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CORNELL UNIVERSITY 
 
 JAM 7 1909 
 LAW LIBRABY. 
 
 Cornell University Library 
 KFI1344.NS6 
 
 Treatise on the practice In probate cqur 
 
 111 
 
 3 1924 024 669 115 
 
a Cornell University 
 J Library 
 
 The original of this book is in 
 the Cornell University Library. 
 
 There are no known copyright restrictions in 
 the United States on the use of the text. 
 
 http://www.archive.org/details/cu31924024669115 
 
A TREATISE 
 
 ON THE 
 
 PRACTICE IN PROBATE COUETS 
 
 IN THE 
 
 PEOBATB OF WILLS AND SETTLEMENT OF 
 ESTATES, 
 
 IN THE 
 
 STATE OF ILLINOIS, 
 
 WITH 
 
 FORMS OP WILLS, CODICILS, PETITIONS, OEDEKS, REPORTS, SETTLE- 
 MENTS, AND CLERKS' ENTRIES, USED IN COUNTY COURTS 
 IN THE ADMINISTRATION OP ESTATES. 
 
 By LEVI.NgRTH, Esq., 
 
 OF THE HEMlnrcouNTy BAH. 
 
 CHICAGO: 
 
 CALLAGHAN & COMPANY, 
 
 LAW PUBLISHERS. 
 
Entered according to the Act of Congress, in the year eighteen hundred and seventy-three, 
 
 By CALLAGHAN & CO., 
 
 In the office of the Librarian of Congress, at Washington, D. C. 
 
 ATWOOD & CULVER, PKlNTEKS AND STEREOTYPERS, 
 MADISON, WISCONSIN. 
 
PREFACE. 
 
 The following work was prepared to meet a want long felt by the Bar 
 of Illinois, a'nji by. all others connected with the settlement of estates. 
 The author'nis aimecfto bring together, systematically arrange, and clearly 
 state our local law applicable to those cases most likely to arise, in the 
 probate of wills and thi-gettlement of estates, and to make a work which 
 will be thoroughly usefoMo the legal profession and to others. Experi- 
 enced lawyers find it tediOTis to look up the law of wills and administra- 
 tion when they are compelled to examine the standard works upon those 
 subjects, and the provisions of the statutes, and the decisions of our courts 
 scattered through fifty-six volumes of our state reports; and younger 
 members of the profession can hardly have the patience to do so. The 
 great works by Jarman and Redfield contain much that is of no value to 
 a lawyer in Illinois. Having been prepared for the use of the bar in gen- 
 eral, and without any reference to the local laws of any state, they are 
 necessarily in some of the most important particulars insufficient to 
 satisfy our wants. Nevertheless, cases will frequently arise in which 
 those works will be found of the greatest value. It is not therefore 
 pretended that .they can be dispensed with ; for they cover much useful 
 ground that it would not be advisable to include in a treatise like this. 
 
 In arranging this work it was intended that subjects should be treated 
 of in the order in which they would naturally be presented for considera- 
 tion in the settlement of estates. 
 
 The several chapters upon the competency of testators to make wills, 
 and those upon contesting wills it is believed will be found highly useful 
 to the profession. 
 
 A good deal of attention has been bestowed upon the chapters relating 
 to the inventory and to the sale of real estate to pay debts; but not more 
 than their importance seems to warrant. 
 
 Each section of the statutes relating to Wills, Administration and the 
 Descent of Property, has either been copied or its substance stated, so that 
 no reference to those statutes in other books will be necessary. 
 
 A large number of forms, embracing the most of those likely to 'be use- 
 ful, will be found at the end of the volume ; and references to them in the 
 
IV PREFACE. 
 
 text, and from them to the text, have been carefully made. In preparing 
 these forms the author has freely borrowed from those commonly in use, 
 but has struck out much of what he conceived to be surplusage, and has 
 carefully conformed them to the provisions of the present statute. They 
 are also made as nearly uniform in style as possible. Proceeding upon 
 the principle that county courts have only inferior and special juris- 
 diction, each form, including those of clerk's entries, is intended to show 
 all jurisdictional facts. The forms of clerk's entries it is believed will be 
 found of great value to those officers. Upon a careful perusal of the 
 probate records of several counties, there appears to the author to be 
 the greatest imaginable confusion of ideas as to what they should contain, 
 and the manner of making them up. There seems to be no theory among 
 clerks concerning what is necessary to be shown by the record. A careful 
 clerk, of long experience, and fully acquainted with the theory of entries, 
 is of inestimable value to the public, and of great convenience to the 
 court. For want of such a clerk, some county judges have been com- 
 pelled to write out all of their orders at full length — those in reference to 
 a single estate often covering many pages — to be copied into the records 
 by the clerk. One would suppose that a clerk who deserves to hold his 
 office ought to be able to enter a sufficient order from the mere minutes of 
 the judge, except in cases requiring extraordinary consideration — and so 
 relieve that officer from the performance of duties not his own. After all, 
 it is advisable that the more important orders, such as those for the sale 
 of real estate, should be prepared by counsel, who are fully acquainted 
 with the facts, and, approved by the judge, as in courts of equity. It 
 would be inexcusable in a solicitor to leave the form of them to a clerk 
 who knows nothing of the facts, and is presumably unacquainted with law ; 
 and not less so would it be to impose this burden upon the judge. 
 
 In all old and wealthy communities questions connected with the 
 estates of deceased persons produce some of the most important litiga- 
 tion. Only a few years ago there were few wealthy estates in Illinois. 
 The inhabitants came here poor. They were generally young and had 
 not accumulated much property. Their pursuits were mainly agricultural, 
 and when one died, his personal estate rarely amounted to more than a 
 few hundred dollars, and his real estate generally reached no greater 
 value. But now our state is full of old people who have accumulated large 
 fortunes. In farming communities, estates of the value of fifty thousand 
 dollars are very common, and in towns and cities their value sometimes 
 reaches millions. All these accumulated riches must pass through the 
 hands of personal representatives under the supervision of county courts. 
 It is believed that in something less than every forty years — perhaps 
 nearer each thirty years — all the property of the country is subjected ta 
 administration. In this are involved the rights of widows, children, 
 creditors and legatees, the protection of which depends upon the legal 
 knowledge, vigilance and integrity of judges, personal representatives 
 and attorneys, if, therefore, measured by the amount of property in- 
 
PREFACE. V 
 
 volved, and the position of the parties interested in the settlement of 
 estates, it will appear, that the probate jurisdiction of county courts is of 
 much greater importance to the people than the civil jurisdiction of cir- 
 cuit courts. And what a responsibility does this devolve upon judges of 
 county courts. What a duty is theirs to guard the rights of widows, of 
 minor children, of foreign heirs and creditors. How much of vigilance, 
 how much of knowledge of law and of business, how much of integrity 
 does their position require ! 
 
 Nevertheless, men having large experience in business, declare that a 
 county judge has no need of any special knowledge of law, or experience 
 in the duties of his office. They look upon him as a kind of head book- 
 keeper, to examine and pass upon the correctness and form of mere 
 accounts. The prevalence of such opinions outside the bar of this state 
 is a reason why the office of county judge has, in perhaps a majority of 
 instances, been held by persons unlearned in law, and unacquainted with 
 any but the simplest duties of the office. In some counties it is notorious 
 that the county clerk performs the duties of both judge and clerk. But 
 when both are ignorant of law, how do the blind lead the blind ! In one 
 of the most wealthy and populous counties of the state, only a few years 
 ago, the county judge, a most reputable citizen, who had been a success- 
 ful farmer, and had held several unimportant offices in his town, ordered 
 the sale of lands to pay debts of an estate, without requiring the personal 
 representatives to file a petition for the order.* His honesty was a poor 
 substitute for legal knowledge, and the correctness of his motives could 
 not be given in evidence in support of the worthless title conveyed by the 
 administrator. 
 
 It is to be regretted that the legislature has shown a disposition to de- 
 grade the county courts. Whilst the Constitution of 1870, has given full 
 power to confer sufficient jurisdiction upon these courts to elevate them 
 to a dignity that would command all the requisite talent for the bench, 
 there has been a steady resistance to the extension of that jurisdiction, 
 and the incompetency of the present judges in some counties has been 
 assigned as a reason for that resistance ; as if that incompetency was not 
 an almost necessary result of the inferior jurisdiction and a consequent 
 inadequate and uncertain compensation for services, rather than that be- 
 cause the duties of the office are unimportant. Concurrent jurisdiction 
 with circuit courts might be extended to county courts in certain 
 cases, which would not interfere with probate business, for instance, 
 in dower, partition, and other cases of a similar character, and perhaps 
 in appeal causes. This increase of business would add to their dignity 
 and importance, and be a just reason for increasing the compensation 
 of county judges; and county courts would then command in every 
 county in the state all the talent requisite to the discharge of their duties. 
 Indeed, the increasing business of our circuit courts will drive the legis- 
 
 * In the case of Monahan v. Van Dyke, 27 111. 134, a similar blunder occurred. 
 
IV PREFACE. 
 
 text, and from them to the text, have been carefully made. In preparing 
 these forms the author has freely borrowed from those commonly in use, 
 but has struck out much of what he conceived to be surplusage, and has 
 carefully conformed them to the provisions of the present statute. They 
 are also made as nearly uniform in style as possible. Proceeding upon 
 the principle that county courts have only inferior and special juris- 
 diction, each form, including those of clerk's entries, is intended to show 
 all jurisdictional facts. The forms of clerk's entries it is believed will be 
 found of great value to those officers. Upon a careful perusal of the 
 probate records of several counties, there appears to the author to be 
 the greatest imaginable confusion of ideas as to what they should contain, 
 and the manner of making them up. There seems to be no theory among 
 clerks concerning what is necessary to be shown by the record. A careful 
 clerk, of long experience, and fully acquainted with the theory of entries, 
 is of inestimable value to the public, and of great convenience to the 
 court. For want of such a clerk, some county judges have been com- 
 pelled to write out all of their orders at full length — those in reference to 
 a single estate often covering many pages — to be copied into the records 
 by the clerk. One would suppose that a clerk who deserves to hold his 
 office ought to be able to enter a sufficient order from the mere minutes of 
 the judge, except in cases requiring extraordinary consideration — and so 
 relieve that officer from the performance of duties not his own. After all, 
 it is advisable that the more important orders, such as those for the sale 
 of real estate, should be prepared by counsel, who are fully acquainted 
 with the facts, and approved by the judge, as in courts of equity. It 
 would be inexcusable in a solicitor to leave the form of them to a clerk 
 who knows nothing of the facts, and is presumably unacquainted with law ; 
 and not less so would it be to impose this burden upon the judge. 
 
 In all old and wealthy communities questions connected with the 
 estates of deceased persons produce some of the most important litiga- 
 tion. Only a few years ago there were few wealthy estates in Illinois. 
 The inhabitants came here poor. They were generally young and had 
 not accumulated much property. Their pursuits were mainly agricultural, 
 and when one died, his personal estate rarely amounted to more than a 
 few hundred dollars, and his real estate generally reached no greater 
 value. But now our state is full of old people who have accumulated large 
 fortunes. In farming communities, estates of the value of fifty thousand 
 dollars are very common, and in towns and cities their value sometimes 
 reaches millions. All these accumulated riches must pass through the 
 hands of personal representatives under the supervision of county courts. 
 It is believed that in something less than every forty years — perhaps 
 nearer each thirty years — all the property of the country is subjected to 
 administration. In this are involved the rights of widows, children, 
 creditors and legatees, the protection of which depends upon the legal 
 knowledge, vigilance and integrity of judges, personal representatives 
 and attorneys, if, therefore, measured by the amount of property in- 
 
PREFACE. V 
 
 volved, and the position of the parties interested in the settlement of 
 estates, it will appear, that the probate jurisdiction of county courts is of 
 much greater importance to the people than the civil jurisdiction of cir- 
 cuit courts. And what a responsibility does this devolve upon judges of 
 county courts. What a duty is theirs to guard the rights of widows, of 
 minor children, of foreign heirs and creditors. How much of vigilance, 
 how much of knowledge of law and of business, how much of integrity 
 does their position require ! 
 
 Nevertheless, men having large experience in business, declare that a 
 county judge has no need of any special knowledge of law, or experience 
 in the duties of his office. They look upon him as a kind of head book- 
 keeper, to examine and pass upon the correctness and form of mere 
 accounts. The prevalence of such opinions outside the bar of this state 
 is a reason why the office of county judge has, in perhaps a majority of 
 instances, been held by persons unlearned in law, and unacquainted with 
 any but the simplest duties of the office. In some counties it is notorious 
 that the county Clerk performs the duties of both judge and clerk. But 
 when both are ignorant of law, how do the blind lead the blind ! In one 
 of the most wealthy and populous counties of the state, only a few years 
 ago, the county judge, a most reputable citizen, who had been a success- 
 ful farmer, and had held several unimportant offices in his town, ordered 
 the sale of lands to pay debts of an estate, without requiring the personal 
 representatives to file a petition for the order.* His honesty was a poor 
 substitute for legal knowledge, and the correctness of his motives could 
 not be given in evidence in support of the worthless title conveyed by the 
 administrator. 
 
 It is to be regretted that the legislature has shown a disposition to de- 
 grade the county courts. Whilst the Constitution of 1870, has given full 
 power to confer sufficient jurisdiction upon these courts to elevate them 
 to a dignity that would command all the requisite talent for the bench, 
 there has been a steady resistance to the extension of that jurisdiction, 
 and the incompetency of the present judges in some counties has been 
 assigned as a reason for that resistance ; as if that incompetency was not 
 an almost necessary result of the inferior jurisdiction and a consequent 
 inadequate and uncertain compensation for services, rather than that be- 
 cause the duties of the office are unimportant. Concurrent jurisdiction 
 with circuit courts might be extended to county courts in certain 
 cases, which would not interfere with probate business, for instance, 
 in dower, partition, and other cases of a similar character, and perhaps 
 in appeal causes. This increase of business would add to their dignity 
 and importance, and be a just reason for increasing the compensation 
 of county judges; and county courts would then command in every 
 county in the state all the talent requisite to the discharge of their duties. 
 Indeed, the increasing business of our circuit courts will drive the legis- 
 
 * In the case of Monahan v. Van Dyke, 37 111. 154, a similar blunder occurred. 
 
VI PKEFACE. 
 
 lature to extend the jurisdiction of county courts within a few years, or to 
 provide other courts, for the purpose of relieving the circuit courts. 
 
 But whatever may be said upon the question of jurisdiction, the fact 
 will remain that, in the case of county judges, as in that of all other pub- 
 lic officers, it is simply shameful for them to accept the office without a 
 previous reasonable preparation for its duties, and an honest effort after- 
 wards to fully understand and faithfully and intelligently discharge those 
 duties, whether sufficiently compensated or not. No thoroughly honest 
 man would accept or retain an office under other circumstances. 
 
 Kewaneb, Sept. 39, 1873. 
 
TABLE OF CONTENTS. 
 
 Section. 
 
 Oh. 1. Definitions, 1 
 
 2. Subject of testamentary disposition, ... 6 
 
 3. Execution of wills. 
 
 1. Persons capable of executing wills, - - 8 
 
 2. Persons incapable of executing wills from 
 
 mental defects, 16 
 
 4. Execution of wills, codicils and nun-cupative wills, 34 
 
 5. Revocation of wills, 60 
 
 6. Construction of wills, 82 
 
 7. Eemedy where there is a reasonable doubt of the 
 
 proper construction — Rules of evidence, - - 108 
 
 8. Mistake — Power of equity to correct, - - 125 
 
 9. Alteration of the law — Its effect on the settlement 
 
 of estates, 130 
 
 10. Of proving and contesting wills. 
 
 1. Jurisdiction — Lost will — Witnesses on ap- 
 
 peal, 132 
 
 2. Of the witnesses and the sufficiency of proof, 155 
 
 11. Conclusiveness of probate in the county court, in 
 
 collateral actions, 172 
 
 12. Appeals from the county court allowing or refus- 
 
 ing probate, 173 
 
VU1 TABLE OF CONTENTS. 
 
 Section. 
 Ch. 13. Bills in chancery to contest the validity of wills, - 177 
 
 14. Extrinsic evidence to establish fraud and undue 
 
 influence, .... - 200 
 
 15. Effect of wills proved and recorded here, and of 
 
 foreign wills proved abroad and recorded here, 205 
 
 16. Forms of wills, codicils and nun-cupative wills, - 209 
 
 17. Of the issuing of letters testamentary, - - - 216 
 
 18. Administrators to collect, 227 
 
 19. Foreign executors and administrators, - - 233 
 
 20. Appointment of administrators, ... - 234 
 
 21. Public administrators — Their appointment and 
 
 duties, 247 
 
 22. Kevocation of letters and requiring new bonds, - 253 
 
 23. Of the inventory, 271 
 
 24. Of appraisers and their duties, - - - - 313 
 
 25. Award to the widow or children — Widow's selec- 
 
 tion, 317 
 
 26. Of the sale of personal property, - - - 328 
 
 27. Partnership property and effects — Eights and 
 
 duties of surviving partners, .... 340 
 
 28. Claims against estates. 
 
 1. Of proving them — "What are legal claims, - 348 
 
 2. Classification of claims, .... 383 
 
 29. Limitations. 
 
 1. Special limitation of two years, - - - 386 
 
 2. General law of limitations, ... - 398 
 
 30. Forms of judgments, 401 
 
 31. Collection of assets, 408 
 
 32. Of the recovery of damages for causing death by 
 
 negligence, - 429 
 
 33. Of waste by the widow, .... 433 
 
TABLE OF CONTENTS; .IX 
 
 Section. 
 Ch. 34 Eights and duties of administrators respecting real 
 
 estate, 434 
 
 35. Specific performance by the personal representative 
 
 of contracts to convey real estate, - - - 436 
 
 36. Sale of real estate by executors under a power con- 
 
 tained in a will, and leases and mortgages to 
 pay debts, 438 
 
 37. Creditors' lien on lands of the deceased, - - 445 
 
 38. Sale of real estate by order of court to pay debts. 
 
 1. Sale to pay purchase money due on lands, - 449 
 
 2. Sale of lands by order of the court to pay 
 
 debts generally, .... 452 
 
 3. Concerning dower in case of sale of lands to 
 
 pay debts — Homestead exemption, 512 
 
 39. Eenunciation of will by the widow or surviving 
 
 husband, 531 
 
 40. Descent of property, 533 
 
 41. Settlement and distribution, .... 534 
 
 42. Marshalling assets, 555 
 
 43. Lapsed legacies, 565 
 
 44. Of devastavits by executors and administrators, - 572 
 
 45. Powers of county courts — Clerks and sheriffs' 
 
 duties, 575 
 
 46. Appeals, writs of error and certiorari, - - - 578 
 
 47. Miscellaneous, 581 
 
 48. Gifts mortis causa, 585-589 
 
TABLE OF OASES CITED. 
 
 
 Page. 
 
 Abbott v. Massie, 
 
 - 52 
 
 Adams v. Adams, 
 
 - 255 
 
 v. Field, 
 
 - 16 
 
 v. Smith, 
 
 141 
 
 v. Winne, 
 
 31 
 
 Alexander v. Tama, - 
 
 - 205 
 
 A Ilea v. Pub. Admin., 
 
 88,92 
 
 Allison v. Allison, - 17, 70, 71 
 
 Alwood v. Ruckman, 143, 144 
 
 Anderson, in r.e, - - 113 
 
 Andrews v. Black, 64, 65, 66, 71 
 
 v. Bishop, - - 267 
 
 Andrus v. Doolittle, - 139 
 
 Apperson v. Cottrell, . - 62 
 Arcularius v. Geisenhainer, 33, 38 
 
 Armstrong T. Moran, - - 270 
 
 Arndt v. Arndt, - 15 
 
 Atkin v. Merrill, - - - 241 
 
 B. 
 
 Bailey, in re, - - - - 16 
 
 v. Stiles, - - 62 
 
 v. West,- - - -242 
 B'k of Montgomery v. Plamett, 182 
 
 Banks v. Goodfellow, - - 8 
 
 Barber v. Thurman, - 184 
 
 Barker v. Talcott, - - - 201 
 
 Barrett v. Buxton, - 9 
 
 v.Wright, - - 47 
 
 Beaubien v. Cicotte, - - 50, 92 
 
 Beck v. Gilles, - - 31 
 
 Beesley v. Spencer, - 186 
 
 Bentham v. Wiltshire, - - 209 
 
 Bettison v. Bromley, - 19 
 
 Bevans v. Briscoe, 141 
 
 Bibb v. Thomas, - - 26 
 
 Birdsall v. Hewlett, - 269 
 
 Blakey v. Blakey, - - 89 
 
 Blanchard v. Nestle, 11, 12 
 
 Blaney v. Sargent, - - 79 
 
 Blatner v. Weis, - - 19 
 
 Blount v. Burrow, - 
 Blue v. Blue, 
 Bogert v. Furman, - 
 Bond v. Seawell, 
 Boyd v. Eby, - 
 Booth v. Patrick, 
 Bosley v. Bosley, 
 Bottsford v. O'Connor, 
 Bourne v. Bourne, 
 Bowers v. Porter, 
 v. Smith, 
 Bowles' Heirs v. Rouse, 
 
 Page. 
 278 
 
 - 245 
 141 
 
 15 
 
 8 
 
 139 
 
 31 
 220 
 
 - 141 
 41 
 
 - 44 
 120,J25, 
 
 221,226,229,230,232 
 
 Boyd v. Eby, - - 8 
 
 Boylan t. Meeker, 19, 50, 92 
 
 Boylesv McMurphy, 98,99 
 
 Bradford v. Jones, - 191, 192 
 
 Bradley v. Bradley, • 48 
 
 Bradish v. Schenck, - - 143 
 
 Bradshaw v. Thompson, - 52 
 
 Bratney v. Curry, - 90 
 
 Brearley v. Norris, - - 76 
 
 Bree v. Bree, - 221, 230 
 
 Bridgman v. Green, - - - 90 
 
 Brooks v. Barrett, - 81 
 
 Brown v. Anderson, - 181 
 
 v. Fisher, - 5 
 
 v. Higgs, - - 269 
 
 v. Keller, - - 245 
 
 v. Lyon, - - 38 
 
 v.Parker, - - 172,200 
 
 v. Pitney, - 98, 99 
 
 v. Saltonstal, - 53 
 
 v. Selwyn, - 44 
 
 Brownfield v. Brownfield, 63 
 
 Bull v. Griswold, - . -142 
 
 v. Harris, - - . 191 
 
 Burgher v. Potter, ... 208 
 
 Burnap v. Dennis, 160 
 
 Burnham v. Susselle, - - 145 
 
 Burnside v. Twitchell, - - 149 
 
 Butler v. Butler, 35, 268 
 
 v. Page, - . 149 
 
 Burson v. Goodspeed, - - 214, 
 
 221, 226, 244 
 
Xll 
 
 TABLE OF CASES CITEP. 
 
 c. 
 
 Page. 
 
 Cabeen v. Mulligan, - - 246 
 
 Calvert v. Davis, - - - 87 
 
 Campbell v. Strum, - 267 
 
 Carle v. Underbill, - 70 
 
 Carpenter v. Heard, - - 39 
 
 Cary v. Taylor, - 55 
 
 Cawtborne v. Weisinger, - 182 
 
 C. B. & Q. R R. Co. v. Triplett, 204 
 
 Cbaffln v. Kimball's Heirs, - 227 
 
 Chandler v. Ferris, - 86 
 
 Cbanet v. Villeponteaux, - 210 
 
 Cbapman, in re, - 21 
 
 Cbase v. Lincoln, - - - 72 
 
 v. Redding, - - 278 
 
 Chatterton v. Saul, - 148 
 
 Child v. Gratiot, - 121 
 
 Choteau v Jones, - 139, 205 
 
 Christmas v. Mitchell 5 
 
 Christy v. McBride, - 195 
 
 Chrystie v. Pbyfe, - - 33, 35, 37 
 
 Church v. Jewett, - 193 
 
 Cipperly v. Rhodes, - - 246 
 
 City of Chicago v. Major, - 203 
 
 Clarke v. Lear, - - 14 
 
 Clark v. Bogardus, - 48 
 
 v. Burnside, - - 149 
 
 v. Fisher, - 88 
 
 v. Hogle, - 185 
 
 in re, - - - - 16 
 
 Clemens v. Patterson, - 63 
 
 Ciinefelter v. Ayres, - 109, 210 
 
 Coffin v. Coffin, - - 70 
 
 Colt v. Colt, - - - 269 
 
 Colvin v. Warford, - - 19, 28 
 
 Comstock v. Comstock, - - 32 
 
 v. Hadlyme, - 10, 50 
 
 Conklin v. Edgerton, - - 113 
 
 Converse v. "Wales, - - 51 
 
 Cook v. Holmes, - - 38 
 
 v. Whiting, - - - 150 
 
 Cooke in re, - - 28 
 
 Cookson v. Hancock, - - 32 
 
 Cooper's Estate, - 31 
 
 Corrigan v. Kiernan, - 38 
 
 Cost v. Rose, . - - 227 
 
 Cox v. Godslave, - 142 
 
 v. Harris, - - - 269 
 
 v. McBurney, - 141 
 
 Craft v. Craft, - 17, 73 
 
 Creel v. Kirkham, 137, 142, 200 
 
 Cromer v. Pinkney, - 35 
 
 Cromine v. Tharp, - 226, 231 
 
 Crosbie v. Macdoual, - 21 
 
 Crosby v. Loop, - - 143 
 
 Cumberland v. Codrington, 268 
 
 Cumin ings v. People, 123 
 
 Cuthbert v. Lemprerie, - - 41 
 
 Cutter v. Thompson, 
 Cutts v. Haskins, 
 Curry v. People, 
 
 D. 
 
 Dan v. Brown, - 
 Davis v. Rogers, 
 
 v. Sigourney, - 
 Davenport v. Farrar, 
 Dawes v. Swan, 
 Day v. Day, 
 
 v. Graham, 
 Debow v. Colfax, 
 Deere v. Chapman, 
 Deltzer v. Scheuster, 
 Den v. Sparks, 
 Dennis v. McCagg, - 
 Dennison's Appeal, - 
 Detrick v. Migatt, - 
 Dickey v. Malachi, - 
 Dickie v. Carter, 
 Dickinson v. Purvis, 
 Dimmock v. Bixby, - 
 Dixon v. Buell, - 
 
 Page. 
 
 - 205 
 
 - 75 
 -271 
 
 - 25, 26 
 50 
 
 - 61 
 
 - 241,334 
 • 38 
 
 - 4 
 235 
 
 . 141 
 
 - 245 
 . 98, 230 
 
 210 
 
 - 236 
 
 - 51 
 220 
 
 - 61 
 
 - 15, 86 
 
 - 270 
 
 - 44 
 
 - 175 
 v. Nicholls, - 142, 143, 144 
 
 Doe v. Fallows, - - - - 199 
 
 Doe d. v. Allen, ... 49 
 
 v. Perkes, - 49 
 
 v. Stenlake, - - 41 
 
 Doe d. v. Westlake, - - 49 
 
 Le Chivalier v. Huthwaite, 52 
 Dominick v. Michael, - - 113 
 Dooleyv. Crist, - - 148 
 
 Dorman v. Lane, - - 229 
 
 v. Tost, - 220,229,230 
 Dornick v. Richenbach, - 11 
 
 Duffield v. Duffield, - 32 
 
 v. Robeson, - - 87 
 Duffin v. Abbot, 111, 122, 134, 201 
 Duncan v. Duncan, 21, 64, 65, 66, 73 
 Duke of Marlborough v. Godol- 
 
 phin, - - 39 
 
 Durham v. Heaton, - - 200 
 
 Dwight v. Newell, - 161 
 
 Dyer, in re - - - - 16 
 
 E. 
 
 East v. Cook, - - . .39 
 
 Elliott's Will, - - 11,86 
 Ellis v. Essex Merrimac Bridge, 41 
 
 Ennis v. Smith, - . 33, 38 
 
 Enos v. Capps, - - . 227 
 
 Evans v. Dallow, - - 30 
 
 v. Evans, - 31 
 
 Everitt v. Everitt, - - 62 
 
 Ex parte Hornby, - 3<j 
 
TABLE OF OASES CITED. 
 
 Xlll 
 
 R 
 
 Fairchild v. Bascomb, 
 Farrar v. Ayres, 
 Farrell v. Patterson, 
 Farwell v. Jacobs, - 
 Featherly v. Waggoner, 
 Ferguson v. Hunter, 
 Ferren v. Myrick, - 
 Finch v. Ragland, - 
 
 v. Sink, 
 Fisher v. Dixon, 
 
 in re, 
 Fitzgerald v. Davlin, 
 
 Page. 
 92 
 
 - 47 
 78,94 
 
 113 
 
 - 61 
 74, 76, 77 
 
 178 
 
 - 138 
 
 - 226 
 147, 148, 149 
 
 - 31 
 - 223,225 
 
 v. Glancy, 120, 220, 230, 
 
 272 
 
 Florney v. Florney, 
 Flynn v. Owen, 
 Foltz v. Prouse, 
 Ford v. Ford, - 
 Forsythe v. Price, - 
 Frank v. Baxter, 
 Freeman v. Freeman, 
 Fridley v. Murphy, - 
 
 G. 
 
 - 90 
 
 - 15 
 129, 143, 205 
 
 29 
 
 - 142 
 
 - 243 
 
 - 22 
 
 - 227 
 
 Gardner v. Ladue, - 
 
 - 94 
 
 Gaunt y. Tucker's Ex'rs, - 
 
 - 278 
 
 Gee v. Gee, 
 
 - 141 
 
 Gervis v. Gervis, 
 
 - 266 
 
 Gibbons v. Johnson, 
 
 - 193 
 
 Gibson v. Roll, - 
 
 225, 226 
 
 Giddy v. Butler, 
 
 - 210 
 
 Gilchrist v. Rea, 
 
 113 
 
 Giles v. Dyson, - 
 
 - 138 
 
 Gillett v. Gove, - 
 
 - 52 
 
 Goffv. O'Connor, - 
 
 - 148 
 
 Gold v. Bailey, - 
 
 178,258 
 
 Goltra v. People, 
 
 - 204 
 
 Gombault v. Pub. Adm'r, 
 
 - 9 
 
 Goode v. Goode, 
 
 54 
 
 Goodright v. Glazier, 
 
 - 28 
 
 Goodtitle v. Wellford, 
 
 - 19 
 
 Goudy v. Hall, 221, 222, 225, 226, 227 
 
 Gould v. Winthrop, 
 
 - 267 
 
 Graff v. Fitch, - 
 
 - 143 
 
 Graham v. Davidson, 
 
 - 138 
 
 Grattan v. Grattan, 
 
 259 
 
 Green v. Massie, 
 
 143 
 
 Greene v. Grimshaw, 
 
 176 
 
 Greenwood v. Spiller, 
 
 - 141 
 
 Gridley v. "Watson, - 
 
 205 
 
 Grignon's Lessee v. Astor, 
 
 222 
 
 H. 
 
 
 Hale v. Takelove, 
 
 21 
 
 Hall v. Irwin, 
 
 - 210 
 
 120, 
 
 Hall v. Warren, 
 Halliday v. Dixon, 
 Hambrookev. Simmons, - 
 Hamilton v. Gilman, 
 Hanna v. Yokum, 
 Hapgood v. Houghton, 
 Happy's will, 
 Harleston v. Corbit, - 
 Harrington v. Budd, 
 Harrison v. Nixon, - 
 v. Rowan, - 
 Hart v. Tulk, 
 Harwood v. Goodright, 
 Hatcher v. Millard, - 
 Hawn v. Banks, 
 Hay-wood v. Haywood, 
 Headley v. Kirby, 
 Helms v. Franciscus, 
 Henchy v. City of Chicago, 
 Hensman v. Fryer, - 
 Herdman v. Short, - 
 Herlakenden's Case, 
 Hess's Appeal, 
 Heuser v. Harris, 
 Hewardv. Slagle, 
 Hewes v. Dehon, 
 Hight v. Wilson, 
 Hildreth v. Shillinger, 
 Hills v. Hills, 
 Hiscocks v. Hiscocks, 
 Hitt v. Ormsbee, 
 Hix v. Whittemore, - 
 Hobbs v. Knight, 
 Hobson v. Paine, 
 Hoff's Appeal, - 
 Holland v. Ferris, 
 Holloway v. Galloway, 
 
 v. Holloway, - 
 Holmes v. Custance, 
 Holms v. Williams, 
 Hone v. Van Schaic, 
 • Hopkins v. McCann, 
 Hornby, ex parte, 
 Hubbard v. Hubbard, 
 Hughes v. Hughes, - 
 Huguenin v. Basley, 
 Humphreys v. Humphreys, 
 Hunt v. Hunt, - 
 
 v. Hart, ... 
 Hunter v. Bilyeu, 
 Hyatt v. Pugsley, 
 
 I. 
 
 Idley v. Brown, 
 Iverson v. Loberg, 
 
 Page. 
 
 - 36 
 
 - 41 
 
 - 278 
 
 - 227 
 
 - 173 
 
 - 177 
 
 - 62 
 
 - 50 
 
 - 31 
 33,38 
 
 11 
 39 
 
 - 28 
 
 - 24 
 39 
 55 
 
 278 
 
 - 269 
 204 
 
 - 266 
 225, 227 
 
 . 141 
 
 - 4 
 
 - 2 
 258, 274 
 
 - 267 
 
 - 15 
 
 - 29 
 
 - 278 
 
 - 52 
 
 - 227 
 
 9 
 
 28 
 
 111", 229 
 
 - 267 
 
 29 
 82 
 70 
 52 
 42 
 
 - 37 
 174, 229 
 
 - 36 
 79,81 
 
 91 
 90 
 
 - 143 
 
 39 
 
 52 
 
 193 
 
 36 
 
 29 
 220 
 
XIV 
 
 TABLE OF CASES CITED. 
 
 Page. 
 
 Jackson v. Brownell, . 144 
 
 v. Durland, - . 20 
 
 v. Hasbrouck, - - 61 
 
 v. Hollo way, - - 27 
 
 v. Jackson - 61 
 
 v. Laquere, - . 33 
 
 v. Roberts, - - -269 
 
 v. Russell, - - 62 
 
 v. Swett, ... 62 
 
 v. Wood, - - . 20 
 
 ex dem. v. Walden, - 237 
 
 Jarvis v. Buttrick, - - 52 
 
 Jeffries v. Decker, - - - 223 
 
 Jenckes v. Court of Probate, 87, 88 
 
 Jennings v. Smith, - 98, 99 
 
 Jennison v. Hapgood, - 177 
 
 Johnson v. Baker, - - - 178 
 
 v. Brailsford, - - 26 
 
 v. Child, - 268 
 
 v. Gillette, 184, 191 
 
 Johnston v. Maples, - 194, 272 
 
 Jones v. Newman, - - - 49 
 
 Judy v. Kelley, 176, 184, 192, 198 
 
 K. 
 
 Keefer v. Mason, - - 116, 172 
 
 Kelley v. Austin, - - 148 
 
 Kelso v. Dickey, - - 40 
 
 Keith v. Perry, - - 41 
 
 Kingsbury v. Scovill, . 55 
 
 Kinleside v. Harrison, - - 11 
 
 Kinne v. Kinne, - 10, 50 
 
 Kitchell v. Burgwin, - 246, 247 
 
 Knapp v. Grass, - 246 
 
 Kruse v. Steffens, - - 201, 257 
 
 Kurtz v. Hibner, - - 45 
 
 Ladd v. Griswold, - - 165 
 
 Lambert in re, - - 28 
 
 Landis v. Landis, - - 92 
 Langworthy v. Baker, 120, 125, 181, 
 212, 220 
 
 Lattimore v. Simmons, 145, 186 
 
 Leavens v. Butler, 38 
 
 Lechmerev. Charlton, - 267 
 
 Le Port t. Delafield, 113 
 
 Lemayne v. Stanley, 16 
 
 Leming's Estate, - . -267 
 
 Lepage v. McNamara, - 38 
 
 Lessley v. Lessley, 98 
 
 Lilford v. Keck, - 268 
 
 Page. 
 Lloyd v. Malone, - - 221,236 
 Lockwood v. Mills, - 286, 237 
 
 Long v. Duval, ... 53 
 
 v. Short, - - - 266 
 
 Lord Trimlestown v. D'Alton, - 90 
 Losee v. Losee, - - 19 
 
 Love v. Johnson, - - - 92 
 Lowe v. Joliffe, - - - 19 
 
 Lyman v. Vanderspiegel, - - 269 
 
 M. 
 
 Maloney v. Scanlan, - 48, 49 
 
 Makepeace v. Moore, 161, 199 
 
 Mann v. Mann, - - 44, 45, 52 
 
 Marsh v. People, 129, 133, 134, 135, 
 
 201 
 
 Martin v. Martin, - - 139 
 
 Mason v. Bair, - - - 174 
 v. Penn, 148, 149, 150 
 
 v. Tiffany, 165, 182 
 
 Mather v. Prazier, - - - 148 
 
 Matter of Anderson, - - 113 
 
 Place, - - 113 
 
 May v. Enslin, - - - - 40 
 
 McAdam v. Walker, - 13 
 
 McAvoy's Estate, in re, - - 78 
 
 McDaniel v. ^Crosby, - 92 
 
 McDaniel's Will, - 12 
 
 McDonald v. Nielson, - - 234 
 
 McDonough v. Laughlin, - - 20 
 
 McDowell v. Cochran, 139, 205 
 
 McCallum v. Chidester, - 265 
 
 McClay v. Norris, - - 227 
 
 McConnell v. Gibson, - 236 
 
 v. Hodson, - 161 
 
 v.Smith,- - 220,236 
 
 McCormick v. Wilcox, - - 247 
 McCoy v. Morrow, - 181, 212, 214 
 
 McClure v. Evans, - 44 
 
 McClurken v. McClurken, - 236 
 
 McGlensey's Appeal, - - 178 
 
 McKeehan v. Wilson, - - 42 
 
 McLaughlin v. Johnson, - 149 
 
 McMahon v. Ryan, - - 87 
 
 McMasters v. Blair, - 78 
 
 McMurphy v. Boyles, - . 98 
 McNaughton v. McNaughton, 31 
 
 McNinch v. Charles, - - 50 
 
 McNitt v. Turner, - 220, 221 
 
 M'Adam v. Walker, - 13 
 
 M'Allister v. Tate, - 44 
 
 M'Taggart v. Thompson, - 31 
 
 Meach v. Meach, - - 277, 278 
 
 Means v. Means, - 50, 92 
 
 Mellish v. Mellish, - - 45 
 
 Merryman v. Merryman, - 41 
 
TABLE OF CASES CITED. 
 
 XV 
 
 Page. 
 Miles v. Dyer, - - - - 40 
 
 v. Wheeler, - - 336, 288 
 Mills v. Marshall, - - -254 
 Miller v. Jones, - - - 164 
 
 v. March, - - - 246 
 
 v.Miller, ... 86 
 
 v. Traverse, - - - 52 
 Minkler v. Minkler, - - 29 
 
 Minor v. Mead, - - - - 139 
 Mitchell v. Pease, - - - 278 
 Moggrirtge v. Thackwell, - 269 
 Moline W. P. M. Co. v. Webster, 
 
 174, 175, 193, 221, 229, 231 
 Monahan v. Vandyke, 219, 226, 232 
 Moody v. Fry - - - - 139 
 Moore v. Dunning, - - - 247 
 
 v. Ellsworth, - - 213, 214 
 
 v. Moore, 
 
 v. Neil, - 
 
 v. Rogers, 
 
 v. Smith, 
 Morgan v. Varick, 
 Morral v. Sutton, 
 Morris v.Hogle, 219,223,225,226, 
 
 230 
 Morton v. Perry, 
 Mosby v. Corbm, 
 Moses v. Murgatroyd, 
 Mosley v. Masseyt 
 Mostinger v. Coleman 
 Mott v. Palmer, - 
 Mowry v. Silber, 
 Myatt v. Myatt, - 
 
 v. Walker, 
 Mytton v. Boodle, - 
 
 225, 226, 233 
 175 
 
 - 150 
 
 - 149 
 
 42 
 
 52 
 42 
 
 - 141 
 
 39 
 
 - 174 
 150 
 
 - 70 
 121, 128 
 
 - 82 
 
 - 40 
 
 N. 
 
 Nappcr v. Short, - - 227 
 Neel v. Potter, - - -51,88,92 
 Nelson v. McGiffert, 29, 61 
 Newman v. Willetts, - - 95 
 Nicholas v. Adams, - 276, 278 
 Neubrecht v. Santemeyer, 246, 26i 
 Newburg v. Newburg, - - 45 
 Newhall v. Turney, - - 134, 201 
 Norris v. Beyea, - - - 34 
 Nowell v. Nowell, - - -181 
 Nutt v. Nutt 54 
 
 0. 
 
 O'Brien v.Herney, . - -39 
 
 O'Connor v. O'Connor, - - 169 
 
 O'Neall v. Parr, . 29, 87 
 
 Paoe. 
 
 Oglesby v. Gilmore, - - - 201 
 
 Onions v. Tyrer, - - - 27 
 
 Orndorfv. Hummer, - - 20 
 
 Orser v. Orser, ■ - - - 73 
 
 Osgood v. Lovering, - - 41 
 
 Owen v. Robbins, - - - 241 
 
 P. 
 
 Pahlman v. Graves, - - 175 
 
 v. Smith, - - - 209 
 Paine v. Hobson, - 122 
 
 Pancoa9tv. Graham, - - 92 
 Pardon v. Dwire, - - - 223 
 Parks v. Parks, - - 38 
 
 Parr re, 27 
 
 Patton v. Allison, - - 50 
 
 Payne v. Trappes, - - - 21 
 
 Peacock v. Haven, 178, 184, 190, 192 
 
 Peaslee v. Barney, - - ■ 139 
 
 Peck v. Cary, .... 70 
 
 v. Stevens, - - - 191 
 
 Pensonneau v. Blakeley, - - 236 
 
 Penton v. Robart, ... 141 
 
 People v. Admire, - - 261, 262 
 
 v. Lott, - 123, 131, 175, 229 
 
 v. Randolph, - - 123 
 
 v. White, 167, 182, 183, 192 
 
 Peyton v. Jeffries, - - 242, 248 
 
 Phelps v. Punkhouser, - 205, 206 
 
 Phillips v. Chamberlain, - - 45 
 
 Phipps v. Pitcher, - - 19 
 
 Piatt v. McCullough, - - To 
 
 Piggot v. Ramey, - - -261 
 
 Plenty v. West, - . . 32,41 
 
 Pond v. Bergb, - - 36, 40 
 
 Portwood v. Hunter, - . 24 
 
 Potter v. Potter, . . 82 
 
 v. Titcomb, - . -139 
 
 Potts v. House, .... 8 
 
 Powell v. Rich, . . 142 
 
 Prescottv. Prescott, - . 270 
 
 Price v. Paige, ... 52 
 
 v. Nesbit, . . . 183 
 
 v. Powell, . . - 28 
 
 Propst v. Meadows, - - 184, 190 
 
 E. 
 
 Ralston v. Wood, . . 861 
 
 Rankin v. Rankin, - . . 209 
 
 Ramsey v. Shelmerdine, - 32 
 
 Rapalye v. Rapalye, - . 267 
 
 Rappelyea v. Russell, . 177 
 
 Rathbun v. Dyckman, . . 36 
 
XVI 
 
 TABLE OF CASES CITED. 
 
 Page. 
 Raudebaugh v, Shelby, - - 70 
 Ray v. Virgin,. - - - - 161 
 Reed v. Johnson, . - . 143 
 Reel v. Reel, .... 50 
 Reitzell v. Miller, - 178,184,190 
 Remick v. Emig, . . 164, 165 
 Reynolds v. People, - - - 358 
 v. Wilson, - - 319,331 
 Rhame v. Lewis, - - - 199 
 Rhienbach v. Walter, . - 345 
 Rhoades v. Rhoades, • 3, 337 
 Rhodes v. Vinton, - - 39, 63 
 Rice v. Richardson, - - - 161 
 Ridout v. Dowding, - - -41 
 Rigg v. Wilton, - 73,77,81,83,91 
 Ringhouse v. Keever, 60, 343, 350 
 Robbins v. Butler, - - - 336 
 Roberts v. Trawick, - - 50 
 
 v. Phillips* 17 
 
 v. Rounds, 28 
 
 Robertson v. Phillips, - 150 
 
 Robinson v. Hutchinson, - 50 
 
 Rodwell v. Phillips, - - 141 
 
 Roe v.Taylor, - - 10,83,87 
 Rogers v. Rogers, - - - 366 
 Roseboom v. Hosier, - -310 
 Rosenthal v. Magee, - - 178 
 
 v. Renick, 174, 176, 313, 
 314, 339 
 Rowan v. Kirkpatrick, 134, 138, 195, 
 301, 257 
 Rowley v. Merlin, - - - 28 
 Rozier v. Fagan, - - - 239 
 Ryan v. Jones, - - 185, 193 
 
 Savage v. Winchester, 
 
 - 368 
 
 Schnebley v. Schnebley, - 
 
 - 243 
 
 Schnell v. City of Chicago, 
 
 111, 130 
 
 133, 326, 
 
 333, 335 
 
 Schneider v. Norris, 
 
 - 16 
 
 Sconce v. Whitney, 
 
 - 337 
 
 Scott v. Beecher, 
 
 267 
 
 v. Moore, 
 
 - 140 
 
 Sears v. Dillingham, 
 
 19,72 
 
 Sharp v. Pratt, 
 
 . 310 
 
 Shelley's Case, - 
 
 - 138 
 
 Shepard v. Carriel, 
 
 94, 113 
 
 v. Rhodes, - 138, 
 
 139, 183 
 
 Sherman v. Dutch, - 
 
 - 143 
 
 Shoemate v. Lockbridge, 
 
 305,321 
 
 330 
 
 134,301 
 
 Short v. Johnson, 
 
 v. Smith, - 
 
 - 37 
 
 Simons v. Simons, 
 
 - 31 
 
 Simpson v. Smith, - 
 
 - 36 
 
 Pagb. 
 
 Simpson re, - - - - 28 
 
 Skinner v. Newberry, 140, 343, 348 
 
 Sloan v. Johnson, - - - 301 
 
 Sloov. Pool, - 183,191,193,193 
 
 Small v. Allen, ... 85 
 
 v. Small, - - 85, 86 
 
 Smith v. Davis, - - - 138 
 
 v. Downey, - - - 377 
 
 v. Harris, - - - 16 
 
 v. McConnell, 140, 305, 206 
 
 v. McKee, - - -220 
 
 v. Moore, - - - 150 
 
 v. Price, - - 141, 142 
 
 v. Sherman, - 123 
 
 v. Smith, - - 29, 277 
 
 v.Taylor, ... 34 
 
 v. Tibbitts, - 8 
 
 Sorsby v. Vance, - - 38 
 
 Spencer v. Higgins, 53 
 
 Spencer's Case, - 142 
 
 Spong v. Spong, - - 266 
 
 Sponsler's Estate, - - 109 
 
 Standemire v. Standemire, 330 
 
 Stanley v. Stanley, - - - 45 
 
 Stebbin s v. Palmer, 133, 145, 1 86 
 
 Steele v. Magie, . 241 
 
 v. Price, - - 61 
 
 Stevens v. Van Cleve, - 11 
 
 Stewart v. Doughty, - - 143 
 
 Stillman v. Young, 181, 193, 205, 258 
 
 Stires v. VanRensselaer, 369 
 
 Stokes v. Tilly, - ... 38 
 
 Stone v. Clark, 173, 184, 191, 193 
 
 v. Rawlinson, - 161, 199 
 
 v. Wood, 173, 174, 185, 205 
 
 306, 329 
 
 Stose v. Stose, - - - 134, 301 
 
 Stow v. Kimball, 320, 221, 224, 226 
 
 232, 233, 334 
 
 v. Steel, - - - 341 
 
 Strawn v. Strawn, 155, 241, 343 
 
 Stribling v. Ross, - - 341 
 
 Stubbs v. Houston, - . -31 
 
 Stukley v. Butler, . . 141 
 
 Sturgis v. Ewing, - 25, 55, 98, 350 
 
 Sumner v. Williams, . . 335 
 
 Sutton v. Sutton, - - -36 
 
 Swann v. Swann, - . . 367 
 
 T. 
 
 Tally v. Butterworth, - 34 
 
 Taylor v. Kelley, . . - 89 
 
 Taylor's Will, in re, - . 99 
 
 Thayer v. Wendell, - - . 235 
 
 The Mat. Co. Society v. Brown, 149 
 
 Thomas v. Adams, - - 185 
 
TABLE OF CASES CITED. 
 
 XVI 1 
 
 Page. 
 Thompson v. Brown, - 181 
 
 v. Thompson, - 14, 138 
 Thorn v. Watson, - . .192 
 Thornton v. Boyden, - - 245 
 Thorp v.McOullum, 235, 236, 237,845 
 Thrash v. Sumalt, - - - 182 
 Tomlin v. Hilyard, - - - 245 
 Tonnale v. Hall, - . . 20 
 
 Torgree v. Nutwell, - - - 269 
 Townsend v. Eadcliffe, - 122, 259 
 Townshend v. Townshend, - 8 
 Treadwell v. Cordis, - - 44 
 Trevor v. Perkins, - - - 267 
 Turney v. Gates, - - - 172 
 v. Turney, - - - 226 
 v. Toung, . . . 172 
 Tweddell v. Tweddell, - - 268 
 
 Tyler v. Tyler 25 
 
 Tyson v. Postlethwaite, - - 250 
 
 V. 
 
 VanCortlandt v. Kip, . . 20 
 VanVetchten t. Pearson, - - 39 
 Vansant v. Vansant, - - 247 
 Vansyclev. Richardson, 185, 206, 
 
 212 
 
 Vincent v. Bertrand, - . 161 
 
 v. Morrison, - - 235 
 
 Vaughan v. Burford, - - 71 
 
 w. 
 
 Walbridgev. Day, - - 205, 206 
 
 "Walden v. Gridley, - - - 236 
 
 Walker v. Craig, - 161, 199, 259 
 
 v. Fitts, - - - 143 
 
 v. Walker, 63, 64, 65, 79 
 
 Wallop v. Darby, - 41 
 
 Walmsley v. Milne, 149 
 
 Walsh v. Reis, - - - 242, 248 
 
 Walter v. Hodge - . 278 
 
 Walters v. People, - - 245, 246 
 
 Walton v. Walton, ... 30 
 
 Ward v. Brewer, - - - 232 
 Wardwell v. McDowell, - 109, 210 
 
 Page. 
 
 Wardwell t. Smith, - - 210 
 
 Washburn v. Sproat, - - 148 
 
 Waterman v. Whitney, - 49, 50 
 
 Welch v,Hoyt,- - - - 161 
 
 v. Wallace, - - 172, 191 
 
 Wells v. Bannister, - - - 148 
 
 v. Cowper, - - - 210 
 
 v.Miller, - 178,182,184, 
 
 191, 198 
 
 West v. Moore, - - - 142 
 
 Westcott v. Cady, ... 38 
 
 Westerloo v. Dewitt, - - 278 
 
 White v. British Museum, - 70 
 
 v. Dance, - - - 98 
 
 Whiting v. Nicholl, - 59 
 
 Whipple v. Foot, - - 143 
 
 Wickliff v.Robinson, 236 
 
 Wiggins v. Chance, - - 246 
 
 Wight v. Waullbaum, 111, 122, 129, 
 
 131, 172, 173 
 
 Wilkins v. Elleth, - - 199 
 
 v. Rosenthal, - - 125 
 
 Willard v. Bassett, - - 176,275 
 
 Wilson v. Bayley, - - - 40 
 
 v. Rosseau, - - 151 
 
 Willenborg v. Murphy, - - 200 
 
 Williams v. Cary, . - - 48 
 
 v.Conly, - - - 196 
 
 v. Moorehouse, - 139 
 
 v.TVley, - - 26 
 
 v.Wiggand, - - 205 
 
 Williams, in re,- - - 27,28 
 
 Wingate v. Pool, 173, 183, 185, 257 
 
 Winsor v. Pratt, - - - 16 
 
 Wisdom v. Becker, ... 110 
 
 Wolf v.Bollinger, - 26,27,65 
 
 Wood v. Vandenburg, - - 178 
 
 Woodstock v. Shillito, - - 40 
 
 Woolley v. Clark, - - - 183 
 
 Wright v. Dunning, - - - 246 
 
 v. Rose, - - - 141 
 
 Yates v. Cole, - - 54 
 
 Youndt v. Youndt ... 62 
 Young v. Robertson, - •■ - 35 
 
PROBATE PRACTICE. 
 
 CHAPTBE I. 
 DEFINITIONS. 
 
 § 1. Last will and testament. 
 
 2. " Will " and " testament" used synonymously. 
 
 3. Codicil, an alteration of the will. 
 
 4. Devise. 
 
 5. Bequest. 
 
 § 1. A last will and testament may be defined, as the dispo- 
 sition of one's property, to take effect after one's death, 1 and 
 under the statute of Illinois, it may include the appointment 
 of a guardian to have the custody and tuition of minor, un- 
 married children. 
 
 § 2. The words " will " and " testament " are used synony- 
 mously in relation to the testamentary disposition of property. 3 
 
 § 3. A codicil is an addition to or alteration of a testament. 
 It is sometimes defined as a supplement to a will. 2 
 
 § 4. The term devise is used to signify a testamentary dis- 
 position of real property. The term devise, properly and tech- 
 nically, applies only to real estate ; the object must therefore 
 be of that kind of property. 3 
 
 § 5. A bequest is a gift by will or testament; a legacy. 
 This word is sometimes, though improperly, used as synony- 
 mous with devise. The distinction between them is this . The 
 term bequest is applied more properly to a gift by will of a 
 legacy, that is, of personal property ; devise is more properly a 
 gift by testament of real estate. 4 
 
 1 Redfield Wills, § 2, pi. 1 and notes. 
 * Bouvier L. D. ; Shep. Touch. 399. 
 8 Bouvier, L. D. 
 
 4 Bouvier, L. D. This distinction is recognized in Shackleford et al. v. 
 Hall, 19 111. 212. 
 
SUBJECTS OF TESTAMENTARY DISPOSITION. [CH. II. 
 
 CHAPTEE II. 
 
 SUBJECTS OF TESTAMENTARY DISPOSITION. 
 
 § 6. Property of all kinds, and the custody and tuition of minor children. 
 7. General principles. 
 
 § 6. The subjects of testamentary disposition are specified 
 by section 1 of the statute of Illinois, entitled "Wills, to be " all 
 the estate, right, title and interest, in possession, reversion or 
 remainder, which he or she hath, or at the time of his or her 
 death shall have, of, in and to any lands, tenements, heredita- 
 ments, annuities or rents, charged upon or issuing out of them.; 
 or goods and chattels, and personal estate of every description 
 whatsoever." By section 5 of the statute entitled Guardians 
 and Wards, it is provided that a father may, by last will, dis- 
 pose of the custody and tuition of a child likely to be born, or 
 of any living child, being a minor and unmarried, during the 
 minority of such child, or for a less time ; but no such will shall 
 take effect to deprive the mother, during her life, of the cus- 
 tody and tuition of the child, without her consent, if she be a fit 
 and competent person to have such custody arid tuition. And 
 the mother, being sole or surviving the father of her child, may, 
 in like manner dispose of the custody and tuition of such child. 
 
 § 7. . Under the statute of Illinois, the power of the testator 
 to dispose of his estate is unlimited, both as to person and ob- 
 ject. He may pass by his own children and give it wholly to 
 others. He may prescribe the time and mode in which the 
 bounty shall be enjoyed, provided, that in doing so he contra- 
 venes no well recognized and admitted principle of public pol- 
 icy, or rule of right The next of kin, no matter how near the 
 ■degree of relationship, have no equitable right to their kins- 
 man's estate. A disposition of it by will, like that by deed, 
 determines its destiny. But in. case of intestacy ; the right of 
 the next kin to the estate becomes a legal one. 1 
 
 1 Rhoades ¥. Rhoades, 43 111. 239 ; Heuser v. Harris, 42 111. 425. 
 
"H. III.] PERSONS CAPABLE OF EXECUTING WILLS. 3 
 
 OHAPTEE IIL 
 
 EXECUTION OF "WILLS. 
 
 Part L Persons Capable of Executing Wills. 
 
 § 8. Statutory provisions. Married women. Aliens. 
 9. "When minors become of full age. 
 
 10. Ratification after becoming of full age. 
 
 11. Blind persons. Caution necessary to be observed. 
 
 12. Remarks by Mr. Jarman. 
 
 13. Incapacity not to be presumed from blindness alone. 
 
 14. Deaf and dumb persons. 
 
 15. Deaf, dumb and blind persons. 
 
 § 8. Section 1 of the statute of Wills provides, that every 
 male person of the age of twenty-one years, and every female 
 of the age of eighteen years, being of sound mind and memory, 
 shall have power to execute a' will. By this statute married 
 women are placed upon the footing of others in respect to wills. 
 And it is believed that alien friends may make a devise of 
 lands. By the English common law, alien friends might exe- 
 cute a will of personal property, but they were incompetent 
 to devise real estate. And alien enemies could not make a 
 valid will of personal estate, without a special license to reside 
 and transact business in the country during the continuance of 
 hostilities. 1 
 
 § 9. Males are of full age at twenty-one years, and females 
 at eighteen years, which age is completed on the day preceding 
 the anniversary of the person's birth : as, if a male was born 
 on the fourth day of July, 1850, he would be of full age to do 
 any legal act on the morning of the third day of July, 1871, 
 and a female born on the same day would be of full age on 
 the third day of July, 1868. The reason assigned is, that in 
 law there is no fraction of a day, and if the birth was on the 
 last second of one day, and the act on the first second of the 
 
 ' 1 Kedf. "Wills, § 3, pi. 2. 
 
4 BLIND PERSONS CAPABLE. [CH. IIL 
 
 day preceding twenty-one years after, then twenty-one years 
 would be complete ; and in law it is the same whether an act 
 is done upon one moment of the day or another." 
 
 § 10. It seems that the English text-writers lay down the 
 rule that the ratification by an infant after the testator arrives 
 at the age required to execute a valid will, although executed 
 before that age, renders it a valid instrument. " But it is very 
 questionable," says Eedfield, in commenting on this matter, 3 
 " how far a will, executed while the testator is under legal disa- 
 bility, can be regarded a valid instrument, from the mere fact 
 of its subsequent parol ratification by the testator, after the 
 removal of such disability. It would seem, upon principle, 
 that republication, according to the requirements of the statute 
 would be necessary. "We think it safe to lay down the rule, 
 that where a will is required to be in writing and executed 
 before witnesses, in order to its validity, and is thus executed 
 before the testator arrives at the required age, it cannot be ren- 
 dered valid, after the testator arrives at full age, except by 
 republication with all the prescribed formalities." 
 
 § 11. Blind persons labor under difficulties in making wills ; 
 but they are only slightly greater than if they could see, yet 
 could hot read. In either case the will should be carefully 
 read over to the person executing the same, in presence of the 
 attesting witnesses, in order to afford the fullest assurance that 
 the execution was understandingly done. 4 But the statute does 
 not require this. And it has been held, that a will drawn and 
 properly executed in presence of the testator, according to his 
 instructions, and signed by him, although not read, to or by 
 him, is a valid instrument. 6 
 
 § 12. But it has been wisely and thoughtfully said by Mr. 
 Jarman, " that, in proportion as the infirmities of the testator 
 expose him to deception, it becomes imperatively the duty, 
 and should be anxiously the care, of all persons assisting in 
 
 8 1 Bl. Com. 463 and note ; 2 Kent's Com. 233. 
 8 1 "Wills, §4, pi. 3. 
 
 4 Wms. Ex'rs, 18 ; Day v. Day, 2 Green's Ch. 549. 
 B Hess's Appeal, 43 Penn. St. 73. 
 
CH. III.] BLIND PERSONS. 5 
 
 the testamentary transaction, to be prepared with the clearest 
 proof that no imposition has been practiced." * 
 
 § 13. Blindness alone, whether congenital or accidental, has 
 never been regarded as affording any ground for presuming 
 mental incapacity to transact business, or make a will under- 
 standing^, but only as imposing upon those who assume to 
 establish such acts, on the part of persons laboring under such 
 defects, greater watchfulness in the transaction, and a corres- 
 ponding clearness of proof, that they were done with full 
 knowledge, and without constraint 7 
 
 § 14. Until a comparatively recent period deaf and dumb 
 persons were considered, prima facie, incapable of making 
 wills, or entering into contracts. 8 But when it was shown that 
 such persons had understanding, or if they were not deaf from 
 nativity, and could write or speak, having once acquired these 
 abilities, they '"were regarded like other persons, capable- of 
 making a will. 9 But since, at the present day it has been 
 shown that this class of persons are capable of receiving a high 
 degree of education, and of acquiring and communicating ideas 
 and knowledge by means of writing and by signs, we appre- 
 hend an educated deaf mute is presumptively competent to 
 manage his affairs and to make a valid will. 10 He may perform 
 the act of execution understandingly by means of a written 
 communication. 11 And there is no reason why he may not do 
 so by the sign language, where the witnesses are familiar with 
 that language. But greater strictness of proof should be re- 
 quired in these cases than in others. 
 
 § 15. There are persons, happily very few, who are deaf, 
 dumb and blind, of whom, as a class, it could hardly be pre- 
 sumed they were competent to transact business and make 
 
 6 Jarman, Eng. ed. 1861, 29. 
 
 ' Wharton & Stille, Med. Jur. 141 . 
 
 s 1 Wms. Ex'rs, 16, 17 ; Brown v. Fisher, 4 Johns. Ch. 441. Thev were 
 even held not responsible for crime. Taylor's Med. Juris. 690, 691. 
 » 1 "Wrns. Ex'rs, 16. 
 
 10 See Christmas v. Mitchell, 3 Ired. Ch. 535, where it is said deaf mutea 
 are not even presumptively defective in understanding. 
 
 » Moore v. Moore, 2 Bradf. Sur. 265. 
 
6 DEAF, DUMB AND BLIND PERSONS. [CH. IIL 
 
 wills ; yet Laura Bridgeman, of Connecticut, one of these, was 
 found capable of acquiring considerable knowledge, and of 
 communicating ideas by means of the sense of touch, and 
 doubtless could have executed a valid will. 
 
 CHAPTEE III. 
 
 Paet II. Persons Incapable of Making Wills, from 
 Mental Defect. 
 
 § 16. General remarks. 
 
 17. Persons of unsound mind classified. 
 
 18. Insanity or mania, how it exhibits itself. 
 
 19. Its distinguishing feature is delusion. 
 
 20. If general, the subject is incapable of a testamentary act. If partial, 
 
 may or not be. 
 
 21. Once established, insanity presumed to continue. 
 
 22. Delirium of disease. 
 
 23. Delirium from stimulus. 
 
 24. No presumption of continued incapacity in case of delirium. 
 
 25. Lucid intervals. 
 
 26. Idiots described. 
 
 27. Persons of weak mind. General remarks. 
 
 28. The case of Roe v. Taylor defining testamentary capacity. 
 
 29. Senile dementia defined. 
 
 30. No certain age beyond which testamentary incapacity may be pre- 
 
 sumed. The necessary capacity defined. 
 
 31. Intellectual feebleness alone said not to disqualify — cautions. 
 
 32. A case stated, from Taylor's Med. Jurisprudence. 
 
 33. Comments on the preparation of causes involving the question of 
 
 mental capacity. 
 
 § 16. We come now to consider the unsoundness of mind 
 which renders persons incapable of making wills. 
 
 The establishment of wills which have been formally exe- 
 cuted and witnessed, is usually opposed upon one or the other 
 of the three following grounds. 
 
 1. The testator's unsoundness of mind. 
 
 2. Fraud, which is mentioned in the statute. 
 
 3. Undue influence exercised over him, which is included 
 
CH. III.] INSANITY. 7 
 
 in the idea of "compulsion or other improper conduct," ex- 
 pressed by the statute. 
 
 The last two grounds will be treated of hereafter. 
 
 § 17. Those who are of unsound mind may, in a general 
 way, be spoken of as insane persons, idiots, persons of weak 
 mind, and persons demented by reason of old age, or, as it is 
 called, senile dementia. 
 
 § 18. Insanity, often called mania, exhibits itself in such a 
 variety of ways at different times and in different individuals, 
 as not to admit of exact description or classification. But for 
 general purposes it may be defined to be, a disordered activity 
 of one or more of the mental faculties, producing delusion, by 
 reason of which persons believe things to exist which exist only, 
 or at least in that degree exist only, in the imagination, and of 
 the non-existence of which neither argument or proof can con- 
 vince them. 1 When all or a considerable portion of the men- 
 tal faculties are primarily affected, it is denominated general 
 insanity ; if one or a small portion of them are primarily af- 
 fected, it is called partial insanity, or monomania. But the 
 healthy faculties are in almost all cases more or less affected in 
 their manifestation by the disordered activity of the others ; 
 their activity in some instances being increased, and in others 
 perhaps diminished. 2 We are called upon here to consider the . 
 character and influence of insanity no further than it relates to 
 the capacity of persons to dispose of property by will. 
 
 1 See Redf. Wills, § 11 pi. 21 and notes. 
 
 s It would be useless even in a more extended work on wills to refer to 
 all the tedious disquisitions on insanity, contained in writings on medical 
 and criminal jurisprudence and mental philosophy, with their countless 
 subtle refinements of language and ideas. No two authors seem to have 
 the same idea of the number and character of the mental faculties, or of 
 their separate or combined action or manifestation, either in health or 
 disease. Hence they have no common standard of language, as applied 
 to that subject, and -their writings leave a most unpleasant confusion in 
 the mind of the inquirer. Nor are the comments of learned judges an 
 exception to this statement. At the bottom of all this difficulty lies the 
 want of a sound mental philosophy, founded upon and conformable to, 
 observed facts, and containing a clear recognition and definition of the 
 mental faculties. 
 
8 INSANITY. [CH. III. 
 
 § 19. The distinguishing feature of insanity is delusion ; 
 which may exist as to one or more subjects, or in respect 
 to one or more persons; producing groundless liking for, or 
 hatred or fear of, one or more persons, or a class of persons ; 
 or overestimating or disregarding, liking or hating property and 
 things ; or conceiving false and unnatural ideas of the relations of 
 men and things ; or believing things to exist which do not exist. 3 
 
 § 20. Where the delusion is general, the party is incapable 
 of making a will ; but where only one or a few faculties are 
 implicated, he may or may not be competent for that purpose. 
 And this will depend upon the question whether the de- 
 lusion extends to the subject of his property, and to the rela- 
 tions between him and the natural objects of his bounty, as 
 well as to the estimates he places upon the persons or purposes 
 in whose favor he proposes to bestow it ; since in some cases 
 the delusion exists only with reference to matters wholly dis- 
 connected from pecuniary and family affairs, leaving the mind 
 to be guided in these by reason and a due regard to the duties, 
 interests and rights of all parties concerned. 4 Therefore, when- 
 ever it appears that the will is the direct offspring of the partial 
 insanity or monomania under which the testator was laboring, 
 it should be regarded as invalid, though his general capacity is 
 unimpeached." But monomania ought not to be regarded as 
 avoiding the testamentary act, unless the will is in some impor- 
 tant way mixed up with the particular subjects of the testator's 
 monomania. 
 
 § 21. The existence of insanity, either general or partial, 
 having been established, the law presumes its continuance till 
 the contrary is shown.' 
 
 s It is of the essence of an insane delusion, that, as it has no basis in 
 reason, so it cannot by reason be dispersed, and is thus capable of being 
 cherished side by side with other ideas with which it is rationally in- 
 consistent. Sir James Wilde, in Smith v. Tibbitts, Law Rep. 1 P. & D. 308. 
 
 4 See on this subject Banks v. Goodfellow, 3 Ch. Leg. News, 393, in Queen's 
 Bench. 
 
 6 Potts v. House, 6 Ga. 334; Townshend v. Townshend, 7 Gill, 10; Boyd 
 v. Eby, 8 Watts, 71. 
 
 6 1 Redf. "Wills, § 11, pi. 13 ; Taylor's Med. Juris. 056. 
 
 ' 1 Gr. Ev. § 43. 
 
CH. III.] DELIRIUM — LUCID INTERVALS. 9 
 
 § 22. The delirium of disease resembles insanity in some 
 respects, producing mania and wildness, raving and incoherence 
 of thought. Being the direct result of disease, it rises and falls 
 with the disease, and wholly ceases with restoration to health. 
 In fatal cases it is not unfrequently suspended, and the mind 
 recovers a quiet condition some time before death. 
 
 § 23. ^Delirium from stimulus is often carried to such an 
 extent as to incapacitate one for executing a valid will. This 
 is so when the testator is incapable of doing the act understand- 
 ingly. And in cases of intoxication or habitual drunkenness, 
 he must be so far under the dominion of delirium as not to un- 
 derstand the nature of the business in which he is engaged, 
 and so be rendered incapable of giving his consent, or else be 
 so much weakened in his capacity and purpose as to be chiefly 
 under the control of others. 8 
 
 § 24 There is no presumption of continued incapacity in 
 cases of delirium ; on the contrary, it will be presumed to have 
 ceased, after the lapse of such a period of time as commonly 
 produces restoration from such causes. 9 
 
 § 25. In mania there occur what are called lucid intervals, 
 when the mind resumes its natural serenity, and all its faculties 
 their usual balance of activity and power ; when consciousness, 
 the observing and reasoning faculties, the sentiments and feel- 
 ings manifest themselves harmoniously. These intervals must 
 be distinguished from a remission, in which there is a mere 
 abatement of the symptoms. During a lucid interval one may 
 execute a valid will ; but when it is attacked on the ground of 
 the testator's insanity, the fact of its being executed during a 
 lucid interval must be made clearly to appear ; " for insanity 
 shown to exist prior to the will, is presumed to have continued, 
 unless the contrary is satisfactorily shown. 
 
 In some instances lucid intervals appear with great regularity 
 for years, and continue for a considerable length of time. 
 
 § 26. Idiots may be described as persons who, from birth are 
 
 8 1 Eedf. Wills, §12, pi. 2; Barrett v. Buxton, 2 Aik. 167. 
 9 Hix v. Whittemore, 4 Met. 545. 
 10 Gombault v. Pub. Admr. 4 Bradf. Sur. 226. 
 
10 WEAKNESS OE MIND — SENILE DEMENTIA. [CH. III. 
 
 possessed of little or no power to observe, remember and rea- 
 son, capable of only the most limited mental improvement, and 
 unable to comprehend the social relations and the uses and 
 value of property. They are therefore incapable of executing 
 ■wills. 
 
 § 27. We have elsewhere spoken of the disabilities of idiots, 
 insane persons, and those demented by reason of old a^e. But 
 there is still a large class of persons entitled to consideration, 
 who do not strictly rank with either of these. They are such 
 as have greater mental power than idiots, and yet less than the 
 average of men. In some, their mental faculties are evenly, 
 and in others unevenly, balanced as to strength. In some their 
 weakness exists from birth, in others it is the result of disease. 
 In all it is easily noticeable, but often produces serious diffi- 
 culty in determining whether testamentary capacity exists. 
 Concerning these persons as well as the insane, the language of 
 courts and of writers on medical jurisprudence is far from 
 uniform. 
 
 § 28. In the case of Roe v. Taylor, 45 111. 485, the supreme 
 court lay down the rule as to testamentary capacity in con- 
 formity to the best considered opinions of other courts, reaching 
 the conclusion, that a testator possesses testamentary capacity, 
 within the meaning of the law, when he has an understanding 
 of the nature of the business in which he is engaged, of the 
 kind and value of the property devised, and of the persons 
 who are the natural objects of his bounty, and of the manner 
 in which he desires it distributed, unless affected by some mor- 
 bid and insane delusion, as to some one of those objects of his 
 bounty. 11 
 
 . § 29. In the greater number of testamentary cases where 
 mental incapacity is alleged as a ground for setting aside the 
 will, the unsoundness of mind is of the character called senile de- 
 mentia ; which is a weakness of. the mental powers in advanced 
 age, indicated the most noticeably by loss of memory, incohe- 
 rence of speech and reason, and by childishness of demeanor. 
 
 11 Kinne v. Kinne, 9 Conn. 102; Comstock v. Hadlyme, 8 Conn. 265, are 
 of the same purport. See post, §§ 30, 31. 
 
CH' III.] AGE — FEEBLENESS OP INTELLECT. 11 
 
 Perhaps there is no class of cases which will more severely test 
 the judgment of the counsel, the court and the jury. Here, 
 as in all other discussions on questions pertaining to the mind, 
 there is a want of exactness of description and definition, and 
 little uniformity of opinion upon the subject among authors ; 
 and the testimony of medical experts upon the trial, too often 
 somewhat partizan. and uttered in stilted phrase, serves to befog 
 the minds of all parties. 
 
 § 30. But there are certain principles which are generally 
 assented to, among which may be mentioned the following: 
 there is no certain age beyond which a testator is presumed in- 
 competent to make a will. Extreme old age may, however, 
 properly raise some doubt of capacity, but only so far as to 
 excite the vigilance of the court. 12 In order to make a valid 
 will, a testator must have so much mind and memory as would 
 • enable him to transact common business with that intelligence 
 which belongs to the weakest class of sound minds ; but he 
 may not have sufficient strength of memory and vigor of intel- 
 lect, to make and to digest all parts t>f a contract, and yet be 
 competent to direct the distribution of his property by will." 
 In the case of Harrison v. Rowan, 3 Wash. C. C. 580, Mr. 
 Justice Washington said : " A man may be capable of making 
 a will, and yet be incapable of making a contract, or to manage 
 his estate." But this would seem to be going to, if not step- 
 ping over the verge of allowable testamentary capacity. 
 
 § 31. It seems to be established that intellectual feebleness 
 alone will not disqualify one for making a will. 14 But there is 
 a large class of cases where the testaments of aged people come 
 in controversy, that the element of undue influence, imposition, 
 or fraud is mixed up with the weakness and imbecility of mind . 
 of the testator. In such cases courts and juries should be 
 reasonably watchful to see that no improper influence has been 
 
 18 Kinleside v. Harrison, 2 Phillim. 449. 
 
 "Stevens v. Van Cleve, 4 Wash. 0. C. 262. 
 
 "Elliot's Will, 2 J. J. Marsh. 340, Durnick v. Reichenback, 10 S. & E. 
 84; Blanchard v. Nestle, 3 Denio, 37. But see ante, § 28. The statement 
 in the text should be considerably qualified as to the principle. 
 
12 FEAR AND DREAD OF RELATIVES. [CH. III. 
 
 exercised, in . the production of an unjust or unequal distribu- 
 tion of the testator's property. In other words, that if the will 
 was executed, at a time when the testator was in a condition of 
 mind susceptible of being easily controlled, and the will itself 
 is one giving unequal advantages towards parties'in a position 
 to have brought their influences to bear upon the testator, the 
 triers of its validity have a right to require those, thus exposed 
 to suspicion, to prove, with reasonable certainty, that the will 
 was the offspring of the free agency of the testator. 15 Hence it 
 is very properly said, that where a will is just and equal, and 
 displays reason, memory, and benevolence [and we should add, 
 justice], and the same was made without advice or dictation, it 
 may be regarded as satisfactory evidence, that it was the pro- 
 duct of a disposing mind. 16 
 
 § 32. Another case may be noticed which often occurs in 
 the experience of lawyers, and to which, in attendance on aged 
 persons, medical gentlemen do not sufficiently attend. A per- 
 son's mind in extreme old age may be quite intelligent, his un- 
 derstanding of business clear, and his competency to converse 
 upon and transact it, undoubted, and his bodily strength good ; 
 but there may grow upon him such a fear and dread of rela- 
 tives who may have surrounded him, and on whom he may 
 have become perfectly dependent, that his nervous system is 
 wholly overcome, and he becomes a mere child and tool in the 
 hands of those about him ; so that he has no power to exert 
 his mind in opposition to their wishes, or to resist their impor- 
 tunities. His mind is enslaved by his fears and feeling of 
 helplessness, so that to that extent, and in matters in which he 
 may be moved by them, he really is facile and imbecile. This 
 state of things seems in great old age, easily brought on ; the 
 faculties are otherwise entire, and the bodily strength consider- 
 able." 
 
 § 33. In the preparation and trial of cases involving the 
 question of the testator's mental capacity, a great variety of facts 
 
 "Ibid. 
 
 >« McDaniel's Will, 2 J. J. Marsh. 331. 
 
 « Taylor's Med. Juris. 659. 
 
CH. III.] GENERAL CONSIDERATION'S. 13 
 
 sometimes present themselves for consideration ; such as, the 
 amount and character of the property to be disposed of by the 
 will, and the complexity of the provisions made by the same; 
 the length of time required by the will for the complete execu- 
 tion of its provisions, the contingencies ■ which might arise to 
 defeat those provisions, and the care taken to provide against 
 such defeat. And it would seem to be quite obvious that if 
 the testator's estate wa# small and consisted of but few items, 
 as if, for instance, he had devised the use of his land to his wife 
 during her life, and bequeathed all his personal estate to her, 
 making thereby a provision only sufficient for her support and 
 that of her minor children, — under such circumstances, a far in- 
 ferior degree of mental capacity would be deemed competent 
 for the business, than would be required, if the estate consisted 
 of city property, farming lands, leasehold interests, stocks in 
 manufacturing, banking and railroad corporations, and miscel- 
 laneous personal property, to be disposed of by one who owed 
 numerous debts and had a large family, consisting of children 
 by more than one wife, and surrounded by circumstances call- 
 ing for great consideration %nd careful provisions against contin- 
 gencies. The questions in either case would, after all, be, had 
 the testator sufficient mental capacity to dispose of the particu- 
 lar estate he possessed, under the peculiar conditions of that 
 estate, and of his business affairs and family relations. And 
 so far as the will itself is concerned, its provisions might be 
 scrutinized in the light of the testator's family circumstances, 
 and the character, extent and condition of his estate, to see if 
 they furnish evidence of the exercise of a sound mind.' 8 
 
 "In McAdam v. Walker, 1 Dow, 178, Lord Chancellor Eldon, mentions 
 a case, in which he had been counsel, and the will was established, al- 
 though the testator had been sometime insane, at its date, and was con- 
 fined in a madhouse till the day of his deat&. But the will was sustained 
 chiefly on the ground of its innate reasonableness and propriety, as it ' 
 wouli seem from his lordship's report of the case; as it was expressed 
 upon the ground that the will, although volumnious and complicated was 
 " proper and natural," proportioning the different provisions with the most 
 prudent and proper care, with a due regard to what he had before don-e 
 for the objects of his bounty, and^jn strict conformity with what he had 
 
14 EXECUTION OF WILLS, ETC. [CH. IV. 
 
 CHAPTEE IV. 
 
 EXECUTION OF WILLS, CODICILS AND NUNCUPATIVE 
 WILLS. 
 
 § 34. Statutory provisions — to be in writing, signed and witnessed. 
 
 35. What the statute requires and what it dofcs not. 
 
 36. The several things which must concur. 
 
 37. Will to be reduced to writing, but is sufficient if written with a 
 
 pencil. 
 
 38. What is a sufficient signing. 
 
 39. Will may be signed by another person. 
 
 40. Where the signature must appear. 
 
 41. Where signed by another, it must be done in the testator's presence. 
 
 42. Witness may sign by mark — no particular form of attestation, nor 
 
 any testamentum clause necessary. 
 
 43. Necessity of witnesses signing in presence of the testator. 
 
 44. Witnesses must be credible. Comments. 
 
 45. Weight of testimony of subscribing witnesses. 
 
 46. Will void as to witness who is a beneficial devisee or legatee, with 
 
 one exception, and he may be compelled to testify. 
 
 47. When husband or wife of the testatijx or testator is a witness — its 
 
 effect. 
 47a When creditor whose claim is secured by the provisions of a will is 
 a witness, he is competent. 
 
 48. Codicils are executed, witnessed and proved in all respects the same 
 
 as wills. 
 
 49. Codicils however numerous are regarded as parts of the will. 
 
 50. Publication of a will not required, and if cancelled or revoked a 
 
 will cannot be republished, but must.be revived by codicil. 
 
 51. Codicil presumed to be a part of testator's last will, and if one of 
 
 two wills has been cancelled it will be presumed to relate to the 
 one not cancelled. . _ 
 
 declared, before his malady, he intended to do. But in Clarke v. Lear, 
 cited 1 Philim. 119, an opposite result was arrived at, upon the ground 
 that the provisions of the will were unnatural and unreasonable. In 
 Thompson v. Thompson, 21 Barb. 107, it was held that, where there is evi- 
 dent ground to infer from the will and the surrounding facts that the tes- 
 tator must have exercised reason and judgment in the disposition of his 
 estate, showing the possession and exercise of his logical powers, the will 
 cannot be set aside, because the testator entertained exaggerated and absurd 
 opinions upon certain subjects. 
 
CH. IV.] EXECUTION OP WILLS — EFQUISITES. 15 
 
 § 52. A codicil may operate independent of any will, but is prima facie 
 part of a will. 
 
 53. If written upon or clearly refers to the will, the proof of the codicil 
 
 alone establishes such part of the will as is not revoked. 
 
 54. Reference in the codicil to a will -••its effect. 
 
 55. Later will sometimes treated as a codicil. 
 
 56. Nuncupative wills. How executed. Statutory provisions. 
 
 57. How proved. Statutory provisions. 
 
 58. Caton, J., remarks in Arnett v. Arnett, concerning the execution 
 
 and proof quoted. 
 
 59. Both witnesses must hear and swear to the same statement of the 
 
 " testator. 
 
 § 34. Section 2 of trie statute of Wills provides that, " all 
 wills, testaments and codicils, by which any lands, tenements, 
 hereditaments, annuities, rents or goods and chattels are de- 
 vised, shall be reduced to writing and signed by the testator or 
 testatrix, or by some person in his or her presence, and by his 
 or her direction, and attested in the presence of the testator or 
 testatrix, by two or more credible witnesses." 
 
 § 35. The statute has declared exactly what is requisite to 
 the valid execution of a will, and nothing more can be neces- 
 sary, and nothing less will be sufficient. Before seeing what it 
 does require, it may be well to notice some things which it does 
 not. It does not require a seal ' ; it does not require publica- 
 tion 2 — by which is meant, a declaration by the party that he 
 means to give effect to the paper as his will ; it does not re- 
 require the subscribing witnesses to sign the will at the same 
 time. 3 or in the presence of each other/ 
 
 § 36. The statute requires the concurrence of the following 
 facts in order to the valid execution of a will : 
 
 1. It must be in writing. 
 
 2. It must be signed by the testator ; or 
 
 1 But when done in the execution of a power specially required to be 
 done under seal, a seal would be indispensable. Hight v. "Wilson 1 
 Dall. 94. 
 
 2 Dickie v. Carter, 43 111. 377; Arndt v. Arndt, 1 S. & R. 256; Piatt v. 
 McCullough, 1 McLean, 69. 
 
 8 2 Bl. Com. 377. Bond v. Seawell, 3 Burr. 1773. 
 4 Flynnv. Owen (Sup. Ct. Ills. 1872), 5 Leg. News, 208. 
 
16 SIGNING. [CH. IV. 
 
 3. By some person in his presence, and by his direction. 
 
 4. It must be attested in his presence, by two or more credi- 
 ble witnesses. 
 
 These several requisites wjjl be examined in their order. 
 
 § 37. The will must be reduced to writing. But it would 
 seem that it would suffice, if in print and signed by the testator." 
 And it has been held that a will written in pencil would be good. 6 
 
 § 38. It must be signed by the testator. It is not however 
 necessary to write the christian name in full ; the initial letter 
 is sufficient. 7 And the testator may sign by making his 1 mark 
 in the usual manner ; and it is not necessary to prove that he 
 could not write his name at the time. 8 
 
 § 39. A will may be signed by another person in the testa- 
 tor's presence, and by his direction. This may be done by a 
 subscribing witness. 9 And it. is said the execution will be valid, 
 if the person executing the will on behalf of the testator, by 
 mistake, signs his own name instead of the testator's. 10 Only 
 one signature is required when the will consists of more than 
 one sheet, or piece of paper, when that is affixed with intent 
 thereby to sign the whole instrument. 11 
 
 § 40. It is not indispensable that the will ■ shall be signed 
 at the end of it. The testator's name may appear elsewhere. 13 
 It is necessary that the name of the testator, in whatever part 
 of the will it appears, should either have been written or adopted 
 by him, as the final act of execution A will written by the . 
 testator, and beginning, "I, A. B., do make," etc., has been 
 held to be sufficiently signed. 1 " Sealing a will is not equivalent 
 to signing, and is insufficient. 14 
 
 B 2 Bl. Comm. 376, Chitty's notes. Schneider v. Norris, 2 M. & S. 286. 
 
 6 In re Dyer, 1 Hagg. 219. 
 
 ' 1 Jarman, 73. 
 
 b 1 Redf. Wills, 203 and notes. 
 
 9 In re Bailey, 1 Curteis, 914; Smith v. Harris, 1 Rob. 262. 
 10 Be Clark, 2 Curteis, 329. 
 " Winsor v. Pratt, 5 J. B. Moore, 484; 
 
 "Lemayne v. Stanley, 3 Lev. 1; Adams v. Field, 21 Vt. 256; 1 Redf. 
 Wills, § 18, pi. 26. 
 "2 Greenleaf Ev. § 674; 1 Redf. Wills, § 18, pi. 10, 11 and notes; 
 14 1 Redf. Wills. § 1, pi. 5. 
 
CH. IV.J SIGNING WILL BY TESTATOR. 17 
 
 § 41. Where the testator's name is signed to the will by 
 another person, it must be done in his presence, and by his di- 
 rection. The language of the statute is so clear, that it seems 
 never to have undergone judicial construction in the higher 
 courts. The supreme court, in Allison v Allison, 46 111. 61, in 
 its judgment concerning the testator's acknowledgment of the 
 execution, said, "the statute does not require the acknowledg- 
 ment to be in language," so it might properly be said that his 
 direction to sign his name need not be in language. Any words 
 or actions, clearly evincing his desire to have it signed by 
 another, or his approval or ratification of it after it was signed, 
 would be sufficient And as to signing the testator's name in 
 his presence, the principle which governs the attesting of wills 
 in the maker's presence would doubtless apply. 
 
 § 42. The will must be attested in the testator's presence, 
 by two or more credible witnesses. And here, as in the case of 
 the testator, a mark made by a witness as his signature, is a suf- 
 ficient attestation. No particular form of words is necessary in 
 the attestation clause, nor need it express that the witnesses 
 signed in the presence of the testator, it being sufficient if this 
 is actually proved." Indeed, no testamentary clause is neces- 
 sary ; nor is it essential on, what part of the paper the witnesses 
 names are written. 19 
 
 16 2 Gr. Ev. § 677 ; 1 Redf. Wills, § 19, pi. 6, and note 14. And see post, § 
 162-165. Where the will is executed under a power, all the formalities re- 
 quired by the power should he complied with, both in the body of the will 
 and in the attestation. And see 1 Redfleld Wills, §§ 21, 26, 27, 28, 29, 30, 
 31. As to advantages of a testamentary clause, see id., § 23, pi. 10 ; § 19, 
 pi. 14H6. It is obvious that such a clause can have no conceivable value 
 except in case of the death of the witnesses before the probate, or their 
 forgetfulness of what occurred. In both cases it would afford a strong 
 presumption that the matters therein stated actually occurred. But it has 
 been held that where their testimony directly negatives the due execution, 
 and is not rebutted, either by direct or circumstancial evidence, and the 
 veracity of the witnesses is unimpeached, the court cannot, by reason of a 
 formal attestation clause, and on the presumption omnia esse rite acta, pro- 
 nounce for the will. Craft v. Craft, 4 Swab. & Tristram, 40, cited 1 Leg. 
 News, 19. 
 
 16 Roberta v. Phillips, 4 Ellis & Bl. 450 ; S. C. 30 Eng. L. & Eq. 147. In 
 this case Lord Campbell, Ch. J., said: " A testamentary clause not beiDg 
 2 
 
18 ATTESTATION BY WITNESSES. [CH. IY, 
 
 § 43. The requisition that the witnesses shall subscribe their 
 names in the presence of the testator, is in order that he may 
 have ocular evidence of the identity of the instrument attested 
 as his will, and to prevent the fraudulent substitution of an- 
 other. To constitute this "presence," it is necessary, not only 
 that the testator be corporally present, but that he be men- 
 tally capable of recognizing, and be actually conscious of, the 
 the act which is performed before him. Therefore, if, after he 
 has signed and published his will, and before the witnesses sub- 
 scribed it, he falls into a state of insensibility, whether tempo- 
 rary or permanent; or, if the will is subscribed by the wit- 
 nesses in a secret and clandestine manner, without his knowl- 
 edge, though it be in the same apartment ; in either case it is 
 void. To be corporally present, it is not essential that the tes- 
 tator be in the same apartment ; for if the situation and circum- 
 stances of the parties are such, that the testator in his actual 
 position might have seen the act of attestation, it is enough, 
 though they are not in the same apartment, nor even in the 
 same house; and on the other hand, if his view of the pro- 
 ceedings is necessarily obstructed, the mere proximity of the 
 places of his signature and of their attestation, will not suffice, 
 •even though it were in the same apartment. An attestation, 
 made in the same room with the testator, is presumed to have 
 been made in his presence until the contrary is shown ; and an 
 attestation not made in the same room, is presumed not to have 
 been made in his presence, until it is shown to have been made 
 otherwise." 
 
 §44. The witnesses must be "credible." A credible wit- 
 ness is generally defined to be one worthy of belief ;* but, as 
 used in this statute, it would seem to be one who is also com- 
 petent under the laws of the state. As to the period at which 
 the witnesses must be competent, the weight of authorities is 
 
 indispensable, we conceive that its absence would only make a difference 
 in the extrinsic evidence which would be required to prove that the wit- 
 nesses has seen the testator execute the will, and that they signed it with 
 the intention of attesting it, at his request and in his presence. Clear and 
 satisfactory proof must be given upon these points. 
 » 2 Gr. Ev. § 678. 
 
CH. IV.] COMPETENCY OF "WITNESSES. 19 
 
 clearly that it must be at the time of the execution. For, says 
 Mr. G-reenleaf, " The attesting witnesses are regarded in law as 
 placed around the testator, in order that no fraud may be prac- 
 ticed upon him, in the execution of the will, and to judge of 
 his capacity. 18 
 
 § 45. The testimony of the subscribing witnesses to the ex- 
 ecution of the will, must prevail, unless impeached, and should 
 not be disregarded, upon proof of the simple improbability 
 of their statement." And where proof of the attestation of a 
 deceased subscribing witness is relied upon, evidence 1 of the bad 
 character of such witness is admissible for the purpose of re- 
 butting the presumption of the due execution of the instru- 
 ment, arising from the attestation of the witness. 20 And where 
 the sole legatee in a will admitted that it was a forgery, this ad- 
 mission was adjudged sufficient to defeat the will, notwith- 
 standing the depositions of both the subscribing witnesses to its 
 due execution." 
 
 § 46. Where a beneficial devise- legacy or interest is made 
 or given in a will, to an attesting witness, the will is void as to 
 him and to all persons claiming under him, unless it was at- 
 tested by two other witnesses who are competent ; and he may 
 be compelled to testify to its execution. But if he would have 
 been entitled to any share of the testator's estate in case the 
 will should not be established, there will be saved to him an 
 amount thereof not exceeding in value the devise or bequest" 
 
 Under the English statute ( 25 Geo. II. ch. 6) containing a 
 similar provision, it has been held that this does not extend to 
 an executor or devisee in trust. 23 And the same has been held 
 in Kentucky under the section from which the Illinois statute 
 
 18 lb. §691; 1 Redf. Wills, § 21, pi. 1-6 and notes. See particularly 
 Sears v. Dillingham, 12 Mass. 358. 
 
 19 Boylan v. Meeker, 4 Dutcher, 274. 
 
 m Losee v. Losee, 2 Hill, 609 ; Colvin v. Warford, 20 Md. 357, 387. 
 51 Blatner v. Weis, 19 111. 246; 1 Gr. Ev. § 180. 
 
 22 Stat. Wills, § 8. 
 
 23 Lowe v. Joliffe, 1 W. Bl. 365; Anon. 1 Mod. 107; Goodtitle v. Well- 
 ford, Doug. 139; Phipps v. Pitcher, 6 Taunt. 220; Bettison v. Bromley, 
 12 Bast. 250. 
 
20 CODICILS. [CH- IV - 
 
 was copied." But where he is entitled to commissions on per- 
 sonal property, it has been held that an interest is thereby cre- 
 ated which renders him incompetent. The decisions, are, how- 
 ever, conflicting on this point 26 
 
 § 47. It has been decided that if either a husband or a wife 
 is a witness to a will containing a bequest to the other, such be- 
 quest is void, and the witness is competent. 26 
 
 § 47a. "Where lands, tenements, or hereditaments are charged 
 with any debt by a will, and the creditor whose debt is so se- 
 cured attests such a will, such creditor is nevertheless a compe- 
 tent witness. 27 
 
 § 48. The statute, it will oe perceived, makes no difference 
 between codicils and wills, as to the mode of executing, attest- 
 ing and proving the same, nor as to the capacity of the testator, 
 or the number and character of the attesting witnesses. 
 
 § 49. It is universally conceded that all codicils, however 
 numerous, are to be reg^ded as parts of the will, and all, to- 
 gether with the will, are to be construed as one instrument. 58 
 And where there is a conflict between the provisions of the 
 two, those of the latter will prevail. 
 
 § 50. Publication not being required by the statute, there 
 can be no such thing as " republication "of the will ; but a will 
 which has been revoked by a subsequent one, or where any of 
 its provisions have been modified by a codicil, may be revived, 
 or such modified provisions restored by a codicil ; but it should 
 clearly recognize the existence of the will. 29 A codicil may be 
 used to set up an informal paper intended f of a will, but it must 
 be clearly identified by the codicil relied upon for that purpose. s ° 
 
 84 Orndorf v. Hummer, 12 B. Mon. 619 ; and under a similar statute of 
 New York in McDonough v. Laughlin, 20 Barb. 238. 
 
 26 1 Redf. Wills, §§ 21, 9, and notes. But under the statute of Illinois, 
 Tit. Evidence, § 1, quxret 
 
 26 Jackson v. "Wood, 1 Johns. Ca. 163 ; Jackson v. Durland, 2 Johns. Ca. 
 314. See 111. Stat. Tit. Evidence and Depositions, § 8. 
 
 2 ' Stat. Wills, § 20. 
 
 88 1 Redf. Wills, § 23a, pi. 4; Van Cortlandt v. Kip, 1 Hill, 590. 
 
 s ' 1 Redf. Wills, § 23a, pi. 5; lb. § 29, pi. 3. 
 
 80 Tonnale v. Hall, 4 Comst. 140. 
 
CH. IV.] CODICILS. 21 
 
 § 51. The law presumes that a codicil is made as a part of 
 the testator's last will, if there is two in existence at the same 
 time, but if one of them has been cancelled or revoked, so as 
 to be no longer in existence, as a valid operative instrument, 
 the codicil will be presumed to have been intended to form a 
 part of the will then in existence and in force. 31 v 
 
 § 52. The provisions of a codicil are sometimes such that it 
 may operate independent of the will, and be effective, although 
 the will is destroyed. But a codicil is prima facie dependent 
 upon the will, and where the will and codicil to it are shown 
 to have been in existence, and the will has been destroyed, the 
 burden of proof is upon the party setting up the codicil, to 
 show that it was the testator's intention to have it operate sepa- 
 rately from the will, otherwise the presumption is that the de- 
 struction of the will was intended as a revocation of both. 32 
 
 § 53. Where a codicil to a will is written upon the same 
 paper as the will, or though written upon another paper, clearly 
 refers to and indentifies the will, proof of the codicil is suffici- 
 ent to establish such portions of the will as are not thereby re- 
 voked. 33 
 
 § 54. A reference in the codicil to the will, by the words 
 " my will," is generally construed to embrace all the existing 
 testamentary papers in force. 34 And the recognition of a prior 
 revoked will, by date or otherwise, as the will on which the 
 codicil is founded, shows an intention and will have the effect 
 to revive it. 36 And where the codicil refers to the former 
 of two inconsistent wills, by date, as the last will of the testa- 
 tor, it has the effect to revoke the intermediate, and evidence 
 of mistake cannot be admitted. 36 
 
 § 55. A later will is often treated as being merely in the 
 nature of a codicil, intended to supply the deficiencies of the 
 will and to make desired alterations of the same. And in this 
 
 31 Hale v. Takelove, 2 Rob. 336; Crosbie v. Macdoual, 4 Ves. 616. 
 K 1 Redf. Wills, § 23a, pi. 11. But see lb. § 25, pi. 16, 17 and notes. 
 83 Duncan v. Duncan, 23 111. 364, and cases cited. 
 
 34 Crosbie v. Macdoual, 4 Vesey, 610. 
 
 35 Payne v. Trappes, 1 Rob. 583 ; Re Chapman, 1 Rob. 1 ; 8 Jur. 902. 
 
 36 Crosbie v. Macdoual, supra. 
 
22 NUNCUPATIVE WILLS. [CH. IV. 
 
 view, a specific devise of real estate was held not revoked by a 
 subsequent will, making a general residuary devise to another 
 person." 
 
 § 56. The statute, title Wills, § 15, provides, tnat a nuncu- 
 pative will shall be good and available in law for the convey- 
 ance of personal property thereby bequeathed, if committed to 
 writing within twenty days after the making thereof, and 
 proven before the county court by two or more credible, disin- 
 terested witnesses, who were present at the speaking and pub- 
 lishing thereof, who shall declare,' on oath or affirmation, that 
 they were present a<nd heard the testator pronounce the words, 
 and that they believed him to be of sound mind and memory ; 
 and that he did at the same time, desire the persons present, or 
 some of them, to bear witness that such was his will, or words 
 to that effect ; and that such will was made in the time of the 
 last sickness of the testator ; and it being also proven by two 
 disinterested witnesses other than those hereinbefore mentioned, 
 that the said will was reduced to writing within ten days after 
 the death of the testator ; and no proof of fraud, compulsion 
 or other improper conduct be exhibited, which, in the opinion of 
 said court shall be sufficient to invalidate or destroy the same ; 
 and all such wills, when so proven and authenticated, shall be 
 recorded in like manner as other wills are directed to be re- 
 corded by law : Provided, that no letters testamentary shall be 
 granted on such will, until the expiration of sixty days after 
 the death of the testator* 
 
 § 57. Section 16 further provides, that when a nuncupative 
 will shall be proved and recorded as aforesaid, the court shall 
 issue a citation to the heirs and legal representatives of the 
 testator, if they reside in the couiity ; if not, the court shall 
 cause an advertisment to be inserted in some one of the news- 
 papers printed in this state, notifying the heirs and legal repre- 
 sentatives of the testator, at what time and place letters testa- 
 mentary will be granted upon such will, requiring them and 
 each of them to appear and show cause, if any they have, why 
 
 31 Freeman v. Freeman, 5 Deg. St. & G. 704. 
 * See Harrington v. Stees, 6 Leg. News, 311. 
 
CH. IV.] NUNCUPATIVE WILLS. 23 
 
 letters testamentary should not be granted ; and if no sufficient 
 cause be shown, letters stall be granted thereon, as in other 
 cases. 
 
 § 58. The ninth section of the old statute, of which the fif- 
 teenth section, just quoted, is a copy, underwent a partial con- 
 struction in the case of Arnett v. Arnett, 27 111. 247 ; in which 
 case the proof of the will did not show that the testator, at the 
 time of speaking and publishing thereof, did desire the persons 
 present, or some of them, to bear witness that such was his 
 will, or words to that effect Chief Justice Oaton says, " While 
 we should not be inclined to require an exact conformity to the 
 literal requirements of this statute, in the publication of a nun- 
 cupative will, yet we are not authorized or inclined to dispense 
 with a substantial compliance with all its provisions. * * It 
 is not enough that the words of the will alone should be spoken 
 in the presence of those who might bear witness to it ; but the 
 testator must also use some words indicating his desire or wish 
 that those present, or some of them, should bear witness that 
 such was his will. We will not say that signs and gestures might 
 not be so distinct and intelligible as to sufficiently indicate the 
 desire of the testator that he wished those present to bear wit- 
 ness to the will, as to amount, substantially, to words of that 
 import ; but it would have to be a very marked and unequivo- 
 cal case to dispense with words actually pronounced, to the 
 effect of those mentioned in the statute. But here we find 
 nothing to satisfy this last clause quoted. No word was spoken, 
 no sign made, no indication manifested, that the testator desired 
 any one present to bear witness to his declared wishes. There 
 is nothing to show that he ever expected or wished that any 
 one present should remember what he had said, or should ever 
 repeat those declarations, or should ever go before any tribunal 
 to prove that such was his will." For want of this statutory 
 requirement the will was declared void. 
 
 § 59. All that is understood by calling the witnesses to a 
 nuncupative will is that the testator intends his declarations as 
 his last will, and that the witnesses so understand them, and 
 that they are relied upon as the witnesses to hear and remem- 
 
24 NUNCUPATIVE WILLS. [CH. V. 
 
 ber the words. 38 And the two witnesses required by the stat- 
 ute, to the execution of the will, must both hear the same dec- 
 laration, and it is not sufficient that each heard different decla- 
 rations at different times. 39 Where the two witnesses required 
 by the statute to prove a nuncupative will, do not agree as re- 
 gards the will, it is only established so far as they do agree. 40 
 
 CHAPTBE V. 
 ee vocation; of wills. 
 
 § GO. Statutory provisions. Burning, cancelling, tearing, obliterating, — 
 subsequent marriage. 
 
 61. Intent to revoke absolutely essential. 
 
 62. Tearing and throwing upon the fire. — A case. 
 
 63. Part may be revoked by obliteration. Destroying with intent to 
 
 ma^e another, is a revocation. Revoking former will supposing a 
 later one is valid, is not effectual. 
 
 64. Partial obliteration not always effectual. 
 
 65. Erasures if illegible treated as blanks. 
 
 66. Eevoking a later will leaves an earlier, inconsistent one not revoked 
 
 by burning, tearing, cancelling or obliterating, in full force. 
 
 67. Where will is executed in duplicate, the destruction of one does not 
 
 revoke the other, both being in testator's possession. 
 
 68. " Tearing " includes cutting : cutting out a part — effect. 
 
 69. If executed as a sealed instrument, tearing off seal with intent to 
 
 revoke operates as a revocation. 
 
 70. Act and intent must concur. 
 
 71. Cancellation defined. 
 
 72. Soundness of mind and memory necessary to j, valid revocation. 
 
 73. Presumption of revocation — cases stated in which it arises. 
 
 74. Same subject. 
 
 75. Upon what real property a will operates. 
 
 76. A valid agreement to convey operates as a revocation. Cases stated. 
 
 78. Sale of a large portion of the real estate — its effect. 
 
 79. Effect of a subsequent will or codicil — comments. 
 
 80. The provisions of the later of two inconsistent wills, prevails so far 
 
 as the inconsistency extends. 
 
 81. Eevocation of a particular legacy, if there is no other disposition 
 
 made of it, produces intestacy to that extent. 
 
 38 Hatcher v. Millard, 2 Cald. (Tenn.) 30. 
 89 Tally v. Butterworth, 10 Terger, 501. 
 40 Portwood v. Hunter, 6 B.Mon. 538. 
 
CH. V.] KEVOCATION OF WILIS. 25 
 
 § 60. The statute, § 17, declares that no will or codicil shall 
 be revoked otherwise than by burning, cancelling, tearing or 
 obliterating the same, by the testator himself, or in his pres- 
 ence, by his direction and consent, or by some other will or 
 codicil, in writing, declaring the same, signed by the testator or 
 testatrix, in presence of two or more witnesses ; and no words 
 spoken shall revoke or annul any will or codicil in writing, ex- 
 ecuted as aforesaid in due form of law. By section 10, titte De- 
 scent, it is declared that marriage shall be deemed a revocation 
 of a prior will. 1 
 
 § 61. Under statutes identical with this, it has been well 
 settled that the mere acts named in section 17 will not consti- 
 tute a valid revocation, unless done with the intent to revoke. 
 Intent is an essential element in the act of revocation. 3 
 
 § 62. Where a testator called for his will, which was handed 
 him while in bed, and he gave it " something of a rip with his 
 hands, and so tore as almost to tear a bit off, then rumpled it 
 together and threw it on the fire, but it fell off," and one of 
 his servants took it up and preserved, or it would soon have 
 been burnt up ; and the testator being informed it was not 
 destroyed, constantly insisted it should be, until he was finally 
 
 1 This provision in sec. 10, was not in the former statute. But it was 
 held in Tyler v. Tyler, 19 111. 151, that marriage subsequent to the date of 
 the will operated as a revocation of such will, and this was so whether 
 there was issue of the marriage or not. The policy of this provision, 
 which has no exception, and the reasoning in the case of Tyler v. Tyler, 
 are, to say the least, very questionable. To sustain such a will cannot in- 
 jure the widow, for she may and naturally would avoid it by electing 
 to take under the statute. See Sturgia v. Ewing, 18 111. 176. If the wife 
 does not survive the husband, there is certainly no excuse on her account 
 to treat the will as a nullity. If children are born of the marriage, and 
 they survive the testator, then there is a just cause for treating the will as 
 revoked. If they do not survive him, and the wife does, then there is no 
 reason why the will should not operate upon one half of the real estate ; 
 and if both wife and children die before the testator, there is not a shadow 
 of reason why the will should not be operative as if the testator had not 
 married after it was made. The statute of New York very wisely de- 
 clares that marriage subsequent to the will shall not amount to a revo- 
 cation only in case the wife or issue shall be living at the testator's death. 
 
 2 Burtenshaw v. Gilbert, 1 Cowp. 49 ; Dan v. Brown, 4 Cow. 490 ; post, § 72. 
 
26 REVOCATION OF WILLS. [CH. V. 
 
 informed it had been, it was held a sufficient revocation. 8 The 
 Chief Justice remarked in this case, that "The statute has 
 specified four" modes of revocation, "and if these or any of 
 them are performed in the slightest manner, this, joined with 
 the declared intent, will be a good revocation. Throwing it 
 on the fire, with the intent to burn, though it is only very 
 slightly singed and falls off, is sufficient within the statute.'-' 4 
 
 § 63. A portion of a will may be revoked by obliteration 
 by the testator, without revoking the remaining parts." And if 
 the testator destroys his will with the mere general purpose of 
 thereafter making another, the revocation becomes effectual, 
 though he dies without carrying such purpose of making a new 
 will into effect" It is only where the testator revokes a former 
 will, upon the supposition that he has executed a subsequent 
 valid will, which proves invalid, that the act of revocation is 
 held incomplete. 6 
 
 § 64. Partial obliterations do not always amount to a revo- 
 cation, for they may be dependent upon a condition ; as where 
 the testator makes obliterations only with a view to substitute 
 other provisions in lieu of those erased, and where it is obvious, 
 that the making of the one depended upon the supposed 
 validity of the other, in the mind of the testator, and that the 
 erasures would not have been made, except upon the condition 
 that the substituted portions could, and would become opera- 
 tive, it has been uniformly held, that where the alterations, or 
 additions, have not been so executed as to become valid por- 
 tions of the instrument, the erasures cannot be treated as effect- 
 ive revocations of those portions even. 7 Thus, in Wolf v. 
 Bolinger* a will devising estate to Wolf was altered by the 
 testator, by drawing lines through that name, but not oblitera- 
 
 s Bibb v. Thomas, 2 W. Bl. 1043. But see also 1 Kedf. Wills, § 25, pi. 
 31 and notes. 
 
 * See Dan v. Brown, 4 Cowen, 490 ; Johnson v. Brailsford, 2 Nott & 
 McO. 272. 
 
 5 Sutton v. Sutton, 2 Cowp. 812, 451. 
 
 6 Williams v. Tyley, 1 Johns. Ch. 530. 1 Redf. Wills, § 25, pi. 49. 
 ' 1 Redf. Wills, § 25, pi. 44, and note. 
 
 s Sup. Ot. Illinois, 1872, 5 Leg. News. 112. 
 
CH. V.] REVOCATION OF WILLS. 27 
 
 ting it so that it could not be read, and by interlining the name 
 of Bolinger above, and the alteration was not attested by two 
 witnesses in presence of the testator ; Held, that the interlinea- 
 tion for want of attestation according to law, did not operate to 
 change the will ; and also that the cancelling of one name and the 
 substitution of another were concurrent acts tending to the 
 same purpose, that is to give the property to Bolinger, and the 
 failure to do this prevented the cancellation also from taking 
 effect, and left the will to stand as it was before the alteration 
 was attempted. 
 
 § 65. Where the testator makes an erasure, rendering a por- 
 tion of the will illegible, probate will be allowed, and the illegi- 
 ble portions treated as blanks. 9 And where the testator makes 
 an alteration in his will by erasure and interlineation, or in any 
 other mode, without authenticating the alteration, by a nevy 
 attestation in presence of witnesses, as required by statute, it 
 will be presumed that the erasure was intended to be depend- 
 ent upon the alterations going into effect as a substitute, and such 
 alterations not being valid for want of re-attestation, the will 
 stands in force, the same as it did before, so far as it is legible 
 after the attempted alteration." And where the testator struck 
 out the name of one trustee, and inserted two other names and 
 made some other alterations, but did not republish the will, it 
 was held not to affect the gift in any respect ; and also that the 
 trustee, whose name remained legible, must act as sole trustee. 11 
 
 «Ee James, 1 Sev. & Tr. 238; 1 Jarman, 133; In re John Williams' 
 Will, 5 Leg. News, 112. 
 
 10 1 Kedf. Wills, § 25, pi. 22, 44 and notes; Be Parr, 6 Jur. N. S. 56. In 
 Jackson v. Halloway, 7 Johns. 394, the will was altered by erasures and 
 interlineations, so as to enlarge its operation and not to restrict its former 
 provisions, and the testator endorsed and signed a memorandum on the 
 will, stating the alterations he had made, hut the memorandum, which 
 was attested by only two witnesses, the statute requiring three ; held the 
 erasures did not destroy the devise, but the alterations could not operate ; 
 citing Onions v. Tyrer, 1 P. Wms. 343, n. 1, and Short v. Smith, 4 East, 
 419. 
 
 11 Short v. Smith, 4 East. 419 ; Wolf v. Bolinger, 5 Leg. News, 112, where 
 it is, also said the power to try and determine whether the writing pro- 
 duced is the will of the testator or not, includes the power to adjudge 
 
28 KEVOCATION OF WILLS. [CH. V. 
 
 And where there is a codicil to the will which takes no notice of 
 such alterations, the presumption is, that they were made after 
 the date of the codicil." 
 
