Cornell University Law Library The Moak Collection PURCHASED FOR The School of Law of Cornell University And Presented February 14, 1893 IN nEHORY OP JUDGE DOUGLASS BOARDMAN FIRST DEAN OF THE SCHOOL By his Wife and Daughter A. M. BOARDMAN and ELLEN D. WILLIAMS Cornell University Library KF 778.C95 A treatise on the law '61^,'° Sji* 3 1924 018 847 206 The original of tiiis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924018847206 A TREATISE ON THE LAW KELATING TO EXECUTOES AND ADMINISTEATORS. TREATISE ON THE LAW RELATING TO EXECUTORS AND ADMINISTRATORS. BT v. May 717 Coffin V. Cottle 11, 668 452, 471 , Tapley v. 631 V. Pishon 29, 639 Cogan V. Duncan 700 , Rutherford v. 67, 284 Coggeshall v. Green 90 V. Sewall 481 Coghill V. Freelove 652 , Steele v. 754 Colbeth, Crowe v. 767 , Tainter v. 475 Colburn, Trahern i;. 757 Clarke v. Chapin 284 Cole, Blake v. 733 434 , Myer v. 684 , Henderson v. 69 , Pope V. 600, 601 , King !;. 678 V. Rea 179 TABLE OP CASES. XXV Section Seotion Cole V. Shurtleff 766 Conlan, Harrison v. 643, 644 V. Smalley 636 Conly V. Conly 647 V. Wooden 225, 592 Conn. River R. R. Co. Riley v. 369 Colegrove v. Eobinson 407 Conner v. Satchwell 491 Coleman, Griffith v. 150, 173 Connet, Carrol v. 111 u. Parker 620 Constable, Bedell v. 116 Coles, Leaf v. 599 Constantine, Clark v. 200 Collamore, Putnam v. 640 Converse, Barber v. 199 Collector of Customs, Rex v. 389 , Brattle v. 216 Collier, Elliott v. 130 Conway v. Green 472 V. Eivaz 553 , Rector v. 543 Collin, Reynolds v. 339 Cony, Pemberton v. 106 OoUingwood ti. Pace 162 Conyers v. Kitson 139 Collins V. Collins 269, 332 Cook V. Carr 170 , Crawshay v. 597 , Dolman v. 420 , Ginn v. 755 , Heath v. 663 , Handy v. 312 318, 332, 546 ^ — V. Lewis 101, 389 , Hardy v. 46 Cooke V. Gibbs 683 , Watson V. 57 V. Meeker 503, 504 CoUner, Foster v. 764 Cooley V. Dewey 521 CoUyer, Matter of 357 Coope V. Lowerre 83, 89, 103, 165 Colmer, Milner v. 498 Cooper, Aldrich v. 709 Colored Woman's Home, Deane v. 745 V. Felter 399 Colson, Dampier v. 166 !>. Hanna 699 Colt V. Colt 679 V. Woolfltt 348 742 Coover's App. 125, 129 , Fowler v. 394, 504, 506 Cope V. Cope 712 V. Learned 649 V. McFarland 699 506 Copeland, Johnson v. 560 Coltart V. Allen 15,46 Coppin V. Dillon 167, 173 Colthurst, Tomkins v. 711 , Thrustout V. 76 Colton V. Ross 29 Corbett, Schofield v. 742 Columbian Steam NaT. Co., Leon- Corcoran v. Bost. & Alb. R. R. Co. 369 ard V, 63 V. Henshaw 644 Colvin's App. 92 Cordall's Case 329 Colwell V. Alger 314, 677, 679 Cordeaux v. Traster 171 269, 314 Cordis, Clar.ke v. 434 Combs, Bradshaw r. 754 , Treadwell v. 496, 640 Comey, Cady v. 721, 722 Corlies v. Little 587 Commonwealth, Bradley V. 273 Corn V. Corn 301 V. Bryan 312, 321, 323 Cornell, Denham v. 332 , Devlin v. 26 , First Nat. Bk. v. 763 V. Gould 485 V. Gallagher 101 V. Hammond 680 Corner v. Shew 657, 659, 684 , Hartzell v. 208 Cornpropst's App. 91, 175 V. Mateer 195 Cornthwaite, Atty.-Gen. v. 704 , Miller v. 333 Cornwall v. Cornwall 229, 711 , Small V. 208, 266 Oornwell, Adie v. 491 Co. 356 , Nelson v. 668 Comparet v. Randall 328 Corwine v. Corwine 489 Compher v. Compher 379 Cother v. Merrick 358 Compton, Dickson v. 670 Cotter's Est. 92,96 Conant v. Kent 516, 518 Cotter V. Howard 97 Conaway, Stocksdale v. 195, 196 V, Taylor 145, 181 Condit V. Winslow 534 Cotterell v. Brock 305 Condon, Keating v. 337 , Stephens v. 764 Cone, Colt v. 742 Cotting, Cronan v. 656, 665 Congdon, Miller v. 506 Cottle, App. 8,11 , Pember v . 766 V. Aldrich 685 Conklin, Tremper v. 695 , Coffin V. 11, 668 XXVI TABLE OF CASBa. Section Section Cottle ». Van der Heyden 170 Crompton v. Sale 481 Coulter's Case 675 Cromwell, Meakings «. 331 County Bank, Griffith v. 467 Cr'onan v. Cotting 656, 665 County Court, MuUanphy v. 145 Cronin, Haverhill Loan, etc. Assoc, v. Court of Probate, Sarle v. 221 416 Courtenay v. Williams 483 Crook, Cannon v. 757 Cousins V. Paddon 690 Crocker v. Jewell 445, 451 Coventry v. Coventry 712 Crosby's Est. 420 Coverdale v. Aldrich 718 Crosby v. Leavitt 59,68 Cowan, Owens v. 234 Cross V. Brown 254 Coward v. Gregory 674 Crossau v. McCrary 51, 184 Co well V. Oxford 679 Crosse v. Smith 672, 693 V. Watts 372 Crossland v. Murdock 34 Cowing, Woodward v. 598 Crouch V. Eveleth 459 Cowley V. Patch 649 Croushore, Twistman v. 764 Cox's Creditors 708 Crowe V. Brady 357 Cox, Besson v. 751 V. Colbeth 767 V. Chalk 300 Crozier, In re 225 V. Godsalve 348 Cruise, Gray v. 16 V. Roome 442 Crump, Martin v. 636 : , Sargeant v. 253 Cude V. Spencer 699, 700 , Woodruff V. 82 Cudworth, Litchfield v. 471 Crackelt v. Bethune 506 Culberson, Spraybury v. 67 Crafton, Beal v. 502 Culbert, Odell v. 749 Cragin, lUin. Cent. R. E. Co. V. 59,66 Culpepper v. Aston 710 Craig V. Leslie 332 Cumberland, Brett v. 652 Crane v. Brainard 656 Cummings v. Cummings 883, 713 V. Crane 754 416 , Peat V. 678 Curamons, Truett v. 241 Cranmer's Case 481 CunlifE, McPherson v. 24 Cranor, Hignutt v. 422 Cunningham, Loring v. 332 Crapo, Almy v. 328, 335 Curling v. Hyde 720 Crary, Williams v. 481 Currier's App. 378 Crater, Welsh v. 518 Currier, Kimball v. 622 Crauford v. Crauford 18 Curry v. Eulkinson 510 Crause's Est. 381 Curser, Matter of 80, 173 Crause, Goods of 131 Curtis V. Hunt 691 Crawford v. Hamilton 593 600, 649 , Hildebrandt v. 762 , Ostrom V. 415, 419 , Woods V. 18 V. Vernon 675, 685, 694 Crawshay v. Collins 597 , Vernon v. 685 Creamer v. Waller 311 Gushing v. Burrell 603 Creighton, Green v. 682 649 , Murphy v. 62 , Hall V. 270, 666, 725 Crenshaw, Edmonds v. 580, 584, 588, Cushman, Eisk v. 624, 626, 627 589 Cuthbert v. Purrier 500 Cresse, Matter of 191 Cutter V. Davenport 571, 678 Cringan, Goods of 109 Cutting V. Tower 366 Crippen v. Dexter 32, 558 Cutts V. Raskins 13,45 Crispin v. Winkelman 240 Crittenden, Alexander v. 498 Crocker v. Old Col. E. E. Co. 478 D. V. Smith 328 Crockett, Erye v. 270 Dabergott, Gang v. 182, 184 Croft V. Lyndsey 672 DaboU V. Field 715 V. Williams 588, 589 Da Cunha, Goods of 151 Crofton, McLellan v. 749 Dagley v. Tolferry 497 Crofts, Middleton v. 55 Dalton, Chapman v. 374 , Smith V. 110 Daly V. Ericsson 604 Croke, Needbam v. 372 468 TABLE OP CASES. XXVH Section Section Dampier ». Colson 166 Dee, Parker v. 698 Dana v. Prescott 420 Dehon, Harlow v. 737 , Sclienkl v. 598 608, 640 Deichman, Goods of 109 Danaher, Page v. 767 De Jonge, Wigand v. 9,11 Dane v. Walker 521 De La Garde v. Lempriere 499 Daniels v. Foster 767 De La Guerra v. Packard 240 V. Pratt 357 De Laistre, De Sobry v. 552, 574, 576 V. Richardson 653 De Lan<'y, Taylor v. 165 Darby v. Mayer 34 Delaplaine v. Smith 827 Darling v. Blackatone Man. Co. 367 Demarest's Est. 95 Darrah b, McNair 511 Demarest v. Wynkoop 339 D'Arusment v. Jones 26 Demmon, McKim v. 288 Davenport, Cutter v. 571, 678 Demott V. Field 684 Davidson, Graham v. 318 Den V. Allen 331 Davies, Goods of 139 V. Hammel 23 Davis, Blackborough v. 160 Denham v. Cornell 332 V. Boylston 527 Denise v. Denise 483 V. Davis 528, 722 Deni^on v. Denison 757 V. Estey 575 Denman, Frost v. 443, 444, 646 V. Howell 602 Dennett v. Hopkinson 348 V. Inscoe 197, 199 Dennick v. Railroad 370 V. Jacquin 74 Dennis's Est. 380 , McClanahan v. 491 Dennis, Ray v. 742 V. Newman 494 , Smith V. 216 V. Newton 498 , 527, 528 V. Winter 17 V. New York & New Engl. R.R. Densler v. Edwards 247 Co. 369 .370, 580 Dent's App. 577 V. ISey 620 624, 625 Dent, Edelen v. 480, 481 , Peters v. 604 , Maddox v. 332 V. Pope 643, 646 Denton, Clark v. 475 V. Sanford 749 Derby v. Derby 503 V. Stinson 516, 518 De Sobry v. De Laistre 552, 574, 576 503 Despard v. Churchill 552,577 u. Vanderveer 518 Devese v. Pontet 481 Dawes v. Boylston 559, 560, 563 Devlin v. Commonwealth 26 V. Edes 724 Devling v. Little 585 V. Head 575, 728 Dewey, Cooley v. 521 V. Shed 731, 739 V. Goodenough 120 Dawson, Brown v. 480 V. Van Deusen 629 , Huger V. 690 Dexter v. Booth 749, 758 V. Wait 766 V. Brown 57 Day V. Floyd 685 , Crippen v. 32, 558 , Hannum v. 459 , Johnson v. 766 V. Lamb 651, 722 Dey V. Codman 539, 540, 541, 549 Dazey, Freeland v. 715 D'Huart w. Harkness 552 Dean v. Biggers 234, 257 Dibble, Byrnes v. 144 , Brazer v. 378 V. Woodhull 414 , Brown v. 647, 654 Dickenson v. Arms 543 , James v. 887 V. Callahan 644 , Prentice v. 634 V. Hayes 17 Deane v. Caldwell 418 , Owens V. 705 V. Colored Women's Home 745 Dickerson, Lowndes v. 344 V. Hathaway 427 Dickey, Merritt v. 604 Dearborn v. Matlies 565 497 Dearing, Matter of, 307 Dickinson, Inches v. 653 De Beauchesne, Hodgson V. 553 Dickson v. Compton 670 De Bonneval v. De Bonneval 553 Diehl V. Emig 764 Deck V. Gherke 300 Dietrich's Ace. 539 De Diemar v. Van Wagener 668 Dietz V. Dietz 229 Deeks v. Strutt 679 Digger v. Jarman 587 XXVlll TABLE OP CASES, Dill, Doggett V. Dilley, Henry v. V. Love , State V. Dillingham, Sears v. Dillon, Coppin v. Dinehart, Nettleton v. D'lnvillier's Est. Dismukes, Leverett v. Disston's Est. Ditson, White v. Dixon, Le Mason v. Doak's Case Dobson V. Carpenter Dock, Sawmill v. Dodge V. Breed , Morgan v. V. Stanhope Dodsworth, Langley v. Doe V. Guy V, Hughes V. Porter Doggett V. Dill Dolan, In re Dolmin v. Cook , Wellington v. Donaldson v. Eaborg Donelly, McGregor v. Donlau v. Provid. Instit. Doolittle, AndrusB v, Doran v. Simpson Dorchester v. Webb Borland v. Dorland Dornford v. Dornford Dorsey v. Hammond , Miller v. V. Smithson Doswell V. Earle Dougherty, Howard v. , Walker v. Doughty, Plummer v. Douglass V. Clay V. Forrest V. FuUerton , Lord Hastings v. V. Satterlee Doutliitt, Matthews v. Dow, Barnes v. Dowley v. Winfield Downey, Prior v. 17, Downing, Ames v. Dowthwaite, Brown v. Dozier v. Joyce Drach, Seip v. Drake, Head v. , Niles V. V. Pell , Saunders v. Draper v. Jackson Section 602 680 757 550 196 167, 173 369,371,635 602 78, 118 548 632, 633, 724 362 560, 707 229 487 227 418 12, 22, 272 757 754 679 331 337 602 474 420 130 216, 217 752 626 319 603, 713 592 331 506 690 543 245 499 229 221 339 705 685 754 375 588 15, 216 766 500 240, 243, 271 320, 691 713 12 684 407 649 333 507 883 Section Drayton, In re 113, 212 V. Grimke 234 Dreisbach, App v. 680 Drew's App. 172 Drew V. Gordon 379 V. McDauiel 760 , Symmes v. 462 Drexel v. Berney 257, 306 Dry Dock, East Broadway, &c. R. R. Co., Martin v. 235 , Morton v. 23 Dublin V. Chadbourn 31, 34, 558 Du Bose, Halliday v. 190 Duchess of Orleans, Goods of 73 Dudgeon, Bray v. 118, 128 Dudley (Lord) v. Lord Warde 353 Duesterbury, Taylor v. 755 Duffy, Reilly v. 532, 548 Duggan, Capen v. 462, 501, 721, 722 , White V. 281 Duke of Athol, Lanoy u. 709 Dunbar v. Dunbar 711 Duncamban v. Stint 260 Duncan, Cogan v. 700 V. Stewart 26 Dunham v. Dunham 288 , Kent V. 497, 503, 505, 506, 679, 740 , Thaclier v. 745 Dunkley v. Dunkley 498 Dunn, Goods of 139 V. Keeling 331 V. Sargent 499 , TuUoch V. 688 Dunning, Montgomery v. 324 , Purrington v. 459 Dunscorab, St. Juijo v. 151 Dupuy V. Wurtz 554 Durfee, Prescott v. 67 Dushane, Patterson v. 764 Du Vivier v. Hopkins 419 Dwight V. Newell 586 Dwinel, Treat v. 635 Dyer v. Clark 389 , Green «. 416 , Smith V. 629 Dyson, Giles v. 669, 691 E. Earle, Doswell v. 499 V. Earle 589 V. Hinton 690 Eastabrook, Carr v. 498 Eastman, Caverly v. 458 V. Woronoco Savings Bank 624 Eastwood, Hellawell v. 352 Eaton V. Benton 481 , Burnett v. 472 TABLE OP CASES. XXIX Section Section Eaton, McNichol v. 562, 676 Ensign, Kinney v. 628 V. Whittaker 416 Ensor v. Graff 40,42 Eberstein v. Camp 493, 494 Entrekin, Staple v. 308 Edelen v. Dent 480, 481 Epler V. Epler 493 Edes, Dawes v. 724 Eppes V. Smith 700 Edmonds v. Crenshaw 580, 584, 588, Eppinger v. Canepa 546 589 Ericsson, Daly v. 604 Edmunds v. Rockwell 468 Erving, Moody v. 684 V. Scott 478 Eskridge, Happis v. 120 Kdney v. Bryson 491 Estey, Davis v. 576 Edward's Est. 298 , Henry v. 327 Edwards, Adams v. 764 Evans v. Iglehart 347, 502 , Allen V. 483, 493 , Powell «. 667 V. Bruce 194 V. Roberts 346 247 Eveleth, Crouch v. 459 V. Ela 539 Evelyn v. Evelyn 169, 712 , Ela V. 562, 579, 758 Everard, Seaman v. 671 V. Warwick 382 Everett v. Carr 489 Egleaton, Kneil w. 627 , Smith V. 585, 612 Ehlen v. Ehlen 94, 136 V. Williams 735 Ela V. Edwards 562, 579, 758 Evoy, Chase v. 7.52 , Edwards v. 639 Ewing V. Moses 224 Elder v. Littler 675, 676 V. Peters 691 Elibank v. Montolieu 484, 498 Eyster's Est. 214 Eliott V. Sparrell 506 Elkington, Welcden v. 491 Elkins, Pratt v. 762 F. EUicott V. Chamberlain 116, 200 Elliott, Buswell v. 34 Fairbank, Sugar River Bank i 737 V. Chamberlin 200 Fairbanks, Blood v. 762 V. Collier 130 V. Hill 120, 129 V. Gurr 120, 123 Fairfax v. Fairfax 263, 283 , Hall V. 247 Fairfield v. Woodman 425 V. Merryman 471 Fairman's App. 391, 892 , Woods V. 670 Fales V. Stone 635 Ellis V. Guavas 389 Farley, Gibson v. 462 , Turner v. 315 Farnam, Bean v. 663 Ellmaker's Est. 118, 119, 167, 207, 229 Farnum v. Bascora 489 Ellsworth, Blair i: 766 Farquharson v. Floyer 711 Elmendorf v. Lansing 592 Farrelly v. Ladd 857 Elton, Browne v. 498 Farrow, McRae v. 587 , Burroughs v. 603 Fath, Weimar v. 475 Elwell, Brigham v. 335 Faulkner, Bradner v. 503 V. Quash 586 Fay V. Cheney 340 Elwes V. Maw 354 562, 563 Emerson v. Bowers 89,90 354 , Gould V. 356 V. Rogers 730 , Rotch V. 503 V. Valentine 279, 469 V. Thompson 543, 736 Featherstonhaugh v. Fenwick 597 Emery v. Batchelder 489, 579 Fellows V. Smith 381, 750 V. Berry 241, 242, 248 — — , Smith V. 493 , Going V. 331 Felter, Cooper v. 399 V. .Hlldreth 29 30, 59, 61, 64 Felton, Ball v. 661 Emig, Diehl >: 764 , Leland v. 361 485, 628 Engel V. State 610 Feltz V. Clark 272 Englesing, Rea v. 191 Fenbee, Proctor v. 333 English V. Porter 760 Fennemore, Chambers u. 543, 670 , Slocum V. 468 Fenner v. Taylor 499 Kngs, Hazard v. 539 Fennimore v. Fennimore 588 Ensign, In re 139 Fen ton v. Clegg 492 XXX TABLE OF CASES. Section Section Fenwick, Featherstonhaugh v 597 Fogel, Glauoius v. 688 Ferguson, Harris v. 389 Fogelsonger v^ Somerville 24 V. Stuart 832 Fogg's Case 415 Fernandes's Ex'rs Case 64 Folger, Bigelow v. 742 Ferrie v. Pub. Adrar. 163, 256 Folsora, Kittredge v. 616 Ferrin v. Kenney 635 Foot V. Knowles 357 V. Myrick 392, 657 Forbes, Bradford v. 640 Fessenden's App. 463 V. Halsey 473 Fiedler, Stedman v. 664 V. Snyder 754 Field, DaboU v. 715 Ford V. Cheney 766 , Demott V. 684 , Iresdale v. 171 V. Hitchcock 549 Forrester v. Leigh 710 V. Sehieffelin 471 Forst, Susz V. 304 V. Torrey 81 Forsyth v. Burr 811 , Woodgate v. 704, 706 , Bussom V. 621 Fielder, Proudley v. 387 V. Ganson 688 Fielding, Wilson v. 709 Forward ;;. Forward 639, 540, 542 Filson, McClellan v. 393, 394 Fosdick, Sullivan v. 69 Finch 11. Finch , 5 Foss V. Lowell Five Cents Sav. , Ivat V. 750 Bank 620, 624, 626 V. Ragland 318 Foster's App. 336, 594 V. Rogers 491 Foster v. Blakelock 691 Finney v. Barnes 327 V. CoUner 764 First Nat. Bank v. Cornell 763 , Daniels v. 767 First Nat. Bank of New Haven v. V. Foster 592. 632, 715 Balcom 13, 17, 42, 47 649 Fishburne, O'DriscoU v. 111 , Osgood V. 493 Fisher, Hurtt t>. 332 V. Starkie 736 V. Lane 719 V. Stone 401 V. Metcalf 735 736, 740 V. Woods 470 , Putnam Free School v. 331 Fowle V. Coe 459 V. Skillman 588 V. Torrey 627 , Vance v. 328 Fowler's Case 185 , United States v. 396 Fowler v. Colt 394, 504, 506 Fisk, Bachelder v. 648 V. Fowler 480 V. Cushman 624, 626, 627 V. Kell 128 , Stearns v. 104 140, 299 , McCabe i'. 441 Fitch V. Peckham 480 , Oberlin College v. 471, 472 V. Weber 833 V. Sharpe 691 , Wetzler v. 212 V. Walter 215, 216, 257 Fitchburg R. R. Co., Tully v. 369 Fox's Will 331 Fitz, Chase v. 642, 644 Fox, Alexander v. 494 Fitzgerald v. Glancy 52 , Graysbrook v. 1,676 Flack, Guyton v. 241 , Scott V. 216 Flagg, Parker v. 622 V. Van Norman 240 Flagler v. Blunt 228, 618 Foxtwist V. Tremaine 372 Flandrow, In re 616 Framingham, Hewlett v. 690 Flannery's Will 552, 555 France's App. 393 Fleet V. Simmons 300 France v. Aubrey 64 Fleming v. Pelham 139 Francis, Amory v. 417, 445 Flemming v. Jarratt 247 , Howard v. 489, 504, 505 Fletcher, Holden v. 314, 652 Frankenfleld v. Gruver 515 V. Stevenson 487 Franklin v. Frith 673 Fliess V. Buckley 326, 397 , Griffith V. 685 Flinn v. Chase 309 , Smith V. 636 Flint !!. Warren 333 Franks v. Chapman 24 Flitner t>. Hanly 394, 415 Frazer v. Bevill 491 Floyd, Bowman v. 612 , 613, 640 Frazier, Griffith v. 26 , Day V. 685 , Wilson V. 136 Floyer, Farquharson v. 711 Frecker, Norton v. 543, 670 TABLE OP CASES. XXXI Freeland v. Dazey Freeling, Reeves v. Freelove, Cogliill v. Freeman's App. Freeman J). Freeman 595, Freke v. Thomas French, Blood v. V. Chichester V. Hayward , Wendell v. 1'. Winsor Frewen i;. Eelfe Frey v. Frey Frierson, Skinner v. Frink v. Luyton Frith, Franklin v. Fritz V. Thomas Frogatt, Sachererelle v. Frost n. Denman , Hunt V, , McKeen v. Froust V. Burton Fruen v. Porter Fry, Goods of Frye v. Crockett Fulkinson, Curry v. Fuller, Abby v. V. Linzee , Mucklowe V. FuUerton, Douglas v. Fulraer, Moody v. Fulton V. Nason Funkhauser, Phelps v. Furbush, Wilkinson v. Furman, Bogert v. Section 715 310 652 677 597, 598, 605, 607, 608, 640 220 758 711 416 645 420 582 440, 443 698 697 673 736 358 443, 444, 546 471 271 647 653 106 270 510 401, 463 387 666 754 475 635 328 136 342 G. Gage V. Johnson 631 Gaines v. Rotch 645, 546 Gale V. Luttrell 689 , Newhouse v. 306 Gallagher's Est. 511 Gallagher, Cornell v. 101 Gallaher, Rothrock v. 764 Gallego V. Attorney-General 494 Gallison, Andrews v. 617, 685 Gallup V. Gallup 572 Gans V. Dabergott 182, 184 Ganson, Forsyth v. 688 Gard, Negley v. 680 Gardiner's Case 420 Gardiner, Casey v. 197 Gardner, Lee v. 700 , Mockbee». 445 , Vaughn v. 684 Garland, Ex p. 610, 664 Garrett v. Noble 664 Garriek, Burdick v. Garrison, Budd v. Garth v. Taylor Garthshore v. Chalie Gaston, Wilson v. Gaters v. Madeley Gates, Hemenway v. Gavin v. Carling Gay, Pet. V. Minot Gaylord, Stanley v. , Stevens v. Gaynon, Wood v. Geans v. Price Gedge v. Traill Gee, Robinson v. Geibel, Kourvalinka v. Geiger, Root v. Genet v. Tallmadge Gennet, Nector v. < George v. Baker V. Goldsby , Perkins v, Georgetown Bank, Smith v. Section 444 503, 504 243 495 24 883 740 216 445 8, 11, 616 636 485, 534, 562, 577 353 105 603 669 333 241,244 497 487 586 491 10 574 Georgetown College v. Browne, 99, 141, 191 Gerriah v. Black 663 V. New Bedford Inst, for Sav. 624, 625 , Ricker v. 649 Gerry v. Howe 665 Getzandaffer v. Caylor 358 Gherke, Deck v. 300 Gibbens v. Peeler 622 Gibbons, Ishara v. 577 636 711 Gibbs, Cooke v. 683 , Weeks w. 676 691, 717 Gibson, Brown v. 24 145 V. Farley 462 Giles V. Dyson 669, 691 V. Ferryman 663 Gill, Goods of 118, 148 , Green v. 327 , Perry v. 234 V. Roberts 528 , Tomlinson v. 661 Gillett V. Hutchinson 684 , Needham v. 237 Gillies, Smither v. 692, 693 V. Smither 692, 693 Gilman v. Gilman 496, 565 V. Healy 433 581, 585 , Nearpass v. 762 Gilmore v. Hubbard 433 Gilpin V. Lady Southampton 705 Gilson V. Hutchinson 622 Ginn v. Collins 755 XXXll TABLE OP CASES. Gittings, Worthington v. Gladson v. Whitney Glancy, Fitzgerald i>. Glaucius V. Fogel Gleason, Burk v. Glenn v. Smith Glines v. Weeks Glover v. Heath Godbold V. Koberts Goddard v. Abbott , Alden v. , Briers v. V. Goddard , Shook V. Godaalve, Cox v. Going V. Emery Golbins, Beynon v. Gold, Grosvenor v. , Hoffman v. Golden, McCosker v. Goldsby, George v. GoodaU V. Marshall V. Tucker Goodell, Plimpton v. , Stevens v. Goodenough, Dewey v. Goodman, Washburn v. V. Winter Goodnow 1'. Warren Goodrich v. Treat Goodwin, Ex p. V. Goodwin , Miller v. Goodyear, Prov. Eub. Co. v. , Rubber Co. v. Gordon, Drew v. , Townsend v. , Wilkinson v. Gore, Harvard College v. Gorton v. Gregory Goss, Brooks v. , Newcomb v. Section 34, 301 328 62 588 381 211, 242 300 730 684 99, 187 756 219 137 288 848 331 76 717, 718 188 120, 129 491 678 678 631, 636 632 120 593, 595, 698, 606, 609 560 Goss, Schmaunz v. 630 121 359 755 654 357 437 379 251 123 39, 40, 42 697 340, 756 414, 648, 690, 696, 717 500 Gould, Chicago, Burl. & Qu. R. R. Co. V. 94, 103 , Commonwealth v. 485 V. Emerson 356 V. Hayes 680 , Knight V. 582 , Rose V. 483 i;. Tingley 415 Go vane v. Go vane 141 Graff, Ensor v. 40, 42 Grafton v. Beal 115 Graham v. Davidson 318 V Houghtalin 5 , Powell V. 659 V. Pub. Adm'r 553 Section Granbery v. Mhoon 24 Grand Trunk Ry. Co., Needhara v. 370 Granger v. Bassett 758 742 487 Grant v. Chambers 339 , Hier v. 762 , Pinkham v. 248 V. Reese 423, 546 V. Shurter 600 105, 106 Grant Coal Co. ». Clary 18, 477 Granthier v. Williams 181 Gratiot, Child v. 93 Gratz V. Bayard 593 Gray, Carpenter v. 300 16 V. Henderson 331 692 441 Graysbrook v. Fox 1,676 Green, Adams v. 332 , Amory v. 745 , Burditt V. 737 , Coggeshall a. 90 472 V. Creighton 682 w. Dyer 416 V. Gill 327 V. Hanbury 275 , Hay V. 528 , Hunter v. 491 , McKay v. 711 V. Nelson 722 , Phillips V. . 191 , Roanoke Nav. Co. v. 111, 112 420, 486 V. Smith 654 Greenhough v. Greenhough 192 Greening v. Sheffield 656 Greenleaf v. Allen 652, 653 Greentree's Est. 298 Greenwood ?;. McGilvray 413 699 Greese, Richardson v. 481 Gregg V. Wilson 87 Gregory, Coward v. 674 , Gorton v. 697 Gresham v. Pyron 228 Greville, Warwick ». 162, 167 168, 173 Grew V. Burditt 742 Griffith u. Beecher 328 V. Coleman 150, 173 V. County Bank 467 V. 'Franklin 685 V. Frazier 26 , Huntley v. 387 , MoUan v. 489 V. Vertner 22 Griffiths V. Hamilton 582 TABLE OF CASES. XXXIU Section Section Grimbell v. Patton 560 Hailey v. Haney 145 Grimes, Bomfard v. 645 Halliday v. Du Bose 190 V. Talbert 56, 58, 69 Halsey, Forbes v. 473 Grimke, Drayton v. 234 Halstead v. Tyng 761 Grimstead v. Shirley 372 Halsted v. Meeker 441, 603 Grinnell v. Baxter 543, 715 Ham, Mason v. 459 Griswold v. Cliandler 315, 669 Hamersley, Jones v. 229 Grognard, Normaud v. 317, 660, 563, Hamilton, City Nat. Bank v. 622 577 , Crawford v. 593 Grosvenor v. Gold 717, 718 , Griffiths V. 582 Grout V. Hapgood 462 V. Hamilton 765 Grove, Nusz v. 87, 138, 139 , Irwin V. 361 Grover v. Grover 621 w. liane 627 Groves v. Perkins 499 , Reynolds v. 736 Gruver, Frankenfield v. 615 Hammel, Den v. 23 Guavas, Ellis v. 339 Hammett, Severance v. 401 Guie, Ash v. 764 Hammon v. Huntley 688, 736 Guild, Robinson v. 630 Hammond, Bailey v. 600 , Smith V. 551 , Commonwealth v. 680 Guillow, Carey v. 675, 676 , Dorsey v. 690 Guldin's Est. 77, 191 — — V. Granger 487 Gunter, Sally ». 34 V. Jethro 389 Gurr, Elliott v. 120, 123 , Raborg v. 18,47 Gurley, Welch v. 720 Hanbury, Green v. 275 Gustin, Brattle v. 216 Hancock, Matter of 9 Guthart, Kline v. 636 V. Haywood 604 Guy, Doe v. 679 V. Hubbard 716 Guyton v. Flack 241 , Parsons v. 691 Gyger's Est. 77, 133, 136 V. Prowd 697 , Scott V. 465 543, 670 Hancom v. Alien 673 H. Hand v. Marcy 511 , Rock V. 433 Haas V. Child 229 Handy v. Collins 312, 318 332, 646 Habergham v. Vincent 33 Haney, Hailey v. 145 Hackett, Adams u. 604 Hanford, Knapp v. 588, 679 , Stone V. 625 Hankey, Tatnall v. 552 Haddow v. Lundy 550 Hanly, Flitner v. 394, 415 Hadsell, Richardson v. 754 Hannan, Rankin v. 763 Hahlin, Matter of 87 Hannum v. Day 459 Haight V. Brisbin 300 Hapgood, Grout v. 462 Hailey v. Wheeler 656 V. Houghton 393 657, 668 Haines v. Price 690 , Hunt V. 19 Hale V. Burr 630 , Jennison v. 428, 462, 632, 640, V. Hale 379 541, 544, 715 , Hobsou V. 666 Happiss V. Eskridge 120 , Pitts V. 363, 647 Haraden v. Larrabee 517, 521 , Washburn v. 316, 381 Harberger's App. 263 Hall, AUen v. 722 Hardenbergh, Osterhout v. 698 , Baker v. 885 Hardin, Bradley v. 92 V. Browder 349 Harding v. Lemoyne 328, 334 , Callaghan v. 544 V. SmitU 416 V. Cusliing 270, 666, 725 Hardwood, Jacomb v. 585 V. Elliott 247 Hardy v. Call 745 V. Hall 491 V. Chesapeake Bank 757 , Morse v. 613, 640 546 , Stuyvesant v. 686 V. Smith 509 V. Thayer 10, 11, 118 V. Yarmouth 426 , Walker v. 322 Hargreaves v. Wood 200 , Wemse v. 301 Harkness, D'Huart v. 662 XXXIV TABLE OP CASES, Section SecHon Harlan's Est. 43 Fastings, Chapin v. 57, 216 Harlow v. Dehon 737 Hastings (Lord) v. Sir A. Doug- Harman v. Harman 403 lass 375 , Wilson V. 859 ■ Haston v. Castner 6-22 Harmon, Stills v. 722 Hasty V. Johnson 458, 469 Harness, Norwood v. 442 Hatch V. Proctor 248 617, 618 Harper v. Smith 234 , Read v. 647 Harrell v. Willis 527 Hathaway, Chase v. 6, 7, 12, 19 Harrington, Bernard V. 647 427 59, 60, 61, 471 V. Russell 722 461 V. Valentine 828 V. Keteltas 423 Haven, Fay v. 560 562, 563 , Pattee v. 635 , Livermore v. 555, 575 V. Tremblay 760 Haverhill Loan, etc. Ass V. Cronin Harris, In re 546 416 V. Ferguson 389 Haviland v. Bloom 498 , Langley v. 283 Hawes v. Smith 661 V. Martin 545 Hawke, Poplin v. 84 , Merrill v. 22 Hawkes, Haskins v. 243 , New Eng. Ins Co. w . 64, 562, Hawkins v. Robinson 145 563, 665, 568, 569, 573 , Tuckey v. 836 V. Peabody 602 Hawling, Skelton v. 691 , Tucker v. 18 Haxall V. Lee 145 Harrison v. Clark 23 Hay, Goods of 124 V. Conlan 643, 644 , Brown v. 157 , Hix V. ■ 84 528 V. Johnson 761 754 , McMahon v. 90 Hayden, New Hav. & Northampt. V. Neely 763 Co. w. 600, 649 V. Righter 603 Hayes, Dickenson v. 17 V. Rowan 34 , Gould V. 680 V. Sampson 643 5,145 , Wilkinson v. 91 Hayman, Blood v. 473 Hart V. Soward 128 Hayne v. Wolfe 212 V. Stephens 383 Haynes, Goods of 98 V. Ten Eyck 321 V. Meeks 216, 309 Hartford & N. Hav. R. R. Co. w. 480 Andrews 59, 61, 66 Hayron v. Wolfe 113 Hartman's App. 548, 602 Hays V. Jackson 234 402, 465 Hartman v. Alden 761 Hayter, Hickey o. 691, 692 , Meyer v. 293 Hay ward, French v. 416 Hartnett v. Wandell 105, 106, 108, 109 V. Hayward 383, 498, 528, 721 Hartt, Russell v. 257 V. Kinsey 671 Hartzell v. Commonwealth 208 V. Place 216 Harvard College v. Amory 673 Haywood, Hancock v. 604 V. Gore 39, 40, 42 , Sigler V. 697 Harvey, In re 120, 131 Hazard v. Engs 539 V. Hilliard 760 Hazleton, Richardson v. 730 V. Richards 577 V. Valentine 580, 783 Harwood, McKim v. 318, 321 Head, Dawes v. 675, 728 0. Oglander 711 V. Drake 407 Hasbrouck v. Hasbrouck 320 Heald, Johnson v. 752, 757 , Lefever v. 441 Healds, Shirley v. 614 Haskell v. Hervey 756 Healey, Pennington v. 668 Haskins, Cutts v. 13,45 Healy v. Buchanan 52 V. Hawkes 243 433, 581, 585 13 39, 40, 45 Heapy v. Parris 701 Haslage v. Krugh 328 Heard v. Lodge 729, 733 Hasler v. Hasler 391 Hearne v. Kevan 491 Haslewood v. Pope 708, 710 Heath v. Chilton 583, 636 TABLE OP CASES. XXXV Section Section Heath v. Cook 663 Hill V. Alspaugh 181 , Glover v. 467 120, 129 , Stone V. 742 V. Henderson 676 V. Wells 467 V. Horton 40 Hedenberg v. Hedenberg 750 V. Hunt 387 Heilbrenner, Eeist v. 363 , Kelton V. 756 Heineman's App. 511 V. Mixter 735 Helier v. Casbert 653 , Smedley v. 692, 693 Hellawell v. Eastwood 352 V. Truly 764 Hellier, Brotherton v. 314 V. Tucker 678 V. Casbard 652 , Walker v. 407, 494, 761 Helm, Atwell v. 283 Hillborn v. Hester 120, 128 Helms V. Kearns 755 Hilliard, Harvey v. 760 Hemenway v. Gates 740 Hilligsberg, Succ. of 686 Henderson v. Clarke 69 Hillman v. Stevens 328 , Gray v. 881 Hills V. Mills 91 , Hill V. 676 Hilton, Bailey v. 34 , Miller v. 389 , Kings V. 674 , Painter v. 24 Hinclicliffie v. Hinchcliffe 480 , Sconce v. 754 Hinehinbrook, Shipbrook V. 690 Hendrick v. Cleaveland 24 Hinton, Earle v. 690 Henfrey v. Henfrey 106 Hirst, Strang v. 636 Hennion v. Jacobus 504 Hitchcock, Field v. 549 Henry v. Dilley 680 Hix V. Harrison 84 V. Estey 327 Hoagland v. Schenck 503 , Pearson v. 663, 691 Hoar V. Marshall 722 Henshaw v. Blood 319 , Russell V. 213 , Corcoran v. 644 , United States v. 690, 696 V. Whitney 528, 722 Hobart v. Stone 482, 486 Hensloe's Case 1, 4, 84 198, 199 Hobson V. Hale 655 Henson v. Ott 332 Hodgdon v. White 643, 670 Herlakenden's Case 345 Hodge, Robinson v. 729, 730, 731, 738, Heme v. Myrick 710 739 Herrick v. Big Rapids 425 Hodgson V. De Beauchesne 663 V. Minn . etc. R. R. Co. 370 HoflFman v. Gold 188 Herring, Clark v. 679 Hoit V. Russell 760 Hertell, Bogert v. 831 333, 686 Holbrook v. Bentley 261 Hervey, Haskell w. 766 V. Lackey 604 Heslop, Goods of 307 , Shumway v. 34,50 Hesson v. Hesson 592 V. Waters 261 Hester, HiUborn v. 120, 128 V. White 643 Hettrick v. Hettrick 378 Holcomb V. Beach 631 Heusner, Schmidt v. 311 V. Phelps 560 563, 565, 579 Heward v. Slagle 101 Holden v. Fletcher 314, 652 Hewlett V. Fraraingham 690 I). McMakin 612 Hewson, Chamberlain v. 498 , Williams v. 588 Hichbom, State v. 396,415 Holiday v. Boas 485 Hickey v. Hayter 691, 692 Holland, Bowdoin v. 59, 67, 69, 662 Hicks V. Willis 461 V. Clark 691 Hier v. Grant 762 V. Prior 314 Higgins's Trusts 690 HoUenbeck v. Berkshire R. R. Co. 369 High, Patterson v. 120, 128 V. Pixley 378 V. Worley 715 , Stillman v. 647 Higham, Atty.-Gen. v. 691 HoUings, Moran v. 369 Hignutt V. Cranor 422 HoUis V. Smith 872 Hildebrand's App. 380 , Tliayer v. 739 Hildebrant v. Crawford 762 Hollister v. Young 766 Hildreth, Emery v. 29, 30, 59, 61, 64 Holmdel, Slate v. 425, 426 , Richardson v. 628 Holmes, Pet. 214 V. Thompson 701, 717 V. Cock 262, 279 XXXVl TABLE OP CASES. Section S jctlon Holmes v. Holmes 507 Hubbard, Gilmore v. 433 , Monroe v. 543 544 632, 634 , Hancock v. 716 , Moore v. 315, 328 V. Johnson 756 V. Taber 426, 428 , Rand v. 449, 450 614, 615, 616, Holyoke v. Haskins 13, 39, 40, 46 618 ,630 Homer, Mason v. 387 Hudson, Brokaw v. 482 ,483 , Shelton v. 330, 587 V. Hulbert 468 , Thayer v. 86 104, 307 , Wilson V. 239, 241 248 Hoober, Karmane v. 477 Huger V. Dawson 690 Hooker »>. Bancroft 323 Huggins, Long v. 206 V. Olmstead 563 Hughes, Doe v. 331 Hooper, Foster v. 649 , Pub. Admr. v. 151 163 V. Hooper 528 Hulbert, Hudson v. 462 Hope, Brooks v. 724 Hull, Warrick v. 754 Hopkins; DuVivier v. 419 Hulse, Bodle v. 636 Hopkinson, Dennett v. 348 Hume, Whicher v. 553 Horn, Bank of Tennessee V. 682 Humes v. Wood 489 Homer v. McGaughy 480 Hummer, KMng v. 587 , SuUiTan V. 391, 393 Humphrey v. BuUen 120 Horsam v. Target 718, 719 Humphreys v. Humphreys 618 Horskins v. Morel 175 V. Ingledon 618 Horton, Hill v. 40 Hunneman, Andrews v. 490, 491, 493 Horwitz, McCoy v. 441 Hunt, Curtis v. 691 Hosick, Taylor v. 252 V. Frost 471 Houck V. Houck 331 19 , Shultz V. 18, 39, 47 , Hill V. 387 Houel V. Barnes 587 V. Kearney 636 Houghtalin, Graham v. 5 , McBeth V. 191 Houghton, Hapgood v. 393 657, 65S , McFadden v. 598 Houston, Lyons v. 719, 720 , Mootrie v. 229 Hovey v. Blakeman 590 , Moultrie v. 554 V. McLean 262 V. Stevens 618 V. Newton 652 V. Whitney 635 How V. How 643 Hunter v. Green 491 Howard, Church v. 762 V. Kittredge 766 97 587 V. Dougherty 229 , Willey V. 766 V. Francis 489 604, 505 Huntley v. Griffith 387 , Gerry v. ■605 , Hammon v. 688 736 500 Hunton, Stark w. 671 , Oglesby v. 671 Hurlbut V. Meeker 754 V. Powers 684 Hurtt V. Fisher 332 , Record v. 578 Huse V. Brown 394 , Vaughan v. 491 Hussev V. Jewett 402 , Watts V. 541, 544 V. White 699 , White V. 333 Huston's App. 503 504 Howard Sav. Instit., Plume v. 14, 25, Hutchins v. Adams 373 636 26, 28, 48, 63 V. State Bank, 84, 445, 471, 473, Howe, Clarke w. 636 565 569 V. Lord Dartmouth 673 Hutchinson, Gillett v. 684 V. Merrick 758 622 V. Peabody 281 Hutton V. Rosaiter 694 , Reed v. 119 136, 138 Hyde's Est. 92, 187 192 Howell, Davis v. 602 Hyde, Curling v. 720 V. Price 711 , Sagittary v. 709 , Trewinian v. 661 Tylden v. 331 Howland, Jenks v. 19, 20, 28 V. Wab., St. Louis, &o. R. R. Hubbard, Babcock v. 588 Co. 370 122, 129 V. Clarke 640 TABLE OP CASES. XXXVll ±. Section Section Jeffs V. Wood 481 Ide V. Pierce 624 Jenkins v. Jenkins 420 Igleliart, Evans v. 847, 502 , Jones V. 656 Ikelheimer ;;. Chapman 16 V. Plume 691 Illinois Cent. R. E. Co. v. Cragin 59, 66 V. Stetson 643, 645 Inches v. Dickinson 653 , Stoolfoos V. 24 Ingerman, Scherer v. 755 V. Wood 269, 655 677 , 700, 740 Ingledon, Humphreys v. 618 Jenks V. Howland 19, 20, 28 Ingraham, Clapp v. 360 Jenney v. Wilcox 741 Ingram, Thrasher v. 491 Jennings v. Newman 684 Inman, Redden v. 754 Jennison v. Hapgood 428, 462, 532, Innes, Williams v. 691 540 541 , 544, 715 Inscoe, Davis v. 197, 199 Jethro, Hammond v. 389 Ipswich Manuf. Co. v. Story 485, 628 Jewell, Crooker v. 445, 451 Irby, Miller v. 420 , Morrison v. 742 Iresdale v. Ford 171 Jewett, Hussey v. 402 Irwin V. Hamilton 861 V. Jewett 685 V. Scriher 14, 17, 46 V. Smith 614 , 717, 718 Isham V. Gibbons 577 , Tarbell v. 361, 634 Isted V. Stanley 113 , Weeks v. 120, 131 Ivat V. Finch 750 Jochumsen v. Suffolk Sav. Bank 14, Ives V. Ashley 473 26, 626 , Bennett v. 239, 241, 394,396,400, Johns V. Johns 614 404 Johnson's Est. Johnson, In re 691 610 J. V. Beardslee 736 V. Bridgewater Iron Manuf. Jackman, Marlett v. 593, 609 Co. 359 Jackson, Ames v. 543, 544 V. Copeland 560 , Brooks V. 335 , 536, 548, 731 V. Dexter 766 , Clayw. 118 , Gage V. 631 , Draper v. 383 , Harrison v. 761 , Hays V. 234 402 465, 711 , Hasty !;. 458, 469 ' 384 V. Heald 752, 757 V. Paulet 109 756 764 528 , Ranisden v. 697 459, 467 V. Reynolds 549 , Sohier v. 640 , Rowe V. 499 , Wheeler v. 631 V. Shaffer 585 • V. Whitchcott 661 V. Thompson 34 333 Jacobs, Choate v. 729, 730, 731 Johnston v. Smith 60,65 Jacobus, Hennion v. 504 Jolly, Union Nat. Bank v. 682 V. Jacobus 442 Jones V. Beytagh 179 Jacomb v. Hardwood 585 V. Carpenter 742 Jagger v. Bird 357 , Carpenter v. 195, 196, 197 James v. Adams 252 , D'Arusment v. 26 V. Dean 337 V. Hamersley 229 V. Morgan 565 V. Jenkins 656 , Pettifer v. 139 V. Jones 97, 284, 327, 678, 757 Jameson v. Martin 697 , Knox V. 552 Jaquin, Davis v. 74 , Miller v. 16, 59, 62 Jaquith, Marshall v. 627 V. Mossop 742 Jarman, Digger v. 587 268, 314 Jarnagan, Barnes v. 683 V. Tanner 680 Jarratt, Flemraing v. 247 , Van Meter v. 315 Jarvis v. Rogers 742 V. Walker 610 Jeflerys v. Small 389 V. Ward 502 Jeflersonville R. R. Co. v Swayne 59, | V. Wilkinson 683 62, 66 1 ■ , Willis V. 122 129, 236 XXXVIU TABLE OP CASES. Section Section Jordan, Childs v. 643 Kent, Sheppard v. 708 V. Thompson 256 V. Somerville 493 Josselyn, Studley v. 469 Kenyon v. Worthington 705 Joy V. Campbell 590 Kerr v. Bosler 504 Joyce, Dozier v. 12 585 , Shreve v. 585, 586 ,736 Kevan, Hearne v. 491 Judge of Probate v. Chamberlain 120 Keyes, Thayer v. 734, 740 181 Kilbourn v. See 212 V. Claggett 208 217 Kimball, Allen v. 241, 244 V. Lane 690 V. Currier 622 Judges of Erie, People v. 699 , Smith V. 736 Judson V. Gibbons 636 Kimpton, Betts v. 387 V. Lake 34 Kinard v. Young 675 , Nichols V. 481 Kinder, Lank o. 585 Julian, Moses v. 10,11 King's App. 379 Justices, &c. V. Sloan 697 King V. Berry , Buttrick v. V. Clarke 440 632 678 K. V. Lyman V. Talbot 243 444,604 Karmane v. Hoober 477 V. Thorn 661 Kavanaugh v. Thompson 82 Kingan's App. 534 Kean, Stanley i;. 34 Kingham v. Lee 674 Keane's Est. 196 294 Kingman v. Perkins 620 Kearney v. Boston & Worcester V. Soule 656 657, 658, 660 R. R. Co. 369 Kings f. Hilton 674 , Hunt V. 636 Kingsbury, Leland v. 728 V. McKeon 420 V. Wilmarth 380 V. St. Paul Missionary Soc. 131 Kingsland v. Scudder 539 V. Turner 160 Kingston v. Gray 692 Kearns, Helms ;;. 755 Kinna v. Smith 339 Keating v. Condon 337 Kinney v. Ensign 628 Keeler, Wilder v. 708 Kinsey, Ammidotrn v. 632 , Wilson V. 314 , Hay ward v. 671 Keeling, Dunn v. .331 Kirby v. State 691 liell. Fowler v. 128 Kirkpatrick's Est. 206 Kelland, Chaffe v. 686 Kirkpatrick's Will 98,99 Kellberg's App. 299 Kirtlan's Est. 102, 195 Keller, Bird v. 339 Kitner, Messinger v. 24 V. Stuck 420 Kitson, Conyers «. 139 Kelley, Peaslee v. 699 Kittel V. Railroad Co. 766 Kellogg, Palmer v. 758 Kitteredge, Lawrence v. 560, 562, 577 Kelly's Est. 192 233 Kittredge v. Folsom 616 Kelly V. Boston & Maine R. E. Co. 368 , Hunter v. 766 V. West 23 252 Kittridge, Quigg ;;. 683 Kelrock v. Nicholson 585 Kline v. Guthart 636 Kelton V. Hill 756 Kling V. Hummer 587 Kempton, Bates v. 621 Knapp, Brown v. 504 Kendall, Loring v. 547, 726 731 V. Hanford 588, 679 , Tlmrlough v. 414 701 Kendrick, In re 543 64, 358 Keuley v. Bryan 463 B. Lee 742 Kennedy's App. 543 V. Windsor 518, 620 Kennedy's Est. 447 Knecht's App. 489 Kennedy v. Standard Sugar Ref. 369 Kneil v. Egleston 627 Kenney, Ferrin v. 685 Knight V. Brown 756 Kenny v. Udell 498 , Chittenden v. 170 Kent, Conant v. 516 618 V. Gould 582 V. Dunham 497, 503, 505, .506, 679, , Rawson v. 756 740 Knighton, Thomas v. 197, 215 TABLE OP CASES. XXXIX Section Knights, Campbell v. 459 Knowles, Foot v. 857 Knowlton v. JohnBon 528 V. Reed 598 Knox V. Bigelow 767 V. Jones 552 , Little V. 275 Knox & Line. R. R. Co., Neal v. 867 Koehler v. Adler 762 Kohler w. Knapp 64, 858 Kooystra v. Buyskes 205 KouTalinka v. Geibel 883 Kropffw. Poth 685 Krout's App. 518 Krugh, Haslage v. 328 KUckens, Parker v. 580 Kurtz, Steel v. 510 Lacey's Est. 548 Lackey, Holbrook ti. 604 Ladd, Farrelly v. 367 , Perkins v. 242 Lady Elibank, Montolieu v. 484, 498 Lady Southampton, Gilpin v. 705 Lake, Judson v. 34 Lalouette, Bishop v. 67 Lamb, Day v. 651, 722 V. Lamb 536 Lambell v. Lambell 139 Lambert, Burnley v. 700 , Smith V. 495, 496, 679 Lampet's Case 491 Lamport v. Beeman 709 Lamson, Pratt v. 487 V. Schutt 467, 670 Lancaster Sav. Instit., Shoenber- ger V. Lane, Fisher v. , Hamilton v. , Judge of Probate i>. Lane 630 719 627 690 762 , Wheatley v. 361, 643, 647, 674, 690 Lang, Mann v. 691 Langdon, Lewis v. 612 V. Potter 6.38 Langley v. Dodsworth 754 V. Harris 288 Langmaid, Cochran v. 760 Langmead, Bragner v. 701 Lank v. Kinder 585 Lanning v. Lanning 761 Lanoy v. Duke of Athol 709 Lansdovf ne v. Lansdowne 507 Lansing, Elmendorf v. 692 Lantz V. Boyer 475 Larned v. Bridge 475 Larrabee, Haraden v, , Poor V. V. Tucker Lathrop v. Smalley M. Smith , Stebbins v. Latine v. Clements Laughlin v. Lorenz Law V. Law Section 517, 621 459 519 441, 443 119, 145, 147, 159 149 678 611 603, 707 Lawrence's App. 51, 194, 196, 206, 579 Lawrence v. Kitteredge 660, 562, 577 Wellman v. Lawton ;;. Lawton Layton, Rock v. Lazonby v. Rawson Leach's Case Leach v. Pillsbury Leafs App. Leaf V. Coles Learned, Colt v. , Pollock V. Leavitt, Brown v. , Crosby v. Le Baron, Thomas v. Lee, Ex p. , Bliss V. V. Chase V. Cook V. Gardner , Haxall V. , Kingham v. , Knapp V. V. Riedon V. Wells , Williams v. Leedom v. Lombaert Lees V. Wetmore Lefever v. Hasbrouck Leggate v. Moulton Leggatt V. Leggatt Leggett V. Hunter Legrange, Jackson v, Leigh, Forrester v, , Lutkins v. V. Smith Leighton, Rock v. Leishman, Wilson v. Leland v. Felton V. Kingsbury Le Mason v. Dixon Lemoyne, Harding v. Lempriere, De La Garde v, Lenoir v. Winn Lentz V. Pilert Lenz V. Prescott 459, 461 348 691 691 504 241 386, 694 599 649 505 675 59,68 461 402, 711 407 241 643 700 145 674 742 847 7 679 24 51, 59, 62, 67 441 366 166 587 84 710 710 543 655, 690, 697 703, 715 361, 485, 628 728 362 328, 334 499 690 185 715 Leonard v. Columbian Steam Nav. Co. 68 Leslie, Craig v. 332 Lester v. Lester 683 Levan's App. 91, 165 xl TABLE OP CASES. Section Section Leverett v. Dismukes 78,118 Loring v. Kendall 647 726, 731 Levering v. Levering 293 ,295 304 V. Steineman 680 Lewin v. Lewin 489 V. Woodward 503, 504 707 Lothrop's Case 235 Lewis's Est. 277 Lott V. Meecham 491 Lewis, Matter of 225 Loucks, Averill v. 708 V. Bolitho 619 627 Louisville, New Alb. & Ch. Ey Co. , Brown v. 765 V. Thompson 755 , Cook V. 101 389 Love, Dilley v. 757 612 Lovell V. Minot 673 V. Lewis 34 Lovering v. Minot 503 , Masters v. 719 670 V. Smitii 491 Lovett V. Matthews 24 Libby v. Cobb 224 Low V. Bartlett 678, 737, 741 Liddell v. MoVickar 544 , Morse v. 716 Lidderndale v. Bobinson 275 , White V. 142 Liford's Case 345 Lowe, Banner v. 359 Light V. Merriam 687 Lowell's App. 497 Lincoln v. Wood 435 Lowell Eive Cent Sav. Bank, Fobs Linden, Parker v. 338 V. 620, 624, 626 Lindsay, Ambler v. 199 Lowerre, Coope v. 83, 89, 103, 165 Ling, Sutter v. 382 Lowraan v. Aubrey 754 Linton, Strattou v. 161, 177 Lowndes v. Dickerson 344 Linzee, Fuller v. 387 504 Lister, Sikes v. 332 Luchterhand v. Sears 654 Litchfield V. Cudworth 471 Lucy, Branger v. 754 , Yeackel v. 471 ,473 Ludlow V. Ludlow 592 Litterall v. Jackson 384 Ludlum, Buckingham v. 598 600, 601 Little, Corlies v. 587 Ludwig V. Blackinton 415 , Devling v. 585 Lum V. Reed 22 V. Knox 275 Lund, Roberts v. 766 V. Sinnett 50, 64, 67 Lundy, Haddow v. 550 Littler, Elder v. 675 ,676 Lunt, Mitchell v. 239 241 243, 675 Littlewood, Atkinson v. 480 Lupton V. Lupton 504 Lively, Lynch v. 91 ,140 Luscomb V. Ballard 593 656 657, 658 Livermore v. Haven 655 ,575 Lussen v. Timmerman 171 Livingston v. Murray 331 Lutkins v. Leigh 710 V. Newkirk 711 Luttrell, Gale v. 689 , Reade v. 622 Luyton, Prink v. 697 Lockart v. Northington 331 Lyman, King v. 243 Locker, Loftus v. 700 , Parsons v. 552, 577 Lockman v. Reilly 341 Lynch, Gray v. 441 Loder v. Whelpley 762 V. Lively 91, 140 Iiodge, Heard v. 729 ,733 Lynde, Brooks v. 496, 740 V. Weld 613 Lyndsey, Croft v. 672 Loebenthal v. Baleigh 476 Lyon V. Lyon 754 Loftus V. Locker 700 Lyons, Exp. 214 Lorabaert, Leedom v. 24 V. Houston, 719, 720 Long's Est. 671 Lytle V. Bond 766 Long V. Huggins 206 V. Symes 195 Longbottom v. Berry 352 M. Look V. Kenney 629 699 Mabin v. Knighton 93 Lord Dartmouth, Howe v. 673 Mackie, Coates v. 493 Lord Dudley v. Lord Warde 353 Maey v. Raymond 459 Lord Elibank, Murray v. 386, 499 Maddox ». Dent 832 Lord Hertford v, Zichi 713 Madeley, Gaters v. 383 Lorenz, Laughlin «. 611 Madigan, Burnes v. 760 Loring v. Cunningham 332 Madison v. Shockley 240 TABLE OP CASES. Xli Section Magoffin V. Patten 504 Magraw, Munnikhuysen v. 226, 227 Magruder v. Peter 331 , Semmes v. 670 Mair, Utterson v. 91, 713 Makepeace, Pond v. 665, 678 Male, Vail v. 309 Malin V. Bull 684 Malloy, Matter of 278 MandeviUe, Burwell v. 610 167, 262 Manlgle's Est. 548 Mariley, Goods of, 106 Mann v. Lang 691 , White V. 239, 241 , 245, 249 Manning's Case 829 Manning v. Am. Board For. Miss. 546 , Smith V. 629 Mansfield v. Curtis 600, 649 , Woodrow V. 761, 758 Mapes, West v. 80 Mara v. Quinn 691 March, Blainfield v. 618 Marchant, Plumer v. 693 Marcy v. Araazeen 760 , Hand v. 511 V. Marcy 262, 570 , Newell V. 82 Marlatt v. Warwick 761 Marlett v. Jackman 693, 609 Marr v. Rucker 691 Marrett, Veazie v. 740 Marsh, Alvord v. 248, 617 , Munn V. 622 V. Ohver 592 V. People 308 Marshall, In re 546 , Barclay v. 324 V. Berry 609, 620 621, 627 , Blue V. 668 V. Broadhurst 664 V. Carson 473 , Goodall ». 678 , Hoar V. 722 V. Jaquith 627 , Trimble v. 543 473 Marston, Clements v. 760 , Wolverhampton Bank v 445 Martin's App. 398 Martin v. Clapp 422 V. Crump 636 V. Dry Dock, Bast Bdwy. , &c. E. R Co. 235 , Harris v. 645 , Jameson v. 697 V. Martin 503, 592, 705 V. Smith 340, 628 , Wheatley v. 433 Martindale, Anderson v. 636 Section Martindale, Moore v. 700 Marvel v. Babbitt 462, 632, 633 , Maverick v. 762 Mason, In re 646 V. Daly 463 V. Ham 459 V. Homer 387 V. Norcross 636 Massachusetts Bank u. Oliver 6.30 Masters v. Lewis 719 Mateer, Commonwealth ;. 196 Mather, Alsop v. 660, 664 , Cluett V. 136 Mathes, Dearborn v. 665 Matthews v. Douthitt 16, 216 , Lovett V. 24 V. Turner 328, 490, 493 Matthewson v. Strafford Bank 630 Mattice, Cluett v. 207 Maule, Watkins v. 448 Maupay's Est. 252 Maurer v. Naill 138 Maw, Elwes v. 354 Maxam, Wilbur v. 640 Maxwell, In re 196 , Ex p. 272 , Walker v. 636 May, Clark v. 717 Mayer, Darby v. 34 , Potts V. 762 Mayo V. Bentley n 403 , Smith V. 402 McArden, Worth v. 111 McArthur's Est. 91 McAvoy's Est. 594 McBain v. Wimbish 43 McBeth V. Hunt 191 V. Smith 656 McCabe v. Fowler 441 McCall V. Peachy 316 MeCamber, Ames v. 580 McCaw V. Blewitt 200 McClain, Shepherd v. 761 McClanahan v. Davis 491 McCIellan's App.' 133, 191 V. Filson 39, 393 V. Yerry 461 McClelland, Aldridge v. 296, 304, 541 McClintock's App. 345 McCluer, WiUoughby v. 320 McCluskey v. Provident Instit. 625, 627 McCombs, Acheson v. 491 MeConnell v. McConnell 240 McCormick's App. 602 McCosker v. Golden 120, 129 McCoy V. Horwitz 441 MoCrary, Crossan v. 51, 184 McCreary v. Taylor 92 McCully's Est. 164 McCune's App. 619 xlii TABLE OF CASES. McDaniell, Drew v. V. Parks MeDaniels v. McDaniels McDonald, Westcott v. McDonnell v. Prendergast McDougall, Torrance v. McElden v. McKenzie McFadden v. Hunt McFarland, Bergen v. , Brown v. , Cope V. V. Stone McFeely v. Scott McGaugliy, Horner v. McGeocb, Robertson v. McGill V. McGill McGilvray, Greenwood v. McGlinsey's App. McGooch V. McGooch McGrath, Phillips v. V. Reynolds McGregor v. Donelly V. McGregor , McKinley v. McGregory, Pinney v. Section 760 643 668 458 197 252 656 598 328 McGuin, Clarke v. Mclntier, Paine v. Mclntire v. Morris McKay v. Green McKee, St. John v. McKeen v. Frost McKennan'e App. McKenzie, McElden v. McKeon, Kearney v. McKim V. Aulbacb V. Bartlett V. Blake V. Demmon V. Harwood McKinley v. McGregor McKinney v. Watson McKinnon's Est. McKinnon v. Riddle McKnight v. Walsh , Sill V. McLaughlin v. Newton McLean. Hovey v. V. Robertson V. Weeks McLellan's App. McLellan t'. Crofton McLeord, Stent v. McMahon v. Harrison McMakin, Holden v. McMillan, Osborne v. McNair's App. McNair, Darrah v. McNeel's Est. McNeillie v. Acton 24, 29, 328 21,45 480 197 644 413 393, 538 74, 134 767 620 752 86,95 647 57, 59, 60, 61, 64 736 730 688 711 539 271 265 656 420 588, 590, 732 733 733 288 813, 321 647 541 187 639 443, 497 86, 88, 90 420 262 711 415, 622, 627 549 749 518 90 612 656 590 511 315 664 Section McNichol V. Eaton 562, 675 McPherson, Matter of 431 ;;. Cunlifi" 24 McRae v. Farrow 587 McVicker, Liddell v. 544 Mc Willie V. Van Vacler 5 Meacham, Lott v. 491 , Sykes v. 741 Mead, Minor v. 319 452, 490 Meakings ». Cromwell 331 Meason, Ex p. 398 Mechanics, etc. Ins. Co. i;. Spang 650 Meeker, Cooke v. 503, 504 , Halsted v. 441, 503 — r-, Hurlbut V. 754 Meek^ Haynes v. Meetch, Miller v. 216, 309 195, 196 Mehring, Thornton v. 337 Melizet's App. 324, 548 Mercer v. Moorland 161, 174, 177 Merchant's Will 305 Merriam, Light v. 687 Merrick, Burnside v. 593, 595, 600, 602, 649 , Cother v. 358 , Howe V. 758 Merrill v. Harris 22 ■ V. New Engl. Ins. Co. 64, 562, 563, 565, 568, 569, 573 , Parsons v. 651 , Richardson v. 315 Merritt v. Dickey 604 V. Windley 492 Merryman, Elliott v. 471 Merwin, Allen v. 480 Mess, Claflin v. 622 Messinger v. Kitner 24 Metcalf, Fisher v. 735, 736, 740 Metropolitan Ry. Co., Newton v. 618 Meyer v. Hartman 293 Mhoon, Granbery v. 24 Mico, Haynes v. 480 Middlesex, Phillips v. 750 Middleton v. Crofts 55 , Polhemus v. 428, 541 Miles V. Boyden 497 Millard, Cheesebrough v. 709 , Robinson v. 279, 724 Millay v. Wiley 104 Millenovich, Matter of 318 Miller's App. 518 Miller v. Commonwealth 333 V. Congdon 506 V. Dorsey 543 ». Goodwin 654 V. Henderson 339 V. Irby 420 V. Jones 16, 59, 62 V. Meetch 195, 196 TABLE OP CASES. xliii Section Section Miller v. Montgomery 762 Moor V. Barham 160 V. Motter 757 Moore, Banta v. 562, 563 V. Reed 601 V. Boston 867 V. Towles 698 332 656 V. Holmes 315, 323 Milligan, Underwood v. 656 V. Martindale 700 Milliken, Montgomery v. 234 , Milward v. 587 Mills, Hills V. 91 V. Moore 168 , Milner i'. 653 V. Paroher 670 , Pomeroy v. 546 V. Philbrick 45 , Sears v. 416 , PoUexfen v. 709 , Stearn v. 691 , Prescott V. 114 Milne, Travis v. 603, 713 , Taylor v. 242 Milner v. Colmer 498 , West V. 848 V. Mills 653 , Williams v. 636 Milward v. Moore 687 Moorhouse v. Lord 553 Miner, Hastings v. 745 Moorland, Mercer v. 161, 174, 177 Minneapolis, &o. Ky. Co., Herrick Mootrie v. Hunt 229 V. 870 Moran v. Boilings 369 Minor v. Mead 319 More V. More 55 Minot V. Amory 496 Morehouse, Williams v. 315, 318 , Amory v. 503, 504 Morell, Horskins v. 175 , Boston Bank v. 528, 722 Morey, Richardson v. 501 , Gay V. 8, 11, 616 Morgan's Est. 103, 215. 233 , Lovell V. 673 Morgan v. Dodge 12, 22, 272 , Lovering v. 503 , James v. 565 V. Norcross 632, 633 , Quintard v. 207 Missouri Ry. Co., Willis o 370 V. Rotch 703, 715 Miteliell's Case 415 Morison, Telford v. 324 Mitchell, Burnham v. 767 Morong, Bigelow v, 516 618, 640, 745 V. Lunt 239, 241, 243, 676 Morrell e. Dickey 497 , Oakes v. 688 Morrice v. Bank of England 704, 705, V. Pease 619, 627 708 V. Rucker 742 Morrill v. Morrill 244 , Scott V. 699 , Southwick V. 459, 592 , Venable v. 234 Morris v. Chicago, Rock Island, Mixter, Hill v. 735 &c. R. R. Co. 370 Mockbee v. Gardner 445 , Mclntire v. 688 Moffatt V. Van Millingen 692 , Walker v. 715 Moffltt, Paine v. 728 Morrison's Goods 209 Mohler, Pollard v. 52, 196, 199 Morrison, Blanck v. 73, 74, 207 , Strauber v. 754 V. Jewell 742 Mollan V. Griffith 489 , Palmer v. 332 Monck, Broome v. 654 , Penrod ii." 363 Monell V. Monell 590 , SifEord u. 287 Monius, Childs v. 661 Morse, Aiken v. 419, 467, 468 Montague v. Cameal 234 V. Hall 613, 640 652 (,'. Low 766 V. State 431 , Prescott V. 679 Montford v. Van Arsdalen 697 ; Van tine v. 501, 722 Montgomery, Goods of 106 Morton v. Dry Dock, E. Broadway, i\ Dunning 324 & B. R. R. Co. 23 , Miller v. 762 Moseley, Biddison v. 296, 304 V. Milliken 234 , Sessions v. 620, 621 Montolieu, Elibank v. 484, 498 Moses, Clift V. 333 Moody V. Erving 684 , Ewi7ig V. 224 475 V. Julian 10, 11 V. Moody 176 V. Murgatroyd 342, 708 17. Van Dyke 234 Mossop, Jones v. 742 Moon V. Andrews 695 Mothland v. Wireman 577 xliv TABLE OP CASES. Mott V. Aekerman Blotter, Miller v. Moulton, Leggate v. , Stetson V. Moultrie v. Hunt Mounsey, Postlethwaite v. Mowe V. Stevens Mowry v. Adams Moye V. Albritton Mucklowe V. Fuller Mueller, Rebhan v. Muirhead v. Muirhead Muldoon V. Muldoon , Sweeney v. Mules, Smith v. Mulhall V. Quinn Section 687 757 366 724 554 691 328 372, 636 667 666 302 136 640 392, 393 599 665 Mullanpliy v. County Court 145 MuUer, Bassett v. 193, 200 Munday, Poole v. 633 Munn V. Marsh 622 Munnikhuysen v. Magraw 226, 227 Munro, Austin v. 661 Munroe v. Holmes 543, 544, 632, 634 V. People 216 , Smith V. 97, 191 Munsey v. Webster 133, 135, 145 Munson, Ailing v. 433 Murdock, Brown v. 287 , Crossland v. 34 Murgatroyd, Moses v. 342, 708 Murphree v. Singleton 492 Murphy's App. 699 Murphy's Est. 233 Murphy v. Creighton 62 Murray's Est. 58 Murray, Berwick on Tweed v. 443 V. Blatchford 586 , Liyingston v. 331 V. Lord EUbank 386, 499 , Schull V. 757 Murrell, Batson v. 543, 670 Musselman's App, 612 Mutual Life Ins. Co. v. Sturges 629 Muzzey, Cobb v. 415, 667, 669 , Fay V. 354 Myddleton v. Bushout 310 Myer v. Cole 684 Myrick, Ferrin v. 392, 657 , Heme v. 710 N. Naill, Maurer v. 138 Nash V. Nash 383 Nason, Fulton v. 635 , Willard w. 335 Nass V. Van Swearingen 243 Nation v. Tozer 582, 583 Naundorf v. Schumann 475 Section Nay lor ». Stainsby 107 Neal V. Charlton 214 V. Knox & Line. R. R. Co. 367 Nearpass v. Oilman 762 Nector v. Gennet 487 Needham v. Croke 372 V. Gillett 237 V. Grand Trunk R. R. Co. 370 , Webb V. 140, 176 Neely, Harrison v. 763 Negley v. Gard 680 Nehbe v. Price 658 Nehrboss v. Bliss 604 Nelson v. Cornwell 668 , Green v. 722 , Noell V. 698 , Porter v. 764 V. Serle 662 , Speed V. 707 Nelthorp v. Biscoe 494 Netter v. Brett 33 Nettleton v. Dinehart 369, 371, 635 V. Nettleton 10 , Walters v. 647 Neubert, O'Brien v. 83 Nevin's App. 379 New Bedford Instit. for Sav., Ger- rish V. 624, 625 Newcomb, Cobb v. 134, 190, 252 V. Goss 414, 648, 690, 696, 717 V. Stebbins 330, 462 V. Williams 234, 497, 725, 728, 730 V. Wing 469, 730 Newcome v. Beloe 185 Newell V. Marcy 82 New England Hospital v. Sohier 461 New Eng. Mut. Life Ins.' Co., Bailey v. Newhall v. Sadler V. Turney New Haven & Northampton Co. ». Hayden Newhouse v. Gale Newkirk, Livingston v. Newland v. Champion Newman v. Bateson , Davis V. , Jennings v. Newton v. Bennett , Davis V. , Hovey v. , McLaughlin v. V. Metrop. Ry. Co. 358 .19 742 600, 649 306 711 713 504 494 684 707 498, 527, 528 652 420 618 , Taylor v. 314 New Tork & New Eng. R. R. Co., Davis V. 369, 370, 580 New York Cent. R. R. Co., Rich- ardson V. 370 Ney, Davis v. 620, 624, 625 NichoUs, Ransom v. 510 TABLE OP CASES. xlv Nichols V. Judson , State V. Nicholson, Kelrock v, Nickersbn v. Bowly V. Chase Niles, Clarke v. ». Drake Niven, Fidel. Ins. Co. v. Nixon V. Bullock Noble, Garrett v. , Souse V. , Vulliamy v. Noell V. Nelson Noice V. Brown Norcliff, Winchelsea v. Norcross, Mason v. , Minot V. Norfolk, Peabody v. Normand v. Grognard Section 481 268, 269, 677 585 527, 528 483, 721, 722 283 649 99 690 664 260 609 698 637 169 636 632, 633 357 317, 560, 568, 577 500, 710 Norris v. Norris Northampton v. Smith Northampton Bank, Smith v. 425, 429 North Bridgewater, Abington v. 558 North Hero, Poquet v, Northington, Lockart v. Norton v. Frecker V. Norton V. Palmer V. Sewall Norwood V. Harness Nunn V. Owens Nusz V. Grove o. 766 331 543, 670 458 678 369 442 106 87, 1.38, 139 Oakes v. Mitchell 688 Oakley, Lewin v. 707 Oakman, Richardson v. 730 Oates, Ward v. 59 Oberlin College v. Fowler 471, 472 Obert, Den d. v. Hammel 23 O'Brien's Est. 94, 103, 139 O'Brien v. Neubert 83 Odell v. Culbert 749 Odiorne's App. 139 O'Driscoll V. Fishburne 111 Odum, Barasien v. 240 Oglander v. Baston 386 , Harwood v. 711 Oglesby v. Howard 671 , Penn v. 754 Olcutt, Ormiston v. 588 Old Colony R. R. Co., Crocker v. 473 Oldham, Place v. 403, 667 Olmstead, Hooker v. 563 0'Neil,/nre 131 Onondaga Tr. & Dep. Co. v. Price 493, 494 Sectioa Orcutt V. Orms 698 Oriental Bank y. Blake 630 Orleans, Goods of Duchess of 73 Ormiston v. Olcutt 688 Orms, Orcutt v. 698 Orrery, Mead v. 452, 490 Orth, Pinney v. 762 Osborne v. McMillan 656 Osgood V. Breed 34 V. Foster 493 OstenAoTit, Ex p. 191 Osterhout v. Hardenburgh 698 Ostrom V. Curtis 415, 419 Otis, SheflSeld v. 580 Ott, Henson v. 332 Owen, Stanwood v. 416 Owens V. Bates 118, 128, 145, 176 V, Brown 683 V. Cowan 234 V. Dickenson 705 , Nunn V. 106 Owings V. Owings 200 Oxborrow, Whltmore v. _ 704 Oxenham v. Clapp 694 Oxford, Cowell v. 679 Pace, Collin gwood v. 162 Pacheco's Est. 87 Packard, De La Guerra v. 240 Packer v. Willson . 6.36 Paddon, Cousins v. 690 Padget V. Priest - 241 249, 676 Page's App. 504 Page, Butler v. 353 767 , Sherman v. 317, 591 V. Whidden 760 Paine v. Melntier 730 V. Moffitt 728 , Sampson v. 700 V. Stone 729, 730 V. Ulmer 363 Painter v. Henderson 24 Palmateer v. Tilton 761 Palmer, Matter qf 356 V. AUicock 54 , Chase v. 628 V. Kellogg 758 V. Morrison 332 , Norton v. 678 V. Palmer 468 , Stebbins v. 185, 642, 644 V. Stevens 629 , Stevens v. 528 V. Trevor 498 Panama R. R. Co., Whitford v 370 Pangborn, Breen v. 188, 257 xlvi TABLE OP CASES. Seotion Section Parcher v. Bussell 30 ,549 Pearson v. Henry 663, 691 , Moore v. 670 V. Pearson 495, 503 Paris, Browning v. 688 Pease, Mitchell v. 619, 627 Parish v. Stone 619 ,620 V. Pease 622 Parker's App. 142 ,577 Peaslee v. Kelley 699 Parker v. Atfield 695 Peat V. Crane 673 , Bacon v. 239 ,242 Peay, Anthony v. 332 V. Chambers 491 Peck V. Botsford 688, 736 V. Coburn 648 ,645 V. Peck 277 i, Coleman v. 620 Peeble's App. 29 V. Dee 698 Peeler, Gibbens v. 622 V. Flagg 622 Pegrara, Blake v. 649 V. Kiiekens 530 Peirce v. Perks 148, 206 V. Linden 833 Pelham, Fleming v. 139 V. Parker 31 254, 558 ,640 Pell, Drake v. 333 , Richardson v. 742 Pelletreau v. Rathbone 618 , Sumner v. 19 Pember v. Congdon 766 , Sweet V. 7fiO, 761 Pemberton v. Cony 106 , Tarbell v. 467, 468 ,628 225 Parks, McDaniel v. 648 Pembroke, Baden v. 332 Parris v. Cobb 234 Pendergast, Brown v. 635 , Heapy v. 701 Pendle v. Waite 311 Parsons v. Hancock 691 Pendleton v. Pendleton 136 V. Lyman 552 ,577 V. Phelps 600 V. Merrill 651 697 , Snell V. 760 Penn v. Oglesby 754 V. Spaulding 50, 58, 69 Pennell, Beach v. 756 Partington, Atty.-Gen. v. 131 Pennington v. Healey 668 Partridge's Case 33 Penoyre, Wood v. 495, 508 Partridge v. Partridge 481 Penrod v. Morrison 863 Patch, Cowley v. 649 Penton v. Eobart 847 , Bewail V. 682 People V. Judges of Erie 697 Patello V. Barksdale 59 , Marsh v. 308 Patrick, Booth v. 319 , Monroe v. 216 Pattee v. Harrington 635 V. Tax Commissioners 427 Patten, MagoflSn v. 504 26 , Patterson v. 723 V. Weiant 9 V. Tallman 10 V. White 70 Patterson's Est. 732 Peppard, Pettee v. 628 Patterson v. Dusliane 764 Pergeaux, Quidort v. 23 V. High 120 128 Perkins v. George 10 V. Patten 723 , Groves v. 499 V. Patterson 742 , Kingman v. 620 Patton, Grimbell v. 560 V. Ladd 242 Paul y. Stone 739 760 Paulding's Est. 41 Perks, Peirce v. 148, 205 Paulding v. Sharkey 590 Perrott, Butler v. 145, 146, 147 Paulet, Jackson v. 109 Perry v. Gill 234 Pawasehick, The 580 V. Phelps 705 Payne, Jackson v. 764 V. St. Jo. & West R. E. Co. 66 V. Pusey 670 Ferryman, Giles v. 668 Peabody, Harris v. 602 Personette v. Johnson 459, 467 281 Peter v. Beverly 588, 589 V. Norfolk 357 , Magruder v. 331 Peachy, McCall v. 316 Peters' Est. 548 Peacock, Augusta & S. R. E. Co. u. 257 Peters v. Davis 604 742 , Ewing V. 691 Peall V. Phipps 682 V. Peters 5, 19, 21 Pearley v. Smith 359 V. Pub. Admr. 145, 150, 165 Fearsall, Rayner v. 445, 471 , Willing V. 332 TABLE OP CASES. xlvii Section Petrie v. Clark 452, 471 Pett, Kobinson v. 545 Pettee v. Peppard 628 V. "Wilmarth 379 Pettifer v. James 139 Pettingill v. Pettingill 273 Petty V. Styward 389 Phelps t'. Funkhauser 328 , Holcomb !). 560 563, 565, 579 , Pendleton v. 600 , Perry v. 705 V. Phelps 383 V. Rice 742 Phene's Trusts 132 Philbrick, Moore v. 45 Phillips V. Allen 640 V. Blatchf ord 593, 611 191 V. McGrath 767 V. Middlesex 750 V. Rogers 335 , Taylor v. 237 Phinney, Stowe v. 356 Phipps, Peall v. 682 Pick V. Strong 257 Pickering v. Pendexter 172 V. Poindexter 92 Pico's Est. 102, 163, 213 Picquet, App. 64, 271 Pierce v. Boston SaT. Bank 619, 620, 626, 627 , Ide V. 624 V. Perks 148, 205 V. Prescott 20, 29, 524, esO , Roberts v. 754 V. Strickland 667 , Yearworth v. 354 , Young V. 146 Pilert, Lentz v. 185 Pillsbury, Leach v. 241 Pinchard v. Woods 667 Piuchon's Case 401 Pinkham v. Grant 248 Pinkney v. Singleton 656 Pinney v. Barnes 304 V. McGregory 57, 59, 60, 61, 64 V. Orth 762 Piper's Est. 485 Piper, Taggard v. 500 Pishon, Clark v. 29, 639 Pistole t>. Street 82 Pistorius's App. 392 Pitkin V. Pitkin 610 Pitt V. Woodliam 316 Pitts u. Hale 363, 647 Pittsburgh & Connells R. R. Co., State V. 370 Pixley, Hollenbeck v. 378 Place, Hayward v. , 216 V. Oldham 403, 667 Plaice, Russell v. Section 462 Plant, Thursby v. 652 Planters' Bank, Briggs v. 709 Plainer v. Plainer 750 Piatt's App. 378 Piatt's Case 363 Piatt V. Robins 690 Plimpton V. Goodell 631, 636 Plume V. Howard Sav. Instit. 14, 25, 26, 28, 48, 63 , Jenkins v. 691 Plumer v. Marchant 693 Plummer v. Doughty 339 Poindexter, Pickering v.- 92, 172 Polhemus v. Middleton 428, 541 Pollard V. Mohler 52, 196, 199 V. Pollard 489 493, 605, 679 V. Scears 643, 670 , Tunstall v. 543, 670 Pollexfen v. Moore 709 Pollock V. Learned 606 Pomeroy, Bacon v. 609, 735, 739 V. Mills 546 Pond V. Makepeace 565, 678 461 Pontet, Devese v. 481 Pool, Success, of 318 Poole V. Munday 533 Poor V. Larrabee 469 , Tenney v. 279, 469 Pope V. Allen 762 V. Cole 600, 601 , Davis V. 643, 646 708, 710 Poplin V. Hawke 34 Poquet V. North Hero 766 Porter, Doe v. 337 , English V. 7G0 653 764 , Smith V. 246, 247 , Stokes V. 76 V. Trail 99, 618 Post, White School House Props, v. HI Postlethwaite v. Mounsey 691 Postley V. Chevne 91, 95, 262 Poth, KropfE V. 636 Potter, Anderson v. 145 , Andrews v. 118 , Langdon v. 638 V. Titcomb 312, 315, 318 , United States Rolling Stock Co. V. 307 V. Van Vranken 362 V. Webb 34 Potts V. Mayer 751, 762 V. Smith 217 Potwine's App. 17 Poulson, Union Nat. Bk. v. 413 Pountney, Goods of 118 xlviii TABLE OP CASES. Section 1 Section Powell V. Evans 6B7 ! Purcel v. Purcel 736 V. Graham 659 Furrier, Cuthbert w. 500 , Eawlins v. 481 i Purrington v. Dunning 459 Powers, Howard v 684 Pursel V. Pursel 315, 543 Pratt V. Atwood 521 Pusey, Payne v. 670 , Daniels v. 357 V. Clemson 485 V. Blkins 751, 762 Putnam v. CoUamore 640 V. Lamson 487 , Weld V. 503 V. White 749 Putnam Free School v. Fisher 331 Preble v. Preble 756 Pynn, Stretch v. 137 Prendergast, McDonnell v , 197 Pyron, Gresham v. 225 Prentice v. Dean 634 Prescott, Churchill v. 145, 159 , Dana v. 420 Q- V. Durfee 67 , Lenz V. 716 Quash, Elwell v. 586 V. Moore 114 Quldort V. Pergeaux 23 V. Morse 679 Quigg V. Kittredge 683 , Pierce w. 2( ,29, 624, 680 Quilty, Cleveland v. 252, 257 V. Kead 734 Quinn, Mara v. 691 V. Ward 643 , Mulhall V. 665 Pretto's Will 552 Quintard v. Morgan 207 Price, Geans v. 105 , Haines v. 690 , Howell V. 711 R. 656 , Onondaga Tr. & Dep .Co ■u. 493, Raborg, Donaldson v. 216, 217 494 V. Hammond 18,47 Prichard v. Ames 499 Rackliff, Cliadbourne v. 459 Priest, Padget v. 241, 249, 676 Radcliffe, Townsend v. 119, 129 Prince v. Smith 749 Radford, Booth v. 391 Pring, Ex p. 333 V. Radford 63 Prior V. Downey 240 Ragland, Finch v. 318 , Holland v. 314 Railroad, Denniek v. 370 Pritchard v. Pritchard 767 Railroad Co., Kittell v. 766 Probate Court v. Van Duzer 29 Raleigh, Loebenthal v. 476 Proctor V. Fenbee 333 Rambo v. Wyatt 82, 216 , Hatch V. 248 617, 618 Ramsay's App. 709 V. Wanmaker 301 Ramsay, Dixon v. 560, 707 Proudley v. Fielder 387 Ramsden v. Jackson 697 Providence Rubber Co-u. Goodyear 357 Rand v. Hubbard 449, 450, 614, 615, Provident Instit., Donlan V. 626 616 , 618, 630 , McCluskey v. 625, 627 , Wills V. 668 V. Wall 625 626, 627 Randall, Comparet v. 328 Prowd, Hancock v. 697 , Sampson v. 500 Pruitt, Richardson v. 681 V. Shrader 121, 191 Prussing, Rosenthal v. 187 Rankin, Branch v. 257 Pruyn, Salters v. 686 V. Hannan 768 Pryor v. Downey 17 243, 271 Ranking v. Barnard 484 Public Admr., Ferrie v. 168, 256 Ransom v. NichoUs 510 , Graham v. 553 Raphael v. Boehm 506, 667 V. Hughes 151, 163 Rathbone, Pelletreau v. 618 V. Peters 145, 150 Ratcliffe's Case 162 , Peters v. 165 Rawlins v. Powel 481 , Eenholm v. 144 Rawlinson v. Stone 448 , Sutton V. 95, 192 Rawson v. Knight 756 , Tuohay v. . 180 , Lazonby v. 691 V. Watts 92 Ray V. Dennis 742 Pulver, Schultz v. 318, 671 V. Simmons 625 Pumpelly v. Tinkham 216 Raymond, Macy v. 459 TABLE OF CASES. xlix Section Section Raymond v. Von Watteville 317 Richards v. Richards 635 Rayner v. Pearsall 445, 471 , Warden v. 475 Rea, Cole v. 179 Richardson's Goods 209 V. Englesing 191 Richardson, Ex p. 664 V. Rhodes 491, 493 , Daniels v. 653 Read's Case 241, 245 V. Greese 481 Read w. Hatch 647 V. Hadsell 754 784 V. Hazleton 730 V. Sturtevant 766 V. Hildreth 628 Reade «. Livingston 622 , Jones V. 268, 314 Reading, Stover v. 629 V. Merrill 315 Reane, Browning v. 123 u. Morey 501 Rebhan v. Mueller 302 V. New York Cent. R. R Co. 370 Record v. Howard 578 V. Oakman 730 Rector v. Conway 543 V. Parker 742 Redden v. Inman 764 V. Pruitt 681 Redding, Chase v. 619, 627 V. Richardson 359 Redgrave v. Redgrave 757 , Van Syckle v. 715 Reece v. Strafford 130 , Wilmarth v. 651 Reed's Est. 511 V. Woodbury 3S0 Reed, Bath v. 425 V. Wright 766 , 136, 138 Uichey, Stewart v. 636 598 Richmond, Ex p. 736 22 24 601 511 Rees, Ritchie v. 313, 314 Ricker, Burt v. 451 V. Watts 742 649 Reese's Est. 894 Riddle, McKinnon v. 639 Reese, Grant v. 423, 546 671 217 Rider, Chandler v. 475 Reeve v. Cawley 684 482 Reeves v. Freeling 310 Ridley, Burston v. 36,37 Reiffs App. 318 Ridout V. Bristow 661 Reilly v. Duffy 532, 548 Rigby, Ex p. 585 341 Righter, Harrison v. 603 Reist V. Heilbrenner 363 Riley, Clawson v. 751 Relfe, Frewen v. 582 V. Conn. Riv. R. R. Co. 369 Remann v. Buekmaster 754 Rinehart v. Rinehart 636 Renholm v. Pub. Admr. 144 , Vail V. 460 Renick, Rosenthal v. 93 Ripley v. Bates 70 Revere v. Boston 426 V. Sampson 402 Rex V. Bettesworth 127 Risdon, Lee v. 347 V. Collector of Customs 389 Rising V. Stannard 653 Reynold's App. 516 Riston, Allender v. 445, 451 452, 471 Reynolds, Clement v. 689 Ritchie v. Rees 318, 314 V. Collin 337 Ritter's Est. 400, 691 V. Hamilton 736 Ritter's App. 670 549 Rivaz, Collier v. 553 V. Jackson 549 Roach, Sheedy v. 620 , McGrath v. 620 Roanoke Nav. Co. v. Green 111, 112 V. Reynolds 684 Robart, Penton v. 347 Rhodes, Rea v. 491, 493 Robbin's Case 675 Rice's App. 649 Robbins v. Bates 473 Rice, Brooks v. 677 , Spencer v. 755 , Phelps V. 742 Roberts v. Briscoe 763 , Smith V. 21 , Evans v. 346 Rich V. Tuckerman 429, 740 , Gill V. 528 V. Waters 721 , Godbolt V. 684 Richards v. Child 741 V. Lund 766 , Harvey v. 577 V. Pierce 754 TABLE OP CASES. Section Section Roberts, Sewell v. 522 Rowland, Clegg v. 325 V. Woods 691 Rowley v. Adams 652, 667 Robertson v. McGeoch 197 Rubber Co. v. Goodyear 437 , McLean v. 711 Rucker, Marr v. 691 Robie's Est. 233 , Mitchell V. 742 Robins, Piatt v. 690 , Whitmer v. 754 Robinson, Cochrane v. 487 Rush, Barry v. 691 , Colegrove v. 407 Rushout, Myddleton v. 310 V. Gee 669 Rusio, Selleck v. 560 V. Guild 630 Russell's Case 363, 386 , Hawkins v. 145 Russell V. Belcher 10 , Lidderndale v. 275 , Green v. 420, 486 V. Millard 279 724 V. Hartt 257 V. Rett 545 , Hathaway v. 722 V. Robinson 60 443 V. Hoar 213 , Ryder v. 654 , Hoit ;;. 760 V. Simmons 595, 597, 605, 606 608 452 , Stent V. 505 , Sever v. 715 V. Talmadge 758 , Wilson V. 680 , Tuttle V. 392 420 Rust V. Witherington 240 Roche V. Ware 7S2 Rutherford v. Clark 67, 284 Rock V. Hand 433 Ruthven, Wheeler v. 495, 503 691 Rutland v. Rutland 363 V. Leightnn 655, 690 697 Ryan v. Ryan 143 V. Wilder 598 Ryder, Goods of 109 Rockwell, Edmunds v. 468 V. Robinson 654 V. Young 246 Ryno V. Ryno 23 Rogers v. Brightman 767 , Fay V. 730 , Finch V. 491 S. , ijarvis v. 742 , Phillips V. 335 Sabln, Arnold v. 154, 181, 184, 194 V. Rogers 34 435 Sacheverelle v. Frogatt 358 , State V. 109 Sadler, Newhall i: 19 , Warren ii. 679 Sagittary v. Hyde 709 V. Wilson 543 Sale, Crompton v. 481 Rolfe V. Van Sickle 533 Salisbury v. Colt 506 Roome, Cox v. 442 Sally V. Gunter 34 Root, Matter of 191 Salters v. Pruyn 686 , Asliley V. 580 Saltus, Matter of 667 V. Bancroft 628 Sampson, Harrison v. 643 V. Blake 477 «. Paine 700 V. Geiger 241 ,244 V. Randall 500 V. Stow 628 , Ripley v. 402 Rose V. Bowler 659 684 V. Shaw 600, 601, 649 V. Gould 483 Sand's Case 120 Rosenthal v. Trussing 187 Sanderson v. Sanderson 420, 423 V. Renick 93 Sanford, Davis v. 749 Rosenzweig v. Thompson 603 , Slocum V. 563 Ross V. Barclay 475 Sargeant v. Cox 253 , Colton V. 29 Sargent, Bates v. 477 Rossiter, Hutton v. 594 499 Rotch V. Emerson 503 Sarkie's App. 92, 170 , Gaines v. 545 ,546 Sarle v. Court of Probate 221 703 ,715 Satchwell, Conner v. 491 Roth, Weaver v. 764 Satterlee, Douglas v. 588 Rothrock v. Gallaher 764 Saulnier's Est. 128 Rous, Bowles v. 59,67 Saunders, Barney v. 443 Rowan, Harrison v. 34 V. Drake 507 Rowe V. Jackson 499 V. Saunders 592 TABLE OF CASES. Section Section Saunders v. Weston 563 Sego, Weeks v. 267 Saunderson v. Nicholl 691, 692 Seip V. Drach 684 V. Stearns 666 Selby V. Selby 709 , Steineman v. 592 Selleck v. Rusio 569 Savage v. Blythe 150 Selover, Beckett v. 13, 46 251, 254 ». Lane 691 Selwyn, Goods of 1,S2 V. Winchester 416, 417 Semmes v. Magruder 670 Sawmill v. Dock 227 Serle v. Bradshaw 687 Sawyer v. Mercer 692 , Nelson v. 662 V. Sexton 690 V. Waterworth 662 Saxton V. Chamberlain 549 Sessions v. Moseley 620, 621 Sayre v. Sayre 524 Sever v. Eussell 715 Scarborough v. Watkins 671 Severance v. Hammett 401 Scawen v. Blunt 383 Sewall, Norton v. 369 Scears, Pollard v. 543, 678 V. Patch 682 Schank v. Schank 298 V. Roberts 522 Schenck, Hoagland v. 503 V. Wilmer • 562 Schenkl v. Dana 598, 608, 640 Seward, Thrall v. 766 Scherer v. Ingerman 755 Sewell, Clark v. 481 SchiefEelin, Field v. 471 V. Slingluff 550 V. Stewart 443 Seymour, Bliven v. 489 Schmaunz v. Goss 500 Shaffer, Jackson v. 585 Schmidt v. Heusner 311 Shallcross v. Wright 669 , Thompson v. 491 Shannoji, Beers v. 59, 63, 64, 65 Schmitt V. Willis 463 V. Shannon 557 Schnell v. Chicago 29 V. White 382 Schofield V. Corbett 742 Sharkey, Paulding v. 690 V. Walker 759 Sharp, Citizens' Nat. Bank v. 431, 4.S2 Schriver, Stevenson v. 420 , Wagner v. 518 SchuU V. Murray 757 Sharpe's App, 92 Schulte, Simpson v. 600 Sharpe, Fowler v. 691 Schultz V. Pulver 318, 671 Shaw, Adair v. 76 , Woodruff V. 51 , Barwell v. 2.56 Schumann, Naundorf v. 475 V. Berry 585 Schutt, Lamson v. 467, 670 , Sampson v. 600 601, 649 Sconce v. Henderson 754 Shearer v. Shearer, 594 596 598, 640 Scott's Est. 59, 539 , Wilson V. 391 394, 429 Scott, In re 668 Shed, Dawes v. 731, 739 V. Becher 91 Sheedy v. Roacli 620 , Belden v. 766 SheflSeld, Greening v. 656 , Boniface v. 398 V. Otis 580 , Edmunds v. 478 Sheldon, Abercrombie v. 274, 283 V. Fox 216 , Bush V. 34 V. Hancock 465, 543, 670 , Campbell v. 563, 570 , McFeely v. 21,45 V. Wright 128, 252 V. Mitchell 699 Shelley's Case 691 498 Shelton v. Atkins 629 V. Tyler 452, 471 V. Homer 330, 587 Scriber, Irwin v. 14, 17, 46 Shephardson, Bassett u. 769 Scriven v. Tapley 499 Shepherd v. McClain 761 Scudder, Kingsland v. 539 V. Young 645 656, 660, 669 V. Van Arsdale 518 Sheppard v. Kent 708 Scurrah v. Scurrah 313 Sherman v. Page 317, 591 Seaman v. Everard 671 , Smith V. 185 369, 562 Sears v. Carrier 623 Sherrington v. Yates 383 V. Dillingham 196 Sherwood v, Sherwood 387 , Luchterhand v. 654 Shew, Corner v. 657, 659, 684 V. Mills 416 Shields v. Shields 91 Sedgwick v. Sedgwick 752 Shillaber v. Wyman 248, 617, 685 See, Kilbourn v. 212 Shimmin, Cassidy v. 565 Hi TABLE OP CASES. Section Section Shindel's App. 549 Sloan, Trustees v. 697 Shipbrook v. Hincliinbrook 690 Slocomb V. Slocomb 556 Shipman v. Thompson 742 Slocum V. English 468 Shirley, Grimstead v. 372 V. Sanford 563 V. Healds 614 Small V. Com. 208,266 Shoekley, Madison v. 240 , JefEereys v. 389 Shoenberger v. Lancaster Sav. V. Small 34 Instit. 630 Smalley, Cole v. 686 Shomo's App. 167, 173 441, 443 Shook V. Goddard 288 742 Slirader, Eandall v. 121, 191 Smallwood, Blakesley v. 689 Shreve v. Joyce 585, 586, 736 Smedley v. Hill 692, 693 489 Smith's App. 759 Shriver v. State 524, 529, 680 Smith's Est. 593 Shropshire v. Withers 191 Smith, Goods of 115 Shroyer v. Richmond 24 269 Shultz's App. 400 V. Ayres 610 Shultz V. Houck 18, 39, 47 , Barnawell v. 670 Shum, Taylor v. 652 , Boardman v. 742 Shumway v. Holbrook 34,50 V. Bonsall 34 Shunk's App. 545 V. Bryant 4ao Shurter, Grant v. 600 761 ShurtlefE, Cole i'. 766 , Burritt v. 630 Sibley, Capper v. 7 V. Chandler 722 , Sigourney v. 8,11 V. Chapman 636 Sieber's App. 138 , Crocker v. 328 Sifford V. Morrison 287 V. Crofts 110 Sigler V. Haywood 697 672, 693 Sigourrey v. Sibley 8,11 , Delaplaine v. 327 V. Wetherell 485 V. Dennis 216 Sikes V. Lister 332 V. Dyer 629 Sill V. McKnight 86, 88, 90 , Eppes V. 700 Silverbrandt v. Widraayer 322 585, 612 Silverman v. Chase 600 V. Fellows 204, 493 Simmons, Fleet v. 300 , Fellows V. 381, 750 , Ray V. 625 V. Franklin 636 , Robinson v. 595, 597, 605, 606, V. Georgetown Bank 574 608 , Glenn v. 241, 242 V. Tongue 715 , Green v. 654 Simon v. Albright 592 V. Guild 551 Simpson, Doran v. 603, 713 , Harding v. 416 V. Schulte 600 , Hardy 7<. 509 Sims V. Stilwell 656 234 Single's App. 161, 170, 174 , Hawes v. 661 Singleton, Murphree v. 492 , HoUis V. 372 , Pinkney v. 656 , Jewett V. 614, 717, 718 Sinnett, Little v. 59, 64, 67 , Johnston v. 60,65 Skeffington v. White 186 V. Kimball 736 Skellenger v. Skellenger 511, 527, 528 , Kinna v. 339 Skelton v, Hawling 691 V. Lambert 495, 496, 679 Skillman, Fisher v. 588 , Lathrop v. 119, 145, 147, 159 Skilton's Est.' 86 , Leigh V. 543 Skinner, Bostwick v. 38 , Lewis V. 491 V. Frierson 698 V. Manning 629 , Somes V. 471 , Martin v. 340, 628 Slagle, Heward v. 101 V. Mayo 402 Slauter v. Chenowith 678 , McBeth V. 656 Sleecli !). Thorington 489, 502 , Montague v. 652 Sleeper v. Union Ins. Co. 361, 637 V. Mules 599 SlinglufE, Sewell v. 550 97, 191 TABLE OF CASES. liii Section Smith, Nortliampton v. 8 V. Nortliampton Bank 425, 429 , Pearly v. 359 V. Porter 246, 247 , Potts V. 217 , Prince v. 749 0. Rice 21 V. Sherman 185, 369, 562 V. Smith 128, 142, 480, 481, 483, 674 , Spode V. 478 , Stebbins v. 314 V. Steele 34 V. Stockbridge 210, 252 , Strong V. 498, 722 , Webb V. 709 V. Whiting 585, 631 , Wood V. 720 V. Young 100, 173 , Zebach v. 587 Smither, Gillies v. 692, 693 Smithson, Dorsey v. 245 Suell V. Parsons 760 Snodgrass v. Andrews 316 Snow V. Bartlett 635 V. Snow 516, 518 , Swan V. 356 Snyder, Forbes v. 754 Sohier v. Johnson 640 , New Engl. Hosp. v. 461 Sohn's Est. 298 SoUiday v. Bissey 680 Solomon v. Wixon 196 Soltyk, Bowditeh v. 507 Somerville, Fogelsonger v. 24 , Kent V. 493 V. Somerville 553 Somes V. Brewer 471 V. Skinner 471 Soule, Kingman v. 656, 657, 658, 660 Southwick V. Morrill 459, 592 Soutter, In re 548 Soverhill v. Suydam 485 Soward, Hart v. 128 Spang, Mechanics, etc., Ins. Co. v. 650 Spann, Grant v. 105, 106 Sparhawk v. Buell 275, 497, 588 Sparks v. Weedon 503 Sparrell, Eliott v. 506 Spashett, Scott v. 498 Spaulding, Parsons v. 50, 58, 69 V. Vincent 580 Speakman's App. 315 Speed V. Nelson 707 Spelman w. Aldrich 627 V. Talbot 487 Spencer's App. 378 Spencer's Case 348 Spencer, Bollard v. 372 , Cude V. 699, 700 Section Spencer v. Bobbins 755 372 Sperry's Est. 602 Spier's App. 378 Spiller, Greenwood v. 699 Spode V. Smith 478 Sprague v. West 465 Spraybury v. Culberson 67 Stacy V. Thrasher 678 Stainsby, Naylor ». 107 Stainton v. The Carron Company 603, 713 Standard Sug. Ref. Co., Kennedy v. 369 Standish, Baldwin v. 273, 274 Stanhope, Dodge v. 757 Stanley v. Bernes 166 V. Gaylord 6.36 , Isted V. 113 V. Kean 34 , Ysted u. 212 Stannard, Rising v. 653 Stanton, Troy Nat. Bank v. 268, 295, 415, 677, 740 Stanwood v. Owen 416 Staple V. Entrekin 308 Stark I). Hunton 671 Starkie, Foster v. 736 Starkins, Brinkerhoff v. 344 State, Clarke v. 275 V. Dilley 550 , Engel V. 510 V. Hichborn 396, 415 425, 426 691 431 V. Nichols 268 269, 677 V. Pittsburgh & Connell. R. R. Co. 370 V. Rogers 109 , Schriver v. 524 529, 680 V. Warren 18 , Williamson v. 751 State Bank, Hutchins v. 34, 445, 471, 473 565, 569 Stearn v. Mills 691 Stearns v. Burnham 449 V. Fisk 104 140, 299 V. Stearns 731 V. Wright 59, 60, 64 Stebbins v. Lathrop 149 380, 462 V. Palmer 185, 642, 644 V. Smith 314 Stedman v. Fiedler 664 Steel V. Kurtz 510 Steele v. Clarke 754 , Smith V. 34 Steineman, Loring v. 180 V. Saunderson 592 Stent V. McLeord 518 liv TABLE OF CASES. Section Section Stent V. Bobinson 505 Storer v. Storer 544, 632 Stephens v. Cotterell 764 Story, Biddison v. 304 , Hart V. 383 , Ipswich Man. Co. v. 485, 628 V. Totty 498 Stover, Baucus v. 534 V. Venables 501 V. Reading 629 Sterrett's App. 539 Stow, Hoot V. 628 Sterrett, Brewster v. 601 Stowe, Bishop v. 766 Stetson, Jenkins v. 643, 645 V. Phinney 356 V. Moulton 724 St. Paul Miss. Soc, Kearney v 131 Stevens, Berry v. 756 Strafford, Reeee v. 130 V. Burgess 467 Strafford Bank, Mathewson v. 630 V. Gaylord 485, 534, 562, 577 Strang v. Hirst 636 V. Goodell 632 Stransham, Swann v. 652 V. Hay 754 Stratton v. Linton 161, 177 , Hillman v. 328 V. Stratton 229 618 Strauber v. Mohler 754 , Mowe V. 328 Street, Pistole v. 82 V. Palmer 528, 629 Stretch v. Pynn 137 V. Warren 356, 640 Strickland, Pierce v. 567 Stevenson, Bourne v. 312, 315, 318, 321 Strong V. Bass 483, 501 , Fletcher v. 487 , Pick V. 257 420 V. Smith 498, 722 • V. Superior Court 26 , Stone V. 463 Stewart's App. 77, 542 V. White 563 Stewart, Brown v. 193, 200 V. Williams 480, 481 , Bryan v. 686 Strutt, Decks v. 679 , Duncan v. 26 Stuart, Ferguson v. 332 636 Stuck, Keller v. 420 , SchiefEelin v. 443 Studley v. Josselyn 469 , Todhunter v. 181 194, 252, 253 ^— V. Willis 393, 738 Stickney v. Clement 742 Stukeley v. Butler 345 Stillman v. HoUenbeck 647 Sturges V. Beach 600 V. Young 543, 670 , Mut. Life Ins. Co. v. 629 Stills V. Harmon 722 Sturtevant, Read v. 766 Stilwell, Sims v 656 Stuyvesant v. Hall 585 V. Swarthout 459 Sty ward, Petty v. 389 Stinson, Davis v. 516, 518 Suarez, Matter of 308 Stint, Duncamban v. 260 Suffolk Sav. Bk., Jochumsen V. 14, 26, St. John V. McKee 539 626 St. Joseph & West. R. E. Co., Perry Sugar River Bank v. Fairbank 737 V. 66 SuUings V. Richmond 511 St. Jurgo V. Dunscomb 151 Sullivan's Will 264 Stockbridge, Smith v. 210, 252 Sullivan v. Fosdick 69 Stocksdale v Conavpay 195, 196 V. Horner 391, 393 Stoddard, White v. 630 V. Winthrop 502, 504 Stokes V. Porter 76 Sumner v. Parker 19 Stone, Coddington i>. 441 V. Williams 470, 583, 656 , Fales V. 635 Superior Court, Stevenson v. 26 , Foster v. 401 Supreme Council, Brown v. 356 V. Hackett 625 Surrogate of Yates Co., Bugb Be II. 43 V. Heath 742 Susz V. Forst 304 , Hobart v. 482, 485 Sutherland v. Brush 588, 589 , McFarland v. 24, 29,, 328 Sutter V. Ling 332 , Paine v. 729, 730 Sutton V. Pub. Admr. 95, 192 , Parisli V. 619, 620 , Riddle i: 691 , Paul V. 739 V. Weeks 262 277, 284 , Rawlinson v. 448 Suydam, Brodnax v. 682 V. Strong 463 , Chouteau v. 668 Stoolfoos V. Jenkins 24 , Soverhill v. 485 Stoothoff, Voorhees v. 443 Swain, White v. 734 TABLE OP CASES. Iv Section Swainson, Clergymen's Sons' Corp. V. 691 Swan's Case 344 Swan, In re 499 , Benson v. 517 , Davis V. 503 V. Snow 356 V. Swan 136 V. Wilkinson 82 Swann v. Stransham 652 Swarthout, Stilwell v. 459 Swasey v. Ames 756 , Towle V. 489, 505, 711 Swayne, Jeffersonville R. U. Co. v. 59, 62, 66 Swazey v. Amer. Bible Soc. 489 Swearingen v. Pendleton 697 Sweeney v. Muldoon 392, 393 Sweet V. Parker 761 Sweezey v. Willis 118, 145, 147, 156 Swett, Wiggin v. 641, 548, 632 Sykes v. Meacham Symes, Long v. Symmes v. Drew Taber, Holmes v. Taft V. Stevens Taggard v. Piper Tainter v. Clark Talbert, Succ. of , Grimes i>. Talbot, King v. , Spelman v. Tallmadge, Genet v. , Robinson v. Tallraan, Patten v. Talmage v. Chapel Tanner v. Bennett , Jones V. Tant V. Wigfall Tapley v. CoflSn , Scriven v. Tappan v. Bruen V. Tappan Tarbell v. Jewett V. Parker Target, Horsam v. Tatnall v. Hankey Taylor, Carr v. , Cotter V. V. Delancey V. Duesterberg , Fenner v. , Garth v. V. Hosick , McCreary v. V. Moore 741 195 462 426, 428 340 500 475 252 66, 58, 69 444, 504 487 497 758 10 567 691 680 18,47 631 499 683 679 361, 634 467, 468, 628 718,719 652 484 145, 181 165 755 499 243 252 92 242 Section Taylor v. Newton 314 V. Phillips 237 V. Slium 652 V. Tibbetts 199 V. Volk 413 , Walker v. 766 V. Watts 220 V. Woburn 616, 630 Tax Commissioners, People «. 427 Tebbets v. Tilton 12, 22, 29 Tebbs V. Carpenter 671 Telford v. Morison 324 Temple, Chamberlayne v. 245 V. Temple 383 Temples v. Cain 67 Templeton v. Basoom 661 Ten Eyck, Hart v. 321 Tennessee, Bank of, v. Horn 682 Tenney v. Poor 279, 469 Terhune v. Bray 647 Teschemacher v. Thompson 77 Thachert). Dunham 745 Thayer, Hall u. 10,11,118 V. HoUis 739 V. Homer 86 104, 307 V. Keyes 734, 740 V. Winchester 268, 466 Thom, King v. 661 Thomas v. Butler 148 205,'219 , Freke v. 220 , Fritz ». 736 V. Knighton 197, 215 K. Le Baron 461 V. White 671 , Wickendon u. 199 V. Wood 332 Thomason's Est. 552, 555 Thompson's Est. 99, 145 Thompson v. Brown 268 , 664, 740 416 , Emerson w. 543, 736 , Hildreth v. 701, 717 , Jackson v. 34 , Jordan v. 256 , Kavanagh v. 82 V. People 26 , Rosenzweig v. 603 V. Schmidt 491 , Shipman v. 742 , Teschemaker v. 77 V. Thompson 29 , Truesdell v. 631 , Ward V. 118, 128 V. Whitmarsh 464 V. Wilson 449 Thomson v. Thomson 311 Thorington, Sleech v. 489, 502 Thorn v. Woodruff 720 Thorne v. Underbill 320 Thornton v. Mehring 337 Ivi TABLE OP CASES. Section 1 Section Thornton u. Winston 118,141,196 198 Treat, Goodrich v. 121 Thrall v. Seward 766 Tredgold, Atkins v. 685 Thrasher v. Ingram 491 Treece, Barclift v. 63, 65 , Stacy V. 678 Tremaine, Foxtwist ». 