goods, chattels and credits of said , de- 
 ceased, according to law, or to show cause why an 
 attachment should not issue against you. 
 
 "Witness , surrogate and the seal of our 
 
 * said court this day of , 
 
 1872. 
 
 , Surrogate. 
 
252 EXECUTOR'S AND ADMINISTRATOR'S GUIDE. 
 
 No. 45. 
 ORDEE FOR COMMITMENT. 
 
 At, etc. 
 
 Present — Hon Surrogate. 
 
 1 
 
 In the matter of the estate 
 
 of 
 
 , deceased. 
 
 A summons having been issued .from this court re- 
 turnable this day, to A B, executor of the will of said 
 deceased, requiring his heirs to appear on this day and 
 file an inventory of the goods, chattels and credits of 
 said deceased, or show cause why an attachment should 
 not issue against him, and the said A B, not having 
 appeared (or having appeared and refused to return such 
 invent(*y), and no cause being shown why an attach- 
 ment should not issue against him. 
 
 It is ordered and adjudged, that the said A B be com- 
 mitted to the common jail of the county of. , 
 
 there to remain until h& shall return such inventory, 
 or be thence discharged by due course of law; and it is 
 further ordered, that an attachment issue against him, 
 
 directed to the sheriflFof the county of , 
 
 returnable on the day of , 1872. 
 
 , Surrogate. 
 
APPENDIX — F0EM9. 253 
 
 .No. 46. 
 ATTACHMENT. 
 
 • 
 
 The People of the State of Uew York, to the 
 
 [l.s.] sheriff of the county of , 
 
 greeting : 
 
 Whereas, on the day of , 1872, 
 
 by a certain order made in our Surrogate's court of 
 
 our county of , before our surrogate of 
 
 said county, at the , of , in 
 
 said county, in a certain proceeding pending in our 
 
 said court, in the matter of the estate of , 
 
 deceased, it was ordered that C D, executor of the will 
 of said deceased, be committed to the common jail, of 
 
 the county of , until he shall return to 
 
 our surrogate's court of said county, an inventory of 
 the goods, chattels and credits of said deceased, or be 
 thence discharged by due course of law, as by the said 
 order remaining of record, in our said surrogate's 
 court more fully appear^, the said C J) having refused 
 to return such inventory, although required so to do 
 by an order and summons of our said court. 
 
 Ifow therefore we command you, that you take the 
 body of the said C D, 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, on 
 
 the day of , 1873, a certificate, 
 
 under your hand, of the manner in which you shall 
 
254 EXECUTOR'S AND ADMINISTEATOR'S GUIDE 
 
 have executed this writ, and have you then and there 
 this writ. 
 In testimony whereof, we have caused this writ to 
 be Bubscribed by our said surrogate,' and the 
 
 seal of said court to be affixed, this day 
 
 of ,1872. 
 
 „Surrogate. 
 
 Indorsement. 
 
 Title, 
 
 Attachment against C D, executor, etc., of , 
 
 deceased, intestate, for not returning an inventory 
 of the goods, etc., of said deceased. 
 
 , Surrogate. 
 
 No. 47. 
 OEDEE FOE EEVOCATION OF LETTEE. 
 
 At, etc. 
 Present — Hon , Surrogate. 
 
 In tte matter of the estate 
 
 of 
 , deceased. 
 
 An attachment having heretofore issued against 
 C D, executor of the will of the said deceased, com- 
 mitting him to the common jail of the county of 
 ,. until he should return an inventory of 
 
APPENDIX — FORMS. 255 
 
 the goods, chattels and credits of said deceased ; and 
 it appearing by the certificate of the sheriff' of said 
 county indorsed on said attachment, that more than 
 thirty days have elapsed since the said C D was com- 
 mitted to his custody, and the said C D having still 
 neglected to return such inventory : 
 
 It is ordered and adjudged, that the letters testa- 
 mentary heretofore granted to the said C D, on the 
 last will and testament of said deceased, be revoked, 
 and that a revocation under the seal of this court forth- 
 with issue. 
 
 , Surrogate. 
 
 No. 48. 
 REVOCATION OF LETTERS. 
 
 To D, executor of the last will and testament 
 
 of A B, late of the of 
 
 [l.s.] , deceased, and all others 
 
 whom it may concern, greeting : 
 
 Whereas, on the day of , 1870, 
 
 letters testamentary were duly issued to the said C D, 
 as executor of the last will and testament of A B, late 
 
 of the ....'. of , deceased, by the 
 
 surrogate of the county of : And whereas 
 
 the said C D neglected to return an inventory of the 
 goods, chattels and credits of said deceased, within 
 the time required by law, and a summons was issued 
 thereupon by said surrogate, on the application of 
 
256 EXECUTOR'S AND ADMINISTRATOR'S GUIDE. 
 
 , requiring the said C D to appear before 
 
 said surrogate, and return such inventory, on a day 
 now past, or show cause why an attachment should 
 not issue against him : And whereas it clearly appears 
 to our said surrogate, that the said summons could not 
 be served personally upon the said C D, by reason of 
 his absconding or concealing himself, (or, and whereas 
 the said summons was duly served on the said C D, 
 personally), and the said D, omitted to return such 
 inventory by the day therein appointed, and such pro- 
 ceedings were thereupon had, that an attachment for 
 not returning such inventory was duly issued against 
 
 the said D, to the sheriff of the county of 
 
 by virtue of which the said C D, has been imprisoned 
 for thirty days and upwards in the common jail of 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 sta- 
 tute in such case made and provided, we, have revoked 
 and do revoke said letters testamentary issued as afore- 
 said ; and do command tlje said C D, executor, to 
 desist and refrain from any further intermeddling with 
 the estate of the said deceased. 
 
 "Witness, Moses Warren, surrogate of our said county, 
 [l.s.] and the seal of said court this first day of 
 May, A.D., 1872. 
 
 , Surrogate. 
 
APPENDIX — FORMS. 257 
 
 No. 49. 
 ORDER TO ADVERTISE FOR CLAIMS. 
 At, etc. 
 Present — Hon , Surrogate. 
 
 In the matter of the estate 
 
 of 
 
 A B, deceased. 
 
 It appearing that more than six months have elapsed 
 since the issue of letters of administration upon the 
 
 goods, chattels and credits of A B, late of the 
 
 of , deceased. 
 
 Now on the application of C D, administrator. 
 
 Ordered, that said administrator publish a notice, 
 once a week, for six months, in the , re- 
 quiring all persons having claims, against said deceased, 
 to present the same, with the vouchers thereof, to the 
 
 said administrator, on or before the day of 
 
 , next. 
 
 , Surrogate. 
 
 No. 50. 
 
 NOTICE TO THE CREDITORS TO PRESENT CLAIMS. 
 
 In pursuance of an order of Moses "Warren, Esq., 
 surrogate of the county of Eensselaer, notice is hereby 
 17 
 
258 EXECUTOR'S AND ADMINISTEATOE'S GUIDE. 
 
 given, according to law, to all persons having claims 
 against (Richard E,oe) late of the town of Brunswick 
 in the said county, deceased, that they are required to 
 exhibit the same, with vouchers thereof, to the sub- 
 scriber, executor of the will of the said deceased, at 
 his residence in the said town of Brunswick, on or 
 before the first day of September, 1862. 
 Dated, February 28, 1862. 
 
 (Signed), , Executor. 
 
 No. 51. 
 
 AFFIDAVIT TO ANNEX TO CLAIM. 
 
 Rensselaer county, ss : 
 
 - Edward Murphy of the city of Troy, in the county 
 of llensselaer aforesaid, being sworn, doth depose and 
 say that that the foregoing claim against the estate of 
 Kyran Cleary, deceased, is justly due and owing to 
 this deponent; that no payments have been made 
 thereon, and that there are no offsets against the same 
 (other than those stated in the foregoing account), to 
 the knowledge of this deponent. 
 
 (Signed), Edward Murphy. 
 
 Sworn to, this first day of 
 March 1862, before me, 
 
 George Dat, Com'r. of Deeds. 
 
 Troy, K T., 
 
 J 
 
APPENT)IX— FORMS. 259 
 
 No. 52. 
 AG-EBBMENT TO REPBR CLAIM. 
 
 Whereas, A B has lately presented a elaim to the 
 executor of the last will and testament of C D, late of 
 
 the town of , deceased, for , 
 
 a copy whereof is attached hereto, the justice of which 
 claim is doubted* by the said executor, it is thereupon 
 agreed that the matter in controversy be referred to 
 
 , as referees to hear and determine the 
 
 same. 
 
 Dated, l^ov. 1, 1872. 
 
 (Signed), A B. 
 
 C D, Executor. 
 
 I hereby approve of the referees named in the ford- 
 going agreement. 
 
 Dated, Nov. 15, 1872. 
 
 Moses Warren, Surrogate, 
 
 No. 53. 
 
 PETITION FOR PROOF OF DEBT, DUE TO AN 
 EXECUTOR OR ADMINISTRATOR. 
 
 To the Surrogate of the county of : 
 
 The petition of of the of 
 
 ...,in said county, respectfully shows : 
 
 That your petitioner is one of the executors named 
 
 in the last will and testament of , late of 
 
 , in said county, deceased; that said will 
 
 was duly proved, and letters testamentary issued to 
 
260 EXECUTOR'S AND ADMINISTRATOR'S GUIDE. 
 
 your petitioner on the day of 
 
 last, and your petitioner has made and returned an 
 inventory of the personal estate of the said deceased, 
 by which it appears that said personal estate, applica- 
 ble to the payment of debts, legacies and expenses 
 
 amounts to about dollars. That at the 
 
 time of the death of said , he was indebted 
 
 to your petitioner in the sum of dollars, 
 
 arising out of the following facts : that' on the .. 
 
 day of , 1869, the said , 
 
 made his promissory note in writing, dated on that 
 day, whereby, for value' received, he promised to pay 
 your petitioner, or order, the sum of dol- 
 lars, on the day of , 1869, with 
 
 interest ; and delivered the same to your petitioner, but 
 said note was not paid at maturity, and still remains 
 wholly unpaid, and there is due thereon, to your peti- 
 tioner, the sum of dollars, with interest 
 
 from the day of , 1869. 
 
 That no payment has been made on said note, nor 
 are there any offsets against the same, or any other 
 defense thereto, to the knowledge and belief of your 
 petitioner. 
 
 Your petitioner further shows, that he has advertised, 
 pursuant to law, for claims against said estate, and 
 none have been exhibited (or, claims have been ex- 
 hibited to the amount of about dollars). 
 
 That C D, of , is coexecutor with your 
 
 petitioner, and is the widow, and 
 
 and , are the children and 
 
 legatees named in the will of said deceased, and all 
 reside in the of 
 
APPENDIX — FORMS. 261 
 
 Tour petitioner, therefore, prays that the debt due 
 to your petitioner may be proved in this court, and 
 that he may be permitted to retain the amount thereof 
 out of the assets in his hands, and he prays that a 
 citation issue, pursuant to the statute, directed to the 
 persons above named, requiring them to attend the 
 proof of said debt, at a time and place therein to be 
 stated. 
 
 Dated, December 1, 1872. 
 
 (Signed), 
 
 Rensselaer county, ss. : 
 
 , being duly sworn, says that the fore- 
 going petition, by him subscribed, is true of his own 
 knowledge, except as to the matters which are therein 
 stated on information and belief, and as to those matters 
 he believes it to be true. 
 
 Sworn, etc. 
 
 No. 54. 
 
 OEDEE FOE CITATION. 
 
 At, etc. 
 
 Present — Hon , Surrogate. 
 
 In the matter of the estate 
 of ' 
 , deceased. 
 
 On reading and filing the petition of , 
 
 as executor of the will of said deceased, showing that 
 
262 EXECUTOR'S AND ADMINISTRATOR'S GUIDE. 
 
 he has a claim against the estate of the said deceased, 
 and praying that the same be proved before said 
 surrogate. 
 Ordered, that a citation issue to the executor of the 
 
 -will of said deceased, and to the legatees 
 
 named in said will requiring them to appear in the 
 
 court on the day of next, as 
 
 prayed for in said petition. 
 
 Surrogate. 
 
 No. 55. 
 
 PETITION BY A CEEDITOR FOE PAYMENT OF A 
 
 DEBT. 
 
 Surrogate court, county of... 
 
 In the matter of the estate 
 
 of 
 
 , deceased. 
 
 1 
 
 To the surrogate of the county of, ; 
 
 The petition of , of the 
 
 of '. , respectfully shows : 
 
 That your petitioner is a creditor of said deceased, 
 upon a claim for dollars, as follows: 
 
 That your petitioner sold and delivered to said de- 
 ceased, in his lifetime, goods, wares and merchandise to 
 the value of dollars, which sum the said 
 
APPENDIX — FORMS. 263 
 
 deceased, in Ms lifetime promised, to pay at the ex- 
 piration of months; that said 
 
 did not pay the same in his lifetime, nor have any 
 payments been made thereon since, and there are no 
 effects against the same, to the knowledge of your 
 petitioner, and there is due to your petitioner the sum 
 
 of dollars, with interest thereon, from 
 
 the day of , 1869. 
 
 That on or about the day of , 
 
 1871, the last will and testament of said deceased was 
 duly proved in this court, and letters testamentary were 
 
 issued to , exectutor named therein, who 
 
 has duly returned an inventory of the personal estate of 
 said deceased. That said executor advertised for the 
 presentation of claims against the estate of said de- 
 ceased, and your petitioner duly presented his claim, 
 which was not disputed, and your petitioner after the 
 expiration of one year from the granting of such 
 letters, demanded payment of his said claim from the 
 said executor who has hitherto neglected and refused 
 to pay the same, or any part thereof. "Wherefore, your 
 petitioner prays that an order be made for the payment 
 of said claim, or for such other order as shall be agree- 
 able to law and equity. 
 
 Dated, Dec. 6, 1872. 
 
 (Signed), 
 
 Eensselaer county, ss : 
 
 b.eing duly sworn, says, that the foregoing 
 
 petition, by him subscribed, is true of his own know- 
 ledge, except as to the matters which are therein stated 
 
264 EXECUTOR'S AND ADMINISTRATOR'S GUIDE. 
 
 on information and belief, and as to those matters he 
 believes it to be true. 
 Sworn, etc. 
 
 (Signed), 
 
 No. 56. 
 ORDEE FOR CITATION TO ADMINISTRATOR. 
 
 At, etc. 
 Present, — Hon , Surrogate. 
 
 In the matter of tbe estate 
 
 of 
 , deceased. 
 
 On reading and filing the petition of , 
 
 showing that he is a ereditot of said deceased ; that he 
 
 has presented his claim to , administrator, 
 
 etc., of said deceased ; that said claim was not disputed, 
 and that more than one year has elapsed since letters 
 of administration were issued to the said 
 
 Ordered, that a citation issue to the said , 
 
 administrator, requiring him to show cause why he 
 should not be ordered to pay the claim of the said 
 petitioner. 
 
 , Surrogate. 
 
APPENDIX — FORMS. 265 
 
 No. 57. 
 
 PETITION FOR PAYMENT OP DEBT BEFORE 
 LAPSE OF SIX MONTHS. 
 
 Surrogate's court, Rensselaer county, 
 
 # 
 
 In the matter of the goods and 
 
 chattels of 
 
 John Doe, deceased. 
 
 To the Surrogate of the county of Rensse*laer : 
 
 The petition of A B, of the town of Brunswick, in 
 said county, respectfully shows : 
 
 That your petitioner is a creditor of said John Doe, 
 late of said town of Brunswick, deceased, and the 
 amount justly due, and owing to your petitioner, from 
 
 the estate of said deceased, at this time, is 
 
 dollars. 
 
 That the will of said deceased was admitted to pro- 
 bate, and letters testamentary were issued thereon to 
 J D, executor named therein, on the 15th day of Sep- 
 tember, 1872, (or, that on the 15th day of September, 
 1872, letters of administration upon the estate of said 
 deceased, was duly issued by said surrogate, to Mary 
 Doe, of said town of Brunswick). 
 
 That said executor (or said administratrix), has filed 
 an inventory in the ofiice of said surrogate, whereby it 
 appears that the personal estate of said deceased 
 amounts to the sum of dollars. 
 
 "Wherefore, your petitioner prays that a citation may 
 issue to said executor (or, said administratrix), requir- 
 
266 EXECUTOR'S AND ADMINISTRATOR'S GUIDE. 
 
 ing him (or her), to show cause, why payment of your 
 petitioner's debt, should not be decreed. 
 
 Dated, December 14th, 1872. 
 
 AB. 
 
 Add verification. 
 
 No. 58. 
 
 BOND ON PAYMENT OF LEGACY BEFOKE EX- 
 PIEATION OP YEAR. 
 
 Know all men by these presents, that we, A B, as ■ 
 principal and C D and E F, of the city of Troy, in the 
 county of Kensselaer, and state of l^ew York, are held, 
 and firmly bound unto J D as executor of the will of John 
 Doe, late of the town of Brunswick, deceased, in the 
 
 sum of dollars, for which payment, well 
 
 and truly to be made, we bind our and each of our 
 heirs, executors and administrators j ointly and severally, 
 firmly by these presents. 
 
 Sealed with our seals, and dated this "I 
 14th day of December, A.D. 1872. 1' 
 
 Whereas, in and by the will of said John Doe, de- 
 ceased, dated the day of , 1870, 
 
 a legacy was bequeathed to the said A B, of one hun- 
 dred dollars, payable by the terms of said will, in 
 
 , after the decease of said John Doe, 
 
 and before the expiration of one year from the grant- 
 ing of letters testamentary to the said J D, executor 
 named therein, and the said' J D has at the request of 
 
APPENDIX — FORMS. 267 
 
 the said A B, paid said legacy. Now the conditiou of 
 this obligation is such " that, if any debts against the 
 deceased shall duly appear, and which there shall be 
 no other assets to pay, and there shall be no other 
 assets to pay other legacies, or not sufficient," then 
 the said A B shall refund the legacy so paid, or such 
 ratable proportion thereof, with the other legatees, as 
 may be necessary for the payment of said debts, and 
 the proportional parts of such other legacies, and the 
 costs and charges incurred by reason of the payment 
 to such legatee ; and that if the probate of the said 
 will shall be revoked, or the will declared void, then 
 the said A B shall refund the whole of such legacy 
 wi€h interest to the said J D, or the administrator en- 
 titled thereto, then this obligation to be void, otherwise 
 to remain in full force and effect. 
 
 A B, [L.S.] 
 CD, [L.S.J 
 
 E F, [L.S.] 
 
 Add acknowledgment. 
 
 No. 59. 
 
 RECEIPT OF CREDITOR. 
 
 Received, Troy, April 10, 1862, of John Jones, exe- 
 cutor, etc., (or administrator, etc.), of Henry Jones, 
 deceased, (ten dollars and fifty cents) in full of fore- 
 going account (or in payment of all demands due me 
 from the estate of said deceased), (or for taxes assessed 
 
268 EXECUTOR'S AND ADMINISTRATOR'S GUIDE. 
 
 in the city of Troy on the estate of said deceased, pre- 
 vious to his death). 
 
 (Signed), Amos S. Perry. 
 
 EECEIPT FOE LEGACY. 
 
 Whereas, James Eichards, late of the town of Scho- 
 dack, in the county of Eensselaer, deceased, lately 
 
 made his last will and testament, dated the. day 
 
 of ,1862, in which he gave and bequeathed 
 
 to me the sum of (five hundred dollars) : itfow, there- 
 fore, I hereby acknowledge the receipt of said sum so 
 bequeathed to me, of John Richards, executor named 
 in said will. 
 
 Dated, Schodack, March 1, 1862, 
 
 (Signed), ' Mart Williams. 
 
 No. 60. - 
 PETITION FOE OEDEE TO ACCOUNT. 
 Surrogate's court, Rensselaer, county : 
 
 In the matter of the goods and 
 chattels 
 
 of 
 A B, deceased. 
 
 The petition of C D, of the town of .'..., 
 
 in said county, respectfully shows : 
 
 That your petitioner is a legatee named in the 
 last will and testament of A B, late of the town of 
 
APPENDIX — FORMS. 269 
 
 , in said county deceased (or is a creditor 
 
 of the above deceased). 
 
 That said will was admitted to probate, by said sur- 
 rogate, and letters testamentary were thereon issued to 
 J D, an executor named therein, on the first day of 
 September, 1872, and more than eighteen months have 
 elapsed since the issue of said letters. 
 
 That in and by said will, a legacy of 
 
 dollars was" bequeathed to your petitioner payable in 
 one year from the decease of the testator. 
 
 That said testator left a large personal estate amount- 
 ing to dollars, as by inventory thereof 
 
 on file in the office of said surrogate will fully appear, • 
 and that such personal estate was amply sufficient, as 
 your petitioner is informed and believes, to pay all. the 
 funeral expenses, and debts of the said testator, the 
 expenses of administration and the legacies bequeathed 
 in Baid will. 
 
 Your petitioner has, since the expiration of eighteen 
 months from the issue of letters as aforesaid, applied 
 to said executor and requested him to account and pay 
 the legacy so bequeathed to your petitioner, but not- 
 withstanding, such executor has not accounted nor 
 paid said legacy. 
 
 Wherefore, your petitioner prays that said executor 
 may be required to pay the aforesaid legacy to your 
 petitioner, and that he may be required to account ac- 
 cording to law, for his proceedings as such executor, 
 and that such further or other proceedings may be had 
 as may be requisite to enforce the payment of your 
 petitioner's legacy, and as shall be just and equitable. 
 
 (Signed), C D. 
 
270 EXECUTOR'S AND ADMINISTRATOR'S GUIDE. 
 
 Rensselaer county, ss: 
 
 C D, being duly sworn, says that the foregoing pe- 
 tition, by him subscribed, is true. 
 
 CD. 
 Sworn before me, etc. 
 
 G-EO. Scott Notary Public, 
 Rensselaer county, E". Y. 
 
 The above may be changed so as to apply to the case 
 of a creditor petitioning. 
 
 No. 61. 
 ORDER THAT EXECUTOR ACCOUNT. 
 At, etc. 
 Present — Hon Surrogate. 
 
 In the matter of the est3,te 
 of 
 , deceased. 
 
 On reading and filing the petition of , 
 
 one of the legatees named in the will of , 
 
 late of the town of .., deceased. 
 
 Ordered, that , the executor of the said 
 
 will, personally, be and appear before the surrogate of 
 
 the county of , at his office in the 
 
 of , on the day of , 
 
APPENDIX — FORMS. 271 
 
 next, at ten o'clock in the forenoon, to render an account 
 of his proceedings, as such executor, or .show cause 
 why an attachment should not issue against him. 
 
 , Surrogate. 
 
 No. 62. 
 PETITION FOR FINAL SETTLEMENT. ^ 
 
 In Surrogate's court, county of Eensselaer : 
 
 To Moses Warren, Esq., Surrogate of Eensselaer 
 county : 
 
 The petition of (Eichard Eoe), of the town of Bruns- 
 wick, in the county of Eensselaer aforesaid, respectfully 
 shows : that your petitioner was duly appointed and 
 qualified, by the surrogate of the county of Eensselaer, 
 as the executor of the last will and testament (or as 
 administrator of all and singular the goods, chattels 
 and credits), of Henry Jones, late of said town of Bruns- 
 wick, deceased, and that more than one year has 
 elapsed since letters testamentary (or of administration), 
 were issued to your petitioner by the surrogate afore- 
 said ; that your petitioner has returned to the surrogate 
 of said county, an inventory of the personal estate of 
 said deceased (and has advertised for claims, in pursu- 
 ance of the order of said surrogate). 
 
 Your petitioner is now desirous of rendering an 
 account of his proceedings as such executor (adminis- 
 trator) as aforesaid, and, therefore, prays that a citation 
 may issue out of, and under the seal of this court, to 
 
272 EXECUTOR'S AND ADMINISTRATOR'S GUIDE. 
 
 be direete,d to the creditors, legatees (next of kin), and 
 all persons interested in the estate of the said-deceased, 
 requiring them to appear as in said citation directed, 
 and attend the final settlement of the accounts of your 
 petitioner as such executor (administrator) as aforesaid. 
 Dated, this 30th day of April, 1862. 
 
 (Signed), Richard Roe. 
 
 No. 63. 
 
 ORDER FOR CITATION TO ATTEND FINAL 
 
 SETTLEMENT. 
 
 At, etc. 
 
 Present — Hon , Surrogate. 
 
 In the matter of the estate 
 
 of 
 
 , deceased. 
 
 Richard Roe, the executor of the last will and testa- 
 
 tamentof , late of , deceased, 
 
 having filed his petition, praying for a final settlement 
 of his accounts as such executor, and more than one year 
 having elapsed since the issue of letters to him. 
 
 Ordered, that a citation issue to the creditors, legatees, 
 and all persons interested in the estate of said de- 
 ceased, requiring thfem to appear on the "...day 
 
 of next, at ten o'clock in the forenoon, to 
 
 attend such final settlement. 
 
 ' , Surrogate. 
 
APPENDIX — FORMS. 273 
 
 No. 64. 
 ACCOUNT OF EXECUTOR OR ADMINISTRATOR. 
 
 [This form may be adapted to any estate or any amounts.] 
 
 A. B., executor (or administrator), in account with the 
 estateof G. D., deceased. 
 1862. De. 
 
 To amount of inventory 
 
 on file $550.00 
 
 Jan. 2. To received, savings bank 
 
 deposit not inventoried 15.50 
 To received, interest from 
 E. F., not included in 
 
 inventory > 6.10 
 
 $571 60 
 
 1860. Contra. Ce. 
 
 July 1. By paid surrogate letters, 
 
 testamentary, &c $16.00 
 
 By expenses to and at 
 
 Troy to obtain letters.. 3.00 
 By paid C. D. witness to 
 
 will 2.00 
 
 By paid E E., witness to 
 
 wills 1.50 
 
 9, By paid J. H. and E. R,, 
 
 appraisers 6.00 
 
 By paid surrogate on fil- 
 ing inventory 50 
 
 Carried forward $28.00 
 
 18 
 
274 EXECUTOR'S AND ADMINISTRATOR'S GUIDE. 
 
 Brought forward $28.00 
 
 July 20. By paid funeral charges 40.50 
 29. By paid support of widow 
 1861. and family for 40 days. 10.50 
 Jan. 3. By paid, surrogate's order 
 to advertise for claims, 
 &c 75 
 
 By paid, printing same.. 6.50 
 
 $85 25 
 
 By loss on sale of inven- 
 toried articles 16.00 
 
 By expenses to Troy three 
 
 times. 4.50 
 
 20.50 
 
 $108.75 
 Showing balance for commis- 
 sions, debts and distribu- 
 tionsof 462 25 
 
 The following claims have been presented against 
 the estate of said deceased : 
 
 Edward Murphy $150 00 
 
 James Jones 16 00 
 
 (Stating them in full). 
 
 The following affidavit is to be included in, or 
 annexed to the account. 
 