 § 66. A later will revoked will not prevent an earlier and 
 inconsistent one, not revoked by burning, tearing, cancelling or 
 obliterating from remaining in force ;" and this will be so 
 whether the later will contained an express clause of revocation 
 or not." The reason is this ; the will does not become opera- 
 tive before the testator's death. However, it was held in Col- 
 vin v. Warford, 20 Md. 357, that an express clause of revocation 
 in a will operates to supersede the will thus revoked, but that it 
 will be again restored by the destruction of the revoking will. 
 
 § 67. "When the will was executed in duplicate, both copies 
 being in the testator's custody, and one of them was found mu- 
 tilated, and the other preserved, it was held the will remained 
 unrevoked 15 
 
 § 68. The statutory word "tearing" has been held to in- 
 clude cutting." Cutting out a part, as the name of a legatee, is 
 deemed a revocation to that extent. 17 And catting out or ob- 
 literating the principal part, as the signature of the testator, or 
 of the witnesses, will be a revocation of the whole will. 18 
 
 § 69. Where one had executed his will, as a sealed instru- 
 ment, and tore off the seal with intent to revoke, it was held a 
 sufficient revocation, notwithstanding the statute did not require 
 a seal 19 
 
 upon the validity of any part of the instrument, as well as the whole. 
 And in re John Williams' Will, 5 Leg. News, 112, Bradwell, Co. Judge, 
 said, the county court has full power to examine any paper offered for 
 probate as a will, and to probate such portions thereof as the evidence 
 shall show to be the will of the deceased, and to reject such portions as 
 shall appear not to be his will. 
 » Bowley v. Merlen, 6 Jur. N. S. 1165. 
 
 13 Goodright v. Glazier, 4 Burrow, 2512 ; 4 Kent, 531, also note (e.) lb. 
 
 14 Harwood v. Goodright, 1 Cowp. 87, 92. But see 1 Bedf. Wills, § 25, pi. 
 36 and notes; ib. § 29, pi. 16, 17, 18. 
 
 "Boberts v. Bound, 3 Hagg.588. 
 
 16 Hobbs v. Knight, 1 Curteis, 289. 
 
 "Be Cooke, 5 Notes Cas. 390; Be Lambert, 1 Notes Cas. 131. 
 
 16 1 Jarman, 161, and n. 1, 132; Be Simpson, 5 Jur. N. S. 179. 
 
 19 Price v. Powell, 3 H. &. Nov. 341. 
 
CH. V.] REVOCATION OF WILLS. 29 
 
 § 70. Act and intention must concur. Mere tearing or oth- 
 erwise destroying one's will, by accident, and without any in- 
 tention of revocation, will not have any legal effect, and this 
 may always be shown by extrinsic evidence, as that it is the 
 effect of wear only. 30 
 
 § 71. To cancel a paper means, to cross the written lines, 
 and deface them, or blot out or obliterate them. 
 
 § 72. Soundness of mind and memory is as necessary to 
 the valid revocation of a will, as to its execution. Therefore 
 the mere fact of tearing, cancelling, obliterating, burning, etc., 
 without the intent to revoke which the statute makes indis- 
 pensable to the vocation, and which could not exist, unless the 
 testator were in his sane mind, could have no legal operation 
 upon the instrument. 21 And a will or codicil executed under 
 undue influence will not revoke a former will." 1 
 
 § 73. When a will is once known to exist, and was last 
 heard of in the custody of the testator, and cannot be found 
 after his decease, the presumption is that it was destroyed by 
 the testator, with intention to revoke." But where it was 
 shown that before the testator's death the will was gone from the 
 trunk, where it was usually kept by him, but it appeared that 
 this was not by the act of the testator, it was held, that the will 
 might be admitted to probate, notwithstanding the prima facie 
 presumption of its revocation. 24 So if the will was deposited in 
 the hands of the scrivener, and cannot be found after the testa- 
 tor's death, and the depositary is ignorant of the mode of its 
 abstraction or disappearance, the presumption is in favor of its 
 remaining in force until the time of the testator's decease. 25 
 
 § 74. "Where a will is found mutilated after the decease of 
 
 *> 1 Bedf. Wills, § 25, pi. 21. 
 
 81 Idley v. Brown, 11 "Wend. 227; Smith v. Smith, 4 Bart. 28; Nelson v. 
 McGiffert, 3 Barb. Ch. 158; Bhodes v. Vinton, 9 Gill, 169; Ford v. Ford, 
 7 Humph. 92. 
 
 « O'Neall v Farr, 1 Bich, 80; also 1 Bedf. "Wills, § 28, pi. 9; ante, § 61. 
 
 « Holland v. Ferris, 2 Bradf. Sur. 334. 
 
 M Minkler v. Minkler, 14 Vt. 128. 
 
 ffi Hildreth v. Shillinger, 2 Stark. 196. 
 
30 REVOCATION OF WILLS. [OH. V. 
 
 the testator, and had last been in his custody, this is prima 
 facie evidence that it was done by the testator with intent to 
 revoke. 2 " 
 
 § 75. At common law a will operated on such real estate 
 only as the testator had at the time of its execution." After 
 acquired estate did not pass under it. And where the form of 
 the interest in the estate possessed at the date of the will had 
 afterward materially changed, such change in the estate was 
 deemed a revocation of the will. 29 But the first section of the 
 statute gives the right to devise the estate, etc. which the testa- 
 tor has, or at the time of his death, shall have. The will takes 
 effect at the testator's death, and upon such property as he may 
 then have. Therefore a material change of the estate does 
 not operate to revoke the will, but the alienation of a material 
 portion which was devised, operates as a revocation to that ex- 
 tent, but no farther. 29 
 
 § 76. A valid agreement or covenant to convey, which a 
 court of chancery will specifically enforce, will operate in equity 
 as a revocation of a former devise of the same estate. Thi3 
 rule is maintained in equity, upon the ground that, from the 
 date of the contract, the estate is regarded as the real estate of 
 the vendee, as if the same had been conveyed. 80 And where 
 the testator devised certain portions of his real estate to his 
 several children, and among others to his two daughters, and 
 gave the residue of his estate to be equally divided among all 
 of his children, and subsequently sold and conveyed a portion 
 of that devised to his daughters, taking back a bond and mort- 
 gage to secure the purchase money, it was held to have revoked 
 the devise to his daughters, as to the portion so sold, and that 
 
 86 Evans v. Dallow, 21 L. J. Prob. 128. 
 
 " 1 Jarman, 136. 
 
 S8 3P. Wms. 163. 
 
 S9 1 Eedf. Wills, § 26, pi. 12, 13. 
 
 30 4 Kent, 528. And it is said, that where the testator conveys the estate, 
 and it reverts back again, by the same instrument, or otherwise, it will 
 operate to revoke a prior devise of the same. Walton v. Walton, 7 Johns. 
 Ch. 258. But, quare, can this be so if the reversion takes place prior to 
 the testator's death ? 
 
CH. V.] CONSTKUCTIOIT OF WILL8. 81 
 
 the securities became by the transaction, a portion of the residu- 
 um of the estate, to be divided equally among all the chil- 
 dren, under the residuary clause in the will. 31 And a lease for 
 ninety-nine years, with the right in the lessee to extinguish the 
 reversion by the payment of a fixed sum, will revoke a devise 
 of the same estate. 32 
 
 § 78. Ihe sale and conveyance of so large a portion of the 
 real estate devised, as to render it impracticable to give effect 
 to the dispositions of the will, operates as a revocation of the 
 will. 33 So a grant in fee of the estate devised, reserving rent 
 with a clause of re-entry, operates to revoke the devise. 34 
 
 § 79. The questions whether a will is revoked by a subse- 
 quent one, or by a codicil, and to what extent, are sometimes 
 very difficult to satisfactorily answer. Of course they cannot 
 arise upon any but legally executed wills and codicils. Nor 
 can they arise where a later will expressly revokes a former one, 
 but only where the provisions of one are inconsistent with those 
 of the other ; as, if the language of the supposed revocation ad- 
 mits of a doubt whether a revocation was intended, or of the 
 extent of the revocation. 
 
 § 80. Where the two wills are inconsistent with each other, 
 the provisions of the later one will prevail ; as, where the later 
 will disposes of all the testator's estate to other legatees than 
 those named in the first, or to the same ones in different pro- 
 portions. This amounts to a total revocation. 35 But where the 
 provisions of one will are inconsistent with only a portion of 
 those of the other the provisions of the earlier one, the latter 
 
 81 Adams v. Winne, 7 Paige, 97; Beck v. M'Gilles, 9 Barb. 35; Mc 
 Naughton y. MclSTaughton, 34 N. Y. 201. But see Stubbs v. Houston, &3 
 Ala. 555. 
 
 8i > Bosley v. Bosley, 14 How. (U. S.) 390. 
 
 33 In re Cooper's Estate, 4 Barr. 88. And it is said the mortgage of a 
 portion of the estate will operate to revoke a devise of the same, to that 
 extent, as well as an absolute conveyance. M'Taggart v. Thompson, 14 
 Penn. St. 149. But this is at least doubtful. See post, Chap. XLII. 
 
 84 Hnrrington v. Budd, 4 Denio, 321. 
 
 85 Evans v. Evans, 27 Sim. 107; In re Fisher, 4 Wis. 254; Simons v. 
 Simons, 26 Barb. 68. 
 
32 CONSTRUCTION OF WILLS. [CH. Y. 
 
 will be made to yield only so far as it is found impossible to 
 make them stand with the provisions of the later one. 39 A 
 devise will not be held revoked further than is absolutely nec- 
 essary, by a subsequent inconsistent devise, nor unless, or 
 until, the subsequent devise can take effect." 
 
 § 81. The effect of the revocation of a particular legacy, 
 where there is no disposition made of the same, either generally 
 or specifically, is that of intestacy to that extent" And the 
 subject matter becomes residuary estate. 
 
 CHAPTEE VI. 
 CONSTRUCTION OF WILLS. 
 
 § 82. General principles. 
 
 83. Rules of construction by Mr. Jarman. 
 
 84. Other and further rules adopted by American courts. 
 
 85. Concerning words of equivocal meaning. 
 
 8C. Clearly expressed intention prevails over doubtful constructions. 
 
 87. Existing punctuation may be disregarded. 
 
 88. Courts give effect to all the words, in general. 
 
 89. All the papers constituting the testamentary act are to be taken to- 
 
 gether. 
 
 90. The construction of foreign wills is governed by the law of the place 
 
 where the property is situated. 
 
 91. Concerning transposition of words. 
 92-96. Concerning change of words. 
 
 97. Repugnant provisions — The latest must prevail. Instances of appa- 
 4 rently repugnant provisions reconciled. 
 
 98. Repugnant words sometimes rejected or transposed. 
 
 99. Words may be supplied by intendment in certain cases. 
 100. Instances of supplying words. 
 
 36 Jarman, 161; Plenty v. West, 6 C. B. 301; 1 Rob. 264; Cookson v. 
 Hancock, 1 Keen, 8, 17 ; and see 1 Redf. Wills, § 28, pi. 34, and note. 
 
 87 Duffleld v. Duffleld, 3 Bligh, N. S. 260; 1 D & CI. 268, 395; Re Cola- 
 head, 2 DeG. & J. 690. 
 
 88 Ramsey v. Shelmerdine, Law Rep. 1 Eq. 129. 
 
CH. VI.] CONSTRUCTION OF WILLS. 33 
 
 § 82. The rules for the construction of wills are less rigid 
 than those applied to ordinary legal instruments. The testator 
 has a legal right to dispose of his property as he sees fit. No 
 one has any right to it during his life, nor even at his decease, 
 except subject to his wishes, if he sees fit to dispose of it by 
 will. He may therefore exclude his nearest relation, and give 
 it all to strangers. But if he fails to make a will, the law steps 
 in and disposes of his estate to those persons whom it may 
 reasonably be supposed he would have given it to had he 
 attempted its distribution. Therefore in interpreting wills the 
 true aim must be to ascertain the testator's intent, and give 
 effect to that. But the intention to be sought must be that 
 which the testator has expressed in his will ; and this must be 
 judged of, exclusively, by the words of the instrument, as 
 applied to the subject matter, and the surrounding circum- 
 stances. 1 
 
 § 83. Mr. Jarman, in his valuable work,' has extracted from 
 the vast number of oases involving the construction of wills, a 
 series of general rules, which will perhaps be found to be the 
 best statement of the principles of testamentary construction 
 to be met with in the books. They are here given without his 
 citations of authorities, but with some references contained in 
 brackets to American cases and to later English cases. They 
 are as follows : 
 
 L That a will of real estate, wheresoever made, and in what- 
 ever language written, is construed according to the law of 
 England. [In other words, according to the law of the place 
 where the real estate is situated.] But a will of personality is 
 governed by the lex domicilii [Minis v. Smith, 14 How. 
 (U.S.) 400; Harrison v. Nixon, 9 Pet (U. S.) 483.] 
 
 II. That technical words are not very necessary to give 
 effect to any species of disposition in a will. 
 
 IIL That the construction of a will is the same at law and 
 
 ■Chrystie v. Phyfe, 19 IT. T. 234, 348; Arcularius v. Geisenhainer, 3 
 Bradf. Sur. 64; Jackson v. Laquere, 5 Cow. 221. 
 
 "Wills, Vol. 2, p. 702; See 4 Kent's Com. pp. 326, 534, and the learned 
 and valuable notes to the same. 
 3 
 
34 MR. jaeman's eules. L oh> vl 
 
 in equity ; the jurisdiction of each being governed by the na- 
 ture of the subject ; though the consequences may differ ; as in 
 the instance of a contingent remainder, which is destructible in 
 the one case and not in the other. 
 
 IV. That a will speaks for some purposes, from the period of 
 execution, and for others from the death of the testator ; but 
 never operates until the latter period. 
 
 V. That the heir is not to be disinherited without an express 
 devise, or necessary implication ; such implication importing not 
 natural necessity, but so strong a probability, that an intention 
 to the contrary cannot be supposed. 
 
 VI. That merely negative words are not sufficient to ex- 
 clude the title of the heir or next of kin. There must be a 
 definite gift to some other definite object. 
 
 VII. That all parts of a will are to be construed in relation 
 to each other, and so as, if possible, to form one consistent 
 whole. [Smith v. Taylor, 21 111. 298. And every part of the 
 instrument must have its just operation unless there arises some 
 invincible repugnance, or else some portion is absolutely unin- 
 telligible. Norris v. Beyea, 13 K Y. 273, 283.] But where 
 several parts are absolutely irreconcilable, the latter must pre- 
 vail. 
 
 VIIL That extrinsic evidence is not admissible to alter, 
 detract from, or add to, the terms of a will ; though it may be 
 used to rebut a resulting trust attaching to a legal title created 
 by it, or to remove a latent ambiguity (arising from words 
 equally descriptive of two or more subjects or objects of gift). 
 
 IX. Nor to vary the meaning of words ; and therefore to 
 attach a strained and extraordinary sense to a particular word, 
 an instrument executed by the testator, in which the same word 
 occurs in that sense, is not admissible. 
 
 X. But courts will look at the circumstances under which 
 the devisor makes his will ; as the state of his property, of his 
 family, and the like. 
 
 XI. That in general, implication is admissible only in the 
 absence of, and not to control, an express disposition. 
 
 XII. That an express and positive devise cannot be con- 
 
CH. VI.J CONSTRUCTION OF WILLS. 35 
 
 trolled by the reason assigned, or by ambiguous words ; or by 
 inference and argument from other parts of the will ; and, ac- 
 cordingly, such a devise is not affected by a subsequent inaccu- 
 rate recital of, or reference to, its contents, though recourse 
 may be had to such reference to assist the construction, in case 
 of ambiguity or doubt 
 
 XIII. That the inconvenience, or absurdity of a devise, .is 
 no ground for varying the construction, where the terms of it 
 are unambiguous [Butler v. Butler, 3 Barb. Ch. 304] ; nor is 
 the fact that the testator did not foresee all the consequences of 
 his disposition, a reason for varying it. But where the inten- 
 tion is obscured, by conflicting expressions, it is to be sought 
 rather in a rational and consistent, than an irrational and incon- 
 sistent, purpose. 
 
 XIV. That the rules of construction cannot be strained to 
 bring a devise within the rules of law ; but it seems that where 
 the will admits of two constructions, that is to be preferred 
 which will render it valid ; and therefore the court, in one in- 
 stance, adhered to the literal language of the testator, though it 
 was highly probable that he had written a word, by mistake, 
 for one which would have rendered the devise void. 
 
 XY. That favor, or disfavor, to the object, ought not to iri.- 
 fluence the construction. 
 
 XVI. That words, in general, are to be taken in their ordi- 
 nary and grammatical sense, unless a clear intention to use 
 them in another can be collected, and that other can be ascer- 
 tained [Oromer v. PincJcney, 3 Barb. Ch. 466] ; and they are 
 in all cases to receive a construction which will give to every 
 expression some effect, rather than one that will render any of 
 the expressions inoperative ; and of the two modes of construc- 
 tion, that is to be preferred which will prevent a total intestacy. 
 [Chrystie v. Phyfe, 19 N". Y. 344.] 
 
 XYH. That where a testator uses technical words, he is 
 presumed to employ them in their technical sense, unless the 
 context clearly indicates the contrary. [Rawson v. Pawson, 52 
 111. 62. But this rule may be considered somewhat modified 
 by late English cases. In Young v. Pobsrtson, 4 Macq. H. L. 
 
36 MB. jarman's rules. [ch. VI. 
 
 Cas. 314, 325, the rule is thus stated. The primary duty of a 
 court of construction, in the interpretation of wills, is to give 
 to each word employed, if it can with propriety receive it, the 
 natural, ordinary meaning, which it has in the vocabulary of 
 ordinary life, and not to give words employed in that vo- 
 cabulary an artificial, a secondary, and a technical meaning. 
 And in Hall v. Warren, 9 H. L. Cas. 420, it was held, that in 
 construing the autograph will of an illiterate man, the meaning 
 of technical language may be disregarded, but no word which 
 has a clear and definite operation can be struck out] 
 
 XVIII. That words, occurring more than once in a will, 
 shall be presumed to be used always in the same sense, unless 
 a contrary intention appear by the context, or unless the words 
 be applied to a different subject And on the same principle, 
 where a testator usee an additional word or phrase, he must be 
 presumed to have an additional meaning. 
 
 XIX. That words and limitations may be transposed, where 
 warranted by the immediate context, or the general scheme of 
 the will ; but not merely on a conjectural hypothesis of the 
 testator's intention, however reasonable, in opposition to the 
 plain and obvious sense of the language of the instrument 
 [Words, or clauses of sentences, or even whole paragraphs, may 
 be transposed to any extent, with a view to show the intention 
 Of the testator. Pond v. Bergh, 10 Paige, 140. But it must 
 appear either from the words of the will, or extrinsic proof, ad- 
 missible in aid of the construction of the words, that the trans- 
 position does really bring out the true intent of the testator, 
 and thus render clear what was before obscure. fflc parte 
 Hornby, 2 Bradf. Sur. 420; Rathbun v. Dyckman, 3 Paige, 9. 
 For if the transposition leaves the same uncertainty, only giv- 
 ing a different import, it is not allowable. But where it gives 
 effect to all provisions of the will, and renders them all harmo- 
 nious and consistent, both with each other, and with the gen- 
 eral purpose and intent of the will, it affords very satisfactory 
 ground of presumption, that it reaches the source of the diffi- 
 culty, and explains the mode in which it arose. Hyatt v. Pugs- 
 ley, 23 Barb. 285 ; Simpson v. Smith, 1 Sneed, 394.] 
 
CH. VI.] CONSTRUCTION OF WILLS. 37 
 
 XX. That words which it is obvious are miswritten, (as 
 dying with issue, for dying without issue), may be corrected. 
 
 XXI. That the construction is not to be varied by events, 
 subsequent to the execution ; but the courts in determining the 
 meaning of particular expressions, will look to possible circum- 
 stances, in which they might have been called to affix a signifi- 
 cation to them. 
 
 XXII. That several independent devises, not grammatically 
 connected, or united by the expression of a common purpose, 
 must be construed separately, and without relation to each 
 other ; although it may be conjectured, from similarity of rela- 
 tionship, or other circumstances, that the testator had the same 
 intention. There must be an apparent design to connect them. 
 This, and the former class of cases, chiefly relate to a question 
 of frequent occurrence ; whether words of limitation, preceded 
 by several devises, relate to more than one of those devises. 
 
 XXIII. That where a testator's intention cannot operate to 
 its full extent, it shall take effect as far as possible. 
 
 XXIV. That a testator is rather to be presumed to calcu- 
 late on the dispositions in his will taking effect, than the con- 
 trary ; and accordingly, a provision for the death of devisees, 
 will not be considered as intended to provide exclusively for 
 lapse, if it admits of any other construction. 
 
 § 84. Whilst the foregoing rules embrace principles appli- 
 cable to nearly every ease that would be likely to occur, there 
 are some decisions of American courts which declare other 
 useful principles of interpretation. Accordingly we present 
 such of them as seem most important. 
 
 § 85. When words are equivocal, that meaning must be 
 adopted which will tend to preserve consistency, in preference 
 to one which would create inconsistency." Where the general 
 intent of the testator is clear, and it is impracticable to give ef- 
 fect to all of the language of the instrument, expressive of some 
 particular, or special intent, the latter must yield to the former. 
 But every expressed intent of the testator must be carried out 
 
 3 Chrystie v. Phyfe, 19 N. T. 344; Hone v. Van Bchaick, 3 N. T. 538. 
 
38 OTHER RULES STATED. [CH. VI. 
 
 where it can be/ And the general intent overrides all mere 
 technical and grammatical rules of construction. 5 But the court 
 cannot remodel the will in order to meet a contingency not in 
 the mind of the testator.' 
 
 § 86. A clearly expressed intention, in one portion of the 
 will, is not to yield to a doubtful construction, in any other 
 portion of the instrument. 7 
 
 § 87. The existing punctuation will be disregarded, if any 
 change in that respect will tend to bring out and render the 
 meaning of the instrument more obvious and more unquestion- 
 able. 6 
 
 § 88. It is the duty of the court to give effect to all of the 
 words without rejecting or controlling any of them, if it can be 
 done by a reasonable construction, not inconsistent with the 
 manifest intent of the testator. 8 
 
 § 89. All the papers which constitute the testamentary act 
 are to be taken together ; as the will and codicils, and any pa- 
 pers so referred to as to be incorporated with the same. 10 
 
 § 90. In regard to foreign wills of real estate, the authori- 
 ties are clear, that their construction is governed entirely by 
 the law of the place where the property is situated." But the 
 words of a will of personalty are to be construed with reference 
 to the law of the domicile of the testator, unless there is some 
 evidence of a different intention. Therefore where one born 
 and domiciled in England made his will, giving his personal 
 estate to his heir-at-law, it was held to import the heir-at-law 
 according to the definition of the English law. ia 
 
 § 91. "Where a clause in a will is not sensible, or is absurd, 
 
 4 Parks v. Parks, 9 Paige, 107. 
 
 6 Sorsby v. Vance, 36 Miss. 564. 
 
 6 Lepage v. McNamara, 5 Clarke, Iowa, 184 ; Stokes v. Tilly, 1 Stockt. 130. 
 
 ' Corrigan v. Kiernan, 1 Bradf. Sur. 308 ; Brown v. Lyon, 6 N. T. 419. 
 
 8 Arcularius v. Geisenhainer, 3 Bradf. Sur. 64. 
 
 9 Dawes v. Swan, 4 Mass. 308, 315 ; Cook v. Holmes, 11 Mass. 528. 
 '"Westeott v. Cady, 5 Johns. Ch. 343; Leavens v. Butler, 8 Post, 380. 
 » 1 Redf. "Wills, § 30a, pi. 8. 
 
 12 Harrison v. Nixon, 9 Pet. (TJ. S.) 483 ; Ennis v. Smith, 14 How. (U. S.) 
 400; IRedf. § 30a, pi. 9. 
 
CH. VI.] CONSTRUCTION OF WILLS. 39 
 
 and can be rendered sensible, and consistent with the general 
 tenor of the will, and with the extraneous circumstances, by 
 transposition, it is generally allowable ; Ia as, where the testator 
 misdescribes his estates, as being in different localities from the 
 fact, putting one estate in the locality of another, and vice 
 versa; it was held, that where sufficient appeared upon the face 
 of the will, when applied to the subject matter, to show that 
 such misdescription was a mere mistake, either in the testator 
 or the person who wrote the will, that it would not have the ef- 
 fect to defeat the obvious intention of the testator." 
 
 § 92. It sometimes occurs that the testator has used a wrong 
 word by mistake, and this is so apparent from the face of the 
 will, and the will itself is so irrational by reason of the use of 
 such word, when considered with reference to extrinsic facts, 
 that there is no ground for difference of opinion or argument 
 by way of construction : in such cases a change of words is per- 
 missible. But no word in a will can be rejected and another 
 substituted in its place, without the clearest evidence that such 
 change would effectuate the real intention of the testator. 16 
 Therefore where the testator's intention evidently appeared to 
 be, to divide his property equally among his seven children, 
 and for that purpose he had arranged it upon seven schedules, 
 and subjected it to mortgage debts in such manner, that if in a 
 particular clause the words " fourth schedule " were read lit- 
 erally, the entire plan of the will would be frustrated, and the 
 payment of the debt in the manner provided would become 
 impossible, but if "fourth" were read "fifth," the whole 
 would be rendered consistent and rational, the court did not 
 hesitate to adopt that construction. 18 
 
 § 93. Slight changes in the words or their collocation, are 
 
 "East v. Cook, 2 Ves. Sen. 30, 32; Duke of Marlborough v. Godolphin 
 lb. 74. 
 
 14 Mosley v. Massey, 8 East. 149. 
 
 15 O'Brien v. Herney, 2 Edw. Ch. 242; Hawn v. Banks, 4 Edw. Ch. 664; 
 Van Vechten v. Pearson, 5 Paige, 512 ; Hunt v. Hunt, 11 Met. 88 ; Carpen- 
 ter v. Heard, 14 Pick. 449. 
 
 16 Hart v. Tulk, 2 De. 9 M. & Q. 300. 
 
40 "WOEDS CHANGED. [CH. VL 
 
 quite frequent in the construction of wills, since very few per- 
 sons use language with much precision, and even the most cor- 
 rect writers sometimes use familiar forms of expression, with 
 great looseness." The most common illustration of this occurs, 
 probably in the use of the words, " and," " or," and similar ex- 
 pressions. It is very common to give conjunctive words a dis- 
 junctive force, and vice versa. 
 
 § 94. It is now a settled rule, that where an estate, in lands- 
 is limited to one, and if he dies before attaining twenty-one 
 years, or without issue, both events must concur, in order to 
 pass the estate over, otherwise, upon the happening of either 
 event, the estate becomes absolute in him." And the same rule 
 of construction extends to devises of personalty ; as where the 
 testator bequeathed a sum of money to A., if he attained the 
 age of twenty-one, but if he should not attain that age, or die 
 without leaving issue male, then over, it was held that the estate 
 vested absolutely in A. upon his attaining the age of majority." 
 In these instances " or " is read as " and" And where the estate 
 is made to depend upon the devisee dying during the lifetime 
 of another, or under twenty-one, and without leaving issue, the 
 word " or " must be read " and." ao 
 
 § 95. There is a class of cases where the word " and" is 
 used disjunctively by the repetition of the verb. Thus a de- 
 vise to the testator's two sons, and in case both the sons should 
 die unmarried, and neither of them should have any issue le- 
 gally begotten, then over ; it was held to imply, that if one of 
 of the sons died unmarried, and the other without 1 issue, the 
 estate over would vest" 
 
 § 96. The expression " reviving son ' ' has been construed as 
 " surviving son," where such was the evident intention." " Her " 
 
 "Woodstock v. Shillito, 6 Sim. 416. Joint terms, as it was claimed, 
 were here construed as several. 
 
 18 1 Jarman, 472; Kobertson v. Johnston, 34 Ga. 102; Kelso v. Dickey, 7 
 "W. & S. 279 ; May v. Enslin, 2 Mass. 554 
 
 "Mytton v. Boodle, 6 Sim. 457. 
 
 50 Miles v. Dyer, 5 Sim. 435. 
 
 21 "Wilson v. Bayly, 3 Br. P. C. Toml. 195. 
 
 s! Pond v. Bergh, 10 Paige, 140. 
 
CH. VI.] CONSTRUCTION OP "WILLS. 41 
 
 ■was construed " their," in another case." So " heirs " has been 
 read " children," ** and " children" has been held equivalent to 
 " issue ; " " and " children " has been held also to include 
 "grand-children."" 
 
 § 97. The general rule in regard to repugnancy is, that 
 where there is no fair and reasonable mode of reconciliation, 
 the latest of the contradictory provisions shall prevail. But 
 we have seen that courts will, if possible, adopt such construc- 
 tion as will uphold all the provisions of a will. And in carry- 
 ing this purpose into effect, it' is permissible to resort to any 
 reasonable intendment Therefore, where the testator has given 
 the same estate to two or more persons in different portions of 
 his will, it must be treated the same as if all the names had 
 been united in one gift, of the same estate." And, if necessary, 
 the relative order of devises or bequests will be reversed, as 
 where an estate is first given in fee to A, and then for life to 
 B." And it has been held that, where the testator makes a gen- 
 eral devise or bequest, which would include the whole of his 
 estate, and in other portions of his will makes specific disposi- 
 tions, these will be regarded as explanations or exceptions, out 
 of the general disposition ; and it is not important in such case, 
 whether the general or the special provisions come first in order, 
 since, in either case, the general disposition will be regarded as 
 made subject to the more specific ones. 29 
 
 § 98. Bepugnant words in a will, in whatever portion of the 
 instrument they appear, and which contravene the evident gen- 
 eral purpose and intention of the testator, in the other provis- 
 ions of the will, may be rejected or transposed." But words 
 
 58 Keith v. Perry, 1 Desaus. 353. 
 
 u Bowers v. Porter, 4 Pick. 198 ; Ellis v. Essex Merrimao Bridge, 2 Pick. 
 243. 
 
 86 Merryman v. Merryman, 5 Munf. 440. 
 
 26 Osgood v. Lovering, 33 Me. 404. 
 
 »' 1 Redf. Wills, § 32, pi. 1, 2. 
 
 3 8 Cro. Eliz. 9 ; Ridout v. Dowding, 1 Atk. 419 ; Plenty v. "West, 6 0. B. 201. 
 
 29 "Wallop v. Darby, Yelv. 309 ; Cuthbert v. Lempriere, M. & S. 158. 
 
 30 1 Redf. Wills, § 32, pi. 7; Halliday v. Dixon, 27 111. 33; Doed v. Sten- 
 lake, 12 East. 515. 
 
42 WORDS SUPPLIED. [OH. VI. 
 
 must not be rejected as repugnant, unless it becomes impossible 
 to give them any reasonable application to the subject matter, 
 and then only when it becomes obvious from the context, taking 
 in the entire scope of the will, that such result comes nearest the 
 testator's intention ; and where there seems an invincible repug- 
 nancy, and it is impossible to determine which clause the testa- 
 tor did intend to prevail, other things being precisely equal, 
 the latter clause must prevail over an earlier one. 31 
 
 § 99. It is an established rule in the construction of wills, 
 that where it is evident the testator has not expressed himself 
 as he intended, and supposed he had done, and the defect is 
 produced by the omission of some word or words ; and where 
 it is certain, beyond reasonable doubt, what particular words 
 were thus omitted, they may be supplied by intendment, and 
 the will read and construed, as if those words had been written 
 in the •place, or places, where they were intended to have been. 
 But no word can be thus supplied, if there is any fair ground 
 to question what particular words were intended to have been 
 used which were not. By this however is meant, that so long 
 as different persons may be supposed to entertain different 
 opinions, in regard to the particular words intended to have 
 been used, or, at least, as to the import of those words, the will 
 must be read as it appears, and the meaning extracted, as it best 
 can be, from what is written. But the fact, that different per- 
 sons may entertain different opinions, in regard to which of two 
 or more words of nearly the same import, was omitted in the 
 will, forms no objection to supplying the omission. 32 
 
 § 100. The cases are numerous where words have been 
 supplied or changed ; as, " Die without issue," is often read 
 " Die without leaving issue," or " without issue living." as So, 
 " or " is often read as " and," and vice versa. 
 
 31 Morral v. Sutton, 4 Beav. 478; 1 Redf. Wills, § 32, pi. 13 to 19 inclu- 
 sive, and cases cited. 
 
 32 Redf. Wills, § 33, pi. 1, 2 ( and notes ; 1 Jarman, 456. 
 
 83 Mosby v. Corbin, 3 A. K. Mar. 289 ; Holms v. Williams, 1 Root, 332 ; 
 McKeehan v. Wilson, 53 Penn. St. 74. 
 
CH. VII.) REMEDY WHERE THERE ARE DOUBTS. 43 
 
 CHAPTEE VII. 
 
 REMEDY WHERE THERE IS A REASONABLE DOUBT OF THE 
 PROPER CONSTRUCTION. 
 
 § 101. If executor has doubts of the proper construction, he may proceed in 
 chancery. 
 
 102. Costs of proceeding are to be paid by the estate. 
 
 103. General rules of evidence in regard to contracts govern these cases. 
 
 104. Parol evidence not admissible to vary or contradict the will, or to 
 
 supply an omission, but may be used to explain a latent ambi- 
 guity. 
 
 105. Concerning the power of courts of equity to correct mistakes in a 
 
 will. 
 
 106. Chancellor Kent, quoted. 
 
 107. Sir James Wigram's seven propositions. 
 
 108. Evidence of testator's declarations as affecting construction. 
 
 109. Points settled in reference to the testator's declarations. 
 
 110. Extrinsic evidence including the testator's declarations as to his in- 
 
 tention to release a debt. 
 110a. By statute the appointment of a debtor for executor does not release 
 the debt, with certain exceptions. 
 
 111. Concerning the rights of a creditor who is a legatee. 
 
 112. Declaration of the testator in case of latent ambiguity. 
 
 113. His declarations concerning acts of revocation. 
 
 114. Where will is contested on the ground of fraud, etc., his declarations 
 
 admissible for some purposes. 
 115-118. Cases in illustration. 
 
 119. Concerning proof of the testator's intention in case of ambiguity. 
 
 120. Cases not strictly of latent ambiguity stated, and where extrinsic 
 
 evidence is necessary to point out the person or thing intended. 
 
 121. A complete blank in the name of the legatee cannot be supplied. 
 
 Not so if a part of the name is omitted. 
 
 122. If name answers to any person known to testator, courts will not 
 
 admit evidence showing it was intended for another. 
 128. Extrinsic evidence not admissible in favor of one to whom no part 
 
 of the description applies. 
 124. Situation, etc., of testator to be taken into account, as well as other 
 
 provisions of the will in constructing each part of it. 
 
 § 101. Where an executor holds real or personal estate un- 
 der any trust created by a will, and doubts arise in regard to 
 the true construction of such will, and there are different claim- 
 
44 BY BILL IN CHANCERY. [CH. VII. 
 
 ants, lie may proceed by bill in chancery, setting forth the 
 facts, and calling upon the claimants to settle their rights be- 
 fore the court, and praying the order of the court, in regard to 
 the mode of executing the trust 1 But the suit may be brought 
 by any party, claiming an interest under the will, against the 
 executor, and all parties interested in the question. * 
 
 These bills are denominated in Story's Equity Jurisprudence, 
 " bills in the nature of bills of interpleader." 
 
 § 102. The costs in these cases are generally chargeable 
 against the general assets of the testator. 3 
 
 § 103. The rules for the admission and exclusion of parol 
 evidence in regard to wills, are essentially the same which pre- 
 vail in regard to contracts generally. Therefore it cannot be 
 received to show the intention of the testator, except by ena- 
 bling the court, where the question arises, to give his language 
 such an interpretation, as is reasonable to presume, from the 
 circumstances in which he was placed, he intended it should re- 
 ceive ; or to put the court in the place of the testator. The in- 
 convenience and uncertainty which would result from wills 
 partly in writing and partly in parol, whereby parties could 
 never be certain what their rights were until settled by expen- 
 sive and tedious litigation, are sufficient reasons for the rule. 
 
 § 104. The testimony of the scrivener is not admissible to 
 show what directions were given him by the testator in regard 
 to drawing the will, 4 except in case of latent ambiguity. 6 And 
 evidence of statements made by the testator at the time he exe- 
 cuted the will, must be rejected, except in the case of a latent 
 ambiguity, or to rebut a resulting trust." And parol evidence 
 is not admissible to supply any omission or defect in a will, 
 
 >Treadwell v. Cordis; 5 Gray, 341; Dimmock v. Bixby, 20 Pick. 368; 
 Hooper v. Hooper, 9 Cush. 127. 
 
 2 Bowers v. Smith, 10 Paige, 193. 
 
 8 See 1 Kedf. Wills, § 36, pi. 4 and notes. 
 
 * Brown v. Selwyn, Cas. temp. Talbot, 240. 
 
 6 M'Allister v. Tate, 11 Rich. Law, 509. 
 
 « McClure v. Evans, 29 Beav. 422 ; Mann v. Mann, 1 Johns. Ch. 231, S. 0. 
 14 Johns. 1. 
 
CH. VII.] MISTAKE IN WILLS. 45 
 
 ■which may have occurred through mistake or inadvertence. 7 
 Nor is parol evidence admissible to show that the testator in- 
 tended to devise land situated in different sections from those 
 named in the will, and that the draughtsman of the will by- 
 mistake inserted the wrong description. In such case the 
 words of the description being unambiguous, and the thing de- 
 vised certain and specific, no extrinsic evidence is required to 
 identify the thing intended, nor admissible to show that a dif- 
 ferent thing was intended. 8 
 
 § 105. Courts of equity hold themselves competent to cor- 
 rect any mistake which is apparent on the face of the will, or 
 which can be made out by fair and reasonable construction 
 from the other parts of the will, in connection with, and as 
 expounded by, other circumstances." But the fact of a mistake 
 being made, and its precise character and extent, must clearly 
 appear upon the face of the will itself, or from fair and obvious 
 legal construction, aided by such facts and circumstances as are 
 admissible for that purpose." 
 
 § 106. Chancellor Kent " declares it a well settled rule, that 
 parol evidence cannot be admitted to supply or contradict, en- 
 large or vary the words of a will, nor to explain the intention 
 of the testator, except in two specified cases : 1. 'Where there 
 is a latent ambiguity, arising dehors the will, as to the person 
 or subject-matter meant to be described ; and 2, to rebut a re- 
 sulting trust All the cases profess to go upon one of these 
 grounds. 
 
 § 107. And Sir James "Wigram, treating of the law respect- 
 ing the admission of extrinsic evidence in aid of the interpreta- 
 tion of wills, has divided the subject into seven propositions, as 
 follows : 
 
 " L A testator is always presumed to use the words in which 
 
 'Newburg v. Newburg, 5 Mad. 364; Stanley v. Stanley, 2 Johns. & H. 
 491. 
 
 8 Kurtz v. Hibner, 55 111. 514. 
 
 9 Mellish v. Mellish, 4 Ves, 45 ; Phillips v. Chamberlain, 4Ves. 51. 
 
 10 Story, Eq. Jur. § 181. See post, § 127-131. 
 
 11 Mann v. Mann, 1 Johns. Ch. 231 j Kurtz v. Hibner, 55 111. 514. 
 
46 EXTRINSIC EVIDENCE. [CH. VII. 
 
 he expresses himself, according to their strict and primary ac- 
 ceptation, unless, from the context of the will, it appears that he 
 has used them in a different sense, in which case the sense in 
 which he thus appears to have used them, will be the sense in 
 which they are to be construed. 
 
 " II. Where there is nothing in the context of a will, from 
 which it is apparent that a testator has used the words in 
 which he has expressed himself in any other than theix strict 
 and primary sense, and where his words so interpreted are sen- 
 sible with reference to extrinsic circumstances, it is an inflex- 
 ible rule of construction, that the words of the will shall 
 be interpreted in their strict and primary sense, and in no 
 other, although they may be capable of some popular or 
 secondary interpretation, and although the most conclusive evi- 
 dence of intention to use them in such popular or secondary 
 sense be tendered. 
 
 " III. Where there is nothing in the context of a will, from 
 which it is apparent that a testator has used the words in which 
 he has expressed himself in any other -than their strict and pri- 
 mary sense, but his words, so interpreted, are insensible with 
 reference to extrinsic circumstances, a court of law may look 
 into the extrinsic circumstances of the case, to see whether the 
 meaning of the words be sensible in any popular or secondary 
 sense, of which, with reference to these circumstances, they are 
 capable. 
 
 " IV. Where the characters in which a will is written are 
 difficult to be deciphered, or the language of the will is not un- 
 derstood by the court, the evidence of persons skilled in de- 
 ciphering writing, or who-understand the language in which 
 the will is written, is admissible to declare what the characters 
 are, or to inform the court of the meaning of the words. 
 
 " V. For the purpose of determining the object of the tes- 
 tator's bounty, or the subject of disposition, or the quantity of 
 interest intended to be given by his will, a court may inquire 
 into every material fact relating to the person who claims to be 
 interested under the will, and to the property which is claimed 
 as the subject of disposition, and to the circumstances of the 
 
CH. VIT.J CONSTRUCTION OF WILLS. 47 
 
 testator and of his family and affairs, for the purpose of ena- 
 bling the court to identify the person or thing intended by the 
 testator, or to determine the quantity of interest he has given 
 by his wilL The same, it is conceived, is true of everv disputed 
 point, respecting which it can be shown that a knowledge of 
 extrinsic facts can, in any way, be made ancillary to the right 
 interpretation of a testator's words. 
 
 " VI. Where the words of a will, aided by evidence of the 
 material facts of the case, are insufficient to determine the tes- 
 tator's meaning, no evidence will be admissible to prove what 
 the testator intended, and the will (except in certain special 
 cases, see next proposition) will be void for uncertainty. 
 
 " VII. Notwithstanding the rule of law, which makes a will 
 void for uncertainty, where the words, aided by evidence of the 
 material facts of the. case, are insufficient to determine the tes- 
 tator's meaning, courts of law, in certain special cases, admit 
 extrinsic evidence of intention, to make certain the person or 
 thing intended, where the description in the will is insufficient 
 for that purpose. These cases may be thus defined : Where 
 the object of a testator's bounty, or the subject of disposition 
 (i. e., the person or thing intended), is described in terms which 
 are applicable indifferently to more than one person or thing, 
 evidence is admissible to prove which of the persons or things 
 go described was intended by the testator." 
 
 § 108. Evidence of the testators' declarations has been re- 
 ceived in order to affect the validity, operation and construc- 
 tion of wills, and the reports abound with cases showing both 
 its admission and its refusal for these purposes. 12 
 
 § 109. The following points however appear to be settled ' 
 by a preponderance of authority : 
 
 No declaration of the testator, whether made before, contem- 
 poraneously with, or subsequent to, the making of the will, can 
 be received to affect its construction. 13 
 
 18 Perhaps Cowen & Hill's Notes to Phil. Ev. 646, et. seq., where the 
 cases pro and con are collected, contains as full and satisfactory a discus- 
 sion of this question as can he found anywhere. 
 
 "Farrar v. Ayres, 5 Pick. 404; Barrett v. Wright, 13 Pick. 45; Bradley 
 
48 testatoe's declarations, [ch. VII. 
 
 § 110. But courts of chancery admit extrinsic evidence to 
 show the testator's intent in some cases in giving a legacy ; and 
 hence his acts and declarations may be shown for the purpose ; 
 as in cases where a legacy is given to his debtor, and the will 
 either takes no notice of the debt, or leaves the testator's in- 
 tention doubtful, extrinsic evidence may be admitted to show 
 whether he intended to release the debt" Generally a legacy 
 is taken as a gift. But where it is given to a creditor, and is 
 equal to, or greater in amount than an existing debt, where it 
 is of the same nature, is certain and not contingent, and no par- 
 ticular motive is assigned for the gift ; in all such cases the 
 legacy is deemed, or as some authors state it, presumed, to be 
 a satisfaction of the debt. 16 But, as Mr. Bedfield remarks," the 
 rule has not been looked upon with much favor, and all con- 
 ceivable exceptions to it have been allowed, and the declara- 
 tions of the testator in regard to his intentions have been con- 
 stantly received to rebut the presumption. 17 
 
 § 110 a. By the statute, title Wills, § 19, it is provided that, 
 in no case where the testator shall, by his will, appoint hia 
 debtor to be his executor, shall such appointment operate as a 
 release or extinguishment of any debt due from such execu- 
 tor to the testator, unless the testator shall, in such will, ex- 
 pressly declare his intention to bequeath or release such debt ; 
 
 v. Bradley, 24 Mo. 311 ; Avery v. Chapel, 6 Conn. 270. But as to whether 
 and when the presumption that two legacies given to the same person for 
 the same amount, and for the same expressed reason, are cumulative, can 
 be contradicted, see Gresley's Eq. Ev. 294-297. 
 
 14 1 Story Eq. Jur. § 1123 ; 3 Greenl. Ev. § 366 ; 1 Redf. Wills, § 39 pi. 3. 
 
 15 2 Story Eq. Jur. § 1119-23. But this rule never having rested upon 
 any very satisfactory foundation, has been so much shaken by eminent 
 American authorities, that it can scarcely be said with propriety to exist. 
 The court express no opinion upon it, though it was alluded to in Ma- 
 loney v. Scanlan, 53 111. 122. In Clark v. Bogardus, 12 Wend. 67, the court 
 say, that 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 a pre-existing debt of the testator, unless it appears to have been his in- 
 tention that it should so operate. Williams v. Cary, 4 Wend. 443. 
 
 "Wills, Vol.1, §39, pi. 3. 
 
 "53111.122. 
 
CH. VII. J LEGACIES — LATENT AMBIGUITIES. 49 
 
 nor even in that case, unless the estate of the testator is suffi- 
 cient to discharge the whole of his just debts, over and above 
 the debt due from the executor. 
 
 § 111. In the case of Moloney v. Scanlan, it was held that a 
 creditor has a right to have his debt allowed against the estate, 
 to be paid in due course of administration with other debts in 
 the same degree, and this right cannot be defeated by a legacy 
 which has not been and may never be paid. But when the 
 debt has been allowed and paid, and he demands from the ex- 
 ecutor his legacy, the latter can raise the question whether it 
 was intended by the testator as a gift, or merely as a satisfac- 
 tion of such debt. 
 
 § 112. Declarations of the testator made before or after the 
 execution of the will, are admissible, and are the most satis- 
 factory proof, in regard to latent ambiguities. "Where the 
 words of a will apply with equal propriety, or with legal cer- 
 tainty, to two or more subjects, or objects, the decision must be 
 made by determining which was in the mind of the testator at 
 the time he used the terms in question. 16 For this purpose 
 evidence was admitted as to which the testator intended, where 
 he used the name of John Cluer, there being father and son of 
 that name." If the words do not apply with equal propriety 
 to more than one subject or object, there is no latent ambigu- 
 ity, and no occasion for extrinsic evidence exists. ™ 
 
 § 113. Declarations of the testator accompanying an act of 
 revocation named in the statute, which is equivocal in its 
 character, such as slightly burning, tearing or obliterating the 
 will, may be given in evidence, for the purpose of showing the 
 intent with which the act was done." 
 
 § 114. When a will is contested on the ground of fraud or 
 
 18 Doe d. v. Allen, 12 Ad. & Ellis, 451. See 1 Bedf. Wills, § 40, notes 2 and 3. 
 
 19 Jones v. Newman, 1 W. Bl. 60. The books ara full of cases supporting 
 
 the text. 
 s ° Doe d. v. Westlake, 4 B. & Aid. 57. 
 51 Waterman v. Whitney, 5 N. T. 157, and cases cited. Doe d. v. Perkes, 3 
 
 B.&Ald.489. 
 4 
 
50 testator's declarations. [ch. VII 
 
 undue influence, the testator's declarations are competent evi- 
 dence for some purposes. 
 
 § 115. When the issue involves no question of the testator's 
 mental capacity his declarations are not admissible. They can- 
 not be received, therefore, to show the distinct external facts, 
 either of fraud or undue influence. For these purposes they 
 are considered as but hearsay evidence. 22 But there is a very 
 respectable array of authorities againt this doctrine." 
 
 § 116. But the testator's declarations, made at the time or 
 after executing the will, stating the contents of the same cor- 
 rectly, are admissible to show his knowledge of such con- 
 tents at the time the will was executed ; as, in case of a blind 
 person. 24 So letters written by a testator before the will was 
 made, are competent for the same purpose. 26 
 
 § 117. The testator's declarations may be given in evidence 
 when made before, or at, or after, but near, the time of making 
 the will, to show the condition of his mind ; as, that it was so 
 enfeebled when the will was made, as to be incapable of resisting 
 the importunities or influences which it is claimed were exerted, 
 upon him. 2 ". Of course the admissibility and weight of such 
 evidence would depend upon the distance of time, when the 
 declarations were made, from the date of the testamentary act, 
 and the character of the mental defect insisted upon. Senile 
 dementia, approaching by slow degrees, might be shown at 
 some distance of time before and after the testamentary act ; 
 but the delirium of drunkenness, or of fever, being of short du- 
 ration, must be established by acts occurring verv near the time 
 of the execution of the will. 
 
 82 Waterman v. "Whitney, 5 N. T. 157 ; Comstock v. Hadlyme, 8 Conn. 
 354; Boylan v. Meeker, 4 Dutcher, 274. 
 
 83 Beaubien v. Cieotte, 12 Mich. 459, cited, § 204. Roberts v. Trawick, 
 17 Ala. 55 ; lb. 13 Ala. 678 ; Means v. Means, 5 Strobh. 167. Patton v. Alli- 
 son, 7 Humph. 820 ; Reelgr. Reel, 1 Hawks, 248. See on this subject an 
 admirable note by Mr. Redfield, "Wills, Vol. 1, § 9, pi. 6 s. n. 41. 
 
 "Harleston v. Corbit, 12 Rich. 604; Davis v. Rogers, Houston, 44. 
 86 McNinch v. Charles, 2 Rich. 229. 
 
 88 Robinson v. Hutchinson, 26 Vt. 38 ; "Waterman v. "Whitney, 5 N. T. 157; 
 Comstock v. Hadlyme, 8 Conn. 254; Kinne v. Einne, 9 Conn. 102. 
 
CH. VII.] testator's declarations. 51 
 
 § 118. The testator's declarations may be proven though 
 made many years before the execution of the will, and before 
 his mind was enfeebled, to show, by way of establishing an al- 
 legation of undue influence, that he intended to exclude partic- 
 ular near relatives, who would, but for the will, have inherited 
 his estate ; as, that he had repeatedly declared that none of his 
 property should ever go to the family of his brothers, to whom 
 his will gave it, and by which his three sisters were nearly dis- 
 inherited ;" or to rebut an allegation of undue influence ; as, 
 that the testator had already made provision for his disinher- 
 ited children, and should give them nothing more ; and the for- 
 mer wills in which he had made no provision for them may be 
 given in evidence for the same purpose. 28 
 
 § 119. We have already seen that extrinsic evidence may 
 be received in case of latent ambiguity to show the object of 
 the testator's bounty, or the subject of disposition intended by 
 his will; as, in the case of Reynolds v. Whelan,™ where the 
 testator gave a legacy to his farming man, W. E, he having 
 two farming men of that name, evidence of the testator's inten- 
 tions in favor of one of them was received ; or, as, in case he 
 should devise his house in the city of E., he having two houses 
 in that city. In both of these cases proof of the testator's 
 declarations as well as other testimony may be received. 30 
 
 § 120. There is also a class of cases where the description 
 of the devisee or of the devise is correct in part, and in part in- 
 correct ; as, where the name of the devisee is correctly given, 
 but his residence or his relation to the testator, or some other 
 circumstance, descriptive of the person is not accurate ; or an 
 estate is described as being in the occupany of B., when it is 
 in fact in that of A. Cases of this class are sometimes 
 disposed of as matter of construction, or upon the maxim, falsa 
 demonstratio non nocet, (a false description does not vitiate.) 
 
 2 <Dennison's Appeal, 29 Conn. 399. 
 
 28 Converse v. "Wales, 4 Allen, 512; Keel v. Potter, 40 Penn. St. 483. 
 
 23 16 Law J. Ch. 434. 
 
 30 See ante, §§ 111-115. 
 
52 DEVISEE UNCERTAIN. [CH. VII. 
 
 They are not strictly cases of latent ambiguity, 81 yet extrinsic 
 evidence must be heard to enable the court to determine if there 
 is a false description and to point out the person or thing meant. 
 And it has been held, that, if a person's name is mistakenly 
 given in a devise, yet if he is so described, that with reference 
 to extrinsic facts, the description clearly identifies him as the 
 person meant, the devise to him is good. 38 
 
 § 121. Where there is a complete blank in the name of the 
 legatee, it cannot be supplied by extrinsic evidence. 33 But 
 where a part only of the name is omitted, as the christian name, 
 it may be supplied. 84 "When such imperfect descriptions occur, 
 if the parol evidence fails to point out what was intended by 
 the testator, the gift must fail, for uncertainty, as in other cases 
 of latent ambiguity. 36 
 
 § 122. But where the name is found to answer to any per- 
 son known to the testator, courts will not admit evidence to 
 show that it was inserted by mistake for some other name, 
 although some portion of the description used would more 
 strictly apply to the other person than the one named. 86 
 
 § 123. It seems to be well settled, that extrinsic evidence 
 cannot, as a general thing, be received to support the claim of 
 one to whom no part of the written description applies. 37 And 
 the same rule applies to the description of the subject matter. 88 
 
 § 124 The situation and circumstances of the testator as to 
 his property and family, are always to be taken into the account, 
 and also the other provisions of the will, and the reasonable- 
 ness of the different constructions claimed. 8 * And extrinsic 
 
 81 Miller v. Traverse, 8 Bing. 344; Doe d. Le Chevalier v. Huthwaite, 
 3B. & Aid. 632; Mann v. Mann, 14 Johns. 1; Gillett v. Gove, 18W.R.423. 
 
 32 River's Case, 1 Atk. 410. 
 
 83 Hunt v. Hart, 3 B. C. C. 311. 
 
 34 Abbot v. Massie, 3 Vesey, 148 ; Price v. Paige, 4 Vesey, 679 ; Bradshaw 
 v. Thompson, 2 You. & C. 395. 
 
 35 1 Jarman, 413. 
 
 36 Holmes v. Custance, 12 Vesey, 279. 
 
 3 ' Hiscocks v. Hiscocks, 5M.&W. 362. 
 
 38 Miller v. Travers, 8 Bing. 244. 
 
 39 Morton v. Perry, 1 Met. 446 ; Jarvis v. Buttorick, ib. 480. 
 
GH. VIII.] MISTAKES IN WILLS. 53 
 
 evidence may be received in all cases to define the extent of 
 the subject matter intended to be included under general terms ; 
 but not to enlarge or vary the extent and meaning of the terms 
 used." 
 
 CHAPTEE VIII. 
 
 MISTAKE — THE POWER OP EQUITY TO CORBECT. 
 
 § 125. Courts may correct mistakes where the intention is apparent on the 
 face of the will. 
 
 126. The mistake must be clearly made out. 
 
 127. The principle applies to giving and revoking of legacies. 
 
 128. The effect of a false reason being given for giving or revoking a 
 
 legacy. 
 
 § 125. " In regard to mistakes in wills," says Mr. Story, 1 
 " there is no doubt that courts of equity have jurisdiction to 
 correct them, when they are apparent on the face of the will, 
 or may be made out by a due construction of its terms ; for 
 in cases of wills the intention will prevail over the words. 
 But then the mistakes must be apparent upon the face of the 
 will, otherwise there can be no relief. * * * It must be a 
 mistake or clear omission, demonstrable from the structure and 
 scope of the will. Thus, if in a will there is a mistake in 
 the computation of a legacy, it will be rectified in equity. So 
 if there is a mistake in the name, or description, or number of 
 the legatees intended to take ; or in the property intended to 
 be bequeathed, equity will correct it 
 
 § 126. " But in each of these cases the mistake must be 
 clearly made out ; for if it is left doubtful, equity will not in- 
 terfere. So if the words of the bequest are plain, evidence of 
 
 40 Spencer v. Higgins, 22 Conn. 521 ; Brown v. Saltonstall, 3 Met. 423 ; 
 Long v. Duval, 6 B. Mon. 219. 
 >lEq. Jur.§§ 179-183, 
 
54 POWER OF EQUITY TO COEEECT. [CH. VIIL 
 
 a different intention is inadmissible to establish a mistake. 
 Neither will equity rectify a mistake, if it does not appear 
 what the testator would have done in the case, if there had 
 been no mistake. 
 
 § 127. " The same principle applies, where a legacy is re- 
 voked,, or is given upon a manifest mistake of facts. Thus, if 
 a testator revokes legacies to A. and B., giving as a reason, 
 that they are dead ; and they are, in fact, living ; equity will 
 hold the revocation invalid, and decree the legacies. So if a 
 woman gives a legacy to a man, describing him as her hus- 
 band, and in point of fact the marriage is void, he having a 
 former wife then living, the bequest will, in equity, be decreed 
 void. * * But where the testator and the legatee A. 
 Gr. were married, both knowing at the time, that the legatee 
 had a prior husband alive ; and afterwards the testator gave all 
 the residue of his estate to the legatee, describing her as his 
 wife, A. G., it was held, that the legacy was good ; for as both 
 parties had a guilty knowledge of the facts, no fraud was com- 
 mitted on the testator. 
 
 § 128. " But a false reason given for a legacy, or for a revo- 
 cation of a legacy, is not always a sufficient ground to avoid 
 the act or bequest in equity. To have such an effect, it must 
 be clear, that no other motive mingled in the legacy, and that 
 it constituted the substantial ground of the act or bequest." 
 
 § 129. But it is well settled that mere mistakes in the ex- 
 ecution of a will, where no fraud is imputable to the parties 
 interested, or their agents, cannot be corrected in a court of 
 equity. 2 Thus where a statutory requirement does not appear 
 on the face of the will, 8 or where the name of the wrong lega- 
 tee is inserted by mistake of the scrivener. 4 
 
 s Story Eq.Jur. (ed. 1861) §180 a. 
 
 3 Nutt v. Nutt, 1 Ereem. Ch. (Miss.) 128. 
 
 i Yates v. Cole, 1 Jones' Eq. 110 ; Goode v. Goode, 22 Mo. 518. 
 
CH. IX ] ALTERATION OF THE LAW, ETC. 55 
 
 CHAPTER IX. 
 
 ALTERATION OF THE LAW. — ITS EFFECT ON THE SETTLE- 
 MENT OF ESTATES. 
 
 § 130. Changes in the statute of Illinois in relation to administration, de- 
 scent, distribution and will stated. 
 131. Effect of changes. 
 
 § 130. The statutes respecting the administration, and the 
 descent and distribution of estates of deceased persons having 
 been materially changed by several acts which took effect July 
 1, 1872, some questions will naturally arise out of those 
 changes, in regard to proceedings in administration, and to the 
 rights of heirs and distributees. 
 
 § 131. The principle is familiar to every lawyer, that where 
 a change of the statute regulating the mode of proceeding is 
 made during the pendency of a suit, the subsequent proceed- 
 ings therein must conform to the new statute as nearly as the 
 case will admit According to this principle, the proceedings 
 in administration begun before July 1, 1872, must thenceforth 
 conform to the provisions of the new statute. But it is also 
 equally well settled that the rights and interests of widows, 
 creditors, heirs, devisees and legatees vest from the moment of 
 the decease. 1 Hence, in determining their rights in the premi- 
 ses, resort must be had to the statute in force at the time of the 
 decease. 
 
 > Haywood v. Haywood, 20 Pick. 519 ; Cary v. Taylor, 2 Vern. 302; 
 Kingsbury v. Scovill, 28 Conn. 349; Sturgis v. Ewing, 18 111. 176. 
 
56 JURISDICTION — LOST WILL, ETC. [CH. X. 
 
 CHAPTER X. 
 of proving and contesting wills. 
 
 Part 1. Jurisdiction — Lost "Will — Witnesses on Ap- 
 peal. 
 
 § 132. Jurisdiction — In what court. 
 134 In what county to be proven— In what county foreign wills may 
 he probated. 
 
 135. Duty of the executor appointed in the will to cause the will to be 
 
 probated. Penalty for neglect. 
 
 136. Persons having possession of will to deliver it to the proper court — 
 
 Attachment for neglect — Penalty — Altering, destroying or se- 
 creting — Penalty. 
 
 137. Proof of testator's death. 
 
 138. Proof of death — How made. What proof to be made in order to 
 
 show jurisdiction. 
 
 139. Presumption of death from long absence. 
 
 140. In what cases proof of the exact date of death important. 
 
 141. Proof of death by reputation. 
 
 143. Lost will may be proved and admitted to probate. 
 
 143. What must be proved in case of a lost will. 
 
 144. What search to be made for lost will — Mutilated or destroyed will — 
 
 Proof as to whether done with intent to revoke. 
 
 145. Mental capacity of testator in case of tearing, etc., and lost wills 
 
 must be proved as in other cases. 
 
 146. Duty of court to receive probate and grant letters. 
 
 147. Attesting witness to prove execution, which will be sufficient, pro- 
 
 vided fraud, etc., not shown. 
 
 148. Case of Brownfield v. Brownfleld — What proof of execution suf- 
 
 ficient. 
 
 149. Testimony admissible to support the will on appeal from the county 
 
 court. 
 
 150. If probate is refused by the county court the testator's sanity may 
 
 be shown on appeal by the testimony of other than the subscrib- 
 ing witness. 
 151, 152. Parties interested may contest the validity of wills in the pro- 
 bate court, and examine other than attesting witnesses, to invali- 
 date them. 
 
 153. The rules for admission of other evidence stated. 
 
 154. Comments on foregoing rules. 
 
CH. X.j JUEISDICTION OF PEOBATE. 57 
 
 § 132. The Constitution, Art. VI, § 18, provides, that county 
 courts shall have original jurisdiction of all matters of probate, 
 and settlement of the estates of deceased persons. 
 
 § 133. By Laws of 1851, p. 193 (§ 3 Gross' Stat. p. 530, § 33), 
 clerks of county courts are authorized and empowered in vaca- 
 tion to grant letters testamentary and of administration, subject 
 to the approval or disapproval of the court at its next session. 
 
 § 134. The statute, title "Wills, § 11, provides, that if any tes- 
 tator shall have a mansion house or known place of residence, 
 his will shall be proved in the county where such mansion 
 house or place of residence shall be. If he has no such place 
 of residence, and lands are devised in his will, the probate shall 
 be in court of the county where the lands lie, or where-some of 
 them are situated, if in different counties ; and if he has no 
 such known place of residence, and there are no lands devised 
 in his will, the same may be proved either in the county where 
 the testator died or that wherein his estate, or the greater part 
 thereof, shall be. And the first clause of § 10, title Wills, pro- 
 vides that all wills and codicils, which have heretofore been, 
 or shall hereafter be, executed out of this state, may be admit- 
 ted to probate in any county in this state in which the testator 
 was seized of lands, or other real estate, at the time of his 
 death, in the same manner, and upon like proof as if the same 
 had been executed in this state, whether such will or codicil 
 has first been probated, in the state, territory or country in 
 which it was executed or not. 
 
 § 135. The statute, title Administration, § 2, declares that 
 it shall be the duty of any person knowing that he is appointed 
 as the executor of the will of any person deceased, within thirty 
 days next after the decease of the testator, to cause such will to 
 be proved and recorded in .the proper county ; or to present 
 the will and declare his refusal to accept of the executorship 
 (see Form No. 5) ; and every such executor neglecting so to do, 
 without just excuse for such delay, shall forfeit the sum of 
 twenty dollars per month from and after the expiration of said 
 term of thirty days, until he shall cause probate of said will to 
 be made, or present the same as aforesaid, to be recovered by 
 
58 PROOF OF EXECUTION. [CH. X 
 
 action of debt, for the use of the estate, by any person who 
 will sue for the same in any court having jurisdiction thereof. 1 
 
 § 136. And section 12 of the statute, title Wills, provides 
 that any person who may have in his possession any will of 
 another, for safe keeping or otherwise, shall, immediately upon 
 the death of the testator, deliver the same to the county court 
 of the proper county ; and upon a failure or refusal so to do, 
 the county court may issue an attachment, and compel the pro- 
 duction thereof, and the person thus withholding any such will 
 or codicil, shall forfeit and pay twenty dollars per month, from 
 the time the same shall be thus wrongfully withheld, to be re- 
 covered by action of debt for the use of the estate, by any per- 
 son who will sue for the same, in any court having jurisdiction 
 thereof. And if any person to whom a will or codicil shall be 
 delivered by the party making it, for safe custody as aforesaid, 
 shall alter or destroy the same without the direction of the said 
 party (the testator), or shall wilfully secrete it for the space of 
 six months after the death of the testator shall be known to 
 him, the person so offending shall, on conviction thereof, be 
 sentenced to such punishment as is or shall be inflicted by law 
 in cases of larceny. 
 
 § 137. Upon presenting the will to the court for probate, 
 proof must be made, to the satisfaction of the court, of the 
 testator's death. His death alone gives such an instrument 
 conclusive force and operation, and is absolutely essential to 
 give the court jurisdiction of its probate. The proof must 
 show every other fact necessary to give the court jurisdiction. 
 
 § 138. This proof is made in the form of an affidavit, by 
 the executor or other competent witness, stating the time and 
 place of the testator's death, his place of residence, and that 
 he died testate. If he had no place of residence, and his will 
 contains a devise of lands, it states that fact, and in what county 
 they are situated. If he had no place of residence, and no 
 lands are devised in his will, it states in what county he died, 
 
 1 There does not appear to be any time fixed by statute beyond which a 
 ■will cannot be probated in Illinois. But as to letters of administration, 
 see post, § 236. 
 
CH. X] PBOOF OP DEATH — DATE. 69 
 
 or in which his estate or the greater part of it is situated. If 
 the testator died out of the state, it sets forth in what county 
 lands are situated of which he died seized. (See ante, § 134.) 
 These are jurisdictional facts and should be made in some way 
 to appear to the court, before receiving evidence of the execu- 
 tion of the will ; and the record of the probate should show 
 that all the facts necessary to give the jurisdiction were made 
 to appear to the satisfaction of the court. (See Form No. 1, 
 also Form of Oath, No. 9.) 
 
 § 139. There are cases in which proof of actual death can- 
 not be made ; as, where a person has been absent and not heard 
 from, or of whom no account can be given. In such cases the 
 presumption of life ceases at the end of seven years, from the 
 period when he was last heard from. But no presumption 
 arises in regard to the particular time when death occurred ; 
 the party interested in showing the death at any particular 
 time assumes the burden of proof, and may show it by any 
 faots and circumstances satisfactory to the triers. 3 
 
 § 140. In ordinary cases the exact time of death is not im- 
 portant But where a legacy is given to one, and the heir, 
 residuary legatee or devisee questions whether he was not dead 
 at the time of the testator's decease, the exact hour even of 
 death might be of the utmost consequence : for if the legatee 
 died before the testator, the legacy, unless given to a child or 
 grandchild, would lapse, 8 in the absence of a special provision 
 for such a contingency, and would go to the heir, residuary leg- 
 atee or devisee. This however does not concern the mere pro- 
 bate of the will. The fact of the death, or lapse of time from 
 which death may be presumed, is all the court is required to 
 consider, upon the application for that purpose. Its exact date 
 is important in general only when the testator's estate is dis- 
 tributed, and as between the heirs and legatees. But in the 
 case of the Goods of Barrow, before Lord Penzance, it appeared 
 that Charles Barrow died in December, 1840, leaving a will, of 
 
 5 Whiting v. Hicholl, 46 111. 230. 
 8 Stat. Tit. Descent, § 11. 
 
60 LOST WILLS — HOW PROBATED. [CH. X 
 
 which his two daughters were executors. His only son, James 
 Barrow, had not been heard of since 1837. His two sisters now 
 applied for administration to him; but the question was, 
 whether they should take the grant as the father's executors, 
 or as their brother's next of kin. Held — "Where a man is pre- 
 sumed to be dead, the court does not presume him to be dead 
 before the seven years. Those persons therefore are entitled to 
 his estate who were his next of kin at the time of his death. 
 The sisters are therefore entitled to the grant directly, as his 
 next of kin. 4 
 
 § 141. In Ringhouse v. Keever, 49 HI. 470, which was an 
 action of ejectment, it was held that, though formerly, where 
 it was sought to prove death by reputation, proof of that rep- 
 utation among the kindred only of the deceased would be 
 admissible, yet the rule is now relaxed where the deceased left 
 no kindred that are known, and reputation among the acquaint- 
 ances of the deceased, is sufficient evidence of that fact. 
 
 § 142. And where a will is lost or mislaid, whether acci- 
 dentally or by design, its contents may be proved, and probate 
 granted of the same upon such evidence as is satisfactory to 
 the court Upon this point Mr. Grreenleaf s"ays : " If ' the will 
 is proved to be lost, it may still be admitted to probate, upon 
 secondary evidence, as in the case of lost deeds and other writ- 
 ings. And though, as we have seen, if the will, shown once 
 to have existed, cannot be found after the death of the testator, 
 the presumption is that he destroyed it, with intent to revoke, 
 yet this presumption may be rebutted by evidence. But if it 
 be so rebutted, yet the contents of the will cannot be proved, 
 unless by the clearest and most stringent evidence. This evi- 
 dence must come from witnesses who have read the will, and 
 whose recollection of its contents is trustworthy. To authorize 
 the probate of a lost will, by parol proof of its contents, de- 
 pending upon the recollection of witnesses, the evidence must 
 be strong, positive and free from doubt. Courts are bound to 
 consider such evidence with great caution, and they cannot 
 
 4 3 Chicago Leg. News, 269. 
 
CH. X. J LOST WILL — SEARCH. 61 
 
 act upon probabilities." Therefore where the evidence showed 
 that the testator made a will, by which he undertook to make 
 distribution of his estate, in certain shares, between his wife 
 and children, but the witness would not swear positively as 
 to some parts of the will, the court held it an insuperable ob- 
 jection to the probate of the whole ; for the will was not such 
 an one as could be proved in part and unproved in part ; be- 
 cause the testator's intention could not be effectuated unless 
 the whole could be proved and take effect" But some cases 
 have allowed probate of so much of the will as can be satisfac- 
 torily established. 7 
 
 § 143. In case of a lost or destroyed will it should be shown, 
 1. That the will was duly executed ; 2. That it was in exist- 
 ence at the time of the testator's death ; or, 3. That it had been 
 accidentally destroyed, without his consent or knowledge, or 
 fraudulently, during his lifetime, or accidentally or fraudu- 
 lently after his death ; 4. Its contents. 
 
 , § 144. In case of loss it must be shown that an exhaust- 
 ive search has been made for the missing will, in all places 
 where there is the remotest possibility that it would be found, 
 before any secondary evidence can be received of its contents." 
 And it is competent, upon general principles, to introduce any 
 proof which shows that the instrument propounded is not a va- 
 lid subsisting will ; and for that purpose to show that the same 
 was revoked by a subsequent will, which was fraudulently de- 
 stroyed, or destroyed by the testator when incompetent to perr 
 form a testamentary act. 10 If a will is mutilated or partially or 
 
 5 2 Greenl. Ev. § 688o; lb. §§ 84, 509, 570; 2 lb. 681, and cases cited; 
 1 Redf. "Wills, § 28, pi. 9, and notes. 
 
 'Davis v. Sigourney, 8 Met. 486. « 
 
 'Steele v. Price, 5 B. Mon. 58; Jackson v. Jackson, 4 Mo. 210; Dickey 
 v. Malachi, 6 Mo. 177 ; Mr. Redfield justly observes that this must be a 
 very unjust rule, unless where it is obvious that the parts proved have 
 no dependence upon the other portions, or upon the distribution among 
 the next of kin or heirs. 1 Wills, § 28, note 14. 
 
 8 Jackson v. Hasbrouck, 12 Johns. 192 ; Featherly v. Waggoner, 11 Wend. 
 599. 
 
 10 Nelson v. McGiffert, 3 Barb. Ch. 158 
 
62 DESTROYED' WILL. — CODICIL. [CH. 
 
 wholly destroyed by the testator, or by his direction, while r 
 in a competent state of mind to make an effective revoi 
 tion, it will have no operative effect upon the instrument, ai 
 probate will be granted, the same as if no such act had be 
 done, so far as the contents of the instrument can be asc< 
 tained." It has been held that where a will was gnawed 
 pieces by rats, in the place of its deposit, probate may 1 
 granted upon such proof as is afforded by the memory of w: 
 nesses and the remaining fragments. A copy of an alleged lc 
 will is obviously far more satisfactory than any amount of tea' 
 mony dependent upon the memory of witnesses, but this is n 
 indispensable." But although the testimony of one witness, 
 of a copy verified by one witness, may be sufficient to establi 
 the contents of a lost will, it is unquestionably necessary th 
 the due execution of the instrument should be proved, as 
 ordinary cases. 13 
 
 As to when wills will be presumed to have been destroy 
 with intent to revoke, see ante, §§ 67, 70, 73, 74. 
 
 § 145. Tearing, cancelling, burning and obliterating a wi 
 as we have already seen, does not operate as a revocati< 
 thereof, unless the testator was of sound mind, and the act w 
 done with intent to revoke." To establish such wills the pi 
 ceedings would be the same as in case of lost wills. 
 
 Of course no lost will could be established without makii 
 the same proof of the execution and of the testator's capaci 
 as would be required in establishing other wills. 16 
 
 § 146. The statute, title Wills, § 7, provides that, when ai 
 will or codicil shall be exhibited in the county court, for pr 
 bate thereof, it shall be the duty of the court to receive proba 
 of the same without delay, and to grant letters testamenta 
 
 
 
 11 Rhodes v. Vinson, 9 Gill, 169 ; Apperson y. Cottrell, 3 Port. 51. 
 
 12 Jackson v. Swett, 3 Caine's Cases, 308; Jackson v. Russell, 4 Wen 
 543 ; Happy's Will, 4 Bibb. 553 ; 1 Green Ch. Rep. 330. 
 
 13 Bailey t. Stiles, 1 Green Ch. 330. 
 "Ante, §72. 
 
 16 See as to practice in the case of the proof of lost wills. Everitt v. I 
 eritt, 41 Barb. 385 ; Youndtv. Youndt, 3 Grant's Cas. 140. 
 
CH. X.] PROBATE — NECESSARY PROOF. 63 
 
 thereon to the person entitled to such letters ; and to do all 
 other needful acts to enable the parties concerned to make set- 
 tlement of the estate at as early a day as shall be consistent 
 with the rights of the respective persons interested therein. 16 
 
 § 147. Section 2 provides that, if two , of the attesting wit- 
 nesses shall declare on oath or affirmation, before the county 
 court of the proper county, that they were present and saw the 
 testator sign the will or codicil, in their presence, or acknowl- 
 edge the same to be his act and deed, and that they believed 
 the testator to be of sound mind and memory at the time of 
 signing or acknowledging the same ; 17 this shall be sufficient 
 proof of the execution thereof to admit the same to record : 
 Provided, that no proof of fraud, compulsion or other improper 
 conduct be exhibited, which in the opinion of the court shall 
 be deemed sufficient to invalidate or destroy the same; and 
 every will or codicil when thus proven to the satisfaction of 
 the court, shall, together with the probate thereof, be recorded 
 by the clerk of the court." 
 
 § 148. In the case of Brovmfield v. Brownfield, 43 111. 147, 
 Jarvis, one of the attesting witnesses, testified in reference to 
 the execution of the will, that the testator either signed the 
 ■will in his presence, or acknowledged his signature to him, but 
 could not remember which; and the court say, "There was no 
 error in admitting his testimony. If the testator did either, it 
 was all the statute requires, and he swears in positive terms, 
 that the testator did the one thing or the other. If so, the 
 requirements of the statute are answered." 
 
 § 149. And in Walker v. Walker, 2 Scam. 291, which was 
 an appeal from the probate court, refusing the probate of a 
 ■will, on the ground that the testator was of unsound mind and 
 
 16 It is no objection to the probate of a will that some of its provisions 
 are void or not susceptible of being carried into effect. The probate only 
 establishes the instrument so far as it is valid, and within the power of the 
 testator to effect his purpose in that mode. Clemens v. Patterson, 38 Ala. 721. 
 
 » Form No. 2. 
 
 18 For form of clerk's entry declaring the will properly proven and ad- 
 mitting it to record, see Form No. 6. 
 
•64 EVIDENCE OF SANITY [CH. X 
 
 memory, and was fried by a jury in the circuit court, and pro- 
 bate of the will allowed, the supreme court says : " The sub- 
 scribing witnesses alone should be permitted to testify to the 
 mental condition of the testator. The law requires this to be 
 done by them alone." " And this is the law as it stands at pres- 
 ent, so far as the county court is concerned. This decision was 
 upon § 5 of the act of 1829, which is the same as section 7 of 
 the present statute. 
 
 § 150. But by § 13 of the present statute, 2 " it is provided 
 that, when the probate of a will is refused by the county court, 
 and an appeal is taken from the order of the court refusing to 
 admit the will to probate, into the circuit court, it shall be law- 
 ful for the party seeking the probate of the will to support the 
 same on hearing in the circuit court, by any evidence compe- 
 tent to establish a will in chancery. Under this provision, in 1 
 the case of Andrews v. Black, 43 111. 256, the case of Wallcer 
 v. Walker was reviewed, and the effect of the 13th section 
 upon section 7 explained, and the conclusion reached that, as 
 the law now stands, on an appeal from the county court allow- 
 ing the probate of a will, no other evidence can be heard on 
 the trial, upon the question of the testator's sanity, than that 
 of the subscribing witnesses ; but where the probate has been 
 refused by the county court other testimony can be heard in 
 support of the will, and approves of the decision in Walker as 
 qualified by section 13. 
 
 § 151. And in the case of Duncan v. Duncan, 23 111, 364, which 
 seems to have been carelessly reported, there being no state- 
 ment of facts in the opinion or elsewhere, the court say," " The 
 statute of wills, we think, does .not prevent those having an 
 interest in the will, from contesting its validity and due execu- 
 tion in the probate court. * * It is apparent that the legis- 
 
 19 This decision is approved in Andrews v. Black, 43 111. 256. 
 
 80 Which is the same as § 1, Act 1845, R. 8. 596, and was passed since the de- 
 cision in Walker v. Walker. 
 
 21 It does not appear by the report whether this is an appeal from the 
 county court, except inferentially, and no statement is made of the points 
 in controversy. 
 
CH. X] CONTESTED WILL.— APPEAL. 65 
 
 lature designed to permit parties in interest to contest the 
 validity of the will, as well in the probate court as in chan- 
 cery." * * The contestants had the right to introduce evi- 
 dence to invalidate the will, and in doing so, we can perceive no 
 reason why they might not examine the witnesses who attested 
 the will, as well as others." 
 
 § 152. The ruling in the case last cited has been explained 
 and qualified in Andrews v. Black, just referred to, in the opin- 
 ion by Justice Lawrence, in which he says : " The appel- 
 lants quote the case of Duncan v. Duncan, as overruling that 
 of Walker v. Walker." 3 But the two cases are harmonious. All 
 that is decided in the case of Duncan v. Duncan, relative to 
 this subject, is,- that other persons than the subscribing wit- 
 nesses may be examined to invalidate the will. But the court 
 was not speaking upon the question of sanity, but in reference 
 to the latter clause of the second section which authorizes proof 
 to be given of fraud, compulsion or improper conduct. It is in 
 reference to this species of proof, that the court hold in Duncan 
 v. Duncan that other than the subscribing witnesses may be 
 sworn. This is a reasonable construction of the statute. It 
 directs what testimony, to be made by the subscribing wit- 
 nesses, shall be sufficient to entitle the will to record, with a 
 proviso, that no proof be exhibited of fraud, compulsion or im- 
 proper conduct. The first proof is confined to the subscribing 
 witnesses, but the testimony of any other person, not other- 
 wise disqualified, may be heard on the matters named in the 
 proviso." 
 
 § 153. In the light of these cases and of the statute under 
 which they arose it would be safe to say : 
 
 1. That in the county court, and in the circuit court, on 
 appeal from the order of the county court admitting a will to 
 probate, the subscribing witnesses alone can be permitted to 
 testify concerning the mental condition of the testator. 
 
 2. But on appeal from the order of the county court refusing 
 
 ** A devisee as well as an heir at law may contest a will, Wolf v. Bollinger, 
 in Sup. Ct. 1873 ; 5 Leg. News. 113. 
 33 2 Scam. 291. 
 5 
 
66 PROPER EVIDENCE. [CH. X 
 
 the probate, § 13 permits the party seeking the probate of the 
 will to support the same, on hearing in the circuit court, by 
 any evidence competent to support a will in chancery. This 
 opens the way in such cases for the examination on both sides 
 of witnesses who can testify to relevant facts concerning the 
 testator's mental condition. 
 
 3. Both before the county court and on appeal, where the 
 question is whether fraud, compulsion or other improper con- 
 duct has been used (see proviso to § 2) the testimony of other 
 competent witnesses may be heard on both sides. 
 
 § 154. We do not feel, however, like dismissing this subject 
 without saying in reference to the contest of wills on grounds 
 of fraud, compulsion or other improper conduct, that in order 
 to properly establish these objections, in a great number of 
 cases, the mental capacity or condition of the testator must 
 necessarily be shown, and that refusing to admit pertinent tes- 
 timony on this question, from other than attesting witnesses to 
 the will, would amount to a denial of essential advantages 
 intended to be secured by the proviso to § 2. In these cases 
 it would be useless to contest, unless upon appeal under § 13, 
 where the probate has been refused; in which case it is clear 
 both parties may introduce any other witnesses and all kinds 
 of pertinent evidence to prove the testator's mental condition. 
 If the probate were granted by the county court, in would in 
 those cases be useless to contest it by appeal, if the doctrine of 
 Duncan v. Duncan, as explained and modified by the case of 
 Andrews r. Black, is correct A contestant might as well at once 
 file his bill in chancery to set aside the will on the ground of 
 fraud, compulsion or other improper conduct. 
 
CH. X] OF THE WITNESSES, ETC. 67 
 
 CHAPTEE X. 
 
 Part H Of the Witnesses and the Sufficiency of 
 
 Peoof. 
 
 § 155. Non-resident witnesses — Testimony may be procured by dedimus. 
 How done. 
 
 156. Where county judge is an attesting witness — how his testimony 
 
 may be procured. 
 
 157. Deceased witnesses. Proof of handwriting. 
 
 158. Attesting witnesses who are beneficial devisees. Devise void as to 
 
 such, with certain exceptions. 
 
 159. Creditors of the testator may be witnesses. 
 
 160. What is sufficient proof of the execution. 
 162-164. Testators' acknowledgment of the execution 
 
 165. Witnesses need not know at the time that the instrument is intended 
 
 as a will. 
 
 166. Attesting witnesses, — what they must swear. 
 
 167. Where witnesses have forgotton what was said, or swear falsely, 
 
 and probate is refused, other witnesses may be examined. 
 
 168. Credibility and competency of witnesses. 
 
 169. Deceased witnesses and those who have removed to parts unknown. 
 
 170. Advantages of a proper attestation clause. 
 
 171. Codicils proved in the same manner as wills, and their proof often 
 
 sufficient proof of the wills. 
 
 § 155. The statute, title "Wills, § 4, provides that, "When 
 any will, testament or codicil shall be produced to the county 
 court, for probate of the same, and any witness attesting such 
 will, testament or codicil, shall reside without the limits of the 
 state, or the county in which such will, testament or codicil is 
 produced for probate, or shall be unable to attend said court, it 
 shall be lawful for the county court to issue a dedimus potesta- 
 iem, or commission, annexed to such will, testament or codicil, 
 directed to some judge, justice of the peace, mayor or other 
 chief magistrate of the city, town, corporation, or county where 
 such witness may be found, authorizing the taking and certi- 
 fying of his or her attestation in due form of law. And if 
 the person to whom any such commission shall be directed, 
 
68 HOW TESTIMONY PROCURED. [CH. X. 
 
 stall certify, in the manner that such acts are usually authenti- 
 cated, that the witness personally appeared before him, and 
 made oath or affirmation that the testator or testatrix signed 
 and published the writing annexed to such commission, or ac- 
 knowledged the execution thereof as his last will and testa- 
 ment ; or that some other person signed the testator's name by 
 his or her direction ; that he or she was of sound mind and 
 memory ; and that said witness subscribed ,his or her name as 
 witness thereto in the presence of the testator or testatrix, and 
 at his or her request, such oath or affirmation shall have the 
 same operation, and the will shall be admitted to probate in 
 like manner, as if said oath or affirmation had been made in the 
 court from whence such commission issued. (See Form of 
 Dedimus, No. 3.) 
 
 § 156. Section 5 of the same statute provides that, where a 
 county judge has become a witness to any will which is re- 
 quired by law to be proved before him as such county judge, 
 and his testimony is necessary to the proof of the same, it' shall 
 be his duty to go before the circuit court of his county, and 
 make proof of the execution of such will, in the same manner 
 that probate of wills is required to be made in other cases. 
 And it is the duty of the clerk of the circuit court, forth- 
 with to certify such will, proven as aforesaid, to the county 
 court of the county ; ' and such will shall have the same force 
 and effect that it would have had if the same had been proven 
 by one credible witness before the county court ; and if there 
 are other witnesses to such will, the county court shall take ■ 
 their testimony in support thereof, as in other cases. 
 
 § 157. Section 6 provides that, if one or more of the wit- 
 nesses to a will be dead, or shall have moved to parts unknown 
 to the parties concerned, so that his or their testimony cannot be 
 procured, the county court, or other court having jurisdistion 
 of the subject matter, may admit proof of the handwriting of 
 such witness or witnesses and such other secondary evidence 
 as is admissible in courts of justice, to establish written con- 
 
 1 Form No. 4. 
 
CH. X.J PKOBATE — .NECESSARY PROOF. 69 
 
 tracts in similar cases ; and' may thereupon proceed to record 
 the same, as if such will had been proved by such subscribing 
 witness or witnesses, in the usual manner. 2 
 
 § 158. Section 8 provides that, if any beneficial devise, 
 legacy or interest shall be made or given in any will, to any 
 person subscribing such will as a witness to the execution 
 thereof, such devise, legacy or interest shall, as to such witness, 
 be void, unless such will be otherwise attested by a sufficient 
 number of witnesses exclusive of such person, according to the 
 statute ; and he may be compelled to appear and give testi- 
 mony on the residue of such will, in like manner as if no such 
 devise or bequest had been made. But 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 such share shall 
 be saved to such witness as shall not exceed the value of the 
 said devise or bequest made to him as aforesaid. 
 
 § 159. Section 20 provides that, if any lands, tenements or 
 hereditaments shall be charged with any debt by any will 
 or codicil, and the creditor whose debt is so made a charge 
 upon such lands, etc., shall attest the execution of the same, 
 such creditor shall notwithstanding be admitted as a witness to 
 the execution of such will. 
 
 § 160. The statute has declared in section 2, what shall be 
 sufficient proof of the execution of a will to admit it to record. 
 It requires the testimony of two or more attesting witnesses to 
 the following facts : 
 
 1. That they were present and saw the testator sign the 
 will, or 
 
 2. That he acknowledged the same to be his act and deed, in 
 their presence. 
 
 3. That they believed the testator to be of sound mind and 
 memory, at the time of signing or acknowledging the will. 
 
 Under the first of these heads nothing need be said. The 
 statute has made this requisition as clear as words can make it. 
 (See ante, chap. IV.) 
 
 2 See § 169, and Form No. 2. 
 
70 SIGNING — ACKNOWLEDGMENT. [CH. X 
 
 § 161. Where the witnesses to the will are strangers to the 
 testator, his identity should be established by independent 
 proof of his handwriting, or in some other satisfactory mode. 3 
 
 § 162. The testator must acknowledge the instrument to be 
 his act and deed, in the witnesses' presence, if he did not sign 
 it in their presence. But the acknowledgment need not be 
 made to the witnesses in each other's presence, nor need the 
 will be attested by the witnesses in each other's presence. 4 
 
 § 163. In Allison v. Allison, 46 111. 61, the evidence showed 
 that, in the hearing of the testator and the witnesses, the attest- 
 ing clause was read, reciting that he had executed the instru- 
 ment as his will ; and the testator thereupon handed one of the 
 subscribing witnesses the pen, who having signed, handed it to 
 the other, but the testator said nothing which the witnesses 
 could remember ; this was held to be a sufficient acknowledg- 
 ment. The court declared that the statute does not require the 
 acknowledgment of a will by a testator to be in language ; any 
 act which indicates unmistakable certainty is sufficient ; clear 
 and explicit acts are to be regarded rather than form. And in 
 Holloway v. Holloway, 51 111. 159, the court said, ." It was im- 
 material whether the witnesses were present when the testator 
 signed the will, if he acknowledged it, and requested them to 
 sign as witnesses.'' 
 
 § 164. In Ohio, where the law requires, that if the wit- 
 nesses do not see the will subscribed by the testator, they shall 
 hear him acknowledge that he did subscribe it, it is not con- 
 sidered essential that this acknowledgment be made in words. 
 It may be done by signs, motions, conduct or attending cir- 
 cumstances. It is sufficient, if in any manner the witnesses 
 are given to understand, that the testator has signed the paper 
 as his will ; and this may be shown by direct or circumstantial 
 evidence, and is matter of fact to be determined by the jury." 
 
 3 Mowry v. Silber, 2 Bradf. Sur. 133. 
 
 4 3 Bl. Com. 377; White v. British Museum, 6 Bing. 310; 7 Bing. 457. 
 
 6 Raudebaugh v. Shelby, 6 Ohio, n. s. 307, 315 ; s. p. ; Coffin v. Coffin, 
 23 K Y. 9 ; and see Carle v, Underbill, 3 Bradf. Sur. 101 ; Peck v, Cary, 27 
 N. T. 9. 
 
ch. x] testator's capacity. 71 
 
 And it is sufficient if the witnesses sign before the testator ; 
 provided it be done at the same time and as part of the same 
 transaction. 8 
 
 § 165. The statute does not require the witnesses to know 
 at the time of attesting the paper that it is intended for a will. 7 
 
 § 166. Each of the attesting witnesses must swear that 
 he believed the testator to be of sound mind and memory at the 
 time of signing the will. In Allison v. Allison, 46 111. 61, which 
 was an appeal from the order of the county court allowing 
 probate of the will, 8 one of the attesting witnesses swore that 
 he did not know whether Allison, the deceased, was of sound 
 mind or not, and the court said, " He should have been inter- 
 rogated as to his belief. Although he had no positive knowl- 
 edge, he undoubtedly had an opinion on this point, and his 
 opinion or belief the law requires as indispensable to probate. 
 The statutory requirement of proof of soundness of mind can- 
 not be dispensed with." 
 
 § 167. "Where the attesting "witnesses cannot remember 
 what occurred at the time of the execution of the will ; or 
 where one or more of the witnesses under mistake, or for cor- 
 rupt purposes, swear that the formalities required by the statute 
 were not complied with, or that the testator was not of sound 
 mind and memory, and probate is refused by the county court, 
 for want of the formal proof required by the statute — upon 
 appeal in such case, or in defense to a bill in chancery to set 
 aside the probate of a will which has been allowed by the 
 county or circuit court, the testimony of other than the attest- 
 ing witnesses may be heard, to establish the will, and it may be 
 established even against the testimony of the latter, and upon 
 the weight of evidence. But the statutory requirements of 
 signing by the testator or by some one in his presence, and by 
 his direction, and the attestation by two or more witnesses 
 
 6 Vaughaa v.Burford, 3 Bradf. Sur. 78. 
 
 1 See 1 Redf. Wills, § 18 pi. 13 and note. 
 
 8 In which case we have seen, ante, §§ 149-153, that none but the attesting 
 witnesses can be heard relative to the testator's sanity. Andrews v. Black, 
 43111.256. 
 
72 ABSENT AND DECEASED WITNESSES. [CH. X 
 
 must be shown. 9 The law in such cases is very clearly stated 
 by Treat, C. J., in Bigg v. Wilton, 13 HI. 15, quoted at length. 
 (Post, §§ 181-184.) 
 
 § 168. And we have seen elsewhere (ante, § 44), that the 
 witnesses must be credible and competent at the time of attest- 
 ing the will ; but whether they will be allowed to testify to 
 the execution of the will, may depend upon events subsequent 
 to that time. They might become interested in the provisions 
 of the will, or infamous or insane, and their testimony be re- 
 jected. In such cases the will may be proved by other testi- 
 mony. 10 
 
 § 169. Where an attesting witness is dead or has removed 
 to parts unknown to the parties concerned, the fact of his death 
 or removal should be shown to the probate court," in order to 
 lay the foundation for the admission of proof of the hand writ- 
 ing of such witness, and of other secondary evidence, as pro- 
 vided in § 6 ; and the evidence of death or removal should be 
 preserved and recorded along with the other evidence in the 
 case. The degree of diligence required in the search for the 
 subscribing witnesses to a will is the same as the law requires 
 in all cases to prove a loss. It must be bona fide, earnest, and 
 intelligent, — r such as one puts forth in attempting to learn the 
 residence or place of business of any one, when it becomes im- 
 portant to his interest to learn such facts ; it must be made in 
 all places where the witnesses might be supposed to be found, 
 after making inquiry in all places and of all persons, where and 
 of whom intelligence may fairly be supposed attainable." 
 
 § 170. "We have seen, ante, § 42, that no attestation clause* 
 is necessary, yet there are very clear advantages in having it ; 
 for, where such a clause contains all the particulars of a good 
 execution, it will always be prima facie evidence of due execu- 
 tion, and will often prevail over the testimony of witnesses 
 
 '1 Eedf. "Wills, § 19, pi. 11. 
 
 10 Sears v. Dillingham, 12 Mass. 358. 
 
 11 The attesting witnesses must be produced or their absence accounted for 
 Chase v. Lincoln, 3 Mass. 236. 
 
 1! 1 Greenl. Ev. 574, and cases cited. 
 
CH. XI.] CODICILS. 73 
 
 who give evidence tending to show that some of the requisites 
 were omitted. 13 But the effect of the certificate of attestation 
 by a deceased witness, will not be regarded as of the same 
 force as his evidence if he were living ; for it is evidence of 
 an inferior nature. If supported by circumstances, although 
 opposed by the testimony of another subscribing witness, it 
 may be sufficient to support a verdict establishing a will ; but, 
 without any extraneous support, such a verdict against the 
 positive testimony of a living witness, could not be maintained 
 upon that evidence alone." 
 
 § 171. Codicils are proved in the same manner as wills, but 
 unless a codicil is written on the same paper with the will, 
 or by its terms unmistakably refers to the will, such will 
 should also be proved as if no codicil existed. In Duncan v. 
 Duncan ls it was held, that when a codicil to a will is written 
 on the same paper as the will, or unmistakably refers to it, 
 proof of the codicil is sufficient to establish such portions of 
 the will as are not thereby revoked. 
 
 CHAPTEE XI. 
 
 CONCLUSIVENESS OP PROBATE IN THE COUNTY COURT, 
 IN COLLATERAL ACTIONS. 
 
 § 172. Whether and to what extent probate in the county court is conclu- 
 sive in collateral actions. 
 
 § 172. The questions whether and how far the order of a 
 county court admitting a will to record is conclusive and will 
 bind other courts in collateral proceedings, have not been 
 authoritatively adjudicated under the law of 1849. ' As this 
 
 13 1 Redf. Wills, § 19, pi. 11, and note. 
 
 " Orser v. Orser, 24 N. T. 51 ; Craft v. Craft, 4 Swab. & Tristram, 10, cited 
 1 Chicago Leg. News, 19. 
 16 23 111. 364; see cases there cited. 
 'P. 62; Gross Stat. 526, § 5. 
 
74 CONCLUSIVENESS OF PEOBATE. [CH. XI 
 
 question is important where titles to land claimed under de 
 vises are in controversy, it may as well be considered here. Ii 
 the case of Ferguson v. Hunter, 2 Gilm. 657, which was ai 
 action of ejectment, it was held that the act of taking proof o 
 the execution of a will by a probate court is a ministerial, anc 
 not a judicial act, and that its acts in that respect may b< 
 inquired into in collateral proceedings. This decision wai 
 under the law of 1837, 2 providing for the election of pro 
 bate justices, and defining their powers, in which the taking o: 
 the probate of wills and recording the same, are expressly 
 declared to be ministerial acts. At that time probate court! 
 weie not courts of record. In 1849, county courts were estab 
 lished by statute,* declared to be courts of record, and thei; 
 powers defined. They were to have a seal and a clerk. Anc 
 by section 5, which is now in force, the clerk is to perform al 
 of the ministerial duties heretofore performed by the probat< 
 courts. But the granting of letters testamentary, or of admin 
 istration — except to collect — and repealing the same, anc 
 allowing or disallowing claims against estates of persons, deter 
 mining who are entitled to said letters, requiring the settlemen 
 of estates and directing the issuance of citations and attach 
 ments, are to be considered as general judicial powers unde: 
 the act. Now, have the creation of a new court having pro 
 bate jurisdiction, and the changes in the statutes above indi 
 cated, changed the effect of an order of the probate court so a: 
 to make it conclusive in collateral proceedings ? 
 
 It is a well settled principle that, the orders and judgments o: 
 any court having jurisdiction of the subject matter of controversy 
 and of the parties, are conclusive in all collateral proceedings 
 This principle is as applicable to probate cases as to any othei 
 class of cases, unless the statute expressly excepts them ; anc 
 there does not appear to be any such exception as applied tc 
 county courts. The statute appears to treat the action of a count] 
 court adjudging the proof of a will sufficient and ordering it re 
 
 5 P. 177; Gale's Stat. 437, § 5; copied into R. S. 1845, p. 426. 
 *Laws 1849, p. 62; Gro. Stat. 526. 
 
CH. XI. J CONCLUSIVENESS OF PEOBATE. 75 
 
 corded, as judicial, and not ministerial acts. The following pro- 
 visions may be cited in support of this view. 1. Sec. 2, title Wills, 
 provides in substance that, where fraud or compulsion or other 
 improper conduct is shown, which in the opinion of the court 
 is sufficient to invalidate or destroy the will, the court may re- 
 fuse to admit it to record. 2. The further provision of the 
 same section declaring that a will proven as in that section pro- 
 vided, to the satisfaction of the court, shall, together with the 
 probate thereof, be recorded by the clerk of the court, and shall 
 be good and available in law for the granting, conveying and 
 assuring the lands, goods, etc., thereby devised and bequeathed. 
 3. The right conferred by sec. 14 to appeal from the order of a 
 county court allowing or disallowing a will to probate. Bach 
 of these provisions would seem to be sufficient to show that 
 such an order was considered as a judicial act. If this is so, 
 the -order is binding upon the parties to it in all collateral pro- 
 ceedings, unless in cases hereafter mentioned. This brings us 
 to the question of the jurisdiction of the subject matter. What 
 facts confer this jurisdiction. They are 1st, The will. 2nd, 
 The death of the testator. 3d, The proceedings must be be- 
 fore the court of the proper county ; that is, the county where- 
 in is the mansion house or known place of residence, if he has 
 any, of the testator ; if he has no known place of residence, 
 and lands are devised by the will, such will must be proved in 
 the county wherein the lands, or some part of the same, lie ; 
 and if he had no known place of residence, and no lands are 
 devised by the will, the will may be proved in the county 
 where the testator died, or where his estate or a greater part 
 thereof was situated. (Sec. 11, title Wills.) In Illinois notice 
 of the application for probate is not required to be given to 
 heirs and others interested. They cannot therefore be bound 
 by any implied assent to the jurisdiction and proceedings. If 
 the court has not got jurisdiction of the subject matter, its pro- 
 ceedings are simply void, and may be attacked in a collateral 
 action. In Cutis v. Hashins, 9 Mass. 543, it was held, in an 
 action of ejectment, that the authority to grant administration 
 
76 IN COLLATEEAL ACTIONS. [OH. X 
 
 upon the estate of a deceased intestate who was at his deatl 
 an inhabitant of the state, was vested by the statute exclusive 
 ly in the judge of probate for the county where the deceasei 
 person dwelt at the time of his death, and the acts of any othe 
 judge of probate were void. It does not however appear froii 
 the report of that case, that the record of the probate cour 
 showed any proof of the residence of the deceased or any find 
 ing of the court of such residence. Had such a rinding of th 
 court appeared in the record it would be difficult to see ho\ 
 the grant of administration could have been attacked in ; 
 collateral proceeding. It would be the better doctrine to trea 
 the order of the court, where the facts necessary to sustaii 
 its jurisdiction of the subject matter appear in the proofs ii 
 the record or in the finding of the court, as conclusive to tha 
 extent, in collateral actions. 
 
 But the jurisdiction of the subject matter having been ob 
 tained by the court, could the subsequent proceedings of th 
 court be attacked ? It appears to me that they could. Tak< 
 the case of Ferguson v. Hunter. This was an action of eject 
 ment. The evidence to support the defendant's title consistec 
 in an exemplification of a paper purporting to be the will o 
 Jesse Davis, with the evidence of Foster, a subscribing witness 
 setting forth that he signed the will as a witness, in presence o: 
 the testator, and the testator signed it in his presence, bein| 
 then of sound mind and memory ; and that he was not present 
 at the signing by Bridges, the other witness. There was also a 
 certificate that one Philip Creamer, who was a devisee and the 
 executor named in the will, afterwards, in vacation, appeared 
 before the judge and stated upon oath, that the paper in ques- 
 tion was the last will and testament of the deceased. These 
 were all the facts appearing in the record. I conceive that the 
 court did right in rejecting the will, without regard to the ques- 
 tions whether the probate court had judicial or only ministerial 
 powers in the premises. The statute of wills has declared — sec. 
 2, what evidence is necessary to establish a will. Whether there 
 is or is not any contest in the county court about its execution, 
 
CH. SI. J CONCLUSIVENESS OF PEOBATE. 77 
 
 two witnesses must declare on oath or affirmation, before the 
 county court, that they were present, and saw the testator sign 
 the will, or acknowledged the will to be his act and deed, and 
 that they believed the testator to be of sound mind and mem- 
 ory at the time of such signing or acknowledgment This the 
 statute declares is sufficient to admit the will to record ; unless 
 proof of fraud, compulsion or other improper conduct is shown, 
 which in the opinion of the court shall be deemed sufficient to 
 invalidate or destroy the same. 3 This evidence must all be re- 
 duced to writing, and recorded along with the will and remain 
 in the clerk's office (sees. 2 and 18). Section 6 makes provis- 
 ions for proving wills in case a witness is dead or cannot be 
 found In such cases his handwriting must be proved. But be- 
 fore this would be admissible, the fact should be proved to the 
 satisfaction of the court that the witness was dead or could not 
 be found, which proof should also appear in the record, 
 or at least, that the court so found the fact to be. _ In 
 Ferguson v. Hunter, the testimony of Bridges, one of the sub- 
 scribing witnesses to the will, was not procured, nor was its 
 absence accounted for by showing his death or removal to parts 
 unknown, and proving his handwriting. There was therefore 
 no legitimate proof of the execution of the will made by any 
 but the witness Poster ; and this, by itself, was insufficient. 
 The quantum of evidence made absolutely necessary in every 
 case by the statute was not produced. The record should have 
 shown the existence of every fact made necessary by the stat- 
 ute, or the order admitting the will to probate was not sup- 
 ported. Suppose the record showed no proof of the execution 
 of the will, but disclosed facts showing jurisdiction of the sub- 
 ject matter together with an order admitting it to probate and 
 record, would it be contended that this was sufficient ? The 
 proofs of execution prescribed by the statute and required to 
 be preserved in the record, if not jurisdictional facts, it seems to 
 me are made by the statute precisely as essential, and to be of 
 equal dignity with them ; and the want of those proofs would 
 
 8 See Bigg v. "Wilton, 13 111. 15. 
 
78 APPEALS FKOM PROBATE. [CH. XII. 
 
 be as fatal to the order of probate in collateral proceedings as 
 would the want of jurisdiction of the subject matter. 4 
 
 But when all the jurisdictional facts are shown, and the will 
 has been proved as provided by the statute, but is assailed for 
 fraud, compulsion or other improper conduct, the order of the 
 county court admitting it to probate is conclusive in collateral 
 proceedings. It cannot be objected in such case, that the court 
 erred in sustaining the will as against the evidence of fraud 
 produced by the party opposing the probate. 
 
 CHAPTEE XII. 
 
 APPEALS FROM THE ORDER OP THE COUNTY COURT 
 ALLOWING OR REFUSING PROBATE. 
 
 § 173. Appeals allowed to any person interested in the will. 
 174 In case of refusal to allow probate. 
 
 175. The effect if appeal is not taken. 
 
 176. Trial is by jury in. cases of appeal. 
 
 § 173. Section 14, of the statute, title "Wills, authorizes ap- 
 peals to be taken from the order of the county court, allowing 
 or disallowing any will to probate, to the circuit court of the 
 same county, by any person interested in the will, 1 in the same 
 time and manner as appeals may be taken from justices of the 
 peace, except that the appeal bond and security may be ap- 
 proved by the clerk of the county court ; and the trials of such 
 appeals shall be de novo. 
 
 § 174. Section 13 provides that, when the probate of a will 
 
 4 See Farrell v. Patterson, 53 111, where it is held that if a will is not 
 properly authenticated it is not admissible for any purpose as evidence. 
 
 1 In the estate of Dennis McAvoy, 38 Leg. Int., Paxton, J. on appeal 
 held, that a widow of a testator, not being bound by the will of her hus- 
 band, has no right to contest the validity of such will, citing McMastcrs 
 v. Blai*, 5 Casey, 298. 
 
CH. XII.] APPEALS FROM PROBATE. 79 
 
 shall have been refused by the county court, and an appeal is 
 taken to the circuit court from the -order or decision of such 
 court refusing to admit such will to probate, the party seeking 
 the probate of the will may support the same, on hearing in 
 the circuit court, by any evidence competent to establish a will 
 in chancery ;' and in case the probate is allowed, the will shall 
 be admitted to probate, liable, however to be subsequently con- 
 tested, as provided in case of wills admitted to probate in the 
 first instance. 
 
 § 175. It will be observed that § 13 permits an appeal to 
 be taken from the order of the county court refusing the pro- 
 bate of a will, and, if, upon trial in the appellate court, the 
 order of the probate court is sustained and probate is re- 
 fused, there is no provision for any other mode of contesting 
 the matter by any one, and the final decision refusing the pro- 
 bate, is conclusive upon all parties. Not so, however, where 
 the will is admitted to probate by the appellate court, In this 
 case a bill may be filed in chancery, by any party interested, 
 within three years, to contest the validity of the will, as pro- 
 vided in § 7, in cases where the probate is allowed by the 
 county court, and no appeal is taken. 
 
 § 176. It is the practice to try appeals in these cases by 
 jury ; as in Walker v. Walker, 2 Scam. 291 ; Blaney v. Sargent, 
 1 Mass. 335 ; Hubbard v. Hubbard, 6 Mass. 397. And, as the 
 trial is de novo, the burden of proof is on the party affirming the 
 validity of the will, and he has the right to open and close the 
 case, as he is first to prove the execution of the will, and to ex- 
 amine the subscribing witnesses as to the sanity of the testator. 3 
 
 » See post, §§ 181-184. 
 
 8 Brooks v. Barrett, 17 Pick. 94. 
 
80 BILLS IN CHANCERY. [CH. XIII. 
 
 CHAPTBE XIII. 
 
 BILLS IN CHANCERY TO CONTEST THE VALIDITY OP 
 "WILLS. 
 
 § 177. Validity of wills may be contested by proceedings in chancery 
 within three years after probate — exceptions in favor of infants, 
 etc. — Trial to be by jury. — Evidence. 
 
 178. Forms in making up the issue for trial. 
 
 179. Burden of proof on the party affirming the validity. 
 
 180. Allegation of undue influence is equivalent to that of fraud. 
 181-184. Practice in these cases as stated in Bigg v. Wilton. 
 
 185. Praud and other improper influences in procuring the will. 
 
 186. Praud in these cases cannot be exactly defined. It is always a ques. 
 • tion of fact, not of presumption. 
 
 187. Fraud often mixed up with undue influence, and the two to be 
 
 treated of together hereafter. 
 188, 189. What influence over testator is permissible. 
 
 190. A will procured by fear is not valid. 
 
 191. Transaction to be carefully scrutinized where a beneficiary under 
 
 the will has a controlling agency in procuring its execution. 
 
 192. If provisions of the will are unreasonable, the effect stated. 
 
 193. Provisions in favor of one not a relative. — Effect of previous decla- 
 
 rations. 
 
 194. Adulterous relations between testatrix and devisee, not of itself suf- 
 
 ficient to invalidate the will. 
 
 195. The general principle stated. 
 
 196. Pacts which are in favor of the validity of the will. 
 
 197. A will made under undue influence is void and cannot by subse- 
 
 quent recognition be rendered valid. 
 
 198. The effect of the undue influence is to invalidate every part of the 
 
 will produced thereby. 
 
 199. Effect where provision is made in favor of one who in considera- 
 
 tion thereof agrees to perform any act. 
 199s. Expense by executor in defending will chargeable against the estate. 
 
 § 177. Section 7, by way of proviso, declares, that if any 
 
 person interested shall, within three years after the probate of 
 
 • a will or codicil in the county court, by his bill in chancery, 
 
 contest the validity of the same, an issue at law shall be made 
 
 up, whether the writing produced be the will of the testator or 
 
CH. III.] CONTEST IN CHANCEKY — ISSUE. 81 
 
 not ; which shall be tried by a jury in the circuit court of the 
 county wherein the will or codicil was proven and recorded, 
 according to the practice of courts of chancery in similar cases ; 
 but if no such suit shall be commenced within the time afore- 
 said, the probate shall be forever binding and conclusive on all 
 parties concerned, saving to infants, femes covert, persons ab- 
 sent from the state or non compos mentis, the like period after 
 the removal of their respective disabilities. And in all such 
 trials by jury, the certificate of the oath of the witnesses at the 
 time of the first probate, shall be admitted as evidence, and 
 have such weight as the jury shall think it may deserve. 
 
 § 178. The following may serve as forms in making up the 
 issue out of chancery : l 
 
 State of Illinois, Henry County — ss. 
 
 In the Circuit Court. — In Chancery. 
 
 And now, the court here having ordered an issue to the 
 country, the said complainant comes and says that the instru- 
 ment aforesaid, purporting to be the last will and testament of 
 said A. B., deceased, is not in fact the last will and testament 
 of him the said A. B., because he says that said A. B. ; at the 
 time of the execution and attestation thereof, was not of sound 
 mind and memory (or other cause), and this he is ready to 
 verify ;. wherefore he prays judgment that the said order of the 
 said county court admitting the said instrument to probate as 
 the last will and testament of said A. B., may be set aside and 
 annulled, and for his costs. By B. B., his attorney. 
 
 And the said defendant says that the said A. B., deceased, 
 at the time aforesaid, was of sound mind and memory, and 
 this he prays may be inquired of by the country. 
 
 By C. ¥., his attorney. 
 
 And the said complainant doth the like. 
 
 By B. B., his attorney. 
 
