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NEW YOEK: BANKS, GOULD & CO., 144 NASSAU STREET, ALBANY: GOULD, BANKS & CO., i15 BROADWAY. 1855 TB7^33l Butered, according to the Act of Congress, in the year one thonsand eight hundred and forty-six, by ISAAC DAYTON, in the office of the Clerk of the District Court of the United States for the Southern District of New York. Entered, according to act of Congress, in the year one thousand eight hundred and fifty-five, By ISAAC DAYTON, • in the office of the Clerk of the District Court of the United States for the Southern District of New York. INTRODUCTION. The First Edition of the following work having been for some two or three years out of print, at the solicitation of the publishers, as well as of many members of the profession, the writer has prepared this Second Edition for publication. 'The Book is intended to be a guide to the practice of the Surrogate's Courts of this State, and an assistant to Executors, Administrators and Guardians, in dischargiag the duties of their trusts. It consists, as its title indicates, of a collection of the Statutes, and a summary of the judicial decisions of the State of New York, relating to Surrogates, Executors, Administrators and Guardians. The whole is arranged in tixe form of a treatise, and in this Edition, as in the former, the stand- ^ard elementary authors have been freely quoted, for the purpose of applying, explaining, or elucidating the Statutes or decisions which have been mentioned. The elegant, learned and comprehensive treatise of Sir Edward V. Williams on the law of Executors and Administrators, and the valuable notes to the American Edition of that treatise, have contributed important aid in this particular. As- sistance, also, in the same particular, as well as in forming the general plan, and arranging and discussing the subjects of the work, has been derived from Mr. Kirtland's able and useful treatise on the Practice in Surrogates' Courts. The forms to be found in the Appendix are, for the most part, the same as those which accompanied the First Edition, and such as are in daily use in the Court of the Surrogate of the county of New York. The writer has had reason to believe that the previous Edition of this work has proved of service. He has, in this Edition, endeavored to add tO'the value and usefulness of the publication.. With a grate'^- iv INTROPUCTIOU. M sense of the indtilgence whicli was extended to the Fixst Editioni he again submits the ■work to the profession and the public, with pre- tensions to no other merit than that of faithfully and earnestly attempt- ing to render a usefiil service to the practitioner, in conducting business in the Surrogates' Courts, and to guide and assist executors, adminis- trators and guardians in the proper and safe management of estates committed to their charge. New York, 1st August, 1855. TABLE OF CONTENTS. OHAPTBE I. OF TEE JXTEISDIOTIOM', POWBBS, DUTIES AKD LIABILITIES OF SUBROGATES 1 Ofthe Origin of the Office ........ 1 Of the former General Powers and Jurisdiction of Surrogates ... 4 Of their Incidental and Constructive Authority ..... 4 Surrogates' Courts — Statutory Courts ...... 6 Of Pleadings in Surrogates' Courts ...... 1 Of Attorneys and Counsellors in the Surrogates' Courts .... 8 Of the Existing Organization of Surrogates' Courts ..... 8 Of the Election of County Judges, and separate Of&cers to perform the Duties of the Office of Surrogate ....... .9 Of the Time of Election, and Term of Office of County Judges, and Officers Elected to Perform the Duties of the office of Surrogate . . . . 10 Of Local Officers in certain Counties, to discharge the Duties of County Judge and Surrogate | the Time of their Election, and their Term of Office . . .19 Of the Election of the Surrogate of the County of New York, and his Term of Office Jl Eegulations respecting Vacancies in Office, and for dispensing with Officers author- ized to be elected to discharge the Duties of the Office of Surrogate • . 12 Of the Time for holding Surrogates' Courts, the Titles of the different Officers, and their respective Powers and Jurisdiction ..... 13 Of the Assistants and Clerks to the Surrogates of the Counties of New York and Kings — their Appointment, Powers and Duties ..... 14 Of the compensation of County Judges and other Officers authorized to discharge the duties of the Office of Surrogate, and of the Surrogate of the County of New Tork and his assistants, and the Clerks of the Surrogate of the County of Kings, . . . . . . . . . 15 Of the Security required of Surrogates, and the Prosecution of their official Bonds 18 Of the Locality of the Office of Surrogate, and the Oath of Office ... 19 Of the Specific Powers and Duties of Surrogates . . . . ■ . 19 Ofthe Time when the'Surrogates's Court shall be open ... . . 24 Of the Books and Records to be kept by Surrogates — ^the filing and preserving of Papers, and of Searches and Transcripts ..... 25 Of the Execution of Process issued out of Surrogates' Courts, and of Attachments for Contempts ......... 2T Of the Surrogate's Power to award Costs . . . . , .32 vi TABLE OP CONTENTS. Of the Completion of Businesa pending before a Surrogate, on a Vacancy occurring in his Office ^^ Of the Exclusive Jurisdiction of Surrogates with Reference to Each Other . Of the Fees of Surrogates, and of their Duties in > respect to accounting for the same . . . . . . • ■ ■ Of the Cases in which the Surrogate is disabled from acting, and of the supplying his Place in such Cases . .....••"" Prohibitions to which Surrogates, their Clerks, Law Partners, &c., are subject . 39 33 CHAPTER II. OP PEOVINO ■WILIS. Of the Origin of Wills of Personal Property ..... Of the Nature and Incidents of Wills and Codicils . . • ■ Who is Capable of making a Will ...... Persons Disabled from making a Will for want of Liberty or Free Will Of the Form and Manner of making a Will .... Of the Subscription of the Will by the Testator .... Of the Publication of the Will ...... Of the Attestation by the Witnesses ...... Of the Request to Witnesses to Sign . . . . Of the Execution of Wills by Blind Persons, and by persons Deaf and Dumb The Form and Language of a Will ..... df the Material with which a Will may be written, and of the Person who may be the Writer, and herewith of a Will prepared by a Legatee Of Nuncupative Wills ........ Of the Revocation of Wills ....... Revocation by a subsequent Testamentary Disposition .... By Express Revocation ....... Eevooation by the Republication of a prior Will .... Revocation by Burning, Tearing, Cancelling, Obliterating or Destroying Of Revocation by Marriage or other Change of Circumstances, and therewith of Pre- sumptive or other implied Revocations ..... Of the Republication of Wills ...... Of the Consequences of Republication ...... Of Proving Wills ........ Of the Surrogate's Court having Jurisdiction to take the Proof of the Will Of the Proving of Wills of Inhabitants of the County-^Of the Preliminary Pro- ceedings ......... Of the Petition for the Proof .;.... Of the Issuing and Service of the Citation . . . . • Of Proceedings for the Proof ...... Of taking the Testimony ....... Of the necessary Witnesses ....... Of the Examination of Witnesses residing in the same County, or in another County, disabled from attending ....... Of the Examination of Witnesses residing out of the State Of the Evidence on Proving a Will ...... Of the Entries to be made by the Surrogate in his Minutes . Of the Record and Probate of the Will and the Effect thereof, and of Recording the Proceedings . . . . . _ . Of the Disposal of the Will after Proof ..... Of the Proving of the Wills of Non-inhabitants .... 41 41 42 46 54 68 62 79 91 106 112 lit 118 119 122 124 121 121 121 135 136 138 139 141 143 145 149 161 162 165 168 161 110 111 115 115 TABLE OT CONTENTS. vii Of certain Exemplifications, Copies and Records of Wills . . . 183 Of Proving Nuncupative Wills ....... 184 Of Proceedings where all the Subscribing Witnesses to a Will are Dead, Insane, or Non-residents ......... 185 Of Compelling the Production of a Will before the Surrogate for Proof . 18t CHAPTER ni. OP THE APPOINTMENT OP EXEOUTOBS, THE dEANTINO OP LETTERS TESTAMENTAEY, AND THE AOOEPTANOB OR KBFUSAL OP THE OPPIOE OP EXBOUTOE . . . 187 Who is capable of being an Executor ...... 1S1 Of the Appointment of Executors. — ^By what Words Executors may be Appointed . 188 In what Ways the Appointment of Executor may be Qualified . . 191 Of the Transmission of the Appointment of Executor . .... 192 Of an Executor De iSotj Jbrt ....... 192 Of the Form and Manner of issuing, and the necessity of obtaining Probate or Letters Testamentary ......... 194 Ofthe granting of the Letters Testamentary ..... 195 Of the Surrogate who must issue the Letters Testamentary .... 195 Of the Persons who are not competent by Law to serve as Executors . . 196 Of the Removal of the Disabilities in certain Cases . . . . .198 Ofthe Time when Letters Testamentary may be granted — of Objections to granting the same, and of the Disposition of such Objections .... 198 Of granting Letters Testamentary to Non-residents ..... 200 Ofthe Executor's Oath . . . . . . . . 200 Of the Executor's Eefusal or Acceptance ofthe Office, and of Eenunciation by a Per- son named as Executor ..... ... 201 The Consequences of Eenunciation by an Executor .... 203 Of Letters Testamentary ofthe Wills of Eoreigners ..... 204 • CHAPTEE lY. OP THE APPOINTMENT OP ADMINISTRATOES . . 208 1. In oases of intestacy ....... '208 2. With the will annexed and de bonis non .... 22T 3. Special administrators or collectors ...... 230 In what Surrogate's Court, the Letters of Administration shall be obtained . 208 To whom General Administration is to be granted, and of the persons Incompetent to become Administrators ....... 209 Who are Incapable of being Administrators . . . . . 221 Of ihe Proceedings on taking out Letters of Administration .... 222 Of granting Administration with the Will annexed, and Administration de ionis non 227 Of granting Letters of Collection ....... 230 CHAPTER V. OP THE OONTROL OVER THE ESTATE BEFORE PROBATE, OR ADMINISTRATIOII GRANTED . 232 CHAPTER VI. OP THE INTEREST OP THE BIEODTOR OR ADMINISTRATOB IN THE ESTATE OP THE DE- CEASED, INOLUDma THE SUBJEOT OP TEE INTEREST AND BIQHIS OP THE DONEE MORTIS OAUSA ......... 235 OP THE DISPOSAL OF THE ESTATE OP THE DECEASED BY THE EXEO0TOE OH ADMINISTEA- TOB ........... 243 244 244 254 yiii TABLE OF CONTENTS. CHAPTER VII. OP THE DUTIES OP THE EXECUTOR OR ADMDnSTKATOR IN RESPECT TO THE INVBNTORT, AND OP BNPOROnra THE EBTUiar OP INTBNTOBIBS, AND OP THE ASSETS WHIOH 60 TO THE EXEOUTOR OR ADMINISTEATOB ....•• Of the Appointment of Appraisers . ....•■ OftheNotioeofthe Appraisement, and the Qualification of the Appraisers . ^ . Of the Manner of taking the Inventory, and of the Property to be included therein, and to be deemed Assets, and of the Property exempt from Appraisement, and to remain in the Possession of the Widow . . . " • • ^^ Of returning the Inventory, and of the Executor's or Administrator's Oath to the same .....•■•■'• Of the Proceedings to compel an Executor or Administrator to return an Inventory 266 Of the Effect of one or more of several Executors returning an Inventory, , . 262 Of returning further Inventories ...... • 2°" CHAPTER VIII. OP THE DUTIES AND LIABILITIES OP THE EXEOUTOR OR ADMINISTBATOE IN RESPECT TO THE COLLECTION OP THE PERSONAL ESTATE OP THE DECEASED . . 263 Of the Limitation of Actions in favor of the Estates of Deceased Persons . . 270 Of the Enforcement of Judgments obtained by the Deceased in his Lifetime . 212 Of Continuing Suits Commenced, and of Enforcing Judgments obtained by a former Executor or Administrator . ...... 2'J4 Of Set-offs in Actions by Executors or Administrators .... 2t4 CHAPTER IX. 278 CHAPTER X. rtWBRAL OHAEOES, and PaTMENT OP DEBTS ..... 284 OP THE DUTIES OP THE EXECUTOR OR ADMINISTBATOE IN RESPECT TO THE DISCHARSE OP THE PUNEBAL EXPENSES, AND THE PATMENT OP THE DEBTS OP THE DECEASED; THE LIABILITT OP TEE BXBCUTOE OB ADMINISTBATOE TO SUITS POR DEBTS OWINO BY THE DECEASED; THE HABttlTT OP THE ASSETS TO EXECUTIONS UPON JUDB- MENTS AGAINST THE EXBCUTOE OR ADMINISTRATOR, AND OP ENPORCma- THE PAYMENT OP THE DEBTS BY THE EXECUTOR OR ADMINISTRATOE, BY PEOCEED- UrSS m THE SUREOaATB'S COURT ....... 284 Of the Order of the Payment of the Debts, and herewith of the Funeral . 284 As to what Claims upon the Deceased survive against the Executor or Adminiatra- ' tor, and of the Liability of the Executor or Administrator upon the Acts of the Deceased ......... 290 Of the Liability of an Executor or Administrator on his own Contracts . 306 Of the Collection of Judgments against the Deceased in his Lifetime; of Suits pend- ing against the Deceased at the Time of his Death ; of the Limitation of Actions against Executors and Administrators; of Suits and Judgments against them; of the Publication of Notice for the Presentation of Claims and the Exhibition of Claims against the Deceased to the Executor or Administrator; their Reference and Payment ; and of Proceedings in the Surrogates' Courts to enforce the Pay- ment of the Debts against the Personal Property of the Deceased . . 311 Of the bringing and conducting Suits, the obtaining and enforcing Judgments, and the TABLE OF CONTENTS. IX ^ Prosecution and Collection of Olaima generally, gainst Executors and Adminis- trators; and herewith of the ascertaining tho Claims against the Estate by the Publication of a Notice, and the Reference of Claims presented, and the Disposi- tion of Claims referred . • . , Of enforcing a Judgment obtained against an Executor or Administrator after a Trial at Law upon the Merits ....... enforcing a Judgment obtained against an Executor Or Administrator otherwise \ than after a Trial at Law upon the Merits ..... Of 'ihe Enforcement of Debts against the Estate, whether in Judgment or not, by Pro- \ceedings in the Surrogates' Courts . . . . . Of t\e Ascertainment of the Debts of the Deceased by the Publication by the Bxecu- lor or Administrator of a Notice to Claimants to exhibit their Claims, and the subsequent Proceedings thereon ...... Of tie Adjustment and Retainer of Debts due by the Deceased, to the Executor or Administrator ......... 31S 336 340 342 34T 358 CHAPTER XI. ( LBOAOIBS AND THE PAYMENT AND DIS0HAE9B THEBBOB' ; OF ENFOBODfO THE PAT- \ MBNT OP LEaACIES, AND OF DISTBIBUTION IN CASES OF INTBSTAOT I is capable of being a Legatee ...... Of Requests to charitable uses ...... Of tie General Rules of Construction of Wills . . . . ■ Mods of Description of a Legatee ■Who ye entitled under the description of 1, "Children;" 2, "Grandchildren;'' life ;" 4, " Nephews and Nieces," ..... Of Misakes in the Names or Descriptions of Legatees Of Speofic Legacies ........ Of Legaties vested or contingent ...... Of Legades lapsed by the Death of the Legatee after the Death of the Testator Of the lafee of Legacies payable out of the Real Estate Of Conditbnal Legacies .... Of Oumulaive Legacies .... Of the Satittaction of Debts by Legacies Of a Legacj, by a Creditor to his Debtor Creditor Exieutor, .... Of the Adomtion of Specific Legacies OF THE PATENT OF LEUAOIES. All Debts mu$ be paid before aiiy Legacies are satisfied Of the Abateifflnt of Legacies Of the Executff's Assent to a Legacy At what Time Legacies are to be paid ; and herewith of Bequests for Life with re^ mainder oyl Of oogipelling tte Payment of Legacies, or Distributive Shares, by Proceedings in the SurrogaVs Court To whom Legaoia are to be paid Of Interest upon legacies Of the Payment o^delivery of Specific Legacies Of Election Of the Refunding If Legacies Of the Residuum, aid the Rights of the Residuary Legatees 360 360 362 311 3T7 311 381 384 B8t. 390 391 392 395 395 39t 399 399 402 402 409 411 413 419 425 429 431 433 438 439. TABLE OP CONTENTS. CHAPTER Xn. executors' accounts. OP OOMPBLLma EXBOUTOES AND ADMINISTEATOES TO BENDER ACOOUNTS m THE SUB- EOGATES' DOUBTS; Or THE BENDERIN8 AND SETTLIN9 OP SUCH ACCOUNTS; OP ENFOEOINC} THE PAYMENT OP CLAMS ON SUCH SETTLEMENTS ; AND OP THE DIS- TEIBUTION OP THE ASSETS EBMAmiNa IN THE EXEOUTOB'S OE ADMINISTBATOE'S HANDS, INCLUDINa KUMEEOUS PABTICULAES OP THE BXECUTOE'S OE ADMtNIS- TBATOE'S LIABILITT BY EEASON OP HIS OPPICB, AND A OOMPLBTB TXEW OP THE SUBJECT OP THE JJISTETBUTION OP THE SURPLUS IN CASES OP INTESTACY 445 Statutory Provisions ......... 446 Of oompelling an Executor or Administrator to account in the Surrogates' Court 461 Who may compel an Account . . ..... j451 Of the Petition for an Aoconnt ....... |462 Of the Order to Account ........ 454 Of the Proceedings on the Return of the Order ..... 455 Of the Form of the Account and of the Touchers . .... 459 Of the Executor's Oath to the Account ...... 4<0 Of the Proceedings on the Accounting ...... 460 Of the Mnal Settlement of the Accounts of Executors and Administrators . . 463 Of the Petition for a Pinal Settlement ...... 464 Of the Issuing and Service of the Citation for a Pinal Settlement . . . 466 Proceedings on return of Citation ....... 468 Proceedings as to Infant Parties ....... 469 Of the Adjournment of the Accounting . . . . . . 4T0 Of the Proceedings on the Accounting — the Porm of the Account . . 411 Of the Executor's Oath to the Account ...... 472 Of Contesting the Account . . . . . , . . 4T2 Of referring to an Auditor . . . . . . . .476 Of the Liability of an Executor . . . . . . .471 ■Of Debts due to the Executor . . , . . . . 4T8 Of Allowance for property perished or lost — Devastavit .... 478 Of the Executor's Accountability for Investments .... 482 Of the Liability of Executors for Interest ...... 488 Of the Allowance of Executor's CommisBions ..... 492 Of the Allowance of the Executor's Expenses . . . . .498 Of the Effect of the Pinal Settlement ...... 600 Provisions as to Disposition of Property still in Executor's hands, and Securiies not yetdae ....... , .623 Of Distribution in Cases of Intestacy ...... 525 Of the Rights of the 'Widow in the Distribution of the Effects of her Intes;ate Hus- band, under the Statute ........ 528 Of the Rights of the Children of the Deceased and their Representatives, t) Distribu- tion under the Statute - ^ . . . . . . • 628 The Rights of the Next of Kin of the Intestate under the Statute of Distrbutions . '532 Of Distribution where the Deceased, at the Time of his Death, was domidled abroad 631 Of the Disposition of the Personal Property of Intestate Married 'Womeri* . 540 Of Securing the Distributive Shares of Minors . . . ' . . 542 Of the Porm of the Surrogate's Decree ...... 542 ■Of Enforcing the Surrogate's Decree ....... 544 TABLE OF CONTENTS. XI CHAPTER XIII. •or THE AUTHOBITT OF THE EXBOtTTOE OE ADMOflSTEATOE OVBE THE REAL ESTATE OP THE DECEASED, AND OP SALES OF SUCH EEAL ESTATE, WHETHEE VOLTJKTAEY OB COMPUIiSOET, FOE THE PAYMENT OP THE DEBTS OF THE DECEASED Of the Proceedings by an Executor or Administrator to Procure an Order to Mort- gage, Lease or Sell the Real Estate of bis Testator or Intestate for the Payment of his Debts, ....... Of the Petition to Mortgage, Lease or Sell, Of the Appointment of Guardians of Minors interested, Of the Order to Show Cause why Authority should not be given. Of the Service and Publication of the Order to Show Cause, . Of the Hearing on the Return of the Order to Show Cause, Of entering the Demands adjudged Valid, .... Of the Order to Mortgage, Lease or Sell, Of determining whether Property shall be Mortgaged, Leased or Sold, Of the Order for Sale, ...... Of the Security to be given by an Executor or Administrator, or a person appointed in his place, on obtaining an Order to Mortgage, Lease or Sell, Of the Notice of Sale, ...... Eegulationsof the Sale, ...... Of Vacating or Confirming Sale, . Of the Conveyances of the Real Estate, .... Of the Disposition of the Proceeds of the Sale, Of the Payment of the Expenses of the Sale, and the Satisfaction of the Widow's Dower, .......... Of the Notice of the Distribution of the Proceeds and of such Distribution, Of the Disposition of the Surplus, ....... Of Proceedings by a Creditor to obtain an Order for the Mortgage, Lease or Sale of the Real Estate of a Deceased Person, for the Payment of his Debts, Of the Petition of a Creditor for an Order to have the Real Estate of his deceased Debtor mortgaged, leased or sold for the Payment of his Debts, Of the Appointment of Guardians for Minors interested, and the Order that the Ex- ecutor or Administrator show Cause, ...... Of the Order that Parties in Interest show Cause, .... Of the Order that the Executor or Administrator mortgage, lease or sell. Of Sales by Executors of the Real Estate of their Testator under a Devise or Power, Of the Sale of the Interest of the Deceased in a Contract for the Purchase of Land, . Of the Authority of an Administrator with the "Will annexed over the Real Estate of the Deceased, ......... Decisions upon Executors' or Administrators' Sales of Real Estate under Surrogate's Orders, .......... 551 553 653 655 66'r 65T 668 663 563 664 565 • 566 56f 668 668 6T0 6'71 512 513 5'75 516 6t8 6'?9 580 581 582 584 58T 688 CHAPTER XIV. OP PEOCBEDINOS FOE THE EEVOOATION OP PEOBATES, AND FOE THE REMOVAL OP EXECUTOES ; POE COMPHLIiING EXECUTOBS TO GIVE SEOUEITT, AND ADMINISTEA- TOES TO GIVE NEW SUEETIES, WHERE THOSE ALEEADT PEOVIDED AEE INSUF- FICIENT, OR DESIEB TO BE RELEASED, ...... Of Proceedings for the Revocation of the Probate of a Will on Allegations, Of Proceedings for the Removal of an Executor who is legally incompetent, and to compel an Executor, whose Circumstances are so precarious as not to afford ad- equate Security for his due Administration of the Estate, to give Security, or to remove him for want of Security, ...... 591 591 595 600 xii TABLE OP CONTENTS. Of Proceedings to Compel an Administrator, whose Sureties are Insufficient, to give further Sureties, or, for want of such further Sureties, to remove him from his Trust, . . . . I . . ^ ■ ■ Of Proceedings by a Surety of an Administrator, to be released from Responsibility for the future Acts or Defaults of the Administrator, and to compel such Admin- istrator to give new Sureties, and for want of new Sureties, to remove him from - his Trust, 601 CHAPTEE XV. GP COSTS AHD FEES IN THE SUBBOOATB'S OOUET, AND OF THE TJ ABILITY OP BXBO- tlTOBS AND ADMINISTEATOES TO THE PAYMENT OP COSTS, . . . 604 Of Costs and Pees in the Surrogates' Courts, ..... 604 1*668 of Surrogates, . . . . . . . . . 606 Of the Liability of Executors and Administrators for Costs in Suits in Courts other than the Surrogates' Courts, ....... 606 CHAPTEE XVI. or aUAlSDIANS; OF THE APPOINTMENT OF SBNEBAL SHAEDIANS BY SUEEOGATES, AND OF THBIE POWERS AND AUTHOBITY . . . . . " ^ 619 Of the Appointment of Guardians for Minors over the age of fourteen . . 624 Of the Appointment of Guardians for Minors under the age of fourteen . . 625 Of the Power and Authority of the Guardian ..... 628 CHAPTEE XVII. OF THE DUTIES AND LIABHITIES OF GTTAEDIANS; OP OOMPBLLINO THEM TO AC- COUNT IN THE SUEEO&ATE'S COUST ; OF THE EENDERINQ. AND SETTLING- OF THEIE ACCOUNTS, AND OF PB00BEDIN9S IN THE SUEEOSATE'S COUET FOE THBIE EEMOTAL. Of the accounts of Guardians ....... 634 Of the Eendering and Settling of the Accounts of Guardians in the Surrogates' Courts . . . . . . . . . . 631 Of the Removal of Guardians by proceedings before Surrogates . . . 641 APPENDIX OF POEMS. NOTE. Hie reader will please notice tiiat, in quoting the Statutes, the sections have been taken fifom, and numbered according to, the Second Edition of the Revised Statutes, and the Ses- sion Laws since the publication of that edition. The paging of the First Edition of the Revised Statutes, being the mar^al paging of all the subsequent editions, has been fol- lowed, and will, in most cases, be found stated in the Notes. The paging of the Fourth Edition will generally be found stated in connection with that of the First Edition. And such statutes aa have been incorporated into the Revised Statutes since the publication of the Second Edition, are referred to as printed in the Fourth Edition of the Revised Statutes, as well as by the pages at which they are to be found in the Session Laws. The reader will also make the following corrections : At page 95, commence a new paragraph with the word "It," in the 2_2d line. At page 126, read, as all' one sentence, &om the word "Assuming," in the 2Sth Hne, to the word " Statute," in the 33d line, both inclusive. There should not be more than a semicolon after the word " validity." At page \61, the second word of the seventeenth line should be " resisting," instead of "resting." At page 248, line 9, read " sperate," instead of " separate." At page 402, reference in note (v) should be cmte, p. 123, instead of 32^. The reader's attention may also properly be directed to the foUowing particulars respectr ing some of the points of law stated, and decisions quoted or referred to, in the course of this Work : The judgment of the Supreme Court in Seamanv. DtUyea, (10 Barb. S. C. R. 624,) referred ' to at pages 1, 30, 22, 23, 31, 632, 640, has been afBrmed by the Court of Appeals, and is reported on appeal in 1 Eeman, at page 324. By Statute 15 & 16 Vict., c 24, passed ITth June, 1852, " Wills Act— Amendment Act," 1852, Law Journal, (N. S.,) Vol. 21, Part III, Abridgment of Statutes, p. 14, a legislative construction has been put upon the provision of the Act 1 Vict., c. 26, requiring a will to be signed at Oie foot or end thereof The corresponding provision of the Statute of this State, will be found considered at page 62 et segi of this work. The English deeisippa referred tOj and quoted so far as they bear upon the construction of the Statute of this State, have the same application since the Amendment Act as before ; but the fact that such an act has been passed, may properly be noted. In the oaae of Whitbeck v. Patterson, (10 Barb. S. C. R, 608,) referred to, and quoted at pages IS-TT, the judgment of the Supreme Court, revers^ig a sentence of the surrogate of •the county of Monroe refusing to admit a will to probate, tas been reversed by the Court of Appeals, and, as is understood, an issue has been awarded. The judgment of the Supreme Court in Euibard y, Eubiard, (12 Barb. S. 0. R.i48,) affirm* adv ' NOTE, ing a sentence of the surrogate of the county of Suffolk, admitting to probate a nunoapative ■will, referred to at pages 121 and 185, has been affirmed by the Court of Appeals. See 4 Selden, 196. In the case of Boyd v. Davis, not yet reported, the Supreme Court, at General Term, in the Third District, on an appeal from a sentence of the surrogate of the county of Albany, afBrmed the sentence of the surrogate, and expressly determined that ■where a sole executor renounces, or all of several executors renounce, and administration with the wiU annexed is issued, the renunciation ia peremptory, and cannot be retracted ; and the exeoufor or executors named in the will cannot, after the death or removaJ of the administrator with the wiU annexed, retract his or their renunciation, and become entitled to letters testament- ary of the will. This is at variance with the views of the Chancellor expressed in Sob- erison v. McGeoch, (11 Paige, 640,) quoted in this work at pages 203, 204. In Sheldon against Bliss, (4 Selden, 31,) Mr. Justice Willard, ia a written opinion, held that the discretion given to the appraisers, with reference to the property, not exceeding in value $150, to be set apart, on taking an inventory, for the use of the widow and minor child or children of the deceased, by the statute of 1842, has reference mainly to the artades to be inventoried and set apart for the widow, and can never be referable to the amount, when the personal property left by the deceased exceeds in value one hundred and fifty dollara.- This subject is considered at pages 249-251 of this volume. The case of WHliawu against WUMams, referred to and quoted at considerable length at pages 364^'71, ia reported in 4th Selden, at page 525. The case of Wesiervat against Gregg, in the Court of Appeals, referred to innote (?), page 941, is reported in 2 Keman, at page 202. TABLE OF THE AMERICAN, MANY OF THE ENGLISH GASES CITED IN THIS WORK. [*] Abrams, Emmanuel, In the Matter of Pro- ving the Will of; 81,117 Ackerman v. Emott, 482, 488 Adams v. "Winne, 43, 130, ia2, 133, 402 Ainslie v. Radcliff, 287 AMen and Wife v. Bishop's Dxeeutors, 328 Allen «. The Public Administrator,. 61, 167 Alsop V. Mather, 310 Amerioan Home Missionary Society v. Wad- hams, 64, 56 Ames V. Downing, 282, 487 Amiss, In the Goods of, ' 93 Anderson, In the Groods of, 66, 106 Applegate y. Cameron, 262 Armstrong v. Moran, 389, 390 Arthur v. Arthur, 134 Atkins V. Kinnan, 7, 666, 670, 689 Atkinson's Will, In the Matter>o^ 174, 179 Attorney-General v. Stewart, 366 Ayery v. Smith, 616 Ayres v. Methodist Church, 43, 137, 365 Baboookw. Booth, 234 Baggott V. Boulger, 366, 647, 548 Sain, Admnstr. v. Fine, 274 Baker v. Eingsland, 559 Bank of Niagara, In the Matter of, 494, 496, 497 Foughkeepsiev. Hasbrouck, 463, 5QB Troy V. Topping, 308^ 309 Banks v. Phelan, 371, 382, 383 Bannatyne v. Bannatyne, 62 Baptist Association v. Hart, 364 Barker v. Woods, Barnes v. Vincent, Barnso v. Madan, Beck V. McGillis, Beers, Expmrte, Belden v. Knowlton, 428 65 392 133, 400 60, 81, 90, 97, 117 614 Benjamin v. De Groot, 334 Bennett D. Byrne, 627 Chapin, 494, 495 Bernes v. Weisser, 288, 289 Bibby v. Myer, 146 Bigelow V. Stearns, 556 Birdsallw. Hewlett, 391 Bishop V. Bishop, 389 Blaokstone v. Blaokstone, 401 Blahchard v. Nestle, 50 Bleecker v. Lynch, 52, 53, 146, 146 Bliss V. Sheldon, " 6, 20, 249, 252 Bloodgood V. Bruen, 525, 575 Bloom V. Burdiok, 6, 556 Bloomer v. Bloomer, 176, 243 Bodle «. Hulse, 204 Boehm v. Engle, 365 Bogardus v. Clarke, 365 Trinity Church, 41, 174 Bogart V. Tan Telaor, 461, 482, 483 Bogert«. Furman, 216, 634, 637 ' Hertell, 238, 267, 280 Borden «. Fitch, 566 Bosanquet, Charlotte Elizabeth lyes, lu the Goods of, 73 Bostwick V. Atkins, 568 Boughtonw.. Phillips, 351,617 Bowen v. Bowen, 346, 621 Bowers v. Smith, 439, 440 Bowles a. Drayton, 489 Boyd V. Davis, 204, 627 Bradhurst v. Bnadhurst, 374, 375 Bradley v. Amidon, 376 Burwell, 616. Bradstreet «. Clark, 376 Brant v. Wilson, 124 Brazier v. Clark, 489 Breath v. Brent, 201 Brets V. Ellis, Brenchley v. Lynn, 116 [^ English cases, lefecred to in the extracts Inserted in this woik fiom other publications, are not included . in tUs Table. XVI TABLE OP OASES. Brevoort v. Mo'Jimsey, 590 Bridgewater v. Brookfleld, 591 'Brinokerhoff, Dorothea, In the Matter of the Estate of, 233 Brinokerhoff v. Remsen, 79, 81, 83, 89, 115, 117 Brown Ex parte, 230 V. Brown, KS, 134, 193, 195, 202, 206, 234, 550 De Selding, 81, 86, 92, "108, 117 The Public Administrator, 288 Sprague, 43 Bryan v. Mulligan's Executors. 483 V. "White, 104, 124, 136 Buoklin ». Jord, 271, 272, 315, 317 Bulkley v. Eedmond, 223, 226 Bull V. Church, 34, 436 Bullock V. Bogardus, 350, 614 Bunce v. Vandergrift, 197 Burdett v. Doe, 104, 105 Burger v. Hill, 50, 53, 165, 168, 169, 201 Burhans v. Burhans, 355 Burritt v. Silliman, 82, 110, 166 Burr's Executors v. Smith, 364 Burtls V. Dodge, 491, 496, 499 Butler V. Benson, 52, 60, 61, 62, 7-4, 78, 110, 116, 116, 164. Butler, 376 Emmet, 6,671,574,678 Hempstead's Administrators, 328, 340, 343 ■Byrne v. Tan Hoesen, 620 Cairns v. Chabert, 417, 496 Call V. Ward, 633 Cameron & McKay v. Toung, 273, 313, 314, 832 Campbell v. Bowen, 274 Bruen, 346, 464, 461, 463, 516 Johnston. ; 282, 487 Logan, ■ 96, 99, 101, 117, 140 Eenwick, 292, 662, 575 Touseyj 205 Canal Commissioners v. The People, 365 Carhart v. Blaisdell's Executors, 612 'Carow V. Mowatt, 224, 232, 650 Carroll v. Carroll, 583 Case V. Abeel, 310, 487, 491 OattskilLBankti. Sanford, 273 Caw V. Robertson, 152, 163, 154, 361 Cayuga County Bank v. Bennett, 317 Chaffee v. Baptist Missionary Convention, 62, 71, 73, 74, 104, 105, 112, 115, 117, 162, 164, 167 Christian, In the Goods of, 98 Churchill v. Presoott, 222 Clapper v. House, 135 Clark V. Clark, 417, 478, 483, 485, 524, 633 Soripps, 129 Sexton's Executors, 314, 332 ! Clarke «. Bogardus, 397,398 Sawyer, 50 Clarkson v. Depeyster, 487, 490, 492, 632 'Clayton v. Leverman, 47 ■Warden, 402 Cleoburgh v. Beckett, Clinch V. Eckford, Clowes V. Van Antwerp, Coates V. Cheever, Coggeshall v. Pelton, Cogswell V. Cogswell, Cole V. Scott, Colegrove v. Horton, Collier v. Idley's Executors, Collin u. CoUin, Collins V. Hoxie, OoUinson v. Owens, - Colt V. Lasnier, Comstock V. Olmstead, Congdon, In the Matter of, Conger v. Ring, 126 497 500, 640 8 370 414, 416 137 199, 597, 598 594 42, 378, 379 379, 499 689 281, 491 611 629 487, 568 Conkliu V. Egerton's Administrator, 688 Connolly v. Pardon, 382 Coope V. Lowerre, 196, 197, 217, 221 Cooper, in the Goods of, 61, 6t In the Matter of, 643 Cope, in the Goods of, 98 Corwin v. Merritt, 6, 556, 657 Cotterel v. Brock, 698 Couenhoven v. Sohuler, 374, 376, 416, 418 Coutant V. Schuyler, 231, 242 Craig V. Craig, 242, 439, 683 Crispell ». Dubois, 1 1 9, 165 Cromer v. Pinckney, 372, 381, 383 Crosby v. Wendell, 374, 375 Cruikshank v. Cruikshank, 611, 615 Ourrie , Mungo, in the Matter of proving the Will 0^ 85, 117 Curtis' Executor v. Dutton, 607 Cutler V. Doughty, 380 Outto V. Gilbert, 124, 127 Dakin v. Doming, Hudson, 7, 459, 493, 506 6 Dan V. Brown, 129 Darby v. Condit, 607 Darrell v. Eden, 267 Davies v. Skidmore, Davoue v. Panning, Day, Ex parte. Decker i>. Miller, 337, 547 632 46 399 De Kay ». Irving, Delafleld «. Colden, 370, 377 618 Delaplaine v. Lawrence, 568 569, 570 Depeyster, In the Matter of, 495 V. Clarkson, 489, 491, 635 Clendenning, 418, 588 Dewitt V. Yates, 395 Dicken, Mary Ann, In the Goods of, 136 Dickenson v. Lee, 379 Dickson v. Purvis, 388 Dinmore Richard, In the Goods of, 69 Disbrow v. Henshaw, 637 Doan V. Hines' Administrators, 357, 615 Doe V. Roe, 62, 78, 87, 96, 107, 163 Dole V. Cook, 336 Irish, 209 Dominick v. Michael, 582, 588 Doolittle V. Lewis, 206, 234^ ,682 Doran «. Dempsey, 22, 31 TABLE OT CASES. xvu Doughty V. Stilwell, 400, 402, 535 Douglas V. Satterlee, 484, 485 Downs V. Boss, 102 Doz V. Backenstose, Administratrix, 330, 332 Drake v. Price, 494 Duncan v. Patty's Heirs, 631 Dunn V. Brouwyer, 428 Dunscomb v. Dunsoomb, 632 Dustan v. Dustan, 392 Dutch Church in Garden street v. Mott, 364 Dver, In the Matter of, 21, 628, 643 Baston's ■Will, In the Matter of, l'?6, 179 Eaton V. Benton, 305 Eckford V. DeKay, 632 Eddy V. Traver, 666 Edelen v. Dent, 396 Edmonds v. Crenshaw, 489 Edwards v. Morgan, 437 Egberts v. Vood, 237 Egerton's Administrator v. Concklin, 588 Bitel V. "Walter, 346, 521 Elliott V. Cronk's Administrators, 355, 356 Lewis, 484, 486, 498 Ellison V. Miller, 44 Emerson v. Bowers, \%1, 221, 599 Este V. Este, 55 Evans v. Evans, 275 IJvertson V. Tappan, 632 Eyre v. Gtolding, 430 Harrington v. King, 7, 555, 560, 561, 563, 565, 569 Fary, In the Goods pf, 129 Ferguson v. Broome, 551, 559, 560, 677, 578 Field V. Sohieffelin, 282 Fish V. Miller, 641 Fisher v. Fisher, 494, 497 Fitch V. Whitbeck, 554, 562 Fitz Patrick V.Brady, 343, 346, 509, 510, 519 Flagg V. Euden, 346, 351, 356, 519 Flintham's Appeal, 286 Floyd V, Barker, 441 Ferris, 439 Foot V. Gumaer'a Executors, 612, 615 Forbes v. Mitchell, 631 Ford V. Walsworth, 589 Fort V. Gooding, 350, 352, 356, 614, 616 Foster v. Tyler, 151 WUbur, 7, 466, 659 Fox V. Lipe, . 589 Franklin o. Low, 292 Frazer v. Western, 55 Fry 11. Evans, 267, 275, 335 Fry, 428 Gaines v. "Winthrop, 131 Galloway, In the Matter of, 301, 302 Gansevoort v. Nelson, 362, 353, 616 Gardner v. Gardner, 337, 376, 472, 474, 505, 519, 643, 618 Heyer, 37,9, 383 Miller, 399 Printup, 400, 401 . Cass, Hutchings v. Cochran, Hutchinson v. Smith, Hyde v. Tanner, TABLE OF OASES. 249, 289 129 36V, 368, eiV 271, 333, 334 426, 561, 622 119, 121, 186 the ©cods 70, 113, 114 271, 333 240,. 242, 243 541 108 275, 276 578 Idley V. Bowen, 128 loglis 11. The Sailors' Snug Harbor, 364 Irving ». De Kay, 374 Isenhart v. Brown, 410, 412, 429 lahami;. Gibbons, 4, 5, 140, 177, 180 181, 206 Ives v. Allen, 176 Jackson v. Babcock, Eetts,. Combs, CrawfordSr De Watts, Edwards, lE'itz Simmons, Green, Irwin, Zing, Robinson, Sill, Tan Dusen, ■Taeot V. Emmett, James v. James, Jauneey v. Thome, Jenkins v. 'EreyeT, 376 129 619 7 620 65 43 43 555, 689 49,50 7 374 51,98 491 439, 440 41,59,72,77, 78, 114, 162, 164, 171 378 Jennings, In the Matter of proving the Will ofi Jennings v. Phelps, Jermyn v. Hervey, Johnson v. Corbett, Jones, Executor, &c, Matter of the accounting o^ Jones V. Ward, 57 20, 346, 250 66 289, 303, 485, 500 of Mason, In the 346, 509 632 Judah V. Stagg's Executors, Judson V. Gibbons, 616 204, 682 Kane ». Gott, Keeney v. Whitmarsh, • 369 62, 78, 88. 146, 146, 163 Kellettw. Rathbone, 469, 472, 474,, 478, 491, 601 Kellinger v. Roe, - 626 Kellogg, In the Matter of, 494, 635 Kennedy v. Mills, 436 Kenney «. The Public Administrator, 242 Kent, John, In the Matter of the estate o^ 346, 453,. 467, 467 Ketehum v. Ketchum, Kettletas v. Gardner, Kidd V. Chapman, 346, 511, 515, King V. Strong, Woodhull, 370, Kirby v. Turner, 226, 485, Knapp V. Curtis, 614, Knight V. Wetherwax, Yarborough, Kohler v. Knapp, 6, 608 643 618, 619, 520, 521 439 439, 441 , 624, 630 615, 616 131 280 140, 209 tang V. Eopke, S'O Lanning v. Swarts, 354, 615 Lansing v. Cole, 614, 616 Lawrence v. Isaac, In the Matter of the Real Estate of, 559, 566, 568, 570 Lawrence v. Hebard, 59, 60, 378, 379, 389 Lawrence, 195, 206, 235 Miller, 573 Trustees of the Leake and Watts' Orphan House, 2 59, 298, 299 Le Fort v. Delafield, 436 Leonard v. Crommelin, 436 Lewis V. Lewis, 61,74, 75, 82, 90, 96, 97, 117, 165 Liddell i'. MoVickar, 500 Lidderdale v. Robinson, 485 Livingston, In the Matter of, 497 LockwQod V. Stockholm, 219 Lorrillard v. Coster, 377 Lupton V. Lupton, 411, 431, 438, 439 Lyon o. Smith, 60, 97, 98, 108, 111, 112 MacFarland ii. Irwin, 313 Maetier v. Frith, 277, 290 McAlister v. Montgomery, 280 MoCartee v. Orphan Asylum Soc'y, 43, 367 McCormick, Mo parte, McCosker v. Golden, McDonnell, Ex parte, MoEvers v. Pitkin, McGliusey's Appeal, McGuire v. Kerr, McKay v. Allen, MoMahon v. Harrison, McNamara v. Dwyer, MoSorleyw. McSorley, 45, 189 217, 218, 540 189 292 286 50, 64, 102 306 197, 221, 222, 599 205, 550 50,52 Magee *. Vedder, 346, 509, 510, 514, 520, 521 Mallory v. Vanderheyden, 304, 305 Mandeville v. Mandeville, 698 Manhattan Company v, Everisop, 288 Mann v. Mann, Manney v. Phillips, Maples V. Howe, Marre v. Ginnochio, Marselis v. Thalheimer, Marsh v. Hague, Wheeler, Marston v. Paulding, Martin v. Bradley, Mason v. Jones, Mathews v. Mathews, Maverick v, Reynolds, 376, 378, 382 617 566, 668, 573 197, 475 378 430 391, 441 21 292 373, 376, 596 653, 589 60, 62 TABLE OF CASES. XiX Meakings v. Cromwell, 583 Meehau v. Eourke, 50, 99, 102 Meroein v. Smith, 265, 276, 335 Merchant v. Merchant, 243, 4T5, 607 ■Merchants' Bank v. Birch 306 Merritt v. Seaman, 267, 275, 336 Hesick v. Mesiok, 484, 500 Metzger v. Metzger, 473, 474, 475 Mick V. Miek, 43 Mills V. Fogal, 175 Martin, 556 Mitchell V. Blane, 410 Moehring v. Mitchell, 56, 57, 588 MoUan v. G-rifBth, 303 Mooers v. White, 560 Moore v. Moore, 52, 96, 108, 662 Morehouse v. Cook, 627 Morrell v. Dickey, 206, 425, 427, 630 Morris w. Kent, 394, 431 Morris v. Keyes, 183 Moses V. Murgatroyd, 537 Mowatt V. Oarow, 379, 383 Mowry v, Silber, 60,165 Muir V. Trustees of The Leake and Watts' Orphan House, 193 Mulheran's Executors v. Gillespie, 396, 611, 616 Murray v. Elatohford, 238 Mumford, 293 Nelson v. McGiffert, 61, 109, 115, 124, 125, 126, 128, 164, 167 Niagara, Bank of. In the Matter of the, 494, 496, 497 Nichols V. Chapman, 279, 312 Nicholson v. Showennan, 610 Nodinge v. Alliston, 70, 117 OdeU V. Buck, 50 Ogilvie V. Ogilvie, 488 Olmstead v. Treedenburgh, 336, 339, 549 Oriental Bank v. Blake, Adm'r, 306 Orphan Asylum J). MoCartee, 364 Orserw. Hoag, , 43 Paine v. Bartlett, 641 Mathews, 506, 519 Palmer v. Palmer; 608 Parker, In the Matter of, 6,20,633 Parker's Executors!). Gainer's Adm'rs, 326 Parkinson v. Parkinson, 429 Parks V. Parka, 371, 372, 376, 377 Paterson v. Ellis, 391 Partridge, Adm'r v. Partridge, 396 Peebles v. Case; 115, 117, 164 Pemberton v. Parker, 380 Pendleton «. Fay, 583 People V. Barnes, 6, 7, 546 Conklin, 43 Corlies, 7 Gibbs, 292 Irvan, 43 Peoples.' Judges of The Albany Mayor's Court, 312, 340 Pelham, 28 Eowland, 546 Perley v. Sands, 602 Perry v. Mitchell, 31 Peters v. The Public Adm'r, 217, 224 Petrie v. Shoemaker, 50 Pew V. Hastings, 4, 5 Phillips V. Atkinson, 275 Plowden v. Hyde, 135 Pond V. Bergh, 43, 44, 137, 376, 376 Post, In the Matter of the Estate of, 197, 222 Potter V. Chapin, 371 Potter V. Etz, 609 Poughkeepsie, Bank of i;.Hasbrouck, 463,503 Powell V. Murray, 386, 618 Price V. Brown, 115 Price, Stephen, In the Matter of the Real Estate of; 575 Priest V. Watkins, 234 Prince v. Hazelton, 186 Pritchard v. Hicks, 618 Proctor V. Wanmaker, 5, 6 P)iblic Administrators. Peters, 215, 217, 226 Watts, 151 Rapalye v. Hall, Bathbone v. Dyokman, Bay V. Van Hook, Rea V. McBaohron, Redding, In the Goods of, 632 373, 374, 375 643, 605 590 129 Remsen v. Brinkerhofif, 41, 61, 72, 76, 81, 82, 89, 91, 116, 117, 163 Bienwick v. Renwiok, 219, 660, 562, 575 Reynolds v. Collins, 315, 317, 356 Reynolds' Adminrs., 339 Ricart v. Townsend, 29S Rice V. Jones, 175 Kchards v. Queen's Proctor, 124, 265 Richardson v. Judah, 579, 581 Ricketts v. Livingston, 397 Robert v. Dltmas, ■ 364, 356, 610 Roberts, In the Matter of; 494, 636 Catharine, In the Matter of the Will of, 179 Robertson v. Caw, 163 MoGeoch, 203, 204 Shiell, 616 Robinson v. Crandell, 206 Rogers v. HoUey, 616 King, 458^ 660 Rogers, 174, 523, 632 Roosevelt v. EUithorpe, 618 Thurman, 372. Root V. Stuyvesant, 370, 877 Taylor, 335 Rose V. Clark, 536 Rose, 134 Ruddon v. McDonald, 98, 111 Ruggles V. Sherman, 479 Russell V. Lane, 350, 362, 353, 614 Rutherford II. Rutherford, 77, 96, 107, 109, 167. XX TABLE OF CASES. Salmon v. Stuyveaant, 37'r Sanders' Heirs v. Sanders' Executors, 23 Y Sanford v. Granger, 660, 611, 578 Sehieffelin v. Stewart, 489, 490, 632 Sohnieder v. MeParlan, 666 Schoonmaker v. DeWltt, 309 Sohultz V. Pulver, 216, 267, 481 ficofield V. Soofield, 251 iSoott V. Nelson, 379 Seaman v. Duryea, 7, 20, 22, 23, 31, 632, 640 Seara v. Mack's Assignees, 576 Sedgwick v. Ashburper, 205 Seguine v. Seguine, 61, 62, 78, 96, 107, 165, 162 Shadwell, In the Goods of, 66, 68 Sherry v. Lozier, 59 Shumway v. Cooper, 21 Simpson v. Loft, 271 Skidmore v. Dayies, 6 Eomaine, 660, 561, 562 Blatter v. Carroll, 295 Smith, In the Goods o^ 61, 67 Smith V. Kearney, 398 Lawrence, 466i 469, 462, 505, 506 Smith, 383, 422, 632 Van Keuren, 454, 461 Wait, • 128 Webb, 196, 205 Snyder «. Young, 360,614 Spear v. Tinkham, 417, 418, 491 Spofford V. Manning, 437 Stagg V. Beekman, ' 397 Jackson, 626 Stake, Sarah, In the Matter of Proving the Will of, 116 Stanton v. Wether wax, 48, 6 2 Stephens v. Van Buren, 492, 618 Stevens v. Gaylord, 235 Stevenson V. Meisser, 320 Stewart, Sarah, In the Matter of the Will of, 65, 175 Stewart's Executor v. Lispenard, 41, 62 Stiles V. Birch, 487, 602, 506, 544 Stilwell «. Mellersh, 136,137 St. Jurjo V. Dunacomb, 220, 230 Story V. Van Rensselaer, 378 Stout V. Hart, 400 Strong V. Wilkin, 55 Stuart V. Kissam, 325, 438, 487 Summers, John, In the Goods of, 73 Sutherland v. Brush, 282, 485 Sweezy v. Willis, 211, 215, 633, 634, 537 Swift V. Blair's Bxr'x, 360, 356, 611 Duffield, 378 Taylor, M , In the Goods of, 103 V. Morris, 683 Taylor v. DeLancey, 223 Ten Eyck «. Vanderpoel, 309 Theological Seminary of Auburn «. Ohilda, 43 yhomas v. Cameron, 233 Stevens, 382 Thompson v. Graham, 277 Hall, lis Quimby, BO, 114 Thomson v. Thomson, 263, 256, 267, 2B9, 276, 457 Thornton v. Winston, 204 Thorpe v. Amos, 193> 243 Tole V. Hardy, *02 Tonuele v. Hall, 41, 62, 68, 102, 113 Tooker !). Oakley, 277 Torry v. Eowen, 81 Treat v. Fortune, 359 ITdall V. Ebnney, 428 Underbill v. Dennis, 36, 626, 627 United States o. State Bank of North Car- olina, 287 Valentine v. Jackson, 233, 234 Valentine, 493, 494, 496 Van Allen v. Mooers, 375 Van Alat v. Hunter, 52 Van Cortlandt v. Kip, 43, 46, 135, 439, 440 Vanderheyden v. Vanderheyden, 498 Vanderpoel «. VanValkenburgh, 1 Van Duzer v. Van Duzer, 428 Van Bpps v. Van Dausen, 428 Van Bpps, 282, 48» Van Home, In the Matter o^ 641 Van Kleek v. Dutch Church of New Tork, 43,439 Van Siokel v. Van Siokel, 641 Van Sickler o. Graham, 6 IT Van Veohten v. Van Veghten, 432 Van Vleck ii. Burroughs, 7, 344, 346, 850, 614 Van Wert v. Benedict, 55, 68, 151 Van Wyck v. Bloodgood, 391 Seymour, 93 Variok v. Bodine, 608 Vidall V. Girard'a Executors, 364 Vincent v. Barnes, 65 Voelckner v. Hudson, 252 Voorhies v. Baxter, 299 Vredenburgh v. Calf, 6 Vreeland v. McClelland, 134, 165 Vroom V. Van Home, 206, 232, 234, 235 Wakeman v. H^zelton, 497 Walker v. Sherman, 248 Wallace v. Fitz Simmons, 29t Markham, 860, 614, 615 Walsh V. Ryan, ' 150, 161 Walton 0. Walton, 386, 400, 401 Warner v. Warner, 126 Waters v. CuUen, 60, 52, 58 Waydell v. Velie, 346, 520 Weir V. Fitz Gerald, 60, 61, 113, 164, 165, 166, 16t Wenman u. The Mohawk Insurance Com- pany, 315, 316, 317 Wescott V. Cady, 375 West v. West, 43 Westerdeld v. Westerfield, 494, 495 Western v. Romaine, 26, 168, 604, 605 Westervelt v. Greggj 453, 454, 460, 461, 472 473, 474, 476, 641, 643, 606 Wener v, Martin, 193, 463 TABLE OF OASES. XXI Wheeler v. Wheeler, Whitbeek o. Paterson, White V. Carpenter, Parker, 631, 632, 633', Pomeroy, 226, 626, White, Whitmore v. Foose, 350, 352, Whittle, In the Goods of, Wilder v. Keeler, Wilkes V. Harper, Williams v. Crary, Harden, Williams v. Purdy, 331, 351, 460, Storrs, Upton, Williaios, 231 1 .1, 16, 11 1 281 1635, 640 ^629, 630 641 365, 614 61, 106 231 438 439 396 416 412, 414, 418 205, 236 211 365, 311 Williamson v. Williamson, 21, 410, 415, 411, 430 Wilson V. The Baptist Education Society, 1, 242, 346, 509, 614 Hetteriok, 81, 82, 90, 91, 111 Wing V. Ketchum, 210 Winue v. Van Sohaick's admn'rs., 341, 611 Wolfe V. Van Uoatrand, 314 Wood V. Byington, 660, 562 Vandenbergh, 410, 411, 611 Wood, 199 Woodin V. Bagley, 354 Woodruff «. Cox, 191,521 Wright V. Trustees of Methodist Episco- pal Church, 310, 601 Wright, 242, 490 Wurtz V. Jenkins, 469, 606 SURROGATES AND SURROGATES' COURTS, AND €«cutor3, !2li&Tinnt0trator0 anb ®ttarl)tan0, IN THE STATE OF NEW YORK. CHAPTEK I. OF THE JURISDICTION, POWERS, DUTIES AND LIABHITIES OF SURROGATES. Of the Origin of the Office. The office of surrogate in this state is in many respects similar to, and perhaps was derived from, the metropolitan and diocesan jurisdic- tions of England, exercising authority over the estates and effects of deceased persons. By the old law of England, the king, as the parens patrice and general trustee of the kingdom, was entitled to seize upon the goods of such persons as died intestate, to the intent that they should be preserved and disposed of for the burial of the deceased, the payment of his debts ; to advance his wife and children, if he had any, and, if not, those of his blood.(a) This prerogative the king exercised for some time by his own min- isters of justice, and it was granted as a franchise to many lords of manors and others, who have to this day a prescriptive right in these matters; (6) and afterwards, the crown, in favor of the church, invested the prelates with this branch of the prerogative ; which was done, saith Perkins, (c) because it was intended by the law that spiritual men are of (a) 2 Black. Comm. 494 ; 9 .Co. 38 b; lb. 3^6 ; ToUer on Executors, 80 ; "Williams on Executors, 329. (6) To this day, about eighty of the testamentary courts in England are lay courts, the franchise being attached to corporations, manors, forests, universities and hospitals ; and most of them are held by prescription, and are of indefinite antiquity, or of Saxon origin. Fourth Report of Commissioners on the Law of Real Property, pp. 60, 51, 107 ; 1 Bradf. Surr. Rep. xix. (c) 9 Rep. 38 2 ORIGIN OP THE OFFICE OF SUREOGATES. better conscience tlian laymen, and tliat they had more knowledge what things would conduce to the benefit of the soul of the deceased. The effects were therefore committed to the ordinary, and he might seize and keep them without wasting, and after the partes raiionabiles, or two-thirds bel&nging to the wife and children were deducted, might give, alien or sell the remainder at his pleasure, and dispose of the money in charity to the poor, or in such superstitious uses as the mis- taken zeal of the times had denominated pious. If he did otherwise, he violated the trust reposed in him as the king's almoner within his diocese. And as the ordinary had thus the disposition of intestate's effects, the probate of wills of course followed; for it was thought just and natural that the will of the deceased should be proved to the satis- faction of the functionary, whose right of distributing his chattels for the good of his soul was effectually superseded thereby.(ii) The goods of the intestate being thus vested in the ordinary upon the most solemn and conscientious trust, the reverend prelates were, therefore, not accountable to any but to God and themselves for their conduct. But the conduct of the ordinary did not justify the presump- tion which had been thus formed in his favor. The trust so confided to him he did not very faithfully execute. He converted to his own use, under the name of church and poor, the whole of such residue, without even paying the deceased's debts. To redress such palpable injustice, the Statute of Westminster 2, or the 13 E. I, ch. 19, was passed ; by which it is enacted, that the ordinary is bound to pay the debts of the intestate, so 'far as his goods will extend, in the same manner as executors are bound, in case the deceased has left a will : an use, as Mr. Justice Blackstone styled it, more truly pious than any requium or mass for his soul.(e) This, however, it has been said, was the law at common law, and that the Statute of Westminster 2 was made in affirmance of the commion law.(/) (d) 2 Black. Comm. 494 ; Toller on Executors, 80. This is the history of this jurisdiction, as given in the authorities quoted. The reader is referred, however, upon this subject, to the learned and interesting dissertation on "the origin of the ecclesiastical jurisdiction over the probate of wills, and tbe administration of the estates of deceased persons, as connected with the prevalence of the rules and principles of the civil law m this department of jurisprudence," contained in the introductory note to the first volume of Bradford's Surrogate's Court Reports. From this, it will appear that the jurisdiction of the ordinary was acquired in the reverse order to that above stated. That under the Anglo-Saxons, the probate of wills was exclu- sively the subject of the jurisdiction of the ordinary courts, or of those public assemblies which, by the custom of the age, possessed judicial powers; that the clergy probably, first, for purposes of convenience and assistance in expounding the laws ; and, afterwards, by cus- tom and royal warrant, became . presiding judges with the civil magistrate, in the most im- portant courts, and that these courts continued after the conquest, and exercised their cus- tomary jurisdiction, without any perceptible change, until about the eighteenth year of "Wil- liam the Conqueror, when he separated the ecclesiastical from the secular jurisdiction : that, although the church did not possess probate jurisdiction, either by the civil or the canon law, approaches were made towards the acquisition of this authority at a very early period : that, in the Saxon county courts, the pecuhar cognizance of wiUs would naturally tend rather to the charge of the bishop, than of the eari, and when, by the direction of William, the bishop ceased to sit with the earl, and was authorized to hold his own court at such place as he might designate, he took with him the probate jurisdiction : and that, the charge of the proot of wills, and the execution of legacies, being then in the bishop or ordmary, the administrar tion of the estate of an intestate, in progress of tune, flowed into the same channel. (e) Toller on Executors, 80. (/) 5 Kep. 82 b ; 9 Rep. 39 b. See Williams on Executors, 330-1. ORIGIN OF THE OFFICE OF SURROGATES. 3 But thotigh the ordinary was, either at common law, or now by force of this statute, liable to the intestate's creditors, yet the residue, after payment of debts, continued in his hands, to be applied to whatever purposes his conscience might approve. But as he was not sufficiently scrupulous to prevent the perpetual misapplication of the fund, the legislature again interposed, in order to divest him and his dependents of the administration. The statute 31 E. Ill, ch. 11, therefore provides, that in case of intestacy, the ordinary shall depute the nearest and most lawful friends of the deceased to administer his goods, and they are thereby put on the same footing, in regard to suits, and to accounting, as executors appointed by will.(5') This is the original of administrators, as they at present stand in England.(A) The vestiges of the old authority still linger in the forms in use in the ecclesiastical courts of England, and they have been fol- lowed in the Surrogates' Courts of this state. In our American law, we have assigned these as well as other secu- lar matters, to the courts and magistrates of civil jurisdiction.(i) Before the revolution, the power of granting letters testamentary and letters of administration, and perhaps other powers, vested in England in the ecclesiastical courts, resided in New York in the colonial gov- ernor, as judge of the Prerogative Court or Court of Probates of the colony.(y) The probate of last wills and testaments, and granting of administration of intestates' estates, were declared, by an act of the gen- eral assembly of the colony, of the 11th Nov. 1692, to be vested in the governor, " or in such persons as he should delegate under the seal of the prerogative court."(^) This right continued down to the revolution. By the " act to organize the government of this state," passed 16th March, 1778, the court of probates was instituted, and surrogates were first recognized under the state government.(Z) Before that time the governor of , the colony delegated persons in the different counties with similar powers. (»i) The session laws and the various revisions previous to the Eevised Statutes, contain numerous enactments respecting this officer. By an, act of the 5th of April, 1802, surrogates were authorized to allow of guardians who should be chosen by infants of the age of fourteen years, and to appoint guardians for such as should be within that age, {g) Toller on Executors, 81 ; 2 Black. Comm. 495-6 ; 1 Williams on Executors, 331. (A) Toller on Executors, 81 ; 1 Williams on Executors, 331. By Statute 21 Henry VIII, oh. 5, the ordinary is given a discretion to grant administration either to the widow, or the next of kin, or to both of them ; and, where two or more persons applying are in the same de- gree of kindred, he has his election to accept whichever he pleases. The Statute of Distribu- tions (22 & 23 Car. II, oh. 10; 29 Car. II, ch. 30,) destroyed the old common law right to the pars rationabUis, and made the estate distributable among the widow and next of kin — leaving still, however, in the hands of the administrator, for his own use, the third formerly retained by the church, and, finally, tho Statute of 1 Jac. II, oh. 11, made this third the sub- ject of the Statute of Distributions. "Thus, after the lapse of many years," says Mr. Surro- gate Bradford, "the restitution of the estate to the use of the family of the deceased, and its administration under certain prescribed rules was effected, and nothing was left to the spir- itual courts save the judicial cognizance of this classof eases." 1 Brad. Rep. Intr. note, p. xxvL . H) 2 Kent's Comm. 409. U) 2 Kent's Comm. 409 ; 3 R. and or. S. (2d ed. R. S.) App. 6T9. (ft) Bradford's Col. Laws, 16. h) Vide Gr. v. 1, 18, sec. 3. (m) 1 R. L. 1813, 454, note. 4 FORMER GENERAL POWERS. in as full and ample manner as the Chancellor of this state might or could appoint or allow of the same. They have been authorized, also, by statute, to cause the admeasurement of dower to widows. By the act of the legislature of 21st March, 1823, the Court of Probates was abolished, and all its Avritings, records and proceedings, were ordered to be deposited in the of&ce of the secretary of this state.(n) Of the former General Powers and Jurisdiction of Surrogates. It is not within the scope of this work to discuss any of the questions which formerly existed as to the powers and jurisdiction of surrogates in this state. Before the adoption of the Revised Statutes, their juris- diction was very undefined ; the laws respecting them, and the sub- jects of their cognizance, were defective, ambiguous and irreconcila- ble, and the practice and decisions were various and floating. The Eevised Statutes provided for the future an effectual remedy for these evils, by accurately and strictly defining the purposes and ends of the of&ce, the objects and extent of its authority, the means of exercising and enforcing such authority, and the duties and responsibilities of the officer. Of their Incidental and Constructive Authority. The first section of the title of the Eevised Statutes relative to Sur- rogates' Courts, as originally reported by the revisers, and enacted by the legislature, after enumerating the powers of the surrogate as herein- after given, concluded as follows : " Which powers shall be exercised in the cases, and in the manner prescribed by the statutes of this state, and in no other ; and no sur- rogate shall, under pretext of incidental power or constructive authority, exercise any jurisdiction whatever, not expressly given hy some statute of this state."{o) Whether or not it was found that the limited and precise terms of the Eevised Statutes were not adapted to the nature of the proceedings, or adequate to the business of the Surrogates' Courts, at any rate by the 71st section of the act of the 16th May, 1837,(j3) so much of this provision as is above printed in italics was repealed. After the Eevised Statutes, "it was found," says Chancellor Walworth, (g) " that the exercise of certain incidental powers by courts, was absolutely essential to the due administration of justice ; and that the revisers and the legislature had not, by their care and foresight, been able to take the case of these Surrogates' Courts out of the operation of the general rule." And it has been also remarked that the entire course of legislation since the adoption of the Eevised Statutes has looked rather to an enlargement than a diminution of the authority of the surrogate, (r) The vigor and extent of their incidental and constructive authority, since the repeal of the restrictive clause in the Eevised Statutes, have (n) S. L. 1823, 62. U] 2 R. S. (1st ed.) 221. (p) S. L. 1837, 536. (j) In Pew v. Sasimgs, 1 Barb. Oh. Rep. 454. (r) Ishamy. Gibions, 1 Bradf. Suit. Sep. 18. INCIDENTAL AUTHORITY. 6 been adverted to in several reported cases, and tTie exercise of powers not enumerated in the statute lias been repeatedly sustained and com- mended by the Appellate Court. In Vreedenhurgh v. Calf,{s) it was held that since the repeal of the prohibitory provision of the Revised Stat- utes, -where an order has been entered when the surrogate had not the power to enter such an order, he not only has the right, but it is his duty, to set it aside for irregularity. In Slddmore v. Davies{t) it was ex- pressly stated that the remedy of a party aggrieved by an irregular €x parte order made by a surrogate, is to apply to the surrogate to va- cate or set aside the order, and not by an appeal. And where a de- fault has been regularly taken in the Surrogate's Court against a party by mistake of the party or by accident, it is settled that the surrogate has the power to open the decree taken by such default, and set the same aside upon a proper application for that purpose, showing such mistake or accident.(M) And if an order is actually made by the sur- rogate at a particular time, and he was then authorized to make such an order, he probably has the right afterwards to enter it nunc pro tunc, as of that date, if by any inadvertence it was not entered in the oooks of his office at the time it was made.(w) The effect of the amendment of 1887, however, it seems, was only to restore to the surrogates the powers which were incidental and necessary to the proper discharge of the powers conferred upon them by statute or otherwise. The sec- tion as now amended, (presently to be given at length,) therefore, gives to the surrogates substantially the same powers as they possessed pre- vious to the adoption of the Eevised Statutes.(w) In Isham v. Gihbons,{x) before the surrogate of the county of New York, it was intimated on this subject that the surrogate has a right to receive a foreign probate in evidence where the deceased was domiciled abroad, independently of the statutory declarations. Although the stat- ute does not contain any provision expressly conferring the authority, it was considered in the ease of the last will and testament of Catharine Kerr, deceased, before the surrogate of the county of New York, that the surrogate has jurisdiction, where one will has been already admitted to probate, to take the proof of a subsequent will and to call in the pre- vious probate, that this power is essential to the administration of jus- tice, and a necessary incident to the exclusive jurisdiction of the surro- gate over the subject matter of the probate of wills. (y) And that the power to take the proof of wills being given generally, the mode of its exercise in a ease not provided for by statute, must be regulated by the court in the exercise of a sound discretion, according to the peculiar circumstances of each particular case. " For example," it was said, " there can be no doubt that a legatee or party interested in a later will, dis- covered after a previous will has been admitted to proof, has a right to have the last will proved and letters testamentary issued thereon ; but there cannot be two last wills and two sets of letters at the same time. (s) 9 Paige, 128. h) 10 Paige, 316. See also Proctor v. Wanmaker, 1 Barbour's Chan. Rep. 302. (u) Few V. Hastings, 1 Barb. Ch. Eep. 452 ; EarrisonY. McMahon, 1 Brad£ Surr. Eep. 283. Iv) Butler v. Emmett, 8 Paige, 12, 21. (w) In the Matter of Parlcer, 1 Barb. Ch. Eep. 154. Xsc) 1 Bradf. Eep. 69. (j/) See 2 R. S. 229; 4th ed. 418. 6 SURROGATES' COURTS— STATUTORY COURTS. It is incidental, therefore, to tlie exercise of jurisdiction in taking pro- bate of the last will and the consequent grant of letters, to revoke the first probate and the first letters testamentary." And in Kohhr v. Knapp,{z) it was held that, by the repeal, by the act of 1837, of the above mentioned limitation provided by the Eevised Statutes, the original jurisdiction of the surrogate in relation to the grant of administration, was placed where it had been previously to the Eevised Statutes, ex- cept so far as it was regulated expressly by statute. And it was declared that although the surrogate must in every enumerated case exercise his powers " in the cases and in the manner prescribed by the statutes of this state," yet in a casus omissus he should not decline jurisdiction be- cause the law is silent as to the mode in which it is to be exercised, when it is apparent that a proper occasion to invoke his authority has arisen, (a) Surrogates^ Courts — Statutory Courts. Suft-ogates' Courts are not, by the Revised Statutes, courts of record, but are named therein among the " courts of peculiar and special juris- diction."(6) " The Surrogates' Courts" are included in the enumera- tion of the courts of justice of this state, contained in see. 9, title 1, of the Code of Procedure. It was laid down previous to the enactment of the Code of Procedure, that the Surrogate's Court is entirely a creature of the statute, and that in pleading its decree it should be shown affirmatively, therefore, that the facts upon which it acted gave jurisdiction of the subject matter and of the persons.(c) By the Code,(c^) however, it is provided that in pleading a judgment, or other determination of a court or ofScer of special jurisdiction, it shall not be necessary to state the facts conferring jurisdiction, but such judgment or determination may be stated to have been duly given or made. If such allegation be controverted, the party pleading shall be bound to establish on the trial the facts conferring jurisdiction. Formerly, in all the cases relating to surrogates' sales of real estate, it was held that the person claiming under them must show affirmatively that the officer had acquired jurisdiction. (e) But now, by statute of March 23, 1850,(/) every sale heretofore made or hereafter to be made under any of the provisions of the title of the Eevised Statutes concerning the powers and duties of executors and administra- tors, in relation to ^he sale and disposition of the real estate of their (z) 1 Bradf. Rep. 241. (a) See also Bliss v. Sheldon, 1 Barb. Sup. Ct. Rep. 152. Independently of the statute of 1837, a surrogate has power to call in and revoke letters of administration, which have been irregularly and improperly obtained upon a false suggestion of a matter of fact, and without due notice to the party rightfully entitled to administration. Proctor v. Wanmaker, 1 Barb. Ch. Rep. 302. ^6) 2 R. S. 220, 276 ; 4th ed. 417. (c) Dakin v. Hudson, 6 Cow. 221 ; Corwin v. Merritt, 3 Barb. Sup. Ct. Rep. 341. See, also. The People v. £a/mes, 12 Wend. 492. (d) Code of Procedure, as amended July, 1851, sec. 161; Code of 1848, see. 138: 1849, 1851, sec. 161. (e) Shorn v. Burdick, 1 HiU, 130, 139 ; Carwin v. MerriU, 3 Barb. Sup. Ct. Rep. 341. {/) S. L. 1850, 117 ; 2 R. S. (4th ed.) 290. PLEADINGS IN SUEHOGATES' COtTRTS. 7 testator or iiitestate(g') and of the acts amending the same or in addition thereto, shall be deemed and held to be as valid and effectual as if made by order of a court having original general jurisdiction ; and the title of any purchaser at any such sale, made in good faith, shall not be im- peached or invalidated by reason of any omission, error, defect or irreg- ularity in the proceedings before the surrogate, or by an allegation of want of jurisdiction on tte part of such surrogate ; except in the man- ner and for the causes that the same could be impeached or invalidated, in case such sale had been made pursuant to the order of a court of original general jurisdiction. The Surrogate's Court, has however, only a special and limited statu- tory jurisdiction, and in general its proceedings can be sustained only by showing a conformity to the statute.(A) The authority to do certain acts, or to exert a certain degree of power, however, need not be given in express words. If the authority may be fairly and reasonably in- ferred from the general language of the statute, or if it be necessary to accomplish its objects, and to the just and useful exercise of the powers which are expressly given, it may be taken as granted.(i) And in matters and proceedings coming within the cognizance and jurisdiction of the surrogate, his decree is conclusive and cannot in general be im- peached in a collateral proceeding.(y) If the surrogate obtain jurisdic- tion, subsequent error or irregularity of the proceedings before him cannot be shown in a collateral action, (A) nor can his decree be im- peached even for fraud, (Z) nor even although it appear that there has been in the proceedings before him a palpable disregard of the direc- tions of the statute applicable to the matter before him.(m) Where, however, the surrogate has not jurisdiction of the subject matter of the suit or proceeding before him, no assent or submission of the parties can give him such jurisdiction. (n) Of Pleadings in Surrogates' Courts. There is not any statute or rule regulating pleadings in the Surro- gate's Court, but it is laid down that in this, as well as in other courts, the parties ought to make statements of their claims in the nature of pleadings, in order that the parties may be apprised of the questions in issue, (o) (Sr) Title 4, chap. 6, part 2, 2 B. S. 99 ; 4th ed. 284. (h) The People v. Corlies, 1 Sandf. Sup. Ct. Rep. 228 ; The People v. Barnes, 12 Wend. 492 ; Wilson V. The Baptist Educaiien Society, 10 Barb. Sup. Ct Rep. 308 ; Seamam v. Dwryea, 10 lb. 523. (i) Seaman v. Buryea, 10 Barb. Sup. Ct. Rep. 523 ; per Brown, J. {)) Atkins V. Kinnau, 20 Wend. 241 ; Jackson v. Crawfords, 12 Wend. 533 ; Jackson t. Sobinson, 4 Wend. 436; Vanderpoel v. VanValkenburgh, 2 Selden, 190; Farringten v. King, 1 Bradf. Surr. Rep. 182. (k) Jackson v. Botinson, 4t "Wend. 436. (/) See Atkins v. Kinnau, 20 Wend. 246. (wi) Vanderpoel v. Van Valkenbwrgh, 2 Selden, 190. hi) Dakin v. Deming, 6 Paige, 95. (o) Van Vleck v. Burroughs, (per Parker, J.,) 6 Barb. Sup. Ct. Rep. 344. See, alao, Foster V. Witlmr, 1 Paige, 540. 8 EXISTING SURROGATES' COURTS. Of Attorneys and Counsellors in the Surrogates^ Courts. Attorneys are not known as officers of the Surrogate's Court ; and the person appearing as attorney there, is not considered as an attorney on record, upon whom notices may be served, in the progress of a suit, prosecuted or defended by attorney.(p) The 75th section of the act known as the judiciary act, passed 12th May, 1847, authorizes solici- tors in Chancery and attorneys of the Supreme Court, admitted pre- viously to the first Monday of July, 1847, to practice in all the courts of this state; attorneys of the Court of Common Pleas of any county, admitted previously to the same day, to practice in the county court of the same county; and attorneys admitted by the Supreme Court, to prac- tice in all the courts in this state. This, however, probably has not had the effect to make such attorneys officers of the Surrogates' Courts. They represent the persons for whom they appear before the surrogate, only in the same manner as they represent their clients in the justices' courts. Of the Existing Organization of Surrogates^ Courts. The office of surrogate and Surrogates' Courts, as they at present exist in this state, are established by the foUowiag provisions of the constitution of the state : ARTICLE VI. Section 14, There shall be elected in each of the counties of this state, except the city and county of New York, one county judge, who shall hold his office for four years. He shall hold the county court, and perform the duties of the office of surrogate. In counties having a population exceeding forty thousand, the legis- lature may provide for the election of a separate officer, to perform the duties of the office of surrogate. Section 15. The legislature may, on application of the Board of Su- pervisors, provide for the election of local officers, not to exceed two in any county, to discharge the duties of county judge and of surro- gate, in cases of their inability or of a vacancy, and to exercise such other powers in special cases as may be provided by law. By the twelfth section of the fourteenth article of the constitution, it was provided that the Surrogate's Court of the county of New York, should remain, until otherwise directed by the legislature, with its then existing powers and jurisdiction. By the eleventh section of article 6 of the constitution, all ju- dicial officers except justices of the Supreme court, and judges of the Court of Appeals, and except justices of the peace, and judges and justices of inferior courts, not of record, may be removed by the senate on the recommendation of the governor ; but no removal can be made by virtue of this section, unless the cause thereof be entered on the journals, nor unless the party complained of shall have been served with a copy of the complaint against him, and shall have had an op- portunity of being heard in his defence: on the question of removal, the ayes and noes to be- entered on the journals. (p) Coates V. Oheever, 1 Cowen, 463, 4f 5. ELECTION'OF COUNTY JUDGES, ETC. 9 Of the Election of County Judges, and separate Officers to perform the Duties of the Office of Surrogate. Under the above clauses, requiring the election of county judges, and authorizing the legislature to provide for the election, in counties having a population exceeding forty thousand, of a separate officer to perform the duties of the office of surrogate, it was enacted on the twelfth day of May, 1847, by the " act to provide for the election of certain judicial and other officers, and to fix their terms of office," that the first election of the county judges, in the respective counties, (the city and county of New York excepted;) and all other judicial officers whose election should be thereby provided for, should be elected* on Monday, the seventh day of June, then next.(5') And by the second section of the same act, it was enacted that there should be elected a separate officer to perform the duties of the office of surrogate, in each of the counties of this state, (except New York,) having a population exceeding forty thousand, in which such separate officer should be de- termined upon as provided by certain subsequent sections of the act. The following three sections contain those provisions : Sec. 8. In all cases where any county in this state, (except the city and county of New York,) shall have a population exceeding forty thousand, the Board of Supervivors therein, at any meeting of such Board, may, by a resolution thereof, provide for the election of an officer other than the county judge, who shall perform the duties of the office of surrogate therein.(r) Sec. 9. Such resolution shall be immediately delivered by the clerk of the Board of Supervisors to the county clerk, whose duty it shall be to file the same in the office of the clerk of such county, and keep the same as a part of the records thereof Sec. 10. Within ten days after such resolution shall be filed in the office of any such county clerk, he shall transmit to the secretary of state, to be filed and kept in his office, a copy of such resolution duly certified by him.(s) * Thus, in the original, providing that an election should be elected. (q) S. L. 1847, 306. (r) 1 R. S. (4th ed.) 313, sec. 12. (s) S. L. 1847, chap. 276, p. 307. This section of the statute has been entirely disregard- ed. The following reply has been received from the office of the Secretary of State, to an inquiry respecting the copies of the resolutions of the Boards of Supervisors which the sec- tion requires to be filed : STATE OP NEW YORK. Secretary's Office, ) Albany, October 12th, 1854. ) Gentlemen : — No certificates of the passage of the resolutions contemplated by sec. 8, chap. 276, Laws of 1847, have ever been filed in this office. By whose neglect the omission has happened, I am unable to say. Respectfully, A. Gr. Johnson, Dep. Sec. of State. Messrs. Jordan & Datton, No. 61 Chambers St., New York. In aU probability, the resolutions of the Boards of Supervisors have never been delivered to the respective county clerks, pursuant to the 9th section of the act ; so that, in the several counties having a population exceeding 40,000, in which a surrogate has been provided for under the act of the 12th May, 1847, the only record evidence of the existence of the office at aU, consists of a resolution in the minutes of the Boards of Supervisors of the counties respectively. 10 COUNTY JUDGES, SEPARATE OFFICBES, ETC. By the eleventli section of the same act, it was provided that the Boards of Supervisors in the several counties of this state, (except NeAv York,) should meet at the office of the county clerk in their re- spective counties, on the twenty-fifth day of May, then instant ; and that when so convened, they should, in those counties having a popula- tion exceeding forty thousand, determine whether the office of county judge and surrogate should be sepairate ; but that this section should not apply to those counties having a population exceeding forty thousand, the Boards of Supervisors whereof had already determined whether to have a separate officer as aforesaid. By the "act to separate the offices of county judge and surrogate, in the county of St. Lawrence," passed May 10th, 1847,(<) it was pro- vided that the office of county judge, and the office of surrogate in the county of St. Lawrence, should be separate offices, and that a separate officer from that of county judge, should be elected in said county to perform the duties of the office of sufrogate.(M) Of the Time of Election, and Term of Office of County Judges, and Officers Elected to Perform the Duties of the Office of Surrogate. The 4th section of article 14 of the constitution, provided that the first election of county judges should take place at such time, be- tween the first Tuesday of April, and the second Tuesday of June, one thousand eight hundred and forty seven, as might be prescribed by law ; and that the said courts should respectively enter upon their duties on the first Monday of July next thereafter, but that the term of office of said judges as declared by the constitution, should be deemed to commence on the first day of January, one thousand eight hundred and forty eight. By the twelfth section of the act of the 12th May, 1847,(w) it was provided that the separate officers elected to perform the duties of the office of surrogate, and the local officers to discharge the duties of county judge and of surrogate, and elected at the election provided for in that act, should enter upon their duties on the first Monday of July, then next, and hold their offices for the term of four years from the first day of January, then next, and after the expiration of the term of office of those first elected, the term of office of said officers should be four years. Of Local Officers in certain Counties, to discharge the Duties of County Judge and Surrogate; the Time of their Election, and their Term of Office. Under the above 15th section of article 6 of the constitution, it was enacted by the legislature, by the act passed April 10th, 1849,(w) that there shall be elected in the counties of Jefferson, Oneida, St. Law- rence, Oswego, Orange, Chautauque, Cayuga and Tioga, at the next general election and as often thereafter, at any succeeding general election, as may be necessary, in the same manner as other county officers are elected, a local of&cer or two local officers, to discharge the duties of county judge and surrogate in their respective counties, in if) S. L. 1841, 2T0. (a) 1 R. S. (4th ed.) 313. iv) S. L. 1847, Vol I, 308; 1 R. S. (4th ed.) 313, seo. 14. \w) S. L. 1649, chap. 306, p. 437. SURROGATE OF THE COUNTT OF NEW YORK. 11 cases of vacancy or inatility of such officers or either of them, in pur- suance of section fifteen of article sixth of the constitution. When the duties of county judge and surrogate shall be discharged by the same person, there shall be elected as aforesaid, one local officer, and in such of the said counties, where the office of county judge and surrogate shall be separate, there shall be elected as aforesaid two local officers, and the term of office of the persons so elected, shall commence on the first day of January next, after their election ; they shall hold their offices for three years, and until others are chosen in their places and duly qualified, and shall be subject to removal in the same man- ner, and for the same causes as county judges and surrogates are sub- ject to be removed.(x) By acts of the legislature passed respectively April 6th, 1850,(2/) ^^^ July 11th, 1851(2) — the latter amended by act passed March 19th, 1852(a) — it is provided that there shall be elected in each of the coun- ties of Ulster and Chenango, (the Boards of Supervisors of the said counties having made application, as required by the constitution, to the legislature to provide for such election,) a local officer to dis- charge the duties of county judge, in the cases provided for in the fifteenth section of the sixth article of the constitution ; such local officer to be known and designated as a special county judge, to be elected at the next general election in the said counties respectively, and once in four ^ars thereafter, in the same manner as the county judge is elected, his term of office to commence on the first day of Jan- uary next after his election, to hold his office for the term of four years and until another is chosen in his place and duly qualified, and to be subject to removal for the same causes and in the same manner as county judges.(6) A similar act, passed March 28th, 1854,(c) provides for -the election in the county of bullivan, at the next general election, and as .often thereafter at any succeeding general election as may be necessary, in the same manner as other county officers are electedf, of a local offi- cer to discharge the duties of county j udge and surrogate of said county, in cases of vacancy or inability of such officer, in pursuance of section fifteen, of article sixth of the constitution ; the term of office of the person so elected to commence on the first day of J^iijuary next after his election ; the person elected to hold his office for three years, and until another shall be chosen in his place and duly qualified, and to be subject to removal in the same manner and for the same causes as county judges and surrogates are subject to be removed. Of the Election of the Surrogate of the County of New York, and his Term of Office. By the act of the legislature passed December 15th, 184:7,(c?) it is provided that there shall be elected at the general annual election in (x) 1 R. S. (4th ed.) 314, sec. 18. (y) S. L. 1850, 339. (z) S. L. 1851, 997. (a) S. L. 1852, 69; 1 R. S. (4th ed.) 1,34, 315. (6) In the county of Ulster, th,e special county judge, by the act, is to keep his o&oe in the toi^Ti of Kingston, (c) S. L. 1854, oh. 88, p. 169. (d) S. L. 184t, Yol. II, 121. 12 VACANCIES IN OFFICE. and for the eity and county of New York, held in the month of No- vember, in the same manner that other county officers of said city and county are elected, a surrogate for said city and county, who shall hold his office for the term of three years from the first day of January next after said election, on which day he shall enter upon the discharge of the duties of his office. The first election of said officer to take place at the general election in November, 1848, and the surrogate to enter upon the discharge of his official duties on the first day of January, 1849.(e) Regulations respecting Vacancies in Office, and for dispensing with Officers authorized to be elected to discharge the Duties of the Office of Surrogate. By the 13th section of the " act to provide for the election of certain judicial and other officers, and to fix their term of office," passed May 12, 1847,(/) as amended by the act of the 15th April, 1851,(5') when- ever the office of county judge shall be vacant in a county having a population exceeding forty thousand, or the term of office of such judg;e shall be about to expire, the Board of Supervisors of that county, if there be a separate officer to perform the duties of the office of surro- gate in said county, may resolve that there shall be no such separate officer in said county, and thereupon the office of such separate officer shall be deemed vacant and abolished from the time that the term of office of said separate officer shall expire ; or if there be no such sepa- rate officer, said board may resolve that there shall be such separate officer in such county, in which case such separate officer shall be elected at the time and in the manner in all respects, and for the same term that the county judge in said county shall be elected; and the said county board may at the same time alter the salary of the county judge, aud fix the salary of such separate officer, but no alteration of the salary of a county judge shall be made to take effect during the continuance of his term of office. The second section of the same act provides that every resolution providing for the election of or dispensing with such separate officer, shall be immediately delivered by the clerk of the Board of Supervisors to the county clerk, whose duty it shall be to file the same in his -office, and keep the same as a part of the records of such county, and within ten days after such resolution shall be filed in the office of any such county clerk, he shall transmit to the secretary of state, to be filed and kept in his office, a copy of such resolution duly certified by him. In case a vacancy occurs in the office of surrogate of the county of New York, the Board of Supervisors of said city and county is author- ized to fill such vacancy until the general election next ensuing the happening of such vacancy, when an .election is to be had to fill the unexpired term. (A) (e) 1 B. S. (4th ed.) 316, sec. 33. (/) S. L. 1847, 308. (?) S. L. 1851, chap. ITS, p. 331; 1 R. S. (4th ed.) 313, see. 15. (h) S. L. 1847, Vol. II, 728, sec. 3; 1 R. S. (4th ed.) 316, sec. 35. TIME FOR HOIDING SURROGATES' COURTS. 13 Of the Time for holding Surrogates' Courts, the Titles of the different Officers, and their respective Powers and Jurisdiction. By the fourteentli section of tlie "act to provide for the election of certain judicial officers," &c., passed May 12, 1847,(i) separate officers elected to perform the duties of the office of surrogate, under the four- teenth section of article 6 of ■ the constitution, are to be denominated "surrogate" of their respective counties. By the act " in relation to Surrogates' Courts held by county judges and other officers," passed July 21, 1853, (/) it is provided that in those counties in which the county judge is also surrogate, he may be named and designated simply as surrogate, Avithout any addition referring to his office as county judge ; and in those counties where the surrogate is a distinct officer, the county judge or other officer, when acting as sur- rogate, shall be designated by his official title, with the addition of the words, " and acting surrogate." The thirty-second section, article foiirth of the "act in relation to the judiciary," passed May 12, 1847,(yfc) provides that Surrogates' Courts, in counties in which the county judge performs the duties of the office of surrogate, may be held at the time and place at which county courts shall be held, and that the order of business of the county court. Court of Sessions and Surrogate's Court, shall be under the direction of the county judge, and that he shall perform the duties of the office of sur- rogate at such other times and places within his county, as the public interests shall require.(Z) By the thirty-third section of the same act, in counties in which the duties of the office of surrogate are performed by a separate officer elected to perform the duties of the office of surrogate. Surrogates' Courts are to be held at the times and places, and in the manner and with the same powers and jurisdiction as are provided by law.(?w) The thirty -seventh section of the same act provides as follows : " The county judge or other officer elected to perform the duties of the office of surrogate, and the local officers elected to discharge the duties of county judge and surrogate, when acting as surrogate, shall possess the same powers and perform all the duties and exercise the same jurisdiction as are now possessed, performed and exercised by the sur- rogates of their respective counties,, so far as shall be consistent with the constitution and' the provisions of this act. And all laws relating to the jurisdiction, powers and duties of surrogates, and Surrogates' Courts and their proceedings, shall be applicable to said judge or other officer, while performing the duties of the office of surrogate, so far as the same can be so applied, and are consistent with the constitution and the provisions of this act." In the counties having a population exceeding forty thousand, (except ' the city and county of New York,) the Boards of Supervisors whereof have, by a resolution, provided for the election of an officer other than the county judge to perform the duties of the office of surrogate, pur- suant to the act above quoted, "to provide for the election of certain (i) S. L. \%i1, Tol. I, p. 308; 1 R. S. (4th ed.) 313, sec. 13. (}) S. L. 1853, 1228. Qc) S. L. 184'7, Tol. I, p. 329. (i) 2 R. S. (4th ed.) 419, sec. 4. {m) lb., sec. 5. 14 ASSISTANTS AND CLEKKS OF SURROGATES OF NEW TORE AND KINGS. judicial and other officers," &c., passed May 12th, 1847,(n) every person elected pursuant to the said act, or the act above quoted amendatory thereof, passed April 15th, 1851,(o) has power to take affidavits, and the proof and acknowledgment of deeds and other instruments in wri- ting, with the same force and effect as if taken by a county judge, and for which he may charge the same fees.f^) In the counties of Orange, Chautauque, Cayuga and St. La\Trence, Tioga, Oneida, Jefferson and Oswego, the local officers elected to dis- charge the duties of county judge, (or of county judge and surrogate- in those counties where there is no separate officer to discharge the duties of surrogate,) are designated as special county judges, and such local officers so elected to discharge the duties of surrogate in those counties where there is a separate officer to discharge the duties of surrogate are designated as special surrogates. Such local officers so elected to dis- charge the duties of county judge, or of county judge and surrogate, or to discharge the duties of surrogate in those counties where there is a separate officer to discharge the duties of surrogate, possess all the powers and are required to perform the duties which are possessed and can be performed by a county judge out of court ; and any proceeding commenced before any such special county judge or special surrogate, may be finished by him, or he may, by order, direct that the same shall be finished by the county judge or by the surrogate, as the case may he.{q) In the counties of Ulster and Chenango, respectively, the special county judge authorized to' be elected by the above quoted acts of April 6th, 1850, and July 11th, 1851, respectively, possess the powers and perform the duties of the county judge of said counties respect- ively, in cases of the inability of said county judge to perform the duties of his office, or in case of a vacancy in the office of county judge ; and any proceeding commenced before such special county judge may be finished by him, or he may direct the same to be finished by the county judge. And any act done by said special judge is to be presumed to have been done in these cases until the contrary is shown.(r) By the above quoted act of the 28th March, 1854,(s) the local officer authorized by that act to be elected in the county of Sullivan, to dis- charge the duties of county judge and surrogate in that county, in case he shall be of the degree of counsellor at law in the Supreme Court, shall also possess all the powers and perform all the duties that are now performed by a county judge at chambers ; and any proceeding commenced before him may be finished by him, or he may, by an order made by him, direct that the same be finished by the county judge or surrogate. 0/tJie Assisiants and Clerks to the Surrogates of the Counties of New Yorh and Kings — their Appointment, Powers and Duties. By the seventh section of the "act in relation to the fees and com- (») S. L. 18«, 306. (o) S. L. 1851, 331. (p) S. L. 1851, 332. {? S.L. 1851, 192; 1R.S. (4thed.)314, sec. 19. ^' ' , t^^^^.^ h}f.^: ^=^P- "'' ^^°' ^i ^ ^- 18^1' "l^^P- 538, see. 3; S. L. 1.852, chap. 73; 1 K. is. (4tu ed.) 314-15. > i- i (s) S. L. 1854, 169. See onfe, p. 11. COMPENSATION OE COUNTY JtJDGES, ETC. 15 pensation of certain officers in the city and connty of New York," passed December lOtli, 1847,(0 the surrogate of the county of New York has the power to appoint so many assistants to aid him in the performance of the duties of his office, as he shall deem necessary for that purpose, not exceeding the number which he shall from time to time be authorized to appoint by the Board of Supervisors of the said city and county, whose duty it is from time to time to prescribe the number of assistants who may be so appointed, which number may at any time be increased or diminished by the said board. The said board fixes and may, from time to time, change tlie salaries to be paid to the assistants so appointed, but no such salary is to exceed the rate of twelve hundred dollars a year.(M) The appointment of every assistant under and by virtue of the act is made in writing, and filed in the ofiice of the clerk of the city and county of New York, before such assistant enters upon the discharge of his duties, and the surrogate is responsible for the acts of his as- sistants.(v) Such assistants have power, during the term of their appointment, to administer and certify oaths and affirmations in all cases in which the surrogate is authorized to administer the same, but such assistant cannot perform such service until he shall have taken an oath of office before the clerk of the city and county of New York, in the form pre- scribed by law in cases of other public officers, which oath is to be thereupon subscribed and filed in said clerk's office.(w) By an act of the legislature passed March 30th, 1849, (a;) the surro- gate of the county of Kings is authorized and required to appoint one or more clerks to assist him in his said office ; a certificate in writing of every such appointment to be filed by the surrogate in the office of the clerk of said county, and to be deemed and taken as evidence of such appointment. The clerks so appointed have power to administer oaths and perform such other duties as are properly incident to the business of the office, not inconsistent with the constitution and laws of the statfe.(j/) Of the Compensation of County Judges and other Officers authorized to dis- charge the Duties of the Office of Surrogate, and of, the Surrogate of the County of New Yorlc and his Assistants, and the Clerks of the Surrogate of the County of Kings. The 20th sedition of the sixth article of the constitution provides that no judicial officer, except justices of the peace, shall receive to his own use any fees or perquisites of office. The third subdivision of the above quoted 14th section of the same article, provides that the county judge shall receive an annual salary to («) S. L. 1847, Tol. II, p. 560. (u) 1 K. S. (4th ed.) 708, sec. 207. (v) S. L. 1847, Vol. II, 562, sec. 8 ; 1 R. S. (4th ed.) 708, see. 208. (w) S. L. 1850, chap. 201, p. 384; 1 R. S. (4th ed.) 708, sec 209. \x) S. L. 1849, chap. 173, p. 235, see. 1 ; 1 R. S. (4th ed.) 699, sec. 146. (V) lb., sec. 2 ; sec. 147. 16 COMPENSATION OP SUREOGATB OP N. T. be fixed by the Board of Supervisors, wliich stall be neitber increased nor diminished during his continuance in office. By the above quoted 11th section of the act of May 12, 184:7,(z) the Boards of Supervisors in the several counties of this state (except New York) were required at their meeting to be, held on the 25th day of May then instant, to fix the salary of the county judge, and, in the proper counties, of the separate officer elected to perform the duties of the office of surrogate, and also at the same meeting in those counties having a population exceeding forty thousand, after having determined whether the office of county judge and surrogate should be separate ; if separate, to fix the salary of such separate officer.(a) By the third subdivision of the third section of the " act to provide for the payment of certain expenses of government, to fix the salaries of certain judicial and other officers, and for other purposes," passed May 12, 1847,(&) it is provided that the salary of the county judge,shall be paid by the county and at the close of each quarter. The fourth section of the same act pro-^ides that any separate officer elected to perform the duties of the office of surrogate shall receive an annual salary, which shall be fixed by the Boaid of Supervisors, and paid at the close of each quarter by the county in which he shall be elected, and such salary shall not be increased or diminished during his continuance in office.(c) The fifth section of the. same act provides that all local officers elected in any county of this state to discharge the duties of county judge and surrogate, and exercise such other powers in special cases as may be provided by law, shall for their ' services respectively be paid by the county in which they shall be elected, such reasonable compensation as the Board of Supervisors of such county may deem proper to allow.(cZ) By the 3d section of the act of 10th April, 184:9,(e) authorizing the election of local officers to discharge the duties of county judge and surrogate in the counties of Orange, Chautauque, Cayuga and St. Law- rence, Tioga, Oneida, Jefferson and Oswego, it was provided that such local ofiicers should receive for the services to be rendered by them under the provisions of the act, such compensation as should be allowed to them respectively by the Boards of Supervisors in the said respective counties. The act of March 28, 1854, to authorize the election of a local officer to discharge the duties of county judge and surrogate, in the county of Sullivan, contains the same provision for the compensation of such officer. (/) The above quoted provisions of the act of May 12, 1847, apply to the special county judges authorized to be elected in the counties of Ulster and Chenango. ((/) (x) S. L. 184'!, 307. (a) The section further conflnna the proceedings of those Boards of Supervisors which had ahready acted in the premises. (6) S. L. 1841, 312 ; 1 R. S. (4th ed.) 712, see. 4. (c) 1 R. S. (4th ed.) 712, sec. 5. id) lb., sec. 6. (e) S. L. 1849, 437. See ante, p. 10. (/) S. L. 1854, 169, sec. 3. ' ' - i' • \ji) S. L. 1850, 340, sec. 5; S. L. 1861, 997, sec. 6; 1 R. S. (4th ed.) 314, 315, COMPENSATION OP SURROGATE OF N. T. 17 By the second section of the act "in relation to the fees and compen- sation of certain officers in the city and county of New York," passed December 10, 1847,(/i) it is provided that there shall be allowed to the surrogate of the city and county of New York, a salarj^ at and after the rate of three thousand dollars a year, as his compensation for all servi- ces whatever which he may perform as such surrogate or by virtue of his office. (i) By the sixth section of the same act, the supervisors of the said city and county of New York, may, at any time in the year one thousand eight hundred and forty-seven, and in every second year after the year one thousand eight hundred and forty-seven, increase or diminish the salary of the said surrogate as fixed by the act, no such increase or diminution to vary said salary more than five hundred dollars from the sum at which it is fixed by the act, and any such increase or diminu- tion to take efiect on the first day of January next after the same shall be so made by the said board.(y) The eleventh section of the same act, provides that no account for the compensation for services of any assistant to be appointed under and by virtue of the act shall be allowed, until such assistant shall have certified on oath or affirmation, that the services have been' per- formed for which such account may be rendered, and that he has not in any way, directly or indirectly, paid or given, nor contracted to pay or give, any reward or compensation for his office or employment, or the emoluments thereof.(^) By the fourteenth section of the same act, the salary of the surrogate and his assistants therein before provided for, and which might there- after be provided for by the Board of Supervisors of the said city and county, under and by virtue of the act, is to be paid out of the fees, perquisites and emoluments received from the surrogate into the trea- sury of said city and county, subject to the limitation afterwards pre- scribed in the act, upon the Warrant of the comptroller of the said city and county, in quarter yearly paj'ments, unless a different period for such payments is fixed by the said Board of Supervisors. (Z) By the fifteenth section of the same act, any contingent expenses necessarily incurred by the surrogate, and for which the common council of the city of New York shall make appropriation, are to be paid out of the fees, perquisites and emoluments received from the sur- rogate into the treasury of the city and county of NeW York, on the warrant of the comptroller of said city and county.(m) And by the sixteenth section, the comptroller of the said city and county is to keep a separate and distinct account of all fees, perquisites and emoluments received from the surrogate, and of all disbursements on account of his office, for the salary of the principal officer and assist- ants therein', and for the aforesaid contingent expenses thereof; and no greater sum is to be paid in any one year, for such disbursements for the said office, than shall be received into the treasury of the said city and county, on account of the fees, perquisites and emoluments (h) S. L. 184^, Tol. II, 560. (i) 1 B. S. (4th ed.) 70T, sec. 202. (j) 1 E. S. (4th ed.) 707, sec. 206. (k) S. L. 1847, 563 ; 1 R. S. (4th ed.) 709. {[) 1 R. S. (4th ed.) 710, sec 216. (to) lb., see. 217. IQ SECURITY EEQUIEBD OF SUREOGATES. accruing at sucli office during such year, wHch year is to be taken to mean the period from the first day of January, to the thirty-first day of December next following, both inelusive.(n) In the county of Kings, the Board of Supervisors is to audit and allow as compensation to the clerk or clerks authorized by the act of March 30th, 1849, above quoted, to be appointed by the surrogate of the county, for the performance of his or their duties, a sum not ex- ceeding in amount the balance of the fees and emoluments by law allowed to be received for the benefit of the county, and actually paid into the treasury thereof by the said surrogate ; after deducting there- from the amount fixed by the Board of Supervisors, to h6 paid to said surrogate for his salary, (o) Of the Security required of Surrogates, and the Prosecution of their official Bonds. The Eevised Statutes contain the following provisions, regulating the security to be given by surrogates : Sec. 144. [Sec. 87.] Every person hereafter appointed [now elected] to the office of surrogate of any county, shall within twenty days after receivifig notice of such appointment, execute to the people of this state, with two or more sureties, being freeholders, a joint and several bond conditioned for the faithful performance of his duty, and for the application and payment of all moneys and effects, that may come into the hands of such surrogate in the execution of his office. The bond of the surrogate of the city and county of New York, shall be in the penal sum of ten thousand dollars ; of every other surrogate in the sum of five thousand dollars.(p) Sec. 145. [Sec. 88.] The clerk of the county for which such surrogate shall have been appointed', shall be the judge of the sufficiency of the sureties ; and in case he shall be satisfied by the oath of the sureties, or otherwise, that they are good and sufficient, he shall indorse on the bond a certificate of his approval, and file such bond in his office, there to remain a matter of record.(g) By an act of the legislature of the 10th March, 1847,(r) the Board of Supervisors, of the city and county of New York, are authorized and empowered to require from the surrogate of the city and county of New York, and from any of his assistants, such security for the faithful performance of his duty, as to the said Board of Supervisors may seem necessary and proper. With respect to suits on the official bonds of surrogates, the Eevised Statutes provide, that whenever the surrogate of any county shall be guilty of any default or misconduct in his office, the party aggrieved thereby may apply to the Court of Chancery, (s) for leave to prosecute the official bond of such surrogate. The application must be accom- (n) lb., sec. 218. \o) S. L. 1849, 235, chap. ItS, sec. 2; 1 R. S. (4th ed.) lOO, sec. 147. (p) 1 R. S. 382 ; 4th ed. 699. (q) lb. (r) S. L. 184'7, 560, sec. 13; IE. S. (4th ed.) 709, sec. 215. (s) Now to the Supreme Court. See " act in relation to the judiciary," art. 3, sec. 16 ; L. 1847, 323. .:. , , SPEOrPIO POWEES AND DUTIES OF SURROaATES. 19 panied by the same proof required by law in proceedings on sheriff's bonds ; and upon such leave being granted, the applicant is authorized to prosecute such bond in the name of the people of this state, in the Supreme Court only, in the same manner, with the like effect and sub- ject in all respect to the provisions of law, in respect to suits on the official bonds of sheriffs ; and the Supreme Court possesses the same powers in relation to such suits, (i) Of the Locality of the Office of Surrogate^ and the Oath of Office. The surrogate is a local oificer, and is confined in the execution of his duties to the county for which he is elected.(M) Before entering on the duties of Lis office, and within fifteen days after notice of his election, or within fifteen days after the commencement of his term of office, the surrogate is required to subscribe and take the constitutional oath of office, which must be filed in the office of the clerk of the county.(w) Of the Specific Powers and Duties of Surrogates. The first title of the second chapter of the third part of the Revised Statutes, entitled " of Surrogates' Courts," provides as follows : Sec. 1. Every surrogate who shall have duly qualified, by taking the oath and executing the bond required by law, shall hold a court within the limits of the county for which he was appointed, and shall have power : 1. To take the proof of wills of real and personal estate, in the cases prescribed by law ; and also to take the proof of any will relating to real estate situated within the county of such surrogate, when the testa- tor in such will shall have died out of this state, not being an inhabi- tant thereof, and not leaving any assets therein ; 2. To grant letters testamentary, and of administration ; 3. To direct and control the conduct, and settle the accounts of exe- cutors and administrators ; 4. To enforce the payment of debts and legacies, and the distribution of the estates of intestates ; 5. To order the sale and disposition of the real estates of deceased persons ; 6. To administer justice in all matters relating to the affairs of de- ceased persons, according to the provisions of the statutes of this state ; 7. To appoint guardians for minors, to remove them, to direct and control their conduct, and to settle their accounts, as prescribed by law; 8. To cause the admeasurement of dower to widows ; Which powers shall be exercised in the cases,. and in the manner prescribed by the statutes of this state.(t<;) It is difficult to say what direction and control over executors and administrators, was intended to be given to the surrogates by the above (0 2R. S. 479; 4th ed. t21. (u) See 1 R. S. 101; 4th ed. 308, aec. 9, (sec. 11.) («) 1 R. S. 119, 20 ; 4th ed. 330. (w) 2 R. S. 220; 4th ed. 418. 20 SPECIFIC POWERS AND DUTIES OF SUBROGATES. third subdivision of this section. It has been determined that its gen- eral language is not to be construed in such a manner as to give to a surrogate the power to direct and control the conduct of executors and administrators, relative to suits and proceedings in other courts. Thus, where an application was made by a legatee to the surrogate, for an order directing the executor to desist from the further defence of an action upon certain promissory notes of the testator, alleged by the petitioner to be due, and which, if they were to be charged upon the property, would render the estate insufficient to pay the debts and gen- eral legacies, and also to desist from the further prosecution of a suit in Chancery, brought by the executors for a discovery of the consideration of the notes, and from any further proceedings to resist the claim of the holder and owner of the notes, until the residuary legatees, for whose benefit the claim was resisted, should give security to indemnify the estate of the testator against the costs and charges of the litigation, it was held on appeal that the surrogate had not jurisdiction to make the order.(x) The words of the subdivision, however, are general, and would seem to be directly applicable to a case in which an executor persists in exercising the functions and discharging the duties of his trust erroneously or irregularly. And any person who suffers an injury by the erroneous action of the executor in his proceedings in the surro- gate's office, may lawfully call upon the surrogate to control his conduct. Thus, if in making out an inventory the executor should adopt an erroneous principle, it seems that he may be controlled by the surro- gate.(y) In Jennings v. PlieVps^ administrator, WHO IS CAPABLE OF MAKING A WILL. 51 A man who is born deaf, dumb and blind, is looked upon by the law, as in the same state with an idiot, he being supposed incapable of any understanding, as wanting all those senses which furnish the hu- man mind withideas.(y) Even one who is deaf and dumb from his nativity, is, in presumption of law, an idiot, and therefore incapable of making a will ; but such presumption may be rebutted, and if it suffi- ciently appears that he understands what a testament means, and has a desire to make one, then he may by signs and tokens declare his testament(^) A lunatic, that is a person' usually mad, but having intervals of reason, during the time of his insanity cannot make a testament, nor dispose of anything by will. And " so strong is this impediment of insanity of mind, that if the testator make his testament, after this furor has overtaken him, and while as yet it possesses his mind, although after tine furor departing or ceasing, the testator recover his former un- derstanding, yet does not the testament made during his former fit, recover any force or strength thereby."(?) If any one attempt to call in question or overthrow a will, on ac- count of any supposed insanity, or " want of memory," as it is techni- cally termed, in the testator, he must prove such impediment to have existed previous to, and at the date of the will ; and must establish such incapacity by the clearest and most satisfactory proofs. The burden of proof rests upon the person attempting to invalidate what, on its face, purports to be a legal act.(m) Every person making a will is presumed to be of sound understanding, until the contrary be proved, so that the proof lies on the other side.(n) Where the general compe- tency of the decedent is not questioned, the onus of proving that, at the particular time when the will was executed, he labored under any delusion, aberration or weakness of mind, rests with the contestant.(o) Soundness and perfectness of mind, are held in law to be absolutely requisite in the making of wills ; the health of the body merely, not being regarded. If general insanity be proved, it is presumed to con- tinue until a recovery be shown ; and the party alleging a restoration to sanity, must prove his allegation.(jp) But if mad persons have lucid intervals, during which they are fully possessed of a sound and disposing mind, memory and understanding, and in such intervals make their wills, they will be good in law ; so, if any person of sound mind make his will, it will not be revoked or affected by his subse- quent insanity.(g') With respect to persons of unsound mind having lucid intervals, it malcer, 24 Wend. 85 ; Bkmcha/rd v. NesUe, 3 Denio, 37 ; Olarke v. Sawyer, 2 Comst. 498 ; Bwger v. EiO,, 1 Bradf 360; Weir v. Fiiz Gerald, 2 Bradf. 42; Mowry v. Silber, lb. 133 ; McSorUy v. McSorky, lb. 188 ; McGuire v. Kerr, lb. 244; Waters v. CuUen, lb. 354 ; Mave- rickr. Beynolds, lb. 360 ; MeeJum v. Rowlce, lb. 385 ; Thompson v. Quimby, lb. 449. (j ) 1 Black. Comm. 304. (ft) Wma. on Bxrs. 16. See also Weir v. i^fe Gerald, 2 Brad£ Surr. Sep. 42. ]}) Swinb. part 2, see. 3, pi. 2 ; Wms, on Exrs. 18. (m.) See Wms. on Exrs. 18. (n) Bums' Eceles. Law. \o) Allen V. The PvMic Admmisirator, 1 Brad£ Surr. Rep. 378 ; 2 Curteis, 415. (p) GroMlv. Baarr, 5 Barr, 441. See also Jackson v. VandMsen, 6 Johns. 144. (a) Roberts on Wills, Lovelaas, 52 WHO IS CAPABLE OF MAKING- A "WILL. • is sufficient if the evidence adduced in support of tlie -will, shall estab- lish that the party afflicted had intermissions, and that there was an in- termission of the disorder at the time of the act. But the order of proof and presumption, is thereby inverted ; for vsfhere habitual in- sanity is established, then the party who would take advantage of the act, done during an interval of reason, must prove such act to have been so done. In all these cases, the question is, whether a lucid in- terval did exist in which the act was done, and if it can be proved that such an act was rationally and sensibly done, and if it does not appear that there existed any delusion, or gross inconsistency in the disposal of the propert}^, the whole case is proved, and nothing is left to pre- sumption to show the lucid interval. But it must be shown that the act was done without any assistance from another person, and tliat the lucid interval was of sufficient length to do the act intended. The consistency and propriety of the act, will also be taken into considera- tion, for the purpose of showing, that a lucid interval really did exist; and such internal evidence will generally have more weight with the court than the mere opinion of witnesses.(7-) Partial insanity, or insanity on a particular point, may invalidate, a will which proceeds from the effect of such partial insanity, and which may fairly be presumed to have been made under its direct and imme- diate operation. But such fact is extremely difficult of proof, as direct mental perversion and actual 'insanity, with respect to the object of such delusion, must be satisfactorily established.(s) Besides the two classes of persons non compotes mentis already men- iioned, viz., idiots and lunatics, there are two more classes, viz., those who were of good and sound memory, and from some cause not di- rectly attributable to their own act or conduct, have lost it; and those who have become non compotes by their own act, as drun7eards.{t) In the former of these two latter classes must be reckoned those, who from sickness, grief, accident or old age, have lost their reason, who are not like those classed by Lord Coke as '^lunatici" sometimes hav- ing their understanding, and sometimes not : but whose understandings are defunct ; who have survived the period of the stability of their minds.(M) But old age alone, does not deprive a man of the capacity of making a testament, for a man may freely make his testament, how old soever he be : since it is not the integrity of the body, but of the mind that is requisite in testaments.(w) " It is one of the painful consequences of {r) Ca/rtwrigM v. Cartwright, 1 PhiUim. 90. See also Scruby v. Fordham, 1 Add. 90; Chambers v. Queen's Procior, 2 Curt. 415, 451 ; "Wms. pn Exrs. 20, 21, 22, 23 ; Ba.nnatyne v. Bannaiyne, 16 Jur. 864; 14 Eng. L. & Eq. Rep. 581; 2 Robert 4T2. (s) Dew Y. Clark, 1 Add. 279 ; 3 Add. 19; Stanton v. Wetherwaa>, 16 Barb. S. C. E. 259, 263. It must, however, be observed that the rule of law is, that in civil suits, it is not necessary to trace or connect the morbid imagination with the act itself. K the mind is unsound, the act is void. The law avoids every act of the lunatic, d/wring the period of the lunacy, although the act to be avoided, cannot be connected with the influence of the insanity, and may be proper in itself Gfroom v. Thomas, 2 Hagg. 436 ; See Wms. on Exrs. 267. (i!) See McSorley v. McSorley, 2 Bradf Surr. Rep. 188 ; Waters v. Cullen, lb. 354. iu) See Wms. on Exrs. 34. (t;) Swinb. part 2, sec. 5, pi. 1 ; "Wms. on Exrs. 34 ; Van AM v. Hunter, 5 Johns. Ch. Rep. 158; Bleecker v. Lynch, 1 Bradf. Surr. Rep. 458; Butler v. Benson, 1 Barb. Sup. Ct. Rep. 526, 538 ; Moore v. Moore, 2 Bradf. Surr. Rep. 261 ; Maveridc v. BeynoUs, lb. 360. "WHO IS CAPABLE OF MAKING A WILL. 53 extreme old age," says Chancellor Kent in Van Akt v. Hunter, " that it ceases to excite interest, and is apt to be left solitary and neglected. The control which the law stUl gives to a man, over tho disposal of his property, is one of the most efficient means which he has in protracted life, to command the attention due to his infirmities. The will of such a^ aged man ought to be regarded with great tenderness, when it ap- pears not to have been procured by fraudulent acts, but contains those very dispositions which the circumstances of his situation, and the course of the natural affections dictated." Yet obviously old age may- be the cause of, or accompanied by such a defect or perversion of un- derstanding and discernment, and such a loss of memory, as to render the party equally as incapable to make a valid will, as an idiot or a child, or a lunatic person. Defect of memory, however, unless it be total or appertain to things very essential, is not suf6.cient to create in- competency, (w) It is laid down that it is not necessary to go so far as to make a man absolutely insane, so as to be an object for a commission of lunacy, in order to determine the question, whether he was of a sound and dispo- - sing mind, memory and understanding. A man, perhaps, may not be insane, and yet not equal to the important act of disposing of his prop- erty by will.(a;) In order to constitute a sound disposing mind, the testator must not only be able to understand that he is, by his will, giving the whole of his property to the object of his regard, but must also have capacity to comprehend the extent of his propertj^, and the nature of the claims of others, whom, by his will, he is excluding from participation in that property.(y) And generally he must possess an intelligent understanding of the contents and the effect of the instru- ment.(g) As to the last of the classes of non compotes mentioned: " He that is overcome by drink," says Swinburne,(a) " during the time of his drunk- enness, is compared to a madman, and therefore if he make his testa- ment at that time, it is void in law, which is to be understood, when he is so excessively drunk, that he is utterly deprived of the use of reason and understanding; otherwise, albeit, his iinderstanding is ob- scured, and his memory troubled, yet he may make his testament, be- ing in that case." Blind persons may of course make their wills, but such cases will be more conveniently considered hereafter, in connection with the subject of the " form and manner of making a will."(J) In respect to the age requisite to the valid execution of a will, it was formerly the weight of opinion, that an infant, if a male, of the age of fourteen, and if a female, of the age of twelve, might make a testament of chattels ;(c) but now, as has been seen, the party, if a male, must have attained the age of eighteen, and if a female, the age of sixteen, (w) Bleecker v. lA/nch, 1 Bradf. Suit. Bep. 466. (a) Mountain t. Bennett, 1 Cox, 356. (y) Barwood v. Baker, 3 Moo. P. C. C. 282, 290. (z) Burger v. Hill, 1 Bradf. Surr. Rep. 860. (a) Part 2, sec. '6 ; "Wms. on Exrs. 36. (6) Post. (c) 2 Black's Comm. 497 ; 3 R. S. (2d ed.) Appendix, 629. 54 PERSONS DISABLED FROM MAKING A "WILL, ETC. before he or she is competent to the due execution of a will. An in- fant never could, and cannot now, make a valid devise ; and the Ee- vised Statutes specially exclude the exercise of a power by a married woman during her infancy.((i) It may not be quite superfluous to re- mark in this place, with reference to the disability of infancy, that in computing the age of a person, for testamentary or other purposes, the day of his birth is included ; thus, if he were born on the I6th Januaiy^ 1800, he would have attained his majority on the 15th January, 1821 ;(e) and as the law does not recognize fractions of a day, the age would be attained at the first instant of the latter day.(/) Persons Disabled from making a Will for want of Liberty or Free Will. Prisoners, captives and the like are included in this class, but the law does not make such persons absolutely intestable ; but only leaves it to the discretion of the court to judge, upon the consideration of their particular circumstances of duress, whether or no such person could be supposed to have free will and liberty in the making of his will.(5') Any will, the making of which has been induced by threats, or through fear, restraint, fraud, deceit, undue influence, or importunity, may be set aside ; but these cases, as well as all cases generally, under the present head, will properly be considered more fully hereafter, (/i) in con- nection with the subject of the proof requisite to the establishment of a will. Formerly married women were incompetent to make a will, and came within the causes of disability now under consideration. A wife could not devise her lands by will, for she was, as she is by the above quoted section 1, excepted out of the statute. Yet where an estate was limited to uses, and a power was given to &feme covert before marriage to declare those uses, such limitations of uses might take effect; and though a married woman could not be said strictly to make a will, yet she might, as she still may, devise, by way of execution of a power, which is rather an appointment than a will, or a writing in nature of a will ; and whoever takes under the same, takes by virtue of the execu- tion of the power, and by the power coupled with the writing, and as if the limitation in that writing of appointment had been contained in the deed creating the power, for he takes from the author of the power.(t) (d) i Kent's Comm. 506. (e) Herbert v. Torbatt, 1 Sid. 142 ; S. C, Raym. 84. (/) 1 Jarman on Wills. (ff) 2 Black's Comm. 491. (h) Post. (») 2 Black's. Comm. 498; 2 Kent's Comm. 170, 111; 1 Stephens' Comm. (Am. ed.) 550; Southby V. Stonehouse, 2 Tesey, 611 ; Strmg v. WUMn, 1 Barb. Ch. Rep. 13, 14; American Some Missionary Society v. Wadhams, 10 Barb. Sup. Ct. Reps. 591. The Statute of Powers, art. 3, title 2, ch. 1, part 2, of the Revised Statutes, (1 E. S. '?31 ; 4th ed. Vol U, 141,) prescribes the requisites and formalities necessary, as well to the crear tion of a power as to the due execution of a will made under the same. By the '74th section of the statute, ^l R. S. 132,) a power is defined to be an authority to do some act in relation to lands, or the creation of estates therein, or of charges thereon, which the owner granting or reserving such power might himself lawfully perform. By sec. SO, a general and beneficial power may be given to a married woman, to dispose, PERSONS DISABLED PROM MAKING A WILL, ETC. 55 "Wifh respect to personal property, previous to the Eevised Statutes, a married woman was incapable of making a testament of such prop- erty, without the consent of her husband. For, it was said, all her during her marriage, and without the concurrence of her husband, of lands conveyed or de- vised to her in fee. By sec. 81, a special and beneficial power may be granted to a married woman to dispose ■during the marriage, and without the concurrence of her husband, of any estate less than a fee belonging to her, in the lands to which the power relates. , By sec. 106. A power may be granted: 1. By a suitable claaise contained in a convey- ance of some estate in the lands, to winch the power relates ; 2. By a devise contained in a last will and testament. By sec. 109, a power may be vested in any person capable in law of holding, but cannot be exercised by any person not capableof aliening lands, except in the single case mentioned in the next section. By sec. 110, a married woman may execute a power during her marriage, by grant or de- vise, as may be authorized by the power, without the concurrence of her husband, unless by the terms of the power, its execution by her during marriage is expressly or impliedly prohibited. By sec. Ill, no power vested in a married woman, during her infancy, can be exercised by her, until she attains her fuU age. By sec. 115, where a power to dispose of lands is confined to a disposition by devise or wiU, the instrument of execution must be a will duly executed, according to the provisions of the sixth chapter of the act. By sec. 130. When a married woman, entitled to an estate in fee, shall be authorized by a power, to dispose of such estate during her marriage, she may, by virtue of such power, •create any estate, which she might create if unmarried. See Jackson v. Edwards, 1 Paige, 386 ; S. C, on appeal, 22 Wend. 498 ; Prazer v. Western, 1 Barb. Oh. Rep. 220, 240. These provisions of the statute have special reference to real estate. The principle and equity of the statute would doubtless extend, however, to enable a married woman who had personal estate conveyed or bequeathed to her separate use, with an express power to dispose of it by wUl at her death, to make a will or an instrument in the nature of a will, for the purpose of appointing or disposing of her separate estate in pursuance of such power. See Strong v. Wilkin, 1 Barb. Ch. Rep. 9; MoeJiarimg v. Mitchell, Id. 212; American Home Missionary So- ciety V. Wadhams, 10 Barb. Sup. Ct. Rep. 597 ; Van Wert v. Benedict, 1 Bradf Surr. Rep. 114. A wUl made under a power must be executed with the same formalities, and be proved in the same manner as a proper will. "Formerly," it is said in a work of high character, " the Ecclesiastical Courts did not take upon themselves to enter with any great minuteness into the construction of the powers under which wUls of this kind were executed, or as to the due compliance with their conditions. 1 Phillim. 353 ; Bramhallv. Burchell, 3 Add. 264; Draper v. Hitch, 1 Hagg. 675. But according to the modern practice, until the decision of the case of Vincent v. Ba/rnes, (hereafter mentioned,) the Court of Probate considered itself bound to decide in the first instance, not only whether there was a power authorizing the testamentary act, but also whether the power had been duly executed, before it gave the instrument the sanction of its seal Allen v. Bradshqw, 1 Curt. 110, 121 ; In the Goods of Biggar, 2 Curt. 336. Yet, if the court felt any real doubt on the point, it was always deemed the safer course to admit the paper to probate : inasmuch as the production of such a pro- bate will not ^one be sufficient to induce a court of equity to act upon it ; for, with respect to other special circumstances which may be required to give the instrument effect as a valid appointment, viz., attestation, sealing, &c., the temporal courts have never been contented with the judgment of the spiriteal court Rich v. GockeU, 9 Ves. 376 ; 2 Roper on Husband .and Wife, 189; and see Douglas v. Cooper, 3 M. & K. 378. Whilst on the other hand, if the Court of Probate should reject the paper, its decision would be final ; as the court of con- struction will not proceed to the consideration of the effect of any testamentary paper, till it has been proved in the proper Ecclesiastical Court. 1 Curt. 121, 122 : In the Goods of Big- gar, 2 Curt. 336. See Wms. on Exrs, part 1, book 4, oh. 3, sec. 9 ; but see, also, Goldsworthy V. Crossley, 4 Hare, 140, 145.) But ai last, continues the work referred to, in the case of Barnes v. Vincent, 4 Notes of Cas. Suppl. 21, it was held by the judicial committee of the privy council, (reversing the decision of the Prerogative Court of Canterbury,) that the proper course for the Ecclesiastical Court is to grant probate wheresoever the paper professes to be made and executed under a power, and is made by one whose capacity and testamentary intention are clear, and no other objection occurs save those connected with the power, (for example, no objection on the provisions of the wiUs act,) and to leave the court, which has to deal with the rights under that instrument, to decide whether or not it is authorized by 56 PERSONS DISABLED FROM MAKING A WILL, ETC. personal chattels are absolutely his ; and he may dispose of her chattels real, or shall have them to himself if he survives her; it would be, therefore, extremely inconsistent to give her a power of defeating that that power and by its execution." Their lordships, it is added, appear further to have been of opinion, that, on a power being alleged, the IScolesiastical Courts should grant probate, without going into any question as to the existence of the power. The decision in this case, it is further said, was declared by their lordships to be a restoration of " the ancient and laudable practice" of the Ecclesiastical Court. WiUiams on Executors, 48, 49, 60. Accordingly, and chiefly upon the authority of Barnes v. Vincent,, it was held by the surro- gate of the county of New York, in Van Wert v. Benedict, 1 Bradf. Surr. Rep. 114, that on the proof of a will made under a power, the Probate Court has nothing to do with the ques- tion, whether the power is well executed, or whether it authorizes the will or in fact exists at all : and that it is not necessary for the Probate Court to have before it the instrument containing the alleged power ; but if the testamentary paper be properly proved, the probate is limited, the decree declaring the instrument to be duly proved as a valid wUl, so far as it may be authorized by a vahd power for that purpose, — thus leaving the question of its being a due execution of a power, for the determination of a court of construction. See also In the Matter of_ the will of Sarah Stewart, 11 Paige, 398. The doctrine of Barnes v. Viment, has, however, been held in the Prerogative Court, not to be applicable to wiUs made under a power executed since the statute 1 Victoria,, chap. 26, which took effect 1 Jaaiuary, 1838, and upon grounds and reasoning which would seem to be entitled to great consideration in the case of a will made pursuant to a power under the Revised Statutes. The case of Esie v. Bste, (in the Prerogative Court, January 25 and February 11, 1851, 15 Jur. 159 ; 1 Eng. L. & Bq. Rep. 629 ; 2 Robert, 351,) in which this conclusion was arrived at, arose upon an objection to an allegation propounding the will of a mamed woman, deceased, merely reciting that she made the wUl under and by virtue of cer- tain powers and authorities vested in her by a certain deed of settlement dated &c., taut not pleading or annexing the deed. The objection to the allegation was that it did not plead the deed, and Sir Herbert Jeuner Fust, in his judgment upon the case, examines and reasons upon the decision in Ba/rnes v. Vincent, as follows : "With respect to that case, it may be observed, that both the power and the wiU there considered were previous to the year 1838, the wiE itself being made in 1836 ; and it is clear, when you come to look at the words of that judgment, that great part of tbe argument turned upon the anomalous state of the law with reference to the granting probate of wills of married women ; that the sentence granting probate would be inconclusive one way, whilst the sentence refusing probate would be conclusive the other way, since, if probate were refused, the courts of equity never would know of the will at all. And it was said that there was a considerable class of eases in which equity would reUeve against a defective execution of a power, as in favor of a purchaser, or creditor, or child; but if probate should have been refused by the Ecclesiastical Court, on the grounds of the execution being defec- tive, no such relief ever could be extended in any case ; because the court, which alone could relieve, never could know if the instrument existed, nor could see the defect in the execu- tion; and the Court of Probate was bound by the fact of a defective execution, and could not remedy it. But the present Statute of WOIs gets rid of the formalities which might be im- posed upon the execution of wills by married women. The 8th, 9th and 10th sections pro- vide for and describe the manner and form of execution which will be necessary in all cases to give effect to the wUls of married women executed since the statute came into operation. There are certainly some of the expressions in Barnes v. Virxmt, which I have referred to, that would tend to show that this court has no right to look at the power; but I think those expressions must be taten with respect to the state of the law before the present statute, for no court of equity could now relieve against a defective execution, since the legislature has imposed certain forms which are absolutely necessary and cannot be supplied, to give effect to the wUl; so that all argument derived from the power which the courts of equity had before the statute, is now done away with. I am afraid the remedy suggested by the learned lord, if this court were, in all those cases where a, power is alleged, to grant probate without caUing for the power, would be very inadequate. But suppose tlie will to be contested on the ground of coercion, or undue ipfluence or incapacity, how is this court to know who have a right to contest the wiU ; in other words, who are interested in an intestacy, unless it has an opportunity of looking at the power? It is only by an inspection of the deed that this court can ascertain the rights of the parties ; and therefore, upon the general principle, I am of opinion that this settlement must be produced, and that the court is entitled to look at the deed, that it may see who are the persons having a right to oppose probate, as inter- ested in an intestacy, and to whom the property would go if the will were pronounceii against." PERSONS DISABLED FROM MAKING A WILL, ETC. 57 provision of the law, by bequeathing those chattels to another. Yet by her husband's license she might make a testament; but such license was more properly his assent ; for, unless it was given to the particular will in question, it would not be a complete testament, even though the husband beforehand had given her permission to make a will.(,/) Under the Eevised Statutes, a married woman was prohibited from making a will of personal property in any case, even with the assent or license of her husband, for the statute declared, as it still declares, as has been seen, that every male person of eighteen years of age, and every female, not being a married woman, of the age of sixteen, and no others, may make a will of personal estate.(^) But now by statute, married women are not under any disability in respect to the making of wills, whether of real or personal estate. The act " for the more effectual protection of the property of married wo- men," passed April 7th, 184:8,(f) as amended by the act of April 11th, 1849,(m) provides as follows : Sec. 3. Any married female may take by inheritance or by gift, grant, devise or bequest, from any person other than her husband, and hold to her sole and separate use, and convey and devise real and per- sonal property, and any interest or estate therein, and the rents, issues and profits thereof in the same manner and with like effect as if she were unmarried, and the same shall not be subject to the disposal of her husband, nor be liable for his debts.(n) This act substantially repeals the restrictions contained in the above sections of the Eevised Statutes, against the validity of a will by a mar- ried woman in regard to real and personal estate. And by the act, mar- ried women are competent to devise and bequeath real and personal This judgment puts the necessity for a production of the power, upon the ground of ascer- taining who are entitled to contest the will ; but if the court once examine the power for any purpose, it can hardly avoid at least passing upon the question, whether the power gave the decedent the authority to make the will at aU. The 8th section of the Statute of Victoria, referred to in this judgment, provides that no will made by any married woman shall be valid, except such a will as might have been made by a married woman, before the passmg of the act. The 9th section prescribes the manner and form of executing wills, and the 10th section, provides that no appointment made by wiU, in exercise of any power shall be vaUd, unless the same be executed in man- ner thereinbefore required ; and every wiU executed in manner thereinbefore required, shall, so far as respects the execution and attestation thereof be a valid execution of a power of appointment by will, notwithstanding it shall have been expressly required, that a wUl made in exercise of such power, should be executed with some additional, or other form of execution or solemnity. The statute, article third, title 1, chap. 6, part 2, of the Revised Statutes, sec. 40, (2 R. S. 63 ; 4th ed. 246,) provides that every last wiU and testament, of real or personal property, or both, shall be executed and attested in the maimer therem pre- scribed, and by the above quoted provision of the Statute of Powers, sec. 115, a will of lands under a power must be executed in conformity with this section. These provisions at any rate, so far as respects real estate, are substantially the same as those of the English statute, and the same principles and rules oJ practice might well be held applicable to both statutes. See In the Matter ofprovmg will of Jennings, 10 Legal Observer, 253. A wUl in execution of a power, is ambulatory and revo®,ble, in the same manner as a proper will. 1 Bradf Surr. Rep. 114. (;') 2 Black. Comm. 498. \k) Moehring v. Mitchell, 1 Barb. Ch. Rep. 264; 4 Kent's Oomm. (Tth ed.) 506, lb. note; but see Ileyer v. Burger, 1 Hoff. Ch. Rep. 1. (i) S. L. 1848, 307. (m) S. L. 1849, 528. («) 2 R. S. (4th ed.) 331. 58 FORM AND MANNER OP MAKING A WILL. property in the same manner and witli the like effect as if they were unmarried. The act removes a personal disability and the power given to devise, probably is not limited to subsequently acquired property. If it be, however, where the capacity exists to make a will, when the will of a. feme covert made subsequently to the passage of the act is properly proved, it is the duty of the Surrogate's Court to admit it to probate, leaving it to the proper tribunals to determine, as occasion may arise, what property passes by it.(o) In or can the operation or effect of the will, on the estate or rights of the husband in the property of the wife, be considered on the probate. The power to make a will relates to the personal capacity, and the pro- bate ; the right to dispose of any particular property relates to the effect of the instrument when proved, and its construction. On proo^ therefore, of the due execution of the will of a married woman, de- ceased, the surrogate is bound to admit the will to probate, leaving the question of what passes under the instrument for future construction.(p) Of the Form and Manner of making a Will. Before the Ee vised Statutes, no solemnities of any kind were neces- sary to the making of a will of personal estate. The second section of the act " concerning wills, "(g) which required the formalities of signa,' ture and attestation for a devise of lands, did not extend to wills of personal property. The nineteenth section provided that every person might by will, in writing, give or bequeath his personal estate in the same manner as if the. act had not been passed ; and the fourteenth section made it necessary that wills of personal estate should, generally speaking, be reduced into writing in the testator's lifetime ; inasmuch as it was thereby enacted, that no nuncupative will (where the estate thereby bequeathed should exceed the value of seventy-five dollars) should be good unless under the particular circumstances therein spe- cified. But no other formality whatever was necessary to give them effect and operation. Whence it often happened that a wUl, intending to dispose of both real and personal estate, was inoperative as to the former, and at the same time a perfect disposition of the latter. The act " concerning wills" was repealed from and after the thirty- first day of December, 1829,(r-) and the Revised Statutes, which took effect on the first day of January, 1830, contain enactments, the result of which is that the solemnities prescribed bj^ them, are required to render valid any will or other testamentary disposition of every de- scription of property without distinction ; so that the same formalities of execution, publication and attestation, are necessary, whether the instrument disposes of real or of personail estate. These enactments are contained in the first title of the sixth chapter of the second part of the^file vised Statutes, and are as follows : (o) Van Wert v. SmeiUct, 1 Bradf. Surr. Rep. 116. (p) Waters v. GuUen, 2 Bradf. Surr. Rep. 354. (q) 1 R. L. 1813, 364. (r) See act " to repeal certain acts and parts of acta," passed December 10th, 1828. S. L. 1828; 3B. S. (3d ed.) 161. FOBM AND MANNER OP MAKING A WILL. 59 Sec. 33. [Sec. 40.] Every last will and testament [or codicil],(s) of real or personal property, or both, shall be executed and attested in the following manner : 1. It shall be subscribed by the testator at the end of the will ; 2. Such subscription shall be made by the testator, in the presence of each of the attesting witnesses, or shall be acknowledged by him to have been so made, to each of the attesting witnesses ; 3. The testator, at the time of making such subscriptions, or at the time of acknowledging the same, shall declare the instrument so sub- scribed to be his last will and testament; 4. There shall be at least two attesting witnesses, each of whom shall sign his name as a witness, at the end of the will, at the request of the testator. (<) Sec. 34. [Sec. 41.] The witnesses to any will shall write opposite to their names their respective places of residence ; and every person who shall sign the testator's name to any will by his direction, shall write his own name as a witness to the will. Whoever shall neglect to comply with either of these provisions, shall forfeit fifty dollars, to be recovered by any person interested in the property devised or be- queathed, who will sue for the same. Such omission shall not affect the validity of any will ; nor shall any person liable to the penalty aforesaid be excused or incapacitated on that account, from testifying respecting the execution of such will.(M) Sec. 19. [Sec. 22.] No nuncupative or unwritten will, bequeath- ing personal estate, shall be valid, unless made by a soldier while in actual military service, or by a mariner, while at sea.(i;) Sec. 91. [Sec. 70.] The provisions of this title shall not be construed to impair the validity of the execution of any will made before this chapter shall take effect, or to affect the construction of -any such will.(w;) The formalities required for the valid execution of a will made be- fore the Eevised Statutes took effect, do not any longer form a practi- cal subject for consideration. Within the period of twenty -three years, which has elapsed since that event, every will executed previously has in all human probability been disposed of The few recent cases which have arisen on such wills would not justify any extended examination of the rules of law which prevailed under the former system.(a;) In this work, therefore, the principles of the old law will be considered, if at all, only incidentally and by way of explanation or illustration of the plan introduced by the Eevised Statutes. It may properly be noted, however, that in a recent case, where the testator died since the Eevised Statutes, and his will executed pre- viously to the Eevised Statutes was offered for proof as a will of both (s) Sec. 92. [Sec. 11.] The term " will," as used in thfe^chapter, shall iaclude all codi- cils, as well as willa. (ri) 2 R. S. 63 ; 4th ed. 246. (u) Id. («) 2 B. a 60; 4th ed. 243. hv) 2 R. S. 68, 4th Ed. 254. (x) See Jauncey v. Thome, 2 Barb. Ch. Bep. 40 ; Lawrence v. Eebcurd, 1 Bradf. Surr. Rep. 252 ; Sherry v. Xojiier, Id. 43t. 60 FORM AND MANNER OP STAKING A -WILL. real and personal estate, and was attested by two witnesses only, and therefore defective in respect to real estate according to the old law, which required three witnesses to adeviseof lands, (y) it was considered in view of the above section 91, [sec. 70,] providing that the validity of wills already executed should not be impaired by the new provisions of the Revised Statutes, that the law stopped at that point, thus leaving to wills executed before, the benefit of the change, so that if bad by the law existing at the time of their execution, they might be cured and become valid by the law existing at the time of the death of the testa- tor. That if the testator had died previous to the Revised Statutes, the case would of course have been otherwise ; but that his decease subse- quent to the new law going into effect, attached the benefit thereof to his will, and aided though it might not impair the validity of its exe- cution. It was held, therefore, althsugh this will was attested by only two witnesses instead of three as required by law at the time of its exe- cution, in order to pass real estate, that still by the decease of the tes- tator after the Revised Statutes took effect, the defect was cured, and that the will had been properly admitted and recorded as a valid will of real estate.(2) The above sec. 33, [sec. 40,] comprises all the directions which are necessary to be observed in the due execution of a will. The require- ments of this statute are not merely cumulative to any previous law or statute, but are of themselves entirely sufiicient for the valid execution of a will, and all former statutory provisions are inapplicable ; in fact, there is not any law, prescribing the mode in which wills may be made, now in force other than the Revised Statutes. Wills executed previously to their enactment, according to the law as it then stood, as has been seen, are expressly saved; but in every other case, the Revised Statutes are now the sole and exclusive guide as to all formalities in the execu- tion of wills, required to be made in conformity to the laws of this state.(a) The statute is in its terms perfectly explicit. Four distinct ingredients, as declared, must enter into and together constitute one entire com- plete substance, essential to the complete execution of the instrument as a will: 1. There must be a signing by the testator at the end of the will ; 2. The signing must take place in the presence of each of the witnesses, or be acknowledged to have been made in their presence ; 8. The testator at the time of signing or acknowledging the writing, shall declare it to be his last will ; and 4. There must be two witnesses. Every one of these four requisites in contemplation of the statute, is to be regarded as essential as another. There must be a concurrence ot all to give validity to the act, and the omission of either is fatal. A wiU cannot be made ij silence ; there must be a distinct affirmative per- formance of all the statutory requisites. (5) The four facts specified in the section must exist, am^ those acts therein directed be fully and com- (y) See "act coneermng -wtIIs," sec. 2; 1 R. L. 1813, 364. (2) Lawrence v. Heba/rd, 1 Bradf. Surr. Rep. 254. (a) Buddon v. McDonald, 1 Bradf. Surr. Rep. 352 ; Lyon v. Smith, 11 Bar. Sup. Ct. Eep. 124. At variance with a dictum of Mr. Justice Hand in Bviter v. Benson, 1 Barb. Sup. Ct. Eep. 530. (6) Ex parte Beers, 2 Bradf Surr. Eep. 163, 166. FORM AJJTD MANNER OP MAKING A WILL. 61 pletely performed. The statute is peremptory, and no evasion or omis- sion can be excused or tolerated.(c) While the courts, however, have, with commendable firmness, insist- ed upon a rigid compliance with the formula prescribed by the statute, they have never held that a literal compliance was necessary. A sub- stantial compliance is enough. The only sure guide is to look at the substance, sense and object of the law, and with the aid of these lights endeavor to ascertain whether there has been a substantial compliance. No particular form of words is required to comply with the statute ; if the testator knows what is necessary and does it, he may use his own language. But the statute must be substantially complied with re- gardless of consequences.(cZ) On the one hand, nothing can be more contrary to the duty of a court of justice, than to impair the force of a legislative enactment by a latitudinarian construction ; on the other it would be equally against the intention of the legislature, by too rigid an interpretation of the words of the statute, to render void wills when the requisites of the statute have been substantially complied with, and when those wills do not contain any of those faults or defects, which it must have been the intention of the legislature, should for some reasons render them inope- rative. In a state like this, where the power of testation exists to so wide an extent, all forms must be intended to protect the right so ex- isting, and to secure the genuineness and authenticity of all testament- ary instruments, and not to restrict the right of testation ; and if wills lona fide made by testators are defeated from want of observing the solemnities required, such an occurrence is an evil in itself, but an evil to be submitted to, because, according to the judgment of the legisla- ture, such sacrifice is conducive to the general safety and well doing of the right of testation.(e) The question in every case on the execution of a will, is not whether the testator has become entitled to devise, by full compliance with the letter of the law ; but whether there has been such a neglect of the legal requirements enacted to guard against fraud, as to make the will inoperative as an evidence of intention, and con- sequently to leave the property to be governed by the general laws of descent or distribution. (/) Neither of the four acts, which, united, make a valid execution of a will, may be done at a different time from the rest. If the instrument has in fact been signed at a previous time, then the signature must be acknowledged to the subscribing witnesses, which is deemed to be equivalent to a new signing of the instrument. But a will is duly executed when the several acts required by the statute have been per- formed at the same time, whatever the order in which such acts may (c) Remseny. BrincIcerJiqff, 26 "Wend. 331, per Nelson, Ch. J.; WTiiibecJc v. Patterson, 10 Barb. Sup. Ct. Eep. 610, per Taylor, J. ^ (d) Seguine v. Seguine, 2 Barb. Sup. Ct. Eep. 393, per Wdmonda, J. ; Butler T. Benson, 1 Barb. Sup. Ct. Rep. 534, per Hand, J. ; Nelson v. McGifferrt, 3 Barb. Chan. Rep. 163 ; Bevisen V. Brinckerhoff, 26 Wend. 332, per Nelson, Ch. J. ; Lewis against Lewis, 1 Kernan, 220, 224. (e) Substantially, per Dr. Lushington, In ihe Goods of Smith, and In the Goods of Cooper, 16 Jur. 178. {/) Per Verplanok, Senator, Bemsen v. Brinckerhoff, 26 Wend. 335. 62 SUESCEIPTION OF THE WILL BY THE TBSTATOE. be severally performed. (5') The subscription of tbe will by the testa- tor, his publication of it, his request to the witnesses, and their sub- scriptions, are all, however, to be done at the same time, not at the same instant of time, for that is impracticable ; but at the same inter- view, one act immediately following the other without any interval, and without any interruption to the continuous chain of the trans- action.(A) Of the Subscription of the Will hy the Testator. The statute requires that in order to the due execution of a will, it shall be subscribed by the testator at the end of the will. It is not necessary that the testator should be able to write his name, for it has been determined that the signing of a wUl by making a mark is a suffi- cient subscription within the meaning of the act. (i ) The mark, however, it should be understood, is to be made between the given and the sur- name, or otherwise in connection with the name of the testator, written by another person by the direction of the testator. The former statute required that the will should be signed by the testator, or by some other person in his presence and by his express direction. And that the legislature did not intend to alter the law in that respect, is evident from the fact that this mode of subscribing the testator's name by the instrumentality of another person, but by the testator's direction, is re- cognized in the above quoted 41st section of the statute.(y) And where the testator's name is written by another person by his direction, his mark, although a common, would seem to be an unnecessary formality. With reference to the construction to be given to this provision of the statute, it is a sound principle that such a construction ought to be put upon a statute as may best answer the intention which the makers had in view, and that is sometimes to be eolleeted from the cause or necessity of making it, at other times from other circumstances. When- ever the intention can be discovered, it ought to be followed with reason and discretion in its construction, although such construction may seem contrary to its letter.(^) The reason and object of the provisions of the present statute of wills and testaments, and especially of the provision now under con- sideration, would seem to be obvious, especially when compared with the former statutes on that subject, and the course of judicial decisions under them. The act of 1813, " concerning wills," required (sec. 2) that every last will and testament of lands should be in writing, and (g) Soe-y. Roe, 2 Barb. Sup. Ct. Eep. 200, 206 ; See also Keeney v. WUImao-sh, 16 Barb. Sup. Ct. Eep. 141. (A) See Segume v. Segmne, 2 Barb. Sup. Ct. Eep. 385, 395. (i) Stewart's Eoars. \. Uspenard, 26 Wend. 289, per Campbell, Surrogate; "1 Bob. on Wills, 94; Adck/Y. Grieg, 8 Ves. 504;" Chaffee \. Baptist Missionary Convention, 10 Paige, 91. In the Goods of Bryce, 2 fiurt. 325; BuUer v. Bemon, I Barb. Sup. Ct. Eep. 533, per Hand, J. See also Keeney v. Whitma/rsh, 16 lb. 141. {j) See Chaffee v. Baptist Missionary ConvenMon, 10 Paige, 91. The provision of the 41st section alluded to, it should be noted, was originally recommended by the revisers to be adopted io connection with a provision expressly authorizing the testator's name to be signed by another person by his direction. See 3 Eevised and other Statutes, (2d ed.,) Appendix, 62'!, 8 ; also post. >/ rr > (4) Tonjide v. Eali, per Jewett, J., 4 Corns. 144. SUBSCBIPTION OF THE WILL BY THE TESTATOB. 63 signed by the party making the same, or by some other person in his presence and by his express direction, &c. So the English Statute of Frauds required that all devises and bequests of lands should be in writing, and signed by the party so devising the same, or by some other person in his presence, and by his express direction, &c. Questions had arisen under these statutes, as to what the legislature meant by the word " signed," namely, whether it should be construed in its strict sense, and by analogy to other instruments, or v^hether it should be liberally expounded and left open as a question of construction upon intention, to be inferred from the facts and circumstances attending each particular case. The construction had been, as well in the courts of England as here, that the writing of the name of the testator in the body of the will, if written by himself with the intent of giving valid- ity to the will, was a sufficient " signing" within the statute.(Z) It was considered also that the putting of a seal by the testator was a sufficient signing ; for that signinn was no more than a mark, and seal- ing was a sufficient mark that it was his will.(m) But this doctrine was afterwards overruled.(n) Thus the old law stood, and the mischief of it was, that, as it was not necessary for the testator to have adopted the instrument after it was finished, by actually signing the same at the close of the will, it did not denote clearly that he had perfected and completed it. To remedy this evil, and to prevent future controversy as to whether a will signed by the testator in any other part of the instrument than at the end de- noted a complete and perfect instrument, the statute under considera- tion requires that " it shall be subscribed by the testator at the end of the will." And the Statute of Victoria I, ch. 26, passed in 1887, re- quires that the will " shall be signed at the foot or end thereof by the testator, or by some other person in his presence and by his direction ;" and to avoid the misconstruction which had prevailed as to " signing," the words " subscribed at the end of the will," are used in the Kevised Statutes, and the words "signed at the foot or end thereof," are used in the Statute of Victoria. But questions of this kind do not appear to be altogether excluded by the operation of these enactments, and a new ground of contest has arisen out of them, both in this state and in England, as to what may be considered a subscription or signing of the will at the end or foot thereof. In Tonnele v. Hall^ip) the writing of the instrument propounded for probate, commenced on the first of several sheets of paper, stitched to- gether immediately below a margin, in this form: "In the name of God, amen. I, John Tonnele, of the city of New York, being of soxmd mind and memory, and considering the uncertainty of life, do make, publish and declare this to be my last will and testament, in manner {I) "1 Powell on Dev. "74; 1 Jarman on Wills, 70; Lemayn-v. Stanley, 3 Levinz, 1; Hilton V. King, Id. 86 ; Pearson v. Wighlman, 1 Const. Court. Rep. 343 ;" Wms. on Exre. 64. (m) "Lemayn v. Stanley, 3 Lev. 1 _; S. C, 1 Preem. 538." (n) Wms. on Exrs. 64, and cases cited. (o) 4 Comstock, 140 ; from the able and lucid opinion of Mr. Justice Jewett, in which case the above remarks on the construction of the first subdivision of the statute, are for the most part taken. 64 SUBSCRIPTION OF THE WILL BY THE TESTATOR. and form following, tliat is to say" — and was continued .©n that and the four succeeding sheets, (turning over at the bottom of each of the first four sheets,) when it was brought to a close as follows : "In witness whereof, I have hereunto set my hand and seal, the twenty-second day of October, in the year of our Lord one thousand eight hundred and forty-four." At this point the testator subscribed and sealed the in- strument. Following this was an attestation clause, in the usual form of such clauses to wills, which was subscribed by three witnesses. The next sheet was entirely blank, and was succeeded by a sheet on which was written, " Map of the property of John Tonnele in the Ninth and Sixteenth Wards, from surveys and maps made hj Geo. B. Smith and Edw'd Doughty, in 1828 and 1835, by R. Spencer, city surveyor, July 8th, 1842." And also written on the same, "Reduced copy of a map on file in the Register's office in the city of New York, R. S." This map indicated the position by numbers, &c., of various lots of land in the city of New York, owned by the testator, and which the will pur- ported to dispose of, but it was not signed by the testator nor by the witnesses. Between the last mentioned sheet and the envelope there was another blank sheet, and the envelope was stitched to and enclosed the whole. The first clause by which any part of his real estate was devised, occurred in the second folio, whereby "the brick house on the rear of lot number 73, on the map hereinafter mentioned, together, &c., was devised to A. H., to hold during her life." After some other provisions, a devise followed of several other lots of his real estate, which were described as being designated on a certain map now on file in the office of the Register of the city and county of New York, (a copy of which on a reduced scale is hereto annexed,) entitled map of the property of John Tonnele, Esq., &c., as above given. In each subsequent devise by which any other of the lots of land laid down upon the map were disposed of, they were described as being " designated on the said map" by certain numbers mentioned, and no reference was made to the copy of the map annexed. The point taken in opposition to the will was, that the execution of the instrument was not in conformity to the first and fourth requisites of the statute ; because, as was insisted, it was neither subscribed by John Tonnele, nor signed by the witnesses, at the end of it. It was contended, that as the map annexed should be regarded as a component part of the instrument, at the time of its execution, and as it was written on the last sheet of the papers composing the instrument, it was neces- sarily the end of the instrument, where the subscription by the testator and the signing by the witnesses, to constitute it a valid will, should have been made. It was held by the Court of Appeals that the will was subscribed by the testator at the end of , the will, within the meaning and intent of the statute, and that the execution thereof was valid. In the case of the wiU of Catharine Kerr, deceased, before the surro- gate of the county of New York,(^) the closing portion of the will and the signatures were as follows : (y) McGuire v. Kerr, 2 Bradf. Surr. Rep. 244, 254. STTBSORIPTION OF THE "WILL BT THE TESTATOR. 65 " To the children of Mary Dow, residing in Ireland, in county Kil- kenny, Give and bequath two Hundred dollars, to be equally divided between them. If there be a balance, my executors will divided it among my relations that are not herein mentioned, Cathe""" Keeb. Phelan, "I herby appoint Mich'' of 2d st., and John Kelly, of 9th st., as my executors to this my last will testament. " Witnesses, E. Kein, " Mathew M. Smith. pay "I herby order my executors to a all my lawful and debts & funeral expenses' — should it please the Almighty now to call me. This they will do before paying any legacy above mentioned. "Cathe Keer." There was a question as to the mental capacity of the testatrix, and also as to- the genuineness of her alleged subscription, the two witnesses calling her Keer, and the two subscriptions being of that name, her Christian name Catharine being abbreviated, whilst her real name was Kerr, and several previous papers were produced in which her name, proved to have been signed by herself, was invariably written Catha- rine Kerr in full. But the surrogate held that the form of the will was fatally defective, because the will was not subscribed by the testatrix, and signed by the attesting witnesses at the end, in conformity with the requirements of the statute, and as the case arose on allega- tions, revoked and annulled the previous probate.(2') ( j) Numerous cases on this head have arisen in England under the Statute of Victoria. In an early case where the wiU ivas written on two sides of paper, and the testator signed at the bottom of the first side, which signature was attested, and that side ended with an unfinished sentence, and the wiU concluded on the second side " dated this 11th day of AprU, 1838 ;" but there was no signature to that side ; Sir Herbert Jenner Fust refused a motion for probate, on the ground that the deceased had omitted to sign the will at the foot or end. In the Goods of Milward, 1 Curt. 912. So, where a testator had signed his name in the mar- gin of the will, not far from, but not "at the foot," a motion for probate was refused, although it appeared on affidavit that he thought he had obeyed the exigencies of the statute, and had in fact mistaken the directions of a printed paper professing to give oorrrect instructions for making a wiU under the new act. In the Goods of Eyles, Prerog. H. T., 1840 ; See"Wms. on Exrs. 65. In a subsequent case, however, where the wiU. was written on paper folded in the middle, so as to make four pages, and it began on the first page and was continued and concluded on the third ; there was no signature on that page, though there was room there for the name of the testator, but not for. the attestation clause, which was written on the lower part of the second (otherwise blank) page, and underneath it were the signatures of the testator and the witnesses ; Sir H. Jenner Fust admitted the will to probate, being of opinion that the signature was at the "end," though not at the "foot." In the Goods of Baker, 3 Notes of Gas. 162 ; See Wms. on Exrs. 65. On the same principle, in a case where the will was written from instructions given by the testatrix, all at one time as far as and including the iestimonmm clause, but, before the execution, she directed another clause to be added, part of which ran below that clause and below the sigijatures of herself and of the witnesses, leaving no room for anything else, the same judge admitted the vriU to probate. In the Goods of Powell, 4 Notes of Gas.. 391 ; See Wms. on Exrs. 66. In a case where, on the face of the will, the clause appoiating the executors appeared to have been written after the signature of the testator, although the proof was that that clause was written by direction of the testator, and previously to his signing the paper, and that he signed his name the last thing. Sir H. Jenner Fust refused probate to the executors, on the ground that if the appointment of the executors was part of the will, the testator had not complied with the act by signing it "at the foot or end thereof" administration with the will 5 66 SUBSCEIPTION OF THE WILL BY THE TESTATOR. A signature of the testator's name to the will by his direction, may well be made by a person who is one of the two attesting witnesses to the will. The statute is peremptory, that the person signing the tes- annexed, omitting the clause appointing the executors, was, however, afterwards granted. In the Goods of Howell, 2 Curt. 342 ; See also In the Goods of Davies, 3 Curt.. 148 ; In the Goods of Jones, 4 Notes of Cas. 532 ; Wms. on Exrs, 66. So if the signature is at the end of the dispositive part of the wiU, it has been held to be at the foot or end of the vriU, within the meaning of the act, notwithstanding it precedes a memorandum expressing some expec- tations of the testator as to his property, but not in any way disposing of any part thereof f and probate has been granted excluding therefrom the memorandum, Keating v. Brooks, 4 Notes of Cas. 253, 260 ; See In the Goods of Davies, 3 Cnrt. 748 ; Wms, on Exrs, 67. In other cases questions have arisen by reason of a blank space having been left in the will between the conclusion of it and the signature of the testator. In the earlier cases on this subject. Sir H. Jenner Fust put a very Uberal construction on this part of the act. Thus a case oeeurred {In the Goods of Carver, 3 Curt^ 29) in which the will was written on a printed form, and ended on the first sheet of the paper, where there was not room for the testator's signature and that of the witnesses, and the testator, instead of signing his name at the top of the next page, wrote it at the end of the printed form, where the testator's signature was directed to be made by the instructions in the margin of the paper ; and probate of the will was allowed to pass. In another case, {In the Goods of Gore, 3 Curt, 758,) the body or dispositive part of a will was written on and occupied the entire first side of a sheet of paper. The second side of the sheet was left in blank. On the third side was a full attestation clause, and at the foot or end thereof, were the signature of the testator and the subscriptions of two witnesses. Sir H. Jenner Fust allowed pro- bate to pass. This judgment, it would appear, was in some degree founded upon the circumstance, that the whx)le of the deceased's property was disposed of by the wiU, and con- sequently there was not any reason to apprehend that the deceased intended to make any further bequest But in latter oases, the same learned judge, with the eoneurrenee of the judicial committee of the privy council, felt it necessary to take a more rigid view of the en- actment in question, on the ground that it wa^ intended to prevent any addition being made to the will after the deceased had executed it In the presence of witnesses ; and it seems to be now established, that notwithstandmg the will contains a complete disposition of the property, and an appointment of an exeeutor, yet, if there is an unnecessary and unreasonable blank space left between the conclusion of the will and the signature of the testator, the wfll is iU executed, even though it be manifest that he had no intention to evade the law, or to do anything more to the will after execution, but, on the contrary, was anxious to comply with the requisites of the statute. Willis v. Lowe, 5 Notes of Cas. 428 ; Same v, Bryer, 6 Notes of Cases, 20 ; 13 Jur. 289. Affirmed in the privy council, 6 Moo. P. C. 404. See Wms. on Exrs. 68 ; In the Goods of Shadwell, 2 Kobert, 14..[*2 This conclusion has been mainly founded on the judgment of the judicial committee of the privy council, in the case of Smee v. Bryer, (6 Moo. P. C. 404.) In that case, the wiU of the testatrix, Mary Bateman, was written on three sides of a sheet of foolscap paper. At the foot or end of the third and last side of the' wiU, there was a space sufficient to have received the signature of the testatrix, and also the signatures of the two witnesses, if not accompa- nied by an attestation clause, formally expressed. But neither the testatrix nor the wit- nesses signed on the third side of the wiH, immediately at the foot or end thereof; her sig- nature was about half way down the fourth side of the sheet of paper, no part of the will being immediately above it; and with the signature about the middle of the fourth side, was an attestation clause, formally expressed, and signed by two witnesses. The vacancy above the signature on the fourth side, was occupied only by two signatures of witnesses, attesting an interlineation. And it was determined by the judicial committee of the privy council, that the will was not signed at the foot or end. [*] In the case of TJie Goods of WliMle, 2 Robert, 122-8, Sir H. Jenner Fust remarks, " tJnfortnnately, eases inyolving the question whether the will is ' signed at the foot or end thereof multiply apace. I cott- fess I know not what to do with them. ***** The solution offered by Mr. Justice Williams^ in the last edition of his work on executors, does not afford much assistance for what is a ' reasonable' or 'an um- reasonable space ?' " There are cases involving this question in 2 Robertson's Ecclesiastical Reports, pp. 1)2, 114, 116, 122, 124, 126, 139, 140, 178, 1T9, 180, 182, 189, 194, 196, 197, 199. See, also, Jermyn v. Bemeti, 15 Jur. 184 ; I Bng. L. 4 Eq. Rep. 688. In Th& Goods of Anderson, 15 Jur. 92 ; 1 Eng. h. 4 Eq. 684, a note to these cases, containing an able examination of the previous decisions, concludes as follows : "The result, therefore, would appear to be, that where the testator'has placed his name below the dispo- sitive part of the will, and on the same side, the signature will, generally speaking, be well placed. The same rule will apply where he has signed below, and on the same side with the testmnonmm clause. And, lastly, that where the signature is below the attestation clause, but noj; on the same side with the conclu- sion of the dispositive part of the will or tedtimonmm clause, the will is not duly signed, unless the attesta- tion clause follow the conclusion of the dispositive part or testimonium clause immediately, and wtthout eaving a space for the sighatuve of the testator." StTBORIPTION OF THE "WILL BT THE TESTATOR, 67 tator's name shall write his own name as a witness to the will ; but there is not anything in it which requires that there shall be more than one other witness. The general rule applicable to the provision in question, so far as one can be ascertained, is admirably considered in the sensible and just remarks of Dr. Lushington, setting for Sir Herbert Jenner Fust, on pronouncing judgment in the two recent cases decided together, of " The Goods of Smith" and " The Goods of Cooper," 16 Jur. 118. " In construing an act of Parliament," says that eminent jurist, " it is most desirable, where practicable, to ascertain the reasons which induced Parliament to pass such an enactment, and where that can be done without a violent construction, to give such a meaning as the legislature intended, in consequence of the reasons on which the act passed. Where no rea- son can be ascertained, of course the words must be followed according to their most plain and obvious meaning. In the judgment I am about to pronounce upon these two papers, I wish it to be most distinctly understood, that I have not the remotest intention of departing from any decision of the judicial committee, or of this court. I am bound to follow the one, and I should indeed be sorry, occupying this chair temporarily, to depart from the opinions of the other. If, therefore, in pronouncing the present decision, I should be considered by any so to depart from prior decisions, I beg leave to declare that if I do so, it is an involun- tary error, and not the result of intention. Two reasons alone have been assigned for this enactment ; that the will shall be signed at the foot or end thereof by the testator, or some other person in his presence, and by his direction. One is, that a signature anywhere might not be deemed a signature within the meaning of the act ; a very wise provision, consider- ing how greviously the Statute of Eraiuds was, at one time, misconstrued in that respect ; I mean that the heading, "I, John Thomas," at the beginning, was regarded as equivalent to signing ; and considering that no signature, save at the end, could attest what was the con- clusion of the instrument. The other reason, if I may conjecture, is to prevent additions to instruments, made even by the testator himself, after execution; a very good reason, but an inefficient enactment to answer the object, because we all know that there is nothing to prevent blanks being left in the body of the wUl, which may, if the testator choose to run the risk, be fiUed up at any subsequent period. But though the enactment in itself may not be sufficient for all pm'poses intended to be effected, and though it may be imperfect, still I apprehend it should i^ot be shorn of its full effect, so far as it does extend to remedy any mischief of subsequent insertion. And, therefore, wherever a blank is left before the signa- ture, which would manifestly be calculated for the reception of further bequests, that signa- ture is a signature within the mischief against which the statute provided, and the wUl, I am inclined to think, is not entitled to probate. The intention of the testator cannot be a sub- ject of inquiry, dehors the instrument itself We can only look at the instrument itself, to understand what the testator meant, intended, or might have done. If the act produces the evil, the words of the statute must be adhered to. I am well aware of the extreme difficulty of finding and acting up to a principle in cases like these ; but surely, so far as is practicable, we ought to endeavor so to do. If I am not prohibited by prior decisions, it appears to me to follow from this train of reasoning, that I am not to refuse probate to a paper, merely because there was a possibility of the testator affixing his signature on the side where the dispositive part concluded ; for, if this was the rule, where was there ever a will so closely written to the conclusion of the side of the paper, that a signature might nt)t be inserted ? Again ; suppose the attestation clause to fijUow on the same side, and the testator to sign against the middle of the attestation clause, and yet far below the dispositive part of the paper, no one doubts the validity of this execution. But why should this be a more vaUd execution than a signature written opposite to the attestation clause on the other side of the paper, where ao interval of any extent is left on the preceding side ? ' What reasoa is there for this ? What principle to support the distinction ? Is there not as much room for fraud in the one case, as there is in the other ? Surely, if I may be aUowed to say it, we have not dealt fairly altogether by this act ; we have introduced too much refinement, and too much teclinicality. We have busied ourselves with discussions as to the dispositive part, and the iesUmonmm clause, and the attestation dause, and forgotten that this was a statute made for every day use, for the whole people of England, literate and ilUterate, learned and unlearned, for wills made, not merely in the enjoyment offuU health and strength, and T^igor of body and mind, but wUls made under circumstances the most opposite — wills made on death beds. This is an act to remedy admitted evils, and it ought not to be converted into an act, the better to secure intestacy. Then what is the principle, if I may venture so- to designate it, that I should be inclined to apply if left to the exercise of my ovra. judgment, to the interpretation of this act ? It is a common sense meaning ; a meaning intelligible to the great mass of the community ; not a construction ehcited by ingenious refinement, or founded on reasoning from technicalitiea, which the people cannot comprehend. I desiderate a construction which 68 SUBSCRIPTION OF THE WILL BY THE TESTATOR. It would seem from tlie express words of the statute, that it would not be sufficient if the party signing for the testator should sign his own name, and not that of the testator. The only case in which a sub- scription otherwise than by the testator is recognized, is where a person shall sign the testator's name to the will by his direction.(r) (r) Under the English statutes, 1 Vict. ch. 26, sec. 9, which requires that the will shall be signed at the foot or end thereof by the testator, it is sufficient, it seems, if the testator write his initials to the vnil. In the Goods of Savory, 15 Jur. 1042 ; 6 Eng. L. & Eq. Eep. 583. may bona fide carry out the act, and afford a remedy for the evils intended to be prevented, but not go further. To reduce this principle into practice, I am inclined to consider that every signature to a wUl is sufficient in law, where an ordinary person, intending bona fide to carry out the directions of the statute, would, in conformity with the dictates of common sense, place that signature, not attempting to give to the words ' foot or end' a more ex- tended meaning than this, what might be fairly deemed the conclusion of the will; not holding an the world bound to know what we know, that the attestation clause is not the dispositive part of the will, taking, however, especial care not to carry this too far ; taking p) BwHU V. Silliman, ] 6 Barb. S. C. R. 198. (a) 1 K. L. 1813, 364; 29 Car. II, oh. 3. (r) 1 Barb. S. 0. Kep. 5.26, 530.. SIGNING BY THE WITNESSES. HI tive," to ttose provided by the former law, supposing that to have now any vitality, as that law prescribed the solemnities for the execution of devises of land only, whilst the present statute concerns wills, whether of real or of personal property. But the previous act has been expressly repealed, (rr) and none of the English statutes are any longer to be con- sidered as laws of this state. The revisers in their report to the legislature on the law relative to wills, reported a_.section for the execution of wills of real estate, as has already been seen,(s) substantially the same as the former second sec- ■ tion of the act concerning wills in the Revised Statutes of 1813, and expressly requiring in respect to such wills, that the attesting witnesses should "subscribe their names as witnesses in the presence of the testa- tor."{t) The requirement that the witnesses should af&x their places of residence to their signatures, "to facilitate the proof of wills, and the detection of forgeries," was also originally proposed to attach to wills of real estate only. . With respect to the execution of wills of personal property, they proposed to leave the law the same as it stood previous- ly, except that they recommended that the requisite ages for compe- tency should be defined and reported, a provision requiring two witness- es to a will of personal property, where the testator Avas under twenty- one years of age, or' where the name of the testator was written by his direction.(M) When these propositions came before the legislature, they saw fit to frame the present 40th and 41st sections, abolishing all distinctions between the manner of executing "wills of real, and wills of personal estate, requiring the same formalities in respect to both, and applying all the new facilities for proof and preventatives of fraud, recommended by the revisers to wills of either or both species of prop- erty. In framing the subdivision now under consideration, they omit- ted any express requirement that the attesting witnesses should sign in the presence of the testator. U nder the previous statute, the doctrine of a constructive presence of the testator had arisen, and had been carried very far ; and it had been decided, that if the witnesses were within view, and where the testSitoT .might, or had the capacity to see them with some little effort, if he had the desire, though in reality he did not, they were to be deemed subscribing witnesses in Ms presence.{v) The present statute drops the direction in the former statute relative to wills of real estate, that the witnesses should subscribe in the presence of the testator, and "the doctrine of constructive presence," says Chancellor Kent, "is thereby wisely rejected."(w) This question has been expressly adjudicated in two reported cases,(a;) and in both it has been determined that it is not necessary that the attesting witnesses should sign their names in the presence of the testa- ()t) See General Repealing Act, passed December 10, 1828, sec. 1, clause 95. \s) Ante, p. 80. {t) See 3 K. & or. S. (2d ed.) AjJpendix, 627. (u) lb. 629. («) 4 Kent's Comm. 515 ; 7th ed. 574-5, where the cases are coUeoted. (w) lb. 515, 574. . (k) Ruddon v. McDonald, 1 Bradf. Sup. Ct. Rep. 352 ; Lyon v. Smith, 11 Barb. Sup. Ct Eep. 124. 112 EXECUTION OP "WILLS BT BLIND PERSONS. tor, in the strict sense of the express requirement of the former law. In Ruddon v. McDonald, the testatrix subscribed the will in a small bedroom, and the witnesses signed in an adjoining room. The door between the two rooms was open, but the place where the witnesses signed, was in a part of the room where the testatrix could not see the Ivitnesses in the act of signing, without putting her head down towards the foot of the bed, if she could then ; and they did not look to be able to say whether they could see her face at the time or not. In Lyon v. Smith, the subscribing witnesses did not attest in the presence of the testator, but. did it in an adjoining hall, and out of the sight of the tes- tator ; and it was held in each case, that the attestati*on was sufficient Both decisions were put upon the ground, that the omission from the present statute of the clause contained in the former act, requiring the witnesses to attest and subscribe the will in the presence of the testator, under the circumstances above mentioned, was a clear indication of an intention on the part of the legislature to change the law in that par- ticular. The object of the old rule was to prevent imposition by chang- ing the paper. The present statute, it is reasonable to presume, is also to be construed with a view to the prevention of the same evil practices. The former statute did not require the testator to sign in the presence of the witnesses, the present does. The former required the witnesses to attest and subscribe in the presence of the testator, the present does not. The insertion of the first requirement is perhaps to be regarded as a compensation for the omission of the latter ; but it is a necessary requisite of an attestation to any instrument,- that the witness subscribe at the time of the execution, or acknowledgment thereof, and with the knowledge and consent of the one who executes the instrument.(y) A strict observance of this rule, is especially demanded as a safeguard against fraud in the execution of wills, and nothing less than this will satisfy the present provision. Of the Execution of Wills hy Blind Persons, and hy Persons Deaf and Dumb. Concerning the execation of the will of a blind testator, no enact- ment is made in this statute ; and consequently he, as well as others, must comply, as far as he is able, with the requisitions of a statute out of -which he is not excepted. He must subscribe the will in the pres- ence of the attesting witnesses, or get some other person to sign his name for him, and acknowledge that signature as having been made by his direction and in his presence, and he must declare the instrument so subscribed to be his last will and testament, and request the witnesses to sign it as Such. The suggestions of Chancellor Walworth in Chaffee V. The Baptist Missionary Convention,{z) for the execution of a will by a person not capable of reading or writing, apply with the greatest force to the execution pf a will by a blind person. " It would be proper that the whole will should be deliberately read over to him in the presence and hearing of the witnesses, and Ihe fact of such reading in {y) I/yon\. SmUh, 11 Barb. S. 0. Eep. 126, per Shankland J. ; Henry v. Bishop, 2 Wend. 615: Solknback v. Fleming, 6 Hill, 303. • («) 10 Paige, 90. PAPERS REFERRED TO IN WILLS. 113 his presence should be stated in the attestation clause, or at least the witnesses ought, by inquiries of the testator himself, to ascertain the fact that he was fully apprised of the contents of the instrument Avhich he executed and published as his will, as well as that he was of com- petent understanding to make a testamentary disposition of his proper- ty.''(a) The attesting witnesses must of course sign their names as wit- nesses, as in the ordinary case. There has heretofore been occasion to remark in the course of the consideration of the several provisions of the statute, that persons not able to speak, in which description may be included deaf and dumb persons, may make an acknowledgment of subscription or a publication of a will by signs.(&) But the greatest pains and caution are demanded in these cases, in order satisfactorily to ascertain and establish that the testator is mentally competent to the execution of a will, and that he fully comprehends the nature of the act he is about performing, and the disposition of his property made by the alleged testamentary instru- ment. The authorities with respect to the Statute of Frauds, appearto apply to the present statute, upon the question Avhether an uiattestod will or other paper may be rendered valid as a testamentary disposition, by being referred to and adopted by a will properly attested. Those au- thorities have established, that if the testator, in a will or other testament- ary paper duly executed, refers expressly to an existing .unattested will or other paper, the instrument so referred to becomes part of the will.(c) The object of the change in the words of the present statute from those of the former statute, by which the subscription of the testator and the attestation of -the witnesses are required to be at the end of the will, was to insure a signature of authentication, distinct from and at .the close of the descriptive and disposing parts of the will ; and the practice of making the references spoken of, has not, it is believed, at any time resulted in any mischief or inconvenience. "Whether the two papers, the will and the paper referred to therein, are brought together by be- ing attached, at the time of the execution of the one or not, can have no other effect than as to the identity of the one referred to. If annexed, the identification may perhaps be more satisfactory in many cases than it would otherwise be. But the effect or character of it is not at all changed. The contents of the paper, so far as referred to in the instru- ment executed, become constructively a part of the latter, and in that respect they make together one instrument, although in fact existing in two distinct papers, whether attached together or not.{d) But whether the paper referred to be attached to the will or not, the reference must (a) See also Weir v. FH^ Gerald, 1 Brad£ Suit. Rep. 42. (ft) See arafe, p. 77. (c) Halergham v. Vincent, 2 Ves. jun. 228 ; and see cases under both the Statute of Frauds and the recent English Statute ; Wms. on Bxrs. 80 ; Tonnde v. Hall, 4 Comst. 140 ; In the Goods of the Rev. Geo. Sunt, 2 Robert. 426 ; In the Goods of Sillhouse, 17 Jur. 1186. (d) Tonnde v. Hall, 4 Comst. 144, 146. 8 1X4 . PROOF WHERE TESTIMONY OF ATTESTING be distinct, so as to exclude tlie possibility of mistake ; and tlie paper referred to must be already written, (e) If any person be a subscribing witness to the execution of a will, wherein any beneficial devise, legacy, interest or appointment of any real or personal estate is made to such witness, the will is not on that account invalid, but if such avUI cannot be proved without the testimony of such witness, the devise, legacy, interest or appointment is void so far only as concerns such witness or any claiming under him, and such person is a competent witness, and compellable to testify respecting the execution of the will in like manner, as if no such devise or bequest had been made. But if such witness would be entitled to any share of the testator's estate in case the will were not established, then so much of the share that would have descended or have been distributed to such witness is saved to him, as will not exceed the value of the devise or bequest made to him in the will, and he may recover the same of the devisees or legatees named in the will, in proportion to and out of the parts devised and bequeathed to them.(/) If by any will any real estate be charged with any debt, and the creditor whose debt is so charged attest the execution thereof, such creditor, notwithstanding such charge, is_a competent witness to prove the exe .-i (p) 2E. S. 64; 4th ed. 246. REVOCATION OP WILLS. 123 testator, sucli will shall be deemed revoked, unless provision shall have 'been made for such issue by some settlement, or unless such issue shall be provided for in the will, or in such way mentioned therein as to show an intention not to make such provision ; and no other evidence to rebut the presumption of such revocation shall be received. Sec. 37. [Sec. 44.] A will executed by an unmarried woman, shall be deemed revoked by her subsequent marriage. Sec. 38. [Sec. 45.] A bond, agreement, or covenant, made for a valu- able consideration, by a testator, to convey any property devised or bequeathed in any will previously made, shall not be deemed a- revo- cation of such previous devise or bequest, either at law or in equity ; but such property shall pass by the devise or bequest, subject to the same remedies on such bond, agreement, or covenant, for a specific performance or otherwise, against the devisees or legatees, as might be had by law against the heirs of the testator, or his next of kin, if the same had descended to them.(g) Sec. 39. [Sec. 46.] A charge of incumbrance upon any real or per- sonal estate, for the purpose of securing the payment of money, or the performance of any covenant, shall not be deemed a revocation of any will relating to the same estate, previously executed ; but the devises and legacies therein contained, shall pass and take effect, subject to such charge or incumbrance. Sec. 40. [Sec. 47.] A conveyance, settlement, deed, or other act of a testator, by which his estate or interest in property, previously de- vised or bequeathed by him, shall be altered, but not wholly divested ; shall not be deemed a revocation of the devise or bequest of such property ; but such devise or bequest shall pass to the devisee or lega- tee, the actual estate or interest of the testator, which would otherwise descend to his heirs, or pass to his next of kin ; unless, in the instru- ment by which such alteration is made, the intention is declared, that it shall operate as a revocation of such previous devise or bequest. Sec. 41. [Sec. 48.] But if the provisions of the instrument by which such alteration is made, are wholly inconsistent with the terms and nature of such previous devise or bequest, such instrument shall operate as a revocation thereof, unless such provisions depend on a condition or contingency, and such condition be not performed, or such contin- gency do not happen.(r) * Sec. 42. [Sec. 49.] Whenever a testator shall have a child born after the making of his will, either in his lifetime or after his death, and shall die, leaving such child; so after bora, unprovided for by any set- tlement, and neither provided for, nor in any way mentioned in his will, every such child shall succeed to the same portion of. the father's real and personal estate, as would have descended or been distributed to such child, if the father had died intestate, and shall be entitled to recover the same portion from the devisees and legatees, in proportion to, and out of the parts devised and bequeathed to them, by such will.(s) Sec. 46. [Sec. 53.] If, after the making of any will, the testator shall (g) 2B. S. 64;4tlied. 246-Y. (r) lb. 65. (s) lb. 65 ; 4th ed. 2i1. 124 REVOCATION BY A SUBSEQUENT TESTAMENTARY DISPOSITION. duly make and execute a second will, the destruction, cancelling or^ revocation of such second will, shall not revive the first will, unless it appear by the terms of such revocation that it was his intention to re- vive and give effect to his first will, or unless after such destruction, cancelling or revocation, he shall duly repuTDlish his first will.(<) The following section of the Eevised Statutes, also has a bearing upon the ^subject of the revocation of wills : Sec. 88. [Sec. 67.] No will of any testator who shall die after this chapter shall take effect as a law, (31st December, 1829,) shall be al- lowed to be proved as a lost or destroyed will, unless the same shall be proved to have been in existence at the time of the death of the testator ; or be shown to have been fraudulently destroyed, in the life- time of the testator ; nor unless its provisions shall be clearly and dis- tinctly proved, by at least two credible witnesses, a correct copy or draft being deemed equivalent to one witness.(M) Revocation hy a subsequent Testamentary Disposition. " Concerning the making of a latter testament," says Swinburne, (■«) " so large and ample is the liberty of making testaments, that a man may, as oft as he will, make a new testament, even until his last breath; neither is there any cautel under the sun to prevent this liberty ; but no man can die with two testaments, and therefore the last a;nd newest is of force ; so tha,t if there were a thousand testaments, the last of all is the best of all, and makes void the former."(w) With respect further to revocation, by a subsequent will, as provided by the 42d section of the statute, it is to be observed that a subse- quent will does not revoke a former one,' unless it contains a clause of revocation or is inconsistent with it. Thus m. Nelson y. McGiffert,{x) the will offered for probate was dated and executed in July, 1852, and the evidence fully established the fact of the du'e execution of a testa^ m'entary paper, by the decedent in 1837, which was not forthcoming, but the parties entirely failed, in showing that the latter was a revoca- tion of the will of July, 1832, or that it was inconsistent with that will in any respect, and the prior will was sustained. And where the last will is inconsistent with the former will in some of its provisions merely, it is only a revocation pro ianto.{y) Thus, several testamentary papers, all duly executed at different dates, but not containing any clause of revocation, may all be admitted as together constituting the last will of the decedent. And so it was determined in the case of the (0 2 R. S. 66 ; 4th ed. 248, hi) 2 R. S. 68 ; 4th ed. 254. (v) Part 1, sec. 14, pL 1. (w) In Bryan v. White, (14 Jur. 919 ; 5 Eng. L. & Eq. 519,) the testator died on the 25th of August, leaving two wills of the 23d and 24th of that month, of a totally different tenor, and the will of the 24th had no words of attestation, although the prior will had a fuU attest- ation clause. Upon the. evidence in the case it was held, that the presumptions arising against the last will, from the improbability of two wills on two successive days and other circumstances, were rebutted, and the last will alone was established. (x) 3 Barb. Ch. Rep. 158, 164. (y) Brant v. WiUion, 8 Cow. 56. But see Plenty v. West, 1 Robert. 264 ; 9 Jur. 458 ; Plenty v. West, 17 Jur. 9 ; 22 Law J. Rep. (N. S.) Chanc. 185 ; 15 Eng. L. & Eq. Rep. 283 ; Bichardsv. Queen's Proctor, 18 Jur. 540 ; Cvtto v. Gilbert, lb. 560. REVOCATION BY A SUBSEQUENT TESTAMENTARY DISPOSITION. 125 will of Gatliarine^Macabee, deceased, before the surrogate of tlie county of N.ew York,(s) where a will disposing of the testatrix's real estate only, but appointing an executrix, had already been admitted to pro- bate, and a subsequent will disposing of personal property without any clause of revocation, was afterwards offered for probate and was ad- mitted, as together with the former constituting the last will and testa- ment of the testatrix.' And whether the provisions of the two or more wills under these circumstances were inconsistent with each other, would probably be left to be determined by a court of construction. Mere proof of the execution of a subsequent will, then, is not suf&- cient to invalidate a prior will. There must be proof of a clause of revocation or of contrary or inconsistAt provisions. And where the contents of the last will cannot be ascertained, it is not a revocation of the former will. This was decided by the Court of King's Bench, in England, more than one hundred and fifty years ago, in the case of Hutcliins, lessee of Nosworthy v. Bassett.ia) And that decision was sub- sequently affirmed upon a writ of error in the House of Lords.(6) In the subsequent case of Harwood v. Goodright,{c) which came before the Court of King's Bench in 1774, it was held that a former will was not revoked by a subsequent one, the contents of which could not be ascertained ; although it was found by a special verdict that the dispo- sition -which the testator made of his property by the last will, was different 'from that made by the first will, but in what particulars the jurors could not ascertain. This case also was carried to the House of Lords upon a writ of error; and the judgment of the Court of King's Bench was affirmed. As these two decisions of the court of dernier resort in England were previous to the revolution, they conclusively settle the law on the subject here.(cZ) A will duly executed, which in terms revokes all former wills and appoints executors, is, however, a valid revocation of a former will, disposing of a part of the testator's property ; although the will containing such clause of revocation makes no disposition of the property embraced in the former will.(e) If two inconsistent wills be found of the same date, or without any date, and no evidence can be adduced establishing the posteriority of the execution of either, both are necessarily void, and the deceased must be considered intestate; but in every case the courts will struggle to reconcile them, if possible, and collect some consistent disposition from the whole.(_/') Again, where there are several codicils or other testamentary papers of different dates, it is a question of intention upon all the circum- stances of the case, -which and how far either is a revocation of another, or whether the dispositions of the latter are to be considered as addi- tional and cumulative to those of the prior. Parol evidence, however, (2) February, 1852, Hon. A. 'W. Bradford, Surr. ; Campbell v. Logan, 2 Bradf. Surr. Eep. 90. See also Richards v. QueerCs Proctor, 18 Jur. 540. (a) Comb. Rep. 90 ; 3 Mod. 203, & G. (h) See Bungerford v. Nosworthy, Sho-w. Cases in Pari. 146. (c) Co-wper's Rep. 87. {d) See the judgment of Chancellor -Walworth in Nelson v. McGifferi, 3 Barb. Ch. Rep. 162, 165. (e) In, ihe Mailer of Thompson, 11 Paige, 453, (/) See "Wms. on Exrs. 136, and authorities cited. 126 EETOOATION BY A SUBSEQUENT TESTAMENTARY DISPOSITION. is not to be admitted in order to investigate tlie animus with -wliicli the act was done, unless there is such doubt and ambiguity on the face of the papers, as requires the aid of extrinsic evidence to explain it.{g) Previous to the enactment of the above recited 53d section of the statute, it had long been a vexala qucesiio whether the principle of law was that, on the revocation of a latter will, a former uncancelled will should revive or not. In the courts of common law the presumption, it was said, was in favor of the revival of the former will ; but in the ecclesiastical courts, either an opposite presumption prevailed, or the case was considered to be open without prejudice to the examination of testimony. In both courts^ however, the law was undisputed that parol evidence was admissible to ascertain the real intentions of the testator, and to determine the fact of a revival of his will, or a designed intestacy.(A) It was this rule, say the revisers in their note to this provision, (t) which they proposed to change in the above section, by adopting the presumption against a revival, and excluding evidence to contradict it. It seemed to them, they added, "that the admission of parol evidence in any case to ascertain the intentions of the deceased, is contrary to the whole spiritand policy of the Statute of Wills, and is calculated to let in all the mischiefs which its salutory provisions were framed to prevent." The provisions of the 53d section, as reported by the reyisers and adopted by the legislature, it is plain, do not extend to all cases of the revocation or destruction of a second will, to affect the previous tes- tamentary dispositions. Assuming that a second will, by its terms re- voking a previous will still retained by the testator, although of itself revocable during the life of the testator absolutely from the time of its execution, defeats the previous' will, and thereby if the latter should be destroyed, cancelled or revoked, raises a necessity for the revival of such previous will, in order to give it validity. A. case where the second will does not, by its terms, impair the validity of the previous will, but which has been destroyed or revoked, is not within the provision of the statute. In such a case, the words of the statute that " the de- struction, cancelling, or revocation of the second will, shall not 7-evive the first will, unless it appear by the terms of such revocation, that it was his [the testator's] intention to revive and give effect to his first will," have not any application. There cannot be any occasion for the testa- tor, on destroying or revoking a subsequent will, to manifest an inten- tion to revive a previous will, if the validity of such previous will has not been defeated or impaired. (j) (g) See Wms. on Exrs. 136, and oases cited. Eor a very curiously compKoated caae, in- volving the question of the relative effect of several codicils and testamentary papers, ' see Sale V. Ibkehve, 14 Jur. 817 ; 5 Eng. L. & Eq. 574. See, also, Warner v. Warner, 15 Jur. 141 ; 2 Eng. L. & Eq. 68. In Re Bough's Estate, 20 Law J. Rep. (N. S.) Chan. 422 ; 6 Eng. L. & Eq. 61 ; In the Goods of Duedy, 15 Jur. 1042 : lb. 584 ; Gleobwrg v. Beckett, 14 Beavan, 583; IIL. &Eq. 329. Qi) Goodright v. Glazier, 4 Burr, 2512 ; Cowp. 1791 ; 1 Phillim. 406, 446 ; 2 Addam, 116. See, also, Wms. on Exrs. 145-6. (i) 3 R. & or. S. (2nd ed.) Appdx. 633. (j) The language of the statute would seem to imply, that in all cases of the execution of a second will, the presumption is, that such -wjiU revokes the first. This section of the statute was not adverted to in the decision of Nelson v. McGifferi, 3 Barb. Ch. Rep. 158 ; although it REYOCATION BY BURNING, TEARING, ETC. 127 By express Revocation. According to the above quoted 42d section of tlie statute, express revocation or alteration of a will, or other testamentary instrument, cannot be effectual, unless " by some other will in writing, or some other writing of the testator, declaring such revocation or alteration, and- executed luith the same-formalities, with which the will itself luas required hy law to he executed." Among the formalities prescribed for the due execution of a will, as will be remembered, it is required, that the tes- tator at the time he subscribes or acknowledges his subscription, " shall declare the instrument, so subscribed by him, to be his last will and testament." The instrument of revocation, contemplated by the sec- tion of the statute now undfer consideration, is not a will, and cannot be published as such, because, in the first place, it is executed for the very opposite purpose, that of defeating a will, and, in the second place, a revocation by a subsequent will is expressly provided for, by the previous words of the section. The clause in question, providing for an express revocation, is, therefore, inoperative. 18ie section was re- ported by the revisers, with a view to the adoption, by the legislature, of the provisions recommended by them, prescribing the formalities for the execution of wiUs, and this clause was consistent with and applicable to those provisions. (/c) The change made by the legislature in the formalities for the executioa of wills, created the inconsistency. Revocation hy the Republication of a prior Will. If a man make a will and, at a future period, republish it, such re- publication will revoke any will, intermediate to the original date of the prior will, and its republication. (Z) But this subject will be more conveniently discussed hereafter, when the doctrine of republication, generally, is considered.(m) Revocation hy Burning, Tearing, Cancelling, Obliterating or Destroying. With respect to revocations by injuries to, or destruction of the instrument, it has been held, that in order to operate a revocation of a was cited on the argument. It does not. however, appear from the judgment of the Chan- cellor in that cause, that it was oonaidered that the destruction, cancelling, or revocation of the second wiU, was estabhshed by the proof. Such a case is not within the present section of the statute, "frhere that does appear, it might, perhaps, admit of a doubt, whether instead of requiring of the party setting up the revocation, proof of a clause of revocation or of incon- sistent provisions, the burden of proo^ on the strict letter of the statute, would not he on the other party to prove the absence of such clause or provisions. The corresponding provision of the recent English statute, (1 Vict. c. 26,) enacts (sec. 22) that no wiU or codicil, or any part thereof which shall be in any manner revoked, shall be re- vived otherwise than by the re-execution thereof &c. In Cuito V. Gilbert, (18 Jur. 560,) A. C. duly executed his wiU. Subsequently, he duly executed another wiU, which was not found at his death, and the contents of which were unknown, save that it was headed " last will and testament ;" it was held that the former will was revoked by the execution of the latter. (Jc) See 3 B. & or. S. {2d ed.) Appendix, 62'7, 629, 631. (I) Wias. on Exrs.' 152, and cases cited. (m) Fast, p. 135. 128 EEVOCATION BY BURNING, TEASING-, ETC. will in this manner, it is not necessary that the instrument itself should be consumed or torn to pieces.(n) Such acts on the part of the testator, as clearly evince a purpose and determination to destroy the will, and which, if not frustrated by accident, or by the interference of ' other persons, would inevitably accomplish the destruction of the pa- per, are sufficient, even though the will be not actually injured in any material part, or be but slightly burnt. But there must be an actual burning of the will to some extent, in order to effect a revocation of this nature, (o) And whether by tearing or burning, for the purpose of revoking, there must be such an injury perpetrated, with intent to revoke as destroys the entirety of the will. It may then be said, that the ' instrument no longer exists as it was.(j5) ■ It should be added, that if the act of destruction or cancellation be inchoate and incomplete, it will not amount to a revocation. (§') Thus, if the testator in a moment of passion, against a legatee in his will, commence tearing the paper, but being interrupted before doing all he intended, afterwards expresses himself glad that he had not completely destroyed the paper, this is not a revocation. * The destruction of the instrument, by the direction and in the pres- ence of the testator, or even by his own hand, will not amount to a revocation in judgment of law, unless he had at that time, sufficient capacity to understand the nature and effect of the act, and performed, it, or directed it to be performed freely and voluntarily, with the in- tent to effect a revocation ; and although the instrument is not in being, its contents having been_ satisfactorily shown, there is no difS- culty ill establishing it as a will, if it is shown to have been improperly destroyed.(r) It is true, that a will proved to have been in existence, but not found at the death of the testator,, is presumed to have been destroyed by him animo revocandi, with the intent of revoking it ; and the above 67th section of the statute, makes provision for this case, and it is incumbent upon a party, who seeks to establish such will, to repel that presumption, and show that it was improperly destroyed.(s) All questions of revocation of wills, have ever been regarded in the probate courts, as questions to some degree of intention, and every fact of revocation may, in some sort, be said to be equivocal : but cancel- ling and obliterating, have always been considered peculiarly as equiv- ocal acts, which in order to operate a revocation, must be done with intention to revoke. The presumption of law, prima facie, is, that such acts are done animo revocandi.{t) [n) Bibb v. Thomas, 2 "W". Black. 1043. (o) Doe V. Earris, 6 A. & E. 209; S C, 2 Nev. & P. 615. Ip) lb. See also SohbS v. Enight, 1 Curt. 168; Wms. on Exrs. 113, 115. ig) Doe V. Perkes, 3 B. & A. 489. See accord. In the Goods of Oolberg, 2 Curt. 832. (r) Trevelyan v. Treveiyan, 1 Phillim. 153 ; Mky v. Bowen, 11 "Wend. 227, 235 ; SmUh v. Wait, 4 Barb. Sup. Ct. Eep. 28. (s) Idley V. Bowen, Supra. See also Nelson v. McGiffert, 3 Barb. Ch. Eep. 158, 164. (t) Wms. on Exrs. 120, and cases cited. The act of cancelling is, in itself; equivocal, and will be governed by the intent. The rule is, that if the testator lets the will stand until he dies, it is his will ; if he does not suffer it to do so, it is not his wiU. It is ambulatory until his death. (4 Burr. 2514.) There must be a cancellmg animo rewcondi. Revocation is an act of the mind, which must bo demonstrated by some outward and visible sign of revoca- tion. The statute has prescribed four [five.] If any of them are performed in the shghtest manner, joined with a declared intent to revoke, it wiU be an effectual revocation. (2 Bl. REVOCATION BY BURNING, TEARING, ETC. 129 But tliis presumption may be repelled by evidence, shoeing that tlie animus did not exist ; as if a man were to throw ink upon his will instead of sand, though it might be a complete deficiency of the instru- ment, it would be no revocation: or suppose a man ha,ving two wills of different dates by him, should direct the former to be cancelled, and, through mistake, the person directed should cancel the latter, such an act would be no revocation of the latter will.(w) In the case of the Goods of Redding, otherwise Higgins,{v) the de- ceased in 1843, then passing by the name of Higgins, requested a friend to draw up her will, which he did, describing her as " C. Higgins," and the deceased duly executed that -will, signing it, " C. Higgins." In 1845, the deceased, who had in the meantime, but without any as- signed reason, dropped the name of Higgins, and assumed that of Red- ding, requested the same person to alter her will for her, so far as re- garded her name, and accordingly the name, "Higgins," was turned into "Redding," in the body of the will and attestation clause, and the signature, "0. Higgins," was erased with a knife. This was done in the presence of the deceased, and subscribed witnesses ; after which the deceased signed the will, "C. Redding," but the witnesses, though present, did not sign the will. "The circumstances of this case," says Sir H. Jenner Fust, are rather peculiar, but as it appears from the facts which have been stated, that the deceased had no intention of re- voking her will, iand her second signature has not been attested, pro- bate must pass of the wUl as originally executed." A codicil is prima facie, dependent on the will ; and the destruction or mutilation of the will, is an implied revocation of the codicil. But there have been cases, where the codicil has appeared so independent of and unconnected with th^ will, that, under the circumstances, the codicil has been established, though the will has been held in- valid. It is a question altogether of intention. Consequently, the legal presumption in this case, may be repelled, namely, by showing that the testator intended the codicil to operate, notwithstanding the revocation of the will.(w) Eep. 1044.) Dan v. Brown, 4 Cowen, 483, 490, per "Woodworth, J. See, also, Jadcson ex dem. Howard v. Holhway, 1 Johns. Rep. 394; Jackson v. Beits, 9 Cowen, 408 ; iS. G., 6 Wen. 173 ; In the Goods of King, 2 Robert. 403 ; Clarke v. Scripps, lb. 403. The intention to re- voke the wUl must however be apparent, and must be attended by evidence of some act which, within the terms of the statute, shall effect a revocation of the will. In the case of the Goods of J. Fary, (15 Jur. 1114; 9 Eng. L. & Eq. Rep. 600,) the deceased duly executed his wUl in 1846 ; in 1850 circumstances occurred which rendered this wiU inoperative, ex- cept as to a legacy of 1002. ; and in December he drew a pen across the wiU, and wrote at the top of each sheet "cancelled," and also, at the end of the will, he wrote, "cancelled by me this 1st day of December, 1850," and it was held that no revocation had been effected, and probate was decreed. (m) "Wma. on Ezra. 120, and cases citec}. This principle, that the effect of the obliteration, canceUing, &c., depends upon the mind with which it is done, having been pursued in all its con- sequences, has introduced the doctrine of dependent relative revocations, in which the act of cancelling, &c., being done with reference to another act, meant to be an effectual dis- position, will be a revocation or not, according as the relative act be efficacious or not. The cases on tliis doctrine are collected and explained by Mr. Justice Williams in his admirable work on Executors, pp. 121-126. See also lb. 141-145. (v) 14 Jur. 1052 ; 1 Eng. L. & Eq. Rep. 624; 2 Robert. 339. (m) Wms. onExrs. 126, and cases cited. See also Satev. Tohelove, 14 Jur. 811 ; 2 Robert. Eccles. R. 318 ; 5 Eng. L. & Eq. 574. 9 130 REVOCATION BY MARRIAGE, ETC. , It stiould be stated in conclusion, that- the onus of making out that the cancellation of a will w^s the act of the testator himself, lies upon those who oppose the will.(a;) Of Revocation hy Marriage or other Change of Circumstances, and there- with of Presumptive or other implied Revocations. The different methods of expressly revoking a will having been now considered, it remains to treat of presumed or implied revocations. The 42d section of the statute which has been considered, provides that no will in writing can be revoked otherwise than by another will by express revocation, or by mutilation or destruction in the manner therein prescribed, " except in the cases hereinafter mentioned." Those cases are where, subsequently to the making of the will, the testator has married and had issue, or a change has occurred in the family of the testator, or in respect to the property, or a portion of the property, devised or bequeathed. The 43d section of the statute makes the marriage of the testator and the birth of issue, the wife or the issue surviving the testator, a revoca- tion of the will, unless provision has been expressly made for such issue, or the will shows an intention not to provide for such issue. Marriage alone, or the birth of issue alone, is not a revocation, but where marriage and the birth of issue concur the will is revoked, al- though the wSe alone survive, and if neither survive the will is not re- voked. But a provision for the issue, or an express intention not to make such provision, prevents a revocation, although there be no pro- vision, or an absence of intention not to provide for the wife. The statute applies only in the case of a will "disposing of the whole of the estate of the testator." It applies, however, as well to a case where the testator had children by a former wife, who are provided for in the will, as where he was without children at the time it was executed.(2/) The statute prescribes the exact extent of the proof which is to rebut the presumption of revocation, that is, either provision for the issue by set- tlement, or in the will, or the mentioning of the issue in the will, in such way as to show an intention not to make such provision, "thereby relieving the courts from all difficulty on that embarrassing point."(a) By the 44;th section of the statute, a will executed by an unmarried woman is revoked by her subsequent marriage. It was an old and settled rule of law that if a woman made a will, and afterwards mar- ried, the marriage alone was a revocation of the will. This was not on the principle of presumption, arising from change of the condition of the testatrix,, but the reason was, that as it is in the nature of a will to be ambulatory during the testatrix's life, and marriage disables her from making any other will, the instrument ceases to be any longer ambulatory, and must, consequently, be void. Therefore, the will of a feme sole ceased to have any operation after she became covert.(a) (a;) Wms. on Exrs. 130. \y) See Savens v. Vandenbergh, 1 Denio, 27. (z) 4 Kent Oomm. 527 ; Adams v. Winne, 7 Paige, 99, per Walwortli, Chan. (o) 4 Kent Comm. 627 ; Wms. on Exrs. 156. EEVOOATION BT MARRIAGE, ETC. 131 And if the wife survived lier husband, although there was some con- flict of opinion on the point, the weight of authority seems to have been that the will could not be deemed to have revived by the death of the husband. (6) The above provisions, deelaring that the will of a married woman shall be deemed revoked hj a subsequent marriage, effectually put an end to this question under that statute.(c) But upon the reason of the thing, this section of the Revised Statutes is repealed by the act of the 7th April, 1848, for the more effectual protection of the property of married women, as amended by the act of the 11th April, 1849. The amended act provjdes as follows : Sec. 3. Any married female may take, by inheritance, or by gift, grant, devise or bequest, from any person other than her husband, and hold to her sole and separate use, and convey and devise real and per- sonal property, and any interest or estate therein, and the rents, issues and profits thereof, in the same manner and with the like effect as if she were unmarried, and the same shall not be subject to the disposal of her husband, nor be liable for his debts. (cZ) Marriage, under this enactment, does not disable a female who has already made a will from making any other will. The will is still am- bulatory, as before the marriagfe. The right and the power to make a valid will has not been changed. They remain precisely the same as if the woman had continued sole. It is submitted, therefore, that, the disability on the part of the woman to make or alter a will during cov- erture, no longer existing, a will executed previously to a marriage is not revoked by that event. By the above recited 45th section of the statute, a bond, agreement or covenant to convey property devised or bequeathed by a previous will, is not to be deemed a revocation of the will, either at law or in equity ; but such property is to pass by the devise or bequest, subject to the right of the purchaser 'to a specific performance. Whether the land with respect to which the contract has been made is to be consid- ered as real or personal estate after the making of the agreement to sell the same, the interest of the testator therein passes to the objects of his bounty as specified in his will, in the same manner as if the agree- ment had not been made subject to the right of the other party to the agreement, to a specific performance of the contract upon payment of the purchase-money, according to the terms of the agreement, for the benefit of whoever may be entitled to the same under 'the will.(e) The rule, however, is, that a contract to sell lands is a revocation, in equity, pro tanto of a prior will. Still, as to the legal estate, the will remains in force ; the title passes to the devisee, and he will be considered a trustee for the purchaser, and compelled to convey in fulfilment of the con- tract.(/) The above sections of the statute, (46, 47 and 48,) prescribe the ef- (6) See 4 Kent Coram. 52T-8 ; Wms. on Bxrs. 156. See, also, for a different view of the point, 3 B. & or. S. (2d ed.) Appendix, 631 ; Reviser's priginal note to sec. 51. (c) 4 Kent. Comm. 528. (d) S. L. 1849, 528, 2 R. S. (4tli ed.) 331. (e) See Knight v. Weaiherwax, 1 Paige, 184. (/) Gaines v. Winthrop, 2 Edw. Ch. Rep. 571, and authorities cited. ]^32 BETOCATION BY MARRIAGE, ETC. feet to be produeed upon the terms of a will by a change in tlie situa- tion of the testator's property, made after the execution of the will. Under these provisions of the statute, evidence is admissible to show the situation of the testator's property at the time of making his will, and the changes which took place therein afterwards, for the purjjose of enabling the court to determine, as a question of law, whether a devise of real estate was revoked, or a specific legacy was adeemed either wholl}' or in part, by a partial or total destruction or change of the subject matter of the devise or bequest. Parol evidence of an ac- tual intent to revoke a devise or bequest, which revocation could not be implied by the court from a mere knowledge of the different situa- tions of the testator's family and property at the time of making his will, and afterwards, is, however, wholly inadmissible. In other words, extrinsic evidence must be admitted to prove the material facts upon •which the legal question of revocation depends. But if the court, after being placed in the situation of the testator, by a knowledge of all these materia] facts, is not authorized, as a question of legal construction, to declare that the devise or bequest was revoked or adeemed, other evi- dence to show the actual intention of the testator cannot be received. On the other hand, it would seem the Revised Statutes have settled the principle, which before had been left in doubt by the conflicting deci- sions of courts, that where the law presumes a revocation from a change in the testator's family or property, after the making of his will, parol evidence of actual intention to the contrary is not admissible to rebut that presumption ._(^) Previous to the Revised Statutes, a devfse of real estate, whether general or specific, was in the nature of an appointment of the specific estate, which the testator had at the time of making his will ; but to take effect only at his death, , and giving the testator the absolute con- trol over the same in the meantime. It was, therefore, like a bequest of a specific legacy of personal estate, liable to be revoked or adeemed by a total destruction, or an entire change of the estate or property which was the subject matter of the bequest or devise. It necessarily followed from the adoption of this principle, that when the testator en- tirely changed the nature of the property devised, or parted with all his interest in the same subsequently to the making of his wiU, there was an implied revocation of the devise, even though he might after- wards have acquired a similar interest in the same property by a new purchase thereof, or otherwise. But where the subsequent disposition Avas of a partial interest in the subject matter of the devise merely, but leaving the residue of the estate devised still in himself, it was only a partial revocatioii or ademption, to the extent to which the estate was disposed of or changed, and the devise remained good as to the residue. And as there was a marked difference between real and personal estate in many respects, it also followed from the principle before mentioned, that when the testator had converted real estate, which he had devised as such into personaltjr, or had converted the subject of a specific be- quest of personal property into real estate, there was a revocation of (g) Adams v. Winne, per Chancellor Walworth, 1 Paige, 99 ; Reviser's Notes, 3 E. & or. S. (2d ed.) Appendix, 631, &o. REVOCATION BY MARRIAGE, ETC. 133 the -will or an ademption of tlie bequest, so far as the nature of the property was changed. To this extent it is apprehended the legisla- ture intended to leave the law unchanged by the above 47th section of the statute, except in the case of a mere equitable conversion of the subject of the devise, by a covenant or contract to sell the same, which case is provided for by the 45th section. "There was another class of cases, however, in which the courts of England, by depa,rting from the true principle of implying the revoca- tion of a devise only in case of an actual instead of a mere constructive ademption of the subject matter of the testator's bounty, and by the adoption of arbitrary rules not founded upon any correct principles of construction, had almost uniformly defeated the actual intentions of the testator.(/i) The result of a departure from the true principle upon which the implied revocation by ademption was originally based, and of an adherence to these arbitrary rules and subtle refinements in de- feating the intention of the testator by a constructive revocation of his will, is very clearly and forcibly pointed out by the revisers in their note to the 47th, 48th and 49th sections of the statute as finally adopt- ed.(i) There is probably no doubt, therefore, that this class of cases alone was intended to be reached by the adoption of the 47th and 48th sections, the 49th being only applicable to an unsettled question of im- plied revocation of an entirely different character. "Before the passing of the Eevised Statutes, it was well settled that an actual conversion of real property into personalty, as by the sale of land, and taking a bond ^d mortgage thereon for the purchase-money, was such an ademption or destruction of the specific property devised, as to revoke a previous will of such property as real estate. And even an equitable conversion of the real estate devised by the making of a valid agreement to sell the same, but witho'ut parting with the legal title, was deemed a revocation in equity. Both of these cases came within the general principle upon which the implied revocation of de- vise by ademption of the subject matter thereof was originally based. And as the legislature has altered the law as to the last only, it fol- lows that where the testator, after the making of his will has sold a por- tion of the land devised, although he has taken back a bond and mort- gage upon the same property for a part of the purchase-money, the will of the testator is absolutely revoked as to the land so sold. Accordingly, in Adams v. Winne,{j) where W., by his will, devised to his two sons, certain portions of his real estate, and charged them with the payment of his debts; and also devised certain other por- tions of his real estate to his two daughters, and- then gave all the rest of his property to his four children to be equally divided between them ; and after the making of his will, he sold and conveyed one of the lots he had devised to his daughters for $3,000, and received on the sale, one-sixth of the purchase-money, and a bond and a mortgage on the lots sold for the residue ; and the testator died, leaving the bond (h) See Gave v. HaXford, 3 Ves. jun. 662, and oases referred to. (i) See 3 K & or. S. (2d ed.) Appdx. 631. (J) 7 Paige, 97, from the judgment of the Chancellor in which the ahove observations on the present subject are mainly taken. See, also, Becky. McGillis, 9 Barb. S.