(finrnpU ICam i^rlyonl IGtbrara ^PM2544.S66 -"'™""' ""'"^ ''"'iii&iiiiii?iliflSi?i?iffl!!9» '" *« Probate c Cornell University Library The original of tliis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924024687968 THE . PRACTICE IN PROCEEDINGS IN THE PROBATE COURTS; INCLUDING THE PROBATE or WILLS! APPOINTMENT OF ADMINESTKATORS, GUAEDIANS, AND TRUSTEES; ALLOWANCES; SALE OP REAL AND PERSONAL ESTATE; SETTLEMENT OP ACCOUNTS ; DISTRIBUTION OP ESTATES' ; ASSIGNMENT OP DOWER, WITH TABLE SHOWING THE PRESENT TAIUE OP ESTATES IN DOWER; PARTITION OP LANDS, &c. &c. &c. APPENDIX OF PRACTICAL FOEMS, DESIGNED POR THE USB OP EXECUTORS AND OTHERS HAVING BUSINESS IN THE PROBATE COURTS. By WILLIAM L. SMITH. qpCHSELLOE AT LAW. BOSTON: LITTLE, BROWN AND COMPANY. 1863. ^HIHf^ Entered according to Act of Congress in the year 1863, by Little, Bbown and Company, in the Clerk's Office of the District Court of the District of Massachusetts. Biy£B9IDE, cambbidoe: STEBBOTYPED AND FEINTED BT H. O. HOUGHTON, PEEFACE. The design of this work is to present, ii> a concise form, "the law and rules of practice regulating the pro- ceedings in the Probate Courts. The leading cases in which questions of probate law have been considered and determined, have been carefuUy collected and cited. And the instructions as to the formal proceedings have been prepared with the view of prac- tically aiding the correct and safe discharge of the re- sponsible trusts to which they relate. The work is submitted to persons interested in the business of the Probate Courts, in the hope that it will, to some extent at least, sijpply a want that has been a subject of frequent remark. W. L. S. Speingpield, Mass., September, 1863. CONTENTS. CHAPTER I. Page The Peobate Courts — Their Origik and General Jtjris- DIOTION, . . . ; 1 CHAPTER n. Probate of Wills, 15 Section 1. As to the Signing by the Testator, ... 16 " 2.' As to the Attestation by the Witnesses, . . .19 " 3. As to the Competency of the Attesting Witnesses, 21 " 4. Execution of. Codicils, 24 " 5. As to the Testator's Soundness of Mind, . . 25 *' 6. Wills Invalidated by Fraud and Undue Influence, . 35 " 7. Revocation of Wills, 37 " 8. Formal Proceedings 45 " 9. Proof of Wills made in another State, . . 50 « 10. Proof of Lost WiUs, 51 • " 11. AUowfcce of Wills proved in another State, . 52 " 12. Proof of Nuncupative Wills, 54 CHAPTER in. Deposit, Custody, and Proceedings in Case oe Conceal- ment OF Wills, 58 CHAPTER IV. Appointment op Executors, 60 CHAPTER V. Appointment op Administrators, 65 vi CONTENTS. CHAPTER VI. Page Appointment of Guardians, 81 CHAPTER Vn. Appointment of Trustees — Trusts, 90 CHAPTER Vni. Removal and Resignation of Executors and Others, . 97 CHAPTER IX. Inventories and the Collection of the Effects of De- ceased Persons and Wards, 101 CHAPTER X. Allowances to Widows, Minor Children, and Others, . 106 CHAPTER XI. Sale of Personal Estate bt Executors and Others — Investments bt Guardians and Trustees — Com- promise of Claims, Ill CHAPTER Xn. Notice op the Appointment of Executors, &c., and Pay- ment of Debts and Legacies, 115 CHAPTER Xin. Insolvent Estates of Deceased Persons, .... 121 CHAPTER XIV. Sales of Land by Executors, Administrators, and Guar- dians 140 CHAPTER XV. Accounts of Executors, Administrators, Guardians, AND Trustees, 163 CHAPTER XVI. Descent and Distribution — Advancements, . . . 186 CONTENTS. VU CHAPTER XVn. Page Pabtition op Lands in the Probate Cotjkt, . . . 204 CHAPTER XVin. Assignment of Dower and Other Life Estates, . . 214 Table Showing the Present Worth of Estates in Dower, 227 CHAPTER XIX. Probate Bonds 229 CHAPTER XX. Appeals from the Probate Court, 238 CHAPTER XXI. Adoption of Children and Change of Names, . . . 244 CHAPTER XXIL Release of Dower and Homestead Rights by Guar- dians OF Insane Married Women, .... 248 APPENDIX. Forms of Petitions, &c., 251-306 List op Printed Blanks Furnished at thb Probate Offices, 307 Times and Places of Holding Probate Courts, . .311 Provisions of the Act of Congress to Provide Internal Revenue, (1862, ch. 119,) Applicable to Probate Proceedings, 315 THE PROBATE COURTS. CHAPTER I. THE PROBATE COURTS — THEIE ORIGIN AND GENERAL JURIS- DICTION. The colony charter, under which the English settlers of Massaphusetts emigrated and organized, contained no par- ticular provisions for the establishment of courts. It was framed for the regulation of a commercial and land corpo- ration rather than with a view to the establishment of a civil and political government. The colonists were strongly at- tached to the spirit of the English law, and adopted its lead- ing maxims, and its forms and modes of proceeding, so far as they were applicable and necessary to their peculiar con- dition and wants. The English probate jurisdiction, with which they were familiar, was confided to the ecclesiastical courts, whose jurisdiction was exclusive and entirely sep- arate from the temporal courts. But there could be no ecclesiastical courts in the colony. There was no church establishment by means of which they could be organized on the English model, nor was such a system consistent with the religious sentiments and purposes of the people. Some new provision was therefore necessary for the exer- cise in the colony of the important powers given to the ecclesiastical courts in England. And as at that time there was no apparent necessity for the erection of a distinct probate. court, the power of admitting wills to probate and 1 2 PROCEEDINGS IN THE PROBATE COURTS. of granting administration was given to the county courts, which were established under the general authority given by the charter to the governor and assistants to govern the company and their settlements. The county courts had jurisdiction in common law, probate and equity, with an ultimate appeal to the governor and assistants. The earlier records exhibit probate decrees in the same pages with judg- ments in civil actions and sentences in criminal prosecu- tions. This provision, in the existing condition of the colony, was practically sufficient. Orders were passed from time to time, as experience suggested, to promote the convenient and prompt settlement of estates, but the probate jurisdiction remained with the county courts until the dissolution of the colony charter. Under the province charter of William and Mary, granted in 1691, the courts were newly organized. The superior court of judicature, the court of common pleas, courts of general sessions and of justices of the peace, were estab- lished. But the charter which gave to the general court authority to erect courts with civil and criminal jurisdiction, ordained that the governor and council should " do, execute, and perform all that is necessary for the probate of wills and granting administrations for, touching and concerning any interests or estate which any person or persons shall have within our said province or territory." Thus the pro- bate jurisdiction was taken firoTm the common-law courts, and in fact made independent of the legislative power. The provincial legislature passed an act erecting county courts of probate, but it was negatived by the king.^ But under the authority vested in the governor and council by the charter, probate officers were appointed in the several counties, who were in effect surrogates, exercising a dele- gated authority, from whose decrees appeals were taken to the governor and council, who remained the supreme ordi- 1 Parsons, C. J., in Wales v. Willard, 2 Mass. 120. PROBATE OF WILLS. 3 nary or court of probate. This was the beginning of the probate courts as distinct tribunals. The courts, thus constituted, continued to exercise pro- bate jurisdiction until the formal establishment of the county probate courts under the State constitution. Stat- utes were enacted by the provincial legislature recognizing their jurisdiction, extending their powers and duties, and to some extent regulating their proceedings. The constitution of 1780 provided for the regulation of times and places of holding probate courts, and for appeals from the judges of probate to the governor and council until the legislature should, make further provision. This system continued in actual operation until the passage of the act of 1784 by which the probate courts were first formally established. That statute provided for the holding of a court of probate within the several counties of the commonwealth, and for the appointment of judges and registers of probate, and transferred the appellate jurisdiction from the governor and council to the supreme judicial court, which was constituted the supreme court of probate. The sarhe statute authorized the courts of probate to allow wills and grant administra- tions ; to appoint guardians for minors and insane persons; to examine and aUow the accounts of executors, adminis- trators, and guardians, and to act in such other matters and things as they should have cognizance and jurisdiction of by the laws of the commonwealth. The courts thus organized continued to exercise probate jurisdiction until the staHiute of 1858, c. 93, which abolished the office of judge of probate and provided for the appoint- ment in each county of a suitable person to be judge of probate and judge of the court of insolvency, and to be called the judge of probate and insolvency. The same statute provided for the election of registers of probate^ 1 Registers of probate had been previously elected under stat. of 1866, c. 173. The General Statutes provide that a register of probate shall 4 PROCEEDINGS IN THE- PROBATE COURTS. and insolvency, to hold office for the term of five years, and transferred all the jurisdiction and authority then exer- cised by the judges of probate, to the judges of probate and insolvency. The General Statutes of 1860 provided that judges of probate and insolvency should continue to hold their offices according to the tenor of their commissions, and that the judge and register of probate and insolvency in each county should continue to be judge and register of the probate court in such county.^ The peculiar and appropriate jurisdiction of the probate court, embracing the probate of wills and granting admin- istrations, and their incidents, is the same as that of the English ecclesiastical courts. Such was the jurisdiction first exercised by the governor and council and their sur- rogates under the province charter. But the powers of the probate court have been gradually increased by a series of state and provincial statutes, reaching back to the time of their separation from the common-law courts. Jurisdiction has been given to them of matters formerly within the ex- clusive cognizance of the courts of common law, and not analogous to any proceeding of the probate court as a court of ecclesiastical jurisdiction. These various statutes, based upon the suggestions of practical experience, and passed with a view of promoting the prompt and economical dis- position of the matters to which they relate, have resulted in establishing the large jurisdiction now exercised by the probate courts. This jurisdiction is separate and -exclusive. By the sepa- ration of the probate and common law jurisdictions under the provisions of the province charter, the separation be- tween thena became as well settled in this country as in be elected in each county in 1863, and' every fifth year thereafter. Gen. Sts. e. 10, § 4. I Gen. Sts. c. 117, § 1 ; c. 119, § 1. By stat. of 1862, chap. 68, probate lourts are made courts of record. PROBATE OF WILLS. 5 England, and the same distinction has been substantially maintained. The decrees of the probate court, upon sub- jects within its jurisdiction, are conclusive and final, unless appealed from. They cannot be called in question in the common-law courts upon collateral proceedings. A writ of error will not lie to a judgment of the probate court; nor will certiorari lie from the supreme court to the probate court.' None of the processes devised to reexamine the decisions of the common-law courts are applicable to the probate courts. And as the proceedings of the probate courts are not according to the course of the common law and cannot be revised in a common-law court, by a common-law process, its decrees, when the court exceeds its jurisdiction, are ne- cessarily void. Other erroneous and irregular judicial pro- ceedings, which can be revised by a superior common-law court, are voidable only, and are good and valid until re- versed. But the irregular decree of the probate court is a nuUity, and may be set aside in any collateral proceeding by plea and proof. ^ The sure and convenient remedy, however, of any party aggrieved by a decree of the probate court, is by appeal to the supreme court of probate in the manner provided by statute.'' The supreme judicial Court is constituted the supreme court of probate. This appellate jurisdiction is vested in the same court with that from the common-law courts, and that for a very wise reason, that there might not be conflict- ing decisions between two supreme courts administering the same laws ; but in another and distinct capacity as if 1 Peters v. Peters, 8 Cush. 542. 2 Where original administration was granted after twenty years, con- trary to the statute, it was held void in a collateral suit. Wales v. Willard, 2 Mass. 120, and see Hunt v. Hapgood, 4 Mass. 117; Smith w. Rice, 11 Mass. 507; Chase v. Hathaway, 14 Mass. 227. 3 Post, chap. XX. 1* 6 PROCEEDINGS IN THE PROBATE COURTS. it were a distinct court. ^ It has a superintending and re- visory power to reexamine and affirm or reverse all orders and decisions in probate, but as an appellate probate court. GENERAL STATUTE JURISDICTION. The jurisdiction of the probate courts is incidentally con- sidered in the following chapters in connection with the various subjects of which they have cognizance. Their general jurisdiction is thus defined by statute : ^ " The probate court for each county shall have jurisdic- tion of the probate of wills, granting administration of the estates of persons who at the time of their decease were inhabitants of or residents in the county, and of persons who die without the State leaving estate to be adminis- tered within such county ; ^ of the appointment of guardians to minors and others, and of all matters relating to the es- tates of such deceased persons and wards ; and of petitions for the adoption of children and the change of names. When a case is within the jurisdiction of the probate court in two or more counties, the court vs^hich first takes cognizance thereof by the commencement of proceedings, shall retain the same ; and administration or guardianship first granted shall extend to all the estate of the deceased or ward in this State, and exclude the jurisdiction of the probate court of every other county. The jurisdiction assumed in any case by the court, so far 1 Peters v. Peters, 8 Gush. 542. la the opinion in this case the subject of the jurisdiction of the probate courts is examined at length by Shaw, C. J. 2 Gen. Sts. t. 117, § 2. 3 Post, chap. V. — Where letters of administration have been granted in any county on the estate of a, person dying without the commonwealth, parol evidence is admissible to show that the deceased left estate within such county, and so the grant of administration was valid, notwithstanding that no such estate was included in the inventory exhibited to the judge of probate. Harrington v. Brown, 5 Pick. 519. PROBATE OF WILLS. 7 as it depends on the place of residence of a person, shall not be contested in any suit or proceeding, except in an appeal, in the original case, or when the want of jurisdic- tion appears on the same record." ^ MISCELLANEOUS PROVISIONS RELATING TO PROBATE COURTS. [General Statutes, Chap. 117.] Sect. 19. The several judges shall from time to time make rules for regulating the practice and conducting the business in their courts in all cases not expressly provided for by law ; and shall return a statement of their rules and course of proceedings to the supreme judicial court, as soon as conveniently may be after making the same. The su- preme judicial court may alter ajad amend the same, and make other and further rules from time to time for regulat- ing the proceeding in the probate courts as it deems neces- sary, in order to secure regularity and uniformity in the proceedings. Sect. 20. The judge shall make and issue all warrants and processes necessary or proper to carry into effect the powers granted to him; and when no form for a warrant or process is prescribed by statute or the rules of the court, he shall frame one in conformity with the principles of law, and the usual course of proceedings in this State. Sect, 21. All his decrees and orders shall be made in writing, and the register shall record, in books to be kept for the purpose, all decrees and orders, wills proved in the court, with the probate thereof, letters testamentary and of ad- ministration, warrants, returns, reports, accounts, and bonds ; and all other acts and proceedings required to be recorded by the rules of the court or a special order of the judge. Sect. 22. When the validity of a decree is drawn in ques- 1 Cutts V. Haskins, 9 Mass. 543 ; Holyoke v. Harkins, 5 Pick. 20 ; Har- vard Coll. V. Gore, Ibid. 370 ; Emery v. Hildreth, 2 Gray, 228. 8 PROCEEDINGS m THE PEOBATE COURTS. tion in another suit or proceeding, everything necessary to have been done or proved in order to render the decree valid, which might have been' proved by parol evidence at the time of making the decree, and was not required to be re- corded, shall after twenty years from such time be presumed to have been done or proved, unless the contrary appears on the same record. Sect. 23. Orders of notice and other official acts which are passed as matters of course and do not require a previ- ous notice to an adverse party, may be made and done in vacation as well as in court. [Registers of probate may issue orders of notice and citations at any time. Stat. 1863, c. 156.] Sect. 24. Any warrant or commission for the appraise- ment of an estate, for e:5amining the claims on insolvent estates, for the partition of real estate, or for the assignment, dower, or other interests in real estate, may be revoked by the judge for sufficient cause ; and he may thereupon issue a new commission, or proceed otherwise as the circum- stances of the case shall require. Sect. 25. In cases contested either before the probate court or supreme court of probate, costs in the discretion of the court may be awarded to either party, to be paid by the other, or to either or both parties to be paid out of the estate which is the subject of the controversy, as justice and equity shall require.^ Sect. 26. When costs are awarded to be paid by one 1 General rule as to costs. Under the general rule, no costs are allowed in contested cases, in the probate court, or supreme court of probate. When the contest is made upon frivolous pretences, or for reasons which the ap- pellant knew or ought to have known were unfounded, costs are allowed. But when the ease presents questions of law, upon which the parties may not unreasonably differ and upon which either may properly claim the in- structions of the court, no costs are allowed. Osgood v. Breed, 12 Mass. 536. See Nickerson v. Buck, 12 Gush. 332, and Woodbury v. Obear, 7 Gray, 472. PROBATE OF WILLS. 9 party to the other, said courts may issue execution therefor in like manner as is practised in the courts of common law. Sect. 27. When an executor, administrator, guardian, or trustee, who is required to make oath to an account, is unable by reason of sickness or otherwise to attend person- ally in the probate court, the judge may administer the oath to the accountant out of court, or may by his commission authorize a justice of the peace to administer it. And a certificate of the oath with the account and vouchers pro- duced therewith, and the commission, if any, shall be re- turned into the registry of probate and there filed and re- corded. Sect. 28. All other oaths required of executors, admin- istrators, guardians, and trustees, and all oaths required of commissioners of insolvency, appraisers, dividers of estates, and other persons, in relation to any proceeding in the court, may be administered by the judge or register in or out of court, or by a justice of the peace, or by the city' or town clerk where there is no justice of the peace, and a certificate thereof, when administered out of court, shall be returned into the registry of probate and there filed and recorded. Sect. 29. Persons having business in the court may select such newspapers as they may prefer for the publica- tion of legal notices ordered upon their applications ; but if the judge deems the newspaper thus selected insufficient to give due publicity, he may order the publication in one other newspaper. Sect. 30. The register shall make, without charge, one copy of all wills proved, inventories returned, and accounts settled ; of all partitions of real estate and assignments of dower; and of all orders and decrees of the court; and shall deliver the same when demanded to the executor, adminis- trator, guardian, widow, heir, or other party principally in- terested. For additional copies of such documents, and 10 PROCEEDINGS IN THE PROBATE COURTS. copies of other papers, he shall be paid by the person de- manding the same at the rate of twelve cents a page. Sect. 31. Each county shall provide aU books necessary for keeping the records, and all printed blanks and station- ery, used in probate proceedings. Sect. 32. No clerk or other person employed in the office of a probate court shall be commissioner of insolvency or appraiser or divider of an estate, in any case within the jurisdiction of the court, unless his appointment is requested by all parties in interest. JUDGES OF THE PROBATE COURT. [General Statutes, Chap. 119.] Sect. 1. The judges of probate and insolvency shall continue to hold their offices according to the tenor of their commissions ; and as vacancies occur they shall be filled in the manner provided by the constitution, so that there shall be one judge in each county. Sect. 2. Each judge, before entering upon the duties of his office, in addition to the oaths prescribed by the con- stitution, shall take and subscribe an oath that he will faith- fully discharge said duties, and that he will not during his continuance in office, directly or indirectly, be interested in or benefited by the fees or emoluments arising from any suit or matter pending in either of the courts of which he is judge ; which oath shall be filed in the probate office. Sect. 3. The judges may interchange services or per- form each other's duties when they find it necessary or con- . venient. Sect. 4. If a judge is a party, or interested to the amount claimed of one hundred dollars exclusive of inter- est, in any case arising in his county, or is absent or un- able to perform his duties, and no judge acts for him, under the provisions of the preceding section, or if there is a PKOBATE OF WILLS. 11 vacancy in the office in any county, the duties shall be per- formed in the same county by the judge of any other county designated by the register, from time to time, as necessity or convenience may require.^ [No judge of probate and insolvency shall be disqualified from acting in any case by reason of interest, unless such interest is direct, and to the amount of one hundred dollars of principal claimed by or against him, nor until the same appears of record in the case. Stat. 1860, c. 145.] Sect. 5. The register shall certify on his records the times during which, or the cases in which the judge of another county acts. Bonds required to be given to the judge shall be given to the judge appointed for the county, 1 Coffin V. Cottle, 9 Pick. 287. A judge of probate has no jurisdiction over a will containing a devise of more than one hundred dollars in value to a person of vfhose will he has been appointed executor. Bacon, Appellant, 7 Gray, 391. Where the judge was a debtor to the estate, though the debt was wholly- secured by mortgage, it was held that he had no jurisdiction, and that the probate of the will before him was void. Gay v. Minot, 3 Cush. 352. A bequest of money to trustees, to be devoted to the use and benefit of indigent persons in certain towns, does not make a judge of probate who is an inhabitant of one of those towns interested in the probate of the will which contains the bequest. Northampton v. Smith, 11 Met. 390. Where the judge had a valid claim against the estate of a deceased per- son, but had determined in his own mind not to enforce his claim, and exercised jurisdiction over the estate by granting letters of administration, it was held, that he was nevertheless interested as a creditor of the estate, and that the grant of administration waS therefore void for want of juris- diction. Sigourney v. Sibley, 21 Pick. 101 ; and such void administration is not rendered valid by the circumstance that exception was not taken to his jurisdiction. Ibid. The appointment of a special administrator on the estate in which the iudge is interested is void. Sigourney v. Sibley, 22 Pick. 507. The fact that the judge had acted as the agent or attorney of a creditor, heir, or other person interested in an estate, although such action was il- legal, does not make him interested so as to oust him of his jurisdiction. Cottle, Appellant, 5 Pick. 483. 12 PROCEEDINGS IN THE PROBATE COURTS. or, in case of vacancy, to the acting judge, and his succes- sors in office, and all business shall be done in his name, oi the name of the probate court, or the court of insolvency for the same county, as the case may be ; but bonds may be approved, and other acts required to be done or certified by the judge may be approved, done, or certified, by the acting judge. Sect. 6. No judge shall be retained or employed as counsel or attorney, either in or out of court, in any suit or matter which may depend on or in any way relate to a sen- tence, decision, warrant, order, or decree, made or passed by him ; nor for or against an executor, administrator, or guardian, appointed within his jurisdiction, in a suit brought by or against the executor, administrator, or guardian, as such ; nor in a suit relating to the official conduct of such party ; nor for or against a debtor, creditor, or assignee, in a cause or matter arising out of or connected with any pro- ceedings before him; nor in an appeal in such cause or matter. EEGISTEKS OF THE PROBATE COURT. Sect. 7. Every register of probate and insolvency, be- fore entering upon the duties of his office, in addition to the oaths prescribed by the constitution, shall take and sub- scribe an oath that he will faithfully discharge said duties, and that he will not, during his continuance in office, direct- ly or indirectly be interested in or benefited by the fees or emoluments arising from any suit or matter pending in either of the courts of which he is register; which oath shall be filed in the probate office. Sect. 8. He shall give bond, with condition that he will faithfully discharge the duties of his office, to the treasurer of the commonwealth, in a sum not less than one thousand, and not exceeding ten thousand dollars, as ordered by the judge, with one or more sureties approved by him. PROBATE OF WILLS. 13 Sect. 9. No register shall be of counsel or attorney either in or out of court, in any suit or matter pending in either of the courts of which he is register ; nor in an appeal therefrom ; nor shall he be executor, administrator, guar- dian, commissioner, appraiser, divider, or assignee, of or upon an estate within the jurisdiction of either of the courts of which he is register ; nor be interested in the fees or emoluments arising from either of said trusts. Sect. 10. The register shall have the care and custody of all books, documents, and papers appertaining to the courts of which he is register, or deposited with the records of insolvency, or filed in the probate office ; and shall care- fully preserve the same, to be delivered to his successor. He shall perform such other duties appertaining to his office as may be required by law or prescribed by the judge. Sect. 11. The judges for the counties of Suffolk, Mid- dlesex, Worcester, Essex, and Norfolk, may each appoint an assistant register of probate and insolvency for his county, who shall hold his office for three years unless sooner removed by the judge. Before entering upon the discharge of his duties the assistant register shall take the oaths prescribed by the constitution, and shall give bond, with condition for the faithful performance of the duties of his office, to the treasurer of the Commonwealth, in a sura not less than five hundred nor more than five thousand dol- lars, as ordered by the judge, with one or more sureties approved by him. Sect. 12. The assistant register shall perform his duties under the direction of the register, and shall pay over to him all fees and sums received as his assistant, to be accounted for as required by law. He may authenticate papers, and perform such other duties as are not performed by the regis- ter. In case of the absence, neglect, removal, resignation, or death, of the register, the assistant may complete and attest any records remaining unfinished, and act as register 2 14 PROCEEDINGS IN THE PROBATE COURTS. until a new register is qualified, or until the disability is removed. Sect. 13. If a vacancy occurs in the office of register, the governor with the advice and consent of the council, may appoint some person to fill the oflice, until another is elected, as provided in chapter ten. Sect. 14. Upon the death, resignation, removal, or ab- sence, of the register, if there is no assistant register, or if he is also absent, the judge shall appoint a suitable person to act as temporary register until a register is appointed or elected and qualified, or until the disability is removed. Sect. 15. Such temporary register shall be sworn before the judge, and a certificate thereof, with his appointment, shall be recorded with the proceedings of each court in which he acts. CHAPTER II. PROBATE OF WILLS. The probate of a will is necessary to establish its due execution. All questions as to the personal capacity of the testator, the signing of the will by him, and the attestation of the witnesses, must be determined by the probate court, or, on appeal, by the supreme court of probate. Such questions cannot be determined in the courts of common law,^ and the decree of the probate court allowing or dis- allowing a will is conclusive, unless appealed from ; it can- not be examined collaterally in any other court, except on a question of jurisdiction. But, until the wiU is admitted to probate, it is legally inoperative. Neither real nor per- sonal estate will pass by it, for it cannot be used as evidence of title.2 THE FACTS TO BE PROVED IN SUPPORT OF THE WILL. The party seeking the probate of the will must prove affirmatively : That the will was signed by the testator, or by some per- son in his presence and by his express direction. That the will was attested and subscribed in the presence of the testator by three or more competent witnesses ; and That the testator, at the time when the will was executed, was of full age ^ and sound mind. 1 Dublin u. Chadbourne, 16 Mass. 433; Parker v. Parker, 11 Cush. 519. 2 Gen. Sts. c. 92, § 38. Shumway v. Holbrook, 1 Pick. 114. 3 Full age is reached on the day next preceding the anniversary of the person's birth. Thu'l, if he was born on the second day of January, 1840, he became of age on the first day of January, 1861 ; and as fractions of a day are not recognized by law, his full age was reached on the first instant of the latter day. 16 PROCEEDINGS IN THE PROBATE COURTS. All these facts must be proved. Proof of any one or more of them is not sufficient unless all are established. Section I. AS TO THE SIGNING BY THE TESTATOR. The statute provides that no wills shall be effectual to pass or in any way to affect any estate, real or personal, " unless it is in writing and signed by .the testator, or by some person in his presence and by his express direction, and attested and subscribed in his presence by three or more competent witnesses." ^ Questions as to the signing by the testator, and as to the attestation of the witnesses, have been frequently con- sidered and determined by the courts. It is not necessary that the testator's name be signed at the end of the will, though such is the common and advis- able practice. Where a will commenced in the common form, " I, A. B., do make," &c., the whole will being in the testator's handwriting, it was held to be sufficiently signed, though there was no formal signature.^ The signature, whatever may be its local position, must have been made with the intention of authenticating the entire instrument. One signature is sufficient, though the will be ^contained in several pages or sheets, and even when the testimonium clause referred to the preceding sheets as severally signed, and the will was in fact signed at the end only, the signing was held sufficient, it being evidently the testator's inten- tion that his signature should apply to the whole.^ 1 Gen. Sts. c. 92, § 6. To this rule exceptions are made by statute in the fallowing cases : Wills made in conformity with the law existing at the time of their execution ; wills made out of the State which might be proved un- der the laws of the state or country in which they were made ; and the nun- cupative wills of soldiers and mariners. Ibid. §§ 7, 8, 9. 2 Grayson v. Atkinson, 2 Ves. 454; Coles v. Trecothick, 9 Ves. 249; Adams v. Field, 21 Vt. 266. 3 Winsor c. Pratt, 5 Moore, 484. PROBATE OF WILLS. 17 The testator may sign his will by making his " mark " ; ^ and the fact that he was not able to write his name is not required to be proved.^ The testator's name may be written by some other per- son, but it must be done in his presence and by his express direction ; and the fact that the will was signed in that manner should be stated in the attestation clause. Where the testator's signature was made by another person guid- ing his hand, with his consent, and he afterwards acknowl- edged it, the signing was held to be the act of the testator, and sufficient.^ It is not essential that the very act of signing by the tes- tator should be seen by the witnesses. The statute does not require him to sign in their presence. His acknowl- edgment that the name signed to the instrument is his, accompanied with a request that the person to whom the acknowledgment is made should attest it as a witness, is sufficient. The acknowledgment of his signature need not be in express words. His declaration that the instru- ment is his, his name being then signed to the paper, is enough ; any form gf expression implying that the will has been signed by him is sufficient.^ In the case of White v. 1 Nickerson v. Buck, 12 Cush. 332. Under the English statute (1 Viot. c. 26, § 9,) which requires the will to be signed by the testator or by some person in his presence, and by his direction, and the signature to be made or acknowledged by the testator in the presence of witnesses, it was held, that a will signed by a mark, without the testator's name appearing, was sufficiently signed, the will being identified aliunde. In re Bryce, 2 Cur- teis, 325. Where the maiden name of the testatrix was written against her mark instead of her real name, by which she was described in the will, it being a clerical error, the will was admitted to probate. In the Goods of Clarkes, 1 Swa. & Tr. 22. 2 Baker v. Dening, 8 Adol. & EU. 94. 3 Stevens v. Van Cleve, 4 Wash. C. C. 262. 4 Tilden v. Tilden, 13 Gray, 110; Nickerson v. Buck, 12 Cush. 332; Hogan V. Grosvenor, 10 Met. 54; Dewey v. Dewey, 1 Met. 349; Hall v. Hall, 17 Pick. 373. 2* 18 PROCEEDINGS IN THE PROBATE COURTS. The British Museum,' where the will was entirely in the tes- tator's handwriting, the testator merely requested the wit- nesses to attest it ; neither of them saw his signature, and only one of them knew what the instrument was; and the execution was held to be sufficient. Tindal, C. J., said : " When we find the testator knew this instrument to be his will ; that he produced it to the three persons, and asked them to sign the same; that he intended them to sign it as witnesses ; that they subscribed their names in his presence, and returned the same identical instrument to him ; we think the testator did acknowledge in fact, though not in words, to the three witnesses, that the will was his." This acknowledgment need not be made +o all the witnesses at the same time, but is sufficient if made separately to each witness at different times and places.^ No formal publication of the will by the testator is neces- sary. Jn a large majority of cases, the testator declares in the presence of the subscribing witnesses that the instru- ment executed by him is his will, and the fact that such a declaration was made is recited in the attestation clause and proved in the probate court. But such declaration is not necessary. There may exist very excellent reasons why the testator should not wish to disclose, and why the law should not require him to disclose, the fact that he has made a will at all;^ either as Swinburne says, "because the tes- tator is afraid to offend such persons as do gape for greater bequests than either they have deserved, or the testator is willing to bestow upon them ; (lest they, peradventure, un- derstanding thereof Mi-ould not suffer him to live in quiet : ) or else be should overmuch encourage others, to whom he meant to be more beneficial than they expected ; (and so give them occasion to be more negligent husbands or stew- 1 6 Bing. 310; and see Wright v. Wright, 7 Bing. 457. 2 Hogan V. Grosvenor, 10 Met. 54; Dewey v. Dewey, 1 Met. 349. 3 Osborne v. Cook, 11 Cush. 532. PROBATE OF WILLS. 19' ards about their own affairs than otherwise they would have been if they had not expected such a benefit at the testator's hands (or for some other considerations)." ^ It must of course appear that the testator knew at the time he executed the instrument that it was his will. Such knowledge, however, need not ordinarily be proved by direct evidence ; it m^y be inferred from the testator's observance of the formalities of execution required by the statute. It will generally be presumed on proof of the execution that he knew the contents of the instrument. But if the testa- tor was incapable of reading from blindness, physical weak- ness, ignorance, or other cause, it is incumbent on the party offering the will for probate to meet .such facts by evidence that the will w^as read to the testator previous to its execu- tion, or tiiat the contents were otherwise known to him.^ A will may be properly executed without a seal, none being required by statute. Section II. AS TO THE ATTESTATION BY THE WITNESSES. The subscribing witnesses must subscribe the will in the ■ presence of the testator. The object of the rule is to ena- ble him to have ocular evidence of the identity of the in- strument which they attest. The mere corporal presence of the testator is not enough. He must be conscious of their act, and in a position where he can see it. If, therefore, after he has signed the will and before the witnesses have subscribed it, he falls into a state of insensibility, their attes- 1 Swinburne, Pt. 1, § 11. In Trimmer v. Jackson (4 Burn's Eccl. Law, 9tli ed. 102), the witnesses were deceived by the execution, being led to believe that the instrument was a deed, not a will ; and it was adjudged a sufficient execution. 2 Sweet V. Boardman, 1 Mass. 262; Pettes v. Brigham, 10 N. H. 514 2 Greenl. Ev. § 675. See Gerrish v. Nason, 22 Maine, 438. 20 PROCEEDINGS IN THE PROBATE COURTS. tation is not sufficient.^ Nor will it be sufficient if they subscribe in a secret and clandestine manner, although in the same apartment.^ It is not essential that the testator actually see the signing ; it is enough if the situation of the respective parties be such that he may see it, and this is enough, even if the witnesses subscribe in another room. Where the testator lay in bed, and the witnesses went with the will through a short passage into another room, and subscribed their names on a table in the middle of that room, both doors being open, so that the testator might have seen them subscribe if he would, though there was no proof that he did see their act, the attestation was held sufficient.^ A blind man executing his will should be sensible of the presence of the witnesses through his remaining senses.* On the other hand, though the witnesses are in the same room with the testator, it is not enough, if his view of the proceedings is necessarily obstructed. Where the testator was in bed in a room from one part of which he might, by inclining his head into the passage, have seen the witnesses subscribe the wijl, but could not see them in the position in which he- actually was, the attestation was held not to be good.^ The cause of the absence of the witnesses is not material; the effect is the same even if the absence was with the consent or request of the testator.^ An attestation 1 Kight V. Price, I Doug. 241. 2 Longford v. Eyre, 1 P. Wms. 740. 3 Davy V. Smith, 3 Salk. 395. In Casson i,. Dade (1 Bro. C. C. 99), the testatrix, being an invalid, executed the -will when sitting in her car- riage at the door of her attorney's office, the witnesses attending her ; after having seen the execution ttey tooli the will into the office to subscribe their names, and the carriage was put back to the window, through which, it was sworn by a person in the carriage, the testatrix might have seen what passed. Lord Thurlow was of opinion that the will was well exe- cuted. 4 Reynolds v. Reynolds, 1 Speers, S. C. 256. 5 Doe V. Manifold, 1 M. & S. 294 ; Boldry v. Parris, 2 Cush. 433. 6 Broderick v. Broderick, 1 P. Wms. 239. PROBATE OF WILLS. 21 made in the testator's room is presumed to have been made in his presence until the contrary is shown ; if not made in the same room it is presumed not to have been made in his presence until it is shown to have been otherwise.^ And it will be presumed in the absence of evidence to the contrary, that the witnesses subscribed in the most convenient part of the room, and the position of a table, probable to have been used, would be considered.^ It is not necessary to the due execution of the will that the attesting witnesses should subscribe in the presence of each other. A will attested by three witnesses, who separ- ately and at different places subscribe their names, at the request of the testator, is well attested.^ An attesting witness may subscribe by making his " mark," but such manner of subscribing is never advisable and seldom necessary.* No particular form of words is necessary in the attesta- tion clause which the witnesses subscribe, nor need it state the fact that the witr^sses subscribed it in the testator's presence, though the fact that they did so is required to be clearly proved. Section III. AS TO THE COMPETENCY OF THE ATTESTING WITNESSES. The object of the statute in requiring every will to be at- tested and subscribed in the testator's presence by three or more competent witnesses, is to surround the testator, at the time he executes his will, with disinterested persons, who may protect him from frauds that might otherwise be prac- 1 2 Greenl. Ev. § 678. 2 Winchelsea v. Wanchope, 3 Russ. 444. 3 Hogan V. Grosvenor, 10 Met. 54 ; Dewey v. Dewey, 1 Met. 349. 4 Jackson v. Van Deusen, 5 Johns. 144; Doe v. Caperton, 9 Carr. & P. 59. B. a witness, being unable to write, A. another witness, at his re- quest, guided his hand. Held, that B's subscription was suiBcient. In the Goods of Frith, 1 Swa. & Trist. 8. 22 PROCEEDINGS IN THE PROBATE COURTS. tised upon his infirmity or debility, and to ascertain and judge of his sanity.^ If a person, called upon to subscribe as a witness, is satisfied that the testator is not capable of. making a will, he should refuse his attestation. Competent witnesses are persons who are not disquali- fied by reason of interest, crime, or deficiency of under- standing. The statute of 1852,^ which provided that no person should be excluded by reason of crime or interest from giving evidence as a witness, did not apply to attesting witnesses to wills. They are expressly excepted, and their competency must therefore be determined by the rules in force prior to that act. It was formerly held, that an attesting witness who took a beneficial devise or legacy under the will which he at- tested was not a competent witness to prove its execution, but as it was found that to allow a will to be wholly de- feated on account of the existence of such an interest on the part of a witness was productive of inconvenience and injustice, a statute ^ was passed whiph restored the compe- tency of such a witness by destroying his interest. The devise or legacy to the witness was made void, and he was admitted to testify. The same rule is established in this State, by the statute which provides that " all beneficial de- vises, legacies, and gifts, made or given in any will to a subscribing witness thereto, shall be wholly void unless there are three other competent subscribing witnesses to the same." * A mere charge on the lands of the devisor for the pay- ment of debts will not prevent his creditors from being competent witnesses to his will,^ and a member of a cor- poration to which property is given by will, in trust for charitable uses, i.s a competent attesting witness.^ 1 Hawes v. Humphrey, 9 Pick. 350; Chase r. Lincoln, 3 Mass. 237. 2 Gen. Sts. 0. 131, §§ 13, 15. 3 25 Geo. II. c. 6. * Gen. Sts. c. 92, § 10. 5 ibid. 6 Loring v. Park, 7 Gray, 42. PROBATE OF WILLS. 23 A person who has been convicted of an infamous crime is not a competent witness, such a person being considered as having no regard for the obligations of an oath. Cer- tain crimes have been held to be infamous, and certain other offences have been held not to have a disqualifying effect. The precise rule does not clearly appear from the adjudi- cated cases. " It is probably the true test to inquire whether the crime shows in the perpetrator such a de- pravity of character or disposition to pervert the public justice dispensed in the courts, as creates a violent pre- sumption against the truthfulness of his testimony; the difficulty being in the application of this test." ^ It has been adjudged "that persons are rendered infamous, and therefore incompetent to testify, by having been convicted of forgery, perjury, subornation of perjury, suppression of testimony by bribery, conspiracy to procure the absence of a witness, or other conspiracy to accuse one of a crime, barratry,"^ larceny,^ and the receiving of stolen goods know- ing them to have been stolen.* But convictions for adul- tery,^ for " deceit in the quality of provisions, deceits by false weights and measures, conspiracy to defraud by spreading false news," " " the attempt, not amounting to a conspiracy, to procure the absence of a witness," the keep- ing of gaming and bawdy houses, it seems, do not dis- qualify.'' The full pardon of one convicted of an infamous crime restores his competency as a witness ; but the mere remission of his sentence does not.^ The statute provision that the will shall be attested by competent witnesses, refers to their competency at the time they subscribe. If, after the execution of the will, and be- fore it is admitted to probate, either of the witnesses become 1 1 Bishop, Crim. Law, § 645. 2 1 Greenl. Ev. § 373. 3 Commouwealth v. Keith, 8 Met. 531. 'i Commonwealth v. Rogers, 7 Met. 500. 5 Little V. Gibson, 2 Chandler (N. H.), 505. 6 i Greenl. Ev. § 873. 7 1 Bishop, Crim. Law, § 645. 8 Perkins v. Stevens, 24 Pick. 277. 24 PROCEEDINGS IN THE PROBATE COURTS. infamous, insane, or otherwise disqualified, the will may be sustained by proof of the handwriting of those who are thus rendered incompetent to testify. If the witnesses are competent at the time they attest, their subsequent incom- petency,-from whatever cause it arises, will not prevent the probate and allowance of the will, if it is otherwise satis- factorily proved.^ It has been held, that a person under the age of fourteen years is presumed to be incompetent, from defect of understanding, to attest the execution of a will, but this presumption may be rebutted.^ Section IV. EXECUTION OF CODICILS. A codicil is an addition or supplement to a will. By our statutes the term " will " is construed to include codicils.^ The formalities to be observed in the execution of codi- cils are the same as are required by statute in the execution of wills. The codicil must be in writing, signed by the tes- tator or by some person in his presence and by his express direction, and attested and subscribed in his presence by at least three competent witnesses. The attesting witnesses may be the same persons who subscribed the original will, or other competent witnesses. A will may have several codicils, and each must be separately executed. A codicil duly attested may communicate the efficacy of its attestation to an unattested will or previous codicil so as to render effectual any devise contained in such prior unat- tested paper, when the several instruments are written on the same paper. This may be the effect when the codicil does not refer in terms to the unattested instrument ; and even when written on a separate paper if it expressly refers to the original instrument.* i Gen. Sts. c. 92, § 6. s Carlton v. Carlton, 3 Chandler (N. H.), 14. 3 Gen. Sts.c. 3,§ 7,cl. 19. i 1 Jarm. on Wills (4th Am. ed.), 129. PROBATE OF WILLS. 25 The effect of a codicil ratifying, confirming, and repub- lisiiing a will is to give the same force to the will as if it had been written, executed, and published at the date of the codicil.^ A codicil may have the effect of impliedly revoking the later in date of two wills by expressly referring to and rec- ognizing the prior one, as the actual will of the testator.^ A codicil will refer to the latest of several wills if no express date is named.^ A will revoked by implication, as by a change in the testator's circumstances, may be republished by a codicil duly attested.* So a will made by a person not of full age, or of unsound mind, or otherwise incapaci- tated, may be made effectual by a codicil republishing the same and duly executed after the disability is removed. And a will executed by a p'erson under undue influence may be made valid by being confirmed and republished by a codicil subsequently executed, when the testator is free from such influence.^ A codicil, by republishing a will, may give effect to a devise which would otherwise have been void on account of the devisee being a witness to the original will.^ Section V. AS TO THE TESTATOR'S SOUNDNESS OF MIND. The right of disposing of property by will is limited by the statute to persons of sound mind, and the question raised by this restriction is the one presented for deter- mination in a majority of the contested cases. 1 Brimmer v. Sohier, 1 Cush. 118 ; Miles v. Boyden, 3 Pick. 216 ; Haven v. Forster, 14 Pick. 543 ; Pratt v. Rice, 7 Cush. 212. 2 Crosbie v. Macdonald, 4 Ves. 610. 3 Ibid. * See 1 Jarm. on Wills (4tli Am. ed.), 207; notes by PerkinSj-and cases there cited. 5 Ibid. 1 Williams Ex. (5tli Am. ed.) 185. 6 Moores c. White, 6 Johns. Ch. 375. 3 26 PROCEEDINGS IN THE PROBATE COURTS. To establish the testator's mental capacity it must appear that he possessed mind and memory sufficient to enable him to understand the nature and consequences of his tes- tamentary act. Mere ability to answer usual and familiar questions is not enough. The testator must have memory. " A man in whom this faculty is wholly extinguished cannot be said to possess an understanding to any degree whatever, or for any purpose. But his memory, may be very im'perfect ; it may be greatly impaired by age or disease ; he may not be able at all times to recollect the names, the persons, or the families of those with whom he had been intimately ac- quainted ; he may at times ask idle questions, and repeat those which had before been asked and answered, and yet his understanding be sufficiently sound for many of the ordinary transactions of life. He may not have sufficient strength of memory and vigor of intellect to make and digest all the parts of a contract, and yet be competent to direct the disposition of his property by wiU. This is a subject which he may possibly have often thought of; and there is probably no person who has not arranged such a disposition in his mind before he committed it to writing. The question is not so much what was the degree of mem- ory possessed by the testator as this : Had he a disposing memory ? Was he capable of recollecting the property he was about to bequeath, the manner of distributing it, and the objects of his bounty? To sum up the whole in its most simple and intelligible form, were his mind and mem- ory sufficiently sound to enable him to know and under- stand the business in which he was engaged at the time when he executed his will ? " ^ It is not necessary that the testator should be possessed 1 Washington, J., in Stevens v. Vaneleve, 4 Wash. C. C. 262 ; and see Hathorne v. King, 8 Mass. 371 ; Converse v. Converse, 21 Vt. 168 ; Kinne V. Kinne, 9 Conn. 105 ; Stewart v, Lispenard, 26 Wend. 253. PKOBATE OF WILLS. 27 of a mind naturally strong, to enable him to make a valid will. Mere weakness of understanding is not an objection, for courts cannot measure the size of people's understand- ings and capacities. " If a man," says Swinburne, " be of a mean understanding (neither of the wise sort or the foolish), but indifferent, as it were betwixt a wise man and a fool, yea, though he rather incline to the foolish sort, so that for his dull capacity he might worthily be termed grossum caput, a dull pate, or a dunce, s^ch a one is not prohibited from making his testament."^ In a large proportion of the cases in which the sanity of testators is made a question, the alleged want of capacity is in the decay of the faculties resulting from old age, or the effect of disease, or both combined. But neither extreme old age, nor debility of body will affect the capacity to make a will, provided the testator possesses the. ^ound mind necessary to the disposition of his property. The law looks only to the competency of his understanding.® EVIDENCE ON QUESTIONS OF THE TESTATOR'S SANITY. The legal presumption in" the absence of evidence to the contrary is in favor of the testator's sanity.^ It was formerly held that, the testator's sanity having been testified to by 1 Swinburne on Wilb, Pt. 2, § 4. 2 In Van Alst v. Hunter (5 Johns. Ch. 148), the testator was more than ninety years old when he made his will. Chancellor Kent said, " It is one of the painful consequences of extreme old age that it ceases to excite in- terest and is apt to be left solitary and neglected. The control which the law still gives to a man over the disposal of his property is one of the most efficient means which he has in protracted life to command the attentions due to his infirmities." In Keed's Will (2 B. Monr. 79), the testator was eighty years old and physically helpless from palsy, and his will was sus- tained. In Jennings v. Pendergas (10 Md. 346), a will made by a testatrix at the age of ninety-six was sustained. • 3 Baxter v. Abbott, 7 Gray, 71, Thomas, J., dissenting. 28 PROCEEOraGS IN THE PROBATE COURTS. the attesting witnesses, the burden shifted and was upon the party opposing the probate to show that the testator was not of sound mind ; but it is -now settled that, under the statutes of this State, the burden of proving the sanity of the testator is upon him who offers the will for probate, and does not shift upon evidence of his sanity being given by the subscribing witnesses.' The subscribing witnesses are regarded in law as persons placed near the testator at the tipie he executes his will, in order that no fraud may be practised upon him and to judge of his capacity. They are supposed to have satisfied them- selves as to the testator's mental condition, and are therefore permitted to give their opinions upon that point. They may be inquired of as to the grounds of their opinions on cross-examination, and other evidence is admissible to sup- port or contradict them. Any person may testify as to the appearance of the testator, and to facts from which the state of his mind may be inferred, and medical experts may then be inquired of, as to the conclusions they draw from the circumstances and symptoms proved to have existed.^ The mere opinions of witnesses who are not experts have been held inadmissible ; ^ but in Baxter v. Abbott,* it was held that a physician who had practised many years in the testa- tor's neighborhood, and had at times been his medical ad- viser, and who saw and conversed with him a short time before the making of the will, was competent to state his i Crowninshield v. Crowninshield, 2 Gray, 524. 2 Upon the trial of an issue of the testator's sanity, an expert, although he has heard all the evidence, is not to be asked, " Suppose all the facts stated by the witness to be true, was the testator laboring under an insane delusion, or was he of unsound mind ? But the facts upon which his opinion is asked should be put to him hypothetically." Woodbury v. Obear, 7 Gray, 467. 3 Poole V. Richardson, 3 Mass. 330 ; Needham i'. Ide, 5 Pick. 510 ; Com- monwealth V. Fairbanks, 2 Allen, 611. 1 7 Gray, 71. PROBATE OF WILLS. 29 opinion of the testator's sanity, though he was not an expert on the particular subject of insanity. Evidence of insanity both before and after the time of making the will is admissible.^ The fact that the testa- tor committed suicide soon after making his will may be proved, but is not conclusive evidence of insanity, for it is said his power of reasoning on other subjects may have been wholly unimpaired.^ The fact that he was under guardianship as an insane person is primd facie evidence of incapacity, but may be explained by other evidence.^ The testator's declarations so near the time of making the will as to be a part of the res gestce are admissible,* and the fact of his silence when the subject of his incapacity was talked of ill his hearing has been allowed to be proved.^ The fact that the will was written by the testator himself and is sensi- ble in its provisions, is the best evidence of his capacity," but a will is not to be invalidated merely because its provisions are imprudent and unaccountable. General facts upon the subject of insanity, though contained in books of estab- lished reputation, are not admissible.'' The attestation of a will is not evidence that the witness believed the testator to be sane.^ 1 Dickinson v. Barber, 9 Mass. 225. 2 Brooks V. Barrett, 7 Pick. 97. A testator committed suicide on the day next after that on which he made his will, and the will was established. Chambers v. Queen's Proctor, 2 Curteis, 415. 3 Breed v. Pratt, 18 Pick. 115; Stone v. Damon, 12 Mass. 488. * 1 Greenl. Ev. § 108; Eobinson v. Hutchinson, 26 Vt. 38. 5 Irish V. Smith, 8 Serg. & R. 573. 6 Overton v. Overton, 7 B. Monr. 61. See Davis & Calvert, 5 Gill & Johns. 269. 7 Commonwealth v. Wilson, 1 Gray, 337 ; Ware v. Ware, 8 Greenl. 42 ; Collier V. Simpson, 5 Carr. & P. 74. 8 Baxter.!;. Abbott, 7' Gray, 71. On the trial of an appeal from the de- cree of the probate court allowing a will, it cannot be given in evidence against the will that one of the attesting witnesses who testified in the pro- bate court to the testator's sanity, and has since deceased, declared after the 3* 30 PEOCKEDINGS IN THE PROBATE COURTS. Evidence is admissible to show that the testator's family, either on his father's or mother's side, were subject to insan- ity, or that his parents or other near relatives were insane.^ The fact is well established that a predisposition to insanity is frequently transmitted from parent to child through many generations. According to Esquirol, this hereditary taint is the most common of all the causes to which insanity can be referred, and other authorities assert that no other cause can be assigned for the disease in a majority of all the cases. The disease may not appear in a child who goes through life without being exposed to any exciting cause, but with such predisposition, insanity supervenes from very slight causes. Hereditary insanity is induced by the same exciting cause in the offspring as in the parent, and often appears about the same age and under the same form.^ Evidence of merely eccentric habits together with the fact that the will contains directions that appear absurd, will not establish the fact of insanity;^ and it has been probate, that he wished to live to unsay what he had said, and that the tes- tator was insane. Ibid. 1 Baxter v. Abbott, 7 Gray, 81. 2 " As we might suppose, children that are born before insanity manifests itself in the parents, are less subject to the disorder than those which are born afterwards. When one parent only is insane, there is less tendency for the predisposition to be transmitted than when both are affected ; but according to Esquirol, this predisposition is much more readily transmitted through the female, than through the male parent. Its transmission is also more strikingly remarked when it has been observed to exist in several generations of lineal ancestors : and, like other hereditary maladies, it ap- pears to be subject to atavism ; i. e. it may disappear in one generation and reappear- in the next. Further, the children of drunken parents, and of those who have been married late in life, are said to be more subject to in- sanity than those born under other circumstances." Taylor's Med. Jur. 628. And see 1 Beck's Med. Jur. 725 ; Ray's Med. Jur. § 72. . S A will was opposed because it bore intrinsic evidence of the testator's insanity. After making certain bequests, the testator directed his executors to cause some part of his bowels to be converted into fiddle strings, that PROBATE OF WILLS. 31 held that the life, opinions, and habits of a testator may be reviewed for the purpose of testing the allegations of in- sanity.^ " Monomania is very liable to be confounded with eccentricity ; but there is this diflference between them : in monomania, there is obviously a change of character, — the individual is different to what he was ; in eccentricity, such a difference is not marked ; he is, and always has been, sin- gular in his ideas and actions. An eccentric man may be convinced that what he is doing is absurd, and contrary to the general rules of society, but he professes to set these at defiance. A true monomaniac cannot be convinced of his error, and he thinks, that his acts are consistent with reason and the general conduct of mankind. In eccentricity, there other parts should be sublimed into smelling salts, and that the remainder of his body should be Titrified into lenses for optical purposes. He afterwards said, " the ■world may think this to be done in a spirit of singularity or whim." He had expressed a wish to have his body converted to purposes useful to mankind, and had consulted a physician in regard to chemical ex- periments to be made upon it. It appeared that he conducted his affairs with shrewdness and ability, and that he was treated by those with whom he dealt as a fierson of undisputable capacity. Sir Herbert Jenner, in giving judgment, held that insanity was not proved, that the facts merely amounted to eccentricity, and on this ground he pronounced for the validity of the will. 1 J. W. 6. made his will in England a few weeks before his death, in which he gave several legacies, and directed the remainder to be paid over to the Turkish ambassador for Jhe poor of Constantinople, and also for the erection of a cenotaph in that city, inscribed with his name and bearing a light perpetually burning therein. It appeared that he had lived long in the East, had studied the Koran a great deal, and was an avowed believer in Mahommedanism. The prerogative court, on the ground of this extraordinary bequest, which sounded to folly, and on parol evidence of the testator's wild and extravagant language, pronounced him of unsound mind ; but it was held, reversing that decision, that as the insanity attributed to the deceased was not monomania but general mental derangement, and as the proper mode of testing the allegation was to review the life, habits, and opinions of the testator, on such a review there was nothing absurd or irra- tional in the bequest, or anything in his conduct, at the date of the will, in- dicating derangement ; and therefore the will was admitted to probate. 29 Eng. Law & Eq. 38. 32 PROCEEDINGS IN THE PROBATE COURTS. is a will to do or not to do ; in real monomania, the control- ling power of the will is lost. Eccentric habits suddenly ac- quired are, however, presumptive of insanity." ^ When the alleged want of capacity is in the weakness and prostration of physical disease, an inquiry into the char- acter of the testator's malady will sometimes aid in deter- mining the question of his soundness of mind. It is well established that different diseases, though equally fatal, ex- ercise very unlike influences upon the mental faculties. " Among the diseases which incapacitate an individual from making a valid will, or at least render his ration- ality doubtful, may be enumerated the following : lethargic and comatose affections. These suspend the action of the intellectual faculties ; so also does an attack of apoplexy ; and even if patients recover from its first effects, an imbecil- ity of mind is often left which unfits an individual from the duty in question. •• Phrenitis, delirium tremens, and those inflammations which are accompanied, with delirium, also impair tlie mind. Finally, in typhoid fevers, the low state which usually precedes death, is one that "may be considered as incapacitating the individual. On the other hand, there are many fatal diseases, in which the patient preserves his mind to the last, and all dispositions of prop- erty made by him are of course valid. Of these, none is more striking than the clearness of intellect which some- times attends the last stages of phthisis pulmonalis." ^ Long-continued habits of intemperance may gradually impair the memory and other faculties, and produce a species of insanity, which will render the person incapable of making a will. A person, however, who is habitually addicted to the use of intoxicating liquors, and at times violently excited, may make a valid will when he is free from the excitement of liquor. It has been held that if the testator's habits of intoxication are not such as to render 1 Taylor's Med. Jur. 626. 2 Beck's Med. Jur. 821. PROBATE OF WILLS. 33 him habitually incompetent for the transaction of business, it is necessary for the party objecting to his capacity on the ground of casual intoxication to prove its existence at the , time the will was executed.^ The question in these, as in all cases where unsoundness of mind is alleged, is whether the testator knew and understood the business in which he jwas engaged at the time he executed his will. The testator's declarations to the effect that he was in- duced to sign his will when he was under the influence of intoxicating liquors, are not admissible evidence of the fact that he was so incapacitated.^ Lucid Intervals. The party supporting the will may show that the testator, although insane at some period of his life, had recovered his reason, or that the will was made during a temporary cessation of the insanity. Lunatics occasionally recover for a time and are conscious of their acts. The lucid interval may be a few hours or minutes in duration, or it may continue for weeks, months, and even years. Evidence of a lucid interval is to be exaq^ined with great caution, especially in cases where the alleged .inter- val was of brief duration. A mere diminution in the vio- lence of the disorder does not constitute a lucid interval. It need not, of course, appear that the predisposition to the disease had been extirpated, or that the testator had regained the same degree of intellectual ability that he possessed previous to his insanity ; but it must appear that he was conscious of his acts, and able to understand their nature and consequences.^ The fact that the will is a rational one and made in a rational manner, though not conclusive, is strong evidence that it was made in a lucid interval* 1 Andrees v. Weller, 2 Green, Ch. 604. 2 Gibson v. Gibson, 3 Jones (Missouri), 227. 3 Gombault v. Pub. Admr., 4 Bradf. (N. Y.) 226 ; Bannatyne v. Ban- natyne, 14 Eng. Law and Eq. 581 ; 1 Jarm. on Wills (4th Am. ed.), 67. 4 Nicholes v. Binns, 1 Swa. & Tr. 239. 34 PROCEEDINGS IN THE PROBATE COURTS. In establishing the fact of a lucid interval, evidence has been admitted to show that the disposition of the testator's property made by his will was consistent with his intentions declared previous to his insanity.^ The rule that insanity proved . to have existed at a par- ticular time is presumed to continue, does not apply to tem- porary delirium connected with a violent disease. ^ Partial Insamity — Monomania. The objection has been raised in some cases, that the testator, though of apparently sound mind upon general subjects, labored under an insane delusion in regard to particular matters, and that such de- lusions, operating upon his mind at the time he made his will, deprived him of his disposing capacity. Such de- lusions are said to b? more commonly manifested in the testator's unaccountable antipathy to his children and near relatives, and unfounded suspicions of attempts by them on his life. But to defeat a will by evidence of an insane delu- sion merely, it has been held that the will must be traced to, and shown to be the offspring of, such insane delusion.^ The declarations of the testator proceeding from partial in- 1 Couglilen's case, referred to in Booth v. Blundell, 19 Ves. 508. 2 Hix u. Whittemore, 4 Met. 545. 3 In Greenwood's case, the testator being sick and delirious took some medicine from the hands of his brother and imagined it was poison intended to kill him. He recovered and returned to his profession, — that of a barrister, but was never afterwards free from the morbid delusion. He disinherited his brother, who was his only next of kin. Two trials were had on the question of sustaining the will with conflicting verdicts, and the result was a compromise. Stated by Lord Eldon in White and Wilson, 13 Ves. 89. A testator who, twenty-four years before his death, had a dangerous fever, during which he contracted a strong antipathy towards his brothers, which continued through* his life, made his will shortly before his death, and disinherited them.' There was no apparent cause for his antipa- thy. The will was set aside on the ground that his peculiar defect of in- tellect influenced his disposition of his estate. Johnson v. Moore's Heirs, 1 Little (Ky.), 371, and see Dew v. Clark, 3 Addams, 79; Thompson v. Thompson, 21 Barb. (N. Y.) 107. PROBATE OF WILLS. 