 Eensselaer county, ss. : 
 
 A B, of the town of , in the county of 
 
 Eensselaer, being duly sworn, says : That he is execu- 
 
APPENDIX — FORMS. 275 
 
 tor of the last will and testament of (or administrator 
 of all and singular the goods, chattels and credits of) 
 
 C D, late of said town of , deceased, and 
 
 that the foregoing (or annexed) account, is in all respects 
 just and true ; that the same according to the best of 
 his knowledge and belief, contains a full and true 
 account of all his receipts and disbursements, on account 
 of the estate of said deceased, and of all sums of money 
 and property belonging to the estate of the said de- 
 ceased, which have come into his- hands as such ad- 
 ministrator, or which have been received by any other 
 person, by his order or authority, for his use ; and that 
 he does not know of any error or omission in the said 
 account, to the prejudice of any of the parties interested 
 in the estate of the said deceased. 
 
 And he further says, that the sums under twenty 
 dollars, charged in said account, for which no vouchers 
 or other evidence of payment are herewith filed, or for 
 which he has not been able to produce vouchers or 
 other evidences of payment, have actually been paid 
 and disbursed by him as charged. 
 
 (Signed.) A B. 
 
 Sworn before me, this ... 
 day of , 1862 
 
 :i 
 
276 EXECUTOR'S AND ADMINISTRATOR'S GUIDE. 
 
 No. 65. 
 ALLEGATIONS ON CONTEST OF ACCOUNT. 
 
 At, etc. 
 
 In the matter of the estate 
 deceased. 
 
 A B, C D, and E F, next of kin of the above named 
 deceased (or legatees named in the will of said de- 
 ceased,) contesting the account filed by A B, adminis- 
 trator of the estate of said deceased, allege that the 
 said account is erroneous, and that the same should 
 be surcharged by the following items. 
 
 First. That it does not include an item of 
 
 dollars, a claim' against the said executor, for a debt 
 owing to the deceased in his life time. 
 
 Second. That it does not include the proper sum re- 
 ceived or chargeable against said executor for interest. 
 
 That the said account is further erroneous in the 
 following.particulars : 
 
 First. That the item of dollars, for 
 
 funeral expenses is extfavagant, and not according to 
 the station of the deceased. 
 
 Second. That the item of ; paid to 
 
 in that the pretended claim was not due, 
 
 and was barred by the statute of limitations. 
 
 (And so in detail). 
 
 Dated, Dec. 1, 1872. 
 
 James Lansing, 
 for said Contestants. 
 
DOWBR OF WIDOW. 277 
 
 No. 66. 
 
 DECREE ON FINAL SETTLEMENT. 
 
 At a Surrogate's court held in and for the county 
 
 of , at the Surrogate's office, 
 
 in the of , on 
 
 the day of , 1872. 
 
 Present — Hon , Surrogate. 
 
 In the matter of the estate 
 
 of 
 
 , deceased. 
 
 Upon the application of , executor 
 
 named in the will of , late of the 
 
 of , in said county, deceased, the surro- 
 gate on the day of .., last past, 
 
 issued a citation to the creditors, legatees, and all per- 
 sons interested in the estate of said deceased, requiring 
 
 them to appear before him on the day of 
 
 , then next, to attend the final settlement 
 
 of the account of said executor; and on the said last men- 
 tioned day, the said executor appeared iu' person, and, 
 by James Lansing, his counsel, and filed due proof of 
 the publication of said citation in the state paper for 
 
 three months, and in the , a newspaper, 
 
 printed in said county for four weeks, and of personal 
 
 service of the same, on ., and , 
 
 and of service by mail on , and' , 
 
 and it appearing that said , is an infant, 
 
 the surrogate appointed , of the city of 
 
278 EXECUTOR'S AND ADMINISTRATOR'S GUIDE. 
 
 Troy, special guardian for said , to appear 
 
 and take care of his interest in this matter, and the 
 said , appeared as such special guardian. 
 
 The said , executor, as aforesaid filed 
 
 his account as such, duly verified, and the above named 
 
 , appearing in person, and by , 
 
 his counsel, objected to said account, and sundry items 
 in the same, and further claimed that said account 
 
 should be surcharged by the sum of 
 
 dollars, received by said executor as interest, and the 
 issue being so joined, the surrogate, proceeded to ex- 
 amine the same, and take testimony thereon, and the 
 matter was adjourned from time to time, to this day. 
 
 And now having heard the proofs and allegations of 
 the parties, and maturely considered the same, the sur- 
 rogate proceeded to settle the said account according 
 to a summary statement hereto annexed, forming a 
 part of this decree, and to be recorded therewith. 
 
 It is therefore or/iered, adjudged and decreed, that 
 
 the said , as executor, be charged as 
 
 stated in his account with the sum of fifteen hundred 
 dollars, and with the further sum of two hundred dol- 
 lars interest, not stated in his account, in all the sum 
 of seventeen hundred dollars. 
 
 That he be (sredited with the sum of three hundred 
 and fifty dollars paid by him for debts of his testator, and 
 for expenses of administration ; with the sum of sixty- 
 seven dollars and fifty cents commissions, and with ten 
 dollars expenses of this proceeding. 
 
 It is further ordered, that he pay to , 
 
 counsel for him in this proceeding, the sum of twenty 
 
APPENDIX — FORMS. 279 
 
 dollars, and to , counsel for the said 
 
 , twenty dollars, and that he distribute 
 
 the balance remaining in his hands, to wit, the sum of 
 twelve hundred and thirty-two dollars and fifty cents, 
 as follows : 
 
 That he pay to , for his legacy, six 
 
 hundred dollars, and to , for his legacy, 
 
 six hundred dollars, and the remainder, two hundred 
 and thirty-two dollars to , residuary lega- 
 tee named in said will. 
 
 And it is further ordered, that, it iappearing that 
 , above named, is an infant, the ^id exe- 
 cutor may pay the above legacy to said , 
 
 to , the general guardian of said , 
 
 on receiving proof, that the said , has 
 
 given bonds approved by the surrogate, for the faithful 
 application of the same. 
 
 In testimony whereof, we have caused the seal 
 of our said court to be hereunto affixed, 
 [l.s.] and the same to be subscribed by our 
 
 surrogate. 
 
 Witness, , surrogate, the day and 
 
 year first above written. 
 
 , Surroga te. 
 
 Summary Statement Referred to, in the Foregoing Decree. 
 
 The executor is charged by 
 
 his account with "^$1500 00 
 
 His account shall be surcharged by the sum 
 
 of interest received by him 200 00 
 
 Carried forward, $1700 00 
 
280 EXECUTOR'S AND ADMINISTRATOR'S GUIDE, 
 
 Brought forward, $1700 00 
 
 He is credited with debts and ex- 
 penses of administration paid 360 00 
 
 With commissions 67 50 
 
 With his expenses on this accounting 10 00 
 
 He shall pay his counsel 20 00 
 
 He shall pay counsel for 
 
 20 00 467 50 
 
 Showing for distribution the sum of $1233 50 
 
 , Surrogate. 
 
 No. 67. • 
 EELEASE FOE DISCHAEGE OF DECEEE. 
 Surrogate's court, county : 
 
 In the matter of the estate 
 
 of 
 
 , deceased. 
 
 Whereas, by a decree of the surrogate of the county 
 
 of , in this matter, entered on the 
 
 day of 18T3, executor of 
 
 the will of the above named deceased, was ordered and 
 directed to pay to the undersigned, a legatee named in 
 
 said will, the sum of dollars, now I do 
 
 hereby acknowledge the receipt of the said sum from 
 s^i'i , and release him from all claims' 
 
DOWEE OF WIDOW. 281 
 
 therefor, and request the surrogate of said county, to 
 enter this as a discharge of said decree. 
 
 Witness my hand, this day of , 1873 
 
 (Signed), 
 
 Rensselaer county, ss : 
 
 On this day of , 1873, before 
 
 me personally came , to me known to be 
 
 the same person described in, and who executed the 
 foregoing instrument and acknowledged that he exe- 
 cuted the same for the usee and purposes therein men- 
 tioned. 
 
 (Signed), : 
 
 Justice of the Peace. 
 
 No. 68. 
 
 PETITION FOK MOETGAGE, LEASE OR SALE OF 
 KEAL ESTATE. 
 
 Surrogate's court, Rensselaer county : 
 
 In the matter of the estate 
 
 of 
 
 A B, deceased. 
 
 To Moses "Warden, Esq., Surrogate of the county of 
 Rensselaer: 
 
 The petition of C D, executor (or administrator) 
 of the will of (or of the goods, etc., of) A B, late 
 
282 EXECUTOR'S AND ADMINISTRATOR'S GUIDE. 
 
 of the town of Brunswick, in the county of Rensse- 
 laer, deceased, shows, that your petitioner h3>s made 
 and filed an inventory of the personal property of the 
 said A B, deceased, according to law, and has dis- 
 covered the same to he insufficient to pay the debts of 
 the deceased. ^ 
 
 That the amount of the personal property of the de- 
 ceased, which has come to the hands of your petitioner, 
 amounts to the sum of $578.00. 
 
 ' That the outstanding debts of the deceased, which 
 remain unpaid and- which are justly due and owing, 
 and which are not secured by judgment or mortgage, 
 or expressly charged on the real estate of the de- 
 ceased, as near as the same can be ascertained, amount 
 to the sum of $1,050.00. , 
 
 And your petitioner verily believes and states the 
 fact to be, that he has proceeded with reasonable 
 diligence in converting the personal property of said 
 deceased into money, and applying the same to the 
 payment of debts. 
 
 That the deceased died seized of the following real 
 estate, situated in the county of Rensselaer aforesaid, 
 valued at the sum respectively affixed to each lot or 
 parcel, and occupied or not occupied as stated in re- 
 spect to each of the several lots or parcels ; that is to 
 say. All (stating fully by metes and bounds). 
 
 And your petitioner further shows, that S B, is the 
 widow, and A B, C B, and E B, of the town of 
 Brunswick, are children and heirs at law of the said 
 A B, deceased, of the age of twenty-one years and 
 upwards. And that J B, and K B, are minors of the 
 
APPENDIX — FORMS. 283 
 
 age of fourteen years and upwards, and L B and M B, 
 are minors, and are also children and heirs at law of 
 the deceased, and under fourteen years of age. 
 
 Tour petitioner therefore prays that authority may 
 be granted to him by the said surrogate (pursuant to 
 the statutes of the state of 'New York in such case 
 made and provided), to mortgage, lease or eiell, so 
 much of the real estate of the deceased as shall be ne- 
 cessary to pay the debts of the deceased. 
 
 And your petitioner will ever pray, etc. 
 
 (Signed), C D. 
 
 State of New York, 1 
 Eensselaer county, i 
 
 C D, being duly sworn, deposes and says, that the 
 above petition, by him subscribed, is true, to the best 
 of the knowledge, information or belief of the depo- 
 nent. 
 
 CD. 
 
 Subscribed and sworn this \ 
 
 day of ,1862, before me. J 
 
 M. "Warren, Surrogate. 
 
284 EXECUTOR'S AND ADMINISTEATOR'S GUIDE. 
 
 No. 69. 
 OEDER TO SHOW CAUSE. 
 At, etc. 
 Present — Hon , Surrogate. 
 
 In the matter of the real estate 
 of 
 , deceased. 
 
 On reading and filing the petition of ■ C D, the exe- 
 cutor of the last will and testament of A B, late of the 
 
 town of , deceased, praying that authority 
 
 may be given to him by said surrogate, to mortgage, 
 lease or sell so much of the real estate of the said de- 
 ceased, as shall be necessary to pay his debts. 
 
 Ordered, that all persons interested ip the said estate 
 
 appear before the surrogate of the county of , 
 
 at his office ia the .' of on 
 
 the day of , next, to show cause 
 
 why authority should not be given to said executor to 
 mortgage, lease or sell so much of the real estate of 
 the said deceased, as shall be necessary to pay his 
 debts ; and, it is further ordered, that all persons hav- 
 ing claims against the said deceased, may exhibit and 
 prove the same at the time and place aforesaid. 
 
 , Surrogate. 
 
APPENDIX — FORMS. 285 
 
 No. 70. 
 
 OilDER FOE APPOINTMENT OF SPECIAL 
 GUAEDIAN. 
 
 At etc. 
 
 Present — Hon , Surrogate. 
 
 In the matter of the real estate 
 of 
 , deceased. l 
 
 An order having heretofore been made in this matter, 
 
 that all persons interested in the .estate of , 
 
 late of the town of , deceased, show 
 
 cause on this day why authority should not be given 
 to C D, executor of the will of said deceased, to mort- 
 gage, lease or sell, the real estate of said deceased, 
 and on reading and filing proof of the due service of 
 
 said order on , and , among 
 
 others, and it being suggested that said • , 
 
 and , are minors; 
 
 Ordered, that , of the of 
 
 , be, and he is hereby appointed special 
 
 guardian of said minors for the sole purpose of appear- 
 ing for, and taking care of their interests in this pro- 
 ceeding to mortgage, lease, or sell the real estate of 
 the said deceased. 
 
 ,Surrogate. 
 
286 EXECUTOR'S AND ADMINISTRATOR'S GUIDE. 
 
 No. 71. 
 
 BOND ON SALE OF EEAL ESTATE. 
 
 Know all men by these presents : Tifat we, John 
 
 Doe, executor of the will of , deceased. 
 
 A B and C D, of the city of Troy, in the county of 
 Rensselaer, are held and firmly hound unto the people 
 of the state of !N"ew York, in the sum of (double the 
 value of the real estate to be sold), lawful 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, firmly by these 
 presents. 
 
 Sealed with our seals, and dated this \ 
 . tenth day of September, A.D. 1872. J 
 
 Whereas an application for authority to sell the real 
 
 estate of , deceased, to pay his debts, is 
 
 now pending before the surrogate of the county of 
 Eensselaer, on the petition of the above bounden John 
 Doe, as executor of the will of said deceased, now 
 Therefore the condition of this obligation is such, that 
 if the said John Doe, in case the said surrogate shall 
 grant an order of sale, of said real estate, or any part 
 thereof, shall pay all the money arising from such sale, 
 after deducting the expenses thereof, and shall deliver 
 all securities taken by him on such sale to the said 
 surrogate, within twenty da^s after the same shall have 
 
. APPENDIX — FORMS. 287 
 
 been received and taken by him, then this obligation 
 
 to be void, otherwise to remain in full force and virtue. 
 
 (Signed), 
 
 JohS Doe, [l.s.] 
 
 A B, [L.S.] 
 
 C D, [L.S.] 
 
 Add acknowledgment and justification of sureties. 
 
 No. 72. 
 
 ORDER FOR SALE OF REAL ESTATE. 
 
 At, etc. 
 
 Present — Hon .., Surrogate. 
 
 In the matter of the real estate 
 
 of 
 
 , deceased. 
 
 C D, the executor of the last will and testament of 
 
 , of deceased, having lately 
 
 presented his petition to the surrogate of the county 
 
 of for authority to mortgage, lease or 
 
 sell so much of the real estate of the said deceased as 
 shall be necessary to pay the debts of the deceased, 
 and such proceedings having been therefore had, that 
 the said surrogate is satisfied that the said executor 
 has fally complied with the several provisions of the 
 statutes, that the debts outstanding against the deceased 
 as far as the same can be ascertained, and which are 
 
288 EXECUTOR'S AJSTD ADMINISTRATOR'S GUIDE. 
 
 valid and subsisting, and are not secured' by judgment, 
 mortgage or other lien, on the real estate of the said 
 
 decaased amounts to the sum of dollars, 
 
 that the personal estate of the said deceased is insufla- 
 cient to pay his debts, and that the whole of said per- 
 sonal estate, which could have been applied tb the 
 payment of "the debts of the deceased has been applied' 
 to that purpose ; and whereas it has been made to 
 appear to said surrogate, that the moneys required to 
 be raised, cannot be raised by mortgage or lease, ad- 
 vantageously to the said estate, and the said executor 
 having, with two sureties executed a bond in the 
 manner required by law which is duly acknowledged, 
 approved and filed. It is ordered and adjudged, 
 that the said executor sell at public vendue, the 
 following described real estate of the said deceased 
 to wit: (describe the several parcels). It is further 
 ordered that the several parcels be sold in the order in 
 which they are above described and that on such sale 
 the said executor be authorized to give such length of 
 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 shall 
 secure the moneys for which credit may be given, by 
 a bond of the purchaser, and by a mortgage upon the 
 premises sold. And it is further ordered that before any 
 deed or deeds of the premises sold shall be executed, 
 the said executor 'make a return of the proceedings 
 had on this order, to the said surrrogate to the end that 
 the said surrogate may examine the said proceedings, 
 and the fairness and the legality of the said sale. 
 
 ■ , Surrogate. 
 
APPENDIX — FOEMS. 289 
 
 No. 72. 
 NOTICE OF SALE. 
 
 Executor's sale of Real Estate. 
 
 In pursuance of an order of the surrogate of the 
 county of Rensselaer, the undersigned, the executor 
 
 of the last will and testament of , late of 
 
 the of , deceased will sell at pub- 
 lic vendue on the day of , at the 
 
 front door of the court house in the of 
 
 at ten o'clock in the forenoon of that day, the following 
 described real estate, to wit (describe the parcels); 
 upon said premises are a farm house, and the ordinary 
 farm buildings. 
 
 Dated, Dec. 1, 1872. 
 
 , Surrogate. 
 
 No. 73. 
 EEPOKT OE SALE. 
 Surrogate's court, Rensselaer, county ; 
 
 In the matter of the real estate 
 
 of 
 
 A B, late of the of 
 
 , deceased. 
 
 In pursuance of a decretal order of the surrogate 
 
 of the county of Rensselaer, bearing date the 
 
 day of , 1872, I, the subscriber, execu- 
 
 19 
 
290 EXECtTTOR'S AND ADMINISTRATOR'S GUIDE. 
 
 tor of the last will and testament of John Doe, late of 
 
 the of , in said county, did 
 
 on the .....of , 1872, at the 
 
 front door of the court house, in the city of Troy, in 
 said county, at 10 o'clock, in the forenoon, sell at pub- 
 lic vendue, the whole of the premises in said order de- 
 scribed, to ,for the sum of , 
 
 dollars, which was the highest sum bid for the same. 
 
 And I further report, that before the said sale, I 
 caused notice of the time and place thereof, to be 
 regularly published, once a week, for six weeks, succes- 
 sively in , a newspaper printed in said 
 
 county, and like notices to be posted for six weeks in 
 
 , thereof, the most public places in the town of 
 
 , and further, that said sale, was legally 
 
 made, and fairly conducted, and that a greater sum 
 could not be obtained for said premises. 
 
 Dated, Nov. 20, 1872. 
 
 (Signed), A B, Executor. 
 Addjurat. 
 
 No. 74. 
 OilDEK CONMEMING SALE. 
 At, etc. 
 Present — Hon , Surrogate. 
 
 In the matter of the real estate 
 
 of 
 
 deceased. 
 
 On reading and filing the return of 
 
 executor of the will of ,late of the 
 
APPENDIX — FOBMS. 291 
 
 of , deceased, and the proofs accompany- 
 ing the same, and it appearing therefrom that the said 
 
 executor, did, on the day of , 
 
 1872, in obedience to the former order of this court, in 
 
 this matter bearing date the day of 
 
 last, and in pursuance of the statute in such case, made 
 
 and provided, sell at public vendue, to one , 
 
 for the sum of dollars, the lands and 
 
 tenements in the said order mentioned, upon the terms 
 and conditions particularly mentioned in said return ; 
 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 
 sale be, and it is hereby confirmed; and it is further 
 ordered, that a conveyance of the premises so sold, be 
 made and executed by the said executor, to the said 
 
 , upon his complying with the terms of 
 
 sale, on his part to be performed. 
 
 ., Surrogate. 
 
 No. 75. 
 DEED ON SALE. 
 
 This indenture, made this day of , 
 
 one thousand eight hundred and seventy , between 
 
 as executor of the last vdll and testa- 
 ment of , late of the of 
 
 in the county deceased, party of the 
 
 first part and , of the of 
 
292 EXECUTOR'S AND ADMINISTRATOR'S GUIDE. 
 
 • •• , in the county of , party of 
 
 the second part ; whereas at a surrogate's court, held 
 in and for the county of , at the surro- 
 gate's office in the of on the .,. day 
 
 of , one thousand eight hundred and 
 
 seventy , before, :...,. surrogate of said 
 
 county, a certain decretal order was fiiade for the sale 
 •of the real estate of the said deceased, and which said 
 order is in the words and figures following, to wit : 
 (insert order at length). 
 
 And, whereas, in obedience to said order, the said 
 
 party of the first part did on the day of 
 
 , 187.., sell atpublic vendue the whole of 
 
 the premises in said order mentioned, to the said 
 
 party of the second part for the sum of 
 
 dol],ars, and did thereupon make return of his proceed- 
 ings in the premises to the surrogate of said county of 
 
 , and there was thereupon made an order 
 
 in the words and figures following, to wit : (insert order 
 confirming sale). 
 
 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. N^ow, therefore,"thi8 in- 
 denture witnesses, that the said party of the first part, 
 as executor as aforesaid, for and in consideration of 
 
 the sum of dollars, to him in hand paid 
 
 by the party of the second part, has granted, bargained 
 and sold, and by these presents does grant, bargain 
 and sell unto the said party of the second part, his 
 heirs and assigns forever the lands and tenements' in 
 said order mentioned, described as follows : (description) 
 
APPENDIX — FORMS. 293 
 
 together with all and singular the hereditaments and 
 appurtenances thereunto belonging, or in any way 
 appertaining, and the reversion and reversions, re- 
 mainder 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, as 
 executor as aforesaid, has hereunto set his 
 hand and seal, the day in this indenture first 
 above written. 
 
 , [L. s.] 
 
 Rensselaer county, ss : 
 
 On this day of , 187.., before 
 
 me personally came , to me known to be 
 
 the executor of the last will and testament of 
 
 deceased, and the person described in and who exe- 
 cuted the foregoing conveyance, and acknowledged 
 that he executed the same, as such executor, for the 
 uses and purposes therein mentioned. 
 
 AB, 
 Justice of the Peace. 
 
294 EXECUTOR'S AND ADMINISTRATOR'S GUIDE. 
 
 No. 76. 
 NOTICE TO WIDOW TO ELECT. 
 
 * 
 
 1 
 
 In the matter of the real estate 
 of 
 
 To , , widow of said deceased : 
 
 Toil are hereby notified and required to elect, 
 whether you will accept such sum in gross, as shall be 
 deemed upon the principles of law, applicable to an- 
 nuities, a reasonable satisfaction of your claim for 
 dower, in the lands of the above deceased, in lieu of 
 your dower ; and you are notified, so to elect before 
 the surrogate of the county of Rensselaer, at his office 
 
 in Troy, on the day of , 1872, 
 
 (the day for distribution of proceeds). 
 Dated, November 20, 1872. 
 
 AB, 
 Executor of the will of said deceased. 
 
 No. 77. - 
 CONSENT OF WIDOW TO ACCEPT A SUM IN G-EOSS. 
 
 In the matter of the real estate 
 
 of 
 deceased. 
 
 Whereas, certain lands and tenements of the above 
 named deceased, in which the undersigned is entitled 
 
APPENDIX — FORMS. 295 
 
 to dower, as the widow of said deceased, have been 
 recently sold by virtue of an order of the surrogate of 
 
 county, in this matter, and which said 
 
 lands and tenements are bounded and described as 
 follows : (description as in order for sale). 
 
 And whereas, the moneys arising from the said sale 
 have been brought into the said surrogate's court for 
 distribution : now, therefore, Know all men by these 
 presents, that I, A B, the widow of the said deceased, 
 do by these presents, consent to accept in lieu of my 
 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 ,' 
 
 1872. 
 
 A B, [L.S.] 
 
 Rensselaer county, ss : 
 
 On this day of , 1872, before 
 
 me personally came, A B, to me known to be the same 
 person described in and who executed the foregoing 
 instrument, and acknowledged that she executed the 
 said instrument for the uses and purposes therein men- 
 tioned. 
 
 L. W. Rhodes, 
 Com'r of Deeds, Troy, N. Y. 
 
296 EXECUTOR'S AND ADMINISTRATOR'S GUIDE. 
 
 No. 78. 
 
 ANNUITY TABLE AND EULE. 
 
 
 No. of years 
 
 
 No. of years 
 
 
 [^0. of years 
 
 
 No. of yeara 
 . purcnase. 
 
 Age. 
 
 parcHase. 
 
 Age. 
 
 ' purchase. 
 
 Age, 
 
 purchaBe. 
 
 Age 
 
 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 
 
 1^, 
 
 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 
 
 n, 
 
 5,479 
 
 
 
 24, 
 
 12,132 
 
 48, 
 
 9,707 
 
 72, 
 
 5,241 
 
 
 
 Rule for Computation. 
 
 Calculate the interest, at six per cent, for one year, 
 upon the sum to the income of which the person is 
 entitled, and multiply this interest hy the number of 
 years purchase set opposite the person's age in the 
 
■ APPENDIX— FORMS. 297 
 
 table, and the product is the gross value of the life 
 estate of such person. 
 
 Example. 
 
 Suppose a widow's age is forty, and she is entitled 
 to dower in real estate worth $1500; one-third of this 
 is $500 ; interest on |500, one year, at six per cent, is 
 $30 ; multiply this by 10,705, the number of years 
 purchase set opposite her age, and you have $321.15 
 as the gross value of her dower right. 
 
 No. 79. 
 
 CERTIFICATE OF DECREE TO BE DOCKETED. 
 
 Otsego county, Surrogate's court. 
 
 In the matter of the estate 
 of 
 , deceased. 
 
 I, E. G. Card, surrogate of the county of Otsego, 
 
 do hereby certify that on the day of 
 
 187.., a decree was made by me in this matter in favor 
 
 of 1 , residing in the town of 
 
 in said county, by occupation a " seamstress," a 
 
298 EXECUTOE'S AND ADMINISTRATOR'S GUIDE. 
 
 creditor of , late of the town of 
 
 in said county, deceased against , residing 
 
 in the town of , in said county, by occu- 
 pation a rail road employee, as administrator of the 
 goods, chattels and credits of said , de- 
 ceased, directing the payment of the said , 
 
 of the said administrator, as aforesaid, 
 
 to the said , of the sum of 
 
 dollars and cents for the debt, due to the 
 
 said from the said de- 
 ceased, and the sum of twenty -five dollars for her costs 
 and disbursements, making in the whole the sum of' 
 dollars and cents. 
 
 Witness iaj hand and seal of office, at the village of 
 
 [l. s.] ,this day of , 
 
 1872. 
 
 (Signed), , Surrogate. 
 
 No. 80. 
 
 EXECUTION ON DECKEE OF gURKOGATE TO BE 
 DOCKETED. 
 