 1 Hubbard v. Hubbard, 6 Mass. 399; Brooks v. Barrett, 7 Pick. 98; See 
 Bigg v.Wilton, 13 111.15. 
 6 
 
82 testator's capacity. [ch. xiil 
 
 § 179. On the trial of the issue concerning the testator's 
 sanity in these cases the burden of proof is on the party affirm- 
 ing the execution of the will, and he lias the right to open and 
 close the argument He- i3 called upon to establish anew its 
 execution and validity.* Where the defendants put in evi- 
 dence, as the last clause of § 7 authorizes, the testimony of the 
 subscribing witnesses, given when the will was admitted to 
 probate, the court said, " This was prima facie evidence of its 
 validity. This testimony raised a presumption of the compe- 
 tency of the testator, which would be valid until disproved by 
 counter testimony ; and placed upon the contestants the burden 
 of showing incompetency of the testator, by proof sufficient to 
 overcome the prima facie case made by him. '" The proof of 
 insanity then devolves upon the contestant; sanity in such 
 cases is presumed. 4 
 
 § 180. The allegation of undue influence is tantamount to 
 that of fraud, and like it, the burden of proving that fact 
 rests upon the party alleging it. 6 
 
 § 181. The opinion of the supreme court in Higg v. Wilton, 
 13 111. 15, states the law in relation to this class of cases so 
 clearly and fully, and sustains its conclusions by such cogent 
 reasoning, that the considerable space we shall occupy with a 
 portion of it may be considered well employed. Treat, C. J., 
 said, " This was a feigned issue out of chancery, to determine 
 the question, whether a certain paper was the last will and tes- 
 tament of Clement Bigg. The plaintiffs alleged that it was not 
 his last will and testament ; the defendants affirmed that it was. 
 On the trial the defendants were allowed to open and conclude 
 the case ; and both of the subscribing witnesses to the will were 
 introduced, and testimony was offered tending to show that 
 Eigg was of unsound mind and memory at the time of the exe- 
 cution thereof." (This proceeding was had under the 6th sec- 
 ti©n of the Statute of Wills, 1845, which is the same as the 7th 
 
 8 Bigg v. "Wilton, 13 111. 15 ;Potter v. Potter, 41 111. 80. 
 s Ibid ; Holloway v. Galloway, 51 111. 159, 
 
 4 Myatt v. Walker, 44 111. 485. 
 
 5 Roe v. Taylor, 45 111. 485. 
 
CH. XIII.] CASE OF KIGG V. "WILTON. 83 
 
 section of the present statute.) " The issue is to be submitted 
 to the jury as a new and original question, and determined ex- 
 clusively upon the evidence introduced before them. The trial 
 is de novo, and without regard to the fact that the instrument 
 has been admitted to probate. The certificate of the oaths of 
 the witnesses at the time of the probate, may be offered in evi- 
 dence by either party ; but it is to receive such weight only as 
 the jury may think it deserves, in connection with the other 
 proof in the case. 
 
 § 182. " "We are satisfied that this rule of construction is 
 sound and reasonable, and well calculated to carry out the real 
 intention of the legislature. In practice it will best promote 
 the ends of justice, and protect the rights of parties. "Wills are 
 generally admitted to probate upon ex parte statements of the 
 attesting witnesses, when no opportunity is afforded the parties 
 interested to appear and insist on their rights. The object of 
 the statute in question is to give them the benefit of a full and 
 thorough investigation of all the circumstances attending the 
 execution of the will. And they are not to be embarrassed 
 or prejudiced by the previous proceedings before the probate 
 court. The party who relies on the will is called upon to prove 
 anew its execution and validity. And what he is required to 
 prove to sustain the instrument, the other party is permitted to 
 disprove in order to defeat it 
 
 § 183. " There are some indispensable requisites to the due 
 execution of a will. It must be signed by the testator, or by 
 some one in his presence and by his direction, and attested in 
 his presence, by two or more witnesses. A paper that has not 
 thus been subscribed and witnessed, has no force or effect as a 
 will under our statute. But as to all other questions affecting 
 its validity, such, for example, as the sanity or capacity of the 
 testator, no particular quantum of evidence is necessary on the 
 trial under the statute. The jury are to hear the proofs sub- 
 mitted by the parties, and decide the issue as they would any 
 other question of fact, according to the weight of evidence. 
 
 § 184. " Nor is it essential that the proof should be made by 
 particular witnesses. The subscribing witnesses need not con- 
 
84 CASE OF EIGG Y. WILTON. [CH. XIII. 
 
 cur in testifying to the sound mind and memory of the testa- 
 tor ; and the will may even be established against their testi- 
 mony. The party sustaining the will is not bound to call 
 them, although a failure to do so, unexplained, might be re- 
 garded as a suspicious circumstance. It is enough that the 
 jury are convinced, from any legitimate testimony, of the san- 
 ity and capacity of the testator. It would indeed be a harsh 
 rule to hold, that after a lapse of many years, a will could only 
 be established by the concurring testimony of two of the sub- 
 scribing witnesses. They may be in the interest of the assail- 
 ants of the will, or beyond the reach of those seeking to sus- 
 tain it It may be true, that in the admission of a will to pro- 
 bate in the first instance, two of the attesting witnesses must 
 declare the circumstances under which it was executed, and 
 their belief that the testator was of sound mind, and memory. 
 But the reasons for such a requisition are to be found in the 
 fact, that the will may be presented by the executor, and ad- 
 mitted to record upon the ex parte testimony of the witnesses, 
 without notice to the parties interested, and without an oppor- 
 tunity on their part to appear and resist the application. But 
 these reasons do not exist in the case of the trial of an issue out 
 of chancery. In such case the parties are brought before the 
 court for the express purpose of having all questions respect- 
 ing the validity of the will forever put at rest. It was clearly 
 the design of the legislature that an issue under the statute 
 should be determined, like every other issue out of chancery, 
 upon the weight and preponderance of the testimony adduced 
 by the parties. This may be gathered from the expression in 
 the statute that the issue shall be tried by a jury, ' according to 
 the practice of courts of chancery in similar cases.' And it is 
 further evidenced by the act of the 25th of February, 1845 " 
 (now § 13, title Wills), "which declares, that when probate of a 
 will shall be refused, and an appeal shall be prosecuted, the 
 party seeking probate may support the will, by any evidence 
 that would be competent on the trial of an issue out of 
 chancery for contesting the validity thereof." 
 
 § 185. We next proceed to the consideration of specific 
 
CH. XIII.] CONTEST OF WILLS. 85 
 
 charges of fraud and other improper conduct and influences in 
 procuring the execution of the will. 
 
 § 186. Fraud in respect to the execution of wills, like 
 fraud in other transactions, cannot well be exactly defined. 
 Fraud in procuring the execution of wills is always a question 
 of fact, and never a presumption of law. The testator cannot 
 voluntarily and knowingly participate in it Its very essence 
 consists in his being imposed upon by the acts of some other 
 person concerning the will, and substituting the will of another 
 in the place of his own ; as, by intentionally misstating its con- 
 tents to a testator who could not or did not read it ; or by 
 omitting to read some important provision; or pretending to 
 read provisions as being in it which are not there, leaving him 
 to believe, when it was signed and witnessed, that it was writ- 
 ten as it was read, or as its 'contents were stated to him ; or, by 
 wrongfully substituting one paper for another, and having him 
 sign the substituted paper for his will, under the belief it was 
 the one he intended to sign." These and the like are cases of 
 simple fraud, and courts unhesitatingly set aside wills so pro- 
 cured. They call for no further consideration here. 
 
 § 187. But there are cases where fraud is so shrewdly mixed 
 up with what is denominated undue influence, or as the statute 
 terms it, " other improper conduct," — expressions even more 
 undefinable than fraud, that it is impossible to treat of one of 
 them entirely separate from the other. These constitute a large 
 proportion of contested will cases, and will hereafter be treated 
 of together. 
 
 § 188. "We may now properly examine the cases, and see 
 what influence over the testator is permissible. In Small v. 
 Small, 4 Greenl. 220, the court says : "If a wife by her virtues 
 has gained such an ascendancy over her husband, so riveted his 
 affections, that her good pleasure is a law to him, such an in- 
 fluence can never be a reason for impeaching a will made in 
 her favor, even to the exclusion of the residue of his family. 
 Nor would it be safe to set aside a will on the ground of influ- 
 
 6 See Small v. Allen, 8 T. R. 147. 
 
86 FRAUD, ETC. [CH. XIII. 
 
 ence, importunity or undue advantage taken of the testator by 
 his wife, though it should he proved she possessed a powerful 
 influence over his mind and conduct in the general concerns of 
 life, unless there should be proof that such influence was 
 especially exerted, to procure a will of such a kind, as to be 
 peculiarly acceptable to her, and a disappointment of others." 
 The supreme court of Illinois in a recent case,' where it was 
 charged that the will was made at the instance of the principal 
 devisee, said : " If it was so made, the will would be no less 
 entitled to record in the absence of all proof of fraud, compul- 
 sion or improper conduct, or of improper means used by him to 
 induce the testatrix to act at his instance and according to his 
 wishes. There must be no fraud or contrivance employed to 
 induce a party to make a will in a particular way. If all is 
 fair and the result of honest argument and persuasion, or of 
 such influence as one may properly obtain over another, the 
 will must stand, on the principle that a person can dispose of 
 his property by will as he may choose, if he be of sound mind 
 and memory." 8 
 
 § 189. It is said that no degree of influence over another, 
 which is general, and operating at all times, and upon all sub- 
 jects, and which is not specifically exerted to procure the testa- 
 ment in question, will be sufficient to avoid it.' On the other 
 hand, neither advice, nor argument, nor persuasion, would 
 vitiate a will made freely, and from conviction, though such 
 a will might not have been made, but for such advice and per- 
 suasion. 10 And it is not every degree of importunity that is 
 sufficient to invalidate a will. But there may be great and 
 overruling importunity and undue influence, without fraud, 
 which, when established, may and ought to have the effect to 
 avoid a will, such as the immoderate persevering, and begging 
 importunities and flattery of a wife, who will take no denial, 
 pressed upon an old and feeble man, which may be better im- 
 
 ' Dickie v. Carter, 42 111. 376. 
 
 'Elliott's "Will, 2 J. J. Marsh. 340; Miller v. Miller, 3 8. & R. 267. 
 9 Small v. Small, 4 Greenl. 220. 
 10 Chandler v. Ferris, 1 Harring. 454, 464. 
 
CH. XIII.] CONTEST OF WILLS. 87 
 
 agined than described ; or dominion obtained over the testator 
 under the influence of fear, produced by threats, violence or 
 ill-treatment. In neither of these instances may there be any 
 direct fraud ; but an overruling influence upon the mind and 
 feelings of a testator, according to the degree of his judgment 
 and firmness. 11 The influence which shall deprive one of 
 the testamentary power,. must be of a nature to, and go to the 
 extent of, destroying free agency ;" 12 and it must operate at the 
 time the will is made, and produce that perversion of mind 
 which made the will. 18 • 
 
 § 190. When a will is induced by fear, it is not valid, not 
 only in respect to the person who put the testator in fear, but 
 with respect to other persons, though ignorant of the fear which 
 constrained the testator to make the objectionable provisions in 
 their favor. And though the fear, or threat, be not of present 
 execution, ib nevertheless avoids the testamentary act, done 
 while it operates upon the mind of the testator. 14 But it is now 
 said that if the will was made while under the influence of 
 fear or compulsion, the testator may so ratify and confirm it, 
 after all apprehension is removed, as to render it valid 16 
 
 § 191. When the party to be benefited by the will, has a 
 controlling agency in procuring its formal execution, this fact 
 is universally regarded as *a suspicious •circumstance, requiring 
 the fullest explanation. Thus, where a will was written by an 
 attorney, who was to be benefited by its provisions, it was 
 considered that this circumstance should excite stricter scru- 
 tiny, and required clearer proof of capacity, and the free exercise 
 of voluntary choice. 1 ' 
 
 § 192. So, where the will is unreasonable in its provisions, 
 and inconsistent with the duties of the testator, with reference 
 to his property and family, this of itself, will impose upon 
 
 11 Buchanan, C. J., in Calvert v. Davis, 5 Gill & J. 301. 
 
 12 O'Neall v. Farr, 1 Eich. 80; Eoe v. Taylor, 45 111. 485. 
 
 13 Jencks v. Court of Probate, 2 R. I. 255; McMahon v. Ryan, 20 Penn. 
 St. 329. 
 
 14 Swinb. part 7, § ii. See post, §§ 196, 197. 
 
 15 1 Redf. "Wills, § 38, pi. 10. See post, §§ 196, 197. 
 16 Duffleld v. Robeson, 2 Harring. 384. 
 
88 # UNDUE INFLUENCE. [CH. XIII. 
 
 those claiming under the instrument, the necessity of giving 
 some reasonable showing that its character is not the offspring 
 of mental defect, obliquity or perversion. As where it appeared, 
 that the testator's mind was so far impaired by disease, as to 
 render him an easy dupe to the acts and intrigues of those by 
 whom he was surrounded, and that, while in a bedridden and 
 paralytic state, the will was procured by taking advantage 
 of his condition, by which he made a different disposition of 
 his property from that which he otherwise would have done, 
 it was held, on appeal from the decision of the surrogate, that 
 it could not be admitted to probate." 
 
 § 193. Although the fact that a testator makes a will in 
 favor of one not a relation, may be suspicious, nevertheless, 
 affirmative proof of undue influence will be required to invali- 
 date it. 18 And it is obvious, that in cases of alleged undue 
 influence, it must have a very controlling effect upon the 
 validity of the will, whether the testator's previous declara- 
 tions of affection and intention confirmed the will or not 19 
 Accordingly evidence of the testator's previous declarations, 
 made at different times, that he intended to make provisions 
 similar to those in his testament, will be admitted to rebut the 
 idea of undue influence. 2 " 
 
 § 194. In the case of Dickie v. Garter, 42 111. 376, where it 
 was alleged that an adulterous relation existed up to the time 
 of the execution of the will, between the testatrix and the 
 party in whose favor the will was made, the court held, that 
 however immoral such a relation may be, it is not sufficient to 
 invalidate a will made in favor of the wrong-doer, if no im- 
 proper influences were exerted to induce the will." 
 
 § 195. The principle deducible from all the cases seems to 
 be, that the undue influence, of whatever character, which in- 
 validates a will, must be exerted in bad faith, for the purpose, 
 
 » Clark v. Fisher, 1 Paige, 171, and see 1 Redf. Wills, § 38, pi. 47. 
 
 18 Jenckes v. Court of Probate, 2 R. I. 255. 
 
 19 Allen t. Pub. Admr. 1 Bradf. Sur. 378. 
 
 20 Neel v. Potter, 40 Penn. St. 483. Ante. §§ 116-118. 
 S1 1 Redf. Wills, § 38, pi. 45, 46. 
 
CH. XIII.] CONTEST OF WILLS. 89 
 
 and must go to the extent of, depriving the testator of his free 
 will in reference to the disposition of his property made by the 
 will. Whether imposed upon by false representations, made 
 by the beneficiary, of ill will or misconduct towards the tes- 
 tator on the part of those who would, but for such representa- 
 tions, have received his bounty or shared his estate; or by 
 fears of violence, or by threats of displeasure, they must have 
 been made or. caused for the purpose of operating upon and 
 prejudicing his mind, and must have so operated at the time of 
 making the testament, producing such a disposition in favor of 
 the person exerting or causing the influences to be exerted, as 
 would otherwise not have been made. 22 • 
 
 § 196. But it must always have great weight in favor of a 
 will, if the testator was relieved from the alleged mental in- 
 firmity, or undue influence, for which it was attempted to be 
 set aside, for a considerable length of time after its execution, 
 and the will itself was during that time within his easy control, 
 and its contents well known to him, without his attempting 
 to make any alteration in, or to revoke the same. And if these 
 things concurred with occasional conversations concerning the 
 provisions of the will, it wbuld seem to have overwhelming 
 weight in favor of sustaining it. For the effect of such evi- 
 dence would be to show 1st, that there was in fact no undue 
 influence exerted over the testator, 23 and 2nd, if there was, a 
 subsequent ratification or confirmation by him, if the latter 
 idea is admissible. 
 
 § 197. It was held in the case of Taylor v. JTelley," that a 
 will made under undue influence, is so absolutely void, that it 
 cannot be rendered valid by any subsequent recognition, unless 
 in writing, and so executed as to amount to a republication or 
 re-execution. And this we take to be the just view of the 
 question ; for it can hardly be said to be consonant with the 
 spirit of the law that a party who is shown to have obtained a 
 will by wrongful or undue influence, should have the benefit 
 
 « See Blakey v. Blakey, 33 Ala. 611 ; Taylor v. Kelley, 31 Ala. 59. 
 
 ss Ibid. 
 
 84 31 Ala. 59. And see ante, § 10. 
 
90 EFFECT OF UNDUE INFLUENCE, ETC. [CH. XIII. 
 
 of doubtful acts afterwards in his favor to give him the prop- 
 erty he had sought to obtain by unlawful means. 
 
 § 198. The effect of procuring a will by undue influence 
 is this ; — if the influence extends to the whole will, the whole 
 will be declared void," but if it extends only to the provisions 
 in favor of the party exerting that influence, or, in whose be- 
 half he exerted that influence, those provisions are void, and 
 the others valid. 26 
 
 § 199. In every case, where one induces the testator, to 
 omit a provision in his will on behalf of another, by assurances 
 that he, being the heir, or personal representative, or resid- 
 uary Jegatee, will see such person paid the legacy or other 
 provision contemplated, it is treated as an estoppel, upon the 
 party, or a virtual fraud, to refuse performance, whereby a le- 
 gal duty is imposed, and it will be inforced in a court of 
 equity. Thus, where the trustee of a fund, to which he would 
 succeed in case of intestacy, prevented the making of a will in 
 favor of a third party by promising to hold the fund for the 
 intended legatee, the latter may recover its value as money 
 had and recived to his use. And where the trustee under a 
 will induced the children of the testator to assent to the sale of 
 certain property belonging to the estate, by a promise to leave 
 them as much as they could get under their father's will, the 
 trustee being also a partner with the purchasers, it was held to 
 be a valid contract, upon sufficient consideration, and not 
 within the statute of frauds, and enforceable in a court of 
 equity against the estate of the trustee after his decease. 27 
 
 § 199 a. A decedent's estate is chargeable with the reason- 
 able expense of the executor in an unsuccessful effort made by 
 him in good faith to resist a contest of the will. 28 
 
 55 Florney v. Morney,24 Ala. 241. 
 
 26 Lord Trimlestown v. D'Alton, 1 Dow & CI. 85 ; Bridgman v. Green, 2 
 Vesey sen. 627 ; Huguenin v. Basley, 14 Ves. 273, 282. 
 s ' 1 Bedf. Wills, § 38, pi. 6 and notes. 
 S8 Bratney v. Curry, 33 Ind. 399. 
 
CH. XIV.] FEAUD. 91 
 
 CHAPTBE XIV. 
 
 EXTRINSIC EVIDENCE TO ESTABLISH FRAUD AND UNDUE 
 INFLUENCE. 
 
 § 200. Statutory provision. 
 201. Fraud and the like may be established by parol evidence, and by 
 a preponderance of testimony — What facts may tend to show it. 
 202-204. Examples of the wide range of allowable testimony. 
 
 § 200. By the statute, section 2, fraud, compulsion or other 
 improper conduct may be shown, to prevent the admission of a 
 will to probate. So these or any other pertinent facts may be 
 shown, where a bill is filed in chancery, under section 7, to, 
 contest the validity of a will upon an issue whether the writing 
 produced be the will of the testator or not. 
 
 § 201. Fraud and undue influence and the like may be es- 
 tablished by parol evidence, and by a preponderance of testi- 
 mony. 1 This evidence may consist of a great variety of circum- 
 stances, such as the age, health, mental vigor, and soundness of 
 the testator, his domestic surroundings with respect to persons, 
 the state of his property, the character and degree of influence 
 employed, etc. But it is obvious that each case must depend 
 very much upon its own circumstances. 
 
 § 202. As examples of the wide range of testimony in sup- 
 port of and in reply to the charges of undue influence and 
 weakness of mind, as the moving and proximate causes of the 
 will, a few cases may be referred to. Thus, another will exe- 
 cuted eight years before, making a different disposition of the 
 testator's property, has been received, as tending to support the 
 claim of undue influence. 2 And on the other hand, evidence 
 of harshness, abuse and menace, on the part of the beneficiary, 
 and timidity on the part of the testator, will induce the court 
 
 1 Rigg v.Wilton, 13 111. 15. 
 
 2 Hughes v. Hughes, 31 Ala. 519. 
 
92 EVIDENCE ADMISSIBLE. [CH. XIV. 
 
 not to disttfrb a verdict against the will. 3 And evidence tend- 
 ing to show the previous purposes of the testator, in regard to 
 the disposition of his property, is receivable, upon the question 
 of the capacity to comprehend the will, and bow far it was the 
 result of free will. 4 It is always competent, upon a question 
 of testamentary capacity, to show the provisions of the will are 
 reasonable, and correspond to the repeated prior declarations of 
 the testator in regard to his intentions. 6 And the contrary may 
 be shown to discredit the will. Unpublished wills are also 
 admissible upon this question. 7 But in many well-considered 
 cases, declarations of the testator, tending to show his wishes, 
 in regard to the disposition of his property, made for periods 
 more or less remote from the time of the execution of the will, 
 have been rejected. 8 
 
 § 203. In a case in Vermont,' very remote circumstances 
 •tending to show the improbability of the testatrix having acted 
 understandingly, and free from extraneous influence, in making 
 her will was allowed to be introduced ; as that she had brothers 
 and sisters in necessitous circumstances, for whom she cherished 
 feelings of affection, but for whom she made no provision in 
 her will, the principal legatee being her brother, and of intem- 
 perate habits. And it was also allowed to be proved, that, for 
 four years before the execution of the will, during a good portion 
 of every year, she appeared strange and unnatural in her con- 
 duct, habits and conversation, and different from what she was 
 before that period. 
 
 § 204. And in a late case in Michigan, 10 a very wide range 
 of inquiry was indulged by the court. It was there held, that 
 
 8 McDaniel v. Crosby, 19 Ark. 533. 
 
 4 Means v. Means, 5 Strobh. 167 ; Neel v. Potter, 40 Penn. St. 483. 
 
 "Pancoast v. Graham, 15 N. J. Ch. 294. 
 
 6 Boylan v. Meeker, id. 310. 
 
 ' Love v. Johnson, 12 Ired. 355. 
 
 8 Landis v. Landis, 1 Grant's Cas. 249, where the declarations were 
 made more than two years before the execution of the will. 1 Bedf. Wills, 
 § 39, and cases cited, and see Allen v. Pub. Admr. 1 Bradf. Sur. 378. 
 
 9 Fairchild v. Bascomb, 35 Vt. 398. 
 
 10 Beaubien v. Cicotte, 12 Mich. 459. 
 
CH. XV.] FOREIGN WILLS. 93 
 
 a will, being assailed for fraud and undue influence on the part 
 of the wife, statements of the testator that he regretted his 
 marriage, that he was not master at home, that he was afraid of 
 his wife, and was compelled to submit to her demands, or other- 
 wise there would be trouble in the house, are admissible evi- 
 dence. The will having disinherited the testator's relatives in 
 favor of his wife and her relatives, it was held competent to 
 prove the wife's abuse of the husband's relatives, and her 
 quarrel with him about a former will by which he had made 
 provisions for them. A wide range of inquiry into the family 
 relations and the terms upon which they lived is allowable in 
 these cases. Evidence that the testator made no complaint of 
 any importunities on the part of his relatives is also admissible 
 in such case, where it appeared that the wife had made charges 
 to him of their rapacity. Evidence of former wills and of 
 other pecuniary arrangements for the wife is also admissible, as 
 having a bearing upon the question whether the testator has 
 understandingly and of his own free will changed his settled 
 views. • 
 
 CHAPTEE XV. 
 
 EFFECT OF WILLS RECORDED HERE, AND OF FOREIGN 
 WILLS PROVED ABROAD AND RECORDED HERE. 
 
 § 205. Effect of wills proved here. Statutory provision. 
 20&-208. Foreign wills — provision for recording here, and the effect. 
 
 § 205. The statute, title "Wills, § '2, declares that wills 
 proved and recorded as required by that section, shall be good 
 and available in law for the granting, conveying and assuring 
 the lands, tenements and hereditaments, annuities, rents, goods 
 and chattels therein and thereby devised, granted and be- 
 queathed. 
 
94 AUTHENTICATION. [CH. XV. 
 
 If a will is not properly authenticated it is not admissible 
 for any purpose as evidence. 1 
 
 § 206. The statute, title "Wills, § 10, provides that, all origi- 
 nal wills, or copies thereof, certified according to law, or exem- 
 plifications from the records in pursuance of the law of con- 
 gress in relation to records in foreign states, may be re- 
 corded as aforesaid, and shall be good and available in law, 
 the same as wills proved in such county court. 
 
 § 207. Section 9 provides that, all wills and codicils, or au- 
 thenticated copies thereof, proven according to the laws of any 
 of the United States, or the territories thereof, or of any country 
 out of the limits of the United States, and touching or con- 
 cerning estates within this state, accompanied with a certificate 
 of the proper officer or officers, that said will or codicil or copy 
 thereof was duly executed and proved agreeably to the laws 
 and usages of the state or country in which the same was exe- 
 cuted, shall be recorded as aforesaid, and shall be good and 
 available in law, in like manner as wills made and executed in 
 this state. 
 
 § 208. Under the last section, (which is numbered eight in 
 the Eev. Stat. 1845,) a copy of a will, executed and proved in 
 the state of New York, to which were attached a copy of the 
 testimony of the subscribing witnesses and the order admitting 
 it to record, and a certificate of the clerk of the surrogate's 
 court setting forth that the will " was duly proved and admit- 
 ted to probate and record by Charles McVean, surrogate of the 
 county of New York, * * according to the laws of the 
 state of New York," it was held in Shepard v. Carriel, 19 HI. 
 313, that the certificate of probate in New York was conforma- 
 ble to our statute, and that it sufficiently appeared from it that 
 the will was duly executed and proved agreeably to the laws 
 and usages of that state. And in Gardner v. Ladue, 47 111. 
 211, a copy of a will executed and proved in the state of New 
 York and certified in conformity to our statute, though it had 
 been proved by only one subscribing witness, was held suffi- 
 
 1 Farrell v. Patterson, 43 111. 53. 
 
CH. XVI.] FORMS OF WILLS. 95 
 
 cient; the court saying " only one subscribing witness was nec- 
 essary under the statute of New York then (1826) in force." 
 In these cases the wills were offered in evidence to prove title 
 to lands ; and in the former case it was objected that the 
 will was not recorded in the county court previous to the 
 commencement of the suit; to which the court said, " It was 
 wholly immaterial when the papers were filed in the probate 
 court of our state." And the court further says : " The right 
 of the party claiming under the will arises out of the will, and 
 by the will, and where the will is probated, the proof, at the 
 same time, is created of this right, which vested at the death of 
 the testator, the probate not conferring the right, but being 
 merely evidence of the right." In the case of Newman v. Wil- 
 letts, 52 111. 99,»it was held in reference to a will executed and 
 proved in Louisiana, and the probate properly certified, that it 
 was not necessary in order to make it evidence to probate it in 
 Illinois, nor that it should be recorded in the county where the 
 land lies. 
 
 CHAPTEE XVI. 
 
 FOKMS OF WILLS. 
 
 209. Comjnents on the necessity of care, skill and experience in draft- 
 
 ing of wills. 
 
 210. Form No. 1 with notes and comments on its provisions, and on 
 
 the law of dower; homestead — the heirship of wife, her right 
 to renounce — her award — sale of land by executor — lapsing 
 of legacies — where the word heirs necessary to prevent lapse — 
 who maybe executors — seal, when necessary — attestation clause 
 — witnesses, etc. 
 
 211. Form No. 2. Comments on the effect of mortgages on devised 
 
 premises. 
 
 212. Form No. 3. Comments on the appointment of guardians — trust- 
 
 ees. 
 
 213. Form No. 4. Codicil. 
 
 214. Form No. 5. Nuncupative will and directions. 
 
96 PREPABATION OF WILLS. [CH. XVI. 
 
 § 209. It is to be regretted that there is a tendency in the 
 minds of inexperienced persons to underrate the importance of 
 care and accuracy in preparing wills. A neighboring justice of 
 the peace or other person, wholly unlearned in the intricacies 
 of the law in relation - to wills and the settlement of estates, is 
 often called upon and urged to perform this act — one requiring 
 great knowledge of law, a sound judgment concerning the du- 
 ties of men towards their families, and much knowledge of the 
 value of property. And such a person often prepares a will in 
 haste and without adequate knowledge of the testator's property 
 and debts, and with an imperfect knowledge of his family and 
 the objects of his bounty, and with little thought of the many 
 contingencies liable to arise, both to property and donees. Now, 
 can it be a wonder if in such circumstances mistakes creep into 
 the description of property ; if insufficient means are provided 
 for the objects proposed, or contingencies have not been fore- 
 seen and guarded against ? Can it create wonder if sometimes 
 wills, because of ill considered provisions, involve children and 
 friends of the testator in expensive litigation, producing 
 family quarrels, and making his well meant efforts a curse to 
 the objects of his bounty? The accumulations of a lifetime, 
 which taxed all of the testator's mental and physical energies to 
 acquire, are sometimes disposed of when he is too feeble to do 
 any business or to feel any interest in- it. Beyond a few lead- 
 ing provisions in his will he thinks of no more. Then is the 
 time, if ever, when the testator needs the advice and aid of a 
 sound lawyer, and a wise and judicious man, to state clearly 
 the effect of every desired provision, suggest contingencies 
 which may not have occurred to his mind, and in various ways 
 to anticipate, and lay before him, the probable and possible re- 
 sults of what he is doing. Besides, a judicious adviser may be 
 able to point out means of saving trouble to the executor, and 
 needless expense in the settlement of the estate. For example, 
 where a testator deals largely in lands, as many do in the west- 
 ern states, his estate might be saved the expense of tedious pro- 
 ceedings in chancery, if his will contained a power authorizing 
 the executor to convey to the purchaser such lands as the testa- 
 
CH. XVI.] FORM OF WILL, NO. 1. 97 
 
 tor might at the time of his death be liable under any contract 
 to convey, upon the receipt of the purchase money. The fol- 
 lowing forms it is to be hoped will aid those who may be called 
 upon to prepare wills in those cases which will be most likely 
 to occur ; but it is not pretended that they will enable one to 
 dispense with legal knowledge, and the exercise of a discrimi- 
 nating judgment 
 
 Form No. 1. 
 
 § 210. 
 
 I, A B , of , in the County of , in the 
 
 State of Illinois, do make and declare this to be my last will 
 and testament 
 
 First. I direct that my funeral expenses and all my just 
 debts be fully paid. 
 
 Second. I give and devise unto my beloved wife, F 
 
 B , the following described tract of land situated in said 
 
 county ; to-wit, the south west quarter of section ten, in town- 
 ship fourteen north, range five east of the fourth principal me- 
 ridian, during her life, without impeachment of waste; and. I 
 give and bequeath unto my said wife all of my personal estate 
 of every description whatsoever, except as herein otherwise 
 provided. 1 
 
 1 In the disposition of property to the wife by devise or bequest it must 
 be borne in mind that she has a right to renounce the provisions of the 
 will and take such interests in the estate as would be given to her by the 
 statute if the estate were intestate. Hence in general the testator should 
 so well provide for her as to make it for her interest to accept the pro- 
 visions of the will. This right of election which the widow has, is in- 
 tended to protect her against both intentional and accidental deprivation 
 of her just rights, by means of the testamentary provisions. But it is not 
 intended to give her a right to defeat a particular disposition of the will, 
 where that would be for her benefit, and yet claim some other disposition, 
 thereof which would favor her. She must take wholly under the will, or 
 wholly under the statute. 
 
 The statute, title Dower, § 10, provides, that every devise of land, or any 
 estate therein, by will, shall bar her (the wife's) dower in lands, or of her 
 sh are in the personal estate, unless otherwise expressed in the will ; but she 
 may elect whether she will renounce the benefit of such devise or bequest, 
 and take her dower in the lands and her share in the personal estate of 
 her husband. 
 7 
 
98 FORM OF, WILL. [CH. XTI. 
 
 Third. I hereby direct, that sufficient of my personal prop- 
 Under this section it was held in the cases of Jennings v. Smith, 29 111. 
 116, and Brown v. Pitney, 39 111. 468, that a bequest of personal property- 
 does not, of itself, like a devise of land, bar dower. The will containing 
 nothing to show the intent, the widow may take both the personalty be- 
 queathed and her dower. But if the will shows either by express terms, or 
 by necessary implication from its other provisions, that the personalty is 
 intended to be in lieu of dower, then the widow must elect between the 
 bequest and dower. 
 
 In the case of Deltzer v. Scheuster, 38 111. 301, it was held that sec. 10 of 
 the statute concerning dower must be construed to apply to other personal 
 estate than her award given to her under the 48th (now 74th) section of the 
 statute in relation to administration, and referred to sec. 50, (now 76,) in 
 support of that opinion. 
 
 Section 15 of the same statute provides, that if a husband dies, leaving 
 a widow, but no children or descendants of children, his widow may if 
 she elects, have in lieu of her dower in the estate of which her husband 
 died seized, whether the same shall have been assigned or not, absolutely 
 and in her own right, as if she were sole, one-half of all real estate which 
 shall remain after the payment of all just debts and claims against her de- 
 ceased husband. Provided, that in case dower in such estate shall have 
 been already assigned, she shall make such new election within two 
 months after being notified of the payment of such debts and claims. 
 This section applies to the widows of both testates and intestates. Sturgis 
 v. Ewing, 18 111. 176 ; Lessley v. Lessley, 44 111. 527. It was intended to 
 give a widow the right to elect between two different estates in realty, with- 
 out disturbing her interest in personalty. If therefore such a widow 
 elects to take under this section, she takes one-half of the real estate re- 
 maining after the payment of debts and claims, in lieu, not of dower in 
 the real estate and her share in the personalty, but of her dower alone. 
 "White v. Dance, 53 111. 413. The widow is entitled under this section to 
 one-half of the real estate remaining after the payment of the debts, and 
 to'her award and her share in the personalty, but not to dower in the re- 
 maining real estate ; and she must claim alone under the will or altogether 
 independent of its provisions. Therefore, when she renounces under the 
 will, She is restored to her rights under the statute. Lessley v. Lessley, 
 supra; Boyles v. McMurphy, 55 111. 236. McMurphy v, Boyles, 49 111. 110. 
 If a testator without lineal descendants, bequeaths to his widow a sum 
 of money, and expressly provides in his will that such bequest shall not 
 be in lieu of dower, but shall be in lieu of any claim which the widow 
 may make to one-half of his real estate in fee, after the payment of debts, 
 the widow, in such a case, could take both her dower proper and the be- 
 quest, but she could not exercise the power of substitution under the fif- 
 teenth section, and take in lieu of dower the one-half in fee and also take 
 the bequest. Brown v. Fitney, 39 111. 468. 
 
CH. XVI.] FORM OF WILL. 99 
 
 erty be sold at public or private sale, as my executor may 
 
 A person may make a bequest of personalty to his widow, and provide 
 that she must accept it in lieu both of her dower in his lands and. of her 
 right to take one-half in fee under the fifteenth section ; or he may pro- 
 vide that she may still have her dower proper, but not have one-half in 
 fee, and while in neither case would she be barred of her right either to 
 her dower proper or to the one-half in fee, as she might prefer, yet in the 
 first case, if she insists upon either dower or fee, she must forego the be- 
 quest, and, in the latter case, if she insists on the one-half in fee she must 
 forego the bequest. But, where it is said the widow will be compelled, in 
 these contingencies, to forego the legacy, it is not to be understood that 
 she must wholly forfeit it, but only surrender so much of it as shall be a 
 compensation to other beneficiaries of the will who are disappointed of 
 the testator's bounty through the assertion by the widow of her legal and 
 independent rights. Ibid. 
 
 The legal meaning of the word dower is, an interest in land alone, and 
 is so used in the statute concerning dower. Boyles v. McMurphy, supra. 
 Where the will makes no devise, or bequest to the wife of the testator, 
 but gives the entire property of the testator to his children, his estate, as 
 to his wife, will be regarded intestate to the extent of her legal claims — 
 her award and her distributive share after payment of the debts. In re 
 Ta3'lor's Will, 55 111. 252. 
 
 Section 76 of the statute, Tit. Administration, declares that the right of 
 the widow to her award shall in no case be affected by her renouncing or 
 failing to renounce the benefit of the provisions made for her in the will 
 of her husband, or otherwise. If, therefore, the testator desires that his 
 widow shall waive her right to her award, and accept only the provisions 
 or some provision of the will, a clause may be added, as follows: 
 
 But the foregoing provisions in respect to personal estate, (or otherwise,) 
 in favor of my said wife, are to be accepted by her only upon this express 
 condition, that she waives her right within one year after probate of this 
 will to the award allowed her by law as my widow ; otherwise said pro- 
 visions are to be void. 
 
 If it is desired that the widow take personal estate instead of dower, 
 (see Jennings v. Smith and Brown v. Pitney, supra,) a clause may be added 
 as follows : 
 
 But the foregoing provisions in respect to personal estate, in favor of 
 my said wife, are to be accepted by her instead of dower in my lands 
 
 but if not so accepted, within months after probate of this will, they 
 
 are to he void. 
 
 The statute in relation to Homestead Exemptions, § 1, as amended in 
 1873, provides that, " every householder having a family shall be entitled 
 to an estate of homestead, to the extent in value of one thousand dollars 
 in the farm or lot of land and buildings thereon, owned or rightfully pos- 
 sessed by lease or otherwise, and occupied by him or her as a residence ; 
 
100 FOEM OF WILL. [CH. XVI. 
 
 deem best, to, pay the expenses of administration and said 
 funeral expenses and debts, and the legacy hereinafter specified, 
 
 to H— ^ B . 2 
 
 Fourth. I give and bequeath unto my beloved sister, H- 
 
 B , of the city of , the sum of one thousand dollars, to 
 
 be paid within one year after my decease ; but in case she shall 
 not survive me, 8 1 give the said sum to her descendants, to be 
 distributed in equal parts; the descendants of any deceased 
 child or grandchild to take the share of their parent in equal 
 parts among them. 
 
 and such homestead and all right and title therein, shall he exempt from 
 attachment, judgment, levy on execution, sale for the payment of his debts, 
 or other purposes, and from the laws of conveyance, descent and devise, 
 except as hereinafter provided." 
 
 By § 2, the homestead continues after the death of the householder, for 
 the benefit of the surviving husband or wife, so long as he or she con- 
 tinues to occupy the same, and of the children until the youngest becomes 
 twenty-one years of age. 
 
 By § 4, such homestead right may be lost by abandonment by the house- 
 holder ; but if the exemption is contiuued to a child or children, it cannot 
 be released or waived without the order of the court directing a release 
 thereof. 
 
 We have seen that the homestead is exempt as against the laws of de- 
 vise, therefore if the testator or testatrix desires to devise real estate sub- 
 ject to the homestead exemption, to any person except the one who would 
 have a right to it as a homestead, it would be proper to require that a 
 devise or bequest to the person who would be entitled to the homestead, 
 shall be taken only on condition of releasing the homestead right within 
 some definite time. 
 
 2 If the testator directs that his estate shall not be sold, it shall be pre- 
 served in kind, and be distributed as directed by the will, unless a sale is 
 absolutely necessary, to pay debts and charges against the estate. Stat. 
 Tit. Admin. § 92. And if the sale is not neccessary for these purposes, or 
 for the proper distribution of the effects of the estate, the court may order 
 that the property may be preserved and distributed in kind. lb. § 93. 
 
 3 It will be observed that the legacy to H. B. would lapse, and the leg- 
 acy go into the residuary estate, if the testator survived her, unless pro- 
 vision were made that it should go to some other person. So if the leg- 
 acy run to her and her " heirs," it would not in general go to her children 
 or heirs, but would lapse. 2 Bedf. Wills, § 8, pi. 1, 2. If the word " issue " 
 is used instead of " descendants," the last clause of the text should also 
 be used. 
 
CH. 2VI.] FORM — WILL NO. 1. 101 
 
 Fifth. I give and devise to my beloved son, J B ,* 
 
 the farm on which he now resides, lying in county, in 
 
 the state of , being the (here describe the tract). 
 
 Sixth. I give and bequeath to my beloved daughter, Mary 
 Styles, the following tract of land lying in the county of (here 
 describe the land) ; to have and enjoy the use thereof during 
 her life, and upon her death to be divided in equal parts among 
 her children. And I give and bequeath to my said daughter, 
 the income from ten shares of stock now owned by me in the 
 
 First National Bank of . But the said stock itself I give 
 
 and bequeath to such of her children as may survive her. 
 
 Seventh'. I give and bequeath unto the Illinois Industrial Uni- 
 versity one thousand dollars, to be paid within two years after 
 my death. 
 
 Eighth. Upon .the death of my said wife, or upon my own 
 death, in case I survive her, I give and devise the tract of land 
 above devised to her, unto my said son and daughter, to be 
 divided in equal parts between them ; and in case I survive 
 my said wife, I give and bequeath unto my said son and 
 daughter all of my personal estate of every nature whatsoever, 
 remaining after the payment of the said legacies, to be divided 
 in like manner between them. And I direct that in case 
 my said son and daughter cannot agree upon a division of the 
 last mentioned land and personal estate between them, my ex- 
 ecutor shall sell the same within six months after request in 
 writing by either of them, at public or private sale, and for 
 cash in hand or upon credit, as he shall deem best, and divide 
 such of the proceeds as remain after paying costs of the sale, 
 between my said son and daughter. 
 
 4 It is not necessary that the words " and his heirs " he inserted here in 
 order to give the devisee a fee simple estate of inheritance. If a less 
 estate is intended, words showing that intent must be used. Bee Stat. Tit. 
 Conveyances, § 13, Furthermore, when the devisee or legatee is a child or 
 grandchild of the testator, and dies "before the testator, the devise or legacy 
 will go to the issue of the devisee or legatee unless there is a provision in 
 the will for such contingency: hut if there is no such issue at the time of 
 the testator's death and no such provision, the estate devised or bequeathed 
 is treated as intestate estate. See Stat. Tit. Descent, § 11. 
 
102 FORM — WILL NO. 1. [CH. XVL 
 
 Ninth. All the residue of my lands not herein devised, I 
 give and devise unto my said son and daughter, to be 
 divided in equal parts between them, or sold by my executor, 
 and the proceeds divided in equal parts between them, as 
 directed in the eighth clause of this will. 
 
 Tenth. I hereby constitute and appoint my said wife, T? — 
 
 B , executrix of this will, and direct that she may not be 
 
 required by the county court to give any bond as such execu- 
 trix. 6 But in case my said wife shall fail or refuse to become 
 such executrix, I hereby constitute and appoint my trusty 
 friend, E S , the executor of this will. 
 
 .Eleventh. Having heretofore entered into contracts, and may 
 hereafter do so, with divers individuals, to convey to them cer- 
 tain lands owned by me, upon certain conditions stipulated in 
 such contracts, which lands may remain unconveyed by me at 
 my death, I hereby authorize my executor to convey all such 
 lands to the respective purchasers, upon the performance by 
 them of the conditions specified in such contracts to be per- 
 formed on their part. 
 
 Twelfth. I hereby authorize my said executrix to compound 
 or allow time for the payment of any debt due to my estate, 
 whether supported by strictly legal evidence or not ; and to set- 
 tle all accounts between me and any person or persons, as my 
 said executrix shall in her discretion think expedient ; and to re- 
 fer any matters in difference relating to my affairs to arbitration. 
 
 And I hereby revoke all former wills by me made. 
 
 6 See Stat. Tit. Administration, §§ 7, 8. 
 
 6 Persons of the age of seventeen years, of sound mind and memory, may 
 be appointed executors : but if the executor so appointed is, at the time of 
 proving the will, under twenty-one years of age, or of unsound mind, or 
 convicted of any crime rendering him infamous, administration with the 
 will annexed may be granted to another during his minority or other disa- 
 bility, unless there is another executor who accepts the trust, in which case 
 the estate shall be administered by such other executor, until the minor ar- 
 rives at full age or the other disability is removed, when, upon giving 
 bond as in other cases, he may become joint executor with the former. 
 When a married woman is executrix, her husband may give bond with her 
 for her faithful performance of the trust, as in other cases. Stat. Admin- 
 istration, § 3. 
 
CH. XVI.] WILL — ATTESTATION. 103 
 
 In witness whereof I, A B , have hereunto set my 
 
 hand, 7 the day of , 187-. A B . 
 
 The foregoing will was signed by the said A B- 
 
 our presence, and attested by us in his presence. 8 
 
 J C- 
 
 E F- 
 
 Or, the attestation may be as follows : 
 
 The signature to the foregoing will of the said A B 
 
 was acknowledged by him in our presence to be his act and 
 deed, and we have attested the same in his presence. 
 
 J C . 
 
 E F . 
 
 Or: 
 
 The name of the said A B was in our presence 
 
 signed to the foregoing will, by E , in the presence 
 
 and by the direction of said A B , in whose pres- 
 ence we have signed our names as witnesses thereto. 
 
 J C- 
 
 E F- 
 
 But if it should be uncertain in what state probate . of the 
 will might be granted, in order to meet any peculiarity in the 
 laws of any other state or country, the following form may be 
 adopted and a wax or wafer seal used by the testator : 
 
 Signed, sealed, published and declared by the said A 
 
 B , as and for his last will and testament, in the presence of 
 
 us who, in his presence, and in the presence of each other, and 
 at his request, have subscribed our names as witnesses thereto. 
 
 t> m ' ( (Here state the residence 
 
 £r „ '| of each witness.) 
 
 F H . ) ; 
 
 1 The statute does not require a seal, hut see ante, § 35 n. in case it is ex- 
 ecuted under a power contained in another instrument. 
 
 8 No attestation clause being 1 necessary, as we have seen, ante, § 42, yet it is 
 advisable to affix one reciting the facts as they occurred, and as fully as 
 the statute requires them to he proved by the attesting witnesses, for in 
 case of their death, the attestation would afford ground for belief that 
 the will was really executed as required by the statute. 
 
104 FOEM — WILL NO. 2. -[CH. XVI. 
 
 Note. — It will be obvious to all that in the selection of witnesses, those 
 of intelligence and respectability should be preferred ; because their at- 
 testation of the will by a formal clause of attestation, tends very strongly 
 to show that all of the formalities therein enumerated were duly complied 
 with. And it is of great importance that witnesses residing in towns and 
 cities especially, should be permanent inhabitants, and their residence 
 well known. 
 
 It must also be borne in mind that the witnesses should not be persons 
 who are to take any benefit under the will, as, provisions in their favor 
 would be void, unless there should be the requisite number of other wit- 
 nesses having legal qualifications. See ante, § 46. 
 
 FOEM No. 2. 
 
 § 211. Proceed as before to the second item. Ante, § 210. 
 
 Second. After payment of such funeral expenses and debts, 
 
 I give, devise and bequeath unto my beloved wife, F 
 
 B , the farm on which we now reside, lying in the county, 
 
 etc. (here describe the land), during her life, and all of the cat- 
 tle, horses, sheep and hogs by me owned and kept thereon : 
 also all the household and other articles of personal property 
 not here enumerated, or otherwise disposed of in this will, dur- 
 ing her life, after having disposed of a sufficient amount there- 
 of to pay the expenses and debts aforesaid; and upon her 
 death, all the personal property above bequeathed and remain- 
 ing unexpended by her or in payment of her funeral expenses 
 and debts, I bequeath to my beloved son, J B . 
 
 Third. I give and devise unto the said J B , the 
 
 farm on which he now resides (describe it), subject to the pay- 
 ment by him of. my mortgage thereon to W B .* 
 
 9 " Subject to the payment by him of my mortgage thereon, etc." If 
 some such provision were not made, where the incumbrance is created by 
 the testator, or his ancestor, his personal estate would be liable for its 
 payment, and the devisee would take with the right to have the encum- 
 brance discharged out of the personal estate of the testator. But where 
 the incumbrance was created by the grantor of the testator, and the testa- 
 tor has not assumed by contract with the owner of the incumbrance per- 
 sonally and directly to discharge the same, the devisee will take subject 
 to the incumbrance, and must discharge it himself unless the will other- 
 wise provides. 3 Bedf. Wills, § 43 pi. 26, 27, 28. 
 
CH. XVI.] FOEM — WILL NO. 3. 105 
 Fourth. I hereby constitute and appoint my said wife, F 
 
 B , executrix of this will, and request that she may not be 
 
 required to give bond for the discharge of her duties as such 
 executrix. 
 
 Lastly, I hereby revoke all former wills made by me. 
 
 (Conclude as in the first form, ante, p 103.) 
 
 Form No. 3. 
 
 Begin as before, ante, § 210. 
 
 § 212. Second. I give, devise and bequeath unto my be- 
 loved wife, F B , all my remaining estate, both real 
 
 and personal, in whatever it may consist, or wherever situated, 
 at the time of my decease, to be by her used and disposed of, 
 during her natural life, precisely the same as I myself might 
 do if living ; and to distribute the same by gift, or otherwise, 
 among my children at any time during her life, as to her shall 
 seem meet and proper ; and to appoint the same among my 
 said children by will, after her decease, according to her own 
 judgment and discretion. 
 
 Third. But if any of my said estate shall remain undis- 
 posed of by my said wife, at the time of her decease, I give, 
 devise, and bequeath all such residue and remainder of my 
 said estate, to be equally divided among my children who shall 
 be living at that time, and the issue of any child who may 
 have then deceased ; such issue taking the share to which such 
 deceased child would be entitled, if living. 
 
 Fourth. But I hereby direct, that the share of any of my 
 daughters, who shall be then living, shall not absolutely vest 
 in any such daughter, but her share shall be retained by my 
 executors and trustees for the time being, whether appointed 
 by me, or by the proper tribunals of the state, and put at in- 
 terest or upon rent, and only the income thereof paid to my 
 said daughters, or any of them, during their natural lives, and 
 after their decease, the whole shares of such daughters or 
 either of them, to be equally distributed among their and each 
 of their lawful heirs, according to the laws of this state. And 
 
106 WILL — NOTES. [CH. XVX 
 
 I hereby appoint C D and E F , of, etc., 
 
 trustees of my will ; and I appoint my said wife, F B 
 
 and the said C D and E — — F executrix and 
 
 executors of my will. In witness whereof, etc. (Conclude as 
 in Form No. 1, ante, p. 103.) 
 
 Note. The father of a child likely to be born, or of any living child, 
 being a minor and unmarried, may, by his last will, dispose of the cus- 
 tody and tuition of such child, to continue during its minority, or for a 
 less time. But no such will can deprive the mother, during her life, of the 
 custody and tuition of the child, without her consent, if she be a fit and 
 competent person to have such custody and tuition. And a mother be- 
 ing sole, or surviving the father of her child, may, in like manner, dis- 
 pose of the custody and tuition of such child. Statute, title, Guardians 
 and "Wards, § 5. And the guardianship of the infant's estate may be ap- 
 pointed to one, and the custody and tuition of the minor to another. Ibid, 
 % 6. The statute provides in these cases for a bond to be given by such 
 guardian where he has control of such minor's estate, and declares each 
 guardian's powers and duties to be the same within the scope of his ap- 
 pointment, as a guardian appointed by the court. §§ 7, 8. He must be 
 commissioned by the county court, and give bond, unless merely appointed 
 for the custody and tuition of the minor. But if the testator in his will 
 requests that a bond be not required, no such bond will be required, unless 
 the court shall deem it necessary. § 9. 
 
 Of course the will may direct the place and extent of the minor's edu- 
 cation. , 
 
 When a testator desires to have his property controlled by a trustee and 
 the profits used for the support of a relative or friend, or for the benefit of 
 an institution, or the like, it is usual to will the estate to some person 
 upon trusts specified in the will, and in the same instrument create him 
 executor, or appoint some one else executor. This is often done where 
 the beneficiary is of dissipated habits or unsound mind, or for any cause, 
 unable or unfit to manage the estate. 
 
 In such cases the trustee is often empowered to sell or mortgage real 
 and personal property, and with the proceeds to pay debts or purchase 
 stocks, or loan such proceeds upon specified securities, and apply the 
 income to the payment of annuities or other purposes, and upon the hap- 
 pening of a specified contingency, to convey the property or distribute 
 the stocks and securities as may be directed in the will. It is usual also 
 to exempt the trustee from liability for losses occurring without his own 
 willful default, and authorize him to retain all expenses incidental to the 
 trusteeship. 
 
 There may also arise contingencies in which it would be advisable to 
 apply a portion of the corpus of the fund committed to trustees towards 
 
CH. XVI.] FORM — CODICIL. 107 
 
 the support or the settlement in life of the beneficiaries. Unless there is 
 power given for this the trust might fail to accomplish the testator's 
 design. 
 
 It is also advisable to provide for the appointment of another trustee 
 in case of his death or refusal to serve. 
 
 It will be perceived upon a moment's reflection, that a will involving 
 these questions should not be prepared hastily nor by an unlearned and 
 unskilled hand. 
 
 It would be well in many cases, before determining the language to 
 be used to examine chapter 43 concerning lapsed legacies. 
 
 Form No. 4. — Codicil. 
 
 § 213. Whereas, I, A B , of the county of , and 
 
 state of , did make my last will in writing, bearing date 
 
 the day of , 187 — , and did thereby provide (here 
 
 set forth the provision proposed to be changed). Now instead 
 of said provision I hereby give, devise, etc. 
 
 And I hereby declare this to be a codicil to my said last wilL 
 In witness whereof, etc. (Conclude and sign and have the at- 
 testation made in the same form, and by the same number of 
 witnesses as a will, ante, p. 103.)" 
 
 Poem Wo. 5. — Nuncupative Will. 
 
 § 214. The following is the will of A B , of, etc., 
 
 made by him at, etc., during his last sickness ; that is to say, 
 on the 2d day of May, 1872. And the same was made by him 
 in the presence of us, whose names are hereunto subscribed as 
 witnesses, and who heard him pronounce the following words, 
 and at the same time request us to bear witness that such was 
 his will (or whatever he said to that effect). 
 
 He said, " I give my silver watch to John Jkown, and my 
 surveyor's compass and chain to Geofrey Styles (detailing each 
 particular.) 
 
 All the rest I give to my wife ; she may be my executrix." 
 
 10 Though not absolutely necessary, it would be often a saving of ex- 
 pense and trouble, to have the same witnesses to the codicil who attested 
 the will. 
 
108 FOEM — NUNCUPATIVE WILL. [CH. XVII. 
 
 Done in the sick chamber of the said A B . on the 
 
 day and year aforesaid (or, The foregoing will was reduced to 
 writing and signed by us, as witnesses thereto, on the 5th day 
 
 of May, 1872) ; the said A B having died on the 4th 
 
 day of May, 1872 (or of the same year). 
 
 ^ c ' 1 Witnesses. 
 
 Note. The statute requires nuncupative wills to be reduced to writing 
 within twenty days after the making thereof, and also within ten days 
 after the death of the testator, and that the last fact shall be proved by 
 two disinterested witnesses other than those whose names are signed to 
 the same. See ante, § 56, and see Arnett v. Arnett, 27, 111. 347, as to the 
 testator's request to the witnesses. See Harrington v. Stees, 6 Leg. News, 811. 
 
 CHAPTER XVII. 
 
 OP THE ISSUING OF LETTERS TESTAMENTARY. 
 
 i 218. Letters testamentary to be issued to the executor named in the will. 
 Who next entitled thereto. 
 
 217. What evidence of executor's refusal to serve necessary. 
 
 218. Where executor named in the will is a minor, when the will is 
 
 proved, or convicted of crime, or part of the executors only 
 accept or are competent, who will be appointed. 
 
 219. Minority, death or disqualification of the executor should appear 
 
 of record, and the widow, next of kin or creditors may be ap- 
 pointed. 
 
 220. The conviction of what crimes disqualifies. 
 
 221. An affidavit showing the death of the testator, and all other perti- 
 
 nent facts, should be filed with the clerk. 
 
 222. Executors and administrators with the will annexed, to take and 
 
 subscribe an oath. 
 
 223. And give bond. 
 
 224. Testators may by directions in the will dispense with the bond. 
 
 225. Form of letters testamentary. — Copy of the will to accompany the 
 
 letters. 
 
 226. Power of executor over testator's estate, before probate of will. 
 226(i. Duties of administrator with the will annexed the same as those 
 
 of the executor, except in cases of trust conferred on the latter. 
 
OH. XVII] LETTERS TESTAMENTARY. 109 
 
 § 216. The will having been properly proved, the next 
 step for the court is, to make an order directing the issue of let- 
 ters testamentary thereon to the person named in the will as 
 executor, if he is legally competent, and accepts the trust, and 
 gives bonds to discharge the same ; but when there is no exec- 
 utor named in the will, or he dies, refuses to act, or is otherwise 
 disqualified, the court must commit the administration of the 
 estate to the widow, surviving husband, next of kin or credi- 
 tor, the same as if the testator bad died without leaving a will. 1 
 
 § 217. The person named in the will as executor, if he is 
 legally competent, has a right to administer, and he can only 
 be deprived of this right by his refusal to accept the ex- 
 ecutorship ; and suck refusal should be evidenced by some 
 statement entered of record. 2 The proper practice would be to 
 require his refusal to be in writing, where that is practicable, 
 and filed with the court ; but this is not absolutely essential. 
 The court should be satisfied of the refusal by some sufficient 
 evidence, and that fact should be entered of record. 3 The 
 principal danger arising from a neglect to make the refusal a 
 matter of record, would occur where two or more executors are 
 named in the will, and are empowered' to sell real estate. In 
 such case they must all join in the conveyance, or it will not 
 be good. But if a part of them " refuse " to become executors, 
 those who accept the executorship and qualify, can make a 
 valid conveyance. 8 So, if they "fail," under § 97 of the law 
 of 1872. 
 
 § 218. Persons of the age of seventeen years, of sound 
 mind and memory, may be appointed executors ; but when a 
 
 1 Stat. Administration, § 1. See post, § 533, as to who are next of kin. 
 Eefusal to act, see Form No. 5. Form of Letters No. 7. 
 
 2 Sponsler's Est. 13 P. F. Smith, Pa. And see post, § 441. 
 
 s Olinefelter v. Ayres, 16 111. 329 ; ib. 20, 111. 465 ; Wardwell v. McDowell, 
 31 111, 364. These cases arose out of the same will. The first was decided 
 without reference to the act of March 4, 1867, Session Laws, 179 ; hut which 
 was repealed; and the two latter cases were decided upon the peculiar 
 provisions of that act. But we think they sustain the text. It would not 
 be sufficient if the record showed that the executor named " declined " to 
 act. Ibid. 
 
110 WHO ENTITLED TO LETTERS. [CH. XVII. 
 
 person appointed executor is, at the the time of proving the 
 will, under the age of twenty-one years, or of unsound mind, 
 or convicted of any crime rendering him infamous, administra- 
 tion with the will annexed may be granted during his minority 
 or other disability, unless there is another executor who accepts 
 the trust ; in which case the estate shall be administered by 
 such other executor until the minor arrives at full age, or the 
 other disability is removed, when, upon giving bond, as in 
 other cases, he may be admitted as joint executor with the 
 former. 4 And where two or more executors are appointed by 
 the will and one or more of them dies, refuses to take upon him- 
 self the executorship, or is otherwise disqualified, letters testa- 
 mentary will be granted thereon to the other person or persons 
 so named, not renouncing (refusing) as aforesaid, and not dis- 
 qualified. 8 
 
 § 219. Where the executor named in the will is a minor, 
 or dies, or is disqualified, that fact should be made to appear to 
 the court by sufficient proof, and be set forth in the record. 
 And in such cases, as well as where he rufuses to accept the 
 executorship, if there is no other executor who accepts the trust, 
 the priority of right of the widow or surviving husband over 
 the next of kin, and the next of kin over creditors and of cred- 
 itors over others, to administration continues the same length of 
 time as in case of intestate estates. 
 
 § 220. Those crimes the conviction of which render a per- 
 son infamous, are declared by the statute, title Criminal Juris- 
 prudence, § 174, to be rape, kidnapping, willful and corrupt 
 perjury or subornation of perjury, arson, burglary, robbery, 
 sodomy or the crime against nature, incest, larceny, forgery, 
 counterfeiting and bigamy. 
 
 § 221. Though the statute does not expressly require it, as 
 it does in cases of administration (see sec. 20), the court re- 
 quires, before letters testamentary will be issued, that there 
 shall be filed with the clerk an affidavit of the person applying 
 for the same, or some other credible person, setting forth, as 
 
 4 Stat. Administration, Sec. 3. 
 
 6 lb. § 5. See Wisdom v. Becker, 52 111. 343. 
 
CH. XVII.] OATH — BOND. Ill 
 
 in oases of intestates as near as may be, the date of the death 
 of the deceased, the probable amount or value of the personal 
 estate, and the names of the heirs and widow or surviving 
 husband, if known. This will enable the court to determine 
 the amount of the executor's bond, and inform the court of the 
 existence of the widow, surviving husband, or next of kin, and 
 enable it while administration is proceeding, to keep their rights 
 in view. And in case the executor named in the will is dis- 
 qualified to act, such other facts may be set forth as would en- 
 able the court to determine who is entitled to letters of admin- 
 istration with the will annexed." 
 
 § 222. Section 6 provides that, every executor, or adminis- 
 trator wiih the will annexed, shall at the time of proving the 
 will and granting letters testamentary, or of administration, take 
 and subscribe the following oath (see Form No. 9) to be admin- 
 istered by the clerk of the county court, and to be attached to, 
 and form a part of the probate of the will. 
 
 § 228. Section 7 provides that, the executor named in the 
 will, or the administrator with the will annexed, shall, before 
 entering upon his duties, enter into bond with sufficient secu- 
 rity, to be approved by the court, in a sum double the value of 
 the estate, and payable to the people of the state of Illinois, for 
 the use of the parties interested, in the following form (see Form 
 No. 8) ; which bond must be signed and sealed by the executor 
 or administrator, and his securities', and filed in the office of the 
 clerk and recorded. And section 3 provides that, when a mar- 
 ried woman is executrix her husband may give bond with her, 
 for her faithful performance of the trust as in other cases. It is 
 proper to observe that the strictest care should be taken to 
 make the bond conform in every respect to the statute, other- 
 wise it might prove to be worthless. 7 
 
 6 Letters of administration though irregularly granted, by a court hav- 
 ing jurisdiction of the person, cannot he questioned collaterally. "Wight 
 v. Wallbauni, 39 111. 355 : Duffin v. Abbott, 48 111. 17. And a writ of error 
 will not lie to the supreme court to review the propriety of the action of 
 the county court in granting letters of administration. Hobson v. Paine, 40 
 111. 35 ; Schnell v. City of Chicago, 43 111. 382. 
 
 'No case appears to have been decided by the- supreme court of 1111- 
 
112 executor's powers. [ch. XVII. 
 
 § 224. Section 8 provides that, -when a testator leaves visible' 
 estate more than sufficient to pay all of his debts, and his will 
 directs that his executor shall not be obliged to give security, 
 no security shall be required, unless the court sees cause, from 
 its own knowledge, or the suggestions of creditors and legatees, 
 to suspect the executor of fraud, or that the personal estate will 
 not be sufficient to 'pay the debts; in which case the court may 
 require security, and such security shall be given before or after 
 letters testamentary are granted, notwithstanding directions to 
 the contrary in the will. 
 
 § 225. The statute, title Administration, § 10, prescribes the 
 form of letters testamentary (see Form No. 10), and § 1 directs 
 that in every case a copy of the will shall go out with the let- 
 ters. 
 
 § 226. The power of the executor over the testator's estate, 
 before probate of the will and obtaining letters testamentary, 
 extends to the burial of the deceased, the payment of necessary 
 funeral charges, and the taking care of the estate ; but in such 
 cases, if the will is rejected when presented to probate, and such 
 executor thereby never qualifies, he shall not be liable as an 
 executor of his own wrong, unless, upon refusal to deliver the 
 estate to the person authorized to receive the same : Provided, 
 that this section shall not be construed to exempt any person 
 claiming to be executor, as aforesaid, for any waste or misappli- 
 cation of such estate." The right of the party claiming under 
 the will, arises out of and by the will, and when it is probated, 
 the proof is thereby created of this right, — which vested at the 
 death of the testator — the probate not conferring, but being 
 merely evidence of the right" 
 
 § 226a. In general, the duties of the executor wholly de- 
 volve upon the administrator with the will annexed, so far as they 
 pertain to the settlement of the estate ; but it seems in all cases 
 where there is a trust connected with the power in the executor, 
 
 nois, involving this question. But the decisions in other states are not 
 uniform. See on this subject 3 Redf. Wills, § 8, where cases are collected. 
 
 8 Stat. Admin. § 4. 
 
 •Shepard v. Carriel, 19 111. 313. 
 
CH. XVIII.] ADMINISTRATORS TO COLLECT. 113 
 
 it cannot be performed by such administrator. 10 Therefore a 
 power given by the will to the executor to sell real estate can- 
 not be executed by the administrator with the will annexed, 
 since -the power of the latter is regarded as limited to the ad- 
 ministration of the personalty." But this rule only applies to 
 cases where the power is connected with a special and personal 
 trust in the executor." "Where, beyond the duties of settle- 
 ment and distribution of the estate, the executor is charged by 
 the will with special trusts, which are of longer duration and 
 more strictly personal, these should be devolved upon a trustee 
 specially appointed for that purpose by the court of chan- 
 cery." 
 
 CHAPTBE XYIII. 
 
 ADMINISTRATORS TO COLLECT. 
 
 § 227. When the statute requires administrators to collect to be appointed. 
 
 228. To give bond — to have letters of administration. 
 
 229. To take an oath. 
 
 230. 231. Powers and duties. 
 
 232. Where another administrator is appointed, his duties, liabilities 
 and compensation. 
 
 § 227. The statute, title Administration, § 11, provides 
 that, during any contest in relation to the probate of a will or 
 codicil, before the same is recorded, or until a will which may 
 have once existed, but is destroyed or concealed, is established, 
 and the substance thereof committed to record, with proof 
 
 10 Dominick v. Michael, 4 Sandf. 374; LePort v. Delafleld, 4 Edw. Ch. 32. 
 
 11 Conklin v. Edgerton, 21 Wend. 430. See also Gilchrist v. Rea, 9 Paige, 
 66 ; Matter of Place, 7 N. T. Leg. Obs. 217. This was so held in Conk- 
 ling v. Edgerton, notwithstanding the statute of New York, in terms, gives 
 him the same powers conferred upon the executor. 
 
 »• Matter of Anderson, 5 N. Y. Leg. Obs. 302. 
 
 "Farwell v. Jacobs, 4 Mass. 634. 
 8 
 
1 14 OATH — BOND — POWERS. [CH. XVIIL 
 
 thereupon taken ; or during any contest in regard to the right 
 of executorship or to administer the estate of any person dying 
 either testate or intestate ; or whenever any other contingency 1 
 happens which is productive of great delay before letters testa- 
 mentary or of administration can be issued upon the estate of 
 such testator or intestate, to the person or persons having legal 
 preference to the same, the court may appoint any person as ad- 
 ministrator, to collect and preserve the estate of any such de- 
 cedent, until probate of his will, or until administration of his 
 estate is granted, taking bond and security for the collection of 
 the estate, making an inventory thereof, and safe keeping and 
 delivering up the same when required so to do by the court, to 
 the proper executor or administrator, whenever he shall be ad- 
 mitted and qualified as such. (See post, § 252.) 
 
 § 228. Section 13 provides that, before letters of adminis- 
 tration to collect shall be granted, the perfeon so appointed shall 
 give bond, with sufficient security, to be approved by the court, 
 and sets forth the form of such bond (see Form No. 12), which 
 bond must be signed and sealed by the administrator and his 
 securities, and filed with the clerk of the court and recorded. 
 And section 12 sets forth the form of letters of administration 
 in such cases. (See Form No. 13.) 
 
 § 229. Section 14 provides that, before an administrator to 
 collect shall enter upon the duties of his appointment, he shall 
 take and subscribe an oath or affirmation before the clerk of the 
 county court, which oath shall be filed in the office of the clerk 
 of the court before whom the same is taken. (See Form No. 11.) 
 
 § 230. The powers and duties of an administrator to collect 
 are set forth in sections 15, 1 6 and 17. Section 15 provides 
 that, every collector so appointed shall have power to collect 
 the goods, chattels and debts of the deceased, according to the 
 tenor of such letters, and to secure the same at such reasona- 
 ble and necessary expense- as shall be allowed by the court ; 
 and the court may authorize him immediately after the inven- 
 tory and appraisement of such estate, to sell such as are perish- 
 able or may depreciate by delay, and to account for the same ; 
 
 1 As to the duty of the public administrator in such cases, see post, § 252. 
 
CH. SYIII.] COMMISSION. 115 
 
 and for the whole trouble incurred by such collector, the court 
 may allow such commission on account of the said personal 
 estate actually collected and delivered to the proper executor 
 "or administrator, as the court may deem just and reasonable : 
 Provided, the commission shall not exceed six per cent, on 
 the whole amount stated in the inventory or bill of appraise- 
 ment 
 
 § 231. Section 16. Every such collector may commence 
 suits for debts due to the decedent, and release the same on 
 payment thereof ; and no such suit shall abate by the revoca- 
 tion of his letters, but the^same may be prosecuted to a final 
 decision, in the name of and by the executor or administrator 
 to whom letters testamentary or of administration may be 
 granted. 
 
 § 232. Section 17. On the granting of letters testamentary 
 or of administration, the power of such collector shall cease, 
 and it shall be his duty to deliver on demand, all property and 
 money of the deceased which shall have come to his hands or 
 possession, saving such commission as may be allowed by the 
 court as aforesaid, to the person or persons obtaining such 
 letters ; and in case any such collector shall refuse or neg- 
 lect to deliver over such property or money to his successor, 
 when legal demand is made therefor, such person so neglecting 
 or refusing shall be liable to pay twenty per cent over and 
 above the amount of all such property or money as comes to 
 his hands by virtue of his administration, and is not paid or 
 delivered over as aforesaid, and shall forfeit all claim to any 
 commission for collecting and preserving the estate ; which 
 said twenty per cent, together with all damages which may 
 be sustained by reason of the breach of any bond which may 
 be given by any such collector, may be sued for and recovered 
 by the person or persons to whom letters testamentary or of 
 administration may be granted, for the use of the estate of 
 such decedent. 
 
116 FOREIGN EXECUTORS, ETC. [CH. XIX. 
 
 CHAPTEE XIX. 
 
 FOREIGN EXECUTORS AND ADMINISTRATORS. 
 
 § 233. Their rights and duties. 
 
 § 233. The statute, title Administration, § 42, provides that, 
 when any person has proved a will and taken upon himself the 
 execution thereof, or has obtained administration of the estate of 
 an intestate in any state in the United States, or in any territory 
 thereof, such person may prosecute suits ' to enforce claims of 
 the estate of the deceased, or sell lands to pay debts, in any 
 court in this state, in the same manner as if letters testamentary 
 or of administration had been granted to him under the pro- 
 visions of the laws of this state : Provided, that such person 
 shall produce a copy of his letters testamentary or of adminis- 
 tration, authenticated in the manner prescribed by the laws of 
 congress of the United States for authenticating the records of 
 judicial acts, in any one state, in order to give them validity in 
 other states : 2 And, provided, that such executor or administrator 
 shall give a bond for costs, as in case of other non-residents. 
 And section 43 provides, that nothing contained in the pre- 
 ceding section shall be so construed as to apply to cases where 
 
 1 Under statute of 1845, from which this was copied, it was held that 
 foreign administrators have the power to sue out an execution on a judg- 
 ment rendered in favor of the intestate in his lifetime. Keefer v. Mason, 
 36 111. 406. 
 
 2 The act of congress relating to this subject was approved May 26, 
 1790, and provides in section 1, "that the records and judicial proceed- 
 ings of the courts of any state shall he admitted, in any other court 
 within the United States, by the attestation of the clerk, and the seal 
 of the court annexed, if there be a seal, together with the certificate 
 of the judge, chief justice or presiding magistrate, as the case may be, 
 that the said attestation is in due form." This statute embraces courts 
 of probate and chancery, as well as courts of common law. 1 Gr. Ev. 
 § 505. By act of congress, Mar. 27, 1804, the provisions of this act are 
 extended to the territories of the United States and the District of Co- 
 lumbia. 
 
Cn. XIX ] FOREIGN EXECUTOKS, ETC. 117 
 
 administration is obtained upon the estate of any intestate noi 
 where letters testamentary are granted in this state ; and where, 
 after any suit is commenced by any administrator or executor 
 under the provisions of the preceding sections, and before final 
 judgment thereon, administration is had, or execution under- 
 taken within this state, under the laws of the same, upon the 
 estate of any decedent, upon suggestion of such fact, entered 
 of record, the said resident administrator or executor, shall, 
 upon motion, be substituted as party to such suit ; and there- 
 upon the court shall proceed to hear and determine the same, 
 as if it had been originally instituted in the name of the said 
 resident executor or administrator, and the benefits of the 
 judgment, order or decree shall enure to him, and be assets in 
 his hands. 
 
 By sec. 1 of the act of 1853, p. 239 ; Gro. Stat. p. 828, § 192, 
 it is provided that, when any non-resident, executor or execu- 
 tors shall have proved the last will and testament of any de- 
 ceased person, and taken on him or them the execution of such 
 will in any state, district or territory of the United States, such 
 non-resident, executor or executors shall be authorized to exe- 
 cute such will in this state in the same manner as though such 
 executor or executors had qualified in this state : Provided, 
 that before such executor or executors shall sell, dispose of or 
 convey any real estate in this state, he or they shall produce 
 such will or a copy thereof, and of the letters testamentary, or 
 other authority to execute the same, under the seal of the court 
 or proper officer where such will was proved or admitted to pro- 
 bate, and of such letters or authority granted, accompanied by 
 the certificate of the judge or clerk of said court or other proper 
 officer, that such letters or authority had been granted in pur- 
 suance of or agreeably to the laws of the state, district or terri- 
 tory in which such letters, testamentary or authority were 
 granted and filed, and have the same recorded in the county 
 court of the county in which the property or some part thereof, 
 of which the testator died siezed may be situated, and the 
 county judge of such county shall certify that such will was 
 
118 SALES MAY BE APPROVED. [CH. XIX. 
 
 duly authenticated under the provisions of this act : Provided, 
 further, that said county judge shall require bond from such 
 non-resident executor or executors, or some responsible person 
 in their behalf, to the people of the state of Illinois, in such 
 penalty as such judge shall deem necessary, for the faithful ap- 
 propriation of the effects of such testator in this state, and for 
 the application of the proceeds thereof, in the first instance, to 
 the payment of all such debts, if any, as may be allowed by 
 such court against the estate of such testator, within 'two years 
 from the filing of such bond; and this provision shall be incor- 
 porated in the condition of the bond herein provided for. And 
 such bond shall be signed by some responsible person in this 
 state either as principal or surety, to be approved by said court. 
 
 Section 2 provides that, the acts of non-resident executors 
 heretofore had in selling or conveying any real estate in this 
 state, may be approved and confirmed by the county court of 
 any county where such real estate may be situated, upon petition 
 by any person interested therein, sixty days' notice being given 
 by publication in a newspaper published in such county — and 
 if no paper be published in such county, then in some newspa- 
 per published in the nearest county to that where such real 
 estate may be situated — of the intention to present such peti- 
 tion, and the time and place of such presentation ; and upon 
 such approval and confirmation, such sales and conveyances 
 heretofore made shall be as valid and effectual as if made 
 under the provisions of this act. But before such court shall 
 give such approval or confirmation, it shall require and receive 
 satisfactory evidence that such sales or conveyances were made 
 in good faith, and that the interests of creditors in this state 
 shall not be prejudiced by such approval or confirmation. 
 
 Section 3 provides that, appeals may be allowed from the 
 order of said court approving and confirming such sales and con- 
 veyances, as in other cases, by any person who may claim an in- 
 terest in the premises thus sold or conveyed 
 
 Section 4 provides that, the provisions of this act shall not 
 apply to any case where letters of administration shall have 
 
CH. XX.] ADHINTSTBATORS — APPOINTMENT. 119 
 
 been granted upon the estate of such testator in this state, un- 
 less such letters shall first be revoked or the administrator 
 shall die or resign. 
 
 By the act of 1869, p. 7 ; Gro. Stat. p. 829, § 196, it is pro- 
 vided that, foreign administrators, with the will annexed, shall 
 have the same right to bring suits in this state as is now, or may 
 be, conferred by law upon foreign administrators and executors ; 
 and that any foreign administrator, with the will annexed, shall 
 in all things be governed, in bringing any suits in this state, by 
 the law governing foreign executors and administrators suing 
 in this state. 
 
 CHAPTER XX. 
 APPOINTMENT OP ADMINISTRATORS. 
 
 § 234. In what county to be appointed. 
 
 235. Proof of death and other facts to show jurisdiction of the court. 
 
 236. Lapse of seven years after death a bar to granting of letters. 
 
 237. Who entitled to letters of administration. 
 
 238. Public administrators appointed in certain cases. 
 
 239. The order in which persons are entitled to administration. 
 
 240. Relinquishment of persons having a prior right to administer. 
 
 241. 242. Oath and Bond. 
 
 243. Bonds where form not prescribed by statute, how made. 
 
 244. Two or more administrators may give joint or separate bonds. 
 
 245. How bonds of the personal representative may be prosecuted. 
 
 246. Courts of equity have jurisdiction in certain cases. 
 
 § 234. The statute does not direct where administration of 
 intestate estates shall be granted, but does in case of testate 
 estates. (See ante, § 134.) The general rule is however, that the 
 jurisdiction of every thing pertaining to the administration of 
 estates is primarily in the county court of the county where 
 the intestate had a mansion house or known place of resi- 
 dence at the time of his decease. 1 If he was a non-resident and 
 
 "3Redf.Wills, §2, pi. 1. 
 
120 WHO ENTITLED TO LETTERS. [CH. XX. 
 
 left only lands, administration sliould be granted in the county 
 where such lands or a part thereof are situated j* and if he left 
 only personal estate, administration would properly be granted 
 in the county where the same or a part thereof is situated. If 
 the deceased had no known place of residence, and no lands in 
 the state, administration might properly be granted in the 
 county where he died or wherein his personal property ia 
 situated. 
 
 § 235. The first step to be taken after the death of the 
 intestate, by the party proposing to administer upon the estate, 
 is to make satisfactory proof before the proper county court, 
 that the person on whose estate letters of administration are 
 requested is dead. 8 And such letters shall not be issued until 
 the applicant therefor, or some credible person, shall make and 
 file an affidavit with the proper clerk, setting forth, as near as 
 may be the date of the death of the deceased, 4 the probable 
 amount or value of the personal estate, and the names of the 
 heirs and widow, or surviving husband, if known. And such 
 other facts, like the residence, place of death, where the 
 deceased had property situated, etc., may be set forth, as 
 would be necessary to give the court jurisdiction of the 
 administration. (See Form of Letters No. 19, and note.) 
 
 § 236. The lapse of seven years after the death of the 
 decedent constitutes a bar to granting letters of administration, 
 but it may be removed by showing circumstances which pre- 
 vented an earlier application; as that the death was not 
 known.' 
 
 § 237. The statute, title Administration, § 18, provides, that 
 administration shall be granted to the husband on the goods 
 and chattels of his wife, and to the widow or the next of kin 
 to the intestate, or some of them, if they will accept the same, 
 
 2 Bowles v. Bouse, 3 Gilm. 400. 
 
 3 Stat. Admin. §18. 
 
 4 See this subject, ante, §§ 137-141. 
 
 5 Stat. Admin. § 20. See Langworthy v. Baker, 23 111. 484, and Schnell v. 
 City of Chicago, 38 111. 384. Form of Petition No. 14. 
 
 6 Fitzgerrald v. Glancy, 49 111. 465 As to when death will be presumed, 
 see ante, 139. 
 
CH. XX.] WHO ENTITLED TO LETTERS. 121 
 
 and are not disqualified ; but in all cases the widow shall have 
 the preference ; and if no widow or other relative of the intestate 
 applies within sixty days from the death of the intestate, the 
 court may grant administration to any creditor who shall apply 
 for the same. If no creditor applies within fifteen days next 
 after the lapse of sixty days, as aforesaid, administration may 
 he granted to any person whom the court may think will best 
 manage the estate. In all cases where the intestate is a non- 
 resident, or without a widow, next of kin or creditors in this 
 state, but leaves property within the state, administration shall 
 be granted to the public administrator of the proper county. 
 * * * Provided, that no non-resident of this state shall be 
 appointed administrator, or allowed to act as such.' 
 
 § 238. The same statute, section 46, provides for the ap- 
 pointment of the public administrator, to administer upon real 
 estate in certain cases. (See post, § 247.) 
 
 § 239. The persons entitled to letters rank in the following 
 order : 1. The surviving husband or widow. 2. The next of 
 kin. 3. Creditors. The next of kin would probably be deter- 
 mined by the rules of descent specified in the statute, title 
 Descent, § 1, clause 5 ; for the aim of the law seems to be to 
 give administration in all cases to those in some way interested 
 in the estate, either as heirs or creditors, in preference to others, 
 The next of kin would therefore be, 1. The children, 8 and their 
 descendents. 2. The father or mother. 3. The brothers and 
 sisters. 4. The children of brothers and sisters. 9 This is as 
 far as this branch of the inquiry could profitably go. Creditors 
 are those to whom the deceased was indebted. And any per- 
 son having a cause of action against him which survives, is re- 
 
 7 See Child v. Gratiot, 41 111. 315. A surviving partner should never he 
 appointed administrator on the estate of a deceased partner, because as 
 such survivor he becomes accountable to the estate and could not well 
 account with himself. Heward v. Slagle, 51 111. 336. 
 
 8 The issue of avoid marriage have no right to administer on the estate 
 of their deceased father. Myatt v. Myatt, 44 111. 473. And having no right 
 to administer, would have no right to apply for revocation of letters of ad- 
 ministration, lb. 
 
 »3Redf. "Wills, §7, pi. 8. 
 
122 OATH — BOND. [CH. XX 
 
 garded as a creditor, otherwise not. Hence the promisee, in a 
 contract of marriage, cannot be regarded as a creditor of the 
 promisor within the statutes regulating the granting of letters 
 of administration. 10 Letters must be revoked where they have 
 been granted upon a false and fraudulent pretense of being a 
 creditor of the estate, or upon any other fraudulent pretense 
 whatever." 
 
 § 240. Section 19 provides that, letters of administration 
 upon the estate of an intestate shall not be granted to any per- 
 son, not entitled to the same as husband, widow, next of kin, 
 creditor or public administrator, within seventy-five days after 
 the death of the intestate, without satisfactory evidence that 
 the persons having the preference have relinquished their prior 
 right thereto ; but if application is made after the expiration of 
 seventy-five days, the court may grant letters to the applicant 
 or any other person, as he may think fit.' 2 This includes the 
 power to appoint the public administrator. 13 
 
 § 241. It is the duty of the court upon granting administra- 
 tion, to require each administrator, public administrators ex- 
 cepted, to take and subscribe an oath to be filed with the clerk 
 of the court," in substance following. (See Form No. 17.) 
 
 §. 242. Each administrator must before entering upon the 
 duties of his office, enter into bond, with sufficient security, to 
 be approved by the court, in a sum double the value of the 
 estate, payable to the people of the state of Illinois, for the par- 
 ties interested, substantially in the following form (see Form 
 
 10 Stebbins v. Palmer, 1 Pick. 71; Smith v. Sherman, 4 Cush. 408. See 
 Stat. Tit. Admin. § 123. But neither husband or wife is next of kin to the 
 other. Townsend v. Badcliffe, 44 111. 446. 
 
 11 Stat. Admin. § 26 ; post, § 253. See Form No. 19. 
 
 12 See Form of Relinquishment, No. 15, and Form of Clerk's Entry, No. 
 16. The appointment of an administrator by the proper court cannot be 
 questioned in a collateral proceeding. Duffin v. Abbott, 48 111. 17 ; "Wight 
 v. Wallbaum, 39 111. 563. But may on appeal or error, Schnell v. City of 
 Chicago, 38 111. 382. This point on error was held otherwise in Paine v. 
 Hobson, 40 111. 25. 
 
 13 Schnell v. City of Chicago, supra. And see this case as to the effect of 
 an irregular appointment of administrators both as to time and person. 
 
 14 Stat. Tit. Admin. § 22. 
 
CH. XX.] ADMINISTKATOKS' BONDS. 123 
 
 No. 18), which bond must be signed and sealed by the adminis- 
 trator and his securities, attested by the clerk and filed in his 
 office. 16 
 
 § 243. In all cases where bonds shall be taken from an ad- 
 
 • ministrator de bonis non, or in any other case where a form is 
 
 not prescribed in the act in relation to administration, the same 
 
 shall be made, as nearly as may be, in conformity with the form 
 
 last prescribed, with variations to suit each particular case. 10 
 
 § 244. When two or more persons are appointed executors 
 or administrators of the same estate, the court may take a sep- 
 arate bond with sureties from each, or a joint bond with sure- 
 ties from all." 
 
 § 245. Bonds given by any executor or administrator, either 
 with or without the will annexed, or de bonis non, to collect, or 
 public administrator, may be put in suit and prosecuted against 
 all or any one or more of the obligors named therein, in the 
 name of the people of the state of Illinois, for the use of any 
 person who may have been injured by reason of the neglect or 
 improper conduct of any such executor or administrator ; and 
 such bond shall not become void on the first recovery thereon, 
 but may be sued upon, from time to time, until the whole penalty 
 shall be recovered : Provided, that the person for whose use the 
 same is prosecuted, shall be liable for all costs which may accrue 
 in the prosecution of the same, in case the plaintiffs fail in their 
 suit ; and certified copies of all such bonds, under the seal of 
 the clerk of the county court, shall be received as evidence to 
 authorize such recovery in any^ourt of law or equity of com- 
 petent jurisdiction. 1 * 
 
 § 246. In People v. Lott, 27 111. 215, it was held that when 
 administrators have given several bonds, and there is a compli- 
 
 15 Stat. Tit. Admin. § 23. See Form No. 18. 
 
 » Ibid. 
 
 "Stat. Admin. §34. 
 
 18 Stat. Tit. Admin. § 25. Several actions may be maintained on an ad- 
 ministrator's bond. People v. Randolph, 24 111. 324. And for pleadings on 
 a suit on a bond where a co-obligor is dead, Cummings v. People, 50 111. 
 132. 
 
124 PUBLIC ADMINISTRATORS. [OH. XXI. 
 
 cation of interests, resulting from the death, of one of the ad- 
 ministrators, and of some of the sureties, whose legal represent- 
 atives cannot be made parties in a joint action at law upon the 
 bonds, a court of equity will entertain jurisdiction ; and the 
 representatives of all the deceased sureties should be made 
 parties to the bill. The 69th (now 25th) section of the statute 
 in giving an action on the bond of the personal representative, 
 against all or any portion of the obligors, has reference only to 
 actions at law, and not to suits in chancery. The last clause of 
 the section, making certified copies of such bonds evidence, 
 was only designed to change a rule of evidence and not the 
 practice in courts of equity. 
 
 CHAPTEE XXI. 
 
 PUBLIC ADMINISTRATORS — THEIR APPOINTMENT AND 
 
 DUTIES. 
 
 § 247. Appointment — when to administer. 
 
 248. May administer on estates of non-residents as well as residents. 
 
 249. To give bond — neglect of duty — its effect. 
 
 250. Letters to be revoked when it appears that there is any other person 
 
 entitled thereto. 
 
 251. "What to be done with any balance of money remaining in his 
 
 hands. 
 
 252. Further duties. - 
 
 § 247. The governor of this state is required to appoint, by 
 and with the advice and consent of the senate, a public admin- 
 istrator in and for each county of the state, and to fill vacan- 
 cies in the office ; J and the person so appointed is required, be- 
 fore entering upon the duties of his office, to take and subscribe 
 and file in the office of the clerk of the county court, an oath." 
 (See Form No. 20, and note.) 
 
 1 Stat. Tit. Admin §44. 
 5 lb. §45. 
 
CH. XXI.] JURISDICTION — BOND. 125 
 
 Section 46 provides that, " Whenever any person dies seized 
 or possessed of any real estate within this state, 3 or having any 
 right or interest therein, (but) has no relative or creditor within 
 this state who will administer upon such deceased person's es- 
 tate ; it shall be the duty of the county court, upon application 
 of any person interested therein, to commit the administration 
 of such estate to the public administrator of the proper county." 
 In Langworihy v. Balcer, 23 HI. 484, the supreme court of Illi- 
 nois, in considering the jurisdiction of the county court under 
 the foregoing section to commit the administration to the pub- 
 lic administrator, said, " We think, before the court could get 
 jurisdiction of this case to act, it should have affirmatively ap- 
 peared to the court, that there was no relative or creditor with- 
 in the state to whom administration might be committed. It 
 should further have affirmatively appeared, that the application 
 for the appointment of an administrator on the estate was made 
 by a party interested in the estate. * * * It is the exist- 
 ence, of these facts which awakens the power of the court, which 
 calls it into action. They are fundamental facts." 4 (See Form 
 of Petition, No. 21.) 
 
 § 248. The section last quoted underwent judicial construc- 
 tion in the case of Bowies' Heirs v. Bouse, Public Admr. 3 Gilm. 
 409, and in that case it was held, that it applied as well to the 
 estates of non-resident as to resident decedents. It was also 
 held that, the proper county for administration, in case of non- 
 residents dying, leaving lands in this state, is the county where 
 such lands or a part of them are situated. 6 
 
 § 249. Section 47 provides that, "It shall be the duty of 
 the county judge, upon granting letters of administration to a 
 public administrator, to take bond the same as (from) other 
 
 3 See ante, §§ 237, 239, as to the other cases where administration will be 
 granted to public administrators, and the priority of right to administra- 
 tion, between widow, next of kin and creditors. 
 
 4 See Wilkins v. Rosenthal, 1 Leg. News, 139, where letters were denied 
 to the British consul, and administration given to the public adminis- 
 trator. „ 
 
 6 In this case the petition alleged that the deceased left no personal prop- 
 erty of any kind in the state. 
 
126 CLAIMS. [CH. XXI. 
 
 admistrators ; and if any public administrator shall neglect or 
 refuse to take out letters of administration, and give bond as 
 aforesaid, within sixty days after it becomes his duty to do so, 
 his office shall be deemed vacant, and upon the certificate of 
 the county judge of such fact, the governor shall fill such 
 vacancy, as aforesaid." (See Form of Bond, No. 18.) 
 
 § 250. Section 48 provides that, " Whenever administration 
 is granted to any public administrator, and it shall afterwards 
 appear that there is a widow or next of kin, or creditor of the 
 deceased, entitled to the preference of administration by this act, 
 it shall be the duty of the county court to revoke the letters 
 granted to such public administrator, and to grant the same to 
 such widow, next of kin or creditor entitled thereto : " Provided, 
 application is made by such person within six months after 
 letters were granted to the public administrator ; saving to 
 such administrator, in all cases, all such sums of money on 
 account of commissions or expenses as are due to, or incurred 
 by him, in the management of said estate." 
 
 § 251. Section 49 of the same statute provides, " If any balance 
 of any such intestate estate as may, at any time, be committed 
 to any public administrator, shall remain in the hands of 
 such administrator after all just debts and charges against 
 such estate, which have come to the knowledge of such 
 public administrator within two years after the administration 
 of such estate was committed to him, are fully paid, such ad- 
 ministrator shall cause the amount thereof, with the name of 
 the intestate, and the time and place of his decease, to be pub- 
 lished in some newspaper published in his county, or if no 
 newspaper is published in his county, then in the nearest news- 
 paper published in this state, for eight weeks successively, 
 notifying all persons having claims or demands against such 
 estate to exhibit the same, together with the evidence in sup- 
 port thereof, before the county court of the proper county, 
 within six months after the date of such notice or that the same 
 will be forever barred ;' and if no such claim is presented for 
 
 ' See ante, § 237. 
 
 'For form of notice see Form No. 22. 
 
CH. XXII.] REVOCATION OF LETTEES. 127 
 
 payment or distribution within the said time of six months, 
 such balance shall be paid into the treasury of said county ; 
 and the county shall be answerable for the same, without inter- 
 est, to such persons as shall thereafter appear to be legally en- 
 titled, on order of the county court, to the same, if any such 
 shall ever appear," (For another provision of similar character 
 applicable to other administrators, see post, § 554.) 
 
 § 252. Section 50 provides that, " Upon the death of 
 any person intestate, not leaving a widow or next of kin, or 
 creditor, within this state, the public administrator of the 
 county wherein such person may have died, or when the de- 
 cedent is a non-resident, the public administrator of the county 
 wherein the goods and chattels, rights and credits of such de- 
 cedent shall be, may take such measures as he may deem 
 proper to protect and secure the effects of such intestate from 
 waste or embezzlement, until administration thereon is granted 
 to the person entitled thereto ; the expenses whereof shall be 
 paid to such public administrator, upon the allowance of the 
 county court, in preference to all demands against such estate, 
 funeral expenses excepted." 8 
 
 CHAPTBE XXII. 
 
 OF REVOCATION OJP LETTERS AND REQUIRING NEW 
 BONDS. 
 
 i 253. Letters to be revoked when granted upon false or fraudulent pre- 
 tense. Administrator to pay the costs. 
 
 254 Letters to be revoked if will afterwards found. But acts done in 
 the meantime are valid. Limitation of two years applies to all 
 such. 
 
 255. Letters to be revoked where will or codicil is set aside, or the per- 
 sonal representative becomes insane, an habitual drunkard, con- 
 victed of infamous crime, or wastes or mismanages the estate so 
 as to endanger securities, etc. Reason to be stated on the record. 
 
 •See ante, §230. 
 
128 CAUSES. [CH. XXII. 
 
 § 256. Other misconduct specified which is a cause of revocation. 
 
 257. If personal representative removes property from the state, his 
 
 letters may he revoked. 
 
 258. Practice in case of revocation. 
 
 259. Increased security may be required, and failure to give it a cause of 
 
 revocation. 
 
 260. When sureties conceive themselves in danger of suffering — the 
 
 duty of the court — when letters may be revoked 
 
 261. New bonds, their form. 
 
 262. Where two new bonds were taken — effect. 
 
 263. When surety desires to be released — proceedings — when letters re- 
 
 voked. 
 264. When a sole personal representative dies without having fully ad- 
 ministered the estate, letters with will annexed may be granted. 
 
 265. Where the letters of one of several personal representatives are re- 
 
 voked or he dies or becomes disqualified — vacancy may be filled 
 and bond required of the new administrator, etc. 
 
 266. Where letters are revoked — liability on bond. 
 
 267. Administrator de bonis -non may call on removed administrator to 
 
 account. Cases stated. 
 
 268. Resignation of the personal representative. Proceedings. 
 
 269. Acceptance of resignation amounts to a revocation of letters. 
 
 270. Liability of personal representatives for the acts of each other. 
 
 § 253. It is the duty of the court to revoke letters of admin- 
 istration in all cases where they were granted to any person 
 upon the false and fraudulent pretense of being a creditor of 
 the estate upon which administration is granted, or upon any 
 other false pretense whatever f and upon revoking such letters 
 to adjudge the costs of suit against the administrator. 2 (For 
 form of petition, see Form No. 23. Form of clerk's entry, see 
 Form No. 31.) _ 
 
 § 254. If at any time after letters of administration have 
 "been granted, a will of the deceased shall be produced and pro- 
 bate thereof granted, such letters of administration shall be 
 revoked. 3 But it is the received doctrine, that all acts done, 
 
 1 Stat. Tit. Admin. § 26. An illegitimate son of the intestate does not 
 stand in a position to apply for revocation, he not having a right to admin- 
 ister upon the estate. Myatt v. Myatt, 44 111. 473. 
 
 2 lb. § 27. 
 
 8 lb. § 28. See Shepard v. Rhodes, in Sup. Court of Illinois, 1872, 4 Leg. 
 News, 453, where letters of administration were held to be valid till re- 
 voked. 
 
CH. XXII.] BEVOCATION OF LETTEES. 129 
 
 either by administrators before notice of a will, or by execu- 
 tors or administrators, who may be removed or superseded, or 
 become incapable, shall remain valid, and not be impeached on 
 any will appearing, or by any subsequent revocation. 4 And 
 the limitation of two years in the 70th section runs against 
 creditors in such cases from the date of the letters." 
 
 § 255. In all cases where a will or codicil has been proved 
 and letters granted thereon, and the same shall be set aside, such 
 letters shall be revoked." And the court may revoke letters 
 testamentary, or of administration, granted to persons who be- 
 come insane, lunatic or of unsound mind, habitual drunkards, 
 are convicted of infamous crimes, waste or mismanage the 
 estate, or who conduct themselves in such manner as to endan- 
 ger their co-executors, co-administrators or securities ; in which 
 cases the court shall summon the person charged to be so in 
 default or disqualified, to show cause why his letters should 
 not be revoked. When revocation is made, the reason therefor 
 shall be stated at large on the record.' 
 
 § 256. The refusal of an administrator to perform the du- 
 ties of his trust, is a sufficient cause for revoking his authority. 8 
 So is an unauthorized preference by him in the payment of de- 
 mands against the estate. 
 
 § 257. An executor or administrator is prohibited from re- 
 moving, without the order of the court, any property where- 
 with he is charged, by virtue of his letters, beyond the limits 
 of this state. And in case he does remove such property with- 
 out such order, the court must, on notice, forthwith revoke his 
 letters and appoint a successor, and cause a suit to be instituted on 
 his bond, against him and his security, for the use of the person 
 interested in the estate ; and if it appears, upon the trial of 
 
 4 2 Kent Com. 413. Wight v. "Wallbaum, 39 111. 554. 
 1 Shepard v. Rhodes, supra. 
 6 Stat. Tit. Admin. §29. 
 
 ' Ibid. § 30. As to what are infamous crimes see ante, § 230. See Form 
 No. 24. For Clerk's Entry, see Form No. 32. 
 8 Marsh v. People, 15 111.284. 
 "Foltzv. Prouse, 17111. 487. 
 9 
 
130 CAUSES — PRACTICE. [CH. XXII. 
 
 such cause, that the executor or administrator has so removed 
 such property, judgment must be rendered against the offender 
 and h^s securities for the full value thereof,, and for such other 
 damages as the parties interested may have sustained hy reason 
 thereof. 10 
 
 § 258. In all cases where the revocation of letters to an ad- 
 ministrator or an executor is sought, the better practice would 
 be for the court to require a petition under oath, or an affidavit, 
 alleging the causes, for revocation, to be filed with the clerk, 
 and to cause a citation or summons to be issued to the admin- 
 istrator or executor, to show cause why the letters issued to him 
 should not be revoked ; and upon his appearing or failing to 
 appear, to hear proof in support of the allegations in the peti- 
 tion; and if the court should order the letters revoked, the 
 reason therefor should be stated at large upon the record. (See 
 Forms No. 31, 32.) 
 
 § 258a. When it comes to the knowledge of the county 
 court, by affidavit or otherwise, that any executor or adminis- 
 trator of an estate is about to remove or has removed beyond 
 the limits of this state, it is the duty of such court to cause a 
 notice to be published in some newspaper in the county where 
 his letters were granted, for four successive weeks ; and if no 
 newspaper is published in such county, then by posting up a 
 notice at the court house door, notifying such executor or ad- 
 ministrator to appear before the court within thirty days after 
 the date of such notice, and make a settlement of his accounts 
 as required by law. If he neglects or refuses to make such 
 settlement, it is the duty of the court to remove him from office." 
 
 § 259. When insufficient security has been taken upon the 
 bond from an executor or administrator, at the time letters were 
 granted to him ; or when any security heretofore taken becomes 
 insufficient, the court may, upon the application of any person 
 entitled to distribution, or otherwise interested in such estate," 
 require such executor or administrator to give other and sui- 
 
 10 Stat. Tit. Admin. § 86. 
 
 11 Stat. Tit. Admin, § 31. Form of Affidavit and Notice Nos. 25, 25J£. 
 "Form No. 26. And see Form of Clerk's Entiy No. 33. 
 
CII. XXII.] EEVOCATIOJS T OF LETTERS. 131 
 
 ficient security ; and in default thereof the letters issued to 
 such executor or administrator, shall be revoked, and adminis- 
 tration de bonis non granted ; but all acts done according to law 
 by the executor or administrator so removed prior to such revo- 
 cation, shall be valid. 13 
 
 § 260. When a surety for an executor or administrator or 
 Lis representatives may conceive himself or themselves in danger 
 of suffering by the mismanagement of such executor or adminis- 
 trator, and shall petition the county court for relief, in writing, 
 setting forth the cause of such apprehension, the said court shall 
 examine such petition, and if the court shall deem the causes 
 therein set forth sufficient to entitle the petitioner or petitioners 
 to relief, if true, he shall summon such executor or administrator 
 to show cause against such petition, and may dismiss the same, 
 or direct such executor or administrator either to give good 
 counter security to save such petitioner or petitioners harmless, 
 or to give a new bond in the like penalty as the first ; and upon 
 refusal or neglect to give such counter security, or new bond, 
 the letters granted to him may be revoked. 11 (Form of Peti- 
 tion No. 27.) 
 
 § 261. When a new bond is required to be given by an ex- 
 ecutor or administrator under either of the preceding sections, 
 the formal part of the bond shall be as heretofore prescribed, 
 with a condition thereto, substantially in the following form, 
 to wit. (See Form No. 28.) Which bond shall be signed, 
 sealed, approved, attested and filed in the same manner as other 
 executor's or administrator's bonds are, and shall have relation 
 back to the time of granting letters testamentary or of admin- 
 istration. 16 
 
 § 262. Sections thirty-three and thirty-four of the statute 
 are the same in substance as sections seventy-nine and eighty of 
 the law of 1845, under which, in The People v. Lott, 27 111. 215, 
 the court held, that taking two new bonds from the administra- 
 tor, the penalty of which being added together, equalled in 
 
 13 Stat. Tit. Admin. § 32 : See Wight v. "Wallbaum, 39 111. 554. See Peo- 
 pie v. Curry, 59 111. 35. 
 " Stat. Tit. Admin. § 33. 
 16 lb. § 34. See Pinkstaff v. People, 59 111. 148. 
 
132 NEW BONDS. L CH - xxu - 
 
 amount the penalty in the old bond, was a substantial com- 
 pliance with the statute, which requires that the new bond shall 
 be in the like penalty as the first ; and that a new bond given 
 by an executor or administrator under these sections, releases 
 the sureties upon the first bond from all liability from past as 
 well as subsequent acts ; but, if, instead of a new bond being 
 given, the letters should be revoked, the sureties would only 
 be released from future liabilities. 
 
 § 263. "When a surety on the bond of an executor or ad- 
 ministrator desires to be released from further liability upon 
 such, bond, he may petition the court in which the same is 
 filed, for that purpose,"' and upon notice being given to the exe- 
 cutor or administrator., as the court may direct, the court shall 
 compel such executor or administrator, within a reasonable time, 
 to be fixed by the court, to settle and adjust his accounts, and 
 pay over whatever balance may be found in his hands, and file 
 in such court a new bond, in such penalty and with such secu- 
 rity as may be approved by the court, and thereupon the surety 
 so petitioning may be discharged from all liability upon his 
 bond" But if such executor or administrator shall fail to com- 
 ply with such order within the time fixed by the court, the 
 court shall order him removed from his office, and shall appoint 
 some other fit person as administrator, with will annexed, or de 
 bonis non, who shall give a bond as required bylaw. And in case 
 the former executor or administrator shall fail to settle his ac- 
 counts and to pay over to the person so appointed all moneys, 
 effects or choses in action in his hands by reason of his said of- 
 fice, then such successor shall collect the same by suit against 
 him, or by suit upon his bond ; and upon collection thereof 
 his surety shall be discharged. 18 And where the personal rep- 
 resentative fails to make a settlement of the estate when or- 
 dered by the court so to do, he may be dealt with as for con- 
 tempt, and be removed" 
 
 16 See Form No. 29. 
 " Stat. Tit. Admin. § 35. 
 18 Stat. Tit. Admin. § 36. 
 "lb. §114 See post, §544. 
 
CH. XXII.] LIABILITY OjST BONDS. 133 
 
 § 26-4. When a sole or surviving executor or administrator 
 dies without having fully administered the estate, if there is 
 personal property not administered,, or there are debts due from 
 the estate, or there is any thing remaining to be performed in 
 the execution of the will, the court shall grant letters of admin- 
 istration, with the will annexed, or otherwise, as the case may 
 require, to some suitable person, to administer the estate of the 
 deceased not already administered ; but when there is still a 
 surviving executor or administrator, he may administer the es- 
 tate, unless otherwise provided. 20 
 
 § 265. When the letters of one of the several executors or 
 administrators are revoked, or one or more of the executors 
 shall die or become disqualified, the court may fill the vacancy, 
 caused thereby, and require additional bonds from the new ad- 
 ministrator or administrators ; or the survivor or survivors, or 
 such as shall not have their powers revoked, shall manage the 
 estate. When the letters of all of them are revoked, or all of 
 such executors or administrators die before final settlement and 
 distribution of the estate, administration, With the will annex- 
 ed, or de bonis non, shall be granted to the persons next entitled 
 thereto. 21 
 
 § 266. In all cases where an executor or administrator shall 
 have his letters revoked, he shall be liable on his bond to the 
 administrator appointed in his place, or to any other person ag- 
 grieved, for any mismanagement of the estate committed to his 
 care ; and the subsequent administrator may have and maintain 
 actions against such former executor or administrator for all 
 such goods, chattels, and credits as shall have come to his pos- 
 session, and which are withheld or have been wasted, embez- 
 zled or misapplied, and no satisfaction made for the same. 22 
 
 § 267. An administrator de bonis non, appointed to succeed 
 an administrator whose letters have been revoked, 23 or any 
 
 20 Stat. Tit. Admin. § 37. 
 
 81 Stat. Tit, Admin. § 38. The persons next entitled are specified, ante, 
 §§ 237, 239. 
 
 22 Stat. Tit. Admin. § 39. 
 
 23 The acceptance by the probate court of the resignation of an adminis- 
 trator, amounts to a revocation of his letters. Marsh v. People, 15 111. 284 
 
134 RESIGNATION. [CH. XSII. 
 
 other person aggrieved, has authority to call upon the removed 
 administrator to account fully for his administration of the 
 estate ; and, may maintain al^necessary actions for the purpose, 
 and may moreover make him answer in damages, for any mal- 
 administration of the estate. 24 But the representative of a 
 deceased administrator cannot be called upon by an adminis- 
 trator de bonis non to account for assets already administered 
 by such deceased administrator ; but this may be done by heirs 
 and distributees." In such case the power of the administrator 
 de bonis non extends only to the recovery of such goods and 
 chattels of the inttestate as remain unadministered in specie, 
 and to debts due the intestate which remain unpaid. His 
 authority does not extend to assets already administered. 26 
 
 § 268. The statute, title Administration, § 40, provides that, 
 an executor or administrator may, upon his petition and upon 
 giving such notice to the legatees, devisees or distributees as 
 the court shall direct, be allowed to resign his trust when it 
 appears to the court to be proper ; and upon such resignation 
 the court shall grant letters of administration with the will 
 annexed, or de bonis non, to some suitable person, to administer 
 the goods and estate not already administered. But he cannot 
 be discharged till he has made full settlement with the court 
 and complied with its orders, and delivered over to his suc- 
 cessor all money, chattels and effects of the estate in his hands, 
 not paid over according to the orders of the court. And sec- 
 tion 41 provides that, he shall pay all costs of the proceeding, 
 and that the court shall render a judgment against him for 
 such costs, and that they may be collected by execution, as in 
 other cases. 27 
 
 § 269. The acceptance by the court of the resignation of an 
 
 54 Ibid. Duffin v. Abbott, 48 111. 17 — the latter ease overruling Stose v. 
 Stose, 25 111. 600 and Short v. Johnson, lb. 489. In the first case there was 
 a revocation of the letters, and in the other a resignation which was ac- 
 cepted by the court. 
 
 25 Rowan v. Kirkpatrick, 14 111. 1 ; Newhall v. Turney, 14 111. 338 ; Marsh 
 v. People, supra ; Duffin v. Abbott, supia. 
 
 "Ibid. 
 
 ! ' Form of Notice and Petition to Resign, 30. 
 
CH. XXIII.] INVENTORY. 135 
 
 administrator, amounts to a revocation of his letters ; and if 
 there are other administrators the burden of administration 
 falls upon them." 
 
 § 270. One of the several administrators is liable for the 
 acts done by either while they all continue in office ; but this 
 liability ceases to attach to such of them as are removed from 
 office, for all acts done after the removal. 29 
 
 CHAPTBE XXIII. 
 
 OP THE INVENTORY. 
 
 ; 271. Duties of executors and administrators are similar after the grant 
 of letters. 
 
 272. Duty to make and file an inventory, — what it shall contain. 
 
 273. Additional inventory, when required. 
 
 274 When growing crops may he inventoried and sold. 
 
 275. Extent of liability of the personal representative. 
 
 276. Inventories and bills of appraisement and authenticated copies as 
 
 evidence. 
 
 277. Inventory of effects prima facie evidence of personal representa- 
 
 tive's liability. 
 
 278. Classification of credits into " good, doubtful or desperate," — pre- 
 
 sumption if not so classed. 
 27ba. When appointment of a debtor as executor amounts to a release 
 of the debt. 
 
 279. Interest of a deceased partner in partnership effects — how invento- 
 
 ried. 
 
 280. Property deposited in the hands of a third party, and demands 
 
 assigned to secure payment of debts, and property fraudulently 
 conveyed by deceased, as against creditors, must be inventoried. 
 
 281. The distinction between personal and real property, and the duty 
 
 of the administrator in case of fraudulent sale considered. 
 
 282. Money due the deceased on a contract for the sale of land, consid- 
 
 ered personal estate. 
 
 283. Real estate to be inventoried. 
 
 28 Marsh v. The People, 15 111. 284; Stat. § 37. 
 "Ibid. 
 
136 INVENTORY. [CH. XXIII. 
 
 § 284. Freeholds to be inventoried as real estate, estates for years as per- 
 sonal estate. 
 
 285. The interest of a mortgagee is personal estate, so is the interest of 
 
 mortgagor in a surplus remaining after the sale under a power 
 of sale in the mortgagee's hands. 
 
 286. Growing fruit until severed is part of the realty, so all fruit trees 
 
 and other shrubbery, unless sold and conveyed. 
 
 287. Emblements regarded as personalty. 
 
 288. The right to enter, cultivate and take them away. 
 
 289. Effect of a conveyance of land on growing crops. 
 
 290. The case of Powell v. Rich, and other cases cited. 
 
 292. Rent, whether it goes to the heir or the administrator. 
 
 293. "Where land is let upon shares for a single crop or otherwise — 
 
 cases stated. 
 294 When rent is due. 
 