35 sanity, are not admissible as evidence of the truth of his statements, but may properly be considered in connection with other facts in determining the general question as to his soundness of mind.i Section VI. WILLS INVALIDATED BY FKAUD AND UNDUE INFLUENCE. The testator, in order to, make a valid will, must enjoy full liberty in the disposition of his estate. A will ob- tained by fraud is of course void,^ and the effect is the same where the testator is constrained by fear, or where undue influence is used to control the disposition of his estate. An instrument executed under such circumstances is not the will of the testator, but is the dictation of another person. Any condition of things that restrains the testator from the free exercise of his own judgment, incapacitates him as a testator. Objections of this class more frequently arise in cases where the testator was either of weak mind naturally, or was enfeebled by age or disease, and therefore liable to be con- trolled by influences which would not affect a person of strong mind and good health. A person may be of sound mind and competent, if left to himself, to make a valid will, but he may be induced by the harassing importunities of those about him, and by the hope of quiet, to dispose of his property in a manner that his own healthy and unbiased judgment would not approve. A will made under such circumstances is regarded as a result of coercion, and can- not be sustained. The degree of undue influence which will invalidate a will must vary with the circumstances of each case. The 1 Woodbury v. Obear, 7 Gray, 467. 2 1 Jarm. on Wills (4th Am. ed.), 41 ; 1 Williams (5th Am. ed.), 40.; Davis V. Calvert, 5 Gill & Johns. 269 ; Dietrick v. Dietrick, 5 Serg. & E. 207. 36 PROCEEDINGS IN THE PROBATE COURTS. importunity or threatening successfully employed to coerce one person will have no effect on another. The mental and physical condition of the testator, his natural strength or feebleness of mind, the power and disposition of the person who seeks to control the testator, and the character of the influences brought to bear upon him, are to be considered. Honest suggestions and moderate persuasion do not amount to undue influence. To invalidate the will it must appear that the ill-treatment, threats, violence, or persistent impor- tunity was such as to destroy the free agency of the testa- tor.^ In these cases, as in all others, the party offering the will for probate must prove the sanity of the testator, but if that fact is established, the burden of proving undue influ- ence is upon the party alleging it. It has been held, that the harmony of the will with the testator's disposition and affections, and his declarations in regard to it when in health, are facts to be considered in determining the question of undue influence.^ If it appears that the will was written or procured to be written by a person largely benefited by its provisions, the circumstance 1 Jarm. on Wills (4tli Am. ed.), 37 ; 1 Williams Ex. (5tli Am. ed.) 40. Any one has a right by fair argument or persuasion, or by virtuous influ- ence, to induce another to make a will in his favor. Miller v. Miller, 5 Serg. & R. 267. "Neither advice, nor argument, nor persuasion would vitiate a will made freely and from conviction, though such will might not have been made but for such advice or persuasion." Clayton, C. J., in Chandler v. Ferris, 1 Harr. 454. 2 Evidence having been introduced that the will was procured to be made by the undue influence of the residuary legatee, it was held that evi- dence was admissible, on the other side, that a large part of the property of the testatris; was inherited by her from her minor son, who died many years previous, and who was greatly attached to the residuary legatee, and had frequently expressed his intention, if he should attain the age of twen- ty-one years, to leave the bulk of his property to him, and that such inten- tion was known to the testatrix. Glover v. Hayden, 4 Cush. 580. See Allen V. Pub. Admr. 1 Bradf. (N. Y.) 378; Waterman v. Whitney, 1 Kernan, 157. PROBATE OF WILLS. 37 under which it was made will be more strictly inquired into.^ Evidence that the testator was of feeble mind, and believed in ghosts and supernatural influences, has some tendency to'show that weakness of mind which would be easily imposed upon by the exertion of undue influence.^ Subsequent declarations of the testator, to the effect that he had been forced to sign his will, are not competent evidence of the fact that force was used.^ Section VII. REVOCATION OF WILLS. A will, executed in accordance with the requirements of the statute, is presumed to have existed until the death of the testator ; but this presumption may be rebutted by proof of its revocation. The testator may revoke his will at his pleasure. The manner of revocation is pointed out by statute : — " No will shall be revoked, unless by burning, tearing, cancelling, or obliterating the same, with the intention of revoking it, by the testator himself, or by some person in his presence and by his direction ; or by some other will, codi- cil, or writing, signed, attested, and subscribed, in the man- 1 Clark v. Fisher, 1 Paige, 171; Darley v. Darley, 3 Bradf. (N. Y.) 481 ; Brydges v. King, 1 Hagg. 250 ; Dodge v. March, 1 Hagg. 612. 2 Woodbury u. Obear, 7 Gray, 467. Evidence having been given that a devisee who was accused with having made use of undue influence, had represented to the testator that the wife of one of his sons was an extrava- gant woman, who would waste anything that might be given to her husband, the opposers of the will were allowed to prove that her general behavior and character were good. Diefrick v. Dietrick, 5 Serg. & K. 207; and see Nussear v. Arnold, 13 Serg. & R. 323. When a subscribing witness, who is accused of having been an accomplice in a fraud upon the testator, is dead, evidence may be given of his general good character. Provis v. Reed, 5 Bing. 435 ; but not if he is living. Doe V. Harris, 7 Carr & P. 330. 3 Ibid. ; Jackson w. Kniffen, 2 Johns. 31 ; Smith v. Fenner, 1 Gall. (R. I.) 174 ; Moritz v. Brough, 16 Serg. & R. 405. 4 38 PROCEEDINGS IN THE PROBATE COURTS. ner provided for making a will ; but nothing contained in this section shall prevent the revocation implied by law from subsequent changes in the condition or circumstances of the testator." ^ The revocation of a will, therefore, may be either express or implied. It is expressly revoked by some act of destruc- tion done upon it with the intention of revoking it; or by a new will or codicil intended as a substitute for it, or other writing, formally executed with the express intention of revocation. EXPRESS REVOCATIONS. The mere physical act of burning, tearing, cancelling, or obliterating a will, is not of itself sufHcient to constitute a revocation. The act must be done with the intention of re- voking. If the testator inadvertently obliterates his will, it will remain in force, notwithstanding such obliteration.^ So, if he destroys it during a fit of insanity, or if it is destroyed by his consent, given after he has become nan compos;^ or if it is destroyed by another person without his knowledge, it is not revoked.* 1 Gen. Sts. c. 92, § 11. 2 A will was burnt by the testator on tie supposition that he had substi- tuted another for it, but which was not duly executed. Probate of a copy of the first will granted. Scott v. Scott, 1 Swa. & Trist, 258. 3 Idley V. Bowen, 11 Wend. 227; Ford v. Ford, 7 Humph. 92; Scrubly V. Fordham, 1 Add. 74. The testator, to revoke a will, must be at the same time competent to make a will, or the act of revocation will be a nul- lity. Smith V. Wait, 4 Barb. Sup. Ct. (N. Y.) 28. In re Downer, 26 Eng. Law & Eq. 600. The burden of proving that the will was muti- lated by the testator when of sound mind"; is upon the party alleging the revocation. Harris «. Berrall, 1 Swa. & Trist, 153. 4 Onions v. Tyrer, 1 P. Wms. 345 ; Bennett v. Shorrod, 3 Ired. 303 ; Middleton v. Middleton, 19 Eng. Law & Eq. 340. The fact that a tes- tator,^ who discovers such loss of his will neglects to make another, has been held to furnish a presumption of his intention to revoke. Steele v. Price, 5 B. Monr. 68. PROBATE OF WILLS. 39 Burning, tearing, &c., jn a slight degree, with a declared intent to revoke, is a sufficient revocation. Where the tes- tator gave his will " a rip " with his hands, " so as almost to tear a bit off," and then threw it on the fire, it was held to be a revocation, though the will fell from the fire and was preserved, slightly singed, by another person, without the testator's knowledge.^ If the seal be torn from his will by the testator under the mistaken impression that it is an essential part of the execution of the instrument, the intention to revoke being clear, it would be a sufficient revocation.^ A mere declaration of an intention to revoke a will, not accompanied nor followed by any act in fulfilment of that intention, is of course insufficient.^ And there may be a change of purpose that will prevent a revocation, even when the act of destruction is partly accomplished. A testator, under the impulse of passion against his devisee, tore his wiU tAvice through, when his arms were seized by a bystander, and he became pacified by the concessions of the devisee ; he then fitted the pieces of the torn will to- gether and remarked, " it's a good job it is no worse." This was held to be no revocation.* The declarations of the tes- tator, accompanying the act of revocation, are admissible in evidence to explain his intentions.^ > Bibb V. Thomas, 2 W. Bl. 1043 ; Doe v. Harris, 6 Ad. & El. 209. * Avery u. Pixley, 4 Mass. 460. A testator, being ill in bed, called for his will, and one of the legatees named in the will deceived him by hand- ing him an old letter in its stead. Held that if, from the rest of the testi- mony the jury believed that the testator destroyed that letter, thinking it to be his will, such circumstances would amount to a revocation. Pryor v. Coggin, 17 Geo. 444. 3 The mere direction to another by the testator to destroy his will, is not sufficient, unless some act of destruction is thereupon done. Giles v. Giles, 1 Cam. & Nor. 174; Ford v. Ford, 7 Humph. 92. 4 Doe V. Perks, 5 B. & Aid. 489 ; Elms v. Elms, 1 Swa. & Trist, 165. 5 1 Greenl. Ev. § 273 ; Dan v. Brown, 4 Cowen, 490. As to partial rev- ocations by obliteration, see 1 Jarm. on Wills, 158, and cases there cited. 40 PROCEEDINGS IST THE PROBATE COURTS. It is to be observed that the statute requires the burning, tearing, cancelling, or obliterating to be by the testator him- self, or by some person in his presence and by his direction. If, therefore, the testator requests a person who has the cus- tody of his will to destroy it, and it is accordingly destroyed, such destruction, if not effected in the testator's presence, would not be a compliance with the terms of the statute. If the will is found obliterated in the testator's possession, the presumption is that it was obliterated by him, and the burden of proving the contrary is on the party offering it for probate; but if it has been in the possession of one adversely interested the presumption does not arise.^ If the will is proved to have been in the testator's possession and cannot be found, it will be presumed that he destroyed it with the intention of revoking it,^ but if it is traced out of his custody, the party asserting the revocation must show that it came again into such custody. If the testator executes his will in duplicate, retaining one part and committing the other to the custody of another person, and then destroys one part, the inference generally is that he intended to revoke the will, but the strength of the presumption depends much on the circumstances. Thus, if he destroys the only copy in his possession, his intent to revoke is very strongly to be presumed ; if he was possessed of both copies and destroys but one, it is weaker; and if he alters one and then destroys it, retain- ing the other entire, the presumption has been said still to hold, but weaker still; but the contrary also has been asserted.^ Cases have occurred where a will has been revoked and a codicil left entire, and the question has thereby been 1 Baptist Church v. Roberts, 2 Barr. 10 ; Bennett v. Sherrod, 3 Ired. 303 ; Jones & Murphy, 8 Watts & Serg. 275. 2 Davis V. Sigourney, 8 Met. 488. 3 2 Greenl. Ev. § 682. PROBATE OF WILLS. 41 raised as to whether the revocation of the will has a revok- ing effect upon the codicil also. If, from its contents, the codicil appears inseparably connected with the will, it will be held to be revoked ; otherwise, if it is independent of and unconnected with the will.^ A will is also expressly revoked by a new will or codicil, inconsistent in its provisions with the original will, or plainly intended as a substitute for it,^ or by a writing which expressly declares an intention to revoke. A subsequent will which makes a new disposition of the whole estate is a revocation of the first, without any words of revocation ; but if the subsequent will contains' no clause of revocation and makes no disposition of the estate inconsistent with the former will, it does not operate as a revocation, but both instruments remain in force.^ Where it appeared that the testator made a second will, the contents of which were unknown, it was held not to be a revocation of the first, because it did not appear either that it contained a revoca- tory clause or made a different disposition of the estate. And where it was found that the testator made a second will different from the first, but it was not found in what the difference consisted, it was held to be no revocation.* The burden is on the party offering the second wiU to show that it expressly revokes the former will or has different contents ; 1 2 Greenl. Ev. § 682. 1 Jarm. on Wills (4th Am. ed.), 169. 2 When the intention of the testator to revoke his will appears clearly from a subsequent ■will, it is a sufficient re%'Ocation, although such subse- quent will is inoperative on account of the incapacity of the devisee to take under it. Laughton v. Atkins, 1 Pick. 545. 3 Brant v. Wilson, 8 Cowen, 56 ; Nelson v. McGiffert, 3 Barb. Ch. 158. * 6 Cruise's Digest (Greenleaf), tit. 38, c. 6, §§ 11, 14, and cases there cited. This rule is applied, even if it is found that the second will was stolen from the testator or destroyed by fraud. Ibid. note. But when the second will is missing parol evidence of its contents may be offered. 2 Greenl. Ev. § 688. But such evidence must be strong and conclusive. Gutto v. Gilbert, 29 Eng. Law & Eq. 64. 4 » 42 PROCEEDINGS IN THE PROBATE COURTS. the mere words " this is the last will of me," &c., are not sufficient for that purpose.^ If the subsequent instrument, whether it be a will or codicil, disposes of a part of the estate only, although it professes an intent to dispose of the whole, it is only a revocation pro tcmto, unless it contains words expressing the intention to revoke.^ A revocatory writing, intended for the express purpose of revoking a will, must be signed by the testator, or by some person in his presence and by his express direction, and attested and subscribed in his presence by three or more competent witnesses. The manner of execution is the same prescribed by statute for the execution of wills. If such writing is made in another State or country, it may be executed in the manner prescribed for the execution of wills in such other State or country.^ If the writing declares merely an intention to do some future act of revocation, it will not amount to a revocation ; it must be a present actual revocation.^ IMPLIED EEVOCATIONS. Another class of revocations are those implied by law from changes occurring in the condition and circumstances of the testator subsequent to the execution of his will. Such revocations are founded on the reasonable presump- tion that his will would have been differently made under such diiferent circumstances. The marriage of a man will not revoke his will ; nor will his will made after marriage 1 Cutto V. Gilbert, 29 Eng. Law & Eq. 64. 3 Brant v. Wilson, 8 Cowen, 58 ; Harwood v. Goodright, Cowp. 87. 3 Bayley v. Bailey, 5 Gush. 245. 4 Brown V. Thorndike, 15 Pick. 388. Where the revocations proceed from mistake, or from a false impression originating from deceit practised on the testator, it will be void ; but where the testator merely expresses a doubt as to a fact, and upon that doubt revokes, the revocation would seem to be good. 6 Cruise's Digest (Greenl. ed.), tit. 38, c. 6, § 26. PROBATE OF WILLS. 43 be revoked by the birth of a child ; but the rule is estab- lished that the concurrence of marriage and the birth of a child, after the execution of the will, works an entire revocation ; ^ and the rule applies to posthunnous children.^ It has been decided that parol evidence of the intention of the testator, that his will should stand unrevoked, is inad- missible to control the presumption resulting from marriage and the birth of children.^ The rule does not apply to cases where it appears that the changes in the testator's circum- stances and obligations werp anticipated and provided for by the will, as when the will makes provision for the future wife and issue,* but provision for the wife only has been held insufficient/ The marriage of a feme sole has been held to be an absolute revocation of her will, even though her testamentary capacity was subsequently restored by the event of her surviving her husband;^ but on this point doubts have been expressed, it being questioned whether her marriage worked a revocation or merely a suspension. An alteration in the estate of lands devised by the act of the devisor may operate as an implied revocation of his will. A conveyance of the estate devised is a revocation of the devise; under such circumstances there is nothing left upon which the devise can operate. But the convey- ance, to effect an entire revocation, must be of the whole estate devised. If it is of but part of the estate it is a 1 Warner v. Beach, 4 Gray, 163 ; Brush v. Wilkins, 4 Johns. Ch. 506 ; Vandenburg v. Vandenburg, 1 Denio, v. 27. 2 Doe !/. Lancashire, 5 T. E. 49. It is the same if the testator died without knowledge of the fact that his wife was pregnant. Christopher v. Christopher, 4 Burrow, 2182 ; or if the child died in the testator's Hfetime. Wright V. Netherwood, 2 Salk. 593. 3 Marston v. Roe, 8 Add. & EI. 14 ; Doe v. Lancashire, supra. * Kennebel v. Scrafton, 2 East, 530. 5 Marston v. Roe, supra. 6 1 Jarm. on Wills (4th Am. ed.), 150; 1 Wms. Ex. (5th Am. ed.) 164. 44 PROCEEDINGS IN THE PROBATE COURTS. revocation only to the extent of the conveyance.^ The partition of an estate between tenants in common does not operate as a revocation of a prior devise made by one of the tenants of his share. Entire revocations by implication of law are limited to a very sm.all number of cases. The statute does not intimate what changes in the condition and circumstances of the testator are intended to work a revocation, but leaves them to be decided by the general rules of law ; and the reported cases furnish but little information as to the effect of changes in the testator's condition except as regards mar- riage and the birth of children, and alteration in the estate devised. It has been held that revocation cannot be implied from the long-continued insanity of the testator from soon after the making of his will until his death ; ^ nor from the large increase in value of his property subsequent to the making of his will, although such increase altogether changes the proportion between the specific legacies and the shares of the residuary legatees.^ The effect of a pwrtial revocation by obliteration, or by an alteration of the estate devised, is not a material ques- tion in proceedings in the probate court. The probate of a wUl settles all questions as to the formalities of its execu- tion and the capacity of the testator, but does not affect the validity or invalidity of any particular clause, or settle any 1 Hawes v. Humphrey, 9 Pick. 350; Ballard «. Carter, 5 Pick. 112. For tlie rules as to revocation by alteration of estate see 6 Cruise's Di- gest (Greenleaf's ed.), tit. 38, c. 6, § 58 and seq. 2 Warner v. Beach, 4 Gray, 162. 3 Ibid. " Though the testament be made in time of sickness and peril of death, when the testator doth not hope for life, and afterwards he re- cover his health, yet is not the testament revoked by such recovery, or albeit the testator make his testament by reason of some great journey, yet it is not revoked by his return." Swinburne, Pt. 7, § 15. For a general review of the decided cases upon the subject of implied revocations, see 1 Saunders (Williams), 278, note. PROBATE OF WILLS. 45 question of construction. A revocation therefore, which does not wholly defeat the will prevents no question for the probate court to determine, and is no bar to its admis- sion to probate.^' All questions as to the construction of the will must be settled by subsequent proceedings in the common-law courts. Section VIII. PROBATE OF WILLS — FORMAL PROCEEDINGS. The will to be proved should be filed in the probate office of the county of which the deceased was an inhabitant, or in which he was resident at the time of his death.^ With the will there must be filed a petition,^ signed by the execu- tor or other person who offers the will for probate, and ad- dressed to the judge of the probate court, setting forth the place where the testator last dwelt, the date of his death, the fact that he left a will, and praying that the will be allowed. The full name of the widow of the deceased, if any, and the names, residences, and relatipnship of his 1 Hawes v. Humphrey, 9 Pick. 350. 2 A person non compos, born in the county of Suffolk, removed, upon the death of her father, into the county of Middlesex, where she lived as part of her brother's family many years and until her death, being for the last years of her life under a guardian who provided for her support, whose residence was in Suffolk. Held that her domicile at the time of her death was in Middlesex, and that letters of administration on her estate granted by the judge of probate in Suffolk, were void for want of jurisdic- tion. Holyoke v. Haskins, 5 Pick. 20. Where a citizen, having lived many years at W. in the county of M., purchased and furnished a house at B. in the county of S., and afterwards with his family spent his summers at his house in W., where he continued to pay his taxes, and his winters in B., where he died, it was held that pro- bate of his will might be taken in the county of M. Whether probate in the county of S. would not have been valid likewise, qucere. Harvard College V. Gore, 5 Pick. 370. 3 See Appendix, forpis No. 1 — 3. 46 PROCEEDINGS IN THE PROBATE COURTS. heirs at law and next of kin should also be stated in . th petition. If the next of kin are minors, the fact should b stated, and if they are under guardianship, the name an residence of the guardian should be given. If the executor named in the will declines the trust, hi renunciation in writing should be filed with the wiU.^ NOTICE TO PERSONS INTERESTED. Upon such petition, a citation is issued by the register o probate to the heirs at law of the deceased, and aU person interested in his estate, to appear at a day named and shov cause, if any they have, why the wiU should not be allowec The statute provides no form of serving the citation, no does it provide in terms that any notice shall be given The usual practice is to order notice to be given by pub lishing an attested copy of the citation in some newspape printed in the county. The person presenting the will ma; designate the paper in which the citation shall be published but if the judge deems the paper so designated insufiicien to give due publicity, he may order the publication in oni other newspaper.^ The will is not required to be filed oi a day when the probate court is held, but it may be file( and the citation issued on any day. The party oiFerini the will for probate must serve the citation in accordant with its terms, and must make his return of the fact oJ service under oath, on or before the day fixed for the hear ing. Formal notice is dispensed with when the heirs at lav and all persons interested in the estate of the deceased ac knowledge or waive notice of the pendency of the petition and the judge is satisfied that no person interested intend to object to the probate of the will. Such acknowledgmen 1 See Appendix, form No. 4. 3 The same rule applies to the publication of other notices and citation issued by the probate courts. Gen. Sts. c. 117, § 29. ' PEOBATE OF WILLS. 47 or waiver, must be in writing and signed by all the heirs at law, and should be annexed to the petition.' THE HEARING — ETIDENCfE OF THE SUBSCRIBING WITNESSES. When it appears to the court, by the consent in writing of the heirs at law or other stitisfactory evidence, that no person interested in the estate intends to object to the pro- bate of the will, the court may grant probate thereof upon the testimony of one only of the subscribing witnesses.^ But if it does not so appear, all the subscribing witnesses, if they are within the State, must be produced at the time and place named in the citation. If there is a codicil to be proved, the witnesses who attested it must also be present. The subscribing witnesses, being considered in law as placed near the testator to ascertain and judge of his capac- ity, the party objecting to the probate of the will has a right to insist upon the testimony of all of them, if they can be produced. Every clerk of a court of record, and every jus- tice of the peace may issue summonses to procure the at- tendance of the witnesses.^ If it appears that a subscribing witness is dead, evidence is admissible to prove his handwriting, and if all the wit- nesses are dead the signatures of all must be proved.* If, having been competent at the time *of his attestation, a wit- ness has since become insane, or disqualified by reason of conviction of an infamous crime, or otherwise, his handwrit- ing may be proved as if he were dead ; ^ but the fact of his 1 See Appendix, form No. 2. 8 Gen. Sts. c. 92, § 19. 3 See Appendix, form No. 5. * Nickerson v. Buck, 12 Cush. 332; Dean v. Dean's Heirs; 1 Williams (Vt.) 746; Jackson v. Luquere, 5 Cowen, 221 ; Jackson v. Le Grange, 19 Johns. 386. 5 Chase v. Lincoln, 3 Mass. 326. An executor, who is an attesting wit- ness, and accepts the trust, cannot prove the execution of the will, or the sanity of the testator, by reason of his interest arising from his liability for 48 PROCEEDINGS IN THE PEOBATE COURTS. incompetency must first be shown. If the witness cannot be found or resides out of the State, his handwriting may be proved, but it must first appear that a diligent search, satis- factory to the court under the circumstances, has been made for him. An indifferent inquiry, that leaves the matter in doubt, is not sufficient to let in secondary evidence of his attestation. In accounting for the absence of such a wit- ness, answers to inquiries made of persons supposed to be able to give information of him may be given in evidence.^ If an attesting witness who made his mark is dead, his mark must be proved to be his, and for this purpose evidence is admissible to show that the witness lived near the testator, that he could not write, and that no other person of the same name lived in the same neighborhood, and this evi- dence has been held sufficient to prove the attestation.^ Proof of the handwriting of a deceased attesting witness is primd facie evidence that he duly and properly attested the will ; ^ but the fact that he attested the will is not evidence that he believed the testator to be sane.* Where all the witnesses were dead, and no proof of their handwriting could be found, proof of the testator's handwriting was re- ceived as sufficient.^ costs. The will may be proved by the other witnesses and proof of his handwriting. Sears v. Dillingham, 12 Mass. 358. 1 Greenl. Ev. § 574. 2 Doe V. Capeterton, 9 Carr. & P. 59. In this case the will was attested by the signature of V. and the marks of Charles and Mary Drinkwater, and all were dead. V.'s handwriting was proved, and Mary Drinkwater testi- fied : " I am the daughter of Charles and Mary Drinkwater ; they are both dead ; they lived near the testator ; my mother could not write, and my father wrote his name only; no other Charles Drinkwater and no other Mary Drinkwater lived anywhere in that neighborhood." The evidence was held sufficient. In Jackson v. Van Dusen, the witness made his initials, which were proved. 5 Johns. 144. 3 Nickerson v. Buck, 12 Cush. 332. 4 Baxter v. Abbott, 7 Gray, 71. 5 Duncan v. Beard, 2 Nott & McCord, 400. PROBATE OF WILLS. 49 It sometimes occurs, particularly where the will has been made many years before it is offered for probate, that an attesting witness does not retain a clear recollection of the circumstances attending the execution of the instrument, and in such cases less strictness of proof is sometimes re- quired. In Dewey v. Dewey,' one of the witnesses testified that his name, which was upon the will, appeared to be his signature, but that he recollected nothing about it. One of the other witnesses testified that the first witness did sub- scribe in the testator's presence, and this was held sufficient. Dewey J. said, " The question is not, whether this witness now recollects the circumstance of the attestation, and can state it as a matter within his memory. If this were requi- site, the validity of a will would depend, not upon the fact whether it was duly executed, but whether the testator had been fortunate in securing witnesses of retentive memories. The real question is, whether the witness did in fact prop- erly attest it." ^ In the absence of evidence to the contrary, it has been presumed from the fact of attestation that the requisites of the statute have been complied with.^ If a subscribing witness should deny the execution of the will, he may be contradicted as to that fact by another sub- scribing witness ; and even if they should all swear that the will was not duly executed, the party offering the will would be allowed to go into circumstantial evidence to prove its due execution. But where the attesting witnesses so dehy their attestation, the evidence, to give effect to the will, must be very clear.* And where a witness has sworn that 'the 1 1 Met. 349. 2 Two of the three witnesses of a will nearly thirty years old, were dead, and their signatures were proved ; the third recognized his signature, but had no recollection of the transaction. The will was allowed. Verdier v. Verdier, 8 Rich. (S. C.) 135. 3 Clark V. Dunneyant, 10 Leigh, 13. 4 See Jackson v. Christman, 4 Wend. 282 ; Handy v. The State, 7 Harr. & John. 42. 50 PROCEEDINGS IN THE PROBATE COURTS. testator was not of sound mind, his testimony has been suc- cessfully met by the evidence of other persons; and wills have been established notwithstanding the adverse testi- mony of all the subscribing witnesses.' The due execution of the instrument and- the testamen- tary capacity of the testator having been established by the party offering the will for probate, the burden is upon the persons opposing the probate to^ sustain their objections. The rules observed as to the usual defences of fraud, undue influence, and revocation have been considered in previous sections of this chapter. No particular form of words is necessary to constitute a valid will. It may be admitted to probate, however inarti- ficial it may be in expression, provided it bears the char- acter and is executed according to the requisites of a will. A valid testamentary paper may be in the form of a deed or a letter.^ Upon the allowance of the will, if no appeal is taken, and if there is an executor named in the will who is com- petent and willing to accept the trust, letters testamentary will issue to him upon, his giving a sufficient bond for the faithful discharge of his trust. If there is no executor named in the will, or if the executor therein named declines the trust, or is incompetent, some suitable ' person will be appointed administrator with the will annexed.® ' Section IX. PROOF OF WILLS MADE OUT OF THE STATE. A will made out of this State, which might be proved and allowed according to the laws of the state or country in 1 1 Jann. on Wills (4tli Am. ed.), 77 ; Kinliside v. Harrison, 2 PhUI. 449 ; Le Breton «. Fletcher, 2 Hagg, 568 ; Landon v. Howard's Will, 2 Addams, 245 ; Peebles v. Case, 2 Bradf. (N. Y.) 226 ; Howard's Will, 5 Moor. 2 Bayley v. Bajley, 5 Cush. 260. 3 As to granting administration, see Chap. V. PROBATE OF WILLS. 51 which it was made, may be proved, allowed, and recorded in this State, and wiU thereupon have the same effect as if it had been executed according to the laws of this Com- monwealth.-^ In such cases the same certainty of proof is required as when the will is made in this State, but the particular facts to be proved in support of the will must depend upon the requirements of the local laws of the state or country in which the will may have been executed.^ It must be proved that all the formalities of execution made necessary by the local law, whatever they may be, were duly observed. The rules as to the testator's soundness of mind and the " pres- ence" of the testator are of general application, and the formal proceedings in probate court are the same as in cases of wills made in this State. Section X. PROOF OF LOST WILLS. A will, proved to have been duly executed, which cannot be found after the testator's death, is presumed to have been destroyed by him with the intention of revioking it, but this presumption may be rebutted by evidence.^ It may be that the will was destroyed by the testator in a fit ,oi insanity, or that it was lost, or accidentally or fraudulently destroyed. Such accidental or fraudulent destruction will not deprive parties of their rights under its provisions, if they can pro- duce the evidence necessary to establish the will. 1 Gen. Sts. c. 92, § 80. 2 Bayley v. Bailey, 5 Cush. 245. 3 Davis V. Sigourney, 8 Met. 487; Clark v. Wright, 3 Pick. 67; Idley v. Bowen, 11 Wend. 227. "The presumption may be repelled, nor does it require evidence amounting to positive certainty, but only such as reason- ably produces moral conviction." Sir John NichoU, in Davis v. Davis, 2 Add. 226. The presumption may be rebutted by probable circumstances, among which declarations of unchanged affection and intention have nluoh ■weight. Patten v. Poulton, 1 Swa. & Trist. 55. 52, PROCKEDINGS IN THE PROBATE COURTS. « The fact that the will was made by the testator must be proved, and it must be shown that in its execution the pro- visions of the statute were complied with. If the fact of its destruction is not clearly proved, it must be shown, to the satisfaction of the court, that it has been lost. It must appear that an honest and diligent search has been unsuc- cessfully made for it in the place or places where it was most likely to be found, and then evidence may be admitted to prove its contents.^ If the contents are proved, it can be admitted to probate. But, in order to establish a will under such circumstances, the whole contents must be proved, and the evidence must be strong, positive, and free from all doubt.^ The party applying for the probate of a lost will, should set forth in his petition all the material facts of the case, and should file with his petition a paper containing the con- tents of the will.^ Section XL ALLOWANCE OF WILLS PROVED OUT OF THE STATE. The executor or other person interested in a wilf proved and allowed in any other of the United States, or in a for- eign country, may produce a copy of the will and of the probate thereof duly authenticated, to the probate court in any county in which there is any estate, real or personal, on which the will may operate.* With the authenticated copy of the will should be presented a petition in writing, signed by the person presenting the will, setting forth the place of the testator's last residence, the facts that his will has been duly proved and allowed in such other state or country by 1 Jackson v. Betts, 9 Cowen, 208 ; Dan v. Brown, 4 Cowen, 483 ; Featt erly v. Waggoner, 11 Wend. 599. 2 Davis V. Sigoumey, 8 Met. 487; Durfee u. Durfee, ibid. 490, note. 3 See Appendix, forms Nos. 6 and 7. * Gen. Sts. c. 92, § 21. PROBATE OF WILLS. 53 the court having jurisdiction of the case, that there is estate^ real or personal, in the county in which the petition is pre- sented, upon which the will may operate, and praying that it may be filed and recorded. Upon such petition, the statute requires the court to as- sign a time and place for hearing the same, and to order notice to all persons interested to be given in some news- paper three weeks successively, the first publication to be thirty days at least before the time assigned. Such notice having been given, if it appears upon the hearing at the time assigned, that the instrument ought to be allowed in this State as the last will and testament of the deceased, the court orders the copy to be filed and recorded, and the will then has the same effect as if it had been orig- inally proved and allowed in this State.^ After the will is so allowed and ordered to be recorded, the court grants let- ters testamentary, or of administration with the will an- nexed, as the circumstances of the case may require, and proceeds to the settlement of the estate that may be found in this State.2 In cases of this kind no evidence of the execution of the wUl or of the sanity of the testator is required to be produced. The copy of the wiU, and of the decree of the court in which the will was originally proved, if properly authenticated, is conclusive, in the absence of any allegations of fraud, as to all the facts necessary to the establishment of the wiU, and as to the regularity of the proceedings and their conformity to the law of the state or country in which the will was originally proved.^ The usual questions to be determined are, whether the record presented is duly authenticated, whether the court in which the will purports to have been proved had jurisdiction, and whether there is any real or personal estate in the county on which the will may operate, 1 Parker v. Parker, 11 Cush. 519. 2 Gen. Sts. c. 92, § 23. 3 Crippen v. Dexter, 13 Gray, 330. 5* 54 PROCEEDINGS IN THE PROBATE COURTS. Section XII. PROO* OF SrUNCUPATIVE WILLS. A nuncupative will is a verbal disposition of the testator's personal estate, to take effect after his death. The statute provides that " a soldier in actual military service, or a mar- iner at sea, may dispose of his wages and other personal estate by a nuncupative will, as he might heretofore have done." The same provision was contained in the revised statutes (1836), and is the only provision relating to nuncu- pative wills in the statutes of this State. Previous to the revised statutes any person, being in his last sickness, might dispose of his personal estate by a nun- cupative will, and the manner of making and establishing such a will was prescribed at length by statute (1783, chap. 24). That statute, however, did hot apply the term " nun- cupative " to the testamentary difipositions of soldiers and mariners, but provided that they might dispose of their per-' sonal estate as they might have done before the passage of that act. The same exception was made in the provincial act, 4 W. & M. c. 3 ; and the statute of frauds (29 Car. II. c. 3), which particularly prescribed the manner of making and proving nuncupative wills, provided that soldiers and sailors might dispose of their personal property as they had previ- ously done. The distinction between nuncupative wiUs, and the unwritten wills of soldiers and sailors, was recog- nized at a very remote period. The unwritten wiUs of soldiers were denominated military wills, and other verbal testaments nuncupative wills.^ The revised statutes of this State applied the term nuncupative to the wills of soldiers and mariners, but expressly reserved their previously exist- ing rights as to their testamentary dispositions. It has been held accordingly in this State, and in other States where a 1 Swinburne, Pt. 1, §§ 12, 14. PROBATE OF WILLS. 55 dmilar provision of statute exists, that the rule governing the Duly unwritten wills now recognized, is the common law as it stood before the passage of the statute of frauds.^ The wills of seamen have been held to come within the reason and the rule of military testaments.* Although no form of words is needed to constitute a good nuncupative will, it is very necessary that the testator's declarations should plainly express his intentions. Swin- burne says : " As for any precise form of words, none is re- quired, neither is it material whether the testator do sjpeak properly, or unproperly, so that his meaning do appear." " And although in written testaments it be also required that the words and sentences be such as thereby the testa- tor's meaning may appear ; yet more specially is it required in a nuncupative testament, for more supply may be made in written testaments than can be made in nuncupative tes- taments, concerning the testator's meaning." ^ Nuncupative wills may be made not only by the proper motions of the testator, but also in answer to the interrogation of other persons.* I In the Goods of Arthur White, 22 Law Kep. 110; Hubbard v. Hub- bard, 4 Selden, 196. ^ It has been held that the purser of a man-of-war is within this descrip- tion, and that it includes the whole service, applying equally to superior officers up to the commander-in-chief as to a common seaman, being at sea. In re Hays, 2 Curt. 338. And it has been held to apply to merchant sea- men. Euston V. Seymour, cited 2 Curt. 339. A cook on board a mer- chant ship is a mariner. Ex parte Thompson, 4 Bradf. (N. Y.) 160. 3 Part 4, § 29. ' 4 Swinburne, Pt. 1, § 12. While in his last sickness, and about an hour before he died, being of sound mind, on being asked as to the disposition of his property, the testator said in the presence of several witnesses, that he " wished his wife to have all his personal property." Beckwith, the mate of the vessel, then asked him, if he wished her to have all his real prop- erty, and he replied, " yes, all." He was then asked if he had no will, and he replied that he had had one, but it was destroyed. He was then asked by B., what he should tell his wife, and he replied, "tell her I loved her 56, PEOCEEDINGS IN THE PROBATE COURTS. To prove a nuncupative will, it must appear that the tes- tator was either a soldier in actual military service, or a mariner at sea, at the time when he made his testamentary- declarations. The English courts have held that the priv- ilege does not extend to soldiers quartered in barracks, either at home or abroad, but that the soldier must be en- gaged on an expedition at the time.^ In behalf of seamen, however, the rule has been carried to the extreme limit of construction.^ The substance of the testator's requests or instructions must be established, and it must be proved to the satisfaction of the court that the testator intended by his declarations to make a testamentary disposition of his property. It must appear, of course, that the testator was of sound mind. No particular number of witnesses is required to establish a nuncupative will, but every fact necessary to support it should be proved by the most positive evidence. The great danger of mistake, particularly in cases where the testator's declarations were not reduced to writing soon after they were made, and the obvious facilities for the fraudulent set- ting up of such wills, render it necessary that the evidence should be subjected to the closest scrutiny. Unless it is made morally certain that the declarations proved contain the true substance and import, at least, of the alleged nun- till the end." He was subsequently asked by B. who he wanted to settle his affairs, and he answered, " I want you to do it." He did not ask any one to bear witness that what he stated was his will. These conversations were proved by four witnesses. It was held that they constituted a good nun- cupative will, and that the evidence was sufficient to show that the testator intended to make B. his executor. Hubbard v. Hubbard, 4 Selden, 196. 1 Drummond v. Parish, 3 Curteis, 522 ; White v. Ripton, ibid. 818. 2 A sailor, while the ship was in a foreign harbor, obtained leave to go on shore, where he was so injured by an accident, that he did not return to the ship, but died of his injuries in a few days after the accident. His nuncupative will was held to be the will of a seaman " at sea," though he was not on board the vessel at the time. In the Goods of Lay, 2 Curteis, 375. PROBATE OF WILLS. 57 cupation, and embody the testator's real testamentary inten- tions, the will cannot safely be allowed.^ The person applying for the probate of a nuncupative will, should set forth in his petition the material facts of the case, and the substance of the testamentary declarations of the testator.^ The usual notice must be given before any hearing upon the question of proving the will can be had. At the hearing, the will is reduced to writing in the form in which it may be established by the evidence, and is then admitted to probate.* 1 In the probate court of Suflfblk county, a nuncupative will was admitted to probate on the testimony of one witness, who was also a legatee under the will ; the court held that he was not an " attesting witness," and there- fore not disqualified by reason of interest. In the Goods of Arthur White, 22 Law Reporter, 110. 2 See Appendix, forms Nos. 8 and 9. 3 The use is to prove it by witnesses and then to write it. Swinburne, Pt. 1, § 12. " Being after his death proved by witnesses and put in writing by the ordinary." Bac. Abr. Wills, D. CHAPTER III. DEPOSIT, CUSTODY, AND PROCEEDINGS IN CASE OF CONCEALMENT OF WILLS. A will, when executed, if the testator sees fit, may be deposited in the Registry of Probate in the county where he lives, for safe-keeping, and the register, upon being paid the fee of one dollar, is required to receive and keep it, and give a certificate of the deposit thereof. The will so depos- ited must be inclosed in a sealed wrapper, indorsedwith the name of the testator, bis place of residence, the day when, and the person by whom it is delivered, and may have in- dorsed thereon the name of the person to whom it is to be delivered after the testator's death.^ Such will, during the lifetime of the testator, can be deliv- ered only to himself, or to some person authorized by him, by an order in writing duly proved by the oath of a subr scribing witness ; after his death it will be delivered to the person named in the indorsement on the wrapper, if there is a person so named who demands it. In the mean time it cannot be opened or read. If not so demanded it will be.: publicly opened at the first probate court held after notice of the testator's death. It will then be retained in the reg- istry until it is offered for probate ; or if the jurisdiction of the case belongs to another court, it will be delivered to the executors or other persons entitled to its custody to be pre- sented for probate in such other court.^ The statute requires every person, other than the register; of the probate court having the custody of a will, within thirty days after notice of the death of the testator, to deliver it into the probate court which has jurisdiction of the case, or to the executors named in the will ; and if with- 1 Gen. Sts. c. 92, §§ 12, 13. 2 Ibid. §§ 14, 15. CONCEALMENT OF WILLS. 59 out reasonable cause he neglects to do so after being duly cited for that purpose, he may be committed to the jail by warrant of the court, there to be kept in close custody until he so delivers the will; and he will be further liable to any party aggrieved for the damage sustained by such neg- lect.i In order that such a citation may issue, a petition setting forth the facts should be presented to the court. Any person interested may petition.^ Upon complaint under oath made to the probate courtoby a person claiming to be interested in the estate of a person deceased, against any one suspected of retaining, concealing, or conspiring with others to retain or conceal any will or tes- tamentary instrument of the deceased, the judge may cite the suspected person to appear before him and be examined on oath upon the matter of the complaint.^ The citation may be served by an officer qualified to serve civil process, or by a private person. If by a private person, the fact that ser- vice was made as ordered must be proved by his affidavit. The affidavit may be conveniently indorsed on the citation.* If the person cited refuses to appear and submit to exam- ination, or to answer such interrogatories as are lawfully propounded to him, or to obey any lawful order, the judge may commit him to the jail, there to remain in close custody until he submits to the order of the court.® All such inter- rogatories and answers must be in writing, and signed by the party examined, and filed in the probate court ; but the person examined cannot be required to criminate himself. On such complaint the judge in his discretion may award costs to be paid by either party, and may issue execution therefor.^ 1 Gen. Sta. c. 92, § 16 ; Stebbins v. Lathrop, 4 Pick. 33 ; Hill v. Davis, 4 Mass. 137. This section applies to executors having custody of a will as to other persons. Com. Kep. 1834, c. 63, note. 2 See Appendix, form No. 10. 3 Ibid. Nos. n, 12. 4 Ibid. No. IS. 5 Ibid. No. 14. 6 Gen. Sts. c. 92, §§ 17, 18. CHAPTEK IV. APPOINTMENT OF EXECUTORS. ^jj executor is the person to whom the testator has con- fided the trust of administering his estate, according to his last will and testament. He can derive his office only from a testamentary appointment confirmed by a decree of the probate court. The appointment is generally made by express words contained in the will, but it may be made constructively by other than express words. The form of petition for the probate of a will in common use, made by the executor named in the will, prays that administra.- tion be granted to him ; and when the will has been proved and allowed, letters testamentary are issued to him, pro- vided that he is legally competent for the office and gives bond for the discharge of the trust as required by law. WHO MAY BE EXECUTORS. Any person may be nominated as executor, but all per- sons are not legally competent to act in that office. A minor or an infant ventre sa mere may be nominated in the will ; but if at the time of proving the wiE the executor named therein is not of full age, administration with the will annexed is granted to some other person during his minority, unless there is another executor nominated in the will who accepts the trust, in which case such other executor administers until the minor arrives at full age ; he can then by giving bond be admitted as joint executor.^ If the ex- ecutor named in the will is physically or mentally incapaci- 1 Gen. Sts. c. 93, § 7. APPOINTMENT OF EXECUTORS. 61 tated, administration is granted to some other person. Any objection that would cause the removal of an executor is sufficient to prevent the confirmation of his appointment by the court.i According to the common law, if an unmarried woman was. appointed executrix and accepted the trust, and after- wards married, her husband became executor in her right and administered jointly with her. But this rule has been changed by statute in this State. Her marriage operates as an extinguishment of her authority, and her husband cannot administer in her right.^ The statute, however, does not reach the case of a married woman who is appointed ex- ecutrix in a will made and proved during the coverture. By the common law the husband's consent is necessary to en- able her to administer, the reason being that husband and wife are required to join and be joined in all actions, and that the wife can do no act which may prejudice the hus- band without his consent.' EXECUTORS TO GIVE BOND. General Bond. The executor, before lette]fs testamentary are issued to him, is required to give bond with sufficient surety or sureties, in such sum as the judge of the probate court shall order, payable to the judge and his successor, with condition to return to the probate court, within three months, a true inventory of the estate of the deceased ; to administer according to law and the will of the testator, all the personal estate and the proceeds of all real estate sold 1 As to removals, se.&post, ciap. viii. 2 (Jen. gts. c. 101, § 4. 3 1 Wms. Ex. (5th Am. ed.), 201. The reason of this rule does not apply under our statutes, which authorize a married -woman to perform any- labor or services on her sole and separate account, and sue and be sued alone, without making her husband liable (Gen. Sts. c. 108, §§ 3, 5). Under the canon law, by which married women could sue and be sued alone, they could take the office of executrix -without the consent of the husband. 62 PROCEEDINGS IS THE PROBATE COURTS. for the payment of debts and legacies ; ^ and to render upon oath a just and true account of his administration within one year, and at any other time when required by the court. When two or more persons are appointed executors, none can intermeddle or act as such but those who giv« bond.^ Bond when the Executor is Residuary Legatee. T^ it ap- pears to the judge that the bond above described is not necessary for the protection of any person interested in the estate, he may permit an executor, who is residua/ry legatee, instead of giving such bond, to give a bond with condition to pay all debts and legacies of the testator, and such sums as may be allowed by the probate court for necessaries to the widow or minor children ; and in such case he is not required to return an inventory ^^ An executor therefore, who is residuary legaifcee, may give a bond in the common form, which requires him to return an inventory of the estate ; or he may be excused the labor and expense of making an inventory by giving bond to pay debts, legacies, and allowances. It is at his own option to give one or the other. The reason of this indulgence is, that as he is residuary legatee, no person can have an inter- est in prociuring evidence of the assets except the creditors, legatees, and family of the deceased ; and if he binds him- self to pay all their claims, the amount of the assets is of no concern to any person except himself. But if he chooses to bind himself to pay the debts and legacies, he must abide by the consequences of his election. He must fulfil the condition of his bond, whether the assets are sufficient for the purpose or not. The condition of the bond is not to pay if there are assets, but to pay at all events. By giving 1 But he may be exempted by the court from giving bond for the pro- ceeds of sales of real estate, except when authorized to sell it. Gen. Sts. 0. 101, § 13. '2 Gen. Sts. c. 93, § 2. As to bonds, generally, see^osi, chap. xix. 3 Gen. Sts. c. 93, § 8. APPOINTMENT OF EXECUTORS. 63 such a bond he conclusively admits assets, and the admis- sion will bind him and his sureties, even if the estate proves insolvent.! If, on the other hand, he gives a bond in the common form and returns an inventory, he vsrill be respon- sible for the assets, but no further. When the executor knows that the estate is sufficient to meet all the claims against it, with the charges of administration and the allowances made to the widow and children of the tes- tator, he may safely give a bond to pay the debts and legacies ; but where there is any doubt whatever ,of the sufficiency of assets, he should give bond in the common form and return an inventory.^ The better course, in all eases, is to give a bond in the common form. When no Sureties a/re required. Executors are exempted from giving a surety or sureties in their bonds, when the* testator has ordered .or requested such exemption, or that no bond should be taken, or when all the persons interested in the estate who are of full age and legal capacity, other than creditors, certify to the court their consent thereto ; but not until aU creditors of the estate, and the guardian of any minor interested therein, have been notified, and had opportunity to show cause against the same. The judge, 1 Colwell V. Alger, 5 Gray, 67. In a suit to recover a legacy, the plain- tiff need not give any proof except such bond, that the executor has assets in his hands. Jones v. Bichardson, 5 Met. 247. A bond to pay,debts and legacies, given by an executor who is residuary legatee, who has thus been excused from returning an inventory within three months, cannot, after the expiration of a year and a half, be canr celled or surrendered by the probate court, or supreme court. Alger v. Colwell, 2 Gray, 404. 2 The giving of the bond to pay debts and legacies does not discharge the lien on the real estate of the testator for the payment of his debts, except on such part as shall have been sold by the executor to a purchaser in good faith and for a valuable consideration ; all estate not so sold may be taken on execution by any creditor not otherwise satisfied, in like man- ner as if a bond had been given in the other form. Gen. Sts. c. 93, § 4. 64 PROCEEDINGS IN THE PEOBATE COUETS. however, may at or before the granting of letters testa- mentary, require bond with sufficient surety or sureties, if he is of opinion that the same is required by a change in the situation or circumstances of the executor, or for other sufficient cause.^ The fact that there are creditors would probably be deemed sufficient cause to require sure- ties in any case. If a person appointed executor refuses to accept the trust, or, after being duly cited for that purpose, neglects to ap- pear and accept the same, or neglects for twenty days after probate of the will to give bond, letters testamentary are granted to the other executors, if there are any capable and willing to accept the trust ; and if there are none, or if the executors are dead, or none are named in the will, adminis- rtration of the estate with the will annexed is granted to such persons as would have been entitled thereto if the deceased had died intestate ; but after the expiration of the twenty days, and before letters testamentary or of adminis- tration are granted, the court may grant letters testamentaryff to any person appointed executor who gives the bond pre- , scribed by law.^ 1 Gen. Sts. c. 93, § 5. a Ibid. c. 93, § 6. CHAPTER V. APPOINTMENT OF ADMINISTRATORS. When a person dies, not having disposed of his property by will, he is said to die intestate, and the law prescribes the manner in which his estate may be settled, and the rights of all persons interested secured. IN WHAT CASES ADMINISTRATION IS GRANTED. Administration may be granted by the probate court for each county of the estates of persons who at the time of their decease were inhabitants of or resident in such county.^ Administration de bonis non. If a sole administrator dies before he completes the trust committed to him, or is re- fnoved by the court, or resigns, or, being an unmarried wo- man, marries, administration de bonis non (of the estate not administered), will be granted, provided there is personal estate left unadministered to the amount of twenty dollars, or debts to that amount are remaining due from the estate.^ Administration with the will annexed^ In certain cases administration is granted of testate estates ; where the tes- tator omits to name an executor in his will, or when the only executor named in the will is dead, or refuses to ac- cept the trust, or after being cited for that purpose does not appear,^ or fails to give bond for twenty days after probate of the will,* or is a minor,^ or otherwise legally incompe- tent. In such cases administration with the will annexed is granted. 1 Gen. Sts. c. 117, § 2. 2 ibid. c. 101, § 1. 3 Ibid. c. 93, § 6. 4 Ibid. 5 ibid. § 7. 6* 66 PROCEEDINGS IN THE PROBATE COURTS. Administration de bonis non with the will annexed. When a sole executor or administrator with the will an- nexed dies after entering upon the duties of his trust and before it is discharged ; or is removed by the court ; or re- signs ; or, being an unmarried woman, marries ; administra- tion de bonis non with the will annexed is granted, provided there is personal estate not administered to the amount of twenty dollars, or debts to that amount are remaining due from the estate, or that there is anything remaining to be performed in execution of the will.^ Special Administration, When by reason of a suit con- cerning the proof of a will or from other cause, there is delay in granting letters testamentary or of administration, the probate court may appoint a special administrator to collect the effects of the deceased and preserve them for the executor or administrator who may be afterwards ap- pointed.^ Ancilla/ry Administration. When a citizen of another State or country dies leaving estate to be administered in this State, administration of such estate may be granted here.^ In such case the administration granted here is treated as merely ancillary or auxiliary to the principal administration granted in the jurisdiction where the de- 1 Gen. Sts. c. 101, § 1. 2 Ibid. c. 94, § 6. 3 A debt due the deceased from an inhabitant of this State is estate that may be administered here. Piquet, appellant, 5 Pick. 65 ; Emery v. Hil- dreth, 2 Gray, 231. So are articles of furniture and plate though of small value ; anything corresponding to hona notabilia in England would be suffi- cient for that purpose. Harrington v. Brown, 5 Pick. 521. See Crosby v. Leavitt, 4 Allen, 410. If a judge of probate is satisfied that a creditor of a deceased non-resi- dent has reasonable grounds for art averment that the deceased debtor fraudulently conveyed his real estate in this Commonwealth, he ought to grant administration upon the estate of such person, in order that the ques- tion of fraud may be fully tried in a court of common law. Bowdoin v. Holland, 10 Cush. 17. APPOINTMENT OF ADMINISTRATORS. 67 ceased dwelt. The appointment, however, of an adminis- trator in the State where the deceased had his domicil is not a necessary prerequisite to the granting of such ancillary administration ; but administration of the estate in this State may be granted although no administrator has been appointed in the foreign state ; and even if the deceased left a will, which has never been offered for probate in the place of his domicil.^ WITHIN WHAT TIME ADSONISTRATION MUST BE APPLIED FOE. Administration is not originally granted after the expira- tion of twenty years from the death of the intestate, except when property accrues to the estate, or belonging to the estate first comes to the knowledge of any person interested therein after that time, in which case original administra- tion may be granted on such property at any time within five years next after it so accrues or becomes known ; but such administration can affect no other property.^ But if administration has once been granted, and left unfinished by the death, removal, or resignation of the ex- ecutor or administrator, administration de bonis non may be granted after the expiration of twenty years. There is no statute limiting the time of granting administration of es- tate left unadministered by a former executor or adminis- trator.^ IN WHAT COUNTY ADMINISTRATION MUST BE APPLIED FOR. The petition for administration must be presented to the probate court of the county of which the deceased was an 1 Bowdoia v. Holland, 10 Cush. 17. 2 Gen. Sts. c. 94, §§ 3, 4. If a creditor who has failed to receive his divi- dend from an insolvent estate has deceased, an administrator may be appoint- ed to receive and administer said dividend, although more than twenty years have elapsed since the creditor's death. Ibid. c. 99, § 28. 3 Bancroft v. Andrews, 6 Cush. 493. 68 PROCEEDINGS IN THE PROBATE COURTS. inhabitant or in which he was resident at the time of his death.i If the deceased person died without the State, application must be made to the probate court of the county in which he left estate to be administered. TO WHOM ORIGINAL ADMINISTRATION IS GRANTED. The statute ^ provides that — " Administration of the estate of an intestate shall be granted to some one or more of the persons hereinafter mentioned ; and they shall be entitled thereto as follows ; — " First. His widow, or next of kin, or both, as the probate court shall deem fit ; and if they do not either take or re- nounce the administration, they shall, if resident within the county, be cited by the court for that purpose." " Second. If the persons so entitled are incompetent, or evidently unsuitable for the discharge of the trust, or if they neglect without sufficient cause for thirty days after the death of the intestate- to take administration of his estate, the probate court shall commit administration to one or more of the principal creditors, if there is any competent and willing to undertake the trust," The policy of granting administration to those most directly interested in the estate of the deceased has been long estab- lished. The statute 31 Edw. lit. c. 11, which first took from the clergy their exclusive right to administer, provided that "the ordinaries shall depute of the next and most lawful friends of the dead person intestate to administer his goods ; " and the statute 21 Henry VIII. c. 5, provided that administration should be granted "to the widow of the deceased, or to the next of his kin, or to both, as by discre- tion of the same ordinary shall be thought good." This language of the statute Henry VIII. was followed in our ' Gen. Sts. c. 117, § 2. As to jurisdiction of the probate courts depending on the question of residence, see ante, page 45, notes. 3 Gen. Sts. c. 94, § 1. APPOINTMENT OF ADMINISTRATORS. 69 statute of 1783 (c. 36), and still stands without material change. Who a/re next of Kin. In this State, the degrees of kindred are computed according to the rules of the civil law, which makes the deceased person the point from whence the degrees are numbered. Thus, a man's parents are relat- ed to him in the first degree, and so are his children. Both are equally near, but in granting administration the children, if competent, are preferred, they having a more direct interest in the estate. A grandson is in the same degree of kindred to the intestate as the intestate's brother, but is preferred for the same reason. Kindred are lineal or collateral. Lineal consanguinity is that subsisting between persons who are all in a direct line of descent, one from the other, as between son, father, and grandfather ; or father, son, and grandson, reckoning either upwards or downwards. Collateral kinsmen are those who are descended from one common ancestor, but not one from the other. A man and his cousins are collateral relations ; they both descend from the same grandfather, but not lin- eally. The next lineal kindred of an intestate are easily ascer- tained by counting either directly upwards or directly down- wards to his nearest living relative. His father and son are both in the first degree ; his grandfather and grandson both in the second. The nearness of a collateral kinsman to the intestate is ascertained by counting upwards to the common ancestor of both, and then following the branch downwards until the collateral kinsman is reached, reckoning one degree for each person. Thus, the intestate's brother is in the second degree ; this is seen by counting upwards to their father, their common ancestor, one degree, and then down- wards, collaterally, one degree, to the brother. The intes- tate's uncle is in the third degree, and so is his nephew. His cousin is in the fourth. 70 PROCEEDINGS IN THE PROBATE COURTS. Following this computation of kindred, and observing the preferences arising from interest, administration of the es- tate of an intestate will be granted to his next of kin in the following order : first," to children ; second, if there are no children, to parents ; third, if there are no children nor par- ents, to brothers and sisters, either of the whole or half blood ; fourth, to grandparents ; fifth, to nephews, nieces, uncles, aunts ; sixth, to cousins. No distinction is made between kindred on the father's or mother's side. They are all in equal degree of kindred, and hence it may happen that there are . persons equally related to the intestate and equally entitled to the administration, who are not related at all to each other. As to the Right of the Widow and next of Kin to adminis- ter. The statute does not give the widow an exclusive right to administer her husband's estate if there are next of kin who also claim the right, and are suitable persons. The right is first in the widow and next of kin, either or both, as the court may deem fit ; and the personal suitableness of the widow and next of kin, is to be considered in making the appointment. If the widow is evidently unsuitable, the next of kin, if competent, is entitled to the sole administration. If the next of kin is unsuitable, she, if competent, may take administration alone. If both are suitable, the court may grant administration to either, or jointly to both; and if both are unsuitable the application of both will be refused. And where there are several persons equally entitled to take administration as next of kin, and equally suitable, the probate court has power to appoint one or more of them. If the widow and next of kin, as is often the case, re- nounce the administration, their renunciation does not give them a right to nominate a substitute.' There may be creditors whose right to administer under the statute is 1 Cobb V. Kewcomb, 19 Pick. 337. APPOINTMENT OF ADinNISTEATOKS. 71 prior to that of any such substitute. But where there are no creditors who are suitable, or if the creditors refuse, after being cited, to take the administration, any suitable person will generally be appointed on the recommendation of the widow and next of kin. Nor will the renunciation of the next of kin, or the fact of their incompetency, give to other relatives of the intes- tate any right to administer. The preference made by the statute is of the next of kin, and if they decline, or are un- suitable, creditors are preferred to other kindred. As to the suitableness of the Widow or next of Kin. The question of suitableness must depend, in some measure, upon the facts of each case.^ A person may be entirely suitable to administer when little more than some formal proceeding is necessary for the settlement of the estate, and may be unsuitable when the duties to be discharged are of a diflFerent character. The object of administration is to dispose of the estate of the intestate so as to secure the rights of creditors and make the best provision possible, under the circumstances, for the kin of the deceased. A person of unsound mind is of course unsuitable for such a trust, and so is a person whose relation to the estate is such as to create the presumption that he would not admin- ister with a due regard to the rights of those interested in 1 It has been held that the widow may be set aside, if she has barred herself of all interest in her husband's personal estate, by her marriage set- tlement, or has eloped from her husband, or lived separate from him. If she has been divorced, a mensa et tJioro, she forfeits, it should seem, her right to administer. 