 To the sheriff of the county of Greeting: 
 
 Whereas, on the 4ay of 187.., 
 
 surrogate of the county of 
 
 and the surrogate's court of said county, of , 
 
APPENDIX — FORMS. 299 
 
 duly mad« a decree for, and directing the payment 
 
 by residing in in said 
 
 county, by occupation a rail road employee, the ad- 
 administrator of the goodsj chattels and credits of 
 
 deceased, to , of the town 
 
 of , in said county, by occupation a seam- 
 stress, of the sum of dollars and 
 
 cents for a debt due to the said , from 
 
 the said deceased, and the sum of dollars 
 
 and cents, for her costs and expenses in the 
 
 proceeding before said surrogate, making in the whole 
 
 the sum of dollars and cents; 
 
 and after such decree was made by said surrogate, to 
 
 wit on the day of ,, 187.., he 
 
 made out a certificate stating the names of the parties 
 against and in favor of whom the decree was made and 
 their respective occupations and places of residence in. 
 which he stated the amount of such debt and costs, 
 directed to be paid by such decree; and whereas on 
 
 said day of , such certificate was 
 
 filed with the clerk ofthe county of , and 
 
 the same was, on said day of , 
 
 187..., entered and docketed in the book required by 
 law for the docketing of judgments : and whereas, there 
 
 is now acutally due on said decree, the sum of 
 
 dollars and cents, with interest thereon 
 
 from the day of 187... Tou, are therefore com- 
 manded and required to make said sum of 
 
 dollars, and cents,, out ofthe goods, chattels 
 
 and personal property of the said , in 
 
^ 300 EXECUTOE'S AND ADMINISTRATOR'S GUIDE. 
 
 your county, and if sufficient thereof cannbt be found 
 in your county, then out of the real property in your 
 
 county of which the said , was seized and 
 
 belonging to him on the said day of ,, 
 
 187.., the day on which the said decree was docketed 
 in your county, or at any time thereafter in whose 
 hands soever the same may be, and that you return 
 this exec ution with your proceedings thereon to the 
 clerk of the county of Otsego, in sixty days after the 
 receipt of the same. 
 
 Dated, 
 
 (Signed), , Attorney. 
 
 Indorsement on above. 
 
 against 
 
 Execution to Otsego county, 
 ...•. , attorney. 
 
 Levy and collect dollars with.interest 
 
 from the day of , 187.., besides 
 
 your fees and poundage and return this execution in 
 sixty days after its receipt by you to the clerk of the 
 
 county of 
 
 (Signed), Attorney. 
 
APPENDIX — FORMS. 301 
 
 No. 81. 
 
 PETITION FOE ASSIGNMENT OF BOND OF 
 ADMINISTKATOR. 
 
 Surrogate's court, county of . 
 
 In the matter of the estate 
 
 of 
 , deceased. 
 
 The petition of , of the town of , 
 
 in said county of , respectfully shows : 
 
 That heretofore a decree was made in this court, on 
 
 the day of , , 187.., in favor of your 
 
 petitioner against , administrator of the 
 
 goods, chattels and credits of , late of 
 
 the town of , in said county, deceased, 
 
 requiring and directing the said , to pay 
 
 to your petitioner the sum of dollars, 
 
 and cents, for the debt due from said 
 
 deceased to your petitioner, and the further sum of 
 
 dollars, and cents, for her 
 
 costs of the proceedings, and thereupon the surrogate 
 duly made a certificate of said decree, as required by 
 law, and the same certificate was duly filed in the 
 
 oflice of the clerk of the county of , and 
 
 was docketed in the book required by law to be kept 
 
 for the docketing of judgments, on the day of 
 
 , 187.. ; and thereupon an execution was 
 
302 EXECUTOR'S AND ADMINISTEATOE'S GUIDE. 
 
 duly issued upon such decree certified as aforesaid to 
 the sherijff of the county of ., , which exe- 
 cution has been duly returned by said sheriff, wholly 
 unsatisfied. 
 
 Your petitioner begs leave to refer to such certificate 
 and execution, certified copies whereof are hereto 
 annexed. 
 
 Your petitioner, therefore, prays that the bond given 
 
 by the said , upon the granting to him 
 
 of letters of administration of the goods, chattels and 
 
 credits of said , deceased, may be assigned 
 
 by said surrogate to your petitioner, to the end, that 
 
 your petitioner's claims against the said , 
 
 may be enforced and collected. 
 
 And your petitioner will ever pray, etc. 
 
 Dated, 
 
 (Signed), 
 
 Rensselaer county, ss, : 
 
 , being duly sworn, says, that she is 
 
 the petitioner named in the foregoing petition, and 
 that "she has read the same, and knows the contents 
 thereof, and that the same is true, of her own know- 
 ledge, except as to the matters which are therein stated 
 on information and belief, and as to those matters, she 
 believes it to be true. 
 
 (Signed), , 
 
 Sworn before me, this -j 
 
 day of ,187... J 
 
APPENDIX — FORMS. 303 
 
 No. 82. 
 
 ORDEE ASSIGNING BOND OF ADMINISTRATOR. 
 
 At a Surrogate's court, held in and for the 
 
 county of , at the surrogate's 
 
 office on the , of , 
 
 on the day of , 187... 
 
 Present — Hon , Surrogate. 
 
 In the matter of the estate 
 
 of 
 , deceased. 
 
 On reading and filing the petition of , 
 
 showing, that heretofore a decree was made in her 
 
 favor, on the day of , 187..., in 
 
 this court directing ....* , administrator of 
 
 the goods, chattels and credits of , de- 
 ceased, to pay to the said , the sum of 
 
 dollars and cents, and 
 
 the further sum of dollars and 
 
 cents, costs of the proceedings ; that a certificate of 
 
 said decree, was on the day of 
 
 187.., duly docketed in the office of thfe county clerk, 
 
 of the county of , and that an execution 
 
 was duly issued thereon to the sheriff" of the county of 
 
 , which said execution has been returned 
 
 by said sheriff", wholly unsatisfied. Now, on motion 
 of , Esq., of counsel for the petitioner, it 
 
304 EXECUTOR'S AND ADMINISTRATOR'S GUIDE. 
 
 is ordered, that the bond, given by the said , 
 
 as principal, with , and , as 
 
 sureties, upon the appointment of the said - . , 
 
 as administrator of the goods, chattels and credits of 
 
 , deceased, dated and filed in the office 
 
 of the surrogate of this county, on the day of 
 
 , 186.., be, and the sameis hereby assigned 
 
 to the said , petitioner. 
 
 (Signed), 
 
 Surrogate. 
 
 No. 83. 
 
 PETITION OF CKEDITOR FOR ORDER THAT AD- 
 MINISTRATOR BE ORDERED TO MORTGAGE, 
 LEASE, OR SELL REAL ESTATE. 
 
 Surrogate's court, county of., 
 
 To Hon surrogate of the county 
 
 of 
 
 The petition of of the of 
 
 , respectfully shows as follows: 
 
 Your petitioner is a creditor of , late 
 
 of the of deceased, intestate: said 
 
 intestate died indebted to your petitioner in the sum 
 
 of : dollars and interest, upon a promissory 
 
 note, made by him to your petitioner, or order, dated 
 
 the day of , 1870, and payable 
 
 ninety days after date. Said claim is justly due to 
 your petitioner, no payments have been made thereon, 
 
APPENDIX — FORMS. 305 
 
 and there are no offsetts against the same to the know- 
 ledge of your petitioner, and the same is not secured 
 by judgment, mortgage upon, or expressly charged on 
 the real estate of the said deceased. 
 
 Letters of administration of the goods, chattels and 
 
 credits of the said deceased, were duly 
 
 issued by the surrogate of the county of , 
 
 on the day of , 1870, to 
 
 of the , and the same still remain in full 
 
 force as your petitioner is informed and believes. 
 
 On the day of , last past, the 
 
 said rendered an account of his proceed- 
 ings as such administrator, which said account has 
 been settled before the said surrogate, and it appears 
 from the said account, upon such settlement, that 
 there are not sufficient assets to pay the debts of the 
 said deceased. 
 
 The said intestate died seized of the following de- 
 scribed parcels of real estate, valued at the sums re- 
 spectively affixed to each parcel, and occupied or not 
 occupied as hereafter stated as to each ; that is to say 
 (describe each parcel and names of occupants and 
 value). 
 
 is the widow, and and 
 
 , are the heirs at law of said 
 
 deceased, and all reside in the of. 
 
 Your petitioner, therefore, prays that the surrogate 
 will grant an order for the said , admin- 
 istrator as aforesaid, to show cause why he should not 
 be required to mortgage, lease or sell the real estate of 
 
 the said deceased, for the payment of his debts, and 
 20 
 
306 EXECUTOR'S AND ADMINISTEATOB'S GUIDE. 
 
 that such other or further proceedings, according to 
 law, may be thereupon had, as may tend to the relief 
 of your petitioner and the payment of his claim afore- 
 said. 
 Dated, December 1, 1872. 
 
 (Signed), 
 
 county, ss: 
 
 being duly sworn, says that the fore- 
 going petition, by him subscribed, is true of his own 
 knowledge, accept as to the matters which are therein 
 stated on information and belief, and as to those matters 
 he believes it to be true. 
 
 Sworn, etc. 
 
 (Signed), 
 
 No. 84. 
 OKDEE THAT ADMINISTKATOK SHOW CAUSE. 
 At, etc. 
 
 Present — Hon Surrogate. 
 
 In the matter of the real estate 
 of 
 
 On reading and filing the petition of . 
 
 a creditor of , late of the 
 
 of , deceased, intestate. 
 
APPENDIX — FORMS. 307 
 
 r dered, that , administrator of the 
 
 goods, chattels and credits of , late of the 
 
 of , deceased, intestate, 
 
 personally be and appear before the surrogate of the 
 
 county of , at his office, in the 
 
 of , on the day of 
 
 next, at ten o'clock in the forenoon, then and there to 
 show cause why he should not be required to mortgage, 
 lease or sell the real estate of said deceased, for the 
 payment of his debts. 
 
 , Surrogate. 
 
 No. 85. 
 OKDEK THAT PEKSONS INTEKESTED SHOW CAUSE. 
 At, etc. 
 
 Present — Hon , Surrogate, 
 
 In the matter of the real estate 
 of 
 , deceased. 
 
 An order having been heretofore made, on the appli- 
 cation of , of the of , 
 
 a creditor of , late of the 
 
 of , deceased, intestate, requiring , 
 
 the administrator of the goods, chattels and credits of 
 said deceased, personally to be, and appear before our 
 surrogate of the county of , on this day. 
 
308 EXECUTOE'S AND ADMINISTRATOR'S GUIDE. 
 
 to show cause why he should not he required to mort- 
 gage, lease or sell the real estate of the said deceased, 
 for the payment of his dehts, and the said administrator 
 having appeared, and having shown no cause to the 
 contrary; 
 
 Ordered, that all persons interested in the estate of 
 said deceased, appear before the surrogate of the county 
 
 of , at his office in the of 
 
 , on the day of , 
 
 1872, at ten o'clock in the forenoon, then and there to 
 show cause why authority should not be given to the 
 said administrator to mortgage, lease or sell, so much 
 
 of the real estate of the said , deceased, 
 
 as shall be necessary to pay his debts. It is further 
 ordered, that all persons having claims against said 
 deceased, may appear and exhibit, and prove such 
 claims at the time aforesaid, before said surrogate. 
 
 , Surrogate. 
 
 No. 86. 
 
 ORDER FOR SALE ON THE APPLICATION OF A 
 CREDITOR. 
 At, etc. 
 
 Present — Hon , Surrogate. 
 
 Title, (as in No. 84), 
 
 An order having been heretofore made by the surro- 
 gate of the of , on the ap- 
 plication of , of the of 
 
APPENDIX — FORMS. 309 
 
 ^ , a creditor of , late of the 
 
 of , deceased, intestate, requiring 
 
 , the adnainistrator of the goods, chattels 
 
 and credits of said intestate, to appear before the said 
 
 surrogate, on the day of last, to 
 
 show cause why he should not be required to mortgage, 
 lease or sell the real estate of said intestate, for the 
 payment of his debts, and the said administrator, hav- 
 ing appeared, and shown no cause to the contrary; 
 and thereupon, the said surrogate having made a fur- 
 ther order, directing all persons interested in the estate 
 
 of said , deceased, to appear before him 
 
 on this day, to show cause why authority should not 
 be given to the said administrator to mortgage, lease 
 
 or sell so much of the real estate of the said , 
 
 deceased, as shall be necessary to pay his debts, and 
 on reading and filing satisfactory proof by affidavit, 
 of due publication of said order, and of the due service 
 thereof, on every person in occupation of the premises 
 of which a sale is desired, on the widow and heirs-at- 
 law of the said deceased, and the said administrator 
 
 having appeared this day, in person and by , 
 
 his proctor, and , and , 
 
 heirs-at-law, having also with the said , 
 
 petitioner, appeared, and the proper proceedings, in 
 due form of law, having been thereupon had, and the 
 surrogate, upon due examination, being satisfied, that 
 the said administrator has fully complied with the pro- 
 visions of the statute, concerning the power and duties 
 of executors and administrators in relation to the sale 
 and disposition of the real estate of the testator, or 
 
310 EXECUTOR'S AND ADMINISTRATOR'S GUIDE. 
 
 intestate; that the debt of the said ».., and 
 
 other debts presented and proved before the said sur- 
 rogate, and which the said surrogate has adjudged 
 vahd and subsisting against the estate of the said de- 
 ceased, and for the purpose of satisfying, which appli- 
 cation is made to mortgage, lease, or sell, the real estate 
 of the said deceased, are justly due and owing, and 
 that they are not secured by judgment, or mortgage, 
 or expressly charged on the real estate of the said de- 
 ceased, and that the same amount to 
 
 dollars, and cents, and that the personal 
 
 estate of the said deceased is insufficient for the pay- 
 ment of such debts, and satisfactory evidence having 
 been given, that the said administrator has proceeded 
 with reasonable diligence in converting the personal 
 property of the said deceased into money, and applying 
 the same to the payment of debts ; and having inquired 
 whether sufficient moneys for the payment of such 
 debts aforesaid, can be raised by mortgage or lease of 
 the property of the deceased, or any part thereof; and 
 it appearing that the moneys required cannot be raised 
 by mortgage or lease, advantageously to the estate of 
 the said deceased, and the said , admin- 
 istrator as aforesaid, having executed a bond to the 
 people of this state, with sufficient sureties, approved by 
 the surrogate, in the penalty and with the conditions 
 prescribed by the statute, which said bond is filed with 
 
 said surrogate, it is ordered that the said , 
 
 administrator aforesaid, sell the following described 
 real estate, whereof the said intestate died seized, to 
 enable him to pay the debts aforesaid, that is to say. 
 (Description). 
 
APPENDIX — FOEMS. 311 
 
 And itis further ordered, that the said administrator 
 may give to the purchaser at such sale, of any of the 
 said real estate, a credit, not exceeding three years, for 
 not more than one half of the purchase money of such 
 rfeal estate, purchased by him, to be secured by a bond 
 of said purchaser, and a mortgage upon the premises 
 to him sold. And it is further ordered, that the said 
 administrator make returns of all sales made by virtue 
 of this order. 
 
 In testimony whereof, the said surrogate has 
 hereunto affixed his name, and the seal 
 [l.s.] of this court, the day and year first above 
 written. 
 
 , Surrogate. 
 
 No. 87. 
 
 OEDBR THAT EXECUTOE OR ADMINISTRATOR 
 MAKE AND PILE BOND FOR SALE. 
 
 At, etc. 
 
 In the matter of the real estate 
 of 
 
 It appearing by the records of this court, that the 
 
 real estate of the deceased, is of the value of 
 
 dollars, and that it is necessary to have the same sold 
 for the payment of the debts of the said deceased, it is 
 
312 EXECUTOR'S AND ADMINISTRATOB'S GUIDE. 
 
 ordered, that , administrator of the goods, 
 
 chattels and credits of said deceased, in conjunction 
 with two sufficient sureties to be approved by the sur- 
 rogate, execute a bond to the people of' this 8tate,^n 
 
 the penal sum of dollars, conditioned as 
 
 required by law. 
 
 No. 88. 
 
 OKDER APPOINTING FEEEHOLDER TO MAKE SALE. 
 At, etc. 
 
 Present — Hon , Surrogate. 
 
 In the matter of the real estate 
 
 of 
 
 , deceksed. 
 
 On filing the petition duly verified of , 
 
 a creditor of the above named deceased, showing that 
 the administrator, etc., of the said de- 
 ceased, has refused and still refuses to execute the 
 bond required in these proceedings by the order of this 
 
 court, and nominating ...., a disinterested 
 
 freeholder, to make such sale, it is ordered that 
 
 be appointed to make such sale, on his 
 
 filing the bond required by law. 
 
 ,...., Surrogate. 
 
APPENDIX — FORMS. 313 
 
 FOEMS IN RELATION TO GUARDIANS AND 
 WARDS. 
 
 No. 89. 
 
 PETITION FOR GUARDIAN OF MINOR OVER 14 
 YEARS OF AGE. 
 
 To Moses Warren, Esq., Surrogate of Rensselaer 
 county : 
 
 The petition of A B, of the town of Lansingburgh, 
 in the county of Rensselaer aforesaid, respectfully 
 shows : That your petitioner is a resident of the county 
 of Rensselaer, and is a minor over fourteen years of 
 age ; that he was sixteen (16) years of age on the 15th day 
 of May last ; that your petitioner is entitled to certain 
 property and estate, and that to protect and preserve the 
 legal rights of your petitioner, it is necessary that some 
 proper person should be appointed the guardian of his 
 person and estate during his minority. Tour peti- 
 tioner therefore nominates, subject to the approbation 
 of the surrogate, C D, of the town of Lansingburgh 
 aforesaid, the maternal uncle of your petitioner (or, in 
 no way related to your petitioner), to be suchguardian, 
 and prays his appointment accordingly. And your 
 petitioner, &c. 
 
 Dated, April 15th, 1862. 
 
 (Signed), A B. 
 
314 EXECUTOR'S AND ADMINISTBATOR'S GUIDE. 
 
 Rensselaer county, ss : 
 
 A B, the foregoing petitioner, being duly sworn, 
 says that he has read the forgoing petition, and knows 
 the contents thereof, and that the same is true, to the 
 best of his knowledge and belief. 
 
 AB. 
 
 Sworn before me, this 
 day of ,1862, 
 
 ;} 
 
 Chas. J. Lansing, 
 
 Justice of the Peace. 
 
 Consent of 'Person to he Appointed. 
 
 I, C D of the town of Lansingburgh, consent to be 
 
 appointed the guardian of the person and estate of the 
 
 above named minor, during his minority. 
 
 Dated, April 15, 1862. 
 
 CD. 
 
 Affidavit as to Property . 
 
 Rensselaer county, ss : 
 
 E F, of the town of Lansingburgh, in said county, 
 being duly sworn, says that he is acquainted with 
 the property and estate of the above named minor ; 
 that the same consists of personal property only, 
 which does not exceed in value the sum of five hun- 
 dred dollars; (that the same consists of real and per- 
 sonal estate; that the value of the personal estate of 
 said minor does not exceed the sum of five hundred 
 dollars,) and {hat the annual rents and profits of the 
 
APPENDIX — FORMS. 315 
 
 real estate of said minor, do not exceed the sum of 
 fifty dollars, or thereabouts. 
 
 EF. 
 Sworn this 15th day of April, \ 
 1862, before me. i 
 
 Chas. J. Lansing, 
 
 Justice of the Peace. 
 
 No; 90. 
 OKDERS FOR LETTERS OF GUARDIANSHIP. 
 
 At, etc. 
 Present — Hon , Surrogate. 
 
 In the matter of the person and 
 estate 
 
 of 
 A B, a minor. 
 
 On reading and filing the petition of A B, of the 
 
 town of in said county, from which it 
 
 appears, that the said A B is a minor, over the age of 
 fourteen years and under the age of twenty-one, and 
 has no testamentary guardian and is possessed of cer- 
 tain property, and asking for the appointment of 
 
 as the guEtrdian of his person and 
 
 estate ; and on reading and filing the consent of said 
 to be so appointed: And the said 
 
316 EXECUTOR'S AND ADMINISTRATOR'S GUIDE. 
 
 having filed Ms bond in due form of law to said minor 
 with a penalty and sureties approved by the surrogate. 
 
 It is ordered that said be appointed the 
 
 guardian of the person and estate of said minor until 
 he shall arrive at the age of twenty-one years, and that 
 letters of guardianship issue accordingly. 
 
 , Surrogate. 
 
 No. 91. 
 
 PETITION FOE GUARDIAN, MINOR UNDER FOUR- 
 TEEN YEARS, BY MOTHER. 
 
 To } Esq., Surrogate of the county 
 
 of : 
 
 The petition of Sarah Dean, of the eity of Troy, in 
 the county of Eensselaer, respectfully showeth that 
 your petitioner is the mother of James Dean, a imnor ; 
 that said minor resides in the county of Rensselaer, 
 and is under fourteen years of age ; that said James 
 was ten years of age on the 14th day of August last 
 past ; that said minor is entitled to personal property 
 to the value of about four hundred dollars, as your 
 petitioner is informed and verily believes, and that he 
 is also seized of certain real estate, the annual rents and 
 profits whereof do not exceed the sum of fifty dollars, 
 and to protect and to preserve the legal rights of said 
 minor, it is necessary that some proper person should 
 be duly appointed the guardian of his person and 
 estate. 
 
APPENDIX — FORMS. 317 
 
 Your petitioner, therefore, prays that you will ap- 
 point John Dean of the city of Troy, in the county of 
 Rensselaer, the guardian of the person and estate of 
 said minor, until he shall arrive at the age of fourteen 
 years, and until another guardian shall be appointed. 
 And your petitioner will ever pray. 
 
 Dated, this 15th day of April, A. D. 1862. 
 
 Sakah Dean. 
 
 Consent. 
 
 I, John Dean of the city of Troy, county of Rens- 
 selaer, do hereby consent to be appointedthe guardian 
 of the person and estate of the above named minor 
 diiring his minority. 
 
 Dated, this 15th day of April, A. D. 1862. 
 
 John Dean. 
 
 State of New York, "I 
 
 Rensselaer county, > 
 
 Sarah Dean of the city of Troy, the above petitioner, 
 
 being duly sworn, deposes and says, that the matters 
 
 set fprth in the foregoing petition are true, as she is 
 
 informed and verily believes. 
 
 Sarah Dean. 
 
 Sworn before me, this 15th \ 
 day of April, A. D. 1862. J 
 
 Moses "Warkbn, Surrogate. 
 
318 EXECUTOR'S AND ADMINISTEATOR'S GUIDE. 
 
 No. 92. 
 
 PETITION FOR GUAEDIAN, BY RELATIVE, NOT 
 ENTITLED. 
 
 To jEsq., Surrogate of the county 
 
 of : 
 
 The peitjton of of the of 
 
 in the county of , respect- 
 fully shows : That your petitioner is the maternal 
 uncle (or the friend, as the case may be) of James 
 Dean, a minor; that the said minor resides in the 
 
 county of and is under fourteen years of 
 
 age, and was years of age on the day 
 
 of last past, as your petitioner is in- 
 formed and believes; that the relatives of said minors 
 
 in said county of are his , 
 
 mother, and his brother of full age, 
 
 and his maternal aunt; that said minor 
 
 is entitled to personal property of the value of about 
 
 dollars, and that he is also seized of 
 
 certain real estate in. this state, the annual rents and 
 
 profits whereof do not exceed the sum of 
 
 dollars (if the statements are not according to the per- 
 sonal knowledge of the petitioner say, as appears by 
 the affidavits hereunto annexed), and to protect the 
 legal rights of said minor, it is necessary that some 
 proper person should be duly appointed the guardian 
 of his person and estate. 
 
 Your petitioner, therfefore, prays that you will ap- 
 point of the of 
 
APPENDIX — FORMS. 319 
 
 in the county of the guardian of the person 
 
 and estate of said minor, until he shall arrive at the 
 age of fourteen years, and until another guardian shall 
 be appointed. 
 
 Dated, this day of , 1872. 
 
 (Signed), 
 
 county, 88 : 
 
 , being duly sworn, says that the fore- 
 going petition, by him subscribed, is true of his own 
 knowledge, except as to the matters which are therein 
 stated on information and belief, and, as to those 
 matters he believes it to be true. 
 
 (Signed), 
 
 Sworn, etc. 
 
 Add Consent of Ouardian-io be appointed as in No. 91, 
 and affidavits as to property if necessary. 
 
 No. 93. 
 OKDER FIXING HEAEING, AND lOR NOTICE. 
 At, etc. 
 Present — Hon , Surrogate. 
 
 In the matter 
 
 of 
 , a minor. 
 
 On reading and filing the petition of , 
 
 praying for the appointment of , as guard- 
 ian of said minor, and it appearing therefrom that 
 
320 EXECUTOR'S AND ADMINISTRATOR'S GUIDE. 
 
 , and -. , are relatives of said 
 
 minor, resident in this county : ordered, that the 
 
 day of , be assigned for hearing the said 
 
 matter at the surrogate's office in the 
 
 of , at ten o'clock in the forenoon, and 
 
 that at least six days' notice in writing, be given by said 
 petitioner to said relatives, of the time and place of such 
 hearing. 
 
 (Signed), , Surrogate. 
 
 No. 94. 
 NOTICE OF HEAKING TO EELATIVES. 
 Surrogate's court, county. 
 
 In the matter 
 , a minor. 
 
 Take notice, that a petition has been presented to 
 
 the surrogate of the county of , for the 
 
 appointment of , a guardian of the person 
 
 and estate of said minor, and that the said surrogate 
 
 has assigned the day of , at ten 
 
 o'clock, A.M., at his office in , as the time 
 
 and place of hearing the said matter. 
 
 (Signed), 
 
 , Petitioner. 
 
 To , mother, and 
 
 of said minor. 
 
APPENDIX — FORMS. 321 
 
 No. 95. 
 
 OKDER FOR APPOINTMENT. 
 At, etc. 
 
 Present — Hon , Surrogate. 
 
 In the matter 
 
 of 
 , deceased. 
 
 A petition of , having been heretofore 
 
 presented to the surrogate, asking for the appointment 
 
 of , as guardian of the person and estate 
 
 of the above named minor, until he shall arrive at the 
 age of fourteen years,, and until another guardian 
 shall be appointed, accompanied with the consent of 
 
 , to be so appointed, and it appearing 
 
 that certain relatives of said minor reside in said 
 county ; now on reading and filing proof of the due 
 service of notice of the hearing in this matter, on 
 such relatives, and none of them appearing (or, and 
 
 , appearing, and the surrogate being 
 
 satisfied of the propriety of the application), and the 
 
 said , having filed his bond to said minor 
 
 with a penalty, condition and sureties approved by the 
 surrogate. Ordered, that said , be ap- 
 pointed the guardian of the person and estate of said 
 
 minor, until he shall arrive at the age of fourteen 
 21 
 
822' EXECUTOR'S AND ADMINISTRATOR'S GUIDE. 
 
 years, and until another guardian shall be appointed 
 and that an appointment issue. 
 
 ., Surrogate. 
 
 No. 96. 
 
 BOND OP GUAKDIAN. ' 
 
 Know all men by these presents, that we, John 
 Dean, Samuel Stiles and John Dae, of the city of Troy 
 in the county of Rensselaer, are held and firmly 
 bound unto James Dean of the city of Troy, afore- 
 said, a minor, in the sum of two thousand five hundred 
 dollars, to be paid to the said James Dean, his certain 
 attorney, executors, administrators or assigns, to which 
 payment well and truly to be made, we bind ourselves, 
 our and each of our heirs, executors and administrators, 
 jointly and severally, firmly by these presents. 
 