 295. Care to be observed in preparing the inventory. 
 
 296. Actions of contract which survive — contract of marriage does not. 
 
 297. "What covenants in a conveyance may be sued on by the personal 
 
 representative. 
 
 298. Of fixtures. 
 
 299-302. General principles. 
 
 303. Particular instances. 
 
 304. Fixtures erected for manufacturing purposes — fixtures for mining 
 
 purposes. 
 
 305. The case of Mason v. Fenn, 
 
 306. Distinction between landlords and mortgagees. 
 
 307. Rails in fences and those accidentally detached. Their severance 
 
 by valid contract. 
 
 308. Fixtures erected by persons under a contract for conveyance, held 
 
 to be realty. 
 
 309. Annuities, how regarded. 
 
 310. 311. Shares in corporations and the interest in literary property 
 
 are personalty. 
 312. Damages allowed for lands taken for public purposes, when they 
 belong to the heir and when to the personal representative. 
 
 § 271. From the time that letters testamentary or of admin- 
 istration have been accepted, the duties of executors and of 
 administrators are so nearly alike that they will hereafter be 
 treated of together, though distinctions between those duties 
 will be pointed out from time to time, when necessary to a 
 clear understanding of the same. 
 
 § 272. The first step to be taken by both executors and 
 administrators is to prepare and file an inventory of tb<* real 
 
CH. XXIII.] INVENTORY. 13.7 
 
 and personal estate of the deceased, and the statute, title Ad- 
 ministration, § 51, has specified what the inventory shall con- 
 tain. It directs that, "Whenever letters testamentary or of 
 administration, or of collection, are granted, the executor or 
 administrator shall make out a full and perfect inventory of 
 all such real and personal estate, or the proceeds thereof, as 
 are committed to his superintendence and management, and as 
 shall come to his hands, possession or knowledge, describing 
 the quantity, situation and title of the real estate, and particu- 
 larly specifying the nature and amount of all annuities, rents, 
 goods, chattels, rights and credits, and moneys on hand, and 
 whether the credits are good, doubtful or desperate ; which 
 said inventory shall be returned to the office of the clerk of 
 the county court, within three months from the date of letters 
 testamentary or of administration." (See Form No. 34.) 
 
 § 273. And section 52 provides that, " If after making the 
 first inventory, any other real or personal estate of the deceased 
 comes to his possession or knowledge, he shall file a similar ad- 
 ditional inventory thereof." 
 
 § 274 And section 94 provides that, if the executor or ad- 
 ministrator is of opinion that it would be of advantage to the 
 estate to dispose of the crop growing, and not devised, 1 the same 
 shall be inventoried, appraised and sold like other personal 
 property ; but if the executor or administrator believes it 
 would be of more advantage to the estate, he may cultivate 
 such crop to maturity, and the proceeds of such crop, after de- 
 ducting all necessary expenses for cultivating, gathering and 
 making sale of the same, shall be assets in his hands, and sub- 
 ject to the payment of debts and legacies, and to distribution 
 as in other cases. 
 
 § 275. By section 58, executors and administrators are 
 chargeable with so much of the real and personal estate of the 
 decedent, as they, after due and proper diligence, do or might 
 receive.* 
 
 § 276. Section 56 provides that, " Inventories and bills of 
 
 1 "Where land is devised, growing crops go to the devisee. Creel v. Kirk- 
 ham, 47 111. 344. 
 
 * See Governor v. Woodworth, 63 111. 254. 
 
138 INVENTORY — CREDITS. [OH. XXIII. 
 
 appraisement and authenticated copies thereof may be given in 
 evidence in any suit by or against the executor or administra- 
 tor, but shall not be conclusive for or against him, if any other 
 testimony be given that the estate was really worth, or was 
 bona fide sold for more or less than the appraised value thereof." 
 
 § 277. The inventory of effects of the deceased is prima 
 facie evidence of what came to the hands of the executor or 
 administrator, and will impose upon him the burden of show- 
 ing how he has disposed of the same. 2 
 
 § 278. We have seen that the statute requires the executor 
 or administrator to state in the inventory of credits, whether 
 each of them is good, doubtful or desperate. 3 And it has been 
 held that debts inventoried without comment will be presumed 
 collectible, and the party charged with the amount, unless 
 upon proof of loss without fault. 4 But it has been intimated 
 that further proof may be required to charge the executor or 
 administrator with the collections of debts due the estate. 6 
 And if they are inventoried as desperate or doubtful, the ad- 
 ministrator will not be charged with the amount, except upon 
 proof that he did or might have collected them.' 
 
 § 278 a. As to when the appointment of a debtor as exec- 
 utor of a will amounts to a release of the debt and when not, 
 see ante, § 110 a. 
 
 § 279. The interest of a deceased partner in the partnership 
 can only be inventoried as an unascertained balance.' The 
 surviving partner, as we shall presently see, 8 is required to 
 make an inventory of all the estate of the partnership, and a 
 list of the liabilities thereof, and also cause the estate to be ap- 
 praised in like manner as the individual property of deceased 
 
 5 Giles v. Dyson, 1 Stark. N. P. 32. 
 "Ante, § 272. 
 
 4 Graham v. Davidson, 2 Dev. &Batt.Ch. 155; Shelley's Case.l Salk. 296; 
 Smith v. Davis, Bull. N. P. 140. 
 B Giles v. Dyson, supra. 
 
 " Rowan v. Kirkpatrick, 14 111. 1 ; Finch v. Ragland, 2 Dev. Ch. 137. 
 1 Thompson v. Thompson, 1 Bradf. Sur. Rep. 24. 
 * §§ 343, 345. 
 
OH. XXIII. INVENTORY. 139 
 
 persons. He is also required to return such inventory and ap- 
 praisement, within sixty days after the death of the partner, to 
 the county court of the county in which the deceased resided, 
 or carried on the partnership business at the time of his death. 
 And in case the deceased was a non-resident, the inventory 
 must be made to the county court granting letters of adminis- 
 tration. 
 
 § 280. The personal representative should inventory prop- 
 erty deposited in the hands of a third party merely for custody, 
 and also demands assigned to secure the payment of debts. 10 
 And he should inventory property fraudulently conveyed by 
 the deceased, as against creditors. He so far represents the in- 
 terests of the creditors, that he may take possession of estate 
 so circumstanced, and retain the possession of the same, as 
 against the fraudulent grantee, until it can be shown if it will 
 be required for the payment of debts." 
 
 § 281. But this must be considered as applying to personal 
 property only. For the personal representative cannot, for the 
 benefit of the creditors of the estate, impeach a voluntary con- 
 veyance made by the deceased to defraud his creditors." 
 Where the deceased had purchased land with his own funds 
 and had it conveyed in the name of his child, with the fraudu- 
 lent design of preventing his creditors from collecting their 
 debts, and a creditor proved and had his claim allowed in the 
 probate court, it was held, that he might in the absence of per- 
 sonal estate sufficient to pay the judgment, proceed by bill in 
 equity against the child and the personal representative of the 
 deceased, to subject the land in question to the payment of his 
 judgment. 13 
 
 § 282. Money due a testator at his decease, upon a contract 
 
 8 Potter v. Titcomb, 1 Pairf. 53. 
 
 10 "Williams v. Moorehouse, 9 Conn. 470. 
 
 11 Minor v. Mead, 3 Conn. 289 ; Booth v. Patrick, 8 Conn. 106 ; Andrus v. 
 Doolittle, 11 Conn. 283. But see Martin v. Martin, 1 Vt. 91 ; Peaslee v. 
 Barney, 1 Chip. 331 ; Moody v. Pry, 3 Humph. 567. 
 
 18 Choteau v. Jones, 11 111. 300, and cases cited. 
 
 13 McDowell v. Cochran, 11 111. 31. But the personal representative is a 
 necessary party. lb. 
 
140 . WHAT IT MUST CONTAIN. [CH. XXIII. 
 
 for the sale of real estate, made by him, no deed having been 
 executed, is to be considered a part of his personal estate, the 
 same as other debts due the estate." 
 
 § 283. Whilst real estate goes in general to the heir and is 
 in nowise subject to the control of an administrator, or of an 
 executor, unless such control is given by the will, nevertheless, 
 when the personal estate is insufficient to pay the debts, the 
 land may be subjected to sale for their payment. 16 For this 
 reason, and perhaps for the general convenience of all parties 
 interested, as heirs, devisees, legatees and creditors, the statute 
 requires the inventory to set forth the quantity, situation and 
 title of the land. 
 
 § 284. But there are certain interests arising out of land 
 which are not considered as real estate, but are treated in mat- 
 ters of administration as personal property, and go to the exec- 
 utor or administrator. They are denominated chattels real, 
 and include all estates for years, however long the period of 
 duration. These should be inventoried and sold like other 
 personal property. But all estates for life or for an uncertain 
 period which may endure for life, as, during widowhood, or so 
 long as one shall remain unmarried, or during coverture, or as 
 long as the grantee shall dwell in a particular place, are re- 
 garded as estates of freehold, and go to the heir." These, of 
 course, must be inventoried and treated as real estate." 
 
 § 285. The interest of a mortgagee is treated as mere per- 
 sonalty, and goes to the administrator. 18 It is a mere debt com- 
 ing to the estate, and should be inventoried as such, accompa- 
 nied with a proper description of the land, etc. "Where a mort- 
 gage contains, a power of sale, and by means of the sale of 
 
 14 Skinner v. Newberry, 51 111. 203, and cases cited. 
 
 16 An administrator takes no estate, right, title or interest in realty. He 
 takes only a power. Smith v. McConnell, 17 111. 135. See, especially, post, 
 §§ 434, 435. 
 
 16 1 Wms. Ex'rs, 592; Co. Litt. 42 a. 
 
 " But either of these may be subject to homestead rights. See statute, 
 Tit. Homestead Exemption, § 1 ; also Tit. Dower. 
 
 18 1 Wms. Ex'rs, 608. Scott v. Moore, 3 Scam. 306. 
 
CH. XXIII.] INVENTORY. 141 
 
 the whole estate a surplus of money is produced above what 
 is required to satisfy the mortgage — if this is done during the 
 life of the mortgagor it will thereby become personal estate to 
 all intents, and go to the administrator. But if the sale takes 
 place after the death of the mortgagor, it will still be regarded 
 as real estate, since an equity of redemption is always so re- 
 garded, and as such, primarily goes to the heir." 
 
 § 286. Growing fruit upon land, until it is severed, is regarded 
 as part of the realty, 20 and goes to the heir. 21 So are fruit and 
 other growing trees and ornamental shrubbery. But all of 
 these may be sold by the proprietor, and conveyed by proper 
 conveyance in writing, when, in contemplation of law, they be- 
 come severed from the land and become personalty, and go to 
 the executor or administrator. 22 
 
 § 287. That species of estate in growing crops which are 
 denominated emblements, where the estate determines without 
 the fault of the tenant, as by the act of God, or of the law, 
 and not by the voluntary and willful act of the tenant, is 
 regarded as mere personalty, and goes to the executor or 
 administrator of the tenant. The term emblements includes 
 only such crops as are the result of special labor and cultiva- 
 tion, and which commonly repay such labor within the year, 
 such as grain of all kinds, as well as the products of the 
 garden, and other root crops. It also includes hops, which 
 though not planted annually, require cultivation each year. 
 But this does not include fruit trees ; though in the case" of 
 nurserymen, who plant and cultivate trees for sale, their 
 executors may remove them from the land as personalty. 28 
 
 19 Wright v.Bose, 2 Sim. & Stu. 323; Bourne v. Bourne, 2 Hare, 35; Bo- 
 gert v. Purman, 10 Paige, 496 ; Moses v. Murgatroyd, 1 John. Ch. 119 ; Cox 
 v. McBurney, 2 Sandf. Sup. Ct. 561. 
 
 30 Rodwell v. Phillips, 9 M. & W. 501. 
 
 81 3 Bedf. Wills. § 21, pi. 4 (1 a), and oases cited. 
 
 n Stukely v. Butler, Hob. 168 ; Herlakenden's Case, 4 Coke, 02 a ; Adams 
 v. Smith, Brecse, 283 ; Smith v. Price, 39 111. 28 ; Greenwood v. Spiller, 2 
 Scam. 503. See also post, § 290. 
 
 '"Perton v. Eobart, 2 East, 88; 5 B. & Adol. 52; 3 Redf. Wills. § 21, 
 pi. 4 (1 a.); 1 Wash. E. P. ch. 5; Debow v. Colfax, 5 Halst. 128; Gee v. 
 
142 CHOPS, KAILS, ETC. [CH. XXIII. 
 
 § 288. When there is a right to emblements the law gives 
 the owner the right to enter upon and occupy the land for the 
 purpose of cultivating, saving and carrying them away." This, 
 however, is not a right of exclusive possession, but only for 
 the purposes above mentioned." 5 
 
 § 289. A conveyance of land will pass all the vendor's in- 
 terest in the growing crops, unless they are reserved in writing. " 
 So also where land is devised, they will go to the devisee," un- 
 less the will expressly or by fair implication otherwise disposes 
 of them. 28 They may also be bequeathed to one, and the land 
 devised to another. 59 
 
 § 290. In Powell v. Rich, 41 111. 466, which was a contro- 
 versy as to whether growing corn could be excepted from the 
 conveyance, by a parol reservation made at the same time, the 
 court held that it could not. And Walker, C. J., in delivering 
 the opinion of the court (p. 469), says, " As between landlord 
 and tenant, between debtor and creditor, and under our statute 
 as between executor and heir, growing crops are personal prop- 
 erty. But between trespasser and owner of the soil, and ven- 
 dor and vendee, they are real estate. * * * After crops 
 have been matured, however, it is otherwise. * * * And 
 to pass by a sale by the owner of the soil, it must be evidenced 
 by a written agreement." If the last propsition is intended to 
 declare that the owner of the soil cannot make a valid sale of 
 growing crops by parol, as the reporter in making his syllabus 
 evidently understood it, we may properly call attention to the 
 case of Bull v. Griswold, 19 111. 631, where it was held that 
 growing crops are personalty, and may be sold by parol. So 
 in Austin v. Sawyer, 9 Cowen, 39, where this question was di- 
 
 Gee, 2 Dev. & Batt. Ch. 103 ; Bevans v. Briscoe, 4 Har. & Johns. 139, 
 and see Smith v. Price, 39 111. 28. 
 
 M Forsythe v. Price, 8 Watts, 282. 
 
 55 Humphreys v. Humphreys, 3 Ired. 362. 
 
 86 Powell v. Bich, 41 111. 466. See Smith v. Price, 39 111. 28, and Bull v. 
 Griswold, 19 111. 631. 
 
 81 Creel v. Kirkham, 47 111. 344; Spencer's Case, 5 Winch. 51. 
 
 S8 See West v. Moore, 8 East, 339, and Dixon r. Niccolls, 39 111. 372. 
 
 a9 Cox v. Godslave, 6 East, 604. 
 
CH. XXJ.II. INTENTOET. 143 
 
 rectly before the court, it was held that the owner of the soil 
 could sell growing crops by parol, and the statute of frauds did 
 not apply to such a case. And in Whipple v. Foot, 2 Johns. 
 422, and Stewart v. Doughty, 9 Johns. 107, it was held that 
 crops growing upon leased land might be sold by the tenant by 
 parol contract. In Heed v. Johnson, 14 111. 258, which arose 
 before justices of the peace had jurisdiction of trespass upon 
 realty, it was held, that growing crops were personal estate, and 
 that a justice had jurisdiction in an action for taking and in- 
 juring growing corn. So in Graff v. Fdtch, 58 111. 373, it was 
 held that growing crops are a proper subject of sale as personal 
 property by parol, and such sales are valid as against the cred- 
 tors of the vendor. 30 
 
 § 292. Eent accruing out of land, upon a lease granted by 
 the owner in fee, and which does not become due till after the 
 death of the lessor, is a chattel real, and descends to the heir, as 
 part of the inheritance, and does not, go to the executor or ad- 
 ministrator. It is otherwise if the owner dies after the rent is 
 due. 81 If the lessor, makes an unqualified grant of leased land, 
 the rent passes to the grantee as an incident of the reversion. 
 But he may sever the rent from the reversion by reserving it in 
 writing. 32 
 
 § 293. If land is let upon shares, for a single crop only, it 
 does not amount to a lease, and the possession remains in the 
 owner. 33 The occupant however is a tenant in common with 
 the owner, of the growing crop, and he continues so until the 
 tenancy is severed by a division. 54 But if the contract, is that 
 the lessee shall possess the land with the usual privileges of en- 
 joyment, it is the creation of a tenancy for a year, though the 
 
 80 See ante, § 286. 
 
 31 Green v. Massie, 13 111. 363; Foltz v. Prouse, 17 111. 487; Sherman v. 
 Dutch, 16 111. 285 ; Dixon v. Niccolls, 39 111. 372. On the death of the les- 
 sor the rent not then due must be apportioned among the heirs by the 
 lessee. Treat, C. J., in Crosby v. Loop, 13 111. 625. 
 
 82 Crosby v. Loop, supra. 
 
 83 Bradish v. Scherfck, 8 Johns. 151. 
 
 M Walker v. Pitts, 24 Pick. 191; Alwood v. Ruckman, 21 111. 200. 
 
144 BENTS, CEOPS, ETC. CH XXIII. 
 
 land is taken to be cultivated on shares ; 3B and the parties are 
 not tenants in common of the crop raised ; but the tenant re- 
 mains the exclusive owner of such crop until the stipulated rent 
 is set off to the landlord. 30 "Whether the relation of landlord 
 and tenant exists between the owner of the soil and him who 
 plants the crop raised, depends upon the intention of the par- 
 ties. The right of exclusive possession by the tenant is, it 
 seems, generally conclusive in favor of the former relation. 37 
 
 § 294. Where the rent is payable on a particular day, it is 
 not due until the last minute of that day ; and if the lessor 
 dies before sunset, the heir, and not the executor, is entitled to 
 it. 38 In the case of Dixon v. Niccolls^ the tenant rented the 
 land for the year beginning March 1, 1864, and ending March 
 1, 1865, the rent to be one-third of the crops, payable in kind ; 
 the small grain rent (wheat, oats and barley), to be delivered 
 to the landlord in the half bushel at the threshing machine as 
 soon as threshed ; but thqre was no time fixed for the thresh- 
 ing to be done, and the tenant had exclusive possession. On 
 the first day of October, 1864, and befo re the small grain was 
 threshed, the landlord conveyed the premises, without reserva- 
 tion of crops or rent. Held, that the relation of landlord and 
 tenant existed ; that the tenant remains the exclusive owner of 
 the crop until the stipulated rent is set off to the landlord ; 
 that the parties were not tenants in common of the crop raised ; 
 that the rent was not due till March first, 1865, and that the 
 vendee of the premises was entitled to the same. 
 
 § 295. The personal representative should be careful in 
 preparing his inventory of rents, to specify the rent not due at 
 the date of the decease, along with the realty,, where it belongs ; 
 but if it was then due, it should be inventoried among the de- 
 
 35 Jackson v. Brownell, 1 Johns. 267 ; Alwood v. Euckman, supra, Dixon 
 v. Niccolls, 39 111. 372 ; 4 Kent, 95. 
 
 36 Dixon v. Niccolls ; Alwood v. Euckman, supra. Stewart v. Doughty 
 9 Johns. 107. 
 
 3 ' Dixon v. Niccolls ; Jackson v. Brownell, supra. 
 
 88 3 Bac. Abr. 33; 1 Saund. 287; 1 P. Wins. 177; Harg. Co. Litt. 202, n. 1. 
 
 38 39 111. 372. 
 
CH. XXIII.] inventoby. 145 
 
 mands due the estate. And if the deceased was to share in the 
 crops, and was a tenant in common thereof, along with him 
 who planted them, they may be properly specified, for ex- 
 ample, as an undivided third of twenty acres of wheat, raised 
 by A. on etc., and now growing, or in stack, according to the 
 facts. 
 
 § 296. At common law actions of contract, upon the death 
 of either party, survive to or against the personal representa- 
 tive of each.' 10 But an action for a breach of marriage contract 
 is not within the rule." 
 
 § 297. The covenants in a conveyance of land, that the 
 grantor is lawfully seized, that he has good right to convey, 
 and that the land is free from incumbrances, are personal cov- 
 enants, not running with the land or passing to the assignee ; 
 for if not true, there is a breach of them as soon as the deed is 
 delivered, and the right of action is perfect. Upon these, there- 
 fore, the personal representative of the grantee may sustain an 
 action." But those covenants which run with the land, as, that 
 the grantee shall quietly enjoy ; that the grantor will warrant 
 and defend against all lawful claims, and the like, are prospect- 
 ive, and until an actual ouster or eviction, there is no breach 
 of them. Hence, the personal representative, having no title 
 to or interest in the land, has no right of action upon these 
 covenants, not even for a breach in the lifetime of the grantee, 
 unless he can show some special damages to the personal estate 
 of the deceased." But for such breaches of real covenants as 
 occurred in the lifetime of the ancestor, but occasioned him no 
 actual damage, or after his death, the action should be brought 
 by the heir or devisee, who, in this respect, is invested with the 
 same rights as would have devolved upon the heir." 
 
 § 298. The personal representative will sometimes find it 
 
 40 1 Ch. PI. 68; 3 Bla. Com. 302. 
 
 41 Lattimore v. Simmons, 13 Serg. & R. 183 ; Stebbins v. Palmer, 1 Pick. 
 71; 1 Ch. PI. 20, 51. 
 
 42 4 Kent, 471; 1 Ch. PI. 19; Burnham v. Susselle, 35 Ind. 425. 
 
 43 4 Kent, 471; 1 Ch. PI. 19. 
 44 1 Ch. PI. 21. 
 
 10 
 
146 FIXTURES. [CH. XXIII. 
 
 difficult to determine whether certain other kinds of property 
 belong to the realty and go with it to the heir or devisee, or are 
 personal estate and are to be inventoried as such, and sold. 
 These questions will arise not only with respect to the inven- 
 tory, but whether he or the heir shall bring suit for injuries 
 done to such property. And this brings us to the law of 
 "Fixtures." 
 
 § 299. It may be stated as a general proposition of law, 
 that every thing fixed to land, either immediately, as a house, 
 or mediately, as a window in a house, belongs to the proprietor 
 of the land. And this rule prevails where one man builds a 
 house on the land of another, or fixes the chattels belonging 
 to another in his house. But a man may have occasion to fix 
 to the land of another a chattel belonging to himself, and yet 
 not be willing to part with his property in the chattel. Thus, 
 where a house is let by the owner to another for a term, it may 
 be necessary for the tenant, in order to the comfortable or con- 
 venient occupation of such house, to fix therein articles of his 
 own. In this case the general rule is modified ; and a party 
 who under such circumstances, makes annexations to the land 
 of another, is allowed to remove the things so annexed, at any 
 time during the tenancy. Things thus annexed to the land, 
 and removable,, are denominated fixtures. And although 
 during the period of their annexation, they are considered as a 
 portion of the land, the party fixing them is allowed to reduce 
 them again to a chattel state. 
 
 § 300. Fixtures of the kind just mentioned are sometimes 
 divided into two classes : First. Those articles which a tenant 
 fixes for the purpose of his trade. Second. Those which he fixes 
 for his domestic convenience, or the ornament of his house. In 
 order to ascertain whether, as between landlord and tenant, a 
 particular thing is or is not a fixture, inquiry must be made, 
 1st. If it is fixed to the land : 2d. If it is useful to the tenant 
 in his trade, or in the occupation of his house, or ornamental to 
 it ; and 3d. If it is capable of removal without doing any sub- 
 stantial injury to the house. As these are questions of fact, 
 
CH. XXIII.] fixtures. 147 
 
 eacli case must depend much upon its own particular circum- 
 stances. 
 
 § 301. Fixtures are things fixed to land. If not so fixed 
 they are chattels, and cannot under any circumstances, be con- 
 sidered as a part of the freehold. They must be fixed in or to 
 the ground, or to some substance which has already become a 
 portion of the freehold, in order to deprive them of their char- 
 acter of personal property. Unless this is done, they remain 
 chattels, and may be removed by the party who placed them 
 upon the premises. The mere laying and resting upon the 
 earth, without letting and imbedding into it buildings or erec- 
 tions of any description, will not make them fixtures. This 
 last proposition, though according to the common law of Eng- 
 land, may be the law of Illinois, as between landlord and ten- 
 ant ; but as between the heir and the personal representative, 
 or the vendor and purchaser, the case is different. The circum- 
 stances and customs of western people are such that this rule 
 would not apply. It would hardly do to say that, an adminis- 
 trator or a vendor could take from the freehold houses, sheds, 
 stables, corn-cribs and the like, because they were erected on 
 foundations merely resting upon the ground. 
 
 § 302. It may be stated generally that, whatever the tenant, 
 for the purpose of trade, erects on or fixes to the premises leased, 
 he may take away at any time before the end of his term. In 
 regard to domestic fixtures, or those articles which a tenant 
 fixes in his house in order to render its occupation more com- 
 fortable or convenient, the rule is, that furniture or pictures 
 even when slightly fixed to the walls or floors of a house, are 
 removable by the tenant before the expiration of his term. So, 
 too, furnaces, grates, stoves, cupboards, shelves, bells, carpets 
 nailed to the floor, blinds, curtains, in short, any article which 
 has been fixed to the house, by the tenant for his domestic use, 
 and which is capable of being removed without injury to the 
 house, may be removed by him. A tenant may, however, 
 
 45 Gibbons' Law of Fixtures ; Grady's Law of Fixtures. And see Fisher 
 v. Dixon, 12 CI. & Fin. 312. 
 
148 TO WHOM THEY BELONG. [CH. XXIII. 
 
 lose his right to remove fixtures, by leaving them on the prem- 
 ises, and he may waive it by agreement" 46 If he does not, 
 daring or at the expiration of his term, remove the fixtures 
 erected by him on the demised premises, he will be presumed 
 to have abandoned them ; but that presumption may be rebut- 
 ted by showing an agreement reserving to him the property in 
 them after the term has expired." 
 
 § 303. A building is prima facie real estate, and belongs to 
 the owner of the land on which it stands. But it may be per- 
 sonal estate where erected by the builder with his own means, 
 and for his exclusive use, in pursuance of an understanding be- 
 tween him and the owner of the inheritance. And also where 
 erected by a tenant on demised premises. At his death it 
 passes to his personal representatives." But if erected by one 
 not a tenant, and without any contract, it becomes a part of the 
 land, and cannot be removed by him who erected it. 48 
 
 § 304. The rule of law by which fixtures are held less 
 strictly, when erected for manufacturing purposes, has no ap- 
 plication to fixtures erected by the owner oE the land in fee. 
 Therefore, in such cases, all articles fixed to the freehold, 
 whether by screws, solder or other permanent means, or by be- 
 ing let into the soil, partake of the nature of the soil, and will 
 descend to the heir, or pass by conveyance or devise of the 
 land. 49 "Where the owner of the land in fee, for the purpose of 
 better enjoyment of the land, erected upon and affixed to the 
 freehold certain machinery, such as is in use in working coal 
 and iron mines, the purpose for which this was erected, it will 
 go to the heir as part of the real estate. 60 And when part of a 
 machine is a fixture, and another and essential part of it is 
 movable, and capable of being used in a detached state, the lat- 
 
 46 7 Ind. 30 ; see Mason v. Fenn, 13 111. 525 ; Ch. Cort. 362, and notes. 
 « Chatterton v. Saul, 16 111. 149; Goff v. O'Connor, 16 111. 421; Dooley 
 v. Crist, 25 111. 551. 
 
 48 Dooley v. Crist, supra; Wells v. Bannister, 4 Mass. 514; Washburn v. 
 Sproat, 16 Mass. 449. See Kelley v. Austin, 46 111. 46. 
 
 49 Mather v. Fraser, 2 Kay & Johns. 536 ; 3 Redf. Wills, § 22, pi. 12. 
 60 Fisher v. Dixon, 12 CI. & Fin. 312. 
 
CH. XXIII.] FIXTURES. 149 
 
 ter also will be considered a fixture. But machinery standing 
 merely by its own weight does not become a fixture." 
 
 § 305. In Mason v. Fenn, 13 111. 525, a new boiler, back- 
 stand and mud-valve were placed by the tenant in a steam 
 flouring mill in lieu of old and worthless ones which he re- 
 moved, and it was held that they were merely trade fixtures, 
 and might be removed by the tenant during the term. 62 
 
 § 306. Those things which are denominated trade fixtures 
 between landlord and tenant, and removable by the latter, are 
 considered realty as between mortgagor and mortgagee, and 
 cannot be removed by the former till the mortgage debt is 
 paid 63 And the removal of them by the mortgagee after the 
 mortgagor's death does not vest the property in his personal 
 representative. 64 
 
 § 307. Eails laid up in fences are a part of the realty, and 
 if accidentally or temporarily detached without any intent of 
 the owner to divert them from their use as part of the fence, 
 they do not lose that character. 65 So rails belonging to a fence, 
 or hauled on the premises with the intention of erecting a fence, 
 or timber for building, though not erected, but lying loose 
 around the land, and in no wise attached to the freehold, will 
 pass by deed. 66 But generally articles affixed to the land 
 
 61 The Met. Co. Society v. Brown, 26 Beav. 454; Fisher v. Dixon, supra; 
 Burnside v. Twitchell, 43 N. H. 390. 
 
 62 The court cites 2 Kent, 343, and Arch. L. and T. 365. 
 
 63 Walmsley v. Milne, 7 C. B. x. s. 115. 
 
 54 Butler v.Psge, 7 Met. 40. 
 
 55 Morgan v. Varick, 8 "Wend. 587. See Clark v. Burnside, 15 111. 62. 
 
 56 McLaughlin v. Johnson, 46 111. 163. This case it seems to us, goes too 
 far, or at least, states the rule too broadly. "While the authorities would 
 justify the conclusion that rails maybe taken from one fence and carried 
 to and distributed along another, on the same premises, for the purpose of 
 repairing it, or distributed along a line for the purpose of building another 
 fence of them on the same premises, and not lose their character of realty 
 while detached ; or that rails hauled upon the premises and distributed 
 along the line of an old fence for the purpose of repairing it, or upon a 
 new line for the purpose of erecting them into a new fence, become there- 
 by a part of the realty; yet unless so distributed, the latter could hardly 
 be treated as realty, and pass with the freehold. It seems to us there 
 
150 TEADE FIXTUBES. [CH. XXIII. 
 
 become personal property by severance. And such a severance 
 may be actual, or by a valid conveyance of the land reserving 
 them." Eails in stacks are personal property; 68 so also before 
 being distributed upon land. 59 Eails bailt into a fence by a 
 tenant under an agreement with his landlord that he may re- 
 move them at the end of the term, are personal property as be- 
 tween the landlord and tenant.™ 
 
 § 308. In Smith v. Moore, 26 111. 392, a purchaser of land 
 went into possession under an agreement for a conveyance, 
 and built a distillery on the premises and annexed thereto 
 copper, lead and brass pipes and other distillery fixtures ; these 
 were held to have become a part of the realty, and that he could 
 not remove them without the consent of the owner of the fee. 
 And Walker, J., says, " The exception in favor of trade fix- 
 tures is made because the annexations are supposed to be neces- 
 sary to the calling of the tenant, and not to the land. They 
 are made not with the design of being permanent, but of being 
 severed at the end of the term. Whilst with the purchaser, the 
 presumption is, that they are made with the design of their 
 permanent connection with the land, and as accessory to it. He 
 makes them in view of their being his when he shall have ac- 
 quired the absolute ownership of the land by conveyance. But 
 until that time, he has only the same right to them which he 
 has to the freehold. 61 
 
 § 309. An annuity, which is the grant of a sum of money 
 
 should be some act indicating an intention to fix them to the premises on 
 which they are situated. In the case of Clark v. Burnside, 15 111. 62, 
 "rails in stacks," were held to he personal property. In Robertson v. 
 Phillips, 3 Iowa, 220, rails before being distributed upon land, were held to 
 be personal property. And in Cook v. Whiting, 16 111. 480, fence posts on 
 the premises, but not attached to the soil, were held not to be fixtures, or 
 to pass by deed. 
 
 " , 1 Barb. 542 ; 1 Denio, 580. Mott v. Palmer, 1 Comst. 564. 
 
 See Mason v. Fenn, 13 111. 525. 
 
 68 Clark v. Burnside, 15 111. 62. 
 
 59 Robertson v. Philips, 3 Iowa, 220. 
 
 60 Mott v. Palmer, 1 Comst. 564. 
 
 61 This decision reverses that in Moore v. Smith, 24 111. 512. 
 
OH. XXIII.] FIXTURES — DAMAGES. lol 
 
 to be paid annually, and which may be for life, for a term of 
 years, or in perpetuity, is generally regarded as mere person- 
 alty, and, as such, will pass to the personal representative of 
 the annuitant, where it extends beyond his own life, unless 
 there is some express provision to the contrary. But if the 
 annuity is granted to the annuitant and his heirs, it will go to 
 such heirs, and not to the personal representative. And an 
 annuity, made a special charge or condition of the devise of 
 real estate, will create a legal rent-charge, and to that extent 
 becomes an interest in realty. M 
 
 § 310. Shares in all corporations, or what is commonly 
 denominated corporate stocks, are mere personalty. 63 
 
 § 311. * The interest in literary property and that in works 
 of art or in patent-rights, will, upon the decease of the original 
 proprietor, vest in the personal representative, and he may 
 obtain the renewal of the copyright, or of the patent. 64 
 
 § 312. Mr. Eedfield 86 remarks in reference to damages al- 
 lowed for lands taken for public purposes, " that, upon gen- 
 eral principles, after the descent cast upon the heirs by the 
 decease of the ancestor, any land damages thereafter assessed 
 for laying highways or railways, or for other public purposes, 
 must belong to the heir, as being in purchase of a right in the 
 realty." Upon the same principle, such damages assessed but 
 not paid, in the lifetime of the decaased, would go to his per- 
 sonal representative. 
 
 62 3Redf. Wills, §25 pi. 1,3. 
 
 63 lb. pi. 3. 
 
 64 1 Wms. Ex'rs, 730; "Wilson v. Rosseau, 4 How. U. S. 646. 
 
 65 3 Redf. Wills, § 25, pi. 18. 
 
152 APPRAISEKS AND THEIE DUTIES. [CH. XXIV. 
 
 CHAPTEE XXIY. 
 
 OF APPRAISERS AND THEIR DUTIES. 
 
 § 313. Their appointment — warrant — oath — duties. 
 
 314. Appraisement of subsequently discovered property. 
 
 315. Further duties. 
 
 316. Compensation of appraisers. 
 
 § 313. The statute, § 53, provides that, " On granting let- 
 ters testamentary or of administration, a warrant shall issue 
 lander the seal of the county court, authorizing three persons 
 of discretion, not related to the deceased nor interested in the 
 administration of the estate, to appraise the goods, chattels and 
 personal estate of the deceased, known to them or to be shown 
 by the executor or administrator ; which warrant shall be in 
 the following form. (See Form No. 35). And on the death, re- 
 fusal to act, or neglect of any such appraiser, another may be 
 appointed in his place." And section 54 provides, in sub- 
 stance, that, before proceeding to appraise the estate, the ap- 
 praisers shall take and subscribe an oath or affirmation, before 
 some officer authorized to administer oaths (see Form No. 36), 
 which shall be annexed to or indorsed on the warrant. And 
 thereupon they shall proceed, as soon as convenient, to the dis- 
 charge of their duty, and shall set down each article, with the 
 value thereof in dollars and cents. All the valuations must 
 be set down on the right hand side of the paper, in one or 
 more columns, in figures, opposite to the respective articles of 
 property, and the amount of each column set at the foot thereof. 
 By section 55 it is provided that, when the bill of appraisement 
 is completed, the appraisers shall certify the same under their 
 hands and seals, and deliver it to the executor or administrator, 
 and he is required to file it in the office of the clerk of the 
 county court, within three months from the date of his letters. 
 (See Form No. 37.) 
 
 § 314. Personal property coming to the possession or 
 
ch. sxv.] widow's award. 153 
 
 knowledge of the executor or administrator, and not included 
 in the first bill of appraisement, must be appraised, and return 
 made thereof to the office of the clerk of the county court, as in 
 case of .the first appraisment, within three months after dis- 
 covery of the same. 1 
 
 § 315. In certain cases where the decedent leaves a widow 
 or minor children, the appraisers are required to make out and 
 certify to the county court the value of each of the items of 
 property allowed to her under section 74 of the statute, or to 
 the children under section 77. 2 
 
 § 316. Appraisers are entitled to two dollars per day for 
 each day's necessary attendance in making appraisments, to be 
 allowed by the county court, and paid upon its order, by the 
 executor or administrator. 3 
 
 CHAPTEE XXV. 
 
 AWABD TO THE WIDOW OR CHILDREN.— WIDOW'S SELEC- 
 TION. 
 
 § 317. Appraisers to make out and certify the estimated value of items al- 
 lowed by law to the widow, and to the children in certain cases. 
 
 318. Items specified. 
 
 319. Estimate, how certified -- comments. 
 
 320. Appraisers may award the widow a certain gross sum in lieu of 
 
 items. 
 
 321. The word " family " as used in the statute defined. 
 
 322. Widows may take in lieu of the award, the property exempt from 
 
 execution etc. 
 
 323. Items of property exempt. 
 
 . 324 The effect of the repeal of the former statute. 
 325. Widow may elect whether she will take the specific articles set 
 apart to her or the amount thereof out of other personal prop, 
 crty. Administrator's duty in such cases. 
 
 1 Stat. Tit. Admin. § 57. 
 
 2 Hi. 75; and see sections 74 and 77 at length, post, §§ 318, 320, 327. 
 
 3 Stat. Tit. Admin. §59. 
 
154 STATUTORY PROVISIONS [CH. XXV. 
 
 326. Widow's right to her award not to be effected by renouncing or 
 
 failing to renounce the provisions of the will in her favor. 
 
 327. If personal property and assets are not equal to the award, they 
 
 are to be delivered to the widow, etc. Costs of administration to 
 be first paid. » 
 
 327a. Same subject. 
 
 § 317. By section 75 the appraisers are required to make 
 out and certify to the county court, an estimate of the value of 
 each of the several items of personal property allowed by law 
 to the widow. And by section 77 it is provided that, " When 
 the person dying is at the time of his death a housekeeper, the 
 head of a family, and leaves no widow, there shall be allowed 
 to the children of the deceased, residing with him at the time 
 of his death, including all males under eighteen years of age, 
 and all females, the same amount of property as is allowed to 
 the widow by this act." 
 
 § 318. The statute, title Administration, § 74, provides that, 
 " The widow, residing in this state, of a deceased husband whose 
 estate is administered in this state, whether her husband died 
 testate or intestate, shall, in all cases, in exclusion of debts, 
 claims, charges, legacies and bequests, except funeral expenses, 
 be allowed, as her sole and exclusive property forever, the fol- 
 lowing, to wit : 
 
 First. — The family pictures and wearing apparel, jewels and 
 ornaments of herself and her minor children. 
 
 Second. — School books and family library of the value of one 
 hundred dollars. 
 
 Third. — One sewing machine. 
 
 Fourth. — Necessary beds, bedsteads and bedding for herself 
 and family. 
 
 Fifth. — The stoves and pipe used in the family, with the 
 necessary cooking utensils ; or, in case they have none, fifty 
 dollars in money. 
 
 Sixth. — Household and kitchen furniture to the value of one 
 hundred dollars. 
 
 Seventh. — One milch cow and calf for every four members 
 of her family. 
 
OH. XXV.] WIDOW'S AWARD — FAMILY. 155 
 
 Eighth. — Two sheep for each member of her family, and the 
 fleeces taken from the same, and one horse, saddle and bridle. 
 
 Ninth. — Provisions for herself and family for one year. 
 
 Tenth. — Food for the stock above specified, for six months. 
 
 Eleventh. — Fuel for herself and family for three months. 
 
 Twelfth. — One hundred dollars' worth of other property 
 suited to' her condition in life, to be selected by the widow." 
 This is to be known as the widow's award. 
 
 § 319. This estimate is usually written upon or attached to 
 the appraisement bill. And it should contain the appraiser's 
 estimate of what good, serviceable articles of the kind men- 
 tioned are worth, without any regard whatever to the value of 
 those the deceased may have left, except those mentioned in 
 the fifth item. It will be observed that the value of the second, 
 sixth and twelfth items is fixed at one hundred dollars each. 
 If there are no stoves, pipes, etc., mentioned in the fifth item 
 the value is fixed at fifty dollars. (See Form No. 38.) 
 
 § 320. " When there is not property of the estate of the 
 kinds mentioned in the preceding section (74), the appraisers 
 may award the widow a gross sum in lieu thereof, except for 
 family pictures, jewels and ornaments." 1 
 
 § 321, The word "family," as used in the act of 1847, and 
 in precisely the same sense in which it is employed in the pres- 
 ent statute, was construed in Strawn v. Strawn, 53 111. 263, 
 where the court held that, the word " family," as used in that 
 statute, does not include alone the widow and minor children of 
 the deceased, but includes such persons as constituted the fam- 
 ily of the deceased at the time of his death, whether servants, 
 or children who had attained the age of majority. It does not 
 include boarders, but only the persons constituting the private 
 household of the deceased. The allowance of bedding, furni- 
 ture and provisions should be made on this basis. 2 Laivrence, 
 
 1 Stat. Tit. Admin. § 75, last clause. 
 
 2 In this case the estate of the deceased was worth $500,000, and the 
 homestead was a large and valuable house. The deceased left eight chil- 
 dren, all adults, of whom four made the widow's house their home, though 
 traveling much of the year succeeding the father's death. The family con- 
 
156 PEOPEETY EXEMPT. [CH. XXV. 
 
 J., said, this statute is not to be construed in regard to the char- 
 acter and amount of such allowance without reference to the 
 circumstances of the parties, but in fixing such allowance the 
 appraisers should take into view the condition and mode of 
 life in which the widow was left by the death of her husband, 
 and regard as necessary that furniture which is ordinary and 
 appropriate for such homesteads. 
 
 § 322. The widow may, if she elect, take and receive in lieu 
 of her award, the same personal property, or money in place 
 thereof, as is or may be exempt from execution or attachment 
 against the head of a family residing with the same." (See 
 Form No. 39, and note.) 
 
 § 323. The property exempt from execution or attachment 
 against the head of a family residing with the same, and which 
 the widow may take in lieu of her award, if she elects, is speci- 
 fied in section 13 of the act of 1873, in relation to exemption of 
 homestead and other property, 4 as follows : 
 
 " The following articles of personal property, owned by the 
 debtor, shall be exempt from execution, writ of attachment and 
 distress for rent, viz : 
 
 " First. — The necessary wearing apparel of every person. 
 
 " Second. — - One sewing machine. 
 
 " Third. — The furniture, tools and implements of any person, 
 necessary to carry on his trade or business, not exceeding in 
 value one hundred dollars. 
 
 " JFourtk. — Materials and stock designed and procured by him 
 or her and necessary for carrying on his or her trade and bus- 
 iness, and intended to be used or wrought therein, not exceed- 
 ing one hundred dollars in value. 
 
 sisted of the widow, the children above referred to, a young woman 
 raised by the family, a housekeeper, a cook, a man servant, and a man 
 acting as superintendent of the farm under the widow's control. The 
 appraisers allowed the widow beds, bedsteads and bedding estimated at 
 $400 ; household and kitchen furniture estimated at $1,600, and provisions 
 for a year estimated at $1,590. This award was approved successively by 
 the county, the circuit and the supreme courts. 
 
 3 Stat. Tit. Admin. § 14, last clause 
 
 4 Acts of 1873, p. 99. 
 
CH. xsv.] widow's election. 157 
 
 " Fifth. — The implements or library of any professional per- 
 son, not exceeding one hundred dollars in value. 
 
 " And in addition to the above property, when the debtor is 
 the head of a family and resides with the same, the following : 
 
 "First. — Necessary beds, bedsteads and bedding, two stoves 
 and pipe. 
 
 "Second. — Necessary household furniture, not exceeding in 
 value one hundred dollars. 
 
 " Third. — • One cow and calf and two swine. 
 
 "Fourth. — One yoke of oxen, or two horses in lieu thereof, 
 used by the debtor in obtaining the support of his family, not 
 exceeding in value two hundred dollars, and the harness there- 
 for, not exceeding in value forty dollars. 
 
 "Fifth. — Necessary provisions and fuel for the use of the 
 family for three months, and necessary food for the stock here- 
 inbefore exempted, for the same time. 
 
 " Sixth. — The bibles, school books and family pictures. 
 
 " Seventh. — The family library. 
 
 "Eighth. — Cemetery lots or rights of burial, and tombs or 
 repositories for the dead. 
 
 "Ninth. — One hundred dollars' worth of other property 
 suited to his or her condition in life, selected by the debtor." 
 
 § 324. The 17th section of the homestead act of 1873, 
 which repeals the act of 1872, title Homesteads, provides that, 
 the repeal shall not affect any rights which have accrued, or any 
 suits or proceedings that may be pending. The act of 1872 ex- 
 empted a larger amount of property. 
 
 § 325. The widow may elect whether she will take the 
 specific articles set apart to her, or take the amount thereof 
 out of other personal property at the appraised value thereof, 
 or whether she will take the amount thereof in money, or she 
 may take a part in property and a part in money, as she may 
 prefer. (See Form No. 39.) And in all such cases it is the 
 duty of the executor or administrator to notify the widow as 
 soon as the appraisement is made, and to set apart to her such 
 articles of property, not exceeding the amount to which she 
 may be entitled, and as she may prefer or select, within thirty 
 
158 widow's awakd. [ch. XXV. 
 
 days after written application shall be made for that purpose 
 by the widow. And if the executor or administrator neglects 
 or refuses to comply with such requisition by tne widow, he 
 will forfeit for her use the sum of twenty dollars for each 
 month's delay to set apart the property so selected, after the 
 said term of thirty days has elapsed ; to be recovered in the 
 name of the people of the state of Illinois, for the use of such 
 widow, in any court having jurisdiction of the same. 6 
 
 § 326. The right of a widow to her award is in no case to 
 be affected by her renouncing or failing to renounce the bene- 
 fit of the provisions made for her in the will, or otherwise. 6 As 
 to the effect of this section upon the 10th section of the statute, 
 title Dower, see note to Form No. 1, Wills, ante, § 210. 
 
 § 327. If the executor or administrator of an estate dis- 
 covers, at any time after an inventory and appraisement of the 
 property is made, that the personal property and assets of the 
 estate do not exceed the amount of the widow's award after de- 
 ducting the necessary expenses incurred, such executor or ad- 
 ministrator shall report the facts to the court, and, if the court 
 finds the report to be true, he shall order said property and 
 assets to be delivered to the widow by the executor or admin- 
 istrator, and discharge him from further duty ; but such ex- 
 ecutor or administrator shall first pay out of the property and 
 assets the costs and expenses of administration. 7 (See Forms of 
 Petition and Order, Nos. 30, 41.) 
 
 § 327a. After the court orders the delivery of such prop- 
 erty and assets to the widow, the clerk of said court shall make 
 and deliver to her a certified copy of the order, under seal, 
 which shall vest her with complete title to said property and 
 assets, and enable her to sue for and recover the same in her 
 own name and for her own use. Such widow shall not be 
 liable for any of the decedent's debts or liabilities, excepting the 
 
 5 Stat. Tit. Admin. § 75. 
 
 6 lb. §76. 
 
 ' Stat. Tit. Admin. § 59. The expenses of administration are ranked in 
 § 70 as of the fifth class. But that classification was intended for estates 
 having more than enough property to satisfy the widow's award. 
 
CH. XXVI.] SALE OF PERSONAL PROPERTY. 159 
 
 funeral expenses of the deceased. If, upon affidavit being 
 filed with the clerk of said court, that such executor or admin- 
 istrator fails or refuses to report in any case provided for in 
 this section, the court may order a citation and attachment to 
 issue as in other cases of failure of administrators to report. 
 'And on a discovery of new assets, administration may be 
 granted as in other cases, and charged to the account of the 
 estate. 8 
 
 CHAPTEE XXYI. 
 
 OF THE SALE OF PERSONAL PROPERTY. 
 
 § 328. Statutory provisions as to sale — time and place — notice — terms. — 
 Sale public, unless otherwise directed by the court. 
 
 329. Personal representative to act in good faith, and not responsible 
 
 for inadequacy of price. 
 
 330. Where private sale is lawful. 
 
 331. Personal representative may sell and indorse a note belonging to 
 
 the estate. 
 
 332. The power of one executor to dispose of personal assets. 
 
 333. "Warranty of property by personal representative and breach may 
 
 be shown in defense to a suit for the purchase money. 
 
 334. Personal representative has no right to buy at his own sale. 
 
 335. "Where testator directs that his estate shall not be sold. 
 
 336. It sale of personal property not necessary it may be distributed, 
 
 etc. 
 
 337. Growing crops not devised may be sold, or cultivated and sold at 
 
 maturity. Comments. 
 
 338. Clerk and crier may be employed — compensation allowed by the 
 
 court. Sales not made within specified hours, voidable. 
 
 339. Bill of sale to be made, under oath, and certified by the clerk and 
 
 crier. 
 
 § 328. The statute, section 91, provides for the sale of per- 
 sonal property as follows : When it is necessary for the proper 
 administration of the estate, the executor or administrator 
 
 8 Ibid. 
 
160 OEDEE FOE NOTICE, ETC. [CH. XXVI. 
 
 shall, as soon as convenient, after making the inventory and 
 appraisement,, sell at public sale all the personal property, 
 goods and chattels of . the decedent, when ordered so to do by 
 the county court, not reserved to the widow, or included in 
 specific legacies and bequests, when the sale of such legacies 
 and bequests is not necessary to pay debts, upon giving three 
 weeks' notice of the time ' and place of such sale, by at least 
 four advertisements, set up in the most public places in the 
 county where the sale is to be made, or by inserting an adver- 
 tisement in some newspaper published in the county where the 
 sale is to be made, at least four weeks successively, previous 
 thereto. The sale may be upon a credit of not less than six 
 nor more than twelve months time, by taking note with good 
 security of the purchasers at such sale. The sale may be for 
 all cash, or part cash and part on time: Provided, that any 
 part or all of such personal property, may, where so directed 
 by the court, be sold at private sale. (Form of Petition No. 
 42. Order of Court -No. 43. Notice of Sale No. 44.) 
 
 § 329. The statute requires the personal representative to 
 sell the personal property of the decedent at public sale, but 
 with a single exception, specified in section 94 (see post, § 337), 
 does not authorize a private sale unless ordered by the court. 
 And if he makes the sale in good faith, as directed by law, 
 he is not responsible for any inadequacy of price which the 
 property may bring. But if he should sell it at private sale, 
 he would be answerable for any injury to those interested in 
 the estate." 
 
 § 330. A personal representative may dispose of the per- 
 sonal estate or assets of the testator to a bona fide purchaser for 
 a valuable consideration, and the contract will be obligatorv, 
 unless the purchaser knows or has good reason to suspect, that 
 the sale is made with a design to misapply the funds, to the 
 prejudice of those interested in the estate, and the purchaser is 
 not bound to see to the application of the money. But if sold 
 (as a note belonging to the estate was sold in this case), to pay 
 
 1 See post, § 338, as to the hour of the day. 
 f See Burnap v. Dennis. 3 Scam. 478. 
 
CH. XXVI.] SALE OF PERSONALTY 161 
 
 his own debt, and that fact is known to the purchaser, or if 
 sold for a grossly inadequate price, such sale is fraudulent and 
 void, as to those for whose benefit the estate or property is 
 holden ; and they may treat the personal representative as per- 
 sonally liable, or pursue the property into>the hands of the pur- 
 chasers. 3 
 
 § 331. The personal representative may indorse and sell a prom- 
 issory note belonging to the estate so as to vest the legal interest 
 in it, and authorize the holder to sue thereon in his own name. 4 
 § 332. One of two or more executors possesses the power to 
 dispose of the personal assets of the testator as fully as when 
 all join in the act of transfer. They have a joint and entire 
 authority over the personal estate, and the bona fide acts of one 
 in respect to that estate are binding upon the whole. They 
 constitute in law but one person representing the testator, and 
 the act of one is deemed to be the act of all. Thus, a term of 
 years passes by the assignment of one of several executors, A 
 release of a debt by one binds all. A sale of a chattel by one, 
 transfers the title to the purchaser. And one executor may as- 
 sign a promissory note made payable to the testator, so as to 
 vest the legal interest in the purchaser." 
 
 § 333. If the personal representative warrants personal prop- 
 erty of the estate sold by him, the maker of a note given for 
 such property, may show in defense to a suit thereon a failure 
 of consideration under the warranty.' 
 
 § 334. It is a familiar and well understood principle that the 
 personal representative has no right to become a purchaser at 
 his own sale. 
 
 § 335. Section 92 provides that, if any testator directs that 
 
 8 McOonnell v. Hodson, 2 G-ilm. 040; Makepeace v. Moore, 5 Gilm. 174; 
 "Williams on Ex'rs, 796. 
 
 4 Makepeace v. Moore, supra; Stone v. Rawlinson, Willes, 559; "Walker 
 v. Craig, 18 111. 116. 
 
 6 Dwight v. Newell, 15 111. 33, and authorities cited. 
 
 6 "Welch v. Hoyt, 34 111. 117; Bay v. "Virgin, 12 111. 216; Rice v. Richard- 
 son, 3 Ala. 438. As to administrators' covenants of title contained in a 
 deed of land, see Vincent v. Bertrand, Breeze, 227, and cases cited, and 
 notes. 
 
 11 
 
162 WHEN TO BE MADE. [CH. XXVI. 
 
 his estate shall not be sold, the same .shall be preserved in 
 kind, and distributed accordingly, unless such sale becomes 
 absolutely necessary for the payment of the debts and charges 
 against the estate of such testator. 
 
 In such case it would be advisable for the personal repre- 
 sentative to apply to the court for an order to make the sale. 
 
 § 336. Section 93 provides that, if the sale of the personal 
 property is not necessary for the payment of debts or legacies, 
 or the proper distribution of the effects of the estate, the court 
 may order that the property be preserved and distributed in 
 kind. 
 
 § 337. Section 94 provides that, if any executor or admin- 
 istrator is of opinion that it would be of advantage to the 
 estate of the decedent to dispose of the crop growing, and not 
 devised at the time of his decease, the same shall be inven- 
 toried, appraised and sold, in like manner as other property is 
 sold ; but the executor or administrator may, if he believes it 
 would be of more advantage to the estate, cultivate such crop 
 to maturity, and the proceeds of such crop, after deducting all 
 necessary expenses for cultivating, gathering and making sale 
 of the same, shall be assets in his hands, and subject to the 
 payment of debts and legacies, and to distribution as aforesaid. 
 
 The last clause of the foregoing section evidently contem- 
 plates that the sale shall be private. The personal represen- 
 tative should therefore make such a true and full return to the 
 •court of his proceedings in the premises as to prima facie, 
 at least, justify the court in approving of his acts. 
 
 § 338. Section 95 provides that, in all public sales of such 
 property, the executor or administrator may employ necessary 
 clerks and a crier, who shall be allowed such compensation, not 
 exceeding three dollars per day, as the court may deem reason- 
 able, to be paid by such executor or administrator, and charged 
 to the estate. All such sales shall be made between the hours 
 of ten o'clock in the forenoon and five o'clock in the afternoon 
 of each day ; and any sale made before or after the time herein 
 limited, shall be voidable at the instance of heirs, devisees or 
 creditors prejudiced thereby. 
 
CH. XXVII.] PARTNERSHIP ESTATE. 163 
 
 § 339. Section 96 provides that, all executors and adminis- 
 trators shall, immediately after making such sales, make, or 
 cause to be made, a bill of the sales of said estate, under oath, 
 describing particularly each article of property sold, to whom 
 sold, and at what price ; which sale bill, when thus made and 
 certified by the clerk of such sale and the crier thereof, if any 
 such was employed, as true and correct, shall be returned into 
 the office of the clerk of the county court in the like time as 
 is required in cases of inventories and appraisements. (See 
 Forms of Sale Bills Nos. 45, 46.) 
 
 CHAPTER XXVII. 
 
 PARTNERSHIP PROPERTY AND EFFECTS — RIGHTS AND 
 DUTIES OF SURVIVING PARTNERS — RECEIVERS OF PART- 
 NERSHIP EFFECTS. 
 
 § 340. Rights of surviving partners in partnership property and business. 
 
 341. Primarily the administrator of a deceased partner has nothing to 
 
 do with partnership assets. 
 
 342. Partnership property — how divided. 
 
 343. Surviving partner to make an inventory of the partnership estate, 
 
 and cause it to be appraised. 
 
 344. Appraisers should be chosen for that special purpose. 
 
 345. Return of inventory and appraisement and list of liabilities to be 
 
 made under oath to the court — time — penalty for neglect. 
 
 346. Surviving partner to continue in possession, pay debts, settle busi- 
 
 ness, and pay over balance to personal representative. 
 
 347. Of waste by the surviving partner, and the remedy. 
 
 § 340. The property and effects of a partnership do not be- 
 long exclusively to the surviving partner; but they are to be 
 distributed between him and the representatives of the deceased 
 partner in like manner as upon a voluntary dissolution of the 
 partnership. 1 The death of a partner at once puts an end to 
 
 1 Story Part. § 342. 
 
164 SURVIVING partner's powers. [ch. xxvit 
 
 the partnership, whether known to the survivor or not ; and the 
 survivor has no lawful right to expend the money of the firm, 
 however necessary the expenditure may be, to carry on the 
 business. • If he does employ the assets of the firm in this man- 
 ner, he takes the risk of all losses, but at the option of the rep- 
 resentative of the deceased, may be compelled to account for 
 the profits made thereby. 2 For some purposes the partnership 
 is said to subsist after the death of a partner. The rights, du- 
 ties, powers and authorities of the survivor remain, so far "as is 
 necessary to enable him to wind up and settle the affairs of the 
 partnership. Upon the dissolution of a partnership by death, 
 the surviving partner is entitled to close up the affairs of the 
 firm. He therefore has a right to receive the debts due the 
 partnership, and on the other hand, to apply the partnership as- 
 sets and effects in discharge of the debts and other obligations 
 due from it. However, where there is any danger of the abuse 
 or positive misapplication of those funds by the surviving part- 
 ner, a court of equity will interpose, and restrain it by injunc- 
 tion, and if necessary appoint a receiver, upon the application 
 of the personal representative of the deceased 8 
 
 § 341. Primarily the administrator of a deceased partner 
 has nothing to do with the partnership assets or the partnership 
 debts. The surviving partner takes the exclusive legal title 
 to the former for the payment of the latter. If any assets re- 
 main in his hands after payment of all liabilities, he should 
 account to the administrator for the distributive share of the 
 deceased, which then becomes assets in his hands as adminis- 
 trator. 1 If there is partnership property, and also separate 
 property of a partner, the partnership debts are to be paid out 
 of the proceeds of the joint estate. The joint creditors have 
 no claim on the fund arising from the separate estate, until the 
 individual debts are satisfied ; and on the other hand the sepa- 
 rate creditors can only seek payment out of the surplus of the 
 
 5 lb. 343; Remick v. Einig, 42 111. 342. 
 
 8 Story Part. § 344. The statute, as we shall presently see, has given 
 a very extensive jurisdiction in these cases to the county court. 
 4 Miller v. Jones, 39 111. 54; see also Keniick v. Emig, 42 111. 342. 
 
GH. XXVII.] PARTNERSHIP PROPERTY. 165 
 
 partnership effects, after the satisfaction of the joint liabil- 
 ities. 6 
 
 § 342. Upon the dissolution of a partnership by the death 
 of one of the firm, the property is common, to be divided ac- 
 cording to the shares of the partners, after the payment of the 
 debts. This property is, first, the stock in trade as originally 
 contributed, with all the additions made to it ; second, real 
 estate owned by the company, and, third, in certain cases, the 
 good will of the business is regarded as part of the common 
 stock. In taking an account between the partners themselves, 
 the state of the stock is to be taken as at the death of one 
 partner, and the proceeds thereof, until it is got in ; and each 
 partner is to be allowed whatever he has advanced to the part- 
 nership, and to be charged with what he has failed to bring 
 in, or has drawn out more than his just proportion. The part- 
 ners, if there is no agreement to the contrary, are to be allowed 
 equal shares of the profits of the stock. 8 
 
 § 343. The statute, section 87, provides that, " In case of 
 the death of one partner, the surviving partner or partners 
 shall proceed to make a full, true and complete inventory of 
 the estate of the co-partnership within his knowledge ; and shall 
 also make a full, true and complete list of all the liabilities 
 thereof, at the time of the death of the deceased partner. He 
 or they shall cause the said estate to be appraised in like man- 
 ner as the individual property of a deceased person." (See 
 Forms, Nos. 47, 48, 49, 50.) 
 
 § 344. The section last quoted does' not make it the duty of 
 the appraisers of the individual property of the deceased to 
 appraise that of the partnership, nor make it the duty of the 
 personal representative to see that such appraisement is made. 
 The surviving partner alone is required to cause the appraise- 
 ment to be made, which would seem to imply that the ap- 
 praisers, whether those appointed to appraise the individual 
 property or others, should be specially appointed for that pur- 
 pose. 
 
 s Ladd v. Griswold, 4 Gilm. 25. 
 
 « Remick v. Emig,42 111. 342; see Mason v. Tiflany, 45 111. 392. 
 
166 INYENTOHY — WASTE. [CH. XXVII. 
 
 § 345. Section 88 provides that, " He or they shall return, 
 tinder oath, such inventory, list of liabilities and appraisement 
 within sixty days after the death of the co-partner, to the county 
 court of the county of which the deceased was a resident, or car- 
 ried on the partnership business at the time of his death ; if the 
 deceased shall have been a non-resident, then such return shall 
 be made to the county court granting administration upon the 
 effects of the deceased. Upon neglect or refusal to make such 
 return, he shall, after citation, be liable to attachment " 
 
 § 346. Section 89 provides that, " Such surviving partner or 
 partners shall have the right, to continue in possession of the 
 effects of the partnership, pay its debts out of the same, and 
 settle its business, but shall proceed thereto without delay, and 
 shall account with the executor or administrator, and pay over 
 such balances as may, from time to time, be payable to him in 
 the right of his testator or intestate. Upon the application of 
 the executor or administrator, the county court may, whenever 
 it may appear necessary, order such surviving partner to render 
 an account to said county court ; and in case of neglect or re- 
 fusal may, after citation, compel the rendition of such account 
 by attachment." 
 
 § 347. And section 90 further provides that, " Upon the 
 committal of waste by the surviving partner or partners, the 
 court may, upon proper application, under oath, setting forth 
 specifically the facts and circumstances relied on, protect the 
 estate of the deceased partner, by citing forthwith the surviv- 
 ing partner or partners to give security for the faithful settle- 
 ment of the affairs of the co-partnership, and for his accounting 
 for and paying over to the executor or administrator of the 
 deceased whatever shall be found to be due, after paying part- 
 nership debts and costs of settlement, within such time as shall 
 be fixed by the court. The giving of such security may be 
 enforced by attachment ; or, upon refusal to give such security, 
 tie court may appoint a receiver of the partnership property 
 and effects, with like powers and duties of receivers in courts 
 of chancery ; the costs of proceedings under this section to be 
 paid by the executor or administrator, out of the estate of the 
 
CH. SSYIII.] claims against estates. 167 
 
 deceased or surviving partner, or partly by each, as the court 
 may order.' (See Form Nos. 51, 52, 53.) 
 
 CHAPTEE XXVIII. 
 CLAIMS AGAINST ESTATES. 
 
 Part I. Of Proving Them — "What abe Legal Claims. 
 
 § 348. Personal representative to fix upon a term of court for adjustment 
 of claims, — limitation — notice. 
 849. Presentation of claim — must be sworn to — if contested, how. 
 350.*Delay for a long time a suspicious circumstance. 
 
 351. If claim not presented at the term selected, how to proceed. 
 
 352. Proceedings at the trial — costs. 
 
 353. Discretionary with the court to require claimant's oath that the 
 
 claim is just, and unpaid. Comments. 
 
 354. Judgments and instruments in writing signed by the deceased — 
 
 when considered proved. 
 
 356. Set off by the personal representative against a claim. 
 
 357. Claims not due — how disposed of. 
 
 7 Previous to the enactment of the last four sections, in 1869, there was 
 no statute regulating the inventory and accounting for partnership prop- 
 erty, and there was no power to reach partnership property in the hands 
 of surviving partners, and to compel such partners to settle with the per- 
 sonal representative of the deceased partner, except that exercised by 
 courts of equity; which, if it could be said to be sufficient in any case, 
 was always tedious and expensive. "When a surviving partner was guilty 
 of laches or bad faith, the administrator of the deceased partner might 
 interfere by bill in equity. See People v. White, 11 111. 341. 
 
 The word "waste " in section 90, appears to have been used in a broad 
 sense, and to include not only technical waste, but devastavits, as where 
 the surviving partner, acting as he does, in the capacity of a trustee, di- 
 rectly abuses his trust, by selling, embezzling or converting to his own 
 use the goods of the firm remaining in his hands; or by maladministra- 
 tion, as, by paying claims not owing by the estate ; or by neglect to collect 
 and secure debts owing the firm, or to dispose of the goods within a rea- 
 sonable time, or, if perishable, before they are wasted. 
 
 Technical waste may be committed in these cases by destroying the 
 machinery of a mill or removing counters, shelving, doors and the like 
 of buildings, destroying fences, etc. 
 
168 CLAIMS AGAINST ESTATES. [CH. XXVIII. 
 
 § 358. Appeal from the decision allowing or rejecting claim. — Bond. 
 
 359. Executions against real estate of decedent on judgments rendered 
 
 against him. 
 
 360. Of the reversal of judgments by scire facias in sucli cases. 
 
 361. Effect of revival where the judgment had ceased to be a lien. 
 
 362. Personal representative having claim against the estate— how to 
 
 proceed. 
 
 363. Cases and matters pending in the county court in which the judge 
 
 is interested — how to proceed. 
 
 364. Claim to he presented within two years after grant of letters — effect 
 
 if not presented. 
 
 365. Jurisdiction of the court not limited by the amount of the claim 
 
 — its judgment prima facie evidence of the debt against the 
 estate — heir may appeal — effect of appeal. 
 
 366. Persons interested may object to the allowance of claims when 
 
 they are. presented for probate. 
 
 367. And may do so upon an application of the personal repsesentative 
 
 for an order to sell lands. 
 368, 369. Jurisdiction of probate courts extends to the allowance of 
 equitable claims against estates — how to proceed. 
 
 370. Services rendered for the benefit of the estate at the request of the 
 
 personal representative, are to be paid for by the estate. 
 
 371. An attorney who is administrator is not entitled to charge the estate 
 
 for professional services rendered by him. 
 
 372. Valid cladms paid by persons interested, with intent to settle the 
 
 estate without administration — the claims of such person may be 
 allowed therefor. 
 
 373. Judgment against an administrator in one state, not evidence of 
 
 indebtedness against another administrator of the same dece- 
 dent in another state; not so a judgment against the decedent. 
 
 374. The personal representative appointed in this state cannot enter his 
 
 appearance as such representative in another country, in a suit 
 against the estate. 
 
 375. 376. Expenses of the funeral. 
 
 377. Expenses of a suitable monument, a proper charge against the 
 
 estate. 
 
 378. Mourning apparel of family is not. 
 
 379. A defendant in a demand by the personal representative may be 
 
 allowed in defense a set off, and have judgment for a balance 
 due him. 
 
 380. Creditors may resort to other than probate courts in the first in- 
 
 stance. 
 
 381. Personal representives have power to submit claims against estates 
 
 to arbitration. 
 
 382. Duty of personal representatives to interpose every lawful defense 
 
 to claims against estates. — Remedy. 
 
CH. XXVIII.] CLAIMS — WHEN TO BE PROBATED. 169 
 
 § 348. The executor or administrator is required by sectiou 
 60, to fix upon a term of court, within six months from the 
 time he qualified as such executor or administrator, for the ad- 
 justment of all claims against the decedent, and give notice 
 thereof in some public newspaper published in the county, or 
 if no newspaper is published in the county, then in the nearest 
 newspaper in this state, and also by putting up a written or 
 printed notice on the door of the court house, and in five other 
 of the most public places in the county, notifying and request- 
 ing all persons having claims against such estate to attend at 
 said term of the court for the purpose of having the same ad- 
 justed, — such notice to be given at least six weeks previous to 
 said term. (See Form No. 54, also Form of Proof of Publica- 
 tion, No. 55.) 
 
 § 349. The same section provides that, the claimant shall 
 produce his claim in writing ; and if no objection is made by 
 the execcutor or administrator, widow, heirs or other interested 
 in the estate, and the claimant swears that such claim is just 
 and unpaid, after allowing all just credits (see Form No. 56), 
 the court may allow such claim without further evidence, but 
 if objection is made thereto, it shall not be allowed without 
 other sufficient evidence. The court may allow either party 
 further time to produce evidence in his favor, and the case shall 
 be tried and determined as other suits at law. Either party 
 may demand a jury of either six or twelve men, to try the 
 issue, and it is the duty of the clerk, when a jury is demanded, 
 to issue a venire to the sheriff to summon a jury, to be com- 
 posed of the number demanded. 
 
 § 350. Delay in presenting a claim till three years after the 
 death of the deceased is regarded as a suspicious circumstance, 
 and may be given in evidence to the jury among other facts to 
 rebut the plaintiff's claim. 1 
 
 § 351. Section 61 provides that, if a claimant fails to pre- 
 sent his claim for adjustment at the term of court selected by 
 the executor or administrator, he may file a copy of the same 
 
 •O'Connor v. O'Connor, 52 111. 316. 
 
170 PEOBATE OF CLAIMS. [CH. XXVIII. 
 
 with the clerk of the court ; and thereupon, unless the executor 
 or administrator will waive the issuing of process, the clerk 
 shall issue a summons, directed to the sheriff, requiring such 
 executor or administrator to appear and defend such claim at a 
 term of court therein specified, which summons, when served, 
 shall be sufficient notice to the executor or administrator of the 
 presentation of such claim. And section 62 provides, that if 
 the summons is not served ten days before the first day of the 
 term to which it is returnable, the cause must be continued 
 until the next term of the court, unless the parties shall, by 
 consent, proceed to trial at the return term. 
 
 § 352. Section 63 provides that, upon the trial of such 
 cause, the same proceedings may be had as if the claim had 
 been presented at the time fixed for the adjustment of claims 
 against the estate, but the estate shall not be answerable for the 
 costs of such proceeding : Provided, that when defense is made 
 the court may, if it shall deem just, order the whole or some 
 part of the costs occasioned by such defense, to be paid out of 
 the estate. 
 
 § 353. Section 64 provides that, the court may, in its discre- 
 tion, in any case, before giving judgment against any executor 
 or administrator, require the claimant to make oath that such 
 claim is just and unpaid : Provided, the amount of such judg- 
 ment shall not in such case be increased upon the testimony 
 of the claimant. 
 
 § 354. Though the statute allows the oath, that the claim 
 is just and unpaid, to be dispensed with in some cases, it is 
 hard to conceive an instance where abuse might not creep in if 
 this oath were not required, except where a judgment has been 
 rendered in another court, against the personal representative. 
 However just the claim may once have been, it may have been 
 wholly or in part paid, without the knowledge of the adminis- 
 trator. Instances have occurred justifying these observations. 
 
 § 355. Section 65 provides that, " A judgment regularly 
 obtained, or a copy thereof duly certified and filed with the 
 court, shall be taken as duly proven ; and all instruments in 
 writing signed by the testator or intestate, if the hand writing 
 
CH. XXVIII.] CLAIMS — APPEAL FROM PROBATE. 171 
 
 is proven, and nothing is shown to the contrary, shall be 
 deemed duly proved." 
 
 § 356. Section 66 provides that, when a claim is filed or 
 suit brought against an executor or administrator, and it ap- 
 pears on trial that the claimant or plaintiff is indebted to the 
 executor or administrator, the court may give judgment there- 
 for, and execution may issue thereon in favor of the executor 
 or administrator. 
 
 § 357. Section 67 provides that, where a claim is not due, 
 the creditor may, nevertheless, present the same for allowance 
 and settlement, and shall thereupon be considered as a creditor, 
 and shall receive a dividend, of the decedent's estate, after de- 
 ducting a rebate of interest for what he shall receive on his 
 claim, to be computed from the time of the allowance thereof 
 to the time his claim would have become due, according to 
 the terms of the contract. 
 
 § 358. Section 68 provides that, in all cases of the allow- 
 ance or rejection of claims by the county court, as provided in 
 this act, either party may appeal from the decision rendered, to 
 the circuit court of the same county, in the same time and man- 
 ner appeals are now taken from justices of the peace to the cir- 
 cuit courts, the appellant giving good and sufficient bond with 
 security to be approved by the county judge ; and such appeals 
 shall be tried de novo in the circuit court The statute, title 
 Justices of the Peace, § 62, provides that, appeals from judg- 
 ments of justices of the peace shall be taken within twenty days 
 from the rendering of the judgment, and section 63 provides 
 that, one or more of several plaintiffs or defendants may ap- 
 peal. The penalty of the bond should be sufficient to cover 
 all costs which have accrued, as well as those which would be 
 likely to accrue in the circuit court. 
 
 § 359. The statute, title Judgments and Decrees, § 39, pro- 
 vides that. " "When a person shall die after the rendition of a 
 judgment or decree for the payment of money against him is 
 obtained in a court of record, execution may issue against the 
 real estate of such deceased person, or sale may be made under 
 such decree without reviving the judgment or decree against 
 
172 EEVIVAL OF JUDGMENTS. [CH. XXVIII. 
 
 his heirs or legal representatives : Provided, that no execu- 
 tion shall issue, or sale be made until after the expiration 
 of twelve months from the death of such deceased person ; 
 nor shall any sale be had on any such execution or decree 
 until the person in whose favor the judgment or decree is sought 
 to be enforced shall give to the executor or administrator, or if 
 there is neither, the heirs of the deceased, at least three months' 
 notice in writing of the existence of such judgment or decree, 
 before issuing execution or proceeding to sell. 2 
 
 § 360 In Brown v. Parker, 15 111. 307, it was held that, 
 where either party to a judgment dies before execution is is- 
 sued the judgment must be revived by scire facias, or execution 
 must be issued in the mode pointed out by the statute ; but un- 
 less one or the other course is pursued, an execution issued 
 upon such judgment, and all proceedings under it, are abso- 
 lutely void. 
 
 § 361. The revival of a judgment against the personal rep- 
 resentative, which had ceased to be a lien upon the real estate 
 of the deceased before his death, does not create such a lien 
 against such estate as will authorize an execution to issue for its 
 sale ; and a sale thereon is void. 3 The proper order in such 
 cases is, that the judgment be revived against the administra- 
 tor, to be paid by him in due course of administration, 4 But 
 it would seem that where the defendant died within a year 
 after the rendition of the judgment, and no execution is issued 
 thereon in his lifetime, the lien of the judgment is preserved by 
 section 37 (statute, title Judgments and Decrees), and may be 
 
 5 The court in "Wight v. Wallbaum, 29 111. 554, suggest that the proper 
 form of execution in such a case would be to recite therein the fact of the 
 recovery of judgment, the death of the defendant, and the notice to the ad- 
 ministrator, and then specially command the sheriff that of the lands 
 owned by the defendant at his death, in his county, he levy the amount 
 of the judgment and costs. Foreign administrators have the power to sue 
 out an execution on a judgment rendered in this state in favor of the in- 
 testate in his lifetime. Keefer v. Mason, 36 111. 406. 
 
 s Turney v. Young, 22 111. 253; Turney v. Gates, 12 111. 141. 
 
 <Turney v. Gates, 12 111. 141; Welch v. Wallace, 3 Gilm. 490. 
 
CH. XXVIII.] CLAIMS. 173 
 
 enforced by execution under section 39, though it could not be 
 issued within a year after the rendition of judgment." 
 
 § 362. Section 72 provides that, when an executor or. ad- 
 ministrator has a demand against his testator or intestate's 
 estate, he must file the same as other persons are required to 
 do ; and the court will appoint some discreet person to appear 
 and defend for the estate (see Form No. 57), and, upon the 
 hearing, the court or jury shall allow his demand or such part 
 thereof as shall be legally established, or reject the same, as 
 shall appear just. Upon an appeal by the executor or admin- 
 istrator in such case, the court will appoint some person to de- 
 fend as aforesaid, in the appellate court. 
 
 § 363. Section 69 provides that, " In all cases or matters 
 pending in the county court, when the judge of that court shall 
 be interested in the same, or is a material and necessary witness, 
 the case shall be transmitted to the circuit court of the proper 
 county, and there determined as in the county court ; and the 
 papers, with the order or judgment of the circuit court thereon, 
 shall be duly certified and filed in the county court, and have 
 the same effect as if determined in the county court." * 
 
 § 364. A party must present his claim within two years 
 after the date of letters, and have it allowed, or he cannot be- 
 come a distributee of the assets of the estate inventoried or 
 accounted for by the personal representative after that period. 
 Nor can he have any benefit of subsequently discovered 
 assets, even in equity unless his claim has been allowed." 
 
 § 365. The statute does not limit the jurisdiction of the 
 county court as to the amount of a claim which may be al- 
 lowed by it against an estate.' And its judgment allowing or 
 
 ■Wight v. "Wallbaum, 39 111. 554. 
 
 *The act of March 1, 1854, cited in Gross' Stat. 530 in relation to change 
 of venue in county courts, is not repealed by the statute of 1872, but as 
 sec. 69 provides fully for all the necessities of such cases no further notico 
 of it will be taken. 
 
 6 Wingate v. Pool, 25 111. 118 ; Stone v. Clark, 40 111. 411, and cases oited ; 
 see post, §§ 404, 405. 
 
 7 Hanna v. Yokum, 17 111. 387. And the judgments of these courts are 
 are final as to all matters within their jurisdiction. lb. Stone v. "Wood! 
 
174 CONTEST. [CH. XXVIII. 
 
 rejecting a claim against an estate is final as between creditor 
 and personal representative, until reversed or impeached for 
 fraud. And such a judgment is prima facie evidence of the 
 existence of a debt against the estate, as against the heir, in 
 proceedings for the sale of real estate to pay debts.* But the 
 heir may appeal from the allowance of a claim, in which case 
 he will, says Oaton, J., doubtless be bound by the judgment. 
 But he loses none of his rights if he fails to appeal. He is not 
 a party nor even a privy till he appeals, except so far as he has 
 an interest in the personal estate, as being entitled to the resi- 
 due of the payment of the debts. 9 
 
 § 366. "We have "seen by the statute, § 60, that objection 
 may be made to the allowance of a claim by the widow, heirs 10 
 or others interested in the estate, and if such objection is made, 
 the claim cannot be allowed without other sufficient evidence 
 besides the claimant's affidavit that it is just and unpaid. And 
 doubtless the widow or creditors and legatees may appeal, as 
 we have seen the heir may, from the judgment of the court al- 
 lowing the claim. 
 
 § 367. But upon an application by the personal represen- 
 tative for leave to sell lands to pay debts, the heir may contest 
 the validity of the claims allowed against the estate. The 
 judgment in such cases is not conclusive against him unless, as 
 we have seen, he has appealed from it." 
 
 16 111. 177. The allowance of a claim is conclusive upon the personal 
 representative and has the force and effect of a judgment until it is re 
 versed. Mason v. Bair, 33 111. 194. And it is prima facie binding upon 
 the heirs even if they neglect to appear and resist the claim. lb. 
 
 6 Stone v. "Wood, 16 111. 177; Hopkins v. McCann, 19 111. 113; Moline 
 "Water Co. v. Webster, 26 111. 233; Rosenthal v. Renick, 44 111. 202. 
 
 9 Stone v. Wood, 16 111. 177; Mason v. Bair, 33 111. 194. 
 
 10 Minors may appear before the county court by their guardian and 
 contest claims against the estate of the ancestor, but should defend in the 
 name of the administrator. Mostinger v. Coleman, 16 111. 71. If an ap- 
 peal is taken by the claimant it brings the administrator only into court 
 but the heir may still defend. lb. 
 
 11 Stone v. Wood, 16 111. 177; Hopkins v. McCann, 19 111. 113; Moline 
 Water Power and Mfg. Co. v. Webster, 26 111. 234. 
 
CH. XXVIII. EQUITABLE CLAIMS. 175 
 
 § 368. The jurisdiction of probate courts extends to the 
 allowance of equitable claims and demands for money, against 
 the estates of deceased persons, 12 but is confined to those in 
 which no party except such as are before the court has any in- 
 terest, and where no conflicting claim exists. It does not, for 
 example, extend to a case where a debt against a partnership is 
 sought to be proved against the estate of a deceased partner, 
 before the partnership assets and those of the surviving mem- 
 bers have been exhausted. 13 and real estate may be sold for 
 their payment as in other cases." In Moline Water Power 
 Mfg. Co, v. Webster, it was held, that debts against the firm of 
 which the intestate was a member, after partnership assets 
 have been exhausted, in payment of the firm debts, are equit- 
 able claims against the estate, subject to the individual debts 
 of the deceased, all of which must be paid before any pay- 
 ment can be allowed upon the firm debts ; and this should be 
 provided for in the order of the probate court, upon the allow- 
 ance of the claim against the estate. And no claim should be 
 allowed against the estate, for a partnership debt, till it is 
 shown that the partnership assets have been exhausted. (See 
 Form No. 59.) 
 
 § 369. In Dixon v. Buell, supra, the court, recognizing the 
 jurisdiction of probate courts over equitable claims, for money 
 against estates, held, in substance, that when a contract not as- 
 signable by law, so as to vest the legal title in the assignee and 
 the right to bring suit in his own name, was assigned, the assignee, 
 nevertheless, took an equitable title to the same, and might 
 have his claim allowed by the probate court, in his own name. 
 
 § 370. When a person renders services for the benefit of 
 the estate of a decedent, at the instance of the personal repre- 
 sentative, his claim for compensation is not a personal demand 
 against such representative; but, on his death, may be enforced 
 against such estate, in the hands of his administrator de bonis 
 
 12 Moore v. Rogers, 19 111. 347 ; Dixon v. Buell, 21 111. 203. 
 
 13 Pahlman v. Graves, 26 111. 405. 
 
 "Moline Water Power Mfg. Co. v. Webster, 26 111. 233; See People 
 v. Lott, 36 111. 447. 
 
176 PRACTICE. [CH. XXVIIL 
 
 non ; for the acts of the personal representative rightfully done 
 in his official character are binding on the estate he represents." 
 
 § 371. An attorney who is an administrator, is not entitled 
 to an allowance against the estate for professional services 
 which he has rendered in its settlement. Such services by him 
 are regarded as a gratuity. 10 
 
 § 372. "When valid claims against an estate have been paid 
 in good faith, by one interested in the estate, thereby intending 
 to settle the same without administration, his claim for the 
 amount of such payments will be allowed against the estate." 
 
 § 373. A judgment against an administrator in one state is 
 no evidence of indebtedness against another administrator of 
 the same decedent in another state, for the purpose of affecting 
 assets received by the latter under his administration. The suit 
 should be upon the original cause of action. 16 But a judgment 
 against the deceased, wherever rendered, is made by the stat- 
 ute, sufficient evidence of indebtedness. A citizen of another 
 state in which administration has been granted upon an estate, 
 may come to this state and cause letters of administration to be 
 taken out here, a claim to be allowed, and may have real estate 
 sold for its payment ; and in such case it is not necessary to 
 show that the personal estate in the other state has been ex- 
 hausted." 
 
 § 374. A personal representative appointed in this state 
 cannot enter his appearance as such representative, in a suit 
 brought in another country, upon a demand against the estate 
 which he was appointed to administer. A judgment in such 
 case cannot be admitted to probate, or be a ground of action in 
 this state. Suit must be brought here on the original cause of 
 action. 20 
 
 15 Greene v. Grhnshaw, 11 111. 389. 
 I6 "Willard v. Bassett, 27 111. 37. 
 " Brearley v. Norris, 23, Ark. 166. 
 
 18 Rosenthal v. Benick, 44111. 202; Story's Conflict of Laws, § 52B; Judy 
 v. Kelley, 11 111. 211. 
 
 19 Rosenthal v. Renick, supra. 
 50 Judy v. Kelley, 11 111.211. 
 
CH. S5VIII.] CLAIMS — FUNERAL EXPENSES. 177 
 
 § 375. The expenses of the funeral are a proper charge 
 against the estate, and are privileged claims, being ranked by 
 the statute as of the first class. In general there is no difficulty 
 in determining upon what shall be included in these expenses. 
 But there is a considerable diversity of opinion among courts 
 upon some questions connected with this matter. Ordinarily 
 those who direct the funeral expenses of a deceased person 
 should be governed, to some extent, by the general opinion 
 and expectation. Like matters of dress and furniture, it is to 
 be regulated to some extent, by the feelings of friends and 
 neighbors ; which will conform to the general custom. And 
 like anything else of this kind, it should, if possible, attract no 
 attention either way, but should come precisely up to the de- 
 mands of public decency, and in no particular overstep that 
 safe limit. This will require a due regard to the age, standing, 
 property and habits of life, and modes of living of the de- 
 ceased, with many other circumstances which it would be diffi- 
 cult to enumerate. 
 
 § 376. It is the duty of the executor, or some one on behalf 
 of the estate, to see that the funeral rites of the deceased are 
 decently performed, and to the extent of assets in his hands the 
 personal representative is liable, in assumpsit, to pay the ex- 
 pense thus incurred" In another case in Massachusetts, it 
 was held that where a person being at a distance from home, 
 sent for his wife and other relatives, and they went to see him, 
 but did not arrive until after his death, and the executor paid 
 the expense of their journey, less than $12, he should be 
 allowed to charge the same in his account of administra- 
 tion." 
 
 § 377. American courts have generally treated the cost of a 
 suitable monument erected by the personal representative at 
 the grave of the deceased, as a part of the funeral expenses, and 
 a legitimate charge against the estate, especially where the 
 
 81 Hapgood v. Houghton, 10 Pick. 154 ; Rappelyea v. Russell, 2 Daly, 
 C. P. 214. 
 22 Jennison v. Hapgood, 10 Pick. 77. 
 12 
 
178 AEBITKATION — DEFENSE. [CH. XXVIII. 
 
 rights of creditors cannot be defeated thereby." But in Fair- 
 man's Appeal, 30 Conn. 205, it was decided by the court, that 
 tombstones are properly a part of the funeral expenses, and, 
 under the advice of the probate court, a reasonable sum may 
 be used by the personal representative for that purpose, even 
 where the estate is insolvent. 
 
 § 378. A demand for mourning apparel furnished the widow 
 and family of a deceased person, by direction of the executor, 
 cannot be charged against the estate, as part of the funeral ex- 
 penses." 
 
 § 379. A defendant, in an action by a personal representa- 
 tive, may show in defense a set off, and if any balance is found 
 in his favor, he may have judgment therefor, to be paid as in 
 other cases." 
 
 § 380. A creditor is not compelled to present his claim to 
 the probate court for allowance, but he may resort in the first 
 instance to the circuit court. 2 ° 
 
 § 381. The personal representative has no power to submit 
 a claim against an estate to arbitration, and he cannot bind the 
 estate by so doing. Claims must be presented to and allowed 
 by the county court, before they can be legally paid out of the 
 ■assets of the estate. 27 
 
 § 382. It is the duty of the personal representative to in- 
 terpose every lawful defense of which he is apprised to a suit 
 against the estate. If he is delinquent in so doing, the heirs 
 have a remedy on his bond. 88 
 
 § 382a. Upon the probate of a claim, it draws interest, 
 ■like an ordinary judgment. 2 ' 
 
 23 Wood v. Vandenburg, 6 Paige, 277; Ferren v. Myrick, 53 Barb. 76; 
 McGrlenseys Appeal, 14 Serg. & Kawle, 64. 
 "Johnson v. Baker, 2 Car. & P. 207. 
 S6 Peacoek v. Haven, 22 111. 23. 
 
 "Rosenthal v. Magee, 41, 111. 370; Wells v. Miller, 45 111. 33. 
 "Reitzell v. Miller, 25 111. 67. 
 58 Gold .v. Bailey, 44 111. 491. 
 89 Wheeler t. Dawson, 63 111. 55. 
 
CH. XXVIII.] CLASSIFICATION OF CLAIMS. 179 
 
 CHAPTEE XXYIII. 
 Pabt II. Classification of Claims. 
 
 § 383. Claims classed by statute. 
 
 384. Claims allowed to be classed by the personal representative, — to be 
 
 paid in the order of classification. 
 
 385. Duty of court to class demands, and file and preserve the papers. 
 
 If claim is paid before allowance, proof to be made as in other 
 
 CftSCSaL 
 
 § 383. Section 70 provides that, " All demands against the 
 estate of any testator or intestate shall be divided into classes, 
 in the manner following, to-wit : 
 
 " First. — Funeral expenses. 1 
 
 " Second. — The widow's award, if there is a widow ; or child- 
 ren, if there are children and no widow. 
 
 " Third. — Expenses attending the last illness, not including 
 physician's bill. 
 
 " Fourth. — Debts due the common school or township fund. 
 
 " Fifth. — All expenses of proving the will, and taking out 
 letters testamentary or of administration, and settlement of the 
 estate, and the physician's bill in the last illness of the de- 
 ceased. 
 
 "Sixth. — "Where the decedent has received money intrust 
 for any purpose, his executor or administrator shall pay out of 
 his estate the amount thus received and not accounted for. 
 
 " Seventh. — All other debts and demands of whatsoever kind, 
 without regard to quality or dignity." This section further 
 provides for claims not exhibited to the court within two years 
 from the grant of letters. The payment of all such are, with 
 certain exceptions, postponed until the above mentioned classes 
 are paid. (See post §§ 389, 404, 405.) 
 
 ' See Widow's Award, ante, 327<s., where, in one contingency, the fu- 
 neral expenses and expenses of administration are preferred to the widow's 
 award. 
 
180 LIMITATIONS, SPECIAL. [CH. XXIX. 
 
 § 384. Section 71 provides that, " All claims against estates, 
 ■when allowed by the county court, shall be classed and paid by 
 the executor or administrator, in the manner provided in this 
 act, commencing with the first class ; and when the estate is in- 
 sufficient to pay the whole of the demands, the demands in any 
 one class shall be paid pro rata, whether the same are due by 
 judgment, writing obligatory or otherwise, except as otherwise 
 provided." 
 
 § 385. Section 73 provides that, the county court shall 
 make an entry of all demands against estates, classing the same 
 as above provided (in § 70), and file and preserve the papers 
 belonging to the same. If an executor or administrator pays 
 a claim before the same is allowed as aforesaid, the court shall 
 require him to establish the validity of such claim by evidence 
 similar to that required in other cases, before the same is classed, 
 and he credited therewith. 
 
 CHAPTEE XXIX. 
 LIMITATIONS 
 
 Part I. Special Limitation of Two Years. 
 
 } 386. Duty of personal representative to interpose statute of limitations. 
 If not done heirs may do so on settlement. 
 387. The two kinds of limitations, and their effects. 
 
 389. Of the special limitation of two years, its effect. 
 
 390, 391. Special limitation runs from the date of letters, and continues 
 
 to run. 
 
 392. Claims to which the special limitation applies — out of what estate 
 
 to be satisfied. 
 
 393. Piling claim in court — when it prevents the bar of the statute. 
 
 Cases cited. 
 
 394. If claim not barred by general statute of limitations, claimant "is 
 
 entitled to a judgment, to be paid out of subsequently discovered 
 assets. 
 
CH. XXIX.] LIMITATIONS, SPECIAL. 181 
 
 § 395. When the claim depends upon the happening of a contingency 
 which does not arise till after two years have elapsed, the special 
 limitation applies. 
 
 396. The case of Johnson v. Gillette. — Special circumstances. 
 
 397. Notwithstanding the special limitation, the creditor may follow the 
 
 estate into the hands of heirs and devisees. 
 
 § 386. It is the duty of the personal representative to inter- 
 pose the presumptions and positive limitations of the law 
 against any claim presented for allowance, and coming within 
 their purview. 1 And his failure to plead the statute of limita- 
 tions will not bar or preclude the heirs from setting it up, on 
 settlement with him." 
 
 § 387. There are two kinds of limitations to be kept in 
 view by the personal representative, namely : 1. Those gen- 
 eral limitations embraced in the statute entitled "Limitations," 
 and which fix the period after a right of action accrues, beyond 
 which, if a claimant brings suit thereon, the debtor or his per- 
 sonal representative may set up this statute in bar of the 
 action ; and 2. The limitation embraced in section 70, of the 
 statute entitled " Administrators," which, without denying the 
 right of the claimant in a suit brought after the limitation in 
 the last named statute has expired, to have his claim allowed 
 in the probate court, or to obtain a judgment therefor in any 
 other court, confines him in the satisfaction of the same to 
 such estate of the deceased as is not already inventoried or 
 accounted for by the personal representative. 
 
 § 389. The general limitation law, so far as it will be of 
 consequence in this connection, is given hereafter (§ 398). The 
 special limitation fixing the time within which claims may be 
 produced, filed and prosecuted against estates, is contained in 
 § 70, cl. 7 of the statutes, title Administration, and is as fol- 
 lows : . All demands not exhibited as aforesaid, within two 
 
 1 McCoy v. Morrow, 18 111. 519 ; Unknown Heirs of Langworthy v. 
 Baker, 23 111. 484; Brown v. Anderson, 13 Mass. 201 ; Thompson v. Brown, 
 16 Mass. 172; ante,§ 382. 
 
 5 Stillman y. Young, 16 111. 318 ; Nowell v. Nowell, 8 Maine, 225 ; Brown 
 v. Anderson, supra. 
 
182 LIMITATIONS, SPECIAL. [CH. XKIX. 
 
 years from the granting of letters testamentary or of adminis- 
 tration, shall be forever barred unless the creditors shall find 
 other estate of the deceased not inventoried or accounted for 
 by the executor or administrator ; in which case their claims 
 shall be paid pro rata out of such subsequently discovered es- 
 tate ; " saving, however, to femes covert, infants, persons of un- 
 sound mind, or imprisoned or without the United States in the 
 employment of the United States or of this state, the term of 
 two years after their respective disabilities are removed, to ex- 
 hibit their claims. We have seen that the mode of presenting 
 a claim against an estate is by presenting the same in writing, 
 at the term of court fixed by the personal representative for 
 adjustment of claims against the decedent, and making the 
 oath prescribed by law, (ante § 349). But a claimant who fails 
 to present his claim at such term may file a copy of the same 
 with the clerk of the court and have summons against the per- 
 sonal representative, and have his claim adjudicated (see ante, 
 § 351) ; which will avoid the limitation of two years. 4 
 
 § 390. The time in which claims against an estate may be 
 presented, is to be computed from the date of the letters of ad- 
 ministration, and not from the notice to creditors to exhibit 
 them. And the omission of the personal representative to give 
 such notice does not relieve the creditors from the necessity of 
 presenting their demands. The statute operates whether the 
 notice is given or not." When the statute of limitations begins 
 to run it will continue to run till it operates as a complete bar, 
 unless there is some saving qualification in the statute itself. 
 Thus, where the personal representative died shortly after letters 
 
 8 As to the meaning of " subsequently discovered estate." see post, 
 §§ 403-405. 
 
 4 The present statute does not re-enact sec. 116, of the statute of 1845, Tit. 
 " Wills," which permitted the service of notice of a claim on the personal 
 representative or presenting him with the account, on which the decisions 
 as to the manner of presenting the account and the effect thereof to 
 prevent the two years' limitation were based in Wells v. Miller, 45 111. 
 33, and Mason v. Tiffany, lb. 293. 
 
 6 People v. White, 11 111. 341 ; Thrash v. Sumalt, 5 Ala. 13 ; Oawthorne 
 v. Weisinger, 7 Ala. 714; Bank of Montgomery v. Plamett, 13 Ala. 222. 
 
CH. XXII. J LIMITATIONS, SPECIAL. 183 
 
 were granted to him, and there was no administrator for a part 
 of the two years, this did not prevent the creditors from exhib- 
 iting their claims against the estate, and thereby avoiding the 
 operation of the statute. The creditors had the legal right to 
 administer on the estate, and failing to exercise the right, they 
 ought not to complain that there was no administrator." 
 
 § 391. In the case of Shepard v. Rhodes, decided at the 
 June term, 1872, of the supreme court of Illinois (4 Leg. 
 News, 453), the testator died in Pennsylvania, and without 
 knowledge of his will, letters of administration were granted, 
 in Illinois, to Quimby, which, upon the discovery of the will, 
 were revoked, and letters with the will annexed were granted 
 to Shepard : Held, the letters to Quimby were not void, and 
 that the limitation of two years commenced to run from their 
 date. 7 
 
 § 392. Creditors not excepted by sec. 70 of the statute, en- 
 titled Administration, who fail to exhibit their claims within 
 two years after the grant of letters, are precluded from all par- 
 ticipation in the estate inventoried or accounted for by the 
 personal representative. Such claims must be satisfied out of 
 the estate not so inventoried or accounted for. 9 But if the 
 personal representative does not return an inventory of, or ac- 
 count for the estate during the two years, such creditors are to 
 participate equally with the other creditors in the proceeds 
 thereof." 
 
 § 393. Filing of a claim in the probate court on the day 
 appointed by the administrator for the adjustment of claims, 
 and within two years from the granting of letters testamentary 
 or of administration, will prevent the bar of the two years' 
 statute of limitations in section seventy, notwithstanding there 
 is no special order of continuance from term to term, and the 
 claim is dropped from the docket of the probate court for sev- 
 
 6 Treat, C. J., in Peoplo v. "White, 11 111. 341. 
 
 ' Price v. Nesbit, 1 Hill Ch. 445; Woollcy v. Clark, 5 B. & Aid. 744. 
 
 8 People v. White, supra; Sloo v. Pool, 15 111. 47; Wingate v. Pool, 25 
 111. 118. In the latter case the claimant was administrator of the estate. 
 
 9 Sloo v. Pool, supra. 
 
184 LIMITATIONS, SPECIAL. [CH. XXIX 
 
 eral terms before final adjudication. But in such case the per- 
 sonal representative should appear before the court when the 
 claim is adjudicated, or be served with summons, so that the 
 court may have jurisdiction of his person. 10 In this case, Mr. 
 Justice Lawrence, alluding to the decision in Propst v. Mead- 
 ows, 13 111. 157, says, " The point really decided was, that a 
 claim which had been filed at the time appointed by the ad- 
 ministrator, and which was not adjudged and not continued to 
 a future term by express order, could not be taken up at a fu- 
 ture term and allowed in the absence of the administrator, and 
 without notice to him. In Reitzeil v. Miller, 25 111. 67, the 
 court merely decided that the filing of the claim in the probate 
 court, at a time not appointed by the administrator for the ad- 
 justment of claims, was not such a commencement of a suit as 
 would stop the running of the general statute of limitations of 
 five years. Neither decision covers the case at bar." 
 
 § 394. A party bringing a suit against the personal repre- 
 sentative, is entitled to a judgment, although his claim was not 
 presented within two years after the date of letters of adminis- 
 tration, if it was not otherwise barred by the general statute of 
 limitations." 
 
 § 395. Where the intestate had, in her lifetime, executed a 
 bond of indemnity to another, the damages depending upon a 
 contingency which did not happen until more than two years 
 after the granting of letters of administration upon the obli- 
 gee's estate ; it was held that the obligee's claim did not 
 accrue within the two years, and no suit could be instituted 
 upon the bond within that time, and consequently his claim 
 was barred, except as to property discovered and inventoried 
 after the lapse of two years from the granting of the letters." 
 
 § 396. The case of Johnson v. Gillette, 52 111. 358, is some- 
 what remarkable considered with reference to circumstances 
 permitted to excuse the delay to present the claim for allow- 
 ance. Here more than twenty years had elapsed after letters of 
 
 '» Barber v. Thurman, 49 111. 288 ; Wells v. Miller, 45 111. 33. 
 
 11 Peacock v. Haven, 22 111. 23; Judy v Kelley, 11 111. 211. 
 
 12 Stone v. Clark's Admin. 40 111. 411. 
 
CH. XXIX.] LIMITATIONS, SPECIAL. 185 
 
 administration were granted, and the administrator presented a 
 claim on his own behalf, against the estate, founded on a judg- 
 ment obtained by him over twenty-two years before, against 
 the intestate, and the estate was still unsettled ; the court held 
 that the claim was properly allowed, and that the land could 
 be sold to pay it. But this case rests upon special circum- 
 stances, and does not seem to be referable to any well defined 
 principle. Of like character is the case of Clark v. Hogle, ib. 
 427. The case of Wingate v. Pool, 25 111. 118, appears to be 
 in conflict with these cases. 
 
 § 397. But it must be observed that the two years' limita- 
 tion does not apply so as to prevent the creditor from following 
 the assets of the deceased into the hands of his heir or devisee, 
 by a joint suit against the personal representative and the heir 
 or devisee, under the 6th section of the statute of frauds, or by 
 a separate action against the heir or devisee, under the 10th 
 section of the same statute. Chief Justice Treat, in Ryan v. 
 Jones, 15 HI. 1, says, " This statute (of frauds) must be construed 
 with reference to the' 'chapter upon administration.' That 
 chapter makes the personal estate primarily liable for the pay- 
 ment of debts. It must be exhausted before resort can be had 
 to the real estate. Demands against the estate of a deceased 
 person must be exhibited within two years from the grant of 
 administration. A creditor free from disability, who fails to 
 present his claim within that time, is not allowed to participate 
 in the proceeds of the personal estate previously inventoried 
 or accounted for by the executor or administrator. He must 
 satisfy his debt out of property subsequently discovered or 
 inventoried. In joint actions under the statute, the executor 
 or administrator may insist upon this limitation of two years ; 
 and if he does so successfully, the plaintiff must take judg- 
 ment against him, to be satisfied out of newly discovered estate. 
 But heirs and devisees cannot rely upon this limitation. They 
 may insist upon the general statute of limitations, and if suc- 
 cessful, may wholly defeat a recovery against them." 
 
 13 See Stone v. "Wood, 16 111. 177; see also Thomas v. Adams, 30 111. 37; 
 "Vansycle v. RichardsoD, 13 111. 171. 
 
186 LIMITATIONS, GENERAL. [CE XXIX. 
 
 The practice and form of judgment in these cases is very 
 fully set forth in this case, and attention is particularly called 
 to that fact 
 
 CHAPTEE XXIX. 
 LIMITATIONS. 
 
 Part II. General Law of Limitations. 
 
 § 398. General statute of limitations. 
 
 399. A claim must be filed in the probate court, at the term fixed by the 
 
 legal representative for adjustment of claims, and be followed by 
 an adjudication at that term or regularly continued, etc., in order 
 to be considered the commencement of a suit and save the bar. 
 
 400. Limitations as applied to set-off. 
 
 § 398. For the purpose of convenient reference the follow- 
 ing sections of the present general statute of limitations are in- 
 serted, which seem to be all that are of value in this connection. 
 "We have also noted some differences between the provisions of 
 this statute and those in force prior to July 1, 1872, for -the 
 reason that, on general principles as well as by the saving clause 
 of the present statute, actions which accrued under the former 
 statutes, are still limited by their provisions. (See Beesky v. 
 Spencer, 26 111. 216 ; § 24, Stat. Limitations.) 
 
 a. " § 12. The following actions can only be commenced 
 within the period hereinafter prescribed, except, when a differ- 
 ent limitation is prescribed by statute." 
 
 b. § 14. This section relates exclusively to actions for slan- 
 der and libel, which do not survive to or against the personal 
 representative. The common law rule is that actions of con- 
 tract, upon the death of either party, survive to or against the 
 personal representative of each. 1 But an action for a breach 
 of marriage contract is not within the rule. 3 In general, at com- 
 
 1 1 Ch. PI. 68 ; 3 Bla. Com. 302. 
 
 ! Lattimore v. Simmons, 13 8. & R. 183; Stebbins v. Palmer, 1 Pick. 71 ; 
 1 Ch. PI. 51. 
 
CH. SXIS.J LIMITATIONS, GENEKAL. 187 
 
 mon law, no action in form ex delicto, as trover, case, or tres- 
 pass could be supported against the personal representative for 
 an injury to personal or real property committed by the dece- 
 dent. And in cases of injury to the person, as by assault and 
 battery, false imprisonment, slander or otherwise, if either the 
 party who received or committed the injury, dies, no action 
 could be supported either by or against the personal represent- 
 ative. The remedy at once determines.' 
 
 c. But the statute, title Administration, § 123, provides 
 that, " In addition to the actions which survive by the common 
 law, the following shall also survive : Actions of replevin, ac- 
 tions to recover damages for an injury to the person, except 
 slander and libel, actions to recover damages for an injury to 
 real or personal property, or for the detention or conversion of 
 personal property, and actions against officers for misfeasance, 
 malfeasance or nonfeasance of themselves or their deputies, 
 and all actions for fraud or deceit." 
 
 d. § 14 Actions for damages for an injury to the person, 
 or for false imprisonment, or malicious prosecution, or for a stat- 
 utory penalty* or for abduction, or for seduction, or for criminal 
 conversation, shall be commenced within two years next after 
 the cause of action accrued 
 
 e. § 15. Actions on unwritten contracts, expressed or im- 
 plied, or on awards of arbitration, or to recover damages for an 
 injury done to property, real or personal, or to recover the pos- 
 session of personal property, or damages for the detention or 
 conversion thereof, and in all civil actions not otherwise pro- 
 vided for, shall be commenced within five years next after the 
 cause of action accrued. 
 
 / § 16. Actions on bonds, promissory notes, bills of ex- 
 change, written leases, written contracts, or other evidences of 
 indebtedness in writing, shall be commenced within ten years 
 next after the cause of action accrued ; but if any payment or 
 
 » 1 Ch. PI. 90, 69. 
 
 4 The personal representative as such cannot sue upon a penal statute. 
 1 Ch. PI. 21. And the remaining three causes of action mentioned in this 
 section do not survive to him. 
 
188 STATUTES. [CH. XXIX 
 
 new promise to pay shall have been made, in writing on any 
 "bond, note, bill, lease, contract or other written evidence of 
 indebtedness, within or after the said period of ten years, then 
 an action may be commenced thereon at any time within ten 
 years after the time of such payment or promise to pay. 
 
 g. By Act of 2d Session, 1849, p. 44, § 1, actions founded 
 on notes, unsealed contracts in writing, bonds, judgments, or 
 other evidences of indebtedness in writing, made, caused or 
 entered into after the passage of that act, the limitation is six- 
 teen years. And by § 2, actions founded upon accounts, bills 
 of exchange, orders, or upon promises not in writing, express 
 or implied, were limited to five years after the cause of action 
 accrued. § 3 subjects the limitation to conditions and restric- 
 tions contained in §§ 12 and 13, revised statutes, 1845, title 
 Limitations, the first of which relates to the expiration of the 
 limitations during the pendency of a suit in which judgment is 
 reversed thereafter upon appeal, or in which judgment upon a 
 verdict in favor of the plaintiff is arrested, or the plaintiff is 
 nonsuited, and extends the time within which a new action 
 may be commenced to one year after judgment reversed or ren- 
 dered against the plaintiff, and the second, which relates to 
 cases where the person against whom any of the causes of ac- 
 tion specified in that chapter exists, shall be out of the state 
 at any time during which suit might be sustained on such 
 cause of action, and provides that suit might be brought against 
 him after his return to the state, and the time of his absence 
 from the state not accounted as part of the time limited by 
 that chapter. (See i. § 18, post.) 
 
 h. § 17. A defendant may plead a set off or counter- 
 claim, barred by the statute of limitation, while held and 
 owned by him, to any action, the cause of which was owned 
 by the plaintiff, or person under whom he claims, before such 
 set off or counterclaim was so barred, and not otherwise : Pro- 
 vided, this section shall not affect the right of a bona fide as- 
 signee of a negotiable instrument assigned before due. 
 
 i. % 18. If, when the cause of action accrues against a per- 
 son, he is out of the state, the action may be commenced within 
 
CH. 2X15.] LIMITATIONS, GENERAL 189 
 
 the time herein limited after his return to the state ; and if, 
 after his cause of action accrues, he departs from and resides 
 out of the state, the time of his absence is not part of the time 
 limited for the commencement of the action. 
 
 ,/. § 19. If a person entitled to bring an action dies before 
 the time limited for the commencement thereof, and the cause 
 of action survives, an action may be commenced by his repre- 
 sentatives after the expiration of that time, and within one year 
 from his death. If a person against whom an action may be 
 brought dies, before the expiration of the time limited for the 
 commencement thereof, and the cause of action survives, an 
 action may be commenced against his executor or administra- 
 tor after the expiration of that time, and within one year after 
 the issuing of letters testamentary or of administration. 
 
 h. § 20. "When a cause of action has arisen in a state or 
 territory out of this state, or in a foreign country, and by the 
 laws thereof, an action thereon cannot be maintained by reason 
 of the lapse of time, an action thereon shall not be maintained 
 in this state. 
 
 I. § 21. If the person entitled to bring an action, mentioned 
 in the nine preceding sections, is, at the time the cause of action 
 accrued, within the age of twenty-one years, or, if a female, 
 within the age of eighteen years, or insane or imprisoned on a 
 criminal charge, he or she may bring the action within two 
 years after the disability is removed. 
 
 m. § 22. If a person liable to an action fraudulently con- 
 ceals the cause of such action from the knowledge of the per- 
 son entitled thereto, the action may be commenced at any time 
 within five years after the person entitled to bring the same 
 discovers that he has such cause of action, and not afterwards. 
 
 n. The 20th and 22nd sections are not found in any former 
 statute, but the 21st may be compared with § 14 of the revised 
 statute, 1845, which provides that the person having cause of 
 action, if under the age of twenty-one years, insane or feme cov- 
 ert, he or she may institute such action within the time limited 
 in the different sections of that chapter, after his or her becom- 
 ing of full age, sane or feme sole. But it must be observed that 
 
190 STATUTES. [CH. XXIX 
 
 these exceptions are not included in the act of 1849 referred to, 
 ante (g). 
 
 o. § 23. When the commencement of an action is stayed by 
 injunction, or order of the court, or statutory prohibition, the 
 time of the continuance of the injunction or prohibition is not 
 a part of the time limited for the commencement of the action. 
 