372 Thrustout V. Coppin 76 Tremblay, Harrington v. 760 Thurlough v. Kendall 414 Tremper v. Conklin 595 Thursby v. Plant 652 Trevor, Palmer v. 498 Tibbets, Taylor v. 199 Trewinian v. Howell 661 Tibbin's Est. 381 Trimble v. Marshall 543 Tibbits, Brodribb v. 17 Trimmer v. Bayne 709 Ticknor v. Harris 328 Tristram, Barrington v. 502 Tilghman's Est. 333 Trott V. Buchanan 711 Tillotson, Braekett v. 392 Troy Nat. Bank v. Stanton 268, 295, V. Tillotson 604 415 677, 740 Tilton, Palmateer v. 761 V. Topping 661, 691 , Tebbets v. 12, 22, 29 Truby, Hill v. 764 Timiswood, Bell v. 175 Truesdell v. Thompson 631 Timmerman, Lussen v. 171 Truett V. Cummons 241 Timmins, Baldwin v. 65(5 Tucker, Andrews v. 319 Tingley, Gould v. 415 , Badlam v. 363 Tinkham, Pumpelly v. 216 , Goodall V. 591, 678 Tipping f. Tipping 375 V. Harris 18 Titcomb, Potter v. 312, 315 318 , Hill V. 591, 678 Titus V. Titus 489 , Larrabee v. 519 Todhunter v. Stewart 181 194, 252 253 Tuckerman, Rich v. 429, 740 Tolterry, Dagley v. 497 Tuckey v. Hawkins 636 Tome's App. 304 Tulloch V. Dunn 688 Tomlinson v. Gill 661 TuUy V. Fitch. R. R. Co. 369 , Wall V. 385 TunnicUfE, Wood v. 397 433, 436 Tompkins v. Tompkins 34 Tunstall v. Pollard 543, 670 Tongue, Simmons v. 715 Tuohay v. Pub. Admr. 180 Tooker v. Bell 226 Turner, Brockenbrough v. 471 Toone, Watson v. 472 V. Child 247 Topping, Troy Nat. Bank V. 661 ,691 V. Ellis 315 Torrance v. MoDougall , 252 , Kearney v. 160 V. Torrance 24 , Matthews v. 328, 490, 493 Torrey, Field v. 81 Turney, Newhall v. 742 627 Tuttle V. Robinson 392, 420 , Wood B. 425 Twaddell's App. 439 Totty, Stephens v. 498 Twiss V. Cheever 665 Tousey, Campbell r. 241 ,570 Twistman v. Croushore 764 Tower, Cutting v. 366 Twyford v. Treal 36 Towle V. Swasey 489, 505 711 Tylden v. Hyde 331 Towles, Miller u. 698 Tyler, Scott v. 452, 471 Towne v. Ammidown 588, 724 ,725 Tyndall, Attorney-General v. 709 Townsend v. Gordon 251 Tyng, Halstead v. 761 V. Radcliffe 119 129 Tyrrel v. Washburn 593, 609 Townshend v. Windham 360 Tozer, Nation v. 582 ,583 V. Tozer 378 U. Trahern v. Colburn 754 Traill, Gedge v. 603 Udell, Kenny v. 498 Trail, Porter v. 99 ,618 Ulmer, Paine v. 363 Trammel, Smalley i'. 742 TJnderhill, Thorne v. 320 Traster, Cordeaux v. 171 Underwood, Barnes v. 122 , 129, 510 Travis v. Milne 603 ,713 656 Treadwell v. Cordis 496 ,640 V. Wing 132 Treal, Twyford v. 36 Union Ins. Co., Sleeper v. 361, 637 Treat, Barnes v. 720 Union Nat. Bank v. Jolly 682 V. Dwinel 635 V. Poulson 413 TABLE OF CASES. Ivii Section United States v. Fisher 396 V. Hoar 690, 695 United States Rolling Stock Co. v. Potter 307 Urfity Mut. Life Ins. Co., Com. v. 356 Uthwatt, Bellasis v. 481 Utterson v. Mair 91, 713 Vail V. Male 309 V. Binehart 460 Valencia v. Bernal 240, 245 Valentine, Fay v. 279, 469 , Hathaway v. 328 , Hazleton v. 580, 783 Van Arsdale, Montford v. 697 , Scudder v. 518 Vance v. Fisher 328 Vandenhurgh, Wood v. 392 Van der Hey den, Cottle v. 170 Van Der Moor, Matter of 356 Vanderreer, Davis v. 518 Van Deusen, Dewey v. 629 Van Duzer, Prohate Court v. 29 Van Dyke u. Chandler 415 , Moody V. 234 Van Giessen v. Bridgeford 58 Van Home v. Fonda 199 Van Loan, Burns v. 26 Van Meter v. Jones 315 Van Millingen. MofEatt v. 592 Van Norman, Fox v. 240 Van Sickle, Eolfe v. 533 Van Swearingen, Naas v. 243 Van Syokle v. Richardson 715 Vantine v. Morse 501, 722 Van Vacler, McWillie v. 5 Van Vranken, Potter v. 362 Van Wagenen, De Diemar v. 668 Van Wyck, Matter of 307, 309 Varnum v. Camp 560, 574 Vaughan v. Barrett 64 w. Howard 491 Vaughn v. Gardner 684 Veazie v. Marrett 740 Venable v. Mitchell 234 Venables, Stephens v. 501 Vernon v. Curtis 685 , Curtis V. 675, 685, 694 Verry v. McClellan 461 Vertner, Griffith v. 22 Vest, Christy v. 60, 62 Vincent, Habergham v. 33 , Spaulding v. 580 Viscountess Bindon's Case 375 Volk, Taylor v. 413 Von Arx v. Wemple 414 Von Watteville, Raymond!;. 317 Voorhees v. Woodhull V. Stoothoff Voorhis v. Childs W. Section 621 443 595, 600, 601 Wabash, St. Louis, &c. R. R. Co., Hyde v. 370 Wade's App. 401 Wadsworth v. AUcott 358 Wager, Rider v. 482 V. Wager 550 Wagner v. Sharp 518 Wait, Dawson v. 766 Waite, Pendle v. 311 Waldsmith v. Waldsmith 680 Wales V. Willard 20, 53 Walker's Est. 544 Walker v. Carless 138 v., Cheever 670, 703 , Dane v. 521 V. Dougherty 221 V. Hall 322 V. Hill 407, 494, 761 , Jones V. 610 V. Maxwell 636 V. Morris 715 , Schofield V. 759 V. Taylor 766 Wall V. Provid. Instit. 625, 626, 627 V. Tomlinson 385 Wallace v. Wallace 489 Waller, Creamer v. 311 Walsh, McKnight v. 443, 497 Walter, Fowler v. 215, 216, 257 Walters v. Nettleton 647 Waltham Bank v. Wright 741 Wandell, Hartnett v. 105, 106, 108, 109 Wankford v. Wankford 76, 111, 485, 615 Wanmaker, Proctor v. Ward, Matter of , Blake v. , Jones V. V. Gates , Prescott V. V. Thompson Warde, Lord, Lord Dudley v. Warden v. Richards Ware, Roche v. Warford, Cain v. Warren, FUnt v. , Gpodnow V, V. Rogers , State V. Warrick v. Hull Warwick, Edwards v. r. Greville 162, 167, , Marlatt v. 191, 301 207 549 502 59 643 118, 128 353 475 752 229 333 630 679 18 754 332 168, 173 761 Iviii TABLE OP CASES. Section Section Washburn v. Goodman 593, 595, 598, 606, 609 Wells V. Chllds 253, 254, 283, 737, 739, 741 V. Hale 315, 381 , Heath v. 467 , Tyrrel v. 593, 609 , Lee V. 7 V. Washburn 378 Welsh V. Crater 518, 327 , Wood V. 281 -. — V. Welsh 622 Waters, Chapin y. 467, 667 Wemple, Von Arx v. 414 , Holbrook v. 498, 528 Wendell, Matter of 356 , Kerr v. 585 V. French 545 , Rich V. 721 Wernse v. Hall 301 , Wilde V. 852 Wescott V. McDonald 458 Waterworth, Serle v. 662 West, Matter of 301 Watkins, Bowsher v. 713 , Kelly V. 23,252 V. Maule 448 i;. Mapes 80 , Scarborough v. 671 V. Moore 348 Watson V. Collins 57 , Sprague v. 465 , McKinney v. 541 V. Willby 205, 219 V. Toone 472 Weston, Saunders v. 663 I'. Watson 420 Wetherbee, Pond v. 461 Watt's App. 562 Wetherell, Sigourney v. 485 Watt, Oowell V. 372 Wetmore, Lees v. 51, 59, 62, 67 V. Howard 541, 544 Wetzler v. Fitch 212 , Pub. Adrar. o. 92 Whale V. Booth 445, 471 , Eees V. 742 Wheatley v. Lane 861, 643, 647, 674, , Taylor v. 220 690 Waukford v. Waukford 76, 111 V. Martin 433 Weatherbee, White v. 30 ,524 680, 729 Wheeler v. Bowen 498 528, 721, 722 Weaver, Binnerman v. 79 Bull V. 655, 697 V. Chace 120 , Hailey v. 656 V. Roth 764 631 Webb, Dorchester v. 592 V. Ruthven 495, 503 V. Needham 140, 176 V. Wheeler 585, 586 , Potter V. 84 Whelpley, Loder v. 762 V. Smith 709 Whicher v. Hume 553 Webber, Brown v. 636 Whidden, Page v. 760 Weber, Fitch v. 833 Whitaker's Est. 539 Webster, Chenery v. 468 Wbitaker v. Wliitaker 130 , Munsey v. 133 135, 145 Whitall, Black v. 318 V. Spencer 372 Whitchcott, Johnson v. 661 V. Webster 612 White V. Allen 366 Wedderburn v. Wedderburn 612 V. Archbill 690 Weed, Ayres v. 194 196, 198 V. Arrington 690 Weedon, Sparks v. 503 , Barton v. 728 Weeks v. Jewett 120, 131 762 V. Gibbs 676 691, 717 V. Clapp 19 , Gllnes V. 300 V. Ditson 506, 632, 633, 724 , McLean v. 415 622, 627 V. Duggan 281 V. Sego 257 , Hodgdon v. 543, 670 , Sutton V. 262 277, 284 , Holbrook v. 643 Weiant, People v. 9 V. Howard 333 Weimar v. Fath 475 , Hursey v. 699 Welcden v. Elkington 491 V. Low 142 Welch's Est. 256 V. Mann 239 , 241, 245, 249 Welch V. Gurley 720 , People V. 70 Weld, Lodge v. 613 , Pratt V. 749 V. Putnam 503 , Shannon v. 382 Wellington, Charlestown Col- , SkeflBngton f. 186 lege V. 546 V. Stoddard 630 V. Dolman l.SO , Strong V. 563 Wellman v. Lawrence 459, 461 V. Swain 734 TABLE OP CASES. lix Section White, Thomas y. 671 17. Weatherbee 80, 524, 680, 7'i9 Whitehead v. Gibbons 711 White Scliool-Hoase, Props, v. Post 111 Whitford V. Panama B. K. Co. 370 Whiting, Smith v. 585, 631 Whitmarsh, Thompson v. 464 Whitmer v. Rucker 754 Whitmore v. Oxborrow 704 Whitney, Brooks v. 472 , Gladson v. 328 , Henshaw v. 528, 722 , Hunt V. 635 V. Wheeler 620, 621, 627 Whittaker, Eaton v. 416 Wickendon v. Thomas 199 Wickliffe, Briscoe v. 199, 209 Wickwire v. Chapman 92, 95, 171 Widraayer, Silverbrandt v. 322 Wigand v. De Jonge 9, 1 1 Wigfall, Tant v. 18, 47 Wigg, Wilson v. 653 Wiggin V. Levering 670 V. Swett 541, 548, 682 Wigley V. Ashton 659, 684 Wilbur V. Maxam 640 Wilcox, Jenney v. 741 V. Wilcox 745 Wilcoxon V. Reese 217 Wilde V. Waters 352 Wilder v. Keeler 708 , Rock V. 598 Wiley's App. 387 Wiley, Millay v. 104 Wilkey's App. 87, 139 Wilkins v. Harris 91 , Williams v. ' 175 Wilkinson v. Gordon 123 , Jones V. 683 , Miller v. 656 , Swan V. 82 Willard v. Nason 335 , Wales V. 20, 53 Willats V. Cay 498 Willby, West v. 205, 219 Willey V. Hunter 766 Willett V. Blanford 606 Williams' Case 191 Williams, Goods of 139 V. American Bank 400, 418 V. Benedict 682 , Brackett v. 305 , Courtenay v. 483 V. Crary 481 , Croft V. 588, 589 , Everett v. 735 , Granthier v. 181 V. Holden 588 V. Innes 691 V. Lee 679 Williams v. Marshall V. Moore V. Morehouse , Newcomb v. Section 473 636 315, 318 234, 497, 725, 728, 730 480, 481 410, 583, 656 175 , Strong V. , Sumner v, V. Wilkins — — V. Williams 379 WiUiamson, Chamberlain v. 371 V. Furbush 186 V. State 751 V. Williamson 504 Willing V. Peters 332 Willis, Harrell v. 527 , Hicks V. 461 V. Jones 122, 129, 236 V. Missouri Pao. R. R. Co. 370 , Schmitt V. 463 , Studley v. 393, 738 , Sweezey v. 118, 145, 147, 156 Willoughby v. MoCIuer 320 Wills V. Rand 668 Wilmarth, Kingsbury v. 380 , Pettee v. 379 V. Richardson 651 Wilmer, Sewall v. 552 Wilson's Est. 540 Wilson, In re 762 , Brice v. 657 V. Fielding 709 V. Frazier 136 V. Gaston 24 , Gregg V. 87 V. Harman 359 V. Hudson 239, 241, 248 V. Keeler 314 V. Leishman 703, 715 , Packer v. 636 , Rogers v. 543 V. Russell 760 V. Shearer 391, 394, 429 V. Wigg 653 Wilt V. Bird 698 Wimbish, MoBain v. 43 Winch V. Brutton 499 Winchcombe v. Winchester 669 Winchell v. Allen 720 Winchelsea v, NorcliflF 169 Winchester v. Charter 622 , Thayer v. 268, 466 , Winchcombe v. 669 Windham, Townshend v. 860 Windley, Merritt v. 492 Windsor, Knapp v. 518, 520 Winfleld, Dowley o. 500 Wing V. Andrews 756 V. Angrave 387 , Newcomb v. 469, 730 , Underwood v. 132 Ix TABLE OP CASES. Section Wingate v. Wooten 272 Winkelman, Crispin v. 240 Winn, Lenoir v. 690 Winsiiip V. Bass 299, 485, 628 Winslow, Condit v. 634 Winsor, French v. 420 ' Winston, Thornton v. 118, 141, 196, 198 Winter, Dennis v, 17 , Goodman v. 560 Winthrop, Sullivan v. 502, 604 Wireman, Motliland v. 677 Wisepenny's Est. 221 Witherington, Rust v. 240 Withers, Shropsliire v. 191 Wixon, Solomon v. 196 Woburn, Taylor v. 616, 630 Wolcott V. Wolcotfc 29 Wolfe, Hayne w. 212 , Hayron v 113 Wolverhampton Bank v. Marston 445 Wood's Est. 71 Wood, Goods of 108 , Bard v. 532 V. Barstow 728 , Blair w. 600,601 , Brown v. 75 V. Brown 584 V. Chetwood 82 , Cobb V. 464 V. Gaynon 353 , Hargreaves v. 200 , Humes v. 489 , Jeffs V. 481 , Jenkins v. 269, 655, 677, 700, 740 V. I'enoyre V. Smith , Thomas v. V. Torrey V. TunniclifE V. Yandenburgh V. Washburn V. Wood Woodbury, Richardson v. V. Woodbury Wooden, Cole v. Woodgate v. Field Woodham, Pitt v. WoodhuU, Dibble v. , Voorhees v. Woodman, Bennett v. , Fairfield v. Woodrow V. Mansfield Woodruff V. Cox V. Schultz , Thorn r. V. Woodruff Woods V. Crawford V. Elliott , Foster v. , Johnson v. 495, 503 720 332 425 397, 433, 436 ,392 281 262, 552 330 766 225, 592 704, 706 316 414 621 532, 730 425 751, 758 82 51 720 304, 305 18 670 470 333 Woods, Prichard v. , Roberts v. Woodward, Bristol County Sav Bk. i;. V. Cowing V. Lord D'Arcy , Loring v. V. Woodward Wooley V. Pemberton Woolfit, Cooper v. Wooten's Est. Wooten, Wingate v. Worley, High v. Worman, Goods of Woronoco Sav. Bk., Eastman v. Worth V. McArden Worthington, Ex p. , Alexander v, V. Barlow V. Gittings , Kenyon v. Wray, Beatty v. Wright, Denbo v. , Richardson v. , Schallcross v, , Sheldon v. , Stearns v. , Waltham Bank v. V. Wright Wurtz, Dupuy v. Wyatt, Rambo v. Wyman's App. Wyman, Shillaber v. V. Wyman Wynkoop, Demarest v. Wynn v. Booker Section 667 691 417 698 485 603, 504 479 225 348 294 272 715 125 624 111 225 711 691 34, 301 705 608 755 766 128, 252 59, 60, 64 741 136, 420, 621 554 82, 216 668 248, 617, 685 357 339 683 Yard v. AUard Yarmouth, Hardy v. Yates, Sherrington v. Yeackel v. Litchfield Yearworth v. Pierce Yeomans v. Brown Young V. Brown , HoUister v. , Kinard v. V. Pierce , Rockwell V. , Shepherd v. , Smith V. , Stillman v Ysted V. Stanley Yum's Est. Zebach v. Smith 668 426 383 471, 473 354 461 229 766 675 146 246 645, 646, 660, 669 100, 173 543, 670 212 233 587 A TREATISE ox THE LAW OF EXECUTORS AND ADMINISTRATORS. CHAPTER I. JURISDICTION OP PROBATE COURTS OVER ADMINISTRATION. §1. 2. 3. 6. 7. 8. - 9. 10. 11. 12. 13. 14. 15. 16. 17. 18. Origin of Jurisdiction over Ad- ministrators. Same subject. Origin of Jurisdiction over Execu- tors. Ecclesiastical Jurisdiction over Executors. Jurisdiction of Administration in the United States. Probate Courts, Constitution of. Judges and Begisters of Probate, duties of. Interest of Judge disqualifies. Same subject. Same subject. Same subject. Probate Court a court of Record. Deci'ees of Probate Court, how far conclusive. Same subject. Same subject, Virginia, Alabama. Same subject, Alabama. Same subject, California, Connec- ticut. Same subject, Georgia, Maine, Maryland. il9. 20. 21. 22. 23. 24. 25. 26. 27. 28. 29. 30. 31. 32. 34, Same subject, Massachusetts. Same subject, Massachusetts. Same subject, as to County of Besidence, Massachusetts. Same subject, Mississippi, New Hampshire. Same subject. New Jersey, New York. Same subject, Pennsylvania. Same subject. Plume v. Howard Saviiigs Institution. Administration upon estate of Per- son who is not dead. Jurisdictional Facts. Presumption as to Regularity of acts of Probate Court.' Effect of Irregularity in proceed- ings of Probate Courts. Instances of Irregularities. Effect of Probate of Will in an- other State. Effect of Decree of Probate Court in another State. Jurisdiction of WiUs of Real Es- tate. Same subject in United States. § 1. Origin of JuriscUction over Administrators. — In Eng- land, in early times, if a man died intestate and had made no disposition of his goods, nor committed the trust to any, the 1 2 LAW OP EXECUTORS AND ADMINISTRATORS. king as parens patriae used to seize, by his ministers, the goods of the intestate, to the intent that they should be pre- served and disposed of for the burial of the deceased, for the payment of his debts, to advance his wife and children if he ^had any, and if not those of his blood.^ Afterwards, this care and trust was committed to the ordinaries, officers of the church, on the ground that none could be found more fit to have such care and charge of his transitory goods, after the death of the intestate, than the ordinary who all his life had charge of his immortal soul.^ § 2. Origin of Jurisdiction over Administrators. — The ec- clesiastics, however, it is said, did not use the goods thus entrusted to them for such purposes but diverted them to the uses of the church, reserving to such pious uses one third of the goods of the intestate, and not paying any debts of his estate.^ This abuse was the cause of the statute of West- minster 2,* by which it was provided that when the goods of a deceased intestate came into the hands of the ordinary, he should be bound to pay the debts of the deceased so far as the goods sufficed, just as if he had been executor of the will of the deceased. Although the ordinary was thus com- - pelled to pay the debts of the deceased, he still was able, to retain a large part of the estate for the Church, and the flagrant abuse of this power is said to have occasioned the interposition of the legislature and the removal of the whole power of administration from the ordinaries,^ and the enact- ment of a statute,^ which provided that in case of intestacy the ordinary should depute of the next and most lawful friends of the deceased to administer his goods, which per- sons so deputed should have action to demand and recover, 1 Hensloe's Case, 9 Co. 38 6 ; 2 Bl. Com. 494. 2 Hensloe's Ca.se, 9 Co. 39 a.; Graysbrook v. Fox, Plow. 277a. ' Decret (Pope Innocent IV.), 1. 5, t. 3, c. 42; Fleta, 1. 2, c. 57, § 10. * 13 Ed. I. 0. 19 (1285). « 2 Bl. Com. 494. 8 31 Ed. III. c. 11 (1357). JURISDICTION OP PROBATE COURTS, 3 as executors, the debts due to the deceased in the King's Court, and should answer in the King's Court to others to ■whom the deceased was holden and bound, in the same manner, as executors, and should be accountable to the ordi- naries as executors are. This jurisdiction over administra- tions remained in the ecclesiastical courts till the Probate Act of 1857,^ by which that jurisdiction was taken entirely from the ecclesiastical, Eoyal Peculiar, Peculiar, Manorial and other courts, and vested in the Queen, to be exercised in her name by a court of probate. § 3. Origin of Jurisdiction over Executors. — The original jurisdiction as to the probate of wills and the appointment of executors in England is involved in some obscurity. The power of bequeathing is said to have been coeval in that country with the first rudinjents of the law, and there are no traces of a time when it did not exist.^ Mention is made of intestacy in the old law before the Conquest, as being merely accidental.^ It is apparent that in the times before the Con- quest the jurisdiction of probate was in the County courts, and wills were not regarded as of ecclesiastical conusance sua natura, but only such wills as were made for pious uses.* The bishop and the sheriff originally sat together in the county court, and among other matters took cognizance of the probate of wills.® William the Conqueror by charter separated the jurisdiction of the bishops from that of the lay officers, and forbade each to interfere with the courts or proceedings of the other, thus establishing two courts, and giving rise to the ecclesiastical jurisdiction, but he makes no mention of probate of wills as belonging to either court.^ § 4. Ecclesiastical Jurisdiction over Ezecutors. — Although 1 20 & 21 Vict. c. 77, §§ 3, 4 (1857). 2 2 Bl. Com. 491. * LL. Canut. c. 68. ^ Swinb. Pt. VI. § 11, p. 772, note*; Fonbl. Eq. Bk. IV. Pt. I. oh. 1, § 1. ^ LL. Edgar, c. 5; LL. Catmt. c. 17; Swinb. vibi sup. ^ Swinb. ubisup.; Fonbl. Eq. ubi sup. 4 LAW OP EXECUTORS AND ADMINISTRATOES. it does not appear how the bishops and lay officers divided their jurisdiction after this law, yet that of wills, it seems, went wholly to the bishop and clergy ,i and by the time of Henry II. or, according to Sir H. Spelman, in the reign of Henry I., this jurisdiction seems to have been well recognized,^ and continued until the probate act of Victoria above referred to. It must be admitted, however, that this jurisdiction came to the ecclesiastical courts, not as a matter of right, but merely by custom and usage, and was probably introduced under the pretext of executing the pious uses which were contained in many wills.^ § 5. Jurisdiction of Administration in the United States. — In the United States, jurisdiction over administrations, in- cluding the probate of wills, the granting of letters testa- mentary, or of administration ai^d the settlement of estates, distribution among the personal representatives and legatees, and other like administrative acts, is entrusted to courts which are variously named in different States, such as the Probate Courts, Surrogate's Courts, Orphans' Courts, Courts of Ordinary or County Courts. These courts will be con- sidered collectively under the general name of Probate Courts, unless particular facts render some more specific term necessary. The probate courts are successors, in point of jurisdiction, of the ecclesiastical courts to which reference has been made above, although the mode of procedure has been largely changed by statutory provisions in the various States.* § 6. Probate Courts, Constitution of. — Of the general con- stitution of these courts, it may be enough to say that they 1 Fonbl. Eq. Bk. IV. Pt. I. ch. 1, § 1. ^ Fonbl. Eq. ubi sup., note (ft); Hensloe's Case, 9 Co. 38. 8 Swinb. Pt. VI. § 11, p. 772, note »; Wentw. OfE. Ex. c. 4, p. 44. * Peters v. Peters, 8 Cush. 541, Shaw C. J. ; Blackinton v. Blackinton, 110 Mass. 462; Cecil v. Cecil, 19 Md. 79; Graham v. Houghtalin, 30 N. J. L. 560; Hayes v. Hayes, 48 N. H. 226; Finch v. Finch, 14 Ga. 366; McWillie v. Van Vacler, 35 Miss. 442. JURISDICTION OF PROBATE COURTS. 5 are ordinarily composed of a judge and clerk for each county in the State, one person often performing the duties of both offices. The judge has original jurisdiction of such matters as properly come before the probate court of that county, and decides them generally without the intervention of a jury. He has also power to issue warrants, and perform such other duties as are incident to the proper execution of his office.^ The various judges of the counties, either separately or together, or in some cases by order of the Supreme Court of Probate, establish the form of writs, and make various rules of practice adapted to secure the proper transaction of business in their respective courts, and uniformity so far as is practicable throughout the State.^ § 7. Judges and Registers*of Probate, Duties of. — The local jurisdiction of each probate judge ordinarily extends only over the county for which he is appointed ; but it is sometimes provided by statute that he may exchange with other judges when it is found necessary or convenient, and also that in cases where any judge is unable to act in any case, from interest or other reason, or is absent, and no other judge acts for him, or if there is a vacancy in the office, the register may designate some other judge who shall act in that county pro tempore. Except in such cases, any act by a judge of probate out of the county for which he is appointed, is void, unless of a merely ministerial nature, such as signing a blank writ.^ The duty of recording the proceedings and decrees of the court, as well as preserving papers filed in court and other 1 Mass. Pub. Sts. c. 156, §§ 1, 23. To give a fall citation of the various statutes upon this point would obviously be a matter of too great detail in a work of this nature, and the reader is therefore referred to the statutes of each State. 2 Mass. Pub. Sts. c. 156, § 22; Baker v. Blood, 128 Mass. 543; Chase V. Hathaway, 14 Mass. 227. 8 Mass. Pub. Sts. c. 158, §§ 3, 4; Lee v. Wells, 15 Gray, 459; Capper V. Sibley, 65 Iowa, 754. 6 LAW OP EXECUTORS AND ADMINISTRATORS. similar duties, are entrusted to a clerk sometimes called register of probate.^ An appeal from the decree of a county judge of probate is ordinarily provided to some general Court of Probate whose jurisdiction is appellate from the various counties in the whole State.^ § 8. Interest of Judge disqualifies. — It is in many States provided by Constitutiou or statute, and is also the rule at common law, that no judge should have any interest, either pecuniary, personal, or by affinity or consanguinity, in any cases that come before him. If he has such interest, he should recuse jurisdiction, and the case should be heard and decided by some other judge acting for him ; ^ for the settle- ment of an estate under the authority of a judge interested in iti is as inconsistent with the principles of natural justice, as it is repugnant to the positive enactments of legislature.* Any pecuniary or proprietary interest in the judge is suffi- cient to deprive him of jurisdiction. Thus if he is a creditor or debtor of the estate, or heir or legatee, he cannot act,^ or if he has an equitable interest as cestui que trusty or is ex- ecutor of a legatee ; ^ but the fact that the will contains a legacy in trust for the poor .of the town where the judge resides does not disqualify him;^ and in an early case it was said that although it was contrary to statute for the judge to act as agent or attorney of an heir or person interested in an estate within his jurisdiction, yet this was not such 1 Mass. Pub. Sts. c. 158, §§ 8, 9, 10; Chase v. Hathaway, 14 Mass. 227. 2 Mass. Pub. Sts. c. 156, § 5. * Mass. Pub. Sts. c. 158, §§ 4, 21 \ similar provisions are found in the Constitutions of Arkansas, Delaware, Maiyland, Mississippi, South Caro- lina, Tennessee, Texas; and in other States, in the statutes. ^ Cottle, App., 5 Pick. 483, per Morton, J. ; Mass. Bill of Eights, Art. 29. 5 Cottle, App., supra; Gay v. Minot, 3 Cnsh. 352; Northampton v. Smith, 11 Met. 390. In Massachusetts, such interest must exceed one hundred dollars, to work a disqualification. Mass. Pub. Sts. c. 158, § 4. ' Sigourney v. Sibley, 21 Pick. 101. ' Bacon, Ex p., 7 Gray, 391. ' Northampton v. Smith, supra. JURISDICTION OF PROBATE COURTS. 7 an interest as would deprive him of jurisdiction over the estate •■' § 9. Interest of Judge disqualifies. — A judge of probate who advises an executor as counsel, and whose bill for ser- vices is part of an executor's account, cannot pass upon that account, and if he assumes to do so, his acts are void.^ But if he has merely acted as counsel for a testator, and his employment has terminated before the death of the testator, he is not disqualified for taking jurisdiction of the case, even though he may be an important witness upon the probate of the will, if he is not a subscribing witness.^ In the case of John Hancock's will, it was held in the Supreme Court of New York, that a surrogate who received the money comprising the estate for safe custody pending proceedings before hini, and converted it wrongfully to his own use, was thereby made a debtor of the estate, and was disqualified to act ; * but this was reversed on appeal on ground of public policy.* § 10. Interest of Judge disqualifies. — For similar reasons a judge of probate should not act in any case where a near rela- tive or connection is one of the parties, or has a direct or apparent interest in the estate. Thus it has been held that he cannot act upon the application of his brother-in-law for appointment as administrator,® nor if his father-in-law, being a creditor of the estate, becomes a party to the proceedings in settlement ; but the fact that a near relative is a creditor of the estate, if such relative has not become a party to the proceed- ings, does not, it is said, deprive the judge of his jurisdiction." So it has been held that he is not incompetent to appoint an administrator cwm testamento annexo of the estate of his 1 Cottle, App., 5 Pick. 483. 2 Wigand v. Dejonge, 8 Abb. N. C. 260. 8 People V. Weiant, 30 Hun (N. Y.), 475. * Matter of Hancock, 27 Hun, 78. " s. o. 91 N. Y. 284. « Hall V. Thayer, 105 Mass. 219. 1 Aldrioh, App., 110 Mass. 189, 192. 8 LAW OF EXECUTOES AND ADMINISTEATORS. uncle's wife,^ nor to take jurisdiction of an estate of which his nephew's wife is distributee and legatee.^ In New Hamp- shire, however, it has been held that if the judge's wife is interested in the estate both as heir and legatee, such an interest disqualifies the judge to act, and he should refuse to sit, and thus bring the estate before the Supreme Court of Probate on appeal.^ A judge who has written or drawn up a will is disqualified to probate it;* but it has been held that a judge who is a subscribing witness may take probate of the will,^ but a judge who is executor of a will cannot properly perform both duties.® § 11. Interest of Judge disqualifies. — When the judge's in- terest is a direct pecuniary interest, this interest disqualifies him from acting in the case at all, unless such interest be relinquished or extinguished ; in which case his authority re- vives.^ Thus if the estate is insolvent and the judge does not prove his claim before the commissioners, his claim is barred and his acts are valid.^ In all cases where a judge of probate assumes to act in a matter for which he is disqualified by interest, his acts are void, and may be shown to be so in collateral proceedings.® Even the appointment of a special administrator is void.^" It has been held, however, in a recent case, that whatever 1 Russell V. Belcher, 76 Me. 501. 2 Nettleton v. Nettleton, 17 Conn. 542. * Perkins v. George, 45 N. H. 453. * Moses v. Julian, 45 N. H. 52. 6 Patten v. Tallman, 27 Me. 17. « Bedell v. Bailey, 58 N. H. 62. » Sigouraey v. Sibley, 21 Pick. 101 ; Bacon, Exp., 7 Gray, 391 ; Aldrioh, App., 110 Mass. 189, 193. 8 Cottle, App., 5 Pick. 482, 483. s Coffin V. Cottle, 9 Pick. 287; Gay v. Minot, 3 Cush. 352; Hall v. Thayer, 105 Mass. 219; Aldrich App., supra; Sigourney w. Sibley, supra; Wigand v. Dejonge, 8 Abb. N. C. 260; Moses v. JuUan, 45 N. H. 52: Bedell v. Bailey, 58 N. H. 62. i« Sigourney v. Sibley, 22 Pick. .507. JURISDICTION OP PROBATE COURTS, Q proceedings in the case plainly do not affect his interest may be had before the judge, and will be valid. Thus it was held, that, where a judge's only interest arose from the fact that his father-in-law was a principal creditor of the estate, the judge was not disqualified from probating the will, and although his appointment . of his brother-in-law as administrator de bonis non was void, yet the probate of the will which was taken at the same time was valid.^ § 12. Probate Court a Court of Record. — The nature of the jurisdiction of the probate court has been the subject of much discussion. The question has frequently arisen, whether the probate court is a court of record. The probate court is, now in the United States, by statute and decision, at least so far a court of record that its proceedings are recorded in writing.^ § 13. Decrees of Probate Court, ho'w far Conclusive. — The character of the jurisdiction of the probate courts is drawn into discussion most commonly in cases which involve the question, how far the decisions of a probate court are conclu- sive in collateral actions ; for instance, whether a defendant in a suit by an administrator or executor can defend, on the ground that the appointment of the plaintiff as executor or administrator is null and void. In the earlier decisions, there was plainly a tendency to hold that the probate court was a court of inferior as well as limited jurisdiction, and, this being the case, that it was competent to show in collateral proceedings that its acts were without jurisdiction, and there- fore void, even though such proof might contradict the recitals in its decrees as to jurisdictional facts. Thus it was held in several cases that it might be shown that the deceased 1 Aldrich, App., 110 Mass. 189. 2 Mass. Pub. Sts. c. 156, § 1; Tebbets v. Tilton, 24 N. H. 124; Chase V. Hathaway, 14 Mass. 227 ; Morgan v. Dodge, 44 N. H. 258 ; Maine Kev. Sts. c. 63, § 1; Carlysle v. Carlysle, 10 Md. 448; Dozier v. Joyce, 8 Port. (Ala.) 311; AUen v. Clark, 2 Black (Ind.), 344. 10 LAW OP EXECUTOES AND ADMINISTRATORS. resided ia another county than that iu which the executor or administrator was appointed, and that the appointment was therefore void, residence in the county being a jurisdictional requisite.^ § 14. Decrees of Probate Court, how far Conclusive. — But the later cases, particularly when supported by statutes dc' daring the probate court to be a, court of record, or similar provisions, are generally to the effect that if the subject-mat- ter of the decree questioned in a collateral proceeding was within the jurisdiction given to the probate court, then the decree of the probate court is conclusive in the same sense as the decrees of other superior courts are conclusive, and that its decrees need not recite the facts upon which the juris- diction depends, since these will be presumed in its favor ; ^ but if the subject-matter of the decree was not within the jurisdiction of the court, the decree is void, and may be shown to be so in collateral proceedings, as for instance, where the probate court has assumed jurisdiction of the settlement of the estate of one who is still alive.^ And it may be noted that the case of Beckett v. Selover, cited above, was over- ruled in a later case,* on the ground that by a then recent statute the proceedings of the probate courts within their jurisdiction are construed as are proceedings of courts of general jurisdiction. § 15. Same Subject. Virginia, Alabama. — This later de- cision accords with cases in Virginia and Alabama, where the question of residence was considered settled by the decree of the probate court, so far as regards collateral proceedings ; ^ and in Alabama it has been decided that when administration 1 Cutis V. Haskins, 9 Mass. 543; Holyoke v. Haskins, 5 Pick. 20; Beckett v. Selover, 7 Cal. 234; First Nat. Bauk of New Haven v. Balcom, 35 Conn. 358. 2 Plume t). Howard Sav. Instit., 46 N. J. L. 211. ' Jochumsen v. Suffolk Savings Bank, 3 Allen, 87. * Irwin V. Soriber, 18 Cal. 499. 5 Andrews v. Avory, 14 Gratt. 229; Coltart v. Allen, 40 Ala,. 155. JURISDICTION OF PROBATE COURTS. 11 has been granted in one county, and is then granted to an- other person in another county, the first grant is conclusive of the residence of the deceased, as against an attempt of the second appointee to have the first grant revoked by the court which made it, the court saying that the probate court is one of general jurisdiction and its decrees conclusive.^ It has also been held in the same State that if the probate court appoints an administrator de bonis non while there is an ad- ministrator in office, its acts are void, and the appointment may be attacked collaterally .^ § 16. Decrees of Probate Court, how far Conclusive. Ala- bama. — Again, it is said in several cases in that State that the jurisdiction of the probate court in the matter of the grant of letters testamentary and of administration, is original, gen- eral, and unlimited, — it is to that extent a court of general, not of limited and special jurisdiction ; and that liberal pre- sumption will be made in favor of its jurisdiction; and in a, case where the subject was fully considered, it was said that the probate court is one of general jurisdiction.^ In Miller v. Jones, a plea to the jurisdiction was held bad ; but it was said that the appointment of an administrator might be assailed in a suit by him, on the ground that the probate court had no authority to make the grant.* In regard to sales of property under a statutory authority, however, the probate court is considered in Alabama to be a court of limited jurisdiction, and its acts must show jurisdictional facts ; ^ and it may be concluded that the law in Alabama now is that a decree of the probate court is conclusive in col- lateral actions, unless it can be shown that the decree was beyond the jurisdiction of the court as to the subject-matter involved in the decree. 1 Coltarfc V. Allen, 40 Ala. 155. 2 Matthews v. Douthitt, 27 Ala. 273. 8 Gray v. Cruise, 36 Ala. 561 ; Broaghtou v. Bradley, 23 Ala. 694. * Miller v. Jones, 26 Ala. 259. ^ Ikelheimer v. Chapman, 32 Ala. 680. 12 LAW OP EXECUTORS AND ADMINISTRATORS. § 17. Decrees of. Probate Court, hovr far Conclusive. Cali- fornia, Connecticut. — In California, as has been already seen, a statute gives to the decrees of the court the effect of decrees of a court of general jurisdiction, and the benefit of the same presumption, and its jurisdiction cannot be questioned collaterally ; ^ but the same exception to this rule exists as in Alabama, that is, that decrees for the sale of land are made under a special statutory authority, and the pro- ceedings should show such facts as indicate a substantial compliance with the statute, so far as to support the juris- diction of the court in finding the necessity of a sale.^ In Connecticut, the decrees of the probate courts, in regard to matters within their jurisdiction, stand on the same footing as those of courts of common law,^ and are conclusive, and cannot be attacked in a collateral proceeding ; * but if such decrees concern matters outside the jurisdiction of the court they are void ; and in this State it is held, that if the deceased was not a resident of the county, the court had no jurisdic- tion and its act is void.^ § 18. Decrees of Probate Court, how far Conclusive. Georgia, Maine, Maryland. — In Georgia it has been recently affirmed that the court of ordinary is under the present code a court of general jurisdiction, and that its decree cannot be attacked collaterally oil the ground that the intestate resided in a different county,® and the same rule holds good of sales of land under the statute, as well as with reference to the ap- pointment of executors and administrators.^ In Maine, it 1 Irwin 0. Scriber, 18 Cal. 499; Brodribb v. Tibbits, 63 Cal. 80. 2 Pryor v. Downey, 50 Cal. 399 ; Dennis v. Winter, 63 Cal. 17. » Dickinson v. Hayes, 31 Conn. 422. * Dickinson w. Hayes, «u;)ra ; Potwine's App., 31 Conn. 381; Bulkley V. Andrews, 39 Conn. 5^3; Clarkson v. Beardsley, 45 Conn. 197; Clement V. Brainard, 46 Conn. 184. 5 First Nat. Bank v. Balcom, 35 Conn. 351. « Tant V. Wigfall, 65 Ga. 412. ' Tucker v. Harris, 13 Ga. 7; Woods v. Crawford, 18 Ga. 526. JURISDICTION OF PEOBATE COURTS. 13 was decided in Moore v. Philbrick,^ that the decree of a court of probate of one county appointing an administrator of the estate of a deceased who resided in another county, and whose residence was so recited in the decree, is void for want of jurisdiction, and that this might be taken advantage of in a collateral proceeding. This case followed the authority of the earlier Massachusetts cases. In Maryland, the Orphans' Court is called a court of special and limited jurisdiction, so far as that it cannot exercise any powers but what are given it by statute.^ But as to the con- clusiveness of its decree, it is held that the appointment of an administrator by an orphans' court of a county other than that in which the intestate resided, is conclusive and cannot be attacked in a collateral proceeding,^ and that a decree on a subject within the jurisdiction of the court is conclusive in a collateral action.* § 19. Decrees of Probate Court, how far Conclusive. Mas- sachusetts. — In Massachusetts, as we have seen, the probate court was not originally one of record,^ and in one of the earlier cases it was said to be a court of inferior jurisdiction, in such a sense that even when it has jurisdiction over the general subject, if it exceeds its powers and acts in a manner prohibited by law, its decrees are not merely irregular or voidable, but void and of no effect, and may be set aside in a collateral proceeding by plea and proof.® So where by statute, the probate court is given authority to award the whole real estate to one heir, upon his giving security to pay the other heirs a money equivalent for their share, and the court makes such award, but fails to take security, or other- wise does not follow the directions of the statute, the award 1 32 Me, 102. 2 State V. Warren, 28 Md. 355; Grant Coal Co. ». Clary, 59 Md. 445. 8 Raborg v. Hammond, 2 H. & G. 42; Shultz v. Houck, 29 Md. 26. 4 Blackburn v. Crauford, 22 Md. 466. 6 Chase v. Hathaway, 14 Mass. 226. * Peters v. Peters, 8 Cush. 543, per Shaw, J. 14 LAW OP EXECUTORS AND ADMINISTRATORS. is void ; ^ but the heirs may so act that they will not be allowed to set up this fact in a collateral proceeding, as, for instance, if they have had the money equivalent paid to them and have accepted it.^ § 20. Decrees of Probate Court, how far Conclusive. Massa- chusetts. — The early rule is qualified later by this remark, that when it is said that if the probate court clearly exceeds its powers, or does an act prohibited by law, even though it has jurisdiction of the subject-matter, its decrees are void, this is only one way of saying that when the jurisdiction of the court over the subject-matter is in any particular limited, then its decree is not binding if it oversteps the limits fixed.^ Thus where original administration was granted after twenty years from the death of the intestate contrary to the statute, the administration was held void in a collateral suit.* And so, where an illegal notice and citation was served on petition for removal of a guardian, the court was held not to have juris- diction and its decree was held to be void.^ § 21. Conclusiveness when Deceased did not reside in County. Massachusetts. — In regard to the jurisdiction in a county other than that in which the deceased resided, it is now provided by statute that the jurisdiction of the probate court, so far as it depends on the place of residence of a person, shall not be contested in any suit or proceeding, except in an appeal in the original case or when the want of jurisdiction appears on the same record ; ® and this statute has been so liberally construed that it is held not competent to show the appointment was obtained by fraudulent statements of the administrator as to the place of residence of the deceased.^ 1 Newhall u. Sadler, 16 Mass. 122; Jenks v. Howland, 3 Gray, 536; Hunt V. Hapgood, 4 Mass. 117; Sumner v. Parker, 7 Mass. 79. '-! White V. Clapp, 8 Met. 365. » Pierce v. Prescott, 128 Mass. 144; Jenks v. Howland, 3 Gray, 536. * Wales I'. Willard, 2 Mass. 120. « Baker v. Blood, 128 Mass. 545. « Mass. Pub. Sts. o. 156, § 4. ' McFeely v. Scott, 128 Maes. 16. JURISDICTION OF PROBATE COURTS. 15 It may be further said that the probate court is not one of inferior jurisdiction in such a sense that certiorari or writ of error will lie to amend its decrees.^ § 22. ' Decrees of Probate Court, hew far Conclusive. Missis- sippi, New Hampshire. — In Mississippi, decrees of the orphans' court on matters within its jurisdiction are conclusive, although the court is not one of general jurisdiction. Its decrees can only be attacked for fraud or mistake,^ and they have the usual presumption in favor of their regularity when they are drawn in question in a collateral proceeding.^ In New Hampshire, the decrees of the probate court on matters within its jurisdic- tion are conclusive in the same manner and to the same extent as the judgments of the other courts of record, but its decrees may be impeached by showing lack of jurisdiction or fraud.* § 23. Decrees of Probate CoTirt, bow far Conclusive. New Jersey, New York. — In New Jersey the orphans' 'court is said to be a court of general jurisdiction, with a seal, established term, and records ; ^ but if it acts beyond its jurisdiction, its decrees are void, — as if the supposed deceased were alive, or if letters lawfully granted to some one else were in existence, and the court should proceed to grant administration.^ In New York county, by statute, orders and decrees of the sur- rogate cannot be qnestioned even for want of jurisdiction, ex- cept on appeal or in a proceeding to set aside, open, vacate, or modify them ; "^ and both in this county and elsewhere, it is held that \h.e surrogate's decrees are conclusive when the sub- 1 Peters v. Peters, 8 Cush. 543 ; Smith v. Rice, 11 Mass. 512. 2 Griffith V. Vertner, 5 How. (Miss.) 736, 738. 8 Lum V. Reed, 53 Miss. 78. * Tebbetts v. Tilton, 31 N. H. 288; Merrill v. Harris, 26 N. H. 142; Morgan v. Dodger 44 N. H. 257. 6 Ryno V. Ryno, 27 N. J. Eq. 524; Den d. Obert v. Hammel, 3 Harr. 79. « Quidort V. Pergeaux, 18 N. J. Eq. 477; Ryno v. Ryno, 27 N. J. Eq. 524. ' Harrison v. Clark, 87 N. Y. 576; Kelly ». West, 60 N. Y. 144. 16 LAW OF EXECUTOKS AND ADMINISTEATOES. ject-matter and parties are within his jurisdiction.^ In this latter case, the surrogate granted administration, with a limi- tation giving the administrator power to prosecute a suit, but not to collect or compromise. This limited administration was declared within the discretion of the court, and his decree not void by reason of such limitation. § 24. Decrees of Probate Court, bow far Conclusive. Penn- sylvania. — In Pennsylvania the same general result which has already been indicated is now reached by statute, and the decree of the orphans' court in matters within its jurisdiction is conclusive in a collateral action, unless attacked for fraud or want of jurisdiction apparent on the record. Thus the probate of a will is conclusive of the execution of the will in an action of ejectment.^ In regard to sales of land under decree of the probate court there was in the earlier cases a tendency to treat the orphans' court as one of inferior jurisdiction, and to hold that its decree might be shown to be void in a collateral action, on account of not complying with the regulation of the statute in regard to the method of carrying out the sale.^ But in later cases this view was changed,* and if the proper jurisdictional facts are shown by the proceedings, that is, the statutory requisites for the sale, the decree is conclusive.^ In the same way, other States have held that the decree of the probate court on a subject within its jurisdiction is conclusive in a collateral action.^ 1 Harrison v. Clark, 87 N. T. 576; Morton v. Dry Dock, E. Broadw., & B. K. E. Co., 92 N. Y. 74. 2 Wilson V. Gaston, 92 Pa. St. 207; Leedom v. Lombaert, 80 Pa. St. 381; Lovett v. Matthews, 24 Pa. St. 330. ' Messinger v. Kitner, 4 Binn. 103; Fogelsonger v. Somerville, e Serg. & R. 267; Stoolfoos v. Jenkins, 8 Serg. & R. 173. * McPherson v. Cunlifi, 11 Serg. & R. 422; Painter v. Henderson, 7 Pa. St. 51. « Torrance ». Torrance, 53 Pa. St. 505. « Granbery v. Mhoon, 1 Dev. L. 456 ; Shroyer v. Richmond, 16 Ohio St. 465; Brown v. Gibson, 1 Nott & MoC. 326; Hendrick v. Cleaveland, JUEISDICTION OP PROBATE COURTS. 17 § 25. Conclusiveness of decree of Probate Court as to Juris- dictional facts. — The most satisfactory recent statement of the prevailing view in the United States as to the character and jurisdiction of the probate courts may be found in a recent case in New Jersey.^ In this case, the plaintiff was adminis- trator of one who had deposited money in the defendant insti- tution, and sued as administrator to recover the balance. The defence was that the orphans' court had no jurisdiction to ap- point an administrator, since there was no proof either of the death or last residence of the supposed intestate. The or- phans' court had granted the letters on the theory that the depositor had died resident in another State, and leaving as- sets in the county. The only proof of these facts was that the depositor, a Roman Catholic priest, had removed from the State about thirty years previous to the filing of this petition for let- ters of administration, and had been stationed by the orders of his church in Ohio and Nebraska, and had been last heard of about twenty years previous to the filing of the petition, and was alleged by the vicar-general of the diocese of Kansas to have died about twelve years previous to the same date, in Nebraska. There was some other slight evidence of the be- lief of relatives that the intestate was dead, and these facts were all verified by the affidavit of the person applying for the grant of letters. Mr. Chief Justice Beasley said : " Looking at the foregoing statement of facts, it is manifest that the orphans' court on the occasion in question had jurisdiction of the subject in- volved in the application for authority to administer the es- tate of (the depositor) as that of a deceased intestate. Such matter was as actually before that tribunal for its adjudica- tion as it was possible for it to be. We might perhaps doubt whether the court deduced the correct conclusion from the 2 Vt. 329; McFarland v. Stone, 17 Vt. 165; Franks ». Chapman, 65 Tex. 46. 1 Plume V. Howard Sav. Institution, 46 N. J. L. 211. 2 18 LAW OP EXECUTOES AND ADMINISTEATOES. testimony before it as to the fact of the death of the alleged decedent, or as to its right to grant administration, under the conditions of the case, to the plaintiff, but it seems illogical to deny the power of the court to take cognizance of the af- fair and to proceed to judgment. In the case of Grove v. Van Duyne, 15 Vroom, 654, the test of jurisdiction, so far as it re- lates to courts having a general cognizance over a class of cases, was declared by the Court of Errors to be the colorable presentation before it of the facts necessary to constitute the case a member of such class. In the present case there was plainly some proof of the death of the supposed intestate, and likewise of the fact that he was Jiot at the time of his decease a resident of this State ; and therefore, even if the court fell into error, which I do not intend to indicate, such error might have led in a proper course of law to a reversal of its judgment, but it can have no bearing against the rights of the court to adjudicate upon the facts before it. Upon this assumption, that this power of jurisdiction existed, it is apparent that the defendant in this instance must stand on the proposition that he has a right to show that the orphans' court decided incor- rectly with respect to the evidence relating to jurisdictional facts. But such a contention is opposed to the fundamental rules of law. If its correctness were admitted, it would at once degrade the judgments of the higher courts of the State to the subordinate ranks of official procedures of a special character by statutory authority. For example, on such a theory, a judgment of this court might be overthrown when put to the touch in a collateral proceeding, upon the ground that the court erred in deciding in the facts before it that the defendant in the suit had been summoned, when in point of fact he had not received any notice of the action. Notice of a suit to a defendant in an action is as indispensable to the power of the court to take cognizance of the case as is the fact of the decease of an alleged intestate to the jurisdictional au- thority of the orphans' courts to act in the matter of admin- JURISDICTION OP PROBATE COURTS. 19 istration, and no reason can be urged why if one of such subjects is open to incidental attack the other should not be equally so. In such a particular the highest court of the State cannot be discriminated from the orphans' court, for it is entirely settled by repeated judgments that this latter tri- bunal is a superior court of general jurisdiction, and that its proceedings and judgments are in no respect more contestable than those of common-law courts of the highest order. , . . And in view of these principles it appears to me incontestable that the defence in this case cannot prevail. Courts of general jurisdiction need not set forth in their records the facts upon which their right to adjudicate depends, but such facts will be presumed, and no evidence can be received to contradict them, as such intendments are praesumptiones juris et dejure. It is indeed this quality which constitutes the principal distinction between courts of superior and general jurisdiction and those of limited and special jurisdiction. The doctrine is unques- tionable, and is too rudimentary to justify discussion. Conse- quently, when the orphans' court of the county of Essex, having this matter by the requisite proceedings before it, awarded let- ters of administration in the present case, it will be intended, by force of the rule of law just stated, that it decided all the facts requisite to validate its action. If it had not been deemed to be satisfactorily shown that the alleged intestate was dead, and that he was not resident at the time of death in this State, and that the plaintiff, although not the original petitioner, could legally be appointed the administrator, the decree which was made could not have been made lawfully, and the conse- quence is that it must be held in this incidental proceeding, that such matters were passed upon by the court. To such a procedure the maxim omnia praesumuntur rite esse acta is applicable." § 26. Effect of Administration granted on estate of a Person who is Alive. — The most striking instance of a decree of a probate court which is rendered without jurisdiction, and is 20 LAW OP EXECtTTOES AND ADMINISTEATOES. therefore void, is the case of letters of administration granted upon the estate of one who is alive. In such a case it is held that, as the jurisdiction of the probate court extends over the estates of deceased persons only, the subject-matter of such letters is without the jurisdiction of the court, and the decree is void and of no effect, and any payments made to the admin- istrator are worthless ; nor is there any protection given by it to any of the acts of the administrator. The cases on this point are, with one exception, uniform.^ The only known case opposed to these decisions is that of Roderigas v. East River Saving Institution, 63 N. Y. 460, in which it was held that, under the statutes of New York requiring the surrogate to investigate the question of the death of the supposed deceased, his decision upon this fact was final, so as to give him jurisdiction to grant letters of admin- istration, and that these letters could not be attacked in a collateral proceeding. The facts in this case were almost pre- cisely the same as those in Jochumsen v. Suffolk Savings Bank, and the two decisions are directly opposed; but the weight of authority is with the Massachusetts case. All of the above were cases where no question was raised as to the existence of the supposed deceased. In a recent case in New Jersey, however, where the fact of the death of the supposed in- testate was presumed by the probate court from a lapse of more than seven years without news from him, and on slight corroborative evidence, in a suit by the administrator the decision of the probate court was attacked, and the Supreme Court held that there was some evidence of death, and that 1 Jochumsen v. Suffolk Sav. Bank, 3 Allen, 87; Devlin v. Common- wealth, 101 Pa. St. 273; Stevenson v. Superior Court, 62 Cal. 60; Burns V. Van Loan, 29 La. An. 560; Duncan v. Stewart, 25 Ala. 408; Thomp- son V. People, 107 111. 523; Griffith v. Frazier, 8 Cranch (U. S.), 23; D'Arusment v. Jones, 4 Lea (Tenn.), 251. In Maine, by statute, a per- son sentenced to death or imprisonment for life is supposed to be dead, and his estate is to be administered after his imprisonment. Kev. Sts. 0. 64, § 18. JUEISDICTION OP PROBATE COURTS. 21 it would not inquire whether the decision was erroneous or not.^ This case led to the enactment of a recent statute in that State, relating to the administration of the estates of persons presumed to be dead, and similar acts are now found on the statute books of many States.^ § 27. Jurisdictional Facts. — It must be admitted that while the rule is generally acknowledged, that, if the jurisdiction of the probate court over the subject-matter is admitted, its decree is conclusive, yet the question what facts are jurisdictional and what are not is often settled in dif- ferent ways in different States. The points most frequently raised in that connection are the residence of the deceased, the amount of property, the county in which it is situated ; these points will be discussed later under their appropriate headings. § 28. Presumption as to Regularity of acts of Probate Courts. — It is often said that, as the probate court is not a court of general but one of limited jurisdiction, the presumption applicable to courts of general jurisdiction that all their pro- ceedings are properly done, will not apply to the probate court, especially where the question is as to the authority of the court.3 But in Massachusetts it is enacted by statute, that when the validity of a probate decree is questioned in another suit, everything necessary to have been -done or proved in order to render the decree valid which might have been proved by parol evidence at the time of making the decree, and was not required to be recorded, shall after twenty years from the making the decree be presumed to have been done or proved, unless the contrary appears on the record.* And it is the law now generally, that if the probate court has jurisdiction of the subject-matter before 1 Plume V. Howard Sav. Institution, 46 N. J. L. 211. 2 Suppl. 1877-1886, Tit. Orphans' Court. * Jenks V. Howland, 3 Gray, 536. * Mass. Pub. Sts. c. 156, § 29. 22 LAW OF EXECUTOBS AND ADMINISTRATORS. it, the same presumptions are made in favor of its jurisdic- tion as support the judgments of other superior courts.^ § 29. Effect of Irregularity in proceedings of Probate Courts. — When the court has jurisdiction of a case, its decrees are conclusive in collateral proceedings although the proceedings of the probate court may have been defective or irregular. Such defects can only be taken advantage of in the original probate proceedings by appeal, and if not so taken, the decree cannot be otherwise assailed except for fraud.^ Thus when a probate court has approved and probated a will, a court of equity cannot annul or set aside the decree on the ground that the will is a forgery.^ So when the probate court ap- pointed a public administrator, it was held that in a collateral proceeding, this appointment was conclusive of the fact that there were no relatives or creditors in the State competent and willing to accept the trusts § 30. Instances of Irregularities not affecting Conclusiveness of Decree. — So, where one sued an administrator for services rendered during the last sickness of the intestate, and the defendant pleaded plene administravit, it was held that it was not competent for the plaintiff to impeach the account of the defendant, which had been allowed by the probate court, since the decree of that court having jurisdiction of the sub- ject-matter was conclusive.^ So where one was appointed administrator of the estate of a non-resident, on the ground that there was a judgment 1 Plume V. Howard Sav. Institution, 46 N. J. L. 211 ; and see the cases collected supra, § 13, et seq., on the question of the conclusiveness of the decrees of the probate court. 2 Pierce v. Prescott, 128 Mass. 140; Emery v. Hildreth, 2 Gray, 228; Thompson v. Thompson, 9 Pa. St. 234; Peebles' App., 15 Serg. & R. 39; Colton V. Ross, 2 Paige (N. Y.), 396; Probate Court v. Van Dnzer, 13 Vt. 135; McFarland v. Stone, 17 Vt. 165; Tebbets v. Tiltbn, 24 N. H. 120; Clark V. Pishon, 31 Me. 503. 8 Wolcott V. Wolcott, 140 Mass. 194. * Schnell u. Chicago, 38 111. 382. « Parcher v. Bussell, 11 Cush. 107. JURISDICTION OP PEOBATB C0UET9. 23 debt in favor of the intestate against an inhabitant of the county in which application was made, it was held that in an action on that judgment debt, it was not possible for the defendant to give evidence impeaching the regularity of the plaintiff's appointment as administrator, since the probate court had jurisdiction of the case, there being assets in the county where the appointment was made, and the decree of the probate court being therefore conclusive.^ So where 9, decree of distribution was passed by a probate court, order- ing the payment of a share of the estate to A. as adminis- trator of B., it was held that this was an adjudication that A. was legally appointed administrator of B., and that, the decree having been neglected by the administrator who was com- manded to pay over the share, his bond might be sued on for the benefit of the other administrator, and that the validity of the appointment of such other administrator could not be impeached in that suit.^ § 31. Conclusiveness of Probate of Will in einother State. -^ When a will made in one State is proved in another, under the provisions of the statutes allowing such probate, the effect of this probate is conclusive, although the will affects lands and has been probated in the other State, and is not valid according to the laws of the State where the land lies.^ § 32, Conclusiveness of decree of Probate Court in other States. — This conclusiveness of the decrees of a probate court in matters within its jurisdiction is, by virtue of the Constitution of the United States, extended to the decrees of other States, and they cannot be impeached except by showing fraud or that the court was acting without jurisdiction. Thus where a will was probated in Connecticut and was then offered in a Massachusetts court for the record which is provided by the statute, it was held that the probate in Connecticut was 1 Emery v. Hildreth, 2 Gray, 228. * White V. Weatherbee, 126 Mass. 450. 8 Dublin V, Chadbourn, 16 Mass. 433 ; Parker v. Parker, 11 Cush. 519. 24 LAW OP EXECUTORS AND ADMINISTRATORS. conclusive as to all matters affecting the yalidity of the will or its probate, for instance, as to the capacity of the testator, or the fact of undue influence.-^ § 33. Jurisdiction of Probate Court of wills of Real Estate. — An important addition to the jurisdiction of the ecclesiastical courts has been made in the courts of probate of this coun- try. By the law of England a will which clearly respected land only and no personal property, could not originally be proved in the ecclesiastical court ; and if it were attempted, a prohibition would issue from the common-law courts.^ If a will respected both land and goods, it was to be proved in the ecclesiastical courts, but this probate had no validity or effect in common-law courts, as far as the real estate was concerned ; consequently if the title to the land came in ques- tion in the common-law courts, the execution of the will had to be proved de novo? By the recent probate act, however, 20 & 21 Vict. c. 77 (1857), it is provided that when a will affects other than personal estate, if the proof is to be made in what is called solemn form, that is, on citation to all par- ties interested in the personal estate, or in any contentious business, the heir-at-law, devisees, or other persons having or pretending interest in the "real estate affected by the will, shall be cited, in the same manner as those interested in the per- sonal estate, to see the proceedings, and after such citation the probate of that will is conclusive evidence of the validity and contents of the will, as in the case of personal estate, and if probate is refused, that ■ decision also is conclusive against the will. § 34. Jurisdiction in T7mted States of -wills of Real Estate. — This partial attempt to avoid the necessity of proving the same will many times in different courts may be presumed to 1 Crippen v. Dexter, 13 Gray, 331. 2 Anon. 3 Salk. 22; Habergham v. Vincent, 2 Ves. Jr. 230, BuUer, J.; Netter v. Brett, Cro. Car. 395, Berkley, J. » Partridge's Case, 2 Salk. 553; Netter v. Brett, supra; Bull. N.P. 245. JURISDICTION OF PROBATE COURTS. 25 have been copied from the provisions of the statutes on this subject in many of the United States, by which wills of real estate are generally required to be proved in the probate courts, and after due proof and probate in such court, the decree allowing the will becomes conclusive evidence of the due execution of the will and of its contents.^ But in other States such as New York, New Jersey, Maryland, and South Carolina, this jurisdiction did not originally exist, and wills relating wholly to land could not be probated, and the pro- bate of a will was not evidence of the execution of the will so as to affect real estate.^ But now in these States a will of real estate may be probated, but the probate is only prima facie evidence of the validity thereof.^ The effect of such probate will be entered into later, 1 Mass. Pub. Sts. o. 127, § 7; Osgood v. Breed, 12 Mass. 533, 534; Dublin V. Chadbourn, 16 Mass. 440; Shumway v. Holbrook, 1 Pick. 116; Hutchins V. State Bank, 12 Met. 421; Potter ». Webb, 2 Greenl. 257; Small V. Small, 4 Greenl. 220, 225; Tompkins v. Tompkins, 1 Story, 547; Poplin V. Hawke, 8 N. H. 124; Judson v. Lake, 3 Day, 318; Bush v. Sheldon, 1 Day, 170 ; Bailey v. Bailey, 8 Ohio, 239 ; Lewis u. Lewis, 5 La. 387; Buzwell v. Elliott, 2 Band. 190, 200; Smith v. Bonsall, 5 Rawle, 80, 83; Stanley v. Kean, 1 Tayl. (N. C.) 93. 2 Jackson v. Legrange, 19 Johns. 386; Jackson v. Thompson, 6 Cow. 178; Rogers v. Rogers, 3 Wend. 514, 515; Harrison v. Rowan, 3 Wash. 580; Smith v. Steele, 1 Har. & McH. 419; Darby ». Mayer, 10 Wheat. 470; Crossland v. Murdook, 4 McCord, 217. 8 N. Y. Code Civ. Proc. §2627; Acts 1881, c. .535; Bailey v. Hilton, 14 Hun, 3; Allaire v. Allaire, 87 N. J. L. 317; Sally v. Gunter, 13 Rich. (S. C.) 75; Worthington v. Gittings, 56 Md. 549; Smith v. Bonsall, 5 Eawle, 80, 83; Kellum's Will, 50 N. Y. 298. 26 LAW OP EXBCUTOKS AND ADMINISTEATOHS. CHAPTER II. THE APPOINTMENT OP EXECUTORS AND ADMINISTEATORS. PLACE, TIME, PROPERTY, RESIDENT, AND NON-RESIDENT. 35. County of Appointment. §54. Property necessary for Jurisdic- 36. Bona notabilia. tion. 37. Bona notabilia in two Dioceses. 55. BoncC notabilia, Amount of. 38. Appointment in County of Resi- 56. Property requisite in United dence. States. 39. Eesidence and Domicil. 67. Same subject. 40. Facts constituting Domicil. 58. When no Assets. 41. Residence of Married Woman. 59. County of Appointment when de-- 42. Presumption of continued Eesi- ceased was Non-resident of State. dence. 60. Property necessary in such case. 43. Division of Counties. 61. Effect of Decree of Appointnient 44. Conclusiveness of Decree as to as to Property. Eesidence. 62. Same subject. 45. Same subject. 63. Some Property essentiaL 46. Question of Residence in Collateral 64. Simple Contract Debts, Property Proceedings. where. 47. Same subject. 65. Choses in Action, Property where. 48. Same subject. 66. Actions for Negligent Killing, 49. Limit of Time for Administration. Property where. 50. New Assets, Effect of. 67. Real Estate, when Assets. 51. Limit of Time. 68. Mortgage not Assets when paid. 52. Same subject. 69. Prima facie Title to Assets enough. 53. Late Grant void, 70. Property in several counties. § 35. County of Appointment. — Consideration will now be had of the question, in what county should application be made for an appointment as executor or administrator. In England, when the jurisdiction over administration was in the ecclesiastical courts, the court in which the testament of a deceased person ought to be proved or his estate ad- ministered was the court of the ordinary of the place where the deceased dwelt, that is, generally speaking, the court of the bishop of the diocese.^ 1 Wms. Ex'rs, 332; Godolph. Pt. I. c. 22, § 2; 2 Inst. 398; Com. Dig. Admin. B. 5. APPOINTMENT OP EXECUTORS AND ADMINISTBATORS. 27 § 36. Bona notabiiia. — But if the deceased at the time of his death had effects to such an amount as to be considered notable goods, usually called bona notabiiia, within some other diocese than that in which he died, then the will was to be proved before the archbishop or metropolitan of the province by way of special prerogative, whence the courts where the validity of such wills was tried and the offices where they were registered were called the prerogative courts and the prerogative offices of Canterbury and York.^ The consequence was that questions of no little difficulty often arose with respect to the inquiry whether the will was to be proved in the diocesan or in the prerogative court. And great inconvenience was also incurred where the deceased died possessed of goods in both the provinces of York and Canterbury. For it was held that if there were hona nota- biiia in two dioceses of one province and in two of the other, there must be two prerogative probates.^ § 37. Bona notabiiia in two Dioceses. — So if there were bona notabiiia in one diocese only of the province of Canter- bury and in one of the province of York, each bishop was obliged to grant probate,^ or if within one province the de- ceased had bona notabiiia in diverse dioceses, and in the other but in one diocese, then in the one place the will must have been proved before the archbishop and in the other place before the particular bishop.* * § 88. Appointment is in County of Residence. — In the United States, this subject is regulated by statute. It is generally the rule that if the deceased was an inhabitant of the State, application for appointment as executor or ad- ministrator must be made in the county in which he resided at the time of his death. If the deceased was not an inhabi- 1 Wms. Exee. 333; 4 Inst. 385. a Burston v. Ridley, 1 Salk. 39 ; Twyford v. Trpal, 7 Sim. 102. * Burston v. Ridley, supra. * Wms. Exec. 333; Wentw.OfE. Ex. 110, 111, 14tli ed. 28 LAW OP EXECUTORS AND ADMINISTRATORS. tant of the State such application may be made in any county where he left property, and if there is property in several counties such application may be made in any one of them, and the jurisdiction thus first acquired is exclusiye, and extends over the whole State. In some States, these rules are modified by limiting the application, in the case of non- residents, to the county where the greater part of the property is situated. In other States, real estate devised by will fixes the, jurisdiction, in the absence of personal property, while in others, the county of the death is in case of non-residence the county to which jurisdiction is given. The statutes of these various States are referred to below, as a full state- ment of them would be too extended for the body of this work.i § 39. Residence and Domica. — The residence within the county which confers jurisdiction upon the probate court is an actual domicil where the deceased dwelt and had his home,^ 1 Ala. Code, 1876, §§ 2304, 2349; Ariz. Comp. L. 1879, § 1519; Ark. Dig. Sts. 1884, c. 1, § 2; Cal. Deering's Code, Civ. Proceed. 1885, § 1294; Col. Gen. Sts. 1883, §§ 3493, 3523; Conn. Rev. 1875, p. 370, c. 11, § 9; p. 372, § 1; 1885, c. 110, §§ 140, 154; Dak. Lev. Code, 1883, Prob. Code, Tit. 1, § 7; Del. Rev. Code, 1874, c. 89, §§ 1, 8; Fla. Dig. 1881, c. 2, § 3; Ga. Code, 1882, §§ 2421, 2422, 2502 ; Idaho Rev. Laws, 1875, p. 238, c. 1, § 1 ; Illinois, Starr & C. Annot. Sts. c. 148, 11 [as to wills, and this is probably true as to administration, although there is no statute provision to that effect. See Bostw'ick v. Skinner, 80 111. 147] ; Ind. Rev. Sts. 1881, §§ 2228, 2580; 1881, Acts of, c. 45, § 12; Kan. Annot. Sts. 1876, § 1911, p. 377; Ky. Gen. Sts. 1873, p. 837, § 26; Me. Rev. Sts. 1883, c. 63, § .6; Md. Rev. Code, art. 49, § 9; art. 50, §§ 50, 70, 71; Mass. Pub. Sts. c. 156, §§ 23, 3; Minn. Sts. 1878, c. 49, § 2; c. 51, § 2; Miss. Rev. Code, 1880, §§ 1960, 1993; Mo. Rev. Sts. 1879, c. 1, § 4; Mont. Rev. Sts. 1879, p. 193, § 6; Neb. Comp. Sts. 1875, c. 23, § 177; N. H. Gen. Laws, 1867, c. 170, § 6; N. J. Rev. 1875, Orphans' Court, §§ 15, 27, 29; N. Y. Code Civ. Proc. § 2476 ; N. C. 1883, § 1374; Pa. Bright. Purd. Dig., Tit. Decedents' Est. § 13; R. L Sts. 1883, c. 179, § 3; S. C. Gen. Sts. 1883, §§ 1868, 1893; Tenn. Code 1884, §§ 3010, 3042; Tex. Rev. Sts. 1879, art. 1792; Vt. Gen. Sts. 0. 48, §§ 17, 18; Va. Code, c. 118, § 23; o. 126, § 4; Wis. Rev. Sts. 1878, § 3806. 2 Holyoke v. Haskins, 5 Pick. 20, 26. APPOINTMENT OF EXECUTOES AND ADMINISTBAT0E8. 29 and is referred to in, some States by the more concrete term of " mansion." The question of residence is one of fact, to be decided upon the circumstances, condition, and intention of the deceased. If a change of domicil is alleged, there must be proved both the fact of a change of actual residence and an intention to make this change a permanent change of domicil.^ Thus when one was seized of a house and land in a county where she had long resided, and went to another county to visit, and died while there, it was held that she had not changed her residence, the court saying that if she did this without having indicated by decided acts or declara- tions an intention to acquire another residence, her residence could not be considered changed.^ § 40. Pacts constituting Residence. — The fact that a per- son who lives in the country has a town house in which he spends the winter, and does this for a succession of years, is not enough alone to transfer his residence from the country to the city, although he may be actually living in his town house at the time of his death, the place of death of course having no significance in determining the place of residence.^ A person non compos may change his residence, and if it is done by the order of his guardian with the intention of making a permanent change, or if the person non compos is himself capable of forming such intention, it results in a change of domicil.* But where one was partially paralyzed and had softening of the brain, it was held that she was not in a condition to form an intention to change her residence.^ § 41. Residence of Married Woman. — A married woman who lives separate from her husband, without divorce or legal 1 Harvard College v. Gore, 5 Pick. 369. 2 Shultz V. Houck, 29 Md. 27. ' Harvard College v. Gore, supra. 4 Holyoke v. Haskins, 5 Pick. 20; Hill v. Horton, 4 Dem. (N. Y.) 88. 6 Ensor v. Graff, 43 Md. 291. 30 LAW OP EXECUTORS AND ADMINISTRATORS. separation cannot acquire a residence apart from his so as to change the jurisdiction.^ Where a married man and his wife resided in Baltimore, keeping a grocery store and liv- ing with his sister, and his wife suffered from paralysis and softening of the brain, and his sister finally refused to keep her any longer, and her husband, after several inef- fectual attempts to procure a boarding place for her in the city, took her to the house of a friend in a different county, to whom he paid board, but without making any permanent arrangements, and saying that he only came to stay for a time or to stay for the winter, and he kept his furniture still in his sister's home in the city, and claimed to live there and went to the city frequently to attend to his business, it was held that his residence and that of his wife was still in the city, and that, he having died while this state of facts existed, and she having died shortly afterwards, her state of mind prevented her from forming an intention of making any change of domicil.^ § 42. Presumption of Continuance of Residence. — A res- idence once acquired is presumed to continue until there is proved a change, and this change, as has been stated, must be not only an actual change of residence but must be intended to be a permanent change of domicil.^ If, however, one leaves his place of abode with a fixed intention of changing his residence, but has not decided where to live, and stays tem- porarily in another State, his former residence continues.* § 43. Division of Counties, Domioil. — It sometimes happens that one county is divided into two, and in such cases, if the intestate dies before the division his estate should be settled in the court of the original county, although the place of his 1 Paulding's Est., 1 Tucker (F. T.), 47. 2 Ensor v. Graff, 43 Md. 292. ' First Nat. Bank v. Baloom, 35 Conn. 351; Harvard College v. Gore, 5 Pick. 369. * First Nat. Bank v. Balcom, supra. APPOINTMENT OF EXECUTORS AND ADMINISTRATORS. 31 residence may be in the new county after the division,^ but if probate is begun in the original county before the division is made, it is competent for the court of that county to send the record to the court of the new county, if the place of residence is in that county .^ § 44. Conclusiveness of Decree of Appointment as to Resi- dence. — The question of residence is held to be a question upon which the judge of probate receives such evidence as is necessary to prove to him that the deceased resided in the county. It has been held in a few decisions, as we have previously seen, that his decision on this question may be questioned in collateral proceedings, and if the resi- dence is not in fact in his county, the grant of letters by him is void, and may be shown to be so in such collateral proceedings.^ § 45. Conclusiveness of Decree of Appointment as to Resir dence. — Although the decisions are not uniform on this sub- ject, yet it seems clear that if the record of the probate court shows that the deceased did not reside in the county in which the court had jurisdiction, this want of jurisdiction may be shown in any collateral proceeding, as the court has then acted without jurisdiction and its acts are void on their face,* and this defence may be interposed to an action by the ad- ministrator whether by plea in abatement or by plea in bar.^ In several cases, no defect of jurisdiction appeared on the record, the residence being described as of the county of the probate court, but the question of residence was gone into as a question of fact in a collateral proceeding, and it being found that the residence was in fact not in the county in which the probate court had jurisdiction, the appointment 1 Harlan's Est., 24 Cal. 182; Bugbee v. Surrogate of Yates Co., 2 Cow. 471. ^ McBain v. Wimbish, 27 Ga. 259. = See cases supra, § 13. < Moore v. Philbrick, 32 Me. 103; Mass. Pub. Sts. c. 15'6, § 4. ° Moore v. Philbrick, supra. 82 LAW OF EXECUTORS AND ADMINISTEATOES. of the administrator was held void. Thus where in ejectment the title of the plaintiff depended upon a sale of land by an administrator, to pay the intestate's debts, the court examined the question of residence of the intestate, and finding it to be in a different county from the probate court, pronounced the appointment of the administrator void,^ and the case was followed and affirmed by a later case ; ^ but the rule was changed by statute, providing that the jurisdiction of the probate court, so far as it depends on the place of residence of a person, shall not be contested in any suit or proceeding except on an appeal in the original case, or when the want of jurisdiction appears in the same record,^ and the question of residence is therefore settled in that State, even though it be offered to show that the judge of probate was misled by fraudulent statements of the administrator as to the place of residence of the deceased.* § 46. Question of Residence in Collateral Proceedings. — So in California it was at first held that the residence might be shown in a collateral proceeding in the probate court to be in another county, although the petition upon which the ad- ministration was granted described the residence as in the county of the probate court ; ^ but in a later case, tliis rule was changed, and the decree of the probate court was held conclusive, the court relying upon a statute passed since the earlier case, giving to the decrees of the probate court the effect of decrees of the district court.® The same conclusion, that the decree of the probate court was conclusive, was reached in a case in Virginia.^ And in a case in Alabama where the question came up in a slightly different manner this same principle was affirmed. In this 1 Cutts V. Haskins, 9 Mass. 543. = Holyoke v. Haskins, 5 Pick. 20. » Mass. Pub. Sts. c. 156, § 4. * McFeely v. Scott, 128 Mass. 16. 6 Beckett v. Selover, 7 Cal. 215, 234. « Irwin V. Soriber, 18 Cal. 499. ' Andrews v. Avory, 14 Gratt. 229. APPOINTMENT OP EXECUTOES AND ADMINISTBATOES. 33 case one was appointed administrator in one county, and an- other later in another county. The second moved the court which had appointed the first to revoke the letters. The court refused, and on appeal its action was sustained, the appellate court holding that the second administration was void.^ § 47. Residence in Collateral Proceedings. — In a case in Connecticut, where the grant of letters of administration was collaterally attacked on the ground of a mistake in residence, the court stated that the judgment of a court of limited juris- diction is never conclusive of a jurisdictional question, but the case did not necessarily involve that principle.^ In a case in Georgia in 1880 the same conclusion was reached as has been shown in the cases in Alabama and California, namely, that since the decree granting administration showed that the deceased was a resident of the county of the court, evidence to contradict this and show that he in fact resided in another county, and that therefore the administration was void, could not be received in a collateral proceeding.^ And this is in accord with the cases in Maryland,* even in pro- ceedings on petition for the revocation of the appointment. § 48. Residence not open in Collateral Proceedings. — In States where no decision upon this point has yet been made, it may confidently be asserted that, in view of the weight of authority and of the general tendency, which has already been shown, to hold the decrees of the probate court conclusive if the subject-matter is within its jurisdiction, the question of res- idence is not open in a collateral proceeding, unless the pro- bate record itself shows a defect of jurisdiction in this respect. Even in those States where this fact can be collaterally questioned, it is sufficient to support the decree to show that there was evidence on which the finding of the probate court 1 Coltart V. Allen, 40 Ala. 155. * First Nat. Bank v. Balcom, 35 Conn. 351. 