1 Wms. Ex. (5th Am. ed.) 363. Where, upon the application of the widow, it appeared that she was under the influence of a person who was indebted to the estate in a large amount, and who was charged with combining with the intestate in his lifetime to defraud his creditors, and that such application was made at the request of such debtor and not to protect or subserve the interests of the widow, it was held that she was an unsuitable person to administer. Stearns i'. Fisk. 18 Pick. 24. 72 PROCEEDINGS IN THE PROBATE COUETS. the estate. The fact that one of several next of kin is also a creditor of the estate, is rather averse to, than in favor of his being preferred. So, if he owes the estate, especially when the balance due has not been definitely ascertained, A man who is accustomed to business details is more suit- able for the office of administrator than one who is not. Unsuitableness may be occasioned by physical debility, want of memory, or any infirmity which would prevent the efficient discharge of the duties required. In determining the question of suitableness, the relations of the applicant to the estate and to the other parties interested, the charac- ter of the duties which the condition of the estate will be likely to require of the administrator, and his personal fitness for those duties, are to be considered. A minor cannot ad- minister.' A citizen of another State or country, if otherwise suitable, may be appointed to administer in this State. The fact that one who is personally unsuitable is ready to give bond with sufficient sureties for the faithful discharge of his trust, does not make him suitable. The remedy of parties damaged by his official misconduct, by action on his bond, may subject them to expense of litigation for which they can have no legal adequate remedy ; and be- sides, an administrator, if so disposed, may prejudice the interests of parties concerned without being exposed to any action.^ As to the Right of Creditors to administer. If the widow and next of kin are incompetent, or evidently unsuitable, or if they neglect for thirty days after the intestate's death to take administration of his estate, the court grants ad- ministration to one or more of the principal creditors. This right is given to the creditor under such circumstances, in order that the collection of his claim may not be defeated for want of an administrator. The creditor applying must 1 McGooch V. McGooch, 4 Mass. 348. a Stearns ti.Fisk, 18 Pick. 27. APPOINTMENT OF ADMINISTRATORS. '73 satisfy the court that he is a creditor, and this he may do by exhibiting his books of account or other evidences of debt. The amount of his claim seems not to be material,^ but the claim must be one which by law survives.^ The creditor cannot be appointed, however, until after the widow and next of kin have been cited, and had opportunity either to take or renounce the administration. The same consid- erations as to personal suitableness apply to a creditor who petitions for a grant of administration as to one next of kin. K the deceased left no widow, husband, or next of kin in this State, administration is granted to a public administrator in preference to creditors. As to the Right of other Persons to administer. The statute regulating the granting of administration further provides : — " 3d. If there is no such creditor, administration shall be granted to such other person as the court shall deem fit ; provided, — " 4th. That if the deceased was a married woman, admin- istration of her estate shall in all cases be granted to her husband, if competent and willing to undertake the trust,^ unless by force of a marriage settlement or otherwise she has made some testamentary disposition of her separate estate, or some other provision, which renders it necessary or proper to appoint some other person to administer her estate ; and " 5th. If the deceased leaves no widow, husband, or next of kin, in this State, administration shall be granted to a public administrator in preference to creditors." 1 Arnold v. Sabin, 1 Cush. 525. In this case the claim of the creditor who was appointed was for Ji/ty-eight cents. 2 vStnith V. Sherman, 4 Cush. 408 ; Stebbins v. Palmer, 1 Pick. 71. 3 If the marriage was voidable, the husband will be entitled to adminis- tration, unless sentence of nullity was pronounced before her death. If it was void from the beginning, he is not entitled to administer. 1 Wms. Ex. (5th Am. ed.) 357. 74 PROCEEDINGS IN THE PROBATE COURTS. When Administration is granted to a Public Administrator. The statute provides for the appointment, in each county, of one or more public administrators, and makes it the duty of such administrator to administer upon the estate of any person who dies intestate within his county, or dies else- where, leaving property in such county to be administered, and not leaving a known husband, widow, or heir in this State. But the administration will not be granted to the public- administrator when the husband, widow, or any heir of the deceased claims in writing the right of administering, or requests the appointment of some other suitable person, if such husband, widow, heir, or other person accepts the trust and gives bond ; and such husband, widow, heir or other person may be appointed after letters of administra- tion have been granted to a public administrator, and before the final settlement of fhe estate. Upon such appointment of a successor the power of the public administrator over the estate ceases.^ TO WHOM OTHER THAN ORIGINAL ADMINISTRATION IS GRANTED. Neither the widow or next of kin have a right to the grant of administration de bonis non?' The priority of right to administer is regulated entirely by statute, and a distinction in this particular is made between original and other administration. It is provided, in case of the death or resignation of the original executor or administrator, without having fully administered the estate, that admin- istration de bonis non may be granted " to some suitable person ; " ^ and in case of the removal of the executor or administrator, " to such person as shall be deemed fit." * These provisions, while they do not exclude any person from the administration, give the probate court full discre- tion in the selection of the new administrator. In some 1 Gen. Sts. c. 95, §§ 1-4. 2 Russell v. Hoar, 3 Met. 190. 3 Gen. Sts. c. 101, §§ 1, 5. i Ibid. § 2. APPOINTMENT OF ADMINISTRATOES. 75 cases* where administration with the will annexed is granted, the next of kin may have no interest in the estate. They may take nothing under the provisions of the will, or their legacies may have been paid to them by the original executor. In such cases, the residuary legatee, or other person interested under the will, is entitled to ad- minister, the general policy of the law in granting admin- istration being to give the management of the property to the person who has the beneficial interest in it. PROCEEDINGS IN PROBATE COURT. — PRACTICE. The Petition. The person claiming administration must apply by petition in writing to the probate court having jurisdiction of the case.^ The petition should set forth the fact of the death of the person whose estate is to be admin- istered, the time of his death, the county of which he was last an inhabitant, or in which he was resident, and the grounds on which the petitioner claims the right to admin- ister. The petition should also state the name and resi- dence of the widow, if any, of the deceased, and the names, residences, and degree of kindred of his next of kin. If the next of kin are minors, the fact should be stated. If the petition is by a creditor, the fact that the widow and next of kin have neglected for thirty days since the intestate's death to take administration should be stated. If the petition is for the appointment of a special admin- istrator, the reasons for which letters testamentary or of administration are delayed, whether in consequence of a suit .concerning the proof of a wiU, or other cause, should be stated in the petition. If the petitioner is a stranger to the estate the reasons upon which he bases his application should be fully stated. When a public administrator petitions, the fact that the 1 As to jurisdiction, see ante, pages 45, 67. 76 PROCEEDINGS IN THE PROBATE CODRTS. deceased left no husband, widow, or heir in this State should be set forth. If the petition is for other than original administration it should set forth the fact of the death, resignation, or removal of the executor or original administrator ; and it should also appear from the petition that there is personal estate of the deceased remaining to be administered to the amount of twenty dollars, or that there are debts to that amount re- maining due from the. estate, or that something remains to be performed in execution of the wiU.^ Notice to Persons interested. The next step in the pro- ceedings is the notification of all persons interested of the pendency of the petition. This is absolutely necessary wheii the petitioner is a creditor or other person than the husband,' widow, or next of kin of the deceased, unless all persons having an equal or prior right to administer assent to the appointment of the petitioner, or renounce their right. The neglect of the widow and next of kin for thirty days after the intestate's death to take administration does not render their citation the less necessary, although a literal construction of the statute would seem to indicate other- wise.^ The citation need not be personally served upon the widow and next of kin. It may be difficult in many cases to ascertain who are the next of kin, and if personal service was required the proceedings would necessarily be attended with uncertainty and delay. The statute does not define the manner in which the citation shall be served, but leaves it to the discretion of the court. Ordinarily, publication of a general notice to all parties interested will be a sufficient citation. Any person interested in the estate may appear and show cause for or against the appointment of the person named in the petition. 1 As to petitions for administration, see Appendix, forms Nos. 15-25. 2 Arnold v. Sabin, 1 Cuah. 525. APPOINTMENT OP ADMINISTBATOES. 77 If the person or persons whose right to administer is prior or equal to the petitioners renounce administration in writing, the delay and expense of a citation may be avoided. But if the person having such prior claim comes into court and verbally declines to take administration, it is not enough. The renunciation, to be effectual, must be recorded, and should therefore be made in writing in all cases.^ As to Proof of the Death. The questions usually raised in cases where the petitioner's appointment is contested re- late to his suitableness for the trust, or to the priority of his right. It is not often that any doubt exists of the death of the person whose estate is the subject of the petition, but such cases occur where the long-continued absence of the person, without being heard of, renders his death probable, though the fact cannot be proved. After the lapse of seven years, without intelligence concerning him, the law pre- sumes that he is dead, and administration is granted accordingly. It must appear, however, that he has not been heard from by persons who would have been likely to hear from him, if living, or that ineffectual search has been made for such a person. But though the presump- tion of death does not attach to the mere lapse of time, short of seven years, the fact of death may be found from a shorter period, when other circumstances concur; as, if the party sailed on a voyage which should long since have been accomplished, and the vessel has not been heard from'; under such circumstances administration has been granted after the Idpse of one year.^ 1 Arnold v. Sabin, 1 Cush. 525 ; and see Stebbins v. Latlirop, 4 Pick. 44. 2 Administration was granted in January, 1 858, on the estate of A., who sailed from Liverpool in January, 1857, for Valparaiso; the voyage should have been made in ten weeks ; nothing had been heard of the ship. Held, that payment by the underwriters of the amount for which the ship was insured was very strong evidence in support of the petition for administra- tion. In the Goods of Main, I Swabey & Tris. 11. 7* > 78 PROCEEDINGS IN THE PROBATE COURTS. Administtators' Bonds. The appointment of the ad- ministrator or administrators is made complete by the ap- proval of the bond required of them by statute. The bond must be with sufficient sureties, in such sum as the judge of the probate court orders, payable to the judge and his successors, and with condition, in the case of an original administrator, to retmn into the probate court within three months a true inventory of all the estate of the deceased ;■ to administer according to law all the personal estate and the proceeds of all real estate sold for the payment of debts ; to render upon oath an account of his administration within one year, and at any other times when required by the pro- bate court ; to pay any balance remaining in his hands upon the settlement of his accounts to such persons as the court shall direct ; and to deliver his letters of administration into the probate court in case any will of the deceased is there^ after proved and allowed. The condition of the bond re- quired of an administrator de bonis non is the same as that of an administrator originally appointed.^ Administrators with the will annexed, and administrators de bonis non with the will annexed, are required to give bond with condition to return an inventory of the estate within three months; to administer according to law and the will of the deceased all the personal estate, and the pro- ceeds of all real estate sold for the payment of debts and legacies ; and to render an account upon oath within one year, and at any other times when required by the courfc- The bond of a special administrator is conditioned to return an inventory within three months ; to account on oath for all the goods, chattels, debts, and effects of the deceased that shall be received by him as such special administrator, whenever required by the probate court; and to deliver the same to whoever shall be appointed 1 Gen. Sts. c. 94, § 2. APPOINTMENT OF ADMINISTRATOKS. 79 executor or administrator of the deceased, or to such otbei person as shall be lawfully entitled to receive the same.^ A public administrator may give a separate bond for every estate which he is called upon to administer, or he may give a general bond for the faithful administration of all estates on which administration is granted to him as public administrator. His separate bond is the same as that required of other original administrators, with the further condition, that if an executor or administrator is appointed as his successor in any case, to surrender his letters of administration into the probate court, with an account of his doings therein, and to pay over to his suc- cessor all property of the deceased not administered.^ His general bond is conditioned to return into the probate court, within three months from the time letters of administration are granted to him on the estate of any person deceased, a true inventory of the estate of such person ; to administer ac- cording to law the personal estate of such person, and the pro- ceeds of all real estate sold for payment of debts ; to render an account of his administration of every such estate within one year from the date of his letters of administration there- on, and at least once in each year until the trust is fulfilled, and at any other times when required by the probate court ; to pay the balance of every such estate remaining in his hands upon the settlement of his accounts to such persons as the probate court shall direct, and when such estate is fully administered to deposit the whole amount remaining in his hands with the treasurer of the Commonwealth ; to deliver the letters of administration on the estate of any per- son into the probate court, in case a will of such person is thereafter proved and allowed, and upon the appointment of a successor as administrator of any estate, to surrender his letters of administration, with an account on oath of his > Gen. Sts. c. 94, § 7. 2 Ibid. c. 95, § 6. 80 PROCEEDINGS IN THE PROBATE COURTS. doings, and upon a just settlement of his accounts to pay over to his successor all property of the deceased not administered.^ But any administrator may be exempted from giving bond for the proceeds of sales of real estate, except when authorized to make such sales.^ Upon the approval of the bond by the judge of the pro- bate court, letters of administration issue to the person appointed, who may forthwith proceed in the executioa-a of his trust unless an appeal is taken from the decree;- making the appointment. But a special administratoi;; may proceed notwithstanding an appeal is taken.^ 1 Gen. Sts. c. 95, § 7. 2 Ibid. c. 101, § 13. 3 Ibid. c. 94, § 6. CHAPTER VI. APPOINTMENT OF GUARDIANS. , The probate court in each county, when it appears neces- sary or convenient, may appoint guardians to minors and others being inhabitants of, or resident in, the same county, and to such as reside out of this State and have any estate within the same.^ OF MINORS. A father is the guardian by nature of his infant child ; and on his death, the mother; the natural guardian has custody of the infant's person, but cannot act in matters relating to the infant's estate. If therefore an infant ac- quires property by inheritance or otherwise, the appoint- ment of a guardian may be as necessary during the lifetime of the father as after his decease. If the minor is under the age of fourteen years, the pro- bate court may nominate and appoint his guardian. If he is above that age, he may nominate his own guardian, but his choice is not conclusive upon the court. If in the opin- ion of the court the person nominated is not suitable for the trust, the court will reject him ; and if the infant will not choose a proper person, the court will nominate and appoint a guardian. If the minor resides without the State, or, after being cited he neglects to nominate a suitable person, the court may appoint his guardian as if he were under the age of fourteen years.* The minor, for whom a guardian has been appointed, may, on his arrival at the age of fourteen years, nominate a 1 Gen. Sts. c. 109, § 1. > 2 Ibid. 109, § 2. _ 'tii,^" a 82 PROCEEDINGS IS THE PEOBATE COURTS. new guardian, but such nomination does not, as of right, vacate the appointment previously made. His choice will be sanctioned or not, as the discretion of the court shall direct. The guardian of a minor has the custody and tuition of his ward, and the care and management of all his estate; and, unless sooner discharged according to law, continues in office until the minor arrives at the age of twenty-one years. f But the father of the minor, if living, and in case of his death, the mothef,(while she remains unmarried^ they being respectively competent, to transact their own business, are entitled to the custody of the person of the minor and the care of his education.^ Who are suitable for the Trust. — A guardian, having the control of the estate of his ward, should possess the quali- fications necessary to its judicious management. The in- terests of the ward sometimes render necessary the sale of the estate, or portions of it, and a new investment of the proceeds ; a proper discharge of the trust in such cases can be best promoted by the appointment of a guardian of business experience. In case of the death of the minor's father, and the marriage or death of his mother, the guar- dian has the custody and tuition of his ward, and he should therefore be a person not indiflferent to the happiness of his ward, and competent .to direct his education. It is advisable, when practicable, that the guardianship be given to some person whose natural affection for the ward will prompt him to the faithful discharge of his trust, for it often occurs that the minor's sole security is in the affection, or the personal integrity, of his guardian, The sureties on a guardian's bond, though entirely sufficient at the time they sign it, may prove, when the minor arrives at full age — perhaps at end of ten or fifteen years — to be bankrupt as well as their principal ; and in such case, if the 1 Gen. Sts. c. 109, § 4. APPOINTMENT OF GUARDUNS. 83 guardian is dishonest, the minor is without remedy. The court can, of course, order the guardian to file a bond with new sureties at any time ; but it is sometimes the fact that the only person living who can be expected to interest himself in the welfare of the ward, is the guardian who is wronging him, and thus the insufficiency of the bond may not be brought to the notice of the court until it is too late. An administrator ought not, while he is engaged in the settlement of an estate, to be appointed guardian of a minor who is an heir to the same estate, unless there are decided personal reasons for the appointment. The two trusts are incompatible. It is the duty of the guardian to inspect the proceedings of the administrator, to examine his accounts, and to cause him to be cited if he is negligent in his admin- istration. It is obvious that these essential duties might not be discharged when both the administration and guardian- ship were in the hands of the same person. Testamentary Guardians. — A father by his last will in writing may appolht guardians for his children, whether born at the time of making the will or afterwards, to con- tinue during the minority of the child or a less time. Such testamentary guardian has the same powers, and performs the same duties with regard to the person and estate of the ward, as a guardian appointed by the probate court.^ But a testator can appoint a guardian for his own children only. He cannot appoint guardians for other children, although he gives them his property.® The Petition for the appointment of a minor under the age of fourteen years is usually made by the father or mother of the minor, if either of them are living ; if they are not living, by some relative or friend of the minor. If the petition is by any person other than a parent, the as- sent of the parents, or the survivor of them, to the appoint- 1 Gen. Sts. c. 109, § 5. 2 Gilbert v. Hebard, 8 Met. 127. 84 PROCEEDINGS IN THE PROBATE COURTS. raent prayed for should be indorsed on the petition. If both parents are dead, such assent may be given by the next of kin ; or if there are no known next of kin, by the persons, who have the care of the minor. When such assent is ex- pressed, the appointment prayed for is usually ^ade at once ; otherwise, a citation is issued to parties interested before any appointment is made. The petition should state the full name of the minor, the date of his birth, his resi- dence, the full name and last place of residence of his father, and the ground upon which the petitioner claims the ap- pointment.^ K the minor is above the age of fourteen years, he may appear in court and nominate his guardian, or he may make his nomination before a justice of the peace, or the city or town clerk. In such cases, the petition may be made by the person nominated by the minor, and a certificate of the fact of the nomination should be indorsed on the peti- tion by the justice or clerk before whom it is made.^ If the minor neglects to nominate a guardian, any person inter- ested may petition.* * OF INSANE PERSONS AND SPENDTHRIFTS. The probate court may appoint a guardian for an insaije person, and for a person who so wastes his property by ex- cessive drinking, gaming, idleness, or debauchery of any kind, as to expose himself or his family to want or suffer- ing, or any place to charge or expense for the support of himself or his family.* The application for the appointment of a guardian of an insane person may be made by the relations and friends of such person, or by the mayor and aldermen or selectmen of the city or town of which such person is an inhabitant or resident. 1 See Appendix, forms, Noa. 26-28. s Ibid, form No. 29. 3 Ibid, form No. 30. 4 Gen. Sts. c. 109, §§ 8, 9. APPOINTMENT OF GDARDUNS. 85 In the case of a spendthrift, the mayor and aldermen or selectmen of the city or town of which he is an inhabitant or resident, or upon which he is or may become chargeable, may complain to the probate court. The capacity in which the complainants act should be stated in the petition.^ In all cases, notice of not less than fourteen days is given to the supposed insane person or spendthrift of the time and place appointed for the hearing.^ The notice must be served in the manner directed by the court, and no appointment can be made until after due service of the no- tice. If the insane person has previously been under guar- dianship, and the office of guardian has in any way become vacant, notice must be giveh to him before a new guar- dian can be appointed ; and he is entitled to be heard upon the subject of the complaint in like manner as if he had not been under guardianship.^ At the time and place named in the citation the com- plainants and the supposed insane person or spendthrift will be heard. Acts of the person complained of at or near the time of makirig the complaint may be proved for the purpose of showing the state of his mind and his manner of life, but not his acts at a remote period. If after a full hearing it appears that the person complained of is unable to take care of himself by reason of insanity, or is so waste- ful of his property that a guardian is needed to protect his family or the public, a suitable person will be appointed. The guardian appointed should not only be a suitable person in a general sense, but as far as is practicable should 1 A copy of the complaint against a spendthrift, and of the order of notice thereon, may be filed in the registry of deeds for the county or district; and if a guardian is appointed on such complaint, all contracts, except for neces- saries, and all gifts, sales, and transfers of real or personal estate, made by the spendthrift after such filing of the complaint and order, and before the termination of the guardianship, will be void. Gen. Sts. c. 109, § 10. 2 Ibid. §§ 8, 9. 3 AUis v. Morton, 4 Gray, 63. 8 86 PKOCEEDINGS IN THE PROBATJi: COURTS. be fitted to dischargie the duties rendered necessary by the particular condition and necessities of the ward. It is not enough, in every case, that the guardian is faithful and competent to manage the ward's estate to advantage; he should be a person capable of exercising a proper influence and judicious control over his ward. The permanent im- provement and substantial welfare of the ward are the main objects of the guardianship ; and the guardian who has the care and custody of his person should be personally fitted, by his relations to the ward and otherwise, to promote these objects. In many cases, the determination of the question of suitability may be influenced by the wishes of the ward ; for a man may be so insane as to be a fit subject for guardi" anship, and yet have a sensible opinion and strong feeling as to the person to be placed over him ; and the reasonable' wishes of such a person should be consulted by the court. When a guardian is appointed for an insane person or spendthrift, the court makes an allowance, to be paid by the guardian, for all reasonable expenses incurred by the ward in defending himself against the complaint.^ Such guar- dian has the care and custody of -the person of his ward and the management of all his estate. He may be dis- charged by the probate court on the application of the ward or otherwise, when it appears that such guardianshij)^ is no longer necessary.^ " * OF PERSONS OUT OF THE STATE. A guardian may be appointed for a minor insane person or spendthrift residing out of this State, and having estate here, upon the petition of any friend of such person, or any- one interested in his estate, in expectancy or otherwise.{ The application may be made to the probate court of any county in which there is any estate of such absent person,' 1 Gen. Sts. c. 109, § 11. 2 Ibid. § 26. ■ 3 K the e.state of the person liable to be put under guardianship consists APPOINTMENT OF GUARDIANS. 87 and after such notice to all persons interested as the court shall order, a guardian will be appointed. Such guardian has the same powers and duties with respect to any estate of the ward found within this State, and also with respect to the person of the ward, if he comes to reside therein, as are prescribed to other guardians.^ OF MARRIED WOMEN. The recent statutes allowing married women to hold prop- erty to their own use free from the control of their husbands, rendered necessary some provisions for the care, of the sep- erate property of minor and insane married women. And it is now provided, that " when a married woman owns property, real or personal, a guardian may be appointed to her for the same causes, and in the same manner, and with the same powers and duties, as if she were sole, except as hereinafter provided. But no guardian shall be so appointed without such notice to her husband as the court may order. Such guardian shall not have the care, custody, or educa- tion of his ward, except in case of the insanity of her hus- band, or of his abandoning his wife by absenting himself from the State, and making no sufficient provision for her. Such guardian shall not apply the property of his ward to the maintenance of herself and family while she is mar- ried, unless authorized by the probate court on account of the inability of the husband suitably to maintain her or them, or for other cause which the court deems sufficient." ^ And when a married woman is by reason of insanity in- competent to release her right of dower or right of home- stead in her husband's lands, a guardian may be appointed for her in the same manner as if she were sole with the in part of personal property held in trust for him, the probate court of the county where the trustee resides has jurisdiction to appoint the guardian. Clarke v. Cordis, 4 Allen, 466. See Appendix, form No. 31. a Gen. Sts. c. 109, §§ 13, 14. 3 ibid. 108, §§ 16 — 18. 88 PROCEEDINGS IN THE PROBATE COURTS. powers and duties given to guardians of married women owning property, and the husband or any suitable person may be appointed.^ The petition for the appointment of a guardian of a mar- ried woman should be in the general form prescribed for petitions for guardians of minors and insane persons, as the case may be, and should particularly state the reasons for which the proposed guardianship is necessary. GUARDIAN'S BONDS. Every guardian of a minor appointed by the probate court is required to give bond, with surety or sureties to the judge of the probate court, in such sum as he shall order with condition : " To make a true inventory of all the real estate and all the goods, chattels, rights and credits, of the ward, that shall come to his possession or knowledge, and to return the same into the probate court at such time as the court shall order ; " To dispose of and manage all such estate and effects ac- cording to law and for the best interests of the ward, and faithfully to discharge his trust in relation thereto, and to the custody, education, and maintenance, of the ward ; " To render an account on oath of the property in his hands, including the proceeds of all real estate sold by him, and of the management and disposition of all such prop- erty, within one year after his appointment, and as often as once in three years thereafter, and at such other times as the probate court shall direct (but the guardian may be exempted by the probate court from giving bond for the proceeds of sales of real estate except when authorized to make such sales) ; " And at the expiration of his trust to settle his accounts 1 Gen. Sts. c. 108, § 19. APPOINTMENT OF GUARDIANS. 89 in the probate court, or with the ward or his legal represen- tatives ; and to pay over and deliver aU the estate and effects remaining in his hands or due from him on such settlement to the person or persons lawfully entitled thereto." ^ A testamentary guardian gives bond with the same con- dition as if appointed by the court, except that when the testator has ordered or required in his will that a bond be not given, it is not required, unless from a change in the situation and circumstances of the guardian, or for other sufficient cause the probate court deems it proper to require it.2 The condition of the bond given by the guardian of an insane person or spendthrift is the same as that given by the guardian of a minor, except that the provisions relating to the education of the ward are omitted.^ The condition of the bond given by the guardian of a per- son without the State is the same as is required when the ward lives within the State, except that the provisions re- specting the inventory, the disposal of the estate and effects, and the account to be rendered, are confined to such estate and effects as come to his hands in this State ; and the pro- visions respecting the custody of the ward are not applica- ble, unless he comes to reside within this State.* Upon the approval of his bond by the judge of the pro- bate court, the guardian receives his letter of guardianship, and has full authority to proceed in the discharge of his trust. 1 Gen. Sts. c. 109, § 16. 8 Ibid. § 6. 3 Ibid. § 12. 4 Ibid. § 15. 8* CHAPTER VII. APPOINTMENT OF TRUSTEES — TKUSTS. IN WHAT CASES TKU8TEE8 MAY BE APPOINTED. If in a will the testator has omitted to appoint a trastee in this Commonwealth, and if such appointment is neces- sary to carry into effect the provisions of the wiU, the probate court may, after ilotice to all persons interestedj appoint a trustee who shall have the same powers, rights, and duties, and in whom the estate shall vest in like man- ner as if he had been originally appointed by the testator? And when a trustee under a written instrument declines, resigns, dies, or is removed before the objects thereof are accomplished, if no adequate provision is made therein fof supplying the vacancy, the probate court, after notice to ■ aU persons interested, may appoint a new trustee to act alone or jointly with the others, as the case may be.^ Such new trustee, upon giving the bonds and security required,' has the same powers, rights, and duties, whether as a sole or joint trustee, as if he had been originally appointed ; and the trust estate vests in him in like manner as it had or would have vested in the trustee in whose place he is sub- stituted ; and the court may order such conveyances to be made by the former trustee or his representatives, or by 1 Gen. Sts. c. 100, § 7. 2 H. devised property to H. and R., their heirs and assigns, and the survivor of them, upon certain trusts. K. died before the trusts were fullf executed. Held, that it was the duty of the probate court, under Rev. Sts. c. 69, § 8 (Gen. Sts. c. 100, § 9), the will being silent on the subject, to ap- point a co-trustee to act with the survivor. Dixon v. Homer, 12 Cush. 41. APPOINTMENT OF TRUSTEES. 91 the other remaining trustee, as may be proper or convenient to ve§t in him, either alone or jointly with the others, the trust estate.^ The probate court may appoint a trustee to receive and hold the amount paid for damages sustained by the laying out, alteration, or discontinuance of a highway, in cases in which the claimants have different interests in the property taken and are incapacitated by legal disability from choos- ing a trustee, or cannot agree upon a choice.^ If a trustee holding funds, bequeathed to a city or town for any charitable, religious, or educational purpose, neglects to make an annual exhibit of the condition of such funds as required by law, or is incapable of discharging the trust, or unsuitable to manage the affairs of the same, the probate court may remove him and supply the vacancy.^ A widow who waives the provision made for her in the will of her husband, thereby becomes entitled to such por- tion of his estate as she would have been entitled to if he had died intestate ; provided however, that if the share of the personal estate to which she thus becomes entitled exceeds the sum of ten thousand dollars, she receives that sum in her own right, and is entitled to the income only of the excess of said share above the sum of ten thousand dollars during her natural life. In such case, upon appli- cation by the widow or any one interested in the estate, the judge of probate may appoint one or more trustees to receive, hold, and manage such excess during her natural life.4 FORMAL PROCEEDINGS. A trustee appointed by will should petition the probate court for a confirmation of his appointment. The petition should state in general terms the nature of the trust, the 1 Gen. Sts. c. 100, §§ 9, 10. 2 Gen. Sts. c. 43, §§ 17, 18. 3 Gen. Sts. c. 31, §§ 9, 10. ■» Sts. 1861, c. 164. 92 PROCEEDINGS IN THE PROBATE COURTS. manner in which it was created, and the willingness of the petitioner to accept the trust and give the bond required. K the appointment is necessary in consequence of a vacancy in the office of trustee, the petition should set forth the fact, and state in what way the vacancy was occasioned, whether by the omission of the testator to make an appointment, or by the resignation or death of a former trustee, or otherwise.^ Any person interested in a trust estate may petition for the appointment of a trustee. A citation to parties inter- ested will be ordered before an appointment is made, unless their written assent is given to the prayer of the petition. TRUSTEES' BONDS. Bonds of Testamentary Trustees. Every trustee under a will, unless exempted, is required before entering upon the duties of his trust, to give bond with sufficient surety or sureties to the judge of the probate court for the county in which the wiU was proved, with condition to make a true inventory of all the estate belonging to him as trustee, and which shall come to his possession or knowledge, and to return the same into the probate court at such time as the court directs ; to dispose of and manage all such estate and effects, and faithfully discharge his trust in relation thereto; according to law and the will of the testator ; to render ah account on oath of the property in his hands, and of the management and disposition thereof, within one year and at any other times when required by the probate court; and at the expiration of his trust, to settle his accounts with the probate court, and pay over and deliver all the estate and effects remaining in his hands or due from him on such settlement, to the person or persons entitled thereto, according to law and the will of the testator.^ 1 See Appendix, forms Nos. 32, 34. a Gen. Sts. c. 100, § 1. APPOINTMENT OF TRUSTEES. 93 A testamentary trustee is exempted from giving bond when the testator in the will appointing him has so or- dered or requested, unless from a change in his situation or circumstances the court deems it proper to require a bond; he is also exempted when all persons interested in the trust fund, being of full age and legal capacity, certify to the court their consent that such bond shall not be re- quired.i Such certificate should be filed with the petition. Trustees appointed by the Probate Court, under a will, are required before entering upon the duties of the trust to give bond with the same condition as that given by testamentary . trustees ; except that the court may dispense with the mak- ing and returning of an inventory by a new trustee when it appears unnecessary, in which case the condition of the bond is altered accordingly. Trustees may be exempted from giving bond for the proceeds of sales of real estate, except when authorized to make such sales. Every trustee under a will who neglects to give bond within such time as the probate court allows, is considered as having declined the trust.^ A trustee may be required to give a new bond either when the sureties or the penal sum in his bond are insufficient, or when a surety in his bond is discharged from further responsibility by the court ; and, if he does not give such new bond within the time ordered by the court, will be removed.^ • A trustee appointed under a deed is not required to give bond unless provision is made therefor in the instrument; and the bond, if one is required, must be framed and con- ditioned in conformity to the terms of the deed. 1 Gen. Sts. e. 100, § 2. The order or request of the testator need not be in express words. If it can be gathered from the whole will it is suf- ficient. "Lowell, appellant, 22 Pick. 215. 2 Gen. Sts. 0. 100, § 4. 3 ibid. c. 101, §§ 15, 16, 17. 94 PROCEEDINGS IN THE PROBATE COURTS. A trustee appointed by the probate court to receive and hold money paid for damages sustained by the laying out, alteration, or discontinuance of a highway, is required to give a bond to the judge, conditioned for the faithful per- formance of his duties.^ , S.VLE, INVESTMENT, &c. OF PERSONAL ESTATE HELD IN TRUST. " The probate courts, in the several counties, and the supreme judicial court, may, on application of the trustee under a vdll, or of any person interested in the trust estate, after notice to aU other persons interested therein, authorize or require such trustee to sell any personal estate or effects held by him in trust, and invest the proceeds and any other trust money in his hands, in real estate or in any other man- ner most for the interest of all concerned therein ; and said courts may from time to time give such further directions as the case may require for managing, investing, and dis- posing of, the trust fund, subject to the provisions of the will." 2 Upon such application for the sale of any trust estate, "if it shall appear to the court that said estate or any remainder or interest therein may be held in trust for, or be devised or limited over to, persons not in being, notice of such proceedings shall be given to persons who may be parents of such persons in such manner as the court shall order. The court in such case shall appoint a suitable and competent person to appear and act as the next friend of such persons in such proceedings, the cost of whose appearance and services, including compensation of counsel, to be determined by the court, shall be paid as the court may order, either out of the trust estate or by the persons commencing said proceedings, in which latter case execution may issue therefor in the name of the. person appointed. Any order or decree made in any such pro- 1 Gen. Sts. c. 43, § 18. 2 Gen. Sts. c. 100, § 14. APPOINTMENT OF TRUSTEES. 95 ceedings, and any sale or transfer of property thereunder, shall be conclusive upon all persons for whom such prop- erty or any remainder or interest therein is held in trust or to whom the same is devised or limited over, in the same manner as if they had been in being and appeared and answered in the case or assented to the order or decree." ^ Under these provisions of the statute the trustee, in case of a difference of opinion between him and the persons in- terested in the estate in regard to the disposition to be made of the property in his hands, may protect himself by obtaining the direction of the court. And if the trustee should neglect to apply for the direction of the court, any person interested in the trust estate may make the applica- tion. It may happen that some particular disposition of the funds may be unsafe or improper, and such as the courts would not have sanctioned on a previous applica- tion, and yet it may not be such as to make the trustee liable as foK misconduct in the discharge of his trust. In such a case, the loss or damage that would otherwise result may be prevented by an application to the court on the part of some person interested in the estate. The application, whether made by the trustee or by a person interested in the estate, should state all the facts of the particular case, and pray for the direction of the court. Applications for the sale of real estate held in trust should be made to the supreme judicial court. TERMINATION OF CERTAIN TRUSTS. The statute provides that when it appears, upon petition or otherwise, to the probate court of the county where let- ters testamentary or of administration have been granted on 1 Sts. 1863, c. 25. 96 PROCEEDINGS IN THE PEOBATE COURTS. the estate of a person deceased, that such person in his lifetime made a conveyance of his real estate in this State in trust for the benefit of his creditors, and the trustee cer- tifies that all the debts secured thereby (due to other persons than himself) have been paid, or otherwise adjusted to the satisfaction of the creditors so far as known, and that he is desirous to settle his trust account and terminate the trust, the court shall appoint a time and place for hearing all per- sons interested therein ; notice of which shall be given by advertisement in some newspaper printed in the county or otherwise as the court may order. Upon such hearing the court may terminate the trust so far as the creditors and persons claiming under them are concerned, and discharge such real estate therefrom; and may settle the trust account, and make any further order as to the disposition, distribu- tion, or partition of the remaining trust estate, not in- consistent with the provisions of the original instrument creating the trust. This provision does not apply to any case where the instrument creating the trust does not bear date more than six years previous to the time appointed for , the hearing; nor can it affect the operation of the insolvent laws.^ GENERAL EQUITY JURISDICTION. The prooate courts in the several counties, concurrently with the supreme judicial court, have general equity powers in all matters relating to trusts created by will.^ 1 Gen Sts. c. 100, §§ 17, 18. 2 Ibid. § 22. CHAPTER VIII. REMOVAL AND EESIGNATION OF EXECUTORS AND OTHERS. A8 TO REMOVALS. If an executor, administrator, guardian, or trustee, who may be required by the probate court to give a new bond, does not comply with the order within the time fixed by the court, he will be removed and some other person appointed in his stead ;^ and if he become insane, or otherwise inca- pable of discharging his trust, or for any reason " evidently unsuitable " therefor, he may be removed, notice having first been given to him and to all parties interested.^ An executor or other officer appointed by the probate court may be incapacitated by physical debility, want of memory, or any infirmity which prevents the efiicient per- formance of his trust ; and he may be evidently unsuitable because of his personal relations to the estate, either by reason of his being indebted to it, or of the interest he has under the will of his testator, or his situation as an heir at law, or because the prosecution of his individual claims against the estate would conflict with his official duties, or for other reasons. The statute does not enumerate any causes of un suitability, but gives the court a broad discre- tion to include the various cases that may arise.^ The relation existing between a guardian and his ward, may require, for the proper discharge of its obligations, other 1 Gen. Sts. c. 101, § 17. 2 Ibid. § 2 ; c. 100, § 8 ; c. 109, § 24. 3 Thayer v. Homer, 11 Met. 104; Winship v. Bass, 12 Mass. 200; New- comb V. Williams, 9 Met. 538; Bichards v. Sweetland, 6 Cush. 324; An- drews V. Tucker, 7 Pick. 250 ; Wildridge v. Patterson, 15 Mass. 148. 9 98 PROCEEDINGS IN THE PROBATE COURTS. than merely business qualifications ; and the guardian may be unsuitable for the care and custody of the person of the ward, although no question be made of his integrity, disin- terestedness, or general ability. The guardian of a person non compos mentis should be especially fitted for his trust, and in determining the question of personal suitableness the peculiar condition, interests, and necessities of the ward must be considered. It is not enough, in every case, for the guardian to supply the material wants of his ward. It is his duty to make use of every available means to promote the ward's welfare, improvement, and happiness, With every disposition to discharge his obligations thor- oughly and conscientiously, he may be, from various causes, incapable of exercising the beneficial influence over his ward that might be exerted by another. The continuance of the relation of guardian and ward under such circumstances, might materially interfere with the permanent improvement and general welfare of the ward, and thus defeat the main object of the guardianship. Whenever, from any cause, the , guardian becomes unable to perform any important and substantial part of the duties of his office, he is liable to be removed as " evidently unsuitable." When an executor or administrator residing out of this State, having been duly cited by the probate court, neglects to render his accounts and settle the estate, he may be re- moved.-' If the executor or administrator neglects to settle his accounts within six months after the return of the in- solvent commissioners, or the final liquidation of the de- mands of the creditors, or within such further time as the court shall allow, he may be forthwith removed.^ Any unfaithful administration which will sustain an ac- tion on the bond of an executor or other officer appointed by the probate court, is sufficient cause for his removal.^ I Gen. Sts. c. 101, § 2. a Ibid. c. 99", § 26. 3 It is no cause for the removal of an adminbtrator that he declines to EEMOTAL AND RESIGNATION OF EXECUTORS, &c. 99 A- trustee may be removed on the application of the par- ties beneficially interested in the trust estate, if it appears that his removal is essential to their interests.^ A trustee who holds funds bequeathed to a city or town for any charitable, religious, or educational purpose, may be removed by the probate court for neglect to make the an- nual exhibit of the condition of such funds as required by law, or for incapacity or unsuitability.^ The person applying for the removal of an executor or other officer should set forth in his petition the particular fact of neglect or other maladministration which renders the removal proper ; ^ and the burden of proof is upon him to sustain the allegations in his petition. In all cases, the person whose removal is asked for is entitled to notice, and to an opportunity to show cause why the removal should not be made. At the hearing, both the petitioner and the respondent may offer any evidence pertinent to the issue; and either party may appeal from the decree of the co\;urt making, or refusing to make, the removal. The removal of a trustee who holds funds bequeathed to a city or town for a charitable, religious, or educational pur- pose, must be on the petition of five persons.* In all other cases any person interested in the trust estate may petition. When an executor or administrator is removed, or letters of administration are revoked, all previous sales, whether of real or personal estate, made lawfully by him and with inventory, or commence proceedings to recover for the benefit of the heirs, certain real estate formerly belonging to the deceased, but which had been set off on an execution against him in his lifetime issued upon a judgment alleged by the heirs to have been recovered by the fraud of the plaintiff. Eichards v. Sweetland, 6 Cush. 324. But otherwise, when creditors of an insolvent estate request the administrator to inventory real estate fraudn- lantly conveyed by the intestate offering to indemnify him, and he refuses. Andrews b. Tucker, 7 Pick. 250. 1 Gen. Sts. c. 100, § 8. 2 Ibid. c. 31, § 10. 3 See Appendix, form No. 35. * Gen. Sts. c. 31, § 10. 100 PROCEEDINGS IN THE PROBATE COURTS. good faith on the part of the purchaser, and all other lawfu. acts done by such executor or administrator, remain valid and effectual.^ Upon the request of an executor, administrator, guardian, or trustee, the probate court may in its discretion allow him to resign his trust.^ The executor or other officer applying for leave to resign, should present to the court with his petition a just and true account of his administration. Un- til his accounts are settled, after such notice to the parties interested as the circumstances of the case require, his request will not be allowed.^ If, after the granting of letters of administration as of an intestate estate, a will of the deceased is duly proved and allowed, the first administration will be revoked.* When an unmarried woman who is executrix, adminis- tratrix, or guardian marries, her Aarriage extinguishes her authority. If there was another executor, administrator, or gujirdian appointed jointly with her, he may proceed in discharging the trust alone ; otherwise the court may ap- point a successor, or make such other order in the premises as the case requires.^ The guardian of an insane person or spendthrift may be ■discharged by the probate court on the application of the ward or otherwise, when it appears that such guardianship is no longer necessary.^ Such application of the ward may be resisted by the guardian; and all reasonable expenses incurred by him in good faith for the purpose of a proper inquiry into the condition of the ward, will be allowed to him in the settlement of his guardianship account.' 1 Gen. Sts. c. 101, § 3. » Ibid. § 5 ; c. 109, § 24 ; c. 100, § 5. 3 See Appendix, form No. 37. * Gen. Sts. c. 94, § 5. 5 Ibid. c. 101, § 4 ; c. 109, § 25. 6 Ibid. c. 109, § 26. See Appendix, form No. 39. 7. Palmer v. Palmer, 1 Chandler (N. H.), 448. CHAPTER IX. INVENTORIES, AND THE COLLECTION OF THE EFFECTS OF DE- CEASED PERSONS AND WARDS. The bonds of executors, administrators, guardians, and trustees contain a condition that the party giving the bond shall return into the probate court a true inventory of all the estate that shall come to his possession or knowledge. Exceptions to this rule are made in favor of executors who are residuary legatees, who elect to give a bpnd for the pay- ment of the debts and legacies, and run their own risk as to the sufficiency of assets ; ^ and in favor of a trustee ap- pointed in place of a former trustee who has deceased or has been removed, or has resigned, if the court deems an inventory unnecessary.^ Every executor and administrator is required to return an inventory within three months after his appointment;' and every guardian and trustee within such time as the court may direct.* The inventory is equally an advantage to the executor, or other trust officer, and to the heirs, creditors, or other persons interested in the estate. It is the basis upon which he is to make his accounts. It shows the amount for which he is chargeable, and limits his responsibility, unless there are assets not appraised that come to his hands. On the other part, the heirs or other persons interested have, in the record of the inventory the best evidence that can be had under the circumstances, of the value of the estate in the hands of the trustee; and it furnishes them with essential evi- 1 Gen. Sts. c. 93, § 3. Ante, page 62. 2 ibid. c. 100, § 11. 3 Ibid. c. 96, § 1. 4 Ibid. c. 100, § 1; c. 109, § 17. 9* 102 PROCEEDINGS IN THE PROBATE COURTS. dence in case it becomes necessary»to institute proceedings against him, on account of any misappropriation of the property or other maladministration. The inventory should include all the real estate,^ and all the goods, chattels, rights, and credits belonging to the estate appraised.^ All notes and accounts due to the es- tate should be described in the inventory. The appraisers may find it difficult to appraise a note or account, except as its face indicates its value, and for this reason many administrators deem it unnecessary to include either notes or accounts in their inventory, and consider it sufficient to charge themselves with the proceeds of the debts col- lected in their accounts of administration. This course, if pursued in good faith, can work no wrong, but it does not fulfil all the purposes of the law requiring an inven- tory to be made. The administrator, moreover, cannot be prejudiced by the mention of notes and accounts in the inventory, even if they prove to be worthless, for if they remain uncollected without his fault, a credit, correspondiag 1 It is not the duty of an administrator at the request, and for the benefit of the hdrs of his intestate, to inventory, or institute proceedings to recover certain real estate which once belonged to the intestate, but which has been set oflf on an execution issued against him on a judgment obtained by fraud. Kichards v. Sweetland, 6 Cush. 324 ; otherwise, when the pro- ceeds of land fraudulently conveyed is needed for the payment of debts due from the estate. Andrews v. Tucker, 7 Pick. 250. If there was any specific personal property in the hands of the testator belonging to others, which he held in trust or otherwise, it is not assets in the hands of his exe- cutors, but is to be held by the executors as the testator himself held it. But if the testator has money or other property in his hands belonging to others, whether in trust or otherwise, and it has no ear-mark, and is not dis- tinguishable from the mass of his own property, the party owning it must come in as a general creditor, and it falls within the description of assets of the executor. Trecothick v. Austin, 4 Mason, 29. 8 Corn or other product of the soil, raised annually by cultivation, and in a proper state to be gathered, is personal estate, and goes to the executor on the death of the owner. Penhallow v. Dwight, 7 Mass. 84. INVENTORIES, &c. 103 in amount with the appraised value of the worthless debt; will be allowed him in his account.^ Orders for the appraisal of Estates are issued by the probate court. The appraisers must be three suitable disin- terested persons.^ No clerk or other person employed in the office of the probate court can be an appraiser in any case within the jurisdiction of the court unless his appoint- ment is requested by all parties in interest.^ The authority of appraisers appointed by the probate court extends to the appraisal of property situated in any part of the State. The order of appraisal is usually issued on the day when the executor or other officer is appointed and upon his verbal request. Any disinterested justice of the peace may appoint ap- praisers of any part of the estate which may be in his county.* Oath of Appraisers. Before proceeding to appraise the estate the appraisers must be sworn to the faithful discharge of their duties. The oath may be administered by any justice of the peace, and a certificate thereof must be in- dorsed on the order by the justice who administers the oath. Return of the Inventory. The value of each parcel of real estate and of each article of personal property should be separately stated in the inventory. The blanks attached to the orders of appraisal indicate the form in which the return is to be made. If the deceased had been a member of a copartnership, and both partnership estate and separate estate have come to the possession of the executor, such partnership estate should be separately appraised and returned in a separate list. The estates of two or more minors under guardianship 1 Gen. Sts. e. 98, § 6. a Ibid. c. 96, § 2. 3 Ibid. c. 117, § 32. 4 Ibid. c. 96, § 2. See Appendix, form No. 41. 104 PROCEEDINGS IN THE PROBATE OODRTS. of the same person should be returned in separate sched- > ules, if the minors are interested in different property, or have unequal interests in the same property. The inventory, when completed by the appraisers, is de- livered to the executor or other person having charge of the estate appraised, who returns it to the probate office for rec- ord. He is required to make oath that it is a true and perfect inventory of all the estate that has come to his possession, or knowledge. The oath may be administered by the judge or register of probate, in or out of court, or by any justice of the peace ; and a certificate of the oath must be made on the inventory by the officer who administers it, and re- corded with the inventory. An administrator is bound' to return only one inventory, i If additional property comes to his hands, he is bound to account for it, but not to inventory it.^ COLLECTION OF THE EFFECTS. It is not only the duty of the executor or administrator to point out to the appraisers the estate that has come to his possession or knowledge, but to take such measures as may be necessary for the collection of debts due the de- ceased, and for the recovery of any money, goods, effects, or other estate in the fraudulent possession of other persons. The statute provides a process for the discovery of facts, by an examination in the probate court, .which may be advan- tageously used as a preliminary step to the institution of a suit for the recovery of property fraudulently withheld from the estate. The statute provides that, " Upon complaint made to the probate court by an exec- utor, administrator, heir, legatee, creditor, or other person interested in the estate of a person deceased, against any person suspected of having fraudulently received, concealed, embezzled, or conveyed away, any money, goods, effects, 1 Hooker v. Bancroft. 4 Pick. 50. INVENTORIES, &o. 105 or other estate, real or personal, of the deceased, the court may cite such suspected person, though he is executor or administrator, to appear and be examined on oath, upon the matter of the complaint. If the person so cited refuses to appear and submit to examination, or to answer such inter- rogatories as are lawfully propounded to him, the court may commit him to the jail, there to remain in close custody until he submits to the order of the court.^ The interroga- tories and answers shall be in writing, signed by the party examined, and filed in the probate court." Like proceedings may be had upon complaint of a guar- dian, ward, creditor, or other person interested in the estate of a ward, or having claims thereto in expectancy as heir or otherwise, against any one suspected of having fraudulently concealed, embezzled, or conveyed away any of the estate of the ward. The suspected person may be cited, though he is the guardian.* The authority given to the probate court by the above provisions, extends only to an examination for the purpose of discovery. No other power is given. The examination is not to be controlled by other evidence ; nor can relief be directly granted upon it by any decree of the probate court. The process can only result in a disclosure of facts to serve as, the basis of other proceedings.^ 1 Gen. Sts. c. 96, § 6. See Appendix, forms 42, 43. 2 Ibid. c. 109, § 30. 3 Selectmen of Boston v. Boylston, 4 Mass. 322. The lapse of thirty- years siiice the transactions inquired into, is no bar to such examination. O'Dee V. McCrate, 7 Greenl. 467. In a complaint to the judge of probate, for embezzlement of the estate of a person deceased, the complainant having described himself as " ad- ministrator and creditor," and it appearing that he was not entitled to act as administrator, it was held that the words " administrator and " were ma- terial, and could not be rejected as surplusage. Arnold v. Sabin, 4 Gush. 46 ; Milner v. Leishman, 12 Met. 320. CHAPTER X. ALLOWANCES TO WIDOWS, MINOR CHILDREN, AND OTHERS. TO WIDOWS AND MINOR CHILDREN. " The articles of apparel and ornament of the widow and minor children of a deceased person, shall belong to them respectively. Such parts of the personal estate of a person deceased ag the probate court, having regard to all the circumstances of the case, may allow^as necessaries to his widow, for herself and family under her care, or if there is no widow, to his minor children, not exceeding fifty dollars to any child ; and also such provisions and other articles as are necessary for the reasonable sustenance of his family, and the use of his house and the furniture therein, for forty days after his death, shall not be taken as assets for the payment of debts, lega- cies, or charges of administration.^ " A widow may remain in the house of her husband forty days after his death without being chargeable with rent." ^ The statute thus makes the apparel and ornaments of the widow and minor children of a deceased person their abso' lute property, and secures to them a home in his house for forty days after his death, with such provisions and other articles as are necessary for their reasonable sustenance; and in addition to this statute allowance for the forty days, the widow or minor children of the deceased, whether he was a housekeeper or not, are entitled to an allowance for necessaries, when their circumstances require it, from his personal estate. The power of the probate court to make J Gen. Sts. c. 96, §§ 4, 5. 2 Ibid. c. 90, § 18. ALLOWANCES TO WIDOWS, MINOR CHILDPvEN, &c. 107 allowances is not limited to intestate estates. It is given in aU cases, provided there are personal assets from which the allowance can be made. An allowance may be granted, although provision was made for the widow by her hus- band's will, in lieu of dower and accepted by her, although the executor, being also residuary legatee, has given bond as such to pay the debts and legacies.^ And the widow may have a second allowance at any time before the per- sonal estate is exhausted.^ The amount to be allowed the widow is determined by the court in its discretion. There is no rule to regulate this discretion, and no rule could be framed to meet the great variety of circumstances upon which the allowance depends. The amount is not ordinarily restricted to a sum merely suf- ficient for the necessaries of life, nor on the other hand is. it to be increased to an extent inconsistent with the object of the allowance. The allowance is intended to furnish the widow, when she is left in distress by the decease of her husband, with necessaries for her support for a reasonable time, within which she can make arrangements for her own support. It is not intended to furnish her with a capital for business purposes, or to establish a fund from which a per- manent income may be derived. Any and all facts bearing upon the question of her necessities are to be considered, such as the amount of her separate property and means ; ^ the fact that she is accustomed to earn her own support, or the contrary ; that she is disabled by age, or otherwise ; the number of her children and the fact of their tender age, &c. The value of the estate, as shown by the inventory and by additional evidence, is to be regarded. It may he that the personal estate has been materially diminished by gifts made by the deceased, shortly before his death, to his heirs and others, while the new duties and obligations imposed I Williams v. Williams, 5 Gray, 24. a Hale v. Hale, 1 Gray, 518. ,3 HoUenbeck v. Pixley, 3 Gray, 521. lOS PKOCEEDIKGS IN THE PKOBATE COURTS. upon the widow are not lessened by such diminution. la such case the fact that such gifts have been made, may be important to show the actual condition of the estate and of the family. But facts as to the sum contributed by her on her marriage, to her husband's estate, or as to the value of the services rendered to him and his family, while they may show that she is equitably entitled to a considerable share of his estate, do not bear upon the question actually at issue, the allowance not being made to correct an injustice, but to provide for her necessities.^ The whole of the personal estate may be given to the widow as an allowance, when the amount is not so great as to be extravagant.^ She is entitled to a reasonable allow- ance, even if the estate is insolvent ; and she is entitled to the amount of her allowance in priority to the payment of her husband's debts, expenses of his last sickness and funeral, and the charges of settling his estate.^ Upon the petition of the widow or children, or either of them, the probate court may, after notice to all parties interested, make a reasonable allowance out of the income of the estate, real or personal, in the hands of a special ad- ministrator appointed on account of the pendency of a suit concerning the probate of a will, as an advancement for their support, not exceeding such portion of the income of the estate as they would be entitled to whether the will is finally proved or not. An appeal from the decree concern- ing such allowance, will not prevent the payment of the sum decreed if the petitioner gives bond to the special ad- ministrator, with sureties approved by the judge, conditioned to repay the same if the decree is reversed.* In all other cases the allowance is made from the personal 1 Adams v. Adams, 10 Met. 170 ; Hollenbeek v. Pixley, 3 Gray, 526. z Brazer v. Dean, 15 Mass. 183. 3 Kingsbury v. Wilmarth, 2 Allen, 310. 4 Gen. Sts. c. 94, §§ 9, 10. ALLOWANCES TO WIDOWS, MINOR CHILDREN, &c. 109 property. It cannot be made from the proceeds of real estate sold for the payment of debts, for the surplus of such proceeds, if any, is required by statute to be treated as real estate, and disposed of among the same persons and in the same proportions as the real estate would have been if it had not been sold.^ The petition for an allowance to the widow or minor children sets forth the fact that there are personal assets belonging to the estate in question from which she or they are entitled to an allowance, and prays that an allowance may be decreed accordingly. When the next of kin of the deceased are other than his minor children, notice of the widow's petition is usually given to parties interested be- fore a decree is made. The widow, or any person aggrieved by the decree of the court upon her petition, may appeal to the supreme court of probate ; and the appeal, except when the allowance is made from the income of the estate in the hands of a special administrator, stays aU proceedings under the decree until the matter is determined by the supreme court of probate. The allowance to the widow for necessaries is not to be confounded with her distributive share of her husband's es- tate. That is a vested right of property which she takes by a title as high as that of a child or other next of kin ; and it goes to her personal representative.^ But the provision for necessaries is temporary in its nature and personal in its character, and confers no absolute or contingent right of property which can survive her. If therefore an appeal is taken from a decree making an allowance, and she dies be- fore the appeal is entered in the appellate court, all further proceedings are stayed; and the decree of the probate court, which was vacated by the appeal, cannot be revived.^ 1 Gen. Sts. c. 102, § 44 ; Hale v. Hale, 1 Gray, 523 ; Haven v., Foster, 9 Pick. 130. a Foster v. Fifield, 20 Pick. 67. 3 Adams v. Adams, 10 Met. 170. 