-C. K 35; Brown,' V. Brown, 16 lb. 56, 134 REYOCATION BY MARRIAGE, ETC. and mortgage uncollected. It was held that the sale of the lot, and taking back the bond and mortgage for the purchase-money, was a revo- cation of the devise of the lot to the two daughters, and that the bond and mortgage passed to the four children under the residuary clause in the will. But if the land devised, is reconveyed to the devisor, and the title is in him at the time of his death, the same will pass under the will without any formal republication thereof (^) Where the testator devised a farm to his son, in consideration of labor performed for him by his son after he became of age, which farm was of adequate value to compensate for such services, and afterwards conveyed the same farm to the son in fee ; it was held that such devise was revoked by such conveyance, and that the claim of the son for his services would remain unsatisfied, unless it was agreed that the convey- ance should be in lieu of the devise, and in satisfaction of that claim. (Z) "Where land is devised to several persons in fee, in undivided shares, a subsequent conveyance by the devisor to one of the devisees of a part of the same land, will not revoke or be deemed a satisfaction of the devise to the grantee ; but he is entitled to the land conveyed by the deed, and to a share in the land remaining under the will. And this, although it appears there was a mutual mistake as to the effect of the deed, both parties supposing the land conveyed would be in lieu of the share given to the grantee by the will.(m) Where the testator on the same day on which he executed his will, executed an instrument purporting to be a trust deed, by which he reserved to himself a life estate in certain lands devised by the will ; it was held that the provisions of the two instrunients being not incon- sistent, but in harmony with each other, and the grantor not having " wholly divested" himself of his interest in the property, the will was not revoked by the deed.{n) And it was suggested in that case, that there might be some doubt whether the sections of the statute referring to the revocation of "devises and bequests," as distinguished from those relating to the revocation of "wills," were not intended for the guid- ance and direction of courts of construction, and not for the Probate Court. Improvements upon the land devised, made by the testator after the execution of the will, will not work a revocation ; and even where the devise was in satisfaction of a debt, and both improvements were made upon the land by the erection of buildings which nearly doubled its value, and the debt waS reduced after the execution of the will, during the life of the testator, it was held that there was not a revocation of the devise.(nw) A devise of a lot which the testator has contracted in writing to purchase, and upon which he has paid aportion of the purchase-money, is not revoked by the payment of the residue of the purchase-money, and the absolute conveyance of the lot to the testator after his execu- tion of the will. And where the heir at law in such a case had brought (k) Brown v. Brovm, 16 Barb. S. C. Rep. 569. m Base V. Base, 1 Barb. Sup. Ct. Rep. 174. (m) Arffmr v. Arthur, 10 Barb. S. C. R. 9. • (b) Vreeland v. McGlettand, 1 Brad. Surr. Rep. 393. (n») Mavem v. Havens, &c., 1 Sandf. Ch. Rep. 324. EEPtJBLICATION OF WILLS. 135 ejectment to recover possession of the lot in question, it was held that the devisee was entitled to a perpetual injunction to restrain him from proceeding in such suit, and to a decree for a conveyance by the heir at law of his legal title, which in equity he held as a mere trustee for the devisee.(o) Of the Repuhlication of Wills. The above recited 53d section of the statute which has already been partially considered, (/)) provides that the destruction, cancelling, or revocation of a second will, shall not revive the prior will, unless it appear by the terms of such revocation, that it was the intention of the testator to revive and give effect to his first will,, or unless, after such destruction, cancelling, or revocation, he shall duly republish his first will. . The only mode in which a will which has been revoked by the execution of a second will can be revived, is that pointed out by this section of the statute. It must appear by the terms of the revocation, that it was the testator's intention to revive the prior will, or after the destruction, cancelling, or revocation, he must duly republish his first will. The previous 42d section of the statute, it will be remembered, provides that the revocation of a will must be executed with the same formalities prescribed for the execution of the will itself.(g') A revo- cation of a second will, which, by its terms, manifests the testator's intention to revive the first will, must, therefore, of itself, be a republi- cation of the first will. , A codicil will amount to a republication of the will to which it refers, whether the codicil be, or be not annexed to the will,(r) or be, or be not expressly confirmatory of it ; for every codicil is, in construction of law, part of a man's will, whether it be so described in such codicil or not ; and as such, furnishes conclusive evidence of the testator's considering his will as then existing. But, although the effect of a codicil as to republication, is by no means dependent on its being an- nexed to the will ; yet, if there are several wills of different dates, and there be a question to which of these the codicil is to be taken as a codicil, the circumstance of annexation is most powerful to show that was intended as a codicil to the will to which it is annexed, and to no other. A codicil referring inaccurately to a will, as where there is a misstatement in respect to the day of the month of the date of the will, may, nevertheless, republish it.(s) But, although the general rule as to the republishing operation of a codicil, is as above stated; yet, in all cases of this kind, the question to be considered,. is whether the particular case is, or is not, within the general rule ; for, if it appears on the face of the codicil, that it was not the intention of the testator to republish, the ordinary presumption (o) Clapper v. Bouse, 6 Paige, 149. But see Plowden v. Hyde, 16 Jur. 823 ; 21 Law J. Eep. (N. S.) Chanc. 196; 13 Eng. L. & Eq. 115. ^) Ante, pp. 123, 126. (q) It has been intimated at a previous page, that this provision is inoperative. M Van Cortland v. Kip, 1 Hill, 590. (s) Wms. on Exrs. IT 5-6, and cases cited. 136 CONSEQUENCES OF EBPUBLICATION. arising from the existence of the codicil -will be counteracted. (i) A codicil well executed, which, by its terms, republishes a will found to be deficiently executed, is a good publication of the will, and any in- formality in the execution of the will, is corrected by the codicil duly executed.(M) Of the Consequences of SepubUcation. It has long been a settled law, that the republication of a will is tan- tamount to the making of that will de novo ; it brings down the will to the date of the republishing, and makes it spealc, as it were, at that time. In short, the will so republished, is a new will.(v) Consequently, upon the ordinary and universal principle, that of any number of wills; the last and newest is that in force, it revokes any ^rill of a date prior to that of the republication.(w) But there is a great distinction between wills and codicils in this respect ; for as every codicil is, in construction of law, a part of the will J a testator by expressly referring to, and confirming the will, will not be considered as intending to set it up against a codicil or codicils revoking it in part. If a man ratifies and confirms his last will, he satisfies and confirms it with every codicil which has been added to it.(a;) Another consequence of a republished will being considered as a new will of the date of the republication, is, that its operation is ex- tended to subjects which have arisen between its date and republica- tion. Thus, if a man bequeath goods which he has not, if he after do •purchase the same and then republish his will, it shall be a good will and the bequest will be effectual ; and so far has the doctrine that a republication gives words, used in the original will, the same force and effect as they would have had if first written at the time of the republication, been extended, that it has been considered that a bequest may extend to any person to whom the description is applicable at the period of republication, though not originally intended.(y) This consequence of republication was not so important with respect to personalty, as it was with regard to realty, before the passing of the Revised Statutes, because a will of personalty, if it contained pros- pective 'vjords sufficiently comprehensive, would operate on the per- sonal estate of the testator, to which those words applied, although ac- quired since the making of the will, without any republication of it ; whereas no real estate which the testator had not at the date of the will would pass by it, however express, comprehensive and general the it) Wms. on BxTS. 1*77. See, also, the Judgment of Lord Cranworth, T. C, in StihiiellY. Mellersh, 20 Law J. Kep, (N. S.) Chano. 356 ; 5 Eng. L. & Eq. Bep. 185. (w) In the Goods of Ma/ry Ann Dicken, deceased, 2 Robert. Eool. Rep. 298. (v) Wms. on Exrs. 179. [w) Wms. on Exrs. 179, and oases cited. In Bryan v. White, (14 Jur. 919; 5 Eng. L. & Eq. Rep. 579,) the testator died on the 25th of August, leaving two wills of the 23d and 24th of that month, of a totally different tenor ; and the will of the 24th had no words of attestar tion, although the prior will had a full attestation dause. Upon the evidence in the case, it was held that the presumptions arising against the last will from the improbability of the two wills on two successive days, and other circumstances, were rebutted, smd the will of the 24th of August, alone was established. (x) Wms. on Exrs. 179, and cases cited. (V) See Wms. on Errs. 181. CONSEQtfENCES Oy EEPUBLICATION. 137 words, or however manifest the intention of the testator might be. Consequently no after-purchased lands could pass, nor any lands which did not remain in the same condition from the date of the will till the death of the testator, unless there were a republication, according to the solemnities required by the act concerning wills or the Statute of Frauds ; for any, the least alteration, or new modelling of the estate after the will, was an actual revocation.(z) But now, by statute, every will that shall be made by a testator in express terms, of all his real estate, or in any other terms denoting his intent to devise all his real property, shall be construed to pass all the real estate which he was entitled to devise, at the time of his death, (a) It has already appeared(6) with reference to this provision of the statute, that if the testator devise all his real estate at a particular place, or within a particular district of country, after-purchased lands at that place or within that district, do not pass by the will. In order to make a will in such a case apply to such lands, it must be republished. The execution after the Revised Statutes of a codicil to a will, made before they took effect, renders the construction of the will svibject to the provisions of those statutes, in the same manner as if it had then been originally made, and therefore in such a case it was held, that the statute declaring that no devise to a corporation shall be valid, unless such corporation be expressly authorized by its charter, or by statute, to take by devise, (c) controlled the effect and validity of certain provi- sions of such will.(a) It has already been stated, (e) that a codicil has the effect, and inde- pendently of any intention, to bring down the will to the date of the codicil, making the will speak as of that date, unless a contrary in- tention be shown, in which case it will repel that effect. When it is said, however, that a codicil republishing a will or confirming a will, makes the will speak from the time of republication, that does not mean that the will is to be read in any way different from the niode in which it would have been read, if the testator had died the moment after he had executed it. Thus, it was said by Lord Cranworth, Y. C, in Stilwell v. Mellersh .•(/) " Suppose I, by my will, say I give £500 to the present treasurer of Lincoln's Inn, and this day twelve months I republish my will, does that alter the party who is to take the legacy ? That must be so, if it is to read as if I had written it over ■ again ; the "present" treasurer would be a different person. So I con- ceive if I had said, I devise all the estates of which I am now seised. I afterwards purchase lands, and republish my will, I confess I think the same principle applies, as governed Lord Cottenham, in Cole v. ScoU.{g) My will must be read in the same way, as if I had said, I give all the lands of which I, on this 24th day of March, 1851, am (z) See ante, p. 132, and authorities and cases cited, (a) 2 B. S. 67 ; 4th ed. 241, sec. 5 ; Ante, p. 43. Ifi) Ante, p. 44 ; Fond v. Bergh, 10 Paige, 140. (c) 2 E. S. 57, sec. 3 ; 4th ed. 241, sec. 3. (d) Ayers v. Melh. Oh., 3 Sandf. Superior Ot. Eep. 352. (e) Ante, pp. 45, 136. (/) 20 Law J. Eep. (N. S.) Chanc. 356; 5 Eng. L. & Bq. Eep. 185. \g) 1 HaU & T-w. 477 ; 1 Mac. & Gor. 518 ; 19 Law J. Eep. QS. S.) Chanc. 63. 138 OP PROVING WILLS. seised, and if I republish that in 1852, it will still be read just as it was before ; it will refer only to that which is there mentioned. Now, the cases in which this question has often arisen, and with which we are famihar, are these : where a party says by his will, " I give all my lands," what does that mean ? AU the lands that I have power to give. When, a year afterwards, I republish that will, having inter- mediately purchased lands, it will apply to the after-purchased lands. It is to be read just as if I had put in those words, "all the estates which I had power to give." Therefore it seems to me that the dis- tinction is manifest between an express date, or an express name fixed upon. You cannot alter that by saying you republish the will at a different time. You do republish it so as to make it operate from that other later time, and if there be any legal effect, that is brought to operate by what has taken place in the meantime, you have the benefit of that. But you cannot alter the meaning of the will, which you will be doing, if, by republishing the will, you are to treat the testator a^ having meant something by his will, different from that which he has there expressed. "(A) , Of Proving Wills. , All wills to affect lands within this state, and generally all wills dis- posing of personal property within this state, must be proved in the Surrogate's Court having jurisdiction, unless in those cases where juris- diction is given to the Supreme Court, formerly the Court of Chan- cery, to take the proof of the will. Those cases are where the wit- nesses to a will duly executed, according to the laws of this state, re- side without the jurisdiction of this state, or where the original will is in the possession of a court or tribunal of justice in any other coun- try or state, whence the same cannot be obtained, (i) or where a will of personal estate is duly executed by a person residing out of this state, according to the laws of the state or country in which the same was made.(_;' ) In all other cases, the proceedings for the proof of the will, are to be taken in the Surrogate's Court. Before the Eevised Statutes took effect, the jurisdiction of the Surro- gates' Courts was limited to the probate of wills of personal property. Where any real estate was devised by last will and testament, the executors to such will, or any person interested in the estate,' might cause the said will to be brought before the Supreme Court, or the Court of Common Pleas of the county in which such real estate was situated, and the proof might there be taken and the will and proof re- corded, and a will, duly certified by the clerk of the court in which the proof was taken to have been so proved, or the record, or a duly certi- fied transcript of the record of such will and proof, were as effectual in all cases as the original will was, if produced and proved.(^) But now, under the Revised Statutes, the Surrogates' Courts have jurisdiction to ft) See, also, the judgment of Lord Mansfield, in EeiMn v. Hmlm, Cowper, 132. (») 2 R. S. 61 ; 4tli ed. 252, sec. 7^, (sec. 63.) {j) 2 R. S. 67, 4th ed. 263, see. 82, (sec. 68.) (ft) 1 R. L. 1813, 365, sec. 7. JURISDICTION OP SUEROGATB'S COURT. IS9' take the proofs of wills of real as well as personal estate, as has heretofore appeared,(Z) and there is not any other court which has jurisdiction to take the proof of a will, except in the particular cases above specified. The proving and recording of wills of real estate, have become of greater importance to devisees since the Eevised Statutes than formerly. The fifth title of the first chapter of the second part of the Eevised Statutes, (m) enacts as follows: Sec. 3. The title of a purchaser in good faith, and for a valuable consideration, from the heirs at law of any person who shall have died seised of real estate, shall not be defeated or impaired by virtue of any devise made by such person of the real estate so purchased, unless the will or codicil containing such devise shall have been duly proved as a will of real estate, and recorded in the office of the surrogate having jurisdiction, or of the register of the Court of Chancery, [now the Su- preme Court,] where the jurisdiction shall belong to that court, within four years after the death of the testator: except, 1. Where the d&visee shall have been within the age of twenty-one years, or insane, or imprisoned, or a married woman, or out of the state at the time of the death of such testator ; or, 2. Where it shall appear that the will or codicil containing such devise shall have been concealed by the heirs of such testator, or some one of them. In which several cases, the limitation contained in this section shall not commence, until after the expiration of one year from the time when such disability shall have been removed, or such will or codicil shall have been delivered to the devisee or his representative, or to the proper surrogate. Of the Surrogate's Court having Jurisdiction to take the Proof of the Will. The act of the legislature of the sixteenth of May, 1837, "cioncerning the proof of wills," &c., provides as follows: Sec. 1. The surrogate [or county jtfdge, &c.,J shall have jurisdiction, exclusive of every other surrogate, within the county for which he may be appointed, [elected,] to take the proof of last wills and testa- ments of all deceased persons, in the following cases: 1. Where the testator, at or immediately previous to his death, was an inhabitant of the county of such sixrrogate, in whatever place such death may have happened ; 2. Where the testator, not being an inhabitant of this state, shall die in the county of such surrogate, leaving assets therein ; 8. Where the testator, not being an inhabitant of this state, shall die out of the state, leaving assets in the county of such surrogate ; 4. Where a testator, not being an inhabitant of this state, shall die out of the state, not leaving assets therein ; but assets of such testator shall thereafter come into the county of such surrogate ; (I) Ante, p. 19 ; 2 R. S. 220 ; 4th ed. 418, see. 1. (m) 1 R. S. US; 4th ed. Vol. II, 155. 140 JURISDICTION OF SUKROaATE'S COURT. 5. Where no surrogate lias gained jurisdiction under either of the preceding clauses, and any real estate devised by the testator shall be situated in the county of such surrogate.(n) The Kevised Statutes, as has been seen,(o) provide that every surro- gate, duly qualified, shall have power also to take the proof of any will relating to real estate, situated within the county of such surro* gate, when the testator, in such will, shall have died out of this state, not being an inhabitant thereof, and not leaving any assets therein. The case of a person, not an inhabitant of this state, dying in the county of the surrogate, not leaving assets therein but leaving assets in another county, and that of a person, not an inhabitant, dying in the county, not leaving assets therein but assets coming into the county after his death, are both unprovided for in terms by the above section of the statute ; though if a non-inhabitant die out of this state under these circumstances, the proving of his will is regulated. The statute declaring the general powers of the surrogate, it will be re- membered, authorizes him "to take the proof of wills of real and per- sonal estate, in the cases prescribed by law ;" and farther enacts, that his powers "shall be exercised, in the cases, and in the manner pre- scribed by the statutes of this state."(j>) It has been considered, with reference to the similar cases to those above specified alike unprovided for, in respect to the granting of administration, that there cannot, in the nature of things, be any reason why the administration of the assets of a non-inhabitant dying in the county, should not belong to the surrogate as well as that of a non-inhabitant dying out of the state, and that the argument lor the, power in the former instance, is stronger than in the latter;(2') and it would seem, notwithstanding the restrictive clauses of the statute above quoted, that provided the fact be estab- lished, that assets of the deceased have come into the county since his death, or were here at that time, the surrogate has jurisdiction. A will of personalty, valid according to the law of the domicil of the testator, but not valid according to the law of the place where it was made, may be proved before the surrogate, under a commission issued for the examination of "foreign witnesses.(r) There is in the Surrogate's Court, both jurisdiction to take the proof and the means of taking it.(s) The Surrogate's Court proceeds in all matters relating to the probate of wills, and the administration of the estates of deceased persons, ac- cording to the course of common and ecclesiastical law, as modified by statutory regulations. Where jurisdiction is given by statute, the mode of exercising it in cases not specially provided for, must be regu- lated by the court in the exercise of a sound discretion, according to circumstances. (0 (n) S. L. 1837, 524; 2 R. S. (4th ed.) 418, sec. 2. (o) Ante, p. 19 ; 2 R. S. 220 ; 4th ed. 418, see. 1. M 2 R. S. 220; 4th ed. 518, sec. 1. See Ante, ^. 19. Tq) Kohkr v. Rnapp, 1 Bradf. Suit. Rep. 241. M See see. 71, S. L. 1837, 537 ; 2 R. S. (4th ed.) 420, see. 11., Ls) Ishamy. Gibbons, 1 Bradf. Surr. Bep. 69, 79. fj Campbell v. Logan, 2 BradC Surr. Rep. 90. PEOTING WILLS OP INHABITANTS OF THE COUNTY, ETC. 141 Of the Proving of Wills of Inhabitants of the County — Of the Preliminary Proceedings. It is proposed, in the first place, to consider the proving of wills, under the first subdivision of the above section of the statute, namely, the proving of the wills of persons who, at or immediately previous to their deaths, were inhabitants of the county of the surrogate. This subdivision, it is manifest, embraces by far the greatest portion of the • wills brought before the surrogate. The preliminary proceedings are alike in all such cases, whether the will relate either to real or to per- sonal estate, or to both. The following sections of the statutes prescribe such preliminary proceedings. They are general in their terms, and in respect to real estate, extend to all cases within the jurisdiction of the surrogate, of whatever place the deceased may have been an inhabitant, except where the Supreme Court has jurisdiction to take the proof of the will, as above specified. Sec. 4. The executor, devisee or legatee, named in any last Avill, or any person interested in the estate, may have such will proved before the proper surrogate.(M) Sec. 5. On application to the surrogate, he shall ascertain, by satis- factory evidence, the following facts : 1. If the will relate exclusively to real estate, the names and places of residence of the heirs of the testator, or that upon diligent inquiry the same cannot be ascertained; 2. If the will relate exclusively to personal estate, the names and places of residence of the widow and next of kin of the testator, or that upon diligent inquiry the same cannot be ascertained ; 3. If the will relate to both real and personal estate, the names and places of residence of the heirs, widow and next of kin of the testator, or that, upon diligent inquiry, the same cannot be ascertained. Sec. 6. The surrogate shall also ascertain whether any and which of the persons mentioned in the preceding section are minors, and the names and places of residence of their general guardians, if they have any ; and if there shall be no general guardian within this state, the surrogate shall, by an order to be entered, appoint a special guardian for such minor, to take care of his interest in the premises; and the written consent of every person so appointed special guardian to serve as such, shall be filed with the surrogate. The testamentary guardian named in the will to be proved, shall not for this purpose be deemed a general guardian. (w) Sec. 7. The surrogate shall thereupon issue a citation, requiring, the proper persons, at such time and place as shall be therein mentioned, to appear and attend the probate of the will. The citation shall state who has applied for the proof o£ the will, and whether it relate exclu- sively to either real or personal estate, or to both real and personal estate. It shall be directed to the proper persons by name, stating their places of residence, or if any of them are nftiors, to their guar- dians, by name, stating their places of residence. If the name or place (m) S. L. 183f, 524; 2 R. S. (4tli ed.) p. 248. {v) S. L. 1837, 525 ; 2 R. S. 66, sec. 49 ; 4tl 4th ed. p. 248. 142 PROVING WILLS OP INHABITANTS OF THE COUNTY, ETC. of residence of any person -who ought to be cited, cannot be ascer- tained, sucli fact shall be stated in the citation. Sec. 8. The citation shall be served on the persons to whom it is di- rected, as follows: 1. On such as reside in the same county with the surrogate, or an adjoining county, by delivering a copy to such person at least eight days before the day appointed for taking the proof; or by leaving a ' copy at least eight days as aforesaid, at the dwelling-house or other place of residence of such person, with some individual of suitable age and discretion, and under such circumstances as shall induce a reason- able presumption in the mind of the surrogate, that the copy came to the hands or knowledge of the person to be served with it in time for him to attend the probate of the will; 2. On such as reside in any other county in this state, by delivering a copy personally to such person, or leaving it at his dwelling-house or other place of residence, in the manner and under the circumstances above men- tioned, at least fifteen days before the day appointedfor taking the proof; 3. On such persons, as do not reside in this state, citations may be served by delivering a copy personally to such persons, or leaving it at his or her dwelling-house or other place of residence, not less than fif- teen days, nor more than ninety days before the day appointed for ta- king proof of any will ; and on such persons as do not reside in this state, or wliose places of residence cannot be ascertained, by publishing a copy of the citation in the state paper for six weeks previous to the day appointed for taking the proof.(w) Sec. 9. Before proceeding to take the proof of any will, the surrogate shall require satisfactory " evidence, by affidavit, of the service of the citation, in the mode "prescribed by law. If it has not been duly served on all the persons who ought to receive notice, the surrogate may ad- journ the proceeding, and issue a further citation for the purpose of bringing in such persons.(a!) {w) S. L. 1831, 525 ; S. L. 1840, 325 ; 2 R. S. 66 ; 4th ed. 248-9. (x) S. L. 183T, 526; 2 R. S. (4th ed.) 249. Previous to the law of 1831, the preliminaiy proceedings on proving wills of real estate were prescribed by the following provisions of the Revised Statutes : Sec. 7. When any real estate shall be devised by will, any executor or devisee named therein, and any person interested in such estate, may have such wiH proved before tlje sur- rogate of the county to whom the probate of the wUl of the testator would belong. In re- spect to personal property, under the sepond article of this title ; and if there be no such surrogate, then before the surrogate of any county in which any real estate devised by such will shall be situated. Sec. 8. The person intending to apply for the proof of such wiH, shall give notice of his intention to the heirs of the testator, as follows : 1. To such heirs as reside in the county where such proof is intended to be taken, by serving such notice personally, at least fifteen days previous to such appUcation ; 2. To such heirs as do not reside in the county, but reside in the state, by serving the same personally twenty days previously ; , 3. To such heirs as cannot be found in the state, and to such as do not reside therein, by serving such notice personally, twenty days previously, or by publishing it once in each week, for six weeks, in tl^ state paper. Sec. 9. If any of such Imrs shall be minors, and have guardians, service of such notice shall be made upon such guardians, in the same manner as prescribed in the last preceding section. If they shall have no guardians, the surrogate shall appoint guardians to take care of their interests in the premises. See 2 R. S. (2d. ed.) 57. ' These provisions were repealed by the 71st section of the law of 1837. See S. L. 1837, PETITION FOR THE PROO?. 143 Of the Petition for the Proof. The above sections of the statute, numbered 5 and 6, plainly con- template an examination before tbe surrogate to enable him to ascertain tbe facts tlierein designated ; but the uniform practice lias been for the executor, or other person, to commence the proceeding for the proof of the will, by presenting to the surrogate a written petition under oath, drawn in the form now to be described, and embodying the facts spo- ken of in these sections ; and no other evidence as to those facts has been deemed necessary. This course of proceeding, although probably not in strict accordance with the intentions of the legislature in enact- ing these sections, will be found substantially to comply with their requirements. It is now well settled, and is therefore adopted in this work. The petition must allege the death of the deceased and the time thereof, and that he was at or immediately previous to his death an inhabitant of the county. It must state the making of the will, and whether the same relates to real or personal estate, or to both. If it relate to real estate, the competency of the deceased to devise real estate may properly be averred. All the facts directed by the above 5th and 6th sections to be ascertained must then be set forth. The heirs and next of kin referred to, are those persons to whom the real estate of the deceased would have descended, or who would have been entitled to share in the distribution of his personal property, if he had died intestate. The heirs are determined by the Statute of Descents, (1 R. S. 750 ;)(?/) the next of kin by the Statute of Distribution, (2 R. S. 96.)(z) The heirs and next of kin are usually the same persons. The question, who constitutethe next of kin, will be found particularly dis- cussed in that part of this work where the distribution of the personal property, in cases of intestacy, is considered.(z!) If one of the heirs, or ' next of kin, or the widow, has died subsequently to the death of the decedent, that fact should be stated in the petition, and the proper representatives of such deceased heir, or next of kin, or widow, as to his or her real or personal estate, should be mentioned, and made par- ties to the proceeding. In setting forth the heirs and next of kin, the manner and degree of their relationship to the deceased should be given, as well as their names. If the deceased left children, and descendants of deceased children, the names of the former should be first recited, designating them as such, and then the names of the descendants of a deceased child, describing them as descendants of such child, giving his or her name ; and so with brothers and sisters, and children of de- ceased brothers and sisters, or any other relatives, entitled in distribu- tion in cases of intestacy. This is the form an examination before the surrogate would properly take, and it is useful, also, as showing more 536. But this recital of them is necessary, in order to render intelligible some of the subse- quent provisions relating to the present subject. [y) By the principal provision of the Statute of Descents, the.reai estate of every person who shall die without devising the same, shall descend in manner following: 1. To his lineal descendants; 2. To his father; 3. To his mother; and 4. To Ms collateral relatives: sub- ject, in all cases, to the rules and regulations thereinafter prescribed. (z) See Post, chap. 12. 2^44 PETITION FOE THE PROOF. distinctly the correctness of the statement. If the will relate to per- sonal estate, the name of the -widow must be given ; if there be no widow that fact should be mentioned. The residences of all the per- sons named must be set forth. Where the name or residence of any party cannot, upon diligent inquiry, be ascertained, it should be so de- clared. If either of the next of kin be a married woman, the name and residence of her husband should- be set forth. If any of the parties be minors, such parties should be so described, and if either of such par- ties have a general guardian within this state, his name and residence must be inserted.- If either of the minors have no general guardian, that fact should be alleged. The prayer of' the petition is, that the al- leged last will and testament may be proved, and letters testaraentary . thereof granted according to law. (For form of petition, see Appendix, No. 1.) As the petition is in the place of a judicial examination, and as such examination could not properly be had otherwise than under oath, the petition is required to be sworn to by the petitioner. (For form of jurat to the petition, see Appendix, No. 1.) Ilie oath should doubtless be taken before the surrogate or officer performing the duties of the office of surrogate. In the county of Kings, the clerk or clerks, and in- the county of New York, the assistants appointed by the surrogates of those counties respectively, in pursuance and by the authority of the several acts of the legislature, at a previous page particularly quoted and re- ferred to,(a) are qualified to administer this oath, and the petition has been held- sufficiently verified if sworn to before a commissioner of deeds, or other usual officer authorized to administer oaths. If a married woman be executrix or legatee, devisee, or otherwise interested, so as to propound the will, it is the practice to require her husband to join with her in the petition, as the wife alone is not com- petent to be a party to the record. By the above section, numbered 6, if either of the parties is a minor, having no general guardian within this state, the surrogate shall, by an order to be entered, appoint a special guardian for such minor, to take care of his interest in the premises ; and the written consent of every person so appointed special guardian to serve as such, shall be filed with the surrogate. (I'or forms of consent and order of appointment, see Appendix, Nos. 2 and 3.) The phrase ^'■general guardian" used in the section, includes guardians whether testamentary or appointed by deed, the late Court of Chancery, the Supreme Court, or the Surrogate s Court, excepting a testamentary guardian named in the will in ques- tion. In a case before the surrogate of the county of New York, 'a special guardian was appointed for an infant married woman. A spe- cial guardian, on proving the will, is appointed for minors residing out of the jurisdiction of this state. It is usual to appoint only a single special guardian for all the minors in any case ; although it sometimes happens that the interest of some of the minor heirs, or next of kin, from being preferred by the will as devisees or legatees, may be to sup- port the proof of the will, whilst that of others, from want of such pre- ference, may be to oppose such proof. (a) S. L. 1849, 235 ; 1 E. S. (4th ed.) 699 ; S. L. 184T, Vol. n, 560; S. L. 1860, 384 j Ante, 15 ISSUING AND SERYICE OF THE CITATION. 145 Of the Issuing and Service of the Citation. The petition having been filed, a citation issues for proving the will. The above section, numbered 7, prescribes the form of such citation. It must require " the proper persons" to appear and attend the probate of the will. The ^'■proper persons" are, n the will relate to both real and personal estate, the widow, heirs and next of kin of the deceased ; if it relate to real estate only, then the heirs alone are the persons in- tended ; if it relate to personal estate only, then the widow and next of kin are the "proper persons." All the parties are named in the same citation. It must be directed to them by name, stating their places of residence. If either of the heirs or next of kin be a married woman, the practice is to direct the citation to both the husband and wife ; but since the passage of the acts giving to a married woman the same right as Stfeme sole in her separate property,(6) if the decedent has died since the enactment of those statutes, there seems to be no necessity for citing the husband.(66) If any of the parties be minors, the citation runs to their guardians, whose residences must be stated. If the minor have a general guardian in this state, the citation must be directed to him. Where the infant next of kin had a general guardian in this state, who was interested under the will against the infants, and the surrogate issued the citation directed to such general guardian, and did not ap- point a special guardian, it was held that his proceedings were regular. The surrogate neither had, nor could have, any knowledge of any sup- posed hostile interest to the infants, growing out of the provisions of the will which he had not yet seen. ' Even if he had known all the facts as they subseqently appeared, he had no right, it was considered, to super- sede the statute, if he found it defective, or to disobey its injunctions, because it made no provision for a case of hostile interests like that of the guardian and the infants. " If any real injury," it was said, " had been done to the interests of the infants, by the guardian's neglect, he would be responsible to the infants. But the surrogate, who pursued the exact directions of the statute, and when he could not know of the ob- jections to that course, did not lose his jurisdiction by obeying the stat- ute. He could not have removed the guardian without a proceeding having been instituted for that purpose, however improper that ap- pointment may have been. He must regard him as the legal guardian, and proceed as in any other case where a general guardian has been appointed before."(c) If the minor has not any general guardian in this state, the citation runs to the special guardian who has just been ap- pointed by the surrogate. If one of the heirs, or next of kin, or the widow, has died subsequently to the death of the decedent, the legal representatives of such person, as to his or her real or personal estate, are proper persons to be included in the citation. If the name or place of residence of any person who ought 1;o be cited, cannot be ascertained, such fact must be stated in the citation. The name of the person ap- plying for the proof, and the description of the estate, whether real or (J) S. L. 1848, ch. 200; S. L. 1849, ch. 315; 2 E. S. (4th ed.) 331. (66) Bleecker v. Lynch, 1 Brad£ Surr. Eep. 458 ; Keeney v. Whitmarsh, 16 Barb. S. 0. Eep. 141. • • (c) Keeney v. Whitmarsh, 16 Barb. S. 0. E. 141. 10 146 ISSUING AND S:fiRVICE OF THE CITATION. personal, to whicli the will relates, must be stated. It is usual to insert the date of the will in the c'itation, but that is unnecessary. An order must be entered for issuing the citation. (For forms of the order and citation, see Appendix, Nos. 4-5.) The 8th section, given above, as amended by the act of 1840, pre- scribes the mode of service of the citation. If either of the parties be a married woman, the citation is commonly served on both herself and her husband. It was a question, previous to the acts of the 7th April, 1848, and 11th April, 1849,((i) for the more effectual protection of the property of married women, whether the service of the citation to the heirs and next of kin, to attend the probate of a will, upon one of them, who was a feme covert, was a sufficient service, without a service there- of upon her husband. In Bibby and others v. Myer,{e) there was a strong intimation that service upon the wife alone was suf&cient. " The statute," said the Chancellor, " directs the citation to be served upon the heirs and next of kin of the testator, if they can be found. But it does not in terms require it to be served upon the husband, as well aS upon the wife, where the heir and next of kin is a feme covert. The wife is, in fact, the real party whose rights, as heir and next of kin, the legislature intended to protect by requiring the notice of the proceed- ings to prove the will." In that case, where a will had been estab- lished and admitted to be recorded by the surrogate, upon service of the citation upon one of the heirs at law and next of kin, who was a mar- ried woman, without serving it upon her husband, it was held that the husband could not apply, in his own name only, to set aside the decree ; but, that the application must be made in the name of the husband and his wife jointly, if the proceeding upon the service of the wife only was irregular. Since the passage of the acts referred to, and where the de- cedent has died since the enactment of those statutes, there seems to be no doubt of the regularity of the. service of the citation upon a married woman, heir, or next of kin alone.(/) It is thought, however, to be the most prudent course to serve a citation on the husbands oi femes covert, as well as on themselves, although it is not required by the act, either expressly or by implication.(g') Where there are minors, the service is on the general or special guardian, as the case may be, named in the citation, and not on the minors themselves. (For forms of affi- davits of service, see Appendix, ISTo. 6.) The statute makes provision for the service of the citation on every person named therein residing in this state, either personally or by leav- ing a copy at the residence of such person with an individual of suit- able age and discretion, and under such circumstances as to induce a reasonable presumption in the mind of the surrogate, that the copy came to the hands or knowledge of the person intended in time for him to attend the probate. There is not any express provision for the case of a person residing in this state, but who at the time of the service is ab- sent from his residence, either in a remote part of this state, or out of (d) S. L. 1848, oh. 200 ; S. L. 1849, ch. SYS. (e) 10 Paige's Ch. Rep. 220. (/) JSleecker v. Lynch, 1 Brad£ Suit. Eep. 458-463 : Keeney v. WMtmarsh, 16 Barb. S. C. Eep. 141. (g) Per Gridley, J., 16 Barb. S. C. Rep. 144. ISSUING AND SEEVICB OF THE CITATION. 147 tTiis state. Indeed there is not any provision for giving tiie surrogate information of such a state of facts, although it may very frequently occur. The last clause of the first subdivision of the above eighth sec- tion of the statute will, however, apply to this case, and where the ser- vice is by copy, the surrogate, in oi'der to be justified in believing that the copy came to the hands or knowledge of the person to be served with it in time for him to attend the probate, is bound to inquire where such person was at the time of such service, and if it should prove that he was absent from his place of residence in a distant part of this state, or out of this state, and that he could not or did not return or receive the copy in time to be present or to be represented at the probate, the surrogate is bound to adjourn the proceedings, and issue another cita- tion to bring in such person. The third subdivision of the eighth section, provides for the service of the citation on persons residing out of this state, or whose place of residence is not known. This subdivision, as it was originally enacted in 1837, was as follows: "On such persons as do not reside in this state, or whose places of residence cannot be ascertained, by publishing a copy of the citation in the state paper for six weeks previous to the day appointed for taking the proof; and by putting in the p.ost-ofiice, directed to such persons whose place of residence is known, at such place of residence, a copy of such citation, six weeks at least previous to such day."(A) Under this provision the practice was plain, where the residence of the party but of this state was known, service both by pub- lication and by mail was required. ■ The amendment of 1840 authorizes a service of the citation on the persons named therein whose residence is known personally or by copy, out of the state, and service through the post-office is dispensed with. But whether or not it was the inten- tion of the legislature to provide for actual service out of the state as a substitute for service through the post-office, publication for six weeks being required in either case, is perhaps not entirely clear. The prac- tice under this subdivision has been, however, to regard the two seve- ral clause's as providing alternatives for the service of the citation in cases of non-residents, and allowing of publication alone, whether the place of residence of the non-resident is known or not known.(i) The above section, numbered 9, provides, that before proceeding to take the proof of any will, the surrogate "shall require satisfacimy evi- dence^ hy affidavit, of the service of the citation, in the mode prescribed by law." This language has been considered by some imperatively to (7i) S. L. ISSt, 526. (i) The Revised Statutes, previous to the act of ISST, provided, in respect to the proof of wills of real estate, that notice of the intention to apply for the proof of the will should be given to such heu's as could not be found in the state, and to such as did not reside therein, by serving such notice personally, twenty days, previously, or by publishing it once in each week, for six weeks, in the st^e paper, (2 E. S. 57, sec. 8 ;) and, in respect to wills of personal estate; that the citation should loe personally served on the widow and next of kin, if they were in the county, six days, at least, before the return thereof; and if not in the county, and whenever personal service was not made on the next of kin, by publishing the same at least two weeks, in such newspaper in the state as the surrogate should deem most likely to give notice to the relatives of the deceased. (2 R. S. 60, sec. 24.) The practice, under the present statute, in respect to service of the citation on non-residents, is the same as that for- merly prescribed by the Revised Statutes for service of notice in the like case for the proof of a will of real estate. J48 ISSUnSfG AND SERVICE OF THE CITATION, preclude any other evidence, as to tlie service of the citation, than that of proof by affidavit ; but the practice has been, notwithstanding, to re- ceive admissions of service of any of the parties, in lieu of affidavits of service. Such admissions, however, must be duly proved or acknowl- edged. If a party appear in person, on the return day of the citation, that has been deemed sufficient in the place of an affidavit of the ser- vice of the citation upon him. The appearance of a party by an attor- ney at law, has also been recognized as sufficient. On the 'return day of the citation, it is a proper precaution to enter the appearances of all the parties who appear in the matter, and the default of all those who have been served with the citation, or who have admitted service thereof, and fail to appear. If the citation has not been duly served on all the persons who ought to receive notice, or their admissions of service have not been obtained, or they do not duly appear, the surrogate, under the last clause of the above 9th section of the statute, may adjourn the proceeding, and issue a further citation, for the purpose of bringing in such persons. An order must be entered for the adjournment and for the issuing of the further citation. It should contain a recital as to the appearances and defaults of parties ; it should state those on whom the citation has not been served, or who have not admitted service and do not appear, and should order a further citation to issue, and the matter to stand ad- journed until the return day of such further citation. (For form of the order and of the further citation, see Appendix, 'No. 7.) The foregoing provisions of the statutes, and remarks relative to the issuing and return of the citation, govern the proving of nearly all wUls in the Surrogate's Court, where the decedent was, at or immediately previous to his death, an inhabitant of the county ; but there are some cases to which they do not apply. Those cases are, where the party or parties alone entitled to oppose the proving of the will, shall take the proceedings before the surrogate. There is, in such cases, no one to whom to issue the citation. If the deceased has left an only son of full age, and no widow, and the son apply for the proof of the will, the sur- rogate, on being satisfied of those facts, will proceed forthwith to the examination of the witnesses. So, Avhen the parties are numerous, as, for instance, a widow, heirs and next of kin, and aU join in the appli- cation, he will do the same ; and even where there are minors, if the special guardian waive service of a citation, and consent to the imme- diate examination of witnesses, the surrogate will proceed at once to the proofs. And a party opposed to the probate of the will, may make or join in the application, so as to bring on an immediate exam- ination of the Avitnesses, and an early decision in the matter. The petition, in such cases, will be similar in almost every particular to that before described as proper in the usual case. The widowhood, or the degree of relationship, and the place or places of residence o/ the petitioner or petitioners, the fact that the petitioner or petitioners is or are of full age, and that there are no other heirs or next of kin of the deceased, should be distinctly averred. .The prayer will be, that the surrogate forthwith proceed to take the proof of the will. If there be more than one petitioner, they must all swear to the petition. A mi- PROCEEDINGS FOE THE PROOF. ^ 149 nor, of course, cannot join in the petition, but if his special guardian be present, he may, in his discretion, for the purpose of saving time, waive service of the citation, and consent to the immediate examina- tion of witnesses in the matter, and thus expedite the proceedings. The waiver and consent must be in writing, and must be filed with the surrogate. If the surrogate be satisfied with the evidence contained in the petition,(y) and the special guardian, if there be one in the case, gives the required waiver and consent, he will make an order that the examination of the witnesses be forthwith entered upon. Such order should recite a summary of the facts as established by the petitioner or petitioners, and should state the appointment of the special guardian, and the filing of his waiver and consent, if such has been the case, and allow and direct the proofs to be immediately taken. The witnesses may thereupon be examined, and the other proper steps may then be taken for obtaining the probate or rejection of the will. The practice thus pointed out avoids all delay in proving the will, and may be pur- sued with great facility in many cases in which it has been usual to go through with the ordinary proceedings by citation. (For forms of pe- tition and order for immediate proo^ see Appendix, No. 8.) Of Proceedings for the Proof The citation having been returned duly served, or with proper ad- missions of service, or the parties having duly appeared, or an order for immediate proof having been granted, the testimony in the matter is next to be proQpeded with. The statutory direction is as follows : Upon proof being made of the due service of the citation, the surro- gate shall cause the witnesses to be examined before him. All such proofs and examinations shall be reduced to writing.(^) The proofs of service of the citation, the admissions of service, and their proofs, and the appearances of the parties, together with the evi- dence of the witnesses, must all be reduced to writing. The following sections of the Eevised Statutes make provisions with respect to witnesses, on proving wills in the Surrogate's Court Sec. 10. Witnesses may be summoned by subpoenas, to be issued by the surrogate, at any time before the day specified in the notice, [cita- tion,] (Z) which may be served as in eases of personal actions ; and a clause may be added to any such subpoena, commanding any person having the custody of, or power over the will, to produce the same before the said surrogate, for the purpose of being proved. (f) The surrogate may not deem the evidence furnished by the petition sufEeient. In such a case, further proof by witnesses must be presented. This remark applies to the pro- ving of wills, as well in the usual form as in the case under consideration, •'(ft) S. L. 1837, 526, sec. 10; 2 R. S. (4th ed.) 249, sec. 54. (Z) This section, as contained in the Reyised Statutes, is conformable to the then existing preceding sections, numbered 7, 8 and 9, prescribing the preliminary proceedings on notice J3n proving wiUs of real estaie, which were repealed by the Vlst section of the act of 1837. (See ante, pp. 142, 147, note ; S. L. 1837, 526.) By the 18th section of the act of 1837, this sec- tion is made applicable to the present proceedings by citation, in the same manner that it formerly apphed to proceedings on notice. The word citation may therefore be substituted In the section for the word notice, and the section win then become iateUigible with refer- ,eace to the present proceedings bj citation. 150 PROCEEDINGS I'OE THE PROOF. t Sec. 11. Disobedience to any such subpoena shall be proceeded against and punished, as in other cases of proceedings before surrogates. If any person be committed for not producing any will, he may be dis- charged on producing the same to the surrogate who committed him, by an order for that purpose.(m) Sec. 19. The witnesses shall have the like fees for their attendance on proving a will, as are allowed for similar services in personal actions,, to be paid by the person applying to have such will proved.(w) The subpoena, as has been seen,(o) must be similar in form to those used in courts of record ; and disobedience to the same, or the refusal • of the witness to testify after appearing, may be punished in tlje same manner, and to the same extent, as in similar cases in courts of record, and by process similar in form to that used by those courts. An entry of tie issuing of the subpoena must properly be made in the surrogate's minutes.(p) (For form of entry, form of subpoena to witnesses to prove a will, and form of attachment for disobedience thereto, see Appendix, No. 9.) The above sections, numbered 10 and 11, (2 E. S. 68,) formerly ap- plied only to the proving of wills of real estate ; but now, by the 18th section of the act of 1837,(g') they are applicable to wills of both real and personal estate, or either, and the 10th section applies to the pres- ent proceedings by citation in the same manner that it formerly apphed to proceedings on notice. The above section, numbered 19, it would seem, is now strictly applicable only to the proving of wills of real estate, but the witnesses are, without doubt, entitled to the same com- pensation in all cases. For present purposes, the will is supposed to be in the possession of the party offering the same for proof, and produced before the surro- gate. The case of a will in the possession of a person refusing to offer the same for probate, will hereafter be treated (tf. The application for probate of a will of personal estate as has already been observed, may be made either by an executor or by any other person interested in the estate under the will; and where the executor institutes proceedings in his own name only, any other person who has an interest in establishing the will, and who would be precluded if the decision was against its validity, has an unquestionable right to inter- vene, and thus make himself a party to the proceeding, if he is unwill- ing to trust the protection of his rights to the party by whom such proceedings were instituted ;(r) and they probably have the same right to come in as interveners to protect their rights on appeal. But in either case they must come in by a petition in the proper form, and (m) 2E. S. 58; 4th eA 242. (n) 2 R. S. 59; 4th ed. 243, Bee. 16. Witnesses^ /ee«..— For each witneas, fifty cents, for each day, while attending any court or officer, and if the witness resides more than three miles fi-om the place of attendance, travelling fees at the rate of four cents per mile,, going and returning S. L. 1840, oh. 386, sec: 8 ; 2 R. S. (4th ed.) 831. ip) Antei p. 22. (p) See 2 E. S. 222 ; Ante, p. 25. (q) S. L. 183T, 538. (»•) Law's Pr. Eocl. Courts, 10, tit. 29 ; Cookburn, eh.. 6, sec. 12 ; Couset, part 6, ch. 1, seo- 1„ art. 18, p. 214. Wabh v. SMcm, 1 Bradf. Surr. Rep. 433. TAKING THE TESTIMONY. 151 make themselves parties to the proceedings, before they can be per- mitted to take any part therein.(s) Where the codicil to a will revoked a legacy given by the will, it was held, that though the statute does not in terms give to any person the right to appear and contest a will offered for probate, except the widow, heirs and next of kin, yet, if the legatee filed an application for the proof of the will as authorized by the act of 1837,(i!) she might be permitted to intervene, and to oppose the proof of the codicil, (it) In the matter of the probate of the last will and testament of James Malcolm, deceased, before the Hon. Jesse 0. Smith, surrogate of the county of Kings, the will offered for probate, was contested for undue influence. A legatee under a prior will, and who also had a smaller legacy under the will offered, but who was not a next of kin, claimed a right to intervene, and to oppose the probate of the will offered for probate, and it was held, that he had such an interest as entitled him so to intervene. A person intending to oppose the proving .of a will, must appear before the surrogate, either in person, or by attorney, proctor or coun- sel, on the return day of the citation, or in a case where it has not been necessary to issue a citation, on the day fixed for taking the proofs. Of taking the Testimony. The parties and witnesses being now before the surrogate, the exam- ination commences. Where a person appears before a surrogate to oppose the probate of a will, he is bound, if the adverse party dispute his interest, to pro- pound the same, or show his right to contest the will. If issue be taken on the allegation of interest, the evidence in relation to that ques- tion, and that which relates to the validity of the will, should proceed pari passu. A person claiming as next of kin, whose title as such is disputed, should, in his allegation of interest, show how he was related to the deceased.(v) Where two instruments of a testamentary character are propounded by different parties, the several applications for probate will be consol- idated and tried together. (i<;) The opponent of the probate is not obliged in any stage of the proceedings to define his objections to the will, nor is there any system of allegations or pleading to control either party in his mode of carrying on the litigation. The greatest liberality prevails with respect to the topics and extent of investigation and in- quiry, and the testimony is- often exceedingly discursive, protracted and tedious. (s) Foster y. Tyler, 1 Paige, 52. h See S. L. 1831, 524, sec. 4; 2 R. S. (4th ed.) 248; Ante, p. 141: (u) Walsh V. Syan, 1 Bradf. Surr. Kep. 433. (v) The Public Admixdsl/raUyr of New York v. Watts & Le Boy, 1 Paige, 34Y. {w) Van Wert v. Benedict, 1 Bradf Surr. Eep. 114. 152 NECESSARY WITNESSES. Of the Necessary Witnesses. , The proof which must be taken for the establishment of a will, is prescribed by the following provisions of the statutes : Sec. 10. Two at least of the witnesses to such will, if so many are liv- ing in this state, and of sound mind, and are not disabled from age, sickness or infirmity from attending, shall be produced and examined ; and the death, absence, insanity, sickness or other infirmity of any of them, shall be satisfactorily shown to the surrogate taking such proof; the surrogate shall inquire particularly into the facts and circumstances before establishing the same, or granting letters testamentary or of ad- ministration thereof (a;) Sec. 11. In case the proof of any such will is contested, and any per- son having the right to contest the same shall, before probate made, file with the surrogate a request in writing that all the witnesses to such will shall be examined ; then all of the witnesses to such will, who are living in this state and. of sound mind, and who are not disabled from age, sickness or infirmity, from attending, shall be produced and exam- ined ; and the death, absence, insanity, sickness or other infirmity of any of them, shall be satisfactorily shown to the surrogate taking such proo£(?/) ■ Sec. 17. No written will of real or personal estate, or both, shall be deemed proved, until the witnesses to the same, residing within this state at the time of such proof, of sound mind and competent to testify, shall have been examined pursuant to law, as above prescribed; and in all cases the oath of the person who received the will from the testa- tor, if he can be produced, together with the oath of the person pre- senting the same for probate, stating the circumstances of the execution, the delivery, and the possession thereof, may be required ; and before recording any will, or admitting the same to probate, the surrogate shall be satisfied of its genuineness and validity.(z) {a) S. L. 1837, 526 ; 2 R. S. (4tli»ed.) 249, sec. 54. (y) S. L. 1837, 526 ; 2 R. S. (4th ed.) 249, sec. 55. (2) S. L. 1837, 527 ; 2 R. S. (4th ed.) 251, sec. 64. The 12th section of the article of the Rerised Statutes, coneeming "wills of real property, and the proof of them," provided as follows: "All the witnesses to such will, who are living in this state, and of sound mind, shall be produced and examined ; and the death, absence, or insanity of any of them, shall be satisfactorily shown to the surrogate taking such proof" 2 R. S. 58. The statute relative to " wiUs of pej-sonal property, and the probate of them," contained the following enactment : Sec. 26. Writteij wills of personal estate offered for probate, shall be proved by one or more of the subscribing witnesses, or if they be dead, insane, or out of the state, then by proof of the handwriting of the testator, and of the subscribing witnesses. 2 R. S. 61. These pro- visions were repealed by the 7lst section of the act of the 16th May, 1837, (S. L. 1837, 536,) and by that act, the above sections numbered 10, 11 and 17 were enacted. "While section 12, above referred to, remained in force, a devise or bequest in a wiU disposing of real estate, to which the devisee or legatee was a subscribing witness, could be saved by thj provisions of seotidn 50, only where the devisee or legatee should be of unsound mind, or should reside out of the state when the will was proved. This confined to very narrow limits the operation of that section as applied to wills disposing of real estate ; while the different method of provmg wiUs of personal estate under the provisions of section 26, gave effect to the 50th section, in all cases where a single disinterested witness should satisfaoforily prove the due execution of the will." Caw against Roherison, 1 Selden, 126, per 'Grey, J. The learned editor or editors of the later editions of Kent's Commentaries, seem to have overlooked the repeal of the 12th section of the Revised Statutes. In a Note at p. 565, Vol. NECESSARY WITNESSES. 153 Sec. 20. If all the witnesses to a will shall be dead, insane, out of the state, or incompetent to testify, the surrogate may take and receive proof of the handwriting of the testator, and of the subscribing wit- nesses, and of such other facts and circumstances as would be proper to prove such will on a trial at law ; aud if such proof shall be satisfactory to the surrogate, the will may be admitted to probate, and be recorded as a will of personal estate only, and so as to affect only the personal estate of the testator, (a) The following provision is contained in that part of the Eevised Statutes declaring the proof requisite to the establishment of a will of real estate : Sec. 13. When any one or more of the subscribing witnesses to such will shall be examined, and the other witnesses are -dead or reside out of the state, or are insane, then such proof shall be taken'"of the hand- writing of the testator, and of the witness or witnesses so dead, absent or insane, and of such other circumstances as would be sufficient to prove such will on a trial at law.(&) The following sections of the statute make provisions regarding the competency of subscribing witnesses to a will : Sec. 6. If by any will an)' real estate be charged with any debt, and the creditor whose debt is so charged, shall attest the execution thereof, such creditor, notwithstanding such charge, shall be admitted as a com- petent witness, to prove the execution of such wlII.(c) Sec. 50. If any person shall be a subscribing witness to the execu- tion of any will, wherein any beneficial devise, legacy, interest or ap- pointment of any real or personal estate shall be made to such witness, and such will cannot be proved without the testimony of such witness, the said devise, legacy, interest or appointment, shall be void, so far , only as concerns such witness or any claiming under him ; and such IV, '!th edition, that section is spoken of as still in force, and with reference to the provision of the 50th section, that the beneficial devise, legacy, or interest to a witness, is void, in case "such will cannot be proved without the testimony of such witness," it is said: "There seems to be no room for the application of this exception, if all the witnesses must be pro- duced and examined." i "By this change of the statutes," says Mr. Justice Grey, in Caw v. RdberUon, "I think the legislature designed to place the proof of wills of real and of personal property (as the formalities required at their execution had before been placed) on the same footing ; and also to exUTid in regard to wills of real estate, and limit in regard to wills of personal estate, the benefits of section 50, before mentioned, to the cases where the execution of the will should not be contested ; and where proof of its due execution could be made by the number of witnesses indispensable to its validity, without calling upon the witness claiming a bene- ficial interest under it. These things the act of 1837 accomplishes, aud thus secures uni- formity, not only in the proof of wUls, but in the effect of provisions therein, in favor of sub- scribing witnesses, whether they relate to real or to personal estate, or to both ; and removes the incongruity, which before existed between sections 12 and 50. It may have been one object of the change, as was suggested by the learned justice^ who delivered the opinion in this cause, in the court below, (See BdberUon v. Gaw, 3 Barb. Sup. Ct. Rep. 410,) to relieve the executors or devisees having an interest in proving the will, from the labor and expense of producing all the witnesses beyond two. But I cannot thirik that this was the chief in- ducement to the repeal of section 13. The simplicity and convenience of a uniform system in the proof of wills, both of real and personal property, and the more just and equitible ap- plication of the provisions of section 50, are reasons, which, in my judgment, must have operated with much greater force in producing the change." (a) lb. 528 ; 2 E. S. (4th ed.) 251 sec. 66. (J) 2 R. S. 58. (c) 2 R. S. 57 ; 4th ed. 241. 154 NECESSARY WITNESSES. person shall be a competent witness and compellable to testify respect- ing the execution of the said will, in like manner as if no such devise or bequest had been made.(c?) The above 10th section imperatively requires the testimony of at least two of the subscribing witnesses to the will, if so many are living in this state, of sound mind, and not disabled by age, sickness or infirmity from attending. Where a subscribing witness is a devisee, or legatee, or otherwise interested under the will, and there are two other subscri- bing witnesses who attend and are examined, and the proof is not con- tested, or the person opposing the proof does not request the examina- tion of all the witnesses pursuant to the above 11th section, and the two witnesses examined prove the will to the satisfaction of the surrogate, the subscribing witness, who is a devisee or legatee, should not be called as an attesting witness.(e) Where two of the attesting witnesses are not legatees and a third is, it cannot be determined that the wiU can be proved, without the testimony of the legatee, until the others are ex- amined. If the testimony of the two sworn is not clear and satisfactory, then a case arises in which the will cannot be proved without the testi- mony of the third; and then, and not before the subscribing witness, legatee or devisee may be called and examined. And it would seem that there is not, in any case where there are three or more subscribing witnesses, any necessity for examining more than two witnesses, who satisfactorily prove the wUl, unless the proof is contested by some one having the right to do so. The above 17th section of the statute de- clares that no will of real or personal estate shall be deemed proved, unless the witnesses to the same, residing within this state, competent to testify, shall have been examined, as hereinbefore provided. When , twa witnesses are produced and examined, as required by section 10, by whom the will is satisfactorily proved, or when the proof of the wiU is contested, all the witnesses living in this state, competent to testify, and not disabled, are produced and examined, as provided in section 11, then the requisites of section 17 are complied with, so far as the necessity exists for the production and ex:amination of witnesses.(/) The above 17th section provides, also, for taking proof of the custody of the will ; and in the court of the surrogate of the county of New York, such proof was formerly, in nearly all cases, required, although the statute is not peremptory on the point ; but this practice has been discontinued, and now proof of custody is required only in litigated cases, and where a question as to the identity of the instrument arises. (For forms of the usual depositions proving the custody of the will ac- cording to this provision, see Appendix, No. 15.) (For forms of depositions proving the handwriting of the testator or of a subscribing witness u!nder the above sections, numbered 20 and 13, see Appendix, No. 16.) Before the witness is examined, an oath is administered to him by the surrogate, that the evidence which he shall give in the matter of proving the will in dispute, shall be the truth, the whole truth, and i: 'd) 2 R. S. 65 ; 4th ed. 247. (e) Gaw against Robertson, 1 Selden, 125. (/) Caw against Bobertson, 1 Splden, 125, per Grey, J. EXAMINATION OF "WITNESSES. 155 nothing but the truth. His testimony is committed to writing by the surrogate, and after the witness has subscribed the same, he is again sworn to the truth of his deposition. The statute, however, does not point out any mode or form in which the testimony shall be taken before the surrogate. It will be enough if it be attested by the solemnity of an oath, with full opportunity of examination for both sides.(g') Of the Examination of Witnesses residing in the same County, or in an- other County, disabled from attending. The following sections of the statutes, (the first of which has already been inserted, in connection with the previous subject, but is here, as it will be perceived, necessarily repeated,) provide for the taking of the testimony of aged, sick or infirm witnesses : Sec. 11. In case the proof of any will is contested, and any person having the right to contest the same, shall, before probate made, file with the surrogate, a request in writing that all the witnesses to such will, shall be examined ; then all the witnesses to such will, who are living in this state and of sound mind, and who are not disabled from age, sickness or infirmity, from attending, shall be 'produced and ex- amined : and the death, absence, insanity, sickness or other infirmity of any of them, shall be satisfactorily shown to the surrogate, taking such TpToof.{h) Sec. 12. If any such aged, sick or infirm witness, reside in the same county with the surrogate, it shall be the duty of the surrogate, after examining the other witnesses, to proceed without unnecessary delay, to the dwelling-house or other place of residence of such witness, and there, in the presence of sach persons as may choose to attend, pro- ceed to take the examination of such witness, in the 'same manner, and with the like effect, as though such witness had attended and been ex- amined before the surrogate on the return of the citation. Sec. 13. If such aged, sick or infirm witness, reside in a different county from the surrogate, and it shall not be probable that his attend- ance can be procured within a reasonable time, to which the surrogate may, in his discretion, adjourn the proceeding for that purpose, the sur- rogate may, in such case, after having examined the other witnesses, make an order adjourning the proceeding in his court, to some future day, and directing that such aged, sick or infirm witness be examined before the surrogate of the county in which he resides, and specifying some Monday, on or before which, the said order shall be delivered to the surrogate, directed to take the examination-: a copy of which or- der, under the seal of the surrogate making the same, together with the original will, shaU be delivered to the person applying for the pro- bate, to be transmitted to the surrogate directed to take the examina- tion.(t) Sec. 14. The surrogate by whona any such order and will shall be (g) Segume ■v. Seguine, 2 Barb. Sup. Ct. Eep. 395, per Edmonds, J. (A) S. L. 1837, 526 ; 2 R. S. (4th ed.) 249, see. 55. (j) S. L. 1837, 527 ; 2 E. S. (4th ed.) 250. 156 EXAMINATION OF WITNESSES. received, shall, on the Monday mentioned in such order, appoint a time and place for taking sucli examination, and give notice thereof to any person who may attend such surrogate, for the purpose of hear- ing such examination ; and at the time and place so appointed, or at such other time and place, as may be found necessary to designate by adjournment, the surrogate, in the presence of such persons as may choose to attend, shall proceed to take the examination of such aged, sick or infirm witness, in the same manner, and with the like effect, as though such witness had attended, and been examined before the sur- rogate, having original jurisdiction on the return of the citation. Such surrogate may issue subpoenas under his seal of office, to compel the attendance of any such witness or witnesses, for the purposes aforesaid, in like manner, and with the like effect, as in cases in which he has original jurisdiction. (/) Sec. 15. Such examination shall be reduced to writing, and be sub- scribed by the witness ; and the examination, together with a state- ment of the proceedings before the surrogate taking the same, ,shall be certified by him, under his seal of office, and be retui-ned without de- lay to the surrogate who ordered such examination. Sec. 16. Upon the deposition so returned, together with such other proofs as' may have been adduced before him, the surrogate to whom the original application was made, shall, on the day to which the pro- ceeding in his court had been adjourned, or as soon thereafter as prac- ticable, proceed to determine on the sufiiciency of the proof of any such will.(^) By the " Act concerning the Proof of "Wills," passed 22d of April, 1841,(Z) sec. 1, the foregoing sections, numbered 11, 12, 13, 14, 15 and 16, are made applicable to all witnesses whom any person interested in the proof of a will, shall request to be examined — whether such wit- nesses be subscribing witnesses to such will or not — provided the sur- rogate who has the power to take the proof of such will, is satisfied that the testimony of the witness so requested to be examined is ma- terial. By the second section of the same act, the provisions of the first section are made applicable to all cases of the proof of wills, whether the will be contested or not. And the third section of the same act declares, that no witness shall {j ) The urrogate, for any necessary travel required by these sections, is entitled to be paid at the rate of ten cents per nule, going and returning. S. L. 1837, 536 : 2 R. S. (4th ed.) 422. • The provision of the statute is as follows: "sec. 69, surrogates shall be paid the like fees, for services rendered, pursuant to this act, as they are now entitled to receive, for similar services; and for any necessary travel, required by the eighteenth and twentieth sections of this act, shall also be paid at the rate of ten cents per mile, going and returning." The 18th and 20th sections of the act, do not require any traveUing by the surrogate. The above 12th and 14th sections are the only sections of the act which contain any such re- quirement. The 69th section probably was framed with a view to a different numbering of the sections, from that which was finally adopted, when the bill passed the legislature. In insertmg this 69th section, m the 4th edition of the Revised Statutes, vol. II, p. 422, it is marked as the 68th section of the act of 1837, and a similar mistake occurs with respect to the 70th section. ^ ' (/c) S.. L. 1837, 527. 2 R. S. ■(4th ed.) 250. (Z) S L. 1841, 105. 2 R. S. (4th ed.) 250, 251. EXAMINATION OF WITNESSES. 157 be examined under the provisions of the said act, unless the party requesting such examination, shall have previously given written notice of the time and place appointed for such examinatioij, for such length of time, as is required in cases of trials of issues of fact in the Supreme Court, to all the parties who appeared before the surrogate before whom the proceedings to take the proof of any such will are pending. The request under the above section, numbered 11, should aver the capacity in which the party claims the right to contest the will. In other respects it may follow the words of the statute. If the contesting party, propose to have a subscribing witness ex- amined, Avho is disabled by age, sickness or infirmity, from attending before the surrogate, he must prove the residence of the witness, and if he reside in another county, that it is not probable that his attend- ance can be procured within a reasonable time, and then, after all the other witnesses have been examined, the surrogate, if the witness re- side in the same county, will proceed to his residence and take his examination ; or, if he reside in another county, will direct his exam- ination to be taken before the surrogate, of the county of his residence. Where a person, not a subscribing witness, being disabled from at- tending, is proposed to be examined, the contesting party, in addition to showing the residence and disability of such person, and where he resides in another county, that it is not probable that his attendance can be procured within a reasonable time, must, by the amendment of 1841, satisfy the surrogate, that the testimony of such person is mate- rial, and then, after all the other witnesses have been examined, his testimony may be taken before either the original surrogate, or the surrogate of another county, according to the residence of the witness. The residence of the witness, the improbability of his attendance, and the necessity for his examination, may appear by the testimony of the other witnesses in the matter, or may be shown by affidavit. By the amendment of 1841, the testimony of persons, whether subscribing witnesses or not, disabled from attending, may be taken, although the proof of the will be not contested. The surrogate, where there is no opposition to the proof, may of his own motion, proceed to take the testimony of a sick or disabled witness, at his residence in the same county, or where such witness resides in a different county, direct that he be examined before the surrogate of such county. The order directing the examination of a witness before the surro- gate of a different county from that to which the proof of the will be- longs, should set forth the names of all the parties who have appeared in the matter, in order that the surrogate who is to take the testimony may see, before proceeding to the examination, that due notice has been given, pursuant to the 3d section above quoted of the act of 1841. It should specify some Monday on or before which it must be placed in the hands of the surrogate directed to take the examination, and a copy of the same, together with the original will, is to be delivered •to the person applying for the probate, to be transmitted to the proper surrogate. The carriage of the order and will thus belongs in all cases 158 EXAMINATION OF WITNESSES. to the party propounding tlie will, althougli he maj not be the one requesting the examination of the distant witness. On the Monday fixed in the order, the surrogate who has received the same must appoint a time, which shou.ld not be less than fourteen days distant, and a place for taking the examination. The notice under the 3d section of the act of 1841, is one of fourteen days.(m) It should be served personally on all the parties who attended before the original surrogate, or in such a manner, and under such circumstances, as will justify a reasonable presumption that it reached the party in time to enable him to attend the examination. If any of the parties appeared by proctor or coxmsel, service of the notice on such proctor or counsel would doubtless be held sufficient. The special guardian of the minors, if there be any in the case, should be served with the notice. (For forms of request, af&davit to obtain the examination of a dis- abled witness, order directing the examination before another surro- gate, and notice of examination, see A-ppendix, ISTo. 10.) The notice of tbe examination of a disabled witness before the sur- rogate of a difierent county, having been duly given on the day ap- pointed, the examination is proceeded with. The surrogate taking the examination must reduce the testimony to writing, and forward ' the same, with a statement of the proceedings before him, certified under his seal of office, to the surrogate having the principal jurisdiction of the matter. The return will be merely a correct narrative of what, takes place at the examination, with the usual attestation of the surro- gate, under his official seal. Of the Examination of Witnesses residing out of the State. If a witness reside without the jurisdiction of this state, the surrogate may issue a commission to take his testimony in the same manner as by law the same may be done in any court of record, (n) The .practice on taking out a commission, will be similar, as near as may be, to that in the Supreme Court in the like proceeding.(o) The application. for a commission on proving a will, ought not to be made untJ after the return of the citation; or where a citation has not (m) 2 E. S. 410, see. T. Such, at any rate, was the notice at the time of the passing of the act of 1841. The statute was as follows: Sec. 1. Written notice of trial of every issue of fact, shall, in aU eases, be served at least fourteen days before the first day of the court, at which such trial shall be intended to be had. The provision" of the code of procedure is as follows: Sec. 266. At anytime after issue, and at least ten days before the court, either party may give notice of trial. This is, in some respects, an analogous question to that de- cided in Western v. Somaine, (1 Bradf. Surr. Kep. 37,) and upon the substantial principle of that decision, the rule of the Revised Statutes, prescribing fourteen days' notice, is still in force in the cases under consideration. 2 E. S. (4th ed.) 420, sec. 1 1. See ante, p. 6. (n) S. L. 1837, 537, sec. 77. (o) The practice on awarding a commission to take the testimony of foreign witnesses, is expressly regulated by statute, 2 E. S. 393 ; 4th ed. 638, et seq. Those provisions, as far as they are applicable to cases arising in the Surrogate's Court, are adopted in the directions here given. They distinctly prescribe the manner in which, " by law," commissions may be issued out of a court of record, and are thus exactly conformable to the words of the 77tli section of the act of 1837. EXAMINATION OF WITNESSES. 159 been necessary, until the appearance of the parties; because, until then, it cannot be known whether any, and if any, what persons may de- mand to join in the commission or to propose interrogatories. It ought to be made as soon after the return day of the citation, or where there has not been any citation, as soon after the day appointed for taking the proofs, as practicable. It may happen, that the necessity for ex- amining a foreign witness may not occur until duiing the progress of the investigation ; but there should be no delay in making the applica- tion for the commission after the necessity for the same has become apparent, and the surrogate will not regard with favor an application for a commission which has been improperly deferred, and where "the execution of the commission will postpone a decision upon the will. In order to obtain the commission, a motion must be made before the surrogate. Prepare an af&davit stating the names of the wit- nesseSj(p) and that they are material, as the party is advised by coun- sel and verily believes, and are without the state.(2') The affidavit for a commission may be made by a third person cognizant of the facts.(r) Ten days' notice of the motion must be given(s) to all the persons who have appeared on the proving of the will, and the notice must specify the names of three persons proposed as commissioners. The motion is to be brought on in the manner usual in courts of record. The opposite party may resist the application if he can show reason- able grounds on which it should be denied, it being in the discretion of the court to grant or refuse it.(^) He may also object to any of the commissioners proposed, on showing sufficient cause by afEidavit.(M) If the motion be allowed, an order in accordance therewith for the issuing the commission must be entered, and a copy of the same must be served on the other parties. A commission may issue' at the instance of the party offering the will for probate Avhere there is no opposition, if a subscribing witness or any witness resides out of this state, in which case plainly the pro- ceeding on taking out the commission is ex -parte. (For forms of affidavit to obtain a commission, notice of motion and order for commission, see Appendix, No. 11.) The commission 'is to be made out in a form similar to that ordinarily in use in courts of records. (See Appendix, No. 12.) Interrogatories must be drawn and settled conformably with the practice of the Supreme Court in such a case. These will of course vary according to the nature of the controversy upon the will. (For forms of direct interrogatories to a subscribing witness, embracing most of the usual inquiries in these examinations, see Appendix, No. 13.) They should be signed by counsel and settled before the surrogate, after the service of a copy on each of the opposing parties who h^ve ap- peared in the matter, and a notice of settlement of four days, within (p) 2 Johns. Gas. 68, 285. (?) 1 Wend. 65, &o. \r\ 1 Co wen, 210. (s) This is the time fixed by the statute, (2 R S. 393, see. 20,) in cases of application in va- cation to one of the justices, or to a circuit judge for an order for a commission, (i!) 3 Johns. Caa. 137. (a) 3 Johns. E. 250. IQQ EXAMINATION OF "WITNESSES. which four days the opposing parties must serve copies of their cross interrogatories, if they intend to prppose any, with a notice of settle- ment before the surrogate, of at least two days for the same time. At the time specified, the parties attend before the surrogate. Either party may except to the interrogatories of the other ; and the surrogate will decide on the exception. Further questions may also be proposed, and, if allowed, inserted among the interrogatories.(v) If no one attend on the opposite side, proof must be made by affidavit of service "of a copy of the interrogatories and notice of presentment for allowance. Although the mode thus pointed out for obtaining a commission out of the Surrogate's Court, for the examination of foreign witnesses, is that which is to prevail where a strict practice is required, the one usually adopted is not nearly so formal. The necessity for the exam- ination of a foreign witness being apparent, and being suggested by either party, an order that a commission issue is commonly entered at once, the commissioner or commissioners having been agreed upon. Interrogatories are then settled by agreement, or where the parties dif- fer, upon convenient notice before the surrogate. The interrogatories being thus settled, the surrogate will then indorse his allowance of them, and annex them to the commission ; and' upon the commission he will direct the manner in which it shall be returned. This is commonly by mail, xmder the provision of the statute.(w) The parties, or their attorneys, may in writing agree on the manner in which a commission for the examination of witnesses may be returned ; and on filing such agreement with the clerk of the court, (in the present case with the surrogate,) the attorney for the party or the party suing out the same, may indorse thereon a direction according to such agree- ment; and such commission shall be returned accordingly.(a;) The return should in all cases be addressed to the surrogate, as the original will is nearly always annexed to the commission, and that should not, after having been submitted for proof and before probate, be allowed unnecessarily to go out of the custody of the surrogate. To the commission must be annexed a copy of section 16, article 2, title S, chap. 7, part 3, of the Eevised Statutes, which contains instruc- tions to the commissioners for executing the commission, (y) together with such other particular directions as may be deemed proper. Printed forms of the instructions may be had at the stationers, as also entire sets of the papers. The original will, if necessary, should also be annexed, being first marked as it is referred to in the interrogato- ries. All the papers should then be carefully folded up and securely sealed, and transmitted to one of the commissioners by mail, or other safe conveyance. The execution of the commission and the returning of the same, will follow the directions of the articles of the statutes above quoted, and the instructions accompanying the commission. Sec. 30. [Sec. 22.] The commission, returns, depositions and ex- (v) 2 R. S. 394, 360. 23 ; 4th ed. 639, sec. 16. (w) See. 23, (sec. 15;) 2 R. S. 394; 4th ed. 639, see. 16. (x) 2 R. S. 395 ; 4th ed. 640, sec. 21. (y) 2 R. S. 394; 4th ed. 639, sec. 16. BTIDBNCB ON PROVING A "WILL. ■ 161 hibits thereto annexed, shall remain on file in the office of the clerk (in the present case surrogate) to whom the same were addressed.(z) They shall at all times be open to the inspection of the parties, who shall be entitled to copies of such parts thereof as they may require, on pay- ment of the fees allowed by law. (a) The court will sometimes allow a ^econd commission to issue, as where a witness died before his examination ;(&) or where some of the interrogatories have not been answered.(66) Of the Evidence on Proving a Will. The testimony in the matter having been concluded, the suri-ogate is to decide upon the sufficiency of the same for the establishment of the will. The following provision is contained in the article of the Eevised Statutes entitled "of wills of real property and the proof of them."(c) Sec. 14. If it shall appear upon the proof taken that such will was duly executed ; that the testator, at the time of executing 'the same, was in all respects competent to devise real estate, and not under re- straint"; the said will, and the proofs and examinations so taken, shall be recorded in a book to be provided by the surrogate, and the record thereof shall be signed and certified by ]i\Ta..{d) By the eighteenth section of the act of 1837, (e) it is declared that this fourteenth section shall be applicable to wills of both real and personal estate, or either. This, however, does not imply that it is necessary on proving a will of personal estate, that it should appear that the testator, at the time of executing»the same, was in all respects competent to de- vise real estate. The decedent may have been an alien or an infant, and therefore incompetent to devise real estate ; his will may neverthe- less be valid as to personal property. It has already appeared, (/) that two at least of the subscribing witnesses to the will, if so many are living within this state, and of sound mind, and not disabled by age, sickness, or infirmity, from attending, must be examined; and that upon the written request of any person interest- ed in opposing the proof, all the subscribing witnesses living in this state, of sound mind, and not so disabled, must be produced and ex- amined ; that sick, disabled, or infirm witnesses may be examined at their residences, and that any other material witness, although not a (2) According to this provision the surrogate should retain in his office the original will, where it has been proved, or partly proved, under a commission, and annexed to one ; al- though another provision of the statute, presently to be referred to, directs that he return the will, after it has been proved, to the person deUvering it, or to a devisee, or to an executor, or legatee. See 2 R. S. 66. It is presumed that the section relative to retaining the commis- sion and exhibits is the paramount one in such a case. (a) 2 R. S. 395. " h) 3 Gaines' Rep. 321. [fib) 11 Johns. Rep. 343. The foregoing directions relative to the issuing of a commission are taken mostly from M"r. BurriUis valuable treatise on the Practice of the Supreme Court. (c) Art. 1, tit. 1, chap. 6, part 2, 2 R. S. 66 ; 4th ed. 241. Id) lb. 58 ; 4th ed. 242. (e) S. L. 1837, 528 ; 2 R. S. (4th ed.) 251, sec. 65. (/) 'Ante, p. 152 ; See S. L. 1837. 2 R. S. (4th ed.) 11 152 ■ EVIDENCE ON PROVING A WILL. subscribing witness, may also he so exaniined.((7) And tbere bas already been occasion also to state the sections of the statute, wbich make an attesting witness competent, although he may happen to take an interest under the will.(A) It has further already been shown, that a will may be admitted to probate, as duly executed under the statute, even in opposition to the positive testimony of one or more of the sub- scribing witnesses, who, either *mistakenly or corruptly, swear that the formalities required by the statute were not complied with, if, from other testimony in the case, the court or jury is satisfied that the con- trary was the fact.(i) And where any of the witnesses are dead, or in such a situation that their testimony cannot be obtained, proof of their signature is received conformably with the statutory provisions which have been recited,(j') as secondary evidence of the facts to which they have attested, by subscribing the will as witnesses to the execution thereof. (^) With respect to the proof required by the above 14th section of the statute, that the will was duly executed, it is proposed to add but a few observations to those which there has already been occasion to make on the subject, in considering the 40th section of the statute rela- tive to "wills and testaments of real and personal property, and the proof of them,"(Z) prescribing the manner and form of making wills. A party seeking to establish a will, takes upon himself the burden of .proving the concurrence of all the acts essential to the validity of such an instrument. (m) It is not enough that he proves one or two of them, but he must prove them all in succession. He must show that it is subscribed at the end thereof by the testator himself, or by sorde person for him, in his presence, and by his direction. He must also show that the subscription was made in "the presence of each of the at- testing witnesses, or acknowledged by the testator to have been so made in the presence of each of the. attesting witnesses. He must also prove that the testator, at the time of the making such subscription, or at the time of acknowledging the same, declared the instrument to be his last will and testament. And in the last place, he must show that each of the attesting witnesses signed his name at the end of the wiU, at the request of 'the testator. There must be proof of each of these four separate acts, independent of each other. Evidence that the tes- tator subscribed, and that the witnesses subscribed, is not proof that the testator signed in the presence of the witnesses. Evidence that he subscribed in the presence of the witnesses, and that they attested the instrument at his request, is hot proof of its publication in conformity with the directions of the 3d subdivision of the 40th section. Neither is the evidence of its publication in conformity with the 3d subdi- vision, proof that it was subscribed in the presence of the witnesses, or acknowledged to each of the witnesses to have been so subscribed, so (y) Ante, p. 155 ; See S. L. 1837 ; S. L. 1840; 2 R. S. (4th ed.) 249, 250. (h) Ante, p.p. 153, 164 ; 2 R. S. 241, 24T.- (i) Lowe T. JoUffe, 1 "W. Black. Rep. 365. (f) Ante, p. 153, 115. (A) See Jauncey v. Thome, 2 Barb. Ch. Rep. 60. (/) 2 R. S. 56, 63, (4th ed^ (m) Chafee v. Bap. Mis. Com., 10 Paige 91, per "Walworth Ch. ETIDBNCB ON PROVIITG A WILL 163 as to satisfy the demand of the 2d subdivision.(?i) Proof of any one of these four separate acts, cannot be enlarged by implication or pre- sumption, so as to become proof of any other of the four separate acts. The order in which these several acts are to be performed, as was be- fore shown, is of no moment.(o) In contemplation of the statute, they are all to be done at the same time, ifeither of the four acts, which, united, make a valid execution of the instrument, ma ybe done at a dif- ferent time from the rest.(^) Thei-e must be a concurrence of all to give validity to the act, and the omission of either is fatal.(g') The requirements of the statute as to the execution and proof of wills, are the prescribed rules for the evidence pronounced by law, to be indispensably necessary to prove the disposing mind and will of the testator, and the authenticity of the testament ; both of these being subjects peculiarly open to imposition, artifice, and error.(r) The rules which restrain and regulate the exercise of the right of testamentary disposition, which demand, upon the proof of a will, an accumulation of evidence unknown in any other proceeding, proceed fi?)m a profound sense of the necessity of protecting age and infirmity, and decaying mental faculties, from oppression and imposition. And when they are carefally and legibly written in the statute book, the courts have no other duty than to see them rigidly enforced. The law of evidence, in ' its application to the proof of the several facts, which, united, constitute a valid will, is the same as it is in its application to the proof of any other fact. The evidence may be direct and positive, or it may be cir- cumstantial and presumptive, for the law of evidence in regard to wills, as well as in regard to deeds and documentary proof generally, must have reference to the casualties of human life, and the infirmities of human memory. Thus, in a case where the attesting witnesses are dead, and the in- strument has a perfect attestation clause, which asserts that the requis- ites of the statutes have been complied with, and the name of the tes- tator at the end of the will, and the names of the witnesses to the attest- ation clause are proved to be in their proper handwriting, the proof would be circumstantial and presumptive, but still it would be such as would justify a court or jury, in the absence of all suspicious circum- stances, to determine in favor of its due execution. In every case the clear probability must always be, that the witnesses would not have signed the attestation of due publication, had it not agreed with the , fact, so that this must be the legal presumption until expressly contra- dicted. The mere absence of additional proof, would not negative this presumption.(s) So it is established, that where the facts essential to the valid execution of the will are stated in the attestation clause, the mere want of recollection in the witnesses, is insufficient to overthrow the presumption of due execution.(<) Nothing is said in the statute as to (n) lb. p. 8561. (o) Ante, p. 61. (p) Doe V. Poe, 2 Bart). S. C. R. 205 ; Seguine v. Seguine, lb. 394 ; Kearney v. Whiimarsh, 16 Barb. S. C. Rep. 141. ({) Eemsen v. Brinckerkoff, 26 Wend. 331, per Nelson, C. J. ir) See 26 Wend. 335. (s) 26 Wend. 339. (i) Remsen v. Brinckerkoff, 26 Wend. 332. 164 EVIDENCE ON PROVING A WILL. the necessity of eacli witness being able to prove that all the formalities required by law were complied with, where all the subscribing witnesses are alive, and are actually examined. And it would not be a proper construction of the statute to reject the probate of a will in such a case, upon the ground that some of the subscribing witnesses cannot, after a long period of years, recollect that all the requisites of the Statute of Wills were complied with.(M) Again, as has appeared at a previous page,(v) where one of the wit- nesses, who Avas a lawyer, was dead, and the attestation clause was fuU, but the surviving witness was unable to prove a perfect compliance with the statute, it was held that the reasoliable presiimption was in favor of the due execution of the will. And, as was before shown,(M;) it has been repeatedly decided that where one of the subscribing wit- nesses swears, that all the formalities required by the statute were complied with, the will may be admitted to probate, notwithstanding the other attesting witnesses may not be able to recollect the fact ; and that the atte^ation clause, after the lapse of time, and on a want of recollection by the witnesses, affords a presumption or inference that its recitals are tfue.(a;) In Peebles v. Case,{xx) it was laid down that if the subscribing wit- nesses have lost all recollection of the execution, the court, if satisfied from other evidence that they did in fact witness the will, may ad- mit it to probate ; the performance of the usual formalities being inferred from the recitals of the testatum clause. When the subscribing witnesses corruptly deny the execution, and, a fortiori, when* they are mistaken, the proof of the will may be supplied from other sources. The proof of a will, it was further held in the same case, abides by the same rules of evidence as prevail in all other judicial investigations. The question for the court is, ihe factum of the instrument, and that may be proved in the very teeth of the subscribing witnesses. As to the ef- fect, nature and character of their testimony, the subscribing witnesses stand on the same ground as other witnesses, on the subject of contra- diction; and if untruth, mistake, or want of recollection be alleged, it is not only competent to prove it, but, on its being proven, and the judge being satisfied of the validity of the will, decree of probate should follow. The sections of the statute providing that, where the witnesses are dead, insane, out of the state, or incompetent to testify, proof of their signatures may be taken, are only directory, and do not forbid a resort to that class of testimony in other cases, when necessary for the ascer- tainment of truth. Having attained jurisdiction of the subject mat- ter, the surrogate, where the course of procedure is not prescribed by (m) 'Jawncey v. Thome, 2 Barb. Ch. Rep. 62, 53. See, also, Butler v. Benson, I Barb. Sup. Ct. Rep. -526, (v) Page 116. (w) Pages 114, 115. (a;) Ohaffee v. Bap. Mis. Oonvn., 10 Paige, 85 ; Jauncey v. Thome, 2 Barb. Ch. Rep. 49 ; Sehon v. McGiffert, 3 Barb. Ch. Rep. 158; Butler v. Benson, 1 Barb. Sup. Ct. Rep. 526; Weir V. Fitzgerald, 2 Bradf. Surr. Rep. 42. See 19 Johns. Rop. 386 ; 4 Cowen, 483 ; 1 Wend, 406; 11 Wend. 599. (xx) 2 Bradf. Surr. Rep. 226. EVIDENCE ON PROVING A "WILL. 165 statute, must dispose of it according to the established rules of evi- dence. But where the evidence of the subscribing witnesses, or even of one of them, proves the fact of a positive non-compliance with the require- ments of the statute as to the execution of the will, there is no room left for the application of the law of presumptions, for there are no cir- cumstances from which presumptions can arise. The requisite proof is not furnished, and it appears affirmatively that it does, not exist, nor can the attestation clause be of any value in this emergency. An at- testation clause is of value when the attesting witnesses are dead, or beyond the jurisdiction of the court, or where their memory has failed from any cause, but not when the facts which it asserts are affirma- tively disproved. The theory upon which the assertions of an attesta- tion clause are to come in aid of the proof of a will, is the presumption that reputable witnesses would not have put their names to it, unless its contents were known to be true. But this presumption is destroyed when the fact of a want of due execution is affirmatively shown.(2/) The statute requires that it shall appear 'tipon the proof taken, that the testator at the time of executing the will was- not under restraint. The restraint which shall invalidate a will is not merely, indeed is scarcely ever, physical or bodily compulsion or control. The term comprises all lands of undue influence, fraud or artifice, and all attempts to practice upon, or to take advantage of the want or failure of memo- ry, the ignorance, or the weaknesses of the testator, his evil habits, pas- sions, or propensities, or the defects, or infirmities of his faculties. Generally speaking, where there is proof of due execution, every- thing else is implied till the contrary is proved ; and evidence of the will having been read over to the testator, or of instructions having been given, is not necessary :{z) for when an instrument has been exe- cuted by a competent person; it must be presumed that the party so executing, knew the contents and the effect of the instrument, and that he intended to give that effect to it.(a) But there are some eases of peculiar circumstance, where a more rigid mode of proof is en- forced. Thus, although the rule of the Roman law that " Qui se scripsii hceredem" could take no benefit under a will, does not prevail in the law of this state, yet, where the person who prepares the instrument, or conducts its execution, is himself benefited by its dispositions, that is a circumstance which ought generally to excite the suspicion of the court, and calls on it to be, vigilant and jealous in examining the evi- dence in support of the instrument, in favor of which it ought not to pronounce, unless the suspicion is removed, and it is judicially satisfied that the paper does express the true will of the deceased. (6) (y) See Lmiis v. Lewis, 13 Barb. Sup. Ct. Rep. 31, 32. (z) Billinghursi v. Vickers, 1 Phlllim. 191 ; Bodd v. Lewis, 2 Oas. Temp. Lee, 116 ; Goose. V. Brown, 1 Curt. 101. (a) Fawceit v. Jones, 3 Phillim. 4T6; Wheeler v. Alderson, 3 Hagg. 58T. Approbation will have the effect of prior instructions: Forfar v. Heasiie, 2 Cas. Temp. Lee, 310; DurneU V. Corfield, 1 Robert. 56. (i). See Ante, p. 118 5 Croft v. Day, 1 Curt. 184; /Sf. 0., nomine; Dufowrr. Croft, 3 Moore, P. C. 0. 136; DwrneH v. Corfield, 1 Robert 51; GreviUe v. Tyke, 1 B. F. Moo. 320; Bwger v. 166 BVIDEWCB ON PROYrSTa A WILL. Where the testator is "blind, it must be proved that the contents of the will were known to the deceased ; for his execution, or other acknowledgment of the wUl, is not sufficient.(c) And the same, where from want of education, or from bodily affliction, he is unable to read.(cc) By the civil law, a blind man could not make a testament in wri- ting, unless it was read to him, and acknowledged by him to be his will before the witnesses.{c?) This rule has not, . however, prevailed in England, nor been incorporated in any of the statutes relative to -wills. The object of requiring the will to be read to the blind man was doubtless to prevent fraud, the substitution of one instrument for another, and to secure evidence, beyond the mere factum of the will, of the knowledge of the contents of the identical will by the tes- tator. It has not been made a formal ceremonial by the statute of the state, in any case, that the will should be read to the testator in the presence of the witnesses, though it is eminently proper so to do where the testator is blind or cannot read. The statute is satisfied by the subscription of the testator, at the end of the will, in the presence of two witnesses, or the acknowledgment of such subscription ; the testamentary declaration of the testator; and the signature by the witnesses, of their names at the end of the will, at the request of the testator. These forms are necessary, but, even when satisfied by the evidence, do not always entitle the will to be admitted to proof. Something more is necessary to establish the validity of the will, in cases where, from the infirmities of the testator, his impaired capapity^ or the circumstances attending the transaction, the usual inference can- not be drawn from the mere formal execution. Additional evidence is, therefore, required, that the testator's mind accompanied the will, that he knew what he was executing, and was cognizant of the provi- sions of the will. That is all that ought to be required in the proof of the will of a blind person.(e) So it is an established rule, that where the capacity of the testator is doubtful at the time of execution, there must be proof of instruction,-or of reading over.f/) But this rule only applies, or at least only applies with any stringency, where the instrument is inofficious, i. e., not con- sonant to the testator's natural affections and moral duties, or where it is obtained by a party materially benefited.(g') In determining, therefore, whether a will has been procured to be made by undue influence, it is proper to examine whether the alleged Eill, 1 Bradf. Surr. Rep. 360 ; Vreekmd v. McClelland, lb. 393 ; Weir v~ Fitzgerald, 2 Bradf. Surr. Rep; 42 ; Grispell v. Dubois, 4 Barb. Sup. Ct. Rep. 393 ; Taylor on Evidence, 108, sec. 105 ; Wms. on Exrs. 92, 293 ; Mowry v. Silber, 2 Bradl Surr. Rep. 133. (c) Ante, p.p. 51, 112 ; Barton v. Robins, 3 Phillim. 455, n. b. : but as to a will of lands, see Longchamp v. Fish, 2 New R. 415 ; Wdr v. Fitzgerald, 2 Bradf. 42. (ec) 4 Burn. E. L. 61, (8th ed. ;) Bwrlon v. Robins, 3 Phillim. 455, n. b. {d) Cod. Lib. 6, tit. 22, sec. 8; Inst. Lib. 2, tit. 12, sec. 3, 4; Dig. Lib. 31, tit. 3. fe) Wtir V. Fitssgeraid, 2 Bradf Surr. Rep. 68, 69. (/) Billinghwrst v. Ticto-s, 1 PhiUim. 193 ; Ingram v. Wyatt, 1 Hagg, 382 ; Dodge v. ifeecft, 1 Hagg. 620. See Barry v. ButUn; Ante, p. 119; DwneUv. OorjKld, 1 Robert. 61; Burrittv. SuUiman, 16 Barb. S. C. Rep. 198. (g) Bregden v. Brown, 2 Add. 449. See, also, Sankey v. Lilky, 1 Curt. 401 ; Swrwood v. Baker, 3 Moore P. C. C. 282 : Croft y. Day, 1 Curt. 184 : S. C, nmavrte : Dvfovr v. Croft,, i iiooreP. CO. 136. EVIDENCE ON PROVING A WILL. 167 testamentary provisions are in tarmony with the decedent's dispositions and affections. Subsequent recognitions of the will by the decedent, when in health, and in the undoubted full possession of his faculties, are material facts in its favor. And whether a condition of weakened capacity of the testator existed at the time of the execution of the will, and whether the will was made and procured by the artifice, influence, or control of others, , is the subject of af&rmative proof, and not of sur- mise and suspicion.(A) Although the onus of satisfying the court that the forms prescribed by the statute for the execution of wills were complied with, lies with the party seeking to establish the will, the fact of such compliance may be proved by other evidence, or inferred from circumstances, where the subscribing witnesses are dead, or absent, or otherwise incapacitated to give testimony, or where, from lapse of time, or otherwise they are • unable to recollect whether the requisite formalities were observed at the time when they witnessed the execution of the instrument. (i) So, in resting the probate of an instrument propounded as the last will and testament of a decedent, his heirs and next of kin have the right to introduce any testimony which will be sufficient to satisfy the surro- gate that the instrument propounded was not in force, as a valid will, at the death of the testator named therein. Proof, therefore, that the will in question was revoked by a subsequent will of the testator, and that such subsequent will has been fraudulently destroyed ; or that it was destroyed by the testator when his mind had become so impaired that he was incompetent to perform a testamentary act, is admissible.(y) So where, in an action of ejectment, the plaintiff on the question of request to the attesting witnesses, offered to show by a person other than an attesting witness, that when the will was attested the testator was silent, it was held that the testimony was admissible, and that although there might have been a constructive request, the plaintiff had the right tcJ establish the fact that there was no personal request made by the testator after a certain person came into the room, so that it should depend wholly upon the constructive request, and then to have had the question submitted to the jury.(^) So where the capacity or condition of the testator, or the circumstances attending the execu- tion of the will, are such as to excite the suspicion and awaken the vigilance of the court, and additional evidence is required to remove the suspicion and satisfy the court that the instrument propounded does express the true will of the deceased, it is not essential that such evi- dence should be furnished by the subscribing witnesses. It may be ■ supplied aliunde. As subscribing witnesses, all that it is necessary they should prove, is that ceremony which they witnessed, and which the statute requires. This satisfies the statute ; and the additional evi- dence which has been referred to as proper in certain cases, may be afforded by other persons.(i) iK) AUen v. The Public Administrator, 1 Bradf. Surr. Sep. 378. i) Chaffeev. Bap. Mis. Con. 10 Paige, 91. (j) Nelson v. McQiffert, 3 Barb. Ch. Rep. 158, 164. Oc) Rutherford v. Rutherford, 1 Denio, 33. (l) Weir V. FUzgeraM, 2 Bradf. Suit. Rep. 69. 168 EVIDENCE ON PROVING A WILL. In the Court of Construction, -wlien ihe factum of the instrument has been previously established in the Court of Probate, the inquiry is almost closely restricted to the contents of the instrument itself, in order to ascertain the intentions of the testator. But in the Court of Probate, the inquiry is not so limited ; for there the intentions of the deceased, as to what shall operate as, and compose his will, are to be* collected from all the circumstances of the case taken together.(m) The surrogate's decree as to the validity of a will of personal estate being conclusive, he must determine upon questions of error or mistake, as well as of fraud or incapacity, when they relate to the factum of the instrument. The general rule is, that mistakes and variances between the will as prepared, and the instructions given for preparing it, can only be reformed by the Court of Probate.(w) It seems well settled, that a will cannot be set aside in equity on the ground of fraud, (o) and the rule must, of course, be more stringent in a case of alleged mistake, or dispute as to the testator's intention, (jo) Therefore, if there is an ambiguity upon the factum of th§- instru- ment, parol evidence may be admitted, under some circumstances, in the Court of Probate, to explain the intention of the testator. ' By am- biguity upon ^i factum As meant, not an ambiguity upon the construc- tion, as whether a particular clause shall have a particular effect ; but an ambiguity as to the foundation itself of the instrument, or a particu- lar part of it : As, whether the testator meant a particular clause to be part of the instrument, or whether it was introduced without his knowl- edge ; whether a codicil was meant to republish a former or a subse- quent will \{q) whether the residuary clause or any other passage was accidently omitted.(2'g') These are all matters of ambiguity upon the factum of the instrument.(r) But it has been considered as a rule, that in order to justify the ad- mission of parol evidence to explain an ambiguity upon the factum of an instrument, the ambiguity must he upon the face of 'the paper ; and further, the facts alleged and to be proved must completely remove that ambiguity.(s) When no ambiguity whatever appears upon the face of the instrument, the court will not admit parol evidence.(<) (m) Greerwugh v. Mariin, 2 Add. 243 ; Methiten v. MeOiuen, 2 Phillim. 426. (n) Story's Eq. Jur. sec. 179 ; Burger v. Sill, 1 Bradf. Surr. Rep. 372, and cases cited. (o) See 1 Brad£ 373. (P) Id. (j) Lord St. Eelens v. Lady Exeter, 3 Phillim. 461, n. g. There the testator left a will, dated 13th Dec, 1800, and a codicil, all in his own handwriting, beginning "This is a codi- cil to my last will and testament of the 10th Jan., 179S, andl do hereby ratify and confirm ' my said will." On the part of the executors, it was alleged that at the time of the execu- tion of the codicil the deceased was at Burghley, and copied this from a form which he had procured from his solicitor, and inadvertently copied the date from a former will, which it was to be presumed had been destroyed, as it could not be found. Parol evidence was ad- mitted to prove this allegation, and show the mistake : and the codicil was pronounced a codicil to the will of December, 1800. ,{qq) Blackwood v. Darner, 3 Philhm, 458, n. d. ; ^Travers v. Milkr, 3 Add.226 ; BayUon v. Bayldon, 3 Add. 239 ; ShadboUy. Waugh, 3 Hagg. 570. But see GasieU v. Tagg, 1 Curt 289. (r) 3 Phillim. 479. (s) Fawcett v. Jones, 3 Phillim. 434; Draper v. Hitch, 1 Hagg. 678 ; Sarrison v. jStone, 2 Hagg., 5 50 ; ShadboU v. WoMgh, 3 Hagg. 570 ; and see Sandford v. Vaiugham, 1 Phillim. 128. it) Fawceit v. Jones, B Phillim. 434. With respect to what shall be an apparent ambiguity such as to satisfy this rule, see Wms. on Exrs. 297, 8, and cases cited. EVIDENCE ON PROVINa A WILL. 169 As to undue insertions or omissions in wills, it seems tliat if a clause is inserted in a will by mistake, parol evidence may be received for the purpose of tbat clause being expunged by showing it never was intend- ed that it should form part of the will. So the court may receive parol evidence to explain a word in a will, but not to substitute one word for another.(M) With respect to omissions, it is not competent for the Probate Court, undej the statute prescribing the manner and form of executing wills, to supply omissions by inserting words in the will; but part of a will may be established and part refased probate, if inca- pacity, fraud or imposition, at the time of the execution of the latt»r part be shown. And where it is necessary to correct an error, to meet the intention of the decedent, probate may be limited as to particular as- sets.'(v) Thus, in Burger v. lIiU,{w) before the svirrogate of the county of New York, the testator, by his will, gave and devised to his mother and sisters, all his real estate in equal proportions, share and share alike. He then gave and bequeathed unto Elizabeth Parker, the use and annual in- coipie of all his personal property during her life, with remainder to her daughter Florence, forever. The decedent, at the time of his death, pos- sessed an estate consisting of his store in Greenwich street, which was leasehold property, his stock in trade and other personalty amounting altogether in value to about $20,000, and some real estate in Williams- burgh, Valued at $3,000 or $4,000. The will was drawn by Judge Bockes, and at the time of its preparation and execution, the following circumstances transpired. The testator informed the judge that he wished him to draw his will ; and on being asked how it should be drawn, he said he wished to give. Elizabeth Parker and her child his personal estate, the use of it to her for life and then to the child. He then said that he wished his real estate to go to his mother and sisters. To ascertain whether he understood the force of the terms he used, the judge inquired whether he had any real estate. He said the store where he carried on business in New York, he owned. "I understood from the decedent, that the store in New York, where he did business, would pass to his mother and sisters under the term "real estate" as used in the will, I asked him if he had any real estate. My object was to see if he understood the force of the term, " real estate" he used. He said he owned the store where he did business in New York, and I believe he said, that was real estate which he wanted to give to his mother and sisters." The surrogate decreed that the will be 'admitted to probate as a valid will of the real and personal estate of the testator, except as to the legacies of the testator's " personal estate" therein men- tioned, to Elizabeth. Parker and her child Florence, which said legacies of said "personal estate," are admitted to probate as a part of said will, except as to the leasehold lot and premises of the said testator, known as number two hundred and eighb Greenwich street, in the city of New York, which premises are hereby reserved from the probate of so much of said will, as relates to said legacies of said "personal estate." "I am (a) In the Goods of Chapman, 1 Robert. 4. (jj) Swger v. Mill, 1 Bradf. Surr. Rep. 360. See, also, 'WiaB. on Bjcts. 311. (■w) 1 Bradf. 360. 170 ENTRIES TO BE MADE BT STTRROGATE IN HIS MINtTTES. frank to say," observed tlie surrogate, in closing his opinion upon the case, " this disposition has not been arrived at without a full sense of the difficulties which entangle the subject, but I believe it to be right in itself, and in consonance with a just and liberal interpretation of the principles by which testamentary courts have been accustomed to be guided." The proof must be clear and satisfactory that the insertion or omis- sion was contrary to the intention, in order to require or justify the court to pronounce for the will, not in its actual state, but with such error first reformed or corrected.(x) The statute also requires where the will relates to real estate, that it shall appear upon the proof taken, that the testator at the time of exe- cuting the same was in all respects competent to devise such estate. In general the only qualifications to render a person competent to devise real estate, in addition to those rtquired'to enable him to bequeath per^ sonal property, are that he should be a citizen of the United States and of full age. The blanks for the depasitions of the attesting witnesses, formerly in ordinary use on proving a will in the court of the surro- gate of the county of New York, contained a clause by which the wit- nesses swore in the words of the statute, that the testator was at the time of the execution of the will, in all respects competent to devise real estate. This has recently been altered, and the witnesses now swear that the testator was not in any respect incompetent to devise real estate. Neither of the forms of the testimony alluded to, it is supposed, furnishes conclusive evidence that the testator possessed the requisite qualifications implied by the language of the statute. (For forms of depositions on proving a will embodying all the re- quirements of the statutes, see Appendix, Nos: 14 and 15.) The will may be either admitted to probate and record or not, ac- cording as the surrogate may determine upon the evidence. Of the Entries to he Made by the Surrogate in his Minutes. 'Sec. 21. The surrogate shall enter in his minutes the decision which he may make concerning the sufficiency of the proof or validity of any will which may be offered for probate ; and in case he shall decide against the sufficiency of the proof or the validity of any such will, he shall, without fee or charge, state the ground upon which the decision is made, if required by either party, (y) (For form of the entry in the surrogate's minutes, where the will is established, see Appendix, No. 17.) An order admitting the will to probate, reciting a brief summary of- the proceedings, is also entered in the minutes. For form, see Ap- pendix, No. 17.) If the surrogate decide against the sufficiency of the proof or the validity of the will, an order must be entered rejecting the same. (For a form of such order, see Appendix, No. 21.) (x) See Wms. on Exra. 299. (V) S. L. 183Y, 528 ; 2 E. S. (4th ed.) 251, sec. 1'?. RECORD AND PROBATE OF THE WILL, ETC. 171 The -will having been established, it must be recorded. By the above section, numbered 14, the will and the proofs and examinations taken, are to be entered upon the record. The 10th section of the act of 1837, as has been seen,(z) requires proof of the service of the citation to be taken and rgdaced to writing, as well as the examinations of the witnesses ; and the present fourteenth section, construed with reference to that section, and tbe eighteenth section of the same act, was formerly held, in the court of the surrogate of the county of New York, to re- quire that the whole should be recorded ; so that all the proceedings from the issuing of the citation were made a part of the record. Bu* now the practice is to enter upon the record, at its commencement, simply a brief summary of the preliminary proceedings, reciting the making of the requisite inquiry respecting the property to which the will relates, and respecting the names and residences, and other facts directed to be ascertained relative to the widow, heirs and next of kin, the appointment of a special guardian, if such has been the case, the issuing service and return of the citation, the appearances of the parties on the day appointed for taking the proof, and the decision of the sur- rogate upon the sufficiency of the proof and the validity of the will. The record then proceeds with the will, and the proofs' and examina- tions mentioned in the above 14th section. (For form of the complete record of a will, including the surrogate's certificate required by the 14th section, see Appendix, No. 18.) Of the Record and Probate of the Will and the Effect thereof and of Re- cording the Proceedings. The following section of the statute was originally enacted with re- ference to wills of real property and the proof of them. Sec. 15. Every, will so proved, shall have a certificate of such proof indorsed thereon, signed by the surrogate, and attested by his seal of office, and may be read in evidence without further proof thereof. The record of such will, made as aforesaid, and the exemplification of sucb. record by the surrogate in whose custody the same may be, shall be received in evidence, and shall be as effectual in all cases as the ori- ginal will would be if produced and proved, and may in like manner be repelled by contrary proof (a) In all cases the admitting the will by the surrogate to be recorded,, renders the original will, or the record of the proof thereof, prima facie evidence of the due execution of sucb will; but subject to be rebutted by contrary proof (6) By the 18th section of the act of 1837, (c) this 15th section is made applicable to wills of both real and personal estate, or either. (For form of the certificate to be annexed to the will, see Appendix, No. 19.) (z) Aide, p. 149. (a) 2 R. S. 58 ; 4th ed. 242, sec. 11. \b) See Jauncey v. Thffrne, 2 Barb. Ch. Rep. 51-2. (c) S. L. 1837, 528; 2 R. S. (4th ed.) 251, sec. 65. 172 RECORD AND PROBATE OF THE WILL, ETC. Sec. 19. When any will shall be recorded as a will of real estate, it shall not be necessary to record the same as a will of personal esta,te.{d) This section simply renders it unnecessary to record a will anew, on proving it as to the personal estate, after it has been proved and re- corded as a will of real estate, or on proving a will a^ to both real and personal estate, to record the same separately as to each. It does not, as some have been known to suppose, authorize probate of a will, merely. on proving it as a will of real estate. To prove a will of real estate, it is necessary to cite the heirs only ; but on proving a will of personal estate, the widow and next of kin must be cited. There are other distinctions, also, but this renders the meaning of this section sufficiently apparent. A copy of the will, with a certificate of the correctness of the same, and that the will has been dulyproved, and a further certificate setting forth the qualification of the executor and the issuing of the letters tes- tamentary, is, in the county of New York, termed the probate. (For form of the probate,' see Appendix, No. 20.) Sec. 29. The probate of any will of personal property, taken by a surrogate having jurisdiction, shall be conclusive evidence of the va- lidity of such will, until such probate be reversed on appeal, or re- voked by the surrogate, as herein directed,(e) or the will, be declared void by a competent tribunal. (/) The probate is conclusive as to the validity of the will, except in a proceeding which has for its very object, directly or indirectly, to re- voke or modify the probate. The statute has provided the means of enabling the next of kin of a testator, within a year after the probate, on filing allegations against the validity of the will or the competency of its proof, to compel the executors to prove the will anew ; and, after hearing the proofs, if the surrogate decide the will to be invalid, or not su£S.ciently proved, he may annul and revoke the probate thereof.(g') But there is not any provision expressly authorizing- the surrogate to revoke a probate in any other case. And even where a subsequent will has been discovered and proved, the jurisdiction is nowhere ex- pressly conferred upon the surrogate to revoke the previous probate. And yet such a case may often occur after proof of the earlier will, and the parties in interest under the last will, be deprived of their rights, without notice, and without fault or negligence, unless a remedy exists beyond the express provisions of the statute, K the Surrogate's Court possessed the power to revoke, open, or alter its orders, it is self evident that the order itself cannot be set up as a bar to the exercise of an au- thority which pre-supposes the existence of some decree or order on which to act. The question in these cases, therefore, is whether after a will is admitted to proof, the surrogate has control over his own de- cree of probate. " 'I'here is nothing," says the surrogate, in Campbell V. Logan,{h) "in the law forbidding the exercise of such a power; (the (d) lb. 2 R. S. (4th ed.) 245, sec. 32. (e) That is, after proceedings on allegations of the next of kin ; as to which, see 2. R. S. . 61-2 ; 4th ed. 244, sec. 22 ; Post, chap. 14. (/) 2 R.. S. 61 ; 4th ed. 244. to) 2 R. S. 61 ; 4th ed. 244. (h) 2 Brad£ Surr. Rep. 90, 92. EECOED JlND probate OF THE WILL, ETC. 173 power to revoke a previous probate on the discovery of a subsequent will ;) but, on the contrary, there is a ver_^ fair implication in its favor in the very section which declares the probate to be conclusive evi- dence of the will until reversed on appeal, or revoked by the surrogate on allegations filed within a year by the next of kin, " or the ivill he de- clared void by a competent tribunal." This section was proposed by the revisers as a rule of evidence declaratory of the existing law,(i) and was not designsd to restrict the power of the surrogate. Indeed, it distinctly recognizes the competency of some tribunal to declare the will void ; and If that does not lie within the jurisdiction of the surrogate, I do not know where the power resides.(y) No other court possesses jurisdic- tion in respect to the proof of wills of personal estate ; and if the sur- rogate has no authority to open a decree for the purpose of correcting a mistake, or to let in the proof of a revocation, or a later will' — if the moment ^ decree of probate is passed, the door is closed, and the act is irrevocable, notwithstanding the discovery of circumstances showing the probate to be erroneous, then it is evident that justice may be sac- rificed to the forms of proceeding. This power has al ways been exercised in the English Ecclesiastial Courts. Wentworth says, "If there be false- hood in the proof, were it communi forma, that is, without witnesses, or by examination of witnesses, (that is, in solemn form,) yet it may, in the spiritual court, be undone, if disproof can be made, or proof of revocation of that will was once made, or of the making of a later. {It) " I consider the power now under discussion as essential to the admin- istration of justice, and as a necessary incident to the exclusive jurisdic- tion of the surrogate over the subject matter of the probate of wUls. In this connection, my attention has been drawn to the authority exer- cised by the Chancellor, acting under the special power conferred on him by the English bankrupt law. Without any provision in the sta- tute for that purpose, he has constantly exercised jurisdiction in recall- ing certificates and superseding commissions, on the principle that the power is incidental to the jurisdiction, and necessary for the ends of justice."(i) But the spiritual courts have always exercised this power over their own decrees ; and the Surrogate's Court, though of inferior jurisdiction, being a tribunal proceeding according to the course of the common law, and recognized by the common law, proceeds in all matters rela- ting to the probate of testaments and the administration of the estates of deceased persons, in conformity with prescription and established usage, except as modified from. time to time by statutory regulations. It is true, the Eevised Statutes define the jurisdiction of the surrogate, and direct its exercise " in the cases and in the manner prescribed by the statutes of the state f{m) but the power to take the proof of wills being given generally, the mode of its exercise in a case not provided («•) 3 E. & or S. (,2d ed.) Appdx. 630. I (j) Williams on Exrs. 450, 457. ik) Wentworth, OiT. Ex. Ill, 112. See 1 Hagg. 241, 645; 3 Hagg. 243; 1 fhiU. 83; 3 Phill. 33, 56 ; 1 Add. 219, 365 ; 1 Curt. 691 ; 3 T. R. 125 ; .4 Serg. & Raw. 201. (Z) Eden on Bankrupt Law, 412, 431. (m) 2 li. S. (3d ed.) p. 318, sec. 1. See Ante p. 19. 174 RECORD AND PROBATE OF THE 'WIIiL. ETC. for by statute, imist be regulated by tbe court in the exercise of a sound discretion according to the peculiar circumstances of each particular case. For example, there can be no doubt that a legatee or party in- terested in a later will, discovered after a previous will has been ad- mitted to proof, has a right to have the last will proved and letters tes- tameijtary issued thereon. But there cannot be two last wUls and two sets of letters at the same, time. It is incidental, therefore, to the exer- cise of jurisdiction in taking probate of the last mil, and the conse- quent grant of letters, to revoke the first probate, and the first letters testamentary.(n) The following section of the statute is partly a repetition of what has already been quoted, with respect to the recording of the will. Sec. 68. Each surrogate shall record in his books, to be provided by him, all wills proved before him, and all letters testamentary or of administration, and all letters appointing a collector, with all things concerning the same. The records of such wills and letters, and the transcripts thereof, duly certified by the surrogate having the custody of such records, under his seal of office, shall be evidence in all courts, so far as respects any personal estate, in the same manner as if the originals were produced and proved.(o) By the following section, the testimony on the proof of a will is to be reduced to writing, and recorded in all cases, whether the will be established or not. Sec. 57. The testimony taken by any surrogate, in relation to the proof of any -^vritten or unwritten will, and in any controversy relating to the granting of letters testamentary or of administration, or the re- voking of the same, shall be reduced to writing, and shall be entered by him in a proper book to be provided, and preserved as part, of the books of his office; if taken by any first judge or district attorney, the same shall be filed in the office of the clerk of the county.(p) It may be observed, that under this provision, if l^e will be not es- tablished, only the testimony need be recorded. Neither the supposed will nor the preliminary proceedings are to be entered on the record. The proper record, in such case, in the court of the surrogate of the county of New York, is usually made in the book of the surrogate's daily minutes. (n) In Heyer v. Burger, 1 Hoffman's Ch. Rep. 1, 11. The Assistant Vice-Chancellor, after quoting the provisions of the statutes relative to the revocation of a probate on allegations, and those regulating appeals from the decrees of surrogates on wills, (2 R. S. 62, sec. 38 ; Id. 66, sec. 55 ; Id. 67, sec. 69 ;) with reference to the last clause of this section, says: "From an examination of these various provisions, I am unable to fix any meaning to the clause used in the 29th section of the statute, viz.: "Or the will be declared void by a competent tribu- nal," unless it refers to cases in which executors or trustees come to establish a will, or carry it into execution, and its vaUdity is contested." As to the exclusive or concurrent jurisdiction of surrogates in respect to wills of personal property, see same case. See, also, on the question of jurisdiction, and the effect of the proof of wills in the Surrogate's Court, as to the real and personal estate respectively. Rogers v. Rogers, per Savage, Ch. J., 3 Wend. 514; Bo^rdus v. Clarke, 1 Edwards' Chan. Repts. 266; 4 Paige, 623; Matter of Atkinson's will, 2 Paige, 216; Matter of Sornby's roiU, lb. 430. (o) 2^R. S. 80^; 4th ed. 267. See ante, p.p. 41, 138. p) 2 R. S. 80; and see S. L. 1837, chap. 466, p. 543; 2 R. S. (4th ed.) 267. PEOVING OF THE WILLS OF NON-INHABITANTS. 175 Of the Disposal of the Will after Proof. Sec. 54. All wills whenever proved according to law, except sucli as are required to be deposited, shall, after being recorded, be returned upon demand to the person who delivered the same ; or in case of his death, insanity, or removal from the state, to any devisee named in such will, or to the heirs or assigns of such devisee ; or if the same re- late to personal estate only, to any acting executor of such will, or ad- ministrator with the will annexed, or to a legatee named therein.(g') This section does not seem to call for any comments. Of the Proving of the Wills of Non- Inhabitants. ^ The subject of the proving and recording of wills under the first sub- division of the statute, S. L. 1837, 524, sec. 1, where the testator, at or imhaediately previous to his death, was an inhabitant of the county of the surrogate, in whatever place such death may have happened, is thus concluded. The cases of wills of inhabitants of the county are, of course, far more numerous than those coming under the other subdi- visions of the statute, and constitute the largest separate branch of busi- ness in the Surrogate's Court. The other cases in which the surrogate has jurisdiction, are where the testator was not an inhabitant of this state, and died in the county of the surrogate, leaving assets therein ; or died out of the state, leav- ing assets in the county of the surrogate; or died out of. the state, not leaving assets therein, but assets of such testator have thereafter come into the county of the surrogate ; or lastly, where no surrogate has gained jurisdiction by reason of either of these provisions, and any real estate devisCd by the testator is situated in the county of the surro- gate.(r) It may be observed, that the jurisdiction in these cases uni- formly follows the personal property, and it is only where there are no assets within this* state, that the situation of real estate of the testator within the county of the surrogate can give him jurisdiction. The surrogate has power also, as has been seen,(s) to take the proof of any will relating to real estate situated within his county, when the testator in such will, shall have died out of this state, not being an in- habitant thereof, and not leaving any assets therein. All wills relating to real estate within this state, by whomsoever made, whether by inhabitants or non-inhabitants, in order to be recog- nized and recorded here as valid wills of real estate, must be executed and attested ; and' except in those cases in which the Court of Chan- cery [Supreme Court] has jurisdiction, must be proved in accordance with the provisions of the statutes cited in the preceding pages, and the directions there given. It is settled in the law of all civilized count- ries, that real property, as to its tenure, mode of enjoymejit, transfer and descent, is to be regulated by the lex loci rei sitae.if) (q) 2 R. S. 66 ; 4th ed. 251. (r) See S. L. 1837, 524; 2 R. S. (4th ed.) 418, sec. 2; Ante, p. 139. (s) Ante, p. 19 ; 2 R. S. 220 ; 4th ed. 418, sec. 1. (t) 2 Kent's Oomm. 429, 4 lb. 513 ; Story's Oonfl. of Laws, 300, 358, et seq. MiUs r. Fo- gal, 4 Edw. Ch. Rep. 569; Inttie Matter of Stewart, 11 Paige, 398. On the principle stated, 176 PEOTING OF THE 'WILLS OP NON-INHABITANTS. The preliminary proceedings on proving wills of non-inhabitants in the Surrogate's Court, are similar to those already described in the case of a will of an inhabitant of the county. The petition for the proof will, in nearly every particular, follow the same form prescribed for the proof of the wills of inhabitants. It should state the place of the dom- icil of the testator and the place of his death, and should aver jurisdic- tion in the surrogate, under one or the other of the last four clauses of the first section of the statute of 1837.(m) If the will relate to real es- tate, only the names of the heirs of the decedent, according to the Sta- tute of Descents, (1 E. S. p. 750,) should be given, together with the other particulars respecting them, required in the case of the will of an inhabitant. If the decedent left no heir at law, or if all his relatives or heirs were aliens, and incapable of inheriting lands within this state, that fact should be stated in the petition ; so that notice of the proceed- ings to prove the will may be given to the attorney -general of the state. Where the will relates to personal estate, and it is proposed to take out probate of the same, if the decedent was not domiciled in this state at the time of his death, or if the will was executed out of the state, the domicil of the decedent should be particularly stated in the petition, and the names and residences of the next of kin, or the other persons entitled to the succession in case of intestacy, according to the lex dom- icilii, with the facts as to the minority of any of them, required on proving wills of inhabitants, should also be stated so far as the peti- tioner is able to ascertain the same. And where the alleged will has been executed in any other state or- country, by a decedent who was' not- a citizen and inhabitant of this state, the petitioner must show by his petition, that the instrument propounded has been duly executed, as a good and valid testamentary disposition of the decedent's personal property, according to the laws of the state or country where he was domiciled, and where such alleged will was made, or it cannot be ad- mitted to probate here.(w) The prayer of the petition will be for a ci- tation pursuant to the seventh section of the act of 1837.(w) The petition having been filed, an order for the issuing of the cita- tion must be entered, and the citation must be made out, served and returned as in the usual case. The suggestions and directions hereinbefore given, on proving the will of an inhabitant, where all the parties interested in opposing the proof, voluntarily join in ^presenting the matter before the surrogate, apply with variations to suit the circumstances of the case to the pro- ving of a will of a non-inhabitant. The examination of witnesses and the taking of the testimony in the matter, are to be brought on and conducted pursuant to the statutory provisions, and the directions which are to be observed in the cases of wills of inhabitants. it has been held, that it is no objection to the proof of a wiU devising land in one state, t*"** it had been declared void in the state where the testator resided. Rice v. Jones, 4 Call, 89- See, also, Ives v. Alien,, 12 Verm. 589 ; Bloomer v. Bloomer, 2 Bradf. Surr. Eep. 339. (m) See ante, p. 143. (i) See 3 R. S. App. 634, sec. 63 to 69 ; Story's Confl. of Laws, 394, sec. 468 ; In the Matter of Boston's wiU, 6 Paige, 187. («>) See ante, p. PEOVING OF THE "WILLS OF NON-INHABITANTS. 177 With respect to personal property, the situs of the property, regu- lates jurisdiction as to the administration of the estate, which must be in the country in which possession is taken of it.(x) No will of per- sonalty can be recognized, except such as has been or may be admitted to probate by the proper tribunals of this state.ft/) If a will be made, and proved in a foreign country, disposing of personal property here, it must be proved where the assets are also.(2) As to the ques- tion what shall be considered a valid will of a noil -inhabitant, it is now a clearly established rule, of the courts of both England and the United States, that the law of the state or country in which the de- ceased was domiciled at the time of his death, not only decides the course of distribution or succession as to personalty, but regulates the decision as to what constitutes the last will of the testator, without regard to the place either of birth or death, or the situation of the property at that time.(a) It is deemed proper to insert in this place, the sections of the statutes authorizing the proving of wills in the Court of Chancery, [now the Supreme Court,] and the recording of wills so proved by the surrogate, and the issuing of letters thereon, and also certain sections making pro- visions with respect to wills of non-residents. They are as follows: Sec. 63. A will duly executed according to the laws of this state, where the witnesses to the same reside without the jurisdiction of this state, or a duly exemplified or authenticated copy thereof, where the original will is in the possession of a court or tribunal of justice in another country or state, whence, the same cannot be obtained, may be proved in the Court of Chancery, [now the Supreme Ccurt,] upon a commission to be issued for that purpose, on application to the Chan- cellor.(i) Sec. 64. Such commission may be issued upon the petition or bill of any person interested in the establishment of the said will ; and such notice shall be given to the parties interested to oppose the validity thereof as the Chancellor shall direct, or such notice may be dispensed with, where, from the circumstances of the case, it shall be deemed unnecessary. Sec. 65. If the facts necessary to establish the validity of the said (x) Preston v. Lord Melville, 8 -01. & F. 1. (v) Price V. Dewhursl, 4 My. & Or. 80; Bond v. Graham, 1 Hare, 484; Logan v. Fairlit 2 Sim. & Stu. 284. ■ (z) TaiMton v. Flower, 3 P. 'Wmg. 359. See Isham v. Gibions, 1 BradC Surr. Rep. 69. (o) The Countess de Zichij Ferraris v. Lord Hertford, 3 Curt. 468, 486 ; Graigie v. Lewin, 3 Curt. 435 ; In the Goods of Maravet, 1 Hagg. 498 ; Moore v. Budd, 4 Hagg. 346 ; Collier v. Eivax, 2 Curt. 855. A queslion is put in Story's Conflict of Laws, ch. 11, seo. 473, as to what will be tlie effect of a change of domicil alter the will is made, if it was valid hj the law of the place where the testator was domiciled when it was made, and not valid by the law of his domioil at the tune of his death. And that eminent writer expresses his opinion that the will in such a case is void ; for that it is the law of the actual domicil of the testa- tor at the time of his death, and not the law of his domicil at the time of making his will, which is to govern. Mr Justice Williams appends "sed quaere" to his note of this opinion of Judge Story. It is added in Story's Conllict of Laws, (sec. 4'73,) " If, however, the testator should afterwards return and resume his domicil, where his first will or testament was made, its original validity will revive also." (5) 2 It. S. 67. 12 178 PKOTING OP THE WILIS OF NON-H^THABITANTS. •will, shall appear on the proof so taken, the Chancellor shall direct the said will or copy, and the proofs or examinations, to be recorded in the office of the register of that court. Sec. 66. Every will or copy so proved shall have a certificate of such proof indorsed thereon, signed by the register, and attested by the seal of the Court of Chancery, and may then be read in evidence without further proof thereof; and every record so made, or an exemplifica- tion thereof, shall be received in evidence, and shall be as effectual in all cases as the' original will would be if produced and proved, and may in like manner be repelled by contrary proof Sec. 67. The provisions contained in the preceding four sections shall, extend to wills of personal as well as of real • property, and to wills already executed as well as to such as shall be hereafter executed ; and where there shall be assets of the testator within this state, and due notice shall have been given to the parties interested to oppose the will, the Chancellor may, by decree, establish the same as a will of personal estate ; and in such case shall transmit such decree to be re- corded in the office of the surrogate having jurisdiction, with directions to such surrogate to issue -letters testamentary or of administration with the will annexed thereon, in the same manner as upon wills duly proved before him. Sec. 68. Wills of personal estate duly executed by persons residing out of this state, according to the laws of the state or country in which the same were made, may be proved under a commission to be issued by the Chancellor ; and when so proved may be established and trans- . mitted to the surrogate having jurisdiction, as provided in the last preceding section ; and where a will so executed shall have been duly admitted to probate in such state or country, letters testamentary or of administration with the will annexed, may also be issued thereon by the surrogate having jurisdiction, upon the production of a duly exemplified or authenticated copy of such will, under the seal of the ' court in Avhich the same shall have been proved. Sec. 69. But no will of personal estate, made out of this state by a person not being a citizen of this state, shall be admitted to probate under either of the preceding provisions, unless such will shall have been executed according to the laws of the state or country in which the same was made. By the second section of the act of the 14th May, 1840, where a will of personal estate duly executed in this state, by a person not a resi- dent of this state, shall in the first instance have been duly admitted to probate in a court of a foreign state or country, letters testamentary or of administration with the will annexed, may be issued thereon by any surrogate having jurisdiction, upon the prod.uction of a duly exem- plified or authenticated copy of such will, under the seal of the court in which the same shall have been proved.(c) The language of this provision in enabling the surrogate to issue letters testamentary, or of administration, is equivalent to an authority to admit the will to pro- bate. The 77th section of the act of 1837 provides, as has been seen,(d) (c) S. L. 1840, sec. 2 ; 2 R. S. (4th ed.) 249, sec. 52. (d) Ante, p. 24, S. L. 1837, 537 ; 2 R. S. (4th ed.) 420, sec. 11. PROYING OF THE WILLS OP NON-INHABITANTS. 179 that on any proceedings or matter in controversy before a surrogate, when the testimony of a witness in any other state or territory of the United States, or any foreign place, is required by any party to such proceedings or controversy, the surrogate may issue a commission to take such testimony in the same manner as by law the same may be done in any court of record. Under this section the examination of the witnesses to wills executed abroad, and the witnesses to which resided abroad, has been taken in repeated instances, under commissions issued out of the Surrogate's Court. The usual and proper proceedings to prove the will having been instituted before the surrogate, he clearly acquired jurisdiction to issue the commission, when it waa found that the witnesses resided abroad, and their testimony was required by any party to the proceed- ings or controversy. The commission to examine such witnesses ac- cordingly duly issued. The language of the section is general, extending to "any proceed- ings or matter in controversy before a surrogate," and would seem to cover every case embraced in the foregoing sections of the Revised Statutes, authorizing the issuing of a commission by the Chancellor [now the Supreme Court.] Even the proving, under a commission issued out of the Surrogate's Court, of a duly exemplified or authenti- cated copy of a will, where the original will may be in the possession of a court or tribunal of justice in another country or state, whence the same cannot be obtained, and the proving of wills of personal estate, duly executed by persons residing out of this state, according to the laws of the state or country in which the same were made, may, if the preliminary proceedings show jurisdiction in the surrogate, by rea- son of the inhabitancy of the decedent within his county, or his death, leaving assets therein, or his having left personal or real estate therein, 'be deemed to be authorized by the words of this section. The Re- vised Statutes do not confer exclusive jurisdiction upon the Chancellor to issue the commission in these latter cases, any more than in^the cases where the witnesses simply reside abroad. As yet, however, wills in the possession of a foreign tribunal whence the same could not be obtained, and wills executed according to the laws of a foreign state or country, have invariably been proved under a commission issued out of the Court of Chancery, or since the new system went into operation, the Supreme Court. The practice in the Surrogate's Court on taking out a commission to prove a will, has been fully ex- plained at a previous page.(e) The law respecting the proving and validity of wills of personal property made by persons domiciled abroad, or executed out of this state, by persons not citizens of this state, is fully and clearly stated by the Chancellor in his opinion "/n the Matter of Catharine Roberts^ Wai:\f) He says: " There appears to be some difference of opinion among foreign ju- (e) Anle, pp. 158, 161. For directions as to the petition and proceedings on taking out a commission to prove a will in the Court of Chancery, see In the Matter of F, Atkinson's will 2 Paige, 214. In the Matter of Easion's will, 6 Paige, 183,. ' (/) 8 Paige, 524. 180 PEOVING OF THE "WILLS OP NON-INHABITANTS, rists, whether a will of personal estate, or movable property as it is called by the civilians, in which the testator has complied with the forms and solemnities required by the lex loci actus, is a valid testament- ary disposition of such property, although in the form of its execution, such will does not conform to the requirements of the law of the testa- ' tor's domicil. The better opinion, however, appears to be, that so far as regards the mere formal execution of the testament, it is sufficient if it conforms to the law of the country where the will is made ; in ac cordance with the maxim, locus regit actum. (See 17 Guyofs Beperi, Be Juris, art. Testament, 186 ; 4 Burge's Col. and Foreign Law, 583 ; Civil Code of Louis, art. 1589.) Probably the testament may also be valid, if made and executed in conformity to the law of the testator's domicil, although i| does not conform, in all respects, to the lex loci actus. (See Target's opinion in the case of the Duchess of Kingston's will, 1 Collect. Jur. 324 ; Story's Confl. of Laws, 391 ; 4 Burge's CoL and For. Laws, 582, 584, 590.) And it appears to be the generally received doctrine at the present day, that the status or capacity of the testator to dispose of his personal estate by will, depends upon the law of his domicil." " Our Eevised Statutes seem to contemplate the validity of a will of personal property, by a citizen of this state, if made in conformity to the requirements of our law, although executed out of this state, and in a place where the local laws require the adoption of a different form. This appears to be a distinct recognition of the principle that the will may be valid, if made and executed in conformity with the law of the testator's domicil. (2 E. S. (2d ed.^ p. 12, sec. 69.) The statute also in .express terms authorizes a will of personal property executed out of the state by a person not domiciled here, to be admitted to probate, provided it is duly executed according to the laws of the state or coun- try where the same was made ; and prohibits all other foreign wills from being admitted to probate under the special provisions incorpora- ted into the statutes by the amendments of April, 1830. As those pro- visions refer to the naode of establishing foreign wills under a commis- sion to be issued by this court, or upon the production of the foreign probate alone to the surrogate without further proof, they do not necessarily exclude the idea that a will of personal property made by a testator' domiciled abroad may be valid, if executed according to the law of his domicil ; although the form of its execution is not in accord- ance with the law of the place where he actually executed it, duriiig a temporary absence from his place of residence. But the mode of pro- ving such a will here, if it is valid, as I think it would be, must be differ- ent from that which is prescribed by these special provisions of the Eevised Statutes relative to foreign wills; and this court has no juris- diction in such a case." The omission in the statute adverted to by the Chancellor, to provide for the case of a will executed according to the law of the domicil of the testator, but not according to the law of the place where the will was made, was considered in the recent case of Isham v. Gihbons,(g) ((f) 1 Bradf. Surr. Eep. 69, T9. PROVING OF THE WILLS OF NOHT-INHABITANTS. 181 before the surrogate of the county of New York, and the surrogate came to the conclusion that the 77th section of the act of, 1837, (/i) authorizing the surrogate to issue commissions for the examination of witnesses abroad, enables foreign wills to be proved before him in all cases without resorting to the aid of the Court of Chancery or the Supreme Court, under the amendments of 1830. A will of personalty valid according to the law of the.domicil of the testator, but not valid according to the law of the place where it was made, may now, there- fore, be proved before the surrogate, under a commission issued for the examination of foreign witnesses. " I think," says the surrogate, " this completes the power of this court in relation to the probate of foreign wills, in all cases whatever, without reference to any special statutory provisions. There is here both jurisdiction to take the proof, and the means of taking it." It would without doubt be a correct and the safest rule on a will of a person not a citizen of this state, and who at the time of his death was domiciled abroad, and did not die in this state, being propounded before the surrogate, to pursue the practice prescribed in the preceding pages, and to require in the preliminary proceedings that a citation should be served on the next of kin, or other* persons entitled to the succession in case of intestacy, according to the lex domicilii of the de- cedent, and on proving its execution, that the competency of the dece- dent to execute a will according to the same law, and its execution according to the law of the place where it was executed, should be es- tablished. If, in addition to this, the persons cited in the preliminary proceedings should be those demanded by the laws of this state, and the will should be proved to have been executed in conformity with those laws, the whole ground will be covered. (?) Similar entries and orders are to be made and entered in the books of the surrogate upon the sufficiency of the proof of the will of a non- inhabitant, to those on the proof of a will of an inhabitant of the county ; and if the will be established, the record of the will and pro- ceedings will be in all respects like those in the latter case. The certi- ficate on the will, and the probate also, will be the same in form. If the will be not established, an order for its rejection must be entered, and the testimony must be recorded, as in the cases arising under the first subdivision of the statute. Upon the ground that the law of the domicil of the testator regu- lates the decision as to what constitutes his last will, it has been the practice in England upon the production of an exemplified copy of the probate granted by the proper court in the country where the deceased died domiciled, for the Prerogative Court to follow the grant upon the- ft) S. L. 183T, 537 ; 2 B. S. (4tli ed.) 420, sec. 11. Ante, p, 24. (i) The most eonvenient and the strictly correct course to be pursued in respect -to a will of a non-inhabitant, if it be important to take out probate here, is to obtain such probate on the production of a duly exemplified copy of the will, from under the seal of the proper court of the place of which the -deceased was an inhabitant. This would be conclusive of the validity and due execution of the will, according to the law of the domicil of the decedent. If the will relate to real estate as well as personal property within this state, as to the real estate, it must be proved according to the law of this state, and the record on such proof will be the only one necessary, although the probate be granted on the exemplification. 182 PROVING OF THE WILLS OF NON-INHABITANTS. application of the executor, in decreeing its own probate.(y ) The same practice is authorized by the above quoted 68th section of the statute, in respect to wills of personal estate duly executed by persons residing out of this state according to the laws of the state or country in which the same were made, and by the second section of the act of 1840, where such will shall have been duly executed in this state by a person not a resident of this state. The foreign decree of course does not goverrl proprio vigore, but is received as evidence, and is admitted not only ex comitate^ but for reasons of convenience, as in general affording the most ready, safe and certain mode of ascertaining that law which . is to decide the validity of the instrument.(A) Under the provisions of the statutes referred to, it has been the practice in the court of the surrogate of the county of New York, to admit and record the exem- plification of a will proved abroad, upon the production of a copy of the same under the seal of the foreign court or tribunal, without any evidence further than the seal and the papers themselves, of their authenticity. The will and the certificates of genuineness and proof are recorded at length. (For the usual form of the record, see Appendix, No. 22.) In the case of the will of a non-inhabitant, executed according to the law of the domicil, but aot according to the law of the place of execu-. tion, the same practice it seems is to prevail. The surrogate has, by express provision of the statute, exclusive jurisdiction to take the proof of the last will and testament of any deceased person, not an inhabi- tant of this state, dying in the county, and leaving assets therein. On the return of the citation to the widow and next of kin, instead of an original will being produced, and witnesses examined, should an ex- emplification of the probate of a will by a court of probate of a state or country where the deceased was domiciled, be offered in evidence before the surrogate, he would doubtless be bound to receive it as the highest evidence of a valid will. Once having acquired jurisdiction of the subject matter, it seems clear that he should be governed by those universal rules, which, in the application of the lex domicilii to testa- mentary cases, have been recognized by sound and enlightened jurists, and have been received with appr6)bation by courts of justice.(Z) The mandate from the Court of Chancery for the recording of a will proved there, by the surrogate of the county having jurisdiction, is, pursuant to the above section numbered 67, entered upon the record entire, (m) (]) 'Waiiams on Exrs. 308. (4) 1 Bradf. Surr. Kep. 15. (J) Isham V. Gibbons 1 Bradf. Surr. Rep. 15. • (m) This record, in tlie office of the surrogate of the county of New York, will be found in the book of surrogate's daily minutes. The proving of lost and destroyed wills, is provided for and regulated by the following sec- tions of the statutes. Although not necessarily embraced within the design of this work, they are Jiere inserted for the purpose of presenting a complete view of the subject. Sec. 70. [Sec. 63.] Whenever any will of real or personal estate shall be lost or destroyed by accident or design, the Court of Chancery shall have the same power to take proof of the execution and validity of such wUl, and to establish the same, as in the case of lost deeds. 2 R. S. 67. Sec. 71. [See. 64.] Upon such wiU being established by the decree of a competent court, such decree shall be recorded by the surrogate before whom the wiU might have been proved, f not lost or destroyed, and letters testamentary, or of administration, with the will annexed, CERTAIN EZEMPLIFICATONS, COPIES AND RECORDS OF WILLS. 183 Of Certain Exemplifications, Copies and Records of Wills. An exemplification of tlie record of a will, merely, without the proofs, cannot be received in evidence. The whole record (including the proofs) must be certified.(re) The record of a will is only^ prima facie evidence of its authenticity, and may be repelled by contrary proo£(o) Sec. 20. The exemplification of the record of any last will and tes- tament, proved before the judge of the former Court of Probates, and recorded in his office before the first day of January, one thousand seven hundred and eighty-five, certified under the seal of the officer in whose custody such record shall be, shall Jje received in evidence in all cases, after it shall have been made to appear that diligent and fruitless search has been made for the original will.(j3) Sec. 1. The exemplification of the record of any last will and testa- ment, proved before the surrogate of any county in this state, before the first day of January, one thousand eight hundred and thirty, cer- tified under the seal of the officer having the custody of such record, shall be received in evidence with the like effect, as if the original will had been produced, (g') Sec. 68. The clerks of the Supreme Court, and the surrogates of the several counties, may make exemplified copies of any last will which shall have been proved in their respective courts as a will of real estate, together with all the notices, citations and proofs relating to the same ; and such exemplified copies may be recorded in the book kept for re- cording wills of real estate by the surrogate of any county in which any lands of the testator shall be situated. The fees for such copies, and recording the same, shall be paid by the person on whose appli- cation the services shall be rendered.(r) The act of the 11th May, 1846, provides as follows : Sec. 1. Any will of real estate, which shall have been duly proved in the Supreme Court, or Court of Chancery, or before the surrogate of any county in this state, with the proofs taken on the proof thereof, and the certificate of proof annexed thereto, or indorsed thereon, may be recorded in the clerk's ofiice of any county in this state, in the sarne manner that conveyances of real est%te are now authorized to be re- corded. Any exemplification of the record of any such will from the •ofi&ce of the clerk of the'Sapreme Court, register, assistant register, or shall be issued thereon by him, in the same manner as upon wills duly proved before him. 2 R. S. 6-?. By the 73d Section, (2 R. S. 68,) it is declared that these two sections shall extend to wills of real and personal property executed at the time the act took effect. By the 74th section, it is declared, that no will of any testator who died after the sixth chapter of the second part of the Revised Statutes took effect as a law, shall be allowed to be proved as a lost or destroyed wUl, unless the same shall be proved to have been in exist- , enoe at the time of the death of the testator ; or be shown to have been fraudulently de- stroyed in the lifetime of the testator; nor unless, its provisions shall be clearly and distinctly proved by at least two credible witnesses, a correct copy or draft being deemed equivalent to one witness. (n) Morris v. Keyes, 1 Hill, 540. (o) 2 R. S. 58, sea 15. ip) 2 R. S. 59 ; 4th ed. 243. {q) S. L. 1850, chap. 94, p. 143. As ainended by S. L. 1852, chap. 175, p. 236; 2 B. 3. (4th ed.) 649, 1035. (r) S. L. 1837, 536 ; 2 R. S. (4th ed.) 243. 184 OF PROVING NUNCUPATIVE WILLS. clerk in Chancery, or surrogate, where the same may be recorded, or from any other office where the same hereafter by law be recorded, majr, in like manner be recorded in the clerk's office of any county. The record of such will or exemplification so made as aforesaid, and the exemplifications of such record shall be received in evidence, and shall be as effectual in all cases as the original will would be, if pro- duced and proved, and may, in like manner be repelled by contrary proof(s) Sec. 3. On recording any such will or exemplification, the clerk shall index the same in the indices of deeds, substantially as such clerks are now required to index deedfe' recorded in their offices. Sec. 4. Such clerks shall receive for such recording, the same fees .which shall be, from time to time, allowed them for the recording of conveyances of real estate ; and any executor of a will, or administra- tor with the will annexed, who shall procure such will to be recorded in the clerk's office of any county in which the lands devised thereby may be situated, shall be allowed the fees paid by him for such record-, ing in the settlement of his accounts.(<) By the act of June 24, 1851, (m) the provisions of the act of 1846, so far as they relate to the clerks of the several counties of this state, are declared to apply to the register of the city and county of New York, with the like effect as to the clerks of the other counties of this state, . and as if such register had been specifically named in said act.(i') Of Proving Nuncupative Wills. Sec. 22. No nuncupative or unwritten will, bequeathing personal es- tate, shall be valid, unless made by a soldier while in actual military service, or by a mariner while at sea.(w;) (s) S. L. 1846, chap. 182, p. 204 ; 2 R. S. (4th ed.) 169, sec. 42. (t) lb. (u) S. L. 1851, chap, ill, p. 555; 2 E. S, (4th ed.) ITO. (v) Sec. 81. [Sec. 67.] The clerk of every county in this state, the register of deeds in the city and county of New York, and the surrogate of every county, upon being paid the fees allowed therefor by law, shall receive and deposit in their offices respectively, any last will or testament which any person shall deliver to them for that purpose, and shall give a writ- ten receipt therefor to the person depositing the same. 2 R. ■€. 404 ; 4th ed. 660. See. 82. [Sec. 68.] Such will shall be enclosed in a sealed wrapper, so that the contents thereof cannot be read, and shall have indorsed thereon the name of the testator, his place of residence, and the day, month and year when delivered, and shall not, on any pretext whatever, be opened, read or examined, until delivered to a person entitled to the same, as hereinafter directed. lb. Sec. 83. [Sec. 69.] Such will shall be delivered only. 1. To the testator in person ; or, 2. Upon his written order, duly proved by the oath of a subscribing witness ; or, 3. After his death, to the persons named in the indorsement on the wrapper of such will, if any such indorsement be made thereon ; or, 4. If there be no such indorsement, and if the same shall have been deposited with any other officer than a surrogate, then to the surrogate of the county. lb. Sec 84. [Sec. 70.] If such will shall have been deposited with a surrogate, or shall have been delivered to him as above prescribed, such surrogate, after the death of the testator, shall publicly open and examine the same, and make known the contents thereof; and shall ffle the same in his office, there to remain until it shall have been duly proved, if capable of proof, and then to be delivered to the person entitled to the custody thereof; or until required by the authority of some competent court to produce the same in such court lb. (w) 2 R. S. 60 ; 4th ed. 243. See ante, p. 119. PROCEEDINGS TVHEEE THE WITNESSES ARE DEAD, ETC. 185 Applications, for the proof of nuncupative wills are unfrequent. In the court of the surrogate of the county of New York, none have been proved for the last several years. The preliminary proceedings for obtaining probate must be similar to those on proving written wills. The petition should properly set forth the expressions of the decedent which are proposed to be es- tablished as testamentary. The citation to the next of kin ought to state the will as an unwritten one. There must be at least two wit- nesses who were present at the uttering of the words, and the will ' itself Avill be embodied in their testimony. The probate will contain the will as made up from their statements.(a;) Of Proceedings where all the Subscribing Witnesses to a Will are Dead, Insane, or Non-residents. Sec. 16. If it shall appear to the satisfaction §f the surrogate that all the subscribing witnesses to any will devising real estate, are dead, in- sane, or reside out of the state, the surrogate shall take and rec|ive such proof of the handwriting of the testator, and of either or all the subscribing \vitnesses to the will, and of such other facts and circum- stances as would be proper to prove such will on a trial at la.w.{y) Sec. 17. The proofs and examinations taken under the last prece- ding section, shall be signed, certified and recorded by the surrogate as herein before provided, and the will shall be deposited with him. Sec. 18. The record of the proofs and examinations taken pursuant to the provisions of the two last preceding sections, and the exemplifi- cations of such record, by the surrogate in whose custpdy it may be, shall be received as evidence upon any trial or controversy, concerning the- same will, after it shall have been proved in such trial or contro- versy, that the lands in question therein have been uninterruptedly held under such will, for the space of twenty years before the com- mencement of the suit in which such trial or controversy shall be had ; and shall be of the same force and "effect as if taken in open court, upon such trial, or in such controversy. (s) The preliminary proceedings under these sections must be like those in the ordinary case of proving devises of real estale. The same prac- tice was expressly required in both cases by the Statute of 1813,(a) from which these provisions are taken, and it is presumed that it was not intended to alter the rule under the Eevised Statutes. The proofs and examinations are to be signed, certified and recorded by the surrogate, and the will is to be deposited with him, but not to be recorded. There should be a certificate at the end of the record, stating that it had been made to appear, to the satisfaction of the surrogate, that all the subscribing witnesses to the wiU are dead, insane, or reside out of (x) See Hubbard t. SiMard, 12 Barb. Sup. Ct. Eep. 148 ; Prmce v. Sazelton, 20 Johns. 502 ; ante, pp. 119, 121 (y) 2 R. S. 59 ; 4th ed. 242. (z) See In the Matter of Hornby's will, 2 Paige, 429. (a) E. L. 1813, 365, sees. 6 to 9. 186 COMPELLING THE PRODUCTION OF A "WILL, ETC. the state, and that, such record had been made pursuant to these sec- tions of the statute. It will occur to the reader, that the ■will may be admitted to probate aud recorded, as to the personal estate, under the 20th* section of the law of 1837, (^) and that the same' record will be sufficient as to the tes- timony under the sections in question, if the certificate above described be annexed, and the wUl be deposited with the surrogate. Of Cora'pelling the Production of a Will before the Surrogate for Proof. The 10th and 11th sections of the first title of the 6th chapter of the 2d part of the Eevised Statutes, contain the only existing provisions for compelling the production of a will before the surrogate.(c) Under the Eevised Statutes, previous to the law of 1887, the pre- liminary proceedings on proving wills of real estate, as was shown at a previous page,(c?) were by notice of the intention to prove the will given to the heirs of the testator. ■ • The above mentioned 10th section provides that witnesses may be summoned by subpoenal, to be issued Ijy the surrogate, at any time before the day specified in such notice, which may be served as in case? of personal actions; and a clause may be added to any such subpoena, commanding any person having the custody of, or power over any such will, to produce the same before the said surrogate, for the purpose of being proved. By the 11th section, disobedience to any such subpoena shall be pra- ceeded against and punished, as in other cases of proceeding before surrogates. K any person be committed for not producing any wUl, he may be discharged, on producing the same to the surrogate who committed him, by an order for that purpose. By the 18th section of the act of 1837,(e) these provisions are made applicable to' wills of both real and personal estate, or either ; and- it is directed that the said tenth section shall apply to proceedings by citation under the said act, in the same manner that it formerly applied to proceedings on notice under the Revised Statutes. It will be observed, then, that a person having the possession of a will, cannot be obliged to produce the same before the surrogate, un- less in obedience to a subpcena duqes tecum, directed to him for that purpose. This, by tfee words of the section, may be issued before the day specified in the notice, (citation,) which implies that the proper preliminary proceeding for proving the will should be first taken. The sabpoena may be issued whilst the citation is running, and may be made returnable on the return day of the citation. Subpoenas under these sections will be similar to that at Appendix No. 9, adding the duces tecum clause. The minute of issuing the same to be made by the surrogate should describe the subpoena as a subpcena duces, tecum. Sec. 75. [Sec. 68.] The provisions of the first title of the 6th chapter it) See ante, p. 183. c) 2 R. S. 58 ; 4th ed. 242. (d) Ante, p. 142, notex. (e) See ante, p. 161. THE APPOINTMENT OF BXECUTOKS, ETC. 187 of the second part of the Eevised Statutes, in relation to the proof and probate of wills and the jurisdiction of the surrogate, and his proceed- ings thereon, apply as well to wills made ■ previous, as to those made subsequent to the time when the said chapter took effect.(/) Sec. 77. [Sec. 70. J The provisions of the said title are uot to be con- strued to impair the validity of the execution of any will made before the said chapter took effect, or to affect the construction of any such will.(/j • Sec. 78. [Sec. 71.] The term " will," as used in the said chapter, in- cludes all codicils, as well as wills.(/) Appeals from decrees of surrogates, either establishing or rejecting a will, will be considered under the general head of appeals from the orders and decrees of surrogates. CHAPTER III. OF T !I5 APPOINTMENT OP EXBOUTORS, THR GRANTING OP LETTERS TES- TAMENTARY, ANP THI-: ACCb;PTANCE OR REFUSAL OP THE OPF'' J-; OP EXEOUTOR. An executor, as the term is at present accepted, may be defined to be, the person to whom the execution of a last will and testament of personal estate is, by the testator's appointment, confided.(a) " To appoint an executor," says Swinburne,(6) " is to place one in' the stead of the testator, who may enter to the testator's goods and chattels, and who hath action against the testator's debtors,' and who may dispose of the same goods and chattels, towards the payment of the testator's debts,^n'd performance of his will." The bare norfination of an executor, without giving any legacy, or appointing anything to be done by him, is sufficient to make it a will, and as a will it is to be proved.(c) Who is capable of being an Executor. Grenersilly speaking, all persons, who are capable of making wills, and some others besides, are capable of being made executors.(c?) From the earliest time it has been a rule, that every person may be an ' executor, saving such as are expressly forbidden.(e) The statute expressly declares what persons are forbidden to become executors. They are, generally, such as are incapable in law of making a contract, under the age of twenty-one years, aliens not inhabitants of (/) 2 R. S. 68. (a) 2 Black. Conun. 503 ; Farrington v. KnigMVy, 1 P. Wms. 548, 549 1 Toller, 30 ; "Wms. on Exrs. 185. (6) Swinb. part 4, sec. 2, pi. 2. (c) Godolph. part 2, ch. 5, sec. 1. See CampheU v. Logan, 2 Bradf. Surr. Eep. 90, 94. (d) 2 Black. Com. 503. (e) Swinb. part 5, sec. 1, pL 1. 188 APPOINTMENT OF EXECUTORS. this state, those convicted of infamous crimes, or who are incompetent to execute the duties of the trust by reason of drunkenness, improvi- dence or want of understanding.(/) The precise terms of the statutory- provision will be particularly considered, and more conveniently, in connection with the subsequent branch of the present chapter of the granting of letters testamentary. Of the appointment of executors. — By what words Executors may he appointed. An executor can derive his office from a testamentary appointment oiily.(^) " Ilis appointment may either be express or constructive, in which case he is usually called executor according to the tenor; for, although no executor be expressly nominated in the will, by the word executor, yet, if by any word or circumlocution, the testator recommend, .or com- mit to one or more the charge and office, or other rights which appertain to an executor, it amounts to as much as the ordaining or constituting him or them to be executors.(/i) " As .if he declare by his will that A. B. shall have his goods after his death to ' pay his debts, and otherwise to dispose at his pleasure,' or to that effect, by this A. B. is made executor.(/') So, if the testator say, 'I commit all my goods to the administration of A. B.,'(y) or 'to the disposition of A. B. ;\k) in this case he is made executor. And where certain persons were directed by the will to pay debts, funeral charges, and the expenses of proving the will, they were held to be clearly executors according to the tenor.(Z) So, where the testator in a codicil, said, ' I appoint my nephew my residuary legatee, to dis- charge all lawful demands against my will,' the nephew was admitted exeoutor.(m) So, if the testator say, ' I make A. B. lord of all my goods,"(w) or ' I make my wife lady of all my goods,'(o) or ' I leave all my goods to A. B.,' {p) or ' I leave A. B. legafery of all my goods, '((^) or ' I leave the residue of all my goods to A. B..'{qq) it will amount to the appointment of such persons respectively as executors according to the tenor."(r) (/) See 2 K. S. 69, (4th ed.) 256. (?) Wms. on Ezra. 196. (ft) Swrinb. part 4, sec. 4, pi. 3 ; Godolph. part 2, ch. 5, sec. 2 ; Wentw. Off. Ex^20, (14th edition.) (i) Ibid. So, where one aaid on his death-bed to his wife that she should pay aU and take aM, by this she was executrix. Brightman \. Keighley, Oro. Eliz. 43. {j) Godolph. part 2, ch. 5, sec. 3 ; Bro. Executors, pi. 13. (k) Pemberton v Gony, Oro. Eliz. 164; Godolph. part 2, ch. 5, sec. 3. So, if he says, "I will that A. B. shall dispose of my goods which are in his custody," he is thereby made executor of those parcels of goods. Ibid. (l) In the Goods of Fry, 1 Hagg. 80. (to) Grant v. Leslie, 3 Phillim. 116. in) Godolph. part 2, ch, 5, sec. 3 ; Swinb. part 4, sec. 4, pi. 3. (o) Swinb. part 4, sec. 4, pi. 3. (p) Godolph. part 2, oh. 5, sec. 3 ; Swinb. part 4, sec. 4, pi. 3. ((/) Ibid. (qq) Ibid. " I devise all my personal goods to my two daughters and my wife, whom I make executrix ;" this was holden to appoint them all three executrioes. Foxwith v. Trc- _ maine, Ventr. 102. (r) Wms. on Exrs. 196-7. In Androvm v. PoUblanc, 3 Atk. 301, Lord Hardwicke said ft BT WHAT 'WORDS EXECUTORS MAT BE APPOINTED. 189 So, in the case of the Avill of Eobert Bogardus, deceased, before the surrogate of the county of New York, 4th December, 1841, the words of the will were, " I do hereby give, devise and bequeath, unto my loving wife Maria Sabina, all my estate, both real and personal, of what kind or nature soever the same may be, to have and to hold the same to her my said wife, her heirs and assigns, to the only proper use, benefit and behoof of my said wife, her heirs and assigns forever, with full power to grant, bargain, sell, alien and dispose of the same ;" and there was no express appointment of an executor. It was held, that Mrs. Bogarjius was entitled to letters testamentary, and the same were granted to her. , Again, in Mc parte McDonneU,{s) where the testator bequeathed as' follows : " After all. my just debts being paid, I wish my brother, Edward McDonnell, to invest my property, consisting of a farm near Dubuque ; about six hundred dollars in the Greenwich Savings' Bank ; one hundred and fifty dollars owing to me by my said brother, E. McD., and one hundred dollars lent by me to J. McD. ; my stock of liquors and chattel property, when converted into cash — the whole amount to be invested in some safe bank in the city of New York, and the interest aecruing thereupon to be transmitted semi-annually to my fathei: ; and the capital at my father's death, to be divided, share and share alike, among my three brothers ;" it was held, that the brother was appointed executor according to the tenor. " It is very manifest," said the surrogate, " that the testator has here committed the adminis- tration of all his estate to his brother Edward. The words, ' after all my just debts being paid,' if they were followed by a mere gift, Avould throw a doubt over such a construction. But they are in immediate connection with the bestowal of powers identical with those of an executor, such as the collection, sale and conversion of his estate into cash, its investment, the payment of the interest, and the distribution of the principal. It could not have been designed to entrust these im- portant duties to his brother, and commit to an administrator the pay- ment of his debts ; on the contrary, the most sensible reading seems to be that the payment of debts, as well as the other executory powers mentioned in immediate connection, were all intended to be committed to the charge of the same person, instead of being broken and separated. It thus appearing that the testator designated his brother as the person to execute his will, and the use of the word "executor" not being essential to the appointment, letters testamentary may issue to the applicant. So, where there was a mutual will executed by a husband and wife at the Island of St. Croix, where the parties were then resident, accord- ing to the Danish law, and the will declared that the survivor, during his or her natural life, should " remain in full and undivided posses- sion" of all the estate, " real or personal, landed property or movable, person named " universal heir," in a will, would have a right to go to the Ecclesiastical Court for the probate See, also, Fleming v. Baling, 3 Call, 75 ; Wentw. Off. Ex. p. 20, (14th edition ;) Swinb. part 4, sec. 4, pi. 1. See FrisweU v. Moore, 3 Phillim. 138, HiUam y. Walker, 1 Hagg. 11, and In the Goods of Davis, 3 Curt. 748, 749, for instances where a party was held not to be executor according to the tenor. Pickering v. Towers, 2 Cas. Temp, Lee, 401. S. C, Arabl. 3S4. («) 3 Brad£ Surr. Sep. 32. 190 BY WHAT "WORDS EXECUTORS MAT BE APPOINTED. nothing whatsoever excepted, ■without any interference of the Dealing Court or any other authority." This being a common, if not usual provision, in the mutual wills made according to the course of the civil law, and its effect being to devolve upon the survivor the whole administration of the estate. It was held, that this was a constructive appointment of the survivor, to be executor — an authority implied from the general bequest' of the entire estate, " in full and undivided possession," and that the widow, who was the survivor, might, there- fore, qualify as executrix according to the tenor.(i;) But where a testator, being entitled to many shares in the Sun Fire office, and in tTie ^uines of Scotland, and a lease for years of a coal meter's place, gave the same, by a will containing no appointment of an executor, to trustees in trust for his daughter, and after several contingencies, gave the remainder thereof to his son, and if he should die in his minority without issue, gave the remainder thereof to the trustees for their own use, and gave all the residue of his estate to the said trustees, to pay one moiety to his daughter, and the other moiety to his son ; it was held, that there were no words in this will that made the trustees executors ; inasmuch as they had only power to pay what was vested in them as trustees, to the particular persons for whose use they held it, but had not a general power to receive and pay what was. due to and from the estate, which is the ofiioe of an execu- tor. (z() "An executor may be appointed by necessa,ry implication: as where the testator says, ' I will that A. B. be my executor, if C. D. will not ;' in this case C. D. may be admitted, if he jslease, into the executor- ship.(v) So, where the testator gave a legacy to A. B. and several legacies to other persons, among the rest, to his daughter in law, C. D. ; immediately after which legacies followed these words : ' But should the within-named C. D. be not living, I do constitute and appoint A. B. my whole and sole executrix of this my last will and testament, and give her the residue ;' probate was decreed' to C. D., as -executrix by implication, according to the tenor of the will.(w) Or, if the testator, supposing his child, his brother, or his kinsman, to be dead, say in his will : ' Forasmuch as my child, my brother, &c., is dead, I make A, B. my executor ;' in this case, if the person whom the testator thought dead be alive, he shall be executor, (a;) So, where a man made his last will, and did will thereby, that none should have any dealings with his goods until his son came to the age of eighteen years, except J. S., by this J. S. was held to be made executor during the minority of the son.(?/) Where the testator named his wife hia executrix, and A. B. (fj M parte McOormick, 2 Bradf. Surr. Eepts. 1S9. (u) Bodicott V. Balzell, 2 Cas. Temp. Lee, 294. See, also, Fawkener v. Jordan, Ibid. 32? | "Wms. on Bxrs. 198. (v) Godolph. part 2, ch. 5, sec. 3 ; Swinb. part 4, aeo. 4, pi. 6. If the testator makes A. B. or C. D. his executors, in this case they shall both be executors, for, "or" shall be construed "and." Godolph. part 2, ch. 5, sec. 3, ch. 3, sec. 1. (w) Naylor v. Siaimby, 2 Cas. Temp. Lee, 54. ho) Godolph. part 2, ch. 5, sec. 3 ; Swinb.' part 4, sec. 4, pi. 6. (y) Brightman v. Keighley, Cro. Eliz. 43. However, in Godolphin, part 3, ch. 3, sec. 5, it is laid down, that if the testator say, "If my son, A. B., marry with C. D„ let him not be my executor," or " one of my executors," this would not hold; because an " executor may not be instituted, nor the office of executor inferred, only by oonjecturals." See Wms. on Exrs. 198-9. APPOINTMENT OF EXECUTORS MAT BE QUALIFIED. 191 to assist her, it was held that A. B. might be executor according to the tenor.(3) " Although, -when there is an express appointment of an executor, it is less probable that there should be an indirect appointment to the same office, ^et there is no obje.ction, either in principle or practice, to admit an executor according to the tenor to probate, jointly with an executor expressly nominated. Thus, in Powell v. &'trat/brd,{a) the testator's wife was expressly named as executrix ; and Lord H. was to assist her, but he was not called executor ; the court said ho might be so according to the tenor.(&) Applications, however, for letters testamentary, by persons appointed executors, by construction or implication, or otherwise than expressly, are not favored by the courts , and if there be any dispute or uncer- tainty in the case, the party must take administration with the will annexed. An executor may be appointed solely, or in conjunction with others : but in . the latter case, they are all considered in law in the light of an individual person.(c) Likewise a testator may appoint several persons as executors in several degrees ; as where he makes his wife executrix, but if she will not, or cannot be executrix, then he makes his son executor : and if his son will not, or cannot be executor, then he makes his brother, and so on.(ci) In Avhich case, the wife is said to be instituted executor in the first degree, B. is said to be substi- tuted in the second degree, C. to be substituted in the third degree, and so on.(e) It must be observed, that if an instituted executor once accepts the office, and afterwards dies intestate, the substitutes, in what degrees soever, are all excluded ; because the condition of law, (if he will not, or cannot be executor,) was once accomplished by such ac- ceptance of the instituted executor.(/) But where a testator appoints an executor, add provides that, in case of his death, another should be substituted : on the death of the original executor, although he haa proved the will, the executor so substituted may be admitted to the office, if it appear to have been the testator's intention that the substi- tution should take place on the death of the original executor, whether happening in the testator's lifetinae, or afterwards.((^) In what Ways the Appointment of Executor may he Qualified. The appointment of an executor may be either absolute or qualified. (z) Powell V. Stratferd, cited 3 Phfflim. 118. (a) Prerog. 1803, 3 Phillim. 118. See, also, Collard v. Smith, Prerog. 1799 ; Ibid. 11'?. (6) "Wms. on Bxrs. 200. See, also, Grant v. Leslie, 3 Phillim. 116. If a man makes J. N. his executor, and devises goods to him, and to W. S., to devise for his soul, W. S. is executor of these goods by these words as well as J. N. is. Bro. Executors, pi. 98. See, also. Lynch V. Belleui, 3 PhUlim. 424 ; In the Goods of Aird, 1 Hagg. 336. In the Goods of Gringan, 1 Hagg. 548 ; the testator in this case died in Scotland ; and Sir John Nicholl said, he was informed that such a provision, as to the appointment of executors, is not very unusual in that country. (c) Toller, 3Y. See post. (d) Swinb. part 4, sec. 19, pi. 1 ; Godolph. part 2, ch. 4, sec. 1. (e) The substituted executor cannot propound the wUl, till the person first named execu- tor has been cited to accept or refuse the office. Smilh v. Crofts, 2 Caa. Temp. Lee, 557. (/) Swinb. part 4, sec. 19, pi. 10 ; Godolph. part 2, ch. 4, sec. 2. (g) In the Goods of Ughton, 1 Hagg. 235 ; Wms. on Exrs. 201-2. 192 OF AN EXECUTOR DE SON TORT. It may be absolute, when he is constituted certainly, immediately, and without any restriction in regard to the testator's effects, or limitation in point of time.Qi) It may be qualified, by limitations as to the time or place wherein, or the subject matters whereon, the of&ce is to be exercised : or the creation of the of&ce may be conditional. (i) But qualified appointments of executors are extremely'uncommon in this state, and the subject is not deemed one warranting extended comment in these pages. Of the Transmission of the Appointment of Executor. Although the executor cannot assign the executorship,(;) yet it was formerly the law that the interest vested in him by the will of the de' ceased might, generally speaking, be continued and kept alive by the will of the executor ; so that, if there was a sole executor of A., the executor of such executor was, to all intents and purposes, the execu- tor and representative of the first testator. (^) But this is now expressly abolished by statute, the Eevised Statutes providing on the subject as follows : Sec. 17. No executor of an executor shall, as such, be authorized to administer on the estate of the first testator ; but, on the death of the sole or surviving executor of any last wUl, letters of administration with the will annexed, of the assets of the first testator left unadminis- tered, shall be issued in the manner and with the authority hereinafter provided.(Z) Sec. 11. An executor of an executor shall have no authority to com- mence or maintain any action or proceeding relating to the estate, effects or rights of the testator of the first executor, or to take any charge or control thereof, as such executor.(m) Of an Executor de Son Tort, ^ Formerly if one, who was neither executor nor administrator, inter- meddled with the goods of the deceased, or did any other act charac- teristic of the office of executor, he thereby made himself what was called, in the law, an executor of his own wrong, or, more usually, an executor de son tort.{ii) When a man had so acted, as to become in law an executor de son tori, he thereby rendered himself liable, not only to an action by the (h) Toiler, 36. Swinb. part 4, sec. 17, pi. 1 ; Wentw. Off. Ex. 22, (14th edition.) (t) Wms. on Exra. 203. (j) JBeddl V. Constable, Vaugh. 182, (k) See Wms. on Bxrs. 207, and authorities cited. (Z) 2 R. S. 71 ; 4th ed. 257. For the manner of issuing letters of administration, with the will annexed, see post, chap. 4. (m) 2 R. S. 488 ; 4th ed. 691. (n) "The definition of an executor de son tort, by Swinburne, Godolphin and Wentworth, is in the same words, viz., "He who takes upon himself the ofBoe of executor by intrusion, not being so constituted by the deceased, nor, for want of such constitution, substituted by the [Ecclesiastical] Court to administer." Swinb. part 4, sec. 23, pi. 1. Godolph. part 2, ch. 8, sec. 1. Wentw. Off. Ex. ch. 14, p. 320, (14th edition.) But the term is in the older books, sometimes apphedto a lawful executor, who mal-administers ; as by the Lord Dyer, in Stokes V. Porter, Dyer, 167 a." "Wmg. on Exrs. 210. See Givo's v. Biggins, 4 MoCord, 286. OF AN EXECUTOR DE SON TORT. ' 198 rigTitful executor or administrator, but also to.be sued as executor by a creditor of tbe deceased, or by a legatee ; for an executor de son tort had all the liabilities, though none of the privileges, that belong to the character of executor, (o) But now, an executor de son tort, in the sense of the old law, is probably not known to the law of this state. By the Eevised Statutes, it was enacted as follows : Sec. 78. [Sec. 60.] Every person who shall take into his possession any of the assets of any testator or intestate, with6ut being thereto duly authorized as executor, administrator or collector, or without authority from the executor, administrator or collector, shall be liable to account for the fall value of such assets to every person entitled thereto, and shall not be allowed to retain or deduct from such assets for any debt due to him.(p) Sec. 17. No person shall be liable to an action as executor of his own wrong, for having received, taken, or interfered with, the prop- erty or effects of a deceased person ; but shall be responsible as a wrong-doer in the proper action to the executors, or general or special* administrators of such deceased petson, for the value of any property or effects so taken or received, and for all damages caused by his acts to the estate of the deceased.(g) Under these provisions of the statutes, no one can be liable to an action, or to account to the next of' kin, as an executor of his own wrong. Where persons have received and disposed of the property of a testator, without having been duly appointed his executors, or duly authorized to act as such, they are liable to his personal representa- tives, whenever such representatives shall have been appointed ; but not to persons claiming to be next of kin of the decedent merely. The proper course for the next of kin, in such a case, is to procure the ap- pointment of an administrator, and have a suit instituted in his name, to recover the property from any person into whose hands it may have come, and who has converted it to his own use.(r) And where a per- son named as one of the executors of a will, but who omitted to qualify and was not named as an executor in the letters testamentary, signed the notice of appraisement of the estate, and subscribed and swore to the affidavit' annexed to the inventory ; it was held, that he Avas not - estopped from denying that he was executor, and that the surrogate could not make or enforce an order to compel him to account.(s) In Thorpe v, Amos,{t) one of the defendants, alleging a donatio mortis causa, had obtained possession of some $30,000 money of .the testator. There being no evidence to sustain the gift, theperson who had obtained possession of the money was held responsible as a wrong-doer, and she and a colluding executor were held liable for the whole sum, although (o) Garmichael T. Garmichael, 1 PhilL C. C. 103, per Lord Cottenham. See Wms. ou Bxrs. 217. ip) 2 R. S. 81 ; 4th ed. 267. (q) lb. 449; 4th ed. 691. (r) Miiir v. Trustees of the Leake and Watts Orphan Mouse and others, 3 Barb. Oh. Rep. 477. See, also, Brown v. Brown, 1 Barb. S. 0, R. 195, per MoCown, T. C. Is) Wme/r v. Marvin, 14 Barb. S. C. R. 376. (<) 1 Saudf. Oh. Rep. 26. 13 194 FORM AND MANNER OF ISSUING LETTERS TESTAMENTARY. they had distributed it among themselves and the others, although they were permitted to be subrogated to the claimant's remedy against the latter. Of the Form, and Manner of issuing, and the Nec^sity of obtaining Probate or Letters Testamentary. A copy of the will by which the executor is appointed, certified un- 'der the seal of the Surrogate's Court, is usually called the probate, or the letters testamentaiy.(M) Mr. Kirtland, in his "Treatise on Surrogates' Courts, observes that the meaning of probate of a will, is generally un- derstood to be, the proving the will, making a copy of the same, indors- ing the proof on the copy, and granting letters testamentary, under the seal of the surrogate, and annexed to the copy of the will.{w) The Re- vised Statutes, however, by directing that each surrogate shall keep a book in which to record all letters testamentary, (w) and by making special and separate provisions regulating the issuing of such letters, and applying to them alone, would seem to require that they should be con- ' sidered as something distinct from the probate. Accordingly, in the county of New York, the probate has consisted of a copy of the will, with a certificate annexed thereto of the correct- ness of the same, and that the will has been duly proved, and a further certificate simply setting forth the facts that the executor has duly qua- lified, and that letters testamentary have been issued to him. (For form of the probate, see Appendix, No. 20.) The letters testamentary have been granted and issued apparently as the credentials of the executor's authority to administer the goods, &c., of the testator, and to execute his will, and it has not been the practice to annex to them a copy of the will. The surrogate before whom the will shall have been proved, has ex- clusive jurisdiction to issue the letters testamentary. The statutory provision is as follows : Sec. 20. [Sec. 28.] When any will of personal property shall have been proved before any surrogate having jurisdiction, the jurisdiction over the executors, and the power of granting letters testamentary and of administration with the will annexed, with all powers incidental thereto, shall be exercised exclusively by the surrogate who first took the proof of such will ; and no other surrogate shall have power to grant letters of adniinistration upon the estate of such testator.{x) , And, as has already appeared, the probate of a will of personal pro- perty taken by a surrogate having jurisdiction, is conclusive evidence of the validity of the will until such probate be reversed or revoked, or the will be declared void.(2/) The Surrogates' Courtis, therefore, the only court, in which the valid- ity of wills of personalty, or of any testamentary paper whatever re- lating to personalty, can be established or disputed.(a) Equity indeed f«) See Wms. on Exra. 239. (v) Kirtland's Surrogate, (ed. 1835,) p. 46. (w) 2 li. S. 222 ; 4tli ed. 420 ; Ante, p. 25. Ix) 2 R. S. 61 ; 4th ed. 243. (y) Ante, p. 112 ; 2 R. S. 61 ; 4th ed. 244, sec. 21, (see. 29.) (z) Fonblanq. Treat, on Bq. part 2, oh. 1, sec. 1, n. a ; Bao. Abr. Exra. (E.) 1 ; Post, part 1, book 5, eh. 1 ; Gascoyne v. Chandler, 2 Gas. Temp. Lee, 241. FORM AND MANNER OF ISSUINO LETTERS TESTAMENTARY. I95 considers an executor as > trustee for the legatees in respect to tlieir lega- cies, and in certain cases as trustee for the next of kin, of the undis- posed surplus : and as all trusts are the peculiar objects of equitable cognizance, courts of equity vfill compel the executor to perform these, his testamentary trusts, with propriety. Hence, although in those courts, as well as in courts of law, the seal of the Surrogate's Court is conclusive evidence of the factum of a will of personal property, (a) an equitable jurisdiction has arisen of construing the Avill, in order to enforce a pro- per performance of the trusts of the executor. The courts of equity are accordingly sometimes called courts of construction, in contradistinction to the Surrogate's Court, which, although they also are courts of construc- tion, are the only courts of probate.(&) The consequence of this exclusive jurisdiction in the Surrogate's Court is, that an executor cannot assert or rely on his right in any other court, without showing that he has previously established it in the Surrogate's Court :(c) the usual proof of which is, the production of the letters testa- mentary or of the probate. In other words, nothing but the probate, or letters testamentary, (or letters of administration Avith the will an- nexed, when no executor is therein appointed, or the appointment of executor fails,) or other proof tantamount thereto, of the admission of the will in the Surrogate's Court, is legal evidence of the will in any question respecting personalty .(c?) Of the granting of the Letters Testamentary. The probate, or letters testamentary, is, however, merely operative as the authenticated evidence, and not at all as the foundation of the exe- cutor's title, for he derives all his interest from the will itself, and the property of the deceased vests in him from the moment of the testator's death. Hence, the probate when produced is said to have relation to the time of the testator's death, (e) The present purpose is to treat of the granting of the letters testa- mentary. Those terms are in this chapter to be understood in the pe- culiar and limited sense adopted and applied in the Ke vised Statutes. In other places, as the words probate and letters testamentary are con- vertible terms, they will be used indifferently. Of the Surrogate who must issue the Letters Testamentary. Besides the provision of the statute already recited,,(/) specifying the surrogate who shall have jurisdiction to issue the letters testamentary, the Eevised Statutes further provide as follows : (a) See ante, p. 111. (i) See Wms. on Exrs. 238 ; Ante, p. 41. (c) See Henshe's case, 9 Co. 38 a; Wentw. Off. Ex. 83, (14th edition.) Treat, on Bq.book 4, part 2, ch. 1, sec. 2 ; Chaunter v. Chaimter, 11 Vin. Abr. 205. (d) Bex V. Nethxrseal, 4 T. B.. 260. If a will be made in a foreign country, and proved there, disposing of goods in England, the executor cannot have action on such probate, but must prove the wiU there. Lee v. Moore, Palm. 165 ; Tourton y. Flower, 3 P. Wms. 370. .Wms. on Exrs. 239. And the law la the same here. Lawrence v. Lawrence, 3 Barb. Oh. Rep. 71; Smith v. Weib, 1 Barb. S. C. Rep. 230. See, also, Brown v. Brown, 1 Barb^ Ch. Rep. 189. (e) Wms. on Exrs. 239, and cases cited. (/) Ante, p. 194; 2 R. S. 61; 4th ed. 243, sec. 20, [Sec. 28.], 198 SURROGATE WHO MUST ISSUE LETTERS TESTAMENTARY. Sec. 1. When any will of personal estate shall have been duly admitted to probate, the surrogate who took such proof shall issue letters testa- mentary thereon, to the persons named therein as executors, who are competent by law to serve as such, and who shall appear and qualify.(jr) OJ the Persons who are not competent ly Law to serve as Executors. The general rule is,, as has already been stated,(A) that every person may be an executor ; saving such as are expressly forbidden. Those per- sons who are forbidden are declared by the statute as follows; Sec. 3. No pei'son shall 'be deemed competent to serve as an execu- tor, who, at the the time the will is proved, shall be — 1. Incapable in law of making a contract, (except married women ;) 2. Under the age of twenty-one years ; 3. An alien, not being an inhabitant of this state ; 4. AVho shall have been convicted of an infamous crime ; 5. Who, upon proof, shall be adjudged incompetent by the surrogate to execute the duties'of such trust, by reason of drunkenness, improvi- dence, or want of understanding. If any such person be named as the sole executor in any will, or if all the persons named therein as executors, be incompetent, letters of administration with the will annexed, shall be issued, as hereinafter pro- vided, in the case of all the executors renouncing. (i) Sec. 4. No married woman shall be entitled to letters testamentary unless her husband consent thereto, by a writing to be filed with the surrogate ;, and by giving such consent he shall be deemed responsible for her acts jointly with her.(w) The disqualifications specified in the first three subdivisions of the statute, do not admit of any comment. With respect to the fourth sub- division, it should be observed that no degree of legal or moral guilt or delinquency is sufficient to exclude a person from the executorship, un- less such person has been actually convicted of an infamous crime. And ■ the conviction intended by the statute must be upon an indictment or other criminal proceeding.(y) And if the applicant has been guilty of an infamous crime, the surrogate cannot hold it a bar, unless the record of his conviction be produced.(/(;) The improvidence specified as a disqualification by the fourth sub- division is, that want of care or foresight in the management of property Avhich would be likely to render the estate and effects of the testator unsafe, and liable to be lost or diminished in valiie by improvidence, in case administration thereof should be committed to such improvident person. The principle of .exclusion, in this part of the statute, is based upon the ■«'ell known fact that a man, who is careless and improvident, or who is wanting in ordinary care and forecast in the acquisition and preservation of property, for himself, cannot with safety be entrusted (j) 2 R. S. 69 ; 4tli ed. 255. (h) Ante, p. 187. (i) 2 B. S. 69 ; itli ed. 255. {ii) lb. ( j) Coope v. Lowcrre, per Chan. Walworth, 1 Barb, Ch. Hgp, 4T. See, also, Bmrism T. UcMahon, 1 Bradf. Surr. Kep. 289 : S. 0., on Ap. 10 Barb. S. C Rep. 659. (ft) 1 Bradf Surr. Rep. 289. PERSONS "WHO ARK NOT COMPETENT TO SERVE AS EXECUTORS. 197 with the management and preservation of the property of others.(Z) The fact that a man is dishonest, and seeks to obtain the possession of the property of others by theft, robbery, or fraud, is not evidence of his providence or of his improvidence. The surrogate has nothing to do with the immorality of the applicant's occupation, nor can vice or moral delinquency of themselves disqualify a person to act as executor. There are of necessity, degrees of improvidence, from the extreme of habitual and thoughtless waste and extravagance, to occasional or rare improvidencies. The degree requisite to sustain the exclusion of a man who seeks to be an executor, must be such as to render him " in- competent to execute the duties of the trust." A man grossly negligent in the management of his property and affairs, and in the contracting of debts, by indorsing for strangers, or for men Avithout visible means of payment, may nevertheless not be improvident to such a degree as to render him incompetent to discharge the duties of an executor.(m) Insolvency does not, under the statute, incapacitate a person from being appointed an executor. It is not always evidence of improvidence, or want of prudence. Misfortune will often overtake and ruin the most provident and prudent.(n) But a man who follows gambling as a pro- fession, is from the very nature of his occupation disqualified by reason of improvidence.(o) A married* woman is entitled to letters testamentary, only on filing the written consent of her husband thereto, and then he becomes respon- sible for her acts jointly with her. (For form of consent of the husband to the issuing of letters testa- mentary to his wife, see Appendix, No. 23.) If, after letters testamentary issued to her, the executrix marry, it is not necessary for her husband to file a written consent with the surro- gate, to render him liable for her acts as such executrix. The above provision only applies to cases where the executrix is a, feme covert when she applies for letters testamentary.(^) The power of the husband of a married woman, executrix, is substan- tially that of an executor. His wife cannot act without his concurrence, and he has the power of disposition over the estate. In all proceedings relative to the estate, either the "party moving or the executrix, may set up the joint liability of the executrix and her husband ; and the husband will then be cited jointly with his wife, to abide the orders of the court in the due administration of the estate.(^) And where the husband of a married woman, executrix, was the surviving partner of the testator, it was heM that a statement of the partnership affairs was incidentally necessary to the settlement of the accounts of the estate, and that the husband of the executrix must render sach co-partnership account.(r) (l)2Coope V. Lowerre, 1 Barb. Ch. Rep. 41; Emerson v. Bowers, U Barb. Sup. Ct. Rep. 658. (m) See 1 Barb. Ch. Rep. 45. (n) See In the Matter of the estate of William Post, deceased. Dayton's Surr. (1st ed.) Appdz. (o) See McMahon v. Ha/rrison, 10 Barb. S. C. Rep. 659. (j>) Bunce v. Vandergrift, 8 Paige, 37 ; Woodruff \. Cox, 2 Bradf. Surr. Rep. 153. Xq) Woodrvffv. Cox, 2 Bradf. Surr. Rep. 153. (/•) Marre v. Ginochia, 2 Brad£ Surr. Rep. 166. 198 EBMOTAL OP THE DISABILITIES IK CERTAIN CASES. Of the Removal of the Disabilities in certain Cases. Sec. 5. If the disability of a person "under age, or beir)g an alien, or a married woman, named as executor in any will, shall be removed before the execution of such will is completed, such person shall be entitled, on application, to supplementary letters testamentary, to be issued in the same manner as the original letters, and shall thereupon be authorized to join in the execution of such will, with the persons previously appointed.(s) When there are two or more executors named in the will, they may severally qualify at different times, from choice, and although no dis- ability exist in the case, and the proving of the will on the application of one of the executors, enunes to the benefit of all. If two or more executors qualify at different times, the second and subsequent letters must recite the issuing of the first or previous letters, and contain a clause committing fhe administration, &c., to the one newly quahfied, in conjunction with him or them to whom letters have already been issued. The new executor takes out a duplicate of the probate. Of the Time wheri Letters Testamentary may he granted — of Objections to granting the same, and of the Disposition of such Objections. Sec. 22. Letters testamentary may be, granted at any time after the will shall be proved, unless an affidavit shall be made by a widow, legatee, next of kin, or creditor of the testator, setting forth that such person intends to file objeictions against the granting of such letters testamentary, and that he is advised and believes that there are just and substantial objections to the granting of such letters to the execu; tor§ named in the will, or some one or more of them. And upon filing such affidavit with the surrogate, he shall stay the granting of letters testamentary for at least thirty days, unless the matter shall be sooner disposed o£(<) Sec. 6. If objections be made by any creditor of the testator, or any legatee, relative, or other person interested in his estate, against grant- ing letters testamentary to one or more of the persons named in the will as executors, the surrogate shall inquire into such objections ; and if it appear that the circumstances of any person named as such exe- cutor, are such that, in the opinion of the surrogate, they would not afford adequate security to the creditors, legatees and relatives of the deceased, for the due administration of the estate, he may refuse letters testamfentary to any such person, until he shall give the like bond as is required by law of administrators in cases of intestacy. (m) Under these provisions of the statutes, if the circumstances of the executor are such as not to afford adequate security for the faithful discharge of his trust, and the objection is made by a person interested in the estate, the surrogate is bound to require security from the exe- (s) 2 R. S. TO ; 4th ed. 255 (i) S. L. 1837, 528 ; 2 R. S. (4th ed.) 255, sec. 2. («) 2 R. S. 10 ; 4th ed. 255 ; form of the bond of administrators. See Fast, ch. 4. TIME WHEN LETTERS TESTAMENTARY MAY BE GRANTED, ETC. 199 cutor, and it is not material to inquire whetlier the testator was aware of the want of responsibility in the executor at the time of making the will. For, if the testator has been so improvident as to commit the administration of his estate to one of insufficient security for the due discharge of his trust, the court must interfere for the protection of the estate against the effects of such improvidence. And where it is proved or admitted that the person named as executor, is about to remove from the state, the surrogate must require security from him, although the directions of the will are that the executor remove with the property bequeathed into another state.(t;.) The affidavit of intention to file objections should set forth that the party is widow, next of kin, or creditor of the deceased, or a legatee under his will as the case may be, and that he or she is advised and believes that there are just and substantial objections to the granting of letters testamentary to the executor or executors named in the will. Thirty days are allowed, after having filed the affidavit, within which to file the objections and dispose of the matter ; and within that period, until the objections are filed, all proceedings are stayed. If the objec- tions be not filed within the thirty days, the letters testamentary issue, of course. And if when filed within the thirty days, the matter is not disposed of at the expiration of that period, if the objecting party prose- cute the matter with diligence, the surrogate will still stay the issuing of the letters. The objections should distinctly, state every ground of complaint which the objector may have against the granting of the letters to the person applying therefor. They may include any disa- bility comprehended in the above quoted section, numbered 3, and upon any such disability being established, letters must be refused. The above quoted section, numbered 6, simply provides for a bond being taken in the single case of the inadequate security of the person ■ named as executor. And if the objection be on that ground, such par- ticulars as to the situation and value of the estate of the decedent, and the pecuniary circumstances of the executor or executors should be stated as 'prima facie^ to render it probable that the estate of the testator will not be safe in their hands.(ty) Upon filing the objections, the surrogate proceeds to inquire into the same, and if duly prosecuted they operate as a caveat^ and will stay the issuing of letters until they are removed or dismissed. The practice on the investigation is not pointed out by the statute. It may be ex parte, as the statute does not prescribe otherwise ; but unless both par- ties voluntarily appear before the surrogate, the course is for either to obtain an order, requiring the other to appear before the surrogate within a reasonable time, and proceed with the inquiry. The statute directs, that on filing the affidavit of intention to object, the surrogate " shall stay the granting of letters testamentary for at least thirty days, unless the matter shall be sooner disposed o£"(a;) It is clear, therefore, that the matter may be disposed of before the expira- tion of thirty days; and, no specific time being allowed to file the ob- jections, the whole proceeding is under the control of the surrogate. If (v) Wood V. Wood, i Paige, 299. (w) See Colegrnve v. Horton, 11 Paige, 263. {x) Laws 1837, oh. 460, sec. 22. 200 GRANTING LETTERS TESTAMENTART TO NON-RESIDENTS. the executor comes in and demands the exhibition of the objections, and there appears no reasonable ground for delay, it is competent to order the objections to be filed, to hear the allegations of the parties; and determine the case within thirty days. The parties having appeared, witnesses are examined, the same as in other cases. If the objector fail to appear, the objections will be dis- missed, and the letters testamentary will issue. If the person named as executor make default, the surrogate will then inquire into the ob- jections ex parte^ and decide upon the merits of the same. A decree must be entered in conformity with the surrogate's decision. (For forms of affidavit, objections, orders to appear, and decree, see Appendix, No. 24.) ■ Of granting Letters Testamentary to Non-residents. Sec. 7. If any person, applying for letters testamentary, shall be a non-resident of the state, such letters shall not be granted until the ap- plicant shall give the like bond as is required by law of administrators in cases of intestacy. (y) (For form of bond, see Appendix, No. 33.) Of the Executor's Oath. Sec. 13. Before any letters testamentary shall issue to any executor, he shall take and subscribe an oath or affirmation before the surrogate, or in case of sickness or other inability to attend the surrogate, before any officer authorized to administer oaths, that he will faithfally and honestly discharge the duties of an executor ; which oath shall be filed in the office of the surrogate.(3) By the 59th section of the Act of 1837,(a) the oath of office -of execu- tors may be administered by the surrogate, or by any commissioner of deeds or judge of county courts. And by chapter 173 of the Laws of 1849,(6) the clerk or clerks of the surrogate of the county of Kings, appointed in pursuance of that act, and by chapter 201 of the Laws of 1850, the assistants appointed by the surrogate of the county of New York have authority to administer this oath.(c) This oath is not usually taken until after the will has been proved. As it is prospective in its terms, and as the probate relates to the time of the death of the testator, there would seem to be nothing improper in its being taken, whether the will has been proved or not. The qualification would probably be equally valid after the will had been admitted to probate, although the executor had been sworn in pre- viously. (For form of the executor's oath, see Appendix, No. 27.) (j/) 2 R, S. 10; 4th ed. 256. For form of the hond, see post, oh. 4. («) 2 R S. 71 ; 4th ed. 256. By chapter 223 of the Laws of 1833, p. 306, this oath, ia Suffolk county, may be taken before any officer authorized to administer oaths. ■a) S. L. 1837, 534 ; 2 R. S. (4th ed.) 271, sec 18. )) S. L. 1849, 235; 2 R. S. (4th ed.) 700. (c) See ante, p. 15. REVOCATION OF "WILIS. 201 The letters testamentary issue in the name of the people of this state, are tested in the name of the surrogate, and signed by him, and sealed with his seal of ofdce, and are recorded in a book provided for that pur- pose.((;Z) A certificate of the record is annexed to the' letters. (For the form of the letters, with the certificate of record, see Ap- pendix, No. 28.) Limited probates are almost entirely unknown in practice in this state. The court may grant a limited probate, where the testator has limited the executor. And it is laid down, that if a man makes and appoints an executor for one particular thing only, as touching such a statute or bond, and no more, and makes no other executor, he dies in- testate as to the residue of his estate, and as to this specialty only shall have an executor, and must have a will proved ; but in case he makes another will for the residue of his estate, there must be two wills proved. However, where there is an executor appointed without any limitation, the court can only pronounce for the will, or for an absolute intestacy. It cannot pronounce the deceased to be dead intestate as to the residue, though the executor may eventually be considered only as a trustee for the next of kin. The probate of a will of a /eme covert should not be general, but limited to the property over which she has a disposing power ; and her husband will be entitled to have a grant of administration cceterorum.{e) So, in general cases, if the will be limited to any specific effects of the testator, the probate shall also be so limited, and an administratw coeterorum granted.(/) Of the Executor's Refusal or Acceptance of the Office, and of Renunciation hy a Person named as JEaxcutor. The ofiice of executor being a private one of trust, named by the testator, and not by the law, the person nominated may refuse, though he cannot assign the office ;(p') and even if in the lifetime of the testator he has agreed to accept the office, it is stUl in his power to recede. (A) But though the executor cannot be compelled to accept the execu- torshijD, whether he will or not, yet provision is made by the Revised Statutes for summoning the person named as executor before the sur- rogate, to the intent that he may qualify as executor, or be deemed to have renounced the appointment. The following are the sections of the statute relating to this subject : Sec. 9. If any person named as executor shall not appear to qualify (d) 2 R. S. 80, sees. 55, 58 ; 222, sec. 1. See ante, p. (e) Wms. on Exrs. 314, 316, and oases cited. Burger v.SiU, 1 Bradf. Surr. Rep. 360, 314. But letters testamentary issued hj the surrogate of the county of New York, of the wills of married women, made under a power, have not heretofore been in anywise different from those issued of the wills of other persons. (/) Wms. 317 ; Toller, 68. See, also, as to limited appointment of an executor, Breath and wife v. Brtnt, 3 Dana, 130. ig) Bao. Abr. Bxrs. (B.) 9. See Douglas v. Forrest, i Bingh. 