8 Tant V. Wigfall, 65 Ga. 412. * Raborg v. Hammond, 2 Har. & G. 42; Shultz v. Houck, 29 Md. 26. 3 34 LAW OP EXECUTORS AND ADMINISTRATORS. might rest, and it is only when the case is such that the find- ing of the probate court must necessarily be wrong that the decree will be treated as Toid* This subject has been dis- cussed in a case in New Jersey,^ which has been previously examined, in treating of the proof of death as a jurisdictional fact.2 The principles stated by the court in that case were in substance, that the probate court is a superior court of general jurisdiction, and that its proceedings are no more contestable than those of the highest, common-law courts ; that its re- cords need not set forth the facts upon which its right to adjudicate depends, but such facts will be presumed if it has jurisdiction of the subject-matter of the case, and no evidence, can be received to rebut this presumption ; and that any juris- dictional fact which must have been decided in order that the probate court should pass the decree it has passed, is conclur sively settled by that decree as far as it is drawn in question, in any collateral proceeding. The particular question involved , in that case was whether the supposed intestate had died,, not being a resident of the State, and the court held that the decree of the probate court, assuming a jurisdiction which necessarily depended upon it« finding that he did so die, was conclusive of this point. § 49. Limit of Time of taking Administration. — In many States a period of time, is fixed within which original admin- istration must be taken out. In Massachusetts, this period is twenty years from the death of the testator or intestate ; but it, is also provided that if thereafter property, claim, or right accrues to the estate, or, belonging thereto, then first comes to the knowledge of any person interested, therein, original ad- ministration of that special property may be granted within five years next after it, accrues or becomes known.' » Plume V. Howard Sav. Instit., 46 N. J. L. 211, " See supra, § 25; infra, § 61. • Mass. Pub. Sts. c. 130, §§ 3, 4; Sts. 1885, c. 242. See Appendixof Statutes. APPOINTMENT OP EXECUTORS AND ADMINISTRATORS. 35 § 50. New Assets, Effect of. — The title to the property which SO accrues may be doubtful, and yet authorize the granting administration, for the probate court does not pre- tend to try titles to property. If this court is satisfied that there is a bona fide claim to property, such as is proper to be settled in a court of law, it will grant administration. Thus, when the property^ was a promissory note secured by a mort- gage, although the person opposing the grant had had adverse possession of the land for more than twenty years, the court granted the letters of administration.^ In that case the facts were that under the Massachusetts statute administration was applied for in 1879 on the estate of one who died in 1851, and that in 1879 mortgage notes belonging to the deceased for the first time came to the knowledge of the deceased's brother, who obtained administration thereupon. It was held, on appeal from the decree of the probate court, that the record of the mortgage in another State where the lands lay was not con- structive notice to him of the existence of the mortgage, and it was shown that he had not had actual knowledge of the mortgage or note.s.^ The rule as to time does not apply to administration de bonis non, which may be taken at any time.^ A will may be proved at any time, even after twenty years, in order to make a title to real estate.* §51. Limit of Time of Taking Administration. — In Con- necticut the limitation as to testate estate is seven years from the testator's death.^ In Iowa the statute limits the time to five years from the death of the decedent, or if he dies out of the State, from the time his death is known.® But this does not apply to an administrator de bonis non, there having ^ Parsons v. Spaulding, 130 Mass. 83. * Persons V. Spaulding, supra. * Bancroft v. Andrews, 6 Cush. 498; and see infra, § 214. * Shumway w. Holbrook, 1 Pick. 116. 6 Conn. Gen. Sts. 1875, p. 372, § 3; Lawrence's App., 49 Conn. 411. « Kev. Code, § 2367; Lees v. Wetmore, 58 Iowa, 179. 36 LAW OP EXECUTORS AND ADMINI8TEAT0E8. been a previous administrator,^ nor to administration granted as ancillary to that in another State.^ And in a collateral proceeding, where the appointment of an administrator of the estate of one dying out of the State is questioned, because it is proved that the appointment was made more than five years after the death, it will be presumed to have been made within five years from the time when the death was first known.^ § 52. Time Limit for Taking Administration. — In Maine the time is limited to twenty years, unless there is money due the es- tate from the United States ; but the limitation does not apply to foreign wills proved in another State.* In Maryland there is no statutory provision requiring parties entitled to administra- tion to apply within any given time ; nor in California.® Nor apparently is there any in Illinois.^ In Ohio the limit is twenty years, except for cause shown.^ In Pennsylvania no letters of administration can be granted after twenty years from the death of the decedent, unless upon good cause shown.^ § 53. Administration later than Time Limit, void. — It has been held in Massachusetts, where the statute provides that no administration shall be granted on the estate of a deceased person after twenty years from his death, that if the court grants original administration after the time limited has ex- pired, the grant is void, as the court has assumed a jurisdiction expressly denied by the statute, and this defence may be made in a collateral proceeding by plea in bar and proof.® But it may be doubted whether this decision would now be followed, as the date of the death is a fact which must be found by the court, and the tendency of the late decisions is unquestion- ably to regard the decree of the probate court conclusive in * Crossan v. McCrary, 37 Iowa, 684. " Woodruff V. Schultz, 49 Iowa, 430. » Lees V. Wetmore, 58 Iowa, 179. < Rev. Sts. 1883, e. 64, § 1. 6 Healy i-. Buchanan, 34 Cal. 567; Pollard v. Mohler, 55 Md. 289. e Fitzgerald o. Glancy, 49 111. 469. ' Rev. Sts. § 6014. 8 Bright. Dig., Deced. E.st. § 17. 9 Wales V. Willard, 2 Mass. 120. APPOINTMENT OP EXECUTORS AND ADMINISTEATOBS. 37 collateral proceedings if the subject-matter is within the juris- diction of the court, unless the error is apparent on the record.^ § 54. What Property necessary to Give Jurisdiction. — Personal property is the foundation of the grant of letters of administration, since the object of appointing an administrator is to use this property in paying debts, and then to distribute what remains among those who are entitled to it.^ And in England, until recently, the amount of property affected the jurisdiction of the court. The jurisdiction was prima facie in the bishop's court of the diocese in which the deceased dwelt, as we have already seen.^ But if the deceased at the time of his death had effects of such an amount as to be called hona notabilia, or notable goods, in some other diocese, then the jurisdiction shifted to the archbishop's court, as he had jurisdiction over both dioceses and could settle the estate in both places.* § 55. Bona notabilia, Amount of. — The amount in value of the property which constituted bona notabilia was £5, as fixed by the canons of the church;^ and this value was adopted by the ecclesiastical courts in England.^ It is to be noticed, however, that this limit of value affected only the jurisdiction as to administration, and did not affect the right to admin- istration. In the recent act of probate '< a somewhat similar distinction is made. It is there provided, that if the per- sonal estate of the deceased is less than £200 in value, and he was not seized or beneficially entitled to real estate of £300 in value, or upwards, the judge of the county court of the place where the deceased had a fixed place of abode, shall have the contentious business of the estate, whereas 1 See cases supra, § 14. 2 2 Bl. Com. 494; Palmer v. Allicock, 3 Md. 59. 8 Supra, § 35. * i Inst. 335. « 93^ Canon of 1603. 6 More V. More, 2 Atk. 158 ; Middleton v. Crofts, 2 Atk. 653. ' 21 & 22 Vict. c. 95, § 10. 38 LAW OP EZKCUTOES AND ADMINISTRATOES. all estates over those amounts are settled in the principal probate office. § 56. Property Requisite in United States. — In the United States, there is in a few instances a statutory provision that original administration shall not be granted unless the estate of the deceased is of a certain value. Thus, in Maine it is provided that original administration shall not be granted, unless it appears to the satisfaction of the court that there is personal estate amounting to twenty dollars, or debts to that amount and real estate enough to pay them.^ In other States, the statutes merely provide that administration shall be granted when a person dies, leaving goods, chattels, or personal estate in the State. There need only be prima facie evidence of the existence of such property. The action of the court is not dependent upon the weight of evidence. If the application be resisted, and proof be offered to show that the intestate left no property, it cannot avail unless it be clear and explicit and above all doubt. It is not designed by the statute in such cases, that questions of the title to personal property shall be decided in the probate court, upon a summary application for letters. Neither the organization of the court nor its mode of proceeding enables it to decide such questions satisfactorily .^ § 57. Amount of Property Necessary. — In a case arising in a State where no definite amount of property is required by statute, it has been said that if the intestate is a resident of the county, the non-existence of assets in the State would not make the administration void. In this case, how- ever, the question came up collaterally in a suit by the administrator, the defendant pleading this fact 'in defence, and being overruled.^ In a case in Massachusetts, Mr. Justice Gray says obiter, 1 Bean ». Bumpus, 22 Me. 549. See Appendix of Statutes. 2 Grimes v. Talbert, 14 Md. 172 ; and see infra, § 69. 8 Watson V. Collins, 37 Ala. 590. APPOINTMENT OV EXECUTORS AND ADMINISTKATOES. 39 " We are not aware that any particular amount of property has ever been held requisite to sustain a grant of original jurisdiction in Massachusetts." In this case, however, the deceased was not a resident of the State .^ In cases of administration de bonis non in Massachusetts there must either be estate valued at twenty dollars or debts due from the estate to that amount. If the latter exist, the former becomes immaterial,^ but a legacy is not a debt in such a case.^ § 58. Effect of no Assets. — It may be considered perhaps to be probably the law, that if an application for administra- tion was resisted, and conclusive proof offered that there was no estate on which the grant could operate in the State, administration would be refused. Thus, in a case in New York, where application was made for administration of the estate of a person who died over one hundred years before, and there was no proof of the existence of personal property, it was said by the court that while they did not intend to say that the existence of assets is essential to the jurisdiction of the surrogate, yet if it appears that there are no assets, or if the presumption from the lapse of time is that there are none, and no other reason is shown for granting administra- tion, it may be refused in the discretion of the court.* But this is a cas8 which would be of extreme rarity, and if there is conflicting evidence even, the decision of the judge of probate upon this question is not necessarily guided by the weight of the evidence, and if there is a possibility that there may be estate upon which the letters of administration will operate, he will grant administration.^ 1 Pinney v. MoGregory, 102 Mass. 186. 2 Pab. St. c. 130, § 9; Bancroft v. Andrews, 6 Cush. 494; Dexter v. Brown, 3 Mass. 32. 8 Chapin v. Hastings, 2 Pick. 361. 4 Van Giessen v. Bridgeford, 83 N. Y. 355. * Grimes v. Talbert, 14 Md. 172. In a case in California it was held that an administrator would not be appointed merely to enter an appear- 40 LAW OP EXECUTORS AND ADMINISTRATOES. In regard to the conclusiveness in collateral actions of the decision of the judge of probate upon the question as to the existence of personal property, the decisions on the same point when it arises in regard to the estates of non-residents are in point, and are referred to.^ § 59. When Deceased vraa Non-Resident. — In regard to the counfy in vrhich letters of administration should be granted when the deceased was not a resident of any county in the State, the statutes and decisions are unanimous that the application may be made in any county where any personal property of the deceased can be found, or where any real estate lies which can be sold to pay debts of the estate.2 § 60. Amount of Property in case of Non-Residents. — As to the amount of property sufficient to give the court juris- diction over estates of non-residents, it may be said that there is no special value generally necessary. If any property belonged to the deceased, it will confer jurisdiction even though it may be of small value, as, for instance, in one case small articles of furniture or of plate were held to be suf- ficient to confer jurisdiction in the county in which they were.^ In another case the question was discussed whether an old leather trunk was property which would give jurisdic- ance in a suit to quiet title, there being no property to be administered. Murray's Est., Myrick's Prob. 208. 1 See infra, § 61; see also Parsons v. Spaulding, 130 Mass. 83. 2 See statutes cited supra, § 38; Crosby v. Leavitt, 4 Allen, 410; Har- rington V. Brown, 5 Pick. 519; Bowdoin v. Holland, 10 Cush. 17; Emery 17. Hildreth, 2 Gray, 228; Pinney v. McGregory, 102 Mass. 186; Scott's Est., 15 Cal. 220; Hartford & New Haven R. R. Co. v. Andrews, 36 Conn. 214; Illinois Cent. R. R. Co. v. Cragin, 71 111. 177; Bowles v. Rouse, 3 Gilm. 409; Little v. Sinnett, 7 Iowa, 324; Lees v. Wetmore, 58 Iowa, 170; Patello V. Barksdale, 22 Ga. 356 ; Adams v. Brooks, 35 Ga. 63 ; Miller v. Jones, 26 Ala. 247; Ward v. Gates, 43 Ala. 518; Jefferson vi He R. R. Co. V. Swayne, 26 Ind. 477; Henderson v. Clarke, 4 Litt. (Ky.) 277; Steams V. Wright, 51 N. H. 611; Beers v. Shannon, 73 N. Y. 292. 8 Harrington v. Brown, 5 Pick. 519. APPOINTMENT OF EXECUTORS AND ADMINISTRATORS. 41 tion, but the jurisdiction was sustained upon a debt due the estate by a resident of the county.^ Neither is it necessary that the property thus forming the basis of jurisdiction should have been in the county at the time of the decease of the intestate, but it should be at the time of the probate proceedings.^ § 61. Conclusiveness of Decree as to Property. — Some vari- ance of authorities is found in regard to the conclusiveness in a collateral proceeding of the judgment of the probate court upon the question of property in the county. In Massachu- setts, in a case decided in 1869, where the action was brought by an administrator upon promissory notes signed by the defendants and payable to the order of the deceased and overdue, the decree of the probate court appointing the ad- ministrator contained the recital, " it appearing that the said deceased left estate in said county of Hampden to be administered." Evidence was offered to show that there was no property in the county. Mr. Justice Gray, in deliver- ing the opinion of the court, says, " If the facts necessary to give jurisdiction did not exist, the grant of administration is wholly void," and proceeds to examine the question whether there was property or not, deciding that the resi- dence of a debtor of the intestate was sufficient to give jurisdiction.^ And in a case decided in Connecticut about the same time, the question was gone fully into, whether a claim given by statute against a railroad for the negligent killing of the intestate was property in such a sense as to give the probate court jurisdiction to grant administration upon the estate of a non-resident. The question was raised in an action 1 Pinney v. McGregory, 102 Mass. 186. 2 Pinney v. McGregory, supra; Christy v. Vest, 36 Iowa, 287; Robin- spn V. Robinson, 11 Ala. 947; Stearns w. Wright, 51 N. H. 611; John- ston 0. Smith, 25 Hun (N. Y.), Superior Court, 171. ' Pinney v. McGregory, 102 Mass. 189. See also Harrington v. Brown, 5 Pick. 519; Emery v. Hildreth, 2 Gray, 228. 42 LAW OP EXECUTORS AND ADMINISTEATOES. brought by the administrators against- the railroad company, and the Supreme Court, after investigation, decided to maintain the jurisdiction of the probate court.^ § 62. Conclusiveness of Decree as to Property. — In a case in lowa,^ the title of the administrator of a non-resident was successfully disputed in a collateral proceeding, upon .the ground that the deceased left no property in the county where the letters were granted ; and in a later case, the court examined the question as to whether there was property in the county, deciding that there was, and upholding the ap- pointment of an administrator, but at the same time saying that the decision of the probate court was conclusive and Gould not be collaterally assailed.^ In a case in Alabama,* the court, in an action of detinue by an administrator, held that it was not concluded by the allega- tions as to property in the application for letters of admin- istration, but could look to the facts, and that, in fact, property was in the county at the time of the granting of letters, and it therefore sustained the letters. And in another case,^ it is said of a similar appointment that if there had been at the time of the appointment no assets belonging to the es- tate, in the county, the appointment would have been abso- lutely void, and would have been so declared when collaterally assailed ; but this was an obiter dictum. In a case in Indiana, where suit was brought by an ad- ministrator of a non-resident against a railroad compa,ny for causing the death of the deceased by its negligence, the com- pany petitioned the probate court to revoke the letters, on the ground that there were no assets in the county. It was ad- mitted that there were no assets except the cause of action 1 Hartford & New Haven R. R. Co. v. Andrews, 36 Conn. 214. 2 Christy v. Vest, 36 Iowa, 287. * Lees V. Wetmore, 58 Iowa, 170. See also Murphy v. Creighton, 45 Iowa, 179. * Miller v. Jones, 26 Ala. 247. 5 Bradley v. Broughton, 34 Ala. 707. APPOINTMENT OP EXECUTORS AND ADMINISTRATORS. 43 against -the railroad company, and the court said that if there were no assets, the grant was Toid, and further that the claim against the railroad was not assets,, as it was given by statute for the benefit of the widow and next of kin, and the grant was therefore void.^ § 63. Some Property essential to Grant of Iietters. — The general tendency seems to be to consider the existence of property of the deceased in the county at the time letters are granted to be essential to the jurisdiction of the court, and if in a collateral proceeding it is clearly shown that there was no property, the decree^ is void, but if the evidence is doubtful the decree will be sustained.^ Though it must be confessed that the decisions are not uniform, the court in a New York case, where the decree recited that the deceased died leaving assets in the county, holding that they were bound by this decree in a collateral proceeding. This case may possibly be explained by the peculiarly stringent statutes of New York in regard to the conclusiveness of the surrogate's decrees.^ § 64. Simple Contract Debts, Assets iwhere. — It is very generally held that a simple contract debt, due to the in- testate, is property in the county where the debtor resides, specialty debts are property in the county in which the bond or other obligation is, and judgment debts are property in the county in which the judgment is recorded.* A simple con- tract debt is property in the county where the debtor resides, although he may have removed into that county, and even 1 Jeffersonville R. R. Co. v. Swayne, 26 Ind. 477. " See cases supra, § 58; Plume v. Howard Say. Instit., 46 N. J. L. 21L; Beers v. Shannon, 73 N. Y. 292; Barclift v. Treece, 77 Ala. 528. * Leonard v. Columbian Steam Nav. Co., 84 N. Y. 48. * France v. Aubrey, 2 Cas. temp. Lee, 534; Byron v. Byron, Cro. Eliz. 472; Fernandes' Exec'rs Case, L. R. 5 Ch. 314; Swinb. Wills, Ft. 6, § 11, fol. 439; Vanghan v. Barrett, 5 Vt. 333, 337; Merrill v. New Eng- land Ins. Co., 103 Mass. 247, 248; Pioquet, App. 5 Pick. 64, 65; Emery v. Hildreth, 2 Gray, 228; Stearns v. WrigM, 51 N. H. 660; Little v. Sinnett, 7 Iowa, 324; Kohler v. Knapp, 1 Bradf. (N. Y.) Surr. 241; Beers v. Shan- non, 73 N. Y. 292 ; Arnold v. Arnold. 62 Ga. 627. 44 LAW OP EXECUTORS AND ADMINISTRATORS. into the State, since the decease of the intestate.' If the debtor is a corporation, incorporated in the State, its resi- dence for this purpose is the county in which it has its principal place of business.^ § 65. Choses in Action, Assets where. — And any cause of action belonging to the intestate's estate, and not arising from a specialty or judgment, is property in the county where the defendant resides. Thus, a cause of action against a life insurance company, on a policy payable to the deceased, is property sufficient to give jurisdiction in the State in which the company is incorporated and in the county in which it has its principal place of business.^ It has been held that an insurance policy is in New York assets in the county in which the policy is, but it did not appear in the case whether it was under seal or no.* But, as is shown above, it has been held in Massachusetts that such a policy is assets in the county where the insurer resides,^ which is probably the better opinion, as after the death of the insured the policy becomes a vested cause of action. A bond is assets in the county in which it is, being a specialty.^ But it is also held that when suit has been brought on the bond before the death of the obligee, the suit is property in the county where it is brought.'^ Shares of railroad stoclt have been held to be property, as far as concerns jurisdiction in the county where the stock-books are kept, transfers made, and dividends paid.^ § 66. Action for Negligent Killing, Assets where. — Questions have arisen whether a right of action against a corporation for causing the death of the intestate by the negligence of its 1 Pinney v. McGregory, 102 Mass. 186. 2 Merrill v. New England Ins. Co., 103 Mass. 245. ' Merrill v. New England Ins. Co., supra. * Johnston v. Smith, 25 Hun (N. Y.), 171. ^ Merrill v. New England Ins. Co., supra. 6 Beers v. Shannon, 73 N. Y. 292. ' Barclift v. Treece, 77 Ala. 528. 8 Arnold v. Arnold, 62 Ga. 627. . APPOINTMENT OP EXECUTORS AND ADMINISTBATOES. 45. servants, is property such as will authorize the grant of letters of administration so as to enable the administrator to sue on the claim. This right of action is generally given by statute, and much depends upon the form of the statute. If, for in- stance, the statute gives the administrator of the deceased the right to prosecute the claim for the benefit of the widow and next of kin, it has been held that the claim belongs to the widow and next of kin, by virtue of the statute only, and not as part of the estate of the deceased, and therefore it is not property in the county such as will authorize the grant of letters of administration upon the estate of the de- ceased intestate, being a non-resident.^ Such a right, also, as it depends upon the statute of a State, cannot be enforced out- side of the State, and is therefore considered not to be property outside the State where the statute was enacted.^ On the other hand, such a claim, if it is capable of enforce- ment, as where the death occurred in the State where the application for appointment is made, and the statute giving the right of action is a statute of that State, and the right is a part of the estate of the deceased, is held to be sufficient prop- erty to justify the appointment of an administrator.* § 67. Power of Sale of Real Estate, Assets when. — In most of the United States, statutes exist giving the executor or ad- ministrator authority in certain cases to sell the real estate of the deceased in order to pay his debts. This authority con- verts the real estate into property sufficient to give the pro- bate court of the county where the land lies, jurisdiction to grant letters of administration upon the estates of deceased persons who were not residents of the State at the time of their death.* And even if the deceased had conveyed his 1 Perry v. St. Jo. & West K. R. Co., 29 Kan. 420; Jeffersonville B. E. Co. V. Swayne, 26 Ind. 477. 2 Illinois Cent. R. R. Co. v. Cragin, 71 111. 177. See infra, §§ 368-370. » Hartford & New Haven R. R. Co. v. Andrews, 36 Conn. 213. * Prescott V. Durfee, 131 Mass. 477; Bowdoin v. Holland, 10 Cush. 17; Bowles V. Rouse, 8 111. 409 ; Spraybury v. Culberson, 32 Ga. 299 ; Ruther- 46 LAW OP EXECUTORS AND ADMINISTRATOES. real estate to others, yet if this was fraudulently done as to his creditors, a probate court may regard the conveyance as a nullity and grant letters of administration. Nor need the proof of fraud be such as would be required at law, when the title to the land is in question. In the probate court, the question is not the ownership of the land, but whether letters of administration should be granted, and the only proof ne- cessary is to satisfy the judge that there is reasonable ground for the averment that the real estate has been fraudulently conveyed.^ § 68. Mortgage not Assets when paid. — A mortgage is not property of a deceased mortgagee after the debt is paid, for if the payment was made at maturity it extinguished the legal title, and if later, so as to leave a legal estate in the mortgagee, still that estate would descend to his heirs in trust for the mortgagor, and not subject to be sold for the mortgagee's debts.2 An accountable receipt given to the sheriff by one to whom the sheriff has surrendered attached property, is not property of the person who owned the goods.^ § 69. Prima Facie Title enough. — In all these cases where the jurisdiction of the court depends upon the fact of property of the deceased in the county, it is not necessary to make out an absolute title of the deceased to the property in question. The title may be controverted, and it may be necessary to resort to courts of common law later to assert the title, but this will not prevent the granting of letters of administration. It is only necessary to satisfy the mind of the probate judge that a hona fide and reasonable claim is made to the property. If the claim is such that the probate judge must say that it is unfounded he will not grant administration, but otherwise he ford V. Clark, 4 Bush, 47; Temples v. Cain, 60 Miss. 478; Bisljop v. Lalouette, 67 Ala. 197; Little v. Sinnett, 7 Iowa, 324; Lees v. Wet- more, 38 Iowa, 170. 1 Bowdoin v. Holland, 10 Cush. 17. ' Crosby ». Leavitt, 4 Allen, 410. » lb. APPOINTMENT OP EXECUTORS AND ADMINISTRATORS. 47 will grant the administration, and leave the parties to settle their rights in the courts of law.^ And it has been already- seen that the decisions of the probate court on this point are treated with great liberality when they are examined in other courts collaterally, and if there is any ground for up- holding the decision of the probate court, it will be upheld, the only proper ground of declaring it void being the absolute inability of the court in which the decision is questioned to find any support in the case for the decision of the probate court.^ § 70. Property in Several Counties. — It often happens in case of the estates of deceased non-residents, that property belonging to the estate is found in several, counties. In such cases, the general principle, which applies to cases of con- current jurisdiction of two courts isi followed, and the court of the county in which proceedings to settle the estate are first begun takes jurisdiction over the whole State, and no other court can proceed in settlement of the same estate.^ Similar to the jurisdiction of the probate courts to grant administration upon the estates of non-residents, is a juris- diction, which is given by statute to those courts in most States, to admit to probate wills already proved in other States or countries. In such cases, the. same principles as to juris- diction apply as in cases of non-residents, and the will may be proved in any county in which there is real or personal property upon which it may operate.* Real estate which the deceased bought with another's money and which has been held adversely by that other long enough to acquire title by adverse possession, will not support the jurisdiction.^ 1 Grimes v. Talbert, 14 Md. 169; Parsons v. Spanlding, 130 Mass. 83; Bowdoin ». Holland, 10 Cush. 17; Sullivan v. Fosdibk, 17 N. T. Superior Ct. 173. 2 See supra, §§ 14-18. » Mass. Pub. Sts, c. 156, § 3; People v. White,, 11 111. 841. * Mass Pub. Sts. c. 127, § 15. ' See Appendix of Statutes. 6 Ripley w. Bates, 110 Mass. 161. 48 LAW OF EXECUTORS AND ADMINISTRATORS. CHAPTER III. WHO ARE INCOMPETENT TO BE EXECUTORS AND ADMINISTRATORS. 71. Who may he Executors. §90. Improvidence is Habit of Mind. 72. Same subject. 91. Poverty and Insolvency. 73. Infancy a Disability. 92. Alienage, Non-residence. 74. Same subject, in United States. 93. Alienage, Georgia, Illinois, Ken- 75. Unmarried Woman Competent. tucky. 76. Married Woman, how far Compe- 94. Non-residence, Iowa, Maryland, tent. Michigan, Vermont. 77. Same subject. Statutory Changes. 95. Same subject, New York, Rhode 78. Statutory provisions, (Jeorgia, Island. Connecticut. 96. Same subject, Power of Appoint- 79. Same subject, Delaware, Illinois, ment. Maryland. 97. Same subject, Alabama, Connec- 80. Same subject, New York, Massa- ticut. chusetts. 98. Corporations, how far Competent. 8i: Effect of Marriage. 99. Same subject. 82. Same subject. 100. Beligious Belief, how far a Dis- 83. Convicts of Infamous Crime in- qualification. competent. 101. Surviving Partner sometimes 84. Canon and Common Law. Disqualified. 85. Idiots, Lunatics, Insane Persons. 102. Miscellaneous Decisions as to 86. Rule as to, where no Statute. Disqualification. 87. Inability to Read or Write, or 103. Absolute and Discretionary In- speak English, how far Dis- competency. qualification. 104. Competency discretionary with 88. 89. Drunkenness, Improvidence. What is Improvidence ? Court, when. § 71. Who may be Executors. — Having discussed the ques- tion as to the proper courts in which to apply for letters tes- tamentary or of administration, we will proceed to discuss the question, who are incompetent to be executors and adminis- trators, as a preliminary to the question, who may claim the right to be appointed executors or administrators. As to executors, the first requisite to the appointment of any person is that he be named in the will as executor. An executor, as defined by Blackstone, is he to whom another WHO ARE INCOMPETENT. 49- man commits by will the execution of that his last will and testament.^ The full effect of this definition will be con- sidered later, in discussing the question, who may claim the right to be appointed executor. § 72. Who may be Executors. — All persons are capable of being executors that are capable of making wills, and many more besides, — as /ewes coverts and infants; nay, even infants unborn or in ventre sa mere may be made executors.^ And this rule is further elucidated by Swinburne, who says, " From the earliest time it has been a rule that every person may be an executor, save such as are expressly forbidden." ^ As the same disabilities apply generally to the offices of both executors and administrators, in the United States, where the subject is commonly regulated by statute, it is proposed to discuss the two classes of disabilities together, discriminating between them whenever it is necessary for a more complete understanding of the subject. And the reader is referred to the appendix of statutes at the end of the book for the rules in the various States in detail. § 73. Infancy a Disability. — Infancy has always been to a limited extent one of the recognized disabilities to acting as either executor or administrator, although, as has been before said, it was said to be no objection to being named as executor, even before the infant's birth.* And if a child in ventre sa mere was named as executor, it was the law in England that if the mother gave birth to more than one child, they were all to be admitted as executors.^ By common law, however, no infant could act as executor till he reached the age of seventeen, nor could one act as ad- ministrator till he was of full age.^ And by later statute in 1 2 Bl. Com. 503; Wood's Est. 36 Cal. 82. 2 2 Bl. Com. 503. « Swinb. Pt. 5, § 1, H. 1. « Wentw. Off. Ex. c. 18, p. 890; 2 Bl. Com. 503. » Godolph. Pt. 2, c. 9, § 1. • 2 Bl. Com. 503; Wentw. Off. Ex. o. 18; Goods of Duchess of Orleans, 1 Sw. & Tr. 253. 50 LAW OF EXECUTORS AND ADMINI8TEAT0ES. England, if the infant was named as sole executor, the period of his disability was extended to cover the whole period of his minority.^ In both cases, if the person entitled to be executor or administrator was under age, and was the only person so entitled, administration was granted during his minority to some other person, as the court saw fit, — in case of an infant executor generally to his guardian.^ This rule gave rise to the limited form of administration which is called adminis- tration durante minoritate, and which will be discussed later.^ If there were other executors named in the will in such case, they received their appointment, and acted until the infant executor reached full age, when he was admitted as executor with the others.* § 74. Infancy a Disability in the Unitea States. — These prin- ciples of the English law have been generally adopted in the United States, and a person who is under twenty-one years of age is held incompetent to act either as executor or admin- istrator. If such an one is named as sole executor, or is alone entitled to administration, administration durante minor- itate should be granted to some suitable person, preferably his guardian. If there are other persons named as executors, they should be appointed, and act till the minor becomes of full age, when he may join them in the administration.^ Exceptions to this rule are, however, found in several States. Thus in Maryland, the age at which a person becomes com- petent to act as executor or administrator is eighteen years, 1 38 Geo. m. 0. 87, § 6. 2 38 Geo. in. c. 87, § 6; Goods of Duchess of Orleans, 1 Sw. & Tr. 253; Blanok v. Morrison, 4 Dem. 297. 8 Infra, § 218. * Williams Ex'rs, 271. 6 Ala. Code, 1876, § 2340; Cal. Code, Civ. Proceed. §§ 1350, 1369; Del. Rev. Code, 1874, c. 89, § 11; Fla. Dig. 1881, c. 2, § 2; 111. Cothr. Rev. Sts, 1883, c. 3, § 3 ; Ind. Rev. Sts. 1881, §§ 2222, 2230; Me. Rev. Sts. 1883, c. 64, § 17; Mass. Pub. Sts. c. 129, § 4; c. 130, § 7; MoGooch v. Mc- Goooh, 4 Mass. 348; N. Y. Rev. Sts. Pt. II, o. 6, tit. 2, art. 1, §§ 3, 32; Blandt ». Morrison, 4 Dem. 297; R. I. Pub. Sts. o. 184, § 1; Vt. Gen. Sts. 1870, c. 50, § 6. And see Appendix of Statutes. WHO ARE INCOMPETENT. 51 and in order to provide security for his proper management of his estate, it is further provided that the bond given by a minor appointed executor or administrator binds him as if he were of full age.^ In Georgia a minor may be appointed and act as executor if this is expressly directed by the tes- tator,2 and the widow may be appointed as administrator, irrespective of age ; ^ and in Arizona a surviving husband or wife may be appointed executor or administrator though under twenty-one years of age.* In New York it is pro- vided by statute that the letters durante minoritate must be granted to the guardian of the infant who is entitled to the administration.^ § 75. Unmarried ■Women Competent. — It has always been held that unmarried women are on the same footing as men, as regards capacity to be administrators or executors.® There are cases, however, in which a choice arises among several who are equally entitled to be administrators as being equally near of kin to the intestate, and a man might in such cases be preferred to a woman as being better fitted for administer- ing the estate. These cases will be more properly discussed later, in the section which treats of those entitled to claim administration.^ § 76. Married 'Women, how far Competent. — A married woman by the canon law might be either executrix or ad- ministratrix without the consent of her husband.^ By the common law, however, the assent of her husband was neces- sary, as he must enter into the administration bond.^ If she 1 Md. Kev. Code, 1878, art. 50, §§ 60, 66, 67, 74; Davis ». Jacquin, 5 Har. & J. 110. 2 Ga. Code, 1882, § 2439. » § 2494. * Ariz. Comp. L. 1877, § 1559. 5 Blanck v. Morrison, 4 Dem. 297. « Brown v. Wood, Aleyn, 36. ' See infra, § 170. 8 Godolph. Pt. 2, o. 10, § 3. 9 Com. Dig. Admr. B. 6; ib. D; Wentw. Off. Ex. 377; Thrustout v. Coppin, 2 Bl. 801. 52 LAW OF EXECUTORS AND ADMINISTEATORS. objected to assuming the office, the husband could not compel her to proceed in it,^ but he might proceed himself in the ad- ministration, and she could not object during his life.^ After his death, if she had never intermeddled with the administra- tion, she might refuse to enter into it.^ § 77. Married 'Women, how far affected by Statute. — In the United States, in accordance with the prevalent idea of giving married women an equal status with men, the rules of the common law upon this subject have suffered material changes. It may be premised that in those States where the subject has not been specifically changed by statute, the rule remains as at common law. A married woman may be appointed either executrix or administratrix, with her husband's consent, which in some States must be in writing and filed with the judge of probate. If this consent is given and the wife is appointed to the office, the husband joins her administration bond and becomes jointly liable with her for all her acts, and may him- self assume the conduct of the administration.* In California, and those neighboring States whose statutory code is based upon that of California, statutes provide that a married woman, if she is named as executrix bj- the testator, may serve as if sole, but that no married woman shall be appointed administratrix.^ § 78. statutes as to Competency of Married Woman. — Georgia, Connecticut. — In other States, by statute, a married woman may be appointed either executrix or administratrix with the same effect as if she were a feme sole. Thus in 1 Godolph. Pt. 2, c. 10, § 1 ; Wentw. Off. Ex. 376. = Godolph. Pt. 2, c. 10, § 1 ; Wentw. Off. Ex. 378; Waukford v. Wauk- ford, 1 Salk. 306, joer Ld. Holt; Thrustout v. Coppin, 2 Bl. 802. ' Stokes V. Porter, Dyer, 166; Beynon ti. Golbins, 2 Bro. C. C. 823; Adair v. Shaw, 10 Sch. 8e Lef . 258. * Ala. Code, 1876, §§ 2342, 2355; Ind. Rev. Sts. 1881, § 2230; Gyger's Est., 65 Pa. St. 311; Guldin's Est., 81 "Pa. St. 362; Stewart's App., 56 Me. 300. See Appendix of Statutes. 6 Cal. Code, Civ. Proc. §§ 1352, 1370; Teschemacher v. Thompson, 18 Cal. 20. See Appendix of Statutes. WHO ABB INCOMPETENT. 53 Georgia a married woman may act in either of these offices and her separate estate is bound as if she were sole,^ though previously she was disqualified by statute from acting in these capacities.^ In Connecticut a married woman may be execu- trix or administratrix if she is the heir-at-law of the deceased, without her husband's consent. In such a case, she may sue and be sued as if sole, and her husband is not liable for her acts, unless he directs them. She may give a separate bond, and all her estate is liable if her husband indorses his consent on the bond, but if he does not, only her separate estate is liable.^ § 79. Married 'Woman, how far Competent. Delaware, Illi- nois, Maryland. — In Delaware the subject remains nearly as at common law, and a married woman may be executrix, and either she or her husband in her right may administer. Both however must join in the administration bond, and it binds her notwithstanding her coverture, though probably her personal liability would be limited to her separate estate.* In Illinois, if a married woman is appointed executrix, her husband may give bond for her.^ In Maryland no married woman can be executrix unless her husband gives bond for the faithful performance of her duties, but otherwise a mar- ried woman is competent for either office.® § 80. Married 'Woman, Competency of. New 'Y'ork, Massa- chusetts. — In New York, until the act of 1867, the written consent of the husband was necessary .'' But by the later statute, a married woman may act in either office as if sole.^ In Massachusetts the husband's consent is not required to the 1 Sts. 1882-3, c. 327. '^ See Leverett v. Dismukes, 10 Ga. 98. 8 Conn. Acts, 1882, c. 62. < Del. Rev. Code, .1874, c. 89, §§ 5, 14. 6 111. Kev. Sts. 1883, o. 3, § 3. 6 Md. Eev. Code, 1878, art. 50, §§ 66, 74; Binnerman v. 'Weaver, 8 Md. 523. See Appendix of Statutes. » N. Y. Rev. Sts. Pt. II. c. 6, tit. II. art. 1, §§ 3, 32. 8 Acts 1867, c' 782, § 2 ; Curser, Matter of, 25 Hun, 579 ; 'West v. Mapes, 4 Redf. 496. 54 LAW OP EXECUTORS AND ADMINISTRATORS. appointment of a married woman as executrix or administra- trix,^ and as a married woman is capable of making a valid contract and may sue and be sued alone, there seems to be no reason why he should join in her bond.^ § 81. Eflfeot of Marriage, — If an unmarried woman is ap- pointed executrix or administratrix and marries, the result at common law was that she was supposed by her marriage to consent to her husband's administering for her, and the ad- ministration would thereupon be conducted as if she had been married when she was appointed to the office.^ This rule has been changed by statute in several of the United States, and it is provided that if an unmarried executrix or administratrix marries, her authority ceases, and if she is alone in the office, an administrator de bonis non should be appointed.* § 82. Effect of Marriage. — Except when this statutory change is made, the rules of the common law apply, and the husband in such case becomes joint administrator with all the rights and privileges, and jointly liable.^ But it has been held in Alabama that she may resign the office without his consent,® and after his death she becomes sole administratrix again.' In Massachusetts an early statute provided that if a feme sole who was joint executrix or administratrix married, her authority was extinguished.^ But as this statute had no ef- fect upon the common-law rule, when the feme sole was sole executrix or administratrix,' a later statute of similar im- 1 Mass. Pub. Sts. c. 147, § 5. ^ Mass. Pub. Sts. c. 147, §§ 2, 7. » Wentw. Off. Ex. 379. * Cal. Code, Civ. Proc. §§ 1352, 1370; Ohio Rev. Sts. 1880, § 6022; E. I. Pub. Sts. c. 184, §§ 19, 20; Vt. Gen. Sts. 1870, c. 50, §§ 8, 12; Field V. Torrey, 7 Vt. 372. See Appendix of Statutes. ' Woodruff V. Cox, 2 Bradf . 153 ; Kavanaugh v. Thompson, 16 Ala. 817 ; Wood V. Chetwood, 27 N. J. Eq. 311; Barber v. Bush, 7 Mass. 510) Swan V. Wilkinson, 14 Mass. 295. « Rambo v. Wyatt, 32 Ala. 363. ' Pistole V. Street, 5 Port. 64. e Sts. 1783, c. 24, § 19; NeweU v. Marey, 17 Mass. 341. * Swan V. Wilkinson, supra. WHO AEE INCOMPETKNT. 55 port was enacted to cover the latter case.^ At the present time, under the statute allowing a married woman to be ex- ecutrix or administratrix, as if sole, these statutes are con- ceived to be without force. § 83. Convicts of Infamous Crime incompetent. — In many States persons who have been convicted of an infam Wms. Ex'rs, 280; Hartnett v. Wandell, 60 N. Y. 350; Mass. Pub. Sts. c. 129, § 2; Grant v. Spann, 34 Miss. 801. 2 Swinb. Ft. 1, § 5, pi. 5; Godolph. Pt. 1, c. 1, § 3; Geans v. Price, 32 L. J. N. 8. P. M. & Admr. 113. 8 Swinb. Pt. 5, § 4, pi; 3; Godolph. Pt. 2, c. 5, § 2; Manley, Good.s of, 3 Sw. & Tr. 56; Grant v. Spann, 34 Miss. 294; Nunn v. Owens, 2 Strobh. WHO MAY CLAIM APPOINTMENT AS EXECUTOR. 69 universal legatee, in trust for the widow and children, and with the duty of dividing up the property, the court were inclined to think it amounted to the appointment of him as executor.^ So where the will read " I want A. to attend to my business as executor," it was held an appointment of A.^ So it has been held that if one gives his goods after his death to A., to pay his debts and otherwise dispose at his pleasure, or to that effect, it is equivalent to appointing A. his ex- ecutor.3 So if the testator says " I commit all my goods to the administration of A.," * or " to the disposition of A.," in this case he is made executor.^ So where one is directed to pay the debts, funeral charges, and expenses of proving the will, it has been held to constitute him executor.® § 107. Appointment by Implication. — Again, an executor may be appointed by necessary implication, arising from the use of language which shows the intention of the testator to appoint him, although there is no appointment totidem verbis. Thus if the testator says " I will let A. be my ex- ecutor if B. will not," this gives B. the right to the office.'^ So where one of two legatees was appointed executor in case another was not living after the death of the testator, this was held to give the latter a right to be executor by implication.® § 108. Words of Will construed by Court. — But in every case it is a matter of construction for the probate court (S. C.) 101. Carpenter ». Cameron, 7 Watts, 51; Hartnett w. Wandell, 60 N. Y. 350, 351. 1 Grant v. Spann, 34 Miss. 294. 2 Niinn 0. Owens, 2 Strobh. (S. C.) 101. 8 Henfrey v. Henfrey, 4 Moore, P. C. 33. ' i Godolph. Ft. 2, o. 5, § 3; Bro. Ex'rs, PI. 73. ^ Pemberton o. Cony, Cro. Eliz. 164. * Fry, Goods of, 1 Hagg.-SO; Montgomery, Groods of, 5 Notes of Cas. 92, 101. 7 Godolph. Ft. 2, 0. 5, § 3; Swinb. Ft. 4, § 4, pi. 6. 8 Naylor v. Stainsby, 2 Cas. temp. Lee, 54. 70 LAW QP EZECUTOES AND ADMINISTEATOES. whether, upon the language of the will, the applicant is to be considered entitled to appointment, and it should be remem- bered that an executor may not be instituted nor the office of executor inferred only by conjecturals.^ Perhaps in some of the United States, under the express terms of statute, it would be held that an executor must be called such expressly, although in at least one State it is not so held.^ § 109. Appointment by Delegation. — Although it is gener- ally true that no one may be appointed executor unless he is named as such in the will, yet there is a class of cases in which letters testamentary may be issued to one who is not strictly named as executor in the will. This mode of grant is admitted when the will gives to certain persons named in the will the power to select an executor, and the person applying for such appointment is the one selected by those persons. Thus, it has been held proper for a testa- tor to appoint as his executor any person whom the legatees under the will or any other person whom he names should select.^ Accordingly, in New York, where the testator appointed his wife executrix, and requested " that such male friend as she may desire shall be appointed with her as executor," it was held to be a good appointment of the co-executor, and that letters testamentary could be issued to him, although the statute in that State relating to the jurisdiction of th§ probate court provided that letters should be issued only to those named in the will as executors.* So it has been held in Delaware that where a testator, resident in Philadelphia at the time of making the will, but a resident of Delaware at the time of his death, provided that if the person ap- 1 Godolph. Pt. 3, c. 3, § 5; Woods, Goods of, L. K. 1. P. & D. 556. 2 Hartnett v. Wandell, 60 N. Y. 346. 8 Cringan, Goods of, 1 Hagg. 543; Ryder, Goods of, 2 Sw. & Tr. 127; Allen, J. in Hartnett v. WandfiU, 60 N. Y. 346, 351, 352. « Hartnett v. Wandell, 60 N. Y. 346, 351, 353. WHO MAY CLAIM APPOINTMENT AS EXECUTOR. 71 pointed by him as executor should relinquish the trust, the orphans' court of Philadelphia might name a suitable person as executor, and that court in pursuance of that power named a person after the executor named in the will had resigned the ofiice, letters testamentary were properly issued to such appointee of the orphans' court, and not letters of administration.^ And it is not uncommon for a testator to appoint executors, and to provide that upon the death of one of them, the survivor or survivors may appoint another executor, who shall act with him or them.^ § 110. Substitutionary Appointments. — A testator may also make various substitutionary appointments of executors, naming one or more as his first choice, and if they cannot or will not act, then others in regular order .^ In such a case, the substitutionary executor cannot have probate until the prior executor has been cited to accept or refuse the ofiftce.* And if this prior executor once accepts, the right of the other is gone, since the condition on which the appointment is to vest has become impossible.^ § 111. Executor of Executor, Rule as to. — In all these cases the executor derives his power from the appointment in the will, and depends upon that appointment for his claim to the office, even though, as in some of the cases previously cited, he is not appointed by name, but by the choice of persons named by the testator. There is, how- ever, one case which existed at common law, and is the law in those States which have not abrogated the rule of the common law by statute, in which the right to an ex- ecutorship is devolved upon one without the choice or nomination of the testator, that is, where a sole executor dies 1 State V. Rogers, 1 Houst. (Del.) 569. 2 Deichman, Goods of, 3 Curt. 132; Jackson v. Paulet, 2 Robert. 344. 3 Swinb. Pt. 4, § 19, pi. 1; Godolph. Pt. 2, c. 4, § 1. * Smith V. Crofts, 2 Cas. temp. Lee, 557, 6 Swinb. Pt. 4, § 19, pi. 10; Godolph. Pt. 2, o, 4, § 2. 72 LAW OP EXECUTORS AND ADMINISTRATORS. testate. Then the executor of his will becomes ex officio the executor of the first will as well.^ § 112. Reason of RvUe. — The explanation given for this apparent inconsistency is that the power of the executor is founded upon the special confidence and actual appointment of the deceased, and this confidence extends so far as to allow him to transmit the office to another in whom he has equal confidence. So long therefore as the chain of represen- tation is unbroken by any intestacy, the ultimate executor is the executor of every preceding testator.^ But even at common law, the first testator might name some one to be executor, on the death of the executor first named, and in such case the ordinary rule does not apply.^ § 113. Limits of Rule. — And the rule is limited by the further rule that if the first executor dies intestate, his administrator has no claim to act as executor of the first estate, since the administrator is merely an officer of the court appointed to administer the goods and estate of the executor, and has no privity with the estate of the testator^ and an administrator de bonis non should be appointed of the estate of the testator.* Also, if the first executor die without having proved the will of his testator his executor does not become executor of the first will.^ And it has been held that a grant of letters testamentary suspended by appeal 1 Com. Dig. Adm'r, G; Touchst. 464; Waukford v. Waukford, 1 Salk. 308; 2 Bl. Com. 506; Carrol ». Connet, 2 J. J. Marsh. (Ky.) 195, 209; Boanoke Navigation Co. v. Green, 3 Dev. (N. C.) L. 434; O'Driscoll v. Fishburne, 1 Nott & McC. 77; Worth v. McArden, 1 Dev. & Bat. (N. C.) . Eq. 199, 209; White School-House, Props, of, v. Post, 31 Conn. 259. See Appendix of Statutes. 2 2 Bl. Com. 506. ' Roanoke Navigation Co. v. Green, 3 Dev. (N. C.) 434. * Bro. Abr. Adm'r, pi. 7; Com. Dig. Adm'r, B. 6; 2 Bl. Com. 506. See Appendix of Statutes. ' Isted 0. Stanley, Dyer, 372, a; Hayron v. Wolfe, Cro. Jac. 614; Dray- ton, In re, 4 McCord, 46. WHO MAY CLAIM APPOINTMENT AS EXECUTOR. 73 is not such a complete assumption of the office of executor as will transmit it to the next executor.^ § 114. statutory abrogation in United States. — The fore- going rule that the executor of an executor is the executor of the first will has been abrogated in many of the United States by statute, which declare that an executor of an executor shall not as such administer upon the estate of the first testator, but that letters of administration on such estates with the will annexed shall be granted to the persons entitled thereto.^ § 115. Rule where Several Ezecutors. — Nor has this rule that an executor of an executor is executor of the first testa- tor ever been held to apply to cases where there are two or more executors. In such cases,, upon the death of one, the powers and liabilities survive to the others, and so until the last survivor, and upon his death testate, his executor may be executor as before stated of the original testator, unless the statutes otherwise provide, as is often the case ; ^ and if only one of two executors qualifies, and then dies intestate, and the other qualifies, the administrator of the first executor has no claim to be appointed to administer the first estate.* § 116. Agreement to renounce Ezecutorship. — It follows from the principle stated previously,^ that an executor cannot ' Drayton, In re, supra. 2 Mass. Pub. Sts. c. 129, § 10; Ala. Code, § 2348; Cal. Code, Civ. Proc. § 1353; Conn. L. 1885, c. 116, § 144; Del. Kev. Code, c. 89, § 10; 111. Rev. Sts. c. 3, § 37; Ind. Kev. Sts. § 2240; Iowa Rev. Code, § 2848; Ky. Gen. Sts. c. 39, art. 1, § 11 ; Me. Rev. Sts. c. 64, § 23; Prescott v. Moore, 64 Me. '422; s. c 62 Me. 447; Md. Code, art. 50, § 108; Mich. Annot. Sts. § 5845 ; N. H., Gen. Laws, c. 195, § 8; N. J. Rev., Tit. Exrs. & Admrs. § 2, p. 396; New York Code, Civ. Proc. § 2643; Ohio Rev. Sts. § 6018; Penn. Purd. Dig., Tit. Deced. Estates, § 15; R. I. Pub. Sts. c. 184, §§ 22, 23; S. C. Gen. Sts. § 1904; 2 Sneed (Tenn.), 650, 652; Tex. Rev Sts. art. 1871; Vt. Rev. Laws, § 2071; Va. Code, c. 126, § 8; West Va. Code, c. 85, § 8 ; and see Appendix of Statutes. ' Wentw. Off. Ex. 215, Smith, Goods of, 3 Curt. 31. 4 Grafton v. Beal, 1 Ga. 322. » Supra, § 75. 74 - LAW OP EXECUTORS AND ADMINISTEATOES. assign the office to another, since no one to whom a power relating to property is given by another on account of a special and personal confidence, can delegate that power to another.i And on grounds of public policy it has been held in New Jersey that an agreement to renounce the executor- ship, although founded upon a valuable consideration, is ille- gal and void.2 1 Bedell v. Constable, Vaugh. 182. 2 EUicott V. Chamberlain, 38 N. J. Eq. 604. See infra, §§ 193, 200. EIGHT OF HUSBAND AND WIFE TO ADMINISTER. 75 CHAPTEE V. EIGHT OP HUSBAND AND WIFE TO ADMINISTER. ( 117. Early Statutes as to Administra- tion. 118. Leading Principle as to Eight to Administer. 119. Limited by Statute. 120. Husband's Right to administer his Wife's Estate. 121. When shared with Next of Kin. 122. Right founded on Right to her Property. 123. Depends on existence of Mar- riage. 124. Effect of Divorce. 125. Effect of Misconduct of Husband. 126. Disqualification of Husband. 127. Effect of Disposition of Wife's Property. 128. Effect of Antenuptial Settlement. 129. Effect of statutes as to Married Women's Separate Estate. § 130. Eight as between Representatives of Husband and Wife. 131. Same subject. 132. Presumption as to Survival. 133. Widow's Right to administer her Husband's Estate. 134. Strict Right in Widow and Next of Kin. 135. Modification of Rule. 136. Widow's Eight to Administer alone. 137. Effect of Rule. 138. When Widow loses her Right. 139. When Disqualified. 140. Disqualification for the Right. 141. Loss of Right, with Loss of Right to Property. 1 42. Eight depends on Valid Marriage. 143. Effect of Dissolution of Marriage. 144. Proof of Marriage. § 117. Early Statutes as to Administration. — The earliest statute which affected the right of administration provided that, in cases of intestacy, the ordinaries " shall depute to the next and most lawful friends " of the deceased person, intes- tate, to administer his goods.^ And by a later statute it was provided that in case any person died intestate, or that the executor named in a will refused to prove it, the ordinary ^' shall grant administration to the widow of the deceased, or to his next of kin, or to both, as by the discretion of the or- dinary shall be thought good," and further that when several are next of kin in equal degrees, the ordinary may choose one or more as he sees fit.^ By another statute, the husband was 1 31 Ed. ni. St. 1, c. 11. = 21 Han. VIII. o. 5, § 3. 76 LAW OP EXECUTORS AND ADMINISTRATORS. given the right to administer his deceased wife's estate,^ and these three statutes together define the extent and scope of the rule which governs the claim to administration, except as to creditors whose rights are founded on custom.^ As a matter of convenience, the right of the husband to administer his wife's estate will be first considered, then the right of the widow and ne^t of kin, and lastly the rights of creditors. And the reader is referred to the appendix of statutes in the end of the book, for a collection of the laws of the various States on these points. § 118. Leading Fiiuciple as to Right to Administer. — It may be observed as a preliminary to the discussion of these rights, that the grant of administration had in its origin a close and intimate connexion with the descent of personal property, and the guiding principle of the probate courts has always been to grant letters of administration only to the person to whom the personal property of the deceased in- testate, or the greater part of it, descends.^ §119. Limited by Statute. — The effect of this principle is much limited in many of the United States, by statutes, which expressly provide for the devolution of the right to administration to certain definite persons; and in those States the courts generally, but not uniformly, follow the express pro- visions of the statute, as regards the next of kin, even though the result may be the granting administration to a person not entitled to distribution. As regards the rights of husband 1 29 Car. n. c. 3. =2 Bl. Com. 505. s Bailey, Goods of, 2 Sw. & Tr. 135; Pountney, Goods of, 4 Hagg. 289; Gill, Goods of, 1 Hagg. 342, per Sir T. NichoU; Ellmaker's Est., 4 Watts, 34, 88; Bieber's App., 11 Pa. St. 157 ; Hall v. Thayer, 105 Mass. 219, 224, per Chapman, C. J.; Sweezey v. Willis, 1 Bradf. Surr. 495; Ga. Code, § 2498; Leverett v. Dismukes, 10 Ga. 98; Thornton ». Win- ston, 4 Leigh (Va.), 152; Bray v. Dudgeon, 6 Munf. 132; Clay v. Jack- son, T. U. P. Charlton, 71, 73; Briscoe, Succession of, 2 La. An. 268; Andrews v. Potter, 5 Cal. 63; Cal. Code, Civ. Proc. §1365; Ward v. Thompson, 6 GiU & J. 349; Owens v. Bates, 9 Gill, 463. RIGHT OP HUSBAND AND WIFE TO ADMINISTER, 77 and wife, the decisions vary still more. These questions will be more specifically discussed in treating of these Tarious classes of claimants to the right. It has been held that where a surviving husband was not entitled to any share of his dead wife's estate, he had nevertheless a right to administration, but must distribute the estate to those entitled to it.^ And when a widow had released all her claims on her husband's estate, she was nevertheless held entitled to administer.^ And as to the next of kin, it has been held that if the statutes of a State mark out expressly the order in which various per- sons are entitled to administration, that order will be followed without regard to their right to the estate, and administration may be granted to one not entitled to distribution, although the statutes also name specifically the next of kin entitled to distribution .3 The subject will be taken up more specifically in connexion with the various persons entitled to administration ; although it may here be remarked that the effect of the principle re- ferred to is noticeable in cases of administration de bonis non and cum testamento annexo, in that it shifts the right to ad- minister from the next of kin to the residuary legatee, as will be seen hereafter ; * and also that the principle does not apply when a contest arises over an estate and a special administra- tor is to be appointed pendente lite. In such cases the court will not appoint any of the litigants, but will appoint some' disinterested and impartial person who will preserve the es- tate till the contest is settled.^ § 120. Husband's Right to administer his "Wife's Estate. — The origin of the right of the husband to administer upon his wife's estate is somewhat obscure. It has been thought to 1 Townsend v. Eadoliffe, 44 HI 446. But see infra, §§ 127-129. 2 Reed v. Howe, 13 Iowa, 50. But see infra, § 144. 8 Lathrop v. Smith, 24 N. Y. 418. See infra, §§ 147-149. * See infra, § 148. 6 EUmaker's Est., 4 Watts, 37. See infra, § 229. 78 LAW OP EXECUTORS AND ADMINISTRATORS. be derived from the statute of 31 Ed. III., on the ground that the husband was his wife's next and most lawful friend,^ while other authorities consider it a common-law right.^ Whatever may have been its origin, the exclusive right of the husband to administer his wife's estate is recognized in England and in many of the United States, as it existed at common law, and the court in such cases has no power to appoint any one else, either in preference to, or jointly with him as administrator.* § 121. "When shared with Next of Kin. — In a few of the United States, this rule of the common law is so far modified by statute that the husband's right is not exclusive, but he has only the same right as a widow has, that is, an equal right to be appointed with the next of kin, according to the dis- cretion of the judge of probate.* § 122. The Right founded on Right to her Property. — This right of the husband was intended to complete in him the right to his wife's personal property, which vested in him ab- solutely at common law, if he survived her. As to that prop- erty of hers which he already had in possession, of course no 1 Elliott V. Gurr, 2 Phill. 19. 2 Ctmi. Dig. Ad'mr, B. 6. Humphrey v. BuUen, 1 Atk. 459; Sand's Case, 3 Salk. 22; Weeks «. Jewitt, 45 N. H. 540, 541; Judge of Probate!). Chamberlain, 3 N. H. 129; Mass. Pub. Sts. 0. 130, § 1; R. I. Pub. Sts. c. 184, § 7; Weaver v. Chace, ^5 R. I. 356 ; Harvey, In re, 2 Redf. 214; New York Rev. Sts. Pt. II. c. 6, tit. II. §§ 27, 29, 30; McCosker v. Golden, 1 Bradf. 64; Dewey v. Goodenongh, 56 Barb. 54, 57; N. J. Rev. p. 785, § 148; Clark v. Clark, 6 Watts & S. 85; Altemus' Case, 1 Ashm. 49; Bright. Purd. Dig., Tit. Deced. Est. § 27; Pa. Dig. p. 512, § 29; Va. Code, c. 126, § 4; Fla. Laws, c. 2, § 5; Ga. Code, § 2494; Cal. Code, Civ. Proc. § 1365; Happiss v. Eskridge, 2 Ired. Eq. 54 ; Patterson v. High, 8 Ired. Eq. 52 ; Hillborn v. Hester, lb. 55; Col. Gen. Sts. § 3524; 111. Ann. Sts. c. 8, § 18; Ind. Rev. Sts. § 2227; Ky. Gen. Sts. c. 39, art. 11, § 3; Miss. Rev. Code, § 1993; Ala. Code, § 2350 ; Fairbanks v. Hill, 3 Lea (Tenn.), 732. See Appendix of Statutes. * Me. Rev. Sts. 0. 64, § 17; Conn. Laws, 1885, 0. 110, § 154; Del. Laws, c. 39, § 9; Ark. Dig. Sts. § 7; Goodrich v. Treat, 3 Col. 408. See Ap- pendix of Statutes. This was the case in Alabama (Randall v. Shrader, 17 Ala. 333), until changed by statute. See supra, § 120, note 3. EIGHT OF HUSBAND AND WIPE TO ADMINISTER. 79 administration was necessary, but in order to enable him to reduce her choses in action into possession after her death, it was necessary for him to obtain administration, and thus gain Complete possession of her property, for which he was respon- sible to no one exoept creditors.^ The necessity for his tak- ing administration depends therefore upon his not being able otherwise to reduce to possession her choses in action. Accordingly, in Maryland, where statute provides that if there are no descendants there is no necessity for the hus- band taking administration, but that his wife's choses in action devolve upon him, and no administration will ordinarily be granted to any one, but her representatives may in certain cases have administration after his death, if he does not reduce the choses in action into possession during his life.^ Even as to her separate estate, his life-interest in it is suffi- cient to prevent the grant of administration to her represen- tatives, unless he has released all rights to it.^ § 123. Depends on Existence of Marriage. — This right of the husband depends upon the existence of a marriage between him and the deceased at the time of her death ; and therefore, if the marriage supposed to exist between them is void for any cause, the supposed husband has no right of administra- tion. Thus if there is a prior existing marriage, or one of the parties is non compos or under the age of lawful marriage, the supposed husband has no right to administer.* But if the marriage was only voidable, and had not been avoided by proper proceedings before the death of the wife^ the husband may proceed to administer.^ It has been held in England that a man convicted of bigamy in marrying the intestate might nevertheless apply for administration, and 1 Barnes v. Underwood, 47 N. Y. 351. 2 Md. Rev. Code, art. 50, § 92; Hubbard v. Barons, 38 Md. 175, 8 Willis w. Jones, 42 Md. 4^2. * Browning v. Reane, 2 Phill. 68. 6 Elliott V. Gurr, 2 Phill. 19. 80 LAW OP EXECUTORS ANB ADMINISTRATORS. show that he was not guilty of that crime, although his conviction is pleaded and proved.^ § 124. Effect of Divorce. — If, however, the marriage has been dissolved, he loses his right; as, for instance, when a divorce has been granted dissolving the marriage for his adultery and desertion.^ But it seems that a divorce a mensa et thoro, for the adultery of the husband, does not bar his right to administer his wife's estate, since the marital relation still exists.^ Upon the general principle of what marriages are voidable and what void, and the effect of these upon the right to the administration, the discussion of the subject of the widow's right to administer will be found of value.* § 125. Effect of Misconduct of Husband. — No misconduct of the husband towards the wife bars his right to administer, even if it is of such a nature as to afford ground for a divorce, — such as desertion, cruel treatment, adultery, and the like, — unless a divorce a vinculo has been actually obtained and the marriage dissolved.^ In England, desertion has by statute an effect upon this right. Thus it is held that if a wife, deserted by her husband, obtains a protective order under the statute,® which provides that as to property acquired after the date of the order she is as if sole, and that it goes after her death as if her husband were then dead, the administration of such after-acquired property shall not go to her husband, but to her next of kin.' § 126. Disqualification of Husband. — The right of the hus- band to administer is probably subject to the same disabili- ties that affect the right to administration in general, such as insanity, infancy, and so on. It has been said that a con- 1 Wilkinson v. Gordon, 2 Add. 152. 2 Hay, Goods of, 35 L. J. P. M. & A. 13. 8 Clark V. Clark, 6 Watts & S. 86. * See infra, §§ 123, 142-144. ' Altemus' Case, 1 Ashm. 49; Coover's App., 52 Pa. St. 427. « 20 and 21 Vict. o. 85, §§ 21, 25. ' Worman, Goods of, 1 Sw. & Tr. 513. EIGHT OP HUSBAND AND WIPE TO ADMINISTER. 81 viction of felony probably would not bar the right of the husband in Pennsylvania.^ § 127. Effect of Cispositioii of Wife's Property. — As the principle upon which the husband's right to administer depends is that he is entitled to the property, it is held in England that if he loses his right to the property he also loses his right to administer. Thus when a wife leaves all her property to a third person the husband has no right to administer her estate.^ And so, in Massachusetts, the statute provides that the right belongs to the husband, unless the wife has made some testamentary or other disposition of her estate which renders the appointment of some other person necessary.* § 128. Effect of Antenuptial Settlement. — If therefore by antenuptial settlement the property of the wife is held by her as her separate property, and the husband has no interest in it even after her death, and it goes to her next of kin or others, he cannot at common law claim administration.* But an antenuptial settlement by which the wife merely holds her property separate during her life, does not have that effect, if the husband has an interest in the property after her deatli.^ § 129. Effect of statutes as to Married Women's Separate Estate. — So if the effect of the statutes allowing married women to hold their property separately is not wholly to deprive the husband of any interest in the wife's estate after her death, such statutes do not deprive him of the right to administer her estate.^ It has even been held that when the 1 Alfcemus' Case, 1 Ashtn. 49, 50. See supra, Chapter III. 2 Rex V. Bettesworth, 2 Stra. 1111. = Pub. Sts. e. 130, § 1. * Ward V. Thompson, 6 Gill & J. 349; Owen v. Bates, 9 Gill, 463; Saulnier's Est., 3 Whart. 442; Fowler v. Kell, 22 Miss. 68; Bray v. Dud- geon, 6 Munf. 132; Sheldon v. Wright, 1 Said. 497; Patterson v. High, 8 Ired. Eq. 52; Hilborn ». Hester, 8 lb. 55; Smith v. Smith, 1 Tex. 621. 6 Hart V. Soward, 12 B. Mon. 391. * Barnes v. Underwood, 47 N. Y. 351 ; McCosker v. Golden, 1 Bradf. 64; Fairbanks v. Hill, 3 Lea (Tenn,), 732; Hubbard v. Barcus, 38 Md. 175; Willis v. Jones, 42 Mdi. 422; Coover's App., 52 Pa. St. 427. 82 LAW OP EXECUTORS AND ADMINISTRATORS. husband has no interest in his wife's separate estate after her death, he yet may be entitled by positive statute to administer it, but must distribute to her next of kin ; ^ although, in accord- ance with the general principle already stated, that the grant follows the right to the estate, and in accordance with the decisions in regard to antenuptial settlements, it would seem that in such a case the husband should lose his right.^ § 130. Right as between Representatives of Husband and ■Wife. — If the husband dies before taking administration on her estate, the question arises whether the administration shall be granted to his representatives or hers. Blackstone says the right of administering his wife's estate belongs to the husband or his representatives.^ But the practice seems not to have been uniform in England, the ecclesiastical courts generally granting letters to the next of kin of the wife, so as to follow the statutes.* But as these next of kin had no beneficial interest in the wife's property, chancery held them trustees for the husband's representatives.^ § 131. Right as between Representatives of Husband and Wife. — In New York, the court after granting letters to the sisters of the wife revoked them, and granted administration to the executors of the husband.^ In this case, the court put its decision upon the ground that, as there were no descendants of the wife, the husband was entitled to all her personal prop- erty, and the sisters to none of it, and therefore administra- tion should go to the executors of the husband's will ; but in a pi-evious case, the husband's administrator was refused letters upon the wife's estate, there being no descendants, upon the ground that the right of the husband was an excep- tion to the general rule and personal to him.^ 1 Townsend v. Radcliffe, 44 HI. 446. 2 See supra, §§ 119-122. ' 2 Bl. Com. 504. * Reece v. Strafford, 1 Hagg. 347; Wellington v. Dolman, 1 Hagg. 344. Contra, Bacon v. Bryant, 11 Vin. Abr. 88, pi. 25. 6 Elliott B. Collier, 3 Atk. 526; Whitaker v. Whitaker, 6 Johns. 117. 6 Harvey, In re, 3 Redf. 214. ' O'Neil, In re, 2 Redf. 544. EIGHT OF HUSBAND AND WIPE TO ADMINISTER. 83 It seems to be the practice in New Hampshire to grant letters to the representatives of the husband.^ In any case, if the right is granted to the representatives of the husband, it can only be after their due appointment as such by the pro- bate court, as until then they have no claim upon the admin- istration of the wife's estate.^ In cases where the intestacy of the wife only arises after the death of the husband, and in regard to property in which he has no interest, his representatives have no right to ad- minister the wife's estate, — for example, when a legacy given by the wife to take effect after her husband's death has lapsed.^ § 132. Presumption as to Survival. — Whenever the repre- sentatives of the husband claim to administer the estate of the wife, it lies upon them to show that the husband survived the wife, and if the husband and wife both perished by the same calamity there is no presumption that either survived the other, but the case must be made out upon proof. If this fails, the case of the representatives of the husband fails, ' and administration will be granted to the next of kin of the wife.* ■ The question how far this right to administer may be delegated by the husband to another will be considered later under the subject of the riglit . of nomination.^ § 133. "Widow's Riglit to Administer. — If the deceased was a married man, the administration in England is, as has been said, to be granted to the widow or next of kin, or both.® And this rule is followed in many of the United States, the 1 Weeks v. Jewett, 45 N. H. 540; Judge of Probate v. Chamberlain, 3 N. H. 129. 2 Crause, Goods of, 1 Sw. & Tr. 146; Atty.-Gen. v. Partington, 3 H. & C. 193, 206. » Kearney v. St. Paul Miss. Soc, 10 Abb. N. C. 278. * Selwyn, Goods of, 3 Hagg. 784; Phene's Trusts, L. R. 5 Ch. App. 139. See Underwood v. Wing, 4 De G. M. & G. 9, 633. 6 See infra, § 190. « 21 Hen. VIII. c. 5, § 3. 84 LAW OP EXKCUTORS AND ADMINISTEAT0R8. widow and next of kin being entitled to a preference OTer all others, unless they renounce or are incompetent.^ § 134. strict Right in ^Vidow and Next of Kin. — Under this rule the court cannot, unless authorized by statute, or unless the right of nomination is recognized, appoint any one to act with the widow, except one or more of the next of kin, and if the next of kin are incompetent, as in case of infancy, or renounce, the widow is entitled to sole administration.^ And if the widow renounces, none can be appointed but one or more of the next of kin if competent and willing.^ § 135. Modification of Rule. — Slight modifications of this rule exist in some States. For instance, in Maine, a daugh- ter's husband is expressly included in the next of kin.* In Ohio, the principal rule is modified by the provision that if the deceased was a non-resident, on application of a creditor ad- ministration shall be granted to him or to some other person.^ In Delaware, the rule is to grant administration to one or more of the persons entitled to the residue of the personal estate.® In Connecticut, the general rule was formerly fol- lowed, provided no objection was made by a creditor or heir, or the intestate was a non-resident of the State, in which case the judge might appoint whomsoever he saw fit.^ In New Hampshire, the rule is expressed in the alternative, " to the 1 Mass. Pub. Sta. c. 130, § 1 ; N. H. Gen. Laws, 1878, c. 195, § 2 ; Munsey V. Webster, 24 N. H. 126; Vt. Rev. Laws, 1880, § 2064; R. I. Pub. Sts. 1882, c. 184, § 4; N. J. Rev. 1877, Tit. Orphans' Court, § 28; Pa. Dig. 1883, p. 512, § 29; Gyger's Est., 65 Pa. St. 311; McCIellan's App., 16 Pa. St. 110; Bowersox's App., 100 Pa. St. 434; Mich. Gen. Sts. 1883, § 5849 ; Conn. Laws, 1885, c. 110, §154; Kans. Comp. Laws, c. 87, § 12; Ark. Dig. Sts. § 7. See Appendix of Statutes. 2 MeGooch ». McGoooh, 4 Mass. 348. a Cobb V. Newcomb, 19 Pick. 336. ^ Rev. Sts. 1883, c. 64, § 17. 6 Rev. Sts. 1880, § 6005, 6013. « Del. Laws, 1874, c. 89, § 9. ' Conn. Rev. Sts. 1875, c. 11, § 2; but see now Conn. Laws, 1885, c 110, § 154. EIGHT OF HUSBAND AND WIFE TO ADMINISTER. 85 widow or any of the next of kin."^ But this is construed to place the widow and next of kin in the same class.^ And in Maryland, the rule is that administration shall be granted first to the widow or any child, at the discretion of the court, and if no child the widow is preferred to the next of kin.3 § 136. ■Widow's Right to Administer Alone. — In a large class of States an important change is made in this rule, and tlie widow is in a class by herself, having preference to the next of kin and all other persons, except, in Illinois, to the public administrator, if the deceased was a non-resident.* And in these States the next of kin entitled to distribution come in the second place, subordinate to the widow only, and if she renounces or is incompetent their right is prior to any other.^ In Delaware, as has been already stated, admin- istration is granted to those entitled to the residue of the estate.® In a few States the whole matter is left in the dis- cretion of the judge of probate.'^ § 137. Effect of Rule. — As a matter of practice the two rules may often unite in the same i-esult, since even under the former rule the probate court in the exercise of its 1 N. H. Gen. Laws, 1878, c. 195, § 2. 2 Munsey v. Webster, 24 N. H. 126. 8 Md. Rev. Code, 1883, art. 50, § 78. * 2 N. Y. Rev. Sts. pt. II. e.. .6, tit. II. § 27 ; Laws, 1863, c. 362, § 3 ; Laws, 1867, c. 782, § 6 1 Cluett v. Mather, 43 Barb. 417; Cal. Code, Civ. Proo. 1885, § 1365; 111. Rev. Sts. 1883, c. 3, §§ 18, 19; Va. Code, 1873, c. 126, §4; Fla. Laws, 1881, c. 2, § 5 ; Ala. Code, § 2350 ; Col. Gen. Laws, § 3524 ; Ga. Code, § 2494; Ind. Rev. Sts. § 2227; Iowa Rev. Code, § 2354; Read v. Howe, 13 Iowa, 50; Ky. Gen. Sts. c. 39, art. 11, § 3; Miss. Rev. Code, § 1993; Pendleton ». Pendleton, 14 Miss. 448; Muirhead v. Muirhead, lb. 451; and see Appendix of Statutes. 6 See Statutes, supra. See also Ehlen v. Ehlen, 64 Md. 360; Gyger's Est., 65 Pa. St. 311. 6 Rev. Code, c. 89, §§ 8, 9. ' Wilson V. Frazier, 2 Humph. 30; Swan v. Swan, 3 Head, 163; Wright V. Wright, Mart. & Y. 43; Williamson v. Furbush, 31 Ark. 539; and see Appendix of Statutes. 