 Sealed with our seals, and dated "1 
 this 15th day of April, 1862. J 
 
 The condition of this obligation is such, that if the 
 above boundea John Dean, shall faithfully, in all 
 things, discharge-the duties of a guardian to the above 
 named James Dean, a minor, according to law, and 
 shall render a just and true 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 re- 
 
APPENDIX — FORMS. 323 
 
 quired, then this obligation to be void,' otherwise to 
 
 remain in full force and virtue. 
 
 John Dean, [l. s.] 
 
 Samuel Stiles, [l. s.] 
 John Dob, [l. s.J 
 
 Sealed and, delivered in presence of 
 
 Moses "Warren. 
 
 Rensselaer county, ss : 
 
 Samuel Stiles and John Doe of the city of Troy in 
 said county, being severally sworn, depose and say, 
 and each for himself says, that he is worth the sum of 
 two thousand five hundred dollars, over and above all 
 debts due from, or liabilities incurred by him. 
 
 Samuel Stiles, 
 John Dob. 
 Sworn before me this 15th \ 
 day of April, 1862. J 
 
 John L. Flagg, 
 
 Justice of the Peace. 
 
 State of ISTew York, 1 
 
 ' Vss: 
 
 Eensselaer County, J 
 On this 15th day of April, 1862, before me per- 
 sonally appeared John Dean, Samuel Stiles and John 
 Doe, to me known to be the persons described in and 
 who executed the foregoing bond, and severally ac- 
 knowledged that they executed the same. 
 
 John L. Flagg. 
 Justice of the Peace. 
 
 Indorsed. 
 Approved. 
 
 ., Surrogate. 
 
324 EXCEUTOE'S AND ADMINISTRATOE'S GUIDE. 
 
 No. 97. 
 
 GUAKDIANS' ANNUAL ACCOUNT, ETC., AND 
 INVBNTOKY. 
 
 Inventory. 
 
 Surrogate's court, Eensselaer county : 
 
 In the matter 
 
 of 
 A B, a minor. 
 
 A just and true inventory of the estate and effects 
 of the above named minor on the 1st day of April, 
 1862: 
 
 Cash received of D, executor, 
 etc., of C D, deceased, $350 00 
 
 1861. * Dr. 
 
 John La Fountain, bond and 
 mortgage, $200, interest one 
 year, $14, 214 00 
 
 R. Thompson, bond and mort- 
 gage, $300, interest sixmonths 
 $10.50, 310 50 
 
 Ten shares Central Rail Road 
 stock par value $1000, actually 
 worth, 830 00 
 
 House and lot ISo. 164 Fulton 
 
 street, Troy, valued at, 800 00 
 
 Farm in Sand Lake valued at, 2,000 00 
 
 $4,504 50 
 
APPENDIX — FORMS. 325 
 
 Account. ' 
 
 J K, guardian, in account with A B, a minor. 
 
 1861. Dr. 
 
 April 1, To interest on La Foun- 
 tain mortgage,... $14 00 
 
 Oct. 1, To interest on Thomp- 
 son mortgage, 21 00 
 
 1862. 
 
 Feb. 1, To dividend Central 
 Rail Eoad, 3 per 
 
 cent, 30 00 
 
 To 3 quarters' rent 
 house, 164 Fourth 
 street, 180 00 
 
 March 1, To 1 years' rent farm, 
 
 in Sand Lake, 200 00 
 
 $445 00 
 
 Contra. 
 1861. Cr. 
 
 April 10, By board paid J. H., 
 
 26 weeks at $2,... $52 00 
 July 1, By clothing purchased 
 
 of J. N., 10 00 
 
 9, By hats purchased of 
 
 G. F., 50 
 
 Oct. 1, By board paid J. H., 
 
 26 weeksi 52 00 
 
 10, By clothing of J.K,... 15 00 
 
 Carried forward...... $129 50 
 
326 EXECUTOR'S AND ADMINISTEATOR'S GtTIDE, 
 
 Brought forward, $129 50 
 
 1861. 
 
 Oct. 1, By repairs 'So. 164 
 
 Fourth street, 8 60 
 
 1862. 
 
 Feb. 10, By taxes 164 Fourth 
 
 street, 12 00 
 
 By taxes farm in Sand 
 
 Lake, 22 00 
 
 April 1, By interest on |350, un- 
 invested 6 months, 12 25 
 Commission for receiv- 
 ing income 2 J per- 
 cent on $445, 11 12 
 
 Commission on paying 
 out income 2| per 
 cent on 195.37,... 3 87 
 
 Balance due estate, 234 64 
 
 $445 00 
 
 Rensselaer county, ss : 
 
 J, K., of the city of Troy, being duly sworn, says that 
 the above is a just and true inventory of the whole 
 real and personal estate and effects of the above named 
 minor, so far as the same have come to his knowledge, 
 and a just and true account of his guardianship, and 
 of the amount of property received by and remaining 
 in his hands, invested by him on account of the said 
 minor, and of the manner and nature of such invest- 
 ment, and also his expenditures on account of the said 
 
APPENDIX — FORMS. 327 
 
 minor and his estate, (since his last annual account to 
 this court). J K. 
 
 Sworn before me, this 2d ) 
 day of April, 1862. i 
 
 M. W., Surrogate. 
 
 No. 98. 
 PETITION TO KEMOVE A GUARDIAN. 
 
 To the Surrogate of the county of : 
 
 The petition of of the of 
 
 respectfully shows : 
 
 That on or about the day of 
 
 187.., one was duly appointed by the 
 
 surrogate of said county, the guardian of the person 
 
 and estate of a minor; that the said 
 
 , entered upon his trust and assumed 
 
 control of the person and estate of said minor. 
 
 And your petitioner further shows that since his ap- 
 pointment, as aforesaid, the said .*... has become 
 
 incompetent and an unsuitable person to perform the 
 duties of such guardian, by reason of habitual intem- 
 perance in the. use of alcoholic liquors, (or, that the 
 
 said has wasted and continues to waste, 
 
 and misapply the estate of said minors, or other cause) ; 
 that your petitioner is one of the sureties of said 
 
 as such guardian (or, a relative of said 
 
 minor) 
 
328 BXECUTOE'S AND ADMINISTRATOR'S GUIDE. 
 
 Your petitioner, therefore, prays that an examination 
 may be had in the premises, and that a citation issue 
 to the said to the end that he maybe re- 
 moved as such guardian and his appointment revoked. 
 
 Dated, this day of , 1872, 
 
 (Signed), 
 
 county ss: 
 
 being duly sworn etc. 
 
 No. 99. 
 OKDBE FOE CITATION THEKEIN. 
 
 At a Surrogate's court, etc : 
 
 Present — Hon ..., Surrogate. 
 
 In the matter of the person and 
 estate 
 
 of 
 ..... a minor. 
 
 On reading and filing the petition of .^ , 
 
 one of the sureties of , the guardian of the 
 
 person and estate of the above named minor, setting 
 forth that, the said , has become incompe- 
 tent by reason of intemperance and praying for his 
 removal. Ordered that a citation issue to the said 
 
 requiring him to appear in this court to 
 
 show cause why he should not be removed from his 
 
 guardianship. 
 
 , Surrogate. 
 
APPENDIX — FORMS. 329 
 
 No. 100. 
 OKDER FOR REVOCATION. 
 
 At a Surrogate's court, etc. 
 
 Present — Hon , Surrogate. 
 
 In the matter of the person and 
 estate 
 
 of 
 , a minor.' 
 
 On filing the citation heretofore issued in this matter, 
 returnable this day, with proof of the due service 
 
 thereof on the guardian of the above 
 
 named minor and the said not appear- 
 ing, (or, the said having appeared, and 
 
 the surrogate being satisfied, after hearing the proof 
 and allegation of the parties of the truth of the matters 
 
 stated in the petition of in this matter. 
 
 It is ordered that the said be removed 
 
 from the office of guardian of the person and estate of 
 said minors, and that his appointment heretofore made 
 
 be revoked. 
 
 Surrogate. 
 
330 EXECUTOR'S AND ADMINISTBATOR'S GUIDE. 
 
 No. 101. 
 
 PETITION THAT GUAKDIAN GIVE NEW SUEETIES. 
 
 To the surrogate of the county of, : 
 
 The petition of of the town of , 
 
 respectfully shows: 
 
 That your petitioner is a relative of a 
 
 minor, of said of : That on of 
 
 about the day of , 1869, one 
 
 was appointed by this court the guard- 
 ian of the person and estate of said minor, and on 
 
 such appointment , and 
 
 uijiited with said as sureties in his bond 
 
 filed in this court to said minor. That your petitioner 
 
 is informed and believes that one of 
 
 said sureties is becoming, or has became insolvent, as 
 your petitioner is informed and verily believes, (or has 
 removed, or is about to remove from this state ; or, that 
 the said sureties are insufficient, for the reason that 
 the estate of said minor, has increased very much in 
 value since appointment of such guardian). Your 
 petitioner, therefore, prays that your honor will inves- 
 tigate the matter to the end that the said 
 
 should give further sureties, or be removed from his 
 guardianship. 
 
 Dated, this day of , 1870. 
 
 (Signed), 
 
 Add verification. 
 
APPENDIX — FORMS. 331 
 
 No. 102. 
 
 OKPEK FOR CITATION TO GIVE FURTHER SURE- 
 TIES, ETC. 
 
 At a Surrogate's court, held, etc. 
 
 Present — Hon , Surrogate. 
 
 In tlie matter of the person, and 
 estate 
 
 of 
 
 On reading and filing the petition of , 
 
 in behalf of said minor, setting forth that , 
 
 one of the sureties of , the guardian of 
 
 said minor, is about to remove from this state. Ordered 
 
 that a citation issue to the said , requiring 
 
 him to appear in this court, to show cause why he 
 
 ■ should not give further sureties, or be removed from 
 
 his guardianship. 
 
 , Surrogate. 
 
332 EXECUTOR'S AND ADMINISTEATOB'S GUIDE. 
 
 No. 103. 
 OKDEE FOE ADDITIONAL SUEETIES. 
 At a Surrogate's court, etc. 
 Present— Hon , Surrogate. 
 
 In the matter of the person and 
 estate 
 
 of 
 ., a minor. 
 
 On the return of the citation issued to , 
 
 the guardian of the person and estate of said minor, 
 
 with due proof of the service thereof on said , 
 
 and the said ....; , having appeared, and it 
 
 appearing that , one of his sureties has 
 
 removed from this state. Ordered, that said , 
 
 give further sureties, approved by the surrogate, in a 
 
 bond in the penalty of $ , to said minor 
 
 vrithin days from this date. 
 
 , Surrogate. 
 
APPENDIX — FOEfilS. 333 
 
 No. 104. 
 
 OKDEK REMOVIN& GUAEDIAN, FOR NEGLECT 
 TO GIVE SURETIES. 
 
 At a Surrogate's court, etc. 
 Present — Hon , Surrogate. 
 
 In the matter of the person and 
 estate 
 
 of 
 
 An order having been heretofore made in this matter 
 
 on the day of , requiring , 
 
 the guardian of the person and estate of said minor to 
 
 give further sureties within days from 
 
 that day ; now on reading due proof of the service of 
 
 said order on the said , on the 
 
 day of : ,1872) and the said , 
 
 having neglected to give such further sureties. 
 
 Ordered, that said , be removed from his 
 
 trust as such guardian, and that a revocation issue 
 under the seal of this court, of the letters heretofore 
 ■granted to him. 
 
 , Surrogate, 
 
334 EXECUTOR'S AND ADMINISTEATOK'S GUIDE. 
 
 No. 105. 
 
 PETITION OE GUARDIAN TO BE ALLOWED TO 
 
 RESIGN. 
 
 To the Surrogate of the county of : 
 
 The petition of , of the 
 
 of , respectfully shows : 
 
 That heretofore your petioner was, on the 
 
 day of , 1868, duly appointed by the surro- 
 gate of said county, the guardian of the person and estate 
 
 of , a minor, and has, as your petitioner 
 
 verily believes, conducted himself honestly in the exe- 
 cution of his trust. That , and , 
 
 are the next of kin of said minor, residing in this 
 county above the age of fourteen years. 
 
 That your petitioner is desirous of resigning his 
 trust as such guardian, for the reason that he has re- 
 moved from this state, (or is about to remove, or, 
 other cause) and he prays that he may be permitted to 
 render an account of his proceedings as such guardian, 
 to the end that a successor may be appointed and your 
 petitioner may be relieved therefrom. 
 
 Dated, this day of , 1872. 
 
 (Signed), .; 
 
 {Verificaiion). 
 
APPENDIX — FORMS. 335 
 
 No. 106. 
 OKDER FOR CITATION THEREON. 
 At a Surrogate's court, etc. 
 
 Present — Hon , Surrogate. 
 
 In the matter of the person and 
 estate 
 
 of 
 
 ., a minor. 
 
 , the guardian of the person and estate 
 
 of the above named minor, having presented his peti- 
 tion to the surrogate, setting forth that he has con- 
 ducted himself honestly in the execution of his trust, 
 but has removed from this state. Ordered, that a 
 citation issue to said minor, and to his next of kin re- 
 siding in this county, requiring them to appear and 
 
 show cause why said should not be at 
 
 liberty to resign his trust. 
 
 , Surrogate. 
 
 No. 107. 
 
 ORDER APPOINTING SPECIAL GUARDIAN. 
 
 (Same as No. 9 which see.) 
 
336 EXECUTOE'S AND ADMINISTEATOR'S GUIDE 
 
 No. 108. 
 
 ACCOUNT OF GUARDIAN. 
 
 The account of an executor or administrator may 
 readily be adopted .to answer his purpose, see form 
 No. 64. 
 
 No. 109. 
 
 PETITION THAT GUARDIAN RENDER AN ACCOUNT. 
 
 See form N'o. 60, petition that executor or adminis- 
 trator account, which may readily be adopted. 
 
APPENDIX — FORMS. 337 
 
 FORMS IN RELATION TO DOWER. 
 
 No. 110. 
 PETITION FOR DOWER, BY WIDOW. 
 
 To the Surrogate of the county of Rensselaer : 
 
 The petition of M B, of the town of Schodack, in 
 the county of Rensselaer, respectfully shows : That 
 she is the widow of A B, late of said town, deceased; 
 that she was lawfully married to said A B, in his life 
 time, and lived with him as his wife until his death, on 
 the 15th day of June, 1860 ; that the said A B, at the 
 time of his decease, was seized of an estate of inherit- 
 ance of and in the following lands and premises, situ- 
 ated in the said town of Schodack, bounded and de- 
 scribed as follows : On the north by lands of Barent 
 Van Hoesen, east by lands of said Van Hoesen and 
 Joseph Hare, south by lands of Joseph Hare, and west 
 by lands of James Van Voorhies, containing one hundred' 
 acres, be the same more or less. 
 
 Your petitioner further shows : That A B, and, C B, 
 children and heirs of said A B, deceased, claim to own 
 said premises, and your petitioner verily believes that 
 they are the owners thereof, subject to your petitioner's 
 right of dower. 
 
 Tour petitioner, therefore, prays that an order be 
 made for the admeasurement of her dower in said lands 
 22 
 
338 EXECUTOR'S AND ADMINISTRATOR'S GUIDE. 
 
 and premises and that three reputable freeholders may- 
 be appointed for the purpose of making such admeasure- 
 ment. And she shows that A B, the said child and 
 heir of said A B, deceased, is a minor under the age 
 of twenty-one years and over fourteen years old, and 
 having no general guardian. 
 Dated, Schodack, April 1, 1862. 
 
 M. B. 
 
 E. S. S., Atttmieyfor Belator. 
 
 Rensselaer county, ss : 
 
 M B, the petitioner above named, being duly sworn, 
 says that the foregoing petition, by her subscribed, is 
 true of her own knowledge, except as to the matters 
 which are therein stated on information and belief; 
 and as to those matters, she believes it to be true. 
 
 M. B. 
 Sworn before me, this 1st day I 
 day of April, 1862. J 
 
 M. K, 
 Justice of the Peace. 
 
APPENDIX— FORMS. 339 
 
 No. 111. 
 ORDEK APPOINTINa GUAEDIAN FOR MINORS. 
 At, etc. 
 
 Present — Hon , Surrogate. 
 
 In the matter of the dower 
 
 of 
 a widow. 
 
 , claiming to be the widow of , 
 
 late of the town of , having filed her pe- 
 tition for the admeasurement of her dower, and it 
 
 appearing that and , heirs- 
 
 at-law, of said deceased, are infants interested in the 
 real estate described in said petition. 
 
 Ordered, that , of the of 
 
 .', a discreet and substantial freeholder, be 
 
 ■ appointed guardian for said infants, for the sole pur- 
 pose of appearing for and taking care of the interests 
 of such infants in the proceedings in this matter. 
 
 ^Surrogate. 
 
340 EXECUTOR'S AND ADMINISTRATOR'S GUIDE. 
 
 No 112. 
 
 NOTICE TO HEIES OE OWNEES. 
 
 To C B, and A B, heirs-at-law of A B, late of the town 
 of Schodack, deceased, and to all others claiming a 
 freehold in the lands described in the annexed petition. 
 
 Take notice, that a petition, of which the annexed 
 
 is a copy, will be presented to Moses "Warren, Esq., 
 
 surrogate of the county of Rensselaer, at his office in 
 
 the city, of Troy, on the 25th day of April, 1862, at ten 
 
 o'clock in the forenoon of that day, and that a motion 
 
 will be then made that the prayer of the petition be 
 
 granted. 
 
 Dated, April 3, 1862. 
 
 M. B. 
 
 E. S. 8., Attorney for Petitioner. 
 
 113. 
 
 OEDEE FOE APPOINTMENT OF COMMISSIONEES. 
 At, etc. 
 
 Present — Hon , Surrogate. 
 
 In tie matter of the dower 
 
 of 
 
 a widow. 
 
 On reading and filing the petition of the above 
 named widow, praying for the admeasurement of her 
 
APPENDIX— FORMS. 341 
 
 dower ia the lands therein described, and proof of the 
 due service of a copy of said petition with notice of 
 the presentation of the same, and it appearing by proof 
 duly taken, that said petitioner is the widow of 
 
 , late of the of , 
 
 deceased, and that the said ; , was in his 
 
 lifetime seized of an estate of inheritance in the lands 
 
 therein described. Now on motion of , 
 
 attorney for the petitioner. 
 
 Ordered, that , and , three 
 
 respectable and disinterested freeholders, be and they 
 are hereby appointed commissioners, for the purpose 
 of making admeasuremeint in the following described 
 land. (Description). 
 
 And it is further ordered that said commissioners 
 
 report to this court their) proceedings, on the 
 
 day of next. 
 
 , Surrogate. 
 
 No. 114. 
 EBPORT OF COMMISSIONEES. 
 
 In tLe matter of the dower 
 
 of 
 
 M. B. 
 
 To Moses "Warren, Esq., Surrogate of Rensselaer 
 county : 
 
 The undersigned, A B, C D, and E E, commis- 
 sioners appointed by the surrogate of said county of 
 
342 EXECUTOR'S AND ADMINISTRATOR'S GUIDE. 
 
 Rensselaer, by order dated tlie 25th day of April, 
 1862, to make admeasurement of the dower of M B, 
 above named, widow of A B, late of the town of 
 Schodack, in said county, deceased, in the land and 
 premises described in said order, and situated in 
 said town of Schodack, do respectfully report : That 
 having first been duly sworn, faithfully, honestly and 
 impartially to discharge the duty and execute the 
 trust reposed in us by said appointment, we met on • 
 said premises on the 30th day of April, 1862, to dis- 
 charge the duty and execute the trust aforesaid; 
 having first given notice of our intention so to 
 meet, to M B, C B, and J H, guardian of A B, 
 who did appear at said time and place. Whereupon 
 we caused a survey to be made of the premises, and 
 a map to be made thereof, which map and survey is 
 hereto annexed. 
 
 And we do further report, that we have admeas- 
 ured and allotted to the said M B, for her dower 
 in the said lands and premises, the one-third part 
 thereof, which is bounded and described as follows : 
 (describing by metes and bounds, and designating the per- 
 manent monuments), being the part designated on the 
 said map, hereto annexed, by the letter A, and in- 
 cluded within the red lines. 
 
 The items of the charges of said admeasurement, 
 including our fees, are as follows : 
 
 Two days' service for each commissioner, 
 $2 per day for each |8 00 
 
 One day's service of 8 D G, surveyor, 5 00 
 
 Carried forward, $13 00 
 
APPENDIX — FORMS. 343 
 
 Brought forward, $13 00 
 
 Paid for chain and flag bearers, one day 
 
 each, $1 per day 2 00 
 
 $15 00 
 "Witness our hands, this 12th day of May, 1862. 
 
 AB,^ 
 
 C D, I Commissioners. 
 EF,J 
 
 No. 115. 
 APPEAL FROM DBCEEE OP SUEROGATE. 
 Surrogate's court, county of Rensselaer : 
 
 In the matter of proving the last 
 will and testament 
 
 of 
 Eugene Bendon, deceased. 
 
 A sentence and decree of the County Judge of Eens- 
 selaer county, acting as surrogate, having been pro- 
 nounced and entered in this matter on the 14th day of 
 April, 1871,wherebyitwas decided, ordered, adjudged 
 and decreed that the instrument in writing propounded 
 for probate in this matter by Thomas Sausse, one of the 
 executors named therein, bearing date the 25th day of 
 July, 1868, is the last will and testament of Eugene 
 Bendon, late of the city of Troy, in said county, deceased. 
 
344 EXECUTOR'S AND ADMINISTRATOR'S GUIDE. 
 
 above named, and as sucli is valid as a will of real and 
 personal estate, and whereby the same was admitted to 
 probate and ordered to be recorded as a will of real and 
 personal estate, and we, Thomas Bendon and Annie 
 Kelly, heirs-at-law and next of kin to the said Eugene 
 Bendon, deceased, feeling aggrieved by the said decree, 
 we, the said Thomas Bendon and Annie Kelly, do 
 hereby appeal from the said sentence or decree to the 
 Supreme court, and pray that the pleadings, proofs and 
 proceedings in the said matter may be transmitted to 
 the Supreme Court to the end that such order may be 
 made thereupon as shall be just. 
 Dated, July 3d, 1871. 
 
 Thomas Bendon, 
 Annie Kelly. 
 
 No. 116. 
 
 BOND ON APPEAL. 
 
 Know all men by'th^se presents, that we Thomas 
 
 Bendon, and Annie Kelly, as principal, and 
 
 and , of the city of Troy in the county 
 
 of Eensselaer, as sureties, are held and firmly bound 
 unto (naming the respondents to the appeal), in the 
 sum of (not less than one hundred dollars), lawful 
 money of the United States, to be paid to the said 
 (respondent). To which payment well and truly to 
 be made, we bind ourselves, our heirs, executors and 
 
APPENDIX — FOEMS. 345 
 
 administrators, jointly and severally, firmly by these 
 presents. 
 
 Sealed with our seals, and dated the "I 
 third day of July, A. T>.; 18T1. / 
 
 Whereas the above named Thomas Bendon and 
 Annie Kelly, have appealed to the Supreme court 
 from the sentence or decree of the County Judge of 
 the county of Bensselaer acting as surrogate of said 
 county, admitting to probate a. certain paper writing 
 purporting to be the last will and testament of Eugene 
 Bendon, late of the city of Troy, in said county deceased, 
 
 which said sentence or decree is dated the day 
 
 of ,1871. 
 
 Now the condition of this obligations is such that 
 if the said Thomas Bendon and Axinie Kelly, or either 
 of them or their heirs, executor or administrator, shall 
 prosecute this said appeal to efifect, and shall pay all 
 acts that shall be adjudged against them, by the Su- 
 preme court on such appeal, then this obligation to 
 be void, otherwise to remain in full force and virtue. 
 (Signed), 
 
 Thomas Bendon, [l.s.] 
 Annie Kelly, [l.s.] 
 , [L-s.] 
 
 , [L-S.] 
 
 Rensselaer county, ss. : 
 
 On this day of , 1871, before 
 
 me personally came Thomas Bendon, Annie Kelly, 
 and , to me known to be 
 
346 EXECUTOK'S AND ADMINISTRATOR'S GUIDE. 
 
 the same person described in, and who executed the 
 foregoing instrument, and severally acknowledged that 
 they executed the sanae. 
 
 (Signed), ...., 
 
 Justice of the Peace. 
 
 Indorsed. 
 I approve of the within bond, as to form, manner of 
 execution, and the sufficiency of the sureties therein. 
 (Signed), 
 
 , Surrogate. 
 
 No. 117. 
 PETITION OF APPEAL TO SUPEEMB COUET. 
 
 Supreme Court. 
 
 Thomas Bendon and Annie Kelly 
 
 Thomss Sausse and Peter Bran- 
 nan, as executors of the will 
 of Eugene Bendon, deceased, 
 Catharine Kean, Bernard Kean, 
 Caroline O'SuUiTan, Mary A. 
 McGovern, Anna Brennan, 
 Maria Nugent, the Society of 
 St. Vincent De Paul, of Troy, 
 St. Vincent's Female Orphan 
 Asylum, the Troy Orphan Asy- 
 lum, and the Catholic Male 
 Orphan Asylum. 
 
 To the Supreme court : 
 
 The petition of appeal of Thomas Bendon and-Annie 
 Kelly, appellants in the above entitled cause, by Me- 
 
APPENDIX — FORMS. 34 7 
 
 Clellan & Lansing, their attorneys, respectfully shows 
 to this court : 
 
 That the said appellants are heirs-at-law and next of 
 kin of Eugene Bendon, late of the city of Troy, de- 
 ceased ; 
 
 That the said Eugene Bendon died at the city of 
 
 Troy on the day of ,1870, aged 
 
 seventy-two years and upwards, being, at the time of 
 his death, the owner of real and personal property of 
 the value of fifteen thousand dollars and upwards ; 
 
 That after the death of the said Eugene Bendon, and 
 on the 22d day of September, 1870, Thomas Sausse, 
 named as one of the executors of the paper writing 
 hereinafter mentioned, produced before the surrogate 
 of the county of Rensselaer, and propounded to him 
 for proof as a will of real and for probate as a will of 
 personal estate, a certain paper writing purporting to 
 be the last will and testament of the said Eugene Ben- 
 don, deceased, bearing date the 25th day of July, 1868 ; 
 
 That the appellants, your petitioners, and each of 
 them, duly appeared before the said surrogate and 
 contested the validity of said alleged will and its ad- 
 mission to proof or probate as aforesaid ; 
 
 That the proceedings before the said surrogate were 
 duly continued from time to time, and on the 14th day 
 of April, 1871, E. Smith Strait, Esq., county judge of 
 Rensselaer county, acting surrogate, made and entered 
 a decree in the matter aforesaid, in substance, that said 
 paper writing, so propounded as aforesaid is the last 
 will and testament of said Eugene Bendon, deceased, 
 and ordering that the same be admitted to probate, 
 and be recorded as a will of real and personal estate. 
 
348 EXECUTOE'S AND ADMIN ISTEATOB'S GUIDE. 
 
 And your petitioners, the said appellants, allege that 
 the whole and every part of the said decision, order, 
 judgment and decree (except such portion thereof as 
 relates to the costs of the respective parties), is errone- 
 ous, improper and illegal, and they have, in consequence, 
 duly appealed to this honorable court. 
 