 § 399. In the case of Reitzell v. Miller,'' a claim, on which 
 the right of action accrued in the the lifetime of the decedent, 
 was filed in the probate court, within two years after letters were 
 granted, but no further steps were taken for nearly seven years 
 thereafter. The general limitation applicable to such claims 
 was five years, and the court held that the claim was barred 
 by the general statute of limitations. The court said, " The 
 filing of a claim in the probate court, if it may be regarded 
 as the commencement of a suit, so as to bar the running of the 
 statute of limitations, must be at the time fixed by the adminis- 
 trator for filing claims for adjustment. And it must also be 
 followed by an adjudication at that term, or be regularly con- 
 tinued from term to term until it is passed upon by the court. 
 If it is not so acted upon or continued, a discontinuance takes 
 place, and the cause is no longer in court. Propst v. Meadows, 
 13 111. 157. After it is thus discontinued, to again become a 
 pending suit the administrator must be brought into court," 
 by his voluntary appearance there or by summons, as now pro- 
 vided in section 61 of the statute. This case being taken as a 
 true exposition of the law, it would follow, that filing a copy 
 of a claim with the clerk of the county court, at any other 
 time within the two years, will not arrest the general statutes, 
 unless the personal representative will waive the issuing o* 
 process, or unless summons is issued, under the provisions ol 
 section 61, and the cause is regularly continued from term to 
 term until adjudicated. 
 
 § 400. A plea of set-off is nothing more or less than a cross 
 action, and if in the action the claimant would not be barred, of 
 a recovery, so neither can he be barred from pleading his set- 
 off to an action by the personal representative." 
 
 6 25 111. 67. 6 Peacock v. Haven, 22 111. 23. 
 
CH. XXX.] FOEM OF JUDGMENT. 191 
 
 CHAPTER XXX. 
 
 FORM OF JUDGMENT. 
 
 § 401. No particular form is in general necessary, where the judgment is 
 rendered by the county Court. 
 
 402. Must direct that it be satisfied in due course of administration, if 
 
 rendered by any other court. 
 
 403. "Where the special limitation applies — form. 
 
 404. 405. Estate inventoried and accounted for within two years, is such 
 
 as the personal representative within that time inventoried or 
 
 charged himself with in any settlement. 
 40G. Form where the claim is against a partnership. 
 407. Judgment against an administrator for costs, must be against him in 
 
 his representative capacity. 
 
 § 401. No particular form is necessary for a judgment by 
 the county court, allowing or rejecting a claim. 1 It is sufficient 
 if so worded as to be understood. If the claim is allowed, it 
 will be deemed to be payable out of the estate inventoried or 
 accounted for. But if not exhibited to the county court at 
 the time fixed by the personal representative for the adjustment 
 of claims,- or filed with the clerk so as not to be barred by the 
 two years' limitation, the judgment allowing it should direct 
 that it be satisfied in due course of administration, out of prop- 
 erty belonging to the estate of the deceased, not inventoried 
 or accounted for by the executor or administrator," within two 
 years from the grant of letters of executorship or administra- 
 tion. 3 
 
 § 402. Where a judgment against an estate is rendered by 
 any other than the county court, it should direct that it be sat- 
 isfied in due course of administration. 4 And if the two years' 
 
 1 Johnson v. Gillette, 52 111. 358. 
 
 » Bradford v. Jones, 17 111. 98. See Form No. 58. 
 
 8 Stone v. Clark, 40. 111. 411 ; Sloo v. Pool, 15 111, 47. 
 
 4 "Welch v. Wallace, 3 Gilm. 490 ; "Wells v. Miller, 45 111. 33. But a judg- 
 ment awarding an execution is erroneous, and will be reversed on appeal. 
 Peck v. Stevens, 5 Gilm. 127 ; "Welch v. Wallace, supra; Bull v. Harris, 31 
 111. 487. 
 
192 FORM OF JUDGMENT. [CH. XXX. 
 
 limitation bars it as against the estate inventoried or accounted 
 for, the judgment should also direct its satisfaction to be made 
 out of property belonging to the estate, not inventoried or ac- 
 counted for by the executor or administrator, within two years 
 from the grant of letters of executorship or administration, and 
 dispose of the costs, by ordering that the plaintiff pay them. 
 
 § 403. In Bradford v. Jones, 6 where the only question directly 
 under consideration by the court was, what is subjected by the 
 statute to a judgment to be satisfied out of the estate of the de- 
 ceased not inventoried or accounted for by the personal repre- 
 sentative, Justice Caton said, " The test prescribed by the stat- 
 ute is, whether it has been inventoried or accounted for by the 
 executor or administrator." And he rejects the test whether 
 the estate was previously known to or discovered by the per- 
 sonal representative or not. He also says, " It is a matter of 
 no moment, and can make no difference with the creditor's 
 rights, whether the estate not inventoried is discovered before 
 or after -he obtains his judgment, or even the commencement of 
 his suit, or even whether he himself first finds such property." 8 
 
 8 Supra. 
 
 6 There are several other decisions of the supreme court of Illinois bear- 
 ing upon the form and effect of the judgment, but their language is less 
 specific, though not in conflict with the case of Bradford v. Jones, when 
 considered with reference to the real question before the court. Thus in 
 Thorn, v. "Watson, 5 Gilm. 26, where the words used are, " that might after- 
 wards be found" ; in Judy v. Kelley, 11 111. 811, " assets thereafter to be dis- 
 covered ;" in People v. White, 11 111. 341, " subsequently discovered estate ;" 
 Kyan v. Jones, 15 111. 1, " subsequently discovered or inventoried," and 
 " personal estate previously inventoried or accounted for ; " Stillman v. 
 Young, 16 111. 318," estate inventoried ;" Peacock v. Haven, 22 111. 23, "ac- 
 tually inventoried," " subsequently discovered and inventoried," " assets 
 to be discovered and inventoried," " estate inventoried ;" Sloo v. Pool, 15 
 111. 47, " any personal estate discovered or inventoried after the expiration 
 of two years." Treat, C. J., says in this case, " The administrator did not 
 return an inventory of the real estate within two years from the grant of 
 administration. The real estate was therefore not inventoried or accounted - 
 for during that period of time ; and Pool is consequently entitled to par- 
 ticipate equally with the other creditors in the proceeds thereof. He is 
 also entitled to share in the proceeds of any personal estate discovered or 
 inventoried after the expiration of two years. The court erred in confining 
 
OH. XXX.] FORM OF JUDGMENT. 193 
 
 § 404. Upon the question what assets of the deceased are 
 meant by the statute to be excluded from those inventoried 
 and accounted for by the personal representative, and which are 
 consequently liable for the payment of debts barred by the two 
 years' limitation, the case of Stone v. Clark, 40 111. 411, having 
 turned upon this point, is authoritative, and declares that the 
 judgment in a case where the two years' bar is sustained, should 
 not confine the claimant to assets which might be discovered 
 and inventoried after rendition of the judgment, instead of to 
 such assets as might be discovered and inventoried after the 
 lapse of two years from the granting of letters of administra- 
 tion. Of the same import is the case of /Sloo v. Pool, 15 111. 47 
 
 § 405. Upon the import of the words "accounted for" we 
 have no authoritative adjudication ; but it is probable that the 
 legislature meant by these words to include such estate as the 
 personal representative may have charged himself with in his 
 account current or settlement with the court, but which having 
 been omitted from the inventory, or come to his knowledge 
 after the inventory was filed, has not been reported to the court 
 in the form of an additional inventory. 
 
 § 406. Where the judgment is for a debt of a partnership 
 of which the deceased was a member, it should direct that it be 
 satisfied in due course of administration, but out of such estate 
 only of the deceased as remains after paying his individual 
 debts and the costs of administration. 7 (See Form No. 59.) 
 
 § 407. Judgment against an administrator for costs must 
 be rendered against him in his representative capacity. 8 The 
 statute, section 126, provides that, no executor or administrator 
 or his security, shall be chargeable beyond the assets of the 
 testator or intestate, by reason of any omission or mistake in 
 pleading, or by false pleading of such executor or administrator. 
 
 Pool, in the satisfaction of his judgment, to assets discovered or invento- 
 ried subsequent to the filing of his claim." 
 
 'Moline "W. P. M. Co. v. Webster, 26 111. 233. 
 
 8 Church v. Jewett, 1 Scam. 55 ; Gibbons v. Johnson, 3 Scam. 61 : Hunter 
 v. Bilyeu, 39 111. 368. 
 13 
 
194 COLLECTION OF ASSETS. [CH. XXXI. 
 
 CHAPTEE XXXI. 
 
 COLLECTION OF ASSETS. 
 
 § 408. Duty of personal representative to collect assets. 
 409-411. Extent of Ms liability. 
 
 412. Where property is wrongfully detained, or concealed or embezzled, 
 
 or persons have knowledge of such facts, citation may issue, etc. 
 
 413. This proceeding not designed to aid in the mere collection of debts 
 
 due the deceased. 
 
 414. If the person cited refuses to answer, or to deliver up goods, — pro- 
 
 ceedings stated. 
 
 415. 416. Of sale and compounding desperate and doubtful claims. 
 
 Eights of purchaser. 
 
 417. Of sale and compounding debts due at a distant period. 
 
 418. Property of a decedent coming from a foreign jurisdiction into the 
 
 state of his domicile, vests in the administrator in the latter place. 
 
 419. Personal representatives may receive debts due decedents from par- 
 
 ties residing abroad — when. 
 
 420. Personal representatives may sell and endorse notes belonging to 
 
 the decedent — the effect. 
 ■421. He may proceed by distress for rent due the deceased. 
 
 422. He must sue for and collect damages for the death of decedent, 
 
 caused by wrongful neglect, etc. 
 
 423. May cause executions to be issued on judgments in courts of record 
 
 in favor of deceased — the proceedings. 
 
 424. 425. Same subject continued. 
 
 426. Personal representatives may bid for land when sold on judgments 
 
 in favor of the decedent. 
 
 427. A chattel real when purchased at such sale by the personal represent 
 
 tative is assets ; and rents derived from lands purchased in pay- 
 ment of debts must be accounted for as assets. 
 
 428. Rights of administrators de bonis non and others aggrieved to call 
 
 upon removed administrators to account, stated, and the differ- 
 ence between their rights and those of a represeutative of a de- 
 ceased administrator stated. 
 
 § 408. It is the duty of the administrator to reduce the as- 
 sets to money and report the same to the court, to be paid upon 
 debts and distributed among the parties entitled thereto. 1 
 
 i Johnston v. Maples, 49 111. 101. 
 
CH. XXXI.] COLLECTION OP ASSETS. 195 
 
 § 409. Personal representatives acting in good faith in the 
 collection of debts due their intestates, exercising proper vigi- 
 lance, directed by a reasonable judgment, ought not to be 
 charged with debts they have failed to collect. 3 But they are 
 prima facie liable for all the claims they have inventoried with- 
 out comment, or as good. 3 
 
 § 410. Where an administrator had notes due to his intes- 
 tate from one living in another state, and placed them in the 
 hands of an agent for collection, and the agent was a man of 
 standing and property at the time, but afterwards, having used 
 the money collected, became insolvent : Held, that the adminis- 
 trator was not liable for the loss. He had used proper dili- 
 gence, and acted with ordinary care, and therefore would not 
 be held liable for the loss to the estate. But the court ex- 
 pressed a doubt if it was the administrator's duty to collect the 
 notes in another state. 4 
 
 § 411. We have seen that, by section 58 of the statute, 
 the personal representative is chargeable with so much of the 
 real and personal estate of the decedent, as he, after due dili- 
 gence, did or might receive. And we shall hereafter see that, by 
 section 114, all moneys, bonds, notes and credits which the per- 
 sonal representative may have in his possession or control as 
 property or assets of the estate, at a period of two years and 
 six months from the date of his letters, shall bear interest 
 and he shall be charged interest thereon from that period at 
 the rate of ten per cent, or after two years and six months 
 from any subsequent time that he may have discovered and 
 received the same, unless good cause is shown to the court why 
 such should not be taxed. The latter section is first found in 
 the statute of 1872, and was intended to insure diligence in 
 collecting assets. 
 
 ! Bowan v. Kirkpatrick, 14 111. 1. In this case Trumbull, J., said — 
 " It ought to be made satisfactorily to appear that the debtor had property 
 liable to execution, and that the personal representative must probably 
 have known the fact, and still carelessly neglected to coerce payment." 
 
 3 See ante, § 378. 
 
 4 Christy v. McBride, 1 Scam. 75. 
 
196 COLLECTION OF ASSETS. [CH. XXXL 
 
 § 412. The statute of 1872, section 81, as amended by tie 
 act. of 1873, provides that, if any executor or administrator, or 
 other person interested in any estate, shall state upon oath to 
 any county court, that he believes that any person has in his 
 possession, or has concealed or embezzled any goods, chattels, 
 moneys or effects, books of account, papers or evidences of 
 debt whatever, or titles to land belonging to any deceased per- 
 son ; or that he believes that any person has knowledge or in- 
 formation of or concerning any indebtedness or evidences of 
 indebtedness, or property titles or effects, belonging to any de- 
 ceased person, which knowledge or information is necessary to 
 the recovery of the same, by suit or otherwise, by the execu- 
 tor or administrator, of which the executor or administrator is 
 ignorant, and that such person refuses to give to the executor 
 or administrator such knowledge or information, the court shall 
 require such person to appear before it by citation, and may 
 examine him on oath, and hear the testimony of such executor 
 or administrator, and such other evidence offered by either 
 party, and make such order in the premises as the case may re- 
 quire. (See Forms Nos. 60, 61.) 
 
 § 413. Under the section in the revised statutes of 1845, 
 from which the first seven lines of the foregoing section were 
 copied, it was held in Williams v. Conly, admr.," that the pro- 
 ceeding authorized thereby was not designed to aid in the 
 collection of debts due to the estate ; but for the purpose of 
 obtaining possession of the identical property or money which 
 belonged to the deceased in his lifetime. 
 
 § 414. Section 82 provides that, " If such person refuses to 
 answer such proper interrogatories as may be propounded to 
 him, or refuses to deliver up such property or effects, or in case 
 the same has been converted, the proceeds or value thereof, upon 
 a requisition being made for that purpose by an order of the said 
 court, such court may commit such person to jail until he shall 
 comply with the order of the court therein." (See Form No. 62.) 
 
 § 415. The statute, section 83, provides that, " Upon sug- 
 gestion made by an executor or administrator, to the county 
 
 s 20 111. 643. 
 
CH. XXXI.] COLLECTION OF ASSETS. 197 
 
 court, that any claim, debt or demand whatever belonging to the 
 estate in his hands to be administered, and accruing in the life- 
 time of the decedent, is desperate on account of the insolvency or 
 doubtful solvency of the person or persons owing the same, 
 or on account of the debtor having availed himself of the bank- 
 rupt laws of the United States, or on account of some legal or 
 equitable defense which such person or persons may allege 
 against the same, or for the cause that the smallness of such 
 claim, debt or demand, and the difficulty of finding the debtors 
 owing to the remoteness of their residence, or the executor's or 
 administrator's ignorance of the same, the said court may order 
 such claim, debt or demand to be compounded or sold, or to be 
 filed in the said court for the benefit of such heirs, devisees or 
 creditors of such decedent as will sue for and recover the same, 
 giving the creditors the preference, if they or any of them apply 
 for the same before the final settlement of such estate : Provided, 
 that no order for the sale or compounding of any such debts, 
 claims or demands, or any of them shall be made until two 
 weeks' public notice shall be given to all whom it may concern, 
 of the time and place when the said order will be applied for ; 
 which notice shall be given by the administrator or executor, 
 in a newspaper published in the county where such application 
 is to be made, or if no such newspaper is published in such 
 county, then by posting up such notices in not less than three 
 public places in the county, of which one shall be at the office 
 of the clerk of the county court ; which notice shall be pub- 
 lished at least two weeks previous to the time of said applica- 
 tion. The executor or administrator shall report to the said 
 county court, for its approval, the terms upon which he has set- 
 tled or disposed of any such claim, debt or demand. (For Forms 
 under this section, see Nos. 63, 64, 65, 66.) 
 
 § 416. Section 84 provides that, " If such claim is com- 
 pounded or sold, such executor or administrator shall be 
 chargeable with the avails of such compounding (or sale), and 
 if the same is taken by any of the creditors, heirs or devisees, 
 he or they may maintain an action for the recovery thereof in 
 > the name of such executor or administrator, for the use herein- 
 
198 COLLECTION OF ASSETS. [CH. XXXI. 
 
 after mentioned ; and upon recovering the same or any part 
 thereof, he or they shall be chargeable therewith, after deduct- 
 ing his claim or distributive share, with reasonable compensa- 
 tion for collecting the same ; and upon such suits the executor 
 or administrator shall not be liable for costs." 
 
 § 417. Section 85 provides that, " The county court may 
 order claims, debts and demands due at so remote a period as 
 to prevent their collection within the time required for the final 
 settlement of estates, and the collection or disposition of which 
 is necessary to the payment of debts against the estate, to be 
 compounded or sold in the same manner and upon like condi- 
 tions as though such claims, debts or demands were desperate 
 or doubtful : Provided, that no such claim, debt or demand 
 shall be sold or compounded for less than ten per cent, below 
 the value thereof." (See Forms under § 415.) 
 
 § 418. The property of a decedent coming from a foreign 
 jurisdiction into the state of his domicile immediately vests in 
 the administrator there, if administration has not been taken 
 out in such foreign jurisdiction. 6 But he has no title to the 
 property of the deceased situated in another country. He has 
 no authority over it, nor is he responsible for any effects of the 
 estate which may be beyond the limits of the jurisdiction ap- 
 pointing him. He cannot be sued out of the country from which 
 he derives his authority and to which he is alone amenable ; nor 
 can he sue in the courts of another country, unless permitted 
 so to do by the local law of the place. If he wishes to reach 
 property, or collect debts belonging to the estate in a foreign 
 country, he must there, unless otherwise provided by statute of 
 such country, obtain letters of administration, and give such 
 security, and become subject to such regulations as its laws 
 may prescribe.' 
 
 6 Wells v. Miller, 45 111. 382. The facts in this case were these. The 
 decedent was domiciled in Illinois, and died on the Missouri shore, while 
 taking lumber by river from Illinois to Tennessee ; he had no other assets, 
 nor any creditors in Missouri or Tennessee, and the defendant, who was 
 charged with wrongfully taking the lumber, resided in this state, and the 
 administratrix, residing in this state bronght suit in trover. 
 
 i Judy v. Kelley, 11 111. 211. 
 
CH. XXXI. J COLLECTION OF ASSETS. 199 
 
 § 419. But an administrator may, independent of statutory 
 regulations, receive payment of a debt due the decedent from 
 one living in another state, and his release thereof will be valid, 
 even if administration has been granted in the state of the 
 debtor's residence, and where the debt was paid, provided there 
 were no creditors or distributees residing in that state. 8 
 
 § 420. We have already seen that the personal representa- 
 tive may sell and endorse a promissory note belonging to the 
 estate, so as to authorize the holder to sue thereon in his own 
 name. 9 So he may endorse bills made payable to the decedent. 10 
 But it is entirely well settled, that he cannot sell the assets of 
 the estate in payment of his own debt, that being known at 
 the time to the creditor." (See further on this subject, ante, 
 §§ 330-332.) 
 
 § 421. The remedy by distress for rent lies in favor of the 
 personal representative, for rent due before the death of the 
 deceased.* 
 
 § 422. It is the duty of the personal representative to sue 
 for arid collect damages, where the death of the deceased was 
 caused by the wrongful act, neglect or default of any .other 
 person. (For principles governing this class of claims, see post, 
 §§429,432.) 
 
 § 423. The statute, title Judgment and Decrees, § 37, pro- 
 vides that, " The collection of a judgment or decree of a court 
 of record shall not be delayed or hindered, or the lien created 
 by law abate, by reason of the death of any person in whose 
 favor such judgment or decree shall be ; but the executor or 
 administrator, or, if the decedent was an executor or adminis- 
 trator, the administrator de bonis non, or with the will annexed, 
 may cause his letters testamentary or of administration to be 
 recorded in such court, after which execution may issue and 
 proceedings be had in the name of the executor or administra- 
 
 8 Wilkinsv. Elleth, 9 "Wallace, 740. 
 
 * Makepeace v. Moore, 5 Gilm. 474 ; Walker v. Craig, 18 111. 116 . 
 
 10 Stone v. Rawlinson, "Willes, 559. 
 
 11 Doe v. Fallows, 2 Cromp. & J. 481 ; Ehame v. Lewis, 3 Rich. Eq. 299 
 *3 Redf. Wills, §31, pi. 4. 
 
200 COLLECTION OF ASSETS. [CH. XXXL 
 
 tor as such, in the same manner as if the judgment or decree 
 had been recovered in his name." 
 
 § 424. The foregoing section was intended to save the ex- 
 pense and delay of a scire facias to revive the judgment, or bill 
 in equity to revive the decree. In Durham v. Seaton, 28 111. 
 264, it was held that an execution issued upon the filing of the 
 letters in the court was valid, even though such letters were not 
 recorded. It was, obssrves the court, the duty of the adminis- 
 trator to bring them into court to show his character of executor 
 or administrator, and it was the clerk's duty torecord them. But 
 if the clerk failed so to do, the personal represantative should not 
 suffer or be put in peril. And the court remarks upon the 
 form of the execution in that case, that it w#uld be proper to 
 contain a recital to this effect ; which A. B. in his lifetime re- 
 covered against C. D., and which judgment has been revived in 
 the name of E. F., administrator, etc. 
 
 § 425. In Brown v. Parker, 15 111. 307, it was held that, 
 where either party to the judgment dies, before execution is- 
 sues, the judgment must be revived by scire facias, or execu- 
 tion must be issued in the mode pointed out by the statute ; 
 but unless one or the other course is pursued, an execution is- 
 sued upon such judgment, and all proceedings under it, will 
 be absolutely void.* 
 
 § 426. The statute, title Judgments and Decrees, § 38, pro- 
 vides that, " When it is necessary, in order to secure the collec- 
 tion of a judgment or decree belonging to any estate, it shall be 
 the duty of the executor or administrator to bid for and become 
 the purchaser of real estate at the sale thereof by the sheriff, 
 master in chancery or other officer. The premises so purchased 
 shall be assets in his hands, and may be again sold by him, 
 with the approval of the county court, and the moneys arising 
 from such sale shall be accounted for and paid over as other 
 moneys in his hands." 
 
 § 427. Chattels real — which are estates for years however 
 long — when purchased by the administrator in payment of a 
 judgment in favor of the estate, are assets. 1 " And if he pur- 
 
 12 Creel v. Kirkham, 47 111. 118 ; and see Willenborg v. Murphy, 36 111. 344. 
 * See also Stat. 1874, p. 625, § 27. 
 
CH. XXXI.] COLLECTION OF ASSETS. 201 
 
 chases lands in payment of debts, he must account to the dis- 
 tributees for the rents received by him, after deducting taxes, 
 necessary repairs, and other proper charges and debts of the 
 deceased. 18 
 
 § 428. An administrator de bonis non, appointed to succeed 
 an administrator whose letters Have been revoked, 14 or any 
 other person aggrieved, has authority to call upon the re- 
 moved administrator to account fully for his administration 
 of the estate; and may maintain all necessary actions for 
 the purpose, and may moreover make him answer in dam- 
 ages, for any maladministration of the estate. 1S But the rep- 
 resentative of a deceased administrator cannot be called upon 
 by an administrator de bonis non to account for assets al- 
 ready administered by such deceased administrator ; but this 
 may be done by heirs and distributees. 1 " In such case the 
 power of an administrator de bonis non extends only to the re- 
 covery of such goods and chattels of the intestate as remain un- 
 administered in specie, and to debts due the intestate which re- 
 main unpaid. His authority does not extend to assets already 
 administered." He cannot maintain an action on a note given 
 to the former administrator for money due the estate; 11 nor 
 against the attorney of the former administrator for money col- 
 lected by him on a note belonging to the intestate which was 
 placed in such attorney's hands for collection by the former ad- 
 ministrator. 19 
 
 13 Kruse v. Steffens, 47 111. 112. 
 
 "The acceptance by the probate court of the resignation of an adminis- 
 trator, amounts to a revocation of his letters, Marsh v. The People, 15 111. 
 284. 
 
 16 Ibid. ; Duffln v. Abbott, 48 111. 17. The latter case overruling Stose v. 
 Stose, 25 111. 600 ; and Short v. Johnson, ib. 489. In the first case there was 
 a revocation of the letters and in the other a resignation which was ac- 
 cepted by the court. 
 
 16 Rowan v. Kirkpatrick, 14 111. 1 ; Newhall v. Turney, 14 111. 338 ; Marsh 
 v. People, supra ; Duffln v. Abbott, supra. 
 
 " Newhall v. Turney, supra. 
 
 18 Ibid. Barker v. Talcott, 1 Vernon, 473; Oglesby v. Gilmore, 5 Geor- 
 gia, 56. 
 
 19 Sloan v. Johnson, 14 Smedes & M. 47. 
 
202 EECOVEKT OF DAMAGES. [CH. XXXII. 
 
 CHAPTER XXXII. 
 
 OF THE RECOVERY OF DAMAGES FOR CAUSING DEATH BY 
 
 NEGLIGENCE. , 
 
 § 429, 430. The personal representative of the deceased must bring suit in 
 these cases, and the damages go to the widow and next of kin. 
 
 431. Husband is entitled to damages in case the wife is killed. Money 
 
 recovered is not treated as a part of the estate of the deceased, 
 and is not liable for his debts, — nor does it pass by the provis- 
 ions of a will. 
 
 432. Personal representative may control the suit, and compromise it. 
 
 He is liable on his bond for the money received. 
 
 § 429. In addition to the ordinary duty of the personal rep- 
 resentative to collect claims and demands which were owing to 
 the deceased, the act of 1853, 1 entitled "An act requiring 
 compensation for causing death by wrongful act, neglect or 
 default," imposes upon him the duty of bringing suit for dam- 
 ages caused to the widow and next of kin of a person killed 
 by wrongful act, neglect or default of others. No other person 
 has power to bring such an action. The damages recovered . 
 in such case go to the widow and next of kin exclusively, 
 and not to creditors and legatees, and hence the rules of distri- 
 bution of the effects of the deceased are not in any respect 
 changed by this act. 
 
 § 430. Section 1 provides, " That whenever the death of a 
 person shall be caused by wrongful 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 
 case, the person who, or company or 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 
 
 1 Laws of 1853, p. 97; Gro. Stat. 60. 
 
OH. XX5I.J KECOVERY OF DAMAGES. 203 
 
 injured, and although the death shall have been caused under 
 such circumstances as amount in law to felony." And section 
 2 provides that, " Every 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 de- 
 ceased person, and shall be-distributed to such widow and next 
 of kin in the proportion provided by law in relation to the dis- 
 tribution 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, with reference to the 
 pecuniary injuries resulting from such death, to the wife and 
 next of kin of such deceased person, not exceeding the sum of 
 five thousand dollars : Provided, that every such action shall be 
 commenced within two years after the death of such person." 
 
 § 431. This statute first came before the supreme court for 
 construction, in the case of The Oily of Chicago v. Major, 18 111. 
 349. The deceased — a child four years of age, fell into a 
 water tank, constructed by the city, and was drowned, and it 
 was held, that the action is not limited to those cases where the 
 deceased leaves a widow ; that a husband may have redress for 
 the loss of a wife ; and orphans, where both parents are killed ; 
 that the action is to be brought by the executor or administra- 
 tor of the deceased It was also held, that the damages under 
 this act can only be for pecuniary loss, not for the bereavement, 
 and that the jury must make their estimate of such pecuniary 
 damage from the facts proved, and that it is not necessary that 
 any witness should have expressed an opinion of the amount of 
 such pecuniary loss ; that in such, as in all other cases, it is 
 proper for the jury to exercise their own judgment upon the 
 facts proved, by connecting them with their own knowledge 
 and experience, which they are supposed to possess in common 
 with the generality of mankind. It was also held, that the 
 money recovered should not be treated as a part of the estate 
 of the deceased ; that creditors were excluded from any benefit 
 of it, and that it did not pass by virtue of any provisions of the 
 will of the deceased ; in short, that it should be distributed 
 
204 WASTE BY THE WIDOW. [CH. XSXIIL 
 
 among those to whom his personal estate, remaining after pay- 
 ment of his debts, and in the absence of a will, would descend.' 
 § 432. The personal representative having instituted a suit 
 under this statute has a right to control its prosecution and dis- 
 position, and to compromise it s But of course he must act in 
 good faith and exercise a reasonable degree of judgment in 
 making such a compromise. And he is liable on his bond for 
 the proceeds of a suit under this statute, and it would make no 
 difference with this liability if the damages were voluntarily 
 paid by the person liable for the injury.* 
 
 CHAPTEE XXXIII. 
 
 OF WASTE BY THE WIDOW. 
 
 §433. Statutory-provision defining her liability and that of her sub- 
 sequent husband. 
 
 § 433. The statute, title Administration, sec. 80, provides 
 that, " If the widow commits waste in the lands and tenements, 
 or the personal estate of the deceased, she shall be liable to an 
 action by the heir or devisee, or his or her guardian, if of real 
 estate, or by. the executor or administrator if of personal es- 
 tate; and if she marry a subsequent husband, he shall be 
 answerable with her, in damages, for any waste committed by 
 her or by the husband himself, after such marriage." 
 
 2 This case and that of C. B. & Q. R. B. Co. v. Triplett, 38 111. 483, con- 
 tain other points of interest to counsel in these cases. 
 "Henchy v. City of Chicago, 41 111. 136 
 4 Goltra v. People, 53 111. 234. 
 
CH. XXXIV.] ADMINISTRATOES, RIGHTS, ETC., OF. 205 
 
 CHAPTEE XXXIV. 
 
 BIGHTS AND DUTIES OF ADMINISTRATOES RESPECTING 
 REAL ESTATE. 
 
 § 434, 485. What administrators may and may not do with real estate. 
 General principles. 
 
 § 434. Administrators and such executors as have not, by 
 the terms of the will, any special rights given them in or to 
 the real estate of the decedent, or any duty enjoined in respect 
 thereto, take no title to, or estate, right or interest in, the 
 realty. 1 Thay have no right to the rents, except such as were 
 due in the lifetime of the deceased." They are not required to 
 pay the taxes." They have no power to remove clouds from 
 the title,* nor to apply to a court of chancery to reform a deed 
 made to the intestate in his lifetime," where there was a mis- 
 take in the description of the land intended to be conveyed, 8 
 or to remove an adverse title ; 7 nor to proceeded in equity to set 
 aside a voluntary conveyance — creditors only can do this" — or 
 make a partition of land owned by the intestate and another,' 
 nor sell or encumber it without an order of the court there- 
 for. 10 Such lands, except those included in a voluntary con- 
 veyance, descend to the heirs or are taken by the devisees, as 
 
 'Smith v. McConnell, 17 111. 135; Stone v. "Wood, 1G 111. 177; "Walbridge 
 v. Day, 31 111. 379; Phelps v. Punkhouser, 39 111. 401. 
 
 'Ante, §292. 
 
 ! Stone v. "Wood, Phelps v. Punkhouser, supra. 
 
 4 Smith v. McConnell, supra ; Cutter v. Thompson, 49 111. 401 ; Phelps v. 
 Funkhouser, supra. 
 
 6 Foltz v. Prouse, 17 111. 487. 
 
 6 Shoemate v. Lockridge, 53 111. 503. 
 
 ' Gridley v. "Watson, 53 111. 186. 
 
 8 Choteau v. Jones, 11 111. 300. See McDowell v. Cochran, ib. 31 ; Alex, 
 ander v. Tarns, 13 111. 221. 
 
 8 "Williams v. Wiggand, 53 111. 233. 
 
 "Stillman v. Young, 16 111. 318. 
 
206 CONTROL OF EEAL ESTATE. [CH. XXXIV. 
 
 the case may be, subject to the payment of the debts of the 
 deceased. 11 Though as to lands devised, the last remark must 
 be qualified; for. if they were encumbered by the testator, his 
 personal and other estate is first liable for the discharge of 
 the same; but if encumbered by a prior owner, the devisee 
 must discharge it." 
 
 § 435. The personal representative takes only a power, and 
 not an interest, 13 and he cannot exert this power (which is that 
 of sale or to mortgage or lease), except to raise a fund for the 
 payment of debts of the deceased, and under an order of court 
 therefor. The only cases in which the personal representative 
 is required to intermeddle with, or even notice the existence of 
 the real estate, are the following : He must inventory it. (Stat, 
 title Administration, §§ 51, 52.) He may, upon obtaining an 
 order of the court, sell it, to pay general indebtedness. (§ 97, etc.) 
 And he may, where the estate is insolvent, and upon a like order, 
 sell land to make the uncompleted payment therefor. (§ 111.) 
 And he (an executor, only,) may mortgage or lease land, by or- 
 der of the court, to raise a fund for the payment of debts due 
 from the estate. (§ 120.) And he may petition to the court 
 for an order to convey lands sold but not conveyed by the de- 
 cedent, when payment has been fully made. (Stat, title Con- 
 tracts, § 4.) The administrator may redeem lands of the de- 
 ceased from sale upon an execution or decree. (Stat. 1872, 
 title Judgments and Decrees, § 18.) The word executor is 
 omitted in this statute, though it was in § 13, E. S. 1845, title 
 Judgments and Executions, from which it was copied. 
 
 11 Vansyckle v. Richardson, 13 111. 171 ; Walbridge v. Day, 31 111. 379. 
 
 12 3 Redf. Wills, § 43, pi. 26. 
 
 "Smith v. McConnell, 17 111. 135; Stone v. Wood, 1C 111. 177; Phelps v. 
 Funkhouser, 39 111. 401. 
 
CH. XXXV.] SPECIFIC PERFORMANCE. 207 
 
 CHAPTEE XXXV. 
 
 SPECIFIC PERFORMANCE BY THE PERSONAL REPRESENTA- 
 TIVE OF CONTRACTS TO CONVEY REAL ESTATE. 
 
 § 486. Statutory provisions. Proceedings. 
 
 437. The consideration must be fully paid or performed before proceed- 
 ings are instituted. 
 
 437a. Contracts made by decedent may be performed by personal repre- 
 sentative when directed by the court. 
 
 § 436. "Where a deceased person has entered into a con- 
 tract, bond or memorandum in writing to make a deed or title 
 to land in this state, for a valuable consideration, and has 
 died, without having executed and delivered such deed, any 
 court having chancery jurisdiction, in the county where the 
 land or some part of it is situated, may make an order com- 
 pelling the personal representative of the deceased person to 
 execute and deliver a deed to the party having the equitable 
 right to the same, or his heirs, according to the intent and 
 meaning of the contract, etc. ; and such deeds will be valid in 
 law. (Stat. 1872, title Contracts,, § 2.) The person entitled to 
 the benefit of such order to convey, or his heirs, having first 
 fully paid, discharged and fulfilled the consideration of the 
 contract, etc., as to the premises sought to be conveyed to the 
 petitioner, or if he is entitled in equity to a conveyance, must ap- 
 ply to the court by petition in writing, and set forth therein 
 such written contract, etc., and describe the lands to be conveyed, 
 and give reasonable notice of the time and place of such appli- 
 cation, to the personal representative and heirs of the deceased, 
 (lb. § 3.) The personal representative or the heirs of any de- 
 ceased person who has made such contract etc., may, when the 
 consideration has been paid and fulfilled, or a conveyance ought 
 to be made, petition to such court, and obtain an order to con- 
 vey, upon giving notice to the party entitled to the deed, under 
 the same condition as provided in this statute. (lb. § 4.) 
 "Where minor heirs are interested in such proceeding, reasonable 
 
208 SPECIFIC PERFORMANCE. [CH. XXXY. 
 
 notice of the application must be given to their guardian ; but 
 if they have no guardian the court must appoint a guardian 
 ad litem for them. (lb. § 5.) The court may continue the 
 cause from term to term, to obtain necessary evidence ; but no 
 order to convey shall be made unless the court is satisfied that 
 the same may be granted without injustice to any heir or cred- 
 itor of the deceased, and is just and equitable. (lb. § 6.) And 
 a complete record of the petition and proceedings must be 
 made, and the court is required to order payment of costs as 
 shall appear right and equitable. (lb. § 7. See Form of Peti- 
 and Order, ISTos. 67, 68.) 
 
 This statute was copied from sections 31 to 36, inclusive, of 
 the statute of 1845, title Conveyances, so far as it relates to 
 personal representatives of deceased persons, except the words 
 in italics. 
 
 § 437. The case of Burgher v. Potter, 32 111. 66, arose out of 
 the written contract of Potter, deceased, to convey land His 
 executors petitioned for an order to convey, while the purchase 
 money was not wholly paid, and the court held, that sec. 34 
 (now § 3) did not authorize this proceeding on the part of the 
 personal representative till the money was wholly paid, and 
 that a court of equity alone could do complete justice between 
 the parties in such cases. Possession of the premises could be 
 obtained by the heirs by ejectment or forcible detainer, but, the 
 court remarked, " this would not settle the equities of the par- 
 ties, or put an end to the case." The minor heirs of the tes- 
 tator, suing by their next friend, joined in the petition with the 
 executors, according to sec. 5 of the present Chancery Code, 
 and the court approved of it. 
 
 The reasonable notice to defendants in these cases, and the 
 time and manner of giving it, are the same as in chancery cases. 
 
 § 437a. Section 127 further provides that, "All contracts 
 made by the decedent may be performed by the executor or 
 administrator, when so directed by the county court." 
 
 This provision was evidently intended to apply to contracts 
 other than for the sale or purchase of land, since these are, as 
 we have just seen, otherwise sufficiently provided for. 
 
CH. XXXVI.] SALE BY EXECUTORS. 
 
 in' 
 
 CHAPTER XXXV. 
 
 SALE OF REAL ESTATE BY EXECUTORS UNDER A POWER 
 CONTAINED IN A WILL, AND LEASES AND MORTGAGES 
 UNDER THE STATUTE, TO PAY DEBTS. 
 
 § 438. Power to sell given in a will recognized by statute — Sales valid — V 
 When part of the executors may make a valid sale. 1 
 
 439. In what case an executor has power to sell. 
 
 440. If will directs the sale, hut no executor is named, or the executor 
 
 named refuses to serve, a decree of sale must be procured 
 
 441. What is a failure or refusal to qualify as executor. 
 
 442. Executors may mortgage or lease lands to pay debts. 
 
 443. 444. How such mortgages are to be foreclosed. 
 
 § 438. The statute, title Administration, § 97, provides 
 that, " In all cases, where power is given in any will to sell 
 and dispose of any real estate, or interest therein, and the same 
 is sold and disposed of in the manner and by the persons' 
 appointed in such will, the sale shall be good and valid ; and 
 where one or more executors shall fail or refuse to qualify, or 
 depart this life before such sales are made, the survivor or 
 survivors shall have the same power and their sales shall be as 
 good and valid as if they all joined in such sales. ' ; 
 
 § 439. Where a testator directs his estate to be disposed of 
 for certain purposes, without declaring by whom the sale shall 
 be made, if the proceeds are distributable by the executor, the 
 power of sale is in him by implication. Thus a power in a 
 will to sell or mortgage, without naming a donee, will, unless 
 a contrary intention appears, vest in the executor, if the fund 
 is to be distributed by him, either for the payment of debts or 
 legacies." 
 
 1 See Pahlman v. Smith, 25 111. 448. 
 
 2 Rankin v. Rankin, 36 111. 293 ; Wms. Ex'rs, 413 ; Bentham v. Wiltshire, 
 4 Mad. 44 ; and see 2 Story Eq. § 1064 '; and 4 Kent. 326, n. e. ; 3 Redf.Wills, 
 § 18, pi. 4, and notes. 
 
 14 
 
210 SALE OF EEAL ESTATE. [CH. XXXVI. 
 
 § 440. "Where the will directs the sale of real estate,, but 
 omits to name an executor, the administrator with the will 
 annexed has no power to ' sell such real estate without the 
 authority of a decree of court authorizing it." So where an 
 executor is appointed by a will directing such sale, and he 
 refuses to act, the administrator with the will annexed cannot 
 sell the real estate without a decree directing it, 4 This is a 
 power not co nferred by statute upon an administrator, but is 
 special and personal in its character, implying confidence 
 reposed by the testator in the judgment and discretion of the 
 person invested with it, and it cannot be delegated. Much less 
 then ought it to be exercised by one whom the testator never 
 expected would administer on his estate, and whom, perhaps, 
 he would not have chosen had the matter beau presented to 
 his mind. 
 
 § 441. As to what is a " failure " to qualify as an executor 
 within the meaning of the 97th section, this may be made to 
 appear to the court by any kind of satisfactory evidence, as 
 that of his removal from the state, his declarations to others of 
 his intention not to serve/ But a "refusal" cannot be predi- 
 cated upon mere negative acts or omissions. The executor 
 named should come before the court and refuse to qualify or 
 file his refusal in writing with the court. 8 The entry of record 
 in the probate court of the failure or refusal of the executor to 
 qualify would doubtless be conclusive in any collateral pro- 
 ceeding. 7 
 
 8 Hall t. Irwin, 2 Gilm. 176, Justices Young and Scates dissenting. 
 
 4 lb. Wells v. Cowper, 1 Ohio Cond. R. 278. 
 
 5 Sharp y. Pratt, 15 "Wend. 612; Roseboom v. Mosher, 2 Denio, 69; Den 
 v. Sparks, Dev. & Batt. 389 ; Chanet v. Villeponteaux, 2 McCord, 27 ; "Ward- 
 well v. McDowell, 31 111. 364. 
 
 6 See Clinefelter v. Ayres, 16 111. 329, and cases cited. Also, ante", § 217, 
 and see contra, Giddy v, Butler, 3 Munf. 345. 
 
 ' The cases of Wardwell v. Smith, 31 111. 364, and Ayres v. Clinefelter, 
 20 111. 465, were decided under a statute (1837) by which taking probate 
 of wills and issuing of letters testamentary are expressly declared to be 
 ministerial acts, and are not applicable to the present statute. See ante, 
 § 172. 
 
CH. SXXVI.J MORTGAGE OF REAL ESTATE. 211 
 
 § 442. Section 120 provides that, " Eeal estate may be 
 mortgaged in fee or for a term of years, or leased by executors : 
 Provided, that the term of such lease or the maturity of the in- 
 debtedness secured by such mortgage, shall not extend beyond 
 the time when the heirs entitled to such estate shall attain the 
 age of twenty-one years, if male, or eighteen years, if female : 
 And, provided also, that before a mortgage or lease shall be 
 made, the executor shall petition the county court for an order 
 authorizing such mortgage or lease to be made, and which the 
 court may grant, if the interests of the estate require it : Pro- 
 vided, further, that the executor making application as afore- 
 said, upon obtaining such order, shall enter into bond, with 
 good security, faithfully to apply the moneys to be raised upon 
 such mortgage or lease, to the payment of the debts of the tes- 
 tator ; ,and all moneys so raised shall be assets in the hands of 
 such executor for the payment of debts, and shall be subject 
 to the order of the court in the same manner as other assets." 
 The petition under the foregoing section of the statute may 
 follow the form of an eaxcutor's petition for the sale of real 
 estate, except as to the prayer, which should be for an order 
 to mortgage the real estate for the necessary sum, or lease it, as 
 the case may require ; and the order should give all necessary 
 directions including a direction to report proceedings under it. 
 §443. Section 121 provides that, "Foreclosures of such 
 mortgages shall only be made by petition to the county court 
 of the county in which the premises, or a major part thereof, 
 are situated ; and any sale made by virtue of any order or de- 
 cree of foreclosure, may, at any time before confirmation, be set 
 aside by the court for inadequacy of price or other good cause, 
 and shall not be binding upon the executor until confirmed 
 by the court." 
 
 § 444. Section 122 provides that "No decree of strict fore- 
 closure shall be made upon any such mortgage, but redemp- 
 tion shall be allowed, as is provided by law in cases of sales 
 under executions issued upon common law judgments." 
 
212 creditoe's lien. [ch. sxxvil 
 
 CHAPTEK XXXYII. 
 
 CREDITORS' LIEN ON LANDS OF THE DECEASED. 
 
 § 445-448. Creditors have a lien on the lands of the decedent for their 
 claims not paid out of personal estate. How long the lien 
 continues. 
 
 § 445. Creditors Have a right, when the personal estate is in- 
 sufficient to satisfy their claims against the deceased, to have 
 lands belonging to the estate sold to raise a fund for that pur- 
 pose. This right is in effect a lien upon such lands. The es- 
 tate of the heir or devisee in the lands of the deceased is there- 
 fore defeasible and liable to be defeated by a sale made by the 
 administrator, in due course of administration, but becomes 
 absolute after the debts of the estate are extinguished. And 
 a purchaser of such lands from the heir, in general, occupies 
 no better position This lien of the creditor is not, however, 
 perpetual, but may be lost by gross laches or unreasonable 
 delay. 1 There is no statute declaring how long such liens may 
 continue. But in McCoy v. Morrow? where the petition by 
 the administrator for the sale of land was filed twenty-six years 
 after the death of the intestate and the date of letters of admin- 
 istration, and in Unknown Heirs of Langworihy v. Baker," where 
 letters of administration were granted over twenty years after 
 the death of the intestate, and twenty -seven years after the 
 debt became due, for the payment of which it was sought to 
 sell lands, it was held, that a creditor will be considered as 
 having waived his lien on the property of the intestate if he 
 does not pursue his remedy in a reasonable time, and it would 
 seem by analogy to the lien of judgments and the limitation 
 for entry upon, and recovery of lands, that seven years from 
 the death of the intestate should bar such liens. 
 
 . > Vansyckle v. Richardson, 13 111. 171. 
 2 18 111. 519. 
 
 3 23 111. 484. 
 
CH. XXXVII.] creditoe's lien. 213 
 
 § 446. In the case of Rosentlwl v. Renick,* where nine years 
 had elapsed after the death of the testator before filing the peti- 
 tion for the sale of lands, the county court refused an order of 
 sale on the ground that the lien of the creditors had been lost 
 by the lapse of seven years between the death of the testator 
 and the filing of the petition. The supreme court reverse this 
 decision and say, in substance, that if the real estate had been 
 aliened by the devisee, for a valuable consideration, before the 
 filing of the petition, or even if money had been expended by 
 the devisee himself in improving such real estate, we should 
 not hesitate to say, that the lapse of more than seven years be- 
 tween the death of the testator and the filing of the petition, 
 would be a sufficient reason for denying the prayer of the peti- 
 tion. In many cases a shorter limitation might properly be ap- 
 plied, to protect innocent purchasers against this secret lien ; 
 and even where the title is still in the heirs, the period of seven 
 years may be properly adopted in analogy to our statute of 
 limitation relating to the lien of judgments, and under certain 
 circumstances, to the action of ejectment, if the delay of the 
 creditors in causing the application to be 'made is unexplained. 
 The legislature not having thought proper to fix a definite and 
 inflexible period of limitation, courts will not do so. And 
 while it may be said, generally, that this secret lien is entitled 
 to no special favor, and courts should be intolerant of laches, 
 because the lien is secret, yet, in the absence of a legislative 
 rule every case must depend largely upon its own circum- 
 stances. The delay in this case was satisfactorily explained and 
 shown not to result from mere negligence, and the order for the 
 sale was granted. 
 
 § 447. In the case of Moore v. Ellsworth, 51 HI. 308, where 
 letters of administration were granted in September, 1860, and 
 the petition was not presented until January, 1869, the court 
 say : "It is insisted that an order of sale should not have 
 been made after the lapse of seven years. But we held, in 
 Rosenthal v. Renick, 44 111. 202, that no inflexible rule can be 
 
 *44 111. 202. 
 
214 LIMITATION OF LIEN. [CH. XXXVII. 
 
 laid down. Each case must be judged upon its own merits, 
 and all that can be said as a general rule is, that a delay of seven 
 years, if unexplained, is a sufficient reason for refusing the 
 order, but if the delay is satisfactorily explained, as by show- 
 ing the settlement of the estate has been necessarily delayed, 
 and the lands remain in the same condition as when the de- 
 cedent died, the mere lapse of time is not a reason why the 
 order of sale should not be made. In this case the record 
 shows, that the largest claim against the estate is a judgment 
 rendered in the circuit court, in June, 1868, and, as urged by 
 counsel, until the termination of the litigation which resulted 
 in this judgment, the administrator would be wholly uncertain 
 to what extent it would be necessary to sell the real estate. In 
 the meantime, so far as appears, the title has remained in the 
 heirs. No equities have intervened, and as the indebtedness 
 of the estate was only finally determined a few months before 
 this application was made, we cannot say it was barred by 
 lapse of time." 
 
 § 448. In the case of Burson v. Goodspeed, adirir, (before 
 the supreme court of Illinois,) 4 Chicago Legal News, 242, over 
 thirteen years had intervened between the death of the intestate 
 and the filing of the petition, and the delay was satisfactorily 
 explained, and the order granted, the court referring with appro 
 bation to the decisions in McCoy v. Morrow, Rosenthal v. Benick, 
 and Moore v. Ellsworth, and saying that mere lapse of time 
 is not a reason why the order should not be made. 
 
 § 448a. As to other cases of liens of judgments and de- 
 crees, and the modes of enforcing them, see Statute, title Judg- 
 ments and Decrees, §§ 1, 2, 39. 
 
CH. XXXYIII.] sale of real estate. 215 
 
 CHAPTEE XXXVIII. 
 SALE OP REAL ESTATE BY OEDEB OF COURT TO PAY DEBTS. 
 
 Part I. Sale to Pay Purchase Money Due on Lands. 
 
 § 449. The court may coerce the personal representative to apply for an 
 order to sell real estate to pay debts. 
 
 450. Personal representative may obtain an order of court to sell land to 
 
 pay the purchase money due thereon. And may pay unpaid pur- 
 chase money in some cases. 
 
 451. How to procure the order of sale. 
 
 §449. Section 130 provides that, " Whenever real estate is 
 required to be sold for the payment of debts, the court may 
 make all necessary orders to coerce the executor or adminis- 
 trator to make immediate application for an order to sell such 
 real estate." 
 
 § 450. Section 111 provides that, " In all cases where a 
 decedent is seized of a legal or equitable title to real estate, 
 the payment whereof has not been completed, and the estate 
 of such decedent is unable to make complete payment there- 
 for, with advantage to such estate, the administrator or exec- 
 utor may sell or dispose of such real estate upon the order 
 of the county court, and the money arising from such sales 
 shall be assets in the hands of such executor or administra- 
 tor, as in other cases. But in all cases where the estate 
 of such decedent shall be solvent, and such lands as afore- 
 said may be paid for without prejudice to the creditors, heirs 
 and devisees of the estate, the executor or administrator shall 
 complete the payment for the same out of the proceeds of 
 the personal property, in the name of the heirs or legal repre- 
 sentatives of the decedent entitled thereto ; and he shall be 
 allowed a credit for the amount of such payments, and all rea- 
 sonable expenses incurred in making the same, upon final set- 
 tlement of such estate : Provided, that the provisions of this 
 
216 SALE OF EEAL ESTATE. [CH. XXX.YIII. 
 
 section shall, in nowise interfere with the provisions of any last 
 will or testament." 
 
 § 451. In order to procure an order to sell real estate under 
 the statute just quoted, it would be advisable to proceed as in 
 cases where an order of sale is obtained to sell lands for the 
 payment of the ordinary debts of the estate. 
 
 OHAPTEE XXXVIIL 
 
 SALE OP EEAL ESTATE TO PAT DEBTS. 
 
 Paet II. Sale of Lands by Oedee of Couet to pat Debts 
 Generally. 
 
 § 452. When, by an account filed, it is ascertained that the personal estate 
 is insufficient to pay the debts, real estate may be sold. 
 453,454. Mode of commencing proceedings is by petition — court— 
 parties. 
 
 455. The court must have jurisdiction of the parties and the subject 
 
 matter. 
 
 456. No person interested in the real estate is bound by the proceedings 
 
 unless made a party as provided by statute. 
 
 457. 458. What the petition shall contain — must be sworn to. 
 459, 460. Docketing cause — practice as in chancery. 
 
 461. If court has jurisdiction of the subject matter and of the person, 
 
 subsequent irregularities will not vitiate the order of sale. 
 
 462. Reversal of the order of sale — its effect on the title. 
 
 463. Of summons — when returnable. 
 
 464. Service of summons — how made. 
 
 465. What the summons must contain. 
 
 466. Of the return — its form — of the record as showing service — 
 
 amendment of return. • 
 
 467. General principles, 
 
 468. Notice by publication — affidavit of non-residenoe, etc. — notice — 
 
 its contents — where and how published — notice to be mailed to 
 defendant. 
 
 469. Of the nearest newspaper. 
 
CH. XXXVIII. 1 SALE OF REAL ESTATE. 217 
 
 % 
 ^ 470. Notice to be published four successive weeks, the first publication 
 to be more than forty days before the term of court. 
 
 471. Printer's certificates of publication as evidence — proof may be 
 
 made otherwise. 
 
 472. Date of newspaper deemed the day of its publication — computa- 
 
 tion of time. 
 
 473. Recitals in the order, as curing defects in the printer's certificate. 
 
 474. Of the form and substance of the notice. 
 
 475. Defective notice cured by defendant's appearance and defense. 
 
 476. Of guardians ad litem — in what cases appointed. 
 
 478. The duty of the court to appoint guardians ad litem — eflect if none 
 
 appointed. 
 
 479. Duty of guardians ad litem. 
 
 480. Infants cannot be defaulted — nor petition taken as confessed by 
 
 them — essential facts must always be proved as against them — 
 what the record should show. 
 
 481. Of the hearing — what the court shall find — order of sale. 
 
 482. Amendment of petition to make new parties — service of sum- 
 
 mons — republication of notice in certain cases. 
 
 483. It must be shown that there are existing debts — heirs and devisees 
 
 may object to claims already allowed by the court. 
 
 484. The record of the probate court of another state — its competency 
 
 as evidence. 
 
 485. Not necessary to show that personal estate of the deceased in an- 
 
 other state has been exhausted. 
 
 486. No proof of the allegation of ownership of real estate necessary 
 
 when the petition is taken as confessed. 
 
 487. The real estate cannot be sold except to pay debts due at the death 
 
 of the decedent. 
 
 489. Eecitals of what the court found — their effect. 
 
 490. How much real estate the order should direct to be sold. 
 
 491. The interest of the widow under a devise — she considered a credi- 
 
 tor to the extent of her award. 
 
 492. The court may order the sale to be made on a credit, and may give 
 
 special directions as to the notice of sale. 
 
 493. Of a supplemental petition. 
 
 494. Where other debts were presented and proved after the sale was 
 
 made, a sale of the remaining property ordered to be sold in the 
 first instance, held valid. 
 
 495. The court need not determine the particular estate which the de- 
 
 cedent had in the land. 
 
 496 . Of errors in the description of the real estate. 
 
 497. Of the sale — notice — character of notice — how long to be given — 
 
 what it must contain — hour of sale — penalty for disregarding — 
 security to be taken — report of sale to be made. 
 
218 SALE OF BEAL- ESTATE. [OH. XXXVTII. 
 
 
 § 498. Validity of sale. * 
 
 499. Of the nearest newspaper. 
 
 500. Postponement of sale — no more than is necessary to be sold — to 
 
 he sold in parcels. 
 
 501. Sales to he made by the personal representative — valid against 
 
 heirs and devisees — if personal representative dies before con- 
 veyance made, the administrator de bonis non may convey. 
 
 502. What the deed must recite. Effect of covenants of warranty. 
 
 503. What title the purchaser acquires. 
 
 504. Widow's right of dower and homestead, as affecting title. 
 
 505. Agreement between parties not to bid against each other at the sale 
 
 vitiates title. 
 500. Personal representative not to bid at his own sale, directly or indi- 
 rectly. It is fraud per se. 
 
 507. Jurisdiction to set aside such a sale. 
 
 508. Limitation in these cases. 
 
 509. Purchase in these cases not void, but voidable. Proceedings in 
 
 equity. 
 610. Of the account of interest, taxes, etc. 
 511. Statutory provision — proceeds of sale to be applied in payment of 
 
 debts. 
 
 § 452. The statute, section 98, provides that, " "When the 
 executor or administrator has made a just and true account of 
 the personal estate and debts to the county court, and it is as- 
 certained that the personal estate of a decedent is insufficient 
 to pay the just claims against his estate, and there is real estate 
 to which such decedent had claim or title, such real estate, or 
 such portion as may be necessary to satisfy the indebtedness of 
 such decedent, and the expenses of administration, may be 
 sold in the manner herein provided." 
 
 Section 100 of the statute (post, § 457), sets forth more dis- 
 tinctly what the account should contain. (See Form No. 69.) 
 
 § 453. Section 99 provides that, the mode of commencing 
 the proceedings for the sale of real estate in such cases shall be 
 by filing of a petition by the executor or administrator, in the 
 county court of the county where letters testamentary or of ad- 
 ministration were issued. The widow, heirs and devisees of the 
 testator or intestate, and the guardians of any such as are 
 minors, and the conservators of such as have conservators, and 
 the actual occupants of the premises, where the same or any 
 
CH. XXXVIII.] JURISDICTION OF PERSON, ETC. 219 
 
 part thereof are occupied, shall be made parties defendants. 
 And if there are persons interested in the premises whose names 
 are not known, they shall be made parties by the name of un- 
 known owners." (See Form of Petition, No. 70.) 
 
 § 454 The statute clearly prescribes the steps to be taken 
 in order to obtain authority to sell real estate, and each of these 
 must be carefully taken as directed. It is sufficiently explicit 
 as to the filing of the petition, and the court in which it is to 
 be filed : so also as to the parties to be made defendants. The 
 consequences of a mistake here are of great importance, and 
 especially to the purchaser of such real estate. The general 
 principle of the law is strictly applicable to this class of cases ; 
 that, where special proceedings are authorized by which the 
 estate of one may be divested and transferred to another, every 
 material step in the course of the proceedings must be pursued. 1 
 
 § 455. In all judicial proceedings, in order to render the 
 judgment or decree binding upon the parties, the court must be 
 invested with jurisdiction. If the parties are not before the 
 court, there can be no power to bind them by deoree or other- 
 wise. A defendant must have notice of the pendency of the 
 proceeding, and a reasonable opportunity to be heard in de- 
 fense of his rights, before these can be affected by the judg- 
 ment or decree. The court must, likewise, have jurisdiction of 
 the subject of litigation, or the power to adjudicate and deter- 
 mine the question in dispute will be wanting. If the court 
 lacks such jurisdiction, its proceedings will be void, and bind- 
 ing upon no persou ; and they may be questioned in any pro- 
 ceeding, whether direct or collateral. 3 
 
 § 456. No person having an interest in the real estate will 
 be bound by an order of sale unless he is made a party to the 
 petition, in the manner pointed out in the statute. Thus, the 
 interest of a posthumous child in real estate cannot be divested 
 by an order of sale in a proceeding to which he was not made • 
 
 1 See Reynolds v. Wilson, 15 111. 384. The petition must be filed as re- 
 quired by law. Monahan v. Vandyke, £7 111. 154. 
 
 2 Walker, C. J., in Morris t. Hogle, 37 111. 150. 
 
220 SALE OF EEAL ESTATE. [CH. XXXVIII, 
 
 a party. 3 He inherits directly from the parent, with the same 
 effect as if he had been born before the decease of the parent." 
 
 § 457. Section 100 provides that, " The petition shall set 
 forth the facts and circumstances on which the petition is 
 founded, in which shall be stated the amount of claims al- 
 lowed, with an estimate of the amount of just claims to be pre- 
 sented, and it shall also contain the amount of personal estate 
 which has come to his hands, and the manner in which he has 
 disposed of the same, with a statement of the amount of claims 
 paid. The petition shall be signed by the executor or admin- 
 istrator, and verified by his affidavit, and shall be filed at least 
 ten days before the commencement of the term of court at 
 which the application shall be made." (See Form No. 70.) 
 
 § 458. The petition must contain all the jurisdictional 
 facts, 6 and it will be sufficient if it contains all that the statute 
 requires." But it need not pursue the exact language of the 
 statute. Any words which necessarily convey to the mind all 
 that the statute requires, will be sufficient; and the language 
 used should be construed liberally and favorably to sustain the 
 jurisdiction of the court and the validity of an order of sale.' 
 The petition must set forth that there are existing debts against 
 the estate which the administrators will be called upon to pay." 
 But debts created by the administrator after the death will not 
 justify a proceeding to sell land." The present statute does not 
 in terms require the petition to show that an account has been 
 made and returned to the court ; but it authorizes the adminis- 
 
 8 Detrick v. Migatt, 19 111. 146 ; Smith v. McKee, 39 111. 279. 
 
 * McConnell v. Smith, 23 111. 611 ; Bottsford v. O'Connor, 52 111. 316. 
 "Dorman v. Tost. 13 111. 127; Unknown Heirs of Langworthy v. Baker, 
 
 23 111. 484. 
 
 6 Stow v. Kimball, 28 111. 93; McNitt v. Turner, U. S. Sup. Ct. 5 Leg. 
 News 349. When the petition states enough to' require the court to act, 
 its orders and decisions are binding until they are reversed by direct pro- 
 ceedings for that purpose, as by appeal or on error; they cannot be at- 
 tacked collaterally. Iverson v. Loberg, 26 111. 179. 
 
 1 This was said in a collateral action. Standemire v. Standemire, Sup. 
 Ct. Ala. 1872, cited 4 Leg. News, 133. 
 
 8 Dorman v. Tost, supra. See post, §§ 483, 484. 
 
 • Fitzgerald v. Glancy, 49 111. 465. See post, § 487. 
 
CH. XXXVIII.] JURISDICTION. 221 
 
 trator to file a petition when lie ascertains that the personal 
 estate is not sufficient to pay the debts, and shall have filed 
 such an account. It is necessary to allege that the account has 
 been made or that, as in the case before the court, there were 
 no personal effects of which an account could be made. It 
 suffices to give the court jurisdiction, to allege that the intestate 
 died leaving no personal estate, but this allegation should be 
 proved before the court should order the sale of land 10 And 
 in such case it is not essential to show that an appraisement 
 bill was filed by the personal representative." 
 
 § 459. Section 101 provides that, " Such application shall 
 be docketed as other causes, and the petition may be amended, 
 heard, or continued for notice, or for other cause. The practice 
 in such cases shall be the same as in cases in chancery." 
 
 § 460. This is a statutory and not a chancery proceeding, " 
 but the statute provides for written pleadings, and requires the 
 filing of an answer, and replication so as to form issues, as in 
 chancery causes ; and upon appeal to the circuit court, the case 
 must be tried upon the issues so presented. 18 And where 
 the petition alleges the ownership of the lands to be in the in- 
 testate at the time of his death, and is taken as confessed, no 
 proof of the ownership is necessary for the purpose of this pro- 
 ceeding. 14 
 
 § 461. When jurisdiction has once attached to the subject 
 matter and the person, whatever errors may subsequently occur 
 in its exercise, the proceeding being before the court, cannot 
 be impeached collaterally, except for fraud. In all other re- 
 spects it is as conclusive as if it were irreversible in a proceed- 
 ing for error. 16 The purchaser under it is not bound to look 
 
 10 Bree v. Bree, 51 111. 857. 
 
 " Shoemate v. Lockridge, 53 111. 503. 
 
 "Moline "W. P. Co. v. "Webster, 26 111. 233; 22 111. 449; 51 111. 390, 
 
 13 Buraon v. Goodspeed, 4 Leg. News, 242. 
 
 14 Bowles' Heirs v. House, 3 Gilm. 409. 
 
 ■ I6 McNitt v. Turner, (U. S. Sup. Ct.) 5 Leg. News, 349 ; Stow v. Kimball, 
 28 111. 93; Goudy v. Hall, 36 111. 313. As to a bill to set aside a sale for 
 fraud and other irregularities, see Lloyd v. Malone, 23 111. 43. 
 
222 SALE OF REAL ESTATE. [CH. XXXVIII. 
 
 beyond the order. If there is error in it of the most palpable 
 kind, if the court which rendered it had, in the exercise of ju- 
 risdiction, disregarded, misconstrued, or disobeyed the plain 
 provisions of the law which gave them the power to hear and 
 determine the case before them, the title of the purchaser is as 
 much protected as if the adjudication would stand the test of a 
 writ of error." 
 
 § 462. The reversal of the order of sale on appeal or for 
 error, except when the court making the order had no jurisdic- 
 tion of the subject matter or of the person does not destroy the 
 title acquired by the sale." 
 
 § 463. Section 102 provides that, " Upon the filing of the 
 petition, the clerk of the court where the same may be filed 
 shall issue a summons, directed to the sheriff of the county in 
 which the defendant resides, if the defendant is a resident of 
 fhis state, requiring him to appear and answer the petition on 
 the return day of the summons ; and where there are several 
 defendants, residing in different counties, a separate summons 
 shall be issued to each county, including all the defendants re- 
 siding therein. Every summons shall be made returnable to 
 the first term of the county court after the date thereof, unless 
 the petition is filed within ten days immediately preceding any 
 term, in which case the summons shall be returnable to the next 
 term thereafter." 
 
 § 464. In proceedings of this character, a summons that 
 distinctly informs the parties summoned of the object of the 
 proceeding is sufficient, notwithstanding the defendants are, in 
 the body of the writ, called upon to answer a " bill in chan- 
 cery." 18 
 
 § 465. Section 103 provides that, ' ' The service of summons 
 shall be made by reading thereof to the defendant, or leaving a 
 copy thereof at the usual place of abode, with some member of 
 the family of the age of ten years and upwards, and informing 
 
 18 Grignon's Lessee v. Astor, 2 How. TJ. S. p. 341. 
 » Goudy v. Hall, 36 111. 313. lb. 30 111. 109. 
 18 Jeffries v. Decker, 42 111. 519. 
 
CH. XXXVIII.] SUMMONS RETUKtf. 223 
 
 such person of the contents thereof ; which service shall be at 
 least ten days before the return of such summons." (See Form 
 of Eeturn, No. 71.) 
 
 § 466. The general principle is, where the statute prescribes 
 no particular mode of serving a summons, it may be done by 
 reading to the defendant ; but if the statute directs the manner 
 of making service, no other can be substituted. In Bottsford v. 
 O'Connor, 52 111. 316, the court held that the return — " Served 
 this writ on the within named Mary O'Connor and Charles 
 O'Connor, the others not found in my county," is insufficient. 
 It must show the time when, upon whom, and the manner in 
 which service was made. And the court further held, that if 
 the return shows service which is insufficient, and the record 
 fails to show that the court found it had jurisdiction, then the 
 presumption is rebutted in collateral actions, and it must be 
 held that the court acted upon insufficient service ; the general 
 principle being that, when a service and return appear in the 
 record, and there is no finding of the court from which it may 
 be inferred that there was other service or appearance, it will 
 be presumed that the court acted upon the service which 
 appears in the record. And where service is had on part only 
 of the heirs, the order will bind those, but not such as were 
 not served." 
 
 The sheriff's return on the writ may be amended so as to set 
 forth the facts, in these cases as in any others, upon motion, 
 before the order of sale is made. 
 
 § 467. The general principle which requires the defendants 
 in a suit to be notified of its pendency, applies to proceedings 
 of this kind, as to all other suits. If, therefore, notice is not 
 served or given to the heirs in some mode known to the law, 
 an order of sale to pay debts will be void, as to all parties who 
 are not so notified, and the purchasers at the sale will not be 
 protected in their title. !0 
 
 19 See Pardon v. Dwire, 23 111. 572; Fitzgerrald v. Davlin, Sup. Ct. Ill 
 4 Leg. News, 271. 
 50 Morris v. Hogle, 37 111. 150. 
 
224 SALE OF REAL ESTATE. [CH. XXXVIII. 
 
 § 468. Section 104 provides that " "Whenever any petitioner 
 or his attorney shall file in the office of the clerk of the court 
 in which his petition is pending, an affidavit showing that any 
 defendant resides or hath gone out of this state, or on due in- 
 quiry cannot be found, or is concealed within this state, so that 
 process cannot be served upon him, and stating the place of 
 residence of such defendant, if known ; or that, upon diligent 
 inquiry, his place of residence cannot be ascertained, the clerk 
 shall cause publication to be made in some newspaper pub- 
 lished in his county, and if there is no newspaper published in 
 his county, then in the nearest newspaper published in 
 this state, containing notice of the filing of the petition, the 
 names of the parties thereto, the title of the court, and the time 
 and place of the return of summons in the case, and a descrip- 
 tion of the premises described in the petition ; and he shall 
 also, within ten days of the first publication of such notice, 
 send a copy thereof by mail, addressed to such defendant whose 
 place of residence is stated in such affidavit. The certificate of 
 the clerk that he has sent such notice in pursuance of this sec- 
 tion, shall be evidence." (See Form of Affidavit and of Notice, 
 Nos. 72, 73.) 
 
 § 469. By the nearest newspaper, is undoubtedly meant the 
 newspaper nearest the village or city in which the court is held ; 
 and courts will not be very precise in measuring the distance. 21 
 
 § 470. Section 105 provides that, " The notice required in 
 the preceding section may be given at any time after the filing 
 of the petition, and shall be published at least once in each 
 week for four successive weeks, and no default or proceeding 
 shall be taken against any defendant not served with summons, 
 and not appearing, unless forty days shall intervene between 
 the first publication, as aforesaid, and the first day of the term 
 at which such default or proceeding is proposed to be taken." 
 
 § 471. The statute, title Advertisements, § 1, makes the 
 printer's or publisher's certificate, annexed to a copy of a legal 
 notice, stating the number of times such notice has been pub- 
 
 " See Stow v. Kimball, 28 111. 93. 
 
CH. XXXVIII.] PUBLICATION OF NOTICE. 225 
 
 listed and the dates of the first and last papers containing the 
 same, prima facie evidence of those facts ; but does not exclude 
 other proof thereof. (See Form of Printer's Certificate, No. 74.) 
 
 § 472. Where the printer's certificate of publication of the 
 notice is defective in not showing the first and last days of pub- 
 lication, it is cured by a recital in the decree, that " it appearing 
 to the court that notice according to law was given of the 
 pendency of this cause." The presumption from such a recital 
 is, that the court received other evidence than the certificate of 
 the dates of publication." 
 
 § 473. The: date of a newspaper is deemed the day of its 
 publication, although it may have been actually published on 
 a previous day. Under the last section, forty days must in- 
 tervene between the day of the date of the newspaper containing 
 the first publication, and the first day of the term at which pro- 
 ceedings are proposed to be taken ; and in making the compu- 
 tation, both of those days are to be excluded. 
 
 § 474. It must be constantly borne in mind that, unless the 
 mode pointed out by the statute for bringing the parties inter- 
 ested before the court is pursued, there will be such a want of 
 jurisdiction as will vitiate the order of sale." No form of 
 notice is given by the statute. It is sufficient if it states all 
 that the statute directs. It is not necessary that the name of 
 the state, or the county, or the title of the court in which the 
 petition is filed, or the term at which the cause is to be heard, 
 shall appear in the introductory part of the notice. It is suf- 
 ficient if the newspaper is published in the county where the 
 cause is pending, if the body of the notice shows that the peti- 
 tion is filed, for instance, in the " Shelby County Court," and 
 that the proceedings are to be held at the " court-house in 
 Shelbyville ;" and it is not necessary that the name of the 
 state appear anywhere in the notice." In Gibson v. Roll, 27 
 111. 88, the advertisement was published in a newspaper pub- 
 
 22 Moore v. Neil, 39 111. 256; Goudy v. Hall, 30 111. 109. 
 23 Herdman v. Short, 18 111. 59; Morris v. Hogle, 37 111. 150; Fitzgeraia 
 v. Davlin, 4 Leg. News, 271. See ante, §§ 454, 555. 
 " Moore v. Neil, 39 111. 256 ; Goudy v. Hall, 36 HI. 313, 
 15 
 
226 MINORS. [CH. XXXYIII. 
 
 listed in Tazewell county, and the notice did not state the 
 name of the county-seat, but only that the cause would be heard 
 in the " county court of Tazewell county, on etc." This notice 
 was held sufficient. And it is sufficient if the notice states that 
 the court is to be held " on the third Monday in May next." 
 It will be presumed to be in May next succeeding the date of 
 the paper. !B 
 
 § 475. "When the party to be notified appears, and defends, 
 this will cure any defect in the form of the notice or time or 
 manner of its publication." 
 
 § 476. Section 106 provides that, " When it appears that' any 
 of the persons required to be made parties defendant, who have 
 been served with summons or notified as aforesaid, are minors 
 under the age of twenty-one years, if males, or eighteen years, 
 if females." without a guardian resident in this state, or are 
 persons having conservators, or where such guardian, if any, or 
 conservator shall not be personally served with summons, or 
 shall not appear, the court shall appoint a guardian ad litem, 
 who shall appear and defend in behalf of such minors, and be 
 allowed such compensation as may be fixed by the court." (For 
 form of order making the appointment, see Order of Sale, No. 
 76. See Form No. 75, Guardian's Answer.) 
 
 56 Ibid. Finch v. Sink, 46 111. 169. In the last case, the notice set forth 
 that the application would be made " at the December Term," and bore 
 date Sept 6, 1852. — Presumed that the application would be made at the 
 December Term, 1852. 
 
 86 See Bowles's Admr. v. Rouse, 3 Gilm. 409. 
 
 The following cases were decided under former and different statutes 
 and are not in every respect authorities under the present statute. Turney 
 v. Turney, 24 111. 625; Gibson v. Roll, 27 111. 88; Monahan v. Vandyke, 27 
 111. 155; Moore v. Neil, 39 111. 256; Goudy v. Hall, 36 111. 313; Oromine v. 
 Tharp, 42 111. 120 ; Stow v. Kimball, 28 111. 93 ; Morris v. Hogle, 37 111. 150 ; 
 Schnell v. City of Chicago, 38 111; 382. They will be found of value in 
 suits involving title to lands sold by administrators during the existence 
 of those statutes. 
 
 " The case of Burson v. Goodspeed, 4 Leg. News, 242, arose under the 
 act of 1857, the court holding that no guardian ad litem was necessary for 
 a female between eighteen and twenty-one years of age ; though the words 
 " if males, or eighteen years, if females," were not contained in that act. 
 
CH. XXXVIII.] GUARDIAN AD LITEM. 227 
 
 § 478. The statute requires a guardian ad litem to be ap- 
 pointed in specified cases, for minors and for persons having 
 conservators, and unless this is done, the order to sell will be 
 reversed on error. 28 And the court should make the appoint- 
 ment, notwithstanding the same is not prayed for in the petition, 
 or any motion made therefor. 30 
 
 § 479. The rule is inflexible that the guardian ad litem must 
 defend the interests of the infants as vigorously as the nature 
 of the case will admit ; and it is his special duty to submit to 
 the court every question involving the rights of the infants 
 affected by the suit. 30 
 
 § 480. A default cannot be taken against infants ; and it is 
 error for the court to take the petition as confessed as to them, 
 under any circumstances." A guardian ad litem should be ap- 
 pointed for them before any steps are taken, wherein they are 
 entitled to be heard. 32 It is the duty of the court to compel 
 him to answer, before the order is granted, and the petitioner 
 must make full proof of his right to the relief claimed. And 
 where the answer admits the allegations of the petition to be 
 true, the petitioner must prove their truth with the same strict- 
 ness as if the answer had interposed a direct and positive de- 
 nial 83 In Fridley v. Murjphy, 3t Calon, C. J., said, "Independ- 
 
 38 Herdinan v. Short, 18 111. 59. The mere reversal of an order under 
 which an administrator has sold land, does not divest third persons of 
 title. If the court has jurisdiction over the parties and the subject-matter, 
 acts performed and rights acquired by third persons under its judgment 
 or decree, and while it remains in force, must be sustained, notwithstand- 
 ing a subsequent reversal. Goudy v. Hall, 36 111. 313 ; Ibid, 30 111. 109. 
 Infant heirs seeking a reversal of the order by proceedings in error, must sue 
 out the writ by their guardian or next friend. Napper v. Short, 17 111. 119. 
 
 89 Rhoads v. Rhoads, 43 111. 239. 
 
 30 Rhoads v. Rhoads, supra; Sconce v. Whitney, 12 111. 150; Enos v. 
 Capps, ib. 255. 
 
 81 Sconce v. Whitney; Enos v. Capps, supra; McClay v. Norris, 4 Gilm. 
 370; Chaffin v. Kimball's Heirs, 23 111. 36. 
 
 32 Cost v. Rose, 17 111. 276. 
 
 83 Enos v. Capps, 12 111. 255 ; Hitt v. Ormsbee, ib. 166 ; Hamilton v. Gil- 
 man, Ib. 260; 16 111. 354; 27 111. 145. Rhoads v. Rhoads, 43 111. 239. See 
 post, § 483. 
 
 34 25 111. 146. 
 
228 HEAEIXG — NEW PAKTIES. [CH. XXXVIII. 
 
 ently of the answer, the court should have been satisfied by 
 proof that the facts actually existed which would require a sale 
 of the land. We will not say that such proof must have been 
 set forth at large upon the face of the record, so that this court 
 could see that they were sufficient ; but the record should show 
 that the court did hear proof which satisfied it of the truth of 
 the allegations of the petition." 
 
 § 481. Section 107 provides that, " Upon hearing the cause 
 upon the issues formed or taken, the court shall hear and ex- 
 amine the allegations and proofs of the parties and of all other 
 persons interested in the estate who may appear and become 
 parties ; and if, upon due examination the court shall find that 
 the executor or administrator, has made a just and true account 
 of the condition of the estate, and that the personal estate of 
 the decedent is not sufficient to pay the debts against such 
 estate, the court shall ascertain, as nearly as can be, the 
 amount of deficiency, and how much of the real estate de- 
 scribed in the petition it is necessary to sell to pay such de- 
 ficiency, with the expenses of administration then due or to 
 accrue, and make a decree for the sale thereof : Provided, that 
 where any houses and lots, or other real estate are so sit- 
 uated that a part thereof cannot be sold without manifest 
 prejudice to the heirs, devisees or owner, the court may order 
 the sale of the whole or sueh part as it may deem best ; and 
 the overplus arising from such sale shall be distributed among 
 the heirs and devisees, owners, or such other persons as may 
 be entitled thereto." (See Form of Order to Sell, No. 76.) 
 
 § 482. Where it appears at any stage of the proceedings 
 that there are any persons interested in the real estate, as the 
 widow, heirs, devisees of the testator, or intestate, guardians or 
 conservators- of such, or the actual occupants of the premises, 
 who are not already made defendants, the court should require 
 the petition to be amended so as to make them parties ; and 
 they should be brought into court by service of process on 
 them, or by publication of notice, or they may enter their ap- 
 pearance, where that is proper; as if they had been made 
 
CH. XXXVIII.] EXISTING DEBTS TO J3E SHOWN. 229 
 
 parties to the' original petition. 36 And where the petition has 
 been amended so as to embrace real estate other than that de- 
 scribed in the original petition, and parties have been brought 
 in by publication, further notice to them by publication would 
 be necessary. 
 
 § 483. An order for the sale of real estate of a decedent 
 will not be made, unless it is shown to the court that there are 
 existing debts against the estate. There must be a judicial in- 
 quiry as to the existence of debts. 36 And the allowance of a 
 claim by the probate court against an estate is not conclusive 
 against an heir, nor for an equal reason, against a devisee, or 
 the grantee of either of them, in this proceeding, and he may 
 contest its validity. 8 ' The rule is, that whatever defense an ad- 
 ministrator may be allowed to make against the claims or de- 
 mands of creditors, may be made by any person interested in 
 the realty, against an application of this nature. 88 
 
 § 484. The record of the probate court of another state, 
 showing that the administrator there reported claims existing 
 against the estate, but which were not there probated, is not 
 such evidence of indebtedness as will entitle an administrator 
 to an order of sale. These claims should have been presented 
 to the administrator in this state, or filed with the clerk of the 
 probate court (under the present law a copy should be filed 
 with the clerk), and been probated. 39 
 
 § 485. It is not necessary to show before granting an order 
 of sale that the personal estate of the decedent in another state 
 has been exhausted. 40 
 
 § 486. "When the petition alleges the ownership of the real 
 
 35 See Bowles' Heirs v. Rouse, 3 Gilm. 409. 
 
 36 Dorman v. Tost, 13 111. 127; Bozier v. Fagan, 46 111. 404. 
 
 ST Moline W. P, Co. v. Webster, 26 111. 233; Stone v. Wood, 16 111. 177; 
 Hopkins v. McCann, 19 111. 113. See People v. Lott, 36 111. 447, as to pre- 
 sumptions from lapse of time in favor of a judgment. 
 
 as Dorman v. Lane, 1 Gilm. 143 ; Stat. Admin. § 60. 
 
 89 Hobson v. Payne, 45 111. 158, on error from the county court. 
 
 40 Rosenthal v. Renick.44 111. 202. 
 
230 FINDING IN THE ORDER. [CH. XXXVIII. 
 
 estate to be in the intestate at the time of his death, and is 
 taken as confessed, no proof of the ownership is necessary. 11 
 
 § 487. Where there were no debts owing by the decedent, 
 and the petition showed that there was no personal property be 
 longing to the estate ; but the administrator had paid an attor- 
 ney $15 for services rendered to him, a printer $5 for publish- 
 ing notice, and the county clerk $4.95 for fees, which the county 
 court allowed as claims against the estate, and granted an order 
 of sale; it was held on error, that the order of sale was void; 
 the court observing, that the real estate of decedents should not 
 be sold in this mode, except to pay debts due at the death of 
 the decedent, as was held in Dorman v. Tost, 13 111. 27. Where 
 there are no debts at the time letters of administration are 
 granted, and no questions of distribution requiring the inter- 
 vention of an administrator, the expenses of administering — 
 the result of unnecessary interference — cannot be regarded as 
 such a debt as would justify a proceeding to sell the lands. 
 Such costs and expenses are not due from the deceased, and 
 only arise from the unnecessary intermeddling of the adminis- 
 trator." 
 
 § 489. The order may find that the material allegations of 
 the petition were proved to the satisfaction 1 of the court, and, in 
 the absence of anything in the record rebutting such finding, 
 it will be presumed that the order was warranted by the evi- 
 dence ; and the evidence need not be preserved in the record" 
 
 § 490. It is error for the court to order the personal repre- 
 sentative to sell so much of the real estate as he may deem for 
 the best interests of the estate. He should be directed to sell 
 as much as may be required to pay the debts of the estate." 
 
 § 491. In Deltzer v. Scheuster, 38 111. 301, the court held 
 that, while the widow is to be considered a creditor of the 
 estate to the extent of her separate allowance, and entitled to 
 have the real estate sold for its payment, yet if the will of the 
 
 41 Bowies' Heirs v. Rouse, 3 Gilm. 409. 
 
 « Fitzgerald v. Glancy, 49 111. 465. 
 
 43 Bree v. Bree, 51 111. 357 ; Shoemate v. Lockridge, 53 111. 503. 
 
 "Morris t. Hogle, 37 111. 150. 
 
CH. XXXVIII.] FURTHER SALE. 231 
 
 husband devised separate parcels of the real estate to her and 
 to his children, the fund for the payment of her allowance 
 should not be raised exclusively from the estate devised to the 
 children, but should be apportioned between that and the 
 estate devised to her, according to their respective values. And 
 in apportioning the burden between the widow and children, 
 the homestead being in the occupancy of the widow, but de- 
 vised to the children, should not be taken into the account or 
 ordered to be sold. 
 
 § 492. The court may, if deemed beneficial to the estate, 
 order the sale upon a credit ; and it is advisable that the order 
 should specify whether the sale shall be for cash, or on credit, 
 and what credit." And it is competent for the court to pre- 
 scribe the mode and terms of the sale, provided it requires as 
 much of the administrator as the statute contemplates and is 
 not inconsistent wiih the statutory provisions. The court may 
 require him to give a longer notice than the statute does, or 
 that more copies of it be posted, or that it be published in more 
 than one newspaper, etc. Eequirements of this character are 
 not prohibited by the statute, nor are they inconsistent with its 
 policy. But they must be strictly followed or the sale will not 
 be confirmed upon the filing of the report thereof." 
 
 § 493. Where an order of sale was entered and sufficient 
 property was sold to satisfy the claims then known to exist, 
 and a report of the sale was made and approved, but at a sub- 
 sequent term a supplemental petition was filed, showing that 
 another claim had been allowed against the estate, and praying 
 for another order to sell other real estate to pay the same : Held, 
 that the original proceeding terminated when the report of the 
 sale had been approved, and the court had no power or juris- 
 diction to make an order of sale upon the supplemental peti- 
 tion, without a new notice to the defendants." This was de- 
 
 « Moline W. P. M. Co. v. "Webster, 26 111. 283. 
 
 46 Reynolds v. "Wilson, 15 111. 394. It would not be improper to direct 
 • that the conveyance be withheld until the report of sale is made and con- 
 firmed. This would give the parties interested a chance to be heard. 
 « Cromine v. Tharp, 42 111. 120. 
 
232 INTERVENING EEEOES. [CH. XXXVIII. 
 
 cided on a writ of error obtained by one of the heirs, and the 
 case did not raise any question directly upon the title conveyed 
 under the order. 
 
 § 494. In Slow v. Kimball, 28 HL 93, where the order 
 directed the administrator to sell all the real estate mentioned 
 in the petition, and only a part of the same, but sufficient to 
 pay all the debts then known to the petitioner, was sold and 
 the report of the sale was approved, after which other valid 
 claims were presented against the estate and allowed, making 
 another sale necessary, the court held that no further order was 
 required for that purpose. The original one was sufficient 
 authority.' 18 
 
 § 495. It is not necessary for the court to determine, and 
 specify in the order of sale, the particular estate which the 
 decedent had in the land. 49 
 
 § 496. "Where the petition, order of sale and deed described 
 the wrong tract of land, but the administrator intended to ob- 
 tain the order to sell, and to sell and convey, another tract 
 which belonged to the deceased, equity will not interpose to_ 
 cancel, or to reform the conveyance, and make it according to 
 the intention of the petitioner. 60 And where the petition 
 described the land correctly as being lots 45, 46, 48 and 49 in 
 section 33, and an abstract attached to the petition described it 
 as being in section 23, and the inventory filed by the adminis- 
 trator from which the abstract was taken also described it as 
 being in section 23, and the order of sale directed that the land 
 in the petition be sold, namely, lots 45, 46, 48 and 49 in section 
 23, and the notice of sale and the administrator's deed correctly 
 described the land, the court in a collateral action held, the 
 misdescription in the inventory and order of sale to be mere 
 clerical errors and did not affect the validity of the sale." 
 
 48 In Monahan v. Vandyke, 27 111. 154, no petition appeared among the 
 flies, nor did the order of sale mention any petition, and for these reasons 
 the order was reversed on error. 
 
 49 Bowles' Heirs v. Rouse, 3 Gilm. 409. 
 60 Ward v: Brewer, 19 111. 291. 
 
 81 Schnell v. City of Chicago, 38 111. 382. 
 
CH. XXXVIII.] SALE — VALIDITY. 233 
 
 § 497. Section 109 provides that, "No lands or tenements 
 shall be sold by virtue of any such order of the county court, 
 unless such sale is at public vendue, and between the hours of 
 ten o'clock in the forenoon and five o'clock in the afternoon of 
 the same day ; nor unless the time and place of holding such 
 sale were previously published for the space of four weeks, by 
 putting up notices thereof in at least four of the most public 
 places in the county where such real estate shall be sold, and 
 also by causing a similar notice thereof to be published four 
 successive weeks prior to the sale, in the nearest newspaper in 
 this state ; nor unless the real estate shall be described with 
 common certainty in such notices." And if any executor or 
 administrator, so ordered to make sale of any real estate, shall 
 sell the same contrary to the provisions of this act, he shall 
 forfeit and pay the sum of five hundred dollars, to be recov- 
 ered by action of debt, in the name of the people of the state 
 of Illinois, for the use of any person interested, who may 
 prosecute for the same : Provided, that no such offense shall 
 be deemed to affect the validity of such sale : And, provided 
 further, that such executor or administrator may sell the same 
 on a credit of not less than six nor more than twelve months, 
 by taking note, with good personal security and a mortgage or 
 sale mortgage on the premises for the payment of the purchase 
 money. And after sale is made and the lands conveyed by 
 the executor or administrator under the provisions of this act, 
 the executor or administrator shall, at the first term of court 
 thereafter, file in the office of. the county clerk a complete re- 
 port of said sale, giving a description of the premises sold, and 
 in general a statement of the manner in which the terms of the 
 decree were executed." 6S (See Form of Report, No. 81, and 
 Order Approving the Sale, No. 82.) 
 
 "Form of Notice of Sale, No. 80. 
 
 53 Under the former statute no report of sale was necessary. See Moore 
 v. Neil, 39 111. 256 ; Stow v. Kimball, 28 111. 93. And under the present 
 statute it is conceived that the title would not be affected, unless the decree 
 ordered the conveyance withheld till the report was made and approved 
 by the court. 
 
284 CONVEYANCE. [CH. XXXVIII. 
 
 § 498. Where there is a valid order, the intention of the 
 statute is to hold the sale valid Sec. 109, of the statute, su- 
 persedes the necessity of inquiring whether the administrator 
 followed strictly the directions of the statute in makirjg the 
 sale. Nor does public policy require that a purchaser at one 
 of these sales should examine into the fact of indebtedness, so 
 as to ascertain if the sale is justified." 
 
 § 499. The requirement that the notice of sale shall be 
 published in the " nearest newspaper in the state," is rather in- 
 definite, but it would seem to be answered by publishing it in 
 the newspaper printed nearest to the real estate to be sold. This 
 view is confirmed by the provision of sec. 98, requiring the pe- 
 tition to be filed in the county court of the county where let- 
 ters were granted, notwithstanding the land is situated else- 
 where. It could hardly be intended that the notice should be 
 published at the place where the court was held, when the 
 lands were situated, as they might be in this state, two or three 
 hundred miles distant The object of the publication is to give 
 notice to persons residing in the vicinity of the land." 
 
 § 500. An administrator need not sell real estate at a sacri- 
 fice, but may postpone the sale and advertise again. " He has 
 no right to sell any more than is necessary to pay the debts 
 and costs of administration, if the land is susceptible of division. 
 If not susceptible of division and sale, without manifest preju- 
 dice to the heirs, devisees or owner, the court has power (Stat. 
 § 107) to order the sale of the whole, or such part as it may 
 deem best, and such an order should be obtained. Two or 
 more tracts should not in general be sold together." 
 
 § 501. Section 108 provides that, "All such sales of real 
 estate shall be made and conveyances executed for the same, 
 by the executor or administrator applying for such order, and 
 shall be valid and effectual against the heirs and devisees of 
 
 54 Stow v. Kimball, supra. 
 
 ' 5 In Stow y. Kimball, 28, 111. 93, the supreme court was not disposed to 
 be very exact in measuring distances in these cases. 
 
 66 See McDonald v. Nielson, 2 Cowen, 139. 
 
 « See Schnell v. City of Chicago, 38 111. 382 ; Day v. Graham, 1 Gilm. 435 ; 
 Day v. Graham, 4 Gilm. 389. 
 
CH. XXXVIII.] WARRANTY — TITLE. 235 
 
 such decedent, and all other persons claiming by, through or 
 under him or them. In case of the death of the executor or 
 administrator applying for an order of sale before conveyance 
 is made, the administrator de bonis non shall proceed in the 
 premises and make conveyance in the same manner as if he had 
 originally applied for such order, which conveyance shall be 
 good and valid." (See Form of Deed. No. 83.) 
 
 § 502. Administrator's deeds need not, under the act of 
 1872, title Conveyances, § 12, contain a copy of the order of 
 sale, 68 but it is sufficient to refer to the same by the title of the 
 cause, the name of the court, and the date of the term of court 
 at which the order was obtained. And they should not in 
 the conveyance clause contain the statutory words importing 
 covenants of warranty, namely, "grant," " bargain," "sell," or 
 either of them, or any clause of equivalent import ; for though 
 the personal representative cannot by covenant of title bind the 
 estate, he may unintentionally make himself responsible on the 
 covenants ; as, in the case of Sumner v. Williams, 8 Mass. 162, 
 where, though the administrators covenanted " in their said 
 capacity as administrators " that they, " as administrators are 
 lawfully seized, etc." In an action against them upon the 
 covenant of warranty they were held to be answerable per- 
 sonally thereon. 69 However, a covenant by the personal repre- 
 sentative in a conveyance of the decedent's land, in his capac- 
 ity of administrator, "and not otherwise" is not binding on 
 him personally.* 
 
 § 503. A purchaser of land at an administrators' sale ac- 
 quires only such title as was then vested in the heirs of the de- 
 cedent Therefore, if the land is subject to the lien of a judg- 
 ment or a mortgage against the decedent or his grantor, the 
 purchaser will take the title with that infirmity. The doctrine 
 
 88 This was required by § 105 of the former statute of wills. A court of 
 equity will compel an administrator' to amend a deed made under this 
 statute, by inserting the recital required by the statute. Thorp v. McCul- 
 lum, 1 Gilm. 014. 
 
 59 Vincent v. Morrison, (Beecher's) Breeze, 227; Thayer v. Wendell, 1 
 Gallison, 37. 
 
 * Thayer v. Wendell, supra. 
 
236 FRAUDULENT SALE. [CH. XXXVIII. 
 
 of caveat emptor applies to such sales, and the purchaser will be 
 presumed to have examined the records in relation to the title, 
 and, if he neglects to do so, he must abide the consequences of 
 the omission." (As to the protection which the order of sale 
 affords- the purchaser, see ante, § 460.) 
 
 § 504. The right of the widow and children to the home- 
 stead, and the widow's right to dower, are paramount to the 
 rights of creditors ; and while' the purchaser at the admistra- 
 tor's sale may hold the fee as against the heirs, unless the sale 
 is impeached for fraud, and the purchase money at the sale by 
 the administrator is paid, yet he is not entitled to the possession 
 as against the right of dower and homestead. 01 
 
 § 505. An agreement between parties not to bid against 
 each other at a public sale, will vitiate the title in equity and 
 at law, so that a deed executed in consequence of it would con- 
 vey no title. " 
 
 § 506. As a general rule, a person acting in a fiduciary ca : 
 pacity, as an administrator, cannot be permitted to purchase 
 property at his own sale. It is fraudulent per se. And it mat- 
 ters not that no fraud was proved, nor that the sale was at pub- 
 lic auction, for a fair price, and made through the medium of a 
 third party as the bidder, and to whom the administrator con- 
 veys. 63 The fact that the person interested by law to make the 
 sale becomes the purchaser, whether by direct or indirect means, 
 creates such a presumption of fraud as requires the sale to be 
 vacated, if application is made in a reasonable time. 64 
 
 § 507. Where no actual fraud appears in the sale to the ad- 
 ministrator, the proceeding to set aside the sale must be had in 
 a court of equity, 66 and this too whether a loss has resulted to' 
 
 60 "Walden v. Gridley, 36 111. 523 ; McConnell v. Smith, 39 111. 279. 
 
 61 Thornton, J., in McClurken v. McClurken, 111. Supt. Ct. 4 Leg. News, 
 477. 
 
 62 Loyd v. Malone, 23 111. 43, and authorities cited. 
 
 03 Miles v. Wheeler, 43 111.123; McConnell v. Gibson, 12 111.128; Thorp 
 v. McCullum, 1 Gilm. 627 ; 1 Story's Eq. § 323. 
 
 64 Pensonnean v. Blakeley, 14 111. 15 ; Wickliff v. Robinson, 18 111. 145 ; 
 Bobbins v. Butler, 24 111. 387 ; Dennis v. McCagg, 32 111. 429. 
 
 06 Lockwood v. Mills, 39 111, 602. 
 
CH. XXXVIII.] VOIDABLE PUBCHASE. 237 
 
 the owner or not." But at law a different rule prevails. 
 There it must not only appear that the person occupying a 
 fiduciary relation, and in whom the law has reposed a trust, has 
 become the purchaser, but that the sale was accompanied by 
 fraud, to render the sale invalid." 
 
 § 508. There is no definite time fixed by law within which 
 proceedings must be begun to set aside a sale for fraud. Courts 
 have never sought, to lay down a precise rule. Bach case is to 
 be adjudged in this respect upon its own particular circum- 
 stances. This matter was discussed at some length in Miles v. 
 Wheeler, 43 111. 123, to which,. with the authorities there cited, 
 reference is made. It is sufficient here to say that in some cases 
 even fifty years have elapsed before suit begun. 
 
 § 509. The purchase is not void, but only voidable. There 
 is a disability in the party to hold, when objected to and 
 questioned by those having an interest. They may have the 
 sale set aside and a re-sale ordered, if deemed for their advan- 
 tage. And in doing so, courts may and frequently do, order 
 the premises put up for sale at the amount of the purchase, 
 and if no advance upon that sum is bid, hold the trustee to 
 his purchase. But the remedy, however, is in a court of equity 
 for relief ; for a court of law will treat it as a valid sale unless 
 there is fraud. The practice is uniform and the principle well 
 settled in these cases, that the court may, on setting aside these 
 sales, and on ordering a re-sale, order a reference to the Master 
 to ascertain the amount of the purchase money and interest, 
 the value of improvements, if any, and also to take an ac- 
 count of the rents. And a decree is always made to re-imburse 
 these sums, after deducting the value of the rents, etc., out of 
 the amount derived from the re-sale ; or if there is no re-sale, 
 then these sums will be ordered to be re-imbursed, and the 
 premises ought to be subject to refund the amount. 08 
 
 § 510. Upon the question at what time the account should 
 
 68 lb. ; Thorp v. McCullum, supra. 
 
 61 Lockwood v. Mills, 39 111. 602 : Jackson ex dem. v. Walden, 14 Johns. 
 407. Thorp v. McCullum, supra. 
 88 Thorp v. McCullum, supra, and authorities cited. 
 
238 PROCEEDS AEE ASSETS. [CH. XXXVTII. 
 
 begin, Lawrence, J., m Miles v. Wheeler, 43 I1L 43, said : " There 
 is no fixed rule upon this question. Bach case depends upon 
 its own circumstances, as in reference to what length of time 
 shall bar relief. The general rule to be gathered from the cases 
 is, that, where there has been great laches on the part of the 
 complainant, and the defendant has not been guilty of positive 
 fraud, the account will be taken from the commencement of 
 the suit. But where the complainants are infants, and there 
 has been no laches in bringing the bill, or the defendant is 
 chargeable with fraud, the account will be carried back to the 
 time when the fraudulent possession began." 
 
 § 511. Section 110 provides that, "When real estate is 
 sold, the moneys arising from such sale shall be received by 
 the executor or administrator applying for the order to sell, 
 and shall be assets in his hands for the payment of debts, and 
 shall be applied in the same manner as assets arising from the 
 sale of personal property." 
 
 OHAPTEK XXXVIII. 
 SALE OF KEAL ESTATE TO PAT DEBTS. 
 
 Part III. Concerning Dower in Case of Sale of Lands 
 to Pat Debts. Homestead Exemption. 
 
 § 512. Dower — County courts have jurisdiction on the petition of the 
 widow, or personal representative to cause it to be assigned when 
 application is made for sale of land. 
 513, 514. Of what the widow will he endowed — Statutory provisions. 
 515, 516. Equitable estates subject to dower. 
 517-519. Other cases. 
 
 520. Dower and homestead interests are independent of each other — 
 
 dower exists in homesteads. 
 
 521. The personal representative not bound to apply for assignment of 
 
 dower, — purchaser takes lands subject to widow's dower — wid 
 ow's rights till dower assigned. 
 
CH. XXXVIII.] DOWER 239 
 
 § 522. The better course to assign dower before making the order to sell. 
 
 523. General remarks on the homestead exemption. 
 
 524. County courts have no statutory power to set off the homestead. 
 535. Homestead — statutory provisions defining it and the rights of par- 
 ties respecting it. 
 
 520. Decisions of courts upon the statute. 
 
 528. Homestead right does no? avail against purchase money of premises. 
 
 Purchase money defined. 
 
 529. Hor does it exist as against a prior judgment lien or mortgage. 
 
 530. Exemption in favor of children. 
 
 531. Dower and homestead interests as separate. 
 
 § 512. County courts have jurisdiction in the assignment 
 of dower, in cases where the personal representative petitions 
 for the sale of real estate to pay debts. In such cases if it ap- 
 pears to the court that there is a dower interest in the land 
 sought to be sold, the court may, on the petition of the person 
 entitled to dower, or the personal representative of the deceased, 
 appoint commissioners to assign dower in such real estate, to 
 the person entitled thereto, in the manner provided by law for 
 the assignment of dower by commissioners, by circuit courts 
 of this state. 1 
 
 § 513.i For the purposes of administration it is sufficient to 
 say, that a widow will be endowed of the third part of the 
 lands whereof her husband was seized of an estate of inherit- 
 ance, at the time of his death. Equitable estates are subject 
 to dower ; so is all real estate of every description contracted 
 for by the husband in his lifetime, the title to which may be 
 completed after his death." Widows of aliens are entitled to 
 dower 8 ; so, if the husband executed a mortgage of lands be- 
 fore marriage, his widow is entitled to dower therein as against 
 every person except the mortgagee, and those claiming under 
 him. 4 Where the husband, during marriage, purchases land 
 and mortgages the same, to secure the purchase money thereof, 
 
 1 Laws of 1859, p. 92 ; Gross' Stat. 220, § 36. For forms in case of | 
 dower, see notes to Forms of Petition and Order of Sale, etc., Nos.70 and 
 76 and comments. 
 
 8 Gross' Stat. 216, Tit. Dower, § 1. 
 
 8 Ib.§ 2. 
 
 «Ib.§ 3. 
 
240 DOWER — widow's election, [ch. xxxviil 
 
 his widow is not entitled to dower as against the mortgagee or 
 those claiming under him, although she did not unite with him 
 in executing the mortgage ; but she is entitled to her dower as 
 against all others." If the mortgagee, or those claiming under 
 him, mentioned in the two preceding sections, shall, after the 
 death of the husband, cause the land to be sold upon foreclos- 
 ure, and any surplus shall remain after the payment of the 
 moneys due on such mortgage, and the costs and charges of 
 sale, such widow will be entitled to the interest or income of 
 one-third part of the surplus for life, as her dower. 9 But she 
 takes no dower in lands conveyed to the husband by way of 
 mortgage, unless he has acquired an absolute estate during the 
 marriage. 7 
 
 § 514. When an estate in land is conveyed to a person and 
 his intended wife, or to her alone, or to any person in trust for 
 them, or in trust for her alone, for the purpose of creating a 
 jointure for such intended wife, and with her assent to be taken 
 in lieu of dower, the jointure will be a bar to any right or claim 
 for dower of such wife, in any land of her husband. 8 Her as- 
 sent to such jointure must be evinced, if she is of full age, ' 
 by her becoming a party to the conveyance by which it shall 
 be settled ; and if she is an infant, by her joining with her father 
 or guardian in such conveyance.' If, before her marriage, but 
 without her assent, or if after her marriage, land is given or 
 assured for the jointure of the wife in lieu of dower, she must 
 make her election, whether she will- take such jointure, or 
 whether she will be endowed of the lands of her husband, but 
 she is not entitled to both. 10 
 
 Every devise of land or any estate therein, will bar her 
 dower in lands, or her share in personal estate, unless other- 
 wise expressed in the will ; but she may elect whether she will 
 take such devise or bequest, or whether she will renounce the 
 
 5 lb. § 4. 
 "lb. §5. 
 'lb. § 6. 
 
 8 lb. § 7. 
 
 9 lb. § 8. 
 10 lb. § 9. 
 
CH. XXXVIII.] DOWER. 241 
 
 benefit of such devise or bequest, and take her dower in the 
 lands, and share in the personal estate of her husband." If the 
 husband die, leaving a widow, but no children, nor descendants 
 of children, such widow may, if she elect, have in lieu of dower 
 in the estate of which her husband died seized, whether the 
 same shall have been assigned or not, absolutely and in her own 
 right, as if she were sole, one-half of all real estate which shall 
 remain after the payment of all just debts and claims against 
 the deceased husband : Provided, that in case dower in such 
 estate shall have been already assigned, she shall make such 
 new election, within two months after being notified of the pay- 
 ment of such debts and claims. 12 
 
 § 515. Under the statutes relating to dower it is now set- 
 tled that a widow can be endowed of estates of inheritance 
 only," and dower in equitable estates is also confined to such 
 only as are estates of inheritance. 14 The husband must have 
 such an equitable estate as gives him a right to be invested 
 with the legal title, in order to entitle the widow to dower. 16 
 Where land is purchased by contract, and time is given for the 
 payment of any part of the purchase money, the husband is 
 not vested, with such an estate as confers the right of dower 
 unless he pays the money and entitles himself to a conveyance. 
 If he has not in his lifetime been entitled to a conveyance, his 
 widow cannot claim dower at his death, unless the purchase 
 money shall be paid for the benefit of his heirs. 1 ' 
 
 § 516. Where the deceased has contracted to convey real 
 estate, and dies before the conveyance is completed, moneys 
 due him on the contract are a part of his personal estate, and 
 if the widow receives her share, she must relinquish her 
 
 » lb. § 10. 
 
 15 lb. §15. And see particularly as to the construction put by courts 
 upon sections 10 and 15. Ante, note to Will, Form No. 1, § 210. 
 "Davenport v. Farrar, 1 Scam. 314; Stribling v. Ross, 16 111. 123. 
 
 14 Davenport v. Farrar, supra; Atkin v. Merrill, 39 111. 62. 
 
 15 Stow v. Steel, 45 111. 328 ; Steele v. Magie, 48 111. 396. 
 
 "Stow v. Steel, supra; Strawn v. Strawn, 46 111. 412. She is not dow- 
 able out of land where the husband assigned a contract for the purchase. 
 Owen v. Bobbins, 19 111. 554. 
 16 
 
242 TO WHAT DOWER ATTACHES. [CH. 2XXVIIL 
 
 dower." And where the personal representative pays the pur- 
 chase money for land out of the money of the estate, and re- 
 ceives a deed therefor, executed prior to the death of the 
 intestate, in pursuance of a contract entered into before his 
 death, the widow is entitled to dower in the premises, but can- 
 not elect to take one-third of the purchase money." 
 
 § 517. If the husband holds land in trust for another, the 
 wife of the trustee is not entitled to dower ; but until the estab- 
 lishment of the trust, the widow is prima facie entitled to 
 dower. 1 " 
 
 § 518. Dower attaches to wild lands. 30 
 
 § 519. The fact that there are children, in nowise affects the 
 widow's right to dower. 31 And where a party dies intestate, 
 leaving no lineal descendants, his widow will take one-half of 
 his lands in fee, and dower in the other half ; but the dower in 
 the last half cannot be one-third of the whole. 21 
 
 § 520. Dower and homestead interests are independent of 
 each other. And the mere fact that a widow is occupying one 
 of several distinct parcels of land as a homestead, in each of 
 which she is entitled to dower, will not authorize the allotment 
 of her entire dower interest in all the parcels out of that por- 
 tion occupied as a homestead." 3 
 
 ,§521. The statute authorizing county courts to assign 
 dower does not compel the personal representative to take any 
 steps to have this done in case of a sale by him of lands to pay 
 the debts of the deceased. "Whether he will do so or not, is a 
 matter of discretion. We have seen, ante, § 503, that the pur- 
 
 " Skinner v. Newberry, 51 111. 203. 
 
 18 Strawn v. Strawn, 46 III. 412. In this case Strawn had purchased from 
 a man in Kentucky, who had executed the deed before Strawn's death, 
 and placed it in the hands of his agent in Jacksonville, Strawn's widow, 
 as administratrix, paid the money, and then claimed one-third as much 
 money as she had paid. 
 
 19 Bailey v. West, 41 111. 290. 
 
 20 Schnebly v. Schnebly, 26 111. 116. 
 
 81 Skinner v. Newberry, 51 111. 203. 
 
 82 Ringhouse v. Keever, 49 111. 470. 
 
 83 Peyton v. Jeffries, 50 111. 143 ; Walsh v. Reis, ib. 477. 
 
err. xxxvni.] homestead. ' 2-13 
 
 chaser takes lands purchased at an administrator's sale subject 
 to all encumbrances thereon. But, as the widow is entitled in 
 all cases to retain the full possession of the dwelling house in 
 which her husband most usually dwelt next before his death, 
 together with the out-houses and plantation thereto belonging, 
 free from molestation and rent, until her dower is assigned ; " 
 and, as all other lands of the deceased are liable to contribute 
 towards her dower, and, as the adjustment of dower is always 
 uncertain and sometimes expensive, it would generally be diffi- 
 cult to sell such lands for their full value before the rights of 
 those interested are settled by the allotment of dower to her. 
 The best interests of all parties may therefore require that 
 dower be allotted to her before the order of sale is granted, so 
 that the purchaser may know what he is buying, and the widow 
 the extent of her rights. (For form of petition, see comments 
 on Form No. 70.) 
 
 § 522. It would seem that the proper course to pursue in 
 case either the personal representative 6r the widow seeks to 
 have dower assigned, is to complete the assignment thereof be- 
 fore an order of sale is made. (For form of order appointing 
 commissioners to assign dower, see Form No. 76. Form of 
 commissioners' oath and report, see Forms No. 77 and 78. 
 Form of order approving report of commissioners, No. 79, and 
 see note to Form No. 70.) 
 
 § 523. We have just been considering the subject of the 
 dower interest of the widow, which can in general be easily and 
 satisfactorily disposed of. But there is another right which the 
 widow or minor children may have in all or a portion of the 
 real estate of the deceased, which, owing to its recent creation 
 by statute, is not very fully understood in its bearing upon the 
 settlement of estates. Heretofore courts have interpreted the 
 homestead statute mainly with reference to its effect upon con- 
 veyances and judgment liens. The statute is not, in respect to 
 the interests of the widow and minor children in the homestead, 
 sufficiently definite to be satisfactory. However these may be 
 
 "Gross' Stat. 219, Tit. Dower, § 27; Frank v. Baxter, 48 111. 406. 
 
244 HOMESTEAD. [CH. XXXVIII. 
 
 defined hereafter by judicial determination, the questions arising 
 out of them will be embarrassing for a long time yet. 
 
 Sometimes it may be advisable for the personal representa- 
 tive to delay for years the sale of land to pay debts, as was 
 the case in Burson v. Good-speed, 5 Leg. News, 242, in order 
 to save sacrificing the property. In that case the land was sub- 
 ject to both dower and homestead rights. 
 
 § 524. The statute does not appear to have conferred juris- 
 diction upon county courts to dispose of questions arising out of 
 homestead exemptions in the settlement of estates. Therefore, 
 where their determination is absolutely essential to do complete 
 justice to all parties, in proceedings by the personal represent- 
 ative to sell real estate for the payment of debts, it would seem 
 that courts of equity were the proper places to seek relief. 
 