104, in the judgment of Best, C. J. (A) Doyle v. Blake, 2 Scho. & Lef. 233. "Wms. on Exrs. 225. A person napied as ex- ecutor may delay taking out letters at his pleasure, and unless he has renounced, or objec- tions be takea against him, he will be entitled to them at any time on duly qualifying. 202 EXECUTORS REFUSAL OR ACCEPTANCE OF THE OFFICE, ETC. and take upon himself the execution of a will, within thirty days after the same was proved, and shall not have renounced, the surrogate shall, on application of any other executor, or of the widow, or any of the next of kin, or any legatee, or creditor of the testator, issue a sum- mons, directed to s\ich executor, requiring him to appear and qualify, within a certain time therein to be limited, or that, in default thereo:^ he will be deemed to have renounced the said appointment.(i) Sec. 10. If the person to whom such summons is directed, reside within this state, it shall be served personally on him, at least fourteen days before the time limited therein for him to appear. And if he re- side or be out of the state, or his residence be unknown, such summons may be served by publishing it in the state paper, for at least six weeks before the time therein specified for such person to appear. Sec. 11. In case sickness or other accident, or any reasonable cause exist, to prevent the attendance of such person, upon the same being proved to the surrogate, he may, in his discretion, allow a further time for such person to appear and qualify.(y) Sec. 12. If any person so notified shall not appear according to the tenor of such summons, or within the time allowed by the order of the surrogate, and qualify as an executor, by taking an oath and giving a bond, if one shall have been required, he shall be deemed' to have re- nounced the appointment of executor, and the surrogate shall there- upon enter an order, reciting the said summons, the proof of the service thereof, and such subsequent order, allowing time, if any was made, and the neglect of such person to appear and qualify, and declaring and de- creeing, that such peison has renounced his appointment as such ex- ecutor. (^) A party having filed objections to the granting of letters to a person named as executor, may, under these provisions, after the expiration - of thirty days from the proving of the will, compel the person named as executor, to appear before the surrogate, and thus determine his qualifications for the duties of executor, or obtain a decree that he has renounced the appointment. (For forms of application and proceedings under these sections, see Appendix, 'No. 26.) Where a legatee or other person interested in the personal property under a wUl, desires to realize such legacy or interest, and the executor neglects or refuses to prove this will or qualify, he must prove the will before the proper surrogate, according to the provisions of the statutes which were considered in the last preceding chapter, (Z) and then obtain a summons, and take proceedings under these sections. If the execu- tor still fails to qualify, he will procure the decree declaring that the ex- ecutor has renounced his appointment. He will then make an applica- tion for the appointment of an administratoi; with the will annexed.(m) (i) 2 R. S. '70 ; 4th ed. 256. (j) Ibid, 11; 4th ed. 256. (k) Ibid. {I) Ante, p. 186 ; S. L. 1831, ch. 460, sec. 4 ; 2 I{. S. (4th ed.) 248, sec. 4t. (to) This is the meaning of the remark of the Chancellor in Brown v. Brown, 1 Barb.. Oh. Eep. 189, 214, where certain, stocks were held in this state by a citizen ot another state, at the time of his death, and who died in that state, leaving a Will executed there which the THE CONSEQUENCES OE RENUNCIATION BT AN EXECUTOR. 203 A person named as executor may also decline tlie office by express renunciation. The statute provides as follows: Sec. 8. Any person named as executor in a will, may renounce sucli appointment, by an instrument in writing, under his hand, attested by two witnesses ; and on the same being proved to the satisfaction of the surrogate who took proof of the will, it shall be filed and recorded by Mm.(n) (For form of renunciation, see Appendix, No. 25.) Renunciations and their proofs are recorded by the surrogate in a book by them- selves. An executor cannot in part refuse. He must refuse entirely or not at all.(o) The Consequences of Renunciation hy an Executor. An executor who has renounced, may, at any time before the issu- ing of administration with the will annexed, retract his renunciation. (^) And in England, even an executor who has renounced in order to be- come a witness in a suit commenced touching the validity of the will, may, at the termination of such suit, retract his renunciation, and take probate of the will ; but this is not done without the consent of all parties in court.((?) If a sole executor or each of several executors renounce, and an ad- ministrator with the will annSxed be appointed, who is removed or dies in the lifetime of the executor, such executor may thereupon retract his renunciation, and will be entitled to letters testamentary. This has been adjudged differently in England, on an objection of the inconve- nience which might occur in other quarters from claims of executor- ship once broken being thus suffered to revive ; should the deceased, for instance, have been the surviving executor of other testators, and should administrations have been granted of their effects, on the renun- ciation of his executors, if the chain of executorship were to revive, there would be double and conflicting representations* of such testa- tors ; the one by grant of administration, the other by the revived chain of executorship ; the law in England still giving authority to an execu- tor of an executor, , as such, to administer to the estate of the first testa- tor. (g'g) The law in this state formerly conferred upon an executor of an executor the same authority, but, as has already been noticed, (r) it was expressly taken away by the Revised Statutes, and the ground of executors had not proved here, and the Chancellor said, " The only remedy of the complain- ant, as one of the residuary legatees, if he wished to obtain the proceeds of such stocks and the dividends accrued thereon, after the debts and general legacies of the testator had been paid, was to cite the executors to prove the will, and take out letters testamentary thereon in this state ; and if they should neglect to do so, to have himself or some other person appointed administrator with the will annexed." (n) lb.; 2R. S. 70; 4th ed. 256. (o) Wms. on Exrs. 232, and cases cited. (p) Bobertson y.McGeogh, 11 Paige, 640. (q) "Wms. 232, and cases cited. {qg) Wms. 233. (r) Ante, f. 192. 204 THE CONSEQUENCES OP RENUNCIATION BY AN EXECUTOR. the objection being thus removed, no inconvenience of the kind men- tioned can here be alleged in the case in question.(s) When there are several executors, and some renounce and one or more take out probate, the renunciation is not peremptory, and such as renounce may, after the death of their co-executors, upon retracting, take out probate.(<) The remaining executor may retract his renunciation at any time be- fore the grant of letters testamentary .to his co-executors, or in case all have renounced of administration, with the will annexed. But after such grant he cannot retract, so as to entitle himself to letters testa- mentary, during the lives of the qualifying executors, or of the admin- istrator with the will annexed ; and although, after the death of the qualifiying executors, or of the administrator with the will annexed, the surviving executor is entitled to come in and retract his re- nunciation, if he thinks proper so to do, at any time before the grant- ing of administration, de bonis non; yet, if he has not retracted, and his renunciation still remains recorded against him, it is not requisite that he should renounce a second time, or that he should be cited, before a good and valid grant of administration, de bonis 7ion, to another, can be made. And the executor, after such a grant has been made, cannot procure it to be revoked and obtain a grant of probate to himself, on a retraction of his renunciation, made subsequently to the actual grant of administration, de bonis non.{u) A decree made by the surrogate on proceedings before him, pursuant to the statute,(v) that a person named as executor has renounced his appointment, is probably of no greater force to prevent his subsequent- ly taking out letters testamentary, than a voluntary renunciation. Of Letters Testamentary of the Wills of Foreigners. It remains to submit some remarks with respect to the granting of letters testamentary of the wills of foreigners and non-residents. If the testator died without leaving any personal property in this (s) See Robertson v. McCfeogh, 11 Paige, 640, 642. But see Thornton v. Winston, 4 Leigh, 152. This question is now before the Supreme Court at General Term, in the Third District, in the case of Boyd v. Davis, upon an appeal from a decree of the surrogate of the county of Albany, holding that after administration with tlie wiU annexed issued, the renunciation of the person named as executor is peremptory, and cannot be retracted, so as to entitle him to letters testamentary after the death or removal of the administrator with the wUl annexed. (i) Judson Y. Gibbons, 5 Wend. 227, per Savage, C. J. ; Robertson v. McGeogh, 11 Paige, 640 ; see also Bodle v. Sulse, 5 Wen. 313. Mr. Justice WilUams, in his treatise, (last edition, p. 234,) says, " Such as refuse, however formally, may, at a subsequent time, come in and ad,- minister, and although they have never acted during the lives, they may assume the execu- torship after the death of their co-executors." In previous editions of tliis work, the expres- sion was, following Sir Samuel Toller's treatise, p. 45, " at any subsequent time." On the strength of which, as was stated in the first edition of this work, p. 53, in a case before the suriogate of the county of New York, where there were two executors named and one re- nounced, and the other took out letters testamentary, and the former, a short time afterwards, and in the lifetime of the otlier, applied for letters ; the application was granted and the let- ters issued. But such a practice probably is not warranted by the authorities Chief Justice Savage, in Judson v. Gibbons, 5 Wend. 227, says that should the executor renounce, " though he cannot in that case take letters testamentary dwimg the life of such as prove the will, yet should he survive them, he is entitled to administration of the estate, and to letters testa- mentary." («) 2 Roberts, 406. See "Wms. on Exrs. 234^5, and cases cited. («) Ante, pp. 201, 202. OP LETTERS TESTAMENTARY OF THE WILLS OF FOREIGNERS. 205 State, generally speaking, Ms will need not be proved in any Surro- gate's Court here. Bat if a foreign executor should find it necessary to institute a suit here, to recover a debt due to his testator, a personal representative must be constituted by the proper Surrogate's Court here, to adminis- ter.(io) Letters testamentary, issued in another state of the United States, will not sustain a suit brought by the executors, in the courts of this stato.(a;) And where two executors are named in a will, and one of them has taken out letters testamentary in this state, and the other has not, the one Avho has obtained letters here, may sue in his own name alone, without naming the others as a party.(?/) B-ut where the plaintiffs, though executors, appointed in another state, are also the owners, for example, of a bond and mortgage, on which a suit is brought in a court of this state, as residuary legatees, and by purchase of the inter- est of their co-legatees, the title having thus passed by delivery, though without any written assignment, they may recover in the court of this state, without taking out letters testamentary here.(2) And it seems that, where an executor, having proved the will of his testator in one state, assigns a chose in action of his testator, a suit may be .brought thereon by the assignee in his own name, in another state, without any probate of the will therein, if the law of the latter state permits the as- signee of a chose in action to sue in his own name. (a) Likewise, if a will be made in a foreign country, and proved there, disposing of personal property in this state, the executor must prove the will here also.(aa) All personal property follows the person, and the rights of a person constituted in this state the representative of a party deceased, domiciled in this state, are not limited to the personal property in this state, but extend to such property, wherever locally situate.(Z)) However, the rights of the executor of a testator, domiciled in this state, in respect to property belonging to him in another state or coun- try, can only be enforced, generally, by the procurement of probate, or administration in such other state or foreign country. It has been seen(c) that wills of personal estate, duly executed by persons residing out of this state, according to the laws of the state or (w) See "Wms. on Exrs. 301, and cases cited. Morrell v. Dickey, 1 John. Oh. Eep. 156; Williams v. Siorrs, 6 lb. 353 ; Voolitle v. Lewis, 7 lb. 47 ; ShuUz v. Pidver, 3 Paige, 182 ; S.C., on appeal, 11 Wend. 572; McNamarav. Dwyer, 7 Paige, 239; Vroom v. Van Home, 10 lb. 556; Campbell v. Tousey, 7 Cowen, 64; EobinsonY. Orandall, 9 Wend- 425; Story's Confl. of Laws, 421, sec. 512; Lawrence v. Lawrence, 3 Barb. Oh. Eep. 71 ; Smith v. Webb, 1 Barb. Sup. Ct. Eep 230; Sedgwick v. Ashlumer, 1 Bradf. Surr. Rep. 115. See, also, Brown v. Brown, 1 Barb. Ch. Eep. 189. {x) 1 Barb. Sup. Ot. Eep. 230. This, perhaps, is not the rule in all the states of this coun- try, although it prevails generally. In North Carolina, probate and letters testamentary issued in South Carolina, authorize executors to sue in the former state. Stephens v. Smart, 1 Law Eep. 471. See also cases cited in notes to Wms. on Exrs. (3d American edition) 300, 301. (y) 3 Barb. Ch. Rep. 71. . (z; 1 Barb. Sup. Ot Eep. 230. (a) Harper v. Builer, 2 Peters' S. C. U. S. Eep. 239. (aa) See Wras. 302, and cases cited. (6) Ibid. 303. (c) Anle, p. 178; 2 E. S. 67 ; 4th ed. 253. 206 LETTERS TESTAMENTARY OE THE "WILLS OF FOREIGNERS.' country in -which the same were made, may be proved under a commission, to be issued by the Supreme Court; and when 'so proved, may be es- tablished and transmitted to the surrogate having jurisdiction, with di- rections to such surrogate to issue letters testamentary, or of adminis- tration with the will annexed, thereon, in the same manner as upon wills duly proved before him ; and that, where a will so executed shall have been duly admitted to probate in such state or country, letters testa- mentary, or of administration with the will annexed, may also be issued thereon, by the surrogate having jurisdiction, upon the production of a duly exemplified or authenticJited copy of such will, under the seal of the court in which the same shall have been proved. It has further, already appeared, that, where a will of personal estate duly executed in this state, by a person not a resident of this state, shall in the first instance have been duly admitted to probate in a court of a foreign state or country, letters testamentary, or of administration, with the will annexed, may be issued thereon, by any surrogate having jurisdiction, upon the production of a duly exemplified or authenticated copy of such will, under the seal of the court in which the same shall have been proved.(d) The statute relative to the granting of letters of adminis- tration, provides as follows : Sec. 31. In all cases where persons, not inhabitants of this state, shall die, leaving assets in this state, if no application for letters of administration be made by a relative entitled thereto, and legally competent, and it shall appear that letters of administration on the same estate, or letters testamentary, have been granted by compe- tent authority, in any other state of the United States, then the per- son so appointed, on producing such letters, shall be entitled to letters of administration in preference to creditors, or any other persons, ex- cept the public administrator in the city of New York.(e) Under these provisions' it has been the practice, tipon the production of an exemplified copy of the probate granted by the proper court of the place where the deceased died domiciled, for the Surrogate's Court here to follow the grant upon the application of the executor, in decree- ing its own probate and letters testamentary ; and this whether the ex- emplification produced came from a court of another state of the United States, or from a court of a foreign country.(/) The provisions of the {S} S. L. 1840, 326; 2 R. S. (4th ed.) ITS. Letters testamentary, or of administration with the will annexed, are issued under this section, and the will is admitted to probate and re- cord, the same as in cases under sec. 68, (2 R. S. 67,) upon the production of a copy of the will, under the seal of the foreign court or tribunal, without any evidence, further than the seal and the papers themselves, of their authenticity. (e) See post, ah. 4, p. ; 2 R. S. 75 ; 4th ed. 260. (/) See Isham v. Gibbons, 1 Bradf Surr. Rep. 69. In Larpent v. Sindrey, (IHagg. 382,) however, Sir J. NichoU said, that the question, how far other couris of probate were to be governed by the decision of the Court of Probate where the deceased was domiciled, had never been expressly determined. And on a, subsequent occasion, in a case where the de- ceased had died domiciled in India, and probate of the wiU had been granted at Madras to his widow, as " universal legatee and constructive executrix," the same learned judge poinled out the inconvenience of the practice, and again expressed his doubt how far the court was bound to foUow the Indian probate; and he ultimately refused to grant probate to the widow, " as constructive executrix," (in which character she would have been "exempted from giving any security,) but allowed administration with the will annexed to pass to her " as relict and principal legatee," upon her giving security. See Wms. on Exrs. 308-9. LETTERS TESTAMENTARY OF THE WILLS OF FOREIGNERS. 207 31st section of the act relative to granting letters of administra- tion, above quoted, seemingly giving a preference to the relatives of the deceased, over the executor appointed by a foreign court, are prob- ably to be understood as really applying only to cases of intestacy ; and so much of that section as gives a preference to the public admin- istrator in the city of New York, over " creditors or any other persons," is to_ be construed also with reference ty cases of intestacy alone, and to the provisions of the 27th section of the same act concerning the granting of administration, which gives a preference in cases of intes- tacy to the public administrator in the city of New York, " after the next of kin" of the intestate, " over creditors and all other persons."(g') The rules of law for ascertaining the domicil, are considered in a subsequent part of this work, conjointly with the rule of law as to the distribution of the effects of deceased persons, who have died domi- ciled in a foreign country.(/i) If the executor named in the will of a non-inhabitant reside in this state, letters testamentary issue to him upon proof of the will in the Surrogate's Court, or upon the production of the decree of the Supreme Court, where the will has been proved in that court, or of the exempli- fication of the probate of the will, under the seal of a competent court of another state or of a foreign country, the same as in cases of wills proved originally before the surrogate. K the executor do not reside in this state, he must give security the same as in other cases of non- resident executors. (g) The right of the public administrator to administer was formerly expressly limited to cases of intestacy. 1 R. L. 1813, 449, sec. 17, when the chamberlain of the city officiated as public administrator ; S. L. 1815, 161 ; S. L. 1821, 181. And now the statute, (2 R. S. 118,) relative to that officer, applies in terms to cases of intestacy only. (A) Post, ch. 12. 208 0^ THE APPOINTMENT OF ADMINISTRATORS. CHAPTER IV. OF THE APPOINTMENT OF ADMINISTRATORS. 1. In cases of intestacy. I 3. Special administrators or collectora 2. With the wUl annexed and de bonis non. \ In case a party make no testamentary disposition of his personal property, he is said to die intestate.(a) The custody, management and distribution of the personal property of the intestate is by law commit- ted to an officer called the administrator, who is selected and appointed in the manner now to be shown, and in accordance with the provisions of the statutes presently to be quoted. In what Surrogate's Court the Letters of Administration shall he obtained. The statutes provide in respect to the jurisdiction of surrogates to grant administration as follows : Sec. 23. The surrogate of each county shall have sole and exclusive power, within the county for which he may be appointed, to grant let- ters of administration of the goods, chattels and credits of persons dying intestate, in the following cases : 1. Where an intestate, at or immediately previoiis to his death, waa an inhabitant of the county of such surrogate, in whatever place such death may have Jiappened; 2. Where an intestate, not being an inhabitant of this state, shall die in the county of such surrogate, leaving assets therein ; 3. Where an intestate, not being an inhabitant of this state, shall die out of the state, leaving assets in the county of such surrogate, and in no other county ; 4. Where an intestate, not being an inhabitant of this state, shall die out of the state, not leaving assets therein, but assets of such intestate shall thereafter come into the county of such surrogate.(6) Sec. 24. Whenever an intestate, not being an inhabitant of this state, shall die out of the state, leaving assets in several counties, or assets of such intestate shall after his death come into several counties, the sur- rogate of any county in which such assets shall be, shall have power to grant letters of administration on the estate of such intestate ; but the surrogate who shall first grant letters of administration on such estate, shall be deemed thereby to have acquired sole and exclusive jurisdic- tion over such estate, and shall be vested with all the powers inciden- tal thereto.(c) (o) 2 Black. Coram. 494. (5) 2 B. S. 13 ; 4th ed. 258. See, also, S. L. 1843, 236, sec. 4 ; 2 R. S. (4th ed.) 266, sec 12; Ante, p. 115, (c) The 25th section of the statute provides as follows: "The persons appointed adminis- trators, by the surrogate who shall have first granted letters of administration, in the cases specified in the last section, stall have sole and exclusive authority as such, and sliall be entitled to demand and recover from every person subsequently appointed admmistrator of the same estate, the assets of the deceased in his hands. But aH acts in good faith, of such subsequent administrator, done before notice of such previous letters, shall be valid; and all suits commenced by him, may be continued by and in the name of the first administra- tors. 2 R. S. 13 ; 4th ed. 258. TO "WHOM GBNERAIi ADMINISTRATION IS TO BE GRANTED, ETC. 209 The case of a person not an inhabitant of this state, dying in the county of the surrogate, and leaving no assets there, but leaving assets in an- other county ; and that of a person not an inhabitant dying in the county, leaving no assets, but assets coming into the county after his death, are both unprovided for in terms by these sections of the statute; though, if a non-inhabitant die out of the state under these circumstances, the grant of administration is regulated. There cannot, in the nature of things, it has been considered, (c^) be any reason why the administration of the assets of a non-inhabitant dying m the county, should not belong to the surrogate, as well as that of a non-inhabitant dying out of the state. On the contrary, the argument for the power in the former in- stance, is stronger than in the latter, and the only solution of the diffi- culty is, that the particular exigencies referred to were not contemplated. Accordingly, it was held(e) that this could not be regarded as anything more than an omission to regulate the power of the several surrogates, which does not in anywise restrict or limit their general authority to grant administration prescribed and conferred by statute. (/) And that, provided the fact be established that assets of the deceased have come into the county of the surrogate since his death, or were here at that time, the surrogate has, jurisdiction to grant the administration. The private property of the Seneca Indians, however, is not Avithin the jurisdiction of the laws of this state respecting administration. It is expressly declared by statute, that no person shall sue or maintain any action oa any bond, bill, note, promise or other contract, against any of this and other tribes of Indians within this state.(5') And if the laws have no jurisdiction over their property, the surrogates have no power to grant letters of administration upon it. In respect to the disposition of the property of a deceased Indian, the customs of the nation regu- lating the distribution of his property among his relatives prevails, and such distribution, according to such customs, passes a good title, which the courts of this state wUl not disturb. (A) To whom General Administration is to he granted, and of the persons Incompetent to become Administrators. The statutes on these subjects provide as follows : Sec. 27. Administration, in cases of intestacy, shall be granted to the relatives of the deceased, who would be entitled to succeed to his per- sonal estate, if they or any of them -will accept the same, in the follow- ing order: First, to the widow; second, to the children ; third, to the father ; fourth, to the brothers ; fifth, to the sisters ; sixth, to the grand- children ; seventh, to any other of the next of kin who would be en- titled to share in the distribution of the estate. K any of the persons so entitled be minors, administration shall be granted to their guardians ; if none of the said relatives or guardians will accept the same, then to the creditors of the deceased, and the creditor first applying, if other- (d) Kohler v. Knapp, 1 Bradf. Suit. Rep. 241, 246. (e) Ibid. (/) 2 R. S. 220 ; 4th ed. 418, sec. 1 j ante, p. 208. (g) 2 R. L. 1813, 153, sec. 2. (A) Dole, admr., &c. v. Irish, 2 Barb. Sup. Ct. Rep. 639., 14 . 210 TO "WHOM GENERAL ADMINISTRATION IS TO BE GRANTED, wise competent, shall be entitled to a preference ; if no creditor apply, - then to any other person or persons legally competent. But in the city of New York, the public administrator shall have preference after the next of kin, over creditors and all other persons ; and in the other counties of this state, the county treasurer shall have preference next after creditors, over all other persons. And in the case of a married woman dying intestate, her husband shall be entitled to administration in preference to any other person, as hereinafter provided.(^) If the deceased shall have been an illegitimate, and have left a mother, and no child, or descendant, or widow ; such mother shall be entitled to letters of administration in exclusion of all other persons, in pursuance of the above provisions of the sixth chapter of the second part of the Eevised Statutes. And if the mother of such deceased shall be dead, the relatives of the deceased on the part of the mother shall be entitled to letters of administration in the same order as if the de- ceased had been legitimate,(y ) Sec. 28, When there shall be several persons of the same degree of kindred to the intestate, entitled to administration, they shall be pre- ferred in the following order : First, males to females ; second, relatives of the whole blood to those of the half blood; third, unmarried women to such as are married ; and when there are several persons equally entitled to administration, the surrogate may, in his discretion, grant letters to one or more of such persons.(^) Sec. 29. A husband, as saoh, if otherwise competent according to law, shall be solely entitled to administration on the estate of his wife, and shall give bonds as other persons, but shall be liable, as administra' tor, for the debts of his wife, only to the extent of the assets received by him. If he shall not take out letters of administration on her estate, he shall be presumed to have assets in his hands, sufficient to satisfy her debts, and shall be liable therefor : and if he shall die,, leaving any assets of his wife unadministered, they shall pass to his executors or ad- ministrators, as part of his personal estate, but shall be liable for her debts to her creditors, in preference to the creditors of the husband.(Q Sec. 31. In all cases, where pers6ns, not inhabitants of this state, shall die, leaving assets in this state, if no application for letters of ad- ministration be made by a relative entitled thereto and legally compe- ' tent, and it shall appear that letters of administration on the same es- tate, or letters testamentary have been granted by competent authori- ty, in any other state of the United States, then the person so appointed, or producing such letters, shall be entitled to letters of administration in preference to creditors, or any other persons, except the public ad' ministrator in the city of New York.(m) Sec. 32. No letters of administration shall be granted to a person convicted of an infamous crime, nor to any one incapable by law of making a contract, nor to a person not a citizen of the United States, (i) 2 R. S. 74 ; 4tli ed. 269. U) S. L. 1845, chap. 236, p. 25t ; 2 R. S. (4th ed.) 282, see. 75, subdv. 8, For this act entire, see posi, chap. 12. (ft) 2 R. S. 74;4thed. 259. (i) Ibid. 2 R. S. 75; 4th ed. 259. (m) 2 R. S. 75 ; 4th ed. 260. TO WHOM GENERAL ADMINISTRATION IS TO BE GRANTED, ETC. 211 (unless such person reside -witliin this state,) nor to any one who is un- der twenty-one years of age, nor to any person who shall be judged in- competent by the surrogate to execute the duties of such trust by reason of drunkenness, improvidence, or want of understanding, nor to any married woman ; but where a married woman is entitled to adminis- tration, the same may be granted to her husband, in her right and be- half.(?i) Sec. 33. If any person, who would otherwise be entitled to letters of administration as next of kin, or to letters of administration with the will annexed, as residuary or specific legatee, shall be a minor, such letters shall be granted to his guardian, being in all respects competent, in preference to creditors or other persons, (o) Sec. 34. Administration may be granted to one or more compe- tent persons, although not entitled to the same, with the consent of the. person entitled to be joined with such person ; which consent shall be in writing, and be filed in the office of the surrogate.(p) In case of a contest for preference as to administration between rela- tives whose priority is not settled by the statute, the single point to be ascertained is, who will be entitled to the surplus of the personal estate — " who will be entitled to share in the distribution of the estate." The Statute of Distributions, (g') in specifying the mode in which the sur- plus shall be distributed, provides, that "in case there be no widow, no. children and no representatives of a child, then the whole sur- plus shall be distributed to the next of Icin, in equal degree to the deceased, and their legal representatives." It seems to be fully estab- hshed, that the construction of the Statute of Distribution, as to the proximity of degrees of kindred, at least, must be according to the rules of the civil law.(7-) Consanguinity, or kindred, is defined by the writers on these sub- jects to be '■^vinculum personaruTn ah eodem stipite descendentium" the connection or relation of persons descended from the same stock or common ancestor. This consanguinity is either lineal or collateral.(s) Lineal consanguinity is that which subsists between persons, of whom one is descended in a direct line from the other, as between any given person and his father, grandfather, great-grandfather, and so upwards in the direct ascending line ; or between such given person and his son, grandson, great-grandson, and so downwards in a direct descending line. Every generation in this lineal direct consanguinity, constitutes a different degree, reckoning either upwards or downwards; the father of such person is related to Mm in the first degree, and so likewise is his son ; his grandsire and grandson in the second ; his great-grandsire and great-grandson in the third. This is the only natural way of reckoning the degrees in the direct line ; and therefore, imiversally obtains, as well in the civil and canon, as in the common («) Ibid. Letters of admiiustratioii to the husband, in right of his ■wife, should be so ex- pressed in the grant. (o) 2 R. S. 75 ; 4th ed. 260. (p) Ibid. Y6 ; 4th ed. 260. (g) 2 E. S. Ot ; Post, chap. 12. (r) Williams on Bxrs. 344, and oases cited; Sweezy v. WilUs, 1 Bradf. Surr. Rep. 495. (s) 2 Black. Comm. 203 ; Wms. on Exrs. 21i. 212 TO WHOM GENERAL ADMINISTRATION IS TO BE GRANTED, ETC. law. This lineal consanguinity, it may be observed, falls strictly within . the definition of vinculum personarum ah eodem stipite descen- dentium ; since lineal relations are such as descend one from the other, and both, of course, from the same common ancestor.(<) Collateral kindred .answers to the same description : collateral rela- tions agreeing with the lineal in this, that they descend from the same stock or ancestor ; but differing in this, that they do not descend one from the other. Collateral kinsmen are such, then, as lineally spring from one and the same ancestor who is the stirps, or root, the stipes, trunk, or common stock, from whence these relations are branched out. As if John Stiles has two sons, who have each a numerous issue ; both these issues are lineally descended from John StUes as their common ancestor ; and they are collateral kinsmen to each other, because they are all descended from this common ancestor, and all have a portion of his blood in their veins, which denominates them consanguineos.(u) It must be carefully remembered, that the very being of collateral consanguinity consists in this descent from one and the same common ancestor. Thus, Titius and his brother are related ; why ? because both are derived from one father : Titius and his first cousin are re- lated ; why ? because both are descended frora the same grandfather : and his second cousin's claim to consanguinity is this ; that they are both derived from one and the same great-grandfather. In short, as many ancestors as a man has, so many common stocks he has, from which collateral kinsmen may be derived, (v) The mode of calculating the degrees in the collateral line, for the purpose of ascertaining who are the next of kin, so as to be entitled in distribution, conforms, as it has been above observed, to that of the civil law ; and is as follows : to count upwards from either of the par- ties related to the common stock, and then downwards again to the other, reckoning a degree for each person, both ascending and descend- ing ;(m;) or, in other words, to take the sum of the degrees in both lines to the common ancestor, (x) (<) 2 Black. Comm. 203 ; lb. hi) 2 Black. Comm. 204. \v) 2 Black. Comm. 205. (mi) 2 Black. Comm. 207 ; Mentney v. Petty, Free. Chan. 593 ; Toller, 88. (x) Ibid, and Mr. Christian's note to 2 Black. 207. According to the canon law, the mode of computation is. to begin at. the common ancestor, and reckon downwards, and in whatso- ever degree the two persons, or the more remote of them, is distant from the coiSnon an- cestor, that is the degree in which they are related to each other. It is obvious, that the degrees by this oalculatiou are fewer than by the mode of the civilians ; and Sir J. Jekyl, in Free. Chanc. 593, and Lord Hardwicke, in 1 Tes. sen. 335, attribute the establishment of the mode of canonists to this circumstance — inasmuch as the nearer they brought the rela- tion, the greater was their trade of dispensations of marriage. [*] (*) The distribution of personal property of intestates, in these United States, has undergone consider- able modification. In many of them, the English Statute of Distribution, as to personal property, is pretty closely followed. In a majority of the states, the descent of real and personal property is to the same per- sons, and in the same proportions, and the regulation is the same in substance, as the English Statute of Distributions, with the exception of the widow, as to the real estate, who takes one-thild for life only, as dower. The half-blood take equally with the whole blood, as they do under the English Statute of Distribu- tions. Such a uniform rule, in the descent of real and personal property, gives simplicity and symmetry «o the whole doctrine of descent. The English Statute of Distributions, being founded in justice, and on the ■wisdom of ages, and fully and profoundly illustrated by a series of judicial decisions, was well selected, as the most suitable and judicions basis on which to establish our American law of descent and distribution. ! Kent s Com. 425 ; 8d ed. Em vide Ibid, for an able Tiew of the law of descents and di3tributio»s in th« various states of the Union. TO WHOM GENERAL ADMINISTRATION IS TO BE GRANTED, ETC. 213 TABLE OF CONSANGUINITY. IV. Great grand father's father. V. Great Uncle's Son. IV. Cousin German. ni. - Nephew. ."-i V. Son of the Cousin German. . IV. Son of the Nephew or Brother's Grandson. 214 TO "WHOM GENERAL ADMINISTRATION IS TO BE GRANTED, :ET0. In the annexed table of consanguinity, the degrees are computed as far as the sixth. It may be useful to apply some examples from it to the rule of calculation above laid down. The propositus and his cousin- german will be found designated ia the table as related in the fourth degree — ^because, following the rule of computation, from the propositus, ascending to his father, in one degree ; from him to the oommon ances- tor, the grandfather, two ; then, descending from the grandfather to the uncle, three; and from the uncle to -the cousin-german, four. Again, the second cousin of the propositus will be found described in the table, as related in the sixth degree ; because, from the propositus^ ascending to his father, is one degree ; from his father to his grand- father, two ; from his father to his great-grandfather, the common an- cestor, three : then, descending, from the great-grandfather to the great- uncle of the propositus, four ; from the great-uncle, to the great-uncle's son, five ; from his great-uncle's son to his second cousin, six. It will be observed, that kindred are found distant from the propositus by an equal number of degrees, although they are relations to him of very different denominations. Thus, a granddaughter of the sister, and a daughter of the intestate's aunt, {i. e., a great-niece and a first cousin,) are in equal degree, being each four degrees removed.(2/) In the further consideration of the statute, and of this mode of com- puting proximity of kindred, and the rights to administration derived from it, several remarkable distinctions may be observed, with refer- ence to the corresponding rules of the common law, respecting succes- sion to inheritances. 1st. Eelations by the father's side and, the mother's side, are in equal degree of kindred ; and, therefore, equally entitled to administration : for, in this respect, digjnity of blood gives no preferencej(2!) Hence, it may happen that relations are distant from the intestate by an equal number of degrees, and equally entitled to the administration of hie effects, who are no relations at all to each other. 2d. The half-blood is admitted to administration as well as the whole, for they are kindred of the intestate ; but, as between the two, by the statute, it has been observed, the whole blood is to be preferred. How- ever, the brother of the half-blood shall exclude the uncle of the whole blood, (a) 8d. The right to administration, as prescribed by the statute, will follow the proximity of kindred, though ascendant; and therefore, when a child dies intestate, without wife or child, leaving a father, the father is entitled to the administration of the personal effects of the in- testate, as next of kin, exclusive of all others. (6) So, with respect to the mother, if a child dies intestate without a wife, child or father, it is (y) Thcmas v. Kettriche, 1 Ves. sen. 333 ; TJiirt v. RoUnson, cited Ambl. 192. So a first cousin twice removed is in tlie same degree as a second cousin, for they are both in the sixth degree of conaanguihitj. Silcox v. Bell, 1 Sim. & Stu. 301 ; Lock v. Lake, 2 Oaa. Temp. Lee, •421. See Wma. on Exrs. 344 to 34'7. (a) Moor v. Ban'kam, cited in Blackborough v. Davis, 1 P. Wms. 53. (a) ColUngwood v. Pace, 1 Ventr. 424. (6) See Ratcliff's case, 3 Co. 40 a: OoVmawood v. Pace, 1 Ventr. 414; Blackboromh v. Davis, 1 P. "Wms. 61. TO WHOM GENERAL ADMINISTRATION IS TO BE GRANTED, ETC. 215 laid down that the mother is entitled to administration :(c) and before the Statute of 1 Jac. II, ch. 17, she could claim, as next of kin, the whole personal estate ; and although now, by the Statute of Distribu- tion,(rf) every brother and sister has an equal share with her, yet, be- ing nearer of kin to the intestate by one degree, she is, without doubt, entitled to the preference in administration. Again, if a man dies iu' testate, leaving -no nearer relations than a grandfather or grandmother, and an uncle or aunt, the grandfather or grandmother,- being in the second degree, though ascendant, will be entitled to administration to the exclusion of the uncle or aunt, Avho are related only in the third degree.(e) So a great-grandmother is equally entitled as an aunt.(/) However, though the law of this state acknowledges the rights of ascendants generally, yet it does not recognize them to the extent of the civil law, according to which, ascendants, of whatever degree, shall be preferred before all collaterals, except in the case of brothers and sisters. But the law here prefers the next of kin, though collateral, before one who, though lineal, is more remote.((7) It remains to notice certain exceptions to the rule of computation, above stated, of the proximity of kindred and consequent right to administration. 1st. The parents of an intestate are as near akin to him as his chil' dren ; for they are both in the first degree : but the statute following and declaring the previous law, expressly gives children the prefer- ence. And, although the statute subsequently, in terms, gives the father, brothers and sisters the preference over grandchildren, yet, as it has previously provided that administration " shall be granted to the relatives of the deceased, who would be entitled to succeed to his per- sqpal estate,"(A) and as the father, brothers and sisters are utterly ex- cluded from any share in distribution where there are children, or the representatives or descendants of children, (i) grandchildren, notwith- standing the order of preference, so in terms prescribed, are entitled to the administration next after children. The revisers, in their note to the legislature accompanying their recommendation of this provision, cite the previous law, and say, "much simplified, according to the prac- tice and the law, as now understood, and many occasions for contest respecting preferences removed."(y ) By the law, as then understood, children and their lineal descendants, to the remotest degree, were entitled to the administration in preference to the father, brother, sister, (c) Batcl^'s case, 3 Co. 40 a, where the weU known ease of the Duchess of Suffolk, Bro. Admor. pi il, contra, was denied: S, P. ColUngwood v. Pace, 1 Ventris, 424, by Hale, C. B, See Wma. on Exrs. 349. (d) 2 R. S. 91 ; Post, ch 12. (e) Meniney v. Petty, Free. Ohanc. 593 ; BlacM)or 105. (cc) 2 R. S. 12; 4th ed. 208. (y) Ex parte Brown^ 2 Bradf.. Surr.. Rep. 22. GRANTING LETTERS OF COLLECTION. 231 special letters of administration, authorizing the preservation and col- lection of the goods of the deceased.(2!) Letters of collection are seldom issued, except where there is a necessary delay in proving a will. The surrogate has unrestricted discretion, both as to issuing the letters and to whom the same shall be granted. If there be a will, they are usually granted to one or more of the executors named therein. The petition should set forth the cause of the delay in proving the will, and the facts which render it necessary that special letters should be issued. If from due cause a delay is necessarily produced in granting letters of administration, the surrogate will, on a proper application setting forth such cause and the necessity for special administration, appoint a collector. In the county of New York, in such cases, the public administrator has commonly been selected. Before the letters are granted, the collector takes an oath or affirma- tion before the surrogate, or in case of sickness or other inability to attend the surrogate, before any officer authorized to administer oaths, that "he will well, honestly and faithfully discharge the duty of col- lector, according to law.(a) The clerk of the surrogate of the county of Kings, and the assistants appointed by the surrogate of the county of New York, also have authority to administer this oath.(5) The oath is filed with the surrogate. The collector must give security the same as an administrator. The statute provides as follows : Sec. 43. Every collector appointed by special letters, shall execute a bond with sureties, to be approved by the surrogate, in the same penalty as in the case of an administrator, and the same proceedings shall be had to ascertain such penalty. The c(mdition of such bond shall be, that he will make a true and perfect inventory of such of the ' assets of the deceased as shall come to his possession or knowledge, and return the same, within three months, to the office of the surro^ gate granting such letters ; that he will faithfully and truly account for all property, money, and things in action, received by him as such collector, whenever required by the said surrogate, or any other court of competent authority, and will faithfully deliver up the same to the person or persons who shall be appointed executors or administrators of the deceased, or to such other person as shall be authorized to receive the same by the surrogate, (c) An order for issuing the letters, reciting that' the necessity for issuing them has been proved, should be entered. (For forms of petition, order and collector's bond, see Appendix, No. 39.) The letters issue in the name of the people of this state, and are tested, sealed, signed and recorded the same as letters testamentary or of administration. (For form, see Appendix, No. 40.) Special administrations issued in pursuance of the above quoted sections of the statutes, are the only limited or temporary administra- tions distinctly recognized by the existing law. Administrators durante (2) S. L. 1837, 528, sec. 23; 2 R. S. (4tli ed.) 261. (a) 2 R. S. 77 ; 4th ed. 261, sec. 41. See ante, p. 227. (i) S. L. 1849, 235 ; 2 R. S. (4th ed.) 700 ; S. L. 1850, 384. (c) 2 R. S. 77 ; 4th ed. 262. 232 CONTROL OYER THE ESTATE BEFORE PROBATE, ETC. minore cetate, pendente lite, or durante absentia, can be appointed under these provisions only. , If the person otherwise entitled to letters of administration, or to letters of administration with the will annexed, be a minor, his guardian, as has appeared, is entitled to the letters, and there is no provision limiting the trust of such an administrator to the minority of the person in whose right he has been appointed. K, therefore, the person entitled come of age before the completion of the administration, it may be doubted whether that fact alone would be a sufficient reason for removing the party from his trust. In Carow v. Mowatt,{d) the court say, " Whenever the right to administration de- volves upon an infant, the proper course ig, to grant administration to his guardian, or to some other person, durante minore cetater But this case seems to have arisen before the Revised Statutes. Administration limited to any particular object, as in respect to a bond or certain funds, or for any particular purpose, as to bring or defend a suit, are nowhere expressly authorized. An administrator once appointed, is entitled to the entire administration, and is account- able for the same. If the executor named be under age or be absent, letters of collection must be taken out, and not letters of administra- tion with the will annexed ; and in a case where the person solely entitled to the administration is a minor, letters of collection, which might be continued durante minore estate, instead of proper letters of administration, may, it is presumed, be granted. CHAPTER V. OP THE CONTROL OVER THE BgTATB BEFORE PROBATE, OR ADMINISTRA- TION GRANTED. The interest of an executor in the estate of the deceased is derived exclusively from the' will, and it vests in the executor from the moment of the testator's death. The probate is merely operative as the authen- ticated evidence, and not at all as the foundation of the executor's title., And as the executor derives all his interest from the will itself, and that interest is completely vested at the moment of the testator's death, the probate, when produced, is said to have relation to the time of the testator's death.(a) And formerly, upon these principles, it was held, that the executor,' before he proved the will, might do almost all the acts which are inci- dent to the office, except only some of those which relate to suits, and he might maintain a suit in his representative character if, when he declared, he was prepared to make profert of the letters testament- ary.(6) id) 2 Edw. Ch. Rep. 57, 60. (a) Wms. on Exrs. 239, and cases cited. (6) lb. 240; Toller on Exra 44; Vroom v. Van Home, 10 Paige, 549. CONTROL OVER THE ESTATE BEFORE PROBATE, ETC. 233 But no-ff, hj statute, the authority of the executor before probate is expressly limited. The EeAdsed Statutes provide as follows : Sec. 16. No executor named iu a will shall, before letters testament- ary are granted, have any power to dispose of any part of the estate of the testator, except to pay funeral charges, nor to interfere with such estate in any manner, further than is necessary for its preserva- tion.(c) Under this provision the executor may, if necessary, before probate, defray the funeral expenses of the deceased, (c?) and cause his goods to be stored, or take any other proper measures for their safety ; and his reasonable disbursements made for these purposes will be a just claim against the estate. But the right to interfere for the purpose of preserving the estate, does not authorize suits to recover debts due to the testator. The statute provides for the case of delay in obtaining letters testamentary, and allows the appointment of a collector, who may raaintain suits as ' administrator.(e) If the goods of the testator are taken from the execu- tor before probate of the will, he may maintain trespass, trover or re- plevin, on his own possession ; and, in such a case, he is not obliged to make profert of the letters testamentary. (ee) The will alone does, not give the executors the right to sue — ^they can only acquire it by proving the will. If they are not executors at the time the suit is commenced, letters subsequently obtained will not aid them by rela- tion. The statute has introduced a new rule by taking away the com- mon law right to sue before probate.(/) Nor may the executor pay a legacj'', or make advances on account of a legacy, before probate ; and if he do, and afterwards take probate, and the probate be annulled, such payments or advancements will not be allowed on the settlement of his accounts.(^) A payment of a debt due the testator to a person named as execu- tor, who afterwards takes probate, is doubtless good. The probate would be held to relate back, and the executor under its authority would not be permitted to recover what he had once collected without such authority. But if a party indebted to the testator pay to 'one of two or more persons named as executors, and such person afterwards refuses to qualify, or is declared incompeteiit, the debtor would proba- bly still remain liable for the debt to the executor or executors who might qualify. There would be great risk that a payment under such circumstances would not be protected. With respect to an administrator, the rule is, that a party entitled to administration can do nothing, as administrator, before letters of administration are granted to him ; inasrauch as he derives his author- ity, not like an executor, from the will, but entirely from the appoint- ment of the surrogate. He acquires his title to the property of the de- ceased wholly from such appointment : he has none until the letters of (c) 2 R. S. 11 ; 4th ed. 251. (d) With respect to the payment of ftineral charges, see post, ch. 10. (e) See ante, p. 231. ' (ee) See Vakntine v. Jackson, 9 "Wen. 302. (/) Thomas v. Cameron, 16 "Wen. 580, 581. (/) In the Matter of the estate of Dorothea Brinclcerhoff, deceased, lawof Surr. Appendix, 3. 234 CONTEOL OVER THE ESTATE BEFORE PROBATE, ETC. administration are granted, and the property c5f tlie deceased vests in him only from the time of the grant.Q') But this proposition respecting the vesting of the administrator's in- terest, must be taken Avith some qualification, for it seems clear, that for particular purposes, as well to secure the estate of the deceased, as for the protection of persons dealing with parties entitled to the adminis- tration, who afterwards assume such administration, the letters relate back to the time of the death of the intestate, and not to the time of granting them. , Thus, an administrator may have an action of tres-- pass or trover for the goods of the intestate, taken by one, before the letters granted unto him, otherwise there would be no remedy for this wrong done.(A) On the other hand, if a party entitled to the adminis- tration receive payment of a debt due to the intestate, and afterwards administer, although in conjunction with another person, the letters of administration relate back, and legalize the payment ;(t) and in such a case the administrator and his sureties would be held responsible for all the property of the intestate which might come into his hands, whether he received the same before or after the grant of the administration. The provision of the statute authorizing the surrogate to issue letters of collection, furnishes every facility for all proper interference with the estate of the deceased, before the granting of letters testamentary or of administration ; and persons who were indebted to the deceased, cannot exercise too much caution before dealing with a party claiming to be his personal representative, in satisfying themselves of his author- ity. Although the party have the strongest presumptive title to the executorship or the administration, a debtor to the deceased is not justified in paying his debt to him. Unless such party afterwards obtain probate, or administration, the debtor will not be discharged, and the executor or administrator actually appointed may compel a re- payment. The rule may sometimes work an apparent hardship, but its justice is unquestionable and well settled. If, however, the decedent was a non-resident, the courts of this state, appear to have considered the probate of the will, or the grant of letters testarhentary, or of administration, in the proper tribunal of the dece- dent's domicil, as sufficient to authorize the executor or administrator to take charge of the property here, or to receive debts due to the dece- dent in this state, when there is no conflicting grant here, and where it can be done without suit.(j) Although such foreign personal represen- tative cannot, in his representative character, maintain an action in the courts of this state, yet he may discharge a debt on a voluntary pay- ment. An executor or administrator of a creditor dying in another state, and becoming lawfully possessed, as a part of his assets, of a bond, given and secured by a mortgage upon lands in this state, is competent, according to a pretty decided opinion expressed by Chancellor Kent, to receive payment, and give an acquittance for the debt, without first (g) See "Wma. on Exra. 332, 527 ; Vakntine v. Jackson, 9 Wend. 302. (A) ,Ib. 433 ; Babcock v. Booth, 2 Hill, 181 ; Vakntine v. Jackson, 9 "Wend. 302. (s) Priest v. WatMns, 2 HUl, 225 ; Vroom v. Van Some, 10 Paige, 549. And see GoUs- herger v. Smith, 2 Bradf. Surr. Rep. 86, (j) Vroom V. Vam Home, 10 Paige, 549, 556-';, and oases cited. See, also, Brovrnv. Brown, 1 Barb. Ch. Rep. 189. b , , , , , INTEREST OF EXECUTOR IN THE ESTATE OF DECEASED, ETC. 235 clothing himself with the office of an executor or administrator, under the judicial authority of this state.(2;') But the adoption of such a prin- ciple is not without its difficulties, particularly in view of the claims of creditors in this state. The Eevised Statutes make the following provisions with respect to the recovery of the property of deceased persons, taken without authority : Sec. 78. [Sec. 60.] Every person who shall take into his possession any of the assets of any testator or intestate, without being thereto duly authorized as executor, administrator or collector, or without au- thority from the e^jecutor, administrator or collector, shall be liable to account for the full value of such assets to every person entitled thereto, and shall not be allowed to retain or deduct from such assets for any debt due to him.(^) Sec. 17. No person shall be liable to an action as executor of his own wrong, for having received, taken, or interfered with, the prop- erty or effects of a deceased person ; but shall be responsible as a wrong-doer, in the proper action to the executors, or general or special administrators of such deceased person, for the value of any property or effects so taken or received, and for all damages caused by his acts to the estate of the deceased.(Z) CHAPTER VI. OF THE INTEREST OP THE EXECUTOR OR ADMINISTRATOR IN THE ESTATE OF THE DECEASED, INCLUDING THE SUBJECT OF THE INTEREST AND RIGHTS OF THE DONEE MORTIS CAUSA. The interest which an executor or administrator has in the goods of the deceased, is very different from the absolute, proper and ordinary interest which every one has in his own proper goods : for an axecu- tor or administrator has estate as such in autre droit merely, viz., as the minister or dispenser of the goods of the dead. (a) Upon, this principle, in England, if the executor or administrator becomes bankrupt, with any property in his possession belonging to the testator or intestate, distinguishable from the general mass of his own property, it is not distributable under the commission of bank- ruptcy. The commissioners cannot seize even money which specific- ally can be distinguished and ascertained to belong to the deceased, and not to the bankrupt himself (J) The same rule, doubtless, applies (jj) Dooliiile v. Lewis, 1 John. Ch. Rep. 49. See, also, Williams v. Storrs, 6 John. Ch. Rep. 353 ; Vroom v. Vcm Home, 10 Paige, 549 ; Lawrence v. Lawrence, 3 Barb. Ch. Sep. 71 ; Ste- vens V. Gaylord, 11 Maijs. Rep. 256. (k) 2 R. S. 81 ; 4th ed. 267 a) lb. 449; 4th ed. 691.' [a] Wms. on Exrs. 532. (6) Wms. on Exrs. 533. 236 INTEREST OF EXECUTOR IN" THE ESTATE OF DECEASED, ETC. to assignments made under bankrupt or insolvent laws in force in this state. Again, the goods of a testator in the hands of his executor, cannot' be seized in execution of a judgment against the executor in his own right. So, if an executor dies indebted, leaving to his executor goods which he had as executor, these are not assets liable to the payment of his debts, but only for the payment of the first testator's. And, since no man can bequeath anything but what he has to his own use, an executor cannot, by his will, dispose of anjr of the goods which he had as executor to a legatee, and an administrator cannot transmit any interest in .the property of the intestate to his own personal repre- sentative.(c) But, generally speaking, an executor or administrator, in his own lifetime, may dispose of and. alien the assets of the testator; he has absolute power over them for that purpose, and they cannot be fol- lowed by the creditors of the deceased.(c?) This rule, however, is subject to some qualifications, which will be hereafter, in part at least, considered in the course of the remarks in this work relative to the power of executors and administrators. With reference to the possession in auter droit, it has been held, that if an executor or administrator grant omnia bona sua, the goods of the deceased will not pass unless the grantor have no goods but as' executor or administrator. So, if an executor releases all actions, suits and demands whatsoever, which he had for any cause whatever, this extends only to such as he has in his own right, and not to such as he hath as executor, (e) After the administration is granted, the interest of the administrator in the property of the deceased, is equal to, and with, the 'interest of an executor. Executors and administrators differ in little else than in the' manner of their constitution.(/) The general rule is, that all goods and chattels, real and personal, go to the executor or administrator. " By the laws of this realm," says Swinburne, " as the heir hath not to deal with the goods and chattels of the deceased, no more hath the executor to do with the lands, tene- ments and hereditaments." In other words, it may be stated, that, both at law and equity, the whole personal estate of the deceased vests imthe executor or administrator. (g') Executors and administrators, by statute, in this state, may obtain authority, and may be compelled to mortgage, lease or sell the re'al estate of their testator or intestate, for the payment of his debts ; but this is an innovation on the old law, and is not to be considered as altering or extending the established functions of the executor or administrator, except as expressly pre- scribed by the statute ; and, of this, more fully hereafter.(/i) The personal property in which the deceased had but a joint estate or possession, will survive to his companion, and his executor or ad- (c) Wins, on Exrs. 535, 539. (d) lb. 540. (e) lb. 540. (/) lb. 546. Q) lb. 546. (A) See post, oh. 13. INTEREST OP EXECUTOR IN THE ESTATE OP DECEASED, ETC. 237 ministrator will not be entitled to a moiety of it, for a survivorship holds place regularly, as well between joint tenants of goods and chat- tels in possession, or in right, as between joint tenants of inheritance or freehold. But the wares, merchandise, debts or duties, which joint merchants have, as joint merchants or partners, shall not survive, but shall go to the executors of the deceased ; and this is •per legem merca- toriam, which is part of the laws of this state, for the advancement or continuance of commerce and trade, Avhich is pro bono publico ; for the rule is, that jus accrescendi inter mercaiories pro beneficio commercii locum non habet. And this part of the lex mercatoria has been extended to all traders, and, as» it should seem, to all persons engaged in joint undertakings in the nature of trade.(i) The property generally which shall be deemed assets, and go to the executor or administrator, in this state, is particularly specified and described by statute. In view of the design and purposes of this work, the subject has reference, in the first instance, to the making and filing of the inventory, and the duty of the executor or adminis- trator in respect to the same, and it is accordingly postponed until the inventory comes to be treated of And there are various particu- lars relative to the estate of the executor or administrator, its quality and quantity, which would fall within the scope of a professedly more extended treatise on the law of executors and administrators, but which cannot be discussed in these pages, except incidentally to the statutory regulations governing those officers. If there be several executors or administrators, they are regarded in the light of an individual person. They have a joint and entire in- terest in the effects of. the testator or intestate, including chattels real, which is incapable of being divided ; and in case of death, such interest shall vest in the survivor, without any new grant by the court.(y) Consequently, if 6ne of two executors or administrators grant or release his interest in the testator's or intestate's estate to the other, nothing shall pass ; because each was possessed of the whole before. So, 5 one of several executors • release but his part of his debt, it has been held, that the whole is discharged.(/(;) If a man appoint several executors, they are esteemed in law but as one person representing the testator ; and acts done by any one of them, which relate to the delivery, gift, sale or release of the testator's goods, are deemed the acts of all. Thus, a term of years passes by the assignment of one ; and if one release a debt, it is good, and binds the rest. And thus, it was held, that one of two executors might pledge or assign a note as collateral security, for the purpose of being collected and applied to the satisfaction of a judgment obtained against the estate of the testator.(Z) And even securities taken by executors, as such, may be sold or disposed of by one of them, without the others uniting in the act of transfer. Thus, where there was a power of sale to two (j) See Wms. on Exrs. 547; JSgberts v. Wood^ 3 Paige, 517, 525 j Wilder v. Keeler 5 Paige, 166, 172. (j) See 2 R. S. 78, sec. 44. (k) "Wms. 777, and eases cited. (!) Wheeler v. Wheeler. 9 Cowen, 34. See, also, Sounders'' heirs v. "Saunders' executors, 2 Litt. 315. 238 INTEREST OF EXECUTOR IN THE ESTATE OP DECEASED, ETC. executors, " for the more equal and easj division of the estate of the testator," and the executors sold certain real estate of the testator, and took back a bond and mortgage, for a part of the purchase money, by their names and descriptions as executors of the last wUl and testament of the testator ; and subsequently one of the executors, without the assent or knowledge of his co-executor, sold and assigned the bond and mortgage, and there was no proof of fraud or collusion between the assignee and the executor — ^it was held, overruling, a judgment of the Chancellor, that the assignee acquired a valid title to the bond and mortgage.(K) A release of a debt by two administrators, without the concurrence of a third administrator, is good, and the dissent of the third forms no objection to its validity. Executors and administrators stand on the same ground ; their liabilities and resijonsibilities, and their rights, interests and authority, over the estate of the deceased, are the same.(m) A release of a debt, on a compromise Avith the debtor, executed by the administrators, though contrary to the wishes of one-third of those entitled to distribution, will not be set aside where there is no fraud or collusion shown between the debtor and the administra- tors.(mm) Since several executors have a joint and entire interest in all the goods of their testator, including chattels real, it follows, that the act of one, in possessing himself of the effects, is the act of the others, so as to entitle them to a joint interest in possession, and a joint right of action, if they are afterwards taken away.(n) Again, since several executors or administrators have a joint and entire interest in the estate in action of the deceased, it follows that they cannot maintain an action in. right of the deceased, upon a con- tract made by the defendant jointly with one of themselves. There- fore, to an action of assumpsit by several executors, it was held a good plea in bar, that the promises were made by the defendant jointly with one of the plaintiffs ; and Mr. Justice Buller said, " the promise was made jointly with one of the plaintiffs : how can he sue himself in a court of law? it is impossible to say a man can sue himself"(o) An administrator de bonis non is entitled to all the goods and per- sonal estate, such as terms for years, household goods, &c., which re- main in specie, and were not administered by the first executor or administrator. Also, it is holden, that if an executor receives money in right of his testator, and lays it up by itself,- and dies intestate, this money shall go to the administrator de bonis non, being as easily dis- tinguished to be part of the testator's effects, as goods in specie.(^) If the original executor or administrator has fraudulently aliened aV) Bogari v. Seriell, 4 Hil], 492 ; S. C, 9 Paige, 52. (m) Murray v. Blalchford, 1 Wen. 583. imm) Murray v. Blatchford, 1 Wen. 583. (n) WmB.'l18.- (o) Wms. 119; Moffat y. Van MiUingen, 2 Bos. & Pull. 124, note (o); S C, 2 Chitt. 539; Fitzgerald v. Boehm, 6 B. Moore, 332. See, also, Ease v. Foulton, 2 B. & Add. 822. (p) "Wms. '781. DONATIO MORTIS CAUSA. 239 the assets for his own use, in collusion with the vendee, such assets will be considered, at all events in equity, as unadministered, and will- consequently pass as such to the administrator de bonis non ; who in that character may apply to a court of equity to have the sale set aside, and to have the legal estate conveyed to him.{q) And there are other particulars concerning the estates and interests of executors, administrators and administrators de bonis non, which will be treated of hereafter, in connection with the other subjects more directly within the scope and limits of this work, but which cannot, consistently with its general design, be separately considered. It is deemed proper in this place to direct attention to the species of interest in the property of the deceased, which is created by a dona- tion mortis causa. " A donatio mortis causa is thus defined in the civil law, from which both the doctrine and the denomination are borrowed : ' Mortis causa donatio est, quce propter mortis fit suspicionem ; cum quis ita donat ut si quid humanitus ei contigisset, haberet is, qui accepit ; sin autem super- vixisset is qui donavit, receperet ; vel si eum donationis pcenituisset ; aut prior decesserit is, cui donatum sit.\r) " From this definition it results, that to constitute a donatio mortis causa, there must^ be two attributes : 1. The gift must be with a view to the donor's death. 2. It must be conditioned to take effect only on the death of the donor, by his existing disorder. A third essential quality is required by our law, which, according to some authorities, was not necessary according to the Roman and civil law, viz. : 3. There must be a delivery of the subject of the donation. (s) " 1. The gift must be made with a view to the donor's death. If a gift be not made by the donor in peril of death, i. e., with relation to his decease, by illness affecting him at the time of the gift, it cannot be supported as a donation mortis causa. Where it appears that the donation was made whilst the donor was ill, and only a few days or weeks before his death, it will be presumed that the gift was made in contemplation of death, and in the donor's last illness.(<) " 2. The gift must be conditioned to take effect only on the death of the donor by his existing disorder. But, although it is an essential incident to a donation mortis causa, that it be subject to a condition, that if the donor live the thing shall be restored to him, yet it is not necessary that the donor should expressly declare that the gift is to be accompanied by such a condition ; for if a gift be made during the donor's last illness, the law infers the condition, that the donee is to hold the donation only in case the donor die of that indisposi- tion.(M) " 3. There must be a delivery of the subject of the donation. The general rule upon this head is, that to substantiate the gift, there must (g) ■Wms. 183. (V) Wms. 650; Inst. lib. 10, tit. 1 ; Tate v. Silbert, 2 Tea. jun. 119; Sedges t. Sedges Preo. Chan. 269. - ' (s) Wms 650. (t) lb. 651. (u) lb. (- 240 ■ DONATIO MOETIS CAUSA. be an actual tradition, or delivery of the thing to the donee himself, or ■to some one else, for the donee's use. The possession of it must be transferred in point of fact. The purse, the rigg, the jewel, or the watch, must be given into the hands of the donee, either by the donor himself, or by his order. Thus, in Bunn v. Marhham^iv) Sir Gr. Clifton ' had written upon the parcels, containing the property in question, the names of the parties for whom they were intended, and had requested his natural son to see the property delivered to the donees. It was, therefore, manifestly his intention that it should pass to them ; yet, as there was no actual delivery, the Court of Common Pleas held that it was not a valid gift. " So, where the testator, in his last illness, executed and delivered to his sister, a deed of a farm, on which she and her husband resided, and at the same time said, as one witness testified, ' he had some farming tools and other personal property on the premises that was of no use to him, and never would be, and he would give it to her,' and named over some of the property ; or, as another witness testified, ' there is some property on these premises that may be of some service to you, but never will be to me, as I know of: I will give it to you.' And this took place at the residence of the testator, fourteen or fifteen miles from the farm conveyed by the deed and the property in question — most of the latter being on the farm where a portion pf it had been for some years, it was held that the testator's sister did not acquire any title to the personal property on the farm, and that, ill an action by the executors of the testator to recover possession of such personal prop- erty, they were entitled to recover. (I'l') " A further requisite to give effect to the donation is, that the de- ceased^ should, at the time of the delivery, not only part with the pos- session, but also with the dominion over the subject of the gtft.(iy) " But it is no objection that the gift was not made to the donee free from incumbrance, but charged with the performance of a particular purpose. Accordingly, it was held, in a late case,(a;) that a gift may be good as a donatio mortis causa, although it be coupled with a trust that the donee shall provide for the funeral of the donor. " Again, though a delivery to a third party for the donee's use may be good, yet a niere delivery to an agent, in the character of an agent for the giver, is not sufificient.(y) "But there are cases where the nature of the thing will not admit of a corporeal delivery ; and then, it should seem, that a delivery of the means of coming at the possession, or njaking use of the thing given, will be sufficient. Thus, the delivery of the key of a trunk has' been decided to amount to the delivery of a trunk and its contents. ■So, the delivery of a key of a warehouse, or other place, in which goods of bulk were deposited, has been determined to be a valid de- livery of the goods, for the purpose of a donatio mortis causa. -But in these cases, it is to be observed, that the key is not to be considered in \i) 1 Taunt. 231 ; S. 0., 2 Marsh. 532. (to) Huntington v. Gilmore, 16 Barb. Sup. Ot Rep. 243. (w) 'Wms. 654. (a) nma V. Hills, 8 M. & W. 401. (y) Wms. on Exrs. 655. DONATIO MORTIS CATISA. 241 the light of a symbol in the name of the thing itself; but the delivery of it has been allowed as the delivery of the possession, because it is the ivay of coming at the possession, or to make use of. the thing.(g!) " So, a bond may be a subject of a donatio mortis causa, because the 4property is considered to pass by the delivery. The same has been decided with respect to bank notes, because the property is transferred by the delivery. And, on the same principle, it should seem, that all negotiable instruments which require nothing more than delivery to pass to the donee the money secured by them, may be the subjects of donations mortis causa. For, since it has been so adjudged of bank notes, there appears no reason why" exchequer notes, or promissory notes, payable to the bearer, or bills of exchange, or exchequer bUls indorsed in blank, should not have the same capability : for in all those cases the property passes to the.donee by delivery.(a) " So, where .the testator, in his last illness, expressed a wish to give a check for £1,000 to his wife, lest she might*be in want of money be- fore his executors could wind up his affairs, and a check for that amount was accordingly drawn and signed by the testator payable to his wife or bearer, and the testator handed the check to his wife, say- ing, " I give you this for your sole use." And she afterwards, by the desire of the testator, exchanged this check for the check, for the same amount, of another person, who actually drew the money on the testator's check in the testator's lifetime ; but the wife did not receive the money on the check taken in exchange until after the testator's death. It was held, that the gift to the wife was complete, and that the £1,000 did not form a part of the testator's estate.(Z)) " It has been a matter of considerable discussion, whether a mort- gage can be the subject of a donatio mortis causa by delivery of the mortgage deeds : but the question may now be regarded as settled in the affirmative.(c) " But where no property is transferred to the donee by delivery of the subject, there can be no valid donatio mortis causa. Thus, in Ward V. Turner,{d) Lord Hardwicke held that the delivery of receipts for South Sea annuities, was not such a delivery of annuities themselves as to support the gift of 'them as a donatio mortis causa : but he in- timated that an actual transfer of the stock would have been sufficient to effectuate the intended donation. On the same ground, bills of ex- change and promissory notes, not payable to the bearer, are incapable of being the subjects of a donatio mortis causa. A promissory note made by a man in his last illness, cannot operate as a donatio mortis causa to the payee : for it has not that reference to the death of the donor; which is essential to such a gift. The same has been decided as to a. check on a banker ; which is an order for the payment of money, that may take effect immediately, and in the lifetime of the donor ; so that it is altogether inconsistent with the nature of a donation mortis causa."' (a) "Wms. 655. (a) lb. 655-6. See Oouicmt v. Schuyler, 1 Paige, 316. (6) Brets v. Ellis, 22 Law J. Rep. (N. S.) Chan. 716; It Jur. 405, 58'7 ; 21 Eng. L. & Eq. Rep. 337. (c) "Wms. 656. (d) 2 Ves. sen. 431. 16 242' DONATIO MORTIS •CAUSA. ' But in respect to a promissory note, the Supreme Court of this State held, in Wright v. Wrig'ht,{e) that a promissory note, executed by a testator in his last sickness, and delivered to the payee, without con- sideration, but in expectation of dissolution, and intended as a gift, is valid as a donatio causa mortis ; and that an action would lie thereon, at the suit of the payee, against the executors of the maker. ' This case has since, however, been expressly overruled ; and it is now the law of this state, that, the executory promise of the donor, whether his promissory note or his own draft upon a third party, not accepted in favor of the donee, intended as a donatio mortis causa, is not valid, and the donor cannot maintain an action upon it against the donor's representatives. And it , seems to be further settled, that, although any instrument, executed by the donor to the donee, opera- ting as an assignment or transfeo: of the donor's funds, or of a special fund of the donor in the hands of a third person, constitutes a sufficient delivery to uphold a gift mortis causa ; yet, a draft of the donor, not accepted, for a specific sum, upon a third party, who has in his posses- sion funds of the donor generally, does not operate as an assignment or appropriation to the donee of the sum mentioned in the draft, and therefore is not valid as a gift mortis cwusa.{ee) Claims founded upon gifts mortis causa are, however, to be admitted with great caution ; and where some doubt was thrown upon a tran- saction of this description, in a case in Chancery, a feigned issue was awarded.(g') The pohcy of the law is against the encouragement of gifts of this nature. " They are," says Mr. Justice Euggles, in Harris V. OlarJc,{h) " essentially testamentary ; they are to take effect only in case of" the testator's death, and they are revocable in his life. The same considerations of prudence and caution which induced the legis- lature to require wills of personal estate to be executed, published and attested with great formality, would. seem to forbid these informal dis- positions of property in expectation of death. The temptation to fraud and imposition, in regard to these gifts, is as powerful and as' dangerous as in the case of wills, and yet has been left unchecked and unregulated by statute. And they ought not to be tolerated by the ' courts, unless they are attended by all the requisites which the com- mon law prescribes, to give them validity."(i) A donatio mortis causa differs from a legacy in these respects : — 1. It need not be proved in' the Surrogate's Court ; for such a gift takes effect from delivery. ' So the donee claims the subject of it- as a gift from the donor in'his lifetime, and not under a testamentary act. 2. For the reason just given, no assent, or other act oh the part of the execu- tor or administrator, is necessary to perfect the title of the donee, (m) "A donatio, mortis causa differs from a gift, inter vivos, in these re- (e) 1 Co-wen, 698. (ee) Harris v. Olark, 3 Comstook, 93. See, also, Harris v. Gla/i% 2 Barb. Sup. Ct. Eep. 94; ' Graig v. Craig, 3 Barb. Ch. Kep. 106 ; Wilson v. Baptist Education Society, 10 Barb. Sup. Ot Eep. 315, per Brown, J. ; Hwntington v. GUmore, 16 Barb. S. C. E. 243. (a) Goutant v. SchwyUr, 1 Paige, 316. \h) 3 Comstook, 121. (i) See, also, Kenney v. The PvhUc Administrator, 2 Bradf. Surr. Eep. 319. (ii) See Wms. on Bxrs. 659. SBTURNING INVENTORIES, ETC. 243 spects, in wHcli it resemtles a legacy :— 1. It is ambulatory, incom- plete, and revocable during tbe testator's life. The revocation may either be effected by the recovery of the donor from his disorder, or by resumption of the possession of the subject But he cannot revoke the donation by a subsequent -will ; fpr, on the death of the donor, the iitle of the donee becomes, by relation, complete and absolute from the time of delivery-. It may, however, be satisfied by a legacy given to the donee. 2. It may be made to the wife of the donor. 3. It is liable to the debts of the testator upon deficiency of assets.(/(;) " Before leaving this subject, it may be proper to observe, that, since it is a rule that no one can give evidence for himself, in general a gift mortis caiisa, must be established, in equity as well as at law, by other evidence than that of the donee.(0 But where the donee is also execu- tor or administrator, it is in some sort an exception ; for, as a person in the character of an executor or administrator is examined upon oath to charge himself with receipt of assets, he may so frame his examina- tion as to make it operate in his discharge, which necessarily enables him to prove the manner of his becoming possessed of the property ■delivered to him as a donatio mortis causa.{m) CHAPTER VIL OF THE DUTIES 05 THE EXECUTOR OR ABMINISTRATOR IN RESPECT TO THE INVENTORY, AND OP ENFORCING THE RETURN OP INVENTORIES, AND OP THE ASSETS "WHICH GO TO THE EXECUTOR OR ADMINIS- TRATOR. The proving of wills and the appointment of executors, adminis- trators and special administrators, the control over the estate before the grant of probate or administration, and the interest of the executor or administrator in the goods, &c., of the deceased having been treated of, the law prescribing the duties and powers, and regulating the con- duct of executors, administrators and collectors, in the discharge of their trusts, comes now to be considered : The first duty of an executor, administrator or special administra- tor, (a) after receiving his letters, is to make and file an inventory of (k) Wms, on Exrs. 659, and cases cited. See, also, Bloomer v. Bloormr^ 2 Brad. Suit. Rep. 340 ; Merchant v. Merchant, lb. 432 ; Huntington v. GiVmore, 16 Barb. Sup. Ct. Rep. 243. In the last named case a doubt is intimated, whether a subsequent bequest of the same prop-* erty to a third person does not revoke the gift mortis causa. But the true doctrine probably is as laid down in the text, and by«Mr. Surrogate, in Merchant v. Merchant, who declares in that case that a will does not revoke a gift cav,sa mm-iis ; because the will does not speak till the testator's death — the moment the donation, by its terms, has become absolute. (l) See Thorp v. Ames, 1 Saudf. Ch. Rep. 26, (m) Wms. 661. (a) The special administrator or collector is expressly required to give surety, that he will make and return an inventory to the surrogate within three months. See 2 R, S. 17 ; 4tk €d. 262, seo. 43 ; Ante, p. 231. 244 APPOINTMENT OP APPRAISERS. the, personal property of the deceased. The ancient ecclesiastical law was very strict with respect to the making of inventories, and the con- sequences of neglecting to make one, seems to have been to prevent the executor from relying on want of assets. Even the temporal courts formerly considered the neglect of this duty in a light unfavorable to the party, especially where there was a deficiency of assets; and although not conclusive on him, yet exposing him to imputation.(&) If the executor or administrator neglect this duty, he will render himself liable, personally, for all costs and expenses of compelling its performance. It is, besides, the part of a prudent person who sustains such an office, in every case to see that the effects are carefully ap- praised, and reduced into an inventory, not only because he may be summoned to produce it, but also because a distinct and accurate knowledge of the fund is necessary, as will appear from the sequel, to direct him in the safe execution of the trust.(c) The law requires that the inventory shall be made by the executor or administrator, with the aid of appraisers duly appointed for that purpose by the surrogate. Of the Appointment of Appraisers. The article of the Eevised Statutes, relating to the duties of execu- tors and administrators, in taking and returning inventories, 'provides as follows : Sec. 1. Upon the application of any executor or administrator, the surrogate who granted letters testamentary or of administration, shall, by writing, appoint two disinterested, appraisers, as often as occasion may require, to estimate and appraise the property of a deceased per- son ; and such appraisers shall be entitled to receive a reasonable com- pensation for their services, to be allowed by the surrogate.((i) A verbal application for the appointment of appraisers is sufficient ; . it need not be in writing. They are appointed by the surrogate, and an order for their appointment is made and entered in his minutes. (For form of the order, see Appendix, JSTo. 41.) The surrogate has the selection of the appraisers, and the reason of the statute would seem to require that he should designate these officers, in order to insure as well competency as impartiality in the discharge of their duties. The practice has been, for the surrogate to appoint such competent persons as the executor or administrator might nominate.(e) « Of the Notice of the Appraisement, and the Qy.alification of the Appraisers. The statute directs as follows : Sec, 2, The executors or administrators of any testator or intestate, within a reasonable time after qualifying, and after giving the notice in the next section required, Avith the aid of appraisers, so appointed (6) Wms. on Exrs. 835, and note. (c) Toller on Exrs. 250. ■ {d) 2 R. S. 82 ; 4th ed. 268. (e) In the court of the surrogate of the county of New York, the surrogate, in most cases, names one of the appraisers, and the executor or administrator the other. MANNER OF TAKING THE INVENTORY, ETC. 245 by the surrogate, shall make a true and perfect inventory of all the goods, chattels and credits of such testator or intestate, and where the same shall be in different and distant places, two or more such inven- tories as may be necessary. Sec. 8. A notice of such appraisement shall be served five days pre- vious thereto, on the legatees and next of kin, residing in the county where such property shall be ; and it shall also be posted in three of the most public places of the town. In every such notice the time and place at which such appraisement will be made shall be specified. Sec. 4. Before proceeding to the execution of their duty, the ap- praisers shall take and subscribe an oath, to be inserted in the inven- tory made by them, before any officer authorized to administer oaths, that they will truly, honestly and impartially appraise the personal property which shall be exhibited to them, according to the best of their knowledge and ability.(ee) It will be observed, that the statute requires executors and adminis- trators to exhibit inventories, as part of their duty, without any pro- ceeding to call upon them to do so. The above second section pro- vides that the executor or administrator shall make the inventory within a reasonable time after qualifying ; ■ and the statute afterwards, as will presently appear, requires that the inventory shall be returned by the executor or administrator to the surrogate within three months from the date' of his letters. (For form of the notice under the above section, numbered 3, see Appendix, No. 42.) Whether the service of this notice on the legatees and next of kin must be personal, or how otherwise, is not stated. Probably such service as is required of a citation on proving a will, is sufficient. The effect of an omission to serve or post a notice at all is not declared ; - and there is nothing directing the surrogate to exact any observance of this section. (For form of the appraiser's oaths, according to the above section, numbered 4, see Appendix, No. 43.) Of the Manner of taking the Inventory, and of the Property to he included therein, and to he deemed Assets, and of the Property exempt from Ap- praisemeiU, and to remain in the possession of the Widow. The statutes provide as follows : Sec. 6. The appraisers, shall, in the presence of such of the next of kin, legatees or creditors of the testator or intestate as shall attend, ^proceed to estimate and appraise the property which shall be exhibited to them ; and shall set down each article separately, with the value thereof in dollars and cents distinctly, in figures, opposite to the articles respectively. Sec. 6. The following property shall be deemed assets, and shall go to the executors or administrators, to be applied and distributed as part of the personal estate of their testator or intestate, and shall be included in the inventory thereof. {ee) 2 R. S. 82 ; 4th ed. 268 ; S. L. 1837, 534, see. 59 ; 2 R. S. (4th ei) 211, see. 18; S. L. 1849, 235; 2 R. S. (4th ed.) YOO; S. L. 1850, ch. 201. 246 MANNER OF TAKING THE I2STENT0ET, ETC. 1. Leases for years ; lands held by the deceased from year to year ; and estates held by him for the life of another person. 2. The interest which may remain in the deceased at the time of his death, in a term for years, after the expiration of any estate for years therein, granted by him or any other person. 3. The interest in lands devised to an executor for a term of years^ for the payment of debts. 4. Things annexed to the freehold, or to any bnilding for the pur- pose of trade or manufacture, and not fixed into the Avail of a house, so as to be essential to its support. 5. The crops growing on the land of the deceased at the time of his- death. 6. Every kind of produce raised annually by labor and cultivation, excepting grass grow'ing and fruit not gathered. 7. Eent reserved to the deceased, which had accrued at the time of his death. 8. Debts secured by mortgages, bonds, notes or bills ; accounts, money and bank bills, or other circulating medium, things in action, and stock in any company, whether incorporated or not. 9. Goods, wares, merchandize, utensils, furniture, cattle, provisions, and every other species of personal property and effects, not herein- after excepted. Sec. 7. Things annexed to the freehold or to any building, shall not go to the executor, but shall descend with the freehold to the heirs- or devisees, except such fixtures as are mentioned in the fourth sulv division of the last section.(5i) Sec. 8. The right of ah heir to any property not enumerated in the preceding sixth section, which, by the common law, would descend to him, shall not be impaired by the general terms of that section. Sec. 9. Where a man having a family shall die, leaving a widow, or a minor child or children, the following articles shall not be deemed assets, but shall be included and stated in the inventory of the estate, ■without being appraised. 1. All spinning wheels, wesiving looms, and stoves put up or kept for use by his family. 2. The family Bible, family pictures and school books used by or in the family of' such deceased person ; and books, not exceeding in value fifty dollars, which were kept and used as part of the family library, before the decease of such person. 3. All sheep, to the number of ten, with their fleeces, and the yam and cloth manufactured from the same ; one cow, two swine, and the pork of such swine. 4. All necessary wearing apparel, beds, bedsteads and bedding; necessary cooking utensils ; the clothing of the family ; the clothes of a widow and her ornaments proper for her station; one table, six chairs, six knives and forks, six plates, six tea cups and saupers, one sugar dish, one milk pot, one tea pot, and six spoons.(A) Sec. 10. The said articles shall remain in th^ possession of the widow, if there be one, during the time she shall live with, and pro- (g) 2 E. S. 83 ; 4th ed. 269. (ft) lb. MAJilNER OP TAKING THE INVENTORY, ETC. 247 vide for, sucli minor child or children. When she shall cease so to do, she shall be allowed to retain as her own, her wearing apparel, her ornaments aad one bed, bedstead and the bedding for the same ; and the other articles so exempted, shall then belong to such minor child or children. K there be a widow, and no such minor child, then the said articles shall belong to such widow. Sec. 2. When a man having a family shall die, leaving a widow or minor child or children, there shall be inventoried by the appraisers, and set apart for the use of such widow, or for the use of such widow and child or children, or for the use of such child or children, in the manner now prescribed by the ninth section of title third, chapter six, of part second, of the Revised Statutes, necessary household furniture, provisions or other personal property in the discretion of said apprais- ers, to the value of not exceeding one hundred and fifty dollars, in addi- tion to the articles of personal property now exempt from appraisal by said section, (t) Sec. 12. [Sec. 11.] The inventory shall contain a particular state- ment of all bonds, mortgages, notes and other securities for the pay- ment of money belonging to the deceased, which are known to such executor or administrator, specifying the name of the debtor in each security ; the date, the sum originally payable, the indorsements thereon, if any, with their dates, and the sum which, in the judgment of the appraisers, may be collectable on each security.('a) Sec. 13. [Sec. 12.] The inventory shall also contain an account of' all moneys, whether in specie or bank bills, or other circulating medium belonging to the deceased, which shall have come to the hands of the executor or administrator ; and, if none shall have come to his hands, the fact shall be so stated in such inventory. Sec. 14. [Sec. 13.] The naming of any person executor in a will, shall not operate as a discharge or bequest, of any just claim which the testator had against such executor ; but such claim shall be in- cluded among the credits and effects of the deceased, in the inventory, and such executor shall be liable for the same, as for so much money in his hands, at the time such debt or demand becomes due ; and he shall apply and distribute the same in the payment of debts and legacies," and among the next of kin, as part of the personal estate of the deceased. Sec. 15. [Sec. 14.] The discharge or bequest in a will, of any debt or demand of the testator, against any executor named in his will, or against any other person, shall not be valid as against the creditors of the deceased ; but shall be construed only as a specific bequest of svich debt or demand ; and the amount thereof shall be included in the in- ventory of the credits and effects of the deceased, and shall, if neces- sary, be applied in the payment of his debts ; and, if not necessary for that purpose, shall be paid in the same manner and proportion as other specific legacies.(/tf) The appraisers having been sworn, the executor or administrator, with their aid, on the day and at the place specified in the notice, in (i) S. L. 1842, 194; 2 B. S. (4th ed.) 270, see. 11. hi) 2 R. S. 84 ; 4th ed. 270. (A) lb. 248 MANNER OF TAKING THE INVENTORY, ETC. the presence of sucli of tlie parties as clioose to attend, proceeds to make out the inventory of the property, according to the appraiser's estimate and appraisement. « The inventory exhibited by an executor or administrator, ought to contain a full, true and perfect description and estimate of all the chattels, real and personal, in possession and in action, to which the executor or administrator is entitled in that character, as distinguished from the heir, the widow, and the donee mortis causa of the testator or intestate. It must also distinguish such debts as are separate from those which are doubtful or desperate ;(Z) and by the above section, num- bered 11, the inventory must state the sum which, in the judgment of the appraisers, may be collectable on each security. The above section, numbered 6, specifies with great particularity the property which is to be deemed assets, and go to the executor or administrator, and be included in the inventory. The meaning and objects of this section are thus explained by the revisers, in a note tO' their original report to the legislature. They say : — "It seemed important to give information to executors, administra- tors and appraisers, of the description of property which was com- mitted to their charge. The decisions of the courts have fluctuated in respect to some of the articles enumerated, and it is desirable that the law relating to them should be made as permanent as it can be by legislative authority. " It has' been supposed that the same legal character should be given to an article, without reference to the parties in controversy, -and that, therefore, certain fixtures which are deemed chattels as be- tween landlord and tenant, should be considered in the same light as between executor and heir. A reference to Toller's Treatise, at p. 199, and to 6 Cowen's Eep. 655, will exhibit the uncertainty of the law on this point. It ought, at all events, to be definitively settled. " For these reasons, this section has been drawn with great care, so as to enumerate those articles which are likely to occasion doubt, to settle some disputed cases, and yet to include everything which ought to be included by the use of general terms, and, at the same time, to protect the heir."(?n) . The fourth subdivision of the sixth section specifies the things which are to be considered personal property, as distinguished from fixtures. Taken literally, this provision would strip the heir of the wheels, gearing, and all the other machinery fixed in the ordinary way to a mill or manufactory inherited by him. It is certainly contrary to the ancient common law,(K) and seems to derive very questionable counte- nance from more modern authority, (o) A pump and pipe, balances and scales, and a beer pump, are prima facie personal property, and can only descend to the heir, in conse- [l) Wms. on Bxrs. 841. (m) 3 R. and or. S. (2d ed.) App. 639. (n) "See 11 Tin l&l; Executor, (z) pi. 6; Amos & Per. on Eixt. 133, and cases there cited, on to p. 138." (o) Walker v. Slierrrum, 20 "Wend. 636 ; Squier v. Mayer, a short note of which is given in 2 Freem. 246, goes the farthest towards this statute rule ; hut how very doubtful this and some other modern cases of the like tendency are, may be seen by Amos & Fer. on Fixt. ch. 4, sec. 2, p. 151, and cases there cited. See, also, Gibbons on Fixt. 11, 12." 20 Wend. 664. MANNER OF TAKING THE INVENTORT, ETC. 249 quence of being annexed to the freeliold in sucli a manner, and under sxicb circumstances, as to come within the above seventh section of the statute. (^j) With respect to the above section, numbered 8, the revisers, in their note, say that it was inserted from abundant caution.(^) In stating in the inventory the articles exempt from appraisement by the above 9th section, care should be taken so to describe them that they may be easily identified and separated from the other- per- sonal property. The articles set apart, pursuant to the second section of the Law of 1842, above quoted, ought to be distinguished from the other reserved articles, and stated to be set apart by the appraisers, in the exercise of their discretion, pursuant to that statute. The terms of this second section do not give the appraisers a discretion in the cases mentioned, as to whether they will or will not set apart the articles, or the amount in value of such articles, but merely as to the particular articles which they will set apart, (r) As they may set apart any per- (p) Hovey v. Smith, 1 Barb. Sup. Ct. Eep. 3'72. (q) 3 R. S. (2d ed.) App. 639. [r] In Bliss v. Sheldon, 1 Barb.. Sup. 7,i. Rep. 150, in the judgment of the court, delivered by Mr. Justice Gridley, a reference is made to the construction of this statute, given in the first edition of this work ; but an opinion is not expressed as to its correctness. No exami- nation is made of the other provisions of the act of 1842. In a work, entitled "Weight's Executor's Guide," by David "Wright, counsellor-at-law, a construction is placed upon this statute directly contrary to that given in the text. As a curious specimen of legal erudition, and as exhibiting a novel, but, probably, convenient mode of legal research, it is deemed proper to insert this writer's position and argument, upon that question, in fall ; — " The legislature have left it entirely to the discretion of the appraisers, whether they wiU allow the widow and children any part of the amount specified in this section ; or, if any part, how much. From their decision there seems to be no appeal. " Finding, upon the pubheation of the first edition of this work, that there were some who differed with me in regard to the construction of this statute, I sent a copy of the second edition to Chancellor Walworth, and in the letter accompanying the same, called his atten- tion partiada/rly to my construction of this statute. In answer, he says : — 'I see no grounds for questioning your construction of the act of 1842, relative to the $150.' The legislature appear to have intended to make the appraisers the judges, whether any household furniture, provisions, or other personal property, was necessary for the family, and if so, how much and what articles, not exceeding the amount prescribed, &c. I also, about the same time, sent a copy of the book to Hon. Lewis H. Sandford, then Yice-Chancellor of the first Circuit, now one of the justices of the Superior Court of New York, and called his attention to the same part of the work, and received from him a letter of the same purport as the above. I am not aware of any reported ease upon the subject. If the legislature has made the appraisers the judges in the matter, and submitted the matter to their discretion, I can't see what court or officer can assume to control them in their judgment, or compel them to exercise their discretion otherwise than as to them may seem discreet." It is quite apparent' that the reason Chancellor Walworth saw " no grounds for question- ing," &c., was because he did not look. He was presented with the second section of the Act of 1842, alone by itself ; and this writer's printed construction of it, in the second edition of "his work;" and asked for his opinion — and he pohtely says, "he sees no grounds," &c. A moment's reference to the provisions of the first section of the act, it is believed, would have shown hun, at any rate, some grounds for questioning this writer's construction of the provision in question. Whether the statement, in the next sentence, of what the legislature appear to have intended, "vvas a part of Chancellor Walworth's letter, or fiowed spontaneously from the wisdom of the counsellor — and whether Tice-Chancellor Sandford concurred in this sentiment or not, are, perhaps, left in little doubt and obscurity ; but one thing is certain that it speaks no compliment, of either the good sense or the consistency of th6 legislature to suppose that, in this statute, the objects of the two sections of which are identical, to put a certain portion of the property of a debtor or deceased person out of the reach of big creditors, they should have made the exemption absolute in the case of the hving debtor, but left the family of the deceased person at the mercy of the discretion, ignorance or caprice 250 MANNER OF TAKING THE INTBNTOKT, ETC. sonal property, they may in their discretion set apart the whole in money, or a portion in furniture or other articles and a portion in money. The act of 1842, is entitled " An act to extend the exemption of household furniture and working tools from distress for rent, and sale under execution."(s) And the first section provides that, in addition to the articles now exempt by law from distress for rent, or levy and sale under execution, there shall be exempted from such distress, and levy and sale, necessary household furniture and working tools, and team owned by any person being a householder, or having a family for which he provides, to the value of not exceeding one hundred and fifty dollars. The right of the debtor, under this provision, to the exemp- tion, to the full amount of one hundred and fifty dollars, is perfectly clear. The second section then provides for a case in which property might be tatken from the family of a deceased person, under circum- stances of the same hardship as those for which a remedy is afforded by the first section ; and property, in the discretion of the appraisers, is exempted to the value of not exceeding one hundred and fifty dollars. The same reason for the exemption, to the full amount of one hundred and fifty dollars, exists in both cases ; and the grammati- cal construction and punctuation of the section confirm this view of its of the appraisers — a discretion, in this writer's opinion^ beyond control — and appraisers, of whom he hag, in his own fine way, stated, he " can't see what court or officer can assume to control them in their judgment, or compel them to exercise this discretion, otherwise than as to. them may seein discreet." There is not any reported case, expressly deciding this particu- lar question ; but it is believed that no one, having practical occasion to examine the subject, wUl be found to agree in opinion with the counsellor. Bliss v Sheldon certainly does not favor the doctrine, that it lies in the_ breast of the appraisers utterly to deprive the widow and minor children of the amount of the exemption. The surrogate of the county of New York clearly considers it the duty of the appraisers to set apart property as exempt. In Af- plegate v. Cameron, 2 Bradf. Surr. Rep. 121, where the appraisers had set apart more than the amount limited by the statute, he says: — "The discretion given to the appraisers relates to the particular property set apart ; that is, they may appropriate household furniture, pro- visions, or other personal property, in their discretion." And again: — "If the appraisers should neglect to set apart any property for the widow or minor ohUdren, or i^ in discharging their duty, they commit error, the surrogate has such a supervision of their proceedings that he may correct any irregularity, mistake or improper valuation." And it is known that the surrogate of the county of Kings concurs in the same view of the statute. It remains only to add, that this error, of this writer's, is Uable to prove peculiarly unfor- tunate and mischievous, from the name and ostensible character of the book in which it occurs, and the kind of persons among whom the book is calculated to circulate. The book is styled " "Wright's Bxecutor'a Guide," is sold at a low price, and mostly finds its way mto the hands of executors .or administrators of small estates and contracted ideas, who purchase it as a substitute for the advice of a lawyer, or to save themselves the trouble of gomg to the surrogate's office, where they "are in doubt as to their powers or duty. It is with reference to such estates and in such cases, that the amount set apart for the widow and minor chil- dren, by the statute, is most likely to become a matter, both of importance and of dispute. The estate being small and the debts large, and the executor, perhaps, unfriendly to the widow, the appraisers, at his instance, in order that the fund for the payment of the debts ma^ be as large as possible, and on the strength of that opinion of the counsellor-at-law, re- fuse to set apart any property for the widow and family. The result of which would be, unless the widow bowed to the same authority, to involve the executor in trouble, expense and a law suit. And other cases might be given of evils flowing from this deliberate and maturely considered blunder. It is a blunder, however, which a writer like the author of this Guide, apparently entirely unconversant with the examination of legal subjects, would very naturally fall into. Whether that is its sufficient excuse, is another question. (s) S. L. 1842, oh. 157, p. 193. MANNER OP TAKING THE INVENTORY, ETC. 251 meaiiing. There could not be any reason for vesting in tlie appraisers a discretion as to the amount to whicli the exemption should be ex- tended. Even supposing that the exemption applies only as against creditors, the appraisers, at such an early stage of the administration, could not have the means of judging whether it ought to be allowed or not. To prevent disputes between the widow or minor children, and the executor or administrator, as to what particular articles or property should be reserved, and to protect the widow and children from imposition or fraud, the appraisers are very properly given a dis- cretion to make the selection. Another purpose of their discretion, it may be presumed, was intended to be, that in setting apart the exempt articles or property, no single article should be reserved, which, being taken a^^-ay, would render an entire lot or set, or combination, of greatly and more than proportionably, diminished value ; as, for instance, if the widow or children should be allowed to take one of a span of horses, or a yoke of oxen, or a single volume of a number con- stituting an entire work, or a fragment of a piece of furniture or machinery. But to give them a discretion to what amount, not ex- ceeding one hundred and fifty dollars, the exemption should extend, and consequently, whether the widow and children should be allowed anything whatever, it is submitted,, most clearly, was not the intention of the legislature in enacting this provision. The 10th section provides for the' disposition, of the exempt articles. The articles so exempted by these sections of the statute, in favor of the family of a man who dies leaving a widow and minor children, are to remain in the widow's possession so long as she is- able and willing to keep up the family circle, and provide suitably for the minor chil- dren. If the children leave the widow during their minority, contrary to her wishes, and without any fault or omission on her part, she is still entitled to the possession of the property until they arrive at full age, though they are provided for by another. ' It is otherwise, if it appear that they left in consequence of improper treatment or miscon- duct on the part of the widow. It is not enough for her to say to the> children: " Here is a shelter, and there is bread;" if, at the same time, she makes them wretched by her misconduct. That is not providing for the children within the meaning -of the statute, and they may well go out from her, and demand their portion of the property. The rule on this subject is the same, whether the widow be the mother or step- mother of the children. (<) Under the above ninth section of the' Eevised Stattites, and under the second section of the act of 1842, the executor or administrator is entitled to take the articles designated as exempt into his possession or custody on the death of the owner, in order that he may inventory them as directed by the statute ; and the widow cannot maintain tres- pass against the executor for so taking such articles into his possession. And, in respect to the property given to the widow by the act of 1842, she has no right to any specific chattel under that act, until it has been inventoried and set apart for her by the appraisers. But if the execu- it) Scofield V. Scofield, 6 HiU, 642. 252 MAiTNER OF TAKING THE INVENTORY, ETC. tor should keep tlie articles from the widow for an undue time, or otherwise abuse Ms right, he would become a trespasser db mitio.{u) If the executor or administrator file an inventory of the personal estate of the decedent, without setting .off any part of the property to , the widow, as exempt articles under the provisions of the Kevised Statutes, or of the act of 1842, and convert into money all the articles contained in the inventory, the surrogate has the power to order them to pay to the widow a sum of money, in lieu of what she was entitled to receive under the exemption laws.(?;) And where(w) there was an ante-nuptial agreement, by which the proposed husband covenanted and agreed to, and with, his intended wife, that if the marriage should take effect, in the event of his death before hers, he would, by his last will and testaraent, in writing or otherwise, give and assure unto her a certain sum yearly during her life, and also the use and occupation of certain property ; and the wife agreed that such grant was to be received in lieu of dower, or any other portion of the husband's property after his decease, but he died without making such settlement or provision — it was held, that the widow was not barred of any rights which she might have asserted if no such agreement had been executed, and that she might therefore claim the exempt articles of personal property given to a widow by the statute. , ' 1'he duty, assigned by the statute to the appraisers is not vested in them absolutely. The discretion given to the appraisers relates to the particular property set apart — ^that is, they may appropriate household furniture, provisibns, or other personal property, in their discretion;' but so far from having any power beyond this, they are expressly re^ strained by the limitation that the property so assigned shall not exceed one hundred and fifty dollars in value. They are to estimate the value ; but their action is not judicial. They are officers appointed by the surrogate to estimate and appraise the property ; but the estimate and appraisement, when made, are not conclusive. By the first ,,, section, above quoted from the Revised Statutes, if the appraiser should neglect to set apart any property for the widow or minor chil- dren, or if, in discharging their duty, they commit error, t|ie surrogate . has such a supervision of their proceedings, that he may correct any irregularity, mistake or improper valuation. Otherwise there would be no remedy ; and if appraisers should be allowed to set apart prop- erty of any value, without their valuation being subject to review, it would open a wide door for fraud. Accordingly, where abides were set apart by the appraisers, valued at a sum exceeding one hundred and fifty dollars, it was held that the act was, on its face, a violation of the statute, and invalid.(a;) The above section, numbered 11, specifies certain particulars of the securities belonging to the decedent, which must be stated in the in- ventory. The revisers, in their note to this section, say, that it was inserted as well to insure a faithful inventory, as to protect executors, («) Voelckmr v. Hudson, 1 Sandf. Superior Ct. Rep. 215. M Bliss T. SMdon, 1 Barb. Sup. Ct. Rep. 152. (w) 1 Barb. Sup. Ct. Rep. 151 (x) Applegater. Cameron, 2 Bradf. Surf. Rep. 119. MANNER OP TAKING THE INVENTORY, ETC. 253 Avho are not generally aware tliat they are responsible for debts, unless returned desperate, or proved by tliem to be so. It will also, they add, preserve evidence of the contents of the papers, in case of their loss.(2/) Stocks, bonds, mortgages, notes and other securities, should be so described, as that the appraisement shall sho^v on its face that they are correctly valued, or that any discrepancy or error in the valuation may easily be perceived, and afford no ground for an imputation of any- thing improper or dishonest. The interest of the deceased in the stock in trade, efPects and credits of a firm in which he was a partner, must be included. It may be given as one item, and should be stated with all practicable accuracy. Its value may be ascertained from the books and accounts of the part- nership ; and the executor or administrator is entitled to all necessary information in respect to such interest, from the surviving partner, and from all other sources. It is only the interest of the deceased partner, in the surplus, after the payment of the partnership debts, which is assets in the hands of his executor or administrator. It is not usual, therefore, to make a specific inventory of co-partnership assets, but it is deemed sufficient to note generally the co-partnership interest, as an in- terest in an unascertained balance — the balance, when found, being the only thing in which the administrator has any individual right of prop- erty, for the exclusive benefit of the estate of his intestate.(g) A qualified statement in the inventory, as to a partnership interest, is proper, and is generally the only one which can be made with due prudence. All the personal property of the decedent should be stated in the inventory, without reference to the situation or the future destination ■ of a.nj of the same, or to any directions in regard thereto, made by the testator. In a case where a testatrix directed her executors to deliver certain parcels sealed, up and directed to certain persons, which were in a small iron chest, to the persons to whom they were directed, unopened, and desired those persons would not tell one another what was contained in their respective papers ; the court was of opinion, that if the executors should be called to an inventory, they could not give one on oath, without knowing what was con- tained in those parcels, and that they could not safely deliver them unopened.(a) The court can only require that all the deceased died possessed of should be included in the inventory ; it cannot call for an account of the subsequent profits in his business. Again, it is not competent for the court to require an inventory of personal estate situate in another state or in a foreign country ; for foreign estates are out of the juris- diction and cognizance of the surrogate.(6) But if personal property belonging to the estate situate abroad, or tne avails thereof afterwards come into, this state, the executor or administra,tor should then file a further inventory or account for the same. (y) 3 E. and or. S. (2d ed.) App. 640. (2) Tho'mson v. Thomson, 1 Bradf. Surr. Rep. 24, 35. (a) " JPelfiam V. Newton, 2 Gas. Temp. Lee, 46;" Wm3.323, 1235. (6) See Wms. 842. 254 EBTURNING INVENTORY, AND EXECUTOR'S OATH TO SAME. The above 12tli section requires a particular statement as to moneys left by the deceased, and the 13th and 14th sections, in this connection, relate to the insertion in the inventory of debts due to the testator by the executor, and of debts discharged by the will. (For a form of an inventory complete, see »A.ppendix, No. 43.) Of returning the Inventory, and of the Executor''s or Administrator'' s Oath to the same. The statutory provisions are as follows : Sec. 16. [Sec. 15.] Upon the completion of the inventory, duplicates thereof shall be made and signed by the appraisers ; one of which shall be retained by the executor or administrator, and the other shall be returned to the surrogate within three months from the date of such letters.' Sec. 17. [Sec. 16.] Upon returning such inventory, the executor or administrator shall take and subscribe an oath, before the surro- gate; or if such surrogate be absent from the county, or incapable, from sickness or otherwise, of transacting business, or his ofiice be vacant, then before a judge of county courts of such county; stating ' that such inventory is, in_all respects, just and true — that it contains a true statement of all the personal property of the deceased which has come to the knowledge of such executor or administrator, and par- ticularly of all money, bank bills, and other circulating medium be- longing to the deceased, and of all just claims of the deceased against such executor or administrator, according to the best of his knowledge. Such oath shall be indorsed upon, or annexed to the inventory.(c) By the 59th section of the act of 1887, this oath may be adminis- tered by the surrogate, or by any commissioner of deeds, or judge of county courts. ((i) And the clerk or clerks of the surrogate of the county of Kings, (e) and the assistants appointed by the surrogate "of the county of New york,(ee) also have Authority to administer this oath. The duplicate inventory is for the convenience of the executor or administrator. It provides him with an authentic statement of ah the property which has come into his hands, and is a reliable foundation for his future proceedings in the administration. The time within which the inventory must be returned, is expressly limited by the above 15th section to three months from the date of the letters. This period, as will presently appear, may, however, for good cause, be extended by the surrogate. The inventory must be returned under oath. (For form of the affidavit, to be indorsed upon, or annexed to the papers, pursuant to the- above section, numbered 16, see Appendix, JSTo. 44.) The appraisers sometimes annex to the inventory and duplicate a certificate, setting forth that they have duly appraised the personal estate, which they subscribe, but that is unnecessary ; all that is re- (c) 2 R. S. 85 ; 4th ed. 21Q. (d) S. L. 1837, 534: 2 R. S. (4th ed.) 27 1. In Suffolk county, the oath may he taken be- fore any o£6cer authorized to administer oaths. S. L. 1833, ch. 233, p. 306. (e) S. L. 1849, 235 ; 2 R. S. (4th ed.) 700. («e) S. L. 1850, ch. 201. See ante, p. 227. PROCEEDINGS TO COMPEL EXECUTOR TO RETURN INVENTORY. 255 quired, and strictly all that is proper, is, that they should sign the papers. By the above section, numbered 1, heretofore considered, (^) the ap- praisers are entitled to a reasonable compensation for their services, to be allowed by the surrogate. The executor or administrator usually pays them without obtaining the approval of the surrogate, and has the bill allowed on the settlement of the estate ; but he may ask the surrogate's sanction before making the payment, and this is undoubt- edly the more prudent course. Of the Proceedings to compel an Executor or Administrator to return an Inventory. The following sections of the statute provide for the case of an executor or administrator neglecting or refusing to return an inventory within the three months above limited, and prescribe the measures to be taken for compelling him to return the same, and the remedy for his non-performance of this duty. Sec. 17. If any executor or administrator shall neglect or refase to return such inventory, within the time aforesaid, or within such fur- ther time, not exceeding four months, as the surrogate shall for reason- able cause allow'; the surrogate shall issue a summons, requiring such executor or administrator, at a short day therein to be appointed, to appear before him, and return an inventory according to law, or show cause why an attachment should not be issued against him. (A) Sec. 18. If, after personal service of such summons, such executor or administrator shall not, by the day appointed, return such inven- tory on oath, or obtain further time to return the same, the surrogate shall issue an attachment against him, and commit him to the common jail of the county, there to remain until he shall return such inventory. •Sec. 19. If such summons cannot be served personally, by reason of such executor or administrator absconding or concealing himself, or if, after being committed to prison, such executor or administrator shall neglect for thirty days to make and return such inventory, the surro- gate may thereupon issue, under his seal of office, a revocation of the letters testamentary, or letters of administration before granted to such executor or administrator, reciting therein the cause of such revoca- tion ; and shall grant letters of administration of the goods, chattels and effects of the deceased unadministered, to the person entitled thereto, (other than such executor or administrator,) in the 'same man- ner as original letters of administration or letters testamentary. Sec. 20. Such letters of administration or letters testamentary shall supersede all former letters, and shall deprive the former executor or administrator of all power, authority and control over the personal estate of the deceased ; and shall entitle the person appointed by such letters, to take, demand and receive the goods and effects of the de- ceased, wherever the same may be found, (i) Sec. 21. In every such case of revocation, and whenever directed by (gr) See ante, p. 244. (A) 2 R. S. 85 1 4th ed. 211. (i) 2 R. S. 85 ; 4th ed. 2"?!. 256 PROCEEDINGS TO COMPEL EXBOTJTOR TO RETURN INTENTORT. the surrogate, the bond given by sncli former executor or administra- tor shall be prosecuted, and a recovery shall be had thereon to the full extent of any injury sustained by the estate of the deceased, by the acts or omissions of such executor or administrator, and to the full value of all the property of the deceased received, and not duly ad- ministered, by such executor- or administrator ; and the moneys col- lected thereon shall be deemed assets in the hands of the person to whom such subsequent letters shall have been issued. Sec. 22. Every executor or administrator committed to prison as aforesaid, may be discharged by the surrogate or a justice of the Su- preme Court, or a circuit judge, on his delivering, upon oath, all the property of the deceased under his control to such person as. shall be authorized by the surrogate to receive the same.(M) Under the above section, numbered 17, if the executor or adminis- trator find it impracticable to return an inventory within three months after the date of his letters, the surrogate may allow him further time, not exceeding four months, on his showing reasonable cause therefor. The application for further time must be made before the three months have expired. It is ex parte, and is made on a petition under oath, or an afl[idavit setting forth the cause. The surrogate extends the time at his discretion within the four months ; and if the time be extended, an order for that purpose should be entered. (For forms of the proceedings, see Appendix, No. 45.) The same 17th section provides for the issuing of a summons to compel a delinquent executor or administrator to return an inventory. It gives the surrogate authority to take proceedings against him of his own motion. But the exercise of this authoiitj', in case the executor or administrator should prove contumacious, and the proceedings should extend to a revocation of his letters, would be likely to lead to a series of dii3S.culties in settling the administration, and might, per- haps, render the surrogate liable to trouble and-responsibilities, which probably the duties of his office do not strictly call upon him to incur. The surrogate, therefore, never ex officio calls upon an executor or ad- ministrator for an inventory.(A) The delinquency must be brought to the notice of the court by third persons duly interested in the estate of the decedent. Any person having an interest in the personal property of the de- ceased, may compel the executor or admihistrator to return an inven- tory. The proceeding is by petition to the suri-ogate. Such petition should allege the interest of the party in the personal property of the testator or intestate, and should set forth the time of the granting of the letters testamentary or of administration, and the expiration of the three months, and of any extended time which may have been granted, and should pray the issuing of a summons pursuant to the above 17th section. In the ecclesiastical courts in England, an executor or administrator is compellable to exhibit an inventory at the prayer ■ of any person having an interest, or even the appearance of an interest. Thus, the (ii) Vq. 86; 4th ed. 272.. .(7c) See Thomson v. Thomson, 1 Bradf. Suri-.Rep. 24. PROCEEDINGS TO COMPEL EXECUTOR TO RETURN INVENTORY. 257 personal representative of the residuary legatee of Mra who was the residuary legatee of the original testator, has sufficient interest for the purpose of calling on his personal representative to exhibit an inven- tory. Again, it has been laid down in a variety of cases, that a pro- bable or contingent interest will justify a party in calling for an in- ventory.(i!) Thus, if a creditor swears to certain sums due from the deceased to him, it is enough to entitle him to an inventory, though the debt be contested. So, where the assignees of a bankrupt make an affidavit of a debt due from the deceased to the bankrupt, the administrator was assigned to exhibit an inventory, notwithstanding the Statute of Limita- tions had run out since the administration' was granted.(m) So, in England, the court will compel an executor to bring in an inventory, &c., at the suit of a creditor, by a bond of the testator, not- withstanding its alleged invalidity ; and though a suit is actually com- menced on the bond, and then depending at common law ; and the court will not notice the effect of any release which a legatee may have given. ISTor will a court of equity restrain the next of kin from compelling an administrator to exhibit an inventory, on the ground that he has an equitable demand against the personal estate of his in- testate. Likewise, an executor, who is. also residuary legatee, may call on his co-executor for an inventory ; and so he may, perhaps, without any such special interest.(n) And in . the court of the surrogate of the county of JN ew York, a mere appearance of an interest is sufficient to entitle a party to a sum- mons for an inventory. And where the executor or administrator con- tests the claim of the ajJplicant, still, if the petition be properly verified, the surrogate will require the inventory without trying the issue be- tween theparties.{o) The petition should properly be under oath ; and unless the party complaining swear to the truth of the allegation of interest, the surro- gate will, perhaps, refuse to issue the summons ; because, although it is the duty of the executor or administrator to return an inventory, yet he may be very honestly carrying on the administration without per- forming that duty, and the court ought not to permit him to be harassed by prosecutions undertaken by persons in no way concerned in or prejudiced by his conduct. Besides, if the petition be sworn to, the burthen of disproving it will lie on the executor or administrator, in case he dispute its allegations. (For form of the petition, see Ap- pendix, No. 46.) On filing the petition, a summons issues, an order for which must be duly entered. (For form of the order and summons, see Appendix, No. 47.) \ Sufficient time should be allowed between the issuing and the return day of the summons, to enable the executor or administrator to have appraisers appointed, and to give the requisite notice, and make out and complete the inventory. It should be served about seven days Q) Wma 836, and cases cited, (m) Wms. 837, and cases cited. fe) lb. (o) Thomson v. Thomson, 1 Brad£ Suit. Rep. 24. 17 258 PKOOEBDINGS TO COMPEL EXECUTOR TO RETURN INVENTORY. Ijefore the day '&Xed for complying witli its exigency ; and if such haa been the case, the sjirrogate will require very substantial reasons for granting any further time. And he probably will not, in any case, extend the time, withoiit affording the petitioner an opportunity to be heard. If the executor or administrator file an inventory, the same proceedings are to be had on his part, in respect to the appointment of appraisers and the service and posting of notices, as in the case of the voluntary return of an inventory, and the inventory is to be made out in similar form. The executor or administrator may appear, on the return day of the summons, and contest the petitioner's allegation of interest. It has been seen that, if the petitioner have an interest, or even the appear- ance of an interest, it is sufficient to sustain the petition. But if the executor or administrator totally refute the petitioner's allegation of interest, or show his demand of an inventory to be vexatious, the peti- tion will be dismissed. As, if an administrator disprove kindred in a party claiming as next of kin, the surrogate will not. decree an inven- tory. And in England, in Boon's case,{p) where a legacy was to be paid at three several payments, and the executor having made two, and tendered the third, was cited by the legatee to bring in an inven- tory, it was holden by the delegates, and also on a commission of re- view, that there was no need of an inventory at his instance. So, in Fleet V. Holmes, (q) in a suit for the- recovery of a legacy, Sir G. Lee refused to decree an inventory, thinking it useless ; because the exe- cutrix had, in her answers, confessed assets sufficient to cover the legacy, and the interest claimed thereon, and the costs of the suit. Again, in Leighton v. Leighton,{r) where an executrix, being cited to exhibit an inventory, gave in a declaration loco inventorii, in which she declared that the deceased, by a bill of sale in* consideration of a debt due to her, granted to her by bill of sale all the personal estate of which he should die possessed ; Sir G. Lee held, that the declara- tion was sufficient, and refused to compel an inventory.(s) And although no statute, or rule of positive law, has fixed anytime certain, within which an inventory or account must be sued, stijl rea- son and justice prescribe some limitation. Thus, in England, in a modern case,(<) it was held, that the lapse of forty-five years, in con- junction with circumstances, afforded a reasonable presumption of the estate's having been fully administered; and that, therefore, the inven- tory and account might be dispensed with. So, where twenty-four years after the death of the intestate, eleven years after the youngest child attained twenty-one, and seven years after his insolvency, his provisional assignee sued the administratrix for an inventory and account ; and it appeared, that shortly after the intestate's death, a valuation and inventory had been made, and facts were shown, from which it might be fairly presumed that the insolvent had received (p) "SirT. Eaym.410." (q) " 2 Cas. Temp. Lee, 101." (r) " 2 Cas. Temp. Lee, 356." (a) Wms. 838. (t) "Biichie v. Bees, 1 Add. 144." ' PROCEEDINGS TO COMPEL EXECUTOR TO RETURN INVENTORY. 259 more than his share ; the court refused the application.(M) So, in a modern case,(u) a party having, after the lapse of thirty-five years, called for an inventory and account of an insolvent estate, the execu- tor, who appeared under protest, was dismissed with costs. And on another occasion, («;) in a case of inventory and account, brought by a leg- atee, a declaration, (instead of an inventory,) setting forth desperate debts due to, and large debts due from the estate, but annexing no vouchers nor accounts, was held sufficient after a lapse of seventeen years : and Sir John NichoU laid down, that in such a suit the court cannot decide whether debts alleged to be due from the estate are a legal set-off.(a;) So, in Thomson v. Thomson,{y) where thirty years had elapsed since the issuing of the letters of administration, an application for an inven- tory was denied, on the presumption that the estate had been properly administered. If the executor or administrator show the petitioner to be not entitled to demand an inventory, or that his suit is brought in bad faith, the court will charge the costs of the proceeding on the petitioner, because, notwithstanding the law required the inventory, it was not for him to volunteer to compel its observance. When an executor or adminis- trator violates his duty, the court will presume that there are enough ©f those interested in the matter to call him to account, and will not encourage a mere intruder in asserting his liability. If the executor or administrator fail to appear on the day appointed by the summons, and file the inventory, or obtain further time for that purpose, by the above section, numbered 18, the surrogate must, upon proof of the personal service of the summons upon him, issue an at- tachment against him. By the 67th section of the act of 1837,(3) the tenth, twelfth and thir- teenth sections, and sections sixteen to thirty-second, title thirteenth of chapter eighth, of the third part of the Eevised Statutes, inclusive, apply to attachments issued by surrogates. These sections will be found at length at a preceding page of this work, in connection with the subject of the jurisdiction and powers of surrogates. From the slightest examination of them, it is apparent that their provisions are incompatible with the 18th section, at present under consideration. The attachment against an executor or administrator for not returning an inventory, must command the sheriff to conimit the delinquent to the common jail of the county, there to remain until he shall return such inventory. He is not to be brought before the court to answer, as prescribed by the above enumerated sections from the Eevised Stat- utes, but is to be committed to jail in the first instance. He cannot be set at liberty on bail, as provided for by those sections, but must be kept in custody until he file the inventory, or obtain his discharge under- the above section, numbered 22. The reason of this may be, that his not returning an inventory is a palpable violation of the law ■t u) " Pitt T. Woodham, 1 Hagg. 241" 'v) " Bowles V. Edrvey, 4 Hagg. 241," (w) "3iggins v. Siggins, 4 Hagg. 242." (a;) See Wms. on Exr# 839, 840, and cases cited. ly) 1 Bradf. Surr. Rep. 24. (J2) S. L. 1837, 535; 2 R. S. (4th ed.) 422, sec. 20 ; Ante, p. 8. 260' PROCEEDINGS TO COMPEL EXECUTOR TO RETURN INVENTORY. and of his duty, evident upon the records of the court, and not sus- ceptible of explanation or excuse. Therefore, after having been ,for- naally and distinctly called upon to discharge this duty, upon' his neglect or refusal there is a complete contempt, and imprisonjnent im- mediately follows. An objection which occurs to this construction, is, that the executor or administrator has no' opportunity to dispute the service of the summons upon him, which is an essential preliminary to the granting of the attachment, before he is committed to jail. But the positive injunction of the statute cannot be got rid of on this ground, and the force of the objection can only apply to cause the sur- rogate to exact the most positive and certain proof of the due and per- sonal service of the summons, before granting the attachment. If the surrogate have reason to believe that the executor or administrator is prevented from returning the inventory by sickness or accident, he may delay the issuing of the process ; but on satisfactory proof being furnished of the service of the summons, in the absence of all excuses, the attachment must issue, and the delinquent must be committed to custody.(a) By statute,(i) the attachment is to be in form similar to that used by the Court of Chancery, [now the Supreme Court,] it is presumed, in equity cases. An order for issuing the same must be entered. (For forms of the order and attachment, see Appendix, No. 48.) The costs of the petitioner, including the fees of the surrogate, must be paid by the executor or administrator before he ca'n be discharged from the attachment, and he is liable for the same personally, and tney ought not to be allowed against the estate. And if he return an in- ventory, in compliance with the requisition of a summons, without further proceedings, the surrogate will grant an attachment against him if he refuses to pay the petitioner's costs, (c) The provisions of the statute expressly impose upon the executor or administrator the duty of making and retiuning an inventory, and the consequences of his disobedience to those provisions, should charge him personally, and ought not to be visited upon innocent parties interested in the prop- erty, which he has undertaken faithfully to administer. By the 19th section, if the executor or administrator, after being committed to prison, neglect for thirty days to return the inventory, (a) It, however, it should be considered that the sections of the Revised Statutes, enume- rated in the 67th section of the Law of 1837, are paramount to the provisions of the ISth section under consideration, or that the attachment must be issued conformably to their re- quirements, then the attachment wiU command the sheriff to bring the delmquent before the surrogate to answer, and the surrogate must direct the penalty in which he shall give bond for his appearance, and on his appearance, interrogatories roust be filed ; and in case tlie offending party be adjudged guilty of the misconduct alleged, a fine must be imposed ; and, inasmuch as the misconduct complained of will necessarily consist of the omission to perform an act or duty yet in his power to perform, by tho 23d section, (2 11. S. 538 ; Ante, p. 9,) he must be imprisoned only until he shall have performed such act or duty, and paid the fine, and the costs and expenses of the proceedings. In this view of these provisions, if the de- linquent, after such commitment, shall remain in prison for thirty days without filing the in- ventory, it is supposed that then the 19th and the subsequent sections of the 2d R. S. p. 85, will apply, and that thereupon his letters may be revoked. (6) 2 It. S. 222, sec. 6, subdiv. i ; 4:th ed. 420 ; Ante, p. 22. (c) The proceedings upon such an attachment will, of course, be governed by the sections of the Revised Statutes above referred to. See ante, p. 22. The practitioner will find no diffi- culty in following their directions. PROCEEDINGS TO COMPEL EXECUTOR TO RETURN INVENTORY. 261 the surrogate may thereupon issue, under his seal of office, a revoca- ^ tion of his letters, reciting therein the cause of such revocation. An order for the issuing of the revocation must be entered, which should set forth concisely the prior proceedings against the executor or ad- ministrator, and direct the revocation to issue. (For forms of the order and of the revocation, see Appendix, No. 49.) By the same 19th section, if the summons cannot be served person- ally, by reason of the executor or administrator absconding or conceal- ing himself, the surrogate may issue, in like manner, a r,e vocation of the letters testamentary or of administration. The most conclusive proof should be required that the summons to return an inventory could not be served, because of the executor or administrator abscond- ing or concealing himself, before issuing a revocation of his letters on this ground ; and although the statute does not prescribe any notice by advertisement to be given, it is submitted that the surrogate, in a case of doubt, may direct a notice to the delinquent, to be published in a newspaper, that unless he appear and return an inventory at a cer- tain short day, his letters will be revoked. The order for issuing the revocation, and the revocation, in a case where the executor or admin- istrator has absconded or conceals himself, should contain the proper recital of that fact. The letters having been revoked, the same section provides for the granting of letters de bonis non. The 20th section prescribes the effect of the new letters of adminis- tration, or letters testamentary. The 21st section provides, in every such case of revocation, for the prosecution of the bond given by the former executor or administra- tor, -whenever directed by the surrogate. The surrogate's direction for the prosecution of the bond, is to be obtained on the application of the new executor or administrator. The proceeding is ex parte ; but at least presumptive evidence should be furnished by the application, that the estate had suffered by reason of the misconduct of the former executor or administrator. There may be cases in which the filing of an inventory may be of great importance ; but where the acts or omis- sions of the executor or administrator have not occasioned any injury to the estate, in such cases the prosecution of the bond merely for nominal damages ought not to be permitted ; and this provision of the statute, requiring the surrogate's direction before prosecuting, seems to have been inserted to prevent unnecessary suits on these bonds. The surrogate's direction is given in the form of an order. By the 2"2d section, an executor or administrator committed on an attachment for not returning an , inventory, may be discharged, on his delivering upon oath all the property of the deceased under his control, to a person authorized by the surrogate to receive the same. This section does not requii-e that the executor or administrator should pay the costs and expenses of the. proceedings against Mm, in order to be discharged, pursuant to- its provision. The appointment of a person to receive the assets, of course supersedes the delinquent, and he is en- titled to be discharged -from imprisonment on simply delivering over the property. He is, notwithstanding, still liable otherwise for such costs and expenses. Where an executor or administrator returns an 262 EFFECT OF ONE OR MORE EXEOTJTOES RETURNING INVENTORY. inventory, after compulsory proceedings against him, and continues to retain his office, the payment of the costs and expenses may be en- forced, as has been seen, by attachment ; but where he allows himself to be superseded, he cannot be held in custody after he has duly given up the property of the deceased under his control. Of the Effect of one or more of Several JExecuiors returning an Inventory- The article of .the Eevised Statutes relating to inventories, the different sections of which have formed the principal topics of con- sideration in this chapter, provides on this subject as follows : — Sec. 23. Any one or more of the executors or administrators named in any letters, on the neglect of the others, may return an inventory ; and those so neglecting, shall not thereafter interfere with the adminis- tt-ation, or have any power over the personal estate of the deceased ; but the executor or administrator so returning an inventory, shall have the whole administration until the delinquent return and verify an inventory, agreeably to the provisions of this article.(c^) Of returning farther Inventories. The following section of the statute provides for the returning of further inventories : — Sec. 24. Whenever personal property, or assets of any kind not mentioned in any inventory that shall nave been made, shall come to the possession or knowledge of an executor or administrator, he shall cause the same to be appraised in manner aforesaid, and an inventory thereof to be returned within two months after the discovery thereof; and the making of such inventory and return may be enforced in the same manner as in the case of the first inventory.(e) The proceedings on making and retiirning a further inventory, and on compelling the return of such an inventory, must be similar, to those in respect to a first inventory, and similar forms must be used. How far the inventory filed by the executor or administrator is evidence for or against him, will be considered at a subsequent page of this work, in connection with the payment of the debts of the de- ceased, (ee) In conclusion of the present subject, it is deemed proper to observe, that in the ecclesiastical courts in England, the parties who may be cited to exhibit an inventory and account, are not confined to the executor or administrator himself, or even to those who, upon the death of the executor or administrator, succeed to the representation of the original testator or intestate. Thus, in Ritchie v. Eees,{g) Sir John Nicholl held, that the representatives of a deceased administrator cum testamento annexo, although not at the same time those of the first tes- tator, were liable to be called on for an inventory and account, upon a reasonable presumption being raised, that any part of the effects of the (d) 2R. S. 86; 4th ed. 212. (e) 2 R. S. 86 ; 4th ed. 212. (ee) See chap. 10. (g) "1 Add. 158." COLLBCTiaN OP THE ESTATE. 263 first testator had travelled into their hands :{h) the learned judge was farther of opinion, that a party having an interest in the effects was entitled to call upon such representatives for the inventory, without first taking a de bonis non grant of the effects of the first testator. So the executors of a deceased executor, though not the personal repre- sentatives of the original testator, (there b^ng an executor of the origi- nal testator still surviving,) are compellable to bring in an inventory of the effects of the original testator.(i) Whether the jurisdiction of the Surrogates' Courts in this state is co-extensive with that of the ecclesiastical courts thus noticed, no case has as yet arisen to determine. It is reasonable to believe, how- ever, that the English rule would be adopted and sustained here in a proper case. CHAPTER VIII. OF THE DUTIES AND LIABILITIES OF THE EXECUTOE OR ADMINISTRATOR IN RESPECT TO THS) COLLECTION OP THE PERSONAL ESTATE OP THE DECEASED. The next duty of the executor or administrator is to collect all the goods and chattels of the deceased. For that purpose, the law invests him with large powers and authority. As representative of the de- ceased, it has been seen, he has the same property in the effects as the principal had when living ; he has also the same remedies to re- cover them.(a) Within a convenient time after the testator's death, or the grant of administration, he has a right to enter the house de- scended to the heir, in order to remove the goods,(&) provided he do so without violence ; as, if the door be open, or at least the key be in the door ; and, although the door of entrance into the hall or parlor ■ be open, he cannot, therefore, justify forcing the door of any chamber to take the goods contained in it; but is empowered to take those only which are in such rooms as are unlocked, or in the door of which he shall find a key. He has, also, a right to take deeds and other writings, relative to the personal estate, out of a chest in the house, if it be unlocked, or the key be in it ; but he has no right to break open even a chest. If he cannot take possession of the effects without force, he must desist, and resort to his action.(c) On the other hand, if the executor or administrator on his part be remiss in removing the gopds within a reasonable time, the heir may distrain them as damage feasant.(c?) (ft) "See Holland y. Prior, 1 M. & K. 245, 246, 241." \i) " ffo/e-v. LuttreU, 2 Add. 234." See "Wms. 840. (a) " 2 Black. Comm 510." ;*) " Vid. Harg. Co. Litt. 56 b." c) " Off. Ex. 92, 93 ; 11 Vin. Abr. 267 ; Shep. Touch. 470." d) See ToUer on Exrs. 250, and note. 264 COLLECTION OF THE ESTATE. " With respect to such personal actions as are founded upon any obligation, contract, debt, covenant, or other duty^ the general rule has been established from the earliest times ; .that the right of action on which the testator or intestate might have sued in his lifetime sur- vives his death, and is transmitted to his executor or administrator.(e) Therefore, it is clear that a«i executor or administrator shall have actions to'recover debts of every description due to the deceased, either debts of record, as judgments, statutes or recognizances, or debts due on special contracts, as for rent ; or on bonds, covenants and the like,, under seal ; or debts on simple contracts, as notes unsealed,_ and pro- mises not in A¥riting, either express or implied.(ee) " The executor or administrator is the only representative of a de- ceased that the law will regard in respect of his personalties, and no words introduced into a contract or obligation can transfer to another his exclusive rights derived from such representation. By the law, all personalties and rights to the personalties are given to the executors or administrators, as all realties and rights to realties are given to the' heir, the executors or administrators being representatives of a man in respect of his personalties, in like manner as the heir in respect of the realties ; therefore, if a man enters into an obligation to pay to another, or his heirs, a sum of money, his executors or administrators, and not his heirs, shall have \\:{g) " The representation of the deceased in matters of contract by his executor or administrator, is so complete, that, generally speaking, it is not necessary, in order to transmit to the executor or administrator a right of enforcing a oontract, that he should be named in the terms of it. Thus, if monejr be payable to B., without naming his executor, yet h'is executor or administrator shall have an action for it.(/i) So, if money be payable to A. or his assigns, his executor shall take it ; for he is assignee in law.(t) But if an annuity be given to B. without say- ing to his executors and administrators, during the life of the testator's wife, upon condition that he be civil to the wife, and B. dies before the wife, his executor shall not have it ; for it was personal to B."(A;) By the second section of the act concerning " the rights and liabili- ties of executors and administrators, "(Q actions of account and all other actions ilpon contract may be maintained by executors, in all cases in which the same might have been maintained by their testators. , By the third section of the same act,' administrators shall have ac- tions to demand and recover the debts due to their intestate, and the personal property and effects of their intestate, in the same manner as executors. (c) " 1 Saund. 216 a, n. (1) toWheatleyY. Lane. The riglit of executor to sue is extended to -administrators, by Stat. 31 Edw. ip, sec. 1, oh. 11. (ee) " Went. Off. Ex. 159, 14th ed. ; Com. Dig. Administration, (B. 13 ;) Toller, 151 ;" Wms. 664^5. (g) Devon v. Pawlett, 11 Vin. Abr. 133, p. 627. See Wms. on Exrs. 665-6. ft) "Com. Dig. Admon. (B. 13.) (i) "PeaseY. Mead, Hob. 9 ; Wentw. Off. Ex. 215, 14th ed. See, also, Iremongerv. Newsam, Latch. 261 ; 1 EoU. Abr. 915 ; Executors, (X.) pi. 1. (K) "Neal v. Sanbury, Free Chan. 113. See, also, Barford v. Sluckey, 1 Bing. 226." ■Wms. on Exrs. 668. (l) 2 E. S. 113 ; 4th ed. 298. COLLECTION OF THE ESTATE. 265 " But it was a principle of the common law, that if an_ injury was done either to the person or property of another, for which damages only could be recovered in satisfaction, the action died with the person to whom, or hy whom the wrong was done. Thus", where the action was founded on any malfeasance or misfeasance, was a tort, or arose ex delicto^ such as trespass for taking goods, &c., trover, false imprison- ment, assault and battery, slander, deceit, diverting a water-course, obstructing lights, escape, and many other cases of the like kind, where the declaration imputes a tort done either to the person or the property of another, and the^fea must be not guilty, the rule was, actw person- alis moritur cum persona.{m) But this rule has received considerable alteration, and now, by statute, it is provided, that executors and ad- ministrators shall have actions of trespass against any person who shall have wasted, destroyed, taken or carried away, or converted to his own use, the goods of their testator or intestate in his lifetime. They may also maintain actions for trespass committed on the real estate of the deceased in his lifetime.(n) And further, that any person, or his personal representatives, shall have actions of trespass against the executor or administrator of any testator or intestate, who in his lifetime shall have wasted, destroyed, taken or carried away, or converted to his own use, the goods or chat- tels of any such person, or committed any trespass on the real estate of any such person.(o) By the act of the legislature, known as the Code of Procedure, passed 12th April, 1848, the forms of all actions and suits, existing be- fore the act took effect, were abolished.(f?) The article of the Revised Statutes, relative to " suits by and against executors i and administrators,"(g') further provides as follows: — ■ Sec. 1. For wrongs done to the property, rights or interests of another, for which an action might be maintained against the wrong- doer,, such action may be brought by the. person injured, or, after his death, by his executors or administrators, against such wrongdoer; and, after his death, against his executors or administrators, in the same manner, and with the like effect in all respects, as actions founded upon contracts. Sec. 2. But the preceding section shall not extend to actions for slander, for libel, or to actions of assault and battery, or false im- prisonment, nor to actions on the case for injuries to the person of the plaintiff, or to the person of the testator or intestate of any executor or administrator.(r) (m) " Prom a miscbnceptioh or misapplication of this principle, it was formeriy doubted whetlier assumpsit would lie either for or against an executor ; because the action, it was said, was in form trespass on the case, and therefore supposed a wrong, and in substance was to recover damages only in satisfaction of the wrong. Norwood v. Bead, Plowd. 180 ; Pin- cJion's case, 9 Co. 86 b, 89 a; S. G., Cro. Jao. 294, (nom. Legate v. Pinchion;) SladeM. Morley, Telv. 20; Berwick v. Andrews, 2 Ld. Eaym. 974, by PoweU, J. ; 1 Saund. 216 a, note (1)." Wms. 668. (») 2 E. S. 113 1 4th ed. 298, sec. i. (o) lb. sec 5. Ip) Code, sec. 69, (sec. 62.) (q) 2 K S 447 ; 4th ed. 690. (r) 2 R. S. 448. 2gg COLLECTION OF THE ESTATE. With respect, however, to actions for injuries to the person of the testator or intestate, the "act requiring compensation' for causing death by wrongful act, neglect or default," passed December 13, 1847,(s) as amended by the act of the 7th April,, 1849,(<) provides as follows : — Sec. 1. Whenever the death of a person shall be caused by wrongM act, neglect or default, and the act, neglect or default is such as would. (if death had not ensued) have entitled the party injured to maintain an action and recover damages in respect thereof; then, and in every such ease, the person who, or the corporation which, would have been liable, if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured ; and although the death shall have been caused under such circumstances as amount in law to felony, (m) Sec. 2. Every such action shall be brought by and in the names of the personal representatives of such deceased person, and the amount, recovered in every such action shall be for the exclusive benefit of the widow and next of kin of such deceased person, and shall be distribu- ted to such widow and next of kin in the proportion provided by law in relation to the distribution of personal property left by persons; dying intestate ; and, in every such action, the jury may give such damages as they shall deem a fair and just compensation, not exceed- ing five thousand dollars, with reference to the pecuniary injuries re- sulting from such death to the wife and next of kin of such deceased person, provided that every such action shall be commenced within ■two years after the death of such person ; but nothing herein con- tained shall affect any suit or proceeding heretofore commenced, and now pending in any of the courts of this state.(w) The " act in relation to suits brought by and against executors," passed April 2d, 1838,(m;) provides as follows :— " In actions brought by executors, it shall not be necessary to join those as parties to whom letters testamentary shall not have been issued, and who have not qualified." By sec. 21, of the act concerning " estates for years," &c.,(x) the executors or administrators of every person to whom any rent shall have been due and unpaid at the time of his death, may have the same remedy by action or by distress, for the recovery of all such arrears that their testator or intestate might have had, if living. By sec. 22, of the same act, when a tenant for life, who shall have demised any lands, shall die on or after the day when any rent be- came due and payable, his executors or administrators may recover from the under-tenant, the whole rent due ; if he die before the day when any rent is to become due, they may recover the proportion of rent which accrued before his death. By sec. 23, of the same act, as modified, by chapter 274 of the Laws (s) S. L. ]84t,Tol. II, p. 575. h) S. L. 1849, 388. (u) 2 E. S. (4th ed.) 563. (v) lb. (w) S. L. 1838, oh. 149, p. 103 ; 2 E. S. {4th ed.) 298. (x) 1 R. S. 741 ; 4th ed. (2d vol.) 154. COLLECTION OF THE ESTATE. " 267 of 1846, the grantees of any demised lands, tenement^, rents or here- ditaments, or of the reversion thereof, the assignees of the lessor of any demise, and the heirs and personal representatives of the lessor, grantee or assignee, shall have the same remedies by entry, action or otherwise, for the non-performance of any agreement contained in the lease so assigned, or for the recovery of any rent, or for the doing of any waste or other cause of forfeiture, as their grantor or lessor had, or might have had, if such reversion had remained in such lessor or grantor. By sec. 24, the lessees of any lands, their assigns or personal repre- sentatives, shall have the same remedy by action or otherwise against the lessor, his grantees, assignees, or his or their representatives, for the breach of any covenant 'or agreement in such lease contained, as such lessee might have had against his immediate lessor, except cove- nants against incumbrances, or relating to the title or possession of the premises demised. And, by sec. 25, the provisions of the two last sections extend as well to grants or leases in fee, reserving rents, as to leases for life and for years. Suits at law may be maintained by executors or administrators, as such, on promissory notes, &c., made to them in their representative capacity, where the fund sought to be recovered will be assets ; and counts on such notes may, it seems, be joined with counts on promises to the testator or intestate.(2/) Administrators may sue in their own right for causes of action accruing to them, after the death of their intestate. (z) When a con- tract is made with an executor or administrator, personally, after the. death of the testator or intestate, or where money is received by the person sued, after such death, the executor or administrator may sue, either in his own name or as executor or administrator.(a) Under the Code, where the plaintiff sues as executor or administra- tor, it is not necessary to make profert of letters testamentary or of administration. The allegation of the fact, that the plaintiff is such executor or administrator, is sufiicient.(Z)) The authority thus vested in the executor or administrator is for the benefit of the estate ; and it is incumbent on him to avail himself of his powers, with reasonable diligence, in the discovery and collection of the eifects of the deceased. Therefore, if by unduly delaying to bring an action, the executor or administrator has enabled a creditor of the deceased to avail himself of the Statute of Limitations, the executor or administrator will be personally liable.(c) In Schultz V. Pulver,{d) it was held, that if debts collectable are not' collected within a reasonable time after the granting of letters testa- mentary or of administration, the executor or administrator is person- {y) Fry v. Evans, S Wend.* 530 ; BogeH r. SerteU, 4 Hill, 492. (z) Mercem v. Smith, 2 HiU, 210. (a) Merritt T. Sea/man, 6 Barb. Sup. Ct. Rep. 330. (6) WeUes, executor, &c. agst. Wehster, 9 Howard's Prao. Eep. 251. (c) "EaywardY. Kinsey, 12 Mod. 513;" Wms. on Bxrs. 847. See, also, Darelr. Eden, 3 Dessau. 245. , (d) 3 Paige's Oh. Eep. 182 ; S. C, on Appeal, 11 Wend. 361. 268 COLLECTION OF THE ESTATE. ally responsible for the amount of such debts to creditors, or to those entitled to the proceeds of the estate, in the order of distribution, although the debts have not been lost by the delay, and no improper motives are iitiputable to the executor or administrator ; and that an administrator here is bound to take measures for the collection of a demand due the estate he represents, from a debtor residing in another state, either by obtaining himself, or employing an agent there to obtain letters of administration, and instituting proceedings by virtue thereof That case was an appeal from a decree of a surrogate, and the cir- cumstances were as follows : — In December, 1828, the appellant was cited to account before the surrogate of Columbia, as the administrator of the estate of his father, who died about the first of January, 1823. He appeared and accounted. The only matter in controversy related to two sealed notes given to the decedent by one A. Peltz, a son-in-law of the decedent, for which the administrator contended he was not liable to account. One note was' for $600, payable on demand, with interest from the 27th February, 1819 ; the other for' $50, payable in like manner, with interest from the llth June, 1821. These notes were not specified in the inventory of the decedent's estate, which was taken the 9th June, 1823 ; but at the foot thereof, the administrator . made and signed a memorandum, to the effect that the decedent held a note against A. Feltz, as he understood and believed, for $650, which he had not been able to find. The widow of the decedent survived him ; she died the 28th March, 1826, and after her death the notes in •question were found in a trunk which had belonged to her. Feltz re- . sided in Pennsylvania, where he had a farm of three hundred acres, stocked with sheep, &c., and it was conceded, before the surrogate, that he was abundantly able to pay the notes in question. He and his wife attended the funeral of his mother-in-law, from her late residence in this state, and remained in the neighborhood for several days. The notes remained unpaid, and the administrator 'contended, before the surrogate, that he was under no obligation to follow Feltz into Penn- sylvania to collect the notes, and that common decency forbade a prosecution against him upon the occasion of his being in this state. He also offered the notes to the respondents, who refused to accept them. The surrogate held the administrator responsible for the amount of the notes, with the interest thereof, and accordingly made a decree, directing him to pay to the respondents their several distribu- tive shares, and ordered him to pay the costs of the proceeding. The administrator appealed to the Chancellor, who affirmed the de cree of the surrogate, except as to the costs. ' Whereupon the adminis trator appealed to the Court of Errors, where the decree of the Chan- cellor was affirmed ; and Mr. Justice Nelson, in delivering the opinion of the majority of the court, urges the duty and liability of executors and administrators, in respect to the collection of the assets, in terms of great strictness and severity. After showing that it was clearly practicable for the administrator to have sued and collected the notes in question, in the State of Pennsylvania, he says : — " The notes are not negotiable, being sealed instruments, and there COLLECTION OF THE ESTATE. 269 -was a subscribing witness to their execution; and, thougli lost, there could have been no great embarrassment in enforcing the collection. (e) But yielding, for the sake of argument, that the administrator was not bound to take any steps in the matter during the three years, and until the notes were found ; after that, he should have immediately attended to the collection. Two years and a half more elapsed prior to the institution of this proceeding against him ; during all which time he took no measures on the subject. The utter remissness of duty, and disregard of the interest of the estate, in this particular, are calculated to excite a suspicion of collusion between him and Feltz. No prudent man would have thus neglected his own concerns, and less diligence and attention can, in no instance, be indulged in an ad- ministrator ; the course of the decisions would seem to exact a greater activity and devotion in the execution of their trust. (^) " The general rule is, that all debts in the inventory, not designated as desperate, shall be accounted assets in the hands of the executor or administrator ; and, in order to escape such accountability, he must show that they are desperate, or at least must show a demand and re- fusal.(/i) The notes in this case are inventoried as a part of the assets, with the remark that they could not be found. That explanation, after March, 1826, was no longer applicable to them. In the case of Lawson v. Copeland,{i) an executor was charged with a bond debt, for neglecting to take legal steps to collect it ; in consequence of which, it was lost. So, in Powell v. JEmns,{k) he was charged for neglecting to call in money lent out by the testator on personal security, and the debtor became insolvent. In Caffrey v. Darky, {I) trustees were charged with a loss occasioned by their negligence, in not collecting £800, payable to them by annual instalments, for their cestui que trust. In this case, it was conceded by the counsel and court, that the trus- tees were not influenced by any impure motives. The Master of the Eolls says, it would be very dangerous, though no fraud could be im- puted to the trustees, and no kind of interest or benefit to themselves was looked to, to lay down this principle ; that trustees might, with- out any responsibility, act as these did : in eight years, within which time the whole money ought to have been paid, receiving only £250, and taking no steps as to the remainder. It would be an encourage- ment to bad motives, and they cannot always be detected. Now, if in all these cases the executor or trustee was chargeable for debts through negligence of duty in the collection of them, and in cases, too, where there was no hope of reimbursement, as the debtors were insolvent, it seems to me we should not hesitate as to the conclusion in this case, marked at least with equal neglect of duty ; and where reimbursement is certain, we should hold the appellant personally responsible for the debt, and thereby add to the motive of duty as administrator, that of personal interest, in his movements' hereafter on the subject. Though (e) 3 T. E. 153, and n. c. ; 3 Cowen, 303. (jf) 4 Johns. Ch. E. 284, and eases there cited, (ft) 1 Salk. 296; Bui. N. P. 140; 3 Bac..47. (i) 2 Brown's C. C. 156. (k) 5 Vesey, 839. (l) § Ves. 487. 270 LIMITATION OF ACTIONS. I shoiild regret to charge an administrator who has acted in good faith, and intended fairly and fully to discharge his duty — nor will the law authorize us to do so, if these intentions have been directed hy a rea- sonable judgment in the matter — ^yet, it should be known, that if the property is wasted through their carelessness and want of proper atten- tion, or if the debts are- not collected within a reasonable time after, letters testamentary or of administration, either by personal application or suit, which by such means may have been collected, whether the debts have been lost by such delay or not, or whether their motives may have been pure or not, the law holds them personally responsible to the creditors and distributees. There is nothing hard or unjust in this principle. It is only exacting of these representatives that dili- gence and attention to the business of others, voluntarily assumed upon themselves, which they should, and which every discreet man would bestow upon his own." Of the Limitation of Actions in favor of the Estates of Deceased Persons. The Code of Procedure provides as follows : — Sec. 102. If a person entitled to bring an action die before the ex- piration of the time limited for the commencement thereof, and the cause of action survive, an action may be commenced by his repre- sentatives, after the expiration of that time, and within one year from his death. i Sec. 104. If an action shall be coinmenced within the time pre- scribed therefor, and a judgment therein for the plaintiff be reversed on appeal, the plaintiff, or, if he die and the cause of action survive, his heirs or representatives may commence a new action within one year after the reversal.(m) Sec. 121. No action shall abate by the death, marriage or other dis- ability of a party, or by the transfer of any interest therein, if the cause of action survive or continue. In case of death, marriage or other disability of a party, the court, on motion, at any time within one year thereafter, or afteryards, on a supplemental complaint, may allow the action to be continued by or against ,his representative or successor in interest.(w) The administrator of a deceased plaintiff may have leave to continue the action, if the pleadings show a cause of action which survives, with- out reference to any matters of defence set up by the defendant. Thus, where the defendant read affidavits, showing that the original plaintiff had assigned the demand before the commencement of the action, it was considered that the facts stated in the affidavits went to the founda- tion of the action, but were not proper to be considered on the motion ; ' and, as the pleadings showed a cause of action which survived, the ad- ministrator was allowed to continue the action,* with leave to the de- fendant to amend his answer by setting up the facts alleged in his affidavits, (o) (to) TooAies' Code, (2d ed.) 78, (n) lb. p. 96. It seems that the supplemental complaint can only be put in on motion. lb. p. 91. (o) Wing v. Ketcham, 3 How. Prac Kep. 385 ; 2 Code Reporter, 7. LIMITATION OF ACTIONS. 271 The article of the Eevised Statutes concerning " suits by and against executors and administrators," provides as follows : — Sec. 9. The time -vyhich shall have elapsed between the death of any person, and the granting of letters testamentary or of administration on his estate, not exceeding six months, and the period of six months after the granting of such letters, shaU not be deemed any part of the time limited by any law for the commencement of actions by executors or administrators.yj) In an action by an executor or administrator, before the Code, where twelve months had elapsed since the death of the testator or intestate, and the Statute of Limitations was pleaded, it seems that it was not necessary for the plaiiitiEf to reply specidljy the time allowed by law for the bringing of the suit, but he might reply generally.(g') The above section, numbered 9, provides that in actions by executors or adminis- trators, a certain time, not exceeding twelve months from the death, shall not be deemed any part of the time limited by any law for the- commencement of actions.(r) In other words, the time shall be the same, viz., six years ; but this shall be reckoned exclusively of certain time which the legislature thought ought not to be counted. " The plea," it was said, " is to be read, in effect, as if it said six years, &c., exclusive of such and such time. It is as if the statute had said such a plea shall be so read or construed." In Huntington v. BrinckerhQff,{s) a special replication was spoken of, as proper under sec. 9, upon the analogy to the practice of replying disability. The point was not be- fore the court, and the analogy is incomplete. While a general and direct issue seems to be admissible on principle, and conformable to the peculiar language of the Eevised Statutes, it is more desirable on account of its simplicity.(i) Under the system of pleading prescribed by the Code, the allegation of new matter, as of the Statute of Limitations, in the answer which corresponds with the plea in the case quoted, is to be deemed contro- verted by the adverse party, as upon a direct denial or avoidance, as the case may require.(M) A reply is not provided for. Indeed, a reply is not proper in any case, unless the answer sets up as a defence a " counter claim," as defined by sec. 150 of the Code.(w) No exception to the Statute of Limitations can be claimed, unless it is expressly mentioned in the statute. But the statute begins to ope- rate only from the time a right to demand the thing in question vests in some one. A cause of action cannot be said to " accrue," within the terms of the statute, until there is some person in existence capable of suing, or at least some/ person to whom, or against whom, it may accrue. When the act, which gives the cause of action, happens after the death of the person to whom the cause of action is intended to be given, until aTepresentative of .the deceased is appointed, the cause of {p) 2 E. S. 448 ; 4th ed. 490. (n) Howell V. BdbcocKs Em-., 24 Wen. 488. (r) See BucMm v. Ford, 5 Barb. Sup. Ct. Kep. 393-39T. (s) 10 Wen. 284. (t) 24 Wen. 490, per Oowen, J. (a) Code, sec. 168 ; Toorhies, (2d ed.,) 181. (v) Williams agst. Upton, 8 Howard's Prac. Eep. 205 ; Simpson agst. Loft and others, lb. 234. 272 ENFORCEMENT OJP JUDGMENTS. action does not accrue, or, in fact, exist.(w) Accordingly, in Buchlin V. Ford,{x) which was an action of assumpsit, brought by the plaintiff, as an administrator of John Bucldin, junior, deceased, against the defendant, as executor of John Bucklin, senior, deceased, for taking and converting goods, chattels and things in action, bills, bonds, &c., belonging to the plaintiff's intestate, of the value of $2,000, the declara- tion alleging a promise to pay the amount, and the defence was the Statute of Limitations, as a bar to the plaintiff's action; and it ap- peared from the evidence, on the hearing before the referee, that the plaintiff's intestate died in January, 1828, and that, soon afterwards, the property for which the action was brought, came into the hands of John Bucklin, senior, the defendant's testator ; that John Bucklin, senior, died in December, 1838 ; that letters of administration upon the estate of John Bucklin, junior, were granted to the plaintiff, on the 4th of November, 1886, and that the suit was commenced in April, 1642. The Supreme Court held, that the Statute of Limitations was no bar to the action ; that the statute commenced running only from the granting of the letters of administration, and not from the receipt of the property ; and that it was sufficient, if the action was brought within six years after the granting of letters of administration. And the court confirmed the report of the referee for $1,760 in favor of the plaintiff. Of the Enforcement of Judgments obtained hy the Deceased in his Lifetime The second title of the ninth chapter of the third part of the Eevised Statutes, contains the following provisions : — Sec. 2. Writs of scire facias shall be issued in the cases not otherwise provided by law, to revive a judgment in favor of the personal repre- sentatives of any deceased plaintiff, or to continue a suit by or against the representatives of either party, who shall have died in the progress thereo£(y) Sec. 22. No declaration shall be required to be filed upon the scire facias ; but where executors or administrators are plaintiffs in any such writ, they shall make profert of their letters testamentary or of ad- ministration, in the scire faxiias, in the same manner as now practiced in the declaration. And the defendant shall plead to such writ in the same manner as to a declaration, (z) These provisions are regarded as repealed by the Code of Procedure; not, indeed, in express terms, but by strong and conclusive implicar (w) The statute in relation to executors and administrators does not interfere with this principle. The section providing that the term of eighteen months, after the death of any testator or intestate, shall not be deemed any part of the time limited by law for the com- mencement of actions against his executors or administrators, (2 B. S. 448 ; 4th ed. 690, sec. 8,) and the above ninth section of the statute, are only applicable to cases where the statute has commenced running. before the death of the testator or intestate. The year and a half in the one case, and the year in the other, after his death, are not to be taken into the account in the six years in which the action is required to be brought ; thereby extending the statute in the latter case to seven years, and in the former to seven and a half years. But it does not touch the question as to what shall be deemed, in cases of this kind, the accruing of the cause of action. (a;) 5 Barb. S. C. E. 393. (y) i R. S. 576 j 3d ed 671. (z) 2 R. S. 580 ; 3d ed. 674. BNPORCBMBNT OF JJJDGMBNT. 273 tioii.(a) By section 69 of tlie Code, the forms of all actions, and suits theretofore existing were abolished, and one form of action for the en- forcement or protection of private rights, and the redress of private wrongs, denominated a civil action, was substituted. By section 468, all statutory provisions, inconsistent with the Code, are repealed ; and it is declared, that all rights of action,, given or secured by existing laws, may be prosecuted in the manner provided by the act. The writ of scire facias^ in all cases, is in the nature of an action, because the defendant may plead to it ; for, whenever the defendant may plead to any writ, whether original or judicial, it is laid down, it is in law an action ; and though, to revive a judgment, it is a judicial writ to con- tinue the eflfect of, and " have execution" of the former j udgment ; yet it is in the nature of an action, because the defendant may plead any matter in bar of the execution upon the judgment.(6) The definition of an action, given in the Code,(c) it is considered, is sufficiently com- prehensive to include the proceeding by scire facias to have execution, &c. It is a proceeding in a court of justice, by which the plaintiff prosecuted the defendant for the enforcement of a right. If the judg- ment has not been satisfied, it is the right of the representatives of the deceased judgment creditor to have satisfaction thereof by execution. A scire fcicias to revive a judgment, or rather warning the defendant to show cause why the plaintiff should not have execution thereof, being regarded as an action, the 69th section of the Code, above quoted, and the portion, above quoted, of the 468th section, are applicable to the case ; and the remedy, by a writ of scire facias, provided by the above sections of the Kevised Statutes, no longer exists.((i) There would seem to be no difficulty in resorting to the general remedy, by action given by the Cosle to, obtain the relief provided by these sections of the Eevised Statutes. The summons may be in, the usual form, and the complaint, in stating the facts constituting the cause of action, will state the same facts, substantially, whicji were for- merly stated in the writ of scire facias. The proper relief will then be (as) The learned compilers of the last (4th) edition, of the Eevised Statutes, seem to con- sider these sections of the Revised Statutes as expressly repealed by the 428th section of the Code (See 2 R. S. (4th ed.) 808.) The 428th section of the Code is contained in the second chapter, of the 13th title, of the second part of the Code. That chapter ia entitled, of " ao-' tions in place of scire facias, quo warranto, and of informations in the nature of quo wair- ranto," and declares that the writ of scire facias, the v/rit of juo warranto, kc, are abolished, and that the remedies heretofore obtainable in those forms, may be obtained by civil actions under the provisions of (his chapter, and proceeds to make provisions for actions in the place of the former scire facias, to vacate a charter of incorporation for fraud in obtaining such char- ter, or to vacate letters patent for fraud, mistake, &c., but does not anyvi^here make pro- visions applicable to the former remedy, by scire facias, to revive a judgment after the death of the plaintiff. The 428th section is, therefore, probably to be understood as abolishing the writ of scire facias in tliose oases only in which a substitute is provided by that chapter.- If the above recited sections of the Revised Statutes are repealed, such repeal is effected by construction, and the operation of other provisions of the Code. Those sections might, there- fore, well have been retained in the^4th edition of the Revised Statutes, under their appro- priate head, as sections which secured remedies, under proceedings by scire facias, which are not specifically provided for in the Code of Procedure. In The CatskiU Bank agst Sanford, (4 Howard's Prac. Rep. 100, 101,) it was considered 'that the 428th section of fiie Code, of itself) aboMshed the writ o{ scire facias in all cases. (6) Foster's Writ of Scire Facias, p. 13. ' (c) Sec. 2. (d) See Cameron and McKay agst. Young, 6 Howard's Prac. Rep. 312, and oaseB cited, 18 274 CONTINUING PUITS COMMENCED, ETC. demanded, riz. : that the plaintiff have execution of the judgment. The defendant, by answer, can make any defence which he was allowed to make, by plea, to the writ, or the declaration contained in the writ. ' The judgment, in effect, will be the same as under the superseded practice, and the lien upon land will be preserved. There is nothing in the system of the Code conflicting with this practice. The 7lst sec- tion, prohibiting an action upon a judgment rendered in certain courts between the same parties, has not any application. The parties to the action, to have execution issued upon the judgment, will not be the same parties as those to the judgment.(e) Of Continuing Suits Commenced, and of Enforcing Judgments obtained by a. former Executor or Administrator. The act relative to " the rights and liabilities of executors and ad- ministrators," provides as follows : — Sec. 14. No suit that may have been commenced by any executors or administrators who shall die, be removed or superseded, or who shall become incapable of acting, shall be abated thereby, but may be continued by the co-executor or administrator, if there be any ; and, if there be none, by and in the name of the person who shall succeed the executor or administrator so dying, removed, superseded or becoming incapable, in the administration of the same estate.(g') Though one -who succeeds another in the administration of an estate may continue a suit commenced by his predecessor, he has an election, and cannot be compelled to do so against his will.(/i) The third title, of th^ 8th chapter, of the third part, of the Eevised Statutes, entitled "of suits by and against executors and administrators, and against heirs, devisfies and legatees," contains the following pre visions : — Sec. 13. Any subsequent executors or administrators shall have execution upon any judgment that may have been recovered by any person who preceded them in the administration of the same estate, within one year from the time of the docketing of such judgment, without reviving the same by scire facias, and without any other pro- ceeding to give notice to the defendant in such judgment.(i) By Sec. 471, [sec. 390,] of the Code, the chapter mentioned of the Eevised Statutes is not affected by that statute.(/(;) Of Set-offs in Actions by Executors or Administrators. The act relative to " pleadings and set-offs," provides as follows :— Sec. 37. [Sec. 23.] In suits brought by executors and administrators, demands .existing against their testators or intestates,, and belonging to the defendant at the time of their de^th, may be set off by the defend- ant in the same manner as if the action had been brought by and^ in the name of the deceased. In a suit by an administrator upon a cause of action which arose (e) See 6 Howard's Prac. Rep. 375. {g) 2 R. S. 1] 5 ; 4th ed. 300. (ft) Bain, Adm'r, &c. v. Pine, 1 Hill, 615. See, also, CampheU v. Bovme, 5 Paige, 34. (i) 2 R. S. 449 ; 4th ed. 691. (ft) See Code, Voorhies', (3d ed.) 443. SET-OFFS IN ACTIONS BY EXECUTORS OR ADMINISTRATORS. 275 after the deatli of the intestate, the defendant catmot set off a debt due to him from the intestate, (0 ^^^"^ ^^'^j even though such debt existed at the time of the death of the intostate.(m) * "Where, in an action by an administratrix, the defendant sought to set off the amount of a note made by the intestate and indorsed for his accommodation by the defendant, which the defendant had paid after the intestate's death ; it was held not a demand existing against the in- testate, at the time of his death, within the above provision of the statute, and therefore not a proper subject of set-off.(m) It may here be observed, that there are some cases where an execu- tor or administrator, although he has an interest in a chose in action, is not entitled to the remedy : Thus, where one of two joint. obWgeas, covenantees or partners die, the action on the contract must be brought in the name of the survivor, ana the executor or administrator of the deceased cannot be joined, nor can he sue separately : For example, two' joint-merchants appoint a person to be their factor ; one dies, leav- ing an executor ; this executor and the survivor cannot join in an action against the factor ; for the remedy survives, though not the duty ; and therefore, on the recovery, the survivor must be account- able to the executor for that ; and the general rule is now settled, that though the right of a deceased partner devolves on his executor,- yet the remedy survives to his companion, who alone must enforce the right by action, and will be liable, on recovery, to account to the executor or administrator for the share of the deceased.(n) . For certain purposes, the partnership continues ; and the sixrviving partner, in virtue of the confidence originally reposed in him by his co-partaer, retains the right, as the sole acting manager of the joint concern, to collect the moneys due, and convert the property of the firm into money, and pay the debts.(o) And the representatives of the deceased partner cannot take the closing up of the affairs out of the hands of the survivor, if he is perfectly responsible, and proceeds with fairness and due diligence, in the discharge of that duty.(23) Nor will a court of equity appoint a receiver of the assets and effects of the firm, and thus deprive the surviving partner of his right to close up its affairs, if such surviving partner is responsible and acts in good faith.(g) Upon the dissolution of a partnership by the death of one of the co- - partners, the personal representatives of the deceased member of the firm are, however, entitled to have the stock on hand sold and con- verted into money, so that the share of the co-partnership funds be- longing to them may be realized, without any unnecessary delay, (r) ^ (Z) Fry V. Evans, 8 Wen. 530. f (to) Mercein v. Smith's Adm'r, 2 IliU, 210. See, also, HiM's v. TaM/man's AdmW, 21 "Wen. &1^; Merritt v. Seaman, 6 Barb. Sup. Ct. Rep. 330. '(nj Wms. 1585, and cases cited; Thomson v. Thomson, 1 Bradf. Surr. Rep. 24, 34; StUch- inMn V. Smith, 1 Paige, 35. (o) PhiUips V. Atkinson, 2 Bro. Ch. 272; 3 Kent Oomm. 51. (p) 7 Paige, 35. (q) Evans v. Evans, 9 Paige, 178. (r) jEvans v. Evans, supra. "The executrix," says the Chancellor, "if she deems it for her int^est, has a right to insist that the stock on hand shaU at once be sold for cash ; so that the remaining debts of the flrm may be paid off, and the busmeas brought to a close as soon as possible." 276 SET-OFFS IN ACTIONS BY EXECUTORS OR ADMINISTRATORS. Again, where two liave the legal interest in the performance of a contract, though the benefit be only to one of them, upon the death of the latter the remedy survives, and the executor or administrator of the deceased cannot be made a party or sue separately.(s) It follows, that where a contract is made' jointly with several per- sons, and they all die, the executor or administrator of the survivor alone can sue, and the personal representative of those who died before him cannot be joined.(s) But if the interest of the covenantees is several, and one of them dies, his executor may maintain a separate action on the covenant, notwithstanding the other covenantee be living ; and if the interest be' several, it shall make no difference that the language of the covenant is joint. On the other hand, wherever the interest of the covenantees is joint,, the rule of survivorship, above stated, will be enforced, although the covenant be in terms joint and several. The rule is the same with respect to remedies, under the system pre- vious to the Code, in form ex delicto, as those in form ex contractu; therefore; if one or more of several parties jointly interested in prop- erty, at the time an injury was committed, is dead, the action must be in the name of the survivor, and the executor or administrator of the deceased cannot be joined, nor can he sue separately.(<) The Code of ^Procedure provides that every action must be prose- cuted in the name of' the real party in interest ; except that an execu- tor or administrator, a trustee of an express trust, or a person expressly authorized by statute, may sue without joining with him the person for whose benefit the action is prosecuted.(it) But this provision has not varied the rules of law, above laid down, in respect to the collec- tion of claims in which the decedent was interested, with other persons, survivors. Where the interest is joint, especially in the case of part- ners,, the survivor alone is entitled to maintain actions for debts due the firm. Such debts are a part of the assets of the partnership, and when collected, are to be applied, in the first instance, to the payment of the debts of the partnership.(t;) The interest of the executor or ad- ministrator of the deceased partner is indirect, remote and contingent, depending upon whether the assets of the firm are sufficient for the payment of its debts. The balance of the partnership assets, after all the debts have been discharged, is the only thing in which the execu- tor or administrator has .any individual right of property for the exclu- sive benefit of the estate of his testator or intestate. If he should be joined, as a party plaintiff, with the surviving partner, in a suit on a chose in action due the partnership, the money, when collected, could not go into his hands, nor could it be divided between him and the surviving partner. It must all be paid to the surviving partner. The executor or administrator, of a deceased partner, therefore, is not a r^al party in interest in actions on claims due the' partnership. , (s) Wins. 1585, and cases cited. [t) Wma. 1580, and cases cited. («) Code, sees. Ill, 113; Voorhies, (3d ed.,) 81, 85. (v) Sutchmson v. Smith, 1 Paige, 26, and cases cited. SET-OFFS IN ACTIONS BY EXECUTORS OE ADMINISTRATORS. 277 And wittt respect to joint obligees, covenantees or parties jointly in- terested in tlie recovery of damages for injuries to property, the same rule of survivorship still holds. The interest in the obligation or cove- nant, or in the damages sued for, passes, for the purposes of collection, to the survivor, and when he has collected the judgment, he is account- able to the executor or administrator of the deceased for his propor- tional share. In equitable actions under the Code, as before the Code, all the parties in interest must be joined as plaintiffs. In actions at law, where there were several executors or administra- tors, the practice formerly was to bring the suit, in the first place, in the name of all ; and, if either of them was unwilling to have the suit prosecuted in his name afterwards, the one who had instituted the suit might then, upon a summons, have a judgment of severance, and con- tinue the suit in his own name only.(w;) And, in the Court 6f Chancery, if one of the executors or administrators, who was a necessary party, refused to join in the suit as a co-complainant, the proper course was to make him a party defendant ; stating in the bill the fact that he would not consent to be a complainant in the suit.(a;) And now, by the Code " of the parties to the' action, those who are, united in interest must be joined as plaintiffs or defendants ; but, if the consent of any one who should have been joined as plaintiff cannot be obtained, he may be made a defendant, the reason thereof being stated in the com- plaint."(?/) ■If the deceased died possessed of public or corporate funds or stocks, the executor or administrator is entitled to have them transferred to himself, or to such person as he shall appoint, on presenting to the government officer, or to ' the bank or other company, a certificate of the surrogate that letters have been granted to him. And the public officer or the bank or other company, has no right to inquire into the disposition to be made of the property, but is. bound to transfer the stock on the mere production of the proper evidence of the due ap- pointment and qualification of the ejxecutor or administrator. If there be a refusal, the official functionary, or the institution, will become liable to the executor or administrator for damages.(a) (For form of the certificate of the surrogate, see Appendix, No. 50.) Money of the deceased, on deposit in a bank, is .to be collected in the same manner. Where the deceased, having in his lifetime contracted for the pur- chase of goods, dies before the- time of the delivery, his executor or ad- ministrator may enforce the performance of the contract and the deliv- ery of the goods, and he may receive the goods which, at the time of the death, are in transit to the purchaser, and the right of stoppage in transitu does not attach on the death of the purchaser, if his estate was solvent, (a) It may here -be mentioned, that, by the death of a master, his servant is discharged ; and, therefore, the executors or administrators of the (w) 2 Waif; on Parties, 1530 ; Went. Off. of Ex. 212 ; 10 Paige, 289. {%) Thompson v. Graham, 1 Paige, 384; Tooker v. Oakley, 10 Paige, 288, and caaes cited. (y) Code of Procedure, sec. 119. (z) See ToUer on Exrs. 254 (a) Mactier v. Frith, 6 Wend. 124-5. 278 DISPOSAL OF THE ESTATE, ETC. former can bring no action to enforce the contract of service after his death. (6) Nor has tlie executor or administrator any interest in an apprentice bound to the deceased.(c) The apprenticeship is essentially dissolved, for the end and design of it, as a personal trust, cease ; but the assets in the hands of the personal representatives of the master are chargeable with the necessary maintenance of the infant ap- prenticed.W) A special administrator or collector(e) has authority to collect the goods, chattels, personal estate and debts of the deceased, and to secure the same at such reasonable expense as the surrogate shall allow; and for those purposes, he may maintain suits as administrator. The Eevised Statutes provide as follows : — Sec. 40. Upon letters testamentary, or of administration, being granted, the power and authority of such collector shall cease ; but any suit brought by him may be continued by the executor or ad- ministrator, in the name of such collector, which he shall not have power to discontinue or release. And such collector shall, on demand,' deliver to the executor or administrator, all the property and money of the deceased in his hands, and shall render an account, on oath, to the surr6gate, of all his proceedings, upon being cited for that purpose, or without such citation. Such delivery and account may be enforced by an order of the surrogate, and by attachment to be issued by him, as in other cases of administrators.(g') The proceedings refei'red to, against administrators, will be found con- sidered in a subsequent chapter of this work, in connection with the sub- ject of accounting by executors or administrators.(A) CHAPTER IX, OP THE DISPOSAL OF THE ESTATE OF THE DECEASED BY THE EXEOUTOK OR ADMINISTRATOR. The following sections of the statute relate to the disposal of the estate by the executor or administrator : — Sec. 25. If any executor or administrator shall discover that the debts against any deceased person, and the legacies bequeathed by him, cannot be paid and satisfied without a sale of the personal prop- erty of the deceased, the same, so far as may be necessary for the pay- ment of such debts and legacies, shall be' sold. The sale may be public or private, and, except in the city of New York, may be on credit, not (6) ""Wentw. Off. Ex. 141, I4th ed. But see Jaokstm v. Bridge, 12 Mod. 650. (c) Baxter v. Burfield,. 1 Bott. P. li. pi. 696, 6th ed. ; /Sf. C, 2 Stra. 1266 ; "Wms. 690. (d) 2 Kent Comm. 266. (e) S. L. 1S31, p. 529; 2 R. S. (4th ed.) 261. (g) 2R. S. 11; 4th ed. 261. (ft) Post, oh. 12. DISPOSAL- OF THE ESTATE, ETC. 279 exceeding' one year, with appi'oved secruity. Such executor or ad- ministrator shall not be responsible for any loss happening by such sale, when made in good faith aiid with ordinary prudenee.(a) Sec. 26. In making sueh sales', such articles as are not necessary for the support and subsistence of the family of the deceased, or as are not specifically bequeathed, shall be first sold, and articles so bequeathed shall not be sold untQ the. residue of the personal estate has been ap- plied to the payment of debts.(6) The executor or administrator's duty is thus distinctly pointed out ; he is not to sell the personal property of the estate, unless he has as- certained that a sale wiU be necessary to enable him to pay the debts and discharge the legades. He is then to sell only so much of the property as will be requisite for those purposes ; and. the 26th section prescribes the order in which dertain articles are to be sold, which should be strictly followed. If he discover that a sale will be neces- sary to pay debts and legacies, it is his duty to sell the personal prop- erty ; he may do so immedSately.(c) The reviser's original note to the 25th section is in these words : — ■ " Pursuant to pi'actice, although no express authority ; credit is essen- tial to have the property bring near its value ;" and to the 26th sec- tion, " conformable to law and practice."(c?) The value of the articles determined by the appraisers wiU be pre- sumed to be the actual value of such articles ; and, if the executor or administrator sell them for less, he may be called upon to show that the sale was fairly conducted, and that the price brought was the high- est which could be obtained. If the executor or administrator sell at the appraised value, it is stUl competent for the parties in interest to show that the articles were of greater value, and that a higher price could have been obtained for the same. The appraised value is only prima facie evidence of the value of the property. For these reasons, the safest and most convenient course, is, for the executor or adminis- trator to make the sale by public auction, and, after reasonable pubHc notice, and notice to parties in interest, at least, in the neighborhood. All sales of the effects of the deceased in the city of New York must be for cash. In the other counties of the state, the credit cannot ex- ceed one year. In case of sales on ctedit, the executor or administra- tor must exercise the same prudence with regard to the purchaser to whom credit shall be given, as a discreet and careful person uses in making sales of his own property. He must, besides, demand security firom the purchaser for the payment, within as brief a period as may be, not exceeding a year, of the amount of his purchase. The approved security required by the statute, may be the name of some responsible person as guarantor for the payment of the bill, or as endorser of the note of the purchaser for the ainount of his purchase. And probably neither good faith, nor any dther degree of prudence, will protect an executor or administrator against a loss occasioned by a sale of the to) 2 B. S. 87 ; 4th ed. 272. (J) 2 R. S. 87 ; 4th ed. 273. (c) NidhoU v. Ghcupmam, ? "Wend. 452, per Savage, C. J. {d) 3 Eevised and other Statutes, (2d ed.,) App. 641. 2S0 DISPOSAL OF THE ESTATE, ETC. goods of the estate on credit, if lie omit the precaution of insisting upon the security demanded by the statute. It is a general rule of law and equity, that an executor or adminis- trator has an absolute power of disposal over the whole personal effects of his testator or intestate ; and that they cannot be followed by credi- tors, much less by legatees,, either general or specific, into the hands of the alienee. The principle is, that the executor or administrator, in many instances, must sell, in order to perform his duty in paying debts, &c. ; -and no one would deal with -an executor or administrator, if liable afterwards to be called to account. The power of the executors to disi pose of a chattel specifically bequeathed, seems to have been formerly questioned : but succeeding cases appear to have established it beyond dispute.(g') And a person proposing to purchase any personal property belong- ing to the estate, probably need not inquire whether the debts, &o.',, cannot be paid without a sale, or whether the article be specifically bequeathed ; and, if so, whether the residue of the personal property has been before sold. The above quoted sections of the statute are for the government of the executor or administrator ; and a purchaser may, it is apprehended, assume that the party with whom he is dealing is acting in the business according to their directions and provisions. In general, one of two or more executors may make a valid sale of the personal assets of the estate, without the others uniting in the act of transfer. This ' rule .applies as well to notes and other securities given to executors as such, after the death of their testator, as to those given to him in his lifetime, provided the money, when recovered, would be assets.(A) As an executor may absolutely dispose of the testator's assets for the general purposes of the will, there seems no good reason why, in the exercise of a sound discretion, and presuming the language of the will does not peremptorily require an absolute sale, the executor may not raise the money required, by a partial sale or mortgage of the assets ; and, accordingly, the power of an executor or administrator to mort- gage the assets has been recognized by high authorities oh several occasions. The mortgage may be either of legal or equitable assets, or of mere choses in action, and may be by actual assignment, or by deposit.(i) Although the statute does not expressly authorize a pledge of any of the personal property, but only a sale,, there can be little doubt, on general principles, that a pledge would be supported where no &aud or collusion appeared in the transaction.. Again, it is not incumbent on the purchaser or mortgagee of the assets to see the money properly applied, although he knew he was dealing with an executor. "It is of great consequence," said Lord Thurlow, in Scott v. Tyler,(Jc) " that no rule should be kid down here ig) 'Wms. on Exrs. 19% and cases cited; Knight v. Tml>or(mgh, 4 Randolph, 666; McAlr Ksier r. Montgomery, 3 Haywood, 94. (h) Bogert v. EerleU, 4 Hill, 492. (») See Wms. 797-8, and cases cited, (ft) "2 Dick. 725." DISPOSAL OF THE ESTATE, ETO. 281 whioli may impede executors in tbeir administration, or render their disposition ef ^he testator's effects unsafe or uncertain to a purchaser ; his title is ccmplete by sale and delivery: what becomes of the price is of no concern to him. This observation applies equally to mortgages or pledges, and even to the present instances where assignable bonds were merely pledged without assignment. "(Z) Exceptions to the general power of the executor or administrator to dispose of the estate of the testator or intestate, will be found in .those cases only where collusion exists between the purchaser, or mortgagee, and the personal representatives. That an executor may waste the money, is not alone sufficient to iavalidate the sale or mortgage ; it must further appear that the purchaser or mortgagee partikjipated in the devastavit or breach of duty in the executor.(m) Fraud and covin wiU vitiate any transaction, and turn it to a mere color ; if, therefore, a man concerts with an executor, by obtaining the testator's effects, at a nominal price, or at a fraudulent undervalue, or by applying the real value to the purchase of other subjects, for his own behoof) or in any other manner, contrary to the duty of the office of executor, such concert will involve the seeming purchaser or pawnee, and make him liable to the full value.(n) Thus, where the person to whom the executor coUusively passes the property, knows that the executor is acting in violation of his trust, and in fraud of the persons interested in the due administration of the assets, the fraud vitiates the transaction, and the attempt to transfer the property is ineffectual and void.(o) The court will follow a note erf hand as the property of an estate, if really taken for assets of the estate, sold by the administrator,, though the note be taken in the private name of the administrator, and. will enforce this by injunction against the private creditors of the adminis- trator.(j9) Any person receiving from an executor the assets of his testator,, knowing that such disposition of them is a violation of the executor's duty, is to be adjudged conniving with the executor to work a devas- tavit, and is accountable to the person injured by such disposition directly, on a bill filed by him. Thus, in Colt v. Lasnier,{q) where the executor, being one of a trading firm, with the knowledge of the firm, mixed the fands of his testator's estate with those of the firm, and they were thus employed in trade ; it was held, that the firm were liable for these funds to a legatee of the testator ; and this, even admitting that (J) See Wms. 612. See, also, 2 Story's Eq. Jur., sec. U2i et seq. By the article of the Eeviaed Statutes, "of uses and trasts," (relating to real estate,) sec. 66, 1 R. S. 130; 4th ei (2d vol.) 141, no person who shall actually and in good faith pay a sum of money to a trus- tee, which the trustee, as such, is authorized to receive, shall be responsible for the proper application of such money, according to the trust; nor shall any right or title, derived by him from such trustee, in consideration of such payment, be impeached or called in question, in csonsequence of any misapplication by the trustee of the moneys paid. See Whiie v. Oar- pmter, 2 Paige, ill. (m) Wma. 799. (fl) lb. fo)Ib. (p) Glass V. Baxter, 4 Dessau. 163.. (g) 9 Cowen, 320. 28i DISPOSA£ OF f SS MiAM, WSO. the ftmds liad beeit earried to tlie aceoiiiit of the executor, and the account as to these closed oil the pa^rtnership's books. ^ j Whether, in the instance of the executor Or admirnsltKirior aliening the property of the deceased to pay his own debt to the alienee, that eirctimstancfr in itself shaU be considered conclusive as to the collu-' sion, is a point upon which the decisions of law and equity must, per-- haps, be considered at variance. At law, (although it is allowed, that if there be any con^ivcmce between an executor or administrator and his own creditor, to enable the former to commit a devastavit, that fact excepts the Case out of the general power of the executor or adminis- trator to dispose of the estate,) it has been laid down that the executor may make a valid sale of the effects' in satisfaction of his own private debt, although the purchaser knew the goods sold were the goods of the testator or intestate. But in equity it seems to be now established, (in contradiction, as it should appear to some former cases,) that the ^ecutor or administrator can make no valid sale or pledge of the assets as a security for, or in payment of his own debt, on the principle that the transaction itself gives the purchaser Or mortgagee notice of the misapplication, and necessarily involves his participation in the breach of duty.(r) Where there exists such coUiJsion as to render the dealing invald, not only a creditor, but & legatee; whether general or speciSc, is efi- litled to follow the assets ; but they must enforce their right withiri * reasonable time, or it will be barred by their aCquiescence.(s) An executor cannot be allowed, either immediately or by means of a trustee, to be the purchaser, from himself, of any part of the assets, but shall be considered a trustee for the persons interested in the estate, and shall account for the utmost extent of advantage made by him of the subject so puTChaSed,(<) A promissory note or bill of exchange, made payable to the deceased or his order, may be indorsed by his executor or administrator ; and, generally speaking; there is no difference between an indorsement of a note by the deceased and one by his personal representative. (m) By sec. 3, of the act relative to " voluntary assignments, made piir- suant to the application of an insolvent and his creditors, "(v) executors and administrators may become petitioning creditors for the discharge df an insolvent, under the order of the surrogate to whom they may be liable to account, or of the Chancellor, or any equity judge having jurisdiction ; (now of a justice of the Supreme Court having jurisdic- tion ;) and shall be chargeable only for such sum as they shall actually receive on the dividend of the insolvent's estate. it may also be properly noticed in this place, that it is provided by statute) that,, upon, the death of any master, to whom any person may (r) 'Wms. god; and cases Cited. See^ also; l3utheflaM V. ShisJCj 1 Johna (3h. Rep. 21 ; Meld V. ScMffeWK, lb- 163. (s) Wms. 801, and cases cited. (<) Wms. 801, and cases cited ; Van EppsY.Vm Epps, 1 Paige, 23'7; CampteU-V. Jolmston, 1 Sand£ Oh. Rep. 148 ; 4 Kent Comm. 438 : 4th ed. 415 : Ames v. Downing, 1 Bradf. Sum. Rep. 321. (m) Wms. on Exrs. 806 ; 1 Parsons on Contracts, 205, and eases cited. {v) 2 R. S. 16, 16; 4th ed. 198 ; S. L. 1847, Vol. I, eh. 280, sec. 16, p. 523. DISPOSAL OF THE ESTATE, ETC. 283 have been bound to service, as clerk, apprentice or otberwise, by the county superintendents of the poor, or by the overseers of the poor, the executors or administrators of such master may, with the consent of the person bound to service, signified in writing, and acknowledged before a justice of the peace, assign the contract of such service to any other person, which assignment shall vest in such assignee all the right-s of the original master, and render him subject to all his obliga- tions.(iy) If the person so bound to service, refuse to give such consent, such assignment may be made under the sanction of an order of the Court of General Sessions of the Peace, (now the Court of Sessions,) after fourteen days' notice of an application to that effect, served on the apprentice, his parent or guardian, if there be any in the county ; and, when so made, such assignment shall be as valid and effectual as if such consent had been given in manner aforesaid.(x) "Whenever a power is given, if a personal trust and confidence be thereby reposed in the donee, to exercise his own judgment and dis- cretion, he cannot refer tlie power to the execution of another ; for delegatus non potest delegare ; therefore, where a power of sale is given to executors, they cannot sell by attorney.(2/) The authority of a special administrator or collector to sell or alien- ate the personal property of the deceased, is expressly hmited by the terms of his appointment. By sec. 24, of the Law of 1837, (s) under the direction of the surro- gate, he may sell such of the goods of the deceased as shall be deemed necessary for the preservation and benefit of the estate, after the same shall have been appraised. This provision is a restraint upon the collector's power of sale, and a sale by him of personal property belonging to the estate of the de- ceased, would not be valid, except in pursuance of its terms. A pur- chaser of such property from a collector, would not be safe in taking a conveyance, without seeing that the surrogate's direction for the sale had been first obtained. In order to procure the surrogate's direction for a sale, the collector should present to the surrogate a written application, under oath, set- ting forth a description of the goods, a sale of which is deemed neces- sary for the preservation and benefit of the estate, and the cause of such necessity, and praying his direction for a sale. The application is ex -parte ; but the surrogate may, in his discretion, order it to stand over, and require notice to be given to the parties in interest, that they may have an opportunity to be heard before granting its prayer. He may also, of his own motion, demand other evidence besides the oath of the collector, of the necessity of the sale. The direction is given in the form of an order, which must be entered in the siirrogate's minutes. {w) 2 R. S. 160 ; 4th ed. 344. (a) lb. 161 ; 4th ed. 345. \y) Wms. 806. (z) S. L. 1837, 629; 2 R. S. (4"th ed.) 261, see. 39. 284 PTJNEBAL CHARGES A2SD PAYMENT OP DEBTS. CHAPTER X. PTJNERAL CHARGES AND PAYMENT OP DEBTS. OP THE DUTIES OP THE EXECUTOR OR ADMINISTRATOR IN RESPECT TO THE DISCHARGE OP THE PUNERAL EXPENSES, AND THE PAYMKNT, 01 THE DEBTS OP THE DECEASED: THE LIABILITY OP THE EXECUTOR OR ADMINISTRATOR TO SUITS POR DEBTS OWING BY THE DECEASED ; THE LIABILITY OP THE ASSETS TO EXECUTIONS UPON JUDGMENTS AGAINST THE EXECUTOR OR ADMINISTRATOR, AND OP ENFORCING THE PAY- MENT OP THE DEBTS BY THE EXECUTOR OR ADMINISTRATOR, BY PRO- CEEDINGS IN THE SURROGATE'S COURT. In treating of this brancK of the subject, this -work proposes to con- sider the liability of the executor or administrator for the funeral charges of the deceased, the statutory directions for the payment of the debts of the deceased, and the provisions declaring the liability of the estate, and governing the prosecution and limitation of actions against executors and administrators, as well as those regulating proceeding in the Surrogate's Court to compel payment. • 0/ the Order of the Payment of the Debts, and herewith of the Funeral. The following sections of the statutes prescribe the duty of the executor or administrator in respect to the payment of the debts of the deceased, and the order in which such debts are to be paid : — Sec. 27. Every executor a,nd administrator shall proceed with dUi- gence to pay the debts of the deceased, and shall pay the same accord- ing to the following order of classes : — ■ • 1. Debts entitled to a ■ preference, under the laws of the United States. 2. Taxes assessed upon the estate of the deceased, previous to his death. 3. Judgments docketed and decrees enrolled against the deceased, according to the priority thereof respectively. 4. All recognizances, bonds, sealed instruments, notes, bills and un- liquidated demands and accounts.(a) Sec. 28. No preference shall be given in the payment of any debt over other debts of the same class, except those specified in the third class, nor shall a debt due and payable, be entitled to preference over debts not due ; nor shall the commencement of a suit for the Recovery of any debt, or the obtaining a judgment thereon against the executor or adininistrator, entitle such debt to any preference over others of the same class.(a) Sec. 29. Debts not due, may be paid by an executor or administra- tor according to the class to which they may belong, after deducting a rebate of legal interest upon the sum paid for the time unexpired. Sec. 30. Preference may be given by the surrogate, to rents due or accruing upon leases held by the testator or intestate at the time of his (a) 2 R. S. 81 1 4th ed. 213 ; seoa. 31, 32, 33, 34. ORDER OP PAYMENT OE DEBTS, ETC. 285 death, over debte of the fourth class, whenever it shall be made to appear, to his satisfaction, that such preference will benefit the estate of such testator or intestate.(aa) Sec. 7. In all cases in which a record of judgment shall be filed and docketed within one year after the death of the party against whom such judgment was obtained, a suggestion of such death, if it happened before judgment rendered, shall be entered on the record; and if, after judgment rendered, the fact shall be certified on the back of such record by the attorney filing the same. Such judgment shall not bind the real estate which such party shall have had at the time of his death, but shall be considered as a debt to be paid in the usual course of administration. (6) Sec. 8. If a verdict has been rendered before the death of such party, upon which proceedings shall be stayed by a bill of .exceptions, or by any order of the court, or any officer thereof, the court may authorize the filing and docketing a record of judgment within one year after the death of such party, subject to the power of the court to vacate the same.(S) The statute, it will be observed, does not make provision for any allo\vance for the funeral expenses of the deceased. The reasonable funeral expenses are, however, to be paid in full, in preference to all other claims against the estate. The payment of the funeral charges may be made by an executor, even before probate ; fpr, as will be re- membered,(c) it is expressly excepted from the statute prohibiting an executor from disposing of, or interfering with, the estate of the de- ceased before letters testamentary are granted. And, on an accounting of an executor or administrator, as will hereafter appear, (li) he is both permitted and required to produce vouchers for all funeral charges. The executor or administrator must hury the deceased in a manner suitable to the estate he leaves behind him.(e) " Funeral expenses," says. Lord Coke,(ee) according to the degree and quality of the deceased, are to be allowed of the goods of the deceased before any debt or duty whatsoever. But the executor or administrator is not justified in in- curring such as are extravagant, even as it respects legatees or next of kin entitled in distribution.(^) Nor, as against creditors, shaU he be warranted in more than are absolutely necessary."(A) K there be any reason to suspect that the estate will ultimately prove insolvent, then any unnecessary funeral expenses will be at the personal risk of those who authorized it.(i) The rule appears to be, that the executor is entitled to be allowed the reasonable expenses of the fune- ral, according to the testator's condition in life ; and if he exceeds those, he is to take the chance of the estate turning out insolvent. No (aa) 2 E. S. i1 ; 4th ed. 2Y3 ; sees. 31, 32, 33, 34. (6) 2 E. S. 359, 360 ; 4th ed. 607 ; sees. 8, 9. (c) See ante, p. 233 ; 2 R. S.- 11; 4th ed. 257. (d) See post, oh. 12 ; 2 E. S.- 92 ; 4th ed. 278 ; see. 60 (sec. 54.) (e) 2 Black. Comm. 508. fee) 3 Inst. 202. (g) See Siackpoole v. SiacJcpooh, 4 Dow. P. 0. 227. (ft) See Shelley's case, 1 SaJk.- 296 ; 4 Burns' E. L. 348, 8th ed. ; Comberb. 342 ; Toll, on ExTS. 245; Wms. on Exrs. (4th ed.) 829; 11 Serg. & Rawle, 204; 14 lb. 64. (i) Ha/ncock v. Podmore, 1 Bam. k Adol. 260, 286 OEDER OF PAYMENT OF DEBTS, ETC. precise sum can be. fixed to govern executors in all cases. It must obviously vary in every instance, not only with the station in life of each particular testator, but also with the price of the requisite articles at the particular plaoe.(M) As against persons other than creditors, such expenses may be in- curred as will bury the deceased according to the station he occupied in life-(/(;) In Wood v. Vandenburgh,{l) Chancellor Walworth held, that the amount paid for the erection of a suitable headstone at the de- cedent's grave, may properly be considered as a part of his funeral ex- penses, in a case where the rights ^^f creditors cannot be defeated thereby. With respect to the liability of the executor or administrator to the expenses of the funeral of the deceased, it appears to be clear, tha't if an executor or administrator gives orders for the funeral, or ratifies or adopts the acts of another party who has given such orders, he makes himself liable individually, and not in his representative character, for the reasonable expenses. And, notwithstanding that, generally speak- ing, an administrator is not bound, as such, by his acts done before the letters of administration were obtained, yet it should seem that, if, be- fore taking out letters, he gives orders, or sanctions the orders which another person has given, for the funeral of the deceased, he will be thereby bound, after he has become administrator, to satisfy the charges incurred under such orders.(m) But in all cases where the executor or administrator has rendered himself personally liable for the funeral expenses to the extent, at least, that they are reasonable they are still a charge against the estate. Where the executor or administrator has neither given nor adopted any directions for the burial, but he is sought to be charged on an im- plied contract arising out of his situation, with reference to his charac- ter and the estate of the deceased, it seems that, if he has assets, he is liable, upon an implied promise, to either the undertaker or the person giving the order and paying for' the funeral, to pay the reasonable ex- penses of the burial, suitable to the decedent's degree and circum- stances ;(n) and that the law implies a contract, in such a case, on the part of the executor who has assets personally, and not in his representa- tive diaractdr.io) With respect to debts included in the first ctf the above order of classes, the laws of Congress provide, (^) that, where the estate of any deceased debtor, in the hands of executors or administrators, shall be insufficient to pay all the debts due from the deceased, the debt due to the United States shall be first satisfied ; and further, (g') that where any (ii) "Edwards v- Edwards, 2 Crompt. & M. 612 ; S. C, 4 Tyrwh. 438. See, also, Beeves v. Ward, 2 Scott, 395 ;" Wins, on Exrs. 831. {k) Matthews on Exrs. 69; Wms. on Exrs. (4th ed.) 832, and cases cited; Appeal of M'Glinsey, 14 Serg. & Rawl. 64; Flirdham's Appeal, 11 Serg. & Kawl. 16. (I) 6 Paige, 277, 285. (m) Wms. on Exrs. 1522, and cases cited. (n) See Wms. on Exrs. 1523, 1524, 1525 ; Matthews on Exrs. 68. (o) See Tugwell v. Hetjman, 3 Camp. 298 ; Rogers v. Price, 3 Younge & Jerv. 28 ; Eayter V. Moat, 2 Mees. & Wels. 56 ; Wms. on,Exr3.-1523, 1624, 1526, ip) 2 Laws of U". S. 594, seo.'5. 