86 LAW OP EXECUTORS AND ADMINISTRATORS. discretion will generally appoint the widow alone, other things being equal, preferring a sole to a joint administra- tion on account of its greater facility for transacting busi- ness.i Yet there is a distinction to be observed, for if the widow has no legal preference over the next of kin, the court may refuse to appoint her, if for any reason it thinks the in- terests of the estate demand the appointment of the next of kin, while, if the widow has a legal preference, she can only be deprived of it by some legal incompetency.^ § 138. When Widow loses her Sight. — In discussing there- fore what disqualifications will bar the widow's right to ad- minister, it will sometimes be necessary to discriminate between those States where she has the sole right, and those where she has only a joint right with the next of kin. In general the same principles apply as to the case of the sur- viving husband. If the widow has by any antenuptial agree- ment barred herself from all right in her husband's personal estate after his death, she has no right to administer.* But a post-nuptial agreement to such an effect is void, because a married woman cannot make a valid contract with her hus- band, and therefore such agreement does not bar her right.* Nor does an antenuptial contract which only partially depi'ives her of interest in her husband's estate.^ § 139. When Disqualified. — If the widow is non compos she is in all States disqualified for the . office, as has been seen above, in considering who is incompetent for the ofiice.^ But mere old age and illiteracy do not disqualify her if she has 1 Stretch v. Pynn, 1 Cas. temp. Lee, 30; Goddard v. Goddard, 3 Phill, 688. ^ See supra, § 134. ' Walker v. Carless, 2 Cas. temp. Lee, 560; Maurer v. Naill, 5 Md. 324. * Nusz V. Grove, 27 Md. 400 ; Read v. Howe, 13 Iowa, 50. i * Sieber's App., 1 Penny. 191. » See supra, §71 ; Williams, Goods of, 3 Hagg. 217; Dunn, Goods of, 5 Notes of Cas. 97. EIGHT OP HUSBAND AND WIPE TO ADMINISTER. 87 ordinary business capacity .^ In a case in Iowa the widow, although solely entitled, was refused the office, on account of non-residence, although such non-residence was not by statute an absolute bar to the right.^ If the court has a choice between the widow and next of kin, it will not appoint the widow when she has eloped from her husband or cohabited with another man,^ or deserted or has lived separate from her husband.* But if the widow is solely entitled to the office a separation does not bar her right, although by articles of separation she. agreed to renounce all interest in her husband's estate, since she is still the widow, and such an agreement is of no effect.^ A divorce a mensa et thoro for adultery on her part seems to forfeit the right in the discretion of the court,^ and an absolute divorce, for the fault of either party, deprives her of her right to administer.'^ § 140. Disqualification for the Right. — Even when the widow is not solely entitled, a second marriage is not con- sidered to affect her rights to the position, unless there are children of the first marriage who are willing to administer .^ Nor is the fact that she has no property of her own, if she is not insolvent ; that is, does not owe debts which she cannot pay.^ Nor the fact that she .cannot write and can only read German,, if she has good sense, a knowledge of the values of property, and of the practical business transactions of life-i" In those States where the competency of the applicant is left wholly to the discretion of the judge of probate, a 1 Wilkey's App., 108 Pa. St. 567. 2 O'Brien's Est., 63 Iowa, 623. 8 Fleming w. Pelham, 3 Hagg. 217; Conyers v. Kitson, 3 Hagg. 556. 4 Lambell ». Lambell, 3 Hagg. 568; Odiorne's App., 54 Pa. St. 175. See Chappell v. Chappell, 3 Curt. 429. « Nusz u. Grove, 27 Md. 400. * Pettifer v. James, Bunb. 16; Davies, Goods of, 2 Curt. 628. ' Ensign, In re, 103 N. Y. 728. 8 Webb V. Needham, 1 Add. 494. » Bowersox's App., 100 Pa. St. 434; Lynch ». Lively, 32 Ga. 575. 10 Bowersox's App., supra. \ 88 LAW OP EXECUTORS AND ADMINISTRATOKS. widow who is proved to be under the influence of a debtor of the estate will be denied the office if creditors' claims would be endangered by her appointment.* § 141. Loss of Right, with Loss of Right to Propert7. — If the widow is not entitled to any of the estate, as for instance, if she has taken the provision made for her by will, she forfeits at common law her right to the administi'ation, in accordance with the rule that the administration should follow the in- terest in the estate.^ In cases of application for administra- tion with the will annexed, which will be considered later, as between the widow and the residuary legatee, the legatee is generally preferred, except by statute in Maryland. The subject will be noticed later, in considering the special ad- ministration cum testamento annexe.^ § 142. Right depends on Valid Marriage. — In Case of the widow, as in case of the husband, her right to administer depends upon the legitimacy of her marriage, and if it is void, she cannot claim the right. Thus, where either party has been married and the marriage still subsists at the time of the second marriage, the second wife cannot be ad- ministratrix of her husband's estate. But if the marriage is not void, but merely voidable, and has not been avoided, the right of the widow remains.* Thus in New York a stat- ute provides that if any person, whose husband or wife ab- sents himself or herself for five successive years, without being known to such person to be alive, during that time marries during the lifetime of such husband or wife, the marriage is void only from the time its nullity is pronounced by the proper court. Accordingly in such a case it was held 1 Stearns v. Fiske, 18 Pick. 24. 2 Thornton v. Winston, 4 Leigh, 152. But see Statute of each State and supra, § 119. ' Georgetown College v. Browne, 34 Md. 456; Govane v. Govane, 1 Harr. & M. 346; Bradley v. Bradley, 3 Kedf. 513. See infra, §§ 205-208. * White V. Low, 1 Bedf. 376; Parker's App. 44 Pa. St. 309; Smith v. Smith, 1 Tex. 621. EIGHT OP HUSBAND AND WIPE TO ADMINISTER. 89 that a widow was entitled to administer upon her second husband's estate, although her first husband was alive when she married the second.^ § 143. Effect of Dissolution of Marriage. — But if the first marriage had been dissolved by proceedings equivalent in the country where they were had to dissolution of marriage, before the second marriage the second wife may have admin- istration, although there has been no formal divorce.^ If a divorce is granted, and then annulled after the death of the husband, the widow's right revives.^ To enter fully upon the question what marriages are valid would be foreign to the scope of this work, and refer- ence must be made to standard works, like Mr. Bishop's admirable treatise upon Marriage and Divorce. § 144. Proof of Marriage. — There must of course be proof that the applicant is the widow of the deceased. Marriage may be proved by evidence of cohabitation, declarations, and repute, even though admissions of the widow are put in evidence before the court to the effect that she was not mar- ried.* If the only evidence to this point is the presumption arising from cohabitation, the evidence must not be such as to make it doubtful whether the cohabitation was lawful or illicit.^ In a case in Pennsylvania the testimony of the widow to the marriage, corroborated by an entry in the family Bible by the deceased, and a cohabitation and reputation of marriage for twenty years, was held to be ample evidence of a marriage, though contradicted by admissions of the widow and husband that they were not married.® 1 White V. Low, 1 Redf . 376. » Ryan v. Ryan, 2 Phill. 332. » Boyd's App., 38 Pa. St. 246. * Renholm v. Pub. Admr., 2 Redf. 456. 6 Byrnes v. Dibble, 5 Redf. 383. 6 Bowersox's App., 100 Pa. St. 434. 90 LAW OP EXECUTORS AND ADMINISTRATORS. CHAPTER VI. RIGHTS OP NEXT OP KIN, CREDITORS, AND OTHERS TO ADMINISTER. § 145. Eight of Next of Kin to Ad- minister. 146. Effect of this Rule, as to Eight to Distribution. 147. As to Next of Kin not entitled to Distribution. 148. Administration cum testamento annexe. 149. Regulated by Statute. 150. Eight decided at Time of Appli- cation. 151. Eight Decided by Law of Place where Application is made. 152. Consanguinity, Eules of. 153. Collateral Kinsmen. 154. Same subject. 155. Degrees of Kindred. 156. By Civil Law. 157. Difference in Computation by Civil and Canon Law. 158. Eules of Computation in United States. 159. Order of Priority by Statute. 160. Kindred on Father's and Mother's Side. 161. Half and "Whole Blood. 162. Ascending and Descending Line. 163. Illegitimate Children. 164. Adopted Child. 165. Grant among a Class. 166. Sole Administration preferred to Joint. 167. Grant according to Choice of those Interested in Estate. 168. Court selects Person Interested in Good of Estate. i 169. Miscellaneous Decisions. 170. Male preferred to Female. 171. Exceptions to this Eule. 172. Eesident preferred to Non-resi- dent. 173. Unmarried Woman prefen'ed to Married. 174. Whole Blood preferred to Half Blood. 175. One most Interested in Estate preferred. 176. Preferences in several Cases. 177. Conflict of Kules of Preference. 178. Eight of Creditor to Administer. 179. Same subject. 180. Eight by Statute in United States. 181. Right of Creditors postponed to Next of Kin. 182. Postponement of Creditors to Next of Kin. 183. Principal Creditor preferred. 184. Citation to Next of Kin. 185. Who is a Creditor ? 186. Creditor's Appointment good against Next of Kin. 187. Eight of Public Administrator. 188. Eights after Creditors. 189. Consular Administration. 190. Eight of Nomination to Adminis- tration. 191. Eight of Nomination. 192. No Right to Nominate where no Eight to Administer. 193. Sale of Eight to Administer. § 145. Right of Next of Kin to Administer. — It has already been seen that, after or equally with the surviving husband BIGHTS OP NEXT OP KIN, ETC., TO ADMINISTER. 91 or wife the next of kin are entitled to administration, and that their rights are prior to those of creditors, strangers, or public administrators.^ To the next of kin, more especially perhaps than to either of the preceding claimants, does the principle before noticed apply, that the right to the adminis- tration should follow the interest in the property ; and this rule is recognized in all the States in determining among different kindred who may be administrators.^ § 146. Effect of this Rule as to Right to Distribution. — But this principle when enacted in a statute has caused some per- plexity ; for example, when it is enacted totidem verbis that the administration shall go to the next of kin entitled to dis- tribution, since cases have arisen in which the next of kin entitled to distribution is incompetent or has renounced, and application is made by the next in order. The public ad- ministrator in such cases has claimed that the applicant, not being entitled to distribution, is not entitled to administra- tion, and therefore that letters should not issue to him but to the public administrator ; but it is settled in New York, and probably would be so held elsewhere, that the applicant being a relative is entitled in preference to the public administra- tor, although not entitled to distribution.* The effect of this pi-inciple has been admitted so far as to deprive the next of kin of the right to administration, if he has by agreement released all interest in the estate.* § 147. As to Next of Kin not entitled to Distribution. — In 1 Supra, §§ 121, 134, ei seq. 2 Lathrop v. Smith, 24 N. Y. 417; Thompson's Est., 33 Barb. 334; Pub. Admr. v. Peters, 1 Bradf. 100; Sweezey v. Willis, 1 Bradf. 495; Churchill v. Prescott, 2 Bradf. 304; Butler v. Perrott, 1 Dam. 9; Haxall V. Lee, 2 Leigh, 267; Hayes v. Hayes, 75 Ind. 395; Munsey v. Webster, 24 N. H. 126; Byrd v. Gibson, 2 Miss. (1 How.) 568; Cotter v. Taylor, 4 B. Mon. 357; Halley ». Haney, 3 T. B. Men. 141; Hawkins v. Kobinson, Id. 143; Mullanphy v. County Court, 6 Mo. 563; Anderson ». Potter, 5 Cal. 63; Owings v. Bates, 9 Gill, 463; and see Appendix of Statutes. 3 Butler V, Perrott, 1 Dem. 9. See supra, §§ 118, 119. * Young V. Pierce, 1 Freem. 496. 92 LAW OP EXECUTOES AND ADMINISTRATORS. the United States generally, whenever the course of devolution of the right is directed by express enactment of statute, it has been held that the person entitled under the statutes is to have administration, even though he may not at the time of application be entitled to distribution. Thus, if there is one who is nearer of kin to the intestate than the applicant, but who is not competent to take administration for alienage, the applicant is entitled, although that other person is entitled to the personal property.^ § 148. Administration cum testamento annezo. — An excep- tion to this principle exists in England in regard to adminis- tration with the will annexed, where the practice has always been to grant such administration to the residuary legatee, if he desires it, in preference to the next of kin, in accordance with the principle above stated, since the administration is not regarded as falling within the statute regulating the right of administration,^ but as being governed by the principle that the administration should follow the beneficial interest in the estate.3 § 149. Hegulated by Statute. — In many of the United States the subject is regulated by statute. Thus in Massachu- setts it is provided that such administration shall be granted to the widow of the deceased or to his next of kin, or to such other person as would have been entitled thereto if the deceased had died intestate. The statutes relating to this point are more fully cited in considering this species of administration.* § 150. Right decided at Time of Application. — It has been held in England that the question whether the applicant for administration is next of kin is to be decided as of the time 1 Lathrop». Smith, 24 N. Y. 417; Sweezey v. WiUis, 1 Bradf. 495; Butler V. Perrott, 1 Dem. 9. 2 21 Hen. VIH. c. 5. 8 Peiree v. Perks, 1 Sid. 281; Thomas v. Butler, 1 Ventr. 217; Gill, Goods of, 1 Hagg. 341. * Pub. Sts. c. 130, § 6 ; Stebbins v. Lathrop, 4 Pick. 33. See infra, § 205. EIGHTS OP NEXT OP KIN, ETC., TO ADMINISTER. 93 when the intestate died, because at that time the right to the personal property is settled,^ and accordingly if the person so entitled dies before appointment, his next of kin have the right to appointment, and not the person next entitled as of kin to the original intestate.^ In the United States, however, it has been held that the right is to be decided at the time of application for letters of administration.^ § 151. Right decided by La-v? of Place where Application is made. — It is held in England that the right to administration should in all cases be settled by the law of the place where the deceased was domiciled, just as the right to the succession to personal property is settled according to the locus of the property.* But in the United States, where the right to ad- ministration is determined by definite statutes, it seems that the statutes of the State in which the application is made govern the right to the appointment.^ § 152. Consanguinity, Rules of. — In regard to the compu- tation of the kindred, the following extracts from Blackstone's Commentaries show the principles of the English law : — " Consanguinity or kindred is defined by writers on these subjects to be vinculum personarum ab eodem stipite descen- dentium, the connection or relation of persons descended from the same stock or common ancestor. This consanguinity is either lineal or collateral. " Lineal consanguinity is that which subsists between per- sons of whom one is descended in a direct line from the other, as between any man and his father, grandfather, great-grand- father, and so upwards in the direct ascending line, or between a man and his son, grandson, great-grandson, and so down- 1 Savage v. Blythe, 2 Hagg. Append. 150; Almes v. Almes, lb. 155; so in Georgia Code, § 2494. 2 2 Hagg. Append. 157. 8 Griffith V. Coleman, 61 Md. 250; Pub. Admr. v. Peters, 1 Bradf. 100. * Beggia, Groods of, 1 Add. 340 ; Da Cunha, Goods of, 1 Hagg. 237. 6 Pub. Admr. v. Hughes, 1 Bradf. 125; St. Jurjo v. Dunscomb, 2 Bradf. 105. 94 LAW OF EXECUTORS AND ADMINI8TEAT0ES. wards in the direct descending line. Every generation in this lineal direct consanguinity constitutes a different degree, reck- oning either upwards or downwards. A man's father is related to him in the first degree, and so likewise is his son ; his grandsire and grandson in the second degree ; his great- grandsire and great-grandson in the third. This is the onlj' natural way of reckoning the degrees in the direct line, and therefore universally obtains as well in the civil ^ and canon ^ as in the common law.* This lineal consanguinity falls strictly within the definition of vinculum per»onarum ah eodem stipite descendentium, since lineal relations are such as descend one from the other and both of course from the same common ancestor.* § 153. Collateral Kinsmen. — " Collateral kindred answers to the same description, collateral relations agreeing with lineal in this, that they descend from the same stock or ancestor, but differing in this, that they do not descend one from the other. Collateral kinsmen are such, then, as lineally spring from one and the same ancestor, who is the stirps or root, the stipes, trunk or common stock, from whence these relations are branched out. As if a man has two sons, who have each a numerous issue, both these issues are lineally descended from him as their common ancestor, and they are collateral kinsmen to each other, because they are all descended from this common ancestor, and all have a portion of his blood in their veins, which denominates them eonsanguineos.^ § 154. Collateral Kinsmen. — "It is to be remembered that the very being of collateral consanguinity consists in this descent from one and the same common ancestor. Thus Titius and his brother are related ; why ? Because both are derived from one father. Titius and his first cousin are related ; why ? Because both descend from the same grand- 1 Pand. 38, 10, 10. 2 Decret. L. 4 tit. 14. 8 Co. Litt. 23; 2 Bl. Com. 202, 203. ♦ 2 Bl. Com. 203, 204. « 2 Bl. Com. 204," 205. EIGHTS OF NEXT OP KIN, ETC., TO ADMINISTER. 95 father, and his second cousin's claim to consanguinity is this, that they are both derived from one and the same great-grand- father. In short, as many ancestors as a man has, so many common stocks has he from which collateral kinsmen may be derived.^ § 155. Degrees of Kindred. — " The method of computing the degrees of kindred in the common law is that of the canon law, that is, to begin at the common ancestor and reckon downwards, and in whatever degree the two persons or the most remote of them is distant from the common ancestor, that is the degree in which they are related to each other. Thus A. and his brother are related in the first degree, for from the father to each of them is counted only one. A. and his nephew are related in the second degree, for the nephew is two degrees removed from the common ancestor, that is, his own grandfather, the father of A." ^ § 156. By Civil Law. — In many of the United States, the degrees of kindred are computed according to the method of the civil law.^ " This method is to count upwards from either of the persons related to the common stock, and then downwards again to the others, reckoning a degree for each person ascending and descending.* Thus A. and his brother are related in the second degree, for from A. to his father the common ancestor is one degree, and thence, descending, to the brother is another degree ; A. and his nephew are related in the third degree, for ascending from A. to his father is one degree and descending thence to his brother is a second degree and to the brother's son, a third degree." ^ So a grandfather is nearer of kin than an aunt, for it is two degrees to the grandfather, that is, one to the father and one to the grand- father, while to the aunt is one degree more, that is, from the grandfather to the aunt.* 1 2 Bl. Com. 205. ' 2 Bl. Com. 205. 8 See infra, § 158 < 2 Bl. Com. 205. 6 2 Bl. Com. 205. « Sweezey v. Willis, 1 Bradf. 498. 96 LAW OP EXECUTOKS AND ADMINISTRATORS. § 157. Difference in Computation betn^een Civil and Common Law. — " The difference in computation has been very pre- cisely expressed as follows : The civilians take the sum of the degrees in both lines to the common ancestor ; the canonists take only the number of degrees in the longest line.^ By the English practice in regard to the grant of administration, the next of kin stand as follows, First, childi'en and their lineal descendants to the remotest degree, then parents of the de- ceased,2 then brothers and sisters, then grandfathers and grandmothers, then uncles and aunts, or nephews and nieces, great-grandfathers and great-grandmothers, and lastly cousins." ^ § 158. Rules of Contputation in United: States, by Civil La-w. — In only a few of the United States are the next of kin com- puted according to the common or canon law.* In most of them, the degrees are computed according to the rules of the civil law, as stated above.^- Accordingly, when as in some States it is provided by statute that the right to administra- tion follows the order of consanguinity, it generally means, as regulated by the civil law as explained above,® although in Georgia such a direction seems to mean the rule of the canon or common law.'^ §159. Order of Priority by Statute. — In several of the States, the order of priority in the right of administration is 1 2 Bl. Com, 207; Christian's note (4). 2 Brown v. Hay, 1 Stew. & P. 102. 8 2 BI. Com. 505. 4 Md. Code, 1878, art. 48, § 17; H. C. Code, 1883, § 1281 (6); Ga. Code, 1882, § 2484. « Me. Rev. Sts. c. 75, § 2; "Vt. R. Laws, 1880, § 2231 ; Mass. Pub. Sts. 0. 125, § 2; Conn. Laws, 1885, c. 110, 200; Del. Rev. Code, 1884, c. 85, § 2; c. 5, § 1 ; Ala. Code, 1876, § 2255; 111. Rev. Sts. c. 39, § 1; Mich. Annot. Sts. § 5776 a ; Iowa Rev. Code, § 45; Wis. Rev. Sts. § 2272, Minn. Gen. Sts. c. 46, § 7; Miss. Code, § 1271; Cal. Code, 1876, §§ 6389-6393; New York, Sweezey v. Willis, 1 Bradf. 498. See Appendix of Statutes. 6 Fla. Laws, c. 2, § 5; Va. Code, p. 512, § 29. ' Code, § 2494. EIGHTS OP NEXT OP KIN, ETC., TO ADMINISTER. 9T expressly enacted in detail. Thus in New York the ftrder is, after the widow or husband, — children, father, mother, broth- ers, sisters, grandchildren, and other relatives of the deceased intestate who would be entitled to share in the distribution of the estate.^ In California the same order is prescribed as in New York, except that the father and mother are put on an equality .2 In Maryland the prescribed order, after the widow and children, is grandchildren, father, brothers and sisters, mother, other kindred.^ The effect of this express enumera- tion is important, as it overcomes the principle that the right to administer follows the estate, and requires the court to grant to those enumerated in the order of enumeration, unless they are incompetent.* § 160. Kindred on Father's and Mother's Side. — In addition to these rules, it may be said that, in ascertaining who are next of kin to the deceased in England and in many of the United States, no difference is made between the kindred on the father's side and those on the mother's, each being considered to stand on the same footing.^ But in Maryland preference is given to the kindred on the father's side.^ § 161. Half and Whole Blood. — Again, the practice in Eng- land and in many of the United States is to admit in the com- putation the kindred of the half blood as well as those of the whole, as being equally kindred of the deceased;^ but as between several of equal degree, as will be seen later, he who is of the whole blood is preferred, unless material objections » Rev. Sts. pt. II. c. 6, tit. II. § 27. " Code, Civ. Proo. § 1365. » Code, art. 50, §§ 79-82 ; and see Appendix of Statutes. * Lathrop v. Smith, 24 N. Y. 417; Churchill ». Prescott, 2 Bradf. 304. s Moor V. Barham, cited in Blackborough v. Davis, 1 P. Wms. 53. See the statutes, supra, §§ 161, 162, et seq. and passim; and Appendix of Stat- utes. 6 Kearney v. Turner, 28 Md. 408; Code, art. 50, § 85. See Appendix of Statutes. ' 2 Bl. Com. 505; Single's App., 59 Pa. St. 55; Md. Code, art. 50, § 84. See Appendix of Statutes. 7 98 LAW OP EXECUTORS , AND ADMINISTRATORS. are urged against him,^ whereas in other States it is enacted by statute that the whole is preferred to the half blood.^ § 162. Asoenfding and Deaoending Line. — Again, there is no such limitation upon the course of this right to administration as that it cannot follow the ascending line.^ And it need hardly be said that an elder child does not stand in a nearer degree of kindred than a younger one.* In Maryland it is enacted that there shall be no preference beyond the parents in the ascending line, and the grandchildren in the descending line.* § 163. Illegitimate Children. — A bastard has by the com- mon law no kindred except his descendants, and therefore he can claim a right to administer only upon their estates.^ As to the estates of his ancestors and collaterals he is simply in the position of a stranger.^ But this status is altered in many States by statute, so that an illegitimate child is the heir of his mother, and his issue may take by right of representation any estate which the bas- tard himself would have taken if living ; and if a bastard dies intestate and without issue, the estate descends to his mother, and if she is not living, to those who would have been entitled thereto, through inheritance through the mother, if he had been a legitimate child.^ In New York, where a similar stat- ute exists, it is held that the grant to a bastard of adminis^ tration of his mother's estate is in the discretion of the court,® but that there is no such relationship as would allow the le- 1 Mercer v. Moorland, 2 Cas. temp. Lee, 499; Stratton v. Linton, 31 L. J. P. M, & A. 48. 2 Cal. Codej § 1366; N. Y. Kev. Sts. pt. II. c. 6, tit. II. § 28. " Ratcliffe's Case, 3 Co. 40 a; Collingwood v. Pace, 1 Vent. 414. See Appendix of Statutes. * Warwick ». Greville, 1 Phill. 124. « Md. Code, art. 50, § 86. • Pub. Admr. «. Hughes, 1 Bradf. 125. ' Pico's Est., 56 Cal. 413. 8 Mass. Pub. Sts. c. 125, §§ 3, 4; Sts. 1882, c. 132. See Appendix of Statutes. 9 Ferrie v. Pub. Admr., 3 Bradf. 249. RIGHTS OP NEXT OP KIN, ETC., TO ADMINISTER. 99 gitimate children of the same mother to claim administration of the bastard's estate.^ § 164. Adopted Child. — An adopted child showing no claim to the estate is not entitled to administration.^ § 165. Grant among a Class. — It will be seen that the fore- going principles will enable the judge of probate, having the necessary data before him, to arrive at the solution of the problem, who are the next of kin to the deceased intestate ; but it will often result that several will be found to be equally near to the deceased, and the question then arises whether administration shall be granted to all, or if not to all, to which of them it shall be granted. In the solution of this question a wide latitude is allowed to the judge of probate, and he may select any he pleases, or grant to all.* But there are several principles of decision which arise so frequently and are of such general application as to deserve notice. § 166. Sole Administration preferred to Joint. — It maybe laid down as a leading principle that the court will ordinarily appoint only one administrator, as the existence of two or more renders proceedings too complicated,* and it certainly will not force a joint administration upon an estate if those interested in it are unwilling.^ § 167. Grant according to Choice of those Interested in the Estate. — Probably the most important rule guiding the dis- cretion of the judge in modern practice, when he has a discretion to choose among several who may be appointed administrators, is that he will choose the one whom those 1 Pub. Admr. v. Hughes, 1 Bradf. 125. 2 McCully's Est., 13 Phila. 296. See Appendix of Statutes. » 2 Bl. Com. 504; Taylor v. Delancey, 2 Cain. Gas. 143; Peters v. Pub. Admr., 1 Bradf. 200; Coope v. Lowerre, 1 Barb. Ch. 45; Brubaker's App., 98 Pa. St. 21; Levan's App., 112 Pa. St. 298; Ala. Code, § 2354; Cal. C. C. P. § 1367; Ga. Code, § 2494. See Appendix of Statutes. * Stanley v. Bemes, 1 Hagg. 222; Leggatt v. Leggatt, 1 Cd,s. temp. Lee, 348 ; Dampier v. Colson, 2 Phill. 55. s Brubaker's App., supra. 100 LAW OP EXECUTORS AND ADMINISTRATORS. interested in the estate, or most of them, wish to have ap- pointed, if no material objection exists to such appointment.^ And this rule is sometimes enjoined by statute.^ § 168. Court selects Person interested in Good of Estate. — Again, the court, in making a selection of an administrator from the next of kin, will appoint that one who by reason of his interest in the estate will be most likely to manage it to the best advantage, so as to secure the payment of the debts due by the estate as well as its careful management.* § 169. Miscellaneoua Decisions. — More particular instances of the exercise of this discretion are these, — that although the parents of the deceased are in the same degree as his chil- dren, yet the children are always preferred to the parents,* and so, brothers and sisters are preferred to grandfathers and grandmothers, although in the same degree.^ And in Mary- land the descending is preferred to the ascending line, among collaterals, e.g., a nephew to an uncle.^ § 170. Male preferred to Female. — Although, as has been already said, females are not excluded from administration, yet as among several of equal degree, other things being equal, the court will appoint a male rather than a female, and by statute this preference is in some States made positive and binding upon the court ; ^ but in New York it is held that 1 Coppin ri. Dillon, 4 Hagg. 376; "Warwick «. Greville, 1 Fhill. 125; Ellmaker's Est., 4 Watts, 34; Shomo's App., 57 Pa. St. 356. 2 Mandeville ». Mandeville, 35 Ga. 243 ; Ga. Code, § 2494. See Ap- pendix of Statutes. 8 Warwick v. Greville, supra ; Moore v. Moore, 1 Dev. 352. See Ap- pendix of Statutes. « 2 Bl. Com. 504. 5 Evelyn «. Evelyn, 3 Atk. 762 ; Winchelsea v. NorclifE, 2 Freem. 95. « Code, art 50, § 85. ' Chittenden v. Knight, 2 Cas. temp. Lee, 559; Single's App., 59 Pa. St. 55; Sarkie'a App., 2 Pa. St. 1.59; Cook v. Carr, 19 Md. 1; Md. Rev. Code, art. 50, § 83; N. Y. Rev. Sts. pt. II. c. 6, tit. II. § 28; Ala. Code, § 2352; Cal. Code, Civ. Proc. § 1366; Ind. Rev. Sts. § 2229. 101 an unmarried daughter is to be preferred to the guardian of a minor child.^ § 171. Exceptions to this Rule. — But unless the statutes expressly give such a preference, if the majority of those in- terested prefer the appointment of a female, she will be ap- pointed in preference to a male of equal degree,^ or if she applies before a male.^ So a female resident in the State has been preferred to a non-resident minor male ; * but contra under the present New York statute.^ § 172. Resident preferred to Non-resident. — Generally a Tesident of the State is preferred to a non-resident, even when a non-resident is competent, though if the interests of the resident are adverse to the proper settlement of the estate the non-resident may be appointed, except in those States in which non-residents are incompetent.® § 173. XTnmarried Woman preferred to Married Woman. — As between a married and unmarried woman of equal degree, the unmarried woman has generally been preferred by the probate court in the absence of countervailing circumstances, and this preference is also made positive by statute, in some States.^ An elder son will generally be preferred to a younger son, merely as a matter of discretion in the court,* and the same is true as between an older and younger daughter.^ § 174. Whole Blood preferred to Half Blood. — As has al- ready been said, the half blood is admitted with the whole in 1 Cottle V. Van der Heyden, 56 Barb. 622. 2 Iresdale v. Ford, 1 Sw. & Tr. 305. a Cordeaux v. Trasler, 34 L. J. n. s. P. M. k A. 127. * Wickwire v. Chapman, 15 Barb. 302. 5 Lussen v. Timmerman, 4 Dem. 250. 8 Pickering v. Pendexter, 46 N. H. 69. Cf. Drew's App., 58 N. H. 319. ' Curser's App., 89 N. Y. 401; N. Y. Rev. Sts. pt. II. c. 6, tit. II. § 28; Ind. Rev. Sts. § 2229; Md. Code, art. 93, § 27; Griffith v. Coleman, 61 Md. 252 ; Smith v. Young, 5 Gill, 197. See Appendix of Statutes. 8 Warwick v. Greville, 1 Phill. 125: Shomo's App., 57 Pa. St. 356. » Coppin V. Dillon, 4 Hagg.' 376; Brubaker's App., 98 Pa. St. 21. 102 LAW OP EXECUTORS AND ADMINISTRATORS. computing who is next of kin ; but if among several of equal degree some are of the half blood and some of the whole the latter will be preferred,^ and by statute this is sometimes com- manded, thus taking away the discretion of the court in the matter .2 But in a case in PennsylYania,^ a brother of the half blood was preferred to sisters of the whole blood, the court holding that in that State no distinction exists between the whole and the half blood. § 175. One most Interested in Estate preferred. — Another principle which may guide the judge in the exercise of his discretion, is, to select that one of the next of kin whose in- terest in the estate is the largest, if there is any difference. This is a corollary to the proposition that the administration should follow the estate.* The court will, other things beiijg equal,^ appoint a man accustomed to business rather than one not accustomed, and one who is in good business standing rather than an insolvent.^ § 176. Preferences in Several Cases. — If one of the next of kin is also a creditor of the estate, the fact is adverse to his being appointed administrator,'^ or if, he holds a large part of the estate, claiming it adversely ; ^ and a next of kin who has had his share of the estate by advancement, and claims to hold part of it adversely to the intestate, will not be pre- fen-ed to any one of the next of kin.^ A local preference exists in Georgia, that a person entitled to administration and offer- ing security shall be preferred to one having a prior right 1 Mercer v. Moorland, 2 Cas. temp. Lee, 499 ; Cal. Code, Civ. Proc. § 1366 ; N. Y. R^v. Sts. pt. II. o. 6, tit. II. § 28; Md. Code, art. 50, § 84. 2 Ala. Code, § 2352; Cal. Code, Civ. Proc. § 1366; lud. Kev. Sts. § 2229. See Appendix of Statutes. » Single's App., 59 Pa. St. 55. * Horskins v. Morel, T. U. P. Charlton, 69. = Williams v. Wilkins, 2 Phill. 100. « Bell V. Timiswood, 2 Phill. 22; Compropst's App., 33 Pa. St. 587. ' Webb V. Needham, 1 Add. 494; Owings v. Bates, 9 Gill, 463. ? Bieber's App., 11 Pa. St. 157. 9 Moody V. Moody, 29 Ga. 519; Bieber's App., supra. EIGHTS OF NEXT OP KIN, ETC., TO ADMINISTEB. 103 but not offering security ,i and it is enacted in that State,' as a general rule for unspecified cases, that the person having the right to the estate should have the administration.^ § 177. Conflict of Bulea of Preference. — These rules are subject to modification by each other, and sometimes conflict among themselves. Thus one of the whole blood may be, foF good cause, selected to administer, rather than one of the half blood, although the majority of persons interested prefer the latter.3 When the court hag once exercised its discretion, and an administrator has been appointed, others in the same degree of kindred and preferable to the one already appointed, will not have any right to a similar appointment, though they might have been preferred if their claim had been put in be- fore the appointment was made.* § 178. Right of Creditors to administer. — Next to the rights of the next of kin to administration, come those of creditors. If none of the next of kin are willing or competent to take administration, a creditor of the intestate may take it, in order to secure the payment of his debt, which otherwise he would not be able to obtain. This right of the creditor only accrues after certain preliminaries, such as citation of the next of kin and their neglect to appear, or the lapse of a certain time, which will be discussed later. For the specific statutes the reader is referred to the appendix of statutes at the end of the book.^ It should also be said that in Massachusetts and some other States, the right of a public administrator is precedent to that of a creditor, when there is no husband or wife or next of kin in the State ; but this also will be discussed later, under the subject of Public Administration.® 1 Ga. Code, § 2498. = Ga. Code, § 2494, s Mercer v. Mooiland, 2 Cas. temp. Lee,. 499 ; Stratton o. Linton, 31 L. J. P. M. A. 48. * Toller, 98; Brubaker's App., 98 Pa. St. 21. « See infra, § 180. « See infrq, § 230. 104 LAW OP EXECUTORS AND ADMINISTRATORS. § 179. Right of Creditors to administer. — The origin of this right of creditors was in England, where, by custom, if none of the next of kin will take out administration, a creditor may do so.^ But this right is entirely subordinate to that of the next of kin, so that if, on application of the creditors and citation of the next of kin, any one of the next of kin wishes to take administration, he will be preferred to the creditor, allowing the creditor his costs if an undue delay has elapsed since the death of the intestate.^ § 180. Right by Statute in United States. — In the United States generally the custom has been recognized, and a statu- tory provision is made, for a creditor to take out administra- tion, if the next of kin are incompetent, or fail to do so within a certain time, or refuse to do so when cited into court for that purpose.* In Massachusetts the creditors (one or more) rank next to the next of kin, but if none of those having the prior right are in the Commonwealth, then the public administrator is pre- ferred to creditors.* In New York the public administrator of New York city takes precedence over creditors, who rank next after him ; in California this preference is given to all public administrators ; * and in Connecticut the right of a 1 2 Bl. Com. 505. 2 Cole V. Rea, 2 Phill. 428; Jones v. Beytagh, 3 Phill. 635. » Ala. Code, § 2350; 111. Rev. Sts. 1883, c. 3, § 18 (" to any creditor ") ; ■Ind. Rev. Sts. § 2227; Iowa Code, § 2354; Ga. Code, 1882, § 2494 (" a creditor "); Cal. Code, Civ. Proc. 1885, § 1365 (" the creditors "); Del. Laws, 1874, c. 89, § 9 (" one or more creditors ") ; Fla. Laws, c. 2, § 5; Ky. Gen. Sts. c. 39, art. 11, § 4; Md. Rev. Code, 1883, art. 90 (" the largest creditor ") ; Mich. Gen. Sts. 1883, § 5849 (« creditor or creditors ") ; Ohio Rev. Sts. § 6005 (" one or more ") ; Pa. Digest, p. 512, § 29; N. H. Gen. Laws, c. 195, §§ 2, 5 (" one of the creditors ") ; Va. Code, c. 126, § 4; Vt. Rev. Laws, § 2064 (" one or more "). See Appendix of Statutes. 4 Pub. Sts. 1882, c. 130, § 1. 6 Code, Civ. Proc. § 1365; N. Y. Rev. Sts. pt. 11. o. 6, tit. II. § 27, after thirty days' notice ; but relatives not notified or non-residents have three months to appear, after letters granted to the public administrator: Title VI, §§ 16-19, 32; Laws, 1882, §§ 227-237; and an application to issue . EIGHTS OP NEXT OF KIN, ETC., TO ADMINISTER. 105 creditor is to object to granting to any next of kin, and the court will then grant to any fit person.^ § 181. Right of Creditora postponed to Next of Kin. — This right of creditors is based upon the supposition that the next of kin do not take administration, and therefore in many States a statutory provision exists which compels a creditor to wait a certain time before he can make application. The specific provisions of each State will be found in the appendix of stat- utes. Thus a delay of thirty days is required in some States ;2 and of sixty days in others.^ In Iowa twenty days' delay is required,* and in Ohio a reasonable time, — and eighteen days has been held a reasonable time, the applicant residing in another county;^ while in a few, no delay is provided for by statute.® § 182t Postponement of Creditors to Next of Kin. — In Florida administration is granted, after refusal, incapacity, etc., of the next of kin, to a creditor or some other fit person, after six weeks' notice and citation.'^ In New Jersey provis- ion for a creditor is also made as to the estates of intestates resident within the State, after fifty days ; ^ but, in the case of non-resident intestates leaving property in the State, sixty days ' delay is necessary when a creditor applies, and when any other person applies, then notice of not less than thirty letters to a relative, made after three months from the date of the grant of letters to the public administrator, is too late. Tuohay v. Pub. Admr., 2 Dam. 412. 1 Conn. Laws, 1885, o. 110, § 154. 2 Kentucky, Cotter v. Taylor, 2 B. Mon. 357; Mass. Pub. Sts. c. 130, § 1; (accompanied by notification of parties interested), Arnold v. Sabin, 1 Cush. 525; Vt. Rev. Laws, § 2064; Mich. Gen. Sts. § 5849; N. H. Gen. Laws, c. 195, § 5; North Carolina, Hill v. Alspaugh, 72 N. C. 402; Va. Code, c. 126, § 4. See Appendix of Statutes. 8 Arkansas, Granthier v. Williams, 1 Ark. 270; El. Rev. Sts. c. 3, § 18. * Code, § 2356. ^ Todhunter v. Stewart, 39 Ohio St. 181. « Ala. Code, § 2350; Md. Rev. Code, art. 50, § 90; Del. Laws, 1874, c. 89, § 9; Cal. Code, Civ. Proc. § 1365; N. Y. Rev. Sts. pt. IL c. 6, tit. II. § 27; Ga. Code, § 2494. See Appendix of Statutes. ' Fla. Laws, c. 2, § 5. « Rev. p. 397, § 9. 106 LAW OP EZBCUTOES AND ADMINISTRATORS. days or more than six mouths is necessary ; and even in cases where the statute does not provide for notice to those first entitled, yet if a rule of court so provides, letters issued in disregard of the rule are invalid. ^ § 183. Principal Creditor preferred. — As between credit- ors, a preference is given to the principal creditor in a few States,^ and in New York ^ to the creditor first applying. § 184. Citation to Next of Kin. — It is to be noticed that, as the right of the creditor depends upon the unwillingness or incompetency of the next of kin, the general rule obtains that in any case where a creditor asserts his right to adminis- tration, he should give notice to the next of kin, and cite them into court, so that they may have an opportunity to as- sert their right. This citation need not be by personal serviccj but may be by the public notice ordered by the count, since, owing to the number of persons to be cited, personal citation would in many cases be impossible ; * and if such notice is not given when necessary, the lack of it invalidates the grant.^ If, however, the statute provides that the next of kin have only a limited time in which to apply, and no requirement is made for notice, as is the case sometimes, the creditors, upon failure of the next of kin to apply within that time, may pro- ceed without notice to them.^ § 185. 'Who is a Creditor. — It has been held that one whose claim against the estate is for the funeral expenses is a creditor of the estate. Thus it has been held that the undertaker is a creditor,'^ or a niece by marriage who pays 1 Gans V. Dabergott, 40 N. J. Eq. 184. 2 Ga. Code, § 2494 (" as a rule ") ; Md. Code, art. 50, § 90; Mich. Gen. Sts. § 5849; Mass. Pub. Sts. c. 130, § 1; Ohio Kev. Sts. § 6005; Vt. Kev. Laws, § 2064. 8 Rev. Sts. pt. II. c. 6, tit. II. § 27. * Arnold v. Sabin, 1 Cush. 525. See Appendix of Statutes. ^ Gans V. Dabergott, supra. ' Crossan v. McCrary, 37 Iowa, 684. ' Fowler's Case, 16 Jur. 894; Newcombe v. Beloe, 45 L. J. P. & M. 37. EIGHTS OF NEXT OP KIN, ETC., TO ADMINISTER. lOT the bills of the funeral.^ But one who was a creditor of the deceased by virtue of a cause of action at law which does not survive, as, for instance, a breach of promise of marriage, is not such a creditor as may take administration.^ § 186. Creditor's Appoiutment good against Next of Kin. — ~ The right of a creditor who has been properly appointed ad- ministrator is valid during his lifetime as against the next of kin, but at his death the next of kin may claim administration de bonis non.^ § 187. Right of Public Administrator. — The right of the public administrator to claim administration is in several States preferred to creditors, in the cases in which he can claim the right at all, that is, when there is no surviving hus- band or widow or next of kin in the State ; * but a preference is given to him in other States, only after next of kin and creditors.* The statutory provisions on this subject will be found in the appendix of statutes. In a few States creditors are not mentioned specifically at all, but after the next of kin administration may be granted to any fit person.^ § 188. Rights of the Creditors. — After the rights of credilr ors the matter of appointment is generally left to the discre- tion of the court. Thus it is provided by statute in many of the States that the court is at liberty, if creditors make no claim, to grant administration to any fit person. For a more detailed account of the rules as to appointment in such cases, 1 Lentz «. Pilert, 60 Md. 296. i* Smith V. Sherman, 4 Cush. 412; Stebbins ». Palmer, 1 Pick. 71. 8 Skeffington v. White, 1 Hagg. 702. 4 Mass. Pub. Sts. c. 130, § 1, cl. 5; Hyde's Est., 64 Gal. 228; McKln- non's Est., 64 Cal. 226; Cal. Code, Civ. Proc. § 1365; N. Y. Rev. Sts.pt. 11. c. 6, tit. ir. § 27; Goddard «. Abbott, 80 Hun, 401; 94 N. Y. 544. s III. Annot. Sts. c. 3, § 18; Rosenthal v. Prussing, 108 111. 128; Me. Rev. Sts. c. 64, § 25; Va. Code, e. 126, § 4 (after three months, to sherifE or other oflScer); Fla. Laws, c. 2, § 15 (after six months, to sheriff). « Conn. Laws, 1885, c 110, § 154; R. I. Pub. Sts. c. 184, § 5 (after thirty days) ; Me. Rev. Sts. c. 64, § 17 (after thirty days' notice, and pro- vided prior parties, are residents of State). 108 LAW OP EXECUTORS AND ADMINISTEATOBS. the reader is referred to the appendix of statutes at the end of the book ; but it may be said that this discretion is entrusted to the court in California, Connecticut, Delaware, Florida, Michigan, Massachusetts, New Hampshire, New York, Ohio, Pennsylvania, Rhode Island, South Carolina, Vermont, Virginia ;i and that the same discretion is given in Maryland, after notice to collaterals not more remote than brothers and sisters, and to lineals entitled to special preference resident in the State ;^ and in Illinois, but not until after fifteen days from the time creditors have a right to claim administration, unless proof is made of relinquishment of prior claims.^ In Georgia the public administrator (after thirty days' notice) ranks after creditors, unless the estate is settled by the par- ties interested without administration ; * and no other person not interested shall receive letters, except by appointment, nomination, or joinder by a person entitled.® § 189. Consular Administration. — In the United States a special administration in foreign parts is provided, namely, that in case the laws of the country permit, when any citizen of the United States, other than a seaman belonging to a vessel, dies in his consulate, leaving no legal represent- ative, partners in trade, or trustee by him appointed, it shall be the duty of the consul to take care of his effects, to take possession of them, sell them, and after payment of debts, remit to the treasury of the United States, unless they are ^ Cal. Code, Civ. Proc. § 1365, (or if a creditor's claim is objected to by another creditor) § 1367; Conn. Laws, 1885, c. 110, § 154; Del. Laws, c. 89, § 9; Fla. Laws, c. 2, § 5; Mich. Gen. Sts. § 5849; Breen v. Pang- born, 51 Mich. 29; Mass. Pub. Sts. c. 130, § 1; N. H. Gen. Laws, c. 195, § 2; Ohio Rev. Sts. § 6005 (if estate exceeds $100); Pa. Dig. p. 512, § 29; E. L Pub. Sts. c 184, §5; S. C, 2 Hill, 347; Vt. Rev. Laws, § 2064; Va. Code, c. 126, § 4; N. Y. Rev. Sts. pt. II. o. 6, tit. II. § 27. 2 Md. Code, art. 50, § 93; Hoffman v. Gold, 8 Gill & J. 79. 8 111. Rev. Sts. c. 3, §§ 18, 19. i Laws, 1882-83, pt. I. tit. 5, No. 380, §§ 6, 13, 14. 5 Code, § 2494. For the case of no one applying who can give the re- quired security, see §§ 2496-7; Laws, 1884-85, pt. I. tit. XL, No. 425. EIGHTS OP NEXT OP KIN, ETC., TO ADMINISTER. 109 previously claimed by the party legally entitled to them.^ It is also provided in England, that the estates of intes- tate foreigners may be settled by the consuls or consular agents of the country of which they were citizens, if there is no person present who is entitled to the grant of adminis- tration by law, in all. cases where similar powers are given to the English consuls in foreign countries.^ § 190. Right of Nomination to Administration. — Questions often arise, how far one who has the right to be appointed administrator may nominate some person to be appointed in his stead. In England, when a person residing out of the country is entitled to administration, administration or ad- ministration with the will annexed, as the case demands, may be granted to his attorney, acting under a power of attorney .^ But if the person entitled is resident in England and able to take the grant himself, the court will not decree it to his attorney for his use and benefit.* In the United States the right of nomination is somewhat more extended, as may be seen by reference to the appendix of statutes. Thus in California any person entitled may nom- inate or appoint some other person not entitled as adminis- trator;^ and the same power exists in Georgia.^ But this privilege belongs only to the widow and next of kin in other States,^ while in Massachusetts * it belongs to husband, widow, and next of kin, but only in case of their non-residence in the State.9 § 191. Right of iTomiuation. — In other States, if the person 1 U. S. Rev. Sts. § 1709, p. 305. 2 Sts. 24 & 25 Vict. c. 121, § 4; see U. S. Rev. Sts. §§ 1709, 1992, et seq. * Rule 32, P. R. (non-contentious business). * Burch, Goods of, 2 Sw. & Tr. 139, 6 Code, Civ. Proc. §§ 1365, 1378. « Code, § 2494; Halliday v. Du Rose, 59 Ga. 268. ' N. H, Gen. Laws, c. 195, § 2; Mich. Gen. Sts. § 5849; Vt. Rev. Laws, § 2064. 8 Pub. Sts. c. 131, §§ 2, 3. » Cobb v. Newcomb, 19 Pick. 337. 110 LAW OP EXECUTORS AND ADMINISTEATORS, entitled consent or request, one or more other persons may be joined with him in the administration.^ In Pennsylvania, New York, Maryland, South Carolina, New Jersey, and Mis- sissippi, no right of nomination exists.^ But when the person entitled to administration as next of kin, or husband, or widow, is resident out of the State, it is generally held that they have a right to appoint some resident of the State to act in the administration for them.^ § 192. No Appointment where no Right to Administer. — But if non-residence renders the appointor incompetent for the office the appointee is also incompetent, and the appointment is nugatory.* And, generally, if the person entitled to admin- istration is incompetent for any cause, his right of nomination fails.^ § 193. Sale of Right to Administer. — This right to admin- istration has been held in Maryland to be capable of sale, and if the person entitled to administer agrees to transfer the right to another for good consideration, the contract is binding and will be enforced.^ But the contrary is held in Pennsylvania.'' 1 Del. Laws, c. 89, § 9; Kentucky, Shropshire v. Withers, 5 J. J. Marsh. 210 ; N. Y. Rev. Sts. pt. II. c. 6, tit. II. § 34; William's Case, 1 Tuck. 8 (consent in writing is necessary); Md. Code, art. 50, § 72 (all those interested in all the personalty in the State must consent) ; Ten- nessee, Phillips V. Green, 4 Heisk. 350. == Guldin's Est., 81* Pa. Sts. 362; McClellan's App.,16 Pa. Sts. 110, 115; Root, Matter of, 5 N. Y. Leg. Obs. 449; Ward, Matter of, 6 lb. Ill; Georgetown College v. Brown, 34 Md. 450; McBeth v. Hunt, 2 Strobh. 335; Ex parte Ostendorff, 17 S. C. 22; Cresse, Matter of, 28 N. J. Eq. 236; Rea v. Englesing, Miss. Code, § 1993; Randall v. Shrader, 17 Ala. S33. ' Mass. Pub. Sts. c. 130, § 1 ; c. 131, § 2, 3; Smith v. Munroe, 1 Ired. L. 345. * Sutton V. Pub. Admr., 4 Dem. 83; Carr's Est. 25 Cal. 585; Beech's Est., 63 Cal. 458; Hyde's Est., 64 Cal. 228. ^ Sutton V. Pub. Admr., supra, and cases above; Kelly's Est., 57 Cal. 81. « Brown v. Stewart, 4 Md. Ch. 368; Bassett w. Muller, 8 Md. 548. ' Bowers v. Bowers, 26 Pa. Sts. 74. See infra, § 200. ACCEPTANCE OR EENUNCIATION. Ill CHAPTER VII. ACCEPTANCE OR RENUNCIATION. §194. Implied Renunciation. §198. Effect of Renunciation. 195. Express Renunciation. 199. Acceptance by Acts im, pais. 196. Renunciation m pais. 200. Sale of Right to Administration. 197. Withdrawal of Renunciatian. . § 194. impUed Renunciation. — It is evident from what has been said in the foregoing sections, that the offices both of executor and administrator may be either claimed and accepted by the persons entitled to them, or may be renounced by them.^ As to renunciation, it has been before seen, if a per- son entitled to either office neglects to claim the right after being duly cited into court for that purpose, he forfeits the right.^ This rule has been recognized for a long time in England,^ and is generally followed in the United States.* A distinction exists between the statutes in this respect, since in some States the mere lapse of time is enough to bar the prior right and to devolve it upon the next class, without citation or actual renunciation by the former j^ while in others, the lapse of time merely gives the next class of ap- plicants a right to claim administration, after citing those having a prior right into court, and compelling them either to take or refuse administration.® 1 Ayres v. Weed, 16 Conn. 291. s See supra, § 178. » Sts. 53 Geo. III. c. 127. * Arnold v. Sabin, 1 €ush. 525; Mass. Pub. Sts. c. 130, § 1; and see the statutes cited, supra, § 180. < ^ Edwards v. Bruee,. 8 Md. 387; Lawrence's App., 49 Conn. 411; and see statutes, supra, § 180, and Appendix of Statutes ; Todhunter v. Stewart; 39 Ohio St. 18 8 See supra, §§ 180, 181, for the statutes and decisions ; and see Ap- pendix of Statutes. 112 LAW OP EXECUTORS AND ADMINISTRATORS. § 195. Express Henunciation. — This implied renunciation, as it may be termed, is not, however, the only mode in which a renunciation may be made. The person who is named as executor may also expressly refuse to accept the ofiBce. It is held in England and iu some of the United States that such refusal, in order to bind the party making it, must be in writing filed in the probate court.^ It is not, however, neces- sary that this writing should be formal ; a letter or informal writing may be sufficient, if it indicates the refusal plainly, or if it expressly requests the appointment of another to the office.^ § 196. Henunciation in Pais. — In other States it is held that a refusal may be by act in pais, either verbal or written, and if one who is named as executor or has the right to ad- minister unequivocally refuses to act, and another thereupon proceeds to claim the office, the refusal binds the party making it.^ And so, if he neglects for a long time to take any steps towards claiming the office.* And this is true, although by statute a formal renunciation by writing filed in the probate court is provided for.^ It has been held that the filing a caveat against the probate of a will does not preclude the party filing it, being named executor, from accepting the trust.® An executor may re- nounce the office even after he has taken the oath of office, if 1 Wentw. Off. Ex. 88; Long v. Symes, 3 Hagg. 776; Miller v. Meetch, 8 Pa. St. 417; Commonwealth v. Mateer, 16 Serg. & R. 416; Newton v. Cocke, 10 Ark. 169 ; Muirhead ». Muirhead, 6 Sm. & M. 451 ; Stebbins ». Lathrop, 4 Pick. 33, 44. 2 Broker v. Charter, Cro. Eliz. 92; Miller v. Meetch, supra; Common- wealth V. Mateer, supra ; Carpenter v. Jones, 44 Md. 625; Stocksdale «. Conaway, 14 Md. 99 ; Kirtlan's Est., 16 Cal. 162. » Pollard V. Mohler, 55 Md. 284; Ayres v. Weed, 16 Conn. 296; Solomon V. Wixon, 27 Conn. 520; Keane's Est., 56 Cal. 407; Thornton v. Winston, 4 Leigh, Va. 152. * Lawrence's App., 49 Conn. 411. ' Carpenter v. Jones, 44 Md. 625 ; Stocksdale v. Conaway, supra. » Maxwell, In re, 2 Green, Ch. 611. ACCEPTANCE OR RENUNCIATION. 113 he has not intermeddled in the administration of the estate ; ^ but not after propounding the will for probate, being ap- pointed, and giving bond.^ § 197. Withdrawal of Renunciation. — The decisions are nOt uniform upon the question whether a renunciation may be withdrawn. In England, and in some of the States, it is held that an executor may withdraw his renunciation at any time before letters of administration de bonis non have been granted.^ And it is held in New York that an administrator may do the same ; * while in Maryland it is held that after a renuncia- tion of the right to administration is finally made, it cannot be retracted, even if it was made under a mistake as to its legal effect, but if made under a mistake of fact, as where the person signing a written renunciation was not aware what it was, the renunciation may be retracted.^ § 198. Effect of Renunciation. — The effect of renuncia- tion in the case of one appointed sole executor, is that the administration is vacant, and letters of administration with the will annexed will be issued to the person entitled to them, and the same is true if all of several executors renounce;® while, if there are other executors who accept the oifice, the effect is simply to deprive the one who so refuses of his right to appointment as executor.'^ In the case of administrations, if those entitled to appointment refuse or neglect to claim their right, the effect is to devolve the right upon those who are next entitled.^ 1 Miller V. Meetch, 8 Pa. St. 417. 2 Seara v. Dillingham, 12 Mass. 358. ' McDonnell v. Prendergast, 3 Hagg. 212 ; Robertson v. McGeoch, 11 Paige, Ch. 640; Davis ». Inscoe, 84 N. C. 401. * Casey v. Gardiner, 4 Bradf. 13. 6 <3arpenter v. Jones, 44 Md. 62.5; Thomas v. Knighton, 23 Md. 327. « Broker v. Charter, Cro. Eliz. 92; Wentw. OfE. Ex. 95; Hensloe's Case, 8 Co. 37 a ; Thornton v. Winston, 4 Leigh, 152. ' Ayres v. Weed, 16 Conn. 291. 8 See Statutes and Decisions, supra, §§ 178, 180, 181, 194. 8 114 LAW OP EXECUTORS AND ADMINISTRATORS. § 199. Acceptance by Acts in Pais. — On the other hand, an executor may so act that he is deemed to have accepted his office before he is cited into court. If he has taken pos- session of the goods of the deceased, or begun to administer them, or has done other acts which show an intention to ac- cept, he is bound by those acts, and may be compelled to prove the will.i If an executor renounce, he does not deprive him- self of the right to be appointed administrator, if he is the person entitled to administration.^ And if he is appointed administrator, and acts as such, he may afterwards take the executorship.^ It may be remarked that, in general, either by express pro- vision of statute or by order or decision of the court, no one is held to have renounced his right either to be executor or administrator until he has been cited into court and has had an opportunity of claiming his right.* § 200. Sale of Right to Administration. — The question has arisen in several cases, whether a contract to renounce for a valuable consideration the office of executor or administra- tor, is a valid one. In Maryland, as we have said, it has been held that one who has such a right may sell it, and the con- tract is legal.^ But in most States it is held that such a contract is illegal, simply because it would introduce so much uncertainty as to who would finally administer the estate, and a testator would feel no confidence that the person whom he had named as executor in his will would finally be the one to dispose of his estate.^ Therefore the courts will leave the 1 Wickendon v. Thomas, 2 Brownl. 58; Hensloe's Case, 9 Co. 37 b; Van Home v. Fonda, 5 Johns. Ch. 388 ; Ambler v. Lindsay, L. R. 3 Ch. D. 198; Davis v. Inscoe, 84 N. C. 402. 2 Briscoe v. WicklifE, 6 Dana (Ky.), 157. » Taylor v. Tibbetta, 18 B. Men. (Ky.) 177. * Barber v. Converse, 1 Redf. 330; Pollard v. Mohler, 55 Md. 288. 6 Brown v. Stewart, 4 Md. Ch. 368; Bassett v. MuUer, 8 Md. 548. « Elliott V. Chamberlin, 38 N. J. Eq. 604 ; Bowers v. Bowers, 26 Pa. St. 74; Owings v. O wings, 1 Harr. & G. 484; Hargreaves v. Wood, 2 Sw. & Tr. 602. ACCEPTANCE OE BENUNCIATION. 115 parties in the condition in which they have put themselves. If the contract remains wholly executory, the courts will not enforce it ; if money has been paid, they will not assist in the recovery of it. A contract to pay one a sum of money for acting as admin- istrator is legal,^ and so is a contract to act as administrator without making any charge for services.^ 1 Clark V. Constantine, 3 Bush, 652. 2 McCaw V. Blewitt, 2 McCord Ch. 90; Bate v. Bate, 11 Bush, 639. 116 LAW OP EXECUTORS AND ADMINISTBATORS. CHAPTER VIII. SPECIAL ADMINISTRATION. § 201. Different kinds of Special Ad- ministration. 202. Administration with the Will Annexed. 203. When Executor fails to Qualify. 204. When Executor Dies, Resigns or is Removed. 205. Right to this Species of Admin- istration. 206. Right in the United States. 207. Appointment of Residuary Leg- atee. 208. Bond in such Administration. 209. Executor as Administrator cum Uslamento annexo. 210. Duties of such Office, and Termi- nation. 211. Administration de honis non administratis. 212. Executor of Executor. 213. Right to such Administration. 214. Same County as First Adminis- tration. 215. Citation before Appointment. 216. Must he Vacancy, and Assets re- maining Unadministered. 217. Necessity for such Administra- tion. 218. Administration during Minority. 219. To whom granted. 220. Termination of such Administra- tion. 221. Administration pendente lite. 222. Duties of such Administration. 223. Termination of such Administra- tion. 224. Power to Sue or Defend. 225. Revocation of such Administra- tion. § 226. When such Administration is proper. 227. Must be a Contest. 228. Receiver to administer Estate. 229. Indifferent Person as Adminis- trator pendente lite. 230. Public Administration. 231. Statute Provisions as to Public Administration. 232. Same subject. 233. Same subject. 234. Administration of Undevised Es- tate. 235. Administrator ad litem. 236. No Administration necessary, when. 237. Administration waived by Agree- ment. 238. Executor de son tort. 239. Definition of. 240. How far recognized in United States. 241. Liability of such Executor to one regularly Appointed. 242. What Acts do not constitute this Liability. 243. As to Real Estate. 244. Intermeddling with Property not belonging to the Estate. 245. Effect of Appointment of regular Executor. 246. Purchaser from Executor de son tort. 247. One claiming Title, not Executor de son tort. , 248. Wrongful Acts cured by subse- quent Appointment. 249. Facts for Jury. § 201. Different Kinds of Special Administration. — There are several different kinds of special administration, which SPECIAL ADMINISTRATION. 117 remain to be considered before the duties of general adminis- tration are examined in detail. These special administra- tions are the administration with the will annexed (cum testa- mento annexo), the administration of the goods not already administered {de bonis non administratis), the administration during minority (durante minor e aetate), the administration during absence (durante absentia'), and some other forms of limited administration ; to which may be added the adminis- tration by the public administrator, and, for convenience, the executor de son tort. § 202. Administration with the Will Annexed. — If the testator makes an incomplete will, without naming any ex- ecutor, or if he names incapable persons, or if the executors named refuse to act or die before they receive letters testa- mentary, in any of these cases there must be appointed an administrator with the will annexed, whose duty is very little different from that of an executor .^ § 203. When the Executor fails to Qualify. — To the above common-law instances in which the appointment of an admin- istrator with the will annexed is necessary, there is in many States added by statute the instance where the executors neglect for a certain fixed time after the probate of the will to appear, and give the bond required by statute for the public performance of their duties, with this limitation, that the ex- ecutors named in the will may after this fixed time give bond, if there is not already an administrator with the will annexed appointed.^ 1 2 Bl. Com. 503; 1 Wms. Ex'rs, 461; Mass. Pub. Sts. o. 129, § 2; c. 130, § 6; Cal. Code Civ. Proc. § 1350; Conn. Laws, 1885, o. 110, § 141; Pa. Bright. Dig. p. 509; R. I. Pub. Sts. c. 184, §§ 2, 11; Vt. Kev. Laws, §§ 2064, 2069; Va. Code, c. 126, § 2; Ohio Rev. Sts. § 6000; N. H. Gen. Laws, c. 195, § 7; N. Y. Code, Civ. Proc. § 2643; Rev. Sts. in. pp. 2289, 2291; Del. Sts. § 1773; Ga. Code, §§2440, 2491; HI. Rev. Sts. c. 3, § 1 ; Me. Rev. Sts. c. 64, § 20; Md. Code, art. 50, § 51 ; Mich. Sts, § 5838; N. J. Rev. II. Orphans' Court, p. 758; Fla. Dig. c. 2, § 5. See Appendix of Statutes. 2 Mass. Pub. Sts. c. 130, § 6; Cal. Code Civ. Pfoo. § 1350; Conn. Laws, 118 LAW OP EXECUTOBS AND ADMINISTEATOBS. § 204. When Xizecutor Dies, Resigns, or Is Removed. There is still another form of this special administration, which occurs when one who has already proved the will and entered upon the duties of his executorship dies, resigns, or is removed before having fully administered the estate. In such a case the court appoints an administrator with the will annexed, who is also administrator de bonis non. This form of special administration will also be noticed under the administrator de bonis non. In any case the duties of an administrator eum testamento annexe vary but little from those of an executor, and the discussion of them may be postponed to that section of this work.i § 205. Right to this Species of Administration. — The right to claim this administration cum testamento annexo belongs in England generally to the residuary legatee, if there be one, because he has the greatest interest in the estate, and this rule excludes the next of kin upon the same principle.^ But if there is no residuary legatee or he refuses the office, the next of kin are entitled to such administration.^ § 206. Right in United States. — In the United States the right to claim this administration is generally regulated by statute. Thus in many of the States it is provided that such administration shall be granted to the person who would be entitled to administration if the deceased had died intestate.* In New Hampshire devisees rank in such case with creditors,^ while in Connecticut the grant is first to the husband, wife, or 1885, c. 110, § 141; R. I. Pub. Sts. c. 184, § 11 ; Vt. Rev. Laws, §2069; Va. Code, c. 126, § 2; Ohio Rev. Sts. § 6000; Me. Rev. Sts. o. 64, § 20; Md. Code, art. 50, § 51; Mich. Sts. § 5838. See Appendix of Statutes. 1' See infra. Chapter XIV. ; Smith v. Fellows, 131 Mass. 20. 2 Pierce v. Perks, 1 Sid. 281 ; Thomas v. Butler, 1 Ventr. 217. » Kooystra v. Buyskes, 3 Phill. 531 ; West b. Willby, 3 Phill. 381. * Mass. Pub. Sts. c. 130, § 6; Cal. Code Civ. Proc. § 1350; Vt. Rev. Laws, § 2064; Va. Code, c. 126, § 2; Ohio Rev. Sts. § 6000; HI. Rev. Sts. c. 3, § 1; Me. Rev. Sts. c. 64, § 20; Ga. Code, §§ 2440, 2491, 2494; Long I). Huggins, 72 Ga. 776. 6 Gen. Laws, o. 195, § 7. SPECIAL ADMINISTRATION. 119 next of kin, and second to one of the principal creditors or some other suitable person ; ^ but in case of a non-resident testator the appointment is in the discretion of the courts, who will naturally prefer resident creditors to non-resident heirs.^ In New Jersey a similar statutory provision exists ; but in this State the courts overrule the statute, and declare that the residuary legatee takes preference of the widow, next of kin, etc.^ § 207. Appointment of Residuary Legatee. — In other States, the rule of the English courts has a partial recognition, and it may be observed that the tendency of the courts to favor the appointment of the residuary legatee is very strong, even when express provisions of statute exist.* Thus in Pennsylvania a residuary legatee is given the preference.^ In Michigan the preference is first to any of the beneficiaries, and second to such person as would have been entitled in case of intestacy.^ In Maryland the right goes first to the widow, and next to the residuary legatee, males being preferred to females.^ In New York the right belongs, first, to one or more of the resid- uary legatees ; second, to one or more of the principal specific legatees (minors being represented by their guardians) ; third, to the husband or wife, or to one or more of the next of kin, or to one or more of the heirs or devisees ; fourth, to one or more of the creditors,^ and if several would be thus entitled, the one having the largest interest in the estate should be chosen, if not otherwise unsuitable.^ 1 Laws, 1885, c. 110, § 141. « Lawrence's App., 49 Conn. 411. 8.N. J. Rev. II. p. 758; Kirkpatrick's Est., 22 N. J. Eq. 463. * Bradley ». Bradley, 3 Redf. 512. 6 Penn. Dig. pp. 509, 513; EUmaker's Est., 4 Watts, 34. » Annot. Sts. § 5838; Laws, 1885, No. 144. ' Rev. Code, art. 50, § 94. 8 N. Y. Code, Civ. Proc. § 2643 ; Rev. Sts. IH. pp. 2289, 2291 ; Matter of Allen, 2 Dem. 203; Bradley v. Bradley, 3 Redf. 512; Re Ward, 1 Redf. 254; Cluett v. Mattice, 43 Barb. 417. ' Quintard v. Morgan, 4 Dem. 168. 120. LAW OF EXECUTORS AND ADMINISTRATORS. The right when it is given by statute is an absolute one, binding the judge, and not leaving it in his discretion to pass by the one having such right and appoint another.^ In Rhode Island the right is, first, to one or more devisees or legatees,;^ second, to one or more of the principal creditors, or to soma other suitable person.^ And in Delaware the only rule given by statute is that a legatee shall be preferred to a creditor.* The question as between the widow and the residuary legatee has been previously considered.* § 208. Bond in such Administration. — The Same provisions as to giving bond apply to the administrator with the will annexed, as are applicable to the case of executors. The form of the bond should properly be varied to meet the require- ments of the case ; ^ but it has been held that an ordinary administrator's bond is sufficient to hold the administrator cum testamento annexo and his sureties, since the condition is to administer the estate according to law, and the law provides that in case of testacy the estate shall be administered accord- ing to the will of the testator.* § 209. Executor as Administrator cum testamento annezo. — It is held in England that a person who is entitled to be ap- pointed executor cannot be appointed administrator cum testa- mento annexo ; ^ but in a case in Kentucky,^ it was held that a widow named as sole executrix might decline to act in that capacity, and yet be appointed administratrix with the will annexed. § 210. Duties of such Office, and Termination. — When an adniinistrator cum testamento annexo has been appointed, he 1 Blanct V. Morrison, 4 Dem. 297. ^ R. I. Pub. Sts. o. 184, § 2. » Del. Rev. Sts. § 1779. See Appendix of Statutes. * See supra, §§ 148, 149. « Ex p. Brown, 2 Bradf. (K Y.) 22. ' Judge of Probate v. Claggett, 36 N. H. 386 ; and see Hartzell v. Com. , 42 Pa. St. 453 ; but contra, Small v. Com., 8 Pa. St. 101. ' 1 Wms. Ex'rs, 470; Bullock's Goods, 1 Robert. 273 ; Richardson's Goods, 1 Sw. & Tr. 515; Morrison's Goods, 2 Sw. & Tr. 129. ' Briscoe v. WioklifEe, 6 Dana, 157. SPECIAL ADMINISTEATION. 121 is liable to the same provisions of law as other administrators ; except that he distributes the estate according to the will of the testator.^ As the office of administrator cum testamento annexo depends upon the validity of the will, the appointment of such administrator falls and becomes void with a decree of the probate court declaring the will void.^ § 211. Administration de bonis non administratis. — When a sole or surviving executor or administrator dies, resigns, or is removed before having fully administered the estate, the probate court appoints an administrator of the goods not al- ready administered, or de bonis non administratis? In Ohio * administration de bonis non is granted only in case there re- main goods to the value of $20 unadministered, or debts to the amount of $20. § 212. Executor of Execntor. — By the English law, if a sole or surviving executor died after proving the will, and died testate, the executorship regularly devolved upon his executor, if he had appointed one ; ^ and this rule obtains, unless changed by statute in the United States. But, as has been already seen, in many States it is provided by statute that an executor shall not act as such administrator upon the estate of the first tes- tator, but that an administrator de bonis non cum testamento annexo shall be appointed.^ If the executors named in the will die, renounce, or become incompetent before proving the 1 Ex p. Brown, 2 Bradf. (N. Y.) 22. " Smith V. Stoekbridge, 39 Md. 645. * 8 2 Bl. Com. 506; 1 Wms. Ex'rs, 471; Mass. Pub. Sts. c. 130, § 9; Cal. Code, Civ. Proc. § 1426 : Vt. Rev. Laws, § 2072 ; N. Y. Code, Civ. Proo. § 2693 ; HI. Rev. Sts. c. 3, §§ 37, 38, 40; Me. Rev. Sts. c. 64, § 21 ; Ga. Code, § 2490; Del. Sts. § 1780; Pa. Dig. pp. 510, 559, 561 ; N. H. Geti, Laws, c. 195, § 7; Mich. Ann. Sts. §§ 5843, 5857, 5860; Md. Code, art. 50, §§ 18, 107; R. L Pub. Sts. c. 184, §§ 22, 24, 26; Conn. Laws, 1885, c. 110, §§ 28, 31; Fla. Dig. c. 2, §§ 15, 83; N. J. Rev. L p. 396, § 2; IL p. 781. * Rev. Sts. §§ 6017, 6018. 6 2 Bl. Com. 506; 1 Wms. Ex'rs, 471; Beer's Goods, 2 Robert. 349. » See supra, § 114; Wetzler v. Fitch, 52 Cal. 638; Kilbourn v. See, 1 Dem. 353. 122 LAW OP EXECUTOES AND ADMINISTRATORS. will, the administration to be granted should be, as has been already seen, cum testamento annexo and not de bonis non.^ § 213. Right to such Administration. — As to the person who may claim the right to administration de bonis non, it has already been seen that when this administration is also cum testamento annexo, the grant is governed by statutes in most of the United States. When the administration de bonis non is caused by the death, resignation, or removal of an administrator, the right devolves as in cases of ordinary administration in many of the United States.^ But in the States named below no particular rules are prescribed, and letters are granted to some suitable person, in the discretion of the court.3 § 214. Same County as Previous Administration. — As ad- ministration de bonis non is but a continuance of the full ad- ministration or execution of the will, it is held that it should be granted in the same county, and by the same court, in which letters testamentary or of administration were origi- nally granted.* And it is also held that the limitations as to time within which original administration must be taken out, do not apply to this species of administration.^ § 215. Citation before Appointment. — In those States where the right to such administration is directed by statute, the 1 1 Wms. Ex'rs, 225, 471 ; Ysted v. Stanley, Dyer, 372 a ; Hayne v. Wolfe, Cro. Jac. 614; Re Drayton, 4 McCord, 46. a Cal. Code, Civ. Proc. §1426; Pico's Est., 56 Cal. 413; 111. Rev. Sts. c. 3, § 38; N. Y. Code, Civ. Proc. §2693; Del Sts. § 1780; N. H. Gen. Laws, c. 195, § 7; Md. Code, art. 50, § 107; Fla. Dig. c. 2, §§ 15, 83; Pa. Dig. pp. 509-10; and see Appendix of Statutes. » Ohio Rev. Sts. §6018; Me. Rev. Sts.c. 64, §21; Mass. Pub. Sts. c. 130, § 9 ; Russell v. Hoar, 3 Met. 187 : Vt. Rev. Laws, § 2072 ; Mich. Ann. Sts. §§ 5843, 5857, 5860; Conn. Laws, 1885, c. 110, §§ 28, 31; Ga. Code, § 2490; R. L Pub. Sts. o. 184, §§ 22, 24, 26; N. J. Rev. L p. 396, § 2; n. p. 781. * Eyster's Est. , 5 Watts, 132; Ex p. Lyons, 2 Leigh, 761. See supra, § 35, et seq. « Bancroft v. Andrews, 6 Cush. 493; Holmes, Pet., 33 Me. 577; Neal V. Charlton, 52 Md. 495. SPECIAL ADMINISTRATION. 123 same rules apply as to citation to those entitled to the right before granting to another, as obtain in regard to ordinary administration. The person having a preference is entitled to his day in court before being deprived of the right.^ And as between several equally entitled to such appointment, the practice of the court is the same as in regard to general let- ters of administration ; that is, to grant to the one who has the largest interest in the estate.^ § 216. Must be Vacancy, and Assets remaining Unadminis- tered. — The two preceding administrations depend upon two principal facts : first, that there is a vacancy in the office of executor or administrator, for if there is none the grant of such administration is void ; ^ and secondly, that there are assets remaining to be administered.* This second fact, how- ever, need not be conclusively established. If a prima facie case of assets is made out, it is sufficient to give the court power to appoint such an administrator, and leave it to the common-law courts to settle the title to the property.^ And even if all debts are paid, and nothing remains but distribution, still an administration de bonis non is necessary.^ And a claim which the former executor was prosecuting is an asset.'^ But the claim that if a certain judgment at common law is pronounced fraudulent and void by a court of common law, certain property will become assets, is not enough to support administration with the will annexed, because the probate court cannot undertake to settle rights of property, but must decide on a prima facie right.* And if all the estate 1 Thomas v. Knighton, 23 Md. 327; Fowler v. Walter, 1 Dem. 240. 2 Morgan's Est., 2 How. Pr. n. s. 194. 8 Haynes v. Meeks, 20 Cal. 288; Munroe v. People, 102 111. 406; Kambo V. Wyatt, 82 Ala. 383; Matthews v. Douthitt, 27 Ala. 273. * Gavin v. Carling, 55 Md. 536 ; Donaldson v. Kaborg, 26 Md. 312. 6 Scott V. Fox, 14 Md. 393; Pumpelly v. Tinkham, 23 Barb. 321. » Smith V. Dennis, 33 Md. 450. ' Hayward v. Place, 4 Dem. 487. 8 Fowler v. Walter, 1 Dem. 240. 124 LAW OP EXECUTORS AND ADMINISTRATORS. has been distributed, still, if there is a valid debt outstanding against the estate, this will in some States by statute authorize the granting of administration de bonis non, as the estate has not then been fully administered ; ^ but a legacy due from the estate is not such a debt.^ Even if the debts are barred by the statute of limitations, it is said that they are still enough to give jurisdiction to appoint an administrator de bonis non, since the statute of limitation does not extinguish the debt, but only bars an action at law to recover it.^ § 217. Necessity for such Administration, 'when. — If a power of sale of real estate is given by a will, and the application is made for the appointment of an administrator de bonis non cum testamento annexo, and all the personal estate has been, administered, this application will be refused ; for the admin- istrator de bonis non would not have authority to execute the trust conferred by the will upon the executor, of selling the. real estate, and therefore the grant of letters would be useless and nugatory.