 And the appellants, your petitioners, pray that said 
 decision, order, judgment and decree of said acting 
 surrogate, and every part thereof, except as aforesaid, 
 may be reversed and annulled. 
 
 And the appellants, your petitioners, further state 
 that the persons, institutions, societies and corporations 
 intended to be made defendants, respondents and par- 
 ties to the said appeal, are as follows : 
 
 Catharine Kean, Bernard Eean, Bernard Bendon, 
 Caroline E. O'Sullivan, Mary A. McGovern, Anna 
 Brennan, Maria ]S"ugent, the Society of Saint Vincent 
 De Paul, of Troy ; the Troy Orphan Asylum, Saint 
 Vincent Female Orphan Asylum, the Catholic Male 
 Orphan Asylum, Thomas Sausse and Peter Brannan, 
 as executors of the will of said deceased. 
 
 And your petitioners pray that the persons, institu- 
 tions, societies and corporations above named may 
 answer this petition of appeal pursuant to law and the 
 practice of this court, and that a hearing may be had 
 on this appeal, and your petitioners may have such 
 further or other relief in the premises as to the court 
 shall seem just and equitable, 
 
 Dated, July 3, 1871. 
 
 Annie Kblly, 
 Thomas Bbndon. 
 
APPENDIX — FORMS. 349 
 
 Rensselaer county, ss : 
 
 On this 3d day of July, 1871, before nle personally 
 appeared the above named Annie Kelly and Thomas 
 Bendon, and severally made oath that they had heard 
 read the foregoing petition of appeal and know the con- 
 tents thereof, and that the same is true of their own 
 knowledge, except as to the matters which are therein 
 stated on information and belief, and as to those matters 
 they believe it to be true. 
 
 Daniel Dunn, 
 CmCr of Deeds, Troy, N. Y. 
 
 No. 118. 
 
 ANSWER TO PETITION OF APPEAL. 
 
 Supreme Court. 
 
 Thomas Bendon and Annie Kelly, 
 Appellants, 
 
 Thomas Sausse and Peter Bran- 
 nan, executors, etc., Eespond- 
 ents. 
 
 These respondents in answer to the petition of 
 appeal herein, admit that a decree or sentence of the 
 date, tenor and effect in the said petition of appeal set 
 forth, was made by the surrogate of the county of 
 Rensselaer : 
 
350 EXECDTOE'S AND ADMINISTEATOE'S GUIDE. 
 
 And these respondents are advised and believed, 
 and submit that such decree or sentence is just and 
 equitable. 
 
 These respondents, therefore, pray that the said sen- 
 tence or decree of the surrogate of the county of Rens- 
 selaer may be affirmed, and that the said petition of 
 appeal may be dismissed by this honorable court, with 
 costs to be adjudged to these respondents. 
 
 John Mokan, 
 Attorney for Eespondenis. 
 
INDEX. 
 
 Page. 
 
 Abatement, general legacies abate when, 91 
 
 legacy for debt, not subject to, 91 
 
 dower," " " 91 
 
 piety, " " " 91 
 
 Account, executor or administrator de son tort liable to, 10 
 
 special administrator may be ordered to, 45 
 
 executor or administrator shall, for gain or loss, 73 
 
 of executor or administrator, 
 
 to be filed on final settlement, 103 
 
 may be contested 103 
 
 referred to auditor or referee, 103 
 
 contested on final settlement 106 
 
 after, creditor may apply for sale, etc., of real estate 150 
 
 guardian to file annual, 173 
 
 guardian may be cited to by surrogate, 175, 174 
 
 cited to render .« 175 
 
 of guardian may be contested, 177 
 
 petition for order to, form of, 268 
 
 order that executor, render, form of, 370 
 
 allegations on contest, form of, 376 
 
 of executor or administrator, form of, 373 
 
 AccoxTNTiNG, contestants to have burden of proof, if inventory 
 
 isflled, 67 
 
 creditors claim presented at first, not barred 73 
 
 by executors and administrators, 98 
 
 order for, how served, 99 
 
 on return of order, proceedings on 100 
 
 application for, when dismissed, 100 
 
 testamentary trustees may be ordered to, 133 
 
 may have, 133 
 
 proceedings on 133 
 
 of guardians, 173 
 
352 EXECUTOR'S AND ADMINISTRATOR'S GUIDE. 
 
 Page. 
 
 AccoTTNTnirG, see final seitlmnent. 
 
 Action, may be maintained by executor or administrator against 
 
 unautliorized persons, 10 
 
 executor or administrator may have, 71, 70 
 
 in wljat courts may sue and be sued, ' 71 
 
 time of commencing in favor of estate extended, 73 
 
 against estate extended, 72 
 
 Admbasubement of dower, see Dower. 
 
 ADMonsTRATiON with will annexed, to observe will, 35 
 
 how granted, and to whom, 39, 38 
 
 how granted on estate of non-residents 40 
 
 on applying for, another person may be joined, 40 
 
 with will annexed, granted, when all executors die, etc., 48 
 
 renunciation of right to, form of, 324 
 
 petition for, form of, 235 
 
 petition for, with will annexed, form of, 338 
 
 order for, with will annexed, form of, 331 
 
 order for, form of, 234 
 
 petition for revocation of, 335 
 
 See Letters of Adminis^ation. 
 
 Administkatob de son tort, liabilities Of, 10 
 
 unauthorized power to account to 10 
 
 Ajdministratob with Will Annexed, to receive will, 37 
 
 power of to cease, on annulling of probate, 29 
 
 to account after annulling, 39 
 
 acts of before notice, valid, 39 
 
 cannot sell real -estate, 35 
 
 selling real estate considered trustees, 35 
 
 may be removed for neglect 35 
 
 appointed trustees to sell real estate, 35 
 
 Administrator, has no charge of real estate, 36 
 
 have no authority out of state 36 
 
 to take oath of office 43 
 
 before whom, 43 
 
 to file bond, 43 
 
 penalty of bond, 43 
 
 sureties of, may be required to justify, 44 
 
 bond of, to be proved or acknowledged, 44 
 
 special, See Collector. 
 
 letters to, be revoked on proof of will, 49 
 
 acts of in good faith, valid, 49 
 
 if sureties become insolvent, citation to issue, 49 
 
INDEX. 353 
 
 Page. 
 
 Admujistbatob, if sureties remove from state, citation to issue, 49 
 
 insufficient " " " 49 
 
 may be cited to show cause, . . 49 
 
 may be enjoined 50 
 
 required to give new sureties, 51, 50 
 
 failing to give new sureties letters revoked, 51, 50 
 
 sureties of may apply to be released, 50 
 
 on application of sureties citation to issue to, 51 
 
 sureties of may be released, 51 
 
 effect of revocation of letters to 51 
 
 absent or non-resident, not accounting, effect of, 53 
 
 letters may be revoked for cause 53 
 
 acts of before revocation valid, 53 
 
 duty to make inventory 53 
 
 may have appraisers appointed 53 
 
 See Inventory. 
 
 may have subpoena to discover property, 55 
 
 cannot collect rent accrued after intestates death, 57 
 
 may collect rent accrued before intestates death, 56, 57 
 
 claims of intestate, against, to be inventoried 61 
 
 are assets, . . .• 61 
 
 to retain one copy of inventory, 63 
 
 to file " " " 63 
 
 time to file may be extended 68 
 
 to verify inventory filed, 63 
 
 who may administer oath to, 63 
 
 to provide sustenance to widow when, 63 
 
 duty of as to sustenance to widow, 63 
 
 may be summoned to file inventory, 64 
 
 after summons may be attached, 64 
 
 . if summons to file inventory cannot be served, letters to be 
 
 revoked, 65 
 
 may be charged personally with costs, 65 
 
 letters of may be revoked after thirty days imprisonment, 65 
 
 new may be appointed after revocation, 65 
 
 bond of may be prosecuted after revocation 65 
 
 liable for acts or omissions when, 65 
 
 imprisoned under attachment how discharged, 66 
 
 one or more may file inventory, 66 
 
 neglecting, to file inventory, not to interfere with estate, 66 
 where more than one, on filing inventory to have sole 
 
 power, , 66 
 
 learning of property not before inventoried, duty of, 66 
 
 23 
 
354 EXECUTOR'S AND ADMINISTRATOR'S GUIDE. 
 
 Page. 
 
 Administratob, advantages to, of filing inventory, 67 
 
 "burden of proof on, if inventory is not filed, 67 
 
 several, are in law but one person, 68 
 
 one of several may release mortgaged premises, 68 
 
 satisfy mortgage, 68 
 
 should keep estate fund separate, 68 
 
 one may retain assets from co-administrator, 68 
 
 mingling estate fund with their own, liable for losses, 68 
 
 may he required to deposit funds of estate, 
 
 should collect money not drawing interest, 69 
 
 neglecting money liable for losses, ■ 69 
 
 may maintain action, 70, 69 
 
 may treat transfer without consideration as void, 70 
 
 liable to action for trespass of testator, 70 
 
 for waste of intestate, 71 
 
 may sue in aU courts, 71 
 
 be sued in all courts except Justices 71 
 
 bound to collect in reasonable time, is liable for not doing so, 71 
 
 liable only for gross or collusive negligence, 71 
 
 bound to collect of persons in other slates 71 
 
 may retain distributive share to satisfy debt 73 
 
 cannot sue co-administrator, 73 
 
 indebtedness of, to intestate, how settled 73 
 
 debtor to estate, may be charged on final settlement, 73 
 
 may sell at public or private sale, 73 
 
 on credit except in New York 73 
 
 with security, 73 
 
 selling without security liable for loss, ._ 73 
 
 cannot purchase at sale 73 
 
 purchasiug, liable for gain 73 
 
 not to seU specific articles unless necessary, 74 
 
 may delay sale to meet market 74 
 
 should give notice of vendue, 74 
 
 to compromise claim should get order of court, 74 
 
 should obtain order to advertise for claims, 76 
 
 must act on claims personally 76 
 
 paying interest, admits claims, 77 
 
 is trustee for creditors, 77 
 
 caimot be forced to pay debts in less than a year, 77 
 
 may require vouchers with claims 78 
 
 affidavit " " 78 
 
 doubting justice of claims should reject, 78 
 
 may agree to refer claims, 78 
 
INDEX. 355 
 
 Page. 
 
 Administrator, proceedings to obtain reference, 78 
 
 should offer to refer to save from costs, 79 
 
 may plead six months neglect to sue, in bar, 79 
 
 protected in paying after advertising, 79 
 
 not liable to pay intestates debts unless 80 
 
 personally liable on his own contracts, .81, 80 
 
 after expii'ation of year pays legacies, 83 
 
 debts 82 
 
 order of payment of debts, 83, 83 
 
 to pay debts due under U. S. Laws, 83 
 
 taxes assessed at decease of intestate, 82 
 
 not to pay taxes assessed after " " 82 
 
 to pay assessment confirmed at " " 83 
 
 judgments and decrees and other debts, 88 
 
 purchase money of real estate, 83 
 
 not to pay mortages 83 
 
 may pay funeral expenses, and what they are, 85, 84 
 
 judgment against gives no preference, 85 
 
 may pay debts not due, reserving rebate, 85 
 
 rent preferred by surrogate 86, 85 
 
 cannot revive an outlawed debt, 86 
 
 pay " " " 86 
 
 should take receipt 86 
 
 may plead in suit that others debts are unpaid 87, 86 
 
 execution cannot issue against except on order, 87 
 
 to pay his own debt must obtain order, 88, 87 
 
 ' how to obtain order to pay his own debt, 88 
 
 must swear to his own claim, 88 
 
 cannot compound claims for his own benefit 88 
 
 buy claims against creditor, 88 
 
 pay his own outlawed debt, 88 
 
 when estate abundant may pay debts, 89 
 
 bond of may be sued to enforce legacies, 91 
 
 after one year may be sued for distribution, 94, 93 
 
 before suit may have bond, 94 
 
 may be cited to pay distributive share 96, 95 
 
 ordered to pay distributive share before one year, 97, 96 
 
 should invest moneys so as to bear interest, 97 
 
 in what should invest, 97 
 
 may be ordered to account after eighteen months, 98 
 
 surrogate will cite to account on application of bail 98 
 
 proceeding to procure order to account, 99 
 
 order to account how served, 99 
 
356 EXECUTOR'S AND ADMINISTRATOR'S GUIDE. 
 
 Page. 
 
 Administbatob, may be attaclied, 99 
 
 attached and not accounting, letters revoked, 99 
 
 may be charged personally with costs, 100) 99 
 
 contest right of petitioner for account, 100 
 
 apply for final settlement, when, 101 
 
 on final settlement, files his account 103 
 
 account of may be contested, 103 
 
 shall produce vouchers for debts, etc., 104 
 
 may be examined on oath 104 
 
 allowed items under twenty dollars, 104 
 
 items under twenty dollars to be sworn to, 104 
 
 may have allowance for losses, etc., 105, 104 
 
 not to make profit to himself on estate, 105 
 
 to account for gains '. 105 
 
 inventory pnma/flscie evidence against 105 
 
 may dispose inventory, 105 
 
 mixing estate funds with Ms own liable for interest, 105 
 
 cannot charge for services, . ., 105 
 
 commissions on pay for services 105 
 
 contestant of account, may allege what, 106 
 
 may be allowed claims inventoried as bad 107 
 
 where no inventory, whole estate charged to, 107 
 
 commissions how computed 109, 108 
 
 » where estate is $100,000,000 or more 109 
 
 to be allowed expenses, 109 
 
 cannot charge commissions on specific bequests, 110 
 
 acting as trustee, his rate of commission, 110 
 
 attorney, may have costs Ill 
 
 cannot receive beyond commissions for services Ill 
 
 whose letters were revoked may be cited 134 
 
 decree against may be docketed, 125 
 
 execution may issue against, on decree, 135 
 
 bond ofmay be sued after return" of execution, 135 
 
 attachment may issue against 135 
 
 proceedings on attachment against, 136 
 
 may file release of decree 138 
 
 apply for sale, etc., of real estate, 137 
 
 application for sale etc , to be made within three years,. . 138 
 
 file inventory before, 138 
 
 petition for sale etc., what to contain, 139 
 
 to be verified 139 - 
 
 all administrators must join in petition for sale, etc 130 
 
 in real estate proceedings, may be sworn 133 
 
INDEX. 357 
 
 Page. 
 
 ADMrNiBTRATOB, in real estate proceedings, any person may 
 
 oppose, 182 
 
 in real estate proceedings, should notify creditors, 133 
 
 to give bond before mortgage, or lease of real estate 136 
 
 sale 137 
 
 neglecting to give, freeholder may be appointed, 137 
 
 may sell real estate in parcels, 188 
 
 shall not be interested in purchase, 139 
 
 may give credit, 139 
 
 shall make report of sale, 139 
 
 to pay to surrogate, moneys after sale, 144 
 
 deliver securities to surrogate,. . . 144 
 
 may be attached for neglect 144 
 
 bond may be sued " " 144 
 
 compensations of on sale of real estate, 145 
 
 dying before sale &c., proceedings not to abate 145 
 
 may be reimbursed from proceeds ot real estate, 147 
 
 .after account, may be required to sell real estate, 150 
 
 proceedings by creditor against to effect sale, 150 
 
 may be required to show cause why he should not sell &c., 150 
 
 application against may be made after three years, 151 
 
 order to show cause, how served on, 151 
 
 oath of office of, form of, 226 
 
 bond of^form of, 227 
 
 petition to compel flliog of inventory by, form of, 249 
 
 order for summons to file inventory, form of, 350 
 
 order for commitment of, for not filing inventory, form of, 252 
 
 attachment against, form of, 253 
 
 order for revocation of letters for not filing" inventory, 
 
 form of, 354 
 
 revocation of letters of, form of, 255 
 
 petition of, for leave to prove debt, form of, 359 
 
 order for citation to, form of, 264 
 
 order that he render account, form of, 270 
 
 petition of, for final settlement, form of, 271 
 
 account, form of, , '. . . . 273 
 
 petition for assignment of bond of, form of, 301 
 
 order for same, form of, 303 
 
 Admission, of service of citation may be made, 102 
 
 exer. or admr. does not revive claims outlawed, 182 
 
 Advancement, to be accounted for on distribution, 119 
 
 reckoned as part of estate, 119 
 
 if not equal to share, child advanced to take, 119 
 
358 EXECUTOR'S AND ADMINISTRATOR'S GUIDE. 
 
 Page. 
 
 Advancement, if exceeding share, child excluded,. 119 
 
 release of distributive share on, valid, 130 
 
 maiutaining a child is not, 130 
 
 educating a child is not 130 
 
 provisions as to, not to apply when ^eal estate is devised,. 130 
 
 Affidavit to be made of service of citation, 81 
 
 of intention to file objections to issue of letters may be 
 
 filed 30 
 
 of intention to object to issue of letters, form of, 313 
 
 to be indorsed on inventory, form of, 348 
 
 to annex to claim, form of, 358 
 
 account, form of, 374 
 
 Alien, cannot devise real estate 13 
 
 may make will of personal property , 13 
 
 not inhabitant of state cannot be executor, 13 
 
 non-resident, not entitled to administer, 41 
 
 widow of, entitled to dower 184 
 
 widow entitled to dower when, 184 
 
 Allegations against validity of will may be filed within ;a year, 38 
 
 to contest probate, form of, 331 
 
 order for citation on, form of, 333 
 
 to contest account, form of, 376 
 
 Allowances, may be made for expenditures, 104 
 
 losses 105 
 
 Appeal may be had from decision on rehearing of proof, 39 
 
 from order removing guardian, 179 
 
 from order requiring new sureties 180 
 
 may be had to Supreme Court from order fixing dower,. 195 
 
 from decree, form of, 343 
 
 bond on, form of, 344 
 
 petition of, form of, 346 
 
 answer to petition as, form of, 349 
 
 Appraisal, see Iniientory, 844 
 
 Appkaisbbs, two to be appointed to take inventory, 53 
 
 may be appointed as occasion requires, 53 
 
 to fix value of personal estate, 53 
 
 who should be appointed, 53 
 
 surrogate usually consults parties as to 53 
 
 to be disinterested, 53 
 
 to be sworn 54 
 
 may adjourn 54 
 
 ex'r. or adm'r. to exhibit property to 54 
 
 mode of proceeding, 55 
 
INDEX. 359 
 
 Page. 
 
 Appeaisees, to set apart articles to widow or children, 59, 58 
 
 have discretion only as to what shall be set apart, 60 
 
 neglecting to set apart, others may be appointed, 60 
 
 may be directed to set apart to widow 60 
 
 to state their judgment of claims, 61 
 
 to inventory claims against executor or administrator,. . , 61 
 
 order for, form of, 244 
 
 Assignment, petition for, of bond, fortn of, 301 
 
 Attachment may issue against special administrator 45 
 
 may issue against executor or administrator for not filing 
 
 inventory, 64 
 
 may issue to enforce decree or order, 125 
 
 how issued and executed, 126 
 
 demand to be made before issue 126 
 
 copy of decree to be served before issue, 126 
 
 to issue on petition verified, 126 
 
 against executor or administrator for not filing inventory, 
 
 form of, 253 
 
 Attestation clause not necessary, 4 
 
 AuDiTOE, may be appointed on final settlement, 103 
 
 Bail, may apply for order that administrator account, 98 
 
 See Seeurity. 
 
 Bond, executor may be required to give, 34 
 
 if executor neglect to give, letters superseded, 34 
 
 husband to give on taking letters, 39 
 
 of administrator to be filed, 43 
 
 to be executed with two sureties, 43 
 
 penalty of, 43 
 
 execution of to be proved, 44 
 
 of executor or administratives may be prosecuted after 
 
 revocation, 65 
 
 to be given on payment of legacy or distribution when, . . 94 
 
 to be given on payment of legacy before one year, 97 
 
 distributive share before one 
 
 year, 97 
 
 on sale of real estate may be sued, 144 
 
 freeholder appointed, to give, 145 
 
 guardian to give 163 
 
 terms of, 164 
 
 of guardian to be filed, 164 
 
 may be prosecuted, 164 
 
 of administrator form of, 227 
 
360 EXECUTOR'S AND ADMINISTRATOR'S GUIDE. 
 
 Bond, on payment of legacy, form of, 366 
 
 on sale of real estate, form of, 381 
 
 petition for assignment of, form of, 301 
 
 order assigning, form of, 303 
 
 an appeal, form of, 344 
 
 Bkoteees, heirs or next of kin 17 
 
 when entitled to administration, 38 
 
 Bttkial, expense of, preferred 'claim, 11 
 
 See Funeral eteperises. 
 
 Cebtificatb to be attached to will 36 
 
 of decree, may be filed in clerk's office, 135 
 
 on filing, creates lien on real estate, «. 135 
 
 execution may issue on, 135 
 
 form of, 397 
 
 CHiLDRBir, heirs, when, 17 
 
 next of kin, when, 17 
 
 when entitled to administration, 38 
 
 rights of in surplus of estate 115 
 
 Citation to attend pbobatb to issue, 19, 18 
 
 to whom directed, 19 
 
 how served, 20, 19 
 
 when published, 31 
 
 served by mail 31 
 
 proof of service, i 31 
 
 executor may have expenses on service 33 
 
 executor may employ persons to serve, 33 
 
 new to issue if first not served, 33 
 
 on return of, adjournment when, 33 
 
 shall issue on filing allegations against wUl, 38 
 
 on allegations terms of, 38 
 
 how returnable 38 
 
 after service executor to suspend, 39, 38 
 
 how served, 39 
 
 on application for administration how served, 43, 43 
 
 to be served on attorney general when, 43 
 
 executor or administrator to give new sureties, 50, 49 
 
 how served, 50, 49 
 
 on return of proceedings,. . .51, 50 
 
 to guardian how served, 180, 178 
 
 proceedings as on complaint for removal,. . . ' 179 
 
 issue to minor, on petition of guardian to resign, 181 
 
 proceedings on return of, 182 
 
 order for onproof of wUl, form of, 303 
 
INDEX. 361 
 
 Page. 
 
 Citation, to attend proof of will, form of, 303 
 
 proof of service of, form of, 304 
 
 order for on objections to issue of letters, form of, 314 
 
 to executor on petition for removal, form of,. . . 319 
 
 on filing allegations to contest probate, form of, 333 
 
 to widow, etc., form of, 233 
 
 to widow, etc., form of, 333 
 
 order for, form of, 339 
 
 to administrator to show cause why letters should not be 
 
 revoked, form of, 340 
 
 order for, form of, 361 
 
 Claims, see debts. 
 
 of deceased against executor or administrator to be inven- 
 toried, 61 
 
 are assets, ... 61 
 
 advertising for, 68 
 
 to compromise executor or administrator should get order, 74 
 
 must show what to surrogate, 75 
 
 may be presented by letter, 76 
 
 against estate, to be advertised for, 76 
 
 need not be sworn to unless required 77 
 
 once admitted need not be again, presented, 77 
 
 must be presented personally, 76 
 
 power -to admit or reject cannot be delegated, 76 
 
 if interest be paid on, equal to admission 77 
 
 may be prosecuted, 77 
 
 . executor or administrator may require vouchers with,... 78 
 
 aifidavit with,. ... 78 
 
 reject, 78 
 
 proceedings for reference of, 78 
 
 rejected, barred unless prosecuted in six months, 79, 78 
 
 order of preference, in paying, 83, 83 
 
 allowed on final settlement directed paid, 104 
 
 sum may be retained to pay, on final settlement, 113 
 
 legality of, may be contested in real estate proceedings,. . 133 
 
 may be proved in real estate proceedings 133 
 
 proved to be entered by surrogate, 133 
 
 creditor may present on distribution, 147 
 
 may be contested, 147 
 
 order to advertise for, form of, 257 
 
 notice to creditors to present, form of, 257 
 
 affidavit to annex to, form of, 358 
 
 agreement to refer, form of, 259 
 
362 EXECUTOR'S AND ADMINISTRATOR'S GUIDE. 
 
 Claims, petition of executor for payment of, form of, 359 
 
 Codicil, form of, 199 
 
 Collection of estate, 199 
 
 OOLLBCTOB, unauthorized person to account to, 10 
 
 to be appointed when, 44 
 
 to take oath of office 7^ 44 
 
 must give bond, 44 
 
 duty, only collection and preservation, 44 
 
 may maintain action, 44 
 
 may sell under direction of surrogate, 45 
 
 conditions of bond of, 45 
 
 sureties of, liability, 45 
 
 may be ordered to deliver and account, 47, 45 
 
 must deposit moneys 46 
 
 shall not draw money without order, 46 
 
 to be appointed only on notice 46 
 
 not to sell property except by order, 46 
 
 notice of application for to be given 47 
 
 liable for interest, 47 
 
 petition for, form of, 330 
 
 Commitment, order for, for not filing inventory, form of, 253 
 
 attachment on, form of, 253 
 
 Commissions, to take proof may issue 35 
 
 all pay for services, 105 
 
 rate of allowance of, 109, 108 
 
 not allowed on specific bequests, 110 
 
 executor acting as trustee what he may have 110 
 
 not chargeable on legacies, Ill 
 
 short rule for computing, 110 
 
 of testamentary trustees, rate of, 138 
 
 ofguardians 176 
 
 allowed on annual income, 176 
 
 income only, annually, 177 
 
 CoMMissiONBKS TO Admbasurb Dower, to be sworn, 191 
 
 . how to proceed, 193 
 
 to make report, 192 
 
 how to report 193 
 
 may employ surveyor, 193 
 
 may have time enlarged 193 
 
 report of may be set aside, 193 
 
 new may be appointed, 193 
 
 may report admeasurement not practicable 194 
 
 order confirming report of may be appealed from 195 
 
INDEX. 363 
 
 Page- 
 
 Compensation of executor and administrator, see Oommiasions, 108 
 
 Complaint may be made against executor 33 
 
 that executor is incompetent, 38 
 
 executor's circumstances are pnecarious, 33 
 
 executor lias removed fi'om state, 33 
 
 is about to remove from state, 33 
 
 proceeding on 33 
 
 against executor slibuld be on batli, 34 
 
 CoMPBOMiSES by executors or administrators 68 
 
 to authorize executor or administrator, should get order, 74 
 
 made under order, protects executor or administrator,. . . 75 
 
 benefit of order to authorize, 75 
 
 Consent to have third person joined in administration not re- 
 vocable '. 41 
 
 of guardian to be given, .- 163, 163 
 
 of special guardian on proof of wUl, form of, 206 
 
 Contract, interest of deceased in, may be sold to pay debts, 154, 158 
 
 proceedings on sale, „ 151 
 
 bond to be taken of purchaser of, 154 
 
 money from sale of bond distributed, 155 
 
 Costs of admeasurement of dower had paid, 196 
 
 Conveyance to be made on sale of real estate, 141 
 
 requisites of, 141 
 
 Convict, cannot act as executor, 13 
 
 not entitled to administer 41 
 
 Ckbditob. may apply for probate, 16 
 
 entitled to administration with will annexed 33 
 
 when entitled to administration, 88 
 
 first applying entitled, 38 
 
 preferred to County Treasurer in administration, 39 
 
 public administrator preferrd in New York city, 39 
 
 may petition for return of inventory, 64 
 
 statute of limitations extended in favor of, 73 
 
 presenting claims at first accounting not barred, 73 
 
 must present claims to executors or administrators per- 
 sonally, 76 
 
 need not swear to claims unless required, 77 
 
 may prosecute claims 77 
 
 executor or administrator may require vouchers from, ... 77 
 
 affidavit from 88 
 
 may collect claims of heirs, &c 80 
 
 order of preference in payment of, 83, 83 
 
364" EXBCtTTOR'S AND ADMINISTRATOR'S GUIDE. 
 