10 110 PROCEEDINGS IN THE PROBATE COURTS. ALLOWANCES TO WIVES OF INSAi™ PERSONS UNDER GUARDIAN- SHIP. The statute provides that the probate court for the county in which the guardian of an insane person was appointed, may make an allowance out of the estate of such insane person for the support of his wife, to be paid to her by the guardian during the continuance of the guardianship in such manner as the court shall direct.^ Eesort is not often had to proceedings under this pro- vision of the statute. It is the duty of the guardian to provide for the support of the ward and his family, so far as the ward's estate is sufficient therefor, without any order of the court. The amount proper to be expended, for their support can generally be determined by agreement between the parties interested. It is only when the guardian neg- lects his duty in this respect that the wife has occasion to apply to the court for an allowance. The allowance under this provision is not limited merely to necessaries for the wife. It is intended for her support, and the amount of the allowance must be proportioned to the condition and circumstances of the husband. It should be sufficient for her support in a manner consistent with th^t prudent use and management of his estate. The order of the court fixing the amount of the allow-. ance may also direct the guardian as to the time and man- ner of its payment to the wife.^ 1 Stat. 1862, c. 116. 8 See Appendix, form No. 44. CHAPTER XI. SALE OF PERSONAL ESTATE BY EXECUTORS AND OTHERS.— INVESTMENTS BY GUARDIANS AND TRUSTEES. — COMPROMISE OF CLAIMS. The statute provides that " the probate court, on applica- tion made by the executor, administrator, or any person in- terested in the estate, after the return of the inventory, may order any part or all of the personal estate to be sold by public auction or private sale, as shall be deemed most for the interest of all concerned ; and the executor or adminis- I trator shall account therefor at the price for which it sells," ^ The personal property is generally sold by executors and administrators without any previous order of the court, and if they act in good faith and with sound discretion, the in- terests of no person concerned can be injuriously affected by such proceeding. The subsequent approval of the court is practically equivalent to a previous order. The executor or administrator, however, makes a sale without first obtaining license at his own risk, and when it is probable that the property cannot be sold for its appraised value, hf should apply to the court for leave to make the sale, and thereby limit his responsibility to account. Mortgages of land and the debt secured thereby are per- sonal estate in the hands of the administrator, and so are lands taken on execution for a debt due the testator or in- testate; and real estate so held in mortgage or taken on execution, may be sold, subject to the right of redemption, 1 Gen. Sts. c. 98, § 3. Guardians account for and dispose of the personal estate of their wards in like manner as executors and administrators. Ibid, c. 109, §17. 112 PROCEEDINGS IN THE PROBATE COURTS. at any time before the right of redemption is foreclosed, in the same manner as personal estate of a person deceased.^ The probate court upon petition of the executor or ad- ministrator, and after such notice thereof to the parties in- terested as the court may order, and a hearing thereon, may for the purpose of closing the settlement of an estate, license the executor or administrator to sell and assign any out- standing debts, claims, and assets which cannot be collected, received, or determined without inconvenient delay. The petition for leave to make such sale or assignment should set forth the nature of the debt, claim, or asset to be sold, and the reasons for the proposed sale.^ The sale is required to be conducted in such manner as the court, having regard as far as it may be thought advisable or prudent to the law in relation to sales of real estate by executors and adminis- trators, shall order. This provision for the sale of debts and clEiims does not deprive executors and administrators of the right to transfer at pleasure deeds of mortgage, and the real estate conveyed and the debts secured thereby.* Probate courts may authorize executors, administrators,, guardians, and trustees, to release and discharge, upon such: terms and conditions as appear proper,, any vested, contin- gent, or possible right or interest belonging to the persons or estates by them represented in or to any real or personat estate, whenever it appears to be for the benefit of the per- sons or estates in trust.* Notice of the application in such cases must be given as in cases of sale of real estate.^ SALES AND INVESTMENTS BY GUARDIANS AND TRUSTEES. The probate court, on the application of a guardian or any person interested in the estate of a ward, after notice to all other persons interested therein, may authorize or require .1 Gen. Sts. c. 96, §§ 9, 12. 2 See Appendix, form No. 46. 3 Gen. Sts. c. 98, §§ 4, 5. * Ibid. c. 101, § 11. s Stat. 1863, c. 230. ARBITRATION AND COMPKOJIISE. 113 the guardian to sell and transfer any stock in the public funds, or in any corporation, or any other personal estate or effects held by him as guardian, and invest the proceeds thereof and all other moneys in his hands in rial estate, or in any other manner that shall be most for the interest of all concerned. The court may make such further order and gfve such directions as the case may require, for managing, investing, and disposing of the estate and effects in the hand^ of the guardian.^ And on the application of a trus- tee under a will or of any person interested in the trust estate, the . court may authorize or require such trustee to sell any personal estate or effects held by him in trust, and invest the proceeds and any other trust money in his hands in real estate, or in any other manner most for the interest of all concerned therein. And the court may from time to time give such further directions as the case may require for managing, investing, and disposing of the trust fund, subject to the provisions of the wiO.^ The guardian, trustee, or other person applying for an order of the court for such investment should represent in his petition that the proposed investment will be for the benefit of all parties interested, and should describe the per- sonal estate, if any, to be sold, and the property in which it is proposed to invest the proceeds or the money in the hands of the guardian or trustee.^ ADJUSTMENT OF DEMANDS BY ARBITRATION OR COMPROMISE. Probate courts may authorize executors, administrators, guardians, and trustees, to adjust by arbitration or compro- mise, any demands in favor of or against the estates by them represented.* The executor or other officer who is desirous of so adjusting a claim should present a petition to the court setting forth the nature of the demand, and 1 Gen. Sts. c. 109, § 22. 2 Ante, page 94. 3 See Appendix, form No. 48. . i Gen. Sts. c. 101, § 10. 10* 114 PROCEEDINGS IN THE PROBATE COURTS. representing that it can be adjusted by arbitration or com- promise, and that the interests of the estate represented by him will be promoted thereby.^ Any adjustment by arbi- tration or compromise without leave of the court first ob- tained, would be at the risk of the executor or other person making it, and might give rise to questions upon the settle- ment of his accounts in the probate court. • Controversies between different claimants to the estate in the hands of executors, administrators, guardians, and trus- tees may be settled by arbitration or compromise upon' application to the supreme judicial court.^ I See Appendix, form No. 50. a Stat. .1861, c. 174, § 1. CHAPTER XII. NOTICE OF THE APPOINTMENT OF EXECftjTORS. &c., AND PAYMENT OF DEBTS AND LEGACIES. The statute provides that " every executor and adminis- trator, within three months after giving bond for the dis- charge of his trust, shall cause notice of his appointment to be posted in two or more public places in the city or town in which the deceased last dwelt; or he may be re- quired by the probate court to give notice by publishing in some newspaper, or in such other manner as the court, taking into consideration the business of the deceased and the circumstances of his estate, shall direct." ' The letter testamentary or of administration, issued to the executor or administrator, directs the manner in which the notice is to be given in each case. A strict compliance with the terms of the order is necessary, in connection with the^ payment of debts, to protect the interests of the heirs or devisees as well as of the executor or administrator. Unless the notice is given, the statute limiting the time within which suits may be brought against the executor or administrator will not apply. The notice having been given, the statute provides a sure and convenient mode of perpetuating evidence of the fact. An affidavit of the executor or administrator, or of the per- son employed by him to give such notice, being made before the judge or a justice of the peace, and filed and recorded with a copy of the notice in the probate office, within one year after giving bond, or at any time afterwards by permission of the court upon petition of the executor or administrator, 1 Gen. Sts. c. 97, § 1. 116 PROCEEDINGS IN THE PROBATE COURTS. and satisfactory evidence furnished that the notice was given as ordered, is made evidence by statute, of the time, place, and manner in which the notice was given.^ The fact, that notice was duly given may 'be proved whenever it becomes material by other evidence ; but questions as to the fact of notice may not be raised until after the lapse of sev- eral years, when it may be difficult and perhaps impossible for the executor or administrator to show his compliance with the order of the court by any of the ordinary means of proof. The affidavit should therefore be made and re- corded in every case. If by accident or mistake notice is not given, or the evi- dence is not so perpetuated, the probate court, on the peti- tion of the executor or administrator, may order such notice to be given at any time afterwards; in which case,. the periods of time limited for the commencement of actions against executors and administrators and for other purposes, and which begin to run from the date of the administration bond, will run respectively from the time of passing such order. And no such order will exempt the executor or ad- ministrator from any liability for damages incurred by rea- son of his omission to give notice within the three months.^ PAYMENT OF DEBTS. Limitation of Actions against Executors and Administrators. No executor or administrator, after having given notice of his appointment, as required by law, can be held to an- swer to the suit of any creditor of the deceased, unless it is commenced within two years from the time of his giving bond, except when new assets come to his hand after the ex- piration of the two years, in which case he is liable to an action if brought within one year after the creditor has notice of the receipt of such new assets, and within two years after the same is actually received. And if an actioa 1 Gen. Sts. c. 97, § 2. 2 Ibid. §§ 3, 4. NOTICE OF APPOINTMENT OF EXECUTORS, &c. 117 reasonably commenced fails of a sufficient service or return by unavoidable accident ; or when the writ in such action is abated or defeated for a defect in its form, or by a mistake in the form of the proceeding, or when after verdict for the plaintiff judgment is arrested; or if a judgment for the plaintiff is reversed on a writ of error, the plaintiff may commence a new action for the same cause at any time within one year after the abatement or other determination of the original suit, or after the reversal of the judgment therein.^ Special administrators are not liable to actions by any creditor of the deceased ; and the time of limitation for all suits against the estate begins to run after the issue of let- ters testamentary or of administration in the usual form, in like manner as if such special administration had not been granted.^ In the case of a public administrator who has given a general bond covering all estates on which administration is granted to him, the limitation begins to run, as to each estate, from the date of letters of administration.^ A new administrator appointed on the death, resignation, 1 Gen. Sts. c. 97, §§ 5, 6, 7. Bigelow v. Bemis, 2 Allen, 496. An exec- utor is not liable as such, after the expiration. of two years from the time of his giving bond to an action on a covenant of warranty in a deed from his testator, although the covenant is not broken until after the expiration of the two years ; and although the executor is also residuary devisee or lega- tee, and gives bond for the payment of the testator's debts and legacies, and takes the assets to himself without filing an inventory. Holden v. Fletcher, 6 Cush. 235. An action on a decree of the probate court for the payment of a balance due from the estate of a deceased guardian to his ward is barred by statute 1852, c. 294, (Gen. Sts. c. 97, § 5,) in two years from the appointment of the guardian's administrator, although the decree was not obtained until the two years had expired. Bemis v. Bemis, 13 Gray, 559. Creditors whose claims were not presented within the time limited by law may recover judgment by bill in equity. Sts. 1861, c. 174, § 2 ; 1863, c. 235 ; Garfield v. Bemis, 2 Allen, 445. 8 Gen. Sts. c. 94, § 13. 3 Ibid. c. 95, § 9. 118 PEOCEEDINGS IN THE PROBATE COURTS. or removal of an executor or administrator, is liable to the actions of creditors for two years after he gives bond, unless the same were barred under the previous administration. K he fails to give notice of his appointment in the manner prescribed for original administrators, he will have no bene- fit of the statute limitation. If new assets come to hia hands after the expiration of the two years, he is liable on account of such new assets, in Eke manner as an oiigiaaL executor or administrator.' Proceeding when the Creditor's Right of Action accrues after the two years. A further exception to the rule limiting actions against executors and administrators to two years after giving bond, is made by the statute in favor of a cred- itor whose right of action does not accrue within the two years. A creditor holding such a claim should present a full statement of it in writing to the probate court with a petition for such an order relative thereto as the law pro- vides. And the court, if it appears on examination that the claim is justly due from the estate, will order the executor to retain in his hands sufficient to, satisfy it ; or, if a person interested in the estate offers to give bond to the alleged creditor with sufficient surety or sureties for the payment of the demand in case it is proved to be due, the court may order such bond to be taken instead of requiring assets to be retained.2 The decision of the probate court upon the claim of such creditor is not conclusive against the executor or administra- tor, or other person interested to oppose the allowance there- of; and they cannot be compelled to pay the same unless it is proved to be due in an action commenced by the claim- ant within one year after it becomes payable.^ If the claim 1 Gen. Sts. c. 97, §§ 12,13, 14. 2 Ibid. § 8. See Appendix, forms Nos. 52-54. 3 Gen. Sts. c. 97, § 9. " The action shall be brought against the execu- tor or administrator, if he has been required to retain assets therefor ; other- NOTICE OF APPOINTMENT OF EXECUTORS, &c. 119 was not presented to the probate court, or, if presented, was not allowed, the creditor may, by action commenced within one year after his right of action accrues, recover the same against the heirs and next of kin of the deceased, and the devisees and legatees under his will, each one of whom is liable to the creditor to an amount not exceeding the value of the estate that he received from the deceased, unless the will of the deceased makes other provision for the payment of his debts.^ When Executors, Sec, may pay Debts without Personal Lia- bility. No executor or administrator can be held to answer to a suit of a creditor of the deceased, if commenced within one year after he gives bond, unless it is on a demand that would not be affected by the insolvency of the estate, or is brought after the estate has been represented insolvent for the purpose of ascertaining a contested claim. And if, within the year ^after giving notice of his appointment, he does not have notice of demands against the estate, which will authorize him to represent it insolvent, he may proceed to pay the debts due, without any personal liability on that account to any creditor who shall not have_given notice of his claim, although the estate remaining should prove insuf- ficient to pay the whole.^ PAYMENT OF LEGACIES. The probate court has no jurisdiction of the questions to ■wise upon the bond given by the persons interested in the estate. If the action is brought on the bond, the plaintiff shall set forth his original cause of action against the deceased, in like manner as would be required in a declaration for the same demand against executors and administrators, and may allege the non-payment thereof as a breach of the condition of the bond ; and the defendant may answer any matter of defence that would be available in law against the demand if prosecuted in the usual manner against the executor or administrator." Gen. Sts. c. 97, §§ 10, 11. 1 Ibid. § 15, c. 101, § 32. 2 Gen. Sts. c. 97, §§ 16, 17. As to the payment of debts when the estate is insolvent, see post, c. xiii. 120 PROCEEDINGS IN THE PROBATE COURTS. whom, or at what time, a legacy is to be paid. The exec- utor pays the legacies under the authority given him by the will of the deceased. The rule adopted by the courts, bor- rowed from the civil law, requires legacies to be paid, when the will prescribes no time for their payment, after the ex- piration of one year from the testator's death, it being pre- sumed that the executor will be able to inform himself during the year, of the sufficiency or insufficiency of the estate to meet the demands upon it. As a general rule, interest is allowed to legatees after the expiration of the year, and the amount due is to be stated by making annual rests.^ ■If the executor has given the notice of his appointment required by law, he will be secure against the demands of creditors at the end of two years after the approval of his bond; and if an executor, or administrator with the will annexed, within the two years, is required by a legatee to pay the whole or part of his legacy, the probate court may protect him in making such payments, by requiring such legatee to first give bond to the executor or administrator with surety or sureties to be approved by the court, condi- tioned to refund the amount to be paid, or so much thereof as may be necessary to satisfy any demands that may be afterwards recovered against the estate of the deceased, and to indemnify the executor or administrator against all loss or damage on account of such payment.^ 1 Miller v. Congdon, 14 Gray, 114. * Gen. Sts. c. 97, § 21. See Appendix, form No. 55. V- -\}^Sh^^^ CHAPTER XIII. INSOLVENT ESTATES OF DECEASED PERSONS. •* When the estate of a person deceased is insolvent or insufficient to pay all his debts, it shall, after discharging the necessary expenses of his funeral, last sickness, and ad- ministration, be applied to the payment of his debts in the following order : — " First. Debts entitled to a preference under the laws of the United States; " Second. Public rates, taxes, and excise duties ; " Third. Debts due to all other persons. " If there is not enough to pay all the debts of any class, the creditors of that class shall be paid ratably upon their respective debts ; and no payment shall be made to credi- tors of any class until all those of the preceding class or classes, of whose claims the executor or administrator has notice, are fully paid." ^ THE REPRESENTATION OF INSOLVENCY. If the estate is insolvent it is the duty of the executor or administrator to represent the fact to the probate court. His neglect to do so may make him personally liable to credi- tors of the deceased. He is allowed ample time to satisfy himself as to the condition of the estate. He is not held lia- ble to answer to the suit of any creditor commenced within one year after he gives bond for the faithful discharge of his trust, unless the demand. is one that would not be affected by the insolvency of the estate, or is brought after the estate has been represented insolvent for the purpose of ascertain- 1 Gen. Sts. c. 99, § 1. 11 122 PROCEEDINGS IN THE PROBATE COURTS. ing a contested claim.^ If, within one year after giving notice of his appointment, he does not have notice of de- mands which will authorize him to represent the estate insolvent, he may proceed to pay the debts due from the estate ; and he will not be personally liable to any creditor in consequence of payments made before notice of his de- mand. If he so pays away the whole of the estate before notice of the demand of any other creditor, he is not re- quired in consequence of such notice to represent the estate insolvent, but may plead that he has fully administered, and be discharged on proving such payments.^ Or, if any effects remain, and such remainder is insufficient to satisfy a de- mand of which he afterwards has notice, he is liable to pay only so much as may then remain ; if there are two or more such demands, which together exceed the amount of assets remaining, he may then represent the estate insolvent and pay over the amount in his hands to such persons as the court shall order ; but creditors who have been previously paid cannot be required to refund any part of the amount received by them.^ 1 Gen. Sts. c. 97, § 16. But he is accountable for money paid on debts ■within the year, though without the knowledge that the estate was in- solvent. Cobb V. Muzzey, 13 Gray, 57. 2 Ibid. §§ 17, 18 ; Gushing v. Field, 9 Met. 180. It is no bar to an ac- tion against an administrator, on a debt of his intestate, that he gave due notice of his appointment, and had no notice within a year thereafter of demands against the estate which would authorize him to represent it in- solvent, and applied in payment of the debts of the deceased all the personal and a sufficient portion of the real estate to pay the debts then ascertained ; and that theheirs at the same time sold all the residue of the real estate; and the administrator rendered his final account which was allowed. The statute applies only when the whole of the estate has been exhausted. Hildreth v. Marshall, 7 Gray, 167. 3 Ibid. § 19 ; Colgrove v. Robinson, 11 Met. 238. This provision of the statute applies to payments made after the expiration of the year. If the executor, within a year after giving notice of his appointment, pays a debt of his intestate, he may, if the estale afterwards proves insolvent, recover INSOLVENT EST.iTES OF DECEASED PERSONS. 123 The executor or administrator is not to wait until the claims of creditors are proved at the law before he makes his representation of insolvency. He may believe that there is a good defence against a claim that is presented to him ; but if its recovery would cause insolvency, he should repre- sent the estate insolvent. If he suffers judgment to be recovered against him before he represents the estate insol- vent, he must pay the full amount of the judgment, without regard to the amount of assets in his hands. And if, on demand made upon him to pay such judgment, or to show property of the deceased to be taken in execution, he neg- lects or refuses so to do, he and his sureties are liable on his administration bond to a suit by the judgment creditor, although the estate is in fact insolvent. Having had full opportunity to ascertain the condition of the estate, and having allowed the claim to be prosecuted to final judg- ment without interfering by a representation of insolvency, the law will presume that he has the means in his hands to satisfy it.' If it appears, upon the settlement of the administration account in the probate court, that the whole estate which has come to the hands of the executor has been exhausted in paying debts preferred by law, such settlement, the atat- of the creditor the excess of the sum so paid over the amount awarded to the creditor by commissioners of insolvency. Heard v. Drake, 4 Gray, 51^. See Bascomb v. Butterfield, 1 Met. 536. But the executor may by his own act defeat his right to recover. An exe- cutor requested H. who was indebted to the estate to procure a note against his testator held by M., and promised to allow the same in part payment of H's debt. H. procured the note for a full consideration, without M's in- dorsement, and the executor took it as he had agreed to do. The estate proved to be insolvent, and it was held, that the executor could not recover of H. the difference between the amount of the note and the dividend upon it, on the ground that the negotiation with M. was at the executor's request; and he could not be permitted to throw the loss on H. Austin v. Henshaw, 7 Pick. 46. 1 Newcomb v. Goss, 1 Met. 333. 124 PROCEEDINGS IN THE PROBATE COURTS. ute provides, shall be a sufficient bar to any action brought against the executor or administrator by a creditor who is not entitled to such preference, although the estate has not been represented insolvent.^ But the executor or ad minis- trator who undertakes to pay the preferred claims without first making a representation of insolvency, must pay them strictly in the order prescribed by statute. The assets may not be sufficient to pay all the preferred debts, and in such case the several classes of creditors must be paid in their order. Taxes, for instance, cannot be paid until the two an- terior classes of creditors have been fully satisfied ; and if the assets are not sufficient to pay all the debts of any one class, the creditors of that class must be paid ratably. It seems that an executor who is residuary legatee, and who has given bond to pay the debts and legacies, cannot repre- sent the estate insolvent — the bond is a conclusive admis- sion of sufficient assets.^ The representation of insolvency must be addressed to the probate court in the county in which the executor or ad- ministrator was appointed, and should set forth the amount of the indebtedness of the estate, so far as it can be ascer- tained, (including the funeral expenses, charges of adminis- tration, and the allowance if any, made to the widow or minor children,) and the amount of the assets in the hands of the executor or administrator. There should also be filed a list of the claims against the estate, showing the name of each creditor and the sum claimed by each. If the evidence of the fact of insolvency is satisfactory, the court will ap- . point two or more fit persons to be commissioners to receive and examine the claims of creditors.^ 1 Gen. Sts. c. 97, § 20. 3 Alger V. Colwell, 2 Gray, 404 ; Jones v. Richardson, 5 Met. 247. 3 Where a judge of probate had rejected a representation of insolvency made by an administrator, and upon a second application which the admin- istrator offered to support by legal evidence, again refused to receive it) , INSOLVENT ESTATES OF DECEASED PERSONS. 125 TIME ALLOWED FOE PROOF OF CLAIMS. Six months are allowed after the appointment of the commissioners for the creditors to present and prove their claims ; and the court will allow such further time for the proof of debts, not exceeding eighteen months from the date of the commission, as may be deemed necessary.^ Such further time may be applied for in writing by any creditor who has not proved his claim. The application should fully set forth the reasons for which it is made. The com- mission may be reopened at any time within the eighteen months, although the return of the commissioners may have been made to the probate court ; and the party applying for such extension may appeal from a decree of the court deny- ing the prayer of his petition.^ The commissioners have no authority to allow claims after the expiration of the time limited in the commission or fixed by the couiTt.^ PROOF OF CLAIMS. The warrant issued to the commissioners contains in- structions for their formal proceedings. They must first be sworn to faithfully discharge the duties of their office. The oath may be administered by any justice of the peace, and a certificate thereof should be made by him on the warrant, giving his former decision as a reason for the second denial, and an appeal was taken, he was directed t» receive the evidence and thereupon to de- cree according to the law and the justice of the case, Buciinam v. Phelps, 6 Mass. 448. 1 Gen. Sts. c. 99, § 4. Stat. 1863, c. 217, provides that when, during the pendency of an appeal from the commissioners on an insolvent estate, it appears to the probate court that a just and equitable distribution of the estate requires that further time shall be allowed for proof of claims, the court may allow further time for that purpose, notwithstanding the limita- tion made by Gen. Sts. c. 99, § 4 ; provided that such further time shall not in any ease extend more than one month beyond the final decision of the appeal then pending. 2 Walker i: Lyman's Adms. 6 Pic'k. 458. See Appendix, form No. 56. 3 Basconib y. Butterfield, 1 Met. 536. 11* 126 PROCEEDINGS IN THE PROBATE COURTS. to be returned with their report. They are required to ap. point convenient times and places for their meetings to re- ceive and examine claims, and to give at least seven days' written notice of the time and place of each meeting, by mail or otherwise, to all known creditors of the deceased, and such other notice, by publishing in some newspaper or otherwise, as the court may order.^ The executor or admin- istrator is required to furnish them, fourteen days at least before their first meeting, the names and residences of all known creditors. The commissioners hold as many, meet- ings, within the six months, as are necessary for the com- plete discharge of the trust committed to them. If the. office of commissioner becomes vacant by reason of death, resignation, or otherwise, the probate court may fill the vacancy.^ The commissioners may require any claimant to make true answers, under oath, to all questions relating to his claim, and if he refuses to take such oath, or to answer fully t all questions, they may disallow his claim. Either of the? commissioners may administer such oath to the claimants and witnesses.^ The commissioners are to liquidate and balance all mu- tual demands subsisting between the deceased insolveht and his creditors. If the balance is found in favor of the creditor it should be allowed by the commissioners and in-' eluded in their report; but if the balance is found to be against the creditor, it is not a subject of their report, whicb^: is to include claims against the estate only.* ^ 1 See Appendix, form No. 58. 2 Stat. 1863, c. 217, § 2. ;; 3 Gen. Sts. c. 99, §§ 15, 16. * When the defendant in a suit brought by the administrator of an insol-: •vent estate files in set-oflf a claim larger than that on which he is sued, he is entitled to judgment for the balance, and need not present his claim to the commissioners. The judgment is to be presented to the judge of probate and by him added to the claims allowed by the commissioners. Bigelow "■ INSOLVENT ESTATES OF DECEASED PERSONS. 127 Copartnership debts for which the deceased was liable may be proved against his estate.^ A claim payable abso- lutely may be proved before its maturity.^ A creditor whose claim is secured, or partly secured by mortgage or otherwise, cannot prove his fuU claim before the commissioners unless he first surrenders his security for the benefit of the estate. But he may be allowed the bal- ance of his claim remaining after deducting the value of the security. Such value may be determined by agreement between the creditor and executor, or by a sale of the secur- ity, or it may be estimated by the commissioners.^ Interest is to be allowed on all claims expressly bearing interest, and upon claims not expressly bearing interest where there is evidence establishing the creditor's right to receive interest. Upon claims not bearing interest and not matured a rebate of interest is to be made. The common practice is to compute this allowance and rebate of interest to the date of the death of the intestate. Except in very rare cases, it is immaterial whether the interest stops at the Folger, 2 Met. 255. In such suit the defendant may set off a note which falls due pending the suit, though not due when the action was commenced. Ibid. 1 A stipulation in partnership articles that in case of the decease of either partner the business may be carried on for one year by the survivor for the mutual benefit of both parties, does not, in case of the death of one partner, justify the allowance against his insolvent estate of a debt contracted by the survivor within the year, with one who had notice of the death. Stanwood 17. Owen, 14 Gray, 195. Payments made by the.surviving partner while car- rying on the partnership business pursuant to such stipulation, upon an ac- count some items of which were contracted before, and some after the death of the other partner, must be applied to the discharge of the first items. Ibid. A surviving partner may prove a claim against the estate of his deceased partner. Sparhawk v. Kussell, 10 Met. 307. 2 Haverhill Loan & Fund Ass. v. Cronin, 4 Allen, 144. 3 Farnum v. Boutelle, 13 Met. 159; Hooker v. Olmstead, 6 Pick. 481 ; Middlesex Bank v. Minot, 4 Met. 325 ; Haverhill Loan & Fund Ass. v. Cronin, 4 Allen, 144. 128 PROCEEDINGS IN THE PROBATE COURTS. death of the debtor or at a later day in the settlement of the estate, inasmuch as the proportion in which the assets are distributed among the creditors will be the same by either mode of computation. The main object is to fix upon some date to which the affairs of the deceased shall be adjusted* But cases have occurred where the assets have proved more than sufficient to pay the debts as they existed at the time of the death of the insolvent, but not sufficient to pay them with interest computed to the time of the decree of distri- bution. In such cases, and whenever the equitable distribui tion of the assets requires it, the court will add interest on the claims allowed to the time of distribution.^ It is the duty of the executor or administrator to oppose the allowance of all claims improperly presented to the commissioners. If he is guilty of corrupt conduct in not opposing the allowance of illegal claims, he will be liable to an action on his bond.^ He should be present at the meet- ings of the commissioners, and should take an appeal from their decision whenever an appeal is necessary to proteo^ the rights of persons interested in the estate. i The claim of an executor or administrator against the estate which he administers should be presented for allowance to the probate court, not to the commissioners. RETURN OF THE COMMISSIONERS. At the expuration of the time limited for the proof of claims the commissioners make their return to the probate court.^ Their return must give a list of all the claims pre- 1 Williams v. American Bank, 4 Met. 317. 3 Parsons v. Mills, 2 Mass. 80. S It is the duty of the commissioners to make their own return to the probate court. It is no part of the official duty of the administrator to re- ceive the report of the commissioners and carry or send it to the judge of probate; if he receives the report and undertakes to return it, this is merely a personal engagement for the performance of which the sureties in 1m bond are not bound. Nelson v. Woodbury, 1 Greenl. 251. INSOLVENT ESTATES OF DECEASED PERSONS. 129 sented to them, whether allowed or not, with the sum al- lowed on each, stated in separate classes, as follows : first, debts entitled to a preference under the laws of the United States; second, public rates, taxes, and excise duties; third, debts due to all other persons. Debts proved against the deceased as a member of a partnership firm must be stated in a separate list. If the executor or administrator has settled his accounts in the probate court, the final distribution of the balance in his hands may be ordered after the expiratipn of thirty days from the return of the commissioners, and the settlement of the estate completed, unless there are contingent debts which could not be proved before the commissioners, or unless an appeal is taken from some decision of the com- missioners. PROVISIONS AS TO CONTINGENT CLABIS. The statute provides that " if at the return of the com- mission any person is liable as a surety for the deceased, or has any other contingent claim' against his estate which could not be proved as a debt under the commission, the court upon proof thereof shall, in ordering a dividend, leave in the hands of the executor or administrator a sum suffi- cient to pay to such contingent creditor a proportion equal to what shall then be paid to the other creditors. If such contingent debt becomes absolute within four years from the date of the administration bond, it may be allowed by the probate court if not disputed by the executor or adminis- trator ; and if disputed, it may be proved before the commis- sioners already appointed or others to be appointed by the judge, in like manner as if presented before the first return of the commissioners. Upon the allowance of such claim, the creditor shall be .entitled to a dividend thereon equal to what has been paid to the other creditors, so far as the same can be paid without disturbing the former dividend ; and if 130 PROCEEDINGS IN THE PROBATE COURTS. his claim is not finally established, or if the dividend due to him does not exhaust the assets in the hands of the ex- ecutor or administrator, the residue of the assets shall be divided among all creditors who have proved their debts." ' These provisions of the statute apply only to cases where the claim is one that could not be proved as a debt under the coriimission. The surety on a promissory note made by the deceased which has been proved against the estate ay the person holding it, cannot have such a contingent claim. His claim against the estate could have been proved by him. He could have paid the holder, made the note his own property, and proved it as his own claim. Moreover, the holder who proved the note will take the entire dividend allowed upon it, and the claim, so far as the insolvent estate is concerned, will be extinguished by the dividend paid to him. The surety cannot also take a dividend on the same debt. The statute refers to cases where the holder of the debt cannot, from some cause, prove his debt under the commission, or where the surety cannot make the debt his own by payment.^ APPEALS FROM DECISIONS OF THE COMMISSIONERS. The determination of the commissioners is not necessarilj conclusive in any case. Any person whose claim is disal- lowed in whole or in part, and any executor or administrator who is dissatisfied with the allowance of a claim, may appeal from their decision, and the claim will thereupon be determined at common law in the county in which the pro- bate or administration was granted. The appeal is not taken from any order of the probate court, but from the decision of the commissioners. If the demand exceeds the sam of three thousand dollars in the county of Suffolk, or one thousand dollars in any other county, the appeal is taken to the supreme judicial court; otherwise to the su- 1 Gen. Sts. c. 99, §§ 5, 6, 7. 2 Cummingg v. Thompson, 7 Met. 132. INSOLVENT ESTATES OF DECEASED PERSONS. 131 • perior court.^ The appeal must be claimed and notice thereof given at the probate office within thirty days after the return of the Commissioners.^ If the appeal is by an executor or adttiinistrator he must give notice thereof to the creditor v^ithin said thirty days.^ The appeal must be en- tered at the court appealed to held next after the expiration of the thirty days. At the term of court at which the appeal is entered, the supposed creditor must file a statement in writing of his claim, setting forth briefly and distinctly all the material facts which would be necessary in a declaration for the same cause of action ; and like proceedings are thereupon had in the pleadings, trial, and determination of the cause, as in an action at law prosecuted in the usual manner, except that no execution is awarded against the executor for a debt found due to the claimant. The final judgment is con- clusive, and the list of debts allowed by the commissioners will be altered if necessary to conform thereto.* The party prevailing upon the appeal is entitled to costs, which, if recovered against the executor or administrator, may be allowed to him in his administration account.^ The statute provides that any person whose claim is dis- allowed by the commissioners, and who for other cause than his own neglect omits to claim or prosecute his appeal as above stated, may, by petitioning the supreme judicial court holden in any county, be allowed to claim and prosecute his appeal upon such terms as the court shall impose, if it 1 Gen. Sts. c. 99, § 8 ; Waters v. Randall, 8 Met. 132. 2 Gen. Sts. c. 99, § 9. When the time for proof of claims is extended, an appeal from a decision of the commissioners disallowing the claim of a sreditor may be filed within thirty days after their final return, though suet claim was presented and disallowed before the first return of the warrant. IVferriam v. Leonard, 6 Cush. 151. 3 Gen. Sts. c. 99, § 9. See Appendix, forms Nos. 59, 60. < Gen. Sts. e. 99, § 10. 5 ibid. § 12. 132 PROCEEDINGS IN THE PROBATE COURTS. appears that justice requires a further examination of his claim ; but such petition must be presented within two years after the date of the administration bond.^ The pe- tition in suph case should set forth particularly the nature of the claim and the reason of the petitioner's omission to reasonably claim and prosecute his appeal. The allowance of such appeal cannot disturb any distrib- ution ordered before notice of the petition, or notice of the intention to present the same has been given in writing at the probate office, or to the executor or administrator ; but the debts thus proved and allowed are paid only out of such assets as remain in or come to the hands of the executor or administrator after payment of the sums due on such prior decree of distribution.^ The party who intends to petition for leave to prosecute his appeal should therefore give im- mediate notice at the probate office, or to the executor, of his intention to present the same. The effect of such notice, if distribution has not already been ordered, may be to ma- terially increase the amount of his dividend. WAIVER OF APPEAL AND ARBITRATION. After the claiming of an appeal from a decision of the commissioners, the parties may waive a trial at law and submit the claim to the determination of arbitrators to be agreed on between them, and appointed accordingly by a rule of the probate court. The report of such arbitrators, if accepted by the court, will be conclusive in like manner as a judgment.* The executor and the creditor, if they agree to submit the claim to arbitration, should join in a written representa- tion of the fact to the court, and state therein the names of the arbitrators agreed upon.* The arbitrators must notify 1 Gen. Sts. c. 99, § 13 ; Cross v. Cross, 7 Met. 211. 2 Gen. Sts. c. 99, § 14. 3 Ibid. § 11. * See Appendix, form Nos. 61-64. INSOLVENT ESTATES OF DECEASED PERSONS. 133 the parties of the time and place fixed for the hearing, and after the hearing return to the court their award, with the rule and any papers issued therewith. They should also return a certificate of the costs of the arbitration. The arbitrators have no power to award that the claimant is in fact indebted to the estate. They are to find only what amount, if any, is due from the estate to the claimant.^ DISTRIBUTION OF INSOLVENT ESTATES. After the expiration of thirty days from the return of the commissioners, the probate court decrees the distribution of the assets in the hands of the executor among the creditors whose claims have been allowed. If before making the decree the court has notice of an appeal from the commis- sioners, then claimed or pending, the decree may be sus- pended untU the determination of the appeal, or a distribu- tion may be ordered among the creditors whose debts are allowed, leaving in the executor's hands a sum sufficient to pay the claimant whose demand is disputed a portion equal to that of the other creditors. If the whole assets are not distributed upon the first decree, or if further assets come to the hands of the executor or administrator, the probate court will make such further decrees for distribution as the case requires.^ No final distribution can be made until the accounts of the executor or administrator are settled in the probate court, and the sum to be distributed thereby ascertained. His accounts should be settled at the earliest day practi- cable after the return of the commissioners is made, and he may be liable on his bond for neglect in this particular. The statute provides that if an executor or administrator neglects to render and settle his accounts in the probate court within six months after the return made by the com- 1 Gilmore !). Hubbard, 12 Cush. 220. « Gen. Sts. c. 99, § 19 ; White v. Swain, 3 Pick. 365. 12 J.34 PROCEEDINGS IN THE PROBATE COURTS. missioners, or the final liquidation of the demands of the creditors, or within sueh further time as the court shaU allow, such ijeglect shall be deemed unfaithful administra- tion, and he may be forthwith removed, and shall be liable in 9. suit on his bond, for all damages occasioned by his default.! In making the distribution, the preferred creditors, if the assets are sufficient, are paid in full, in the order required by statute. If there is not enough to pay all the debts of any one class, the creditors of that class are paid ratably upon their respective debts. The balance remaining after the payment of the preferred claims is distributed ratably among the other creditors. K the deceased had been a member of a copartnership, and died in possession of both separate and partnership estate, and was indebted as a partner as well as on private account, his partnership debts are payable from the partnership estate and his separate debts from hi? separate estate. If there is a balance of the separate estate after the payment of his separate debts," it is added to the joint stock for the payment of the joint creditors. If there is a balance of the joint stock after the payment of the joint debts, it is divided among the separate estates of the partners according to their respective interests therein, as it would have been if the partnership had been (Jlssolvpd without insolvency ; and the sum so appropriated to the separate estate of each partner is applied to the pay- ment of his separate debts.^ The order of distribution directs the executor or adminis- trator to pay the balance in his hands to the persons named in the order, and specifies the sum to which each is entitled. He is also directed to give notice to each creditor of the amount of his dividend, and if any of the sums which be 1 Gen. Sts. c. 99, § 26. - a Gen. Sts. c. 99, § 18 ; c. 118, § 109 ; Howe v. Lawrence, 9 Cash. 553 Fall Kiver Whaling Go. v. Borden, 10 Gush. 458. INSOLVENT ESTATES OF DECEASED PERSONS. 135 is ordered to pay remain for six months unclaimed, to de- posit the same in a savings bank (designated in the order) in the name of the judge of probate for the time being, to accumulate for the benefit of the person entitled thereto.^ When the executor or administrator has paid over or deposited the money in his hands as required by the decree of distribution, he may perpetuate the evidence thereof by presenting to the probate court, within one year after the decree was made, an account of such payments, which be- ing proved to the satisfaction of the court and verified by the oath of the party, is allowed as his final discharge. He may conveniently make such account by returning the orig- inal decree, with the receipts of the several creditors and the certificates of deposit annexed thereto, together with his own certificate that the several payments have been made as ordered. After twenty years from the decree of distribution of an insolvent estate, the probate court, on application of any creditor whose claim was proved and allowed, and after notice of such application published for not less than two years on such days as the court shall direct, in one or more newspapers of the county, may order any unclaimed divi- dends with the interest received thereon, after deducting all expenses and charges of administration since the decree of distribution, to be distributed anew among the creditors who have received their dividends. If there is a surplus after satisfying the claims of such creditors with interest, it will be distributed to the heirs of the deceased.^ ACTIONS BY CREDITOKS AFTEK THE EEPEESENTATION OF INSOLVENCY. After the representation of insolvency and the appoint- 1 When the person entitled to the money deposited satisfies the judge of his right to receive the same, the judge causes it to be paid over and trans- ferred to him. Gen. Sts. e. 101, § 9. See Appendix, forms No. 73-74. 2 Gen. Sts. c. 99, § 27, 136 PROCEEDINGS IN THE PROBATE COURTS. ment of commissioners, the law will not permit any of the assets of the estate to be taken from the executor or admin- istrator by legal process, to satisfy the demand of any cred- itor, until the question of insolvency is determined. No action can be maintained unless for a demand entitled to a preference, or unless the assets prove more than sufficient tp pay all the debts allowed by the commissioners. If the estate, is represented insolvent while an action is pending for any demand not entitled to such preference, the action can be discdntinued without payment of costs ; or, if the de- mand is disputed, the action may be tried and determined, and judgment rendered thereon, in the same manner and with the same effect as in the case of an appeal from the award of commissioners ; or the action may be continued without costs until it appears whether the estate is insol- vent, and, if not insolvent, the plaintiff may prosecute the action as if no such representation had been made.^ RECOVERY OF CLAIMS NOT PROVED BEFORE THE COMMISSIONERS. Every creditor of an insolvent estate who does not pre- sent his claim for allowance will be barred from recovering it, unless further assets come to the hands of the executor or administrator after the decree of distribution; in such case his claim may be proved and paid in the manner and with the limitations provided for contingent debts.^ When such further assets come to the estate, the probate court, on application of such creditor, may open the commission. The creditor's petition must aUege that further assets have come to the hands of the executor or administrator, and he must substantiate this allegation by proof. Without such proof the commission will not be opened. Either the cred- 1 Gen. Sts. c. 99, § 20; Gushing v. Field, 9 Met. 180; Johnson v. Ames, 6 Pick. 330; Hunt v. Whitney, 4 Mass. 624. 2 Gen. Sts. c. 99, § 21. INSOLVENT ESTATES OF DECEASED PERSONS. 137 itor or executor may appeal from the decree of the probate court allowing or refusing the prayer of the petition.^ The claim of a creditor in whose favor the commission is reopened is not barred, in consequence of the lapse of time subsequent to the closing of the first commission, by any of the statutes of limitation. He may proceed by petition whenever there are new assets to be distributed. The executor or administrator is liable to account for all funds in his hands, though he may have received them more than twenty years after the- decree of distribution was passed.^ If after the report of the commissioners the assets prove sufficient to pay all debts allowed, the executor or adminis- trator pays them in full ; and if any other debt is afterwards recovered against him, he is liable therefor only to the extent of the assets then remaining. If there are two or more such creditors, the assets, if insufficient to pay them in full, is divided between them in proportion to their debts. The ex- ecutor or administrator, in an action brought against him on such demand, may prove the amount of assets in his hands, and thereupon judgment will be rendered in the usual form ; but execution will not issue for more than the amount of such assets ; and if there are two or more such judg- ments the court will apportion the amount between them.^ If it is not ascertained, at the end of eighteen months after the granting of letters testamentary or of administra- tion, whether an estate represented insolvent is or is not so in fact, any creditor whose claim has not been presented before the commissioners may commence an action therefor against the executor or administrator, which may be con- 1 The decree if not appealed from is conclusive, and cannot be inquired into in a subsequent appeal from the subsequent decision of the commis- sioners allowing or disallowing the claim. Ostrom v. Curtis, 1 Cush. 461. 2 Ibid. ; White v. Swain, 3 Pick. 365. 3 Gen. Sts. c. 99, §§ 22, 23, 24. 12* 138 PROCKEDINGS IN THE PROBATE COURTS. tinued without costs for the defendant until it appears whether the estate is insolvent. K it appears solvent, the plaintiff may prosecute the action as if no such representa- tion had been made.^ If it proves insolvent, he will have no remedy unless new assets come to the hands of the execu- tor or administrator, in which case he may petition that the commission be opened ; and if the commission is opened, he can prove his claim. All actions against an executor or administrator must be commenced within two years from the time he gives bond for the discharge of his trust except in the cases specified by statute.^ PROVISIONS AS TO ESTATES OF DECEASED FOEEIGNEES. When an inhabitant of another State or country dies in- solvent and leaves estate to be administered here, the estate found here is not to be transmitted to the foreign adminis-, trator until creditors who are citizens of this State have received their equitable dividends. If all the assets were transmitted to the foreign administrator, creditors in this State would be subjected to the expense of proving and col- lecting their demands abroad; and the pursuit of their claims in countries where the local law makes no provision for an equal distribution of the assets of a deceased insol- vent, might be wholly fruitless. Under the provisions of our statute, citizens of this State cannot be put to the incon-j venience of proving their claims abroad when there are assets here; nor, on the other hand, can the whole estate found here be expended in paying the claims of our citizens to the prejudice of foreign creditors ; but the estate found here, as far as practicable, is to be so disposed of, that all creditors of the deceased, here and elsewhere, may receive each an equal share in proportion to their respective debts.^ 1 Gen. Sts. c. 99, § 25. 2 Ibid. c. 97, §§ 5, 7, ante, page 116. 3 Gen. Sts. c. 101, § 40 ; Dawes v. Head, 3 Pick. 128 ; Hooker v. 01m- stead, 6 Pick. 481 ; Davis v. Esty, 8 Pick. 475. INSOLVENT ESTATES OF DECEASED PERSONS. 139 To this end, the statute provides that the assets shall not be sent to the foreign administrator until all creditors who are citizens of this State have received the just proportion that would be due to them if the whole estate of the de- ceased wherever found, that is applicable to the payment of common creditors, were divided among all the creditors in proportion to their respective debts, without preferring any- one species of debt to another,^ in which case no creditor who is not a citizen of this State shall be paid out of the assets found here until all those who are citizens have re- ceived their just proportion.* The statute further provides that if there is any residue remaining after such payment to the citizens of this State, it may be paid to any other creditors who have duly proved their debts here, in proportion to the amount due to each of them, but no one shall receive more than would be due to him if the whole estate were divided ratably among all the creditors. The balance may be transmitted to the foreign executor or administrator ; or, if there is none, it shall, after the expiration of four years from the appointment of the administrator, be distributed ratably among all creditors, lioth citizens and others, who have proved their debts in this State.3 1 The local laws of some countries prefer debts on judgments, bonds, &c., to simple contract debts. Such preferences are not to be regarded in the distribution here. 2 Gen. Sts. c. 101, §41. 3 Ibid. § 42. CHAPTER XIV. SALES OF LAND BY EXECDTOES, ADMINISTRATORS, AND GUARDIANS. SALES BT EXECUTORS AND ADMINISTRATORS. When the personal estate of a deceased person is insuf- ficient to pay his debts with the charges of administration, his executor or administrator may sell his real estate forthat purpose, having been first licensed therefor by the supreme judicial court or superior court in any county, or the pro^ bate court in which letters testamentary or of administration issued,^ And when a testator has given a legacy, which with his debts and the charges of administration his per- sonal' estate is insufficient to pay, the executor or admin- 1 Gen. Sta. c. 102, §§ 1, 2. An executor who is residuary legatee and gives bond for the payment of the debts and legacies, acquires an absolute title in the estate devised and may convey it without license. Clark v. Tufts, 5 Pick. 337. And an ex- ecutor duly authorized thereto by the terms of the will, may convey the lands of his testator without license. But when the executor, so empowered by the will, dies before making the tonveyance, or renounces the office of executor, the power to sell does not devolve upon the administrator with the will annexed who succeeds him. Such administrator can sell only by license of court. Tainter v. Clark, 13 Met. 220 ; Greenough v. Wells, IQ Cush. 571 ; Lamed v. Bridge, 17 Pick. 839 ; Conklin v. Egerton's admin- istrator, 21 Wendell, 430. If the executor is authorized to sell lands for trust purposes, he does sot, by renouncing the office of executor, lose the power to convey as trustee under the will. His sales and conveyances, made after the renunciation of his executorship and after his acceptance of the trust, are valid as agMnst the devisees and their heirs. Clark w.Tainter, 7 Cush. 567. SALES OF LAND BY EXECUTORS, &o. 141 istrator with the will annexed may be licensed, in like manner, to sell real estate for that purpose.^ As the legal title to real estate vests in the heirs or devi- sees immediately upon the death of the owner, the admin- istrator, as such, has nothing to do with the lands of his intestate, except to see that they are appraised, until he is licensed to sell them for the payment of debts and charges. Nor has the executor, unless under an authority given him by the will of his testator. "When, therefore, lands are sold by executors and administrators, it is important for them to observe strictly the directions of the statute, from which alone they derive the power to make the conveyance. Licenses to sell real estate are provided for by the statute only when the pers&nal property is insufficient for the pay- ment of debts, legacies, and charges of administration. The convenience of parties interested in the lauds would be pro- moted, in some cases, by a sale of them by the administra- tor, although the proceeds are not needed for the payment of debts or legacies, but licenses cannot be granted undei such circumstances (except to public administrators, whose sales under license are considered in a subsequent part of this chapter). The sale must be necessary for the payment of claims which can be enforced at law.^ The Real Estate liable to be sold includes all lands of the deceased, and all rights of entry and of action, and all other rights and interests in lands which by law would descend to his heirs, or which would have been liable to attachment or execution by a creditor of the deceased in his lifetime.^ No claim to such lands by entry or action can be made more than five years after the death of the grantor. When land 1 Gen. Sts. c. 102, § 19. 2 Lamson v. Schutt, 4 Allen, 359. . 3 Airlands of the debtor in possession, remainder, or reversion, all his Jights of entry into lands and of redeeming mortgaged lands, and all lands and rights above described fraudulently conveyed by him with intent to de- feat, delay, or defraud his creditors, or purchased, or directly or indirectly 142 PROCEEDINGS m THE PROBATE COURTS. is demised for the term of one hundred years or more, the term, so long as fifty years thereof remain unexpired, ia regarded by the statute as an estate in fee-simple as to everything concerning the sale thereof by executors, admin- istrators, and guardians by license from any court.^ The executor or administrator may sell lands held in mortgage, or taken in execution for a debt due the deceased, at any time before the right to redeem them is foreclosed, in the same manner as personal estate. The legal title to such lands is in him. He holds it in trust for the persons' paid for by him, the record title to which is retained in the vendor, or is conveyed to a third person with intent to defeat, delay, or defraud the creditors of the debtor or on ft trust for him, express or implied, iliay (ex- cept homestead rights) be taken on execution for his debts; Gen. Sts. c. 103, § 1. An executor or administrator licensed to sell lands fraudulently conveyed by the deceased, or fraudulently held by another person for him, or to •which he had a right of entry or of action or a right to a conveyance, may first obtain possession thereof by entry or by action. (Yeomans v. Brown, 8 Met. 51.) He may make a formal entry on the premises and bring an action on his own seisin acquired by such entry, demanding the land 89 executor or administrator. Gen. Sts. c. 102, §§ 12, 13. Real estate, conveyed by an intestate in his lifetime, without adequate consideration, and by way of gift, either in whole or in part, may be soH by his administrator to pay his debts, as estate conveyed by him vrith intent to defraud his creditors, if, at the time of the conveyance, he thereby ren- dered himself unable to pay his then existing creditors. Norton v. Norton, 5 Gush. 524. The proceeds of a sale by an administrator of real estate conveyed by his intestate with a view to defraud creditors, though such conveyance was^ void at the time as against then existing creditors only, are applicable to the payment of all the creditors alike. Ibid. If an administrator receives payment of a note given for the purchase- money of an estate, conveyed by his intestate to defraud creditors, he does not thereby ratify the conveyance ; unless the payment is received with full knowledge of the facts, and the administrator is a party in interest, in which case it might be otherwise. Ibid. An administrator cannot sell standing wood of his testator without first obtaining license to sell real estate. Richardson v. Crooker, 7 Gray, 190. 1 Gen. Sts. o. 90, § 20. SALES OF LAND BY EXECUTORS, &c. 143 who would be entitled to the money if the mortgage or other debt had been paid. But after the right of redemp- tion is foreclosed, the executor should obtain license before making sale of the land, in the same manner as if the de- ceased had died seised of it. The license is not necessary to enable the executor to convey the legal title, which is already vested in him, but is intended solely to bind heirs and legatees, and make the title good against them as the owners of the beneficial interest.^ The Petition for License to sell Real Estate must be pre- sented by the executor to the probate court of the county in which letters testamentary or of administration issued to him. It may be presented as soon as the necessity of the proposed sale becomes apparent. It must be in writing, and the statute requires to be set forth therein the amount of the debts due from the deceased as nearly as they can be ascertained, the amount of charges of adminis- tration, and the value of the personal estate exclusive of the amount allowed the widow or minor children, in the exec- utor's hands. It is sufficient to state in the petition the gross amount of all the debts due, but the executor or administrator must file with his petition a list of the debts, so far as they can be ascertained, showing the name of each creditor and the sum due to each. Such list of claims should be signed by the petitioner and sworn to.^ If it is necessary to sell only part of the reed estate, the petitioner may also set forth the value, description, and con- 1 Gen. Sts. c. 96, § 9, et seq. An executor, who, after foreclosing a mortgage held by his testator, sells and conveys the land, without license of court, is not liable to an action on the covenant of good right to convey in his deed, if the legatees have received the pnrchase-money ; nor, it seems, if they have not. Baldwin v. Timmins, 3 Gray, 302. 2 It is not necessary that the amount of the debts should have been pre- viously ascertained by judgment against the executor, or by commission of iusolven&y. Tenny v. Poor, 14 Gray, 500. 144 PROCEEDINGS IN THE PROBATE COURTS. dition of the estate, or of such part as he proposes to sell, and the court may direct what specific part shall be sold. If the estate is so situated that by a partial sale the residue of the estate, or of some specific piece or part thereof would be greatly injured, the facts should t)e stated in the petition.^ It is sometimes the case that the testator has made by will some disposition of his estate for the payment of his debts, or has given some directions which may vary the order in which the different parts of his estate shall be, appropriated. Thus, though the personal property is first liable for payment of debts, the testator may expressly exempt it, or some portion of it, by making it the subject of a specific legacy, and may direct his debts to be paid out of other funds, or may leave other funds not exempted,- Such specific legacies are not to be taken for the payment of debts, if there are other funds, so first liable. The law wiU respect the testator's directions so far as is consistent with the rights of creditors. If the will contains any pro- vision which may require or induce the court to marshal the assets in any manner different from that which the law would otherwise prescribe, such devise or parts of the will must be set forth in the petition, and a copy of the will must be exhibited to the court.^ Undevised land is first chargeable with the testator's debts in exoneration, as far as it will go, of the real estate devised, unless a different ar- rangement is made by the will.^ Notice to Parties interested. The license will not be grant- ed until notice of the petition, and of the time and place appointed for hearing the same, has been served either per- sonally on all persons interested in the estate,* at least four- teen days before the time appointed for the hearing, or by 1 Gen. Sts. c. 102, §§ 3, 4; Yeomans v. Brown, 8 Met. 58. 2 Gen. Sts. c. 102, § 7. 3 Ibid. c. 92, § 34. 4 When the executor petitions for license to sell land of which his testator was disseised at the time of his death, for the purpose of paying his debts. SAHS OF LAND BY EXECUTORS, &c. 145 publication three weeks successively in some newspaper, as the court may order. The petition may be filed in the probate office on any day, and the order issued by the regis- ter of probate. But if all persons interested signify their assent in writing to the sale, notice may be dispensed with,^ The assent should be indorsed on the petition. The Necessity for the proposed Sale. The party applying for license to seU the real estate of his testator or intestate, must satisfy the court that a necessity exists for the sale he proposes to make. To do this, he must exhibit the con- dition of the estate at the time. If the inventory made of the estate was full and complete, the necessity of the sale may be apparent from a comparison of the list of debts with the inventory. But the inventory shows, in but very few cases, the full amount of the personal assets, and the better course, in all cases, is for the petitioner to render an account of his administration on or before the day when his application for a license is to be heard by the court. The averment and admission of the executor that a cer- tain debt is due from the estate, is not evidence to establish the fact. But any creditor of the deceased is a competent witness to prove his debt in support of the executor's peti- tion.^ Any person interested may appear and object to the the disseisor in possession is not interested in the estate, within the mean- ing of the statute, and is not entitled to notice of the petition in order to render the license valid as against him. Yeomans v. Brown, 8 Met. 51. The practice in the probate court is to order notice in the manner pre- seribed by statute,, and it is not made the duty of the executor to obtain the appointment of guardians to all minors interested in the estate before he can obtain a license. Holmes v. Beal, 9 Cush. 226. The wife of a devisee of real estate is not entitled to notice of a petition of the devisor's administrator for license to sell it for the payment of debts, legacies, and charges of administration. Harrington v. Harrington, 13 Gray, 513. 1 Gen. Sts. c. 102, § 8. a Chamberlain v. Chamberlain, 4 Allen, 184. 13 146 PROCEEDINGS IN THE PROBATE COURTS. granting of the license, and if it appears to the court that either the petition or the objection thereto is unreasonable, they may award costs to the prevailing party.* It may be that the heirs or devisees prefer to keep the estate entire and in their own hands, or the value of the property may be temporarily depressed, so that it cannot be sold im- mediately without a considerable sacrifice. If for these reasons, or for any reasons, the persons interested wish to stay proceedings under the petition and prevent the sale, they can effect that result by paying to the executor or ad- ministrator the amount of money needed for the payment of claims against the estate, and the money so received will be assets of the estate to be administered and accounted for; apd the executor or administrator will be liable on his bond for any failure to appropriate such assets to the payment of debts and legacies ; ^ or any of the persons interested may give bond to the executor or administrator, in a sum and with sureties approved by the court, with condition to pay all debts mentioned in the petition that shall eventually be found due from the estate, and charges of admiijistratioDj so far as the personal estate may prove insufficient therefor. If the money is so paid, or if such a bond is given, license to sell will not be granted.