2) 3 Laws of D. S. 136, sec. 65. ORDER OF PAYMENT OP DEBTS, ETC. 287 estate, in the hands of executors or administrators,. shall be insuf&cient to pay all the debts due from the deceased, the debt or debts due to the United States, on anj^ bond or bonds for the payment of duties, shall be first satisfied. And any executor or administrator, who shall pay any debt due by the person or estate from whom, or for which, they are acting, previous to the debt or debts due to the United States from such person or estate being first duly satisfied and paid, shall be- come answerable in his own person or estate for the debt or debts so due to the United States, or so much thereof as may remain due and unpaid ; and actions or suits at law may be commenced against him, - for the recovery of the said debt or debts, or so much thereof as may- remain due and unpaid, in the proper court having cognizance thereof: Provided, that if the principal in any bond which shall be given to the United States for duties on goods, wares or merchandise, imported, or other penalty, either by himself, or his factor, agent, or other person for him, shall be insolvent ; or if such principal, being deceased, his or her estate and effects, which shall come to the hands of his or her executors or administrators, shall be insufficient to pay his or her debts ; and if, in either of the said cases, any surety on the said bond or bonds, or the executors or administrators of such surety, shall pay the United States the money due upon said bond or bonds ; such surety, his or her executors or administrators shall have and enjoy the like advantage, priority or preference, for the recovery and receipt of the said moneys, out of the estate and effects of such insolvent, or de- ceased principal, as are reserved and secured to the United States '; and shall and may bring and maintain a suit or suits on the said bond or bonds, in law or equity, in his, her or their own name or names, for the moneys paid thereon. Under these provisions of the acts of .Congress, the priority of the ' United States extends as well to debts by bonds which are payable aftet the decease of the obligor, as to those actually due or payable at the period thereof (r) Debts by judgment, or decree, by the statute ordered to be paid in the third class, are entitled to preference in payment out of the per- sonal estate of the deceased debtor, according to the priority in point of time of docketing the judgment, or of enrolling the decree ; and with- out reference to any supposed lien of the judgment or decree upon the real estate of the decedent.(s) That this is so, is evident from the fact, .that a prior decree, under the practice previous to the Code, if enrolled, although it was not docketed so as to make it a lien upon real 'estate, was to be paid in preference to a younger judgment which was docket- ed, and which might, therefore, ' be a lien on the decedent's real estate, if he had any, within the jurisdiction of the court. A judgment which had been docketed, or a decree which had been enrolled, more than ten years before the death of the decedent, was, therefore, entitled to be paid out of his personal estate, in preference to a junior judgment or decree which had been obtained within the ten years. Thus, in Ainslie v. RadcUff^(l) Avhere the decedent died insolvent and (r) The United Sluies v. The Stale Banic of North Carolina, 6 Peter's Rep. 29. (sj Ainslie v. Raddiff, 1 Paige, 439. {t) 7 Paige, 439. 288 ORDER OF PAYMENT pP DEBTS, ETC. intestate, leaving several outstanding and unsatisfied judgments against him, two of wliicli were docketed more tlian ten years , previous to his death, and the others within that period ; it was held, that the owners of the judgments were to be paid out of the personal assets of the in- testate, in the hands of his administrator, according to the priorities in the times of docketing their respective judgments ; without regard to the fact of some of the judgments having been docketed more, and some less, than ten years. By the common law, one judgment against the decedent had ho pre- ■ference over another judgment, in payment out of his personal estate, provided both were docketed at the time of his death. And his per' sonal representative had the right to retain for a junior judgment due to himself, or to give a preference to one judgment creditor over an- other, without regard to any priority, in point of time, of the docketing of their several judgments ; unless some proceedings had taken place subsequent to the death of the decedent, by which one judgment creditor had obtained a preference over others of the same class, and the preference which the common law gave to judgment debts over debts of specialty, or debts by simple contract, was not founded upon any supposed lien of the judgment upon the real estate of the decedent. For the preference extended to the judgments of all the inferior courts of record in England, and to decrees in Chancery, which were not liens upon real estate.(^<) But the rule as to preferences in payment was founded upon the common law principle that a specialty debt was a debt of a higher nature than a debt by simple contract, and that a debt of record was of a higher nature than either.(M) This provision of the statute does not refer to foreign judgments, nor to judgments recovered in the courts of the other states of the United States. A judgment recovered in another state, has no greater force, in respect to the distribution of the assets of a deceased person, than a foreign judgment. Neither at common law, nor under the statutes of this state, have judgments recovered in another state any title to prior- ity of payment over simple contract debts. Creditors claiming on such judgments, must come in with the creditors of the deceased, described in the fourth class of this section of the statute.(M?() It seenis that it is a matter of question, whether judgments recovered in the Circuit and District Courts of the United States in this state come within this provision of the statute.(v) Such judgments are a lien upon the lands of the judgment debtor within the respective dis-. tricts,(,it.') and executions issue thereon with the same effect as on judg' ments obtained in the courts of this state ; and otherwise, generally speaking, they have the same incidents as the latter judgments. It is hazarding little to presume that such judgments recovered in the life- time of the deceased are entitled, under the statute, to priority of pay- ment. (it) "Wms. on Bxrs. 856, 862. («) 1 Paige, 447. , (tt«) Brown v. 2%e Public Administrator, 2 Bradf. Suit. Rep. 103. [v) See Bernes v. Weisser, 2 Bradf Surr. Rep. 212. {w) See Manhattan Company v. Evertson^ 6 Paige, 45T. ORDER OF PAYMENT OP DEBTS, ETC. 289 A judgment against a surety on a stipulation in admiralty, recovered after the death of the stipulator, is not, however, entitled to priority of payment out of his assets. The above provision of the statute author- izing judgments, in certain cases, to be entered against the deceased after his death, and declaring that such judgments shall not bind the real estate, but be considered as debts payable in the usual course of administration, relates to judgments in the courts of this state only.(a;) It should be observed, that the executor or administrator is bound, as far as he has assets, to satisfy all judgments recovered against the testator or intestate, according to the priority thereof respectively, with- out regard to the circumstance, whether a judgment was founded on a cause of action which would not have survived his death. Thus, although an executor is not liable to be sued for an escape permitted by his testator ;(a;x) yet, if judgment was recovered for such escape against him in his lifetime, his executor is liable upon the judgment.(2/) By the above section, numbered 30, (2 R. S. 87,) the surrogate may give preference to the payment of rent on leases held by the testator or intestate over debts of the fourth class, upon its appearing to his satis- faction that such preference will benefit the estate. If the decease^ owned any leases, and the executor or administrator be of opinion that it will benefit the estate to hold on to them, and doubt the sufficiency of the assets to pay all the debts, he should apply to the. surrogate for an order giving preference to the payment of the rents on such leases according to this section. The application should be in writing. It should set forth, to the best of the applicant's knowledge, the situation of the estate of the deceased in respect to its sufficiency for the pay- ment of the debts, the terms and conditions, and the estimated value of the leases, and the necessity which may exist for granting an order for preference, such as the danger of proceedings on the part of the lessor, or whatever else may constitute the immediate cause for the applica- tion. The surrogate will doubtless require the application to be under oath, and may deem other evidence necessary before allowing the pre- ference. The proceeding, however, is entirely ex parte, as it would be impracticable to give notice of it to every person interested in ■ the estate. If it be made to appear to the satisfaction of the surrogate, that the preference asked for will benefit the estate, an order allowing the same must be entered in the minutes. The surrogate, upon an accounting by administrators before him, on the application of creditors, is authorized, under this section of the statute, to give a preference to a charge made by the administrators for rent paid on a lease of premises held by the intestate, if it appears to his satisfaction that such preference will benefit the estate.(2/2/) Rent due from the testator upon a church pew is not, however, a preferred debt under this provision of the statutes, unless it is rent due upon a term of years in such pew, which belongs to the executors or adminis- trators as a part of the personal estate of the testator or intestate, (z) (ic) Berries v. Wmser, 2 Bradf. Surr. Rep. 212. (xx) See post, p. 291. {y) WMtacresy. Onstey, Dyer, 322.a, b. ; 'Wms. 1480. (yy) Hm>ey v. Smith, 1 Barb. Sup. Ct. Rep. 312. {z) Johnson v. Corbett, 11 Paige, 265. 19 290 "WHAT CLAIMS UPON THE DECEASED SUETIVE, ETC. As to what Claims upon the Deceased survive against the Executor or Ad- ministrator, and of the Liability of the Executor or Administrator upon the Acts of the Deceased. The general rale has been established from very early times, with respect to such personal cl9.ims as are founded upon any obligation, contract, debt, covenant, or other duty, that the right of action, on which the testator or intestate might have been sued in his lifetime, survives his death, and is enforceable against his executor or adminis- trator.(a) Therefore, it is clear that the executors or administrators are answerable, as far as they have assets, for debts of every description due from the deceased, either debts of record, as judgments or recog- nizances ; or debts due on special contract, as for rent or on, bonds, covenants and the like, under seal ; or debts on simple contract, as notes unsealed, and promises, not in writing, either expressed or im' plied.(aa) The Eevised Statutes expressly provide that actions of account, and all other actions upon contract, may be maintained against executors in all cases in which the -same might have been maintained against their respective testators. And that administrators shall answer' and be accountable to others to whom the intestate was holden or bound, in the same manner as executors. (6) " The executors or administrators so completely represent their tes- tator or intestate, with respect to the liabilities above mentioned, that every bond, or covenant, or contract of the deceased includes them, although they are not named in the terms of it :(c) for the executors or administrators of every person are implied in himsel£(cc) " It is clear, also, that in many cases a liability may accrue against the executor or administrator, after the death of the testator or intes- tate, upon a contract made in his lifetune, although the executor or administrator be not named therein. Thus, the executor is liable upon a bond which becomes due, or a note payable subsequently to the death of the testsA.OT.{d) So, if A. is bound to build a house for B. be- fore such a time, and A. dies before the tim.e, his executors are bound to perform this contract. "(e) (a) Touchs. 482 ; 1 Saund. 216 a, note (1) to WheaMey v. Lane. It was said by Willes, C. J., in SoUers v. Lawrence, (Willes, 421,) that " actions on the case for att sorts of debts and duties are now daily brought against executors, though this was formerly doubted. But the law has been now so settled at least 150 years." (aa) "Bac Abr. Exors. (P.); 1 Com. Dig. Admon. (B, 14. ;)" Wms, on Exrs. 1464. (6) 2 K S 113 ; 4th ed. 298, sees. 2, 3. (c) ""Wentw. Off. Ex., oh. U, p. 239, 243, 14th ed." (cc) "By Lord Maoeleafield in Sydey. Skinner, 2 P, Wms. 191; Sarwood r. SilUard,2 Mod. 265." Wms. 1466. Cd) ToUer, 463. (e) "Qmek v. Imdborrow, 3 Bulstr. 80, by Coke, 0. J, In the recent case of Gordon v. CaheH, (2 Sim. 253 ; 4 Russ. Chan. Caa. 581,) A., on taking B. as a clerk, tooka bond from him and a surety, to secure his duly accounting for his receipts. No time was fixed for the continuance of the service) but it was to be determinable at the option of. either party. The surety died. His executrix gave notice to A. that she should no longer consider herself liable on the bond. A. read the notice to B., and required him to execute a new bond, with another surety, which was done. Then B. died, and deficiencies were found in his accounts, subsequent to the noMoe. And it was held, that the executrix of the surety hadjio equity to support an injunction to restrain an action on the bond." "Wms. 1466. See, also, MMtier V. FrUh, 6 Wend. 103. "WHAT CLAIMS UPON THE DECEASED SURVIVE, ETC. 291 " The proposition, however, that executors or administrators are liable upon every contract of the deceased, although they be not named, must be understood as not extending to cases where the con- tract is personal to the testator or intestate ; for, in such instances, no liability attaches ujDon the executors or administrators, unless a breach was incurred in the lifetime of the deceased, (ee) Thus, if an author undertakes to compose a work, and dies before completing it, his executors are discharged from this contract ; for the undertaking is merely personal in its nature, and, by the intervention of the con- tractor's death, has become impossible to be performed.(g') So, a cove- nant by a master for the instruction of his apprentices is personal to the master, and his executors are not liable upon it.(A) " With regard to the liability of an executor in respect of the tor- tious acts of the deceased, it was a principle of the common law, that if an injury was done either to the person or property of another, for which damages only could be recovered in satisfaction, the action died with the person by whom the wrong was committed.(i) And at this day, (unless the case falls within the provisions of the statutes, pre- sently to be mentioned,)(«) where the cause of action is founded upon any malfeasance or misfeasance^ is a tort, or arises ex delicto, such as false imprisonment, assault and. battery, slander, deceit, and in many other cases of the like kind, where the statement of the cause of action imputes a tort done either to the person or property of another, and the defence must be not guilty, the rule is, actio personalis moritur cum persona ; and if the person by whom the injury v,ras committed dies, no action of that kind can be brought against his executor or adminis- trator, (/e) " Accordingly, no action lies against an executor or administrator on a penal statute.(Z) So if a man, served with a suhposna, and having had his expenses tendered to him, neglects to appear as a witness, and dies, no action lies against his executor or administrator. (m) " Again, if a sheriff, jailer, or keeper of a prison, suffer one in exe- cution for debt or damages to escape, though hereby the party, at whose suit the execution was, be entitled not only to an action upon the case against such officer by the common law, but also to an action of debt by statute,(n) or of trespass on the case, also by statute ;(o) yet, if the officer die, no action lies against his executor for the same, be- cause the suffering the escape was a wrong of the nature of a trespass.(p) (ee) "flj/oJe v. The Deem of Windsor, Cra Eliz. 553. See the remark of Parke, B., in Siboni v. Kirkman, 1 Mees. & Wels. 423." (g) "Marshall y. Bnoadhwrst, 1 Tyrwh. 349, by Lord Lyndhurst" (h) "Baatary. BurfieU, Bott. P. L. pi. 696, 6th ed.; & G., 2 Stra. 1266." "Wms. 1467.' (») " 1 Saimd. 216 a, note (1) to Wheatley v. Lane." (ii) Post, p. 292. (fc) "1 Saund. 216 a, note (1); "Wms. 1470." " "Wentw. Oef. E.K. 255, 14th ed." (m) ""Wentw. Off. Ex. 255, 14th ed." (n) See St Westm. 2 ; 13 Edw. I, eh. 11 ; 1 Rich. II, clj. 12 ; 5 Ann, oh. 9 ; 1 R. L 1813 425, sec 19 ; 2 R. S. 43T ; 4th ed. 681. (o) 2 R S. 437 ; 4th ed. 681. (p) Anon., Dyer, 271 a; Whitacres v. Omley, Dyer, 322 a; PerUnson v. Gilford, Cro. Car. 540; Bro. Escape, 28; Exors. 100; Execution, 86; Parliament, 80; "Wentw. Off. Ex. 254. 14th ed ; Berwick v. Andrews, Lord Raym. 973, hy Lord Holt; SamUy v. Trott, 1 Oowp'. 292 WHAT CLAIMS UPOW THE DECEASED SUETITE, ETC. So, where by statute it was provided, that a sheriff who neglected to return a j^articular warrant, should be Mable to pay to the people of t"he state, to be recovered with costs of suit in an action for so much money received to their use, the whole sum directed to be levied by such warrant.(g') And the warrant had been delivered to a deputy of , the sheriff, and had not been returned ; and, after the death of the sheriff, an action of assumpsit was brought against his executors, for a balance of the sum directed to be levied remaining unaccounted ; for, it was held, that the action would not lie against the executors of the sheriff for the default of his deputy in returning the process, although the action was given by the statute for the neglect to return ; and that, although an action be given by statute in form ex contractu^ yet, where the cause of action arises ex delicto, an action cannot be sustained against the representatives of the party who would have been hable if living, unless the estate of such party was benefited by the act com- plained of — as where property was tortiously taken and sold, or remains in specie in the hands of the executor or administrator. (r) The statutory provisions, which have been adverted to, giving a remedy against the executor or administrator, for wrongs done by the deceased in his lifetime, are as follows : — i Sec. 5. Any person, or his perscsaal representatives, shall have actions of trespass against the executor or administrator of any testator or intestate, who, in his lifetime, shall have wasted, destroyed, taken or carried away, or converted to his own use,^ the goods or chattels, of any such person, or committed any trespass on the real estate of ^any such j)erson.(s) Sec. 6. The executors and administrators of every person,, who, as executor, either of right or in his own wrong, or as administrator, shalll have wasted or converted to his own use, any goods, chattels, or estatei of any deceased person, shall be chargeable in the same manner as their testator or intestate would have been, if living. (^) Sec. 1. For wrongs done to the property, rights or interests of an- other, for which an action might be maintained against the wrong- doer, such action may be brought by the person injured, or, after his death, by his executors or administrators, against such wrongdoer, and, after his death, against his executors or administrators, in the same manner and with the like effect, in all respects, as actions founded upon conti:acts.(M) Sec. 2. But the preceding section shall not extend to actions for slander, for libel, or to actions of assault and battery, or false im- prisonment, nor to actions on the case for injuries to the person of the 315 ; 1 Saund. 216 a, note (1) ; Martin v. BrctdUy, 1 Caines, 124. See, also, Franklins. Low, 1 Jobns. R. 402. But debt lies against the executors of a sheriff, &c.,.upon a judgment ob- tained against the testator for an escape. (q) 2 R. L. 1813, 514, see. 13. 'For the corresponding provision of the Revised Statutes, see 1 R. S. 401 ; 4th ed. 727, 728. (f) The People v. Gibhs and another, Executors, &c., of GiUbs, late Sheriff, &c., deceased, 9 Wend. 29. See, also, McEvers v. Pitkin, late Sheriff, 1 Root, 216. (s) 2 R. S. 114; 4th ed. 299. (<) lb. ■(») 2 R. S. an ; 4th ed; 690. See GamjpbeUv. Renwick, 2 Bradf. Surr. 84, ■WHAT CLAIMS UPON THE DECEASED SURVIVE, ETC. 293 plaintiff, or to tlie person of the testator or intestate of any executor or administrator . (u) Some particular instances, where the executor or administrator is liable with respect to the acts of the deceased, may here be adverted to. It was the law, previous to the adoption, in this state, of the Code of Procedure, in the case of a joint contract, where several contracted, on the same part, if one of the parties died, his executor or administrator was at law discharged from all liability, and the survivor' or survivors alone could be sued.(M;) And, if all the parties were dead, the execu- tor of the last survivor was aloae liable.fa;) But if the contract was several, or joint and several, the executor of the deceased contractor might be sued at law in a separate action -.{y) but he could not be sued jointly with the survivor ; because one was to be charged de honis tes- iaioris, the other de bonis propriis.{z) With regard to the liability in equity of the deceased joint contrac- tor, it was completely settled that, in the. ease of a partnership debt, although at law, upon the death of a partner, the remedy against his executors was extinguished, (inasmuch as a partnership contract was joint ;) yet they might be sued in equity.(a) But though it had long ceased to be disputed, that if the surviving partner proved to be unable to pay the whole debt, the joint creditor might then obtain full satis- faction' in equity from the assets of the deceased partner, yet it was re- gajded as an unsettled point, whether the creditor had any right to resort to the representatives of the deceased partner, so long as there was a surviving solvent partner, or so long as the insolvency of the surviving partner was not established. On the one hand, it has been asserted, that the principle on which the creditor is entitled to relief against the assets of the deceased part- ner, is merely through the medium, of the equities subsisting between the partners themselves, and these equities, in respect of creditors, are, that joint debts shall be satisfied out of the joint estate, and that the separate estates of the partners shall not be liable to the demands of the creditors until the insufficiency or insolvency of the joint estate is established. And, therefore, it has been said, the joint creditor must pursue the surviving partner in the first instance, and shall not be per- mitted to resort to the assets jof the deceased partner, until it is estab- lished that full satisfaction cannot be obtained from the surviving part- ner. On the other hand, it is contended, that, in the consideration of a court of equity, a partnership debt is several as well as joint, and (v) 2 E. S. 448 ; 4th ed. 690. See reTOer's notes, 3 R. & or. St. 2d Appendix, TBI. It has already appeared {Ante, p. 266; see S. L. 1847, cli. 450, sec. 1; S. L. 1849, oh. 256, sec. 1 ; 2 R. S. (4th ed.) 56'f,) that an action may be maintained by the executor or adminis- trator of a deceased person, for his death caused by wrongful act, neglect or default. (w) "Godson V. Good, 2 Marsh. 300, by Gibbs, Ch. J. ; S. 0., 6 Taunt. 594." Colly on Partn., sees. 516, 123 ; Mwrray v. Mumford, 6 Cow. 441 ; Grant v. Shmter, 1 'Wend. 148; 3 Kent Coram. 63. {x) Wms. on Exrs. 1431 ; Colly on Partn., sec. 723. \y\ "May v. Woodward, 1 Freem. 248 ;" 1 Chitty, 37 ; Engs v. Donnithome, 2 Burr. ] 190 ; Grani v. Shiurier, 1 "W«nd. 148, 150. (z) "ffall V. Iluffam, 2 Lev. 228 ; "Wms. 1482." . (a) '*3 Meriv. 619; 4 Mylne & Gi. 109:" 3 Kent Comm. 64; Colly on Partn., book 3,ch. 3, sec 4. 294 WHAT CLAIMS UPON THE DECEASED SURVIVE, ETC. therefore, that the joint creditor may, in the first instance, resort to the assets of the deceased partner, leaving it to the personal representatives of the deceased partner to take proper measures for recovering what, if anything, shall appear upon the partnership accounts to be due from the surviving partner to the estate of the deceased partner. Whatever may have been the conflicting opinions upon this im- portant subject, it is now, it seems, in England, established beyond controversy, that, in the consideration of courts of equity, a partner- ship debt is several as well as joint; and that, upon the death pf a partner, the joint creditor has a right in equity to proceed immediately against the representative of the deceased partner for payment out of his separate estate, without reference to the question, whether the joint estate is solvent or insolvent, or to the state of accounts amongst the partners.(&) And it has been laid down, that this principle extends to every joint contract for a loan of money, giving to the creditor phe benefit of the security of several persons, without any distinction, that the debt must be a mercantile debt incurred by joint traders.(c) " The true doctrine," it was said, " on the subject of obtaining relief in equity, by considering joint contracts as several, appears to be, ttat, Avherever a court of equity sees that, in a contract joint in form, the real intention of the parties was, that it should be joint and severa], it will give effect to such intention. Accordingly, in certain cases, a jctint bond has, in equity, been considered as severaL(d) But it is ncj a rule, that every joint contract shall be considered as several in a cc|urt of equity ; for a joint contract cannot be extended beyond its legal operation, unless the party seeking so to extend it shows some previous equity entitling him to demand a several contract from each of the join|; contractors, or unless there is some ground on which to infer mistake in the nature of the instrilment.(e) In the case of a partnership debt, all the partners have had a benefit from the money advanced, or the , credit given, and the obligation to pay exists independently of any in- strument by which the debt may have been seoured.(ee) Soj where a joint bond has, in equity, been considered as several, there has been a credit previously given to the different persons who have entered into the obligation, and it was not the bond which first created the liability to pay. But where the obligation exists only by virtue of a joint cove- nant or bond, the extent of its operation can be measured only by the (6) Deoaynes v. NoUe, X Meriv. 530 ; S. C, ou Appeal, 2 Russ. & M. 495; Sleech's case, 1 Meriv. 539 ; WUMnson v. Henderson, ] M. & K. 582. See, also, Brown v. WeaOierhj, 12 Sim. 6; Way v. Basselt, 5 Hare, 68; Colly on Partn., sec. 580, and cases cited; Story's Eq. Jut., sec. 616; Story on Partn., sec. 362; 3 Kent Comm. 64. Justice Willianis, in the 4tli edition of his learned work on the law of executors, &o., p. 1483, intimates that this still continues to he regarded as an unsettled point in England. (c) Thorpe v. Jackson, 2 Younge & Coll. 633.. But seo Slater v.Wheder, 9 Sim. 15T; Wms. 1484. (d) ^^ Primrose v. Bromley, 1 Atk. 90; Bishop v. Ohwch, 2 Ves. sen. 100, 311; Bbarev. Gontencin, 1 Bro. Chan. Cas. 21 ; Thomas v. lYazer, 3 Ves, 399 ; Bwn v. Bu/rn, 3 Ves. 513 ; Sx parte Kendall, 11 Ves. 525." (e) " In case of such a mistake, it seems that equity will relieve as well against a auretj as a principal. Bawstone v. Parr, 3 Russ. 424, 539." («e) "2 Meriv. 31." "WHAT CLAIMS VPOIS THE DECEASED SURVIVE, ETC. 295 words in whicli -it is conceived ; and a court of equity cannot give the instrument any other than its legal eSect."{g) " With respect to the right of a surviving co-contractor to enforce contribution from the personal representatives of his deceased com- panion," it was added, " although it cannot be stated as a universal proposition that, in all cases, where two or more jointly employ a third person, there is an implied undertaldng in all to contribute ratably inter se, so as to bind the executors of a deceased co-contractor ; yet, if several persons jointly contract for a chattel, to be made or procured for the common benefit of all — (for instance, the building of a ship or the furnishing of a house) — and as to which the executors of any party, dicing before the work is completed, are by agreement to stand in the pilace of the party dying; in such a case, though the legal remedy of the party employed would be solely against the survivors, yet the law would cer- taiily imply a contract on the part of the deceased co-contractor, that his executors should contribute his proportion of the price of the article to be furnished."(/0 The doctrine that, in the case of the death of a partner, resort may primarily be had in equity for a debt due by the firm to the assets of ths deceased partner, without alleging and proving the bankruptcy or insolvency of the surviving partner, and without reference to the state of the accounts between the partners, has never been adopted by the courts of this state. On the contrary, in Lawrence v. The Trustees of tht Leake and Watts Orphan House,{i) a case turning upon this very point, this doctrine was expressly disavowed by the court of last resort, and in direct conflict with the English decisions, which have been re- ferred to, the rule was laid down, that a creditor of a co-partnership, ,^ one member of which had died, could not sustain a suit in Chancery, against the personal representatives of the deceased partner, without averring and proving that the surviving members were insolvent. • And fm-ther, it was held, that, as the remedy at law survived, the creditor was bound to resort to his legal remedy against the surviving debtors, unless he could show a necessity for coming into a court of equity for relief against the estate of the deceased debtor, notwith- standing the recent decisions to the contrary in the English courts. This was on the ground that such' debt was joint, and not joint and several. In the case of joint and several debtors the rule was other- wise. And therefore, it was concluded, thex a never was any right to relief against the executors of the deceased partner, for the recovery of a debt due by the partnership, either at law or in equity, until the occurrence of the insolvency of the surviving member of the firm.(w) It remains to consider the state of the law on the subject of the en- forcement of partnership contracts after the death of one of the part- ners, since the changes which have been effected by the adoption of the constitution of 1846, and the subsequent enactment of the Code of {g) " Sumner v. PoweU, 2 Meriv. 30 ; 8. 0., afarmed, 1 Turn. &, R. 423 ; Baiostone v. Parr, 3 Buss. 424, 539." (h) "Prior v. Senbraw, 8 M. & "W. 8t3." (i) 2 Denio, 577. (Mj'See, also, Slaiierv. Ca/rroU, 2 Sand£ Ch. Rep. 573. 296 "WHAT CLAIMS UPON THE DECEASED SUEVIYE, ETC. Procedure. By the third section of the sixth article of the constitution, it is provided, that there shall be a Supreme Court, having general juris- diction in law and equity. The preamble to the Code of Procedure re- cites, among the reasons for the adoption of that statute, that it is expe- dient that the distinction between legal and equitable remedies should no longer continue. The sixty-ninth section of the Code declares that the distinction between actions at law and suits in equity, and the forms of all such actions and suits heretofore existing, are abolished. By sec. 118 it is provided, that any person may be made a' defendant in an action who has, or claims an interest in the controversy adverse to t^e plaintiff, or Avho is a necessary party to a complete determination or settlement of the question involved therein. And by sec. 122, me court may determine any controversy between the parties before it, when it can be done without prejudice to the rights of others, or by saving their rights. ¥nder these provisions of the law, it was hell, in Eicart v. Toiunsend,{k) that, in an action on a contract, made by a ;o- partnership during its existence, the personal representatives of a le- ceased partner, may be united as defendants with the surviving pirt- ner. The suit was brought against the surviving partner, and be administrators of the deceased partner, for a breach of a contrlct alleged to have been- made by the firm, and the prayer of the con- plaint was for damages against the defendants $15,000, besides costs. ■ The defendants demurred, on the ground of a misjoinder of parties, n- sisting that the action could be brought against the surviving partier only. And Mr. Justice Edmonds, at the special term of the Supreiie Court, declared his opinion as follows :■ — ' ' \ " Under the old practice, the creditor of a partnership situated aa this is, could not have all the remedy to which he might be entitled, without resorting both to proceedings at law and in equity. " To reach the individual liability of the surviving partner, the resort! was to an action at law, as it was, to reach the partnership property, ' which vested in the surviving partner, and could be reached only through him. " To reach the liability of the deceased partner, resort must be had to an action in equity, against his representatives, in which the sur- viving partner might be made a part};-, because he was interested to keep down the amount of' debts, but no decree could be had against him, because the remedy against him was at law. " This circuity of action and multiplication of remedies grew up gradually and of necessity, to remedy defects in the administration of justice in the courts of law arising from their rules of practice; but there was no good reason for upholding it a moment longer than such necessity existed. " The first step towards removing that necessity was in the union of the law and equity jurisdiction in the same court by the constitution, and the next was in the remodelling of the practice by the Code. Sec- tion 118 of the Code allows any person to be made a defendant who has, or claims, an interest in the controversy adverse to the plaintiff, or who is a necessary party to a complete determination or settlement {k) 6 Howard Prac. Eep. 460. WHAT CLAIMS UPON THE DECEASED SUEVIYE, ETC, 297 of the questions involved therein. And, under it, when a misjoinder of parties is objected, the inquiry must necessarily be, has the party an interest in the controversy adverse to the plaintiff? or does he claim such an interest ?. or is he a necessary party to a complete determina- tion of the questions, whatever they are, which are involved in the controversy ? If either of these questions are answered in the affirma- tive, the person is properly made a party. And the question raised by this demurrer must be tested in this manner, and, being so tested, it becomes at once evident that there is no misjoinder of parties. " If the action is brought to reach the partnership property, the sur- viving partner is a necessary party, and the representatives of the de- ceased partner are properly made parties, because they have an interest in the controversy. "If it is brought to reach the individual liability of the deceased partner, the surviving partner is a proper party, because he is in- terested to keep down the debts, and might be liable to contribute to the estate of his former partner his share of the debt. "If it is brought to enforce the liability, both of the partnership property and of the partners individually, then the surviving partner and the representatives of the deceased are necessary parties, and under sec. -122 of the Code, it Avould seem that the respective rights and lia- bilities of all the parties may be determined in this action. " Be that, however, as it may, I see no objection to the joinder of all these parties in this suit, and I see no difficulty in the way of the courts rendering therein the same judgment that would have been rendered in the two suits — one at law and the other in equity- — ^Avhich were necessary under the old practice."(/cA) And the demurrer was overruled with costs. (kk) Witli all deference it is submitted, that the learned justice has not, in this decision, expressed with strict accuracy the principle upon -which the liability of the surviving partner and of the personal representatives of the deceased partner, respectively, for the debts of the firm, -svere regulated by the la-w of this state, as it stood previously to the adoption of the Code of Procedure. It is erroneous, it is apprehended, to suppose that the rules of law which then prevailed on this subject grew out of any defects in the administration of justice arising from the peculiar distribution of jurisdiction between the courts of law and equity as then constituted. It is true, that the remedy for a debt owing by the partnership was by an action at law against the surviving partner alone, which enabled the plaintiff to reach the partnership property only ; and that, after this remedy has been exhausted, in order to reach the separate property of the deceased partaer in the hands of his personal representa- tives, resort must have been had to a, court of equity. But this was, it is believed, not because the two jurisdictions were separate, nor because of any merely arbitrary rule, pre- scribing the respective remedies to be had in the two several courts, but on principle — be- cause the assets of the firm were alone prunarily liable for the debts of the firm ; and, untU the creditor had exhausted his remedy against those assets, there was not any hability on the part of the executor or administrator of the deceased partner. The rule was well estab- lished, and — notwithstanding the changes in the law which have been made — it is believed, still remains unaltered, that the right of action for a debt due to the firm survived to the sur- viving partner, and he succeeded to the exclusive control of the partnership property, and could alone bring actions for the recovery of the debts of the firm. (See ante, p. 276.) It was regarded as a strange doctrine, then, that the creditor might, in the first instance, resort to the executor of the deceased partner, who never came to the 'possession of the partnership funds. If the executor should be held liable to the action, it was considered it would be lawful for him to receive debts and settle partnership accounts, but he had not, as he has not now, any such authority. A payment to an executor of a deceased partner, is no satisfaction to a surviving partner. Wallace v. Fiizsimmons, 1 Dallas, 250. And, on these grounds expressly it was held, in Grant v. Shurter, (1 "Wend. 148,) that the administrators of a de- 298 WHAT CLAIMS UPON THE DECEASED SURVIVE, ETC. It is beyond all question, tbat tlie executor or administrator of the deceased partner, is interested in tlie event of all claims brought against the partnership. It certainly is contrary to his interest, that ceased partner were not liable in an action on a contract of the partnership. Collyer, in his Treatise upon the Law of Partnership, (edition of 1832, p. 342,) lays it down as the result of the authorities, that ' • upon the death of a partner, the creditor of the firm, unless he holds the joint and several security of the partners, has no immediate claim on the deceased partner's estate, as a separate creditor of that partner ; hut only a claim through the equities of the partners themselves ; which claim may he exercised, in case of the insolvency or insufScienoy of the partnership estate." And in Lawrence v. The Trustees of the Leake and Watts Orphm, Souse, 2 Denio, 511, this doctrine was expressly approved by the Court of Errors. And Porter, Senator, in his opinion in that case, thus declares : — " The law authorizes the survivor to retain possession of all the partnership property, and it gives the creditors of the partnership a preference over individual creditors in their right to satisfaction out of such property. Now, to allow these rules to stand, and yet permit the creditor of the partnership to resort to the assets of the deceased partner, and come in for payment out of those assets, pa/ri passu, with the individual creditors of the estate, seems to me inconsistenft with principle. While the partnership fund is sufBcient to satisfy the claims upon it, it is harassing and unjust to those who succeed to the estate of the deceased partner, to permit the creditors of the estate to seek satisfaction out of that estate ; and while those creditors enjoy a preference over the creditors of the individual partners, in respect to the partnership fund, they should not be permitted to deprive the individual creditors of their preference in regard to individual property." The conclusion, then, is believed to be just, that the peculiar mode of obtaining reUef for debts due by a partnership, of which one of the members was deceased, und,er the system which prevailed in this state previous to the Code, had not its origin in any defects in the administration of justice then existing, but was founded upon an established rule of principle and of justice, that primarily the separate estate of the deceased partner was not hahle for the debts of the partnership. The decision under examination, as is intimated in the text, was probably not intended in any way to vary the eventual liability of the personal representatives of the deceased part ner, from what it would be according to the rules and authorities which have been quoted. The doctrine that the partnership property should first be applied to the payment of the part- nership debts, and that the separate estate of the deceased partner should not be resorted to, for the discharge of the partnership UabiUties, until the joint estate had been exhausted, it was doubtless supposed, would govern the final disposition of the case. But in what way a judg- ment against the surviving partners and the executors of the deceased partners jointly can be made to look into, not only the afiairs of the partnership, but the circumstances of the sepa- rate estate of the deceased partner, and to determine the respective habflities of the parties, and the amount applicable to the payment of the debt out of either or both of the funds, ia, notwithstanding the 122d section of the Code quoted by the learned justice, not perfectly ap- parent. One thing, however, is certain, that by the improvement in the law — if improve- ment it is to be called — the plaintiff saves neither time nor labor. Unless the Code has de- molished aU the rules which have been stated as governing the liability of the different funds to the payment of debts, where one of the members of a partnership has died, the creditor of the partnership, although he may make the executor or administrator of such deceased part- ner, jointly with the surviving partner, a defendant in an action for his debt, must still lirst exhaust the partnership ftmd, before he can resort to the separate estate of the deceased partner. In this effort, the debt may be collected, and the joinder of the executor or ad- ministrator is clearly, then, not of any advantage. If the partnership assets be insufHoient for the payment of the debt, the creditor will then, and not until then, be entitled to resort to the executor or administrator for his share of the separate estate of. the deceased partner. It is not perceived that the remedy of the creditor is, in the smallest degree, faciUtated by the new law or practice. On the contrary, it is apprehended that perplexity and confusion win be the only practical results of the attempt to unite in one action the determination of questions which, in the mature wisdom of courts of law and equity, have always been the subjects of separate judgments. If, however, the decision under examination is to be under- stood as giving the creditor of the partnership an immediate remedy for his debt against the individual estate of the deceased partner, leaving all questions of the eventual relative Ua- bility of the two funds to be settled between the surviving partners and the personal repre- sentatives of the deceased partner ; then the new rule, directly in conflict as it is with the express authorities upon the subject which have been quoted, will be found, it is appre- hended, not to be any improvement upon the previous law, and not only productive of greatly increased litigation in these oases, but in view of the provisions of the statutes pre- WHAT CLAIMS UPON THE DECEASED SURVIVE, ETC. 299 the claimant should recover. If such interest constitutes an interest in the controvers}' adverse to the plaintiff within the meaning of the lan- guage of the Code, the executor or administrator may, without doubt, properly be made a defendant in the action brought for the recovery of the claim. Although he may thus be made a defendant in the action, the estate of the deceased partner in his hands is liable, it is supposed, to answer to the plaintiff for the debt of the partnership only to the extent and in the manner prescribed by the law, as it stood pre- viously to the enactment of the provision in question. The mere per- mission to make the executor or administrator of the deceased partner a defendant in the action for the recovery of the debt of the partner- ship, is probably not to be understood as varying the rights or liabili- ties of the respective parties. The cases of Grant v. Shurter,{J) and Law- rence V. Trustees of the Lealce and Watts Orphan House,{ll) already re- ferred to, have definitively settled the law of this state, that the personal representatives of a deceased partner are not primarily liable for the debts of the partnership, but that the surviving partners are alone so liable ; and that a creditor of the partnership has not any right to relief against the estate of the deceased partner for the debts of the firm, un- less the surviving partner has become insolvent, nor without alleging and proving such insolvency of the surviving partner. And the con- cluding remarks of the learned justice, above quoted, respecting the •enforcement of the liability of the several defendants, doubtless con- templated that the judgment to be recovered in the action, and the rem- edy to be obtained, whether against the partnership property or the in- dividual estate of the deceased partner, were to be governed by the law prescribing the respective liabilities of the parties as thus settled. " In every case where the testator is bound by a covenant, the execu- tor shall be bound by it, if it be not determined by the death of the testator ;(m) that is, unless it is such a covenant as was to be performed by the person of the testator."(?i) " The executor is not only liable upon all covenants by the testator which have been broken in his lifetime, (o) but, moreover, he is answer- able for all breaches in his own time, as far as he has assets ; for the privity of contract of the testator is not determined by his death."(j9) Thus, damages for breach of a covenant for quiet enjoyment, accruing both before and after the death of the covenantor, it has been held, scribing the order for the payment of the debts of»the deceased, and the mode of compelling such payment, presently to be considered, of no practical ulility. The case of Voorhies v. Baxter, (1 Abbott's Prao. Rep. 43,) has come to the notice of the writer while examining the proofs of this chapter. In that case, the Supreme Court at general term, .in the first district, held, that the executors of a deceased member of a firm cannot be joined as defendants with the surviving partners in a suit for a debt due from the partnership, and that the creditor has no right of action against the executors of the deceased, until he has shown insolvency of the survivors. (I) 1 Wend. 148. (U) 2 Denio, 517. Im) "Bro. Covenant, pi. 12 ; Com. Dig. Covenant, ch. 1." (w) ^^Hyde v. Dean of Windsor, Cro. Eliz. 553 ; Bally v. Wells, 3 Wils. 29. See, also, Thwrsden v. Warthen, 2 Bulstr.lSS; Macartney v. BhmdeU, 2 Ridgw. P. 0. 113; Wms. 1487, 488." (o) "Wentw. Off. Ex. 25], 14th ed." (p) " Ooghill V. Freelove, 3 Mod. 326 ;" Wms. 1488. See, also, P. N. B. 145, (E,) note (a). 300 "WHAT CLAIMS TIPON THE DECEASED SURVIVE, ETC. may be recovered in one and the same action against his executor or administrator, {pp) " Again, although a covenant in a lease should be of a nature such as to run with the land, so as to make the assignee of the term liable for a breach of it after the assignment, yet this shall not discharge the executor of the original lessee from a concurrent liability on the cove- nant, as far as he has assets, even although the lessor shall have accepted the assignee as his tenant. " Therefore, where the lessee has assigned the term in his lifetime, the Ipssor may still maintain an action, in the nature of the former action, of covenant against the executor of the lessee, upon an express covenant for payment of rent, even although the lessor has accepted; the assignee for his tenant. And so may the assignee of the reversion, by virtue of the stat. 2 E. S., part 5, oh. 1, title 4, taken from 1 E. L. 1813, ch. 31 ;' 32 H. VIII, ch. 34:.(g;) " ,So, if the executor himself assigns the term, the . lessor may after- wards bring covenant against the executor, notwithstanding an accept- ance of the assignee as tenant. And so also may the assignee of the reversion.(r) " It must be observed, however, that there is a distinction, with respect to this liability, between an express covenant and a mere covenant in Taw ; for no action lies against an executor or administrator upon a cove- nant in law, which is not broken till after the death of the testator.(s) "With respect to the liability of the executor of the lessee to 'an {pp) Bovey v. Newton, 11 Pickering, 421. (5) "Brett V. Gimierland, Cro. Jac. 521, 622; 1 Saund. 241 a, note (5) to Thursiyy. Plant But although the executor of the original lessee will be liable for breaches of covenant, in- curred after an assignment by the testator or by himself it is otherwise where the testator was the assignee of the lessee ; for no action will lie against hira, except in respect of breaphes. ^ in his own time ; and, therefore, all future HabUity may be discharged by assignment over, even to a pauper. Taylor v. Shum, 1 Bos. & Pull 21. And since such a, course is quite Justifiable, morally as well as legally, after an offer to surrender the lease to the landlord, the executor may be guilty of a devastavit in neglecting to adopt it. Bowley v. Adams, 4 M. & Or. 534;" "Wms. 1489. The provisions of the statute are as follows : — Sec. 17. [Sec. 23.] The grantees of any demised lands, tenements or other hereditaments, or of the reversion thereof; the assignee of the lessor of any demise, and the heu-s and per- sonal representatives of the lessor, grantee or assignee, shaU have the same remedies by entry, action, or otherwise, for the non-performance of any agreement contained in the lease so assigned, or for the recovery of any rent or for the doing of any waste, or other cause of forfeiture, as their grantor or lessor had, or might have had, if such reversion had remained, in such lessor or grantor. Sec. 18. [Sec. 24.] The lessees of any lands, their assigns or personal representatives, shall have the same remedy by action or otherwise, ag:ainst the lessor, his grantees, assignees, or his or their representatives, for the breach of any covenant or agreement in such lease con- tained, as such lessee might have had against his immediate lessor, except covenants against incumbrances, or relating to the title or possession of the premises demised. Sec. 19. [Sec. 25.] The provisions of the two last sections shall extend as well to grants or leases in fee, reserving rents, as to leases for life and for years. {r) "BeUierv. Casia/rd, 1 Sid. 266; & C, 1 Lev. 127; Coghiav. Freelove, 3 Mod. 325. It should seem, that if the lessor proceeds ' against the executor, and recovers damages for a breach of the covenant after assignment, the executor may have an action on the case against the assignee, for having neglected to perform the covenant, whereby the executor sustained damage. Burnett v. Lynch, 5 B. & G. 589." (s) "Swan V. Siransham,'DyeT, 257 a; Bragg v. Wiseman, 1 Brownl. 22 ; Proctor v. Johnson, 2 Brownl. 214; Newton, v. Osborn, Style, 387; Porter v. Swetnam, Style, 407; Netherton v. Jesmp, Holt, 412 ; Andrew v. Pearce, 1 New Rep. 158 ; Touchst. 160 ; Com. Dig. Covenant (0. 1). See, also, Adams v. Gibney, 6 Eing. 656; Wms. 1489, 1490. WHAT CLAIMS UPON THE DECEASED SURVIVE, ETC. 301 action, in the nature of tlie former action, of debt for rent accrued after the death of the testator, it is fully established, that the executor will be liable as long as the lease continues, and as far as he has assets, as well in the form of an action of debt as in covenant, notwithstanding the lessee assigned the term before his death, or the executor has done so since.(<) But if the lessor has accepted the assignee as his tenant, then no action of debt will lie against the executor for rent accrued since the assignment, although, as it just appeared, an action in covenant may be maintained on an express covenant for its payment during the continuance of the lease, (m) • " This may be the proper place to consider the personal respon- sibility of the executor for the rent incurred under a demise to his testator. " If the whole rent incurs in the lifetime of the testator, the action to recover it from the executor must be brought against him in his re- presentative character.(f) "But in an action, in the nature of the former action, of debt for rent incurred after the death of the lessee, if the executor or administra- tor enters upon the demised premises, or, which is the same thing, re- ceives the rents and profits, the lessor has his election, either to sue him as executor or administrator, or to charge him personally as assignee in respect of the perception of the profits, (w) Therefore, if the action be brought in debt, the lessor may either sue the defendant as executor in the detinet,(x) or in the debet and detinet,(y) as assignee of the term.(2) So, in covenant, the lessor has his election, either to charge (<) " It is trae, that Lord Coko, in Walker's case, 3 Co. 24 a, says that ' it was adjudged in Overion v. Sydhail, that if the executor of a lessee for years assigns over his interest, an action of debt does not lie against him for rent due after the assignment ; and that, if lessee for years assigns over his interest and dies, the" executor shall not be charged for rent due after his death ; for, by the death of the lessee, the personal privity of contract as to the action of debt in both cases was determined.' But this is contrary to all the subsequent authorities. See Ooghill y. Fredove, .S Mod. 325; Pitcher v. Tovey, 4 Mod. 16: 1 Saund. 241 b, note (5) ;" Wms. 1490. («) Wms. 1490, 1491. (v) Wms. 1491; 1 Roll. Abr. 603 (S), pi. 9; Friuin v. Porter, 1 Sid. 3T9. . (w) Boullon V. Canon, Freem. 337 ; S. G., PoUexf. 125; 1 Saund. 1, note (1) to Jevijns \. Sarridge. (x) "jSoyslon v. Gordrye, Aleyn. 42 ; Bbpe v. Bague, 3 East, 2 " ,(?/,) "Margrave's case, 5 Co. 31; Rich v. Frank, Cro. Jao. 238; Galyn v. JosVyn, Aleyn. 34; 1 Saund. 1, note 1. So, if the executor enters, he may be charged in the debet and detinet for the current half-year's rent which commenced bjpfore the testator died. Tlie Bailiffs of Ipswich V. Martin, Cro. Jao. 411 ; Jevens v. Ra/rridge, 1 Saund. 1. But if one sum of money is due for arrears of rent whick hecame due in the hfetime of the testator, and another sum for arrears due in the executor's own time, the lessor cannot in one action charge the execu- tor in the detinet for the one part, and in the debet and detinet for the other ; for then two ditferent judgments would be necessary. Sailer v. Godbold, 3 Lev. 14. But one action may be brought for both sums in the detinet only. Aylmer v. Hide, 13 Geo. II ; B. R. M. S. Selw. N. P. 610, 6th ed. If the lessor in such case will not waive his right of demanding satisfac- tion out of the estate of the executor, he must bring two actions." (z) " In such cases, it appears to have been the praotioe to name the defendant executor, and to state in the declaration, in the debet and detinet, the demise to the deceased, his death, the grant of administration to the defendant, his entry into the demised premises, and the subsequent accruing of rent. See the entry in Jevens v. Earridge, 1 Saund. 1, and the case of Galy v. JosUn, Aleyn. 34. But it should seem sufBcient to charge the defendant in • the debet and detinet as assignee generally, without naming him executor. See LyddaU v. Dunlapp, 1 Wils. 4, 5." See, also, In the Matter of Galloway, 21 "Wend. 32. 302 "WHAT CLAIMS UPON THE DECEASED SUETIVE, ETC. tlie executor as executor,(a.) or as assignee, without naming him execu- tor, stating generally, in stating the cause of action, that the estate of ■ the lessee m the premises lawfully came to the defendant. "(5) If the executor or administrator have no assets, or the land is in truth, not worth the sum due, he may show those facts in defence* prima fcicis, however, the land is deemed worth more than the sum de- manded.(Z'6) And being personally liable, the executor or administra- tor, in a proper case, may be proceeded against by attachment, under the act relative to absconding, concealed and non-resident debtors.(M) If the executor or adfninistrator do not enter upon the demised pre- mises, the claim of the lessor cpmes among the debts of the fourth class prescribed by the statute, (c) and is to be paid in full or ^ro rata with other specialty or simple contract debts, according to the suffi- ciency of the 'assets. If the executor does not enter, (cc) he is still chargeable, it is said aa executor in the detinet, because he cannot so waive the term as not to be liable for the rent as far as he has assets. (cZ) " If the purchaser of a real estate dies, without having paid the pur- chase money, his heir at law, or the devisee of the land purchased, will be entitled to have the estate paid for by the executor or adminigtra- '•, tor.(e) And if the personal estate cannot be got in, and the heir or devisee pays for the land out of his own pocket, he may afterwards call upon the personal representatives to reimburse him.(ee) So, if the personal estate is insufficient to perform the contract, and the agree- ment is on that account rescinded, yet the'heir or devisee will, it should seem, be entitled to the personalty so far as it goes. And it has been decided, that if, by reason of the complication of the testator's affairs, the purchase money cannot be immediatelj'- paid, and the vendor for that reason rescinds the contract, yet, on the coming in of the assets, the devisee, of the estate contracted for, may compel the executor to lay out the purchase money in the purchase of other estates for ids b.enefit."(£t) Where, however, the balance remaining unpaid on a purchase of (a) "BucMey v. Pirk, 1 Salk. 31V." (61 " Tilney v. Norris, 1 Lord Raym. 553 ; 8. C, 1 Salk. 309 : Garth. 519 : Bucklojv. Pirk 1 Salic, ill; 1 Saimd. 1, note (1)." (bb) In the Matte?- of (kUbway, 21 Wend, 32. " (c) See ante, p. 284. {cc) " There seems to be some doubt, whether this distinction, as to the entry of the execu- tor, has not, in a great measure, ceased to exist, since the decision of Williams v. Posangvet, 1 Brod. &, B, 238. That case decided, (overruling Eaton v. Jacques, Dougl. 455,) that the assignee, in fact, of a lease, may be charged as assignee on a covenant contained in it for the payment of rent, though he has never occupied,«Dr actually become possessed. And it does not appear altogether clear, whether it is not a consequence, that an executor may likewise be charged, as a.ssignee in law, without entry. See the observation of Parke, B., at the con- clusion of his Judgment, in Nation v. Tozer, I Crompt. M. & R. 116; 4 Tyrwh. 565." {d) Rowsev. Webster, Yelv. 103; Eelier v. Casehert, 1 Lev. 127. And see Wms. 1493; Wollaston v. JTakewiU, 3 M. & Gr. 297 ; S. G, 3 Scott N. R. 593 ; Green v. Lord ListoweO, 2 Irish Law Rep. 384 ; Ackland v. Fring, 2 M & Gr. 937 ; Wms. on Exts. 1493, note (6). (e) "Milner v. Mills, Mosely, 123 ; Broome v. Monde, 10 Ves. 597 " . (ee) " ] Ves. 614, 615 ; 1 Sugd. T. & P. 1 80, 9th ed. See Lord v. Lord, 1 Sim. 505." {g) "WJuttalcer v. Whiitajcer. 4 Bro. Chanc. Cas. 31 ; Broome v. Monde. 10 Tes 597; 1 Sugd. V. & P. 180, 9th ed. ;" Wms. 1499. WHAT CLAIMS UPON THE DECEASED SUllYlVB, ETC. 80S real estate is secured by a mortgage of such real estate, this rule is probably abrogated by the Kevised Statutes. The fifth title of the first chapter of the second part of the Revised Statutes, provides as fol- lows : — Sec. 4. Whenever any real estate, subject to a mortgage executed by any ancestor or testator, shall descend to an heir, or pitss to a de- visee, such heir or devisee shall satisfy and discharge such mortgage out of his own property, without resorting to the executor or adminis- trator of his ancestor, unless there be an express direction in the will of such testator, that such mortgage be otherwise paid.(/i) This provision applies to cases of absolute intestacy as well as to those cases in Avhich the decedent has disposed of his property, or a part of it, by will.(i) And where, upon the purchase of certain real estate, the testator, as a part of the consideration, assumed the payment of a mortgage already upon the premises, and upon other property, upon a question between the creditor and the executors of the testator, it was held that, under this provision of the statute, the premises included in the mortgage were the primary fund for the satisfaction of the mortgage debt, and that the creditor could not resort to the personal property for the pay- ment of the mortgage debt, until the deficiency, if any, for which the personal estate might be liable, was ascertained, by the result of a suit for the foreclosure of the mortgage.(M) But where there is simply a contract for the purchase of land, left in- complete at the death of the decedent, the rule above laid down will prevail, and the personal property will be held liable to complete the ' purchase for the benefit of the heir or devisee. And upon a contract by the decedent for the purchase of land, where the land has not been conveyed to him, nor the purchase money paid, the land contracted for is, in equity, considered as real estate, and as belonging to the heirs of the decedent. And the unpaid purchase money is primarily charge- able upon his personal estate, and is to be paid by his executors or ad- ministrators, for the benefit of such heirs.(/(;) " But if a title cannot be made, or there was not a perfect contract, or the court should think the contract ought not to be executed, in all these cases there is no conversion of real estate into personal, in con- sideration of the court, upon which the right of the executor on the the one hand, and of the heir or devisee on the other, depends. And, therefore, if the vendor dies, the estate will go to the heir at law of the vendor, in the same manner as if no contract had been entered into ;(Z) and the heir or devisee of the purchaser will not be entitled to the money agreed to be paid for the lands, or to have any other estate bought for him.(m) The court cannot speculate upon what the de- (ft) 1 E. S. H9 ; 4th ed. (2d vol.) 156. (i) House V. Horise, 10 Paige, 158, 164. See, also, Johnson v. Corbett, 11 Paige, 265. (m) Salsey v. Reed, 9 Paige, 446. See, also, Molkm v. Griffith, 3 Paige, 402. (k) Johnson v. Gorbeii, 11 Paige, 265. (l) "Lacon v. Mertins, 3 Atk. 1; Attorney- Gene7'al v. Pay, 1 Tes. sen. 218 ; Buclcmaster v. Marrop, 7 Ves. 341. See, also, Johnson v. Le Gajrd, 1 Turn. & Euss. 281." (m) "Green v. Smith, 1 Atk. 573 ; Broome v. Monck, 10 Ves. 597." 304 "WHAT CLAIMS UPON THE DECEASED SURVIVE, ETC. ceased party wotOd or would not liave done ; but in these cases the in- quiry must be, whetlier at his death a contract existed by -which he was bound, and which he would be compelled to perform. That alone can give to the heir of the purchaser a right to call for the personal estate to be applied, or to the personal representative of the vendor, a right to call upon his heir.(n) " Where a specific legacy is pledged or charged by the testator, the specific legatee is entitled to have his legacy redeemed or exonerated by the executor ; and if the executor fails to perform that duty, the specific legatee is entitled to compensation to the> amount of his legacy out of the general assets of the testa;tor.(o) " Therefore, if a legacy be of a silver cup or a jewel, and it be in pledge at the testator's death, the legatee has a right to call upon the executor to redeem it, and to deliver it to him.(^) " There has already been occasion to show, that on the death of the master, the agreement for service on the part of the apprentice is at an end.(^) And it seems equally Avell established, that the executors of the master are discharged from all agreements and covenants /or the in- simction of the apprentice ; for these are considered as personal to the testator, and determined by his death.(r) But the covenant on the part of the master for maintenance of the apprentice stUl continues in force ;(s) and, therefore, the executor is liable in an action of covenant, as far as he has assets, if he neglects to maintain him.(i!) " With respect to debts which a wife contracted while single, and , which remained due at the time of the marriage, it is clear that the husband is liable, as long as both parties are alive. But this liability which originated in the marriage, ceases with it. And, therefore, upon • the death of the husband before the wife, and before payment, the debts survive against her, and executor of the husband is discharged from them.(M) " Again, if the husband survives the wife, he will not be individually responsible for her debts contracted before marriage, however large a fortune he may have received with her.(w) Nevertheless, as her ad- ministrator, he will be liable to answer for them, to the extent of her assets."(w) If the husband do not administer, however, he is presumed to have [n) " 1 Sugd. V. & P. 189, 9th ed. ;" Wms. 1500. (o) "Knight v. Dmis, 3 M. & K. 358." (p) "Swinb., part 1, sec. 20, pi. 18." See, also, Stewart v. Denton, 4 Dougl. 219; S. C, 2 Chitt. Rep. 456 ; Marshall v. Holloway, 5 Sim. 196 ; Wms. 1500. (q) Ante, pp. 217, 218. (r) R. V. Peck, 1 Salic. 66 ; Baxter v. Bvrfield, 1 Bott. P. L. pi. 696, 6tli ed, ; S. C, 2 Stra. 1266; WacUiWorthv. Guy, 1 Keb. 820; S. C, I.Sid. 216. The decision in Walker y. Bud, 1 Lev. m, was contra; but the court denied this case in Baatm- v. Bwfield, 2 Stra^ 1267." (s) "R. V. Peck, 1 SaJk. 66; S. G., nomine R. v. Rett, 1 Show, 405; Baxter v. Bv/rfieU, 1 Bott. P. L. pi. 696, 6th ed. ; & C, 2 Stra. 1266; Soam v. Bowden, Finch. Rep. 396." (t) Wms. on Exrs. 1501. (u) "Woodman Y. Chapman, 1 Campb. 189;'' Chapliney. Moore, 1 Monr. Rep. 175; Mdtr lory T. Vanderheyden, 3 Barb. Ch. Rep. 9. Iv) Wentw. Oif. Ex. 369, 14th ed. (w) " Ibid. 370 ; Heard v. Stanford, Cas. Temp. Talb. 173; S. C, 3 P. Wms. 409 ;" Wms 1503. WHAT CLAIMS UPON THE DECEASED SURVIVE, ETC. 305 assets in his hands sufficient to satisfy her debts, and is liable therefor. This is expressly declared by statute,(a;) which further provides that, if the husband shall die, leaving any assets of his wife unadministered, they shall pass to his executors or administrators as part of his per- sonal estate, but shall be liable for the wife's debts to her creditors, in preference to the creditors of the husband. And the separate estate of the wife, in the hands of her personal re- presentatives, whoever they may be, is liable for the debts which she eoMracted before her marriage.(y) " With respect to debts contracted by a wife after marriage, as far as a supply of necessaries, it shall be presumed, as long as he lives, that she had the authority of the husband, as-his agent, to procure them for ■ her own use. He may, consequently, be compelled to pay for them, and so may his executors, if he has assets. But the authority will be revoked by the death of the husband ; and, therefore, his executor is not liable for necessaries supplied to the wife after the decease of the husband, although the fact of his being dead were unknown at the time the necessaries were provided.(2!) " It may be observed that, if a man performs services for the testa- tor, as if a stockbroker transacts all the money concerns of the deceased, without any view to a reward, but in the expectation of a legacy, he cannot set up any demand for such services against the executor or administrator.(a) Where, however, a surgeon forbore to send in his bill for medicines and attendance to a deceased |tatient in her lifetime, under the expectation of a legacy ; and on her death, finding she had left him nothing, he made a claim on her executors ; it was held that he was entitled to recover, no proof having been given of any understanding between the parties that he was to be paid only by a legacy."(&) But where one has served another in expectation of a testamentary provision, and the latter devises to him a portion of his property, he cannot maintain a suit against the executors for compensation for the services rendered.(c) " As a court of equity will not, inter vivos, compel a party to com- plete his gift, so it will not compel the executor to complete the gift of the testator. Therefore, an act of bounty, which has not been per- fected by the testator, is of no avail against his executor.(c?) " If a man enters into a continuing guaranty and dies, his executor, it seems, is not liable upon it for advances made after the testator's death, which operates as a revocation."(e) If, when a, bill of exchange becomes due, and is dishonored, the (a) 2 R. S. tS ; 4th ed. 259, sec. 29 ; recited at length, ante, p. 210. (yi McKay v. Atten, 6 Yerg. Rep. 44; Mailory v. Vanderheyden, 3 Barb. Ch. Rep. 9, 23. (z) "Blades v. Free, 9 B. & C. IBI;" Wms. 1503, 1504. (a) "Osbom v Guy's Hospital, 2 Stra. 728 ; Le Sage v. Coussmdker, 1 Esp. 188." (6) "Baxter v. Gray, 3 M. & Gr. 171;" Wms. on Exra. 1504. , (c) Eakm v. Benton, 2 Hill, 576. (d) "Hooper v. Goodwin, 1 Swanat. 485 ; Goiteen v. Missing, 1 Madd. 176; Meek v. EeUle- weU, 1 Phill. Ch. C. 342 ; GaUaghan v. Gallaghan, 8 CI. & F. 374 ; Searle v. Laws, 1 5 Sim. 95 ; Dillon V. Goppin, 4 M. & Cr. 647 ; Wa/rd v. Audland, 8 Beav. 201. An executor may be compelled to execute an agreement by the testator to grant an annuity. Nield y Smith. 14 Ves. 491 ;" Wms. 1505. (e) "Smith's Comm. L. 425, 4th edition ;" Wms. 1606. , 20 g06 LIABILITY OP THE EXECUTOR OE ADMINISTRATOR, ETC. drawer or indorser is dead, notice of the dishonor ought to be given t» his personal representative.(ee) Where the drawee, acceptor, or maker, is dead, the bill or note must be presented to his executors or adminis- trators,(/) unless where the bill is made payable and is presented at a particular place, in which case it is not necessary to present it also at the house of the executor or administrator.(^ In case there is no re- presentative, the holder should demand payment at the house of the deceased.(^) Where a note fell due the 22d of December, and the in- dorser being absent on a voyage for the recovery of his health, died at sea on the 12th of December, but his death was not known to the holders until March following, and the will was not proved, nor lettera testamentary granted until April following, it was held, that notice of the non-payment having been left at the time, at the dwelling-house of the indorser, his last place of residence in New York, and also sent by • post to his family, who had shortly before removed intO' the country, it was suf&cient to support an action against the executors of the in- dorser, without showing any notice to- them of the non-payment.(^j) Of the Liability of an Executor or Administrator on Ma own Contracts. It is now proposed to investigate the personal responsibility of an executor or administrator, arising from his own contracts. A promise by an executor or administrator to pay a debt of the testator, or to answer damages, will not malce him personally liable, unless there be a sufficient consideration to support the promise. For a bare promise by the executor does not make him liable out of his own estate, but he is still chargeable only as executor, and to the extent of the assets in his hands, in the same manner as he would have been had no such promise been made.(A) And by the Statute of Erauds, re-enacted substantially in this state,(/iA) the executor or admin- istrator will not be liable, unless the promise is in writing. It is clear, however, that although the promise be in writing, it is of no more effect since the statute, than before, unless it be by deed, or there be a good consideration for it.(i) Hence, since the statute, there are two things necessary for the validity of the promise of the executor or ad- ministrafor to pay the debt of the testator, or answer damages, out of his own estate. 1st. The common law requires that there should be a sufficient consideration to support the promise ;. 2d. The statute adds a still further requisite, that the promise should be in writing.(w) It is, (ee) Chitty on Bffls, 369, 8th ed.; Eoscoe on Bills,. 199 ; Byles on Bills, 216, 5th ed. See, also, Oriental Bank v. Blake, AdmW, 22 Pickering, 206. (f) Rosooe on Bills, 147. ' ' Iff) Fhilpott V. Bryant, 3 Carr. & P. 244. ig) Rosooe on Bills, 147; Wms. 1714^15. (gg) Merchant's Bank v. Birch, 17 Johns. Rep, 26. See, also,Bayley, 418, Ames' ed.; Kos- ooe on Bills, note 44. . (ft) "Beech v. Kennegal, 1 Yes. sen. 126." (M) See post, p. 309. (i) " The statute has made no alteration in the pleading, and consequently, it does not ap- • pear upon the declaration, whether there was a promise in writing or not. It is a matter of evidence only. Anon., 2 Salk. 519; Williams v. Leper, 3 Burr. 1890, by Yates, J." (ii) "Rann v. Hughes, 4 Bro. P. 0. 27, Toml. ed. ; S. G., 1 T. R. 350, note (a); Bawkes v. Saunders, Cowp. 289 ; FhOpot v. Briant, 4 Bingh. 117 ; S. G., 1 M. & P. 754. But see Eer- lerUr. Bourn, 1 Bro. P. C. 365 ; Toml. ed.!' LIABILITY OF THE EXECUTOR OR ADMINISTRATOR, ETC. 307 therefore, expedient to examine, in the first place, -what is a valid con- sideration for a promise by an executor or administrator to charge him de bonis propriis ; and then to inqaire what is a reduction of the pro- mise into writing, sufficient to satisfy the Statute of Frauds.(j) 1st. What is a valid consideration. K a creditor, at the request of an executor, forbears to sue him, that was formerly considered a suffi- cient consideration to charge him de bonis propriis^ whether he had assets or not at the time of the promise ; and, therefore, it was not ne- cessary to aver in the declaration that he had assets. As if_ A., to whom the testator was indebted, came to the executor, and said that he intended to. sue him for the debt, -^fhereupon the executor promised, in consideration that the plaintiff would forbear him for a reasonable time, to pay him, and A. accordingly forbore to sue him for a reason- able time, that was a good consideration to charge the defendant, in an action upon the case, out of his own estate, without assets ; for by this promise it was intended as well to forbear to sue the executor, as to forbear the debt ; and a forbearance of a suit, it was held, was a good consideration, without assets, at the time of the promise, (jj)') So if an executor was indebted to J. S. in 100?., who demanded the money, the executor was chargeable only in respect of assets, and not otherwise ; but if he promised to pay the debt at a future day, it became his own debt, and to be satisfied out of his own estate.(Jc) So B. having died indebted to G. for work and labor done, his executors^igned the -ibllowing memorandum on the back of G.'s account : " Mr G. having consented to wait for the payment of the within account, we, as the executors of B., engage to pay Mr. G. interest for the same, at bl. per cent., until the same is settled." And it was held, that the executors were personally liable to pay the debt and interest.(M) Accordingly, in a modern case,(Z) two executors gave a promissory note to the plain- tiff in the following words, " As executors to the late T. T., we sever- ally and jointly promise to pay to N. C. the sum of 2001., on demand, with lawful interest for the same :" And the Court of 0. B. held that they were personally 'liable upon the instrument, upon the ground that the promise, from the circumstance of interest being added, neces- sarily imported a payment at a future day ; and an executor, promising to pay a debt at a future day, makes the debt his own.(m) ij) See Wms. on Bxrg. 1512. (jj) Johnson v. Whiichcoti, 1 Roll. Abr. 24. tit. Action sur Case (V) pi. 33, upon a de- murrer, where the defenda~nt pleaded that he had no assets when the promise waa made. It is in said in Bane's Case, (9 Co. 94 a,) that if there be no assets, it sliall lie given in evidence : but this opinion has been overruled since. See, also, Gardener v. Fenner, 1 RoU. Abr. 15, tit Action sur Case, (S) pi. 3 ; Chcmbea'S v. Leiiersage, Cro. Eliz. 644 ; Hawes v. Smith, 2 Lev. 122 ; Fish v. Bicha/rdson, Telv. 55, 56 ; S, G., Cro. Jae. 41 ; Davis v. Reyner, 2 Lev. 3 ; S. 0. nomine Davis v. Wright, 1 Ventr. 1 20 ; 2 Keb. 758 ; Deeks v. Slrutt, 5 T. R. 690. See infra, pt. 5, bk. 2, ch. 1. See 2 Saund. 131, c. note to Ba/rber v. Fox; Scott v. Stevens, 1 Sid. 89. See "Wms. on Exrs. 15 1 3-14. (i) Goring v. Goring, Telv. 11. See Reech v. Kennegal, 1 Tea. sen. 126. (kk) Bradly v. ffeaih, 3 Sim. 543. (Ij Ohilds V. Monins, 2 Brod. & Bing. 460 ; S. G., 5 Moore, 281. (m) See, also, Ridout v. Bristow, 1 Or. & J. 231 ; Ten Eych v. Vanderpoel, 8 Johns. R.. 120 ; Bonoerlank v. Monteiro, 4 Taunt. 844. Where a bill is indorsed to certain persons as exeoutors, and they again indorse it, they become personally liable : per Buller, J., King v. Thorn, 1 T. R. 489. See Wms. on Exrs. 1516. 308 LIABILITY OP THE EXECUTOR OR ADMINISTRATOR, ETC. In the case of The Bank of Troy y. Topping, (n) however, it was held that forbearance as the consideration of a promissory note given by administrators must be affirmatively shown, and that the mere fact that the note was payable at a future day — sixty days after date — would not authorize an inference that forbearance was the consideration, nor be sufficient of itself to charge the administrators personally with the debt. In that case, the intestate, at the time of his death, was indebted to the Bank of Troy on a promissory note made by him, and indorsed by another person, for his accommodation, for $5,000. When that note fell due, the defendants paid $1,000,. and gave a new note, with the same indorser, payable sixty days after date, for the balance, and signed as follows, "Margaret Topping, administratrix; John Holme, administrator to the estate of John Topping, deceased." It was on a renewal note of this description that the action was brought, and the court seem to have arrived at the following conclusions : That the pro- mise of an executor or administrator, like every other valid promise, requires a sufficient consideration to support it ; that the promise of an executor or administrator to pay the debt of his testator or intestate, in order to bind him personally, must be in writing, and founded upon a good consideration ; that assets in the hands of an executor or ad- ministrator constitute a sufficient consideration to support the promise ; that forbearance to sue is also a good and sufficient consideration, but that such consideration must be shown, and the court could not inter it from the fact that the note was payable sixty days after date. This was upon the ground that a promissory note given in this state, for a simple contract debt, does not absolutely discharge such debt; the creditor may still prosecute upon the original consideration, and may recover upon producing and cancelling the note. In the case under consideration the plaintiffs losf nothing by taking the defendants' notes for the note of their intestate ; they might at any time have prosecuted the defendants as administrators for the money lent to their intestate, and recovered judgment, and thus have obtained any preference which the law would then have given them. And with respect to assets as a consideration, as a promissory note imports a consideration, and assets ■constituted a good consideration, the note in question was prima facie evidence of assets in the hands of the defendants sufficient to pay it; but that it was competent for them to rebut that presumption, by show- ing affirmatively that they had no assets, and of course that there was not any consideration to support the note ; and that, in such case, the ■onus prohandi rests upon the defendan-t. And as to the evidence to establish a deficiency of assets, the court held that proof of proceedings had before a surrogate, under the statute for the sale oiall the realestai^ of the testator or intestate, for the payment of his debts, a sale had in pursuance thereof, and a distribution of the proceeds among the credi- tors, is not competent evidence to establish the fact that the executor or administrator ha,d fully administered, and had no assets belonging to the estate. It remains to consider 2dly, "What is a sufficient reduction into writing of the promise of an executor or administrator. The fourth («) 9 Wencl. 2'?3;J3 "Wend. BST. LIABILITY OF THE EXECUTOR OR ADlIEflSTRATOR, ETC. 309 section of the Statute of Frauds (29 Car. II, c. 3) enacts, {inter alia,) "that no action should be brought, whereby to charge any executor or administrator, upon any special promise to answer damages out of his own estate, or whereby to charge the defendant, upon any special pro- mise to answer for the debt, default, or miscarriage of another person, &c., &c., unless the agreement upon which such action shall be brought, or some memorandum or note thereof, shall be in writing, and signed by the party to be charged therewith, or some other person thereunto by him lawfully authorized." The statute of this state which, in this particular, substantially fol- lows the fourth section of the Statute of Frauds, enacts as follows : Sec. 1. No executor or administrator shall be chargeable upon any special promise to answer damages, or to pay the debts of the testator or intestate out of his own estate, unless the agreement for that purpose, or some memorandum or note thereof be in writing, and signed by such executor or -administrator, or by some other person by him thereunto specially authorized.(o) The word " agreement" used in this section means the consideration of the promise :(p) and, therefore, it was held in the case of Wain v. Warlters,(ci) that the consideration of the promise, as well as the promise itself, must be in writing, otherwise it is void. This doctrine was very much doubted in -several subsequent cases, but has been fully estab- lished by the more recent decisions, (r) It is, however, sufficient, if the consideration can be gathered from the whole tenor of the writing ; and it is not necessary that it should be stated on the face of it in express terms."(s) With respect to the liability of an executor or administrator, upon a submission to arbitration of a claim upon him as the representative of the deceased, it has -been held, that a note, given by executors by way of submission to arbitration, is not binding, unless there were assets in their hands. When a submission has been made by iond, the executor is liable, not only because a seal imports a consideration, — for a promis- sory note imports a consideration also — but also because, when a person has executed an instrument under seal, he shall not be permitted to disprove the consideration. Both the bond and note import assets, and of course a sufficient consideration: the consideration of the bond can- not be explained; that of the note may, as between the original parties and all parties having notice o# the consideration. (<) It may properly be suggested, that the principle's and rules of law which ha-»e thus been stated, with respect to the liability of an execu- tor or administrator on promises to pay the debts of his testator or in- testate, have probably not any or but little application under the system (o) 2 R. S. 113; 4th ed. 298.. (p) " 1 Saund. 211, note (2)." {q) 5 East, 10. See Smith's Leading Cases. (r Saunders v. Wakefield, 4 Barn. & Aid. 695; Jenkins y. Reynolds, 3 Brod. & Bingh. 14 Morleyv. BootKby, 3 Bingh. 107. (s) '• Stadl V. Lai, 9 East, 348 ; S. 0., 1 Camp. 242 ; Bateman v. Phillips, 15 East. 227 Morris V. Stacey, Holt. N. P. 0. 153 ; Russell y.Mosdey. 3 Brod. & Bing. 211 ; S. C, 6 Moore] 621 ; Stead v. Uddarri, 1 Bing. 196 ; S. 0., 8 Moore, 2'; 1 Saund." 211, note (d); "Wms. 1519. (i) Ten, Eyck v. Vanderpoel, 8 Johns. Rep. 1 20 : Shoonmaker v. He Witt, 17 Id. 304 Bank of Troy v. Topping, 9 Wendell, 273. See Wms. on Exrs. 1519 ei seq. 310 lilAEILITT OP THE EXECUTOR OR ADMINISTRATOR, ETC. of administration prescribed by the Revised Statutes and now in force in this State. They grew out of, and were adapted, and were essential to the system of preferential administration which formerly prevailed, and which was superseded by the revision of the laws' of 1830. Under that system, if one of several creditors of equal degree sued the execu- tor or administrator, and obtained judgment against him, such creditor must have been satisfied before the rest ; and if one creditor of the de- ceased commenced an action against the executor or administrator, of which he had notice, he was restrained from making a voluntary pay- ment to any other creditor of equal degree.(M) If, therefore, the execu- tor or administrator having assets, by any promise to or agreement with the creditor delayed his proceedings, and thereby enabled other credi-. tors to obtain a precedence in payment out of the assets, by judgment and execution, the executor or administrator was held to have assumed the debt, and to have become personally liable for its .payment; and the Statute of Frauds defined some of the requisites to establish such lia- ' ■ bility. The Revised Statutes having abolished all preferences, except in favor of debts due the United States, taxes and judgments, and pro- vided for the payment of specialty and simple contract debts, pro rata, out of the assets, in case of deficiency the creditor cannot, by any pro- mise or agreement of the executor or administrator, be prejudiced. Neither assets nor forbearance would now, it is presumed, be sufficient to sustain an action on a promise of the executor or administrator, be- cause the plaintiff's share of the assets would be the same either with or without the promise ; and as to forbearance, where the claim has once been presented, the creditor's share could not be affected by that, nor would it, as will presently appear, delay the period of payment. "With respect to the lia;bility of an executor or administrator carry-; ing on the trade of the deceased, the general principle is that a trade is not transmissible, but is put an end to by the death of the trader: Ex- ecutors, therefore, have no authority in law to carry on the trade of their testator, and if they do so, unless under the protection of a court of equity, they run great risk, even although the will contains a direc- tion that they sh'ould continue the business of the deceased. (i?) The case of an executor or administrator, in this respect, is very hard : For, if the trade be beneficial, the profits are applicable to the purposes of the trust, and the executor or administrator derives no personal benefit from the success : If, on the contrary, tTie trade prove a losing concern, the executor, on failure of assets, will be personally responsible for the debts contracted in the business since the testator's death, to'the extent of all his own property ; also, in his person ; and he may be proceeded against as a bankrupt, though he is but a trustee.(w) Accordingly, in a case(w) where the executors of a deceased partner continued his share of the partnership property in trade for the benefit of his infant daugh- ter, the Court of K. B. held that they were liable upon a bill drawn for the accommodation of the partnership, and paid in. discharge of a part- (») See ■ffms. on Exrs. 8S5, 888. (v) "Barker v. Barker, 1 T. R. 295 ; Ex parte Garland, 10 Ves. 119." (to) Ex parte Ga/rland, 10 Ves. 119; Ex parte Richardson. 1 Buck, 209." See, also, Case V. Abeel, 1 Paige, 393 ; Alsop v. Mather, 8 Conn. 684. (w) " Wighiman v. Townroe, 1 M. S; S. 412. See Lmy v. Walrond, 3 Bing. N. 0. 841." 'COLLECTION OF JUDGMENTS AGAINST DECEASED, ETC. 311 Bership debt; although their names were not added to the firm, but the trade was carried on by the other partners under the same firm as be- fore, and the executors, when they divided the profits and loss of the trade, carried the same to the account of the infant, and. took no part of the profits themselves^Xa;) " It must be observed, that when the law speaks of executors not "Carrying on the business of their testator, it means that they are not to buy and selh There aje many eases, when executors not only may, but are bound to continue the business to a certain extent. Thus if a party •contracts for himself and his executors to build a house, and dies, the executors must go on, or they will be liable in damages for not com- pleting the work.(y) So, if a party engages to build a house, and dies after having procured all the necessary materials, it should seem that his executors ought to complete the work, and not dispose of the mate- rials at a loss to the estate.(z) Again, if a iDookseller undertakes to pub- - lish a work in parts, and, before the completion, he dies, a subscriber has a claim upon the estate to complete the work ; for otherwise those parts which he has purchased, upon the faith of the work being com- pleted, are useless : So, if a man makes half a wheelbarrow, or half a pair of shoes, and dies, the executors may complete them, and they are not bound to sacrifice the property of their testator by selling articles in an imperfect state.(a) So, if the deceased died possessed of a manu- factory, his executors, it should seem, would be justified in continuing the works for a reasonable time, if this should be requisite fjM- the pur- pose of selling the machinery and premises to advantage ; ana they will not, at least in equity, be charged with any loss sustained in employing the assets in so continuing the trade, if they act bona Jida, and accord- ing to the best of their judgment(6) Of the Collection of Judgments against the Deceased in his Lifetime; of Suits pending against the Deceased at the Time of his Death ; of the Limitation of Actions against Executors and Administrators ; of Suits and Judgments against them ; of the Publication of Notice for the Presentation of Claims and the Exhibition of Claims against the Deceased to the Executor or Administrator ; their Refer en<,e and Pay- ment; and of Proceedings in the Surrogates' Courts to enforce the Pay- ment of the Debts against the Personal Property of the Deceased. 1. With respect to the collection of judgments against the deceased in his lifetime, it has already appeared(c) that it is provided by the Revised Statutes, that in all cases in- which a record of judgment shall be filed and docketed within one year after the death of the party against whom such judgment was obtained, a suggestion of such death, if it happen before judgment rendered, shall be entered on the record; and if after judgment rendered, the fact shall be certified on the back (x) 'Wms. fln Exrs. 1526. (y) Marshall v. Broadhursi, 1 Crompt. & Jerv. 405 ; S C, 1 Tyrw. 350. Ante, p. 29X). (z) 1 Crompt. & Jerv. 405. See, also, Edwards v Grace, 2 Mees. & Wells. 190. (a) 1 Crompt. & Jerv. 405, 406. See Dakin v. Cope, 2 Russ. Chano. Cas. 170. (6) Garrett V. NoiV-, 6 Sim. 504- ; Wms. 1528. tjk {c) Ante, p. 285, See 2 E. S. 359, 60 ; 4tll ed. eot, sec. 8. 312 COLLECTION OF JUDGMENTS AGAINST DECEASED, ETC. of sucli record, by the attorney filing the same. Such judgment, it is further provided, shall not bind the real estate which such party shall have had at the time of his death, but shall be considered as a debt to be paid in the usual course of administration.(c?) The Eevised Statutes further provide as follows : Sec. 27. If any party die after judgment rendered against him, but before execution issued thereon, the remedy on such judgments shall not be suspended by reason of the non-age of any heir of such party},. but no execution shall issue on any such judgment, until the expiration of one year after the death of the party against whom the same was rendered.(e) Both these provisions may have had special reference to real estate,, but they are equally applicable to personal property — the same con- siderations applying to each species of property.(/) Where the judg- ment against the defendant was entered on a boud, and warrant of at- torney to confess judgment within one year after the death of the de- fendant, as of the term in which he died, it was held that such judg- ment did not bind the real estate of the deceased ; but that it was merely a debt having a preference, to be paid in the usual course of administration : and that an execution could not issue upon such judg-' ment, nor can an execution issue upon any other judgment where the defendant dies after judgment and before execution, until one year after the death of the defcndant.(5') The following, which is the next section of the statute to that last above recced, relates to the present subject. Sec. 28. If any person taken in execution against his body, shall die while so charged, new executions may be issued against the goods, chattels, lands and tenements of the deceased, in the same manner as if he had never been charged in execution. (A) Judgments against the deceased in his lifetime, could, under the Ee- vised Statutes, be revived against his personal representatives by scire facias. After providing for the issuing of writs of scire facias quare execuiionem non, whenever an execution had not been issued within the time allowed by law, after the filing of the record of judgment, or re- covery by the next section of the statute, it Avas enacted as follows : Sec. 2. Writs of scire facias shall be issued, in the cases not other- wise provided by law, to revive a judgment against the personal re- presentatives of any deceased defendant, or to continue a suit by or against the representatives of either piarty who shall have died in the progress thereof. . But such writs against the personal representatives of any party, slft,ll be issued within one year after the cause for issuing the same shall arise.(i) (d) The next section of the statute, as appeared at page 285,^ovided for the case of a verdict rendered before the death of the party, and proceedings stayed by bUl of exceptions or order of the court. (e) 2 R. S. 368, 4th ed. 616. (/) Nichols V. Chapman, per Savage, Ch. X, 9 "Wend. 452, 455. (?) Mchols V. Chapman, 9 Wend. 452. See, also, The People v. The Judgesof the Albemy Mayor's Court, 9 Wendell, 486. (ft) 2 R. 9. 368; 4th ed. 616. (i) 2 R. S. 576 ; 3d ed. 671. The compilers of the 4th edition of the Revised Statutes have regarded these prov|gons as repealed by.sec. 428, ch. 2, tit. 13 of the Code. That sec- tion does not, of itself proMbly abolish the. writ of scire facias in any other oases than those for COLLECTION OP JUDGMENTS AGAINST DECEASED, ETC. 813 By section 376 of tlie Code of Procedure, it is provided that in case of the death of a judgment debtor after judgment, his personal repre- sentatives ^ay, at any time within one year after their appointment, be summoned to show cause why the judgment should not be enforced against the estate of the judgment debtor in their hands. By section 377, the summons is to be subscribed by the judgment creditor, his representatives or attorney ; shall describe the judgment, and require the person summoned to show cause within twenty days after the service of the summons ; and shall be served in like manner as an original summons. Sec. 378. The summons shall be accompanied by an affidavit of the person subscribing it, that the judgment has not been satisfied, to his knowledge or information and belief, and shall specify the amount due thereon. Sec. 379. Upon such summons, the party summoned may answer within the time specified therein, denying the judgment, or setting up any defence which may have arisen subsequently.( j') Sec. 380. The party issuing the sunimons may demur or reply to the answer, and the party summoned may demur to the reply, and the issues may be tried and judgment may be given in the same manaer as in an action, and enforced by execution, or the applicatioii of the property charged to the payment of the judgment, may be compelled by attachment, if necessary. Sec. 381. The answer and reply shall be verified in the like cases and manner, and be subject to the same rules, as the answer and reply in an action. These provisions of the Code probably supersede the above second section of the Revised Statutes. The writ of scire facias, it should be remarked, however, is not abolished in the case under consideration, by the '428th section of the Code, which applies, it is supposed, only to the cases specified in the chapter of which it is the first section. Kor is the provision of the Revised Statutes repealed by thp 468th section of the Code, which declares only, that " all statutory provisions incon- sistent with this act are repealed," the proceeding hj scire facias to revive a judgment against the personal representatives of a deceased debtor, not being inconsistent with any of the provisions of the Code. The subsequent clause of the same section, providing that " all rights of action given or secured by existing laws, may be prosecuted in the manner provided by this act, " does not, in terms, prohibit or prevent the issuing of a scire facias as a concurrent remedy with that provided by the Code. But a proceeding by scir'e facias, it is laid* down, is to be regarded as an action. (^) And the 69th section of the Code provides, that there shall be but one form of action for the enforcement or pro- whioh a remedy is substituted by tlie provisions of the chapter in which it is contained, among which the collection of a judgment after the time for issuing execution has expired, or after the death of the judgment debtor, is not to be found. The provisions of the Revised Statutes for these purposes, are, however, as will presently appear, superseded by other sections of the Code. Cameron agt. Toung, 6 How. Prac. Rep. 3T2, although this was not so considered in the anonymous case, 1 Code Reporter, 118. {j) See Mac Farland v. Jrwin, 8 Johns. 78. (fc) Cameron & M>Kay agt. Joung, 6 Howard's Prac. Eep. 3'72, and oases cited. 314 COLXEOTION OF JUDGMENTS AGAINST DECEASED, ETC. tection of private rights and the redress of private wrongs, which shall be denominated a civil action. And the 127th section pmvides, that civil actions in courts of record shall be commenced by the service of a summons. An action, therefore, cannot be commenced by scire facias, nor otherwise than by the service of a summons. The proceed- ing by scire facias being an action, consequently it is considered as superseded, and the section of the Eevised Statutes in question, is by implication repealed. (Z) The above second section of the Eevised Statutes, provided, it will be remembered, that writs of scire facias to revive a judgment against the personal representatives of any deceased defendant, should be issued within one year after the cause for issuing the same should arise. " The cause," said Chief Justice Nelson,(m) speaking of this provision, "is the death of the defendant in the judgment, and that makes the re- vival by this proceeding necessary. But until the executor qualifies, the plaintiff should not be bound to commence proceedings ; the year should then begin to run. The object of this provision is apparent, namely, to enable the executor or administrator to close the settlement of the estate within the eighteen months prescribed by statute ;(ra) aftfer which time he is bound to render and adjust his accounts before the surrogate. Though the limit of the year is short, I do not'perceive any particular hardship in the case : it is desirable the estate should be settled within a reasonable time." This view seems to have been adopted in framing the above sections of the Code, which it will be ob- served, provide that the personal representatives of the deceased judg- ment debtor, may be summoned to show cause why the judgment should not be enforced at any time within one year after their appointment. 2. With respect to suits pending against the testator or intestate, at the time of his death, the Code of Procedure, section 121, provides that no action shall abate by the death of a party, if the cause of action sur- vive or continue. In case of death of a party, the court, on motion, at any time within one year thereafter, or afterwards, on a supplemental complaint, may allow the action to b^ continued by or against his repre- sentative in interest.(o) It seems that after the death them at private or public sale, at a less price than the value so returned, or that since the return of the invento'ry, such property has deteri- orated or enhanced in value. Sec. 15. In every such action the defendants shall not be charged for auy demands or rights in action specified in their inventory, unless it appear that such demands or rights have been collected, or might have been collected with due diligence. '» Sec. 16. The last two sections shall not be construed to vary any rules of evidence, in respect to any proof which an executor or admin- istrator may now make by law.(a) Where a judgment has been obtained against an heir or devisee, for a debt of the estate, the statute provid^ as follows : Sec. 7. Every judgment against an heir or devisee shall be a bar to any subsequent suit against the executor or administrator of the anoes-' tor or devisor, for the same debt or damages, upon which such judg- ment' shall have been obtained, unless the plaintiff shall show an exe- cution against such heir or devisee, returned unsatisfied, or that no suf ficient lands or tenement have descended or been devised to such heir or devisee. Sec. 8. In all cases where a judgment shall be recovered against an heir or devisee, for a debt or legacy expressly charged on the estate descended or devised, it shall be an absolute bar to any subsequent suit against the executor or administrator, for the same debt or le- gacy.(6) It may here properly be added, that no justice of the peace has cog- nizance of aa action against am executor or administrator as suoh.(c) And, in this particular, the jurisdiction of the justices' courts of the different cities of this state, and of the justices' courts and Marine Court of the city of New York, is the same as that of justices of the peace, and is in like manner restricted.(o?) It might properly have been observed, at a previous page, but may here very "well be further added, that a judgment against the deceased in a j ustice's court, not having been docketed in his lifetime, has no pri- ority of payment over other debts, (e) With respect to the pleadings and proceedings in actions against ex- (a) 2 R S. 449 ; 4th ed. 691. (6) 2R. S. 114; Jth ed. 299. ic) Code, sec. 64. d) See Code, pt. 1, tit. 1, chapa 1, 2, 3. («) Steuensonv. Meisser, 1 BradE Sorr. Rep. 343. BRINGING AND CONDUCTING SUITS, ETa 321 ecutors and administrators, it is necessary to consider together the stat- utory provisions relating particularly to those subjects, and those rela- ting to the recovery of judgments, the issuing of executions, and the compelling accounts in the Surrogates' Courts for the enforcement of judgments and debts of the estate against executors and administrators, and the enforcement of debts of the estate against executors and ad- ministrators, by proceedings in the Surrogates^ Courts generally. The ascertainment of the debts of the deceased by the publication of a no- tice for the exhibition of claims, the reference of claims, and the dispo- sition of claims referred, being proceedings for the payment of debts, and the reference being in the nature of a suit, and being so joined in the statutes, will properly be also considered in the present connection. This subdivision will, therefore, embrace not only the subjects of plead- ings and proceeaings in suits against executors and administrators, but nearly all the remaining topics proposed to be treated of in this chapter. The following sections of the statute prescribe the regulations to be observed in the prosecution of suits against executors and administra- tors, and declare the conditions under which executions are to be issued against them. Sec. 31. In any suit against an executor or administrator, the de- fendant may show, under a notice for that purpose given with his plea, that there are debts of a prior class unsatisfied, or that there are un- paid debts of the same class with that on which the suit is brought; and judgment shall be rendered only for such part of the assets in his hands as shall remain after satisfying the debts of the prior class, and as shall be a just proportion to the other' debts of the same class with that on which the suit is brought. But the plaintiff may, as in other cases, take judgment for the whole or part of his debt, to be levied of future assets. (/) Sec. 32. No execution shall issue upon a judgment against an exe- cutor or administrator, until an account of his administration shall have been rendered and settled, or unless on an order of the surrogate who appointed him. And, if an account has been rendered to the surrogate by such executor or administrator, execution shall issue only for the sum that shall have appeared, on the settlement of such account, to have been a just proportion of the assets applicable to the judgment.(/) Sec. 20, [Sec. 19.J Where a creditor shall have obtained a judg- ment against any executor or administrator, after a trial at law upon the merits, he may, at any time thereafter, apply to the surrogate having jurisdiction, for an order against such executor or administrator, to show cause why an execution on such judgment should not be is- sued.(g') Sec. 21. [Sec. 20.] The surrogate to whom such application may be made, shall issue a citation, requiring the executor or administrator complained of, at a certain time and place therein to be named, to ap- pear and account before him ; and it, upon such accounting, it shall appear that there are assets in the hands of such executor or adminis- trator, properly applicable under the provisions of this chapter, (^^) to (/) 2 R. S. 88 ; 4th ed. 213-i. g) 2B. S. 116; 4th ed. 301. ' y) Chap. 6, pt 2, B. S. 21 & 322 BRINGING AND CONDUCTING SUITS, ETC. the payment, in wliole or in part of the judgment so obtained, i\e surrogate shall make an order that execution be issued for the amount so applicable.(5') Sec. 22. [Sec. 21.j Every such order shall be conclusive evidence that there are sufficient assets in the hands of such executor or admin- istrator, to satisfy the amount for which the execution is directed to be levied ; and no appeal shall be made from any such order, unless the person making the same shall execute to the plaintiff in such execu- tion, a bond with sufficient sureties, to be approved of by the surro- gate, conditioned for the payment of the full amount so directed to be levied, with interest thereon, and the costs of defending the appeal, in case the order appealed from shall be affirmed.(g') Sec. 23. [Sec. 22.] If the whole sum for which a judgment may have been obtained shall not be collected on the execution so directed to be issued, and assets shall, thereafter come into the hands of such exe- cutor or administrator, the surrogate, shall make a further order for is- suing execution, upon the application of the creditor, his personal re- presentatives or assignees, and shall proceed in the same manner, from time to time, whenever assets shall come to the hands of the executor or administrator, until such judgment shall be satisfied.(A) The following section of the statute, relative to " pleadings and set- offs," provides for judgments for set-offs in suits brought by executors and administrators, and regulates the issuing of executions on such judgments. Sec. 38. [Sec. 24.] Whenever a set-off is established in a suit brought by executors or administrators, the judgment shall be against them in their representative character, and shall be evidence of a debt estab- lished, to be paid in the course of administration ; but execution shall not issue thereon, until directed by the surrogate who granted letters testamentary or of administration. (i) The following section of the same statute relates to the subject of set-offs in actions against executors and administrators. Sec. 39. [Sec. 25.] In actions against executors and administrators, and against trustees and others, sued in their representative character, the defendants may set off demands belonging to their testator or:in- testates, or those whom they represent, in the same manner as the per- son so represented would have been entitled to set off the same, in an ac- tion against them.(y) The ruling principle of the statute relative to the payment of the debts of deceased persons, is, in case of an insufficiency of assets,' to effect a pro-rata distribution among all the creditors of the deceased not expressly preferred. The 27th section of the statute declaring the order for the payment of the debts of the deceased, already recited at 1 en gth,(^) provides, as will be remembered, that the executor or administrator shall pay the same according to the following order of classes :■, (jr)2R. S. 116; 4th ed. 301. (A) 2 R.S. 11V; 4th ed. 301. (i) 2 R. S. 355 ; 4th ed. 605. 0') 2 R. S. :h55 ; 4th ed. 605. (k) Ante, p. 284, 285. BRINGING AND CONDUCTING SUITS, ETC. 323' 1. Debts entitled to a preference, under the laws of the United States. 2. Taxes assessed upon the, estate of the deceased, previous to his death. 3. Judgments docketed and decrees enrolled against the deceased, according to the priority thereof respectively. 4. All recognizances, bonds, sealed instruments,, notes,, bills and un- liquidated demands and accounts. The 28th section, also already recited, it will likewise be remem- bered, forbids any preference in the payment of any debt, over other debts of the same class, except those specified in the third class. It follows, from these provisionsf that all debts not included in the first three classes of section 27, are to be paid ratably, in case of deficiency of assets, and without any preferences, excepting such preference as is allowed by the section numbered 30, before reoited,(Z) in respect to rents due or accruing upon leases ; such being the principle of the statute, it became necessary that means should be provided for enabling the executor or administrator to ascertain all the debts existing against the estate, in order that he might determine as to the sufficiency of the assets, and, in case of deficiency, to how much each claimant was enti- tled. The publication of a notice for the presentation of claims, was the expedient devised for this purpose, and such publication is provided for by the following sections of the statute.. The same sections also prescribe regulations in respect to vouchers, and for the reference and enforcement of claims against the estate. Sec. 34. Any executor or administrator, at any time, at least six months after the granting of the letters testamentary or of administra- ■ tion, may insert a notice once in each week for six months, in a news- paper printed in the county, and in so many other newspapers as the surrogate may deem most likely to give notice to the creditors of the deceased, requiring all persons having claims against the deceased to exhibit the same, with the vouchers thereof,, to such executor or ad- ministrator, at the place of his residence or transaction of business, to be specified in such notice, at or before the day therein named, which shall be at least six months from the day of the first.publication of such notice, (m) Sec. 35. Upon any claim being presented against the estate of any deceased person, the executor or administrator may require satisfactory- vouchers in support thereof, and also the afB.davit of the claimant that such claim is justly due, that no payments have been made thereon, and that there are no offsets against the same to the knowledge of the claimant ; which oath may be taken before any justice of the peace, or other oificer authorized to administer Qaths.(m) Sec. 36. If the executor or administrator doubt the justice of any claim so presented, he may enter into an agreement in writing with the claimant, to refer the matter in controversy to three disinterested per- sons, to be approved by the surrogate ; and upon fihng such agreement and approval of the surrogate .in the of&c^ of a clerk of the Supreme. (I) Ante, p. 284. (to) 2 E. S. 88 ; 4tli ed. 2^4. 324 BEINaiNG AND CONDUCTING SUITS, ETC. Court, or of the clerk of the Court of Common Pleas of the county in which the parties, or either of them, reside, a rule shall be entered by such clerk, either in vacation or in term, referring the matter in con- troversy to the persons so selected.(m) Sec. 37. The referees shall thereupon proceed to hear and determine the matter, and make their report thereon, to the court in- which the rule for their appointment shall have been entered. The same proceed- ings shall be had in all respects, the referees shall have the same powers, be entitled to the same compensation, and subject to the same control, as if the reference had- been made in an action in which such court might by law direct a reference ; and the court may set aside the report of the referees, or appoint others in theii^places, and may confirm suci report, and adjudge costs, as in actions against executors ; and the judg- ment of the court thereupon shall be valid and effectual in all respects as if the same had been rendered in a suit commenced by the ordinary process.(n) The following section provides for the case of a claim exhibited to the executor or administrator, and disputed or rejected, by him. Sec. 38. If a claim against the estate of any deceased person be ex- hibited to the executor or administrator, and be disputed or rejected by him, and the same shall not have been referred, the claimant shall, within six months after such dispute or rejection, if the debt, or any part thereof, be then due, or within six months after some part thereof shall have become due, commence a suit for the recovery thereof, or be forever barred from maintaining any action thereon ; and no action shall be maintained thereon, after the said period, by any other person deriving title thereto from such claimant ; and any executor or admin- istrator may, on the trial of any action founded upon such demand, give in evidence, in bar thereof, 'under a notice annexed to the general issue, the facts of such refusal and neglect to commence a suit.(o) The following sections of the statute contain provisions governing the prosecution of claims not presented under the notice authorized by the preceding 34th section, and regulate the recovery of costs in suits against executors and administrators. Sec. 39. In case any suit shall be brought upon a claim which shall not have been presented to the executor or administrator of a deceased person, within six months from the first publication of such notice, as hereinbefore directed, such executor or administrator shall not be chargeable for any assets or moneys that he may have paid, in satisfac- tion of any claims of an inferior degree, or of any legacies, or in making distribution to the next of kin, before such suit was commenced, but may prove such notice published by him as aforesaid, and such payment and distribution, in support of his plea of having administered the es- tate of the deceased.(o) Sec. 40. In such action the plaintiff shall be entitled t« recover only to the amount of such assets as shall have been in the hands of such executor or administrator at the time of the commencement of the suit j or he may take judgment for the amount of his claim, or any part (m) 2 R. S. 88 ; 4th ed. 214. in) 2 R. S. 89 ; 4th ed. 274. .(o) 2 R. S. 89 ; 4th ed. 215. BRINaiNG AUD CONDUCTING SUITS, ETC. 325 •thereof, to be levied and collected of assets -which shall thereafter come into the hands of such executor or administrator, (o) Sec. 41. In such suit no costs shall be recovered against the defend- ants; nor shall any costs be recovered, in any suit at law, against any executors or administrators, to be levied of their property, or of the property of the deceased, unless it appear that the demand on which the action was founded was presented within the time aforesaid, and that its payment was unreasonably resisted or neglected, or that the de- fendant refused to refer the same, pursuant to the preceding provisions; in which cases the court may direct such costs to be levied of the prop- erty of the defendants, or of the deceased, as shall be just, having re- ference to the facts that appeared on the trial. If the action be brought in the Supreme Court, such facts shall be certified by the judge before whom the trial shall have been had.(p) Sec. 42. But any creditor who may have neglected to present his claims as aforesaid, may, notwithstanding, recover the same in the man- ner prescribed by law of the next of kin and legatees of the deceased, to whom any assets shall have been paid or distributed.(g') The enforcement of claims against executors and administrators, by proceedings in the Surrogates' Courts, is provided for as follows : By section 18 of the title of the Revised Statutes concerning " the rights and liabilities of executors and administrators, "(r) the surrogate having jurisdiction has power to decree the payment of debts against the executor or administrator of a deceased person, upon the applica- tion of a creditor. The payment of any debt, or a proportional part thereof, may be so decreed at any time after six months shall have elapsed from the granting of the letters testamentary or of administra- tion. ♦ By the article of the Eevised Statutes concerning "the duties of exe- cutors and administrators in rendering an account, and in making dis- tribution to the next of kin,"(s) an executor or administrator, after the expiration of eighteen months from the time of his appointment, may be required to render an account of his proceedings, by an order of the surrogate, to be granted upon application from, some person having a demand against the personal estate of the deceased, either as creditor, legatee, or next of kin ; or of some person in behalf of any minor hav- ing such claim ; or without such application ; or the executor or ad- ministrator may voluntarily render such account,' and be decreed to pay and distribute any part of the estate remaining in his hands to and among the creditors and other persons interested, according to their respective rights. By section 76 of the law of 1837,(<) the order to account thus autho- rized, must be served upon the executor or administrator thitty days (o) 2R. S. 89; 4th ed. 275. (p) 1 R. S. 90; 4th ed. 275. (g) lb. For the statutory provisions relative to the recovery from next of kin and legatees, of debts due by the deceased, see art. 2, title 3, chap. 8, part 3 of the Revised Statutes, 2d vol. p. 450 ; 4th ed. 692. See, also, on the same subject, Stiwirt v. Eissam, 2 Barb. Sup. Ct. Eep. 493, 512. (r) 2 R. S. 11 6 ; 4th ed. 300. Is) Art. 3, title 3, chap. 6, part 2, 2 R. S. 92 ; 4th ed. 277. {t) S. L. 1837, 537 ; 2 R. S. (4th ed ) 277. 326 BRINGING AND CONDUCTING SUITS, ETC. at least before the time of hearing ; or, where the executor or adminis- istrator resides out of this state, must be published for three months in the state paper, and in a paper of the county or of an adjoining county, unless it be served upon such non-resident executor or administrator, at least sixty days before the return day thereof. The statutory declarations and provisions relating to the subject now under examination, have been collected in this chapter, as well because it is believed that the connected form in which they are thus given will be found generally useful to the reader, and prove conducive to the proper discussion and understanding of the present subject, as to faciU- tate the necessary references to them in the following pages. It will also serve, it is hoped, to exhibit more distinctly the harmonious rela- tion which exists in their respective enactments, touching the liabiUty of the estates of deceased persons, and the prosecution of claims and actions against executors and administrators. In the course of the following remarks, several of the decisions which have been made respecting the construction and operation of some of these sections will be cited at considerable length. This plan has been adopted, and has-been the more freely pursued, not only for the sake of accuracy, but because it will be found that those decisions, in many instances, besides determining the particular points directly in issue in the cause, embody important directions and principles to be re- garded by the executor or administrator in the' due discharge of the duties of his trust. The defence of a want of assets by an executor or administrator in an action at law against him, which appears to be authorized by the above section, numbered 31, and also by the section numbered 39, and the pleas generally, which, under the Revised Statutes, may 1ft success- fully interposed by executors and administrators in suits against them, are made the subject of comment in several reported decisions, to which it is proper in this place to direct the reader's attention. Although the forms of pleading in vogue under the Revised Statutes have been abolished by the Code of Procedure,(w) and a system of com- plaint, answer and replay, adopted in their stead, the general principles and substantial rules of pleading remain unaltered, and these cases are as applicable under the new system as under that previously existing. In Parker's Executors v. Gainer's Admmistrators,{v) it was held that a plea by an administrator of a judgment recovered against him as administrator, and that he has fully administered, except as to goods and chattels to a certain amount, which are not sufficient to satisfy such judgment, is not a bar to a recovery, and the court say : " The plea is clearly bad, the judgment gave no preference to Gainer (the judgment creditor) over the claim of the plaintiffs. (w) • Under our present system of administration, preferred debts are but few in num- ber. Debts entitled to preference under the laws of the United States, taxes and judgments against the deceased at the time of his death, con- stitute the 1st, 2d and 3d classes ; all judgments against his personal fa) Code of Procedure, part 2, title 6. (v) 17 Wend. 559. (to) "2 E. S. 86, sec. 28;" AnU, p. 284. BRINGING AND CONDUCTING SUITS, ETC. . • "] 327 representatives, and recognizances, bonds, sealed instruments, and de- mands on simple contract against the deceased, come in for equal dig-- nity.(a;) As to all these, after the debtor's decease, no preference can be created by the acts of the parties, nor in any other way, except as to rents, in respect to which a preference may be given at the discre- tion of the surrogate. Id. 28 and 30. To the surrogate the whole ad-, ministration is committed, in so far that no execution can, in general, go upon a^dgment obtained after the death, except on a full account- ing before the surrogate on an order made by him. The common law courts are reduced to little more than mere instruments of liquida-. tion.(?/) Ample provision is made for proceeding to a general account and payment oi judgments, obtained after the death of the testator or in- testate, and of the bonds, &c., of the deceased, as claims of the same degree, and in dividends j;ro rafa.{z) The plea adopted here, would have been good at common law, had our statute stopped with bringing, bonds and contracts to the same level, for, in respect to debts of equal degree, the first judgment must have been first satisfied.(a) The doctrine is very familiar, and it constitutes the sole foundation of the plea, the form of which may be found in 3 Chit. PI. 947-8, ed. of 1828. The sole principle of the plea used to be, that by recovering a judgment, assets pro tanto he-. came tied up in the hands of the defendant, and, as it were, appropri- ated by law to the payment of the judgment ; and if there were no as- sets beyond, the defendant might be said, in one sense, to have fully administered. The statute destroying the principle, this plea of course falls to the ground. As well might the administrator have pleaded a simple contract with riens ultra, as now to "plead this j udgment. The old system of preferential administration being almost entirely sub^ verted, all the pleadings and other parts of the ancient superstructure, in so far as it was raised for the protection of that system, have gone with it. " The thirty-first section allows a defence, on notice with the plea, adapted to the present order of preference and pro rata distribution, though it is very difficult to perceive how a common law verdict and judgment can be made to Iqok into the concerns of the whole estate, and fix the exact rate of recovery. The provision seems to me to be of little if any practical benefit ; for, looking at the various powers of the surrogate, (J) execution must, in all cases which I have been able to conceive, go upon his order, not only in the first instance, but for as- sets quando acciderint. However formal, full and specific the verdict and judgment may be under section 81, in respect to present or future assets, I cannot see, when I look at the plain and broad words giving power to the surrogate, that they may be received to conclude, or in any way control him in marshalling assets. Were this not so, a ver- dict at law between A and B might exhaust the estate, and leave the great mass of creditors without any satisfaction for their debts. At all (x) " 2 B. S. si, sees. 21, 2H ;" Ante, p. 284. (y) Id. 88, sec 32; 9 Wendell, 448, 486; 2 R. S. 116, sec. 19. See ante, p. 321. (z) Id. 88, sec 34 et seq. ; Id. 116, sec. 19 etseq.; Ante, p. 321. (a) 2 Wms. Exrs. 679, 680, and the cases there cited ; 4th ed. 8.i5, 868. (i) 2 E. S. 81-8, seoa 30, 32, and Id. 116, sees. 19 to 22 inclusive ; Ante, p. 321-2. 328 beinghtg and conducting sxnTS, etc. events, it is safe to say tliat any other mode of pleading, founded on notions of preference, besides that given by the 31st section, is gone. That declares that the defendant may give notice with his plea, what- ever it is, that there are debts of a prior class, or unpaid debts of the same class ; and judgment is to go only for the assets ultra or pro rata^ and the plaintiff may take judgment also for assets in futuro ; and no matter of defence arising under the above section numbered 39, pre- scribing the administrator's defence in the case of a claim not presented under his notice, could be received under a plea framed pursuant to the 31st section." The doubt thus intimated, whether the above 31st section could, in practice, be made available, is repeated in the remarks of the court in the subsequent case of Butler v. Hempstead'' s Admimslraiors.(e) After reviewing the statutory directions relative to the payment of the debts^ Chief Justice Nelson there says : — " These several provisions most effectually abolish all preferenoeain the payment of debts, except in respect to those of a higher degree, together with judgments and decrees existing against the deceased, and secure a pro rata distribution where the assets are insufficient to satisfy all the debts. The general principle is not only declared by forbidding preferences in the payment, but power is given to the executor and to the surrogate to accomplish the object of the statute.(c?) The suit may be defended to prevent an absolute judgment beyond the just propor- tion ; but even then, an execution cannot issue till the estate has been settled, so as to enable the surrogate to ascertain what that proportioii will be ; or upon the order of this ofBcer. It seems the judgment is not to be conclusive as to the proportion ; indeed, it must be in most cases impracticable to ascertain it till the settlement of the estate ; nor do we discover any particular use in the 31st section. For an execu- tion cannot issue upon a judgment against executors or administrators in any case, until an account of their administration has been rendered, or on an order from the surrogate ; and then only for the just propor- tion of the assets. Whether the suit, therefore, is defended or not, is immaterial ; for, in either case, no more than the just proportion of the debt can be legally collected, if there is a deficit of assets. A judg- ment gives no preference.(e) Afterwards, in Allen- and Wife v. Bishop^s Exeeutors,{f) this 31st sec- tion Was almost in terms declared nugatory. That case was a demur- rer to two pleas on the part of the executors, one of which was the plea of phne administtavii. Chief Justice Nelson, in delivering the opinion of the court, says :• — " There are some sections of the Revised Statutes, which it is impos- sible to reaoncile with the general system prescribed in respect to the settlement of estates of deceased' persons.. The system itself does not seem to have been fully comprehended by its authors. A pro rata dis' tribution among the creditors of a class,, in case of deficit in the assets, (c) 18 Vend. 666. {d) 2 R. S. 88, sees. 31, 32 ; Ante, p. 321.. (e) " 2 R. S. 87, sec, 28 ;" Ante, p. 2a4. (/) 25 Wend. 414. BRINGING AND CONDUCTING SUITS, BTC. 329 is a fundamental principle, for the enforcement of which abundant provision has been made. The whole fund is brought under the con- trol of the surrogate, and not a dollar can be touched without his assent. Executors and administrators are but trustees to settle the es- tate under his direction and control, agreeably to the principles of the statute. Nothing is gained by obtaining a judgment against them be- yond the liquidation of the debt. The creditor gets no costs, except at the discretion of the court, and only his ^^^ rata share on the judg- ment. The result is the same, whether the suit be defended or not.(^) " The plea of plene aAministravit, therefore, seems altogether inap- propriate and useless. It has already been held, in the case last above cited, that the plea of phne administravit proeter is no longer a bar, notwithstanding,(A) which imports the contrary ; and I think we are bound to say the one in question is not a bar, though the 39th section seems to indicate otherwise. That and the next section pre-suppose that the creditor may subject the executor where he had paid debts of an inferior degree in certain cases; but it is apparent, from other provi- sions, as well as the general scope of the statute, no such liability can arise by force of the judgment ; it may by force of the order of the surrogate, on a settlement of the accounts.(i) There he will be held to account in conformity with the rules prescribed by the statutes, ac- cording to the priority and equality of the respective classes,(t) unless the creditor has forfeited his right by laches.(Z) " The act is positive, that no execution shall issue until an account and settlement takes place, or on the order of the surrogate ; and then only for the plaintiff's proportion of the assets thus ascertained.(m) However absolute may be the judgment, I do not see how it can con- trol this officer in marshalling assets or settling the estate ; and the litigation in a suit at law of any questions that may be involved in that duty, seems worse than idle."(mm) The note of the revisers to the section in question does, not offer such an explanation of its provisions as to render it practically avail- able. It is as follows : " By the existing law, the commencement of a suit gives a preference to the claim so prosecuted over others of the same class. But this may be defeated by the confession of a judgment to another creditor, thus giving to an executor the power of selecting his favorite creditor, who is to be paid at the expense of all the others ! The injustice of this power is palpable. It was probably sanctioned in order to prevent one creditor from grasping all the estate by his vigilance. The better remedy would seem to be, to destroy the pre- ference given to claims prosecuted, and thus the temptation to multiply costs would be removed, while the reason for giving to executors the right of preferring creditors by a judgment would cease. The princi- ple of these sections is admitted by the existing law, which allows an (g) "18 Wend. 666; 12 Id. 542; IT Id. 559." (h) 2 R. S. 88, sec. 31 ; Ante, p. 321. (i) 2 E. S. 92, 95. (k) 2 R. S. 87, sees. 21, 30 ; Ante, p. 284, 321-2. {h 2 R. S. 89, sees. 38, 39. [m) " 2 R S. K«, see 32, p. 116 ; sec. 18, 23 ; 12 Wend. 512. ' (mm) 17 Wend. 561. 330 BRINGING AND CONDUCTING SIHTS, ETC. executor to confess a judgment for the benefit of all the creditors, and thus destroy preferences."(n) There is a difficulty in proceeding under the section in question, ■which was not adverted to by the learned court in the decisions -which have been quoted. An executor or administrator is liable to suits for debts owing by his testator or intestate ; which, by the other provi- sions of the statutes, are to be paid in full, or ratably, according to the sufficiency of the assets and the, total amount of the debts; at anytime after his appointment ; but, by the succeeding section, numbered 34,, providing for the publication, by the executor or administrator, of a notice to all persons having claims, for the purpose of ascertaining the whole amount of debts to which the assets in his hands shall be liable, he cannot discover all the claims against him until the- expiration of a year from the granting of his letters. He consequently does not know until the year has elapsed, whether the assets will be sufficient to pay all the debts in full or not. In suits th^n against him, in the mean- time, especially for debts included in the 4th class of the 27th section, it will be absolutely impossible to ascertain the proportion of the assets to which any claimant may be entitled, so that judgment may be ren- dered for exactly the proper amount under the section. And other difficulties would present themselves in attempting a defence according to this provision ; but enough has been said to show that it is unavail- able in practice, if not absolutely nugatory. In an action against an administrator, the plaintiff cannot join a count on a promise by the intestate, with counts on promises by the adminis- trator for causes of action accruing since the death of the intestate. A promise by the administrator, on- an account stated of moneys due from the intestate in his lifetime, may be joined with a count on a promise by the intestate, but not a promise by the administrator on an account stated of moneys due from himself.(o) In an action against a married woman, executrix, the husband must be joined as a defendant. And they must both plead ; otherwise it will be a discontinuance. IE a, feme covert and a stranger are executors, the action must be against the stranger, executor, and the husband and wife, executrix.(j3) With respect to the defendant's pleas in proceedings by scire facias, against executors or administrators, it was held, in Box v. Backenstose, Administratrix &c.,{g) that it is a good plea to a declaration, on a scire faxiias quare eocecutionem non, issued against an administratrix upon a judgment against her, that she has not rendered an account of her ad- ministration to the surrogate. '"The Revised Statutes," says Chief Justice Savage in^that case, " have materially altered the law and the practice in relation to execu- tors and administrators. Formerly, it was often important to obtain a judgment as early as possible against an executor or administrator; for the first judgment was entitled to priority in payment. But now, (?i) 3. R. & or. S. App. 641-2. (o) Gillett V. SuicMnson's Admr's, 24 -Wend. 184 ; Reynolds t. Reynolds' Admr's, &o., 3 lb. 244. (p) Wms. on Exrs. 1641, and cases cited. (2) 12 Wen. 642. BRINGING AND CONDUCTING SUITS. ETC. 331 neither the commencement of a suit, nor the obtaining a -judgment against an executor or administrator, entitles such debt to a preference over others of the same class, (r) " The jurisdiction of the surrogate has been extended and enlarged in relation to this class of persons. Executors and administrators themselves have a new character, and stand in a different relation from what they formerly did, to the creditors of the deceased persons with whose estates they are entrusted. They are not now the mere repre- sentatives of their testator or intestate — they are con tituted trustees ; and the property in their hands is a fund, to be disposed of in the best manner for the benefit of the creditors, and not liable, as it once was, to be dissipated in bills of costs, created by the anxiety of creditors to obtain the first judgment, and- thus secure the payment of their debts, to the prejudice, perhaps, of others. Now a more equitable rule pre- vails. No preference is given among debts of the same class." And after stating that the above section, numbered 32,(s) prohibiting the issuing of an execution upon a judgment against an executor or administrator until an account of Jiis administration shall have been rendered and settled, or unless on an order of the surrogate who ap- pointed him, is positive, the learned chief justice proceeds : " Until the statute has been complied with; the plaintiff is not in a situation to issue an execution. The defendant here is called on to show cause why execution should not issue. She does show cause ; and that cause is, that until the plaintiff calls her into another court, and gives her an opportunity to show, before the appropriate tribunal, the true state of the fund in her hands, he is not in a situation to ask this court for an execution upon the judgment. If eighteen months have expired since her appointment, the plaintiff may obtain an order from the surrogate requiring her to render an account of her proceedings. On the render- ing of such account, the surrogate is invested with equitable powers. The statutory provisions on this subject are ample ; to the surrogate the plaintiff must resort, and there have the matter examined, and the amount, if any due him, liquidated, and an order obtained, specify- ing the amount for which execution may issue. All this is good cause for the plaintiff to show why this court ought not to award an execu- tion before an accounting in the Surrogate's Court. " Whether the former practice of proceeding by scire facias, to issue execution against executors and administrators has not been superseded by the statute transferring to the surrogate authority to order the issu- ing of an execution, is a question not now necessary to be decided ; but if it is not, it seems to me the intention of the Legislature may be frus- trated. I doubt very much whether this court would be justified in looking into the equities, which are properly inquirable into before the surrogate; if it would not, it is evident that the whole subject is under the supervision and control of the surrogate. I see no good reason for preventing a plaintiff, who has the surrogate's order, from instituting proceedings in this court ; but on this point no definite opinion is given. It is enough that, until the order is obtained, no execution can issue." (f) " 2 E. S. 87, sec. 28 j Ante, p. 284 (s) 2 R. S. 88 ; 4th ed. 21i ; Ante, p. 321. 832 BRINGING AND CONDXTOTING SUITS, ETC. But to a scire facias quare executionem won issued against executors to revive a judgment against the testator, a plea that the executors have not accounted to the surrogate is not good ; and so it was held in Glark V. Saxtori's executors.{t) . And the court say that " in Box v. Bachenstose, Administratrix, a judgment had been rendered against the administratrix, and the sci.fa. issued to obtain execution, after the year. The plea was sustained, because by the statute(M) no execution could issue on a judgment against an executor or administrator, until an account of administration had been taken and settled, or by order of the surro- gate ; and a pretty strong intimation was given that it might be issued by such order without any revival. But here the judgment is against the testator, and the object of the proceeding is to charge the executors on that judgment. The case is not within the statute, nor does it come within it until the judgment of revival is entered. After that, being a judgment against the executors, it may stand on the footing of Box v. JBacJcenstose. I am inclined to think the intimation in that case, that the order of the surrogate is sufficient ,to authorize the issuing of the execution, without a revival, should be adopted. That officer, as there remarked, possesses ample power to adjust any defence that may exist against the judgment : indeed, the reason given for refusing the writ of sci.fa. is, that under the act, the estate must first be settled, so as to ascertain the amount for which, execution may issue : after this the proceeding would be the merest form. This view, if sound, affords an additional consideration for the proceeding here, for until judgment of revival is obtained against the executors, the surrogate has no control over the execution." The writ of scire facias, having been in substance and effect abolished, by the Code ,of Pro3edare,(M'/)- there is not now any proceeding similar to that formerly provided by scire facias quare executionem non, against an administrator upon a j udgment against him. The Code prohibits an action upon a judgment between the same parties, without leave of the court, for good cause shown, on notice to the adverse party. (v) In case of an application for leave to bring a new action upon the judg- ment, the defence set up in the plea, in Box v. Bachenstose, Administra- trix, &c., that the defendant had not rendered and settled the accounts of the administration, would probably be admitted to prevent the leave of the court being given. "With respect to the enforcement against an executor or administra- tor of judgments against the deceased in his lifetime, it is provided by the Code, as will be remembered, (w) that in case of the death of a judgment debtor, after judgment, his personal representatives maybe summoned at any time within one year after their appointment, to show cause why the judgment should not be enforced against the es- tate of the judgment debtor in their hands ; that upon such summons, the party summoned may answer, denying the judgment, 'or setting up any defence which may have arisen subsequently, and that a judgment («) 23 "Wen. iHI. {«i 2 R. S. 88, Beo. 32 ; Ante, p. 321. luu) See Anie, p. 213; Camtron & McKay v. Tovmg, 6 Howard's Practice Reports, 312. (ti) Code, see. 71. \w) See Ante, p. 313; Code, sec. 316 to 382. BRINGING AND CONDUCTING SUITS, ETC. 333 may be given in the same manner as in an action, and enforced by ex- ecution, or»the application of the property charged to the payment of 'the judgment, may be compelled by attachment if necessary. The construction of these provisions of the Code, so far as relates to execu- tors and administrators, is, without doubt, to be ascertained by reference to the law as it stood, previous to their adoption. They were enacted, it may be presumed, to supply the place of the former proceedings by sdre facias, to revive a judgment against personal representatives, which at the same time was superseded. Under that proceeding, an execution, as has just appeared, could not be issued upon the revived judgment against the executor or administrator, until an account of his adminis- tration had been rendered and settled before the surrogate. Under the new provisions, therefore, although they speak of enforcing the judgment by execution, &c., yet the issuing of such execution, it is reasonable to suppose, would be regulated by the court by the provi- sions of the Eevised Statutes, which have been referred to, and in ac- cordance with the cases cited, would not be allowed until an account of the administration of the executor or administrator had been ren- dered and settled.(a;) With respect to the defence of the Statute of Limitations, the eighth section of the act relative to suits by and against executors and admin- istrators, (y) provides, it will be remembered, that the term of eighteen months, after thedeathof any testator or intestate, shall not be deemed any part of the time limited by law for the commencement of actions against his executors or administrators. Under the system of pleading pre- vious to the Code, where a testator was indebted, and died within six years after the accruing of a cause of action against him, and within eighteen months after his death a suit was brought against his execu- tor, who pleaded the Statute of Limitations ; the proper course for the plaintiff was, to reply that the cause of action did accrue within six years, and not to plead the facts specially that the cause of action ac- crued within six years before the death of the testator, and that the suit was commenced within eighteen montlis after that period. On such general replication, in the computation of time, the eighteen months were excluded.(3) Where the time intermediate the cause of action accrued, and the commencement of the suit, was seven years and six months, or more, the defendant, it was determined, should plead the common plea.(a) And if the plaintiff meant to contest the time, he should reply that the cause of action did accrue within the six years. The statute, section 8, • (a;) It should be noted, that the sections of the Code referred to, provide for cases of judgments against joint debtors, where one of tlie defendants has not been served with the Bummons, and for the enforcement of judgments against deceased judgment debtors, against their heirs, devisees or legatees, or the tenants of their real property, as well as to the en- forcement of judgments against deceased judgment debtors, against their personal represen- tatives: and it is submitted that the provision authorizing the issuing of the execution or attachment, may well be understood as having its full and literal |^ppUcation only in some of the former and not in the latter eases, leaving the latter to be governed by the existing rules prescribed by the Revised Statutes for the issuing of executions against executors and administrators. (y) 2 R. S. 448 ; 4th ed. 690 ; Ante p. 3 1 5. (z) HoweU V. Bahcock's Exeauior, 24 Wend. 488. [aj " VU. EwiHngUm v. Brirtckarhoff, 10 Wend. 218 ; 283-4." 334 BRINGING AND CONDtTCTING SUITS, ETC. above quoted, then came in and directed tlie mode of computation. It declares that the eighteen months shall not be deemed a part of the six years pleaded ; in other words, the six years were not complete, in the* special case, unless the whole time was seven years and a half. " The statute," it was said, " is one of evidence or computation, it is not like the statute creating an exception in cases of infancy or coverture, &c." These exceptions, it is admitted, must be replied, as was done in Chandler v. VileU.{b) A direct issue on the time, keeping the disabili- ty out of view, would admit evidence of time only. The disability, of cause of exception, could not appear upon the record without being specially replied. So where the defendant is beyond sea.(c) But in an action against an executor or administrator, a possible case for the statute appears on the face of the declaration. The bar is still 'one of six years, but it is that time exclusive of eighteen months. ' " This shall not," says the statute, " be deemed a part of the time limited." In order to satisfy the plea in such a case, the party must make out six years intermediate the day when the cause of action accrued and the day when the suit was commenced; beside the eighteen months running immediately after the death of the debtor. That is the time intended by the words of the plea, six years, &c., and in such a particular case.(cZ) The Code, as amended in 1852, in prescribing the contents of the defendant's answer, provides, section 149, for "A statement of any new matter constituting a defence or counter-claim, in ordinary and concise language, without repetition." By section 153, when the answer con- tains new matter constituting a counter-claim, the plaintiff may, within twenty days, reply to such new matter, denying generally or specifi- cally each allegation controverted by him, or any knowledge or infor- mation thereof sufficient to form a belief; and he may allege, in ordi^' nary and concise language, without repetition, any new matter, not inconsistent with the complaint, constituting a defence to such new matter in the answer ; or he miay demur to the same for insufficiency, stating in his demurrer the grounds thereof; and the plaintiff may de- mur to one or more of several counter-claims set up in the answer, and reply to the residue. A defence of the Statute of Limitations, whether founded upon the above quoted eighth section of the Revised Statutes,, or upon the clause of the 102d section of the Code before recited,(e) providing, that where the statute has not run previous to the death, a new action may bp commenced after the expiration of the statute, within one year after the issuing of the lettqj-s, will come within the description of " new matter," provided for in the answer by the 149th section. A reply, however, to new matter, is permitted only in case such new matter constitutes a counter-claim, which the defence of the Statute of Limi- tations probably is not. An issue upon the Statute of Limitations, although that may be the principal issue to be tried, will not, therefore, (6) " 2 Saund. lit,- c. 120." (c) " Vid. 10 Wend. 284." (d) Howell T. BabcocXa Executor, 24 "Wend. 488-90. See, also, Senjamm v. De Groot, 1 Denio, 151. (e) Artie, p. 316. BEINeiNG AND CONDUCTING SUITS, ETC. 835 under the new system, appear upon the record. The 168th section of the Code, however, provides that the allegation of new matter in .the 'answer, not relating to a counter-claim, is to be deemed controverted by the adverse party, as upon a direct denial or avoidance, as the case may require.(/) With respect to the defendants' set-offs, in suits brought by execu- tors or administrators, the 24th section of the statute relative to plead- ings and set-offs, as was seen in a previous chapter,(g') provides that in such suits demands existing against their testators or intestates, and belonging to the defendant at the time of their deaths, may be set off by the defendant in the same manner as if the action had been brought by and in the name of the deceased. B^ the above 24th section of the same statute, (^g') whenever a set-off is established in a suit brought by executors or' administrators, the judgment shall be against them in their representative character, and shall be evidence of a debt estab- lished to be paid in the course of administration. The language of this latter provision extends to all suits brought by executors in which a set-off is established, including suits which' might also have been in- stituted in the name of the executor personally. The rule, however, is well established, as was stated in a previous chapter,(A) that in a suit by an executor or administrator, upon a cause of action which arose after the death of the testator or intestate, the defendant cannot set off a demand against the testator or intestate, even though it existed at the time of his death. (AA) The reason given is, that as the law existed previous to the Revised Statutes, a defendant, by such a set-off, might compel the payment of a simple contract debt in preference to a judg- ment or bond debt. And since the Eevised Statutes, such a set-off might, if the estate should prove insolvent, prevent a pro rata distribu- tion. Such would be its effect where a suit is brought by an executor, as such, to recover money received by the defendant since the death of his testator and belonging to his estate. If, in such case, the defendant is at liberty to set off a debt due him from the testator at the time of his death, he might succeed in obtaining payment of all his demand, when there were not suf&cient assets to pay all the creditors. The consequence would be the safiae if a defendant were allowed to set off his claim against the estate,, in a suit brought against him to recover money belonging to the estate, loaned to him by the executor. The 23d section of the statute above referred to, in its terms seems to be broad enough to admit a set off in all suits brought by executors and administrators ; but the construction which has been given to it by the courts is now too well settled to be questioned, and is clearly necessary, (/) The following section of the Code, which is inconsistent with this provision, and was probably overlooked in enacting the amendments, is of course to be deemed repealed. See. 154. If the answer contain a statement of new matter constituting a defence, and the plaintiff fail to reply or demur thereto within the time prescribed by law, the defendant may move, on a notice of not less than ten days, for such judgment as he is entitled to upon such statement, and if the case require it, a writ of inquiry of damages may be issued. ig) Qhap. 8, ante, p. 274. (gg) Ante, p. 274-5. (ft) Chap. 8, ante, p. (ftft) Z>ofe V. Gook, 4 John. Ch. Rep. 13; iJeoiv.ra^tor, 20 Johh. 13-^?-yv.£Vaas, SWend. 530; Mercein v. Smith, 8 Wend. 210; Ante, p. 275. 336 BRINGING AND CONDUCTING SUITS, ETC. as well since as before tlie Revised Statutes, to give effect to tlie policy of the law in regard to the distribution of estates. Thus, where the executor sued in his representative character on a promissory note made to him, describing him as executor for a debt due to the testator in his lifetime, and by his notice, subjoined to his declaration, made the note in question his only cause of action ; it was held that the plaintiff had a right to object to the allowance of a set-off of a claim against the testator in his lifetime, on the ground that the cause of action, in the form given to it by the consent of parties, arose after the death of the testator, (i) The result of the statute and of the cases would seem to be, that, in an action by an executor or administrator for a cause of action which arose previous to the death of 1,he decedent, the defendant may set off a demand existing against the decedent and belonging to the defendant at the time of the death of the decedent. By the 24th section of the statute, if a balance be found due to the defendant, the judgment for such balance will come in among other debts to be paid pro rata ia case of a deficiency. But if the action be for a cause of action which arose after the death of the testator or intestate, a set-off of a claim existing against him at the time of his death will not be allowed. The executor or administrator will be entitled to judgment for the whole of his demand, and the demand of the defendant will be a debt against the estate, to be paid in full or pro rata, according to the sufficiency ot the assets. In the first case, the balance due by the decedent at the time of his death is the debt against the estate, to be paid along with the other debts and in the same proportion. In the second, the debt owing by the deceased is the debt to be paid in the same manner, but the defendant is required to pay the demand which he owes to the executor or administrator. With respect to set-offs in actions against executors and adminis- trators, it may be remarked that an administrator who has purchased a judgment against a plaintiff, since the rendition of a judgment against him for a debt owing by the intestate, will not be allowed by the court, in the exercise of its equitable powers, to set off such judgment.(y) Of enforcing a Judgment obtained against an Executor or Administrator after a Trial at Law upon the Merits. The above section, numbered 32,(^) prohibits the issuing of an exe- cution upon a judgment against an executor or administrator, until an account of his administration shall have been rendered and settled, or unless on an order of the surrogate who appointed him. It further provides, that if an account has been rendered to the surrogate by such executor or administrator, execution shall issue only for the sum that shall have appeared, on the settlement of such account, to have been a just proportion of the assets applicable to such judgment.(i/<;) By the (i) Merritt v. Searmm, 6 Barb, Sup. Ct Rep. 330. (j) Hill's V. TaUmmi's Administrator, 21 Wend. 614. (k) 2 K. S. 88; 4th ed. p. 274; Ante, p. 321. (kk) This provision of the Revised Statutes is still operative. See Code, sec 471 1 dfcn- stead agt. VrederHmrgh and amlher, 10 How. Prac. Rep 217, per Harris, J. ENFORCING JUDGMENT OBTAINED AGAINST EXEOTJTOE, ETC. 337 above section, numbered 20, [sec. 19,](?) a creditor, wbo sball have ob- tained a judgment against an executor or administrator, after a trial at law upon the merits, may at any time thereafter apply to the surrogate having jurisdiction, for an order against such executor or administrator, to show cause why an execution on such judgment should not be issued. The judgment creditor to whom the order is to be granted,'must have obtained his judgment against the executor or administrator, after a trial at law upon the merits; a judgment obtained otherwise will not entitle the creditor to the order to show cause.(K) The next section provides for the issuing of a citation, requiring the executor or admin- istrator complained of, at a certain time and place therein to be named, to appear and account before the surrogate ; and directs that if, upon such accounting, it shall appear that there are assets in the hands of the executor or administrator properly applicable to the payment, in whole or in part, of the judgment so obtained, the.sm-rogate shall make an order that execution be issued for the amount so applicable. The proceeding to procure the order for the issuing of the execution, is by petition of the creditor to the surrogate, setting forth that he has obtained a judgment against the executor or administrator, after a trial at law upon the merits, stating the amount and date of the j udgment, and the court in which it was recovered, and praying an order that the executor or administrator show cause why an execution should not issue, and also a citation for him to account. On filing the petition, the order to show cause is made, and the citation issues. The order, and also an order for the issuing of the citation, must be entered in the surrogate's, minutes. (For forms of the application, orders and citation, see Appendix, No. 51.) The itumber of days' service of the order and citation which must be allowed, is not specified ; but as an account is required, and as the order to account is a thirty days' order, that number should probably be given. Disobedience to the order and citaljon may be punished by attachment. On the return day, the parties having appeared, the executor or ad- ministrator must submit an account of his proceedings, as far as he has advanced in the administration. It does not seem to be expressly re- quired that the account should be accompanied by vouchers. In anal- ogy with the rule prescribed by the Chancellor in Williams v. Purdy(m) and Gardner v. Garclner,{n) for the usual account rendered in the Sur- rogate's Court. The account should, however, doubtless be under oath. The justness and correctness of the account may be contested by the creditor, and witnesses may be examined as to the truth of any of the items or charges contained therein. The proceedings on the investiga- tion will be governed by the same rules which apply to the final set- tlement of an executor's or administrator's accounts. Such settlement forms, in part, the subject of a separate future chapter of this work ; (l) 2 R. S. 116; 4th ed. 301; Ante, p. 321. {U) See Davies v. Skidmore, 3 Hill, 603, per Bronson, J. (m) 6 Paige, 166. »■ («) 1 Id. 112. . 22 388 ENFORCING JUDGMENT OBTAINED AGAINST ESECUTOR, ETC. and, to avoid a repetition, the reader is referred to that chapter for the directions necessary for the present purposes, (o) It will be observed that the creditor, in the case under consideration is entitled to apply for an order to account immediately after having obtained his judgment, and, consequently, that these proceedings may take place within a short time after the appointment of the executor or administrator, and before he can have had an opportunity to ascertain by advertisement in the mode prescribed by law, all the claims against the estate. It has been seen that the statute regulating the publication by the executor or administrator of the notice for creditors to exhibit their claims, does not authorize such publication until at least six months after the granting of the letters testamentary or of administration,- and Requires such publication to continue for the space of six months. One year, then, from the date of his appointment, is the shortest time within which the executor or administrator can discover the extent to which the assets in his hands may be liable to creditors. It will be remem- bered, also, that the obtaining of the judgment against the executor or administrator, does not entitle the debt to any preference over others of the same class. Although, therefore, the account may show a large amount of funds in the hands of the executor or administrator, if there be any uncertainty as to the amount of outstanding liabilities, the sur- rogate will, in most cases, entertain some scruples as to ordering an execution. It is not perceived how, at an early stage of the adminis- tration, the executor or administrator, or the surrogate, can possibly de- termine whether there are assets properly applicable to the payment in whole or in part of the judgment, or not. The mere suggestion of a doubt on the point, would probably be sufficient to deter the ordering of an execution. If the application for the order be made previous to the expiration of a year from the time of the appointment of the exe- cutor or administrator, the surrogate will require the most conclusive proof on the part of the creditor, of the absolute sufficiency of the assets to warrant an execution for either the whole or such part of the judg- ment as may be insisted upon, before granting the order. If the year has elapsed^ there would seem to be less difficulty in the case. The executor or administrator's account will then show what claims have been presented under his notice ; and, the liabilities of the assets having been thereby ascertained, the amount applicable to the judgment can be determined with comparative accuracy. , In fixing such amount, allowance will have to be made for contingencies and future expenses of the administration. If, on being called upon, after the expiration of the year, to show cause why an execution should not issue upon a judgment obtained against him, the executor or administrator should allege that he had not yet advertised for claims, and that consequently the proportion of the assets applicable to the judgment could not be determined, the sur- rogate would at least throw the burthen of the proof upon him, and compel him to show that there were outstanding claims and insufficient assets ; and if the omission to advertise should cause an adjournment (o) See post, ch. 12. The form of the account will also he there found described. ENFORCING JUDGMENT OBTAINED AGAINST BXECUTOB, ETC. S39 of the matter, Hs authority ought to enable him to charge the executor or administrator personally with the expenses, as a penalty for such neglect of his proper duty. If in any way it should be satisfactorily established by the proceed- ings that there are assets properly applicable to the payment in whole or in part of the judgment, the surrogate will grant an order for the issuing of an execution for the amount so applicable, after leaving a sufficient proportionable sum in the executor's or administrator's hands to meet contingencies and future expenses of the administration. Such order should contain a summary statement of the account, showing the basis upon which the amount applicable to the judgment has been cal- culated and fixed. (For form of the order, see Appendix, No. 52.) Where the executor's accounts have been " rendered and settled" be- fore the surrogate, it is unnecessary to procure an order from the surro- gate to issue execution. The statute provides, in such case, Ihat the execution shall issue only for the sum that shall have appeared on the settlement of such account, to have been a just proportion of the assets applicable to the judgment." Therefore, where the amount of assets is less than the amount of the judgment, it is irregular to issue execu- tion for the whole amount of the debt.(oo) The execution will direct the money to be levied of the goods, &c., of the testator or intestate. (^) It will be governed by the same rules, as to the time at which it may be issued, and as to its return, as pre- vail in respect to other executions in the court in which the judgment may have been recovered. The next section, numbered 22, [sec. 21,] enacts, that the order for the issuing of the execution shall be conclusive evidence of the suffi- ciency of the assets to the extent allowed to be levied ; and the 23d section [sec. 22,] provides for the granting of further orders, and the issuing of further executions in cases where the same may be necessary and proper, (pjj) {oo) iilmsiead agt. Vrederiburgh, 10 Howard's Prac Rep. 2 1 5, (p) Where judgment is obtained against the personal property of a deceased debtor, and the execution is issued against his executors, describing thena in their representative oapar city, such d35criptiou alone is insufflcient to prevent the sheriff from levying upon the in- dividual property of the executors. Where, in such ease, it is intended to collect the amount out of the assets in the hands>of the executors, the execution^ under sec. 289 of the Code of Procedure, should require the officer to satisfy the judgment out of the property which, according to the judgment, is liable fot its payment. Ohnslead agt. Vredenhargh and another, Executors, Sec, 10 Howard's Prac Kep. 215. (pp) The sections thus considered are isk&n from, and, in a degree, are conformable to, the rules which prevailed in courts of law previous to the Revised Statutes, relative to the pro- secution of suits against executors and administrators. The plaintiff, if he recovered, ob- tained judgment and had execution awarded for the whole amount of his debt, if the assets remaining in the hands of the executor or administrator were sufficient ; and if the assets were insufficient, then provision was made for reaching future assets. The judgments aga,in3t the executor or administrator had preference according to the priority of time in which they were respectively recovered, and the first might sweep away all the property. (See Wms. on Exrs., book 2, chap. I ; 1 R. L. 1813, 315.) Although this system of preferential admin- istration was essentially abolished by the plan proposed and adppted in the Revised Statutes, the revisers seem to have been unable entirely to divestthe new provision of the accustonied machinery by which it was conducted, and remnants of it, inconsistent with the general scope and object of the reformed system, and which are to be found in the 31st section, 2 R. S. 8d, already treated of in these sections and iri others, were permitted to linger in the rules which they introduced. 840 ENFORCING JUDGMENT OBTAINED AGAINST EXEOUTOE, ETC. Besides the proceedings under the sections thus considered, the credi- tor who has obtained a juagment against an executor or administrator, after a trial at law upon the merits, has a remedy for the collection of his j udgment after six months shall have elapsed from the granting of the letters testamentary or of administration,, under the above recited 18th section of the " act relative to the rights and duties of executors and ad- ministrators,"(5) which will presently be more fully treated of. He may also, after the expiration of eighteen months from the granting of the letters, compel the executor or administrator to render an account and distribute the assets, under the provisions of the statutes regulating the rendering and settling of the accounts of executors and administrators^ likewise above referred to, and which also will be hereafter discussed; Of en.forard^f. Lord Daray, Plowd. 184; Dyer, 2 a, in marg., as to an executor; and Warner v. Wainford, Hob. 127 ; Bond v. Green, 1 Brownl. 15; S. C, Godb. 217, pi. 310, as to an administrator ; Wma. on ISxrs. 894. (oo) 2 R. S. 88 ; 4th ed. 274. {p) 2 R. S. 90 ; 4th ed. 274. (g) 3 R. and or. S. (2d ed.) App. 642. ADJUSTMENT AND RETAINER OF DEBTS, ETC. 359 tieir own claims, until they come before the surrogate on a final ac- counting. The Statute of Limitations, however, will run against a claim of an executor or administrator, against the estate of the decedent, the same as against the claim of any other person.(r) In order to save the statute, therefore, it may be necessary for the executor or administra- tor to take proceedings for the proof of his claim at an earlier stage of the administration, and the 37th section of the law of 1837, above quoted, provides the requisite facilities for the purpose. By that section, if the executor or administrator purpose to prove his debt or claim before the final accounting, he must take out a citation for that purpose, to be directed to the proper persons. The language of the section is vague, and it is difficult to determine upon any precise course of practice under it. The proper persons to whom the citation is to be directed, must be all persons interested in the estate. Neither the number of days' service of the citation which must be given, nor the manner of the service is prescribed. It is presumed that if it should appear that any of the proper persons reside out of this state, that would be a great obstacle in the way of proceedings under the section to prove a claim. If the executor or administrator deem it advisable to apply separately for the proof of his alleged claim, he should present a written petition to the sv.rrogate, stating the amount and circumstances of the claim proposed to be proved, and the correctness of the same, the names of all persons interested in the estate, their residences, and if any of them be minors, that fact ; and whether such minors have or have not gene- ral guardians, and the name and residence of the general guardian of any minor, and praying a citation pursuant to this section. The sur- rogate will give the necessary directions relative to the service of the citation. They should be included in the order for issuing the same. (For forms of the application, order and citation, see Appendix, No. 56.) Before taking any testimony in the matter, the surrogate will re- quire evidence of the due service of the citation on all the parties in in- terest. On the day named in the citation for the proof, on such evi- dence being produced, an examination respecting the claim may be gone into, and the same may thereupon be adjusted and allowed. The occasion of the final settlement of the executor's or administra- tor's account, when all the parties are before the surrogate, is the time best adapted for this investigation relative to the executor's or admin- istrator's debt or claim, and, as has been stated, it is usually deferred to that period If there be a deficiency of assets to pay the debts, or any difficulty in the distribution, the executor or administrator will re- fuse to pay final dividends until on a decree of the surrogate after a settlement of his accounts. He will ascertain and pay dividends or legacies, or distributive shares, before such settlement, with reference to a proper amount to meet his own claim to be allowed on its adjust- ment, and can in few instances suffer any prejudice by the delay, nor can any other party-be injured by such postponement of the proof and allowance of his debt. This subject will, of course, be again adverted (r) jPreai v. Forime, 2 Brad£ Sun. Eep. 116. 360 OF LEGACIES AND THE PAYMENT AND DISCHARGE THEEEOF, ETC. to in connection witli the Settlement of the executor's or administrator's account, and the reader is referred to that portion of this work where such settlement is treated of, for further particulars respecting the proof and allowance of the executor's or administrator's claim.(s) CHAPTER XI. OP LEGACIES AND THE PAYMENT AND DISCHARGE THEREOF; OF ENFOR- CING THE PAYMENT OF LEGACIES, AND OF DISTRIBUTION IN CASES OF INTESTACY. Having thus considered the office of an executor or administrator, in regard to the payment of debts according to the order prescribed by law, it now becomes necessary to treat of the duties which next demand his attention, viz., those which respect the payment of lega- cies. A legacy is defined to be " some particular thing or things given or left, either by a testator in his testament, wherein an executor is ap- pointed, to be paid or performed by his executor, or by an intestate in a codicil or last will, wherein no executor is appointed, to be paid or performed by an administrator."(a) The duties and liabilities of an administrator with the will annexed, are therefore the same as those of an executor, in respect to legacies. Indeed, by statute, (6) it is expressly provided that " In all cases where letters of administration with the will annexed shall be granted, the will of the deceased shall be observed and performed; and the admin- istrators with such will, shall have the rights and powers, and be sub- ject to the same duties, as if they had been named executors in such will." In treating, then, of the subject of legacies, whatever may be said of executors, applies to administrators with the will annexed also. Who is capable of being a Legatee. By statute,(e) as has already appeared, " If any person shall be a sub- scribing witness to the execution of any will, wherein any beneficial devise, legacy, interest or appointment of any real or personal estate shall be made to such witness, and such will cannot be proved without the testimony of such witness, the said devise, legacy, interest or ap- pointment, shall be void, so far only as concerns such witness, or any claiming under him." " But," by the next section, " if such witness would have been entitled to any share of the testator's estate, in case the will was not established, then so much of the share that would have descended, or have been distributed to such witness, shall ba (sj See post, oimp. 12. (o) Godolph, pt. 3, oh. 1, see. 1 ; 'Wma. on Exrs. 905. (6) 2 R. S. 72, see. 22. See ante, p. 230 ; 4th ed. 258. (c) 2 R. S. 65, sec. 50; Ante, p. 153. WHO IS CAPABLE OP BEING A LEGATEE. 361 saved to him, as will not exceed the value of the devise or bequest made to him in the will." This seems to be the only distinct statutory- provision disabling any person from being a legatee. The case of Caw agt. Robertson,{d) was a decision upon this statute. In that case there were three subscribing witnesses, all of whom had legacies by the will. The surrogate, very properly it was considered, called the witnesses in the order in which their names were subscribed. The proof of the will was not contested, and the first two witnesses having testified to all the facts and circumstances requisite to the es- tablishment of the will, the third was then sworn only " to testify as to the questions which should be put to him by the surrogate, touching the circumstances of the executing the said will, and ■ how his name came to be attached to said will as a witness." His answers to the questions put after having been thus sworn, were not such as to tend to the proof of the will, and the surrogate did not regard him as an attesting witness, and decided that he need not be sworn as such, and the certi- ficate of the surrogate stated that the will was proved by the oaths of the other two witnesses. The will was admitted to probate by the sur- rogate, and the third witness claimed his legacy. The Court of Ap- peals after — adverting to the former provisions of the Eevised Statutes relative to the number of witnesses requisite to be examined for the proof of the will, and after considering the tenth and eleventh sections of the law of 1837, providing that " two at least of the witnesses to such will, if so many are living in this state, and of sound mind, and are not disabled from age, sickness or infirmity, from attending shall be produced and examined ;" and that "in case the proof of any such will is contested, and any person having the right to contest the same shall, before probate made, file with the surrogate a request in Avriting that all the witnesses to such will shall be examined " — determined, that undel- these provisions of the statute, there is not any neces- sity for examining more than two witnesses who satisfactorily prove the will, unless the proof is contested by some one having the right to do so, and that as the proof of the will in question was not contested, and as the evidence of the first two witnesses furnished the requisite satisfactory proof of the will, and the time for appealifig from the sur- rogate's decree establishing the will had expired, the person whose name was subscribed to the will as the third attesting witness, was entitled to the legacy bequeathed to him by the will. It is laid down in the English books that an alien friend may be a legatee of personal chattels ; but any legacy to an alien enemy will be forfeited to the king.(e) _ It may be observed, that although a man cannot make a grant to his wife, nor enter into a covenant with her, (for such a grant would be to suppose her separate existence, and to covenant with her would be to covenant with himself;) yet he may bequeath anything to her by will ; since that cannot take effect till after the coverture is determined by death.(/) (d) 1 Seld. 125. (a) Wms. 906. if) 1 Black. Comm. 442 ; Co. Litt. 112; Wms. on Exra. 908. The third section of the 362 0^ BEQUESTS TO CHAEITABLE USES. Of Bequests to Charitable Uses. In England it is said all bequests to superstitious uses are illegal and void, but bequests to charitable uses are not only legal and valid, but are, in some measure, favored in our law, provided that tbey are of per- sonal property in no way connected with land.(jf ) With respect to bequests to charitable uses, by the law of England, testamentary dispositions to charitable or public purposes, of money or other personal estate, not connected with real property, are valid. But •with regard to bequests of land, or affecting land, it is enacted by the Statute of Mortmain, 9 Geo. ll, ch. 3.6, " That from and after the 24th June, 1736, no manors, lands, tenements, rents, advowsons or other hereditaments, corporeal or incorporeal, whatsoeveir, nor any sum or sums of money, goods, chattels, stocks in the public funds, securities for money or any other personal estate whatsoever, to be laid out or disposed of in the purchase of any lands, tenements or hereditaments, shall be given, granted, aliened, limited, released, transferred, assigned^ or appointed, or any ways conveyed or settled to or upon any persoa or persons, bodies politic or corporate, or otherwise, for any estate or interest whatsoever, or any ways charged or incumbered by any per- son or persons whatsoever, in trust, or for the benefit of any charitable uses whatsoever, unless such gift, &c,, of any such lands, &c., (other than stocks in the public funds,) be and be made by deed, indented, sealed and delivered, in the presence of two or more credible witnesses, twelve calendar months, at least, before the death of such donor or grantor, including the days of the execution and death, and be enrolled in his Majesty's High Court of Chancery within six calendar months next after the execution thereof; and unless such stocks be transferred? in the public books usually kept for the transfer of stocks, six calendar months, at least, before the death' of such donor or grantor, including the days of the transfer and death, and unless the same be made to take effect in possession for the charitable use intended, immediately from the ma- king thereof, and be, without any power or revocation, reservation, trust, condition, limitation, clause or agreement whatsoever, for the benefit of the donor or grantor, or of any person or persons claiming under him." The second section provides that such limitations, &c., shall not be construed to extend to any purchase or transfer made for valuable consideration. The third section then enacts, " That all gifts, grants, conveyances, appointments, assurances, transfers and settlements act " for the more e£fectual protection of the property of married women," as amended, (S. L 1848, 308 ; 1849, 528 ; 2 R. S 4th ed. 331,) provides that " any married female may take by inheritance, or by -gift, grant, devise or bequest, from any person other than her husband, and hold to her sole and separate use, and convey and devise real and personal property,, and any interest or estate therein, and the rents, issues and profits thereof in the same man- ner, and with like effect as if she were unmarried, and the same shall not be subject to the- disposal of her husband, nor be liable for his debts." By the strict legal as well as •gram- matical construction of this language, a married woman is prevented, from taking from her husband by devise or bequest, as well as by gift or grant. But the case is like that statea in the text, when the devise or bequest from her husband takes effect, if the expression may be allowed, she is not a married female — ^the person from whom she takes the devise or be- quest is not her husband. (f) Wms. 908. OF BEQUESTS TO CHARITABLE USES. 363 whatsoever, of any lands, tenements or other hereditaments, or of any estate or interest therein, or of any charge or incumbrance affecting, or to affect, any lands, &c., &c., to or in trust for any charitable uses what- soever, which shall, at any time, from and after, &c., be made in any other manner or form than by this act is directed and appointed, shall be absolutely, and to all intents and purposes, null and void." The uses and purposes which the law deems charitable so as to be subject to the restriction of the statute, are pointed out by the statute commonly known as the Statute of Charitable Uses, 43 Eliz. ch. 4. That statute after reciting that lands, goods, money, &c., had been given, &c., heretofore, to certain purposes, (w hich it enumerates in detail,) which lands, &c., had not been employed according to the charitable intent of the givers and founders, by reason of frauds, breaches of trust and neg- ligence, in those that should pay, deliver and employ the same, pro- ceeds to enact, that it shall be lawful for the Lord Chancellor, &c., to award commissions under the great seal to proper persons, to inquire by juries of all and singular such gifts, &c., breaches of trusts, &c., in respect to such gifts, &c., heretofore given, &c., or which shall hereafter be given, &c., to or for any, the charitable and godly uses before re- hearsed : and upon such inquiry to set down such orders, judgments and decrees, as the lands, &c., may be duly and faithfully employed to, and for such charitable uses before rehearsed, for which they were given ; which orders, judgments and decrees, not being contrary to the orders, statutes or decrees of the donors and founders, shall stand firm and good, according to the tenor and purpose thereof, and shall be executed accordingly, until the same shall be undone and altered by the Lord Chancellor, &c., upon complaint by any party grieved to be ■ made to them." The statute further provides for certain excepted cases, and for the enforcement of the judgments and orders of the com- missioners, and also for certain proceedings before the Lord Chancellor, in the nature of an appeal by a party deeming himself aggrieved from the judgments of the commissioners. In this statute, gifts for relief of aged, impotent and poor people, for maintenance of sick and maimed soldiers and mariners, for ease of poor inhabitants concerning payment of taxes, for aid of young tradesr men, handicraftsmen, and persons decayed, for relief, stock and main- tenance of houses of correction, for marriages of poor maids for educa- tion and preferment of orphans, for schools of learning, free schools, and- scholars in universities, for relief or redemption of prisoners or captives, for repair of bridges, ports, havens, causeways, churches, sea banks and, highways, are enumerated as charitable uses. Bequests to any of the. ■ purposes specified in the last mentioned statute, or to any purpose of a similar nature,(gr) are considered as bequests to charitable uses, within the Statute of Mortmain, 9 Geo. II, ch. 36. The question as to the validity of bequests to charitable uses, aside from any objection on the ground of a, perpetuity or the illegality of the trust, arises, in most cases, out of the uncertainty or indefiniteness'which must, from the nature of the object or supposed object in view, neces- (?) See Twmery. Ogden, 1 Coz. 311. 364 OF BEQUESTS TO CHARITABLE USES. sarily exist as to fhe persons intended to be benefited- by the testator's bounty : And unless there is an authority provided for ascertaining the beneficiaries intended, and enforcing the application of the bounty to the purposes and in the manner directed by the testator, such bequests must be inoperative and void. The terms used in indicating the per- sons intended to be benefited by the legacy usually are general, and describe a class or number of individuals in some paxticjilar conditioa, A bequest for the benefit of the " poor of a certain town" refers " to a class of persons to come into existence from time to time, not by inher- itance, or any order of succession defined by law, but who are ascer- tained only by their answering the description mentioned. Such a line of succession, not being known or recognized by the ordinary rules of law, cannot be made the channel for the perpetual transmission of the legal or beneficial ownership of property, unless by force of that pecu- liar system of law, known in England under the name of the law of charitable uses." According to the law of England, as understood at the time of the American Eevolution, and as it exists at this day, conveyances, devises and bequests for the support of charity or religion, though defective for the want of such a grantee or donee as the rules of law require in other cases, would (when not within the purview of the mortmain act) be sup- ported and established in the Court of Chancery. (A) In the numerous discussions upon charitable gifts which have taken place in the courts of the United States, it has been uniformly assumed that the English doctrine, to the effect above stated, was well settled in that country, and was constantly acted upon there, while this state was an English colony.(i) By the 17th section of the first article of the constitution of this state, such parts of the common law and of the acts of the Legisla- ture of the colony of New York, as, together, did form the law of the said colony on the nineteenth day of April, one thousand seven hun- dred and seventy-five, and which have not since expired or been re- pealed or altered, are and continue the law of this state, subject to, such alterations as the Legislature may make concerning the same. But all such parts of the common law, and such of the said acts, and others, or parts thereof, as are repugnant to the constitution, are de- rogated.(y) _ Having adopted the common law of England so far as it was appli- cable to our circumstances and conformable to our institutions, the law of charitable uses, says Mr. Justice Denio, in Williams v. Williams,{k) is in force here, unless, first, it was established by an English statute ' which has been abrogated ; or, secondly, unless there is something in the system repugnant to our form of government ; or, thirdly, unless it can be shown by the history of our colonial jurisprudence that it was not in Qi) Case of Ghrisfs College, Cambridge, 1 Wm. Blackstone's Rep. 90 ; Moggridgey. Thrnk- well, 1 Ves. 36. {i) Baptist Association v. Sari, 4 "Wheat. 1 ; Inglis v. The Sailors' Snug Harbor, 3 Petera, 99; Orphan Asylum v. McCariy, 9 Cow. 431 ; Going v. Emery, 16 Pick. lOT; VidalY. W raa-d's Examlors, 2 Howard, 127 ; Didch Chwrch in Garden Street v. Mott, 1 Paige, 11 ; Sxeo titers of Burr v. Smith, 1 Verm. 241. U) Const. 1846, art. 1, sec. 11 ; Const. 1820, art. 1, seo. 13; Const. 1111, art. 35. (ft) Not yet reported. Decided December, 1853 OF BEQUESTS TO CHARITABLE USES. 865 force here prior to the Eevolution ; or, lastly^ unless it has heen abolished by the Revised Statutes.(Z) By the act for the amendment of the law and the better advancement of justice, passed 27th February, 1788,(m) the Statute of Charitable Uses, 43 Elizabeth, ch. 4, and also the Statute of Mortmain, 9 Geo. II, ch. 36, were repealed. If the law of charitable uses originated in and was cre- ated by the Statute of Elizabeth, that law, since the repealing act of 1788, ceased to have force or existence in this state, and such has been the position contended for in the cases by those resisting an alleged charitable donation. This question was fully examined by Mr. Justice Denio, in the case mentioned, of Williams v. Williams, and the conclu- sion arrived at by him was, "that the law of charities was, at an in- definite but early period of English history, engrafted upon the common law ; that its general maxims were derived from the civil law, as modi- fied in the later periods of the empire by the ecclesiastical element in- troduced with Christianity ; and that the Statute of Charitable Uses was not introductory of any new principles, but was only a new and less dilatory and expensive method of establishing charitable donations, which were understood to be valid by the laws antecedently in force." And the learned justice further considered, that the repeal of the Eng- lish Statute of charitable Uses has no just influence upon the law of charities here, and that there is nothing in the situation or circum- stances of this country, or in our form of government, which renders ^ the general principles of the law of charity, as understood in England, inapplicable to us." The English Court of Chancery continually refers to the Statute of Elizabeth, to ascertain whether the trust is such an one as it ought to execute. This enumeration is taken as a safe general • guide, and such gifts as fall within the description, and such others as bear an analogy to them, are held to be valid. " In this country," says Mr. Justice Denio, "the question whether a gift to a particular purpose is a valid charitable gift, is to be resolved by a reference to the determinations of the English Court of Chancery, whether that court reposed itself upon the parliamentary defiuition, or arrived at its judgments in any other manner." " I do not think it was ever said by any English judge, that the proceeding in charity cases, by information, was authorized by, or founded upon the statute. I concede that the English doctrine is in force here, only so far as it is adapted to our political condition. In that class of cases, therefore, where the gift is so indefinite that it can- not be executed by the court, and where the purpose is illegal and im- possible,_ the claim of the representatives of the donor must prevail over the charity. The reason is, that we have no magistrate clothed with (Z) Kent's Commentaries, 472, 473, and note (a) to 5th ed. ; Bogardus v. 'Trinity Church, 4 Paige, 198; Canai Commissioners v. The People, 5 Wend. 445 ; Boehm v. Engle, 1 Dall. IS- Attorney- General v. Stewart, 2 Merivale, 162 ; Ayres v. T}ie Methodist Chv/rch, d:c., 3 Sandf Sup. Ct. R. 368. ' (m) Chap. XLVI. An act for the amendment of the law, and the better advancement of justice, passed 27th February, 1788. The repealing section of this statute is as follows: XXXVII. And be it further enacted by the authority aforesaid, That from and after the first day of May next, none of the statutes of England, or of Great Britain, shall operate or be considered as laws of this state. 2 Jones & Varick, 269, 282 : See 1 R L 1813 526 spf 30; 2R. S. 779; 4thed. 976, sec. 3. ' ' .' ' °''""- 366 OF BEQUESTS TO CHARITABtB tTSES. the prerogatives of the crown, and our courts of justice are entrusted only with judicial authority. Where the gift is capable of being exe- cuted by a judicial decree, I know of no reason why the court sbonld refuse to execute it. It is unnecessary to decide in this case whether we could proceed upon the notion of approximation^ where it is impos- sible to execute the gift substantially according to the grant or devise. My own opinion is, that the distribution of powers among the great de- partments of the government, which is a fundamental doctrine in the American systems, would forbid to the courts the exercise of a jurisdic- tion so purely discretionary." The question whether the law of charitable uses was abrogated by the provisions of the Eevised Statutes prohibiting perpetuities, is also examined by Justice Denio in the opinion of the court in Williams v. Williams. The title of the Revised Statutes relative to the "accumulations of personal property and of expectant estates in such property," provides as follows: Sec. 1. The absolute ownership of personal property shall not he suspended, by any limitation or condition whatever, for a longer period than during the continuance and until the termination of not more than two lives, in being at the date of the instrument containing such limit- ation or condition : or, if such instrument be a will, for not more than two lives, in being at the death of the testator. Sec. 2. In all other respects, limitations of future or contingent in- terests in personal property, shall be subject to the rules prescribed in the first chapter of this act in relation to future estates in lands. Sec. 3. An accumulation of the interest of money, the produce of stock or other income, or profits arising from personal property, may be directed by any instrument sufficient in law to pass such personal property, as follows : 1. If the accumulation be directed to commence from the date of the instrument, or from the death of the person executing the same, such accumulation must be directed to be made for the benefit of one or more minors then in being, or in being at such death, and to terminate at the expiration of their minority. 2. If the accumulation be directed to commence at any period sub- sequent to the date of the instrument, or subsequent to the death of the person executing such instrument, it must be directed to commence within the time allowed in the first section of this title for the suspen- sion of the absolute ownership of personal property, and at some time during the minority of the persons for whose benefit it is intended, and must terminate at the expiration of their minority. Sec. 4. All directions for the accumulation of the interest, income or profit of personal property, other than such as are herein allowed, shall be void ; but a direction for an accumulation, in either of the cases specified in the last section, for a longer term than the minority of the persons intended to be benefited thereby, shall be void only as respects the time beyond such minority, (n) These provisions, it was considered in the judgment referred to, do (n) 1 E. S. 11Z-i; 4th ed., 2d voL 183-4. OP BEQUESTS TO CHARITABLE USES. 367 not apply to bequests for charitable purposes. " But in the absence of a corporation, I am of opinion," says Mr. Justice Ifenio in that case, "that charitablu gifts, from their nature, are excepted from the law against perpetuities." " The result of my examination of the case," the learned justice con- cludes, "is, that the law of charitable uses, as it existed in England at the time of the Eevolution, and the jurisdiction of the Court of Chancery over these subjects, became the law of this state on the adoption of the constitution of 1777 ; that the law has not been repealed, and that the existing courts of this state having equity jurisdiction are bound to ad- minister that law." In the case in question, the provision in the will of the testator was as follows: With a desire to raise the standard of intellectual and moral improvement among the poor, I constitute and appoint Zophar B. Oakley, John Wood and Charles Sturges, of the village of Hunting- ton, and their successors, to be appointed in the manner hereinafter authorized, a board of trustees of a fund which I hereby constitute for the exclusive education of the children of the poor ; and in order to main- ■ tain the number of the said trustees in perpetuity, I hereby authorize the surviving or remaining trustees to fill up any vacancy as often as it shall occur by death, resignation, or removal from the village of any of the said trustees, by the choice of another, to be entered upon the minutes of their proceedings. I give and bequeath to the above named ' trustees and their successors, appointed as aforesaid, the sum of six thousand dollars, in trust, for a perpetual fund for the education of the children of the poor, who shall be educated in the academy in the vil- lage of Huntington ; or, in case of the destruction of the academy by fire or otherwise, then in the school next west of the academy until it shall be rebuilt. No part of this fund ever to be appropriated to the erection or repair of buildings. It is my will that this fund shall be managed in manner following, to wit : The principal to be loaned on bond, secured by mortgage of lands of twice the value of the sum loaned, and one-half of the interest annually accruing to be added to the princi- pal until the whole fund amounts to the sum of ten thousand dollars. The other half of the interest to be appropriated and expended in the education of the children of the poor ; and when the said fund, by the addition of the interest as aforesaid, shall amount to the said sum often thousand dollars, then it is my will that the whole interest of 'the said fund shall be annually appropriated and expended in the education of the children of the poor in the academy in the village of Huntington," and the Court of Appeals, overruling a judgment of the Supreme Court, declared the bequest valid and effectual. . The law relative to bequests to religious corporations, was also a subject of discussion in the same case. At common law a corporation could always take a bequest of such personal property as it could law- fully acquire by any other mode of purchase.(o) By the fourth section of the act " To provide for the incorporation of religious societies, "(p) the trustees of every church congregation or society, are authorized (o) Angel and Ames on Corp. p. Ill, sec. 6; In the Matter of Bowe, 1 Paige, 214; McGa/rty V. Orphan Asylum Soc, 9 Cow. 437. (p) Passed April 5, 1813, sess. 36, chap. 60, 1 R. S. (4th ed.,) 11T9-81. 368 OF BEQUESTS TO CHARITABLE USES. and empowered to take into their possession and custody all tlie tem- poralities belongmg to sucli church, congregation or society, whether the same consist of real or personal estate, and 'ivrhether the same shall have been given, granted or devised directly to such church, congrega- tion or society, or to any other person for their use ; and also by their corporate name or title to sue and be sued in all courts of law or eqtdty, and. to recover, hold and enjoy all the debts, demands, rights and privi- leges, and all churches, meeting-houses, parsonages and burying jDlaoes, with the appurtenances, and all estates belonging to such church, congregation or society, in whatsoever manner the same may have been acquired, or in whose name soever the same may be held, as fully and amply as if the right or title thereto had originally been vested in the said trustees ; and also to purchase and hold other real and personal estate, and to demise, lease and improve the same for the use of such church, congregation or society, or other pious uses, so as the whole real and personal estate of any such church congregation or society, with the exception of three churches in the city of New York, and one in the city of Albany, shall not exceed the annual value or income of three thousand dollars. Whatever may be the construction of the terms " other pious uses," contained in this section, the right of a re- ligious corporation to take and hold property, it was considered by Mr. Justice Denio, clearly extends to such as may be necessary within the ■specified limit, for the purposes of the church, congregation or society, and he approves the doctrine of the Chancellor, In the Matter of Howi,{(i) that a testator has a right to limit his bounty to a church, to a part of the objects to which the corporation may appropriate its general funds. The provisions of the Eevised Statutes which have been above quoted, relative to the accumulations of personal property, &c., pro- hibiting perpetuities of personal estate, do not, it is held in the opinion of Mr. Justice Denio, in the case thus so often referred to, apply to bequests for the benefit of religious corporations organized under the statute. Such corporations were, before the Revised Statutes, author- ized to hold real and personal estate in perpetuity, contrary to the gen- eral principle of law, and that power was not taken away by the Ke- vised Code. The object of this class of corporations being to perpetuate the uses of the property acquired by them, it necessarily follows that it is legal for a donor to prescribe by way of limitation or condition, that his particular gift shall be kept and preserved so as to subserve the purposes which the corporation was created to promote, and that it shall not be wasted, alienated, or otherwise misappropriated. It is no more than to declare that the property shall be devoted to the objects which the Legislature had in view, in providing for the corporate ex- istence of the grantee. " In my judgment," says the learned justice, in the same opinion already quoted at so great a length, " the provisions of the Revised Statutes respecting trusts, perpetuities and the limita- tion of future estates, were devised to restrain the natural propensity of mankind to perpetuate their estates in their families and among the descendants of themselves, and their relatives and friends ; a propensity (q) 1 Paige R. 214. OF BEQUESTS TO OHAEITABLB USES. 369 wWch the laws of the mother country have allowed, to an extent which could not be tolerated in a purely representative goTernment, where a degree of equality in social condition is indispensable. I think these provisions were not designed to, and do not at all affect conveyances or testamentary gifts to religious or charitable institutions." In the case in question the bequest was as follows : — " I give and bequeath the trustees of the Presbyterian church and congregation in the village of Huntington, and their successors, in trust for the support of a minister of the said church, as now constituted, the sum of six thousand dollars, to be managed in manner following, to wit : the prin- cipal to be loaned on good landed security of twice the value of the sum loaned, and one-half of the interest annually accruing to be an- nually applied to the support of the gospel minister in said church, as now constituted." It was provided that a pew, free of rent in the church, should be reserved for the use of that part of the testator's family which might reside in Huntington. No part of the fund was to be applied to building or repairing the church ; and any diversion of the fund from the purposes for which it was given, was to operate as a forfeiture in favor of his residuary legatee. With respect to this particular bequest it was held, that assuming that the provision in the title of the Eevised Statutes, above recited,(r) forbidding accumulations of the interest of money or the income of personal property, except for the benefit of and during the minority of children, applied, to the bequest under consideration, still this did not render the legacy wholly void.(s) A will may be void as to part, for some illegality or violation of law, and valid as to the "residue. The language of the fourth section is, that ail directions for the accumulation of the interest, income or profits of personal property, other than such as are herein allowed, shall be void." " It is the direction only," says the learned justice, " which is void. Being void it would seem that it should be stricken out of the will ; and if that were done in this case, the legacy and the general purposes for which it was given would re- main. The six thousand dollars is not given for the purpose of accu- mulation, but ' for the support of a minister of the said church.' The direction for accumulation is among the provisions touching the man- agement of it. As it is found to be illegal to manage it in the way in- dicated in all respects, it is still to be loaned in the manner directed, and the whole income is to be applied according to the general purpose pointed out. If the direction for accumulation required, or would oc- casion an illegal suspension of the absolute ownership, the whole pro- vision might be void ; but having determined that there is nothing ille- gal in the duration of the estate, what is said respecting accumulation is simply a direction which the testator had no right to give, and which, according to the mandate of the statute, is to be held void." "The statute," continues the learned justice, "makes it the duty of the courts to carry into effect the intention of the testator, so fir as it is consistent with the rules of law. It is clear that -he intended to give the $6,000 to the church, for he says so in so many words, and although (it) AnU, p. 366 ; 1 R. S. YT3-4; 4th ed. (2d vol.) 183-4. (s) Kamv. Gott, 24 Wend. 64J, 665. 24 3Y0 0^ BEQUESTS' TO CHARETABLI! TJSM, he also intended the church should accumiilate a part of the interest fbrs time, for its own benefit, we have no warrant for saying that he would have withheld the gift had he known that the direction to accumulate was illegal. In Slade v. IIolford{t) a direction for accumulation in a will was held void ; but the devisee whose estate was made subject to the direc- tion to accumulatef was held to take it absolutely. («ii) It seems to he settled in the Superior Court, that where there is an authorized trust connected with an illegal direction for accumulation, the party for whose benefit the accumulation was directed is entitled to the. current income, as though nothing had been said respecting accumulation.(?;) In Be Kay v. Irv%ng,{w) where there were successive trusts of land making together a limitation beyond the period allowed by the statute, it was held by the Court for the Correction of Brrors^ that the first part^ which was for the life of a person in being, was valid and the residue only void. Root V. Stuyvesantfipa) was decided on the ground that the power given to- the devisee for life, to make leases for sixty -three years, was BO important a feature in the testator's scheme, as made it quite certain that he would have made a different, disposition of the property had he known that such a power was illegal. This was determined by a di- vided vote, against the opinion of all the judges. Still it is a precedent for similar cases ; but not for such an one as the present, where the part of the testamentary provision which is left,, is quite consistent with the testator's general intention. " Upon this part of the case, I am of opinion that the bequest to the church is valid, and that so much erf the bill as relates to this legacy, should be dismissed." In Goggeshall v. Pelton,{y) before Chancellor Kent, a legacy to the town of New Rochell'e, for, a particular purpose expressed, in the will, it being a public charity, and the object declared, though there was no trustee named, yet the legacy was held to be valid ; and the gift was carried into effect as a gift to a charitable use, in the exercise of the common law powers and jurisdiction of the court. In King v. Woodhull,(z) the testatrix gave and bequeathed a residue, provided the same did not exceed one thousand dollars, " to the Ame- rican Home Missionary Society, to be paid upon the receipt of the treasurer of the said society for the time being." The society was un- iQcorporated, but the Vice- Chancellor, not without some misgivings, however, decreed the validity of the legacy. In Wright and others v. Trustees of the Methodist Episcopal Ghurch,{a) one of the legatees of the residue was " the yearly meeting of Friends in New York," and was proven to b,e composed of members of the Society of Friend^s living in Vermont, New York, part of Massachusetts, and Tipper Canada ; it ■was held that the bequest was valid, and payment could be made tff (t) 1 Wm. Blaokstone'a R. 428. («) See 3d Burr. 1416, S. G. And see, alao, TTumpsmy. Thompson, 1 Collier,. 381, 480, (v) Lang v. Bopke, 5 Sandf. S. 0- R. 363, 391.- (w) 5 Denio, 646. . {x) 18 Wend. 251. (y) 1 John Oh. R. 292. («) 3 Edw, Oh. R. Id. (ft) 1 Hoff. Oh. R. 205, GENERAL RULES OF CONSTRUCTION OF WILLS. 371 the treasurer or clerk in office at tlie time. And in Banks v. Phelan,Q)) the court considered the legality of bequests for pious and charitable uses, for the benefit of unincorporated societies, well established in this state, and decreed the payment of a legacy of three thousand dollars, " to the Roman Catholic church of Petersburg in the state of Virginia," an unincorporated society.(c) Of the General Rules- of Construction of Wills. It is obviously not within the scope of this work to enter fully into the general doctrine of the construction of wills. It may, however, be useful to state briefly some of the most important rules which have been established upon this subject. 1. Technical words are not necessary to give effect to any species of disposition.(cZ) Therefore, where the testator used the words " all my personal estates," and it was clear, beyond all doubt, upon the face of the will, that the testator meant by these words, not what is technically understood by them, but the real property over which he had an abso- lute personal power of disposition, it was holden that the freehold passed by this description. (e) So, on the other hand, if on the whole will it clearly appears that the testator's intention was to bequeath leasehold property, in which he had a chattel interest only, under the description of his real estate, such intention shall be carried into efi£'ect.(/) Again, where technical terms are employed in a will, in such a manner, that to give them their strict meaning, would defeat the intention of the testator apparent from the will, a liberal or popular interpretation will be given them in order to carry into effect his inten- tion. Thus, thfe term " inherit" will be held applicable to lands devised or conveyed by a parent or ancestor to a child or descendant, (g') 2. Nevertheless, if technical words are used by the testator, he will be presumed to employ them in their legal sense, unless the context contain a clear indication to the contrary.(^) "If words df art," said Lord Alvanley, in Thelluson v. Woodford,{i) "are used, they are con- strued according to the technical sense, unless upon the whole will it is plain that the testator did not so intend." Courts, therefore, have no right or power to say that the testator did not understand the meaning of the words he has used, or to put a construction upon them different from what has been long received, or what is affixed to them by the law.(y) But where the intention of the testator is plain, it will be (M 4 Barb. Sup. Ot. Rep. 80. (c) See, also, Potter v. Chapin, 6 Paige, 639 ; SornhecK's Executors v. Americam, Bible So- eiety, 2 Sandf. Oh. Rep.' 133. (d) By Lord Kenyon, in Bay v. Ooventry, 3 T. R. 86. (e) Doe V. Tofield, 11 East, 246. See, also, Boev. Paitison, 16 East, 221; Doe v. Eask- viood, 6 A. & E. 167 ; Doe v. Pratt, lb. 180 ; Davenport v. OoUman, 7 M. & W. 481. (/) Bobson T. Blackburn, 1 Mylne &, K. 571 ; Goodman v. Edtiiards, 2 Mylne & K. T59. See, also, Read v. Backhmse, 2 Russ. & M. 546 ; Doe v. Cransioun, 1 M. & W. 1. But see Hally. Fisher, 1 Coll. 47; Stone tt. Greening, 13 Sim. 390; Parks v. Parics,,9 Paige, 107. (g) De Kay v. Irving, 5 Denio, 646. {h) Lane v Lord Stanhope, 6 T. R 352, by Lord Kenyon ; Phillips v. Gairth, 3 Bro. C. C 68, by Bnller, J. ; Buck v. Norton, 1 Bos, &. Pull. 57, by Eyre,, C. J. ; Jesson v." WrigUr 2' Bligh, 1 ; Mouncey T. Blamire, 4 Russ. Ch. C. 386, 387. («) 4 Tes. 329. {j) By Buller, J., in Eodgson v. Ambrose, Dougl. 341. See, also, Miines v. SkUer,, 8 Tes. 306. 372 GENERAL RULES OP CONSTRUCTION OP WtLLS. allowed to control the legal operation of words, however teclmi- cal.(A) The rule above stated has been carried so far, that, in some instances the testator has been presumed to use words and forms of expressipn in the sense which they have acquired by decided cases, although such sense be different from their ordinary and natural meaning.(Z) .It may be useful in this place, to state the well known principle, that where there is a general intent, and a particular one, the particular is to be sacrificed to the general intent.(m) Which doctrine, perhaps, when rightly understood, amounts to no more than an example of the rule now under consideration, viz. : that technical words, or words of known legal import, shall have their legal effect, unless, from subse- quent inconsistent words, it is very clear that the testator meant other- wise.(w) In the construction of wills, the testator must be presumed to have used words in their natural, ordinary or primary sense,(o) un- less some obvious inconvenience or incongruity would result from so construing them ■,{p) or unless from the situation of the testator's family, (g) or the context of the will, it appears that he must have in- tended to use them in some other or secondary sense ;(r) or where, by reference to extrinsic circumstances, which existed at the time of the making of the will, or which must necessarily exist in the event or at the time contemplated by him, the use of such words, in their ordinary or primary sense, would, under the provision of the will, in reference to which such words were used, be senseless, absurd or inoperative.(s) 3. The construction of the will is to be made upon the entire instru- ment, and not merely upon disjointed parts of it ; and consequently all its parts are to be construed with reference to each other.(i) Hence, general words in one part of a will may be restrained, in cases where it can be collected from any other part of the will, that the testator did not mean to use them in their general sense.(M) Hence, also, generally speaking, if the same words occur in different parts of the same will, they must be taken to have been used every- where in the same sense.(«) This rule, however, it, is said, does not preclude the court from putting a different construction upon the same (4) Vauchamp v. Bell, Madd. & Geld. 343 ; 6 Cruise's Dig. 148, 3d. ed. (l) Barnes v. Dixon, 1 Ves. sen. 41 ; Wihnot v. Wiinwt, 8 Ves. 10. But see Crowdo' v. Stone, 3 Russ. Chano Cas. 223. (m) "Robinson v. EoUnson, 1 Burr. 38 ; S. C, 3 Bro. P. C. 180, Toml. edit. ; Doe v. A'p- pUn, 4 T. R. 82 ; Doe r. Smith, 1 T. R. 531 ; Doe v. Cooper, 1 East, 229 ; Pierson v. Vickers, 6 East, 548 ; Jesson v. Wright, 2 Bligh, 49 ; Doe v. Harvey, 4 B. & C. 620." Parks v. Parks, 9 Paige, 107. (») By Lord Redesdale, in Jesson v. Wright, 2 Bligli, 56, 57. S. P.; Doe v. GaMini, 6 B. & AdoL 621 ; Lees v. Mosley, 1 T. & Coll. 589. See, also, 2 Bligh, 1 ; 1 B .& Adol. 944; 2 Sim. 33 ; lb. 274 ; 1 Tounge & Jerv. 512 ; 9 Bligh, 238 ; 2 Russ. & M. 566 ; 1 Beav. 59 ; lb. 100. (o) Matter of HaUet, 8 Paige, 375. (p) Booseveli v. T/mrman, 1 Johns. Ch. Rep. 220. Tg\ Hone v. Yam, Schaick, 3 Barb. Ch. Rep. 488. (r) Hone v. Van Schaick, 3 Corns. 538. (s) Cromer v. Pinckney, 3 Barb. Ch. Rep. 466. (t) Turpinev. Forreyner, 1 Buls. 101 ; Mirrily. NichoUs, 2 Bulst. 178; Cfittins v. Steele, 1 Swanst. 2,8. A codicil is to be taken as a component part of the will. See a/nie, p. n. (m) Strong v. Teatt, 2 Burr. 912; Doey. Eeade, 8 T. R. 122; Whitmore v. Trelawmy, 6 Ves. 130: Crone v. OdeU, 1 Ball & Beat. 466; S. C, 3 Dow. 61. («) Whitmore Y. Graven, 2 Chan. Cas. 169; Good/right v. Dunham, DougL 268; DakeUr. Welsh, 2 Sim. 319. But see WimierUm v. Crawfurd, 1 Russ. & M. 407. GENERAL EULES OP CONSTRUCTION OF WILLS. 373 words, even though used only once in a will, when applied to diff *- ent subject matters. In the case of Atkinson v. H'uichinson,{w) Lord Talbot decided, that the words " without leaving any issue," must be intended to mean, without leaving issue at the time of the death of the first taker, and that it was not, therefore, in the nature of an estate tail. But, as to real estate, it appears to have been the settled law in Eng- land, long before the Eevolution, that these words in a will implied an indefinite failure of issue, and, therefore, as to that part of the property, they created an estate tail, which, by the statute of this state, is turned into a fee simple.(x) In Forth v. Ohapman,{y) where the testator de- vised real and personal estate to A., and if he should die and leave no issue of his body then to B. ; Lord Macclesfield said, that it might be reasonable enough to take the same words as to the different estates of realty and personalty, in different senses, and as if repeated by two several clauses ; and that the words, " leave no issue," as applied to the personal estate, should be taken to mean leave no issue at the time of his death, but as applied to the freehold, to mean an indefinite failure of issue ; and this case has been considered as an 'authority in many subsequent instances for a different construction of the same words in a will as applied to different subjects.(3) It is not easy to reconcile these different rules with the principles of common sense, or to fnrnish any valid reasons for supposing that the testator meant one thing when. he used these words in reference to the real estate, and that he meant something different, when in the same sentence he used them in refer- ence to his personal estate and chattels real. The Legislature has seen the absurdity of these different constructions of the same words in a will, when applied to real or personal estate, and has applied the prop- er remedy, and have restored the term, ".dying without issue" to its natural and obvious meaning, by declaring that where a remainder shall be limited to take effect on the death of any person without heirs, or heirs of his body, or without issue, the words " heirs" or " issue," shall be construed to mean heirs or issue living at the de^ of the person named as ancestor, (a) and by providing in this re^Pjt, that limitations of future or contingent interests in personal property, shall be subject to the rules prescribed in relation to future estates in lands.(6) It must be further observed, that where there is no connection by grammatical construction, or direct words of reference, or by the decla- ration of some common purpose, between distinct bequests in a will, the rule now under consideration will not justify the drawing in aid the special terms of one bequest to the construction of another, although in its general terms and import similar, and applicable to persons standing in the same degree of relationship to the testator ; and, al- (w) 3 Peere "Wms. 258. (a;) 1 Peere 'Wms. 6B7. (y) Forth T. Chapman, 1 Peere "Wms. 667; 2 Ves. sen. 180; lb. 616; Cowpei- 410- 1 East, 229; lb. 263; Oomyns' Rep. 372. r , , (z) Sheffield Y. Lord Orrery, 3 Atk. 288 ; Lord Stafford t. BucUey, 2 Tes. sen. 180 • SoutKby V. Stonehowse, 2 Ves. sen. 616 ; Doe v. Smith, 5 M. &; S. 131, 132 ; Doe v. Ewart 7 A. & B. 636, 659. See, also. Carter v. BentaU, 2 Beav. 5il ; Byng v. Lord Strafford 5 Beav. 55S ; Bead v. Randall, 2 T. & Coll. Ch. C. 231 ; BucMe v. Fawcelt i Hare, 536 542 (a) 1 R. S. 724, sec. 22 ; 4th ed. I2d vol.) 133. : , ■ (S) 1 R. S. 773, sec. 2 ; 4tli ed. (2d vol.) 184. See RatKbcme v. Dyckman, 3 Paige, 9-30. 3,74 GENERAi RULES OF CONSTRUCTION OF WILLS. tSoiigh there is no apparent reason, other than the diiferent wording of the clauses, to presume that the testator had a different purpose in vie"w.(c) 4. The court is bound to give effect to every word of the will, with- out change or rejection, provided an effect can be given to it, not in- consistent with the general intent of the whole will taken together.((^| Thus, if one devises land to A. B. in fee, and afterwards in the same will devises the same land to C. D. for life, both parts of the will shall stand ; and in the construction of the law, the devise to C. D. shaU he first.(e) But where it is impossible to form one consistent whole, the separate parts being absolutely irreconcilable, the latter will prevaiL(/) It must not, however, be understood, that because the testator uses, in one part of his will, words having a clear meaning in law, and in another part words inconsistent with the former, that the first words are tobe cancelled or overthrown.(g') A contrary principle is now fully established in the doctrine ah'eady considered, that the general intent, although first expressed, shall overrule the particular.(A) Where any part %{ a will is ambiguous, the whole will is to be con- sidered for the purpose of ascertaining the intention of the testator in that particular part ; but where the intention is clear and certain, and no repugnancy appears between the different parts of the will, no such aid is necessary or proper.(i) 5. The will must be most favorably and benignly expounded, to pursue, if possible, the intention of the testator.(y) It is a cardinal rule in the construction of wills, that the intention of the testator is to govern, if consistent with the rules of law, and that intention is to 'be ascertained from the whole will taken together, and not from the language of any particular provision or clause thereof, when taken by itself ;(^) or from an examination of the whole will, in connection with the situation of the testator's property and family at the time it was made ;(Z) and, for the purpose of construction, a will and m. (c) Rigimr Compion, 9 East, 26'7 ; Ohambersy. BraiUford, 18 Ves. 368. But see Lme- day V. Hopkins, Ambl. 273; GUtins v. McDermott, 2 M. & K. 69 See, also, Sprit f. Bruce, Cro. Car. 368 ; Doe v. Wright, 8 T. R. 64 ; S. 0., in C. P., nrniine Doe v. CUU, 1 New E. 335 ; Doe v. WesUty, 4 Barn. & Cress. 667 ; S. C, 7 Dow. & Ryl. 112. See further on this subject, Right v. Sideboiham, Dougl. 759; GooOiight v. Barron, 11 East, 220; Paieev. Archhp. of Canterbury, 14 Ves. 36-t ; Fenny v. Eweslace, 4 M. & S. 58 ; Doe v. Pearse, 1 Price, 353 ; Crawford v. Trotter, 4 Madd. 361 ; OMman v. Slater, 3 Sim. 84; Wma. on Eirs. 929. ■ {d) Gray v. Minnefhorp, 3 Ves. 105 ; GonstoMtine v; Constantino, 6 Ves. 102 ; Doe -v-Bawi- img, 2 B. & A. 448. (e) Anon., Cro. Bliz. 9 ; Doe v. Davies, 4 M. & W. 599. (/) Gonsiantine Y. Consiantine, 6 Yea. 100; Doe v . Biggs, 2 Taxiat. 109 ; Sims Y. DougUg, 5 Ves. 243 ; Wykham v. Wykham,, 18 Ves. 421 ; Sherratt v. BenOey, 2 Mylne & K. 149; MormllY Sutton, 1 PhiU. Cli. C. 533. See, also, 4 Beav. 478 ;• 5 Beav. 100 ; Shipperdson v. Tower, 1 V & Coll C. C. 441. (g) By Lord Red esdale in Jesson v. Wright, 2 Bligh, 56. (h) Ante, p. 372. (i) Jackson v. Sill, 11 Johns. 201. (j) Toucha. 434; 2 Black. Com. 381. (k) Bradkarsi v. Bradhurst, 1 Paige, 331 ; Govenhoven v. Schvkr, 2 Paige, 122 ; RaMom Y. Dydman, 3 Paige, 9 ; Crosby v. Wendell, 6 Paige, 548 ; Hone v. Van Shaich, 3 Barb. Ch. Rep. 488 ; S, C, on appeal. ffi Jrvimg v. De Kay, 9 Paige, 521 ; Wolfe v. Yarn Nostrwnd, 2 Coms. 436. ©BNBRAL BULBS OF CONSTRUCTION OF WILLS 375 codicil may be considered together, and construed as different parts of ithe same instrument.(m) To effectuate, therefore, the clear intention, as a,pparent upon the ■whole will, words and limitations may be transposed, (w) supplied,(o) or rejeeted.(oo) But the rule is, that words in a will are not to be re- jected, unless there cannot be any rational construction of the words as iihey stand.(^) Words, however, in a will, which, if allowed to stand, would pro- duce repugnant and inconsistent results, may be rejeeted.(2) The clear, literal interpretation of words may be departed from, if they will bear another construction ; and the strict grammatical sense may be neglected.(7-) Whether an adjective shall refer exclusively to the last preceding antecedent, or may refer also to one or more farther, back, depends upon the intent of the testator, (s) That which seems to be a contingency or condition, upon which a remainder is to vest in interest, will, in furtherance of the intention of the testator, be regarded as only an inaccuracy of expression, and as intended by the testator to denote the time when such remainder is to vest in possession.(if) So, in order to advance the apparent intention of the testator, ."or" may be construed "and,'"(**) and vice vers%{io) in cases of legacies, as well as devises of real estate. So "if" may be construed "when" for the same purpose.(a3) . ' But a mistake in a will cannot be corrected, or an omission supplied, (m) Bone v. Van Schaick, 3 Barb, Ch. Rep. 488 ; Wescott v. Cody, 5 Jolina. Ch. Rep. 334. (re) Gfreenv. Hayman, 2 Chaae. Cas. iO ; Spark v. PurneU, Hob. 15 ; East v. Cook, 2 Ves. een. 32; Suke of Marlborough y. Godolphin,,2 Tea. sen. li; Marshall y. Sopkins, 15 Bast, 309 ; Hudson v. Bryant, 1 CoU. 681 .; Rafhbone v. Dyckmun, 3 Paige, 9 ; I'ond v. Bergh, 10 Paige, 140 ; Mason v. Jones, 2 Barb. S. C. Rep. 229. (o) Doe V. Micklem, 6 East, 486, 493, 494 ; Mrkpatrick v. Kwkpatrick, 13 Ves. 476 ; Mon- tague V. Nucella, 1 Russ Chan. Caa. 171, 172. (oo) Boon V. Gomforth, 2 Ves. sen. 276 ; Sims v.. Doughty, 5 Ves. 243 ; Doe v. Slenlake, 12 .East, 515 ; Smith v. FyhiS, 9 Ves. 56H ; Sesson v. Wright, 2 Bligb, 1 ; Sherratt v. Bent- ley, 2 Mylne & K. 149; Sobinson v. Waddelow, 8 Sim. 134; Mason v. Jones, 2 Barb. Sup. ■Ot. Rep. 229 ; Bradley v. Amidon, 10 Paige, 235. (p) By Lord Eldon, in Chambers v. Brailsford, 19 Vea. 654; S C, 2 Meriv, 25. Ig) Mason V. Jones, 2 Barb. Sup. Ct. Rep. 229. (r) Bradhursi y. Bradhurst. 1 Paige, 331; Saihbone v. Dyckman, 3 Paige, 9. («) Van AMen v. Mooers, 5 Barb. Sup. Ct. Rep. 110. (t) Brown y. Center, L. Raym. Rep. 427 ; & C, 2 Show, 152-; Longford v. Gheeke, 3 Lev. 125; Grosbyv. Wendell, SFaige,5i8-52,, (u) S'icha/rdson v. Spmag, 1 P. Wms. 434-; Eccardv. Brooke, 2 Cox, 213; Read\. SneU, 1 Atk. 643 ; Weddell v. Mandy, 6 Ves. 341 ; HorMdge v. Ferguson, 1 Jao. 583 ; Thackeray v. , Sampson, 2 Sim. & Stu. 214; Monkhouse v. Monkhouse, 3 Sim. 126; Miles v. Dyer^ 5 Sm. -435 ; Grimshaw v. Pickup, 9 Sim. 581 ; White v. Supple, 2 Dr. & W. 47 1 4 Parkin v. Knight, 15 Sim. 83. The construction of "and" for "or" was not allowed in Lon^more v. Broom, i Tes. 124; Newman v. Nightimgah, 1 Cox, 341 ; Gittings v. McDermott, 2 M. & K. 69. (w) Mdberley v. Strode, 3 Ves. 450 ; BeU v. JPhyn, 7 Vea. 459 5 Slubbs v. Sargon, 2 Keen, 355 ; 3 M. & Or. 507 ; White v. Supple, 2 Dr. & W. 471 ; Hetherington v. OaJtman, 2 K. & ■Coll. C. C. 299. "And" is never read "or" unless the context of the will favors it, and the .general intention is thereby elucidated or promoted ; Armstrong v. Moran, 1 Bradf. Surr. Rep. 314. This construction was refused in Doe v. Cooke, 7 East, ?69; Doe v. Rawding, 1 it. & A. 441 ; Girdlestonev. Doe, 2 Sim. 225. ' (x) Smm-t V. Clark, 3 Rusa. Chano. Caa. 365% But.see Barikman v.. MwrcMson, 2 Rusa. & M. 136. 376 GENEEAIi EXILES OF CONSTRUCTION OF WILLS. unless it clearly appears by fair inference from the whole will.(y) Hence, not only in cases of devises of real estate", but also of wills of personal property, courts of construction cannot, in their interpreta- tion of the intention of the testator, pay the least regard to any vari- ance between the will as it stands, and the instructions given for pre- paring it.(a) If, in point of fact, there are any undue omissions or in- sertions in a will of personalty, these may, under certain circumstan- ces, be reformed by application to the Court of Probate.