* Whether, if all the personal estate has been reduced to money, and nothing remains but to pay it over, there is any necessity of further administration, is differently decided by different courts. That there is not, since any distributee can sue direct for his share, is held in some States.^ While in others it is held that the administrator de bonis non may recover this money from his predecessor for distribution.^ § 218. Administration during Minority. — The preceding ad- ministrations are general in their nature, extending to the whole administration of the estate. There are, however, 1 Brattle v. Converse, 1 Root (Conn.), 174; Brattle v. Gustin, lb. 425; Bancroft o. Andrews, 6 Cush. 493. " Chapin v. Hastings, 2 Pick. 361. 8 Bancroft v. Andrews, 6 Cush. 493. I Wilcox V. Reese, 68 Md. 542. 6 Potts V. Smith, 3 Rawle, 361 ; Carrick v. Carrick, 23 N. J. Eq. 366. 8 Donaldson v. Raborg, 26 Md. 312; Judge of Probate v. Claggett, 36 N. H. 386. SPECIAL ADMINISTRATION. 125 other administrations, limited in time or quality. Of these, one is administration durante minore cetate, that is, where a person who has been named sole executor in the will is under the proper age for assuming that office, the court may appoint an administrator during his minority, unless there is another executor competent who accepts the trust. But if there are several executors, and one or more is of full age and accepts the trust, those of full age should have the grant ; and if, during the administration, a minor executor becomes of full age, he may be admitted to the office upon giving bond. The same rule also applies if the person to whom the right of adminis- tration belongs is a minor.^ § 219. To whom granted. — The person to whom such ad- .ministration shall be granted is in England held to be not under the Stat. 21 Hen. YIII., c. 6, before referred to, and the grant is in the discretion of the probate court.^ The practice in that country has been to grant it to the guardian of the infant, or the person who has a rjght to be such guardian^ although the practice has not been invariable.^ In the United States provision is generally made by statute ior the appointment of an administration durante minore cetate, and the statutes generally confer this right on the guardian of the infant.* In New York ^ the guardian of the •minor is entitled to letters in his stead. In California^ let- 1 1 Wms. Ex'rs, 479, 480; Mass. Pub. Sts. c. 129, §4; c. 130, § 7; Cal. Code, Civ. Proc. § 1354; Del. Sts. § 1776; N. H. Gen. Laws, o. l95, § 6 ; Md. Code, art. 50, § 104 (applying to persons under eighteen) ; K. I. a?ub. Sts. c. 184, § 3; Va. Code, o. 118,. § 24; Ohio Rev. Sts. § 6001; Vt. Kev. Laws, § 2070; Mich. Ann. Sts. § 5839; Me. Pub. Sts. c. 64, § 20; -Fla. Big. 0. 2, § 2; Ga. Code, § 2491; N. Y. Rev. Sts. III. p. 2289, § 35; Pa. Dig. Sts. p. 513; and see Appendix of Statutes. 2 1 Wms. Ex'rs, 481, 482; Weir's Goods, 2 Sw. & Tr. 451; West v. Willby, 3 Phill. 374. 3 1 Wms. Ex'rs, 481 ; Briers v. Goddard, Hob. 250 ; Thomas v. Butler, Ventr. 219. * See Statutes, supra, note 1. ^ Rev. Sts. III. p. 2291. 6 Code, Civ. Proc. § 1368. 126 LAW OP EXECUTORS AND ADMINISTEATOES. ters are granted in the discretion of the court to the guard- ian, or to any other person entitled to administration. In Georgia ^ the guardian of a minor interested in the estate has the right to take administration jointly with the person ap- pointed, or alone if no other person is selected. § 220. Termmation of such Administration. — This adminis- tration terminates upon the arrival of the minor at full age. If the appointment is during the minority of several, it termi- nates upon the arrival of any one at full age.^ § 221. Administration pendente lite. — Another form of lim- ited administration is that pendente lite. This administration is intended to provide for the temporary care of the estate while the question as to who is entitled to be executor or ad- ministrator is in the process of litigation. The various States have generally recognized this form of administration.^ An outline of the powers and duties of the office may be found in the statute of Massachusetts upon this subject, which is sub- stantially as follows : — When, by reason of delay in granting letters testamentary or of administration, or for any other cause, the judge of probate deems it expedient, he may, with or without notice, appoint a special administrator to collect and preserve the effects of the deceased.* § 222. Duties of such Administrator. — Such administrator shall give bond, and shall collect and preserve all the personal 1 Code, § 2497. 2 1 Wms. Ex'rs, 485, 486; Freke «. Thomas, 1 Ld. Kaym. 667; Touch. 490; Bao. Abr., Ex'rs, E. 3; Taylor v. Watts, 1 Freem. 425; and see the statutes cited above, § 218. » Vt. Rev. Laws, § 2081; Ohio Kev. Sts. § 6007; Va. Code, c. 118, §24; N. H. Gen. Laws, 0.195, § 18; Del. Sts. § 1782; 111. Rev. Sts. c. 3, § 11; N. Y. Code, Civ. Proo. § 2668; Walker v. Dougherty, 14 Ga. 653; Fla. Dig. c. 2, §§ 13, 14 ; Cal. Code, Civ. Proo. § 1411 ; Mich. Ann. Sts. § 5851; Md. Code, art. 50, §§ 97, 105; Me. Rev. Sts. c. 64, § 32; Sarle v. Court of Probate, 7 R. I. 270; Wisepenny's Est., 11 Phila. 20; and see Appendix of Statutes. 4 Mass. Pub. Sts. o. 130, §§ 10, 14. SPECIAL ADMINISTEATION. 127 estate for the person who may be appointed executor or ad- ministrator, and may commence and maintain suit, and sell when the court orders. If he is appointed while letters tes- tamentary are in dispute, he may be authorized to take charge of the real estate and to collect the rents, make necessary repairs, and do all other things needful for the preservation of the real estate and as a charge thereon. He may, on petition and order of probate court, give the widow or children an allowance as an advancement for their support, not exceeding ttie amount they would receive out of the income of the estate, whether the will was proved or not. If there is an appeal, the sum may still be paid, the payee giving a refunding bond.^ § 223. Termination of such Administration. — When letters testamentary or of administration are granted, his powers cease, and he must give up all the estate to the executor or administrator, and the executor or administrator may be ad- mitted to prosecute a suit begun by the special administrator. A special administrator is not generally liable to action by creditors of the deceased, and the statute of limitations runs only from the granting of full letters testamentary or of ad- ministration, as if the special administration had not been granted.^ It will be observed that the powers of this special admin- istrator are by the statute limited to the collection and pres- ervation of the estate, including the power to bring suit or defend, if necessary to attain the main object of the preserva- tion of the estate. § 224. Power to Sue or Defend. — Therefore, such an ad- ministrator generally has authority to carry on such suits as are necessary to collect and preserve the estate,' including a suit to redeem a mortgage.* § 225. Revocation of such Administration. — Such admin- 1 Pub. Sts. c. 130, §§ 10, 14. " Pub. Sts. c. 130, §§ 15-17. * See Sts., supra, § 24, and Ewing v. Moses, 50 Ga. 264. 4 Libby v. Cobb, 76 Me. 474. 128 LAW OP .EXECUTORS AND ADMINISTRATORS. tration is revoked by the granting of letters of administration ; but it is the better practice for the general administrator so appointed to give notice to creditors of his appointment, al- though such notice has been already given by the special administrator.^ So the end of the contest pending which the special administrator is appointed revokes his authority, and he must thereupon deliver over the property and account for it.2 But his authority lasts, pending an appeal, until the final grant of general administration.^ § 226. When Buoh Administration is Proper. — The COurt has no power to appoint such an administrator after the pro- bate of the will and the granting of letters testamentary, even though a caveat is filed which suspends the powers of the executors. It is only before letters have been granted, or after they have been revoked, that such administration is authorized,* nor can the court appoint such administrator pending a contest over the probate of a will which relates only to real estate.^ § 227. Must be a Contest. — If there is no contest about the granting of letters, mere delay in taking out administration by those entitled does not authorize this form of administration,® and if a will is declared void, and no appeal is taken, a later application by petition to determine whether a right exists to have this decision reversed does not constitute a contest which authorizes such a grant.'^ § 228. Receiver to administer Estate. — It may also be ob- served, though it is not strictly a part of the law of executors, 1 Exp. "Worthington, 54 Md. 359; Matter of Lewis, 17 Weekly Dig. N. Y. 311. ^ Cole V. Wooden, 3 Hair. 15; Gresham v. Pyron, 17 Ga. 263; Woolley V. Pemberton, 41 N. J. Eq. 397. 8 Gresham v. Pyron, supra; Re Crozier, 65 Cal. 332. * Munnikhuysen v. Magraw, 35 Md. 289. « Tooker v. Bell, 1 Dem. 52. ' Sawmill Co. o. Dock, 3 Dem. 55. ' Munnikhuysen v. Magraw, 47 Md. 195, SPECIAL ADMINISTBATION. 129 that there is a power belonging to courts of equity to appoint a receiver to collect and preserve the estate of a decedent, i£ there is imminent danger of loss to the estate and no personal representation is yet appointed, or the right is in controversy, or, in some States, if a case is made out against the executor or administrator of maladministration. Thus when one who was a non-resident claimed all the estate, sold the personal property, and without taking administration was preparing to leave the State, a court of equity, upon the application of a creditor and his allegation of these facts, appointed a receiver to hold the proceeds of the personal property until the estate could be settled properly and the creditor protected.^ § 229. Indifferent Person generally Appointed. — The prin- cipal question which arises upon application for the appoint- ment of a special administrator pendente lite is as to the person to be appointed. The court will generally decline to appoint a litigant, and will appoint a nominee presumed to be indifferent between the parties.^ Although in some States the court gives preference to the person named as executor, or to the next of kin, as it always may, the matter lying in its discretion,^ and no one has any claim upon the office except by special statutory provision.* In New York in a recent case the surrogate held that the person named as executrix in the will should, for motives of economy, be preferred as tem-, porary administratrix.^ If, however, the executor is charged with having exercised an undue influence upon the testator, he will not be appointed,^ 1 Flagler v. Blunt, 32 N. J. Eq. 518. * 1 Wms. Ex'rs, 498; Toung v. Brown, 1 Hagg. 54; Stratton v. Strat- ton, 2 Cas. temp. Lee, 49; Dietz v. Dietz, 38 N. J. Eq. 484; Mootrie v. Hunt, 4 Bradf. 173; EUmaker's Est., 4 Watts, 37. 8 Ga. Code, §§ 2489, 2494; Md. Code, art. 50, §§ 97, 105; Cain v. War- ford, 3 Md. 454; Me. Rev. Sts. c. 64, § 32; Cal. Code, Civ. Proc. § 1411; Doak's Case, 46 Cal. 573. * Dietz V. Dietz, 38 N. J. Eq. 484, and note. 6 Haas V. Childs, 4 Dem. 137. ' Cornwall v. Cornwall, 1 Dem. 1. 9 130 LAW OF EXECUTORS AND ADMINISTEAT0E3. and the question of his fitness must be decided in each case upon its own merits.^ If he has an interest hostile to the estate, he plainly should not be so appointed.^ § 230. Public Administration. — In many States proTision is made by statute for the appointment of a permanent officer in each county, whose duty it is to collect and take care of the estate of those persons who leave no representatives in the State to perform that office.' § 231. statute Provisions as to Public Administration. — The general scheme of the duties of the office may be col- lected from the Massachusetts statute, which is substantially as follows : — There shall be in each county one or more public adminis- trators appointed by the governor and council, holding office during the pleasure of the executive. These administrators shall take out letters of administration and administer all estates of persons who die intestate in their county or else- where leaving property to be administered in such county, and not leaving a known husband, widow, or heir in the Commonwealth.* § 232. statute Provisions as to Public Administration. — Administration shall not be granted to a public administrator when the husband, widow, or heir of the deceased in writing claims the right of administration, or requests the appoint- ment of some other suitable person to the trust, if such hus- band, widow, or heir or other person accepts the trust and gives bond. > Jones V. Hamersley, 2 Dem. 286; Matter of Bankard, 19 Weekly Dig. N. T. 452. ^ Howard v. Dougherty, 3 Redf. 535. » Mass. Pub. Sts. c. 181, §§ 1, 2; N.T. Kev. Sts. III. p. 2308; forN. Y. City, see Laws, 1882, II. o. 7; Va. Code, c. 126, § 10 (sheriff); lU. Rev. Sts. c. 3, §§ 44, 50; Cal. Code, Civ. Proc. § 1726; Ga. Code, § 2495 ; Me. Rev. Sts. c 64, § 25 ; R. I. Pub. Sts. c. 188 (town treasurer); Fla. Dig. c. 2, § 15 (sheriff). See Appendix of Statutes. * Pub. Sts. c. 131, §§ 1, 2. SPECIAL ADMINISTRATION. 131 The right of the public administrator over the property ceases when a will is proved, or the persons above mentioned claim the right of administration, and he must then pay over to the administrator or executor all the moneys, etc., in his hands.^ § 233. Statute Provisions as to Public Administration. — He may give a general bond, instead of a separate one for each estate, and shall render his accounts on the first day of the year. In such case the statute of limitations runs from the date of the letters in each case. The public administrator has the same general powers of collection and preservation as an ordinary administrator. He may, also, after three years be licensed to sell the real estate of the deceased, in the same manner as for payment of debts, and shall then deposit the balance in the treasury of the Commonwealth, for the benefit of lawful claimants.^ At any time within sis years after the deposit of the balance in the treasury of the State, heirs or others entitled may claim administration in the probate court, and after thirty days from the appointment the treasurer shall pay over to them all the deposit.** The priority of right of a public administrator as compared with creditors and next of kin has been already discussed.* § 234. Administration of Undevised Estate. — There are other special and limited forms of administration which are allowed in England for special pieces of property or special purposes or times, of which the administration durante absentia is the most important ; but they have either no application at all, or a very limited one under the statutes of the United States, yet are sometimes recognized. Thus when a portion of an estate is left undevised by a testator, it has been held that one may 1 Pub. Sts. c. 131, §§ 3, 4, 5. = pub. Sts. c. 131, §§ 6-12. » Pub. Sts. c. 131, §§ 13-15. * See supra, § 187; Morgan's Est., 53 Cal. 243; Turn's Est., Myrick's Prob. 181; Murphy's Est., Myrick's Prob. 185; Kobie's Est., Myrick's Prob. 226; Kelly's Est., 57 Cal. 81. 132 LAW OP EXECUTOES AND ADMINISTRATORS. be appointed administrator cum testamento annexo of the prop- erty devised, and also administrator by special grant of such portion of the estate as is not devised ; ^ for, strictly speaking, an executor has no power as such, in the absence of statutory authority, to administer any portion of the estate which is not devised by the will, and a fortiori an administrator cum testa- mento annexo cannot administer such estate ; and therefore further appointment as general administrator of this limited property was at common law necessary, and has been recog- nized in several of the United States.^ In most States, however, such undevised estate is by statute to be administered upon by the executor, but as an intestate estate ; and in such case the practice of the probate courts has been to allow this special administration without further ap- pointment or taking out any more letters;^ and when this is the case, the executor not only has the right, but is bound by law to administer the undevised portion of the estate as well as that devised.* § 235. Administrator ad litem. — One form, which has been recognized in New Jersey, is the appointment of a person as administrator ad litem. Thus it was held that a mortgagee who was proceeding in equity to foreclose the mortgage, was entitled to administration ad litem of the estate of a subse- quent mortgagee who had died a non-resident of the State, and on whose estate no other representation in the State had been taken out, this limited administration being necessary 1 Dean v. Biggers, 27 Ga. 73. 2 Harper v. Smith, 9 Ga. 461; Venable ». Mitchell, 29 Ga. 566; Deau V. Biggers, 27 Ga. 73; Montague v. Carneal, 1 A. K. Marsh. 351; Owens V. Cowan, 7 B. Mon. 152; Montgomeiy v. Millikin, 5 Sm. & M. 151; Moody v. Vandyke, 4 Binn. 31 ; Drayton v. Grimke, 1 Bailey Eq. 392; Perry u. Gill, 2 Humph. 218. 8 Mass. Sts. 1783, c. 24, § 10; Hays v. Jackson, 6 Mass. 152; Parris V. Cobb, 5 Rich. (S. C.) Eq. 450; Newcomb v. Williams, 9 Met. 533; Conn. Gen. Sts. § 564; Vt. Rev. Laws, § 2089. * Ne-woomb v. Williams, 9 Met. 533. SPECIAL ADMINISTRATION. 133 to carrying out the foreclosure suit, and not giving any right to receive the money collected on the mortgage, or otherwise interfere with the estate.^ The administration by consuls of the estates of foreigners has been already referred to.^ § 236. No Administration necessary, when. — It should also be remarked that under some circumstances no administra- tion is necessary. Thus in Maine, if the personal estate does not amount to twenty dollars in value, it goes to the widow, or if there is none, to the next of kin, without administration.^ So in Florida,* where the estate is not indebted, and the heir is sole, or the heirs agree among themselves. In Maryland,^ if a married woman leave no descendants and no debts, the title to the personal property devolves on the husband without administration, even where she holds that property as separate estate under Art. 45, § 1 of the Code.^ So in Georgia,^ if an estate does not exceed the sum allowed by law to widow and children, and a widow or child or both claim it, it shall be set apart to the widow and children, and if a wife pays deceased husband's debts, in such case she may take possession without administration.^ § 237. Administration waived by Agreement. — In any case, it is proper for all the persons interested in an estate which consists of property which requires no formal transfers to them by third parties for the completion of the title, to pay the debts and divide the property among themselves without ' administration.^ * Lothrop's Case, 33 N. J. Eq. 216 ; see also Martin v. Dry Dock, East Bdwy., etc. R. R. Co., 92 N. Y. 70, where letters to prosecute a claim for the death of the intestate by the negligence of a corporation were granted, but limited so as not to give power to collect the money on the claim, or compromise it without further bond being given. 2 See supra, § 189. » Me. Rev. Sts. c. 64, § 1. < Laws, 1883, c. 3434, § 1. « Laws, 1882, c. 477. « Willis V. Jones, 42 Md. 422. ' Laws, 1882-83, tit. V. No. 380, § 6. » Id. Tit. IV. No. 52. 9 Taylor v. Phillips, 30 Vt. 238; Babbitt v. Bowen, 32 Vt. 437; Need-' ham V. Gillett, 39 Mich. 574. 134 LAW OP EXECUTORS AND ADMINISTRATORS. § 238. Executor de son tort. — A species of executorship exists, which, although illegal in its inception, has some of the characteristics of a regular executorship. This is the admin- istration of the executor de son tort. Blackstone defines this executorship as follows : " If a stranger takes upon him to act as executor, without any just authority (as by Intermeddling with the goods of the deceased, and many other transactions), he is called in law an executor of his own wrong, de son tort, and is liable to all the trouble of an executorship, without any of the profits or advantages ; but merely doing acts of neces- sity or humanity, as locking up the goods, or burying the corpse of the deceased, will not amount to such an intermed- dling as will charge a man as executor of his own wrong." ^ § 289. Definition of. — The writers of the ecclesiastical courts define an executor de son tort as one " who takes upon him- self an office of executor by intrusion, not being so constituted by the deceased, nor for want of such constitution substituted by the ecclesiastical court to administer." ^ § 240. How far recognized in United States. — In many States this form of liability is recognized by statute or decis- ion, although statutory remedies ai-e frequently added to the common-law rules.^ In some States, however, the courts have said that probably no such office is recognized by their statutes.* 1 2 Bl. Com. 507. 2 Swinb. Pt. 4, § 23, pi. 1 ; Godolph. Pt. 2, c. 8, § 1; Wentw. Off. Ex. c. 14, p. 320 (14th ed.) ; Mitchell v. Lunt, 4 Mass. 658; Bacon v. Parker, 12 Conn. 213 ; Bennett v. Ives, 30 Conn. 329 ; Wilson v. Hudson, 4 Harriug. 168; White v. Mann, 26 Me. 361. 3 N. H. Gen. Laws, c. 195, § 15; Mass. Pub. Sts. c. 132, §§ 17, 18; N. Y. Rev. Sts. III. pp. 2292, 2395; Me. Rev. Sts. c. 64, § 37; Ga. Code, § 2441 ; R. I. Pub. Sts. 184, § 36; Mich. Sts. § 5856; N. J. Rev., I. p. 396, §§ 2, 6 ; DeLa Guerra v. Packard, 17 Cal. 192 ; Valencia v. Bernal, 26 Cal. 328; McConnell ». McConnell, 94 111. 298; Crispin v. Winkelman, 57 Iowa, 526,; Madison v. Shockley, 41 Iowa, 452. See Appendix of Statutes. ■* Prior V. Downey, 50 Cal. 399 ; Ansley v. Baker, 14 Tex. 607 ; Redf. Law & Pr. Surr. Ct. 220; Rust w. Witherington, 17 Ark. 129; Barasien V. Odum, lb. 122; Fox v. Van Norman, 11 Kan. 214. SPECIAL ADMINISTRATION. 135 § 241. Liability of such Executor to one regularly Ap- pointed. — The points in regard to this kind of administration are principally the questions relating to the liability of such executor to the executor or administrator duly appointed and to creditors of the deceased, for his acts, and these will be considered later under the liability of executors.^ A short examination will be made here of the acts which will impose this liability upon one who intermeddles with the estate of the deceased. It has been held that very slight acts of intermeddling with the goods of the deceased will make a person executor de son tort. Any act which evinces a legal control of the goods by possession or direction will, unexplained, make the person exercising the control or hav- ing this possession liable as such executor ; ^ and especially, demanding or receiving debts due to the deceased,^ or paying debts due by him,* or selling or converting to his own use goods belonging to the deceased's estate.^ Nor is it any excuse that one so charged acted under the belief that the supposed deceased was alive, and was acting as his agent, but without any authority.® § 242. What Acts do not constitute this Liability. — But there are many acts which do not impose this liability, as they are necessary acts of kindness and charity, such as locking up the goods of the deceased for preservation, directing the funeral and paying the expenses thereof, feeding the cattle 1 See infra, § 675 ; Gayton v. Flack, 7 Md. 403. 2 Emery v. Berry, 28 N. H. 473; Campbell v. Tousey, 7 Cow. 64; Lee V. Chase, 58 Me. 435; White v. Mann, 26 Me. 361; Mitchel v. Lunt, 4 Mass. 659 ; Koot v. Greiger 97 Mass. 178. 8 Godolph. Pt. 2, c. 8, § 1; White v. Mann, 26 Me. 870, 371; Leach v. Pillsbury, 15 N. H. 187. < Bennett v. Ives, 30 Conn. 829. « Read's Case, 5 Co. 33 h; Padget v. Priest, 2 T. R. 97; Allen v. Kimball, 15 Me. 116; Glenn v. Smith, 2 G. & J. 513; Root v. Geiger, 97 Mass. 178; Wilson v. Hudson, 4 Harring. (Del.) 168; Truett v. Cum- mons, 6 111. App., 73. ' White V. Mann, supra. 136 LAW OP EXECUTORS AND ADMINISTRATOES. of the deceased, providing for his children, and other acts of a similar nature.^ § 243. As to Real Estate. — And it is only interference with the personal property of the deceased which has this effect, for as to wrongs committed to the real estate, the wrong-doer is a trespasser, and liable as such to those entitled to the real estate.^ But there may be such an interference with a leasehold interest or a term of years as will make the one who so in- terferes executor de son tort, as where a man enters upon the land leased to the deceased and takes possession claiming the particular estate.^ And if the heirs of a deceased mort- gagee enter to foreclose and receive rents and property, they become liable as executors de son tort, since they have not the right to foreclose, the mortgage being personal property and going to the administrator.* § 244. Intermeddling 'with Property not belonging to the Estate. — Moreover, the personal property must belong to the estate, for if there has been a sale of it, or a voluntary conveyance even, which has not been avoided by creditors before the death of the intestate, the person who then holds it cannot be charged as such executor ; ^ but if the sale was fraudulent and of such a nature that it may be avoided by creditors and is so avoided, such a person may be charged as executor de son tort if he intermeddles with the goods.® 1 Wentw. Off. Ex. c. 14, p. 323; Godolph. Pt. 2, o. 8, §§ 6, 8; Dyer, 166 b, in margin ; Perkins v, Ladd, 114 Mass. 420; Glenn v. Smith, 2 G. & J. 513; Emery v. Berry, 28 N. H. 473; Bacon v. Parker, 12 Conn. 212; Taylor ». Moore, 47 Conn. 278. 2 Mitchel V. Lunt, 4 Mass. 658, 659; Nass v. Van Swearingen, 7 Serg. & R. 192, 196; King v. Lyman, 1 Root (Conn.), 104; Pryorp. Downey, 50 Cal. 399. « Godolph. Pt. 2, o. 8, § 5; Garth v. Taylor, 1 Freem. 261; 9 Ad. & E. ST. 8. 365. ^ Haskins v. Hawkes, 108 Mass. 381. 5 Morrill v. Morrill, 13 Me. 415. « Allen V. Kimball, 15 Me. 116; Root v. Geiger, 97 Mass. 178. SPECIAL ADMINISTRATION. 137 § 245. Effect of Appointment of regular Ezecutor. — After an administrator or executor has been appointed, one who intermeddles with the estate is not an executor de son tort, but is liable to such executor or administrator as a tres- passer ; ^ but if such trespasser takes goods, or otherwise acts in the estate claiming to be executor or administrator, he may be charged as executor de son tort? If one acts simply as agent for another in intermeddling with the estate, it has been held that the principal is liable as executor de son tort, and not the agent.^ § 246. Purchaser from Executor de son tort. — One who pur- chases in good faith of an executor de son tort does not himself become liable as such executor,* unless the facts of the case show a case of collusion ; in which case both would be liable.* Under the statutory system of probate law in Maryland, however, sale by such executor is void and passes no title, since by statute it is there provided that any sale even by a regularly appointed executor made without an order of the court is void.* § 247. One claiming Title is not Executor de son tort. — Nor is one who takes the goods under a claim of right in himself, and the claim is bona fide and colorable, an executor de son tort, although he may fail in making out his title to the goods.^ Nor one who takes the goods as agent for or by authority of a duly appointed executor or administrator.^ § 248. Wrongful Acts cured by subsequent Appointment. — If 1 Godolph. Ft. 2, c. 8, § 3. 2 Read's Case, 5 Co. 34 h ; Godolph. Ft. 2, c. 8, § 1 ; Dorsey v. Smith- son, 6 H. & J. 61 ; Chamberlayne v. Temple, 2 Rand. 384. s White V. Mann, 26 Me. 376, 377; Valencia v. Bernal, 26 Cal. 328. * Godolph. Ft. 2, c. 8, § 1; Smith v. Porter, 35 Me. 287; 9 Ad. & E. ST. s. 365. 8 9 Ad. & E. N. s. 365. « Rockwell V. Young, 60 Md. 563. See infra, § 447. ' Flemming ». Jarrat, 1 Esp. N. P. 336; Smith v. Porter, 35 Me. 287; Densler v. Edwards, 5 Ala. 31. 8 Hall V. Elliott, Peak, N. P. 87; Turner v. Child, 1 Dev. 85. 138 LAW OP EXECUTORS AND ADMINISTRATOES. the one who intermeddles afterwards takes out regular let- ters of administration, he thereby cures the tortious acts, and is liable only as an ordinary administrator,^ and if he has received payments of money and given receipts therefor, he is liable in his accounts as administrator for the money, and the person to whom he gave the receipt is protected by it from suit by the administrator ; ^ and if he sells goods of the estate while he is such executor de son tort, and afterwards is regularly appointed administrator, he may ratify the sale, and sue the vendee for the price.^ But it is said that the admin- istrator thus appointed is not bound by his previous acts.* § 249. Facts for Jury. — The question whether one is liable as such executor is one of law and not to be left to a jury, although the question whether he did the acts which are complained of, is for the jury, whenever the question arises before that tribunal.^ If the death of the supposed deceased is doubtful, that must be found as a fact by the jury.^ 1 Shillaber v. Wyman, 15 Mass. 324; Emery v. Berry, 28 N. H. 473; Pinkham v. Grant, 78 Me. 158. 2 Alvord V. Marsh, 12 Allen, 604. 8 Hatch V. Proctor, 102 Mass. 351. * Wilson V. Hudson, 4 Harring. 168. » Padget V. Priest, 2 T. E. 99. » White v. Mann, 26 Me. 370. APPOINTMENT OP EXECUTORS AND ADMINISTRATOBS. 139 CHAPTER IX. THE APPOINTMENT OP EXECUTORS AND ADMINISTRATORS. § 250. Proceedings for Appointment. § 255. Waiver of Notice. 251. Petition for Appointment. 256. Hearing. 252. Citation. 257, Same subject. 253. Form of Citation. 258. Decree. 254. Notice how Served. 259. Forms. § 250. Proceedings for Appointment. — Having treated of the courts which have jurisdiction of probate matters, and also of the question who may be executors and administrators, and the various kinds of administrators, we will now consider the proceedings for the appointment of executors and admin- istrators. These proceedings are regulated by the statutes and rules of the various courts in the different States, but are generally modelled upon the practice of the English courts of like juris- diction, and consist of a petition, signed either by the appli- cant for the appointment or some person interested in the estate, a citation issued by the judge of probate to all persons interested in the estate, — which citation is published either in some newspaper or posted in some public place, and is, with some exceptions, notice of the proceedings to all persons interested in them ; then a hearing, at which the petitioner must give evidence to support his case, and objection may be made by those, if there are any, opposed to tlie granting of the petition ; and finally, a decision by the judge of probate, grant- ing or refusing the prayer of the petition. § 251. Petition for Appointment. — As to the petition, there is not any great degree of formality required. It should set 140 LAW OP EXECUTORS AND ADMINISTEATORS. forth the facts required to give the court jurisdiction.^ For instance, it must show that the deceased, if a resident of the State, was a resident of the county where the petition is filed ; but if it state that he was " late of " the county,^ or if it is addressed to the judge of the county of X., and shows that A., late a resident of the county aforesaid, died in said county, it is enough.^ Forms of petition for the probate of a will and appointment of executor, for the appointment of an administrator, and for the appointment of an administrator de bonis non cum testa- mento annexo, are annexed to the end of this chapter. § 252. Citation. — The citation forms an important part of modern probate practice. It is a necessary pre-requisite, as has been already seen, to the appointment of one having an inferior right to administer, in place of one having a superior right to that office.* And letters granted without such notice are voidable, and will be revoked upon the application of the proper party ; ^ but the letters are not void, and the objection that they were granted without notice cannot be taken by one not interested in the estate, in a collateral action, when he is sued by the executor or administrator .^ § 253. Form of Citation. — The ordinary citation at the present time is generally regulated by statute, and is not by personal notice to the parties interested, but by publication in 1 Beckett v. Selover, 7 Cal. 233; Townsend v. Gordon, 19 Cal. 20S; Lucas V. Todd, 28 Cal. 186. 2 Beckett ». Selover, supra ; Abel v. Love, 17 Cal. 233. » Townsend v. Gordon, 19 Cal. 188. * See supra, §§ 184, 185. 6 Kelly V. West, 80 N. Y. 145; Wilcoxon v. Keese, 63 Md. 545, Smith ». Stockbridge, 39 Md. 645; Maupay's Est ,2 Brewst (Pa.) 491; Bieber's App., 11 Pa. St. 162; Cleveland v. Quilty, 128 Mass. 580; Torrance v. McDougall, 12 Ga. 526; Suco. of Talbert, 16 La Ann. 230; Cobb v. New- comb, 19 Pick. 336; Taylor u. Hosick, 13 Kan. 518; Todhuntert;. Stewart, 39 Ohio St. 184. » Marcy ». Marcy, 6 Met. 367; Kelly v. West, 80 N. Y. 145; James V. Adams, 22 How. JPr. 409; Sheldon v. Wright, 7 Barb. 39; Taylor v. Hosick, 13 Kan. 518. APPOINTMENT OF EXBCDTOES AND ADMINISTRATORS. 141 a newspaper or in some public place, of a notice of the petition to all persons interested in the estate of the deceased.^ A form of the citation is appended to this chapter, and the man- ner of publishing the notice prescribed by statute should be strictly followed. Sometimes no citation is necessary. Thus in Maine, none is required when the administration is granted to the widow, husband, next of kin, or husband of the daugh- ter of the deceased, or two or more of them ; ^ and it has already been seen that where there are no persons having a prior right to administer, but only a class having equal rights, the judge may appoint one without notice or citation to the other.3 And in some States it is provided that notice need not be given to those resident out of the State or the county.* § 254. Notice, how served. — The notice should contain a definite statement of the time and place of the hearing.^ If the notice is duly published, it binds those to whom it applies, and the fact that one of them is at the time insane, does not invalidate the proceedings as to hira." The question has arisen, whether such a public notice is sufficient to bind all parties interested in the estate, although some of them may never see it, and it is held that such a notice is all that is practicable, since, in many cases, the number of persons who ought to be served with notice, and the difficulty of ascertaining who are so entitled, render it impossible to have a notice of the proceedings served upon all personally.'^ § 255. 'Waiver of Notice. — The publication of notices which are required to be issued by the probate judge may, by the written agreement of all .parties interested in the estate, be 1 Wells V. Child, 12 Allen, 332; Sargent v. Cox, 2 McCord, 309. 2 Bean v. Bumpus, 22 Me. 549. * See supra, §§ 194, 195, et seq. * Todhnnter v. Stewart, 39 Ohio St. 184. 6 Beckett v. Selover, 7 Cal. 234. « Parker v. Parker, 11 Cush. 524. 7 Arnold v. Sabin, 1 Cush. 525, 529, 530; Wells v. Childs,''l2 Allen, 332; Cross v. Brown, 51 N. H. 489. 142 LAW OP EXECUTORS AND ADMINISTRATOES. ■waived.^ And in Massachusetts, when any notice is by law to be published in a newspaper, the party who is ordered to publish the notice may select the newspaper, subject, however, to the approval of the judge ordering the notice.^ § 256. Hearing. — The hearing is one of more or less for- mality. As to evidence, it is undoubtedly true that in all cases the judge should be satisfied of the existence of the facts necessary to support the applicant's case, before granting the application, for the probate court cannot move on a mere default, like a court of common law, but must have proof to support its action. Still, if there is no contest, the court commonly acts upon slight proof, especially if all the parties interested in the estate assent to the granting of the applica- tion. But as the judge is the arbiter of the facts, he may order such degree of proof as he considers necessary, either affidavits or other forms of testimony .^ Thus, when one ap- plied for administration as being the son of the deceased, and his legitimacy was denied by the public administrator, the mar- riage and birth being alleged to have taken place in France, the judge suspended proceedings, and issued a commission to take testimony on the subject in Prance.* § 257. Hearing. — At the hearing on the petition the peti- tioner is regarded as the plaintiff, and has the right to open and close.^ Only those who are in some way interested in the estate are allowed to petition, object, or offer proof.^ A husband is generally interested in the estate of his deceased wife, if she left personalty.'^ The guardian of an infant who 1 Mass. Pub. Sts. c. 156, § 37. 2 Mass. Pub. Sts. o. 156, § 38. 8 Barwell v. Shaw, 2 Bradf. 322; Welch's Est., Myrick's Prob. 202; Jordan v. Thompson, 67 Ala. 469. * Ferri v. Pub. Admr., 3 Bradf. 151. 6 Weeks v. Sego, 9 Ga. 199. « Cleveland v. Quilty, 128 Mass. 578; Augusta & S. R. R, Co. v. Pea- cock, 56 Ga. 146. T Breen v. Pangborn, 51 Mich. 29. APPOINTMENT OP EXECUTORS AND ADMINISTRATORS. 143 is interested in the estate, is himself interested so far as to allow him to represent the infant in the probate proceedings.^ And so is one who is, by duly executed power of attorney, ap- pointed by a legatee and executrix to have in her name the will proved and letters of administration granted.^ But one who is a debtor of the estate is not one interested in the estate.* A creditor, although living in another State, is " in- terested " in the estate ; * but one who makes a contract with executors by which the estate owes him a debt, is not a creditor of the deceased.^ The objection to the right of a party to appear because he is not interested in the estate, is taken too late if it is first made on a hearing in the Supreme Court, on exceptions to the action of the court below as to matters of law,^ nor can it be raised in a collateral proceeding.'^ § 258. Decree. — After hearing the parties entitled to offer proof in the case, the judge of probate makes a decree grant- ing or refusing the prayer of the petition, according as he finds that the proof supports the petition or does not; And if he grants the petition, letters of administration or letters testamentary issue, in accordance with the decree. Forms of the decree of the court and of letters of administration, are given at the end of this chapter. The grant of letters, both to executors and administrators, is generally dependent upon his or their giving a bond for the faithful performance of the duties of the office.^ This subject is one of so much importance that the consid- eration of it will be reserved for a separate chapter. 1 Re Chase, 32 Hun, 318. « Russell v. Hartt, 87 N. Y. 19. « Drexel v. Berney, 1 Dem. 163. * Branch «. Rankin, 108 111. 444. / 6 Fowler v. Walter, 1 Dem. 240. « Dean v. Biggers, 27 Ga. 73. ' Pick V. Strong, 26 Minn. 303. « Mass. Pub. Sts. c. 129, § 2. 144 LAW OP EXECUTORS AND ADMINISTRATORS. § 259. Forms : To the Honorable the Judge of the Probate Court in and for the Gownty of : — Respectfully represents , of , that , who last dwelt in , died on the first day of July, in the year of our Lord one thousand eight hundred and eighty-one, pos- sessed of goods and estate remaining to be administered, leaving a widow, whose name is , and as his only heirs-at-law and next of kin, the persons whose names, residences, and relationship to the deceased are as follows, viz. : — That said deceased left a will and a codicil herewith presented, wherein your petitioner is named Executor, and wherein the testator has requested that your petitioner be exempt from giving a surety or sureties on his bond. Wherefore your petitioner prays that said will and codicil may be proved and allowed, and letters testamentary issued to him with- out giving a surety or sureties on his official bond. Dated this day of , a. d. 188 Signature. The undersigned, being all the heirs-at-law and next of kin, and the only parties interested in the foregoing petition, request that the prayer thereof be granted without further notice. To the Honorable the Judge of the Probate Court in and for the County of : — Ekspectfully represents , of , in the County of , that , who last dwelt in , in said County of , died on the first day of July, in the year of our Lord one thousand eight hundred and eighty-one, possessed of goods and estate remaining to be administered, leaving a widow, whose name is , and as his only heirs-at-law and next of kin the persons whose names, residence, and relationship to the deceased are as follows, viz. : — APPOINTMENT OP EXECUTORS AND ADMINISTRATORS. 145 That said deceased left a will , herewith presented, wherein , of said , was named executor, and that said died after being appointed as such executor. Wherefore your petitioner prays that said will may be proved and allowed, and letters of administration with the will an- nexed issued to him. Dated this day of , a. d. 188 . Signature. The undersigned, being all the heirs-at-law and next of kin, and the onij' parties interested in the foregoing petition, request that the prayer thereof be granted without further notice. To the Honorable the Judge of the Probate Court in and for the County of : — EESPECTFtTLLT represents , of , in the County of , that , who last dwelt in , in said County of , died on the day of , in the year of our Lord eighteen hundred and eighty-one, intestate, possessed of goods and estate remaining to be administered, leaving a widow, whose name is , and as his only next of kin, the persons whose names, residence, and relationship to the deceased are as follows, viz. : — That j-our petitioner is widow of the deceased. Wherefore your petitioner prays that she may be appointed Ad- ministratrix of the estate of said deceased. Dated this day of , a. d. 1881. Signature. The undersigned, being all the parties interested in the fore- going petition, desire the same may be granted without further notice. Commontnealti) of ^a»s&cliWttifi. , ss. PROBATE COURT. To the next of kin, creditors, and all other persons interested in the estate of , late of , in said county, deceased, intestate : — 10 146 LAW OP EXECUTORS AND ADMINISTRATORS. Whereas, application has been made to said Court to grant a letter of administration on the estate of said deceased to , of , in the County of You are hereby cited to appear at a Probate Court, to be held at , in said County of , on the Tuesday of , at nine o'clock before noon, to show cause, if any you hare, against granting the same. And the said petitioner is hereby directed to give public notice thereof, by publishing this citation once a week, for three successive weeks, in the newspaper called the , printed at said , the last publication to be two days at least before said court. Witness, R. S, T., Esquire, Judge of said Court, this day of , in the year one thousand eight hundred and eighty-one. X. Y. Z., Register. I have served the foregoing citation as therein ordered. /Signature of Petitioner. CotnmonTDealtl) of H^&ii&t^xatiH. , ss. At a Probate Court holden at , in and for said County of , on the day of , in the year of our Lord one thousand eight hundred and eighty-one, The petition of , praying to be appointed Administratrix of the estate of , late of , in said County of , deceased, intestate, having been considered, and it appearing that all persons interested have been notified, according to the order of Court, to appear and show cause, if any they have, against the same ; It is decreed, that said petitioner be appointed Administratrix of said estate , first giving bond with sufficient sureties for the due performance of said trust. R. S. T., Judge of Probate Court. ADMINISTRATION BONDS. 147 CHAPTER X. ADMINISTRATION BONDS. § 260. Bonds, when Eequired in Eng- § 274. Test of Validity of Appointmeut. land. 275. Bond of several Executors. 261. Generally Required in the United 276. Penalty of the Bond. States. 277. Valuation of Property. 262. Bonds Required when Security is 278. Claims for Negligent Killing of Inadequate. Deceased, how valued. 263. Bonds, when Eequired. 279. Bond covere Real Estate. 264. Bond Required by Testator. 280. Obligee of Bond. 265. Bond after Appointment. 281. Sureties on Bond. 266. Bond of Administrator de bonis 282. Exemption from Giving Sureties rum. on Bond. 267. Bond to pay Debts and Legacies. 283. Notice by Publication. 268. Effect of such Bond. 284. Sureties, Qualifications of. 269. Same subject. 285. Corporations as Sureties. 270. Substance of Bond. 286. New Bond or Sureties. 271. Effect of not giving Bond on 287. Counter Security from Executor Appointment. or Administrator. 272. Same subject. 288. Discharge of Surety. 273. Effect of Irregular or Defective 289. Effect of Appeal on Bond. Bond. § 260. When Required in England. — In England it has not been the practice to take bonds as a matter of course from executors to secure the faithful performance of their duties, since the choice of the testator is supposed to be of persons suitable to perform the duties of the office, and in whom con- fidence can be placed,^ although if the executor is insolvent a court of chancery looking at him as a trustee will com- pel him to give security before entering upon the trust.^ In regard to administrators, however, the practice has always been otherwise. They have always been considered merely officers of the court, and the court therefore takes security 1 Ames V. Armstrong, 106 Mass. 18. 2 Duncamban v. Stint, 1 Ch. Cas. 121; Rous v. Noble, 2 Vern. 249. 148 LAW OF EXECUTOKS AND ADMINISTRATORS. from them for the due performance of those duties, and this has been the case at least since the time of Henry VIII.^ §261. Generally Required in the United States. — In the United States the practice is different, and in the majority of the States it is provided by statute that an executor as well as an administrator shall, as a matter of course, before receiv- ing his letters and entering upon his duties, give a bond to secure the proper performance of those duties.^ In several States, however, while an administrator is obliged to give such bond the English practice is retained as to an executor, and he is not obliged to give such bond, unless the circum- stances of the case seem in the discretion of the judge of probate to demand it, and he orders the executor to do so.^ § 262. Bonds when Security is Inadequate. — Thus it is pro- vided by statute in some States that if the executor resides out of the State he can be required to give bond.* In New York, a peculiar feature exists under the code. There is no section of the code expressly requiring an ex- ecutor to give bond, but it is provided that, within a limited number of days, an objection may be made to the issue of letters to an executor, if his circumstances are such that they do not afford adequate security to creditors or persons inter- ested in the estate, or if he is a non-resident of the State but citizen of the United States. If this objection is made good, the executor may still, by giving bond, obtain letters ; but if he does not, the statute is construed by the courts to mean that 1 Sts. 21 Hen. VHI., c. 5, § 3; 20 & 21 Vict. o. 77, § 80. " Mass. Pub. Sts. c. 129, § 5; c. 130, §§ 2, 8, 11; c. 131, § 6; Ala. Code, § 2365; Cleveland v. Chandler, 3 Stew. 489; Cal. Code, Civ. Proc. 1388; Conn. Laws, 1885, c. 110, § 22; Holbrook». Bentley, 32 Conn. 502; 111. Ann. Sts. c. 3, §§ 7, 23; Ind. Rev. Sts. c. 2242; Iowa Kev. Code, § 2362; Me. Rev. Sts. c. 64, §§ 9, 19; Md. Rev. Code, art. 50, §§ 49, 76; Mich. Ann. Sts. §§ 5835, 5850; N. H. Gen. Laws, c. 195, § 12 ; Ohio Rev. Sts. §§ 5996, 6006; R. L Pub. Sts. c. 184, § 10; Vt. Rev. Laws, § 2066. 8 Ga. Code, §§ 2447, 2505. See § 262. * N. J. Rev., Orphans' Court, §§ 25, 43; Suppl., Orphans' Court, § 8; Pa. Bright. Purd. Dig., Deced. Est., § 21. ADMINISTRATION BONDS. 149 letters shall not be granted to him.^ Under this statute if letters are issued to a non-resident without such objection, the letters cannot be subsequently revoked, nor can he be compelled to give a bond.^ The " circumstances " referred to in the above statute have been said to be all the circumstances in the case, the char- acter and situation of the applicant as well as his financial standing. Poverty alone may or may not amount to such circumstances;^ but insolvency, that is, having more debts than property, has been held to render the applicant unsuit- able without security.* The fact that the applicant's property is less in value than the estate does not of itself afford a case for security.^ § 263. Bonds, when Required. — In Pennsylvania a non- resident executor may be compelled to give bond, but a resi- dent executor can claim appointment without giving bond, and can only be compelled to give bond after his appoint- ment.^ So in Virginia an executor does not as a matter of course have to give bond, and if he is wrongfully required to by the probate court, he may appeal.^ § 264. Bond Required by Testator. — In those States where the executor is not bound by law to give a bond, he may be required to do so by the testator in the will, and if so, the probate court will not grant letters till he gives a bond. Such a bond cannot be made to the probate court or the State, as other probate bonds are, for there is no statutory authority for taking such a bond, but it should be made to the legatees under the will.* 1 Code, Civ. Proc. §§ 2638, 2667; Wood v. Wood, 4 Paige, 302. 2 Postley V. Cheyne, 4 Dem. 492, 494. ' Sutton V. Weeks, 5 Redf. 353; Ballard v. Charlesworth, 1 Dem. 501; Hovey v. McLean, lb. 896. ^ Holmes V. Cock, 2 Barb. Ch. 428; Wood v. Wood, 4 Paige, 302. s Mandeville v. Mandeville, 8 Paige, 478. e Harberger's App., 98 Pa. St. 29. 7 Fairfax v. Fairfax, 7 Gratt. 36. 8 Sullivan's Will, 1 Tuck. 94. 150 LAW OF EXECUTORS AND ADMINISTEAT0B8. § 265. Bond after Appointment. — Besides the provision for requiring a bond of an executor before his appointment, it is generally provided by statute that if an executor be guilty of mismanagement of the estate or devastavit after his appoint- ment, bond may be required of him if he has not already given one, to protect those interested in the estate, and his solvency is no answer to an application for such a bond. If he does not give it he may be removed.^ § 266. Bond of Administrator de bonis non. — In any case an administrator de bonis non does not have the exemption of an executor, but must give bond a's other administrators do-^ The various questions relating to the liability of the executor or administrator, or the sureties on these bonds, will be con- sidered later in the chapters on the liabilities of executors.^ § 267. Bond to pay Debts and Legacies. — A. different species of bond is authorized in many States in case of an executor or administrator who is also residuary legatee. On account of his interest in the estate, he is allowed to give a bond to pay debts and legacies, and is then exempt from filing inventory or account. An example of this provision may be found in the Massachusetts statute, which provides that in the case of an executor who is also residuary legatee, if it appears to the court that the bond is not necessary for the protection of any person interested in the estate, the court may permit him to give a bond to pay all the debts and legacies of the testator, and the allowances of the widow and minor children for necessaries. In such a case the executor need not return any inventory, but the bond does not discharge the lien on the real estate for the payment of debts, except such part as is sold by the executor to a bona fide purchaser for a valuable consideration. All the real estate not so sold may be taken 1 McKennan's App., 27 Pa. St. 237; and see statutes, supra, §§ 261, 262. 2 Small V. Com., 8 Pa. St. 101 ; Brown, Ex p. 2 Redf. 22. See stat- utes, supra, § 261. » See infra, Chapter XXVII. ADMINISTRATION BONDS. 151 on execution by a creditor not otherwise satisfied, as if the executor had given a bond in ordinary form.^ § 268. Effect of such Bond. — When an executor has given such a bond as this it seems that he becomes liable absolutely to perform the conditions of the bond, whether the assets of the estate are sufficient to pay the debts and legacies or not,^ although, in a case in Massachusetts, it was said that such a bond is only prima facie evidence of assets, liable to be re- butted by proof.^ The effect of such a bond upon the real estate is that it vests at once in the devisees, subject to the right of creditors to take it for their debts,* and cannot under the Massachusetts statute be sold by the executor or administrator de bonis non to pay debts, as such sale is not authorized by the statute, and is absolutely void as against the devisee.^ § 269. Effect of such Bond. — If the real estate is devised subject to a specific legacy, such a bond does not relieve the real estate from that specific legacy, but it does from general legacies.^ Such a bond renders the executor liable as executor absolutely for the debts and legacies, and is intended to secure that liability ,'' but does not render him liable as a principal debtor in such a way that if the statute of limitations for claims against the estate has elapsed, a creditor can sue the executor personally on the bond as -an original promise to pay debts and legacies.^ Whether or not he is personally liable, was queried in a somewhat recent case,® but not decided. That case de- 1 Pub. Sts. c. 129, §§ 6, 7; 130, § 8; see also Statutes, supra, § 261. 2 State V. Nichols, 10 G. & J. 48; Troy Nat. Bank v. Stanton, 116 Mass. 435. * Jones V. Richardson, 5 Met. 249. * Thayer v. Winchester, 133 Mass. 449. ^ Thayer v. Winchester, supra; Thompson v. Brown, 16 Mass. 172. * Amherst College v. Smith, 134 Mass. 543. ' Jenkins ». Wood, 140 Mass. 66; State v. Nichols, 10 G. & J. 48. 8 Jenkins v. Wood, supra. ' Jenkins v. Wood, 144 Mass. 239. 152 LAW OP EXECUTORS AND ADMINISTRATORS. cides that he must pay all debts before his own, if the assets are not enough for both. Moreover, the theory being that the estate in such case is put into the executor's hands to pay the debts and legacies, if he does not do so, but dies or resigns, or is removed, and an administrator de bonis non is appointed and receives the residue of the estate, such resi- due of the estate is liable in the hands of such an adminis- trator.i If such a bond is once given, it cannot be recalled and cancelled afterwards.^ § 270. Substance of Bond. — Administration bonds are gen- erally made out in favor of the judge of probate or the State or some public officer, and are conditioned that the executor or administrator shall make and return to the probate court an inventory of all the testator's or intestate's real and per- sonal property, shall administer the estate according to law or according to the will of the deceased, as the case may be, shall render accounts of his administration [and in case of an administrator] shall pay to such persons as the court may direct, any balance in his hands upon the settlement of his account, and shall deliver up his letters if a will should after- wards be proved.^ A bond which omits any part of the con- dition prescribed by statute, — for example, in Maine, to ac- count once a year under oath, — is bad, and cannot be sued upon as a probate bond.* § 271. Effect of not giving Bond on Appointment. — The effect of not giving bond upon the appointment of an executor or administrator has been much discussed. The better opin- ion seems to be that the appointment is conditioned upon the giving bond, and if no bond is given the appointment never takes effect, and the office is vacant. Thus in a Massachusetts case,^ the court says obiter, " prob- 1 Collins V. Collins, 140 Mass. 506. 2 Alger V. Colwell, 2 Gray, 404. « Mass. Pub. Sts. c. 129, § 5; c. 130, § 2; and see statutes, supra, § 261; Hall v. Cu.shing, 9 Pick. 395. * Frye v. Crockett, 77 Me. 157. ^ Picquet's App., 5 Pick. 76. ADMINISTRATION BONDS. 163 ably the administration would be void if such bond were not given," and the statute provides in such case that letters shall be granted to the other executors or administrators with the will annexed, or otherwise, as the case requires, without saying anything about revoking the original appointment, plainly im- plying that that appointment is of no effect.^ In a case in Maine, also, language is used by the court to the effect that an appointment is not complete until the bond is so given,^ and in Pennsylvania it is expressly provided by statute that the appointment is void if the bond is not given.^ § 272. Effect of not giving Bond on Appointment. — The wording of the statutes in any case may change the effect very much. Thus it has been said, under the statute of New Hamp- shire, that the appointment is complete before giving the bond ; * and also in other States, that, although no bond is given, the office is filled in such a sense that no other incum- bent can be appointed until the appointment is revoked, although of course the appointment may be revoked if the appointee persists in refusing to give the required bond.^ § 273. Effect of Irregular or Defective Bond. — If, however, a bond is given, it may be irregular or insufficient, and the question arises, what effect that has on the appointment, if any. It has been held that taking a bond with one surety, when two or more are required by statute, does not invalidate the appointment of the administrator so as to render void in a collateral case a sale of real estate made by him, but is an irregularity which should have been cured by appeal;® but the reverse of this is held in Pennsylvania, under the statute of 1 Mass. Pub. Sts. c. 129, §§ 2, 3. " McKeen v. Frost, 46 Me. 248; and see Pryor v. Downey, 50 Cal. 388;' Cleveland v. Chandler, 3 Stew. (Ala ) 489. 8 Blight. Purd. Dig., Deced. Est., § 23. * Morgan v. Dodge, 44 N. H. 262. 6 Maxwell, Ex p., 37 Ala. 362; Wingate v. Wooten, 5 Sm. & M. (Miss.) 247; Feltz v. Clark, 4 Humph. (Tenn.) 79. « Bloom V. Burdick, 1 HiU (N. Y.), 130. 154 LAW OP EXECUTORS AND ADMINISTRATORS. that State.i It has been held in Maine, that an imperfect bond is suflficient, if approved by the judge of probate, to en- title the executor who gives it to accojunt.^ So a bond not endorsed " approved " by the judge, as required by statute, is sufficient to entitle the administrator to account.^ So a bond approved by the judge of probate, in which the sureties are each bound in one half the sum of the penalty, is valid in a collateral action ; for example, a suit in equity to enforce pay-; ment for land sold by an executor.* § 274. Test of Validity of Appointment. — There can be no doubt that if any bond has been given which has been ap- proved by the judge of probate, in the lawful exercise of his jurisdiction, it is sufficient to render the appointment incon- testable, in any action except an appeal from the judge's order approving it ; ^ but this approval by the judge may be without jurisdiction, and is then void. Thus where by statute a judge is empowered to take a bond without sureties after notice to creditors, and a judge took such a bond without notice to creditors, it was held that the bond was void, in such a sense at least that the statute of limitations against creditors' claims, which begins to run from the giving of the bond, did not be- gin to run from the giving of such a bond.^ § 275. Several Executors. — If two or more are named as executors in the will and appointed, only those who give bond may intermeddle in the settlement of the estate.'^ If there are several executors or administrators, each may give a sep- arate bond in order to protect himself from liability for the acts of his fellows.* The effect of this separation upon the 1 Bradley v. Com., 31 Pa. St. 522. 2 Pettingill v. Pettingill, 60 Me. 411. ' Cameron v. Cameron, 15 Wis. 5. * Baldwin v. Standish, 7 Cush. 207, ' Baldwin v. Standish, supra. " Aberorombie v. Sheldon, 8 Allen, 532. ' Mass. Pub. Sts. c. 129, § 9. ° Mass. Pub. Sts. c. 143, § 3 ; Ames v. Armstrong, 106 Mass. 19 ; Green ADMINISTRATION BONDS. 155 liability of the several executors will be discussed later, in considering the liability of executors and administrators. § 276. Penalty of the Bond. — The penal sum of the bond is generally double the estimated value of the personal estate, as in England,^ or else is in the discretion of the judge of probate.2 § 277. Valuation of Property. — In estimating the value of the property, no account can be taken of property which the de- ceased has conveyed or assigned away, even though the con- veyance be claimed to be fraudulent, since the probate court cannot try title to property.^ If the estimated value of the property is very large, it has been held, on application for letters pendente lite, that tlie personal property consisting of stocks, bonds, etc., may be deposited in court and a bond given for the balance only.* In the case of an administrator de bonis non the penalty of the bond should be only double the amount of the property not already administered.^ § 278. Claims for Killing Deceased. Sum Valued. — In New York, by statutory provision, it is enacted that if part of the estate consists of a claim against a corporation for negli- gence causing the death of the deceased, a nominal amount is inserted as the penalty in the bond, and special letters are granted for the purpose of prosecuting the claim, but without V. Hanbury, 2 Brock. 403; Lidderdale v. Eobinson, 2 Brock. 159; Boyd «. Boyd, 1 Watts, 368; Sparhawk v. Buell, 9 Vt. 31; Clarke v. State, 6 Gill & J. 288; Littles;. Knox, 15 Ala. 576; III. Ann. Sts. c. 3, §24; Mich. Ann. Sts. §§ 5846, 5865; Vt. Rev. Laws, § 2068; and see Statutes, supm, §261. 1 20 & 21 Vict. c. 77, § 82; Cal. Code, Civ. Proo. § 1388; 28 Cal. 182; 36 Cal. 489; Ga. Code, § 2505; 111. Ann. Sts. o. 3, §§ 7, 23; Ind. Kev. Sts. 2242; N. Y. Code, Civ. Proc. 2667. Cf. Sutton v. Weeks, 5 Redf. 353. « Conn. Laws, 1885, c. 110, § 22; Iowa Rev. Code, § 2362; Me. Rev. Sts. c. 64, §§ 9, 19; Md. Rev. Code, art. 50, §§ 49, 76; Mich. Ann. Sts. §§ 5835, 5850 ; N. J. Rev., Orphans' Court, § 43; Pa. Bright. Purd. Dig., Deced. Est., §§ 21, 22; Vt. Rev. Laws, § 2066. » Peck V. Peck, 3 Dem. 548. * Lewis's Est., 28 N. J. Eq. 234. ^ Sutton V, Weeks, supra. 156 LAW OP EXECUTORS AND ADMINISTBATORS. power to compromise it or to collect it after judgment. These latter powers are granted when they become necessary, upon further security being given in double the amount to be ob- tained by the compromise or by the judgment.^ § 279. Bond covers Real Estate. — Although the bond is primarily meant to cover only the personal property, yet as sometimes the administration of an estate or the execution of a will involves selling real estate, it is always necessary that the probate court should see that sufficient security is given to cover the proceeds of the sale, either by the original probate bond or by additional security taken at the time of the sale.^ If the will includes real estate subject to a power of sale, the bond should be large enough to cover the proceeds of the real estate as well as the personal estate ; ^ but no bond is necessary when real estate is sold simply to pay debts, if such sale is already covered by the general administration bond, as it is in many States,* unless the court of probate thinks the security is insufficient.* § 280. Obligee of Bond. — The probate bond is generally made out, as has been already said, in favor either of the judge of probate,^ or the State, or some public officer of the State.7 § 281. Sureties on Bond. — The bond is taken from both an executor and administrator, with two sureties, who are 1 Malloy, Matter of, 1 Dem. 421. '^ See statutes, supra, § 261; Mass. Pub. Sts. c. 143, § 4; Kobinson v. Millard, 133 Mass. 236. » Holmes v. Cock, 2 Barb. Ch. 428. * Tenney v. Poor, 14 Gray, 500. See Fay v. Valentine, 8 Pick. 526. 6 Mass. Pub. Sts. c. 143, § 4. » Ga. Code, 2505; Me. Rev. Sts. c. 64, §§ 9, 19; Mich, Ann. Sts. §§ 5835, 5850; N. J. Rev. , Orphans' Court, § 48; R. I. Pub. Sts. c. 184, § 10; Vt. Rev. Laws, § 2066. ' Cal. Code, Civ. Proc. § 1388; Conn. Laws, 1885, c. 110, § 22; 111. Ann. Sts. c. 3, §§ 7, 23; Ind. Rev. Sts. § 2242; Md. Rev. Code, art. 50, §§ 49, 76; N. Y. Code, Civ. Proc. § 2667; Pa. Bright. Purd. Dig., Deced. Est, §22. ADMINISTRATION BONDS. 157 the vouchers for the good conduct of the administrator.^ And the bond must be signed by the executor or adminis- trator, otherwise it will not hold the sureties.^ It may, in Massachussets, be executed by the sureties while the penal sum is still blank ; and although the principal may have informed them that the sum is to be a certain amount, and he afterwards inserts a larger amount, by direction of the judge of probate, yet the bond holds the sureties.^ § 282. Exemption from Giving Bond or Sureties on Bond. — If the testator or all parties interested in the estate, other than creditors, expressly so request, the executor may be ex- empted from giving a bond or sureties on his bond. Such exemption is generally provided for by statute. Thus, in Massachusetts it is provided by statute that an executor may be exempted from giving any surety on his bond, when the testator has ordered such exemption or that no bond should be taken, or when all persons interested in the estate who are of full age and legal capacity, other than creditors, cer- tify to the court their assent ; but all creditors and guardians of minors should first be notified and given a hearing, and the court may subsequently require a bond with sureties if it thinks such security to be necessary.* § 283. Notice may be by Publication in Paper. — The notice to creditors required by the Massachusetts statute may be by publication like all other probate notices,^ but if the bond is taken without notice to the creditors, it is invalid, so far at least that the statute of limitations against creditors' claims does not begin to run from the date when the bond is given.^ These statutes apply generally to executors only, but in Mas- 1 See statutes, supra, § 261. ^ Wood v. Washburn, 2 Pick. 24. * White V. Duggan, 140 Mass. 18. As to alteration of bond discharg- ing surety, see Howe v. Peabody, 2 Gray, 556. * Mass. Pub. Sts. c. 129, § 8; Cal. Code, Civ. Proo. § 1396; HI. Ann. Sts. c. 3, § 8; R. I. Pub. Sts. c. 184, § 14. s Wells V. Child, 12 Allen, 330. * Abercrombie v. Sheldon, 8 Allen, 532. 168 LAW OP EXECUTORS AND ADMINISTRATORS. sacliusetts, an administrator is by recent statute put upon the same footing as an executor, as regards exemption, when all persons interested in the estate request it.^ Moreover, the request of the testator that the executor be exempted from giving surety on his bond, does not apply to any others than the persons named, nor does it exempt the administrator ; ^ and even when the testator has requested such exemption, the court may on good cause shown require a surety, in the exercise of its general powers.^ § 284. Sureties, Qualifications of. — If two executors give joint bond without sureties, they are liable for each other's acts, in the same way as other joint executors.* The sure- ties on the bond must, as a general rule, be residents of the State in which the bond is taken ; » but if two are such residents, and are sufficient to satisfy the statute, the addi- tion of a third, who is not a resident, does not vitiate the bond in a collateral proceeding.^ The sureties need not be residents of the county,^ but they must be satisfactory to the judge of probate as to their financial ability,^ and should be worth at least the penalty of the bond over all debts in property not exempt from execution.^ In at least one State, it is held that they must be freeholders.^" § 285. Corporations as Sureties. — There have recently been formed trust companies in several States, a part of Sts. 1885, c. 274. Cf. Pub. Sts. c. 129, § 8. 2 Langley v. Harris, 23 Tex. 514; Fairfax u. Fairfax, 7 Gratt. (Va.) 36. 8 Mass. Pub. Sts. o. 129, § 8; Clarke w. Niles, 42 Miss. 460; Atwell u. Helm, 7 Bash (Ky.), 504. * Ames I). Armstrong, 106 Mass. 15. 6 Mass. Pub. Sts. c. 143, § 1; Clarke v. Chapin, 7 Allen, 425; Conn. Laws, 1885, c. 110, § 22; Ind. Rev. Sts. § 2242; Me. Rev. Sts. c. 64, §§ 9, 19; Pa. Bright. Purd. Dig., Deeed. Est., § 21. Contra, Jones ». Jones, 12 Rich. (S. C.) L, 623; Rutherford v. Clark, 4 Bush (Ky.), 27. 8 Clarke v. Chapin, 7 Allen, 425, 426. ' Barksdale v. Cobb, 16 Ga. 13. 8 Mass. Pub. Sts. c. 143, § 2 ; and see statutes, supra, § 261. « Sutton V. Weeks, 5 Redf. 353. »» Ind. Rev. Sts. § 2242. ABMINISTRATION BONDS. 159 whose business is going on probate bonds as sureties. In order to enable them to do this they must be empowered so to do by their charter, as in Massachusetts,^ and if they act as such in other States than the State of their incorporation, they must procure legislative authority for such action.^ § 286. New Bond or Sureties. — It is generally provided by statute that the probate court may, in any case where the sureties have become insufficient after the bond has been taken, or the sum of the bond is too small, require a new bond or new sureties from the executor or administrator, and if he fails to give them, he may be removed.^ § 287. Counter Security from Executor or Administrator. — In many States there is also statutory provision that if the sureties on a probate bond apprehend that the conduct of the executor or administrator is such as will make them liable on their bond, they may apply to the court to compel him to give them counter security to hold them harmless,* and the court must order such security upon such request.^ Such counter security applies as well to devastavit commit- ted, before the execution of the bond, as afterwards.^ § 288. Discharge of Surety. — A surety may be discharged by the probate, or Supreme court, if the court thinks it reasonable, and the principal must then give a new bond, or be removed from his trust. The sureties on the first bond are liable till the new one is approved by the judge,'^ and one surety may alone be discharged by decree, and the decree 1 Sts. 1884, 0. 296. « Mass. Sts. 1885, c. 241. 8 Mass. Pub. Sts. c. 143, § 5; Cal. Code, Civ. Proc. §§ 1389, 1394, 1397; Conn. Laws, 1885, c. 110, § 23; Ga. Code, § 2511; 111. Ann. Sts. c. 3, § 32; Iowa Rev. Code, § 2364; Me. Rev. Sts. c. 72, § 2; Md. Rev. Code, art. 50, § 69 ; and see statutes; supra, § 261. ^ See statutes, supra, §§ 261, 262. 6 SifEord v. Morrison, 63 Md. 14. « Brown v. Murdook, 16 Md. 521. ' Mass. Pub. Sts. o. 143, §§ 6, 7, 8; McKim v. Demmon, 130 Mass. 404; Cal. Code, Civ. Proc. § 1903; Conn. Laws, 1885, c. 110, §26; 111. Ann. Sts c. 3, § 35; Me. Rev. Sts. c. 72, § 3; Shook v. Goddard, 2 Dem. 201. 160 LAW OF EXECUTORS AND ADMINISTEATOES. will be good, though the other surety had no notice of the decree ; but by operation of law the other surety will be discharged.! § 289. Effect of Appeal on Bond. — When a bond has been once given and approved, an appeal from the allowance of a will only suspends the effect of the bond, and when the appeal is settled in favor of the will, the bond takes effect, and there is no need of any further bond.^ If a woman who is executrix or administratrix marries, her sureties have the right to be discharged from all liability except paying over, and accounting for, all money then in her hands. She must then give a new bond.^ ^ MoKim V. Demmon, 130 Mass. 404. * Dunham v. Dunham, 16 Gray, 577. 8 Maes. Pub. Sts. c. 143, § 9. DEATH, REVOCATION, RESIGNATION, REMOVAL. 161 CHAPTER XL DEATH, REVOCATION, RESIGNATION, REMOVAL. § 290. Appointment completed by Giv- § 300. Other Causes of Eemoval. ing Bond. 301. Fraud vitiates Letters. 291. Death of Executor or Adminis- 302. Effect of After-discovered "Will. trator, Effect of. 303. Effect of Void Appointment. 292. Removal of Executor or Ad- 304. Effect of Removal. ministrator. 305. Evidencejon Question of Title. 293. Proceedings for Removal by 306. Interested Parties, who are, on Citation. hearing for Eemoval. 294. Causes justifying Removal. 307. Resignation of Executor or Ad- 295. Same subject. ministrator. 296. Same subject. 308. Effect of Resignation. 297. Same subject. 309. Acceptance depends on Discre- 298. Same subject. tion of Court. 299. General Power of Removal. § 290. Appointment completed by Giving Bond. — After aa executor or administrator has been duly appointed, and has qualified for the duties of his office by giving bond, his right to act in the administration is complete, and can only be divested by his death or resignation, or by some act of the proper court, removing him from his office. § 291. Death of Executor or Administrator. — As has been already seen, upon the death of an executor leaving a will, his office in England devolved upon his executor, but in this country the. rule is abrogated generally, and it is enacted by statute that in such case an administrator de bonis non shall be appointed.^ And it has always been held that, in case of the death of an administrator, or of an executor, intestate, the office is wholly vacated, and an administrator de bonis non must be appointed. § 292. Removal of Executor or Administrator. — Two meth- ods, of terminating the authority of an executor or adminis- ^ See supra, § 114. 11 162 -LAW OP EXECUTORS AND ADMINISTEATOES. trator by act of the probate court exist ; one by appeal from the decree appointuig him, and the other by a separate pro- cess, on petition for tlie revocation of his letters, or, as it is often termed in the United States, for his removal from office. The proceedings upon appeal are of a similar nature to appeals in general, and will not be discussed more in detail at present. It may, however, be said in general that the appeal is taken to some higher court, and sometimes to more than one court in succession, according as the statute pro- vides. The appeal must be taken within a limited time from the making of the decree which is complained of, as otherwise it would hinder the progress of administration so much as to render it impracticable to settle the estate in due course of time. The party taking the appeal is required to give notice of his appeal within this time, and it then lies upon him to prosecute his appeal, and bring it to a final hearing before the court of appeal. § 293. ProeeedingB by Citation. — Proceedings for the re- moval of an executor or administrator 'by citation are in the nature of an original process, and this fact renders necessary a proper citation, as the name of the proceeding implies, of the parties interested in the estate, just as is necessary upon proceedings for the appointment of an executor or administrator.^ § 294. Causes justifying Removal. — There are many causes which justify the revocation of letters. Thus, for instance, it has already been seen that one who has a prior right to administration, which he has nOt waived or renounced, or lost by negligence, may at any time apply for the revocation of letters issued to one inferior to him in that right ; ^ but if the person having the prior right has refused to take administra- ^ See statutes, in/ra, §295; Meyer. ». Hartman, .2 Sweeny, 576; Lever- ing V. Levering, 64 Md. 410. » Cal. Code, Civ. Proo. §§ 1383, 1386; Wooten's Est., 56 Cal. 322. DEATH, REVOCATION, RESIGNATION, REMOVAL. 163 tion, and thus renounced his right, or if the right is lost by his negligence, he cannot have the letters revoked.^ § 295. Causes justifying Removal. — Various causes for the removal of executors or administrators are generally specified by statute in the various States, and include, among others, the same disabilities which would prevent the appointment of per- sons as executors or administrators.^ Some causes, however, may arise after the appointment is made ; thus a failure to give bond is recognized in many States as a sufficient cause for the removal of an executor or administrator from his office.'^ And again, in many States it is provided by statute that if the bond given loses its value, as if the sureties become insolvent, or for other cause, the probate court may order a further bond or new sureties ; and a failure to give this supplementary bond is cause for removal.* § 296. Causes justifying Removal. — So, also, a failure to make and file a proper inventory of the estate, according to the condition of the bond, is in some States a reason for removing an executor or administrator from his office ; ^ or a failure to account as to his administration, when properly cited for the purpose, or in general a failure to obey any order of the court in regard to the administration.^ 1 Keane's Est., 56 Cal. 407. '^ Levering v. Levering, 64 Md. 410- See supra, Chapter III., Incom- petency. * See statijtes, infra, n. ,4, 5, 6; ^nd Aldridge v. McClelland, 34 N. J. Eq. 237; and Chapter X., Bonds. See also Appendix of Statutes. * Ala. Code, §§ 2385, 2387; Cal. Code, Civ. Proc. §§ 1400, 1405; 111. Coth. Ann. Sts. c. 3, § 32; Iowa Rev. Code, § 2496; Me. Eev. Sts. c. 64, § 49; Md. Code, art. 50, § 68; N. J. Eev., Orphans' Court, § 126; Troy Bank v. Stanton, :116 Mass. 435. 6 Ala. Code, § 2386; Ga. Code, § 2523; Iowa Kev. Code, § 2496; N. J. Rev., Orphans' Court, § 126; Ohio Rev. Sts. § 6017; Pa. Bright. Purd. Dig., Deced. Est., §§ 249, 257. See also Appendix of Statutes. e Ala. Code, § 2386; Ga. Code, § 2511; Iowa Rev. Code, § 2496; Me. Rev. Sts. c. 64, § 21; Md.Code, art. 50, §212; Biddison v. Moseley, 57 Md. 89; Mich. Ann. Sts. §§ 5842, 5858; Mass. Pub. Sts. c. 132, § 14; N.J. Rev., Orphans' Court, § 126; Ohio Rev. Sts. § 6017; R. I. Pub. 164 LAW OF EXECUTORS AND ADMINISTRATOKS. § 29Y. Causes justifying Removal. — Generally speaking, as has been said, the same disabilities which would prevent the appointment of an executor or administrator to the office, and which have been previously enumerated,^ will prove sufficient reason for his removal, if occurring after his appointment.^ Thus weakness of mind, or insanity, is a sufficient cause for removal ; ^ and in some States, habitual intemperance or gross drunkenness.* So is continued sickness, disqualifying him for the duties of the office.^ And one who is con- victed of an infamous crime is in some States made liable to removal.^ § 298. Causes justifying Removal. — Insolvency alone, if it does not give ground for apprehending waste or loss to the estate, has been held in New Jersey not to be sufficient cause for revoking administration.' But the opposite is held in Pennsylvania,^ and is probably the better rule, as in case of appointment.