 Page. 
 
 Ckeditok, with additional security, how to present 38 
 
 of involved firm, first prosecutes survivor, 84, 83 
 
 may have executor or administrator account, 98 
 
 how cited to attend final settlement, 103 
 
 may contest account of executor or administrator, 103 
 
 have decree for payment on final settlement, 113, 112 
 
 may present claim on distribution 147 
 
 claim of, may be contested, 147 
 
 may apply for order for mortgage, lease or sale, 150 
 
 proceedings on application, 150 
 
 notice to present claims, form of, 257 
 
 petitionof for payment of debt, form of, 263 
 
 receipt of, form of, 367 
 
 petitioti of, for accounting, form of, 268 
 
 petition of, for sale of real estate, form of, 304 
 
 Ceopb, widow may bequeath, 195 
 
 CoiTNSBL FEE, when allowed on settlement, 110 
 
 County Trbasukbr, when entitled to administration, 39 
 
 Damages, guardian suffering waste liable to treble, 169 
 
 widow entitled to for withholding of dower, 187 
 
 measure of, 187 
 
 Death, will takes effect upon, 1 
 
 of testator, on learning, duty of executors 7 
 
 Debts for funeral charges preferred, , 11 
 
 order of preference in paying ^3,82 
 
 due United States, entitled to preference, 82 
 
 taxes, " " 83 
 
 assessments, " " . , 83 
 
 judgments, " " 83 
 
 decrees, " " 83 
 
 other claims not preferred, 83 
 
 mortgages not to be paid as, 83 
 
 one not preferred above another of same class 85 
 
 due not preferred above those not dne, 85 
 
 judgment against executor or administrator gives no pre- 
 ference 85 
 
 not due may be paid granting rebate 85 
 
 for rents may be preferred by surrogate 86, 85 
 
 when estate abundant may be paid without delay, 89 
 
 payment of may be enforced by surrogate, 95 
 
 proceeding for enforcement, 96 
 
 vouchers for payment of to be filed, 104 
 
INDEX. 365 
 
 Page. 
 
 Debts, proceedings to sell, etc., real estate to pay, 138 
 
 legality of may be contested in real estate proceedings,. . 133 
 
 may be proved in real estate proceedings, 133 
 
 proved, to be entered by surrogate, 133 
 
 what do not authorize sale of real estate 134 
 
 not due to suffer rebate 147 
 
 to be paid by surrogate from proceeds of real estate, 147 
 
 petition of executor for leave to prove, form of, 359 
 
 creditor for payment of, form of, 363 
 
 order for citation on petition for payment of, form of, . . . 364 
 
 petition for payment of before six months, form of, 365 
 
 order to advertise for, form of, 857 
 
 Decree, enrolled against deceased, preferred debt, 86, 88 
 
 fixes commissions and distribution 108 
 
 of surrogate, may be appealed from, 
 
 conclusive only as to points stated in decree, 133 
 
 persons served with citation, 133 
 
 points settled by, 133 
 
 when enforced, 135, 134 
 
 certificate of, to be filed and docketed, 135 
 
 execution to issue on, 135 
 
 returned unsatisfied bond to be sued 135 
 
 attachment may issue to enforce, 135 
 
 how discharged, 137 
 
 against guardian, how discharged, 177 
 
 for final settlement, form of, 377 
 
 release of, form of, 380 
 
 certificate to be docketed, form of, 197 
 
 execution on, form of, 398 
 
 appeal from, form of, 343 
 
 Deed, on sale of real estate for debts, form of, 391 
 
 Demand, of dower, may be made within twenty years, 187 
 
 Dbposition, on proof of will, form of, 309 
 
 Descent of real property 17 
 
 Dbscenbants, distribution among, .' 115, &c. 
 
 begotten before decease, to take, 119 
 
 DiSABiLiTT to act as executor, how removed, 14, 13 
 
 DiscHAKGE, of decree, how effected 137 
 
 form of, , 380 
 
 DiSTKiBTJTiVB SHABB, may be witheld to satisfy debt to intestate,. 73 
 
 how collected by suit, 94, 93 
 
 payment of, how enforced after six months, 96, 95 
 
 before expiration of year, 97, 96 
 
366 EXECUTOR'S AND ADMINISTRATOR'S aUIDE. 
 
 Page. 
 
 DiSTRTBUTrvB Shaee, guardian may collect, 173 
 
 DiSTBiBUTiON of personal property 17 
 
 fixed by decree on final settlement, 113, 108 
 
 may be made of uncollected assets, Ill 
 
 among creditors &c. fixed by decree, 113, 113 
 
 estates of intestates, 117, 114 
 
 share of widow on 115 
 
 children on, 115 
 
 other next of kin 115 
 
 to be equal, where persons entitled are in same degree,.. . 117 
 to be apportioned per gtirpes where degrees are unequal, . . 117 
 
 rule as to representation, 117 
 
 per stm-pea and per capita when 118 
 
 relatives of half blood take with, those of whole blood,. . . 119 
 descendants born after death of intestate to take, when,.. 119 
 
 advancements to be accounted for on, 130, 119 
 
 of estates of married women,. 130 
 
 of proceeds of sale of real estate, 147 
 
 Dbvtsbes distinguished from heirs at law, 17 
 
 may intervene on probate, 34 
 
 to receive wiU, when 37 
 
 not to be sued for debt of testator within three years 153 
 
 DrvQiiCE.for/adultery cuts off dower, 185 
 
 JJOWE^ how^ sausned iJl real estate sold, /. . 146 
 
 how admeasured 184 
 
 what is, 184 
 
 who entitled to, , 184 
 
 alien widow entitled to, 184 
 
 does not vest in certain cases 185 
 
 against mortgage for purchase money, 185 
 
 divorce for adultery bars 185 
 
 inchoate how cut off, 186 
 
 cut off by j oining in conveyance 186 
 
 jointure, 186 
 
 widow to have one year to act, 186 
 
 testamentary provision bars, 186 
 
 petition for not election, 186 
 
 may be demanded within twenty years 
 
 on recovery of, widow entitled to damages, 187 
 
 lands, crop on may be bequeathed 187 
 
 may be admeasured by action, 187 
 
 petition to Supreme Court, 187 
 
 other courts, 187 
 
INDEX. 367 
 
 Page, 
 
 DowEK, statutory proceedings as to admeasurement, 183 
 
 admeasured on petition of widow, 188 
 
 petition for and notice to be served on lieirs or owners, 189, 188 
 
 guardians to be appointed for minors 189 
 
 heirs or owners may apply for admeasurement, 189, 190 
 
 proceedings on petition of heirs &c., 190 
 
 admeasurement of ordered, 190 
 
 proof on admeasurement, 191 
 
 freeholders appointed to admeasure, 191 
 
 refusing, to have others appointed, 191 
 
 duty of commissioners appointed, 193 
 
 report of commissioners, how made, 193 
 
 commissioners may employ surveyor, 193 
 
 time for report may be enlarged, , . . . 198 
 
 report may be set aside, 193 
 
 new commissioners may be appointed, 193 
 
 proceedings if admeasurement be not practlcabl*&c 194 
 
 widow may have income set off instead of, 194 
 
 order fixing income may be modified, 194 
 
 appeal from order confirming report of commissioners, . . 195 
 
 admeasurement may be controverted in an action, 195 
 
 widow recovering may occupy, lease &c., 195 
 
 costs of admeasurement, how paid 196 
 
 petition of widow for, form of, 387 
 
 appointment of commissioners, form of, 340 
 
 report of commissioners, form of, 341 
 
 Dktjnkabds, discharged from committee may act as executor,. . 14 
 
 DKUNKBinsfBss, renders incompetent to act as executor 13 
 
 incapacitates persons from administering, 41 
 
 degree of constituting incapacity, 41 
 
 Ejectment, widow may bring for dower, 195 
 
 Election, widow may have to take dower or legacy 186 
 
 petition for dower, not evidence of, 186 
 
 Execution, cannot issue against exr. or admr. until when 87 
 
 no appeal from order allowing, 87 
 
 if no assetts in hands of executor none can issue, 87 
 
 against executor, form of, 298 
 
 Execution op will, how done, 3, 3 
 
 ExECUTOB, powers and duties before probate, 7 
 
 may rellevehimself of trust, 7 
 
 remain passive 7 
 
 file renunciation, 7 
 
368 EXECUTOR'S ANB ADMINISTRATOR'S GUIDE. 
 
 Page. 
 
 ExECUTOB, in case of renunciation of one, remaining ones to act, 7 
 
 duty before probate, regulated by statute 8 
 
 sball not dispose of estate, 8 
 
 may sell to pay funeral charges 8 
 
 may sell perishable articles, 8 
 
 before probate, not to interfere, except to preserve estate, 8 
 
 to take cliarge of estate, , . . 8 
 
 de son tort, liabilities of, 10 
 
 liabilities of unauthorized person, 10 
 
 unauthorized person to account to, 10 
 
 power to make will implies power to appoint, 13 
 
 who may serve as, 13, 12 
 
 person, incompetent to contract not competent, 12 
 
 infant, " " 13 
 
 alien not inhabitant of state, " " 13 
 
 convict of infamous crime, " " 13 
 
 drunkard, " " 13 
 
 improvident person, " *' 13 
 
 person in precarious circumstances, not competent, 13 
 
 need not apply for probate, 16 
 
 if all dead orincompetent, whomay act, 18 
 
 may be allowed traveling expenses, 32 
 
 may employ person to serve citation, 32 
 
 course on learning that proof is contested, 34 
 
 to receive wiU after proof, when 37 
 
 to be cited, on allegations against will, 38 
 
 power of, to cease on annulling of probate, 29 
 
 to account, after annulling of probate, 29 
 
 acts of, before notice of annulling, valid 39 
 
 renunciation of, treated, ' 30 
 
 may renounce, 31 
 
 renunciation, how effected, 31 
 
 may be summoned to qualify, 31 
 
 not appearing after summons, deemed to have renounced, 31 
 if all renounce, etc., administrator, with will annexed, 
 
 to be appointed 31 
 
 if all incompetent, administrator with wUl annexed, to be, 33 
 
 may retract renunciation, 33 
 
 complaint may be made against, 33 
 
 that he is incompetent, 33 
 
 in precarious circumstances, ... 83 
 that he is about to remove from 
 
 state, 33 
 
INDEX. 369 
 
 Page. 
 ExEOtTTOB, complaint may be made that he has removed from 
 
 state, 33 
 
 proceedings on complaint against, 33 
 
 required to give security 34 
 
 summons to issue to, on complaint, 34 
 
 how served 34 
 
 if he do not give bonds, letters superseded, 34 
 
 if incompetent, letters superseded, 34 
 
 if improvident, bond required, 34 
 
 and administrators, if part die, etc., others to act, 48 
 
 all die' etc., new letters to issue, ... 48 
 sureties become insolvent, citation 
 
 to issue, 49 
 
 sureties remove from state, to issue, 49 
 
 insufBcient, " 49 
 
 may be enjoined 50 
 
 required to give new sureties, 51, 50 
 
 failing to give new sureties, letters revoked, 51, 50 
 
 sureties of may apply to be released 50 
 
 on application of sureties citations to issue to, 50 
 
 sureties of may be released as to future acts, 51 
 
 effect of revocation of letters to 51 
 
 absent or non resident, not accounting effect of, 53 
 
 letters may be revoked for cause, 53 
 
 acts of before revocation valid, 51 
 
 duty of, in relation to inventory, 53 
 
 may apply for appointment of appraisers, 53 
 
 See inventory. 
 
 may have subpoena to discover property, 55 
 
 cannot collect rent, accrued after testator's death, 57 
 
 may collect rent accrued before testators death, 57, 56 
 
 claims of testator against, to be inventoried, 61 
 
 are assets, 61 
 
 not released by will, 63, 61 
 
 not released from his own debt by bequest, 63 
 
 to retain one copy of inventory, 63 
 
 to file " " " " 63 
 
 time of to file may be extended, 63 
 
 to verify inventory filed , 68 
 
 who may administer oath to, 63 
 
 to provide sustenance to widow when, 63 
 
 duty of, as to sustenance to widow, 63 
 
 may be summoned to file inventory, 64 
 
 24 
 
370 EXECUTOR'S AND ADMINISTRATOR'S GUIDE. 
 
 Page. 
 
 ExBCUTOB, after summons, may be attached 64 
 
 if summons to file inventory cannot be served, letters to 
 
 be revoked, 65 
 
 may be charged personally with costs, 65 
 
 letters of may be revoked after thirty days imprisonment, . 65 
 
 bond of may be prosecuted after revocation, 65 
 
 liable for acts or omissions when, 66 
 
 imprisoned under attachment, how discharged 66 
 
 one or more may make inventory , 66 
 
 neglecting to file inventory, not to interfere with estate,. . 66 
 
 learning of property not before inventoried, duty of, 66 
 
 advantages of filing inventory, 67 
 
 burden of proof on contestants, if inventory is filed, 67 
 
 burden of proof on executor if inventory is not filed, 67 
 
 must show that he accounts for whole if no inventory is 
 
 filed, 67 
 
 several, are in law but one person 68 
 
 one of several may release mortgaged premises 68 
 
 satisfy mortgage, 68 
 
 one may retain assets, from co exr., 68 
 
 should keep estate fund separate, 68 
 
 mingling estate fund with their own, liable for losses, 68 
 
 may be required to deposit fund of estate, 68 
 
 m another state can sell property in this state 69 
 
 should collect moneys not drawing interest, 69 
 
 neglecting to collect money, liable for losses, 69 
 
 may maintain action, 70, 69 
 
 treat transfers without consideration as void, 70 
 
 liable to actions for trespass of testator 70 
 
 executor of Uable as testator, '71 
 
 may sue in all courts 71 
 
 be sued in all courts except justices 71 
 
 bound to collect in reasonable time or liable, 71 
 
 liable only for gross or collusive negligence, 71 
 
 bonnd to collect of solvent persons in other states, 71 
 
 may retain legacy to satisfy debt 72 
 
 cannot sue co-executor, 72 
 
 debtor to estate may be charged on final settlement 73 
 
 may sell at public or private sale, 73 
 
 on credit except in New York, 73 
 
 with security 73 
 
 selling without security liable for loss, 73 
 
 cannot purchase at sale, 73 
 
INDEX. 371 
 
 Page. 
 
 Executor, purchasing, liable for gain, 73 
 
 not to sell specific articles unless necessary 74 
 
 may delay sale to meet market, 74 
 
 should give notice of vendue, 74 
 
 to compromise claim, should get order of court, 74 
 
 should obtain order to advertise for claims, 76 
 
 must act on claims personally, 76 
 
 paying interest, admits claim, 77 
 
 is trustee for creditor , 77 
 
 cannot be forced to pay debts under a year, 77 
 
 may be sued, -. 77 
 
 may require vouchers with claims, 78 
 
 affidavit, " " 78 
 
 doubting justice of claim, should reject, 78 
 
 may agree to refer claims 78 
 
 proceedings to obtain reference, , 78 
 
 should offer to refer, to save from costs, 79 
 
 may plead six months, neglect to sue, in bar, 79 
 
 protested in paying, after advertising 79 
 
 not liable to pay testator's debts, unless, 80 
 
 personally liable on contracts made by him, 81, 80 
 
 after expiration of year pays debts, 83 
 
 legacies, 83 
 
 order of paying debts 83, 83 
 
 not to pay taxes assessed after decease of testator, 82 
 
 to pay taxes, assessed at, " " 83 
 
 assessments confirmed at " " 83 
 
 judgments, 83 
 
 other debts, 83 
 
 not to pay mortgages, 83 
 
 to pay purchase money of real estate, 83 
 
 may pay funeral expenses, and what they are, 85, 84 
 
 judgment against, gives no debt preference, . , 85 
 
 may pay debts not due, reserving rebate, 85 
 
 rent on order of surrogate, 86, 85 
 
 cannot revive an outlawed debt, 86 
 
 pay " " " 86 
 
 should take" receipt, 86 
 
 may plead thatother debts are unpaid, 87, 86 
 
 execution cannot issue against, except on order, 87 
 
 to pay his own debt, must obtain order, 88, 87 
 
 how to obtain order for payment of his debt, 88 
 
 must swear to his own claim, 88 
 
372 EXECUTOE'S AND ADMINISTRATOR'S GUIDE. 
 
 ExECTJTOK, cannot puKhaee claim for Us own benefit, 88 
 
 buy claims against creditors, 88 
 
 pay Ms own outlawed debt, 88 
 
 may retain legacy to pay debt 89 
 
 specific bequests, may be delivered by, 89 
 
 sbould take receipt for, 90, 89 
 
 when estate is abundant, may pay debts and legacies 89 
 
 not to pay legacies within a year or less, 90 
 
 paying legacy within year, may take bond, 90 
 
 after one yeai' must pay legacies 91 
 
 may be compelled to pay legacy 91 
 
 bond may be sold, to enforce legacies, 91 
 
 after one year may be sued for legacy, 94, 93 
 
 before suit, bond to be given to, 94 
 
 may be cited to pay legacy, 96, 95 
 
 surrogate may order to pay legacy before one year, 97, 96 
 
 should invest moneys so as to bear interest, 97 
 
 in what should invest, 97 
 
 may be cited to account after eighteen months, 98 
 
 by surrogate, when minors are interested, . . 98 
 
 proceeding, to procure order to account, 99 
 
 order to account, how served, 99 
 
 may be attached, 99 
 
 attached and not accounting letters revoked 99 
 
 may be charged personally with costs 100, 99 
 
 may contest right of petitioners for account, 100 
 
 if petitioner have appearance of interest, order to stand, . . 100 
 
 may apply for final settlement, when, 101 
 
 on final settlement files his account 103 
 
 account of may be objected to, 103 
 
 shall produce vouchers for, debts, &c. 104 
 
 may be examined on oath, 104 
 
 may be allowed items under twenty dollars, 104 
 
 items under twenty dollars to be sworn to, 104 
 
 may have allowance for losses 105, 104 
 
 notto make profit on estate 105 
 
 to account for gains, 105 
 
 inventory prima facie evidence against, 105 
 
 may disprove inventory, 105 
 
 mixing estate funds with his own chargable for interest, . . 105 
 
 cannot charge for services, 105 
 
 commissions are pay for services, 105 
 
 contestant of account of, may allege what 106 
 
INDEX. 373 
 
 Page. 
 
 ExEClTTOR, may be allowed claims inventoried as bad, 107 
 
 where no inventory whole estate charged, 107 
 
 commissions, rate of computation 109, 108 
 
 where estate is $100,000^ or over 109 
 
 commissions to be apportioned, '. 109, 108 
 
 cannot charge commission on specific bequests 110 
 
 acting as trustee, his rate of commission, 110 
 
 acting as attorney may be allowed costs, Ill 
 
 cannot receive beyond commission for services Ill 
 
 notwithstanding settlement may collect assets, 132 
 
 be charged, 133 
 
 whose letters were revolted may be cited, 134 
 
 proceedings where one of two is guilty of inisconduct, . . . 134 
 
 decree against maybe docketed, 135 
 
 execution may issue against on decree, 125 
 
 bond of may be sued on return of executins, 135 
 
 attachment may issue against, 135 
 
 proceedings on attachment against, 136 
 
 may file release of decree 137 
 
 may apply for mortgage lease or sale of real estate, 138 
 
 application for sale, &c., within three years, 138 
 
 to file inventory before, 138 
 
 petition of for sale &c., what to show, 139 
 
 to be verified, 139 
 
 all exrs. should join in petition for sale &c., 130 
 
 in real estate proceedings may be sworn, 133 
 
 any person may oppose, 133 
 
 in real estate proceeding should notify creditors 133 
 
 to give bond before mortgage or lease of real estate, '. 136 
 
 sale of real estate 137 
 
 neglecting to give bond, freeholder may be appointed,... . 137 
 
 may sell real estate in parcels 138 
 
 shall not be interested in purchase -. 139 
 
 may give credit, 139 
 
 shall make report of sale, 139 
 
 to pay moneys to surrogate after sale, 144 
 
 deliver securities to surrogate, 144 
 
 may be attached and compelled to pay, 144 
 
 bond of, may be sued for neglect to pay proceeds of real 
 
 estate, 144 
 
 dying before sale &c., proceedings not to abate, 145 
 
 compensation of on sale of real estate, 145 
 
 may be reimbursed firom proceed of real estate, 147 
 
374 EXECUTOR'S AND ADMINISTRATOR'S GUIDE. 
 
 Page. 
 
 ExBCTTTOB, after account may be reqtiired to sell, etc., real estate, 150 
 
 proceeding by creditor against, to effect sale, 150 
 
 may be required to show cause why he should not sell etc., 150 
 
 application against, may be made after three years 151 
 
 order to show cause, how served on, 151 
 
 renunciation, form of, 200 
 
 oath of, form of, 310 
 
 petition that he be summoned to justify or renounce, form 
 
 of, 215 
 
 summons to qualify or renounce, form of, ■ 216 
 
 ■ petition for removal of, after qualification, form of, 217 
 
 order that, be deemed to have renounced, form of, 217 
 
 citation to, on petition for removal, form of, 219 
 
 order superseding, form of, 320 
 
 petition to compel filing of inventory by, form of, 249 
 
 order for a summons to file inventory, form of, 250 
 
 summons to, to file inventory, form of, 351 
 
 order for commitment of, for not filing inventory, form of, 352 
 
 attachment against for not filing inventory, form of, .... 253 
 
 order for revocation of letters of, form of, 354 
 
 revocation of letters of, form of, 255 
 
 petition of, for leave to prove debt, form of, 359 
 
 order for citation to, form of, 364 
 
 order that he render account, form of, 370 
 
 petition of for final settlement, form of, 371 
 
 account, form of, 373 
 
 False Rbpbbsbntations, petition for revocation of letters issued 
 
 on, form of, 235 
 
 Father, heir, or next of kin, when, 17 
 
 citation served on, when, 20 
 
 of intestate, rights of in surplus, 116 
 
 of infant may appoint guardian for, 158 
 
 Final Settlement, on, surrogate may set apart to widow, ... 60 
 
 contestants have burdenof proof if inventory is filed, ... 67 
 executor or administrator may be charged with his debt 
 
 on, 72 
 
 by executor and adrninistrator, 98 
 
 executor or administrator may apply for, when, 101 
 
 petition for, what to state, 101 
 
 citation to issue for, 101 
 
 citation for, how served, 102, 101 
 
 when published 102 
 
INDEX. 375 
 
 Page. 
 
 Final Settlement, citation for, when served by mail, 102 
 
 persons cited to, may admit service 103 
 
 on return of citation, guardian appointed for minors, 103 
 
 executor or administrator to file his account 103 
 
 subpoenas may be issued on, 103 
 
 account may be referred to auditor, 103 
 
 in New York, referee may be appointed, 103 
 
 powers of referee on, 104, 103 
 
 claims allowed on, 104 
 
 vouchers for debts, etc., to be filed on, I04 
 
 executor or administrator may be examined on oath 104 
 
 allowance may be made on, for expenditures 104 
 
 , for expenditures not to exceed $500, 104 
 
 may be made for losses, etc., on 105, 104 
 
 inventory, prima fcida, evidence of value, 105 
 
 executor or administrator may be charged with interest on, 105 
 
 charged with gains on, 105 
 
 allowed for losses on, 105 
 
 contestant on, what may allege, 106 
 
 where affidavit to account is full, contestant has burden,. 107 
 
 on where no inventory, whole estate charged, 107 
 
 court on, governed by law and equity, 108 
 
 hearing on may be adjourned, 108 
 
 proof closed, surrogate makes decree, 108 
 
 decree on, fixes commissions, 108 
 
 distribution and legacies, 108 
 
 rate of allowance for commissions, •. . .109, 108 
 
 commission not allowed on specific bequests, 110 
 
 if part of estate remains to be distributed, course Ill 
 
 on, surrogate may direct sale of assets, Ill 
 
 sum may be retained on, to satisfy claim, 112 
 
 provisions of will may be declared null, on, 112 
 
 petition for, form of, 271 
 
 order for citation to, form of, 272 
 
 form of, account on 273 
 
 decree on, form of, 277 
 
 FoBFEiTTJHB, for not affixing residence, 3 
 
 by person signing testator's name, when, 3 
 
 FoKMS, will, 197 
 
 codicil, 199 
 
 renunciation of executor 200 
 
 petition for proof of will, 201 
 
 order for citation to heirs and next of kin, 203 
 
376 EXECUTOE'S AND ADMINISTRATOR'S GUIDE. 
 
 Page. 
 
 FoBMS, citation to attend, proof of will, 203 
 
 proof service of citation 304 
 
 consent of special guardian, 306 
 
 Order appointing special guardian, 306 
 
 petition for leave to intervene in proof, 307 
 
 Order that party may intervene, 308 
 
 deposition on proof of will, 309 
 
 oath of executor, 310 
 
 order admitting will to probate 311 
 
 for letters testamentary, 313 
 
 affidavit of intention to file objections, 313 
 
 objections to issue of letters testamentary, 313 
 
 order for citation on filing objections, ^14 
 
 petition that executor be sumtnoned, ' 315 
 
 summons to executor to qualify, 316 
 
 order that executor be deemed to have renounced, 317 
 
 application to remove executor, 317 
 
 order for citation to executor to show cause, or be super- 
 seded 319 
 
 order superseding executor, 380 
 
 allegations to contest probate 331 
 
 order for citation on filing allegations, 333 
 
 order for revocation of probate 333 
 
 renunciation of widow or next of kin 334 
 
 petition for administration, 335 
 
 oath of administrator, 336 
 
 bond of administrator, . . .^ 337 
 
 petition for administration with will annexed 888 
 
 appointment of collector, 380 
 
 order for administration with will annexed, 331 
 
 citation to widow &c. 331 
 
 citation to vfidow &c., 338 
 
 order for administration 384 
 
 petition for revocation of letters, 385 
 
 order for citation on last, 889 
 
 citation to show cause why letters should not be revoked, 340 
 
 order for revocation of letters , 341 
 
 appointment of appraisers, 344 
 
 notice of appraisement 344 
 
 inventory, 345 
 
 aflfidavit to inventory, ; "348 
 
 Petition that executor file an inventory,. . , 349 
 
 order for summons to executor to file inventory 350 
 
INDEX. 377 
 
 Page. 
 