(a!) But parol evidence is inadmissible to supply or contradict, enlarge or vary the words of a will, or to explain the intention of the testator, except there be a latent ambiguity, arising dehors the will, as to the person or subject meant to be described, or to rebut a resulting trust.(2>) A will may, however, be construed in connection with another instru- ment in writing to which it refers.(c) Again, an express bequest cannot be controlled by the reason as- signed : The assigned reason may aid in the construction of doubtful words, but cannot warrant the rejection of words that are clear.(d) Nor can an express disposition be varied by inference or argument from other parts of the will.(e) Much less shall the obvious construc- tion of a will be controlled by the inconvenient or unmeritorious nature of th^e bequest.(/.) On the contrary, the court is bound to correct every inaccuracy and impropriety of terms in advancement of the manifest intention of the testator, however undeserving it may be of favor in a court of justice.(g') Where, indeed, the literal force of expressions differs, in a will, it is a true rule to seek for the intention of the testator rather in a consistent and rational purpose, than in a purpose inconsistent and irrational. (A) 6. Where words are capable of a two-fold construction, the rule is, even in the case of a deed, and much more in the case of a will, to adopt such as tends to make it good.(i) If two parts of a will are irreconcilable with each other, the last part is to be taken as evidence of a subsequent'intention,, and will prevail, unless other parts of the will forbid it.(y) 7. The intention of the testator is not to be set aside because it can- not take effect to the full extent, but is to work as far as it, can.(A) Where a will contains different trusts, some of which are valid, and (y) PMlUps v. Ohamberlayne, 4 Tes. 5T ; Dent v. Pepys, Madd. & Geld. 351. (2) Mmrayy. Jones, 2 V. & B. 318. Se6 further on this point, as to wills of realty, New- turgh V. Newhurgh, 5 Madd. 364; PoweWy. Moucheti, Ma(Jd.& Geld, 216. (a) See ante, p. 169. , (S) Mami V. Mmn, 1 Johns. Ch. Eep. 231. (c) Jackson v. Babcock, 1 2 Johns. 3'89. (d) Gale V. Wade, 16 Tes. 46. (e) OoUett V. Lawrence, 1 Vea. jun. 269 ; J 368 j Defflis v. GolA- Schmidt, 1 MeriT. 419. {g) TheUusen v. -Woodford, i Ves. 311, by Lawrence, J. (h) Jenkins v. Berries, 4 Madd. 67. (i) By Lord Talbot, in Aikimaon v. Butchinson, 3 P. "Wms. 260 ; by Lawrence, J., in TJut- luson V. Woodford, 4 Ves. 312; Pond^y. Bergh, 10 Paige, 140; BuUer v. BuUeir, 3 Barb.Ch. 304 ; Mason y. Jones, 2 Barb. Sup. Ct. Rep. 229. (}) Bradsheet y. Clark, 12 Wend. 602; Sovenhoven v. Shvier, 2 Paige^ 122; Qardmerx. Gardner, 6 Paige, 455 ; Parks v. Parks, 9 Paige, 1 07. (ft) Thelluson y. Woodford, 4 Ves. 326, by Buller, J. MODES OF DESCRIPTION OF A LEGATEE. 877 others void or unautliorized by law, or where there are distinct and independent provisions as to different portions of the testator's property, or different estates or interests in the same portions of the property are created, some of which provisions, estates, or interests are valid, and others are invalid, the valid trusts, provisions, estates or interests created by the will of the testator, will be preserved, unless those which are valid and those which are invali], are so dependent upon each other that they cannot be separated without defeatingthe general intent of the testator.(Z) But if valid and invalid provisions are so intermingled that they can- not be separated from each other, they must all fall together. And where a particular provision, which, if it stood alone, would be valid, forms a part of, or depends upon a general purpose of the testator, which is contrary to law, it is void.(m) Again, if the intention of the testator is illegal, or incapable of being carried into effect, the court can- not frame and decree a new legal intention, as near as practicable to his original intent.(w) 8. It is a settled rule, that in the construction of a will of personalty made by a testator domiciled in a foreign country, the lex domicilii must prevail, unless there is sufScient on the face of the will to show a dif- ferent intention, (o) Modes of Description of a Legatee. The present purpose is to consider briefly what persons are entitled to legacies under particular modes of description. In general, no rule is better settled, than that legatees must answer the description and character given of them in the will ; but it will pres- ently appear, from the cases, that there are many important exceptions to it. Who are entitled under the description of 1. " Children i''' 2. ''^Grandchil- dren:" 3. "Wife.-" 4. " N'ephews and Nieces." 1. " Children." Generally speaking, every person who^ at the time of the testator's death, falls within the described class of " children," will be entitled : But where it appears from express declaration, or clear infer- ence upon the will, that the testator intended to confine his bequest to those only who answered the description at the date of the instrument, such intention must be carried into eSect.{p) A court of equity, how- ever is always anxious to include all children in existence at the time of the death of the testator ;(g') and particularly, when he stands in the (t) Saalin v. Oorse, 2 Barb. Oh. Rep. 506 ; Se Kay v. Irving, 5 Denio, 646 ; S. 0., affirmed, 9 Paige. Ch. Rep. 521 ; Pm-ks v. Parks, 9 Paige, 107 ; WiUiamis v. Williams, in Court of Ap- peals, December, 1*<53. See, also, Hawley v. James, 5 Paige, 318 ; 16 Wend. 61 ; LoriUa/rd V. Coster, 5 Paige, l'!2 ; 14 "Wend. 265. (m) Hawley v. James, 5 Paige, 318, 16 Wend. 61. See, also, Lorillard v. Coster, 5 Paige, 1T2; 14 Wend 265; Booty. Stuyvesani, 18 Wend. 257; Saimonv. Stuyvesant, 16 Wend. 321 ; Hone v. Van Schaick, 20 Wend. 564. (n) ionitoj-fiv. Cbster, 5 Paige, 172; 14 Wend. 265. (o) Story's Conflict of Laws, sees. 479 a, 479 m, 490, 491. Vide 2 Roper on Leg. ch. 21, sec. 9, p. 1459, 2d Amer. ed., Phila., 1848. (p) Sherer v. Bishop, 4 Bro. C. C. 65. See, also, Crossly v. CUure, Ambl. 397 ; V-imefY. Francis, 2 Cox, 191, 192. (j) Singrose v. Bramham, 2 Cox, 384. 378 MODES OP DESCRIPTION OF A LEGATEE. relation of parent to tlie legatees, the court, presuming that he intended to do his duty in providing for all his children at his death^ will lay hold of any general expression to give effect to this presumed intention, aad will not permit such general expression to be narrowed by the con- text.(r) The leading principle is, that where a bequest is immediate to " chil- dren" in a class, children in existence at the death of the testator, and these alone, are entitled (s) And it will make no difference that the bequest is to children "begotten or to be begotteii."(^) And a child in ventre sa mere at the death of the testator, is considered as in esse if it is afterwards born alive ; and such child is equally en* titled with those who were born in the lifetime of the testator,(M) Where, however, by the will of the testator, there is a postponement of the division of a legacy given to a class of individuals, until a period subsequent to his death, every one who answers the description, so, as to come within that class at the time, which is fixed by the testator for the division, will be entitled to a share, although not in esse at the death of the testator, unless there is something in the will to show that the testator intended to limit his bounty to such of the class as would an- swer the description when the will took effect by his death.(?;) And where the language of the will indicates a present bequest of a fund which is to be distributed at a period subsequent to the death of the testator, those who are in esse at the time of his death will take vested interests in the fund, but subject to open and let in others who may come into being, so as to answer the description and belong to the class at the time appointed for the distribution. Where, however, a (r) Matchwich v. Oock, 3 Tes. 609 ; Fresmamtle v. Taylor, 15 Ves. 363 ; Roberts y. Higmmi, 1 Bro. 0. C. 532, in notis; Viner v. Framcis, 2 Bro. C. 0. 658; S. C, 2 Cox, 190; Grme v. Odell, 1 Ball & Beat. 459 ; Davidson v. SaOas, 14 Ves. 576 ; Scott v. Harwood, 5 Madd. 332; De Witle v. De Witte, 11 Sim. 41 ; Grower v. Pinctmey, 3 B. C. 466 ; Doe v. Clarke, 2 H. BL 399; Rawlins V. Rawlins, 2 Cox, 425; Trower v. Butts, 1 Sim. & Stu. 181 ; SpracUing T. Baniei; 1 Dick. 344; Starrs v. Beribow, 2 M. & K. 46 ; Buft^ v. Lowe, 10 Sim. 317 ; Gilmre V Severn, 1 Bro. 0. C. 582, (reoognized^je?" M. R. in Ringrose v. Bramham, 2 Cox. 385) ; SosU X. Pratt, 3 Ves. 130 ; Hughes v. Hughes, 14 Ves. 256 ; S.G., 3 Bro. C. C. 352, 434; Curtis v. Cw- Us, Madd. & Geld. 14; Beam v. Balm, 3 Sim. 492; Titcomb v. Butler, 3 Sim. 411; Bleasev. Bv/rgh, 2 Beav. 2,21 ; Gardiner v. James, 6 Beav. 170 ; Glafke v. Chirke, 8 Sim. 59. (s) Wms. on Exrs. 934; Collin v. Collin, 1 BarjD. Ch. Rep. 630. Mr. Surrogate Bradford considers that the authorities favor the doctrine that, generally, in case of a bequest to chil- dren as a class, only those living at the date of the will are entitled, notwithstanding a pr(> Vision in favor of issue in case of death, unless an intention to the contrary can be deduoeS from other clauses or phrasea Lawrence v. Hebbard, 1 Bradf Su/r. Rep. 252 ;' Story v. Vm Rensselaer, 2 lb. 172. {{) SpracUing v. Ramer, 1 Dick. 344 ; Storrs v. Barlow, 2 M. & K. 46 ; BuOer v. Low, 10 Sim. 317 ; Swift v. Duffield, 5 Sergt & Rawle, 38. («) Doe V. Clark, 2 Hen. Black. Rep. 399; Trower v. Butts, 1 Sim. &, Sta Rep 181 ; Raw- Hnsv. Rawlims, 1 Cox's Cas. 425. See, also, -ifarseiis v. Thcelhmner, 2 Paige, 35; Bmv. Yan Schawk, 3 Barb. Ch. Rep. 488. (u) GUmorev. Severn, 1 Bro. 0. 0. 582; Jenkins y. Freyer, 4 Paige 47, 63-4; Mason % Jones, 2 Barb. S. C. Rep. 229 ; GoUin v. Collin, 1 Barb. Ch. Rep. 630 ; WmS. on Exrs. 936-6 ; atid oases and authorities referred to in notes to the AmeWcan edition. Where a trust of accumulation is created for the benefit of the children or issue of persons in being at the death of the testator, posthjimous children of those persons will take as beneficiaries; be- cause issue not already born to the persons named must be born, if ever, during their life- times, or within the period of gestation afterwards And such posthumous children will be held to be Issue, in the lifetime of their father, within the meaning of the statute which fixes a time beyond which acoumulations cannot commence. Mason v. Jones^ 2 Barb. Sup. Ct. Rep. 229. MODES OF DESCRIPTION OF A LEGATEE. 379 fdnd bequeathed to children or others as a class, to be divided equally among the persons composing the class when they arrive at the age of twenty-one or marriage, only those who shall have been born or begot- ten when the eldest arrives at the age of twenty-one, or when the first of the class is married, is entitled to share in the fund.(ty) The word "children" does not, in common parlance or in its proper signification, extend further than the immediate descendants of the per- sonsjnamed ; and conseqently grandchildren, or issue generally, are not ordinarily included in that term.(a;) It may, however, include them where it appears there were no persons in existence who would answer to the description of children, in the primary sense of the word, at the time of making the will ; or where there could not be any such at the time or in the event contemplated by the testator ; or where the testator has clearly shown, by the use of other words, that he used the word child- ren as synonymous with descendants, or issue, or to designate or include illegitimate offspring, grandchildren or stepchildren.(2/) Natural children, having acquired the reputation of being the children of a particular person, prior to the date of the will, are capable of taking under the description of " children."(a) The law, however, appears to be settled, that where there are legiti- mate children in existence at the time of the making the will, so as to satisfy the words of the devise or bequest in their primary sense, an illegitimate child cannot take under a general devise or bequest to children, as a class, unless there is something appearing upon the face of the will to show that the testator intended to include others besides legitimate children.(a) Although, as a general rule, a devise to children, without any other description, means legitimate children, and if the testator has such children parol evidence cannot be received to show that a different clasS of persons was intended, still, in these cases, as in all others, it is proper to look into circumstances dehors the will, to see whether there are any persons answering the description of the legatees in the legal sense of the term used ; and if it appear that there are not any such persons, it is then allowable to prove the situation of the testator's family, to enable the court to ascertain who were intended by the testator as the objects of his bounty. Thus, in Gardner v. Heyer^Q)) where the testatot died a bachelor, but had for a long time lived and cohabited with M. Smith, by whom he had and left four children, a son and three daugh' ters, who survived, and who had been by him placed at school and acknowledged as his children, and who were generally reputed as such (w) CoUin V. OoMin, 1 Barb. Ch. Rep. 630; Andirews v. PaHingUm, 3 Bi-o. C. C. 401; Prescott V. LoTig, 2 Tes. jun. 689 ; Haste v. Pratt, 3 Id. 130 ; Whitehead v. Lord St. John, 10 Id. 152 ; GilUrl v. Boorman, 11 Id. 238. (a;) Baddiff v. Buckley, 10 Ves. 195.; 4 Mylne & Cr. 60; Moor v. Eaisbeck, 12 Sim. 123 ; Dickinson v. Lee, 4 Watts' R. 82 ; BaUoweU v. Phipps, 2 "Whart. R. 376; Scott v. Nelson, 3 Port. R. 452 ; Mowatt v. Oarrow, 1 Paige, 328. (y) Eaddiff v. Buckley ^ 10 Ves. 195; Earl of Orford v. Churchill, 3 Tes. & Beame, 6S; Mowatt V. Garrow, 1 Paige, 328. The word children includes only the immediate legitiinatfe descendants, and not a stepchild. Lawrence v. Bibbard, 1 Bradf. Surr. Rep. 252. (z; Wilkinson v. Adam, 1 Ves. k Beam. 422, 454. (a) Cartwright v. Voiwdiry, 5 Tes. Rep. 530 ; Harris y. Lloyd, Turn. & Russ. Rep. 310 \ Swaine v. Kennerly, 1 Tes. & Bea» 469 ; Collins v. Hoxie, 9 Paige, 81. (6) 2 Paige, 11. ' 380 MODES OF DESCRIPTION" OF A LEGATEE. by his friends ; and by his will he gave to his son John $10,000, to be paid to him when he arrived at the age of 24, the interest in the mean- time to be applied to his maintenance and education ; and he also gave to each of his daughters $3,000, payable at the age of 21 ; and the in- terest in the meantime to be applied to their education and support* and he directed his executors and trustees to pay $65 to M. Smith, the mother of the .children, quarter yearly, during her life, if she remained single and had no more children ; and he devised and bequeathed aU the residue of his real and personal estate to his"executors and trustees, and the survivor of them, in fee, in trust to pay two-thirds of the income thereof to his son John, and one-third to his daughters, during their lives, with remainder to their issue ; and he gave cross remainders to the snrvi- vors in case any of the children should die without issue ; and he also ap- pointed the executors and trustees, or the survivor of them, guardians of the children during their minority, and earnestly requested that the utmost care should be taken of their morals and education. , The Chan- cellor, upon the facts, declared that there was no doubt as to the legal and equitable rights of the children of Mrs. Smith, under the will. 2. " Grandchildren." The term " grandchildren " does not comprise great-grandchildren, unless, in analogy to the use of the term children, the testator has manifested his intention in the will itself, to give the term such extended signification. (c) A grandchild hy marriage is not entitled under the description of of " grandchildren."(cZ) "Where however, it appears that it was the intention of the testator to include the children of a stepchild among his grandchildren, such. children will take accordingly. Thus in Cutter v. Doughti/,{e) the words of the devise were as follows : — "I give to my grandchildren and their heirs, my said farm as follows, to wit : to the children of my stepdaugh- ter, lot No. 1 ; to the children of my daughter, lot N"o. 2, &c. A subse-: quent clause provided that if any of the devisees died without issue, 'their share was to be divided among the survivors of the testator's children or grandchildren. It was held by the Supreme Court, and the Court for the Correction of Errors, that the testator had denominated the children of his stepdaughter grandchildren, in the first clause of this will ; and by the latter court in opposition to the Chancellor and the Supreme Court, that they were included under the same denomin- ation in the last clause." (c) Bbwe V. VoM Schaick, 3 Corns. 538 ; 2 Eden, 196 ; >a C, Ambl. 603, nomim Eussey v. SiOon, 3 Ves. & Beam. 59 ; 1 Rop. Leg. 69, 3d ed. See aeo. the judgment of Lord Cot- tenham, in Sanderson v. Bayley, 4 Mylne & Cr. 60 ; and Waring \. Lee, 8 Beav 247 ; Em- sey V. Berkley. . The testator bequeathed two thousand pounds "to the children and grand- children of his brother I. P., deceased, excepting M. F. iwho was a grandchild of I. P.) and her children, she and they not needing it, to be equally divided among those of them who may be then living, (viz., at the death of the testator's widow,) saving that his cousin S. R. should have two shares thereof." Held, 1. That the great-grandchildren of I. P. took equally with children and grandchildren. 2. That all who were alive at the death of the testator's ■widow, whether bom before or after the testator's death, were entitled to lake. PemberUm T. Pa/rker, 5 Binney, 601. (d) Su,ssey v. Berkley, 2 Eden, 196 ; S. C, Ambl. 603 ; Tvomine ffussey v. Dillon, I Rop. Leg. 69, 3d ed. See, also, the judgment of Lord Cottenham hi Sanderson v. Bayley, iUjhe & Cr. 60 ; and Warmg v. Lee, 2 Beav. 241. (e) 7 Hill, 305. See, also. Hone v. Vim Sclmick, 3 Coins. 538. MISTAKES IN THE NAMES OR DESCRIPTIONS OF LEGATEES. 881 3. "Wife:" A bequest by a husband to his "beloved wife," not mentioning her by name, applies exclusively to the individual who answers the description at the date of the will, and is not to be extended to an after taken wife.(/) 4. " Nephews and nieces :" The principles already stated with re- spect to the restriction and enlargement of the terms " children " and "grandchildren," apply to the words " nephews and nieces." There- fore great nephews and great nieces are not ordinarily to be considered as comprehended in that description.(^) Nor will the expression "grand nephews and nieces," include the children of grand nephews and nieces.'/i) But in this case also, the more enlarged sense will be attributed to the expression, where such is its meaning in view of the situation of the testa- tor s family relations, or the context indicates the intention of the testator so to use it.(i) Thus where the provisions of the will were as follows : — ■ ' Item third. I will and bequeath unto the children of my sister Catherine each five hundred dollars. Item fourth. I will and bequeath unto each of my nephews and nieces five hundred dollars, excepting John Cromer. Item tenth. I will and bequeath unto the children of my nephew, John Cromer, five hundred dollars," and the testator left a niece who had three children, one nephew, several grandnephews and nieces, the grand- children o'fa deceased sister of the testator, of whom John Cromer was one, and a great-grandniece who was the only child of a deceased daughter of a deceased nephew of the testator, it was held that the pro- visions above quoted of the will, showed that the testator used the words nephews and nieces in an enlarged sense, so as to include all the grandnephews and nieces of the testator, whose parents were dead, and that the brothers and sisters of John Cromer, and the other grand- nephews and nieces whose ancestors were dead at the time of the ma- king of the will, were entitled to legacies. And further, that upon the ordinary rules of construction, parents and children could not both take under the description of the testator's nephews and nieces, but only the parents who were living, and those grandnephews and nieces whose parents were dead.(y) Of Mistakes in the Names or Descriptions of Legatees. The general rule upon this subject is, that where the name or de- scription of a legatee is erroneous, andt here is no reasonable doubt as to the person who was intended to be named or described, the mistake will not disappoint the bequest. The error may be rectified, and the true intention of the testator ascertained, in two ways : 1. By the con- text of the will ; 2. To a certain extent, by parol evidence. 1. The mistake may be rectified by the context. Thus, an error in the name of the legatee may be obviated by the accuracy of his descrip- tion ; as where a legacy is given to " my namesake Thomas, the second' . (/) Garrait v. NMock, 1 Enss. & M. 629. {g\ Falkner v. BuUer, AmbL 514 ; SheUey v. Bryer, ] Jacob, 207 ; 4 Mylne & Or. 60. (h) Waring v. Zee, 8 Beav. 247. (j. "James v. Smith, 14 Sim. 2 It;" Wms. 947; Gromery.Pinckney, 3 Barb. Oh. Rep. 466. U) Cromer v. Finckney, 3 Barb. Ch. Rep. 466. 382 MISTAKES IN THE NAMES OR DESCRIPTIONS OF LEGATEES. son of my brother," and the testator's brother has no son named Thom- as, but his second son is named William, there is sufficient certainty in the description to entitle the second son.(^) And, again, where the testator bequeathed to his brother Connac Connolly, and to his two sisters, Mary and Ann, a certain residue, and afterwards by a codicil bequeathed as follows: " To my nephew, Gormac Connolly, the son of my brother, Cormac Connolly, the sum of five hundred dollars, for his ecclesiastical education, which sum is to be taken 'from what I have bequeathed to my brother, Corma(^ and to my sisters, Mary and Ann." And it appeared that the testator never had a brother named Cormac, but that he had a nephew, Cormac, who was the son of his only surviving brother, James, who was pursuing classi- cal studies in Ireland, with a view to an ecclesiastical education, and who was the only nephew of that name, it was held that, the legatee intended by the testator, by the name of his brother, Cormac, was the father of his nephew, Cormac, and that his brother, James, was the person entitled to share in the residuary estate.(Q So, where there was a bequest of two thousand dollars, in trust, for " the Ladies of the Ursuline Order, residing in Charleston, in the state of South Carolina," and it appeared by the testimony, that, at the time when the will was executed, there was an institution in the city of Charleston, South Carolina, which had been incorporated by the- name of " The Ladies Ursuline Community of the city of Charleston ;" that it was founded by Bishop England, and was still in existence, and that it had been, and was known and spoken of invariably, as " the Ladies of the Ursuline Convent," or " order," and that there had not been, and was not any similar society or institution in the State of South Carolina, These circumstances, it was held, rendered it certain beyond a question, who was intended by the description contained in the will, and the legacy was decreed to the Ladies Ursuline Community of the City of Charleston.(m) So an error in the description may be obviated by the certainty of the name ; as where a legacy was given to " Charles Millar Standen and Caroline Bliz. Standen, legitimate son and daughter- of Charles Standen,, now residing with a company of players," and it appeared that they were illegitimate children, their claim was, nevertheless, supported.(n) So, where there was a bequest to John Newbolt, second son of William Strangways Newbolt, vicar of Somerton ; and the vicar of Somerton was William Robert Newbolt, and his second son was Henry Ebbeit, and his third son was John Pryce ; it was held that John Pryoe New- bolt was entitled to the legacy ; for that the inaxim applied, Veritas (ft) StockdcUey. BuaKby, 19 Tes. 381; IS^. G., Coop. 229; See, also, Dowsetv. Sweei, AmbL 174; Smithy. Coney, 6 Tes. 42; Bradshaw t. Bradshaw, 2 Younge k C. 72; Brisim v. Bristow, 5 Beav. 289; Blundell v. Gladstone, 1 Phfll. Ch. C. 279; Wms. 9S8. (I) GonmUy v. Pardon, 1 Paige, 291. In Thomas v. Stevens, 4 John Ch. B. 607, a legacy to Comeha Thompson was held a good bequest to Caroline Thompson, it appearing oMmM that she was the person intended. (m) Banks v. Phelan, 4 Barb. S. C. Rep. 80. See, also, ffornbeck's Executor v. Americm Bible Society, 2 Sand£,Ch. Rep. 133, and cases cited; Careless v. Cqreless, 1 Meriv. 384;, S. C, 19 Ves. 601; Beaumont y. FeU, 2 P. Will. 140; Manny. Executors of Mann, IJohna Ch. Rep. 234. (n) Standen y. Stamden, 2 "Ves. jun. 589 ; S, C, 6 Bro. P. C. 193, Toml. edit. MISTAKES IN THE NAMES OB DESCRIPTIONS OP LEGATEES. 383 nominis tollit errorem, descriptionis.{d) So where the testator, being resi- dent in India, bequeathed his residuary property to his " nearest rela- tions in my native country, Ireland," sisters living in America were held entitled.(j3) So where the bequest was " To Mary Smith, wife of Nathaniel Smith, three hundred dollars," and it appeared that Mary Smith was the wife of Abraham Smith, and that the name of the wife of Nathaniel Smith was Sarah Smith, it was held, upon parol evidence, however, going to show the relations of the testatrix with the conflict- ing claimants for the legacy, that Mary Smith, the wife of Abraham Smith, was'the legatee intended by the testatrix.(pp) 2. The mistake may, to a certain extent, be rectified by parol evi- dence. It is obvious that the nature of this treatise will not allow of a full consideration of this wide and difl&cmt subject : it may be suf- ficient in this place to mention the general principles established with respect to it. It may, perhaps, be safely stated as a general proposition, that a court may inquire into every material fact relating to the person who claims to be interested under the will, and to the circumstances of the testator, and of his family and affairs, for the purpose of enabling the court to identify the person intended by the testator, (g') Further, in certain special cases, extrinsic evidence of the intention of the testator, (e. g., proof of his declarations^ at the time of making his will,) is admissible to make certain the person intended, where the description in the will is insufficient for the purpose.(r) " In all cases in which a difficulty arises in applying the words of a will to the person of the devisee, the difficulty or ambiguity which is introduced by the admission of extrinsic evidence, may be rebutted and removed by the production of further evidence upon the same subject, calculated to explain who was the person really intended to take under the will, according I to the maxim, '^ Ambiguitas verborum latens, veriji- catione 8uppletur."{j-r) " There is, however, but one class of cases in which evidence of the testator's declarations can properly be admitted ; and that is, of cases of equivocation, viz., where an ambiguity arises, from the admission of extrinsic evidences, as to which of two or more things, or which of two or more persons, each answering the description in the will, the testator meant to express.(s) (o) NewUU v. Price, 14 Sim. 354. (p) Smith v. Crnnpbell, \% Ves. 400. {pp) Smith V. Smith, 1 Edwd. Oh. Rep. 189; S G., On appeal, 4 Paige, 111. (g) This subject is discussed with much learning and ability by Vice- Chancellor Wigram, in his treatise on " The Application of Extrinsic Evidence to Interpretation of WiUs." See, also, Smith v. Smith, 1 Edw. Oh. R. 1 89 ; 4 Paige, 211 j Banks v. Phelan, 4 Barb. S. 0. Rep. 80 ; Gardner v. Beyer, 2 Paige, 11 : Mowatt v. Garrow, 1 Paige, 328 ; Gromer v. Pincknev, 3 Barb. Ch. Rep. 465. • (r) Wigram, p. 78 etseq, 2d edit. Declarations of the testator cannot be received as evi- dence of what he intended by the terms nephews and nieces, in his will. Gromer v. Pinch- ney, 3 Barb. Ch. Rep. 466. See the judgment of Tindal, C. J., in Miller v. Trwoers, 8 Bing. 244. See, also, Bradshaw \.Bradshaw, 2 Tounge & C. 12; DuM of Dorset v. JBdrwarderi a Curt. 80 ; Wilson v. Squire, 1 T. &. Coll. Ch. C. 654; Danberry v. Goghlcm, 12 Sim 507 ■' Doe V. Allen, 1 2 A. & B, 451. ' (rr) Wms. 990. (s) " Miller v. Travers, 8 Bing. 244 ; Doe v. HiscocJc's, 5 M. & W. 363 ; Bradshaw y, Brad- shaw, 2 T. & CoU. 72; Duke of Dorset v. Eawojrden, 3 Curt. 80; Wilson v. Squire, 1 T. & CoU. Ch. C. 654; Danberry v. CoghUm, 12 Sim. 507 ; Doer. AHen, 12 A. & E. 45 " Wms. 990 384 SPECIFIC LEGACIES. " Accordingly, where a complete blank is left for Jhe devisee's name in a will, no parol evidence, however strong, will be allowed to fill it Tip as intended by the testator. But where a blank was left for the Christian name only, parol evidence was admitted to prove the indi' vidual intended.(<<) So in case of a devise " to Mrs. 0." Lord Lougt borough referred it to the Master, to receive evidence to show the per- son intended.(M) The two last cases, perhaps, are only reconcilable with ■ the princi- ples of law applicable to this subject, on the supposition ■yiat the evi- dence went to establish, in the one case, that the claimant of the legacy, was a person whom the testator was in the habit of calling " Mrs. 0. ;" and in the other, that the claimant was a person whom the testator was in the habit of calling by*he surname only.(v) Where a testator has habitualy called certain persons or things by peculiar names, and those names occur in his will, evidence of sncn habit seems receivable to explain the meanings of the will, in like manner as if his will had been written in cypher, or in a foreign lan- guage.(M;) Of Specific Legacies. Of legacies there are two kinds — a general legacy and a specific leg- acy. A legacy is general, when it is so given as not to amount to a bequest of a particular thing or money of the testator, distinguished from all others of the same kind : a legacy is specific, when it is a be- quest of a specified part of the testator's personal estate which is so dis- tinguished. Thus, for example, " I give a diamond ring," is a general legacy, which maybe falfllled by the delivery of any ring of that kind; while, " I give the diamond ring presented to me by A," is a specifier legacy, which can only be satisfied by the delivery of the identical sub-. ject. Again, if the testator, having many brooches or horses, bequeath: " a brooch" or " a horse" to B., in these cases the legacy is general.' But a bequest of " such part of my stock of horses which A. shall select, to be fairly appraised, to the value of £800," or of "all the horses which I may have in my stable at the time of my death," is specific.(a;) The distinction between these two sorts of legacies is of the greatest importance ; for, as has already been seen,{y) articles not specifically bequeathed, are to be first sold for the payment of debts ; and articles so bequeathed, are not to be sold until the residue of the personal es- tate has been applied to such payment, and as it will hereafter more fully appear, if there be a deficiency of assets, a specific legacy will not be liable to abate with the general legacies, while, on the other hand, if the specific legacy fail, by the ademption or inadequacy of its sub- ject, the legatee will not be entitled to any recompense or satisfaction out of the general personal estate. So that, though specific legacies have in some respect the advantage of those that are general, yet, in («) Baylis v. AUy. Gen., 2 Atk. 239 ; Iluni v Hort, 3 Bro C. C. 311; 8 Bing. 254; CH- ionv. Lord Nugent, 13 M. & W. 200. See Doe v. Westlak'e, 4 B. & A. 5? {li) Price V. Page, 4 Ves. 680. (a) Ahhot v. Massie, 3 Ves. 148. («) See the observations of Rolfe, B., 13 M. & W. 207. See, also, Lee v. Fain, 4 Hare, 251 (W] 5 M. & W. SB". (a) Wms. 993-4, and cases cited. {y) Ante, p. 219 ; 2 K. S. 8T. SPECIFIC LEGACIES. 885 other respects, they are distinguished from them to their disadvan- *age.(s) Again, if there be a specific bequest of a thing described as already in existence, and no such thing ever did exist among the testator s effects, the legacy fails. Thus, although a gift of " my grey horse" will pass a black horse, which is not strictly grey, if it be found to have been the testator's intention that it should pass by that description ; yet, if the testator had no horse, the executor is not to buy a grey one ; on the other hand, if the bequest is of " a horse," and no horse be found in the testator's possession at the time of his death, the executor is bound, provided the state of the assets will allow him, to procure a horse for the legatee.(a) It seems to have been once considered as the criterion of a specific legacy, that it is liable to ademption. (J) But this has since been re- peatedly denied. And it has even been held that a legacy may be specific, notwithstanding the testator expressly provides that it " shall not be deemed specific, so as to be capable of ademption. "(c) A legacy of quantity is ordinarily a general legacy ; but there are legacies of quantity in the nature of specific legacies, as of so much money, with reference to a particular fund for payment This kind of legacy is called by the civilians a demonstrative legacy ; and it is so far general, and differs so much in effect from one properly specific, that if the fund be called in or fail, the legatee will not be deprived of his legacy, but be permitted to receive it out of the general assets ; yet the legacy is so far specific, that it will not be liable to abate with ■general legacies, upon a deficiency of assets.(c?) The courts, in general, are averse from construing legacies -to be spe- cific : and the intention of the testator, with reference to the thing be- queathed, must be clear.(e) With respect to legacies of money, securities for money, debts, &c. " Under some circumstances, even pecuniary legacies are held to be specific, as of a certain sum of money in a certain bag or chest, (/) or in the hands of A. -.{g) or of 200/., the balance due to the testator from his partner on the last settlement between them, if the testator did notdraw such money out of the trade before he died.(/i) But a legacy of '£400 to be paid to A. in cash,"" is a general legacy. (t) So a legacy of money, to procure a specified object for the legatee : as of a sum to buy a ring,(y) or to purchase lands(&). or government securities^ for the legatee, is a (z) 'Wms. 994, and cases cited. (ai Wms. 994, and cases oiied. (B) Jac. & Walk. 601 ; Post, p. 399. (c) Jacques v. Chambers, 2 Coll. 436 ; Wms. 995. {d\ Wms. 995. (e) Ellis V, Wallcer, Ambl. 310; Kirhy y. Poller, 4 Ves. US; Innes v. Johnston, 4.Tes. 668 ; Webster v. Hale, 8 V-es. 413. {/) Lawson v. Stitch, 1 Atk. 508. \g) Sinion v. Pinke, -1 P. Wms. 540, by Ijiord ChanoeUor Parker: Crockat y. Orockat, 2 P, Wms. 164; Pulfford v. Hunter, 3 Bro. C. C. 416. (A) EUisv. Walker, Amb. 310. (i) Richards v. Richards, 9 Price, 226. {j) Apreece v. Apreece, 1 Tes. & Beam. 364. \k) Hintoa v. Pinke. 1 P. Wms. 539. {I) Lawson v. Stitch, I Atk. 507; Gibbons y. HiUs, 1 Dick. 324. 25 386 SPECIIIO LEGACIES. general legacy. So a bequest of an annuity out of, or charged on tKe personal estate, is a general legacy."(m) "Stock or government securities, or shares in public companies may be speciiically bequeathed, where, to use the expression often ap- plied, there is a clear reference to the ' corpius' of the fund.(?i) Thus the word ' my' preceding the word stock or annuities, has been several times adjudged sufficient to render the legacy specific: as where the bequest is of ' my capital stock of £1,000 in the India Company's stock :'(o) or a legacy is given ' oimy stock,' or in '■my stock,' or 'part of my stock.'(^) So where the testator, being possessed of £5,000 stock, bequeathed ' all the stock which I have in the three per cents, being about £5,000,' Lord Thurlow held the legacy specific."(2) So a bequest of all the testator's right, interest and property in thirty shares, in the Bank of the United States of America, is a specific legacy.(r) With respect to bequests connected with the realty. Every devise of land is specific :(s) and so a bequest of a lease for years of a farm,(<) is a specific legacy. So a bequest of a rent out of a term of years is specific ; as where the testator bequeathed £40 a-year to A. for life, out of his chattel estate at Kenn, and £10 a-year to B. for life, out of the same estate, which he gave to C. ; these several bequests were held specific.(M) But if it be apparent that the testator's meaning is to give the legatee an annuity ai all events^ the legacy will be a general one, though it is directed to be paid out of an estate or the rents of it ; consequently, though the fund out of which the legacy is directed to be paid should fail, the legatee will be' entitled to have his legacy made good out of the general per-, sonal estate.(v) But though general legacies do not become specific, because they are charged upon, or payable out of the proceeds of real estate, yet if the testator direct his freehold or leasehold estate to be sold, and dispose of the proceeds in such a form as to evince an intention to bequeath them specifically, the legacy will be properly specific.(w) So, if a testator sim- ply charges his real estate with a sum of money, and then bequeaths the money so charged,. the real estate alone is liable to the payment.(x) Again, where a testator in his will charges a legacy on a particular estate, and declares that it is to be raised out of such estate and not otherwise, ■ the general estate of the testator is not liable for the payment of the legacy, in the event of the particular estate being insufficient for that purpose.(4 (m) Alton V. Medlicot, cited in Lewm v. Lewim, 2 Ves. sen. 417 ; Hume v. Edwards, 3 Atk. 6dH. See, also, Sadkr v. Turner, 8 Ves. 617; Raymond v. Brodbelt, 5 Vea. 199; Kwh- Patrick v. Kirkpalrick, cited in Roberts v. Pocock, 4 Ves. 158 ; Wms. 996. (») See Sibley v. Perry, 7 Ves 529, 530. {o)AsKburner v. M'Guire, 2 Bro. C. C. 108 ;, Barton v. Cooke, 6 Ves. 461 ; Nbrris v. flarri- son, 2 Madd. 279,- 280. (p) Kirby v. Potter, 4 Ves. 750, 751, by Lord Alvanley. (gi Humphreys v. Humphreys, 2 Cox, 184; Wms. 997. (r) Walton v. Walton, 7 Johna. 258. (s) Forrester v. Leigh, Ambl. 173. (t' Long V. Short, 1 P. Wms. 403. (a) Long v. Short, 1 P. Wms. 403. Apd see the extract from Reg. Lib. in Cox's note. {v) Manny. Gopeland, 2 Madd. 223; Wms. 1004. (w) Page v. Leapingwett, 18 Ves. 463 ; 1- Rop. on Leg. 176, 3d ed. (x) Dickin V. Edwards, 4 Hare, 273, 276. {«) Powell T. Murray, 10 Paige, 256. LEGACIES, VESTED OE CONTINGENT. 887 With respect to bequests contained in a residuary clause : The ques- tion Avhether such bequests are specific or general, may become im- portant, where it is contended that the bequest is specific, so as to ex- onerate the personal estate, which is' the subject of it, from debts and legacies, and charge the realty therewith ; or where the personal estate, so bequeathed, comprises property which is wearing out rapidly, (such as leaseholds,) and it is given to one for life, remainder to another. The bequest of all a man's personal estate generally is not specific : the very terms of such a disposition demonstrate its generality.(a) And the circumstance of the bequest of the general personal estate being in the same sentence with that of the real, the devise of which is naturally specific, will not be sufficient to make it a specific legacy.(&) But if a man, having personal property at A. and elsewhere, bequeath all his personal estate at A. to a, particular person, the legacy is specific; and if there is a deficiency of assets to pay other legacies, such a legatee shall not be obliged to abate with the other legatees.(c) So where the testator bequeaths the residue of all his personal estate in the island of Jamaica, this is a specific legacy ;((^) and so is a bequest of all the tes- tator's goods and chattels in a particular country .(e) To what articles or property legatees are entitled, under particular modes of description of the things bequeathed, such as " goods," "chat- tels," "allmygoods," "household goods," "household furniture, ""stock on farm," " securities for money," " debts," &c., may, in some instances, become matter of question ; and the executor should, by proper inquiry, satisfy himself of the interpretation to be given to the language of the ■ will in. these respects, before discharging or paying the legacies. Of Legacies vested or contingent. It may be proper here to include some remarks relative to legacies as vested or contingent. •The cases establish the principle that contingent and executory inter- ests, though they do not vest in possession may vest in right, so as to be transmissible to the executors or administrators of the party dying before the contingency on which they depend takes effect ; but where that contingency is the endurance of life of the party till a particular period, the interest will obviously be altogether extinguished by his death i)efore that period.(/) The present object is to ascertain the circumstances under which a legacy is to be regarded as a vested interest, or as contingent on the event of the endurance of the life of the legatee ; or, in other words, in what cases the interest in a legacy will be so fixed as to be transmissi- (a) 1 Eop. Leg. 215, 3ded. . (b) 1 Ves. 138. (c) Treat. Eq. bk. 4, pt. 1, oh. 2, sec. 5 ; Sayer v. Sayer, 2 Vem. 688 : S. C, Free. Chano. 392., Id ) Nisbett v. Murray, 5 Ves- 1 50. (e) Moore v. Moore, 1 Bro. C. C. 12T. So of all the goods in a particular room : . Grem v. Symonds, 1 Bro. C. C. 129, in notis: or of ''all plate, Imen and furniWe in my house at A., or which shall be therein at the time of my decease :" Gayre v. Gayre, 2 Vem. 538 ; Shafts- iary v. Shafkhury, lb. 'I4'7 ; Land v. Deioj/nes, 4 Bro. C. C. 537 ; Wros. 1006., (/) Wms. 759 and 1035, and cases cited. 388 LBaACIES VESTED OR CONTINGENT. ble to the executor or administrator of the legatee, though he die before 4he time arrives for the payment of the money; and, on the other hand, in what cases the legacy will lapse by the death of the legatee. The general principle as to the lapse of legacies by the death of the legatee may be stated to be, that if the legatee die before the testator's decease, or before any other condition precedent to the vesting of the legacy is performed, the legacy lapses, and is not payable to the executors, or administrators of the legatee.(^) " It has been established from the earliest period, both in the ecclesi- astical courts and in equity, that unless the legatee survive the testator the legacy is extinguished ; neither can the executors or administrators of the legatee demand the same. And Swinburne puts the case of the testator and legatee being drowned in the same ship, or both being struck to death by the fall of a house, in which case he lays it down that, as they both died at the same time, the legacy is not due, and consequently not transmissible to the executors or administrators of the legatee.(A) " Not only in cases of bequests of money, or of other chattels in pes- ■ session, but also of a debt due from the legatee to the testator, the leg- acy will lapse by his death before the testator, and the executor of the legatee must pay the money.(i) Even in a case where a legacy is given to a man and his executors^ adrninistralnrs and assigns, or to a man and his representatives, if the legatee dies before the testator, though the executors are named, yet the legacy is lost; for the words "executors, administrators and as- signs," &c., are considered as only descriptive of the interest be- queathed ; and those who take by representation only, cannot be enti- tled to anything to which the person they represent, never had any title.(y) " Again, if a legacy be given to a man, and directed to be paid to him or Ms executors, or administrators, or personal representatives, or to his heirs, at the end of a year after the testator^ death, and the legatee die before the testator, the legacy intended for him will lapse.iA) "But this general rule may be controlled by the manifest intention of the testator, appearing upon the face of the will, that the legacy shall not- lapse, and by his distinctly providing a substitute for the legatee dying in his lifetime. The authorities appear to have settled that a testator may, if he thinks fit, prevent a legacy from lapsing;,, though, in order to effect this object, he must declare, either expressly or in terms from which his intention can be with sufficient clearness collected, what person or persons he intends to substitute for the lega- tee dying in his lifetime.(^) It is an established general proposition, that as to a devise or be- (g) 'Wms. 1035. (ft) See "Wms. on Bxrg. 1036 ; 2 Kent. Oomm. 434-5-6, and notes; Moehring v. Mikhell, 1 Barb. Oh. Rep. 264. (i) "Wms. on Exrs. 1037, and oases cited. (.;') "Wms. 1038, and oases cited. (k) lb. In Dickinson r. Purvis, (8 Serg. ARawle, 11,) there was a bequestof £500 sterling to a niece and her heirs, and the niece died in the- lifetime of the testator; and it was held that the legacy lapsed. (I) Wms. 1039-40, and oases cited. LEGACIES VESTED OR CONTINGENT. 389 quest to a designated individual, with a gift over in case of death, if the event happens in the testator's hfetime, a lapse does not necessarily ensue, but the ulterior gift takes effect on the testator's decease.(m) Further, it seems to be now established, that where there is a be- quest "to A. or his personal representatives," or "to A. or his heirs," the word " or," generally speaking, implies a substitution, so as to pre- vent a lapse.(?i) With respect to the application of the general rule above stated to legacies given in joint tenancy or in tenancy in common, it may be re- marked, that " if a legacy be given to two persons yomiZy, although one of them happen to die before the testator, such interest will not be con- sidered lapsed or undisposed of, but will survive to the other legatee. But where legacies are given to legatees as tenants in common, as where an aggregate fund is to be divided among them, nominaiim, in equal shares, if any of them die before the testator, what was intended for those legatees will lapse into the residue. The law is the same as to survivorship, in cases of joint tenants, and lapse in cases of tenants in common, when the testator revokes the interest originally given to one of them. But it must be observed, that where a legacy is given to a class of persons in general terms, as tenants in common, as to the children of A., the death of one of them before the testator will not oc- casion a lapse of slxxj part of the fund ; but those of the described class who survive the testator will take the whole."(o) By statute,(p) whenever any estate, real or personal, shall be devised or bequeathed to a child or other descendant of the testator, and such legatee or devisee shall die during the lifetime of the testator, leaving a child or other descendant who shall survive such testator, such de- vise or legacy shall not lapse, but the property so devised or bequeathed shall vest in the surviving child or other descendant of the legatee or devisee, as if such legatee or devisee had survived the testator and had died intestate. 'And this statute was held to apply where the will was executed previous to the Kevised Statutes, and the testator survived h^s son, a devisee under his will, but both died subsequent to the Ee- vised Statutes, (g) By the word descendant in this statute is not meant any relative to whom, in some possible contmgency, property of the testator might de- scend, but lineal descendants — issue of the body.(?-) A legacy to a sister's child, therefore, is not a legacy to a descendant of the testator. Thus, where the testator bequeathed his personal estate, after several legacies, " to his brother James and his children, and the child of his sister Catharine, to be equally divided between them and their heirs and assigns forever," and the child of his sister Catharine died before the decease of the testator, it was held that her share lapsed, and, there being no gift of the residue, passed to the testator's widow and next of kin, as in case of intestacy ; and further, that the issue of " the child of (to! 2 Jarman, 617 1 ; Lawrence v. Sebhard, 1 Bradf. Surr. Eep. 256. («) "Wms. 1041 to 1044, and oases cited. (o) lb. 1045-« (p) Eevised Statutes, part 2, chap. 6, title 1, see. 52, (2d vol.,) p. 66. (g) Bishop v. Bislwp, 4 Hill, 138. (r) Armstrong v. Moron, 1 Bradf. Surr. Rep. 314. 390 LEGACIES LAPSED BT THE DEATH OP THE LEGATEE, ETC. his sister Catharine " did not take the share intended for their deceased parent, by way of substitution, under the term "heirs," contained in the bequest; but the word "heirs" was there a term of "limitation," and not of purchase or substitution.(s) In conclusion of this portion of the subject of lapse, it may be men- tioned that where a bequest is made to a man as trustee for another person, the legacy will not lapse by the death of the trustee in the tes- tator's lifetime, (i) Of Legacies lapsed by the, Death of the Legatee after the Death of the Testator. If a legacy be given generally, without specifying the time when it is to be paid,' it is due on the day of the death of the testator, though, by statute,(w') not payable until after the expiration of one year from the time of granting letters testamentary or of administration. This delay is merely an allowance of time for the convenience of the execu- tor, and does not prevent the interest vesting immediately on the testa- tor's death. Hence, if the legatee happen to die within the year, his personal representative will be entitled to the lega('y.(?;) But when a future time for the payment of the legacy is defined by the will, the legacy will be vested or contingent, according as, upon construing the will, it appears whether the testator meant to annex the time to the payment of the legacy or to the gift of it. In ascertaining the intention of the testator in this respect, the courts of equity have established two positive rules of construction : 1st, That a bequest to a person payable or to be paid at or when he shall attain twenty-one yearsi of age, or at the end of any other certain de- terminate term, confers on him a vested interest immediately on the testator's death, as dehitum in prcesenti solvendum in futuro, and trans- missible to his executors or administrators ; for the words " payable" or " to be paid," are supposed to disannex the time from the gift of the legacy, so as to leave the gift immediate in the same manner, in respest to its vesting, as if the bequest stood singly, and contained no mention of time. 2d. That if the words " payable" or " to be paid" are omitted, and the legacies are given at twenty-one, or if when, in case, or provided, the legatees attain twenty-one or any other fature definite period, these expressions annex the time to the substance of the legacy, and make the legatee's right to it depend on his being alive at the time fixed for its payment ; consequently, if the legatee happens to die before that period arrives, his personal representative will not be entitled to the legacy.(w) The application of these rules and the exceptions to the same, are considered at some length in the treatise of Sir Edward Williams on the law of executors and administrators. (aj) The doctrine is also fully (s) Armstrong v. Moron, 1 Bradf. Surr. Eep. 314. (i!) Wms. 1050. (m) 2 R. S. 9-0, sec. 43 ; 4th ed. 2*75, sec. J8 ; Infra, p. 403. (v) See "Wms. on Exrs 1051. (lo) "Wms. on Exrs. 1051-2, ami oases cited. (x) See "Wms. on Exrs. 1051 et aeq. LAPSE OF LBaAOIES PAYABLE OUT OF THE REAL ESTATE. 391 discussed and maintained in the very able opinions delivered by Sav- age, C. J., and Edmonds, Senator, in the Court of Errors of this, state, in the case of Paterson v. ElUs.(y) It was there held that, where the gift of a legacy is absolute, and the time of payment only postponed, as where the sum of $1,000 is given to A., to be paid when he shall attain the age of 21, the time not being of the substance of the gift, postpones the payment, but not the vesting of the legacy ; and if the legatee die before the period specified, his representatives are entitled to the money. But where the legacy is given wh-en the legatee shall attain, or provided he does attain the age of 21, time is of the substance of the gift, and the legacy does not vest until the contingency happens. But even where the legacy is given when the legatee attains the age of 21, if the devisor directs the interest of the legacy to be applied in the meantime for the benefit of the legatee, there being an absolute gift of the interest, the principal will be deemed to have vested. So, the legacy will be deemed vested, if it be left to the discretion of a trustee to pay the legacy sooner than the time specified in the will ; and it seems that the mere appoint- ment of a trustee for the legatee during the minority, will have the same effect(3) Of the Lapse of Legacies payable out of the Real Estate. The rule with respect to the sinking of legacies charged upon and payable out of real estate, is somewhat different ; and there are cases where it has been held that a legacy, made up partly of personal estate and partly of money charged upon lands, and to be raised out of the same, has, so far as regarded the personal estate, vested, and lapsed as to the part which was to come out of the realtj(.(a) The true rule with respect to the vesting of legacies payable out of real estate, is this : where the gift is immediate, but the payment is postponed until the legatee, for instance, attains the age of 21 years, or marries, there it is contingent, and will fail if the legatee dies before the time of payment arrives : but where the payment is postponed in regard to the convenience of the person and the circumstances of the estate charged with the legacy — and not on account of the age, con- dition or circumstances of the legatee — ^in such a case it will be vested, ajid must be paid, although'the legatee should die before the time of payment.(6) The rule in question is always liable to the operation of the more general and powerful rule, namely, that the intention of the testator, to be gathered from the words of the will, must prevail.(c) It must be further observed, with respect to this general rule, that it may clearly be controlled by a direction in the will that the legacy should vest on the testator's death : thus, in a modern case,(ci) the testa- (if) 11 Wen. 259. (z) See. also, Van Wyck v. Bloodgood, 1 Bradf. Surr. Rep. 154. (a) 2 Ed. Ch. Rep. 1 6:!. (6) Marsh v. Wke':ler, 2 Ed. Ch. Rep. 163 ; 1 Roper on Leg. chap. 9; BirdsaU v. Sewkit, I Paige's Ch. R 33 ; Sarris v. Fly, 7 lb. 429. (c) Brown v. Wonler, 2 T. & OoU. C. C. 134, 138. (d) WatUns v. Cheek, 2 Sim. & Stu. 199. 392 LAPSE OF LEGACIES PATAELB OUT OP THE REAL ESTATE. tor gave legacies charged on his real estate to his two daughters, " th^ 'same to vest in them immediately on my death, but to be paid on their attaining their ages of twenty -one years, and the interest thereof in the meantime to be applied in their maintenance and education." The daughters both died infants ; and it was contended that the legacies, as against the real estate, must sink for the benefit of the devisee : but Sir John Leach, V. C, held, that this was prevented by the express direction that the legacies should vest on the death of the testator ; and, therefore, that the personal representatives of the daughters were enti- tled to the legacies.(e) One sort of conditional legacy has thus been considered, viz., where the condition is that the legatee shall be alive at a particular period. It remains to notice this species of legacy generally. A conditional legacy is defined to be a bequest whose existence der pends upon the happening or not happening of some uncertain event, by which it is either to take place or to be defeated.(ee) No precise form of words is necessary in order to create conditions in wills ; but whenever it clearly appears that it was the testator's in- tent to make a condition, that intent shall be carried into efE'ect.(/) In the case of Tattersall v. nowell,{ff) a legacy was given, provided the legatee changed his course of life, and gave up all low company and frequenting public houses. And Sir W. Grant held, that this was a condition such as the court would carry into effect, and directed the master to inquire whether the legatee had discontinued to frequent pub- lic houses, keeping low company, &c. So, in Dustan v. DusPin,{g) the executors were required by the will of the testator to pay to the legatee annually $200, and also one-fifth of the testator's estate, in case the legatee should refrain from vicious habits, and conduct hiftiself with sobriety and good morals. About two years after the testator's death, the legatee filed his bill against the executors, insisting that he had reformed, and claiming the payment of his share of the estate. The defendants had refused to pay over to the complainant his one-fifth of the estate, not being satisfied of his coni- plete reformation. The provision in the will was supported, and as the complete reformation of the legatee was not distinctly proved, and a suflicient time had not elapsed between the death of the testator and the filing of the bill to enable the executors to form a sound opinion as to the permanency of the legatee's good conduct, it was held that the executors were right in refusing to place the whole property in his hands at that time, and it was referred to a master to ascertain and re- port whether there had been such a permanent reformation in hi^ character and habits as to entitle him to receive the whole amount be- queathed to him, at that tirne. Conditions are subject to the well known division into conditions precedent and conditions subsequent. When a condition is of the former sort, the legatee has no vested interest till the condition is per- (e) "Wms. 10V8-9. (ee) 1 Rop. Leg. 645, 3d. ed.| Wms. 1081. (/) Wma 1081 ; Ba/rrmo v. Madan, 2 Johns. 145. (f) 2 Meriv. 26. {g) 1 Paige, 609. LAPSE OP LEGACIES PAYABLE OUT OF THE REAL ESTATE. 393 formed : when it is of the latter, the interest of the legatee vests in the first instance, subject to be divested by the non-performance or breach of the conditioa.(g'g') Omitting all discussion of the subjects of the construction of condi- tional legacies ; of conditions impossible, illegal or repugnant, or in re- straint of the spending of the legacy ; of the performance of conditions, whether precedent or subsequent ; of conditions to prevent the con- testing of the will, in restraint of marriage, &c., as tending to enlarge this work beyond its proper limits ; it is still deemed expedient, in connection with the present topic, to advert to the rules laid down with respect to legacies given to executors. " Where legacies are given to persons in the character of executors, and not as marks of personal regard only, such bequests are considered to be given upon an implied condition, viz. : that the parties clothe themselves with the character, in respect to which the benefits -were intended for them. 'Nothing is so clear,' said Lord Alvanley, in Har- rison V. RowleyQi) ' as that if a legacy is given to a man, as executor, whether expressed to be for care and pains or not, he must, in order to entitle himself to the legacy, clothe himself with the character of exe- cutor.' "In order to make a proper application of this rule, two inquiries are necessary : First, when shall a legacy be regarded as given to a man in the character of executor? Secondly, what shall be a sufficient assumption of the character of executor to entitle the legatee, when a legacy is so given ? " First, when a legacy shall be regarded as given to a legatee in the character of executor, the presumption is, that a legacy to a person ap- pointed executor, is given to him in that character, and it is on him to show something in the nature of the legacy, or other circumstances arising on the will, to repel the presumption. " But this presumption will be rebutted, if it should appear, either from the language of the bequest, or from the fair construction of the whole will, that a bequest to a person who is named executor, is givSn to £im independently of that character ; and then the legatee will be entitled to receive the legacy, whether he accepts the office or not. " Secondly, what shall be a sufficient assumption of the character of executor to entitle a legatee, when a legacy is given to him in that character? If the legatee prove the will, with an intention to act un- der it, that will be a sufficient performance of the condition ; or, if he unequivocally manifests an intention to act in the executorship, as by giving directions about the funeral of the testator, and be prevented by death from further entering upon his office, that will also be a per-- formance of the condition.(AA) " But the conduct of an executor after proving the will, may be such as to demonstrate that, instead of a lona fide intention to execute the trusts, he procured probate as a means of enabling him to violate, in the grossest manner, the confidence reposed in him by the testator. In (gg) Wms. 1081. (ft) 4 Tea 216. Qih) "Wms. J 103, and cases cited. 394 LAPSE OF LEGACIES PAYABLE OUT OP THE REAL ESTATE. sucTi a case, the mere act of proving tlie will cannot entitle Mm to the legacy meant for him."(t) Jforris v. Kent{j) was a case under the present head, and was, in some respects, peculiar. There the testator appointed the defendant an executor of his will, and accompanied the appointment with a he- quest, in these words — " hereby giving my said executor ten thousand dollars, for his care and trouble in executing that office." The widow of the testator, who was named an- executrix, proved the will, and took out letters testamentary. The defendant, from apprehensions of great trouble in executing the will, and also of the inadequacy of the estate to discharge the legacy to him, at first resolved not to undertake the trust. In consequence, expenses were incurred to the amount of $4,000, in the employment of a professional person as agent, to attend to the affairs of the estate ; such assistance being absolutely necessary. Suh- sequently the widow, becoming dissatisfied with the agent, prevailed upon the defendant to act in the business, and he accordingly quahfied as executor, and entered upon the active duties, taking charge of and managing the affairs of the estate. A balance of money which had re- mained in his hands he claimed a right to retain, towards payment of the legacy of $10,000. The bill was filed against him by the widow and son of the testator, who were the principal devisees under the will, for an account ; and they insisted that the defendant had no right to retain for the whole of his legacy. On a reference to a master, he allowed $6,000 to the de- fendant, being the balance of the Jegacy, after deducting the sum paid to the agent., To this report the defendant excepted, because the mas- ter had not allowed him, the whole sum of $10,000, and there was an- other exception for disallowance of interest. The question in the case was, whether, isinder the circumstances, there should be a deduction from, or an apportionment of, the execu- tor's legacy. In none of the previous cases had an abatement or ap- portionment, according to the services rendered, been made a question. It was concluded that where a legacy to an executor is given in express terms, for care and trouble in executing the office, and to one of several executors, and this one delays, and for a time refuses to act, whereby the estate is put to additional expensefor services which the executor was expected to perform, and for which the legacy was given, a court of equity should interfere to lessen the amount of his legacy, by charging him with what may fairly be considered the additional expense brought upon the estate by such delay or refusal ; and that the present defendant was chargeable . with the value of the services performed by the agent, which were within the province of the execu- tor, and could equally as well have been performed by the defendant in that capacity, but not for the value of the services rendered by the agent in his professional character, for legal advice, and consequently not within the scope of the executor's duties ; and that, in ascertaining upon this principle the sum to be deducted from the defendant's legacy, regard should be had to the amount of the latter, and to the whole ser- O) Wma 1104. 0) 2 Edw. Chan. Rep. IIS. CUMULATIVE LEGACIES. 395 vice -which the executor was to perform, so that the allowance for the agent's services for the time he was employed, and the importance of his acts, might not appear disproportionate to the whole of the services which were expected of the executor for the compensation often thou- sand dollars. In conclusion, it may be mentioned, that where personal property is bequeathed to executors, as trustees, the probate of the will is an ac- ceptance of the trust.(A;) . Of Cumulative Legacies. The subject of cumulative legacies is entitled to a passing notice. Legacies are said to be cumulative, as conti a-distinguished from such as are merely repeated. Where the testator has twice bequeathed a leg- acy to the same person, it becomes a question whether the legatee be entitled to both or only one ; i. e., whether the second legacy shall be regarded merely as a repetition of the prior bequest, or whether it shall be construed as an additional bounty, and cumulative to the former benefit. On this point the intention of the testator is the rule of con- struction.(Z) The genferal rule on this subject, from a review of the numerous cases, appears to be that where the same specific time, or the same sum is repeated in the same writing, the legatee can claim the benefit of one legacy only. The latter bequest is held to be a substitution, and they are not taken cumulatively, unless there be some evident intention that they should be so considered, and it lays with the legatee to show that intention, and rebut the contrary presumption. "Where two leg- acies of quantity of unequal amount are given to the same person, in the same instrument, the one is not merged in the other, but the latter shall be regarded as cumulative, and the legatee is entitled to both. And where two bequests are in different instruments, as by will in the one case, and by a codicil in the other, whether of equal or unequal amounts, the presumption is in favor of the legatee, and the burthen of contesting that presumption is cast upon the executor. The presump- tion either way, whether against the cumulation, because the legacy is repeated in the same instrument, or whether in favor of it because the legacy is by different instruments, is liable to be controlled and repelled by internal evidence, and the circumstances of the case.(m) Of the Satisfaction of Debts by Legacies. It is a rule established in the courts of equity, that where a debtor bequeaths to his creditor a legacy equal to or exceeding the amount of his debt, it shall be presumed, in the absence of any intimation of a CQjitrary .intention, that the legacy was meant by the testator as a satis- faction of the debt. This rule, however, though it has long prevailed, has met with the censure of several eminent judges, and the courts (k) Mucklow V. Fuller, Jacob, 198 ; Wms. 1105. {h Wms 1105. (m) Se Witt v. TcOes, 10 Johns. Rep. 156. 396 SATISFACTION OF DEBTS BT LEGACIES. have inclined to lay hold of any minute circumstances whereupon to ground an exception to it. Thus the presumption of satisfaction shall not be made, .where the debt was not contracted till after the making of the will; for the testa- tor could not have intended by the legacy to have satisfied a debt which did not then exist :{n) nor where the debt is due upon a current ac- count ; for the state of the account, and on whose side the balance lay, might be unknown to the testator :(o) nor where the debt was upon a bOl of exchange, or other negotiable security ; for the debt might have been transferred to a stranger by the legatee passing away the instrument.(^) Again, an express devise for the payment of debts and legacies, the creation of a fund for the payment of debts, and a charge of the legacy upon that fund — if the legacy be uncertain, and made to depend on a contingency — if the payment of the legacy be postponed by the will to a time subsequent to that at which the debt is due and payable : or if the debt be due at the time of the testator's death, and the legacy be not made payable immediately, but at some future time, are each cases in which a legacy will not be considered as a satisfaction of the testa- tor's debt ;(§') and where the legacy is of less amount than the debt, it shall not be deemed a part payment or satisfaction.(r) This subject was discussed by the Supreme Court, in the case of Wil- liams V. Crary, surviving executor, &c.,{s) and Chief justice Savage came to the conclusion, that the exceptions to the rule are so numerous, that the rule should be stated differently, to wit, that a legacy shall not be deemed a satisfaction of the pre-existing debt, unless it appears to have been the intention' of the testator that it should so operate.(i) Again; where the plaintiff sued the executors for board of a third person, which the testator had agreed to pay, it was held, that a legacy left by the testator to the wife of the plaintiff exceeding the amount of the claim, was not a satisfaction of the debt.(M) " Again ; a lega,cy of a specific chattel, however great its value, will (k) Where A was bound by bond to pay B, during her lifetime, an annuity of $1,000, aiiil, at the time of the dec -aae of B, the sum due upon the bond was $4,000, it was hdd, ihat A was not entitled to recover an unsettled demand of $1,500 against the estate of B, notwith- standing that the bond had been cancelled, in pursuance of a direction in the will of B that it should be so cancelled, on the payment by A of $1,600 — the testamentary provisions in relation to the bond being cousidertd not as a legacy, but as a proposition of a settlement of all claims and demands between A and B — and it was holden that A was not entitled to recover, even for demands arising after the making of the wUl. Pa/rol proof of the intention of the testator may, in such cases, be resorted to, not to give a construction to the language of the will, but to prove circumstances whereon to found inferences or presumptions. W3- Uams V. Crary, 4 Wend 443-4. (o) However, in Williams v. Crary, 8 Cowen, 246, it was held, that a general bequest of a sum of money to a debtor, equal to, or exceeding the debt due, though it stand in an un- liquidated account, is a satisfaction, if it appear either on the face of the wUl, or by evidence aliunde, to be so intended. (p) Wms 929-30. (?) Edelen v. Dent, 2 Gill & Johns. 185. A devise of lands to a creditor, though it be greater in value than the amount of the debt does not extinguish a debt or claim whiotfhe has against the testator Patridge's Admr v. Patridge, 2 Harr & Johns. 6S (r) Granrmr's case, 2 Salk 508 ; OrahamY. Graham, 1 Ves. sen. 263 ; WiUiamsY. Crary, 4 Wend. 449, per Savage, Ch, J. (s) 5 Cowen, 368, 8 lb. 216, and 4 Wend, 449. «) 12 Wend. 63. See, also, lb. 349. (u) Mulheran's Exits, v. Gillespie, 12 Wend. 349. LEGACY BY A CREDITOR TO HIS DEBTOR. 397 not be a satisfaction of a debt, unless the testator bequeaths it with such condition expressed, and the legatee accepts it by way of satisfaction. " It is said, that a legacy shall in all cases be construed as a satisfac- tion, in case there be a deficiency of assets."(v) Of a Legacy hy a Creditor to his Debtor. Where a creditor bequeaths a legacy to his debtor, and either does not notice the debt, or mentions it in such a manner as to leave his intentions doubtful, and after his death the securities for the debt, if any exist, are found uncancelled among the testator's property, the courts of equity do not consider the legacy to the debtor as necessarily, or even prima facie, a release or extinguishment of the debt, but require evidence clearly expressive of the intention to release : and if such in- tention does not appear clearly expressed or implied on the face of the will, evidence from other sources will be admitted.(w) " In the present case," says Vice-Ohancellor McCoun, in Stagg v. Beehnan and others, Executors of Rutgers, deceased,{x) "the evidence of' such intention is wanting, and the contrary is plainly inferable. The amount of bounty is fixed in the shape of a pecuniary legacy of one thousand dollars ; an advance of five hundred dollars afterwards takes place ; a note is given for it ; this note is kept in the testator's posses- sion uncancelled ; and in the last codicil, nothing appears to show an intention to increase the bounty beyond what was originally contem- plated ; such, however, will be the effect, provided the complainant can retain the sum advanced, and also" receive the benefit of the whole original bequest ; taking the note and preserving it among his papers, are all circumstances which clearly indicate that the testator intended the advance should remain as a debt against his legatee, and be de- ducted and retained by his executors. This they have a right to do."{y) The will authorized the executors at their discretion to compound debts, where the debtors, from misfortune or otherwise, might be un- able to pay, or, if his executors thought it just, to forbear suing such debtors altogether. And the Vice-Chancellor held that the executors could not release this debt and pay the legacy- under that provision : He says, "the clause in the will authorizing the executors to com- pound with any of the debtors to the estate, and to forbear suing alto- gether, is not sufficient to warrant a contrary conclusion. It does not go to the extent of releasing the debtors. It shows the humane and benevolent feelings of the testator towards those who might be poor and unfortunate ; and although the complainant may be of that class, (as it was conceded that he was,) still the executors would hardly be justified, under their discretionary power, in suffering the opportunity to pass of realizing this debt, by a non-exercise of their right to retain and deduct the amount of the note and interest out of the legacy." i (v) Toller, 331. (w) 1 Rop. Leg. 61, 3d ed; Wms. 935, and cases cited; Clarke v. Bogardus, 12 Wen. 67 ; Slagg v. Beekman, 2 Edw. Ch. Rep. 89 ; Oln/rke v. Bogardus, Id. 387 ; Rickets v. lAvingston, 2 John. Cas. 98. (cc) 2 Ed. Ch. Rep. 92. (y) "J^P V. Wood, 2 P. Wms. 128 ; Eankin v: Barnard, 5 Mad. R. 32." 398 SATISFACTION OF DEBTS BY LEGACIES. Where a testator recites that a legatee is indebted in a certain sum that recital binds the legatee, except in case of a clear mistake of figures, "(z) Where a legatee is indebted to the testator, the executor may retain the legacy, either in part or full satisfaction of the debt, by way of set-off.(a) And so much of such debt as can be collected by the executor, in- cluding the interest due at the testator's death, is to be considered and treated as a part of the capital of the estate, and must be apportioned and distributed accordingly. (6) The rule is, that if a legacy be left to a testator's debtor, the debt shall be deducted from the legacy, for the legatee's demand' is. in respect to the testator's assets, without which, the executor is not liable, and, therefore, the legatee iu such case, is considered by a court of equity to have so much of the assets already in his hands as the debt amounts to, and consequently to be satisfied pro tanto, for there can be no pre- tence to say, because the testator gives a legacy to his debtor, it is an argument to show that the testator meant to remit the debt.(c) In Olarke v. Bogardus,{d) the testatrix gave to her daughter a legacy of $750, as an evidence of her love and affection, and directed in case of the death of the daughter, that the same be paid to her children, or to their legal representatives. The hiisband of the daughter was in- debted to the testatrix on a bond, conditioned for the payment of $250 annually, to the obligee during her natural life. On the face of the will, neither the husband nor the bond in question were mentioned, and it was held that the legacy was not a satisfaction of the debt due the testatrix. " The legacy," said the court, " is given to the daughter of the testatrix, not as the extinguishment of a debt, but as evidence of the love and affection of the testatrix to a daughter who was well provided for, and in case of her death, to her children and their repre- sentatives, as if she intended that the husband should have no control over it."(e) At law, a testamentary act cannot operate as a release of a debt owing to the testator.(/) ' By statute,(g') as has already appeared in connection with the subject of the inventory, (A) the discharge or be- quest in a will of any debt or demand of the testator, against any ex- ecutor named in his will, or against any other person, shall not be valid as against the creditors of the deceased ; but shall be construed only as a specific bequest of such debt or demand ; and the amount thereof shall be included in the inventory of the credits and effects of the de- ceased, and shall, if necessary, be applied in the payment of his debfe; and if not necessary for that purpose, shall be paid in the same man- ner and proportion as other specific legacies. i: z) "BoUnsonv.Branshy, 6 Mad. 348; "Wins. 1119." [a) Wms. 935. (J I Smith V. Kea/rfiey, 2 Barb. Oh. Eep. 533. c) Tol. 338; 12 Wen. 69. ' ) 1 2 Wen. 67. 'e) See, also, GlarJce v. Bogadns, 2 Edw. Oh. Bep. 387. (/) Ram. on Assets, 469 ; Siagg y^Beekmcm, 2 Edw. Oh. Rep. 91. (g) 2 R. S. 84, sec. 14. (ft) Ante, p. 247. ADEMPTION OF SPECIFIC LEGACIES. With respect to the effect of appointing a debtor to be executor, it has also already appeared, in connection with the subject of the in- ventory, (/i/i) that by statute, (i) the naming of any person executor in a will, shall not operate as a discharge or bequest of any just claim which the testator had against such executor, but such claim shall be included among the credits and effects of the deceased, in the inven- tory, and such executor shall be liable for the same, as for so much money in his hands at, the time such debt or demand becomes due ; and he shall apply and distribute the same in the payment of debts and legacies, and among the next of kin, as part of the personal estate of the deceased. The revisers, in their note to this section, sufficiently explain its ob- ject, and the defects and mischiefs in the old law which it was intended to remedy and prevent. They say, as follows : " The debt of an ex- ecutor is now liable to creditors, and in some cases to legatees ; but when not required for these purposes, it is discharged or belongs to the executors, and is not to be distributed among the next of kin, unless it appear on the face of the will that the testator did not intend to dis- charge the debt.(n) Few persons are aware of this rule ; and as well to avoid the disputes that arise, as to establish what is believed a just rule, this section is copied substantially from the laws of Maryland. Since an allowance is made to executors(y) for their services, the reason of the old rule has ceased. The case of Gardner v. Miller, (Jj) shows how strongly the Supreme Court leans against that rule."(A) Creditor JExecuior. A creditor who is appointed, executor or administrator, as has also already been seen, cannot retain any part of the property of the de- ceased in satisfaction of his own debt or claim, until it shall have been proved to, and allowed by the surrogate ; and such debt or claim is not entitled to any preference over others of the same class.(M) Of the Ademption of Specific Legacies. The subject of the ademption of legacies, is next to be considered. The general rule is, that in order to complete the title of a specific le- gatee to his legacy, the thing bequeathed must, at the testator's death, remain in specie, as described in the will ; otherwise, the legacy is con- sidered as revoked by ademption. For instance, if a legacy be of a specified chattel in possession, as of a gold chain, or a bale of wool, or a piece of cloth, the legacy is adeemed, not only by the testator's sell- ing or otherwise disposing of the subject in his lifetime, but also if he should change its form so as to alter the specification of it, as if he should convert the gold chain into a cup, or the wool into cloth, or (hh) Ante, p. 241 See, also, KecJer v. MUler, 2 Paige, 149. (i) 2 R. S. 84, sec. 13. ' (I'i) 2 Oowen's Rep. 809. \j) See post, chap. 12. Ijj) J9 Johns. Kep. 88. (k) 3 R. & or. S., App. 640. {kk) 2 R. S. 88, sec. 33 ; Ante, 368. 400 ADEMPTION OF SPECIFIC LEGACIES. make the piece of cloth into a garment, the legacy shall be adeemedil) And if a specific legacy does not exist at the death of the testator, it la adeemed. And this rule prevails without regard to the intention of the testator or the hardship of the csse.{ll) It must here be observed, that the rule of ademption does not ap- ply to deixionstrative legacies ; i. e., to legacies of so much money with reference to a particular fund for payment ; as, for instance, legacies given out of a particular stock, or debt, or term ; for, although the par- ticular fund be not in existence at the testator's death, the legatees will be entitled to satisfaction out of the general estate.(m) A change of the subject matter of a legacy into a different fund, does not defeaD the bequest.(7nm) So, where the testator being the owner, at the time of making his will, of a bond for six thousand dollars, by his will directed the same to be collected and divided three years after his decease ; and gave and bequeathed the same in certain different specified sums to various lega- tees ; and afterwards, the obligors in the bond assigned to the testator a certain bond and mortgage for the same amount, and thereupon re- ceived back their bond ; and the substituted bond and . mortgage re- mained uncollected among the assets of the testator at the time of his death, it was held that the legacies were general and were not adeemed.(«) If a debt, specifically bequeathed, be received by the testator, the legacy is adeemed ; because the subject is extinguished, and nothing remains to which the words of the will can apply. So a partial receipt by the testator of the debt specificially bequeathed, will operate as an ademption pro tanto.{o) Thus, where the testator, by his will, be- queathed to his grandchildren, D. H. P. and J. H. P., the proceeds of a bond and mortgage^ conditioned for the payment of $8,000, ^hich he held against B. and S., and previous to his death, the testator commenced proceedings for the collection of the amount due iipon' the bond, which resulted in a sale by the mortgagors to N. Y. of a part of the mortgaged premises, for the sum of $5,000 ; of which, $1,700 was paid to the testator, and receipted on the mortgage, and the balance was secured by the bond of N. Y. & G. Y., for $3,300, payable to the testator, and indorsed by him as a payment upon the mortgage ; but the lien of the mortgage upon the part of the premises purchased by N. Y. was not released, and the testator re- ceived upon the bond of K Y. & G. Y., the sum of $1,641 during his lifetime : it was held, that the legacy bequeathed to D. H. P. and J. H. P., was a specific, and not a general pecuniary legacy, and that to the extent that any part" of the proceeds of the bond and mortgage were used by the testator in the payment of debts or otherwise, so as > to have lost their separate existence or identity, as such proceeds, the legacy was, pro tanto, adeemed ; and that the surviving legatee was not (f) Wma. 1132. See, also, Wallon v. Walton, 1 John. Ch. Rep. 2G2. (ll) Beck, &c. T. McGillis, 9 Barb. Sup, Ct. Rep. 35. (m) Wms. 1132, and eases cited; Doughty v. StiUwell, I Brad. Sur. Fep. 300. (mm) Gardner v. Prinlup, 2 Barb. Sup. Ot. Rep. 83 ; Walton v. Walton, 1 Johns. Ch. Rep. 258. (n) Doughty v. StiUwell, 1 Bradf. Surr. Rep. 300. See, also, Stotd v. Bart, 2 Halsted K 414. («) Wms. on Bxrs. 1 133-4, and cases cited. ADEMPTION OF SPEOIFIO LEGACIES. 401 entitled to be reimbursed out of the testator's estate, for the moneys received by the testator upon the mortgage, or upon 'the bond given by K Y. & G. Y. It was held, further, that what remained due upon the bond of N. Y. & G. Y., at the death of the testator, was the proceeds of the original securities, and that that sum was actually still due upon, and secured by the mortgage ; the bond of N. Y. & G. Y- being no more than a collateral security to that amount. And that the amount due upon such bond passed as a part of the specific legQ.cj.{j)) No distinction exists with respect to a specific legacy of a debt be- tween a compulsory and a voluntary payment of it to the testator ; in other words, between a case where the testator himself calls in a debt which he has bequeathed ; and a case where the debtor unprovoked, and without solicitation, thinks fit to pay it. And it seems, it may now be considered as established, that the only.rule to be adhered to in de- termining upon the ademption of a specific legacy, is to see whether the subject of the specific bequest remained in specie at the time of the testator's death ; for if it did not, then there must be an end of the be- quest ; and the idea of discussing what were the particular motives and intention of the testator in each case, in destroying the subject of the bequest, would be productive of endless uncertainty and confusion.(^) When stock is specifically bequeathed, and it does not wholly, or does only in part exist at the testator's death, the legacy will either be totally or partially adeemecl, as the case may be. And it is said that the legacy is irretrievably adeemed by the sale of the stock, and will not be revived by a new purchase of similar stock by the testator.(r) But no ademption will take place when the stock specifically be- queathed is exchanged by act of law.(s) And _ where the testator, at the date of his will in 1830, had one hundred shares of the stock of the Firemen's Insurance Company, and by his will he bequeathed to ■his wife his stock iijithe Firemen s Insurance Company ; and by the great fire in Decernber, 1835, the stock of the Firemen's Insurance Company was rendered worthless, the whole capital stock of the com- pany being absorbed by the losses which it incurred ; and by an act of the Legislature, the company, with other insurance companies, was authorized to call upon its stockholders to fill up its capital stock, and the testator filled up but forty shares of his stock, and suffered the re- mainder to be issued to others, pursuant to the provisions of the act, and he owned the 40 shares at the time of his death ; it was held, that as to so much of the stock the legacy was not adeemed. (<) As to ademption of specific legacies of goods, it must be observed, that where the disposition of the subject is not absolute, the legacy will not be adeemed ; as where a testator pawns or pledges an article speci- fically bequeathed, a right of redemption- is left in him, and passes to the legatee at his death, so as to enable him to call on the executor to redeem and deliver it to him.^^it) (p) Gardner v. PrirUup, 2 Barb. Sup. Ct. Rep. 83. (q) Humphries v. Evmphries, 2 Cox, 185 ; Wms. on Exrs. 1134-5, and oases cited. See, also, Blackslone v. Bkcksione, 3 Watts B^ 331. ir) See Wms. on Exrs. 1 ISS-S-Y, and cases cited, s) "Wms. 1136; Walton v. Walton, 1 Johns. 0. R. 262-3. (i) Havens v. Havens and others, I Sand. Oh. Rep. 324. (w) Wms. nsi. 26 402 PAYMENT OF LEGACIES. By statute, as has heretofore appeared in connection with the sub- ject of the revocation of wills, it is provided that a conveyance, settle- ment, deed or other act of a testator, by which his estate or interest in property previously devised or bequeathed by him, shall-be altered but not wholly divested, shall not be deemed a revocation of the de- vise or bequ'est of such property ; but such devise or bequest shaH pass to the devisee or legatee, the actual estate or interest of the testator, which would otherwise descend to his heirs, or pass to his next of kin, unless in the instrument by which such alteration is made, the inten- tion is declared that it shall operate as a revocation of such previous devise or bequest. But if the provisions of the instrument by which such alteration is made, are wholly inconsistent with the terms and nature of such previous devise or bequest, such instrument shall ope- rate iiS a revocation thereof, unless such provisions depend on a condi- tion or contingency, and such condition be not performed or such con- dition do not happen, (v) ' OF THE PAYMENT OF LEGACIES. AU Debts must he paid before any Legacies are satisfied. Attention is how to be given to the payment of the legacies. It is obvious that as the whole personal estate is liable in the hands of the executor to the payment of the debts of the testator, the executor must take care to discharge them before he satisfies any description of legacy. There is no distinction in this respect in favor of specific legacies. Hence, if an executor, although acting»6ona fide, and u!llder a convic- tion that the assets are amply sufficient for the myment of the testa- tor's debts, permits specific legatees to retain or possess themselves of the articles bequeathed to them, he will be answerable for the value of those articles, with interest, if there should ultimately be a deficiency of assets, although the deficiency should be occasioned by subsequent events, which he had no reason to anticipate ; and the court will direct an account to be taken of the value of the property so possessed by the legatees, and interest to be computed, unless it is certain that the as- sets will ultimately be sufficient to pay all the creditors.(M;) Where the executor having notice of a claim against the estate of their testator, proceeded to pay some of his debts in full, and to make distribution of a portion of his estate among his children and legatees; and afterwards the claim in question was established, whereby the es- tate turned out to be insufficient for the payment of all the claims against it ; it was held, that though the executors had acted in good faith, they were, nevertheless, liable to the creditors to the full extent of all the assets of the deceased ; and that the payments to the legatees and next of kin of the testator should be disallowed, (a;) (v) 2 R. S. 65 ; 4th ed. 247 ; Ante, p. 323. See Doughty v. SiiUweU, 1 Brad. Suit. Eep. 300 ; Adams v. Wmne, 1 Paige, 91. (w) Wms. 1149, and cage cited. Tok v. Bardy,. 6 Cowen, 339.. (a) Chyion v. Wa/rdell, 2 Brad. Surr. Rfep. 1. PAYMENT OF LEGACIES. 403 With respect to contingent debts, a question of great importance for- merly existed : namely, whether an executor could safely make pay- ment of legacies, or deliver over a residue, where there was an out- standing covena,nt of the testator (or bond with a condition or the like) which had never yet been broken, and which might or might not be broken thereafter^ Under the Eevised Statutes, all questions of this kind are set at rest. By the publication of a notice pursuant to the provisions of the statute relative to the payment of the debts of the deceased, inserted in the last preceding chapter,(y) all claims against the deceased, for which the executor or administrator is liable, are as- certained. If a claim against the deceased, upon which his liability is contingent, be presented to the executor or administrator under the notice, it has been heretofore intimated(2;) that his proper course was to resort to a competent court to determine upon the settlement 6f his ac- counts, whether any, and if any, how much of the estate of the deceased should be reserved to await the question as to the liability of the de- ceased. The payment of debts of an inferior degree, and the discharge and payment of legacies, and distributive shares are, it was shown, protected as against claims of what description soever, not presented under the notice. The holder of a claim against the deceased, whether his liability is contingent or certain, not presented under the );iotice, it appeared had his remedy only against the assets of the estate remain- ing in the hands of the executor or administrator at the time of a suit commenced for the claim, or against assets thereafter to come into his hands, or against the legatee or next of kin of the testator or intestate. The executor having published the notice prdvided for ,by the statute, may safely pay and discharge the legacies of 'the testator, without in- curring any risk of being afterwards called upon to pay contingent liabilities of the testator, the claims upon which were not presented under the notice. The following statutory provisions relate to the payment of egacies : Sec 43. JSTo legacy shall be paid by an executpr or administrator until after the expiration of one year from the time of granting letters testamentary or of administration, unless the same are directed by the will to be sooner paid.(ffl) Sec. 44. In case a legacy is directed to be sooner paid, the executor or administrator may require a bond, with two suiiioieijt sureties, con- ditioned that if any debts against the deceased shall duly appear, and which there shall be no other assets to pay, and there shall be no other assets to fst,j other legacies, or not sufficient, that then the legatee shall refund the legacy so paid, or such ratable proportion thereof, with the other legatees, as may be necessary for the payment of the said debts, and the proportional parts of such other legacies, if there be any, and the costs and charges incurred by. reason of the payment to such legatee ; , and that if the probate of the, will, under which such legacy is paid, shall be revoked, or the will deplared yoid, then that such le- (y) See.oKfe, p. S?3. (z) Ante, p. b67. (a) 2 R. a 90 ; 4th ed. 275-6. 404 PATMENT OF LEGACIES. -gatee shall refund tlie whole of such legacy, with interest, to the execu- tor or administrator entitled thereto.(&) Sec. 45. After the expiration of one year from the granting of any letters testamentary or of administration, the executors or administra- tors shall discharge the specific legacies, bequeathed by any will, and pay the general legacies, if there be assets ; and if there be not sufficient assets, then an abatement of the general legacies shall be made in equal proportions. Such p.ayment may be enforced by the surrogate in the same manner as the return of an inventory, and also by a suit on the bond of such executor or administrator, whenever directed by the surrogate. Sec. 46. In case any legatee is a minor, his legacy, if under the value of fifty dollars, may be paid to his father, to the use and for the benefit of such minor.(c) ' Sec. 47. If the legacy be of the value of fifty dollars or more, the sg-me may, under the direction of the surrogate, be paid to the general guardian of a minor, who shall be required to give security to the mi- nor, to be approved by the surrogate, for the faithful application and accounting for such legacy. Sec. 48. If there be no such guardian, or the surrogate do not direct such payment, the legacy shall be invested in permanent securities, under the direction of the surrogate, in the name and for the benefit of such minor, upon annual interest ; and the interest may be applied, under the direction of the surrogate, to the support and education of such minor. Sec. 49. It shall be the duty of the surrogate, where thereis no guar- dian of such minor, to keep in his office the securities so taken, and to collect, receive and apply the interest, and when necessary, to collect the principal, and re-invest the same, and also to re-invest any iaterest that may not be necessarily expended as aforesaid. Sec. 50. On such minor coming of age, he shall be entitled to receive the securites so taken, and the interest or other moneys that may have been received ; and the surrogate and his sureties shall be Hable to account for the same. Sec. 51. In case of the death of such minor before coming of age, the said securities and moneys shall go to his executors or administrators, to be applied and distributed according to law ; and the surrogate and his sureties shall, in like manner, be liable to account to such executor or administrator.(c?) The following sections of the statute provide for proceedings before the surrogate against executors and administrators for the recovery of both legacies and distributive shares. Sec. 82. Any person entitled to any legacy, or to a distributive share of the estate of a deceased person, at any time previous to the expira- tion of one year from the granting of letters testamentary or of admin- istration,, may apply to the surrogate either in person or by his guar- dian, after giving reasonable notice to the executor or administrator, to (5) 2E S. 90 1 4th ed. 276. (c) lb. 91;,4tlied. 27(i.- H) lb. PATMENT OF LEGACIES. 4Q5 be allowed to receive such portion of such legacy or share as may be necessary for his support.(e) Sec. 83. If it appear to the surrogate that there is at least one-third more of assets in the hands of such executor or administrator than will be sufficient to pay all debts, legacies and claims against the es- tate then known, he may, in his discretion, allow such portion of the legacy or distributive share to be advanced, as may be necessary for the support of the person entitled thereto, upon satisfactory bonds be- ing executed for the return of such portion, with interest, whenever re- quired. Sec. 18. The surrogate having jurisdiction, shall have power to de- cree the payment of debts, legacies and distributive shares against the executor or administrator of a deceased person in the following cases ; 1. Upon the application of a creditor, the payment of any debt, or a proportional part thereof, may be so decreed at any time after six months shall have elapsed from the granting of the letters testament- ary or of administration. 2. Upon the application of a legatee or relative, entitled to a distri- butive share, payment of such legacy or distributive share, or its just proportional part, may be so decreed at any time after one year shall have elapsed from the granting of such letters. (/) And by the provisions of the Revised Statutes, relative to the. ren- dering and settling of the accounts of executors and administrators, (g') any person interested; in the personal estate of the -deceased, either a^ creditor, legatee or Hext of kin, may call the executor or administrator to an account before the surrogate, or the executor or administrator ,may voluntarily render such account, and upon assets appearing, the surrogate will decree payment of the claim, either in full or in part, according to the sufficiency of the assets. By the above section, numbered 45, as has been seen, after the expi- ration of one year from the granting of the letters testamentary or of administration, the payment of the legacies may be enforced by the surrogate in the same manner as the return of an inventory ; and also by a suit on the bond of such executor or administrator whenever di- rected by the surrogate. The following sections of the statutes provide for the recovery of legacies and distributive shares, by actions at law against executors and administrators. See. 9. If, after the expiration of one year from the granting of letters testamentary or of administration there be more than suf&cieijt assets in the hands of any executor or administrator to discharge the debts of the testator or intestate, and if, after reasonable demand made, and the offer of a bond with sufficient- sureties, as in the next section prescribed by any legatee, or by any of the next of kin entitled to share in the distribution of the estate, such executor or administrator shall refuse to pay the legacy bequeathed by any will to such legatee, or the share of any such person entitled to distribution, he shall be liable to such {«) 2 R. S. 96 ; 4tli ed. 283. (/ 1 lb. 116; 4th ed. 300. (jSf), lb. 92; 4th ed. 2J7 et seq. 406 PAYMENT OF LEGACIES. action as the case may require, at the suit of such legatee or next of kin, or their personal representatives.(A) Sec. 10. Previous to the commencement of any such action, a bond to the executor or administrator shall be filed with the clerk of the court, with such sureties as the court, or any judge thereof, shall ap- prove, in double the sum of such share or legacy, conditioned that if any debts owing by the testator or intestate shall afterwards be recov- ered or duly made to appear, for the payment of which there shall be n'o assets other than the said share or legacy, that then such person shall refund the legacy or share that may be recovered in such action, or such ratable part or proportion thereof, with the other legatees or representatives of the deceased, as may be necessary for the payment of the said debts, and the costs and charges incurred by a recovery against such executor or administrator in any suit therefor. Sec. 11. When given by a legatee, the bond shall be further condi- tioned, that if no sufficient assets shall thereafter remain to pay any other legacy which may be due, that then such person shall refund such ratable part or proportion thereof, with the other legatees or repre sentatives of the deceased, as may be necessary for the payment of the~ proportional part of such other legacy. Sec. 12. A minor may bring such action by his guardian or next friend, as in other cases ; but not until such guardian or next fiiend shall have filed, with the clerk of the court, a bond to the minor, in such sum and with such sureties as the court shall approve, conditioned that such guardian or next friend shall duly account to such minor when of full age, or to his personal representatives, in case of his death, for all moneys which may be recovered in such suit. Sec. 13. In any such suit brought by a legatee, if it appear that there are not assets sufficient to pay all the legacies that may have bepn given, then an abatement shall be made in proportion to the legacies so given, and such legatee shall recover only a proportionate part.(«) Sec. 19. Whenever an action shall be brought by any legatee against an executor or administrator, and the wajit of assets to pay all the debts df the deceased, and all the legacies bequeathed by hmi, or any of them, shall be pleaded, the cause shall be referred to referees, to exam- ine the accounts of the defendants, and to hear and report upon the allegations and proofs of the parties in respect to such plea.(y) Sec. 20. Such referees shall proceed in the manner provided by law in respect to references of actions in which there is a long account; and all the provisions of law in relation to such references shall apply to referees appointed pursuant to the last section, and to their proceed- ings and the judgment thereon. Sec. 21. In such cases, the costs of the action, or of either party, shall be paid as the court may direct, out of the estate of the deceased, or by the defendants personally, if their refusal to pay such legacy or then* defence of the action shall appear to have been unreasonable. Sec. 22. If the plaintiff in such suit shall recover only part of his (A) lb. 114; 4th ed. 299. (i) 2 R. S. 115; 4th ed. 300. (j) lb. 450; 4th ed, 69a. PAYMENT OP LEGACIES. 407 demand, for tlie want of assets in the hands of the defendants, and assets shall afterwards come to their hands, he shall have a new action for the recovery thereof, or of the proportionate share thereof, to which he may be entitled ; and the same proceedings, in all respects, shall be had in such action. The above provisions, , sections 43, 45, 2 E. S. 90, prohibiting the payment of legacies until the expiration of a year from the time of the granting of the letters, and directing such payment after the expiration of that time, were made with reference to the provisions of the statutes respecting the revocation of the probate on allegations of the next of kin, filed within a year after the probate, (/c) and also to those regulating the publication by the executor or administrator, of a notice to cred- itors to exhibit their claims, by which a year must expire before the debts for which the assets are liable can be ascertained. After the year, the validity of the will being completely established, and the debts for Avhich the assets in the hands of the executor are liable hav- ing been paid or ascertained, the surplus remaining after the payment of such debts becomes properly distributable among the intended re- cipients of the testator's bounty ; and the executor cannot, in most in- stances, be permitted to retain that surplus in his hands. If there be litigations pending, or contingent liabilities of the testator, that may be a good reason for refusing to discharge the legacy in full, or even in part ; but there must be some such cause shown to justify the executor in withholding payment. From the statutes, and for the sake of gen- ■ eral convenience, the court presumes the personal estate to have been reduced into possession by the end of the year, and of consequence the claims of the legatees liquidated and entitled to be discharged. Formerly every person entitled to any legacy or bequest, or to any share in distribution, was required, at the time of payment or delivery thereof, to give bonds in double the sum of such share or legacy, with two sufficient sureties, to the executors or administrators, conditioned to refund if debts should afterwards appear ;(Z) which was for the bene- fit of creditors as well as for the protection of the executor or adminis- trator. But now, obviously, there is no necessity for such a bond, be- cause the creditors have an ample remedy against the assets in the hands of the executor or administrator, under the provisions of the statutes relative to the publication of notice to exhibit claims, and by the same provisions the executor or administrator is protected in pay- ments of legacies, or in distribution duly made after such publication. And the creditor who has not presented his claim under the notice, may still resort to the executor or administrator to the extent of the assets remaining in his hands undistributed at the time of the com- mencement of a suit for the claim ;(m) and Jie may follow the assets in the hands of legatees or next of kin, to whom they have been de- livered, paid or distributed.(w) Legacies, are, however, sometimes directed by the will to be paid before the year has elapsed, and therefore before the expiration of the (4) See 2 R. S. 61-62 ; Post, chap. 14. m See 1 R. L. 1 813, 314, sec. 18. (m) See orafe, p. 324-5. (m) See 2 R. S. 90, see. 42 ; lb. p. 451 d seq. 408 PAYMENT OP LEGACIES. time within which proceedings for the revocation of the probate are allowed 'to be taken, and before the executor can have duly completed the publicatidn of the notice for the exhibition of claims.- The above section, numbered 44, 2 E. S. 90, provides for such a case, and re^ quires the legatee to give a bond conditioned to refund if there should eventually prove a deficiency, or the probate should be revoked, or the will declared void. (For form of the bond, see Appendix, No. 60.) It will be observed that the section leaves the executor or admini*' ■ trator the sole judge of the sufficiency of the sureties. . He probably takes the bond at his peril in .this respect. Whether the mere taking of the bond will protect the executor or administrator in the payment, if there should be a deficiency, or the probate should be revoked, or the will should be declared void, and the sureties in the bond should prove inadequate, is perhaps questionable. It may also be a question how far the legatee and his sureties will be liable to refund, in the case of a deficiency caused by the misconduct of an executor or administra- tor. Their liability, it is safe to believe, will depend, to a certain ex- tent, upon the fidelity of the executor oi* administrator in managing the estate and conducting the administration. The statute also considers that there may be a hardship in compel- ling indigent legatees, in all cases, to await the expiration of the year, before receiving any benefit from the testator's bounty. The above sections, numbered 82 and 83, 2 E. S. 98, accordingly provide for the pay-ment, upon giving satisfactory bonds, and under the directions of the surrogate, of portions of legacies, before the expiration of the year, to legatees who may need the same for their support. The provisions of those sections, it will be observed, extend and ap- ply to distributive shares, in cases of intestacy, as well as to legacies; the reason for the payment being the same, and the payment being equally practicable in both instances. The application of the legatee, widow, or next of kin, under these sections, should set forth distinctly his or her .claim against the execu- tor or administrator, and such facts respecting the situation of the estate, within the knowledge of the applicant, as will show that there is at least one-third more of assets in the hands of thei executor or adminis^ trator than will be suf&cient to pay or discharge all debts, legacies and claims against the estate then known ; it should state that a portion of the legacy or distributive share is necessary for the support of the party, specifying the sum required, and should mention the names and resi- dences of the sureties to be joined in the bond. The prayer should be, that, on giving the bond, the surrogate allow the sum required to be advanced by the executor of administrator. The application should be under oath. A copy should be served on the executor or adminis- trator, with a notice that, on a certain day, which should be not less than four days after the service, the application will be presented to the surrogate, and that he wUl then be moved to grant the prayer thereof On the appointed day, if the executor or administrator fail t6 appear, the applicant, on filing an ^.f&davit of the service of the copy of the application and of the notice, will be heard exparU; and if the application has been sworn to, and show the party entitled to an ad- vance, and the proposed sureties be satisfactory, the surrogate will ABATEMENT OF LEGACIES. 409 probably, -without further proof, order the advance to be made. The executor or administrator may appear and contest the truth of the state- ments in the application, or the suf&ciency of the sureties. Witnesses may be examined, as in other cases, and the surrogate will thereupon S^etermine whether, or upon what terms, the application shall be granted. An order should be made and entered in the surrogate's minutes, in. conformity to his decision, allowing the advance, which should recite a summary of the proceedings, and state the sum allowed to be ad- vanced in dollars and cents. The costs and expenses will, in most in- stances, have to come out of the legacy, as neither the estate nor the executor or administrator can properly be held chargeable for them on such a proceeding : the payment of the same should be provided for by the order. (For forms of the application, notice, bond and order, see Appendix, No. 61.) An order for an advance thus made by the surrogate will doubtless^ protect the executor or administrator, if afterwards there should prove a deficiency, or the probate should be revoked, or the will declared void ; and no satisfactory remedy could be had on the bond, provided, perhaps, that the executor or administrator has faithfully and honestly conducted the administration. Of the Abatement of Legacies. The above section, numbered 45; 2 R. S. 90, provides, that after the expiration of the year, the executor shall discharge the specific legacies bequeathed by the will, and pay the general legacies, if there be assets ;, and if there be not sufficient assets, then that an abatement of the gen- eral legacies shall be made in equal proportions. ".As to the abatement of general legacies. In case the assets be suf- ficient to answer the debts and specific legacies, but not the general legacies, the latter are subject to abatement. This abatement must take place among all the general legatees, in equal proportions.(o) "Generally speaking, nothing shall, in such cases, be abated from the specific legacies. But if the testator bequeaths specific legacies, and also general pecuniary legacies,- and directs by his will that suck pecuniary legacies shall come out of all his personal estate, or words tantamount, then, if there be no other personal estate than the specific legacies, they must be intended to be subject to those which are pecu- niary ; otherwise the words of the bequest to the pecuniary legatees;- would be nugatory.(p) " It must here be observed, that a residuary legatee has no right to call upon particular general legatees to abate. The whole personal es- tate, not specifically bequeathed, must be exhausted before those legatees can be obliged to contribute anything out of their bequest. " The general rule is, that among legacies, in their nature general, there is no preference of payment ; they shall all abate together, and (o) Treat. Eq., book 4, part 1, oh. 2, sec. 5. -With regard to general legacies of stock,, the ■ abatement will be regulated by the value of stock at the end of one year next after the testa- tor's death. SlacksJiaw v. Sogers, cited per cwriam, in Simmons v. Wallace, 4 Bro. C. . i349 ; Anther v. Ant?ier, 13 Sim. 440, per Shad well, T. 0. (p) Wms. on Bxrs. 1.165, and cases cited. 410 ABATEMENT OF LEGACIES. proportionally, in case of a deficiency of assets to satisfy them all. But this must be understood only as among legateeSj who are all toI- unteers ; for if there be any valuable consideration for the testamentary gift, as where a general legacy is given in consideration of a debt owing to the legatee,(g) or of the relinquishment of any right or interest as of her dower by a widow, (r) such legacy will be entitled to a preference of payment over the other general legacies, which are mere bounties- and it should seem that the preference will be allowed, though the be- quest should exceed the value of the right or interest relinquished by the legatee. But it is requisite that, the right or interest should be subsisting at the testator's death. Under the provisions of the Eevised Statutes, (rr) giving to a post tes- tamentary child the same portion of the real and personal estate of the father as would have descended or have been distributed to such child if the father had died intestate, all the devisees and legatees must con- tribute ratably, in proportion to the value of the real or personal es- tate devised or bequeathed to them respectively, to make up the dis- tributive share of such post testamentary child. And in making such contribution, no distinction is to be made between specific, general and residuary legatees ; but each legacy is to abate ratably, in proportion to its amount or value. Even a legacy given to the widow of the tes- tator, in lieu of dower, must b^ taken into account in estimating the amount which the other legatees are bound to contribute, to make up the share of a post testamentary child in the estate of the father. But as between the widow and such child, the latter cannot take, a child's portion of the real estate discharged of the widow's riglft of dower, and also a ratable proportion of a legacy given by the testator to the widow in lieu of such dower.(s) " It must here be observed, that a legacy, which is in its nature gen- eral, and given to a volunteer, will not be entitled to any exemption,. from abatement, on the ground of its being applied to any particular object or purpose. Thus, legacies of a certain sum each, to executors for their care and trouble, or of sums of money for mourning rings, or to servants, or to charities, are not to be preferred to other general lega- cies, (ss) Again : general legacies, although given for specific purposes, as for education or maintenance, must, as between themselves, all abate rata- bly in case of deficiency, , unless there is something in the will of the testator indicating his intention that one should be paid in preference to another. But a legacy of piety, for the erection of head stones at the graves tif the testator's parents, or other near relatives, does not abate ratably, and should be paid in full,(^) A direction to the executors to erect a monument at the testators own grave, is not a legacy, but, as was stated in a previous chapter of (?) See Woodv. Vandenhv/rgh, 6 Paige, 2'7'7. (r) Isenhart v. Brown, 1 Edw. Ch, Rep 411; WiUmmsm v. WiUiamson, 6 Paige, 298. (rr) 2 R. S. 65 ; 4th ed. 247. (s) MiicheU v. Blain, 5 Paige, 588. (ss) Wms. 1169, 111\, and oases cited. (f) Wood V. Yandentm/rgh, 6 Paige, 278. EXECtlTOE'S ASSENT TO A lEGACT. 411 this work, is to be considered as a part of the decedent's funeral ex- penses, where the rights of creditors are not affected.(«) It is necessary here to refer to the class of legacies alluded to at a pre- vious page, as being in the nature of specific legacies, and sometimes called demonstrative legacies, viz., bequests of money, with reference to a particular fund for their payment, and not simply a gift of the spe- cific fund itself Those legatees have such a lien upon the specific fund referred to, that they will not be obliged to abate with general legatees. And in this, as in the preceding cases, the testator's intention is the principle ; for it is inferred that he, in referring to specific parts of his estate for payment of particular legacies, intended those legacies a pref- erence to others which he had not so secured. (m) It has appeared that as long as any of the assets, not specifically be- queathed, remain, such as are specifically bequeathed are not to be ap- plied in payment of debts, although to the complete disappointment of the general legacies. But when the assets, not specifically bequeathed, are insufficient to pay all the debts, then the specific legatees must abate, in proportion to the value of their individual legacies. So, a legatee entitled to a legacy of the sort just mentioned, in th'e nature of a specific legacy, must abate with the specific legatees.^?;) Of the Executor's Assent to a Legacy. If an executor pays one legatee, and there is afterwards a deficiency of assets to pay the others, the legatee so paid must refund a propor- tionable part. But, if the deficiency of assets has been occasioned by the waste of the executor, the legatee who has been paid may retain the advantage he has gained by his legal diligence, as against his co-lega- tees, but not against a creditor.(Mj) The assent of the executor to the legacy, it is said, is necessary to the due vesting of the same in the legatee. The whole personal property of the testator, as it has appeared in a former part of this work, devolves upon his executor.(a;) It is his duty to apply it, in the first place, to the payment of the debts of the deceased; and he is responsible to the creditors in the manner prescribed by the statutes ; and before treated of,{y) for the satisfaction of their demands, to the extent of the whole estate, without regard to the testator's having, by the wiU, directed that a portion of it shall be applied to other purposes. Hence, as a protec- tion to the executor, the law imposes the necessity that every legatee, whether general or specific, and whether of chattels real or personal, must obtain the executor's assent to the legacy before his title as legatee can be complete and perfect. Hence, also, the legatee has no authority to take possession of his leg- acy without such assent, although the testator, by his will, expressly (it) Wood T. Vandeniurgh, 6 Paige, 218. (u) "Wms. 980, 1174. (v) "Wms. 1174. (w) Lupton V. Lu/pion, 2 Johns. Eep. 614. (a;) Ante, p. 236. (y) Ante, p, 284 et seq. 412 EXBCTJTOE'S ASSENT TO A; LEGACY. direct that lie shall do so : for if this were permitted, a testator might appoint all his effects to be thus taken, in fraud of his creditors. Be- fore such assent, however, the legatee has an inchoate right to the leg- acy, such as is transmissible to his own personal representatives, in case of his death before it be paid or delivered. If the testator, by his will, forgive a debt due him, the debt is not discharged without the executor's assent, because such debt is a part of| the assets, and it may become necessary to collect the same in order to pay the debts of the estate. As soon as the executor assents, and not before, the debt shall be effectually discharged.(z) It follows, from the rule respecting the necessity of the executor's, assent, that if, without it, the legatee takes possession of the thing be- queathed, the executor may maintain an action, of trespass or trover against him ; so, although a chattel, real or personal, specifically be- queathed, be in the custody or possession of the legatee, and the assets, be f ally adequate to the payment of the debts, he has no right to retain it in opposition to the executor, by whom, in such case, an action will lie to recover it. " If an executor refuse his assent without cause, he may be compeDei to give it by a court of equity. With respect to what shall constitute^ such assent on the part of the executor, the law has for this purpose , prescribed no specific form, and it may be either express or implied. The executor may not only in direct terms authorize the legatee to take possession of his legacy, but his concurrence may be inferred either from indirect expressions or particular acts; and such' constructive per- mission shall be equally available. Thus, for instance, if a horse is be- queathed, and the executor requests the legatee to dispose of it, or if a, third person proposes to purchase the horse of the executor, and he di- rects him to buy it of the legatee, or if the executor himself purchases the horse of the legatee, or merely offers him money for it, this amounts to an assent by implication to the legacy. " Again, when the executor informs a legatee that he intends him to have the legacy according to the devise, or that the legacy is ready for him whenever he will call for it, such declarations clearly amount to a good assent to the bequest."(a) In a oase(&) where the executor had assented to the widow's retain- ing possession of certain household furniture bequeathed to her by the will, and afterwards brought an action of trover against her to recover the property, and was non-suited, the court refused to allow him his costs in the suit on a settlement of his accountSj and the Vice-Chancel- lor said, that "although, in strictness of law, the executor had a right to the possession of all the personal property left by the testator, and the widow could not take what was specifically bequeathed to her with- out his assent, inasmuch as it might be necessary for the payment of debts, yet if he were satisfied that no such necessity existed, it was com- petent for him to assent to her retaining the possession ; and having once assented, he should not afterwards have brought the action against {z) Wms. 11 76. (a) "Wms. 1178-9, and oaeea cited. (6) Isenhart v. Brown, 2 Edw. 341. AT WHAT TIME LEGACIES ARE TO BE PAID, ETC. 413 her. The defence -whicli she had set up, was, that one or both of the executors had assented ; and after some proof was gone into on her part upon the trial, in order to make out the facts, the executors sub- mitted to a non-suit. I think it is apparent that there was no necessity for requiring her to give up the articles of personal property which had been left to her by the will. The attempt can hardly be justified. It was certainly not for her benefit or the advantage of the legatees gen- erally, and he must bear the expense himself." "On the other hand, since the assent to a legacy" by an executor, may, in its consequences, be of great prejudice to him, it is but reason- able that the act or expressions deemed sufficient to impart that assent should be unambiguous. " In certain cases the assent of the executor may be presumed, upon the principle, that, in the absence of evidence, the executors shall be taken to have acted in conformity with their duty ; as when executors die after the debts are paid, but before the legacies are satisfied. So, af it should seem, the assent of an executor may be con- cluded from the legatee's possessing himself of the subject bequeathed, and retaining it for some considerable time withcfut complaint by the executor. '' " The assent of the executor may also be upon a condition precedent, as if he should tell the legatee that he will pay the legacy, provided the assets are sufficient to answer all demands. " The assent of an executor shall have relation to the time of the testator's death. Hence, in the case of a devise of a term of years in a house or land, if, after the testator's death, and before the executor's assent, rent from the under-tenant becomes payable, the assent by relation shall perfect the legatee's title to this interest. So, such as- sent shall, by relation, confirm an intermediate grant by the legatee of his legacy."(c) The rules thus laid down, with respect to the assent of the executor to a legacy, had their origin and full effect under the system of admin- istration which existed previous to the Revised Statutes. It may be doubted whether the doctrine has strictly any application under the present system. The phrase, " Executors assent to the legacy," how- ever, continues to be used in the cases, and it has been deemed proper to state briefly the general principles of the law upon the subject. At what Time Legaeies are to he paid ; and herewith of Bequests for Life, with Remainder over. "Within a year from the time of his appointment, the executor 'will ■ have a sufiicient reason for refusing his assent to a legacy, that his pro- bate is liable to be levoked, and that he has not been able fully to inform himself of the state of the property, and to ascertain the debts against the testator. After that period has expired, as has been seen, he may be called upon to assent to- and pay the legacies. The allowance of the year,, however, is merely for convenience, and so that the executor may not be disturbed in discharging the legacies (c) Wms. 11T9, 1180-1, and oases cited.- 414 AT -WHAT TIME LEGACIES ABE TO BE PAID, ETC. by attacks on his probate or by the claims of creditors. Therefore if he entertain no apprehensions as to the validity of the probate, and the state of the testator's circumstances be such as to enable him to dis- charge legacies at an earlier^ period, he has authority to do so. The statutory provisions for the payment of legacies before' the expiration of the year have been already considei'ed. It is proper to remark that the executor can seldom feel himself called upon to discharge a legacy before tliat period has elapsed, except in accordance with the require- ments of one or the other of those provisions. If an annuity be given by will, it shall commence immediately from the testator's death, and consequently the first payment shall be made at the expiration of a year next after that event. Where an annuity is expressly directed to commence within the year, as at the first quarter day after the testator's death, or where an annuity is given with a di- rection that it shall be paid monthly, the money, will be dne at the first quarter day in the former case, and at the end of the first month after the testator's death, in the latter, although not payable by the executor till the end of the year.(cZ) In a case where* a testator directed his executors and trustees to permit his wife }o take the interest or dividends on three thousand pounds sterling British government three per cent, stock during her natural life, the question being from what time the widow was entitled to the dividends on the stock, the Vice-Chancellor said, "I infer, from the manner in which this is mentioned in the will, that the testator possessed the particulaj" stock at the time of his death. He does not direct the trustees to make an investment for that purpose, as in other instances where he is desirous of creating an income for annuities; but the bequest is specifically of the interest or dividends upon three thousand pounds sterling British government three per cent, stock, which the trustees are to permit the widow to take during her natural life. I am of opinion, as the will takes effect from the death of the ■ testator, the widow is, from that time entitled to the dividends, that is to say, the dividends which may accrue or be declared, or become payable at any time after the death of the testator."(e) But in the same case, where the testator directed the executors and trustees of his will to invest in stock of the United • States, or of the state of New York, or such other bank stock as his wife should 3,f- prove of, a sum. of money as should produce the annual income, divi- dends or interest of one tliousand dollars, lawful money of the United States of America ; and from time to time, as the same should become payable, to permit his said wife to take such interest moneys, in the whole amounting to the said annual interest of one thousand dollars as aforesaid : It was held, inasmuch as the annuity was to arise, not from an investment already made, but one to be.made in stock of the United States, or of this state, or of some bank ; and as the testator had not appointed the time within which the investment should be made, that the ejtecutors might take one year for the purpose, in an- (d) ■Wms.'.H92-3, qind cases cited. (e, Oogswell v. Cogswell, 2 Edw. Ch. Rep. 236. AT WHAT TIME LEGACIES ARE TO BE PAID, ETC. 415 alo^ to tlie time allowed by law for paying legacies.(/) The gross sum to be set apart to produce the yearly income of one thousand dollars, was considered in the light of a legacy payable by law at the end of the yea,T;(g) and consequently it was determined that the widow could'only demand the income to accrue from it as commencing at that time, and that she would be entitled to receive such interest or income quarterly, half yearly or annually thereafter, as dividends were declared.(/i) A distinction has been taken between an annuity and a legacy for life. " If an annuity is given, the first payment is paid at the. end of the year from the death ; but if a legacy is given for life, with re- mainder over," it is laid down, " no interest is due till the end of two years. It is only interest of the legacy ; and tiU the legacy is payable there is no fund to produce interest."(i) However, a different doctrine prevails with respect to a bequest of the residue of personal estate for life, with remainder over. For it seems now to be established, that the person taking the- residue for life is entitled to the proceeds from the death of the testator. Thus, in Williamson v. Williamson,{j) the testator bequeathed to his wife the use of the residue and remainder of his personal estate, amount- ing to something more than $30,000, during her life or widowhood, with remainder to his three sons, &c., and a question was, whether she was entitled to the interest upon the fund during the first year after the testator's death. Chancellor Walworth, after reviewing the Eng- lish decisions on the point, says : " The result of the English cases appears to be, and I have not beejt able to find any in this country establishing a different principle, that in the bequest of a life estate in a residuary fund, and where no time is prescribed in the will for the commencement of the interest or the en- joyment of the use or income of such residue, the legatee for life is en- titled to the interest or income of the clear residue, as afterwards ascer- tained, to be computed from the time of the death of the testator. All the cases which appear to conflict with this rule, except the two de- cided by Sir John Leach,(/c) which are no longer to be considered as authority, will be found to be cases in which the testator had directed one species of property to be converted into another, or the residuary fund to be invested in a particular manner, and had then given a life estate in the fund as thus converted or invested. In such cases it ap- pears to be consistent with the will of the testator to consider the life interest as commencing when the conversion takes place, or the invest- ment is made, either within the year or at the expiration of that time. But, as a year is considered a reasonable time for the executor to com- (/) 2 R. S. 90, seo. 43 ; Ante, p. 403. ig) 1 Rop. on jjeg. 583. \h) 2 Edw. Ch. Rep. 237. (i) Gibson y. Bott, 1 Ves. 9&; Wms. 1103^ U) 6 Paige, 298. (ft) SMt V. Hollingworth, 3 Mad. Rep. 161 ; Amphlett v. Parke, 1 Sim. Eep. 280, in which Sir John Leach seems to have held, that the residue was composed of the capital and of the interest during the first year from the death of the testator ; which capital and interest con- stituted a fund upon which the legatee for life was to have the mterest from the end of the year. 416 AT WHAT TIME LEGACIES ARE TO BE PAID, ETC. ply witli the testator's directions as to the conversion or investment the legatee for life cannot be kept out of the interest or income beyond that period. In the case under consideration, there is no direction for a conversion of the fund, or for the investment thereof in any particular manner, before the right of the widow to the use thereof for life was to commence. And as it appears that a great portion of the personal es- tate was in bonds and mortgages, and other securities which were draw- ing interest at the death of the testator, there is no good reason for de- priving her of the use of the residuary estate for an entire year." At common law, if a man had granted by deed a term of years to A. for life, remainder over to B., A. had the whole term in him : and therefore no remainder could be limited after it. But, when long and beneficial terms came in use, the convenience of families required that they might be settled upon a child after the death of the parent. Such limitations were soon allowed to be created hy will; and the old objec- tions were removed, by changing the name from remainders to execu- tory bequests : and it makes no difference whpther the term, or the lease, or the/«^m, or the iise and occupation, or ihe profits of the lands, or the lands themselves are bequeathed. The same reason required that such limitations might be created by deed ; as, for instance, marriage settle- ments, to answer the agreement of the parties, and the exigencies .of families. So, a bequest of household goods, after a prior gift for life, jand without limiting the use merely to the first legatee, is valid. It may here be observed that a gift |br life of things, quca ipso usu consurnuntur, as corn or wine, if specific, is a gift of the property, and 4he old rale will prevail : but if residuary, the things must be sold, and the interest of the produce paid to the legatee for life. With respect to cases where the testator simply bequeaths all the residue of his personal estate for life with remainder over, without any direction to invest it in any particular manner, it must be observed that, as between the tenant for life and the remainder-man, where thg residue consists in part, or wholly, of property in ,its nature perishable, and daily wearing out, such as leaseholds, (not specifically given,) the ■tenant for life will not be entitled to the annual produce, which the property so wearing out is actually making, but to interest on the esti- mated value from the death.(i) In Covenhoven v. Shuler,{m) it is laid down, that where there is a general bequest of a residue for life with a remainder over, although it includes articles of both descriptions, perishable and not perishable, as well as other property, the whole must be sold and converted into money by the executor, and the proceeds must be invested in perma- nent securities, and the interest or income only is to bepaid to the le- gatee for life. That case, and the authorities there referred to, settle the principle that where there is a general bequest of a residue of the testator's personal estate for life, with a remainder over after the death of the first taker, the whole residuary fund is to be invested for the benefit of the remainder-man ; and the tenant for life is only entitled to the interest or income of that fund. And to ascertain the amount of I 'l) "Wma. 1196, and oaseaoited. V) 2 Paige, 132. AT WHAT TIME LEGACIES ARE TO BE PAID, ETC. 417 such residuary fand, so as to apportion the capital and the income properly between the remainder-man and the tenant for life, the exe- cutor, upon settliag the estate at the end of the year, must estimate the •whole estate at what is then ascertained to have been its cash value at the testator's death, after paying all debts, legacies and expenses of administration, and other proper charges and commissions. But, in making such deductions for legacies payable at a future day, and which do not draw interest, the whole amount of the legacies is not to be de- ducted, but only sach a sum, as, if properly invested, would, at the time when the legacies become payable, have produced the requisite sum, exclusive of all expenses and risk of loss. The rule in England, as between the legatee for life and the remainder-man, is to invest, or consider the fund as iavested in the three per cents ; being two per cent, less than the legal rate of interest in that counlry.(?i) Upon the same principle, according to the legal rate of interest here, the income of five per cent, stock, which stocks can generally be purchased at about the par value, may be considered as a reasonable discount upon a legacy payable at the end of the year, for the purpose of ascertaining the value of the residuary estate at the death of the testator.(o) Upon this principle it was stated in Clark v. Glark,{p) that the be- quest of the use of a residue for life or any shorter period, does not give the legatee the right to the possession of the fund in the meantime ; and that the executor should.either retain the fund and pay over the income thereof to the legatee- as it accrues, or he should take ample security for the return of the principal at the termination of the particu- lar estate therein, if he suffers it to go into the hands of the legatee to enable her to enjoy the use or income thereof (g) It may be stated as a general rule, that where there is a bequest of the whole of the testator's personal estate, or of the residue thereof after payment of debts and legacies, to one person for life, with a re- mainder over to others after the termination of such life estate therein, the whole must be converted into money, and invested in permanent securities by the executor, and the income paid over to the person en- titled to the life estate.(?-) The rule is the same where the residuary bequest for life, or for a limited term, embraces articles not necessarily cotisumjd in th3 using; such as furniture, books, plate, &o., as well as property which must be so consumed; unless the will contains in- dication of an intention on the part of the testator, that the legatee for life should enjoy the property or some particular parts thereof in its then state, as a specific bequest for life.(s) Where, however, the bequest to the tenant for life' is specific, the legatee in remainder is not entitled to have the property converted, notwithstanding, .by reason Qf its being a decreasing fund ; the legacies over may altogether fail. (n) Rowe v. Earl of Dartmouth, t Ves. 137. (o) WiUUtmson v. Williamson, 6 Paige, 306. (p) 8 Paige, 160. (q) See, also, Oairns v. Ghaberi, 9 Paige, 160. (r) "Ebw V. Barl of PorlsmmMi, 1 Tea. 137; F.'.arnsv. Young, 9 Id. 549." (») MiUs V. MiUs, 7 Sim. Rep. 501; EandaU v. RandaU, 3 Mer. Rep. 193; GoUins^. CoUins, 2 Myl. & Keea, 703 ; Alcock v. Sloper, Id. 699 ; Bdhme v. Kenedy, 1 MyL k Craig, ,114 ■ Pickering v, Pickering, 4 Id. 289 ; Sjiear v. Tinkham, 3 Barb. Ch. Eep. 211 ' ' 27 418 AT ■WHAT TIME LEGACIES AEB TO BE PAID, ETC. Where specific articles not necessarily consumed in using, are be- queathed to a legatee for life, with a limitation over and ■without .any direction to the executor to hold them in trust for the remainder-man the executor is authorized to deliver the same to the person entitled to a life estate therein ; taking from such person an inventory and receipt stating that such articles only belong to the first taker for life, and that afterwards they are to be delivered to the legatee who is entitled to them in remainder.(<) The old practice of the Court of Chancery was to reqiaire the tenant for life to give security for the protection of the remainder-man ; but such security is not now required, except a case of danger is shown."(M) In De Peyster v. Clendemng,{v) the widow was entitled to the use of certain personal property appertaining to a farm, at the death of her husband, the testator, as a specific bequest to her for life,, or so long as she should continue to reside there ; and the Chancellor said, that " she must, in conformity to the practice on that subject, give to the admin- istrator an inventory of the articles, specifying that they are in her custody as given to her while she resides on the farm only, and that when she dies or ceases to reside there, these articles, or those which may be substituted in the place of them, in the ordinary use of the farm, are to be delivered to the administrator, or to the trustees who may be appointed to carry into effect the provisions of the will." If a legacy be given to A. to be paid at twenty -one, and the inter- mediate interest is not given, and A. dies before that period, his repre- sentative must wait for the money until A., if living, would have at- tained twenty-one.(w) But where interest is given during the minori- ty, and the legatee dies under age, his executors or administrators wiU be entitled immediately on his death.(a;) Again, in case a legacy be left to A. at twenty-one, and if he die be- fore that period,, then to B., and A. dies before he attains his age, B. shall be entitled immediately, for he does not claim under A., but the devise is a distinct substantive bequest, to take effect on the contin- gency of A.'s dying during his mmontj.{y) It should be remarked, that where a testator gives a legatee an ab- solute vested interest in a defined fund, so that, according to the ordi- nary rule, he would be entitled to receive it on attaining twenty-one, («) LeaJse v. Sennetj 1 ■West's Ch. Eep. 284 ; Beli v. Einaston, 2 Atk. 8-2 ; Foley v. Bwmli, 1 Bro. 0. C. 279 ; Spear v. Tinkham, 2 Barb. Ch. Rep. 211. . (u) "Wms. 1198, and'oases cited; Goven?U)ven r. Shvkr, 2 Paige, 123. (v) 8 Paige, 295. (w) Anon., 2 Vcrn.199; OJiester -v. Painter, 2 P. ■Wms. 336; Sodeny. SmiOi, Ambl 588; Crickelt v. DdOnj, 3 Ves. 13. {x) Oldberry v. Sampm, 2 Preem. 25 ; Crickeit v. Dolhy, 3 Ves. 13. But if a legacy be payable out of land at a future day, although given with interest in the meantime, if tlie legatee die before the day of payment, the court will not direct the legacy to be raised until the time for payment arrives ; Gawler v. Standewick, 2 Cox, 1 5 . {y) Papworth v. Moore, 2 Vern. 283 ; Saundy v. WiUiams, 2 P. Wms. 418. But where legacies were given to A., B. and C, the three co-heiresses of the testator, to be paid at their respective marriages, and if either of them should die. her legacy to go to the survivore ; and one of them died unmarried ; it was held that the survivors should not receive the legacy of the deceased before their respective marriages, for the condition, though not repeated, was annexed to the whole, whether it accrued by survivorship or by the original devise ; Moon V. Godfrey, 2 Vern. 620, See, aio, as to a legacy charged on land; Feliham v. FellMam, 2 P. -Wms. 2n. COMPELLING THE PAYMENT OF LEGACIES, ETC. 419 but by the terms of tlie will payment is postponed to a subsequent period, e. g., till the legatee attains tbe age of twenty -five, the court will nevertheless order payment on his attaining twenty-one ; for at that age he has the power of charging or selling or assigning it, and the court will not subject him to the disadvantage of raising money by these means, when the thing is absolutely his own. (a) So, notwith- standing a legacy is directed to accumulate for a certain period, e. g., until the legatee attains the age of thirty, yet, if he has an absolute in- defeasible interest in the legacy, he may require payment the moment he is competent, by reason of having attained twenty -one, to give a valid discharge.(a) Of Compelling the Payment of Legacies or Distributive Shares by Proceed- ings in the Surrogate's Court. The time for the discharge or payment of the specific and general legacies is fixed by the above section of the statute, numbered 45, 2 E. S. 90, at one year after the granting of the letters testamentary or of administration', and such discharge or payment, it will be observed, is expressly made the duty of the executor or administrator, after the ex- piration of that period. The practice in the Surrogate's Court, on compelling payment of a legacy after the year has elapsed, may properly be considered in this place. The same 45th section above referred to, further provides, that payment of the legacy may be enforced by the surrogate, after the ex- piration of the year, in the same manner as the return of an inventory, and also by a suit on the bond of the executor or administrator, when- ever directed by the surrogate. The proceedings on compelling the return of an inventory were treated of at some length, in their proper order, in a previous portion of this work.(6) The practitioner is referred to those pages, for what- ever instructions may be required, to enable him, if practicable at all, to compel the payment of a legacy under the present section. It is proper to mention, that within the last four years, (c) the provision in question has not been resorted to by suitors, in the court Of the surro- gate of New York, for compelling the payment of legacies. This clause of the section also provides for enforcing the payment of the legacy, by a suit on the bond of the executor or administrator, whenever directed by the surrogate. The language here is not per- fectly explicit, nor is the provision entirely free ivora dificulty. In what case or under what circumstances the directions of the surrogate are to be given, is not stated. The preceding portion of the sentence authorizes the enforcement of payment of the legacy, in the same man- ner as the return of an inventory ; and an ultimate remedy, on com- pelling the return of an inventory, is, as has been seen, (c?) a suit oh the (z) Cwtis V. Suldn, 5 Beav. liT, 155, 156 ; Roche v. Eocke, 9 Beav. 66. (o) Josselyn v. Josselyn, 9 Sim. 63 ; Saunders t. Vauti^, 4 Beav.. 116 ; 1 Or. & Ph. 240 1 reel v. Greet, 5 Bear. 123. (6) See ante, chap. 7, p. 255, ei seq.. (c) Previous to Feb. 1844.. (d) Ante, p. 255-6. 420 COMPELLING THE PATMENT OF LEGACIES, ETC, executor's or administTator's bond. The provisions for the prosecution of the bonds of executors and administrators, for neglecting to return an inventory, were, at the time the present section -was enacted, the only ones allowing or regulating such suits. it is probable, therefore, that the provision in question was intended to authorize a suit on the bond of the executor or administrator, on Ms refusing payment of a legacy, in a similar case to that in which such suit was authorized for not returning an inventory. In this view the provision may appear superfluous, as the antecedent portion of the clause would seem, by a necessary construction, to furnish the same remedy ; but it is hardly possible to give to the sentence any other in- terpretation. The practice on prosecuting the bond, after disobedience to the surrogate's summons, was heretofore considered, when treating of the subject of the inventory, (e) and the directions there given wiU, it is believed, apply to the present case. The 19th section, 2 E. S. 116, amended act of 1830, chap. 320, sec. 23, heretofore referred to, in connection with the subject -of the payment of the debts,(/) authorizes the surrogate to cause the bond of the exe- cutor or administrator to be prosecuted, in case of his refusal or omis- sion to perform a decree for the payment of a legacy ; but that provi- sion, it is supposed, applies not to the present section, but to the 18th section, 2 E. S. 116, also before considered, when treating of the pay- ment of the debts,(g') and presently again -to be adverted to,(/i) express- ly empowering the surrogate to decree payment of a legacy, after the expiration of a year from the granting of the letters, and to the provi- sions for a decree for payment, on the final settlement of an executor's or administrator's account. The 19th section thus referred to will be considered hereafter, as has already been intimated, under the head of the rendering and settling of the accounts of executors and administra- tors.(i) It is believed that its provisions cannot be made available in aid of the section now under consideration. Upon the whole, it must be concluded that any recourse to this last clause of the 45th section, in practice, will prove very unsatisfactory ; and as there are other sec- tions affording eveij effective remedy which this clause can possibly furnish, that its provisions may be entirely disregarded. The above section, numbered 18, 2 E. S. 116, provides that the sur- rogate shall have power to decree the payment of a legacy or distribu- tive share, upon the application of a legatee or relative entitled to share in the distribution, at any time after one year shall have elapsed from the granting of the letters testamentary or of administration. This section, it will be perceived, extends to administrators in cases of intes- tacy, as well as to executors and administrators with the will annexed. There is the same reason in both eases. The debts having been paid or ascertained at the expiration of the year, as the executor is thereby enabled to proceed to the discharge or payment of the specific and general legacies, so it is competent for the administrator, where there (e) Ariie, p. 261. (/) Ante, p. 34V. (g) Ante, pp. 325, 342. (ft) Infra, p. 421. (j) Seej3orf, chap. 12. COMPELLING THE PAYMENT OF LEGACIES, ETC. 421 is no will, at the same period to make the proper apportionment of the surplus remaining after the payment of the debts among the persons entitled in distribution. This section has been treated of in some detail at a previous page of this work, in connection with the subject of the payment of the debts.(/(!) The observations there made with respect to its provisions and the practice under it, on obtaining a decree for the payment of a debt there prescribed, apply in every particular to the proceedings now to be dis- cussed. The reader is therefore referred to the remarks there presented, for the requisite directions for. procuring a decree in the case under consideration. The general form of the creditor's application for a decree under the section, is to be followed in the application of a legatee or relative enti- tled in distribution. (4^) The petition of a legatee should set forth the will of the deceased, or such clause or clauses thereof as contain the be- quests or provisions under which he claims. It should aver that he has requested payment of the executor, and that the executor has re- fused the same. It should also allege, if the fact be within the know- ledge or information of the petitioner, that assets sufficient for the payment of all the debts against the testator, and for the discharge of the legacies, have come into the hands of the executor, and should re- quire that he render an account of his proceedings in the performance of the duties of his trust, or that he admit a sufficiency of assets ; and such special circumstances, within the petitioner's knowledge or infor- mation, relative to the situation of the estate or the conduct of the ex- ecutor m the administration, may be included and charged in the petition as the petitioner may deem calculated to sustain or promote his claim. The petition of a person entitled in distribution will, of course, de- clare the character in which his or her claim is made ; and, if as next of kin, the degree of relationship which existed between the petitioner and the intestate. And similar averments and charges to those above prescribed for the petition of a legatee, should also be included. In other respects, as well as in some of those here spoken of, the contents of the petition of a legatee or distributee, for a decree for payment un- der the section in question, will be the same as those of a creditor in the case before treated of There will be the same necessity that the executor or admininistrator bring in an account on the return of the citation, to show cause or apply for time to do so, as was shown in the former proceedings for obtaining a decree for the payment of a debt. In a case where the legatee filed a bill in Chancery for enforcing the payment of a legacy, and called upon the executors to render an account of the property left by the testatrix, or to admit sufiicient assets for the payment of the legacy, and the executors neither rendered an account nor stated in their answer that there was any deficiency of assets, the court pre- sumed that there was sufficient assets for the purposes of the suit, and affirmed a decree for the payment of the legacy, considering that it (*) Auh, pp. 325, 342. (fcji Where a legacy is given to a feme covert for her separate use, the proceedings before the surrogate against the executor, to compel the payment of the legacy, should be instituted in the name of the/eme covert only, by her next Wend, Guild v. Peck, 11 Paige, 475. 422 COMPELLING THE PAYMENT OP LEGACIES, ETC. would be a useless expense to direct an account to be taken of the es- estate of the testatrix which had come into the hands of the executors.(A Witnesses may be examined on either side, touching any question arising between the parties, .the same as in the case of a creditor's ap- plication for a decree for payment. The proceedings on contesting the account, if one be rendered, will be governed by the rules before indi- cated with- reference to an account rendered on the return of a citation to show cause, issued at the instance of a creditor, and the decree will follow the same general form, and costs will b^ adjudged as in that case. The mode of enforcing the decree will, of course, be the same as that before pointed out for enforcing a decree for the payment of a debt.(m) Mr. Kirtland, in his treatise on the practice in Surrogates' Courts,(«) says the decree for the payment of a legacy may be enforced by at- tachment and imprisonment of the executor.(r2n) It is proper in this place to state,, that although the section in ques- tion, in terms, provides a very summary and effective means for fixing and declaring the liability of the executor or administrator for a debt, legacy or distributive share, claimants seldom avail themselves of the remedy which it appears to furnish. One reason for this is, that the statute does not specifically designate the practice to be pursued on obtaining the decree. The claimant is deterred from prosecuting an executor or administrator under the section, by uncertainty as to the regularity of his proceedings. The practice described in the former portion of this work, on obtaining a decree under the section for the payment of a debt, and above referred to as applicable to the enforce- ment of the claims of legatees and distributees, is suggested as effectual for the proposed purposes, and as in all respects unobjectionable. It is the same as has been approved in the cases which have been brought before the surrogate of the county of New York under the section. Another reason why recourse is seldom had to the remedy intended to be afforded by this section, is, that an account is not, by its provi- sions, expressly required to be produced, and the rendering of as ac- count has been deemed essential to the due adjudication of the rights of the respective parties. The account, however, as it has been at- tempted to show, is properly a part of the defence to the petitioner's allegations. If the executor or administrator, by his silence or by his neglect to furnish an account, permit a decree to go against him for the full amount of a claim, when there is a deficiency to pay other claims equally entitled in full, he will render himself personally liable for the loss. The decree of the surrogate for payment of the claim will not protect the executor or administrator in such payment in case there should be a deficiency. Other claimants will be entitled to their pro rata shares, the same as though the one who had obtained the decree had been paid only in an equal proportion with themselves, and the executor or administrator must personally bear the loss of the excess paid to that one. It is not for the court to assume that there will be (Z) Smith V. Smith, 4 Paige, 2'I1. (m) Ante, p.'34'7; Post, ch. 12. (n) Kirt. Surr. (ed. 1835) 141. («») See the subject of the jurisdiction of the surrogate to enforce his decrees by attadi- ment considered, Ante, pp. 23, 31. ' COMPELLING THE PAYMENT OF LEGACIES, ETC. 428 a deficiency ; on the contrary, unless tlie executor or administrator prove the existence of other claims, and a want of assets to satisfy the whole, the court may conclude that there is a sufficiency for the pur- poses of the present proceedings, and at once decree payment of the claim. The petitioner cannot be obliged to establish the adequacy of "the assets absolutely, because that is a matter of which the executor or administrator alone can have positive knowledge. It will usually be found impracticable for the executor or administrator to show a defi- ciency without bringing in an account. A.mere averment of a deficiency could not be held a compliance with the statute or with the citation to show cause. If, therefore, the section means anything, it is submitted that it may be construed to authorize the surrogate to require of the executor or administrator such a statement of the condition of the assets, and of his proceedings in the performance of the daties of his trust, as will enable him to determine upon the claim of the petitioner ; or, upon his neglect to render such statement, to hold him liable for the whole amount of the claim. It would not seem, then, that the omission by the statute expressly to require an account should cause any real difBi- culty in the case. But the greatest obstacle which is met with in proceedings under this section, generally arises from the omission of the executor or ad- ministrator to publish the notice for the exhibition of claims provided for by the statute. The plea is almost always put in by the executor or administrator that the sufficiency ©f the assets for the required pay- ment cannot be declared, because he has not advertised for and ascer- tained the claims against the deceased in the mode provided by law. It will be remembered that the publication of a notice for the exhi- bition of claims is not distinctly imposed upon the executor or admin- istrator as a duty — ^the terms of the statute are simply permissive ; ■ the executor or administrator may insert a notice in a newspaper, &c.(o) In considering this provision of the statute in connection with the subject of the payment of the debts, it was urged that this phraseology was not to be construed to the delay or inj ury of any person interested in the estate, and that the neglect of the executor or administrator to publish the notice, should not be allowed to protect him against a just demand when the proper time for payment had arrived. But in the court of the surrogate of the county of New York, a dif- ferent rule formerly prevailed, and the mere sugge.stion' of the omission to publish the notice, was invariably held a sufficient reason for the ad- journment of the proceedings against the executor or administrator, whatever they may have been, whether under the present section or under any other provisions of the statutes, for the requisite time to en- able him to make or complete the publication. The ground on which this rule was adopted, was, that it is impossible to say whether there are assets for the payment of the petitioner's claim until the amount of the debts has been definitely ascertained, which can be done only by the advertisement. This would be conclusive as to the necessity and propriety of the delay, if the circumstance of the publication or non- publication of the notice were, by the terms of the statute, within the (e) See 2 E. S. 83, sea 34, a»fe, p- 347, «< i 424 COMPELLING^ THE PAYMENT OF LEGACIES, ETC. cognizance of the surrogate, and lie could oblige the executor or admin- istrator to inform himself, by adyertising, pursuant to the statute or otherwise, as to the amount of the debts and the sufficiency of the as- sets. But the advertising for .claims is entirely optional with the exec- utor or administrator, and the surrogate has no control over him in respect to it. If the executor or administrator obtained an adjournment of the proceedings against him for the purpose of publishing ths notice, and then refused to cause the publication, when the day arrived to which the matter had been adjourned, there was the same reason for a further postponement which there was originally, that the debts have not been duly advertised for and ascertained. From all which appears in the statutes, if the executor or administrator is entitled to one ad- journment of a prosecution against him to enable him to advertise for claims, the same principle applies to entitle him to a second and a third, and indeed to any number, until he sees fit to insert the notice in the newspaper. The necessity for advertising is apparent to the executor or administrator from the outset, and remains the same, and there will be the same difficulty to the last, in positively declaring the sufficiency of the assets, unless he choose to advertise, and thus a decree for pay- ment may be indefinitely delayed. The true rule probably is, and such is the rule, it is understood, now prevailing in the court of the surrogate of the county of New York, that, at the end of the year, the executor or administrator is to be held to have received sufficient assets for the payment or discharge of the claim brought against him, unless he shows distinctly the existence of debts and demands for which the assets which have come into his hands are liable, and which such assets are insufficient to discharge. Some of the -remarks above made with respect to the furnishing of an account on the return of the order to show cause, apply here^ It is for the execu- tor or administrator to show a deficiency. The court may assume that sufficient assets for the payment of the claim have come into his hands unless he prove the contrary. If, by his neglect to publish the notice for the exhibition of claims, the executor or administrator has omitted to put himself in a condition fully to establish the defence of insufficiency, as the fault lies with him, he alone should euffer the consequences. In case debts subsequently appear against the deceased, and there be not sufficient assets to pay the same in full, or in the same proportion as that for which a decree has been obtained, or if it prove afterwards, upon advertising, that the claims, whether of creditors, legatees or persons entitled in distribution already discharged have been overpaid, the executor or administrator must bear the loss himself, and make up the deficiency out of his own property. This course, it is submitted, is in accordance with the inten- tions of the statutes, and is calculated to promote the ends of justice, and to insure fidelity and promptness in the administration. By adopting the views here presented with respect to this section, and the practice under the same, it becomes a very important and effectual provision for fixing and declaring the rights of persons having claims against the assets in the hands of an executor or administrator. It may be observed, however, that care should be taken in decreeing payments against an executor or administrator, that the whole assets in TO WHOM LEGACIES ARE TO BE PAID. 425 his hards be not exhausted thereby. He should be permitted to retain a sufficient portion to meet contingencies in the future progress of the administration, and to await a final settlement of his accounts and dis- tribution thereupon. To what amount, or in what proportion relatively to each claim he should be so permitted to retain, will depend upon the situation of the affairs of the estate as duly represented and proved by him to the surrogate. The enforcing the payment of legacies by proceedings to compel the executor or administrator to account before the surrogate, will be treated of in a future portion of this work, when the provisions of the statutes expressly regulating the rendering and settling of the accounts of executors and administrators come to be considered. The above sections, numbered 9, 10, 11, 12, 13, 2 E. S. 114, 115, 19, 20, 21, 22, 2 R. S. 450, 51, provide for the recovery of legacies and dis- tributive shares by suits in the common law courts against executors and administrators after the expiration of the year, as well in favor of minors as of persons of full age. The remedy in the Surrogate's Court or in a court of equity for enforcing the payment of a legacy, be- ing more speedy and practicable, and except in the case of minors un- attended with the giving of security, it is believed that those sections are seldom resorted to. They are incKided above, as forming a portion of the statutory system relative to the government of executors and ad- ministrators, and the disposition (3f the property of decedent-s ; they do not seem to call for any particular comments. To whom Legacies are to he Paid. The inquiry to whom legacies are to be paid is one of great impor- tance to the executor, who must be careful to pay legacies into the hands of those who have authority to receive them. " If a legacy be given to A., to be divided between himself and his family, and the executor pays the legacy to A., it is well paid to dis- charge the executor. " It is a general rule, that, where the legatee is an infant, and would be entitled to receive a legacy if he were of age, the executor is not justified in paying it either to the infant, or to the father, or any other relation of the infant, on his account, without the sanction of a court of equity.(j9) And even in the case of a child who has attained ma- jority, payment to the father is not good, unless it be made by the con- sent of the child, or confirmed by his subsequent ratification. " It may happen that an executor has, with the most honest inten- tions, paid the legacy to the father of the infant; nevertheless he will be held liable to pay it over again to the legatee on his coming of age. And although such cases have been attended with many circumstances of hardship on the executor, yet he has been held responsible, on the policy of obviating a practice so dangerous to the interests of infants, and so naturally productive of domestic discord."(5') By the above section of the statutes, numbered 40, a legacy of less (■p) Genet v. TaUmadge, 1 Johns. Oh. Eep. 3 ; Morrell v. Dickey, 1 Johns. Oha. Eep. 153. (}) Wma on Exrs. 1206-7, and cases cited. 426 TO WHOM LEGACIES ARE TO BE PAID. than the value of $50 to a minor, may be paid to the father of the legatee to the use and for the benefit of such minor. By the next section, if the legacy be of the value of $50, or more the general guardian of the minor is entitled, under the direction of the surrogate, to receive, it, and he is to be required to give security to the minor, to be approved by the surrogate, for the faithful application and accounting for such legacy. It will hereafter appear in that 'portion of this work treating of the appointment of guardians, that a general guardian, excepting one appointed by deed or will, before obtaining his letters, is obliged to give security to the minor for the faithful dis- charge of the duties of his guardianship. The present section furnishes an additional safeguard to the minor's interest, by providing especially for the preservation for his benefit of a legacy Isequeathed to him. And it would seem from the section that, although the legacy in the particu- ' lar case is the only property of the minor, and the appointment of the guardian is for the sole purpose of receiving it, yet that the guardian must give double security, once before the grant of the letters of guar- dianship, and once to enable him to receive the legacy. The term general guardian, includes guardians appointed by deed, testamentary guardians, and those appointed by the Court of Chancery or the Surrogate's Court. Either of these must comply with this pro- vision before he is authorized to receive a legacy bequeathed to his ward. Until security to the minor has been given by the guardian and approved by the surrogate, and his directions for payment of the legacy obtained, the guardian is not in a condition to receive, nor is the exe- cutor authorized to pay the legacy. It follows from this, that the guar- dian cannot take proceedings, at least in the Surrogate's Court, to compel the payment of the legacy, unless he has first procured the direction of the surrogate. In Hoyt v. Hilton,{r) the Vice-Chancellor intimates an opinion that the surrogate may direct the payment of a minor's legacy to his guardian without requiring security, but the last clause of the present section of the statute does not seem to have been adverted to in the case. It is submitted that the language of that clause is imperative, and cannot be construed to allow the security to be dispensed with.(s) The kind or amount of the security which is to be taken is not de- fined, but rests entirely in the discretion of the surrogate. A bond with one or more sureties in double the amount of the legacy, will usually be demanded. The proper form of proceeding on the part of the guardian, in order to receive a legacy bequeathed to his ward, is, to present to the surro- gate a written application, alleging the legacy and offering the security, and praying a direction for the payment. If the surrogate consider the proposed security sufficient, on the same being given his direction for the payment will be made. The custody of the instrument of which the security consists is not prescribed by the statute, but it is (r) 2 Edw. Ch. Rep. 20S. _{s) A general guardian cannot sustain a bill in Chancery for the payment of a legacy. A suit for the benefit of infants should be brought by a prochem amy ; and since' the Revised Statutes, no one else can do it. " I hold the statutes," says the Vice-Chanoellor, in the case last referred to, " to be imperative on this head." TO WHOM LEGACIES ARE TO BE PAID. 427 doubtless to be filed witb the surrogate. The direction of the surrogate for the payment will be given in writing in the shape of an order, which must be duly entered in the minutes. It cannot be too strongly impressed upon the executor, that he should be careful, before paying a minor's legacy to his guardian, to see that the direction for the pay- ment has been given by the surrogate, as otherwise he will always re- main liable to the legatee for the amount of his legacy, in case his guardian shall have misapplied it. A person appointed a guardian to an infant, in another state, is not entitled to receive from the administrator here the legacy or portion of the infant. The guardian must be appointed here, and give competent security, to be approved of by the court, before the payment of the infant's money will be ordered.(<) The above sections, numbered 48, 49, 50 and 51, provide for the payment to the surrogate of a legacy bequeathed to a minor, having no general guardian, or where direction . for the payment to the guardian is refased, for the investment and subsequent disposition thereof. They are perfectly explicit in their provisions, and do not suggest any sub- ject for remarks. The above section of the statute, numbered 12, in connection with the preceding sections, numbered 9, 10 and 11, and the following 13th section, provides for and regulates the recovery of legacies bequeathed to minors, and also of distributive shares to which they are entitled, by suits at law against executors and administrators. They offer nearly the same protection to the minor's interests as is provided by the sec- tions above considered. " When the direction to the executor is not to pay the legacy to the child, but the bequest is made to a trustee for him, the executor will be justified in paying the money to the person so appointed. Hence, if the testator order the sum to be paid to the father, he will be a trustee for his child, and entitled to receive the money, and his receipt will be a good discharge to the executors. It would appear, on principle, that the direction for payment to the trustee must appear upon the face of the will, and cannot be proved by parol evidence." It may also be observed, that an executor cannot, without risk, un- less under the direction of the surrogate or of a competent court, pay any part of a legacy bequeathed to an infant, either to the infant, or to any person for his use ; therefore, the executor is not justified in apply- ing any part of the capital of the legacy for the maintenance or advance- ment of the child, or any other purposes than mere necessaries, without the sanction of the court. But with respect to the interest of the sum . bequeathed, it should be seen, that the executor may apply a requisite part of it for the Support of the infant legatee, without the authority of the testator, if he does no more than the court would have directed, if it had been resorted to in the first instance ; for the principle is estab- lished, that if an executor do, without application, what the court would have approved, he shall not be called upon to account, and forced to undo that, merely because it was done without application.(M) If) Mbrrell v. Dickey, 1 Johns. Oh. Rep. 153. (u) See "Wms. on Exrs. ] 208-11, and cases cited. ' 428 TO WHOM LEGACIES ABE TO BE PAID. The case in which a portion of a legacy may, under the order of the surrogate, be advanced to a legatee, previous to the expirationof the year, as necessary for his support, has already been treated of ;(t;) and after the year has elapsed, and there is no further object in requiring security, where the executor has made advances to a minor legatee, al- though without the order of the surrogate, he will probably be pro- tected, if he show tliat such advances were necessary for the minor'a support, and were made under such circumstances as would have authorized the surrogate to allow them, if the application had been made previous to the expiration of the year. It may be added, that if a court of equity can discover a clear act of the legatee, when of age, confirmatory of the applicatiou of his legacy by the executor, during his minority, it will hold him estopped from claiming a repayment.(w) Where a testator is the parent, or in hco parentis, of an infant lega- tee, whether the legacy be contingent or vested, interest on the legacy shall be allowed as a maintenance from the time of the death of the testator. This subject will be pursued hereafter, together with the subject of interest generally. (x) It was formerly the law, that if a legacy was given to a married woman, it should be paid to the husband. So, where a legacy was given to a married woman living separate from her husband, with no maintenance, and the executor paid it to the wife, and took her receipt for it, yet, on a sait instituted by the husband against the executor, he was decreed to pay it over again, with interest.(2/) It was also ad- judged, that if the husband and wife were divorced a mensa ei thoro, and a legacy was left to her, the husband alone might release it,(z) and, consequently, to him alone was it payable.(a) But the Court of Chancery, upon the application of the wife, might restrain the husband from proceeding at law to obtain the possession of a legacy, or a portion in personal estate which came to her by will or inhcrita,nce, until he made a proper provision for her support. The court, however, would not allow a maintenance to the wife out of the property which at law belonged to the husband, by virtue of his mari- tal rights, although she had an equity therein, while she was living separate and apart from her husband, against his consent, and without any justifiable cause.(&) But now, by statute, (c) any married female may take, by devise or (a) See supra, pp. 425-6. (w) 1 Rop. Leg. m, :^d ed.; Wms. 1210. (a;) See Wms. 1211 ; I.fra, p 429, el seq. (y) "Palmer v. Trevor, 1 Vern. 261 ; Toller, 320. See, also, Steed r. CaBej/, 2 M. & K. 52." (z) Stephens v. Tolly, Cro. Eliz. 90S, and other authorities cited; Wms. 1213-14, n. (o) " See Green v. Otle, 1 Sim. & Stu. 250 ;" Wms. 1213. (6) Fry v. Fry, 1 Paige, 461. • See, also, Udall v. Kenney, 3 Cowen, 590 ; 6 John. Ch. Eep. 664; HanlandY. Bloom, 6 John Ch. Rep. 178; Van Fppes v. Van Dmsen, 4 Paige, 64; Van Diizer v. Van Duzer, 6 lb. 366 ; Dunn v. Browyer, 2 McCord, 368; 1 West's Rep. 681; 2 Kent's Coram. 138 el seq. ; 2 Story's Eq. Jur. 630 el seq. The equity of a married woman for a settlement does not survive to her children ; and where there is no contract for a settle- ment, nor any proceeding by the wife to enforce one during her life, the creditors of the hus- band are entitled to a legacy bequeathed to her, and her children have no equity to prevent its payment to them. Barker v. Woods, 1 Sandford's Ch. Rep. 129. (c) Act for the more effectual protection of the property of married women, passed 1th April, 1848 ; S. L. 1848, ch. 200, p. 30'7. Amended by ch. 375, of the Laws of 1S49, passed 11th April, 1849 ; S. L. 1849, 528 ; 2 E. S. (4th ed.) 331. See ante, pp. 57, 217-18. INTEREST UPON LEGACIES. 429 bequest, and hold to her sole and separate use, real and personal prop- erty, and any interest or estate therein, in the same manner and with the like effect as if she were unmarried. An executor, therefore, may now safely pay to a married woman a legacy bequeathed to her since this statute took effect, and her receipt will be a valid discharge for the same. Indeed, she is the only person entitled to receive such legacy, and a payment to her husband would not protect the executor. But, with respect to legacies which took effect before the passing of the statute, the former law probably prevails, the ancient marital rights of the husband attach, and his receipt will be requisite to the valid dis- charge of the legacy. It may be observed, in conclusion, that, by the former law, when a bequest was made to the separate use of a married woman, as Avhere it was given " for her own use, and at her own disposal," she alone could give a good discharge for it. Her husband had no interest in the fund, and she might sue for it by her next friend.((^) Of Interest upon Legacies. Specific legacies are considered as separated from the general estate, and appropriated at the time of the testator's death ; and, consequently, from that period, whatever produce accrues upon them, and nothing more or less, belongs to tlie legatees ; therefore, where there is a specific legacy of stock, the dividends belong to the legatee from the death of the testator ; and it is immaterial whether the enjoyment of the principal is postponed by the testator or not.(e) Accordingly, it should seem that the specific legatees of cows, mares or ewes are entitled to the brood fallen between the death of the testa- tor and the assent of the executor to the legacy. So, also, as to the wool of sheep shorn, &c.(/) But if inanimate and unproductive articles of property are bequeathed and not delivered, it does not follow that the legatee is entitled to interest upon their value, out of the estate, by way of recompense for the detention ; if improperly withheld, the remedy is against the executor personally. The case of Apreece v. Apreece,{g) shows that a specific legacy (as a ring, where the value is fixed by the testator) does not carry interest.(/i) " General legacies in their nature carry interest ; and, as in the case of all other claims with that incident, the interest is to be computed from the time at which the principal is actually due and payable. " In the further consideration of the doctrine of allowing interest on general legacies, the subject may be regarded, first, in cases where the testator has not fixed any time of payment ; secondly, in cases where the time of payment is^named by him. 1st. When no time of payment is fixed, the executor is by law allowed one year from the testator's death to ascertain and settle his (d) "Wms. 1218, and cases cited; Quildr. Feck, 11 Paige, 475. (ei Wms. 1221 ; Parkinson v. Parkinson, 2 Bradf. Surr. Eep, 11. (/) lb. 1021. (g) 1 Ves. & B. 364. (ft) Isenhari v. Brown, 2 Edw. Ch. Eep. 348. But see note to Wms. on Exrs. 1021. 430 INTEREST UPON LEGACIES. affairs ; at tlie end of whicli time the court, for the sake of general con- venience, presumes the personal estate to have been reduced into pos- session.(i) Upon that ground, interest is payable from that time, un- less some other period is fixed by the will ; nor will interest he payable from an earlier date, although there is a direction in the will to pay the legacy ' as soon as possible.' If, indeed, a legacy is given in lieu of dower, (m) or is decreed to be a satisfaction of a debt, the court always allows interest from the death of the testator. A further exception to the rule exists in the case of a legacy given to a child by a parent, whether by way of portion or not ; in which instance the court -will give interest from the death, to create a provision for its maintenance. So, where a testator bequeaths a sum of money to an infant, and directs that his maintenance shall be paid out of the interest of that sum, the payment of interest will be allowed from the death, and not be post- poned till the end of one year after."(j3 This exception, however, is confined to legacies in favor of infants, and has never been extended to a legacy given to an adult.(7i;) Nor does it apply to the case of a wife.(Z) Again, a legacy to a child whose support and maintenance is other- wise provided for by the bouilty of the testator, like a legacy to a more distant relative, or to a stranger, is not payable and does not draw interest until one year after the death of the testator, where no time of payment is prescribed by the will.(m) After the expiration of the year from the death of the testator, the legacy will carry interest, although payment be, from the condition of the estate, impracticable, and although the assets have been unpro- ductive.(n) And there is no exception on the ground of the legatee's not being in a situation to receive, or omitting to demand payment.(n») It is a general, settled and fixed rule, that pecuniary legacies hear in- terest from the expiration of twelve months if there should at any time be a fund for the payment of them, and that in case the fund was pro- ductive within the twelve months, all the intermediate profits belong to the residuary legatee. The executor may pay the legacy within the twelve months, but is not compellable to do so. He is not to pay in- terest for any time within the twelve months, although during that time he may have received interest. But if he has assets, he is to pay interest from the end of the twelve months,, whether the assets be pro- ductive or not.(o) An annuity bestowed by wil^ without mentioning any time of pay- ment, is considered as commencing from the death of the testator, a,nd the first payment as due at the expiration of one year ; from which latter period interest may be claimed in cases where it is allowed at all.(p) (i) See Hawky v. James, 5 Paige, 318. (ii) Hepbv/rn v. Heplyui/rn, 2 Brad£ Surr. Eep. 14. (j) Wms. 1222, and cases cited. (fc) Raven v. Waite, 1 Swanst. 553. , (I) "Street v. RoUnson,\2 Tes. 461 ;" Wms. on Ezra. 1222. (m) Williamson v. Williamson, 6 Paige, 298. In) See Wms. 1223. (nn) Marsh v. Hague, 1 Bdw. Oh. Eep. 114. (o) Pearson v. Pearson, 1 Soho. & Lefr. 10 ; Wms.- 1224. (p) See Eyre v. GoUing, 6 Binney, 415. PAYMENT OR DEUVERT OP SPEOIPIO LEGACIES. 431 The question whether a tenant for life of a fund is entitled to the in- terest of it from the death of the testator, or from the end of tte year after his death, has been considered at a previous page. " With respect to interest on general legacies, where the time of pay- ment is fixed by the testator. The general rule is, that the legacies will not carry interest before the arrival of the appointed period ; as, for instance, when the legatee shall attain twenty -one ; nor will it make any difference that the legacy is vested. " But this rule is subject to an exception in case of the testator being the parent (or in loco parentis) of the legatee. For there, whether the legacy be vested or contingent, if the legatee be not an adult, interest on the legacy shall be allowed, as a maintenance, from the time of the death of the testator ; if there is no other provision for that purpose. The court will determine the quantum of allowance, either the whole of the usual interest allowed by the court, or less, according to circumstances. " Where the legatee is a child of the testator, and a specific sum is given by the will for maintenance, no greater allowance can be claimed for that purpose, although it be less than the usual rate of interest upon the legacy. But the court has in some cases increased the allowance, where it was insufficient for a reasonjtble maintenance, and where the legacy was vested. " This exception is not extended in favor of nephews and nieces, nor of grandchildren, (g) unless the testator were in loco parentis. " Where the payment of a legacy is postponed by the testator to a future period, as until the legatee attains twenty-one, and the will di- rects that when that period arrives the payment shall be made vnth in- terest, the legacy will bear interest only from the end of the year after the testator's death.'Yg'g') The legacy will generally, it is apprehended, carry' interest at the full legal rate. The interest on legacies is to be computed upon the principal only, and not upon the principal and interest. But under particular circum- stances, the court Avill allow the legatee compound interest. As where there is an express direction in the will that the executor should lay out the fund to accumulate, and he neglects so to do.(r) A legacy to an executor, it seems, will not carry interest.(s) Of the Payment or Delivery of Specific Legacies. With respect to the payment or delivery of specific legacies, although, as a general rule, it is well settled that a will of personal property relates to the time of the death of the testator, both as to the legatees and the subjects of the bequests mentioned in the will, yet, in the case of specific legacies, it is sometimes very difficult to ascertain whether heintended to confine the bequests to the subject matter thereof as it existed at the time of making the will, or as it might exist at the time (q) I/wpUm v. Lupton, 2 Johna Oh. Eep..614. \gq) Wms. 1226-7, and cases cited. (r) "Wms. 1230, and cases cited, ^eepost, chap. 12. (a) See Morris v. Kent, 2 Bdw. Oh. Eep. 182 ; Preston on Legacies, 281. 432 PAYMENT OR 0BLIVEET OP SPECIFIC LE&ACIES. when such will should take effect by his death. But to take the case out of the general rule, that in a will of personal estate, the testator is presumed to speak with reference to the time of his death, there must be something in the nature of the property or thing bequeathed, or in the language used by the testator in making the bequest thereof, to show that he intended to confine his gift to the property, or subject of the bequest, as it existed at the time of making the will.(<) Thus, where the testator directed by his will that his son should be discharged from all notes which he held against him, and from all charges made against him on book or otherwise, for loans or advances by the testator to or for him, and all claims against him for the occu- pation of, or rents by him received for two houses and lots in that clause of the will mentioned ; and likewise released to his son-in-law all the moneys which the latter owed for moneys advanced to or for him, by the testator ; it was held, that this provision in the will had reference to the state of the subject matter of the bequest as it existed at the time of the death of the testator, and that all debts, therefore, which were due from the son, or from the son-in-law, to the testator at the time of his death, and which answered the description contained in this clause of the will, were discharged, except as against creditors of the estate, who would have a right to resort to the same in case of a deficiency of other property to pay the debts.(M) So if the bequest be general, as of all the testator's goods in a particular house or place, whatever personal chattels are found there at the time of his death will pass, though not there at the date of the will.(i') " However, if the testator shows a clear intention to dispose of such goods as belonged to him in a particular place at the date of his will, property after\vards brought there will not pass : as where the bequest is, ' of all such part of my personal property as is now in my house at " It may be observed, that it is the duty of executors as far as possi- ble, to preserve articles specifically bequeathed, according to the testa- tor's wish ; and unless compelled they ought not to apply them to the payment of debts."(w) And it may be further remarked, that it is also the duty of the exe- cutors to get in all the testator's estate, whether specifically bequeathed or otherwise ; and that the expenses incurred in doing so must be paid out of the general estate, as part of the expenses of the administra- tion. (x) " It may be added, that if a testator, dying solvent, bequeaths to A. a given number of articles forming part of a stock of articles of the same description, as for instance, if he has twenty horses in his stable and bequeaths six of them, the legatee, and not the executor, has the right of selection.(y) There has already been occasion to point out, that if a testator should (i) Van, Vechten v. Van Veghten, 8 Paige, 104. (u) 8 Paige, 119. («) Wms. 1233. (w) " Clarke v. Ormonde, Jacob, 108;'' 2 E. S. SI, sec. 26; ante, p. (x) "Perry v. Meddowcroft, 4 Beav. Ii04." SVms. 1235. (y) "Jacques v. Chambers, 2 Coll. 43a," Wmsi 1235. ELECTION. 433 happen to direct his executor to deliver a specified packet, part of the property of the deceased,' to a particular legatee unopened, the execu- tor caunot, consistent with his duty, comply with this direction.(2) Of Election. The doctrine of election can only be so far treated of within the limits and design of this work, as to state briefly the nature of the sub- ject and some of the leading principles established with respect to it. " It is a principle of equity, that a person who accepts a benefit under an instiument, must adopt the whole, giving full effect to its provisions, and renouncing every light inconsistent with it. If, therefore, a testa- tor assumes to dispose of property belonging to A., and devises to A. other lands, or bequeaths to him a legacy, by the same will, A. will not be permitted to keep his own estate, and enjoy at the same time the fruits of the devise or bequest made in his favor, but must elect whether he will part with his own estate, and accept the provisions of the will, or continue in the Enjoyment of his own property, and reject that bequeathed. " It is not requisite, for the operation of this principle, that the tes- tator should be aware that the property, of which he so undertal^es to dispose, is not his own. The obligation of making an election will be equally imposed on the legatee, although the testator proceeded on an erroneous supposition that both the subjects of the bequest were abso- lutely at his own disposal. " It is necessary, however, that the intention of the testator to dis- pose of the property which is not his own, should be clear : the inten- tion must appear by demonstration plain, by necessary implication. And it must appear, as it should seem, upon the face of the will : for it seems now to be established that parol evidence is inadmissible for the purpose of showing it.(a) " The doctrine of election is applicable to interests, immediate, re- mote, contingent, of value, or not of value. " It must, however, be observed, that the doctrine does not preclude a party claiming by the will from enjoying a derivative interest, to which .he is entitled at law, under a legal estate taken in opposition to the will. Thus a man may be tenant by curtesy of an estate tail, held by his wife in opposition to a will under which he accepts a legacy.(J) "Nor is that doctrine applicable as against creditors taking the bene- fit of a devise for payment of debts, and also enforcing their legal claim upon other funds disposed of by the will. " Again, the doctrine of election is not applicable where real property is assumed to be devised by a will made by a person who is incapable, by reason of infancy or coverture, to devise real estate, and who, by the same will, valid as to personal estate, gives a legacy to the heir. In such a case the heir may take the legacy withoht making good the devise, unless the will contains an express condition to that effect an- nexed to the legacy, "(c) (z) See ante, chap. 7, p. 253. (a) Wms. 1236-7, and cases cited; 2 Story Eq. Jur. sec. 1075 e( seg., chap. 30. (6J Wms. 1 237, and cases cited. (c) Wms. 1238, and cases cited. 28 434 ELECTION. It is further necessary to consider tlie subject as applied to tte case of a widow entitled to dower. The EcAdsed Statutes, part 2, chap. 1, title S,{d) enact: Sec. 1. A widow shall be endowed of the third part of all the lands whereof her husband was seized of an estate of inheritance, at any time during the marriage. Sec. 12. If before her coverture, but without her assent, or if after her coverture, land shall be given or assured for the jointure of a wife or a pecuniary provision be made for her in lieu of dower, she shall make her election whether she will take such jointure or pecuniary provision, or whether she will be endowed of the lands of her husband, but she shall not be entitled to both. Sec. 13. If lands be devised to a woman, or a pecuniary or other pro- vision be made for her by will, in lieu of her dower, she shall make her election whether she will take the lands so devised, or the provision so made, or whether she will be endowed of the lands of her husband. Sec. 14. When a woman shall be entitled to an election under either of the two last sections, she shall be deemed to have elected to take such jointure, devise or pecuniary provision, unless within one year after the death of her husband she shall enter on the lands to be as- signed to her for her dower, or commence proceedings for the recovery or assignment thereof. " A testamentary provision for the wife is deemed a gratuity or be- nevolence, which she may take in addition to her dower, unless the testator has plainly manifested a different intention, as by saying that the gift is in lieu or bar of dower. Express words will not, however, be necessary, if the claim of dower is so utterly inconsistent with the «terms of the will that the widow cannot have both gift and dower without breaking up the testator's plan of disposing of his estate. In such a case she may be put to her election. But the mere fact of de- vising lands to another, does not prove that the husband intended to bar dower in those lands. He may have intended that the devisee • should take, subject to dower. It is not necessary that he should say so, because the law says it for him. So, if he direct the lands to he sold, and the proceeds to be distributed, that does not prove that he meant to bar dower. He may have intended that the purchaser should take, subject to the legal rights of the widow. Indeed, such is pre- sumed to be his intention until the contrary appears. Dower is a legal right over which the husband has no direct control. He may offer something else in lieu of it, which, if accepted, will be a bar. But if he make a provision for the widow, either in lands or money, saying nothing about dower, the presumption is, that he intended it as matter of bounty." This doctrine will be found to be fully sustained by the cases and the authorities.(e) Thus, in Jackson v. Ghurcliill,{f) the Avidow was, by the will, pro- vided with a house and garden, some furniture, a servant girl, and with some stock. One s6n of the testator was directed to keep the stock, (dC) 1 B. S. V40 ; 4th ed. (2d vol.) 149. (e) See Bull v. Church, 5 TTi11, 20V, and cases and authorities cited. (/) 7 Cowen, 281. ELECTION. 435 and the other to assist hig mother, if she required it ; but no means were given her to compel compliance, if refused. It was held that there was nothing in this provision inconsistent \\ ith the widow's claim of dower — that it constituted no objection that the property devised to the sons would be less valuable on account of her dower. " There was no incongruity," it was §aid, "in enforcing the claim for dower and the devise ; that the two might stand well together, and that it might fairly be inferred that the testator intended the devise as additional to his wife's claim for dower." So, in Bull and wife v. Ohurchf{r/) where a testator devised all his real and personal estate to his wife daring her life, or so long as she should remain his widow, with remainder to his children ; and after his death the widow entered and occupied under the will for several years, and then married a second husband, it was held that she was entitled to dower. The question may arise, what shall constitute a valid election by the widow. "Where the testator devised certain lands to his widow, and also be- queathed to her an annuity, in lieu of her dower in his real estate, and the widow, within two months after his death, executed a deed of relin- quishment of the provisions made by the will, and elected to take her dower, and procured the deed to be recorded, and gave notice of such election to the testator's executors and trustees, who recognized her right to dower, and made payments to her out of the rents and profits of the estate on account of her dower, it was held that this was a valid election by the widow to take her dower, and was equivalent to an actual entry on the land, or the commencement of proceedings for the recov- ery of her dower, within the provisions of the Eevised Statutes.(A) If a widow gives notice to the person who is in possession of the lands of which she is endowable, of her election to have her dower instead of the testamentary provision in lieu of dower, and such per- son thereupon admits her right, and voluntarily pays her a part of the rents and profits of the land, as and for her dower therein, it is in equity a valid election by her, and is equivalent to an entry on the lands, or an assignment of dower, for the purpose of determining such election. (A) It is not necessary, for the purpose of making a valid election by the widow, that she should make entry upon, or commence proceedings for the recovery of dower in every distinct parcel of the lands in which she is entitled to claim dower. It is sufficient if she has not accepted of the provision made for her in lieu of dower, that she actually com- mences proceedings, within the year, for the recovery or assignment of her dower in any part of the lands as to which her right of election ex- ists ; or that she enters upon any part of such lands, claiming her dower therein. (A) Where, however, the widow in the first place elected to take the provision made for her by the will in lieu of dower, and a purchaser of certain lands charged by the will with a contribution towards her sup- port, which was a portion of that provision, refused to furnish the share with which that part of the lands was chargeable, it was held that the ) to be " very incorrectly penned." (o) The following is the 16th section referred to : XVI. And ie it fij/rthe)- enacted, That just and equal distribution of what remaiuDth dear of the goods and personal estate of any person dying intestate, after all debts, funeral charges and just e-xipenses, first allowed and deducted, shall be made amongst the wife and children, or children's children, if any such there be, or otherwise to the next of kin to the intestate, in equal degree, or legally representing their stocks ; that is to say, one third part of the surplus to the wife of the intestate, and all the residue, by equal portions, to and amongst . the children of such person dying intestate, and such persons as legally represent such children, in case any of the said children be then dead, other than such child or children who shall have any estate by settlement, or shall be advanced by the intestate in his lifetime, by portion or portions equal to the share which shall, by such distribution, be allotted to the other children to whom such distribution is to be made ; and in case any. child shall have any estate, by settlement from the said intestate, or shall be advanced by the said intestate, in his lifetime, by portion not equal to the share which wiU be due to the other children by such distribution as aforesaid, then so much of the surplusage of the estate of sucji intestate shall be distributed to such child or children as shall have any land by settlement from th» intestate, or, where advanced in the lifetime of the intestate, as shall make the estate of all the said children to be equal, as near as can be estimated ; and in case there be no children, nor any legal representatives of them, then one moiety of the said estate shaUbe allotted to the wife of the said intestate, and the residue of the said estate shaU be distributed equally to every of the next of kin of the intestate, who are in equal degree, and those who repre- sent them ; but no representation shall be admitted among collaterals after brothers' and sisters' children ; and in case there' be no wife, then aU the said estate shall be distributed equally to and amongst the children ; and in case there be no child, theil to the next of kin, in equal degree, of or unto the intestate, and their legal representatives as aforesaid, and m no other manner. Provided, however, That if, after the death of a father, any of his children shall die intestate, without wife or children, in the lifetime of the mother, every brother aad Bister, aud the representatives of them, shall have an equal share with her, {pi 1 Atk. 455. EIGHTS OF THE CHILDREN OF THE DECEASED, ETC. 531 The reyisers, in their notes,(g') say that they conformed those parts of the section, which w^ere most defective, to the decisions ; but made no alterations in principle. The term deceased was substituted for intes- tate, in order to provide for the case where there is a will which does not bequeath the estate. The part respecting advancement was deemed more proper for a separate section. This just and equitable provision respecting advancements has been also said to be derived from the coUatio honorum of the imperial law, which it certainly resembles in some points, though it differs widely in others. But it may not be amiss to observe that, with regard to goods and chattels, this is part of the ancient custom of London,^ of the pro- vince of York, and of the sister kingdom of Scotland ; and, with re- gard to lands descending in co-parcenary, that it has always been, and still is, the common law of England, under the name of hotch-pot, (r) The former provision in the statute was held to apply only to the case of actual intestacy ; and where there was an executor, and, con- sequently, a complete will, though the executor might be declared a trustee for the next of kin, they took as if the residue had been actually given to them. Therefore, a child advanced by his father in his life, or provided for in the wUl, could not be called on to bring his share into hotch-pot.(s) And notwithstanding the words " such deceased person," in the 76th section, include all deceased persons mentioned in the preceding section, whether dying intestate or leaving a will, not be- queathing a portion of the personal property, yet it is apprehended that it was not designed to alter the law in this particular, and that the present statute is to be construed with reference to the previous deci- sions. This view is supported by the fact that the revisers have not noted any change in the law in this respect, which, without doubt, they would have done had a change been intended, and, by their re- mark bered 30, directs that in case administration of the'estate of a married woman intestate, be granted to any person other than her husband, such administrator shall pay over the surplus, after discharging the debts, to such husband or his personal representatives. The act of 1848, for the more effectual protection of the property of married women, (c) as amended by the act of 1849,(cZ) provides, that the real and personal property of a married woman shall not be subject to the disposal of her husband, nor liable for his debts, but shall be her sole and separate property, as if she were a single female ; and that any mar- ried female may take by inheritance, or by gift, grant, devise or bequest from any person, other than her husband, and hold to her sole and sep- arate use, and convey and devise real and personal property, and any interest or estate therein, and the rents, issues and profits thereof, in the same manner and with the like effect as if she were unmarried; and the same shall not be subject to the disposal of her husband, nor be liable for his debts. " The acts of 1848 and 1849," it was laid down by the surrogate of the county of New York, in McCosher v. Oolden,{e) "do not undertake to disturb the law in regard to the estates of married women dying intestate. They are authorized," continues the learned surrogate, "to take, hold, convey and devise; but, in default of a will, the es- tate is transmitted, after death, precisely as it was before these acts were passed. A married woman may sell or bequeath her personal estate ; but if she dies intestate, the law declares who shall take it. Now, as before, if she dies intestate, the husband may demand admin- istration ; or if a stranger administer, he is entitled to the residue, after payment of debts ; and as to him the Statute of Distributions is a nul- (6) Story's Confl. of La-res, 402, and cases cited, (c) S. L. 1848; 2 R. S. (4th ed.) 331. id) S. L. 1849; 2 R. S. (4tli ed.) 331. (e) 1 Brad£ Surr. Rep. 64. DISPOSITION OF THE PEOPBRTT OF INTESTATE MARRIED "WOMEN. 541 lity. That statute does not apply to tlie case of 2, feme covert dying in- testate." The learned surrogate supports this view of the statute, by citing several English decisions as to the disposition of the personal property of a married 'woman dying intestate, held under a marriage settlement or contract, to her use, with the same power and control as if she were sole and unmarried, and making no provision for its dispo- sition after death, in which cases it has been held that the husband took such property.(y) He regards these English decisions- as clearly in point, with reference to the construction of these statutes, and concludes his opinion in the case as follows : "I cannot, accordingly, see that these acts, which have enabled a married woman to have the sole con- trol and absolute ownersliip of her property during her life, with power to sell and convey, and also to regulate its disposition after her death, have at all altered the law as to the administration of her personalty, in case of intestacy. Where the wife has failed to exercise the 'privi- lege conferred upon her by these new statutes, and dies intestate, pos- sessed of personalty, her husband has still the sole right to administer, and, as administrator, to retain the residue of the estate, after the pay- ment of debts, to his own use. The right of representation, unless he be incompetent, and the right of succession to the property, are stOl exclusively vested in him, to be defeated only by a valid will." The surrogate of the county of Erie is stated to have decided the same point the same way, pursuing a similar line of reasoning. But the doctrine has not been entirely unquestioned. In Paine v. Bartlett, Administrator, &c., in the Superior Court of the city of New York, at special term, Mr. Justice Hoffman, after an elaborate and- able ex- amination of the question, declared his opinion, that the statute of 1848 has superseded the right of the husband to the wife's property, where the marriage was after the act, although he survives her ; that although the formal right to administer may still be in him, he becomes a trustee for the next of kin, and that the next of kin to the married woman intestate, were entitled in distribution to her personal property. This case was heard, upon appeal, at the general term of the court ; but it was decided there upon another point. It is proper to mention-, how- ever, that it is understood that if the learned justices at the general term had found themselves called upon to determine the point in question, their decision would not have sustained the judgment of the learned justice at special term. The construction and effect of these statutes may, therefore, be regarded as unsettled ;^ but the view taken by the learned surrogate of the county of New York in the case quoted, is probably that which will be adopted by the courts.(^) (/) Salmon \. Says, 4Hagg. S86; MoUonyy. KennedA/, 10 Simons, 254; Proudky v. Fielder, 2 M & K. 57. (g) The reported decisions under these statutes a,fford but little light upon the question. It has heen held that they cannot operate to divest a husband of his right as tenant by the curtesy, -where the marriage took place before the act, nor to dispossess him of the right to the rents and profits of her real esflte during coverture, in the same state of facts. It has also been held that the -wife may not directly convey her dower right to her husband. Gra- ham V. Van Wyck, 1 Ho-w. Prao. Rep. 313 ; Surdv. Cass, 9 Barb. S. C. R. 366 ; Van Sickle v. Van Sickle, 8 How. Prac. Rep. 265 ; White v. White, 4 How. Prac. Rep. 103. The Court of Appeals, it is understood, have recently decided, in the case of Westenelt v. Gregg, that the 542 FORM OF THE StTEROGATE'S DECREE. Of Securing the Distributive Shares of Minors, _ Under the above section, numbered 80, the surrogate may direct tlie distributive share of a minor to be paid to his guardian, or to be invested as before provided(p'p') with respect to legacies to minors. It will be observed, that the surrogate is not required to demand security from the guardian before directing the payment to him of a minor's distribu- tive share, as he is before directing the like payment of a legacy. But it is without doubt competent for him, if he distrust the entire adequacy of the guardian's responsibility, to direct the payment to be withheld until satisfactory security be given, and to order the distributive share in the meantime to be invested. The 81st section directs, in certain cases, the payment into the state treasury of the surplus which would otherwise be distributed. Of the Form of the Surrogate's Decree. The practice on an accounting before the surrogate having thus been gone through with, and some of the various topics and questions which present themselves for consideration in the course of the proceedings, having thus been discussed, some remarks are now to be offered with respect to the form of the surrogate's final sentence or decree in the matter, and also of the decree for distribution. It is not within, the design of this work to consider how far the sur- rogate's decree in the case of an accounting, or in any other case, wUl be of itself, in a subsequent suit or controversy, evidence of any other facts stated in it than those of which it is by the statute expressly made conclusive against the parties. It can only be stated that it is common to include, in the final decree for distribution, various statements of facts which, although they may not strictly be received as evidence in any collateral inquiry, are, nevertheless, a necessary portion of the history of the proceedings, and may become of importance to render the decree intelligible, and to assist and guide future investigations into the matter. The decree for settlement of the account is usually very simple and brief in its form. It has been seen that, by statute, (A) the surrogate is required to record with his decree a summary statement of the account as the same shall have been finally settled and allowed by him, which is to be referred to and taken as part of the' final decree. This state- ment is made in the surrogate's minutes, setting forth in separate items the total assets which originally came into the hands of the executor or administrator on his assuming the duties of the trust, the increase or decrease thereof, if any, the disbursements for necessary expenses of the administration, the payments made of the debts due by the estate, the sums applied to the discharge of legacies or distributed among those entitled in distribution, and the balance remaining in the hands of the executor or administrator. At the foot of this summary the sentence statute of 1848 does not deprive a husband, mamed^evious to 1848, of the right to re- duce into possession the personal property of his wife not reduced into possession previously to the passing of those statutes. igg) See aide, p. 404. {h). See ante, pp. 26-7. FORM OF THE SURROGATE'S DECREE. 543 is pronounced, declaring the accounts of ttie executor or administrator finally settled, and allowed according to the statement. (For form of the final decree, see Appendix, No. 74.) The decree for distribution is made out separately, and is generally of greater length.(/i) The preliminary proceedings in the case are usu- ally stated in substance at the commencement of the decree, and the proper allegations are there inserted to show jurisdiction in the surro- gate. The return of the order or citation, and the appearances of those who attend the accounting, 'whether in person or by attorney, or proc- tor, or by general or special guardian, are there recited. The facts of the service of the citation upon absentees, either personally or construc- tively by publication, and their default in not appearing, although, as was stated, not strictly matters within' the immediate cognizance of the surrogate, are next set forth. If there has been a reference to an audi- tor, it should be so stated in the decree, and the substance of his report should be given, and its confirmation or modification should be recited. The surrogate's determinations as to the rights of creditors, the con- struction and legality of the bequests, and the title and claims of lega- tees, whether special, general, or residuary, and as to the title of any person claiming as widow or next of kin, should be fully and clearly expressed. The sum apportioned to each individual, or directed to be reserved or deposited to meet claims not yet due, or not decided, or to be invested for the benefit of minors, should be distinctly specified in dollars and cents. The consent of parties to the transfer or assignment of property or securities remaining in the hands of the executor or ad- ministrator should be stated. If there has been an appraisement there- of, the same, as has been already mentioned, may properly be stated ; and the particular articles or securities to be transferred or assigned to each person should be designated. The mandatory parts of the decree will order the executor or administrator to pay over, reserve or invest moneys, or to transfer or assign property or securities according to the apportionment determined upon. With respect to the costs of the accounting, the general principle to be adopted from the cases is the just one, that executors are entitled to their costs in settling their accounts so far as they are not in fault, and bound to pay costs, as to such inquiries in the action or proceeding as were caused by their breach of trust.(z) If the party contesting the account subjects the accounting party to useless expense by unfound- ed objections, he may be properly charged with such costs person- ally-(y) It has heretofore been seen(^) that the surrogate is not authorized to decree the payment of costs out of the estate of the decedent in the hands of his personal representatives, to the exclusion of their commis- sions for receiving and paying out moneys, if the amount in their hands (h) In the court of the surrogate of the county of New York, it is now the practice to em- body in a single decree the settlement and distribution. Such a decree will unite all the par- ticulars above specified for two several decrees for those purposes! (For form of such decree, see .Appendix, No. 74 ) (») Eay agt. Van Eook, 9 How. Prac. Rep. 4,21 ; Griffiih v. Beecher, 10 Barb. S. 0. Ren 432. ^ (j) Gardner Y. Gardner, 1 Paige, 112, 115; WestervellY. Gregg, 1 Barb. Ch. Eep. 469 (*) Ante, p. 493. 544 ENFOEOING THE SURROGATE'S DECREE. is nof sufficient to pay both. If it is a proper case to charge them witi the costs of the adverse party upon the proceedings, there should be a decree against them directly and personally for the payment of such costs.(Q If the accounting has taken place, and has been conducted through- out and concluded, at the instance of a single party, without bringing in other persons in interest, the decree will merely decide as to his rights ; and, if it be in his favor, order payment to him of the sum ad- judged due. If such party be a creditor -v^ho has obtained a judgment against the executor or administrator, whether after a trial at law upon the merits or otherwise, or if there be, any such creditor among the par- ties to an accounting, where all the persons in interest have been called in to attend, the decree will designate the amount applicable to sucli judgment ; and if requested, an order willbe made which may be em- bodied in the decree, that an execution issue on such judgment. Such execution will, agreeably to what was stated at a preceding page,(m) direct the money to be levied of the goods, &c., of the testator or intes- tate in the hands of the executor or administrator. A remedy in nearly all conceivable cases more effectual may be had, as will presently ap- pear, by proceedings under the surrogate's decree for the payment of the money. (For forms of decrees upon accounting, see Appendix, No. 74.) The decree for payment or distribution may be drawn up by the successful party, or, where there has been a final settlement of the ac- counts, by the executor or administrator. It is frequently, however, prepared at the surrogate's office. If it be drawn by a party, it should be settled in conformity with the rules and practice of the Supreme Court on the settlement of a decree. Of Enforcing the Surrogate's Decree^ The enforcing of the decree of the surrogate remains to be consid- ered. ■ * An action at law upon the decree may be brought against the execu- tor or administrator by any party, to compel payment of any sum of money thereby adjudged due to him. A complaint may be filed by the distributees, to compel the executor or administrator to distribute the estate of the decedent according to the sentence or decree of the surrogate, made upon a final accounting be- fore him.(n) Proceedings, however, before the surrogate, to compel the perform- ance of the decree, afford a very speedy and effective remedy. If the decree direct the executor or administrator to transfer or de- liver any specified articles, or to assign any particular securities belong- ing to the estate, and which have been proved to be in his hands, his neglect or refusal to comply with such directions will be a contempt, and his obedience may be compelled by attachment, or his bond may {I) Salsey v. Van Amringe, 6 Paige, 12, (m) Ante, p. 339. (rs) Stiles y. Bwcji, 5 Paige, 132. ENFORCING THE SURROGATE'S DECREE. 545 - be prosecuted under the 19tli section, 2 R. S. 116, presently to be stated at large. The following sections of the statutes provide for enforcing decrees of surrogates for the payment of money. Sec. 19. Whenever an executor or administrator shall refuse or omit to perform any decree, made against him by a surrogate having juris- diction, for rendering an account, or upon a final settlement, or for the payment of a debt, legacy or distributive share, such surrogate may cause the bond of such executor or administrator to be prosecuted, and shall apply the moneys collected thereon in satisfaction of such decree, in the same manner as the same ought to have been applied by such executor or administrator.(o) Sec. 63. After any decree is made by a surrogate for payment of money by an executor or administrator, or guardian, on application, he shall make out a certificate, stating the names of the parties against and in favor of whom the decree is made, with the trade, profession or oc- cupation of the parties respectively, in their places of residence, in which he shall state the amount of debt and costs directed to be paid by such decree.(^) Sec. 64. On such certificate being filed with the clerk of any county, the same shall be entered and docketed on the books now required by law to be provided and kept for the purpose of docketing judgments,, the transcripts or certificates of which shall be filed Avith such clerk, and shall thenceforth be a lien on all the lands, tenements, real estate and chattels real, of every person against whom such decree shall be entered, situate in the county in which said surrogate's certificate may be filed ; and execution shall be issued thereon in the same manner as though the same was a judgment recovered in the Court of Common Pleas [now except in the city and county of New York, the county court(5')] of said county, (r) Sec. 65. If such execution be issued and returned unsatisfied, the surrogate shall, on application, assign the bond given by such execu- tor, administrator or guardian, to the person in whose favor such de cree is made, for the purpose of being prosecuted.(s) It may be proper to remind the reader, that the foregoing sections of the statutes, and the means now to be spoken of for enforcing the decrees of the surrogate, extend to decrees made under the 18th sec- tion, 2 R. S. 116, authorizing the surrogate to decree payments in the eases there mentioned. The above section, numbered 19, authorizes the surrogate to cause the bond of an executor or administrator to be prosecuted, if he refuse or omit to perform any decree made against him, upon a final settle- ment, or for the payment of a debt, legacy or distributive share. The above section, numbered 63, directs, that after a decree for payment of (o) 2E. S. 116; 4th ed, 300.. (p) S. li. 1837, 535 ; 2 E. S. (4tll ed.) 421, sec. 17. (g) See Constitution, art. 14, seo..l2. See, also, the act " in relation to the judiciary," Laws of 1847, cha^. 280, article 4th, see. 36, p. 330; Code of Procedure, sees. 29, 30. Thesugges- tion of this msertion is- made, however, not without some misgivings. The section seems- to be omitted in the last (4th) edition of the Revised Statutes.. See 2d vol. p., 421, n. (r) S. L. 1837, 535; Amend. S. L. 1844, 91. (|) S. L. 1837, 535 ; 2 R. S. (4th ed.) 421, sec. 18. 35 ►546 ENFORCING THE SURROGATE'S DECREE. money against an executor or administrator, the surrogate shall, on ap- plication, make out a certificate, stating certain particulars in such sec- tion specified. By the next section, numbered 64, the certificate ou being filed with the clerk of any county, and entered and docketed by him, becomes a lien upon the land of an executor or administrator and an execution may be issued thereon, in the same manner as though the same was a judgment recovered in the Court of Common Pleas of said county. ' And the next section, numbered 65, provides, that if such execution be issued, and returned unsatisfied, the surrogate shall, on application, assign the bond given by such executor or administrator to the person in whose favor the decree was made, for the purpose of being prosecuted. The sections respecting the issuing of the execution on the decree do not seem to afiect the operation of the 19th section, in cases of de- crees for the payment of money. The party may probably take his remedy to enforce such a decree under either provision. If he resort to the 19th section, he must obtain an order of the surrogate for the prose- cution of the bond, upon evidence satisfactory to the surrogate that there has been either a refusal or an omission to perform the decree. The bond is prosecuted under the direction of the surrogate, and he applies and pays over the moneys collected thereon, in satisfaction of the de- gree. To sustain an action upon an administrator's bond put in suit for the benefit of a creditor or other claimant, it is necessary to show a,deoree of the surrogate for the payment of the debt or claim, and the refusal or neglect of the administrator to comply with such decree, as well as the order of the surrogate, directing the prosecution of the bond.(() The statute, however, does not require the service on the executor or administrator of a copy of the decree, or a citation to appear and show cause why an order for the prosecution of the bond of the execu- tor or administrator should not be made, previous to the making of any Such order. If it is made to appear satisfactorily to the surrogate, that there has been either a refusal or an omission .to perform the decree, he is authorized to order the prosecution of the bond without any previous service of a copy of the decree, or of a summons on the executor or ad- ministrator to show cause. In the case of The People v. Jiowhnd,{u) the order proved on the trial recited, that the petition of P. N., one of the heirs, duly verified, on which the order was founded, set forth a service on the administratrix of a copy of the decree, and a demand by the petitioner of the sum decreed to be paid to him, and her refusal to pay. This, it was held, was sufficient evidence of a refusal to perform the decree, and authorized the surrogate to make an order for the prosecution of the bond of the administratrix. "A demand," it was said, " previous to the commencement of the suit, of the money directed by the decree to be paid, was not necessary." " The statute," it was added, " does not make such demand a condition precedent to the right to sue the bond of the administratrix. Without any proof of a demand, the surrogate had authority to make an order for the («) The People v. Barnes, 12 "Wend. 492. lu) 5 Barb. Sup. Ct. Rep. 449. ENFORCING TEE SURROGATE'S DECREE. 547 prosecution of the bond. He was only to be satisfied that there had been either a refusal or an omission to perform the decree." Since the law of 1837, however, it is proper to state, recourse has seldom been had to the 19th section, to enforce decrees for the payment of money ; the proceedings authorized by the above sections of that law having been deemed more effectual for the purpose. A party having obtained a decree against an executor or administra- tor for the payment of money, in case of non-payment, always applies for and procures a certificate under the above 63d section, and thus coerces payment. The application should be in writing, and, on grant- ing the same, an entry of the issuing of the certificate may properly be made in the surrogate's minutes. (For form of the certificate, see Appendix, No. 75.) After having filed his certificate, the party is governed by the same rules, in respect to the issuing and return of his execution, which ap- ply to executions on judgments in the county court, or in the Court of Common Pleas of the city and county of New York. The execution may issue immediately upon filing the transcript. The 64th section (amendment of 1844) provides, that the " execution shall be issued on the certificate, in the same manner as though the same was a judgment recovered in the Court of Common Pleas of said eounty." This does not go to the form of the process ; the execution should recite the facts truly. It should state the filing of the certificate ■of the surrogate's decree and the docket, and then command the sheriff to levy the money.