 § 525. The statute, Laws of 1873, title Homestead Exemp- 
 tion, section 1, provides, in substance, that every householder, 
 having a family, shall be entitled to an estate of homestead, to 
 the extent in value of one thousand dollars, in the farm or lot 
 of land and buildings thereon owned or rightly possessed, by 
 lease or otherwise, and occupied by him or her as a place of 
 residence ; and that the same shall be exempt from sale for the 
 payment of the debts of such occupant, and from the law of 
 descent and devise ; and section 2 provides that such exemption 
 shall continue after the death of such householder, for the bene- 
 fit of the husband or wife surviving, so long as he or she con- 
 tinues to occupy such homestead, and of the children until the 
 youngest child becomes twenty-one years of age. Section 6 pro- 
 vides that, when a homestead is conveyed by the owner thereof, 
 such conveyance shall not subject the premises to any lien or 
 incumbrance to which it would not have been subject in the 
 hands of such owner ; and the proceeds thereof, to the extent 
 of the amount of one thousand dollars, shall be exempt from 
 execution or other process for one year after the receipt thereof 
 by the person entitled to the exemption ; and if reinvested in a 
 homestead the same shall be entitled to the same exemption as 
 the original homestead. By section 7 it is provided that, if a 
 building so exempted is insured in favor of the person entitled to 
 
CH. XXXVIII. J TO WHAT IT ATTACHES. 245 
 
 the exemption, and a loss occurs entitling such, person to the 
 insurance, the money received shall be exempt to the same ex- 
 tent as the building would have been if not destroyed." 
 
 § 526. What constitutes a homestead is clearly defined by 
 the statute. 1st. It consists of land or a lot and buildings there- 
 on. 2d. They must be owned or rightly possessed, by lease 
 or otherwise, by the debtor. 3d. They must be occupied by 
 him as a residence. 4th. He must be a house-holder, having a 
 family. 
 
 I. The homestead may consist of more than one lot or tract 
 of land, but they must adjoin each other and be used as one 
 lot. 2 " It does not include separate lots or tracts not adjoining 
 or contiguous, not even if one of them is a wood-lot. 2 '. Nor 
 does the homestead exemption attach to a tenement, the owner- 
 ship of which is disconnected from the soil on which it stands. 
 Only the owner of the land, his widow and heirs, and not the 
 owner of the building, have the right to claim the benefit of 
 this statute. 28 
 
 II. The homestead exemption attaches by the express lan- 
 guage of the statute to fee simple and leasehold estates. An 
 estate for life is within the statute, 29 so is the equitable title to 
 land under a contract of purchase. 30 When a parol partition 
 between tenants in common is made, and followed by several 
 possession, each can claim the homestead right in the share he 
 possesses. 31 
 
 III. The premises must be occupied by him as a residence. 
 
 25 The act of 1873, Tit. Homestead Exemption, so far as quoted herein, 
 is the same as that of 1872, with two exceptions ; the value of property 
 exempt was by the latter fixed at $1,500, and the last clause of sec. 6 above 
 quoted, was added by the act of 1873. 
 
 26 "Walters v. People, 28 111. 194; Thornton v. Boyden, 31 111. 200. 
 
 M Walters v. People, supra. See Reinbach v. Walter, 27 111. 393, where- 
 in, Caton, J., intimates an opinion upon a hypothetical case. 
 
 88 Brown v. Keller, 32 111. 151. This was decided under the former stat- 
 ute in which the words " or rightly possessed " were not contained. 
 
 29 Deere v. Chapman, 25 111. 610. 
 
 M Blue v. Blue, 38111. 9. 
 
 81 Tomlin v. Hilyard, 43 111. 300. 
 
246 HOMESTEAD ABANDONMENT. [CH. XXXVIII. 
 
 But the debtor may leave his homestead for temporary pur- 
 poses without losing his claim ; but the intention to return 
 must be clearly manifested" Where the claimant removed to 
 another state with his family, and remained there two years 
 and then returned, declaring when he went that he expe«ted to 
 remain, and after he returned declaring that his intention when 
 he left was to remain away, but it was his interest to return, — . 
 it was held that he lost the protection of the homestead exemp- 
 tion ; likewise that he might, after so long a time, be regarded 
 as having abandoned his homestead, without reference to what 
 he said before or after his return. 38 The abandonment of the 
 homestead will not be presumed from the fact that the head 
 of the family is in search of another home, if, being disap- 
 pointed, he may return to the old one ; the first would remain 
 until the second should be acquired." The exemption is also 
 continued for the benefit of the surviving husband or wife, so 
 long as he or she continues to occupy the homestead, and of 
 the children until the youngest becomes twenty-one years of 
 age. But the abandonment of the homestead by the widowed 
 mother has been held not to prejudice the rights of the chil- 
 dren ; for occupancy of the homestead may be by means other 
 than that of actual residence on the premises, by the widow 
 and child. The widow can do no act by which the child can 
 be deprived of the right to the homestead. The right of the 
 child is independent of her right in this respect, and she cannot 
 waive or destroy it ; " 6 therefore, while a release by the widow 
 of her interest in the homestead right is valid as to her, it will 
 not affect the right of the minor children." The idea of a 
 homestead right of the widow in the land of her husband im- 
 plies that it was owned and occupied by the deceased as his 
 home, and is so occupied by his widow." An actual residence 
 
 3! Wright v. Dunning, 46111. 271; Cipperly v. Rhodes, 53 111.346; Wig- 
 gins v. Chance, 54 111. 175. 
 33 Cabeen v. Mulligan, 37 111. 230. 
 84 Walters v. People, 21 111. 179; Kitchell v. Burgwin, lb. 40. 
 
 35 Walters v. People, supra. 
 
 36 Miller v. March, 27 111. 402. 
 
 3 ' Knapp v. Gass, 5 Leg. News, 111. 
 
CH. XXXVIII. J "WHERE IT EXISTS. 247 
 
 on the property, however, is not always necessary. 88 In Wal- 
 ters v. Peoph, 18 111. 194, the widow had not left the premises 
 with intention of abandoning them, but returned thereto as 
 soon as her health would permit, which was in about eleven 
 months after her departure, and the object of her leaving was 
 to receive the care and attention of her friends while in feeble 
 health, occasioned by her approaching confinement; she re- 
 mained at her father's house until her child was born, who was 
 an heir to her deceased husband, and for some time after, till 
 she recovered her health, and she had rented the land during 
 her absence, making no reservation of any part of the land, or 
 of the house, and left no furniture there. It was held that the 
 widow had not forfeited her right to the homestead. The de- 
 sertion of lie family by the husband, leaving them still occu- 
 pying the homestead, is not an abandonment of it as a home- 
 stead. It still continues the home and residence of the hus- 
 band, as well as the family. 8 ' 
 
 IV. The deceased husband must have been a householder, 
 having a family. Having a wife is having a family, and the 
 fact of his residing upon the land would make the debtor a 
 householder. 40 
 
 § 528. A homestead right does not exist in land as against 
 a liability incurred for the purchase or improvement thereof. 41 
 Purchase money under this statute, as well as that in relation to 
 dower does not include money borrowed to pay for the premises, 
 but only the money owing to the vendor of such premises, or 
 those claiming through him, for the premises themselves. 
 
 § 529. Nor does a homestead right exist as against a prior 
 judgment lien or mortgage. 42 
 
 § 530. Where the exemption is continued to a child or 
 children, it cannot be released without an order of a court di- 
 recting the release thereof. 48 
 
 38 See Vansant v. Vansant, 23 111. 536. 
 
 39 Moore v. Dunning, 29 111. 130. * 
 "Kitchell v. Bergwin, 21 111. 40. 
 
 41 Stat. 1873, Tit. Homestead, § 3. 
 
 42 Rheinbach v. Walter, 27 111. 393 ; McCormick v. Wilcox, 25 111. 274. 
 
 43 Stat. § 4. 
 
248 EENUNCIATION OF WILL. [CH. XXXIX 
 
 § 531. We have seen that dower and homestead interests 
 are independent of each other," as the widow may possess the 
 former while the latter may belong only to the minor child of 
 the deceased. And the homestead must contribute to the 
 dower, as well as the other property." But the fact that a 
 widow is occupying one of several distinct parcels of land as a 
 homestead, in each of which she is entitled to dower, will not 
 justify the allotment of her entire dower interest in all the par- 
 cels out of that portion occupied as a homestead.* 8 
 
 CHAPTEE XXXIX. 
 
 RENUNCIATION OF THE WILL BY THE WIDOW OR SUR- 
 VIVING HUSBAND. 
 
 § 531. Renunciation of will — how done — limitation effect. 
 532. Effect upon legacies and bequests to others. 
 
 § 531. The statute, title Administration, section 78, pro- 
 vides that, " The widow or surviving husband of a testate 
 may, at any time within one year from the time at which the 
 will of her or his testate husband or wife was admitted to pro- 
 bate, renounce in writing all her or his claim to the legacies 
 and bequests made for her or him in such will ; in which case 
 she or he shall be allowed the same property as if the husband 
 or wife had died intestate." ' (See Form No. 84.) 
 
 § 532. Section 79 provides that, " In all cases where a 
 
 44 Peyton v. Jeffries, 50 111. 143 ; Walsh v. Reis, 50 111. 477. 
 
 45 Skinner v. Newberry, 51 111. 203. 
 
 46 Peyton v. Jeffries, supra. > 
 
 1 Concerning the renunciation by widows of the benefits of provisions 
 in wills in their favor, and its effect under §§ 10 and 15 of the statute in 
 relation to Dower, see ante, § 210, where these sections are cited, to- 
 gether with decisions thereon. 
 
CH. XL.] DESCENT OF PROPERTY. 249 
 
 widow or surviving husband shall renounce all benefit under 
 the will, and the legacies and bequests therein contained, to 
 other persons, shall, in consequence thereof, become diminished 
 or increased in amount, quantity or value, it shall be the duty 
 of the court, upon settlement of such estate, to abate from or 
 add to such legacies and bequests in such manner as to equal- 
 ize the loss sustained or advantages derived thereby, in a cor- 
 responding ratio to the several amounts of such legacies and 
 bequests, according to the amount or intrinsic value of each." 
 
 CHAPTBE XL. 
 
 DESCENT OP PROPERTY. 
 
 § 533. Statutory provisions. 
 533a. The rights of heirs, devisees and legatees in the estate vest at the 
 moment of the decease — but as to what time the right of the 
 widow to her award vests, is unsettled. 
 
 § 533. The act of 1872, title Descent of Property, provides 
 as follows: 
 
 Section 1. That estates, both real and personal, of residents 
 and non-resident proprietors, in this state, dying intestate, or 
 whose estates or any part thereof shall be deemed and taken as 
 intestate estate, after ' all just debts and claims against such es- 
 tates are fully paid, shall descend to and be distributed in the 
 manner following, to-wit : 
 
 First. — To his or her children and their descendants, in equal 
 parts ; the descendants of the deceased child or grandchild tak- 
 ing the share of their deceased parents in equal parts among 
 them. 
 
 1 The meaning of this section would be more clear if it read thus : That 
 estates within this state, both real and personal, of resident and non-resi- 
 dent proprietors, dying intestate, or any part of such estates deemed and 
 taken as intestate estate, after, etc. 
 
250 DESCENT OF PROPERTY. [CH. XL. 
 
 Second. — When there is no child of the intestate, nor descend- 
 ant of such child, and no widow or surviving husband, then 
 to the parents, brothers and sisters of the deceased, and their 
 descendants, in equal parts among them, allowing to each of the 
 parents, if living, a child's part, or to the survivor of them if 
 one be dead, a double portion ; and if there is no parent living, 
 then to the brothers and sisters of the intestate, and their 
 descendants. 
 
 Third. — "When there is a widow or surviving husband, and 
 no child or children, or descendants of a child or children of 
 the intestate, then, after payment of all just debts, one-half of 
 the real estate and the whole of the personal estate shall de- 
 scend to such widow or surviving husband, as an absolute 
 estate forever. 2 
 
 Fourth. — When there is a widow or a surviving husband, 
 and also a child or children, or descendants of such child or 
 children of the intestate, the widow or surviving husband shall 
 receive as his or her absolute personal estate, one- third of all 
 the personal estate of the intestate. 
 
 Fifth. — If there is no child of the intestate, or descendant 
 of such child, and no parent, brother or sister, or descendant of 
 such parent, brother or sister, and no widow or surviving hus- 
 band, then such estate shall descend in equal parts to the next 
 of kin to the intestate, in equal degree — computing by the 
 rules of the civil law — and there shall be no representation 
 among collaterals, except with the descendants of brothers and 
 sisters of the intestate ; and in no case shall there be any dis- 
 tinction between the kindred of the whole and the half blood. 
 
 Chancellor Kent (4 Com. 407), treating upon the question, 
 who are next of kin by the civil law after descendants, parents 
 and brothers and sisters, refers to the provisions of the para- 
 
 8 By this section each is made an heir to the other, Sturgis v. Ewing, 18 
 111. 176 ; Ringhouse v. Seever, 49 111. 470. But the widow may find it 
 preferable to have her dower in the real estate. See ante, § 210, where the 
 widow's right of election under sections 10 and 15 of the statute Tit. Dower, 
 are explained with reference to their effect upon this statute. In Tyson 
 v. Postlethwaite, 13 111. 727, it was held that this clause is not in conflict 
 with § 15 of the Stat. Tit. Dower, quoted ante, § 514. See also, ante, § 519. 
 
CH. XL.] DESCENT OP PROPERTT. 251 
 
 graph last quoted from . the statute, and says, grandparents 
 take the estate before uncles and aunts. And on page 408, he 
 says : "In default of lineal descendants, and parents, and' 
 brothers and sisters and their descendants, and grandparents, 
 the inheritance goes to the brothers and sisters equally, of 
 both the parents of the intestate, and their decendants. If all 
 stand in equal degrees of consanguinity to the intestate, they 
 take per capita; and if in unequal degrees, they take per stirpes." 
 Sixth. — If any intestate leaves a widow or surviving hus- 
 band, and no kindred, his or her estate shall descend to such 
 surviving widow or husband. 
 
 Seventh. — If the intestate leaves no kindred, and no widow 
 or husband, his or her estate shall escheat to the state. 
 
 Section 2. — An illegitimate child shall be heir of its mother 
 and any maternal ancestor, and of any person from whom its 
 mother might liave inherited, if living ; and the lawful issue 
 of an illegitimate person shall represent such person, and take, 
 by descent, any estate which the parent would have taken, if 
 living. 
 
 Second, — The estate, real and personal, of an illegitimate 
 person, shall descend to and vest in the widow or surviving hus- 
 band and children, as the estate of other persons in like cases. 
 Third. — In case of the death of an illegitimate intestate, 
 leaving no child or descendant of a child, the whole estate, 
 personal and real, shall descend to and absolutely vest in the 
 widow or surviving husband. 
 
 Fourth. — When there is f?o widow or surviving husband, 
 and no child or descendants of a child, the estate of such person 
 shall descend to and vest in the mother and her children, and 
 their descendants — one half to the mother, and the other half 
 to be equally divided between her children and their descend- 
 ants — the descendants of a child taking the share of their 
 deceased parent or ancestor. 
 
 Fifth. — In case there is no heir as above provided, the estate 
 of such person shall descend to and vest in the next of kin to 
 the mother of such intestate, according to the rule of the civil 
 law. 
 
252 DESCENT OF PEOPEETY [CH. XL. 
 
 Sixth. — When there are no heirs or kindred, the estate of 
 such person shall escheat to the state, and not otherwise. 
 
 "Where a minor child has been adopted, under the statute 
 (Laws of 1867, p. 133 ; Gro. Stat. p. 319, § 38), by any person, 
 for the purpose of enabling him to inherit from the adopted 
 father or mother, such child will inherit from the person adopt- 
 ing him as if the relation of parent and child existed between 
 them ; but the adopted father or mother cannot inherit from the 
 child ; and to all other persons the adopted child stands, for 
 the purposes of inheritance, as if there was no such adoption. 
 
 Section 3. An illegitimate child whose parents have inter- 
 married, and whose father has acknowledged him or her as his 
 child, shall be considered legitimate. 
 
 Section 4. Any real or personal estate given by an intes- 
 tate in his lifetime as an advancement to any child or lineal 
 descendant, shall be considered as part of the intestate's estate, 
 so far as it regards the divisions and distribution thereof among 
 his issue, and shall be taken by such child or other descendant 
 towards his share of the intestate's estate. ; but he shall not be 
 required to refund any part thereof, although it exceeds his 
 share. 
 
 Section 5. If such advancement is made in real estate, and 
 the value thereof is expressed in the conveyance or in the 
 charge made thereof by the intestate, or in the written acknowl- 
 edgment thereof by the party receiving it, it shall be considered 
 as of that value in the divisions and distribution of the estate ; 
 otherwise, it shall be estimated* according to its value when 
 given. 
 
 ' Section 6. If such advancement is made in personal estate 
 of the intestate, the value thereof to be estimated the same as 
 that of real estate ; and if, in either case, it exceeds the share 
 of real or personal estate, respectively, that would have come 
 to the heir so advanced, he shall not refund any part of it, but 
 shall receive so much less of the other part of the intestate's 
 estate as will make his whole share equal to the shares of other 
 heirs who are in the same degree with him. 
 
 Section 7. No gift or grant shall be deemed to have been 
 
CH. XL. J DESCENT OF PEOPEETY. 253 
 
 made in advancement unless so expressed in writing or charged 
 in writing, by the intestate, as an advancement, or acknowl- 
 edged in writing by the child or other descendant. 
 
 Section 8. If a child or other descendant so advanced, dies 
 before the intestate, leaving issue, the advancement shall be 
 taken into consideration in the division or distribution of the 
 estate of the intestate, and the amount thereof shall be allowed 
 accordingly by the representatives of the heirs so advanced, as 
 so much received towards their share of the estate, in like man- 
 ner as if the advancement had been made directly to them. 
 
 Section 9. A posthumous child of an intestate shall receive 
 its just proportion of its ancestor's estate. in all respects as if 
 he had been born in the lifetime of the father. 
 
 Section 10. If, after making a last will and testament, a 
 child shall be born to any testator, and no provision be made 
 in such will for such child, the will shall not on that account 
 be revoked ; but unless it shall appear by such will that it was 
 the intention of the testator to disinherit such child, the devises 
 and legacies by such will granted and given, shall be abated in 
 equal proportions to raise a portion for such child equal to that 
 which such child would have been entitled to receive out of 
 the estate of such testator if he had died intestate ; and a mar- 
 riage shall be deemed a revocation of a prior will. 
 
 Section 11. Whenever a devisee or legatee in any last will 
 and testament, being a child or grandchild of the testator, shall 
 die before such testator, and no provision shall be made for 
 such contingency, the issue, if any there be, of such devisee or 
 legatee, shall take the estate devised or bequeathed, as the de- 
 visee or legatee would have done had he survived the testator ; 
 and if there be no such issue at the time of the death of such 
 testator, the estate disposed of by such devise or legacy shall 
 be considered and treated in all respects as intestate estate. 
 
 Section 12. All such estate, both real and personal, as is not 
 devised or bequeathed in the last will and testament of any person 
 shall be distributed in the same manner as the estate of an intes- 
 tate ; but in all such cases the executor or executors, adminis- 
 
254 DESCENT OF PROPERTY. [CH. XL. 
 
 trator or administrators with the will annexed, shall have the 
 preference in administering on the same. 
 
 Section 13, after repealing former statutes, provides that, 
 nothing contained in this section (13) shall be so construed as 
 to affect any suits that may be pending, or any rights that have 
 accrued at the time this act shall take effect. (July 1, 1872.) 
 
 § 533a. It is perfectly well settled that the rights of heirs, 
 devisees and legatees in the estate vest from the moment of the 
 decease. So, also, that the interest of a distributee of the per- 
 sonal estate, who dies thereafter, will go to his personal repre- 
 sentative, and not to his heirs. 8 And this principle applies as 
 well to the distributive share belonging to the widow, as to 
 those shares belonging to other heirs of the deceased.* 
 
 So, also, does the right of the widow to the specific articles 
 allowed to her upon the death of her husband, vest in her and 
 not in the administrator. And should she die before reducing 
 those articles or their value to possession, and before adminis- 
 tration is granted upon the husband's estate, her administrator 
 may sue for and recover the value from her husband's estate. 6 
 
 8 1 Redf. Wills, § 30 b. pi. 3, 4, 5, 6. Ante, § 226. 
 
 4 Mills v. Marshall, 8 Ind. 54: See Cross v. Carey, 25 111. 562. 
 
 6 York's Adm'r v. York's Adm'r, 38 111. 522. It was likewise held in this 
 case, that it is not the duty of the appraisers of the estate of the husband, 
 to set apart the specific articles to the widow, but simply to certify their 
 value to the county court. Also, that it is the duty of the administrator of 
 the husband's estate to set them off to the widow or to her administrator, 
 and if he fails to do so, it would be evidence of a conversion, and he would 
 be liable for their value, if such articles or their value belonged to the 
 husband's estate. Also that in a suit therefor against the personal repre- 
 sentative of the husband, it must be shown that these specific articles, or 
 their value in money or other property belonged to the husband's estate at 
 the time of his death. 
 
 The facts of this case are not fully set out in the report. But it appears 
 that the widow survived her husband only ten days, and that administra- 
 tors for both estates were appointed shortly after the widow's death, and 
 perhaps, that no appraisers of the husband's estate were appointed. They 
 had no children, nor had the widow any family living with her, or minor 
 children. The widow's administrator, thirteen months after administra- 
 tion granted, filed his claim in the county court for the value of the speci- 
 fic articles, and it was disallowed, but on appeal to the circuit court, he 
 recovered two hundred and forty-six dollars. The report does not show 
 
OH. XLI.J SETTLEMENT AND DISTRIBUTION. 255 
 
 CHAPTEE XLI. 
 SETTLEMENT AND DISTRIBUTION. 
 
 § 534. General view of the subject — Duty of the personal representative 
 to exhibit his accounts to the court annually — may be required 
 by the court to do so oftener. Pinal settlement — discharge — 
 notice of final settlement. 
 
 535. Statutory provisions. 
 
 536, 537. What the personal representative is bound to account for. 
 
 538. If the estate is insufficient to pay all of the debts, — the court to 
 
 make an order apportioning the moneys, etc. 
 
 539. If the personal representative fails to plead the statute of limita- 
 
 tions to a claim against the estate, the heirs may plead it on set- 
 tlement or may have a remedy on his bond. 
 
 540. The case of He-ward v. Slagle — special circumstances. 
 
 541. Personal representatives in some cases may be compelled to pay 
 
 over to heirs and legatees a portion of the dividend, etc. 
 
 542. And he may pay debts before ordered by the court. 
 
 543. Courts of equity have paramount jurisdiction in cases of adminis- 
 
 tration, and may control courts of law, etc. 
 
 544. County courts required to enforce settlement of estates — citation 
 
 — attachment — contempt — removal — costs. 
 544a. Personal representative liable for interest in certain cases. 
 
 545. If personal representative fails or refuses to pay over moneys, he 
 
 may be attached — may be liable on his bond for devastavit. 
 
 546. The same subject. 
 
 547. Of the demand for payment. 
 
 548. Payment of legacies — the order of their payment. 
 
 what the items of the claim were, nor the evidence to support the claim, 
 so we can only conjecture the reason of so small a verdict. 
 
 Now, the award being merely a statutory provision, and the statute hav- 
 ing directed how and by whom it is tp be estimated and set off, it appears 
 to me that the statutory proceeding only should have been pursued. The 
 widow's administrator should have asked the county court to require the 
 appraisers to make the estimate, and direct the administrator to set off the 
 articles. If they refused to act, new appraisers should have been appoint- 
 ed. There is a sort of discretion given appraisers in these cases, and there 
 is, besides, a propriety in their performing this duty rather than the county 
 judge or a jury. They are usually neighbors, and know or can know all 
 the facts concerning the widow and her family and the husband's estate 
 much better than a judge or jury could well be made to understand them. 
 
256 SETTLEMENT AND DISTEIBUTION. [CH. XLI. 
 
 § 549. Refunding bond may be required. 
 
 550. Tender of a refunding bond dispensed with under peculiar cir- 
 
 cumstances. 
 
 551. The county court to apportion payment on refunding bonds — re- 
 
 fusal by distributee or legatee — action to be instituted. 
 
 552. When there are two or more personal representatives and one of 
 
 them takes all or a greater part of the estate and refuses to account 
 with the other — the remedy. 
 
 553. Insolvent estates — when found to be so, entered of record — per- 
 
 sons entitled to receive their proportions. 
 
 554. Unclaimed money to be deposited with the county treasurer — per- 
 
 sons entitled thereto, how they may proceed to get it. 
 
 § 534. At the first term after the expiration of one year 
 from the date of his letters, and annually thereafter, it is the 
 duty of the personal representative to exhibit his accounts of 
 administration to the county court, and he may be oftener re- 
 quired by the court to do so, until the administration is com- 
 pleted. And the court may order a partial distribution of 
 moneys of the estate when these settlements are made. After 
 two years have elapsed from the date of his letters, if all the as- 
 sets have been collected and the debts of the estate have been 
 established, he should make a final settlement, when the court 
 will order a distribution of the moneys and other property re- 
 maining in his hands, among the parties entitled thereto ; and 
 upon his compliance with such order, and the satisfactory 
 showing thereof, the court will make a further order approving 
 of the same. But the statute provides that no final settlement 
 shall be made and approved by the court, unless the heirs of 
 the decedent have been notified thereof, in such manner as the 
 court may direct. This notice might properly be in writing, 
 and served on them personally, or by mailing properly ad- 
 dressed to them. (For forms of settlement, order of distribu- 
 tion and of discharge, see Forms No. 85 to 90.) 
 
 § 535. The statute, section 112, provides that, "All execu- 
 tors and administrators shall exhibit accounts of their adminis- 
 tration, for settlement, to the county court from which the 
 letters testamentary or of administration were obtained — at 
 the first term thereof after the expiration of one year after the 
 
CH. XLI.] WHAT TO ACCOUNT FOR " 2'57 
 
 date of tbeif letters ; and in like manner every twelve months 
 thereafter, or sooner, if required, until the duties of their ad- 
 ministration are fully completed : Provided, that no final settle- 
 ment shall be made and approved by the court, unless the heirs 
 of the decedent have been notified thereof, in such manner as 
 the court may direct." 
 
 § 536. We have seen elsewhere, under the heads of " In- 
 ventory" and "Collection of Assets," the principal things 
 which the personal representative is bound to account for as 
 assets ; but there are certain other assets which he is liable for 
 and which he should charge himself with, in his account, — 
 such as rents of lands purchased by him in payment of debts 
 due the estate. Prom these, however, are to be deducted 
 taxes, repairs and other necessary expenses. 1 He is also charge- 
 able, as we have elsewhere seen, for interest and profits derived 
 from moneys and personal property of the estate. 2 He will be 
 liable for interest in certain other cases, where he has not com- 
 plied with the statute. (See post, § 545.) 
 
 § 537. "Where the administrator had made profits out of the 
 funds of the estate, by purchasing therewith bank paper at a 
 discount, and with it paid debts of the estate, he was required 
 to account to the estate for those profits. But he was allowed 
 to charge for necessary and reasonable outlays and expendi- 
 tures in procuring such bank paper. He had a right to an al- 
 lowance for his own means used in doing this, and interest 
 thereon, and for his traveling expenses and time employed in the 
 transaction. The remainder of the profits belonged to the estate. 3 
 
 § 538. Section 113 provides that, " Upon such settlement 
 of the accounts of an executor or administrator, the court shall 
 • ascertain the whole amount of moneys and assets belonging to 
 the estate of the deceased, which have come into the hands of 
 such executor or administrator, and the whole amount of the 
 debts established against such estate ; and if there is not suffi- 
 cient to pay the whole of the debts, the moneys aforesaid shall 
 
 ' Kruse v. Steffens, 47 111. 112. 
 s Bowan v. Kirkpatrick, 14 111. 1. 
 • Wingate v. Pool, 25 111. 118. 
 17 
 
258 PAYMENT OP DIVIDENDS. [CH. XLI. 
 
 be apportioned among the several creditors pro rata, according 
 to their several rights, as established by this act; and thereupon 
 the court shall order such executor or administrator to pay the 
 claims which have been allowed by the court, according to 
 such apportionments; and the court, upon every settlement, 
 shall proceed in like manner until all the debts due are paid, 
 or the assets exhausted." (See Form No. 91.) 
 
 § 539. In Stillman v. Young, 16 HI. 318, it was held that 
 the failure of the personal representative to plead the statute 
 of limitations to a claim presented against the estate will not 
 bar or preclude the heirs from pleading it on settlement. 4 But 
 they may also have a remedy on his bond, where he is guilty 
 of laches in not defending a suit at law." 
 
 § 540. In Heward v. Slagle, 52 111. 336, where the circum- 
 stances were peculiar, and the proceedings of the personal rep- 
 resentative such as to seriously complicate the case, the court 
 said, "The probate court in a case of this kind should, on 
 trial of it, proceed as though a bill in chancery had been filed, 
 hear the evidence, and investigate the account without the in- 
 tervention of a jury, unless it should be necessary to impannel 
 a jury to try some issue of fact that may be made up, as in 
 chancery cases." 
 
 § 541. The court may cite the personal representative and 
 order him to pay over to an heir as well as a legatee a portion 
 of the dividend to which he is entitled, whenever it shall ap- 
 pear that there are assets to satisfy all demands against the 
 estate; and this may be done at any time after letters are 
 ; granted. A year need not elapse first. Such an order is not a 
 judgment against the personal representative to be satisfied in 
 •due course of administration, but may be enforced by an at- 
 tachment for contempt.' Nor is such an order regarded as an 
 order for the support of the heir, though his necessities may 
 have prompted him to ask for the distribution." 
 
 ■* See ante, §386. 
 -■» Gold v. Bailey, 44 111. 491. 
 
 ■'Reynolds v. People, 55 111. 328. And the citation and attachment 
 ^should run in the name of the people. 
 
CH. XLI.J SETTLEMENT ENFORCED. 259 
 
 § 542. And the personal representative may pay debts of 
 the estate before orders of the court are made. 7 It can be a 
 devastavit only in case some other creditor or distributee is in- 
 jured by it 
 
 § 543. Courts of equity have paramount jurisdiction in 
 cases of administration and settlement of estates, and may 
 control courts of law in their settlement and distribution." In 
 Townsend v. Badeliffe, the personal representative had made 
 final settlement with the county court, and been ordered by 
 that court to pay over the balance in his hands to the persons 
 legally entitled to receive it, without determining who the 
 proper distributees were, and the court held that it was a 
 proper subject for relief in equity. 
 
 §544. Section 114 provides that, "The county courts of 
 this state shall enforce the settlements of estates within the 
 time prescribed by law, and upon the failure of an executor or 
 administrator to make settlement at the next term of the court 
 after the expiration of said time, the conrt shall order a cita- 
 tion to issue to the sheriff of the county where the executor or 
 administrator resides, or may be found, requiring said execu- 
 tor or administrator to appear at the next term of the court 
 and make settlement of the estate, or show cause why the same 
 is not done ; and if an executor or administrator fails to appear 
 at the time required by such citation, the court shall order an 
 attachment requiring the sheriff of the county where the execu- 
 tor or administrator resides, or may be found, to bring the 
 body of said executor or administrator before the court ; and 
 upon a failure of an administrator or executor to make settle- 
 ment under the order of the court after having been so attached, 
 he may be dealt with as for contempt, and shall be forthwith 
 removed by the court, and some discreet person appointed in 
 his stead ; the costs of such citation or attachment to be paid 
 by the delinquent executor or administrator, and the court 
 
 ' Walker v. Craig, 18 111. 116. 
 
 8 Grattan v. Grattan, 18 111. 171; Townsend v. Radcliffe, 44 111.446; 1 
 Story's Eq. Jur. Chap. 9. 
 
260 ORDER TO PAY MONEYS. [CH. XLI. 
 
 shall enter a judgment therefor, and a fee bill may issue there- 
 on." (For citation and orders, see Forms No. 92-95.) 
 
 § 544 a. The same section (No. 114), further provides that, 
 " All moneys, bonds, notes and credits which any administrator 
 or executor may have in his possession or control as property 
 or assets of the estate, at a period of two years and six months 
 from the date of his letters testamentary or of administration, 
 shall bear interest, and the executor or administrator shall 
 be charged with interest thereon from said period at the rate- 
 of ten per cent, or after two years and six months from any 
 subsequent time, that he may have discovered and received 
 the same, unless good cause is shown to the court why such 
 should not be taxed." 
 
 § 545. Section 115 provides that, " If any executor or ad- 
 ministrator shall fail or refuse to pay over any moneys or divi- 
 dend to any person entitled thereto, in pursuance of the order 
 of the county court, lawfully made, within thirty days af- 
 ter demand made for such moneys or dividend the court, 
 upon application, may attach such delinquent executor or ad- 
 ministrator, and may cause him to be imprisoned until he 
 shall comply with the order aforesaid, or until such de- 
 linquent is discharged by due course of law ; and moreover, 
 such failure or refusal on the part of such executor or adminis- 
 trator shall be deemed and taken in law to amount to a devasta- 
 vit,' and an action upon such executor's or administrator's bond, 
 and against his securities, may be forthwith instituted and main- 
 tained ; and the failure aforesaid to pay such moneys or divi- 
 dend, shall be sufficient breach to authorize a recovery thereon." 
 (See forms under this section Nos., 96-99.) 
 
 § 546. The county court can only make an order to pay 
 over moneys under section 115. It has no power to render a 
 judgment in favor of the heirs or legatees, against the personal 
 representative, for failing or refusing to pay over to such heirs or 
 legatees their portions of the estate of the deceased. If he fails 
 or refuses to comply with the order of the court, requiring him 
 to make such payment, the remedy is by attachment for con- 
 
 9 He may be removed. Ante, § 255, 
 
CH. ill] refunding bond. 261 
 
 tempt of court." The order directing the payment is conclu- 
 sive unless appealed from, and if not complied with, entitles 
 the persons in whose favor it is made to recover for a devqstavil 
 upon the personal representative's bond, against principal and 
 security. 11 
 
 § 547. The demand required by the statute was intended to 
 protect parties from needless costs; but where the personal 
 representative dies after an order of distribution, but before 
 demand for payment is made, the securities on his bond can- 
 not shield themselves from a judgment against them, because 
 of the omission. And it is*not necessary that an administrator 
 of the deceased personal representative should have been ap- 
 pointed, and demand made on him before commencing suit on 
 the bond. 12 
 
 § 548. Section 116 provides that, " Whenever it shall ap- 
 pear that there is sufficient assets to satisfy all demands against 
 the estate, the court shall order the payment of all legacies men- 
 tioned in the will of the testator, the specific legacies being the 
 first to be satisfied." IS 
 
 § 549. Section 117 provides that, " Executors and admin- 
 istrators shall not be compelled to pay legatees or distributees 
 until bond and security is given by such legatees or distribu- 
 tees to refund the due proportion of any debt which may after- 
 wards appear against the estate, and the costs attending the re- 
 covery thereof ; such bonds shall be made payable to such ex- 
 ecutor or administrator, and shall be for his indemnity and (be) 
 filed in the court." (See bond, Form No. 100.) 
 
 io pjggot v. Barney, 1 Scam. 145. 
 
 11 Ralston v. "Wood, 15 111. 159 ; Neubrecht v. Santemeyer, 50 111. 74. The 
 personal assets of an estate become legally vested in the personal repre- 
 sentative, and the heirs cannot maintain an action at law, in their own 
 right, for any portion of such personal estate, until an order of court for 
 distribution has been obtained. Then the legal title vests in the distribu- 
 ters, lb. 
 
 18 People v. Admire, 39 111. 251. 
 
 18 A specific legacy is a bequest of a particular thing or money specified 
 and distinguished from all other things of the same kind, as of a particu- 
 lar horse, a particular piece of plate, a particular term of years, and the 
 like. Bouvier's L. D. 
 
262 SETTLEMENT. [CH. XLL 
 
 § 550. Where the personal representative died after an or- 
 der of distribution was entered, but before demand made on him 
 by the heir for his distributive share of the estate and a re- 
 funding bond tendered, and no administrator of the deceased 
 personal representative was appointed; it was held that an ac- 
 tion might be sustained by the distributee against the securities 
 on the bond of the personal representative." 
 
 § 551. Section 118 provides that, "When, at any time after 
 the payment of legacies or distributive shares, it shall be nec- 
 essary that the same or any part thereof be refunded for the 
 payment of debts, the county co\irt, on application made, 
 shall apportion the same among the several legatees or distribu- 
 tees according to the amount received by them, except the 
 specific legacies, which shall not be required to be refunded, 
 unless the residue is insufficient to satisfy such debts ; and if 
 any distributee or legatee refuses to refund according to the 
 order of the court, within sixty days thereafter, and upon de- 
 mand made, such refusal shall be deemed a breach of his bond 
 given to the executor or administrator as aforesaid, and an ac- 
 tion may be instituted thereon for the use of the party entitled 
 thereto ; and in all cases where there is no bond, an action of 
 debt may be maintained against such distributee or legatee, 
 and the order of the court shall be evidence of the amount 
 due." (See forms, under this section, Nos. 101, 102.) 
 
 § 552. Section 119 provides that, " Where there are two or 
 more executors or administrators of an estate, and any one of 
 them takes all or a greater part of such estate and refuses to 
 pay the debts of the decedent, or refuses to account with the 
 other executor or administrator, in such case the executor or 
 administrator aggrieved may have his action of account or suit 
 in equity against such delinquent executor or administrator, 
 and recover such proportionate share of said estate as shall 
 belong to him ; and every executor, being a residuary legatee, 
 may have an action of account or suit in equity against his co- 
 executor or co-executors, and recover his part of the estate in 
 his or their hands. Any other legatee may have the like 
 
 14 People v. Admire, 39 111. 251. 
 
* 
 CH. XLI.J MONEY TO BE DEPOSITED. 263 
 
 remedy against the executors : Provided, that before any action 
 shall be commenced for legacies as aforesaid, the court shall 
 order them to be paid." 
 
 § 553. Section 129 provides that, " If, after the expiration 
 of two years from the time administration is granted on an 
 estate, such estate is found to be insolvent, it shall be so 
 entered of record by the county court and such order made. 
 No action shall be maintained against the executor or adminis- 
 trator of such estate except at the costs of the party suing ; 
 but persons entitled thereto shall receive their proportions of 
 such estate as herein provided." (Declaration that the estate 
 is insolvent, Form No. 103.) 
 
 § 554. By the R. S. 1874, title, Escheats, it is provided : 
 " § 1. That if any person shall die seized of any real or per- 
 sonal estate without any devise, and leaving no heirs or repre- 
 sentatives capable of inheriting the same, or the devisees there- 
 of be incapable of holding the same, and in all cases when 
 there is no owner of real estate capable of holding the same, 
 such estate, both real and personal, shall escheat to and vest in 
 the county in which said real and personal estate, or a greater 
 portion thereof, is situated." " § 2. In case said estate shall 
 consist of personal property, letters of administration shall be 
 granted thereon, as in other case3* and the same shall be ad- 
 ministered in conformity with the probate laws of this state. 
 Should there be any balance left in the hands of the adminis- 
 trator after the payment of debts and costs of administration, 
 said administrator shall report the same to the probate court, 
 with a statement of all the facts within his knowledge, as to 
 the heirship of said decedent, which facts shall constitute a 
 part of his report, and be spread upon the records of said court ; 
 • and it shall be the duty of said court to enter an order direct- 
 ing said administrator to pay over the balance found in his 
 hands to the county treasurer of said county, taking his receipt 
 therefor, which receipt shall be filed with the county clerk and 
 entered of record, and shall be a good and sufficient voucher to 
 said administrator. The said county clerk shall also charge 
 said amount to the county treasurer as an escheat fund, espec- 
 ially designating from whose estate the same was derived." 
 
♦ 
 264 MARSHALLING ASSETS. [CH. XLH. 
 
 CHAPTEE XLII. 
 
 MARSHALLING ASSETS. 
 
 § 555, 556. Of the primary fund for payment of debts — order of priority. 
 
 557. Testator's intent to change the order of priority — how manifested. 
 
 558. Of debts insufficiently secured by mortgage, when the estate is in- 
 
 solvent. 
 
 559. Definitions of specific legacies and devises, and residuary legacies 
 
 and devises. 
 5G0. Priority of contribution to payments of debts, as between specific 
 
 and residuary devises. 
 561, 562. Of incumbrances on lands created by former proprietor — 
 
 What fund primarily liable for their payment — How liability 
 
 changed. 
 563, 564. Of subrogation to the rights of creditors where debts have been 
 
 paid out of a fund not primarily liable. 
 
 § 555. In the settlement of estates, questions sometimes 
 arise whether certain debts owing by the deceased, shall be 
 paid, or certain liens and incumbrances upon his property dis- 
 charged, out of real estate or out of personal property, and 
 which of these shall form a primary fund for that purpose. 
 Questions of this character are treated of in works on equity 
 under the head of marshalling assets. "What will here be said 
 upon this subject must necessarily be brief. 
 
 § 556. It is well settled that personal estate is the primary 
 fund for the discharge of debts, and is to be first applied and 
 exhausted, even to the payment of the debts with which the real 
 esfcate is charged by mortgage ; for the mortgage is understood 
 to be merely a collateral security for the personal obligation. 
 The order of marshalling assets in equity towards the payment 
 of debts, is to apply to, 
 
 1. The general personal estate. 
 
 2. Estates specially and expressly devised for the payment 
 of debts, and for that purpose only. 
 
 3. Estates descended 
 
 4. Estates devised, though generally charged with the pay- 
 ment of debts. 
 
CH. XLIT.] PAYMENT PRO RATA. 265 
 
 It requires express words, or the manifest intent of the tes- 
 tator to disturb this order. 1 
 
 § 557. Upon the question of the testator's intent to vary 
 the usual order of liability of property for the payment of 
 debts, the case of McCallum v. Ohidester, 111. Sup. Ct. 1873, 5 
 Ch. Leg. News, 463, is a good illustration. In that case the 
 court held that where a person owning real and personal estate 
 and owing debts, makes a nuncupative will, disposing of his 
 personal estate, upon his death, the personal property vests in 
 the legatee, according to the terms of the will, and the real 
 estate becomes the primary fund for the payment of the testa- 
 tor's debts ; but if this should prove insufficient, the personal 
 estate bequeathed must answer for the deficiency. But where 
 lands are devised "subject to the payment of the testator's just 
 debts," this is not sufficient to change the order of liability. 
 These words provide no more than the law applicable to the 
 case had already provided. The lands were by law liable to 
 the payment of debts if the personal estate was insufficient for 
 that purpose. In order to relieve the personal estate from its 
 prior liability and subject other property to the payment of 
 debts in its place, the estate intended for that purpose must be 
 particularly devised for the payment of the debts, and for that 
 purpose only," except, as in the case last cited, where the per- 
 sonal estate only was devised, and for another purpose. 
 
 § 558. Where the decedent has secured a debt by mortgage 
 upon his real estate, and this security is insufficient, and the 
 estate is insolvent, courts have not been uniform in their de- 
 cisions upon the question whether the mortgage creditor may 
 prove up his claim and take his pro rata share of the other as- 
 sets, and also foreclose his mortgage for the remainder of his 
 debt, or have only his pro rata share of the estate upon the 
 amount due him after deducting the sum realized from the 
 mortgaged property. This question has not been adjudicated 
 by the supreme court of Illinois, but those decisions of other 
 courts which seem to have been best considered, and are most 
 
 1 4 Kent's Com. 420, and notes; 3 Redf. "Wills, § 43, pi. 9, 11, 18 cl. (1.) 
 8 3 Redf. Wills, § 43, pi. 18, cl. 2, 3, and cases cited. 
 
266 MARSHALLING ASSETS. [CH. XLII. 
 
 consistent with the principles of equity, declare that a creditor 
 of an insolvent estate, having a mortgage as security for his 
 debt, of less value than the amount of the debt, can claim 
 against the personal representative only the difference be tween 
 his debt and the value of the property mortgaged. 8 
 
 § 559: The debts and the costs of administration having 
 been paid, the statute next provides for payment of specific 
 legacies. A specific legacy is a bequest of a particular thing, 
 whether animate or inanimate, and it may consist of a definite 
 sum of money or quantity of personal property." A devise of 
 real estate is always specific. 5 And a residuary legacy is the 
 estate bequeathed which remains after payment of debts and 
 specific bequests. So a residuary devise is the estate devised 
 which remains after specific devises have been satisfied. 
 
 § 560. "Where the bequest of the personal estate and the 
 devise of the real estate are both specific, both must contribute 
 to the payment of debts pro rata." But as between a residuary 
 devise and a specific devise, the former must be made to con- 
 tribute to general pecuniary legacies charged upon all of the 
 estate generally. 7 
 
 § 561. There is one class of burdens which rests primarily 
 upon specific real estate, though embraced within the general 
 mass of indebtedness of the testator. This will embrace all 
 
 8 See 3 Bedf. Wills, § 43, pi. 15 and notes, where the authorities are stated 
 and discussed, and Amory v. Francis, 16 Mass. 308. This subject is one 
 of great difficulty and might properly be considered by the legislature. 
 Perhaps it would be well to require the administrator to sell the mort- 
 gaged property as soon as it becomes apparent that the estate is insolvent, 
 and pay the proceeds to the mortgagee ; and that the mortgagee should be 
 entitled to h.is pro rata share of the remaining estate of the deceased on 
 only so much of his claim as thereafter remains unpaid. Where a debt is 
 otherwise secured the distribution should be made on a like principle. 
 
 * Bouvier, L. D. 2 Eedf. Wills, § 7, pi. 1-29 ; 2 Lead. Ca. Eq. 481. 
 
 6 2 Kedf. mils, § 7, pi. 7. But see particularly 3 Redf. Wills, § 43, n. 35, 
 36, 47, and cases there cited, which throw a reasonable doubt over the rule. 
 
 6 Long v. Short, 1 P. Wms. 403 ; Gervis v. Gervis, 14 Sim. 654 ; 2 Lead. Ca. 
 Eq. 250. But see contra, Rogers v. Rogers, 1 Paige, 188. 
 
 'Spong v. Spong, 3 Bligh, N. S. 84; Hensman v. Fryer, Law Rep. 3 Ch. 
 App. 420. 
 
CH. XLII.J INCUMBRANCES. 267 
 
 estates which the testator had acquired, subject to incum- 
 brances created by others." The purchase of the estate subjects 
 the vendee to the payment or keeping down, of the charge, as 
 an equitable implication from the acceptance of the title. But 
 whether any express covenant or contract is given to that effect 
 is immaterial ; the real estate will be regarded as the primary 
 fund from which the payment is to be made, unless there is 
 some direction, or reasonable implication, in the will, that it 
 shall be made from some other special fund, or that it shall rest 
 upon the same basis as the other debts due from the estate." 
 But if the incumbrance was created by the testator, either be- 
 fore or after the making of the will, it must be paid by the ex- 
 ecutor out of the personalty, unless there is a clear intention indi- 
 cated by the will, that the devisee shall take the estate with the 
 burden." 10 And it seems that parol evidence is not admissible 
 to show either directly, or by way of presumption and infer- 
 ence, that it was the testator's intention to have an incumbrance 
 upon a devised estate paid out of his personalty, where the 
 presumption of law is otherwise." 
 
 § 562. The same rule extends to all incumbrances upon 
 land, devised or descended, where the incumbrance is not the 
 debt of the ancestor. The debt or incumbrance remains a 
 charge upon the land merely, and is not entitled to exoneration 
 out of the personal estate, or out of other lands." It is not suf- 
 ficient to make the incumbrance a charge upon the personal es- 
 tate, that the devisor or ancestor might have been compelled 
 to pay the same, as between himself and the original debtor 
 creating the charge." For it is always the case as between the 
 grantor and the grantee of an incumbered estate." To have 
 
 8 Lechmore v. Charlton, 15 Vesey, 193. 
 
 9 Andrews v. Bishop, 5 Allen, 490. But see Leming's Est. 52 Penn. St. 
 135. 
 
 10 Gould v. Winthrop, 5 R. I. 319 ; Hoff's Appeal, 24 Penn. St. 200. 
 
 11 Rapalye v. Kapalye, 27 Barb. 610; Swann v. Swann, 5 Jones' Eq. 297. 
 " Hewes v. Dehon, 3 Gray, 205, 208. 
 
 13 Scott v. Beecher, 5 Mad. 96. 
 
 14 Campbell v. Shrum, 3 Watts, 60 ; Trevor v. Perkins, 5 Whart. 244. 
 
268 LAPSED LEGACIES. [CH. XLIII. 
 
 this effect the devisor or ancestor must have assumed the debt 
 as between himself and the creditor in the incumbrance ; and it 
 will not be sufficient that he has entered into a bond or cove- 
 nant with the debtor to see him harmless in regard to it. 16 
 
 § 563. It is considered a well settled rule in marshalling 
 assets in equity, that wherever a charge is paid from a fund not 
 primarily liable to its payment, the party injured thereby is 
 entitled to be subrogated to the rights of the other creditor, and 
 thus enforce the claim against the fund primarily responsible 
 for its payment." 
 
 § 564. A widow who has joined with her husband in the 
 mortgage of her separate estate to secure his debt, and which 
 she has paid since his death, for the purpose of exonerating her 
 estate, may prove the amount against his estate. And a credi- 
 tor of the estate, whose debt is secured by a mortgage of the 
 wife's separate property, may prove his debt against the estate 
 without first relinquishing his mortgage." 
 
 CHAPTEE XLIIL 
 
 LAPSED LEGACIES. 
 
 § 565. Lapsed legacies defined. 
 
 566. General rule qualified by statute of Illinois. 
 
 567. Instances where legacies lapse. 
 
 568. The rule of survivorship among joint legatees. 
 
 569. Legatee for life and of the remainder, both dying, the legacy 
 
 lapses. 
 
 570. Language which will prevent the lapse. 
 
 571. If no residuary bequest, a lapsed legacy goes to the heir. 
 
 "Tweddell v. Tweddell, 3 Br. C. C. 101, 152; Butler v. Butler, 5 Vesey, 
 534; Cumberland v. Codrington, 3 Johns. Ch. 229; 4 Kent, 420. 
 
 16 Johnson v. Child, 4 Hare, 87; Lilford v. Keck, Law Rep. 1 Eq. 347 
 
 17 Savage v. Winchester, 15 Gray, 543. 
 
CH. XLIII.] LEGACIES IN TBU3T. 269 
 
 § 565. A devise or legacy is said to lapse which fails or 
 takes no effect, in consequence of the death of the devisee or 
 legatee before that of the testator; or other cause. 1 A distinc; 
 tion exists when the matter is not regulated by statute between 
 
 • a lapsed or void devise of real estate, and a lapsed or void be- 
 quest of personalty. The former goes to the heir, and the 
 latter falls into the residuum, — goes to the residuary legatee. 3 
 § 566. The statute of Illinois, 1872, title Descent, § 11, has 
 qualified the general rule. It provides that, whenever, a de- 
 visee or legatee in any last will and testament, being a child 
 or grandchild of the testator, shall die before such testator, and 
 no provision shall be made for such contingency, .the issue, ii 
 any there be, of such devisee or legatee, shall take the estate 
 devised or bequeathed as the devisee or legatee would have 
 done had he survived the testator ; and if there be no such issue 
 at the time of the death of such testator, the estate disposed of 
 by such devise or legacy shall be considered and treated in all 
 respects as intestate estate. And § 12 provides that, all such 
 estate, both real and personal, as is not devised or bequeathed 
 in the last will and testament of any person, shall be distrib- 
 uted in the same manner as the estate of an intestate. 
 
 § 567. A legacy to one in trust for another will not lapse 
 by reason of the death of the trustee before the testator ; 3 but a 
 legacy to one on condition that he attains twenty-one years of 
 age, will lapse if he dies before that age.* And legacies charged 
 upon real estate lapse if the legatee dies before the time of pay- 
 ment. 6 
 
 § 568. The rule of survivorship among joint legatees is 
 
 thus stated by Mr. Justice Metcalf;' "It is a rule of the com- 
 
 1 Wharton's L. D. 
 
 5 Cox v. Harris, 17 Md. 23 ; Brown v. Higgs, 4 "Vesey, 708 n. b. and cases 
 cited (Sumner's Ed.) ; Helms y. Franciscus, 2 Bland. (Md.) 546 ; and see 
 Torgree v. Kutwell, 13 Md. 415 ; 2 Redf. Wills, § 6, pi. 4 and n. Ante,§ 532. 
 
 'Moggridge v. Thackwell,l Vesey, Jr. 464. 
 « Colt v. Colt, 33 Conn. 270. 
 
 "Lyman v. Vanderspiegel, 1 Aikens, (Vt.) 275. But see Birdsall v 
 Hewlett, 1 Paige, 32. 
 
 6 Jackson v. Roberts, 14 Gray, 546 ; S. P. Stires v. "Van Rensselaer, 2 
 Bradf. Sur. Rep. 172. 
 
270 LAPSED LEGACIES. [CH. XLIII. 
 
 mon law, that a legacy lapses, or is extinguished, by the death 
 of the legatee while the testator is alive. This rule does not 
 apply to legacies given to two or more jointly (in joint tenancy), 
 but does apply to legacies given to two . or more as tenants 
 in common, and it is repeatedly stated in the books that when 
 an aggregate fund is bequeathed to several legatees, to be 
 divided among them, by name, in equal shares, if any of them 
 die before the testator, what was intended for such will lapse. 
 But where a legacy is given to a class of persons, in general 
 terms, as tenants in common, as, to all of my brothers, the 
 death of one or more of them before the testator will not cause 
 a lapse of any part of the fund, but the survivors of the class 
 will take the whole." 
 
 § 569. Where both the legatee for life and the one in re- 
 mainder die before the testator, the whole estate falls into the 
 residue. So where the legacy is given upon a condition prece- 
 dent not performed. 7 
 
 § 570. The general rule is, where a legacy is given, and no ■ 
 provision is made that it shall go to the heir or next of kin or 
 personal representative, in some form to clearly indicate that 
 those terms are used to designate the persons described by them, 
 in order to have them take directly under the will, as if they 
 were purchasers, the legacy will lapse in case the legatee dies 
 before the testator ; for the presumption is, that these terms of 
 succession are used to mark the extent of the interest thus in- 
 tended to be conveyed to the legatee or devisee, and are there- 
 fore words of limitation merely. 8 The language used should 
 point out the person or persons who are to take in case of the 
 pre-decease of the legatee, and not merely specify the interest 
 intended to be given. . If it does no more than indicate the ex- 
 tent of such interest the legacy will lapse. 
 
 § 571. "When a legacy lapses, there being no residuary be- 
 quest, it will go to the next of kin as estate undisposed of by 
 will. 9 
 
 1 Prescott v. Prescott, 7 Met. 141. 
 
 8 3 Eedf. Wills, § 8, pi. i; Dickinson v. Purvis, 8 8. & K. 71. 
 
 "Armstrong v" Moran, 1 Bradf. Sur. R. 314. 
 
CH. XLIV.] OF DEVASTAVITS. 271 
 
 CHAPTEE XLIV. 
 
 OF DEVASTAVITS BY EXECUTORS AND ADMINISTRATORS. 
 
 § 572, 573, 574. Defined and remedy stated. 
 574a. Support of minor heirs — when not a devastavit. 
 
 § 572. A devastavit is a mismanagement and waste by the 
 personal representative of the estate and effects entrusted to 
 him as such representative, by which a loss occurs. It takes 
 place 1st, by direct abuse, as if he sells, embezzles, or converts 
 to his own use the estate entrusted to "him ; 2d, by mal-adminis- 
 tration, as by the payment of claims which are not owing, or 
 paying others out of the order in which they ought to be paid, 
 or by payment of legacies before all the debts have been satis- 
 fied ; or 3d, by neglect. The neglect to sell goods in a reason- 
 able time, or, if perishable, before they are wasted, will be 
 deemed a devastavit. So will a neglect to collect a doubtful 
 debt, which by proper exertion, might have been collected, 
 will be so considered. And the party who has been guilty of 
 a devastavit may be required to make up the loss out of his own 
 estate. 1 
 
 § 573. Where the personal representative, on the sale of 
 property belonging to the estate, received the notes of the ptir- 
 ohasers with security, and it resulted that the principals and 
 sureties were insolvent, this was held a prima facie neglect of 
 duty by him, and that he was guilty of a devastavit? This 
 would place upon him the burden of showing in defense that 
 the sureties were solvent and of sufficient ability to render the 
 debts secure when the notes were taken. 
 
 § 574. So it is a devastavit for the personal representative 
 
 1 Bouv. L. D. and authorities cited. 
 
 8 Curry v. People, 54 111. 263. And it was held in this case that the 
 claimant was not bound to show there were not other assets from which 
 his claim would he ultimately paid. 
 
272 COUNTY COUETS — OFFICER'S FEES. [CH. XLV 
 
 to loan money of the estate, unless authorized by will, and 
 creditors, legatees and distributees may sue and recover on his 
 bond.' 
 
 § 574a. But in Johnston v. Maples, 49 111. 401, it was held 
 not to amount to a devastavit for an executor to furnish food 
 and clothes for the support of minor heirs, having no guardian, 
 and that he should be allowed to charge a reasonable compen- 
 sation therefor, until an order of court could be obtained.* 
 
 CHAP TEE XLV. 
 
 POWERS OF COUNTY COURTS. — SHERIFFS' DUTIES. 
 
 § 575. General powers of courts under the statute in relation to administra- 
 tion. Laws 1872, 1851. 
 
 576. Powers of county courts and clerks. Laws of 1849. 
 
 577. Sheriffs' duties, powers and compensation. 
 
 § 575. The general powers of county courts with reference 
 to administration of estates are specified in section 131, as fol- 
 lows: 
 
 " County courts shall have power to enforce due observance 
 of all orders, decisions, judgments and decrees made by them 
 in discharge of their duties under this act (title Administra- 
 tion) ; and they may issue attachments for contempt offered 
 such courts or their process, by any executor, administrator, 
 witness or other person ; and may fine or imprison, or either, 
 all such offenders, in like manner as the circuit courts may do 
 in similar cases." 
 
 § 576. By the revised statutes, 1874, title, County Courts, 
 it is proyided: § 5. County courts shall have jurisdiction in all 
 matters of probate, settlement of estates of deceased persons, 
 appointment of guardians and conservators, and settlements of 
 
 3 Johnston v. Maples, 49 111. 401, and see ante, § 255. 
 
 4 See Fitzgerald v. Glancy, 49 111. 465. 
 
CH. XL VI.] APPEAL — WRITS — CERTIORARI. 273 
 
 tbeir accounts, all matters relating to apprentices, * * and 
 in proceedings by executors, administrators, guardians and 
 conservators for the sale of real estate for purposes authorized 
 by law. * * All of which, except as hereinafter provided, 
 shall be considered as probate matters, and be cognizable at 
 the probate terms hereinafter mentioned. § 6. The terms of 
 county court for probate matters shall commence en the third 
 Monday of each month, * * and shall always be open for 
 the granting of letters testamentary and guardianship, and for 
 the transaction of probate business. § 111. The court shall 
 have the power to impanel a jury in any case cognizable at the 
 probate terms, * * whenever it shall be necessary for the 
 trial of any matter pending before the court. 
 
 § 577. Section 132 provides that, " That the sheriff shall, 
 when required by the court, attend all sessions of said court, 
 either by himself or deputy, and shall preserve good order in 
 the court and execute all writs and attachments, summonses, 
 subpoenas, citations, notices and other processes which may, at 
 any time, be legally issued by such court, and make return 
 thereof. And such sheriff shall be entitled to the same fees 
 as he is allowed for similar services in the circuit court." 
 
 CHAPTBE XLYI. 
 
 APPEALS, WRITS OP ERROR AND CERTIORARI. 
 
 § 578.» Appeals allowed, and bonds. 
 
 579. Bills In chancery better than an appeal in special circumstances. 
 
 580. Condition of the bond in case of appeal, writ of error or certiorari- 
 
 §578. Section 124 provides that, " Appeals shall be allowed 
 from all judgments, orders or decrees of the county court in all 
 matters arising under this act, to the circuit court, in favor of 
 any person who may consider himself aggrieved by any judg- 
 
 1 See Statute Tit. " Fees and Salaries," § 19. 
 18 
 
274 MISCELLANEOUS. [CH. XLVII. 
 
 ment, order or decree of such court, and from the circuit court 
 to the supreme court, as in other cases, and bonds with security 
 to be fixed by the county or circuit court, as the case may be." 
 
 § 579. In the case of Heward v. Slagle, 52 111. 336, there 
 were special circumstances, and the court intimate that a bill in 
 chancery rather than an appeal was the proper remedy for the 
 heirs to take who were dissatisfied with the settlement. 
 
 § 580. And section 125 provides tbat, " In all cases when 
 an executor or administrator shall take an appeal from the 
 judgment, decree or order of any court or justice of the peace 
 to the county, circuit or supreme court, or when he may pros- 
 ecute writs of error, or certiorari, the appeal, certiorari or super- 
 sedeas bond shall be conditioned to pay the judgment or decree, 
 with costs, in due course of administration ; in all other respects 
 such bonds shall be in the form prescribed by law in other 
 cases." 
 
 CHAPTEE XLVII. 
 
 MISCELLANEOUS. 
 
 § 581. Compensation of the personal representative. 
 
 582. Account books of decedent subjectto inspection. 
 
 583. Construction of the statute. Statutory provisions. 
 
 584. Suits against heirs and devisees where administration is not be- 
 
 gun within a year. 
 
 | 581. Section 133 provides that, " Executors and adminis- 
 trators shall be allowed, as compensation for their services, a 
 sum not exceeding six per centum on the amount of personal 
 estate, and not exceeding three per centum on the money aris- 
 ing from the sale of real estate, with such additional allowances 
 for costs and charges in collecting and defending the claims of 
 the estate and disposing of <the same, as shall be reasonable." 
 (As to fees allowed administrators to collect, see ante, § 231.) 
 
 An attorney who is an administrator, is not entitled to an al- 
 
CH. XL VII.] MISCELLANEOUS. 275 
 
 lowance against the estate for his professional services. They 
 are regarded as a gratuity. 1 
 
 § 582. Section 128 provides that, " The books of account 
 of any deceased person shall be subject to the inspection of all 
 persons interested therein." 
 
 § 583. Section 134 provides that, " All the provisions in 
 this act relative to an executor shall apply and extend to an 
 executrix or administratrix, or executors or administrators, and 
 vice versa, unless otherwise expressly provided for ; and when- 
 ever the singular number or the masculine gender is mentioned 
 the provisions shall apply to two or more and to the feminine 
 gender, as the case may require, and this act shall be liberally 
 construed, so that its true intent [and meaning] may be fully 
 carried out." 
 
 The repealing section, (135) provides that, " This section 
 shall not effect any suits that may be pending or any rights 
 that have accrued when this act shall take effect." 
 
 § 584 The statute, title Frauds and Perjuries, § 11, pro- 
 vides that, "If no person shall administer on the goods and 
 chattels of a deceased person for the space of one year after 
 his or her death, a separate suit or action may be maintained 
 against the heir or heirs, devisee or devisees, on all the con- 
 tracts and undertakings of such deceased person." The heir 
 or devisee in such cases would be responsible upon such con- 
 tracts or undertakings to the extent of the assets descended or 
 devised to him. Section 12 provides that, in suits commenced 
 under the foregoing section the facts authorizing the suit to be 
 brought separately against the heir or devisee, shall be dis- 
 tinctly set forth in the declaration. 
 
 1 Willard v. Bassett, 27 111. 37. 
 
276 GIFTS MOETIS CAUSA. [CH. XLVIII. 
 
 CHAPTER XLVIII. 
 
 GIFTS MORTIS CAUSA. 
 
 § 585. Gift mortis causa defined — its essentials enumerated. 
 
 586. It is conditional — intention of donor. 
 
 587. How it confers title. 
 
 588. Clear proof required to sustain it. 
 
 589. No limit to its extent, if creditors are not defrauded. — Not affected 
 
 by a previous will. 
 
 § 585. Connected occasionally with the collection of the 
 assets of the estate and the allowance of claims in favor of 
 creditors, are questions concerning gifts in prospect of death 
 Such a gift is often called a gift mortis causa, or a donatio mortis 
 causa. It may be defined as a gift of personal property, by a 
 person who is in peril of death, upon condition that it shall 
 presently belong to the donee, in case the owner shall die, but 
 not otherwise. 1 
 
 1. It is essential to such a gift that the donor make it in his 
 last illness, or in contemplation and expectation of death. The 
 apprehension of death may arise from infirmity or old age, or 
 from external and anticipated danger. 3 But the peril need not 
 be such as to indicate speedy dissolution, nor need the condi- 
 tion of the donor be such that he is incapable of making a 
 will. 3 The apprehension of death, however, must arise from 
 illness affecting him at the time of making the gift/ 
 
 2. The gift to operate as a good donatio mortis causa, must 
 be made to take effect only in the eVent of the donor's death, 
 by his existing disorder. A gift to take effect immediately is 
 not such a gift." 
 
 1 1 Story's Eq. § 606. 
 
 3 2 Kent. 444; 3 Eedf. "Wills, § 42, pi. 5 (1). 
 8 Nicholas v. Adams, 2 "Wharf. 17. 
 
 4 "Wins' Ex'rs. 687. As to the proof that the gift was in contemplation 
 of death, see 3 Redf. "Wills, § 42, n. 11. 
 
 6 3 Redf. Wills, § 42, pi. 5, cl. 2. 
 
CH. XL VIII.] GIFTS MORTIS CAUSA. 2.77 
 
 3. There must be a delivery of it to the donee, or to some 
 one in trust for him, and possession must continue in the donee 
 or trustee till the death of the donor." But articles in a store- 
 room or warehouse may be sufficiently delivered by delivering 
 to the donee the key to the room or building in which they are 
 stored. 7 
 
 4. The delivery is insufficient unless the donor parts with 
 all control over the subject of the gift. Authorities are all 
 agreed upon this. 
 
 5. Money and bank notes, also notes of private individuals 
 and drafts payable to the donor, and bonds and mortgages, 
 are proper subjects of gift mortis causa, and need not be in- 
 dorsed or assigned." 
 
 6. But the promissory note or other contract of the donor 
 by which he undertakes to pay money, either during his life, 
 or out of his estate after his decease, will not constitute a valid 
 gift mortis causa ; neither will his draft or check unaccepted. 9 
 
 7. A deed of personal estate to the wife, the donee having 
 the control and management of it till the donor's death, has 
 been held a good donatio mortis causa. 10 
 
 8. A person may, by way of donatio mortis causa, remit a 
 debt due him, by a surrender of the securities, with a verbal 
 declaration of intention to that effect" 
 
 § 586. Gifts mortis causa are always conditional, and de- 
 pend upon the contingency of expected death, and they are de- 
 feasible by revocation, or deliverance from the peril. To con- 
 stitute a good donatio mortis causa the circumstances must be 
 such as to show that the donor intended the gift to take effect 
 
 6 lb. cl. 3. 
 
 1 Smith, v Smith, Strange, 955. 
 
 8 3 Redf. "Wills, § 42, pi. 5, cl. 8, 9 and note 37; 2 Kent, 447 and notes; 
 lb. 445, n. 2. 
 
 9 3 Redf. "Wills, § 42, pi. 5, cl. 10 and notes ; 2 Kent, 447. 
 
 10 Meach v. Meach, 24 Vt. 591. But the reasoning on this point is not 
 very satisfactory. In Smith v. Downey, 3 Ired. Ch. 268, it was intimated 
 that such a mode of conveyance would not be effectual to create a gift 
 mortis causa, without delivery. 
 
 11 3 Redf. "Wills, § 42, pi. 10. 
 
278 GIFTS MOETIS CAUSA. [CH. XLVIII. 
 
 if he should die shortly afterwards, but if he should recover, 
 the thing should be restored to him." And the death of the 
 donee during the donor's life operates as a revocation." 
 
 § 587. The donee in this species of gift derives his title 
 directly from the donor, and not in any sense from the per- 
 sonal representative of the donor ; " and the donation is in no 
 sense of the character of a testamentary gift." A gift mortis 
 causa may be made for a special purpose, and coupled with a 
 trust." 
 
 § 588. In order to sustain such a gift, the proof must be 
 clear of the donor's intention to make an absolute gift in con- 
 templation of death, and the burden is necessarily on the donee. 
 The temptations are so many, and the facilities so great for un- 
 scrupulous persons to defraud the heirs by means of these 
 gifts, that the question of fact whether a particular gift mortis" 
 causa has been made or not, is examined with jealous care." 
 
 § 589. There is no limit to the extent of such a gift, pro- 
 vided there is other property of the donor sufficient to satisfy 
 his creditors." And with reference to its effect after his death, 
 it is good notwithstanding a previous will." 
 
 12 Nicholas v. Adams, 2 Whart. 17 ; 2 Kent, 444. 
 
 "Walter v. Hodge, 2 Swanst. 101. 
 
 14 Gaunt v. Tucker's Ex'rs, 18 Ala. 27. 
 
 16 1 Story's Eq. § 606. 
 
 16 Hills v. Hills, 8M.&W. 401 ; Blount v. Burrow, 4 Br. C. C. 72. 
 
 " "Westerloo v. Dewitt, 35 Barb. 215. 
 
 18 Meach v. Meach, supra; Chase v. Bedding, 13 Gray, 418; Mitchell v. 
 Pease, 7 Cush. 350. But see Headley v. Kirby, 18 Penn. 326, where it was 
 held that a gift, in prospect of death, of all the donor's property was in- 
 valid. 
 
 19 2 Kent, 444. It was doubted in Hambrooke v. Simmons, 4 Buss. 25, 
 whether donatio mortis causa is avoided by making a subsequent will. 
 
FORMS. 
 
 Morm No. 1. 
 
 (See ante, §§ 138, 281.) 
 
 PROOF OF DEATH AND PETITION FOR LETTERS TESTA- 
 MENTARY. 
 
 To the Honorable Judge of the County Court of County, in the State of 
 
 The petition of the undersigned, F B , respectfully represents 
 
 that A B , late of the county of aforesaid, departed this life at 
 
 , in said county, on or about the day of , 18—, leaving a last 
 
 will and testament, which is herewith presented to your honor for probate. 
 
 That said will is subscribed by O S and E S , of in 
 
 said county, as witnesses to the execution thereof. 
 
 That said testator in said will nominated and appointed F B , 
 
 your petitioner, executrix thereof, and that your petitioner is willing and 
 ready to accept the office and trust confided to her. 
 
 And this petition further shows that the said A B died seized 
 
 and possessed of real* and personal estate consisting chiefly of , all of 
 
 said personal estate being estimated to be worth about dollars. (And 
 
 if bond by the executor is dispensed with in the will add, and the debts 
 of said estate do not exceed in amount dollars.) 
 
 In consideration whereof, and to the end that said will may be proved , 
 established and performed, your petitioner prays that the subscribing wit- 
 nesses aforesaid may be summoned to be and appear before this court at 
 such time as the court may direct, then and there to testify in the matter 
 of said will, and that probate of said will may be thereupon granted and 
 the same ordered for record. 
 
 And your petitioner furthei prays that your honor will grant her letters 
 testamentary of said last will and testament, upon her taking the oath 
 prescribed by the statute and entering into bond in such sum and with 
 such securities as may be approved by your honor. 
 
 F B . 
 
 State op Illinois, ) gs 
 
 County. ) ' 
 
 F B , being duly sworn, deposes and says that the facts averred 
 
280 FORMS. [NO. II. 
 
 in the above petition are true, according to the best of her knowledge, in. 
 formation and belief. 
 
 F B . 
 
 Sworn to and subscribed before me, , Clerk of the County 
 
 Court of county, this day of , 18 — . 
 
 , Clerk. 
 
 See especially as to the allegations of the petition §§ 137, 138, 134. If there is real 
 estate to be disposed of by the executor, its value may be stated after the asterisk in 
 this form. 
 
 Form Wo. 2. 
 
 (Ante, §§ 147, 148, 160-167.) 
 
 PROOF BY SUBSCRIBING "WITNESSES OF THE EXECUTION OF 
 
 THE WILL. 
 
 State of Illinois, ) 
 County. ) ' 
 
 J U and R F , of , in the county of , in the state 
 
 of , being duly sworn on their oath say, that they were acquainted 
 
 with A B , the testator in the last will and testament here in court 
 
 produced (or hereunto annexed), and who is now deceased; that they 
 
 were present at , on or about the day of , 18 — , and saw him sign 
 
 his name to said will (ante, §§ 34-36) ; or, and that he acknowledged the 
 signature to said will to be his act and deed (§ 148) ; or, and that the name 
 
 of said A B was signed to said will by said J C , in the 
 
 presence and at the request of said A B (§ 164) ; and that they be- 
 lieved him to be of sound mind and memory at that time ; that he was of 
 full age, and that they attested said will in his presence. 
 
 J— C— . 
 
 R F . 
 
 Subscribed and sworn to before me (Oro. Stat. 530, § 6); or, in open' 
 
 court, this day of , 18 — , 
 
 , ClerJc. 
 
 This form may be varied to suit the facts in each case. If one of the witnesses is 
 dead, or has gone to parts unknown, that fact must be carefully shown, §§ 157, 169, and 
 proof of his having actually signed the will, made by some person who saw him do it, 
 or his handwriting shown by some person who is acquainted with it, and swears that it 
 is his handwriting. 
 
NO. III.] FORMS. 281 
 
 Form Ho. 3. 
 
 (Form of dedimus potestatem to take the testimony of a witness who is a non-resident 
 of the connty, or state, or unable to attend, ante, § 155.) 
 
 DEDIMUS TO PROVE WILL. 
 
 State_otIl™s, J ss _ In the County Court. 
 
 The People of the State of Illinois, 
 
 To (this must be directed to a judge, justice of the peace, mayor or other 
 chief magistrate of the city, town, corporation or county where the 
 witness may be found). 
 
 Whereas, a writing, purporting to be the last will and testament of 
 
 , deceased, has been produced in said court for probate of the same, 
 
 upon which will the names of and appear as subscrib- 
 ing witnesses thereto, which said will is hereunto annexed, and it being 
 represented to said court that the said subscribing witness reside at 
 
 , in the county of , and state of , and without the limits of this 
 
 state (or county,) and that said witness unable to attend said court. 
 
 Now, therefore, we do hereby, in pursuance of the statute in such case 
 made and provided, authorize you, the said , to cause the said sub- 
 scribing witness to come before you, and to take and certify into our 
 said county court the attestation of said witness in due form of law. 
 
 Witness County Judge of said County, and the 
 
 [seal.] seal of the county court of said county, at , in 
 
 county aforesaid, this day of , A. D. 187 . 
 
 , County Judge. 
 
 Attest: , Clerk. 
 
 State of Illinois, ) 
 
 County. J ' 
 
 I ? , a , in and for said , the person to whom the an- 
 nexed commission is directed, do hereby certify that on the day 
 
 f ] a. D. 187 , and appeared before me in person, 
 
 who, being by me duly sworn, do depose and say, each for himself, that on 
 
 the day of A. D. 187 , signed and published the writing 
 
 annexed hereto, and to said commission, as and for last will and 
 
 testament, in presence ; that the said was of sound mind 
 
 and memory at the time of so executing said will ; that he subscribed 
 
 name thereto as attesting witness at the request and in the presence 
 
 of the said testator, and that he was of full age. 
 
282 FOEMS. [NO. IV, V. 
 
 Sworn to and subscribed before me, the day and year first above written. 
 Witness my hand and seal, at , in said county of . 
 
 There must be a certificate of the proper officer of official character of commissioner 
 annexed to the papers. This form may he varied to conform to the facts of each case. 
 See Form No. 2. 
 
 Form No. 4. 
 
 <§ 156.) 
 
 OF THE ENTRY TO BE MADE BY THE CLERK OE A CIRCUIT 
 COURT, SHOWING: PROOF MADE IN THAT COURT BY A 
 COUNTY JUDGE, WHO IS A WITNESS TO THE EXECUTION 
 OF A WILL. 
 
 In the Matter of the Probate of the Last Will and Testament 
 of A B , Deceased. 
 
 And now, to wit : , 18 — , comes F B , the executrix appointed 
 
 as such in and by the last will and testament of A B , deceased, by 
 
 Mr R. her solicitor, and presents the said will, together with her petition 
 to the county court of county for the probate thereof; and it appear- 
 ing to the court that W S , one of the witnesses to the execution of 
 
 said will, is at this time judge of the county court of said county, and that 
 
 his testimony is necessary to the proof of said will; and the said W 
 
 S having appeared in open court, and upon his oath testified as fol- 
 lows (here insert his testimony as in Form No. 2) ; it is ordered by the 
 court that the proceedings in this cause together with said will and peti- 
 tion be certified by the clerk of this court to the county court of this county. 
 
 Form Ifo. B, 
 (§§ 135, 216. 217.) 
 
 REFUSAL OF A PERSON NAMED AS EXECUTOR TO ACCEPT 
 THE EXECUTORSHIP OF THE WILL. 
 
 To the Honorable Judge of the County Court of County, in the State of 
 
 Illinois: 
 The undersigned, named in the will of A B , deceased, as ex- 
 ecutor thereof, does *herewith present the said will to said court, and ♦re- 
 spectfully decline to act as such executor. C H . 
 
 There may be a simple refusal after prohate to act, in which case the foregoing form 
 will be sufficient by leaving out the words between the asterisks. 
 
NO. VI.] FORMS. 283 
 
 Form No, 6. 
 
 CLERK'S ENTRY OF THE PEOBATE OF WILL AND GRANT 
 OP LETTERS TESTAMENTARY. 
 
 In the Matter of the Probate of the Last Will of A B , 
 
 Deceased, and the Grant of Lettebs Testamentary thekeon 
 to F B . 
 
 And now, to-wit : , 18 — , conies F B , the executrix named 
 
 in the last will of A B , deceased, and presents the said will to the 
 
 court, together with her petition for the prohate of the same and for letters 
 testamentary thereon ; and it appearing from the allegations of said peti- 
 tion (the same being under the oath of said petitioner), that said A 
 
 B departed this life at , on the day of , 18 — , leaving said 
 
 last will, (here set forth all necessary jurisdictional facts, — as, the resi- 
 dence of the deceased, where his real and personal estate are situated, so 
 as to show that the court has jurisdiction of the matter. (See Form No. 
 1, and §§ 137, 138, 134 and 221, etc.) 
 
 And it further appearing to the court from the testimony of J C 
 
 and R F , whose names are subscribed to said will, as attesting 
 
 witnesses to the execution thereof, that they were present on the day 
 
 of , 18 — , at , and saw said A B sign his name to said 
 
 will (or as the fact may be), and that they believed him to be of sound 
 mind and memory at that time ; that he was of full age, and that they 
 attested said will in his' presence. (See Form No. 2). (If the testimony 
 of both witnesses is not alike, the substance of that given by each may be 
 recited. And if one of them is dead that fact may be recited, as well as 
 the proof of his handwriting, etc.) ' And it satisfactorily appearing to the 
 court that said will was in all respects executed and attested according to 
 
 law, and that said A B , deceased, was, at the time of the attestation 
 
 of the same, of sound mind and memory and of full age, (if the will is 
 contested for fraud add, — and no proof of fraud, compulsion or other 
 improper conduct having been exhibited, which in the opinion of the 
 court is sufficient to invalidate or destroy said will). It is ordered and 
 adjudged by the court that the said will be deemed and taken as duly 
 proven, and that the same together with the testimony of the witnesses 
 above named be admitted to record.* 
 
 And it further appearing to the court that the said F B , the 
 
 executrix named in said will, is ready and willing to accept the office and 
 trust therein confided to her, and that the real estate of the testator at the 
 
 disposal of said executrix is of the value of dollars, and the personal 
 
 estate of said testator is of the value of dollars : It is ordered by the 
 
284 FORMS. [NO. VII. 
 
 court that she give bond as such executrix, with good security, in the 
 penal sum of dollars ; and the said executrix having made and pre- 
 sented her bond as above ordered, with C C and J C as 
 
 sureties, the same is approved by the court and ordered to be filed and 
 
 recorded ; and the said F B having also taken the oath required 
 
 by law to be taken by her as executrix : It is further ordered that letters 
 testamentary upon said will be granted to her. 
 
 And it is further ordered by the court that C K , J F 
 
 and W B , of said county, be and are hereby appointed to appraise 
 
 the goods, chattels and estate of said A. B , deceased. 
 
 Note.— It will be observed that the statute of Wills, § 2, does not require the witnesses 
 to swear that they attested the will in the testator's presence, or that he was of full age, 
 yet it requires that the attestation shall he in his presence ; and § 1 requires that he shall 
 he of full age. But those facts being necessary to the validity of the will, I deemed it 
 proper that they appear in the forms. It will also be observed that, § 4 requires non- 
 resident witnesses, whose testimony is taken under a dedimus potestatem, to swear that 
 the testator signed and published the will, or acknowledged the execution thereof as 
 his last will and testament, or that some other person signed the testator's name by his 
 direction; that he was of sound mind and memory, and that the witness subscribed his 
 name as witness thereto, in presence of the testator, and at ' his request. This should 
 be recited in the record where the testimony is taken under a dedimus. And it will be 
 further observed, that, by § 17, a will or codicil revoking a former will or codicil, must 
 be signed by the testator in presence of two or more witnesses, and by them attested in 
 his presence ; and that nothing is here said about the testator acknowledging his signa- 
 ture, or having his name signed in his presence by another, and by his direction. It is 
 to be regretted that the requirements of the sections alluded to are not uniform. 
 
 Form Xo. 7. 
 
 CLERK'S ENTRF WHEN THE TESTATOR DIRECTS IN THE 
 WILL THAT SECURITY BE NOT REQUIRED OF THE EX- 
 ECUTOR 
 
 Proceed as in Form No. 6 to the asterisk, and add: 
 
 And the petitioner having taken the oath required by law to be taken by 
 her as executrix of said will, and it appearing to the court that the tes- 
 tator left visible estate more than sufficient to pay all of his debts, and di- 
 rected in said will that said F B be not required to give security 
 
 as executrix of said will, and the court perceiving no cause from its own 
 
 knowledge, or the suggestions of creditors or legatees of said A B 
 
 to suspect said F B of fraud, or that the personal estate will not 
 
 be sufficient to discharge all the debts : It is ordered by the court that 
 such security be dispensed with, and that letters testamentary on said will 
 be granted to said F B . 
 
STO. VIII.] FORMS. 285 
 
 Form No. 8. 
 
 (§ 828.) 
 
 BOND FOR EXECUTORS, AND ADMINISTRATORS WITH WILL 
 
 ANNEXED. 
 
 Ejtow all Men by these Presents, That we, , and 
 
 , of the county of and state of Illinois, are held and 
 
 firmly bound unto the people of the state of Illinois, in the penal sum of 
 
 dollars, current money of the United States, which payment, well and 
 
 truly to he made and performed, we, and each of us, hind ourselves, our 
 heirs, executors and administrators, jointly, severally and firmly, by these 
 presents. 
 
 Witness our hands and seals, this day of , A. D. 18 — . 
 
 *The Condition of the above Obligation is such, That if the above 
 
 bounden , and , execut of the last will and 
 
 testament of , deceased (or administrator, with the will annexed 
 
 of , deceased), do make, or cause to be made, a true and perfect 
 
 inventory of all and singular the goods and chattels, rights and credits, 
 lands, tenements and hereditaments, and the rents and profits issuing out 
 of the same, of the said deceased, which have or shall come to the hands, 
 
 possession, or knowledge of the said , or into the possession of 
 
 any other person for , and the same so made do exhibit in the county 
 
 court for the said county of , as required by law ; and also make 
 
 and render a fair and just account of actings and doings as such ex- 
 ecut (or administrator) to said court, when thereunto lawfully required ; 
 
 and to well and truly fulfill the duties enjoined upon in and by the 
 
 said will; and shall, moreover, pay and deliver to the persons entitled 
 thereto all the legacies and bequests contained in said will, so far as the 
 estate of the said testat will thereunto extend, according to the value 
 
 thereof, and as the law shall charge ; and shall in general do all 
 
 other acts which may, from time to time, be required of by law, then 
 
 this obligation to be void, otherwise to remain in full force and virtue. 
 
 . [seal] 
 
 . [seal] 
 
 . [seal] 
 
286 FORMS. [NO. IX, X. 
 
 Form tfo. 9. 
 (§§ 138, S22.) 
 
 OATH OF EXECUTOR OR ADMINISTRATOR WITH "WILL AN- 
 NEXED, TO BE ATTACHED TO AND FORM PART OF THE 
 PROBATE OF THE WILL. 
 
 State of Illinois, ) 
 County. ) 
 
 I do solemnly swear that this writing contains the, true last will 
 
 and testament of the within named A B , deceased, so far as I 
 
 know or believe, and that I will well and truly execute the same, by pay- 
 ing first the debts and then the legacies mentioned therein, as far as his 
 goods and chattels will thereunto extend, and the law charge me ; and 
 that I will make a true and perfect inventory of all such goods and chat- 
 tels, rights and credits, as may come to my hands or knowledge, belong- 
 ing to the estate of said deceased, and render a fair and just account of my 
 executorship, when thereunto required by law, to the best of my knowl- 
 edge and ability : so help me God. 
 
 Subscribed and sworn to before me, this day of , A. D. 18 — . 
 
 , Clerk. 
 
 Form ifro. 10. 
 
 am.) 
 
 LETTERS TESTAMENTARY. 
 
 State of Illinois, ) . 
 County. 1 
 
 The People of the State of Illinois, to all to whom these Presents shall come, 
 Greeting : 
 
 Know Ye, That Whereas, A B , late of the county of and 
 
 state of Illinois, died on or about the day of , A. D. 18 — , as it 
 
 is said, after having duly made and published his last will and testament, 
 a copy whereof is hereunto annexed, leaving, at the time of his death, 
 property in this state, which may be lost, destroyed, or diminished in 
 value, if speedy care be not taken of the same ; and, inasmuch as it ap- 
 pears that F B has been appointed executor, in and by the said 
 
 last will and testament, to execute the same : 
 
NO. XL] FOKMS. 287 
 
 And, to the end that said property may be preserved for those who shall 
 appear to have a legal right or interest therein; and that the said ■will 
 may be executed according to the request of the said testator; we do 
 
 hereby authorize him the said F B , as such executor, to collect 
 
 and secure, all and singular, the goods and chattels, rights and credits, 
 which were of the said A B at the time of his decease, in whose- 
 soever hands or possession the same may be found in this state ; and well 
 and truly to perform and fulfill all such duties as may be enjoined upon 
 him by the said will, so far as there shall be property, and the law charge 
 him ; and, in general, to do and perform all other acts which now are, or 
 hereafter may be required of him by law. 
 
 Witness, , Clerk of the County Court, of the said 
 
 [seal.] county of , and the seal of said court, this day of 
 
 , A. D. 18—. 
 
 , Clerk. 
 
 form No. 11. 
 
 (§ 337.) 
 
 CLEEK'S ENTRY OF ORDER APPOINTING AN ADMINISTRA- 
 TOR TO COLLECT. 
 
 In the Matter op the Appointment op an Administrator to Col- 
 lect and Preserve the Estate of A B , Deceased. 
 
 Now, to-wit: , 18 — , it having been made to appear to the satisfac- 
 tion of the court that great delay will be produced in the administration 
 
 of the estate of A B , deceased, by reason of the contest pending 
 
 in relation to the probate of the last will of said A B (or other 
 
 cause, see § 227), and that an administrator to collect and preserve said es- 
 tate ought to be appointed : It is therefore ordered by the court that such 
 
 administration be committed to G C , upon his taking the oath 
 
 prescribed by law, and giving bond with good security in the penal sum 
 
 of dollars. And the said G C now comes and takes his oath 
 
 as administrator to collect, and presents his bond for the sum above men- 
 tioned with C S and R F as his sureties, which is ap- 
 proved by the court and ordered to be filed and recorded; and thereupon 
 it is further ordered by the court that letters of administration to collect 
 and preserve said estate be issued to said ( 
 
288 FOBMS. [NO. XI, XIL 
 
 Form 2To. 11. 
 
 (§ 229.) 
 
 OATH OF ADMINISTRATOR TO COLLECT. 
 
 State op Illinois, ) „_ r ., „ . „ 
 County \ ss. In tiie County Court. 
 
 I do solemnly swear (or affirm) that I will well and honestly discharge 
 
 the trust reposed in me as administrator to collect the estate of A 
 
 B , deceased, according to the tenor and effect of the letters granted to 
 
 me by the county court of county, to the best of my knowledge and 
 
 ability ; so help me Ood. 
 
 Subscribed and sworn to before me this day of , 18 — . 
 
 ' , Clerk. 
 
 Form No. 19. 
 
 (§228.) 
 
 FORM OF BOND OF ADMINISTRATOR TO COLLECT. 
 
 The bond is in the same form as that of executors', see Form No. 8, but 
 the condition is as follows : 
 
 The condition of the above obligation is such that, if the above bounden 
 
 G C shall well and honestly discharge the duties appertaining to 
 
 his appointment as administrator, to collect the estate of A B , late 
 
 of the county of , deceased ; shall make, or cause to be made, a true 
 
 and perfect inventory of all such goods, chattels, debts and credits of the 
 said deceased as shall come to his possession or knowledge, and the same 
 in due time return to the county court of the proper county ; and shall 
 also deliver to the person or persons authorized by said county court, as 
 executors or administrators, to receive the same, all such goods, chattels 
 and personal estate as shall come to his possession, as aforesaid, and shall, 
 in general, perform such other duties as shall be required of him by law, 
 then the above obligation to be void: otherwise to remain in full force 
 and virtue. 
 
NO. XIII, XIV.] FOEMS. 289 
 
 Form No. 13. 
 
 (§ 228.) 
 
 LETTERS OF ADMINISTRATION TO COLLECT. 
 The People of the State of Illinois, to all to whom these presents shall come—* 
 
 GrKEETING : 
 
 Know Ye, that whereas A B , late of the county of , and 
 
 state of Illinois, deceased, as it is said, had at his decease personal prop- 
 erty within this state, the administration whereof cannot be immediately 
 granted to the persons by law entitled thereto, but which, if speedy care 
 be- not taken, maybe lost, destroyed or diminished; to the end, therefore, 
 that the same may be preserved for those who shall appear to have a legal 
 right or interest therein, we do hereby request and authorize (3 — C — , of 
 the county of , and state aforesaid, to collect and secure the said prop- 
 erty, wheresoever the same maybe in this state, whether it be goods, 
 chattels, debts or credits, and to make or cause to be made a true and per- 
 fect inventory thereof, and to exhibit the same with all convenient speed 
 
 to the county court of the said county of , together with a reasonable 
 
 account of his collection, acts and doings in the premises aforesaid. 
 
 Witness , Clerk of the County Court in and for said 
 
 [seal.] county of , and the seal of said court, this day of , 
 
 18—. , Olerk. 
 
 Form So. 14. 
 
 (§§ 234, 235, 137, 141, 237, 239.) 
 
 PETITION FOR LETTERS OF ADMINISTRATION. 
 
 To the Honorable, Judge of the County Court of County: 
 
 The petition of the undersigned G C , respectfully represents 
 
 that A B , late of , deceased, died at , in , on or about 
 
 the day of , A. D. 18 — , *leaving property and effects in this county, 
 
 but left no last will and testament as far as known to and believed by this 
 
 petitioner. That said deceased left him surviving D B , as his widow, 
 
 and E B and F B , his only children, and H B and 
 
 R B only children of C B , deceased, late of county 
 
 aforesaid, who was a son of said A B , which said children are the 
 
 only heirs of said A B , deceased, and the probable value of per- 
 
 19 
 
290 FORMS. [NO. XV. 
 
 sonal property left by the said A B , deceased, is $2,000, and the 
 
 probable value of real estate left by him is $10,000; and your petitioner 
 further says **that sixty-five days have elapsed since the death of said 
 
 A B , and that he is a creditor of said estate — therefore he 
 
 prays that letters of administration be granted to himself as the adminis- 
 trator of said estate. 
 
 State of Illinois, ) 
 County, j ss- 
 
 G G , being duly sworn, deposes and says, that the facts averred 
 
 in the above petition are true, according to the best of knowledge, in- 
 formation and belief. 
 
 G C . 
 
 Sworn to and subscribed before me , this day of , 18 — . 
 
 • , Clerk. 
 
 Note. — This form may be changed so as to set forth any other facts when they exist, 
 showing the jurisdiction of the court, and the right of the petitioner to have letters, as, 
 
 if the widow applies, add after the ** that she is the widow as aforesaid of said A 
 
 B , wherefore she prays, etc. If the deceased resided in the county where adminis- 
 tration is sought, the foregoing form is sufficient. If he was a non-resident of the state 
 and left lands thereafter the asterisk say, — leaving lands in this county. And if he left 
 only personalproperty, s"ay — leaving only personal property, of which a part— or the 
 whole, according to the fact — was and is in this county. So if he had no known place 
 of residence and no lands in this state, the last form will be sufficient. See § 234. 
 
 Form yo. IS. 
 
 (§§ 240, 234-340.) 
 
 RELINQUISHMENT Or BIGHT TO ADMINISTER. ' 
 
 State oe Illinois, ) 
 County. ) ' 
 
 To the Honorable, Judge of the County Court of said County: 
 
 I, C B , widow (or son or other next of kin or a creditor) of' 
 
 A B , late of said county, deceased, do hereby relinquish all right 
 
 which I may have to administer as such widow (or next of kin, etc.), 
 upon the estate of the said deceased. 
 
 "Witness my hand, this day of , A. D. 18 — . 
 
NO. XVI.] POEMS. 291 
 
 .Form Xo. 16. 
 (§§ 310, 834.) 
 
 CLERK'S ENTRY OP THE APPOINTMENT OF AN ADMINIS- 
 TRATOR. 
 
 In the Matter of the Appointment of an Administrator of the 
 Estate of A B , Deceased. 
 
 This day, to wit: , 18—, came G C , and filed his petition for 
 
 letters of administration of the estate of A B , deceased, together 
 
 with the relinquishment, in writing, of C B , widow, and P 
 
 B and E B , only children of said A B , deceased, of 
 
 their right to administer upon said estate, and it appearing to the satisfac- 
 tion of the court, that said A B died at , in county, Illi- 
 nois, on or about the day of , 18—, intestate, leaving personal 
 
 property in this county (see § 234) of the value of dollars, and also 
 
 leaving C B , as his widow, and P B and E B his 
 
 only children, and that they have relinquished their right of administra- 
 tion of said estate; and it further appearing to the satisfaction of the 
 court that said Q C is a creditor of said estate, and there appear- 
 ing to be no legal objection to his appointment as administrator: It is or- 
 dered by the court that the said Q C be appointed administrator 
 
 of the estate of said A B , deceased, and that he take the usual 
 
 oath provided by law, and give bond as such administrator, with good se- 
 curity, in the penal sum of dollars. And the said G C having 
 
 taken the oath aforesaid, and presented his bond in said sum, with C 
 
 P and A S as securities, it is ordered by the court that said 
 
 bond be approved, filed and recorded, and that letters of administration 
 on said estate be issued to him. 
 
 Appoint appraisers as in Form No. 6. 
 
 Note. — If the intestate resided in the county where administration is sought, the 
 foregoing form is sufficient. If he was a non-resident of the state, and left only lands, 
 the fact of his non-residence should appear, and it may be stated after the date of his 
 death, thus,— that he was a non-residetit of this state; and the fact of his leaving real 
 property in the county may he stated (see § 234) by inserting the word " real " after the 
 word " leaving." If he left personal property in this state its value should be stated, as 
 tbe amount of the administrator's bond will be regulated by that value. If he left only 
 land, the court should in some way be advised of the debts and value of the land in order 
 to fix the amount of the bond, which should be double the amount of the debts, if the 
 land is sufficient to pay them ; if the land is not sufficient to pay the debts, then the 
 bond should be double the value of the land. 
 
292 FOKMS. [NO. XVII,. XVIII. 
 
 Form Ifo. 17. 
 (8 341.) 
 
 ADMINISTRATOR'S OATH. 
 Sta™_ot Iuwoib, J ss In tu 0mnty Gourt . 
 
 I do solemnly swear (or affirm) that I will well and truly administer all 
 
 and singular the goods and chattels, rights, credits and effects of A 
 
 B , deceased, and pay all just claims and charges against his estate, so 
 
 far as his goods, chattels and effects shall extend, and the law charge me ; 
 and that I will do and perform all other acts required of me by law, to 
 the best of my knowledge and abilities. 
 
 G C- 
 
 Subscribed and sworn to before me this day of , 18 . 
 
 Clerk. 
 
 Form No. 18. 
 
 (§242.) 
 
 ADMINISTRATOR'S BOND 
 
 Proceed as in Form No.' 8, to the asterisk. 
 
 The Condition of the above Obligation is such, that if the said 
 
 G C , administrator of all and singular the goods and chattels, 
 
 rights and credits of A B , deceased, do make, or cause to be 
 
 made, a true and perfect inventory of all and singular the goods and chat- 
 tels, rights and credits of the said deceased which shall come to the hands, 
 possession or knowledge of him, the said G C , as such adminis- 
 trator or to the hands of any person or persons for him ; and the same so 
 made, do exhibit, or cause to be exhibited, in the county court for the 
 
 said county of , agreeably to law, and' such goods and chattels, rights 
 
 and credits, do well and truly administer, according to law, and all the 
 rest of said goods and chattels, rights and credits, which shall be found 
 remaining upon the accounts of the said administrator, the same being 
 first examined and allowed by the county court, shall deliver and pay 
 unto such person or persons respectively, as may be legally entitled 
 thereto, and further, do make a just and true account of all his actings 
 and doings therein, when thereunto required by the said court ; and, if 
 it shall appear that any last will and testament was made by the deceased, 
 and the same be proved in court, and letters testamentary cr of adminis- 
 
NO. XIX.] FORMS. 293 
 
 tration be obtained thereon, and the said Gt C do in such case, 
 
 on being required thereto, render and deliver up the letters of adminis- 
 tration granted to him as aforesaid, and shall in general do and perform 
 all other acts which may at any time be required of him by law, then this 
 obligation to be void, otherwise to remain in full force and virtue. 
 
 . [seal] 
 
 . [SBAli] 
 
 Attest: F C , Clerk. .[seal] 
 
 Form Xo. 19. 
 
 (§§ 335, 239.) 
 
 LETTERS OF ADMINISTRATION. 
 
 State of Ii/linois, 1 
 County. J 
 
 The People of the State of Illinois, to all to wlwrn, these Presents shall come, 
 Gbeetinq : 
 
 Know Ye, That whereas A B , of the county of and state 
 
 of Illinois, died intestate, as it is said, on or about the day of , 
 
 A. D. 18 — , having at the time of his decease, personal properly in this 
 state, which may be lost, destroyed or diminished in value, if speedy care 
 be not taken of the same ; to the end, therefore, that said property may be 
 collected and preserved for those who shall appear to have a legal right or 
 
 interest therein, we do hereby appoint G C , of the county of 
 
 and state of Illinois, administrator of all and singular the goods and chat- 
 tels, rights and credits, which were of the said A B at the time of 
 
 his decease ; with full power and authority to secure the said property and 
 debts, wheresoever the same may be found in this state, and in general to 
 do and perform all other acts which now are, or hereafter may be required 
 of him by law. 
 
 Witness, , Clerk of the County court of the said County 
 
 [seal] of , and the seal of the said court, this day of , 
 
 A. D. 18—. 
 
 Note.— The statute, Tit. Admin. § 31, provides that, the form of letters of administra- 
 tion shall he as near as may he as ahove given; and that in all cases where letters of 
 administration de bonis non, or to a public administrator are issued, they shall he in 
 conformity with the foregoing form, as nearly as may be, taking care to make the neces- 
 sary variations, additions or omissions to suit each particular case. 
 
294 poems. [no. 
 
 Form 2To. 20. 
 
 (8 347.) 
 
 OFFICIAL OATH OF PUBLIC ADMINISTRATOR. 
 
 State of Illinois, ) 
 County. J 
 
 I do solemnly swear (or affirm) that I will support the constitution of 
 the United States and the constitution of the state of Illinois, and that I 
 will faithfully discharge the duties of the office of public administrator 
 of county, according to the best of my ability. 
 
 Subscribed and sworn to before me, this day of , 18 — . 
 
 , Clerk. 
 
 Note. — The statute does not expresBly provide that a public administrator shall take 
 an oath, when appointed to administer upon an estate, still it would he proper to re- 
 quire it; in which case Form No. 17 should he adopted. 
 
 Form ITo. 91. 
 
 (§§ 247, 248, 234-237. Stat, §46.) 
 
 PETITION BY A CREDITOR FOR LETTERS OF ADMINISTRA- 
 TION TO BE GRANTED TO THE PUBLIC ADMINISTRATOR. 
 
 Proceed as in Form No. 14, to the asterisk, then add : 
 
 — seized (or possessed of, or having right to, or interest in) real estate 
 
 lying within the county of (where the application for letters is made), 
 
 in the state of Illinois, to-wit: (here describe it, § 248). That he left no 
 last will or codicil so far as known to, or believed by the petitioner. That 
 
 said A B left him surviving C B , as his widow, and F 
 
 B and E B , his only children and heirs, all of whom reside in 
 
 the city of , in the state of . That one C P is, as the 
 
 petitioner is informed and believes, the only creditor of said A B , 
 
 except the petitioner, within this state, but has relinquished his right to 
 
 administer upon the estate of said A- — B , which relinquishment is 
 
 in writing and filed herewith. That the petitioner is a creditor of said 
 
 A B in the sum of about dollars, on a verbal contract for 
 
 goods sold to him within the last five years (or on his promissory note — 
 describing it, § 247, or any other fact showing that the petitioner is " in- 
 teiested " in the estate). That the real estate of said deceased within this 
 
NO. XXI.] FOEMS. 295 
 
 state, so far as known to or believed by the petitioner, is of the value of 
 
 dollars. And the petitioner not being willing to administer upon 
 
 the estate of A B , prays that the court will grant letters of ad- 
 ministration upon said estate to the public administrator of said county 
 
 of . 
 
 Subscribed and sworn, etc. 
 
 Where the intestate is a non-resident, or without a widow, next of kin or creditors in 
 his state, but leave s property within this state, administration must he granted to the 
 public administrator of the proper county. See § 18, Tit., Administration. The aim of 
 this clause was to provide for those cases where personal estate was left in Illinois, and 
 there was no person in the state having an interest, as widow, next of kin or creditors, 
 in preserving it, — a very different case from the one presented by section 46, which ap- 
 plies only in cases where there are creditors here, who, under other provisions of the 
 statute, have a right to be appointed as administrator. 
 
 FORM OF PETITION BY THE PUBLIC ADMINISTRATOR FOR 
 LETTERS OF ADMINISTRATION ON THE ESTATE OF 
 ONE WHO IS A NON-RESIDENT, OR WITHOUT A WIDOW, 
 NEXT OF KIN OR CREDITORS IN THIS STATE. 
 
 Proceed as in Form No. 14, to the asterisk, then add : 
 
 leaving real estate (if any, in which case describe it, so as to show the 
 
 jurisdiction of the court, which will be in the county where the intestate 
 
 resided, if in this state; and if not, where the major part of his personal 
 
 property is situated), and also, personal property, the major part of which 
 
 was, at the time of his death, and now is, in the county of . That he 
 
 left no last will or codicil so far as known to or believed by the petitioner ; 
 
 that said A B left no widow, next of kin (which includes only such 
 
 as are entitled to inherit from the deceased) or creditors in this state. That 
 the real estate of said deceased, so far as known to the petitioner, is of the 
 
 value of about dollars, and his personal estate within this state of the 
 
 value of about dollars. And that the petitioner is public administra- 
 tor of said county of ; wherefore he prays that letters of administra- 
 tion may be granted to him as public administrator of said county, upon 
 
 the said estate of A B . 
 
 Subscribed and sworn, etc. 
 
296 forms. [sro. xxil xxiil 
 
 Form Ifo. 32. 
 (§ 351.) 
 
 NOTICE BY PUBLIC ADMINISTRATOR, WHERE BALANCE OF 
 ESTATE REMAINS FOR TWO YEARS. 
 
 Public Administhatok's Notice. Estate of A B , Deceased. 
 
 Public notice is hereby given, that there is now remaining in my hands 
 
 dollars, belonging to the estate of A B , who died at in 
 
 the county of , and state of Illinois, on the day of , 18 — , 
 
 which amount so remaining in my hands is the balance, after payment of 
 all just debts and charges against said estate which came to the knowledge 
 of the undersigned within two years after the administration of said es- 
 tate was committed to me. And all persons having claims or demands 
 against said estate are hereby notified to exhibit the same, together with 
 
 the evidence in support thereof, before the county court of county, in 
 
 the state of Illinois, within six months after the date of this notice, or the 
 same will be forefer barred. 
 
 Dated at , this day of , 18 — . 
 
 8w. O M , Pub. Aim. 
 
 Form No. S3. 
 
 (§§ 253, 255, 256, 257. General Form.) 
 
 PETITION EOR REVOCATION OP LETTERS TESTAMENTARY 
 OR OP ADMINISTRATION. 
 
 To the Honorable Judge of the County Court of County: 
 
 The petition of the undersigned respectfully represents that he is a son 
 
 (or a creditor), of A B , deceased; that on the day of , 
 
 18—, letters of administration were granted by said court to G C , 
 
 upon the estate of said A B , deceased ; *that said letters were so 
 
 granted to said G C — - upon the pretense that he, the said G C 
 
 was a creditor cf said estate (or other false and fraudulent pretense, ac- 
 cording to the fact), which pretense the petitioner avers was false and 
 
 fraudulent. Wherefore the petitioner prays that said G C may be 
 
 summoned to appear before this court to show cause, if any he has, why 
 his letters of administration aforesaid shall not be revoked, and that upon 
 
 the hearing thereof said letters may be revoked. 
 
 R P . 
 
 Subscribed and sworn, etc. 
 
NO. XXIV, XXV.] FORMS. 297 
 
 Form No. 84. 
 
 (I 255,) 
 
 PETITION FOR REVOCATION OF LETTERS "WIIERE THE EXEC- 
 UTOR OR ADMINISTRATOR BECOMES INSANE, OF UN- 
 SOUND MIND, AN HABITUAL DRUNKARD, CONVICTED 
 OF INFAMOUS CRIME, WASTES OR MISMANAGES THE 
 ESTATE OR CONDUCTS HIMSELF SO AS TO ENDANGER 
 HIS CO-EXECUTOR OR CO-ADMINISTRATOR OR SECURI- 
 TIES. 
 
 Proceed as in Form No. 23 to the asterisk, except the fact of being an 
 heir, legatee or creditor, then add : 
 
 (or, letters testamentary were granted by said court to G C upon 
 
 the will of A B— — , deceased) ; that since that time the said G — — 
 
 C has become and now is insane (or of unsound mind, or an habitual 
 
 drunkard, or has become convicted of an infamous crime, to-wit : bur- 
 glary, or other cause, naming it, and stating the facts from which danger 
 to securities, etc. may be predicated). Wherefore, the petitioner prays 
 
 that the said G C may be summoned to appear before this court 
 
 to show cause why said letters should not be revoked. 
 
 ■P- 
 
 Subscribed and sworn, etc. 
 
 Form No. SB. 
 
 (§ 258a.) 
 
 AFFIDAVIT BY A PERSON INTERESTED, THAT AN EXECU- 
 TOR OR ADMINISTRATOR, HAS REMOVED OR IS ABOUT 
 TO REMOVE WITHOUT THE LIMITS OF THE STATE. 
 
 State o^Illinois, J gs> Jft m C(mnty 0mH _ 
 
 E F , of said county, being duly sworn, on his oath says, that 
 
 he is interested in the estate of A B , deceased, being a creditor 
 
 thereof (or distributee or legatee, etc.), and that G C , executor of 
 
 the last will and testament of said A B (or administrator of the 
 
 estate of, etc.), has removed (or is about to remove) without the limits of 
 
 this state. 
 
 E F . 
 
 Subscribed, etc. 
 
298 FORMS. [NO. XXVj, XXVI. 
 
 Form No. HB 1-2. 
 
 (S 2580.) 
 
 NOTICE TO EXECUTOR OR ADMINISTRATOR WHO HAS RE- 
 MOVED OUT OF THE STATE, TO APPEAR AND MAKE SET- 
 TLEMENT OP HIS ACCOUNTS. 
 
 Estate of A B , Deceased. 
 
 In the County Court of County. 
 
 To Q C , executor of the last will of A B , deemed (or ad- 
 ministrator of the estate, etc.) : 
 Satisfactory affidavit having been filed, that you have removed without 
 the state of Illinois, you are hereby notified to appear before the county 
 
 court of county, in said state,, within thirty days after the date of this 
 
 notice, and make a settlement of your accounts as required by law ; and 
 that in default thereof you will be removed from your office as executor 
 (or administrator). 
 
 Dated at , this day of , 18 — . 
 
 4w. E P , Clerk. 
 
 Form No. 36. 
 
 (I 850.) 
 
 PETITIOK BV A PERSON ENTITLED TO DISTRIBUTION OR 
 OTHERWISE INTERESTED IN THE ESTATE, TO REQUIRE 
 THE EXECUTOR OR ADMINISTRATOR TO GIVE OTHER 
 AND SUFFICIENT SECURITY, WHERE THE SECURITY IS 
 INSUFFICIENT. 
 
 To the Honorable Judge of the County Court of County: 
 
 The petition of the undersigned respectfully represents that he is a son 
 
 (or legatee, according to the fact) of A B , deceased ; that on the 
 
 day of , 18 — , G C was appointed by said court executor 
 
 of the last will, etc. (or administrator of the estate of, etc.),* and that 
 
 H C , the surety on the executor's (or administrator's) bond of 
 
 said Q C has become insufficient (or is insufficient), so that the in- 
 terests of persons entitled to distribution and otherwise interested in the 
 
 estate of said are insecure ; wherefore the petitioner prays that said 
 
 executor (or administrator) maybe summoned to appear before this court, 
 
NO. XXVII, XXVIII.] FORMS. 299 
 
 and be required to give other and sufficient security as such executor (or 
 administrator). 
 
 D B . 
 
 Subscribed etc. 
 
 Form JJTo. 37. 
 
 (§280.) 
 
 PETITION BY SECUBITY OF EXECUTOR OR ADMINISTRATOR 
 TO COMPEL HIM TO GIVE COUNTER SECURITY OR NEW 
 BOND. 
 
 To the Honorable Judge of the County Court of County : 
 
 The petition of the undersigned respectfully represents, that, on the 
 
 day of , 18 — , G C was appointed by this court executor of the 
 
 last ■will of A B , deceased (or administrator of the estate of A 
 
 B , deceased), and that the petitioner became surety upon the bond of 
 
 said G C , as such executor (or administrator), *and that he con- 
 ceives himself in danger of suffering by the mismanagement of said estate 
 
 by said G C , and for cause of such apprehension says (here set 
 
 forth the cause or causes out of which the danger arises). Wherefore the 
 
 petitioner prays that said G C may be summoned to answer this 
 
 petition, and to show cause why he should not give good counter security 
 to save the petitioner harmless, or a new bond. 
 
 Subscribed and sworn, etc. 
 
 Form No. 38. 
 
 (i 3610 
 
 FORM OP BOND WHEN ADDITIONAL SECURITY OR NEW 
 BOND IS REQUIRED BY THE COURT, UPON PETITION OP 
 A PERSON INTERESTED, OR A SURETY. 
 