^ The heirs may authorize the administrator to collect the rents and appropriate them to the payment of the debts, and thereby avoid the necessity for the sale.* As to the License. If the facts set forth in the petition are proved, and no sufficient cause is shown to the contrary, the license to sell will be granted, and the executor or ad- ministrator will thereupon be authorized to execute effect- 1 Gen. Stg. c. 102, § 45. 2 Fay v. Taylor, 2 Gray, 1S4. ' 3 Gen. Sts. c. 102, § 9. See Appendix, form No. 65. * But the occupation of the real estate by one of two administrators who is also one of the heirs, without paying or charging himself with any rent, is not of itself a bar to granting the license to sell. Palmer v. Palmer, 13 Gray, 326. SALES OF LAND BY EXECUTORS, &c. 147 ual conveyances of the estate.^ The court may license in terms the sale of the whole of the estate of the deceased, when the executor represents in his petition, and it appears to the court, that a sale of the whole is necessary,^ or may license the sale of such part thereof as is deemed neces- sary and most for the interest of all concerned, or may direct what specific part shall be sold.^ The license is suffi- cient if it is in general terms, authorizing the sale of so much as will raise a certain sum;* but the license must concur with and be based upon the petition.^ If it is necessary under the provisions of the will of the deceased, the court will marshal the assets, and the executor will appropriate the lands in the order specified by the court.^ License to sell is not usually granted after the expiration of the period (two years) limited for the commencement of actions against executors and administrators who have given due notice of their appointment. The object and general effect of the statute making this limitation, is to discharge the lien of creditors on the land at the expiration of the two years, thereby promoting the speedy settlement 1 Gen. Sts. c. 102, § 10. 2 Ibid. § 4 ; Sewall v. Raymond, 7 Met. 754. Under a license to sell tlie whole, the reversion of land assigned to the widow as dower may be sold. Bancroft v. Andrews, 6 Gush. 493. 3 Gen. Sts. c. 102, §§ 3, 4, 7. * Norton v. Norton, 5 Gush. 524. 5 On the petition for license to sell a spetific portion of the estate for the payment of debts and charges, and after publication of notice to show cause why license should not be granted to sell " the whole of the real estate of said deceased," a license to sell " the whole of the real estate of said de- ceased " is irregular and void ; and will not support an action by the ad- ministrator, on the Gen. Sts. c. 102, § 12, to recover the specific portion, as having been fraudulently conveyed by the deceased. Verry v. McClellan, 6 Gray, fl35. The executor may be licensed to sell land sufficient to pay a larger sum than the amount of debts and charges named in the petition. Tenny v Poor, 14 Gray, 500. 6 Gen. Sts. c. 102, § 7 ; Hays v. Jackson, 6 Mass. 149. 148 PKOCEEDINGS IN THE PROBATE COURTS. of estates and establishing the titles of the heirs. If no claims exist but those against which the statute of limita- tions furnishes complete protection, the proceeds of the real estate are not needed for the payment of debts, and a li- cense to sell cannot be granted. The question to be deter- mined upon every application for a license is, whether the proposed sale is necessary for the payment of claims against the estate.^ A license may be granted after the expiration of the two years, provided there are claims against the estate upon which the statute of limitations does not oper- ate.2 But the court will not grant a license after the two years have elapsed, unless extraordinary circumstances ren- der it proper, especially when the effect will be to disturb titles acquired under the presumption that all the debts had been paid.^ In what Cases a Bond must be given. The statute requires an executor or administrator who is licensed to sell more than is necessary for the payment of debts to give bond with sufficient surety or sureties to the judge of the probate court, conditioned to account for and dispose of according to law all proceeds of the sale remaining after payment of the debts and charges.* This requirement of the statute 1 Lamson v. Schutt, 4 Allen,. 359 ; Hudson v. Hurlburt, 15 Pick. 423 ; Heath V. Wells, 5 Pick. 140. 2 Palmer v. Palmer, 13 Gray, 326 ; Richmdhd, Petitioner, 2 Pick. 567. 3 Where a testator has paid debts of his testator, beyond the amount of the personal assets, within the time limited by statute, he cannot afterwards be licensed to sell lands to reimburse himself, unless the estate remains as it was at the death of the testator, and his application is m^e in a reasonable time after his payment of the debts. Allen, Petitioner, 15 Mass. 58. But where the land had neither been sold nor divided among the heirs, an administrator who had demands {gainst his intestate and had made ad- vances to the estate out of his own funds, but had' rendered no account until after the time limiting the bringing of actions had expired, the delay having been occasioned in part by an attempt to collect a debt abroad, was licensed to sell, Richmond, Petitioner, 2 Pick. 567; and see Palmer »• Palmer, 13 Gray, 326. 4 Gen. Sts. c. 102, § 6. SALES OF LAND BY EXECUTORS, &c. 149 does not apply to a case where the sale may unexpectedly exceed the amount necessary to be raised, but where it appears to the court at the time that it will be more than is necessary.^ "When license is granted to sell only so much as is necessary for the payment of debts and charges, no separate bond is necessary.^ Executor's Oath. In all cases the executor or adminis- trator, before fixing on the time and place of sale, is required to take and subscribe an oath in substance as follows : That, in disposing of the estate which he is licensed to sell he will use his best judgment in fixing on the time and place of sale, and wiU exert his utmost endeavors to dispose of the same in such manner as will be most for the advan- tage of all persons interested therein.^ The oath may be administered by any justice of the peace, and a certificate thereof must be filed by the execu- tor in the probate office. As to the Time of Sale. No license to sell land continues in force more than one year after it is granted, and sales must be made within the year, except when a sale is made of land which was not in possession of the deceased at the time of his death and is recovered by the executor or ad- ministrator. Land so recovered may be sold at any time within one year after possession is obtained.* But it is not essential that the deed be delivered within the year, provided all the other proceedings are regular. Notice of the Time and Place of Sale must be given by no- tifications posted thirty days at least before the sale, in some public place in the city or town where the deceased last dwelt, and in two adjoining cities or towns, if there are so many in the county, and also in the city or town where the 1 Sewell i;. Raymond, 7 Met. 459. 2 Fay V. Valentine, 8 Pick. 526 ; Tenny v. Poor, 14 Gray, 500. 3 Gen. Sts. c. 102, § 14; Thomas v. Le Baron, 8 Met. 355; Williams v. Reed, 5 Pick. 480. 4 Gen. Sts. c. 102, §§ 12, 13, 43. 13* 150 PROCEEDINGS IN THE PROBATE COURTS. lands lie ; ox by publishing the same three weeks succes- sively in a newspaper, as the court may order.^ Such notice is essential to the validity of the sale. The form of the notifications is not material, but the time and place fixed for the sale should be distinctly stated. An error in this particular may invalidate the sale.^ The conditions of the sale are not necessarily to be stated,^ but the notiiicS- tions should convey to the public all such information in regard to the property as, in the judgment of the executrix, is best calculated to promote the interests of the estate. It is important to executors, for their own protection, to pre- serve evidence of the fact that the notice was given as required by the terms of the license, and the statute pro- vides a mode of perpetuating such evidence. An affidavft of the executor, or of the person employed by him to give such notice, filed and recorded in the probate office within one year after the sale, or at any time afterwards by permis- sion of the court, is made admissible evidence of the time, place, and manner of giving the notice.* The fact may be proved by other evidence, but it may be difficult or impos- sible for the executor, after the lapse of years, in case a question is raised upon the covenants in his deed, to obtain such other evidence. In the absence of all evidence tha'l such notice was given, there is no presumption within thirty years that it was given.^ The affidavit, therefore, should be filed in all cases. Adjournment of the Sale. If, at the time appointed for the sale, the executor or administrator deems it for the inter,- 1 Gen. Sts. c. 102, § 15. See Appendix, form No. 66. 2 Where the sale was advertised to be on Friday, the 1 7th, whereas Fri; day was in fact the 16th, and the sale was made on the 16th, it was held void, although in the last publication, which was on the day of sale, the error was corrected. Willman v. Lawrence, 15 Mass. 326. 3 Paine v. Fox, 16 Mass. 129. i Gen. Sts. c. 102, §§ 15, 16. 5 Thomas v. Le Baron, 8 Met. 355. SALES OF LAND BY EXECUTORS, &c. 151 est of all persons concerned, that the sale be postponed, he may adjourn it for any time not exceeding fourteen days. Notice of such adjournment must be given by a public declaration at the time and place first appointed for making the sale ; and if the adjournment is for more than one day, further notice thereof must be given by posting or publish- ing as time and circumstances may admit.^ The Sale must be by public auction, and must be con- ducted with a view to insure an unrestrained and honest competition among bidders, and thus to procure the highest price for the land.^ The executor or administrator making the sale cannot properly become the purchaser, directly or indirectly, though if it is purchased by him, under color of a sale to some other person, the sale is not absolutely void ; strangers to the property cannot call it in question, but it is voidable at the pleasure of the heirs of the deceased.^ The heirs are not obliged to act jointly in avoiding the sale, but each one has an individual election.* If the land is subse- quently sold to a bona fide purchaser, who had no notice that it had been bought at the administrator's sale for the administrator's benefit, such purchaser will hold it as against the heirs, though the sale might have been avoided by a suit against the first grantee, or one claiming under him, who had notice of the irregularity.^ The same rules apply in cases of sales of land by guardians. 1 Gen. Sts. c. 102, §§ 17, 18. 2 An agreement by an administrator or guardian, to offer the real estate of his intestate or ward for sale by auction, and to sell the same to a par- ticular individual for an agreed price provided no higher sum should be bid, is valid. But such an agreement to sell the estate at a fixed price without regard to the biddings, is void. Hunt v. Frost, 4 Cush, 54. 3 Blood V. Hayman, 13 Met. 231 ; Jennison v. Hapgood, 7 Pick. 1 : Harrington v. Brown, 5 Pick. 519; Wyman v. Hooper, 2 Gray, 141 ; RoV bins V. Bates, 4 Cush. 104. 4 Litchfield v. Cudworth, 15 Pick. 23. 5 Blood V. HajTuan, 13 Met. 231 ; Wyman v. Hooper, 2 Gray, 141. 152 PROCEEDINGS IN THE PROBATE CODRTS. The essential particulars to which the purchaser ought to look, in order to protect himself against suits by the heira, are specified in the statute. He is not called upon to inform himself as to every particular connected with the administrator's or guardian's proceedings. He is not ex- pected, for instance, to inquire whether or not the adminis- trator obtained his license to sell by a false representation as to the condition of the estate. That is a matter in which the heirs are directly concerned, and they have a remedy against an unfaithful administrator on his bond. It is enough for the purchaser to know, so far as regards the license, that it was granted by a court of competent jurisdiction. The statute provides that " no sale of real estate by an executor, administrator, guardian, or other per- son authorized thereto by license of court, and no title under such sale, shall be avoided on account of the deed not hav- ing been executed and delivered within one year after the granting of the license for such sale, nor on account of any irregularity in the proceedings, if it appears that the license, bond, oath, and notice of time and place of sale, have been according to lawy and that the price for which the land shall have been bid off at auction has been paid by a bona jwk purchaser."^ If, however, in any particular, the purchaser is guilty of any collusion with the administrator, or has no- tice of any material defect in the proceedings, though it be in something into which he was not bound to inquire, he will not be protected by this provision of the statute. " If the validity of a sale is drawn in question by a per- son claiming adversely to the title of the deceased or the ward, or claiming under a title that is not derived from or through the deceased or ward, the sale shall not be void on account of any irregularity in the proceedings, if it appears that the executor, administrator, or guardian was licensed to make the sale by a court of competent jurisdiction, and I Stat. 1860, c. 60. SALES OF LAND BY EXECUTORS, &c. 153 that he accordingly executed and acknowledged, in legal form, a deed for the conveyance of the premises." ^ The question at issue in such a suit is not whether the claimant's title is better than that of the administrator's vendee, but whether it is better than that of the deceased person or ward. If he shows a better title, he will recover notwith- standing the conveyance by the administrator ; but if he has not a better title than that of the deceased person or ward, it is no concern of his whether the land goes to the heirs or to the person who holds under the administrator The particular proceedings of the administrator or guardian are therefore not material in such a suit.^ Every person licensed to sell lands is required, upon appli- cation to the probate court by an heir, creditor, ward, or other person interested in the estate, to make answer upon oath to all matters touching his exercise and fulfilment of the license, including all proceedings from its first grant; and if, in relation to the exercise of such license or the sale under it, there is any neglect or misconduct in his proceed- ings, by which a person interested in the estate suffers dam- age, he may recover compensation therefor on the probate bond or otherwise as the case may require.'* The Administrator's Deed. In his deed to the purchaser of the real estate, the executor, administrator, or guardian covenants with his grantee that, in making the sale, he was duly authorized by the court ; that he has complied with the 1 Gen. Sts. c. 102, § 48. 2 Actions for the recovery of lands sold by executors and administrators must be commenced within five years after the sale ; and for lands sold by guardians, within five years after the termination of the guardianship ; ex- cept that persons out of the State, or under legal disability to sue at the time when the right of action first accrues, may commence an action within five yeai'S after the removal of the disability or their return to the State. No entry, unless by judgment of law, can be made upon the land sold, with a view to avoid the sale, unless within the time of limitation. Gen. Sts, c. 102, § 46. 3 Ibid. c. 49. 154 PROCEEDINGS IN THE PROBATE COURTS. order of the court by giving bond and taking the oath requirea by law, and by giving notice of the time and place of the sale ; and that he has in all things observed the rules and directions of law relative thereto. The date of the decree of the court granting the license should also be stated in the deed.^ The executor or other person selling land under license is not required by any duty of his office to enter into a per- sonal covenant for the absolute perfection of the title which he undertakes to convey, or for the validity of the convey- ance beyond his own acts. He is at liberty to do so, if he chooses thus to excite the confidence of purchasers and enlarge the proceeds of the sale ; and he may engage his own credit collaterally in the conveyance. But such cove- nant, although expressed to be made in his official capacity, is necessarily a personal covenant, for the breach of which he is personally liable.^ SALES BY FOREIGN EXECUTORS AND ADMINISTRATORS. " An executor or administrator appointed in another State or in a foreign country on the estate of a person dying out of this State, upon whose estate there is no executor or administrator appointed in this State, may file an authenti- cated copy of his appointment in the probate court for any county in which there is real estate of the deceased ; after which he may be licensed by the same probate court, or the supreme judicial court, or superior court in any county, to sell real estate for the payment of debts, legacies, and 1 An administrator's deed is not rendered invalid by a misrecital of the time when the license was granted, if it also contains a recital of other facts which show that the sale was made under the true license. Thomas v. Le Baron, 8 Met. 355. Nor is a deed in which the executrix making the sale describes herself as administratrix thereby rendered invalid. Cooper v. Robinson, 2 Cash. 184. See Appendix, form No. 67. 2 Sumner i: Williams, 8 Mass. 201. SALES OF LAND BY EXECUTOES, &c. 155 charges of administration, in the same manaer and upon the same terms and conditions as are prescribed in the case of an executor or administrator appointed in this State, except as hereinafter provided. " When it appears to the court granting the license, that such foreign executor or administrator is bound with suffi- cient surety or sureties, in the State or country in which he was appointed, to account for the proceeds of such sale, and a copy of such bond duly authenticated is filed in the pro- bate court where the copy of his appointment is filed, no further bond for that purpose shall be required of him here ; otherwise, before loaking such sale he shall give bond, with sufficient surety or sureties to the judge of the probate court for the same county, with condition to account for and dis- pose of said proceeds in the payment of debts, legacies, and charges oi administration, according to the law of the State or country in which he was appointed. " When such foreign executor or administrator is licensed to sell more than is necessary for the payment of debts, lega- cies, and charges of administration, he shall before making the sale give bond with sufficient surety or sureties to the judge of the probate court, conditioned to account before the same court for all proceeds of the sale remaining after payment of said debts, legacies, and charges, and to dispose of the same according to law. " Every foreign executor or administrator licensed to sell real estate shall, before fixing upon the time and place of sale, be sworn and give notice of the time and place of sale, and otherwise proceed as is prescribed for an administrator appointed here when making such sale ; and the evidence of such notice may be perpetuated in the same manner." ^ SALES BY GUARDIANS. For the Payment of Debts. When the goods, chattels, 1 Gen. Sts. c. 102, §§ 20, 21, 22, 23. 156 PROCEEDINGS IN THE PROBATE COURTS. rights and credits in the hands of a guardian are insufficient to pay all the debts of the ward, with the charges of man- aging the estate, the guardian may be licensed to sell the real estate for that purpose, by the probate court for the county in which he is appointed, or the supreme judicial court, or superior court in any county. The guardian must proceed by petition, and the petition may be substantially. in the same form as that of an executor or administrator who applies for leave to sell real estate for the payment of debts. It must appear that a necessity exists for the sale proposed.'^ If it is represented in the petition and appears necessary to sell some part of the real estate of the ward, and that by such partial sale the residue of the estate, or of some speci- fic piece or part thereof would be greatly injured, the court may license a sale of the whole of the estate, or of such part thereof as it deems necessary and most for the interest of all concerned, the guardian first giving bond, if he is licensed to sell more than is necessary for the payment of debts, to account for and dispose of the surplus proceeds according to law. The condition of such bond is the same as that of a bond given by executors and administrators under like circumstances.^ For Maintenance and Investment. When the income of a ward's estate is insufficient to maintain him and his family, or when it appears that it would be for the benefit of a ward that his real estate .or any part thereof be sold, and the proceeds put out at interest or invested in some produc- tive stock, his guardian may be licensed to sell the same.^ A father is bound, to the extent of his ability, to support his minor child ; but if the minor's property is sufficient for his maintenance and education in a more expensive manner 1 Gen. Sts. c. 102, § 24. ' 8 Ibid. §, 25. 3 Gen. Sts. c. 102, § 26. A guardian may be licensed to sell the home- stead right of his ward. Ibid. c. 104, § 14. SALKS OF LANDS BY EXECUTORS, &c. 157 than his father can reasonably afford, regard being had to the situation of the father's family and to all the circum- stances of the case, the expenses of the maintenance and education of such child may be defrayed out of his own property, in whole or in part, as shall be deemed reasonable by the probate court ; and when necessary his real estate may be sold for that purpose by the guardian under license.^ To obtain such license, the guardian must present to the court a petition setting forth the condition of the estate, and the facts and circumstances upon which his application is founded. If after a full examination, on the oath of the petitioner or otherwise, it appears either that it is necessary, or that it would be for the benefit of the ward, that the real estate or any part of it should be sold, the court may grant a license therefor, specifying therein whether the sale is to be made for the maintenance of the ward and his family, or that the proceeds may be put out and invested.^ Guardians licensed to sell real estate for maintenance of a ward or investment, are required, before the sale, to give bond, with sufiicient surety or sureties, to the judge of the probate court for the county in which they are appointed, with condition to sell the same in the manner prescribed for sales of real estate by executors and administrators, and to account for and dispose of the proceeds in the manner pro- vided by law.3 The estate of a minor may 1^ sold for the purpose of investing the proceeds upon the petition and representation of any friend of the minor ; and in such case the court may authorize the guardian or any other suitable person to convey the estate. When a sale for such purpose is ordered on the petition of the guardian of a minor, the court may authorize any suitable person other than the guardian to sell and con- 1 Gen. Sts. c. 109, § 21. 2 Ibid. c. 102, § 27. 3 Ibid. c. 102, § 28. 14 158 PROCEEDINGS IN THE PROBATE COURTS. vey the estate. The statute provisions in relation to the licenses and sales on the petitions of guardians apply to licenses and sales on the petition of a friend of the minorj except that upon a sale by a person other than the guardian, the proceeds are to be forthwith paid to the guardian upon his giving bond, with sufficient sureties, to the judge of the probate court for the county where the real estate is situate^ conditioned to account therefor. If there is no guardian, the proceeds are required to be put out and invested by the person authorized to sell the estate, in like manner as is required of a guardian.^ No license is granted to a guardian except in case of minors, unless the overseers of the poor of the place where the ward is an inhabitant or resides certify in writing their approbation thereof. No license can be granted to a guar- dian until after notice, by public advertisement or otherwise; as the court shall order, for the next of kin of the ward, and all persons interested in the est&te, to appear and show cause why the same should not be granted; but such notice may be dispensed with, if all persons interested signify in writing their assent to the sale. All who are next of kin, and heirs apparent or presumptive of the ward, are consid- ered by the statute as interested in the estate, and may appear as such and answer to the petition of the guardiani Guardians appointed in this State or elsewhere, when licensed to sell real estate, are required, before fixing on the time and place of sale, to take and subscribe the oath, give notice of the time and place of sale, and otherwise proceed therein as prescribed in like cases for executors and admin-: istrators ; and the evidence of giving notice may be perpet- uated in the same manner.^ SALES BY FOREIGN GUARDIANS. " When a minor, insane person, or spendthrift, residing 1 Gen. Sts. c. 102, §§ 31, 32. a Ibid. §§ 37-41. SALES OF LANDS BY EXECUTORS, &c. 159 out of this State, is under guardianship in the state or country in which he resides, and has no guardian appointed in this State, the foreign guardian may file an authenticated copy of his appointment in the probate court for any county in which there is real estate of the ward ; after which he may be licensed to sell the real estate of the ward in any county, in the same manner and upon the same terms and conditions as are prescribed in this chapter (Gen. Sts. c. 102), in the case of a guardian appointed in this State, ex- cept as hereinafter provided. " When it appears to the probate court, that a foreign guardian, licensed to sell real estate for the payment of the debts of his ward, is bound with sufficient surety or sureties, in the state or country where he was appointed, to account for the proceeds of such sale, and an authenticated copy of such bond is filed in said court, no further bond shall be required ; otherwise he shall give bond in like manner as is prescribed in this chapter in case of sales by foreign execu- tors or administrators. " When such foreign guardian is licensed to sell more than is necessary to pay debts and charges, he shall, before making the sale, give bond with sufficient surety or sureties, to the judge of the probate court, conditioned to account before the same court for all proceeds of the sale remaining after payment of said debts and charges, and to dispose of the same according to law.^ " Every foreign guardian licensed to sell real estate for the maintenance of his ward or investment, shall before making the sale give bond with sufficient surety or sureties to the judge of the probate court, conditioned, in addition to the condition required in the bond of other guardians in such case, that he will account for and dispose of the pro- ceeds or so much thereof as may remain upon the final settlement of his accounts, to such persons, and in such 1 Gen. Ste. c. 102, §§ 33-35. 160 PROCEEDINGS IN THE PROBATE COURTS. proportions, as the real estate would have descended or been disposed of according to the laws of this State if it had not been sold.^ All proceedings in probate courts respecting sales by a foreign executor, administrator, or guardian must be had in the court for the county in which an authenticated copy of his appointment is first filed.^ SALES BY PUBLIC ADMINISTRATORS. Public administrators may be licensed to sell real estate for the payment of debts. The petition for such sale and the proceedings thereon, and under the license, are the same as are prescribed for other administrators.^ Sales by public administrators are not limited to cases where the sales are necessary for the payment of debts. The statute provides that after three years from the date of letters of administration to a public administrator, he may sell the real estate, although not necessary for the pay- ment of debts, upon obtaining a license from the probate court if it appears to the judge to be for the interest of all concerned. The petition, in such case, should be framed in accordance with the facts upon which it is founded, and the public administrator takes the oath, gives the bond, and otherwise proceeds as is requued of administrators licensed to sell real estate more than is necessary for the payment of debts.* CONVEYANCES OF LAMDS BY EXECUTORS, ADMINISTRATORS, AND GUARDIANS UNDER CONTRACTS — SPECIFIC PERFORMANCE. " When a person who has entered into a written agree- ment for the conveyance of real estate dies or is put under guardianship before making sueh conveyance, the probate 1 Gen. Sts. c. 102, § 36. 2 Ibid. § 42. 3 Gen. Sts. c. 95, § 10. 4 Ibid. § 11. SALES OF LANDS BY EXECUTOES, &c. 161 court shall have jurisdiction concurrent with the supreme judicial court to enforce a specific performance, and upon a petition therefor presented by any person interested in the conveyance, shall order the petitioner to give notice to all persons interested, that they may appear and show cause either for or against the prayer of the petition. " If upon the hearing it appears that the deceased, if liv- ing, or the ward, if not under guardianship, would be required to make the conveyance, the court shall order the executor or administrator of the deceased or the guardian of the ward to make the same ; and when so made it shall haVe like force and effect as if made by the person who entered into the agreement to convey." ^ EELEASE OF INTERESTS IN LAND BY EXECUTORS AND OTHERS. The statute provides that probate courts " may authorize executors, administrators, guardians, and trustees to release and discharge, upon such terms and conditions as appear proper, any vested, contingent, or possible right or interest belonging to the persons or estates by them represented, in or to any real or personal estate, whenever it appears to be for the benefit of the persons or estates in trust." ^ This provision does not apply to sales of the land itself, and has not any reference to sales of land by executors and administrators for the payment of debts and legacies, nor to sales by guardians for maintenance or investment. Leave to release the remote interests mentioned in the statute may be granted, when it appears to be for the benefit of the par- ties interested, whether the proceeds are necessary for the payment of debts and legacies or not. The person apply- ing for leave to release such an interest should state in his petition the names and residences of all persons interested, 1 Gen. Sts. c. 117, §§ 5, 6. Keed v. Whitney, 7 Gray, 537; Miller v. Goodwin, 8 Gray, 542. See Appendix, form Nos. 68, 69. 2 Gen. Sts. c. 101, § 11. 14* 162 PROCEEDINGS IN THE PROBATE COURTS. and fully describe the nature of the interest to be released. The same notice of the petition must be given as is required in cases of sale for the payment of debts.^ When leave isj granted, the court directs the manner in which the release shall be made. 1 Stat. 1863, c. 230. 2 CHAPTER XV. ACCOUNTS OF EXECUTORS, ADMINISTEATORS, GUARDIANS, AND TRUSTEES. Every executor and administrator is required by statute and by the condition of his bond to render to the probate court a true account of his administration within one year after giving bond, and such further accounts firom time to time as may be necessary or convenient, or as the probate court may require.^ A public administrator, who gives a separate bond for each estate settled by him, is held to account like other ad- ministrators ; if he gives a general bond covering all estates intrusted to him, he is held to render an account of each estate within one year after the date of his letters of admin- istration thereon, and at least once in each year until the trust is fulfilled; and he is held further to render an account to the probate court first held in his county after the first day of January in each year, of all balances of estates then remaining in his hands.® Special administrators are held to account whenever re- quired by the probate court.^ Guardians are bound to render an account within one year after their appointment, and as often as once in three years thereafter, and at such other times as the probate court directs ; and at the expiration of their trust to settle their accounts in court or with their wards.* Trustees are held to account within one year, and at any other times when required by the probate court.^ J Gen. St3. c. 94, § 2 ; c. 98, § 9. 2 Ibid, c 95, §§ 6, 7, 8. 3 Ibid. c. 94, § 7. 4 Ibid. c. 109, § 16. 5 Ibid. c. 100, § 1. 164 PROCEEDINGS IN THE PROBATE COURTS. It is the practice, to some extent, of executors and other trust officers appointed by the probate court, to settle their accounts with the parties interested without rendering a final account to the court, and, in a majority of cases, no inconvenience results from that mode of proceeding. Such a settlement, however, between the administrator and the heirs, or between the guardian and his ward, is not a com- pliance with the condition of his bond ; and he may be cited, on the petition of persons interested, to render his account in the probate court notwithstanding such settle- ment. He may be held to account, although he produces the receipts of all the heirs acknowledging the payment of their distributive shares in full.^ Such receipts are evidence for the consideration of the probate court in determining whether a further settlement shall be ordered or not, but they do not estop the heirs, or the ward, from calling on the administrator, or the guardian, to settle his accounts in court. "When one of two or more joint executors or administra- tors dies, or is removed before the administration is com- pleted, the account is rendered by the other or others.^ When a sole executor or other trust officer dies, not having settled his account, it should be rendered by his executor or administrator,^ and it has been held that it may be settled by the administrator of one of his sureties.* CITATION TO RENDER ACCOUNT. If the executor or other officer neglects or unreasonably 1 Bard V. Wood, 3 Met. 74; Clark v. Clay, 11 Foster (N. H.), 393. Notwithstanding the settlement and receipt, the guardian is bound to an- swer on oath proper interrogatories respecting his account Ejnd the items thereof, and the ward may introduce evidence touching the execution and validity of the receipt. Wade v. Lobdale, 4 Cush. 511. 2 Gen. Sts. c. 101, § 2. 3 The guardian's administrator may be cited for that purpose oa petition of the ward. Gregg v. Gregg, 15 N. H. 190. * Curtis V. Bailey, 1 Pick. 199. ACCOUNTS OF EXECUTORS, ADMINISTEATOKS, &c. 165 delays the settlement of his account in the probate court, he may be cited for that purpose on the petition of any per- son interested in the estate concerning which the account is to be rendered. The petition should set forth the particu- lars in which the executor has been negligent, in accordance with the facts of the case.^ Upon such petition, the court will issue a citation to the delinquent party, which must be served in the manner directed by its terms. If, after being cited, he neglects to appear or to render his account, leave will be granted to bring a suit on his bond ; and he will be liable in like manner and to the same extent as an executor in his own wrong.^ FOEM OF ADMINISTRATION ACCOUNT. In his account, the executor or administrator charges him- self with the amount of assets that have come to his hands, and asks to be allowed for the amount of all debts paid by him, and the expenses of the administration. With the account, stated in this form, must be filed a schedule, stat- ing the names of aU persons of whom he has received money, the sum received from each, and the time when each sum was received; and a second schedule, giving the several sums paid by him, the person to whom, and the purpose for which, each sum was paid. The blanks, to be had on appli- cation at the probate offices, exhibit the form in which the account should be stated. If the estate has been repre- sented insolvent, the executor or administrator does not ask in his first account to be allowed any sum for the payment of debts owed by the deceased, he having no authority to pay the debts except under a decree of distribution issued by the court. He credits himself with the charges of admin- istration, the amount of loss, if any, necessarily sustained by the estate in his hands, and with the amount of the allowance, if any, made by the court to the widow or minor 1 See Appendix, form No. 70. . 2 Gen. Sts. c. 98, § 11. 166 PROCEEDINGS IN THE PKOBATE COURTS. ' children of the deceased. The balance, thus exhibited, re- mains in his hands, until he is ordered by the court to dis- tribute it among the creditors. If the deceased insolvent had been a member of a copart- nership and died in possession of both partnership estate and separate estate, and both partnership and separate claims are proved against his estate, the administrator should so state his account as to exhibit the amount of the partnership estate in his hands distinct from the separate estate. The expenses of administration in such case are to be deducted from the whole amount received by the executor, and the net proceeds of the joint stock are ap- propriated to paj- the creditors of the firm, and the net proceeds of the separate estate to pay the separate creditors; the surplus, if any, of one fund being applied towards the liquidation of debts payable out of the other. WITH WHAT THE EXECUTOR OR ADMINISTRATOR IS CHAEGEABLE. The first item with which the executor or administrator charges himself in the schedule annexed to his first account is the value of the personal estate as shown by the inven- tory. He should charge himself with the fall amount of the appraisal of the personal property, whether he has dis- posed of it for more or less than that amount. If he has sold the personal estate for more than its ap- praised value, he n^xt charges himself with the amount of the gain. After thus accounting for the personal property inven- toried and for the gain, if any, on its sale, he charges him- self with all proceeds of real estate sold by him for the payment of debts and legacies, with the proceeds of any personal estate not included in the inventory, and with all interest, profit, and income that may have come to his hands from the personal Estate of the deceased.^ He is 1 Manure taken from the barnyard of a homestead and piled on the ACCOUNTS OF EXECUTOES, ADMINISTKATOES, &c. 167 chargeable with the value of personal property lost through his negligence, though it never came into his actual posses- land, though not broken up nor rotten, nor in a fit state for incorporation with the soil, is part of the realty, and is not chargeable to the administrator as personal estate. Fay v. Muzzey, 13 Gray 53. But he is chargeable with the value of manure when it is personal property, although he has spread it in the usual course of good husbandry on the land of the deceased, and has sold the land for payment of debts. Ibid. When the administrator of an insolvent estate sold real estate, under license of probate court, and the land sold was mortgaged, and the mort- gage recorded, but was unknown to him or the purchaser at the time of the sale, it was held that he might apply the proceeds of the sale to the pay- ment in full of the mortgage debt, and that he was chargeable in his account only for the balance of such proceeds. Church v. Savage, 7 Cush. 440. Money received by an administrator from the government of the United States, by means of a treaty with a foreign nation, as an indemnity for prop- erty taken from the intestate by such foreign nation, is assets in the adminis- trator's hands. Foster v. Fifield, 20 Pick. 67. When personal property attached by the trustee process was assigned by the owner subject to the attachment, and the attachment was dissolved by the owner's death, it was held that the property passed by the assignment, and was not assets in the administrator's hands. Coverdale v. Aldrich, 19 Pick. 391. Where an executor sold lands of the testator and became himself a pur- chaser with two others, under an agreement to share equally in the profits of resale, he was held to account for one third part of such profits. Jen- ninson v. Hapgood, 10 Pick. 93. If, to prevent a sale of the real estate, the heirs furnish the executor or administrator with money sufficient for the payment of all claims against the estate and the expenses of administration, and thereby render any sale of the real estate unnecessary, the money so furnished by them is assets of the estate, to be accounted for by the administrator. Fay v. Taylor, 2 Gray, 159. ' Money found, after the death of a testatrix, in a secret drawer of a chest belonging, to her, does not pass by a specific bequest of the chest, but is a portion of the residuum of the personal estate, for which the executor is bound to account. Smith v. Jewett, 3 Chandler (N. H.), 513. If an executor receive money for a deed of real estate made by the tes- tator, but not delivered until after his death, he is bound to account for it. Loring V, Cunningham, 9 Cush. 87. 168 . PROCEEDINGS IN THE PROBATE COURTS. sion.^ And if he has received money not belonging to the estate, and received it in his official capacity, he must charge himself with it, unless *he can show a liability to pay it over to one legally claiming it.^ When an executor is by the express terms of the will of his testator, or by necessary implication, made a trustee of any part of the estate, he will be required to account for the trust fund in his capacity of executor, unless for greater : convenience and with the assent of the probate court he opens a new account as trustee ; in which event he must give a new bond as trustee, and transfer to his account as trustee the property to be held and administered by him in that character, before his liability as executor will termi-" nate.3 If he continues to hold the trust fund as executor, j it is his duty to separate it from the mass of the testator's j property, and invest it in some secure and productive stock, * or at interest on gpod security. And if in this respect he Salary voted to a person after his decease, and paid to his executor, is assets of the estate, to be accounted for by the executor. Ibid. The amount of land damages paid for land taken for a railroad, after the > death of the intestate, belongs to the heirs and not to the administratori;. 1 although the estate is insolvent, and the whole estate is afterwards sold by ' the administrator, under license, for the payment of debts. Boynton v. P. & S. Railroad, 4 Cush. 467; otherwise, if actually taken before the intestate's death. Moore v. Boston, 8 Cush. 274. If the testator had money or other property in his hands belonging to others, ■whether in trust or otherwise, and it has no ear-mark, and is not dis- . tinguishable from the mass of his property, the party owning it must come in as a general creditor of the estate, and the property is assets, to be ac- counted for by the executor. Trecothic v. Austin, 4 Mason, 29 ; Johnson v. Ames, 11 Pick. 181. 1 Two turkeys belonging to the intestate wandered away, after his death, to a neighbor's house and there remained several months, when they were i disposed of by the neighbor. They had never been in the administrator's possession, nor had he ever called for them. He was ordered to charge himself with their value. Tuttle v. Kobinson, 33 N. H. 104. 8 Jennison v. Hapgood, 10 Pick. 104. 3 Prior V. Talbot, 10 Cush. 1. i ACCOUNTS OF EXECUTORS, ADMINISTKATOKS, &c. 169 acts with strict fidelity and due diligence, he will not be responsible should any loss happen, either of principal or interest.^ But the mere mental determination of an execu- tor to appropriate property to himself as trustee, is not such a setting apart as will cause a loss or depreciation of the trust fund to fall on the cestui que trust; the executor, in such cg,se, must account for the entire trust fund, and the .amount due from him must be stated by making annual rests, adding the interest each year to the principal.^ If an administrator appointed in this State collects funds in another State of debtors residing there, he must account for them here, unless he has taken out letters of ancillary administration in such other State ; in that case, he will be held to account here only for the surplus remaining in his hands upon the settlement of the ancillary administration.^ But money collected there of debtors residing here must be accounted for here.* An ancillary administrator appointed in this State must account to the court by which he was so appointed for all assets received by him under his ancillary appointment; but not for assets received by him as principal adtninistra- tor in the place of the principal administration.® When chargeable with Interest. An executor or adminis- trator is not chargeable with interest on the money received by him in his official capacity unless he has made some profitable use of the money, or has been guilty of negligence in accounting for it.^ An administrator is not expected to invest any part of the money belonging to the estate ; nor 1 Dorr ^j. Wainwrlght, 13 Pick. 332 ; Brown v. Kelsey, 2 Cush. 248 ; Hubbard v. Lloyd, 6 Cush. 524. a Miller v. Congdon, 14 Gray, 114. 3 Hooker v. Olmstead, 6 Pick. 481 ; Jennisou v. Hapgood, 10 Pick. 77. * Ibid. 6 Pay v. Taylor, 3 Met. 109. 6 Wyman v. Hubbard, 13 Mass. 232; Stearns u. Brown, 1 Pick. 530; Boynton v. Dyer, 18 Pick. 1. 15 170 PROCEEDINGS IN THE PROBATE COURTS. is an executor, unless he is authorized to do so by the will of his testator. On the contrary, it is his duty to collect, the assets and pay them over to the persons entitled to rer ceive them as speedily as circumstances will allow. But if he has invested the money and received interest upon it, he must account for it ; and the fact that he has received interest, or has made use of the money in his own business may be inferred from a long delay in settling his accounts, or his neglect to pay over balances after demand made upon him.'^ But if the delay was without negligence on his part, he will not be chargeable with interest unless he has made profit of the funds.^ He is not to be charged with interest in any case from the date of his appointment, or of his re- ceipt of the money. He is to be allowed a reasonable time to settle the estate, and the time proper to be allowed for that purpose must depend upon the circumstances of each case. No general rule would do justice in all cases.^ When the administrator employs the funds of the estate in his own business, he is liable to be charged with compound in,terest.* Income of the Real Estate. The administrator has no official authority to collect the rents of real estate belonging,,' to the estate of his intestate; nor has the executor, unless . authorized by the will of his testator. The real estate vests in the heirs or devisees immediately upon the death of the owner, and all rents that become due subsequent to his death belong to them. Even if the estate is insolvent, they are entitled to the rents and profits until the land is sold, by license of court, for the payment of debts.^ But rent4 1 Wyman v. Hubbard, 13 Mass. 232. 2 Lamb v. Lamb, ll.Pick. 374. ' 3 See Clarkson v. De Peyster, 2 Wend. 77; Schiffelin v. Stewart, 1 Johns, '; Ch. 620; Jennison v. Hapgood, 10 Pick. 77. * Boynton v. Dyer, 18 Pick. 1 ; Bobbins v. Hayward, 1 Pick. 527; Schif- felin V. Stewart, 1 Johns. Ch. 620. 5 Gibson v. Farley, 16 Mass. 280 ; Boynton v. P. & S. Kailroad, i Cush 469. ACCOUNTS OP EXECUTORS, ADMINISTRATORS, &c. 171 collected by the executor or administrator to be applied, by agreement with the parties interested, to the payment of claims against the estate, thereby rendering unnecessary a sale of the land, are personal assets, to be charged against the administrator in his account.^ A special administrator, when authorized by the probate court to take charge of the real estate of his intestate, is chargeable with the rents and profits. Debts due from the Executor or Administrator. If the administrator is himself a debtor to the estate, the debt owed by him is regarded as assets of the estate, to be ac- counted for by him. He must charge himself with the amount of the debt, as if he had received it of any other person ; ^ and he is bound to answer upon oath as to all facts tending to show that he was indebted to the deceased, even as to facts that take the claim out of the operation of 1 Stearns v. Brown, 1 Pick. 159. The statute provides (Gen. Sts. c. 98, § 8), that " if the real estate has been used or occupied by the executor or administrator, he shall account for the income thereof, as ordered by the probate court with the assent of the executor or administrator and of such other parties interested as are present at the rendering of the account. If the parties do not agree on the sum to be allowed, it shall be determined by three disinterested persons, to be appointed by the probate court, whose award being accepted by the court shall be final." This provision does not make executors and administrators officially liable for rents and profits that come to their hands, but was designed to facilitate the settlement between the executor and the devisees, or the administrator, and the heirs, and pre- vent disputes among them. Newcomb v. Stebbins, 9 Met. 544. 2 Ipswich ManuPg. Co. v. Story, 5 Met. 310; Winship v. Bass, 12 Mass. 199 ; Stevens v. Gaylord, 11 Mass. 266. Debts due to the estate of a testa- tor from the executor named in his will, and from a firm of which he is a member, are to be accounted for as assets ; although he and his firm were insolvent at the time when he accepted the trust, and although he has never charged them in his account, and an account has been allowed in which they were not included, but were mentioned as notes which it had been impos- sible to collect, and although he has resigned his trust, and an administrator de bonis non has been appointed in his place. Leland v. Felton, 1 Alleui 531. 172 PROCEEDINGS IN THE. PROBATE COURTS. the statute of limitations, though it may be apparently barred by that statute.^ i. The old rule, that a testator by making a debtor his exe- cutor thereby releases his debt, has never been in force in this State. The debt is assets in the executor's hands for which .he and his sureties are liable.^ WHAT IS ALLOWED TO THE EXECUTOR OR ADMINISTRATOR. The executor or administrator of a solvent estate is al- lowed to credit himself in his account with all sums paid by him in satisfaction of debts due from the deceased at the time of his death.^ The estate is not liable for money paid in pursuance of a promise, the consideration of which arises after the death of the testator or intestate. Upon such a promise the executor or administrator is personally liable. Whether the amount is to be repaid to him from the estate is a question to be determined by the probate court, upon the settlement of his account.* It would be necessary for him to show, in sup- port of his application for an allowance in such case, that the payment made by him was beneficial to the estate, or was made with the assent of the parties interested. An administrator may pay assessments upon shares in banks and other corporations which he holds as part of the assets of the estate, and will be allowed in his account for such payments, provided the assessments were legally laid and the payments were necessary to redeem the shares from a lien created by the assessment, and were beneficial 1 Sigourney v. Wetherell, 6 Met. 553. 2 Ipswich Manuf'g. Co. v. Story, 5 Met, 313; WinsMp v. Bass, 12 Mass. 199; Stevens v. Gaylord, 11 Mass. 267. 3 An administrator is not allowed for personal property applied by him to repairs and improvements of the real estate, though so applied in execut- ing an agreement of the intestate. Cobb v. Muzzey, 13 Gray, 57. * Luscomb V. Ballard, 5 Gray, 403. ACCOUNT OF EXECUTORS, ADinNISTEATORS, &c. 173 to the estate. And if he acted in good faith he would un- doubtedly be protected, even if the shares should have sub- sequently fallen in value in his hands.^ The executor or administrator will not be allowed in his account for debts paid by him after they had become barred by the statute limiting the time (two years) within which suits can be brought against executors and administrators who have given legal notice of their appointment. The ex- ecutor's promise to pay a claim so barred cannot affect the estate.^ It has been held in this State that an executor or admin- istrator may revive by a new promise a claim barred by the general statute of limitation,^ and that such new prom- ise will bind the estate in his hands.* He cannot however revive a claim held by himself.^ There seems to be no good reason for allowing an executor or administrator for payments made on debts barred by either statute of limitation. If the estate has been represented insolvent, the executor is not allowed in his first account for the payment of debts, he having no authority to make such payments except under a -decree of distribution issued by the court.^ He credits himself only with the expenses of the last sickness and funeral of the deceased, charges of administration, the loss, if any, necessarily sustained by the estate in his handsj 1 Kiply V. Sampson, 10 Pick. 373. Taxes paid by an executor on lands in another State wliere he had not taken out administration, were not al- lowed in his account. Jennison v. Hapgood, 10 Pick. 105. 2 Brown V. Anderson, 13 Mass. 201 ; Dawes v. Shed, 15 Mass. 6; Emer- son V. Thompson, 16 Mass. 429. 3 Foster v. Starkey, 12 Cush. 324. * Manson v. Felton, 13 Pick. 206*; Emerson v. Thompson, 16 Mass. 429. 5 Richmond, petitioner, 2 Pick. 567. 6 He is not allowed for sums paid on debts during the first year of his administration, though paid without knowledge that the estate was insolvent. Cobb V. Muzzey, 13 Gray, 57. 15* 174 PROCEEDINGS IN THE PROBATE COURTS. and with the amount of the allowances, if any, made by the court to the widow or minor children of the deceased. The balance thus exhibited remains in his hands until he is ordered by the court to distribute it among the creditors, Fimeral Charges and Expenses of the last Sickness. The executor or administrator is allowed in his account all reasonable sums paid for funeral expenses. The amount .to be allowed for such expenses must depend, in some de^ee, upon the condition of the estate. If the funeral was under the direction of the family of the deceased, and the estate is solvent, the sum asked for such charges is usually al- lowed ; but no extravagant expenses will be allowed as against the creditors of an insolvent estate.^ All expenses of the last sickness of the deceased paid by the adminis- trator are allowed in his account.^ Charges of Administration, Executors and administrators are allowed their reasonable expenses incurred in the execu- tion of their respective trusts, and such compensation for their services as the court in which their accounts are settled considers just and reasonable.^ 1 In McGlimsey's case (14 Serg. & Kawle, 64), the supreme court al- lowed $358.75 for funeral expenses, including a vault and tombstone. It was observed by the court : " The deceased had a good estate and no chil- dren ; and the widow, who was entitled to one half, wished to be liberal in honor of his memory. A handsome tombstone was erected over the vault in which the body was interred, and this was the principal article of ex- pense. But there was one article which should be rejected. I allude to a picture of the deceased, painted after his death. If the widow desired a memorial of this kind she should pay for it herself." A demand for mourning, furnished to the widow and family of the de; ceased, is not a funeral expense. Johnson v. Baker, 2 Carr. & Payne, 207; But see Wood's estate (1 Ashmead), and Flintham's appeal (11 Serg, & R. 16). 2 A testator at a distance from home during his last sickness, sent for his wife and heirs, but died before they arrived. The executor was allowed to charge in his account their expenses which he had paid to them. Jenni- son V. Hapgood, 10 Pick. 88. 3 Gen. Sts. c. 98, § 10. ACCOUNTS OF EXECUTORS, ADMINISTRATORS, &c. 175 Under the head of expenses of administration are in- cluded all sums which have been paid by the executor in the course of a faithful and prudent administration ; such as the expense of appraising the estate, of collecting the effects and paying the debts, of attending the probate and other courts upon business of the estate, of advertising as required by law or any order of the court, and sums paid for legal and other necessary assistance.^ The expenses of assigning dower, or making partition of land among the heirs or de- visees, are not charges of administration, and are not allowed in the administration account. As a general rule, the executor or administrator is not al- lowed interest on money advanced by him for the payment of debts due from the estate. It is no part of his duty to advance his own funds for that purpose -^ but if, not having assets of the estate in his hands, he advances his own money to redeem land of the deceased, mortgaged for less than its value, he is entitled to interest on the money advanced.** If judgment is rendered against an executor or adminis- trator for costs in a suit commenced or prosecuted by him in that capacity, the estate in his hands cannot be taken in execution therefor, but execution is awarded against him as for his own debt ; and the amount paid by him thereupon is allowed in his administration account, unless it appears to the probate court that the suit was commenced or prose- cuted unnecessarily or without reasonable cause.* But such costs are not allowed in the administration account, until 1 Administrator's charges for attending probate court at hearings in rela- tion to estates connected with that of his intestate, for inquiring and ascer- taining the existence of property in another jurisdiction supposed to belong to the estate, and for taking legal advice in respect to such property, al- though it could be administered only in the other jurisdiction, allowed. Wendell v. French, 19 N. H. 205. 2 Storer «. Storer, 9 Mass. 37. 3 Jennison v. Hapgood, 10 Pick. 102. 4 Gen. Sts. c. 98, § 13. Hardy ;;. Call, 16 Mass. 530. 176 PROCEEDINGS IN THE PROBATE COURTS. they have been actually paid by him. Their payment is a condition precedent to their allowance.^ Since the repeal of the statute allowing to executors and administrators a commission on the sums accounted for by them, there has been no rule common to all the probate courts in this State in regard to their compensation. The executor or administrator usually creditfe himself in his ac- count with such a sum as he considers himself entitled to receive, and the coUrt, in its discretion, allows the sum asked for, or a less sum, regard being had to the character of the services rendered necessary by the condition of the estate, and actually performed. An executor is sometimes entitled to credits in his ac- count that he could not claim as administrator of an intes- tate estate. It being his duty to administer according to law and the will of his testator, he may be called upon, in order to carry out the provisions of the will, to perform ser- vices and incur expenses that would be irregular and unne- cessary in a case of ordinary administration. For all such services faithfully performed and expenses properly incurred he is entitled to be allowed.^ 1 Thacher v. Dunham, 5 Gray, 26. 2 Unfaithful administration will not deprive an executor of his right to compensation for his services so far as they have been beneficial to the estate. Jennison v. Hapgood, 10 Pick. 112. When services not obviously alien to the administration have been ren- dered at the special request and advice of a party interested in the estate, he is estopped from objecting to the allowance of a just compensation for them in the settlement of the administrator's account. Wendell v. French, 19 N. H. 205. Upon a controversy between the administrator and the heirs, charges by him of time and money expended while endeavoring to effect a private settlement with them, are not proper items of charge against the estate as expenses of administration. Clark ». Clay, 11 Foster (N. H.), 393. Where an executor, to whom real estate is devised in trust, is authorized by the will to take down any part of the testator's buildings, and to rebuild, to erect additional buildings, and to hire money for the purpose of bettering ACCOUNTS OF EXECUTORS, ADMINISTRATORS, &c. 177 Loss on Sale of the Personal Estate. The executor or ad- ministrator is not required to sustain any personal loss in consequence of the decrease or destruction, without his fault, of any part of the estate. If he has sold it for less than the appraised value, he wiU be allowed in his account for the loss, if it appears that the sale was expedient and for the interest of all concerned in the estate ; ^ and he is en- titled to be allowed for the amount of any debts inventoried as due to the deceased, if it appears to the court that they remain uncollected without his fault.^ Allowances to the Widow amd -Minor Children. The exe- cutor or administrator is allowed in his account for aU sums paid by him, under order of the probate court, as allowances to the widow or minor children of the deceased ; but if he pays money for their support without being first authorized by the court, he makes the payment at his own risk.^ Debts due the Executor or Administrator from the deceased. If the executor or administrator is himself a creditor of the estate, he should procure the assent of the heirs, or other parties interested in the estate, to the allowance of his claim, before he presents his account to the probate court. If his claim is disputed by any person interested in the estate, he must file in the probate court a separate statement, set- ting forth distinctly and fully the nature and grounds of his claim ; and it may then be submitted under an order of the court to one or more arbitrators, to be agreed on by the claimant and the party objecting. The court has like power to discharge the rule by which the claim is referred, and to reject and disallow the award, or to recommit it to the arbi- trators, as may be exercised by the common law courts with the trust estate, he may advance his own money for the like purposes, and charge it in his general administration account. Watts v. Howard, 7 Met. 478. And see Wiggin v. Sweet, 6 Met. 194. 1 Gen. Sts. c. 98, § 2. 2 Ibid. § 6. 3 Washburn v. Hale, 10 Pick. 429; Brewster v. Brewster, 8 Mass. 131. 178 PROCEEDINGS IN THE PROBATE COURTS. regard to cases referred by a rule of those couHs. The award of the arbitrators, if accepted by the probate court, is final and conclusive. If the parties do not agree in the appointment of arbitra- tors, or if the award is not confirmed by the probate court, the judge will decide on the claim ; and if either party ap- peals from his decision to the supreme court of probate, either party or the court may have the claim submitted to a jury.i : If the claim of the executor or administrator results fronji a course of dealing, or involves mutual debts and creditsj the balance only is the actual debt, and the whole account on both sides must be examined, in order to ascertain that balance ; and, of course, all the items on both sides are put in issue.'^ The executor or administrator is entitled to interest on his claim only for such a length of time, after taking admin- istration, as is reasonably needed for the settlement of the estate.* It may be necessary for the executor or administrator to render more than one account of his administration of the estate committed to him. He is required to render an ac- count within one year after giving bond, and from time to time, as the condition of the estate may demand or the probate court may order, until the estate is fully settled. If he receives assets, though they come to his hands more than twenty years after the supposed final settlement and distribution of the estate, he is bound to account for them.* In stating any account after the first, he brings forward the balance of his last preceding account, and charges himself with the amount of all sums received by him not previously accounted for ; and asks to be allowed for the amount of 1 Gen. Ste. c. 97, §§ 26, 27. 2 Willey v. Thompson, 9 Met. 329. 3 Richmond, petitioner, 2 Pick. 567. 4 White v. Swain, 3 Pick. 365. ACCOUNTS OF EXECUTORS, ADMINISTRATORS, &c. 179 any additional payments made by him and expenses of administration. And he must annex schedules giving full details of such receipts and expenditures. FORM OF GUARDIAN'S AND TRUSTEE'S ACCOUNTS. The guardian or trustee presents his account in substan- tially the same form as that of an executor or administrator. He charges himself with the amount of the assets received bj' him, and asks to be allowed for the payments made by him and the charges of the trust. With the account must be filed a schedule stating the several sums received by him, the person of whom, and the time when, each sum was received ; a second schedule containing a fuU statement of the payments and charges ; and a third stating particularly the manner in which any balance remaining in his hands is invested. WITH WHAT THE GUARDIAN OR TRUSTEE IS CHARGEAAlE. # The guardian or trustee is required to charge himself with the value of the personal estate in his hands, according to the inventory ; with the g^in, if any, realized from its sale ; with the rents and profits of the real estate belonging to the ward, or cestui que trust; and with all sums received by him in his ofiicial capacity, from whatever source. He is held strictly to account for the interest arising from the trust fund. The general rule is that he is bound to take the same care of the trust fund as a discreet and prudent man would take of his own property ; to manage it for the exclusive benefit of the ward or cestui que trust, and to make no profit or advantage out of it for himself; to keep it at all times, when practicable, profitably invested, and punctually to account for the income as well as the principal. If any of these duties are neglected, the loss resulting from the neglect must fall upon him, and not on the ward, or cestui que trust. Hence, if through gross carelessness or igno- 180 PROCEEDINGS IN THE PROBATE COURTS. ranee he makes a bad investment, and thereby loses the whole or part of the trust fund, he will be held to replace it, and must charge himself with it in his account.^ But Ife is not liable for losses occasioned by bad investments, pro- vided he acts in good faith, and with sound discretion.^ If he wholly neglects to invest the trust funds, he is charge- able with the income that would have been derived from a proper investment ; and in cases of gross neglect, or if he employs the money in his own business, he is liable to be charged with compound interest.^ He may riot be charge- able with interest from the date of his appointment, or of his receipt of the money. He is entitled to a reasonable time in which to make the investment, and the length of. 1 Harding v. Lamed, 4 Allen, 426. 2 A loan by a guardian, upon the promissory note of the borrower, pay- able in one year with interest, secured by a pledge of shares in a manufac- turing corporation, the amount of the loan being about three quarters of the paB: value of the shares, and less than three quarters of their market- value, was held to be an investment made with sound discretion ; and al- though the borrower failed before the note became due, and the shares fell lin value below the amount of the note, the guardian was held not to he responsible for the loss. And the guardian having sold the shal'es and taken the purchaser's note for the price, with two indorsers, and the notes of another person secured by a mortgage on land, he was held to have exercised a sound discretion, and not to be responsible for a loss occasioned by the failure of all the par- ties to the notes, and a fall in the value of the mortgaged premises. Lovell V. Minot, 20 Pick. 116. And see Harvard College vt Amory, 9 Pick. 459. Thompson v. Brown, 4 Johns. Ch. 628. 3 Boynton v. Dyer, 18 Pick. 1. Where the guardian had received rents and income from stocks, and had rendered no account for many years, it was ordered that an account should be settled with a rest for every year, and the balance thus struck carried forward, to be again on interest when- ever the sum should be so large that a trustee acting faithfully and dis- creetly would have put it in a productive state; and $500 was held to be such a sum. Bobbins v. Hayward, 1 Pick. 528, note. Simple interest only was allowed on a note due on demand from the guardian to the ward, the note being so small that it was not a sufficient ob- ject to make a new investment with the interest. Pay v. Howe, 1 Pick. 827. ACCOUNTS OF EXECUTORS, ADMINISTRATORS, &c. 181 time that will be deemed reasonable for that purpose must depend upon the condition of the piroperty at .the time he received i^, his opportunity of making investments, or other circumstances controlling his proceedings.^ If the guardian is also executor of the will in which a legacy is given to his ward, he cannot charge himself in his guardianship account with the amount of the legacy until, by the terms of the will, it becomes payable ; until that time he must account for it as executor. This distinction, while it does not affect his personal liability, may be of impor- tance to his sureties.^ WHAT IS ALLOWED TO THE GUARDIAN OR TRUSTEE. The guardian is allowed to credit himself with all sums properly paid by him for the support and education of his ward. He may expend a part or the whole of the income of the ward's estate for these purposes, as occasion requires, and if the income is not sufficient, the principal ; but such expenses must be consistent with a prudent management of the estate. If the ward is a minor, and has a father living, the expense of his maintenance and education is to be paid by the father, unless the ward's property is sufficient to sup- port him in a manner more expensive than his father can reasonably afford ; in which case the expense of the main- tenance and education of the minor may be defrayed out of his own property, in whole or in part, as the probate court deems reasonable.^ K the ward is a married woman, the guardian cannot expend her estate for her support, un- less authorized by the court, on account of the inability of 1 In Boynton v. Dyer (18 Pick. 1), one year was deemed a reasonable time. In Clarkson v. Depeyster (2 Wend. 77), six months was held suffi- cient; and in Schieffelin «. Stewart (1 Johns. Ch. 620), two years were allowed. 