('y) The decree is a lien on the lands of the executor or administrator, after the filing of the certificate, and the entering and docketing on the books of the county clerk ; and the execution should direct the money to be levied of the property of the executor or administrator, and not of the property of the- testator or intestate.(v) The 66th section provides, that if the execution be issued and re- turned unsatisfied, the surrogate shall, on application, assign the exe- cutor's or administrator's bond to the person in whose favor the decree has been made, for the purpose of being prosecuted. A transcript of the docket of the certificate, and a certified copy of the execution, and of the sheriQ"s return, must be furnished to the surrogate, as proof that the proceedings of the party have been regular, and that the execution has been returned unsatisfied. An order for the assignment of the bond should be entered in the surrogate's minutes. (For form, see Ap- pendix, No. 76.) The surrogate's order constitutes the assignment of the bond contemplated by the statute. The surrogate is not a party to the bond, and, in the nature of things, cannot execute an assignment as ah obligee. He commonly acts by order, and this order, by its terms, " assigns" the bond " for the purpose of being prosecuted." This is, in substance and effect, the only assignment contemplated by the statute.(w) The direction in the section, that the surrogate assign the bond, is probably not to be construed to require him to part with the custody of (v) Davies v. Skidmere, 5 Hill, 504. ■^) BaggoU v. BovJger, 2 Duer, 110. 548 ENFORCING THE SUREOGATE'S DECREE. the instrument. That must remain in his possession for safe keeping • as there may, perhaps, be other or future claims to be enforced under it. Notwithstanding the assignment, the surrogate retains the custody of the instrument, for the common benefit of all persons having claims against the estate. The assignment contemplated by the statute is in fact, only the grant of a permission or authority to prosecute the bond. There is not any objection to the action being brought in the name of the party who has obtained the decree of the surrogate against the executor or administrator. It is a useless proceeding to bring the ac- tion in the name of " The People on the relation of" such party ; whether sued in the name of the party for whose benefit it is ordered to be prosecuted, or in the name of the people, the same facts are to be stated, the same number of separate suits may be had, and the conse- quences are the same in either case to the sureties. The common law rule, that an action on a bond must be brought in the name of the obligee, whoever may be the owner, is abrogated by the Code. It must now be brought " in the name of the real party in lnterest."(a;) The person in whose favor the decree of the surrogate has been ren- dered against the executor or administrator, is the real and only party in interest prosecuting the action. The Code says that he may sue in his own name.(xx) , , A party recovering upon the bond, will have judgment only for the amount decreed in his favor. Several persons, in whose favor decrees for payment may have been made, may doubtless join in one suit. These sections plainly apply to all decrees for the payment of money. A creditor, legatee, or a person entitled in distribution, who has ob- tained a decree against the executor or administrator, under the 18th section, 2 E. S. 116, authorizing the surrogate to decree payment, against the executor or administrator of debts, after the expiration of six months, and of legacies and distributive shares, after the expiration of a year from the time of the granting of the letters, may obviously enforce such decree by the proceedings above described, under the 19tn section, 2 R. S. 116, or by issuing an execution,, and pursuing the rem- edy provided by the above sections of the acts of 1837 and 1844. It is apparent that these sections, in nearly all oases, supersede the necessity of issuing an execution upon a judgment recovered against an executor or administrator. When such j,udgment has been ob- tained, after a trial at law upon the merits, and at an early period of the administration, there may be an advantage in immediately prose- cuting the remedy, by execution thereon, against the assets in the hands of the executor or administrator. But a creditor who has recovered his judgment, otherwise than after a trial upon the merits, or after such trial, when a sufheient time has elapsed to authorize the surrogate to decree payment of the debt,, will find his most effectual and satisfactory remedy under the sections which have now been considered. There can hardly be a case in which an execution against the executor or administrator personally will not prove at least (k) -Code, sec. 3; 2 R. S. 4T6, title 5, chapi 8, part 3 ; Code, sec. 471. i^x) Baggott r. Boulger, 2 Duer, 170-1. ENIOECING THE SURROGATE'S DECREE. 549 equally as beneficial as one against the assets of the deceased alone in his hands.(y) The separate consideration of the subjects of the rendering and settling of the accounts of executors and administrators, and the en- forcing performance of the decrees of the surrogate against them, is thus concluded. The rendering and settling of the accounts of an executor or ad- ministrator whose authority has ceased, or has been revoked or super- seded, may be compelled, and must be conducted in the same manner, and has the like effect in all respects, as in the case of a settlement at the instance of a creditor.(j/y) Such accounting will be hereafter more particularly considered, in connection with the proceedings on the re- moval of an executor or administratoi' from his of&ce, and the revoca- tion of his letters. When letters of collection are superseded, and the collector is cited to account, he may be compelled to deliver to the party succeeding to the administration of the estate, all the property of the deceased in his hands ; and it is competent for the surrogate, on the accounting, to pass upon any claim of the collector to property belonging to the de-- ceased at the time of his death, Of which the collector acquired title during the period of his collectorship. But where the collector claims title to certain leasehold estate of the deceased, by virtue of a lease from the owner of the fee, made prior to his appointment as collector, the surrogate has not jurisdiction on the accounting of the collector to try the validity of a title thus acquired, before the fiduciary relations of the collector with the estate commenced. (a) It is convenient in this place to present some observations upon the jurisdiction of the courts of equity over the executor or administra- tor, with respect to the administration of the goods and effects of the deceased. "An executor or administrator is liable, in his representative charac- ter, to all equitable demands, with regard to personal property,. which existed against the deceased at the time of his death. " Executors and administrators are, in almost every respect, con- sidered in courts of equity, as trustees. Upon this principle, those courts exercise a jurisdiction over them, in the administration of assets, by compelling them, in the due execution of their trust, to apply the property to the payment of debts and legacies, and the surplus, ac- cording to the will, or in case of intestacy, according to the Statute of Distributions. " Hence, a court of equity will, entertain a bill for a personal legacy ; or for the distribution of an intestate^s personal estate : and will compel an executor or administrator, in the same manner as it does an express trustee, to discover and set forth an account of the assets, and of his application of them." (a) (y) For directions as to the mode of issuing an execution against the assets of the dece- dent, in the hands of the executor or administrator, see ante, p. 339, Code, see. 289, Ohnsied. agt. Vredenburgh, 10 How. Pr. Rep. 215. iyy) See 2 R. S. 95, sees. 68, 69. {z) Gottsberger v. Smith, 2 Bradf. Sur. Rep. 86. (a) Wma on Exrs. VlVl, and cases cited. 550 ENFORCING THE SURROGATE'S DECREE. In CarowY. Mowatt^iP) the Vice-OJiancellor says, "under our pres- ent system, a surrogate possesses more enlarged powers than formerly : but i am not aware of anything which lessens the jurisdiction of this couit. In the exercise of its powers, there is certainly a competency of inquiring into any alleged devastavit by an executor or administrator and also the right to bring all persons before it who may be interested in the question. The forms of proceeding and the practice of tlie court are well adapted to the purposes of such an inquiry ; and, while a decree can be made to reach the property and persons of all who may be liable, the relative equities of such parties will be adjusted and. enforced." In Rogers v. King,{c) the Chancellor says, "the surrogate has con- current jurisdiction with this court, to call an executor or administra- tor to account. And if the same party who files a bill in this court against such executor or administrator, subsequently cites him to ac- count before the surrogate, the pendency of the suit here, for the same object, ought to be allowed by the surrogate as a valid objection to the proceeding there, in the nature of a plea in abatement. And "where, in a suit properly instituted in this court, by any other credi- tor, legatee, or distributee of the estate, a decree for an account has been entered, for the benefit of all the creditors and othet persons in- terested in the estate, such decree may be set up as a bar to any pro- ceeding for an account before the surrogate. And this court, upon a proper application, would grant an injunction, as a matter of course, to stay any creditors or others from proceeding before the surrogate, and to compel them to come in and establish their claims under the decree here."(cc) Where, to determine the liability_^of parties, it is necessary to re- quire the accounts of several estates, it would seem that the Court of Chancery alone has jurisdiction.(c?) The Court of Chancery had jurisdiction to compel a foreign execu- tor or administrator to account for the trust funds which he received abroad and brought with him into this state ; and that, too, without taking out letters of administration on the estate of the decedent here. And upon a bill filed against such foreign executor or administrator, if he is about to depart and go beyond the bounds of the state, he may be arrested upon a ne exeat and held to equitable bail, as in other cases.(e) In a suit here, however, against a foreign executor or administrator, for assets received in the country where he was appointed and brought into this state, the nature and extent ,of his liability will depend upon the laws of the state or country where he derived his authority to ad- minister the assets of the decedent. And the assets must be applied in the payment of debts, or be distributed among the next of kin, accord- (6) 2 Bdw. Oh. Rep. 64. (c) 8 Paige, 211. {cc) Moore v. Prior, 2 Totmg and Colb. Rep. S15 ; Paacton v. Dmghss, 8 Ves. 520; Peny V. Phelps, 10 Idem. 39 ; Clark v. Ormmd, Jacob's Rep. 122. (d) Foster y. Wilber, 1 Paige, 537. (e) McMmara t. I>wyer, 1 Paige, 239. But see Brown V. Brown, 1 Barb. Oh. Rep. 189- AUTHORITY OF THE EXECUTOR OR ADMINISTRATOR, ETC. 551 ing to the law of that country, and wMcli would be applicable to tlie case if he had been called to account there.(ee) A bill in Chancery ought not to be filed for a legacy ; application should be made to the surrogate.(/) The appellate jurisdiction of the Supreme Court over cases arising in the Surrogate's Court will hereafter, as was before intimated, form the subject of a separate branch of this work. CHAPTER XIII. OF THE AUTHORITY OF THE EXECUTOR OR ADMINISTRATOR OVER THE REAL ESTATE OF THE DECEASED, AND OF SALBS OF SUCH REAL ES- TATE, WHETHER TOLUNTARY OR COMPULSORY, FOR THE PAYMENT OF THE DEBTS OP THE DECEASED. The general rule has been stated in a preceding page of this work,(a) that " as the heir hath not to deal with the goods and chat- tels of the deceased, no more hath the executor to do with the lands, tenements and hereditaments." But it. was at the same time intimated, that where the personal property of the decedent is insufiicient for the payment of his debts, the executor or administrator may, by proper proceedings according to law, acquire dominion over the real estate for the purpose of disposing of the same and applying the proceeds to the discharge of such indebtedness. By the express provisions- of the will, also, the executor is often vested with a power over the real estate. The first case now to be considered, is that of a sale, or other disposi- tion of the real estate of the decedent, by the executor or administrator, for the payment of debts, where the decedent died intestate, or did not authorize such disposition by his will. Sales by an executor, pursuant to a power given by the wUl, will in the next place be treated of. By the hard and xmjust rule of the common law, land descended or devised was not liable to simple contract debts of the ancestor or testa- tor ; nor was the heir bound even by a specialty, unless he was ex- pressly named. But, in Kew York, the rule has been altered ; and, by a provision in the act of 1786, and continued in the subsequent re- visions, heirs are rendered liable for the debts of the ancestor by simple contract, as well as by specialty, and whether specially named or not, to the extent of the assets descended, on condition that the personal estate of the ancestor shall be insufficient, and shall have been previ- ously exhausted. (aa) This condition does not apply when the debt is, by the will of the ancestor, charged expressly and exclusively upon the real estate descended to the heirs, or directed to be paid out of the real estate descended, before resorting to the personal estate.(6) It is- (ee) See note (e), p. 550. (/) Soyt V. Silton, 2 Edw. Ch. Rep. 202. (a) Ante, p. 236. See Griffith v. Beecher, 10 Barb. S. 0. 432. {aa) See Ferguson v. Broome, 1 Bradf. Surr. Rep. 10. (J) 2 R. S. 452 ; ith ed. 694, sees. 32, 33, 34, 35. 552 B-BAL ESTATE NOT BOUND BY JUDGMENT. further provided, that whenever any real estate, subject to a mortgage executed by the ancestor or testator, shall descend to the heirs, or pass to a devisee, the mortgage shall be satisfied out of such estate, without resorting to the executor or administrator, unless there be an express direction in the will to the contrary.(c) The general rule is that the personal estate is the primary fund for the discharge of the debts, and is to be first applied and exhausted, even to the payment of debts with which the real estate is charged by mortgage ; for the mortgage is understood to be a merely collateral se- curity for the personal obligation. The order of marshalling assets in equity towards the payment of debts is to apply : 1. The general per- sonal estate. 2. Estates specifically devised for the payment of debts. 3. Estates descended. 4. Estates devised, though generally charged with the payment of debts. It requires express words, or the manifest intent of a testator, to disturb this order. On the other hand, there is a material distinction between debts originally contracted by the testa- tor or intestate, and those contracted by another ; and, therefore, if a person purchases an estate subject to a mortgage, and dies, his personal estate, as between him and his personal representatives, shall not be applied to the exoneration of the land, unless there be strong and de- cided proof that, in taking the incumbered estate, he meant to take upon himself the mortgage debt as a personal debt of his own. . The last provision above mentioned, from the Eevised Statutes, was an,, al- teration of the antecedent rule, and makes a mortgage debt fall prima- rily upon the real estate.((i) By sec. 12, of the article of the Eevised Statutes relative to suits by and against ' executors and administrators, the real estate which be- longed to any deceased person shall not be bound, or in any way af- fected, by any judgment against his executors or administrators, nor shall it be liable to be sold by virtue of any execution issued upon such judgment, (e) If the personal estate of a testator or intestate be insufiieient to pay his debts, the executor or administrator, as the case may be, is author- ized to mortgage, lease, or sell so much of the real estate as shall be requisite to pay the debts. This is done under the direction of the Surrogate's Court ; and the title so conveyed to the purchaser will vest in him all the right and interest which belonged to the testator or in- testate at the time of his death. The proceedings, in such cases, are specially detailed in the Eevised Statutes, and the amendments thereto, with cautious provisions to guard against irregularity and abuse. The interest of the deceased in contracts for the purchase of land may equally be sold for the like purposes ; and provision is made for the specific performance of the contracts, under the direction of the surro- gate, upon terms safe and just to all parties. The sale of the real estate of the testator or intestate, by the executor or administrator, under the •orders of the Surrogate's Court, will, it is supposed,(/) apply to the (c) 1 Rev. Stats. 749 ; 4th ed. (2d vol.) 156, sec. 4 ; 4 Kent's Commentaries, 420. See tanie, p. 303. * (d) 4 Kent's Conun. 421. (e) 2 E. S. 449; 4th ed. 691. r PETITION TO MORTGAGE, LEASE OR SELL. 653 estate left by the debtor at his decease, and avoid all mesne convey- ances since his death.(5') ' , A proper division of the first branch above stated of the present sub- ject, is into sales or other dispositions of the real estate of the deceased, made— first, pursuant to an order of the surrogate, granted on the ap- plication of the executor or administrator; second, pursuant to the like order granted on the application of a creditor of the deceased. The proceedings on obtaining the order for the sale are entirely regulated by statute. Such regulations are contained in the 4th title of the 6th chapter of the 2d part of the Eevised Statu tes,(/!.) entitled " of the pow- ers and duties of executors and administrators, in relation to the sale and disposition of the real estate of their testator or intestate," and in certain provisions of the laws of 1837, 1843 and 1850. Of the Proceedings hy an Executor or Administrator to Procure an Order to Mortgage, Lease or Sell the Real Estate of his Testator or Intestate for the Payment of his Debts. By the first section of the above mentioned title of the Eevised Statutes, (t) after the executors or administrators of any deceased per- son shall have made and filed an inventory according to law, if they discover the personal estate of their testator or intestate to be insufiicient to pay his debts, they may, at any time within three years after the granting of their letters testamentary or of administration, apply to the ■ surrogate for authority to mortgage, lease or sell so much of the real estate of their testator or intestate, as shall be necessary to pay such debts. The 40th section of the " act concerning the proof of wills, executors and -administrators, guardians and wards, and Surrogates' Courts," passed 16th May, 1837,(y) enacts that executors or administrators may apply to the surrogate, pursuant to the above mentioned title of the Eevised Statutes, for authority to mortgage, lease or sell the real estate of their testator or intestate, and for the sale of the interest of such tes- tator or intestate, in any land held under a contract for the purchase thereof, whenever they shall discover that the personal estate of the testator or intestate is insufiicient to pay his debts ; subject, however to the provisions of the first section of said title, as the same has been amended. Of the Petition to Mortgage, Lease or Sell. The proceeding to obtain the order for the sale is by petition to the surrogate. The statements and particulars required to be set forth in such petition, are specially prescribed by the second section of the above if) See Mathews v. Mathews, 2 Edw. Oh. Rep. 565. (g) See 4 Kent's Comm. 438. \h) 2 R. S. 99 ; 4th ed. 284. («) 2 R. S. 100 ; .4th ed. 285, amend, act of 1830, chap. 320, sec. 22. (;■) S. L. 1837, 531; 2 R. S. (4th ed.) 285. 554 PETITION TO MORTGAGE, LEASE OR SELL. mentioned title of the Eevised Statutes, and tlie petition must be under oath. That section is as follows : Sec. 2. Tlfe petition shall set forth : Ij The amount of the personal property which has come to the hands of the executor or administrator. 2. The application thereof. 3. The debts outstanding against the testator or intestate, as far as the same can be ascertained. ' 4. A description of all the real estate of which the testator or intes- tate died seised, with the value of the respectiye portions or lots, and whether occupied or not, and if occupied, the names of the occupants; and 5. The names and ages of the devisees, if any, and of the heirs of the deceased. And such petition shall be verified by the oath of the party present- ing the same. All of the executors or administrators should join in an appUcation to the surrogate, for an order to sell the real estate of the decedent for the payment of debts. And an order for sale will be erroneons in allowing the petitioning executors or administrators, to make a sale without the consent and concurrence of all, especially when no reason is stated in the petition for not making the one or those not joining in the petition a party or parties to the proceedings. (fc) In the opinion of the surrogate in the case of " the real estate of Isaac Lawrence, deceased, "(/c/c) the question will be found considered whether debts of the deceased, secured by mortgage of his real estate, ought to be set forth in the petition, under the third subdivision of this section. The conclusion to which the surrogate arrived was, that such debts should not be included until the remedy of the creditor by fore- closure of the mortgage has been exhausted, leaving a balance of debt unpaid, 'and thereby ascertained, for which the personal estate, if suffi- cient, would be liable. The 5th subdivision, where it requires the ages of the devisees and heirs to be stated, is to be understood as requiring that those of the de- visees or heirs who may be of full age, should be distinguished from those who may be minors. In order to meet the provisions of the 38tli and 39th sections of the law of 1837, presently to be quoted, those of the minors who have a general guardian should be distinguished from those who have not, and those over fourteen years of age from those under that age. The . executor or administrator may also include in his petition, besides the statements specified in this section, any state- ments or explanations which may be important to a due understanding of the situation of the estate, or of the manner in which he has con- ducted the administration ; and if he have knowledge that the requisite moneys can be raised by a mortgage or lease of the real estate, he should state the fact in his petition. The prayer of the petition will be for authority to mortgage, lease or sell so much of the real estate of the de- ceased as shall be necessary to pay the debts. (For form of the peti- tion, see Appendix, No. 77.) (k) Fitch V. WitbecJe, 2 Barb. Ch. Rep. 161. (kk) Law of Surrogates, (1st ed.,) Appendix, p. xii. APPOINTMENT OF GUARDIANS OF MINOES INTERESTED. 555 Before tlie Eevised Statutes, the statutory provision for the sale of tlie real estate of a deceased person for the payment of his debts, required that the executor or administrator should make a just and true account of the personal estate and debts of the deceased, as far as he could dis- cover the same, and deliver the said account to the judge of the Court of Probates, or to the proper surrogate, and request his aid in the prem- ises.(Z) There is no difference in principle between that provision and the present one. Under that provision it has been held, that a surro- gate obtains jurisdiction in reference to the sale of the real estate of a testator or intestate, by the presentation of a petition by executors or administrators praying his aid, and by the exhibition of an account of the personal estate and debts of the deceased.(m.) And under the present statute it has been expressly held, that upon an application by an administrator, after the filing of an inventory for the sale oi'the real estate of an intestate for the payment of his debts, the surrogate gains jurisdiction by the presentation of the petition, as against all parties regularly brought into court.(mm) Of the Appointment of Guardians of Minors interested. By the 8d section of the above mentioned title of the Eevised Sta- tutes, if it shall appear to the surrogate by such petition, or by other competent evidence, that any of the devisees or heirs of the deceased are minors, the surrogate shall immediately, and before any other pro- ceeding, appoint some disinterested freeholder guardian of such mi- nors, for the sole purpose of appearing for them, and taking care of their interest in the proceedings. By the 4th section, if any such minors are within the county of such surrogate, they shall be personally served with notice, ten days pre- viously, of the intention to apply for the appointment of a guardian, that they may be heard in the selection of such guardian. By the 38th section of the law of 1837,(n) where any minor men- tioned in the above 3d section, shall have a general guardian in the county of the surrogate, such general guardian shall appear and take care of the interest of the minor, and no special guardian shall be ap- pointed in the premises. And by the 39th section of the same act, the notice required by the above 4th section may be a notice of five days ; and where the minor is under fourteen years of age, the notice shall be served on the person in whose custody he may be, or with whom he may live, or on such relative as the surrogate shall designate, instead of the service required by said fourth section. Where the minor is under the age of fourteen, and has no general guardian, and it is proposed to serve the notice of the intention to ap- ply for the appointment of a guardian for the minor on a relative, an order designating such relative upon whom the notice may be served, should be made and entered in the surrogate's minutes. (For form of the notice of intention, see Appendix, No. 78.) On the day named in (0 1 R. L. 1813, 450, sec. 23. (m) Jackson v. Irmn, 10 Wen. 441. (mm) Fojrrington y. King, 1 Bradf. Surr, Rep. 182. (n) S. I. ISST, 531 ; 2 R. S. (4th ed.) 286, sec. 6. 556 APPOINTMENT OF GUARDIANS OF MINORS INTERESTED. tlie notice, on proof of the personal service of the notice on the minor or on the person in whose custody he may be, or with whom he may live, or on the relative designated, as the case may be ; and after hear- ing the minor, if he appear, or any person who may appear in his be- half, the appointment of the guardian is to be made. He is appointed by an order duly entered in the minutes. (For form, see Appendix No. 79.) The order should be served on the person appointed, and after that he will represent the minor in the proceedings. The law previous to the Eevised Statutes ;^ovided, "that in all cases where a petition shall be presented by any executors or adminis- trators, for the sale of the whole or part of the real estate of their testa- tor or intestate, and one or more of the devisees or heirs of such testa- tor or intestate shall be infants, the judge of the Court of Probates, or the surrogate to whom the same may be presented, shall appoint some discreet and substantial freeholder a guardian of such infant or infants, for the sole purpose of appearing for, and taking care of the interest of such infants in the proceedings therein."(o) In a case(p) where real estate had been sold under a surrogate's order, and it did not appear that a guardian had been appointed for the plaintiffs, who were heirs of the estate, and infants at the time of the proceedings before the surrogate, it was held that the sale was void as to them ; and Mr. Justice Bronson said — • " The surrogate undoubtedly acquired jurisdiction oi the subject mat- ter, on the presentation of the petition and account ; but that was not enough. It was also necessary that he should acquire jurisdiction over the persons to be affected by the sale. It is a cardinal principle in the administration of justice, that no man can be condemned or divested of his right, until he has had the opportunity of being heard. He must, either by serving process, publishing notice, appointing a guardian, or in some other way, be brought into court ; and if judgment is rendered against him before that is done, the proceeding w'ill be as utterly void, as though the court had undertaken to act where the subject matter was not within its cognizance."(^p ) Andhe afterwards proceeds, " It is not only a general principle in the, law, that courts must acquire juris- diction over the persons to be affected by their judgments, but in rela- tion to these sales the statute has specially pointed out the means, and imposed the duty, of bringing the proper parties before the court." And, after citing the above section of the Eevised Laws of 1813," he continues — ■" This mode of bringing in the infant heirs was not pur- sued, and the plaintiffs have had no day in court. Without it they cannot be deprived of their inheritance." And he concludes — " The rule that there must be jurisdiction of the person, as well as the subject matter, has been steadily upheld by the courts ; and it cannot he re- laxed, -without opening a door to the greatest injustice and oppres- sion.'Xg') (o) 1 R. L. 1813, 454, sec. 31. (p) Bloom V. Bwrdick, 1 Hill. 139. (jip) Borden TT. Fitch, 15 John. R. 121; Bigelowy. Stearns, 19 lb. 39; MiUs y. Martm, W lb. 1. (q) See, also, Schneider v. McFarland, 2 Corns. 469 ; Corwin v. Merritt, 3 Barb. Sup. Ct. Rep. 341. ORDER TO SHOW CAUSE. 557 Of the Order to Show Cause why Authority should not he given. By the 5tli section of the above mentioned title of the Eevised Sta- tutes, (gg) if upon such application to the surrogate, it shall appear that all the personal estate of the deceased, applicable to the payment of debts, has been applied to that purpose, and that there remain debts unpaid, for the satisfaction of -which a sale may be made under the pro- visions of this title, he shall make an order, directing all persons inter- ested in the estate to appear before him, at a time and place therein to be specified, not less than six weeks, and not more than ten weeks from the time of making such order, to show cause why authority should not be given to the executors or administrators applying therefor, to mortgage, lease, or sell so much of the real estate of their testator or in- testate, as shall be necessary to pay such debts. By the 41st section of the law of lb37,(r) however, it is provided, that the surrogate may, in his discretion, order such mortgage, lease or sale to be made, although the whole of the personal property of the de- ceased which has come to the hands of the executor or administrator, has not been applied to the payment of debts. But the surrogate, before making any such order, shall have satisfactory evidence that the executor or administrator has proceeded with reasonable diligence in converting the personal property of the deceased into money, and ap- plying the same to the payment of debts. This section is,, by necessary implication, a repeal of so much of the above 5th section of the Kevised Statutes as requires that, upon such application, it shall be made to appear to the surrogate, to au- thorize him to issue the order to show cause, that all the personal estate of the deceased, applicable to the payment of his debts, has been ap- plied to that purpose, and that there remain debts unpaid, for the sat- isfaction of which a sale may be made under the provisions of the title, because now no such facts need be shown even to entitle the executor or administrator to an order for sale. The reader is referred to the above-mentioned opinion of the surrogate(5) for a discussion as to the recitals requisite to be made in the order to show cause. (For form of the order, see Appendix, No. 80.) Of the Service and Publication of the Order to Show Cause. The 6th and 7th sections of the above mentioned title of the Eevised Statutes provide for the service and publication of the order to show cause. They are as follows : Sec. 6. Every such order to show cause shall be published for four weeks in a newspaper printed in the county, and a copy thereof shall be served personally, on every person in the occupation of the prem- ises of which a sale is desired, wherever the same may be situated and on the widow, and heirs and devisees of the deceased, residing in the county of the surrogate, at least fourteen days before the day therein appointed for showing cause.(i;) (gq) 2 R. S, 101, (4th ed.) 286. (r) S. L. 1837r 531 ; 2 R S. 102, sec. 18, 4th ed. 287-8, see. 19-, («) Law of Surrogates, {1st ed.,) Appendix, p. xii. [t) 2 R. S. 101 ; 4th ed. 286. See Comin y. Merriii, 3 Barb, S.. C R. 341. 558 HEARINa ON THE RETURN OF THE ORDER. Sec. 7. If STiek personal service cannot be made, or if such widow heirs or devisees do not reside in such county, but reside in the state' then a copy of such order may be served personally, forty days before the day of showing cause, or by publishing the same once in each week for four weeks in succession, in the state paper. If such heirs or devisees do not reside within this state, or cannot be found therein the order shall be published once in each week,, for six weeks suc- cessively, in the state paper, or a copy thereof may be personally served on them, at least forty days before the time appointed therein for show- ing cause. These sections are explicit in their provisions, and present no diffi- culties in practice. Of the Sea/ring on the Return of the Order to show Caxtse. By section 8, of the same title, the surrogate, at the time and place appointed in the order, and at such other times and places as the hear- ing shall be adjourned to, upon due proof of the service and publication a,bove required, shall proceed to hear and examine the allegations and proofs of the executors or administrators applying for such authority, and of all persons interested in the estate, who shall think proper to oppose the appliGation.(W) By section 9, the executors or administrators may be examined on oath, and witnesses may be produced and examined by either party ; and process to compel their attendance and testimony may be issued by the surrogate, in the same manner and with the like effect as in cases of proving wills before him. By section 10, on such hearing it shall be competent to any heir or devisee of the real estate in question, and to any person claiming under them, to show that the whole of the personal estate of the deceased has not been duly applied by the executors or administrators to the payment of his debts ; to contest the validity and legality of any debts, demands or claims, which may be represented as existing against the testator or intestate ; and to set up the Statute of Limitations in bar to such claims ; and the admission of any such claim so barred, by any executor or administrator, shall not be deemed to revive the same so as in any way to aflPect the real estate of the deceased. It is proper to observe that so much of this section as declares that it shall be competent to any heir or devisee of the real estate in ques- tion, and to any person claiming under them,* to show that the whole of the personal estate of the deceased has not been duly applied by the executors or administrators to the payment of his debts, is evi- dently repealed by the provision of the 41st section of the law of 1837, already quoted, authorizing the surrogate, in his discretion, to order a mortgage, lease or sale of the lands to be made, although the whole of the personal property of the deceased which has come to the hands of the executor or administrator, has not been applied to the payment of debts. It is, however, probably competent to the parties named, to show, under the 41st section, that the executor or administrator has (fi) 2 R. S. 101 ; 4th ed. 286. HEARING ON THE RETURN OP THE ORDER. 559 not proceeded 'witli reasonable diligence in converting tlie personal property of the deceased into money, and aplying tlie same to the pay- ment of debts. The objections of the heir or devisee, or person claiming under him, against the proceedings of the executor or administrator, or against the validity of any of the claims, should be stated in writing. The examination respectijag the validity of the claims will be conducted before the surrogate, according to the same principles which govern similar proceedings in the common law courts. Independently of the provisions of the above recited 10th section of the statute, it has always been held, that in a proceeding before the surrogate, to mortgage, lease or sell the real estate of a deceased person, the heirs or devisees may make the same defence to the claims sought to be established, as they could before any other tribunal. (m) By a clause of the 72d section of the law of 1837,(u) as amended by the act of the 18th April, 1843, (w) where a judgment has been recov- ered or decree obtained against an executor or administrator for any debt due from the deceased, and there are not suiScient assets in the hands of such executor or administrator to satisfy the same, the debt for which the judgment or decree was obtained, shall, notwithstanding the form of such judgment or decree, remain a debt against the estate of the deceased to the same extent as before, and to be established in the same manner as if no such judgment or decree had been obtained. Provided, that where such judgment or decree has been obtained upon a trial or hearing upon the merits, the same shall be frima facie evi- dence of such debt before the surrogate. Under this provision the record of the judgment, or an exemplified or sworn copy thereof, must be produced, in order that the surrogate, from an inspection thereof, may see that the existence of the debt was put in issue by the plead- ings, and was passed upon by the jury, so as to constitute a trial of the cause upon the merits, within the meaning of the statute. And before the surrogate is authorized to make any order for the mortgaging, leasing or sale of the real property of the decedent, he must be satisfied by legal proof that the debts, for the purpose of satisfying which the application is made, are justly due and owing from the testator or in- testate, as against the owners of the real estate.(a;) Even where a judgment has been obtained against an executor or administrator, and there was a trial or hearing upon the merits, the judgment, on an application to sell the real estate,' is, by the statute, only prima facie evidence of the debt. It does not change the nature or character of the debt. Where a judgment or decree, against the exe- cutor or administrator has been obtained, otherwise than after a trial or hearing upon the merits, the debt remains a debt against the estate, to be established as against the real estate in the same manner as if the («) Ferguson v. Broome, 1 Bradf. Surr. Rep. 10. (v) S. L. 1837, 536; 2 R. S. (4th ed.) 293-4. (w) S. L. 1843, 229; 2 R. S. (4th ed.) 293-4. (a) Baker v. Kmgslmd, 10 Paige, 368. For a. discussion as to the proofs of the debts necessary to be taken on the return of the order to show cause, see the opinion of the surro- gate "In the Matter of the real estate of Isaac Lawrence, deceased," above mentioned. Law of Surrogates, (1st ed.,) Appendix, p. xii.j 560 HEARING ON THE RETURN OF THE ORDER. j-udgment or decree had not been obtained. In tbe case of a judgment or decree obtained against the executor or administrator after a trial or hearing on the merits, the judgment or decree is prima facie evi- dence of the debt ; the requirement that the debt shall be established ia the same manner as if the judgment or decree had not been obtained is in the first instance, dispensed with, but the previous provision that the debt remains a debt against the estate to the samg extent as before re- mains in full force. The debt is established j)nma/aae by the' produc- tion of the record showing a trial or hearing on the merits, but then it is the debt which is established, and not the judgment. The heirs are not liable for the costs of the judgment.(z) The judgment is not the thing claimed ; it does not constitute the debt against the estate of the deceased; it is only evidence of the debt, the means provided by statute in a special case, of proving the debt. The only effect of the produc- tion of the record is to establish, prima facie, that at the date of the judgment a debt existed against the estate of the deceasedto the extent of the amount mentioned in the judgment. The record shows the character of the debt, whether it was a promissory note or otherwise ; it also liquidates the amount due on it, but, as against the heir, it does not change the debt into a judgment ; on the contrary, the same law which permits the record to be used as evidence, declares, in the same breath, that " notwithstanding the ybrm of such judgment," the debt for which it was obtained "shall remain a debt against the estate of the deceased to the same extent as before."(a) The operation of this construction upon the Statute of LimitationSj must, in many cases, materially affect the rights of parties. The heir has always had the right to set up the Statute of Limitations in bar to such claims, and the admission of the executor or administrator has not been deemed to revive, debts barred by the statute so as in any way to affect the real estate.(6) The privilege is expressly secured to the heir by the provisions of the above quoted 10th section of the statute.(c) If, then, by the recovery of a judgment against the executor or adminis- trator, the debt is converted from the form of a promise to that of a judgment, a twenty years' limitation would take the place of the limi- tation of six years. " This," says Mr. Surrogate Bradford, in Ferguson V. Broome,{d) " would be a great inroad upon the rights of those who are entitled to the real estate. It is quite enough," continues the learned surrogate, " to follow the statute in admitting the judgment as prima facie evidence of the debt. To make the debt substantially & judgment against the heirs or devisees, and to clothe it with all the attributes- of a judgment, instead of leaving it where it was, a simple contract debt against the estate of the deceased, would be a clear transgression of the very rule the Legislature has laid down, that the debt shall remain a debt to the same extent as before. * * * There is no difl&culty in iix- («) Wood V. Byingion, 2 Barb. Ch. Rep. 3S1,; Smford v. Cfranger, 12 Barb. S. 0. B. 392. (a) Ferguson v. Broome, 1 Bradf. Surr. R. 16 ; Sanford v. Granger, 12 Barb. S. 0. B. 392. (&) ifooers V. White, 6 Johns. Cb. Rep. 378. (c) See Renwich v. Bmwiclc, 1 Bradf. Surr. Rep. 234; Farrington \.. Mng, lb. 182; SW- more v. Romaine, 2 Bradf. Surr. Rep. 122. (d) 1 Bradf Surr. Rep. 10. HBAEING ON THE RETURN OF THE ORDER. 561 ing the time from whicli the statute begins to run. The rule is the same in the present instance as in other eases of simple contract debts. Accordingly, in the case quoted, where the creditor of the deceased obtained a judgment upon a simple contract debt against the adminis- trator, on the 30th December, 1841, and proceedings to procure an order to mortgage, lease or sell the real estate of the testator for. the payment of his debts were not commenced until the 28th March, 1848, the surrogate considered that the Statute of Limitation was a bar to the claim, and a valid ground of contest on the part of the heirs.(e) In Farringion v. Kmg,{f) in a proceeding before the surrogate to sell the real estate of the decedent for the payment of his debts, upon the question whether the debts claimed were barred by the Statute of Lim- itations, it was held, that the statute ceases running'on the institution of the proceedings or the return of the order to show cause. An application for the sale of real estate for the payment of debts is not, in a strict sense, an action. As the term of eighteen months after the death of a testator or intestate forms no part of the time limited by law for the commencement of an action against his executors or adminr istrators;(5') and, as an action for the debts of the deceased cannot be brought against his heirs or devisees within three years from the time of granting letters ;(/i) and proceedings to compel the sale of the real, estate for the payment of debts, cannot be instituted by a creditor until the executor or administrator has accounted ; and an account cannot ■ be compelled till the lapse of eighteen months after letters issued ;. the running of the statute is suspended as respects claims against the real estate of the decedent, for the period of such eighteen months after probate, during which, though the estate is represented, the statute for- bids proceedings on the part of a creditor to compel a sale of the real estate for the payment of the debts of the deceased.(t) Accordingly, where, on the decease of the testator, the Statute of Limitations had commenced to run against certain simple contract debts, and in conse- quence of a contest as to the probate, letters testamentary were not granted until five years after, and the six years from the creation of the debt expired after letters were issued, but before the creditors could compel an account, — It was held, that the claims were not barred by the Statute of Limitations.(y) Whete a creditor has sued the executors, and on their offer to per- mit a recovery for a certain sum, has taken judgment for that amount, the claim is liquidated, and he cannot recover a larger sum in a pro- ceeding to sell the real estate of the deceased for the payment of his debts. The personal estate is the primary fund for the payment of debts, and the measure of recovery against the realty cannot exceed that against the personalty, though it may be less.(^) (e) 1 Bradf. 20. If) 1 Bradf. Surr. Rep. 182. (ff) See ante, p. 315, 333. (h) See 2 R. S. 109 ; 4th ed. 294. (i) Skid/more v. Bomaim, 2 Bradf Surr. Rep. 122. See, aJso, Farnngion v. Mng, 1 Bradf. Surr. Rep. 182. (/) SMclmore v. Bomame, 2 Bradf Surr. Rep. 122. (i) lb. 36 562 ENTERING THE DEMANDS ADJUDQED TALID. In proceedings to sell the real estate for the payment of debts it 13 competent for the heirs or devisees to show that the personal estate has not been applied to the payment of the debts : but the sale maybe ordered by the surrogate, if he has satisfactory evidence that the exe- cutor or administrator has proceeded with reasonable dihgence in ma- king such application.(Z) However, it is discretionary with the surro- gate to refuse the order for the sale when the executor has personal prop- erty on hand undisposed of.(m) The surrogate, it seems, is not authorized to make an order for the sale of the real estate of a' decedent, for the mere purpose of paying the executors or administrators the amount of their claim for the expenses of administratioUj and where there are no. existing debts for which the devisees or heirs at law of the decedent are liable, in respect to the real estate which had come to them by devise or descent. The execu- tor or administrator should retain sufficient of the personal estate in his hands to pay the expenses of the administration. And an order will not be made on his application for the sale of the real estate of the de- cedent to pay such expenses, after the lapse of three years from the time of granting letters testamentary or of administration to him.(w) Nor does the statute authorize the surrogate to direct the sale of real estate of a deceased debtor, to pay costs which had not been awarded to the creditor, against the decedent, at the time of the death of the latter. (0) If a portion only of the heirs object to certain demands, and the "ob- jection is sustained, the entire claim must be rejected, and the surro- gate cannot reject only such part of the demand as would be the pro- portion falling on the share of the heirs objecting.(_29) By the 11th section of the above mentioned title of the Eevised Statutes, (g') if, upon such hearing, (the hearing before the surrogate upon the order to show cause,) any question of fact shall arise, which, in the opinion of the surrogate, cannot be satisfactorily determined without a trial by jury, he shall have authority to award a feigned issue, to be made up in such form as to present the question in dispute, and to order the same to be tried at the next Circuit Court to be held in such county. New trials may be granted therein by the Supreme Court, as in personal actions pending in that court. The final determi- nation of such issue shall be conclusive as to the facts therein contro- verted in the proceedings before the surrogate.(r) By the 72d section of the Code of Procedure, feigned issues are abol- ished ; and, instead thereof, in the cases where the power previously existed to order a feigned issue, or where a question of fact not put in issue by the pleadings is to be tried by a jury, an order for the trial may. be made, stating distinctly and plainly the question of fact to be tried; and such order shall be the only authority necessary for a trial. (!) Skidmore v. Somaine, 2 Bradf. Surr. Rep. 122, (m) Moore v. Moore, 14 Barb. S. C. R. 21. (n) Mtch v. Witbeck, 2 Barb. Ch. Rep. 161. (0) Wood V. Byington, 2 Barb. Ch. Rep. SSI. (p) Eenwkk v. Eenwick, 1 Bradf Surr. Rep. 234. (2) 2R. S. 102; 4th ed. 281 (rj See GampbeU v. Eeuwich, 2 Bradf. Surr. Rep. 80. ORDER TO MORTGAGE, LEASE OR SELL. 563 By the 12th section of the title, the costs of such issue shall be paid by the party failing, on the order of the surrogate, and such payment may be enforced by him in the same manner as other orders and decrees. Of entering the Demands adjudged valid. By the 13th section, the demands which the surrogate shall, upon such hearing, adjudge valid and subsisting against the estate of the de- ceased, or which shall have been determined to be valid, on the trial of such issue ; or which shall have been recovered against the execu- tors or administrators, by a judgment of a court of law upon a trial on the merits; shall be by him entered in a book of his proceedings, fully and at large ; and the vouchers supporting the same shall be filed in his office. (For form of the entry, see Appendix, No. 81.) "Where an order has been made for the sale of the real estate, and the surrogate has neglected to enter in his book the demands which, upon the hearing, he has adjudged to be valid and subsisting against the es- tate, the error can be corrected afterwards by directing such an entry nunc protunc.{s) Of the Order to Mortgage, Lease or Sell. By see. 14, the surrogate shall make no order for the mortgaging, leasing or sale of the real property of the deceased, until, upon due examination, he shall be satisfied : 1. That the executors or administrators making such application have fully complied with the preceding provisions of this title.- 2. That the debts, for the purpose of satisfying which the application is made, are justly due and owing; and that they are not secured by judgment or mortgage upon, or expressly charged on, the real estate of the deceased ; or, if such debts be secured by a mortgage or charge on a portion of such estate, then that the remedies of the creditor, by virtue of such mortgage or charge, have been exhausted. 3. That the personal estate of the deceased is insufficient for the pay- ment of such debts ; and that the whole of such estate, which could have been applied to the payment of the debts of the deceased, has been duly applied for that purpose. So much of the last subdivision of this section as requires that the surrogate should be satisfied that the whole of the personal estate, which could have been applied to the payment of the debts of the de- ceased, has been duly applied for that purpose, is clearly repealed by the 41st section of the law of 1837,(^) which, it is proper here to. repeat, declares that the surrogate may, in his discretion, order such mortgage, lease of sale to be made, although the whole of the personal property of the deceased which has come to the hands of the executor or admin- istrator has not been applied to the payment of debts. But the surro- gate, before making any sueh order,- shall have satisfactory evidence 's) Farringtoh v. King, 1 Bradf. Surr. Rep. 182. i) S. L. 1837, 531 ; 2 R. S. (4th ed.) 287-8. 564 DETERMININa PEIOEITIES, ETC. tliat the executor or administrator lias proceeded with reasonable dUi- gence in converting the personal property of the deceased into money, and applying the same to the payment of debts. Of determining whether Property shall he mortgaged, leased or sold. By the 15th section of the above mentioned title of the Eevised Statutes, the surrogate, when so satisfied relative to the matters speci- ' fied in the 14th section, except as to the application of the whole of the personal estate to the payment of the debts, and haAdng satisfactory . evidence, according to the 41st section of the law of 1837, shall, in the first place, inquire and ascertain whether sufficient moneys for the pay- ment of such debts can be raised, by mortgaging or leasing the real property of the deceased, or any part thereof; and if it shall appear that such moneys can be so raised, advantageously to the interest of such estate, he shall direct such mortgage or lease to be made for that purpose.(M) By sec. 16 of the same title, no such lease shall be for a longer time than until the youngest person interested in the real estate leased shall become twenty-one years of age.(i') By sec. 17, a lease or mortgage executed under the authority of the surrogate, as aforesaid, shall be as valid and effectual as if executed by the testator or intestate immediately previous to his death. It is for the heirs or devisees, or persons claiming under them, to show, if they think fit, that sufficient moneys for the payment of the debts can be raised by mortgaging or leasing the premises. The exec- , utor or administrator, however, may properly give such information as he may possess, to enable the surrogate to decide in which way the re- quisite sum shall be raised. A statement on this point, as has been suggested, may be embraced in the executor's or administrator's peti- tion at the commencement of the proceedings. If the surrogate decide that a sufficient sum for the payment of the debts can be raised by mortgage or lease, an order to that effect must be made and entered in his minutes. Such order should recite con- cisely, but distinctly, in detail, the previous proceedings in the matter and the observance of all the requirements of the statute, and should set forth the giving of the proper bond, conditioned for the faithful application of the moneys arising from such mortgage or lease, accord- ing to the provisions of the statute presently to be quoted. It should state that the surrogate has been satisfied, upon due examination, as to the matters specified in the 14th section, above quoted, of the Ee; vised Statutes, a,nd in the 41st section of the law of 1837, and that it has appeared that the requisite moneys can be raised by a mortgage or lease of the lands, as the case may be, and should direct the execu- tion of the proper instrument for the purpose. (For form of the order, see Appendix, No. 83.) The money raised by a mortgage or lease of the real estate is received and retained by the executor or administrator, or by the person ap- («) 2 E. S. 102 ; 4th ed. 281. (v) lb. THE ORDER FOR SALE. 565 pointed in his place, pursuant to the provisions of the statute presently to be quoted. , And the executor or administrator, or such person, ap- plies the money to the payment of the debts of the deceased, and is lia- ble to account for the same before the surrogate under another pro- vision of the statute, which also will presently be quoted. Of the Order for Sale. By the 18th section of the above mentioned title of the Revised Sta- tutes, if it shall appear to the surrogate that the moneys required can- not be raised by mortgage or lease, advantageously to the estate, he shall, from time to time, order a sale of so much of the real estate, whereof the testator or intestate died seised, as shall be sufficient to pay the debts which the surrogate shall have entered in his books, as valid and subsisting.(w) By section 19, if such real estate consist of houses or lots, or of a farm so situated that a part thereof cannot be sold without manifest preju- dice to the heirs or devisees, then the whole or a part thereof, although more than may be necessary to pay such debts, may be ordered to be sold ; and if a sale of the whole real estate shall appear necessary to pay such debts, it may be ordered accordingly. By section 20, the order shall specify the lands to be sold, and the surrogate may therein direct the order in which several tracts, lots or pieces shall be sold. If it appear that any part of such real estate has been devised, and not charged in such devise with the payment of debts, the surrogate shall order that the part descended to heirs be sold before that so devised ; and if it appear that any lands devised or descended have been sold by the heirs or devisees, then the lands remaining in their hands unsold, shall be ordered to be first sold ; and in no case shall land devised, expressly charged with the payment of debts, be sold under any order of a surrogate. After hearing the parties and passing upon the debts claimed, the surrogate, if satisfied that all the provisions of the statute have been complied with, may, from time to time, order a sale of so much of the real estate as shall be necessary to pay the debts ; and if the first sale ■ordered has fallen through, or has produced an insufficient amount, he may make other orders, from time to time, till all the debts are paid, and all the real estate necessary for that purpose is exhausted.(a;) If the administrator make a voluntary application for the sale of the real estate, all the parties be brought in, a hearing had, the debts proved, and an order of sale made, the administrator cannot, at his op- tion, discontinue the proceeding, but the creditors may insist upon its further prosecution, and apply, as may be necessary, for reviving or speeding the proceedings.(a;) Where an heir has conveyed a part of the real estate descended to him, leaving the debts of the decedent unpaid, it seems the surrogate may direct the lands still belonging to the heir to be first sold for the (w) 2 R. S. 103 ; 4tli ed. 288. (a;) FarringUm v. King, 1 Brad£ Surr. Rep. ]82. 566 SECURITIES TO BE GITBN, ETC. payment of sucli debts, so as to protect the equitable rights of the pur- chaser from such heir. (2/) The order for sale should contain recitals as to the previous proceed- ings, (z) the observance of the provisions of the statute, and the proof required by the 14th section of the Eevised Statutes and the 41st sec- tion of the law of 1837, similar to those above directed for the order to mortgage or lease,(a) and should also set forth that it had been made to appear to the surrogate, that the moneys required could not be raised by mortgage or lease advantageously to the estate, and the giving of the proper bond for the payment or delivery to the surrogate of the pro- ceeds of the sale, pursuant to the provisions of the statute presently to be stated. It should specify the lands to be sold, and include the ne- cessary directions as to the sale of a part or the whole of the real estate of the decedent, and as to the order in which the different portions shall be sold, prescribed by the above quoted 19th and 20th sections of the statute. It may also direct the credit to be given on the sale, pursuant to the 28th section of the statute hereafter to be quoted. If the creditors wish to have the property sold on credit, the most proper course is to suggest it to the surrogate, at the time of making the order, so that he may inquire into the situation of the property, and the claims of the various creditors, and give the proper directions.(6) And it is submit- ted, that a day may properly be appointed by the order with reference to the time requisite for making the sale, on which the executor or ad- ministrator shall bring in his report of the sale, to be examined by the surrogate and confirmed or vacated by him, pursuant to a subsequent provision of the statute, which will presently appear, and that the mat- ter should be adjourned to that day, so that the parties in interest may be present if they choose at such examination. (For form of the order, see Appendix, No. 85.) Of the Security to he given hy an Executor or Administrator^i or a person ap- pointed in his place, on obtaining an Order to Mortgage, Lease or Sell. The following sections of the statute provide for security to be taken of the executor or administrator by the surrogate, before granting an order for the mortgaging or leasing, or for the sale of the real estate, and also for the appointment of a proper person to execute the mort- •gage or lease, or to make the sale, in case the executor or administrator neglect or refuse to give the required security, and for taking security of such person. Sec. 21. Before granting any order for the mortgaging or leasing any real estate, the surrogate shall require from the executor or administra- tor applying for the same, a bond to the people of this state, with suf- ficient sureties, to be approved by the surrogate, in a penalty double (y) Eddy v. Tra/oer, 6 Paige, 521. (z) lnAtldns\. Kinnm, (20^611.251,) Cowen, J., says, " The recital of the previous pro- ceedings was also very well ; and in practice, we believe, usually makes a part of the order of sale." (a) For a discussion as to the recitals which should be made in the order for sale, see the above mentioned opinion of the surrogate, in the " Matter of the real estate of Isaac Lawrence. Law of Surrogates, (1st ed.,) Appendix, p. xii. (6) Maples v. Sowe, 3. Barb. Ch. Eep. (ill. THE NOTICE OF SALE. 567 the amount to be raised by such mortgage Or lease, conditioned for the faithful application of the moneys arising from such mortgage or lease to the payment of the debts established before the surrogate, on grant- ing the order, and for the accounting for such moneys, whenever re- quired by such surrogate, or by any court of competent authority.(c) Sec. 22. Before granting any order for the sale of any real estate,. the surrogate shall require a bond in like manner, and with sureties as above directed, in a penalty double the value of the real estate ordered to be sold, conditioned that such executors or administrators will pay all the moneys arising from such sale, after deducting the expenses thereof, and will deliver all securities taken by them on such sale, to the, surro- gate, within twenty days after the same shall have been received and taken by them.(d) Sec. 23. In case of the refusal or neglect of the executors or admin- istrators, applying for such order, to execute, within a reasonable time, any bond required by the two last sections, the surrogate shall appoint a disinterested freeholder to execute such mortgage or lease, or to make such sales, who shall execute a bond similar in all respects to that re- quired of the executors or administrators, in whose place he shall be appointed ; and in making such appointment, he shall give preference to any person who shall have been nominated by the creditors of the deceased. , Sec. 24. Upon executing and filing with the surrogate such bond, the surrogate, shall order the mortgage, lease or sale to be made by the person so appointed, who shall possess all the power and authority by this title conferred on executors and administrators, in relation to the mortgaging, leasing, or sale of the real estate of the deceased, mentioned in the order of the surrogate, and shall, in like manner, be liable to ac- count for his proceedings, and may, in the same manner, be compelled to satisfy debts, to pay over moneys, and to deliver securities. (For forms of the bouds un(Jer these provisions, see Appendix, Nos. 82 and 84.) In case the executor or administrator neglect or refuse to execute the required bond, and the creditors of the deceased agree upon a per- son to be nominated to execute the mortgage or lease, or to make the sale, they should state such agreement, and nominate such person to the surrogate, in writing. An order for the appointment of the person should be made and entered in the surrogate's minutes. Of the Notice of Sale. By section 25, whenever a sale is ordered, notice of the time and place of holding the same should be posted for six weeks at three of the most public places in the town or ward where the sale shall be had, and shall be published in a newspaper, if there be one printed in the same county, and if there be none, then in the state paper, for six weeks successively ; in which notice the lands and tenements to be (c) 2 R. S. 103 ; 4th ed. 288. (d) lb. 104 ; 4th ed. 288. 568 VACATING OR CONFIRMING SALE. sold shall be described witli common certainty, by setting foTtt the number of the lots, and the name or number of the township or towns in which they are situated. If the premises cannot be so described they shall be described in some other appropriate manner ; and in all cases the improvements thereon, if any, shall be stated.(e) These directions should be strictly followed, and the terms and conditions of the sale may also properly be included in the notice, al- though this is not expressly required by the statute.(/) Regulations of the Sale. Upon judicial sales of real estate, it is the duty of the officer conduct- ing them, to sell the property in such parcels as will be best calculated to produce the highest aggregate price. A sale made by an adminis- trator under the order of a surrogate is within this rule, and he may sell in subdivisions, although the order of sale describes the property as one parcel.(g') By section 26, such sales shall be in the county where the premises are situated, at public vendue, between the hour of nine in the morn- ing and the setting'of the sun of the same day.(A) By section 27, the executors or administrators making the sale, and the guardians of any mii^or heirs of the deceased, shall not, directly or indirectly, purchase or be interested in the purchase of any part of the real estate so sold. All sales made contrary to the provisions of this section shall be void ; but this section shall not prohibit any such purchase by a guardian, for the benefit of his ward.(«) By section 28, on such sales, the executors or administrators inay give such length of credit, not exceeding three years, for not more than three-fourths of the purchase money, as shall seem best calculated to produce the highest piice, and shall have been directed, or shall be approved, by the suri-ogate ; and shall secure the moneys for which •credit is given, by a bond of the purchaser, and by a mortgage on the premises sold. "Where the surrogate's order for the sale does not direct a sale upon ■credit, the administrator should sell for cash ; unless all the creditors consent to a sale upon credit.(/c) Of Vacating or Confirming Sale. The following sections of the statute provide for vacating, and also for confirming the sale. Sec. 29. The executors or administrators shall immediately make a return of their proceedings, upon such order of sale, to the surrogate (e) 2 E. S. 104; 4th ed. 289. (/) See, " Jra the Matter of the real estate of Isaac Lawrence, deceased," Law of Surrogates, (iBt ed.,) Appendix, xii. {g) See Delaplaine v. Lamirence, 3 Corns. 301. (A) 2 R. S. 104; 4th ed. 289. (j) 2 R. S. 104; 4th ed. 289. The revisers aooompanied their origmal report of this Beotion •with the foUcvring note : " The general principle, that a trustee shaU not purchase the trust property, expended so as to make the purchase absolutely void." 3 R. & or. S. App. 647,. See Bosiwick v, Atkms, 3 Coins. 53; Ganger v. King, 11 Barb. S. C. R. 356. (k) Mapks V. Howe, 3 Barb. Ch. Kep. 611. TAOATING OB CONFIRMING SAIB. 569 granting the same, wlio shall examine the proceedings, and may also examine such executors or administrators, or any other person on oath, touching the same ; and if he shall be of opinion that the pro- ceedings were unfair, or that the sum bid is disproportionate to the value, and that a sum exceeding such bid, at least ten per cent., ex- clusive of the expenses of a new sale, may be obtained, he shall vacate such sale, and direct that another be had ; of which notice shall be given, tod the sale shall be in all respects conducted as the sale on the first order. (Z) Sec. 30. If it shall appear to the surrogate that such sale was- legally made and fairly conducted, and that the sum bid was not_ dispropor- tionate to the value of the property sold, or, if disproportionate, that a greater sum as above specified cannot be obtained,* he shall make an order confirming such sale, and directing conveyances to be exe- cuted. (For form of the executor's or administrator's report of the sale, see Appendix, No. 86.) When jurisdiction h&s been obtained of the subject matter, and of the parties in interest, and the surrogate has made an order for the sale of the property, it will be presumed that he had sufficient evidence of the facts necessary to be ascertained, before making such judicial deter- mination. And after jurisdiction is obtained, errors or irregularities in its exercise cannot be impeached collaterally, but only on appeal.(m) The statute gives no direction as to the notification of any person interested in the estate, or in the confirmation of the sale, to attend the surrogate upon the return of the proceedings by the executor or ad- ministrator. , But it is evident that the Legislature contemplated that there might be litigation before the surrogate upon the question as to the propriety of a confirmation.(n) And if the proceeding has been duly adjourned by the order of sale, from the day of such order to the day of the coming in of the report of the sale, the heirs and de- visees, and other parties then before the surrogate, will doubtless be held to have had sufficient notice of the proceedings for confirmation. Perhaps, in a proceeding of this kind before the surrogate, where the purchaser or any other party wishes to have notice, so as to enable him to attend and litigate the question as to the confirmation, he should file a caveat, and request that he may be summoned or notified of the time and place of hearing.(o) Where the surrogate ordered the sale as to a part of the lots sold to be confirmed, and as to another part to be vacated, it was held that the purchaser of some of the lots as to which the sale was vacated, had such an interest in the confirmation of the sale of the lots bid off by himself at the sale, as to entitle him to appeal from that order : and such purchaser not having iqdividually appeared before the surrogate on the return of the report of the sale, but the administrator, who had Eromised to endeavor to procure the confirmation of the sale, which e did endeavor to do in good faith, having appeared, it was held that {I) 2 E. S. 105 ; 4th ed. 289. (m) Fa/rringUm v. King, 1 BradE Suit. Rep. 182. (n) Delaplaine-v.Lg/wrence, 10 Paige, 604. \o) 10 Paige, 604. 570 CONVEYANCES OF THE REAL ESTATE. tlie appearance of the administrator in betalf of himself and the pur- chaser, was sufficient, (p) On the hearing for the confirmation of the report, any of the parties in interest may object to the regularity or sui&cienoy of any of the proceedings of the executor or administrator, either in obtaining the order for the sale or on such sale.(2') It is competent for the surrogate, where different parcels have been sold, to confirm the sale in part and vaca,te it in part. And if, in his opinion, any one parcel was' sold at a price disproportionate to its value, and will produce ten per cent, more on a resale, it is his duty to order a resale of that parcel, although the other parcels were sold for their full value.(?") If, however, it does not, in his opinion, appear that an advance of ten per cent, can he ob- tained, and th^ sale has been legally made and fairly conducted, the surrogate is imperatively required to confirm the sale.(7-r) (For form of order confirming the sale and directing the execution of a convey- ance, see Appendix, No. 87.) If one of the purchasers at the sale has assigned his purchase after the sale, but before a conveyance, an order must be obtained from the surrogate directing the conveyance to he made to the assignee. Of the Conveyances of the Real Estate. By sec. 31, such conveyances shall thereupon be executed to the purchaser, by the executors or administrators, or by the person so ap- pointed by the surrogate to make the sale. They shall contain and set forth at large the ori^nal order authorizing a sale, and the order confirming the same, and directing the conveyances ; and they shall be deemed to convey all the estate, right, and interest in the premises of the testator or intestate, at the time of his death, free and discharged from all claim for dower of the widow of such testator or intestate.(s) (For form of the deed of conveyance, see Appendix, ISTo. 88.) In a case(5s) under the statute, 1 E. L. by K. and E., 1801, p. 324, sec. 21, which requires that the sale shall be made and conveyances for the same executed by the executors, &c., applying for the order ; " and the conveyances for the same shall set forth suoh order at large; and shall be valid, &c., against the heirs and devisees of such testator or intestate, and all claiming by, from or under them ;" where one of the deeds recited simply that the surrogate had, by his order of such a date, directed such a parcel of fifty acres to be sold, describing it as in the order, and the other -was still more defective, it was held, upon the ground of the defective recital, that the deeds were inoperative at law ; and the court said, "where certain steps are authorized by statute, in derogation of the common law, by which the title of one is to be di- vested and transferred to another, every f equisite having the semblance {p) 10 Paige, 604 (j) See surrogate's opininion, " In the Matter of (he real' estate of Isaac Lamrenee," Law of Surrogates, (1st ed.,) Appendix, p. xii. (r) Dekuplmne v. Lawrence, 3 Corns. 301. (rr) Sorton v. Morton, 2 Bradf. Surr. Rep. 200. ' (s) 2 E. S. 105 ; 4th ed. 290. (ss) Aikim v. Kinnan, 20 Wen. 241. DISPOSITION OF THE PROCEEDS OF THE SALE. 571 of benefit to tlie former must be strictly complied witb. Tbe statute demanding tbe order at large, we cannot say it is complied with so long as tbe deed omits to recite tbe wbole, as it stands upon record. "We do not say it sbould be literally recited ; but it is impossible to say that a document is set forth at large, unless every part is substan- tially presented. That, we think, is tbe least that the statute calls for. The conveyances from the executor were, therefore, void, and must continue so, unless they shall be rectified on a proper application to tbe Chancellor." It seems that a surrogate has not tbe power to compel the purchaser of the real estate of the decedent, at a sale made by the executors or administrators under an order of such surrogate, to take the conveyance of the property, and to pay to the executors or administrators the pur- chase money bid upon the sale.(i) By the 32d section of tbe above mentioned title of tbe Eevised Stat- utes, every sale and conveyance made pursuant to the provisions of this title shall be subject to all charges by judgment, mortgage or oth- erwise, upon the lands so sold, existing at the time of the death of tbe testator or intestate.(M) Of the Disposition of the Proceeds of the Sale. By sec. 33, if tbe proceeds arising from tbe mortgage, lease or sale of any lands, made pursuant to the order of any surrogate, as herein di- rected, which shall have been paid over to such surrogate, shall be sufficient to pay all tbe debts established before the surrogate, on grant- ing the order, the heirs and devisees of the testator or intestate, and all the remaininff lands of which he died seised, shall be exonerated from all claim or charge by reason of such debts so established. If such proceeds shall not be sufficient for that purpose, the heirs and devisees, and the remaining land, shall be exonerated from such debts in pro- portion to the sum raised and paid over. By sec. 34, the surrogate who shall grant any order for the mort- gage, lease or sale of real estate; shall possess tbe same power to cite and compel any executor or administrator to account for the proceeds of the sale, mortgage or lease of any real estate, and to compel tbe pay- ment of debts, and tbe payment of moneys arising from such sales, and the delivery of securities taken thereon, as if such real estate had been originally personal estate, in the hands of such executor or adminis- trator, (d) The directions given in a preceding portion of this work(t«) for com- pelling the executor or administrator to account and to make payments, are to be folIoVed in proceedings under this last provision. By sec. 36, where tbe whole or any part of the real estate of any de- •ceased person shall have been sold by virtue of an order of a surro- gate, the moneys arising &om such sale shall be brought into the office (t) Butler V. Emmett, 8 Paige, 12. (m) 2 R. S. 105 ; 4th ed. 290. («) lb. 106; 4th ed. 291. ^ iw) Ants, oh. 12. 572 PAYMENT OF THE EXPENSES OF THE SALE, ETC. of the surrogate granting such order, for the purpose of distribution, and shall be by him retained for that purpose.(a;) Of tlie, Payment of the Expenses of the Sale and the Satisfaction of the Widow's Dower. The folio-wing sections of the statute provide, for the payment of the expenses of the sale for the satisfaction of the dower of the Avidow out of the proceeds of the sale, for the distribution of the balance among the creditors of the deceased, and for the publication of notice of such distribution. See. 36. The surrogate shall, in the first place, pay out of the said moneys the charges and expenses of the sale. He shall next satisfy any claim of dower which the widow of the testator or intestate may have upon the lands so sold, by the payment of such sum in gross as shall be deemed, upon the principles of law applicable to anmiities, a reasonable satisfaction for such claim, if the widow shall consent to accept such sum in lieu of her dower, by an instrument under seal duly acknowledged or proved, in the same manner as deeds entitled to be recorded. (2/) Sec. 37. If, after reasonable notice for that purpose, no such consent be given, then the surrogate shall set apart one-third of the purchase money to satisfy such claim, and shall cause the same to be invested in permanent securities, on annual interest, in his name of of&ce, which interest shall be paid to such claimant during life. Sec. 38. If, after the deductions aforesaid from the proceeds of such sale, there shall not be sufficient remaining to pay all the debts of the testator or intestate, then the balance of such proceeds shall be divided by the surrogate among the creditors, in proportion to their respective debts, without giving any. preference to bonds or other specialties, or to any demands on account of any suit being brought thereon. Sec. 39. Every person to whom the deceased shall have been in- debted, on a valuable consideration, for any sum of money not due at the time of such distribution, shall receive his proportion with other creditors, after deducting a rebate of legal interest upon the sum dis- tributed, for the time unexpired of such credit.(2) Sec. 40. Before any such distribution shall be made, notice of the time and place of making the same shall be published for six weeks successively, in a newspaper printed in the county where the surrogate resides. He may also publish such notice in such other newspaper as he may deem most likely to give notice to the creditors. (For form of the notice to the widow respecting the satisfaction of her claim of dower under the 37th section, see Appendix, No. 89.) These statutes relating to the sale of the real estate of deceased per- sons, under a surrogate's order for the payment of debts, do not author' ize the sale of the widow's estate in dower, where dower has been as- signed to her. Before assignment the widow has no estate in the lands (sc) 2 R. S. 106 ; 4th ed. 291 (y) lb. " (z) 2 R. S. lOT, 4th ed. 292. NOTICE OF THE DISTRIBUTION OF THE PROCEEDS. 573 of her husband. Until then her interest is a mere chose in action, or claim, which is extinguished by a sale under a surrogate's order. But after assignment the seisin of the heir is defeated ab initio, and the dow- ress is in of the seisin of her husband as of the time when, that seisin was first acquired or held during the coverture.(a) Where the widow's dower in the real estate of her deceased husband has been assigned to her previous to the application to the surrogate for a sale of the estate of the decedent, for the payment of his debts, the part assigned to the widow for dower should be sold subject to her life es- tate therein as tenant in dower. Thus where the real estate to be sold under a surrogate's order consisted of an entire farm in which the widow's dower had been assigned, it was considered that the same should be sold together in one parcel, subject to the widow's life estate, as tenant in dower, in the part of the premises which had been assigned to her for her dower, (aa) The gross sum to be deemed a reasonable satisfaction of the widow's claim of dower, is estimated in similar proceedings in courts of equity, according to the present value of an annuity of six per cent, on the principal sum during the probable life of such widow, according to the Portsmouth or Northampton tables.(6) A table corresponding with the Northampton tables, for the purpose of such a calculation, together with an example of the mode of calculating the gross sum due to the widow, wUl be found in the Appendix, No. 90. (For a form of the widow's release of dower in the lands sold, see Ap- pendix, No. 91.) Of the Notice of the Distribution of the Proceeds and of such Distrihution. An order for the publication of the notice of distribution in the news- papers should be made and entered in the surrogate's minutes. (For form of the order and notice, see Appendix,,No! 92.) By sec. 41, at the time and place appointed, and at such other times and places as the surrogate shall appoint for that purpose, he shall proceed to ascertain the valid and subsisting debts against the testator or intestate, and shall hear the allegations and proofs of the claimants of such debts, and of the executors, administrators, heirs, devisees or any other person interested in the estate of the deceased, or in the application of the proceeds of such sale.(iJ) By sec. 42, any debts which shall- have been established by the sur- rogate, on the application for the sale, shall not again be controverted, unless upon the discovery of some new evidence to impeach the same, and then only, upon due notice given to the claimant. Any other debts or demands which shall be presented, and which were not so established, shall be proved to the satisfaction of the surrogate, and the same proceedings inay be had to ascertain the same, as are herein- before prescribed upon the hearing, on the application of any execu- tor or administrator, for authority to sell the real estate. (a) Lawrence v. MiUer, 2 Corns. 245. (aa) Maples v. 3owe, S Barb. Oh. Rep. 611. (6) Rules of Supreme Court, R. 15. (Pb) 2 R. S. 107 ; 4th ed, 292. 574 NOTICE OF THE DISTRIBtTTIOK 05 THE PROCEEDS. • The proceedings, on ascertaining and settling the claims entitled to share in the distribution, will be similar in all respects to the proceed- ings described at a preceding page of the present subject, on the al- lowance o£ the claims against the estate on the return of the order to show cause ; and the claims must be established according to the principles there laid down. An entry of the distribution is made in the surrogate's minutes. (For form, see Appendix, No. 93.) A judgment creditor of the deceased, or a mortgagee, it seems, is not entitled to come in and prove his debt before the surrogate, for the purpose of obtaining a distributive share of the proceeds of the real estate, upon which his judgment or mortgage was a lien 'or incum- brance. " The thirty-second section of the title of the Kevised Statutes, under which the proceedings were instituted," says the Chancellor, in Butler V. Emmet and others,(c) " declares in express terms, that every sale and conveyance made pursuant to the provisions of that title, shall be subject to all charges by judgment, mortgage, or otherwise, upon the lands so sold, existing at the time of the death of the testator or in- testate. And it seems to follow, as a necessary consequence, that the mortgagee or judgment creditor is not entitled to any part of the avails of the estate thus sold, to sat sfy the incumbrance, which still remains upon the land in the hands of the purchaser. Where the whole real estate to which the incumbrance extends is sold, there perhaps may he an arrangement made between the personal representative of the dece- dent and the bidders at the sale under, the surrogate's order, thatthe incumbrance shall be paid off out of the amount of the bid ; so as to give the purchaser a clear title. But in that case, the amount of the incumbrance to be paid must be ascertained and paid out of the pur- chase money by the seller ; and the surplus only should be reported to the surrogate, and paid over to him, as the actual proceeds of the sale to be distributed among the creditors. Suclj. an arrangement being a mere matter of convenience which the lien creditor has no right to insist upon, I do not see how he can, consistently with this section of the statute, either apply ,to the surrogate to compel a sale, or come in and prove his debt before the surrogate, for the purpose of having it paid out of the proceeds of the real estate on which it is a lien." The remedy of the judgment creditor, to obtain satisfaction of his debt out of the proceeds of the real estate of the decedent, before the Code, was to revive his judgment by scire facias, and to sell the real estate upon execution : since the Code he must take proceedings under that statute.(c^). The remedy of the mortgagee is to sell the mortgaged prem- ises under a foreclosure, and if the proceeds be not sufficient for the payment of his debt, then if the result has been ascertained at the time of the distribution of the proceeds of the sale of the real estate under the surrogate's order, he may come in for his proportionable share on such distribution. And it is not always sufficient for the creditor to show that his judg- ment is not a lien en the lands sold to entitle Mm to a share in this distribution. If the creditor have other security on the other lands of (c) 8 Paige, 12. (d) lb. DISPOSITION OF THE PROCEEDS. 575 the testator, and not on those sold, the creditor must first exhaust his legal remedies on those lands.(e) Upon an application to sell the real estate of the deceased for the payment of his debts, equitable as well as legal demands may, however, be proved and established against the estate. Such equitable claim being an equitable lien on a certain portion of the real estate, is not an ex- press charge upon the property, and not being secured by mortgage or judgment, may be directed to be paid out of the proceeds of the real estate when sold under the order of the surrogate for the payment of the debts of the deceased.(ee) And it is competent on the sale of real estate, for the payment of the debts of the deceased, or on the distribu- tion of the proceeds, to offer any equitable defence against the claims of a party alleging to be a creditor ; and the heirs are not restricted to a legal defence.(/) A claim for the mesne profits of lands occupied by the intestate may be allowed out of the proceeds of his real estate, sold for the payment ofhisdebts.(/) The distinction as to legal and equitable assets, no longer prevails as to the proceeds of the sale of realty, but such proceeds, when the real estate is sold by order of the surrogate, are distributed in the same man- ner to creditors as the personal estate. The only effective remedy pro- vided by statute for the specific application of the realty to the dis- charge of debts, is vested in the Surrogate's Court, (gr) Of the Disposition of the Surplus. By the 43d section of the above mentioned title of the Revised Sta- tutes, if after payment of debts and expenses, there be any overplus of the proceeds of the sale, the same shall be distributed among the heirs and devisees of the testator or intestate, or the persons claiming under them, in proportion to their respective rights in the premises sold.(^^) By the 44th section, any securities which shall have been taken on the sale of any real estate, shall be delivered to the surrogate, and kept in his ofiice. He shall collect the moneys due thereon from time to time, and shall distribute and apply the same among the creditors, whose debts were established before him, in the same proportion as herein di- rected, respecting the moneys arising on such sale. By sec. 45, the securities taken by any surrogate on the investment of a principal sum at annual interest, to satisfy a dower claim, shall be kept in his ofiice as part of his ofiicial papers, and be delivered to his successor, and it shall be the duty of the surrogate to collect sucl; in- terest, and pay the same to the person entitled thereto. (e) In the Matter of the real estate of Stephen Price, deceased, Law of Surrogates Appendix XK. For -an able discussion as to the right of judgment creditors of the deceased to pay- ments out of the proceeds of the sale of the real estate, in a case having soma peculiar fea- tures, the reader -is referred to the opinion of the late learned surrogate of the county of New York, Hon. Charles MoVeao, deceased, " In the Matter of the real estate of Stephen Price, deceased," referred to, to be found in the Appendix to the first edition of this work (ee) Eenwick v. Bemaick, 1 Bradf. Surr. Rep. 234. {/) Campbell v. Benwick, 2 Bradf. Surr. Rep. 80. (#) 2 BradE 80. (?) Bloodgood v. Bmen, 2 Bradf. Surr. Rep. 8. {gg) 2 R. S. 107 ; 4th ed. 292. See Sears y. Mack's Assignees, 2 Bradf. Sufr. Rep. 394. 576 PROCEEDINGS BY A CEEDITOE. •By sec. 46, after the death of the person entitled to such interest the principal sum so secured shall be collected, and after deducting the costs and charges of the surrogate, in the management, collection and distribution thereof, the residue shall be distributed among the creditors of the deceased, who shall have established their debts previous to the original investment of such principal sum, in the same manner andwith the like effect as herein provided for the distribution of the proceeds of the sale of real estate. (A) By sec. 47, if there be any surplus remaining after such distribution it shall be divided among the heirs and devisees of the testator, or the heirs of the intestate, or the persons claiming under them, in proportion to their respective rights in the premises sold. By an act of the Legislature of the year 1850, it is provided as fol- lows: Sec. 1. "Whenever any portion of the surplus moneys brought into the surrogate's of&ce as the proceeds of the sale of real estate, shall be- long to a minor, or belong to any person who has a temporary interest in the said money, and the reversionary interest belongs to another per- son, the Surrogate's Court shall make such order for the investment thereof, and for the payment of the interest and of the principal therof, as the Supreme Court is authorized or required by law to make in anal- agous cases. Sec. 2. The investments that shall be made by virtue of this act shall bp secured by Inortgage upon unincumbered real estate within this state, which shall be worth at least double the amount of such investment exclusive of buildings thereon, in the name of office of the surrogate, and he shall keep the securities as he now is required by law to keep other securities belonging to his ofSce, and the interest and principal shall be distributed by and under the direction of the surrogate, in con- formity to the order under which the investment shall bff made, and to the person or persons entitled thereto.(AA)' Of Proceedings hy a Creditor to obtain an Order for the Mortgage^ Lease or Sale of the Real Estate of a Deceased Person, for the Payment of his Debts, The obtaining of the order of the surrogate to mortgage, lease or sell the real estate of the deceased for the payment of his debts, where the proceedings are taken by a creditor of the deceased, comes now to be treated of. By the 72d section of the law of 18B7,{i) as amended by the act of the 18th of April, 1843,(y) and further amended by the act of the 21st Sep- tember, 184:7, {k) if, after the rendering of and accounting by an execu- tor or administrator to a surrogate, as is provided in chapter six, part second, title third of the Eevised Statutes, it shall appear va&\ there are not sufficient assets to pay the debts of the deceased, the surrogate upon (h) 2 R. S. 108. (hh) S. L. 1850, oh. 160 ; 2 R. S. (ith ed.) 293. ffl S. L. 1S31, 536 ; 2 R. S. (4th ed.) 293-4. U) 8. L. 1843, 228 ; 2 R S. (4th ed.) 293-4. (k) S. L. 184:1, (2d volume,) p. 41T. PROCEEDINGS BY A CREDITOR. 577 the application of any creditor, made at any time after the granting of letters testamentary or of administration, shall grant an order for such^ executor or administrator to show cause why he should not be re- quired to mortgage, lease or sell the real estate of the deceased, for the payment of his debts ; but he shall not assign for cause why he should not be ordered to sell real estate, that the time within which he is allowed to sell the same has expired ; and whe/e a judgment has been recovered or decree obtained against an executor or administrator, for' any debt due from the deceased, and there are not sufficient assets in the hands of such executor or administrator to satisfy the same, the debt for which the judgment or decree was obtained, shall, notwith- standing the form of such judgment or decree, remain a debt agamst the estate of the deceased to the same extent as before, and to be estab- lished in the same manner as if no such judgment or decree had been obtained ; provided that where such judgment or decree has been ob- tained upon a trial or hearing upon the merits, the same shall be -prima facie evidence of such debt before the surrogate.(M) By this provision of the statute, a creditor, in order to enforce the payment of his debt out of the real estate of the deceased, in case the executor or administrator neglects or refuses to take proceedings, must compel the executor or administrator to render an account unless he voluntarily produces such account pursuant to the provisions and di- rections given in the last preceding chapter of this work.(Z) And if it appear from such atoount, on the settlement thereof, that the personal property is insufficient for the payment of the debts of the deceased,, the creditor may then have the real estate mortgaged, leased or sold for the payment of such debts. The rendering of an account, by one of several administrators, is not enough to authorize an application to the surrogate, by a judgment creditor, for an order to sell the real estate of the intestate. The admin- istrators are all bound to account ; and it is the duty of the creditor tO' compel them all to account, before he has any right to call upon the heirs at law to pay a judgment recovered against the administrators.(?^/ A creditor who has assigned all his interest in a debt against his deceased debtor, to a third person, is not authorized to present a peti- tion to the surrogate, to compel the executors or administrators of the decedent to sell the real estate, for the payment of such debt, where the personal property of the decedent is insufficient for that purpose ; but the assignee of the debt, who is the real creditor, must institute the proceedings before the surrogate in bis own name. • It seems that a judgment creditor of the decedent, or a mortgagee, (kk) By the law of 1831, S. L. 1837, 531, sec. li, the 48th section of the 4th title of the sixth chapter of the second part of the Revised Statutes is repealed, and this 7 2d section is enacted ; but the latter is not declared to be in the place of the former. In the arrangement above adopted, the 49th section of the title of the Revised Statutes is made to follo-w the 7 2d section of the law of 1837, as amended, and its provisions are made to refer to the pro- visions of that section, and such was, beyond question, the intention of the Legislature ; but there is no declaration in the law to that effect. "Without such an arrangement of these sections, and such a reference, the 49th and the following three sections are unintelligible.. The same arrangement is observed in the (3d) edition of the Revised Statutes. (l) See note to Ferguson v. Broome, 1 Bradil Surr. Rep. 23. {U) Sanford v. Granger, 12 Barb. S. C. E. 392. 37 578 CREDITOR'S PETITION FOR AN ORDER. cannot institute proceedings before the surrogate, to compel a sa,le of the real estate of the decedent, upon which such judgment is a hen or 'such mortgage an incumbrance, (m) Upon an application to the surrogate by the plaintiff in a judgment recovered against administrators upon an indebtedness of their intes- tate, for an order to sell the real estate of the intestate for the payment of his debts, the applicant need not show anything, in the first instance but the record of his judgment, in order to prove his debt, and the amount of it ; but that will not prove that the heir or devisee is liable to pay the debt. To establish that liability, the creditor must prove the fact that there are not sufficient assets in the hands of the adminis- trators to satisfy the same. Without such proof the judgment is no evidence of a debt against the heirs at law, and the costs awarded against the executor or administrator can, in no event, be a charge against the real estate in the hands of the heir.(mm) Voluntary proceedings by an executor or administrator to proem'e ,an order of the surrogate to mortgage, leage or sell the real estate of the deceased for the payment of his debts, are limited, as has been seen,(«,) to the period of three years after the granting of the let- ters testamentary or of administration. The real estate of which the testator or intestate died seised remains liable to be sold under an order of the surrogate for the payment of debts in case of a deficiency of per- sonal assets, on the application of the executor or administrator for the period of three years after the granting of letters testamentary or of ad- ministration. And this liability attaches to lands, not only in the hands of the heirs or devisees, but in the hands of any subsequent pur- chaser. It is a kind of statutory lien running with the land during the three years.(nn) A creditor, however, may at any time institute compulsory proceedings for the same purpose, and require the executor or administrator to show cause why he should not be ordered to sell the real estate, and the statute expressly prohibits him from assign- ing as cause " that the time within which he is allowed to sell the same has expired." But though the lapse of three years after the grant- ing of letters is not a flat bar to a compulsory proceeding, yet it is dis- cretionary with the surrogate, after a long delay in making the applica- tion, whether to order the sale or not. The proceeding must be institu- ted within a reasonable period, and a neglect to apply, for many years, without explanation, is good reason for rejecting the application. (o) • Of the Petition of a Creditor for an Order to have ike Real Ustate of his deceased Debtor mortgaged, leased or sold for the Payment of his Debts. The petition of the creditor to have the real estate of the deceased mortgaged, leased or sold for the payment of his debts, should state the (m) JBvilerv. JEhnmeit, 8 Paige, 12. (mm) SmM'dY. Granger, 12 Barb. S. 0. R. 392. (n) Ante, p. 553. (»b) Myde v. Tcmner, 1 Barb. S. C. R. T5. (o) Ferguson v. Broome, 1 Bradf. Suit. Eep. 10, and caass cited. APPOINTMENT OP GUARDIANS, ETC. 579 foundation and particulars of his claim against tlie estate, and aver tlie insufficiency of the personal property for the payment of the debts. It will be remembered that the petition of the executor or administrator for authority to mortgage, lease or sell the real estate, is required to set forth the amount of personal property which has come to the hands of the executor or administrator, the application thereof, the debts out- standing against the testator or intestate, as far as the same can be as- certained, a description of all the real estate of which the testator or intestate died seised, with the value of the respective portions or lots, and whether occupied or not, and if occupied, the names of the occu- pants, and the names and ages of the devisees, if any, and of the heirs of the deceased ; and the petition is required to be verified by the oath of the party presenting the same. On a proceeding by a creditor, the amount of the personal property, the application thereof, and the debts outstanding, will have appeared by the account rendered by the exec- utor or administrator. As the description of the real estate, and the names and ages of the devisees, if any, and of the heirs of the deceased, are of the same importance where the creditor makes the application, as where the application comes from the executor or administrator, agad as there seem to be no other means provided for furnishing these par- ticulars, except through the person applying for the mortgage, lease or sale, such description, and the names and ages of the devisees and heirs, ought to be embraced in the petition. The prayer of the petition should be for an order for the executor or administrator to show cause why he should not be required to mortgage, lease or sell the real estate of the deceased for the payment of his debts, and that such further proceed- ings may be had as may be necessary to have such real estate disposed of for such payment. As the petition of the executor or administrator must be under oath, so that of a creditor should be also. (For form of the petition of a cred- itor, see Appendix, No. 94.) Of tlie Appointment of Guardians for Minors interested, and the Order that the Executor or Administrator show Cause. On filing the petition, proceedings for the appointment of a guardian for the minors interested in the estate, if any, must be taken, similar to those hereinbefore described, in the case of an application by an exec- tor or administrator ; and after the appointment of such guardian, the order for the executor or administrator to show cause why he should not be required to mortgage, lease or -sell the real estate, is granted. By the 49th section of the above mentioned title of the Eevised Stat- utes, such order shall be served personally on the executor or admin- istrator to whom it shall be directed, at least fourteen days before the •day therein appointed for showing cause.(oo) (For form of the order, ■see Appendix, No. 95.) In Richardson v. Judah,{p) the intestate was the owner of an undi- vided fourth part of certain lots of land ; and after his decease, one of (oo) 2 E. S. 108 ; 4th ed. 294 (p) -2 Bradf. Sxwe. Eep. 157. 580 OEDEE THAT PASTIES IN INTEEEST SHOW CAUSE; the tenants in common instituted a suit in the New York Common Pleas for partition. The proceedings were regularly conducted to a decree the premises sold, deeds given, and the proceeds of sale distrihuted among the parties. The personal estate having been insuf&cient to dis- charge the intestate's debts, a creditor applied for the sale of the real estate of which he died seised, for the payment of his debts, and the ad- ministrators were ordered to show cause why the application should not be granted. The administrators set up the sale in partition and dis- tribution of the proceeds ; and it was held, that the admiflistrators, not representing either the heirs or the purchaser, it was not competent for them to raise the objection. Of the Order thai Parties in Interest show Cause. By the 50th section of the statute, if no cause to the contrary he shown, the surrogate shall order notice of such application to be served and published, in the same manner as hereinbefore directed, on the application of an executor ; and if, at the day appointed in such notice, the surrogate be satisfied of the matters specified in the fourteenth sec- tion above quoted of the above mentioned title, he may order such ex- ecutor or administrator to mortgage, lease or sell so much of the real estate of which the testator or intestate died seised, as shall be sufficient for the payment of the debts established before him. It is assumed that the phrase, " notice of such application," used in this section, is only another name for the order to show cause, which is the process prescribed by the above quoted 5th section of the title, to the provisions of which reference is here made. A notice of the appli- cation by that name is not directed in any preceding portion of the title ; but by the 5th section, as has been.seen, the surrogate, upon an application by an executor or administrator, is required to make an or- der, directing all persons interested in the estate to appear before him, to show cause why authority should not be given to the executor or administrator to mortgage, lease or sell so much of the real estate of their testator or intestate, as shall be necessary to pay the debts ; and that is probably the process intended by the words "notice of such ap- plication," to be issued in the case of an application by a creditor. If, therefore, no cause against the petition be shown by the executor or administrator, an order is then to be made, directing all persons inter- ested in the estate to appear and show cause. (For form of the order, see Appendix, No. 96.) A notice may, doubtless, be framed, and served and published, which shall answer the same purpose as the order. If, on the return of the order requiring the administrators to show cause, it appears that all the personal estate has been applied to the payment of debts, and that there remain claims unpaid, for the satis- faction of which a sale of the real estate may be made, the surrogate is bound to issue the second order, requiring all persons interested in the estate to show cause against the application. On the return of this last order, the heirs, or parties claiming under them, may intervene and op- pose the proceedings : and if, on the return of the order requiring the administrators to show cause, they allege that other, persons besides the ORDER TO MORTGAGE, LEASE OR SELL. 581 heirs are interested, it is proper to direct the seryice of th'e second or- der on such pg,rties, though the statute does not demand such service.(p^) On the day appointed by the order, or in the notice for showing cause, similar proceedings are to be had, according to the statute, as on an application for authority made by an executor or administrator, hereinbefore described ;(g) and if the surrogate be satisfied of the mat- ters specified in the 14th section above quoted, he may order the exec- utor or administrator to mortgage, lease or sell, as he shall adjudge ex- pedient, so much of the real estate of the deceased as may be sufficient for the payment of the debts established before him. (For form of an order granted on the application of a creditor, see Appendix, ISTo. 97.) Of the Order that the Executor or Administrator Mortgage^ Lease or Sell. By section 51, upon such order being granted and served, the exec- utor or administrator shall mortgage, lease or sell, as directed in sucb order, in the manner hereinbefore directed, upon his own application ; the like bond shall be executed, the like notice shall be given, and the same .proceedings had in all respects, as are herein prescribed on the application of an executor; and the proceeds shall be returned to the surrogate in the like cases, and distribution shall be made in the like manner.(g'g) By sec. 52, if an executor or administrator shall refuse or neglect to serve and publish the notices above required, or to do any other act necessary to authorize an order for the mortgage, leasing or sale of the real property of the deceased, the surrogate may appoint a disinterested freeholder to perform the duties herein enjoined upon such executor or administrator, who shall proceed therein in the same manner as herein directed, in respect to such executor or administrator. The order to mortgage, lease or sell, must, by the 51st section, be served on the executor or administrator. In other particulars, similar proceedings are to be had, and similar forms are to be used, under these sections, as in the case of a mortgage, lease or sale, ordered on the ap- plication of an executor or administrator, (r) (pp\ Richardson v. Judah, 2 Bradf. Surr. Rep. 157. (gl See supra, p. 558. (qi) 2 R. S. 108 ; 4tli ed. 294. (r) Seo. 1Z. The heirs of any person who may be liable to any creditor of such person, in consequence of lands having descended to them, shall be prosecuted jointly, in a court of law or equity, and not separately, for any such liability. S. L. 1837, 537 ; 2 E. S. (4th ed.) 695. Seo. 53. 'So suit shall be brought against the heirs or devisees of any real estate, in order to charge' them with the debts of the testator or intestate, within three years from the time of granting letters testamentary or of administration upon the estate of their testator or intes- tate ; and if, after the expiration of that time, such suit shall be brought, upon proof of an application liaving been made, before the expiration of that period, for an order of sale pur- suant to the provisions of this title, such suit shall be stayed by the court in which it shall be pending, until the result of such application. And if an order for sale be granted there- upon, such suit shall not be any further prosecuted, unless the plaintiff will allege that lands have descended to, the heirs, or been devised to the devisees, which were not included in any order of sale ; in which case, a decree in such suit shall not charge, or in any way affect, any land so ordered to be sold ; and the plaintiff, so proceeding in such suit, shall not be entitled to any share in the distribution of the moneys arising on the sale, mortgage 'or leas- ing, of any premises, pursuant to such application. 2 R. S. 109; 4th ed. 294. Sea 54. But if the plaintiff, in any such suit, shall eleet to disoontluue the same, after no- 582 SALES BT BXBCUTOES, ETC. Of Sales hy Executors, of the Beal Estate of their Testator, under a Devise or Power. • The following sections of the statutes regulate sales of the real estate of a testator, by the executors named in the ■will, under a devise or power to such executors, contained in the will, and provide for the distribution, under the direction of the surrogate, of the proceeds of such sales : Sec. 55. Where any real estate, or any interest therein, is given or devised by any will legally executed, to the executors therein named, or any of them, to be sold by them or any of them ; or where such estate is ordered, by any last will, to be sold by the executors; and any executor shall neglect or refuse to take upon him the execution of such will, then all sales made by the executor or executors, who shall take upon them the execution of such will, shall be equally valid as if the other executors had joined in such sale.(rr) Sec. 43. Sales of real estate, made by executors in pursuance of an authority given by any last will, unless otherwise directed in such will, may be public or private, and on such terms as, in the opinion of the executor, shall be most advantageous to those interested therein.(s) Sec. 75. The proceeds of a sale of real estate, made in pursuance of an authority given by any last will, may be brought into the of&ce of the surrogate before whom such will was proved, for distribution; and the surrogate shall proceed to distribute the same in like manner, and upon like notice, as if such proceeds had been paid into his office in pursuance of an order of sale of real estate for the payment of debts, (ss) Sec. 57. Where, by any last will, a sale of real estate shall be or- dered to be made, either for the payment of debts or legacies, the sur- rogate in whose office such will was proved, shall have power to cite tice of an application having been made to a surrogate, according to the provisions of this title, he shall be entitled to distribution as other creditors, on establishing his claim. lb. (rr) 2 E. S. 109 ; 4th, ed. 294. See Ogden v. SmiiJi, 2 Paige, 195. Sec. 44. Every estate granted or devised to two, or more persons, in their own right, shall be a tenancy in common, unless expressly declared to be in joint tenancy ; but every estate vested in executors or trustees, as such, shall be held by them in joint tenancy. 1 K. S. 121; 4th ed. (2d vol.) 135. A devise to executors, eo nomine, to hold and manage real estate, until the coming of age of the youngest child of the testator, vests the estate in the executors ; and it is not neces- sary to the perfecting of the estate in them, that they should take out letters testamentary. Judson V. Gibbons, 5 Wend. 224. And, generally, a probate of a vriU is not necessary to the execution of a power of sale of lands, contained in such wiU. DoolUUe v. Lewis, 1 Johns. Ch. Rep. 48. See, also, Dominick v. Michael, 4 Sandf. Superior Court Rep. 3T4. • (s) S. L. 1831, 532 ; 2 R. S. (4th ed.) 295. The following is the provision of the statute, which was repealed by the '74th section of the law of \831, (S. L. 183T, 536,) at the time this section was enacted. Sec. 56. Sales of real estate, made by executors in pursuance of an authority given by any last wiU heretofore made, or hereafter to be made, unless otherwise directed in such will, may, except where the real estate is situated in the city and county of New York, be pubhe or private, and on such terms as, in the opinion of the executor, shall be most advantageous to those interested therein. Such sales of real estate situated in the city and county of New York, shall be made after like notice, and be conducted in the same manner, as is prescribed in title four, chapter sixth, of the second part of the Revised Statutes, in relation to sales by order of any surrogate. In a note to the new section in the (3d) edition of the Revised Statutes, it is stated to bsf substituted for the former 56th section. (ss) a L. 1837, 53'! j 2 R. S. (4th ed.) 295. SALES BY EXECUTORS, ETC. 583 the executors, in sucli 'will named, to account for the proceeds of the sales, and to compel distribution thereof; and to make all necessary orders and decrees thereon, with the like power of enforcing them, as if the said proceeds had been originally personal property of the de- ceased in the hands of an administrator.(<) Whenever a power is given, in a will, to sell lands, without ex- pressly naming a donee of the power, and the proceeds of the sale are to go to pay debts or legacies, or to be distributed, the power vests in the executors, unless a contrary intent appears.(W) And such power is well executed by a deed from one executor, who has qualified, the others not having qualified.(if) And the above 55th section of the statute, it seems, applies as well to discretionary as to peremptory pow- ers of sale.(v) Where, however, the power to sell, given to executors by the will, is special, it can be exercised only in the mode prescribed by the tes- tator. Thus, where an executor was authorized to sell the real estate at public vendue, to pay off the legacies to the children of the testator, as they became of age, and he sold the property at private sale, to raise money for his own use, before the legacies became payable, the sale was held to be void.(w) And where a testator, by his will, gives no au- thority to his executors to sell his real estate, the executors cannot sell any portion thereof, either for the purposes of division or otherwise.(x) The proceedings on compelling an executor to account for the pro- ceeds of a sale of real estate, made by him under the will of the de- ceased, as was stated at a previous page,(2/) will be governed in all respects by the provisions and directions contained in the last prece- ding chapter of this treatise, for compelling an executor to render. an account of the personal property of his testator. The statute authorizing executors to bring the proceeds of a sale of real estate under the provisions of a will, into the surrogate's ofiice, for distribution, is only for the benefit or protection of the executor ; and it does not require the executor to place such proceeds in the surrogate's hands, where the real estate is sold under a power contained in the will.(y2/) By the 58th section of the above mentioned title of the Eevised Stat- utes, any executor or administrator, or other person, appointed as therein directed, who shall fraudulently sell any real estate of his tes- tator or intestate, contrary to the foregoing provisions, shall forfeit double the value of the land sold, to be recovered by the person enti- tled to an estate of inheritance therein.(a) By sec. 59, no offence, in relation to the giving of notice of sale, or the taking down or defacing such notice, shall aSect the validity of such sale to any purchaser in good faith, without notice of the irregularity. (i) 2 R. S. 109; 4th ed. 296. See Carroll M. Carroll, 11 Barb. S. C. R..293. («) MeaUngs v. Cromwell, 2 Sandf. Superior Ct. Rep. 512 ; S. C, 1 Selden, 136. (m) 1 Selden, 136. («) Taylor v. Morris, 1 Corns. 341. (w) Pendleton v. Fay, 2 Paige, 202. (x) Craig v. Craig, 3 Barb. Ch. Eep. '?6. \y) See ante, p. (yy) Holmes v. Cook, 6 Barb. Ch. Eep. 426. (z) 2 R. S. 110 ; 4th ed. 295. 584 SALE OP THE INTEREST OF THE DECEASED. By sec. 60, the several surrogates shall record, in books to be pro- vided by them for that purpose, all orders and decrees by them made upon any pi^oceedings before them in relation to the sale of real estate' and shall file and preserve all papers, returns, vouchers and documents' connected with such proceedings. ' Of the Sale of the Interest of the Deceased in a Contract for the Purchase of Land. Where the deceased was possessed of a contract for the purchase of land, his interest in such land, and under such contract, may be sold, under an order of the surrogate, for the payment of his debts. An in- terest in a contract for the purchase of land is real estate, and descends to the heirs of the purchaser ; and, as the administrator has no power over the land and real estate of the decedent, any further than the stat- ute has given it to him, he has not any control over such contract for the purchase of real estate, which will authorize him to deliver the same to a judgment creditor, with a view of having it disposed of, and realizing money upon it.(a) The provisions of the statute, directing and regulating the sales in such cases of contracts, remain to be. stated. By the 66th section of the above mentioned title of the Eevised Stat- utes, if the deceased, fit the time of his death, was possessed of a con- tract for the purchase of land, his interest in such land and under such ■contract, may be sold on the application of his executor or administra- tor, or of any creditor, in the same cases and in the same manner as if he had died seised of such land ; and the same proceedings may be had for that purpose as are prescribed in this title in respect to lands of which he had died seised, except as hereinafter provided.(6) ' By the 67th section, such sale shall be made subject to all payments that may thereafter become due on such contract ; and if there be any such payments thereafter to become due, such sale shall not be con- firmed by the surrogate until the purchaser shall execute a bond to the executors or administrators of the deceased, for their benefit and indemnity, and for the benefit and indemnity of the persons entitled to the interest of the deceased in the lands so contracted for, in a penalty 'double the whole amount of payments thereafter to become due on such contract, with such sureties as the surrogate shall approve, condi- tioned, that such purchaser will make all payments for such land that shall become due after the date of such bond, and will fully and amply indemnify the executors or administrators of the deceased, as the case may be, and the persons so entitled, against all demands, costs, charges and expenses, by reason of any covenant or agreement contained in such contract, or by reason of any other obligation or liability of the deceased, on account of the purchase of such lands, and against all other covenants and agreements of the deceased, to the vendor of such land, in relation thereto. By the 42d section of the law of 1837, the surrogate may order a sale, pursuant to the sixty-sixth section of title four, chapter six of the (a) Griffith v. Beecher, 10 Barb. S. 0. Rep. 432. (5) 2 R. S. 111. SALE OP THE INTEREST OP THE DECEASED. 585 second part of the Revised Statutes, as well where the deceased was the assignee of a contract for the purchase of land, as where he was the original purchaser. Such sales may be made subject to all payments due or to become due on the contract ; and the bond required by the sixty-seventh section of the same title, shall, in such case, be condi- tioned for the payment of all moneys due or to become due on the contract. Such bond shall be required in all cases where the sale is made subject to payments due or to become due on the contract. (c) By the 68th section of the above mentioned title of the Revised Statutes, if there be no payments thereafter to become due on account of such contract, no bond shall be required of the purchaser.((i ) By section 69, when such bond shall be executed, in the cases where it is required, and in all cases where the sale shall be confirmed, the surrogate shall direct the executors or administrators of the deceased to execute an assignment of such contract to the purchaser ; which as- signment shall vest in such purchaser, his heirs and assigns, all the right, interest and title of the persons entitled to the interest of the de- ceased in the lands sold at the time of sale, and such purchaser shall have the same rights and remedies against the vendor of such land as the deceased would have had if he had lived. By section 70, if, in the judgment of the surrogate, a part of the land so contracted may be sold advantageously to the interest of the estate of the deceased, and so that the purchase moneys of such part will satisfy and discharge all the payments to be made for such land, ac- cording to the contract, he may order such part only to be sold ; and, in that case, the purchaser shall not be required to execute any bond.(e) By section 71, the moneys arising from any sale under the five last sections shall be paid to the surrogate, and shall be disposed of by him in the payment of the charges and expenses of such sale, and in satis- fying any claim of dower which the widow of the deceased may have upon the lands so sold, in the manner hereinbefore provided, in re- spect to the sale of lands of which the" deceased died seised. By section 72, such claim of dower is declared to extend only to the annual interest, during the life of the widow, upon one-third of the surplus of the moneys arising from such sale, which shall remain after paying all sums of money due from the deceased, at the time of such sale, for the lands so contracted and sold. By section 73, the surrogate shall apply the residue of the moneys arising from such sale, in the first instance, to the payment of all sums of money then due from the deceased to the vendor of the land so con- tracted on account of such contract, and shall then proceed to distri- bute the balance among the creditors of the deceased in the manner , hereinbefore provided ; and if there be any surplus, after payment of debts and expenses, the same shall be distributed among the persons who would have been entitled to the interest of the deceased in the lands sold if such sale had not been made, or th^ persons claiming under them, in proportion to their respective rights in the premises sold. (c) S. L. 183T, 532 ; 2 R. S. (4tli ed.) 296. (d) 2 R. S. HI; 4th ed. 291. (e) 2 R. S. 112 ; 4th ed. 297. 586 SALE OP THE INTEREST OF THE DECEASED. By section 74, wliere a portion only of the lands so contracted is sold, the executor or administrator shall execute a conveyance therefor to the purchaser, which shall transfer to him all the rights of the de- ceased to the portion so sold, and all rights which shall be acquired to such portion by the executor or administrator, or by the persons enti- tled to the interests of the deceased in the lands sold at the time of sale on the perfecting of the title to such land, pursuant to the contract.(eej By section 75, upon the payment being made, in full, on a contract for the purchase of land, a portion of which shaU have been sold, ac- cording to the preceding provisions, the executors or administrators of the deceased shall have the same right to enforce the performance of the contract which the deceased would have had if he had lived ; and any deed that shall be executed to them shall be in trust and for the benefit of the persons entitled to the interest of the deceased, subject to the dower of the widow, if there be any, except for such part of the land so conveyed as shall have been sold to a purchaser according to the preceding proAdsions ; and as to such part, the said deed shall enure to the benefit of the purchaser. The forms adapted to the sales of real estate where the deceased died seized in fee, can be easily applied to proceedings for the sale of contracts. A continuation of further precedents is, therefore, deemed unnecessary. Sec. 1. Whenever an order has been or shall be made by a surro- gate for the mortgage, lease or sale of the real estate of any deceased person, and the executor or administrator, or other person named therein shall die or be removed, or shall be otherwise disqualified from executing the same, while the same order remains unexecuted in whole or in part, the proceedings in relation thereto shall be in nowise af- fected by such death, removal or disqualification ; and it shall be law- ful for the surrogate of the county by whom said order was made, to authorize the administrator to whom letters of administration shall have been issued on the goods, chattels and credits unadministered of said deceased, with the will annexed or otherwise, or a disinterested freeholder, as in the case of an original order, to execute said order in the same manner and with the like effect as if the said ordet had been executed by the executor or administrator, or other person origi- nally named therein ; provided, that the administrator or other person so to be authorized shall, before receiving such authority, give the like security as would be required on- the granting of an original order for the mortgage, lease or sale of any real estate. (/) Another act of the Legislature of the year 1860, enacts as foUows, with respect to omissions and defects in proceedings under the Eevised Statutes, for the mortgage, lease or sale of the real estate of deceased persons for the payjnent of their debts. Sec. 1. Every sale heretofore made, or hereafter to be made, under any of the provisions of the fourth title of chapter six of the second (ee) 2 R. S. 112 ; 4th ed, 297. (/) Laws of 1850, ch. 162 ; 2 R. S. (4th ed.) 291. THE AUTHOBITT OF AN ADMINISTRATOR. 587 part of the Eevised Statutes, and of the acts amending the same, or in addition thereto^ shall be deemed and held to be as valid and effectual as if made by order of a court having original general jurisdiction, and the title of any purchaser at any such sale made in good faith, shall not be impeached or invalidated by reason of any omission, error, de- fect or irregularity in the proceedings before the surrogate, or by any allegation of want of jurisdiction on the part of such surrogate ; except in, the manner and for the causes that the same could be impeached or invalidated, in case such sale had been made pursuant to the order of a court of original general jurisdiction. Sec. 2. No such sale, under any of the provisions of the fourth title of chapter sixth of part second of the Eevised Statutes, and of the acts amending the same, shall be invalidated, nor in anywise impeached, for any omission or defect in any petition of any executor or administrator under the provisions of said title and acts amending the same, provided such petition shall substantially show that an inventory has been filed, and that there are debts, or is a debt, which the personal estate is in- sufficient to discharge, and that recourse is necessary to the real estate (or some of it) whereof the decedent died seised. Sec. 3. Nor shall any such sale be invalidated, nor in anywise im- peached, by reason that any such petition was or shall be presented by less than the whole number of executors or of administrators ; nor by reason that after the filing of any such petition, any bond required by law has been or shall be given by less than the whole number of the executors or administrators petitioning ; nor by reason that any further proceeding, notice, sale, deed or return has been or shall be had or made by less than the whole number of executors or administrators petitioning ; nor by reason of any irregularity in any matter or pro- ceeding after the presenting of any petition, and the giving notice of the order to show cause why the authority or direction applied for should not be granted, and before the order confirming such' sale ; pro- vided, that nothing in this act contained shall be construed to affect, in any manner, any suit or proceeding already commenced for the recov- ery of any lands or the proceeds thereof, sold under or by virtue of any order of a Surrogate's Court. Sec. 4. This act shall not be construed as authorizing any surrogate, or officer performing the duties of the office of surrogate, to make any order for the sale of the real property of a deceased person, or to confirm any such sale, unless, upon a due examination, he shall be satisfied that the provisions of said title have been complied with as if this act had not been passed.(jf) Of the Authority of an Administrator with the Will annexed over the Real Estate of the Deceased. It has been a matter of question whether an administrator with the will annexed has authority to sell real estate under a power granted by the will to the executor. By section 22, 2 E. S. 72, as has hereto- fore appeared(5') in all cases where letters of administration with the (/) S. L. 1850, oh. 82 ; 2 R, S. (4tli ed.) 290-91, (jr) Ante, p. 230. 588 DECISIONS- UPON SALES OP RBA.L ESTATE. will annexed shall be granted, the will of the deceased shall be ob- served and performed ; and the administrators, with such will shall have the rights and powers, and be subject to the same duties as if they had been named executors in such will. In Conklin v. Egerton's Administrator, {h) it was held by the Supreme Court, (Cowen, J.,) upon an elaborate discussion of the law on this subject, that, notwithstanding this provision, a power to an executor to sell and dispose of real estate granted by a will, and to divide the proceeds among devisees to whom the estate was given by a previous clause of the same will, cannot after the death of the executor, be executed by an administrator cum testamento annexo. On a writ of error in the case,(i) the Court of Errors affirmed the judgment of the Supreme Court, but on aijother ground, and declined to express an opinion upon the point thus decided. In Dominich v. Michael,{j) however, the Superior Court of the city of New York, expressly determined that a power given by will to execu- tors, to sell the real estate of the testator, if not executed by the exe- cutors during their lifetime, does not vest in, and cannot be executed by the administrator with the will annexed ; ■ that the common law powers of an administrator with the will annexed have not been altered by the Revised Statutes, so as to enable him to execute such a power ; and that the Legislature, by the section of the Revised Statutes above recited, intended that an administrator with the will annexed, should succeed merely to the rights, powers and duties of the executors, in relation to the personal estate ; not that he should exercise any power over the real estate. In Le Fort and others v. Delafield^iji) where the defendant, who was an administrator with the will annexed, according to the allegations of the bill, assumed to act as trustee of the real estate under the will, it was held, that, whether the defendant, being merely the administrator in the place of the executors, could rightfully claim to be trustee of the real estate or not ; yet, the complainants were at liberty to consider him in possession as their trustee, instead of regarding him as a mere wrong doer or trespasser ; and upon charges of neglecting his duty as trustee, such as were contained in the bill, that they had a right to ask for his removal and the appointment of a proper trustee in his place. Where it was doubtful whether the administrator, with the will annexed, was authorized to execute a trust power given to a person who was also named in the will as executor, but who refused to accept the trust, the court appointed such administrator trustee, and directed him to execute the conveyance of the property, under the power in trust, both as administrator and as trustee. (Z) Decisions upon Executors^ or Administrators' Sales of Real Estate under Surrogate's Orders. It is deemed proper in this place to cite some of the decisions which have been made respecting sales by executors and'administratorsofthe '(h) 21 Wend. 430. (i) Egerton's Adirir v. OonMvn, 25 Wend. 224. U) 4 Sandf Sup. Ct. Rep. 374. Qc) 2 Edw. Ch. Rep. 32. (i) De Peyster v. Glendeming, 9 Paige, 296. DECISIONS UPON SALES OF REAL ESTATE. 589 real estate of deceased persons for the payment of their debts under the orders of surrogates. The foregoing provisions of the statute relating to such sales, and also those prohibiting the bringing of suits against heirs or devisees for the debts of their ancestors or testators within three years from the time of granting letters testamentarj'- or of administration upon their estates,(m) were considered by Vice-Chancellor McCoun in Mathews v. Mathews and others,{n) with reference to a partition or conveyances of such real estate made among or by the heirs of the deceased, and he came to the conclusion that the Legislature intended that whenever the power of the executor or administrator over the real estate of the dece- dent should be exercised, and a sale become necessary under the au- thority of the surrogate, to make it overreach and supersede any sale made or procured by the heir or devisee within the three years ; and also considei'ed such sales as not made in good faith while debts of the ancestor remained, and a possibility existed of a deficiency of personal assets. A surrogate's order of sale of real estate for the payment of debts, cannot ordinarily be impeached, collaterally, even for fraud ; if the surrogate obtains jurisdiction by the presentment of an account of the estate and debts of the deceased, his adjudication that the personal estate is insufficient for the payment of debts, followed by an order of sale, is conclusive in any collateral proceeding. Such adjudication is examinable only on appeal, or by a proceeding in the nature of an appeal.(o) Evidence of abuse of power by administrators is inadmissible to de- feat the title of a purchaser under a surrogate's order, (ji) Whether an administrator authorized by a surrogate to mortgage lands of the intestate, can legally include a power of sale in such mort- gage, and whether a foreclosure under such power is valid, so as to bar a redemption of the premises, quere ; but at all events, Avhere the mort- gage has been foreclosed under such power, and the mortgagee has en- tered into possession, an action of ejectment will not lie against him by the heirs of the intestate.(g) If an executor or administrator pay debts in the course of his administration beyond the amount of assets v. hich come to his hands, he shall have a right to be reimbursed, on the sale of the real estate.(r) To give validity to a deed of lands, executed under a sale by virtue of a surrogate's order, it must be affirmatively shown that an account of the personal estate, and of the debts of the testaior or intestate, was presented to the surrogate. It is not enough that the presentment of such account, and the adjudication of the surrogate thereon, are recited in the order of sale, even though the surrogate testifies that he has no doubt that all the proceedings thus recited were actually had.(A-) On a question as to the validity of a sale of real estate under a (m) Supra, p. 581, note. (n) 1 Edw. Ch. Bep. 565. (o) AIMns V. Kinnan, 20 Wend. 241. [p) Jackson v. Irwin, 10 "Wend. 441. (q) Fox V. Lipe, 24 'Wend. 164. (n 3 Johns. Ch. Kep. 316 ; Kirt. Surr. 336. See, also, CoUinson v. Owens, et al. ; 6 Gill and Johns. 4. (s) Ford\. Wcdmorih, 15 Wend. 449. 590 DECISIONS UPON SALES OP REAL ESTATE. surrogate^e order, there may be a' resort to secondary evidence to show the presentment of an account of the personal estate of the deceased and of an estimate of his debts previous to the making of an order to show cause, if the documents cannot, on due search, be found in the proper ■office.(i) A sale under a surrogate's order of the real estate of an intestate is void, unless an order of confirmation is obtained previous to the con- veyance to the purchaser ; S(5 held in Rea v. McI!achron,{u) although it was offered to be proved that the sale was bona fide, that a full and fair price was paid by the purchaser, and that the proceeds were applied to the payment of the debts of the intestate. Where, upon an application to confirm a sale of real estate, made under an irregular order of a surrogate, it appeared that at the time the order for sale was made, there was personal estate in the hands of the administratrix more than sufficient to pay all the debts of the in- testate, and there was no evidence that any part of the personal estate, or of the proceeds of the sale of the real estate, ever came to the hands of the heirs at law ; it was held, that the assignee of the purchaser was not entitled to an order confirming the sale, although the latter pur- chased the estate at the sale in good faith, without notice of the fraud committed by the administratrix. (u) The application to the Chancellor, under the statute, to confirm a sale under an irregular and illegal order of a surrogate, proceeds upon the ground that the sale was unauthorized, and that the legal title re- mains in the- heirs at law; and where the equities of the parties are equal, they will be left to their legal rights.(w) An administrator who is applying to a surrogate for leave to sell real estate in order to pay debts, will be restrained by perpetual injunc- tion, where a decree for foreclosure and sale of' the same premises has been had in the Court of Chancery, and is in force. And if there he a surplus of the proceeds of the- sale' remaining after the payment of the mortgage debt, the equitable rights of the creditors will be permitted to attach at once to such proceeds, instead of the lands, and the money will be applied in the same equitable manner, under the direction of the Court of Chancery, as it would be applied by the surrogate, provided the lands were sold under his authority .(x) A contract by an administratrix, to convey lands of her intestate, when a surrogate's order for that purpose' shall be obtained, does not vest an interest, though an order be afterwards obtained. Such aeon- tract is void, and incapable of being enforced either at law or in equity; both because the administratrix has no interest, and as being contrary to the policy of the act authorizing administrators to sell the real estate of their intestate. An administrator has no interest in, or control over the real estate of his intestate ; and though, after a contract to sell land when a surrogate's order shall be obtained for that purpose, an (■<) lb. («) 13 "Wen. 465. (v) In the Matter of Semiiip, 3 Paige, 305. (w) 3 Paige, 315. (a;) Brevoort T. McJimsey, 1 Edw. Chan. Eep. 551. PBOCEEDINGS FOR THE REVOCATION OF THE PROBATE. 591 order be actually obtained, the administrator takes no beneficial inter- est which can enure to make the contract binding, even if it were not contrary to the policy of the law.(?/) CHAPTER XIV. OF PROCEEDINGS FOR THE REVOCATION OF PROBATES, AND FOR THE REMOVAL OP EXECUTORS; FOR COMPELLING EXECUTORS TO GIVE SECURITY, AND ADMINISTRATORS TO GIVE NEW SURETIES, WHERE THOSE ALREADY PROVIDED ARE INSUFFICIENT, OR DESIRE TO *BE RELEASED. It was seen, in a preceding portion of this work, in connection with the subject of the inventory, (o) that the surrogate may issue a revocation of the letters testamentary or of administration, granted to any executor or administrator, if he neglect or refuse, after summons, to return an inventory within the time and in the manner prescribed by law ; and the proceedings and practice on such revocation were there described in detail. It was also seen(6) that the payment of legacies may be en- forced by the surrogate, in the same manner as the return of the in- ventory ; that obedience by an executor or administrator to a surro- gate's order to render an account,(c) may be enforced in the manner directed to compel the return of an inventory ; that in case of disobe- dience, the same proceedings may be had to attach the party so dis- obeying, and to discharge him ; and that the like revocation of the letters granted to him may be made, in case of the party's absconding or concealing himself, so that the order cannot be personally served, or of his neglecting to render an account within thirty days after being committed ; and that whenever an absent or non-resident executor or administrator shall have been duly cited to appear and account before the surrogate, and such executor or- administrator shall, without show- ing reasonable cause, neglect or refuse to appear, in pursuance of said citation, the surrogate issuing such citation may, in his discretion, thereupon revoke the letters testamentary or letters of administration before granted to such executor or administrator.(c^) The other cases in which the authority of an executor or administrator may be revoked, and the practice on such revocation, remain to be treated of. Of Proceedings for the Revocation of the Probate of a Will on Allegations. Proceedings for the revocation of the probate of a will, on allegations of any of the next of kin of the deceased against the validity of the will, or the competency of the proof thereof, thereby destroying the (y) Bridgewaier v. Srookfield, 3 Cowen, 299. (os) Ante, pp. 255, 261. (S) Ante, pp. 409, 419. (c) Ante, p. 447. (d) Ante, p. iil. 592 PEOCBBDINGS FOE THE EEVOCATION OF THE PEOBATE. "authority of the executor, come first in order under this head.(e) The following sections of the 1st title of the 6th chapter of the 2d part of ' the Eevised Statutes provide for the investigation, and prescribe the proceedings to be had for the purpose of such revocation. Sec. 30. Notwithstanding a will- of personal property may have been admitted to probate, any of the next of kin to the testator may, at any time within one year after such probate, contest the same, or the va- lidity of such will, in -the manner herein provided.(/) Sec. 31. For that purpose, such relative shall file in the office of the surrogate by whom the will was proved, his allegations, in writing, against the validity of such will, or against the competency of the proof thereof. Sec. 82. Upon the filing of such allegations, the surrogate shall issue a citation to the executors who shall have taken upon them the execu- tion of such will, or to the administrators' with such will annexed, and to all the legatees named in such will, residing in this state, or to their guardians, if any of them be minors, or their personal representatives, if any of them be dead ; requiring them to appear before him, on some day to be therein specified, not less than thirty, and not more than sixty days from the date thereof, at his office, to show cause why the probate of such will should not he revoked. Sec. 33. After the service of the citation, such executor or adminis- trator shall suspend all proceedings in relation to the estate of the tes- tator, except the collection and recovery of moneys, and the payment of debts, until a decision shall be had on such allegations.(g') Sec. 34. At the time appointed for showing cause, and at such other times thereafter as the surrogate may appoint, upon due proof being made of the personal service of such citation, upon every person named therein, at least fourteen days before the time appointed for showing cause, the surrogate shall proceed to hear the proofs of the parties. H any legatees named in the will so contested shall be minors, and have no guardians, he shall appoint guardians to take care of their interests in the controversy. Sec. 35. If, upon hearing the proofs of the parties, the surrogate shall decide that such will is, for any reason, invalid, or that it is not suffi- ciently proved to have been the last will and testament of the testator, he shall annul and revoke the probate thereof; if otherwise, he shall confirm such probate. Appeals from such decisions may be made, in the manner, within the time, and with the effect prescribed by law. Sec. 36. Upon any such hearing before the surrogate, the depositions of witnesses, taken on the first proof of the will, w^ho may be dead, in- sane, or out of the state, may be received in evidence. Sec. 37. Whenever any surrogate shall annul and revoke the probate (e) Where there is an appeal from the decisioa of the surrogate, admitting the will to probate, and the circuit judge reverses the decision of the surrogate, upon a question of fact, and a feigned issue is made up and determined against the Validity of the win, or against the competency of the proof thereof, by section 60, 2 E. S. 67, the surrogate annuls a,nd re- vokes the record or probate of the will, if any shall have been made ; but a revocation on this ground can more conveniently be considered in connection with the subject of appeals from the orders and decrees of surrogates. (/) 2 E. S. 61 4th ed. 244. (?) 2 E. S. 62 ; 4th ed. 244. PROCEEDINGS FOR THE REVOCATION OF THE PROBATE. 593 .of any will of personal property, as herein provided, he shall enter such revocation in his records, and attest the same : and shall cause notice thereof to be immediately served on the executors therein named, or upon the administrators with such will annexed, and to be published for three weeks in a newspaper printed in his county, if there be one ; the expense of which publication shall be taxed as a part of the costs of the proceedings. Sec. 38. Upon such notice being served upon such executor or ad- ministrator, his powers and authority' shall cease, and he shall account to the representatives of the deceased person, whose alleged will was contested, for all moneys and effects received ; but such executor or. administrator shall not be liable for any act done in good faith, previous to the service of the citation, nor for any act so done in the collection of moneys, or the payment of debts, after the service of the citation, and previous to the service of the notice of revocation. Sec. 39. The surrogate's fees and expenses shall be paid by the partj^ contesting the validity of the will, or the probate thereof, in case such will or probate -be confirmed ; and in case such probate be revoked, the party who shall have resisted sueh revocation, may be required by the surrogate to pay the costs and expenses of the proceedings either per- sonally, or out of the property of the deceased. In all cases, such pay- ment may be enforced by process of attachment.(/i) These provisions call for few other comments than such as may be necessary intelligibly to refer the reader to the forms and precedents for the practice under them to be found in the Appendix. It is to be observed that, by the 80th section, the right to contest the probate, or the validity of the will, is given to the next of kin only, and that, strictly, by the words of the section, the widow is excluded, she not being one of the next of kin to the testator. But the widow is clearly within the spirit and equity of these provisions, and would, be- yond all doubt, be held entitled to take proceedings under them. The allegations are not required to be under oath, nor is the party obliged to state in them anything more than his objections against the validity of the will or the competency of the proof thereof. But by the 32d section, the surrogate is to issue a citation to the executors of the will, or to the administrators with the will annexed, and to all the leg- atees named in the will,, residing in this state, or to their guardians, if any of them be minors, or their personal representatives, if any of them be dead, requiring them to appear and show cause why the probate should not be revoked. The names of the executors of the will or of the administrators with the will annexed, will appear by the records in the surrogate's of&ce, and in many cases the names of the legatees may be ascertained by an inspection of the record of the will, but even in respect to the names of the legatees, the surrogate may not always be able to obtain from the records the requisite information, as where the- bequest is to certain persons whose names are not given, but who are designated by the terms "children," "issue," or otherwise, and in scarcely any case can he learn positively from sources in his office,, whether the legatees are of fuU age, or minors,, and if minors,, whether (A) 2 R. S. 63. 38 594 PKOOEBDINGS FOR THE EETO0A.TION OF THE PROBATE. they have guardians, and the names of such guardians, or whether anv of them has died, and if so, the names of his personal representatives ' if any, or where the legatees, or such guardians, or such personal rep- resentatives reside. It is submitted, therefore, that a statement of these particulars should be included in or should accompany the allegations to enable the surrogate to issue the citation correctly. (For forms of allegations, see Appendix, No. 98.) On filing the allegations the citation issues. An order must be en- tered in the surrogate's minutes for issuing the same. (For forms of the order and of the citation, see Appendix, No. 99.) At the time appointed for showing cause, there should be an inspec- tion of the will and an examination as to the residence of the legatees and as to the other facts respecting them specified in the 32d section so that it may be ascertained whether the citation has been directed to and served upon all the persons named in that section. It will, per- haps, prove useful to have the appearances of the parties who attend on the return of the citation, and the defaults of those who fail to at- tend duly noted and entered. If any of the legatees are minors, hav- ing no general guardians in this statej»proof should be taken of the due service of the citation upon them, and a special guardian should be ap- pointed. If any of the infant legatees have a general guardian ap- pointed by the will in question, the practice is to serve the citation on both the infant and such guardian, and on the return of the citation the surrogate will decide as to the appointment of a guardian ad litem. The practice heretofore prescribed for bringing minors into court, on the set- tlement of an account of an executor or administrator, (i) may safely be used in the present proceeding. The directions there giveu and the forms there referred to may easily be applied and adapted to this case. The proof of the service of the citation required by the 34th section will be by af&davit ; and, on such proof being furnished, and after the appointment of guardians for the minors, if the same be necessary, the examination into the allegations, and the validity of the- will, and the competency of the proof thereof, is entered upon. Upon the hearing on the allegations before the surrogate, it is not sufficient for the executors or legatees, in the first instance, in answer to the citation to " show cause why the probate of the will should not be revoked," to present the pro- bate of the will as prima fotcie evidence of its validity. Though the pro- bate is generally conclusive as to the validity of the will, it is of no force in a proceeding instituted directly to impeach the probate itself. If the •allegations are sufficiently broad to question the validity of 'the will, and the competency of the proof, the executors or parties interested against the allegations must prove the will, de novo, by original proof; and none of the depositions taken on the first proof can be received in evidence, except in the precise cases pointed out by the above 36th section of the statute — where the witness is dead, insane, or out of the state.(y) The party filing the allegations will probably not be per- mitted to bring testimony as to any other objections against the will, 'or the probate thereof, than those specified in the allegations. (i) See ante, p. 469. (}) GoUier v. Idky's 'Executors, 1 Bradf. Surr. Rep. 94. PROCEEDINGS FOR THE REMOVAL OF AN EXECUTOR. 5^5 Under sec. 57, 2 R. S. 80, the testimony taken by tlie surrogate must be reduced to writing, and entered by him in a proper book, to be pro- vided and preserved as part of the books of his office. It is commonly recorded in the book of current daily minutes. If the surrogate decide, upon the evidence, that the will is for any reason invalid, or that it is not sufficiently proved, he annuls and re- vokes the probate thereof Such revocation must, by the 37th section, be entered!^ by the surrogate in his records, and attested by him, and notice thereof must be served and published as therein provided ; and, by the 39 th section, the party who shall have resisted such revocation may be required by the surrogate to pay the costs and expenses of the proceedings, either personally or out of the property of the deceased, and such payjnent may be enforced by process of attachment. (For form of the order of revocation, requiring, also, the payment of the fees and expenses, see Appendix, No. 100.) If the surrogate decide that the allegations have not been sustained, and that the will is valid and sufficiently proved, he makes an order dismissing the allegations and confirming the probate, and directing the party who contested the validity of the will or the probate, to pay the fees and expenses of the proceedings. According to the 39th sec- tion, the order may require such payment, or, in default thereof, allow an attachment to issue against the party. (For form of the order, see Appendix, No. 101.) In case the order provide for enforcing' the payment pf ■ the fees and expenses, by attachment, upon proof of personal service of the order, and of the bill of fees and expenses and demand, and of default in payment, an attachment will issue. The proceedings on such attach- ment will be governed by the provisions of the Revised Statutes re- lating to attachments, (ft) heretofore particularly referred to in connec- tion with the subjects of the jurisdiction and powers of surrogates, and of the inventory. (For forms of proof on which an attachment may issue, order for issuing attachment and attachment, see Appendix, No. 102.) Similar proceedings are to be had to enforce the payment of the costs and expenses of the proceedings in case the probate be re- voked, if the surrogate direct the party resisting such revocation to pay the same, either personally or out of the estate, and -allow' an at- tachment to issue.(Z) Of Proceedings for the Removal of an Executor who is hgally incom- petent, and to compel an Executor, whose Qircumstances are so preca- rious as not to afford adequate Security for his due Administration of the Estate, to give Security, or to remove him for want of Security. By the 18th section of the 2d title of the 6th chapter of the 2d part of the Revised Statutes, if, after letters testamentary shall have been granted to any person named as executor in any will, complaint shall be made to the surrogate of the county in which such letters were granted, by any person interested in the estate of the decealsed, that the (h) 2 R. S. 586. See ante, p. 2*f ; & L. WSI, 535 ; 2 R. S. 22:-i ; 4th ed. «1. (Z) 'With respect to the effect of an appeal from the surragate's decision upon allegations, see Mason v, Jones, 2 Bradf. Sair. Rep. 181, 325. 596 PRO0EBDIN.G3 FOE THE REMOVAL OP AN EXECUTOR. person so. appointed executor has become incompetent, by law, to serve as such, or that his circumstances are so precarious as not to afford ad- equate security for his due administration of the estate, or that he has removed, or is about to remove, from this state, the surrogate shall pro- ceed to inquire into such complaint.(m) By sec. 19, such surrogate shall thereupon issue a citation to the per- son complained of, requiring him to appear before such surrogate, at a day and place therein to be specified,, to show cause why he should not be superseded ; which citation shall be personally served on the person to whom it may be directed, at least six days before the return thereof, if he be in the county ; and, if he shall have absconded from such county, it may be served by leaving, it at his place of residence. By the 61st section of the act of 16th May, 1837, concerning the proof of wills, &c., whenever the surrogate shall issue a citation to any administrator, executor or guardian, requiring him to show cause why he should not be removed from office, the surrogate shall have power to enter an order, enjoining such executor, administrator or guardian, from further acting in the premises, until the matter in controversy shall be disposed of.(n) By the 20th section of the above mentioned title of the Eevised Statr utes, upon due proof of the service of such citation, the surrogate shall proceed at the day appointed, or on such other day as he shall appoint, to hear the proofs and allegations of the parties ; and, if it appear that the circumstances of the person so appointed are precarious, as afore- said, or that such person has removed, or is about to remove, from this state, he shall require such person to give bond, with sureties, like _ those required by law of administrators, within a reasonable time,, not exceeding five days.(o) By section 21, if such person neglect to give such bond, or if it ap- pear that he is legally incompetent to serve as executor,, the surrogate shall, by order, supersede the letters testamentary, so issued to such person,, whose authority and rights as an executor shall thereupon cease ;, and, if there be no acting executor of such will, the surrogate shall grant letters of administration with the will annexed, of the assets of the deceased left unadministered, as provided in this title. The complaint to the surrogate, under the above quoted 18th sec- tion, should be presented in writing, and should be in the shape of a petition, praying a citation under the succeeding 19th section. It is supposed that, by the words of the 18th section, the surrogate may issue the citation to the executor to, show cause, upon a mere state- ment of a complaint against him, and leave the party to bring forward the particulars of his charges on the return day of the citation; and that the inquiry, referred to in the last clause of the section, is one which is to take place on the hearing of the matter, after the executor has been duly cited, and not on the issuing of the citation. ■ The peti- tion, however, should state such particulars, as to the situation aild value of the estate of the decedent, and the pecuniary circumstances of the executor, as, prima facie, to render it probable that the estate of the (m) 2 R. S. 72 ; 4th ed. 257. (n) S. L. 1837, 535 ; 2 R. S. (4th ed.) 421. See ante, p. 23. (fi) 2R. S. 72; 4th ed. 257. PROCEEDINGS FOR THE REMOVAL OP AN EXECUTOR. 597 testator -will not be safe in tlie hands of the executor. The petition will not be sufficient when the petitioner only states therein, generally, in the language of the Kevised Statutes, that, according to his informa- tion' and belief, the circumstances of the executor are so precarious as not to afford adequate security for the due administration of the es- tate. (^) And, at any rate, if the party desire to have the executor en- joined, pursuant to the above quoted provision of the law of 1837, he should set forth fully, in his petition, the facts on which he founds his complaint against the executor, and should make out at least a 'prima facie case for his removal, or for requiring him to give security. The petition, in such case, should contain a prayer for the proper order en- joining the executor, and should also be under oath. (For form of the petition, see Appendix, No. 103.) On filing the petition with the surrogate the citation issues. An or- der for issuing the same must be entered in the minutes. (For forms of the order and of the citation, see Appendix, No. 104.) Before granting the order restraining the executor, if the same be asked for, the surrogate may reqxiire other evidence besides that fur- nished by the petition. Such evidence may be presented by the affida- vits of persons acquainted with the circumstances of the ease, substan- tiating the charges in the petition. If the petition and such evidence, if required, be deemed sufficient by the surrogate to authorize him to enjoin the executor, he will make an order accordingly. (For form of such order, see Appendix, No. 105.) The order must be served on the executor. A copy of the petition should be served on the executor at the same time with the service of the citation, as otherwise the executor, on the return day of the citation, will be entitled to an adjournment to enable him to inform himself of the complaint on which the proceedings are founded. Ou the return day of the citation, if the executor fail to appear, on proof of due service of the citation upon him, the matter will be heard ex parte^ and the surrogate will make the proper order in the case upon the complaint and evidence furnished by the petitioner. The surrogate should give to the executor an opportunity to put in a sworn answer to the petition.(^) If both parties appear, issue may be joined as to the interests of the petitioner in the estate, or as to the competency of the executor, or the adequacy of his circumstances, as security for his due administration of the estate, or the fact of his removal or intention to remove from this state, and witnesses may be examined on either side as in other cases. A very small interest, it is presumed, will be siifficient to sustain the proceedings on the part of the petitioner. Any person interested in the estate of a testator, may apply to the surrogate for an order, requiring the executor to show cause why he, should not be superseded, on the ground that his circumstances are so precarious, as not to afford ade- quate security for the due administration of the estate. And an appa- rent interest, positively sworn to, will be sufficient to justify the order ; and the validity of the claim of the petitioner will not be tried on such (p) CoUgrone v. SbrUm, 11 Paige, 26L 598 PROCEEDINGS FOR THE REMOVAL OF AN BXECUTOE. an application. A mere allegation of irresponsibility, ho-wever, is not enough to compel an executor to give security ; if the allegation be de- nied the charges must be proved.(g') Where the executor, on the return of the citation, answers the pe- tition and denies the allegations therein, upon oath, the petitioner must produce proof to establish the truth of such allegations; and if he fail to do so, his petition should be dismissed. And the surrogate cannot require the executor to prove his- responsibility, before any doubt is raised as to such responsibility, by proof introduced by the petitioner.(?') With reference to compelling the executor to furnish security, the Chancellor, in MandeviUe^ Executor, &c., v. Mandeville,{s) ■which was an appeal by an executor from a decree of a surrogate ordering him to give security, has given the following comprehensive exposition of the pro- vision of the statutes now under consideration, and laid down the rule to be observed in respect to requiring security of executors on the ground of the inadequacy of their circumstances. He says : " I think the surrogate erred in this case, in supposing that the cir- cumstances of the appellant were so precarious as not to afford adequate security for his due administration of the estate of the decedent, accord- ing to the true construction of the provision of the Kevised Statutes under which this proceeding was instituted. (2 E. S. 72, sec. 18.) It certainly could not have been the intention of the Legislature to pro- hibit the granting of letters testamentary to any executors except such as are possessed of property of their own, to the full value of the estate which the testator has authorized and appointed them to administer; or that an executor should be superseded in his trust, or required to find security, whenever his property was reduced below that of the de- cedent. Such a construction of the statute would render it almost im- possible for a man of a large property to select an executor who would be both able and willing to assume the execution of the trust. The obvious meaning of the statute is, that an executor may be required to give security whenever the surrogate is satisfied that his circumstances are such as to render it doubtful whether the property wUl be safe in his hands, to be disposed of, or administered, as directed by the will.'^ The statute is applicable to the case of an executor who has not suf- ficient property, exclusive of the contingent interest of his wife, in the proceeds of the real estate of the testator, to pay his debts.(i) In deter- mining the question, whether or not the executor is in such precarious circumstances as to make it proper to require security, the proportion of the estate belonging to the executor by the provisions of the will, may be taken into consideration in estimating the exeeuto''s pecuniary means, — ^regard also being had to the extent of the claims existing against the estate, (m) If the evidence in the case do not show an interest in the petitioner to entitle him to demand security of the executor, or that the executor is incompetent, or that his circumstances are preoarioMS, or that he has. (s) Cotterdl v. Broclc, 1 Bradf. Suit. Rep. 148. (r) Golegrove v. Morton, 11 Paige, 261. («) 8 Paige, 415. (i) Holmes TT. OooTc, 2 Barb. Ob. Rep. 426. (u) Cotter^ T. Brock, 1 Bradl Surr. Rep. 148. PEOCEEDINGS FOE THE REMOVAL OF AN EXECUTOR. 599 removed or is about to remove from tMs state, the complaint will be dismissed, and tlie order of injunction vacated, and tbe petitioner should be ordered to pay the fees and expenses of the proceeding and the ex- ecutor's costs. Such payment, if ordered, may be enforced by attach- ment. If it be shown that the executor has become legally incompetent, ac- cording to the provisions of the section of the statute prescribing the qualifications of executors, hereinbefore given in connection with the subject of granting letters testamentary, (w) then an order must be made by the surrogate, which must be entered in his minutes, superseding the letters testamentary issued to such executor. The surrogate can- not take a bond in such a case. Where it appeared, before a surrogate, on an application by legatees for the removal of an executor, &c., that no inventory had been filed by him ; that the executor was squandering the estate in useless litiga- tion ; that he had delivered over to his attorney all the money and mortgages of the estate, and was ignorant as to what mortgages be- longed to the estate ; that he could not read writing, or write good English ; and that he had little or no property, was not in any steady or useful employment, kept no accounts, and had no knowledge of the condition or disposition of the trust property, except what was derived from his attorney ; it was held that those facts were sufficient to jus- tify the removal of the executor, on the ground of improvidence and incompetency.(iy) An executor who is a gambler may, doubtless, likewise be removed on the ground of improvidence,(a;) and for a stronger reason than that which denies him letters of administration — because, as executor, he does not give security. If it appear that the circumstances of the executor are so precarious as not to afford adequate security for his due administration of the es- tate, or that he has removed or is about to remove from this state, then the order will be that the executor give bond with sureties, like those required by law of administrators, within a certain time, not exceeding five days. (For form of the order, see Appendix, No. 106.) If the executor propose to comply with the order to give security, then the same proceedings are to be had to fix the penalty of the bond, and to ascertain the sufficiency of the sureties, as those heretofore de- scribed in these pages, on application for administration in cases of in- testacy.(2/) The statute does not fix the amount of the security to be given by an executor who is irresponsible ; except that it cannot be less than twice the value of the personal estate. But where the pro- ceeds of real estate may come into the hands of an executor, by virtue of his trust, for the benefit of others, security in double the amount of such proceeds is not unreasonable, when the executor has become in- solvent ; unless the amount which is to come to his hands is very large. In that case, security to a limited amount beyond the fund to be admin- istered, should be deemed sufficient, (s) (v) See ante, p. 196; 2 R. S. 69 ; 4th ed. 225, sec. 3. {lo) Emerson v. Bowers, 14 Barb. S C. R. 658. (a;) McMdhon against Hmrison, 2 Selden, 443. (y) See ante, pp. 223, 226. («) Holmes v. Cooh, 2 Barb. Ch. Rep. 426, 429. 600 PROCEEDINGS AGAINST ADMINISTRATORS. The statute directs that the bond shall be like those required by law from administrators. The bond, therefore, must be taken in the name of the people ; and conditioned that the executor shall faithfully exe- cute the trust reposed in him as such, and that he will obey all orders of the surrogate touching the administration of the estate committed to him. It is a bond for the benefit of every person interested in the es- tate of the testator, and not merely for the benefit of the distributees, upon whose application the surrogate directs security to be given. In- deed, if taken only in a sum sufficient to cover the interest of the pe- titioner, upon whose application the order for security was obtained, it will not afford him adequate protection. For the whole amount re- covered, against the sureties would have to be distributed among all those who had suffered by the executor's mal-administration of the funds, (zs) If the executor neglect to give the proper bond within the time lim- ited by the order, then a decree will be made by the surrogate super- seding his letters testamentary. (For form of such deci-ee, see Appen- dix, No. 107.) The fees and expenses of the proceedings and the pe- titioner's costs, will, in most cases, have to come out of the estate of the deceased. It is presumed that where the executor unduly resists the application to have him removed, or to compel him to give security, such fees and expenses and costs may be charged upon him personally. Of Proceedings to Compel an Administrator whose Sureties are Insufficient to give further Sureties, or for want of such further Sureties, to re- move him from his Trust. By the 25th section of the law of 1837, when any person interested in the estate of the deceased, shall discover that the sureties of any ad- ministrator are becoming insolvent, that they have removed,, or are about to remove from this state, or that for any other cause they are insufficient, such person may make application to the surrogate who granted the letters of administration for relief.(a) By section 26, if the surrogate shall receive satisfactory evidence that the matter requires investigation, he shall issue a citation to such administrator, requiring him to appear before such surrogate, at a time and place to be therein specified, to show cause why he should not give further sureties, or be superseded in the administration ; which citation shall be served personally on the administrator, at least six days before the return day thereof; or, if he shall have absconded, or cannot be found, it may be served by leaving a copy at his last place of residence. The application for relief, under the 25th section, should be under oath, and should state fully the facts as to the insolvency of the sure- ties of the administrator, or as to their rfemoval from this state, or as to any other supposed cause of their insufficiency, so as to furnish com- petent evidence to the surrogate that the matter requires investigation ; and if such facts are not within the knowledge of the party, he should {tz) Holmes v. Cooh 2 Barb. Oh. Rep. 426, 429. (a) S. L. 1837, 52^ 2 E. S. (4th ed.} 263. PROCEEDINGS BY SUEETIES TOE RELIEF. 601 accompany his petition with the affidavits of other persons acquainted with the circumstances. Unless there be proof of the necessity for the proceedings, the surrogate cannot issue the citation. The prayer of the petition will be for relief, pursuant to the statute ; and if the party desire to have the administrator enjoined, pursuant to the 61st section above quoted of the law of 1837, he should include a prayer for an order so enjoining the administrator, in his petition. (For form of the petition, see Appendix, No. 108.) If the surrogate be satisfied that the matter requires investigation, he issues the citation ; and if an order enjoining the administrator is asked for, and the case is a proper one for such order, he allows the same. (For form of the order for issuing the citation, and form of the citation, see Appendix, No. 109.) The form of the order of injunction will be similar to that in the last preceding case. (See Appendix, No. 105.) The citation must be served according to the provisions of the 26th section above quoted. By the 27th section, on the return of the citation, or at such other time as the surrogate shall appoint, he shall proceed to hear the proofs and allegations of the parties ; and if it shall satisfactorily appear that the sureties are, for any cause, insufficient, the surrogate may make an order requiring such administrator to give further sureties, in the usual form, within a reasonable time, not exceeding five days.(&) (For form of the order requiring further sureties, see Appendix, No. 110.) By the 28th section, if such administrator neglect to give further sureties, to the satisfaction of the surrogate, within the time prescribed, the surrogate shall, by order, revoke the letters of administration issued to such administrator, whose authority and rights as an administrator shall thereupon cease. (For form of the order revoking the letters of administration, see Appendix, No. 111.) The reader Avill find the remarks above made, with reference to the payment of fees and costs, on proceedings to compel an executor to give security, or to remove him from his trust, applicable, to a certain extent, to proceedings under the sections which have now been con- sidered. Of Proceedings by a Surety of an Administrator, to he released from Re- sponsibility for the future Acts or Defaults of the Administrator, and to compel such Administrator to give new Sureties, and, for want of new Sureties, to remove him from his Trust. By the 29th section of the law of 1837, when either or all of the sureties of any administrator shall desire to be released from responsi- bility, on account of the future acts or defaults of such administrator, they may make application to the surrogate who granted letters of ad- ministration, for relief (c) (For form of the application under this pro- vision, see Appendix, No. 112) By the 30th section, the surrogate shall thereupon issue a citation to such administrator, requiring him to appear before such surrogate, at a (6) S. L. 1837, 529; 2 R. S. (4th ed.) 263. (c) S. L. 1837, 629 ; 2 E. S. (4th ed.) 263. 602 PROCEEDINGS BY SURETIES FOR EELIEE. time and place to be therein specified, and give new sureties, in the usual form, for the faithful discharge of his duties ; which citation shall be served in the manner prescribed by the 26th section of this act.(i) (For form of the order for issuing the citation, and form of the cita- tion under this provision, see Appendix, No. 113.) By section 31, if such administrator shall give new sureties, to the satisfaction of the surrogate, the surrogate' may thereupon make 'an order that the surety or sureties who applied for relief in the premiseg, shall not be liable on their bond for any subsequent act, default or mis- conduct of such administrator.(e) (For form of the order releasing the sureties, see Appendix, No. 114.) By section 32, if such administrator neglect to give new sureties to the satisfaction of the surrogate, on the return of the citation, or within such reasonable time as the surrogate shall allow, not exceeding five days, the surrogate shall, by order, revoke the letters of administration issued to such administrator, whose authority and rights as an adminis- trator shall thereupon cease.(/) (For forms of the orders under this section, see Appendix, No. 115.) By section SB of the law of 1837, in all cases in which letters of ad- ministration shall have been granted to more than one person, and the surrogate granting the same shall have revoked the same, in pursuance of the previous provisions of this s.c,t,{g) as to part only of such admin- istrators, the person or persons whose letters have not been revoked, shall have the further administration of the respective estates subse- quent to such revocation. Any suit brought previous to such revoca- tion, may be continued the same as if no such revocation had taken place. In all other cases of revocation as aforesaid, the surrogate shall grant administration of the goods, chattels and credits not administered, in the manner prescribed by law.(/i) By section 34, whenever it shall appear to the surrogate that letters of administration or letters of guardianship have been granted on or by reason of false representations made by the person to whom the same were granted : and also whenever it shall appear that an administrator or guardian has become incompetent by law to act as such, by reason of drunkenness, improvidence or want of understanding, the surrogate shall have power to revoke such letters. And in case a woman marries after being appointed an executrix, administratrix or guardian, the surrogate, on the application of any person interested, shall have power to revoke such appointment.(4) It would seem, that where letters of administration are granted on a mistake of facts, that this may be brought within the spirit of mis- representation, by reason of Avhich the surrogate could revoke them under this provision.(y) Proceedings for the revocation of letters testamentary, or of admin- istration,, under this section, will be similar in all respects to those (d) S. L. 183T, 529 ; 2 R. S. (4th ed.) 264. (e) S. L. ISSt, 530 : 2 R. S. (4th ed.) 264. (/) lb. (g) These are the provisions of the sections, numbered from 25 to 33, above given. (A) S. L. 1831, 530 ; 2 R. S. (4th ed.) 264. (i) S. L. 1837, 530^ 2 R. S. (4th ed.) 264. (j) Perky v. Sands, 3 Edw. Vh. Rep. 325. PROCEEDINGS BY SURETIES FOR RELIEF. 603 above described for superseding tbe letters testamentary issued to an executor, on the ground of tbe incompetency of such executor, and tbe forms there referred to may easily be adapted to such pro- ceedings. By section 35, whenever it shall appear that the penalty of the bond taken from an executor, administrator or guardian, is inadequate in amount, the surrogate shall have power to make an order requiring him to give additional security for the faithful performance of his duty as such executor, administrator or guardian ; and in case of non- compliance with such order, the surrogate may revoke the letters granted to him. (Jc) The proceedings to compel an executor or administrator to givfe ad- ditional security under this section, and in case of non-compliance to remove him from his trust, will be similar to those above described for compelling an administrator to give new sureties where his present sureties are insuf&cient, and similar forms may be used to those there referred to. By section 68, art. 3, title 3, chap. 6, part 2, of the Eevised Stat- utes, whenever the authority of an executor or administrator shall cease, or be revoked or superseded for any reason, he may be cited to account before a surrogate, at the instance of the person succeeding to the administration of the same estate, in like manner as hereinbefore provided for a creditor.(Z) By section 69, in every such case the executor or administrator may cite the person succeeding to the administration of the same estate, to attend an account and settlement of his proceedings before the surro- gate, by giving such reasonable notice as the surrogate shall direct, and by serving and publishing, in the manner hereinbefore provided, a citation to creditors and others ; and such settlement and account shall have the like effect in all respects as in the case of a settlement at the instance of a creditor. By the 36th section of the law of 1837,(m) the surrogate shall have the same jurisdiction in requiring any administrator whose letters have been revoked as hereinbefore provided to render an account of his proceedings, as is conferred by the third article of title three, chapter six, of the second part of the Eevised Statutes. The new administra- tor shall, within a reasonable time, or in case of his neglect, the other person mentioned in such article, may make application for such ac- count ; and such application may be made at any time after the revo- cation of the letters as aforesaid. The proceedings for compelling an executor or administrator who has been removed to account, and for the settlement of his accounts, will be similar to those described in the previous chapter of this work, on the rendering and settling of the accounts of executors and admin- istrators. The surrogate will usually direct the same number of days' notice of the settlement of the account to be given to the newly ap- pointed executor or administrator, under the above quoted 69th section, m is required to be given to parties in interest residing in the county. (ft) S. L. 183Y, 530 ; 2 R. S. (4th ed.) 264. (l) 2 R. S. 95 ; 4th ed. 280, (m) S. L. 183Y, 531 ; 2 R, S. (4th ed.) p. 280. 604 COSTS AND FEES IN THE SURROGATE'S COURT. Such direction may be included in the order for the issuing of the cita- tion. With the exception of this particular, in all other respects the proceedings will be like those above referred to. ' CHAPTER XV. OF COSTS AND PEES IN THE SURROGATE'S COURT, AND OP THE LIABILITY OF EXECUTORS AND ADMINISTRATORS TO THE PAYMENT OP COSTS, Of Costs and Fees in the Surrogates' Courts. Previous to the Eevised Statutes, it was not the practice of the Surrogates' Courts to give costs in favor of one party against another, in testamentary matters. Costs are given by the ecclesiastical courts in England, in such cases, both in original suits and on appeals ; but it seems that such a practice was never adopted in this state.(a) By the Revised Statutes, as has been seen at a previous page of this work, in connection with the subject of the powers and jurisdiction of surrogates, (5) in all cases of contest before a Surrogate's Court, such court may award costs to the party in the judgment of the court enti- tled thereto, to be paid either by the other party, personally, or out of the estate which shall be the subject of such controversy. ITiider this provision costs were allowed and taxed, at the rate fixed for similar services in the Court of Chancery, although such rate or any other was not prescribed by the statute. By the 70th section of the act of the 16th May, 1837, "concerning the proof of wills," &c., as has also heretofore been seen, it was pro- vided, that in all cases where the surrogate is authorized by law to award costs, he shall tax the costs at the same rate allowed for similar services in the courts of common pleas.(c) At the time of the passage of the last mentioned act, the provisions of the statute declaring the rate to be allowed for the services referred to in the courts of common pleas, could, without difficulty, be applied to the allowance of costs in the Surrogate's Court. Those provisions were repealed by the act " concerning costs," &c., passed 14th May, 1840,(c?) and there are now scarcely any provisions of the statutes distinctly applicable to allow- ances for services in the courts of common pleas, similar to those ren- dered in the Surrogates' Courts, nor any otherwise fixing the rate of taxation of costs in the Surrogates' Courts. At the present time, by the operation of the constitution and the Code, the Court of Chancery and the courts of common pleas are no longer in existence, and the costs of proceedings to judgment, except on appeals, are the same in all courts of record.(e) la) See 3 Paige, 185; 6 Oowen, 719; X Bradf. Suit. Rep. 31. (6) Ante, p. 32. (c) S. L. ISSt, 536; 2 R. S. (4th ed.) 422; Amte,.^.Z2. Id) S. L. 1840, 327, 336, sec. 40. (e) Constitution, art. xiv ; Code, title 10, COSTS AND FEES IN THE SUREOGATE'S COURT. 605 It bas been determined, however, that costs are still to be taxed in the Surrogates' Courts at the same rates as were allowed for similar services in the, courts of common pleas, in the year 1837. (/) In the Surrogates' Courts, there are not any stated terms. In a case of contest, attorneys' or proctors' fees can be taxed only as for a single trial, except for services in relation to motions or interlocutory pro- ceedings. A charge for copies of the depositions, or minutes of the evidence taken by the attorney or proctor in the course of the trial, is not taxable.(/) It will be observed, that the'provision above q;uoted from the Ee- vised Statutes allows costs in the Surrogates' Courts "in all cases of contest.". This is construed to prohibit such allowance in any other cases. The power to allow costs at all depends upon the statute, and is to be limited to the cases there specified. In the ordinary proceed- ings in the Surrogate's Court, there being no contest, no costs are al- lowable. The surrogate awards costs upon the principles which govern courts of eq^uity in similar cases. Thei-e has repeatedly been occasion, in dis- cussing the various proceedings in the Surrogate's Court, treated of in this work, to point out cases in which it was considered that one or the other party, or the estate, should be charged with costs ; and, in the precedents of orders to be found in the Appendix, provision will frequently be found for compelling payment of the costs of the con- troversy. The surrogate is not authorized to decree the payment of costs out of the estate of the decedent, in the hands of his personal representa- tives, to the exclusion of their commissions for receiving and paying out moneys, if the amount in their hands is not sufficient to pay both. But if it is a proper case to charge them with the costs of the adverse party, upon the proceedings before the surrogate, there should be a de- cree against them, directly and personally, for the payment of such costs, (p') For is the surrogate, upon the settlement of the accounts of execu- tors or administrators, before him, authorized to make an arbitrary al- lowance for services and counsel fees, to be paid by one party to the other, or to be paid out of the estate, without reference to the taxable costs allowed for similar services in other courts.((/) The general principle is, as was stated in a previous chapter, that executors are entitled to their costs, in settling their accounts, so far as they are not in fault ; and bound to pay costs, as to such inquiries in the action as are caused by their breach of trust.(/i) And a creditor, calling an administrator to an account, cannot recover costs unless he obtains a dividend. (AA) It is stated, by authority, that by the policy of the law relating to Surrogates' Courts, the only mode of enforcing the payment of costs arising in their courts, (except in certain cases where bonds are di- (/) Western v. Somaine, 1 Bradf. Surr. Rep. 31. (g) Ealsey T. Tan Amringe, 6 Paige, 12. {h) Ray t. Van Hook, 9 How. Praa Rep. 42T. See, also, Griffith v. Beedher, 10 Barb S. 0. E. 432. ' (ftft) 10 Barb. S. C. E. 432. 806 MABILITT OP EXECUTORS AND ADMINISTRATOES FOE COSTS. rected to be taken,) is by process of attacliment.(i) Proceedings for compelling payment of costs, by attachment, were considered in ttie case of the revocation of the probate of a will, on allegations of next of kin,(y) and the rules there laid down, and the forms and precedents furnished, may easily be applied and adapted to other cases* The cases in which bonds for costs are given, whereby the payment of such costs may be enforced, are those of appeals from the decisions of surrogates, which remain to be treated of hereafter, when the subject of appeals comes to be considered. It has been decided by the surrogate of the county of New York, and, on appeal, by the Chancellor, that the provisions of the statutes, ffi requiring non-resident plaintiffs to file security for costs, do not extend or apply to proceedings in the Surrogates' Courts, (Z) Fees of Surrogates, The fees to which surrogates are entitled, for services done or pe^ formed by them, are prescribed by the statute, passed 7th May, 1844, which will be found at large in the Appendix to this volume. The surrogate is required, upon the written request of the person or persons liable to pay the same, to procure his.bill for fees and charges, in any case to be taxed by the first judge of the county courts, or hj some other officer authorized to tax bills of costs in the Supreme Court, re- siding in the county, upon due service of a copy of such bill and notice of taxation on the executor, administrator, or other person liable to pay the same, at least six days before such taxation ; the expenses of which taxation must be paid by the person requiring the same.(?ft) Of the Liability of Executors and Administrators for Costs in Suits in Courts other than the Surrogates^ Courts. The liability of executors and administrators for costs in suits in courts other than the Surrogate's Court, is now to be considered. With respect to such -liability, in actions at law brought by executors or administrators, in ^vhich they failed, the statute formerly provided as follows : Sec. 17. [Sec. 16.] In all actions and proceedings in which the plain- tiff would be entitled to costs, upon a judgment rendered in his favor, if, after the appearance of the defendant, such plaintiff be non-suited, discontinue his suit, be non-prossed, or judgment pass against him on Verdict, demurrer or otherwise ; or, in case a plaintiff recovers judg- ment, but not a sufficient sum to entitle him to any costs, the defend- ant shall have judgment to recover against the plaintiff the full costs of the court in which the action shall be, which shall have the like effect as all other judgments. Sec. 18. [Sec. 17.] But the last section shall not extend to give a de- (i) Kirtland's Surrogate, 3i8. (j) See ante, p, 595, ik) 2 R. S. 620 ; 4th ed. 821. (i) See Westeroelt y, Gre^g, 1 Barb. Oh. Rep, 469, (m) S. L. 1843, 262, LIABILITY OP EXECTTTORS AltD ADMIlflSTRATORS FOE COSTS, 607 fendant costs against executors or administrators, necessarily prosecu' ■ting in the right of their testator or intestate, unless upon special ap- plication the court shall award costs against them for wantonly bring- ing any suit, or for unnecessarily suffering a non-suit or non-pros, or for bad faith in bringing or conducting the cause.(n) The Code of Procedure, as amended in 1851 and 1852, abolished these provisions of the Revised Statutes, exonerating from costs persons who sue in a representative capacity, and placed such persons upon the same footing in this respect as other plaintiffs. The provisions in question of the Code regulate the liability of executors and administrators for costs, whether as plaintiffs or defendants. After specifying by the 304th section the cases in which costs shall be allowed of course to the plain- tiff upon a recovery, the statute proceeds to provide : Sec. 305. Costs shall be allowed of course to the defendant in the ac- tions mentioned in the last section, unless the plaintiff be entitled to costs therein. A subsequent section provides as follows : Sec. 317. In an action prosecuted or defended by an executor, ad- ministrator, trustee of an express trust, or a person expressly authorized by statute, costs shall be recovered, as in an action by and against a person prosecuting or defending in his own right, but such costs shall be chargeable only upon or collected of the estate, fund or party repre- sented, unless the court shall direct the same to be paid by the plaintiff or defendant personally, for mismanagement or bad faith in such action or defence. But this section shall not be construed to allow costs against executors or administrators, where they are now exempted therefrom, by section forty-one of title three, chapter six of the second part of the Revised Statutes ; and whenever any claim against a de- ceased person shall be referred pursuant to the provisions of the Re- vised Statutes, the prevailing party shall be entitled to recover the fees of referees and witnesses and other necessary disbursements, to be taxed according to law. And the court may, in its discretion, in the cases mentioned in this section, require the plaintiff to give security for costs. This section is not to be interpreted as giving costs against a plaintiff, only where the parties on both sides are in a representative character, as in a suit by an executor against a trustee, or the like. The language is disjunctive ; it applies to a suit either by or against an executor, &c., without regard to the character of the adverse party. As to actions by or against persons in their own right, whether their suits were against executors, or they were sued by executors, the previous sections had, in like manner, defined their liabilities without reference to the charac- ter of their adverse parties. A plaintiff therefore, who sues as execu- tor, on judgment being rendered against him, is, by this statute, liable for costs, either personally or to be paid by the e-state, in hll cases where one suing in his own right would pay costs.(o) In Darby v. Gondit,{p) the Superior Court of the city of JSTew York, seem to have considered, that the last clause of this section being the amendment of 1852, will not warrant the court in demanding secu- («) 2 R. S. 615. (o) Gurus' Executor, &c., V. Button, 4 Sandf. Sup. Gt, Rep. '119. (p) 1 Duer, 599. 608 LIABILITY OP EXECUTOKS AND ADMINISTRATORS FOR COSTS. rity of an executor or administrator, plaintiff, unless mismanagement or bad faith, can be imputed to such plaintiff, and that security ought not to be required even when the estate is insolvent, unless it also ap- pears that the plaintiff is insolvent. It may be, however, that it was the intention of the Legislature to protect a defendant as far as securi- ty for costs would go, as much against the unfounded claims of an in- solvent estate, as against the mismanagement or bad faith of the plaintiff. An executor or administrator whose proceedings are set aside on motion as irregular, will be ordered to pay the costs of the motion.(g) So, executors or administrators have always been held liable to costs upon interlocutory motions.(r) It was formerly held to be irregular, in most cases, for a defendant to enter up a judgment for costs against an executor or administrator,' plaintiff, without a special application to the court for such costs. An executor was liable for costs only where he prosecuted in bad faith, with full knowledge that he had no cause of action, or where the cause of action accrued wholly after the testator's death, and might have been prosecuted in his individual name.(s) And in such cases, a special ap- plication to enter such judgment must have been made to the court.(i) And, under the present statute, where it is proposed to hold the execu- tor or administrator personally liable for mismanagement or bad faith, an application to the court for that purpose will be necessary. Plaintiffs who live out of the jurisdiction of the court, may be com- pelled to give security for costs, though such plaintiffs sue as execu- tors.(M) With respect to the liability of executors and administrators to the payment of costs in actions at law against them : In a preceding page of this work, in connection with the subject of the duties of the executor or administrator relative to the payment of the debts of the deceased,(i') it appeared that, by sec. 34, 2 K. S. 88, executors and administrators, after the expiration of six months from the granting of their letters testamentary or of administration, are to give notice to the creditors of the deceased requiring them to exhibit their claims, with the vouchers thereof, to such executor or administra- tor, at his residence or place of business ; that, by the 35th section, the executor or administrator may require satisfactory vouchers not only, but also the affidavit of the claimant that such claim is justly due, that no payments have been made, and that there are no off-sets to his knowledge ; that all this is not conclusive upon the executor or ad- ministrator ; but, by the 36th section, if he doubt the justice of any claim, he may enter into an agreement to refer the same to referees, who are to be approved by the surrogate, and upon filing such agree- ment in the office of a clerk of the Supreme Court or a court of com- mon pleas, a rule shall be entered referring the matters in controversy to such referees. ' That the 37th section directs that the referees shall (g) Tarick v. Bodine, 3. Hill, 444. (r) Tidd, 979, 9th ed. (s) Keichwm v. Xetchum, 4 Ooweu, 87. (t) Pahner v. PcAmer, 5 Wen. 91. («) Wins, on Exrs..l620j and casi (v) Ante, pp. 323, 347^ chap. 10. LIABILITY OF EXECUTOES AND ADMINISTRATOIIS FOE COSTS. 609 thereupon proceed in the same manner in all respects, shall have the same powers, receive the same compensation, and be subject to the same control as if the reference had been made in an action in which the court might direct a reference ; that the court may set aside the report of the referees, or confirm the same, and adjudge costs as in actions against executors, and that the judgment of the court thereupon shall be valid and effectual in all respects as if the same had been rendered in a suit commenced by the ordinary process; that, by section 38, every claim presented to the executor and rejected by him, must be prosecuted within six months, if then due ; if not, then within six months after some part or the whole shall become due, or the plaintiff Cannot re- cover at all ; that, by section 39, if a debt shall not be presented within the six months after the first publication of the executor's notice, the executor may pay debts of an inferior degree or legacies, without being chargeable in any suit brought for such debt, for such application of the assets in his hands ; and that, by section 40, the plaintiff, in an action brought for a debt so not presented, shall recover only to the amount of such assets in the executor's hands at the commencement of his suit. The next section provides as follows, having reference in the first clause thereof to the preceding 40th section. Sec. 41. In such suit, no costs shall be recovered against the defend- ants ; nor shall any costs be recovered in any suit at law against any executors or administrators, to be levied of their property or of the property of the deceased, unless it appear that the demand on which the action was founded was presented within the time aforesaid, and that its payment was unreasonably resisted or neglected, or that the defendant refused to refer the same pursuant to the preceding provi- sions ; in which case the court may direct such costs to be levied of the property of the defendants, or of the deceased, as shall be just, hav- ing reference to the facts that appeared on the trial. If the action be brought in the Supreme Court, such facts shall be certified by the judge before whom the trial shall have been had.(w) This is the provision of the Revised Statutes exempting executors and administrators, defendants, from liability for costs referred to in the 817th section of the Code above recited. By sec. 38, [sec. 37,] 2 E. S. 618, in suits against executors and administrators, in which the plain- tiff shall recover costs, the judgment shall be that such costs be collected of the assets of the deceased ; unless, in the cases provided for in the third title of the sixth chapter of the second part of the Revised Statutes,, the court shall award such costs to be paid by the executors or admin- istrators. Executors and administrators have been regarded with great favor and indulgence by the cases which have arisen and been decided under these provisions of the statute. In Potter v. Eiz, et al., Administrators, &c.,{x) the declaration was on a promissory note given by the intestate, to which there was a plea of the general issue, with notice of special matter ; and afterwards, before the circuit, the defendants gave a reUcta and cognovit, and it was held (Iff) 2R. S. 90; 4th ed. 275. (a;) 5 Wend. 74. * 29 610 [XJ.A.BILITT OF EXECUTORS AiJD ADMINISTRATORS FOR COSTS^ that as no unreasonable resistance or neglect was cliargeaMe upon tlie defendants, they were not liable for costs. And the court said that where there is a trial, the facts relied on to entitle the plaintiff to costa under the above 41st section, must be certified by the circuit judge as directed by the section ; but in other cases of cognovit or default not provided for, the facts must be shown according to the ordinary prac- tice of the court on a special application, by motion founded on affida- vit. And that the party claiming costs against executors or adminis- trators must show himself entitled, by proving that he presented hia demand in due season, and that the defendants were guilty of a violar tion of their duty, either by unreasonably resisting or neglecting its payment, or by refusing to refer the same. In Nicholson v. Showerman, Administrator, defy) the action was on a promissory note given by the intesta,te, and there was a report of re- ferees for the plaintiff. On a motion for costs against the administra- tor, the plaintiff showed, by the affidavit of the attorney, and the certi- ficate of the referees, that it was proved, on the hearing that payment of the note was demanded of the administrator within six months after it became due ; that he answered that the estate of the intestate was not liable to pay the note, and that he would contest the same. On the hearing, the defendant denied the making of the note by the intes- tate, and endeavored to establish the defence that the consideration of the note had failed, in whole or in part, and that he had fully admin- istered. The court considered that it was not shown that the demand of the plaintiff was unreasonably resisted or neglected. " The action," said Sutherland, J., " was defended upon the merits, and although the defence. failed, it does not necessarily follow that it was improper to have made it ; for aught that appears, the evidence in the case may have been nicely balanced." In Robert v. Ditmas, Administratrix, &c.,{z) the claimant was a cred- itor of the intestate, and demanded a sum, as due to him, exceeding $200. The matter in controversy was referred to three disinterested persons, in conformity to the above quoted provisions of the statutes. The referees, after hearing the parties, made a report in favor of the creditor or claimant for $76 07. Within a few days after the making of the report, the administratrix tendered the amount so reported to the claimant, who refused to receive the same, unless the costs of the refer- ence were also paid, which the administratrix refusing to pay, a rule for costs was asked of the court. The defendant was charged by the plaintiff with unreasonable resistance and neglect, and there was some controversy on this point. It was, however, conceded that the plaintiff presented his first account in the month of April, 1830, and the de- fendant her first account in May, 1830; the plaintiff's second account was delivered in September, 1831, the defendant's second account in November, 1831. 'The offer to refer was made and accepted in De- cember, 1831. Subsequently to that time, there was no delay on the part of the defendant ; and, when the report was made, payment was promptly offered, which was refused without the costs, and those the (j) 6 Wend. 554. (i) 1 Wend. 522. LIABILITT OF EXECUTORS AND ADMINISTRATORS FOR COSTS. 611 defendant refused to pay. The plaintiff complained of neglect on the part of the defendant, because she or her agent did not seek the wit- ness to whom the plaintiff referred them . The defendant's agent stated that he offered to allow all such charges as should be substantiated by affidavit. It also appeared that the plaintiff claimed upwards of $200, and resisted a claim of $100 for the services of the intestate. The re- ferees allowed the defendant's charge, and must have disallowed some of the plaintiff's charges, as the report was only $76. On the whole case, it was decided that the defendant was not chargeable with costs; and Savage, Ch. J., said: " The statute, I apprehend, cannot be construed to subject executors and administrators to costs, unless they are guilty of a violation of duty. If a creditor presents a claim, known to be a fair one, and there is property enough to pay it, not liable to pay debts of a higher class, it is the duty of the executor or administrator to pay it, and a refusal to pay, under such circumstances, I think, would be unreasonable ; but if the executor or administrator doubts the correctness of the claim, the statute provides, that not only the vouchers may be required, but also the affidavit of the claimant If the executor or administrator should still remain unsatisfied, he may resist ; and if, upon the trial, it shall appear that he had good reason for such resistance, it can never be called unreasonable. If, for instance, the plaintiff should fail, to sub- stantiate his claim to the amount demanded, or the defendant should succeed in establishing a demand by way of off-set, which the plaintiff had refused to allow, such defendant could never be charged with un- reasonable resistance."(a) In WiJine v. Van Schaick, Administrator, <&c.,{b) the defendant, sued as an administrator, suffered a default, and the plaintiff taxed costs against him without obtaining an order of the court, entered judgment and issued an execution. The defendant moved to set aside the judg- ment and execution. The plaintiff read an affidavit, for the purpose of showing unreasonable delay in payment. But the court held, that executors and administrators are not liable to costs, unless it appear that the demand of the plaintiff had been unwarrantably resisted or neglected, or that the executor or administrator had refused to submit the matter to referees ; and that such facts must be shown to the court before judgment for costs be signed,(c) and will not be listened to in opposition to a motion to set aside a judgment entered without leave, as the defendant has the right to be heard on such question ; and set aside both the judgment and the .execution. In Mulheran's Executors v. Gillespie,{d) the doctrine is repeated, that judgment for costs cannot be entered of course, but must be specially moved for. In Swift V. Blair's Executrix,{e) the motion for costs against the ex- ecutrix was on an affidavit, stating that the defendant had refused to (a) 7 Wend. 528-9. See, also, to the same effect, Oomstock agt. Olmstead, 6 How. Prac. Eep. 77 ; Gndksh'ink agt. Gmikshank. S How. Prac. Rep. 360. (6) 9 Wend. 448. (c) 6 lb. 74. (d) 12 lb. 349, 355. <(e) Id. 278. 612 LIABILITY OF EXECUTORS AND ADMINISTRATORS FOR COSTS. arbitmie, &c. And the court said, " An executor or administrator is not bound to arbitrate ; lie can only be asked to refer, in tile manner presoribed by the statute. This motion, therefore, must be denied. When it is sought to subject an executor or administrator to costs, in- asmuch as they must come out of his own pocket, if granted — ^for it is only for neglect of duty that he can be subjected to costs — ^the party asking for the rule must bring himself strictly within the statute." In Foot & Bebee v. Gumaey-'s ]lJxecutors,{f) it was held that the certi- ficate of the circuit judge, under the above quoted 41st section, that the demand of the plaintift' had been unreasonably resisted by the execu- tors, should state the fact, and need not state the evidence of the fact; and that, if the evidence did not warrant the certificate, application must be made to the couiit to set it aside. In Carhart v. BlaisdelVs JiJxecutors,{g) the plaintiff claimed of the de- fendants between four and five hundred dollars. The defendants did not offer to pay anything. The cause was thereupon referred, pursu- ant to the above quoted 36th section; and the referees reported in favor of the plaintiff for $130, Avhich the defendants paid. .The refer- ees certified that " the demand of the plaintiff was unreasonably neg- lecfed and refused." On a motion for costs against the executors, it was considered that it was impossible to say that the payment of the plaintiff.'s demand was "unreasonably resisted or neglected," and the motion was denied ; and with regard to the certificate of the referees, and the above mentioned decision, in Foot v. Gumaer^s Executors, the eourt say, "But the referees, have certified that 'the demand of the plaintiff was unreasonably neglected and refused ;' and it is urged that this brings the case within the decision of thecourtin/^tio^v.ffumaer'* JExeeutors, 12 Wendell, 195. That case is not very fully reported, and it may be doubted whether the point on which the court intended to pass is stated with entire accuracy. The statute, sec. 41, declares that costs shall not be recovered against executors or administrators, except under particular circumstances : ' in which cases, the court may direct such costs to be levied of the property of the defendants, or of the de- ceased, as shall be just, having reference to the facts that appeared on the trial. If the action be brought in the Supreme Court, such facts shall be certified by the judge before whom the trial shall have been had.' This is not lil^e the case where the circuit judge is to certify a single fact, as that the title to land came in question on the trial. There the certificate of the judge is conclusive on the question of costs, and the court will not, on a collateral motion, inquire whether it was properly t ranted or not. But the statute has imposed on this court the duty of eciding in what cases executors shall pay costs, ' having reference to the facts that appeared on the trial ;' and, where tried at the circuit, 'such facts' are to be certified by the circuit judge. lie need not state all the evidence, but he must state the facts on which this court is to form its judgment of the propriety of ordering costs. The statute does not provide for a certificate in a case where there has been a reference. But if this cause had been tried at the circuit, a certificate stating noth- (/) 12 Wend. 195. 1^) 18 Wen. 631. MABILITT OF EXECUTORS AND ADMINISTRATORS FOR COSTS. 613 ing but the judge's conclusion from the facts proved, that the payment of the plaintiff's demand ' was unreasonably resisted or neglected, would not entitle the party to costs. This court must decide whether the facts made out a case within the statute for awarding costs or not. But in Harvey v. Shillman's executors,{h) where the defendant had taken out letters testamentary, but omitted to jfile an inventory, or give notice to creditors to exhibit their claims, &c., according to the 34th section of the statute above referred to, and there were ample assets which had been collected, and the plaintiff, who had an unliquidated demand against the estate, had, by her agent, demanded her debt of the defendant, who refused to pay or take any steps towards its settle- ment, though a reasonable time had been allowed for those purposes, and then brought a suit in assumpsit for the demand, against the ex' ecutor, which was referred by order of the circuit judge ; and the referees reported in her favor for $200 : on a motion for costs against the executor, these facts, with others, showing dilatory conduct on the part of the defendant, as to ad,iusting the claim, appearing both by the certificate of the referees and by affidavits ; it was held, that the omis- sion by the executor to publish the notice provided for by the 34:th section of the statute, excluded him from all benefit of exemption under the 41st section, and that the plaintiff was entitled to eossts, as in other cases, without showing that the demand had been unreasonably resisted or neglected, or that the defendant refused to refer the matter in con- troversy ; and that it was not necessary in such cases to produce the certificate of the circuit judge before whom the cause was tried, or other evidence, as in other cases, to enable the court to determine whether the costs should be awarded against the property of the de- fendant or of the deceased : that it was enough, in such cases, to show that the notice to exhibit claims had not been published. " I am of opinion, therefore," said Mr. Justice Cowen, in his decision, after considering the case with reference to the provisions of the stat- ute, 2 R. S. 88-9 90,(i) particularly of the 41st section, and to the pre- vious decisions, " that the 41st section has nothing to do with the case at bar ; nor has any part of the provisions connected with it in the same article. If it be provided for anywhere, we must look for the provision to some other head in the statute book. I think it is to be governed by the general statute of costs, 2 R. S. 508, sec. 1, 2d ed., as qualified by Id. 509, sec. 5, and by Id. 514, sec. 38. By sections 1 and 5, just cited, the plaintiff recovering in this court over fifty, and not more than two hundred and fifty dollars, is entitled to common pleas costs. That is the case of this plaintiff; but, stopping with sections 1 and 5, we should be left in doubt whether costs may be awarded, to eome from the pocket of the defendant, or from the assets of the estate which he represents. Therefore, the 38th section, (/) the provisions of which I have before noticed and cited at large, declares, that in the case of a plaintiff recovering costs in such a case as I have shown this to be, the judgment shall be to collect de bonis testaioris. We have no (h) 22 "Wen. 571. (j) See ante, p. 323 ; also,, supra, p. 609. (j) See supra, p. 609. 614 LIABILITY OP E2BCUT0ES AND ADMINISTRATOBS FOR COSTS. power to charge the defendants persowaZZy, for this last section express- ly denies us that power, except in cases where he comes within the statute concerning summary proceedings. It is entirely clear that this case belongs to another and distinct category. " The demand in question was unliquidated, and I do not deny that it was a fair subject of judicial inquiry, nor that the defendant and the estate of his testator should be protected from costs, had he brought himself within the 2 R. S. 29, et seq., I put the case on the ground that he has not so done." Costs, however, will not be allowed, on the ground that the execu- tors omitted to give the requisite notice for creditors to exhibit their plaims, if the suit was commenced before the time for giving notice had arrived.(^) And in Bulloch v. Bogardusil) it was determined, overruling the case of Harvey v. Skillman so far as it holds a contrary doctrine, that the omission of an executor or administrator to publish a notice, re- quiring the creditors of the deceased to exhibit their claims, pursuant to the 34th section of the statute, does not subject them or the estate to the costs of a suit subsequently brought ; that there are only two grounds for awarding costs against an executor or administrator :— 1. Where the claim has been presented, and payment has been unreason- ably resisted or neglected. 2. Where there has been a refusal to refer, the claim being disputed ; and that if the executor or administrator has no assets, costs cannot be given for a refusal to refer.(m) And this decision has been followed in numerous subsequent cases.(«i) In Belden v. Knowlton,{6) the suit was against an administratrix, on a check made by the intestate, dated some days after the day on which it was given. The intestate died the day after it was given. The administratrix put in an answer in the suit, setting up a variety of defences, for which there was no pretence, and among others, denying that she ever had any notice that the check was demanded and not paid. The plaintiffs recovered, but on a motion for costs against the adminis- tratrix, the court held, that inasmuch as it did not appear that any no- (&) Knapp V Cwrtiss, 6 Hill, 386. (I) 1 Denio, 216. (m) With deference it is submitted, that the reasoning in this decision can hardly be re- tarded as answering that of Mr. Justice Cowen, in IIo,ney -r. Skillman. Mr. Justice Beards- fey proceeds upon the ground, that the 41st section is the only authority for adjudging costs against executors and administrators, in suits against them. It is apprehended — and this is the position assumed by Mr. Justice Cowen — that the section in question applies to those cases only specified therein. That there may be other cases, is clearly contemplated by sec- tion 38, [sec. 31,] 2 R. S. 618, and in those cases it is respectfully urged — and such, again, is the sense of Mr. Justice Coweu's opinion — executors and administrators are liable for costs, in suits against them, the same as before the Revised Statutes, or the same as any other defendants, with the modification provided by that section. These positions of Mr. Justice Cowen may scarcely be said to be shaken by the arguments of Mr. Justice Beardeley.. The case of a suit against an executor or administrator, who had omitted to advertise far filaims, brought after the time within which he was authorized so to advertise, is. certainly » case not specified in the 4 1 st section. It is difficult to see wherein the rule applied to such a case by Mr. Justice Cowen, in Hwrvey v. Skillman, is erroneous. (n) See Wallace v. Markham, 1 Denio, 671-3; Russell v. Lam, 1 Barb. Sup. Ct. Rep. 519, 62< ; Van Vleck v. Burroughs, 6 Id. 341 ; Fort v. Gooding, 9 Id. 388, 399,; Snyder ■r. Toung, 4 How. Prac. Rep. 211 ; Lansing v. Gole, 3 Code Reporter, 246. But see Whiimare-^.Foose, 1 Denio, 1 59. (o) 3 Sandf. Sup. Ct. Rep. 758^ 1 Code Rep. (N. S.) 127. T.TABTT.TTV OF EXECUTORS AND ADMINISTBATOES BOB COSTS. 616 tice to the creditors was ever published, or that the plaintiffs ever pre- sented their claim to the defendant, the plaintiffs were not entitled to their costs of the action against the defendant. And even where the demand did not fall due until after the expira- tion of the publication of the notice for the exhibition of claims, it was held that the plaintiff was not entitled to recover his costs against the executors' defendants.(p) Again, to entitle a plaintiff to costs against an executor or adminis- trator, it must appear that the demand which had been presented for payment, or which the plaintiff had offered to refer, was substantially the same as that upon which the recovery was had.(g') Where, how- ever, in an action against administrators, the plaintiff's bill of par- ticulars differed from the account previously presented to them for pay- ment, in the charge of interest only, it was held a variance which could not be regarded, because interest is no part of an account, it is a mere incident or legal resu]t.(r) But where the application for costs against an executor or administrator, defendant, is upon the ground that he refused to refer, it must appear that an account, or some claim against the es- tate, which could be supported by vouchers and affidavits, was pre- sented to the executor or administrator before refusal to refer. A gen- eral vague demand of a gross sum is not sufficient.(rr) In Doan v. Hineh Administrators ^(s) costs were refused against ad- ministrators who had suffered a judgment by default, notwithstanding that the creditor had presented his claim within the prescribed -period, made affidavit of the existence of the debt, and offered to refer, where it appeared that the administrators admitted their liability, but requested a suit to be brought against a co-maker of the note, the claim in ques- tion, for whom they alleged the intestate had become bound solely as surety, offering to pay any deficiency there might be after the prosecu- tion of such suit. And in Knapp v. Ourtiss and others^ Executors of Smith,{ss) where a claim was presented to one of several executors, which he disputed, but declined to refer, saying he wished to consult with his co-executors be- fore doing so, and the creditor, without waiting a reasonable time for that purpose, commenced a suit and recovered ; it was held that he was not entitled to costs. It was further held, that if the creditor attempt to recover additional charges, not included in his offer to refer, he will lose the benefit of the offer ; and that executors will not waive their right to resist the allowance of costs, by attending the taxation, and ob- jecting to particular items. Again; a creditor entitled to recover costs against an executor or administrator, on account of having made an offer to refer, which was declined, does not lose his right to them by including in his declaration the common indebitatus counts, in addition to one on the precise de- mand offered to be referred, provided his claim to recover, on the trial, (p) Bradley v. SurweU, 3 Denio, 261. (q) Wallace v. MarlAam, 1 Denio, 671. (r) Lannmg v. Swa/rte, 9 How. Prae. Rep. 434. (rr) aruikshank against Cmikshank, 9 How. Pr. Rep. 350. (s) 22 Wend. 639. («s) 6 Hill, 3S6. 616 LIABILITY OF EXECUTORS AND ADMINISTRATORS FOE COSTS: is confined to that demand. But if he should serve a bill of particu- lars, claiming other demands, it seems he would lose his costs.(^) On the other hand, in Gansevoori v. Nelson and others, Executors, dccJu) where, in an action against the executors, upon a claim which had been duly presented according to the statute, they obtained an order extend- ing the time to plead, and afterwards pleaded the general issue, but finally suffered an inquest to be taken against them at the circuit, it was held, that inasmuch as no good reason was shown, on their part for doubting the justice of the claim, they were chargeable with having unreasonably resisted its payment, and that the creditor was, therefore, entitled to costs ; and that a statement, in the certificate of the judge who tried the cause, that payment was unreasonably resist-ed by the ex- ecutors, is not conclusive as to costs ; but the court must look beyond it, and consider the facts certified, in connection with other facts in re- lation to the question ; and the case of Foot v. Oumaer, above quoted, was distinctly overruled.(i;) And a creditor will not be required, as a condition to entitle him to costs, to ask executors to refer a claim, after the latter have rejected it as unjust and not due.(w;) In Rogers v. Holley,{x) which was a suit against an executor, where a report of referees was made in favor of the plaintiff, and he had been delayed by the defendant in entering judgment by a motion to set aside the report ; though the court did not consider it a fit case to award-costs against the plaintiff, yet they allowed him to take judg- ment for the interest of the sum reported due by the referees, the same as for costs. In suits against executors or administrators, the plaintiff cannot enter judgment for costs, without first obtaining leave from the court.(aa5) But error will not lie upon a judgment for costs entered up against an executor or administrator, without the order of the court. Such judg- ment is irregular, and, upon proper application, will be set aside ; but it is not error(2/) — nothing being said in the return, one way or the other, about a special application having or not having been made to the court below ; the superior court will intend that it was made.(yy) Under the above 317ui* section of the Code of Procedure, it has been considered that a plaintiff recovering against an executor or adminis- ter, upon a reference under the statute, is not, under any circumstances, entitled to costs, other than disbursements against the defendant ; that the plaintiff is limited in his recovery to the "fees of referees and Avit- nesses, and other necessary disbursements" specified in the section, and that aill other costs are excluded.(a) (f) Rartshome v. King, 1 Denio, 675. (u) 6 Hill, 389. (v) It is no answer to a motion for costs against an administrator, who had refused to re- fer a demand, pursuant to the statute, on which a judgment was afterwards recovered, that the defendant believed he had an equitaljle defence which, pending the suit at law, he had filed a bill in Chancery to enforce. Roierison v. Shiell, S Demo, 161. (w) Fori V. Gooding, 9 Barb. S. C. E. 388. (x) 19 Wend. 624. {xx) Knappv. Curtiss, 6 Hill, 386; Mulheran's Hxrs. v. GiOespie, 12 Wend. 349. ' (y) 12 Wend. 355. (yy) Jufiah V. Siagg^s Bxrs., 24 Wend. 239. (z) Avery against Smith, 9 How. Prac. Rep. 349. See, also, Lansing v. Cole, 3 Code Re- porter, 246. LIABILITY OF EXECUTOES AND ADMINISTRATORS FOR COSTS. 617 So, if the executor or administrator succeed upon the reference, he can recover against the plaintiff only the referees' and witnesses' fees and his disbursements.(3z) In an action at law by a legatee, against an executor or administra- tor, for the recovery of a legacy, as has before been seen,(a) the costs of the action, or of either party, shall be paid as the court may direct, out of the estate of the deceased, or by the defendants personally, if their refusal to pay such legacy, or their defence of the action, shall appear to have been unreasonable. It is proper, in this place, to refer to some cases respecting the liabil- ity of executors and administrators to the payment of costs, in suits by or against them in equity. Where there was ground for taking the direction of the court, in re- lation to a legacy, and the executor submitted the question in the cheap- est possible mode, he was held entitled to retain his costs of the appli- cation out of the property of the testator which was not specifically be- queathed. (aa) In Wood and others v. Vandenburgh and oihers,{b) where the provisions of the will, and situation of the testator's property, were such as to ren- der it proper for the executors to take the opinion of the Court of Chan- cery in relation to the rights of the several parties interested in the property, the costs of the executors, and of the guardians ad litem of the several defendants who were infants, were directed to be paid out of the estate. If executors or administrators commence a suit in Chancery, in good faith, upon probable grounds of right, and to enforce a supposed claim of the testator or intestate, they will not be charged with costs. But if they bring a suit in the Court of Chancery merely to aid a defence at law, they cannot, in case of failure, be excused from costs there, in a case in which costs would be given against them in a suit at law.