 The bond is the same as in No. 9, and the condition as follows : 
 
 The condition of the above obligation is such, that whereas, the above 
 
 bounden G C , executor of the last will and testament of A 
 
 B , deceased (or administrator of the goods and chattels, rights and 
 
 credits of A B , deceased), has heretofore executed a bond, payable 
 
 to the people of the state of Illinois, and for the discharge of his duties as 
 
300 FORMS. [NO. XXIX, XXX 
 
 executor (or administrator), as aforesaid, which said bond bears date on 
 
 the day of , A. D. 18 — ; and whereas, by an order of the county 
 
 court, made on the day of , A. D. 18 — , other bond and security 
 
 has been required of the said executor (or administrator): Now, therefore, 
 if the said executor (or administrator) shall well and truly have kept und 
 performed, and shall well and truly keep and perform the conditions of 
 the bond first given, as aforesaid, in all respects according to law, and shall 
 in all respects have performed, and shall continue to perform the duties 
 of his office, as aforesaid, then this obligation to be void : otherwise, to re- 
 main in full force and virtue. 
 
 Form No. 89. 
 
 (§263.) 
 
 PETITION BY SURETY OP AN EXECUTOR OR ADMINISTRA- 
 TOR TO BE RELEASED PROM PURTHER LIABILITY ON 
 THE BOND. 
 
 Proceed as in Form No. 27 to the asterisk, then add : 
 
 And the petitioner further represents that he desires to be released from 
 further liability upon said bond. Wherefore he prays that the said court 
 will direct what notice shall be given thereof to said executor (or admin- 
 istrator) and compel him, the said executor (or administrator), within a 
 reasonable time to settle and adjust his accounts, and pay over whatever 
 balance shall be found in his hands, and file a new bond as required by 
 law in such cases. 
 
 Form No. 30. 
 
 (§ 368.) 
 
 PETITION BY EXECUTOR OR ADMINISTRATOR, FOR LEAVE 
 
 TO RESIGN. 
 
 To the Honorable Judge of the County Court of County. 
 
 The petition of the undersigned respectfully represents, that on the 
 
 day of ,18 — , he was appointed by said court executor of the last will 
 
 of A B , deceased (or administrator), of the estate of A B 
 
NO. XXXI.] FORMS. 301 
 
 deceased, and that he is desirous of resigning his trust as such executor 
 (or administrator). "Wherefore the petitioner prays that the said court will 
 direct what notice thereof shall be given to the legatees, devisees and dis- 
 tributees (or in case of administration, to the distributee)), and that he may 
 be allowed to resign his trust aforesaid. 
 
 G C , Executor, etc. 
 
 Note.— The notice in such cases may Tie enclosed in a letter addressed and mailed to 
 each party a reasonable time before the resignation should be allowed. But if their res- 
 idence or names be unknown, it would be proper to require that the notice be published 
 in a newspaper, 
 
 Form No. 31. 
 
 (§§ 353, 365, 808.) 
 
 CLERK'S ENTRY OF AN ORDER OP REVOCATION OP LET- 
 TERS TESTAMENTARY OR OP ADMINISTRATION. 
 
 In the Matter of the Petition op R P , for Revocation 
 
 of Letters of Administration Granted to G C , upon 
 
 the Estate of A B , Deceased. 
 
 And now, to wit: , 18 — , comes R P , the petitioner, 
 
 and the said G C , administrator of the estate of A B . 
 
 deceased, and this cause coming on to be heard upon the petition, and the 
 testimony of witnesses sworn and examined in open court, and it appear- 
 ing to the satisfaction of the court that the said petitioner is a creditor of 
 said estate (or son of said A B ), and that the letters of adminis- 
 tration of the estate of A B , deceased, heretofore granted by this 
 
 court to said G C , were granted to him upon the false and fraud- 
 ulent representation that he was a creditor of said estate (or other false 
 and fraudulent pretense) : It is ordered by the court that the said letters 
 
 of administration upon the estate of said A B , heretofore granted 
 
 by this court to said G C , be revoked, and that said G C 
 
 pay the costs of this suit. 
 
302 FORMS. [NO. XXXII, XXXIII. 
 
 form Ho. 32. 
 
 (§2550 
 
 CLERK'S ENTRY OP ORDER OF REVOCATION OF LETTERS, 
 WHERE THE EXECUTOR OR ADMINISTRATOR HAS BE- 
 COME INSANE, etc. 
 
 In the Matter of the Petition' of R P ■, fob Revocation 
 
 of Letters Testamentary Granted to G C , as Execu- 
 tor, of the Last Will of A B , Deceased (or Letters of 
 
 Administration upon the Estate, etc). 
 
 And now, to -wit: , 18 , comes R P , the petitioner, and 
 
 it appearing to the court that the said G C has been duly served 
 
 with summons in this cause according to law, and the said G C 
 
 having failed to appear and show cause why the letters testamentary here- 
 tofore granted to him by this court, as executor of the last will of A 
 
 B , deceased, should not be revoked ; and this cause now coming on 
 
 to be heard upon the petition and the testimony of witnesses sworn and 
 examined in open court ; and it appearing to the satisfaction of the court 
 
 that the said G C , since the said letters testamentary were granted 
 
 to him, has become and now is insane : It is ordered by the court, that 
 the said letters be revoked. 
 
 This form can be easily varied to suit any case arising under § 355. 
 
 Form Xo. 33. 
 
 (8 859-) 
 
 CLERK'S ENTRY OF ORDER FOR THE EXECUTOR OR AD- 
 MINISTRATOR TO GIVE A NEW BOND. 
 
 In the Matter of the Petition of R P , for an Order Requir 
 
 ing Q C , Administrator of the Estate of A B 
 
 Deceased to Give Other and Sufficient Security. 
 
 And now, to wit: , 18 — , comes the said petitioner, R P , and 
 
 said G C , Administrator of the estate of A B , deceased, 
 
 and this cause coming on to be heard upon the petition and the testimony 
 of witnesses sworn and examined in open court, as well on the part of 
 the petitioner as of the said administrator, and it appearing to the sati*. 
 
NO. XXXIV.] FORMS. 803 
 
 faction of the court that the petitioner is a creditor of the estate of said 
 
 A B— — , deceased (or in some other way interested therein), and that 
 
 the security taken on the bond of said administrator is insufficient : It is 
 
 ordered by the court that said G C , as administrator as aforesaid, 
 
 give other bond in the sum of dollars, with sufficient security, 
 
 within days from the date of this order. And thereupon the said 
 
 Gt , made and filed his bond as aforesaid in the sum of dol- 
 lars, with K S and 8 C , as sureties, which is approved by 
 
 the court and ordered to be filed and recorded. 
 
 This form may be easily changed to apply to cases under § 260. 
 
 1'orm No. 34. 
 
 (§372.) 
 
 INVENTORY. 
 
 State of Illinois, ) 
 County. ) ' 
 
 In the Matteb of the Estate of A B , Deceased. 
 
 The following is a full and perfect inventory of all the real and personal 
 estate of the said deceased, so far as the same has .come to the possession 
 or knowledge of the undersigned administrator of said estate (or executor 
 of the last will of A B , deceased) : 
 
 Real Estate. 
 
 1. The southeast quarter of section 34, in township 15 north, range 5 east 
 
 of the fourth principal meridian, lying in county, Illinois, 160 
 
 acres. Title, fee simple, believed to be perfect, but subject- to a mortgage 
 
 of the deceased in favor of J S , dated , 18 — , for dollars 
 
 and interest at ten per cent. Occupied by the family of the deceased as a 
 homestead. (§ 272.) 
 
 2. The west half of the southwest quarter of section 35, in township 15 
 north, range 5 east of the fourth principal meridian, lying in said county, 
 and state, 80 acres. Occupied by the family of the deceased, and held by 
 
 said deceased under a lease from J B to him, for and during the 
 
 life of O C , who is now living, Date of lease, . Rent, $250 
 
 per year, payable at the end of the year. (§ 284.) 
 
 3. The northeast quarter of the northeast quarter of section 36, in town- 
 ship 15 north, range 5 east of the fourth principal meridian, lying in 
 said county and state, 40 acres. Title, fee simple, and supposed to be per- 
 
804 FORMa [no. xrav. 
 
 feet. This tract was leased by the deceased to K C , on the 
 
 day of , 18 — , for the term of five years from that date. Bent reserved 
 
 $30 per quarter, payable at the end of each quarter after the date. (§ 292.) 
 
 Chattel Property. 
 
 Lease of the east half of southwest quarter of section 35, township 15 
 
 north, range 5 east of the fourth principal meridian, lying in 
 
 county, Illinois, from J W- — , dated , 18 — , for the term of ninety- 
 nine years from date. Rent, $225 per year payable annually, and also 
 taxes and repairs. Occupied by the family of deceased,, (§§ 284, 292.) 
 
 (Here specify any other personal property, giving the number of arti- 
 cles of each kind in the left hand column ; but the statute does not require 
 any estimate of value. And it is advisable, for convenience of reference, 
 that all articles of similar character be inventoried together, as horses, 
 oxen, cows, hogs, agricultural implements and tools, grain, etc. This will 
 insure greater accuracy, and aid the appraisers in. their duties. They 
 would also do well to follow the order of the inventory in this respect. 
 The sale bill should follow the same order. This arrangement of the 
 items in these bills will enable persons interested to see if all the articles 
 have been inventoried, appraised and sold, as well as aid in ferreting out 
 negligence or dishonesty in the personal representative.) 
 
 Cash on hand at decease $142 25 
 
 Notes — Deemed Good. 
 
 Prom M S , dated ,18—, amount $200, interest 10 
 
 per cent., payable annually, due 2 years after date. Interest 
 
 for one year paid. Amount due 245 50 
 
 Notes — Deemed Doubtful. 
 
 From C W , dated , 18— ; amount, $180, interest, 6 
 
 per cent. Due one year after date. Amount due 206 30 
 
 (The statute does not require that the amount of the interest due shall 
 be stated in the inventory ; and it is a sound practice, approved by many 
 judges, not to require it, but to have the inventory show the date and 
 amount of the note, with the rate of interest, and the date and amount of 
 payments endorsed thereon. From these facts the amount chargeable to 
 the personal representative can be easily computed whenever necessary.) 
 
 Accounts — Deemed Good. 
 
 F C 105 00 
 
 R S 75 00 
 
 Accounts — Deemed Doubtful. 
 
 A S 153 00 
 
 C W 50 00 
 
SO. XXXV, XXXVI.] FOBMS. 305 
 
 I do hereby certify that the above is a correct inventory of the real and 
 
 personal estate of A B , deceased. 
 
 Given under my hand, this day of , 18—. 
 
 Form Xo. 35. 
 
 (.% 313.) 
 
 WARRANT TO APPRAISERS. 
 
 State of Illinois, ) „„ r „ . „ . 
 County. \ ss - In Gount y 0ourt - 
 
 The People of the State of Illinois, to P , R S and B 
 
 F , of the County of , and State of Illinois, Greeting : 
 
 This is to authorize you, jointly, to appraise the goods, chattels and per- 
 sonal estate of A B , late of the county of , and state of Illinois, 
 
 deceased, so far as the same shall come to your sight and knowledge, each 
 of you having first taken the oath hereto annexed ; a certificate whereof you 
 are to return, annexed to an appraisement bill of said goods, chattels and 
 personal estate, by you appraised in dollars and cents ; and in the said bill 
 of appraisement you are to set down in a column or columns, opposite to 
 each article appraised, the value thereof. 
 
 "Witness, C C , Clerk of the County Court of 
 
 [seal.] county, and the seal of said court, this day of , 
 
 18—. 
 
 C C Clerk. 
 
 State of Illinois, 
 County. 
 
 Form JVo. 36. 
 
 (§ 313.) 
 
 OATH OP APPRAISERS. 
 
 ■SS. 
 
 We, and each of us, do solemnly swear, that we will well and truly, 
 without partiality or prejudice, value and appraise the goods, chattels and 
 
 personal estate of , deceased, so far as the same shall come to our 
 
 sight and knowledge ; and that we will in all respects perform our duties 
 as appraisers, to the best of our skill and judgment. 
 
 R H . 
 
 20 
 
306 
 
 FORMS. 
 
 [no. xxxvil 
 
 Subscribed and sworn to, this day of , A. D. 18 — , before me. 
 
 , Justice of the Peace. 
 
 This may be sworn before any person authorized to administer an oath. Stat. Tit. 
 Admin. § 54. 
 
 Form JVo. 37. 
 
 (8§ 313, 315.) 
 
 APPRAISEMENT BILL. 
 
 State of Illinois, i 
 County. \ 
 
 In County Court. 
 
 An appraisement bill of the goods, chattels and personal estate of A 
 
 B- , deceased, made by virtue of the annexed warrant. (Form No. 35.) 
 
 Aetioi.es. 
 
 Value. 
 
 
 $.... 
 
 (See comments on Form No. 34.) 
 
 
 
 
 
 
 
 The undersigned, appointed by County Court of said county, to appraise 
 
 the goods, chattels and personal estate of A B , late of said county,* 
 
 deceased, do hereby certify that the foregoing is a true and correct ap- 
 praisement bill of said goods, chattels and personal estate, so far as the 
 same have come to our sight and knowledge ; that we have appraised 
 each article at its true value according to the best of our skill and judg- 
 ment, having first taken the oath required by law. 
 
 Given under our hands and seals this day of , A. D. 18 — . 
 
 SEAL 
 SEAL 
 SEAL 
 
 "We, the appraisers above named, do certify that we have attended and 
 served day each, in appraising the estate of said deceased. 
 
 C P • ) , 
 
 B H , >• Appraisers. 
 
NO. XXXVIII.] 
 
 FOKMS. 
 
 307 
 
 Form JVo 38. 
 
 ({§ 315, 317, 818, 319.) 
 
 WIDOWS AWAED, OE APPEAISEES' ESTIMATE OF THE 
 VALUE OP PEOPEETY ALLOWED TO THE WIDOW. 
 
 The undersigned, appraisers appointed by the County Court of 
 
 county to appraise the goods, chattels and personal estate of A B , 
 
 deceased, do hereby make and oertify to said court the following estimate 
 of the value of each article of specific properly allowed by law to the 
 widow, for herself and family, to-wit : 
 
 Items. 
 
 Dolls. 
 
 Cts 
 
 The family pictures and the wearing apparel, jewels and or 
 
 naments of the widow and minoi children 
 
 School books and family library 
 
 One sewing machine 
 
 Necessary beds, bedsteads and bedding for widow and family 
 
 1 The stoves and pipe used in the family, with the necessary 
 
 cooking utensils 
 
 Household and kitchen furniture 
 
 milch cow and cal (being one for every four mem- 
 bers of the family) 
 
 sheep and fleeces (being two for each member of the 
 
 f am ily) 
 
 One horse, saddle and bridle 
 
 Provision for widow and family for one year 
 
 Pood for the stock above specified for six months 
 
 Fuel for the widow and family for three months 
 
 2 Other property 
 
 100 
 
 00 
 
 100 
 
 00 
 
 100 
 
 00 
 
 Total , 
 
 Given under our hands. 
 
 This form Is generally attached to the appraisement hill 
 
 i Where there are no stoves, etc., allow fifty dollars. 
 
 « Suited to the condition in life of the widow, to be by her selected. 
 
308 
 
 FORMS. 
 
 [NO. XXXIX. 
 
 Form No. 39. 
 
 (§ 328, 325.) 
 
 "WIDOW'S RELINQUISHMENT AND SELECTION. 
 
 State of Illinois, ) 
 County of . ) ss ' 
 
 I, F B , widow of A B , deceased, do hereby relinquish 
 
 all my claim to the following articles mentioned in the "Appraisers' esti- 
 mate of specific property," allowed me for myself and family, to wit: 
 
 Items. 
 
 Dolls. Cts 
 
 The family pictures and the wearing apparel, jewels and or 
 
 naments of the widow and minor children 
 
 School books and family library 
 
 One sewing machine 
 
 Necessary beds, bedsteads and bedding for widow and 
 
 family ■ 
 
 The stove and pipe used in the family, with the necessary 
 
 cooking utensils 
 
 Household and kitchen furniture 
 
 milch cow and cal (being one for every four mem 
 
 bers of the family) 
 
 sheep and fleeces (being two for each member of the 
 
 family 
 
 One horse, saddle and bridle 
 
 Provisions for widow and family for one year 
 
 Food for the stock above specified for six months 
 
 Fuel for the widow and family for three months 
 
 Other property 
 
 $100 
 
 00 
 
 100 
 
 00 
 
 100 
 
 00 
 
 Total. 
 
 The aggregate value of which, as estimated, is $ ; and in lieu of the 
 
 same I desire to retain the following articles named in the " Appraisement 
 Bill of Personal Property " of said A B , deceased, viz. : 
 
 Articles. 
 
 Value. 
 
 
 Dolls. 
 
 Cts. 
 
 
 
 
 
 
 
 The total value of which, as appraised, is $- 
 ance ($ ), I prefer to have in money. 
 
 • dollars, and the bal- 
 
NO. XL.] FORMS. 309 
 
 "Witness my hand, this day of , A. D. 18—. 
 
 F B . 
 
 Notb.— The Btatute Tit. Admin. § 74, last clause, provides that, the widow may, if she 
 so elects, take and receive in lieu of her award, the same personal property, or money 
 in place thereof, as is or may he exempt from execution or attachment against the head 
 of a family residing with the same. But, as the exemption is now so much smaller than 
 the amount allowed hy appraisers, and has in no respect any advantages over the award, 
 it will be unnecessary to notice it any further. 
 
 Form, No. 40. 
 
 (§§ 327, 3370.) 
 
 KEPOET OF PERSONAL REPRESENTATIVE THAT THE PER- 
 SONAL PROPERTY AND ASSETS DO NOT EXCEED THE 
 AMOUNT OP THE WIDOW'S AWARD AND NECESSARY 
 
 EXPENSES. 
 
 To the Honorable Judge of the County Court of County: 
 
 The undersigned, administrator of the estate of A B , deceased, 
 
 to whom letters of administration were heretofore granted by this court, 
 respectfully reports unto your Honor, that, he has made and filed in this 
 court an inventory and appraisement bill of the personal property and 
 
 assets of said estate, and that the same amount in value to the sum of 
 
 dollars ; that the value of the property awarded to F ■ B , as widow 
 
 of said A B , is dollars, and the necessary expenses incurred 
 
 in administrating upon said estate have been dollars. And because 
 
 the said property and assets do not exceed the amount of said widow's 
 award, after deducting the necessary expenses incurred, the undersigned 
 prays that the court will make an order directing him to deliver all of 
 said property and assets to said widow, which shall remain after the pay- 
 ment of the necessary expenses incurred in the administration of said 
 estate, and discharge him from further duty in the premises. 
 
 Admr. 
 
310 POEMS. [NO. XLI, XLII. 
 
 Form JTo. 41, 
 
 (§§327, 327a.) 
 
 CLERK'S ENTRY OF ORDER FOR THE ADMINISTRATOR TO 
 DELIVER PERSONAL PROPERTY AND ASSETS OF THE 
 ESTATE TO THE WIDOW. 
 
 In the Matter or the Application of G C , Administrator 
 
 of the Estate of A B , Deceased, for an Order Di- 
 recting him to Deliver to the Widow of the Deceased the 
 Personal Property and Assets of said Estate. 
 
 And now, to-wit : , 18 — , comes G C , administrator of the 
 
 estate of A B , deceased, and presents his report showing that the 
 
 personal property and assets of said estate do not exceed the amount of 
 the award made to F B , widow of said A B , after deduct- 
 ing the necessary expenses incurred in administering upon said estate, and 
 praying the court to make an order directing him to deliver all of said 
 property and assets to said widow, which shall remain after the pay- 
 ment of the necessary expenses incurred in the administration of said 
 estate, and to discharge him from further duty in the premises; and 
 the court having examined said report, and being satisfied that the same 
 is in all respects correct and true : It is ordered by the court that said ad- 
 ministrator first pay out of said property and assets the costs and ex- 
 penses of administration, and deliver to said widow the remainder of 
 said property and assets, and take her receipt therefor, and report his 
 proceedings in this behalf to this court; and it is further ordered that he 
 be thereupon discharged from further duty as such administrator. 
 
 Form No. 42. 
 
 (§§ 328, 335.) 
 
 PETITION TO SELL PERSONAL PROPERTY. 
 
 To the Honorable Judge of the County Court of County: 
 
 The undersigned, G C , heretofore appointed by this court ad- 
 ministrator of the estate of A B , deceased, respectfully represents 
 
 that he has returned to this court the inventory and appraisement of the 
 personal estate of said deceased ; that he believes that the ready money 
 of said estate is not sufficient to pay the debts against said estate ; that 
 
NO. SLIII.J FORMS. 311 
 
 the personal estate of all kinds amounts to dollars, and the debts 
 
 against said estate, the widow's award and the costs of administration, 
 
 will amount, as he is advised and believes, to dollars, and that a sale 
 
 of all the personal property, goods and chattels of said estate not awarded 
 to the widow, or selected and taken by her, is therefore necessary for the 
 proper administration of said estate (and if it is desirable that the sale be 
 private, add, and that it will be for the best interest of the estate that they 
 be sold at private sale). 
 
 Tour petitioner therefore prays for an order to sell all of the personal 
 property, goods and chattels contained in the inventory and appraise- 
 ment bill of said estate, except what may be lawfully reserved to the 
 widow, at public (or private) sale, and on such terms as the court shall 
 direct. 
 
 G C , Administrator. 
 
 Note.— This form may be varied to suit the requirements of each particular case. 
 
 Form No. 43. 
 
 (§§338,336.) 
 
 CLERK'S ENTRY OF AN ORDER DIRECTING THE PERSONAL 
 REPRESENTATIVE TO SELL THE PERSONAL PROPERTY. 
 
 In the Matter of the Application of G — C , Administrator 
 
 of the Estate of A B , Deceased, fob an Obdeb to Sell 
 
 the Personal Property, etc., of said Estate. 
 
 This day comes G C , administrator of the estate of A B , 
 
 deceased, and presents his petition for an order directing him to sell the 
 personal property, goods and chattels of the decedent, and shows to the 
 satisfaction of the court here that it will be necessary to sell all the said 
 property, goods and chattels of said estate, not awarded to the widow, 
 or selected and taken by her (and if an executor applies, say, and not 
 specifically bequeathed to the legatees in the last will of the deceased, or 
 as the fact may be) : It is therefore ordered by the court that said adminis- 
 trator proceed to sell all of said personal property, goods and chattels not 
 awarded to said widow or selected and taken by her, or specifically be- 
 queathed as aforesaid, at public sale, as provided by law (or at private 
 sale, or a specified part, at private sale, as the facts shown may require). 
 
 This order may specify a particular time and place of sale, and may direct a more ex- 
 tended notice of the sale, but cannot dispense with any of the positive provisions of the 
 statute, as to the notice and the manner of making the sale. See §§ 338, 492. 
 
312 
 
 FOEMS. 
 
 [NO. XLIV, XLT. 
 
 Form Xo. 44. 
 
 (§§ 328 333.) 
 
 ADMINISTRATOR'S OR EXECUTOR'S SALE. 
 
 Notice is hereby given, that on , the day of next, between 
 
 the hours of 10 o'clock in the forenoon and 5 o'clock in the afternoon of 
 said day, at the late residence of A B , deceased, the personal prop- 
 erty of said decedent, consisting of and other articles will be sold at 
 
 public sale. 
 . Terms of Sale. — Purchases of less than five dollars to be paid in hand; 
 for that amount and over, on a credit of not less than six or over twelve 
 months, the purchaser giving note with approved security. 
 
 G C , Administrator 
 
 Bate. 
 
 The hours of sale are fixed by statute, § 95. 
 
 Form JVo. 45. 
 
 (I 339.) 
 
 SALE BILL. 
 
 State of Illinois, 
 
 In County Court. 
 
 The following is a true and correct bill of the sale of the personal prop- 
 erty, goods and chattels of the estate of A B , late of said county of 
 
 , deceased, made on the day of ,18 — , in pursuance of the or- 
 der of this court and of notice thereof, a copy of which notice is hereunto 
 attached (see Form No. 44), by the undersigned, administrator at . 
 
 Articles Sold. 
 
 Name op Puhchaseb. 
 
 Amoumt of Sale 
 
 
 
 
 
 
 
 
 
 
 Total amount of sales, 
 
 
 
 
NO. XL VI. J 
 
 FORMS. 
 
 313 
 
 "We do hereby certify that the above sale bill of the estate of A — B — , 
 
 deceased, is true and correct. 
 
 Given under our hands, this day of , 18 — . 
 
 S , Clerk. 
 
 B T , drier. 
 
 State of Illinois, ) 
 County. ) 
 
 G C , being duly sworn, on his oath says, that the foregoing is a 
 
 true and correct bill of sale of the personal property, goods and chattels 
 of A B , deceased. 
 
 Subscribed and sworn to before me this etc. 
 
 Form Ifo. 46. 
 
 SALE BILL — PRIVATE SALE. 
 
 The following is a true and correct bill of the sale of the personal es- 
 tate of A B , deceased, made at the date herein stated, at private 
 
 sale, in accordance with an order of this court, by G C , adminis- 
 trator of said estate. 
 
 Terms of sale : one-fourth in hand and the remainder on credit of six 
 months, with good security. 
 
 Wheh Sold. 
 
 Articles Sold. 
 
 Name of Pukchaseb. 
 
 Amt. op Sale. 
 
 
 
 
 » 
 
 
 
 
 
 
 Total amt. of Sales, 
 
 
 
 
 $ 
 
 State of Illinois, ) 
 County. ) " 
 
 Gr C , being duly sworn, on his oath says, that the foregoing is 
 
 a true and correct bill of the sale made by him at private sale of the 
 
314 FOEMS. [NO. XLVII. 
 
 said personal property, goods and chattels of A B . deceased; 
 
 that said sale was, in all respects, regular, according to the requirements 
 of law and the order of this court, pursuant to which it was made, and 
 was fairly conducted, and that each article was sold to the person, and 
 at the price stated, and that he believes that the prices obtained were 
 fair market prices at the date of sale. 
 
 Subscribed and sworn to before me, this day of , 18 — . 
 
 Form No. 47. 
 (§343.) 
 
 INVENTORY OF PARTNERSHIP PROPERTY AND 
 LIABILITIES. 
 
 State of Illinois, ) 
 County. J ' 
 
 In the Mattek of the Estate of A B , Deceased. 
 
 The following is a full, true and complete inventory, so far as known to 
 the undersigned, of all the real and personal estate which belonged to, 
 
 and the liabilities of, the partnership of A B & Co., composed 
 
 of the following named persons, to wit : A B and "W S , 
 
 and of which A B , deceased, was, at the time of his death, a 
 
 member, and which said estate belonged to, and said liabilities were owed 
 by said partnership, at the time of his death. 
 
 Seal Ustate. 
 
 Lot 21, block 11 of O.'s addition to the city of X., in the county 
 
 of , and state of Illinois. Title, fee simple, and supposed to 
 
 be perfect, subject to a mortgage of the said partners (describe 
 it). This lot was occupied by the firm as a lumber yard. 
 
 Personal Estate. 
 
 (Here give a list as in Form No. 34.) Cash on hand at the time 
 of decease $327 00 
 
 Notes. 
 (Describe as m Form No. 34.) 
 
NO. XLVIII.J FOEMS. 315 
 
 Accounts. 
 (Specify as in Form No. 34) 
 
 List of Liabilities so far as known. 
 
 To J Y , on note for $ , dated, etc., . Interest 
 
 at 10 per cent., — ■ — . No interest yet paid. Secured by mort- 
 gage on lot 31, block 11, etc $768 00 
 
 C P on note, describing it 309 00 
 
 F C account. Balance due him 45 00 
 
 Total of liabilities $1,117 00 
 
 State of Illinois, ) 
 County. ) 
 
 I do solemnly swear that the foregoing is a full, true and complete 
 inventory of all the real and personal estate belonging to the partner- 
 ship of A B & Co., at the time of the death of the said A — — 
 
 B , of which I have any knowledge; and also a full, true and 
 
 complete list of all the liabilities of said partnership at the time of the 
 
 death of said A B . 
 
 W S , 
 
 Partner of A B , Deceased. 
 
 Subscribed and sworn to before me this day of , A. D. 18 — . 
 
 Form No. 48. 
 
 (§§ 344, 345.) 
 i 
 
 WARRANT TO APPRAISERS OF PARTNERSHIP PROPERTY. 
 
 State ot Iledtoib, J sa . In 0ounty 0ourt 
 
 The People of the State of Illinois, to O. P., B. H. and B. F., of the County of 
 , and State of Illinois, Gheeting: 
 
 This is to authorize you, jointly, to appraise the goods, chattels and per- 
 sonal estate of the firm of A B & Co., composed of the following 
 
 named persons, to wit : A B and "W S , and of which 
 
 A B , late of the county of , and state of Illinois, deceased, was 
 
 a member, so far as the same shall come to your sight and knowledge, 
 
316 FOBMS. [NO. XLIX, L. 
 
 each of you having first taken the oath hereto annexed ; a certificate 
 whereof you are to return, annexed to an appraisement hill of said goods, 
 chattels and personal .estate, by you appraised, in dollars and cents, to 
 
 W S , the surviving member of said firm, on or by the day of 
 
 next. 
 
 And in said bill of appraisement you are to set down in a column or col- 
 umns, opposite each article appraised, the value thereof. 
 
 Witness, , Clerk of the County Court of county, and 
 
 [l. 8.] the seal of said court, this day of r, 18 — . 
 
 , Clerk. 
 
 Form Xo. 49. 
 
 (§§ 844, 345.) 
 
 OATH OF APPRAISERS. 
 
 State of Illinois, ) 
 County. J ' 
 
 We, and each of us, do solemnly swear that we will well and truly, without 
 partiality or prejudice, value and appraise the goods, chattels and personal 
 
 estate of the partnership of A B & Co., of which one A B , 
 
 deceased, was a member, so far as the same shall come to our sight and 
 knowledge ; and that we will in all respects perform our duties as ap- 
 praisers, to the best of our skill and judgment. 
 
 Subscribed and sworn to this day of — — , A. D. 18 — . 
 
 Form 2To. SO. 
 
 (§344.) 
 
 APPRAISERS' BILL— PARTNERSHIP PROPERTY. 
 State of Illinois, ) „„ T n * n 
 
 An appraisement bill of goods, chattels and personal estate of the part- 
 nership of A B & Co., of which A B , late of county, 
 
 deceased, was a member, so far as the same has come to our sight or 
 
NO. L.] FORMS. 317 
 
 knowledge, which appraisement has been made by us by virtue of the an- 
 nexed warrant from the county court of said county, we having been first 
 duly sworn, as required by law. 
 
 Articles. 
 
 Dolls. 
 
 Cts. 
 
 Given under our hands and seals this , day of — , A. D. 18 — . 
 
 C P- 
 
 R H , [■ Appraisers. 
 
 P ' 
 
 1 '[ 
 
 8" . 
 
 We, the appraisers above named, do certify that we have attended and 
 served day each, in appraising the estate of said firm of . 
 
 OATH BY SURVIVING- MEMBER OF FIRM. 
 
 I W S , do solemnly swear that the foregoing is the appraisement 
 
 bill of the goods, chattels and personal estate of the partnership of A 
 
 B & Co., of which A B , deceased, was, at the time of his death, 
 
 a member, returned to me by the above named appraisers, and that the 
 same contains the articles of goods, chattels and personal estate belonging 
 
 to said firm at the time of the decease of the said A B , except 
 
 such as are shown by the inventory accompanying this appraisement 
 bill, as sold since his decease' by the member of the firm him surviving. 
 
 "W S , Surviving Partner. 
 
 Sworn and subscribed before me this day of — — , 18—. 
 
318 FORMS. [NO. LI. 
 
 Worm No. 51, 
 
 (8 347.) 
 
 PETITION BY AN ADMINISTRATOR OF A DECEASED PART- 
 NER, FOR A CITATION OF A SURVIVING; PARTNER WHO 
 IS COMMITTING- WASTE, TO GIVE SECURITY FOR THE 
 FAITHFUL SETTLEMENT OF THE AFFAIRS OF THE PART- 
 NERSHIP, ETC. 
 
 To the Honorable Judge of tJie County Court of County: 
 
 The undersigned G C , to whom letters of administration upon 
 
 the estate of A B , late of the county of , deceased, were here- 
 tofore granted by this court, respectfully represents, that at the time of his 
 
 death, to-wit : pn the day of , 18—, the said A B , was a 
 
 member of the partnership of A B & Co., doing business in said 
 
 county (see § 345), and composed of the following members, to-wit: said 
 
 A B , deceased, and one W S , the said W S being 
 
 now the surviving partner of said A B : That at the time of the 
 
 death of said A B , the said partnership was the owner of certain 
 
 real estate (describing it) of about the value of dollars, and of per- 
 sonal property and notes and. accounts deemed good, amounting in value 
 to dollars ; and that said partnership was indebted to sundry individ- 
 uals in the sum of dollars ; that said W S has sold the per- 
 sonal property of said partnership of the value of dollars, and col- 
 lected money from the debtors of said partnership amounting to dol- 
 lars, in all dollars, yet the undersigned is informed and believes that 
 
 said W S has not paid any portion of said debts, though he has 
 
 often been requested by the partnership creditors so to do, nor has he ac- 
 counted with the undersigned in any way for any part of the said partner- 
 ship estate, or paid over to him any of said moneys, notwithstanding 
 
 there is a large sum thereof, to-wit : dollars, in his hands, in excess of 
 
 the sum necessary to pay said debts, and has been frequently requested so 
 
 to do. Wherefore the undersigned says that the said W S has 
 
 committed waste of said partnership property by converting the same to 
 
 his own use, and respectfully petitions your Honor to cause said W 
 
 S to be cited to make answer in the premises, and that he may be or- 
 dered and required to give security in such sum as the court may deter- 
 mine, for the faithful settlement of the affairs of the said partnership, and 
 for his accounting for and paying over to the undersigned as administra- 
 tor as aforesaid whatever shall be found to be due after paying the said 
 partnership debts and costs of settlement; and that a receiver of the 
 partnership property and effects be appointed by this court in case the said 
 W S shall refuse to give such security. 
 
 Add a jurat. 
 
NO. LII.] FORMS. 319 
 
 Form No. 52. 
 
 (§347.) 
 
 CLERK'S ENTRY OF AN ORDER REQUIRING A SURVIVING 
 PARTNER WHO HAS COMMITTED WASTE OF THE PART- 
 NERSHIP PROPERTY TO GIVE SECURITY, ETC. 
 
 In the Matter of the Application of G C , Administbatob 
 
 of the Estate of A B , Deceased, fob an Obdeb Re- 
 quiring W S , Surviving: Pabtneb, of said A B , 
 
 to Give Security foe the Faithful Settlement of the Affaibb 
 
 OF THE PaBTNEBSHIP, ETC. 
 
 And now comes G C , administrator of the estate of A B , 
 
 deceased, and W — - S , surviving partner of said A B , 
 
 in the late firm of A B & Co., and this cause coming on 
 
 to be heard upon the application of said G C and the testimony 
 
 of witnesses sworn and examined on behalf of both the said G C 
 
 and W S in open court; and it appearing to the satisfaction of 
 
 the court that the said W S has committed waste of the prop- 
 erty of said partnership, by converting the moneys of said partnership 
 in his hands, to his own use, and refusing to pay therewith the cred- 
 itors of said partnership, and to pay over to said administrator moneys 
 of said partnership rightfully applicable to that purpose : It is ordered 
 
 by the court that the said W S give bond with good security, 
 
 to the people of the state of Illinois, in the penal sum of dollars, 
 
 conditioned for the faithful settlement of the affairs of said partnership, 
 and that he will account for and pay over to the said administrator of 
 
 the estate of said A B , deceased, whatever shall be found to be 
 
 due, after paying partnership debts and costs of settlement of said 
 partnership affairs; and that he have till Wednesday next to comply 
 with this order; to which time this cause i3 continued. 
 
320 FOKM3. ■ [NO. LIIL 
 
 Form No. S3, 
 « 3*7.) 
 
 CLARK'S ENTRY OF AN ORDER APPOINTING A RECEIVER 
 OP PARTNERSHIP PROPERTY AND EFFECTS. 
 
 Title of the cause as in Form No. 52. 
 
 And now, to wit: , 18—, this cause again coming on to be heard, 
 
 and the said W S having failed and refused to give security in 
 
 compliance with order of this court made on the day of , 18 — : 
 
 It is ordered by the court that R F be and is. hereby appointed re- 
 ceiver of the partnership property and effects of the late firm of A 
 
 B & Co., with like powers, and subject to like duties in the premises, 
 
 of receivers in chancery ; that he proceed with due diligence to make and 
 return to this court an inventory of all the property, moneys and effects 
 of said firm in whosesoever hands they may be ; that he demand, sue for, 
 collect and receive of all persons having the same, all property, moneys 
 and effects of every kind belonging to said partnership ; that he account 
 for all such property, money and effects received by him or coming into 
 his charge, and pay and apply the same as he may from time to time be 
 directed and ordered by this court. And it is further ordered by the court 
 
 that said R F enter into bond to the people of the state of Illinois, 
 
 in the penal sum of dollars, conditioned that he will file an inven- 
 tory of said partnership property and effects, and as often as this court 
 shall require him, account for what he shall receive or have in charge as 
 such receiver, and pay and apply what he shall so receive or have in 
 charge, as he may from time to time be directed or ordered by this court, 
 and do and perform the duties of such receiver in all respects according 
 to the true intent and meaning of this order, and of the statute in such 
 case made and provided. And it is further ordered and directed by the 
 
 court that the said W S deliver over to said R F all the 
 
 property and effects of said partnership in his hands or under his control, 
 including all securities in his hands for debts due and effects belonging 
 to said partnership, and all books and papers relating thereto. And it is 
 further ordered, that in case it shall be necessary to put any of said debts 
 
 in suit for the recovery thereof, the said R F may make use of the 
 
 name of the said W S , as surviving partner of said A B , 
 
 deceased, for that purpose, provided, that said W S shall be in- 
 demnified out of said partnership property and effects against costs un- 
 necessarily incurred by such suits. And the said R F having ex- 
 ecuted and presented to the court his bond as such receiver, as above di- 
 rected, with C C and P S , as sureties, and the same being 
 
 in all respects satisfactory, it is ordered by the court that the same be 
 approved and filed. 
 
NO. LIV, LV.J FORMS. 321 
 
 Worm No. 54. 
 
 (§ 348.) 
 
 ADMINISTRATOR'S NOTICE. 
 
 Estate of A B , Deceased. 
 
 The undersigned having been appointed administrator of the estate of 
 
 A B , late of the county of and state of Illinois, deceased, 
 
 hereby gives notice that he will appear before the county court of 
 
 county, at the court house in , at the term, on the third Monday 
 
 in next, at which time all persons having claims against said estate 
 
 are notified and requested to attend for the purpose of having the same 
 adjusted. All persons indebted to said estate are requested to make im- 
 mediate payment to the undersigned. 
 
 Dated this day of , 18 — . 
 
 Q C , Administrator. 
 
 8w. (See Gro. Stat. p. 6.) 
 
 Form JVo. 55 
 (§ 348.) 
 
 PROOF OF PUBLICATION OF NOTICE FOB CEEDITOBS TO 
 
 APPEAR 
 
 Statb_op ^Illihois, J. In G(mnty 0ouH 
 
 The undersigned, G C , administrator of the estate of A 
 
 B , late of said county, deceased, being duly sworn on his oath says 
 
 that he has, pursuant to the requirements of the statute, given notice that 
 he fixed on the present term of this court, at the court house in said 
 county, for the settling and adjusting all claims against said decedent, 
 
 and published notice thereof in a newspaper, called the , published 
 
 in , in said county, and also by putting up a printed notice on the 
 
 door of the court house, and in five other of the most public places in this 
 county, namely: one at, etc., notifying and requesting all persons having 
 claims against said estate, to attend at the present term of this court, for 
 1ihe purpose of having the same adjusted ; said publication having been 
 made, and said notices having been posted, as aforesaid, more than sis 
 weeks previous to the first day of the present term. 
 
 Subscribed and sworn to this day of , 18—. 
 
 21 
 
322 FORMS. [NO. lvi, lvii. 
 
 Form No. 56. 
 
 (%% 349, 354.) 
 
 CREDITOR'S AFFIDAVIT ON A CLAIM PRESENTED FOR 
 ALLOWANCE. 
 
 State of Illinois, ) T ., „ . „ , 
 County. \ SSt ■"* the County Court. 
 
 C G , of said county, being duly sworn, on his oath says, that the 
 
 annexed account (or note) against the estate of A B , deceased, is 
 
 just and unpaid, and that all just credits thereon are set forth and al- 
 lowed. 
 
 C G- — . 
 
 Subscribed and sworn, etc. 
 
 Form No. 57. 
 
 (S 362.) 
 
 CLERK'S ENTRY OF AN ORDER OF COURT APPOINTING A 
 PERSON TO APPEAR AND DEFEND THE ESTATE, WHEN 
 A CLAIM IS PRESENTED AGAINST IT BY THE PERSONAL 
 REPRESENTATIVE, AND ALLOWANCE OF CLAIM. 
 
 In the Matter of the Claim of G C , Administrator of the 
 
 Estate of A B , against said Estate. 
 
 Now comes G C , and files his claim for allowance against the 
 
 estate of A- B , deceased, and the said Q C , being now 
 
 the administrator of said estate : It is ordered that W P , Esq., be, 
 
 and is hereby appointed to appear and defend said estate in the premises. 
 
 And thereupon the said W P appeared, and this cause now coming 
 
 on to be heard upon the exhibits and testimony of witnesses therein, and 
 
 the court being satisfied that the said claim of G C against said 
 
 estate is just and true, and that there is due to him thereon the sum of 
 
 ■dollars: It is considered and adjudged by the court that the said claim 
 
 of said <3 C , amounting to — — dollars, be allowed against said 
 
 estate, and "Chat the same be paid in due course of administration of said 
 estate. 
 
NO. LVIII, LIX, LX] FORMS. 323 
 
 Form No. SS. 
 
 (§ «tt.) 
 
 CLERK'S ENTRY OP A JUDGMENT WHERE THE SPECIAL 
 LIMITATION OP TWO YEARS APPLIES TO IT. 
 
 After stating the title of the cause and allowing the claim as in other 
 cases, add — 
 
 And that the same be paid in due course of administration out of the 
 
 estate of said A B , deceased, not inventoried or accounted for by 
 
 the administrator within two years after the date of letters of adminis- 
 tration upon said estate. 
 
 Form No. 59. 
 
 (§§406,368.) 
 
 CLERK'S ENTRY OP A JUDGMENT IN PAYOR OP A CRED- 
 ITOR OP THE PARTNERSHIP OP WHICH THE DECEASED 
 WAS A MEMBER. 
 
 Add to the ordinary judgment — 
 
 And that the same be satisfied in due course of administration, out of 
 such estate only of the deceased as remains after paying his individual 
 debts and the costs of administration. 
 
 Form No. GO. 
 
 rt 413.) 
 
 COMPLAINT OP PERSONAL REPRESENTATIVE OR PERSON 
 INTERESTED IN THE ESTATE, THAT ANY PERSON HAS 
 IN HIS POSSESSION, OR HAS CONCEALED OR EMBEZZLED 
 GOODS OP THE ESTATE 
 
 To tKe Honorable Judge of the County Court of County : 
 
 The undersigned G C , administrator (or a creditor or heir) of 
 
 the estate of A B , deceased, respectfully represents unto your 
 
 Honor, that he believes one H P , of — county, has in his pos- 
 
324 FORMS. [no. lxi. 
 
 session (or conceals or has embezzled) a certain (here describe the article,) 
 
 belonging to said A B , and wrongfully refuses to deliver the 
 
 same to the undersigned after demand made therefor. Wherefore the 
 
 undersigned prays that said H P may be cited to appear before 
 
 said court and compelled to answer such interrogatories as may be pro- 
 pounded to him touching the said , and to deliver said - — to the 
 
 undersigned. 
 
 Add a jurat. 
 
 Form &o. 61. 
 
 (§ 413.) 
 
 FORM OF CITATION AGAINST A PERSON WHO HAS IN HIS 
 POSSESSION, OR HAS CONCEALED OR EMBEZZLED 
 PROPERTY OE THE ESTATE. 
 
 State of Illinois, ) 
 County. y 
 
 The People of the State of 'Illinois, to H P ; 
 
 Whereas, G C , administrator of the estate of A B , 
 
 deceased (or as the fact may be), has presented his complaint under oath 
 
 to the county court of '■ county, setting forth that (here copy the charge 
 
 in the complaint). 
 
 You are therefore hereby cited to appear before said court on the 
 
 first day of the next term thereof, to be begun and holden at on the 
 
 third Monday of , 18 — , then and there to make answer under oath to 
 
 said complaint, and to do and abide by what our said court shall in that 
 behalf consider. 
 
 And hereof fail not at your peril. 
 
 Add the usual attestation clause. 
 
NO. LXII.] FORMS. 325 
 
 Form No. 62. 
 
 (§§ 412, 414.) 
 
 CLERK'S ENTRY OF PROCEEDINGS UNDER A CITATION TO 
 ANSWER ON A CHARGE OP POSSESSING, CONCEALING 
 OR EMBEZZLING PROPERTY BELONGING TO AN ESTATE. 
 
 In the Mattes of the Citation of H P , for Wrongfully 
 
 Keeping in his Possession (or Embezzling) a (Certain Note) 
 Belonging to A B , Deceased, from G C , Admin- 
 istrator of the Estate of said A B . 
 
 And now comes G C , administrator of the estate of A- B , 
 
 deceased, and also H P , who has been cited to answer in this 
 
 cause, and the said cause coming on to he heard, upon the complaint un- 
 der oath of said G C , alleging that (set out the charge contained 
 
 in the complaint) ; and the said H P , *now refusing to answer 
 
 proper interrogatories propounded to him touching the possession by him 
 of said : It is considered and adjudged by the court that he be com- 
 mitted to the jail of county until he shall answer said interroga- 
 tories. 
 
 Or, where answer is made claiming property in the respondent, proceed 
 as before to the asterisk, and add — 
 
 Answering' under oath, admits having the possession of said , but 
 
 insists that he is the owner thereof (or as the fact may be), and the court 
 having heard the testimony of witnesses produced, sworn and examined 
 
 in behalf of each party, and it appearing to the court that the said is 
 
 the property of A B , deceased, and that the same is possessed and 
 
 unlawfully detained by said H P from the said G C , as 
 
 administrator as aforesaid : It is ordered by the court that H P 
 
 immediately deliver the said to said G C , upon his demand 
 
 therefor. 
 
826 FORMS. [no. lxiii, LXIY. 
 
 Form No, OS. 
 
 (§§415,417.) 
 
 SUGGESTION BY THE PERSONAL REPRESENTATIVE TO THE 
 COUNTY COURT, THAT CLAIMS DUE THE ESTATE ARE 
 DESPERATE, ETC. 
 
 To the Honorable Judge of the County Court of County. 
 
 The undersigned, administrator of the estate of A B , de- 
 ceased, suggests and makes known to the court here, that the following 
 claims, debts and demands belonging to said estate, and which accrued 
 
 in the lifetime of said A B , are desperate, for the reasons here 
 
 stated, to-wit : 
 
 Note of E F , dated , 18 — , for dollars, payable on de- 
 
 mand. The maker insolvent (or gone to parts unknown). 
 
 Account against O P , for balance of dollars, due since , 
 
 18—. Barred by statute of limitations, which the debtor threatens to 
 plead against it. 
 
 The undersigned therefore asks that an order may be made for the com- 
 pounding or selling of said claims, or such other order as the court shall 
 deem proper in the premises, and as is authorized by law. 
 
 G C . 
 
 This form can easily be varied to meet any case arising under the statute. 
 
 Form No. 64. 
 
 (§§ 415, 417.) 
 
 NOTICE OF APPLICATION BY A PERSONAL REPRESENTA- 
 TIVE, FOR AN ORDER TO SELL OR COMPOUND DESPE- 
 RATE CLAIMS. 
 
 To all whom it may concern: 
 
 Whereas, The undersigned, administrator of the estate of A 
 
 B , deceased, has filed in the county court of county, a sugges- 
 tion that certain claims, debts and demands due to said estate from E 
 
 F and P , are desperate. 
 
 Notice is therefore hereby given that the undersigned will apply to said 
 county court, at the next term thereof, to be begun on the third Monday 
 
NO. LXY.] FOKMS, 327 
 
 ln 1 18—i for an order to sell or compound said claims; when and 
 
 where all persons interested can appear and show cause why such order 
 should not be made, if they think proper. 
 
 Dated this — day of , 18—. 
 
 2w - Q C , Adm'r. 
 
 Form Xo. 65. 
 
 (§§ 415, 417.) 
 
 CLERK'S ENTRY OP AN ORDER TO SELL OR COMPOUND 
 
 CLAIMS. 
 
 In the Matter of the Application of G C , Administrator 
 
 or the Estate of A B , Deceased, for an Order to Sell 
 
 OR COMPOTTND (OR AS THE CASE MAT BE) CLAIMS (DEBTS AND DE- 
 MANDS) which Accrued to said A B , in his Lifetime. 
 
 And now comes Q C , administrator of the estate of A 
 
 B , deceased, and this matter coming on to be heard upon the sugges- 
 tion of said G C , heretofore filed in this court, showing that cer- 
 tain claims (debts and demands), which accrued to said A B , in 
 
 his lifetime, to-wit : (here state the character of each claim against whom 
 and the amount of the same), are desperate, and upon his application for 
 an order ;o (sell, or compound, or file in this court, etc., according to the 
 fact) j and due notice to all whom it may concern of the time and place 
 
 of making said application having been given by said G C , and 
 
 no one appearing to show cause why such order should not be made : 
 It is therefore ordered by the court that the said claims be sold by said 
 administrator at public sale to the highest bidder (here direct the manner 
 and time of notice, § 415, as, at private sale ; or, that they be filed in this 
 court for the benefit of such heirs, devisees or creditors of the deceased, 
 etc., see § 415) ; and that he make report thereof to this court. 
 
328 FORMS. [NO. LXVI, LXYIL 
 
 Form No. 66. 
 
 (§f«M17.) 
 
 REPORT OF SALE OR COMPOUNDING OP DESPERATE DEBTS, 
 
 ETC. 
 
 Stateof Wois, J as> In County c<mrt> Term> 18 _. 
 
 To the Honorable Judge of said Court : 
 
 The undersigned, administrator of the estate of A B , deceased, 
 
 respectfully submits the following report of the sale (and compounding) 
 of desperate claims (debts and demands), belonging to the estate of said 
 
 A B , made and done in pursuance of an order of this court, at 
 
 the term thereof: 
 
 That he compounded the claim against E F , on his note ' 
 
 for $150 00 
 
 That he sold the note of R P at public (or private) sale, 
 
 after giving notice thereof as required by said order, at 35 00 
 
 Total amount received for desperate claims $185 00 
 
 That he was unable to compound with "W S the note against 
 
 him, or to sell the same, and therefore brings the same into court, to be 
 filed therein. 
 
 G C , Administrator. 
 
 Form Ho. 67. 
 
 {%i 436, 4-37.) ! 
 
 PETITION BY PURCHASER OF LAND FOR AN ORDER TO 
 
 CONVEY. 
 
 Sta™_of iLLmois, > ss In m . rmU Cow(> Tmni AJ) 18 __ 
 
 To the Honorable Judge of said Court : 
 
 Your petitioner, R P , respectfully represents, 
 
 That, on the day of , A. D. 18 — , one C D executed and 
 
 delivered to him a contract (or bond or agreement) bearing date the day and 
 year last mentioned, — a copy of which contract, marked " Exhibit A," is 
 hereto annexed and made a part of this petition ; (or, of which the fol. 
 
no. lxvil] forms. 329 
 
 lowing is a copy,) — whereby the said C D agreed (or hound him- 
 self) to convey by deed to your petitioner the following described 
 
 land (describe the land as in the agreement, stating the county in which 
 
 it is situated), upon the payment to him, the said C D , of the sum 
 
 of dollars, payment whereof was secured by three promissory notes 
 
 of your petitioner, bearing even date with said agreement, each calling 
 for dollars and interest, payable annually, at — per cent. ; one pay- 
 able one year, one two years, and one three years after date. 
 And your petitioner further represents, that he fully paid each of said 
 
 notes, on or about the day of , 18 — , and was then entitled to a 
 
 deed of conveyance of said land ; that the said C D , immediately 
 
 thereafter, to wit: on or about the day of , 18 — , departed this 
 
 life, without having executed and delivered to your petitioner a deed of 
 
 conveyance of said land, leaving A D and F D , his only 
 
 children and heirs. That said A B was, on or about the day 
 
 of , 18 — , appointed administrator of the estate of said C D , 
 
 deceased, by the county court of said county of , in the state of Illi- 
 nois ; and that said F D is a minor, and has no guardian. 
 
 (If part of the payment for the land was made to the administrator, the petition may 
 allege payment of a part to the deceased; his death, the appointment of his administra- 
 tor; the payment of the remaining money to the administrator; the survivorship of the 
 children, etc. The survivorship of the wife need not he alleged, except in case there 
 were no surviving children, when she becomes an heir.) 
 
 Tour petitioner therefore prays the aid of this court in the premises; 
 that a guardian ad litem for the said defendant F D may be ap- 
 pointed, and that the court will order the said administrator to execute 
 and deliver to your petitioner a deed of conveyance of said land, accord- 
 ing to the intent and meaning of said contract. 
 
 O R , SoVrfor Petitioner. 
 
 Note.— This form can easily be changed to a petition by the administrator for an or- 
 der to convey. 
 
- Obdeb of Conveyance. 
 
 830 FOKMS. [NO. LXVIII. 
 
 form So. 68. 
 
 (§436.) 
 
 ORDER DIRECTING AN ADMINISTRATOR TO CONVEY LAND. 
 
 State of Illinois, ) 
 
 County. J In the Circuit Court, Term, A. D. 18 — . 
 
 O R , Petitioner, 
 
 vs. 
 A B , administrator of the 
 
 estate of C D , deceased, 
 
 and A D and F 
 
 D , Defendants. 
 
 And now, to wit: , 18 — , comes the petitioner, by L N , his 
 
 solicitor, and it appearing to the court that the defendants, A B and 
 
 A D , have been duly served with process in this cause more than ten 
 
 days before the first day of the present term of this court, and the said A 
 
 B and A D having been severally three times solemnly called, 
 
 came not but made default: It is therefore ordered by the court that the 
 said petition be taken as confessed by them. And it further appearing 
 to the court that the defendant, P D , was duly served with pro- 
 cess in this cause more than ten days before the first day of the present 
 term of this court, and that he is a minor and has no guardian: It is or- 
 dered by the court that R C , Esquire, be appointed guardian ad 
 
 litem for him. And thereupon the said guardian ad litem files the answer 
 of said minor defendant herein, showing nothing against the prayer of 
 the petition. 
 
 And now, to wit : , 18 — , this cause coming on to be heard upon 
 
 the petition, exhibit, answer of guardian ad litem, and the testimony of 
 witnesses examined in open court, and it satisfactorily appearing to the 
 court that (here set forth the findings of the court in conformity to the 
 material allegations of the petition ; or, that the several material allega- 
 tions of the petition have been proven to the satisfaction of the court), 
 
 and that the petitioner is entitled to have a deed from said A ■ 
 
 B , conveying to him said lands (or the following described lands, etc.) 
 
 It is therefore adj udged and ordered by the court that the said A B , 
 
 as administrator of the estate of C D , deceased, execute and de 
 
 liver to said petitioner a deed, conveying to him the said land (the 
 
 quality of the deed may be specified). And that the petitioner have and 
 
 recover of and from the estate of the said C D his costs in this 
 
 behalf expended, to be paid in due course of administration. 
 
 For form of deed see Form No. 83, and notes, which will sufficiently guide in this 
 matter. 
 
NO. LXIX] FORMS. 331 
 
 Form &o. 69. 
 
 « 453.) 
 
 ACCOUNT OF PERSONAL ESTATE AND DEBTS TO BE MADE 
 PREPARATORY TO PILING A PETITION FOR AN ORDER 
 TO SELL REAL ESTATE. 
 
 State of Illinois, ) 
 
 County. ) ' In the County Court. 
 
 A Just and True Account of the Personal Estate and Debts of 
 C D , late of said County, Deceased. 
 
 The undersigned A B , administrator of the said estate, charges 
 
 himself with the following specified personal estate : 
 
 To amount of sale bill $500 00 
 
 " widow's award 1, 000 00 
 
 " collected of C B on note 50 00 
 
 " ofH C on account 90 00 
 
 Total amount received from all sources $1 ,640 00 
 
 Contba. 
 
 And the said administrator credits himself with the following disburse- 
 ments, made pursuant to the order of court, as appears by the records thereof 
 (or, by receipts herewith presented). 
 
 1873, Jan.24. By cash paid O.R $75 00 
 
 " Feb. 1, " H.C 425 00 
 
 " 1, " widowfor her award 1,000 00 
 
 1, " R. S 78 00 
 
 " 1, " F. G. Welton, clerk's fees 12 00 
 
 Total amount paid out $1, 590 00 
 
 Amount in administrator's hands 50 00 
 
 Amount of Debts due said Estate, not collected. 
 
 Note of O. S., (doubtful) ' $45 68 
 
 Note of C. C, (desperate) 25 00 
 
 Account of W.S., (desperate) 83 25 
 
 Total amount due estate, doubtful and desperate $153 93 
 
 Amount of Claims allowed against the M state, as appears from the 
 Records of the Court. 
 
 E H 690 00 
 
 (Here state each account allowed, including widow's award, 
 Stat. §70; 38 111. 301). 
 
 Total amount of claims allowed $3,165 00 
 
332 FORMS. [NO. LXX. 
 
 Estimated amount of just claims to be presented, including 
 costs of administration $800 0C 
 
 Total indebtedness of estate $3,965 00 
 
 Deducting amount paid out 1, 590 00 
 
 $2, 375 00 
 Deduct probable amount -which may be collected on doubtful 
 and desperate debts '. 25 00 
 
 Leaving a deficit of personal assets of $2,350 00 
 
 I, A B , administrator of the estate of C D , deceased, do 
 
 certify that the foregoing is a just and true account of the personal estate 
 and debts of said deceased, as far as I have been able to discover. 
 
 A- 
 
 March 20, 1873. 
 
 Form No. 70. 
 
 (§§ 453, 457, and consult also §§454, 455, 456, 458.) 
 
 FORM OF PETITION FOR AN ORDER TO SELL REAL ESTATE 
 TO PAT DEBTS. 
 
 State o^hamon, J sg- In Qmnty Courf> Termj A _ ^ 18 _. 
 
 To the Honorable, Judge of said Court: 
 
 Your petitioner, A B , administrator of the estate of C 
 
 D (or, if such is the fact, " administrator with the will annexed, of 
 
 the estate of C D ;" or, " executor of the last will and testament 
 
 of C D "), late of said county, deceased, respectfully represents: 
 
 That the said C D departed this life at , on or about the 
 
 day of , 18—. 
 
 That your petitioner was, on the day of , 18 — , appointed by 
 
 this court, administrator of the estate of said C D (or according 
 
 to the fact), as will appear by the record thereof remaining in this court. 
 
 That an inventory, appraisement bill and sale bill of said estate have 
 been made and filed in the office of the clerk of this court, and been duly 
 approved by this court; and that your petitioner has made to this court a 
 
 just and true account of the personal estate and debts of the said O 
 
 D ; which said account was approved by this court. 
 
 That the personal estate of said C D , as will more particularly 
 
 appear from the aforesaid account, amounts to dollars, exclusive of 
 
 doubtful claims in the hands of your petitioner, amounting to dol- 
 
NO. LXX] FORMS. S33 
 
 lars, and desperate claims in his hands, amounting to dollars, from 
 
 which he will probably collect about the sum of dollars. 
 
 That the claims allowed against said estate amount to dollars, as 
 
 appears by the said account, and that in addition thereto, your petitioner 
 estimates that there are just claims against said estate, to be presented, 
 
 amounting to about dollars, held by the following named persons, 
 
 to wit : 
 
 D s $570 00 
 
 R p 950 00 
 
 Total $1,520 00 
 
 Making the total indebtedness of said estate dollars ; to which must 
 
 be added the costs of administration, amounting to about dollars. 
 
 That your petitioner has paid the sum of dollars upon claims of 
 
 the first, second, third, fourth and fifth classes, as appears by his said ac- 
 count, rendered to this court, at the term thereof, 18—, leaving in his 
 
 hands the sum of dollars. 
 
 And that there is a deficiency of personal estate to pay the remaining 
 claims against said estate and the costs of settling thereof, amounting to 
 about dollars. 
 
 And your petitioner further represents, that the said C D died 
 
 having claim and title ■ to real estate situated in said county of , and 
 
 state of Illinois, described as follows, to-wit : ; also, the following 
 
 described real estate situated in county, in said state, to-wit : ." 
 
 That the said C D left him surviving B D , as his widow, 
 
 having a dower interest in his real estate, and the following named chil- 
 dren, A D and F D , his only heirs, of whom said F 
 
 D is a minor, under twenty-one years of age (if a male, or eighteen 
 
 years of age, if a female. See Burson v. (Joodspeed, 4 Leg. News, 242), 
 and has no guardian resident in the state of Illinois. (If any heir or 
 devisee has a guardian or a conservator, that fact should be stated, to- 
 gether with the name of such guardian or conservator. If the deceased 
 died testate, then, aftersetting forth the facts in reference to his widow and 
 children, if any, as above directed, add, " and also the following named de- 
 visees, to-wit : K F and C F — ," and if they are minors or have 
 
 conservators, set forth that fact as above directed. If any other person is 
 actually occupying the premises, add, " and your petitioner further repre- 
 sents that one O R is an actual occupant of the said premises," or 
 
 some part thereof, if such is the fact, and describe such part. If persons 
 whose names are unknown are interested in the premises, that fact may be 
 
 1 See note at the end of this form. 
 
 2 When the petition and all the Bubseqnent papers and deed in the case, describe a dif- 
 ferent tract of land from that intended, equity will not correct the mistake, and compel 
 the conveyance of the tract intended by the personal representative to be sold. Ward 
 y. Brewer, 19 111. 291. 
 
334 FORMS. [NO. hXX. 
 
 set forth thus : " and the unknown owners of so much of said premises aa 
 
 descended, or was devised, to R D , deceased ;" or, " the unknown 
 
 children," etc.*) 
 
 Wherefore, in consideration of the premises, your petitioner prays that 
 this court may appoint some discreet person as guardian ad litem for said 
 minor heir, to appear and defend his interest herein. And that this court 
 will order and direct your petitioner to sell the said real estate, or so 
 much thereof as may be necessary to pay said deficiency, and to make 
 such further order herein as to this court may seem proper. 
 
 A B , Adm , r (or Ex'r.) 
 
 L N , Solicitor. 
 
 State of Illinois, ) 
 County. J ' 
 
 A B , the above mentioned petitioner, makes oath and says that 
 
 the allegations contained in the foregoing petition, are true according to 
 his best knowledge and belief. 
 
 Subscribed and sworn before me this day of , 18 — . 
 
 Note. Where it is desirable to have dower assigned (see §§ 513-523) to the widow 
 before the sale, it would be proper to insert at the * in the above form, as follows : 
 
 And your petitioner further says, that the said C D , at the time of his death, 
 
 had no claim and title to any real estate within the state of Illinois, so far as your peti- 
 tioner has been able to discover, except that above described, and that if the said 
 widow's dower therein shall be previously allotted to her, it will enable him to sell the 
 remainder for a higher price than could otherwise be obtained therefor. [And in place 
 of the closing paragraph, insert as follows.] 
 
 And that this court will cause to be allotted and set off to said B D her dower 
 
 in the said real estate, and order and direct your petitioner to sell the said real 
 estate or so much thereof as may be necessary to pay said deficiency, and to make, etc." 
 
 We have seen (ante, §§ 513-520) what character of estates are subject to dower. The 
 statutory words, u having claim and title," as describing the interest of the deceased in 
 the real estate, are not, it is conceived, a sufficient description for the purpose of having 
 dower assigned. In Davenport v. Farrar, 1 Scam. 315, it was held, that the words 
 " owner and proprietor " were insufficient in a petition for dower to describe the estate 
 of the deceased husband of the petitioner, and that the petition should state such 
 facts as would show that the deceased was possessed of such an estate as is contem- 
 plated by the statute. 
 
 If the widow applies to have dower assigned to her, under the statute giving juris- 
 diction to county courts, it would be proper to do so by cross-petitions in the form of a 
 cross-bill in equity. And such a petition should state the original petition, or rather the 
 parties, and prayer, and objects of it, the proceedings thereon, and the rights of the 
 party exhibiting the petition. 1 
 
 The widow should file her answer before filing the cross-petition. 
 
 » Story's Eq. PI. § 401. 
 
no. lxxi, lxxil] forms. 335 
 
 Form No, 71. 
 
 ii% 464, 466, 467. 
 
 RETURN OF SERVICE OP A SUMMONS. 
 
 I have served this summons upon the within named C S and 
 
 J S , by reading the same to them, and upon the within named 
 
 R S , by leaving a copy thereof at his usual place of abode, with 
 
 D S , his daughter, who is a member of his family, over ten years 
 
 of age, and informing her of the contents thereof, this day of , 
 
 18 — . F S not found in my county. 
 
 C P— 
 
 Jform No. 79. 
 
 (§ 468.) 
 
 AFFIDAVIT OF NON-RESIDENCE, ETC., OF A DEFENDANT. 
 (This ma; be annexed to the petition.) 
 
 State^fJllinois, J sg In the County Court. Term, 18-. 
 
 A B , Administrator of the estate 
 
 of C D , deceased, Petitioner, 
 
 IIS. 
 
 B D , A D , and others, 
 
 Defendants, j 
 
 Petition fob an Ohdbr to 
 Sell Real Estate. 
 
 The said A B , upon his oath says, that the said A D re- 
 sides out of the state of Illinois, and that the place of his residence is un- 
 known to this affiant (or, that he resides at Lowville, Lewis county, New 
 York. Any other fact may be stated as a reason for non-service of process, 
 as required by § 104 of the statute). 
 
 Subscribed and sworn, etc. 
 
FORMS. 
 
 [NO. LXXIII. 
 
 Form No. 73. 
 
 (§§ 468, 469, 474.) 
 
 NOTICE OF PETITION FOB AN ORDER TO SELL REAL ESTATE 
 TO PAT DEBTS. 
 
 Administkatoe's Notice. 
 
 State of Illinois, 
 County. 
 
 ss. 
 
 In County Court, Term, 18 — . 
 
 Petition fob an Obder to 
 
 Sell Real Estate. 
 
 (§453.) 
 
 A B , Administrator of the estate * 
 
 of C D , deceased, Petitioner, 
 
 es. 
 
 B D , A D , F D , 
 
 O R , and the unknown owners, 
 
 of so much of the premises hereinafter 
 described as descended (or was devised) 
 
 to R D , deceased, from (or by) 
 
 said C D ■, deceased, Defendants. 
 
 An affidavit having been filed by the petitioner (or K , solicitor 
 
 for the petitioner), in the office of the clerk of said court, showing that 
 
 said defendant, A D , resides out of this state, and that the place 
 
 of his residence is unknown to the affiant; (following the allegations in 
 
 the affidavit,) notice is therefore hereby given to said A D , that 
 
 the said A B has filed his petition in said court, praying for an 
 
 order to sell the following described real estate, situated in county, 
 
 Illinois, to wit: (correctly describe the premises,) to pay the debts and 
 
 claims against the estate of said C D , and that summons in said 
 
 cause will be returnable at the term of said court, to be holden at the 
 
 court house in , in said county, on the Third Monday in , 18 — . 
 
 Now, unless you, the said A D^ — , shall appear before said court, 
 
 on the first day of said term thereof, and plead, answer or demur to the 
 said petition, the allegations contained therein will be taken as confessed 
 by you, and an order entered in accordance with the prayer of said peti- 
 tion. 
 
 F G W , 
 
 Clerk of the County Court. 
 
 K , SoVr for Petitioner. (4w.) 
 
 Note. — The clerh must, -within ten days of the first publication of the notice, send a 
 copy thereof by mail', addressed to the defendant whose place of residence is stated in 
 the affidavit. S468. 
 
SO. LXXXV, LXXY.] 
 
 FORMS. 
 
 337 
 
 Form No. 74. 
 
 {%% 471-473.) 
 
 PRINTER'S OR PUBLISHER'S CERTIFICATE OP PUBLICATION. 
 
 I, C B , printer (or publisher) of the , a weekly news- 
 paper published in , county, Illinois, do certify that the notice, 
 
 of which the annexed is a copy, was published in said newspaper, four 
 successive weeks, and that the date of the first paper containing the same 
 
 was , 18 — , and the date of the last paper containing the same was , 
 
 18—. 
 
 , ,18-. C B . 
 
 Printers' fees, $ . Paid by (the administrator). 
 
 Form No. 75, 
 
 (§ «6.) 
 
 ANSWER OP GUARDIAN AD LITEM. 
 
 State of Illinois, 
 
 J S3- In County Court, Term, A. I). 18—. 
 
 — B , Administrator of the estate 
 
 of C D , deceased, Petitioner, 
 
 vs. 
 
 — D , A D and P 
 
 D , and others, Defendants. 
 
 Petition foe an Okdeb to 
 Sell Real Estate. 
 
 The answer of the said P D , infant defendant to said petition, 
 
 by R C , his guardian ad litem, respectfully showeth, that (here set 
 
 out the special matter of defense, as that the deceased was not indebted to 
 the claimants mentioned in the petition, or) he is not advised concerning 
 the matters alleged by the petition, and therefore prays the protection of 
 the court in the premises. 
 
 By R- C , Ms Guardian ad litem. 
 
 22 
 
338 
 
 FORMS. 
 
 [NO. LXXVL 
 
 .Form No. 76. 
 
 (85 481-496.) 
 
 ORDER OF SALE. 
 
 State op Illinois, ' 
 County. 
 
 In County Court, Term, A. D. 18 — . 
 
 A B , Administrator of the estate 
 
 of C D , deceased, Petitioner, 
 
 vs. 
 B D , A D , F D , 
 
 and O R , Defendants. 
 
 Okdeb op Sale op Lands 
 to Pat Debts. 
 
 And now, to wit : , 18 — , comes the petitioner, by L N , his 
 
 solicitor, and the defendant, B D , by S T , her solicitor, 
 
 comes and flies her answer to the petitioner's petition ; and it appearing to 
 
 the court that the defendant, A D , is a non-resident of the state of 
 
 Illinois, and has been duly notified of the pendency of this cause by pub- 
 lication of notice thereof, and sending a copy thereof by mail addressed 
 
 to him as required by law, and that the defendant, O — — R , has been 
 
 duly served with process in this cause according to law, ten days before 
 
 the first day of the present term of this court; and the said A D 
 
 and O R , having been severally three times solemnly called, came 
 
 not, but made default : It is therefore ordered by the court that said peti- 
 tion be taken as confessed by them. And it further appearing to the 
 
 court that the defendant, F D , was duly served with process in 
 
 this cause ten days before the present term of this court, and that he is a 
 minor and has no guardian resident in this state: It is ordered by the 
 
 court that R— — C , Esquire, be appointed guardian ad litem for him. 
 
 And thereupon the said guardian ad litem files the answer of said minor 
 defendant herein, showing nothing against the prayer of the petition; 
 and the petitioner files his replication to the answer of said defendant 
 
 And now, to wit; , 18 — , this cause coming onto be heard upon the 
 
 petition, answers and replication aforesaid, and the records of this court 
 and testimony of witnesses examined in open court, and it satisfactorily 
 
 appearing to the court that the said C D departed this life on or 
 
 about the — day of , A. D. 18 — , leaving B D , his widow, and 
 
 the following named children, viz: A D and F D , his 
 
 only heirs ; that the petitioner was appointed administrator of the estate 
 
 of said C D , deceased, by this court, on the — day of , 18 — , 
 
 and that the said petitioner has made a just and true account to this court 
 
NO. LXXVI.] FOESIS. 339 
 
 of the personal estate and debts of the said C D , showing that 
 
 said personal estate is insufficient to pay the just claims against the estate 
 
 of said D ; and it appearing to the court that the deficiency 
 
 aforesaid amounts to the sum of dollars, together with interest and 
 
 costs. And it further appearing to the court that the said C D 
 
 died having claim and title to the following described real estate situ- 
 ated in the county of , and state of Illinois (here describe it as in the 
 
 petition). 
 
 And it further appearing to the court that it will be necessary to sell the 
 above described real estate (or, such part of it as the court may direct) to 
 pay the deficiency aforesaid with the expenses of administration now due 
 and to accrue:* It is therefore ordered by the court, that the said peti- 
 tioner proceed according to law (see ante, § 497) to advertise and make 
 sale of the real estate above described, or so much thereof as may be 
 necessary to pay said deficiency, together with the expenses of adminis- 
 tration now due and hereafter to accrue.** And it is further ordered by 
 the court that said sale be made On the following terms, to wit : one half 
 of the purchase money to be paid upon the confirmation of the petitioner's 
 report of said sale by this court, and the remainder months there- 
 after ; such remainder to be secured by note with good personal security 
 and mortgage on the premises sold : and that the petitioner make report to 
 this court of his proceedings in this behalf with convenient speed. (See 
 
 ante, § 497.) 
 
 * J H , Judge, etc. 
 
 Note. — It may be desirable to give more specific directions in regard 
 to the sale. In such case the following form may be satisfactory : 
 
 It is therefore ordered by the court, that the petitioner proceed to sell 
 said real estate (or such part as the court may direct), or so much thereof 
 as may be necessary to pay said deficiency, together with the expenses of 
 administration now due and hereafter to accrue, at public vendue, to the 
 highest bidder ; said sale to be made on the premises (or, at the front door 
 
 of the post office in the city of , in said county of ), on such day 
 
 as he shall appoint, between the hours of ten o'clock in the forenoon and 
 five o'clock in the afternoon ; and that the petitioner first give not less 
 
 than weeks public notice of such sale, by posting up not less than 
 
 large printed notices in the most public places in said county, and 
 
 also bv causing a similar notice thereof to be published successive 
 
 weeks "in the newspaper printed nearest to said lands, in this state (or m 
 the Kewanee Independent and the Prairie Chief, one of which must be the 
 nearest newspaper to the lands) ; such notices to state the time, place, and 
 conditions of the sale, and a description of the premises to be sold. Con- 
 elude as above, or as may be desirable. 
 
340 forms. [iro. lxxvil 
 
 FORM OF ORDER "WHERE DOWER IS ASSIGNED — APPOINT- 
 MENT OF COMMISSIONERS TO SET OFF DOWER. 
 
 (Stat. Dower, § 24; Gro. Stai. p. 820, § 36, and see pp. 218-220.) 
 
 Where the personal representative prays <ff or the allotment of dower to the 
 widow (see §§ 513-522), the order appointing the commissioners may fol- 
 low the foregoing form as far as the asterisk (*) and then continue as fol- 
 lows: 
 
 And it further appearing to the court that said C — - D was seized 
 
 of said real estate in fee (or any other estate of inheritance, according to 
 
 the fact), that said B* I) , as widow of said C D- — , is entitled 
 
 to dower in all of said premises : 
 
 It is therefore ordered and adjudged by the court that the said B 
 
 D-**- be endowed of one third part of said real estate, and that L 
 
 G , F C and M P be appointed commissioners, to set 
 
 off and allot to said B D her dower in said premises. And it is 
 
 further ordered that said commissioners first take the oath prescribed by 
 
 law, and then go upon said premises, and allot and set off to said B 
 
 D her dower by metes and bounds, according to quality and quantity, 
 
 of said premises, giving her the homestead or dwelling house of said 
 
 C D , deceased, if she desires it (and may set off and allot the 
 
 whole of said dower in a body, or out of two or more og said tracts of 
 land, in such manner as they may deem best to all persons interested), and 
 make return in writing under their hands and seals, to the court, of their 
 doings in this behalf by virtue hereof; and if the said commissioners find 
 that said premises are not susceptible of division without great injury 
 thereto, they will so report to the court. 
 
 Form JTo. 77. 
 
 (Stat., title Dower, § 24.) 
 
 OATH OF COMMISSIONERS APPOINTED TO ASSIGN DOWER. 
 
 State venue and title of the case as in the Order, No. 76. 
 
 I do solemnly swear that I will fairly and impartially allot and set off 
 to B D , widow of C D , her dower out of the lands and ten- 
 ements described in the order of the court, for that purpose, in the above 
 entitled cause, if the same can be made consistently with the interest of. 
 the estate, according to the best of my judgment: So help me God. 
 
 L G . 
 
 M P . 
 
NO. LIXVIII.] FOEMS. 341 
 
 Subscribed and sworn before me, this day of , 18 — . 
 
 J K , J. P. 
 
 Note.— The oath must be administered by the court or a justice of the peace. (Stat. 
 Bower, § 34.) The commissioners must be sworn, and the statement of that fact, with 
 the oath they took, should accompany their report. Loyd v. Malone, 23 111. 43. 
 
 FormXo. 78. 
 (Gro. Stat. Dower, p. 319, | 39.) 
 
 BEPORT OF COMMISSIONERS TO ASSIGN DOWER, 
 
 State venue and title of the case as in the Order, No. 76. 
 
 To the Honorable, Judge of said Court: 
 
 The undersigned, commissioners, appointed by an order of said court 
 
 in the above entitled cause, to allot and set off to B I) , widow of 
 
 C D , deceased, her dower out of the real estate described in said 
 
 order of the court, do in conformity with law and the said order make 
 the following report: 
 
 That having first taken and subscribed an oath to fairly and impartially 
 
 allot and set off to said B D her dower in the premises aforesaid, 
 
 if the same could be done consistently with the interest of the said estate, 
 and according to the best of our judgment; which oath is hereto attached 
 
 and made a part of this report; we afterwards, to-wit: on the day 
 
 of , 18—, went upon said real estate, and after having carefully exam- 
 ined the quality and ascertained the quantity by admeasurement thereof, 
 
 we proceeded to allot and set off to the said B D her dower out of 
 
 the same, by metes and bounds, according to quality and quantity, in the 
 following manner, to-wit: "We alloted to her the homestead or dwelling 
 
 house of the said C D , deceased, according to her desire, with the 
 
 following described tract or parcel of land upon which the same is situ- 
 ated. [Here describe the tract.] All of which is respectfully submitted. 
 
 Witness our hands and seals this day of , 18—. 
 
 # L Q . [seal] 
 
 p C . [seal] 
 
 M P • [seal] 
 
 The report must be under seal. Stat. Dower, § 25. 
 
342 FORMS. [NO. lxxxx. 
 
 Form JTo. 79. 
 
 (Stat. Dower, § 39.) 
 
 ORDER APPROVING THE REPORT OF THE COMMISSIONERS 
 TO ASSIGN DOWER, AND EOR THE SALE OF THE RE- 
 MAINING LAND TO PAY DEBTS. 
 
 Title of the cause, etc., as in Form No. 76. 
 
 And now, to wit : comes again the petitioner, by his solicitor, and the de- 
 
 fendant, R D , by her solicitor, and the said minor defendant, F — 
 
 D , by R C , his guardian ad litem, and the commissioners 
 
 heretofore appointed by this court, to allot and set off dower to said B 
 
 D out of the real estate described in the petition, having made and 
 
 filed their report, showing that they had allotted and set ofi from said real 
 
 estate, to wit : [here describe it as in the petition] unto the said B 
 
 D , as and for her dower therein [here describe the dower as in the 
 
 report], and it appearing to the court that said commissioners have com- 
 plied in all respects with the law and with the order of this court appoint- 
 ing them as such, and no objections or exceptions having been made to 
 their report : It is ordered that the said report be approved, and that the 
 said B D have as and for her dower in the said real estate men- 
 tioned in the petition, all that portion thereof above described as allotted 
 and set off to her by said commissioners. And it is further ordered by 
 the court, that the said petitioner proceed, according to law, to advertise 
 and make sale of the real estate above described to wit: [here describe 
 all of the real estate mentioned in the petition, including that set off for 
 dower, which latter will of course be sold subject to the dower interest], 
 or so much thereof as may be necessary to pay the deficiency of personal 
 
 estate of said C D , deceased, to satisfy the just claims against his 
 
 estate, heretofore ascertained and found by the court, in this cause, to be 
 
 dollars, and interest, and also the expenses of administration now 
 
 due and hereafter to accrue. [Proceed as in Form No. 76 after the double 
 asterisk, **.) 
 
NO. LXXX, LXXXI.j POEMS. 34S 
 
 Form. No. SO. 
 
 (§§ 497, 499.) 
 
 NOTICE OF SALE. 
 
 Administbatob's Sale op Beal Estate. 
 
 By virtue of an order of the county court of county, in the state of 
 
 Illinois, made at the term thereof, A. D. 18 — , upon the petition of the 
 
 undersigned, administrator of the estate of C D , deceased, against 
 
 B D and others, I will, on the day of next, between the 
 
 hours of ten o'clock in the forenoon and five o'clock of the afternoon of 
 said day, sell at public vendue, at the front door of the court house, in the 
 
 village of , in county (or on the premises, or at the front door of 
 
 the post office in , etc.), the following described real estate situated in 
 
 county, in the state of Illinois, to wit ; all the interest of the said 
 
 C D , deceased, in the (here describe the real estate with common 
 
 certainty). 
 
 Terms of sale : one-third in hand and the remainder in months ; to be 
 
 secured by note with good personal security and mortgage of the premises 
 sold. No conveyance to be made till the sale has been reported and ap- 
 proved by said court. (The terms, of course, will follow strictly the di- 
 rections of the order of sale.) 
 
 A B , Administrator. 
 
 Date. 4w. 
 
 The advertisement must follow the directions, if any, in the order as to the time, place 
 and terms of sale; otherwise the requirements of the statute are all that are necessary. 
 
 Form No. 81. 
 
 (§ 497.) 
 
 REPOET OF SALE. 
 
 State op Illinois, ) ln the Gmmty Cmrt , 
 County. ) 
 
 Petition for Obdeb to 
 Sell Real Estate. — Be- 
 pobt of Sale. 
 
 A B , Administrator of the estate 
 
 of C D' , deceased, Petitioner, 
 
 vs. 
 B D , A D , F D , 
 
 and O B , Defendants. 
 
 To the Honorable, Judge of said Court : 
 The undersigned, administrator of the estate of said C D , de- 
 
344 FORMS. [NO. lxxxil 
 
 ceased, respectfully reports unto your Honor, that, m pursuance of the 
 
 order of this court; made at the term, 18 — , In the above entitled 
 
 cause, directing the sale of the real estate hereinafter described, he posted 
 notices of the sale of said real estate in four of the most public places in 
 
 county, on the day of , 18 — , and also caused a similar notice 
 
 to be published four successive weeks prior to the day of sale hereinafter 
 mentioned, in the Kewanee Independent, the nearest newspaper in this 
 
 state, the first publication of which notice was on the day of , 
 
 18 — , and the last on the day of , 18 — , a copy of which notices, 
 
 with the printer's certificate of publication thereof, marked "Exhibit A," 
 
 is hereto annexed and made a part of this report. That on the day 
 
 of , 18 — , between the hours of ten o'clock in the forenoon and five 
 
 o'clock in the afternoon, at (here set forth the place of sale mentioned in 
 the notices), being the time and place of sale specified in said notices, he 
 offered the following described real estate for sale at public vendue to the 
 highest bidder therefor, to wit : (here specify a tract of land or a lot, as 
 
 described in the petition and order) : and 8 Y having bid therefor 
 
 the sum of dollars, which was the highest bid for the same, the said 
 
 tract of land (or lot) was struck off and sold to him for said sum. And 
 
 thereupon the said S Y paid to the undersigned the sum of 
 
 dollars upon the purchase money of the said real estate, and executed and 
 
 delivered to the undersigned a note, with O P for security, for 
 
 dollars, being the remainder of the purchase money of said real es- 
 tate so purchased by him, and also executed and delivered to the under- 
 signed a mortgage of said real estate to secure the payment of said note. 
 (The report should show a strict compliance with the directions of the de- 
 cree, whatever they may be.) 
 
 All of which is respectfully submitted. 
 
 A B , Administrator, 
 
 Date. 
 
 Form No. 82. 
 
 (S WO 
 
 ORDER APPROVING THE REPORT OP SALE. 
 
 Title of court and cause as before. 
 
 And now, to wit: , 18 — , comes A B , the above named ad- 
 ministrator, and files his report of the sale made by him of real estate, 
 pursuant to an order of this court made at the term, 18 — ; and it ap- 
 pearing to the court that the said administrator in making said sale has in 
 
NO. LXXXIII.J FOKJIS. 345 
 
 all respects complied with the directions of the statute and of said order : 
 It is ordered by the court that the said report he approved (and that the said 
 administrator execute and deliver to the purchaser of said real estate a deed 
 conveying the same to the purchaser thereof). 
 
 Form Xo. 83. 
 
 (§§501, m.) 
 
 DEED BY AN ADMINISTRATOR, UNDER AN ORDER OF COURT, 
 
 Know all men by these presents, that, whereas, A B admin- 
 istrator of the estate of C D , deceased, appointed as such adminis- 
 trator by the county court of the county of , in the state of Illinois, did, 
 
 at the term of said court, A. D. 18—, in a certain cause therein pend- 
 ing, entitled " A B , administrator of the estate of C • D , de- 
 ceased, Petitioner, vs. B D , A D , F D and O 
 
 R , Defendants," obtain an order of said court for the sale of the real 
 
 estate hereinafter described, to satisfy the indebtedness of said C B , 
 
 deceased, and the expenses of administration : And, whereas, at a sale 
 by said administrator in pursuance of the directions of said order, made 
 
 on the day of , 18 — , the following described real estate situated 
 
 in the county of , and state of Illinois, to wit : (describe it), was struck 
 
 off and sold by him to John Styles, of , for the sum of dollars 
 
 (and if such is the fact, say, which sale was reported to and approved by 
 
 said court at the term thereof, 18—, and an order made directing the 
 
 conveyance of the said tract of land to said John Styles). 
 
 Now, therefore, in consideration of the said sum of money, paid by the 
 
 said John Styles, the said A B , as said administrator, does by these 
 
 presents convey to the said John Styles all the claim and title of said C 
 
 j) ) deceased, to and in the above described real estate. Dated this 
 
 day of , 18 — . 
 
 A B , Administrator, [seal] 
 
 Acknowledgment as in other cases. 
 
 Note —The title of the cause, the name of the court, and the date of the term of 
 court at which the order was obtained must he referred to in the deed. Stat. 1872, Tit. 
 Conveyances, § 12. A court of equity will compel an administrator to amend deeds 
 made in these cases so as to set forth the above facts. Thorp v. McCullum, 1 Gilm. 614. 
 
346 FORMS. [no. lxxxiv. 
 
 Form No. 84. 
 
 (Note to Form of Will No. 1, § 810; Stat. Tit. Dower, §§ 9, 10.) 
 
 RENUNCIATION BY A WIDOW OB SURVIVING HUSBAND OF 
 A TESTATOR, OF HER OR HIS CLAIM TO LEGACIES 
 AND BEQUESTS IN A WILL, (% 532) AND RENUNCIATION 
 BT A WIDOW OF A JOINTURE IN HER FAVOR. 
 
 To the Honorable Judge of the County Court of County: 
 
 I, A B , widow (or surviving husband) of E B , late of 
 
 the county of , and state of , do hereby renounce and quit all 
 
 claim to the benefit of* any legacy or devise, made to me by the last will 
 and testament of said deceased husband (or wife) which has been exhib- 
 ited and proved according to law (or otherwise, as the case may be),* and 
 I do elect to take in lieu thereof, my dower or legal share of the estate of 
 my said husband (or wife). 
 
 Dated at, etc. 
 
 In case of a widow renouncing her jointure under the statute, Tit. Dower, §9, insert 
 between the asterisks the words, " of the jointure provided in my favor by (here de- 
 scribe the instrument and state the date, and the parties to it). 
 
NO. LXXXV.] 
 
 FORMS. 
 
 347 
 
 Form No. SS. 
 
 (S§ 534-537.) 
 
 ANNUAL SETTLEMENT. 
 
 State of Illinois, ) 
 Oounty. ] ' 
 
 To flie Honorable Judge of the County Court of said County: 
 
 The undersigned, administrator of the estate of A B , deceased, 
 
 respectfully submits to the court the following report of his acts and do- 
 ings as such administrator, from his appointment to , 18 — . 
 
 Date. 
 
 1871. 
 July 1 
 Oct. 1 
 
 7 
 
 Nov. SO 
 
 1872. 
 Mar. 1 
 
 1871. 
 July 1 
 " 20 
 
 Oct. 1' 
 
 " 7 
 
 Nov. 10 
 
 1872. 
 June 1 
 
 Items of Receipts. 
 
 Cash on hand at decease . 
 
 Amount of appraisement hill 
 
 Amount of personal property taken by 
 
 the widow at appraised value 
 
 Amount of sale bill 
 
 Amount. 
 
 Total Am't. 
 
 Excess of receipts for personal property 
 over the amount of appraisement bill 
 
 Collected S. Wright's note 
 
 Collected John Day's account . 
 
 Total receipts 
 
 Items of Cash and Property Paid Out. 
 
 To F. G.Welton, County Clerk, fees — 
 C. Bassett, for publishing notice to 
 
 creditors 
 
 Appraiser's fees 
 
 Amount of property taken by C 
 
 B— — , widow of deceased, at ap 
 
 praised value 
 
 Amount paid widow — remainder of 
 
 her award 
 
 H B , for digging grave .... 
 
 Gearhart & Crawford, for hearse and 
 
 livery at funeral 
 
 H. C. Parker, for coffin 
 
 W. T. Cross, for monument 
 
 J. C. Smiley, physician's services in 
 last sickness 
 
 Amount in administrator's hands 
 
 $550 00 
 670 00 
 
 $1,220 00 
 
 $7 50 
 
 2 50 
 6 00 
 
 550 00 
 
 275 00 
 3 00 
 
 25 00 
 30 00 
 
 75 00 
 
 15 00 
 
 Bolls. Cts. 
 $230 90 
 1,190 00 
 
 30 00 
 
 53 00 
 138 00 
 
 $1,641 00 
 
 989 00 
 
 $652 00 
 
 All of which is respectfully submitted. G C , Administrator. 
 
348 FOKMS. [NO. lxxxvi, lxxxvii. 
 
 Form JVo. 86. 
 
 (88 584-5.) 
 
 CLERK'S ENTRY OP AN ORDER TO NOTIFY THE HEIRS OP 
 THE DECEDENT OP THE PINAL SETTLEMENT BY THE 
 ADMINISTRATOR. • 
 
 In the Matter of Notice to the Heirs of A B , Deceased, of 
 
 the Pinal Settlement of G— ■ — C , Administrator of the 
 
 Estate of said A B . 
 
 And now comes C , administrator of the estate of A 
 
 B , deceased, and represents to the court that he will be ready to make 
 
 a final settlement of said estate, at the term of this court (or on a 
 
 day in term time to be stated), and asks an order of the court directing 
 
 what notice he shall give of such settlement to the heirs of said A 
 
 B ; and upon consideration thereof, it is ordered that, on or before 
 
 , 18 — , he deliver, or cause to be delivered, to each of said heirs a 
 
 written notice of the said settlement (or, that on or before, etc., he mail 
 to each of them a written notice), informing them of the time and place 
 of such settlement. 
 
 Form No. S7. 
 
 (§534.) 
 
 NOTICE TO HEIRS OP THE TIME AND PLACE OP MAKING 
 PINAL SETTLEMENT AND PROOP OP SERVICE. 
 
 State of Illinois, ) r ., „ . -, 
 Count* J m C0Unty 0oUrt - 
 
 Estate of A B , Deceased. 
 
 To B , widow and heir of said A B : 
 
 Take notice that the undersigned, administrator of the estate of A 
 
 B , deceased, will at the June term of said county court (or according 
 
 to the order), present his final settlement as such administrator to said 
 court for approval, and pray an order for the distribution of the moneys 
 remaining in his hands after payment of the debts of said estate and costs 
 of administration (or according to the fact), when and where you may ap- 
 pear and object to said settlement if you see fit. 
 
 G C . Administrator. 
 
 Dated, etc. 
 
NO. LXSXVIII.] 
 
 State of Illinois, 
 County. 
 
 FORMS. 
 
 {■S3. 
 
 G- 
 
 3 , being duly sworn on his oath, says, that he delivered a 
 
 copy of the foregoing notice to C B and E B , on the — 
 
 day of — — 18 — , and that he, on the same day, mailed a copy of said 
 notice directed to E B , at , the place of his residence. 
 
 Subscribed and sworn, etc. 
 
 Form So. 88. 
 
 (§§ 534, 537.) 
 
 FINAL SETTLEMENT 
 
 Title the same as in Form No. 85. 
 
 Date. 
 
 Itbmb of Receipts. 
 
 Amount. 
 
 Total Am't. 
 
 1872. 
 
 
 
 $652 00 
 203 50 
 
 Sept. 2 
 
 
 
 
 
 17 50 
 
 
 Items of Cash Paid Out. 
 
 
 
 Sept. 10 
 
 $175 00 
 8 25 
 
 111 72 
 
 $873 00 
 
 F Gr Welton Clerk, fees 
 
 
 
 Adm'rs commissions on $1,862, 6 per 
 
 
 
 Amount in administrator's hands 
 
 294 97 
 
 
 
 
 $578 03 
 
 
 Recapitulation. 
 Am't received at first annual settlement. . 
 
 $1,641 00 
 221 00 
 
 
 
 
 
 
 $1,862 00 
 
 
 
 $989 00 
 294 97 
 
 
 Am't paid out at this settlement 
 
 
 
 1,283 97 
 
 
 
 
 $578 03 
 
 
 
 
 And the undersigned respectfully represents that all the assets of said 
 estate have been collected, and all of the debts of said estate which were 
 
350 FOEMS. [NO. lxxxis. 
 
 filed in the office of the clerk of this court within two years after the date 
 of his letters of administration, have teen established and have been paid, 
 and the last mentioned balance of $578.03 remains in his hands for dis- 
 tribution among the heirs of said A B , as the court shall direct. 
 
 All of which is respectfully submitted. 
 
 Q C , Adm'r. 
 
 Form Xo. 89 
 (%% 534, 533, 549.) 
 
 CLERK'S ENTRY OF AN ORDER OP DISTRIBUTION. 
 
 In the Matter of the Final Settlement of G C , Admin- 
 istrator of the Estate of A B , Deceased, and the 
 
 Distribution of the Moneys, (and Property) Remaining in 
 his Hands, among the Heirs. 
 
 And now comes Q . C , administrator of the estate of A 
 
 B , deceased, and shows to the satisfaction of the court that he has 
 
 given notice of his final settlement to all the heirs of said A B , 
 
 as heretofore directed by this court, and presents his final settlement, 
 showing that all of the assets of said estate have been collected, and all 
 of the debts of said estate which were filed in the office of the clerk of 
 this court within two years after the date of his letters of administration 
 have been established, and have been paid by him, and that there remains 
 
 in his hands, for distribution among the heirs of said A B , the 
 
 sum of dollars, and cents ; and upon examination thereof, the 
 
 same appearing to be in all respects correct, and none of the heirs of the 
 deceased appearing to object thereto, it is ordered by the court that said 
 settlement be approved. And it having been made to appear to the court 
 that B , the widow, and E B and P B , the chil- 
 dren of said A B , deceased, are his only heirs ; it is further or- 
 dered that the said sum of money be distributed and paid to said widow 
 
 and children, as follows : To said widow the sum of dollars and 
 
 cent3, and to each of said children the sum of dollars and cents, 
 
 upon the giving to him by each of said distributees of a bond, with good 
 security, to refund the due proportion of any debt which may thereafter 
 appear against said estate, and the costs attending the recovery thereof, 
 and that said administrator file such bonds in this court, and make report 
 of his proceedings in this behalf. 
 
NO. XO, XCI.] FORMS. 351 
 
 Form No. 90. 
 
 (S§ 534, 549.) 
 
 CLERK'S ENTRY OF AN ORDER APPROVING OF PAYMENT 
 TO DISTRIBUTEES AND OF REFUNDING BONDS. 
 
 Ik the Matter of the Distribution op the Estate of A — B — , 
 Deceased, and his Report thereof. 
 
 And now comes G C , administrator of the estate of A B — . 
 
 deceased, and shows to the court here that, in compliance with the order 
 
 of this court made at the term thereof, 18 — , he has distributed and 
 
 paid to the heirs of said A. B , the balance of the moneys of said 
 
 estate remaining in his hands, and taken and filed with this court the sev- 
 eral refunding bonds executed to him by said heirs ; wherefore it is or- 
 dered by the court that his proceedings in that behalf be approved. 
 
 Form JTo. 91. 
 
 (§5 538, 641.) 
 
 CLERK'S ENTRY OF AN ORDER OF COURT DIRECTING THE 
 APPORTIONMENT OF MONEYS AMONG THE CREDITORS 
 PRO RATA. 
 
 In the Matter of the Settlement of G C , Administrator 
 
 of the Estate of A B , Deceased. 
 
 And now comes C , administrator of the estate of A B , 
 
 deceased, and files his settlement showing that the whole amount of 
 moneys and assets which has come into his hands as such administrator, 
 
 is dollars, and that the whole amount of debts established against said 
 
 estate is dollars ; and also showing that the debts of the first, second, 
 
 third, fourth and fifth classes amount to dollars, and those of the sixth 
 
 class to dollars, and that there is not sufficient money in his hands to 
 
 pay but fifty per cent, of the amount of said debts of the sixth class. And 
 the said settlement appearing to be in all respects correct: It is ordered 
 by the court, that the same be approved, and that the administratior pay all 
 She said debts of the first, second, third, fourth and fifth classes in full, and 
 ttiat he pay on each of said debts of the sixth class fifty per cent, of the 
 amount thereof. 
 
352' FORMS, [no. xcii, xciil- 
 
 The settlement on which this order is founded is easily made tip on the plan of Form 
 No. 85, and will show, instead of the items of credits there stated; 1st. Money on hand 
 at the decease. 2nd. The property taken hy the widow on her award. 3d. All moneys 
 received at the sale. 4th. Those collected on sale notes. 5th. Those collected on notes 
 and accounts due the estate, and 6th. The total. 
 
 It will then Bhow: 1st. All of the debts of each class established against the estate, 
 and the total amount of each class. 2d. ^The total amonnt of bo many of the preferred 
 classes as are not equal to the amount of money and assets above mentioned, Then it 
 will show the remainder, and what per cent, of the next class of debts entitled to pay- 
 ment. 
 
 Form No. 92. 
 (§544.) 
 
 CITATION TO AN ADMINISTRATOR TO MAKE SETTLEMENT. 
 
 State of Illinois, ) 
 County: J 
 
 The People of the State of Illinois^ to Q G ; 
 
 You are hereby cited to appear before our county court, of the county 
 
 of , on the first day of the next term thereof, to be begun on the third 
 
 Monday of , 18 — , then and there to make a settlement of the estate of 
 
 A B , deceased, of which you are the administrator, or to show 
 
 cause why the same is not done. 
 
 Witness, etc., (the usual attestation clause.) 
 
 Form No. 93. 
 
 (8544.) 
 
 CLERK'S ENTRY OF PROCEEDINGS ON A CITATION OF AD- 
 MINISTRATOR TO MAKE SETTLEMENT. 
 
 In the Matter of the Citation of G C , Administrator 
 
 of the Estate of A B , Deceased, to Make Settle- 
 ment. 
 
 And now comes G C , administrator of the estate of A B , 
 
 deceased,* and presents his settlement to the court, and the same appear- 
 
NO. XOIV.J FORMS. 353 
 
 ' ing to be in all respects correct, it is ordered by the court that the same be 
 
 approved. And the said G C , having failed to show cause why the 
 
 said settlement was not made : It is considered and adjudged by the court 
 that he pay the costs of this proceeding. 
 
 Or, and now this matter coming on to be heard, and the said G 
 
 C having failed to appear and make settlement of the said estate of 
 
 A B , as the administrator thereof, or to show cause why the same 
 
 is not done ; and it appearing to the court that citation to make such set- 
 tlement or show cause as aforesaid on the first day of this term, has been 
 duly served upon him more than ten days prior to the said first day of this 
 term : It is ordered by the court that an attachment issue against him, the 
 
 said G C , returnable forthwith (or, on the first day of the next 
 
 term of this court). (See Stat, title Administration, § 131 ; Q-ro. Stat., title 
 Courts § 44.) 
 
 Form Xo. 94. 
 
 (5 544.) 
 
 ATTACHMENT WBIT FOR CONTEMPT. 
 
 State of Illinois, ) gg 
 County. ) 
 
 The People of the state of Illinois, to the sheriff of said county, Greeting : 
 
 "We command you that you attach , so as to have his body 
 
 before our county court within and for said county of , forthwith 
 
 (or on the first day of the next term thereof), to answer unto us touching a 
 certain contempt by him lately committed against us, as it is said, and 
 further to do and receive what our said court shall in that behalf consider. 
 Hereof fail not, and have you then and there this writ. 
 
 Witness, , Clerk of our said court, and the seal thereof, 
 
 [seal.] at , in said county, this day of , A. D. 18—. 
 
 , Clerk. 
 
 23 
 
354 forms. [no. xcv, xcyj. 
 
 Form No. 95, 
 
 (§ 544.) 
 
 CLERK'S ENTRF OF FINE FOR CONTEMPT. 
 The People op the State op Illinois, \ 
 
 vs. y Attachment for Contempt. 
 
 c • ) 
 
 And now com es the said defendant, G C , in the custody of the 
 
 sheriff on an attachment against him for contempt, and this cause coming 
 
 on to be heard, and the said G C having made and submitted to 
 
 the court his answer under oath touching the contempt alleged against 
 him in this cause, and the court having heard all the evidence submitted 
 by the parties, and having fully considered the same, doth find that the 
 
 said G C is guilty of contempt, in this, that he has failed and 
 
 refused to make a settlement of the estate of A B , deceased, 
 
 whereof he was and is the administrator, appointed by this court, or to 
 show cause why such settlement is not made, though heretofore cited so 
 to do ; and Ijhat he ought to pay a fine of twenty dollars (or, be impris- 
 oned for the term of five days). It is therefore considered and adjudged 
 by the court that the people of the state of Illinois have and recover of 
 
 the said G C the said sum of twenty dollars, together with the 
 
 icosts of this proceeding (or, that he be imprisoned in the county jail for 
 the said term of five days, and that he pay the costs of this proceeding). 
 
 Until the attachment is granted, the proceedings are entitled in the name of the civil 
 proceeding, whatsoever that may be; but after the attachment has been granted,- all of 
 the proceedings must be in the name of the people. 9 Johns. 160; 5 Johns. 235, and 
 cases cited. 
 
 Form Xo. 96. 
 
 (§646.) 
 
 APPLICATION BY A PERSON ENTITLED UNDER AN ORDER 
 OF THE COURT TO MONEYS OF THE ESTATE, FOR AN 
 ATTACHMENT TO COMPEL THE ADMINISTRATOR TO PAY 
 SUCH MONEYS. 
 
 To flie Honorable Judge of the County Court of County: 
 
 The undersigned respectfully represents unto your honor, that he is a 
 creditor of the estate of A B , deceased, of which estate G 
 
KO. XCVII.] , FORMS. 855 
 
 C is the administrator ; that his claim was allowed by this court on 
 
 the day of , 18 — , against said estate, for the sum of dollars, 
 
 and that the same was classed by this court as of the fourth class. And he 
 
 further says that, on the day of , 18 — , such proceedings were had 
 
 in this court, that an order was made directing said administrator to pay 
 over to all of the creditors of said fourth class out of the moneys of said 
 estate in his hands, the full amount of their respective claims allowed by 
 this court: all of which appears of record in said court. And the under- 
 signed further represents that on the day of , 18 — , he demanded 
 
 of said G C the payment of the aforesaid claim in his favor. Yet 
 
 the said G C , notwithstanding more than thirty days have elapsed 
 
 since the said demand was made, has not paid the same or any part 
 thereof, but refuses so to do. Wherefore, the undersigned prays that this 
 
 court will order an attachment against said G C , to the end that 
 
 he may be compelled to pay the said claim. 
 Bated, etc. 
 
 W S . 
 
 Add a jurat. 
 
 Form JVo. 97. 
 
 (SS45.) 
 
 CLERK'S ENTRY OP ORDER GRANTING AN ATTACHMENT 
 AGAINST A PERSONAL REPRESENTATIVE FOR FAILING 
 OR REFUSING TO PAT OVER MONEYS IN HIS HANDS AS 
 DIRECTED BY THE COURT. 
 
 In the Matter of the Application op W S , fob an At- 
 tachment against G C , Administrator of the Estate 
 
 of A B , Deceased. 
 
 Now comes W S and files his application under oath, for an 
 
 attachment against G C , administrator of the estate of A 
 
 B , deceased, for failing and refusing to pay over to him, for more than 
 
 thirty days after demand made by him therefor, the amount due him and 
 ordered by this court to be paid, in full out of the moneys of said estate 
 in his hands, on a claim allowed by this court in his favor against said 
 estate ; and it appearing to the court that the said G C , adminis- 
 trator as aforesaid, has failed and refused to pay over said moneys to said 
 
 ^y s within thirty days after demand made therefor : It is ordered 
 
 by the court that an attachment issue to the sheriff of county, against 
 
 sa j,l q C , returnable forthwith. 
 
356 . FORMS. [no. xcviu, xcix 
 
 Form So. 98. 
 
 (§545.) 
 
 CLERK'S ENTRY OF AN ORDER TO IMPRISON AN ADMINIS- 
 TRATOR FOR CONTEMPT OF COURT, IN NOT OBEYING 
 ITS ORDER TO PAY OVER MONEYS. 
 
 The People of the State op Illinois, ) 
 
 vs. y Attachment for Contempt. 
 
 G C . J 
 
 And now comes the defendant, G C , in the custody of the 
 
 sheriff, on an attachment issued by this court against him for contempt, 
 and this cause coming on to be heard, and the court having heard the tes- 
 timony submitted as well by the people as by the defendant, and the court 
 
 having fully considered the same, doth find that the said G C is 
 
 guilty of contempt in this, that he has hitherto failed and refused to pay 
 
 over unto W S , for more than thirty days after demand made by 
 
 said W S therefor, the amount due to him the said W S , 
 
 on a claim allowed on the day of , 18 — , by this court in his favor 
 
 and against the estate of A B , deceased, of which estate said 
 
 G C is admistrator, for the sum of dollars, and which the 
 
 said G C was, on the day of , 18 — , ordered by this court 
 
 to pay in full out of the moneys of said estate in his hands : It is there- 
 fore considered and adjudged by the court, that said G C be com. 
 
 mitted to the jail of the county of , there to remain until he shall pay 
 
 over the amount of said claim to said W S , in compliance with 
 
 the aforesaid order of this court, or until he is discharged by due course 
 of law; and that he pay the costs of this proceeding. 
 
 Form No. 99. 
 (§ 545.) 
 
 COMMITMENT FOR CONTEMPT. 
 State of Illinois, 
 
 k.TE of Illinois, ) 
 County f ss " 
 
 2 he People of the State of Illinois, to the Sheriff of said County : 
 
 Whereas, on the day of , 18 — , G — — C , administrator 
 
 of the estate of A B , deceased, was attached and brought before 
 
NO. C] FOKMS. 357 
 
 the county court of said county for contempt, in disobeying the order of 
 
 said court, made on the day of , 18—, directing him, the said 
 
 G C , as administrator as aforesaid, to pay out of the moneys of 
 
 said estate then in his hands, to F B , son and heir (or a creditor) 
 
 of said A B , deceased, within thirty days after demand made 
 
 therefor by the said F B , the sum of dollars, due him, the 
 
 said F B , upon his distributive share of said estate (or judgment 
 
 rendered in his favor against said estate, as the fact may be), and such 
 proceedings were had by and before said court in the premises, that said 
 
 G C was convicted of failing and refusing to pay over said sum 
 
 of money to said F B , for more than thirty days after demand 
 
 made therefor by said F B , and was adjudged by said court guilty 
 
 of contempt, and ordered to be committed to the jail of said county for 
 the contempt aforesaid, to remain until he complies with said order, or 
 until he is discharged by due course of law. 
 
 "We therefore command you, the said sheriff, to take the said G 
 
 C into your custody in the said jail, and him there safely keep until 
 
 he shall pay over to said F B the moneys aforesaid, in compliance 
 
 with said order, or until he is discharged by due course of law. Hereof 
 fail not at your peril. 
 
 Add testatum clause as in other cases. 
 
 Form No. 100. 
 
 (I 549.) 
 
 BOND FROM A LEGATEE OR DISTRIBUTEE TO AN" EXECUTOR 
 OR ADMINISTRATOR, TO REFUND MONEY PAID TO HIM 
 AS LEGATEE OR DISTRIBUTEE. 
 
 Bond may be in the usual form, but running to the executor or admin- 
 istrator. 
 
 The condition of the above obligation is such, that, whereas the above 
 bounden F B has this day been paid by said G C , exe- 
 cutor of the last will of A B , deceased (or, administrator of the 
 
 estate of A B , deceased), the sum of dollars, being the amount 
 
 of the legacy bequeathed by the last will of said A B , to him the 
 
 said F B (or, the distributive share of the estate of said A 
 
 B , due to the said F B , as heir at law of said A B ) : 
 
 Now, therefore, if the above bounden F B shall refund his due 
 
358 FOEMS. [NO. CI. 
 
 proportion of any debt which may hereafter appear against said estate, 
 and the costs attending the recovery thereof, then this obligation to be 
 void ; otherwise to remain in full force and effect. 
 
 F B . [seal] 
 
 T Y . [seal] 
 
 Witness E E . 
 
 Form So. 101. 
 
 (I 551.) 
 
 APPLICATION BT ADMINISTRATOR FOR THE COURT TO 
 APPORTION AMONG DISTRIBUTEES AMOUNT NECES- 
 SARY TO PAY A DEBT WHICH APPEARED AGAINST 
 THE ESTATE, AFTER DISTRIBUTIVE SHARES HAVE 
 BEEN PAID. 
 
 To the Honorable Judge of the County Court of County. 
 