 Forms, summons to executor, to file inventory, 251 
 
 order for commitment, 353 
 
 attachment for not filing inventory, 353 
 
 order for revocation of letters for not filing inventory, . . 354 
 
 revocation of letters 355 
 
 order to advertise for claims, 357 
 
 notice to creditors to present claims, 357 
 
 afflda,vit to annex claims, 258 
 
 agreement to refer claim, 259 
 
 petition for proof of debt to executor or administrator,. . . 259 
 
 order for citation on last, 361 
 
 petition for creditor for payment of debt, 263 
 
 order for citation, on last, 364 
 
 petition for payment of debt before six months, 365 
 
 bond on payment of legacy, 366 
 
 benefit of creditor 367 
 
 receipt for legacy, 368 
 
 petition for order to account, 368 
 
 order that executor account, 370 
 
 petition for final settlement, 371 
 
 order for citation to attend final settlement, 373 
 
 executors account, 373 
 
 affidavit to account, , , 374 
 
 allegations to contest account 276 
 
 decree on final settlement, 277 
 
 release for discharge of decree, 280 
 
 petition for mortgage &c. of real estate, 281 
 
 order to show cause, 284 
 
 order to show cause, real estate, ..... 384 
 
 for appointment of special guardian, 285 
 
 bond on sale of real estate, 286 
 
 order for sale of real estate, 287 
 
 notice of sale, 389 
 
 report of sale of real estate 389 
 
 order confirming sale, , 290 
 
 deed of real estate .' 391 
 
 notice to widow to elect, 294 
 
 consent of widow to take sum in gross, 294 
 
 annuity table and rule, 396 
 
 ■certificate of decree to be docketed, 297 
 
 execution on surrogate's decree, 398 
 
 petition for assignment of bond of admr. , 301 
 
 order assigning bond, 303 
 
378 EXCUTOR'S AND ADMINISTRAT GUIDE. 
 
 Paige. 
 
 PoBMS, citation that executor be ordered to sell real estate, 304 
 
 order that administrator show cause 306 
 
 > other persons show cause, 307 
 
 for sale on petition of creditor, 308 
 
 that executor file bond, 311 
 
 appointing freeholder to sell 312 
 
 petition for guardian, infant over fourteen, 313 
 
 order for appointment of guardian, 315 
 
 petition for guardian, infant under fourteen, 316 
 
 by relative 318 
 
 order fixing hearing, 319 
 
 notice to relatives, 330 
 
 Fbbbholdbk, surrogate may appoint to sell real estate, 137 
 
 to give bond before sale 138 
 
 duties of as to sale &c., 139, 138 
 
 to give bond, 145 
 
 may be appointed to mortgage or sell, 145 
 
 may be appointed on application of creditor, 153 
 
 appointed to admeasure dower, 191 
 
 FuNBBAi CHABGBs, executor may sell property to pay, 8 
 
 preferred 11, 84 
 
 what are reasonable, 84 
 
 where estate is abundant may include tomb stones, 84 
 
 allowed according to station of deceased, 84 
 
 in some cases may include mourning apparel 85 
 
 what are allowed, 85, 84 
 
 vouchers for to be filed, -, 104 
 
 Gamblbb, professional, incompetent to act as executor, 14 
 
 GuABDiAN, citation served on, when, 20 
 
 may not waive any formality, 32 
 
 special must appear in person, 24, 23 
 
 of infant to take letters, 41 
 
 maybe enjoined 50 
 
 required to give new sureties 50 
 
 failing to give new sureties, letters revoked, 50 
 
 letters issued to on false representation revoked 51 
 
 becoming drunken, letters revoked, 51 
 
 improvident " " 51 
 
 letters of may be revoked for cause 52 
 
 legacy over fifty dollars to be paid to, 92 
 
 to give additional security for legacy 92 
 
 may have suit for legacy or distributive share, 95 
 
INDEX. 379 
 
 PBge. 
 
 GuABDiAN, to be cited on final settlement, 103 
 
 distributive share to be paid to, 131 
 
 not to be interested in purchase of real estate, 139 
 
 and ward, 158 
 
 stand in place of father,.., 158 
 
 may be appointed, by whom, 158 
 
 father, 158 
 
 surrogate 158 
 
 Supreme Court, 158 
 
 consent of mother to appointment necessary 158 
 
 powers of, appointed by father 159 
 
 to have custody of person and estate, of ward, 160 
 
 may sue for wrongs, 160 
 
 liable to be removed, by Supreme Court, 160 
 
 may be compelled to account by Supreme Court 160 
 
 give security, 160 
 
 acceptance of trust, how inferred 160 
 
 may be appointed by Supreme Court, 160 
 
 appointed by Supreme Court, may be removed, 161 
 
 compelled to account, 161 
 
 continues until majority,. . 161 
 
 ■frhen father is living, 161 
 
 appointed by surrogate, 161 
 
 to give bond 163 
 
 terms of his bond, 164 
 
 maybe sued on bond, 164 
 
 powers of, appointed by surrogate, 164 
 
 to attend to nurture of ward, 165 
 
 not to permit ward to remain idle, 165 
 
 allowed for education and support, 165 
 
 not liable for necessaries furnished ward 166, 165 
 
 maybe removed 166 
 
 power of, as to personal estate 168 
 
 real estate, 166 
 
 to collect personal estate, 166 
 
 to lease real estate, 166 
 
 liable not leasing real estate, 166 
 
 cannot mortgage or sell real estate, 167 
 
 may agree to partition of real estate, 167 
 
 general powers of, 168 
 
 not to suflfer waste, 168 
 
 to repair real estate, 168 
 
 answerable to ward, 169 
 
380 BXECTJTOR'S AND ADMINISTRATOR'S GUIDE. 
 
 Page. 
 
 GuAEDLAN, suffering waste to pay treble damages 169 
 
 ■ cannot substitute himself for ward, 169 
 
 liability to ward, 170, 169 
 
 rate of interest against, 170 
 
 duty of, as to services, » 170 
 
 commission of, pay for services, 170 
 
 may be allowed for board of ward, 170 
 
 to expend only income, 170 
 
 may get autbority to expend principal, 171 
 
 bound to fidelity, and ordinary diligence, 171 
 
 appointed in another state, no authority in this 171 
 
 this state, no power in another, 171 
 
 to give security for legacy, 173 
 
 receive and collect distributive share of, 173 
 
 appointed by deed or wiU to account to court 173 
 
 to file annual account and inventory, 173 
 
 how compelled to account, 173 
 
 removed, 173 
 
 annual accounts, duty of surrogate to examine, 174 
 
 fuller account may be required of, 174 
 
 surrogate may remove for neglect to file, 174 
 
 may be cited to account,. .• 174 
 
 apply for citation to ward, 175 
 
 on settlement to make full account, 175 
 
 to account for interest, 175 
 
 may appear with ward without citation, 175 
 
 compensation of, 176 
 
 rate of commissions, 176 
 
 performing extra" services, allowance to 176 
 
 may charge annual commissions 176 
 
 annual commission only on income, 177 
 
 should file vouchers, 177 
 
 verify account by oath, 177 
 
 account of can be contested, 177 
 
 decree against, can be discharged 177 
 
 complaint may be made for incompetency, 177 
 
 wasting estate 177 
 
 forremoving, 177 
 
 insolvency, ground of removal 178 
 
 intemperance, " " " 178 
 
 misconduct " " " 178 
 
 marriage of woman, ground for removal, 178 
 
 citation to show cause, how served on, 178 
 
INDEX. 381 
 
 Page. 
 
 GuABDiAJSi, sureties of becoming insufficient, new required,. . . . 179 
 
 new sureties required, 180 
 
 liable to remove for neglect, 180 
 
 may resign, , .' 181 
 
 ma^ petition surrogate for leave to resign, 181 
 
 proceedings thereon, 181 
 
 proceedings on application for leave to resign,. 183, 181 
 
 shall render account, 183 
 
 may resign on delivery of property and assets 183 
 
 on resignation to take duplicate receipts, 183 
 
 new guardian appointed on resignation, 183 
 
 of minors entitled to notice in dower proceedings, 189 
 
 court may appoint in dower proceedings 189 
 
 special, consent to be appointed on proof of will, form of, 206 
 
 order appointing, form of, 306 
 
 special, order in real estate matters, form of, 385 
 
 petition of infant for, form of, 313 
 
 order for letters to, form of, 315 
 
 order for appointment of, form of, 831 
 
 bond of, form of, 332 
 
 account, annual, and inventory of, form of, 337 
 
 petition for removal of, 334 
 
 order for citation to, form of, 328 
 
 order for revocation of letters to, form of, 338 
 
 revocation of letters of, form of, 339 
 
 petition for new sureties, form of, 330 
 
 - order for citation to, form of, 331 
 
 for new sureties, form of, 333 
 
 removing guardian, form of, 333 
 
 petition of for leave to resign, form of, 334 
 
 order for citation on petition of, form of, 335 
 
 account of, form of, 336 
 
 petition to compel account of, form of, 336 
 
 order appointing in dower proceedings 339 
 
 Habitual dstjnkakds. See drunha/rds 
 
 Handwritinq, proof of testator and of witnesses, 35 
 
 Hbies-at-law, names &c., to be given on application for probate, 16 
 
 defined, 17 
 
 of full age may waive citation, 31 
 
 Hbiks, rights of, not impaired, 58 
 
 service, before sale of real estate, 131 
 
 not to be sued for debt of ancestor within three years,. . . 153 
 
382 EXECUTOR'S AND ADMINISTRATOR'S GUIDE. 
 
 Page. 
 
 Hbibs, entitled to notice in dower proceedings, 188 
 
 may have dower admeasured, 190 
 
 Husband, entitled to administer on estate of wife, 39 
 
 shall give bond, 39 
 
 liability of, as administrator, . . .■ ; 40 
 
 rights of, in estate of wife 130 
 
 Idiots may not make wills, 1 
 
 how served with citation, 20 
 
 Ignobance constitutes incompetency to act as executor, 13 
 
 Illegitimate pebsons, heirs and next of kin of, 18 
 
 children to take, when, 18 
 
 Illness of guaedian, p'ound for resigning, 183 
 
 Impbovidbnoe, constitutes incompetency to act as executor,. . 13 
 
 incapacity to administer, ' 41 
 
 Inchoate dower, how cut off, 186 
 
 Infant, cannot act as executor, i 12 
 
 coming of age, may act as executor, 14 
 
 how served with citation, 30 
 
 guardian of, may not waive formality 32 
 
 special guardian, on probate, 28 
 
 when entitled to administration, guardian to take,. ..... 41, 38 
 
 letters to guardian of revoked, when, HI 
 
 articles to be set apart to in inventory, 59, 58 
 
 legacy to, under fifty dollars may be paid to father 92 
 
 over fifty dollars paid to guardian, 93 
 
 with no guardian, legacy to be invested by surrogate 92 
 
 security to, on payment of legacy to guardian 93 
 
 duty of surrogatfe, as to securities taken by him , 93 
 
 entitled to securities on coming of age, 93 
 
 dying before of age, securities go to executor or adminis- 
 trator ^ 93 
 
 guardian of, may sue for legacy or, distributive share 95 
 
 interested in final settlement, how served, 103 
 
 special guardian to be appointed on final settlement 103 
 
 interest on legacy to, how computed 113 
 
 distributive share of, how paid 121 
 
 how served with order on sale of real estate 131 
 
 on sale of real estate to have special guardian, 132 
 
 guardians of, not to have interest in purchase, 139 
 
 moneys due to, from real estate, how disposed of, 148 
 
 to be invested, 148 
 
 securities how kept,. . . . 149 
 
INDEX. 383 
 
 Page. 
 
 Infant, guardian may be appointed for, 158 
 
 by father 158 
 
 by surrogate 158 
 
 by Supreme Court, 160, 158 
 
 power of guardian of appointed by father 160, 159 
 
 over fourteen years old, may apply for guardian,. ... 161 
 
 petition of, for guardian what should state, 163 
 
 under fourteen years, relatiye may apply for guardian, . . 162 
 notice of application to be given, . . 163 
 
 guardian of, to give bond, ; 163 
 
 may choose new guardian, 165 
 
 not to be permitted to live in idleness 165 
 
 guardian of, not liable for resources of, 166, 165 
 
 guardian of, to collect personal estate, 166 
 
 loan real estate, 166 
 
 real estate of, may be sold, 167 
 
 recover for selling 167 
 
 estate of, to be kept by guardian 168 
 
 responsibility of guardian suffering waste, 169 
 
 may have benefit of transaction of guardian 170, 169 
 
 rate of interest against guardian of, 170 
 
 guardian of, may not expend capital, 170 
 
 for education, etc., authority may be given to expend 
 
 capital, 171 
 
 guardian of, no power in another state, 171 
 
 guardian, to give security for legacy to 173 
 
 collect distributive share of, 173 
 
 guardians of, to file annual account, 173 
 
 inventory,. '. 173 
 
 guardians, how compelled to account, 173 
 
 removed, 173 
 
 guardian of may be required to file fuller account,. ...... 174 
 
 removed for not filing account, 174 
 
 coming of age, may cite his guardian, 175 
 
 be cited of guardian, 175 
 
 may appear with guardian without citation, 175 
 
 account of guardian of to be full, 175 
 
 commissions of guardian of, and rate, 177, 1 76 
 
 complaint against guardian, and removal, 178, 177 
 
 guardian's sureties may be renewed, 180, 179 
 
 marriage of, cause for relief of guardian, 181 
 
 may be cited to show cause why guardian should not 
 resign, 181 
 
384 EXECUTOR'S AND ADMmiSTRATOR'S GUIDE. 
 
 Page. 
 
 InrPAUT, guardian of may resign, 181 
 
 new guardian appointed for, 182 
 
 guardian of, entitled to notice in dower proceedings, 189 
 
 court will appoint guardian for in dower proceedings,. . . 189 
 
 consent of special guardian for, form of, ^06 
 
 order appointing " " " " " 206 
 
 order for special guardian for iu real estate matters, form of, 285 
 
 petition of for guardian, form of, 313 
 
 petition for guardian for, by mother, form of, 816 
 
 by relative, form of, 318 
 
 Insanb pessons, how served with citation 20 
 
 Incompetency of guardian, ground of removal, 177 
 
 IsrsoLVBNCT of guardian, ground for removal, 178 
 
 Intempebaucb of guardian, ground for removal, 178 
 
 Interest, executor or administrator may be required to deposit 
 
 funds so as to earn, 68 
 
 should be obtained on moneys in hand 97 
 
 executor or administrator to pay interest on estate, when, 105 
 
 computed on legacies, how, 113 
 
 citation of authorities in various cases, 114, 113 
 
 rate of, against guardian, 170 
 
 guardians to account for, 175 
 
 Intervene, petition for leave to, form of, 207 
 
 order for leave to, form of, 208 
 
 Intestate, letters of administration granted on estate of, 36 
 
 is one who leaves no will, 36 
 
 Inventory, duty of executor and administrator to take, 53 
 
 not necessary always to file, 53 
 
 two or more may be made, 54 
 
 notice of appraisement to be served, 54 
 
 to be posted 54 
 
 before taking, appraisers to be sworn, 54 
 
 appraisers may adjourn, 54 
 
 executor or administrator should arrange property, 54 
 
 how to be made 56, 55 
 
 whatto state, 56,55 
 
 each article to be stated separately, 55 
 
 value of each article to be stated, and how, 55 
 
 leases for years to be stated in, 55 
 
 interest in lands held from year to year 55 
 
 estate for life of another person, 55 
 
 interest in term of years, 55 
 
 inlands derived for term of years, 56 
 
INDEX. 385 
 
 Page. 
 
 Inventory, to included, trade fixtures, 56 
 
 crops growing, 56 
 
 produce raised annually 56 
 
 rent accrued to deceased, 56 
 
 to state, debts secured to deceased, 57 
 
 bonds, notes, stocks, etc., 57 
 
 money and things in action, 57 
 
 partnership property, how, 57 
 
 articles to be set apart to widow in, 59, 58 
 
 children in, 59, 58 
 
 articles to be set off to widow or minors, 59,58 
 
 to contain particular statement of notes, etc., 60 
 
 manner of stating assets, , 60 
 
 to class claims as good and bad, eta, 61 
 
 if no moneys, fact to appear in,.,. 61 
 
 claims of deceased, against exeicutor or administrator to 
 
 be stated in 61 
 
 two copies to be made and signed, 63 
 
 one copy to be retained, ....'. 62 
 
 filed with surrogate, 62 
 
 surrogate may allow more time to file, 62 
 
 to be verified by oath, 62 
 
 who may administer oath, 62 
 
 return of, how compelled 64 
 
 executor or administrator neglecting to return, may be 
 
 summoned, '64 
 
 after summons may be attached, 64 
 
 letters may be revoked for not filing, ' 65 
 
 executor or administrator not filing, not to interfere with 
 
 estate, 66 
 
 returning to have full power, 66 
 
 new to be made on discovery of new property, 66 
 
 making and filing of new, how enforced, 67, 66 
 
 advantages and necessity of, 67 
 
 fixes prima fade value, , 67 
 
 contestants have burden of proof to surcharge it, 67 
 
 when more is made, burden of proof on executor and ad- 
 ministrator ^ 67 
 
 prima fade evidence of value, 105 
 
 may be contradicted, 105 
 
 may be surcharged on final settlement, 106 
 
 effect of as to value of claims, 107 
 
 guardian to file annual, 173 
 
 25 
 
386 EXECUTOR'S AND ADMINISTRATOE'S GUIDE. 
 
 Page. 
 
 Inventobt, notice of making, form of, 244 
 
 form of, 245 
 
 affidavit to, on filing form of,. , 248 
 
 petition tliat executor be compelled to file, form of, 249 
 
 order for summons to executor to file, form of, 350 
 
 summons to executor, to file form of, 351 
 
 order for commitment for not filing, form of, 353 
 
 attachment for not filing, form of, 253 
 
 order for revocation for not filing, form of, 355 
 
 Investments, rule as to, 97 
 
 Judgment against deceased, preferred debt, 86, 88 
 
 lands sold subject to 141 
 
 sale, surplus moneys on, to be paid to surrogate, 149 
 
 Lands, contract for purchase of, may be sold, 153 
 
 see real estate. 
 
 Lease of Real Estate, may be made to pay debts, 138 
 
 bond required on, . . .' 136 
 
 Lease, guardian has power to, 169 
 
 petition for, form of,. 281 
 
 Legacy, may be withheld to satisfy debt of legatee, 73 
 
 specific may be delivered, i 89 
 
 may be retained to pay debt, 89 
 
 not to be paid within a year, unless directed by will,. ... 90 
 
 when paid within a year, bond to be taken, 90 
 
 terms of bond, when paid within a year, 90 
 
 to be paid absolutely after expiration of year 91 
 
 subject to abatement, when ■ 91 
 
 what is not subject to abatement 91 
 
 payment of, how enforced ' 93, 91 
 
 when under fifty dollars may be paid to father, 93 
 
 over fifty dollars to be paid to guardian 93 
 
 if no guardian invested by surrogate, 92 
 
 may be sued for after one year, 94, 93 
 
 before suit for bond to be given, 94 
 
 suit may be had for, by guardian 95 
 
 payment of, may be decreed by surrogate, . . 96, 95 
 
 proceedings before surrogate to collect, 96, 95 
 
 vouchers for, to be filed, 104 
 
 interest how computed on various cases 113 
 
 security to be given for, by guardian, 172 
 
 bond on payment of, form of, 366 
 
INDEX. 387 
 
 Page. 
 
 Legacy, receipt for, form of, 268 
 
 Lb&atbb, distinguished from next of kin, 17 
 
 may intervene on probate, 24 
 
 to receive will, when, 27 
 
 residing in this state, to be cited on allegations, 28 
 
 residuary entitled to administration with wiU annexed,. 32 
 
 principal " " " " " " 32 
 
 specific, " " " " " " 83 
 
 entitled to notice of appraisement, 54 
 
 may attend appraisement, 55 
 
 may have return of inventory compelled, 64 
 
 may have order that executor account, 98 
 
 how cited to attend final settlement 102 
 
 may contest account of executors 103 
 
 objections by, 108 
 
 receipt of, form of, 368 
 
 petition of, for accounting, form of, 268 
 
 Letttks of Administeation with will annexed, granted when, 32 
 
 who entitled,. 33 
 if executors su- 
 perseded,... 34 
 
 extend only to assetts in the state, 35 
 
 three forms of, 36 
 
 letters of collection, 86 
 
 with will annexed, 36 
 
 granted in intestates estate, when 36 
 
 jurisdiction of surrogate to grant, 37, 36 
 
 on application for, proof to be produced 87 
 
 surrogate must examine applicant 37 
 
 may examine other persons, 37 
 
 proof included in petition for, 38 
 
 to whom granted, and order of priority, 38 
 
 males preferred to females, 39 
 
 relative of whole blood, preferred, 39 
 
 unmarried woman preferred, '. 39 
 
 where several apply for discrection of surrogate, 39 
 
 husband entitled to, 39 
 
 not to issue to relative not next of kin 89 
 
 on issue to husband he shall give bond, 39 
 
 how granted on estates of non residents .■ . . 40 
 
 person entitled may have another joined, 40 
 
 consent, to have another person joined by petition 40 
 
 not to issue to convict 41 
 
388 EXECUTOE'S AND ADMINISTEATOE'S GUIDE. 
 
 Page. 
 Lbttkbs of Admhtisthation. one incapable of contracting, not 
 
 to take, 41 
 
 non resident alien, not to take, 41 
 
 minor, " " " 41 
 
 drunkard, " " " ,41 
 
 improvident person, " " " 41 
 
 one lacking understanding, not to take, 41 
 
 on application for, only statutory causes exclude, 41 
 
 may be refused to ignorant person 43 
 
 before issue renunciation, when filed, 43 
 
 citation to issue on application for, 43 
 
 citation on application for, how served 43 
 
 to issue on filing of renunciation, 43 
 
 on return of citation, 43 
 
 on taking oath, 43 
 
 on filing bond 43 
 
 special to issue, 44 
 
 See Collector. 
 
 when new to issue 48 
 
 to be revoked if will be proved, 49 
 
 revoked, when issued on false representations, 51 
 
 when administrator becomes drunJsen, 51 
 
 improvident, &c.,. . 51 
 
 may be revoked for not filing inventory , 65 
 
 may issue after revocation, 65 
 
 after revocation supersede former letters, 65 
 
 give power only in this state, 69 
 
 renunciation of right to, form of, 334 
 
 petition for, form of,: 325 
 
 order for, form of,. 234 
 
 petition for revocation of, form of, 385 
 
 citation to show cause on revocation of, form of, 340 
 
 order for revocation of, form of; 341 
 
 revocation of, form of, 354 
 
 revocation of, form of, 355 
 
 Letters tbstamentaby, objection to issue of, 18, 13 
 
 idiot cannot take 14 
 
 convict cannot take, 13 
 
 habitual drunkard cannot take, 13 
 
 alien non-resident connot take, 13 
 
 improvident person cannot take, 13 
 
 person in precarious circumstances cannot take, 13 
 
 gambler cannot take, 14 
 
JNDBX. 389 
 
 Page. 
 
 IjETTRBS OF ADMINISTRATION, married woman may take, 13 
 
 objections to issue, how tried, 14 
 
 how removed 13 
 
 addressed to discretion of surrogate, . . 15 
 
 decision of surrogate on issue, appealable, 15 
 
 may issue forthwith, when, 31 
 
 grantingof, 30 
 
 may issue, 30 
 
 objections to issue may be filed 30 
 
 to be stayed on filing of affidavit, 30 
 
 objections to issue to be tried, 30 
 
 to issue after oath of ofllce, 31 
 
 on will of testator without the state, 32 
 
 after issue complaint may be made, 33 
 
 superseded if executor do not give bond 34 
 
 extend only to assets in the state, 35 
 
 general provisions, 48 
 
 when executor become lunatic, 48 
 
 when revoked as to one executor, other to act, 43 
 
 when executor is convicted of crime 48 
 
 give power only in this state, 67 
 
 order for issue o^ form of, 212 
 
 affidavit of intention to object to issue, form of, 212 
 
 objection to issue o^ form of, ; . 213 
 
 order for citation as objections, form of, 214 
 
 order for revocation of, form of, 254 
 
 revocation of, form o^ 255 
 
 Ijimitations, statute of, extended in favor of estates, 72 
 
 creditors, 72 
 
 not available when, 73, 72 
 
 short statute of six months, 79, 78 
 
 waived by negotiations 79 
 
 creditor barred by, may sue heirs, etc., 80 
 
 statute of, executor or administrator cannot waive, 86 
 
 may be pleaded by any party, 86 
 
 executor cannot pay his own debts, barred by, 88 
 
 may be pleaded by any person, 88 
 
 BOt/a defence, when, 89, 88 
 
 may be interposed on claim for legacy, 95 
 
 in real estate proceedings, 132 
 
 claim barred by, not revived by admission, 132 
 
 as to dower proceedings, 187 
 
 Ltjnatic, how served, with citation, 20 
 
 discharged from comnHttee, may act as executor, 14 
 
390 EXECUTOR'S AND ADMINISTRATOK'S GUIDE. 
 
 Page. 
 
 Mabinbes, may make unwritten will, 3 
 
 may make nunioipative will at sea 5 
 
 when considered at sea, 5 
 
 Makkied Women, may not bequeath property acquired before 
 
 1848, : 1 
 
 may make will, 1 
 
 competent to act as executors, 13 
 
 may give bonds, IS 
 
 dying intestate, husband to take letters, 39 
 
 may take letters as if unmarried, 41 
 
 distribution of estates, of, 121, 120 
 
 Mabbiage of women guardian, ground for removal, 178 
 
 of ward, cause for relief of guardian, 181 
 
 what is ^wma/oci* evidence of, 191 
 
 MiNOB, cannot act as executor 12 
 
 Coming of age, may act as executor 14 
 
 how served with citation, 20 
 
 guardian of, may not waive formality, 23 
 
 special guardian to be appointed for, on probate, 33 
 
 special guardian to be appointed for, ^9 
 
 when entitled to administration, guardian to take, 41, 38 
 
 letters to guardian of, revoked when, 51 
 
 articles to be set apart to, in inventory, . ' 59, 58 
 
 legacy to, under fifty dollars may be paid to father 93 
 
 over fifty dollars may be paid to guardian, ... 98 
 
 with no guardian, legacy to be invested by surrogate,. ... 92 
 
 security to, on payment of legacy, 93 
 
 duty of surrogate, as to securities for legacy, 93 
 
 entitled to securities on coming of age 93 
 
 dying before of age securities go to executor or adminis- 
 trator, 93 
 
 guardian of, may sue for legacy or distributive share,. ... 95 
 
 interested in final settlement, how served 103 
 
 special guardian to be appointed on final settlement, 103 
 
 legacy to, how interest computed on, 113 
 
 distributive share of, how paid, 121 
 
 how served with order on sale of real estate, 131 
 
 on sale of real estate to have special guardian, 132 
 
 guardian not to have interest in purchase 139 
 
 moneys due to on real estate sale, how disposed of, 147 
 
 to be invested, 148 
 
 securities, how kept, . . 149 
 
 general guardians may be appointed for, 158 
 
INDEX. 391 
 
 Page. 
 