® Removal from the State is in some States a Sts. c. 184, § 24; Vt. Rev. Laws, § 2074; Pa. Bright. Purd. Dig., Deced. Est., §§ 249, 257. 1 See supra, Chapter III., Incompetency. 2 N. Y. Code, Civ. Proc. § 2685; Cal. Code, Civ. Proc. § 1436; Conn. Laws, 1885, c. 110, § 28. 8 Ala. Code, § 2386; III. Coth. Ann. Sts. c. 3, § 30; Iowa Rev. Code, § 2496; Me. Rev. Sts. c. 64, § 21; Mass. Pub. Sts. c. 132, § 14; Mieh. Ann. Sts. §§ 5843, 5858; N. H. Gen. Laws, c. 195, § 10; N. Y. Civ. Code, § 2685; Ohio Rev. Sts. § 6017; Pa. Bright. Purd. Dig., Deced. Est., § 253; R. I. Pub. Sts. c. 184, § 24; Vt. Rev. Laws, § 2074; and see supra, § 85. 4 Ala. Code, § 2386; 111. Coth. Ann. Sts. c. 3, § 30; ST. Y. Civ. Code, § 2685; Pa. Bright. Purd. Dig., Deced. Est., § 253; Cady, Matter of, 36 Hun, 122; and see supra, § 88. 6 Ala. Code, § 2386; N. H. Gen. Laws, c. 195, § 10; Babbitt v. Bab- bitt, 26 N. J. Eq. 54. ^ 111. Coth. Ann. Sts. c. 3, § 30. See statutes in regard to appointment, supra, § 83. ' Schanck v. Schanck, 7 N. J. Eq. 151. « Edward's Est., 5 Week. N. Cas. 431; Greentree's Est., 3 Week. N. Cas. 519. ' See supra, § 91. DEATH, REVOCATION, RESIGNATION, REMOVAL. 165 sufficient cause for removal from office, as non-residence is a disqualification for appointment.^ § 299. General Poorer of Removal, instead of, or in addition to, these Enumerated Causes. — In many States, a broad discre- tion is given to the judge of probate to remove any executor or administrator whenever he becomes unsuitable to perform the duties of the office, either because his character or rela- tions, business or social, have become such as to render it improbable that he can fulfil the duties of his office as they should be performed.^ § 300. other Causes of Removal. — Wasting or embezzling the estate, or committing a fraud on the estate,* or neglecting the duties of the office,* is always cause for removal. Thus if an executor who is empowered under the will to sell real estate in his discretion, neglects so to do, or acts in bad faith, his conduct is a devastavit such as would be ground for his removal.^ So, if he convey part of the estate to his sureties to indemnify them for liability on his probate bond.^ In a recent case in Massachusetts, an administratrix was removed for not joining in a suit for the redemption of a 1 (Of an administrator only), Ala. Code, § 2386; Cal. Civ. Proc. § 1436; 111. Coth. Ann. Sts. c. 3 § 31; Mich. Ann. Sts. §§ 5842, 5858; (absence) N. H. Gen. Laws, c. 195, § 10; N. J. Rev., Orphans' Court, § 127; N. Y. Civ. Code, §2685; Sohn's Est, IN. Y. Civ. Proc. 373; Pa. Bright. Dig., Deced. Est., § 254; Vt. Rev. Laws, § 2074. See also supra, § 92, et seq. " Mass. Pub. Sts. c. 132, § 14; Stearns v. Fiske, 18 Pick. 24; Winship V. Bass, 12 Mass. 198; Kellberg's App., 86 Pa. St. 133; Ga. Code, § 2511; Iowa Kev. Code, § 2496; Me. Rev. Sts. c. 64, § 21; Mich. Ann. Sts. §§ 5842, 5858; Ohio Rev. Sts. § 6017; R. I. Pub. Sts. c. 184, § 24; Vt. Rev. Laws, § 2074. = Cal. Code, Civ. Proc. § 1436; Deckw. Gherke, 6 Cal. 667; Conn. Laws, 1885, c. 110, § 28; Ga. Code, § 2511; 111. Coth. Ann. Sts. c. 3, § 30; Iowa Code, § 2496; Me. Rev. Sts. o. 64, §21; N. H. Gen. Laws, c. 195, § 10; N. Y. Civ. Code, §2685; Pa. Bright. Purd. Dig., Deced. Est., §§249, 257. * See statutes, supra ; Cox t'. Chalk, 57 Md. 569 ; N. Y. Civ. Code, §§ 2807, 2817. 5 Haight V. Brisbin, 100 N. Y. 219; s. 0. 96 N. Y. 132. ' Fleet V. Simmons, 3 Dem. 542. 166 LAW OP EXECUTORS AND ADMINISTEATOBS. mortgage. The facts were that the estate had been settled as insolvent, the administratrix not knowing of the bond of defeasance upon which the alleged right of redemption existed, and which was not discovered till after she had thus settled the estate. The creditors claimed that this right of redemp- tion constituted new assets which might be distributed among the creditors, and as the administratrix refused to join in the suit to redeem this right, they asked for her removal^ which was granted.^ Proceedings for the removal of an executor or administrator for apprehended waste are often framed alternatively, that is, that he shall be removed if he does not give sufficient security against such waste, or that he shall give security against waste upon penalty of being removed if he does not.^ § 301. Fraud vitiates Letters. — Fraud always vitiates a grant of letters ; and in any State, either by statute or by com- mon law, letters will be revoked if it is proved that they were obtained on any false pretence or by fraud ;^ but the false pretence must have been made to the court whose action was desired, and not to a party to the proceedings merely to in^- fluence his action.* § 302. Effect of After-discovered Will. — If, after a will is proved and an executor appointed, a later will, or after administration has been granted on an estate, any will is discovered and- presented to the probate court, the letters primarily granted will be revoked.*" 1 Glines v. Weeks, 137 Mass. 547. ^ Carpenter ». Gray, 32 N. J. Eq. 692. See supra, Chapter X., Bonds, § 286. ' 111. Coth. Ann. Sts. c. 3, § 26; Wemse v. Hall, 101 lU. 423; N. Y. Civ. Code, § 2685 ; West, Matter of, 40 Hun, 291 ; Proctor v. Wanmaker, 1 Barb. Ch. 302 ; Worthington v. Gittings, 56 Md. 549. ■> Corn V. Corn, 4 Dem. 397. 6 Ark. Dig. Sts. § 30; Ala. Code, §§ 2414, 2415; Cal. Code, Civ. Proc. § 1423; 111. Coth. Ann. Sts. c. 3, §§ 28, 29; Md. Code, art. 50, § 48; Mich. Ann. Sts. § 5862; N. Y. Code, Civ. Proc. § 2684; Ohio Bev. Sts. § 6019; Rebhan v. Mueller, 114 111. 343. DEATH, REVOCATIOIT, RESIGNATION, REMOVAL. 167 The question arises whether, when administration is granted as upon an intestate estate, and it. afterwards appears that a will was left by the deceased, the grant of administration is ipso facto made void by the discovery of the will, or whether it is only voidable. Tlie rule of the English probate courts seems to have been that any grant which is in derogation of the right, of an executor is void, and therefore that the admin- istration is made void even as to previous acts of administrar tion by the appointment of the executor. Mr. Williams says on this point,. " It may perhaps be laid down as a general test whether an administration is void or voidable, that when the grant is in derogation of the right of an executor, it is void, but where the administration, is granted by the proper juris- diction, and is only in derogation of the right of the next of kin or residuary legatee, it is merely voidable." ^ § 303. Effect of: Void Appointment. — The difference in result upon the acts of the administratoi! is apparent, for if his ap- pointment is void his acts- are without authority ; it is, how- ever, often provided by statute, as in Massachusetts, that when an executor or administrator is removed, or when letters of administration are revoked, all previous sales, whether of real or personal estate, lawfully made by the executor or adminis- trator, and with good faith on the part of the purchaser, and all other lawful acts done by such executor or administrator, remain valid and effectnaL^ § 304. Effect of Removal. — The removal of an executor is only made after notice to him and a hearing on the question ; ^ and it is his duty when so removed to pay over all the estate to the successor appointed by the probate court, and the court may enforce this payment by order, and attachment for con- tempt if the order is. not obeyed.* The application for revo- 1 Wms. Ex'rs, 590. 2 Ynh. Sts. c. 132, § 15. * See statutes, supra ; Levering v. Levering-, 6i Md. 410. * See statutes, supra, and Finney v. Barnes, 17 Conn. 426, 428; Bid- dison V. Story, 57 Md. 96; Aldridge v. McClelland, 34 N. J. Eq. 237; Tome's App., 50 Pa. St. 285; Mass. Pub. Sts. c. 156, §§ 15, 31. 168 LAW OP EXECUTORS AND ADMINISTRATORS. cation can only be made by some one interested in the estate, but may be made by an attorney-at-law for such person, and no preliminary proof of interest is required,^ unless the fact is disputed ; but the respondent in such case cannot by merely denying the interest preclude a hearing upon the question of his removal,^ and if the whole evidence at the hearing upon the application for removal shows that the applicant has no interest, the application may be dismissed.^ § 305. Evidence on Question of Interest. — It has been said that, if the interest is sworn to by the party making the ap- plication, and is prima facie valid and legal, the court will not try the question of right.* But the better practice seems to be to allow the parties to give evidence at the hearing both upon the interest and on the general question of removal, and for the court to decide whether the applicant has made out a rea- sonable case of interest ; and if this appears, the court will allow him to prevail if he makes out a proper case for re- moval, for in this, as in other cases involving a similar point,^ the probate court does not pretend to try titles to property, but need only be satisfied that the title is probable.® § 306. Interested Parties, who are. — One who is a debtor to the estate is not one interested in it ; '^ but a legatee and exe- cutor under a will which has been declared void, has, pending an appeal from the decree, such interest as will allow him to apply for the removal of an administrator appointed in the estate.^ § 307. Resignation of Executor or Administrator. — As to a resignation of the office of executor or administrator, it is 1 Biddison v. Moseley, 57 Md. 95. " Susz v. Forst, 4 Dem. 346. « Woodrufi V. Woodruff, 3 Dem. 505. < Cotterell v. Brock, 1 Bradf . 148 ; Merchant's Will, 1 Tuck. 17. ^ See supra, § 68. • Woodruff V. Woodruff, 3 Dem. 505; Brackett v. Williams, 110 Mass. 550. ' Drexel v. Berney, 1 Dem. 163. 8 Newhouse v. Gale, 1 Kedf. 217. DEATH, EEVOCATION, RESIGNATION, REMOVAL. 169 apparent that it is not in every case that the incumbent should be allowed to resign, since in many cases, he might do so to his own advantage and the detriment of the estate. It has been held in England, that such an officer, after ap- pointment, could not be allowed to withdraw, even before administration had been actually entered upon ; ^ but probably in the United States, if he petitions to be discharged, the court viewing him as a trustee might, upon notice to all parties interested or who might become interested in the estate, and their consent, allow him to be discharged under the ordinary law of trustees.^ In the United States, however, there is generally provision made by statute for a resignation by such person of the office to which he had been appointed, and if the circumstances of the case show that he can do so without detriment to the estate, he is allowed to resign.^ And after his appointment has been revoked he cannot be reap- pointed, even though he is executor named in the will.* § 308. Effect of Resignation. — A resignation, when it has been duly accepted by the probate court, has the effect of a revocation of letters of the person who resigns, and either leaves the office vacant or throws the duties upon the other incumbents, if there are any such ; ^ nor can he afterwards retract his resignation and be I'eappointed ; ^ but the person who has resigned and his sureties remain liable for the assets in ^ Goods of Heslop, 5 Notes of Cas. 2. " Van Wyok, Matter of, 1 Barb. Ch. 567. Cf. Thayer v. Homer, 11 Met. 104. « Ala. Code, § 2408; Cal. Code. Civ. Proo. § 1427; Conn. Laws, 1885, c. 110, § 28 ; m. Coth. Ann. Sts. c. 3, § 40; United States KoUing Stock Co. V. Potter, 48 Iowa, 56; Me. Rev. Sts. c. 64, § 21; Md. Code, art. 50, § 96; Mass. Pub. Sts, o. 132, § 16; Mich. Ann. Sts. § 5858; K. H. Gen. Laws, c. 195, § 11; N. J. Kev., Orphans' Court, 125; N. Y. Civ. Code, § 2689; Ohio Rev. Sts. § 6015; R. I. Pub. Sts. c. 184, § 25; Pa. Bright. Purd. Dig., Deced. Est., § 247; and see Appendix of Statutes. * Bearing, Matter of, 4 Dem. 81. « Ala. Code, §§ 2412, 2413; Marsh v. People, 15 HI. 284. » Suarez, Matter of, 3 Dem. 164. 170 LAW OP EXECUTORS AND ADMINISTBATOES. his possessioa whibh he' does- not deliver over to the^ proper persons,! and he must account for the assets fully, although his resignation was accepted pending an accounting.'^ § 309. Acceptance depeads- on Discrelaon of Coixit. — The right of resignation is one given by statute, and should be allowed only in cases where the statute permits it, although in most cases the statute leaves the: acceptance of the res- ignation largely in the discretion of the probate judge ; ^ but the wrongful acceptance of the resignation by the court,, even when a resignation is not authorized by statute, is an irregularity only, and does not, in. a collateral proceeding,, make the appointment of a new administrator void.* As the court is generally bound to see that the acceptance of such resignation is not prejudicial to the estate, it is generally provided either by statute or by the orders or practice of the' court, that notice shall be given to all persons interested in. the; estate. If such notice is required, and is not given, and no reason is shown why it should be dispensed with,, the accept- ance of the resignation is irregular, and will be revoked on 1 Ala. Code, § 2409. ^ Staple v. EntreMn, 44 Ohio St. 637. 8 Haynes v. Meek, 10 Cal. 110; Flinn o. Chase, 4 Den. 85; Van 'Wyck, Matter of, 1 Barb. Ch. 568. 4 Haynes v. Meek, 20 Cal. 310. 6 Vail V. Male, 87 N. J. Eq. 521. DUXIDS OF THE EXECUTOR OR ADMINISTRATOR. 171 CHAPTER XII. DUTIES OP THE EXECUTOR OR ADMINISTRATOR. § 310. Of Making the Inventory. § 318. As to Choses in Action. 311. Inventory generally required by 319. As to Real Estate. Law. 320. Appraisement of Property. 312. List of Property and Appraise* 321. Effect of Failure to file Inven- meiit. tory; 313. Time of filing Inventory. 322. When no Property exists'. 314; Must be filed by all Executors 323. Supplementary Inventory. and Administrators. 324. Impeaching Inventory. 315. Inventory should include all 325; Giving Notice of Appointtoenti Personal Property. 326. Notice as Protection to Executor 316. Should be made as of the Time or Administrator. of the Appointment of Execu- 327. Notice aS Protection to the Es- ter or Administrator. tate. 317. As to Property out of the State. § 310. Of Making the Inventory. — It is the duty of an ex- ecutor or administrator, upon entering upon the performance of his duties, to cause to be made out an inventory or sched- ule of the estate of the deceased. This inventory was pro- vided for in England, as early as' the statute of Henry VIII.^ It was then tO' be made by the executor or' administrator, in the presence and by the direction' of two of the creditors of the deceased ; or in default of these, by two' of the next of kin ; or in default of these, by ail^ two honest persons. This inventory was to be sworn to in duplicate by the executor or administrator, and one part deposited in the probate court, the other kept by the executOr or administrator. And the performance of this duty within a certain time was made a part of the condition of the botid,^ as it is in many of the United States at the present time.^ 1 Sts. 21 Hen. VIII. c. 5, § 4. =22 & 23 Gar. II. c. 10, § 1. « See sx^pra, Cha|)ter X., Bondlj, § 270. 172 LAW OF EXECUTORS AND ADMINISTRATORS. By the modern practice in England, however, an inventory is not generally required. It is only when one is called for by some person interested in the estate, that the court will order one to be made and filed.-' But the inventory may be called for by one having a prima facie interest in the estate, although his interest is contested, and although it is only probable or contingent.^ § 311. Inventory generally required by Law. — In the United States, the making and filing of the inventory within a speci- fied time is generally required in every instance by law, but in practice it is often omitted, unless specially called for. Any one interested in the estate may require it, even though his interest is contested. Thus one who professes to be a creditor and makes prima facie proof of his debt, may re- quire an inventory, although his debt is contested.^ So the filing of the inventory may be required by one of the next of kin, although the executor alleges that the demandant has assigned his interest, if the next of kin replies that the assign- ment was obtained by fraud.* § 312. List of Property and Appraisement. — The main fea- tures of the statutes requiring the inventory are generally similar and provide for a detailed list of the personal estate, generally sworn to by the executor or administrator, and filed within a certain limited time, varying in the different States, and also in the same document an appraisal or estimate of the value of the inventoried property by disinterested appraisers.^ In Maryland, however, the statutory provisions, as will be seen 1 1 Phill. 240; Toller, 250. 2 Myddleton v. Rushout, 1 Phill. 244; Reeves v. Freeling, 2 Phill. 57. » Pendle v. Waite, 3 Dem. 261 ; Creamer v. Waller, 2 Dem. 351 ; For- syth V. Burr, 37 Barb. 540 ; Thomson v. Thomson, 1 Bradf . Sur. 24. * Schmidt o. Heusner, 4 Dem. 275. 6 Mass. Pub. Sts. c. 132, § 6; Com. v. Bryan, 8 Serg. & R. 128; Bourne V. Stevenson, 58 Me. 499; Potter v. Titcomb, 2 Fairf. 167; Me. Rev. Sts. c. 64, §§ 43-46; N. Y. Rev. Sts. Pt. II. ch. 6, tit. III. art. 1; Pa. Bright. Purd. Dig., Deced. Est., §§ 53-55; N. J. Rev., Orphans' Court, § 50. DUTIES OP THE EXECUTOR OR ADMINISTRATOR. 173 later, are somewhat peculiar, in regard to what should be included in the inventory .^ § 313. Time of filing Inventory. — The time within which the inventory is filed is generally of slight importance. In England, where no inventory is required unless called for, although there is no limit of time fixed beyond which an in- ventory may not be called for, still the courts will take into account the lapse of time, if it has been so great as to make it a hardship upon the executor or administrator to produce an inventory, and no sufficient excuse is given for not previously calling for one. Thus a lapse of forty-five years, or even of eighteen years, has been held to be too great to permit the calling for an inventory .^ And probably the same considera- tions would be entertained in this country in those States where the filing of an inventory is not made a statutory duty ^ of the executor or administrator. If the inventory is not filed within the time specified, the omission is a nominal breach of the bond, that may be cured by filing a proper inventory when ordered by the court.^ § 814, Must be filed by all Executors and Administra- tors. — By the English practice, it is not only the executor or administrator who may be called upon for an inventory. Any one into whose hands any part of the estate of the de- ceased was proved presumptively to have come without due process of administration, might be called upon for an inven- tory and account of the same.* In the United States, how- ever, the statutes almost universally call for inventories only from those duly appointed as executors or administrators,^ 1 Md. Rev. Code, art. 50, §§ 124-138; see Handy v. Collins, 60 Md. 238, and infra, § 318. 2 Ritchie v. Rees, 1 Add. 144 ; Scurrah v. Scurrah, 2 Curt. 919. * McKim V. Harwood, 129 Mass. 75; and see infra, § 321. * Ritchie v. Rees, 1 Add. 158; see Holland v. Prior, 1 My. & K. 245, 246, 247. s Me. Rev. Sts. o. 64, §§ 43-46; 3 N. Y. Rev. Sts. p. 2293; see the statutes of the various States passim. 174 LAW OF EXECUTOES AND ADMINISTRATORS. But the statutes (both in the United States and in England include all kinds of executors and admijiistrators, and the inventory must berfiled by any one who takes out administra- tion ; for example, an administrator durante minoritate^ or pendente lite^ or de bonis non? There is, however, an exception made by statute in certain cases where the executor or administrator is entitled to all, or the greater part of the estate. Thus, in Massachusetts, an executor who is also residuary legatee and gives bond to pay debts and legacies is by statute excused from filing an inven- tory.* So in New Jersey an executor or administrator cum testamento annexo who is entitled to all the personal estate after payment of debts and specific legacies, need not file an inventory, if he files in court in a limited time full receipts for the specific bequests, unless some one petitions that he be compelled to file an inventory.^ § 315. Inventory should include all Personal -Property. — The inventory should contain a full, true, and perfect description and estimate of all the chattels, real and personal, in posses- sion and action to which the executor or administrator is en- titled in that character, and which come to his. possession or knowledge.^ The question, what property should be included in the inventory, involves the question what. property is assets of the estate, and will be more fully considered in treating of 1 Taylor «. Newton, 1 Cas. temp. Lee, 15. ^ Brotherton v. Hellier, 2 Cas. temp. Lee, 131. • Wilson V. Keeler, 2 Chip., 16. * Mass. Pub. Sts. c. 132, § 5 ; Jones v. Richardson, 5 Met. 247; Holden V. Fletcher, 6 Cush. 235; Alger v. Colwell, 2 Gray, 404; Colwell v. Alger, 5 Gray, 67; Stebbins v. Smith, 4 Pick. 97. 6 N. J. Rev. Supp., Orphans' Court, 9. « Mass. Pub. Sts. c. 132, § 6; Moore «,; Holmes, 32 Conn. 553; Van Meter v. Jones, 2 Green Gh. 520; Turner «. Ellis, 24 Miss. 173; Griswold V. Chandler, 5 N. H. 492; Potter v. Titcomb, 1 ,Fairf. 53; Bourne v. Stevenson, 58 Me. 499; Williams v. Morehouse, 9 Conn. 470; McNeel's Est., 68 Pa. St. 412; Speakman'sApp., 71 Pa. St. 25; Matthews v. Turner, 64 Md. 121. DUTIES OP THE EXECUTOR OR ADMINISTRATOR. 175 the assets. It is evident, however, that property which did not belong to the deceased at the time of his death should not be included in the inventory; but there Should be a de- tailed and specific statement of all the estate.^ § 316. Should be made as of the Time of the Appointment of Executor or Administrator. - — The inventory is supposed to re- late to the time of the appointment, of the executor or adminis- trator, and need not properly include anything which accrues tothe estate of the deceased after that time, for instance, the subsequent profits of the business of the deceased.^ § 317. As to Property out of the State.- — There has been some discussion., whether the inventory should include prop- erty outside of the country where the executor is appointed. It is held in iBngland that the inventory need not contain effects out of 'the country in which the executor or adminis- trator is appoidted.^ But in the United States it has been held that the inventory should properly include assets -in another State, unless they are in a State where administra- tion has already been granted, the plan being to have all the assets of the estate covered by some regular administration.* § 318. As to Choses in Action. — ^ In general, all the debts due to the deceased, closes m action smd other species of claims or demands, including notes and accounts belonging to the estate, should be inventoried or .appraised.^ And even though the notes should be in the possession of another, the executor or administrator must inventory them if they 1 Washburn v. Hale, 10 Pick. 429; Kichardson v. Merrill, 32 Vt. 27; Vanmeter v. Jones, 3 N. J."Eq. 520; Pursel v. Pursel, 14 N. J. Eq. 514. a Pitt V. Woodham, 1 Hagg. 250; McCall v. Peachy, 3 Munf. 288; Snodgraas v. Andrews, 30 Miss. -472. * Kaymond v. Von Watteville, 2 Cas. temp. Lee, 551. * Butler, Matter of, 38 N. Y. 397; -Sherman w..Page,-85 N. Y. 128; Bright. Purd. Dig. (Pa.), Deced. Est., §53; Normand t>. Grognard, 17 N. J. Eq. 425; Conn. Gen. Sts. § 580. 6 Pool's Succ, 14 La. Ann. 677; Black «. Whitall, 9 N. J. Eq. 572; AVilliams v. Morehouse, 9 Conn. 470; Bourne v, Stevenson, 58 Me. 499. . 176 LAW OF EXECUTORS AND ADMINISTRATORS. have come to his knowledge.^ In Maryland, by a peculiarity of the statute, mere debts due the deceased are not included in the inventory, but in a separate list, upon which the debts are marked as sperate or collectible and desperate, and the executor or administrator is only charged with those marked sperate? It is always a good practice, and in some States is enacted by statute, that those debts which the appraisers consider des- perate and uncollectible should be inventoried as such. The executor or administrator should not then be held liable for them, except upon proof that he might have collected them.^ If not so returned, they will be presumed to be collected in full, unless the contrary appears ; but this presumption may be rebutted by showing that they were in fact desperate.* § 319. As to Real Estate. — In many of the United States, statutes provide that real estate must also be included in the inventory. This is because the power of sale which the ex- ecutor or administrator has over such estate to pay debts ren- ders it proper that it should be included in the inventory.^ At common law, of course the inventory did not include the real estate,^ and the insertion of this in the inventory is wholly a matter of statute. The inventory should also include real or personal estate which has been to the knowledge of the execu- tor or administrator fraudulently conveyed by the deceased, to evade his creditors ; but if the executor or administrator does know of the fraud, he cannot be held liable for not inserting in the inventory such estate.^ § 320. Appraisement of Property. — As has been already 1 Potter V. Titcomb, 1 Fairf. 53; Bourne v. Stevenson, 58 Me. 499. 2 Handy v. Collins, 60 Md. 238. « Finch V. Ragland, 2 Dev. Eq. 137; Millenovicb, Matter of, 5 Nev. 161; Reiff's App., 2 Pa. St. 257. * Graham v. Davidson, 2 Dev. & Bat. Eq. 155 ; Schaltz v. Pulver, 11 Wend. 361. 6 Mass. Pub. Sts. c. 132, § 5. « Henshaw v. Blood, 1 Mass. 35. ' Andrews v. Tucker, 7 Pick. 250; Minor ti. Mead, 3 Conn. 289; Bootit V. Patrick, 8 Conn. 106; Andruss ». Doolittle, 11 Conn. 283. DUTIES OF THE EXECUTOR OE ADMINISTRATOR. 177 said, the inventory contains also a valuation of the articles described in it by two or more disinterested persons, who act as appraisers generally by order of the court.^ This valua- tion is only an approximation to the real value, and does not conclude anybody ;2 although, in the probate court, it is prima facie evidence of the value of the goods appraised.* In New York the subject of how far an inventory may be impeached is regulated by statute.* § 321. Effect of Failure to file Inventory. — A failure to file an inventory within the time specified is a breach of the administration bond,^ but may generally be cured by fil- ing such inventory when ordered by the court, especially if the party who fails to file the inventory is the only person interested in the disposition of the estate.® But if on being cited to file an inventory any delay or backwardness occurs, the courts view such actions with suspicion, and will con- demn the party in costs or allow proceedings upon the probate bond.^ § 322. "When no Property Exists. — If no property belong- ing to the estate of the deceased comes into the hands or knowledge of the executor or administrator, of course no in- ventory is required,* but if property comes to the adminis- trator, the fact that he has disposed of it all does not release him from the duty of accounting.^ » Mass. Pub. Sts. c. 132, § 6; Me. Rev. Sts. c. 64, § 44; 3 N. Y. Rev. Sts. p. 2293; Bright. Purd. Dig., Deced. Est., §§ 62, 63; N. J. Rev., Orplians' Court, §§ 50, 51; Md. Rev. Code, art. 50, § 126; and see the statutes of the States passim on this point. !" Willoughby v. McCluer, 2 Wend. 609; Adams v. Adams, 22 Vt. 50; Ames V. Downing, 1 Bradf. 321. » Hasbrouok v. Hasbrouck, 27 N. Y. 182. * Thome v. Underhill, 1 Dem. 306. * Boston V. Boylston, 4 Mass. 318; McKim v. Harwood, 129 Mass. 75; Com. V. Bryan, 8 Serg. & R. 128; Bourne v. Stevenson, 58 Me. 499. « McEim V. Harwood, supra. ' Bourne v. Stevenson, supra; Hartii. TenEyck, 2 Johns. Ch. 62. 8 Walker v. Hall. 1 Pick. 20. » Silverbrandt ». Widmayer, 2 Dem. 263. 12 178 LAW OP EXECUTORS AND ADMINISTRATORS. § 323. Supplementary Inventory. — In Massachusetts only one inventory is required, and if property comes to the knowledge or possession of the executor afterwards, he ac- counts for it in his annual accounts, and not in a second inventory .1 But in many of the States if, after filing the first inventory, other goods come to his knowledge or posses- sion, an additional inventory may be filed by the executor or administrator including such later property.^ So it is also held, that if an incorrect inventory is rendered, it may in some States be supplanted by a second which corrects the errors of the first.^ § 324. Impeaching Inventory. — The question has arisen, whether an inventory may be impeached by those interested in the estate who think it does not include the whole estate. The practice of the probate court, in England, has always been to entertain objections to an inventory on the ground that it does not contain a full statement of the estate.* In New York, however, it has been held with some regularity, that if the executor or administrator denies that the goods which are claimed to be wrongfully omitted from the inven- tory belong to the estate, he cannot be required to inventory them; but when he comes to his accounting his inventory may be surcharged or falsified.^ In other of the United States, the practice seems to allow an inventory to be cor- rected upon application.® § 825. Giving Notice of Appointment. — In many States 1 Hooker v. Bancroft, 4 Pick. 50, 53. = Com. V. Bryan, 8 Serg. & R. 128; Md. Rev. Code, art. 50, § 133; 3 N. Y. Rev. Sts. p. 2297; Moore ». Holmes, 32 Conn. 553; Iowa Rev. 1860, 411, § 2365; Me. Rev. Sts. c. 64, § 47. ' Bradford's Admrs., 1 Browne, 87. * Butler V. Butler, 2 Phill. 37; Barclay ». Marshall, 2 Phill. 188; Tel- ford V. Morison, 2 Add. 329. ^ Montgomery ii. Dunning, 2 Bradf . Sur. 220 ; Greenhough «. Green- hough, 5 Redf. 192. 8 Melizet's App., 17 Pa. St. 450. DUTIES OF THE EXECUTOR OR ADMINISTRATOR. 179 there exist statutes which require that an executor or ad- ministrator shall, within some short time after his appoint- ment, cause notice of his appointment to be publicly posted in the city or town where the deceased last dwelt, or, by order of the court, he may be required to give notice by publication in some newspaper.^ The importance of this notice relates mainly to the claims of creditors against the estate. The origin of the notice was in the Chancery Courts of England, where it was the custom, in a suit instituted by a creditor for the settle- ment of an estate, to order a notice to be issued and published in the newspapers requiring creditors to send in their claims to the executor or administrator within a certain limited time, and after the expiration of that time, the executor or administrator might distribute the estate upon the basis of such claims as were presented ; and this prac- tice has been adopted in the probate courts of that coun- try by statute, leaving, however, to any creditor who has not so presented his claim, his right to follow the assets, if he can, into the hands of those to whom they have been distributed.^ § 826. Notice as Protection to Executor or Administrator. — This provision for notice to the creditors has been adopted in two ways in the United States. The first resembles closely the English proceedings, and as it exists in New York, New Jersey, Maryland, and other States, it provides that an ex- ecutor or administrator may, by order of court, publish in the newspapers or otherwise a notice to creditors requiring them to present their claims within a certain limited time, and by this notice the executor or administrator is relieved from per- sonal liability if he distributes the assets among those who 1 Mass. Pub. Sts. c. 132, §§ 1, 2, 3, 4; Sts. 1885, c. 235; Me. Rev. Sts. c. 64, §§ 38, 39. See Appendix of Statutes. 2 Sts. 22 & 23 Vict. c. 35, § 29 ; see Clegg v. Rowland, L. R. 3 Eq. Cas. 368. 180 LAW OP EXECUTORS AND ADMINISTEATOES. have duly presented their claims, although as to undistributed assets he is still liable.^ The provision in Massachusetts on this point is that if an executor or administrator who has given public notice of hia appointment, does not within one year from the time of the appointment receive notice from creditors of demands against the estate which authorize him to declare the estate insolvent, he may without personal liability pay out the estate to other creditors ; after the expiration of that time, if the payment is made before he has actual notice of any other claim, and if he does not wholly pay out the estate, but has not enough left to answer such other claim, he may satisfy that so far as he can, and shall be discharged from further liability ; but if two or more of such other claims come to his knowledge and he has not enough assets to satisfy them, he must declare the estate insolvent.^ It will be obvious that this notice is thus intended for the protection of the executor or administrator from personal liability in distributing the estate, and he need not publish it if he does not choose.* § 327. Notice as Protection to the Estate. — There is, how- ever, a further effect of this notice in some States; namely, that upon it depends the beginning of the time limited by the special statute of limitations in regard to claims against the estates of decedents. This special statute and its connection with the notice of appointment given by executors or admin- istrators, will be considered later in discussing the actions against executors. It is sufficient here to say, that if the no- tice has been properly given, within the time limited by law, the special statute of limitations begins to run from the date of giving bond;* or if no bond is given, from the appointment;^ ' 3 N. Y. Rev. Sts. pp. 2299, 2300; N. J. Rev., Orphans' Court, 59-64; Md. Rev. Code, art. 50, § 118. See Appendix of Statutes. » Mass. Pub. Sts. o. 136, §§ 2, 3, 4. 8 Fliess V. Buckley, 90 N. Y. 292. * Mass. Pub. St. c. 136, § 9. 5 Jones V. Jones, 41 Ohio St 417 ; Delaplaine r. Smith, 38 Ohio St. 413. DUTIES OF THE EXECUTOR OR ADMINISTRATOR. 181 or if the notice is given later, by permission and order of the court, the statute will begin to run from the time of the order of the court.^ The notice of appointment must be published in the manner provided by the law, which is generally in some newspaper or by posting in some public place.^ Proof of the publication of the notice may be made by affidavit of the person giving the notice filed in the probate court,^ or by oral evidence ; and it is not even necessary that the original notification or a copy of it should be produced.* Such a notice is valid, though it describes the person giving it as administrator, when he is in reality executor.^ > Mass. Pub. Sts. o. 132, § 3. 2 Mass. Pub. Sts. c. 132, § 1; 3 N. Y. Rev. Sts. p. 2299. 8 Mass. Pub. Sts. c. 132, § 2; Me. Kev. Sts. c. 64, § 40; Md. Rev. Code, art. 50, § 119. * Green v. Gill, 8 Mass. Ill; Henry v. Estey, 13 Gray, 336. 6 Finney v. Barnes, 97 Mass. 401. 182 LAW OP EXECUTORS AND ADMINISTBATOES. CHAPTER XIII. ASSETS OP THE ESTATE. § 828. Personal Estate is Assets. 329. Interest of Executor in Real Es- tate. 330. Devise to Executor with Power to Sell. 331. Implied Power of Sale. 332. Equitable Conversion. 333. Equitable Conversion by Will. 334. Statutory Power to sell Land to pay Debts. 335. Land taken on Execution. 336. Land bought with Partnership Funds. 337. Chattels Eeal. 338. Long Leases are Freeholds, when. 339. Mortgages as Assets. 340. Statutes settling Character of Mortgage as Personalty. 341. Merger of Mortgage in Fee. 342. Equity of Redemption is Eeal Estate. 343. Interest in Remainders. 344. Personal Property as Assets, Chattels Animate. 845. Chattels Vegetable. 346. Emblements. 847. Emblements continued. 348. Title to Emblements. 349. Same Subject. 350. Chattels Inanimate. 351. Heirlooms. 352. Fixtures. 853. Comparative Rule as to Fixtures. 354. Agricultural Fixtures. 355. Choses in Action of Estate. 356. Policies of Insurance, Deposit in Banks, Patents, and Copy- rights. 357. Payments by Mutual Relief Asso- ciations. )358. Rents. 359. Dividends, Interest, Insolvency. 360. Equitable Assets. Choses in Action, Rights of Action, Contract. Rights of Action, Detinue, Re- plevin. Rights of Action, Tort. Statute Limits in Special Cases. Actions not included in Statute. Actions surviving under the Massachusetts Statute. 367. Special Statutes as to Survival. 368. Actions for Negligent Killing of Deceased. Survival of Action for negli- gently injuring a Person, so that he dies. The Right of Action in Different 361. 362. 364. 365. 366. 369. 370. 371. Actions not Surviving. 372. Actions accruing after Death of Testator or Intestate. 373. Actions of Contract accruing after Decease, 374. Rights of Husband and Wife. 375. Paraphernalia. 376. Rule in the United States. 377. Widow's Allowance. 378. Decisions in Massachusetts and Pennsylvania. 379. Right to Allowance is personal. 380. Widow's Allowance prior to all other Claims. 381. Right lost by Delay. 382. Special Allowance to Widow. 383. Wife's Separate Property. 384. Reduction to Possession by Hus- band of Wife's Choses in Ac- tion, ASSETS OP THE ESTATE. 183 § 385. Beduction to Possession by Hus- § 387. Husband Surviving, Eights of. band of Wife's Choses in Ac- 388. Statutory Changes as to Hus- tion. band and Wife's Property. 386. Effect of Proceedings at Law by 389. Partnership Property, Distribu- Husband. tion of. § 328. Personal Estate is Assets, but not Real Estate. — The principal duty of either an executor or administrator is to collect into his possession the personal estate of the deceased, to pay therewitli the debts and lawful charges against the es- tate, and to distribute the remainder to those entitled to it. The first inquiry, therefore, in regard to the duties of the ex- ecutor or administrator is what species of property belonging to the deceased he is entitled to, and what, if any, he is not ; or in other words, what are the assets of the estate. The gen- eral principle which decides all particular cases is that he is entitled to all the goods and chattels, real and personal, of the deceased.^ With the lands or other real property of the deceased, he has at common law nothing to do as a general rule, except so far as an interest is given to him by the will of the deceased.2 § 329. Interest of the Executor in the Real Estate. — But there are cases which form exceptions to this rule. For in- stance, the will of the deceased may give the executor an interest in the real estate. Thus, he may be given lands in trust for specific purposes, but the executor then becomes a trustee, and his duties as such are not within the scope of this work. One special form of a testamentary trust, 1 Coin. Dig. Biens. C. ; Co. Litt. 388 a; Matthews v. Turner, 64 Md. 109; 55 Mich. 294. 2 Swinb. Ft. VI., § 3, pi. 5 ; Phelps v. Funkhauser, 39 HI. 402 ; Hathaway V. Valentine, 14 Mass. 501; Almy v. Crapo, 100 Mass. 218, 220, 221; Vance v. Fisher, 10 Humph. 211; Comparet v. Randall, 4 Ind. 55; Hard- ing ». Le Moyne, 114 111. 65; Griffith v. Beecher, 10 Barb. 432; Bridge- water V. Brookfield, 3 Cow. 299; Hillman v. Stevens, 16 N. Y. 278; Ticknor v. Harris, 14 N. H. 272; Bergin v. McFarland, 26 N. H. 237; McFarland v. Stone, 17 Vt. 165; Crocker v. Smith, 32 Me. 244; Gladson V. Whitney, 9 Iowa, 267 ; Mowe v. Stevens, 61 Me. 594 ; Haslage v. Eragh, 25 Pa. St. 97. 184 LAW OP EZECUTORS AND ADMINISTRATORS. however, may be mentioned briefly ; namely, when land is devised to executors for the payment of debts or until the debts are paid. In such case, in England, by recent statute, the executor takes the fee simple of the land, unless it is defi- nitely expressed to be for a less estate.^ Previous to this statute, it was held that he took only a chattel interest ; that is, an estate which lasted until the debts were paid out of the rents and profits of the land.^ § 330. Devise to Executor with Power to Sell. — This form of trust has given rise to much discussion. The question often arises, whether, under the words of the will, the ex- ecutor holds the land in trust to sell, or whether he has merely a power to sell the land. The importance of this dis- tinction is obvious, since in the one case the title to the land vests in the executor, while in the other it vests in the heirs, subject to be divested by the execution of the power by the executor. It is said to be now settled, that if the land is de- vised to the executor to sell, or devised subject to the debts of the testator, this passes the interest in the land to the ex- ecutor ; but a direction that the executors shall sell the land gives them only a power of sale, and no interest in the land.^ But in Maine it is held that an authority to sell all the real estate, and make good and sufficient deeds thereof, and to distribute the proceeds to the residuary legatees, vests the title to the land in the executor.* § 331. Implied Power of Sale. — If in such case, the ex- ecutor or administrator does not take the title to the lands, he has only a power of sale in them. This power to sell lands may be implied as well as expressed. For instance, if the will directs that land shall be sold, but does not say 1 1 Viet. c. 26, § 30. 2 Cordall's Case, Cro. Eliz. 316; Manning's Case, 8 Co. 96 a; Carter V. Barnadiston, 1 P. Wms. 509, 519. » 1 Wms. Ex'rs, 725; Shelton v. Homer, 5 Met. 466; Newcomb v. Stebbins, 9 Met. 542. * -Eichardson v. Woodbury, 43 Me. 210. ASSETS OP THE ESTATE. l85 by whom, if the proceeds are distributable by the executor, either to pay debts or legacies, he has an implied power to sell ; and so in many other cases where the circumstances or directions of the will imply a power.^ So, if the money received from the real estate is to be blended with the per- sonal estate, the executor has an implied power of sale.^ The mere charging lands with specific debts does not give the executor this power of sale, but the lands descend to the heir or devisee subject to the charge, and the executor has no power to sell the land to enforce the charge.* § 332. Equitable Conversion. — The doctrine of equitable conversion gives rise to still another species of interest which an executor or administrator may have in the real estate of the testator. It is a familiar principle of courts of equity, that things shall be considered as done which ought to have been done ; and therefore land is sometimes con- sidered as money, and money as land, in those courts. Thus, where land is contracted to be sold, and the vendor dies before the payment of the purchase-money, the land is con- sidered in equity as personal property in settling his estate,* and the purchase-money, when it is paid, is personalty and 1 1 Sugden on Powers, 238; Magruder v. Peter, 11 G. & J. 217; Going V. Emery, 16 Pick. Ill ; Lockart v. Northington, 1 Sneed, 318 ; Living- ston V. Murray, 39 How. Pr. 102. 2 Tylden v. Hyde, 2 Sim. & St. 238; Gray v. Henderson, 71 Pa. St. 368; Borland v. Borland, 2 Barb. 63; Bogert v. Hertell, 4 Hil], 492; Meakings v. Cromwell, 2 Sandf. 512; Putnam Free School v. Fisher, 30 Me. 523 ; Magruder v. Peter, 11 G. & J. 217; Houck v. Houck, 5 Pa. St. 273 ; Lockart v. Northington, 1 Sneed, 318. 8 Boe V. Hughes, 6 Exch. 223; Ben v. Allen, 2 N. J. L. 45; Bunn v. Keeling, 2 Bev. (N. C.) 283; Fox's Will, 52 N. Y. 530. * Sikes V. Lister, 5 Vin. Abr. 541, pi. 28; Baden v. Earl Pembroke, 2 Vem. 213; Moore v. Burrows, 34 Barb. 173; Adams v. Green, lb. 176; Hen- son V. Ott, 7 Ind. 512; Anthony v. Peay, 18 Ark. 24; Loring v. Cunning- ham, 9 Cush. 87; Sutter v. Ling, 25 Pa. St. 466; Craig v. Leslie, 3 Wheat. 563, 577; Hurtt ». Fisher, 1 H. & G. 88; Collins v. Collins, 8 Ohio St. 369; Ferguson v. Stuart, 14 Ohio, 140; Thomas v. Wood, 1 Md. Ch. 296 ; Maddox v. Bent, 4 Md. Ch. 543; Willing v. Peters, 7 Pa. St. 287. 186 LAW OF EXECUTORS AND ADMINISTRATORS. part of the assets of the estate.^ And conversely, if the vendee die before the conveyance of the land, the purchase- money is considered as land, and will descend to the heir.^ And the vendee's interest in the land under this contract is an interest in real estate, and goes to his heirs, and not to his personal representatives.^ § 333. Equitable Conversion by Will. — Another form of equitable conversion arises when the testator has plainly di- rected that land shall be considered as personal estate, to all intents and purposes. This direction will exclude the heir, and give the interest to the executor as personal estate, pro- vided it is plain that the conversion was intended to take place before the testator's death.* So, a direction to sell land and pay legacies with it converts it to personalty, even though the legatee is allowed to take the land as substitute for the legacy.^ But if the conversion is to take place after the tes- tator's death, as where he directs land to be sold, and the proceeds be deemed part of his personal estate, this does not exclude the heir, since the testator has only impressed a cer- tain character upon the estate, and has not designated the persons who are to take it.^ Therefore, if land is to be converted for a particular purpose which fails, or there is an excess of proceeds over the amount required by the purpose, the proceeds or surplus is in equity considered as belonging to the heir and not the executor.'^ § 334. Statutory Fewer to sell Land to pay Debts. — An- 1 Denham v. Cornell, 67 N. Y. 556; Handy v. Collins, 60 Md. 244. ° Edwards v. Countess Warwick, 2 P. Wms. 171. » Palmer v. Morrison, 104 N. Y. 132. * Fitch V. Weber, 6 Hare, 149. 6 Miller v. Com., Ill Pa. St. 327; Kouvalinka v. Geibel, 40 N. J. Eq. 443; Parker v. Linden, 44 Hun (N. Y.), 518; Clift v. Moses, lb. 312; Proctor V. Fenbee, 1 Ired. Eq. 143. « Johnson v. Woods, 2 Beav. 409 ; Flint v. Warren, 16 Sim. 124. ' Pring, Exp., 4 Yo. & C. Ex. 507; Bogert v. Hertell, 4 Hill, 492; Drake V. Pell, 3 Edw. Ch. 251; Tilghman's Est., 5 Wheat. 44; White v. Howard, 46 N. Y. 144. ASSETS OP THE ESTATE. 187 other interest in the land is the power which an executor or administrator has by statute to sell the real estate to pay debts. This important power of the executor or adminis- trator will be more fully discussed later, but it is not out of place to say here, that such a power is given when the per- sonal estate is not sufficient for that object. This power, it should also be observed, like the power of sale conferred by the will, is a naked power, and gives the executor no interest in the estate, and is only to be exercised by leave of court.^ § 335. Land taken on Execution. — An executor or ad- ministrator sometimes takes land on execution, for debts due the estate. In such a case, the land belongs to the per- sonal estate, and is to be accounted for as such ; ^ and the executor or administrator holds the legal title in trust for the heirs and legatees, and may therefore maintain actions for trespass on the land, or may recover possession of it ^ until distribution and partition is made.* The executor may of course, with the consent of the heirs and devisees, occupy the land, and is then accountable to them for the rents and profits, but not as assets of the estate which creditors can reach ,^ un- less they are especially agreed to be assets of the estate,^ or the heirs and devisees, by assenting to an account where they are included as assets, have treated them as such.'' § 336. Land bought with Partnership Funds. — Profits real- ized from lands which have been bought with partnership funds, and are held for partnership purposes, for example, iron mining business, are considered to be personal estate, until the dissolution of the partnership, and descend as such to the personal representatives.^ 1 Harding v. Le Moyne, 114 111. 65; Litterall v. Jackson, 80 Va. 611. 2 Mass. Pub. Sts. c. 133, § 8; Phillips v. Rogers, 12 Met. 406. 8 Willard v. Nason, 5 Mass. 240. * Boylston v. Carver, 4 Mass. 598. 6 Almy V. Crapo, 100 Mass. 218. 6 Brigham v. Elwell, 145 Mass. 522. "> Brooks V. Jackson, 125 Mass. 307. 8 Leaf's App., 105 Pa. St. 513. Cf. Foster's App. 74 Pa. St. 395. 188 LAW OF EXECUTORS AND ADMINISTRATORS. § 337. Chattels Real. — The next kind of property in which the executor or administrator may have an interest, is the cliattels real of the deceased. Chattels real are chattel interests which issue out of, or are annexed to the realty.^ Any estates in land which are for a definite space of time, either years, months, or days, are chattel interests in land, and go to the executor ; ^ while any estate in possession, re- mainder, or reversion, which is for life or for some uncertain interest, and is conveyed by an instrument capable of con- veying a freehold, and which may last the life of the devisee or grantee, or of some other person, is a freehold estate, and does not go to the executor or administrator but to the heir.^ The questions arising as to the distinction between an estate for life and for years are numerous, but do not prop- erly belong to the scope of this work, and for a further dis- cussion of them the reader is referred to the standard works on Real Property. But it is sufficient to say that estates for years,* from year to year,^ or for life pur autre vie by statute,® are chattel interests and go to the executor. § 338. Long Leases are Freeholds, when. — In this connec- tion, it should be mentioned that in some States leases for a long term are considered as estates of inheritance, and there- fore go to the heirs and not to the executor. Thus in Massa^ chusetts leases for more than one hundred years are regarded as estates in fee, while fifty years remain unexpired, so far as inheritance is concerned.^ § 339. Mortgages as Assets. — In regard to mortgages, the \ 1 2 BI. Com. 386. 2 1 Prest. on Est., 203 ; Thornton v. Mehring, 117 111. 55. * Walker on Conveyancing (Mosley & Coote's ed.), 63. * 3 N. Y. Rev. Sts. p. 2294; Keating v. Condon, 68 Pa. St. 75; Wiley's App., 8 W. Se S. 244 ; Md. Rev. Code, art. 50, § 145. 8 Doe V. Porter, 3 T. R. 13; James v. Dean, 11 Ves. 393; 3 N. Y. Rev. Sts. p. 2294. « Reynolds v. Collin, 3 HiU, 441. ' Mass. Pub. Sts. o. 121, § 1. ASSETS OP THE ESTATE. 189 interest of the mortgagee is now generally held to be personal property, whether the mortgage purports to be in fee or for years. In fact, as most mortgages are now made as convey- ances in fee simple, this species is the only one in which the question commonly arises, and it is held that in such cases the money due upon the mortgage is to be repaid to the exec- utor or administrator and not to the heir.^ If, however, the mortgage is in fee, the title to the land at common law goes to the heir as trustee for the executor or administrator, but a conveyance will be ordered by a court of equity .^ § 340. statutes settling Cbaracter of Mortgage as Person- alty. — In order to render the character of a mortgage more clearly personal it is in some States provided by statute that, however the term of the conveyance may be, if the mortgagee dies before foreclosure, the mortgaged premises and the debt secured thereby are to be considered as personal assets in the hands of the executor or administrator, and shall be accounted for as such, and he may take possession ; the debt also must be paid to him, and if he takes possession of the premises he is seized in trust for the persons entitled to the money ; he may also sell the premises subject to redemption, and if the land is not redeemed or sold it shall be distributed to the same persons and in the same proportions as if it were per- sonal assets.^ Any deed, therefore, by the heirs of the mort- gagee made before foreclosure of the mortgage, or before a decree of the probate court directing distribution, is of no effect as passing any legal title,* and a gift of a mortgagee's 1 Plummer v. Doughty, 78 Me. 341 ; Bird v. Keller, 77 Me. 270; Kinna v. Smith, 2 Gr. (N. J.) Eq. 14; Grant v. Chambers, 3 Halst. (N. J.) Eq. 223; Miller i>. Henderson, 2 Stockt. 320; Demarest v. Wynkoop, 3 Johns. Ch. 129. 2 Ellis V. Guavas, 2 Chano. Cas. 50; Kinna v. Smith, 2 Gr. (N. J.) Eq. 16 ; Demarest v. Wynkoop, 3 Johns. Ch. 129. 8 Mass. Pub. Sts. c. 133, §§ 6, 7, 9, 10; Brooks v. Goss, 61 Me. 315. See also Appendix of Statutes. « Taft V. Stevens, 3 Gray, 504. 190 LAW OP EXECUTORS AND ADMINISTRATORS. interest by a will is a bequest of personal property and passes no interest in the land.^ So if a mortgagee enters for breach of condition, but dies before foreclosure is com- pleted, the debt and mortgage goes to his executors and not to the heirs.2 § 341. Merger of Mortgage in Fee. — A mortgage interest is generally merged, when the mortgagee acquires the fee ; but this is not always true, and if the mortgagee do any act ex- pressing a contrary intention, or if there is any benefit arising to the mortgagee from keeping the mortgage alive, it will be so treated in equity, and therefore it will be assets for the executor, while the equity of redemption goes to the heir.^ It follows of course, from the personal character of the mort- gagee's interest in the land, that if the executor buys in the mortgaged premises in foreclosing the mortgage, the land is personal property, arid may be sold by him as such.* § 342. Equity of Redemption is Real Estate. — The mortga- gor's equity of redemption in the land is real estate, but if the mortgage is foreclosed and the surplus moneys paid to the mortgagor during his life, they are assets of the estate, and go to the executor.^ Whereas if the sale is after his death, they are real estate,^ and go to his heirs as representing the equity of redemption. § 343. Interest in Remainders. — The executor or adminis- trator may also have an interest in chattels real by way of remainder. Thus if one bequeath a term of years to one for his life and after his death to another, and the second dies before the first, his interest goes to his executor.^ So he may have an interest by forfeiture of condition, for if one owning a term of years grants it to another on condition, and after 1 Martin v. Smith, 124 Mass. 111. " Fay V. Cheney, 14 Pick. 399. » "Wms. Ex'rs, 689. * Lookman v. Reilly, 95 N. Y. 64. 6 Bogerfc V. Furman, 10 Paige, Ch. 496. * Moses V. Muvgatroyd, 1 Johns. Ch. 119. ' Wentw. OE. Ex. 189. ASSETS OP THE ESTATE. 191 his death the condition is broken, the term goes to the execu- tor or administrator of the grantor.' § 344. Personal Property as Assets. — The main portion of an executor or administrator's estate is the personal property of the deceased, and this may be subdivided into two parts, — personal property in possession and rights of action. Per- sonal property in possession may consist of chattels animate, such as cattle, etc., or chattels vegetable, such as crops, etc., and chattels inanimate, such as furniture, etc. Chattels animate, again, may be divided into domestic ani- mals and those fercB naturcB. Of course, in all the ordinary domestic animals such as horses, farm-cattle, etc., a man has an absolute right of property which vests in the executor or administrator. Dogs, being domestic animals and also of value, go to the executor or administrator as personal prop- erty .^ In animals feros naturce, such as wolves, foxes, etc., there is no right of property, so long as they continue in their wild and undomesticated state.* But if such animals have been reclaimed by man's industry, and either tamed or con- fined so that they cannot escape, there is a qualified right of property in them, so long as they remain in his custody or possession.* And if he dies while they are so reclaimed, they belong to the executor or administrator. Thus, tame pigeons, deer, rabbits or partridges, or other animals, if they are tame or confined in one place, go to the executors or administra- tors.® But if they fully regain their liberty, the property in them ceases, unless they are so trained as to return home after escape.® But deer in a park or doves in a dove-house will not go to the executor or administrator, for they are not so reclaimed as to be the subject of property.'' So fish in a pond 1 Wentw. Off. Ex. 181. 2 4 Bum, Eccles. L. 497 ; Wentw. OfE. Ex. 143. 8 2 Bl. Com. 390, 391. * 2 Bl. Com. 390. 6 "Wentw. OfE. Ex. 143. « 2 Bl. Com. 392. ' Wentw. Off. Ex. 127; Case of Swans., 7 Co. 17 b. 192 LAW OP EXECUTORS AND ADMINISTRATORS. do not belong to the executor.^ But if they are in a taiik or net, they belong to the executor.^ So oysters may be the sub- ject of a qualified property .^ But if deer are in a park or doves in a dove-house or fish in a pond, and the deceased had the park or dove-house or pond for a term of years, the deer, doves, or fish go to the executors, as accessory to the term of years in the park or dove-house or pond ; but the executor cannot waste them nor use them otherwise than the deceased might have done.* § 345. Chattels Vegetable. — It is of course the rule of law that trees, grass, fruit, etc., while they are annexed to the realty, form a part of it and pass with the realty to the heir.^ But if trees, grass, or fruit, or the produce of the soil, are severed from it during the life of the owner, they are, upon his decease, personal property, and go to the executor or ad- ministrator.® Yet under certain circumstances even trees annexed to the soil may be impressed with the character of personal property. Thus if one owning land in fee grant the trees on it to another, the property in them passes to the grantee, and if he dies, they go to his executor or administra- tor, because they are considered as having been in law severed from the freehold ; '' and so if the owner sells the land, reserv- ing the trees, they go to his executor or administrator and not to his heir.^ But this qualification is added by the later cases, that the reservation must be with a view to separating the trees from the land, within a short time ; so that it appears that the contracting parties meant to impress the character of personalty upon the trees, for if it is simply a reservation of 1 Co. Litt. 8 a. 2 Bao. Abr. tit. Ex'rs, H. 3. 8 14 Wend. 42; 4 Barb. 392; Lowndes v. Dicterson, 34 Barb. 586; BrinkerhofE v. Starkins, 11 Barb. 248. < Wentw. OH. Ex. 127; Godolph. Ft. II. c. 13, § 4; Co. Lit. 53 a. 6 Liford's Case, 11 Co. 48 a; Swinb. Ft. VII. § 10, pi. 8. « 2 Bl. Com. 389. ' Stukeley v. Butler, Hob. 173; Wentw. Off. Ex. 148. 8 Herlakenden's Case, 4 Co. 63 6. ASSETS OP THE ESTATE. 193 those trees as trees growing on the land, they remain part of the real estate.^ Trees, although severed from the land, may go to the heir. This is the case where a tenant for life cuts down timber ; he is considered to have committed waste, and the timber belongs to the inheritance, and on the death of the tenant for life will go to the heir or remainder-man and not to the executor.^ § 346. Emblements. — Emblements form a distinct branch of the estate of an executor or administrator. Under this head are included all crops which are produced annually by the labor of man, and which are therefore called fructua in' dustriales. Thus if one plants land with corn, and dies, his executor or administrator is entitled to the crop as a compen- sation for the labor and expense of producing the crop.^ Em- blements include, besides the ordinary grain crops, every crop produced annually by labor and sowing,* — such as hemp, flax, saffron and the like,^ melons of all kinds,^ hops also, though growing from an old root, because each annual crop requires manure and cultivation.'^ Potatoes also belong to the execu- tor.* And so of carrots, parsnips, turnips, etc., though it was at one time thought otherwise.^ § 847. Emblements. — Trees, shrubs, and other plants, planted by nursery-men in a garden as a temporary place of growth with a view of sale, are considered as emblements, and belong to the executor, though perhaps they should be more strictly considered removable fixtures.^" Grass does not ordinarily come under the rule of emblements,, because it » McClintock's App., 71 Pa. St. 365. * Herlakenden's Case, 4 Co. 63 a. > Swinb. Ft. VII. § 10, pi. 8; 2 Bl. Com. 122 ; Co. Litt. 55 6; Md. Rev. Code, art. 50, § 145; and see Appendix of Statutes. * Co. Litt. 55 b. « Co. Litt. 55 5. « Wentw. OfE. Ex. 153. ' Co. Litt. 55 b. » Evans v. Roberts, 5 B. & C. 882. 9 Co. Litt. 55 b ; Wentw. OfE. Ex. 152. w Penton v. Robart, 2 East, 90; Lee v. Risdon, 7 Taunt. 191. 13 194 LAW OF EXECUTORS AND ADMINISTRATOES. is said to be the natural product of the soil.^ But it seems that artificial grasses which are sown for crops might be con- sidered emblements.^ § 348. Title to Emblements. — In all cases of emblements, on the death of the tenant in fee the emblements go to the executor as against the heir,^ but not as against a dowress,^ nor as against a devisee of the land,^ for the owner is supposed to have meant the crops to go as part of the devise ; ® but this supposition may be rebutted by evidence showing that it was the testator's intention that the devisee should not have the crops, as where one devised estates to A. in fee, and to his executors inter alia the stock upon the farm, it was held that the devise of stoct upon the farm carried the crops growing to the executor.^ If there is a specific legacy of the grow- ing crops to any one, by English law the crops vest in the executor until his assent to the legacy, and after that in the legatee.^ § 349. Title to Emblements. — The privilege of emblements belongs to the executor or administrator not only of the owner of the fee, but of tenant for life or years of any uncertain or certain interest which is terminated by death while the crops are growing which he planted ; ^ and this is now true of a dowress, although by the early common law it was otherwise.^" If the dowress married, and her husband died before the sev- erance of a crop planted when she became dowress, or by her, at common law her executors took the crop, because the hus- 1 Gilb. Ev. 215, 216. 2 4 Burn, Ec. L. 299. Contra, Evans v. Iglehart, 6 G. & J. 188. ' Co. Litt. 55 h; Lawton v. Lawton, 3 Atk. 16 ; Dennett v. Hopkinson, 63 Me. 350. * 2 Inst. 81; Anon. Dyer, 316 a. 6 Spencer's Case, Winch, 51; Cooper v. Woolfitt, 2 H. & N. 122; Den^r nett V. Hopkinson, 63 Me. 350. « Gilb. Ev. 214. ' West t'. Moore, 8 East, 339. 8 Swinb. Pt. VII. § 10, pi. 8; Cox v. Godsalve, 6 East, 604. » Co. Litt. 55 h ; Com. Dig. Biens, G. 2. 10 Bract, lib. 2, fol. 96; St. Merton, 20 Hen. III. c. 2. ASSETS OP THE ESTATE. 195 band had no interest in it. But if the husband sowed a crop and then died, his executor had it, as against the dowress, because he sowed it.^ Upon tlie death of tenant by curtesy, the emblements, if any, belong to his executor ; ^ and so upon death of lessee at will.^ § 350. Chattels Inanimate. — In regard to chattels inani- mate, which may consist of any kind of furniture, etc., the general rule is that they go to the executor or administrator. The only property so vesting is that which belonged to the deceased at the time of his death. Therefore if he has di- vested himself of the property by sale or gift during his life, or by donation causa mortis, the property does not belong to his estate.* But for fuller discussion of these subjects the reader may properly be referred to other specific treatises. § 351. Heirlooms. — Again, there are certain pieces of per- sonal property which are recognized in England and in some of the United States, as going with the real estate, and which are called heirlooms. These by special custom go to the heir with the land;^ but this subject is not of sufficient importance in the United States to demand a detailed examination, and the reader is referred to Mr. Williams's work on Executors, for a statement of the English law in this regard.® § 352. Fixtures. — Again, in another class of cases, chat- tels may have been so affixed to the realty as to become part of it, and in such case are no longer regarded as personal property, and of course do not go to the executor or ad- ministrator. This subject, again, is more properly a part of the Law of Fixtures, to the standard treatises on which the reader is referred.'^ It may, however, be stated generally, that a chattel must 1 Bro. Abr. tit. Emblements, pi. 26; Co. Litt. 55 6; 7 Harr. kJ. 17; Hall V. Browder, 4 How. (Miss.) 224. 2 1 Roper, Husb. & Wife, 35. » Co. Litt. 55 6. « Wms. Ex'rs, 1770, infra, § 619. 6 2 Bl. Com. 427. * Wms. Ex'rs, 1721, et seq. ; and see Appendix of Statutes. ' Amos & Ferard on Fixtures; 1 Washb. Keal Prop. 24-26. 196 LAW OP EXECUTORS AND ADMINISTRATORS. be in some way attached to the land, or house, or other build- ing, not merely placed on it or in it, in order to become a fixture, and this in some way which entails damage to the realty by its removal, as, if it can be removed without any damage, it is ordinarily a removable chattel.^ The intention with which the attachment is made is also of some im- portance, since if it is attached to the realty by the owner only for better use as a chattel, for example, a carpet at- tached to the floor by nails or tacks, it remains personal property.^ § 353. Comparative Rule as to Fixtures. — The law looks more strictly upon the right of an executor or administrator to chattels affixed to the realty, as against the heir, than it does in cases of tenant for yearSj against the owner of the land, and therefore one case is not an authority for the other.^ An exception to this strictness exists in England, in case of fixtures put up in a house for ornament or conveni- ence, such as pier glasses, pictures, or other articles affixed to the wall by nails or screws, although even in regard to these, it may perhaps be said that if they are once substaur tially affixed to the realty so that they cannot be taken away without damage to it, they go to the heir.* As between the executor and the devisee, the rule is even more strict against the executor than as between him and the heir, since it is presumed that the testator intended to grant the full enjoyment of the land devised, and therefore, if there is any question, the presumption is in favor of the devisee.^ As between the executor of the tenant for life and a remainder- man, or reversioner, the rule is more relaxed ini favor of the 1 Amos & Ferard on Fixtures, p. 2; Wilde v. Waters, 16 C. B. 637; Bainway v. Cobb, 99 Mass. 457; 3 N. Y. Kev. Sis. p. 2295; Md. Rev. Code, art. 50, § 145. See also Appendix of Statutes. " Hellawell v. Eastwood, 6 Ex. 295 ; Longbottom v. Berry, L. K. 5 Q. B. 123. 8 Bainway v. Cobb^ 99 Mass. 459. * 4 Burn, Ec. L. 801. 6 Wood V. Gaynon, 1 Ambl. 395. ASSETS OP THE ESTATE. 197 executor, and particularly in regard to trade fixtures, which probably would go to the executor, unless so afiixed to the freehold that substantial injury would be done by removing them.^ In fact, in some States it is enacted by statute, that fixtures annexed by tenant for life may be removed within a reasonable time after his death, and that the rules as be- tween landlord and tenant for years shall apply .^ Buildings affixed to the realty by a mortgagor do not go to his pei'sonal representatives, upon his death, but enhance the value of the security.^ § 354. Agricultural Fixtures. — The exception in favor of trade fixtures has been held not to apply to agricultural fix- tures.* Manure in a heap is said in England to be a chattel, and goes to the executors, but if it is scattered on the ground so that it cannot well be gathered without gathering part of the soil with it, it is parcel of the freehold ; ^ but in Massachusetts, it is held that manure made in the ordinary course of farm- ing upon a farm, is so attached to the realty as to go to the heir, and not the administrator, although it is in a heap, and not broken up or ready to be incorporated in the soil.^ § 355. Choses in Action belonging to the Estate. — A large division of personal property consists of stocks, bonds, and other evidences of indebtedness. These are properly choses in action, but they are of so distinct a character that they are best treated separately from the mere rights of action. Perhaps the most important is that kind of chose in action which consists of stocks, bonds, etc., and such evidences of indebtedness. These are of course personal property, and go to the executor or administrator, and are so far in the nature 1 Lord Dudley o. Lord Warde, 1 Ambl. 113. 2 Mass. Pub. Sts. c. 126, §§ 10, 11. « Butler V. Page, 7 Met. 42. * Elwes v. Maw, 3 East, 38. 5 Yearworth v. Pierce, Aleyn, 32. * Fay V. Muzzey, 13 Gray, 55. 198 LAW OP EXECUTORS AND ADMINISTRATORS. of absolute property, and not of mere choses in action, that they are regarded as property in possession and in the possession of the executor or administrator.^ § 356. Policies of Insurance when payable to Executor or Administrator. — So the money due on an insurance policy on the life of the deceased is assets of the estate, if this policy was payable to the deceased or his representatives,^ but if payable to others, it is not.^ A policy payable to the deceased, his executors, administrators, or assigns, for the benefit of others is not strictly assets, but the executor holds in trust for the beneficiaries.* A policy on another's life is assets.^ § 357. Payments by Mutual Relief Associations. — Under the by-laws of masonic mutual relief associations, it is often provided that the beneficiary may designate to whom the money relief shall be paid after his death, if approved by the di- rectors. Under such a by-law, a designation by will is not good. The designation must be in the lifetime of the mason ; ^ nor is any designation valid which provides that the money shall go outside of the beneficiaries limited by the statutes governing such associations, if there are any in the State. For instance, in Massachusetts charitable associations are authorized, in order to assist widows, orphans, or other persons dependent on the deceased members, to allow members to deposit with the society a fixed sum of money, to be held by the association till the death of the member and then to be paid to the persons entitled thereto. If the by-laws of such an association allow members to designate to whom the 1 3 N. y. Rev. Sts. pp. 2295, 2300. ^ Bailey v. N. Eng. M. L. Ins. Co., 114 Mass. 177; Stevens ». Warren, 101 Mass. 564. 8 Wendell, Matter of, 3 How. Pr. n. s. 68; Palmer, Matter of, 3 Dem. 129 ; Bown v. Supr. Council, 33 Hun, 263 ; Com. v. Unity M. L. Ins. Co. 117 Mass. 337. * Van Dermoor, Matter of, 42 Hun, 326; Stowe v. Phinney, 78 Me. 250; Bailey v. N. Eng. M. L. Ins. Co., supra; Gould v. Emerson, 99 Mass. 156. 6 Swan V. Snow, 11 Allen, 224. 8 Daniels v. Pratt, 143 Mass. 221. ASSETS OP THE ESTATE. 199 money shall be paid, and a member designates " his estate," this is an invalid designation, since the " estate," is not among the statutory beneficiaries. And such a sum is not strictly assets of the estate. It should be distributed among those entitled by the by-laws of the company, if those by-laws are legal ; if not, according to the statute of distributions. If it happens to be paid to the executor, he holds it, not as assets, but in trust for those entitled to it. The money paid over under a policy of insurance on build- ings is personal property, if paid before the death of the decedent ; ^ but if the buildings are destroyed after the death of the decedent, the money is real estate.^ A deposit in a savings bank in the name of the deceased, in trust for some one else, is not assets of the decedent's estate ; ^ nor a deposit in a national bank in trust for another.* Interests in patents and copyrights vest in the executor or administrator, under the statutes creating those rights, both in England and the United States. And the executor or administrator may make application for a patent,^ or may bring a bill in equity to enforce rights under the patent.® The same principle ap- plies to a trade secret, or process, which one has discovered and kept secret, whether patentable or not, if the person about to use it will by so doing violate any contract, or be guilty of a breach of good faith.^ The contract right in such case survives to the executor, and he may bring a bill for an inj unction .^ So a pension from the United States pay- able to a widow, who dies before it is paid, should be paid to her executor or administrator, and not to the children.^ 1 Jagger v. Bird, 42 Hun, 423. 2 Wyman v. Wyman, 26 N. Y. 253. 8 Collyer, Matter of, 4 Dem. 24; Farrelly v. Ladd, 10 Allen, 127. * Crowe V. Brady, 5 Redf. 1. ^ U. S. Rev. Sts. § 4896. ^ Providence Rubber Co. v. Goodyear, 9 Wall. 788. '' Peabody v. Norfolk, 98 Mass. 452. ' Peabody v. Norfolk, supra. 8 Foot V. Knowles, 4 Met. 386. 200 LAW OP EXECUTOES AND ADMINISTRATORS. § 358. Rents. — Rents which accrue after the death of the lessor who owned the fee, go to the heir.^ But if a lessee for years make a lease, the rents accruing after his death go to his executors, since they are the profits of a term which was personal property and therefore belong to them.^ Rent which accrues before the death of the owner of the fee goes to the executor or administrator, as a chose in action.^ It is, however, now provided by statute in many States, that when any lease is determined by the death of the lessor before the end of the period at which rent is payable, the executor or administrator may recover rent for the part of that period which has elapsed before the death of the lessor.* § 359. Dividends; Interest; Insolvency. — Dividends on stock belong to the person who owns the stock when the dividends are declared, and not to the executor of the prior holder;* but in a case in Massachusetts, where one had a life interest in certain stock of a manufacturing company, it was held that a dividend wholly earned before her death but not declared till after her death belonged to her executor, and not to the sub- sequent owner of the stock.® Interest on money is regarded as being due de die in diem, and therefore goes to the execu- tor up to the time when the decedent died, even though it is payable half yearly, or at other definite times.^ Since an as- signment in bankruptcy or insolvency vests the choses in ac- tion of the bankrupt in the assignee, of course his executor or administrator gets no interest in them.^ § 360. Equitable Assets. — A peculiar species of equitable 1 Co. Litt. 47 a; Cother v. Merrict, Hardr. 95 j Kohler v. Enapp, 1 Bradf. 241; GetzandafEer v. Caylor, 38 Md. 28.3. ^ 2 Saund. 371, note (7) to Sacheverelle v. Frogsbtt. » 3 Bao. Abr. 63, Ex'rs, H. 3; Wentw. Off. Ex. 129; Wadsworth v. Allcott, 6 N. Y. 64; GetzandafEer v. Caylor, 38 Md. 283; 7 Md. 376. * Mass. Pub. Sts. c. 121, § 8. ' Pearly v. Smith, 3 Atk. 260; Bichardson v. Richardson, 75 Me. 570. ' Johnson v. Bridgewater Iron Manuf. Co., 14 Gray, 274. ' Wilson V. Harman, 2 Ves. 673; Banner v. Lowe, 13 Ves. 135. 8 Exp. Goodwin, 1 Atk. 100. ASSETS OP THE ESTATE. 201 assets exists where a general power of appointment over prop- erty, either by deed or will, is given to a person and he exe- cutes this power. In such a case the property over which the power extends is said to be equitable assets of the person who has the power, and will be taken Jrom the appointee and applied by a court of equity to satisfy his creditors.^ The principle of this rule is not very clear, for in case of a naked power over property no property right exists in the person who is given the power. The explanation of this rule is said by Lord Hardwicke to be that the person having such a power might appoint the property to whomever he pleased, and he might have appointed to his executors, and if he exe- cuted it voluntarily and without consideration for the benefit of third persons, the money should be considered part of his assets, and his creditors should have the benefit of it.^ So ^here property was entrusted by one to a bailee who con- tracted to pay it to her executor, in trust for such persons as she should by will direct, and she appointed it to be paid to her children, it was held that the property was equitable assets of her estate.^ § 361. Choses in Action; Rights of Action; Contract. — The next question which arises is, what is the right of an executor or administrator in the personal property of the deceased not in possession, in other words, in his ehoses in action. And in regard to them the common-law rule was that personal actions founded upon contract survived the death of the con- tractor, and if he might have sued in his lifetime, his executor or administrator might sue after his death.* Such causes of action, therefore, are assets of the estate, to be inventoried and accounted for as such by the executor or administrator. An executor or administrator might therefore sue to recover 1 Clapp ». Ingraham, 126 Mass. 202. « Townshend v. Windham, 2 Ves. 1, 9, 10. ' Clapp 0. Ingraham, supra; as to equitable assets see post, § 707, et seq. * 1 Saund. 216 o, note (1) to Wheatley v. Lane; Sleeper v. Union Ins. Co., 65 Me. 394. 202 LAW OP EXECUTORS AND ADMINISTBAT0B8. all debts due to the deceased, whether debts of record, judg- ments, debts on bonds, covenants or sealed instruments, prom- issory notes, or simple contracts expressed or implied.^ But if the executor or administrator himself owed debts to the estate, he could not enforce these claims by actions against himself, and therefore he was regarded as having received the debt in his capacity as executor or administrator, and the debt was considered as extinguished and the executor or adminis- trator charged with its amount in his accounts.^ The effect of the appointment of a debtor as executor or administrator, and the statutes relating thereto, will be examined later.^ § 362. Rights of Action, — Detinue, Replevin. — An executor also might, at common law, recover for detinue of goods be- longing to the deceased, or have an action of replevin for goods taken from the deceased ; * or if the goods had been sold subsequent to the taking, he might have an action for money had and received.® § 363. Rights of Action, — Tort. — At common law, however, actions founded on a tort or injury done to the person or property of the deceased, and for which damages were recover- able, died with the person injured or with the tort-feasor, and did not survive to the executor. But by an early statute,® an action was given to the executor, and by construction extended to an administrator for trespass de bonis asportatis; and gradu- ally this was extended by equitable construction till either might have the same actions which the deceased himself might have had, for any injury to the. personal estate of the deceased during his life, whereby it was made of less value to the executor or administrator. This included among others 1 Wentw. OfE. Ex. 159 ; Toller, 157; Irwin v. Hamilton, 6 Serg. h R. 208. ^ Leland v. Felton, 1 Allen, 531; Tarbell v. Jewett, 129 Mass. 460. " See also Appendix of Statutes. . * Le Mason v. Dixon, Sir W. Jones, 173, 174; Potter o. VanVranken, 36 N. Y. 626. 