 The undersigned, administrator of the estate of A. B , deceased, 
 
 respectfully represents, that, as such administrator, he, on the — day of 
 
 , 18 — , paid to C B , widow, and E B and F B , 
 
 children of A B , deceased (the said widow and children being the 
 
 only heirs and distributees of the estate of said A B ), the sum of 
 
 two thousand dollars each, and took their respective bonds for the re- 
 funding of the due proportion of any debt which might thereafter appear 
 against said estate, which said bonds, showing the amoifht so paid them 
 respectively, are on file in this court. And the undersigned further repre- 
 sents that, afterwards there appeared against said estate a debt amounting 
 
 to dollars due to one W S , who caused the same to be 
 
 allowed by this court, on the day of , 18 — , and ordered to be 
 
 paid in due course of administration; that the undersigned afterwards 
 filed a settlement in this court showing that he had collected all the money 
 and assets belonging to said estate, and showing that he had paid all 
 other debts against said estate and the costs of settlement thereof, and that 
 
 there remained in his hands the sum of dollars ,which was applicable 
 
 to the payment of said claim of W S , and which sum has since 
 
 been paid to said W S . And the undersigned further says there 
 
 is now due to said W S the sum of dollars, principal and 
 
 interest thereon, amounting to dollars, and the costs of this proceed- 
 ing he estimated at dollars, amounting in all to dollars, and that 
 
 there is no money of the said estate in the hands of the undersigned, for the 
 payment thereof. Wherefore he prays that an apportionment of said last 
 
NO. CII.J FORMS. 359 
 
 mentioned sum may be made by this court among said heirs, so that they 
 may refund shares thereof in proportion to the amount received by them 
 respectively as aforesaid. 
 
 Q C , Administrator. 
 
 Date. 
 
 Form No, 103. 
 
 (§551.) 
 
 CLEEK'S ENTRY OP AN ORDER APPORTIONING AMOUNT 
 TO BE REFUNDED BY DISTRIBUTEES FOR THE PAYMENT 
 OP DEBTS. 
 
 In the Matter of the Application of G C , Administrator 
 
 of the Estate of A B , Deceased, for an Apportion- 
 ment of the Amount of Moneys to be Refunded by the Dis- 
 tributees of said Estate for the Payment of Debts. 
 
 And now comes G C , administrator of the estate of A B , 
 
 and shows to the court that on the day of , 18 — , he paid to C 
 
 B , the widow, and E B and P B , the only children of 
 
 A B , deceased (the said widow and children being the only heirs 
 
 and distributees of the estate of said A B ), the sum of dollars 
 
 each, and took their respective refunding bonds as provided by law, and 
 that afterwards there appeared against said estate a debt amounting to 
 
 dollars, due to one W S , and that the same was allowed by 
 
 this court on the day of , 18 — , and ordered to be paid in due 
 
 course of administration ; that said G C afterwards made a set- 
 tlement with this court, showing thereby that he had collected all of the 
 moneys and assets belonging to said estate, and that he had paid all the 
 
 debts, except the said debt owing to W S , and also the costs of 
 
 settlement; that there then remained in his hands the sum of dollars, 
 
 which sum he has since paid to said "W S upon said claim, and 
 
 that there is now due to said W S the sum of dollars, princi- 
 pal, and interest thereon, amounting to dollars, and that the costs of 
 
 this proceeding will be dollars, amounting in all, to dollars ; 
 
 and that said administrator has no moneys of said estate in his hands for 
 the payment thereof, and prays an apportionment of said last mentioned 
 sum by this court among said heirs and distributees according to the 
 
360 FORMS. [no. cm 
 
 amount received by them respectively as aforesaid. And the court being 
 now fully advised in the premises, and being satisfied of the .truth of 
 
 said allegations : It is ordered by the court that the said C B , 
 
 E B and F B , respectively, within sixty days from the 
 
 date hereof, refund to said administrator, the sum of dollars and in- 
 terest thereon from this date, for the purpose of paying the sum remain- 
 ing due as aforesaid to said W S ; and it is further ordered by the 
 
 court that said G C immediately make demand of the said dis- 
 tributees for the sum hereby ordered to be refunded by them. 
 
 Worm No. 103. 
 
 (S 553.) 
 
 CLERK'S ENTRY OF DECLARATION THAT THE ESTATE IS 
 INSOLVENT. 
 
 In the Matter of Declaring the Estate of A B , Deceased, 
 
 Insolvent. 
 
 And now, to wit, , 18 — , more than two years having elapsed since 
 
 the grant by this court of administration upon the estate of A B , 
 
 deceased, and it appearing to the court from the inventory, appraisement 
 
 bill and the settlement heretofore made by G C , administrator of 
 
 said estate, and records of this court, that the whole assets of said estate do 
 not amount to sufflcient to pay the debts and just demands against the 
 same, together with the costs and expenses of settlement: It is therefore 
 ordered by the court that said estate be declared insolvent. 
 
INDEX. 
 
 A- 
 
 Section. 
 ABATEMENT, 
 
 suit commenced by an administrator to collect, not to abate 
 
 when his letters are revoked, - ... - - - 231 
 ABSENCE, 
 
 death presumed from, after seven years, .... 139 
 ABSENT WITNESS TO "WILL, 
 
 degree of diligence required to discover his residence, 169 
 
 handwriting may be proved, - 169 
 
 ACKNOWLEDGMENT, 
 
 of the execution of a will — what sufficient, ~ - 162-164 
 
 (See Note to Form No. 7.) 
 
 ACTION, 
 
 on bond of personal representative who has been removed, - 263 
 on bond of personal representative guilty of laches, etc., 539 
 
 before it can be brought for legacy, the court must order it 
 
 paid, - 552 
 
 those which survive, - • - - - 296, 297, 398, i, c, d. 
 those which do not, 398, i, c, d. 
 
 ADMINISTRATION, 
 
 in what county granted, ... .... 234 
 
 lapse of seven years a bar to granting letters, - 236 
 
 ADMINISTRATORS, 234-246 
 
 appointment of, in what county, ... . 234 
 
 proof of death and other jurisdictional facts to be first made, 235 
 
 (Form No. 14.) 
 who entitled to be, - - - - - - - - 237, 239 
 
 order of preference, 239 
 
 relinquishment by those who are preferred, - 240 
 
 preference ceases at seventy-five days after death, - - - 240 
 
 oath, - 241 
 
 (Form No. 17.) 
 
362 index. 
 
 Section. 
 ADMINISTRATORS— continued. 
 
 bond, 242 
 
 (Form No. 18.) 
 letters, 235,239 
 
 (Form No. 19.) 
 revocation of letters. (See Revocation.) 
 
 acts done by administrator where letters are revoked in con- 
 sequence of production and probate of will, valid, 254 
 
 liable to suit on bond by administrator de bonis non, if letters 
 
 are revoked, 263,266 
 
 if sole administrator dies an administrator de bonis non to be 
 
 appointed, -- 264 
 
 if one of several dies or his letters are revoked, vacancy may 
 be filled, 265 
 
 may resign — how to proceed, 268 
 
 resignation and acceptance amounts to revocation, - . 269 
 each of several liable for the acts of the other, - - . 270 
 
 chargeable with the personal estate they do or might re- 
 ceive, - - - '- - - - 275,409-411 
 (See Collection of Assets.) 
 
 representative of deceased, cannot be called upon to account 
 
 by administrator de bonis non, - ... 428 
 
 suits between co-administrators, - - - 552 
 
 settlement by (See Settlement and Distribution), 
 
 to pay to county treasurer, when ordered by the court, bal- 
 ance remaining in his hands and belonging to nonresi- 
 dent or unknown claimants, 5^4 
 
 ADMINISTRATOR TO COLLECT, 
 
 when to be appointed, ----.... 227 
 bond, 228 
 
 (Form No. 12.) 
 oath, - - 229 
 
 (Form No. 11.) 
 
 powers and duties stated, 230, 231 
 
 duties cease upon grant of letters to executor or administra- 
 tor — must deliver over property — penalty for failure — 
 
 commission forfeited, 232 
 
 ADMINISTRATOR WITH WILL ANNEXED, 
 
 Widow, etc., — to be appointed during minority or other dis- 
 qualification of executor named in the will, - 218 
 
 appointment of, in other cases, 263, 265 
 
 oath, 222 
 
 (Form No. 9.) 
 his duty is to settle the estate, not to execute trusts ; these will be 
 
 committed to trustees by chancery, - - - 226 a. 
 
INDEX 363 
 
 Section. 
 ADMINISTRATOR WITH WILL ANNEXED— continued. 
 
 has no power to sell real estate under a power given to the 
 
 executor in the will, - .... 440 
 
 so if a power of sale is so given and no executor named in 
 
 the will, - - .440 
 
 may bring suit on bond of predecessor who has been removed, 263 
 ADMINISTRATOR DE BONIS NON, ' 
 
 when appointed, 259,263-265 
 
 may bring suit on bond of predecessor whose letters have 
 
 been revoked, - 266,267 
 
 but not if his predecessor died, 266, 267 
 
 cannot sue on a note given to a former administrator, nor for 
 money of the estate in the hands of former administra- 
 tor's attorney, 428 
 
 ADMINISTRATOR, PUBLIC, 
 
 how appointed, 247 
 
 when he may administer, .... 247,248,237,240 
 
 what facts should be made to appear, 247 
 
 in what county, 248 
 
 official oath, 347 
 
 (Form No. 20.) 
 
 bond to be given, 249 
 
 (Form No. 18.) 
 
 neglect to obtain letters and give bond vacates office, - - 249 
 
 vacancy to be filled, 249 
 
 letters to be revoked if persons having preference appear, - 250 
 
 to secure effects of decedents in certain cases, - - 252 
 balance of estate remaining in his hands— notice to be 
 
 given — and to be paid into county treasury, - 251 
 his commissions and expenses, - - 250, 252 
 ADMINISTRATORS, FOREIGN AND EXECUTORS, 
 
 foreign administrators with will annexed may bring suits in 
 
 this state, (last par.) - - 233 
 foreign executors and administrators may prosecute suits for 
 
 claims in this state, and sell lands to pay debts — must 
 
 have authenticated letters — exception, - - 233 
 
 how letters authenticated, (n. 2.) ... 233 
 may sue out execution on a judgment rendered in favor of 
 
 deceased in his lifetime, (n. 1.) - 233 
 
 foreign executors may execute wills in this state, (par. 2.) - 33? 
 
 authority to be shown and to give bond, (par. 2.) - - 233 
 sales of land made by, previous to 1853, may be approved 
 
 and confirmed, (par. 3.) 233 
 
 appeal allowed from such order, (par. 4,) 233 
 
364 INDEX. 
 
 Section 
 ADVANCEMENT, 
 
 to a child, 533 
 
 ADVERTISEMENT, 
 
 (See Notice.) 
 ADOPTED CHILD, 
 
 when and from whom it may inherit, ..... 533 
 ADULTEROUS RELATION, 
 
 existing between testator and devisee will not, in the absence 
 
 of improper influences, avoid a will, .... 194 
 AGE, 
 
 (See Minomtt.) 
 extreme old age as affecting mental capacity, ... 30 
 
 AGREEMENT, 
 
 with testator to do specified acts in consideration of provis- 
 ions in will, is binding, 199 
 
 ALIENS, 
 
 power to of, make wills, -- 8 
 
 ALIENATION OF SUBJECT OP DEVISE, 
 
 how far it revokes will, 76, 78 
 
 ALTERATION OF LAW, 
 
 eflect of, on settlement of estates, 130, 131 
 
 ALTERATIONS OP WILLS, 
 
 to be attested, etc., 64, 65 
 
 AMBIGUITY, 
 
 latent, defined, 112, 120 
 
 testimony of scrivener to remove latent ambiguity, 104 
 
 statements of testator when receivable to explain, 104, 112, 119 
 extrinsic evidence to remove, 119, 120, 121 
 
 ANNUITY, 
 
 defined, 309 
 
 ■ to be inventoried, ......... 272 
 
 to whom it belongs, 309 
 
 APPEAL, 
 
 from county court allowing or disallowing probate of will 
 
 — how taken, ... - - 173 
 
 from judgments, orders and decrees — when allowed — secu- 
 rity in, - - - 578,580 
 
 evidence in support of will and against it — on appeal from 
 
 an order allowing or refusing probate, 150-152, 155, 167, 174 
 
 181-184, 358 
 
 if probate allowed on appeal from county court refusing 
 
 probate, will may be contested in chancery, - - . 174 
 
 if refused in circuit court also, the decision is conclusive, - 175 
 
index. 365 
 
 . .,.,_ , -r . Section. 
 
 APPEAL — continued. 
 
 practice on appeal in such cases, 176 
 
 APPLICATION OP PURCHASE MONEY, 
 
 purchaser from administrator at private sale not bound to 
 see to the application of purchase money by adminis- 
 trator, 330 
 
 APPORTIONMENT, 
 
 of debts to be paid among devisees 491 
 
 APPRAISERS AND APPRAISEMENT, 
 
 warrant — oath — appraisement bill — form and what it 
 
 shall contain — to be filed, .... 313 
 
 (Forms of, Nos. 48, 49, 50.) 
 additional appraisement, - .... 314 
 
 to make out widow's award and award to children, 315, 317, 321 
 (See "Widow.) 
 
 compensation, - 316 
 
 ARBITRATION, 
 
 personal representative has no power to submit claims against 
 
 an estate to arbitration, 381 
 
 ASSETS, 
 
 (See Collection of Assets,) 408, 438 
 
 of partnership, how distributed, ...... 341 
 
 ATTACHMENT, 
 
 against personal representative, ...... 545 
 
 ATTESTATION, 
 
 clause to will, not necessary, 42, 170 
 
 its advantages, (n. 14, 15,) 42, 170 
 
 (Forms of, 210.) 
 must be by two or more credible witnesses, .... 42 
 must be in presence of testator, .... 42, 43 
 
 (See note to Form No. 6.) 
 must be had to alterations making additions to wills, or they 
 
 will not be valid, (notes.) 65 
 
 ATTESTING "WITNESS, 
 
 (See "Witness to Will.) 
 
 AUCTIONEER, 
 
 (SeeC-RiER), 338,339 
 
 AWARD, WIDOW'S, 
 
 (See Apbaiseks and Widows,) .... 317-327 a. 
 
366 INDEX. 
 
 B. 
 
 Section. 
 BEQUEST, 
 
 general and specific defined, ..... 5, 559 
 
 what may be bequeathed, ....-.-6 
 of personal property does not bar dower, (n. 1.) - - - 210 
 in favor of widow may be renounced — how other bequests 
 
 equalized, - - 531-532 
 
 to what extent liable for testators' debts, .... 560 
 (See Legacy.) 
 BELIEF, 
 
 attesting witnesses to will to swear they believed the testator 
 
 to be of sound mind and memory, 147 
 
 BILL IN CHANCERY, 
 
 to contest validity of a will, 177,199 
 
 who not concluded by it, ....... 177 
 
 issue how formed — forms, 178 
 
 party affirming validity of will opens and closes, - 179,182 
 the case of Rigg v. Wilton, 181-184 
 
 BLANKS, 
 
 in names, when supplied in wills. ..... 121 
 
 BLIND PERSONS, 
 
 capable of making wills, 11-15 
 
 BONA FIDE PURCHASER, 
 
 of assets not bound to see that the purchase money is prop- 
 erly applied, - ... 330 
 when the purchaser takes such assets in discharge of admin- 
 istrator's debt to him — the property may be pursued into 
 
 his hands, 330 
 
 BOND, 
 
 to refund — where required — suit on, ----- 551 
 in case of appeal, certiorari, writ of error — condition of, 
 
 etc., - - 578, 580 
 
 of administrator — penalty — security, 242 
 
 to be attested by the clerk and filed in his office - - - 243 
 (Form of, No. 18.) 
 of administrator to collect — to be filed with clerk and recorded, 229 
 
 (Form of, No. 12.) 
 of administrator with will annexed to be filed with clerk and re- 
 corded, - 223 
 
 strict conformity to the statute recommended, - - - 223 
 (Form of, No. 8.) 
 
INDEX 367 
 
 „~-. T ^ Section. 
 
 BOND— continued. 
 
 of public administrator, 249 
 
 (Form of, No. 18.) 
 
 neglect to give, vacates office, 249 
 
 of executor — amount of — security, 222,223 
 
 to be filed with, clerk and recorded 223 
 
 when security not required, 224 
 
 of non-resident executor settling an estate in this state — to give 
 bond of himself or other person — and principal and se- 
 curity to reside in this state, and be responsible (par. 2), 333 
 form of, in other cases, where no form is prescribed by 
 
 statute, - ... ... - 243 
 
 (See Form, No. 18.) 
 separate, may be taken if more than one appointed executor or 
 
 administrator, - - 244 
 
 two bonds from one administrator held valid — effect of, 262 
 
 may be sued on, against one or more of the obligors ... 245 
 
 when suit on may be in equity, - - ... - - 246 
 
 costs of prosecution, who liable for, 246 
 
 certified copy of, evidence, 245, 246 
 
 counter security of surety, - - 260 
 
 new bonds — condition, 261 
 
 (Form of new, No. 28.) 
 
 two new bonds valid, 262 
 
 suit on may be brought by administrator with will annexed 
 or de bonis ntm, if the executor or administrator is re- 
 moved, - - - 263 
 if the personal representative is guilty of laches in not 
 
 defending a suit, heirs have a remedy on bond, - 539 
 
 if he fails to pay over moneys when so ordered by the court, 
 
 may be sued on his bond, - .... 545 
 
 BOOKS, * 
 
 of account of deceased persons may be inspected by whom, 582 
 
 BROTHERS AND SISTERS, 
 
 include those of half-blood, 533 
 
 BURDEN OF PROOF, 
 
 on the party affirming validity of will, ... - 176, 179 
 
 BURIAL, 
 
 expense of— what included in, 376-378 
 
368 INDEX. 
 
 c. 
 
 Section. 
 CANCELLATION, 
 
 defined, 71 
 
 soundness of mind essential to validity, .... 72 
 
 CAVEAT EMPTOR, 
 
 applies to purchase of land at administrator's sale, - - 503 
 
 CHANGING WORDS, 
 
 in a will cannot be done except upon the clearest certainty, 92-96 
 
 CHATTELS REAL, 
 
 chattels real — estates for years are personal estate, - - 284 
 
 CHILD, 
 
 adopted, capable of inheritance, who from, - - - 531 
 
 illegitimate, inheritance from and by, - 531 
 
 posthumous, inherits as if born in lifetime of its father, - 531 
 
 effect of its birth on a will, ... ... 531 
 
 CHILDREN AND GRAND-CHILDREN, 
 
 of testator dying before he does, legacy or devise to, goes to 
 
 their heirs, - - - ... 531 
 
 word construed as " heirs," and as " grand-children," - - 96 
 
 CHILDREN, 
 
 of a void marriage have no right to administer on father's 
 
 estate, (n. 8.) ... 239 
 
 when entitled to the same amount of property as a widow, 317 
 
 CITATION, 
 
 to heirs and legal representatives, to be issued when nuncu- 
 pative will is proved, to show cause why letters should 
 not be granted, - ... 57 
 
 personal representative may have,against persons concealing, 
 
 embezzling, or having knowledge of property, etc., 212-214 
 
 personal representative may be cited to pay over to heir or 
 legatee, - - - - - - 541 
 
 may be cited to make settlement — proceedings, - - - 544 
 (Form of No. 92.) 
 
 personal representative of deceased partner may have sur- 
 viving partner cited to render account, ... 346 
 
 to show cause why letters shall not be revoked, - - . 255 
 
 CLAIMS, 
 
 jurisdiction of the county court not limited as to the amount of, 365 
 
 creditors may sue in the circuit court in the first instance, 380 
 
 against a partnership to be inventoried by surviving partners, 343, 346 
 
INDEX. 369' 
 
 CLAIMS — continued. 
 
 partnership estate primarily liable for, .... 841, 346 
 
 may be probated and allowed against the estate of deceased 
 
 partner — when, .... . 368 
 
 personal representative must interpose every lawful defense 
 
 of which he is apprised, - .... 381, 388 
 
 must be presented and allowed by court before they can be 
 
 lawfully paid, - .... . 381 
 
 personal representative cannnot submit a claim to arbitra- 
 tion, .... ... 3 81 
 
 term of court to be fixed upon, and notice given when claims 
 
 shall be presented for allowance, - - - 348 
 
 (Form of notice of. Form No. 44.) 
 to be produced in writing — sworn to by claimant — what 
 
 done if objected to — proceedings, .... 349 
 
 (Form of affidavit for. Form No. 56.) 
 delay to present, a suspicious circumstance, ... 350 
 
 if not presented at the time fixed by personal representative, 
 copy to be filed with clerk — summons — time of ser- 
 vice, etc., - - - ... 351 
 court may require claimant's oath that his claim is just and 
 
 unpaid — comments,- 353,354 
 
 judgments and certified copies of, to be taken as duly proven, 355 
 signature to written instruments signed by deceased, proof 
 
 of handwriting sufficient, 355 
 
 when not due may be allowed, 356 
 
 of creditor to whom a legacy has been given may be allowed, 111 
 of personal representative — proceedings — duty of court, - 362 
 for services rendered an estate at the instance of the personal 
 
 representative, is a claim against the estate, ... 370 
 for money paid by one interested, to discharge valid claims 
 
 against an estate — when to be allowed, ... 372 
 
 expenses of funeral a proper claim, .... 375, 376 
 
 monument, cost of a proper claim, 377 
 
 cost of mourning apparel not, - - 378 
 
 judgment against an administrator in another state no evi- 
 dence of indebtedness of the estate, ... 373, 374 
 an administrator who is an attorney, cannot charge for his 
 
 own professional services, .... . 371 
 
 Bet-off allowed against, - 356 
 
 defendant in a suit by personal representative may show a 
 set-off, and if it exceeds the demand against him, have 
 it allowed as a claim, - .... 379 
 
 if the judge is interested or a material witness, the case must 
 
 be sent to circuit court — proceedings, .... 363 
 24 
 
370 INDEX. 
 
 Siotiok. 
 CLAIMS — continued. 
 
 widow, heirs and others interested may object to allowance — 
 
 proceedings — appeal, r- - - - - - - - 366 
 
 minors may by their guardian object (note 10), - - - 366 
 equitable claims for money may be allowed, as debts owing by a 
 partnership of which deceased was a member — proceed- 
 ings — form of judgment, etc., ... 368,406 
 when not assignable by law, may be probated in the name 
 
 of the owner, - 369 
 
 to. be presented aud allowed within two years after date of let- 
 ters — effect if not, - .... 364 
 (See Special Limitations.) • 
 judgment allowing or rejecting final, unless reversed, or im- 
 peached for fraud, - - .... 365 
 its effect as against personal representative and heir — final 
 
 as to party taking appeal, 368 
 
 not conclusive against heir or devisee upon an application 
 
 to sell real estate to pay debts, .... 367, 483 
 allowance or rejection may be appealed from — time of ap- 
 peal — bond — trial on appeal de novo, .... 358 
 if deceased died after judgment rendered against him in a 
 court of record, execution may issue thereon — proceed- 
 ings under statute, - 359 
 
 it may be revived by seircfacias, 360 
 
 effect of revival of judgment as to lien, .... 361 
 
 how classified, - 383-385 
 
 due estate, sale and compounding of, 415-417 
 
 when due at a remote period may be sold or compounded, - 417 
 if no person shall administer on the estate within one year after 
 death, suit may be maintained against the heir or de- 
 visee, 584 
 
 extent of responsibility of heir or devisee, .... 584 
 in suits commenced against the heir, etc., the facts author- 
 izing to be set forth in the declaration, .... 584 
 CLERK, 
 
 at administrator's sale —compensation — duties, - - 338,339 
 CODICIL, 
 
 defined, 3 
 
 executed, attested and proved the same as wills, 48 
 
 (See note to Form No. 6.) 
 is to be regarded as part of the will, and both construed as 
 
 one instrument, - - - - 49 
 
 wh«n in conflict with the will the codicil prevails, - - 49 
 how it may modify will or revive its provisions, ... 50 
 may be tused to set up an informal paper as a will 50 
 
INDEX 371 
 
 COmCIL-continued. SEOTIOir- 
 
 law presumes them to be a part of the latest will, if there 
 
 are two, or that which is in existence and force, - - 51 
 sometimes operates independent of will, .... 52 
 
 prima facie dependent on will 52 
 
 presumption when will is destroyed, - . . . *. 52 
 
 probate of — duty of court, 146 
 
 quantum of proof necessary to allowance, - 147-152, 154, 171 
 
 (See note to Form No. 6.) 
 proof of, when sufficient proof of will, ... 53, 171 
 
 effect on the will, 54 
 
 later will sometimes treated as a codicil, .... 55 
 form of codicil, - .... 213 
 
 construction of, (See Construction of Wills.) 
 
 COLLECTION OF ASSETS, 408-128 
 
 luty of personal representative to reduce assets to money — 408 
 
 vigilance required, - 409-411 
 
 persons concealing, embezzling, etc. property, or having 
 
 knowledge of it, may be cited. - - 412-414 
 
 desperate claims, sale and compounding of, - - 415-117 
 
 collection of claims in other states .... 410-418 
 
 personal representative has no title to property of deceased 
 situated in another country, but has if it comes into this 
 state, ... . . 418 
 
 he' may receive payment of a debt due decedent from a non- 
 resident, - .... 419 
 he may sell and endorse notes belonging to the estate, - - 420 
 damages for causing death of the decedent, - 422, 429-432 
 judgments and decrees against others not to be delayed by 
 
 death of plaintiff — how execution obtained, - 423, 424 
 
 judgments may be revived by scire facias, - - 425 
 
 personal representative may buy real estate and chattels real, 
 
 when, and what to be done with such, - - 426, 427 
 
 administrator de bonis non may maintain an action against a 
 
 removed administrator, etc., - - - 428 
 
 waste by widow or her subsequent husband of personal 
 
 estate, - 433 
 
 COMMISSION, 
 
 of administrator to collect, 230 
 
 when forfeited, 232 
 
 of public administrators, - .... 250 
 
 personal representative, -------- 581 
 
 COMMISSIONERS TO ASSIGN DOWER, 
 (See Dowbb.) 
 
872 INDEX. 
 
 Section. 
 COMPENSATION, 
 
 of executors and administrators, (See Commission) - - 310 
 
 appraisers, clerk and crier, 338 
 
 an attorney who is administrator, not entitled to compensa- 
 tion for professional services, 581 
 
 COMPETENCY, 
 
 (See Witness to Will.) 
 CONCLUSIVENESS, 
 
 of probate of will by the county court in collateral actions, 172 
 CONTEMPT, 
 
 general power of the court to punish for, - 575 
 
 of personal representative, failing to settle, .... 263 
 
 CONSANGUINITY, 
 
 degrees of, how reckoned, (sec. 1, cl. 5.) ... 533 
 
 CONTRACT, 
 
 to convey land (See Specific Performance), - - - 436, 437a 
 money due deceased on a contract to convey land, is personal 
 
 estate, - 282, 516 
 
 CONSTRUCTION OF WILLS 
 
 rules of, less rigid than those applied to other legal instru- 
 ments, - - - 82 
 true aim to ascertain testator's intent as expressed in the will, 
 
 etc., 82. 
 
 Mr. Jarman's twenty-four rules, - - ... 83 
 
 wills of realty construed according to the law of the place 
 
 where situated, (Rule I.) - - - - 83 
 
 technical words not necessary to a disposition by will 
 
 (Rule II.) .... .... 83 
 
 construction of wills the same in law as in equity, (Rule III.) 83 
 from what time wills speak and when they operate, 
 
 (Rule IV.) - .... .83 
 
 what will disinherit an heir, (Rules V, VI.) 83 
 
 all parts to be construed with relation to each other — effect 
 
 where irreconcilable, (Rule VII.) - - 83 
 
 extrinsic evidence — when admissible, (Rules VIII, IX.) - 83 
 circumstances under which the will was made may be 
 
 looked into, (Rule X.) - . . 83 
 
 implication cannot control express provisions. (Rule XI.) 83 
 
 the reasons given cannot control express provisions, nor 
 ambiguous words, nor inaccurate recitals, etc., (Rule 
 
 XII.) . 83 
 
 inconvenience or absurdity, no ground for varying construc- 
 tion if terms are unambiguous, (Rule XIII) ... 83 
 
index 373 
 
 CONSTRUCTION OP -WlLLS-amttnued. Section. 
 
 if one construction will be -valid and the other not, that 
 
 which is valid will prevail, (Rule XIV.) .... 83 
 favor to the object not to influence the construction, (Rule 
 
 XV.) - ... 83 
 
 sense in which words are used, (Rule XVI.) - - - 83 
 
 technical words — presumption, etc., (Rule XVII.) - 83 
 
 words used more than once — how interpreted, (Rule XVIII.) 83 
 transposition of words, (Rule XIX.) ... - 83 
 
 miswritten words may be corrected, (Rule XX.) - 83 
 
 construction not to be varied by events subsequent to execu- 
 tion, (Rule XXI.) - .... 83 
 independent devises apparently connected, (Rule, XXII.) - 83 
 testator's intent to take effect as far as possible, (Rule XXIII.) 83 
 testator presumed to intend the will to take effect, Rule XXIV.) 83 
 words of equivocal meaning — how construed, 85, 86 
 expressed intent must pevail, - - - - 85, 86 
 general intent overrides technical rules, ... 85, 86 
 
 punctuation may be disregarded, 87 
 
 effect must be given to all the words, etc., - - - 88 
 
 all the papers constituting the testamentary act are to be 
 
 taken together, ... 89 
 
 foreign wills of real estate construed according to the place 
 where property is situated; those of personalty accord- 
 ing to the law of the testator's domicile, - 90 
 transposition of clauses allowable, ... 91 
 misdescription of property sometimes corrected ... 91 
 mistake in use of words may be corrected, ... 92 
 slight changes in words or their collocation allowable — 
 
 "and," "or," etc., - - ... 93-95 
 
 " surviving " used for " recovering," " their " for " her," 
 " children " for " heirs," " issue " for " children," and 
 " children " held to include grandchildren, - 96 
 
 repugnant words and clauses, ... 97, 98 
 
 supplying words omitted by mistake, 99 
 
 Sir James Wigram's rules, - - - - 107 
 
 executors, or others interested may file a bill in equity to 
 
 obtain a construction, 101 
 
 CONVEYANCES 
 
 parol, of crops valid, 290 
 
 of land, (See Specific Performance, Deed.) 
 
 CO-PARTNERSHIP, 
 
 (See Partnership.) 
 
 COPY 
 
 ' certified, of a will may be used as evidence. Stat. Tit. "Wills, 18 
 
374 INDEX. 
 
 Section. 
 CROPS GROWING, 
 
 when to be cultivated, gathered and sold, .... 337 
 parol conveyance of, valid, ....... 290 
 
 COUNTY CLERK, 
 
 his ministerial duties, ........ 576 
 
 COUNTY COURTS, 
 
 general powers of, enumerated, 575, 576 
 
 probate of wills, etc., jurisdiction of, ... 131-134,234 
 what facts must be shown, to confer jurisdiction, - - 138 
 
 jurisdiction of, not limited by. the amount of claim, - - 365 
 
 COUNTY JUDGE, 
 
 when a witness to a will — testimony to be taken in the circuit 
 
 court, ..... . . 156 
 
 if interested in a claim or a material witness, the case to be 
 
 sent to the circuit court, 363 
 
 COUNTY TREASURER, 
 
 (See Tbeastjby.) 
 
 COUNTER SECURITY, 
 
 to be given if surety fears danger of mismanagement by per- 
 sonal representative, 260 
 
 COVENANTS OF TITLE, 
 
 who may sue on, -- 297 
 
 by personal representative — consequences, .... 502 
 
 CREDITORS, 
 
 courts to order claims of, paid 538 
 
 CRIER, 
 
 may be employed at administator's sale — compensation — 
 
 duties, 338, 339 
 
 CRIMES, 
 
 which render a person infamous, 220 
 
 CROPS, 
 
 on rented land, whether owned by tenant and landlord jointly 
 
 or tenant exclusively. 293. 294 
 
 COSTS. 
 
 {See Compensation.) 
 
 in case of interpleader, 102 
 
 of contest of will, - - - - - - . 199 
 
 to be secured by non-resident executor or administrator, - 333 
 
 of prosecutions on personal representative's bonds, - - 245 
 
 of resignation to be paid by personal representative, - - 268 
 
 when payable by surviving partner, 347 
 
 on claim not presented by the creditor at the term fixed by 
 
 personal representative, ....... 352 
 
INDEX. 375 
 
 n/->nmn SECTION. 
 
 COSTS— continued. 
 
 where defense is made, may be apportioned, .... 352 
 judgment for costs against personal representative — what it 
 
 must direct, - 407 
 
 personal representative not liable for, 407 
 
 personal representative to pay costs of citation, - - - 544 
 costs of suits against estates declared to be insolvent, to be 
 
 paid by plaintiff, ... . -553 
 
 D. 
 
 DAMAGES, 
 
 for death caused by wrongful act, .... 422, 429-432 
 for laying out highway, 312 
 
 DEAF AND DUMB AND BLIND PEKSONS, 
 
 capacity to make wills, 14, 15 
 
 DEATH, 
 
 of testator to be proved, 137, 138 
 
 presumed after absence of seven years, 139 
 
 not presumed to have happened at any particular date, - 139 
 when the exact date necessary to be proved, - - - 140, 141 
 caused by wrongful act or neglect, suit for damages may be 
 
 brought for, 422,429-432 
 
 DEBT, 
 
 of executor to testator, not released by his appointment, - 110a 
 when deemed to be satisfied by legacy of the debtor to the 
 
 creditor, (n. 15,) 110 
 
 may be proved notwithstanding the legacy, .... Ill 
 
 DEBTS AND DEMANDS, 
 
 due the estate — sale and compounding of, ... 415-417 
 when due at a remote period may be sold or compounded, - 417 
 
 DECEASED WITNESS TO "WILL, 
 
 handwriting may be proved, 157 
 
 DECEASED PARTNER, 
 
 (See Surviving Partner and Partnenshtp Property.) 
 how interest in partnership property inventoried by personal 
 
 representative, 279 
 
 DECLARATIONS OP TESTATOR, 
 
 when they may be shown to explain intent of testamentary 
 
 provisions, - 104,108,112 
 
376 INDEX 
 
 Section. 
 DECLARATION OF TESTATOR— continued. 
 
 previous, when they may be shown to rebut the idea of un- 
 due influence, 198 
 
 may be proved to show intent in tearing, etc., a will, . - 113 
 
 may be proved to show fraud and undue influence, - 114-118 
 
 DEDIMUS, 
 
 to take testimony of absent witness to a will, - - - 155 
 
 (Form of, Form No. 3,) 
 
 (See note to Form No. 6, and Form.) 
 DEED, 
 
 covenant of warranty in, by personal representative, - - 502 
 who may sue on covenants of title, 297 
 
 DEFINITIONS, 1-5 
 
 DELIRIUM, 
 
 of disease, 22 
 
 from stimulus, ........... 23 
 
 no presumption of its continuance 24 
 
 DELUSION, 
 
 the distinguishing feature of insanity, 19 
 
 DESCENT OF PROPERTY, 533, 533 a. 
 
 statutory provisions, - 533 
 
 rights vested under former statutes not affected by act of 1872, 531 
 rights under the law of, vest at the moment of the death, - 533as 
 widow's award — when her rights vest (n. 5.), ... 533a 
 
 DESCENDED ESTATES, ' 
 
 (See Mabshalldtg of Assets.) 556 
 
 DESPERATE CLAIMS 
 
 (See Inventory.) 
 to be specified in the inventory, ...... 278 
 
 may be sold or compounded, 415, 416 
 
 DEVASTAVIT, 
 
 what is, 572-574 
 
 when personal representative deemed to have committed, 
 
 545, 546, 572-574 
 personal representative liable for, 572 
 
 DEVISE, 
 
 defined, 4,5 
 
 specific and residuary, defined 559 
 
 what are the subjects of devise, .... - 6 
 of land or interest therein to wife, bars dower unless other- 
 wise provided, (n. 1.) 210 
 
INDEX. 377 
 
 Section. 
 DEVISED ESTATE, 
 
 (See Mabshalling Assets.) 
 to what extent liable for testator's debts, /. • 560 
 
 DEVISEE, 
 
 beneficial, a competent attesting -witness to a will, but the de- 
 vise void — how far, - - - 46, 158 
 husband or wife of, competent but bequest void, - - 47 
 may be sued on a claim against the deceased if administra- 
 tion not begun within a year after death, ... 584 
 
 DEVISOR, 
 
 burden on land created by, to be paid out of personalty, 561, 562 
 
 DICTIONARY, 
 
 clause of the statute, 583 
 
 DISABILITY, 
 
 to make a will, (See Insane Persons, Idiots, Senile Dementia, 
 
 Delirium.) 
 to administer, (See Minority, Crimes, Non-residents.) 
 
 DISTRESS FOR RENT, 
 
 lies by the personal representative, 421 
 
 DISTRIBUTION, 
 
 (See Refunding! Bond.) 
 partial distribution may be ordered by the court, 
 
 534, 538, 541, 542, 546, 548 
 DOMICILE, 
 
 construction of wills of personality governed by the law of 
 
 testator's residence, - - - 90 
 
 law of descent of all property in Illinois is governed by the 
 
 law of this state, - - - - • - 533 
 
 DONATIO MORTIS CAUSA, 
 
 (See Gift Mobtis Causa.) 
 
 DOUBTFUL CLAIMS, 
 
 (See Inventoby.) 
 to be specified as doubtful in the inventory, ... 278 
 may be sold or compounded, 415, 416 
 
 DOWER, 
 
 defined as an interest in land alone (n. 1), - - - 210 
 
 is barred by devise of land or interest therein unless excepted 
 
 by will (n. 1), - - - - 215 
 
 widow may take as heir instead of dower, when (u. 1), 210, 514 
 if personal estate is bequeathed in lieu of one-half of real 
 
 estate and not of dower — the effect, .... 514 
 
S78 INDEX. 
 
 Section. 
 DOWER— continued. 
 
 personal estate bequeathed in lieu of both, .... 514 
 widow's right to, not affected by devise of all the property to 
 
 others, 514 
 
 widow's right to, paramount to rights of creditors, - 504 
 
 purchaser at administrator's sale takes subject to, - - 504 
 on petition for sale of lands to pay debts, may be assigned 
 
 by county courts, - - - - 512 
 
 statutory provisions declaring of what lands the widow shall 
 
 be endowed, - ... - - 513, 514 
 
 what estate the husband must have in the lands, - 515-517 
 
 where the widow takes one-half of the land as as an heir, 
 
 she takes for dower ono4hird of the remaining half, - 519 
 dower and homestead interest independent, ... 520 
 
 when not entitled to dower, 516 
 
 discretionary with personal representative to petition for the 
 
 assignment, ........ 522 
 
 (Form of Petition, No. 70.) 
 (Other Forms, 76-79.) 
 
 DRAWING WILLS, 
 
 comments on, .......... 209 
 
 DRUNKENNESS, 
 
 delirium, of incapacitates for making will, - - - 23, 34 
 
 E. 
 
 ELECTION, 
 
 widow may elect to take money in lieu of award, - - 325 
 widow may take property exempt in lieu of award, - - 323 
 widow may take dower in lieu of one-half of real estate in 
 
 certain cases (n. 1), - - - - - . . 210, 514 
 
 EMBLEMENTS, 
 
 defined — to whom they belong, 287,288 
 
 EQUITY, 
 
 jurisdiction of, where there is reasonable doubt of the proper 
 
 construction of a will, 101 
 
 of redemption — personal representative may redeem land 
 
 sold on execution against the deceased, .... 435 
 
 ERASURES IN A WILL, 
 
 (See Revocation, Obliteration.) 
 
INDEX 379 
 
 ERROR, SBCTI0S - 
 writs of, may be prosecuted, 580 
 
 ESCHEAT, 
 
 when property of an illegitimate person escheats, - - 531 
 
 ESTATES, 
 
 subject to testamentary disposition, 6, 7 
 
 administrator takes no estate or interest in land, - - 434, 435 
 what power over, an administrator has, - - . 435 
 
 estates for years belong to the personal representative, those 
 
 for an uncertain period belong to the heir, - - 284 
 
 EVIDEKCE, 
 
 on probate of a will, or codicil — what necessary in county court 
 
 and on appeal, - - 147, 155 
 
 (See note to Form No. 6.) 
 what allowable as to testator's sanity, in county court and on 
 
 appeal, ... . - 149, 166, 167, 183 
 
 what as to fraud, compulsion, etc., - 151, 154 
 
 what when attacked by bill in equity, - - - 181, 184, 201 
 burden on trial of the issue on testator's sanity is on the 
 
 party affirming the execution of the will, - - 170 
 
 testimony of subscribing witnesses prima facie evidence of 
 validity of will, - - - 179 
 
 when proof of sanity may be made by other than subscrib- 
 ing witnesses, - - - 181, 184 
 of testator's previous declarations may be given to rebut the 
 
 idea of undue influence, - - 193 
 
 proof of death is by affidavit, - - - - 138, 235 
 
 absence for seven years unheard of is presumptive evidence 
 
 of death, - - 139 
 
 death not presumed to have happened at any particular date, 139 
 to establish lost wills, - - 142-145 
 
 witnesses are required to testify to the mental condition of 
 
 the testator - - - 147, 149 
 
 if not signed by the testator in their presence it must be 
 
 shown to have been acknowledged in their presence, 162 
 in proof of claims, - - ... 349, 353-355 
 delay to present a claim for three years a suspicious circum- 
 stance, - - 350 
 
 certified copy of a bond, 245, 246 
 
 certified copy of will, Stat. Tit. Wills, 18. 
 if will is not authenticated it is not admissible for any pur- 
 pose as evidence, - 205 
 
 authenticated copy of inventory, evidence, - - - - 276 
 
380 INDEX 
 
 ! I 
 
 Section. 
 EXECUTION, 
 
 may be issued on judgments in favor of deceased, - 423, 425 
 personal representative may purchase real estate at sale on, 
 
 to secure debt due estate, 426 
 
 not to be awarded by judgment against the personal repre- 
 sentative, 401, 402, 407 
 
 EXECUTION OF WILLS, 
 (See Wills.) 
 
 forms of, 210,214 
 
 forms of attestation of, 210 
 
 EXECUTOR, 
 
 who may be appointed, .... 210, n. 6, 218 
 
 named in the will to cause the will to be proved, ... 135 
 penalty for failure, - - ... 135 
 
 person named as executor has a right to administer, when, 217 
 when he does not qualify, who entitled to administer, - - 216 
 if he refuses to act, that fact should appear in the 
 
 record, - - - - 217, 441 
 
 if one of several, refuses to qualify, those who do may make 
 
 a valid conveyance under a power contained in the will, 217 
 executor cannot qualify till he becomes of full age — admin- 
 istration to be granted during minority to another, 218 
 if one of several, dies or is disqualified or refuses, letters may 
 
 be granted to the others, - - 218 
 
 if sole dies, administrator with will annexed to be appointed, 264 
 if one of several dies or letters are revoked, the vacancy may 
 
 be filled, 265 
 
 Hie fact of minority or other disqualification should appear 
 
 in the record, ... ... 219 
 
 proof of testator's death, etc., to be made before letters testa- 
 mentary are granted, 221 
 
 (Form No. 1.) 
 letters testamentary to be issued to, ... - 216,218 
 
 to give bond, - - - . . ' . . . - 223 
 
 (Form No. 8.) 
 
 to take oath, 222 
 
 (Form No. 9.) 
 
 (Form of letters testamentary, No. 10.) 
 revocation of letters. (See Revocation). 
 if letters are revoked, he is liable to his successor on his 
 
 bond - - 266 
 
 bis power over testator's estate before probate of the will, - 226 
 is chargeable with real and personal estate which he does or 
 might receive, 275, 409-411 
 
INDEX. 381 
 
 „_,„^_„„„ Suction. 
 
 EXECUTOR— continued. 
 
 (See Collection of Assets, 408-428.) 
 jiis power to sell real estate under power given in a will, - 438 
 power of surviving executor in such cases, - . . 438 
 
 when power to sell real estate is implied, - . 439, 440 
 
 if he fails or refuses to qualify, and power is given in the 
 will to sell, his successor cannot sell without a decree 
 directing it, - . .... 440 
 
 what is a failure or refusal, - 441 
 
 may mortgage or lease real estate by order of the court, 442-444 
 suits between co-executors, . . 552 
 may file a bill in equity where doubts arise of the true con- 
 struction, -- 101 
 
 EXECTJTOKS. FOREIGN, 
 
 (See Administbatohs.) 
 
 EXTRINSIC EVIDENCE, 
 
 (See Evidence, Ambiguity, Construction of Wills.) 
 not admissible to alter, detract from or add to, the terms of a 
 
 will, - - 83, (Rule VIII.) 104, 106, (Prop. VI.) 107 
 
 but may be to rebut a resulting trust, - - - 106, 107 
 
 not admissible to vary the meaning of words, (Rule IX.) 83 
 
 testimony of scrivener not admissible to show what direc- 
 tions were given him by testator, except in case of latent 
 ambiguity, ... . 104 
 
 not admissible to supply omissions or defects in a will, 104 
 
 or to show testator's intentions, - 103 
 
 witnesses may be sworn to decipher writing and translate 
 
 wills, (Prop. IV.) . - - 107 
 
 may be employed to identify the object of testator's bounty, 
 and to determine the quantity of interest given and its 
 
 extent, (Prop. V.) 107, 120, 124 
 
 amissible in case of latent ambiguity, (Prop. VII) 107 
 
 so in some cases to show testator's interest in giving a 
 
 legacy, - - 100 
 so where there is a mistake in donee's name, but he is cor- 
 rectly described, 120 
 
 so where christian name of legatee is left blank, - - 121 
 
 but if name of any person as legatee is correctly given, not 
 
 admissible to show another was meant, - - 122 
 
 nor where neither name or description applies to claimant, 
 
 or description of subject matter, - - 123 
 
 admissible to show situation and circumstances of testator, 
 
 and reasonableness of different constructions, - - 124 
 fraud and undue influence may be established, by, - - ^201 
 
382 INDEX. 
 
 Sectioh. 
 EXTRINSIC EVIDENCE— continued. 
 
 declarations of testator not received to affect the construction of 
 
 the will, ...... 109 
 
 but may be to show his intention, .... - 110 
 
 made before and after making of the will may be shown in 
 
 regard to latent ambiguities, 112, 119 
 
 accompanying acts of revocation, showing his intent, admis- 
 sible, . -113 
 
 sometimes admissible to show fraud and undue influence, - 114 
 but not where the issue involves no question of testator's 
 
 mental capacity, 115 
 
 admissible to show his knowledge of the contents of the 
 
 will ; so are his letters, - .... 116 
 
 admissible to show his mind was enfeebled, - - 117- 
 
 when made many years before the will, admissible to show 
 he intended to exclude particular relations, and to rebut 
 the allegation of undue influence, - - - - - - 118 
 
 F. 
 
 PEAR, 
 
 its effect to avoid a testamentary act done under its influence, 190 
 will made under its influence, void 190 
 
 FEES, 
 
 of sheriff, 597 
 
 FELONY, 
 
 (See Crimes), 220 
 
 FIXTURES, 
 
 (See Iitventobt), 298-308 
 
 FOREIGN EXECUTORS AND ADMINISTRATORS, 
 (See Administkatobs), 
 
 FOREIGN WILLS, 
 
 effect of — statutory provisions, ..... 205 
 
 provisions for and effect of recording here, - - - 206, 208 
 
 FORFEITURE, 
 
 of commission by administrator to collect, .... 232 
 
 FORMS, 
 
 of pleadings in an issue out of chancery upon the validity 
 
 of a will, - - 178 
 
 of wills 210-212 
 
 _ codicil, 213 
 
INDEX 383 
 
 -n/^mrrt SECTION. 
 
 FORMS— continued. 
 
 nuncupative will, 214 
 
 attestation clauses, - - . . 210 
 
 (Bee note to Form No. 6.) 
 .of judgments allowing or rejecting claims against estates, 401, 407 
 
 no particular form necessary in county court, - 401 
 if the special limitation of two years applies — what it must 
 
 direct, 401 
 
 (Form No. 58.) 
 if rendered by any other than county court, must direct out 
 
 of what estate to be satisfied, - - - 402 
 the words inventoried and accounted for, construed, 403-405 
 judgment for debt owing by partnership of which deceased 
 
 was a member — what it must direct, .... 406 
 (Form No. 59.) 
 judgment for costs against an administrator, — what it must 
 
 direct, ... 407 
 
 No. 
 proof of death and petition for letters testamentary, No. 1 
 
 proof by subscribing witnesses of the execution of will, - 2 
 
 dedimus to prove will, - - 3 
 entry by clerk of circuit court showing proof made by a 
 
 subscribing witness who is a county judge, ... 4 
 
 refusal to accept executorship of a will, 5 
 
 clerk's entry of probate of will and grant of letters, 6 
 same where will directs that security be not required of ex- 
 
 cutor, - - - 7 
 
 bond for executors and administrators wiljji will annexed, - 8 
 
 oath of executor or administrator with will annexed, - 9 
 
 letters testamentary, 10 
 
 clerk's entry of order appointing administrator to collect, - 11 
 
 oath of administrator to collect, 11«. 
 
 bond of administrator to collect, - - - 12 
 
 letters of administration to collect, .... 13 
 
 petition for letters of administration, .... 14 
 
 relinquishment of right to administer, 15 
 
 clerk's entry of appointment of administrator, 16 
 
 administrator's oath, - 17 
 
 administrator's bond, 18 
 
 letters of administration, - - 19 
 
 official oath of public administrator, 20 
 
 petition by creditor for grant of letters to the public admin- 
 istrator, - - 21 
 
 petition by public administrator for letters, - 21 
 notice by public administrator of balance of estate in his 
 
 hands after two years, 22 
 
384 INDEX. 
 
 No. 
 FORMS— continued. 
 
 petition for revocation of letters, - - - - - 23 
 petition for revocation of letters, where the personal repre- 
 sentative becomes insane, etc., 24 
 
 affidavit showing personal representative has removed, or, is 
 
 about to remove from state, - ... 25 
 notice to such personal representative to appear and settle 
 
 his accounts, ... - ... 25a 
 petition by distributee, etc., to require personal representa- 
 tive to give other and sufficient security, - 26 
 petition by security to compel him to give counter security, 27 
 bond when additional security required, .... 28 
 petition by surety to be released from liability on bond, - 29 
 petition by personal representative for leave to resign, - . - 30 
 clerk's entry of order of revocation of letters, 31 
 clerk's entry of order of revocation of, when the personal 
 
 representative has become insane, 32 
 
 clerk's entry of order to give new bond, .... 33 
 
 inventory, 34 
 
 warrant to appraisers, 35 
 
 oath of appraisers, 36 
 
 appraisement bill, 37 
 
 widow's award, 38 
 
 widow's relinquishment and selection, 39 
 
 report that personal property does not exceed the amount of 
 
 widow's award, - ... . - 40 
 clerk's entry of order to deliver personal property to the 
 
 widow, - - ... 41 
 
 petition for leave to sell personal property, .... 42 
 
 clerk's entry of order to sell personal property, ... 43 
 
 notice of sale of personal property, 44 
 
 sale bill — public sale, 45 
 
 sale bill — private sale, -46 
 
 inventory of partnership property and liabilities, - - 47 
 warrant to appraisers of partnership property, 48 
 oath of appraisers of partnership property, 49 
 appraiser's bill — partnership property, .... 50 
 petition by administrator of deceased partner for citation of 
 surviving partner who is committing waste, to give se- 
 curity, etc., -51 
 
 order requiring surviving partner who has committed waste 
 
 of partnership property to give security, ... 52 
 clerk's entry of order appointing a receiver of partnership 
 
 property, 58 
 
 notice to present claims in county court, .... 54 
 
INDEX. 385 
 
 No 
 POEMS— continued. 
 
 proof publication of notice to present claims, ... 55 
 creditor's affidavit on a claim presented for allowance, - 56 
 clerk's entry of an order appointing a person to defend the 
 estate, when claim of the personal representative is pre- 
 sented, ... 57 
 
 judgment where the two-years' limitation applies, - 58 
 judgment in favor of partnership of which deceased was a 
 
 member, - .... - 59 
 complaint of wrongful possession, concealment or embezzle- 
 ment of goods of the estate, ... - 60 
 citation against person who has concealed, etc., 61 
 clerk's entry of proceedings under citation, - 63 
 suggestion that claims due estate are desperate, - 63 
 notice of application to sell or compound desperate claims, 64 
 clerk's entry — order to sell or compound desperate claims, 65 
 report of sale and compounding claims, .... 66 
 petition by puchaser of land for an order to convey, - 67 
 clerk's entry of order directing conveyance, - 68 
 account of personal estate- and debts to be filed preparatory 
 to filing petition for order to sell real estate, - 69 
 petition for order to sell real estate to pay debts, ... 70 
 return of service on summons, ... - 71 
 affidavit of non-residence of defendant .... 72 
 notice of petition for order to sell real estate, - - 73 
 printer's certificate of publication, ' .... 74 
 answer of guardian ad litem, ... - - 75 
 
 order of sale, - .-76 
 
 order where dower is assigned — appointment of commis- 
 sioners, - ..'.--- 76 
 oath of commissioners to assign dower, ... 77 
 report of commissioners to assign dower, .... 78 
 order approving report and ordering sale, ... - 79 
 notice of sale of real estate to pay debts, - 80 
 
 report of sale, <"• 
 
 order approving report of sale, - - - - 82 
 deed by personal representative of land sold under an order 
 
 of court, - 83 
 
 renunciation by widow or surviving husband of bequest in 
 
 will — or jointure, 8* 
 
 annual settlement, ° 5 
 
 order to notify heirs of final settlement, 86 
 
 notice to heirs of final settlement and proof of service, etc., 87 
 
 final settlement, 
 
 order of distribution, 89 
 
 25 
 
386 INDEX 
 
 No. 
 
 FORMS— continued. 
 
 order approving payment to distributees and of refunding 
 
 bonds, 90 
 
 order directing apportionment of moneys among creditors 
 
 pro rata, ... . . - 91 
 citation of personal representative to make settlement, 92 
 clerk's entry of proceedings on citation for eettlement, - 93 
 attachment for contempt, - - .... 94 
 clerk's entry of fine for contempt, - - - - 96 
 application for an attachment to compel the personal repre- 
 sentative to pay over money as ordered by the court, - 95 
 clerk's entry of the grant of attachment, - - 97 
 order to imprison administrator for contempt in not paying 
 
 over money, 98 
 
 commitment for contempt, 99 
 
 refunding bond, ... . . 100 
 
 application to court to apportion moneys to be refunded, - 101 
 
 clerk's entry of order of apportionment, - 102 
 
 clerk's entry of declaration that the estate is insolvent, - 103 
 order to deposit money of estate belonging to distributees, 
 
 with county treasurer, - - - - 104 
 order directing county treasurer to pay over money belong- 
 ing to distributees, 105 
 
 Section. 
 FRAUD, 
 
 in obtaining the execution of wills not definable — its 
 
 essence, - - - ... 186 
 
 often mixed with undue influence or other improper conduct, 187 
 
 statutory provisions concerning, - 200 
 
 fraud and undue influence distinguished, - 188, 189 
 
 may be established by parol evidence, 201 
 
 per se for a personal representative to purchase at his own 
 
 sale — effect, etc., 506, 510 
 
 FREEHOLD ESTATES, 
 
 go to the heir and not to the administrator, .... 284 
 
 FRUIT, 
 
 growing upon land, till severed, is party of the realty, - - 286 
 
 FUNERAL EXPENSES, 
 
 to be paid by personal representative, 376 
 
 expense of monument treated as part of, .... 377 
 
 mourning apparel not chargeable to estate, .... 378 
 
INDEX. 387 
 
 GIFT MORTIS CAUSA, Seotios. 
 
 defined * - 585 
 
 what is essential to it, ...... 585 
 
 of what it may consist, 585 
 
 always conditional 588 
 
 not a testamentary gift ...... 587 
 
 proof necessary to establish, 588 
 
 extent of the gift, 589 
 
 GRANDCHILD, 
 
 of testator dying before such testator, a legacy or devise to 
 
 him goes to his heirs, . 531 
 
 GROWING CROPS, 
 
 may be cultivated, gathered and sold by administrator when, 337 
 
 GUARDIAN, 
 
 may be appointed by will, 6, 212 
 
 statutory provisions, (note.) - .... 212 
 
 GUARDIAN AD LITEM, 
 
 on petition for sale of lands to pay debts, to be appointed 
 
 for minor defendants — his duties, - - - 476, 477 
 
 if none appointed, its effect, - ... 478 
 
 he must defend vigorously, 479 
 
 H. 
 
 HALF-BLOOD, 
 
 no distinction between kindred of whole and half-blood in 
 
 case of descent (cl. 5), ... 533 
 
 HEIRS, 
 
 may object to the allowance of a claim against the estate — 
 
 when, 366, 367, 483, 484 
 
 may be sued on a claim against the deceased, if administra- 
 tion not begun within a year of the death, 584 
 
 extent of liability — pleadings, - - - 584 
 
 the words " heirs " in a will read as " children," - - 96 
 
 HIGHWAY, 
 
 damages for laying out, whom they belong to, - - - 312 
 
388 index. 
 
 Section. 
 HOMESTEAD, 
 
 exemption, provisions of statute (n. 1), .... 210, 525 
 exempt from execution and the law of descent and devise, - 525 
 what constitutes a homestead, .... 526 
 
 against what it does not exist, .... 528, 529 
 
 sometimes an excuse for delaying to sell land to pay debts, - 523 
 right of widow in, paramount to that of creditors — right of 
 
 purchaser of, at administrator's sale, .... 504 
 
 HUSBAND, 
 
 not next of kin to wife (n. 10), 239 
 
 when an heir to his wife, 531, 533 
 
 may renounce provisions of wife's will in his favor — effect, 531 
 
 IDENTITY OF TESTATOR, 
 
 when to he proved and how, 161 
 
 IDIOTS, 
 
 denned — incapable of testamentary act, .... 26 
 
 not bound by the probate of the will, 177 
 
 ILLEGIBLE, 
 
 portions of a will made so by obliteration, treated as blanks, 65 
 ILLEGITIMATE CHILD, 
 
 the heir of its mother — who are its heirs, .... 531 
 
 when parents have intermarried, etc — its effect, - - - 531 
 IMBECILES, 
 
 (See Idiots.) 
 IMPROPER INFLUENCE, 
 
 (See Undue Influence.) " 
 INCUMBRANCES, 
 
 of real estate, when to be discharged by devisee (n. 9), - 210 
 (See Marshalling Assets.) 
 INFLUENCE, 
 
 over a testator — what permissible, .... 188,189 
 
 INFAMOUS, 
 
 crimes which render a person so, and disqualify him to be- 
 come executor, - - 218, 220 
 
 INFANTS, 
 
 incapable of making a will, 8 
 
 ratification of will after majority, 10 
 
IKDEX 389 
 
 Section. 
 INFANTS— continued. 
 
 ■when they become of full age, 9 
 
 not bound by probate of the will, - - - 177 
 
 if named as executor, cannot serve till of full age, - 218 
 
 the father may appoint a testamentary guardian — mother 
 
 cannot be deprived of custody, 6 
 
 likewise the mother may appoint, if sole, 6 
 
 to have guardian ad litem appointed to defend petition for 
 
 sale of land — his duties, - - - 476, 477 
 
 statute of limitations does not run against claims of, against 
 
 estates, - - 389 
 
 INSANITY, 
 
 defined, -- - - 18 
 
 extent of, necessary to avoid the will (n.) - - 18, 20, 33 
 partial or general, once established, its continuance presumed 21 
 
 lucid intervals, - 25 
 
 partial, or monomania — its effect, ..... 20 
 
 INSANE PERSONS, 
 
 (See InsanitT.) 
 incapable of making valid wills, . - - - - - 8, 20 
 will of an insane person sustained (n. 18.), - - 33 
 
 not bound by the probate of, till two years after restoration, 177 
 statute of limitations as applied to them, ... 177, 389 
 
 INSOLVENT, 
 
 estate — when to be so declared, - - - 553 
 
 plaintiffs thereafter suing personal representative, to pay 
 
 costs, - - - 553 
 
 persons, claims of estate against, may be ordered sold or 
 
 compounded, 415, 416 
 
 INTENTION, 
 
 (See Construction of wills— Extrinsic Evidence.) 
 
 INTEREST, 
 
 to be paid by personal representative— when, - - 544a. 
 
 INTERLINEATION, 
 
 (See Revocation of wills.) 
 
 INTERPLEADER, 
 
 bill of, when the construction of will is in doubt, - . 101 
 
 INTESTATE ESTATE, 
 
 (See Lapsed Legacies.) 
 when devised or bequeathed estate becomes intestate or resid- 
 uary estate, - - - 81,531,565,566,567,569,571 
 how it descends, 533 
 
390 INDEX. 
 
 Seotiok. 
 INVENTORY, 
 
 personal representative to make and file an. inventory •within 
 
 three months, -- .....-- 272 
 
 what it shall contain — statutory provisions, ... 272 
 
 additional inventory to be made and filed, .... 273 
 
 authenticated copy of, evidence, ...... 276 
 
 prima facie evidence of what came to personal representa- 
 tive's hand, 277 
 
 must show whether credits are good, doubtful or bad, - - 278 
 interest of deceased partner — how inventoried, - 279 
 property deposited with another for safe custody to be in- 
 ventoried, - .... 280 
 
 personal property of deceased fraudulently conveyed to be 
 
 inventoried, .... .... 280 
 
 not so real property, - ...... 281 
 
 money due deceased on sale of land, are personal estate, - 282 
 
 why real estate to be inventoried, - ... 283 
 
 chattels real, estates for years, are personal estate, - - 284 
 
 estates for life or an uncertain period are real estate, - - 284 
 
 interest of mortgagee is personal estate, .... 285 
 
 excess of money on sale of mortgage may or may not be, - 285 
 growing fruit and fruit trees, real estate, unless severed by 
 
 valid conveyance, 286 
 
 emblements — defined, 287 
 
 who the owner — his right to occupy land, harvest, and culti- 
 vate, - - - --. 288 
 conveyance of land passes vendor's interest in the crops ; so 
 
 does a devise, unless excepted, 289 
 
 parol conveyance of crops valid, 290 
 
 rents to be inventoried, - 272 
 
 rent of land, to whom it belongs, 292 
 
 crops, whether owned by tenant and landlord jointly, or by 
 
 tenant exclusively, - - .... 293 
 
 when rent is due, - .... 294 
 
 care to be observed in making inventory of rents, - - 295 
 actions of contract survive the death of either party, but for 
 
 breach of marriage contract does not, - ■ - - 296 
 
 right of action for breach of covenants of title, etc., - - 297 
 fixtures to buildings, etc., .... - . 298-308 
 machinery, ....----- 304, 305 
 
 trade fixtures, - .... - 306 
 
 rails, when personalty and when realty, .... 307 
 if attached to real estate by purchaser under a contract to 
 
 convey, to whom they belong - - 308 
 nanuities to be inventoried, - .... 309, 272 
 
INDEX. 391 
 
 Section. 
 INVENTORY— continued. 
 
 shares in corporations personalty, .... 310 
 
 interest in literary property and patent rights, are personalty, 31 1 
 damages for land taken for public use, to whom they belong, 312 
 
 ISSUE OUT OF. CHANCERY, 
 
 to contest validity of will, 177-180 
 
 pleadings in, . 178 
 
 party affirming validity of will to open and close, - - 179 
 
 ISSUE. 
 
 the word children heid equivalent to, 96 
 
 JOINT EXECUTORS AND ADMINISTRATORS, 
 
 separate or joint bonds maybe taken from, .... 344 
 
 JOINTURE, 
 
 may be renounced by widow, (n. 1.) 210 
 
 form of renunciation of, (Form No. 84.) 
 
 JUDGMENT, 
 
 of county court allowing or rejecting a claim against an 
 
 estate — when final, 365 
 
 against deceased in a court of record — execution thereon 
 
 after death — proceedings, 359 
 
 may be revived by scire facias after death of either party, 360, 425 
 effect of revival with respect to heirs, - - 361 
 
 certified copy of record of— evidence of debt, - 355 
 
 execution on judgment in favor of deceased— how obtained, 423 
 personal representative may bid off real estate to satisfy 
 judgment in favor of estate, . - - 426 
 
 JUDICIAL POWERS OF COUNTY COURTS, 
 
 general powers, - ... 575, 576 
 
 powers conferred by the constitution over probate of wills 
 
 and settlement of estates, - - - 132 
 
 JURISDICTION OF COUNTY COURTS, 
 
 in what county wills to be probated, ... - 134 
 
 what facts must exist to confer jurisdiction of 'probate of will, 138 
 in what county administration to be granted, - - 234 
 
 what facts must exist to confer jurisdiction of administra- 
 tion, - - ... 234,235 
 to allow or reject claims against estates, ... 348 
 not exclusive over claims against estates, - - - - 380 
 
392 INDEX. 
 
 K. 
 
 Section. 
 
 KIN, 
 
 who are next of, 531 
 
 no distinction between those of whole and half-blood in case 
 
 of descent, (cl. 5.) 533 
 
 L. 
 
 LAND, 
 
 (See Beal Estate.) 
 
 LAPSED LEGACY, 565, 571 
 
 denned, - - - - - __« - - - - - 565 
 (See Legacy.) 
 
 LAPSE OP TIME, 
 
 when a bar, (See Limitations.) 
 LAST ILLNESS, 
 
 (See Gift Mortis Causa.) 
 expenses of, classified as third class of claims, ... 383 
 LAST WILL, 
 
 (See Will — Pkobate of Wills.) 
 LATENT AMBIGUITY, 
 
 (See Ambiguity.) 
 
 LEASE, 
 
 for years, to be inventoried and sold as personal property, - 284 
 for life or an uncertain period, to be inventoried as real 
 
 estate, and goes to the heir, ... 284 
 
 of real estate by executor may be authorized by court, - - 442 
 
 LEGACY 
 
 general and specific defined, 5, 559 
 
 vests at death of testator, unless otherwise provided in the 
 
 will, 533 
 
 (See Intestate Estate.) 
 when bequeathed estate becomes intestate or residuary 
 
 estate, - 81, 531, 565-567, 569, 571 
 
 if given to a creditor, when deemed a satisfaction of the debt 110 
 creditor who is a legatee may have his claim allowed, - 111 
 
 order of court to pay legacy, 548 
 
 specific to be first paid, 548 
 
INDEX 393 
 
 __,_ . __ Section. 
 
 LEGACY— continued. 
 
 when to be refunded by legatee, - 551 
 
 lapses unless given to children or grandchildren if legatee 
 
 dies before testator unless otherwise provided, 210, n. 3, 566 
 in favor of widow may be renounced by her — effect on 
 
 other legacies, ... . 531, 532 
 
 when a legacy lapses, . . 567, 570 
 
 where a lapsed legacy goes, - - - 531, 565, 566, 571 
 
 LEGATEE, 
 
 attesting a will is a competent witness, but legacy to him 
 
 void, with an exception, ... 46, 158 
 
 husband or wife of, competent, but bequest void, etc., - - 47 
 
 to give refunding bond, 549 
 
 when to refund legacy, -' ...... 551 
 
 LETTEKS OF ADMINISTRATION, 
 
 lapse of seven years after death, a bar to granting, - - 236 
 who entitled to, .... 237, (notes, 7, 8, 10,) 239 
 
 promisee in contract of marriage not entitled to, - 239 
 
 order of preference, - - 239 
 
 if irregularly granted Cannot be questioned collaterally, (n. 6) 221 
 nor on writ of error to supreme court, (n. 6) ... 221 
 
 (Form of petition for. Form No. 14.) 
 
 (Form of clerk's entry of grant of. Form No. 16.) 
 
 (Form of. Form No. 19.) 
 when they may be revoked (See Revelation), 
 petition and clerk's entry iD case of revocation of, - - 253 
 
 (Forms No. 23, 24, 31.) 
 to be revoked if will produced and probated, - 254 
 
 acts done by the administrator in the meantime, valid, - 254 
 of public administrator, 
 
 (Petitions for, Form No. 21.) 
 
 (Form of, Form No. 19.) 
 of administration de bonis non, and with will annexed, (See 
 Administrator.) 
 
 (Forms of, Forms No. 19, 13.) 
 
 LETTERS TESTAMENTARY, 
 (See Executor.) 
 to whom to be issued, ....... 216-220 
 
 (Form of, Form No. 10.) 
 
 LIABILITIES, 
 
 partnership and others, (See Claims.) 
 
 LIEN, 
 
 of creditors on lands of deceased, 445, 448 
 
394 INDEX 
 
 Section. 
 LIEN — continued. 
 
 how long it continues, 445, 448 
 
 of judgment, how enforced, 423 
 
 LIFE, 
 
 presumption as to its continuance, .... 139, 140 
 
 LIMITATIONS — GENERAL, - .... 398h100 
 
 lapse of seven years from death a har to grant of letters of 
 
 administration, - - 2*36 
 
 none in case of wills, (n. 1.) - - - 135 
 
 bill in chancery may he filed to set aside the probate of a 
 
 will within three years, - - ... 17g 
 
 saving to persons under disability, 176 
 
 general statute of limitations, .... 398 
 
 set-off not barred where the claim of the personal represent- 
 ative is not barred, ... ... 400 
 
 two kinds of, special and general, - - 387 
 
 duty of personal representative to interpose the bar of, - 386 
 if not done by him heirs may set it up on settlement, - 539 
 
 special limitation of two years, 386-397 
 
 its effect as to property liable to satisfy claims, - - 389, 392 
 runs from the date of letters, - . ... 390 
 
 when it once begins to run, continues so to do, ... 390 
 a case stated, - - - - 391 
 
 filing a claim in court on the day fixed by personal repre- 
 sentative, prevents the bar — cases stated, - - - 393 
 claimant entitled to judgment if claim was not presented 
 
 within two years, and is not otherwise barred, - - 394 
 claims not accruing till after two years, subject to special 
 
 limitation, ... .... 395 
 
 illustrative cases, - 396 
 
 assets of the estate may be followed into the hands of the 
 heirs, where the special limitation applies — case of 
 
 Eyan v. Jones, 397 
 
 saving to persons under disability, .... 389 
 
 of commencement of suit to set aside a purchase of land by 
 
 an administrator at his own sale, ... 508 
 
 LOST WILL, 
 
 proof necessary to show loss and to establish it, - - 142-144 
 
 LUCID INTERVALS, 25 
 
 LUNACY, 
 
 (See Insanity.) 
 
index. 395. 
 
 M. 
 
 MACHINERY, SK0TI0N - 
 
 (See Fixtures — Inventoby.) 
 MAJORITY, 
 
 when persons arrive at, ••-■....9 
 MARRIAGE, 
 
 revokes prior will, 60 
 
 MARRIAGE SETTLEMENT, 
 
 ■widow may elect whether she will accept its provisions or 
 
 take dower, 514 
 
 MARRIED WOMAN, 
 
 may be appointed executrix, (n. 6), .... 210 
 
 and her husband may give bond with her, (n. 6), 210 
 
 statute of limitations does not run against, during marriage. 
 (See Limitations.) 
 MARSHALLING ASSETS, 
 
 the order of liability of decedent's estate for the payment of 
 
 debts, - - - - - 555, 556 
 
 the order may be varied by testators, - 557 
 
 debt against an insolvent estate insufficiently secured by 
 mortgage, creditor entitled to pro rata share on the por- 
 tion only which is not secured,- 558 
 estates purchased by testator subject to incumbrances — un- 
 less the will otherwise directs, to be paid by devisee, 561, 562 
 not so if incumbrance was created by testator, 561, 562 
 if debt is paid out of a fund not primarily liable, the injured 
 
 party may be subrogated to the rights of the creditor 563 
 where the widow's own estate has been mortgaged to secure 
 husband's debt, and she has paid it, she is a creditor of 
 the estate, - - - 564 
 
 MENTAL CAPACITY, 
 
 (See Idiots, Insanity, Insane Persons, Senile Dementia.) 
 to make will, - 26-31 
 
 MINORS, 
 
 when they arrive at majority, - ... 9 
 
 incapable of making wills, 8, 10 
 
 over eighteen years of age may be appointed executors, (n, 6), 210 
 but cannot become qualified till of full age, (n. 6), - 210 
 
 not bound by probate of will, etc., - - - 177 
 
 statute of limitations does not'run against, - - 389 
 
INDEX 
 
 Section. 
 MINORS— continued. 
 
 (See Limitations.) 
 
 may by guardian object to allowance of a claim against the 
 
 estate, (n 10), - 366 
 
 MINISTERIAL POWERS, 
 
 of county courts, 172, 575 
 
 of clerk of county court, 172, 575, 576 
 
 MISTAKE, 
 
 powers of courts of equity to correct, .... 105 
 
 when mistakes may and [may not be corrected by courts of 
 
 equity, 125, 129 
 
 MONET, 
 
 to be inventoried, 272 
 
 when treated as land, - 285 
 
 due deceased on a contract to covey land is personal estate — 
 
 effect on dower interest, 282, 516 
 
 MONOMANIA, 
 
 when it avoids the testmentary act, 20 
 
 {See Insanity.) 
 MONUMENT, 
 
 cost of, a part of funeral expenses, 377 
 
 MORTGAGE, 
 
 of real estate by executors, may be ordered by court, - - 442 
 foreclosure of, - . . 443, 444 
 
 when executed by former owner, out of what assets of testator 
 
 to be paid, 561, 562 
 
 (See Marshalling Assets.) 
 MOTHER, 
 
 when sole, may appoint a testamentary guardian for her 
 
 minor children, - .... 6 
 
 has a right to the custody of her children notwithstanding 
 
 the father has appointed a testamentary guardian, . 6 
 as next of kin, 
 (See Descent.) 
 
 MOURNING APPAREL, 
 
 (See Funebal.) 
 
INDEX 397 
 
 N. 
 
 ■** . ~~ Sionoir. 
 
 NAME, 
 
 blank in, in will, when supplied, 121 
 
 when mistake in, can and cannot be shown, - - - 120, 122 
 
 NEWSPAPER, 
 
 (See Notice,) 
 
 NEXT OF KIN, 
 
 who are, 531 
 
 when entitled to administer, 237, 239 
 
 husband and wife not to each other (n. 10), - 239 
 
 relinquishment of prior right of, to administer before others 
 
 can be appointed, 240 
 
 NON COMPOS MENTIS, 
 
 not bound by probate of will, 177 
 
 NON-RESIDENT, 
 
 attesting witness to will — testimony to be taken under a 
 
 dedimus, .... 155 
 
 cannot be appointed administrator, - - 237 
 
 defendant — how notified of pendency of application for an 
 
 order to sell land, - - - 468-475 
 
 cannot be appointed administrator, 237 
 
 intestate, when administration to be granted to public ad- 
 ministrator, .... 237 
 executor or administrator having become non-resident, his 
 
 letters may be revoked, 258a 
 
 NOTICE, 
 
 of application to probate will, not required, - - 172 
 
 to present claims against the estate for allowance, - 328, 838 
 of pendency of application for order to sell real estate, 
 
 467, 475, 496 
 
 (Eorm of, Form No. 73.) 
 
 to be published in nearest newspaper, - - - - 468 
 
 what is nearest newspaper, ■ 469 
 
 the length of time to be published, - - - - 470 
 
 printer's certificate evidence — and what it must show, 471 
 
 (Eorm No. 74.) 
 
 date of paper deemed the date of publication, - 472 
 
 defective certificate cured by recital in order of sale, - - 473 
 
 cases relating to form of, cited, .... 474 
 
 appearance and defense cures defects in, .... 475 
 
398 INDEX. 
 
 Seotioit. 
 NOTICE— continued. 
 
 of sale of personal property, 328 
 
 (Form No. 44.) 
 of sale of real estate under an order, *• - - 497, 499 
 
 (Form No. 73.) 
 of application to sell or cornpound desperate claims, - - 415 
 
 (Form No. 64.) 
 
 NUNCUPATIVE WILL, 
 
 how made and proved — statutory provisions, 56 
 
 what to be done by witnesses, ... 58 
 citation to issue to heirs, etc., when it is proved, to show 
 
 cause why letters should not be granted, 57 
 
 the case of Arnett v. Arnett 57 
 
 form of, 214 
 
 0. 
 
 OATH, 
 
 of administrator, 241 
 
 (Form No. 17.) 
 
 of administrator to collect, 229 
 
 (Form No. 11.) 
 
 of administrator, with will annexed 222 
 
 (Form No. 9.) 
 
 of executor, 222 
 
 (Form No. 9.) 
 OCCUPANTS, 
 
 actual, of real estate of deceased to be made defendants to 
 
 petition for an order to sell real estate, .... 453 
 
 OFFICIAL OATH, 
 
 of public administrator, ........ 247 
 
 (Form No. 20.) 
 OBLITERATION, 
 
 (See Revocation.) 
 as a means of revocation of will, - - . - . . , 60 
 partial, does not amount to revocation, .... 63, 64 
 
 must be made illegible to produce that effect, ... 65 
 OPINION, 
 
 of attesting witnesses to will. 
 (See Belief.) 
 
 ORAL EVIDENCE, 
 
 (See Evidence.) 
 
index 399 
 
 PAPERS, SB0TIOK - 
 
 the will, codicil and all papers referred to so as to be made 
 
 a part of them, are to he construed together, ... 89 
 
 PARENT, 
 
 adopted, does not inherit from adopted child, - . -533 
 adopted child inherits from adopted parent, ... 533 
 
 PAROL EVIDENCE, 
 
 (See Evidence.) 
 
 PARTIAL INSANITY, 
 (See Insanity.) 
 
 PARTNERSHIP PROPERTY, 
 
 rights of surviving partner in, 340 
 
 abuse or misapplication of, by surviving partner, remedy in 
 
 equity, - 340 
 
 primary fund for payment of partnership debts, 341 
 
 surviving partner to account to personal representative of 
 
 deceased partner for remainder, after payment of debts, 341 
 
 how accounts taken and from what time, - 343 
 
 surviving partner to inventory partnership estate, and also liabil- 
 ities, and cause estate to be appraised — by whom to be 
 appraised, 279, 343, 344 
 
 form of inventory of, (Form No. 47.) 
 
 form of appraisment bill of, (Form No. 50), 
 
 inventory, appraisment bill and list of liabilities to be re- 
 turned under oath to county court, - 345 
 
 to what county court returned, - 345 
 
 surviving partner to continue in possession of partnership 
 effects — ■ pay debts — settle business — account with per- 
 sonal representative, etc., 346 
 
 county court may order an account and cite surviving part- 
 ner, 346 
 
 surviving partner may be required to account and to give 
 security for faithful settlement, etc. — maybe enforced 
 by attachment, and receiver appointed — costs, etc., 347 
 
 PAYMENT, 
 
 of debt owing to deceased in one state, to personal represen- 
 tative appointed in another valid, 419 
 
400 INDEX 
 
 Seotiok. 
 PENALTY, 
 
 executor liable to, for failure to probate will, - 135 
 
 person having custody of will liable to, for failure to deliver 
 
 will to county court, 136 
 
 for destroying or secreting will, 136 
 
 for failure by administrator to collect to deliver property to 
 
 executor or administrator, 333 
 
 of bonds, (See Bonds.) 
 
 for not complying with the statute in making sale of real 
 
 estate, - 497 
 
 PENAL STATUTES, 
 
 actions on, do not survive, (n. 4), 398 
 
 PERSONAL PROPERTY, 
 
 (See Inventory. Sale op Personal Property. Wid- 
 ow's Award.) 
 primary fund for payment of debts, .... 556, 557 
 
 PERSONAL REPRESENTATIVE, 
 
 may redeem land sold on judgment or decree against 
 decedent, - - 435 
 
 PETITION, 
 
 for letters testamentary, (Form No. 1.) 
 
 for letters of administration, (Form No. 14.) 
 
 of public administrator for letters, (Form No. 31.) 
 
 for revocation of letters of administration, (Form No. 33.) 
 
 generally advisable to file one for revocation, - - 358 
 
 to revoke letters where security has become insufficient. 359, 260 
 
 by distributee to compel personal representative to give other 
 
 and sufficient security, (Form No. 26.) 
 by security to compel him to give counter security, (Form No. 27.) 
 by surety to be released from liability on bond, (Form No. 29.) 
 by personal representative, for leave to resign, (Form No. 30.) 
 for order to sell personal property, ... 43 
 
 petition by administrator of deceased partner for citation of 
 
 surviving partner, etc., to give security, (Form No. 51.) 
 by purchaser of real estate for an order to convey, (Form No. 67.) 
 for an order to sell real estate to pay debts, (Form No. 70.) 
 by an executor for leave to lease or mortgage lands, - 443 
 
 PLEADINGS, 
 
 in an issue out of chancery upon the validity of a will, - 178 
 
 POSTHUMOUS CHILD, 
 
 rights to estate the same as if born during the life of the 
 
 father, 533 
 
INDEX. 401 
 
 Section". 
 POSSESSION, 
 
 (See Occupants.) 
 
 essential to a gift mortis causa, (cl. 3) 585 
 
 POWER OF SALE OP REAL ESTATE, 
 
 may be given in a will, - - 210 
 
 recognized by statute, and sales declared valid, ... 438 
 •when implied from other powers given by the will, - - 439 
 when not implied, 440 
 
 PRESENCE OP TESTATOR, 
 
 signing a will by another for testator, to be done in his pres- 
 ence, - ... 34,36,39,41,162,163 
 witnesses to sign in his presence, - - 34, 36, 43, 43, 164 
 
 PRESUMPTION, 
 
 insanity having been established is presumed to continue, 21 
 incapacity from delirium of disease or stimulus not presumed 
 
 to continue, ....... •. -24 
 
 PROBATE OP "WILLS, 
 (See Wills.) 
 conclusiveness in, collateral actions of the order of county 
 
 court admitting to probate, 172 
 
 PROPERTY, 
 
 (See Intbntoet.) 
 testator's right to dispose of by will declared, ... 6 
 PUBLIC ADMINISTRATOR, . 
 (See Administkatok.) 
 
 PUBLICATION, 
 
 of will not required, - - ......35 
 
 (See 155, and note to Form No. 6.) 
 
 PUNCTUATION, 
 
 of will may be disregarded in construing it, ... 87 
 
 PURCHASER, 
 
 personal representative has no right to be, - - 506-510 
 
 of land at sale by personal representative takes the title at 
 
 his own risk, 503 
 
 takes subject to widow's dower, 504 
 
 PURCHASE MONET, 
 
 sale of land to pay, 450 
 
 on sale of personal property — how secured, - - - 328 
 
 on sale of real estate to pay debts— how secured, - . 492 
 (See Form No. 76.); 
 36 
 
402 INDEX. 
 
 E. 
 
 * Section. 
 
 rails, 
 
 whether realty or personalty, ....... 307 
 
 REAL ESTATE, 
 
 rights of personal representative in, enumerated, - - 434, 435 
 
 waste of, by widow, 433 
 
 to be inventoried, 272 
 
 estates for life or for an uncertain period are regarded as real 
 
 estate, and to be so inventoried, - - - 284 
 surplus of money made by a sale on a mortgage after mort- 
 gagor's death, is real estate, 285 
 
 contracts by decedent to convey — specific performance of, 436, 437 
 sale of, to pay debt for purchase money, - - 450, 451 
 
 sale under a power contained in a will, - - 438-441 
 
 lease and mortgage of, by executor to pay debts, - 442, 443 
 
 sale by order of court to pay debts generally, - - 449-511 
 (See Sale of Real Estate.) 
 
 RECEIVER, 
 
 of property of a partnership of which deceased was a mem- 
 ber — when to be appointed, - ... 347 
 form of petition for, and appointment of, (Forms' Nos. 51, 53.) 
 
 REFUNDING BOND, 
 (See Bond.) 
 
 REFUSAL, 
 
 to accept executorship should appear of record, ... 217 
 how made known to the court, 441 
 
 RELINQUISHMENT, 
 
 of prior right to administrator, 240 
 
 form of, (Form No. 15.) 
 RENUNCIATION, 
 
 by widow, of legacy or devise or jointure, (n. 1), - - - 210 
 
 (Stat, title Dower, § 9.) 
 by widow or surviving husband, of provisions in her or his 
 
 favor in will, 531,532 
 
 RENT, 
 
 to be inventoried, ..... 272 
 when it goes to the heir and when to the personal represen- 
 tative, - 292 
 
 when it is due, - 294 
 
 Ilow to be specified in inventory, 205 
 
INDEX. 403 
 
 RmT-eontinued. Seotiok - 
 
 when rent exists in the crop itself, 293, 294 
 
 distress for, lies by personal representative, - - - - 421 
 
 of real estate purchased on debt due estate, is assets, - - 427 
 
 REPUBLICATION OF WILL, 
 
 after majority, etc., S^ 50 
 
 REPUGNANCY, 
 
 in provisions of will, - - - . - - 97, 98 
 
 when repugnant words will be rejected, ... 97, 98 
 
 RESIDUARY, 
 
 devise and legacy defined, . . -559 
 
 if both specific, both must contribute to payment of debts, 
 
 pro rata, .... 560 
 
 as between residuary and specific, the former is primarily 
 
 liable, 560 
 
 RESIDENT, 
 
 (See Non-residbnt.) 
 
 RESIGNATION, 
 
 personal representative may resign, 268 
 
 acceptance of amounts to a revocation of letters, - - 269 
 
 RESULTING TRUST, 
 
 may be rebutted by parol evidence, 106 
 
 REVOCATION OP LETTERS, 
 
 letters of administration procured by fraudulent pretense 
 
 may be revoked, - - 239, 253 
 
 of public administrator, if persons having preference apply, 250 
 petition for and clerk's entry, (Forms No. 23, 31, 32.) - 253 
 
 if a will is produced and proved, - - 254 
 
 letters testamentary to be revoked if probate of will or codicil 
 
 set aside, also letters testamentary or of administration 
 
 for insanity, drunkness, infamous crime, waste, etc., - 255 
 person holding letters to be cited to show cause why they 
 
 shall not be revoked, - - - 255 
 
 refusal to perform trust, or an unauthorized preference in 
 
 payment of demands, cause for revocation, - - - 256 
 removing property out of the state, cause for, - 257 
 
 suit on bond to be instituted, - - 257 
 
 removal of personal representative from state, a cause for. 258 a. 
 notice to appear and settle in such case, (Form No. 25 %) 258 a. 
 failure to give other and sufficient security when applied for 
 
 by person entitled, cause for, 259 
 
 petition for, (Form No. 26.) 
 
404 INDEX. 
 
 Section. 
 KEVO CATION OP LETTERS— continued. 
 
 failure to give counter security or new bond when petitioned 
 
 for by security, - 260, 263 
 
 petition, form of, (Form No. 27.) 
 
 reason for revocation to be stated at large on the record, 255 
 
 (Form of Clerk's Entry, No. 32.) 
 
 vacancy caused by, may be filled, when, ... 256 
 liability on bond in case of, - - - - 266, 267 
 
 acceptance by court of resignation amounts to a revocation, 269 
 
 REVOCATION OP WILLS, 
 
 how done — statutory provisions, - 60 
 
 by subsequent marriage — comments upon, (n. 1), - 60 
 
 intent essential to, 61, 62, 70, 145 
 
 destroying by accident not a revocation, - 70 
 a part may be revoked by obliteration without revoking the 
 
 remainder, - 63 
 
 revoking a former will erroneously supposing a later one 
 
 valid, the act is incomplete, 63 
 
 partial obliterations do not always amount to T revocation — 
 
 cases cited, ... 64 
 
 if portions are made illegible — the effect, .... 65 
 
 alterations without re-attestation, not valid, - - - 65 
 presumption of revocation by destroying, when not found 
 
 after testator's death — when, . - 73 
 where found mutilated after testator's death — presumption, 74 
 effect of a later revoked will on an earlier one, 66 
 duplicate will — one copy mutilated — held, the will not re- 
 voked, - - ... .... 67 
 
 " tearing " includes " cutting," ... - - 68 
 cutting out legatee's name a revocation as to him, - - 68 
 cutting out testator's or witnesses' signatures a total revoca- 
 tion, - .... 68 
 
 tearing off a seal to a will executed as a sealed instrument is 
 
 revocation, - .... ...69 
 
 effect of a change of the estate, at common law, stated, . 75 
 
 alienation of real estate operates as a revocation to that extent, 76 
 so will a valid agreement to convey, - .- - . -76 
 
 other cases stated, - - - - 78 
 
 effect where two wills are inconsistent, - - 80 
 
 revocation not held to extend further than is necessary, - 80 
 not revoked by subsequent birth of a child; or a posthumous 
 
 child, - - ... 533 
 
 RIGHTS VEST, 
 
 under a will at death of the testator, 226 
 
INDEX. 40.5 
 
 s. 
 
 Section. 
 SALE OF PERSONAL PROPERTY, - ... 328-339 
 
 to be ordered by the court — notice — credit may be given — 
 
 may be public or private, - . . 328, 329 
 
 forms of petition, order to sell and notice of sale, 
 
 (Forms, Nos. 42, 43, 44.) 
 hour of sale to be between 10 A. M. and 5P.I. - 338 
 
 if private and without an order of court — liability of per- 
 sonal representative, . . 330, 332 
 warranty of personal representative, may be set up in defense 
 
 to suit for purchase money, 333 
 
 personal representative has no right to become a purchaser 
 
 at his own sale, - . - 334 
 
 when the will directs that personal property be not sold — 
 
 what to be done with it, ... 335 
 
 if sale not necessary to pay debts, etc., court may order it 
 
 distributed, - ... 336 
 
 crops may be cultivated, gathered and sold, - - 337 
 
 clerk and crier may be employed — compensation, - 338 
 
 bill of sale to be made under oath of personal representative 
 
 — what it shall contain — to be filed, etc., 339 
 
 personal representative may indorse and sell a promissory 
 
 note, . - - 331 
 
 SALE OF REAL ESTATE, 
 
 under a power contained in a will, ..... 438 
 when and by whom to be made, .... 339-341 
 
 under an order of court to pay debts, - 449-511 
 
 the court may coerce personal representative to apply for 
 
 an order to sell, - 449 
 
 real estate may be sold to pay purchase money, - - 450 
 
 SALE TO PAY DEBTS GENERALLY, 
 
 account of personal estate and debts to be first filed, - 452 
 
 petition to be filed — where — who to be made defend- 
 ants, - - 453, 455, 457, 483 
 jurisdiction of person and subject matter, 454, 455 
 effect of a want of jurisdiction, 454, 455, 456, 474 
 jurisdiction of person and subject matter once obtained, judg- 
 ment can only be reversed by direct proceedings — can- 
 not be impeached collaterally except for fraud, 461, 496 
 reversal of order does not destroy title acquired under the 
 
 sale, - ... 462 
 
406 INDEX. 
 
 Section. 
 SALE TO PAT DEBTS GENERALLY— continued. 
 
 allegations of petition — what it must contain, - - - 457,458 
 must be signed by petitioner, and verified by his oath, 457 
 
 (Form of Petition for, etc., No. 70.) 
 to be filed ten days before the term at which application to 
 
 be made, - 457 
 
 application to be docketed, - - - 459 
 
 practice in these cases the same as in chancery, - - 459, 460 
 
 summons when returnable — what it must contain, - - 463,464 
 
 service and return of summons. .... 465-467 
 
 (Form* of Return No. 71.) 
 
 return may be amended, 466 
 
 non-resident and concealed defendants, and those whose res- 
 idence is unknown, how notified, - - - 468, 470 
 " nearest newspaper," - - .... 469 
 printer's or publisher's certificate of publication, evidence, 471-473 
 
 (Form of Certificate, No. 74.) 
 what the notice must contain — no particular form essential, 474 
 defect in notice cured by appearance and defense, - 475 
 
 if all parties interested are not made defendants, petition to 
 be amended, and new parties are to be served with sum- 
 mons, etc, - - - -. - 482 
 further publication of notice necessary where petition has 
 
 been amended so as to include other tracts of land, - 482 
 minor defendants to have a guardian ad litem appointed for — his 
 
 duties, - 476-480 
 
 default taken against minors — allegations of the petition 
 must be satisfactorily proven, even if they are admitted 
 by the minor, - - - 480 
 
 hearing of the cause on issues — proofs — what must be shown — 
 deficiency to pay debts and expenses to be found — 
 order of sale to be made — what property to be sold — 
 overplus of money to be distributed, - . 481 
 
 there must be existing debits against estate, - - 483 
 
 the order will not be granted to pay expenses of administra- 
 tion where no debts were owing, ... 487 
 the allowance of a claim against the estate is not Conclu- 
 sive — heirs and others may contest its validity — rule 
 
 stated, - 487 
 
 cases stated, .... 484, 487 
 
 not necessary to show that personal estate of deceased in another 
 
 state has not been exhausted, .... . 485 
 ownership of real estate not necessary to be proved if peti- 
 tion is taken as confessed, 486 
 
I3TDEX 407 
 
 SALE TO PAY DEBTS GENERALLY— continued. 
 
 not necessary to specify in the order the particular estate 
 
 which deceased had in the land, - . . 495 
 
 (See Doweb.) 
 of recitals or rinding in the order of what was proved, 489 
 
 quantity of real estate the order should direct sold, 490 
 
 where the petition, order of sale, etc., described the wrong 
 tract of land, held, bad ; and where the petition, notice 
 of sale and administrator's deed described the right 
 tract, but the order, after describing the land as that in 
 the petition, described it wrongly in figures — held, good, 496 
 where land has been devised to several, what proportion the 
 
 devise to each should bear of debts, - 491 
 
 order may direct a sale on credit 492, 497 
 
 (Form of Order of Sale, No. 76.) 
 the sale — statutory provisions — hour of sale — notice to be 
 given — premises to be described in notice — penalty for 
 selling in violation of the statute — but sale valid — re- 
 port of sale to be made to court, - - 497 
 court may prescribe a different notice from that required by 
 
 statute, .... 492 
 
 (Form of Notice, No. 80 ; Report, No. 81.) 
 in what paper notice to be published, . . - 499 
 
 if order is valid the statute intends the sale shall be held 
 
 good, - --. 498, 496 
 
 sale may be postponed to save a sacrifice, - - . 500 
 
 sale and conveyance to be made by personal representative 
 
 applying, but if he dies, by administrator de bonis non, - 501 
 what the deed must contain, - - - 502 
 
 warranty of personal representative binds him alone, - 503 
 
 where a sale has been made — supplemental petition for an- 
 other sale — proceedings, ... . 493 
 where a second sale was necessary — a case, .... 494 
 title acquired by purchaser at sale by personal representative, 503 
 widow's right to homestead and dower paramount, - 504 
 agreement between parties not to bid against each other at 
 
 the sale — its effect, - - - - 505 
 
 administrator purchasing at his own sale, a fraud per se, - 506 
 
 purchase not void but voidable, 509 
 
 proceedings to set aside such sale 507, 509 
 
 how account in such cases made up, ... 509, 510 
 
 proceeds of sale are assets for payment of debts, - - - 511 
 where dower is required to be set off, .... 512, 531 
 (See Dower.) 
 
408 INDEX. 
 
 Section. 
 SANITY, 
 
 (See Insanity, Sound Mind and Memoby.) 
 
 SATISFACTION, 
 
 of debts fay legacies, 110 
 
 SCIRE FACIAS, 
 
 for or against decedent may be revived by, after death, 425, 360 
 
 SCRIVENER OF WILL, 
 
 testator's instructions to, not receivable to aid in construc- 
 tion of will — but only in case of latent ambiguity, - 104 
 SEAL, 
 
 not necessary to a will, Unless executed under a power re- 
 quiring it, (n. 1), 35 ; (n. 7), - - - 210 
 when tearing off, operates as a revocation of a will, - - 69 
 
 SECURITY ON PERSONAL REPRESENTATIVE'S BOND, 
 
 husband of executrix may be, (n. 6), - 210, 223 
 
 none necessary to be given by executor if property of testa- 
 tor is sufficient to pay debts, and it is dispensed with in 
 
 the will, 224 
 
 on non-resident executor's bond to reside in the state, (par. 2), 333 
 if insufficient, may be required to give other security, - 259 
 
 when security released from liability on bond, 262-264 
 
 when surety desires to be released — proceedings, - 263 
 
 SENILE DEMENTIA, 29, 30 
 
 SETTLEMENT, 
 
 by personal representative who has left the state — proceed- 
 ings, - - - - 258a 
 
 if personal representative who has been removed fails to 
 
 make, who may sue on bond, - ... 263 
 
 failure to make, when ordered so to do by the court, personal 
 representative may be dealt with as for contempt, and 
 removed, - 263, 544 
 
 SETTLEMENT AND DISTRIBUTION, 
 
 personal representative to exhibit his accounts to the court 
 
 annually, and oftener if required by court, - - 534, 535 
 (Form of, No. 85.) 
 may be compelled so to do, - .... 544 
 
 may be cited to make settlement — proceedings, - - - 544 
 chargeable with interest — when, - - - -544a 
 
 notice of final settlement to be ordered by the court, - - 534 
 (Form of Order and Notice of, and Proof of Service, 
 
 Forms Nos. 86, 87.) 
 (Form of Final Settlement, No. 88.) 
 
INDEX. 409 
 
 SETTLEMENT AND DISTRIBUTION— continued. 
 
 what the personal represenative is bound to account for, 636, 537 
 distributions, how made, - ... 538 
 
 case of Heward v. Slagle, a case in equity, - - 540 
 
 personal representative may be cited to pay over to heir or 
 
 legatee before final settlement, - . - 541 
 
 may pay debts of the estate before ordered, 543 
 
 courts of equity have paramount jurisdiction in cases of set- 
 tlements of estates, - . . 543 
 personal representative may be attached if he fails to pay 
 
 over when ordered, etc., - - 545, 546 
 
 may also be sued on his bond, - 545-547 
 
 if sufficient to pay all debts, court will order payment of 
 
 legacies, specific first, 548 
 
 refunding bond may be required of legatees and distribu- 
 tees — to be filed in court, - - - 549 
 (Form of Refunding Bond, No. 100.) 
 duty of court in case moneys are to be refunded, 551 
 suit on refunding bond, 551 
 before suit against an executor for legacy can be sustained, 
 
 the court must order it paid, - - 552 
 
 upon final settlement, moneys belonging to non-resident or 
 unknown heirs, etc., may be ordered to be paid into the 
 county treasury, .... . 554 
 
 (Form of Order, No. 104.) 
 how such moneys drawn from treasury by persons entitled 
 
 thereto, - .... 554 
 
 SET-OFF, 
 
 allowed on claims against estates, and if more than equal to 
 the claim, judgment may be rendered for the amount 
 due the estate, and the reverse, - - - 356, 379 
 
 SHERIFF, 
 
 his duty to attend county court, serve writs, etc., - - - 577 
 
 SIGNING WILL, 
 
 (See Wills.) 
 
 SOLVENT, 
 
 (See Insolvent Estates. 
 
 SOUND MIND AND MEMORY, 
 
 necessary to the execution of a will, ..... 8 
 persons not of, classified, ...... 17 
 
 SPECIFIC LEGACIES AND DEVISES, 
 
 defined, - 559 
 
 contribution of, towards debts of estate, 560 
 
410 INDEX. 
 
 Section. 
 SPECIFIC PERFORMANCE, 
 
 of contracts by deceased to convey real estate — statutory 
 
 provisions to enforce, 436, 437 
 
 of other contracts, 438 
 
 STATUTE OF LIMITATIONS, 
 (See Limitations.) , 
 
 SUMMONS, 
 
 (See Sale of Real Estate.) 
 to be issued against personal representative when claim 
 against an estate is not presented at the term of court 
 
 fixed by him, 351 
 
 SUBSCRIBING WITNESS, 
 
 (See Witness to Will.) 
 
 SUPPLYING WORDS, 
 
 of will omitted by mistake, 99 
 
 SURETY, 
 
 (See Security.) 
 
 SURPLUS, 
 
 when land is sold under .a "power in a mortgage, where the 
 
 surplus goes, - 285 
 
 SURVIVING PARTNER, 
 
 (See Partnership Property.) 
 may not be administrator of deceased partner, (n. 1), - - 337 
 
 T. 
 
 TAXES, 
 
 administrator not required to pay on real estate, ... 434 
 
 TEARING WILL, 
 
 (See Revocation.) 
 TENANT, 
 
 his rights with reference to fixtures 299-306 
 
 TESTAMENT, 
 
 defined, - ... 1, 2 
 
 TESTAMENTARY CAPACITY, 
 
 persons having — statutory provisions, ...... 8 
 
 aliens have, -. 8 
 
 when minors become of full age, 9, 10 
 
 blind persons have, 11-13 
 
INDEX 411 
 
 Section. 
 TESTAMENTARY CAPACITY— continued. 
 
 deaf, dumb and blind persons have, .... 14-15 
 
 persons not having, 17 
 
 defined in Roe v. Taylor, 28 
 
 considered, - 29-33 
 
 TESTAMENTARY OR TESTATUM CLAUSE, 
 
 to a will, (See Attestation.) 
 TESTAMENTARY GUARDIAN, 
 
 may be appointed for minor unmarried children, and for 
 child likely to be born — statutory regulations, 
 
 (note 6), 212 
 
 TESTAMENTARY DISPOSITION, 
 
 subjects of, statutory provisions, 6 
 
 TESTAMENTARY LETTERS, 
 
 (See Letters Testamentary, Executor.) 
 TESTATOR, 
 
 his power over his property, -...-,.. 7 
 
 TIME, 
 
 of becoming of full, age, - 9 
 
 from which a will speaks, (Rule IV), - . - - - - 83 
 
 at which it takes effect, 6, 75 
 
 when death presumed from lapse of, 139, 140 
 
 TITLE, 
 
 to real estate acquired by purchase of .personal representa- 
 tive, only that which vested in the heirs — he takes sub- 
 ject to all its infirmities, - ... 503 
 warranty of, in deed by personal representative, - - - 502 
 TOMBSTONES, 
 
 cost of, a part of funeral expenses, 377 
 
 TORTS, 
 
 actions for, which do not survive, 398 o. d. 
 
 TREASURY, 
 
 county — public and other administrators to pay balance of 
 
 estate into, when ordered, - - - 252, 554 
 
 how such moneys to be drawn from, .... 252, 554 
 
 TREES, 
 
 fruit, ornamental and other growing trees are part of the 
 
 realty, - - - 280 
 
 TRUSTEE, 
 
 of the appointment of, in a will, (note,) .... 212 
 
412 INDEX- 
 
 U. 
 
 Section. 
 UNCERTAINTY, 
 
 in a will, when aided by transposition of words, etc. (Rule 
 XIX), ... . . . 83 
 
 will void for, (Props. VI, VII), 107 
 
 how uncertainty removed, (Props. VI, VII), - - - 107 
 
 UNDUE INFLUENCE, 32, 33 
 
 meaning the same as " other improper conduct," 187 
 
 like fraud, not definable, 187 
 
 when it may be shown, - .... 147, 151 
 
 by whom proven, 152, (cl. 3), 153 
 
 evidence admissible to prove and disprove — cases stated, 202-204 
 effect of, to avoid the whole will, but may avoid only the 
 
 provisions in favor of the party exerting it, - 198 
 
 what its effect must be on the mind of testator to avoid the 
 
 will, ... - 195 
 
 subsequent conduct of testator as disproving charge of, 196 
 
 will made under, void and cannot be made valid by subse- 
 quent recognition, - - - 197 
 agreement of testatator to do particular acts in consideration 
 of provisions in the will, in favor of the party making the 
 agreement, is binding, ... . . 199 
 
 UNREASONABLENESS OF TESTAMENTARY PROVISIONS, 
 
 effect of, where will is contested — burden of proof, - - 192 
 
 UNSOUNDNESS OF MIND, 
 
 (See Testamentary Capacity.) 
 
 VEST, 
 
 rights under a will vest at death of the testator, ... 226 
 when widow's right to her award, vests (n. 5), 533a 
 
INDEX 413 
 
 W. 
 
 Section. 
 WABRANTY, 
 
 of personal property sold by personal representative, - - 333 
 of title to real estate, in a deed made by personal representa- 
 tive binds him alone, 503 
 
 WASTE, 
 
 of personal property by widow or subsequent husband — 
 
 suit for, by personal representative, 433 
 
 WIDOW, 
 
 (See Doweh.) 
 her rights when the will appoints a guardian of her minor 
 
 children, - - - - 6, (note), 212 
 
 her award not included in dower, (n. 1), .... 210 
 when her right to her award vests, (n. 5), - 533a 
 
 her award in no case affected by renouncing or failing to re- 
 nounce provisions of the will in her favor, - (n. 1), 210, 326 
 when entitled to an award, - .... 318 
 
 of what it shall consist, - - - - - 318 
 
 award generally attached to appraisement bill, ... 319 
 
 (Form of Award, No. 38.) 
 how estimate of the value of items made, 319, 320 (n. 2), 321 
 
 may take in lieu of award, the property exempt from execu- 
 tion, - ... 322 
 exempt property specified, - - .... 323 
 may elect to take other property or money, .... 825 
 
 (Form No. 39.) 
 duty of personal representative in such case, - - 325 
 
 if estate is not equal to amount of award and expenses of 
 
 administration, it may be delivered to the widow, - - 327 
 proceedings in such case, -.- - - -»- - 328 
 
 (Forms No. 40, 41.) 
 may object to allowance of claims against the estate, - 366 
 
 waste of personal properly by, or by subsequent husband — 
 
 suit for, - 433 
 
 renunciation of provisions of will in her favor, 531, 532 
 
 may elect to take dower instead of rights under a trust, or 
 
 jointure or devise, - ... 514 
 
 may elect to take instead of dower one-half of the husband's 
 
 real estate in certain cases, .... 514 
 
 when an heir to her husband, - .... 531, 533 
 
414 INDEX. 
 
 „. Section. 
 
 WIFE, 
 
 not next of kin to her husband, (n. 10) 239 
 
 WILL, 
 
 defined, 1, 2 
 
 comments on the preparation of, ----- - 209 
 
 comments on provisions of, concerning the rights of widows, 
 
 (n. 1), . - . 210 
 
 comments on trusts and trustees created by, (n. 1), - - 212 
 testator may direct that his estate be not sold, but distributed 
 
 in kind — effect, (n. 2), - - - 210 
 
 may provide that executor be not required to give security, 224 
 
 (Forms of, 210, 211, 212, 214.) 
 •widow may renounce provisions of, in her favor, - - 431, 432 
 
 who may make, - 8 
 
 when disability of infancy ceases, 9 
 
 blind persons, 11, 13 
 
 deaf and dumb, ----14 
 
 deaf, dumb and blind, - 15 
 
 insane persons in lucid intervals, 25 
 
 persons incapable of making a will, 16 
 
 persons of unsound mind classified, 17 
 
 insane persons, - - - - - 8, 20 
 
 persons suffering from delirium of disease or of stimulus, 22, 23 
 
 idiots, - - - - - 26 
 
 persons of weak mind, .... 27, 28, 31 
 
 persons subject to senile dementia, '-...- 29, 30 
 
 how executed — statutory requirements, - - - 34, 36 
 
 what not required in its execution, 35 
 
 what required if executed under a power, (n. 1), - - - 35 
 may be written with ink or pencil or printed, - - 37 
 
 signature — how executed, - - - 38-40 
 
 if signed by another for testator it must be done in the tes- 
 tator's presence, - - 41 
 testator must acknowledge the will to be his act and deed, 
 
 if he did not sign it in the witnesses' presence, - - 162 
 (Forms of, 210, 211, 212.) 
 
 no testatum clause necessary, - 42 
 
 attestation by witnesses, (See Attestation.) 
 
 publication of, not required, (Seenote to Form No. 6,) - 50 
 
 void as to witnesses who are beneficial devisees or legatees, and 
 
 wives and husbands of such, - 46, 47 
 
 not void as to witnesses whose debts against the testator are 
 
 secured by provisions ot the will, - - 47a 
 
 nuncupative wills — how made and proved, {See Nuncupative Will.) 
 
 effect of codicil or subsequent will upon the original will, etc., 50-55 
 
INDEX. 415 
 
 Section. 
 WILL — continued. 
 
 effect of inconsistent wills, - 80 
 
 later will sometimes treated as a codicil, .... 55 
 (See Codicil, Construction, Ambiguity, Extrinsic Evidence.) 
 probate of, 
 
 county court has jurisdiction, ... . 132, 133 
 
 in what county, - 134 
 
 executor named in, to cause it to be probated, penally for 
 
 failure, - - - ... 135 
 
 person having it in custody, to deliver to the county court — 
 
 penalty for failure, - ... 136 
 
 destroying or secreting — penalty for, 136 
 
 proof of testator's death to be made, - 137-141 
 
 proof of death to be made by affidavit — what it must contain, 138 
 
 (Form Proof of Death, No. 1.) 
 where lost or mislaid — may be probated — evidence — what 
 
 must be shown — search — proof of execution, 142-145 
 
 duty of court to receive probate, - - 146 
 
 quantum of proof required by statute, 147-153, 155 
 
 on appeal from probate court refusing, what evidence ad- 
 missible, - - - - 149-153 
 non-resident witness — testimony to be taken under a dedimus, 155 
 (Form of Dedimus, No. 3.) 
 if county judge is an attesting witness, his testimony to be 
 
 taken before the circuit court, . 156 
 
 deceased witnesses and those whose residence is unknown — 
 handwriting may be proved and other secondary evi- 
 dence taken, - ... 157 
 conclusiveness of probate in county court in collateral 
 
 actions, - 172 
 
 appeal — practice on appeal, - - - . - 175 
 
 if probate, allowed on appeal from county court refusing 
 
 probate the will may be contested in chancery - 174 
 
 if refused in the circuit court also, the judgment is conclu- 
 sive, - - 175 
 when contested by bill in chancery — pleading — practice — 
 
 affirmative of the issue, - - - 177-183 
 
 the case of Eigg v. "Wilton, - - 181-184 
 
 foreign wills — effect of — statutory provisions, - 205 
 
 provisions for and effect of recording here, ... 206, 208 
 
 WITNESSES TO WILL, 
 
 must be credible — at what time, - 34, 44 
 
 must sign in the testator's presence, and it may be done by 
 
 mark, -.-43 
 
416 INDEX. 
 
 Section. 
 WITNESSES TO WILL— continued. 
 
 but need not attest it in each other's presence, - - - 162 
 if will is signed for testator it must be done in his presence, 41 
 
 (See Will.) 
 what is signing in testator's presence, - - - , 41, 43 
 
 the will must be attested by two or more witnesses, - --34 
 they need not know at the time that the paper was intended 
 
 for a will, 165 
 
 impeachment of, 45 
 
 case of a forged will, 45 
 
 who incompetent by reason of interest, - - 46, 47, 158, 159 
 non-resident — how testimony to execution procured, - - 155 
 countyjudge, how testimony taken, ... . 156 
 
 handwriting to be proved, 157 
 
 fact of death of witness, or that his residence is unknown, 
 
 to be shown to court, 169 
 
 if witnesses are strangers to the testator, their identity to be 
 
 shown by other witnesses or by proof of handwriting, 161 
 where they do not remember what occurred, etc., when the 
 
 will was attested — proceedings, - 167 
 they are required to testify to the mental condition of tes- 
 tator, 147,149 
 
 if not signed by the testator in their presence, it must be 
 
 shown to have been acknowledged in their presence, - 163 
 
 WORDS, 
 
 in a will may be changed — when, 98-96 
 
 omitted by mistake may be supplied, 99 
 
 WRIT OF ERROR, 
 
 when prosecuted by personal representative, condition of bond, 580