(c) Executors, it was held, previous to the Code, were liable for the costs of a bill of discovery filed by them in aid of their defence to a suit at law, where it appears from the defendant's answer that there was no fact within his knowledge which could in any way aid them in such defence.(f^) As a general rule, an executor or administrator who files a bill in ' Chancery for the recovery of a debt that accrued in the lifetime of the testator or intestate, and which is apparently due to the complainant in his representative character, will not be personally charged with costs, although his bill is dismissed upon the, merits. But cbsts in Chancery are discretionary even where the suit is brought by ^ exe- cutor or administrator in his representative character. And if the suit is groundless and vexatious, he may be charged with costs personally. So, if an executor or administrator brings a suit in Chancery, which, from (zi) Van Sicife?- against Grakam, 1 How. Prac. Eep. 208. (a) Anie, p. 406. \aa) In ihe Matter ofEowe, 1 Paige, 214. (6) fi Paige, 27T. (c) Manny v.PMJUps, 1 Paige, 4Y2. (d) Boughton v. Philips, 6 Paige, 334. 618 LIABILITY OF EXECUTORS AND ADMINISTRATORS FOE COSTS. papers in his possession, he had good reason to believe was unfounded- or where, by ordinary care and diligence in ascertaining the facts he would have ascertained the suit to be unfounded, the court, in its dis- cretion, may charge him with costs personally, if the estate in his hands is insufficient to pay such costs.(e) A suit is. wantonly brought by an executor or administrator -within the meaning of the provision of the Eevised Statutes on that subject, where it is brought by him without probable cause, or where he hsa not exercised ordinary care and diligence to ascertain whether there was any just cause of action.(/) "Where a creditor or legatee, who is entitled to a priority of payment, prosecutes for his share of the estate, the executor or administrator k the legal representative of the residuary legatees, and it is his duty to protect their rights. And if there is a fair question for litigation, and he does nothing more than his duty in attending to their intereste, he will be allowed his costs out of the fund belonging to them.(gi) ^ Where executors, who have no interest in the question in the cause, are made defendants in Chancery, they are entitled to their costs oia of the fund.(/i) Where an executor neglects his duty, by omitting to invest .the amount of a legacy paid into his hands, and where he refuses to bring the fund into court, when requested to do so by the legatees, for the purpose of having it secured for them, upon a bill filed against him by the legatees to compel him to comply with their request, he will be charged with the costs of the suit. But where, in the bill, the com- plainants make a further claim against the defendant, which they fail to establish, the parties will be left to bear their respective costs of the prosecution and defence of the suit.(t) Where executors or administrators, without any sufficient excuse, refuse to pay over to the general guardian funds belonging to infants, they may be personally charged with costs.(y) Where the complainant, an administratrix, brought an appeal for her own benefit, after a decision against her which ought to have been satisfactory to her counsel, it was held that she had no claim to be ex- cused from the payment of the costs of the appeal, which costs were charged upon her personally.(^) (e) Roosevelt v. EUiihorp, 10 Paige, 415. (/) lb- (g) Prilchard v. Hicks, 1 Paige, 270. (A) DeUfleU v. Golden, 1 Paige, 139. (i) Powell y. Murray, io Paige, 256. (j) Slephem v. Van, Buren, 1 Paige, 479. (4) Oaa-dner v. Gardner, 6 Paige, 455. OF GUARDIANS. 61& CHAPTER XVI. OF GUARDIANS ; OF THE APPOINTMENT OF GENERAL GUARDIANS BY SUR- ROGATES, AND OF THEIR POWERS AND AUTHORITY. The relation of guardian and ward applies to children during their minority, and may exist during the lives of the parents, if the infant becomes vested with property ; but it usually takes place on the death of the father, and the guardian is intended to supply his place. There are two kinds of guardianship ; one by the common law, and the other by statute. It is with the latter, and that chiefly, only so far as the Surrogates' Courts in this state have the appointment and govern- ment of guardians, that this work, consistently with its design and arrangement, has the principal concern. A brief account of the other kind of guardianship, nowever, may not be out of place here, and will prove, it is believed, conducive to the proper understanding of the princi- pal subject under consideration. There were three kinds of guardians at common law, viz., guardians by nature, guardians by nurture, and guardians in socage. " (1.) Guardian hy nature, is the father, and, on his death, the mother; and this guardianship extends to the age of twenty-one years of the child, and it extends only to the custody of his person, and it yielded to guardianship in socage.(a) It was doubted for some time, in the books, whether the guardian by nature was entitled to the possession of the personal estate of the infant, and could give a competent dis- charge to an executor, on the payment of a legacy belonging to the child ; and it was finally understood that he could not.(5) It would seem, therefore, that if a child becomes vested with personal property only, in the lifetime of the father, there is no person strictly entitled to take it as guardian, until a guardian has been duly appointed by some public authority, though if real estate vests in the infant, the guardian in socage, or a substitute for such guardian provided by stat- ute, will be authorized to take charge of the whole estate, real and personal. The father has the first title to guardianship by nature, and the mother the second. The Court of Chancery, for just cause, may interpose and control that authority and discretion, which the father has in general in the education and management of his child."(c) " Attempts have been made to control the father's right to the custody of his infant children, by a legacy given by a stranger to an infant and the appointment by him of a guardian in consequence thereot But it is settled, that a legacy or gift to a child, confers no right to control the father's care of the child, and no person can defeat the father's right of guardianship by such means. If, however, the father accedes to the condition of the gift, and surrenders up his control of (o) " Co. Litt. 84 a ; Litt. seo. 123 ; Co. Lit*. 8t b, 88 ; HaigraWs note, 1 2 ; TAe ffinj V. Thorp, 5 Mod. Rep. 221 ; Jackson v. GoWhs, 1 Cowan's Rep. SG; 2 Wendell's Rep. 153, S. C" th) Cunningham v. Harris, cited in 3 Bro. 1S6; Oend v. TaHimadge, 1 Johns. Ck. Rep. 8; Miles V. Boyden, 3 Pick. Eep. 2l:i." (c) "2Fonb.Tr. of Equity, 234, note; Cretraev. flMrafer, 2 Cox's Eep.242.'' SeeaKenik Comm. 220. 620 OF 6tJARDIANS. tlie child's education, the Court of Chancery -will not suffer him to retract it."(e Waits, 1 1d. 157." See 2 Kent's Oomm. 222. (/) 1B.S. 718. OF GUAEDIANS. 621 torj provisions that are or shall be in force, relative to guardi9,ns in socage, shall be deemed to apply. By the 7th section, the rights and authority of every such guardian shall be superseded in all cases where a testamentary or other guardian ■shall have been appointed, under the provisions of the statute presently to be treated of. Guardians by statute are of two kinds : testamentary guardians and guardians appointed by the Court of Chancery or by surrogates. Testamentary guardians, to whom allusion has already been made, are founded on the deed or last will of the father, and they supersede the claims of any other guardian, and extend to the person and real and personal estate of the child, and continue until the child arrives at full age. This power in. the father to constitute a guardian by deed or will, was given by the statute of 12 Charles H.{g) By the act "concerning guardians and wards,"(A) Sec. 1. Every father, whether of fall age or a minor, of a child likely to be born, or of any living child under the age of twenty-one years, and unmarried, may, by his deed or last will, duly executed, dispose of the custody and tuition of such child, during its minority, or for any less time, to any person or persons in possession or remainder. A will merely appointing a testamentary guardian, need not be proved ; and though the statute speaks of appointment by deed, as well as by will, yet such a disposition by deed may be revoked by will ; and it is evident from the language of the English statute, and from the reason of the thing, that the deed there mentioned is only a testa- mentary instrument in the form of a deed, and to operate only in the event of the father's dsath.(i) Though the statutes in this state, which have adopted or followed the provisions of the English statute, may have abridged its explanatory and verbose phraseology, it is not to be presumed that they intended to vary the construction of it. The bet- ter opinion is, that such a testamentary guardian will continue till the age of twenty-one, though the infant be a female, and marry in the meantime, if the will bo explicit as to the duration of the trust ; for the statute gives that authority to the father.(iY) By sec. 2 of the above mentioned act, every such disposition, (by the deed or last Avill of the father,) from the time it shall take effect, shall vest in the person or persons to whom it shall be made, all the rights and powers, and subject him or them to all the duties and obligations of a guardian of such minor, and shall be valid and effectual against every other person claiming the custody or tuition of such minor, as guardian in socage, or otherwise.(y) Sec. 3. Any person to whom t^e custody of any minor is so disposed of, may take the custody and tuition of such minor, and may maintain all proper actions for the wrongful taking or detention of the minor, and shall recover damages in such actions, for the benefit of his ward. (g) See notes to sec. 18, 1 R. L. 1813, 368. (A) 2 R S. 150; 4th ed. 333. (i) The statute of Ohio, in 1831, very properly drops the word deed, and gives the father the power of appointing by will a testamentary guardian to his infant and ommarried child. (m) See 2 Kent's Oomm. 224. 0) 2R. S. 150; 4th.ed.334 622 OF GUAEDIANS, He shall also take the custody and management of the personal estate of such minor, and the profits of his real estate, during the time for which such disposition shall have been made, and may bring such ac- tions in relation thereto, as a guardian in socage might by law. A father only can appoint a testamentary guardian of his children. The grandfather has no such power, (j/)') The distinction of guardians by 'nature, and by socage, seems now to be lost, or gone into oblivion, and those several kinds of guardians have become essentially superseded in practice by the Chancery guar- dians, or guardians appointed by the Court of Chancery, now by the Supreme Court, or by the surrogates in the respective counties of this state. Testamentary guardians are not very common, and all other guardians are now appointed by the one or the other of those jurisdic- tions. The power of the Chancellor to appoint guardians for infants who had no testamentary or statute guardian, was a branch of his gen- eral jurisdiction over minors and their estates, and that jurisdiction had been long and unquestionably settled.(i) The constitution provides that there shall be a supreme court, having general jurisdiction in law and equity. By the act in relation to the judiciary, passed 12th May, 1847, (i) it is declared that the Supreme Court, organized by the act, shall possess the same powers and exercise the same jurisdiction as is now possessed and exercised by the present Supreme Court and Court of Chancery ; and the justices of said court shall possess the powers,, and exercise the jurisdiction now possessed and exercised by the jus- tices of the present Supreme Court, Chancellor, Vice-Chanoellors and circuit judges, so far as the powers and jurisdiction of said courts and officers shall be consistent with the constitution and provisions of the act.(m) Under these provisions the Supreme Court has exercised the power of appointment of guardians for minors. Surrogates, by the act of the Legislature of the 5th April, 1802, as has been seen,(k) were authorized to allow of guardians who should be chosen by infants of the age of fourteen years, and to appoint guar- dians for such as should be within that age, in as full and ample man- ner as the Chancellor of this state might or could appoint or allow of the same ; and the same jurisdiction is continued by the existing law.(o) And as the powers and jurisdiction of the Court of Chancery were de- clared(p) to be oo-extensive with the same powers and jurisdiction in England, with the exceptions, additions and limitations created and imposed by the constitution and laws, it is to bo inferred that the Chan- cellor of New York retained the jurisdiction over infants, which be- longed to the Chancellor in England, and which belonged to the Chan- cellor of New York prior to the 1st Jp,nuary, 1830, Avhcn the Eevised Statutes took effect. This jurisdiction is now assumed by the Supreme Court. {}]) Eoyt V. miion, 2 Bdw. Ch. Rep. 202, (k) See 2 Kent's Comm 226. (l) S. L. 1847, 319. (ml See 2 E. S. (4th ed.) 462. (b) Anie, p 3. (o) See 2 R. S. 151, sec. 6; 4th ed. 334, fo/rix; lb. 220; 4th ed 418, sec. 1; AjiM, p. 19. (p) 2 R. S. 113, sec 36. OF GUARBIAKS. 623 The practice in Chancery, on the appointment of a guardian, was to require a master's report, approving of the person and security offered. The court might, in its discretion, appoint one person guardian of the person, and another guardian of the estate, in like manner as in the cases of idiots and lunatics, there might be one committee of the per- son, and another of the estate. The guardian or committee of the es- tate always was required to give adequate security ; but the guardian or committee of the person gave none. The same practice in all substan- tial particulars prevails in the Supreme Court. By the 4th section of the above mentioned act, "relating to 'guar- dians and wards," if no guardian for the minor shall have been ap- pointed by the father, by a deed or will, every such minor of the age of fourteen years, may apply, by petition, to the surrogate of the county where the residence of such minor may be, for the appointment of such guardian as the minor may nominate, subject to the approbation of the surrogate.(g) Sec. 5. If such minor be under the age of fourteen years, any rela- tive or other person, in his behalf, may apply to the surrogate of the county where such minor shall reside, for the appointment of a guar- dian of the minor, until he shall arrive at the age of fourteen years, and until another guardian shall be appointed. Upon the making of any such application, the surrogate shall assign a day for the hearing there- of, and shall direct such notice of the hearing to be given to the rela- tives of the minor residing in the county, as he shall, on due inquiry, think reasonable.(r) By the ^ith section of the act of the 16th May, 1837, "concerning the proof of wills, executors and administrators, guardians and wards, and Surrogates' Courts," it is provided that the notice i-equired by the above 5th section shall be required to be served on such relatives only of the minor as the surrogate shall direct.(s) Sec. 6. The surrogate to whom application may be made under either of the preceding sections, shall have the same power to allow and appoint guardians, as is possessed by the Chancellor ; and in all cases he shall inquire into the circumstances of the minor, and ascertain the amount of his personal property, and the value of the rents and profits of his real estate ; and, for that purpose, he may compel any person to appear before him, and testify in relation thereto.(<) Sec. 7. [Sec. 8.] Before appointing any person guardian of a minor, the surrogate shall require of such person a bond to the minor, with sufficient security, to be approved by him, in a penalty double the amount of the personal estate, and of the value of the rents and profits of the real estate, conditioned, that such person will faithfully, in all things, discharge the duty of a guardian to such minor, according to law, and that he will render a true and just account of all moneys and property received by him, and of the application thereof, and of his guardianship in all respects, to any court having cognizance thereof, when thereunto required.(M) (?) 2 E. S. 150 ; 4th ed. 334. (r) lb. 151 ; 4th ei 334. (s) S. L. 1837, 532; 2 R. S. (4th ed.)334. {<) 2 R S. 151; 4th ed. 335. (u) 2 R. S. 151 ; 4th ed. 336. 624 APPOINTMEKT OF GUARDIANS FOE MINORS. Sec. 8. [Sec. 9.] The bond so taken sliall be retained by the surro- gate, among the papers of his office, and in case of any breach of the condition thereof, may be prosecuted in the name of the ward, although he may not have arrived at full age, by his next friend or guardian, whenever the surrogate shall direct. Of the Appointment of Guardians for Minors over the Age of Fourteen. The petition to the surrogate, of a minor of the age of fourteen, for the appointment of a guardian, should aver the residence of the minor in the county of the surrogate, and the age of the minor, and should nominate, subject to the approbation of the surrogate, the person de- sired to be appointed the guardian, and pray his appointment. It should be accompanied by the written consent of the person proposed, to accept the guardianship ; and also by evidence, in the form of an affidavit or otherwise, of the amount of the personal estate, and of the value of the rents and profits of the real estate belonging to the minor, to answer the inquiry directed to be made by the above 6th section of the statute, and in order that the surrogate may fix the penalty of the bond, to be taken of the guardian, pursuant to the 7th section. Other evidence concerning the property of the minor, besides that so fur- nished, may be demanded by the surrogate. " The proper course" says the Chancellor in Bennett v. Byrne,{v) " for the surrogate upon the ap- pointment of a guardian, is to ascertain by the examination of wit- nesses, the probable amount of the personal estate, and of the income of the realty during the minority of the infant." And it wQuld seem proper that some written evidence should be produced that the minor is of the requisite age to entitle him to make the application himself. If the surrogate approve of the person nominated, upon his executing a bond to the minor, with sufficient security, according to the provi- sions of the 7th section, he is appointed the guardian, 'and letters of guardianship are granted and issued to him. Personal security is usually affered. If such be the case, the surrogate may require and take evidence of the pecuniary responsibility of the suretj', and in nearly all cases he will require him to justify in the amount of the penalty of the bond. Usually, only one surety is demanded. Other sufficient se- curity, as by mortgage of real estate, may be accepted, as the statute, does not prescribe the kind of security to be required ; but such is not commonly offered. Where there are several guardians, the statute re- quiring the surrogate, upon the appointment of guardians, to take from every guardian a bond with surety, &c., is complied with by taking one joint and several bond from all the guardians, with surety.(w;) Upon granting the letters, an order allowing the same to issue should be made and entered in the surrogate's minutes. (For forms for proceedings on the appointment of a guardian of a minor of the age of fourteen, and form of the letters of guardianship, see Appendix, So. 116.) (b) 2Barti. Ch. Rep. 216. (u() Kirby v. Twrjiar, 1 Hopkins' Gk.. Eep. 309. APPOINTMENT OF GUAEDIANS POH MINCES. 625 Of the Appointment of Guardians for Minors under the Age of Fourteen. In the case of a minor under the age of fourteen years, the petition for the appointment of a guardian must come from a relative or other person in behalf of the minor. It is usually presented by a person pro- posing to be himself appointed the guardian. It should state the re- lationship, if such be the case, of the petitioner to the minor, the resi- dence of the minor within the county of the surrogate, his age, and the amount of his personal estate, and the value of the rents and profits of his real estate. It should also state the naipes of the relatives of the minor residing in the county, and the particulars of their relationship, to enable the surrogate to give the proper directions with regard to no- tice to the minor's relatives, pursuant to the provisions of the above 5th section of the statute and of the law of 1837. Its prayer will be for the appointment of the petitioner or some other suitable person as the guardian of the minor until he shall arrive at the age of fourteen years, and until another guardian shall be appointed. If the petitioner pray for his own appointment, that will be a sufficient consent to accept of the guardianship ; if the prayer be for the appointment of ^another per- son, the petition should be accompanied by his consent to accept. The petition should be under oath, and upon presenting the same, the surrogate assigns a day for the hearing thereof, and decides as to the notice to the relatives of the minor residing in the county, provided for by the above sections of the statutes. The statute is imperative that the surrogate shall assign a day for the hearing of the application, and shall direct such notice of the hearing to be given to the relatives of the minor residing in the county, as he shall, upon due inquiry, deem reasonable. This provision, as originally enacted in the Eevised Stat- utes, seems to have borne the construction that all the relatives of the infant, either by affinity or consanguinity, if they resided in the county, were to be'notifiied of the time and place appointed for the hearing of the application ; and that the surrogate was only to decide upon the reasonableness of the notice. The act of 1837 has modified the provi- sions of the Eevised Statutes in this respect, by declaring that the no- tice shall be required to be served on such relatives only of the minor as the surrogate shall direct. This modification, however, does not re- lieve the surrogate from the duty of making the inquiry contemplated by the Eevised Statutes, for the purpose of ascertaining who are the relatives of the infant residing in the county, and of directing notice of the application to be given to such and so many of them as may be deemed reasonable for the purpose of having the rights of the infant properly attended to iipon the application. Where the application is made by one who is not nearly related to the infant either by affinity or consanguinity, it is the duty, therefore, of the surrogate to inquire and ascertain whether the infant has any such relatives in the county, who are of sufficient age and capacity to protect the rights and inter- ests of the minor in the selection of a proper guardian, and in obtain- ing sufficient security from such guardian in reference to the nature and value of the infant's property. And if the nearest relatives of the in- fant do not join in me application, or give their consent to the same, the surrogate should direct notice to be given to such and so many of 40 626 APPOINTMENT OP GUARDIANS TOE MINORS. them "wlio are residing in tlie county, as lie may deem necessary to pro- tect the infant's interest and rights on such apphcation. He should enter his decision on that subject in the minutes of his proceedings, and should require the applicant to furnish the evidence of the service of such notice before he proceeds to make the appointment. So, where the application is made by a relative of the infant, the surrogate should make the requisite inquiries, and ascertain whether there are any otBer relatives related to the infant in the same degree, or more nearly, and direct notice of the hearing of the application to be given accordingly. And where the surrogate errs, either by neglecting to make the proper inquiries as to who are the relatives of the infant, or in not directing notice to be given to such of the relatives as, in the exercise of a sound discretion, he should have directed to be notified of the time and place of hearing the application, the Appellate Court may reverse his de- cision, and may set aside the appointment of the guardian upon that ground, (a;) An order directing the notice to be given, specifying the names of the relatives upon whom it must be served, and the number of days' service to be given, is entered in the surrogate's minutes. From four to eight days' service is usually allowed. On the day named in the notice, upon proof of the due service thereof, the hearing on the petition takes place. The parties may appear either in person or by counsel. The surrogate may, if he thinks proper, ap- point one of the relatives, or any other suitable person, the guardian ad litem of the infant in relation to the application, for the purpose of procuring the requisite proofs, so as to prevent an improper appoint- ment of a guardian, or the taking of insufficient security in reference, to the property ; and he may examine the relatives of the minor, or any other persons, on oath, as to any matter connected with the appli- cation, or as to the propriety of granting the same.(y) On the hearing, the same inquiry is to be made as to the qualifica- tions of the proposed guardian, and the sufficiency of the security offered, as in the case of an application for the appointment of a guar- dian of a minor over fourteen years of age. Besides these subjects of investigation, the title of the party to be appointed the guardian may also be a matter of dispute. It is often a litigated question of great importance to the parties as to who is entitled to guardianship. The Revised Statutes originally contained a section, numbered 7, declaring the order of priority to be observed in the appointment, which was derived from the practice in the Court of Chancery ; but, upon the suggestion that difficulties might arise in pursuing the order therein prescribed, and as the 6th section gives the surrogate the same power in relation to the appointment as is possessed by the Chancellor, it was deemed best to repeal the section in question, which was accordingly done by the act of 1830, chap. 320, sec. 31.(a) (a;) VhderhiU v. Dennis, 9 Paige, 206-7. See, also. White v. Pomeroy, 1 Barb. S. C. E. 640. (y) See KeUmger v. Roe, 7 Paige, 363. (z) See 3 R. & Or. S. App. 663. The section which was repealed gave the preference, in the appointment as general guardian: 1. To the mother; 2. To the grandfather, on the father's side ; 3. To the grandfather, on the mother's side ; 4. To either of the mides, on the APPOINTMENT OF GUARDIANS FOR MINORS. 627 It is a most important question, for an infant of tender age, who shall have the charge of his education and estate. It depends on the guar- dian, whether he shall be nurtured and trained under such influences and associations as to fit him for a station of respectability and honor in society ; or whether he shall be so reared as to be led by bad precept and example, to profligacy and ruin. The safeguards, therefore, which the law has thrown around the infant, to prevent an injudicious ap- pointment, are not to be disregarded.(a) The true interests of the in- fant are to be consulted in making the appointment of his guardian, rather than the interests or the wishes of those who are contending for the guardianship.(6) As between an uncle and a stranger, contending for the guardian- ship, other things being equal, the uncle is to be preferred as guar- dian,(c) The fact that the real ' estate of the infant came to him by descent from his father, and not from his mother, affords no suiScient ground for giving a preference to the paternal relatives of the infant, over the maternal relatives of the same degree of affinity or consanguinity, in the appointment of guardian. The declared wishes of the deceased parents of an infant, in relation to the manner in which he should be brought up, and as to whose care he should be committed during his infancy, are entitled to much weight in deciding upon the claim of the different relatives to the guardianship of the infant.(cZ) So the fact that the mother of an infant, tipon her deathbed, ex- pressed the wish that a particular relative should adopt such infant and bring it up as his own, and should see that its propert}'- ^vas not wasted, should have a preponderating influence with the surrogate, other things being equal, in favor of the appointment of such person as guardian of the infant. And the probability, if a particular person should be ap' pointed guardian, that the estate will be subjected to the expense of a new appointment, within a very short time, and to the other expenses incident to a change of guardianship, is a circumstance entitled to some weight in favor of the appointment of another person by the surro^ gate.(e) Again, where a person, applying to be appointed guardian, of an in- fant, is already the trustee of such infant, for the purpose of expending the income of an estate for his support and education, it is a circum- stance in favor of his appointment as such guardian ; in order that the infant may not be subjected to the expense of separate accounts of the expenditures for his support, the one on the part of the trustee, and the Other by the guardian. (e) And in a very recent case, in the Supreme Court at general term in the third district, this rule has been recog- nized and acted upon.(/) father's side ; 5. To either of the uncles, on the mother's side ; 6.. To any one of the next of kin to the minor, who would he entitled to a distributive share of his personal estate, in case of his death. (a) White v. Pomeroy, 1 Barb S. 0. R. 640. (6) Senneti v. Byrne, 2 Barb. Ch. Rep. 216. (c) Morehouse v. Cooke, Hopkins, 226. \d) Underhill v Dermis, 9 Paige, 203. , (e) Bennett v. Byrne, 2 Barb. Ch. Rep. 216. (/; Boyd V. Davis, MS. 628 POWER AND AUTHORITY OP THE GUARDIAN. Tlie surrogate determines upon any conflicting claims which may be made to tlie guardianship, and his decision is stated in the order for the appointment. If a person other than the one named in the petition be appointed, his written consent to accept should be produced and filed. A similar bond is to be taken, and a similar order is to be entered, in the case of the appointment of a guardian for an infant under the age of fourteen, to those in the case of an infant over that age. (For forms for the proceedings, see Appendix, No. 117.){g) Of the Power and Authority of the Ovardian. The power and authority of the guardian remain to be here consid- ered. By sec. 9 [sec. 10] of the aboye mentioned title of the Eevised Statutes relative to guardians and wards, every guardian, so appointed by a surrogate, (according to the provisions and directions above given,) shall have the same powers as a testamentary guardian; and every person so appointed guardian of a minor, under the age of fourteen years, shall continue guardian of such minor, and shall be responsible as such, notwithstanding the said minor may arrive at the age of four- teen years, until another guardian be appointed, or such first guardian be discharged according to. law.(/i) A guardian of an infant who is under fourteen, appointed by the Court of Chancery, continues such guardian until the infant is twenty- one years of age, unless sooner removed by the court appointing him ; and the infant, upon arriving at the age of fourteen, cannot have a new guardian appointed as of course.(i) The guardian of the estate has no further concern with, or control oyer, the real estate, than what relates to the leasing of it, and the re- ception of the rents and profits, and it is his duty to place the ward's land upon lease. He has such an interest in the estate of his ward, as to enable him to avow for damage feasant, and to bring trespass or eject- ment in his own name. These were common law rights belonging to the guardian in socage, and they apply to the general guardian at the present day. He may lease during the minority of the ward, and no longer, but he cannot sell without the authority of the Court of Chan- cery.(y) The infant may, by his guardian, apply to that court, for the sale or disposition of his property ; on such application, the court ap- points a guardian specially for the infant, in relation to the proceedings on such application ; a reference to a master is had to inquire into the merits of the application ; and then, whenever it shall appear satisfac- {g) As in the Court of Chancery, so the surrogate may, in his discretion, appoint one per- son guardian of the person and another guardian of the estate of the infant; but security is ^ot entirely dispensed witli from the former, as in that court, a bond with surety being taken, •although its penalty is in merely a nominal amount. Instances of this kind, however, are not numerous, and occur almost exclusively in those cases where the Life Insurance and Trust Company is appointed guardian of the estate of the Infant ; in which oases, a separate guardian for the person becomes necessary. In all other cases the same person is appointed guardian of both the person and the estate of the infant. (ft) 2 R. S. 151 ; 4th ed. 335. /i) " In the Matter of Dyer," 5 Paige, 534. (.;■) See 2 Kent's Com. 228, and cases citeA PO'WER AND AUTHORITY OF THE GUARDIAN. 629 torily that a disposition of any part of tlie real estate of such, infant, or of his interest in any term for years, is necessary and proper, either for the support and maintenance of such infant, or for his education ; or that the interest of such infant requires, or will be substantially pro- moted by, such disposition, on account of any part of his said property being exposed to waste and dilapidation, or on account of its being wholly unproductive, or for any other peculiar reasons or circumstan- ces, the court may order the letting for a term of years, the sale, or other disposition of such real estate or interest, to be made by such guardian or guardians so appointed, in such manner, and with such restrictions as shall be deemed expedient. But no real estate or term, for years shall be sold, leased or disposed of, in any manner against the provisions of any last will, or of any conveyance, by which such estate or term was devised or granted to such infant.(^) By section 91, [sec. 86,] 2 R. S. 330,{t) whenever it shall appear sat- isfactorily, by due proof, or on report of a master, to the Courit of Chan- cery, (now the Supreme Court,) that any infant holds real estate in joint tenancy, or in common, or in any other manner which would au- thorize his being made a party to a suit in partition, and that the inter- est of such infant, or of any other person concerned therein, requires that partition of such estate should be made, such court may direct an^ authorize the general guardian of such infant to agree to a division' thereof, or to a sale thereof, or of such a part of the said estate as in the opinion of the court shall be incapable of partition, or as shall be most for the interest of the infant, to be sold. This provision does not authorize the guardian to sell to a co-tenant, but only to join with the other tenants in common in a sale of the joint interest in the property. The court will not authorize the guardian tO' join in a sale except on the report of a master that such sale is neces- sary and proper ; and the guardian must give security for the faithful' performance of his trust on such sale, and to bring the proceeds of the infant's share into court, or to invest and account for the same, as the court shall direct. If a co-tenant wishes to buy the infant's share in an estate which cannot be divided, and is willing to give the fair value thereof, the general guardian should apply for liberty to sell, under the article of the Revised Statutes above referred to, relative to the sale and disposition of infants' estates. It is a sufficient ground to au- thorize a sale of an infant's property, that it is held in common with adults, and that the value of the estate is small in comparison with the expense of a partition suit to which it must otherwise be subj^cted.(m} The guardian may sell the personal estate of his ward for the pur- poses of the trust without a previous order of the court, and such sale, without a previous order, if fair, would undoubtedly be good as to the purchaser, but. the safer course for the guardian is, to have a previous order.(n) Such an order the Surrogate's Court is clearly competent to make. (*) See 2 R. S. 195, see. lie etseq.; 4th ed. 359-60. (l) 4th ed. 590. (m) "In the MaMer of Congdon" 2 Paige, 566. (s) See 2 Kenfs Oomm. 228, and note h. 630 POWEE AND AUTHORITY OF THE GUARDIAN. Where the appoiatment of a person as guardian of a miiior is in- valid, his subsequent appointment as administrator of his ward's father will also be erroneous, if his claim to be appointed administrator rests upon the fact that he has been appointed guardian, and is entitled to administer in the right of his ward ; and letters have been issued to him without any citation or notice to relatives having a prior right to the administration, (nw) Again, a guardian appointed out of this state is not entitled to re- ceive from the administrator in this state the portion or legacy of the infant. But to acquire such right he must be appointed in this state, and give the proper security ;(o) and, generally, the rights and powers of the guardians over the person and property of their wards are, like the rights and authorities of executors and administrators, strictly local, and cannot be exercised in other states, for they come within the same reasoning and authority.(p) Nor have they any authority over the real property of their wards situate in other countries, for such prop- erty is governed by the law rei sitce'.{q) it has appeared, at a previous page of this work,(r) that a legacy to a minor, if under the value of fifty dollars, may be paid to his father, to the use and for the benefit of such minor; that if the legacy be of the value of fifty dollars or more, the same may, under the direction of the surrogate, be paid to the general guardian of the minor ; but, that to entitle the general guardian to receive such legacy, he must give secu- rity to the minor, to be approved by the surrogate, for the faithful ap- plication and accounting for such legacy. At a previous page of this work,(s) it also appeared that where a distributive share is to be paid to a minor^ the surrogate may direct the same to be paid to the general guardian of such minor, and to be applied to his support and education. The proceedings in behalf of £|^ minor, by his guardian, to recover a leg- acy or distributive share due to the minor by an action at law, were also referred to in that portion of this work treating of the subject of legacies and distributive shares.(i) Where there are several guardians of an infant's estate, they may act either separately or in conjunction. They are jointly responsible for jpint acts ; and each is separately answerable for his separate acts and defaults.(M) (ms) White v. Pomeroy, 1 Barb. S. C. B. 641. (o) Morrell v. Dickey, 1 Johns. Ch. Eep. 153. (p) MorreU v. Dickey, 1 Johns. Oh. Rep. 156, and other cases and authorities cited in note to 2 Kent's Comm. 228. (g) Story's Confl. of Laws, 414^1'?. (r) Ante, pp. 404, 426. See 2 R. S. 91 f 4th ed. 2'76. (s) Ante, pp. 52'Z, 542. See 2 R. S. 98. h) See ante, pp. 405-6, 425. See 2 R. S. 115. (») Kirby v. Turner, Hopkins, 309. DUTIES AND LIABILITIES OP GUARDIANS. 631 CHAPTER XVII. OF THE DUTIES AND LIABILITIES OF GUARDIANS; OF COMPELLING THEM TO ACCOUNT IN THE SURROGATE'S COURT; OF THE RENDERING AND SETTLING OF THEIR ACCOUNTS, AND OF PROCEEDINGS IN THE SURRO- GATE'S COURT FOR THEIR REMOYAL. By section 19 [sec. 20] of the title of the Eevised Statutes relative to guardians and wards, it is declared and required that every guardian in socage, and every general guardian, whether testamentary or ap- pointed, shall safely keep the things that he may have in his custody belonging to his ward, and the inheritance of his ward, and shall not make or suffer any waste, sale or destruction of such things or of such inheritance, but shall keep up and sustain the houses, gardens and other appurtenances to the lands of his ward, by and with the issues- and profits thereof, or with such other moneys belonging to his ward- as shall be in his hands ; and shall deliver the same to his ward, when he comes to his full age, in as- good order and condition, at least, as such guardian received the same, inevitable decay and injury only ex- cepted; and he shall answer to his ward for the issues and profits of real estate received by him by a lawful account.(a) By sec. 20, [sec. 21,] if any guardian shall make or suffer any waste, sale or destruction of the inheritance of his ward, he vshall lose the cus- tody of the same, and of such ward, and shall forfeit to the ward thrice the sum at which the damages shall be- taxed by the jury. The guardian's trust is one of obligation and duty, and not of specu- lation and profit. He cannot reap any benefit from the use of the ward's money. He cannot act for his own benefit in any contract,, or purchase, or sale, as to the subject of the trust. If he settles a debt upon beneficial terms, or purchases it at a discount, the advantage is to accrue entirely to the infant's benefit.(J) It has been held that he has no right to commute the debts or judgments due the ward or infant, and that if he do, he is responsible for the amount and interest.(c)- If he takes notes or other securities, for money belonging to his ward,, in his own name, he converts the property to his own use, and is prima facie accountable for it. Thus, if a guardian surrenders contracts for land, and takes deeds in his own name, and pledges his personal re- sponsibility for a part of the purchase money, this will be held a con- version of the contracts to his own use ; and the ward may adopt the transaction, or claim from the guardian the value of the land contracts, at his election.((^) It is his duty to take care of, and account for the money of his ward from whatever source derived, and he would, there- fore, be accountable as guardian for money received by him here for their lands in another state when legally sold.(c?ci) He is bound to rent his ward's land, and if he neglect it, he will be charged with the esti- (a) 2 R. S. 153 ; 4th ed. 336. (6) See 2 Kent's Comm. 229. (c) Forles v. Mitchell, 1 J. J. Marsh. Rep. 441. Whether insolvency of a debtor consti- tutes an exception? Qucere, lb. (d) White V. Parker, 8 Barb. S. C. R. 48. {dd) Bwruxm ei al v. Fatty's Seirs, S Dana, 223. 632 DUTIES AND LIABILITIES 01" GUARDIANS. mated reiit.(e) If the guardian lias been "guilty of negligence in tlie keeping or disposition of the infant's money, whereby the estate has incurred loss, the guardian wUl be obliged to sustain, the loss. The guardian must not convert the personal estate of the infant into real, or buy land with the infant's money, without the direction of a court of equity.(ee) The power resides in that court to change the property of infants from real into personal, and from personal into real, whenever it appears to be manifestly for the infant's benefit.(/) It is said that the latter power may be exercised by a guardian or trustee, in a clear and strong case, without the previous order of a court of equity; but it is an extremely perilous act, and cannot be recommended ; and the in- fant, when he arrives at full age, will be entitled, at his election, to take the land or the money with interest ^gf) if he elect the latter, however, Chancery will take care that justice be done, by considering the ward as trustee for the guardian of the lands standing in his name, and wiU direct the ward to convey. And if the guardian puts the ward's money' in trade, the ward will be equally entitled to elect to take the profiteof the trade, or the principal, with compound interest, to meet thdse pro- fits when the guardian will not disclose them. He cannot trade with himself, on account of his ward, nor buy or use his ward's property for his own benefit. All advantageous bargains which a guardian makes with the ward's funds will enure to the benefit of the ward, at his else- tion.Qi) So, if he neglects to put the ward's money at interest, but negligently, and for an unreasonable time, suffers it to lie idle, or mingles it with his own, the court will charge him with simple interest, and in cases of gross delinquency, with compound interest. Where, however, there is no proof as to the ability, of a giiardian safely to in- vest his ward's money on interest, he will be allowed a reasonable time to do so : usually six months.(A) These principles are understood to be well established in the English equity system, and they apply to trustees of every kind ; and the principal authorities upon which they rest were collected and reviewed in the Chancery decisions of this state, to which it will be sufficient to refer, as they have recognized the same doctrine.(M) The relation which a guardian maintains to his ward is not that of a contract debtor to his creditor. Where he has received the money of his ward, the law will doubtless raise an implied promise to pay it over, when the latter arrives at age, if he chooses to bring an action of as- sumpsit. But the guardian cannot, by any act of his, change his du- ties and liabilities from those of a trustee to those of a mere contract debtor.(i) (e) Jones v. Wa/rd, 10 Terger, 161. (ee) White v. Pm-ker, 8 Barb. S. 0. R. 48. (/) See the oases cited in 2 Kent's Comm. 230, from whence this summary of the duties of guardians is for the most part taken. (g) Eckford v. De Kay, 8 Paige, 89 ; Whiter. Parker, 8 Barb. S. C.R. 48. (ft) WMlevi Pan-ker, 8 Barb, S. 0. R. 48. ' (M) "Green v. WinUr, 1 Johns. Ch. Rep. 26 ; Dunscomb v. Dmscomb, lb. 508 ; ScMeffAnr. Stewart, lb. 620; Soldridgev. CfiUespie, 2 Johns. Ch. Rep. 30; Davoue \. Fmmng, lb. 252; Smith V. Smith, 4 Johns. Ch. Rep. 281 ; EverUon v. Tappan, 5 Johns. Ch. Rep. 49T; Ghrl^ son V. Depeyster, 1 Hopkins' Rep. 424 ; Bogeis v. Sogers, lb. 615." See 2 Kent's Oomm. 230, 11. ; and see Rapalye v. HaU,\ Sandf. Ch. Bep 399 ; White V. Parker, 8 Barb. S. C. B. 48. (i) Seaman v. Dwyea, 10 Barb. S. C. E. 524. DUTIES AND LIABILITIES OF GTrAEDIANSi 633 A guardian, however, acting within the scope>of his powers, is'hound only to fidelity, and ordinary diligence and prudence in the execution of his trust; and his acts, in the absence of fi?aud, will be liberally con- strued.(M) It is a violation of duty on the part of a guardian to permit his in- fant ward to live in idleness, and to support him out of his estate, when he is capable of supporting himself by his industry. And where the guardian permitsNtim to be brought up in idleness, the infant will not be liable to the gul,rdian for the support furnished him in the mean- time. But the means of support furnished to an infant, by his guardian, while he is being educated and prepared for future usefulness, will be allowed to the guardian as necessaries.(y) Though the fether be liable for necessaries supplied to his child with- out his consent, because he is boimd to support him, and is entitled to his services, yet a guardian is not so liable.(j|)') It is the duty of the guardian to see to the proper application of the infant's property towards his maintenance. As the surrogate has power by the statute, (^) to direct and control the conduct of guardians ap- pointed by him, he possesses authority to make due regulation for the maintenance of the wards.(M) His jurisdiction in this respect is prob- ably similar to, and co-extensive with that of the Supreme Court in the same case. There formerly existed much dif&culty, on the part of the Court of Chancery, in interfering upon the petition either of the guar- dian or of the infant, to direct a suitable maintenance for the latter. The effect of this doubt was to allow the guardian to exercise his dis- cretion at his own peril ; and thus to leave much to his sense of duty ; and much more to his habits of bold or of timid action in assuming re- sponsibility. At present, a different course is pursued ; and in ordinary cases, at least, where the property is small, the court will, upon petition, without requiring the more formal proceedings by bill, settle a due maintenance upon the infant. Lord Hardwicke, in vindication of this latter course, said: "There. may be a great convenience in applications of this kind, because it may be a sort of check upon infants, with regard to their behavior ; and it may be an inducement to persons of worth to accept of the guardianship, when they have the sanction of this court for anything they do on account of maintenance ; and likewise of use in saving the expense of a suit to an infant's estate."(Z) These are con- siderations which certainly ought never to be lost sight of in regulating the practice of the court ; for it seems not to be a question as to the ju- risdiction of the court, (m) («■) White V. Pwrker, 8 Barb. S. 0. E. 48. 0') OlarkY. Clark, 8 Paige, 152. ijj) Call V. Woj-d, i Watts and Serg. 118. (ft) 2 B. S. 220, (4th edi 418,) see. 1, subdiv. 1. See ante, p. 19. (kk) This power is now disputed on the part of the court, but was exercised without ques- tion by the surrogate of the county of New York previous and up to 1 844. See the opinion of the Chancellor "In the Matter of the petition of Francis E. Parker" (1 Barb. Ch. R. 154,) where the Chancellor considers the application of the provision in the same section of the stat- ute, autborizing the surrogate " to direct and control the conduct of executors and adminis- trators ;" but his remarks, after all, do not reach the case mentioned in the text. (h "Exp(aie'WhUjield,2Uk.Zl&." (m) 2 Story's Eq. Jur. sec. 1354. 634 ACCOUNTS OF GUARDIANS. In allowing maintenance, the court "will have a liberal regard to the circumstances and state of the' family to which the infant belongs. Such considerations will apply to a. father or mother of the infant who is in distressed or narrow, circumstances. On the other hand, in allow- ing maintenance, the court usually confines itself within the limits of the income of the property. But where the property is small, and more means are necessary for the due maintenance of the infant, the court will sometimes allow the capital to be broken in upon. But, without the express sanction of the court, a guardian will ndt be permitted of his own accord to break in upon the capital, (w) Of the Accounts of Guardians. By section 57 of the act of the 16th May, 1837, concerning the proof of wills, guardians and wards, &c., it is provided, that every general guardian appointed by the surrogate shall, annually after such appoint- ment, so long "as any part of the estate, or the income or proceeds thereof, remain in his hands or under his control, file in the of&ce of the surrogate appointing him, an inventory and account under oath, of his guardianship, and of the amount of property received by him and remaining in his hands, or invested by him, and the manner and nature Qf such investment, and his receipts and expenditures, in form of debtor and creditor.(o) By section 58, every surrogate shall annex to, and deliver with each appointment of a general guardian made by him, a copy of the prece- ding section, and shall file in his office all accounts and inventories before mentioned ; and in the month of February in each year, shall examine all such accounts and inventories as shall have been. filed ia his office for the preceding year. By section 60, if on such examination the surrogate shall be satisfied, in any case, that the interest of the ward requires that a more full and satisfactory account should be given, or that such guardian should be removed ; or in case any guardian shall neglect to file such account and inventory for three months after the same should have been filed, such surrogate shall proceed against such guardian in the manner pre- scribed in the fourteenth section of title third of chapter eight of the second part of the Kevised Statutes, and sections fifteen, sixteen, seven- teen, eighteen and nineteen of said title, shall extend to proceedings authorized by this section. But such surrogate may discontinue such proceedings, on such guardian filing in his office an a,ccount and inven- tory satisfactory to said surrogate, and on payment of all costs which may have accrued in consequence of such neglect.(oo) The form of the inventory and account to be rendered pursuant to the above 58th section, is very plainly declared by its provisions. The dates of the various items of receipts, expenditures and invest- ments, will of course be given. The guardian should correctly charge himself with such amounts of interest on uninvested funds as he is justly liable for to his ward. If he neglect to make investments, he («) See 2 Story's Bq. Jur. see. ]355, and cases cited, (o) S. L. 1831, 534; 2 R. S. (4th ed.) 338. \oo) S. L. 1831, 634 1 2 R. S. (4th ed.) 338. ACCOUNTS OF GUARDIANS. 6S5 is oliargeable with tlie interest of the unemployed funds commencing six months after the receipt of the moneys.(^) By section 21 [sec. 22] of the ahove mentioned title of the Eevised Statutes, guardians shall be allowed for their reasonable expenses, and the same rate of compensation for their services as is provided by law for executors.(5') The rate of compensation for their services provided by law for ex- ecutors is, as was seen at a previous page of this work.(g'g') 1. For receiving and paying out all sums of money not exceeding one thou- sand dollars, at the rate of five dollars per cent. 2. For receiving and paying out any sums exceeding one thousand dollars, and not amounting to five thousand dollars, at the rate of two dollars and fifty cents per cent. 3. For all sums above five thousand dollars, at the rate of one dollar per cent. The guardian should charge his ward in his annual accounts, respect- ively, his reasonable expenses incurred in behalf of his ward, up to the time of rendering the same, or since the rendering of his last account. It is also proper for him to compute his commissions upon his receipts and disbursements of each year, so as to credit such commissions in the annual accounts, for the purpose of ascertaining the true balance in his hands at each annual accounting. But he is not to be allowed full commissions upon every receipt and investment of the trust fund com- mitted to his care and management. The principles laid down in a former page of this work when treat- ing of the subject of the allowance of commissions to executors and ad- ministrators, (r) apply in every particular to such allowance to guar- dians. Some of the remarks there made taken from the decision of the Chancellor, "/n the Matter of Kellogg "(s) it is deemed proper to re- peat in this place with others. " The investment or re-investment of the fund, from time to time, upon new securities, for the purpose of producing an income there- from," it was there said, " is not such a paying out of the trust moneys as entitles the guardian or trustee to commissions for paying out the same, within the intent and meaning of the statute on this subject, unless such securities are finally turned over to the cestui que trust as money, or otherwise applied in payment on account of the estate. Neither is the guardian or trustee entitled to charge a new commission for the collecting or receiving back of the principal of the fund which he has so invested. But he will be entitled to commissions upon the interest or income of the fund produced by such investments, and. re- ceived and paid over by him. The statute gives a certain allowance, by way of commissions, for receiving and paying out moneys by execu- tors, guardians, &c., without specifying how much is allowed for re- ceiving, and how much for paying out the same. And it may some- times happen, upon a loss of the fund without any fault on the part of the guardian or other trustee, or upon a change of trustees, that the (p) De Feyster v. GlarTtson, 2 "Wen. 11 ; White v. Parker, 8 Barb, S. C. E. 48. (q) 2 R. S. 153 ; 4th ed. 336. (qq) Ante, p. 448, 492 elseq. See 2 E. S. 93, sec. 58. (r) See ante, pp 492 to 49T. \s) 1 Paige, 267. 636 ACCOtJNTS OF ^TJAEDIAJilS. guardian or trustee may be entitled to compensation for one service, and not for the other. In such cases, the language of the statute must be construed with reference to the decisions of Chancellor Kent, In the Matter of Roberts,{ss) where he first established the allowance to be made in such cases, in conformity with the directions of the act of April, 1817 ; that is to allow one-half commissions for receiving, and one-half for paying out the trust moneys. " The proper rule, therefore, for computing the commissions upon tbe first annual statement, or passing of the accounts, of the guardian, receiver or committee, who is required to render or pass his account Eeriodically during the continuance of the trust, is to allow him one- alf of the commissions, at the rates specified in the statute, upon aU moneys received by him, as such trustee, othel' than the principal mo- neys received from investments made by him. on account of the trust estate. And he is also to be allowed his half commissions on all mo- neys pa,id out by him, other than moneys invested or re-invested by him in bonds and mortgages, stocks, or other securities, for the benefit of the trust estate under his care and management ; leaving the residue of his half commissions upon the fund which has come to his hands, and which remains invested or unexpended at the time of rendering or passing such account, for future adjustment when such funds shall have been expended, or when the trustee makes a final settlement of his account upon the termination of the trust. And upon every other Eeriodical statement of the account during the continuance of the trust, alf commissions should be computed in the same manner upon all sums received, as interest or income of the estate, or as further additions to the capital thereof, since the rendering or passing of his last account, and half commissions upon all sums expended, except as investments." Other particulars relative to the accounts of guardians, will presently be considered in connection with the subject of the rendering and set- tling of their accounts, either at the instance of the ward or some per- son on his behalf, or at their own instance. A strict observance of so inuch of the above 58th section as requires the surrogate, in the month of February in each year, to examine the accounts and inventories of guardians which shall have been filed in his office for the preceding year, and of so much of the 60th section as requires him to take proceedings ex officio against delinquent guardians, must be found impracticable by a surrogate having jurisdiction over a large population. The proceedings for the removal of a guardian, re- ferred to in the above 60th section, will hereafter be treated of when the provisions of the statute therein mentioned come in their due order to be considered. The guardian is liable to an action of account at common law, by the infant after he comes of age ; and the infant, while under age, may, by his next friend, call the guardian to account by an action in the nature of a former suit in Chancery. The general jurisdiction over every guardian, however appointed, resides in the Supreme Court ; and a guardian appointed by the surro- gate, or by "will, is as much under the superintendence and control of («s) 3 Johns. Oh. Eep. 43. RBNDEIIIN& AND SETTLING OF ACCOUNTS. 637 the Supreme Court, and of the power of removal by it, as if he were appointed by the court.(<) Where a testamentary guardian holds a fund for the sole benefit of his wards, in his character of guardian, to be invested for their use, the Supreme Court may change the investment from that which is directed by the testator, where it is for the benefit of the infants that such change should be made, even without the consent of such guardian.(M) Of the Rendering and Settling of the Accounts of Guardians in the Surro- gate's Courts. The authority of the surrogate to compel guardians to render ac- counts and to settle their 'accounts, is now to be considered. The pro- ceedings on the part of the surrogate, ex officio, against a guardian, where he neglects to file an account and inventory for three months after the same should have been filed, pursuant to the law of 1837, has already been adverted to. By sec. 10 [sec. 11] of the above mentioned title of the Eevised Statutes, relative to guardians and wards, any guardian appointed by any surrogate, may be cited to account before the surrogate who ap- pointed him, in the same manner as administrators, upon the applica- tion of any ward, or any relative of such ward ; and on good cause being shown, may be compelled to account in the same manner as an administrator. And upon a ward's arriving at full age, he shall be en- titled to compel such account, without showing any cause.(w) The terms of this section are not perfectly explicit in respect to cases where the ward is still an infant. The guardian may be cited to ac- count in the same manner as administrators, and on good cause being shown, may be compelled to account in the same manner. But the statute relative to compelling administrators to account, provides for an order to account, rather than for citing them,(vw) which is peremp- tory in its language in the first instance, and does not require any cause to be shown. The practice, however, on compelling a guardian to account, has been the same as that on compelling an account from an executor or administrator. The ward, or his relative, must present a written peti- tion to the surrogate, setting forth the appointment of the guardian, and the time thereof, the relationship of the petitioner to the ward, if the petition be made by a relative, and the facts and circumstances which render an account necessary from the guardian, and constitute the cause of the application for the account. He should also allege that an account has been applied for and refused ; and the reader is referred for other particulars, which may be included in the petition, to the ob- servations made at a previous page of this work,(M;) on the petition in the similar proceeding of compelling an executor or administrator to account. The prayer of the petition will be, that the guardian be com- (€j 2 Kent's Comm. 22T, and eases cited ; Siabrow v. EensJiaw, 8 Cowen, 349. (u) Wooc[-v. Wood, 6 Paige, 596. («) 2 R. S. 152 ; 4th ed. 335. '^m) See 2 R. S. 92, sec. 62; Ante, p. 446, 454, 46Y, n- to) See ante, p. 462 eiseq. i; 638 RENDERmG AND SETTLING OF ACCOUNTS.; pelled to account before the surrogate. If an allowance for the main- tenance of the infant be desired, the proper allegations of the necessity for such allowance should be embraced in the petition, and a prayer should be included for the granting of the same. On filing the petition, the surrogate makes an order or issues a cita- tion, similar to that in the proceeding on compelling an executor or administrator to account, of which the same number of days' service, (30 days,)(a3) must be given, and the same service must be made as in that case.(2/) On the return day of the order or citation, similar proceedings are to be had before the surrogate for determining the justness and correct- ness of the accounts kept and rendered by the guardian, if the same be disputed, to those in the case of an accounting by an executor or ad- ministrator. Disbursements on account of the ward must be proved by vouchers or otherwise, and witnesses may be examined on either side, touching any of the items in the account, the same as in that case. On the conclusion of the proceedings, the surrogate makes a decree set- tling the account rendered by the guardian, and determining the lia- bility of the guardian for the property of his ward, according to the proofs which have been adduced before him. If an allowance for maintenance has been prayed for in the petition, the proper allowance also should be fixed by the decree. Some further particulars respect- ing this accounting may be gathered from the observations which will presently be made, regarding the settlement of the accounts of a guar- dian, brought on upon his own application, on the expiration of his trust by reason of the arrival of his ward at full age, or his removal from the guardianship. By sec. 11 [sec. 12]. of the above mentioned title of the Eevised Statutes, relative to guardians and wards, every guardian of a ward who shall have arrived at full age, and every guardian who shall be superseded in his trust by another guardian, may apply to the surro- gate who appointed him, for a citation to his ward, or to such new guardian, to attend the settlement of his accounts ; which citation shall be issued by such surrogate, and be served in the manner and at the time herein directed, in case of proceedings for the removal of a guar- dian.(z) The application to the surrogate for a citation under this provision, should be by a written petition, setting forth the fact of the arrival of the ward at full age, or of the superseding of the guardian, and the ap- pointment of a new one, and praying a citation to the ward, or to the new guardian, as the case may be. On presenting the petition to the surrogate, an order for the issuing of the citation is made and entered in his minutes, and the citation issues. The citation is directed to the ward, or to the new guardian, according to the fact of the case, as stated in the petition, and requires the patty to whom it is directed to appear before the surrogate on a certain day and, attend the set* tlement of the accounts of the guardian whose trust has expired, (x) See ante, pp. 446, 454-5. (y) See ante, p. 455. <2) 2 E. S. 152 ; 4th ed. 335. EENDEEING AND SETTLING 0? ACCOtJNTS. 639 or -who lias been superseded. The citation must be served at least fourteen days before the return day thereof, that being the time direct- ed, as will hereafter appear in the case of proceedings for the removal of a guardian. On the return day of the citation, the guardian applying for the set- tlement produces his account, and the vouchers thereof, and the sur- rogate proceeds to determine the justness and correctness of the same. The proceeding, if the account be disputed, is similar to that herein- before described, (a) on the settlement of an account of an executor or administrator on his own application, and also to that above considered, where a guardian is called to account. In treating of the accounting of executors and administrators in a previoiis chapter, (6) this work considered in detail the several subjects of the allowance to be made to executors and administrators for trust property perished or lost without their fault ;(c) their liability for negli- gence in collecting or taking care of the trust funds, securities or prop- erty ■,{d ) their liability for investments made of trust moneys ; (e). their ac- countability for profits growing out of the trust property, anS. the al- lowance to be made to them for the decrease of the same property ;(/) their liability for interest on trust funds retained in their hands ;(§') the allowance to them of commissions as compensation for their services, the rate and manner of charging, the same, (A.) and the disallowance of any other charges for compensation for their services ; the allowance of their reasonable expenses incurred in the discharge of their trusts ;(i) their right to employ agents, accountants, attorneys and counsel, or to act themselves in either of the last two capacities ;(y) and the allowance of interest upon sums advanced by them for the purposes of the trust.(^) Gruardians are subject to the same law as executors and administrators in respect to these various liabilities and allowances, and the principles stated in the chapter indicated, as governing such liabilities and allow- ance where an executor ot administrator is concerned, extend and apply in all things to the relation of guardian and ward. To avoid a repeti- tion, therefore, the reader is referred to that chapter for the requisite instructions in regard to these several particulars applicable to the ac- counting of a guardian. It may be added, that upon the settlement of the accounts of a gen- eral guardian, the surrogate is not authorized to make any allowance to such guardian, for services rendered, or expenses incurred by him pre- vious to his appointm«Bit as guardian. Such services and expenses are not those of the guardian. And for the services of the guardian, as such, the compensation is limited to the commissions allowed by law. (a) See ante, p. ill el seq. (b) Chap. 12. (c) See ante, p. 4T8. (d) See ante, p. 479-81. (e) See ante, p. 482. (/) See ante, pp. 486, 488. (g) See amte, pp. 488, 491. . (ft) See ante, p. 492. See, also, supra, p. 635. (i) See ante, p. 497^ also, supra, p. 635. (j) See ante, pp. 496-498. (k) See ante, p. 500. :640 RENDERING AND SETTLING OF ACCOUNTS. Nor will a promise by the ward, made after coming of age, to pay the guardian for services rendered before the guardianship commenced authorize the surrogate to allow a charge therefor in the accounts of the guardian. Such a promise might give a right of action in a court of law for personal services, but not a right to charge as guardian. In such a case it would be a promise, after the, guardianship ceased, to pay for services rendered before the guardianship commenced. Over such matters the surrogate has no jurisdiction. (M) As a receipt may be explained, qualified, or even contradicted, by any evidence competent to establish a fact, — so it is Erroneous to charge a guardian with the face of a receipt given by him for his ward's prop- erty, and with interest on the amount therein specified, from its date, where it appears that he actually received no money, but only land contracts.(Z) The hearmg on the accounting before the surrogate may be adjourned from day to day, and witnesses may , be summoned by subpoena, and be examined on either side before him, touching any of the items of the account, or any disputed question of fact which may arise in the progress of the controversy. Where, upon the minor arriving at the age of fourteen years, his guardian is superseded in his trust by an order of the surrogate, and a new guardian of the minor is appointed, and proceedings are taken to compel the former guardian to account, the surrogate has the power not only to ascertain and declare the quantity', quality and condition of the ward's property, and the balance due to him from the guardian, but to decree and adjudge the time when, the person to whom, and the manner in which, the same shall be paid or delivered over. And the surrogate has the power to enforce obedience to such a decree by pro- cess of attachment against the person ; notwithstanding the act to abolish imprisonment for debt.(wi) On the conclusion of the proceedings, the surrogate decides upon the questions presented in the case, and a decree is made settling the ac- count of the guardian, and determining the amount of the property of the ward in the hands of the guardian, if any, and ordering the pay- ment of the same to the new guardian, or to the ward, as the case may be. In the Court of Chancery, on the final settlement of the account of a guardian, (mm) the- decree ordered the bond given by the guardian (fti) Clowes V. Van Antwerp, 4 Bar^. S. C. R. 416. (l) White V. FarJcer, 8 Barb. S. C. R. 48. (m) Seamanv. Dwryea, 10 Barb. S. 0. R. 523. (mm) Upon an application to the Court of Chancery to discharge a guardian, and to have his bond delivered up and cancelled, his ward haying arrived of age and settled with the guardian: The Chancellor said it was not the practice of the court to discharge the guardian abso- lutely, and to order his bond to be given up immediately upon the infant's arriving of age, although he had settled with the guardian. That the ward, notwithstanding such setde- ment, was entitled to a reasonable time after he became of age to investigate the accounts of the guardian, and to surcharge and falsify the same, if, upon such investigation he found anything wrong. That, by the practice of the Court of Chancery, he was usually allowed one year for that purpose, after he became of age, before the guardian's bond would be cancelied and the guardian absolutely discharged from his trust. That, where the application to the court was made after the expiration of the year, the bond would be delivered up and can- celled immediately, upon the production of the receipt or discharge of tie ward, duly proved or acknowledged. But if the application was made within the year, the order would only REMOVAL OF GUARDIAN. 641 to be delivered up and cancelled ; and a provision to that effect may, doilbtless, be included in the surrogate's decree in the same case. The practice in regard to the settlement of the decree, if any question arise as to the terms and provisions thereof, may be the same as that herein- before proposed for the settlement jf the decree on an accounting of an executor or administrator, (w) The decree may be enforced in the same manner as decrees against executors and administrators.(nn) K the decree be for the payment of money, the new guardian or the ward may have an execution thereon, pursuant to the provisions of the 63d, 64th and 65th sections of the law of 1837,(o) as amended by the act of 1844, (^) which were considered, and the practice under which was pointed out, in connection with the kindred subject of enforcing decrees for the payment of money against executors and administrators.(g) The decree may also be enforced by a prosecution of the bond given by the guardian under the direction of the surrogate.(r) Of the Removal of Guardians hy Proceedings before Surrogates. The only remaining subject to be considered in this connection, is the removal of guardians by proceedings before surrogates. The following sections of the statutes, taken from the above men- tioned third title of the eighth chapter of the second part of the Re- vised Statutes, concerning guardians and wards, and from the law of 1837, relate to such removals. Sec. 18. [Sec. 14.] On the application of any ward, or of any relative in his behalf, or of the surety of a guardian, to the surrogate who ap- pointed any guardian, complaining of the inconapetency of such guar- dian, or of his wasting the real or personal estate of his ward, or of any misconduct in relation to his duties as guardian, the surrogate, upon being satisfied by proof of the probable truth of such complaint, shall issue a citation to such guardian, to appear before him at the day and place therein specified, to show cause why he should not be removed froifi his guardianship.(s) Sec. 14. [Sec. 15.] Such citation shall be served personally on the guardian to whom it may be directed, at least fourteen days before the return thereof; or, if such guardian sha,ll have absconded or concealed himself, so that such citation cannot be personally served, it may be served by leaving a copy thereof at the last place of residence of such guardian.(<) Sec. 15. [Sec. 16.] The surrogate, at the day appointed for showing only direct the guardian to be discharged, and that the bond be delivered up and cancelled at the expiration of the year ; unless the infant before that time obtained an order to the contrary, or filed with the officer with whom the bond was deposited a caveat, or notice not to deliver up or cancel the bond without the further order of the court. In, the Matter of Van Eorne, 1 Paige, 46. See, also, Fish v. MiUer, 1 Hoffi Oh. Kep. 266. (ra) See ante, p. 544. (rare) See ante, p. 544. \ (o) S. L. 1837, 535 ; 2 R. S. (4th ed.) 421. (p) S. L. 1844, 91. (g) See ante, p. 545 et seq. (r) See 2 R. S. 151, section 8 ; Ante, p. 646. (s) 2 R. S. 152 ; 4th ed. 335. (t) 2 R. S. 162 ; 4th ed. 336. 41 ^42 REMOVAL OF GUAUDIAlSr. cause, and on such other days as he shall appoint, shall proceed to in- quire into the alleged complaint, and shall grant subpoenas to compel the attendance of witnesses to any person applying ; and if satisfied of the incompetency or misconduct of such guardian, he may, by an order to be duly entered in his minutes, remove the said guardian from his trust. Sec. 16. [Sec. 17.] Upon such removal being made, the surrogate may proceed and appoint a new guardian, in the same manner as if no guardian had been appointed.(M) Sec. 45. The fourteenth, fifteenth, sixteenth,' seventeenth, eighteenth and nineteenth sections of title three, chapter eight, of the second part of the.Kevised Statutes,(i;) shall extend to the case of a guardian who has removed or is about to remove from this state. And in case the guardian has removed from this state, the citation mentioned in the said fifteenth section may be served by publishing the same in the state paper for four weeks.(w) Sec. 46. Whenever it shall be made to appear to any surrogate that the sureties of any guardian are becoming insolvent, that they have re- moved or are about to remove from this state, or that for any other cause they are insufficient, and he shall be satisfied that the matter re- quires investigation, he shall issue a citation to such guardian, requi- ring him to appear before such surrogate, at a time and place to be there- in specified, to show cause why he should not give further sureties, or be removed from his guardianship ; which citation shall be served in the same manner as the citation mentioned in the last preceding section is required b}' that section to be served. Sec. 47. On the return of the citation, or at such other time as the surrogate shall appoint, he shall proceed to hear the proof and allega- tions ; and if it shall satisfactorily appear that the sureties are for any cause insufficient, the surrogate may make an order requiring such guardian to give further sureties in the usual form, within a reasonable time, to be prescribed by the surrogate. Sec. 48. If such guardian neglect to give further sureties to the satis- faction of the surrogate, within the time prescribed, the surrogate may, by an order to be dnly entered in his minutes, remove such guardian from his trust. Sec. 49. Sections seventeen, eighteen and nineteen, of title three, of chapter eight, of the second part of the Revised Statutes, shall extend to cases arising under the two preceding sections of this act.(a;) (a) 2 E. S. 153 ; 4th ed. 336. (») The -geotions ahove quoted, with the ITth asth) and 18th (19th,) relating to appeals from decrees of surrogates, upon applications for the appointment or removal of guardians. (w) S. L. 1837, 532 ; 2 E. S. (4th ed.) 336-1. (<5) S. L,, 1837, 533 ; 2 E. S. (4th ed.) 337. The 18th and ISth sections referred to are as follows: Sec. 17. [Sea IS.] Any person interested in the allowance, or appointment, or removal of a guardian, as next of kin, or otherwise, and any guardian who may have been removed by any surrogate, may, within six months after any order shall have been made by a surrogate for the appointment of a guardian, or for his removal, or refusing to make such removal, ap- peal to the Chancellor, who shall make such order for notifying the adverse party, and for correcting any such proceedings, as he may deem just. Sec. 18. [Sec. 19.] But no appeal made by a guardian, from the order of a surrogate re- moving him, shall in anywise affect such order until the same be reversed ; -2 B. §• 153, REMOVAL OF GUARDIAN. 643 Sec. 50. "Where a guardian shall be removed pursuant to the afore- said section, he may be required to account immediately, pursuant to the eleventh section of said tit\e,{y) and application for such account may be made by any new guardian of the minor as well as by the per- sons mentioned in the said eleventh section. The application to the surrogate under either of the above provisions of the statute should be in writing, and should set forth the facts upon which the complaint of incompetency, waste or misconduct against the guardian is founded, or the fact of his removal from the state, or that he is about so to remove, or any of the circumstances relative to his^ sureties specified in the 46th section of the law of 1837 ; and should pray a citation to the guardian for him to show cause, either why he should not be removed from his guardianship, or why he should not give further sureties or be removed according to the grounds of the application. The petition should be under oath, and on presenting the same, the surrogate, if he be satisfied by the proof thus furnished of the probable truth of the complaint, or that the matter requires investiga- tion, upon an order entered in his minutes, issues a citation to the guar- dian pursuant to the section of the statute under which the application is -made. On the return of the citation, if the parties appear, the hearing takes place as in the usual case. If the incompetency, waste or misconduct complained of, or the fact of the removal of the guardian from this state, or that he is about so to remove, be proved, the surrogate makes his order removing the guardian from his trust. Fixed habits of intemperance constitute a sufiicient reason for the removal of a guardian ; and where the wife of a person of such habits, was also a guardian with him, it was held improper that she should be the guardian, she being subject to his control.(2) Where the guardian entered into a speculation with the husband of his ward, who was also an infant, in relation to her estate, and ob- tained a mortgage thereon from both, the court removed the guardian from his trust, and ordered the mortgage to be delivered up and can- celled.(a) The Court of Chancery, it was held, had concurrent jurisdiction with a surrogate in removing a guardian appointed by the latter, for the causes specified in. the Eevised Statutes on that subject ; but the surro- gate had no jurisdiction to remove or discharge a guardian appointed by the Court of Chancery, or to compel such guardian to account, either before or after his removal by the court appointing him.(6) If the application be made on the ground of the insolvency, or the removal, or the intention to remove from this state, of the surety or sureties of the guardian, and the charges in respect thereto be proved, the surrogate makes an order requiring the guardian to give further sureties in the usual form within a reasonable time, commonly five days ; and if the guardian neglect to comply with such order, the sur- rogate orders his removal from his trust. (y) See supra, p. 638 ; 2 R. S. (4th ed.) 337.- (z) Keiikias v. Gardner, 1 Paige, 4.88. (o) In the Matter of Cooper, 2 Paige, 34. (6) In the Matter qf Dyer, 5 Paige, 534. 644 EEMOYAL OP GUAEDIAU. It has already appeared, in tliat chapter of this work treating of the removal of executors and administrators, that by sec. 34 of the law of 1837,(c) whenever it shall appear to the surrogate that letters of admin- istration or letters of guardianship have been granted on or by reason of false representations made by the person to whom the same were granted ; and also, whenever it shall appear that an administrator or guardian has become incompetent by law to act as such, by reason of drunkenness, improvidence, or want of understanding, the surrogate shall have power to revoke such letters. And in case a woman mar- ries after being appointed an executrix, administratrix or guardian, the surrogate, on the application of any person interested, shall have power to revoke such appointment. And that, by the 85th section of the same l&w,{d) whenever it shall appear that the penalty of the bond ta- ken from an executor, administrator or guardian, is inadequate in amount, the surrogate shall have power to make an order requiring him to give additional security for the faithful performance of his duty as such executor, administrator or guardian ; and that, in case of non- compliance with such order, the surrogate may revoke the letters granted to him. The proceedings, under these provisions, for the removal of execu- tors and administrators, were also, in that chapter, considered and pointed out. It is suf&cient in this place to state, that the same prac- tice is to be followed in the case of a like proceeding against a guardian, and to refer the reader to the observations made and the directions given in the chapter indicated, for the proper instructions applicable to the latter case. It also appeared, in connection with the subject of the removal of executors and administrators, that by the 61st section of the law of 1837,(e) whenever any surl-ogate shall issue a citation to any adminis- 'trator, executor or guardian, requiring him to show cause why he should not be removed from office, the surrogate" shall have power to enter an order enjoining such executor, administrator or guardian, from further acting in the premises, until the matter in controversy shall be disposed of; and the practice, on procuring an injunction against an executor or administrator, was there described. It is neces- sary only to add, in this place, that the same practice is to be followed in the like case in procuring an injunction against a»guardian. , 0/ the Resignation hy Guardians of their trusts. The following sections of the statute Inake provision for the resigna- tion by a guardian of his trust to a surrogate. Sec. 51. Any guardian may apply to the surrogate by whom he was appointed, for liberty to resign his trust, setting forth the reasons why the application is made, and verifying the same by his own oath or otherwise. (/) Sec. 52. Such surrogate, in his discretion, may thereupon issue a ci- tation to the ward, requiring him to appear at a time and place to be Ic) See anU, p. 602 ; S. L. 183T, 530. (d) See ante, p. 603 ; S. L. ISST, 530. (ej Bee onfe, p. 596; also p. 601 ; S. L. 183t, 535. (f) S. L. 1837, 633; 2 R. S. (4th ed.) 337. REMOVAL OF GUARDLAJST. 645 therein mentioaed, and show cause why the guardian should not be at liberty to resign his trust. The citation shall be served by deliver- ing a copy to the ward at least ten days before the return day thereof. Notice of the proceeding shall also be given to the next of kin of the ward, if there be any, of the age of discretion, in the county of the sur- rogate. Sec. 53. On the return of the citation and proof of the service of the notice, the surrogate shall appoint some discreet and competent person to appear and attend to ^e interests of the ward in the premises, who shall consent, in writing, to such appointment. Any other [person] who shall be desirous to do so, may also appear on behalf of the ward. Sec. 54. The guardians shall then proceed to render to the surrogate a full, just and true account, in writing, of all his receipts and pay- ments on account of the ward, and of all the books, papers, moneys, choses in action and other property of the ward, which may be in the hands or under the control of the guardian ; and shall verify the same by his own oath, and such other evidence as shall be satisfactory to the surrogate. . Sec. 65. K the surrogate shall be satisfied that the guardian has in all respects conducted himself honestly in the execution of his trust ; that he has rendered a full, just and true account, and that the interest of the ward would not be prejudiced by allowing the guardian to re- sign his trust, he may thereupon proceed in the mode prescribed by law, to appoint a new guardian for such ward, and order that his former guardian deliver over all the books, papers, moneys, choses in action, or other property of the ward, to such new guardian, and take duplicate receipts for the same. Sec. 56. On delivering one'of the said receipts to the surrogate to be filed in his office, the surrogate may enter an order that the former guardian, on his own application, has been permitted to resign his trust, and that he is thereupon discharged from any further custody or eare of the ward or of his estate. But nothing herein contained shall preclude the ward or his new guardian from having a further account from such former guardian, in relation to all matters connected with his trust before he was permitted to resign the same ; and in relation to all such matters, the sureties of the former guardian shall remain liable in the same manner, and to the same extent, as though such or- der had not been made.(g') The practice under these sections, and the . principles wliich apply to the accounting therein mentioned, will readily be gathered from the provisions of the sections themselves, and from the instructions and directions embraced in the preceding pages of this chapter. (g) S. L. 1831, 533-4 1 2 E. S. (4th ed.) 338. APPENDIX OF FORMS. No. 1. Page 144.(a) PETITION TO PROVE WILL. ' County of New York, ) Surrogate's Court. ) To Alexander W. Bradford, Surrogate of the County of New York : The petition of Philip Thompson, of the city of New York, respectfully showeth: That James Thompson, late of the city of New York, merchant, departed this life in the said city, on the tenth day of April, in the year 1855, having previously, as your petitioner is informed and believes, duly made and executed his last wUl and testament. That your petitioner is one of the executors named in the said will. That the said deceased was a citizen of the United States. That he was at or immediately previous to his death, an in- habitant of the county of New York, and that his said last wiU and testament relates to both real and personal estate. Your petitioner further shows, that the heirs and next of kin of the said James Thompson, deceased, are "WUliam Thompson, Samuel Thompson, and your petitioner, all residing in the city of New York, Henrietta~Wilson, wife of Alexander Wilson, residing in the city of Al- bany, in the state of New York, and Mary Jackson, wife of William Jackson, residing in the city of Detroit, in the state of Michigan, all of full age, and Charles Thompson and Henry Thompson, residing in the said city of New York, both minors, having no general guardian, his only surviving children, and Mary Jones and James Jones, residing in the city of New York, both minors, and of whose persons and estates Edward Jones, residing in the city of New York, is the general guardian, the only children of Sarah Jones, deceased, who was a daugh- ter of the said James Thompson, deceased. That Cornelia Thompson, residing in the city of New York, of full age, is the widow of the said James Thompson, deceased. " Your petitioner further shows, that he is informed and believes, that the surrogate of the county of New York has jurisdiction to take the proof of the said last will and testament, and over the executors thereof, and the power of granting letters testamentary thereof, with all powers incidental thereto, and that he is desirous that such proof should be taken and such letters granted, and that such further or other proceedings in the premises should be had, as may be legal and proper. Your petitioner therefore prays, that a citation may issue out o^ and under the seal of this court, to be directed to the proper persons, pursuant to the statute in such case made and provided, requiring them, and each of them, at such time and place as shall be in the said citation mentioned, to appear and attend the probate of the said last will and testament, and that such further or other proceedings in the premises should be duly had, aa may be requisite to the proving and recording of the said last will and testament, and the granting probate and letters testamentary thereof. And your petitioner ^vill ever pray, &c. Dated, this twentieth day of AprU, 1855.(6) Philip Thompson. (a) These pages refer to the body of the work. (4) The following is a, short form of this petitioD, in use in the court of the surrogate of the county of New York: Gov/Kt/y ofWew York, \ ^ Surrogate's Court. \ To AlexakdeeW. Bkadford, Surrogate of the County of New York; The petition of Charles Smith, of the city of New York, respectfully showeth, that your petitioner is sole executor named in the last will and testament of William Smith, late of the city of New Yprk, carpenter, de- ii APPENDIX. Jurat. (See page 144.) State of New York, ) Comity of New York. ) ' On this twentieth day of April, in the year one thousand eight hundred and fifty-five, per- sonally appeared before me, Philip Thompson, the petitioner named in the foregoing petition who being by me duly sworn, did depose and say, that he had read the foregoing petition by him subscribed, and knew the contents thereof, and that the same was true of his own knowledge, excepting as to the matters therein stated on his information and belief, and as to those matters he beUeved it to be true. . A. W. Bradfohd, Surrogate. No. 2. P. 144. CONSENT TO BE APPOINTED AND TO SERVE AS SPECIAL GUARDIAN. Siarogate's Court — County of New York. In the Matter of pbovino the last "WoyL AND Testament OF James Thompson, deceased. I, David R. Jaques, of the city of New York, attorney at law, dcFhereby consent to be appointed by the surrogate of the county of New York, the special guardian for Charles Thompson and Henry Thompson, minors, two of the heirs and next of kin of James Thomp- son, deceased, for the sole purpose of taking care of the interests of the said minors in the matter of proving the last will and testament of the said deceased, and I consent to serve as such special guardian. Dated, this twentieth day of April, 1855. David R. Jaques. No. 3. P. 144. ORDER APPOINTING A SPECIAL GUARDIAN. At a Surrogate's Court, held in and for the county of New York, at the surrogate's office in the city of New York, on the twentieth day of April, in the year one thousand eight hundred and fifty-five. Present — ^Alexander W. Bradford, Surrogate. ■ In the Matter of proving the last Will and Testament OF James Thompson, deceased. It appearing from the petition of Philip Thompson, propounding the last will and testa- ment of James Thompson, late of the city of New York, deceased, for probate, that Charles ceased. That the said deceased was, at or immediately previous to his death, an inhabitant of the county of New York, and departed this life in the city of New Yorlc, on the tliird day o t January last past, and that his said last will and testament relates to both real and persona! estate. Tour petitioner further shows, that tho heirs and next of kin of the said William Smith, deceased, are Henry Smith and your petitioner, his brothers, and Sarah Smith, his Bister, all of full age, and all residing in the city of New Tork. That the said deceased left no widow him surviving. Tour petitioner therefore prays, that said last will and testament may be proved, and letters testamentary granted thereon according to law. Charles Smith. Otty and Oowiity of New York, bs.— I, Charles Smith, the petitioner named in the foregoing petition, be- ing duly 8worn,do depose and say^that I have read the foregoing petition, to which I have subscribed my name, and know the contents tbdreof, and that the matters of fact therein stated are tme, and that the mat- ters therein stated of my information and belief I believe to be true. Sworn this third day of Pebruary, ) Ghaeles Smith. 1855, before mo, J A. W. Beadfobd, ffurrogdte. FORMS ON PROVING "WILLS. ill Thompson and Henry Thompson, two of the heirs and next of kin of the said deceased, are minors, having no general guardian ; and on reading and filing the consent of David _B. Jaques, of the city of New York, attorney at law, to be appointed and to serve as the special guardian for the said minors, for the sole purpose of taking care of their interests in this matter: It is ordered, that the said David R. Jaques be, and he hereby is appointed the special guardian for the said Charles Thompson and Henry Thompson, to take care of their interests in this matter. No. 4. P. 145. ORDER FOR ISSUING CITATION. mie. (See No. 3.) M, &c. (See No. 3.) On reading and filing the retition of Philip Thompson, propounding the last will and tes- tament of James Thompscii, late of the city of New York, deceased, for' probate : It is_ or- dered, that a citation issue to the proper persons, pursuant to the prayer of the said petition, requiring them to appear in this court, on the third day of June next, at ten o'clock in the forenoon of that day, and attend the probate of the said wiU. No. 6. P. 146. CITATION TO PROVE "WILL. The People of the State of New York, To Cornelia Thompson, William Thompson, Samuel Thompson, Edward Jones, the general guardian of the persona and estates of Mary Jones and Philip Jones, minors, and David R. Jaques, the special guardian for Charles Thompson and Henry Thompson, minors, severally- residing in the city of New York, Alexander 'Wilson and Henrietta "Wilson, his wife, resi- ding in the city of Albany, in the state of New York, and "William Jackson, and Mary Jack- son, his wife, residing in the city of Detroit, in the state of Michigan, send greeting: "Whereas, Philip Thompson, of the city of New York, has lately apphed to our surrogate of the county of New York, for the proof of the will of James Thompson, late of the city of New York, merchant, deceased, which said' will relates to both real and personal estate: There- fore, you, and each of you, are cited and required to appear at the office of the said surro- gate, in the city oC New York, on the third day of June next, at ten o'clock in the forenoon of that day, and attend the probate of the said wiU. In testimony whereof, we have caused the seal of office of our said surrogate to be here- unto affixed. Witness, Alexander W. Bradford, surrogate of the county of New [Seal] York, at the surrogate's office in the city of New York, this twentieth day of April, in the year one thousand eight hundred and fifty -five. Alexander W. Bkadford, Sii/rrogate.(c) No. 6. P. 146. PROOFS OF SERVICE OF CITATION. Oity and County of New Tork, ss. — John Smith, of the city of New York, clerk, being duly sworn, doth depose and say, that he served the foregoing citation on the seventeenth day (C) The followinff is the form of the citation eomnionly in nBe : — The People of the State of New Tork, by the grace of God, free and independent: To Henry Smith and Sarah Smith, residing in the city of New York, heirs and next of kin of 'William Smith, deceased, send greeting : — "Whereas, Charles Smith, of the city of New York, has lately applied to onr surrogate of the county of New York, to have a certain instrument in writing, bearing date the twenty-eighth day of December, in the year 1853, relating to both real and personal estate, duly proved as the last will and testament of 'William Smith, late of the city of New York, deceased : Therefore, you and each of you are cited and required, per- sonally, to be and appear before our said surrogate, at his office in the city of New York, on the seventh day of December next, at ten o'clock in the forenoon of that day, then and there to atteud to the probate of the aaid last will and testament. In testimony whereof, the surrogate of our said county has hereunto afQxed his seal of oflfice, the twen- tieth day of October, in the year of our Lord one thousand eight hundred and fifty-four, and of our [t. 8.] independence the seventy-ninth. I A. "W. BsADFOBs, SwrrogaU. iv APPENDIX. of May, instant, on Cornelia Thompson, Edward Jones, the general guardian, and David R Jaques, the special guardian therein named, by delivering a copy thereof to each of them personally, and on the twenty-first day of May, instant, on William Thompson, therein named, by leaving a copy thereof for him, at his residence, with a female of suitable age and discretion, belonging to his family, who stated that he was absent, but that she expected him at home in a short time, and would dehver the said copy to him. Sworn this thirtieth day of May, ) John Smith. A. D. 1855, before me, J Thomas Ward, Commissioner of Deeds. County of Albany, ) City of Albany. \ ^' James Brown, of the city of Albany, clerk, being duly sworn, doth depose and say, that on the fifteenth day of May, instant, he served the foregoing citation on Henrietta Wilsonj therein named, by leaving a copy thereof for her, at her residence, with a person of suitable age and discretion, who stated that she was engaged, and could not see this deponent, and that he would hand the said copy to her immediately. Sworn this twenty-ninth day of ) James Bbown. - May, A. D. 1855, before me, ) Edward Simpson, Commissioner of Deeds. ADMISSION OP SERVICE OP CITATION. (See p. 146.) ON THE BACK OF THE CITATION. I, Alexander Wilson, named in the foregoing citation, do hereby admit due and personal service of the said citation. Dated this twenty- seventh day of May, 1855. ' AIbxandee WiLSON.(d) County of Albany, } City of Albany. J ' Henry Day, of the city of Albany, being duly sworn, doth depose and say, that on the twenty-seventh day of May, instant, he saw Alexander Wilson, named in the foregoing ci- tation, to him personally known, sign the foregoing admission of service of the said citation. Sworn this thirtieth day of May, ) Henry Day. 1855, before me, ) Caleb Hilton, Judge of Albany County CouHs. PROOF OP PUBLICATION OF CITATION. State of New York, ) City and County of Albany. J Philo K. Cole, of the city of Albany, being duly sworn, doth depose and say, that he is the foreman in the ofBce of the Albany Evening Journal, the paper published by the printer to the state, and that the citation of which the annexed is a printed copy, has been regularly published in the said Albany Evening Journal, once in each week, for six weeks succes- sively, commencing on the twenty-second day of April last past. Sworn this twenty-ninth day of ) Philo K. Cole. May, 1855, before me, ) Uriah Cox, Com/missioner of Deeds. (d) If the admission of service be not indorsed on tlie original citation, the citation shonld, of conree, be enfficiently described in the admission. It is understood that in the court of the surrogate of the county or New York, at present, on proving a will of real estate, proof, by affidavit, nf the service of the citation on ail the heirs, Is absolutely required, and admissions or appearances of the parties are not allowed in the place of the same. FOEMS ON PEOVING WILLS. No. 1. P. 148. FOEM OF ENTET OF APPEAEANCES AND OEDEE OF ADJOUENMENT, AND FOR THE ISSUING OF A FURTHER CITATION WHERE THERE HAS BEEN AN OMISSION TO SERVE ANY OF THE PAETIES WITH THE FIRST CITATION. At a Surrogate's Court, held in and for the county of New York, at the surrogate's ^ ■ office in the city of New York, on the third day of June, [the return day of (he first citation,] in the year one thousand eight hundred and fifty-five. Present — Alexander W. Bradford, Surrogate. In the Matter op proving the last Will and Testament OF James Thompson, deceased. Tiiis matter having come on upon the return of the citation heretofore issued therein to the proper persons, requiring them to appear in this court on this day, and attend the pro- hate of the last will and testament of James Thompson, late of the city of New York, de- ceased, and Philip Thompson, one of the executors named in the said will, and the petitioner herein having appeared in person, and by Charles Conner, his counsel, in support of the proof of the said will, and Comeha Thompson, the widow of the said deceased, having appeared by George Lord, her counsel, to contest the said proof, and no other person or party having appeared in the said matter, and the said citation not having been served on Samuel Thomp- son, residing in the city of New York, therein named ; on motion of the said counsel for the petitioner, it is ordered that this matter stand adjourned to the seventeenth day of June, instant, at ten o'clock in the forenoon of that day, and that a further citation issue therein, to be directed to the said Samuel Thompson, requiring him to appear in this court, on the said seventeenth day of June, instant, at ten o'clock in the forenoon, and attend the probate of the said wUl. The further citation, and proof of service thereof will be similar in form to Nos. 5 and 6, ante. No. 8. P. 149. PETITION TO PEOTE A WILL IN A CASE NOT EEQUIRING A CITATION TO BE ISSUED. County of New York, ) Surrogate's Court. ) To Alexander W. Bradford, Surrogate of the County of New York: The petition of Mary Jackson and WUliam Jackson, both of the city of New York, re- spectfully showeth — That James Jackson, late of the city of New York, carpenter, departed this Ufe in the said city, on the twenty-first day of April, instant, having previously duly made and executed, as your petitioners are informed and believe, his last wiU and testament, and that your peti- tioner, Mary Jackson, is the sole executrix named in the said last wiU and testament. That the said deceased was, at or immediately previous to his death, an inhabitant of the county of New York, and that his said last wiU and testament relates exclusively to personal estate. Your petitioners further show, that your petitioner, Mary Jackson, residing in the city of New York, is the widow of the said deceased, and that Jane Jackson, and your petitioner, William Jackson, both residing in the said city, are his only children, and only next of kin. That your said petitioner, William Jackson, is of fuU age, and that the said Jane Jackson is a minor, having no general guardian.(e) Your petitioners farther show, that they are informed and believe, that the surrogate of the county of New York, has jurisdiction to take the proof of the said last wiU and testa- («) It shonld be stated that in the connty of New York, the surrogate will not allow proof of a will in this form where there are minor heirs or next of kin. yi APPENDIX. ment, and over the executors thereof and the power of granting letters testamentary there- ofi with all powers incidental thereto, and that they are desirous that such proof should be taken, and such letters granted, and that such further or other proceedings in the premises should be had, as may be legal and proper. And for as much as your petitioner, Mary Jackson, is the widow, and your petitioner, 'Williain Jackson, and the said Jane Jackson, are the only next of kin of the said James Jackson, deceased, your petitioners pray, tliat your Honor will be pleased forthwith to appoint a special guardian for the said Jane Jackson, to take care of her interest in the premises ; and that, upon the due appearance of such special guardian to take care of such interest, your Honor wiU be pleased to proceed immediately to the necessary examinations for proving the said last will and testament, or that such fur- ther or other proceedings in the premises should be duly had, as may be requisite to the proving and recording of the said last will and testament, and the granting probate and let- ters testamentary thereof. And your petitioners wiU ever pray, &c. Dated this twenty-fourth day of April, A. D. 1855. Maby Jackson. William Jackson. The jurat to this petition will be similar to that in No. 1. The consent to serve as special guardian, and the order of appointment, will be like those at Nob. 2 and 3. "WAIVER AND CONSENT OP SPECIAL GUARDIAN. (See p. 149;) Surrogate's Court — County of New Tork. In the Matter op psoving the last Will and Testament OF James Jackson, deceased. I, Henry De Witt, of the city of New Tork, attorney at law, the special guardian for Jane Jackson, one of the next of kin of James Jackson, late of the city of New York, deceased, duly appointed by the surrogate of the county of New York, to take care of her interest in the matter of proving the last will and testament of the said deceased, do hereby waive tlie issuing and service upon me of a citation to attend the probate of the said last wiU and tes- tament, and consent to the immediate examination of witnesses in this matter.(«e) Dated, this 24th April, 1855. Henry De Witt. ORDER FOR IMMEDIATE PROOF. (See p. 149.) nth. {See So. 3.) At, &c. (See No. 3.) On reading and filing the petition of Mary Jackson and William Jackson, propounding the last will and testament of James Jackson, late of the city of New Tork, deceased, for pro- bate, whereby it appears that the said Mary Jackson is the -svidow, and that Jane Jaokaon, residing in the city of New Tork, a minor, having no general guardian, and the said Wilham Jackson, arc the only next of kin of the said deceased, and on reading and fllmg the stipu- lation, in writing, of Henry De Witt, Ksquire, the special guardian duly appointed to take care of the interests of the said minor in the premises, waiving the issuing and service upoa him of a citation to attend the probate of the said last win and testament, and consenting to tte immediate examination of witnesses in this matter. It is ordered, pursuant to the prayer of the said petition, that the examination of tlie witnesses in this matter be immediately proceeded with. No. 9. P. 150. MINUTE OF ISSUING SUBP(ENA.(/) ntk. (See No. 3.) At, &c. {See No. 3.) Philip Thompson, the petitioner herein, having applied for a subpoena to Clinton Marshall (^) See Note («), No. 8. * if) See 2K. S. 222, (4th ed. 420, 421,) see. T, eubdv. 4; A'nte, chap. 1, p. 25, subdv. 8. FORMS ON PEOYING WILLS. vii and James Clarke, as witnesses in this matter, it is ordered that a subpoena issue according- ly, returnable the seventeenth day of June, instant, at ten o'clock in the forenoon. SUBPCENA TO "WITNESSES. Cownty of New York, ss. — ^The People of the State of New York, to Clinton Marshall and James Clark, greeting : — We command you, that all business and excuses being laid aside, you and [seal.] each of you, personally appear and attend before our surrogate of the county of New York, at his ofBce in the city of New York, on the seventeenth day of June, , instant, at ten o'clock In the forenoon of that day, to testify and give evidence in the matter of proving the last will and testament of James Thompson, late of the city of New York, de- ceased, now pending before our said surrogate. And for a failure to attend, you will be deemed guilty of a contempt of court, and be responsible to the aggrieved party for the loss and hindrance sustained by such failure, and for all other damages sustained thereby, and will forfeit, to such aggrieved party, fifty dollars, in addition to .such damages. Witness, Alexander W. Bradford, surrogate of our said county of New York, at the city of New York, this twelfth day of June, in the year one thousand eight hundred and fifty- five, and of our independence, the seventy-ninth. Chakles Conner, Proctor. Alexander W. Bradford, Surrogate. ORDER THAT ATTACHMENT ISSUE AGAINST A WITNESS FOR DISOBEDI- ENCE TO A SUBPOENA. TiOe. {See No. 3.) At, &c. {See No. 3.) The subpoena heretofore issued in this matter to Clinton Marshall and James Clark, re- quiring them, and each of them personally to appear and attend in this court, on this day, at ten o'clock in the forenoon, to testify and give evidence in this matter, having been duly and personally served on the said Clinton Marshall, and his legal fees, as a witness, having been paid to him, as appears by the affidavit of James Gray, duly filed herein, proving such service and payment by him, and the said Clinton Marshall having failed to appear accord- ing to the exigency of the said subpoena, on motion of Mr. Charles Conner, of council for the petitioner herein, it is ordered that a warrant issue to the sheriff of the city and county of New York, to attach the said Clinton Marshall, and to bring him forthwith personally be- fore this court, to answer for his contempt in not obeying the said subpoena, and to detain him in his custody until he shall be duly discharged. (j) ATTACHMENT FOR DISOBEDIENCE TO A SUBPCENA. The People of the State of New York, to the sheriff of the city and county of New York, greeting : — We command you to attach Clinton Marshall, if he shall be found in your bailie [seal.] wick, and bring him forthwith personally before our surrogate of the county of Nejir York, to answer unto us for certain trespasses and contempts against us, in not obeying our writ of subpoena, issued in due form of law by our said surrogate, to him directed, and on him duly and personally served, and his legal fees as a witness paid him, commanding him personally to appear and attend before our said surrogate, at his ofBce in the city of New York, on the seventeenth day of June, instant, at ten o'clock in the fore- noon, to testify and give evidence in the matter of proving the last will and testament of James Thompson, late of the city of New York, deceased, now pending before our said sur- rogate ; and you are further commanded to detain him in your custody, until he shall be discharged by our said surrogate ; and have with you this writ. Witness, Alexander W. Bradford, surrogate of our county of New York, at the surro- gate's office, in the city of New York, this seventeenth day of June, in the year one thou- sand eight hundred and fifty-five. Charles Conner, Proctor. A. W. Beadpoed, Surrogate. (Cr) " In all orders," says Mr. Kirtland, in his Treatise, " -whereon a warrant or attachment is to be issued the grounds npon which the order is made, and the attachment or. warrant issued, ought to be inserted in them respectively ; and the practice of the Court of Chancery, and courts of generiU powers, will not be ins- tifled in a surrogate, who acts by special and limited powers." SM. Sarr. 36. Yiii APPENDIX. Na 10. P. 158. REQUEST FOB THE EXAMINATION OP WITNESSES. (See p. 28.) Title. {See No. 3.) The subaoriber, the widow of James Thompson, late of the city of New York, deceased, contesting the proof of the will of the said James Thompson, deceased, now pending before the surrogate of the county of New York, hereby makes her request in writing to the said surrogate, that all the witnesses to the said will be examined, and that Thomas Porter and John Corning, residing in the city of Albany, merchants, also be examined as witnesses on ' the part of the subscriber, in opposition to the proof aforesaid. Dated, this seventeenth day of June, 1855. CoBNEiiA Thompson. • GrBOEOB LOBD, Of Counsel for Cornelia Thompson. To Alexander "W. Bradford, Esqr., Surrogate of the county of New York. The affidavit to obtain the order for the examination in another county, of a sick or dis- abled witness residing in such county, should set forth his residence, the necessity for his ex- amination according to the advice of counsel, and the improbability of procuring his attend- ance before the original surrogate. ORDER POR THE EXAMINATION OP SICK OR DISABLED WITNESSES RESI- DING IN ANOTHER COUNTY OP THIS STATE. (See p. 29.) mie. (See No. 3.) At, &o. (See No. 3 ) This matter having come on to be heard on the return of the citations, duly issued to the proper persons, requiring them to appear in this court, and attend the ptobate of the last will and testament of James Thompson, late of the city of New York, deceased, and Philip Thompson, one of the executors named in the said last wUl and testament, having appeared in person, and by Charles Conner, his proctor and counsel in support of the proof thereof, and Cornelia Thompson, the widow of the said deceased, and having the right to contest the said proo^ having appeared by George Lord, her proctor and counsel, to contest the same, and David R. Jaques, the special guardian for Charles Thompson and Henry Thompson, mi- nors, interested in the said matter, having also appeared, and no other party or person hav- ing appeared in the said matter, and the said matter having been beard and duly adjourned from day to day, until this day, and all the witnesses therein, other than those hereinafter mentioned, haying been examined, and the said Cornelia Thompson having duly filed her request in writing that all the witnesses to >the said will be examined, and that Thomas Por- ter and John Corning, residing in the city of Albany, inerchants, also be examined as wit- hesses on her part, in opposition to the proof aforesaid ; and it having been satisfactorily proved that James Clark, one of the subscribing witnesses to the said last wiU and testament, and the said Thomas Porter and John Corning reside in the city of Albany, and that they are, and each of them is infirm, and that it is not probable that their, or either of their at- tendance in this court can be procured within a reasonable time, and that the testimony of the said Thomas Porter and John Coming is material in this matter : On motion of Mr. George Lord, of counsel for the said Cornelia Thompson, it is ordered and directed, that the said James Clark, Thomas Porter and John Corning be examined before Esquire, surrogate of the county of Albany, and that a certified copy of this order under the seal of this court, together with the said will, be deUvered to the said surrogate of the county of Albany on or before Monday, the first day of July next. And it is further ordered, that this matter stand adjourned to the day of August next, at ten o'clock in the forenoon. I, Alexander W. Bradford, surrogate of the county of New York, do hereby certify, that the foregoing is a true copy of an order made by me in the matter of proving the last will and testament of James Thompson, late of the city of New York, deceased, now pending before me. In testimony whereof, pursuant to the statute in such case made and provided, I have hereunto affixed my seal of office, at the surrogate's office in the city of New York, rsBAL.l this nineteenth dayof June, in the year one thousand eight hundred and fifty- five. A. W. Bradpokd. FOEMS ON PROVING "WILLS. ix NOTICE OP EXAMINATION OF "WITNESSES. (See p. 29.) Swrrogaie's Court — County of New York. In thb Matter of pbovingt thb last "Will and Testament OP James Thompson, deceased. You wUl please to take notice, that James Clark, one of the subscribing witnesses to the last -will and testament of James Thompson, late of the city of New York, deceased, and Thomas Porter and John Corning, will be examined as witnesses in this matter, before Esquire, surrogate of the county of Albany, at the office of the said surrogate in the city of Albany, on the sixteenth day of July, instant, at ten o'clock in the forenoon of that day. Dated, this first day of July, 18.55. George Lord, Proctor for Cornelia Thompson, contesting To Philip Thompson, the proof of the said will. David R. Jaqubs, Esq., Special Chmrdian, &c. No. 11. P. 159. AFFIDAVIT FOR COMMISSION. mh. (See No. 3.) City and County of New Yorlt, ss. — Philip Thompson, of the city of New York, being duly sworn, doth depose and say, that ho is one of the executors named in the last will and tes- tament of James Thompson, late of the city of New York, deceased, and the petitioner here- in supporting the proof of the said will. That he has disclosed to Cliarles Conner, Esquire, his counsel in tins matter, the facts which he expects to prove in the said matter, by Nelson Brown, of the city of Mobile, in the state of Alabama, and that the said Nelson Brown is a material witness in support of the proof of the said will, as he is advised by Ins said counsel, and verily beUeves. That the said Nelson Brown does not reside within the state, but re- sides in the city of Mobile, in the state of Alabama, aforesaid. Sworn this seventeenth day of June, ) Philip Thompson. 1855, before me, J "> ' James Cowdbey, Commissioner of Deeds. NOTICE OF APPLICATION FOR A COMMISSION. Title. (See No. 2.) Please to take notice, that on the affidavit, of which the annexed is a copy, an application will be made to the surrogate of the county of New York, at his office in the city of New York, on the thirtieth day of June instant, at ten o'clock in the forenoon of that day, for an order that a commission issue in this matter, to be directed to Jacob Barnard, counsellor at law, John Harris, merchant, and Henry Lawrence, gentleman, all residing in the city of Mo- bile, in the state of Alabama, authorizing them, or any two of them, to examine on oath Nelson Brown, residing in the said city of Mobile, as a witness, in support of the proof of the will of James*'rhompson, deceased, now pending before the said surrogate, on interrogatories to be annexed to the said commission, in which any party to this matter wUl be * liberty to join. Dated this nineteenth day of June, 1855. Yours, &c., Charles Conner, Proctor for Em. To Cornelia Thompson. David R. Jaques, Esq., Guardian ad litem. ORDER FOR COMMISSION. TaU. (See No. 3.) At, &c. (See No. 3.) On reading and filing the affidavit of Philip Thompson, the executor of the said last will and testament, and the petitioner herein, together with notice of motion for a commission APPENDIS. and proof of due service on the other parties to tins matter, and no one appearing to oppose and on motion of Charles Conner, of counsel for the said executor, it is ordered, that a com- mission issue out of and under the seal of this court, to be directed to Jacob Barnard, coun- sellor at law, John Harris, merchant, and Henry Lawrence, gentleman, aU residing in the city of Mobile, in the state of Alabama^ authorizing them, or any two of them, to examine on oath, upon interrogatories to be annexed to the said commission. Nelson Brown, residing in the said city of Mobile, as a witness in support of the proof of the said last win and testa- ment, and that any of the parties to this matter have leave to join in the said commission, and that the same may be returned by mail, addressed to the surrogate of the county of New Tork. No. 12. P. 159. COMMISSION TO EXAMINE FOREIGN "WITNESSES. The People of the State of New York to Jacob Barnard, counsellor at law, John Harris, merchant, and Henry Lawrence, gentleman, all residing in the city of Mobile, in the state of Alabama, send greeting : Know ye, that we, with fuU faith in your prudence and competency, have appointed you commissioners, and by these presents do authorize you, or any two of you, to ex- [SEAL,] amine Nelson Brown, residing in the said city of Mobile, as a witness in the mat- ter of proving the last wiU and testament of James Thompson, late of the city of New Tork, deceased, now pending before our surrogate of the county of New York, in support of the proof of the said will, on oath, upon the interrogatories annexed to this com- mission, to take and certify the depositions of the said witness, and return the same, accord- ing to the directions hereunto annexed. Witness, Alexander W. Bradford, surrogate of our county of New York, at the surro- gate's office in the city of New York, this thirteenth day of jfune, in the year one thousand eight hundred and fifty-five. A. "W. Bbadfoed. Chaelbs Conner, Proctor for Executor. The proper directions for the execution of the commission should accompany the same, in accordance with the provisions of the Revised Statutes. (2 R. S. 393.) No. 13. P. 159. FORM OP INTERROGATORIES TO BE ANNEXED TO A COMMISSION FOB THE EXAMINATION OF A SUBSCRIBING WITNESS. Interrogatories to be administered to W. P. J. and A. N. Z., witnesses to be produced, sworn and examined before R. H. G., commissioner, in the city of Washing- ton, in the District of Columbia, in the matter of proving the last will and tes- tament of H. B., late of the city of New York, single woman, deceased, now pending before the surrogate of the county of New York, under and in pursu- ance of the comanission hereto annexed. First Interrogatory. — ^What is your name, age and occupation, business or profession, and where do you reside ? Second Interrogatory. — Were you acquainted with James Thompson, late pf the city of New York, deceased ? State how long and how intimately you were acquainted with him. Where and when did he die ? Third Interrogatory. — Look at the instrument m writing hereunto annexed, bearing date the eighth day of January, in the year 1 844, purporting to be the last wiU add testament of the said James Thompson, and say whether or not you were present at the time of the execution of the same ? If so, where ? State particularly what took place at the execution of the said instrument ? Who was present ? What was done and said, and by whom. Fowrih Interrogatory. — Was anything said in regard to the witnessing the execution of the said instrument, and by whom, and who were present ? Fifth Interrogatory. — What was done with regard to witnessing the execution of the said instrument, and in whose presence ? Sixth Interrogatory — What was the condition of H. B. as regards the soundness orun- soundess of her mind at the time the instrument was executed ? Seventh Interrogatory. — What was H. B's age. FORMS QN PROVING WILLS. xi EigMh Interrogatory. — Do you know of any other matter or thing relating to the execu- tion of the said instrament, and the condition of the mind of H. B. at the time of its execu- tion ? Answer fully and particularly. The following interrogatories have been annexed to commissions to prove wUls, issued ou t of the Surrogate's Court. They are objectionable as leading, and would not probably be al- lowed in a litigated case. PROCEEDIHQ JBOII THE SECOND INTBEBOGATOEY AS ABOVE. Third Interrogatory. — Look at the instrument in writing hereunto annexed, bearing date the eighth day of January, in the year 1844, purporting to be the last will and testament of the said James Thompson, and say whether or not you were present as a witness at the time of the execution of the same 1 Did you see the said James Thompson subscribe his name to the said instrument, or did he make such subscription in your presence ? Fourth Interrogatory. — If; in answer to the last preceding interrogatory, you shall state that you did not see the said James Thompson subscribe his name to the said instrument, or that he did not make such subscription in your presence, did he, at any time, and when, ac- knowledge to you that he had subscribed the said instrument ? State, if you recollect, in what words he expressed to you such acknowledgment ? Fifth Interrogatory. — Did the said James Thompson, at the time of such subscription, or of such acknowledgment aforesaid, declare that the said instrument so subscribed by him, waS' his last will and testament ? Answer fully and particularly. State, to the best of your re- collection, the language which he used in making such declaration, or in what manner he declared the said instrument to be his last will and testament, and whether you are certain, and how you become so, that he knew that the said instrument was his will. Sixth Interrogatory. — Did the said James Thompson, at the time of such subscription, or acknowledgment and declaration aforesaid, request you to become a subscribing witness to the said instrument ? Answer fully and particularly. State, to the best of your recollec- tion, the language which he used in making such request, or in what manner he made the same. Did you immediately thereupon sign your name to the said instrument. Seventh Interrogatory. — Was the person whose name is signed, together with your own, as a subscribing witness to the said instrument, present at the time of such subscription, or acknowledgment and declaration aforesaid ? Did you see him sign the said instrament as a witness ? Did the said James Thompson request him so to sign the said instrument, and did he so sign the same in his presence ? State the name of the said person, whether he is- now Uving, and where he resides. Eighth Interrogatory. — ^Was the said James Thompson, at the time he so executed the said instrament, of sound mind and memory, and in all respects competent to devise real estate : and was he, or did he appear to you to be under any restraint, and was he competent to transact ordinary business, and to dispose of his property and estate. Ninth Interrogatory. — (Same as the eighth of the above series.) SURROGATE'S ALLOWANCE OF INTERROGATORIES. Present, &c. Title. {As in No. 3.) At, &c. (As in No. 3.) Ordered that the within interrogatories be, and the same are hereby allowed and settled , A. W. Bradford, Surrogate. No. 14. P. HO. THE DEPOSITIONS OF WITNESSES ARE TAKEN W THE FOLLOWING FORM. Sv/rrogate's Court — County of New York. In the Matiee of PROvme the last Will and Testament OF James Thompson, deceased. County of New York, ss.— Samuel Belknap, of the city of New York, a witness, produced, sworn and examined in this matter, on the part of Philip Thompson, the executor named in the last win and testament of James Thompson; deceased, in support of the said will, being. 42 xii APPENDIX. duly sworn and examined before A. W. Bradford, surrogate of the county of New York, doth depose and say : Question. "Were you acquainted with James Thompson, deceased? and if so, how intimate" ly, and how long ? Answer. I was well acquainted with him for several years previous to his death, &c., &o. No. 15. Pp. 154, 1'70. POBMS OP DEPOSITION OP WITNESSES PROVING "WILL. PROOF OP CUSTODY. (See p. 154.)(A) Kile. {See No. 2.) Comity of New York, ss. — Philip Thompson, of the city of New Yorli, being duly sworn and examined before A. "W". Bradford, surrogate of the county of New York, doth depose and say, that he received the instrument in writing, bearing date the eighth day of January, ia the year one thousand eight hundred and fifty-five, purporting to be the last wiU and testa- ment of James Thompson, deceased, from the said James Thompson, immediately after he executed the same, that the said instrument remained in the custody of this deponent until he brought the same to the office of the surrogate of the county of New York, where he deposited the same for probate, and that, whilst the said instrument remained in the custody of this deponent, the same was in no respect altered or changed. Sworn this seventeenth day of ) Philip Thompsoit. June, 1855, before me, ) Alexander "W. Bradford, Surrogate. ANOTHER PORM. Title. {See No. 2.) County of New York, ss. — Edgar Slosson and Philip Thompson, both of the city of New York, being severally and duly sworn and examined before A. "W. Bradford, surrogate of the county of New "York, do depose and say as follows : and the said Edgar Slosson for himself doth depose and say, that at the request of James Thompson, now deceased, he drew and wrote the instrument in writing, now produced and shown to this deponent, bearing date the eighth day of January, in the year one thousand eight hundred and fifty-five, purporting to be the last will and testament of the said James Thompson, deceased, and attend to the ex- ecution of the same, that he received the said instrument from the said James Thompson, immediately after the execution thereof, and that the same remained in the custody of this deponent until the twelfth day of AprU last past, when he handed the same to Philip Thompson, one of the executors thereia named, to take charge thereof; and the said Philip Thompson for himself doth depose and say, that he received the said instrument from the said Edgar Slosson on the twelfth day of April last past, as above stated ; that the same remained in his custody until the twentieth day of April last past, when he brought the same to the office of the surrogate of the county of New York, where he deposited the same for probate. And the deponents further say, that whilst the said instrument remained in their respective custody, the same was in no respect altered or changed. Sworn this seventeenth day of ) ' Edgar Slosson, June, 1855, before me, \ Philip THOMPsON.(i) Alexander "W. Beadpord, Surrogate. DEPOSITIONS OP SUBSCRIBING "WITNESSES. ■Swrrogate's Court — County of New York, In the Matter op proving the last "Will and Testament op James Thompson, deceased, AS A "Will op Real and Personal Estate. Examination of Witnesses, sworn and examined in the above entitled mailer. Cownty of New York, to wit: — Thomas Brown, of the city of New York, being duly sworn as a witness in the above entitled matter, and examined on behalf of the. applicant to prove a,) See 8. L. 188T, 62T, sec. 17 ; 2 E. 8. 66, sec. 58. (i) Proof of custody is taken only in rare cases, at piesent, in tlie court of the surrogate of the county of New York. FORMS ON PROVINa WILLS. XIU said will, says : I was well acquainted with James Thompson, now deceased. I knew the above named decedent for about six years before his death, The subscription of the name of said decedent to the instrument now shown to me and offered for probate as his last will and testament, and bearing date the tenth day of December, in the year one thousand eight hundred and fifty-four, was made by the decedent at the residence of the decedent in the city of New York, in the presence of myseU^ and of James Thorne, the other subscribing wit- ness. At the time of his making such subscription, the said decedent declared the said instrument so subscribed by him to be his last will and testament ; and I thereupon signed my name as a witness at the end of said instrument, at the request of said decedent, and in his presence. The said decedent, at the time of so executing said instrument, was upwards of the age of twenty-one years, and of sound mind, memory and understanding, and not under any restraint, or in any respect incompetent to devise real estate. I also saw said James Thorne, the other attesting witness, sign his name as a witness at the end of said will, and know that he did so at the request of said decedent, and in his presence. Sworn this fifteenth day of ) Thomas Bbown". June, 1855, before me, J Alexander W. Bbadpoed, Swrogate. The other subscribing witnesses each make a simflar deposition. ANOTHER FORM. Title. (See No. 2.) County of Kings, City of Brooklyn, ss. — Clinton Marshall, of the city of New York, being duly sworn and examined before Jesse C. Smith, surrogate of the county of Kings doth depose and say, that he was well acquainted with William Jones, now deceased, that he was present as a witness, and did see the said WUUam Jones subscribe his name at the «nd of the instrument in writing, now produced and shown to this deponent, bearing date the eighth day of January, in the year one thousand eight hundred and fifiy-four, purporting to be the last wiU and testament of the said William Jones, deceased, That the said Wil- liam Jones, at the time of making the said subscription, declared the said instrument to be his last will and testament, and requested this deponent to sign his name as a witness there- to. Thereupon this deponent accordingly signed his name as a witness at the end of the said instrument. This deponent further says, that the said Wilham Jones, at the time he so executed the said instrument, was a citizen of the United States, of fuU age, of sound mind and memory, in all respects competent to devise real estate, and not under restraint, and that this deponent saw James Clark, of the city of AlbaAy, sign the said instrument at the €nd thereof as a witness, in the presence of the said William Jones, and at his request. Sworn this seventeenth day of ) Clinton Marshall. June, 1854, before me, ) Jesse 0. Smith, Surrogate. No. 16. P. 154. IN CASE OF THE DEATH OR NON-RESIDENCE OF EITHER OF THE SOB- SCRIBING WITNESSES, THE PROOF OF HIS HANDWRITING IS AS FOL- LOWS:— Kfe {See No. 2.) GounliyofNew York, ss. — George Jackson, of the city of New York, being duly sworn and examined before A. W. Bradford, surrogate of the county of New York, doth depose and say, that he is well acquainted with De Witt Sampson, late of the city of New York, but now of the city of Cincinnati, in the state of Ohio, and with his manner and style of handwriting, having often seen him write, and that he verily believes that the signaturS ^'De Witt Sampson," signed as a witness-to the instrument in writing, now produced and ' shown to this deponent, bearmg date the eighth day of January, in the year one thousand eight hundred and fifty-four, purporting to be the last will and testament of James Thomp- son, deceased, is the true and genuine handwriting and signature of the said De Witt Samp^ , son, and that thei said De Witt Sampson resides in the city of Cincinnati aforesaid, and is \ not now withiii the jurisdiction of the state of New York. i Sworn this seventeenth day of ) Gboroe Jackson. June, 1854, before me, ) Alexander W. Beabbsbd, Swrogate. xiv APPENDIX. No. IT. P. ItO. ORDER ADMITTING WILL TO PROBATE AND RECORD. Title. {See No. 3.) At, &e. [See No. S.) Satisfactory proof having been made of the due service of the citation heretofore issued ia this matter, requiring the proper persons to appear in this court on the seventeenth day of June last past, and attend the probate of the last will and testament of James Thompson, late of the city of New York, deceased, bearing date the fourth day of December, in the year one thousand eight hundred and fifty-four; and Philip Thompson, the executor named in the said last will and testament, having appeared by Charles Conner, his proctor and counsel, in support of the proof of the same; and Cornelia Thompson, the widow ol the said deceased, having appeared in person and by George Lord, her proctor and counsel, in oppo- sition thereto; and David R, Jaques, the special guardian of Charles Thompson and Henry Thompson, minors, two of the heirs and next of kin of the said deceased, having also ap- peared, and no other parties or persons having appeared in the said matter, and the said matter having been duly heard and adjourned from day to day until, this day; and, after hearing the proofs and allegations of the said Philip Thompson and of the said Cornelia Thompson; and the said David R. Jaques, special guardian as aforesaid, having submitted the rights and interests of the said minors to the care and discretion of this court; and due de- liberation being there®n had; and it appearing, upon the proof taken, that the said was duly executed — that the testator, at the time of executing the same, was in all respects competent to devise real estate, and not under restraint; and the surrogate being satisfied of its genuineness and validity;{j) and, on motion ol Mr. Charles Conner, in behalf of the said executor, it is adjudged and decreed, and the surrogate of the county of New Torlf, by vir- tue of the power and authority in him vested, doth adjudge and decree, that the said last ■will and testament was duly executed — that the same is genuine and valid — that the said last will and testament, and the proofs and examinations taken in respect to the same, be recorded ; and that the said last will and testament be admitted to probate, and that the same be, and hereby is, established as a will of real and personal estate.(J;) The following entry, also, is made in the book of surrogate's minutes in the New York surrogate's office. (See p. 33^) TiUe. {See No. 3.) At, &c., {See No. 3.) The proofs in this matter being deemed sufficient, it is ordered that the said will be ad- mitted to probate, and that the usual decretal order be entered. No. 18. P. ni. COMPLETE RECORD OP WILL. Be it remembered, that heretofore, to wit, on the eighteenth day of August, in the year one thousand eight hundred and forty-five, Anthony A. Jacobus, the sole executor named in the last will and testament of Richard Martin, late of the crty of New York, deceased, appeared in open court, before the surrogate of the county of New York, and made applica- tion to have the said last will and testament, which relates to both real and personaf estate, proved; and, on such application, the surrogate did ascertain, by satisfactory evidence, who were the widow, heirs and next of kin of the said testator, and their respective residences; and some of them appearing to be minors, and having no general guardian residing within the state of New York, a special guardian was appointed, in due form of law, to take care of their interests in the matter of proving the said will, by an order entered for that purpose (J) See S. L. 188T. 52T-8,_ sec. IT ; 2 K. 8. (4tb ed.> 251, sec. 64 ; Ante, p. 152. ^-) The following is the form of the decretal order, on the establishmeDt of a ■will entered in every case in the court of the surrogate of the county of New York. It is the " usual " decretal order referred to In the entry in tlie minutes. (Title.) (At, ifcc.) The executors, next of kin and and heirs at law of said deceased, having this day appeared to attend the probate of said will, in pursuance of the citation heretofore issued, and the proofs and examinations of the eubscribing witnesses to said wili having been duly taken and heard ; and, upon such proof, it appearing sat- isfactory to this court that the said will had been duly executed according to law, and that said testator, at the time of executing the same, was in all respects competent to dispose of his estate; It Is therefore ordered, decided and decreed, that the said will be, and the same Is hereby established fls a valid will, and that the same be admitted to probate and recorded. FORMS ON PROYING "WILLS. XV by said surrogate ; and said surrogate did thereupon issue a citation in due form of law, di- rected to the said widow, heirs and next of kin, and special guardian, by their respective names, stating their respective places of residence, requiring them to appear before said surrogate, at his office in the city of New York, on the eighteenth day of August, then in- stant, to attend the probate of the said will. And afterwards, to wit, on the said eighteenth day of August, satisfactory evidence, by affidavit, was produced and presented to said sur- rogate, of the service of the said citation, in the mode prescribed by law; and, on that day, no one appearing to oppose the probate of such will, such proceedings were thereupon had afterwards, that the surrogate took the proof of said will hereinafter set forth, upon this twentieth day of September, in the year one thousand eight hundred and forty-five; and he adjudged the said will to be a valid will of real and personal estate, and the proofs thereof to be sufficient, which said last will and testament, and proofs, are as follows, that is to say: W I L L.® I, R. M., of the city of New Tork, Gentleman, do hereby make and publish this, MT LAST "WILL AND TESTAMKm\ I BEQUEATH to my wife, absolutely, the wines, liquors, fuel and other consumable house- hold stores and provisions, and the linen, China and glass, together with the moneys and bank notes of common and usual currency, which may be in my dwelling-house at the time of my decease; and also such part of my plate which is engraven with the initials of her father's name, I ALSO giv« to my wife the use and enjoyment, during her life, of the house- hold goods and furniture, fixtures and utensils, (not hereinbefore bequeathed.) and the plate, marked with the initials of my name, and the books, paintings and prints of which I shall die possessed; And from and after her decease, I direct that the same articles be disposed of as p.art of the rusidue of my personal estate: And I direct my executors to cause an in- ventory to be taken of the same articles, before the delivery thereof to my said wife; and two copies to bo made of such inventory, and to be signed by my said wife and executors, of which copies so signed, one shall be delivered to my said wife, and the other kept by my executors. I GIVE AND DEVISE unto my son 7?., ALL THAT my freehold messuage, with the out-build- ings!, garden, &c., tliereto adjoining, situate and being, &o., now in the occupation of, &o., for and during his natural life. And from and immediately after his decease, I devise such he- reditaments unto my son D , and liis heirs forever. And whereas, by virtue of a lease, bearing date on or about the first day of June, 1840, made between A. B., of the first part, and myself] of the second part, I am entitled to the remainder of a term of years, now to come and unexpired, of and in ALL that messuage, tenement or dwelling-house, situate and being in . . . street, in the city of New York, now in the occupation of G. V., with the coach-house, stables, &e., tliereto adjoining or belong- ing, &c. Now I GIVE unto my daughter M. the said leasehold premises, for and during so many years of the said term as she shall happen to live: And from and after her decease, I BEQUEATH tile Same leasehold premises to my grandson, F. M., for the whole residue of the said term, which, may be to come and unexpired therein at the decease of my said daughter M. I GIVE AND DEVISE unto my son <7., for and during his life, provided he shall continue to reside therein, for the term of years next after my decease, all that messuage, situate in street, in the city of Rochester, in the state of New York, and the sta-» ble, garden, &o., thereto belonging, and now occupied with the said messuage by my son G. : And from and after the decease of my said son C, or if he sliall not continue to reside in tlie said messuage and premises for tlie term, and in the manner aforesaid, then I devise such hereditaments, immediately upon the happening of either the said events, to my grand- son, T. L. M,, and his heirs forever. I GIVE AND DEVISE unto F. N., of, &e., and his heirs, ALL that messuage, &c., with the lands thereto adjoining, and usually occupied therewith, situate, Ac, and now in the tenure ot B. S, containing, by estimation, acres, (more or less,) &e., UPON trust, to let the same from year to year, or for any term not exceeding twenty-one years, for the best rent that can be obtained for the same, but without taking any fine or premium therefor; and on receipt of such rent and profits, upon trust, from time to time to apply such rents and profits unto and to the use of B. T. and J. T., two of the children of my daughter M., until the youngest of such children attain the age of twenty-one years. And when and so soon as that event shall happen, I devise the messuage, lauds and hereditaments last (T) This was deemed a proper pkce to include a form of a will, with the attestation. The form siren is taken ftom Taylor's Precedents of Will, 187. xvi APPENDIX. mentioned unto the said S. T. and J. T,, and their heirs forever, as tenants in common, and not as joint tenants. I GIVE AND DEVISE all the rest, residue and remaincjer of my real estates, and I beqdeath the rest of my personal estate unto B. B. and 0. J)., of the city of New York, merchants, their heirs, executors, &c , upon the trusts hereinafter particularly mentioned, hereby giv- ing and granting full power and authority to the said B. B. and C. D., and the survivor of them, and his heirs, to sell such real estates, together or in parcels, either by public auction ,or private contract, at such time and place, or times and places, and subject to such stipolar .tions, relating to the title, or to the payment of the purchase money, (part whereof may be allowed to remain on mortgage of the estates sold, for any reasonable time,) or to any other matters connected with the sale, as my said trustees shall judge expedient, or as their coun- sel shall advise ; which sale of such real estates shall be made as soon as conveniently may tie after my decease ; and also with power for my said trustees to fix a reserved bidding, and buy in any lot or lots at any auction, and to rescind or vary any contract or contracts for sale, without being liable for any consequential loss, and also to execute such instru- ments and assurances as shall be requisite for completing the sale of my said estates, or any of them. And I direct that my said trustees shall convert and get in my residuary personaJ estate, and invest the moneys to arise from such real estates and residuary personal estate in the names or name of the trustees or trustee, for the time being, of my will, in or upon real estate, or any stocks, funds, or other securities in the United States, generally considered good and permanent; with liberty for the said trustees or trustee, with the consent in wri- ting of my said wife, to vary and transpose the investments from time to time for any other investments of the description aforesaid : And upon further trust, to pay over to my said wife the annual income of the said moneys, or the stocks, funds and securities whereOn the same shall be invested, during her life; and after her death, as to the same moneys, stocks, funds and securities, and the income from thenceforth to become due for the same, npos TRUST, to pay thereout to my son B., his executors, administrators or assigns, the sum of $ which sum shall be absolutely vested in him, on my decease, and shall carry interest after the rate of . . . per cent per annum, from the decease of my said wife, until payment thereof; and subject to the payment of the same sum and interest, IN trust for my other children, {naming them,) to be divided equally among them, their respective exec- utors, administrators and assigns, and their respective shares to be absolutely vested on my decease; and the share of my said daughter to be received, enjoyed and disposed of by her as her separate estate, without the control or interference of her present or any future hus- band, and her receipt to be (notwithstanding coverture) an effectual discharge for the same. And I hereby declare, that my said trustees or trustee shall have a discretionary power to postpone, for any period not considered illegal by the laws of this state, the conversion or getting in of any part of my residuary personal estate, which shall, at my decease, consist of stocks, funds or securities, of any description whatever: And I further declare,, that my last devised real estates and hereditaments, from the time of my decease, shall be considered as absolutely converted into personal estate, and subject to the trusts lastly hereinbefore con- tained. I devise all my real estate, vested in me as trustee or mortgagee, to the said B. B. and 0. D., subject to the equities affecting the same respectively. I EMPOWER the trustees or trustee for the time being of this my will, to give receipts for all moneys and effects to be paid or delivered to such trustees or trustee, by virtue of my Vfill, and declare that such receipts shall exonerate the persons taking the same from alUia- • bility to see to the application or disposition of tlie money or effects therein mentioned. I ALSO EMPOWER the trustees or trustee for the time being of my will, to compound or allow time for the payment of any debt or debts due or to become due to my estate, to pay all debts due from me according to their legi^l priority, and to settle all demands against my es- tate, and all and all manner of accounts between me and any person or persons, on such terms as my said trustees or trustee shall in their or his discretion think expedient, and to "refer any matters in difference relating to my affairs to arbitration. And I hereby declare, that if my said trustees, or any of them, or any person or persons to be appointed under this clause, shall die, or be unwilling or incompetent to execute the trusts of my will, it shall be lawful for ray wife, during her life, and after her death, for the^competent trustees or trustee for the time being, (if any,) whether retiring from the oflBce of trustee or not, or (if none) for -' the executors or aSministrators of the last surviving trustee, to substitute, by any writing '[ ' under their or his hands or hand, any fit person or persons to be trustees or trustee, in whom alone, or (as the case may be) jointly with the surviving or continuing trustees or trustee, jny' trust estate shall be vested. And I exempt every trustee of my will from liability for losses occurring without his own wilful default, and authorize him to retain and allow to his co-trustees or co-trustee all expenses incidental to the trusteeship. I appoint the said B. B. and 0. D., executors of this my last will and testament. I hereby revoke and annul any will or wills heretofore executed by me. FORMS ON PEOTING WILLS. xvi In witness whereof I have hereunto set my haud this day of in the year one thousand eight hundred and fifty R. U.{m) Witnesses. 0. P , residing at No. Broadway, in the city of Now York. S. T., residing at No. Bowery, in ttie city of New Yorlc.(n) Subscribed by R. .Vf., the testator named in the foregoing will, in our presence, and at the time of making suoh subscription declared by the tustator to be his last will and testament, and each of us signs his name as a witness at the end of the will, at the request of the testa- tor, and in his presence.(o) 0. P.. residing, &a. S. T., residing, 4o. Then follow the DEPOSITIONS AND TESTIMONY OP THE WITNESSES. (certificate at the end of the eecokd.) County of Mw York, ss. — Recorded the preceding last will and testament of R. M., de- ceased, as a will of real and personal estate, together with the proofs taken in the court of the surrogate of the county of New York relating to the said last will and testament ; which record is hereby signed and certified by me, pursuant to the provisions of the Revised Stat- utes, this twentieth day of September, one thousand eight hundred and fifty-four, (p) Alexander W. Bradford. No. 19. P. ITI. CERTIFICATE ON WILL. Gowrdy of New York, ss. — Be it remembered, that on the day of the date hereof, the last will and testament of James Thompson, late of the city of New York, deceased, (being the foregoing written instrument,) was duly proved before A. W. Bradford, surrogate of the said county, according to law, as and for the last will and testament of the real and personal estate of said deceased ; which said last will and testament, and the proofs and examinations taken thereon, are recorded in this office. In testimony whereof, the surrogate of the said county hath hereunto set his [seal.] hand and affixed his seal of office, this eleventh day of August, in the year of our Lord one thousand eight hundred and fifty-five. Alexander W. Bradford, Surrogate. No. 20. Pp. 112, 194. FORM OP. PROBATE. A correct copy of the Will, with the following Certificate: County of New York, ) ISurrogaie^s Office, f Be it remembered, that on the day of the date hereof, the last will and testament of James Thompson, late of the city of New York, deceased, bearing date the seventh day of N^em- ber, one thousand eight hundred and thirty-seven, (the foregoing being a true copy thereof^) was duly proved before A. W. Bradford, surrogate of the said county, according to law, as (m) By the Eevised Statutes it is not necessary to seal a will. (n) This form of attestation follows strictly the words of the statute, "which prescribes that each of the wit- nesses " shall sign his name as a witness at the &nd, of the wiU."^ (p) This attestation certificate is a summary of the ceremonies usually observed on the execution, of a will. {p) The following is suggested as a form of this certificate more strictly in accordance with the provisionB of the 14th section of the Eevlsed Statutes. (2 E. S. 58.) Coit/niy ofNev) Yorh, ss. — It appearing upon the proofs duly talten in respect to the last will and testa- ment of James Thompson, late of the city of New York, deceased, that the said will was duly executed, and that the said James Thompson, at the time he executed the same, was in all respects competent to devise' real estate, and not under restraint, the said last will and testament, and the said proofs and examinations are hereby recorded, signed and certified by me, pursuant to the provisions of the Eevlsed Statutes, this seven- teenth day of July, in the year of our Lord one thousand eight hundred and fifty-five. A. V. B. , Xviii APPENDIX. and for the last will and "testament of the real and personal estate of said deceased • which said last will and testament, and the proofe and examinations taken thereon, are recorded in tliis office. In testimony whereof; the surrogate of the said county hath hereunto set his [seal.] hand and afSxed his seal of office, this eleventh day of August, in the year of our Lord one thousand eight hundred and fifty-five. Alexander W. Bradsokd, Surrogate. County of New York, ) Surrogate's Office, ) ^' Be it remembered, that on the day of the date hereof, Philip Thompson, the sole executor named in the last will and testament of James Thompson, late of the city of New York, de- ceased, having first taken and subscribed an oath faithfully and honestly to discharge the duties of such executor, letters testamentary were granted to him accordingly. In testimony whereof^ the surrogate of said county hath hereunto set his hand '[seal.] and affixed his seal of office, the eleventh day of August, one thousand eight hun- dred and fifty-five.(}) A. W. BRADroRD, Swrrogate. No. 21. P. 170. ORDER SETTING ASIDE A "WILL. Title. {See No. 3.) At, &c. (See No. 3.) Satisfactory proof having been made of the due service of the citation heretofore issued in this matter, requiring the proper persons to appear in this court, on the seventeenth day of June last past, and attend the probate 'of the last will and testament of James Thompson, late of the city of New York, deceased, and Philip Thompson, the executor named in the said last will and testament, having appeared by Charles Conner, his proctor and counsel, in support of the proof of the same, and Cornelia Thompson, the widow of the said deceased, having appeared in person and by George Lord, her proctor and counsel, in opposition there- to, and David R. Jaques, the special guardian of Charles Thompson and Henry Thompson, mi- nors, two of the heirs and next of kin of the said deceased, having also appeared, and no other parties or persons having appeared in the said matter, and the said matter having been duly heard, and adjourned from day to day until this day, and the instrument in writing, bearing date the eighth day of January, in the year one thousand eight hundred and fifty- four, purporting to be the last wiU and testament of the said James Thompson, deceased, having been produced, and Clinton Marshall and James Clark, two of the subscribing wit- nesses to the said instrument, having been duly examined touching the facts and circum- stances attending the execution thereof, and the competency of the said James Thompson to execute the same as and for his last will and testament, and after hearing the proofs and al- legations of the said Philip Thompson, and of the said ComeUa Thompson, and the said David R. Jaques, special guardian as aforesaid, having submitted the rights and interests of the said minors to the care and discretion of this court, and due deliberation being thereon had, and on motion of Mr. George Lord, of counsel for the said Cornelia Thompson, it'ia ad- judged and decreed, and the surrogate of the county of New York, by virtue of the power and authority in him vested, doth adjudge and decree, that the said instrument in writing (q) TTisae two certificates raaypro^erhj, it is suggested, T>e ernbodied in one, in the foUowkig form ;— State of New York, ) Oomiy of New York,. ]^' I, A. W. B,, surrogate of the county of New York, do hereby make known and certify to all whom it may conceru,that the foregoing is a true copy of the last will and testament of James Thompson, late of the city of New York, deceased, and of the whole thereof, and that the said last will and testament was. on this seven- teenth day of Juno, in the year one thousand eight hundred and fifty -four, duly proved before me according to law, and by me admitted to probate, and recorded in the office of the surrogate of the county of New York ; and further, that the administration of all and singular the goods, chattels and credits of the said James Thompson, deceased, and the execution of the said last will and testament, were, on the same day, duly granted and committed by me to Philip Thompson, one of the executors named in the said will, he hav- ing first duly taken and subscribed an oath that he would faithfully and honestly discharge the duties of ex- ecutor thereof, which oath is filed in the ofllce of the surrogate aforesaid. In testimony whereof, I, the said surrogate, have hereunto set my hand and affixed my seal of of- [L. 8.] flee, at the surrogate's ofllce in the city of'Ncw York, this seventeenth day of June, in the year one thousand eight hundi-ed and fifty-five. A. W. B., SwrrogaU, GEANTING LETTERS TESTAMBNTAET. xix was not executed and attested in the manner prescribed by law for the execution and attes- tation of last wills and testaments; and further it is declared, and the surrogate aforesaid, by virtue of the power and authority aforesaid doth declare, that the said instrument in wri- ting is utterly null and void, as or for the last wiU and testament of the said James Thomp- son, deceased; and further the said surrogate doth order, that the costs of all the parties to this proceeding, and the fees and expenses thereof, be paid out of the estate of the said de- Fo. 22. P. 182. REOOED OF FOREIGN WILL ON AN EXEMPLIFICATION. The ExempUficaMon is entered in full upon the Secord, and the following Certificate is appended: County of New York, ss. — I, David B. Ogden, surrogate of the said county, do hereby cer- tify to all whom it may concern, that the last will and testament, with three codicils of Abraham Beach, late of the county of Somerset, in New Jersey, deceased, has been duly ad- mitted to probate by me, upon the production of a duly authenticated copy thereolj from under the seal of the court in which the same was proved ; and I further certify that the foregoing is a correct, record of such authenticated copy. In testimony whereof, I have hereunto set my hand, this seventeenth day of [seal] November, in the year of our Lord one thousand eight hundred and forty-three. Davtd B. Ogdbn. No. 23. P. 197. CONSENT OF HUSBAND THAT LETTERS TESTAMENTARY ISSUE TO HIS WIFE- I, Alexander Wilson," of the city of Albany, merchant, the husband of Jane "Wilson, the executrix named in the last will and testament of James Thompson, late of the city of New York, deceased, do hereby consent that letters testamentary of the said last win and testa- ment issue to the said Jane Wilson, and that she take upon herself the burden of the execu- tion thereof Dated this eighteenth day of June, A. D. 1855. Alexander Wilson. No. 24. P. 46. AFFIDAVIT OF INTENTION TO FILE OBJECTIONS AGAINST THE GRANTING LETTERS T:ESTAMENTAEY. SwrogcUe's Court — County of New York. In the Matter of the Goods, Chattels AND Credits OF James Thompson, deceased. City and County of New York, ss. — Cornelia Thompson, of the city of New York, being duly sworn, doth depose and say, that she is the widow of James Thompson, late of the city of New York, deqpased, whose last wiU and testament has lately been admitted to probate by the surrogate of the county of New York, and of which said wiU Philip Thompson is named one of the executors. That she is a legatee under the said last will and testament, and in- tends to file objections against the granting of letters testamentary thereof to the said Philip Thompson, and that she is advised and believes that there are just and substantial objections to the granting of such letters to the said Phihp Thompson. Sworn this tenth day of June, ) . Cornelia Thompson. 1855, before me, f John Wells, Commissioner of Deeds. ■y-ir APPENDIX. OBJECTIONS AGAINST THE GRANTING OP LETTERS TESTAMENTARY. ; Title. (As above.) To Alexander W. Bradford, Surrogate of the County of New York: The objections of Cornelia Thompson, of the city of New York, widow, a legatee nnder the last will and testament of James Thompson, late of the city of New York deceased, against the granting of letters testamentary of the said last will and testament to Philip Thompson, one of the executors therein named. First Objection. — That the said PhiUp Thompson is incompetent to execute the duties of his trust as executor of the said last will and testament, by reason of improvidence. Second Objection. — That the circumstances of the said Philip Thompson are such as not to afford adequate security to the creditors, legatees and relatives of the said deceased for the due administration of the estate ; that he has recently failed in his business as a merchant ill the city of New York, and become insolvent ; and that the debts owing by the said Philip Thompson greatly exceed the amount of property belonging to him. Dated this sixth day of July, A. D. 1855. Cornelia. Thompson. . GEOEas LoHD, Of Covmelfor Objector. ORDER THAT EXECUTOR APPEAR TO ATTEND INQUIRY. Title. {As above.) At, &c. {See No. 3.) On reading and filing the objections of Comeha Thompson, the widow of James Thompson, late of the city of New York, deceased, and a legatee under his last will and testament, against the granting of letters testamentary of the said last will and testament to Philip Thompson, one of the executors therein named : It is ordered that the said Philip Thompson appear before the surrogate of the county of New York, at his office in the city of New York, on the tenth day of July, instant, at ten o'clock in the forenoon of that day, and at- tend the inquiry into the said objections. Alexandbb "W. Beadford, Swrogate. Geoegb Loed, Proctor for Objector. ORDER THAT OBJECTOR PROCEED WITH INQUIRY. Title. (As above.) At, &c. (See No. 3.) Cornelia Thompson, the widow of James Thompson, late of the city of New York, deceased, and a legatee under his last will and testament, having filed objections against the granting, of letters testamentary of the said last wUl and testament to Philip Thompson, one of the exe- cutors therein named : On motion of Mr. Charles Conner, of counsel for the said PhiMp Thomp- son, it is ordered, that the said Cornelia Thompson appear before the surrogate of the county of New York, at his office in the city' of New York, on the tenth day of July, instant, at ten o'clock in the forenoon of that day, and proceed with the inquiry into the said objections. Alezandee "W. Beadfoed, Sv/rrogate, ^ Chaeles Conner, Proctor for Executor. DECREE ON OBJECTIONS. TiOe. (As above.) At, &c. (See No. 3.) CorneUa Thompson, the widow of James Thompson, late of the city of New York, de- ceased, and a legatee under his last will and testament, havmg duly filed her objections against the granting of letters testamentary of the said last wUl and testament to Philip Thompson, one of the executors named therein, and the surrogate having inquired into the said objections, and due proof having been take'n, and, after hearing counsel for thq respective parties, it is adjudged and decreed, and the surrogate, by vu'tue of the autSoriiy in him vested, doth adjudge and decree, that [*] the said Philip Thompson is incompetent, by reason of improvidence, to execute the duties of his trust as such executor, and that letters testamentary - of the said last wHl and testament be refused to the said Philip Thompson. ' Or proceeding from the [*] the circumstances of the said Philip Thompson are such as not to afford adequate security to the creditors, legatees and relatives of the auid de- GRANTING LETTERS TESTAMENTARY. xxi ceased, for the due administration of the said estate. And further, the said surrogate doth order, that such letters testamentary aforesaid be refused to the said Philip Thompson, until he shall give the like bond as is required by law of administrators in cases of iniestacy. DECREE DISMISSING OBJECTIONS. Proceeding from the [*] the said objections be dismissed. And further, it is ordered that such letters testamentary aforesaid issue to the said Philip Thompson, and that the said Cornelia Thompson pay the costs of the said Philip Thompson on this proceeding, and the fees and expenses thereof, to be taxed.(r) No. 26. P. 203. FORM OP RENUNCIATION. Surrogate's Court — Gowrdy of Neni) York. In the Matter op the Goods, &c., OF James THOitPSOir, deceased. I, Charles Jones, of the city of New York, gentleman, one of the executors named and appointed in and by the last will and testament of James Thompson, late of the city of New York, deceased, do hereby renounce the said appointment, and all right and claim to letters testamentary of the said last will and testament, or to act as executor thereof, and pray the surrogate of the county of New York to accept and record this, my renunciation. Dated this eighth day of June, A. D. 1856. Charles Jones. Signed in the presence of John Strong, Henry Smith. The proof of the execution of the renunciation may be by affidavit, or by acknowledg- ment, before a commissioner or other proper officer. No. 26. P. 202. PROCEEDINGS TO OBtIiN A DECREE THAT A PERSON NAMED AS EXEC- UTOR HAS RENOUNCED. Surrogate's Court. County of New TorJc, ) To A. W. Bradford, Surrogate of the County of New York: The apphoation of Harris Gibbons, of the city of New York, m^chant, respectfully show- eth, that he is a creditor of James Thompson, late of the city of New York, deceased. That the last will and testament of the said James Thompson, deceased, was proved before the sur- rogate of the county of New York, on the seventeenth day of June last past, and that Philip Thompson, a person named and appointed as one of the executors thereof, has not yet ap- peared to qualify and take upon himself the execution of the said last will and testament. That the said Philip Thompson resides in the city of New York. The said applicant therefore applies for a summons, to be issued out of and under the seal of this court, pursuant to the statute in such case made and provided, to be directed to the said Philip Thompson, requiring him to appear in this court and qualify as one of the exe- cutors of the said last will and testament, within a certain time therein to be limited; or that, in default thereof he will be deemed to have renounced the said appointment. Dated this first day of July, A. D. 1855. Harris Gibbons. James Mitchell, Proctor for Applicant. City and County of New York, ss. — On this first day of July, in the year 1855, personally- appeared before me, Harris Gibbons, named in the foregoing application, and made oatb (r) The payment of these costs may be enforced by attachment. xxii APPENDIX,. that he had read the said application, and knew the contents thereof, and that the matters of fact therein stated were true. Aakon Jones, Commissioner of Deeds. ORDER FOR ISSUING SUMMONS. At,&c. {See No. 3.) In the Mattee op the Goods, Chattels, AND Credits OF James Thompson, deceased. On reading and filing the appli'cation of Harris Gibbons, a creditor of Jamea Thompson, late of the city of New York, deceased, it is ordered that aaunimons issue to Philip Thomp- son, a person named and appointed as one of the executors of the last will and testament of the said James Thompson, deceased, requiring him personally to appear in this court, befors or on the eighth day of August next, at ten, o'clock in the forenoon of that day, and qualify as one of the executors of the last will and testament aforesaid; or that, in default thereof, he will be deemed to have renounced ihe said appointment. SUMMONS ON THE ABOYE ORDER. The people .of the state of New York, to Philip Thompson, named and appointed one of the ex' cutors of the last will and testament of James Thompson, late of the city of New York, dfceased. You are hereby summoned, and required to appear before the surrogate of the county of New York, at his ofBce in the city of New York, before or on the eighth day of August next, at ten o'clock in the forenoon of that day, and qualify as one of the executors of the last will and testament aforesaid, or, in default thereof, you will be deemed to have re- nounced the said appointment. In testimony whereof, we have caused the seal of of6ce of our said surrogate to be hereunto affixed. Witness, Alexander W. Bradford, surrogate of our said county of New SEAL. York, at the city of New York, the twentieth day of July, in the year one thou- sand eight hundred and fifty-five, and of our independence the eightieth. A. W. Bbabporb. DECREE THAT EXECUTOR HAS RESSDUNCED. ntle. {See No. 26.) At, &c. '{See No. 3.) , "Whereas Harris Gibbons, of the city of New York, merchant, a creditor of James Thomp- son, late of the city of New York, deceased, lately made application to the surrogate of the county of New York, for a summons to be issued pursuant to the statute in such case made and provided to Piiilip QJ)iompson, a person named and appointed as one of the executors of the last will and testament of the said James Thompson, deceased, requiring him to appear in this court and qualify as one of the executors of the said last will and testament, or that ■ in default thereof, he would be deemed to have renounced the said appointment ; and whereas a summons was thereupon duly issued, directed to the said Philip Thompson, and personally served upon him, as appears by the affidavit of such service duly filed herein, and which said summons and proof of such service thereof are as follows: — [insert summons and affida- vit of service.'] And whereas the said Philip Thompson has neglected to appear and qualify as required by the said summons, it is declared and decreed, pursuant to the statute in such case made and provided, and the surrogate of the county of New York, by virtue of the power and authority in him vested, doth declare and decree, that the said Philip Thompson has renounced his appointment as executor of the last will and testament of the said James Thompson deceased, and it is ordered that the fees of this proceeding be paid out of the es- tate of the said James Thompson, deceased. No. 21. P. 200. EXECUTOR'S OATH. Oity and County of New York, ss. — I, Philip Thompson, one of the executors named la the last will and testament of James Thompson, late of the city of New York, deceased, being ' GRANTING LETTERS TESTAMENTARY. xxiii duly sworn, do swear and declare, that I reside in the city of New York, and that I will faithfully and honestly discharge the duties of executor of the said last will and testament. Philip Thompson. Sworn this twenty-fifth day of July, ) A. D. 1855, before me, f , ALEXiNDEB W. BRA.DPOKD, Surrogate. No. 28. P. 201. LETTERS TESTAMENTARY. The People of the State of New York, by the grace of God free and independent, to all to whom these presents shall come, or may concern, send greeting ; Know ye, that at the county of New York, on the twenty-filth day of August, in the year of our Lord one thousand eight hundred and fifty-five, before Alexander W. Bradford, sur- rogate of our said county, the last will and testament of James Thompson, deceased,(s) was proved, and is now approved and allowed by us : and the said James Thompson having been, at or immediately previous to his death, an inhabitant of the county of New York, by reason whereof the proving and registering of said will, and the granting administration of ali and singular the goods, chattels and credits of the said testator, and also the auditing, allowing and final discharging the account thereof, doth belong unto us, the administration of all and singular the goods, chattels and credits of the said deceased, and any way concerning his will, is granted unto Philip Thompson, one of the executors in the said will named, he being first duly sworn faithfully and honestly to discharge the duties of such executor according to law. In testimony whereof, we have caused the seal of offtce of our said surrogate to be hereunto annexed. Witness, Alexander W. Bradford, Esquire, surrogate of our [l. a] said county, at the city of New York, the tweniy-tifth day of August, in the year of our Lord one thousand eight hundred and fifty-five, and of our independence the eightieth. A. "W. Bradpokd. Oounty of New York, } Swirogate's Office. ) Recorded the preceding letters in liber No. 6 of Letters Testamentary, page 225, the twenty fifth day of August, one thousand eight hundred and fifty-five. Alexander W. Beadeokd. No. 29. P. 224. PETITION FOR LETTERS OP ADMINISTRATION. Comity of New York. — Surrogate's Court. In the Matter op the Administration OP THE Goods, Chattels and Credits OP j John Kbllt, deceased. J To Alexander W. Bradford, Surrogate of the County of New York : Tbe petition of Eliza Kelly, of the city of New York, respectfully showeth, that she is the widow of John Kelly, late of the city of New York, gentleman, deceased, That the said John Kelly died a natural death, and died intestate, as your petitioner verily believes. That your petitioner has made diligent search and inquiry for a will of the said deceased, and has not found any, or obtained any information that he left or ever made one. That your pe- titioner has, to the best of her ability, estimated and ascertained the value of the personal properly of which the said deceased died possessed, and that the same does not exceed in value the sum of about five thousand dollars. That the said intestate left kindred entitled to his estate, whose names and places of resi- dence are as follows: Henry Kelly and William Kelly, residing in the city of New York, («) Immediately after this word deeeased was Inserted in the old forma, the words, " (a copy whereof la hereunto annexed,)" and the letters were attached to a copy of the will, and, together with the wilL formed the probate. xxiv APPENDIX. Snd Sarah Blake, wife of William Blake, residing in the city of Troy, in the county of Rens- selaer, his only surviving children, and George Kelly, residing in the city of New York, a minor, having no general guardian, the only child of Samuel Kelly, deceased, who was a son of the said intestate. Tour petitioner further showeth, that the said intestate, at or immediately previous to his death, was an inhabitant of the coupty of New York; that your petitioner is of full age, and that she is informed and believes that the surrogate of the county of New York has sole and exclusive power to grant letters of administration of the goods, chattels and credits of the said intestate. She prays that such letters may be granted to her in pursuance of the stat* late in such case made and provided. And your petitioner will ever pray, &c. Eliza Kelly. Dated this fifth day of February, 1855.(<) State of New York, ) County of New York. ) On the fifth day of February, in the year one thousand eight hundred and fifty-five, per- Bonally appeared before me, Eliza Kelly, the petitioner named in the foregoing petition, who- being by me duly sworn, did depose and say, that she had read the foregoing petition by her subscribed, and knew the contents thereof, and that the same was true of her own knowl- edge, excepting as to the matters therein stated on her information and belief, and as to those matters she believed it to be true. Albxanbeb W. Beabfobc. If the petitioner desire to have another person joined in the administration, the last cUmse of the petition will he as follows : She prays that such letters may be granted to her, and to Jacob 'Waring, residing in the city of New York, merchant, to be joined with her in the administration, pursuant to the statute in such case made and provided ; and she hereby consents to have the said jMob "Waring so joined in such administration. (i) The following is a form of this application at present in use in the court of the surrogate of the county of New York : Otyu/nify of Neva Tork.— Surrogate's CovH. In the Matter of the Application foe i Letters op Administration on the ] Estate of D. T., decbasbd. GmuKty oJNeiD York, to wit:^—l, A. T., of the city of New York, merchaut, being duly sworn and exam- ined, do depose and say, that I am the son of the said deceased ,' that said deceased departed this life at the city of New York, on the twenty-first day of September last past, without leaving any last will -and testa- ment to my knowledge, information or belief; that said deceased died a natural death, ancf died possessed of certain persnnal property in the state of New York, the value whereof does not exceed the sum of about ten thousand dollars, as I have been informed and believe ; that said deceased has left him surviving this deponent, his only surviving child, and "W. B. and J. S., both residing in the city of New York, and both minors, the only children of M. S., deceased, who was a daughter of the said D. T., deceased, his only next of kin ; that the said deceased did not leave a widow him surviving ; that this deponent is of full age ; that said deceased was, in his lifetime, a physician, and was, at or immediately previous to his death, an Inhabitant of the county of New York. And I pray that letters of administration be granted on the estate of said deceased, by the surrogate of the county of New Ywrk, to^-me. ^ Bworn before me, this first I A. T. day of June^ 1855. J Alexander W. Bradford, Surrogate. Cownh/ of New York, ss. — I, A. T., of the city of New York, merchant, do solemnly Bwear and declare, that 1 will well, honestly and faithfully discharge the duties of administrator of the estate of I>. T., late of the rity of New York, deceased, according to law. Sworn before me, this ^rst ] A. T. day of June, 1855. j Alexander W. Bradford, Surrogate. At a Surrogate's Court, held in and for the county of NeTV York, at the surrogate's office, in the city of New York, on the first day of October, in the year 1855. Present — Alexander W. Bradford, Swrrogsite. In the Matter of ths applicaHoTi for Letters of Ad- { mdnistraHon on the Mttate ofD. T., deaeasea. f It is ordered that letters of administration in this matter be granted to A. T., of the city of New York, merchant, the son of the said deceased. GEANTING ADMINISTRATION. XXV PETITION "WHERE THE PARTY APPLYING IS REMOTELY ENTITLED. Title: {See above.) To Alexander "W. Bradford, Surrogate of the county of New York. The petition of Mary Nelson, of the city of New York, widow, respectfully showeth, that she is the sister of Thomas Brown, late of the city of New York, deceased. That the said Thomas Brown died a natural death, and died intestate, as your petitioner verily behoves. That your petitioner has made a diligent search and inquiry for a will of the said deceased, and has not found any, or obtained any information that he left or ever made one. That your petitioner has, to the best of her abihty, estimated and ascertained the value of the personal property of which the said deceased died possessed, and that the same does not exceed in value the sum of about six thousand dollars. That the said intestate left kindred entitled to his estate, whose names and places of resi- dence are as follows : Benjamin Brown, residing in the village of Poughkeepsie, in the county of Dutchess, and Reuben Brown, residing in the city of Buffalo, in the county of Erie, both of full age, hia brothers. That your petitioner is the sister of the said intestate, as above stated, and is of full age. That the said intestate left him surviving no widow, descendant or father. Your petitioner further shows, that the said intestate, at or immediately previous to his death, was an inhabitant of the county of New York. That your petitioner is informed and beUeves that the surrogate of the county of New York has sole and exclusive power to grant letters of administration of the goods, chattels and credits of the said intestate. She prays that such letters may be granted to her ; and to that end, that a citation may issue out of and under the seal of this court, to be directed to the above named kindred of the said intestate, requiring them to show cause, at a day to be therein specified, why adminis- istration of the goods, chattels and credits of the said intestate should not be granted to your petitioner. And your petitioner wiU ever pray, &c. Dated the 5th day of Eebruary, 1855. Maet Nelson. Jurat, same as above. No. 30. P. 224. ORDER EOR ISSUING CITATION ON THE ABOVE PETITION. mie. (See No. 29.) At, &c. {See No. 3.) On reading and filing the petition of Mary Nelson, of the city of New York, widow, the sister of Thomas Brown, late of the city of New York, deceased, intestate, it is ordered that a citation issue to Benjamin Brown and Reuben Brown, the brothers of the said intes- tate, requiring them and each of them personally to be and appear in this court on the twenty-fourth day of March next, at ten o'clock in the forenoon, to show cause why admin- istration of all and singular the goods, chattels and credits of the said intestate should not be granted to the said petitioner. CITATION ON THE ABOVE ORDER. The People of the State of New York, by the grace of God free and independent: To Benjamin Brown and Reuben Brown, the brothers of Thomas Brown, late of the city of New York, deceased, intestate, send greeting : You and each of you are hereby cited and required, personally to be and appear before our surrogate of the county of New York, at his office in the city of New York, on the twenty-fourth day of March next, at ten o'clock in the forenoon of that day, then and there to show cause why administration of the goods, chattels and credits of the said intestate should not be granted to Mary Nelson, of the city of New York, widow, his sister. In testimony whereof^ we have caused the seal of office of said surrogate to be hereunto affixed. Witness, Alexander "W. Bradford, Esquire, surrogate of our said [l. s.] county, at the city of New York, the sixth day of February, in the year of our Lord one thousand eight hundred and fifcy-five, and of our independence the seventy-ninth, A. "W. Bbadfoed. xxvi APPBKDIX. No. 31. P. 224. CONSENT TO HAVE ANOTHER PERSON JOINED IN THE ADMmiSTRATION TiOe. {See No. 29.) I, Eliza Kelly, of the city of New York, the widow of John Kelly, late of the city of New York, gentleman, deceased, intestate, and entitled to the administration of the goods, chattels and credits of the said intestate, do hereby consent that such administration he granted to Jaoob "Waring, of the city of New York, merchant, to be joined with me therein. Dated, &g. No. 32. P. 224 FORM OP RESUNOIATION. Title. {See No 29.) I, Benjamin Brown, of the city of Pouglikeepsie, in the county of Dutchess, a brottjer of Thomas Brown, late of the city of New York, deceased, intestate, do hereby renounce all right and claim to administration of the goods, chattels and cfedits of the said intestate, "Witness, my hand at Poughkeepsie, aforesaid, this eighth day of February, 1855. Benjamin Brown. Signed in the presence of RiOHAKD Ren. This renunciation must be duly proved or acknowledged. No. 33. Pp. 198, 200, 226. FORM OF ADMINISTRATOR'S BOND. Know all men by these presents, that we, Eliza Kelly, of the city of Now York, widow, and John Green, of the same city, carpenter, and George Green, of the same city, merchant, are held and firmly bound unto the people of the state of New York, in the sum of ten thousand dollars, lawful money of the United States of America, to be paid to the said peo- ple ; to which payment, well and truly to be made, we bind ourselves, our and each of our heirs, executors and administrators, jointly and severally, firmly by these presents. Sealed with our seals. Dated, this seventh day of February, in the year one thousand eight hundred and fifty-five. The condition of this obligation is such, that if the above bounden Eliza Kelly shall faith- fully execute the trust reposed in her as administratrix of all and singular the goods, chat- tels. and credits of John Kelly, late of the city of New York, gentleman, deceased, intestate, and also obey all orders of the surrogate of the county of New York, touching the adminis- tration of the estate committed to her, then this obligation to be void, else to remain in full force and virtue. Eliza Kellt. John Green. Geoesb Geeen. Sealed and delivered in the presence of James Black. State of New York, ) City and County of New York, J On this seventh day of February, in the year one thousand eight hundred and fifty-five, personally appeared before me Eliza Kelly,' John Green and George Green, severally known to me to be the persons described in and who executed the foregoing bond, and respectively aokowledged that they executed the same. "William Ripley, Gommisaiimer of Deeds. AFFIDAVIT OF JUSTIFICATION. City and County of New York, ss. — George Green, within named, being dulytsworn, doth seal..] 'seal,] gEAL.] aRANTING ADMINISTEATION, XXVU depose and say, that he is a freeholder, residing in the city of New York, and is worth the sum often thousand dollars over and above all his juat debts, liabilities and responsibilities. Geoese Green. Sworn this seventh day of February, ) A. D. 1855, before me, ) A. W. Beadfoed, Surrogate. A similar affidavit for the other surety. No. 34. P. 227. . FORM OF ADMINISTRATOR'S OATF. Covmty of New York, ss. — I, Eliza Kelly, of the city of New Tork, the widow of John Kelly, late of the said city, gentleman, deceased, intestate, about to be appointed, by the surrogate of the county of New York, administratrix of the goods, chattels and credits of the said John Kelly, deceased, do solemnly swear and declare that I will well, honestly, and faith- fully discharge the duties of such administratrix according to law. Eliza Kellt. Sworn this seventh day of February, ) A. D, 1855, before me, J A. W. Beadfoed, Swrogate. No. 35. P. 227. ORDER FOR ISSUING LETTERS. Title. (See No. 29.) At, &c. (See No. 3.) On reading and filing the petition of Eiiza Kelly, the widow of John Kelly, late of the city of New York, deceased, praying that letters of administration of the goods, chattels and credits of the said deceased be granted to her; and on reading and filing the bond exe- cuted by the said petitioner with two competent sureties, pursuant to the statute-; and this court being satisfied that said petitioner is in all respects competent to act as administratrix of the goods, chattels and credits of the said deceased: it is ordered, that the prayer of the said petition be granted, and that letters of administration issue to the petitioner in pursue anoe thereoC No. 36. P. 227. LETTERS OF ADMINISTRATION. The people of the state of New York, to Eliza Kelly, of the city of New York, the widow of John Kelly, late o( the said city, gentleman, deceased, intestate, send greeting: Whereas John Kelly late departed this life intestate, being at or immediately previous to his death an inhabitant of the county of New York, by means whereof the ordering and granting ad- ministration of all and singular the goods, chattels -and credits, whereof the said intestate died possessed, in the stale of New York, and also the auditing, allowing and final dis- charging the account thereof, doth appertain unto us: And we being desirous that the goods, chattels and credits of the said intestate may be well and faithfully administered, applied and disposed of, do grant unto yoi', the said Eliza Kelly, full power, by these pres- ents, to administer and faithfully dispose of all and singular the said goods, chattels and credits; to ask, demand, recover and receive the debts which unto the said intestate, whilst living, and at the time of his death, did belong, and to pay the debts which the said intestate did owe, as far as such goods, chattels and credits wijl thereunto extend and the law require ; hereby requiring you to make, or cause to be made, a true and perfect inventory of all and singular the goods, chattels and credits of the said intestate, within a reasonable time, and return a duplicate thereof to our surrogate of the county of New York, within three months from the date of these presents : And if further personal property, or assets of any kind, not mentioned in any inventory that shall have been so made, sliall come to your possession or knowledge, to make, or cause to be made, in like manner, a true and perfect inventory thereof, and return the same within two months after discovery thereof; and also to render a just and true account of administration when thereunto required ; and we do by these 43 XXVIU APPENDIX. presents depute, constitute and appoint you, the said Eliza Kelly, administratrix of all and singular the goods, chattels and credits of the said John Kelly, deceased. In testimony whereof, we have caused the seal of office of the surrogate of said county to bo hereunto affixed. Witness, Alexander W, Bradford^ surrogate of said county, [l. s] at the city of New York, the seventh day of February, in the year one thousand eight hundred and fifty-five, and of our independence the seventy-ninth. A. W. Beadfobd, Swrrogate. No. 31. ' P. 229. PETITION FOR ADMINISTRATION "WITH THE WILL ANNEXED. Cowity of New York. — Surrogate's Oowri. , In the Matter of the Administration, WITH THE Will Annexed, of THE Goods, Chattels and Ckedits of James Thompson, deceased. To Alexander W. Bradford, Surrogate of the County of New York : The petition of Cornelia Thompson, of the city of New York, widow, respectfully showeth, that James Thompson, late of the city of New York, merchant, deceased, departed this life in the said city, on the tenth day of April, in the year 1854, leaving his last will and testa- ment, in and by which he appointed Philip Thompson the sole executor thereof That the said last will and testament was duly proved before the surrogate of tlie county of New- York on the fifth day of August, in the said" year 1854, and recorded by him in his of- fice; and probate thereof was on the same day granted, and letters testamentary issued to the said Philip Thompson, as such executor aforesaid. And your petitioner prays leave to refer to the said will and probate and letters testamentary, or to the record thereof, if it shall be necessary for her so to do in this matter. That the said Philip Thompson departed this life on the first day of February instant, leaving certain property and assets of the said deceased still unadministered. That your petitioner has, to the best of her ability, estimated and ascertained the amount of such property, and that the same does not exceed in value the sum of five thousand dollars. ' Your petitioner further shows that the said deceased, at or immediately previous to his death, was an inhabitant of the county of New York. That your petitioner is the sole re- siduary legatee under the said last will and testament. That she is the widow of the said deceased, and is of full age. That she is informed and believes that the surrogate of tlie county of New York has sole and exclusive power to grant letters of administration, with the will annexed, of the goods, chattels and credits of the said deceased left unadministered by the said Philip Thompson. She prays that such letters may be granted to her, in pur- suance of the statute In such ease made and provided. And your petitioner will ever pray, &c. Dated this twentieth day of February, 1855. Jurat. (See No. 29.) Cornelia Thompbon. No. S8. P. 230. LETTERS OF ADMINISTRATION WITH THE WILL ANNEXED. The people of the state of New York, to Cornelia Thompson, of the city of New York, sole residuary legatee under the last will and testament of James Thompson, late of the said ■city, merchant, deceased, Whereas the said James Thompson lately departed this life, having previously duly made .and executed his last will and testament: And whereas said will. (a copy whereof is here- unto annexed) was, on the twenty fifth day of August, in the year one thousand eight hun- dred and fifty-four, duly admitted to probate by Alexander W. Bradford, Esquire, surrogate of the county of New York, and probate and letters testamentary thereof were duly granted .and issued by the said surrogate to Philip Thompson, the sole executor named in the said will: And whereas the said Philip Thompson lately departed this life, leaving property and assets of tho said testator still unadministered: And whereas the said James Thompson, at or immediately previous to his death, was an inhabitant of tho county of New York, by means whereof the proving and registering of said will, and the ordering and granting ad- ministration of all and singular the goods, chattels anderedits whereof the said testator died possessed in the state of New York; and also the auditing, allowing, and final discharging the account thereof, doth appertain unto us; and we being desirous that said will should be GRANTING LETTERS OF COLLECTION. xxix observed and performed, and that the goods, •chattels and credits of said testator should be well and faithfully administered, applied and disposed of, do grant unto you, the said Corne- lia Thompson, full power and authority, by these presents, to administer and faithfully to dispose of all and singular the said goods, chattels and credits, and to ask, demand, recover and receive, the debts which unto the said testator whilst living, and at the time of his death, did belong; and to pay the debts which the said testator did owe, as far as such goods, chattels and credits will thereto extend, and the law require; hereby requiring you to observe and perform the said last will and testament, and to observe and perform all the duties to which you would liave been subject if you had been named the executrix thereof. And we do, by these presents, depute, constitute and appoint you, the said Cornelia Thomp- son, administratrix, with the will annexed, of all and singular the goods, chattels and cred- its, which were of said James Thompson, deceased. In testimony whereof, we have caused the seal of office of our said surrogate to be hereunto affixed. Witness, Alexander W. Bradford, surrogate of said county, [l. s.] at the city of New York, this twentieth day of February, in the year of our Lord one thousand eiglit hundred and fifty-five, and of our independence the seventy!- ninth. A. W. BBADi'OBD, Swrrogate, No. 39. P. 231. PETITION FOR LETTERS OF COLLECTION. County of New ¥drk. — Surrogate's Court. In the Matter op the Goods, Chattels AND CEEDITS OF Henet Gray, deceased. To Alexander W. Bradford, surrogate of the county of New York: The petition of George Day, of the city of New York, respectfully showeth, 'that your .pe- titioner is sole executor named in the instrument in writing, purporting to be the last will and testament of Henry Gray, late of the city of New York, grocer, deceased, propounded for probate and now pending in the court of the surrogate of the county of New York. That the proof of the said will is contested, wliereby adelay is necessarily produced in granting let- ters testamentary or of administration in this matter, and that it is uncertain when such con- test will be terminated. That the property of the said deceased consists in part of groceries and perishable articles, and that it is necessary that immediate steps should be taken for the, preservation or disposal thereof That there are notes and debts belonging to the said deceased, falling due, the collection whereof requires early attention. That your petitioner has, to the best of his ability, estimated and ascertained the value of the personal property of which the said deceased died possessed, and that the same does not exceed in value the sum of about five thousand dollars. Your petitioner further shows that the said deceased, at or immediately previously to his death, was an Inhabitant of the county of New York, and that ho is informed and believes that the surrogate of the county of New York has power in his discretion to issue special letters of administration, authorizing the preservation and collection of the goods of the de- ceased. He prays that such letters may be issued to him, pursuant to the statute in such case mjide and provided. And your petitioner will ever pray, &c. Dated this ^ixth day of February, 1855. ' Georqe Day. Jurat. (See No. 29.) ORDER FOR ISSUING LETTERS OF COLLECTION. ntk. {See above.) At, &c. {See No. 3.) On reading and filing the petition of George Day^ the sole executor named in the instru- ment in writing, purporting to be the last will and testament of Henry Gray, late of the city of New York, deceased, now pending in this court, praying that special letters of adminis- tration authorizing the preservation and collection of the goods of the deceased may be issued to him ; and the proof of the said will being contested, and a delay being necessarily produced in granting letters testamentary or of administration in this matter, and it appear- ing that the situation of the property of the said deceased requires that such letters should be issued, and on reading and filing the bond executed by the said petitioner, with two com- XXX APPENDIX. patent sureties, pursuant to the statute in suob case made and provided, it is ordered that the prayer of the said petition be granted, and that such letters issue to the said petitioner in pursuance thereof. COLLECTOR'S BOND. Know all men by these presents, that we, George Day, of the city of New York, physi- cian, and William Martin and Robert Martin, of the same city, merchants, are held and firmly bound unto the people of the state of New York, in the sum of ten thousand dollars, lawfnl money of the United States of America, to be paid to the said people, to which payment well and truly to be made, we bind ourselves, our and each of our heirs, executors and administrators, jointly and severally, firmly by these presents. Sealed with our seals. Dated the seventh day of February, in the year one thousand eight hundred and fifty-four. Whereas, the surrogate of the county of New York is about to issue special letters of administration to the above bounden George Day, authorizing the preservation and collec- tion of the goods of Henry Gray, late of the city of New York, deceased, and appointing him collector of the said goods : Now the condition of this obligation is such, that if the said George Day shall make a true a"nd perfect inventory of such of the assets of the said deceased as shall come to his possession or knowledge, and return the same within three months to the office of the said surrogate ; and shall faithfully and truly account for all prop- erty, money and things in action, received by him as such collector, whenever required by the said surrogate, or any other court of competent authority, and faithfully deliver up the same to the person or persons who shall be appointed executors or administrators of the said deceased, or to such other person as shall be authorized to receive the same by the said sur- rogate, then this obligation to be void, otherwise to remain in fuU force and virtue. Sealed and delivered in ) Georqe Day, the presence of ) William Mabtiit, George Green. Robert Maetin. Acknowledgment and affidavits of justification. — (See No. 23.) seal. SEAL.' 'seal.' No. 40. P. 231. LETTERS OF COLLECTION. The people of the state of New York, to George Day, sole executor named in the instru- ment in writing, purporting to be the last will and testament of Henry Gray, late of the city «f New York, deceased, propounded for proo^ and now pending before the surrogate of the Gounty of New York. Whereas, (he proof of the said w;ill is contested, and a delay is necessarily produced in gi-anting letters testamentary of a will, orlertters of administration of the goods, chattels and credits of the said Henry Gray, deceased, and it appearing that the situation of the property of the said deceased requires that special letters of administration, authorizing the preserva- tion and collection of the goods of the deceased should be issued : And we bemg desirous that the goods, chattels, personal estate and debts of said deceased may be collected and preserved, do grant unto you, the said George Day, fuU power, by these presents, to collect, recover and receive the said goods, chattels, personal estate, and debts of the said deceased ; and to secure the same at such reasonable expense as the surrogate of the county of New York shall allow ; and to sell such of the said goods as are perishable, under the direction of the said surrogate, after the same shall have been appraised; hereby requirmg youte make, or cause to be made, a true and perfect inventory of such of the assets of said deceased as shall come to your possession or knowledge, and return the same to our said surrogate, within three months fi'om the date of these presents ; and also faithfully and truly account for all property, money and things in action, received by you as collector, whenever re- quired by our said surrogate, or any other court of competent authority ; and faithfully to deliver up the same to the person or persons who- shall be appointed executors or adminis- trators of the said Henry Gray, deceased, or to such other person as shall be authorized to receive the same by said surrogate. And we do by these presents depute, constitute and appoint you, the said George Day, collector of all and singular the goods, chattels and cred- its which were of the said Henry Gray, deceased. In testimony whereof we have caused the seal of oflBee of our said surrogate to be hereunto affixed. Witness, Alexander W. Bradford, surrogate of said county, [seal] at the city of New York, this tenth day of February, in the year one thousand eight hundred and fifty-five, and of our independence the seventy-ninth. A. W. Bradford, SurrogcUe. INVENTORY. XXXI No. 41. P. 244. ORDER FOR APPOINTMENT OP APPRAISERS. Ai, &c. (See No. 3.) In the Matter of the Estate OP Jambs Thompson, deceased. On the application of Philip Thompson, the executor of the last will and testament of James Thompson, late of the city of New York, deceased, to have two disinterested ap- praisers appointed to estimate and appraise the personal property of the said deceased, it is ordered that John A. Livingston and Cornelius Minor, both of the city of New York, be, and they are hereby appointed such appraisers. No. 42. P. 245. NOTICE OF APPRAISEMENT. Notice is hereby given, that the executor of the last will and testament of James Thomp- son, late'of the city of New York, deceased, with the aid of appraisers, for the purpose duly appointed by the surrogate of the county of New York, will, on the eighteenth day of August instant, at nine o'clock in the forenoon of that day, at number Broadway, in the city of New York, in said county, proceed to make an appraisement and inventory of all the goods, chattels and credits of the said deceased. Dated this twelfth day of August, A. D. 1855. • Philip Thompson, Executor. No. 43. Pp. 245, 254. FORM OF COMPLETE INVENTORY. Oaths of Appraisebs. (See. p. 80.) County of New York, ss. — I, J. A. Livingston, of the city of New York, appraiser, duly ap- pointed by the surrogate of the county of New York, do swear and declare that I will truly, honestly and impartially appraise the personal property of James Thompson, late of the county aforesaid, deceased, which shall be for that purpose exhibited to me, to the best of my knowledge and ability. J. A. Litinqston. Sworn this fifteenth day of ) August, 1855, before me, J "William G. Banks, Gommissioner of Deeds. Here follows the same oath of the other appraiser. A TRUE AND PERFECT INVENTORY of all the goods, chattels and credits which were of James Thompson, late of the city of New York, deceased, made by the executor of the last wUl and testament of the said deceased, with the aid and in the presence of J. A. Livingston and Cornelius Minor, both of the city of New York, they having been duly appointed and sworn as appraisers : containing a full, just and true statement of all the personal property of the said deceased, which has come to the knowledge" of the said executor, and particularly of all moneys, bank bills, and other circulating medium, belonging to the said deceased, and of all just claims of the said deceased against said executor, and of all bonds, mortgages, notes and other securities, for the payment of money belonging to the said deceased ; speci- fying the names of the debtor in each security, the date, the sum originally payable, the in- dorsements thereon, wtth their dates, and the sum which, in the judgment of the appraisers, may be collectable on such security. Upon the completion of this inventory, duplicates thereof have been made, and s%ned at the end thereof by the appraisers. Articles Inventoried. The following articles are exempted from appraisement to remain in the possession of Cor" uelia Thompson, the widow of the testator, pursuant to the statute. xxxii APPENDIX. One maliogaiiy table, six mahogany chairs, one mahogany French bedstead, and two other mahogany bedsteads, with their.beSs and necessary bedding. Six ivory handled knives, six silver forks, six China plates, six China teacups and six China saucers, one silver sugar dish, one silver milk pot, one silver teapot and six silver table spoons. The family Bible, five family pictures, all school books, and sixty-eight books, the same not exceeding in value fifly dollars, and which were kept and used as part of the family library before the decease of the testator. Three stoves kept for use by the family. The following necessary cooking uten- sils (describe them.) The necessary wearing apparel and clothing of the family. The clo- thing of the widow and her ornaments. In addition to the above enumerated articles exempt from appraisal, the appraisers, in the exercise of their discretion, pursuant to the statute, set apart the following articles of neces- sary household furniture and other personal property for the use of the widow and minor children of the testator, the same not exceeduig in value one hundred and fifty dollars. (Describe the articles.) OENEHAL INVENTORY. Bond made by Jonathan Little to the testator, dated the first day of October, in the year 1839, conditioned for the payment of the sum of nine thousand dollars, on the first day of October, in the year 1840, with interest at the rate of seven per cent, per annum, payable half yearly : Secured by a mortgage of real estate in the city of New York, made by the said Jonathan Little and his wife, bearing even date with the bond - - ' - - - $9,000 00 The payment of interest is indorsed on this bond up to tiie first day of April, 1855. Interest now due on this bond, - - - $ Promissory note, made by Thomas Shaw to the testator, or order, dated the first day of February, 1843, for three thousand dollars, payable on demand, with interest, - " 3,000 GO Interest now due on this note, - - - ; $, The following accounts are due to the testator : Account against John Green, 20th March, 1840, - - - 125 00 " " Henry Jones, 15th April, 1843, - - - - 280 00 Twenty-five shares of the capital stock of the Greenwich Insurance Company, in the city of New York; certificate number 198; par value, twenty-five dol- lars each share ; present actual value, one hundred and five per cent, - 656 25 Due to the testator, from PhiUp Thompson, the said executor, for money bor- rowed without interest, two thousand dollars, . . - - 2,000 00 The interest of the testator in the stock in trade, effects and credits of the late firm of "Thompson & Jones," hardware merchants, in the city of New York, composed of the said testator and Jacob Jones, and in which the said testa- tor owned the one-half share, and interest. The accounts and affairs of the said partnership not having been adjusted and closed, the appraisers are not able to state the exact value of this interest. From the information they have obtained, the value of the said interest is, in their judgment, not less than ten thousand dollars, . ' 10,000 00 Money — In specie, at the residence of the testator, at the time of his death, - 220 00 Deposited in the Bank of America, - - - Ifili 00 $26,856 25. The following stocks, securities and accounts, the appraisers consider of no value : Thirty-two shares of the capital stock of the " President, Managers and Com- pany for erecting a bridge over the River Delaware, near the town of Mil- ford," of which the par value was $50 per share. Bond made by James Hazen to the testator, dated the 21st June, 1835, condi- tioned for the payment of $600, one year after the date, with interest. Promissory note made by Simon Ward, to the order rf John King, and by him indorsed to the testator, dated 2d October, ISiOi for $400, payable six months after date, duly protested. Accoun* against George Brown, - - - - $78 '• " Thomas Jackson, ... - 95 MmseJioJd Furmiwe, — At No. Broadway, New Torh First Floor — Front Pm-hr. About sixty yards of Brussels carpet, - - - - - 50 00 nrVENTOET. xxxiii Set of window curtains and ornaments, - - - $150 00 Pair of window shades, $6; mahogany sofa, $25, - - - 31 00 Two mahogany couches, $40; rocking chair, $7, - - 41 00 Six mahogany chairs, $18; two mahogany tabouretts, $8, - 26 00 Iiarge mirror, $80 ; one pair of candelabras, $40, - - - 120 00 Mahogany stand, $3 ; astrallamp, $9, ... . 12 00 \Back Parlor, similar list, and so with the other rooms of the house. V--, ' Dated this ' day of 1855. JOHK A. LiVINaSTON, I Cornelius Minor, y No. 44. P. 264. OATH TO INVENTORY. County of New York, [ State of New Tori, ) Phihp Thompson, of the city of New York, being duly sworn, doth depose and say, that he is the executor of the last wiU and testament of James Thompson, late of the city of New York, deceased, and that the foregoing is an inventory of the personal property of the said deceased. That the said inventory is, in all respects, just and true ; that it contains a true statement of all the personal property of the said deceased which has come to the knowledge of this deponent ; and particularly of all money, bank bills and other circulating medium, be- longing to the said deceased, and of aU just claims of the saiddeceased against this deponent, according to the best of the knowledge of this deponent. Philip Thompson. Sworn this second day of September, ) 1855, before me, ) William Eiplet, Commissioner of Deeds. No. 45. P. 256. PETITION FOR FURTHER TIME TO FILE INVENTORY. County of New York, ) Surrogate's Gowrt, ) To Alexander W. Bradford, Surrogate of the county of New York: The petition of Eliza Kelly, of the city of New York, widow, respectfully showeth : That on the seventh day of February last past, your petitioner was duly appointed the ad- ministratrix of all and singular the goods, chattels and credits of John Kelly, late of the city of New York, gentleman, deceased, intestate, her late husband. That the personal property of the said Joho Kelly consists for the most part of the undi- vided distributive shM-e to which the said John Kelly was entitled in and of the.personal es- tate of Patrick Kelly, lately deceased, intestate, his brother. That William Kelly was ap- pointed by the said surrogate the administrator of all and singular the goods, chattels and credits of the said Patrick Kelly, deceased, on or about the^rst day of December, in the year 1854. That the period tor the settlement of the estate of the said Patrick Kelly, deceased, has not yet arrived, and that the amount of the share thereof to which the said John Kelly or his estate may be entitled, cannot yet be ascertained. That your petitioner wUl, therefore, be unable to exhibit a perfect inventory of the personal property of the said John Kelly, de- ceased, within the three months limited by law. Your petitioner prays that she may be al- lowed four months fiirther time to return such inventory. And your petitioner wiU ever pray, &c. Dated this first day of May, A. D. 1855. Eliza Kelly. Covmtyof Nenv York, ss. — On this first day of May, in the year 1855, personally appeared before me, Eliza Kelly, the petitioner above named, and made oath that she had read the foregoing petition, and knew the contents thereof and that the matters of fact therein stated were true. A. W. Beadpord, Surrogate. xxxiv APPENDIX. ORDER FOR FURTHER TIME TO RETURN INVENTORY. At, &c. (See Na. 3.) In the Matter of the Inventory of THE Personal Peopebtt OF John Kellt, deceased. On reading and filing the petition of Eliza Kelly, the administratrix of all and singular the goods, chattels and credits of John Kelly, late of the city of New York, deceased, intes- tate, praying that she may be allowed four months further time to rettim an inventory of the personal property of the said intestate, and reasonable cause therefor being shown, it is or- dered, that the said Ehza Kelly, administratrix as aforesaid, be allowed four months further time to return such inventory. No. 46. P. 251. PETITION TO COMPEL THE RETURN OP AN INVENTORY. Comity of Nai] York, ) Swrogate's Court. J To A. 'W. B., Surrogate of the couuly of New York : ' The petition of James Tucker, of the city of New York, respect&lly showeth that your petitioner is a creditor of Henry Jones, late of the city of New York, deceased, intestate, and that there is justly due to him from the estate of the said deceased, on »■ promissory note, made by the said Henry Jones in his lifetime, to your petitioner, the sum of two hundred and fifty dollars, and interest from the eighth day of Optober, in the year 1845. Your petitioner further shows, that letters of administration of aU and singular the goods, chattels and credits of the said Henry Jones, deceased, wer6, on the twenty-fourth day of March last past, granted, by the surrogate of the county of New York, to George Jones of the city of New York, grocer, the brother of the said intestate. That more than three months have elapsed since the granting of the said letters, and that the said Greorge Jonea has neglected to return an inventory of the personal property of the said intestate, and has not obtained an aUowanoe of further time to do so. In consideration of the premises, your petitioner prays that the surrogate will issue a summons, requiring the said administrator, at a short day therein to be appointed, to appear before him, and return an inventory of the personal property of the said intestate according to law, or show cause why an attachment should not be issued against him; and that your petitioner may have such further or other relief in the premises as to the surrogate shall seem meet. And your petitioner will ever pray, &c. Dated this first day of July, A. D. 1855. James Tdckee. . The usual jurat. No. 4:1. P. 251. ORDER FOR ISSUING SUMMONS. • At, (Sec. {See. No. 3.) In THE Matter of the Goods, Chattels AND Credits of Henry Jones, deceased. On reading and filing the petition of James Tucker, a creditor of Henry Jones, late of the city of New York, deceased, intestate, it is ordered, pursuant to the prayer of the said peti- tion, that a summons issue to George Jones, the administrator of all and singular the goods, chattels and credits of the said intestate, requiring him personally to appear in this court on the ninth day of July iiistant, at ten o'clock in the forenoon of that day, and return an in- ventory according to law of the personal property of the said intestate, or show cause why an attachment should not be issued against him. INVENTORY, XXXT SUMMONS ON THE ABOVE ORDER. Thefpeople of the state of New York, to George Jones, the administrator of all and sin- gular the goods, chattels and credits of Henry Jones, late of the city of New York, deceased, Intestate, send greeting: Tou are hereby summoned and required personally to be appear before our surrogate of the county of New York, at his ofBoe in the city of New York, on the ninth day of July instant, at ten o'clock in the forenoon of that day, and return an inventory, according to law, of the personal property of the said intestate, or show cause why an attachment should not be issued against you. In testimony whereof, &o. No. 48. P. 260. ORDER FOR ATTACHMENT FOR NOT RETURNING INVENTORY. Title. (See No. 47.) At, &c. {See No. 3.) A summons having been heretofore duly issued to George Jones, the administrator of all and singular the goods, chattels and credits of Henry Jones, late of the city of New York, deceased, intestate, requiring him personally to appear in this court on this day, at ten o'clock in the forenoon, and return an inventory, according to law, of the personal property of the said intestate, or show cause why an attachment should not be issued against him: And now, on reading and filing the affidavit of James Den, proving the due and personal service of the said summons on the said George Jones, on the day of instant; and the said George Jones haying failed to appear and return such inventory on oath, in compliance with the exigency of the said summons, and not having obtained further time to return the same, it is ordered that an attachment issue out of and under the seal of this court, against the said George Jones, administrator as aforesaid, to be directed to the sheriff of the city and county of New York, commanding him to attach the said administra- trator, and commit him to the common jail of this county, there to remain until he shall re- turn such inventory aforesaid, on oath, according to law. ATTACHMENT ON THE ABOVE ORDER. The people of the state of New York, to the sheriff of the city and county of New York, greeting: We command you that you attach George Jones, the administrator of all and sin- gular the goods, chattels and credits of Henry Jones, late of the city of New York, deceased, mtestate, if he shall be found in your bailiwick, and commit him to the common jail of the city and county of New York, there to remain until he shall return an inventory, on oath, according to law, of the personal property of the said intestate, in compliance with the exi- gency of a summons heretofore duly issued by our surrogate of the county of New York, directed to him, requiring him to appear before him on a certain day, now past, and retura such inventory, or show cause why an attachment should not be issued against him, and duly and personally served on the said George Jones, before the return day thereof, as ap- pears by satisfactory proof of such service, duly taken and had before our said surrogate, and for disobedience to which said summons this attachment is issued, pursuant to the stat- ute in such cases made and provided ; letters of administration of all and singular the goods, chattels and credits of the said intestate having been heretofore, in due form of law, granted and issued by the said surrogate to the said George Jones: And you are to make and return to our said surrogate, in the Surrogate's Court of the county of New York, on Monday, the day of instant, wheresoever the said court shall then be, a certificate, under your hand, of the manner in which you shall have executed this writ; and have you then and there this writ. In testimony whereof, &c. The attachment must le indorsed as foUows : Surrogate's Court — County of New York. In the Matter of the Goods, Chattels AND Credits OF Thomas Bbown, deceased. Attachment against George Jones, administrator, Ac, of Thomas Brown, deceased, Intes tate, for not returning an inventory of the personal property of tlie said deceased. A. W. B., Surrogate. XXXvi APPENDIX. No. 49. P. 261. ORDER FOR THE ISSUING OP A REVOCATION OP LETTERS. Titie. (See No. il.) At, && (See No. 3.) A summons having heretofore been duly issued out of this court, to George Jones, the administrator of all and singular the goods, chattels and credits of Henry Jones, late of the city of New Tork, deceased, intestate, requiring him to appear in this court, on the day of last past, and return an inventory, according to law, of the personal property of the intestate, or show cause why an attachment should not be issued against him; and satisfactory proof of the due and personal service of the said summons on the said George Jones having been produced and filed; and the said George Jones having failed to appear and return such inventory, on oath, in compliance with the exigency of the said summons; and not having obtained further time to return the same ; and an attachment having thereupon duly issued out of this court, directed to the sheriff of the city and county of New Tork. commanding him to attach the 'said George Jones, and commit him to the common jail of the said county, there to remain until he should return such inventory afore- said, on oath, according to law, in compliance with the exigency of the said summons; and the said sheriff having duly returned the said attachment, with his return thereon indorsed, that he had attached the said George Jones, and committed him to the said jail, as thereby commanded, on the day of . last past ; and the said George Jones, alter being so committed to prison, having neglected for thirty days to make and return such in- ventory aforesaid, and not having yet returned the same, it is ordered and decreed, and the surrogate of the county of New Tork, by virtue of the power in him vested, and in pursu- ance of the statute in such case made and provided, doth order and decree, that the letters of administration of all and singular the goods, chattels.and credits of the said Kenry Jones, deceased, intestate, heretofore granted and issued to the said George Jones, bearing date the day of last past, be revoked, and that a revocation of the said let- ters issue under his seal of of&ce. REVOCATION. (See p. 261.) The people of the state of New Tork, to all to whom these presents shall come or may concern, send greeting : — Whereas, letters of administration of all and singular the goods, chattels and credits of Henry Jones, late of the city of New Tork, deceased, intestate, were on the day of in the year one thousand' eight hundred and fifty-four, duly granted and issued by our surrogate of the county of New Tork, to George Jones, of the city of New Tork, grocer, the brother of the said intestate. And whereas a summons was heretofore duly issued by our said surrogate, directed to the said George Jones, administrator of all and singular the goods, chattels and credits of the said intestate, requiring him to appear before him on the day of last past, at ten o'clock in the forenoon, and return an inventory, according to law, of the personal property of the said intestate, or show cause why an attachment sliould not be issued against him ; which said summons was duly and personally served upon the said George Jones, before the return day thereof, as appears by satisfactory proof of such service, duly taken and had before our said surrogate. And whereas the said George Jones failed to appear and return such inventory, in compliance with the exigency of the said summons, and did not obtain further time to return the same; whereupon an attachment was duly is- sued by our said surrogate, under his seal of office, directed to the sheriff of the city and county of New Tork, commanding him to attach the said George Jones, and commit him to the common jail of the said county, there to remain until he should return such inventory aforesaid, on oath, according to law, in compliance with the exigency of the said summons. And whereas the said sheriff did make return of the said attachment, that he had attached ,;j,5 ■ the said George Jones, and committed him to the said jail, as thereby commanded, on the day of last past. And whereas the said George Jones, after being committed to prison, did neglect for tliirty days to make and return such inventory afore- said, and has not yet returned the same. Now, therefore, know ye, that in pursuance of the statute in such ease made and provided, the said letters of administration of all and sin- gular the goods, chattels and credits of the said Henry Jones, deceased, intestate, so as aforesaid granted and issued, by the surrogate of the county of New Tork, to the said George Jones, bearing dafe the day of in the year one thousand eight hundreii and fifty-five, are hereby revoked, and that the said George Jones is hereby de- ENFORCING PAYMENT OF JUDaMBNT. XXXVU prived of all power, authority and control over the goods, chattels and credits of the said Henry Jones, deceased. In testimony whereof, we have caused the seal of ofBce of our said surrogate to be here- r 1 unto afBxed. Witness, A. W. B., Esquire, surrogate of our said comity, at the '• ■J city of Now York, this day of in the year of our Lord one thousand eight hundred and fifty- and of our independence the A. W. B.