6 1 Saund. 217, note 1 ; Potter v. Van Vranken, supra. « 4 Edw. III. 0. 7. ASSETS OP THE ESTATE. 203 actions of trespass or trover ; ^ also actions against a sheriff for tlie escape of a debtor during the creditor's lifetime, held by him.2 And so it has been held in Massachusetts under the same statute, as part of the common law, that an action sur- vives to the administrator for the failure of his deputy to return an execution ; ^ and an action of trover survives to the executor of a deputy-sheriff for the conversion of property lield by him under attachment.* So it has been held in Mas- sachusetts that an action of replevin survives to the execu- tor under the equity of the statutes of 4 Ed. III., c. 7, and 31 Ed. in., c. 11;^ and the same decision has been made in Pennsylvania.® So of an action for conspiring to defraud a creditor.^ § 364. statute Limits in Special Cases. — By statute, in Massachusetts, this rule has been limited in cases where the deceased had only a special property in the goods, and it is enacted that if an executor or administrator of a trustee, car- rier, depositary, or other person who claimed only a special property in goods, to hold them for the use and benefit of another, recovers such goods, or damages for the taking or detention thereof, in an action of replevin or tort, the goods or money recovered shall not be considered as assets in his hands, but shall, after deducting costs and expenses of suit, be paid over to the person for whose use and benefit they were so held or claimed by the deceased person.^ A further statutory provision as to the action of replevin in Massachusetts may be noticed here, which enacts that when the judgment for a return in an action of replevin is made against an executor or administrator, the goods returned by him shall not be con- sidered assets in his hands, and if they are in the inventory, 1 Russel's Case, 5 Co. 27 a ; Eutland v. Rutland, Cro. Eliz. 377. 2 Piatt's Case, Plowd. 34. » Paine v. Ulmer, 7 Mass. 317. * Badlam v. Tucker, 1 Pick. 389. « Pitts v. Hale, 3 Mass. 321. « Eeist ». Heilbrenner, 11 Serg. & R. 131. ' Penrod v. Morrison, 2 Penr. & W. 126. 8 Mass. Pub. Sts. o. 166, § 3. 204 LAW OP EXECUTORS AND ADMINISTEATOBS. it is sufficient discharge to show that they have been returned in pursuance of such judgment.^ § 365. ActLons not included in the Statute. — The statute of Ed. III. above referred to did not extend to injuries done to the person of the deceased or to his real property. Therefore actions of assault and battery, false imprisonment, slander, deceit, or for obstructing lights, etc., died with the person injured.^ The necessity for an extension of the statutory rule has been acknowledged in most of the United States, and the sub- ject is generally regulated by statute in the United States.^ In Massachusetts, for instance, it is provided that, in addition to the actions which survive at common law, there also sur- vive actions of replevin ; tort for assault and battery, imprison- ment or other damage to the person, for goods taken away or converted by the defendant to his own use, or for damage done to real or personal estate ; and actions against sher- iffs for malfeasance or non-feasance of themselves or their deputies.* § 366. Actions surviving under the Meissachusetts Statute. — Under this statute it has been held that an action of tort for fraud and deceit in selling to the deceased a lot of damaged and poisoned corn, whereby his horses were killed, does not survive, since the gist of that action is the fraud and deceit, and not the injury to the horses, and the statute means that only actions in which the injury to personal property is the gist of the action survive.® But an action of trover for the conversion of the goods of the deceased survives expressly by the statute ; ^ but an action for an imposition by means of false and fraudulent representations, whereby the deceased was induced to transfer property to one who defrauded her of its value, does not survive under this statute, for here the gist of 1 Mass. Pub. Sts. c. 166, § 4. ^ 1 Saund. 217 a, note 1. * See Appendix of Statutes. * Mass. Pub. Sts. c. 165, § 1. 6 Cutting V. Tower, 14 Gray, 183. » White o. Allen, 133 Mass. 423. ASSETS OP THE ESTATE. 205 the action is the false representations, and the resulting injury to the property is only a consequence.^ § 367. Special Statutes as to Survival — In addition to the general statutes regulating this subject, it is sometimes the case that statutes creating actions have express provisions that the executor or administrator may prosecute them after, the death of the testator or intestate. Thus in Massachu- setts, when an action is given by statute to enable a land- owner whose land is flowed by mills below to recover damages for such flowage, it is expressly provided that the executor or administrator may prosecute the action ; and it is held that such executor or administrator may recover damages for in- juries both before and after the death of the landowner, although the damages occurring after the death of the land- owner will be held in trust for the heirs, to whom the title to the land diescends after the death of the first owner.^ So if land of the deceased was taken during his life for public purposes, by rights of eminent domain, and his title to it di- vested, the claim for damages belongs to the administrator and not to the heirs ;3 but if such taking was after his de- cease, of course the damages belong to the heirs.* § 368. Actions for Negligent Killing of Deceased. — A large class of actions of tort given by statute consists of cases where the deceased was killfed by the negligence of another person or a corporation. At common law, no action existed in favor of an executor or administrator on account of the negligent killing of the deceased, but in such cases the statutes of many States provide that the executor or administrator shall have a right of action, and this right of action may be assets be- longing to the estate of the deceased.^ 1 Leggate v. Moulton, 115 Mass. 552. ^ Darling v. Blackstone Manuf. Co., 16 Gray, 189. 8 Moore v. Boston, 8 Cush. 277; Neal v. Knox & Line. R. R. Co., 61 Me. 298. * Ueal V. Knox & Line. R. R. Co., supra, ^ Kelly V. Boston & Maine R. R. Co., 135 Mass. 448. But where a 206 LAW OP EXECUTORS AND ADMINISTRATORS. In many cases, however, the right of action is given to the next of kin, or widow, or is given to the executor merely nominally, and with specific directions that the amount re- ceived shall be distributed in a certain way ; in which case the right of action is not strictly part of the estate of the deceased, as will be seen later. § 369. Survival of Action for negligently injuring a Person so that he Dies. — Under a similar statute, by which an action for negligence whereby a person is injured so that he dies is given to the injured person, the action is held to survive if the person killed lives after the accident ; for it is held that the cause of action is for injury to him, and not for killing him, and therefore being an existing right of action for the injured person it survives to his executors at common law.^ And even fifteen minutes' life after the accident has been held enough to transfer this right to the executor, though insensi- bility intervenes immediately upon the accident ; ^ but such unconsciousness would deprive the administrator of all right to recover for mental suffering.^ If, however, death is instantaneous no action survives,* and the burden of proving that the death is not instantaneous is on the plaintiff .5 But if the proof shows that there were mo- tions and sounds made by the injured person after the acci- dent, though there may be a conflict of testimony as to statute giving a civil remedy is enacted, there being already a statute giving a criminal action, and the latter does not abrogate the former, a cause of action accruing prior to the passage of the later act cannot sustain an action under it. Kelly v. Boston & Maine R. R. Co., supra. 1 Contra, in Connecticut, Davis v. N. Y. & N. Engl. R. R. Co., 143 Mass. 304. " Hollenbeck v. Berkshire R. R. Co., 9 Cush. 479; Bancroft v. Boston & Wore. R. R. Co., 11 Allen, 35. ' Kennedy v. Standard Sugar Refinery, 125 Mass. 90. * Moran v. HoUings, 125 Mass. 93 ; Kearney v. Boston & Wore. R. R. Co., 9 Cush. 109. * Corcoran v. Bost. & Alb, R. R. Co , 133 Mass. 507 ; Riley v. Conn. River R. R. Co., 135 Mass. 292. ASSETS OP THE ESTATE. 207- whether these motions and sounds indicated life, or whether they merely indicated spasmodic muscular contractions accom- panying a violent death, and how far they may have been caused by moving the body, there is sufficient testimony to submit to the jury upon the question whether the deceased actually lived after the accident.^ This species of action is an action " for damage to the person " under the statute.^ These words do not include actions which affect only the feelings of the person, such as breach of promise, slander, or mali- cious prosecution.^ They refer only to damages of a physical character.* § 370. The Right of Action in Different States. — The ad- ministrator or executor cannot recover in one State, upon such a statutory action given by the statute of another State where the injury was done, if the statutory action so given does not confer a right of property, but gives merely a specific power to the executor or administrator to sue for the benefit of the relatives ; for instance, where it does not give damages for the injury to the deceased, but gives a right to recover a certain amount for the estimated pecuniary damages to the widow and children resulting from the death of the injured person, and this amount is not to be distributed, as other as- sets of the estate are, in payment of his debts or subject to his will, but only in respect to the distributees and shares to be taken ; ^ or in other words, if the statute of one State creates a right of property, this right will be enforced in another 1 Tully V. Fitch. R. R. Co., 134 Mass. 500; but see Kearney v. Boston & Wore. R. R. Co., 9 Cush. 112. 2 Norton v. Sewall, 106 Mass. 143. » lb. 145; Smith v. Sherman, 4 Cush. 408; Nettleton ». Dinehart, 5 Cush. 543. * Smith V. Sherman, 4 Cush. 413. 6 Needham v. Grand Trunk R. R. Co., 38 Vt. 294; State v. Pittsburgh & Connellsville R. R. Co., 45 Md. 41 ; Morris v. Chicago, Rock Isl. & Pac. Ry. Co., 65 Iowa, 730; Richardson v. N. Y. Cent. R. R. Co., 98 Mass. 85. See Dennick v. Railroad, 103 U. S. 11. 208 LAW OP EXECUTORS AND' ADHINISTRATORS. State. If no statute exists in the State where the killing was done, no action can be had in another State where such a stat- ute exists,^ but if such a statute exists in the State where the. killing was done, and gives an action which is a right of prop- erty, this right will be enforced in another State^ even though; it has no such statute.^ A case was decided in Massachu- setts,^ in which it was held that the courts of Massachusetts would not enforce a statutory right of action for negligent killing, given by the statute of another State where the cause of action accrued, the statute being penal in its nature, with a limit to the sum recoverable, and containing a special direcr tion as to the distribution of the sum recovered, — the sum therefore not being assets of estate, — although the action, was to be maintained by the adininistrator; § 371. Action of Contract not Surviving. — It should also,' be observed, that in regard to actions based upon contract^ the rule of the common law was, that if the contract was broken in the life of the testator or intestate, the cause of; action still enured to the executor or administrator ; the. courts holding that the. rule actio personalis cum persona moritur applied only to actions founded upon tort, and not to those founded on contract.* But an exception to this rule: existed where the injury arising out of a breach of a promises- expressed or implied, to the deceased, consisted; wholly of sufr fering to the deceased in person, and not to his personal estate. Thus an action for breach of promise of marriage has been held not to survive, unless special damage to the personal esteite of the deceased can be alleged.^ So of cases of injuries to the health or liberty of the deceased!, as those arising from the unlawful practice of doctors, or imprisonment by the 1 Willis V. Missouri Pac. R. R. Co., 61 Tex. 432; Whitford v. Panama R. R. Co., 23 N. Y. 465. " Herrich v. Minn; & St. L. R. R. Co., 31 Minn. 11. « Davis V. N. Y. & N. Eng. R. R. Co., 143 Mass. 303. < Com. Dig. Admr, B., 13. 6 Chamberlain v. Williamson, 2. M. & S. 408. ASSETS OF THE ESTATE. 209 negligence of an attorney.^ Whenever the cause of action does not survive, the administrator of: the deceased plaintiff may move to dismiss the action.^ § 372. Actions accruing after Death of Testator or Intestate. — The executor or administrator may have certain rights of action accrue to the estate after the death of the testator or intestate, and in such case these rights belong to the estate. Thus if any property belonging to the deceased is, after the death of the owner, taken away or injured by a third person, the executor or administrator may sue for this injury in the proper form of action, and may do this either in his individ- ual capacity or as executor or administrator, as the case may be, for the goods are supposed to be in his possession, although he may not have ever had the actual possession of them.2 So an executor may make contracts with regard to the estate, and may then sue upon them, either in his own name or in his representative capacity, and that whether the consideration of the contract was something done or to be done by the deceased, or by himself as executor.* Thus, when an administrator, of one w^ho was indorser on a prom- issory note was obliged to pay the note, it was held that he might sue in his own name to recover the sum thus paid, and when he recovered the amount it was assets in his hands.^ § 373. Actions of Contract accruing after the Decease. — Again, the contracts of the deceased may not be broken by the other party to the contract, until after the death of the contractor, and though no cause of action accrues to the estate till such breach, the executor or administrator may sue 1 2 M. & S. 415, 416. * Nettleton v. Dinehart, 5 Cash. 543. » Bollard v. Spencer, 7 T. R. 358; HoUis ». Smith, 10 East; 2&4; Grim- stead V. Shirley, 2 Taunt. 117. * STeedham v. Croke, 1 Freem. 538; Cowell v. Watts, 6 East, 405; Webster v. Spencer, 3 B. & Aid. 365; Foxwist v. Tremaine, 2 Saund. 208. * Mowry v. Adams, 14 Mass. .327. 14 210 LAW OP EXECUTORS AND ADMINISTRATORS. upon it.^ And the same is true wliere, by means of a con- dition broken after the death of the testator or intestate, a chattel reverts to his estate ; so, when a chattel is pledged, the executor or administrator of the pledgee may redeem at the appointed time,^ or if injury is done to the personal property, after the death of the owner.^ § 374. Rights of Husband and Wife. — When the deceased was a married man, two important questions as to his estate immediately arise : what part of his property is given to the widow outright, exempt from his debts ; and also, what part of the property, if any, which he held in her right, becomes hers again after his death. The common law made certain provisions for the widow out of the husband's estate, without regard to the rights of distribution. § 375. Paraphernalia. — One of these instances is the so- called paraphernalia. This word is derived from the Greek, and means something over and above a woman's dower. In the common law, it signifies the apparel and ornaments of the wife suitable to her rank and degree, which her husband has given to her.* What is so suitable, is a question for the court, considering the rank and station in life of the par- ties.^ Several cases have arisen in England, in which jewels and other valuable ornaments have been kept by the widow, and the retention justified by the courts, as being proper par- aphernalia, the parties being in the rank of the nobility.® § 376. Rule in United States. — This principle of the com- mon law has been recognized in almost all the States, either by statute or by judicial decisions. It is eminently just, and is meant to provide for the immediate clothing of the widow. In many States, the rule is extended so as to give minor 1 Chapman f. Dalton, Plowd. 286. 2 Wentw. Off. Ex. 181. ' Hutchins v. Adams, 3 Me. 174. * 2 Bl. Com. 436. » 2 Roper, Husb. & Wife, 141. • Viscountess Bindon's Case, 2 Leon. 166; Lord Hastings v. Sir A. Douglass, Cro. Car. 343; Tipping v. Tipping, 1 P. Wms. 729. ASSETS OP THE ESTATE. 211 children their apparel also, and there is also in some States a limited money value of the articles which may be thus kept by the widow and children,^ in which case the articles of ap- parel and ornament of the widow and minor children belong to them respectiyely.^ At the present day, in many instances, the widow owns her apparel and ornaments in her own right, and the rule as to paraphernalia does not apply. § 377. "Widow's Allowance. — A further portion of the hus- band's estate is given by statute in most States for the widow's immediate support and that of the children after the hus- band's death. This portion is called the widow's allowance, and generally consists of a certain quantity of provisions, and a certain amount of property up to a limited sum which is fixed either by statute or by the judge of probate, and this allowance takes precedence of all debts or charges upon the estate.^ This allowance has been the subject of numerous decisions in Massachusetts and Pennsylvania, which have set- tled the outlines of this rule as follows. § 378. Decisions in Massachusetts and Pennsylvania. — The allowance may equal the whole personal property, unless that amount is extravagant, considering the situation of the fam- ily ; * but if the probate judge makes an allowance which the Supreme Court on appeal deems more than js necessary on all the facts of the case, it will be reduced by them.^ But under present statutes the decree will not be reversed unless the decision is clearly shown to be erroneous upon a question of fact ; ^ and it has been held that where a widow has waived the provisions made for her under her husband's will, and his ^ Mass. Pub. Sts. o. 135, § 1 ; and see Appendix of Statutes. 2 Md. Kev. Code, art. 50, § 145; Me. Rev. Sts. c. 64, § 48. » Mass. Pub. Sts. o. 135, § 2; 3 N. Y. Rev. Sts. pp. 2295, 2297; Pa. Bright. Purd Dig., Deced. Est , § 64; N. J. Rev,, Orphans' Court, § 52; Md. Rev. Code, art. 50, §§ 142, 143; and see Appendix of Statutes. * Brazer v. Dean, 15 Mass. 183. * Washburn v. Washburn, 10 Pick. 874; Allen ». Allen, 117 Mass. 27. ' Allen V, Allen, supra. 212 LAW OP EXECUTOBS AND ADMINISTRATORS. estate is solvent, the personal estate amounting to about $5000 and the real estate to about $22,000, and the judge of probate has decreed that the widow shall have no allowance except her apparel, this decree will not be reversed on appeal to the Supreme Court.^ The judge of probate may in his discretion refuse to make any allowance. Thus when a woman had lived separate from her husband for many years, under articles of separation, and had considerable property of her own and no children, tlie judge of probate refused to make her any allowance, and the Supreme Court on appeal refused to disturb this decree.^ So in Pennsylvania it is held that a wife who has deserted her husband, or been divorced a mensa et thoro, is not entitled to the allowance.^ The fact that a widow has by antenuptial contract for a valuable consideration waived all claim upon her husband's estate does not prevent her from receiving an allowance,* nor can her husband deprive her of this right by waiving it in favor of a creditor.^ § 379. Right to Allowance is personal. — The right to an allowance is merely personal, intended to support her^ and if she dies, does not go to her personal representatives,^ and belongs wholly to the widow if there are both widow and children, unless otherwise specified by statutes'^ but if after the allowance is made the widow demand the allowance, and it is refused to her or not paid, or if she Select certain articles of personal estate and take possession of them^ but does not retain possession, in either case, if she afterwards die, her representatives may have an action against the representatives of her husband's estate for the allowance.^ » Currier's App., 3 Pick. 375. " HoHenbeok ». Pixley, 3 Gray, 521. » Piatt's App., 80 Pa. St. 501; Spiers's App., 26 Pa. St. 233; Tozer v. Tbzer, 2 Am. L. Reg. 510; Hettrick v. Hettrick, 55 Pa. St. 290. * Blaekinton v. Bladdnton, 110 Mass. 461. » Spencer's App., 27 Pa. St. 218. « Adams ». Adaims, 10 Met. 170. ' Nevin's App., 47 Pa. St. 230; King's App. 84 Pa. St. 345. 8 Drew V. Gordon, 13 Allen, 120. ASSETS OP THE ESTATE. 213 If the first allowance is insufficient a second may be made at any time before the personal estate is exhausted.^ But the judge of probate cannot revoke an allowance once made, and make a leas one, for when the allowance is once made the widow has a vested right in it.^ The fact that there is a will does not invalidate this claim, and although the widow may have accepted the provision made in the will in lieu of dower, she may still have an allowance.^ § 380. Widow's Allowance prior to all other Claims. — The allowance of the widow in most States takes precedence of all the expenses of administration, and of all debts of the estate, and must be first satisfied.* The method is for the adminis- trator or executor to make up his accounts, charging himself with all the personal property, and crediting himself with the sums paid the widow or with the specific articles taken by her, if that is the order of allowance.^ If the widow selects specific articles at their appraised value up to the amount allowed her by the court, and the administrator^ by her con- sent, sells these articles at auction, he should pay her only the amount received from the sale of those articles.® The allowance to the widow is to be made out of the personal es- tate. If the finly personal estate is what came to the deceased as surviving partner of a firm dissolved by the prior death of the other partner, and that estate is insufficient to pay the partnership debts, still an allowance should be made to the widow of the second partner out of these assets.' § 381. Loss of Right by Delay. — The widow, however, may 80 delay and neglect to claim her right as to lose it. In 1 Hale V. Hale, 1 Gray, 522. » Pettee v. Wilmai,rth, 5 Allen, 144. " Williams v. Williams, 5 Gray, 24; Compher v. Compher, 25 Pa. St. 31. 4 Hildebrand'sApp., 39 Pa. St. 133; Dennis?s Est., 67 Iowa, 110. See Appendix of Statutes. 6 Kingsbury v. Wilraarth, 2 Allen, 310. * Kingsbury v. Wilmarth, supra. ' Bush V. Clark, 127 Mass. 113. 214 LAW OP EXECUTORS AND ADMINISTRATORS. Pennsylvania it is held, that if she does not claim it before the estate is paid out to creditors or fully administered, or otherwise put in such a condition that it would be unjust to others to allow her claim, she has waived it.^ A recent de- cision has somewhat extended this statute. In Massachusetts the statute provides that provisions reasonably necessary for the support of the widow and family of the deceased for forty days shall not be taken as assets or to pay debts, and by the case of Fellows v. Smith,^ it seems to be decided that the widow may, under this statute, use whatever money of her deceased husband is in her possession for her support and that of the family for the period of forty days, provided the amount so used is what is reasonably necessary for that pur- pose. But in an earlier case,^ it was held that the widow cannot retain for the payment of such expenses money earned by herself or given her by her husband and retained in her hands at his death, but this money must be inventoried, and the administrator has no authority to allow the widow to retain it. § 382. Special Allowance to 'Widow. — If there is a con- test over a will, and a special administrator ad litem is ap- pointed, he is by statute, in Massachusetts, authorized to advance to the widow or any of the children an allowance for the support of herself or the children, not exceeding that portion of the income which she would be entitled to whether the will is proved or not.* This allowance, however, differs from the ordinary allowance. § 383. Wife's Separate Property. — This subtraction of paraphernalia and allowance is the only effect, with one ex- ception, which the existence of a widow has, in the first in- i Barkin's App., 38 Pa. St. 65; Burk v. Gleason, 46 Pa. St. 297; Cranse's Est., 6 Phila. 72; Tibbin's Est., 5 Phila. 100. 2 130 Mass. 376. See similar provisions in Me. Rev. Sts. c. 64, § 48, and 3 N. Y. Rev. Sts. p. 2295. ' Washburn v. Hale, 10 Pick. 429. * Pub. Sts. c. 130, § 13. See Shannon v. White, 109 Mass. 146. ASSETS OP THE ESTAiTE. 215 stance, upon her husband's estate. She may have claims as distributee, which will accrue subject to the rights of cred- itors, but tliese belong to the subject of the distribution of the estate. The exception above referred to is that at common law, although all the personal property of the wife which the husband has reduced to his possession belongs to him ab- solutely, the personal property of the wife which is not so reduced by the husband to possession during his lifetime becomes the wife's property again at his death, and is not part of the assets of his estate.^ Therefore, her choses in action go to her, and not to the executor or administrator of the husband, as assets of his estate.^ For instance, a bill of exchange or promissory note made to a wife dum sola, who afterwards marries, survives to her, if her husband has not reduced it to possession.^ So a bill which is indorsed or made to a woman during coverture vests in her husband, but if he does not sue on it, it seems to be the better law that it survives to her.* So if a promissory note is made to the wife during coverture, for money loaned by her, and paid to her after her husband's death, the money so paid is hers, as against her husband's executor.^ So a purchase-money mortgage made to husband and wife for the purchase-money of a deed of the wife's land, belongs after the death of the husband to the wife, as against the husband's administrator.® Stocks, also, which belonged to the wife have been held to survive to her, upon her death, they having been in the posses- sion of trustees for her, and having been bought with the proceeds of real estate held in trust for her.'^ If the husband 1 Cummings v. Cummings, 143 Mass. 342. 2 Co. Litt. 351 a; 1 Roper, 204; Hayward e. Hayward, 20 Pick. 517. 8 Sherrington v. Yates, 12 M. & W. 855; Hartu. Stephens, 6 Q. B. 937. 4 Nash v. Nash, 2 Madd. 133 ; Gatera v. Madeley, 6 M. & W. 423. 6 Phelps V. Phelps, 20 Pick. 556. ' Draper v. Jackson, 16 Mass. 479. ' Scawen v. Blunt, 7 Vea. 294. 216 LAW OP EXECUTORS AND ADMINISTRATORS. takes the certificates of stock purchased with her money in his name, the stock is his.^ Arrears of rent due upon land owned by the wife have been held to survive to her, if the husband has not collected them during his life.^ So of a rent service, rent charge, or rent seek, of which the husband is seized in the right of his wife. Arrears of such rent go to the wife, and not to the executors of the husband .^ § 384. Reduction to Possession by Husbamd of Wife's Choses in Action. — An important question is, what action on part of the husband amounts to a reduction of his wife's choses in action into possession. Of course, if a debt, legacy, or other sum owing to the wife is paid to her husband, or to one appointed by him, or by him and his wife, to receive it, this is such a reduction to possession that the wife's title is divested, and the husband's executors entitled to the money.* § 385. Reduction to FossesBion by Husbcuid. — An appro- priation of money in a third person's hands to a payment of the debt or legacy will not do so.^ Nor does a mere in- tention on the part of the husband to reduce the eJutse in action into possession, act to transfer the title to him.^ * The receipt by the husband of the property, if it is in some representative capacity, and not as husband, does not act as a reduction into possession. Thus where a trustee and executor married one of the residuary legatees, his posses- sion of the personal estate of the testator was held to be as trustee and executor, and not as husband, and therefore the wife's share of the residue did not go to his executor, but survived to her.'' * Cummings v. Cumminga, 143 Itlass. 341. ^ 1 Roper, Husb. & Wife, 175; 1 Roll. Admr. 350, tit. Bar. & Feme, D. pi. 2. « Co. Litt. 351 6; Temple v. Temple, Cro. Eliz. 791. * 1 Roper, Husb. & Wife, 220. « Blount v. BesUand, 5 Ves. 515. * 1 Roper, Husb. & Wife, 208. ' Baker v. Hall, 12 Ves. 497. See also Wall*. Tomlinson, 16 Ves. 413. ASSETS OF THE ESTATE. 217 § 386. Proceedings at Law by Husband. — If the husband during his life proceeds at law to collect the debt or other thing owed, alone, and he die after judgment, the judgment goes to his executors and administrators, and does not sur- vive to the wife.^ But if he sues with her, the judgment survives to her.^ In equity, when both husband and wife are parties, the right to the property does not become changed until a decree is entered to that effect, or an order is granted directing the money to be paid to the husband.* The fact that the husband alone proves. a wife's debt in a proceeding in bankruptcy does not alter the property, but if he dies, the dividend is to be paid to the wife, and not to the husband's executor.* An award by arbitrators in favor of the husband will alter the property, and make it his.^ The wife's chases in action may be transferred to the hus- band by an antenuptial settlement, if that is expressly so stipulated in the settlement, and in that case her right of survivorship is lost; but this will not carry property accruing to her after marriage, unless expressly so stipulated;^ but by postnuptial settlement this could not be done at common law, because the wife is incapable of contracting with the husband after marriage.'^ § 387. Husband Surviving, Rights of. — When the husband survives, a question arises as to what choses in action he is entitled to. If he take out administration (as we have before seen he had a right to do) he is at common law entitled to all, even to her sole and separate property, as administrator and not as next of kin.^ If he dies before taking out adminis- tration or before collecting the property, it goes to her next of 1 Kussell's Case, Noy, 70; Oglander v. Baston, 1 Vern, 396. 2 Russell's Case, Noy, 70i;. Oglander v. Baston, 1 Vern. 396. 8 Murray v. Lord Elibank, 10 Yes. 91. * Anon. 2 Vern. 707. « 1 Roper, Husb. & Wife, 219. « 1 Roper, Husb. & Wife, 298. 1 1 Roper, Husb. & Wife, 303. 8 Proudley v. Jielder.^ Mjl. & K. .57; BaiiMiJ). Bactlett, 137 Mass. 158. 218 LAW OF EXECUTORS AND ADMINISTRATORS. kin, and not to his executors or administrators.^ In Connecti- cut, by statute, the wife's personal property on marriage be- comes tlie property of the husband in trust for her, and if he survives her he takes it for his life, and after his death it goes to her representatives.^ In all cases where the husband has reduced his wife's chases in action into his own posses- sion, obviously any action must be brought by him, after her death as well as before, in his individual capacity.' There may be cases where both husband and wife perish in the same calamity. In such case, title by survivorship de- pends upon proof of actual survivorship, and there is no presumption one way or the other. If the proof fails, the party whose title depends upon making out the survivorship must fail.* § 388. Statutory Changes. — The foregoing discussion of the assets of the surviving husband or wife is based upon the common-law rules as to their respective rights. In many of the States, however, a woman is by statute allowed to hold her own property separate from that of her husband, and in such cases, of course, the question of title by survivorship be- tween the husband and the wife, or between the personal rep- resentatives of either and the other or of both, does not arise. In such cases, whatever may be the right of the survivor as distributee, the property is all the property of the deceased, and the executor or administrator can take possession of it as such.^ § 389. Partnership Property, Distribution of. — Personal prop- erty of which the deceased was joint owner with others goes to the co-owners, by right of survivorship, for the rule as to sur- vivorship holds in regard to personal property held by joint 1 Betts V. Kimpton, 2 B. & Ad. 273; Hill v. Hunt, 9 Gray, 66. 2 Conn. Gen. Sts. §§ 2792-2794; Sherwood v. Sherwood, 32 Conn. 1; Mason v. Homer, 105 Mass. 116. « Huntley v. Griffith, Moore, 452. * Fuller V. Linzee, 135 Mass. 468 ; Wing v. Angrave, 8 H. of L. Cas. 183. ' See Appendix of Statutes; Bartlett v. Bartlett, 137 Mass. 158; infra, § 476, et seq. ASSETS OF THE ESTATE. 219 owners as well as to real estate.^ Partnership property, how- ever, does not follow this rule, but goes to the executors or ad- ministrators of the deceased. This exception is a branch of the mercantile law, and is considered to be for the advancement of trade.^ But in Massachusetts this rule does not hold, and all partnership property goes to the surviving partner .^ Yet not absolutely, but only so far as to enable him to reduce the effects to money and pay the debts. After doing this he must account to the representatives of the deceased for the money.* And in Maine and several of the Western States, the partner- ship affairs are settled in the probate court by the adminis- trators or executors of the deceased partner.^ The English rule as to partnership property extends to all traders, in- cluding manufacturers,^ and possibly to all persons engaged in joint undertakings in the nature of trade.'^ Thus if two take a lease of a farm jointly, and one dies, the lease survives to the survivor, but the stock on the farm belongs partly to the representatives of the deceased.* So where money due on a joint mortgage is paid, one of the mortgagees having died, his share must be paid to his representatives.^ As to what may be done in the way of settling up the partnership estate by the representatives of the deceased, the subject will be considered later. 1 Swinb. Pt. III., § 6, pi. 1; Co. Litt. 182a; Harris v. Ferguson, 16 Sim. 308. 2 Swinb. Pt. III., § 6, pi. 1; Hex v. Collectors of Customs, 2 Mau. & Sel. 225; Cook v. Lewis, 36 Me. 342. » Bush V. Clark, 127 Mass. 112. * Dyer v. Clark, 5 Met. 562. s Cook V. Lewis, 36 Me. 342. See Appendix of Statutes. e Buckley v. Barber, 6 Ex. 164. ' Hammond v. Jethro, 3 Brownl. & Gold. 99. ' Jeffereys v. Small, 1 Vern. 217. » Petty V. Sty ward, 1 Ch. Kep. 31. 220 LAW OP EXECUTORS AND ADMINISTRATORS. CHAPTER XIV. DUTIES OP EXECUTORS. •390. 331. 392. 393. 394. 395. 397. 398. 399. 400. 401. 402. 403. 404. 405. 406. Preference of Debts. Funeral Expenses. Allowance of Gravestones and Monuments, Amount of Expenditures. Expenses of Last Illness. Taking out Administration. Debts due the United States ; Taxes; Judgments. Judgment Debts ; Record Debts. Servants' Wages. Rent. Interest. Liens ; Mortgages ; Specialty Debts. Valid Debts only Payable. Liability for paying Ordinary Debt before Preferred Debts. Payment of Preferred Debts. Time allowed for Collecting Debts. Statutory Provision for Payment. i 407. Recovery of Payment under these Statutes. 408. Statutes relating to Insolvent E.states. 409. Insolvent Estates. 410. Same subject. 411. Same subject. 412. Contingent Claim against In- solvent Estate. 413. Effect of Insolvency Proceedings on Suits at Law. 414. Same subject. 415. Effect of Insolvency Proceedings on Creditors' Claims. 416. What Claims are provable. 417. Claims of Secured Creditors. 418. Rent, Interest. 419. Limitation; Removal to Federal Court. -420. Debts due to the Administrator or Executor. § 390. Preference of Debts. — The primary (Juty of an ex- ecutor is to pay the debts due from the estate. The debts of the estate have various ranks at common law, and some are entitled to preference over others, thus rendering it necessary for the executor or administrator to satisfy them in full before the others are paid. The debts which are entitled to pay- ment above all others at common law and immediately, second only in some States to the widow's allowance, are generally the funeral expenses and the costs of the last illness.^ § 391. Funeral Expenses. — The first duty of an executor or administrator is to bury the deceased in a manner suitable 1 Mass. Pub. Sts. c. 135, § 3; c. 137, § 1; 2 Bl. Com. 508; and see Appendix of Statutes. DUTIES OP EXBCTTTORS. 221 to the estate which he leaves behind him. Necessary funeral expenses are allowed previous to all other debts and charges ; but if the executor or administrator be extravagant, it is a species of devastavit or waste of the substance of the de- ceased, and shall only prejudice the executor or administrator, and not the creditors and legatees.^ This species of debt or rather of charge upon the estate is first in point of priority.^ The amount which will be allowed by the court in paying for the funeral varies greatly with the pecuniary condition of the dieceased.^ If the estate is insolvent, it was held in England that no expenses should be allowed except for coffin, shroud) and ringing the bell> fees for parson, clerk, sexton, and bear- ers, but not for pall or ornaments, or expenses of entertain- ment.* At the present time the expenses of digging and filling the grave are held to be among the necessary funeral expenses.^ And if the deceased died away from home the expense of transportation to his home and of a person to at- tend such transportation has been held a necessary expense.^ § 392. Allo-wance of Gravestones and Monuments. — Whether a gravestone may be properly put at the grave by an executor or administrator does not seem to be settled, when the estate is insolvent. In New Hampshire the courts decide that in Such case it is not a necessary funeral expense, and will not be allowed to the executor or administrator;^ in Connecticut it was said that none could be allowed when not approved pre- vious to erection by the probate court;* and in Massachusetts^ although it is now by statute allowed, if erected by an adminis- 1 2 Bl. Com. 508; Wilson v. Shearer, 9 Met. 50T; Smllivan v. Horner, 41 N. J. Eq. 300. « Sullivan v. Homer, 41 N. J. Eq. 300; Booth *, K&dford, 57 Mich. 357; and see Appendix of Statutes. « Sullivan v. Horner, 41 N. J. Eq. 300. ♦ Per Holt, C. J., 1 Salk. 296; per Ld. Hardwicke, 3 Atk. 119. * Fairman's App., 30 Conn. 20i5. « Sullivan v. Horner, 41 N. J. Eq. 300 ; Hasler v. Easier, 1 Bradf . 248. ' Brackett v. Tillotson, 4 N. H. 208-210. 8 Fairman's App., 30 Conn. 205, 209. 222 LAW OP EXECUTORS AND ADMINISTRATORS. trator or executor, yet it is held not to be a necessary funeral expense at common law.^ In a case in Pennsylvania, such an expense was held allowable even against creditors.^ If the estate is solvent, there seems to be no doubt that a gravestone suitable to the condition of the deceased is a proper funeral expense, and statutes to this effect have been enacted in many States.3 § 393. Amount of Expenditures. — No rule can be laid down as to the amount of money which the executor or administra- tor would be justified in expending on the funeral expenses. In every case, the probate court passes upon the propriety of this expenditure ; but probably expenses incurred in good faith by an executor or administrator, and not obviously extrava- gant, would be allowed when the estate is solvent.* If the administrator does not order the funeral himself, but some one else does, and incurs expense for it, this other person may sue upon the implied promise of the executor or administrator to pay the reasonable funeral expenses.^ If the administrator or executor orders the funeral expenses, or ratifies and adopts the acts in this respect of another, he is liable personally for the expenses, and not in his representative capacity, but may charge the amount paid by him in his account ; ^ and in Massa- chusetts the action against an executor or administrator for funeral expenses may be brought immediately, without wait- ing for the year to elapse, since it is a claim not affected by the insolvency of the estate.'^ These funeral expenses are a 1 Sweeney v. Muldoon, 139 Mass. 307. 2 Porter's App., 51 Leg. Intel. 338. s Porter's Est., 77 Pa. St. 43; Tuttle v. Robinson, 33 N. H. 104, 117; Ferrin u. Myrick, 41 N. Y. 315; Wood v. Vandenburgh, 6 Paige, 277, 285; Sweeney v. Muldoon, 139 Mass. 306; Pistorius's App., 53 Mich. 350. * McGlinsey's App., 14 Serg. & R. 64; Sullivan v. Horner, 41 N. J. Eq. 300. ^ Sweeney u. Muldoon, 139 Mass. 306; Hapgood v. Houghton, 10 Pick. 154; France's App., 75 Pa. St. 220; Sullivan v. Horner, 41 N. J. Eq. 300. ^ Sweeney v. Muldoon, 139 Mass. 306 ; Luscomb v. Ballard, 5 Gray, 405. ' Studley v. Willis, 134 Mass. 155. DUTIES OP EXECUTORS. 223 prior claim on the separate estate of a married woman, as in case of a man,^ § 394. Expenses of Last Illness. — In many States by statute, the funeral expenses are extended so as to include the expense of the last illness of the deceased.^ The question whether the expenses claimed were incurred in the last illness of the deceased is a question of fact, and is for the jury if the case comes before that tribunal ; otherwise it is for the court. It has been said that any illness which terminates in death may be so called.^ All sums paid for the expenses of the last ill- ness are of equal degree, and should be paid ratably, if there is a deficiency of assets.* But in New Jersey it has been held that the physician's bill should be paid before the funeral expenses.^ § 395. Taking out Administration. — The next debts in or- der of preference are those which arise from the taking out of administration. It is the duty of every one who is appointed executor to prove the will.® The expenses of this proof, or of taking out letters of administration, are preferred to all other debts except those already enumerated.'^ § 396. Debts due to the United States ; Taxes ; Judgments. — Another class of debts which is next preferred in payment is those due to the United States. It is enacted by United States statute that when the estate is insufficient to pay all debts, those due to the United States shall be first satisfied, and if the administrator or executor does not follow this rule 1 McClellan v. Filson, 44 Ohio St. 184. 2 Mass. Pub. St. c. 137, § 1; Wilson v. Shearer, 9 Met. 507; Huse v. Brown, 8 Greenl. 167; Flitner v. Hanly, 18 Me. 271; Bright. Purd. Dig. Deced. Est., § 94; Reese's Est., 2 Pears. 482; N. J. Bev., Orphans' Court, 58; Ohio Rev. St. § 6090; McClellan v. Filson, 44 Ohio St. 184; and see Statutes in Appendix. » Huse V. Brown, 8 Me. 169. * Bennett v. Ives, 30 Conn. 329. s Fowler v. Colt, 7 C. E. Gr. 44. » 2 Bl. Com. 508. ' Mass. Pub. Sts. c. 135, § 3; c. 137, § 1; and see also Appendix of Statutes for the statutes of the various States. 224 LAW OP EXECUTORS AND ADMINISTRATORS. he becomes personally liable ; ^ and this priority is generally, provided for by the statutes of the States, some States making: their debts preferred to all others, others ranking them after funeral expenses and costs of administration.^ But this pri- ority gives no lien upon the goods or estate of the deceased, but is. only a direction for the payment of the estate by the executor or administrator.* In most of the States, public.dues or dues to the State, such as taxes or excise duties, are also given a preference next after the claims already examined.* In Pennsylvania, how- ever, debts due to the Commonwealth are to be paid last,^ and in New Jersey no preference is given them.® In regard to other debts, in the majority of the United States they are all regarded as on an equality, and to be paid, as will be seen, proportionately, if the assets are insufficient to pay all.^ § 397. Judgment Debts ; Record Debts. — In some of ihe States, however, the judgment debts and dehts of record are given the preference over simple contract debts on bonds, -etc. Thus in New Jersey a judgment entered of record in the lifetime of the decedent is entitled to preference.^ And in Maryland a judgment comes next after taxes and rents.^ In New York preference is given to judgments docketed and decrees enrolled, over other debts, and, as among themselves, a prior judgment is preferred to a later one ; but there is no preference among other debts. ^^ Under this statute an award 1 U. S. Rev. Sts. §§ 3466, 3467; United States e. Fisher, 2 Cranch, 358. * See statutes, infra, Appendix-of Statutes. « Brent v. Bank of Washington, 10 Pet. 596. * See Appendix of Statutes; Bulfinch v. Benner, 64 Me. 407; Stater. Hiohborn, 67 Me. 504; 3 N. T. Rev. Sts. p. 2298, § 27; Md. Rev. Code, art. 50, § 173; Ohio Rev. St. § e090. 6 Bright. Purd. Dig., Deced. Est., § 94. * 4 Grif . L. Reg., 1282, note 2. ' Bennett v. Ives, 30 Conn. 335; R. I. Pub. Sts. e. 186, § I> Me. Rev. Sts. c. 66, § 1; Mass. Pub. Sts. c. 137, § 1. « N. J. Rev. Orphans' Court, § 58. » Md. Rev. Code, art. 50, § 173. i» 3 N. Y. Rev. Sts. pp. 2298, 2299, § 27. DUTIKS OP EXECUTOES. 225 jnade upon arbitration submitted to by executors does not give any priority of claim.^ Nor does a judgment against an executor or administrator, but only against the deceased.^ § 398. Servants' 'Wages. — In some States, servants' wages for not more than one year are also given a preference over ordinary contract debts. These are put directly after the expenses of the funeral and last illness.* The Pennsylvania statute has been said to be intended to embrace domestics and menial servants,* and it has been held to include a bar- keeper.^ The year's wages, in Pennsylvania, need not be for the year immediately preceding the death of the testator or intestate.^ But in Massachusetts the statute prescribes that the wages must be for the last year preceding the deceased's death, and must not amount to more than one hundred dollars.'^ § 399. Rent. — A claim for rent is in some States given a priority to some other claims. Thus in Pennsylvania it takes precedence over ordinary debts for one year.^ And in New York the surrogate may give it precedence, if he thinks it is for the good of the estate.^ But, in the absence of special circumstances, it is not a preferred debt.^" In Maryland any rent in arrears, for which a distress might be levied, is pre- ferred to all claims except for taxes. ^^ § 400. Interest. — As between preferred debts of the same class, all rank alike, and are to be paid proportionately.^^ » Wood V. Tunnicliff, 74 N. Y. 45. « Fliess V. Buckley, 90 N. Y. 292. 8 Bright. Purd. Dig., Deoed. Est., § 94; Mass. Pub. Sts. c. 137, § 1 ; and see Appendix of Statutes. * Meason, Ex p. 5 Binn. 167. 6 Boniface v. Scott, 3 Serg. & R. 351. • Martin's App., 33 Pa. St. 395. "> Pub. Sts. c. 137, § 1. * Bright. Purd. Dig., Deced. Est., § 94; and see Appendix of Statutes. • 3 N. Y. Rev. Sts. p. 2299, § 30. " Cooper V. Felter, 6 Lans. 485. " Md. Rev. Code, art. 50, § 173. « Ritter's Est., 11 Phila. 12; Bennett v. Ives, 30 Conn. 329. 15 226 LAW OF EXECUTORS AND ADMINISTBATOES. These preferred debts carry also interest upon them, in pref- erence to other debts.^ And it may be said, in anticipation of what will be more fully examined when considering the sub- ject of the priority of debts to legacies, that as against heirs and legatees, creditors are entitled to interest upon their debts until they are paid, or, in case of an insolvent estate, until the time of the decree of distribution of the court.^ § 401. Liens ; Mortgage ; Specialty Debts. — A species of preference in particular cases exists, where a creditor has a lien upon a specific piece of property for the payment of his debt. In such a case, if the lien is not dissolved by the death of the owner of the property, the holder of the lien is so far preferred that he may satisfy his debt out of the prop- erty to which the lien applies. ^ Thus one who has a me- chanic's lien upon land and buildings may enforce it against the heirs into whose hands it comes.* But this is not true if the lien is dissolved by the death of the owner of the prop- erty. Thus in Maine it was held that a person who has a mechanic's lien upon houses and lands could not prosecute the lien against the executors and administrators, and obtain payment of his debt out of the property, but was obliged to come in pro rata with the other creditors.^ But, by statute, the lien is now continued for its full term, notwithstanding the death of the lien debtor.® In those States where judg- ments form a lien upon the real estate, the priority of debts as established by statute does not postpone judgment liens, although judgments have no priority by the statute.^ So, a mortgage debt continues a lien after the mortgagor's death, and only the equity is assets of the estate.^ 1 Shultz's App., 11 Serg. & R. 182. ^ Williams v. American Bank, 4 Met. 320. « Mass. Pub. Sts. c. 191, § 37. * Foster v. Stone, 20 Pick. 542. * Severance v. Hammett, 28 Me. 520. « Sts. 1850, c. 159. ' Wade's App., 29 Pa. St. 329. 8 Abby V. Fuller, 8 Met. 39. DUTIES OF EXECUTOES. 227 In few, if any, of the United States does the old rule of the common law prevail, that debts by specialty, that is, debts on bonds, covenants, and other instruments under the seal of the party, must be paid by an executor or administrator before debts by simple contract.^ And even in England, by statute,^ specialty debts are put upon the same footing as simple con- tract debts. § 402. Valid Debts only payable. — The executor or admin- istrator is of course not bound to pay anything except legal debts of the deceased. Thus, if the deceased was an infant, the executor need not pay a claim against him which is not for necessaries,^ or a supposed liability as stockholder in an insolvent corporation.* In payment of debts, of course the fund which is primarily responsible is the personal property, and secondarily the real estate, under the statutory power given to the executor or administrator by statute.^ But in cases of testacy the testator may, by his will, vary the liabil- ity for debts, by exempting one portion of his property and charging another.^ This subject and the kindred one of marshalling the assets, belong more properly to the subject of the construction of wills, which will not be fully treated in this work, although reference will be made to them later. An example of the statutes in reference to the payment of debts exists in Massachusetts. When the estate of a deceased person is not sufficient to pay all debts in full, the order of payment of debts, after discharging the necessary expenses of the funeral (and as part of the funeral expenses a reason- able sum expended for a burial lot and for a monument, may be allowed by the court '^) and last sickness of the intestate, and the charges of administration, is as follows : — 1 Pinchon's Case, 9 Co. 88 6 ; Wms. Ex'rs, 1010. 2 32 & 33 Vict. e. 46. * Smith V. Mayo, 9 Mass. 62 ; Hussey v. Jewett, 9 Mass. 100. * Eipley v. Sampson, 10 Pick. 371. ^ Hays V. Jackson, 6 Mass. 149; Lee, Ex p. 18 Pick. 293. « Lee, Ex p. 18 Pick. 288. ' Pub. Sts. c. 144, § 6. 228 LAW OF EXECUTOBS AND ADMINISTRATOBS. First. Debts entitled to a preference under the laws of the United States;^ and by statute of the United States all debts due to the United States shall be satisfied before any other debt, and every executor or administrator who pays any debt before he pays the debts due to the United States, shall be answerable in his own person and estate for so much of the debt due to the United States as may remain due and unpaid.^ Second. Public rates, taxes, and excise duties. Third. Wages or compensation, to an amount not exceed- ing one hundred dollars, due to a clerk, servant, or operative for labor performed within one year next preceding the death of such deceased person, or for such labor so per- formed, for the recovery of payment for which a judgment has been rendered. Fourth. Debts due to all other persons. If there is not enough to pay all the debts of any class, the creditors of that claim shall be paid ratably upon their respective debts, and no payment shall be made to creditors of any class, until all those of the preceding class, or classes, of whose claims the executor or administrator has notice, have been fully paid.^ § 403. Ijiability for paying Ordinary Debt before Preferred Debts. — The foregoing remarks apply to the order in which debts are to be paid. This order is not so important, of course, when there is enough estate to pay all debts in full. But if there is not enough estate for this purpose, it becomes important that the executor or administrator should proceed in the appointed order, for if he pays a debt of a lower order, he is obliged at common law to answer to a pre- ferred creditor of whose claim he had notice, out of his own estate.* But those preferred debts of which he had no notice, he was not even at common law obliged to satisfy 1 Pub. Sts. c. 137, § i, cl. 1. » U. S. Rev. Sts. §§ 3466, 3467. 8 Pub. Sts. c. 137, § 1. * Wms. Ex'rs, 1029. DUTIES OP EXECUTOES. 229 out of his own estate, in such case ; for otherwise it would be in the power of a superior creditor to ruin an executor, by suppressing his security until all the assets were exhausted in the payment of debts of an inferior degree.^ § 404. Payment of Preferred Debts. — In the United States, the whole subject of the mode of payment of debts is care- fully regulated by statute, and for the details of this subject the reader must be referred to the statutes of eadi particu- lar State, while in the appendix of statutes the more impor- tant statutes will be found. The debts which are generally considered preferred have been already enumerated. Each class is regularly to be paid in full before the one next below it, or if there is not enough to pay the class in full, each debt of the class is to receive the same proportion of its full amount.^ If an executor or administrator, exhausts the es- tate paying preferred debts, he is not at common law, nor gen- erally by statute, liable for any common debts, and may plead this fact in bar of an action ; and so of any suit on a debt of lower degree when a higher class exhausts the estate.^ It has fuz'ther been enacted by statute in some States, for example, in Massachusetts, as a protection to the executor or administrator, that if his account shows that all the estate has been exhausted in paying the charges of administration, and debts or claims entitled by law to preference over common creditors, such an account, if settled in the probate court, is a sufficient bar to an action by a non-preferred creditor against the executor or administrator, although the estate has not been represented insolvent.* § 405. Time Allowed for Collecting Debts. — In pursuance of the general plan which is adopted in the United States, 1 Mayo V. Bentley, 4 Call, 528; Harman v. Harman, 2 Show^ 492; Place V. Oldham, 10 B. Mon. 400; 3 Bac. Abr. 82, tit. Ex'rs, L. 2. « Mass. Pub. Sts. o. 137, § 1 ; Bennett v. Ives. 30 Conn. 335. » Wentw. Ofi. Ex., 261, 14th ed. * Mass. Pub. Sts. c. 136, § 5. 230 LAW OP EXECUTORS AND ADMINISTEATORS. of gathering in all claims against an estate and paying them all at the same time, so far as may be, and in the same pro- portion, except as to preferred claims, there are enacted in most States statutes which exempt an executor or ad- ministrator from liability to suit for a given time, in order that he may have an opportunity to collect the claims against the estate, and get an idea of whether the estate is solvent or not.^ Thus, in Massachusetts, it is enacted that no ex- ecutor or administrator shall be held to answer to a suit by a creditor of the deceased which is commenced within one year after his giving bond for the discharge of his trust, unless such suit is for the recovery of a demand that would not be affected by the insolvency of the estate, or unless it is brought, after the estate has been represented insolvent, for the purpose of asserting a contested claim.^ § 406. statutory Provisions for Payment. — The administrator thus having collected the claims against the estate during the time within which he is free from liability to suit, he is by statute in many States allowed, if the estate at the end of that time seems to be solvent, to pay out the assets in paying such claims as have been presented. Thus it is pro- vided by statute, in Massachusetts, that an executor or ad- ministrator who has given notice of his appointment, may, if he does not within one year thereafter have notice of de- mands that authorize him to represent the estate to be insol- vent, proceed, after the expiration of the year, to pay the debts due from the estate, and shall not be personally liable to any creditor in consequence of such payments made before notice of such creditor's demand ; ^ and if the executor or ad- ministrator pays away in this manner, before notice of the demand of any other creditor, the whole estate and effects of the deceased, he shall not be required in consequence of 1 N. J. Rev., Orphans' Court, § 57 ; Pa. Bright. Purd. Dig., Deced. Est., § 95; and see Appendix of Statutes. 2 Mass. Pub. Sts. c. 136, § 1. s Mass. Pub. Sts. c. 136, § 2. DUTIES OP EXECUTORS. 231 such notice to represent the estate insolvent, but if an ac- tion is brought against him he shall be discharged on prov- ing such payments.^ Again, if an executor or administrator pays away in such manner so much of the estate that the remainder is insuf- ficient to pay a demand of which he has afterwards notice, he is only liable on such demand for the remaining assets in his hands. If there are two or more such demands, which together exceed the amount of assets in his hands, he may represent the estate insolvent, and shall divide and pay over according to the decree of the court the remaining assets among such creditors as prove their claims under the com- mission of insolvency, but the creditors of the deceased who have already been paid in full are not obliged to refund any part of the amount received by them.^ § 407. Recovery of Payment under these Statutes. — Under these statutes, if an executor or administrator within the first year pays a debt not preferred in full, believing that the estate is solvent, and it is afterwards declared insolvent, and a dividend declared, the executor or administrator can re- cover the difference between the dividend and the amount paid, because the payment was one which he was not author- ized to make, and which he will be personally liable for.^ But if he pays such a debt after the expiration of one year, and has not had notice of debts enough to render the estate insolvent, he cannot recover back any part, since he is no longer liable himself for the assets and the payment is authorized by the statute.* § 408. statutes relating to Insolvent Estates. — There are also numerous statutory provisions for the settlement of es- tates which are insolvent, on the general plan of similar pro- 1 Mass. Pub. Sts. c. 136, § 3. " Mass. Pub. Sts. c. 136, § 4; and see Appendix of Statutes. » Walker v. Hill, 17 Mass. 380; Bliss v. Lee, 17 Pick. 83; Head v. Drake, 4 Gray, 516 ; Flint v. Valpey, 130 Mass. 387. « Colegrove ». Kobinson, 11 Met. 238. Cf . iV". §§ 487, 488. 232 LAW OP EXECUTOES AND ADMINISTRATORS. ceedings in bankruptcy or insolvency.^ It would of course be impossible in a work limited as this is, to give a complete account of these statutes, and for the details in any particular State the reader must be referred to the statutes of that State, many of which will be found in the appendix of statutes at the end of this volume. The main features, however, of these statutes are similar, and a good example is found in the stat- ute of Massachusetts, which provides that when it appears to the probate court from the representations of an executor or administrator that the estate of the deceased will probably be insufficient for the payment of his debts, the court may ap- point two or more persons to be commissioners to receive and examine all claims of creditors against the estate, and to re- turn a list of all claims laid before them, and the sum allowed on each. These commissioners are sworn to the faithful dis- charge of their duties, and appoint times and places for meet- ings to prove claims, and give notice thereof to all known creditors, being furnished with a list of them by the executor or administrator, and after receiving all claims presented dur- ing the time allowed for the proof of claims, make a return to the court. The commissioners may administer oaths, and may require any claimant to answer under oath an examina- • tion in reference to his claim, under pain of having his claim disallowed. The court may appoint new commissioners, upon the death or removal of any of the original commissioners. It may also act as commissioner itself without appointing any original commissioners. Six months are allowed for creditors to prove their claims, but if a new commissioner is appointed, six months' extension is prescribed, and the court may extend the time whenever it considers it necessary. All creditors not presenting their claims are barred except as to new assets.^ 1 N. J. Rev., Orphans' Court, §§ 83, 84, et seq. ; Pa. Bright. Purd. Dig., Deoed. Est., § 213; Conn. Gen. Sts. §§ 571, 584-593; R. I. Pub. Sts. c. 186; Me. Rev. Sts. o. 66; and see Appendix of Statutes. 2 Mass. Pub. Sts. c. 137, §§ 2-10. DUTIES OF ESECUTORS. 233 § 409. Insolvent Estates. — Any person whose claim is wholly or partially disallowed, or any executor, administra- tor, heir, legatee, devisee or creditor, who is dissatisfied with the allowance of a claim, may, within thirty days from the return of the commissioners, appeal to the Supreme or Su- perior Court of the county in which the administration is granted, according to the value of the demand, and the case then proceeds as if brought at law by the creditor against the executor or administrator .^ After the expiration of the time allowed for appeals, the probate court may make a decree of distribution, making allowance for appeals pending, so as to retain enough to pay the appellants a proportionate sum equal to the dividend of other creditors. If this decree does not exhaust the assets, the court may make further decrees.^ Partnership and individual claims are to be kept on separate lists, and the estate is to be distributed as is provided by the statutes relating to insolvent debtors.^ § 410. Insolvent Estates. — If the assets are sufficient to pay all claims proved, the executor or administrator may pay them in full, and for any debts thereafter recovered against him he shall be liable only for the assets remaining in his hands. In an action brought against him on such a debt, the executor or administrator may prove the amount of assets in his hands, and the judgment shall be rendered in the usual form, but execution shall be limited to the amount of such assets.* § 411. Insolvent Estates. — If there are two or more judg- ments, they shall have proportionate amounts of the remain- ing assets. After twenty years from the decree of distribution of an insolvent estate, the probate court, upon application by a creditor whose claim was proved and allowed, and due 1 Mass. Pub. Sts. c. 137, §§ 11-17. 2 Mass. Pub. Sts. o. 137, §§ 18-20. 8 Mass. Pub. Sts. c. 137, § 21; c. 157. * Mass. Pub. Sts. c. 137, §§ 22-24. 234 LAW OP EXECUTORS AND ADMINISTEATOES. notice, may order any unclaimed dividends and the accrued interest to be divided among those creditors who have re- ceived their dividends. If there is still a surplus, after paying such creditors and interest, it shall be distributed among the heirs of the estate. If a creditor who has not received his dividend has died, an administrator to receive the dividend may be appointed at any time before the decree distributing the unclaimed dividends is passed, although more than twenty years has elapsed since the creditor's death.^ § 412. Contingeut Claims against Insolvent Estates. — If at the expiration of the time for proving claims a person is lia- ble as surety for the deceased, or has any other contingent claim against his estate which could not be proved as a debt within that time, the court shall, upon proof of those facts, in ordering a dividend leave in the hands of the executor or ad- ministrator a sum sufficient to pay such contingent creditor a proportion equal to what is then to be paid to other creditors ; and if the claim becomes absolute within four years from the giving the administrator's bond, it may be proved and allowed by the commissioners, and paid in the same proportion as the other claims, so far as this can be done without disturbing the former dividend. If the claim is not established, or if a surplus of assets remains after paying it in proportion to the other dividends, the residue is to be divided among all credit- ors who have proved their debts.^ § 413. Effect of Insolvency Proceedings on Suits at La'w. — In New Jersey the appointment of commissioners is omitted, ani the claims are proved before the executor or administrator, who reports them to the probate court.^ The statutes gener- ally provide for the referring of disputed claims to a court of common law, in order to save to the parties their right of trial 1 Mass. Pub. Sts. c. 137, §§ 25, 26. 2 Mass. Pub. Sts. c. 137, §§ 28-30. » N. J. Rev., Orphans' Court, §§ 83, 84. See Appendix of Statutes. DUTIES OF- EXECUTORS. 235 by jury,^ and that any suit pending or afterwards brought sliall proceed only so far as judgment, but no execution shall be taken out.^ § 414. Effect of Insolvency Proceedings on Suits at Law. — If a suit is pending, a representation of insolvency should be made previous to judgment, for if the executor or adminis- trator allows the suit to progress to judgment, without deny- ing that he has assets sufficient to satisfy the judgment, he is considered to have admitted such assets ;3 and the mere fact that the estate is insolvent does not interfere with any action until proceedings are actually begun in the probate court un- der the statutes.* In those States where, as has been already seen, a statute provides for a notice to creditors to exhibit their claims within a certain time, an executor or adminis- trator may, after obtaining such an order, represent the estate insolvent.^ § 415. EfEect of Insolvency Proceedings on Creditors' Claims. — Under these and similar statutes it is held that these pro- ceedings are a complete bar to any creditor who has not proved his claim under them, unless the statute provides for further dividends if further assets accrue to the estate.^ In New Jersey this rule extends even to preferred creditors, who are required to establish their claims under oath,, or be barred.^ In other States the insolvency proceedings are held to apply only to common creditors.* In Pennsylvania, where the Com- 1 N. J. Rev., Orphans' Court, § 87. 2 N. J. Rev., Orphans' Court, § 88; Taylor v. Volk, 9 Vroom, 204; Union Nat. Bk. v. Poulson, 11 Vroom, 284; Mass. Pub. Sts. c. 137, §§ 31-33; Greenwood v. McGilvray, 120 Mass. 516. 8 Newcomb v. Gross, 1 Met. 333; Thurlough v. Kendall, 62 Me. 167. 4 Dibble v. WoodhuU, 4 Zabr. 618. * Von Arx v. Wemple, 14 Vroom, 154. « Ostrom V. Curtis, 1 Cush. 467; N. J. Rev., Orphans' Court, § 94; Vandyke v. Chandler, 5 Halst. L. 49. ' Fogg's Case, 37 N. J. Eq. 238. 8 Mass. Pub. Sts. c. 136, § 1; Troy Nat. Bank v. Stanton, 116 Mass. 236 LAW OP EXECUTOES AND ADMINTSTEATORS. monwealth's debts are paid last, the insolvent proceedings apply to such claims.^ The limitation of time is generally construed strictly. No claim filed after it has expired can be allowed.^ In those States where the statute provides that if new assets accrue to the estate a creditor not originally proving in insolvency may follow them, the decision of the judge of probate that new assets have accrued to the estate is conclusive of this question, except upon a direct appeal from his decision. It is too late to raise this question, upon an appeal from the commissioners' decision allowing a cred- itor's claim, under a reopened commission.^ In any case, when the estate is sufficient to satisfy more than the pre- ferred claims, the executor or administrator must declare the estate insolvent, if he wishes to be protected from paying the other debts,* and if he pays a debt (not preferred) in full when the estate is insolvent, he is liable personally to the other creditors for the amount so paid.* § 416. VThat ClaimB are Provable. — As to what claims in particular may be proved against the insolvent estate, it may be said that debts which are certainly due, but at a future day, have always been held provable,^ even though they may be payable in instalments.' Contingent liabilities are pro- vided for by statute generally, as is above shown in the statute of Massachusetts.^ In the absence of such a statute, as in Massachusetts previous to its enactment, it has been 439; State v. Hichborn, 67 Me. 504; Flitner v. Hanley, 19 Me. 261; McLean v. Weeks, 65 Me. 411. 1 Mitchell's Case, 2 Watts, 87. , 2 Gould V. Tingley, 1 C. E. Gr. 501. 8 Ostrom V. Curtis, 1 Cush. 467. < Ludwig V. Blackinton, 24 Me. 25. 5 Cobb V. Muzzey, 13 Gray, 58. ' Eaton y. Whitaker, 6 Pick. 465; Haverhill Loan, etc. Assoc, v. Cronin, 4 Allen, 141; 3 N. Y. Rev. Sts. p. 2299, § 29 (with a rebate of interest). ' Haverhill Loan, etc. Assoc, v. Cronin, supra. 8 Mass. Pub. Sts. c. 137, §§ 28-30; and see Appendix of Statutes. DUTIES OP EXECUTORS. 237 held that a contingent liability is not provable against the estate.^ A liability as surety on a promissory note is held not to be a contingent liability under this statute, nor is an uncertainty whether or not as a question of law a debt is justly due sufficient to aUow the creditor to prove under this statute, and await the end of a lawsuit to determine the question. It is only a valid claim which depends upon a contingency, and which the creditors cannot reduce to a certain claim by a payment of money, that is witliin this statute.^ Debts which are contracted subsequent to the death of a partner, by the other partner carrying on the business, under an agreement made between them that if one should die the other might carry on the business, are not provable against the insolvent estate of the deceased partner.^ If a wife mortgages her separate estate to secure a debt of her husband, and pays the debt after his death, to exonerate her estate, she is entitled to prove the debt.* § 417. Claims of Secured Creditors. — As to a creditor hold- ing security given to him by the debtor, he can only prove for the surplus of his debt over the value of the security, unless he surrenders the security ; ^ but if the security is given by a third person, not the debtor, — for example, by the debtor's wife, — the creditors may prove for the whole claim.® If a mortgage is given by a debtor who holds the record title, although he has previously conveyed to another, yet the mortgage is furnished by the debtor, and the creditor must surrender, or prove only for the surplus.^ § 418. Rent ; Interest. — Rent due at any time before the 1 Harding ». Smith, 11 Pick. 478. Cf. infra, § 484. " French v. Hayward, 16 Gray, 513; Cummings v. Thompson, 7 Met. 132:; Sears v. Mills, 7 Allen, 430; Greene v, Dyep, 32 Me, 460. 8 Stanwood «. Owen, 14 Gray, 199. * Savage v. Winchester, 15 Gray, 454. 6 Amory », Francis, 16 Mass. 308. * Savage v. Winchester, 15 Gray, 454. ' Bristol County Savings Bank v. Woodward, 137 Mass. 412. 238 LAW OP EXECUTORS AND ADMINISTRATORS. commission is closed may be proved, but not a claim for rent which may become due under a lease after that time, if the executor or administrator chooses to continue under the lease.^ And now, by statute in most States, rent may be ap- portioned so that the rent due up to the date of the death of the deceased may be in any case recovered.^ Interest should be allowed on debts up to the time of the decree of distribution, as against the heirs and legatees.^ It seems that in Mas- sachusetts the only debts which can be proved are legal claims, as distinguished from equitable.* § 419. Limitation ; Removal to Federal Court. — As a gen- eral rule, the statutes of limitations are not suspended by the provisions of the insolvent estates statutes, but continue to run against the creditors ; ^ but there is one exception, that is, that as to any creditor who has not proved his claim in these proceedings, the statute of limitations does not apply, if new assets accrue to the estate, for until new assets accrue he is unable to sue on his claim, and when the new assets do accrue he may proceed in" the manner prescribed by the stat- ute in the probate court, regardless of the statute of limita- tions, so far only, however, as these new assets are concerned.^ A proceeding in insolvency is not a proceeding which can be removed to the United States Circuit Court, under act of Con- gress.^ Statutes exist in most of the States similar to the Massachusetts statute in their main object and provisions, though differing in detail. The statutes of each State must of course be consulted in every instance, for the practice of 1 Deane v. Caldwell, 127 Mass. 246. 2 Mass. Pub. Sts. c. 121, § 8; 3 N. Y. Rev. Sts. p. 2302; Laws, 1875, c. 542. ' Williams v. American Bank, 4 Met. 320; Dodge v. Breed, 13 Mass. 537. * Deane v. Caldwell, 127 Mass. 246. ' Blanchard v. Allen, 116 Mass. 449; Aiken v. Morse, 104 Mass. 282. » Ostrom V. Curtis, 1 Gush. 467; Aiken v. Morse, 104 Mass. 282. ' U. S. Sts. 1867, c. 196 ; DuVivier v. Hopkins, 116 Mass. 125. DUTIES OF EXECUTORS. 289 the state ; but the general principles are sufficiently outlined by the foregoing remarlis.^ § 420. Debts due to the Administrator or Executor. — If a debt is due to the executor or administrator, he might at common law retain it out of the assets, in priority to any other of the same degree.^ But by statute generally now, if the estate is insolvent, his claim goes before the com- missioners with all the others.^ Statutory provisions exist for the ascertainment of the amount of an executor's debt, when it is disputed by any one interested in the estate. Thus in Massachusetts, if a debt claimed by an executor or adminis- trator as due to him from the deceased, is disputed by any person interested in the estate, the claimant shall file in the probate court a statement of his claim in writing, setting forth fully and distinctly the nature and grounds thereof, and the same may then be submitted to arbitrators by the court, as at common law. If their award is accepted, it is final and conclusive. If the parties do not agree on arbitrators, or if the award is not confirmed by the court, the court must de- cide the claim on such evidence as may be presented to it. On appeal to the Supreme Court, either party or the court may have the claim submitted to a jury on an issue made up by the court, and the verdict is conclusive.* This statute applies only to those claims which the ex- ecutor or administrator has in his private capacity. His claim against the estate as administrator or executor cannot be thus referred.^ And in most of the United States, the ex- ecutor or administrator is obliged to retain his debt subject to all the rules which govern the payment of the debts of others, and -must account for it in his accounts, in the same 1 Conn. Gen. Sts. §§ 571, 584-593; R. I. Pub. Sts. o. 186; Me. Rev. Sts. c. 66; and see Appendix of Statutes. 2 2 Bl. Com. 511; Dolman v. Cook, 14 N. J. Eq. 56. » Green v. Russell, 132 Mass. 540; Smith v. Bryant, 60 Ala. 235; Jen- kins tt. Jenkins, 63 Ind. 120; Stevenson v. Schriver, 9 Gill & J. 324. * Pub. Sts. c. 136, §§ 6, 7. « Dana v. Presoott, 1 Mass. 200. 240 LAW OP EXECUTORS AND ADMINISTBATOES. way as for payments made to others.^ In many States,, the executor need not file his claim, as other creditors must,^ unless, as is shown in the Massachusetts statute above cited, his claim is disputed, while in others his course of procedure is regulated by statutes relating to the filing his claim in the probate court in the proceedings to settle the estate.^ In a Massachusetts case, the proper course under the statutes of that State is as follows : If the estate is solvent, the executor credits himself in his account with the amount of the debt : if it is not disputed, he thus retains it out of the assets ; if it is disputed, he files his claim under the statute above referred to. If the estate is insolvent, his claim should be presented to the probate court : if it is not disputed, it will be allowed with the other claims and receive the same dividend ; if it is disputed, the same statute settles the procedure, and the claim when settled receives an equal dividend with others of the same class.* 1 Green v. Bussell, 132 Mass. 540. See statutes, passim. 2 Sanderson v. Sanderson, 17 Fla. 821; French v. Winsor, 24 Vt. 402; Miller v. Irby, 63 Ala. 477. * McLaughlin v. Newton, 53 N. H. 531; Barras v. Barras, 4 Redf. 263; Keller v. Stuck, 4 Kedf. 294; Gardiner's Case, 5 Redf. 14; Kearney V. McKeon, 85 N. Y. 136; Wright v. Wright, 72 Ind. 149; Crosby's Est., 55 Cal. 574; Tuttle v. Robinson, 33 N. H. 104; Watson v. Watson, 68 Md. 442 ; Md. Rev. Code, art. 50, §§ 163, 164. ^ Green v. Russell, 132 Mass. 540. MISCELLANEOUS POWERS AND DUTIES. 241 CHAPTER XV. MISCELLANEOUS POWERS AND DUTIES OP EXECUTORS AND AD- MINISTRATORS ; COLLECTING THE ASSETS, TAXATION, COM- PROMISES AND ARBITRATION, INVESTMENT OP ASSETS. § 421. Concealment of Assets; Process § i33. Compromises and Arbitration of to Remedy. Disputed Claims. 422. Proceedings against Embezzle- 434. Compromises affecting Future In- ment. terests. 423. Negligence of Executor or Ad- 435. Settlement of Conflicting In- ministrator in collecting. terests. 424. Taxation of the Estate. 436. Reference of Disputed Claims. 425. Taxation of the Estate, to whom 437. Application for Patents; Invoice Assessed, Oaths. 426. Place and Time of Assessment. 438. Liability of Executor and Ad- 427. Amount of Property to be Taxed. ministrator holding Stock in 428. Taxes Paid are allowed in Ac- Corporations. counts. 439. Investments of the Estate. 429. Collection of Taxes. 440. Negligence in not investing. 430. Taxation of Shares in Corpora- 441. Liability upon Investments. tion. 442. Deposit in Bank. 431. Succession Tax. 443. Interest when compounded. 