2 Livermore v. Bemis, 2 Allen, 394. 3 Gen. Stg. c. 109, § 21. 16 182 PROCEEDINGS IN THE PROBATE COURTS. the husband suitably to maintain her and her family, or for other cause •which the court deems reasonable.^ If the guardian has advanced his own money for the pay- ment of debts and expenses of his ward, under circum- stances that render that course of proceeding proper, he is entitled to interest on the money so advanced.^ Guardians and trustees are allowed for all necessary ex- penses incurred in the execution of their respective trusts, and such compensation for their services as the court may consider just and reasonable.^ 'If the same person is guardian of two or more wards, although they may be equally interested in the property ia his hands, he should render a separate account of his guar- dianship of each, and is bound to account whenever either of them arrives at full age. ALLOWANCE OF PROBATE ACCOUNTS. The administrator or other party accounting wiU avoid some delay and expense if, before presenting his account to the probate court, he submits it to the heirs, or other parties interested, and obtains their assent in writing to its allow- ance. Such assent may be conveniently indorsed on the account. If they do not so express their assent, the court, before proceeding to pass upon the account, will order such notice to be given to them as the circumstances of the case require. Guardianship accounts, rendered before the ward becomes of age, are not allowed, unless the next of kin assent thereto, or are cited, and a guardian ad litem is also 1 Gen. Sts. c. 108, § 18. 2 Hayward v. Ellis, 13 Pick. 272. ' 3 Reasonable expenses incurred by the guardian of an insane person, in resisting the application for a revocation of the guardianship on the ground of his restoration to sanity, when it admits of any ■ reasonable doubt, and the guardian appears to have incurred the expenses in good faith, for the pur- pose of a proper inquiry into the ward's condition, are to be allowed the guardian in his account. Palmer v. Palmer, 1 Chandler (N. H.), 418. ACCOUNTS OF EXECUTORS, ADMINISTRATORS, &o. 183 appointed, who examines the account and the vouchers; nor after the ward becomes of age, unless he assents thereto or is cited. Any person interested in the estate may appear and ob- ject to the allowance of the account, either that the admin- istrator or other trustee has not charged himself with all the assets that have come to his hands, or that he has cred- ited himself with sums that ought not to have been paid from the estate, or that he claims a larger sum for compen- sation than he is justly entitled to receive, or because of any overcharge or omission in his account. The executor. or guardian is not only required to make oath to the correct- ness of his account, but to answer specifically all questions concerning it.^ And the party at whose instance interroga- tories have been proposed to him touching his account, has a right to offer evidence to disprove his answers.^ The court, upon the hearing, may order the accountant to charge himself with sums not included in his account, if it appears that he has received them in his official capacity, and may disallow any of the items with which' he credits himself; and the decree of the court allowing, the account, as it may be finally adjusted, is conclusive, unless appealed from. The supreme court will not, as a court of chancery, resettle an administration account alleged to have been fraudulently settled in the probate court ; ^ nor can the de- cree of the probate court, duly allowing the final account of an administrator, be impeached in an action at law against him upon a claim against the deceased.* The person ag- grieved by the decree can take his objections to the supreme court of probate only by appeal. If the proceedings in the 1 Gen. Sts. c. 98, § 9 ; Sigourney v. Wetherell, 6 Met. 553 ; Wade v. Lobdell, 4 Cush. 510. ^ Higbee v. Bacon, 8 Pick. 484. 3 Jennison v. Hapgood, 7 Pick. 1 ; Sever v. Eussell, 4 Cush, 513. * Parcher v. Bussell, 11 Cush. 107. 184 PROCEEDINGS IN THE PROBATE COURTS. probate court were such that they may be treated as a nul- lity on account of fraud, the administrator may be cited to account anew. The accounts of two or more joint executors, administra- tors, guardians, or trustees, may be allowed by the probate court upon the oath of one of them.^ The account must be sworn to in probate court, unless the person accounting is unable, by reason of sickness or otherwise, to attend per- sonally ; in which case the judge is authorized to administer the oath out of court, or to commission a justice of the peace to administer it. And a certificate of the oath, with the account and vouchers produced therewith, and the com- mission, if any, must be returned into the probate office, and there filed and recorded.^ WHEN SETTLED ACCOUNTS MAY BE OPENED. " When an account is settled in the absence of any per- son adversely interested, and without notice to him, the account may be opened, on his application at any time within six months thereafter ; and upon the settlement of any account by an executor or administrator, all his former accounts may be so far opened as to correct any mistake or error therein ; ^ except that any matter in dispute between two parties, which had been previously heard and deter- mined by the court, shall not again be brought in question by either of the sarrte parties without leave of the court." * To avail himself of the exception provided by the above section, the administrator should take care that any matter heard and determined should be so stated as to appear in the decree of the court allowing his account. If his account is disputed, he should call upon the party objecting to spe- cify in writing the items to which he objects. His account being then settled, the entire proceedings will appear upon 1 Gen. Sts. c. 101, § 6. a Ibid. c. 117, § 27. 3 Wiggin V. Sweet, 6 Met. 194. « Gen. Sts. c. 98, § 12. ACCOUNTS OF EXECUTORS, ADMINISTRATORS, &c. 185 the records of the court, and no doubt can afterwards arise as to the particular items disputed and determined. Even then, by leave of the court, the account may be opened, though undoubtedly the court would be cautious in exercis- ing such a power in regard to a subject once controverted and once judicially settled.^ Where an account has been settled for many years, the heirs or other parties concerned acquiescing in the settle- ment, it will not be opened on their application unless good cause is shown for the delay, but the administrator or other trust officer may be cited at any time to account for assets not included in his settled accounts.^ 1 Field V. Hitchcock, 14 Pick. 405 ; Smith v. Button, 4 Shepley, 308, 2 An administrator settled his first account in 1818, and a second account in 1822; but in 1825, on the petition of the residuary legatee, a rehearing was had in the probate court, and the administrator was ordered to credit the estate with an additional sum. From this decree the legatee appealed, on the ground that a larger sum should be credited, but failed to prosecute the appeal, and it was dismissed. The legatee thereupon demanded pay- ment of the administrator of the sum so ordered, to be credited, and upon his refusal to pay brought an action against him, in which judgment was rendered, in 1835, in favor of the administrator, on the ground that the decree had been vacated by the appeal. In 1836, the legatee fileda peti- tion in the probate court for a second rehearing, on the ground that the account had been settled fraudulently, but the petition was dismissed by that court in 1837; on appeal, it was ordered that unless the respondent should pay to the legatee the amount he had been ordered to credit the estate in 1825, with interest from the time of the demand and costs, the prayer of the petition should be granted. Davis r. Cowden, 20 Pick. 610. See Sever v. Russell, 4 Cush. 518. 16* CHAPTER XVI. DESCENT AND DISTRIBUTION — ADVANCEMENTS. Descent, or hereditary snccession, is the title whereby a person, on the death, of his ancestor, acquires his estate by right of representation, as his heir. DESCENT OF REAL ESTATE. The ninety-first chapter of the General Statutes, which prescribes the general rules regulating the descent of intes- tate estates, provides that : " When a person dies seised of land, tenements, or heredit- aments, or of any right thereto, or entitled to any interest therein, in fee simple or for the life of another,' not having lawfully devised the same, they shall descend, subject to his 1 This description of the real estate is so framed as to include not only lands of which the ancestor was actually seised, but also remainders and reversions, and the right to lands of which he had been disseised, or in any other way ousted. Com. Rep. 1834, note to c. 61. Contingent interests, both in real and personal estate, are transmissible like vested interests. Winslow v. Goodwin, 7 Met. 363 ; Dalton v. Savage, 9 Met. 28. By a devise of land in trust to the separate use of a married woman, her heirs and assigns, to be managed and invested under her direction, and the income, or, if she require it, the principal, to be paid to her ; and upon the death of her husband, the whole property to be conveyed to her in fee sim- ple ; and upon her death, to be conveyed to such persons as she may ap- point, or, on failure of such appointment, to her children ; the children, on the death of their mother, without having made such appointment, take as purchasers under the will and not by descent from her. Hubbard v. Eaw- son, 4 Gray, 242. Real estate held by an executor or administrator in mortgage, or on exer cution for a debt due the deceased, is considered personal assets in his hands, and if not sold by him or redeemed does not descend to the heirs as real estate, but is assigned and distributed to the same persons and in the same DESCENT AMD DISTRIBUTION — ADVANCEMENTS. 187 debts (except as provided in chapter one hundred and four^), in manner following : — " First. In equal shares to his children and the issue ^ of any deceased child, by right of representation; and .if there is no child of the intestate living at his death, then to all his other lineal descendants; if all the descendants are in the same degree of kindred to the intestate, they shall share the estate equally ; otherwise, they shall take according to the right of representation ; " Second. If he leaves no issue, then to his father ; " Third. If he leaves no issue nor father, then in equal shares to his mother, brothers, and sisters, and to the chil- dren of any deceased brother or sister by right of repre- sentation ; " Fourth. If he leaves no issue, nor father, and no brother nor sister, living at his death, then to his mother, to the exclusion of the issue, if any, of deceased brothers or sisters ; " Fifth. If he leaves no issue, and no father, mother, brother, nor sister, then to his next of kin in equal degree ; except that when there are two or more collateral kindred in equal degree, but claiming through different ancestors, those who claim through the nearest ancestor shall be preferred to those claiming through an ancestor who is more remote : provided; " Sixth. If a person dies' leaving several children, or leaving one child and the issue of one or more others, and any such surviving child dies under age and not having been married, all the estate that came to the deceased child by inheritance from such deceased parent, shall descend in equal shares to the other children of the same parent, and proportions as if it had been part of the personal estate of the deceased. Gen. Sts. c. 96, § 14. 1 Relating to homestead rights. 2 The word " issue," as applied to the descent of estates, includes all the lawful lineal descendants of the ancestor. Gen. Sts. c. 3, § 7, cl. 9. 188 PROCEEDINGS IN THE PROBATE COURTS. to the issue of any such other children who have died, by right of representation ; " Seventh. If at the death of such child who shall have died under age and not having been married, all the other children of his said parent are also dead, and any of them have left issue, the estate that came to such child by inherit- ance from his said parent shall descend to all the issue of the other children of the same parent ; and if all the issue are in the same degree of kindred to the child, they shall share the estate equally ; otherwise they shall take accord- ing to the right of representation ; [The sixth and seventh clauses modify the antecedent rule under certain circumstances. The share of the child who dies under age and unmarried, goes exclusively to the surviving issue of the deceased parent. The distribution first made of the parent's estate is ineffectual as to the share of the child who has not lived to dispose of it, and that share is considered as having reverted to the parent's estate. It is considered, not as the estate of the child, but as estate of the parent remaining to be distributed ; and it descends to the children or grandchildren of the parent in like manner as if he had not died until after the death of the child. This provision applies only to estate inherited from the parent. Estate devised to the child by the parent descends to the heirs of the child under the general rule regulating the descent of intestate estates.] " Eighth. If the intestate leaves a widow and no kindred, his estate shall descend to his widow; and if the intestate is a married woman and leaves no kindred, her estate shall descend to her husband ; " Ninth. If the intestate leaves no kindred, and no widow or husband, his or her estate shall escheat to the common- wealth." 1 1 The statute provisions regulating the descent of intestate estates do not affect the title of the husband, as " tenant by the curtesy." Gen. Sts. c. 91,§11. DESCENT AND DISTRIBUTION — ADVANCEMENTS. 189 AS TO ILLEGITIMATE CHILDREN. "An illegitimate child shall be heir of his mother and any maternal ancestor, and the lawful issue of an illegitimate person shall represent such person and take by descent any estate which the parent would have taken if living. " If an illegitimate child dies intestate, without lawful issue, his estate shall descend toJiis mother. " An illegitimate child whose parents have intermarried and whose father has acknowledged him as his child, shall be considered legitimate." RIGHT OF REPRESENTATION. Inheritance or succession, " by right of representation," takes place when the descendants of a deceased heir take the same share or right in the estate of another person that their parent would have taken if living.^ If the ancestor leaves children, and there is no living issue of any deceased child, they wiU share his estate equally ; if he leaves grand- children only, they will take it in equal shares ; and if he has no children or grandchildren living at the time of his death, his greai>grandchildren, if any, being his lineal descendants, and all of an equal degree of consanguinity to him, wiU take the inheritance equally. _ But when the lineal descendants of the ancestor, living at the time of his death, are not of an equal degree of consan- guinity to him, — as, for instance, when he leaves one son and two or more grandchildren who are the children of a deceased son, — the rule of representation applies. The son, in such case, takes half the estate, and the children of the deceased son represent their father, and, together, take the other half, which is the same share that their father would have taken if living. Or suppose the ancestor leaves B., his 1 Gen. Sts. c. 91, § 12. 190 PROCEEDINGS IN THE PROBATE COURTS. only surviving son, and D. and E., grandsons by his de- ceased son C, and F. and G., great-grandsons by H., a daughter of C, H. being also dead. Here would be lineal descendants living in three different degrees of consan- guinity, namely, a son, two grandsons, and two great- grandsons : B., the son, would take half the estate ; D. and E., tWo of the three children of C, would take two thirds of the other half; and F. and G. \ ADOPTION OP CHILDREN. Section 1. Any inhabitant of this State may petition the probate court in the county of his residence for leave to adopt a child not his own, and, if desired, for a change of the child's name ; but the prayer of such petition, by a person having a husband or wife, shall not be granted, unless the husband or wife joins therein. Sect. 2. The parents of the child, or the survivor of them, shall, except as herein provided, consent in writing to such adoption. K neither parent is living, the guardian of the child, or, if there is no guardian, the next of kin in this State, may give such consent; or, if, there is no next of kin, ^;he court may appoint some suitable person to act in the proceedings as next friend of the child, and to give or with- hold such consent. Sect. 3. K either parent is insane, or imprisoned in the State prison or a house of correction, under a sentence for a term not less than three years, or has wilfully deserted and neglected to provide proper care and maintenance for the child, for one year next preceding the time of filing the petition, the court shall proceed as if such parent were dead, and in its discretion may appoint some suitable per- son to act in the proceedings as next Mend of the child, and give or withhold the consent aforesaid. Sect. 4. If a parent does not consent to the adoption of his child, the court shall order a copy of the petition and ADOPTION OF CHILDREN AND CHANGE OF NAME. 245 order thereon to be served on him personally, if found in the State, and if not, to be published once a week, for three successive weeks,, in such newspaper printed in the county as the court directs, the last publication to be at least four weeks before the time appointed for the hearing. Like notice shall also be published when a child has no parent living, and no guardian nor no next of kin in this State. The court may order such further notice as it deems neces- sary or proper. Sect. 5. If the child is of the age of fourteen years, or upwards, the adoption shall not be made without his consent. Sect. 6. Ifj upon such petition, so presented and con- sented to, the court is satisfied of the identity and relations of the persons, and that the petitioner is of sufficient ability to bring up the child, and furnish suitable nurture and edu- cation,. having reference to the degree and condition of its parents j and that it is fit and proper that such adoption should take effect^ a decree shall be made setting forth the facts, and ordering, that from the date of the decree the child shall, to all legal intents and purposes, be the child of the petitioner. Sect. 7. A child so adopted shall be (j^emed, for the purposes of inheritance by such child, and all other legal consequences and incidents of th^ natural relations of par- ents and children, the child of the parents by adoption, the same as if he had been born to them in lawful wedlock ; except that he shall not be capable of taking property ex- pressly limited to the heirs of the body or bodies of the parentSj by adoption, nor property &om the lineal or col- lateral kindred of such parents' by right of representation. Sect. 8. The parents of such child shall be deprived by the decree of all legal rights as respects the child ; and the child shall be freed from all obligations of maintenance and obedience as respects the parents. _. 21 * 246 PROCEEDINGS IN THE PROBATE COURTS. Sect. 9. Any petitioner may appeal to the supreme judicial court from the decree of the probate court on such petition, in like manner as appeals may be from other de- crees of that court ; and any child made the subject of such petition, may by a next friend appeal in like manner ; but no bond shall be required or costs awarded against such child or next friend. Sect. 10. A parent who has not, before the hearing upon a petition for the adoption of his child, had personal notice thereof, may, at any time within one year after actual notice, apply to the supreme judicial court to reverse the decree. Said court, after due notice, may in its discretion reverse the same, if it appears that any of the material allegations in the petition were not true. CHANGE OF NAMES. Sect. 11. Applications for change of names of persons may be heard and determined by the probate courts in the several counties. No lawful change of the name of a per^ son, except a woman upon her marriage or divorce, shall be made in this State, unless for sufficient reason consistent with the public interest and satisfactory to said court in the county where ^e party resides. Sect. 12. Before decreeing a change of name, except as is provided in the following section, the court shall require public notice of the application therefor to be given, that all persons may appear and show cause, if any they have, why the same should not be granted. The court shall also require public notice to be given of the change decreed, and on return of proof thereof may grant a certificate, under the seal of the court, of the name the party is to bear, and which shall thereafter be his legal name. Sect. 13. If, in a petition for the adoption of a child, a change of the child's name is requested, the court, upon decreeing the adoption, may also decree such change of ADOPTION OF CHILDREN AND CHANGE OF NAME. 247 name, and grant a certificate thereof, without the notices required by the preceding section. Sect. 14. Each judge shall annually, in the month of December, make a return to the office of the Secretary of the Commonwealth of all changes of names made in his court under this chapter ; and the same shall be published in a tabular form with the statutes of the following year. The petitioner for leave to adopt a child should set forth the name and residence of the child and the date of his birth. If the petitioner has a husband or wife, the prayer of the petition will not be granted unless the husband and wife join therein. Application for a change of the child's name may be included, if desired, in the same petition. The consent of each parent of the child, if living, must be obtained, unless he or she is insane, or imprisoned in the State prison or house of correction, under sentence for three years, or has wilfully deserted and neglected to provide proper care and maintenance for the child one year next preceding ; in which case, as well as when neither parent is living, and the child h^s no guardian and no next of kin in the State, some person should be appointed by the court to act as next friend of the child, and notice should also be given of the petition. If neither parent is living, the guar- dian, and if there is no guardian, the next of kin in this State, may give the consent required. If the child is of the age of fourteen years or upwards, his consent to the proposed adoption must be obtained, and should be appended to the petition. The petitioner for leave to change his name should state the date of his birth, the place or places in which he has for- merly resided, his occupation, and the name he wishes to take. Public notice of the petition must be given in all cases. If the change prayed for is decreed, a copy of the decree must be published, and upon return of proof of pub- lication, the court issues a certificate of the change of name. CHAPTER XXII. RELEASE OF DOWER AND HOMESTEAD EIGHTS BY GUARDIANS OF Insane married women. When a married woman is, by reason of insanity, incom- petent to release her right of dower, or right of homestead, in her husband's real estate, a guardian may be appointed for her,^ and the probate court may authorize her guardian to release her right of dower or of homestead. The proceed- ings in the probate court in such cases, are detailed by the statute. (Gen. Sts. c. 108, § 20, et seq.) Sect. 20. When the husband of an insane woman is de- sirous of conveying any of his real estate, whether absolutely or by way of mortgage, he may by petition, describing the same, ask leave of the probate court that the dower of his wife, or any estate of homestead therein, may be released, setting forth the facts and reasons why his prayer should be granted.^ After notice in some newspaper to all persons interested, and a hearing thereon, the court, if satisfied that such dower or estate of homestead ought to be released, shall authorize her guardian to make such release, by join- ing in» any deed of conveyance, to be made within five years thereafter, either by the husband or any trustee for him, and whether such deed pass the whole or only separate parcels or lots of said real estate. i Sect. 21. If the guardian is so authorized to release the dower of his ward, and the probate court deems it proper that some portion of the proceeds of such real estate, or of any sum loaned on mortgage thereof, should be reserved for 1 Ante, page 87.- 2 See Appendix, form Nos. 89, 90. RELEASE OF DOWER AND HOMESTEAD EIGHTS, &c. 24S the use of such married woman, the court may order that a certain sum, not exceeding thirty-three and one third per cent, of the net amount of such proceeds or sum actually to be realized from such sale or mortgage, exclusive of any in- cumbrance then existing on the estate, shall be set aside and paid over to such, guardian, to be invested and held by him for her benefit, if she survives her husband ; the income of such sum to be recei'ved. and enjoyed by the husband dur- ing the life>^of his v?ife, or until otherwise ordered by the court, upon good cause shown ; and the principal to be his, andito be paid over, to, him, if he survives her. Sect. 22. If the guardian is so authorized to release the estate of homestead, and the probate court deems it proper that some portion of the proceeds of such real estate, or of any sum loaned on mortgage thereof, should be reserved for the use of such married woman, the court may order that a certain sum, not exceeding eight hundred doUars, be set aside and paid over to such guardian, to be invested in a homestead, and held by him for the benefit of such married woman, if she sunrives her husband ; the rent or use there- of to be received and enjoyed by the husband during the life of his wife, or until otherwise ordered by the court, upon good cause shown ; and the homestead to be his, and to be conveyed to him by said guardian, if he survives her. Sect. 23. When the husband of an insane woman has conveyed any real estate in trust, without the power of revocation, and in such conveyance provision is made for his wife, which, in the opinion of the probate court, to be certified on petition, notice, and hearing, is sufficient in Ueu of dower therein, the trustee in such conveyance shall be authorized to pass title to such real estate free from all right of dower. Sect. 24. If, in the opinion of the probate court, certified as aforesaid, such provision is sufficient in lieu of dower of such insane woman in all the real estate owned by her hus- 250 PROCEEDINGS IN THE PROBATE COURTS. band at the date of the petition, or in any particular per- tions thereof, her guardian shall be authorized to release her dower in aU such real estate, or such particular portions, by joining in a deed of conveyance of the same. Sect. 25. All proceedings in the probate court, under the five preceding sections, shall be had in the county where the husband of the insane woman resides, if an inhabitant of this State, and if not, then in some county where any of his real estate is situated ; and a certified copy of all final orders or decrees therein shall be recorded in the registry of deeds in every county or district in which such real estate ia situate." APPENDIX. Printed forms of petitions, &c., adapted to most of the proceed- ings in the probate courts, are furnished at the probate offices to persons having occasion to use them. The forms contained in this Appendix generally relate to proceedings for which blanks are not so furnished. Some of the printed blanks, however, such as petitions for the probate. of wills, and for the appointment of administrators and guardians, are necessarily very general in form, and are to be variously filled, as fliay be required by the facts of each case. Forms of these petitions are introduced here, adapted to supposed cases, showing the manner in which they are to be filled under the different circumstances that may exist so far as they can be antici- pated. The printed forms now in use were prepared by a committee of the judges of the probate courts, and have been recognized by an order of the Supreme Judicial Court as standard forms, to be adopted and used in all the probate courts of this State. They should, there- fore, be used in all the proceedings to which they apply. FOEMS OF PETITIONS, &c. [No. 1.] Petition for Prolate of Will presented by the Executor, To the Honorable the Judge of the Probate Court in and for the county of M. ■ Kespectfiilly represents A. B., of L., in the county of M., that C. D., who last dwelt in S., in said county of M., died on the day of , in the year of our Lord one thousand eight hundred and , possessed of goods and estate remaining to be administered, 252 • APPENDIX. leaving a widow whose name is H. D., and as his only heirs at law and next of kin, the persons whose names, residence, and relationship to the deceased are as follows, viz. J. D. and S..D., children of said deceased. That said deceased left a Will (and codicil, if such is the fact,) herewith presented, wherein your petitioner is named executor. Wherefore your petitioner prays that said will may be proved and allowed, and letters testamentary granted to him. Dated this day of , A. D. 18 — . A.B. [No. 2.] Assent of Persons interested to be annexed to the foregoing Petition. The. undersigned, being all the heirs at law and next of kin, and the only parties interested in the foregoing petition^ desire the same may be granted, without further notice. • J. D. S. D. H. D. [No. 3.] Petition for Probate of a Will presented by a Person other the Executor. To ^he Honorable the Judge of the Probate Court in and for the county of M. Respectfully represents II. D., of G., in the county of B., that C. D., who last dwelt in S., in said county of M., died on the day of , in the year of our Lord one thousand eight hundred and — , possessed of goods and estate remaining to be administered, leaving no widow, and as his only heirs at law and next of kin the- persons wiose names, residence, and relationship to the deceased are as follows, viz. J. D., of , in the State -of New York, C. D., of said C, and H. D., your petitioner, all of them brothers of said deceased. APPENDIX. 253 That said deceased left a will (and codicil) herewith presented, wherein no person is named executor ; (or, A. B., of , is named executor but that said A. B. has deceased ; or, refuses to accept said trust, as by his renunciation in writing hereto annexed fully appears ; or, is a minor, and therefore incompetent to administer, &c.) Wherefore your petitioner prays that said will may be proved and allowed, and letters of administration with the will annexed granted to him. Dated this day of , A. D. 4^ — H. D. Assent of Pertons interested to be annexed to the foregoing Petition. The undersigned, being all the heirs at law and next of kin, and the only parties interested in the foregoing petition, desire the same may be granted, without further notice. J. D. C. D. H. D. [No. 4.] Refusal of ExectUor to accept the Trust. To the Honorable the Judge of the Probate Court in and for the county of H. The undersigned, who is named in the last will and testament of C. D., late of S., in the county of H., deceased, to be the executor thereof, respectfully represents that he declines to accept said trust, and prays that administration with the yn\[ annexed of the estate of the said C. D. may be granted to the , person or persons by law entitled to the same, (or, to E. F., of , &c.) Dated this day of , A. D. 18—. A. B. 22 254 APPENDIX. [No. 5.J Summons for Attesting Witnesses. Commonwealth of Massachusetts. ss. To A. B., S. E., and G. F., all of S., in said county, Greeting : — You are hereby required, in the name of the Commonwealth of Massachusetts, to make your appearance at the probate court to be holden at , in said county, on the day of , then and there to give evidence of what you know relating to the execution of a certain instrument purporting to be the last will and testament of C. D., late of S., in the county of aforesaid, deceased. Hereof fail not, as you will answer your default under the pains and penalty of the law in that behalf provided. Dated at , in said county of , this day of , in the year of our Lord one thousand eight hundred and . J. S., Justice of the Peace. [No. 6.] Petition for Probate of a Witt accidentally destroyed. To the Honorable the Judge of the Probate Court in and for the county of . Respectfully represents A. B., of S., in said county of , that ' C. D., who last dwelt in said S., died on the day of , in the year of our Lord one thousand eight hundred and , possessed of goods and estate remaining to be administered, leaving a widow whose name is H. D., and as his only heirs at law and next of kin the persons whose names, residence, and relationship to the deceased are as follows, viz. L. D. and J. D., both of said S., children of said deceased. That said deceased left a wUl, wherein your petitioner was named executor ; that said will was not revoked by said C. D., and was in his possession at the time of his death, but that since the death of said C. D., to wit, on the day of last past, the said will was accidentally burnt and destroyed. APPENDIX. 255 Wherefore your petitioner herewith presents a true and exact copy of said will destroyed as aforesaid, being the written paper hereto annexed marked A, and prays that said last will of said C. D. as written and expressed in the said paper marked A, may be proved and allowed, and letters testamentary granted to him. Dated this day of , A. D. 18—. A, B. Assent of Persons interested to be annexed to the foregoing Petition. The undersigned, being all the heirs at law and next of kin, and the only parties interested in the foregoing petition, desire the same may be granted, without further notice. J. D. L. D. H. D. [No. 7.] Decree admitting to Probate a Will accidentally destroyed. ss. At a probate court holden, &c. On the petition of A. B., of S., in the county of , represent- ing that C. D., late of said S., deceased, left a will executed in due form of law, and that said will was accidentally destroyed after the death of said C. D., and that the paper writing annexed to said peti- tion marked A, is a true copy of said will, and praying that the will of said C. D., as written and expressed in said paper marked A, may be proved and allowed, and letters testamentary issued to him, the executor therein named; and the heirs at law, next of kin, and all other persons interested having been duly notified according to the order of court to appear and show cause, if any they have, against the same. And it appearing that said C. D. did legally execute a wUl, of which the said paper marked A is a tru^copy, and that said testator was, at the time of making the same, of full age and sound mind, and that said will was accidentally destroyed after the death of said C. D., and that said petitioner is a competent person to be appointed to said trust. 256 APPENDIX. It is therefore decreed, that the will of said deceased, as written and expressed in said paper marked A, be approved and allowed as his last will and testament, and letters testamentaiy be issued to said petitioner, he first giving bond with sufficient sureties for the due performance of said trust. M. S., Judge of Probate Gourt. [No. 8.] Petition for Probate of a IfuncypcUive WiU. To the Honorable the Judge of the Probate Court in and for the county of . EespectfuUy represents A. D., of, &c., that C. D., who last dwelt in , in said county of , died at , on the day of , in the year of our Lord one thousand eight hundred and , pos- sessed of goods and estate remaining to be administered, leaving a widow, and as his only heirs at law and next of kin the persons whose names, residence, and relationship to the deceased are as fol- lows, viz. &c.,\&c.; that said C. D., at the time of his death, was a mariner at sea, on board the ship , in the course of a voyage from to (or, was a soldier in actual service, in the regiment, &c.') ; that while on such voyage, (or, in such actual ser- vice,) said deceased made a nuncupative will, in the presence and hearing 6f E. F. and Gr. H., of, &c., whereby he disposed of his wages and other personal estate in the manner following, (or, as is fuUy set forth in the paper hereto annexed). Wherefore your petitioner prays that said nuncupative will may be proved and allowed, and letters testamentary issued to him, the executor therein named. Dated, &c. A. D. [No. 9.] Decree admitting Nuncupative WiU to Probate. At a probate court holden, &c. On the petition of A. D., of, &c., praying that the nuncupative will APPENDIX. 257 •of C. D., late of , in said county of , deceased, may be proved and allowed, and letters testamentary issued to him the exec- utor therein named, and the heirs at law, next of kin, and all other persons interested, having been duly notified according to the order of court, to appear and show cause, if any they have, against the same ; and it appearing by the testimony in court of E. F. and G. H., of &c., that said C. D., at , on the day of , A. D. 18 , in their presence and hearing, did declare and pronounce- the following words, to wit : &c., &c. ; and it further appearing that said C. D., at the time of declaring and pronouncing the same, was a mari- ner at sea, and on a voyage from to , and was of sound mind, and that, by the words so declared and pronounced, the said C. D. intended to make a testamentary disposition of the personal estate therein described, and that said petitioner is a competent per- son to be appointed to said trust. It is therefore decreed, that said testamentary words be approved and allowed as the nuncupative will of said deceased, and letters tes- tamentary be issued to said petitioner, &c. J. S., Judge of Probate Court. [No. 10.] Petition that one having' Custody of a Will may he cited to deliver it into the Probate Court. To the Honorable the Judge of the Probate Court for the county of— . Respectfully represents A. B., of S., in said county, that C. D., late an inhabitant of said S., has lately, to wit, on the day of last past, deceased ; that the said C. D., at some time previous to his death, made and executed in due form of law his last will and testament, and gave the same to the custody of one T. T., of said S. ; that said will is now in the custody of said T. T., and that said T. T. has had notice for more than thirty days of the death of said C. D,, but has neglected and still neglects to deliver the same into the probate court, or to the executors named in said will, as by law he is required to do; that your petitioner has reason to believe, and does believe, that he is made a legatee in and by said will. He therefore 22* 258 APPENDIX. prays that said T. T. may be cited to deliver said will into Ihe pro- bate court, and that such further proceedings may be had in the pr6n- ises as law and justice may require. Dated this day of , A. D. 1861. A. B. [No. ll.J Complaint against one suspected of retaining or concealing a Witt, To the Honorable the Judge of the Probate Court for the county of . A. B., of S., in said county, on oath complains that she has cause to believe, and does believe, that T. T., of said S., has retained and concealed, and is now retaining and concealing, with intent to hinder and prevent the probate thereof, a certain instrument made and exe- cuted in due form of law by C. B., late of said S., deceased, as and for his last will and testament (or, that T. T., J. T., and D. T., all of said S., have combined and conspired among themselves, and are now so combined and conspired, to retain and conceal, with intent, &c.) ; that your complainant is the widow of said C. B., and is interested in the estate of said deceased. Wherefore she prays that said T. T. may be cited to appear and answer to this complaint, and that such further proceedings may be had relative thereto as the law requires. A. B. , ss. Subscribed and sworn to this day of , A. D. 18 — , before me, L. N., Justice of the Peace, [No. 12.] Citation on the foregoing Complaint. Commonwealth of Massachusetts. Probate Court. To T. T., of S., in said county. Whereas, complaint on oath has been made to said court by A. B., of said S., who claims to be interested- in the estate of C. B., late of said S., deceased, that she has reason to believe, and does believe, that APPENDIX. 259 you have retained and concealed, and are now retaining and conceal- ing, with intent to hinder and prevent the probate thereof, a certain instrument made and executed by said C. D. in due form of law as and for his last will and testament. Tou are hereby cited to appear at a probate court to be holden at , in and for said county of , on the day of next, at o'clock in the forenoon, to be then and there examined on oath upon the matter of said complaint. And said A. B. is hereby directed to cause said T. T. to be noti- fied of the time and place appointed for said examination, by serving him with a copy of this order days at least before said court. Witness, J. S., Esquire, judge of said court, this day of , A. D. 18—, S. W., Register. (The above general form may be adapted to all cases jn which citations are required.) [No. 13.] Return to he made on Citations. I have served the foregoing citation as therein ordered. A. B. , ss. , A. D. 18 — . Then personally ap- peared the above-named A. B., and made oath that the above return by him subscribed is true. Before me, L. N., Justice of the Peace. [No.l4.]. Warrant to commit a Person complained of for retaining and con- cealing a Will. \ Commonwealth of Massachusetts. , ss. To the sheriflf of the county of , his deputies, or either of the constables of the town of , in said county, and to the keeper of the jail in said county. Greeting. Whereas, complaint was made to the probate court holden, &c., by A. B., of S., in said county, who claims to be interested in the estate 260 APPENDIX. of C. D., late of said S., deceased, that T. T., of said S., had retained and concealed, and was then retaining and concealing, a certain instru- ment made and executed in due form of law by said C. D., as and for his last will and testament, with' intent to hinder and prevent the pro- bate thereof, whereupon said T. T. was duly cited to appear and an- swer thereto ; and whereas, said T. T. refuses so to appear and submit to examination, {or, to answer interrogatories lawfully propounded to him,) touching the matter of said complaint, and is thereupon ordered ■to be committed to the jail in said county, there to remain in close custody until he submits to the order of the court. You and each of you are therefore required, in the name of the Commonwealth of Massachusetts, to take the body of the said T. T., and convey him to the jail in said county, and deliver him to the keeper thereof, and make return of this precept with your doings thereon. And you, the said keeper, in the name of the Commonwealth afore- said, are hereby required to receive said T. T. into your custody in said jail, and him there safely keep until he shall consent to be examined and answer interrogatories upon oath as aforesaid, or ' until he be otherwise discharged in due course of law. Hereof fail not at your peril. Given under my hand and the seal of said court this day of , A. D. 18—. J. S., Judge of Probate Court. [No. 16.] Petition for Administration hy Widow, the next of Kin being in- cornpetent. To the Honorable the Judge of the Probate Court in and for the county of B. Respectfully represents A. D., of S., in the county of B., that C. D., who last dwelt in said S., died on the day of , in the year of our Lord eighteen hundred and , intestate, possessed of goods and estate remaining to be administered, leaving as his only next of- kin the persons whose names, residence, and relationship to the deceased are as follows, viz. APPENDIX. 261 I L. D., C. A. D., and J. D., children of said deceased, and each of fchem a minor under the age of twenty-one years. That your petitioner is the widow of said deceased and is entitled to take such adininistration. Wherefore she prays that she may be appointed administratrix of the estate of said deceased. Dated this day of , A. D. 18 — . A. D. [No. 16.] Petition for Administration h/ next of Kin, the Widow assenting. To the Honorable the Judge of the Probate Court in and for the county of S. Respectfully represents L. D., of D., in the county of B., that C. D., who last dwelt in C, in said county of S., died on the day of , in the year of our Lord eighteen hundred and , intestate, possessed of goods and estate remaining to be admin- istered, leaving a widow whose name is E. D., and as his only next of kin the persons whose names, residence, and relationship to the deceased are as follows, viz. S. A., wife of P. A., of L., in said county, a daughter of said deceased. J. D. and L. D., of said C, sons of said deceased. That your petitioner is entitled, as next of kin of said deceased, to take such administration. Wherefore he prays that he may be appointed administrator of the estate of said deceased. Dated this day of , A. D. 18—. L. D. The undersigned, being all the parties interested in the foregoing petition, desire the same may be granted without further notice. E. D, (Widow.) J. D. S. A, 262 APPENDIX. [No. 17.J Petition by One requested hy the Parties interested to administer. To the Honorable the Judge of the Probate Court in and for th^ county of H. Eespectfully represents A. B., of L., in the county of W., that C. D., who last dwelt in H., in said county of H., died on the day of , in the year of our Lord eighteen hundred and , intes- tate, possessed of goods and estate remaining to be administered, leav- ing no widow, and as his only next of kin the persons whose names, residence, and relationship to the deceased are as follows, viz, J. D., of said H., a son of said deceased. S. D., of said H., a daughter of said deceased. That there are no creditors of the said C. D. known to your peti- tioner, and that he is requested by the next of kin of said deceased to take such administration. Wherefore your petitioner prays that he may be appointed admin- istrator of the estate of said deceased. Dated this day of , A. D. 18—. A. B. The undersigned, being all the parties interested in the foregoing petition, desire the same may be granted without further notice. J. D. S. D. [No. 18.] Petition for Administration by a Creditor . To the Honorable the Judge of the Probate Court in and for the county of M. Respectfully represents A. B., of C, in the county of , that C. D., who last dwelt in L., in said county of M., died on the day of , in the year of our Lord eighteen hundred and — — ; intestate, possessed of goods and estate remaining to be administered, leaving a widow whose nanie is H. D., and as his only next of kin APPENDIX. 263 the persons, whose names, residence, and relationship to the deceased are as follows, viz. B. D., of said L., and J. D., of Albany, in the State of New York, both of whom are sons of said deceased. That the widow and next of kin of said C. D. have neglected for thirty days since his death, and still neglect, to take administration of his estate ; and that your petitioner is one of the principal cred- itors of said deceased. Wherefore your petitioner prays that he may be appointed admin- istrator of the estate of said deceased. Dated this day of , A. D. 18—. A, B. • [No. 19.] Petition for Administration by Husband. To the Honorable the Judge of the Probate Court in and for the county of B. KespectfuUy represents A. C, of D., in said county of B., that L. C, who last dwelt in said D., died on the day of , A. D. 18 — , intestate, possessed of goods and estate remaining to be ad- ministered, leaving as her only next of kin the persons whose names, residence, and relationship to the deceased are as follows, viz. S. A. and B. A., both of H., in the county of N., brothers of said deceased. That your petitioner was the husband of said deceased at the time of her death, and is entitled to administer her estate. Wherefore your petitioner prays that he may be appointed admin- istrator of the estate of said deceased. Dated this day of , A. D. 18—. A. B. |No. 20.J Petition for Administration when Intestate was an Inhabitant of another State. To the Honorable the Judge of the Probate Court in and for the county of M. 264 APPENDIX. Respectfully represents A. D., of L., in the county of M., that C. D., who last dwelt in Albany, in the State of New York, died on the , day of , A. D. 18 — , intestate, possessed of goods and estate in said county of M., remaining to be administered, leaving a widow whose name is S. D., and as his only next of kin the persons whose names, residence, and relationship to the deceased are as fol- lows, viz. J. D. and H. D., both of said Albany, and A. D., of said L., all of them children of said C. D. That your petitioner is entitled, as next of kin of said C. D., to administer his estate. • Wherefore your petitioner prays that he may be appointed admin- istrator of the estate of said deceased. Dated this day of , A. D. 18—. A. D. [No. 21.] Petition for Administration by a Public Administrator. To the Honorable the Judge of the Probate Court in and for the county of S. Respectfully represents A. B., of B., in said county of S., that C. D., who last dwelt in said B., died on the day of , in the year of our Lord eighteen hundred and , intestate, possessed of goods and estate in said county of S. remaining to be administered, and not leaving a widow nor any next of kin in this Commonwealth. That your petitioner is a public administrator in and for said county of S., and is entitled to administer the estate of said deceased. Wherefore your petitioner prays that administration of the estate of said deceased may be granted to him. Dated this day of , A. D. 18—. A. B. APPENDIX. 265 [No. 22.] Petition for Administration with the Will annexed. To the Honorable the Judge of the Probate Clourt in and for the county of H. Respectfully represents H. D., of S., in said county of H., that C. D., who last dwelt in said S., died on the day of , in the year of our Lord eighteen hundred and , testate, possessed of goods and estate remaining to be administered, leaving as his only next of kin the persons whose names, residence, and relationship to the deceased are as follows, viz. L. D. and S. D., both of said S., children of said deceased, both of whom are minors under the age of twenty-one years. That the last will and testament of said deceased was duly proved and allowed at a probate court holden at W., in said county, on the day of last past, and that no person is named in said will as the executor thereof; (or, that the sole executor named in said will has refused to accept said trust ; or, having been duly cited to ap- pear and accept said trust, has neglected so to do ; or, has neglected for more than twenty days since said will was proved as aforesaid, and still neglects, to give bond for the faithful discharge of his trust ; or, has deceased ; or, is a minor under the age of twenty-one years.) That your petitioner is widow of said C. D., and is entitled to ad- minister his estate. Wherefore your petitioner prays that she may be appointed ad- ministratrix with the will annexed of the estate of said deceased. Dated this day of , A. D. 18—. H. D. [No. 23.] Petition for Administration de bonis non. To the Honorable the Judge of the Probate Court in and for the county of F. Eespectfully represents A. B., of N., in the county of H., that C. D., who last dwelt in G., in said county of F., died on the day of , in the year of our Lord eighteen hundred and , intes- 23 266 APPENDIX. tate, possessed of goods and estate remaining to be administered ; that at a probate court holden at C, in said county of F., on the day of , A. D. 18 — , E. F,, of said G., was duly appointed admin- istrator of the estate of said deceased ; that said E. F. accepted said trust, but has recently deceased, {or, that by a decree of a probate court holden at , in said county of F., on the day of , A. D. 18 — , said E. F. was removed from his said office of admin- istrator ; or, was allowed to resign his said office, &c.,) and that there is personal estate of said deceased remaining to be administered to the amount of twenty dollars, {or, that there are debts to the amount of twenty dollars remaining due from the estate of said deceased.) That your petitioner is heir at law, {or is a creditor, &c.,) of said C. D., and is interested in said estate. Wherefore your petitioner prays that he may be appointed admin- istrator of the estate of said deceased not already administered. Dated this day of , A. D. 18—. A. B. [No. 24.] Petition for Administration de bonis nan with the Will annexed. To the Honorable the Judge of the Probate Court in and for the county of F. Eespectfully represents H. D., of L., in the county of E., that the will of C. D., late of S., in said county of P., was duly proved and allowed in said court on the day of , A. D. 18 — , and L. D., of said S., appointed executor thereof; that said executor en- tered upon the discharge of his trust, but has lately, to wit, on the day of , A. D. died {or state other cause of the vacancy according to the facts), without having fully executed said will, there being {here state wherein the will has not been fuHy executed) ; {or, there being debts to the amount of twenty dollars remaining due from the estate of said C. D. ; (or, there being personal estate of said C. D. not administered to the amount of. twenty dollars.) / That your petitioner is one of the legatees named in said will, {or^ is a creditor, &c., &c.,) and is interested in the estate of said C. D. "Wherefore your petitioner prays that he may be appointed adminis- APPENDIX. 267 trator with the will annexed of the estate of said deceased not al- ready administered. Dated, &c. H. D. Assent of Persons interested to he annexed to the foregoing Petition. The undersigned, being all the legatees and parties interested in the foregoing petition, request that the prayer thereof be granted, without further notice. J.D. S. D.. H. D. [No. 25.] Petition for Special Administration. To the Honorable the Judge of the Probate Court in and for the county of H. Respectfully, represents A. D., of S., in the county of H., that C. D., who last dwelt in C, in said county of H., died on the day of , in the year of our Lord one thousand eight hundred and , possessed of goods and estate remaining to be administered, and that there is delay in granting letters testamentary (or, of ad- ministration) on his estate, by reason of a suit concerning the proof of the last will and testament of said C. D. {or state any other cause of the delay in accordance with the fads.) That your petitioner (here state the relation of the petitioner to the estate, whether as heir, creditor, SfC.) "Wherefore your petitioner prays that he may be appointed special administrator of the estate of said deceased ; and may be authorized to take charge of all the real estate of said deceased, and to collect the rents and make necessary repairs. Dated this, &c. A. D. Assent of Persons interested to be annexed to the foregoing Petition. The undersigned, being all the parties interested in the foregoing 268 APPENDIX. petition, request that the same may be granted, without further notice. J. D. S. D. H. D. [No. 26.1 Petition hy Widow to he appointed Guardian of her Ghildren, To the Honorable the Judge of the Probate Court in and for the county of H. Respectfully represents A. B., of , in the county of , that there is occasion for the appointment of a guardian of J. B., who was born on the day of , A. D. 18 — , and S. B., born on the day of , A. D. 18 — , both of W., in the county of H., minors, and children of C. B., late of said W., deceased, and your petitioner, and she prays that she may be appointed to that trust. Dated this day of — -, A. D. 18—. A. B. [No. 27.] Petition of a Person not a Relative of the Minor to be appointed his Guardian, the surviving Parent assenting. To the Honorable the Judge of the Probate Court in and for the county of . Respectfully represents H. J., of -, in the county of — — , that there is occasion for the appointment of a guardian of N. D., who was born on the day of , A, D. 18 — , now of , in the county of , a minor, and child of C. D., late of , in the county of , deceased, and E. D., his widow ; that your petitioner is requested by said E. D. to take such guardianship, and prays that he may be appointed to that trust. Dated this day of , A. D. 18—. H. J. I, the surviving parent of said minor, hereby assent to the granting of the foregoing petition. E. D. APPENDIX. 269 [No. 28.] Petition of a Person not a Relative of the Minor to he appointed his Guardian, the next of Kin, Sfc, assenting. To the Honorable the Judge of the Probate Court in and for the county of . Respectfully represents H. J., of , in the county of , that there is occasion for the appointment of a guardian of N. D., wjio was born on the day of , A. D. 18 — , now of , in the county of , a minor, and child of C. D., late of , in the county of , deceased, and E. D., who is also deceased. That the only next of kin of said minor known to your petitioner are J. D. and R. D., brothers of said minor, both of , &c. (or, that there are no next of kin of said minor known to your petitioner, and that said minor has lately been in the care of P. R., of , &c.) That your petitioner has been requested by said J. D. and R. D. to take such guardianship, and prays that he may be appointed to that trust. Dated this day of , A. D. 18—. H. J. We, the next of kin of said minor, (or, having the care of said minor,) hereby assent to the granting of the foregoing petition. J. D. R. D. [No. 29.] Petition of Person nominated hy a Minor over the age of fourteen. To the Honorable the Judge of the Probate Court in and for the county of . Respectfully represents H. J., of , in the county of , that there is occasion for the appointment of a guardian, of N. D., who was born on the day of , A. D. 18 — , now of , in the county of , a minor, and child of C. D., late of , in the county o£ , deceased, and E. D., his widow. That said minor 23* 270 APPENDIX. has nominated your petitioner to be his guardian, and your petitioner prays that he may be appoiftted to that trust. Dated this day of , A. D. 18—. H. J. , ss. , A. D. 18—. Personally appeared the above-named N. D., a minor, above the age of fourteen years, and nominated said H. J. to be his guardian. Before me, J. S., Justice of the Peace, [No. 30.] Petition for Giiardianship of Minor, over fourteen, who neglects to nominate. To the Honorable the Judge of the Probate Court in and for the county of B. Respectfully represents A. D., of , &c., that there is occasion for the appointment of a guardian of J. D., who was born on the day of , A. D. 18 — , now of , in the county of B., a minor, and child of C. D., late of , in the county of B., deceasedj and E. D., who is also deceased ; that said minor is above the age of fourteen years, but has neglected and still neglects to nominate any person to be his guardian ; that your petitioner is a brother of said minor and his only next of kin, and your petitioner prays that he may be appointed to that trust. Dated this day of , A. D. 18—. A. D. [No. 31.] Petition for Guardianship of a Minor residing out of the State. To the Honorable the Judge of the Probate Court in and for the county of M. Respectfully represents A. B., of, &c., that there is occasion for the appointment of a guardian of J. D., who was bom on the day of , A. D. 18 — , now of New York, in the State of New York, APPENDIX. 271 minor, and child of C. D., late of said New York, deceased, and E. D., his widow; that said minor has certain estate situate in said county of M., and that your petitioner is {here state the rehiions of the petitioner to the minor, or to his estate, in accordance with the facts of the case) ; and your petitioner prays that fee may he appointed to that trust. Dated this day of , A. D. 18 — A. B. [No. 32.] Petition for Appointment of Trustee to fill Vacancy. To the Honorable the Judge of the Probate Court in and for the county of B. Eespectfully represents A. B., of , in the county of , that C. D., late of , in said county of B., deceased, testate, by his last will and testament, duly proved and allowed on the day of , in said court, did therein give certain estate in trust for the use and benefit of E. F., of , &c. (here state any material facts in regard to the objects of the trust,) and appointed G. H., of, &c., trustee under said will ; that said G. H. declines to accept said trust (or state the fact of the removal or death of the former trustee, as the case may be). He therefore prays that he may be appointed (or, that K. L., of, &c., may be appointed) trustee, in the place of said G. H., according to the provisions of the law in such case made and provided. Dated this day of , A. D. 18—. A. B. Assent of Persons interested to be annexed to the foregoing Petition. The undersigned, being the only parties interested in the fore- going petition, desire the same may be granted, without further notice. J. D. S. D. H. D. [No. 33.] Petition for appointment of Trustee, under Statute " concerning Pro- visions for Widows in certain Gases." (Stat. 1861, c. 164.) To the Honorable the Judge of the Probate Court in and for the county of . 272 APPENDIX. Eespectfully represents A. B., of, &c., that in the will of C. D., late of S., in said county of , deceased, which has been duly proved and allowed in said Court, certain provision was made for H. D., widow of said C. D. ; that said H. D. has filed in the probate office, in writing, her waiver at the provision made for her in said will, and has thereby become entitled to receive the sum of ten thousand dol- lars of the personal estate of said C. D. in her own right, and the income during her natural life of the further sum of dollars, as fully appears by the final account of L. M., executor of the will of said C. D., allowed and recorded in the probate office ; that there is occasion for the appointment of a trustee to receive, hold, and manage said sum of dollars during the life of said H. D., and that your petitioner is named a legatee in-the will of said C. D., and is inter- ested in said estate. Wherefore your petitioner prays that he may be appointed trustee as aforesaid, according to the provisions of the law in such case made and provided. Dated this day of , A. D. . A. B. Assent of Persons interested to he annexed to the foregoing Petition. The undersigned, being all the legatees, and the only parties in- terested in the foregoing petition, desire the same may be granted, without further notice. T. D. S. D. H. B. [No. 34.] Decree on the foregoing Petition. At a probate court holden, &c. On the petition of A. B., of, &c., praying to be appointed trustee to receive, hold, and manage a certain portion of the personal estate of C. D., late of S., in said county of , deceased, during the nat- ural life of H. D., widow of said C. D., being that portion of said personal estate to the income of which said H. D. is entitled by reason of her waiver of the provision made for her in the will of said C. D. APPENDIX. 273 It appearing by the waiver of said H. D., on file in the probate office, and by the final account of L. M., executor of the will of said C. D., which has been duly allowed and recorded, that said H. D. is entitled to the sum of ten thousand dollars of the personal estate of said deceased in her own right, and to the income of the further sum of dollars during her natural life, and that notice of the pen- dency of said petition has been given to parties interested therein as ordered, and no party objecting thereto; it is decreed that said petitioner be appointed trustee, to receive, hold, and manage said sum of dollars, and to pay the income thereof to said H. D. during her natural life, and at the death of said H. D. to pay said sum to the persons entitled by law and the will of said deceased to receive the same. J. S., Judge of Probate Court. [No. 35.] Petition for the Removal of an Administrator. To the Honorable the Judge of the Probate Court for the county of Respectfully represents A. B., of S., in said county, that he is heir at law of C. D., late of said S., deceased, and is interested in the estate of said C. D. ; that at a probate court holden at E., in said county, on the day of , A. D. , one F. G. was duly appointed administrator of said estate, and accepted said trust ; that the said F. G. {here state the grounds upon which the removal is asked, whether it be personal unfitness, or neglect of duty, or other mal- administration,) and is not now suitable for the discharge of said trust. Wherefore he prays that the said F, G. may be removed from his said of&ce of administrator. Dated this day of , A. D. 18—. A. B. (Petitions for the removal of unsuitable or unfaithful executors, guardians, and trustees may be made substantially in the same form.) 274 APPENDIX. [No. 36.] Decree on the foregoing Petition. At a probate court holden at, &c. On the petition of A. B., of, &c., representing that he is heir at law of C. D., late of S., in said county of , deceased, and is interested in his estate, and praying that F. G., administrator of the estate of said C. D., may be removed from his said trust for the reason that, &c. It appearing that notice thereof has been given to said F. G., and that the allegations set forth in said petition are true, and that said F. G. is therefore evidently unsuitable for the faithful discharge of said trust. It is decreed that said F. G. be, and he is this day, removed from his said oflSce of administrator of the estate of said C. D. J. S., Judge of the Prolate Gourt, [So. 37.] Resignation, of Administrator. To the Honorable the Judge of the Probate Court for the county of . Respectfully represents A. B., of W., in said county, that at a pro- bate court holden at said W., on the — — day of , A. D. 18 — , he was duly appointed administrator of the estate of C. D., late of S., in said county, deceased, intestate, and gave bond for the discharge of said trust as required by law ; that said estate is not fully admin- istered, but that he is unable, by reason of ill health (or other cause), to give such personal attention to the duties of said trust as the in- terests of said estate require. Wherefore, he herewith files a just and true account of his admin- istration of said estate, and prays that he may be allowed to resign his said trust. Dated this day of- — , A. D. 18 — A. B. APPENDIX. 275 [No. 38.] Decree on the foregoing. At a probate court holden, &c. On the petition of A. B., of, &c., administrator of the estate of C. D., late of S., in said county of , deceased, praying that he may be allowed to resign his said office of administrator for the reason ■that, &c.. It appearing that notice thereof has been given to all parties in- terested, as ordered, and that it is proper that the prayer of said pe- tition be granted, it is decreed that said A. B. be allowed to resign his said trust, and he is hereby discharged therefrom. J. S., Judge of Prolate Court. [No. 39.] Petition of Ward to he discharged from Guardianship. To the Honorable the Judge of the Probate Court for the county of . KespectfuUy represents A. B., of , in said county of , that by a decree of the probate court holden at , in and for said county, on the day of , A. D. 18 — , he was adjudged to be an insane person, (or, a spendthrift,) and C. D., of , in said county was duly appointed his guardian, and accepted the trust ; that said appointment has never been revoked, and that said C. D. still continues to have custody of the person of your petitioner and the manage- ment of his estate. Tour petitioner further represents that he believes that he is now capable of managing his own estate, and that the necessity for such guardianship no longer exists. Wherefore he prays that he may be discharged from said guar- dianship. Dated this day of , A. D. 18—. A. B. 276 APPENDIX. [No. 40.] Decree on tkeforegding Petition. On the petition of A. B., of, &c. a person adjudged insane, (or, a spendthrift,) and under guardianship, representing that such guardian- ship is no longer necessary, and praying that C. D., his guardian, may be discharged from his said trust. It appearing that notice thereof has been given to all persons in- terested therein, and that said A. B. has become restored to his right mind, (or, has become correct in his habits,) and is competent to man- age his estate, and that such guardianship is no longer necessary ; it is decreed that the prayer of said petition be granted, and said C. D. be and he is hereby discharged from his said trust of guardian of said A. B. J. S., Judge of Prolate Court. [No. 41.] Justice^s Order to Appraisers. ss. To A. B., F. G., and N. 0., all of S., in said county. You are hereby appointed to appraise, on oath, the estate and ef- fects of C. D., late of said S., deceased, (or, of B. A. and G. F., of said S., minors,) which may be in said county. Tyhen you have per- formed that service, you will deliver this order land your doings in pursuance thereof to J. S., administrator of the estate of said deceased, (or, executor of the last will and testament of said deceased, or, guar- dian of said minors, as the case may be,") that he may return the same to the probate court for the county of . Given under my hand this day of , A. D. 18 — . L. N., Justice of the Peace. ss. A. D. 18 — . Then the above-named A. B., F. G., and N. O., personally appeared and made oath that they would faith- fully and impartially discharge the trust reposed in them by the above order. Before me, L. N., Justice of the Peace. APPENDIX. 