(m) No. 50. P. 211. SUREOGATE'S CERTIFICATE OP APPOINTMENT OF AN ADMINISTRATOR OR EXECUTOR. The people of the state of New York, to all to whom these presents shall come or may concern, send greeting : Know ye, that at the county of New York, on the day of in the year one thoussind eight hundred and fifty- letters [*] of administration of alland singular the goods, cliattels and credits of Jolin Kelly, late of the city of New York, gentleman, de- ceased, intestate, were duly granted by the' surrogate of the county of New York to Kliza Kelly, the widow of the said intestate, and that the same are still valid and in full force. In testimony whereof, we have caused, &c. Or proceeding from the [*] testamentary of the last will and testament of James Thompson' late of the city of New York, merchant, deceased, were duly granted and issued by the sur- rogate of the county of New York, to Philip Tliorapson, sole executor in the said will named, and that the same are still valid, and in full force. In testimony whereof, we have caused, &e. No. 51. P. 337. APPLICATION BY A CREDITOR WHO HAS OBTAINED A JUDGMENT AGAINST AN EXECUTOR OR ADMINISTRATOR, AFTER A TRIAL AT LAW UPON THE MERITS, FOR AN ORDER THAT EXECUTION ISSUE. County of New York, ) Surrogate's Court, j To A. W. B., Surrogate of the County of New York: The petition of Henry Thorn, of the city of New York, respectfully showpth : That on the day of in the year one thousand eight hundred and fifty- in the term of in the said year, your petitioner,' in the Superior Court of the city of New York, ob- tained a judgment, after a trial at law upon the merits, against Philip Thompson, the execu- tor of the last will and testament of James Thompson, late of. the city of New York, de- ceased, for five hundred and twenty dollars and thirty-seven cents damages and costs, on a promissory note made by the said James Tliompson, inhis lifetime, to your petitioner, as by the record and proceedings, now on file in the office of the clerk ot the said court, in tlie city of New York, reference being thereunto had. and to which, for greater certainty, your pe- titioner prays leaVe to refer, doth and may more fully aud'at large appear. Your petitioner further shows, that the said judgment still remains in full force, and has not been in any way paid or satisfied. In consideration of the premises, and to the end' that an order may be duly made, that an execution be issued upon the said judgment for the amount thereof, or for the amount of the assets of the estate of the said James Thompson, deceased, in the hands of the said executor, properly applicable to the payment, in whole or in part, of the said judgment; your peti- tioner applies to the surrogate, pursuant to the statute in such case made and provided, for an order against the said Philip Thompson, executor as aforesaid, to show cause why an ex- ecution on the said judgment should not be issued; and he further prays that a citation may issue out of, and under the seal of this court, to be directed to the said executor, requiring (u) These forms for the xevocatioti of the letters granted to an executor or administrator, may bo adapted ,to the kindred cases of revocation, where an executor or administrator neglects or refuses to pay a legacy, or to render an account, puisuant to an order of the surrogate. (See pp. 404, 419, 4S5.) xxxTiii APPENDIX. him, at a certain time and place therein to be named, to appear and account before the send surrogate ; and that your petitioner may have such fiirther or other relief in the preraises aa to the surrogate shall seem meet. And your petitioner will ever pray, &e. Dated this day of 1855. The usual jurat. Henby Thoen, OEDBR TO SHOW CAUSE ON THE ABOVE PETITION. Ai, &c. (See Na. 3.) . In the Matter of the Application or Henky Thoen, roR an Order that Execution issue upon a Judsment ob- tained BY HIM ASAINST PHILIP THOMP- SON, THE EXBOUTOE OP THE LaST WILL AND Testament OF Jambs Thompson deceased. On reading and filing the petition of Henry Thorn, of the city of New York, setting forth that on the day of in the year one thousand eight .hundred and fifty- he obtained a judgment in the Superior Court of the city of New York, after a trial at law upon the merits, against Philip Thompson, the executor of the last will and testament of James Thompson, late of the city of New York, deceased, for five hundred and twenty dollars and thirty-seven cents damages and costs: It is ordered, pursuant to the prayer of the said pe- tition, that the said Philip Thompson, executor as aforesaid, personally be and appear before the surrogate of the county of New York, at his office in the city of New York, on the day of next, at ten o'clock in the forenoon of that day, and show cause why an exe- cution on the said judgment should not be issued. A. W. B., Swrogate. • ORDER ON THE SAME PETITION THAT A CITATION ISSUE. nSe. (See last order.) At, &c. (See No. 3.) On reading and, filing the petition of Henry Thorn, of the city of New York, setting forth that he has recovered a judgment, after a trial at law upon the merits, against Phihp Thomp- son, the executor of the last will and testament of James Thompson, late of the city of New York, deceased: It is ordered, pursuant to the prayer of the said petition, that a citation is- sue to the said Philip Thompson, executor as aforesaid, requiring him to appear in this court on the day of next, (the return, day of the above order,) at ten o'clock in the fore- noon of that day, and account as such executor. CITATION ON THE ABOVE ORDER. The people of the state of New York, to Philip Thompson, the executor of the last will and testament of James Thompson, late of the city of New York, deceased, send greeting: You are hereby cited and required personally to be and appear before our surrogate of the county of New York, at his office in the city of New York, on the day of next, at ten o'clock in the forenoon of that day, then and there to account as such executor. In testimony whereof, we have caused, &c. [l. a] X.W. Beadfoed. No. 52. p. 339. OEDBR THAT AN EXECUTION ISSUE UPON A JUDGMENT OBTAINED AGAINST AN EXECUTOR AFTER A TRIAL AT LAW UPON THE MERITS. Title. (See order to show camse.) At, &c. (See No. 3.) It appearing that Henry Thorn, of the city of New York, on the day of in the year one thousand eight hundred and fifty- obtained a judgment in the Superior Court of the city of New York against Philip Thompson, the executor of the last will and NOTICE TO CREDITORS. XXXIX testament of James Thompson, late of the city of New York, deceased, after a trial at law upoH the merits, for iiTe hundred and twenty dollars and thirty-seven cents damages and costs ; and, on the application of the said Henry Thorn, an order having been heretofore duly made against the said executor, and served upon him, to show cause wliy an execution on the said judgment should not be issued; and a citation having also been issued and served upon the said executor, requiring him to appear in this court on the day of last past, and account as such executor; and the said parties having duly appeared, and the said Philip Thompson having produced and filed his account as such ex- ecutor aforesaid ; and the said matter having been heard on, several days, and duly adjourned from day to day until this day; and it appearing, from the said account, that there are in the hands of the said Philip Thompson, as such executor, assets of the estate of the said James Thompson, deceased, to the amount of three thousand two hundred and fifty dollars; and that the debts and outstanding liabilities of the said deceased do not exceed the sum of two thousand three hundred dollars ; and that there are assets in the hands of the said ex- ecutor, properly applicable to the payment in full of the said judgment; and, no cause to the contrary being shown, it is ordered, and the surrogate, pursuant to the statute in such case made and provided, doth order, that execution be issued in due form of law against the said Philip Thompson, executor as aforesaid, for the whole amount of the said judgment and interest. And it is further ordered, that the fees and expenses of this proceeding be paid out of the estate of the said deceased. No. 53. P, 351. ORDER TO ADVERTISE FOR CLAIMS. Tifk. (See No. 41.) At, &c. {See No. 8.) On the application of Philip Thompson, setting forth, among other things, that six months and upwards had elapsed since he was appointed the executor of the said deceased; and that he was desirous of giving such notice to the creditors of the said deceased, to present their claims as is authorized by law; and that he ha'i selected the newspaper, printed in the county of New York, called the "New York Daily Tribune," for the purpose of publishing such notice; and praying that the surrogate would make an order directing such notice published in such other newspapers as he might deem necessary to give notice to said cfed-, iters : It is ordered, that the said executor insert a notice, once in each week for six months, in the said "New York Daily Tribune," and also in the " Evening Post," requiring all per- sons having claims against said deceased to present the same, with the vouchers thereof; to the said executor, at his place of residence or place of transacting business, to be specified in such notice, on or before a day therein mentioned, which shall be at least six months from the day of the first publication of said notice. A. "W. B. NOTICE TO CREDITORS. Notice is hereby given, according to law, to all persons having claims against James Thompson, late of the city of New York, merchant, deceased, that they are required to ex- hibit the same, with the vouchers thereof, to the subscriber, the executor of the last will and testament of the said deceased, at his store and place of transacting business, number 49 Front street, in the city of New York, on or before the day of next, (six months from the first publication of the notice.) Dated this day of A. D. 1855. Philip Thompson, Executor. No. 54. P, 351. AFFIDAVIT OP CREDITOR TO HIS CLAIM. City and County of New York, ssi — George Bruce, of the city of New York, being duly sworn, doth depose and say that the foregoing claim against the estate of William Walkh deceased, is justly due and owing to this deponent; that no payments have been made thereon, and that there are no off-sets against the same, to the knowledge of this deponent. Georub Bbucb. Sworn this day of / A. D.»S55, before me, ) John Knox, Commissioner of Deeds. Xl APPENDIX. No. 55. P. 354. AGREEMENT TO REFER CLAIM. Whereas George Bruce has lately presented a claim to Philip Thompson, the executor of the last will and teatnment of James' Thompson, iMe of the city of New York, deceased against the said James Thompson, upon a promissory note made by the said James Thomp- son in liis lifetime, to the claimant, or order, for six hundred dollHrs, datpd tlie fourteenth day of October, 1853, .ind payable in thirty days alter date, claiming of the said executor the whole amount of the said note, with interest from the time the same became due; and whereas the said executor doubts the justice of the said claim, alleging that the said note is not a valid claim against the said deceased or liis intestate: It is thereupon agreed, in con- formity with the statute in such case made and provided, by and between the said George Bruce and the said Philp Thompso'n, executor as aforesaid, tl)at tlie said matter in contro- versy be- referred, pursuant to the statute albresaid, t(^ James Blacl<, of the city of New York, counsellor at law, and William Andrews and Stephen Long, of tlie same city, merchants, three diairtterested persons, as referees, to hear and determine upon the same with all con- venient speed. Dated this day of A, D. 1855. Geob&b Beuob, ' Philip THOMPSoif. , APPROVAL OF THE SURROGATE. The surrogate of the county of New York hereby approves of the three persons named as referees in the foregoing agreement. Dated this day of A. D. 1855. A. W. B., Surr. No. 56. P. 359. APPLICATION FOR -PROOF OP A DEBT DUE FROM THE DECEASED TO AN ADMINISTRATRIX. County of New York, ) . Surrogate's Court. ) To Alexander W. Bbadfoed, Surrogate of the County of New York: The petition of Mary Nelson, of the city of New York, respectfully showeth, that she is the administratrix of all and singular the goods, chattels and credits of Thomas Brown, late of the city of New York, deceased, intestate; that the said intestate died indebted to your petitioner in the sum of three hundred dollars and interest, due upon a promissory note made by him in his lifetim.e to your petitioner, dated the second day of May, lb50, lor $300, payable on demand, with interest; that the said sum is justly due and owing toyour peti- tioner ; that no payments have been made thereon, and that there are no off-sets against the same, to the knowledge of your petitioner. Your petitioner further shows, that there are no other creditors of the said intestate, ac- cording to the beat of her knowledge ; that she has advertised, pursuant to the statute, for claims against him, and that none have been exhibited ; and that Benjamin Brown, residing in tjie city of Poughkeepsie, in the county of Dutchess, and Reuben Brown, resiiiiug in the city of Buffalo, in the county of Erie, his brothers, and your petitioner, his sister, are the only persona entitled to share in the distribution of the personal property of the said in- testate.({)) In consideration of the premises, and to the end that your petitioner may retain a part of the property of the said intestate, in satislaction of lier said debt or claim, your petitioner prays that a citation may issue out of and under the seal of this court, pursuant to the stat- ute in such case made and provided, to be directed to the proper persons, requiring them to appear before the surrogate, and attend the proof of the said debt or ulajm ot your petitioner against the said intestate. And your petitioner will ever pray, &c. Dated this ' day of 1855. Maet Nelson. The usual jurat. iv) If there be a co-executor or eo-adminlstrator, tliat fact, and his name and residence, should ho set forth In the petition, and he should he made a pjirty to the proceeding; and, if such co-tl8ecutor or adminis- trator assent to the claim, it should be so stated In the petition. OEDER FOR CITATION. xli ORDER EOR CITATION ON THE ABOVE PETITION. At, Slc. (See No. 3.) In the Matter of the Proof of the Debt OR Claim op Mart Nelson, Administra- trix, &o., OF Thomas Brown, deceased, Intestate,, against the said Intestate. On reading and filing the petition of Mary Nelson, the administratrix of all and siiigular the goods, chattels and credits of Tiiomas Brown, late of the city of New York, deceased, intestate, setting forth that she has a claim against the said intestate, it is ordered, pursuant to the prayer of the said petition, that a citation issue to the proper persons, requiring them to appear in this court on the day of next, at ten o'clock in the fore- noon of that day, and attend the proof of the said debt or claim of the said administratrix. And it is further ordered, that the said citation be served on the persons to whom the same shall be directed, at least fifteen days befOTe the return day thereof. ■ CITATION ON THE ABOTB ORDER. The people of the state of New York, to Benjamin Brown, residing In the city of Pough- keepsie, in the county of Dutchess, and Reuben Brown, residing in the city of Buffalo, in the county of Erie, send greeting: "^u and each of you are hereby cited and required personally to be and appear before our svirrogate of the county of New York, at his ofBce in the city of New York, on the day of . next, at ten o'clock in the forenoon of that day, then and there to attend the proof of the debt or claim of Mary Nelson, the administratrix of all and sin- gular the goods, chattels and credits of Thomas Brown, late of the city of New York, de- ceased, intestate, against the said intestate. In testimony whereof, we have caused, &c. [l, s.] ' • A. "W. B. No. 67. P. 344. PETITION OF A CREDITOR FOR A DECREE FOR PAYMENT OF HIS DEBT. County of Nsw York, ) .Surrogate's Court. ) To Alexander W. Bradford. Surrogate of the County of New York: The petition of John Kudd, of the city of New York, merchant, respectfully showeth that your petitioner is a creditor of James Tlioropson, late of the city of New York, deceased; that he has a valid claim against the said deceased, on a promissory note made by the said James Thompson in his lifetime, to the order of your petitioner, dated the day of 185 for six hundred dollars, payable six months after date; that the said claim is justly due and owing to your petitioner ; that no payments have been made thereon, and that tliere are no off-sets against the same, to the knowledge of your petitioner; that letters testamentary of the last will and testament of the said James Thompson, deceased, were duly granted, by the surrogate of the county of New York, to Philip Thompson, sole executor in the said will named, on the day 185 ; that your petitioner duly exhibited the said claim to the said executor, under the notice published by him for the exhibition of claims, and that he assented to the justness and correctness of the same; that your petitioner has demanded payment of the said claim from the said executor, since the expiration of one year from the time of the granting of the letters testamentary aforesaid to him, and that he has neglected to pay the same. Your petitioner further shows, that he is informed and believes that ample assets for the payment of all claims against the said James Thompson, deceased, have come into the hands of the said Philip Thompson, as such executor aforesaid. In consideration of the premises, your petitioner prayS that a decree may be made, pur- suant to the statute in such case made and provided, against the said executor, forthe pay- ment of the said claim of your petitioner. And your petitioner will ever pray, &c. Dated this . day of 1855.- The usual jurat, John Rudd. xlii APPENDIX. No. 58. P. 345. ORDER FOB CITATION ON THE ABOYB PETITION. At, &c. {See No. 3.) In the Matter of the Claim op John RUDD, A CREDITOK OF Jambs Thompson, deceased. On reading and filing the petition of John Rudd, of the city of New York, merohaat, a creditor of James Thompson, late of the city of New York, deceased, setting forth that he has a just claim against the said deceased, it is ordered that a citation issue to Philip Thomp- son, the executor of the last will and testament of the said James Thompson, deceased, re- quiring him to appear in this court, on the day of instant, at ten o'clock in the forenoon of that day, and show cause why the surrogate should not decree payment of the said debt or claim against him, And it is further ordered, that the said citation be served on the said Philip Thompson, at least four days before the return day thereof CITATION ON THE ABOVE ORDER. • The people of the state of New York, to Philip Thompson, the executor of the last will and testament of James Thompson, late of the city of New York, deceased, send greeting: You are hereby cited and required personally to be and appear before our surrogate of the county of New York, at his oflBce in the city of New York, on the day of in- stant, at ten o'clock in the forenoon of that day, then and there to show cause why the said surrogate should not decree payment against you of the debt or claiiu of John Rudd, of the city of New York, merchant,- against the said James Thompson, deceased, upon an alleged promissory note made by the said James Thompson, in his lifetime, to the order of the said John Rudd, for six hundred dollars. In testimony whereof we have caused, &c. A. W. B. No. 59. P. 346. DECREE FOR PAYMENT OF A CLAIM. Titte. (SeeNo.SS.) At, &c. {SeeNd.i.) John Rudd, of the city of New York, merchant, having heretofore presented his petition to the surrogate of the county of New York, setting forth that he had a valid claim against James Thompson, late of the city of New York, deceased, upon a promissory note made by the said James Thompson, in his lifetime, to the order of the said petitioner, dated the day of for six hundred dollars, payable six months after date, and praying a decree against Philip Thompson, the executor of the last will and testament of the said James Thompson, deceased, for payment of the said claim: And the said executor having been duly cited to appear on the day of last past, and show cause why such payment should not be decreed : And the said Philip Thompson having appeared, and having assented to the said claim of the said John Rudd, and having produced and filed an account as such executor ; and the said matter having been heard on several days, and duly adjourned until this day; a,nd it appea,ring, from the said account and from the proofs herein taken, that there are in the hands of the said Philip Thompson, as such executor aforesaid, assets of the estate of the said James Thompson, decease^, to the amount of two thousand seven hundred and twenty-five dollars, and that the debts and outstanding liabUities of the said deceased do not exceed the sum of one thousand seven hundred dollars: It is ordered and decreed, and' the surrogate of the county of New York, by virtue of the power in him vested, doth order and decree, pursuant to the statute in such case made and provided, that the said Philip Thomp- son, executor as aforesaid, pay to the said John Rudd the full amount of his said claim and interest, amounting in the whole to the sum of dollars and cents. And it is fiarther ordered, that the said Philip Thompson personally pay the fees of this proceeding, and the costs of the said John Rudd therein to be taxed. GRANTING LETTERS TESTAMENTARY, xliii No. 60, P. 408. BOND TO REFUND LEGACY "WHERE THE SAME IS DIRECTED TO BE PAID BEFORE THE ESPIRATION OF THE YEAR. Know all men by these presents, that we, Henry Tompkins, of the city of New York, gro- cer, and George Storms, of the same place, saddler, and John Baker, of the same place, cooper, are held and firmly bound unto Philip Thompson, the executor of the last will and testament of James Thompson, late of the city of New York, deceased, in the sum of one thousand dollars, lawful money of the United States of America, to be paid to the said Philip Thompson as Such executor aforesaid, or to his certain attorney, successor or assigns ; to which payment well and truly to be made, we bind ourselves, our and each of our Ijeirs, ex- ecutors and administrators, jointly and severally, firmly by these presents. Sealed with our Dated the day of one thousand eight hundred and flfty- Whereas, the said James Thompson, in and by his said last will and testament, did give and bequeath to the said Henry Tompkins, th« sum of five hundred dollars, to be paid to him in two months after the decease of the said James Thompson; And whereas the said Henry Tompkins has demanded payment of the said legacy from the said executor before the expi- ration of one year from th« time of the granting of his letters testamentary of the said last will and testament, and the said executor is about to pay the same, pursuant to the statute in such case made and provided, upon the execution and delivery of this obligation. Now, the condition of this obligation is Such, that if any debts against the said deceased shall duly appear, and which there shall be no other assets to pay, and there shall be no other assets to pay other legacies, or not sufScient, and the said Henry Tompkins shall refund the legacy so paid, or such ratable proportion thereof, with the other legatees, as may be neoea- saiy for the payment of the said debts, and the proportional parts of such other legacies, and the costs and charges incurred by reason of the said payment to him ; and, if the probate of the said will shall be revoked, or the will declared void, and the said Henry Tompkins shaU refund the whole of the said legacy, with interest, to the executor or administrator entitled thereto, then this obligation to be void,; otherwise to remain in full force and vhtue. (Signed,) . Sealed and delivered, &c. Ifo. 61. P. 409. APPLICATION BEFORE THE EXPIRATION OF THE YEAR BY A PERSON EN- TITLED TO A LEGACY, TO RECEIVE A PORTION OF SUCH LEGACY AS NECESSARY FOR HIS SUPPORT. County of New York, ) Swrrogaie's Cowri. ) To Alexander W. Bradfomj, Surrogate of the County of New York: The petition of Samuel Reynolds, of the city of New York, respectfully showeth: That your petitioner is a legatee under the last wiU and testament of James Thompson, late of the city of New York, deceased: that the said last will and testament was duly proved, before the surrogate of the coMity of New York, and recorded in his office, on the day of in the year 185 , and that letters testamentary thereof, were on tlie same day ■duly granted and issued by the said surrogate to Philip Thompson, sole executor in the said will named. That in and by the said will, the said James Thompson did give and bequeath to your petitioner the sum of one thousand dollars, as by the said will, or the aforesaid record thereof, reference being thereto had, will more fully appear, and your petitioner prays leave ' to make such reference if it shall be necessary for him so to do. Your petitioner further shows, that ample assets of the estate of the said testator for the payment of all his debts, and for the discharge of all the specific and general legacies given by his said will, have come into the hands of the said Philip Thompson, as such executor aforesaid. Your petitioner further shows, that he is in indigent circumstances, and that an advance of a portion of the said legacy is necessary for his support. He therefore prays, that he may 'be allowed, in pursuance of the statute in such case made and provided, to receive a portion of the said legacy to the amount of three hundred dollars, as necessary for his support, upon a satisfactory bond being executed for the return of such portion, with interest, whenever required. And your petitioner will ever pray, &,c. fSAMUEi, Reynolds. ■44 xliv APPENDIX. On the copy of the petition, served on the executor the fdlkming notice is to he indorsed : Sib, — Take notice, that the petition, of which the within is a copy, will be presented to the surrogate of the county of New York, at his office in the city of New York, on Monday the day of instant, at ten o'clock in the forenoon of that day, and that the said surrogate wiU then and there be moved to grant the prayer thereof. And further, that Wil- liam Seaman, residing in the Tenth ward of the city of New York, merchant, and George Spioer, residing in the Fifteenth ward of the same city, gentleman, will be offered as sureties in the bond mentioned in the said petition, on the granting of the prayer thereof. Dated this day of A. D. 185 . Yours, &c., Samuel Eetnolds, Petitioner within named, or Geoegb Barker, Prodorfor, &c. To Philip Thompson, Executor, &c., of James Thompson, deceased. BOND. Know all men by these presents, that we, Samuel Reynolds, of the city of New York, car- penter, and William Seaman, of the same city, merchant, and George Spicer, of the same city, gentleman, are held and firmly bound unto Philip Thompson, the executor of the last will and testament of James Thompson, late of the city of New York, deceased, in the sum of six hundred doUars, lawful money of the United States of America^ to be paid to the said Philip Thompson, as such executor aforesaid, or to his oertaiu attorney, successors or assigns ; to which payment well and truly to be made, we bind ourselves, our and each of our heira, executors and administrators, jointly and severally, firmly by these presents. Sealed with our seals. Dated the day of one thousand eight hundred and fifty- Whereas the said James Thompson, in and by his said last will and testament, did give and bequeath to the said Samuel Reynolds, the sum of one'thousand dollars; and whereas the said legatee has lately apphed ia the surrogate of the county of New York, previous to the expiration of one year from the granting of the letters testamentary to the said executor, to be allowed to receive a portion of the said legacy, to the amouut of three hundred doUars, as necessary for his support ; and reasonable notice of the said apphcation having been given to the said executor, and the said surrogate being about to allow the said portion of the said legacy to be advanced to the said legatee, pursuant to the statute in such case made and pro- vided, upon the execution and dehvery of this obligation : Now, the condition of this obUgation is such, that if the said Samuel Reynolds shall return the said portion of the said legacy, with interest, whenever required, then this obhgation to be void, otherwise to remain in full force and virtue. (Signed.) Sealed and delivered, &c. ORDER ALLOWING- PAYMENT OP THE PORTION. At, &c. (See No. 3.) In the Matter op the Legact op Samuel Eeyitolds, under the last Will and Testament OF James Thompson, deceased. Samuel Reynolds, of the city of New York, carpenter, a legatee under the last will and testament of James Thompson, late of the city of New York, deceased, having lately made application to the surrogate of the county of New York, previous to the expiration of one year from the granting of the letters testamentary of the said last will and testament to Philip Thompson, the executor thereof, to be allowed to receive a portion of the legacy of one thou- sand dollars, given and bequeathed to him in and by the said last wiU and testament, to the amount of three hundred dollars, As necessary for his support; and reasonable notice of the said application having been given to the said executor, as appears by proof duly taken and filed herein ; and it appearing that there is at least one-third more of assets of tiie estate of the said James Thompson, deceased, in the hands of the said Philip Thompson, as such exe- cutor aforesaid, than will be sufficient to pay all debts, legacies and claims against the said estate now known, and that the said sum of three hundred dollars is necessary for the sup- port of the said legatee, and a satisfactory bond having been.executed for the return of the said portion with interest whenever required, and no objection being made: It ia ordered, COMPELLING ACCOtlNTS. xlv and the surrogate doth allow, that the said Philip Thompson, executor as aforesaid, advance and pay to the said Samuel Keynolds a portion of his said legacy, to the amount of three hundred dollars. And it Is further ordered, that the said Samuel Reynolds pay the fees and expenses of this proceeding. No. 62. P. 454. PETITION FOR ORDER TO ACCOUNT. Cowiiy of New York, ) Surrogate's Court, J To Albxandek W. Bkadfobd, Surrogate of the County of New York : The petition of "ffUliam Thompson, of the city of New York, merchant, respectfully show- eth, that your petitioner is one of the residuary legatees under the last will and testament of James Thompson, late of the city of New York, deceased. That the said last will and testa- ment was duly proved before the surrogate of the county of New York, and recorded in his office on the day of in the year 185 , and that letters testamentary there- of were on thfe same day duly granted and issued by the said surrogate to PliHip Thompson, sole executor in the said wiU named, and that more than eighteen months have expired since the time of such appointment of the said executor. That in and by the said will the said James Thompson, after giving and bequeathing certain specific and general legacies to the persons therein named, did give and bequeath all the rest, residue and remainder of his per- sonal property to his three sons, Philip Thompson, the said executor, Samuel Thompson, and William Thompson, your petitioner, to be equally divided between them, share and share alike, as by the said wUl, or the aforesaid record thereof, reference being thereto had, will more fully appear ; ' and your petitioner prays leave to make such reference, if it shall be ne- cessary for him so to do. Your petitioner further shows, that the said James Thompson left a large personal estate, amounting to more than ten thousand dollars, as by the inventory thereof, filed by the said executor in the office of the surrogate, wUl, reference being thereunto had, fuUy appear ; and that there is, or should be, a large amount of the said personal property remaining in the hands of the said executor, after paying all the debts of the said testator, and discharging and paying all the specific and general legacies bequeathed by his said will Your petitioner fiirther shows, that he haa frequently, and in a friendly manner, since the expiration of eighteen months ft'om the time of the appointment of the said PhUip Thompson as such executor aforesaid, appUed to him for an account of his proceedings in the discharge of his said trust, and for payment of the share or portion of the personal property of the said testator due to your petitioner under such bequest aforesaid, but that the said Philip Thomp- son has heretofore refused to render such account or to make such payment. In consideration of the premises, and to the end that the said PMhp Thompson, executor, as aforesaid, may be required to pay to your petitioner the amount of your petitioner's said claim, under the said last will and testament of the said testator, your petitioner prays that an order may be granted requiring the said Philip Thompson, at a certain short day, to be therein specified, personally to appear in this court, and render an account of his proceedings as such executor aforesaid, and that such ftrther or other proceedings, according to law, and pursuant to the practice of this court, may be thereon had, as- may be requisite to enforce the payment of your petitioner's claim aforesaid, and as to the surrogate shall seem just and equitable. And your petitioner will ever pray, &o. Dated this day of A D. 185 . The usual jurat. In the Matter or the Estate OF James Thompson, deceased. No. 63. P. 454. ORDER TO ACCOUNT. At, &c. {See Ko. 3.) On reading and filing the petition of William Thompson, of the city of New York mer- chant, one of the residuary legatees under the last will and testament of James Thompson, xlvi APPENDIX, late of the city of New York, deoased ; it is ordered, pursuant to the prayer of the said pe- tition, that Philip Thompson, the executor of the last will and testament of the said James Thompson, deceased, personally be and appear before the surrogate of the county of New York, at his office in the city of New York, on the day of next, at ten o'clock in the forenoon of that day, and render an account of his proceedings as such executor afore- said, or show cause why an attachment should not issue against him. A. W. B. ORDER FOR A CITATION TO ACCOUNT. (See p. 455.) mie. {As above.) At, &c (See No. 3.) On reading and filing the petition of WUham Thompson, of the city of New York, mer- chant, one of the residuary legatees under the last will and testament of James Thompson, late of the city of New York, deceased, it is ordered, that a citation issue to Philip Thomp- son, the executor of the said last will and testament, requiring him personally to be and ap- pear in this court, on the day of next, at ten o'clock' in the forenoon of that day, then and there to render an account of his proceedings as sudi executor, or show cause why an attachment should not issue against him. CITATION TO ACCOUNT. The People of the State of New York, by the grace of God free and independent; To PhUip Thompson, the executor of the last will and testament of James Thompson, late of the city of New York, deceased, send greeting : You are hereby cited and required, personally to be and appear before our surrogate of the county of New York, at his ofBce in the city of New York, on the day of next, at ten o'clock in the forenoon of that day, and then and there to render an account of your proceedings as such executor, or show cause why an attachment should not issue against you. In testimony whereof, we have caused the seal of o£6ce of our said surrogate to he here- unto affixed. Witness, Alexander W. Bradford, surrogate of our said county, at . [seal.] the surrogate's office in the city of New York, the day of in the year one thousand eight hundred and fifty- and of our independence the eighty- ' Alexajoibb W. Bbadfoed, Swrogaie.(w) No. 64. P. 464. EXECUTOR'S APPLICATION FOR FINAL SETTLEMENT OF HIS ACCOUNT, Comity of Nefw York, \ Sv/rrogaie's Gowrt. ) To A. TV. B., Surrogate of the County of New York: I The petition of Philip Thompson, of the city of New York, respectfully showeth, that he was duly qualified and appointed by the surrogate of the county of New York,(as the exec- utor of the last wUl and testament Jof James Thompson, late of the city of New York, de- ceased, on the day of in the year one thousand eight hundred and fifty- and that eighteen months and upwards have expired since such appointment. Your petitioner further shows, that in and by his said last will and testament, the said , James Thompson did dispose of his estate as follows: [set forth the will, or so much thereof as J . dwects the disposition of the personal property,) as by the said last win and testament, and the probate thereof now in the possession of your petitioner, or by the record of the same in the \ office of the surrogate, reference being thereunto had, wUl fully appear. And your petitioner \ prays leave to make such reference, if it shall be necessary for him so to do, for the purpose \of a settlement of his accounts as such executor aforesaid (w) . , Your petitioner further shows, that immediately after his appointment as suchlexeoutor,/!!^ entered upon the duties of the trusts thereof I*] ^hat he has*been required by the surro- gate to render an account of his proceedings as su6h executor, and that he desires to have his said account finally settled. («j) The otject of this part of the petition is stated at page 464, cmte, and may, or may not, be deemed im- poi*tant. It may certainly be omitted where the estate has proved insufficient for the payment of the debts. v- ^ FINAL SETTLEMENT OP ACCOUNTS. xlvii Tour petitioner, therefore, applies to the surrogate, pursuant to the statute in such case made and provided, for a citation requiring the creditoife, legatees and next of kin of the said James Thompson, deceased, to appear before the surrogate on some day therein to be speci- fied, and to attend the settlement of such accounts. And your petitioner will ever pray, &o. Dated this day of A. D. 1854. P. T. ■ If there has ieen no order to account, proceed from the [*] os follows : " And that he is pre- pared to render a final account of his proceedings as such executor. He therefore prays, that a citation may issue out of and under the seal of this court, to be directed to aU persons in- terested in the estate of the said James Thompson, deceased, requiring them to appear in this court on a certain day to be therein specified, to attend the final settlement of the accounts of your petitioner as such executor aforesaid. And your petitioner will ever pray, &c. Dated this day of A. D. 185 . P. T. No. 65. P. 466. ORDER FOR ISSUING CITATION TO ATTEND PINAL SETTLEMENT. At, &c. {See No. 3.) In the Matter of the Accounting of Philip Thompson, as Eiecutob op the lAST Will and, Testament OF James Thompson, deceased. On reading and filing the petition of Philip Thompson, the executor of the last will and testament of James Thompson, late of the city of New York, deceased, and eighteen months having expired since the time of the appointment of the said executor, [*] and the said PhiUp Thompson havmg been required to render an account of his proceedings as such executor, it is ordered, pursuant to the prayer of the said petition, that a citation issue requiriag the creditors, legatees and next of kin of the said James Thompson, deceased, to appear in this court, on the day of next, at ten o'clock in the forenoon of that day, then and there to attend the final settlement of the account afores%id. CITATION. The People of the State of New Tork, to the creditors, legatees and next of kin of James Thompson, late of the city of New Tork, deceased, send greeting: Tou and each of you are hereby cited and required, personally to be and appear before our surrogate of the county of New Tork, at his office in the city of New Tork, on the day of next, at ten o'clock in the forenoon of that day, then and there to attend the settlement of the account of PhiUp Thompson, as the executor of the last wiU and testament of the said James Thompson, deceased. In testimony whereof we have caused, &c. [l. s.] ^ A. W. B. If the executor render his accownt without ieing ordered to do so, the order for issuing the cita- tion will be, proceeding from the [*] as follows : It is ordered, pursuant to the prayer of the said petition, that a citation issue to all persons interested in the estate of the said James Thompson, deceased, requiring them to appear in this court on the day of next, at ten o'clock in the forenoon of that day, to attend the final settlement of the accounts of 'the said Philip Thompson, as such executor aforesaid. Tlie citation in the last case will ie as foUows : The People of the State of New Tork, to all persons interested in the estate of James Thompson, late of the city of New Tork, deceased, send greeting : Tou and each of you are hereby cited and required personally to be and appear before our surrogate of the county of New Tork, at his office in the city of New Tork, on the day of next, at ten o'clock in the forenoon of that day, then and there to attend the final settlement of the accounts of Philip Thompson, as the executor of the last will and testament of the said James Thompson, deceased. In testimony whereof we have caused, &c, [l. s.] A. "W. B. xlviii APMINDIX, ACCOUNTS. . xlix No. 6'7. Pp. 460, 4V2. • OATH TO ACCOUNT. County of New York, ss. — James Hill, of the city of New York, being duly swom, doth depose and say, that he is the administrator of all and singular, the goods, chattels and cred- its of Henry Lee, late of the city of New York, deceased, intestate, and that the annexed account is in all respects just and true ; that the same, according to the best of his knowl- edge, information and belief; contains a full and true account of all his receipts and disburse- ments on account of the estate of the said deceased, and of all sums of money and property belonging to tne estate of the said deceased, which have come into his hands as such admin- istrator, or which have been received by any other person, by his order or authority, for his use ; and that he doth not know of any error or omission in the said account, to the preju- dice of any of the parties interested in the estate of the said deceased. This deponent further says, that the sums under twenty dollars, charged in the said ac- count, for which no vouchers or other evidences of payment are hereto annexed, or for which he may not be able to produce vouchers or other evidences of payment, have actually been paid and disbursed by him as charged. James Hill, Sworn this day of ) A. D. 1855, before me, ) A W. R No. 68. P. 459, n., p. 471. ACCOUNT RENDERED BY AN EXECUTOR OB ADMINISTRATOR ON A PINAL SETTLEMENT. Surrogate's Court, )• County of New York. J In the M.4.TTEB .OF THE AcOOnNTING OF JAMES Hill, as the Exeoutoh of the last Will AND Testament of Henry Lee, deceased. Account of Proceedings. To the Surrogate of the County of New York: I, James Hill, of the caty of New York, do render the following account of my proceed- ings as administrator of Henry Lee, deceased, for final settlement and allowance : On the day of in the year 185 , letters testamentary of the last will and testament of Henry Lee, late of the ci|M^ New York, deceased, were issued to me. On the day of A. D. 1|^^B caused an inventoryof the personal estate of the deceased to be filed in this ofSce, wh^^ersonal estate therein set forth amounts by appraisement, by the appraisers duly appointed, to $ Schedule A, hereto annexed, contains a statement of all the property contained in said in- ventory, sold by me at public or private sale, with the prices and manner of sale; which sales were feirly made by me, at the best prices that could then be had, with due diligence, as I then believed. It also contains a statement of aU the debts due the said estate and mentioned in said inventory, which have been collected, and also of all interest for moneya received by me for which I am legally accountable. Schedule B, hereto annexed, contains a statement of all debts in said inventory men- tioned, not collected or collectable by me, together with the reasons why the same have not been collected and are not collectable ; and also a statement of the articles of personal prop- erty mentioned in said inveiitory unsold, and the reasons of the same being unsold, and their appraised value ; and also a statement of all property mentioned therein lost by accident, without any wilful default or negligence, the cause of its loss and appraised value. No other assets than those in said inventory, or herein set forth, have come to my possession or knowledge, and all the increase or decrease in the value of any assets of said deceased is allowed or charged in said schedules A and B. Schedule C, hereto annexed, contains a statement of all moneys paid by me for funeral and other necessary expenses for said -estate, together with the reasons and object of such expenditure. • m^ ^a^tMj^ ,^k. On or about the ff djay oif^^t^^^^ -in the year 1 ^m I caiised a notice for claimants to present their claims against the said estate to me wiHun the period fixed by Jaw, and at a certain place therein specified, to be published in two newspapers, according APPENDIX. to law, for six months, pursuant to an order of the surrogate of the county of N&w York • to which order, notice and due proof of publication, herewith filed, I refer as part of this account. • Schedule D, hereto annexed, contains a statement of all the claims of creditors presented to and allowed by me, or disputed by me, and for which a judgment or decree has been ren- dered against me, together with the names of the claimants, the general nature of the claim, its amount and the time of the rendition of the judgment; it also contains a statement of all moneys paid by me to the creditors of the deceased, and their names and the time of such paymeilt. Schedule B, hereto annexed, contains a statement of all moneys paid te the legatees, widow or next of kin of the deceased. Schedule P, hereto annexed, contains the names of all persons entitled, as widow, legatee or next of kin of the deceased, to a share of his estate, with their places of residence, degree of relationship, and a statement of which of them are- minors, and whether they have any general :guardian, and if so, their names and places of residence, to the best of my knowledge, infbrmatton and belief Schedule G, hereto annexed, contains a statement of all other facts affecting my adminis- tration of said estate, my rights, and those of others interested therein. I charge myself — Amount of inventory, . . . , ^ $ " increase, as shown by Exhibit A, I credit myself— Amount of loss on sales, as per Schedule B, . . . $ " debts not collected, as per do^ " Schedule 0, . . . . > " Schedule D, ..... '' Schedules, . . ... ' leaving a balance of . , . . . . . $ to be distributed to those entitled thereto, subject to the deductions of the amount of my commissions, and the expenses of this accounting.. The said schedules, which are severally signed by me, are part (rfthis account. Surrogate's Courlr^Gownty of New York. In the Matter of the Acooukting OF OF DECEASED. Giiy and County of New York, ss. — I, James HiU, of the city of New York, being duly sworn, say that the charges made in the fo^^^ng account of proceedings and schedules an- nexed, for moneys paid by me to creditorH|^tee3 and next of kin, and for necessary ex- penses, are correct;, that I have been charge^therein all the interest for moneys received by me and embraced in said account for which I am legally accountable ; that the moneys stated in said account as collected were all that were collectable, according to the best of my knowledge, information and belieii on the debts stated in such account, at the time of this settlement thereof; that the allowances in said account for the decrease in the value of any assets, and the. charges therein for the increase in such value, are correctly made ; and that I do not know of any error in said account, or anything omitted therefrom, which may in anywise prejudice the rights of any party ^interested in said estate. And deponent fur- ther saith that the sums under twenty dollars charged in the said account, for which no vouchers or other evidences of payment are produced, or for which may not be able to produce vouchers or other evidences of payment, have actually been paid and disbursed by him as charged. Sworn this day of | 185 , before me, f No; 69. P. 415- ENTRY OP ISSUING STJBPCENA ON AN ACCOUNTING. laOe. {Seejm 68.) { W^- ^■) "William Thompson, tfie petitioner herein, having applied for a subpcena to be directed to Samuel Eeynolds and James Clark, as witnesses on his part herein, it is ordered that a sub- REFERENCE TO AUDITOR. H poena issue accordingly, returnable the day of instant, at ten o'clock in the forenoon. SUBPCENA. FoUow No. 9, except that in the place of "in the matter of proving," &o., imeri, in the matter of the accounting of Philip Thompson, as the executor of the last will •and testament of James Thompson, late of the city of New York, deceased. • No. 10. P. 4T6. ORDER OF REFERENCE TO AN AUDITOR. mie. {See No. 68.) At, &c. {See No. 3.) Philip Thompson, the executor of the last will and testament of James Thompson, late o f the city of New York, deceased, having rendered his account of his proceedings as such executor, it is ordered that the said account be referred to "William Talmadge, of the city of New York, counsellor at law, as auditor, to examine and report thereon. It is fiirther ordered, that the first hearing of this matter before the said auditor, take place at his ofBce, number "Wall street, in the city of New York, on the day of instant, at ten o'clock in the forenoon of that day, and that the said auditor bring in his re- port herein, before the surrogate, on the day of next, at ten o'clock iu the forenoon, which last mentioned day is appointed for the hearing of the parties hereto, at the surrogate's ofBce, in the city of New York, on the confirmatipn of the said report of the said auditor. Before the Surrogate. No. 11. P. 4,11. FORM OF AN AUDITOR'S REPORT. \ In the Matter op the Accountisg of J. "W. S., THE Administrator of all and SINGULAR the GOODS, CHATTELS AND CRE- DITS OP "W. "W., DECEASED. I, the subscriber, an auditor appointed by the surrogate of the county of New York, to ex- amine the accounts of J. "W. S., -administrator of the estate of "W. "W., deceased, and to make report thereon, do hereby respectfully report, that I have examined the said accounts, and have been attended upon said examination by the said administrator and by A. E. "W., the widow of the saidgieceased, and by "W. C. F., the guardian ad litem of the minor children of the said deceased, and by T. P. B., on the part of the executrix of F. C, deceased, a creditor; that the accounts of the said administrator, presented by him, are correct, with the following exceptions, that is to say : 1. That the claim made by A. C, executrix, and J. L., executor of F. C, deceased, should have been allowed by the said administrator at $696 29, instead of $101 48. 2. That from the bill of particulars of the item of $95 1 3, charged in said administrator's ac- count for cash paid J. H., attorney, &c., (which bill of particulars is annexed to the said administrator's account and marked G.,) there should be deducted the sum of $5, the second item in said bih, which ought to be paid by the administrator personally, and not charged to the estate. And I also submit the propriety of the last charge in said bill of particulars, for the sum of ten dollars, to the decision of the surrogate, the same being for services rendered in his court, and to be allowed or disallowed according to what- ever rule the surrogate adopts in such cases ; I will only remark that I do not consider the charge unreasonable in amount for the services rendered. It is, however, objected to by the widow and the guardian for thee)iildren. I do also further report, that from the testMSony taken before me, it appears that the said administrator has used due diligence in endeavoring to collect the debts due to the estate, and that he lias eoUeoted all of the same that were coUeotable, lii iPPENDIX. I further report that the following are just claims against the said estate, with the excep- tion that the administrator has paid, as stated in iis account, to S. H., $22 50, and to Mrs. A. C, executrix, &o., of F. C, deceased, $315, which amounts are to be severally deducted from their respective distributive shares of said estate, that is to say : C. & A. 22d June, 1852, .... $100 00 F. A. K. 6th September, 1852 7 36 C. B. Q. 2tth November, 1853, . . . . 60 15 I. P. S. tth February, 1853, . . . . 45 81 S. H. S. 31st July, 1864, . . . . 63 75 H. C, executrix of F. C, deceased, Jan. 8, 1855, . 696 29 There is also a suit now pending in the Superior Court of the city of New York, brought by said administrator against H. L., a debtor of said estate, who defends said suit on tBb ground that he paid the demand to the widow of the deceased, before the appointment of the said administrator. I further report that the payment of $275 08, to Mrs. A. C, executrix, &c., for rent, was properly made, the goods and chattels of the estate of the said deceased being liable to be distrained if said rent was not paid. And also, that the other charges in said account of the said administrator, for moneys paid for necessary expenses, not hereinbefore particularly referred to, are correct, and also, that the .fixtures, stock, &o., at the factory belonging to the said estate, were sold in the usual manner at pubhc auction, and that the ordinary means by advertising, &c., and due diligence and prudence were used in obtaining a just price for the same. I do hereby further report, that the whole amount of the assets which have come to the hands of the said administrator, is $1,294 57 ; that the amount of the administrator's com- missions, is $57 36 ; that the amount which I have allowed as properly paid for necessary expenses, is $404 08, leavmg a balance appUcable to the payment of debts and the expenses of this accounting, and any other necessary expenses that may yet be incurred, of $833 13, which may be further reduced if the item of ten dollars above submitted to the judgment of the surrogate should be allowed by him. And I further report, that aU the claims presented against the estate and allowed, amount to $953 42, of which a portion has been paid as above stated, All which is respectfully submitted. New York, 1855. J. W. W. No. 72. P. 478. EXECUTOR'S CLAIM AND OATH. [State the particulars of the claim ; if it be on an account, the dates and items on both the debit and credit side must be given ; if it be on a note or other security, the date, the sum originally payable, the terms of payment, and the payments which niay have been made, must be set forth.] The following oath is to be att|||ced i County of New York, ss. — PhUip Thompson, of the city of New York, being duly sworn, doth depose and say, that the foregoing claim against James Thompson, late of the city of New York, deceased, is in all respects just and true ; and that the sum of dollars end cents, is now justly due to this deponent thereon, after allowing all payments and all proper discounts and off-sets against the same. # Sworn this day of ) A. D. 1855, before me, J Philip Thompson. A. -W. B. No. 73. P. 230. BXBCUTOE'S RENUNCIATION OF A PROVISION MADE BY THE -WILL FOB SPECIFIC COMPENSATION. To all whom it may concern : Whereas James Thompson, late of the city of New York, deceased, in and by his last will and testament did give and bequeath to Philip Thompson, his executor therein named, the sum of two hundred and fifty dollars, for specific compensa- tion for his services as such executor : Now know ye, that I, the said Philip Thompson, ex- ecutor as aforesaid, divers good and sufBoieut causes me thereunto moving, do hereby re- nounce all right and claim to the said speciS(j.lfegacy., "Witness my hand this day of in the year one thousand eight hun- dred and forty. Philip •Thompsoit. DECREES ON AdCOUNTING. liii No. 1i. Pp. 543, 544 FINAL DECREES AND DECREES FOR DISTRIBUTION. At, &c. {See No. 3.) In the Matter op the finai/ Settlement of THE Accounts oe 0. D., Administrator of THE Goods, &c., of a. b., deceased. 0. D., the administrator of all and singular the goods, chattels and credits of A. B., late of the city of New York, deceased, intestate, having heretofore duly rendered his account of his proceedings as such administrator, and a citation having been thereupon duly issued, pursuant to the statute, to all persons interested in the estate of the said deceased, and on the return of the said citation, on the day of last past, B. A., of the firm of C. k A., and E. A. B., creditors of the said intestate, having duly appeared in person, and "W. 0. F., having been duly appointed by the surrogate, the special guardian ol'the children and next of kin of the said intestate, (or the sole purpose of appearing for them and taking care of their interests upon the settlement of the accounts aforesaid, the said children and next of kin being minors, and the said special guardian having duly appeared in behalf of the said minors, and the s&id matter having been duly adjourned from day to day, and the said administrator having filed his supplemental and explanatory account, and A. E. B., the widow of the said intestate, having appeared and disputed the said accounts, and A. C, the executrix of the last will and testament of F. C, deceased, a creditor of the said A. B., de- ceased, having appeared by T. P. B., her proctor and counsel, and the said accounts having been duly referred to I. W., Esquire, as auditor, and the said auditor having returned and filed his report thereon, which is dated the ninth day of April, instant, and which said re- port has been duly confirmed, and the charge of ten dollars, the allowance of which is there- by submitted to the judgment of the surrogate, having been disallowed, and the said matter having been duly adjourned to this day, and on motion of I. H., of counsel for the said administrator, it is ordered, adjudged and decreed, and the surrogate, by virtue of the power and authority in him vested, doth order, adjudge and decree, that the said accounts of the said administrator, as corrected and allowed by the said auditor, according to his said re- port, and after disallowing the said charge of ten dollars, be, and the same are hereby finally settled and allowed. The following is a summary statement of the said accounts as settled and allowed, made and recorded, pursuant to the statute in such case made and provided, that is to say : • The total amount of the assets which have come into the hands of the said administrator, including proceeds of sale of the goods, &c., of the intestate, and all debts which were collectable, is one thousand two hundred and ninety-four dollars and fifty-seven cents . . . $1,294 57 The total amount of the charges for necessary expenses as allowed, is four hundred and four dollars and eight cents . . . 404 08 The commissions of the said administrator amount to fifty-seven dollars and thirty-six cents . . . . . . . 57 36 461 44 461 44 Leaving a balance to pay the costs and expenses of these proceedings, and for the purposes of distribution, of eight hundred and thirty- three dollars and thirteen cents ... . . 833 13 The said administrator has paid on account of the debt due by the intestate to the executrix, &c., ofF. C, deceased, the sum of three hundred and seventy-five dollars ...... . 375 00 On account of debt due to S. H., the sum of twenty-two dollars and fifty cents . . . . . . . . 22 50 $397 50 397 50 Leaving a balance in the hands of the said administrator of four hundred and thirty-five dollars and sixty-three cents . . ■ . 435 63 The claims against the estate of the said A. B., deceased, and for which the assets which came to the hands of the said administrator, were liv APPENDIX. liable, as settled and allowed aa aforesaid, were as follows, that is to say: C. i A. . . . 22d June, 1862, . P A. K. . . . 6th Sept,, 1862, C. B. Q. . . , 27th Nov., 1853, . J. P. S. . . . 7th Feb., 1853, S. H. a. . . . 31st July, 1854, . A. C, executrix, Ac, of P. C, deceased, 8th Jan'y, 1855, Of which have been paid on account of the said claims of A. C, execu- trix, &e., and S. H. S., as above set forth, the sum of . . . And it appearing that there is still pending and undetermined, a suit brought by the said administrator in the Superior Court of the city of New Torif, against H. L., to recover a debt due by tiie said TT. L., to the said intestate, and the demand in controversy, in which, said suit, if recovered and collected by the said administrator, will be assets in his hands applicable to the purposes of his administration : It is ordered, that all further proceedings in thi,9 matter be stayed until the determination of the said suit, and that the said matter stand adjourned until the day of , next, at ten o'clock in the forenoon. And it is further ordered, that the said administrator, out of the said balance of moneys so as afore-said remaining in his hands, pay to the auditor aforesaid, the sum of six dollar? and fifty cents, allowed to him for compensation for his services in this matter; aiid that out of the said moneys, he also pay the surrogate's fees and charges- upon this proceeding, amounting to the sum of ten dollars and forty-five cents ; and, also, that he retain-out of the said balance of moneys, the sum of eight dollars and forty-five cents, allowed for his necessary and legal expenses incurred in oonduoting the said proceeding. $100 00 7 36 50 15 45 81 53 16 696 29 $953 42 $397 50 DECREE FOB DISTRIBUTION. At, &c. (See No. 3.) In the Ma-Ttrr of the final Settlement of THE Accounts of C. D., ADMiNisiEATOfi of THE Goods, &o. OP A. B. deceased. ' The accounts of 0. D., administrator of all and singular the goods, chattels and credits of A. B., late of the city of New York, deceased, having been duly settled and allowed by the decree made in tiiis matter on the eighteenth day of April, last past; and the said matter having been duly adjourned until this day ; and the said administrator having appeared in person, and by J. H,, his counsel, and E. B., the widow of the said deceased, W. C. P., the special i;uardian of the children of the said deceased, minors, and B. A., a creditor of the said deceased, having appeared in person, and A. C, the executrix, &c., of P. C, deceased, a creditor ol the said deceased having appeared by I. E. P., her proctor: And it appearing that the suit mentioned in the said decree brought by the said administrator in the Superior Court of the city ofNew York, against H. L., has been terminated in favor of the defendant therein, and the said administrator having rendered a further account, and the same having been' referred to J. W., Esquire, as auditor, and the said auditor having made his report: And it appearing from the said account and report, that the said administrator has re- ceived the sum often dollars and twenty-six cents, for interest on the sum of four hundred and ten dollars and twenty-three cents, remaining in his hands as such administrator at the time of the said decree, making the whole sum belonging to the estate of the deceased, for which the said administrator is now accountable, four hundred and twenty dollars and forty- nine cents; and that he has paid under the order of the said Superior Court, the referees bill of fees in the said suit above mentioned, amounting to twenty-five dollars and seventy- four cents; and, also, the plaintiff's attorney's taxed bill of costs in the said suit, amount- ing to one hundred forty-one dollars and seventeen cents, leaving a balance now in the hands of said administrator, belonging to the estate of the said A. B,, deceased, of two hun- dred and fifty-three dollars and fifty-eight cents. On motion of J. H., of counsel for the said administrator, it is ordered, adjudged and decreed, and the surrogate, by virtue of the power DECREES ON ACCOUNTING, ly in him vested, doth order, adjudge and decree, that the said report be confirmed, and that the said account be, and the same is hereby finally settled and allowed. And it is further ordered, that the said administrator, out of the said sum so remaining in Ws hands, pay to the auditor aforesaid, for compensation for his services in tliis matter, the sum of two dollars ; and also that he pay the surrogate's fees on this proceeding, amounting to four dollars and eighty-one cents, and that he pay and distribute tiie balance of the said sum, amounting to two hundred and forty-six dollars and seventy-seven cents, to and among the creditors of the said deceased named in the said above mentioned decree prnfior* tionably, according to the amounts due on their respective claims, as stated and established in and by the said decree. The whole amount of the assets of the said estate which came into the hands of the said administrator, applicable to the payment of the fees and expenses of these proceedings, and for the purpose of dislril ution, as established by the said above mentioned decree, was To which is to be added interest included in the account this day filed, Prom which is to be deducted the fees and expenses directed to- be paid and allowed by the said above mentioned decree, . Eeferee's bill and costs as taxed in suit against H. L., as stated in ac- count filed this day, ....... Fees and expenses on present proceedings, . . - Leaving a balance applicable to the payment of the debts of the deceased of six hundred and forty-four dollars and twenty-seven cents, . The amount paid on account of debts, as stated in the said above men- tioned decree, is $397 50, leaving the balance now distributable, as above stated, .•■,... $246 'i1 i f833 13 10 26 Ih 40 166 .91 6 81 644 27 843 843 39 39 It is therefore ordered, that the said administrator pay to the persons named in the first column of the following list, creditors of the said intestate, the suras set opposite their re- spective names in the third column of the said hst, that is to say, that he pay to 0. k A. on their claim of . , . . . . F. A. K. on his claim of . . . . . C. E. Q. on his claim of . 1. P. S. on his claim of ..... S. H. S. on his claim of , Whereof the said administrator has already paid the sum of $22 50, . 13 82 A. C, executrix, Ac, of F G,, deceased, on her claim of . . . 696 29 ■Whereof the said administrator has already paid the sum of $315. . 95 53 . $100 00 67 5g 7 36 4 97 50 15 33 88 45 87 30 99 . 53 75 $246 77 The said sums being the amounts to which the said several creditors of the said intestate are respectively entitled on this distribution. (a;) (a:) The following form of discharge to an administrator may he adopted. It may he easily applied in case» of payment, to legatees or next of kin. It is here drawn to bo indorsed on a certified copy of the decree for distrilmtion ; 0. & A., , . . $67 68 F. A. K., . ... 4 9T C. E. Q., 33 88 We do herehy severally acknowledge to have received from C. D., the administrator of all and singular the goods, chattels and credits of A. B , deceased, the sums above set opposite our respective names, and ordered to be paid to ns respectively by the decree of which the within is a copy, and we do hereby, in consideration of the premises, and of one dollar to each of us in hand paid, release and discharge the said 0. D. from all fur.- ther liability and accountability as such administrator aforesaid, or for or on account of the estate of the said A. E., deceased. In witness whereof, we have hereunto severally set our hands andseais. Sealed iu the presence of ^ . C. & A., [SEAl.] ■F. A. K., TsEAl,.] ■C. E. Q., [8I!AL,J Ivi APPENDIX. ANOTHER POEM. At, &c. (See Ko. 3.) ilih July, 1844. In the Matter op the Estate I OF i- I. R., DECEASED. 1 The surrogate makes and records this summary statement of the accounts of S. P., I. L. E. and P. R. K., executors of the last will and testament of I. R. aforesaid, deceased, as fi- nally allowed and settled by him. The debit side of the said accounts, principal, . Income . . ■ . ' . The credit : To sundry bills for personal expenses, outstanding debts, ex- penses of collecting estate previous to Peb. 27, '44, . Prom Peb. 27, '44, to July 10, '44, per statement, . To legacies and interest, . ... To commissioners of executors by law, To the following sums paid under the provisions of the will, as follows : — To the children of E. B. E., through the N. T. L. I. & T. Com- pany, their guardian, . To I. D. To E. A, & I. R. D., . To S. P., I. L. E. and P. B. R., as trustees of E. M. K,, To the same, as trustees of 0. C, To the same, as trustees of E. G., To the same, as trustees of M. E. E., , To the same, as trustees of 0. S., . To the same, as trustees of E. W., $179,074 42 11,250 00 190,324 42 1,328 43 146 60 2,070 75 2,003 24 4,574 75 23,073 95 9,186 32 23,073 75 23,073 75 23,073 75 32,307 45 23,073 75 23,073 75 190,060 24 Leaving a balance of $264 18 In the same matter. — On the eighth day of July, in the same, year, at the place aforesaid, at the office of the surrogate, the citation issued by the said surrogate, on the petition of S. P., I. L. R. and P. E. K , executors, being returned duly served on the N. T. L. I. & T. Company, the guardians of the infant children E. B. R. and on I. D., and duly advertised in the New York. American and Albany Argus, and the said P. E. K., one of the executors appearing in proper person, and by "W. B., Esquire, his counsel and the counsel of the execu- tors, and no other person appearing, whereupon the said surrogate proceeded to examine the said executor upon oath, and the inventory of the estate which was produced before him, and the vouchers and accounts of the said executors ; and it appearing that the said executors have accounted for every part of the said estate, and that no profit has been made by them of any increase in the inventory, and the accounts of the said executors having been finally settled, and a summary statement of the same as finally settled and allowed by the surrogate having been above and herewith recorded : It is ordered that the said ac- counts be, and the same are finally settled and allowed as filed and adjusted by the surro- gate. In the same matter. — The accounts of S. P., I. L. E. and P. E. K., the executors of L E., deceased, having been finally settled and allowed, by which it appears that there is in their hands undistributed the sum of two hundred and sixty-four dollars and eighteen cents :. It is ordered that they pay out of this sum fifteen dollars for the costs and expenses of such ac- counting and of the distribution, . . And that they pay the residue of said sum as follows : To the N. T. L. I. & T. Co., as guardians of the children of E.- B. E. Tol. D. . . . . . To the children of S. D. . To S. P., I. L. E. and P. E. K., trustees of E. M. E. To the same, as trustees of C. 0. . To the same, as trustees of E. G. To the same, as trustees of M. E. R. To the same, as trustees of C. S. To the same, aa trustees of B. W. . I . 44 25 21 10 61 69 21 30 21 30 21 30 25 61 21 31 21 32 ENFORCING SURROGATE'S DECREE. lyii As the respective distributive shares under said will remaining undistributed to them as ANOTHER FORM. Ai, &c. {See No. 3.) \lth November, 1845. In the Matter op the Final Accountino OP A. B..AND M. E. W., AS Administka- TOE AND AbMINISTBATBIX OF THE ES- TATE OF I. W., DECEASED. J The surrogate makes and records this summary statement of the accounts of the adminis- trator and administratrix, as finally settled and aJlowed by him and adjusted. The whole amount of the inventory, as mentioned in said account, is . $2,'710 61 The increase of said inventory is ...... 191 19 Making the total amount of assets . . . 3,50'? 80 From this there is to be deducted the following items : Demands against the estate, as per Schedule B, . . $1,'731 47 Debts due the estate uncoUectable, per Schedule F, . . 115 48 Expenses of funeral and adrainistration, per Schedule G, . 49 90 1,896 85 Leaving a balance, as settled, . . $1,610 95 In the same matter. — The accounts of A. B. and M. E. W., administrator and administra- trix, having been filed, and a summary statement of the same, as finally settled and allowed by the surrogate, having been above and herewith recorded, it is ordered that the said ac- counts be, and the same are, settled and allowed as filed and adjusted by the surrogate. In the Matter of the Distribution of THE Personal Estate op I. "W"., de- ceased. The accounts of A. B. and M. E. W., the administrator and administratrix, having been finally settled and allowed^ by which it appears that there is in their hands undistributed the sum of one thousand six hundred and ten dollars and ninety-five cents, (1,610 95 :) It is ordered that the said administrator and administratrix be allowed the sum of one hundred and twelve dollars and sixty-seven cents for their commissions, and that they pay the sum of seven dollars and sixty-three cents for the costs and expenses of such accounting and of this distribution, and that they distribute the residue of the said sum as follows, to wit: To M. E. W. the sum of four hundred and ninety-six dollars and eighty-eight cents, as widow ; the sum of three hundred and thirty-one dollars and twenty-five cents to the guardian of F. A. "W., minor ; the sum of three hundred and thirty-one dollars and twenty-five cents to the guardian of "W. A. "W"., a minor ; and the sum of three hundred and thirty-one dollars and twenty-five cents to the guardian of B. T. W., a minor — being the sums to which they are respectively entitled on this distribution. No. 75. P. 547. CERTIFICATE OF DECREE FOR PAYMENT OF MONET. County of New York, ) Surrogate's Cowrt. ) In THE Matter op the AccouNTiNa op Philip Thompson, as the Executoe OP THE last Will and Testament op James Thompson, late op the City op New Tore, deceased. I, A. "W. B., surrogate of the county of New Tork, do hereby certify that on the day of in the year one thousand eight hundred and fifty- a decree was iviii APPENDIX. made by me in this matter in favor of William Thompson, residing in the city of Poughkeep- - sie, in the county of Dutchess, carpenter, a creditor of James Thompson, deceased, against Philip Thompson, residing in the city of New York, merchant, the executor of the last will and testament of the said James Thompson, directing the payment by the said Philip Thomp- son, executor as aforesaid, to the said WilUam Thompson, of the sum of three hundred and twenty-four dollars and ten cents, for the debt due to the said Wilham Thompson from the said deceased, and the sum of thirty-one dollars and twenty-five cents for his costs and ex- penses in this proceeding, making in the whole the sum of three hundred and fifty-five dol- lars and thirty-five cents. Wiiness my hand and seal of office at the city of New York, this day of [l. s.] in the year one thousand eight hundred and fifty-five. A. W. B., Surrogate. No. 16. P. 54'7. OKDER TO ASSIGN ADMINISTRATOR'S BOND ON EXECUTION BEING RE- TURNED UNSATISFIED. At, &c. (See No. 3.) In the Matter of the Dboeee in favor of l. c, against a. j., administra- tor, &0., of w. b., deceased, for the Payment of Money, A decree having heretofore been made by.this court, requirmg A. J., the administrator of aU and singular the goods, chattels and credits of W. B., late of the city of New York, de- ceased, intestate, to pay to L. C. the sum of three hundred and fifteen dollars and ten cents for his claim against the estate of the said intestate, and a certificate of the said decree hav- ing been issued, and the same having been docketed with the clerk of the county of New York, pursuant to the statute in such case made and provided, as appears by a certified copy of the transcript of the said docket duly filed herein ; and an execution having been diiy issued thereon to the sheriif of the city and county of New York, against the said A. J. ; and the said execution having been returned unsatisfied, as appears by a certified copy of the said execution, and of the return of the said sheriff, also duly filed herein, and on reading and fifing the application of the said L. C, it is ordered that the bond given by the said A. J. as such administrator aforesaid, be, and the same is hereby assigned to the said L. C, for the purpose of being prosecuted. No. T7. P. 554. PETITION FOR AUTHORITY TO MORTGAGE, LEASE OR SELL REAL ESTATE OF DECEASED. County of New York, \ Surrogate's Court. J To Alexander "W. Bradford, Surrogate of the County of New York. The petition of A. L., administrator of all and singular the goods, chattels and credits of B. M., late of the city of New York, deceased, intestate, respectfully showeth: That the said B. M. departed this life on the thirteenth day of July, in the year 1854, and that your petitioner was duly appointed such administrator foresaid, by the surrogate of the county of New York, on the day of in the year 1854 : That he has made and filed an iaventory, according to law, of the personal estate of said intestate, and that he has discovered the said personal estate to be insutficient to pay the debts of the said intestate. Your petitioner -further shows, that tlie amount of personal property of the said intestate which has come into his hands as such administrator, is nineteen thousand eight hundred and fifteen dollars and eighteen cents, and that the sources whence, and the manner in which the said sum has been derived, appear in the account hereto annexed, marked schedule A. That your petitioner has appUed the said personal property in due course of administration, and has paid out the sura of thirteen thousand one hundred and seventeen dollars and eighty cents, and that the particulars of such application of the said personal property also appear in the said account hereto annexed, marked schedule A, leaving in the hands of your peti- tioner, as such administrator aforesaid, on this day of in the j'ear 165.1, the sum of six thousand six hundred and ninety-seven dollars and thirty-eight cents. And your pe> AUTHORITY TO MORTGAGE, LEASE OR SELL. lix titioner rerily believes and atates the fact to be, that he has proceeded with reasonable dili- gence in converting the personal property of the said intestate into money, and applying the same to the payment of debts. Tom- petitioner further shows that the debts outstanding against the said intestate, and the particulars thereof as far as the same can be ascertained, appear in the schedule hereto annexed, marked schedule B. That the debts against the said intestate not secured by mortgage, or otherwise charged upon the real estate of the said intestate hereinafter de- scribed, and which remain to be paid on this day of in the year 1855, as far as the same can be ascertained by your petitioner, and as have been admitted by him upon due evidence, amount to four hundred and thirty-two thousand one hundred and fifty-four dol- lars and fifty-eight cents, exclusive of interest, as fully appears by the said last mentioned schedule. Tour petitioner further shows that the claims against the said intestate, mentioned in the schedule hereto annexed, marked schedule C, have been presented to your petitioner as such administrator aforesaid, but have not been admitted by him, because by the books of ac- counts of the said intestate, by no means so large sums appear to be due to the parties present- ing such claims. Tour petitioner further shows, that the said intestate died seised of the following described real estate, valued at the sums respectively affixed to each lot or parcel, and occupied or not occupied, as stated in respect to each of the said several lots or parcels ; that is to say : All that certain house and lot of land, situate, lying and being in the Eighth ward of the city of New Tork, and known as, &c. ^ The value of this house and lot, in the judgment of your petitioner, is $8,000. The occupant of the same is W. G. Also all those certain lots, pieces or parcels of ground, situate, &e. The value of these lots, in the judgment of your petitioner, is $800. They are not occupied. Tour petitioner further shows, that the heirs of the said B. M., deceased, are D. M., E. M. and ¥. J., wife of A. J., aU over the age of twenty-one years, and G. M. and H. M., minors, over fourteen years of age, having no general guS.rdian, and J. M., a minor under fourteen years of age, also having no general guardian, all residing in the city of New York, his only children. [*] In consideration of the premises, your petitioner, pursuant to the statute in such case made and provided, applies to the surrogate for authority to mortgage, lease or sell so much of the real estate of the said B. M., deceased, as shall be necessary to pay his debts. And your petitioner will ever pray, &c. Dated this day of 1855. The usual jurat. SCHEDULE A Will consist of an account of the proceedings of the administrator up to the time of the pre- sentation of the petition, showing the items and particulars of aU sums received and paid out by him in the course of the administration. SCHEDULE B Win consist of a list of the debts owing by the deceased, showing the names of the persons to whom the same are due, and in respect to each debt, whether it is on bond, note, book account or otherwise ; the date, and terms and conditions, so far as they can be ascertained of each, the sums originally payable, and the payments which may have been made, and the amount due thereon. SCHEDULE C Will consist of a list of the debts disputed by the administrator, and the particulars thereof If the ad/minisirator shall have ascertained that the requisite amount for the payment of the debts of the intestate may be raised by mortgage, a statement may be inserted in the petition at the [*] similar to thefoUowiag : Your petitioner further shows, that W. R., of the city of New York, has. offered to loan a sufficient amount to pay the debts of the said intestate on a mortgage to him of the said , real estate. 45 Ix APPENDIX. No. 78. P. 555. ITOTICB OF INTENTION TO APPLY FOR THE APPOINTMENT OP A SPECIAL GUARDIAN. Cownty of New York, ) Sv/rrogaie's Court. ) In the Matter of the Application of A. L., THE Administeatob, &c., op B. M., DECEASED, INTESTATE, FOE AUTHOR- ITY TO Mortgage, Lease or Sell the Real Estate op the said Intestate, ] FOR the Payment of his Debts. ' Take notice, that I have presented an appKoation to the surrogate of the county of New Tork, pursuant to the statute in such case made and provided, for authority to mortgage, lease or sell the real estate of*B. M., late of the city of New York, deceased, intestate, for the pay- ment of his debts, and that I intend to apply to the said surrogate, at his office in the city of New York, on the day of instant, at ten o'clock in the forenoon, for the appointment of a guardian for each of you, the minor heirs of the said intestate, for the sole purpose of appearing for you, and taking care of your interests in the proceedings on the said applicsi' tion. Dated this day of 1855. Yours, Ac, A. L., Administrator, &c. ToG. M. 1 ofB.M., deceased, H. M. [• Minors, heirs of B. M. deceased. J. M. ) No. 79. P. 556. ORDER, APPOINTING SPECIAL GUARDLiN, {At, &c. (See No. 3.) In the Matter of the Application op A. L., THE Administrator, &c., of B. M., deceased, Intestate, for author- ity to Mortgage, Lease or Sell the Real Estate op the said Intestate FOR the Payment of his Debts. A. L., the administrator of aU and singular the goods, chattels and credits of B. M , late oi the city of New York, deceased, intestate, having heretofore presented his application to the surrogate, pursuant to the statute in such case made and provided, for authority to mort- gage, lease or seU the real estate of the said intestate for the payment of his debts ; and on reading and filing due proof, by affidavit, of the service of a notice of the intention of thesaid administrator to apply on this day for the appointment of a special guardian for G. M. and H. M., minors over fourteen years of age, and J. M., a minor under fourteen years of age, on the said G. M. and H. M. personally, and on S. M., the mother of the said J. M., in whose custody the said minor now is, and with whom he lives ; and no one appearing to oppose, it is ordered that "W. C. P. a disinterested freeholder, residing in the city of New York, be, and he is hereby appointed the guardian of the said G. M., H. M. and J. M., minors aforesaid, for the sole purpose of appearing for them, and taking care of their interest in the proceedings on the said application. No. 80. P. 557. ORDER TO SHOW CAUSE. nUe. {See No. 79.) At, between A. L., administrator of all and singular the goods, chattels and credits of B. M., late of the city of New York, deceased,, .of the first part, and G. E, B , of the city of New York, gentleman, of the second part, witnesseth ; Whereas A. W. B., Esquire, surrogate of the county of New York, heretofore made an order, wliich said order is in the words and figures following, to wit: [Here take in order- for sale.] And whereas, the whole of the premises described in the said order, have ac» oordingly been sold, at public vendue, by the said party of the first part^ on the DISTRIBUTION OF PROCEEDS OF SALE. Ixv day of , 185 , at the Merchants' Exchange, in the county of New York, that being the county where the said premises are situated, due notice of the time and place of holding suoli sale having been given according to law : And whereas, the said parly of the first part did make return of his proceedings upon such order of sale to the said surrogate, in pursuance of the said order, and of the statute in such case made and provided : And whereas, afterwards, the said surrogate, after examining the said proceedings, did make an order in the words and figures following, to wit: [Here take in the order for confirmation.J And whereas, the said party of the first part did at the said sale sell to the said party of the second part, he being the highest bidder for the same, Now this indenture further witnesseth : That the said party of the first part, in pursu- ance of the said sale, and of the said orders of the said surrogate, and in pursuance of the statutes of this state in such ease made and provided, and, also, for and in consideration of the sum of dollars, lawful money of the United States of America, to him in hand paid by the said party of the second part, the receipt whereof is hereby acknowledged, hath bargained, sold and conveyed, and by these presents doth bargain, sell and convey unto the said party of the second part, his heirs and assigns for ever, all that certain, &c. Together with the privileges and appurtenances thereunto belonging, or in any way apper- taining, and all the estate, right and interest which the said B. M., deceased, at the time of his death, had of, in and to the same, free and discharged from all claims tor dower of R. M , widow of the said B. M., deceased; subject, however, to all charges by judgment, mort- gage or otherwise, upon the lands so sold, existing at the time of the death of the. said B. M. To have and to hold the above described and conveyed premises, with the appurtenances, and all the estate, right and interest which the said B. M., at the time of his death had therein, unto the said party of the second part, his heirs and assigns forever, as fully and amply as the said party of the first part might, could or ought to sell and convey the same, by virtue of the orders above recited, and of the statutes of this state made and provided, or otherwise. In witness whereof the said party of the first part has hereunto set hand and seal, the day and year first above written. Sealed and delivered i8 presence of No. 89. P. 5T2. NOTICE TO WIDOW AS TO SATISFACTION OF HER DOWER. Swrogate^s Gqjirt, County of New York. In the Matter of the Disthibution of i THE PeOOBEDS of THE SALE OF THE REAL Estate of B. M., deceased. I . Take notice, that A. L., the administrator of all and singular the goods, chattels and cred- its of B. M., late of tlie city of New York, deceased, intestate, hasjjbrought into the office of the surrogate of the county of New York, the moneys arising from the sale lately made by him of the real estate of the said intestate, pursuant to an order authorizing such sale heretofore granted by the said surrogate, and that the said surrogate will satisfy your claim of dower upon the lands so sold, by the payment to you of such sum in gross as shall be deemed, upon the principles of law applicable to annuities, a reasonable satisfaction for your said claim, if you sh.'dl consent before or on the day of instant, at ten o'clock in the forenoon, to accept such sum in lieu of your said dower, by an instrument under seal, duly acknowledged or proved in the same manner as deeds entitled to be recorded: And that if such consent be not given within the time above mentioned, then the said surrogate will set apart one-third of the purchase money of the said real estate to satisfy your said claim of dower, and will cause the same to be invested according to law. Dated this " day of A. D. 185 . Yours, &o. To R. M., the widow of B. M., deceased, intestate. Ixvi APPENDIX. ' No. 90. P. 573, ANNtriTT TABIiE. A table, corresponding with the Northampton tables, referred to at page 673, and in the 75th rule of the Supreme Court, showing the value of an annuity of one dollar, at six per cent., on a single life, at any age from one year to ninety-four, inclusive. Number of Number of Number of Number of years' pur- years' pur- years' pur- years' pur- Age. chase the Age. chase the Age, chase the Age. cliase the annuity is annuity is annuity is annuity is worth. worth. 49 worth. 9,563. 73 worth. 4,781 1 10,107 25 12,063 2 11,724 26 11,992 50 9.417 74 4,566 8 12,348 27 11,917 51 9,273 75 4,354 4 12,769 28 11,841 52 9.129 76 4,154 5 12,962 29 1J,763 63 8,980 77 3.952 6 13,156 30 11,682 54 8,827 78 3,742 7 13,275 31 11,598 56 8,670 79 3,614 8 13,337 32 11,512 56 8,509 80 •3,281 9 ■ 13,335 33 11,423 57 8,343 81 3,156 10 13,285 34 11,331 58 8,173 82 2,926 11 13,212 35 11.236 59 7,999 83 2,713 12 13,130 36 11,137 60 7,820 84 2,651 13 13,044 37 11,035 61 7,637 85. 2,402 U 12,953 38 10,929 62 7,449 86 2,266 15 12,867 39 10,819 63 7,263 87 2,138 16 12,755 40 10,705 64 7,062 88 2,031 17 12,655 41 10,589 65 6,841 89 1,882 18 12,562 42 10,473 66 6,625 90 1,689 19 12,477 43 10,356 67 6,405 91 1,422 20 12,398 44 10,236 68 6,179 92 1,136 21 12,329 45 10,110 69 6,949 93 0,806 22 12,265 46 9,980 70 5,716 94 0,518 23 12,200 47 9,846 71 5.479 ^* 12,132 48 9,707 72 5,241 KULE FOE COMPUTma THE VALUE OF THE LIFE ESTATE OE ANKUITT. Calculate the interest, at six per cent., for one year, upon the sum to the income of which the person is entitled ; multiply this interest by the number of years' purchase set opposite the person's age in the table, and the product is the gross value of the life estate of such person in said sum. Suppose a widow's age is 37, and she is entitled to dower in real estate worth $350 75 ; one-third of this is $116 91 2-3 ; interest on $116 91, one year, at six per cent., is $7 01 ; the number of years' purchase which an annuity of one dollar is worth, at the age of 37, as appears by the table, is 11 years and 035.1000 parts of a year, which, multiplied by $7 01, the income for one year, gives $77 36 and a fraction, as the gross value of her right of dower. | No. 91. P. 673. "WIDOW'S RELEASE OP DOWEB, AND CONSENT TO ACCEPT A SUM IN GROSS. Whereas A. L., the administrator of all and singular the goods, chattels and credits of B. M., late of the city of New York, deceased, my late husband, has recently sold the real es- tate whereof the said B. M. died seised, upon an order of the surrogate of tiie county of New DISTRIBUTION OP PEOCEEDS. Ixvii Tork, authorizing him to sell the same for the payment of the debts of the said deceased, and has brought the moneys arising from such sale into the office of the said surrogate for the pur- pose of distribution: Now these presents witness, that I, E. M, of the city of New. York, widow of the said B. M., deceased, do hereby consent to accept such sum in gross, as shall be deemed, upon the principles of law, applicable to annuities, a reasonable satisfaction for my claim of dower upon the lands so sold as aforesaid in lieu of my dower therein. And these presents lurther witness, that I, the saidE. M., widow as aforesaid, do hereby acknowledge that I have received from A. W. B., Esquire, surrogate of the county of New York, the sum of dollars and cents, pursuant to the foregoing consent, in full discharge and satisfaction of all my right and claim of dower upon the lands so sold as aforesaid. In testimony whereof, I have hereunto set my hand and seal this day of in the year one thousand eight hundred and fifty- Sealed and delivered, &c. E. M., [seal.] No. 92. P. 5t3. ORDEE FOR PUBLICATION OP NOTICE OP DISTEIBUTION. Ai, &c. iSee No. 3.) I« THE Matter op the DiSTRiBnTiON OP THE PbOCEBDS op THE SALE OP THE Eeal Estate op B. M., de- ceased. A, L., the administrator of all and singular the goods, chattels and credits of B. M., late of the city of New York, deceased, intestate, having brought into the office of the surrogate the moneys arising from the sale of the real estate of the said intestate, lately made by him upon the order of the surrogate, and the proceeds of the said sale, after making the necessary de- ductions therefrom, not being sufficient to pay all the debts of the said intestate, it is there- upon ordered, that the balance of such proceeds be divided among the creditors according to law, at the surrogate's office in the city of New York, on the day of next, and that notice of the time and place of making such distribution be published for six weeks suc- cessively, in the newspaper entitled "the Evening Post," printed in the county of New York, and also in the newspaper entitled " the Albany Argus," the said last named newspaper being deemed, by the surrogate, most likely to give notice to the creditors. NOTICE OP DISTEIBUTION. Notice IS hereby given, that the balance remaining of the proceeds of the sale of the real estate of B. M., late of the city of New York, deceased, intestate, lately made under the or^ der of the surrogate of the county of New York, by A. L., the administrator of all and sin- gular the goods, chattels and credits of the said intestate, will be divided by the said surro- gate among the creditors of the said intestate, in proportion to their respective debts, accord- ing to law, at the surrogate's office in the city of New York, on the day of next, at ten o'clock in the forenoon of that day. Dated this day of A. D. 185 No. 93. P. 574. ENTBY OP DISTRIBUTION IN THE SURROGATE'S MINUTES. At, &c. (See No. 3.) In THE Matter op the Estate op , R. S., deceased. I On the hearing for distribution, in pursuance of notice, on the day of 1855, and at the times and places to which such hearing was adjourned, and on the hearing on the order of sale, the following demands of the following named persons have been and were es- Ixviii APPENDIX. tablished as valid subsisting demands against the said intestate,' R. S., deceased, and are the only demands established : That said persons' names are mentioned in the first column of the foEowing list, and the amount due to each in the second column opposite each name, and the amount to which each person is entitled on this distribution, this day ordered, in the third column opposite each name, which Ust is as follows, that is to say. Names. Amount due. Amount entitled. "W. T., $1,281 13 $726 73 "W. A., 192 11 108 92 &c. &o. At, &c. (See No. 3.) In the Matter of the Disteibu- I HON OF THE ESTATE OP V R S. DECEASED. \ Notice that distribution of the proceeds of the sale of the- real estate in this matter, would be \nade on the day of 186 having been duly published, and the whole amount of the money paid mto the office of the said surrogate, on the sale of the said real es- tate, being $4,132 59, from which is to be deducted the costs and charges of the said surro- gate in this matter, to wit, the sum of $62 23, for his fees and costs, and $7 40, for adver- tising notice of distr^ution in this matter in the New Tork Daily IMbune, leavmg in the hands of the said suW)gate, undistributed, the sum of $4, 062 96, and B. S., the widow of the testator, being entitled to dower in the lands sold, and she having consented to take a gross sum in lieu of said dower, it is ordered that distribution be made of said, sum as follows, that is to say, to the said widow the sum of $7 77 08, being the gross sum to which she is entitled in lieu of said dower, and that the residue of said sum be distributed among the creditors of the testator, whose debts have been established and above recorded, in the proportion as set opposite their respective names in the third column above recorded, that is to say, each to receive the amount set opposite their respective names in said third column, as the share of each on this distribution. No. 94. P. 579. PETITION OF A CREDITOR TO REQUIRE AN ADMINISTRATOR TO MORTGAGE, LEASE OR SELL THE REAL ESTATE OP THE DECEASED, FOR THE PAY- MENT OF HIS DEBTS. County of New Torlc, ) ■ Surrogate's Court. ) To Alexander "W. Bradford, Surrogate of the County of New York: The petition of 0. R., of the city of New Tork, merchant, respectfully showeft, that he is a creditor of D. S., late of the city of New Tork, deceased, intestate: That the said intestate died indebted to your petitioner in the sum of dollars and interest upon a promis- sory note made by him to your petitioner or order, dated the day of 185 and payable in ninety days after date ; That the said claim is justly due to your petitioner ; that no payments have been made thereon, and that there are no off-sets against the same to the knowledge of your petitioner, and that the same is not secured by judgment or mortgage upon or expressly charged on the real estate of the said deceased. . Tour petitioner further shows, that letters of administration of all and singular the goods, chattels and credits of the said D. S., deceased, were duly granted by the surrogate of the county of New York, to E. T., on the day of in the year 185 and that the same still remain in full force, as he is informed and believes : That your petitioner has pre- sented his said claim to the said administrator, and that the same has been admitted by him to be a vahd and subsisting claim against the said intestate. Your petitioner further shows, that on the day of last past, the said B. T. rendered to the surrogate an account of his proceedings as such administrator aforesaid, and which said account has been settled before the said surrogate, and that it appears from the said account, upon such settlement, that there are not sufficient assets to pay the debts of the said deceased. Tour petitioner further shows, that the said intestate died seised of the following described real estate, valued at the sums respectively affixed to each lot or parcel, and occupied or not occupied, as stated in respect to each of the said several lots or parcels ; that is to say: ORDER THAT ADMINISTRATOR SHOW CAUSE. Ixxi All that certain house and lot of land, situate, lying and being in the Eighth ward of the city of Ne-w York, and known as, &c. The value of this house and lot, in the judgment of your petitioner, is $8,000, The occupant of the same is W. &. Also, all those certain lots, pieces or parcels of ground, situate, &e. The value of these lota, in the judgment of your petitioner, is $800. They are not occupied. Tour petitioner further shows, that the heirs of the said D. S., deceased, are L. S., M. S. and N. S., all of full a^e, and all residing in the city of New York, his only children. Your petitioner further shows, that he is desu'ous that the said real estate of the said in- testate, or so much thereof as shall be necessary for that purpose, should be mortgaged, leased or sold for the payment of his debts. He therefore prays that the surrogate will grant an order for the said E. T., administrator as aforesaid, to show cause why he should not be required to mortgage, lease or sell the real estate of the said deceased, for the pay- ment of his debts, and that such further proceedings, acoording to law, may he thereupon had as may tend to the rehef of your petitioner, aid to the satisfaction of his claim aforesaid Qut of the said real estate of the said intestate. And your petitioner wUl ever pray, &c. Dated this day of A. D. 185 The usual jurat. No. 95. P. 580. ORDER THAT ADMINISTRATOR SHOW CATJSE, At, kc. (See No. 3,) , In THE Matter op thi; Application op C. R., A Ceeditoe of D. S., deceased, TO HAVE the Rbai, Estate oi' the SAID DECEASED MORTGAGED, LEASED OR Sold poe the Payment op his Debts. On reading and filing the petition of C. R., of the city of New York, merchant, a creditor of D. S., late of the said city, deceased, intestate, it is ordered, pursuant to the prayer of the said petition, that E. T., the administrator of all and singular the goods, chattels and credits of the "said D. S., deceased, personally be and appear before the surrogate of the county of New York, at his office in the city of New York, on the day of instant, at ten o'clock in the forenoon of that day, then and there to show cause why he should -^lot be re- quired to mortgage, lease or sell the real estate of the said D. S,, deoQased, for the payment of his debts. No. 96. P, 580. ORDER THAT PERSONS INTERESTED SHOW CATJSE. nUe. {See No. 95.) At, &c. (See No. 3.) An order having heretofore been duly made on the application of C. R., of the city of New York, merchant, a creditor of D. S., late of the said city, deceased, intestate, requiring E. T., the administrator of all and singular the goods, chattels and credits of the said intestate, per- sonally to be and appear before the surrogate of the county of New York, on this day, to show cause why he should not be required to mortg9,ge, lease or sell the real estate of the said deceased for the payment of his debts, and the said administrator having appeared, and having shown no cause to the contrary, it is ordered that all persons interested in the estate of the said D. S., deceased, intestate, appear before the surrogate of the county of New York, at his ofBce in the city of New York, on the day of next, at ten o'clock in the forenoon of that day, then and there to show cause why authority should not be given to the said administrator to mortgage, lease or sell so much of the rea,! estOite of the said D. S., de^ ceased, ^ shaill be necessary to pay l^is, debts. Ixx APPENBIX. No. 9t. P. 581. ORDER FOR SALE GRANTED ON THE APPLICATION OF A CREDITOR. Title. (See No. 95.) At, &c. (See No. 3.) An order having heretofore been duly made by the surrogate of the county of New York, on the application of C. R., of the city of New York, merchant, a creditor of D. S., late of the said city, deceased, intestate, requiring E. T., the administrator of all and singular the goods, chattels and credits of the said intestate, personally to be and appear before the surrogate of the county of New York, on the day of last past, to show cause why he should not be required to mortgage, lease or sell the real estate of the said D. S.,- deceased, for the payment of his debts, and the said administrator having appeared, and having shown no cause to the contrary ; and, thereupon, the said surrogate having made a further order, di- recting all persons interested in the estate.of the said D. S., deceased, to appear before him, at the surrogate's ofBoe in the city of New York, on this day, at ten o'clock in the forenoon, to Show cause why authority should not be given to the said administrator to mortgage, lease or sell so much of the real estate of the said D. S., deceased, as shall be necessary to pay his debts, and on reading and filing satisfactory proo^ by affidavit, of the due publication of the said order, and of the due service thereof on every person in the occupation of the premises of which a sale is desired, and on the widow and heirs of the said deceased, and the said administrator having this day appeared in person and by D. W., his proctor; and L. S., one of the heirs of the real estate in question, and the said C. R. having also appeared; and the proper proceedings in due form of law having been thereupon had, and the surro- gate, upon due examination, being satisfied that the said administrator has fuUy complied with the requisite provisions of the statutes concerning the powers and duties of executors and administrators^n relation to the sale and disposition of the real estate of their testator or intestate, that the debt of the said C. R., and other debts presented and proved before the said surrogate, and which the said surrogate has duly adjudged valid and subsisting against the estate of the said deceased, and for the purpose of satirfying which, application for the mortgage, lease or' sale of the real estate of the said deceased is made, are justly due and owing, and that they are not secured by judgment or mortgage upon or expressly charged on the real estate of the said deceased, and that the same amount to dollars and cents, exclusive of interest, and that the personal estate of the said deceased is insufficient for the payment of such debts ; and having satisfactory evidence that the said administrator has proceeded with reasonable diligence in converting the personal property of the said deceased into money, and applying the same to the payment of debts ; and hav- ing inquired and ascertained whether sufficient moneys for the payment of such debts afore- said can be raised by mortgaging or leasing the property of the said deceased, or any part thereof; and it appearing that the moneys required cannot be raised by mortgage or lease advantageously to the estate of the said deoe^ed, and the said E. T., administrator as afore- said, having executed a bond to the people of this state, with sufficient sureties, approved by the sa*d surrogate, in the penalty and with the condition prescribed by the statute in such case made and provided, which said bond is filed with the said surrogate, it is thereupon ordered, and the surrogate aforesaid, pursuant to the statutes aforesaid, doth order that the said E. T., administrator as aforesaid, sell the following described real estate whereof the said intestate died seised, to enable him to pay such debts aforesaid of the said intestate, that is to say. All that certain house and lot of land, &c. Also, all those' certain lots, pieces or parcels of ground, situate, &c. And it is further ordered and directed that the said administrator may give to the pur- chaser at such sale, of any of the said real estate, a credit not exceeding two years, for not more than one-half of the purchase money of such real estate purchased by him, to be se- cured by a bond of the said purch aser, and by a mortgage of the premises to him sold at the said sale. And it is further ordered that the said administrator do make return, according to law, of all sales made by virtue of ttiis order. In testimony whereof the surrogate, Ac. ALLEaATIONS AGAINST A "WILL. Ixxi No. 98. P. 594. ALLEGATIONS AGAINST A WILL. Cowdy of New York, ) SurrogaU's Court. ) To A. "W. B., Surrogate of the County of New York: The allegations of Henry Thompson, one of the next of kin to James Thompson, late of the city of New York, deceased, against the validity of the last will and testament of the said James Thompson, deceased, and against the competency of the proof thereof. First allegation. That the said James Thompson, at the time of the execution of the in- strument in, writing, purporting to be his last will and testament, was not competent to make a will. Second aUegation. That the instrument in writing aforesaid was not executed and at- tested in the manner prescribed by law for the execution and attestation of last wills and testaments. Third allegation. That the execution of the said instrument, by the said James Thomp- son, was obtained by fraud, imposition and coercion practiced upon the said James Thomp- son, by certain legatees and devisees named in the said instrument, or by some person or persons at their instance, and under and by their direction and contrivance ; and that the said James Thompson, at the time of the execution of the said instrument, was under the influence, duress and restraint of the said legatee^ and devisees. Fourth aUegaiion. That the testimony 'of the attesting witnesses to the said instrument was vague, indefinite and uncertain, and did not prove the due execution and attestation of the said instrument in the mode prescribd by law. Dated this day of A. D. 185 . Henry Thompson. B. P.., Proclor amd of Counsel for Benry Thompson. Allegations in the following form were filed in the New Tork Surrogate's Office, in an important case, under the direction of eminent counsel. In the Surrogate's Court for the County of New Tork. In the Matter of the Probate of a Pa- per Writing purporting to be the LAST Will and Testament op J. M , deceased, bearing Date the Twenty- sixth Day of September, one thou- sand EIGHT hundred AND THIRTY-NINE. J A paper writing, bearing date the twenty-sixth day of September, in the year one thou- sand eight hundred and thirty-nine, purporting to be the last will and testament of J. M., deceased, in and by which I. J., G. J. and A. G. H. are appointed executors thereof, and M. J. and E. J. are appointed executrixes thereof^ having been heretofore propounded be- •fore James Campbell, Esquire, then surrogate of the city and county of New Tork, as such last will and testament ; and having been by the said James Campbell, as such surrogate, at a Surrogate's Court held in and for the said county, on the twenty-first day of October now last past, admitted to probate ; and the undersigned, H. A., wife of the undersigned, J. A., being the daughter of said J. M., deceased, and one of his next of kin, we, the undersigned J. A. and H. his wife, pursuant to the statute in such case made and provided, do hereby contest the said probate and the vahdity of the said paper-writing, so purporting to be such last wiU and testament ; and for that purpose allege against the validity of such alleged .will, and against the competency of the proof thereof : First. They, the subscribers, allege that the said paper-writing is not the last wiU and testament of the said J. M., deceased. Secondly. They allege that the said J. M., deceased, was not, at the time of the making and subscribing, or of the acknowledging by him, the said J. M., of the said paper-writing, purporting to be his last will and testament of sound mind or memory, or in any re- spect capable of making a will. Thirdly. They allege that the said J. M., deceased, did not, at the time of making the subscription at the eniof said alleged will, or at the time of acknowledging the same subscription to have been made by him to the attesting witnesses to the said paper- litxii APJElfDlX. writing, deckre the said paper-writing to be the last will and testament of him, the Said J. M. - Fowihiy. They allege that the attesting witnesses to said alleged wHl did not, nor did either of them sign his name as a witness at the end of said alleged will, at the request of the said J. M. Fifthly . They allege that the said paper- writing, purporting to be such last will and testa- ment, was obtained, and the execution thereof by said J. M., procured by fraud and circumvention, and undue influence practiced against and upon the said J. M., by E. J., M. J., I. J. and Gr. J., or some or one or them, or some other person or persons unknown to the subseribers. SixMy. They allege that the said paper-writing was not freely and voluntarily executed or made as his last wiU and testament, by said Ji M., deceased, but that t^e subscrip* tion thereto and publication thereof by him, the said J. M , was procured by fraud and coercion exercised upon him-, the said J. M., deceased, by the said R., M., I. and &., or . some one of them, or some other person or persons to the subscribers unknowm Seventhly. They allege that the said paper-writing was not duly and sufficiently proved before the said James Campbell, as such surrogate, when so admitted to probate as aforesaid, and that the proofs taken at the said Surrogate's Court, on such admission thereof to probate, did not and do not show or estabhsh that the said J. M., deceased, was of sound mind or memory when the same alleged wiU was made, or that he was free from restraint when he made the same, or that tho same alleged will was subscribed by the said J. M., or declared by him^to be his last will and testament, in the manner required by the statute in that behalf or that the same was duly attested, as required by said statute. Oily and County of New Yorlc, ss. — J. Ay, one of the subscribers to the foregoing Allega- tions, being duly sworn, saith, that he has good reason, from circumstances, to believe, and that lie does verily believe, the matters stated and alleged in the preceding document to be true, and that the same document was subscribed by him, this deponent, and his wife H., Who is one of the next of kin of the above named -J. Mi, deceased* J. A. Sworn this 20th day of Ootob-er, 1840, ( before the, j W. H, B., Commissioner noon of that day, to show cause why the probate of the said last will and testament shoul* not be revoked. CITATION ON allegations: The People of the Stateof New York, to Philip Thompson, one of the executors who has taken upon himself the execution of the last will and testament of James Thompson, late of the city ol' New York, deceased, and to Cornelia Thompson, William Thompso*, Chatlea Thompson, and the Orphan Asylum Society of the city of New York, legatees named' in the said last will and testament, residing in the state of New York, send greeting r- ORDER RETOKING PROBATE, Ixxiii You and each of you, are hereby cited and required to appear before the surrogate of the county of New York, at hia office in the city of New Tork, on the first day of September next, at ten o'clock in the forenoon of that' day, to show, cause why the probate of the said last will and testament of James Thompson, deceased, should not be revoked. In testimony whereof, we have caused, &0i (The forms for the examination of witnesses are similar to those on proving wills. See Ap- 'Jic, p. .) No. 100. P. 595. ORDER REVOKING PROBATE. At, &c. {See No. 3.) In the Matter of the Allegations of Hbn- Ht Thompson, against the Validity of the Will of James Thompson, deceased, and the oompetenoy of the proof thereof. This matter having come on to be heard on the allegations of Itenry Tliompson, one of the next of kin to James Thompson, late of the city of New Tork, deceased, against the validity of the last will and testament of the said James Thompson, deceased, and against the competency of the proof thereof, and on the return of the citation heretofore issued therein, requiring Philip Thompson, the executor who has taken upon himself the execu- tion of the said last will and testament, and Cornelia Thompson, William Thompson, Charles Thompson and the Orphan Asylum Society of the city of New York, legatees named in the said last will and testament, residing in the state ot New York, to appear m this court on the day of last past, to show cause why the probate of the said last will and testament of James Thompson, deceased, should not be revoked, and due proof of the personal service of the said citation on all the persons and parties named therein having been produced and filed, and Henry Thompison, one of the next of kin of the said James Thompson, deceased, and who filed the allegations herein, having appeared by R. P., their proctor and counsel, in support of the said allegations, and the said Philip Thompson, the executor as aforesaid, and the said William Thompson, having appeared by C. C, his proc- tor and counsel, in opposition thereto, and tlie said, the Orphan Asylum Society of the city of I^ew York, having appeared by A. D., their proctor and counsel, also in opposition thereto, and I. H., the special guardian of Charles Thompson, one of the said lega-' tees, a minor, having duly appeared 'in behalf of the said minor, and no other pirson or party having appeared in tlie said matter, and the said matter having been heard on several days, and duly adjourned to tliis day, and upon hearing the proofs of the parties aforesaid, and counsel for them respectively-, and due deliberation being thereupon had, it is adjudged,- decided and decreed, and the surrogate of the county of New York, by virtue of the power and authority in him vested, [*] doth adjudge, decide and decree, that the said James Thompson, at tlie time he executed the instrument, bearing date the eighth day of January, in the year 1840, purporting to be his last will and testament, was not of sound mind, nor competent to execute a will, and that the said instrument was not duly executed as and tor the last will and testament of the said James Thompson, deceased ; and it is further adjudged, decreed and declared, and the surrogate aforesaid, by virtue of the power and authority aforesaid, doth adjudge, decree and declare, that the said instrument in writing is utterly null and void as or for the said last will arid testament of the said James Thompson, deceased. And the said surrogate doth further order and decree, that the probate of the s^id last will and testament heretofore granted and issued by and under the seal of the surrogate of the county of New York, and bearing date on the day of in the year one thousand eight hundred and fifty-four, be, and the same is hereby revoked, and that the coats of all the parlies to this proceeding, and the fees and expenses thereof, bo paid out of the estate of the said deceased. In testimony whereof, the aurrogate of the county of New York hath hereunto fixed his seal, &c. No. 101. P. 595. ORDER CONFIRMING PROBATE AND DISMISSING ALLEGATIONS. [As in last form to the [*] and then proceed:] doth order, adjudge and decree, that the said laat will and testament of James Thompson, deceased, and the probate thereof be, Ixxiv APPENDIX. and the same hereby are confirmed, and that the said allegations of the said Henry Thompson be dismissed : And it is further ordered, and the surrogate, pursuant to the statute in such case made and provided, djoth further order, that the said Henry Thompson pay the surrogate's fees and expenses on these proceedings, or in default tliereof that an attachment issue against him. FORMS FOR No. 102. p. 595. 'ROCEEDINGS TO ENFORCE PAYMENT OF FEES AND EXPENSES OR COSTS. Surrogate's Oourt, } Cownty of New -York, J In the Matter, &c., \as in No. 99.] Oity and County of Sew York, as. — H. F. L., of the city of New Yorlc, being duly sworn, doth depose and say, that on the day of instant, he served H. T. witli a copy of the order and decree of the surrogate of the county of New Torlc, made in this matter, dated the day of which is hereunto annexed, and with a copy of the bill of the surrogate's feea and expenses, required by the said order to be paid by the said H. T., and at the same timje exhibited to the said H. T. a power of attorney duly executed, indorsed upon the copy of the said order hereto annexed, authorizing and empowering this deponent to demand and.'reeeive the sum of dollars, the amount of the said bill of fees and ex- penses, which ^rvice was made by delivering the copy of the said order and bill of fees and expenses, and exhibiting the said power of attorney to the said H. T. personally; and this deponent furtljer says, that he thereupon demanded of the said H. T. payment of the said sum of dollars, fees and expenses aforesaid, on behalf of and the said H. T. ■wholly refused to pay the same. Sworn, Ad [When the payment of the costs is to be enforced, annex the affidavit of the person enti- tled to receive such coats that he has not received the same.] - POWER OF ATTORNEY INDORSED UPON THE ORDER. I hereby authorize and empower H. F. L., of the city of New York, clerk, to demand and receive of H. T., named in the within order, the sum of dollars, being the amount of the surrogate's fees and expenses required by the said order, to be paid by tlie said H. T., according to the annexed bill of the same, and his 'receipt shall be a full discharge to the said H. T. for the amount of the said bill. ORDER FOR ATTACHMENT. mie. {See No. 99.) At,&c. (See No. 3.) On reading and filing the affidavit of H. F. L., with certain papers thereto annexed, pro- ving the due and personal service on H. T. of a copy of the order made in this matter, on the day of last past, dispDissing the allegations heretofore filed in the office of the surrogate of the county of New York, by the said H. T., against the validity of the will of James Thompson, late of the city of New York, deceased, and against the competency of the proof thereof, and confirming the probate of the said will, and ordering the said H. T. to pay the surrogate's fees and expenses on the said allegations, or in default thereof, that an at- tachmont issue against him ; and proving also a demand of payment of the sum of dollars, the amount of the said fees and expenses, and the refusal of the said H. T. to pay the same ; thereupon it is ordered, that an attachment issue out of and under the seal of this court, to be directed to the sheriff of the city and county of New York, commanding him to arrest the said H T., and to bring him before the surrogate of the county of New York, at his office in the city of New York, on Monday, the day of instant, to answer for his misconduct in not paying the said fees and expenses. And it is further ordered and directed, that the penalty in which the said H. T. shall give bon. 350 CO Two hundred and forty shares of stock in the Mohawk Bank, worth at par , value, , , 1,200 00 Two shares Albany and Bern Turnpike stock, par value $1,000, but actually worth only about 300 00 A bond of G. Lord and mortgage for $800 on unincumbered real estate, which is well secured, with interest at 7 per cent. Int. due from 7th March, 1842', 800 00 S. Drake's bond and mortgage for $910, on unincumbered real estate, with in- terest at 7 per cent. Int. due from 27th July, 1842, 910 00 J. Field's bond and mortgage for $700, well secured on unincumbered real es- tate, with interest at 7 per cent. Interest due from 19th August, 1842, 700 00 Balance of a legacy left to infant by John Miller, deceased, 250 00 A cultivated farm in the town of Charlton, in the county of Saratoga, containing 110 acres. In good repair, under a lease for one year, from 1st May, 1842, at an annual rent of $7 0, worth about ' 1,300 00 A dwelling-house and lot of ground on Genesee street, in the city of Utica, di- mensions of lot, 200 feet in depth and 28 feet in width, under a lease for one year from 1st May, 1842, at an annual rent of $180, payable quarter-yearly, worth about. 3,000 00 Estimated value of real and personal estate, $8,726 74 J. K, Chmrdim. ACCOUNT CURRENT. The estate of A. B., a Minor, To 3. K., Guardian. 1852. Dr. May 2. To cash paid M Low's bill for board and lodging, &o $27 33 June ' 4. Dr. Jones' bill for medical attendance, 9 1' July 9. L Fox's bill for tuition, 13 21 July 16. P. Storm in full for mortgage on. farm, 5,000 00 Aug. 19. Cash loaned on mortgage to A. B., •. 839 08 Aug. 11. S. Marks' bill, books and stationery, 17 36 Sept. 17. Collector, for taxes on dwelling-house and lot in Utica, 19 22 " 29. G. Bull's bill for repairing dwelling-house in Utica, 43 19 Oct. 1 2. S. Rider, repairing barn in town of Charlton, 62 40 " 20. Postage on letter from A. B., 25 Nov. 6. D. Gray's bill for merchandise, 33 29 " 18. "Wm. Lott'a bill for board and lodging ' *6 67 Nov. 21. S. Newland'a bill for lumber, used in repairing house and barn, 15 44 Deo. 31. Loaned Robert Gay, on his bond and mortgage on farm, 350 00 " " Commissions for receiving moneys since last annual account, exclu- sive of capital received from previous investments, 2 1-2 per cent. on. $1,000 26 00 1 1-4 per cent, on " 4,000 50 00 1-2 " " " 1,553 98 7 77 Carried forward, $6,539 38 GUARDIAN'S INTENTORY AND ACCOUNT. Ixxxv Brought forward $6,539 38 Dec. 31. Oommissiona for moneys paid out, exoluaiTO of investments and re-investments. •2 1-2 per cent, on $1,000 50 00 114 " " " 4,000 25 00 1-2 " " " 6314 3 18 " " Balance due thaestate, 16 I* $6,634 80 1842. Gcmira. Or. Jan. 1. Balance due as by la.st annual account, $27 32 Feb. 2. Cash received, one quarter's rent on dwelling-house In Utica, 45 00 Mar. 7. One year's interest on G- Lord's bond and mortgage, 56 00 Apr. 15. Dividend on Moiiawlj Banlt stock 73 50 May 3. One year's rent on farm in town of Charlton,. 59 00 " 8. One quarter's rent on house in Utica 45 00 June 12. L. Kerr's note, principal, $73 00 Int. 1 year, 3 months, 15 days, 6 59 79 59 July 27. One year's interest on S. Drake's bond and mortgage, 43 70 Aug. 4. One quarter's rent on dwelling-house in Utica, 45 00 " 19. One year's interest on J. Field's bond and mortgage, 42 00 " " Cash' for timber sold J. Peters 6,000 00 Sep. 27. Part of the amount of legacy to infant by John Miller's will 50 00 Dot. 13. Amount of G. Lord's note, given for balance of last year's interest on his mortgage, including interest on note 23 19 Nov. 13. One quarter's rent on house in Utica, 45 00 Albany, Dee. 31st, 1842. $6,634 30 J. K, Guardiwn. Albcmy County, ss. — J. K., the guardian of the above named minor, being duly sworn, doth depose and say, that the above is a just and true inventory of the whole real and per- sonal estate andeffects of the above named minor, so far as the same have come to his knowledge, and a just and true account of his guardianship, and of the amount of property received by and remaining in his hands, or invested by him on account of the said minor, and of the manner and nature of such investment, and also of his expenditures on account of the said minor and his estate, since this deponent rendered his last account current, in this matter, to this court. [In the first account these last words in italics are to be left out.] J. K. Sworn to to this 1 st day of January, ) 1843, before me, j L. M., Surrogate. Note. — If the same person is guardian for two or more minors, there must be an inven- tory of the property of each ; or the part thereof belonging to each, if it is joint property, must be stated. And the accounts of the receipts and expenditures on account of each minor, or of his estate, must be kept separately ; and each is to be charged with his pro- portionate share for any services or expenditures for their joint benefit. . The following is a form of a deposition on proving a wiU adapted to two or more attesting witnesses. The writer was not aware that such were in use until the printing of this appen- dix had been nearly completed. Cowniy of Sa/ratoga, ) Surrogate's Gov/rt. ) Itf THE Matter op Proving the Last "Will AND Testament , OP J. B., DECEASED. Saratoga County, ss. J. M. K. and J. D., both of the city of New York, being first duly sworn in open, court on their oaths do depose and say, that they are subscribing witnesses to the last wiU and tea- Ixxxvi APPENDIX tament of J. R., late of the town of , in.the covmty of Saratoga^ aforesaid, de- ceased. And these deponents further say, that the said deceased did, in the presence of these deponents, subscribe his name at the end of the instrument which is now shown to these deponents, and which purports to be the last will and testament of the said deceased, and which bears date on the day of , in the year one thousand eight hundred and fifty- five ; that the said deceased did, at the time of subscribing his name to said instrument as afore- said, declare the same to be his last will and testament; that these deponents did thereupon subscribe their own names at the end of said instrument as attesting witnesses to the execu- tion thereof at the request of the said deceased, and in his presence, and in the presence of each other. That the said deceased, at the time of subscribing his name to said instrument as aforesaid, was upwards of twenty-one years, of age ; that he appeared to be of sound mind and memory, and was not under restraint to the knowledge or belief of these deponents. J. M. E. J. D. Subscribed and sworn this 11th day of ) July, 1855, before me, f John. 0, Htjlbut, Swrogaie. AK ACT Respecting the fees of suEROGATteS. Passed Mat 1, 1844. (S. L. 1844, 445 ; 2 R. S. 4th ed. 829. See p. 606.) The People of the State of New Yor'k, represented in Senate and Assembly, do enact as follows ! See. 1. Section thirty -two of title three of chapter ten of part third of the Revised Statutes ia hereby repealed. Sec. 2. For the following services,. hereafter done or performed by surrogates, the follow-' ing fees shall be allowed, nor shall they be entitled to receive any other fees therefor : Drawing proof of a will when contested, or any other 'proceeding before him, for which no specific compensation is provided, fifteen cents for every folio. Drawing every petition in any proceeding before him, not otherwise provided for, inclu- ding the affidavit of the truth of the facts stated therein, fifty cents. ' Every certificate of the proof of a will) when contested, indorsed thereon, including the seal, fifty cents; and for any certificate upon exemplifications of records or papers filed in his office, or upon the papers transmitted upon appeal, including the seal, fifty cents. Drawing, copying and approving of every bond required by law, fifty cents. Drawing, copying and recording every necessary paper, and drawing and entering every necessary order, and for rendering every other service necessary to complete proceedings oil the appointment of a gen*al guardian of a minor, three dollars ; and for the lilie services in appointing the same person guardian for any other minor of the same family, at the same time, one dollar and fifty cents. Drawing, entering and filing a renunciation, in cases Where 'the same may be made by law, twenty-five cents. A citation or summons, in eases not otherwise provided for, to all parties in tlie satne pro- ceeding, residing in any one county, including the seal, fifty cents ; and for a citation to all parties in any other county, twenty-five cents. A subpoena for all witnesses in the same proceeding, residing in one county, including the seal, twenty-five cents. For every copy of a citation and subpoena, furnished by a surrogate, twelve and a half cents, and every such copy of citation shall be signed by the surrogate. A warrant of commitment or attachment, including the seal, fifty cents. A discharge of any person committed, including the seal, fifty cents. For drawing and taking every necessary affidavit, upon the return of an inventory, fifty cents. For serving notice of any revocation, or other order or proceeding required by law to be served, twenty-five cents. For swearing each witness, in cases where a gross sum is not allowed, twelve and one half cents. For searching the records of his office for any one year, twelve and one-half cents ; and for every additional year, six cents ; but no more than twenty-five cents shall be charged or ' received for any one search. Recording every will, with the proof thereof, letters testamentary, letters of administra- tion, report of commissioners for the admeasurement of dower, and every other proceeding required by law to bo recorded, including the certificate, if any, at the foot of the recondi when the recording is not specifically provided for in this act, ten cents for every folio. For the translation of any will from any other than 'the English latiguage, ten cents' for every folio. Copies and exemplifications of any record, proceeding or order had or made before him, or IxxXTlii 'FE'ES OF STJEROGATES. of any papers filed in his office, transmitted on an appeal, or furnished to any party on his request, six cents for every folio, to be paid by the person requesting them. For making, drawing, entering and recording every order for the sale of real estate, and every final order or decree on the final settlement of accounts, one dollar and fifty cents; and for the confirmation of the sale of real estate, seventy-five cents ; and for making, draw- ing, entering and recording any other order or decree, when the same is not otherwise pro- vided for, tweuty-five cents. Hearing and determining, when the proof of a will, or the right to administration, or ap- pointing a guardian, is contested, two dollars. Taking, stating and determining upon an account rendered upon a final settlement, or de- termining and deciding the distribution of personal estate, if contested, two dollars for each day necessarily spent therein, not exceeding three days. For hearing and determining any objections to the- appointment of an executor or admin- istrator, or any application for his removal, or for the removal of any guardian, or any appli- cation to annul the probate of a will, two dollars. For hearing and determining upon an application to lease, mortgage or sell real estate, two dollars. For drawing and recording all necessary papers, and drawing and entering all necessary orders on applications for letters of administration, when not contested, and for all services necessary to complete the appointment of administrators, and for the appointment of ap- praisers, five dollars ; but in cases where a citation is necessary, seventy-five cents in addi- tion. For investing, for the benefit of any minor, any legacies, or the distributive shares of the estate of any deceased person, in the stocks of this state or of the United States, one per cent, for a sum not exceeding two hundred dollars ; and for any excess, one-quarter of one per cent. ; for investing the same on bond and mortgage of real estate, one-half of one per cent., for a sum not exceeding two hundred dollars, and one-quarter of one per cent, for any excess. For receiving the interest on such investments, and paying over the same for the support and education of such minor, one-half of one per cent. Appointing a guardian to defend any infant who shall be a party to any proceeding, fifty cents ; but where there is more tlian one minor of the same family, and the same guardian is appointed for all, twenty-five cents for each additional minor; and no greater or other fee shall be charged for any service in relation to such appointment. Hearing and determining upon the report of commissioners for the admeasurement of dow- er, one dollar. For distributing any moneys brought into his office on the salfe of real estate, two per cent. ; but such commission shall not in any case exceed twenty dollars for distributing the whole money raised by such sale, and no executors or other persons, authorized to sell any real estate, by order of any surrogate, shall be allowed any commission for receiving or pay- ing to the surrogate the proceeds of such sale ; but shall be allowed their expenses in con- ducting such sale, including two dollars for every deed prepared and executed by them thereon, and a compensation not exceeding two dollars a day for the time necessarily occu- pied in such sale. • But no fee shall be taken by any surrogate, in any case, when it shall appear to him, by the oath of the party applying for letters testamentary or of administration, that the goods, chattels and credits do not exceed the value of fifty dollars, nor shall he take any fee for copying any paper drawn by him or filed in his office, except as above provided. For drawing and recording all necessary petitions, depositions, affidavits, citations and other papers, and for drawing and entering all necessary orders and decrees, administering oaths, appointing guardians ad litem, and appointing appraisers, and for rendering every other necessary service, in cases of proof of will and issuing letters testamentary, when not contested, and the will does not exceed fifteen folios, surrogates shall receive twelve dollars ; and where the will exceeds fifteen folios, ten cents per folio for recording such excess, and six cents per folio for the copy of such excess to be annexed to the letters testamentary. For all fees, on filing the annual account of any guardian, when the surrogate shall draw^ and take tlie affidavit of the guardian, and for examining such accountSj filty cents; but when the same shall not be drawn nor taken by him, he shall charge no fees. No charge shall be made for drawing, copying or recording his bill of fees in any case. (2 R. S. 4th ed. 831.) Sec. 3. The fee for filing any paper in the surrogate's office is abolished. (S. L. 1844, 448; 2 R. S. (4lh ed.) 831. "fhe remaining sections of this act will be found in the first chapter of this work — the same relat.ng to the subjects of that chapter. (See p. 40.) O D E X. ABATEMENT. action does not abate by death of party, if cause of action survive or continue, 210, 314. by death or removal of executor or adminiatrator, 274. by death of defendant, 314. of legacy, 404, 409, 411. general legatees must abate before specific, 409. but a residuary legatee cannot call on them to abate, 409. priority among general legatees.of purchasers above volunteers, 410, 411. un^er the provisions of the Revised Statutes in favor of post testamentary children, 410. no exemption on account of being applied to particular purpose, 410. legacies given for specific purposes, abate among themselves ratably, 410. legacy for piety does not abate, 410. of specific legacies, 411. of legacies in the nature of specific legacies, 411. ACCOUNTING BY EXECUTORS AND ADMINISTRATORS IN THE SURRO- GATE'S COURT. surrogate, upon accounting, may give preference to charge for rent paid on lease, 28&. when executors or administrators may be required to account, 445, 446. on whose application account may be required, 446, 451, 452, 454, 451, petition for account, 452, 454. order to account, 446. citation to account, 45^-5 citation to show cause, 457, n. (m). service of order, 446, 454, 455. proceedings on return of order, 455, 460, etseq. obedience to, how to be enforced, 447, 455. proceedings against absent or non-resident executors or administrators, 447. account, 446, 459. form of, 459, 471. vouchers, 446, 459, 474. executor's oath to account, 460, 472. proceedings on the accounting, 460, 464. examination of executor under oath, 447, 462. Final Settlement or the Accounts of Executors and Administeatoes, where executor has already been ordered to account, 448, 463. where no proceeding has been talien against him, 450, 463. petition for final settlement, 464, 466. issuing and service of citation for final settlement, 448, 449, 466, 468. proceedings on return of citation, 468. proceedings as to infant parties, 469. adjournment of the accounting, 470. proceedings on the accounting, 471, form of the account, 471. XC I If D E X . ACCOUNTING BT BXfiCUTORS AND ADMINISTRATORS, MO.—amHnaed, oath to account on final settlement, 472. of contesting the account, 4'!2-i76. adverse party required to state objections in writing, 472, 473i charges which may be preferred, 474. comparing account and vouchers, 473. adjournment of proceedings, 473i executor bound to bring proof as to items objected to only, 474i bound to produce his receipts and vouchers, 474. burthen of Impeaching payments on party objecting, 474, 475. witnesses may be examined, 475. testimony of foreign witnesses may be taken by commission, 475, of referring to an auditor, 476-7i proceedings on reference, 449, 466, 7. report, 477. confirmation of, 477. tiABiLiTT OF AN EXEonTOE, 477 etseq. See titles Executors and Administrators. Devastavit. debts due to the executor, 478. See title Executors and Administrators. allowance for property perished or lost, 447, 478, et seq. See titles Executors and Administrators, liability of. Devastavit. Accounts bf Executors and Administrators. Allowances. Accountability foe Investments, 482 et seq. ' See titles Executors and Administrators, liability ofx Investments by Execu- tors and Administrators. accountability for increase or decrease of the estate, 447, 448, 486 etseq. See titles Accounts of Executors and Administrators. AUou!ances> liability for interest, 488-492. See title interest. allowance of executors' commissions, 448, 462-498. See titles Allowances. Commissions. allowance of executors' expenses, 447, 498-500. See titles Accounts of Executors and Administrators. Allowances. IEffect of the Final Settlement, 500-523. facts of which final settlement and allowance of account to be deemed conclusive, 449, 500 et seq. extent and sufficiency of protection to executor or administrator afforded by, 501. accounting, how far final, 502, 3. of executors, as trustees, 504, surrogate's jurisdiction to decree payment and distribution of .property not paid or distributed, and to settle and determine questions concerning any debt, claim, legacy, &e., 504 et seq. claims between the executor and the estate, 504, 505. claims between several executors, 505, 606. as respects personal representations of deceased executor, 506. in respect to claim due surviving partner, 505. to charge executor with value of premises of the estate sold to himself, 506. to determine validity of an alleged Donatia mortis causa, 506. to determine the Validity and amount of a claim brought by a creditor against the ex- ecutor or administrator, 507-522. where creditor has security for his debt upon another fund, 523. where there is a specific lien on the land devised, 523. disposition of property still in executor's hands, and of securities not yet due, 450, 523, 525. surrogate, on consent of parties, may direct delivery of property bot sold, 450. value to be ascertained by appraisement, 450, 523. assignment of securities still in executor's hands, 450, 523. suing and recovering on securities, 451, 523. retaining for claims not yet due, or on which suks.pending, 45], 524. when surrogate may allow executor to retain tor debt not due, 524. distribution under the statute, 525, 537. See title Distribution. when the deceased, at the time of his death, was domiciled abroad, 537, 539. See title Non-Inhabitant. INDEX. xci ACCOUNTING- BT EXECUTOES AND ADMINISTRATORS, ETC.— conimwd. FmAL Settlement, etc — ccmtinued. disposition of personal property, under will of person dying domiciled abroad, 639. See title Non- Inhabitant. disposition of personal property of intestate married woman, 540, 642. See titles Distribution. Embamd and Wife. securing the distributive shares of minors, 527, 542. form of decree of surrogate, on final settlement of account of executor or administra- tor, 542, -544. recitals in, 542. , decree for settlement, 542. distribution, 543. • where accounting has been at instance of a single party, 644. costs of the accounting, 543. enforcing surrogate's decree upon, 544, 649. See titles Surrogates. Executors and Administrators. by action at law, 544. complaint, 544. when by attachment, 544. when surrogate may cause bond to be prosecuted, 54S, 546. certificate of decree for payment of money, 545, 547. execution upon, 645, 547. if execution returned unsatisfied, surrogate to assign bond, 645, 647. judgment on bond, 648. jurisdiction of Courts of Equity, in relation to accounts of executors and adminis- trators, 549, 561. ACCOUNTS OP EXECUTORS AND ADMINISTRATORS, surrogates have power to settle, 19, 445 et seq. formerly required to record accounts ol^ 26. now required to file accounts of, and record with decree summary statement of, 26, 450. where married woman executrix, and husband partner of testator, husband bound to render co-partnership account, 197. form 0^ 459, 471. executor or administrator not to be charged, unless goods come to their hands, 478. goods taken from his possession not to be charged with, unless in fault, 479. goods perishing, 479. cattle dying, 479. choses in action not to be charged with, until he has received the money, 479. will be regarded as assets, if they be released by executor, 480. if rele^e appear to have been for the benefit of estate, it is an excuse, 480. he shall account for all profits, 447, 448, 486 et seq. sheep or cattle born after death of decedent, 486. profits of a lease, 486. of the trade of testator, 486. on sale of share of partnership, 486, 487. profits of a sale, kc, to himself, 487, 506. of compounding debts or mortgages, 487. of the purchase of the equity of redemption of an estate in mortgage to the testator, 487. of laying out assets in private securities, 488. in what cases charged with interest, 488, 492. how computed, 492. to be allowed all reasonable expenses, 447, 498, 600. what are reasonable expenses, 498, 499. when he may have recourse to agent, 498. traveling expenses, 498. if he drive his own horse, 498. accountant, 498. attorney's bills, 498. legal advice, 499. costs and expenses of a suit, though unsuccessful, 499. , where he unsuccessfully resists an application to compel him to account, 499. counsel fee on preparing his accounts not to be allowed, 499. jurisdiction of Courts of Equity with.respect to, 649, 661. 47 xcii INDEX, ACCOUNTS OF GTTARDTANS, surrogates have power to settle, 19. formerly required to record accounts of, 26, now required to file ancounts of, and record with decree, summary statement o^ 26, rendering and settling of, 637-641. ACCtJMtJLA.TION, directions for, prohibited beyond limit specified, 366. ACKNOWLEDGMENT of subscription to will by testator, SS-'Zl etseq. See title Vf^ill, Form and Mcmner of making. of bonds taken by surrogates, 22^. ACTION, foreign executor cannot bring in this state without taking out letters here, 204. may collect bond held in his own right without letters here, 205. assignee of chose in action may sue in his own name without probate, where suit may be brought on the claim in name of assignee, 205. what rights of action pass to an executor or administrator, 264, et seq. how far executor represents testator in his contracts, 264. actions an executor or administrator, may bring, 264. joint chosesin action, 275. ancient rules — actio personalis moretur cv/mpersona, 265. alterations of the rule, 265. forms of action abolished by the Code, 265. actions for torts to the person do not survive, 265. action against any person causing the death of the testator or intestate by wilful act, neglect, or default, 266. in action by executors or administrators, those only to be joined as plaintiffe to whom letters testamentary have been issued, 266. action for rent due at death of decedent, 266. action for rent due deceased as tenant for life, 266. action on agreement in a lease, 266, 267. action oq covenants in a lease, 267. action on promissory note made to executor or administrator in his representative character, 267. action for cause of action accruing after decedent's death, 267. under the Code, profert of letters not necessary, 267. limitation of actions in favor of estates of deceased persons, 270-272. See title Limitaiion of Actions. action not to abate by death, where cause of action survives, 270. enforcement of judgments obtaioed by deceased in his Hfetirae, 272,•274^ commenced by executor or administrator who dies or is removed, to be continued by co-executor or administrator, or if none, then by person succeeding executor or ad' ministrator, 274. set-offs in actions by executors or administrators, 274. See title Set-offs. view to a legacy, 305, on continuing guarantee of testator, 305. upon promissory notes or bills of exchange due after death of decedentf 306, 306, action against deceased, pending at his death, does not abate if cause of action sur- vive, 314. proceedings under Code to continue action, 314, 315. upon decree of surrogate may be brought against executor or administrator, 347. upon bond given by executor or administrator, 545, 547, 548. instances where executor or administrator, although he has an interest in a chose in action, cannot bring an action, 275. executor of one of two or more joint obligees, covenantees, or partners, 275, 276i where an executor of last survivor sues, 276. otherwise where the interest is several, 276, executor of joint tetiant of injured property, 276. provisions of the Code of Procedure, 276. what rights of action survive against an executor or administrator, 290-^06i See title Uxecutors and Administrators. in matters of contract, 290. • though not named, 290. I N D E -X • xciii ACTION — contirmed. What Eights of Action Suevtve against an Bxecutoe, etc. — conUnued. In Matibes of Contract — continued. aoeruing after testator's death, 290. where contract was personal to testator, 290. in matters of tort, 291 etseq. rule — auMo personalis moretwr cum persona, 291. examples of the rule, 291, 292. modification of the rule by statute, 292. on joint contracts, 293-300. liability of executor in equity, 293. law previous to Code of Procedure, 293, 294. executor of deceased partner, 295. cannot be sued jointly with surviving partner, 297, 298, n. {kV). on covenants, 299. concerning the realty, 299, 300. on contracts between landlord and tenant, 300-302. personal liability of executor for rent in his own time, 300, 301. where personally liable, and a non-resident, maybe proceeded against by attachment, &c., 302. for money due on purchase of real estate, 302. as to apprentices, 304. as to debts of husband and wife, 304, 305. as to an action for work and labor with a view to a legacy, 305. on continuing guarantee of testator, 305. upon promissory notes or bills of exchange due after death of decedent, 305, 306. action against deceased pending at his death does not abate if cause of action sur- vive, 314.. proceedings under Code to continue action, 314, 315. upon decree of surrogate may be brought against executor or administra- tor, 347. upon bond given by executor or administrator, 545, 54T, 548. ADEMPTION, when a revocation of will, 123, 131, 132, 133. ADEMPTION 01? LEGACIES, of specific legacies, 399, 400. to complete titlo of specific legatee, thing bequeathed must remain in specie at the testator's death, 399. where testator sells or disposes of subject of legacy adeemed, 399. of gold chain, bale of wool, or piece of cloth, 399. of a debt,400. partial receipt of, ademption pro tanto, 400. no distinction between compulsory and voluntary payment, 401. of stocit, 401. where exchanged by act of law, no ademption, 401. of goods, 401, not by pawning, 401. conveyance or other abt by which interest ia property previously bequeathed, altere d but not wholly divested, 123, 131, 135, 400. where provisions of instrument wholly inconsistent with previous bequest, 123,. 131, 135, 402. of demonstrative legacies, 400. rule of ademption does not apply to, 400. ADJOURNMENTS. surrogate may adjourn proceedings pending before him, 23.. ADMINISTRATION, Colonial governor granted letters of, before revolution, 3. letters ot^ — See title Letters Testarrumtary or of Administration. in matters relating to, course of proceeding in Surrogate's Court, 140. sHas of personal property regulates jurisdiction as to, 177. of goods of non-inhabitant, dying leaving assets in this state, 206. Gbant or Lbtteks of, in what Surrogates Court letters of, shall be obtained, 208. See title Letters of Administration. xoiv INDEX. ADMINISTRATION— coMfcwed. Grant of Letters of — conUnued. to whom general administratioii is to be granted, 209 ei seq. to the widow, if any, 209, 216. children, 209, 211, 215. grandchildren and descendants, 209, 215. if no widow or 'descendants, to the father, 209, 216. if no widow, descendant or father, then to brothers, 209, 216, 216. sisters, 209, 216. to any other of the next of kin entitled to share in distribution, 209, 212 to 21Y. where person entitled is a minor, his guardian to have letters in his right, 209, 211, 225, 226. where appointment of guardian invalid, appointment of same person administrator erroneous also, 226, 630. , if no relative or guardian will accept administration, then creditor entitled, 209. creditor first applying to have preference, 209, 210. if no creditor apply, then any other person legally competent entitled, 210. except in the city of New York, where public administrator entitled next after next of kin, 210, and in all the other counties, county treasurer entitled next after creditors, 210. ■widow's right to be husband's administratrix, 209, 216, right of next of kin, 209, 211, 217. See title Next of Kin. who are next of kin, 211, 217. to be entitled to share in distribution requisite to entitle to administration, 211, 216. T^lations by mother's side, equally entitled with those of father's, 214. half-blood not excluded, 210, 214. whole blood preferred, 214. males preferred to females where several persons entitled, 210. several persons equally entitled, surrogate to grant to one or more in his discre- tion, 210, 217. discretion to be exercised in subservience to same rule, 217. court will, things being equal, put administration into the hands of nominee of majority in interest, 217. will consider moral fitness, 217. ■next of kin excluded where they have no interest, 211, 216. entitled, dying after intestate, right to administration dies with hira, 217, his personal representatives have no claim, 217. 'husband's right to be his wife's administrator; 2.09, 210, 217. act for the more effectual protection of the property ot married women, does not repeal or affect the husband's right to administration of his wife's property where she dies intestate, 217, 218. assets of wife, remaining unadministered by husband at his death, go to his personal representatives, 219. liable to her debts, 219. where husband and wife are drowned in same ship, 219. of the goods, Ac, of a foreigner or non-inhabitant, 210, 219, 220. grant goes according to the law of his country, 219, 220. if domiciled In a foreign country, or another State, administration must be taken here, as well as there, 220. of the goods, &c., of an illegitimate, 210. where no child, descendant, or widow, mether; and, if she be dead, relatives on part of mother, entitled, 210. may be granted, jointly, to one or more competent persons, although not entitled to same, by consent of person entitled, 211, 224. person not entitled cannot be joined without, or against, consent of person enti- tled, 224. consent to be in writing, 211, 221. persons to whom letters of, pay not be granted, 210, 211, 221. See title Administrator. where there are conflicting claims to, surrogate hears the testimony, 226. oath of administrator, 227. form ofletters, 227. "With the Will annexed. where minor entitled to, to be granted to his guardian, 211, 226, 226. INDEX. XCV ADMmiSTRATTON— confc«ed With the "Will aknexbe — continued, person not entitled to, may be joined with person entitled, on consent of latter, 211, 224. where there are persons having right to, prior -to person applying, 222, 233, 224. person obtaining letters of, to give bond, 223, 229. such bond is required as well of a residuary principal, or specific legatee, as of the widow, or next of kin, or creditor, 229. in what cases, and when to be issued, 22T, 228. order in which persons entitled to, 227, 228. proceedings on obtaining, 229. In case of foreign will, usage to grant administration with will annexed to attorney in fact of foreign executor, 230. grant regulated by law of place where assets situated, 230. form of letters, 230. rights, powers, and duties of administrators with will annexed, 230. See title Adminisirator with the WiU annexed. DE BONIS NON-. in what cases, and when to be issued, 227, 228. form of letters, 230. SPECIAL, authorized by the Statute, the only limited or temporary administrations,. 231-2. limited to a particular object, nowhere expressly authorized,- 232. of the control over the estate before administration granted, 232 etseq. See title Executors amd Administrators. ADMINISTRATOR, office of, 1, 3. power of— equal to and with that of an executor, 236. survives to his companion, if administration granted to more than one. See title Executor. duties of — as to making and filing an inventory, 243 etseq. first duty of, to make and file an inventory, 243. ' See title Inventory. as to distribution under the Statute, see title Distribution.. as to payment of residue, 439, 444. in respect to accounting, 445 et seq. See title Accounting by Executors and Administrators in the Surrogate's Oowt. what may be done by, before letters granted, 232 etseq. can do nothing as administrator, 233. intitances of relation of letters to death of intestate, 234. estate of, see title Estate. what are assets in his hands, see title Assets. liability of, see titles Executor, Actions. origin of, 3. conduct of, surrogates have power to direct and control, 19, 20. surrogates have no power over, relative to proceedings in other courts, 20. surrogate may control, where one persists in discharging duties erroneous- ly, 20. accounts of, surrogate io settle,, 19, 20. under Revised Statutes, surrogate required to record, 26. now required to file and to record with decree, summary statement of, 26. See title Accounts of Executors and Administrators. property wrongfully taken by, to be administered, surrogate cannot, on summary ap - plication, compel delivery of, 21. property in the hands of, surrogate cannot settle the rights of heirs to, 21. surrogates may enjoin, when cited to show cause why they should not be removed from office, 23. execution may issue against, when certificate of surrogate's decree for payment of money against, filed with county clerk, 24. certificate, when filed, lien upon lands of, 24. if execution returned unsatisfied, surrogate may assign bond of, 24. general nature of their functions, 208. in what surrogate's court letters of administration shall be obtained, 208. See title Letters of Administration. who are entitled to be appointed administrators, 210-221. order of preference, 209-217. - See title Administration. XOvi INDEX. ADMINISTRATOR— corafeued. who are incapacitated from being administrators, 210-221. persons convicted of infamous crime, 210-221. no degree of legal or moral guilt will exclude, unless convicted of infamous crime, 221. persons incapable of making a contract, 210. alien non-residents, 210, 211. minors, 210, 211. > persons adjudged, by the surrogate, incompetent by reason of drunkenness, improvi- dence, or want of understanding, 210, 211, 221. nature of improvidence contemplated by the statute, 22J. insolvency will not exclude, 221. indebtedness to the estate will not exclude, 221. professional gambler is disqualified by reason of improvidence, 222. married women, but administration to go in their right to their husbands, 211. surrogate cannot appoint person not entitled to administration, sole administrator on the petition of one of the parties entitled, 224, 225. all having a prior claim must renounce, or be cited before the surrogate, 224, 226. to give bonds, 223, 226, bonds to be acknowledged or proved, 226. although there are several, one bond only sufficient, 226. oath of, 221. form of letters of administration, 22T. De bonis HON, 227, 228, 230. if sole administrator, or all of several, die, become lunatic, convicted of infamous offence, or otherwise incapable, administrator de ionis non to be appointed^ 228. proceedings on appointment of, 229, 230. estate of, 238, 239. See title Estate. derives his authority entirely from the appointment of the surrogate, 233. what he may do before grant of administration, 233, 224. he can do nothing as administrator before letters of administration are granted to him, 233. may maintain trover for goods taken before his appointment, 234. payment of a debt due intestate to, before appointment, legalized by subsequent ap- pointment, 234. where intestate a non-resident, 234. See title Non-inhabitant recovery of property taken without authority before grant of administration, 235. Estate or, 232, 235 et seq. See titles Estate. Assets. where there are several, liability of, for the acts of each other, 484, 485. their commissions, 448, 492, 498. See titles Allowances. Commissions. of distribution under the statute, 525-53'?. See title SisirHmMon. distribution nowhere made the duty of the administrator, unless on proceedings against him, 444, 527. where sureties insufficient, proceedings to obtain further sureties, or to remove the ad- ministrator, 600, 601. where surety applies to be released, 601-604. ADMINISTRATOR, "WITH THE "WILL ANNEXED, when, and in what oases, to be appointed, 227, 229, proceedings before surrogate on appointment of, 229. bond of, 229. residuary legatee required to give, 229. oath of, 230. in the case of a foreign will, 230. rights, powers and duties of, 230. to observe and perform will, 230. havethe rights and powers, and are subject to the same duties as if named executors in will, 230, 360. subject to all the provisions of the statutes applicable to administrators, except so far as distribution directed by will, 230, 360. •first duty of, to make and file an inventory, 243 et seg,. See title Inventory, INDEX. xcvii ADMINISTRATOB, "WITH THE "WILL XSTSEXEB— continued. duties and liabilities of, in respect to legacies, same as those of an exeeutor, 360. See titles Executor. Legacy. Legatee. authority of, over the real estate of the deceased, 581, 588. ADTANCBMBNT. See title Distribution of children by their father, provisions of Revised Statutes respecting, 526, 527, 530. extend only to advancement by fathers, 53 1. out of personal estate, 532. what is so considered, 532. what is not, 532. child shall bring into hotchpot with the children, only not for benefit of widow, 632. ADTERTISING FOR CLAIMS. notice to be inserted by executor or administrator, in two newspapers, once in each week, far six months, 323, 347, 358. See title Executors and Adiministrators. AGE. requisite to execution of will, 46, 47, 54. mode of computing for testamentary or other purposes, 64. ALIEN. not being inhabitant, incompetent to serve as executor, 196. friend may be legatee, 361. ALLEGATIONS against the validity of the will, or the competency of the proof thereof. statutory provisions authorizing, 592. to be filed within one year after the probate, 592. who may file, 592, 593. widow not excluded, 593. what the allegations should contain, 593. citation to executors, 592, 594. service of, suspends proceedings of executors, 592. hearing and proceedings on return of citation, 592, 594, 595. appointment of guardians for infant legatees, 592, 594. probate of the will not prima fade evidence of its validity, 594. will must be proved de novo, 594. testimony must be reduced to writing, and entered in book, 595. testimony taken on first probate, 592. revocation of probate, 592, 595. notice of, 593, 595. service and publication of, 593, 595. effect of service on executor, 593. where probate is confirmed, 593, 595. costs and expenses of the proceeding, 593, 596. ALLOWANCES to executor or administrator for property perished or lost, 447, 478-482. trespass, taking goods, 479. goods perishing, 479. cattle dying, 479. «f his commissions, 448, 492-498. rate of, 448, 492-493. where there are several executors or administrators, to he apportioned by surrogate, 448, 492. where court directs annual rests to be made to charge in- terest, 493. where investment, or re-investment of fund, 494. sometimes entitled, for receiving, and not for paying, 494. paying over income for life, 494, 495. not chargeable upon legacies, 496. legacy to executor in trust, 495. ■upon what to be charged, 495. on moneys received and paid out, 495. when on value of goods, 495, n. (B). are in lieu of personal services, and executor entitled to no other probate together, 191. general, by implication, after an express limited appointment, 191. several executors, 191. « how quahfied or limited, 191, 2. formerly might be transmitted, 192. under lievised Statutes cannot be transmitted, 192. de son tort not known to the law of this state, 192, 193. statutory provisions, declaring liability of persons interfering with estates of de- ceased persons without authority, 193, 235. cannot assert or rely on his right in any other court without showing probate, or let- ters testamentary, from Surrogate's Court, 195. probate, or letters testamentary, not foundation of executor's title, derives his title from will, 195, 232. persons not competent to serve as executors, 196. prescribed by statute, 196. no degree of legal or moral guilt, unless person convicted of infamous crime, will render incompetent, 196. INDEX. CXiil EXECUTOR— conhe is in- terested under the will or in the estate, or where he is named as executor or trustee in will, 36. prohibition does not apply, unless' objection taken at first hearing by parties interested, 36. •may appoint guardian for infant, although person appointed is his relative, 36. cannot decide cause where he has been attorney, counsel or solicitor, 37. where disabled from acting, and no local officer, county judge or district attorney to act as surrogate, 37. in the county of New York, first judge of the Court of Common Pleas to act as surrogate where surrogate disabled, 38. when both disabled, then district attorney to act as surrogate, 38. first, judge, when acting as surrogate, to use seal of surrogate, 38. to record wills and letters testamentary or of administration in surrogate's books, 38. •cannot act as attorney, counsellor, ^c, in his court, 39, 40. partner of, cannot practice in his court, 39, 40. cannot be interested in costs in his court, 39. cannot decide case brought or defended by his partner, 39. cannot demand fees for advice, or for drawing papers, in matters pending, or which may be brought before him, except where fees are expressly given, 39. cannot be counsel, solicitor or attorney, for or against executor, administrator or guardian, in any civil action, over whom or whose accounts he has jurisdiction, 40. son, partner or clerk of, cannot practice as attorney or counsel before, 40. his record of proof of will onlyprima/acie proof as to real estate, 41. probate of will of personal estate taken by, conclusive, 41 . See title Will. jurisdiction of, to take the proof of wills, 139, 140. See title Wills. Of Proving WiUs. Also title Sv/irogate's Gourt. proving wills of inhabitants of the county before, 141 et seq. preliminary proceedings before, 141 et seq. tacts he must ascertain by evidence on applicatioq, 141. to appoint special guardians for minors interested, 141, 144. to issue citation, 141. before proceeding to take proof to require satisfactory evidence of seryice of cita- tion, 142, 147-148. if citation not served on all to be served, to adjourn proceeding, and issue further citation, 142, 148. on proof of service of citation to cause witnesses to be examined before him, 149. may issue subpoena to compel attendance of witnesses and production of the will, 149, 150. punishment for disobedience of such subpoena, 150. of taking the testimony before surrogate, 151 to 155. to take examination of aged, sick or infirm witness residing in same county, at residence of such witness, 165. where such witness resides in another county, proceedings to obtain his testinjony, 155 to 158. I fees of, on taking testimony in such cases, 156, n, (j). may issue commission to take testimony of witness residing out of the state, 24, 158. proceedings on taking out commission, 158 to 161. proof requisite to be taken to establish will, 152 etseq., 161 to 170. on proof of will, must determine upon questions of error or mistake, as well as fraud or incapacity, 168, 169. 51 clyi INDEX. SITRROGrATE — amtintied. proving wills of inhabitants of the county before — continued. entries to be made by, in his minutes, relative to proceedings for proof of will, no, 171. form of record of will, 171. to indorse certificate on will proved, 171. to reduce to writing and enter in book testimony taken on proceeding to prove will, 174. juriadiotion of, to take proof of will of non-inhabitant, 19, 175, proceedings on taking proof, 175 to 183. See titles WiUs. Of Proving Wills of Non-inkdbitants. as to probate and letters testamentary of wills of non-residents, 1*18. when to record will, and issue letters testamentary or of administration upon decree of Supreme Court, 178. may issue commission to prove will executed abroad, and witnesses to which reside abroad, 177, 178. proceedings before, as to wills maie by persons domiciled abroad, or executed out of this state by persons not citizens of this state, 179, 180, 181, 182._ entries and orders, 181. certificate on will, 181. • mandate of Supreme Court, where recorded, 182. to make exemplified copies of wills, 183. will of real estate proved before may be recorded in any other county, 183. record of proofs and examination taken by, in relation to will o'freal estate, where all the subscribing witnesses are dead, insane or non-residents, 185. production of will before, may be compelled by svipcena duces tecum, 186. what surrogate must issue the letters testamentary, 194, 195, 196. on affidavit of intention to file objections, filed to stay granting letters testamentary for 30 days, unless objections sooner disposed of, 198. proceedings on objections, 199, 200. , to require bond like that given by administrator of person named as executor where his circumstances are so precarious as not to afi'ord adequate security, 198, 199. proceedings before, to compel person named as executor neglecting to qualify for 30 days, after proof of will, to quaKfy or be deemed to have renounced, 201, 202. to file and record renunciations of persons named as executors, 203. consequences of renunciation, 203 etseq. effect of decree of surrogate that executor has renounced oh proceedings to compel him to qualify or be deemed to have renounced, 204. jurisdiction of, to grant letters of administration, 208. what surrogate has jurisdiction to grant administration of goods, &o., of intestate non- inhabitant dying out of the state leaving assets in several counties, 208, jurisdiction of, to grant administration in cases unprovided for by statute, 209. private property of Seneca Indians, not within jurisdiction of, 209. where several persons equally entitled to administration, surrogate grants to one or more in his discretion,, 2 1 0. discretion to be exercised by some rule, 217. other things being equal, nominee of majority of parties in interest entitled, 217. will consider moral fitness, 217. proceedings before on taking out letters of administration, 222 et seg. cannot grant letters of administration to person not entitled alone on the petition of a person entitled, 224, 225. where person remotely entitled applies for administration, those having prior claim must be cited or renounce, 224, 225. proceedings before on granting administration where minor has prior claim to person applying, 225. bond of administrator to be taken by, 223, 226. must be acknowledged or proved, 226. jurisdiction of, to issue letter of administration with the will annexed, and de ionis non, 227-230. ■ in what cases, and when to issue, 227, 228. proceedings before, on issuing, 229. to take bond of administrator, 223, 229. bond required as well of residuary legatee as of widow, or next of kin, 229. form of letters, 230. authorized to grant special letters of administration, or of collection, 230, 231. in what cases, 230, 231. where delay in proving will, 231. INDEX. clvii SURROGATE— coniinufid. authorized to grant special letters of administration, or of collection — continued. surrogate's discretion unrestricted, 231. where delay in granting letters of administration, 230, 231. security to be given by collector, 231. form of letters', 231. appointment of appraisers by, to aid in taking inventory, 244 et seq. See title Inventory. may supervise proceedings of appraisers, and correct irregularities, 249, 250, n. (r), 262. where executor or administrator omits to set apart property for widow, surrogate may order payment of a sum of money in lieu of the amount to which she was entitled, 252. may extend time to return inveutory, 255. proceedings before, to oonfpel executor or administrator to return inventory, 255-262. who may apply, 256. petition, 25'?. summons, 265, 258, 259, 261. attachment, 255, 259, 261. when he may revoke letters of executor or administrator for not returning, 265, 261. assign bond, 266, 261. must be taken within a reasonable time, 258, 259. certificate of, to enable executor or administrator to transfer stocks, 277. authority of, over collector, in respect to sales of personal property of deceased, 283. proceedings before surrogate to obtain directions for sale, 283. his authority to compel collector to account, and to deliver oyer property to executor or administrator, 278. may give preference, in payment of debts by executor or administrator, to rent due or accruing upoii leases, over debts of fourth class, 284, 286. proceedings to obtain order allowing preference, 289. order allowing preference, 289. upon accounting of executor or administrator, preference may be allowed, 289. pew rent not entitled to preference, 289. proceedings before, to procure order that execution issue upon a judgment obtained against an executor or administrator, after a trial at law upon the merits, 336-340. petition, 337. order to show cause why execution should not issue, 337. citation to account, 337. order that execution issue, 339. proceedings before, to obtain order to issue execution upon a judgment obtained against an executor or administrator, otherwise than after a trial upon the merits, 340, 342. when he may grant the order, 340. amount for which execution may issue, 341. may decree payment of claim against an executor or administrator at any time after six months from the grant of letters, 325, 342 et seq. petition for relief under the statute, 344. citation to show cause why payment of debt should not be decreed,. 345. proceedings on return of citation, 345. defence of Statute of Limitations, executor must set up in time, 345. decree, 346. whether surrogate may try validity of alleged claim 7 346. may order payment of legacy, or portion of legacy, to legatee, where same necessary for his support, before the expiration of the year, 404, 405, 408, 409. whn and how order for advance to be made, 404, 405, 408, 409. See title Payment of Legacies. may decree payment of legacy, or distributive share, against executor or administrator, . at any time after one year from grant of letters, 405, 420, 421. petition and proceedings, 325, 342, 421-423. I See title Payment of Legacies.' may direct payment of legacy to minor, to his general guardian, on his giving, se- curity, 404, 426. See title Paymad of Legacies. proceedings to obtain directions, 426, 427. order directing guardian to receive, 427. when minor has no general guardian, or direction not given for payment, surrogate to receive and invest legacy to minor, and apply income to his support, 404, 427, remedies by proceedings before, to enforce disposition or distribution of residuary es- tate, 442, 443. clviii INDEZ. SURROGATE— coBiJMwe^. after eighteen months from grant of letters, surrogate may order executor or adminis- trator to account, and decree payment of claim, 325. thirty days' service of order, 325. creditor obtaining judgment after trial upon the merits, may have remedy to issue ex- ecution under this provision, 325, 340. creditor obtaining judgment against executor or administrator otherwise than after trial upon the merits, must seek his remedy to issue execution under this statute, 340-342. claimant who has not obtained judgment may have remedy under same statute, 347. payment of legacies may be enforced by proceedings on accounting, 405, 425. payment or distribution of residuary estate may be enforced by same proceedings, 443. who may apply for order to account, 446. may authorize executors and administrators to compromise debts, 448, 481. proceedings to obtain authority to compromise debt, 481. to apportion commission among the executors or administrators where there are several, 448, 492. jurisdiction of, on final settlement of the accounts of executors and administrators, to decree payment and distribution of property not paid or distributed, and to settle and determine questions concerning any debt, claim, legacy, &c., 504 etaeq. claims between the executor and the estate, 504-5. , several executors, 505-6. as respects personal representatives of deceased executor, 506. in respect to claim due surviving partner, 506. to charge executor with value of premises of the estate sold to himself, 506. to determine validity of an alleged donatio mortis causa, 506. to determine the validity and. amount of a claim by a creditor, brought against the executor and administrator, 507, 522 where creditor has security for his debt upon another fund, 523. where there is a specific lien on the laud devised, 523. power of, on final settlement of accounts, to direct disposition of property still in ex- ecutor's hands, and of securities not yet due, 450, 523, 525. to allow retainer for debts not yet due, 451, 524. may compel executors to account for proceeds of sales of real estate, ordered by will to be sold to pay debts or legacies, 451, 524, 582, 683. cases to which jurisdiction extends, 524, '583. distribution under the statute, 525, 537. See title Distribution. where the deceased, at the time of his death, was domiciled abroad, 537, 539. See title Non-inhabitant. disposition of personal property under will of person dying domiciled abroad, 539. See title 2fon-mhaMtam,t. disposition of personal property of intestate married women, 540-542. See titles Distribution, ffitsband and Wife. his authority with respect to disposingof or securing the distributive shares of minora, 527, 542. form of surrogate's decree on final settlement of accounts of executor or administrator, 542, 544. recitals in, 542. decree for settlement of account, 542. distribution, 543. where accounting at instance of a single ,party, 544. costs of the accounting executor entitled to his costs, so far as he is not in fault, 543. surrogate not authorized to decree costs to the exclusion of the executor's commis- sions, 493, 543. enforcing surrogate's decree, '544, 549. by action at law, 544. complaint, 644. when by attachment, 544. when surrogate may cause bond to be prosecuted, 545, 546. to sustain action upon bond, decree must be shown, 546. service of copy decree not required, 546. demand not necessary, 546. omission to perform decree must appear, 546. INDEX. cHx SUUnOGr kTE—conUnued. certificate of decree for payment qf money, 545, 54T. application for and issuing certificate, 547. to be filed witli county clerk, 545, 54'7. becomes a lien on land, 645. execution upon, 545, 547. form of the process, 545, 547. to direct levy of property of executor and not of deceased, 547. if execution returned unsatisfied, surrogate to assign bond, 645, 547. proof required to obtain assignment, 547. order for assignment, 547. constitutes assignment, 647. surrogate retains custody of bond, 547-8. action upon bond may be in name of party obtaining decree, 648. judgment in, 548. accounting before, by collector, when letters of collection superseded, 549. PEOCEEDINOS BEFORE, BY EXECUTOR OR ADMINISTRATOR, TO OBTAIN AtTTHORITT TO MOST- GA(JE, LEASE OR SELL REAL ESTATE OF DECEASED FOR THE PAYMENT OF HIS DEBTS, 553, et seq. See title Heal Estate of Deceased Persons. when executor or administrator may make application, 653. petition to mortgage, lease or sell, 553. appointment of guardian for minors interested, 555. See titles Special Chtardian. Minors. order to show cause why authority should not be given, 567. service and publication of the order to show cause, 557. hearing on return of the order to show cause, 558, 563. See also, 673, 6T4. what heir or devisee may show, on hearing, 558, 560. surrogate cannot order sale to pay executors' expenses, 662. nor costs, 562. to order question of fact to be tried by a jury, 562, 3. to enter demands adjudged valid, in a book, 663. entry, nunc pro tunc, 563. order to mortgage, lease, or sell, 663. facts, of which surrogate to be satisfied before making, 563. of determining whether property shall be mortgaged, leased, or sold, 564. lease may be for how long, 564. heirs or devisees to show that money can be raised by mortgage or lease, 564. order for sale, 565. security to be taken, 566. appointment of person to sell where executor or administrator omits to give ssch rity, 567. notice of sale, 567. to be six weeks, 667. regulations of sale, 568. vacating or confirming sale, 568, 9. conveyance of the real estate, 570. surrogate cannot compel purchaser to take, 571. disposition of proceeds of sale, 571. calling executor or administrator to account, 571. proceeds to be brought into surrogate's office to be distributed, 67^1, 2'. payment of expenses of sale, and satisfaction of widow's dower, 572. cannot sell widow's estate in dower, where dower has been assigned, 572. notice of distribution, 573. to be published six weeks, 572. distribution of proceeds of sale, 573, 574. proceedings on distribution, 574. disposition of surplus, 576. surrogate to keep securities and collect and apply same, 676, 6. to make investments, 576. Proceedings before, to mortgage, lease or sell,- the real estate of the db ceased, foe the payment of his debts, taken on the application of a ckedi TOR, 576, 682. ■ when they may be taken, 576-578. petition of creditor, 578. Clx INDEX. SXTRROGrATE— co«to«ed. PBOOEEDmaS BEFOEE, TO MOBTOASE, LEASE OR SELL, THE BEAL ESTATE OF THE DECEASED JOE THE PAYMENT OF HIS DEBTS, &0. — Continued. order that executor or administrator show cause, S1G-1, 579. appointment of guardian for minors interested, 579-80. order that parties in interest show cause, 580. order that executor or administrator mortgage, lease, or sell, 681. maj distribute proceeds of sale of real estate, made hy executors, under devise or power, 682. proceedings before, for the revocation of the probate of a will, on allegations, 691, 696. allegations, 592, 3. citation, 692, 594. hearing and proceedings on return of citation, 692, 694, 6. appointment of guardians for infant legatees, 592, 694. probate of the will not prima facie evidence of its validity, 594. will must be proved de novo, 594. .must reduce testimony to writing and enter it in a book, 695. revocation of probate, 592, 595. notice of, 593, 595. service and publication of, 593, 596. where probate is confirmed, 593, 596. costs and expenses of the proceeding, 593. enforcing the collection of, 593, 695. PEOOEEDINOS BEPOEE, ffOE THE EEMOVAL OP AN EXEODTOE WHO IS LESAlIiT INCOMPE- TENT, AND TO COMPEL AN EXEODTOE WHOSE OIECnMSTANOES AEB SO PBEOAEIOUS AS NOT TO AFFORD ADEQUATE SBCUBITT FOE HIS DUE ADMINISTEATION OF THE ESTATE, TO OITE SECURITY OE TO REMOVE HIM FOE WANT OF SECDEITY, 696, COO. complaint, 696, 596, 697. citation, 595, 597. order enjoining executor, 596. proceedings on return of citation, 697, 599. ■when "security should be required, 698. / cases to which statute applicable, order requiring security, 699. amount of security, 599. bond like that required of administrators, 696, 600. must be to the people, 600. where executor neglects to give bond, letters testamentary superseded, 600. when executor incompetent, security not to be taken, but letters testamentary to be superseded, 596, 599. oases of incompetence, 599. PROCEEDINGS BEFOEE, TO COMPEL AN ADMINISTRATOR "WHOSE SURETIES AEB INSUFFICIENT TO SITE PUETHEE SURETIES, OR, FOR WANT OP SUCH FURTHER SURETIES, TO "REMOTE HM PROM HIS TRUST, 600, 601. PROCEEDINGS BY A SURETY OF AN ADMINISTRATOR, TO BE RELEASED FROM RESPONSIBILITY FOE THE FUTURE ACTS OE DEFAULTS OP THE ADMINISTRATOR, AND TO COMPEL SUCH A»- MINISTRATOR TO GIVE NEW SURETIEia, AND, FOE WANT OF NEW SURETIES, TO REMOTE HIM FROM HIS TRUST, 601, 604. PEOCBEDINGS BEFOEE, FOE THE APPOINTMENT OF A GUAEDIAN POE A MINOB OTBB THE AGE OP FOURTEEN YEARS, 628, 624. FOE THE APPOINTMENT OF A GUARDIAN FOE A MINOR UNDER THE AOE OF FOURTEEN YEARS, 626, 528. to annex copy of statute to letters of guardianship, 634. authority of, to compel guardians to render accounts, and to settle their accounts, 637. proceedino'S on accounting, 637. PEOOEEDINGS BEFORE FOR THE REMOTAL OF GUARDIANS, 641, 645. SURROGATE OF THE COUNTY OP KINGS, « authorized to appoint clerks to assist him in his ofiSoe, 16. compensation of such clerks to be audited and allowed by board of supervisors, out of fees and perquisites of office, 18. SURROGATE OF THE COUNTY OF NEW YORK, election and term of office of, 11, 12. vacancy in the office of, supervisors of the city and county to fill,' 12. has power to appoint assistants, 15. number of, to be authorized by board of supervisors, 15. to be responsible for acts of assistants, 16. INDEX. cM StrRROGATE OF THE COUNTY OF NEW YOKK— continued. ■ to be allowed salary of $3,000 per year, 17. board of aupervisora of .couaty may increase or dimmish, but not more than $500, 11. salary, how to be paid, 17. accounts of assistants of, not to be allowed until verified, &c., 17. salary of, and of assistants, to be paid out of fees and perquisites of office, 17. contingent expenses of, to ba paid out of fees and perquisites of office, 17. fees and perquisites and contingent expenses of, comptroller to keep a distinct account of, 17, 26. penalty of bond o^ as security, to be in $10,000, 18. supervisors may require from, and from assistants, such security as they may deem proper, 18. to keep an exact account in a book of fees, &o., 26, 34. fees of, belong to and are for the benefit of the city and county, and are to be paid over into the treasury, 34. transcript of, to be transmitted to comptroller, under oath, monthly, within ten days after expiration of month, 34, • assistants to charge for services, and same to be accounted for, 35. receiving fees to his own use, or neglecting to account for same, guilty of misdemeanor, and punishable by fine and imprisonment, 35. where disabled from acting, first judge of Court of Common Pleas to act aa surrogate, 38. when both disabled, district attorney to act as surrogate, 38. first judge, when acting as surrogate, to use seal of surrogate, 38. to record wills and letters testamentary and of administration in surrogate's books, 38. practice in the court o^ in respect to granting administration of the goods, &o., of de- ceased non-inhabitants, 220. StTRROGATES, office of surrogate, derivation and origin of, 1, 2, 3. under the colonial government, 3. first recognized under state government by act of 1778, 3. See title Surrogate. authorized to allow of guardians by act of, 1802, 1803, 622. to cause admeasurement of dower to widows, 4. previous to Revised Statutes, jurisdiction undefined, laws defective, practice various and floating, 4. evils remedied by Revised Statutes, 4. incidental and constructive authority of, 4. ■ reatraints upon, provided by Revised Statutes, repealed by act of, 1837, 4. fees of, and their duties in respect to accounting for the same, 33. cases in which disabled from acting, 36. of supplying their places in such oases, 36. prohibitions to which they, their clerks, law partners, Ac, are subject, 39. SURROGATES' COURTS, See titles " Swrogates" and " Swrogate.'" Statutory Courts, 6,- not courts of record, 6. courts of peculiar and special jurisdiction, 6. previous to Code of Procedure, laid down that they were entirely creatures of the statute, 6. in pleading decree of, previous to Code, jurisdiction required to be shown affirma- tively, 6. since the Code not necessary to state facts conferring jurisdiction, 6. sales of real estate by order o^ since statute ot 1850, valid and effectual as if made by order of court of original general jurisdiction, 6, 7, 586, 587. title of purchaser at, cannot be impeached for any cause for which same could not be impeached, if order made by court of original general jurisdiction, 7, 686, 587. have only a special and limited statutory jurisdiction, 7. authority of, need not be given in express words, 7. may be taken as granted, if same may be fairly inferred from general language of statute, &c., 7. pleadings in, 7. parties must make statements of their claims in, in the nature of pleadings, 7. attorneys and counsellors not known as officers of, 8. See title Attorneys and GownaeUors. Olxii INDBZ. SURROGATES' COURTS— co«fc«eA existing organizfttion of, . 8. See title Swrogates, Office of. county judge to be elected to discharge duties of office of surrogate, 8, 9, 10. separate officer, 8, 9, 10. . local officers, 10. surrogate of tlie county of New York, 11, 12. time for holding, when county judge performs duties of office of surrogate, 13, 26. rnay be held at time and place of holding county court, 13. county judge to direct order of business in, 13. when held by separate officer elected to discharge duties of office of surrogate, to be held at the times and places, and in the manner and with the powers and jurisdiction provided by law, 13. laws relating to, to apply to county judge and other officers, 13. to be held by surrogate, 19. writs and process, issuing of, to be in the name of the people, unless otherwise provided by law, 24. time when they shall be open, 24, 25. open at all times, particularly Monday of each week, sittings of, must be public, 25. cannot be open or transact business on Sunday, 26. no stated terms in, 25: process to enforce orders, &c., of, may be issued by surrogate of one county, to officers authorized to serve in any other county, and officer required to execute same, 24. issued out of, ofBcers to whom directed must execute as if issued by a court of record, 27. for neglect, officers subject to like penalty, 27. sheriff, jailer, coroner, Ac, to execute process of. In the same manner as if issued by court of record, 2T. See title Process. provisions of certain sections of the Revised Statutes specified, to apply to attachments issued out of, 28. See title Attachments. may award costs in cases of contest, 32. costs to be taxed at rate allowed by Court of Common Pleas, 32. See title Costs. when jurisdiction acquired, same exclusive of all other surrogates, 32. See title Jwisdiciion. will proved in, conclusive as to personal estate only, 41. may be proved in, as to both real and personal estate, 41. See title Will. where will of married woman proved in, duty of to admit to probate, leaving it to proper tribunals to determine what property passes, 58. cannot, upon the probate, pass upon operation or effect of such will, 68. whether provisions of statutes relative to revocation of devises and iequests, as distin- guished from those relating to revocation o( wills, were not intended for guidance of courts of construction and not of Probate Court? 134. what wills must be proved in, 138. importance of proving will of real estate in, since R. S., 1B9. what Surrogate's Court has jurisdiction to take the proof of the will, 139. provisions of the statute prescribmg the surrogate to have jurisdiction, 139, 140. cases unprovided for by the statute, 140. jurisdiction in tbose'cases, 140. Surrogate's Court has jurisdiction to take proof of will of personalty valid by law of domioil, hut not by law of place where made by commission^ 140. course of proceeding in, in matters relating to probate and administration, 140. where jurisdiction given by statute, mode of exercising it is in discretion of surro- gate, 140. proceedings in on proving wills, 141 et seq. of the proving of wills of inhabitants of the county — of the preliminary proceedings, 141 etseq. of the petition for the proof, 143 etseq. of the issuing and service of the citation, 145 ei seq. of proceedings for the proof, 1 49. See titles Witt. Of Proving Witts. of the proving of wills of non-inhabitints, 176 etseq. the only courts in which validity of will of personalty can be established or disputed, 194, 195. INDEX. clxiii SUBROGATES' OOVRTS— continued. the only Courts of Probate, 195. letters testamentary or probate from, requisite to enable executor to . assert or rely on title in any other court, 195. what Surrogate's Courfmay issue letters testamentary, 194, 195, 196. in what Surrogate's Court letters of administration shall be obtained, 208. See title Letters of Administration. costs and fees in, 604, 60.6. cannot require security for costs, 606. SUSPENSION, of the absolute ownership of persona) property restricted, 366. TENANT FOR LIFE. executor or administrator of, may recover from lessee of, proportion of rent due at death, 266, 267. of personal property, remainder over, 415 et seq. See title Payment of Legacies. a person taking the residue for life, is entitled to the proceeds from testator's death, 415. where the bequest is of things quae ipso nsu consumimim; 416. of things daily wearing out, 418. inventory by tenant for life, 418. duty of executor to convert the property into money, and invest the proceeds, 417. TESTAMENTARY GUARDIAN, appointed by will, not guardian for purposes of proof of will, 141. when entitled to receive legacy of minor, 404, 425, 426. See title Faymsnt of Legacies. how constituted, 621. powers of, 621, 622. father only can appoint, 622. TESTAMENTARY TRUSTEES, surrogate has jurisdiction to take and settle the accounts of, 449, 450, 504. accounting by executors as, 504. TESTIMONY of foreign witnesses may be taken by commission in proceedings in Surrogates' Courts, 24, 158. taken by surrogate, in relation to the granting or revocation of letters testamentary, or of administration, to be reduced to writing and entered in book, 25, 174. on proving will, 151 et seq., 161 etseq. to be committed to writing, 155, 474. and subscribed by witness, 155. statute prescribes no form for taking, 155. of aged, sick, or infirm witness residing in same county with surrogate, how ob- tained, 155. residing in another county, 155-158. of foreign witness, 158-161. what must appear by, to establish will, 161 et seq. where that of subscribing witness defective, may be supplied from other sources, 164, 167. parties resisting probate, may introduce, to show will not valid, 167. of blind person, 53, 166. in relation to the proof of any written or unwritten will, to be reduced to writing and entered in a book, 155, 174. on proving will of non-inhabitant, 176. where there are conflicting claims to administration, 226. TIME, for holding Surrogates' Courts, 13, 25. TIOGA, COUNTY OF, lobal officer to be elected in, to discharge duties of county judge and surrogate, 10. time of election, and term of of&ce of, 11. when to be designated special county judge, and when special surrogate, 14. to possess powers, of, and to continue proceedings commenced before county judge, 14. to be allowed compensation by board of supervisors, 16. to discharge duties of county judge and surrogate, in case of vacancy, 32. fees o^ to be paid over to county treasurer, 34. clxiv lUDBX. TITLE, of purchaser of real estate at surrogate's sale, not to be impeached for any omissioiir &c., for which same could not be impeached, if made by order of a court of original general jurisdiction, 1. TITLES, of officers authorized to perform duties of office of surrogate, 13. TRADE, profits of, carried on by executor, shall be assets in all eases, 310. executors have no authority to carry on the trade of the testator, 310, 311. what is meant by this doctrine, 311. liability of executor continuing, 310. carrying on for profits, 486. TRANSCRIPTS, surrogates to make and certify to the correctness of, 27. on neglect or refusal so to do, surrogate guilty of a misdemeanor, 21. TRUSTEE. See title Testamentary Trustee. ULSTER, COUNTY 0¥. local officer to be elected in, to discharge duties of county judge and surrogate, 11. time of election, and term of office of, 11. powers and duties of, 14. to be known as special oountyjudge, 11. to be allowed compensation by board of supervisors, 16. to discharge duties of county judge and surrogate in case of vacancy, 32, fees of, to be paid over to county treasurer, 34. UNCLE, bis degree as next of kin, 215, 534. grandfather preferred to him, 215, 534. great grandfather shall share with him in distribution, 534. so shall nephew and neices, 534. UNSOUND MIND, persons of, cannot devise real estate, 46. bequeath personal estate, 41. who are, 49. persons who do not betray a total loss of understanding, are not of, 49, 50. what evidence necessary to support will, made by persons ofj during lucid intervals, 51, 52. how to determine whether a man is of, 53. VACANCIES, in office of surrogate, regulations respecting, 12. of county of New York, board of supervisors of city and county authorized to fill, 12. VESTED LEGACIES, doctrine of, 387, 392. See title Lapsed Legacies. WEAKNESS, of understanding, what is sufficient to be a ground of incapacity, 49 et seq. subject of affirmative proof, 167. "WIDOW, surrogates authorized to cause admeasurement of dower of, 4. have power to admeasure, 19. proceedings upon admeasurement to be recorded, 26. name and residence of to be ascertained on application to prove will of personal prop- erty, 141. ditatlon to prove will of personal estate to be directed to, "and served upon, 141, 142, 145 et seq. may file affidavit of intention to file objections against grant of letters testamentary to pei-son named as executor, 198, 199. may compel person named as executor, neglecting to qualify for thirty days after proof of will, to qualify or be deemed to have renounced, 201, 202. See title Legatee. her right to administration, 209, 216. index:. clxv VnDOW—conimued. articles exempted from appraisement to be set aptsrt to, 246, 247. additional property in the discretion of ttie appraisers, not exceeding in value $150, for the use of, 247. appraisers' discretion applies only to select the articles not to the amount, 249, 251 and n. (r). may set apart portion in furniture or other articles, and portion in money, 249, 250. where executor or administrator omits to set apart property for widow, Surrogate may direct the payment of a sum of money in lieu of the amount to which she was entitled, 252. right of, to elect where testamentary provision made for her in lieu of dower, 434, 436. See title ElecMon. provisions of statute prescribing dower, 434. what shall constitute a valid election by her, 4BS. what constitutes a case of election under the Revised Statutes, 436. may make application to surrogate to compel executor or administrator to account, 452. executor entitled to be allowed reasonable sustenance of, during her quarantine, her rights under the Statute of Distributions, 525, 528. See title DisirttivMon. a child shall not bring in his advancement for her benefit, 532. in proceedings to mortgage, lease or sell the real estate of the deceased for the payment of his debts, order to show cause to be served upon, 557. satisfaction of her dower, 572. ■WIPE. See title Husband and Wife. capable of making will while married, or revoking will made previoma, 57 ef«ej.l30, 131. of being executrix with consent of husband, 199, 197 . bfbeing legatee, 361. WILL. surrogate to take proof of, 19. to record all wills proved before him in i, book, 25. to record will of real estate in his county, proved in another county, 26. cannot admit to probate where he is interested or named as trustee or execu- tor, 36. prohibition does not apply, unless objection taken by parties in interest at first hearing, 36. when proved before first judge, to be recorded in surrogate's books, 38. of personal property, probate taken by surrogate conclusive, unless revoked or reyersed on appeal, 41. codicils to wills, 44. definition o^ 44, 45. form of, 45. need not be physically anilexed, 46. , must be constructively connected by refer^tibe to the will of Which it iS a supple- ment, 45. there may be many codicils, if not contradictory to each other, 45. must be executed, &c., with the same formalities as a will, 45. is revocable, 45. mutual, unknown to testamentary law, 46. there can be only one last will, 45. as used in 6th chapter of the 2d part of R. S., includes codioila as well as wills, 187 . mutual, 45. See title Matiml WiMs^ nuncupative, 58, 119ei«eg'., 184, 185. See title Nwruyu^aMme Will. OF PBESOlfAli PEOPBETT, power of making, has existed fi-om earliest period, 41 . not at common law of the whole, unless testator died without either wife or issue, 41. the law now altered, and a man may bequeath the whole; 41j 42. whether exemption law imposes a restriction, 42i termed tesiamenium, 42, n. (i). , ^ 'i definition of last will and testament, 42. will operate on personal estate acquired since the date of will, 42. Clxvi INDEX. TVILL — contmued. OF PERSONAL PEOPERTT — conUmted. law in this particular, altered by Revised Statutes and devises made prospeotive, 43. See Wills of Real Estate. former distinction between, in this respect, and a codicil, 44 in strictness cannot exist without the appointment of an executor, 44. distinction between, in this respect, and a codioily 44. the bare nomination of an executor will make it a will, 18'7. its nature. in all cases a revocable instrument, 45. cannot be joint or mutual, 45. whether such a will can be enforced in equity as a compact, 46, n. WHO IS CAPABLE OP MAKING, 46. persons mca/pabh from want of discretion. infants. See title Infant. males under eighteen, females under sixteen, 4'r, 53. cannot and never could devise real estate, 54. mode of computing age for testamentary purposes, 54. idiots, 48. who are considered so, 48, 49. cannot at any time make a will or testament, 49. persons of mean understanding, however, may make will, 49. degree of mental capacity requisite to execution of a will discussed, 49 et seq. man born deaf, dumb and blind, looked upon by law as an idiot, 51, deaf and dumb, 51, 112. blind persons, 53. what formalities necessary, 112, 113, 166. persons who cannot read, 166. Iun9,tics, 61 et seq. See title JJimaMc. persons who have outlived their understanding, 52. incapacity from old age, 52. old age alone will not disqualify, 52, persons weak in understanding, 52, 53, 166. persons drunk, 53. habitual drunkards, 53. inof&cious testaments, 166. persons disabled from want of liberty or free will, 54 et seq. prisoners, captives and the like, 54. will obtained by /oree, 54, 161, 165, 168. will obtained by fea/r, 54. j will obtained by fraud, 54, 161, 165, 168. cannot be set aside in equity, 168. will obtained by influence, 54, 161, 165, 168. what sort of influence will invalidate, 166, 168. ■v^ill of married woman, 54, 58. See title Busiamd and Wife, of real estate, who may make. See title Devise. made under a power, 54, n. j[«). POEM AND MANNER OP MAKHTO, 58 ei Seq. difference between formalities before and since the Revised Statutes, 68, 59, 60. statute prescribing, 59. witnesses to, must write opposite their names their places of residence, 59. person signing testator's name, to write his own name as a witness, 69. penalty for neglect to comply with either of these requirements, 69. omission will not affect validity of will, 69. statute prescribing, 59. comprises all the directions necessary to be observed in execution of wills, 60. sole guide to formalities, 60, four ingredients must enter into complete execution, 60, 1, will must be subscribed by testator at the end, 69, 60, 62 et seq. 2, subscription must be In the presence of, or acknowledged to two attesting wit- nesses, 59, 60. INDEX. ■ clxyii "WILL — cxmUmixd. FOEM AND MANNER OP MAKINQ — CmMnUtA. 3, testator must publish, 69, 60. 4, two witnesses must sign at the request of the testator, 69, 60. statute, is peremptory evasion or omission not tolerated 7 60, 61. literal compliance with, however, not necessary, substantial compliance HufS- cient, 61. neither of the four acta maybe done at a different time from the rest, 61, 110. order in which acts performed immaterial, 61. o/fe mihsariipUm, of the will by the testator, 62. must be subscribed by the testator at the end, 69, 60, 62. not necessary that testator should be able to write ; signing by mark or by hand of another good, 62. what constitutes a subscription by the testator at the end, 62 ej seq. case of the wiU of John, Tonnele 63. Catharine Kerr, 64 English oases, 65, n. (j). person signing for testator, must sign testator's, not his own name, 68. not necessary that all the sheets of will should be signed, or that they should be connected together, 69. absence of separate paper containing testamentary intentions, will not vitiate exe- cution, 69. subscription, to be made by testator at the end, in the presence of the two attesting witnesses, or to be achnowledged to each of the witnesses, 70, 7 1 e< seq. acknowledgment good, whether subscription made by testator or another per- son, 71. where subscription not made by testator, what constitutes a sufScient acknowledg- ment of the subscription, 71. case of Ghaffee v. The Baptist Missionary Convention, 71. the goods of Cha/rlotte Elizabeth Ives Bosanquet, 72, n. (y). the win of Thomas Leiois, 74. ^ ^ ' William Paterson, 75. where subscription not made in presence of one of the witnesses, and no ac- knowledgment to him, defect fatal, 77. acknowledgment, no particular lorm of, 77. need not be in words, 77. may be by signs, 77. must be to both witnesses at the same time, 77, 78. subscription in presence of one witness and acknowledgment in presence of the other not allowed, 77. ■of the publication of the wiU, 59, 79. testator, at time of making subscription or acknowledging same, to declare instru- ment so subscribed to be his last will and testament, 59, 79 etseq, no publication ever necessary before Revised Statutes, 79. intent and meaning of the statute, 79, 80. no particular form of words necessary to comply with requirement of statute, 81, 95. what is a sufficient declaration, 81, 95. case of the will of Emanuel Abrams, 82. Remsen v. Brincherhoff, 82, 83, 84. the will of Mungo Cwrie, 85. Brown v. De Selding, 86. whether declaration may precede subscription ? 87. which is done first in order of time is immaterial? 87. whether declaration must be made to the attesting witnesses, or in their presence, in such terms or in such a manner as to enable them to know the fact that it was so made.? 88 to 96. case of the will of Henrietta Micks, 90. Brown v. De Selding, 92. VanWyckagi, Seymour,-93. use of the precise term " declare," not necessary, 95. reading of the will in the presence of the testator and witnesses, and subscription by all parties in presence of each other, good execution, 95, 96. publication may be by answer to question, 9B. clxviii • INDEX. WILL — conUrmed. rOEM AND MANNER OF MAEONG — COnUmied. of the puUicaiMn of the wiU — conttnued. statement by one witness to the other at tlie time, of subscription, in the presence and hearing of testator, a compliance with statute, 96. information in such case should be distinct and unequivocal, 96. where instrument called " will or agreement" not sufficient, 96. where testator declared the paper to be bis free will and deed, not sufficient, 97. calls paper "an instrument in writing," it is not a publication, 98. declaration cannot be left to the interpretation of a Ifiugb, to m^re guess, surmise or conjecture, 97. of the attesting witnesses and their duties, 59, 97 et seq. there must be at least two attesting witnesfes, each of whom must sign his name at the end of the will, at the request of the testator, 59, 97, 102. only two witnesses necessary ; if three persons sign, defect as to one immaterial, 97. witnesses must sign their names, initials not sufficient,, 98. one, however, holding and guiding the hand of the other, good, 99. making a mark to his name already written, sufficient, 99, 101. mark alone not sufficient, 102. must sign their names at the end of the will, 102. what is a signing at the end of the will, 102. object of the statute, 102, 103. testator and witnesses must agree as to the instrument — what it is and where it is to end, 103. case of the wiUof Gathwrine Kerr, 103. goods of M. Taylor, 103. usually sign at end of attestation clause, 104. attestation clause not necessary to validity, and does not constitute part of, 104, and note (/). on a rigid construction of the statute, the conclusion of that clause is not the place designated for the witnesses to sign, 105. signing by, at the end of the attestation clause, sanctioned by practice, 106. immediately after the last hhe of the will is the proper place for the wit- ness to sign, 106. attestation clause may then be appended, and signed also, 106. J" duties of, on attesting will, 104, 105, n. (/). each of the witnesses must sign his name at the end of the will, at the request of the testator, 59, 60, 106 et seq. not material at what stage of the execution request is made, 106. testator need not, in terms, request witnesses to attest, 107. request to, to sign, may be implied as well as expressed, 107. reading of will and attesting clause may amount to a request, 107. circumstances attending execution, may establish and imply, 108. request to, to sign, may be communicated by signs or implied by acts of parties, 108. may be made by testator answering "yes," to question whether he wished them to sign, 108. by one witness to the other in the presence of the testator, 108, 109, 110. when it may be presumed, 110. statute silent as to witnesses signing in the presence of the testator, 110. doctrine of constructive presence, under previous statute, rejected, 111. not jiecessary that they should sign in testator's presence, 111, 112. unattested papers referred to by will, 113, 114. rule as to, under former statute, not changed by Revised Statutes, 113, 114. where subscribing witness, legatee, devisee, kc.., 114, 153, 164, 162. creditor, when debt charged on land, competent witness to, 114, 163, 161-2. effect of evidence of attesting witnesses, as to the circumstances of attestation, 114, 115, 162 et seq. will may be sustained in opposition to their testimony, 115. where attestation clause full, mere inability of witnesses to recollect will not inval- idate will, 115, 162 to 165. FORM AND LANGUASE OP A WILL, 117. " no particular form necessary, 117. technical language not necessary, 117. may be in Latin, French, or any other tongue, 118. may be contained in several papers, 117, 118. INDEX. clxix; "WILL — continued. • FOIiM AND LANGijA&E OF A WILL — COntimted. materials with which will may be written, 118. may be made or altered in pencil as well as in ink, 118. who may be the writer, 118, 165. legatee, 118, 165-6. doctrine as to proof of will when so prepared, 118, 119, 165-6. in all cases revocable, 45, 122, 124. EETOOATION OF, 122 et seq. revocable nature of a will, 45, 122, 134. whether mutual wills revocable, 45, and n. («) 122. not affected by subsequent insanity of testator, 61. enactments in Revised Sta'tutes respecting, 122, 123. 1. By a subsequent testamentary disposition, 124. subsequent will does not revoke former, unless it contains clause of revocation, or is inconsistent with it, 124, 125. mere proof of execution of subsequent will not sufficient to invalidate prior will, 125. two inconsistent wills of the same date, 125. where there are several testamentary papers of different dates, it is a question of in- tention, upon all the circumstances, how far' either is a revocation of another, 125, 126. -whether, on the revocation of a latter will, a former uncancelled will is revived, 126. statutory provision that it shall not, 123, 124, 126. construction of the statute, 126, and n. {j). 2. By express revocation. statutory provision respecting, 122, 127. 3. By republication of a prior will doctrine stated, 127. 4. By burning, tearing, cancelling, obliterating, or destroying. not necessary that instrument itself should be consumed or torn to pieces, 127, 128. what injury amounts to revocation, 128. question of revocation, question of intention, 128, 129. when destruction of will is a revocation of codicil, 129. ora'MS of proof of cancellation, lies with those who oppose will, 130. •5. By marriage, or other change of circwnstances, Preswm/ptive or implied revocations. no will to be revoked, unless by another will, or expressly, or by mutilation, &c., except where, subsequently to making will, testator has married and had issue, or a change has occurred in his family, or with respect to property devised or bequeathed, 122, 123, 130 et seq., 402. to what cases the statute extends, 130. conveyance, settlement, deed, or other act, by which estate or interest in property previously devised or bequeathed altered, but not wholly divested, 123, 131, 135,402. where provisions of instrument wholly inconsistent with previous de- vise or bequest, 123, 131, 135, 402. ' by Revised Statutes, will of unmarried woman revoked by subsequent mar- riage, 130. effect upon this statute of the law for the more effectual protection of the .property of married women, 131.~ implied revocation by ademption, 131, 132, 133, 134. Ei;pnBLioATioN OF, 135 et seq. provision of the statute respecting, 123-4, 135. revocation of a second will, which, by its terms, manifests intention to revive first will, itself a republication of first will, 135. codicil will amount to, 135. need not be annexed to or confirm will, 136. when annexation important, 135. referring inaccurately to will may republish it, 135. will not republished will, if it appear on the face of the codicil that it was not the intention of the testator to republish will, 135. will republish and render valid a will deficiently executed, 136. ■ consequence of republication not so important with respect to personalty, it was -with regard to realty before Revised Statutes, 136. codicil, executed after Revised Statutes, to will made previously, renders con- struction of will-aut)ject to provisions of Revised Statutes, 137. clxx INDEX. WILL — contimted EEPtTBLiOATiON ov-^contmued. republishing will ; will not be read in any way differently from mode in which it would have been read had testator died the moment after executing will, 131. i OF PROTIua WILLS. what wills must be proved in Surrogate's Courts, 138. of real estate, importance of proving since R. S., 139. what Surrogate's Court has jurisdiction to take proof of, 139. provisions of the statute, 139, 140. cases unprovided for by the statute, 140. surrogate's jurisdiction in those cases, 140. of personalty, valid by law of domioil, but not by law of place where made, may be proved in Surrogate's Court, 150. course of proceeding in Surrogate's Court, 140. OF PEOTING WILLS, OF INHABITANTS OF THE COUNTY, 141 et seq. of the prelvmma/ry proceedings, 141 et seq. who may apply, to have will proved, ] 41. &cta surrogate must ascertain by evidence on application, 141, provisions of the statute, 141. petition for proof to embody facts required, 143. to set forth heirs and next of kin of testator, 141, 143. who are heirs and next of kin, 143. must be under oath, 144. where married woman propounds will, husband must join in, 144. where person applying for proof is the only person interested in estate, 148. all parties in interest may unite in application, 148. proceedings in such cases, 148, no citation to issue, 148, 149. regulations and proceedings respecting minor heirs and next of kin, 141, liietseq., 148, 149. ' ' appointment of special guardian for minors, heirs or next of kin, having no general guardian, 141, 144 et seq., 148, 149. citation to be issued and served, 141, 145. directed to proper persons, 141, 145. who are the proper persons, 145. how directed, 145. as to married women, 146. as to minors, 145. where heir or next of kin has died since testator's death, 146. contents of, 146, 146. how served, 142, 146, 147. upon married woman, 146. persons residing in this state, 142, 146. out of this state, 142, 147. proof of service o^ 142, 147-8. on return day of, appearances and defaults to be entered, 148 . if not served on all to be served, matter to be adjourned, and second citation to issue, 141,' 148. need not be issued where all the parties in interest unite in application for proof of the will, 148-9. Proceedings for the proof, 149 et seq. on proof of service of citation, surrogate to cause witnesses to be examined before him, 149. proofs and examinations to be reduced to writing, 149. witnesses may be subpoenaed, 149. person having custody of will, may be subpoenaed to produce, 149. disobedience to subpoena, bow punished, 150. witnesses' fees, 150 and n. («). form of subpoena, 22, 150. any person interested in establishing will may intervene to promote proof, 150. must come in by petition, 150-1. legatee under will revoked bj^ codicil, may intervene, 151. prior will may intervene, 151, • INDEX. olxs Wll/L — continued, proceedings for the proof— continued. person intending to oppose proof, must appear before surrogate on return day of o tation, 151. of taking the testimony, 151 et seq. person opposing proof, if interest disputed, bound to show his right to contest, 15] where two or more wills propounded, proceedings consolidated, 151. opponent of will not obliged, in any stage of the proceedings, to define his objec tions, 151. of the necessary witmesses, 152 e{ seq. statute prescribing proof to be taken for establishment of will, 152, 161. two witnesses, at least, in what cases required, 152, 161. person contesting, may require examination of all, in what oases, 152, 16S where all the witnesses dead, insane, out of the state, or incompetent to tef tify, 153. proof of handwriting to be taken, and will admitted to probate as a wi! of personal estate only, 153. where one witness or more examined, and the others dead or out of thestate proof to be taken, 153. ' competency of subscribing witnesses to will, 114, 153, 164, 162, 860. proof of custody of will, 152, 154. not required in all cases, 154. oath to witnesses, 154, 155. testimony to be committed to writing, 155, 174. to be entered in book, 174. statute prescribes no form for taking, 155. of the examination of witnesses residing in the samie county with the swrogate, or in cm aa joining county, disabled from attending, 155 et seq. aged, sick or infirm witness in same county, surrogate to take his testimony at hi residence, 155, 161, 162. proceedings to obtain testimony of such aged, sick or infirm witness, residing ii another county, 155 to 158, 161. of the examination of witnesses residing out of the state, 1 5 8 to 1 6 1. surrogate may issue commission to take the testimony of, 24, 158. practice on taking out commission, 158 to 161. conimission returns, &c., to be filed, 160, 161. of the evidence on proving will, 161 et seq. proof requisite to establishment of will, 161. compliance with all the requirements of the statute must be shown, 162, 163. where attesting witnesses dead, &o,, or have forgotten facts, attestation clause ma; come in aid of proof, 163, 164. testimony may also be supplied from other sources, 164, 167. parties resisting probate may introduce any testimony to show will not valid 167. where the evidence of the attesting witnesses, or of one of them, shows a positivi non-compliance with the statute, will must be rqected, 165. testator must be shown competent to devise real estate, and not under restraint 161, 165 etseq. what restraint will invalidate will, 165. where legatee or devisee writes will, 118,. 119, 165 to 167. See supra Form and Language of Will. where testator blind or infirm, 53, 166. as to what shall operate as, and compose will of testator, 168. ambiguity upon/ocfeim of instrument, 168. parol evidence when to be admitted to explain, 168. undue insertions or omissions in wills, 169, 376. as to proof requisite of competency to devise real estate, 170. of the entries to he made by the surrogate in his minutes, 170, 171. form of record of will, 171. of the record ami probate of, a/nd the effect thereof, amd of recording the proceedings, 171 « seq. will proved to have certificate of proof indorsed on it, 171.. probate conclusive of validity of wiU, 172. exception, 172. record to be made in surrogate's books, 174. effect of, as Evidence, 174. if will be not established, testimony only need be recorded, 174. 52 clxxii INDEX. WILL — continued, dispoaal of, after proofj It 5. ■of the proving of wills of non-mhahitants, 175 et seq. jurisdiction of surrogate to take proof, 19, 175. relating to real estate, must be executed and proved in accordance with statute of this state, 176. prehminary proceedings, 176. petition, 176. citation, 176. witnesses and testimony, 176. relating to personal property, silMS of the property regulates jurisdiction, 177. none can be Recognized except such as has been or may be admitted to probate in this state, 177, made in foreign country, disposing of personal property here, must be proved where assets are, 177, 205. law of domioil determines validity of, 177. jurisdiction of Supreme Court to take proof of wills of non-inhabitants, 177 etseq. statutory provisions, 177, 205. record of will on proof in Supreme Court, 178, 205, 206. executed abroad, and witnesses to which reside abroad, may be proved on commission issued out of Surrogate's Court, 178-9. .proving and validity of wills of personalty, executed in this state by non-residents, 178. proving and vahdity of wills made by persons domiciled abroad, or executed out of this state, by persons not citizens of this state, 179, 180. proeedings in such oases, 181, 182. entries and orders to be made by surrogate, 181. certificate on will, 181. exemplifications, copies and records of wills, 183 etseq. exemplification of record of will only, without proofs, cannot be received in evi- dence, 183. ■of, previous to 1785, when to be received in evidence, 183. oii previous to 1830, when and how to be received in evidence, 183. surrogates and clerks of Supreme Court, to make exemplified copies, &o., 183. will of real estate, duly proved, may be recorded in any county, 183. exemplification of record may be also recorded in any county, 183, 184. clerk, on recording such will, to index it in indices of deeds, 184. . clerk's fees for recording, &o., 184. proving of nuncupative will, 184. See title Nvmcv/pative Will proceedings where aU the subsciribing witnesses a/re dead, insane or non-residents, 185 et seq. surrogate to take proof of handwriting, 185. such proof to be signed, &o., and deposited with surrogate, 185. in what case such proof, &o., to be received in evidence, 185. of the preliminary proceedings in such case, 185, 186. certificate at the end of the record, 185. of coTnpeMng production of will before swrogate for proof, 186. by subpoena duces tecum, 186. any person may deposit his will with surrogate, 184, n. (v). regulations respecting wills deposited, 184, n. (v). proving of, enures to benefit of all the executors, though they qualify at difierent times, 198. OONSTRXJOTION OF general rules of construction, 371 et seq. See titles OortstrucUon. Legaag. wills of persons dying domiciled abroad must be according to the law of the place where testator died domiciled, 377, 539,, 540. ' proceedings for revocation of prolaate of, on allegations, 591-595. See title AUegaUons. "WILL OF^PERSpNiL PROPERTT. See title WUl. probate of, taken by surrogate, conclusive, unless revoked or reversed on appeal, 41, 168, 172, 194. operates on all personal estate a man dies possessed of, 42. See title WiU. INDEX. clxxiii WILL OF EEAL ESTATE. See title WiU. surrogate's record of, proof of, can be received in evidence and is as effectual only as the original will would be if produced and proved, and naay in like manner be re- pelled by contrary proof, 41. formerly affected those lands only of which testator seized at execution of will, 42, 132, 136, 13T. in express terms of all testator's real estate, now, by statute, passes all real estate of which testator seized at death, 43, 13'7. construction and effect of the statute, 43, 44, 131. statute proceeds upon ground that in a general devise of jjpal'estate, testator has reference to real estate as it shall exist at his death, 43. real estate of a particular description or at a particular place, 43, 137. devise of, at a particular place, will not pass after-purchased lands at that place, 44, 131. residue of my estate will not pass after-purchased lands, 44. use of aU my real estate, will made before E. S., will not pass lands aequked after R. S., 44. creditor, when debt charged on land, competent witness to prove, 114. jurisdiction to prove previous to Revised Statutes, 131. under Revised Statutes, 138, 139. importance of proving since Revised Statutes, 139. proceedings on proving, 139 et seq. See titles WUl. Prcming WiHs. where testator non-inhabitant, 19, 115 etseq. must be executed and proved in accordance with statutes of this State, 115. proved before surrogate, may be recorded in any other county, 183, 184. record of proofs and examinations taken in relation to, by surrogate, where all sub- scribing witnesses are dead, insane or non-residents, 185. WITNESSES, surrogate has power to issue subpoenas to, and compel attendance of, from any part of the state, 22. to punish disobedience to subpoenas, and witnesses for refusing to testify, 22. may administer oaths to, in matters or causes pending before him, 23. foreign surrogate may issue commission to take testimony of, 24. surrogate cannot issue attachment against, for disobedience to a subpoena to bring him into court, forcibly, to testify, 31. See title Attachment. to will, subscription by testator, must be in the presence of, or testator must ac- knowledge same to, 59. acknowledgment must be to both at same time, 11, 18. subscription in presence of one, and acknowledgment in presence of the other, not allowed, 11. whether declaration that instrument is his will must be made by testator to, so that they may know the fact that it was so made ? 88, 95. statement by one to the other, in the presence of the testator, may be a de- claration, 96. only two necessary, 91. if more than two persons sign, defect in execution as to one, not mate- rial, 91. cannot sign their initials, must, sign their names, 98. one holding and guiding the hand of the other, however, sufficient, 99. making mark to name already written, sufficient, 99, 101. mark alone not sufficient, 102. » must sign their names at fhe end of the will, 102. what is a signing atthe end, 102. and testator must agree, as to the instrument, where it is to end, 103. usually sign at end of attestation clause, 104. . on a rigid construction of statute, conclusion of that clause not'the place designated for witnesses to sign, 105. signing by, at the end of the attestation clause, sanctioned by practice, 106. immediately after last line of will is the proper place to sign, 106. attestation clause may be appended and signed also, 106. duties of an attesting will, 104, 105, n. (/). each of, must sign his name at the end of will, at ihe regnest of the testator, 59i 106 et seq. Clxxiv INDEX. ■WITNESSES — eontimied. signing at the request of testator not material at what stage of execution request is made, 106. testator need not, in terms, request, 107. request to, may be implied, as well as expressed, 101. reading of will and attesting clause, may amount to a request, lOT. circumstances attending execution may estabhsh request, 108. request to, may be communicated by signs, &o., 108. may be made by testator answering question, 108. by one witness to the other, 108, 109, 110. when it may be presumed, 110. statute silent as to their signing, in the presence of testator, 110. constructive presence abolished, 111. not necessary they should sign, in testator's presence. 111, 112. where legatee or deTisee, A;c, and will cannot be proyed without his testi- mony, will not, on that aoooimt, inyalid, but legacy, &o., Toid, Hi, 153, 360,361. but if he would be entitled to share in the estate, in case will not proved, share saved to him, 114, 153, 162. creditor, when debt charged on land, competent, 114, 153, 162. effect of evidence of, as to the circumstances attending attestation, 114, 116, 162 to 165. maybe summoned by subpoena to prove will, 1491 150. disobedience of such subpoena how punished, 160. form of, 22, 150. fees of, on proving will, 150, andn. (n). how many must be examined on proving will, 152 et se^., 161. in case will contested, 152, 166. competency of, 163, 154, 162. oath to, 154, 156. aged, sick or infirm, residing in same county with surrogate, testimony how obtained, 165, 161. in another county, testimony how obtained, 156 to 158, 161j 162. residing out of the state, commission may issue to talce testimony of, 24, 158. practice on taking out commission, 158 to 161. - testimony of, other than subscribing, may be introduced to sustain or resist will, 163, 164, 167. examination of, on proving wills of non-inhabitants, lT-6. to nuncupative will, 121, 122, 184, 185. there must be at least two, 186. will embodied in their testimony, 185. probate will contain will, as made up from their statements, 185. there must be two attesting, 59, 60. must sign at the end at the request of the testator, 69, 60, 97. write opposite their names their places of residence, 69. person signing testator's name, must write his own name as, 69. penalty for non-compliance with either of these requirementSj $60, 59. liability to penalty will not excuse from testifying, 691 for testator, must write testator's, not his own name, 68. on accounting of executor or administrator, 476. testimony of foreign may be taken by commission, 475. can bepunished for contempt, for disobedieuce to subpoena, 30. eannot be arrested and brought forcibly into court to testify, 30. fees of, on proving wills, and by whom paid, 150. WRITS AND PROCESS, form of, issuing out of Surrogates' Courts, 24. to be in name of the people, 24. except where otherwise provided by law, 24. THE END. ^^:?^*»4-' I .