 MiNOB, guardian for, may be appointed by father, , 158 
 
 by surrogate, 158 
 
 by supreme court, . 160, 158 
 consent of mother to appointment of guardian when nec- 
 essary, 158 
 
 powers of guardian of, appointed by father 160, 159 
 
 guardian of appointed by father to have custody of, 160 
 
 care of estate,. . 160 
 
 supreme court may appoint guardian for, 160 
 
 over fourteen years old may apply for guardian, 161 
 
 petition of for guardian what to show, 162 
 
 under fourteen years, relative may apply for guardian, , . 162 
 notice of application to be given, . . 163 
 
 guardian of to give bond, 163 
 
 may choose new guardian, 165 
 
 not to be permitted to live in idleness, 165 
 
 guardian of not liable for necessaries of, 166, 165 
 
 guardian of to collect personal property of, 166 
 
 law real estate of, . . 166 
 
 real estate of may be sold, 167 
 
 reasons for sale of, 167 
 
 estate of to be kept by guardian 168 
 
 responsibility of guardian of, suffering waste, 169 
 
 may have benefit of transaction of guardian, 170, 169 
 
 rate of interest against guardian of, 170 
 
 guardian of not to expend capital unless, 171 
 
 no power of, if in another state, 191 
 
 guardian of to give security for legacy 172 
 
 to invest distributive money, 172 
 
 guardian of to file annual account, 173 
 
 inventory, 173 
 
 guardians, how compelled to account, 173 
 
 removed, 173 
 
 guardian of may be required to file fuller account, 174 
 
 removed for not filing 174 
 
 arriving at age may have guardian cited, 175 
 
 arriving at age may be cited by guardian, . ., 175 
 
 may account with guardian without citation, 175 
 
 account of guardian to be full, 175 
 
 commissions of guardian of and rate 177, 176 
 
 complaint against guardian and removal 178, 177 
 
 guardian sureties may be renewed, 180, 179 
 
 marriage of cause for relief of guardian,. 181 
 
392 EXECUTOR'S AND ADMINISTRATOR'S GUIDE. 
 
 Minor, may be cited to show cause wliy g'dn. should not resign, 181 
 
 guardian of, may resign, 181 
 
 new guardian may be appointed for, . 183 
 
 guardian of, entitled to notice in dower proceedings', .... 189 
 
 court will appoint guardian for, in dower proceedings, . . 189 
 
 consent of special guardian, form of, 309 
 
 order appointing special guardian, form of, 206 
 
 order for special guardian for, in real estate matters, form 
 
 of, 285 
 
 petition of for guardian, torm of, 313 
 
 order for guardian for, form of, 315 
 
 petition by mother of, for guardian, form of, 316 
 
 relative, " " " 318 
 
 order for appointment of guardian for, form of, 321 
 
 MoKTSAGE, one executor or administrator may release from, ... 68 
 
 discharge, ...... 68 
 
 not to be paid out of personal estate, 83 
 
 of real estate, may be made to pay debts,. ...... y.. 128 
 
 bond required on, 136 
 
 land sold for debts, are subject to, 141 
 
 sale, surplus moneys on, to be paid to surrogate, 149 
 
 • petition for, form of, .- 281 
 
 MoTHBB, heir or next of kin, 17 
 
 citation served on, when, 20 
 
 of intestate, rights of, in surplus 116 
 
 Next of Kin, names, etc., to be given on petition for probate,. 16 
 
 defined,, 18,17 
 
 of full age, may waive citation,. 27 
 
 may contest validity of will within a year, 28 
 
 entitled to administration with will annexed, 32 
 
 rights of as to administration,. 38 
 
 to have notice of appraisement, ." 54 
 
 may attend appraisement, " 55 
 
 may petition for return of inventory, 64 
 
 may have action for distribution,. 94, 93 
 
 before suit to give bond, 94 
 
 distribution to, may be decreed by surrogate, 95, 94 
 
 may petition that administrator account, 98 
 
 how cited to attend final settlement, 102 
 
 may contest account of administrator, Ia3 
 
 rights of in surplus of estate 115 
 
 where there is none, nor any widow, surplus to be paid to 
 
 state treasurer, 121 
 
INDEX. 393 
 
 Page. 
 
 Next of Kin, renunciation of, fonn of, 234 
 
 order for citation to, form of, 332 
 
 Notice to be given and published of annulling of probate, .... 29 
 
 to widow on sale of rfeal estate 148 
 
 of hearing on application for guardian to be given, 163 
 
 of application for dower, how served 188 
 
 to creditors to present claims, form of, 357 
 
 of sale of real estate, form of, 389 
 
 to heirs in decree, proceedings, 340 
 
 NxmcuPATrvB Wills, may be made by soldiers and mariners, . 3 
 
 how made, 5 
 
 testimony to be recorded '. 5 
 
 letters to issue on, 5 
 
 one witness sufllcient, 163 
 
 Oath of Office of executor to be filed with surrogate 31 
 
 may be taken before whom, 31 
 
 of administrator, who may administer, 43 
 
 Oath, before acting, appraisers to take, 54 
 
 to inventory, to be taken by executor or administrator,. . 63 
 
 who may administer, 62 
 
 account to be verified by, 104 
 
 guardian, annual account to be on, 173 
 
 commissioners to admeasm'e, dower to take, 191 
 
 of executor, form of, 210 
 
 of administrator, form of, 226 
 
 Objections to issue of letters may be filed 80 
 
 may be made to account of executor or administrator filed, 103 
 
 to account filed, what may be charged 107, 106 
 
 to issue of letters, afBdavitof intention to file, form of, . . . 213 
 
 to issue of letters, form of, 213 
 
 order for citation on filing, form of, 214 
 
 Okdee for probate ^nd record to be made, 26 
 
 to show cause, in real estate proceedings, how served, ... 130 
 
 removing guardian may be appealed from, 179 
 
 that guardian give new sureties may be appealed from,. . 180 
 
 for citation on proof of will, form of, 303 
 
 appointing special guardian on proof of wiU, form of, ... . 306 
 
 that party may intervene on probate, form of, 308 
 
 admitting will to probate, form of, 311 
 
 for issue of letters testamentary, form of, , 313 
 
 for citation on objections to issue of letters, form of, 314 
 
 that executor be deemed to have renounced, form of, 217 
 
394 EXECUTOR'S AND ADMINISTRATOR'S GUIDE 
 
 Page. 
 
 Oeder for citation on petition to remove executor, form of, ... . 319 ' 
 
 superseding executor, form of, 320 
 
 for citation on filing allegations to contest probate, form of 223 
 
 for revocation of probate, form of, 323 
 
 for administration with v^ill annexed, form of, 331 
 
 for citation to widow, &c., form of, . . 333 
 
 for letters of administration, form of, 334 
 
 for citation to show cause why letters should not be re- 
 voked, form of, 389 
 
 for revocafion of letters, form of, 341 
 
 appointment of appraisers, torm of, 344 
 
 for summons to executor or administrator to file inventory, 
 
 form of, 350 
 
 for commitment, form of, 253 
 
 for revocation of letters for not filing Inventory, form of,. 254 
 
 to advertise for claims, form of, 257 
 
 for citation, form of, 261 
 
 for citation to administrator to pay debt, form of, 264 
 
 to show cause why lands should not be sold, form of, 384 
 
 for sale ofreal estate, form of, 287 
 
 pARTNBBSHip AssBTS, how to be Stated in inventory, 57 
 
 rights of executor or administrator in, 58 
 
 Penalty for not affixing residence to vrttness name, 3 
 
 Personal estate, will to be recorded as a will of, when, 35 
 
 proof of will of, 26 
 
 Personal property, persons entitled as next of kin 18, 17 
 
 cotton machinery is, ' 56 
 
 looms in woolen mill are 56 
 
 manure is in certain cases, 56 
 
 See Inventory. 
 
 Petition for probate to be presented, 18 
 
 for probate, course on presentation, 19 
 
 for probate supplementary, when filed, 33 
 
 ■ for administration, what must contain, 38 
 
 that executor be summoned to qualify or renounce, form of, 215 
 
 for order to compromise, what to contain, 75 
 
 for accounting, wh^ to contain, ;. . . 99 
 
 of infant for guardian, what to state, 163 
 
 relative of infant may make, 162 
 
 hearing on notice of, to be given 163 
 
 for guardian, what to state 163 
 
 should be verified,,.... 163 
 
INDEX. 395 
 
 Page. 
 
 Pbtition for dower, -widow may apply by, 188 
 
 proof of will, foi-m of, 201 
 
 leave to intervene on proof of will, form of, 207 
 
 removal of executor, form of, 317 
 
 administration, form of, 235 
 
 with will annexed, form of, 228 
 
 appointment of collector, form of, 230 
 
 revocatipn of letters, form of, 335 
 
 that executor or administrator file inventory, form of,. . . 249 
 
 of executor for leave to prove, form of, 259 
 
 creditor for payment of debt, form of, 362 
 
 creditor for payment before six months, form of, 265 
 
 for order to account, form of, 368 
 
 final settlement, form of, 271 
 
 mortgage, etc., form of, 281 
 
 assignment of bond of administrator, form of, 301 
 
 of creditor for sale of real estate, form of, 304 
 
 pREFEKBNCB, in payment of debts, order of, e* seq., 83 
 
 Pbobatb, power of executor before, 7 
 
 any person interested, may apply for, 16 
 
 on application for facts to be given,... 16 
 
 petition for to be presented, 18 
 
 course on presentation of petition for 19 
 
 citation to attend, proof of, how served 30, 19 
 
 parties of full age, may ask immediate, 33, 31 
 
 supplementary petition for, when 23 
 
 if citation not served, new one to issue 23 
 
 proof requisite on 25 
 
 Qf will of personal estatCj 26 
 
 real property, 26 
 
 new hearing on, within a year 28 
 
 allegations against may be filed, 28 
 
 to be revoked, when, 29 
 
 confirmed, when 29 
 
 when annulled, notice to be given to executor 29 
 
 published, 29 
 
 Pkoof of Will, petition for proof, form of, 301 
 
 order for citation on, form of, 203 
 
 petition for leave to intervene on proof of will, form of,.. 207 
 
 order that party may intervene on, form of, 208 
 
 deposition on, form of, 209 
 
 order admitting will to, form of, 211 
 
 allegations to contest, form of, 331 
 
396 EXECUTOR'S AND ADMINISTRATOR'S GUIDE. 
 
 Page. 
 
 Proof of Wjil, order for reYOcation of, form of, 233 
 
 Publication of wiU, how made , , 33 
 
 accuracy, 3 
 
 Public Adsiiiiistbatob, has preference to creditgrs iii adminis- 
 tration, when, , 39 
 
 Real Estate, alien cannot devise 31 
 
 persons entitled as heirs, 17 
 
 proof of, 36 
 
 wills affecting, proved out of state may be recorded 37 
 
 may be recorded in other counties 37 
 
 administrators have no charge of, 86 
 
 hop poles are part of, 56 
 
 manure part of in certain cases 56 
 
 water wheels, mill stones, etc., are part of, 56 
 
 decree for money may be made a lien on 135 
 
 mortgage, lease or sale of, to pay debts, 128 
 
 application for sale &c., by petition, 138 
 
 by executors &c., within three years, 138 
 
 before inventory to be filed, 138 
 
 devised or inherited unless when, 138 
 
 petition for sale &c., what to show 139 
 
 what must appear to authorize sale, , 130 
 
 order to show cause, to be made, 130 
 
 how served, 131, 130 
 
 how served on minors, 181 
 
 to be published 131 
 
 publication of order to show cause necessary 131 
 
 tobemaUed, 133 
 
 on return of order, special guardian to be appointed, 132 
 
 executor or administrator may be ex- 
 amined, 133 
 
 witnesses may be sworn, , 133 
 
 persons interested may contest, 133 
 
 debts may be proved on, 138 
 
 vouchers to be filed in court, 133 
 
 requisites before order of sale, 133 
 
 order for sale, not to be made for expenses, 134 
 
 sale &c., may be ordered, when 135 
 
 lease of, how long may be made 135 
 
 lease or mortgage, validity of, 135 
 
 when peculiarly situated, more may be sold than necessary, 136 
 
 order for sale of, to specify order of sale, 186 
 
INDEX. 3-97 
 
 Real Estate, bond to be given before sale ordered, 137 
 
 executor or administrator neglecting to give bond, free- 
 freeholder may be appointed, 137 
 
 notice of sale of, to be posted 138 
 
 published 188 
 
 vrhat to contain, 188 
 
 sale of, when made 188 
 
 administrator may sell in separate parcels, 138 
 
 amount purchase should pay on sale 138 
 
 executor or administrator not to be interested in sale of,. 139 
 
 credit may be given on sale of, 139 
 
 report to be made of sale of, 189 
 
 sale may be set aside 189 
 
 new sale may be ordered 189 
 
 sale may be confirmed in part, 140 
 
 conveyance may be ordered 140 
 
 purchaser on sale of holds growing crops, 140 
 
 requisites of conveyance of, 141 
 
 validity of sale, 141 
 
 title of, not to be impeached, .142, 141 
 
 freeholder may be appointed to sell, ete., , 145 
 
 proceeding not aflfected by death of executor or adminis- 
 trator, 145 
 
 surrogate pays first charges and expenses, 146 
 
 satisfies dower, 146 
 
 dower in, how estimated, 146 
 
 securities for to be kept, 146 
 
 distribution of, proceeds of, 147 
 
 surplus moneys on sale of, by mortgage, and how paid,. . 149 
 
 to be distributed by surrogate, 149 
 
 creditor may apply for sale of, 150 
 
 order that executor or administrator show cause 150 
 
 how served on executor or administrator, 151 
 
 proceedings for sale &c., on application of creditor,. . . 151, 150 
 
 executor or administrator may be ordered to sell, &c.,. . . . 152 
 
 free holder may be appointed,. 152 
 
 contract for purchase of, may be sold to pay debts 153 
 
 proceedings for sale of contract, 154 
 
 distribution of proceeds of sale of contract, 155 
 
 special guardian may be appointed to sell, 167 
 
 reasons authorizing a sale 167 
 
 power of guardian as to, 169 
 
 guardian to lease, 169 
 
398 EXECUTOR'S AND ADMINISTRATOR'S GUIDE. 
 
 Page. 
 
 Ebal Estate, petition to mortgage, &c., form of, 381 
 
 order to show cause, form of, 384 
 
 for special guardian, form of, ■. . . . 285 
 
 bond on sale of, form of, , 386 
 
 order for sale of, form of, .' 387 
 
 notice of sale of, form of, 389 
 
 report of sale of, form of, 389 
 
 order confirming sale of, form of, 390 
 
 deed of, form of, 391 
 
 notice to widow as to dower, form of, 394 
 
 consent of widow to accept a sum in gross, form of, 394 
 
 petition by creditor for sale of, form of, 304 
 
 order that administrator show cause, form of, 306 
 
 other person show cause, form, of, 307 
 
 for sale on petition by creditor, form of, 808 
 
 that executor file bond, on form of, 811 
 
 appointing freeholder to sell, form of,. 313 
 
 Eecbipt of creditor, form of, 367 
 
 for legacy, form of, 269 
 
 Kefbrbncb of claim rejected, how obtained, 78 
 
 Referee may be appointed on final settlement, 103 
 
 Release of distributive share on advancement good 130 
 
 of decree may be entered by surrogate 137 
 
 filed in county clerk's ofl3.ce, 137 
 
 for discharge of decree, form of, 280 
 
 Removal of executor on complaint, 34 
 
 of guardian, proceedings on, 179 
 
 appeal from, 179 
 
 of guardian to a distance, or he may resign, 181 
 
 petition for, of executor, form of, 217 
 
 RENtmciATiON, executor may file, 7 
 
 of excutors, treated of, 30 
 
 of executor, how effected 31 
 
 deemed to have taken effect, 31 , 
 
 executor may retract, 32 
 
 to be filed before administration granted 43, 43 
 
 may be revoked before issue of letters, 42 
 
 of executor, form of, 200 
 
 petition for citation to compel, form of, 215 
 
 order as to, of executor, form of, 217 
 
 of widow or next of kin, form of, 224 
 
 Rent, when to be included in inventory, 56 
 
 when not to be included, instances 57 
 
INDEX. 399 
 
 Page. 
 
 Rent, may be preferred as a debt, when , 86, 85 
 
 Representation on distribution rule of,. 118, 117 
 
 Report of commissioners, to be made 193 
 
 what to contain, 193 
 
 how to fix boundaries, 193 
 
 may be set aside, 193 
 
 order conflrming, may be appealed from, 195 
 
 of sale, to be made, 139 
 
 Residuakt Legatee, entitled to administration with will an- 
 nexed, 32 
 
 Resignation of guardian, may be for cause, 181 
 
 Revocation of will, how done, 6 
 
 of letters, course when issued 48 
 
 of administration, when will proved, 49 
 
 letters on failure to give new sureties 51, 50 
 
 of letters, when issued on false representation, 51 
 
 when executor or administrator incompetent,. . 61 
 when absent, or non-resident, executor or administrator 
 
 does not account, 53 
 
 after new letters to issue, 53 
 
 acts in good faith before, valid, 53 
 
 letters may be revoked for not filing inventory, 65 
 
 of probate, form of, 333 
 
 petition for, form of, 335 
 
 citation to show cause, form of, 340 
 
 order for, letters issued on false representations, form of,. 341 
 
 for not filing inventory, order for, form of, 354 
 
 form of, 355 
 
 Sailors may make unwritten wills, 3 
 
 Sale of real estate, for payment of debts, 138 
 
 petition for, form of, ; . . 381 
 
 report of, form of, 389 
 
 order confirming sale, form of, 390 
 
 deed on, form of, 391 
 
 Security, guardian to give on receipt of legacy 173 
 
 Services, executor or administrator cannot chaise for, 105 
 
 Signature, proof of, by witnesses, 35 
 
 Sisters, heirs, or next of kifi, 17 
 
 when entitled to administration, 38 
 
 Soldiers, may make unwritten wUls, 4, 3 
 
 see niiTUMpatim wills, 4 
 
400 EXECUTOR'S AND ADMINISTRATOR'S GUIDE. 
 
 Page. 
 
 Special GrAEDiAH, must appear in person, 34, 33 
 
 appointed for minors on final settlement, 103 
 
 for minors on sale of real estate 133 
 
 may be appointed to sell land, 167 
 
 when appointed,.. 167 
 
 consent of, on proof of will, form of, 306 
 
 order for, in real estate matters, form of 385 
 
 Specific bequests, not to be sold until 73 
 
 may be delivered, 90, 89 
 
 not subject to abatement, 91 
 
 Statute oj' limitations. See LvmMatwm statute of, 78 
 
 SuBBcmPTioii of will, to be before witnesses or acknowledged, . 3 
 
 SuBPEONA, may be issued on final settlement, 108 
 
 Suits, by executors or administrators may be brought in all 
 
 courts, 71 
 
 against executor or administrator in all courts except 
 
 Justices , 71 
 
 Summons may issue to executor to qualify 31 
 
 may issue to executor or administrator neglecting to file 
 
 inventory, 64 
 
 to executor to qualify or removal, form of, 316 
 
 to executor or administrator to file inventory, form of, . . . 251 
 
 SuPEBSBDiNG, order, as to executor, form of, 320 
 
 SuKETiBS of executor or administrator, becoming insolvent,. . . 49 
 
 removing from state, . . 49 
 
 insufficient, 49 
 
 of guardian when insuflBcient, complaint made, 179 
 
 proceedings on complaint against 180 
 
 Surplus Moneys, on mortgage sale, to be paid to surrogate,. . 149 
 
 SuBEOGATB, records testimony on nuncupative wills, 5 
 
 may refuse letters to one, ignorant of English, 14 
 
 on application for probate, shall ascertain facts, 16 
 
 SuRVBYOB, may be employed to lay off dower 193 
 
 Taxes, are preferred debts 83 
 
 assessed subsequent to decease of testator, not to be paid, . 83 
 
 widow to pay on dower lands, t 195 
 
 Tbstambntaey PbJvision on lieu of dower, widow may elect, 186 
 
 Testatob, definition, 1 
 
 witnesses need not sign in presence of, 3 
 
 next of kin to, may contest probate within a year, 38 
 
 Tombstones, may be allowed when, , 85, 84 
 
 Tbbspass, executor and administrator, liable for, of testator or 
 
 intestate, 70 
 
INDEX. 401 
 
 Trustee, executor or administrator, acting as, commissions of, 110 
 
 testamentary letters of, may be revolted, 53 
 
 may be compelled to account, 123 
 
 may have final settlement, 133 
 
 commissions of, 133 
 
 when letters revoked may be cited by successor 138 
 
 United States, debts, due to, entitled to preference 83 
 
 Unsound Mind, persons of, may not make will ,1 
 
 Unwkittbn Wills 4 
 
 Vendue, executor or administrator, may sell at,. , 73 
 
 VoucHEBS, to be filed with surrogate, 104 
 
 must be produced on final settlement, 106 
 
 of claims to be filed in real estate proceedings, , 133 
 
 guardian should file, 177 
 
 Widow, name &c., to be given on petition for probate, 16 
 
 entitled to administration with will annexed, 33 
 
 first entitled to administration, 38 
 
 to have articles set apart in inventory, 59, 58 
 
 articles- set apart to, to remain her property, 59 
 
 may have value of articles not set apart on inventory,. . . 60 
 
 may have mourning apparel when, 63 
 
 may have sustenance for forty days, 63 
 
 statutory provisions as to sustenance, 63 
 
 sustenance out of personal property, 63 
 
 may have mourning apparel 85 
 
 legacy to, in lien of dower draws interest, how 113 
 
 rights of in surplus of estate, 115 
 
 where there is none, nor next of kin, surplus goes to state 
 
 treasury 131 
 
 to be served with order to show cause before sale of real 
 
 estate 130 
 
 how non-resident served, 131 
 
 claims in real estate sold, how notified, 146 
 
 entitled to dower, , 184 
 
 what is dower of, 184 
 
 of alien entitled to dower, . , 184 
 
 rule of dower on exchange of lands, 185 
 
 not entitled to dower as against purchase money, 185 
 
 how dower of, cut ofii .' 186 
 
 may electto take dower or legacy, 186 
 
 26 
 
402 EXECUTOR'S AND ADMINISTBATOE'S GUIDE. 
 
 Page. 
 
 Widow, petition for dower, not election, 186 
 
 may claim dower within twenty years, ' . 186 
 
 recovering dower entitled to damages, 187 
 
 may bequeath crops on dower lands, 187 
 
 dower of, admeasured, in what court, 187 
 
 admeasurement of dower, statutes, 188 
 
 may apply by petition, 188 
 
 petition for dower and notice how served 189, 188 
 
 heirs or owners may apply for admeasurement 189 
 
 notice to, how served, 190 
 
 hearing on application for dower, 191 
 
 commissioners appointed to adn^easure dower of, 191 
 
 duty of commissioners, 193 
 
 report of commissioners, fixing dower of, 193 
 
 commissioners to admeasure dower of, may have time ex- 
 tended , 193 
 
 report fixing dower of, may be set aside, 193 
 
 new commissioners may be appointed to admeasure dower 
 
 of, 193 
 
 on report, court may adjudge sum to be paid to, 194 
 
 order fixing income may be modified, 194 
 
 report of, dowertof, fixes location, etc., 195 
 
 may occupy land, 195 
 
 lease land, 195 
 
 must pay taxes, 195 
 
 may bequeath crop, 195 
 
 must pay half of costs of admeasurement, 196 
 
 renunciation of, form of,. 334 
 
 order for citation to, form of,. 383 
 
 notice to elect after sale, 394 
 
 consent of, to accept a sum in gross, form of, 394 
 
 annuity table to compute value of, estate of, 896 
 
 petition of, for dower, form of, 857 
 
 Will, what it is, 1 
 
 males of eighteen years may bequeath personal estate, . . 1 
 
 only persons of full age, may devise real estate, 1 
 
 who may make 1 
 
 females of sixteen years may bequeath personal estate,. . 1 
 
 it is enough that intention is clear, 2 
 
 shall be subscribed 3 
 
 shall be in writing, when, ; . . . . 2 
 
 special forms not required, 2 
 
 to be signed in presence of witnesses, or acknowledged, . . 3 
 
INDEX. 403 
 
 Page. 
 
 Will, how executed, 3, 3 
 
 to be published, how, 4, 3 
 
 omissions of witness to aMx residence not to affect 4 
 
 nuncupative or unwritten, 4 
 
 soldiers may make unwritten, 4 
 
 mariners may make unwritten, 5 
 
 nuncupative, how made 5 
 
 nuncupative, how proved 5 
 
 nuncupative to be recorded 5 
 
 nuncupative letters to issue on, 5 
 
 revoked, by being destroyed, 6 
 
 revoked by execution of another,. 6 
 
 should be opened as soon as practicable, 9 
 
 on presentation for probate, facts to be ascertained 17, 16 
 
 subpoena will issue to compel production, 18 
 
 to be presented to surrogate 18 
 
 course on presentation for proof of, 19 
 
 citation to attend proof, how served 30, 19 
 
 parties of fall age may ha^e immediate proof, 33, 21 
 
 subpoena will issue to witnesses 33 
 
 witnesses to, fees, of, » 32 
 
 witnesses to be examined, 34 
 
 at least two, if living, to be examined, 34 
 
 legatees or devisees may intervene on probate, 24 
 
 course as to aged, sick or infirm witness, 35 
 
 if witnesses dead, proof of hand writing, &c., 35 
 
 when witnesses dead, to be recorded only as a will of per- 
 sonal estate, 35 
 
 proof requisites of execution, &c. 36 
 
 as to publication i . . 36 
 
 as to request to witnesses 36 
 
 as to signature of witnesses, 36 
 
 to be recorded with proofs ' 26 
 
 certificate to be attached to 26 
 
 after proof to be delivered to whom, 37 
 
 and proof may be recorded in other counties, 27 
 
 affecting real estate to be recorded in other 
 
 counties 37 
 
 exemplified copies may Be recorded, 37 
 
 proved out of state, affecting real estate may be recorded, 37 
 
 validity of, may be contested within one year, 28 
 
 proceedings on filing of allegations, 28 
 
 proof will be taken again, 29 
 
404 EXECUTOE'S AND ADMINISTRATOR'S GUIDE. 
 
 Page. 
 
 Will, if surrogate decide it to be invalid to be annulled, 29 
 
 probate of, to be revoked, when, 29 
 
 confirmed, when, 29 
 
 after proof, letters may issue, 30 
 
 letters of administration on issue, when, 33 
 
 administrator with will annexed to observe, 35 
 
 if found and proved after administration, letters revoked, 49 
 
 form of, 197 
 
 attestation clause of, form of, 198 
 
 petition for proof of, form of, : 301 
 
 order for citation on proof of, form of, 203 
 
 citation to attend proof of, form of, 203 
 
 petition for leave to intervene on proof of, form of, 207 
 
 order that party may intervene in proof of, form, ... 208 
 
 deposition on proof of, form of, 209 
 
 order admitting to probate, form of, 211 
 
 allegations to contest probate, form of, 221 
 
 petition for administration with, annexed form of, 228 
 
 order for administration with, annexed form of, 231 
 
 ■Witnesses, how many to will, : . 2 
 
 to will, shaU sign at end, 3 
 
 signing testator's name, must sign as witness, 3 
 
 to will, shall affix residence, 3 
 
 penalty for not doing so 3 
 
 need not sign in presence of testator, 3 
 
 not excused from testifying to execution of will, 4 
 
 attestation clause not necessary, 4 
 
 to wm, subpoena, wUl issue to 32 
 
 fees of, 33 
 
 to be examined,... , 34 
 
 at least two, if living to be examined, 34 
 
 course as to aged, sick or infirm, 35 
 
 proof of handwriting to be taken, when 35 
 
 commission may issue, to take testimony of, 35