277 [No. 42.] Oomplaint for Umbezslement. To the Honorable the Judge of the Probate court for the county of . A. B., of L., in said county, on oath complains that he has good cause to suspect, and does suspect, that T. T., of said L., has fraudu- lently received, concealed, embezzled, and conveyed away certain articles of personal property belonging to the estate of C. D., late of said L., deceased, (or, of G. F. and H. F., both of P., in said county, minors,) to wit (here describe the articles) : that your complainant is administrator of the estate of said C. D. (or, is legatee, creditor, heir at law, &c. ; or, guardian of said minors, as the ease may he), and is interested in said estate. Wherefore he prays that said T. X may be cited to appear before said court, to be examined upon oath upon the matter of this com- plaint, and that such further proceedings may be had in the premises as the law requires. A. B. ss. Subscribed and sworn to this day of , A. D. 18 — , before me, L. N., Justice of the Peace. [No. 43.] Warrant to commit a Person complained of for Embezzlement. Commonwealth of Massachusetts. ss. To the sheriff of the county of , his deputies, &c., and to the keeper of the jail in said county. Greeting. Whereas, complaint was made to the probate court holden, &c., by A. B., of L., in said county, administrator of the estate of C. D., late of said L., deceased, that he has good cause to suspect, and does sus- pect, that T. T., of said L., has fraudulently received, concealed, em- bezzled, and conveyed away certain articles of personal property therein described, whereupon said T. T. was duly cited to appear and be examined on oath, upon the matter of said complaint ; and 24 278 . APPENDIX. whereas, said T. T. refuses so to appear and submit to examination (or, to answer interrogatories lawfully propounded to him), touching the matter of said complaint, and is thereupon ordered to be com- mitted to the jail in said county, there to remain in close custody until he submits to the order of the court. You and each of you are therefore required, in the name of the Commonwealth of Massachusetts, to take the body of the said T. T, and convey him to the jail in said county, and deliver him to the keeper thereof, and make return of this precept with your doings thereon. And you, the said keeper, in the name of the Commonwealth afore- said, are hereby required to receive said T. T. into your custody in said jail, and him there safely keep, until he shall consent to be ex- amined and answer interrogatories upon oath as aforesaid, or until he be otherwise discharged in due course of law. Given under my hand and tfie seal of said court this day of ^, A. D. 18—. J. S., Jiidffe of Probate Oourt. \So. 44.] Petition of Wife of a Person under Gvardianship for Insanity for an Allowance. To the Honorable the Judge of the Probate Court for the county of . Eespectfully represents C. D., that she is the wife of A. D., of S., in the county of , an insane person ; that at a probate court holden at , in said county, on the day of , A. D. 18 — , E. F., of said S., was duly appointed guardian of said A. D. ; that said appointment has not been revoked or determined, and that there is certain estate of said A. D. in the hands of said E. F., out of which she is entitled to an allowance for her support, to be paid to her by said E. F., during the continuance of said guardianship. Wherefore she prays that an allowance may be decreed to her accordingly. Dated the , day of , A. D. 18—. C. D. APPENDIX. 279 [No. 45.1 Decree on the foregoing Petition. At a probate court held, &c. On the petition of C. D., representing that she is the wife of A. D., of S., in said county, an insane person and under guardianship, and that there is certain estate of said A. D. in the hands of E. F., of said S., guardian of said A. D., out of which she is entitled to an allowance for her support, during the continuance of said guardian- ship. It appearing that the petitioner is the wife of said A. D., and is en- titled to an allowance as aforesaid, it is decreed that the sum of dollars be allowed to her annually for her support, to be paid to her by said E. F., in equal quarterly payments {or otherwise), during the continuance of said guardianship, or until otherwisa ordered by the court. J. S., Judge of Probate Cowrt. \So. 46.] Petition of Administrator for License to sell Debts due the Estate of his Intestate. To the Honorable the Judge of the Probate Court in and for the county of . Respectfully represents A. B., of, &c., administrator of the estate of C. D., late of S., in said county, deceased, that there are certain claims due to the estate of said C. D., to wit (here describe the claims or assets to be sold) : which claims cannot be collected by your petitioner without, inconveniently delaying the settlement of said estate, for the reason that (here state the particular reason for the proposed sale). Wherefore your petitioner prays that he may be licensed to sell and assign said claims, for the purpose of closing the settlement of said estate agreeably to the law in such case made and provided. Dated this day of , A. D., 18—. A. B. 280 APPENDIX. [No. 47.] Decree on the foregoing Petitidn. ss. At a probate court holden, &c. On the petition of A. B., administrator of the estate of C. D., late of S., in said county of , deceased, representing that there are certain claims in favor of said estate, to wit (specify the claims) : which claims cannot be collected without inconvenient delay, and praying that he may be licensed to sell and assign the same, for the purpose of closing the settlement of said estate. All parties interested having been duly notified, and it appearing, after a hearing thereon, that the prayer of said petition ought to be granted, — r it is decreed, that said administrator be licensed to sell and assign said claims, for the purpose aforesaid {if the sale is to be public, add), by public auction, first giving notice of the time and place thereof by, &c. J. S., Judge of Probate Court. [No. 48.] Petition for Leave to sett Personal Estate in the Hands of a Guar- dian or Trustee, and invest the Proceeds in Real Estate. To the Honorable the Judge of the Probate Court in and for the county of . Respectfully represents A. B., of, &c., that he holds, in his capacity of guardian of E. F., of, &c., (or, trustee under the will of C. D., late of S., in said county, deceased,) twenty shares of the capital stock of the (here describe the property) ; that it would be for the interest of said E. F., and of all concerned therein, (or, of all concerned in said trust estate,) that the same be sold, and the proceeds thereof invested in certain real estate situate in, &c. (here describe the land). Wherefore your petitioner prays that he may be authorized to sell the said stock (or other property), and invest the proceeds thereof in the purchase of the real estate herein described. Dated, &c. A. B. APPENDIX. 281 [When this petition is made by some person other than the guar- dian or trustee, he should set forth his relations to the estate to be sold, and pray that the guardian or trustee may be " required " to sell, &c. If the guardian or trustee has money to be invested, and there is no personal estate to be sold, the petition must be varied to meet the facts of the case, and the amount to be invested should be stated.] [No. 49.] ' Order on the foregoing Petition. At a probate court holden, &c. On the petition of A. B., representing that he holds, as guardian of E. F., of, &c., twenty shares in the capital stock of the , and that it would be for the interest of said E. F., and of all concerned therein, that the same be sold and the proceeds thereof be invested in certain real estate therein described. It appearing that notice thereof has been given to all persons in- terested, as ordered, and that it would be most for the interest of said E. F., and of all persons concerned therein, that the prayer of said petition be granted ; it is decreed, that said A. B. be, and he is hereby, authorized to sell said stock at public auction, first giving notice of the time and place of said sale by, &c. (or, at private sale), and to invest the proceeds of said sale in the purchase of the real estate described in said petition. J. S., Judge of Prolate Court. \ [No 50.] Petition of Administrator for Authority to compromise a Demand. To the Honorable the Judge of the Probate Court in and ifor the county of A. Respectfully represents A. B., administrator of the estate of C. D., late of S., in said county of A., deceased, that he has, as such administrator, a demand against E. F., ofj &c., said demand being 24 * 282 APPENDIX. (describe the ehim) ; (or, that E. F., of, &c., has brought an action in the court to recover of said estate the sum of $ , for (describe the demand), that in the judgment of your petitioner it will be for the benefit of all persons interested in said estate that said demand be adjusted by a compromise (or, by submitting the same to arbitration), and that he has reason to believe that it can be. so adjusted. He therefore prays that he may be accordingly authorized to ad- just said demand by compromise (or, by arbitration). Dated, &c. A. B. Assent of Persons interested to be annexed to the foregoing Petition. The undersigned, being the only parties interested in the , fore- going petition, desire the same may be granted, without further no- tice." 8 J. D. S. D. H. D. The same general form may be used by executors, guardians, and trustees. [No. 61.] Decree on the Foregoing Petition. —^ ss. At a probate court held, &c. On the petition of A. B., administrator of the estate of C. D., late of S., in said county of E., deceased, to be authorized to adjust by compromise a demand made against said estate by E. F., of, &c., said demand being, &c., &c. ; it appearing that notice thereof has been given as ordered, and that the prayer of said petition ought to be granted, it is decreed that said A. B. be authorized to adjust said de- mand by a compromise upon such terms, to be agreed upon by the petitioner and said E. F., as will be for the benefit of all persons interested in said estate: J. S., Judge of Probate Court: APPENDIX. 283 [No. 52.] Petition of Creditor whose Right of Action does not accrue within the Time limited for bringing Suits against Administrators. To the Honorable the Judge of the Probate Court for the county of . Respectfully represents A. B., of E., in said county, that at a pro- bate court holden at said E., on the day of , A. D. 18 — , H. J., of S., in said county, was duly appointed executor of the last will and testament of C. D., late of said S., deceased, and that on the same day the bond given by the said H. J., for the faithful discharge of said trust, was approved by the judge of said court ; that said exec- utor has given due notice of his said appointment ; that your peti- tioner has a just claim against the estate of the said C. D., a full statement of which is hereto annexed, but that no right of action on said claim will accrue to your petitioner until after the expiration of two years from the giving of said bond by the said H. J. Where- fore your petitioner prays that said executor may be ordered to re- tain in his hands, of the estate of the said C. D., a sum sufficient to satisfy said claim, or that such other order may be made in the premises as justice requires. Dated this day of , A. D. 18—. A. B. (Annex to this petition a full statement of the claim.) [No. 53.] Decree on the foregoing Petition. At a probate court holden, &c. On the petition of A. B., of, &c., representing that he has a claim against the estate of C. D., late of S., in said county, deceased, on which claim no right of action will accrue within two years after the giving of the bond of H. J., fexecutor of the will of said C. D., and praying that said executor may be ordered to retain in his hands a sum sufficient to satisfy said claim when the same shall become payable : It appearing that notice thereof has been given to all persons con- cerned therein, and that said claim is justly due from the estate of 284 APPENDIX. said C. D., and no one interested in said estate appearing to give bond to said petitioner for the payment of the same, in case it is proved to be due; it is decreed, that said executor retain in his hands a sum sufficient to satisfy said claim, to wit, the sum of dollars, until the expiration of one year from the time when the same becomes payable, or until the rendering of final judgment in any suit for the recovery of the same commenced within one year after the same becomes payable, unless said claim shall have been sooner adjusted and settled, saving to said executor all right of defence against said claim which by law he may have. J. S., Judge of Probate Oourt, [No. 54.1 B Commissioners. [No. 59.] Creditor's Notice of Appeal from Decision of the Commissioners, to he JUed in Prolate Office. To the Honorable the Judge of the Probate Court for the county of , and H. C, administrator of the estate of C. D., late of S., in said county, deceased. A. B., of S., in said county, gives notice that his claim against the estate of said C. D. having been disallowed by the commissioners appointed to receive and examine the claims of creditors against said estate, he claims an appeal from the decision of said commissioners to the supreme judicial court (or, superior court), next to be holden at , in and for said county, on the day of next. Dated the day of , A. D. 18—. A, B, 288 APPENDIX. [No. 60.] Executor's Notice of Appeal from Decision of the Oommissioners, to he filed in the Probate Office, and served on the Creditor. To the Honorable the Judge of the Probate Court for the county of , and B. N. {the adverse party), of , &c. H. J., administrator of the estate of (or executor of the last will and testament of) C. D., late of said S., deceased, represents that he is dissatisfied with the decision of the commissioners appointed to re- ceive and examine the claims of creditors against the estate of the said C. D., allowing the claim of one B. N., of said S., and hereby gives notice that he claims an appeal from said decision of said com- missioners to the supreme judicial court {or, superior court), next to be holden at , in and for said county, on the of next. Dated this day of , A. D. 18 — . H. J [TSo. 61.] Agreement to submit Claim against an Insolvent Estate to Arbitration. To the Honorable the Judge of the Probate Court in and for the county of A. Respectfully represent A. B., administrator of the estate of C. D., late of S., in said county of A, deceased, and E. F., of, &c., that said E. F. presented a claim, a statement of which is hereto annexed, to the commissioners appointed to receive and examine the claims of creditors against said estate, which claim was disallowed by said com- missioners, as by their report filed in said court appears, from which disallowance said E. F. gave notice of an appeal to the court, to be held in and for said county on, &c., &c. ; that said A. B. and E. F. have agreed to waive a trial at law, and to submit said claim to the determination of G. H., N. 0., and A. H., of, &c., arbitrators, whose award thereon, if accepted by the court, shall be final. They there- fore pray that said G. H., N. O., and A. H. may be accordingly appointed by a rule of the probate court, agreeably to the statute in such case provided. Dated this day of , A. D. 18—. A. B. E. F. (Annex a statement of the claim to be submitted.) APPENDIX. 289 [No. 62.J Decree on the foregoing. At a probate court holden, &c. On the petition of A. B., administrator of the estate of C. D., late of S., in said county of , deceased, and E. F., of, &c., praying that the claim of said E. F. against the estate of said C. D. may be submitted to the determination of , , and , arbitrators. It is ordered that said , , and — ■■ — be appointed arbitra- tors accordingly. J. S., Judge of Probate Court. [No. 63.] Rvle issued to Arbitrators. To , , and , of, &c. You are hereby appointed arbitrators to liquidate and adjust the claim of E. F., of, &c., against the estate of C. D., late of S., in the county of , deceased. You will appoint a convenient time and place to hear the parties interested in said claim, and give sutBcient notice thereof to the said A. B. and E. F. In case either the said A. B. or E. F. shall neglect to attend, after having been duly notified, you will proceed ex parte. And you will return this rule, with your doings thereon, to the probate court, as soon as may be. In witness whereof, I have hereunto set my hand, &c., &c. J. S., Judge of Probate Court. [No. 64.] Award of Arbitrators. To the Honorable the Judge of the Probate Court in and for the county of A. The subscribers, arbitrators appointed by the probate court to liquidate and adjust the claim of E. F., of, &c., against the estate of 25 290 APPENDIX. C. D., late of, &c., after having duly notified the parties interested therein, met them at, &c., on the day of, &c., and after having hoard their several pleas, proofs, and allegations, and maturely con- sidered the same, do award and determine, and this is our final award and determination in the premises, to wit : that there is due to the said E. F. from the estate of the said C. D. the sum of dollars, and no more. And we further award that the sum of dollars, being the amount of the costs of arbitration, be paid as follows, to wit : , all which is duly submjtted. Dated at, &c. &c., &c. , ) —S Arbitrators. [No. 65.] Bond of Heirs to pay Debts, given to prevent Sale of Real Estate, Know all men by these presents, that we, A. B. and G. B., both of S., in the county of W., as principals, and H. 0. and B. A., both of said S., as sureties, and all within the Commonwealth of Mas- sachusetts, are holden and stand firmly bound and obliged unto H. J., of said S., in the full and just sum of dollars, to be paid to the said H. J., his executors, administrators, and assigns, to the true pay- ment whereof we do bind ourselves and each of us, our and each of our heirs, executors, and administrators, jointly and severally, by these presents. Sealed with our seals. Dated the day of , A. D. 18—. The condition of this obligation is such, that, whereas the said H. J., in his capacity of administrator of the estate of C. D., late of said S., deceased, has presented to the probate court in said county his peti- tion for license to sell the real estate of the said C. D. for the pay- ment of the debts due from said estate, and the charges of adminis- tration ; and whereas the said_ A. B. and Gr. B. are heirs at law of said deceased, and are desirous that said real estate should not be sold ; now, therefore, if the said A. B. and G. B. shall pay all the deljts mentioned in the said petition of said H. J. that shall eventually be found due from said estate, with the charges of administering the same, so far as the goods, chattels, rights, and credits of said deceased APPENDIX. 291 shall be insufficient therefor, then the above-written obligation shall be void, or else shall abide and remain in full force. Executed in presence of A. B. (seal.) W. H. G. B. (seal.) J. P. H. O. (seal.) B. A. (seal.) ss. , A. D. 18 — . Examined and approved. J. S., Judge of the Probate Court. [No. 66.] Notice of Sale of Land under License. By license of the probate court for the county of , the sub- ,scriber, administrator of the estate of C. D., late of S., in said county, (.deceased (or, executor of the last will and testament of, &c. ; or, guardian of E. F.), will sell/at)public action on the premises (or, at the house of ), on the day of next, at o'clock in the noon, the house and lot on Street, in said S., belonging to the estate of said C. D. {or, belonging to said E. F.), said property is {here state any facts which the interests of the estate require to be brought to the notice of bidders). S , , A. D. 18 — . A. B., Administrator ; (or, Executor or Guardianfi.) [No. 67.] Administrator's Deed of Lands. Know all men by these presents, that I, A. B., of S., county, Massachusetts, administrator of the estate of C. D., late of said S., deceased, by authority of the probate court holden at , in and for said county, on the day of , A. D. 18 — , and in con- sideration of , dollars paid by F. G., of H., in said county, the receipt whereof is hereby acknowledged, do hereby give, grant, sell and convey unto the said F. G., his heirs and assigns, a certain tract 292 APPENDIX. of land situate in said H., bounded and described as follows, to wit (Here describe the land.) To have and to hold the above-granted premises to the said F. 6., his heirs and assigns, to his and their use and behoof forever ; and I do for myself, my heirs, executors, and administrators covenant with the said F. G., his heirs and assigns, that in making sale of the real estate above described, I am duly authorized by the court aforesaid ; that I have complied with the order of said court, by giving bond and taking the oath by law required, and by giving public notice of the intended sale as therein directed ; and that I have in all things ob- served the rules and directions of law relative thereto. In witness whereof, I, the said A. B., have hereunto set my hand and seal this day of , A. D., 18 — . Executed and delivered A. B. (seal.) in presence of B. J. J. C. [The above form may be used by guardians ; the only change necessary being the substitution of the words, " Guardian of A. D., a minor, and heir of C. D., late of said S., deceased," for the words, " administrator," &c.] [No. 68.] Petition for the Conveyance of Land of a deceased Person, or Ward, according to Agreement. To the Honorable the Judge of the Probate Court in and for th^ county of . Respectfully represents A. B., of H., in said county, that C. D., late of said H., deceased, during his lifetime, to wit {or, that G. H., of H., in said county, an insane person, and now under guardianship, at a time previous to such guardianship, to wit), on the day of , A. D. 18 — , entered into an agreement in writing with your petitionei', a copy of which agreement is hereto annexed, where- by said C. D. {or, G. H.) agreed with your petitioner to convey to him, upon the terms and conditions set forth in said agreement, cer- tain real estate situate in B., in said county, and fully described in APPENDIX. 293 said agreement; that said C. D. died without making such convey- ance (or, that said G. H. has not made such conveyance, and is not now competent to make the same by reason of such guardianship); and that your petitioner is ready to perform all the conditions of said agreement on his part. Wherefore your petitioner prays that a specific performance of eaid agreement may be decreed, and that E. F., administrator of the estate of said C. D. {or, guardian of said G. H.), may be ordered to convey said real estate to him agreeably to the terms thereof. Dated, &c. A. B. [No. 69.] Decree on the foregoing Petition. At a probate court holden, &c. On the petition of A. B., of H., in said county, representing that during the lifetime of G. D., late of said H., deceased, he and the said C. D. made an agreement in writing whereby the said C. D. agreed to convey to said A. B. certain real estate situate in B., in said county, and described as follows, to wit, &c., upon the terms and conditions therein set forth; that said C. D. died without making such conveyance ; and praying that E. F., administrator of the estate of said C. D., may be ordered to make such conveyance, according to the terms of said agreement. It appearing that notice thereof has been given to all parties inter- ested, and upon a hearing thereon that said C. D., if living, would be by law required to make a conveyance of said real estate to said A. B., it is decreed that E. F., administrator as aforesaid, make con- veyance of said real estate to said A. B., payment being first made to said administrator by said A. B., of the sum named in said agree- ment, said conveyance when made to have the like force and effect as if made to said A. B. by said C. D. during the lifetime of said CD. J. S., Judge of Prolate Court. 25* 294 APPENDIX. [No. 70.] Petition that an Administrator may he cited to settle Ms Account in • Probate Court. To the Honorable the Judge of the Probate Court for the county of . Respectfully represents B. D., of S., in said county, that he is heir at law of C. D., late of said S., deceased, and is interested in the estate of the said C. D. ; that at a probate court holden at C, in said county, on the day of , A. D. 18 — , one A. B., of said S., was duly appointed administrator of the estate of said C. D., and gave bond for the faithful discharge of said trust ; that more than one year has elapsed since the said appointment of the said A. B., but that the said A. B. has neglected, and still neglects, to render his account of administration. Wherefore your petitioner prays that said administrator may be cited to settle his accounts in the probate court, and that your petitioner may be authorized to bring an action in the supreme judicial court upon the bond of said administrator, in the name of the judge of the probate court, for the recovery of all dam- ages sustained by such neglect of said A. B. Dated this day of , A. D. 18—. B. D. [No. 71.] Petition of Ohild omitted in the Will of his Parent for distributive Share. To the Honorable the Judge of the Probate Court for the county of . Eespectfully represents A. B., of , in said county of ;, that he is guardian of E. D., a minor child of C. D., late of •, in said county, deceased, testate ; that the said C. D., made no provision for the said E. D., either in his lifetime or in his last will and testa- ment ; and that the omission of the said C. D. to provide for the said E. D. in his will was not intentional, but was occasioned by accident and mistake. APPENDIX. 295 Wherefore your petitioner prays that the same share of tlie per- sonal estate of said deceased that said E. D. would have been en- titled to if said C. D. had died intestate may be assigned to the said E. D., agreeably to the statute in such case provided. Dated this day of , A. D. 18—. A. B. [No. 72.] Bond of Distributee, to indemnify Administrator. Know all men by these presents, that we, D. D., of S. county, Massachusetts, as principal, and H. L. and R. O., both of said S., as sureties, are held and firmly bound unto A. B., of PI., in said county, in the sum of dollars, to be paid to the said A. B., his executors, administrators, and assigns, to which payment well and truly to be made we bind ourselves and each of us, our and each of our heirs, executors, and administrators, jointly and severally, firmly by these presents. Sealed with our seals. Dated this. day of , A. D. 18—. ' The condition of this obligation is such, that, whereas the said A. B., in his capacity of administrator of the estate of C. D., late of said S., deceased, has this day, and within two years after having given bond for the discharge of said trust, paid to the said D. D. the sum of dollars, said sum being his distributive share of the estate of the said C. D. ; now, therefore, if the said D. D. shall refund to the said A. B. the said sum of dollars, or so much thereof as may be necessary to satify any demands that may be hereafter re- covered against said estate, and shall indemnify the said A. B. against all loss and damage on account of such payment, then this obligation to be void, otherwise to remain in full force. Executed in presence of D. D. (seal.) L- H. H. L. (seal.) 0. R. R. O. (seal.) ss. , A. D. 18 — , Examined and approved. J. S., Judge of the Probate Court. 296 APPENDIX. [No. 73.] Petition of Person entitled to Money deposited hy an Executor, S^c, under a Decree of Distribution. To the Honorable the Judge of the Probate Court for the county of . Eespectfully represents A. D., of, &c., that he is heir at law of C. D., late of S., in said county of , deceased ; that at a probate court holden at W., in and for said county, on the day of , A. D. 18 — , H. J., administrator of the estate of said deceased, was ordered to distribute and pay the balance of said estate in his hands to the persons named in said order, and in the amounts therein speci- fied ; that, according to said order, your petitioner was entitled to re- ceive the sum of $ , as his share of said balance; and that on the day of , A. D. 18 — , said administrator deposited said sum of $ in the savings bank, in the name of the judge of the probate court, to accumulate for the benefit of your petitioner ; all of which appears by the decrees of said court, and the accounts of said administrator recorded in the probate office ; and that your pe- titioner is entitled to the said sum of $ , deposited as aforesaid, and to the interest accrued thereon. Wherefore your petitioner prays that said sum of $ , and the interest thereon, may be paid over and transferred to him. Dated the day of , A. D. 18—. A. D. [No. -74.] Order on the foregoing Petition. At a probate court holden at , in and for said county of , on the, &c. On the petition of A. D., praying that the sum of dollars, deposited in the name of the judge of the probate court of the county of , in the bank, on the day of , A. D. 18 — , by H. J., administrator of the estate of C. D., late of S., in said county APPENDIX. 297 deceased, with the interest accrued thereon, may be paid over and transferred to him ; it appearing that said A. D. is the person entitled by law to receive the same, it is therefore ordered, that the treasurer of said bank pay over and transfer to the said A. D. the sura of dollars, deposited as aforesaid, with any and all sums of in- terest that may have accrued thereon since the time when said deposit was made. J. S., judge of the Probate Court. [No. 75.] Notice to Seirs or Devisees of the Time and Place for making Partition. To A. B., of, &c., and J. H. and A. N., both of, &c., and P. S., guardian (or agent) of said A. N. Tou are hereby notified that the undersigned have been appointed by the probate court of the county of , to make partition of all the real estate of C. I)., late of S., in said county, deceased, lying within this State, which any party interested requires to have included in the partition among the heirs {or devisees) of said deceased. And that the day of , in the year 18 — , and the house of E. F., in said S., are the time and place appointed for making said partition, at which time and place you may be present. Dated this day of -r — , A. D. 18—. H. M. O. H. )- Oommissioners. W. S. ■ [No. 76.] Widow's Waiver of the Provision made for her in her SushancFs Will. To the Honorable the Judge of the Probate Court in and for the county of H. Respectfully represents A. D., of, &c., that she is widow of C. D., late of S., in said county, deceased ; that said deceased made certain provision for her in his last will, which will has been duly proved and 298 APPENDIX. allowed in said court within six months last past, and that she hereby waives the provision so made for her in said will, and gives notice that she will claim her dower in the lands of said deceased, and her dis- tributive share of his personal estate. Dated this day of , A. D. 18 — . A. D. [No. 77.] Notice to Parlies interested of the Time and Place appointed to set off Dower. To. A. B., E. D., and J. H., all of, &c. You are hereby notified that the undersigned have been appointed by the probate court of the coiinty of commissioners to set off the dower of S. D., widow of C. D., late of S., in said county, de- ceased, in the lands of which he died seised in this Commonwealth. And that the day of , in the year 18 — , and the house of , in said S., are the time and place appointed for setting off said dower, at which time and place you may be heard in relation thereto. Dated this day of , A. D. 18—. A. M.^ 0. H. >• Commissioners. W. S. ) [No. 78.] Petition that the Administrator may he required to furnish a new Bond. To the Honorable the Judge of the 'Probate Court for the county of . Respectfully represents D. D., of S., in said county, that he is heir at law of C. D., late .of said S., deceased, and is interested in the estate of the said C. D. ; that at a probate court holden at B., in and for said county, on the day of last past, H. J., of "W., in said county, was duly appointed administrator of said estate, and gave bond in the sum of dollars, with E. F. and G. H., both of said W., as sureties, for the faithful discharge of his trust ; that said estate APPENDIX. 299 is not fully administered, and that said sureties are not sufficient to ensure the faithful discharge of said trust, the said G. H. having removed from the Commonwealth {or become insolvent, &c.). Wherefore he prays that said Hi J. may be required to give a new bond, with such sureties and in such sum as the court may direct. Dated this day of , A. D. 18 — . D. D. [No. 79.J Decree on the foregoing Petition. ss. At a probate court holden at, &c. On the petition of D. D., representing that he is heir at law of C. D., late of S., in said county of , deceased, and that the sureties in the bond of H. J., administrator of the estate of said C. D., are not sufficient to ensure the faithful discharge of his said trust, for the reason, &c., and praying that said H. J. may be required to furnish a new bond with sufficient sureties : It appearing that notice thereof has been duly given to said H. J., and that the allegations contained in said petition are true ; it is decreed that said H. J. file in the probate office, on or before the day of next, a new bond, with further and sufficient sureties, in the sum of dollars, for the faithful discharge of hia said trust. J. S., Judge of Probate Court. [No. 80.1 Petition of Surety in a Probate Bond to be discharged. To the Honorable the Judge of the Probate Court in and for the, county of . Respectfully represents E. F., of W., in said county, that at a pro- bate court holden at said W., on the day of , A. D. 18 — , H. J., of said W., was duly appointed executor of the last will and testament of C. D., late of S., in said county, deceased, and gave bond for the faithful discharge of said trust ; that your petitioner is one of the sureties in said bond ; that the estate of the said C. D. is 300 APPEMDIX. not yet fully administered, and that your petitioner is unwilling to remain longer liable as surety in said bond for the reason that, {here state the reason for which the application is made.) Wherefore your petitioner prays that he may be discharged from all further responsibility as such surety, and that said H. J. may be ordered to furnish a new bond. Dated this day of , A. D. 18—. E. F. [No. 81.J Decree on the foregoing Petition. ss. At a probate court holden, &c. On the petition of E. F., of W., in said county of , one of the sureties in the bond of H. J., executor of the last will and testament of C. D., late of S., in said county, deceased, praying that he may be discharged from all further responsibility as such surety, for the rea- son that, &c., and that said H. J. may be ordered to furnish a new bond. All persons interested having had due notice thereof, and it appear- ing reasonable and proper that the prayer of said petition be granted ; it is decreed, that said H. J. file in the probate office, on or before the day of next, a new bond, with further and sufficient sureties, in the sum of dollars, for the faithful discharge of his said trust, and that said E. F. be discharged from all further respon- sibility as such surety, whenever such new bond shall have been filed and approved. J. S., Judge of Prolate Gowrt. ' [No. 82.] Petition for have to sue an Administration Bond. To the Honorable the Judge of the Probate Court for the county of . Respectfully represents D. H., of S., in said county, that he is a creditor of the estate of C. D., late of said S., deceased ; that at a probate court holden at , in and for said county, on the -^— APPENDIX. 301 day of , A. D. 18 — , A. B., of W., in said county, was duly appointed administrator of said estate, and gave bond, with E. F. and G. H., both of said W., as sureties, for the faithful discharge of said trust ; that afterwards, to wit, on the day of , 18 — , the said A. B. represented said estate to be insolvent, and that upon such representation commissioners were duly appointed to receive and ex- amine the claims of creditors against said estate ; that said commis- sioners made iheir return to the probate court on the day of last past, and reported the claim of your petitioner against said estate to have been allowed by them ; that more than six months have elapsed since said return was made by said commissioners, but that said A. B. has neglected and still neglects to render any account of his administration of said estate, and is thereby delaying the distri- bution of the assets in his hands among the persons entitled thereto (or state any other maladministration, as the facts of the case require). Wherefore your petitioner prays that he may be authorized to bring an action in the supreme judicial court upon the bond of said admin- istrator in the name of the judge of the probate court, for the recov- ery of the damage sustained by such neglect of the said A. B. Dated this day of , A. D. 18—. D. H. [No. 88.] Decree on the foregoing Petition. At a probate court holden, &c. On the petition of D. H., of S., in said county, representing that he is a creditor of the estate of C. D., late of said S., deceased, and that A. B., administrator of said estate has neglected to render his ac- count of administration, and has thereby delayed the distribution of said estate among the persons entitled thereto, and praying that he may be authorized to bring an action, in the name of the judge of the probate court, upon the bond of said A. B. : It appearing that notice thereof has been given as ordered, and that more than six months have elapsed since the return of the com- missioners, appointed to receive and examine the claims of creditors 26 302 APPENDIX. against said estate was made to this court, and that said A. B. has neglected and still neglects to render and settle his accounts, and is thereby delaying the distribution of said estate, and that said D. H., is aggrieved by such neglect of said A. B. ; it is decreed, that said D. H., be and he is hereby authorized to bring an action in the su- preme judicial court on the bond of the said A. B., in the name of the judge of the probate court, for the recovery of any and all dam- ages sustained by such maladministration of said A. ^. J. S., Judge of Probate Court. [No. 84.] Notice of Appeal to hefikd in the Probate Office. To the Honorable the Judge of the Probate Court for the county of . A. B., of S., in said county represents that he is heir at law of C. D., late of said S., deceased, and is interested in the estate of said de- ceased ; that he is aggrieved by a decree of the probate court, holden at B., in said county, on the day of last past, admitting to probate a certain instrument purporting to be the last will and testa- ment of the said C. D. (or, otherwise designate the decree, as the facts require.) And he hereby gives notice that he claims an appeal from said decree to the supreme judicial court. Dated this day of A. D. 18—. A. B. [No. 85.] Seasons of Appeal, to be fled in Probate Court and served on the adverse Party. To the Honorable the Judge of the Probate Court for the county of , and F. G. (the adverse party) of H., in said county. A. B., of S., in said county, heir at law of C. D., late of said S., deceased, having given due notice at the probate office that he claimed an appeal from the decree of the probate court holden at B., in the APPENDIX. 303 county aforesaid, on the day of ■ last past, admitting to pro- bate a certain instrument purporting to be the last will and testament of said C. D., now files in the probate office his reasons of appeal, as follows, to wit. 1st. Because the said C. D., at the time when he executed said instrument, was not of sound mind. 2d. Because the persons who subscribed said instrument as wit- nesses did not attest and subscribe the same in the presence of the said C. D., &c., &c. Dated this day of , A. D. 18—. A. B. [No. 86.] Petition for leave to enter an Appeal not seasonably claimed. To the Honorable the Justices of the Supreme Judicial Court, next to be holden at in and for the county of — ; — , on the Tuesday of A. D. 18—. Respectfully represents A. B., of S., in said county, that he is heir at law of C. D., late of said S., deceased, and is interested in the estate of said deceased ; that he is aggrieved by a decree of the pro- bate court holden at B., in said county, within two years last past, to wit, on the day of — , A. D. 18 — , admitting to probate a certain instrument purporting to be the last will and testament of the said C. D., copies of which instrument and of said decree are hereto annexed ; that at the time of passing said decree your petitioner was without the United States, and has been without the United States until within the three months last past ; that his omission to claim an appeal from said decree, and to give notice thereof at the pro- bate office, was without default on his part. Your petitioner further represents that the said C. D., at the time when he executed said instrument, was not of sound mind {or state other reasons of appeal in accordance with the facts), and that justice requires a revision of the case. He therefore prays that he may be allowed to enter and prosecute an appeal from said decree of the probate court. Dated this day of , A. D. 18—. A. B. 304 APPENDIX. [No. 87.] Waiver of Appeal, To the Honorable the Judge of the Probate Court and in for the county of B. Respectfully represents A. B., of S., in said county of B., that he is heir at law of C. D., late of said S., deceased ; that on the day of , &c., he gave notice at the probate oifice of his appeal from a decree of the probate court, holden, &c., admitting to probate a certain instrument, purporting to be the last will and testament of said C. D. ; that he hereby waives his said appeal, and consents that, further proceedings may be had in the probate court, in the matter of said will, as if said appeal had not been taken. Dated at, &c. A. B. pSTo. 88.1 Complaint for Affirmation of Decree, where Appellant fails to enter his Appeal. To the Honorable the Justices of the Supreme Judicial Court holden at , in and for the county of — ^ — , on the Tuesday of , A. D. 18—. D. D., of S., in said county, complains that at a probate court hold- en at B., in and for said county, on the day of , A. D. 18 — , the last will and testament of C. D., late of said S., deceased, was duly admitted to probate by a decree of said court, as fully appears from the copy of the record filed herewith, from which decree one A. B., of said S., appealed to this court ; that said A. B. has failed to enter and prosecute his said appeal ; that your petitioner is the executor named in said will (or, is made a legatee in and by said will, &c.), and is interested in the probate thereof. Wherefore your complainant prays that said decree of the probate court may be af- firmed, with costs. Dated this day of , A. D. 18—. D. D. •APPENDIX. 305 [No. 89.] JPetition of JBmland of an Insane Woman that her right of Dower in his Lands may he released. To the Honorable the Judge of the Probate Court for the county of . Respectfully represents A. B., of S., in said county, that he is seised of a certain parcel of real estate situate in said S., bounded and described as follows (here insert a description of the land) ; that he is desirous of conveying said real estate in fee {or, in mortgage), but that A. B., his wife is incompetent, by reason of insanity, to re- lease her right of dower {or, homestead) in the same ; that the in- terests of your petitioner require that such conveyance should be made, and that the right of his said wife in said real estate should be released ; that {here state any particular facts or reasons why the ■petition should be granted). He therefore prays that C. D., guar- dian of said H. B., may be authorized and empowered to join him in a conveyance of said real estate, for the purpose of i-eleasing her right of dower (or, right of homestead) thereinw Dated this day of , A. D. 18—. A. B. [No. 90.] Decree on the foregoing Petition. ■ ss. At a probate court holden, &c. On the petition of A. B., of, &c., representing that he is the owner of certain real estate situate in S., in said county of , bounded {here describe the land), and that he is desirous of conveying the same, and that H. B., his wife, is an insane person, and is therefore incom- petent to release her right of dower {or, right of homestead) in said real estate, and praying that C. D., guardian of said H. B., may be authorized to release her said rights in said land ; and the said H. B. having been notified according to law to appear and show cause why the prayer of said A. B. should not be granted, does not appear to object thereto ; and after a hearing thereon, the court being satisfied that said right of dower {or, right of homestead) ought to be released ; 26* 306 APPENDIX. it is decreed that said C. D., guardian of said H. B., be, and he is hereby, authorized to make said release by joining in any deed of conveyance made by said A. B., or any trustee for him, within five years next after the passing of this decree, whether such deed pass the whole or only separate parcels or lots of said real estate {if the court deems it proper that a portion of the proceeds of the land should he reserved for the use of the wife, add), the said A. B. first paying over to said C. D. the sum of dollars, to be invested and held by said guardian for the beiiefit of the said H. B., if she survives said A. B., the income of said sum to be received and enjoyed by said A. B. during the life of said H. B., or until otherwise ordered by the court, and the principal to be paid over to said A. B., if he survives the said H. B. J. S., Judge of Probate Oourt. APPENDIX. . 307 LIST OF PRINTED BLANKS FURNISHED AT THE PROBATE OFFICES. Administrator's Petition, Citation, and Decree for Appointment. Copy of Citation. Bond. Letter. Affidavit of Notice of Appointment, in time. « « « by leave of Court. Special Administrator's Petition, Citation, and Decree for Appoint- ment. Copy of Citation. Bond. Letter. Administrator's Inventory, with appointment of Appraisers. Executor's Petition, Citation, and Decree for Probate of Will, and Letters Testamentary. Copy of Citation. Bond, common form. " to pay Debts and Legacies. Letters Testamentary, common form. " " to pay Debts and Legacies, Affidavit of Notice of Appointment, in time. " " " by leave of Court. Inventory, with appointment of Appraisers. Administrator with Will annexed — Veiiiian, Citation, and Decree for Probate of Will and Letters of Administration. Copy of Citation. 308 APPENDIX. Administrator de bonis non, with Witt annexed — Petition, Citation, and Decree for Appointment. Copy of Citation. Bond, ) Used for Administrator with Will annexed and de Letters, ) bonis non with Will annexed. Foreign Will — Petition, Citation, and Decree for Allowance, &c. Copy of Citation. Trustee's Petition, Citation, and Decree for Appointment. Copy of Citation. Bond. Letters. Guardian of Minor — Petition, Citation, and Decree for Appoint- ment. Copy of Citation. " of Insane Person — Application, Citation, and Decree for Appointment. Copy of Citation. " of Spendthrift — Complaint, Citation, and Decree for Appointment. Copy of Citation. ^°°'^' ) Used by aU Letters, > ,-, ■,. T . , . ,. . . i Guardians. Inventory, with appointment of Appraisers. ) Account of Administrator — used also by Executors. " of Guardian — used also by Trustees. Citation on Account. Copy of Citation. Distribution of Intestate Estate — Petition, Gtation, and Decree. Copy of Citation. Order of Distribution, Betum, and Final Decree. APPENDIX. 309 Sale of Real Estate to pay Debts, S^c. — Petition, Citation, Decree, and Oath. Copy of Citation. Letter of License, with Affidavit of Notice.. Sale of Real Estate more than enough to pay Debts — Petition, Cita- tion, and Decree. Copy of Citation. Bond and Oath. Letter, with Affidavit of Notice. Sale of Real Estate by Guardian. For Maintenance — Petition, Citation, and Decree.. Copy of Citation. Letters of License, with Affidavit of Notice. For Investment — Petition, Citation, and Decree. Copy of Citation. Letters of License, with Affidavit of Notice. Guardian's Bond and Oath for Sale of Keal Estate. Foreign Guardian's Bond and Oath for Sale of Real Estate. Approbation of Overseers of Poor in Insane and Spendthrift cases. Insolvency — Eepresentation and Decree of. Appointment of Commissioners, their Keport, and Decree to Distribute. Order of Distribution, Return, and Final Decree. Adoption of Children, and Change of their names — Petition, Cita- tion, Appointment of Next Friend, and Decree. Copy of Citation. Certificate of Adoption, &c. Change of Names of Persons — Petition, Citation, and Decree. Copy of Citation. Copy of Decree for Publication and Return. ' Certificate of Change of Name. 310 APPENDIX. Set Off of i7ower— Petition, Citation, and Decree. Copy of Citation. Appointment of Commissioners, their Eeport, and Final Decree. Partition of Seat Estate — Petition, Citation, and Decree. Copy of Citation. Appointment of Commissioners, their Eeport, and Final Decree. Guardian for the Case — Appointment of. Widow's Allowance — Petition and Allowance^ Copy of Allowance. Petition, Citation, and Decree — General Form for all Special Cases. General Citation — For Special Cases. TIMES AND PLACES OF HOLDING PROBATE COURTS. SUFFOLK COUNTY. At Boston, on every Monday in each month, except July. ESSEX COUNTT. At Salem, on the first Tuesday of each month ; at Lawrence, on the second Tuesday of each month, except April, May, July, August, and October; at Gloucester, on the second Tuesday of April and October ; at Newburyport, on the third Tuesday of each month, ex- cept March, May, August, September, and November ; at Haverhill, on the third Tuesdays of May and November; at Ipswich, on the third Tuesdays of March and September. MIDDLESEX COUNTT. At Cambridge, on the second Tuesdays of each month, (except July,) and on the fourth Tuesdays of January, February, March, April, August, November, and December; at Lowell, on the first Tuesdays of February, April, June, September, and December ; at Concord, on the first Tuesdays of January, March, May, and Octo- ber ; at Groton, on the fourth Tuesdays of May and September ; and at Framingham, on the fourth Tuesdays of June and October. WOECESTEK COUNTT. At West Brookfield, on the second Tuesdays of May and Octo- ber ; at Clinton, on the third Tuesdays of May and October ; at Templeton, on the Thursdays next after the third Tuesdays of May and October ; at Barre, on the Fridays next after the third Tuesdays of May and October ; at Milford, on the fourth Tuesday of May and the Wednesday next after the fourth Tuesday of October; at Ux- 312 APPENDIX. bridge, on the fourth Tuesday of October ; at Fitchburg, on the Wed- nesdays next after the third Tuesdays of May and October ; and at Worcester, on the first Tuesdays of every month. ' HAMPSHIRE COUNTY. At Northampton, on the first Tuesday of every month; at Am- herst, on the second Tuesdays of January and August; at Belcher^ town, on the second Tuesdays of May and October ; and at Chester- field, on the third Tuesdays of May and October. HAMPDEN COUNTY. At Springfield, on the first Tuesdays of Januarys February, March, April, June, July, and November, and on the fourth Tuesdays of April, August and September ; at Westfield, on the third Tues- days of March, June, September, and December ; at Monson, on the second Tuesday of June ; and at Palmer, on the second Tuesday of September. FRANKLIN COUNTY. At Greenfield, on the first Tuesday of every month, except No- vember ; at Northfield, on the second Tuesdays of May and Septem-. ber; at Orange, on the second Tuesday of March and December; at Lock's Village, in Shutesbury, on the second Tuesday of July'; at Conway, on the third Tuesday of May; at Charlemont, on the fourth Tuesday of May ; at Shelburne Falls, on the second Tuesday of February and fourth Tuesday of October. BERKSHIRE COUNTY. - At. Lenox, on the first Tuesdays of January, February, March,. April, May, June, September, October, and December ; on the third Tuesday of July, and on the second Tuesday of November ; at Great Barrington on the Wednesdays next after the first Tuesdays of February and May, next after the third Tuesday of July, and next after the second Tuesday of November ; at Lanesborough, on the- second Tuesdays^ of January and October, and on the fourth Tues- days of April and July ; at Adams, on the Wednesdays next after the second Tuesdays of January and October, and next after the fourth Tuesdavs of Api-il and July. APPENDIX. 313 NORFOLK OOTJNTT. At Dedham, on the first Tuesday of every month ; at Quincy, on the fourth Tuesdays of February, May, August, and November ; at Eoxbury, on every Saturday, except the third, fourth, and fifth Satur- days of July, and the first and second Saturdays of August ; at Ti^'fentham, on the third Tuesdays of May, August, and November • at Medway, on the third Tuesdayg«of February, June, and October. BRISTOL COUNTY. At Fall River, on the first Friday of January, April, and October, and the second Friday of July ; at New Bedford, on the first Fridaj^ of February, May, August, and November ; and at Taunton, on the first Friday of March, June, September, and December of each year. PLTMOTTTH COUNTY. At Plymouth, on the second Monday of every month, except July and August ; at Wareham, on the fourth Monday of October ; at East Bridgewater, on the fourth Mondays of February and Decem- ber ; at Hingham, on the fourth Monday of March ; at Middle- borough, on the fourth Mondays of April and January, and second Monday of July; at Abington, on the fourth Mondays of May, August, and November; at South Scituate, on the fourth Monday of June; at Bridgewater, on the fourth Monday of September. BARNSTABLE COUNTY. At Barnstable, on the second Tuesdays of January, February, March, August, September, and December, and on the third Tues- days of May and June ; at Sandwich, on the second Tuesday after the first Monday of November ; at Falmouth, on the second Wed- nesday after the first Monday of November ; at Harwich, on the third Monday of April and the last Monday of October ; at Brew- ster, on the Tuesday next after the third Monday of April ; at Dennis, on the Thursday next after the second Tuesday of Octo- ber ; at Orleans, on the Wednesday next after the third Monday of April and on the Tuesday next after the last Monday of October ; at Wellfleet, on the Wednesday next after the last Monday of Oc- 27 314 APPENDIX. tober ; at Truro, on the Thursday next after the third Monday of April ; and at Provincetown, on the Friday next after the third Monday of April and on the Thursday next after the last Monday of October. DUKES COTJNTT. At Edgartown, on the third ]V:Jj)ndays of January and July, afcd on the first Mondays of March and December ; at Holmes's Hoje Village in Tisbury, on the third Monday of April and the first Mon- day of September, and at "West Tisbury, on the first Monday of June and the third Monday of October, in eacfi year. NANTUCKET COUNTY. At Nantucket, on the Thursday next after the second Tuesday of every month. PEOyiSIONS OF THE ACT OF CONGRESS TO PROVIDE INTERNAL REVENUE (1862, chap. 119), APPLICABLE TO PROBATE PROCEEDINGS, STAMP DUTIES. Upon the probate of will, or letters of administration: Where the estate and effects for or in respect of which such probate or letters of administration applied for shall be sworn or declared not to exceed the value of two thousand five hundred dollars 50 To exceed two thousand five hundred dollars, and not exceed- ing five thousand dollars, 1 00 To exceed five thousand dollars, and not exceeding twenty thousand dollars, 2 00 To exceed twenty thousand dollars, and not exceeding fifiy thousand dollars, 5 00 To exceed fifty thousand dollars, and not exceeding one hun- dred thousand dollars, , 10 OX) Exceeding one hundred thousand dollars^ and not exceeding one hundred and fifty thousand dollars, 20 00 And for every additional fifty thousand dollars, or fractional part thereof, 10 00 The stamp on the probate of a will is afiixed to the probate decree, not to the letter testamentary or of administration with the will annexed. The stamp on letters of administration is affixed to the letter. Under the decision of the commissioner of internal revenue, other papers used in proceedings in probate court are required to be stamped as follows : — Bonds given by executors, administrators, guardians, and trustees, for the faithful discharge of their respective trusts, 50 316 APPENDIX. Other bonds that may be required in the course of the settlement of an estate, such as the bond given hy an administrator on being licensed to sell real estate, &c., do not require a stamp. Inventory, 05 Justice's certificate of minor's choice of guardian, 05 Approbation of overseers of the poor for sale of real estate, 05 Certificate of adoption of child, 05 Any certificate issued by judge or register of probate court, 05 The person applying for the probate of a will, or for letters of ad- ministration, should file with his petition an aflSdavit sworn to before a justice of the peace, showing the value of the estate he represents, in order that the amount of stamp-duty may be correctly determined. The affidavit may be as follows. Executor's Affidavit of Value. B , ss. In the matter of the estate of C. D., late of S., in said county, deceased. The subscriber, who has made application for the probate of the will of said deceased, on oath declares, that, to the best of his knowl- edge and belief, the estate and effects of said deceased, for or in r^pect of which he has applied for such probate, do not exceed the value of (this blank to be fEed with one of the sums named in the above schedule) thousand hundred dollars. A. B, Administrator's Affidavit of Value. H , ss. In the matter of the estate of C. D., late of S., in said county, deceased. The subscriber, who has made application to be appointed admin- istrator of said estate, on oath declares that, to the best of his knowl- edge and belief, the estate and effects of said deceased; for or in APPENDIX. 317 respect of which he has applied to be appointed administrator, do not exceed the value of thousand hundred dollars. A. B. H , ss. 186 . Subscribed and sworn to before me. Justice of the Peace. Legacies and Distributive Shares of Personal Property. Sec. 111. And he it further enacted, That any person or persons haying in charge or trust, as administrators, executors, or trustees of any legacies or distributive shares arising from personal property, of any kind whatsoever, where the whole amount of such personal prop- erty, as aforesaid, shall exceed the sum of one thousand dollars in actual value, passing from any person who may die after the passage of this act possessed of such property, either by will or by the intes- tate laws of any State or Territory, or any part of such property or interest therein, transferred by deed, grant, bargain, sale, or gift, made or intended to take effect in possession or enjoyment after the death of the grantor or bargainor, to any person or persons, or to any body or bodies, politic or corporate, in trust or otherwise, shall be, and hereby are, made subject to a duty or tax, to be paid to the United States, as follows, that is to say : First. Where the person or persons entitled to any beneficial inter- est in such property shall be the lineal issue or lineal ancestor, brother or sister, to the person who died possessed of such property, as aforesaid, at and after the rate of seventy-five cents for each and every hundred dollars of the clear value of such interest in such property. Second. Where the person or persons entitled to any beneficial interest in such property shall be a descendant of a brother or sister of the person who died possessed, as aforesaid, at and after the rate of one dollar and fifty cents for each and every hundred dollars of the clear value of such interest. Third. Where the person or persons entitled to any beneficial interest in such property shall be a brother or sister of the father or 27 * 318 APPENDIX. jwother, or a descendant of a brother or sister of the father or mother of the person who died possessed, as aforesaid, at and after the rate of three dollars for each and every hundred dollars of the cleai- value of such interest. Fourth. Where the person or persons entitled to any beneficial interest in such property shall be a brother or sister of the grand- father or grandmother, or a descendant of the brother or sister of the grandfather or grandmother of the person who died possessed, as aforesaid, at and after the rate of four dollars for each and every hundred dollars of the clear value of such interest. Fifth. Where the person or persons entitled to any beneficial interest in such property shall be in any other degree of collateral consanguinity than is hereinbefore stated, or shall be a stranger in blood to the person who died possessed, as aforesaid, or shall be a body politic or corporate, at and after the rate of five dollars for each and every hundred dollars of the clear value of such interest : Provided, That all legacies or property passing by will, or by the laws of any State or Territory, to husband or wife of the person who died possessed as aforesaid, shall be exempt from tax or duty. Sec. 112, And he it further enaeted, That the tax or duty afore- ;Said shall be a lien and charge upon the property of every person who may die as aforesaid, until the same shall be fully paid to and dis- charged by the United States ; and every executor, administrator, or other person who may take the burden or trust of administration upon such property shall, after taking such burden or trust, and before paying and distributing any portion thereof to the legatees or any parties entitled to beneficial interest therein, pay to the collector or deputy collector of the district of which the deceased person was a resident, the amount of the duty or tax, as aforesaid, and shall also jmake and render to the assistant assessor of the district of which the deceased person was a resident a schedule, list, or statement of the amount of such property, together with the amount of duty which has accrued or should accrue thereon, verified by his oath or affirmation, to be administered and certified thereon by some magistrate or officer having lawful power to administer such oaths, in such form aJid man- ner as may be prescribed by the commissioner of internal revenue, which schedule, list, or statement shall contain the names of each and ' every person entitled to any beneficial interest therein, together with APPENDIX. 319 the .clear value of such interest, which schedule, list, or statement shall be by him delivered to such collector ; .and upon such payment and delivery of such schedule, list, or statement, said collector or deputy coDector shall grant to such person paying such duty or tax a receipt or receipts for the same in duplicai:e, which shall be pre- pared as is hereinafter provided ; such receipt or receipts, duly signed and delivered by such collector or deputy collector, shall be sufficient evidence to entitle the person who paid such duty or tax as having taken the burden or trhst of administering such property or personal estate to be allowed for such payment by the person or persons en- titled to the beneficial interest in respect to which such tax or duty was paid ; and such person administering such property or personal estate shall be credited and allowed such payment by every tribunal which, by the laws of any State or Territory, is or may be empowered to decide upon and settle the accounts of executors and administra- tors ; and in case such person who has taken the burden or trust of administering upon any such property or personal estate shall refuse or neglect to pay the aforesaid duty or tax to the collector or deputy collector, as aforesaid, within the time hereinbefore provided, or shall neglect or refuse to deliver to said collector or deputy collector the schedule, list, or statement of such legacies, property, or personal es- tate under oath, as aforesaid, or shall deliver to said collector or deputy collector a false schedule or statement of such legacies, prop- erty, or personal estate, or give the names and relationship of the persons entitled to beneficial interests therein untruly, or shall not truly and correctly set forth and state therein the clear value of such beneficial interest, or where no administration upon such property or personal estate shall have been granted or allowed under existing laws, the proper officer of the United States shall commence such proceedings in law or equity before any court of the United States as may be proper and necessary to enforce and realize the lien or charge upon such property or personal estate, or any part thereof^ for which such tax or duty has not been truly and justly paid. Under such proceedings the rate of duty or tax enforced shall be the highest rate imposed or assessed by this act, and shall be in the name of the United States against such person or persons as may have the actual or constructive custody or possession of such property or personal estate, or any part thereof, and shall subject such property or- per- 320 APPENDIX. sonal estate, or any portion of the same, to be sold upon the judg-i ment or decree of such court^ and from the proceeds of such sale, the amount of such tax or duty, together with all costs and expenses of every description to be allowed by such court, shall be first paid, and the balance, if any, deposited according to tbe order of such court, to be paid under its direction to such person or persons as shall establish their lawful title to the same. The deed or deeds, or any proper con- veyance of such property or personal estate, or any portion thereof, so sold under such judgment or decree, executed by the officer law- fully charged with carrying the same into effect, shall vest in the purchaser thereof all the title of the delinquent to the property or personal estate sold under and by virtue of such judgment or decree, and shall release every other portion of such property or personal estate from the lien or charge thereon created by this act. And every person or persons who shall have in his possession, charge, or custody, any record, file, or paper, containing or supposed to contain any information concerning such property or personal estate, as afore- said, passing from any person who may die, as aforesaid, shall ex- hibit the same at the request of the collector of the revenue, his deputy, or agent, and to any law officer of the United States, in the performance of his duty under this act, his deputy, or agent, who may desire to examine the same ; and if any such person, having in his possession, charge, or custody, any such records, files, or papers, shall refuse or neglect to exhibit the same on request, as aforesaid, he shall forfeit and pay the sum of five hundred dol- lars; and in case of any delinquency in making the schedule, list, or statement, or in the payment of the duty or tax accruing, or which should accrue thereon, the assessment and collection shall be made as provided for in the general provisions of this act: Pro- vided, In all legal controversies where such deed or title shall be the subject of judicial investigation the recital in said deed shall be presumed to be true, and that the requirements of the law had been complied with by the officers of the government. A. B, INDEX. (See separate Index -to Forms of Petitions, &c., post.) A. ABSENT HEIR, Page presumption of death of, 19S no presumption of marriage of, or issue, 197 ACCOUNTS, to be rendered by executors, &c., in one year after giving bond and from time to time, &c., 163 by public administrators, when, 163 by special administrators, wheneyer required by court, 163 by guardians, within one year, and once in three years thereafter, and when court directs, 163 by trustees, within one year, and when court directs, . 163 executor, &c., fiiiling to render, may be cited, ^ 164 citation to render may issue, though executor, &c., has settled with parties and taken their receipts, 164 citation to render, how issued, 165 how to be stated, 165, 179 second and additional, how to be stated, 178 when presented, notice to be given, unless parties interested assent, . 182 who entitled to notice, 182 person presenting, may be interrogated, ; 183 allowance of, conclusive, unless appealed from, 183 settled, when may be opened on application of person interested, 184 to correct error, 184 when one of two joint executors or administrators dies, &c., to be rendered by the other, 164 when sole executor, &e., dies, by whom to be rendered, 164 of joint executors, &c., may be allowed on oath of one, 184 to be sworn to in court, unless, 184 separate, to be rendered by guardian of several wards jointly in- terested, 182 322 INDEX. ACCOUNTS, {contimed.) Page executors and administrators chargeable with the value of the personal estate as inventoried, 166 gain on sale of personal estate, 166 value of personal estate not inventoried 166 proceeds of real estate sold, 166 all interest, profit, and income of personal estate, . 166-168, notes value of property lost through negligence, 167 when chargeable with interest on funds in their hands, 169 compound interest, 170-181, note rents of real estate, 170 chargeable with debts due from themselves, 171 when executor chargeable with trust funds, 168, 181 allowed for debts paid, 172 when for assessments, &c., paid, 172 as to claims barred by statute of limitations, 173 for what claims, when estate is insolvent, 173 as to funeral expenses, 174 expenses of last sickness of deceased, ' 174 charges of administration and services, 174-176 for loss on sale of personal estate, 177 allowances made by court to widow or children, 177 duties paid under law of United States, 320 how allowed for debts due themselves, 177 interest on such debts, 178 guardians and trustees chargeable with value of personal estate as inventoried, 179 gain on sale of personal estate, 179 all income of real estate, 179 all interest accruing from trust fund, 179 loss of interest arising from neglect to invest, 180 losses from improper investments, 180 with compound interest, when, 180 allowed for expense of ward's support and education, when, 181 interest on advances, when, 182 expenses of guardianship and services, 182 trustees allowed for expenses of trust and services, 182 when allowed as final discharge of executors, &c., 202 ADMINISTRATION, to whom granted, and iu what order, 68-70 not granted to minors, 72 original, not granted after twenty years, 67 except when property accrues, or first becomes known, after that period, 67 or when necessary to distribute dividends of insolvent estate,. 67, note INDEX. 323 ADMINISTRATION, {continued.) Page revoked on proof of will, 100 jurisdiction of probate court in granting, 6, 68 court having jurisdiction, first taking cognizance of, to retain juris- diction throughout, 6 first granted, to extend to all estate of deceased in State, 6 ■when to be granted to public administrator, 74 de bonis nan, when granted, 65 to whom granted, ; 74 with, will annexed, when granted, 65 to whom granted, 64 de bonis nan, with will annexed, when granted, 66 to whom granted, 74 special, when to be granted, 66 ancillary, 66 other than original, may be granted after twenty years, » . . . 67 expenses of, allowed to administrator in his account, . . . < 174 ADMINISTRATORS, who entitled to be, and in what order, 68-73 widow and next of kin, 68-71 husband, 73 creditors, 72 public administrator, 74 who are suitable to be, 71 minor cannot be, 72 register of probate cannot be, in his county, 13 citizen of another State may be, 72 to give bond, approved by judge, 78 when exempted from giving bond for proceeds of sale of real estate, 80 when may he required to give new bond, 230 may be removed, for failure to give new bond when required, .... 97, 231 for insanity, 97 evident unsuitability, 97 maladministration, 98 letters to, revoked, if will is afterwards proved, 100 marriage of administratrix extinguishes her authority, 100 may resign by leave of court, 100 lawful acts of, remain valid, though removed, 100 to return inventory, 101 may sell personal estate, Ill may adjust claims by compromise or arbitration, under authority of court, 113 to give notice of appointment. within three months, 115 to make affidavit that notice of appointment was given, 115 proceedings when notice was not given, 116 324 INDEX. ADMINISTRATORS, (continued.) Page actions against, limited to two years, 116 except when they receiye new assets, &c, 110 or when action fails from formal defect, 117 liable to actions for two years, though estate has been distributed to heirs 122, note not liable to actions within a year, except, 119, 121 when may pay debts without liability, 119, 122 may be licensed to sell lands for payment of debts and charges (see Sale of Lands), 140 to convey lands, according to agreement of intestate, under order of court, 160 may sell vested, contingent, &c., interests in real or personal estate when authorized, 161 when to render accounts (see Accounts), 163 compensation of, 174 bound to distribute intestate's estate as ordered by court, 195 how to perpetuate evidence of distribution, 202 bond of, may be put in suit (see Bonds), 231 of insolvent estates, when to represent estate insolvent, 121 failing to represent insolvency of estate, may be liable personally, 123 how may pay preferred debts without liability, 123 to oppose allowance of unjust claims presented to commissioners, 128 may appeal fi:om decision of commissioners, 130 when appeal may be waived and claim submitted to arbitration, 132 failing to settle their accounts in six months after commissioner's return, liable to be removed, and for damages, 133 how to make distribution, 134 how may perpetuate evidence of distribution, 135 with will annexed, when to be appointed, 65 bond of, 78 de bonis mm, when may be appointed, 65, 66 bond of, .... .' •. 78 who entitled to be, 74 to give notice of appointment, 115 failing to give notice, not to have benefit of statute of limi- tations, '. 118 to be further liable, if new assets are received, 118 ADMISSION of assets, by executor who is residuary legatee and gives bond to pay debts, &c,, conclusive, 62, 124 ADOPTION OF CHILDREN, by order of probate court, 244 any inhabitant of State may petition for, in county of his residence, . 244 husband or wife of petitioner to join in petition, 244 INDEX. 325 ADOPTION OP CHrLDREN, (continued.) Page application for change of child's name may be made in same pe- tition, 244 parent, guardian, or next of kin, if any, to consent, 244 . otherwise, person to be appointed to act as next friend of child in matter of consent, 244 parent insane, imprisoned for three years, or has deserted chUd, considered dead, as to proceedings, 244 when notice of petition to be given, and how, 245 if child fourteen years of age, adoption not to be without his con- sent 245 child adopted to be heir of parents by adoption, 245 deprives natural parents of all legal rights as to child, 245 petitioner or child may appeal, 246' parent, not notified before hearing, may apply for reversal of adoption, within one year after actual notice, 246 ADTANCEMENTS, may be made of real or personal estate, 198 to any child or lineal descendant, 198 considered in division among heirs as part of share, 198, 200 not to be refunded, though exceeding share, 198 interest not computed on, 198 questions concerning, how determined, 198 how to be proved, 199 value of, how estimated, 200 not to be computed, 200 AFFIDAVIT, to be made by executor, &c., that notice of appointment was given, . . . 115 effect of, 115 to be made by executor, &c., that notice of time and place of selling land was given, 150 effect of, 150 AGBEEMENT, written, for conveyance of land, specific performance of, 160 . ALLOWANCE, to widows, for necessaries, may be made by court, 106 to minor children, if there is no widow, 106 may be whenever there is personal estate, whether deceased left will or not, 107 amount of, 107 facts to be considered in making, 107 to be made from personal estate only, 108 not to be made from proceeds of sale of real estate, 109 proceedings on application for, : 109 appeal from decree making, stays proceedings, 109 28 326 INDEX. ALLOWANCE, (continued.) Page death of widow, while appeal is pending, effect of, 109 to widow or minor children, from income of estate in hands of a special administrator, 108 may be paid, although decree is appealed from, if petitioner gives bond, &c., 108 to wives of insane persons under guardianship, 110 not limited to necessaries, 110 ANCILLARY ADMINISTRATION, when granted, 66 may be granted, although no administration in place of deceased's domicil, 67 or although will of deceased not proved in place of his domicil, . . 67 creditors here, to be first paid from estate, 138 if estate is insolvent, to have just proportion, 139 balance of estate, how disposed of, 139 APPEAL, from probate court to supreme judicial court may be by any person " aggrieved," 238 to be claimed and notice given at probate office, within thirty days,. . 240 to be entered at rule day of supreme court next after fifty days, 240 reasons of, to be filed by appellant in probate office, and served on adverse party fourteen days before entry 240 appellant not required to recognize or give bond, 240 omitted, may be entered on petition and leave, 240 proceedings in such case, 240 stays proceedings under order appealed from, 241 except as to appointments of special administrators, and certain allowances to widows and children 80, 108 may be waived, and proceedings had in probate court, 242 to be entered on docket with cases in equity, 242 may be tried by jury, 242 if not entered, decree appealed from may be affirmed on complaint, . . 242 from commissioners of insolvent estates, may be by creditor or exec- utor, 130 when taken to the supreme judicial court, 130 superior court, 130 notice of, to be given at probate office and to creditor, 131 when to be entered, 131 proceedings on 131 party prevailing entitled to costs, 131 not seasonably taken, how may be allowed, 131 effect of, as to distribution among creditors, 133 may be waived and claim submitted to arbitrators, 132 APPRAISEMENT of estates. (See Inventori/.) INDEX. 327 ARBITRATION, Page of demands generally, court may authorize, 113 of claims presented to commissioners of insolyent estates, when appeal has been taken and waived, 132 proceedings on, 132 of claim of executor or administrator against deceased, 177 proceedings on, 177 ASSISTANT REGISTER OE PROBATE, to be appointed in certain counties, 13 to take oaths prescribed by the constitution, 13 to give bond, 13 to perform duties under direction of register, 13 in case of absence, neglect, &c., of register, may complete records and act as register, 13 ATTESTATION CLAUSE, of wiU, 21 ATTESTING WITNESSES, number necessary to subscribe will, 16 to subscribe in testator's presence, 19 presence of testator, what is, 19 presumptions as to attestation of, 21 need not subscribe in presence of each other, 21 may subscribe by " mark," 21 must be competent at time of attesting, 23 subsequent incompetency of, not to prevent probate, 23 may be incompetent by reason of interest, crime, or deficiency of understanding, 22 what crimes disc[ualify, 23 competency of, restored by pardon, 23 not restored by remission of sentence, 23 devise to, void, unless, &c., 22 may give their opinions as to testator's sanity, 28 attestation of, not evidence that witness believed testator to be sane, 29 declaration of deceased, 29 note testimony of one, when sufficient tp prove will, 47 when all must appear to testify, 47 how summoned, 47 diligence required when searching for absent, 48 handwriting of, when may he proved, , 47 marks of, how proved, 48 failure of recollection of, 49 may be contradicted, 28, 49 328 INDEX. B. BONDS, Page given to probate courts, sureties in, to be inhabitants of this State, 229 not sufficient, unless approved by judge in writing, 229 given by joint executors, &c., may be separate or joint, 229 to be made payable to the judge and his successors, 229 suggestions as to contents of, > 230 when new, may be required, 230 surety in, may be discharged on petition, 231 liable for breaches before new bond is approved, 231 may be put in suit in name of judge, 231 by judgment creditor, 232 by creditor of insolvent estate, after decree of distribution, . . „ . . 232 by heir, after decree of distribution, 232 by any person aggrieved, by leave of court, 232, 236 at any time within twenty years after breach, 234 proceedings on application for leave to sue, 234, 236 appeal lies on refusal of application, 234 when judge is obligor in bond given to former judge, register may authorize suit, 235 suit to be brought in supreme judicial court, 235 writ, how to be indorsed, 235 indorsers liable for costs, 235 judgment and execution, how rendered and awarded, 235 to whom money recovered, to be paid, 235 scire facias may issue on original judgment for damages for new breach, 236 actions against sureties in guardian's bond limited to four years from guardian's discharge, 236 BROTHEKS, when entitled to administer as next of kin, 68-70 when to inherit, 187-193 c. CHANGE OP NAME, may be ordered by probate court, 246 not made unless for reasons consistent with public interest and satis- factory to court, 246 petition to be in county where party resides, 246 when notice of petition vo be given, 246 of child, may be made on petition for his adoption, 246 when decreed, public notice to be given, 246 certificate to issue on proof of such notice, 246 judge to make annual return of changes of name, 247 INDEX. 329 CHILDREN, Page when entitled to administer as next of kin, 68-70 when entitled to allowance from personal estate of deceased parent, . . 106 minor, entitled to articles of apparel and ornament, 106 inherit parent's estate, 187-193 when take estate by right of representation, 189 share in parent's estate of, dying under age, and unmarried, descends, &c., 187 deceased, issue of, inherit by right of representation, 189 posthumous, inherit as if born in parent's lifetime, 191 not provided for by father's will, to share, &c 193 derisees and legatees to contribute to share of, 193 omitted in parent's will, to share in estate unless omission was inten- tional, 191 parol evidence of testator's intent admissible in such cases, 192 how to share in parent's personal estate, 193 advancements to, deemed in division of estates as part of share, 198 not to be refunded, though it exceeds share, 198 interest not computed on, 198 questions as to, how determined, 198 how to be proved, 199 merged by subsequent will, 200 value of, how ascertained, 200 illegitimate, heirs of mother and maternal ancestor, 189 estate of, descends to mother, 189 deemed legitimate, if parents have intermarried and acknowl- edge, 189 omitted in parent's will not to share in his estate, 192 when to administer as next of kin, 68-70 how may be adopted. (See Adoption of Children.) CITATIONS, may be issued by register of probate on any day, 8 service of, 46 CODICIL, included in the term " wiU," 24 how to be executed, 24 may give effect to unattested will, 24 will executed by person under age, &c., 25 effect of, by republication, 25 may revoke will, 41 may not be revoked, though wiU is, 40 COMMISSIONERS, to examine claims against insolvent estates (see Insolvent Estates),. . . 125 make partition (see Partition), 208 assign dower (see Dower), 222 28 * 330 INDEX. COMMISSIONEES, {continued.) Page may be appointed to determine amount of income of real estate re- ceived by executor, &o., 171, note "COMPETENT WITNESSES." (See Attesting Witnesses.) COMPLAINT, against person concealing will, 59 embezzling estate of deceased person or ward, 104 for non-entry of appeal, 242 COMPROMISE, of claims, court may authorize executors, &c., 113 proceedings for, 113 CONCEALMENT, of will, proceedings for discovery, 69 fraudulent, of estate of deceased person or ward, proceedings for discovery, 104 CONTINGENT RIGHTS, in real or personal estate, may be sold by executors, &e., by order of court, 161 notice given of petition as in cases of sale of lands, 162 CONTRACT, in writing, for sale of land, specific performance of, 160 COSTS, may be awarded in contested cases in discretion of court, 8 general rule as to allowance of, 8, note of suit, paid by executor, &c., allowed in his account, unless, 175 CREDITOR, may be attesting witness, 22 when entitled to administer, 72 may complain in cases of embezzlement, &c., of estate of deceased person or ward, 104, 105 may be witness in support of petition to sell lands to pay debts, 145 not to bring actions against executor, &c., after two years, except, . . . 116 whose right of action accrues after two years, how may proceed 118 not to bring action against executor, &c., within one year, except,. . . 119 when may proceed against heirs, legatees, &c., of deceased person,.. 119 when may appeal from decree of probate court, 239, 240, notes of insolvent estates, who are preferred, 121 when required to refund money paid by executor, &c., 122, note to prove claim before commissioners, 125 allowed six months to prove claim, ^ . . 125 and further time by leave of court, 125 of deceased copartner may prove claim, . . , 127 whose claim is not matured may prove it, 127 if secured, must waive security or prove only balance of claim, 127 INDEX. 331 CEEDITOB, (continued.) Page having contingent claim, how may proceed, 129 may appeal from commissioners 130 remedy of, when appeal not taken in time, 181 may submit claim to arbitration, if appeal is waived, 132 not to bring actions after representation of insolvency, except, 135 claim of, if not presented to commissioners, barred, unless there are new assets, 136 may cause commission to be reopened when there are new assets,... 136 claim of, not barred by lapse of time, when there are new assets,.. .^. 137 may sue after eighteen months, if question of insolvency is not then determined, 137 if assets are sufficient, to be paid in full, 137 otherwise, to be paid ratably, 137 preferred, paid in full,. 134 unclaimed dividends, when divided among, 135 of deceased foreigners, claims how paid, : 139 CURTESY, tenant by, right of, not affected by statute of descent, 189, note D. DEATH, of absent person presumed after seven years, 77, 196 of several persons, by same calamity, presumed to be simultaneous,. 197 DEBTS, &c., outstanding, when may be sold by executors, &c., 112 proceedings in such case, 112 DECLAEATIONS OE TESTATOR, when admissible in evidence as to execution of will, 29 to show his mental condition, 34 as to manner of disposing of estate, 34 not admissible to prove intoxication at time of executing will, 33 or that tmdue influence was used, 37 as to revocation of will, 39 DECKEES OE PEOBATE COURT, to be in writing and recorded, 7 having jurisdiction, conclusive, unless appealed from, 5 DESCENT OE REAL ESTATE, what real estate descends, 186 to children, and issue of deceased children, 187 when to father, .■ 187 when equally to mother, brother, and sister, ''. 187 when to other kindred, 187 share of child dying under age and unmarried, 187 when to widow, 188 332 INDEX. DESCENT OF REAL ESTATE, {continued.) Page to husband,. 188 escheat to commonwealth, 188 illegitimate child beir of mother and maternal ancestor, 189 estate of illegitimate descends to mother, -. 189 does not affect tenant by the curtesy, 189 " right of representation," 189 who are next of kin, 190 posthumous chUdren inherit, 191, 193 cblldren omitted in wUl'iaherit, • 191 DEVISE, to attesting witness void, unless there are three other competent wit- nesses, > 22 DEVISEES, to contribute to share of posthumous child, or child omitted in parent's will, unless, 193 DISCO VEirr, proceedings for, in case of concealment of will, 59 / embezzlement, &e., of property of deceased persons and wards, 104 DISTRIBUTION, Of intestate estates, to children and lineal descendants, 187, 193 posthumous children, .'. 191, 193 children omitted in parent's will, 191, 193 father, 187, 193 when equally to mother, brothers, and sisters, 187, 193 when to other kindred, 187, 193 who entitled to, as next of kin, 190, 196 when widow takes one third after debts, &c., paid, 194 share of widow, when husband dies without issue, 194 who waives provision in husband's will, 194, note decree of, when necessary, 194 to designate heirs by name, and fix share of each, 195 not to regard assignments by heir, 196, note when to be made, 197 how made, where there have been advancements, 200 money not claimed by heir to be deposited in savings bank 202 so deposited, how paid to person entitled, 202 evidence of, how perpetuated, 202 decreed thirty days after commissioners' return, 183 effect upon, of appeal, 133 further to be made, if whole assets are not distributed by first, 133 separate, of partnership and individual estate, 134 unclaimed dividends to be deposited in savings bank, 135 bow distributed, 135 INDEX. 333 DISTRIBUTION, Of insolvent estates, Page dividends deposited, how paid to person entitled, 202 evidence of, how perpetuated, 202 of insolvent estates of deceased foreigners, creditors, entitled to proportionate share of entire estate, 139 balance, how disposed of, 139 DOWER, may be assigned by probate court, when husband died seised of lands, and heirs or devisees do not object, 214 may be assigned by heirs, without order of court, 214, note may be assigned by guardian in ward's land, 214, note when estate of dower exists, 215 if heirs do not object, widow may occupy land jointly with them, without assignment, 215, note barred by divorce for wife's adultery, 216 not barred by divorce from bed and bosrd, 216 not assigned in wild lands, 216 in lands owned by husband as tenant in common, 217 not in lands held for partnership purposes, 217 in mortgaged lands, when, , 217 in leased lands, when, 218 widow may waive provision in husband's will, and take, 219 not to take, unless such provision is waived, or unless it ap- pears by the will that husband intended she should have both, 219 to file waiver in probate office, within six months, 220 barred by jointure settled by wife's assent, before marriage, 220 by pecuniary provision in lieu of, by wife's assent, 220 by jointure, &o., without assent, or made after marriage, unless waived, &c., 221 must be claimed within twenty years from husband's death, except,.. 221 proceedings for assignment, to be by petition, 221 if land was owned in common, notice to be given to co-tenant, 222 commissioners to be appointed to assign, 222 person employed in probate office not to be in his county, un- less, 10, 18 to be sworn, 222 warrant to, may be revoked, 8 to first make partition,.if land was owned in common, 223 to be so assigned that widow shall have one third of income, 223 how to be assigned when estate is not divisible, 223 return of commissioners, what to contain, 224 assignment, confirmed by court, 225 wTiere to be recorded, 225; tenant in, evicted Or deprived of jointure, &c., may be endowed anew, 225 334 INDEX. DOWER, {continued.) Page right of insane married woman to, in husband's lands may be re- leased by guardian by leave of court, 248 in such case, husband to petition, 248 notice and hearing on petition, 248 guardian may be required to hold one third of proceeds of sale for benefit of wife, for her life, &o., 249 trustee of husband may convey land free of dower, when pro- vision has been made for wife and court authorizes, . . . 249 guardian authorized to release in like case, 249 proceedings to be in county where husband resides, if an in- habitant of State, 250 otherwise, in county where land lies, 250 certified copy of all final decrees or orders to be recorded in re- gistry of deeds, 250 estate in lieu of, when husband dies intestate, and without issue, .... 226 widow entitled, in such case, to half of lands for life, 226 and may use,, clear, &c., wild lands, 226 if she chooses dower, must file her election in probate office, with- in six months, 226 present worth of estates in, 226 DTTTIES, rates of, under revenue law of United States on legacies and distribu- tive shares, 317 t» be a lien on property of deceased person, ., 318 statement of, to be made to assistant assessor, 318 to be paid to collector, or deputy collector, 319 if not paid, property to be sold upon judgment of United States court, 320 stamp, on papers used in proceedings in probate court, 315 E. EMBEZZLEMENT, of estates of deceased persons, or wards, 104 proceedings for discovery, 104 EQUITY, jurisdiction of probate court in relation to trusts created by will, 96 ESTATE IN LIEU OF DOWER, when husband dies intestate and without issue, 226 widow entitled to half of lands of life, 226 and may use, clear, &c., wild lands, 226 if widow elects to take dower, must file election in probate ofilce, within six months, 226 •. ESTATE BY THE CURTESY, not affected by the statute of descents, 189 INDEX. 335 EVIDENCE, P»g« on question of sanity of testator, 27-35 declarations of testator, how far admissible, 29, 33, 84, 36, 87, 89 of handwriting of attesting witness, when admissible, 47 of "mark," 17, 48 parol, admissible, that testator intentionally omitted to provide for child, 192 perpetuation of, that executor, &c., gave notice of appointment, 115 notice of time and place of sale of lands, 150 of payments under order of distribution, 135, 202 presumption, of regularity of proceedings of probate court, 7 of testator's knowledge of contents of will, 19 of sanity, 27 as to attestation of witnesses, 21 of testator's intention to revoke, 38, 40 of death of absent person, 77, 196 EXECUTION, land held on, by executor, &c., deemed personal assets, Ill may be sold, before foreclosure of right of redemption, in same manner as personal estate, Ill if not sold or redeemed, to be distributed as personal estate, 213 for costs, may be issued by probate courts, 8 may issue against heir, who neglects to pay his share of expense of partition, 211 EXECUTORS, how appointed, 60 who may be, 60, 61 minor cannot act as, 60 if minor, the other executor, if any, to act alone, 60 register of probate not to be in his county, 13 to give bond to return inventory, &c., 61 if residuary legatee, may give bond to pay debts and legacies 62 admits assets by giving boni to pay debts and legacies, and must pay, , 62 when may give bond without sureties, 63 neglecting or refusing to accept trust, or to give bond, administration may be granted as of intestate estate, 64 may be removed for not giving new bond when required, 97, 281 may be removed for insanity, 97 for evident unsuitability, 97 for maladministration, 98 lawful acts of, remain valid, though removed, ' 99 may resign by leave of court, 100 marriage of executrix extinguishes authority, 100 to return inventory, unless he gives bond to pay debts 101 336 INDEX. EXECUTOES, {continued.) Page may sell personal estate, Ill may adjust claims by arbitration or compromise, by leave of court,. . . 113 to give notice of appointment within three months, 115 to make affidavit that such oaotice was given, 115 affidavit made evidence of fact of notice, 116 proceedings when notice was not given, 116 actions against, limited to two years, ' 116 except when he receives new assets, 116 or action fails from formal defect, 116 not liable to actions within one year, except, 119 liable to actions for two years, though estate has been distrib- uted, 122, note when to pay legacies, 119 interest on legacies, 119 when may take bond from legatee as security, 120 may sell lands of testator, under license of court. (See Sale of Lands.) to render accounts, 163 with what chargeable in his account, 166 what allowed to him, 172 compensation of, 176 bond of, may be put in suit, 231 may appeal from decree of probate court, 239 {insolvent estates,] when to represent estate insolvent, 121 failing to represent insolvency of estate, may be liable personally, 123 how may pay preferred debts without liability, 123 having given bond to pay debts and legacies, cannot represent the estate insolvent, 124 to oppose allowance of unjust claims presented to commission- ers, 128 may appeal from decisions of commissioners, 130 when appeal may be waived and claim submitted to arbitra- tion, '. 132 failing to settle his accounts in six months after return of com- missioners, how liable 133 how to make distribution, .' 134 how may perpetuate evidence of distribution, 135 EXPERTS, evidence of, on questions of sanity, 28 P. FATHER, when entitled to administration as next of kin, 68-70 guardian by nature, of minor child, 81 INDEX. 337 PATKEE, (continued.) Page when entitled to custody of child, though other person is guardian, . . 82 may appoint guardians for his children by will, 83 may not appoint guardians for other children, though he gives them his property, 83 estate of child leaving no issue descends to, 187, 193 rights of, how aiFected by adoption of children, 245 FOEEIGN EXECUTORS AND ADMESISTKATORS, may be licensed to sell land of deceased in this State to pay debts, &c., 154 first to file copy of appointment in probate court of any county where land lies, 154 if not sufficiently bound in place of appointment, to give bond, • 155 to give further bond, if licensed to sell more than enough to pay, &c., 155 proceedings of, under license, 155 all proceedings in court to be in county where appointment is first filed,..'. 160 FOREIGN GUARDIANS, may be licensed to sell land of ward in this State, 158 first to file copy of appointment in court of any county where land lies, 159 if not sufficiently bound in place of appointment, to give bond, 159 to give further bond, if licensed to sell more than enough to pay, &c., 159 to give additional bond, if licensed to sell for maintenance of ward, or investment, 159 proceedings of, under license, 158 all proceedings in court to be in county where copy of appointment is first filed, igO FOREIGN WILLS, may be proved in this State, if provable where made, 50 proceedings in such cases, 51 proved in any other State, may be allowed and recorded here, when,. . . .•; 52 proceedings in such cases, 53 effect of such allowance, 53 FRAUD, will obtained by, void, 35 FRAUDULENT CONCEALMENT, of estate of deceased persons and wards, proceedings for discovery, . . 104 "FULL AGE,", when attained, 16^ not* 29 338 INDEX. G. GEANDCHILDEEN, Page when entitled to administer as next of kin, 68-69 when inherit, 187-193 GRANDPARENTS, when entitled to administer as next of kin, 68-70 when inherit, 187-193 GUARDIANS, t^n^ j^ r^-u^ / -It*,^,^;^ «4 /^-«4-.- «*» iii^ i'-^U', may be appointed by probate court, f. .."...'. .....' 6 first appointed to have whole charge of ward's estate, 6 register of probate not to be in his county, 18 to give bond approved by court, 88, 89 when exempted from giving bond for proceeds of sale of real es- tate, 88 may sell, transfer, &c., stocks of ward, by leave of court, and invest proceeds, 112 may sell lands of ward. (See Sale of Lands.) removal of, 97 resignation of, 100 marriage of female guardian extinguishes her authority, 100 to return inventory, 101 proceedings when effects of ward are concealed, embezzled, &c., 105 may be cited, if suspected of concealing, &c., ward's estate, 105 compensation of, 182 of married man to join with wife in release of dower and homestead, when authorized by court, 248 to render accounts (see Accounts), 163 accounts of joint, allowed on oath of one, .• 184 may sell personal estate, Ill, note may adjust demands by compromise or arbitration, under authority of court, 113 may petition for partition of ward's real estate, 20B may assign dower in ward's estate, 214, note of minors, may be nominated by ward over age of fourteen, 81 may be nominated in court, or before justice of the peace, 84 person nominated must be suitable, 81 continues in office till minor arrives at full age 82 who are suitable to be, 82 to have care of ward's estate, 82 when to have custody of ward's person, 82 may be appointed by will of father, 83 petition for appointment of, 88 citation to issue, unless assent, &c., 84 of insane persons, who to apply for appointment of, 84 INDEX. 339 GUARDIANS, {continued.) Page fourteen days' notice of petition to be given to supposed insane person, 85 supposed insane person to be heard, and allowed expense of defending himself against complaint, 86 who are suitable to be, 85 how discharged, 100 of spendthrifts, who may complain, 85 fourteen days' notice of complaint to be given to alleged spend- thrift, 85 copy of complaint filed in registry of deeds, effect of, 85, note alleged spendthrift to be heard, and allowed expense of defend- ing himself against complaint, 86 who are suitable to be, 85 how discharged, 100 of married women, when may be appointed by probate court, 87 notice to husband before appointment, 87 general powers and duties of, 87 may be authorized to release dower and homestead right of in- sane ward, 248 of persons out of the State, may be appointed by the probate court for the county in which there is any estate of the foreign minor; insane person, or spendtlu:ift, 86 ad litem, may be appointed to examine guardia.n's accounts, 182 in proceedings for partition of land, 207, 208 in proceedings for adoption of children, 244 H. HANDWRITING, of attesting witness, when may be proved, 47 HEIRS, who to be, of intestate property, 186-193 HOMESTEAD, estate of, may be assigned to widow or minor children, in same man- ner as dower, 226 of insane married woman may be released by her guardian, by leave of court, 248 husband to petition in such case, 248 notice and hearing on petition, 248 guardian, when authorized, to join husband or trustee in conveyance, 248 wlien proceeds of sale to amount of $800 may be ordered to be held by guardian for wife's benefit, 249 proceedings to be in county where husband resides, 250 HUSBAND, to administer wife's estate, unless, 73, 74 340 INDEX. HUSBAND, (continued.) Page to inherit wife's real estate, if she leaves no kindred, 188 entitled to personal estate of deceased wife, ■■ 1 93 right of, as tenant, by the curtesy, not affected by statute of de^ scents, 189. note of insane wife, may petition for release of her dower and homestead right in his real estate, 248 proceedings on such petition, 248 I. ILLEGITIMATE CHILDEEN, heirs of mother and maternal ancestor, 189 estate of, descends to mother, 189 whose parents have intermarried, considered legitimate, 189 omitted in parent's wUl, not to share in his estate, 192 INFANTS, cannot dispose of property by will, 15 when attain full age, 15, note cannot administer, 60, 72 INHERITANCE, by " right of representation," how construed, 189 INSANE PERSON, guardian may be appointed for, 84 who may apply for appointment of guardian of, 84 to have fourteen days' notice of the application, 85 allowance for expense of defending himself against complaint, 86 bow discharged from guardianship, 100 if married woman, guardian may be appointed for, 87 right of dower and homestead in husband's real estate, how re- leased, 248 provision may be made for, from proceeds of sale of husband's real estate, '. 249 INSANITY, evidence on the question of, 27 hereditary, 30 attesting witnesses may give opinion of testator's capacity, 28 testimony of experts, as to, 28 suicide, as evidence of, 29 contents of will, &c., admissible, 29 fact of guardianship as evidence of, 29 eccentricity distinguished from, 31 life, opinions, and habits of testator may be reviewed, to test alle- gation of, 31 induced by what diseases, 32 intemperance, 32 INDEX. 341 INSANITY, {continued.) Page lucid intervals, 33 partial, — monomania, 84 INSOLVENT ESTATES, how to be applied 121 to be represented insolvent by executor, &o., 121 when representation to be made, 123 executor, &c., neglecting to make representation, may be personally liable, 123 representation need not be made, if estate is only sufiScient to pay preferred debts, 123 commissioners to be appointed 124 warrant to may be revoked, 8 person employed in probate office not to be, unless, 10 vacancy in office, how filled, 126 to be sworn, , . 125 to appoint times and places of meetings to receive claims, 126 may examine claimant on oath, 126 may administer oaths to claimant and witnesses, 126 to liquidate and balance all mutual demands, 126 not to return balances found against estate, 126 to return separate lists of partnership and individual claims, . . . 129 six months allowed for proof of claims, 125 when time may be extended, 125 claims payable absolutely may be proved before maturity, 127 copartnership debts may be proved, 127 debts secured, not to be proved unless security is surrendered, 127 security may be estimated and balance of claim proved, 127 all claims, except executors, &c.. to be presented to commission- ers, 126, 128 not presented, barred unless further assets come to executor's hands, 136 executor's claim to be presented to the court, 128 contingent debts, how proved, 129 what are 130 interest, allowance and rebate of, 127 appeals from commissioners may be taken by executor or creditor,. . 130 to what court, 130 notice to be given, 131 when to be entered, 131 proceedings in, „ 131 costs in, 131 not seasonably taken, may be allowed by supreme judicial court, 131 may be waived, and claim submitted to arbitrators, 132 arbitrators, how appointed, 132 proceedings of, 133 29* 342 INDEX. INSOLVENT ESTATE, {continued.) Page distribution, to be in thirty days after commissioners return, 133 distribution, &o., in case of appeal, 133 further, to be made, if whole assets are not distributed by first decree 133 partnership and separate estate to be distributed separately, 134 unclaimed dividends may be deposited, 135 eyidence of distribution, how perpetuated, 135 unclaimed dividends, how distributed, 135 creditors, when required to refund money paid by executor, 122, note preferred, 121 allowed six months to prove claims, 125 further time by leave of court, 126 of deceased copartner may prove claim, 127 whose claim is not matured may prove it, 127 if secured, must waive security, or prove only balance of claim, 127 provisions as to contingent claims, 129 may appeal from decision of commissioners, 130 proceedings on appeal, 130 remedy of, when appeal is not seasonably taken, 131 not to bring actions after representation of insolvency, except,.. 135 disposition of actions brought before representation, 136 claims of, not presented to commissioners, barred, except, 136 may cause commission to be opened, when new assets come to executor, 1 36 claim of, not barred by lapse of time, when there are new assets, : 137 may sue after eighteen months, if question of insolvency is not then determined, 137 must sue within two years, 138 if assets are sufficient, to be paid in full, 137 insufficient, to be paid ratably, 137 preferred, paid in full, 134 of foreigners, 138 assets not to be sent to foreign executor, till residents have re- ceived just share, 139 citizens of this State first to receive just proportion, 139 residue, how disposed of, 139 INTEREST, how computed on legacies, 120 on claims against insolvent estates, 127 when executors and administrators chargeable with 169 when with compound, 170 guardians and trustees chargeable with, 179 when with compound, 180 INDEX. 343 INTEREST, {continued.) Page on money advanced, when allowed to executors, &c., 176, 182 on claim of executor, &c., against estate of deceased, 178 INTOXICATION, will made by person in state of, 82 INVENTOKY, to be returned by executors and administrators, in three months after appointment, 101 by guardians and trustees, when ordered by court, 101 not required of executors who have given bond to pay debts and legacies 101 of trustees, when court deems it unnecessary, 101 objects of, 101 what to be included in, 102 appraisers, may be appointed by court, 108 by justice of the peace, when estate is in his county, 103 appointment may be revoked, 8 person employed in probate office, not to be, unless, 108 must first be sworn, 103 to deliver inventory to executor, &c., 104 to be sworn to, by executor, 104 of partnership and separate estate, to be returned on difierent sched- ules, 103 of wards having same guardian, when to be separate schedules, 103 INVESTMENT, of personal estate, in hands of guardians and trustees, by order of court,.' 112 proceedings in such cases, 112 J. JOmTtTRE, to bar dower, to consist of freehold estate for wife's life, at least, 220 and to take effect immediately on husband's death, 220 wife's assant to, how to be expressed, 220 when may be waived and dower claimed, 221 widow evicted from land held as, may be endowed, as if jointure had not been made, 225 JUDGES OF THE PROBATE COURT, to take oaths prescribed by the constitution, 10 additional oaths, 10 may interchange services, or perform each others duties, 10 when interested, absent, or the office is vacant, register to procure attendance of some other judge, 10 record how made, and business how done in such case, 11 when disqualified by reason of interest, 11, note 344 INDEX. JUDGES OF THE PEOBATE COURT, (conlinued.) Page not to be counsel or attorney in certain cases, 12 to make rules of practice, 7 may frame and issue necessary warrants, 7 decrees of, to be in writing, and recorded, 7 may do certain official acts in vacation, 6 may appoint assistant registers in certain counties, 13 may appoint a tempdrary register, 14 JURISDICTION. (See Probate Courts.) JUSTICE OF THE PEACE, may administer oatbs required In probate proceedings, except to ac- counts, 9 and to accounts, when authorized by court, 9 may summon witnesses, 47 may appoint appraisers/ when estate to be appraised is in his county, 103 K. KINDRED, degrees of, computed according to rules of civil law, 69 lineal, 69 collateral, 69 what, to inherit estates, 190 of half blood, to inherit with those of whole blood, 191 {See Next of Kin.) L. LEGACIES, when payable, 120 interest allowed on, after one year, 120 tax on, 317 LEGATEE, when entitled to interest on legacy, 120 receiving whole or part of legacy before two years, may be required to give bond to indemnify executor, 120 may complain of person, embezzling estate of deceased, 104 may apply for leave to bring action on bond of executor, &c., 282 LIMITATION OF ACTIONS, against executors and administrators, having given notice of appoint- ment, to two years from giving bond, 116 except when new assets are received by executor, &c., after the two years, or action fails from formal defect, &c., , 116 when new assets are received, or action is abated, &c., action may be brought within one year after creditor has notice • . of new assetSj or after abatement, &c., of action, 116 INDEX. 345 LIMITATION OF ACTIONS, (continued.) Page against public administrators under general bond, two years from date of letters of administration, 117 against new administrator, two years after giving bond, unless, &c.,. 117 creditor, whose right of action accrues after the two years, to bring action in one year afSer claim becomes payable, 118 against sureties in guardian's bond to four years from guardian's dis- charge, except, &c., 236 LICENSE TO SELL EEAL ESTATE. (See Sale of Lands.) LOST WILLS, presumed to hare been revoked, 51 may be admitted to probate, if iact of loss and contents are proved, 52 LUCID INTERVAL, wills made in, valid, 33 evidence of, 33, 34 LUNATIC. (See Insane Person. — Insanity.) M. MARK, will sufficiently signed by, 17 how identified, 17, 48 MARINERS AT SEA, may make nuncupative will 54 who are, within the statute, 56 nuncupative will of, how made, 55 how proved, 56 MARRIAGE, does not alone work revocation of will, 42 and birth of child revokes will, 43 of parents of illegitimate children, effect of, 189 of absent heir, not presumed, 197 MARRIED WOMAN, having property, guardian may be appointed for, 87 general powers and duties of such guardian 87 being insane, may have guardian, 87 dower, or homestead right of, in husband's lands, how may be released, 248 MARSHALLING OP ASSETS, on executor's, &c., petition for sale of lands, when will of deceased makes provision for payment of debts, cSsc, 144, 147 MEDICAL WITNESSES, when may testify on question of sanity, 28 MINORS, cannot act as executor, 60 as administrator, 72 guardians may be appointed for, by court, 81 346 INDEX. MINORS, {continued.) Page by win of father, 83 over fourteen years of age may nominate guardian, 81, 84 child of deceased person entitled to articles of apparel and ornament, 106 to allowance from estate of deceased father when there is no widow, ^ 106 guardian ad litem, may be appointed for, 182, 207 MONOMANIA, distinguished from eccentricity, 31, 34 MORTGAGE, laud held in, by executor, deemed personal estate, Ill and may be sold before right of redemption is foreclosed, as per- sonal estate, Ill if not sold or redeemed, how distributed, 186, note partition of, among persons interested, : 213 MOTHER, when entitled to administer as next of kin, 68-70 guardian by nature of child, if father not living, 81 when entitled to custody of child, 82 when entitled to estate of deceased child, 187, 193 heir of illegitimate child, 189 N. NAMES. {See Change of Names.) NEWSPAPERS, may be selected by parties for publication of citations on their peti- tions, 9 if paper so selected insufficient to give due publicity, judge may order publication in one other, ,. 9 NEXT OP KIN, determined by rules of civil law, 69 when entitled to administer, and in what order, 64, 68-70 renouncing administration, have no right to nominate administrator, 70 if renounce administration, other kindred have no right to admin- ister, 71 no right to claim other than original, 74 to inherit estates, 190 NON COMPOS. {See Insane Person. — Insanity.) NOTICE, of their appointment to be given by executors and administrators, within three months, 115 unless given, statute of limitations does not apply, 115 evidence that notice was given, how perpetuated, 115 of time and place of sale of lands under license, 149 affidavit that such notice was given to be filed and recorded, 150 INDEX. 347 NOTICE, {continued.) Page effect of such affidavit, 150 NUNCUPATIVE WILL, what is, 64 may be made by soldiers in actual service and mariners at sea, 55 how made, 55 who are soldiers in actual service, 56 mariners at sea, 56 how proved, 56 no particular number of witnesses necessary to establish, 56 0. OATH, to accounts, to be administered by judge, 9 if accountant unable to attend court, by judge out of court, or by jus- tice authorized by judge, 9 in all other proceedings, by judge or register, in or out of court, or justice of the peace, or town clerk where there is no justice, 9 of claimants and witnesses before commissioners of insolvent estates, by the commissioners, 126 OLD AGE, as affecting testamentary capacity, 27 OVEESEERS OF THE POOR, written approval of to be had before license granted to guardian of insane persons or spendthrifts to sell land, 158 P. PARENTS, when entitled to administer as next of kin 68-70 natural guardians of minor child, 81 when to.have custody of minor child, under guardianship of another person, ; 82 when to inherit estate, 187, 193 deprived of all legal rights as respects adopted child, 245 PARTITION, court may make among heirs and devisees, and persons holding under them, 204 cannot be made when shares of parties are in dispute, uncertain, &c., 204 may be made notwithstanding existence of lease, 205 proceedings for, commence by petition, • 205 who may petition for, 205 notice of petition to be given, 206 who entitled to notice of petition, 206 minors and insane persons having no guardians, to have guardians for the suit appointed, 207 348 IKDEX. PARTITION-, (continued.) Page persons not in being, how to be protected, 207 three or five commissioners to be appointed by com't, 207 person employed in probate office not to act as commissioner, unless,. 207 if estate lies in different counties separate warrants may be issued to different commissioners in each county, 207 warrant may be revoked, 208 absent heirs and devisees to have agents appointed for them, 208 commissioners to be sworn, 208 to give notice to persons interested of time and place of making partition, 208 all to meet for performance of duties, but act of majority valid, . 208 to be of all estate of deceased, which any party interested requires to have included, 209 each party's share to be set off, unless two or more consent to hold in common, 209 when any part of estate cannot be divided without injury, &c., it may be assigned to one, he paying difference to others 209 males to be preferred to females, and elder sons to younger, 209 whole or any part may be set off to one or more, they paying to others sums awarded by commissioners, 209 advancements to be considered, 209 return of commissioners, what to contain, 209 not confirmed unless parties interested assent, or have notice, . . . 210 not confirmed until sums awarded by commissioner are paid or secured, 211 may be committed anew to same or other commissioners, 210 where to be recorded, 211 expenses of, how ascertained and paid, 211 execution for, may issue against party, 211 upon whom binding, 212 of lands owned in common by deceased with others, , 212 description of such land to be annexed to petition, 206 notice to be given to co-tenant, , 212 proceedings dismissed or stayed, if party interested, other than heir or devisee, is out of the State, 212 of lauds lield by executor, &c., in mortgage or on execution, how made, 213 PERPETUATION OF EVIDENCE, by executors and administrators, that notice of their appointment was given, 115 by executors, &c., selling land under license, that notice of time and place of sale was given, 150 by executors &c. of payments made under decree of court, 202 PERSONAL ESTATE, sale of may be ordered by court, Ill INDEX. 349 PERSONAL ESTATE, (continued.) Page may te sold by executors, &c., without order, Ill how to be accounted for, Ill, 166 mortgages of land, and land taken on execution, in hands of executor, &c., deemed, Ill in hands of guardian or trustee, may be sold by order of court and invested, 112 debts, &c., held by executor, &c., may be sold by order of court,. . . . 112 proceedings in such cases, 112 allowance to widows and minor children to be from, except, 108 Tested, contingent, or possible interest in may be sold by executors, &c., under license, 112 distribution of, among heirs, '. 193 POSTHUMOUS CHILDREN, guardian of, may be appointed by father in his wUl, 83 considered as living at death of parent, 191 omitted in father's will, to talce share as of intestate estate, 193 " PRESENCE OF TESTATOR." what amounts to, 19 PRESUMPTIONS, of regularity of certain proceedings of probate courts after twenty years, 8 of testator's knowledge of contents of his will, 19 sanity, 27 as to attestation of witnesses, 21 of testator's intention to revoke will, 88, 40 of death of absent person, 77, 196 as to marriage and issue of absent heir, 197 as to survivorship, when several persons perish by same calamity, . . . 197 PROBATE COURTS, under the colony charter, 1 province charter, 2 State constitution, 3 general jurisdiction of, 4 decrees of, upon subjects within their jurisdiction, not to be questioned ■ on collateral proceedings, 5 when a case is within the jurisdiction of, in two or more counties, the court first taking cognizance thereof to retain the same, 6 jurisdiction of, depending on the residence of a person, not to be con- tested except on appeal, or when want of jurisdiction appears on same record, 6 decrees of, to be in writing and recorded, 7 when presumed to be regular after twenty years, 8 may award costs in contested cases, and issue execution, 8 have jurisdiction of the probate of wills, and granting administration, 6 30 350 INDEX. PROBATE COURTS, (continued.) Page of the appointment of guardians of minors and others, 6 of all matters relating to the settlement of estates of deceased per- sons and wards, 6 of petitions for adoption of children, and change of names, 6 of certain matters, relating to funds for charitahle and religious pur- poses, 91 of the appointment of trustees in certain cases, 90, 91 in equity, concurrently with supreme judicial court, of matters re- lating to trusts created by will, 96 may order release of dower and homestead rights of insane married women, 248 times and places of holding 311 PROBATE OP WILL. . conclusively establishes its due execution, 15 necessary to give it effect, 16 facts necessary to be proved, 15 not barred by partial revocation,. 45 petition for, to be filed with will, 45 citation on petition for, 46 how served, 46 when may be dispensed with, 46 of wills made out of the State, 50 of wills accidentally, &c., lost or destroyed, 51 of nuncupative wills, 54 PUBLIC ADMINISTRATORS, one or more to be appointed in each county, 74 'when entitled to administer, 74 not to administer when husband, widow, or heir claims administra- tion, or requests appointment of some suitable person, 74 authority of over the estate ceases, if husband, widow, &c., takes ad- ministration, 74 may give a separate bond for each estate, or general bond,. . .• 79 letters to revoked, if will of deceased is afterwards proved, 100 to return inventory, 101 may sell personal estate, Ill may adjust claims by compromise or arbitration, when authorized by court, 113 to give notice of appointment within three mouths, 115 to make affidavit that notice of appointment was given, 115 proceedings when notice was not given, 116 limitation of actions against, 117 not liable to actions within a year, except, 119 may represent estate insolvent. (See Insolvent Estates.) may be licensed to sell lands for the payment of debts, 160 INDEX. 351 PUBLIC ADMINISTRATORS, {continued.) Page proceedings in such case, 160 after three years may be licensed to seE lands, though not necessary to pay debts, when, &c., 160 proceedings in such case, 160 to render accounts annually, in all cases (see Accounts), 163 to deposit balances with State treasurer, 203 to be notified of application of heir, &c., to take administration of such balance, and appear for the Commonwealth, 203 R REAL ESTATE, held by executors, &c., in mortgage and execution deemed personal,. Ill specific performance of agreement for sale of, 160 vested, contingent, or possible interests in, may be sold by executors, &c., 161 income of, to be accounted for by guardians and trustees, 179 when to be accounted for by executors, and administrators, 170, 194, note descent of. (See Descent.) surplus of proceeds of land sold by executors, &c., deemed and dis- posed of, as, 193, note partition of. (See Partition.) REGISTERS OF PROBATE, election of, 3, note to take oaths prescribed by constitution, 12 additional oath, 12 to give bond to treasurer of Commonwealth, 12 not to be of counsel in any matter pending in his court, 13 not to hold certain trusts, nor be interested in the fees thereof, 13 to have custody of records and papers filed in probate ofliee, 13 to receive and keep wills deposited in probate office, and give certifi- cate thereof, 58 to perform duties required by law or prescribed by judge, 13 to be appointed by governor, in case of vacancy, 14 may issue orders of notice and citations at any time, 8 to make one copy of certain papers without charge, 9 fees for additional copies, 9 may authorize suits on bonds in which judge is principal or surety, 236 assistant, to be appointed in certain counties, 18 to take oaths prescribed by constitution, 13 to give bond, 13 to perform duties, under direction of register, 13 in case of absence, neglect, &c., of register, may complete records and act as register, 13 352 INDEX. REGISTERS OP PROBATE, {cmtimted.) Page temporary, when may be appointed, 14 • to be sworn, 14 REMAINDERS, belonging to estate of deceased person, may be sold for payment of debts, 141 to be inherited,. X 186, note REMOVAL OF EXECUTORS, ADMINISTRATORS, GUARDIANS, AND TRUSTEES for neglect, to give new bond when required, 97 insanity, 97 evident unsuitabihty , 97 neglect to render account, 98 unfaithful administration,..' 98 of trustee, when removal is essential to interests of parties con- cerned, 99 proceedings for, 99 petition for, may be by any person interested, 99 lawful acts of executors and administrators remain valid, although removed, 99 of trustee holding funds bequeathed to a city or town for charitable, &c., purposes, 99 for neglect to make annual exhibit, 99 to be on petition of five persons, 99 RENTS OF REAL ESTATE, belong to heirs or devisees,. 170, 194, note 'm™. '^^sn to be accounted for by executors and administrators, 170 V__ to be accounted for by guardians and trustees, 179 /^SIGNATION, OF EXECUTORS, ADMINISTRATORS, GUARDIANS, AND TRUSTEES may be by leave of court, 100 accounts first to be settled, 100 REVERSIONS, belonging to estate of deceased person, may be sold for payment of debts, 141, 147, note to be inherited, 186, note REVOCATION OF WILL, manner of, 37 express, by burning, tearing, &c., 38 to depend on testator's intention, 38 presumptions as to intention, 38-40 declared intention, without act, not sufficient, , 39 declarations, to explain intention, 39 by codicil, 41 later inconsistent will, 41 INDEX. 353 REVOCATION OP WILL, (cmtinued.) Page revocatory writing, • 42 implied, from marriage and birth of children, 43 except when will makes provision, 43 not rebuttefl by parol evidence, 43 &om alteration of estate, 43 not from partition by tenants in common, 44 not firom insanity of testator, 44 not from increase in value of the estate, 44 partial, , , 43 will not prevent probate of will, 45 effect of, on codicil, 40 EEVOCATOBT WRITING, how to be executed, 42 " RIGHT OF REPRESENTATION," inheritance by, how construed, 189 s. SALE or LAND, by executors and administrators, to pay debts and legacies, 140 what lands liable to be sold, 141 land demised for term of one hundred years, or more, so long as fifty years remain unexpired, regarded as estate in fee- simple as to sale, &c., 142 undevised lands first liable, 144 license for, may be granted by probate court, 140 not required by executor who gives bond to pay debts and legacies, 140, note by executors, authorized by the will, 140, note granted only, when personal estate is insufficient to pay, &c., 141, 145 petition for, what to contain, 143 notice of, 144 when may be dispensed with, 145 creditor, competent witness in support of, 145 to concur with petition 147 not usually granted after two years, 147 does not continue in force more than one year, 149 may be of whole or specific part, when sale of part only would injure residue, 147 not to be granted, if persons interested give bond to pay or fur- nish money, 146 when provision is made in will for payment of debts, assets to be marshalled accordingly, 144 30* 354 INDEX. SALE OF LAiTD, {cmtinued.) Page not to be. made till executor, &o., gives bond to account for sur- plus of proceeds, 148 oath to be taken by executor, &c., before fixing on time and place of, .* 149 notice of, how to be given, 149 affidavit of, filed and recorded to be evidence thereof, 150 to be by auction, 151 may be adjourned, 160 notice of adjournment of, how given, 151 to the executor, &c., may be avoided by heirs, 151 requisites of, as against heirs, 162 as against persons claiming adversely to heirs, 162 executor, &c., may be examined on oath as to, 158 liable on his bond, for neglect, 168 limitation of actions for recovery of lands sold by executor, &c., 163, note surplus of proceeds of, after settlement of accounts, considered real estate, 193, note executor's deed, contents of, 153 by public administrators, license for, to pay debts, as in case of other administrators, 160 may be made after three years, when for the interest of all con- cerned, 160 proceedings in such case, 160 by foreign executor and administrator, may be made in this State, by filing copy of appointment, &c., . . 164 such executor, if not bound in place of his appointment, to give bond, &c., 165 when further to give bond, 165 aU proceedings by, to be had in county where copy of appoint- ment is first filed, 160 to take oath, give notice, &o., as prescribed for an executor, ap- pointed here, 155 by guardians, for payment of debts, when ward's personal estate is insuffi- cient, 165 license for, how granted, 166 may be whole, or specific part, when partial sale would in- jure residue, 156 bond to be given, as in case of executors, &c., 166 for maintenance and investment, when income of ward's estate is insufficient to maintain him and his family, 166 or, when it is for the benefit of ward, to invest proceeds, 156 petition for, notice on, 168 INDEX. 355 SALE Ot LAND, {continued.) Page license not granted, except when ward is a minor, unleBS OTer- seers of the poor approve, 158 to specify purpose of sale, 157 not to be made until guardian gives bond to sell, and account, &e., for proceeds according to law, 157 oath, notice, &c., to be as in case of executors licensed to sell,.. . 158 proceeds of, may be invested by order of court, 112 on petition of friend of a minor, proceedings in such petition, 157 proceeds of, in such case, how disposed of, 158 by foreign guardian, vaa,y be made, on filing copy of appointment, 158 such guardian, if not bound in place of appointment, to give bond to acGoimt for proceeds, 159 to give further bond to account for surplus, if licensed to sell more than enough to pay debts, 159 to give additional bond, if sale is made for maintenance or in- vestment, 159 all proceedings to be had in court in which the copy of appoint- ment is first filed, 160 SIGNATTIRE OE TESTATOR, what is sufficient, 16 SISTERS, when entitled to administer as next of kin, 68-70 when to inherit, 187-193 SOLDIER, in actual military service may make nuncupative will, 54 when in actual miUtary service, 56 wills of, how made and proved, 55-57 ' SOUND MIND," 25 SPECIAL ADMINISTRATOR, when to be appointed, 66 bond of, 78 to act, though appointment appealed from, 80 not liable to actions by creditors of deceased, 117 when to render account, 163 SPECIFIC PEREORMANCE, of written agreement for conveyance of lands, when party dies, or is put under guardianship, 160 conveyance, how ordered, 161 effect of, 161 SPENDTHRIFT, guardian may be appointed for, 84 who may complain against, 85 356 INDEX. SPENDTHRIFT, (continued.) Vsg* complaint against, effect cff, when filed in re^'stry of deeds, 85, note to have fourteen days' notice of complaint, 85 if guardian appointed, allowed expenses of defending himself against complaint, ^ > 86 how discharged from guardianship, 100 STAMP DUTIES, on probate of will, ......< 815 on letters of administration, 315 on bonds of executors, &c.,. 315 on inventory, < 316 on certificates, 316 SUICIDE, as evidence of insanity <..-..... 29 , SUPREME COURT OF PROBATE, supreme judicial court constituted, 5 may reexamine on appeal, and affirm or reverse decrees of probate court 6 may make rules regulating proceedings, in probate courts, 7 appeal to, from probate court, by whom may be taken, 238 ' when to be claimed and entered, 240 proceedings on, 242 SURETIES, in bonds given to probate court, to be inhabitants of this State, 229 and such as the judge approves, 229 may be discharged, when court deems it reasonable and proper, 231 Uable, when principal gives bond with new sureties, for all breaches committed before approval of new bond, 231 SURVIVORSHIP, not presuined, when both perish in same calamity, 197 T. TAX, under laws of United States, on legacies and distributive shares, rates of, 318 to be paid to collector, or deputy collector, by executor, &c., 319 amount of, allowed to executor, &e., in his accounts, 320 TEMPORARY REGISTER OF PROBATE, when may be appointed, 14 to be sworn, and certificate thereof recorded, 14 TRUSTEES, under mils, may be appointed by probate court, if testator omits, &c., 90 or to fill a vacancy, 90 proceedings for appointment of, " 91 to give bond approved by probate court, 92 INDEX. 357 TBUSTEES, {coniinued.) Pago neglecting to give bond considered as declining trust, 93 when exempted from giving bond, 93 bond of, may be put in suit, 286 may be removed for failure to give a new bond, when re- . quired, 97 or for insanity, 97 or evident unsuitability, 97 or on application of parties interested, &c., 99 to return inventory,. 101 render accounts (see Accounts), 163 . may be required to sell trust property and make investments, on petition of any person interested, 94 new, to give bond, 93 inventory by, may be dispensed with, 98 court may order conveyances to, by former trustee, 90 may adjust claims by compromise or arbitration under author- ity of court 113 compensation of, 182 under deeds, how appointed in case of vacancy, 90 any person interested may petition for appointment of, 92 when to give bond, 93 to receive and hold highway damages, may be appointed by probate court, 91 to give bond, 94 of funds given to towns for charitable, Sfc, purposes, may be removed by probate court, 99 may be appointed to fill vacancy, 91 to hold funds for the benefit of widows, in certain cases, may be appointed by probate court, 91 TETJSTS, personal property held in, may be sold and invested by order of pro- bate court, 94 proceedings in such cases, 94 court may give further directions for managing, &c., trust fund, 94 held for the benefit of creditors, how may be terminated in certain cases, 95 under wills, equitjy urisdiction of probate court concerning, 96 u. UNDUE INFLUENCE, will obtained by, void, , 35 degree of, to invalidate will, 38 evidence of, 36, 37 358 INDEX. V. VESTED RIGHTS, Page in real or personal estate, may be released by order of probate court, 161 w. WEARING APPAREL, of widow and minor children of deceased parent belongs to them,. . . lOB WIDOW, when entitled to administer husband's estate, 68-71 if renounces administration, has no right to name administrator, 70 no right to claim other than original administration, 74 holds her articles of apparel and ornament, 106 entitled to aUowanee for necessaries from husband's estate, 106 use of husband's house, furniture and provisions forty days, 106 to inherit husband's lands, if he leaves no kindred, 188 when entitled to one third of husband's personal estate, 194 share of, when husband dies without issue, 194 when she waives provisions made in husband's will, 194, note advancements to heirs not considered in computing 200 when entitled to dower in husband's lands (see Dower), 214 may waive provision made for her by husband's will and take dower, 219 how may make such waiver, 220 if evicted, &c., may be endowed anew, 225 wlien entitled to half of husband's lands for life, 228 entitled to any part of husband's lands for life or widowhood, may have the same assigned by probate court, 228 WILL, not effectual to pass estate until proved, 15 execution of, established by probate, 15 to be in writing, and signed by testator, 16 what is sufficient signing of, by testator, 16 formal publication of, not necessary, 18 form of, not material, 50 to be attested by tliree or more competent witnesses in testator's presence, 10 testator's "presence," what is, 19 presumptions as to attestation of witnesses, ^, 21 testator must be of sound mind, 25 not disqualified by physical debility, 27 by old age, , 27 obtained by fraud, void, 35 by undue influence, void, 35 written by person benefited by its provisions, 36 may be revoked, expressly, 88 INDEX. 359 WILL, (coniimied.) Page or by implication, ,-.»-, 42 proceedings in probate of, • 45 may be proved, though attesting witnesses testify against it, 49 made out of the State, how proved, 50 accidentally or fraudulently destroyed, how proved, 51 proved out of the State, may be allowed and recorded here, 52 effect of such allowance, 53 nuncupative, by whom may be made, 54 how proved, 56 may be deposited by testator, in probate office, 58 how to be indorsed when deposited, 58 to be delivered only to testator, or his order during his life, 58 to whom, after his death, 58 person having custody of, when to deliver it in to probate court, 58 to be imprisoned for neglect to deliver it, 59 person concealing, may be cited to appear, 59 how cited, 59 may be examined on oath, 59 refusing to appear, or to answer, may be committed, 59 not required to criminate himself, 59 WITNESS, how may be summoned, 47 creditor may be, in support of petition of executor, &c., to sell land to pay debts, 145 (See Attesting Witnesses.) WRITTEN AGEEEMENT, to seE land when party dies, or is put under guardianship, how en- forced, 160 INDEX TO FORMS. A. ACCOUNT, Page petition that administrator may be cit^d to settle, 294 ADMINISTRATION, petition for by widow, A 260 by next of kin, .^-t^. 261 by person requested by parties to administer, 262 by creditor, .' 262 by hu^and, .^. . J 263 whewintestate was inhabitant of another State, 263 by jmblic administratorj . . ?w 264 with mifl annexed, petitionvibr, 265 de bonis non, petition for,. ; 265 de binis non with will an?iared,^tition for, 266 sp^icU, .'.".";. 267 ADMINISTRATOR, petitions for appointnient of, 260-267 /n, removal •sf, I"^ 273 .'Xdecree thereon, 274 resignation ofj...'; 274 . decree thereon, 275 V ci^atibn of, to render accounts, 294 ALL0WAl^C]5>, to wife of insVne person under guardianship, petition for 27S decree thereon, 279 APPEAL, \ from comnuBsioliers of insolvent estate, notice of by creditor, 287 by exfeijtgj, &c., 288 from probate court, notice of, 302 reasons of, 302 not seasonably claimed, petition for leave to prosecute, 303 waiver of, 304 complaint for non-entry of, 304 INDEX. 361 APPRAISAL, Pag« justice's order for, 276 ARBITRATION, submission to of claim, 288 decree thereon, 289 rule of, 289 award 289 ATTESTING WITNESS, summons for, 281 B. BOND, of heirs, &c., to pay creditor, whose right of action accrues after two years, 284 of legatee, who receives legacy within two years, to indemnify ex- ecutor, &c., 285 of heirs, to pay debts, given to prevent sale of real estate, 290 of distributee, who receives share-^ithin two years, to indemnify ad- 295 ministrator, V 295 petition that executor, &c., may be ra^uired to give new, 298 decree thereon, 7'.' 299 petition of surety in, to be discharged, 299 decree thereon, s-^ 300 petition, for leave to bring acfi^ on, 300 decree thereon, r^-V 301 ee *1 / ''^ / c. CITATION, returii of service of, . . ;■ ;".'r. ,;;j 259 , of aiininistrato:, to settle account, petition for, 294 CLAIM^ / -1 ^ petition of ^Xecufor, &c., for leave to sell outstanding, 279 decree thereon, .' 280 COMPLAINT] against person sus^pcted of concealing will, 258 of embezzleme^ 277 for aflSrmation of decree appealed from, 304 DOMPKOMISE OF DEMANDS, petition for leave to mate, 281 decree thereon 282 CONVEYANCE OF LAND, petition for specific performance of agreement for, 292 decree thereon, 293 CREDITOR, petition of, whose right of action accrues after two years, 283 31 362 INDEX. CREDITOR, (continued.) Pago decree thereon, 283 bond given to, by heirs in such case, 284 petition of, for further time to prove claim against insolvent estate, . . 286 decree thereon, 286 notice of appeal of, from commissioners of insolvent estate, 287 D. DEBTS, petition of executor for leave to sell outstanding, 279 decree thereon, 280 DISTRIBUTION, petition of child omitted in parent's will for share in, 294 bond of distributee to indemnify administrator, 295 petition of person entitled td money, dppbsited under decree of, 296 decree thereon, -^^^^ 296 DOWER, claim of, by widow who waives provisions of husband's will, 297 notice to parties by commissioners to Setjoflr, 298 petition of husband for release of rig^t of insane wife, .■ 305 decree thereon, /r?\ 305 /' EMBEZZLEMENT, complaint against person suspected of, 277 warrant Jig commit person (jDnjplained of, 277 EXECUTOR,"-^ -^ refusal of, to accept trust, .\...y 253 petition for removal of, .\.. . ) 278 decree thereon, . .^.^ 274 resignation of, X. 274 decree thereon, \, , 275 citation of, to render account 294 G. GUARDIAN, petitions for appointment of, 268-270 GUARDIANSHIP, petition for, by widow, 268 by person not a relative, the parent assenting, 268 by person not a relative, the next of kin, &o., assenting, 269 by person nominated by minor, 269 of minor, who neglects to nominate, 270 of minor, residing out of State, 270 INDEX. 363 GUARDIANSHIP, (continued.) Page of ward, to be discharged from, 276 decree thereon, 276 H. HOMESTEAD, petition of husband, of insane wife for release of estate of, 305 decree thereon, 305 I. INSOLVENT ESTATES, petition of creditor for further time to prove claim, 286 decree thereon, 286 commissioners' notice of time and place of meeting, 287 notice of appeal from commissioners, by creditor, 287 by executor, &c., , 288 waiver of appeal, and submission of claim to arbitration, 288 order thereon, 289 rule issued to arbitrators, \ 289 award of arbitrators, r.-rrT. 289 INVESTMENT,/ of personal estate, petition for leave to make, 280 decree thereon, 281 '' ■■ ' L. LEGATED, bond of, to indemni^wgcutor, &c., 285 ;' ',. * N. NOTICE, '- ,1, to creditors, by commissioners of insolvent's estates, 287 of appeals from commissioners, 287, 288 of time, fee, of sale of land under license, 291 to heirs, &c., of tiine of making partition, 297 to heirs, &c., of time of 'assigning dower, , 298 of appeal from probate court, 302 P. PARTITION, notice to heirs, Sec., of time of making, 297 PERSONAL ESTATE, petition for leave to sell, and invest proceeds, 280 decree thereon '. 281 PROBATE OF WILL, petition for, by executor, 251 364 INDEX. PROBATE OF WILL, (continued.) Page by other person than executor 252 accidentally destroyed, petition for, 254 decree thereon, 255 nuncupative, petition for, 256 decree thereon, 256 PUBLIC ADMINISTRATOR, petition of, for administration, 264 R. REMOVAL OE EXEpUTOR, &c,, petition for, ..J. , 273 decree therejan, LLi^ ^^^ S. r-J SALE OF LANDS, p^ administrator's notice of time, &c., of sale, 291 bond of heirs, to pay debts given to pr»|[ent, 290 admipistrator's deed., '. 291 SPECIAL ADMINISTRATOR, i'^ petition for appointment of, .■ 267 SPECIFIC PBRFORlI's^NCE, r of agreement to convey lan^'petitioft for, 292 decree therebri, i ; 293 SUBPOENA, X , \ to attesting witneises,\, I..,'.'-?. 254 SURETY, "^ y petition of, to be aischargelL 299 decree thereon, '.. : 300 T. TRUSTEE, petition for appointment of, to fill vacancy, 271 under statute, concerning provision for widows, 271 decree thereon, «... 272 w. WAIVER, of appeal from commissioners and submission to arbitration, 288 by widow of provisions in husband's will, 297 of appeal from probate court, 304 WIDOW'S, . waiver of provisions made for her, in husband's will, 297 INDEX. 365 WILL, Page petitions for probate of, '. 251, 252 accidentally, &c., destroyed, petition for probate of, 254 decree thereon, 255 nuncupative, petition for probate of, 256 decree thereon, 256 petition that pers^ having custody of may be cited, 257 complaint againstfperson 6uspei|t«i of concealing, 258 citation oja such complaintjfrr 258 warrant to oommit person complained of for concealing, 259 « «i^»y^.!<-. ""■ I rr'-v^ - !,•»»>»*'''''?