432. Taxation of Executor's Commis- 444. Rate of Interest. §421. Concealment of Assets; Process to Remedy. — The duty and right of the executor or administrator to collect the estate is one of the most important belonging to his office. As has been seen, he has actions at law to effect this object ; but in addition, owing to the importance of gathering the ef- fects out of the possession of strangers, statutory enactments exist in many States giving the executor or administrator a right to cite any person suspected of embezzling or concealing the estate of the deceased into the probate court, to answer in- terrogatories thereupon. Thus, in several States, it is provided that upon complaint made to a probate court by an executor, administrator, heir, legatee, creditor, or other person interested 16 242 LAW OF EXECUTOES AND ADMINISTRATORS. in the estate of a person deceased, against any one suspected of having fraudulently received, concealed, embezzled, or con- veyed away any real or personal estate of the deceased, the court may cite the suspected person, though he is executor or administrator, to appear and be examined on oath upon the matter of the complaint. If the person refuses to appear and submit to an examination or to answer such interrogatories as are lawfully put to him, he may be committed to jail until he does answer. The interrogatories and answers shall be in writing, signed by the party examined, and shall be filed in court.^ § 422. Proceedings against Embezzlement. — When a person is cited under this statute to appear in the probate court and answer interrogatories, he may be assisted in making his an- swers to the interrogatories by his legal adviser, if the probate judge thinks this is a proper procedure, but this privilege rests in the discretion of the court and cannot be claimed as of right.2 If the proceedings under such a statute are directed against the executor or administrator himself, it must be al- leged either that he himself is concealing and refusing to in- ventory goods of the estate, or that some one else is so doing with his knowledge and collusion. It is not enough to allege only that some third party is concealing the goods, and that the executor or administrator has not inventoried them. Col- lusion of the executor with the person so concealing the goods must be alleged.^ § 423. Negligence of Executor or Administrator in collecting. — The executor or administrator, being given full powers for the collection of the estate into his own possession, is bound to employ these powers with reasonable diligence, and to pro- ceed to collect the debts and other property as soon as possible, 1 Mass. Pub. Sts. c. 133, § 1; Me. Rev. Sta. c. 64, § 67; Md. Rev. Code, art. 50, §§ 13, 14; N. Y. Code, Civ. Proo. §§ 2706-2714. " Martin v. Clapp, 99 Mass. 470. » Hignutt V. Cranor, 62 Md. 218. MISCELLANEOUS POWERS AND DUTIES. 243 without request from those interested in the estate. If there- fore he fails to do so, and by his negligence the estate suffers loss ; as, for instance, if he fails to bring suit to collect a debt due to the estate until after the statute of limitations has barred such a suit, he is guilty of a devastavit, and liable for the amount of the debt.^ Another instance of the same kind of liability is established by statute in Massachusetts, by which it is enacted that if an executor or administrator unreasonably delays to raise money by collecting the debts and effects of the deceased, and in consequence of such delay or neglect the es- tate of the deceased is taken on execution by his creditors, such delay or neglect is unfaithful administration, and the executor or administrator will be liable in an action on his bond for all damages occasioned thereby.^ § 424. Taxation of the Estate. — The mode of taxation of the estate of a deceased person varies of course with the stat- utes of different States, so much so that any attempt to treat fully of this subject would be beyond the limits of this book. Some of the main features, however, of the subject of taxation are similar in many States, and have been the subject of judi- cial decision, and some observations will be made upon these points. Thus in Massachusetts the statutes provide in substance that the personal estate of deceased persons shall be assessed in the place where the deceased last dwelt. Before the appointment of an executor or administrator, it shall be assessed in general terms to the estate of the deceased, and the executor or ad- ministrator subsequently appointed shall be liable for the tax so assessed in like manner as though assessed to him. After such appointment, it shall be assessed to such executor or ad- ministrator for the space of three years, unless it has been dis- tributed, and notice of such distribution given to the assessors, 1 Harrington v. Keteltas, 92 N. Y. 44; Grant v. Reese, 94 N. C. 720; Sanderson v. Sanderson, 20 Fla. 292. 2 Mass. Pub. Sts. c. 133, § 2; Me. Rev. Sts. c. 64, § 54. 244 LAW OP EXECUTORS AND ADMINISTRATORS. stating the name, residence, and amount paid the several par- ties interested in the estate who are inhabitants of the Com- monwealth. After three years personal property held in trust by an executor or administrator, the income of which is payable to another person shall be assessed to the executor or administrator in the place where such other person resides, if within the Commonwealth ; if outside, it shall be assessed in the place where the executor or administrator resides, and if there are two or more executors or administrators residing in different places, the property shall be assessed to them in equal portions in such places and paid out of the income. If the executor or administrator is not an inhabitant of this Com- monwealth, it shall be assessed to the person to whom it is payable in the place where he resides.^ When personal prop- erty held in trust by an executor or administrator, the income of which is payable to two or more persons, is assessed under the preceding section by the assessors of any city or town, in whole or in part, they shall, if informed in a specified manner of the names, domicils, and proportionate shares of the heirs, etc., make separate assessments, so as to show how much per- sonal property is assessed to each. If the assessment is ille- gally made, the tax paid may be recovered in an action.^ § 425. Taxation of the Estate, to whom Assessed. — Under these provisions and similar ones in other States, it is held that the tax is illegally assessed, and not collectible, if it is assessed to " the estate of " the deceased, after an executor or administrator has been appointed,^ or if it is assessed to the executor or administrator after the estate has been distributed and notice thereof given to the assessors, as provided by stat- ute ; and this is true although no account is filed in the probate court, and the distribution is an informal one by 1 Mass. Pub. Sts. c. 11, § 20, cl. 5, 7. = Pub. St. c. 11, § 21. 8 Wood V. Torrey, 97 Mass. 321 ; Fairfield v. Woodman, 76 Me. 549 • State V. Holmdel, 39 N. J. L. 79. MISCELLANEOUS POWEES AND DUTIES. 245 agreement of all the parties interested in the estate.^ But a mere error in assessment, by which the tax is assessed to administrators when they are in fact executors, does not invali- date the tax.2 It seems that, inasmuch as an executor is re- garded as having title to the property of the deceased under the will, and not by virtue of his appointment by the court, the tax may be assessed to Ijim before his appointment.* A legacy cannot be assessed to a legatee before payment.* § 426. Place and Time of Assessment. — A difference exists between the statutes of the various States in regard to the place at which the tax on the personal property of the estate should be assessed. If no specific statutory provision on this subject exists, the personal property should be assessed to the executor or administrator in the place where he resides, the property being his, although in a qualified right ; and this is generally the rule enacted by statute.^ In Massachusetts, however, it is provided by statute that the tax shall be as- sessed npon the personal estate in the place where the de- ceased owner last dwelt.® This includes national-bank stock.'' In Maryland, a still different result is arrived at by consider- ing that the personal property should be taxed wherever it is found, and that the presumption is that the property being in the probate court for settlement of the estate, the personal property should be taxed where the probate court is, which is generally the county where the deceased last dwelt.^ The time of assessment is fixed by statute, and is in Boston the first day of May, to which date the assessment, when it is completed, relates.^ ^ Carleton v. Ashburnham, 102 Mass. 348. 2 Bath V. Reed, 78 Me. 276. * Smith V. Northampton Bank, 4 Cush. 1. * Herrick v. Big Rapids, 53 Mioh. 554. 6 2 N. Y. Rev. Sts. p. 989, § 5; p. 991, § 10; State v. Holmdel, 39 N. J. L. 79. 6 Mass. Pub. Sts. c. 11, § 20, cl. 5; Hardy v. Yarmouth, 6 Allen, 282. ' Revere v. Boston, 123 Mass. 375. 8 Bonaparte v. Baltimore, 63 Md. 470. s Holmes v. Taber, 9 Allen, 246. 246 LAW OF EXECUTORS AND ADMINISTRATORS. § 427. Amount of Property to be Taxed. — In New York, the amount of property to be taxed is the whole personal estate, less any debts due by the estate, the purpose being to arrive at the value of the property ; ^ but the decision of the tax commissioners as to the number of debts to be deducted is final, unless it is shown to the court that they refused to de- duct a clear and uncontested debt due by the estate. If the rejected debts are doubtful claims, or are contested by the executor or administrator, the action of the tax commission- ers is final.2 In Massachusetts, the whole property is assessed, and if any debts are due by the estate they are taxed to the creditor, if the amount is fixed, or if any amount is admitted to be due by the executor or administrator.^ After personal property has once been assessed to any executor or adminis- trator, an amount not less than that amount shall be deemed the sum assessable, unless a true list is brought in to the assessors.* § 428. Taxes Paid are allowed in Accounts. — Taxes are made preferred debts in most States, as has already been seen,^ and the money paid by the executor or administrator for taxes on personal property is allowed in his accounts,^ but not for taxes on real estate.^ It is the duty of the ex- ecutor or administrator to find out what taxes are due upon the estate, and pay them. The tax is not a debt which is covered by the statute requiring creditors of the estate to exhibit their claims, but as there is generally a notification provided to the taxpayer, this is usually sufficient to prevent the estate from being sold through the inadvertence of the executor or administrator.^ 1 2 Rev. Sts. p. 991, § 10. ^ People V. Tax Commissioners, 99 N. Y. 157. ' Deane v. Hathaway, 136 Mass. 130. * Pub. Sts. c. 11, § 44. 6 s^pra, § 397 ; Md. Rev. Code, art. 11, § 64. 8 Holmes v. Taber, 9 Allen, 246. ' Jenoison v. Hapgood, 10 Pick. 105 ; Folhemus v. Middleton, 37 N. J. Eq. 240. ° Bonaparte v. Baltimore, 63 Md. 470. MISCELLANEOUS POWERS AND DUTIES. 247 § 429. Collection of Taxes. — When a tax is assessed upon personal estate of a deceased person, the collector may main- tain an action of contract therefor in his own name as for his own debt, against the executor or administrator ; and if the tax is so assessed before the appointment, he may enforce it against the estate and its representative after such appointment, as if the assessment had been made subsequently thereto.^ Under this statute, it has been held that the collec- tor cannot make a distress for a tax assessed to the deceased before his death, but must rely on his action of contract ; ^ but he may for a tax assessed upon the estate after the death of the owner.3 The action given by this statute is barred by the statute of limitations, as are all ordinary debts.* § 430. Taxation of Shares in Corporations. — Every executor or administrator who holds in trust shares or stock in any corporation, including banks located in the Commonwealth, and companies, partnerships, or associations taxable under chapter 13 of the Massachusetts Public Statutes, shall, be- tween the first and tenth of May, return on oath to the tax commissioner the names and residences on the first of that month of themselves and the persons to whom any portion of that income is payable, the number of shares so held, and the name and location of the corporation, company, partnership, or association in which they are held. For neglect, he forfeits one hundred dollars.^ § 431. Succession Tax. — In addition to the ordinary prop- erty tax, in some States a tax is laid upon the estate of a decedent as an inheritance or succession tax. Thus, in Mary- land, a tax of two and a half per cent on every hundred dollars of the estate after the payment of debts is laid upon every estate which descends to any other person than the father, 1 Mass. Pub. Sts. c. 12, § 21. 2 Wilson v. Shearer, 9 Met. 506. 8 Smith V. Northampton Bank, 4 Cush. 10. < Rich V. Tuokerman, 121 Mass. 222. « Mass. Pub. Sts. c. 13, § 7. 248 LAW OF EXECUTORS AND ADMINISTEATORS. mother, husband, wife, or direct lineal descendants of the de- ceased.^ This tax is in that State made a lien on the land, and may be collected by sale of any of the estate.^ And if the executor or administrator has paid over to any distributee his share of the estate without deducting therefrom the amount of this tax, that amount is held to be money had and received by the distributee to the use of the State, and may be recovered by the State in such an action.^ Such a tax applies only to estates which are distributed in that State, as it is intended to tax the devolution of the property, and cannot be enforced if that act takes place out of the State.* The constitutionality of such a tax has been assailed, but it has always been sustained by the courts.^ § 432. Tax on Commissions of Ezecutor or Administrator. — A further tax is laid in Maryland and some other States on the commissions of the executor or administrator.^ This tax applies only to estates administered in Maryland. Accord- ingly, if a resident of Maryland dies, and administration is taken first in another State, and a debtor residing in Maryland pays his debt to the foreign administrator, the administrator in Maryland is not obliged to pay any tax on the commissions on such a payment.^ § 433. Compromises and Arbitration of Disputed Claims. — Among the powers of executors or administrators at common law, to enable them to administer the estate with more facility, was given the power of submitting disputed claims to arbitra- tion, or of compromising them.^ In many States this power is 1 Md. Rev. Code, art. 11, §§ 104, et seq. ; Montague v. State, 54 Md. 482. = lb. §§ 115, 118. » Montague v. State, 54 Md. 482. 4 Citizens' Nat. Bank ». Sharp, 53 Md. 531. 6 McPherson, Matter of, 104 N. Y. 316. « Md. Rev. Code, art. 11, §§ 99, et seq. ' Citizens' Nat. Bank v. Sharp, 53 Md. 531. 8 Chadbourn v. Chadbourn, 9 Allen, 173; Rogers v. Hand, 39 N. J. Eq. 271 and note; Wood v. Tunnicliff, 74 N. Y. 42; Ailing o. Munson, 2 Conn. 691; Wheatley v. Martin, 6 Leigh, 62. MISCELLANEOUS POWERS AND DUTIES. 249 reinforced and affirmed by statute. Thus in Massachusetts, the statutes provide that the probate courts may authorize executors and administrators to adjust by arbitration or com- promise any demands in favor of or against the estates by them represented.^ This statute does not change the power existing at common law, but only provides for a judicial sanction to such arbitration or compromise, if it is desired by the execu- tor or administrator, in order to estop the parties who join in the proceedings from contesting them afterwards collaterally .^ The arbitrators have no power under this statute, if a claim against the estate is referred to them, to find a claim in favor of the estate which was not referred, but set up as a set- off.^ Under this statute a claim may be compromised by one of several joint executors, since they are all regarded as one person.* § 434. Compromises affecting Future Interests. — By a special provision of statute in Massachusetts, the supreme court may authorize executors or administrators to adjust by arbitration or compromise any controversy that may arise between differ- ent claimants to the estate in their hands. To this arbitration or compromise the executors, administrators, together with all other parties in being who claim an interest in such estate, must be parties. An award or compromise made in writing in such case will, if found by the court to be just and reasonable in its effects upon any future contingent interests in said estate, be valid and binding upon such interests, as well as upon the interests of parties in being, and where it appears that such future contingent interests may be affected, the court will ap- point some suitable person or persons to represent such inter- ests in such controversy, upon such conditions as to costs as 1 Mass. Pub. Sts. c. 142, § 12; and similar statutes exist in other States. Me. Rev. Sts. c. 64, § 52; 3 N. Y. Rev. Sts. p. 2299, § 36. " Chadbouru v. Chadbourn, 9 Allen, 173; Chase v. Bradley, 26 Me. 588; Wood v. Tunnicliff, 74 N. Y. 42. 8 Gilmore v. Hubbard, 12 Cush. 220. * Gilman v. Healy, 55 Me. 124. 250 LAW OP EXECUTORS AND ADMINISTRATORS. may seem equitable to the court.^ This statute was attacked on the ground that it was unconstitutional in allowing the fu- ture contingent interests especially of persons not yet in being, to be affected by the award ; but the court upheld the statute.^ § 435. Settlement of Conflicting Interests. — A special stat- utory provision exists in Massachusetts, by which the supreme court in equity may authorize the persons named as executors in an instrument purporting to be the last will of a person de- ceased, to adjust by arbitration or compromise any controversy that may arise between the persons claiming as devisees or legatees under such will, and the persons entitled to the es- tate of the deceased under the statutes regulating the descent and distribution of intestate estate. To this arbitration or compromise the persons named as executors, those claiming as devisees or legatees, and those claiming the estate as intes- tate, shall be parties. Future contingent interests may be protected by persons ap- pointed by the court, and the award and compromise, if found by the court to be just and reasonable in its effects on such interests, will bind them, as well as the interests of persons in being, but will not impair the claims of creditors against the estate of the person deceased. Minors or persons under guardianship must be represented in these proceedings by their guardians, or a guardian ad litem appointed by the court, who shall make and receive in the name of the party he re- presents all proper conveyances and payments necessary to carry into effect any award or compromise that is sanctioned by the court.^ A decree under this statute is intended to fix the rights of the parties as to the proportion of the estate which each is to have, and does not give a right to immediate payment, nor to interest upon the amount from the date of the decree.^ 1 Pub. Sts. c. 142, § 13. " Clarke ». Cordis, 4 Allen, 466. 8 Pub. Sts. c. 142, §§ 14-17. * Lincoln v. Wood, 128 Mass. 205. MISCELLANEOUS POWERS AND DUTIES. 251 § 436. Reference of Disputed Claims. — A further provision of statute exists in some States, by which in case of exorbitant claims the court may appoint commissioners to adjudicate upon such claims, whose decision is final, unless appealed from.^ And the appeal must be either by the administrator or executor or claimant, and not by any heir-at-law.^ And the same object is effected in New York by a power given to the surrogate to order a reference of disputed claims.^ This statute does not, as has been seen, affect the common-law right of executors or administrators to submit claims to ar- bitration.* § 437. Applications for Patents ; Invoice Oaths. — It is pro- vided by the statute of the United States relating to patents for inventions that application for a patent may be made by ex- ecutor or administrator ; ^ and this statute covers applications for a reissue of a patent as well as the original application, and the patent or reissue is issued to the executor or adminis- trator as such, the legal title to the patent passing to him in trust for those to whom the equitable interest in the patent belongs.* When merchandise subject to an ad valorem duty under the laws of the United States belongs to the estate of a deceased person, the oath requisite to invoices may be made by his executor or administrator.'^ § 438. Liability of Executors and Administrators holding Stock in Corporations. — By statute, both of the United States and in many States, persons holding stock as exec- utors or administrators are not personally subject to any liabilities as stockholders, but the estates and funds in their hands are liable as the testator or intestate would be, if 1 Me. Kev. Sts. c. 64, § 53; Rogers v. Eogers, 67 Me. 459. 2 Burrows v. Bourne, 67 Me. 227. 8 3 N. Y. Rev. Sts. p. 2299, § 36. * Wood V. Tunniclifi, 74 N. Y. 48. « U. S. Rev. Sts. § 4896. ' Rubber Company v. Goodyear, 9 Wall. 792. ' U. S. Rev. Sts. § 2846. 252 LAW OP EXECUTORS AND ADMINISTRATORS. living, and competent to act and hold the stock in his own name.^ § 439. Investments of the Estate. — The executor or ad- ministrator in the course of the settlement of the estate will often have sums of money in his hands which he cannot im- mediately pay out. In such case, the most prudent course is to apply to the probate court for an order directing a tem- porary investment, which order the court has power to make either by statute or as incident to its general powers. In Massachusetts, such a statute exists, by which the probate court may authorize temporary investment of funds during the settlement of estates.^ And a similar statute exists in other States.^ The object of such statutes is not to confer any new power upon the executor or administrator, but to afford him a protection in the exercise of his power of investment, for if he follows the order of the court upon due proceedings, he is not liable for loss.* § 440. Negligence in not Investing. — It is generally the duty of an executor or administrator to invest the money in his hands after the payment of debts, if he cannot pay it over to those entitled to it.^ ~ He is allowed a reasonable time in which either to make such payments or to invest the funds in his hands, which, as a rule, is held to be six months from the settle- ment of his accounts.® If the executor does not make his invest- ments in that time, and there is no good reason why he should not, he is held to be negligent, and will be charged with inter- est from the time when he should have made the investment.'^ I U. S. Rev. Sts. § 5152; Mass. Pub. Sts. c. 106, § 66. " Pub. Sts. 0. 156, § 32 » Md. Code, art. 50, § 12; N. J. Rev., Orphans' Court, §§ 115, 116; Pa. Bright. Purd. Dig., Deced. Est., §§ 101-103. * See statutes, supra; Twaddell's App., 5 Pa. St. 17. 6 King V. Berry, 2 Gr. Ch. 261; Fray v. Frey, 17 N. J. Eq. 71. ' Frey v. Frey, supra. ' Frey v. Frey, supra ; 2 Kent, Com 231 ; 2 Story, Eq. Jur. § 1277 ; Hill, Trustees, p. 374, note 1. MISCELLANEOUS POWERS AND DUTIES. 253 § 441. Liability upon Investments. — If, on the other hand, he invests without the sanction of the court, his liability is similar to that of a trustee. In some States there is a stat- utory rule stating what investments may be made of trust funds. In other States, the rule is that if the investment is made in good faith and with sound discretion at the time of the investment, the trustee is not liable for loss,^ for an ex- ecutor or trustee does not guarantee the security of invest- ments, but is protected if he acts as an ordinarily prudent man would act in the case of his own estate.^ In New Jersey the investment may be on mortgage, at the highest rate of interest procurable, or in United States or New Jersey State bonds ; ^ but not in municipal bonds or bank stock,* nor personal se- curity.^ In Maryland it has been held that the statute which gives the probate court power to authorize an investment by an executor or administrator in bank stock or other good security, furnishes an analogical protection for an executor, who has in good faith invested in such stock without the pro- tection of an order of the court.® In New Jersey a statute provides that an executor may continue the investments of his testator without liability for loss, if he does so in good faith and in the exercise of a sound discretion.^ § 442. Deposit in Bank. — While waiting for the time to pay over the money to distributees or to make investment of it, an executor or administrator may deposit it in his offi- cial capacity in a bank of good standing without liability for loss if the bank fails.^ 1 Perry, Trusts, §§ 459, 510, 511; Gray v. Lynch, 8 Gill, 405; McCoy V. Horwitz, 62 Md. 189. 2 McCabe v. Fowler, 84 N. T. 318. 8 Lathrop ». Smalley, 23 N. J. Eq. 192; Halsted ». Meeker, 18 N. J. Eq. 136, 140; Supp., Orphans' Court, § 17. * 33 N. J. Eq. 235. ^ Lefever v. Hasbrouck, 2 Dem. 567. » McCoy V. Horwitz, 62 Md. 189; Gray v. Lynch, 8 Gill, 419. ' Supp., Orphans' Court, § 18; Coddington v. Stone, 36 jS". J. Eq. 363. 8 Cox V. Roome, 38 N. J. Eq. 259; Jacobus v. Jacobus, 37 N. J. Eq. 17; Norwood v. Harness, 98 Ind. 134. 254 LAW OP EXECUTORS AND ADMINISTBATOES. § 443. When Compound Interest charged. — The rate of in- terest charged for mere neglect to invest is generally simple, although if circumstances exist which render compounding the interest proper, it will be so ordered ; ^ for instance, where the executor was directed by the will to put money out at in- terest and pay the interest yearly to a beneficiary, it was held that interest should be computed on the overdue interest pro- vided for by the will.^ And if the executor or administrator retaining the money lends it or buys stocks, etc., for himself, or uses it in his own business, and thus makes a personal profit out of the interest, interest should be compounded. The periods at which it should be compounded, that is, whether six months or annually, depend upon the amount of the interest which the sums retained would have produced if properly in- vested. If this amount would have been sufiiciently large every six months to be easily invested, interest should be reckoned at six months' rests, otherwise at yearly rests.^ § 444. Rate of Interest. — The rate at which interest should be reckoned is the current legal rate. In England and in some States, variation from the rate is allowed on equitable considerations ; in other States, it is not.* Where the execu- tor or administrator uses the money for his own purposes, he is supposed to have made the legal rate of interest on it.^ But in England, when the executor has acted in good faith, he has been charged only four per cent, the legal rate being five per cent, and in New York six per cent has been charged when a higher rate was current.® 1 Frost V. Denman, 41 N. J. Eq. 48; McKnight ». Walsh, 23 N. J. Eq. 147; Frey a. Frey, 17 N. J. Eq. 74; Schieffelin v. Stewart, 1 Johns. Ch. 620; Barney u. Saunders, 16 How. 542; Berwick on Tweed v. Murray, 7 DeG. M. & G. 497; Robinson v. Robinson, 1 DeG. M. & G. 247. 2 Lathrop v. Smalley, 23 N. J. Eq. 195. " Frey u. Frey, sijpmy Barney u. Saunders, supray MoKnight ». Walsh, supray Voorhees v. StoothofE, 11 N. J. Law, 145. * Frey ». Frey, supra. See infra, § 506. 6 Attorney-General v. Alford, 4 DeG. M. & G. 843; Burdickv. Garrick, L. R. 5 Ch. App., 241. 8 King V. Talbot, 40 N. Y. 95; Adair v. Brimmer, 74 N. Y. 555. SALES AND CONVEYANCES OP ASSETS. 255 CHAPTER XVI. SALES AND CONVEYANCES OP PERSONAL OR REAL ASSETS. 445. Sales of Personal Property. 446. Licensed by Probate Court. 447. Power to sell Personal Estate limited by Statute. Power to endorse Notes . Endorsement by Foreign Execu- tor. 450. Endorsement before Appoint- ment. Assignment of Mortgages. Power to mortgage or pledge the Assets. Statutory Power to sell Real Es- tate. Same subject, Massachusetts. Same subject. Same subject. 457. Same subject. 458. What Estate may be sold. Conclusiveness of Sale. Court for Application for Li- cense. Notice of Application for License to sell. 448. 449, 451. 452. 453. 454. 455. 456. 459. 460. 461. i 462. Title to Land and Proceeds of Sale. 468. Liens on Land sold. 464. Payment of Purchase Money, how enforced. 465. Discretion of Court to grant Li- censes. 466. Effect of Bond to pay Debts and Legacies, on License to sell. 467. Foundation of License is Debts. 468. As to Debts barred by Statute of Limitations. 469. Bonds covering Proceeds of Sale. 470. Covenants in Deed. 471. Fraudulent Sales. 472. Purchase by Executor or Admin- istrator. 473. Fraudulent Sales voidable only. 474. Mortgages of Real Estate. 475. Power of Sale in Will, Survival of. 476. When includes Power to Mort- gage- 477. Miscellaneous Powers. § 445. Sales of Personal Property. — The personal estate of a deceased person vesta in his executor or administrator, as has been already seen.^ The executor or administrator is charged with the duty of paying the debts of the intestate ; and to accomplish this object he has at common law, and unless restricted by statute, the power to sell the personal estate at any time, and in any manner, without any authorization from the probate court, provided the sale is bona fide, and without ' Hutcbins v. State Bank, 12 Met. 425; supra, § 314, et seq. 256 LAW OP EXECUTORS AND ADMmiSTEATOBS. fraud ; ^ and this power to sell personal estate without license includes the power to sell chattel interests in land, such as terms of years,'^ or mortgages of land, or personal property ; ^ and the executor or administrator is not held by any implied warranty of title, although he would be personally liable if he expressly warrants, or if he is guilty of fraud in the sale.* § 446. Licensed by Probate Court. — Although this power of selling the personal estate exists at common law, yet for the protection of the executor or administrator it is frequently enacted by statute that the probate court may by order license such sale, thereby estopping interested parties who have been duly notified from contesting the validity of the sale in a col- lateral action, or in the accounts of the executor or administra- tor.^ Thus in Massachusetts, it is enacted that a probate court, after the return of the inventory, on application of the execu- tor or administrator, or by any person interested in the estate, may order a part or the whole of the personal estate of the de- ceased to be sold by public auction or private sale, as may be deemed best for the interest of all concerned, and the admin- istrator or executor shall account for the property at the price at which it was sold.* Similarly, there is in Massachusetts a statute to facilitate the disposal of chases in action, by which it is provided that the probate court may, on petition of an ex- ecutor or administrator, and after notice to the interested par- ties, license the petitioner to sell and assign any outstanding debts and claims which cannot be collected without inconve- nient delay. The sale must be made as the court orders, and 1 Wms. Ex'rs, 933, 935; Whale v. Booth, 4 T. R. 625; Wolverhamp- ton Bank v. Marston, 7 H. & N. 148; Bayner v. Fearsall, 3 Johns. Ch. 578 ; Hutchins v. State Bank, 12 Met. 424. * Gay, Pet., 5 Mass. 419; Amory v. Francis, 16 Mass. 313. » Crocker v. Jewell, 31 Me. 313 ; Allender v. Riston, 2 G. & J. 97. See infra, § 451. * Mockbee v. Gardner, 2 H. & G. 132. 6 Clark V. Blackington, 110 Mass. 374. « Mass. Pub. Sts c. 133, § 3. SALES AND CONVEYANCES OP ASSETS. 257 generally it will have regard to the manner of selling real estate. The purchaser may sue on these claims in his own name. The fact of the sale must be set forth in the declaration, and the defendant has the same defences as if the suit were brought by the executor or administrator. The executor shall not be liable for costs, nor recover them.^ And such a suit, if brought on a promissory note, signed in the presence of an attesting witness, shall not be barred by the provisions of chapter 197 of the Public Statutes, of which the following section is the important one in this connection, " None of the foregoing pro- visions [limitations as to personal actions] shall apply to an action brought on a promissory note, signed in the presence of an attesting witness, if the action is brought by the original payee or by his executor or administrator.^ § 447. Power to sell Personal Estate Limited by Statute. — In some States, the power which an executor or administrator has at common law of selling the personal estate is limited by statute, and he may sell only when licensed by the probate court ; ° while in others, the executor or administrator is by statute commanded to sell the personal estate within a limited time.* § 448. Power to endorse Notes. — As an auxiliary to the power of sale of personal property given to the executor or ad- ministrator, his power is extended to endorsing the bills of ex- change or promissory notes of the deceased, with the same effect as if the endorsement had been made by the deceased himself.^ § 449. Endorsement by Foreign Executor. — The effect of an 1 Pub. Sts. 0. 133, §§ 4, 5. 2 Pub. Sts. c. 197, § 6; c. 133, § 5. ' Md. Rev. Code, art. 50, § 193. See Appendix of Statutes. * Ohio Rev. Sts. § 6074 ; Kennedy's Est., 25 Pitts. L. J. 135. See Ap- pendix of Statutes. 6 Rawlinson v. Stone, 3 Wil8. 1; "Watkins v. Maule, 2 Jao. & W. 237; Clark V. Blackington, 110 Mass. 374, 375. 17 258 LAW OF EXECUTORS AND ADMINISTRATORS. endorsement by a foreign executor or administrator is doubt- ful upon the decisions. The better opinion seems to be that executors or administrators, duly appointed, and having the note in their possession, may endorse it before maturity, and their endorsement carries the whole title to the note as if endorsed by the deceased in his lifetime, so that the endorsee may sue upon it in his own name in another State ; ^ but it has been held that such an endorsement does not give the endorsee a right to sue in another State where the endorsing executor or administrator has not taken out letters, because that would give the endorsee a greater right than the endorser had.^ This reasoning, however, is condemned by Chief Justice Shaw, in Rand v. Hubbard, as in many cases one may give a right to sue which he himself has not ; for example, an administrator who sells real estate under a license.^ It seems that if the note is overdue, it can only be endorsed by an administrator or executor qualified in the State in which suit is brought.* § 450. Endorsement before Appointment. — In case of an executor, it would seem that he might endorse a note before he has qualified as executor in the probate court, because he gets his title to the property of the deceased through the will, and not by virtue of his appointment by the probate court. As to an administrator, however, tbe case is otherwise, since liis title depends wholly upon his appointment by the court.^ § 451. Assignment of Mortgages. — A mortgage before fore- closure being considered personal property, may be sold by the executor or administrator, and assigned by him, without license of the probate court ; ® after foreclosure, the mortgage interest is real property, and cannot be sold without license of court." 1 Rand v. Hubbard, 4 Met. 258, 260. 2 Thompson v. Wilson, 2 N. H. 291 ; Stearns v. Burnham, 5 Greenl. 261. ' Band v. Hubbard, 4 Met. 259. * Steams v. Burnham, supra. 6 Band v. Hubbard, 4 Met. 256. ' Burt V. Bicker, 6 Allen, 77; Crooker v. Jewell, 31 Me. 313 ; Allender V. Biston, 2 G. & J. 97. ' Blair's App., 13 Met. 126; Mass. Pub. Sts. c. 133, § 9. SALES XTSO CONVEYANCES OP ASSETS. 259 § 452. Power to mortgage or pledge the Assets. — An ex- ecutor's power of disposal of the goods of the testator is said by eminent authority to include the power to mortgage the assets in order to raise money, and to insert a power of sale in the mortgage.^ A statutory power is given in some States to the executor or administrator to mortgage the real estate for purposes of administration, as will be. seen later.^ And the same power of the executor to sell includes the power to pledge the assets to raise money, and the pledgee may sell if the pledged property is not redeemed.^ § 453. Statutory Power to sell Real Estate. — Besides the power of sale of real property which may be given to an execu- tor by will, and which pertains more properly to the law of wills and the construction of wills than to the law of executors and administrators, there is in many States a statutory pro- vision by which an executor or administrator may, upon peti- tion to the probate court, be licensed to sell a part or the whole of the real estate of the deceased, in order to pay the debts of the estate. The provisions of the statutes in the various States on this point vary largely in detail, but the main out- lines of the provisions are substantially similar in those States which have adopted this mode of subjecting the real estate to liability for the debts of the deceased. The statutes of Massachusetts, which are as follows, may serve as a model of this species of enactment. When the per- sonal estate of a deceased person is insufiScient to pay his debts and legacies, with the charges of administration, his executor or administrator shall, for the purpose of making such pay- ment, sell his real estate in the manner hereinafter provided, and the proceeds of any such sale shall be considered as assets in the hands of the executor or administrator, as if originally 1 Ld. Hardwioke, Mead v. Orrery, 3 Atk. 239; Scott v. Tyler, 2 Dick. 724; Russell v. Plaice, 18 Beav. 21; AUender v. Kiston, 2 G. & J. 97. 2 Infra, § 474. 8 Russell V. Plaice, 18 Beav. 28, 29; Petrie v. Clark, 11 Serg. & R. 388. 260 LAW OP EXECUTORS AND ADMINISTRATORS. part of the personal estate of the deceased.^ In all cases, how- ever, of sale of the real estate of a deceased person by an ex- ecutor or administrator, the surplus of the proceeds remaining on the final settlement of the accounts is to be considered as real estate, and disposed of to the same persons and in the same proportions to whom and in which the real estate, if not sold, would have descended, or been disposed of by the laws of the Commonwealth.^ § 454. Statutory Power to Sell ; Massachusetts. — The real estate which may be sold includes all lands of the deceased, all rights of entry and of action, and other rights or interests in lands which by law would go to the heirs, or which would have been liable to attachment or execution by a creditor of the deceased in his lifetime ; but the sale is made subject to the dower of the wife or the curtesy of the husband in the estate sold, and claims by entry or by action to lands fraudu- lently conveyed by the deceased must be made within five years after the decease of the grantor. If the deceased left a will, but was intestate as to part of his real estate, this part shall be chargeable first, and shall exonerate the devised real estate, unless the will shows a dif- ferent intention in the testator.^ And it should also be no- ticed that when land is leased for one hundred years, so long as fifty years remain of the term the leasehold interest is con- sidered an estate in fee simple.* The license to sell will be granted by the supreme or supe- rior court in any county on certificate from the probate court, or by the probate court which granted the letters testamen- tary or of administration. The license is granted on petition, stating the value of personal estate in the petitioners' hands, the amount of charges of administration, the amount of debts so far as known, and if there is a will, the amount of the lega- cies ; on such a petition either a whole or a part of the real 1 Pub. Sts. c. 134, § 1. 2 Pub. Sts. c. 142, § 9. » Pub. Sts. c. 134, §§ 1, 2, 3. * Pub. Sts. o. 121, § 1. SALES AND CONVEYANCES OP ASSETS. 261 estate may be sold, as appears best to the court, or the petition may ask leave to sell a specific piece of real estate, when that is enough. If there is any clause in the will disposing of the estate for the payment of debts in a manner different from, that prescribed by law, such clause should be inserted in the petition, and a copy of the will annexed, and the court will decree a sale in conformity with the intention of the testator, if possible.^ § 455. statutory Power to Sell ; Massachusetts. — The license will not be granted till after a hearing duly notified to all persons interested, and, on proof at the hearing of the facts alleged in the petition, and no sufficient cause to the contrary shown, the court will license the petitioner to sell by public auction, and execute valid conveyances of all the estate, right, title, and interest which the deceased had in the granted premises at his death, or which was then chargeable with his debts.2 The license will not be granted if any one interested in the estate gives bond to the petitioner to pay, so far as the personal estate is deficient, all the legacies mentioned in the petition and charges of administration, and such debts men- tioned in the petition as shall eventually be found to be due. After the license is granted, the executor or administrator must give public notice of the sale, as specified by the statute, and make affidavit of that fact.^ He may adjourn the sale not more than fourteen days. If he is licensed to sell lands fraudulently conveyed by the deceased, or fraudulently held by another person for him, or lands to which the deceased had a right of entry or of action, or of which he had a right to a conveyance, the petitioner may first obtain possession of such lands by entry or action, and may sell the same at any time within one year after obtaining possession. He may make a formal entry on the premises, i Pub. Sts. c. 134, §§ 4, 5, 6, 7, 8. 2 As to statute authorizing private sale, see Stat. 1886, o. 137. 8 Pub. Sts. c. 134, §§ 9, 10, 11, 12, 13. 262 LAW OP EXECUT0B8 AND ADMINISTRATORS. and bring the action upon his own seisin acquired by such entry, demanding the land as executor or administrator.^ If any person appears and objects to the granting a license to sell real estate, and it appears to the court that either the petition or the objection thereto is unreasonable, it may award costs to the prevailing party .^ § 456. Statutory Regulationa of Power to sell Real Estate ; Massachusetts. — No license for a sale by an executor or ad- ministrator remains in force for more than one year after the granting thereof, except when a sale is made of land recovered by an executor or administrator, which had been fraudulently conveyed by the deceased or otherwise, as is provided in chap- ter 134, § 15, of the Public Statutes.^ Every person author- ized to sell land by license of court shall be required, upon application to the probate court by an heir, creditor, ward, or other person interested in estate, to make answer upon oath as to all matters touching his exercise and fulfilment of the license, as fully as he is liable to account and be examined in reference to personal estate. K there is any neglect or mis- conduct in his proceedings, by which a person interested in the estate suffers damage, such person may recover compensa- tion, by suit on the probate bond or otherwise, as the case may require.* No sale of real estate made by an executor or administrator, or other person by license of the court, and no title under such a sale, will be avoided for the reason that the deed was not delivered within one year after the license, or on account of any irregularity in the proceedings , if it appears : 1. That the license was granted by a court of competent jurisdiction. 2. That the person licensed gave a bond which was approved by the judge of the probate court, if a bond was required upon 1 Pub. Sts. c. 134, §§ 14, 15. As to sales by foreign executors, see sub eo titulo. ^ Pub. Sts. c. 142, § 10. » See supra, § 455; Pub. Sts. c. 142, § 8. * Pub. Sts. c. 142, § 11. SALES AND CONTETANCES OP ASSETS. 263 the granting the license. 3. That the notice of the time and place of sale was given according to the order of the court. 4. That the premises were sold by public auction, in accord- ance with the notice, and are held by one who purchased them in good faith.^ If the validity of a sale is drawn in question by a person claiming adversely to the title of the fleceased, or claiming under a title that is not derived from or through the deceased, the sale is not to be held void on account of any irregularity in the proceedings, if it appears that the executor or administrator was licensed to make the sale by a court of competent jurisdiction, and that he accordingly executed and acknowledged in legal form a deed for the conveyance of the premises.^ § 457. statutory Regulations of Power to sell Real Estate : Massachusetts. — No action for the recovery of land sold under license of probate court by an executor or administrator shall be maintained by an heir or other person claiming under the deceased,, unless begun within five years after the sale, except that persons out of the Commonwealth, and minors, and others under legal disability to sue at the time when their right of action first accrues, may commence such an action at any time within five years after the removal of the disability, or after their return to the Commonwealth. No entry, unless by judg- ment of law, shall be made on the lands so sold, with a view to avoid the sale, unless within the times of limitations before prescribed for the commencement of an action.^ If any act or proceeding of an executor or administrator under a license of the probate court, is void by reason of irreg- ularity, or of want of jurisdiction or authority in the court granting the license, any person interested in or affected by the act or proceeding may have the matter heard and deter- mined by the supreme court in equity, and that court may confirni or set aside in whole or in part the act or proceed- 1 Pub. Sts. c. 142, § 18. 2 Pub. Sts. c. 142, § 19. » Pub. Sts. c. 142, § 21. 264 LAW OP EXECUTORS AND ADMINISTEATOES. ing, and may make such order or decree, settling the rights and liabilities as it may think just and equitable, and may direct such releases, conveyances, and discharges to be made and given as may be found necessary to carry into complete effect the relief granted by its decree.^ When the validity of an act or proceeding of a person acting as executor or admin- istrator is called in question by reason of an alleged irregular- ity, defective notice, or want of authority in such person, any party interested in or affected by such an act or proceeding may apply to the probate court having jurisdiction of the sub- ject-matter in respect to which the act or proceeding has been had ; and the court ou notice of hearing may confirm the act or proceeding, wholly or in part, and may authorize the execu- tor or administrator, or his successor, or any person legally appointed to act in that capacity, to ratify and confirm the act or proceeding, and to execute and deliver such deeds, releases, conveyances, and other instruments as may be found neces- sary for that purpose ; but no act may be confirmed which the court might not originally have authorized.^ § 468. 'What Real Estate may be sold. — In noticing some of the numerous decisions upon this and similar statutes, it may be said, first, that the real estate which is liable to be sold includes all that has been conveyed by the deceased in fraud of his creditors.^ This includes land deeded away as a gift, if the donor at that time was incapacitated to pay his debts by that gift.* But it includes only such land as equitably belongs to the estate. So, if the deceased had contracted to sell lands, and after his death the executor has been ordered by decree of court to make a deed of the same, the interest of the de- ceased's estate in the land is ended, and a petition for license to sell the real estate will not be sustained.^ In any event, 1 Pub. Sts. c. 142, § 22. = Pub. Sts. c. 142, § 23. 8 Wesoott V. McDonald, 22 Me. 402. * Norton v. Norton, 5 Cush. 528. ' Caverly v. Eastman, 142 Mass. 4. SALES AND CONVEYANCES OF ASSETS. 265 the sale is only of the interest of the deceased in the land, whatever that may be.' § 459. Conclusiveness of Order of Sale. — The earlier deci- sions were inclined to construe very strictly the statutory power of sale, and to hold the executor to a strict pursu- ance of the statutory requirements, otherwise the sale was in- valid and void, and the title to the land could be attacked in a collateral suit and shown to be bad. The cases on this point have been cited at some length in a previous portion of this work, to which the reader is referred.^ The tendency of modern decisions (and in some States, statutes have been enacted to this effect) is to uphold the title as against all except those interested in the estate of the deceased, if the license was granted by a court of competent jurisdiction and upon proper notice to interested parties, and the sale took place in accordance with the license, and the land is bought and held by a bona fide purchaser.^ Mere irregularity in the proceedings therefor wiU not avoid the sale and invalidate the title, but a substantial departure from the statute will have that effect ; * therefore, as the statute which authorizes courts to grant licenses to executors and administrators to sell the lands of the deceased for payment of debts, gives no authority to appoint a stranger to execute that duty, a sale by such license conveys no title to the pur- chaser.^ So where such sale was advertised to be on Friday, the 17th, whereas Friday was in fact the 16th, the sale was for that cause void, although in the last publication, which was on the day of the sale, the error was corrected.® So 1 Hasty V. Johnson, 3 Me. 282. 2 Supra, §§ 16, 17, 18, 24. » Supra, § 456 ; Purrington ». Dunning, 11 Me. 174. * Stilwell V. Swarthout, 81 N. Y. 113; Campbell v. Knights, 26 Me. 224. 6 Crouch ». Eveleth, 12 Mass. 503. • Wellman v. Lawrence, 15 Mass. 326 ; Stilwell v. Swarthout, 81 N. Y. 113. 266 LAW OP EXECUTORS AND ADMINI8TEAT0ES. where the deed is not executed within the time allowed by the license or statute ; ^ but not so, when it is delivered within the time, but not acknowledged till afterwards.^ So when the statute provides that the license shall be granted to the ex- ecutors or administrators, the license must be granted to all the executors or administrators, unless otherwise specially allowed by statute, and a license to one upon his sole petition is void and may be shown to be so in a collateral proceeding.^ If one of several executors or administrators wrongfully re- fuses to join in such a petition, a court of equity has no power to compel him to act, but the remedy is by application to the probate court to have him removed, or by suit upon his admin- istration bond.* § 460. Court of Application for Iiicense. — The court in. which application should be made for license to sell real estate is generally specified by the statute which confers the power to sell. It is ordinarily the probate court in which the estate is in the process of settlement, although other courts are sometimes added.^ § 461. The Notice of Application for Idcenae to sell. — The notice of the application provided for by the statute to those interested in the estate, means interested in the estate of the deceased, not in the land about to be sold ; and a person who claims the land by disseisin has no right to such notice.® A wife of a devisee is not so interested in the estate as to have a right to such notice.'^ If the proper notice is not given the sale is void, and may be shown to be so in collateral proceed- 1 Macy V. Raymond, 9 Pick. 284 ; Chadboume v. RacklifE, 30 Me. 354; Mason v. Ham, 36 Me. 573. 2 Poor V. Larrabee, 58 Me. 543; Fowle v. Coe, 63 Me. 245. * Hannum v. Day, 105 Mass. 34; Personette v. Johnson, 40 N. J. Eq. 173. * Southwick V. Morrill, 121 Mass. 520. 6 Vail V. Rinehart, 105 Ind. 6; Mass. Pub. Sts. c. 134,'§ 4. ' Yeomans v. Brown, 8 Met. 57. ' Harrington v. Harrington, 13 Gray, 514. SALES AND CONVEYANCES OP ASSETS. 267 ings ; ^ but this is true only of sales by executors or adminis- trators where they rely only on the license given by the court. If they have any estate in the land, as where they have taken the land on execution for a debt due to the deceased, and then sell it to pay debts, the sale is not void, if proper notice is not given, but only voidable by those entitled to the land ; and if they do not choose to avoid it, it is valid as against a stranger.^ The fact that an administrator's deed is not recorded does not invalidate it.^ In giving notice of the sale, the fact that the numbers of the houses on the street are wrongly given does not invalidate the sale, if the rest of the description identifies the land fully.* And if the sale is adjourned the adjournment need not be made by the executor or administrator personally, but may be made by any one authorized by him.^ § 462. Title to the Land and Proceeds of Sale. — The statute providing for the sale of land to pay debts does not change the title to the land before the sale. It still remains in the heirs or devisees until actually sold, and until that time they are entitled to the rents and profits.^ And for that reason an executor who is served with a trustee writ, in a suit against a devisee, before he has petitioned for leave to sell the real estate to pay debts, is not bound by that writ to retain the pro- ceeds of the sale.'' And after the sale, the administrator or executor holds the proceeds in awter droit ; so that if he de- posits them with a third person, that person cannot be held as trustee of the administrator in a suit against him on his own private debts.^ After the real estate is sold, interest on 1 Wellman v. Lawrence, 15 Mass. 326. 2 Thomas v. Le Baron, 10 Met. 407 ; Verry ». McClellan, 6 Gray, 535. 8 Pond V. Wetherbee, 4 Pick. 312. * New Eng. Hospital v. Sohier, 115 Mass. 50. 6 Hicks V. Willis, 41 N. J. Eq. 517. • Gibson v. Farley, 16 Mass. 280; Symmes v. Drew, 21 Pick, 280, 282. ' Capen v. Duggan, 136 Mass. 501. 8 Marvel v. Babbitt, 143 Mass. 227. 268 LAW OF EXECUTORS AND ADMINISTKATORS. the proceeds are assets, and the executor or administrator is chargeable with them.^ § 463. Effect of Sale on Liens. — The real estate may be sold subject to a mortgage, or a life estate if these incumbrances ' exist upon it.^ In some States it is held that when mortgaged land is sold, the executor or administrator is only chargeable with the value of the equity of redemption, and should not en- ter the whole value of land in his accounts and then offset a charge for paying the mortgage, since that would have the ap- pearance of giving the mortgagee a preference in the payment of a debt ; whereas, in truth, the equity alone is assets, and there has been no preference.^ But in others, as for example, in Ohio, it is held that the estate should be sold free from liens, which will be discharged by the court out of the proceeds of the sale.* And in Massachusetts it is held that an executor or administrator may maintain a bill in equity to discharge the mortgage before selling the land, which is then sold clear of incumbrances.^ Any taxes which are due on the land at the time of the sale should be charged against the rents of the land previous to the sale, and the proceeds of the sale left unincumbered.^ § 464. Payment of Price, how enforced. — If the purchaser fails to pay, the administrator can put the land Up for sale again, and can recover of the first purchaser the difference between the first price and what the land sells for at the sec- ond sale, although the second price is enough to pay the debts and legacies ; ^ and it is held that he may bring suit in his own name, and not in his capacity as executor, since the contract is with him personally.* 1 Grout ». Hapgood, 13 Pick. 159; Jennison v. Hapgood, 14 Rck. 345; Newoomb v. Stebbins, 9 Met. 545. 2 Kenley v. Bryan, 110 111. 652. » Abby v. Fuller, 8 Met. 39. * Stone V. Strong, 42 Ohio St. 58; Sohmitt v. Willis, 40 N. J. Eq.515. ' Mason v. Daly, 117 Mass. 406. « Fessenden's App., 77 Me. 98. ' Cobb V. Wood, 8 Gush. 228; Thompson v. Whitmarsh, 100 N. Y. 35. 8 Thompson v. Whitmarsh, supra. SALES AND CONVEYANCES OP ASSETS. 269 § 465. Granting the License is discretionary with Court. — The granting of the license is in the discretion of the probate court ; and therefore if there are any reasons why it should not be granted, such as that conflicting titles will render it probable that the land will sell for much less than it is worth, the probate court will, by appropriate proceedings, settle the title so far as it can before ordering the sale.^ So, in one case, the court refused to grant a license to an administratrix to sell the real estate of her intestate for the payment of his debts, it appearing that the only debt due from the estate of the intestate was secured by a mortgage ; that the mortgagee had obtained possession of the mortgaged premises ; that he had never demanded the debt ; tha,t more than four years had elapsed since the granting the administration, and that the heirs offered to save her harmless from all damages and costs by reason of such debt ; and although such mortgaged premises had been assigned to the administratrix as her dower in the estate of the intestate.^ So the court may, in its discretion, order any specific part of the land to be sold.^ § 466. Bond to pay Debts and Legacy ; Effect of, on License to Sell. — This power of sale does not exist in favor of an executor and residuary legatee who has given bond to pay debts and legacies. He is, by that bond, obliged to pay all the debts and legacies personally, and cannot rely upon the estate being suiScient for that purpose.* § 467. Must be Existing Debts. — The foundation of this power of sale is the fact that the debts exceed the assets. If the executor, in setting forth his petition for such a sale, omits from the assets a note of his own due to the estate, which is of such amount as would render the deficiency of assets very small, this is unfaithful administration on his 1 Sprague v. West, 127 Mass. 472; Allen, Exp., 15 Mass. 58. 2 Scott V. Hancock, 13 Mass. 162. 8 Hays V. Jackson, 6 Mass. 149. * Thayer ». Winchester, 133 Mass. 449. 270 LiW OP EXECUTORS AND ADMINISTBATOES. part, for which suit may be brought on the bond.^ So, if there are no debts existing which are enforceable against the estate, the court has no power to make the order, for example, if the debts are barred by the special statute of limitations ; ^ and this question of the existence of debts is open in a collateral suit in the absence of contrary statutory provision.^ But if there are any valid debts, for instance, the expenses of settling the estate, and there is not personal estate suffi- cient to pay them, it will be enough to sustain the jurisdic- tion.* And by statute in some States, it is provided that when a license for sale or mortgage of real estate to pay debts and charges of a deceased person is gra.nted by a probate court, the adjudication of the court as to the existence of the debts and charges is final, so far as the same may affect any title acquired by virtue of the license, but it does not affect the right of the executor or administrator to contest the validity of the debts and charges.^ § 468. Debts barred by the Statute of Limitations. — If the administrator or executor duly posts notifications of his ap- pointment, and the debts against the estate are not enforced by suit within two years from that time, if the estate is sol- vent, or by proof before the commissioners of insolvency, if the estate is insolvent, they become barred by the statute of limitations applicable to executors, and they furnish no ground for a license to sell real estate,® and the real estate is not as- sets of the estate.'^ If, however, debts have been duly proved before commissioners in insolvency, they are not affected by 1 Chapin v. Waters, 110 Mass. 197. " Tarbell v. Parker, 106 Mass. 349. 8 Aiken v. Morse, 104 Mass. 277; Lamson v. Schutt, 4 Allen, 359; Heath ». Wells, 5 Pick. 139. ' Personette v. Johnson, 40 N. J. Eq. 173 ; Stevens v. Burgess, 61 Me. 89; Griffith v. County Bank, 6 G. & J. 424. 6 Mass. Pub. Sts. o. 142, § 20. « Aiken v. Morse, 104 Mass. 277; Tarbell v. Parker, 106 Mass. 347; Palmer v. Palmer, 13 Gray, 328; Slocum «. English, 62 N. Y. 494. 7 Hudson V. Hulbert, 15 Pick. 425. SALES AND CONVEYANCES OF ASSETS. 271 the special statute of limitations, and land may be sold to pay them ; ^ or if suit has been begun within the two years, the fact that it is not ended till after the expiration of the two years does not defeat the right to the license.^ If the only debt against the estate is that of the administrator, he may, by the lapse of time before he applies for leave to sell the real es- tate, and by allowing the heirs to divide up or sell the real estate under the belief that it will not be wanted to pay debts, estop himself, after the lapse of the statutory period, from claiming the benefit of a sale of land to pay his debt ; but if there is no such equity, it has been said that the mere lapse of time does not prevent him from petitioning for such a sale, at least before his administration account is settled.* If the ex- ecutor or administrator pays the debts of the testator beyond the amount of the personal assets within the time limited by the statute of limitations, he cannot, after that time, obtain a license to sell the real estate for his reimbursement, unless the estate remains at the time of the application as it was at the death of the testator, without partition among the heirs or devisees, and without any conveyance from them or the executor ; nor unless he makes an application within a reason- able time after his payment of debts.* The money received from the sale of land is not new assets, which renew a claim by a creditor which has been barred by the statute of limi- tations.^ § 469. Bonds covering Proceeds of Sale. — The ordinary administration bond does not cover the due administration of the proceeds of the real estate sold to pay debts, unless the due administration of these proceeds is made a part of the condition of the bond, as it often is, in which case no further 1 Edmunds v. Rockwell, 125 Mass. 363. 2 Hudson V. Hulbert, 15 Pick. 423. 8 Palmer v. Palmer, 13 Gray, 326. * Allen, Exp., 15 Mass. 58. * Chenery v. Webster, 8 Allen, 76. 272 LAW OP EXECUTORS AND ADMINISTRATORS. bond need be given ; ^ but the ordinary bond does not cover a neglect of the administrator or executor to apply for a license to sell real estate, when requested so to do in a proper case by a creditor .2 If, however, the administrator is licensed to sell more real estate than is enough to pay debts, he gives a spe- cial bond covering the disposition of the surplus.^ If such a bond is given as is provided for by the statute to prevent the sale of the land,* there is no breach of it, unless some debt is charged on the executor's probate account and allowed by the judge, and there are not assets enough to pay it. A judgment against the administrator is not enough.^ § 470. Administrator bound by Covenants in Deed. — In giving the deed under a license to sell, the executor or ad- ministrator is bound by the covenants. Thus, where the ad- ministrators of an insolvent estate, under a license of court to sell the real estate of their intestate for payment of debts, sold an equity of redemption of which their intestate was supposed to have died seized (the grantees at the same time purchasing an assignment of the mortgage), and in their deed the administrators covenanted in their capacity of administra- tors that they, as administrators, were lawfully seized free from incumbrances, except the mortgage, that they had in their said capacity good right to sell, etc., and that as administra- tors they would warrant and defend against the lawful claims of all persons, and signed and sealed as administrators ; in an action on covenant to warrant, after ejection by paramount title, it was held that they were answerable personally for damages, to wit, the consideration money and interest and costs of the eviction suit, not including the mortgage money nor the dower interest.* 1 Mass. Pub. Sts. c. 143, § 4 ; Hasty v. Johnson, 3 Me. 282. See supra, §279. 2 Newoomb v. Wing, 3 Pick. 168. » Fay V. Valentine, 8 Pick. 526 ; Tenney v. Poor, 14 Gray, 502. * Supra, § 455. ^ Studley v. Josselyn, 5 Allen, 118. " Sumner v. Williams, 8 Mass. 162. SALES AND CONVETANCES OF ASSETS. 273 • In another case, in a conveyance by administrators of sun- dry parcels of land, there was an exception from the operation of their covenant of warranty of all mortgages made by the intestate in his lifetime, and recorded. There were three prior mortgages and one unconditional conveyance of part of the land, all recorded. There was also an unrecorded bond of de- feasance relating to the land conveyed by the unconditional deed. The grantee in this last deed having evicted the pur- chaser from the administrators, who summoned them to de- fend his title, the latter brought action against them for breach of covenant of warranty. The defendants were allowed to prove plaintiff's knowledge of this bond of defeasance before he bought the land, and it was held that the deed and bond to- gether constituted a mortgage, and plaintiff failed to recover .1 § 471. Fraudulent Sales ; Right to Annul. — In case of sales of real or personal estate by executors or administrators, the property sold passes beyond the reach of creditors, and the purchasers are not generally bound to see that the purchase- money is applied properly to the purposes of the estate, even if they know that the property belongs to the estate and is not the property of the executor in his own right.^ But if the pur- chaser knows, or ought from the circumstances to suspect, that the executor or administrator is wrongfully using the proceeds of the sale, the purchaser may be held liable for the property purchased, either by the court annulling the sale and ordering a reconveyance, or holding him responsible for the value ; ^ and the fact that the executor applies the proceeds in payment of debts of his own to the purchaser, is a circumstance sufficient to affect the purchaser with knowledge.* Any fraud or coUu- 1 Foster v. Woods, 16 Mass. 116. * Hutohins v. State Bank, 12 Met. 423; Pield 0. Schieffelin, 7 Johns. Ch. 155; Raynerc. Fearsall, 3 Johns. Ch. 578; Brockenbrough v. Turner, 78 Va. 488 ; AUender v. Riston, 2 G. & J. 97. ' Elliott V. Menyman, 1 Lead, Cas. Eq. 89; Field o. Schieffelin, 7 Johns. Ch. 150; Petrie v. Clark, 11 Serg. & R. 377. ♦ Petrie v. Clark, 11 Serg. & R. 377 ; Field v. Schieffelin, 7 Johns. 18 274 LAW OP EXECUTORS AND ADMINISTBATOES. sion between the executor and the purchaser vitiates the sale, and renders the purchaser liable for the assets sold or their value ; ^ as, for instance, if the executor or administrator agrees with the intending purchaser to sell the land to him for a fixed price, in consideration of some benefit to the ad- ministrator.^ § 472. Purchase by Executor or Administrator. — An execu- tor or administrator can in no instance purchase the assets himself, whether he does it directly or under cover of other parties as nominal purchasers ; and if he does so purchase, he is held a trustee for those entitled to the estate, and is held to a very strict liability of accounting, particularly in re- gard to interest ; ^ or the estate may be put up for sale again, and if it brings a less price than that paid by the executor or his agent, their sale will be confirmed, but if it brings more their sale will be set aside.* § 473. Fraudulent Sales voidable, not void. — A sale by an executor or administrator, however, whether made to himself or fraudulently to another, is not ipso facto void, nor voidable by a stranger, but is voidable by those interested in the estate, if they assert their right in a reasonable time, and upon re- funding the purchase-money and otherwise doing equity be- tween the parties.^ But in New York, by statute, such sale is Ch. 150; Brookenbrough v. Turner, 78 Va. 438; Allender v. Kiston, 2 G. & J. 98. 1 Whale V. Booth, 4 T. R. 625, note; Scott w. Tyler, 2 Dick. 725; Utch- field V. Cudworth, 15 Pick. 31; Somes v. Skinner, 16 Mass. 348; Somes u. Brewer, 2 Pick. 191 ; Harrington v. Brown, 5 Pick. 521 ; Teackel v. Litch- field, 13 Allen, 420; Petrie v. Clark, 11 Serg. & K. 388; Oberlin College V. Fowler, 10 Allen, 545. = Hunt V. Frost, 4 Cush. 54. 8 Watson V. Toone, 6 Madd. 101; Clark v. Blackington, 110 Mass. 375, 376; Brooks v. Whitney, 11 Met. 420 ; Oberlin College v. Fowler, 10 Allen, 545; Conway v. Green, 1 H. & J. 151. * Burnett v. Eaton, 29 N. J. Eq. 477. 6 Teackel ». Litchfield, 13 Allen, 419; Ives ». Ashley, 97' Mass. 198; Williams v. Marshall, 4 G. & J. 376. SALES AND CONVEYANCES OP ASSETS. 275 void.^ If the property so sold is again sold by the purchaser, and conveyed to a bona fide purchaser for full value, having no notice of the fraud, the sale is valid against the heirs.^ The practice of holding a purchaser at a fraudulent sale who is cognizant of the fraud a trustee for those entitled to the property, is of equitable origin; and it has been held that a court of law has no right to set aside such a sale except upon proof of actual fraud, and that the mere purchase by the executor or administrator, whether by himself or by another, is not proof of such fraud ; ^ but probably courts of all kinds would now enforce the rule. The rule extends to sales not instituted directly by the executor or administrator, but by operation of law ; as, for instance, if judgment is obtained against the estate, and the land is taken on execution and sold, the executor should not buy the land, and if he does he gets a title defeasible by those interested in the estate, whether as creditors or distributees.* It has been held in a somewhat recent case that a corpora- tion which makes upon its books a transfer of its stock from an executor to a third person, and issues a certificate of stock to that third person, is not liable, although the transfer is fraudulent as to the persons interested in the estate.^ This case seems to go on the general ground that one who deals with the executor or administrator is not required to inquire into the fairness of the executor's or administrator's proceed- ings, unless he actually knows, or in reason ought to know, that a fraud is being perpetrated upon the estate.^ § 474. Mortgages of Real Estate. — It has already been said that the executor or administrator probably has the power to mortgage the personal estate to raise money to pay the debts. 1 Forbes v. Halsey, 26 N. Y. 53. ' Blood V. Hayman, 1-3 Met. 231 ; Robbins v. Bates, 4 Cush. 104. 3 Yeackel v Litchfield, 13 Allen, 419. * Marshall v. Carson, 38 N. J. Eq. 258. 6 Crocker v Old Col. R, R. Co.. 137 Mass. 417. « Hutchins v. State Bank, 12 Met. 425. 276 LAW OP EXECUTORS AND ADMINISTRATORS. This power, as to real estate, is in some States given by stat- ute.i For instance, in Massachusetts, besides providing for sales of the real estate to pay debts, provision is made for mortgages. The probate court having jurisdiction of the' es- tate of a deceased person, may, on petition and notice to all persons interested, if upon hearing it appears to be for the benefit of the estate, authorize an executor or administrator with the will annexed to mortgage any real estate of the tes- tator, for the purpose of paying debts, legacies, or charges of administration, or for the purpose of paying an existing lien or mortgage on the estate ; or it may authorize the executor or such administrator to make an agreement for the extension or renewal of such an existing mortgage. The court may, in like manner, authorize an administrator of the estate of an intes- tate to mortgage any real estate of such intestate, for the purpose of raising money to pay debts or to remove existing liens thereon, if all the heirs or their guardians assent in writing.^ The petition shall in all cases set out a description of the estate to be mortgaged, the amount of money necessary to be raised, and the purposes for which such money is re- quired ; and the decree of the court shall fix the amount for which the mortgage may be given, and the rate of interest which may be paid thereon, and may order the whole or any part of the money secured by the mortgage to be paid from time to time out of the income of the premises mortgaged.* The mortgage may contain a power of sale, and must set forth the fact that it is made under license of the court, and the date of the license.* § 475. Power of Sale in Will ; Survival of, to Administrator. — When a power of sale of land is given in a will to several executors, if there is nothing to indicate a special confidence in the executors, and the power is simply incident to the dis- charge of the duties of the ofl&ce, the power may be executed 1 Dolan, In re, 88 N. Y. 309. 2 Pub. Sts. c. 134, §§ 19, 20. ' Pub. Sts. c. 134, §§ 19, 20. 4 Pub. Sts. o. 142, § 6. BALES AND CONVEYANCES OP ASSETS. 277 by the remaining executors, if one dies or resigns.^ Ordi- narily, such a power does not go to the administrator cum testamento annexo,^ but by statute in many States it may be exercised by such administrator.^ Under such statutes, only a power to sell land to pay debts or legacies is transferred to an administrator cum testamento annexo.* A power to sell land for other purposes collateral to the ordinary adminis- tration of the estate, does not go under the statute; for example, to manage the property and invest the proceeds for accumulation, or maintain the widow and child, or to exer- cise any discretionary power confided to the executor by reason of his personal fitness and fidelity.^ It may be noticed in passing that by statute in Massachu- setts, if a will authorizes a sale of real estate by an executor, upon the consent of a person who has deceased, the probate court which has jurisdiction of the settlement of the estate, may in its discretion, and if all parties interested assent, au- thorize the sale and conveyance of the real estate as though no consent was required.® § 476. Fo-wer of Sale in 'Will, including Power to Mortgage. — It is held that a power of sale given in a will may be con- strued to include a power to mortgage the estate. The prin- ciple upon which such an extension is made is that if the power is plainly upon the face of the whole will given to the executor for the purpose of discharging a particular burden upon the estate of the testator, and it is evident that the ob- ject may be better attained by a mortgage upon the land than 1 Tainteri). Clark, 13 Met. 225; Warden v. Richards, 11 Gray, 277; Chandler v. Rider, 102 Mass. 270. ^ Lamed v. Bridge, 17 Pick. 339 ; Tainter v. Clark, supra ; Ifaundorf V. Schumann, 41 N. J. Eq. 14; Moody v. Fulmer, 3 Grant Cas. 17. 8 Clark V. Denton, 36 N. J. Eq. 424; Weimar v. Fath, 43 N. J. L. 1; Moody V. Fulmer, supra. See Appendix of Statutes. ^ Lantz V. Boyer, 81 Pa. St. 327. « Ross V. Barclay, 18 Pa. St. 183. 6 Mass. Pub. Sts. c. 142, § 2. 278 LAW OP EXECUTORS AND ADMINISTEATOES. by a sale of it, the court will construe the power to sell as in- cluding a power to mortgage.^ § 477. Miscellaneous Powers relating to Conveyances of Real Estate. — Many miscellaneous powers are given to executors or administrators in regard to sales or conveyances of land, by statute in various States, to which the reader is referred. In many States a special statutory power is given, by which an executor or administrator may be licensed by the probate court to convey by proper deed real estate which the deceased has sold or contracted to convey.^ In this case, the license of the probate court merely authorizes the executor or administrator to make the conveyance. The title passes by the deed, and not by the order of the court.* The license will be granted only when the contract of the deceased is valid and binding, not when it is not capable of enforcement ; for example, when it is oral, and therefore bad under the statute of frauds.* The executor has no power to deliver a deed made by the de- ceased. He must apply for leave to make a new deed.* By another statute in Massachusetts, executors or adminis- trators may, after the same notice that is required on a petition by them for a license to sell real estate, be authorized by probate courts to release and discharge, upon such terms and conditions as may appear to be proper, a vested, contingent, or possible right or interest belonging to the persons or estates by them represented, in or to real or personal estate, when such release or discharge appears to be for the benefit of such persons or estates.* By still another statute in Massachusetts, executors and administrators may be authorized by probate courts, after notice to all persons interested or on their assent thereto, to sell and convey or release, upon such terms and in such man- 1 Loebenthal v. Raleigh, 36 N. J. Eq. 171. 2 Mass. Sts. 1783, c. 32, § 4; Root v. Blake, 14 Pick. 271. 8 Grant Coal Co. v. Clary, 59 Md. 441. « Bates V. Sargent, 51 Me. 423. 6 Karmane v. Hoober, 3 W. & S. 253. » Mass. Pub. Sts. c. 142, § 4. SALES AND CONVEYANCES OP ASSETS. 279 ner as said courts may order, lots in cemeteries belonging to the persons or estates represented by them.^ A provision of the United States statutes in regard to home- stead rights deserves a passing notice. By this provision, if both parents die, leaving a minor child or children, the execu- tor or administrator may, within two years from the death of the surviving parent, and in accordance with the laws of the State in which such children for the time being have their domicil, sell the land for the benefit of the children, but for no other purpose, and the purchaser shall acquire an absolute title, and be entitled to a patent, on payment of the office fees and a specified sum.^ 1 Mass. Pub. Sts. c. 142, § 5. * U. S. Rev. Sts. § 2292. 280 Li.W OF EZECUTOBS AND ADMINISTRATOES. CHAPTEE XVn. PAYMENT OP LEGACIES. 480. 481. i 478. Legacies subordinate to Debts. 479. Befunding Bond of Legatee, when. Legacy as a Satisfaction of the Debt. Presumption of Satisfaction re- butted by. Circumstances. 482. Legacy to the Debtor of the Deceased. 483. Set-off of Legacy and Debt. 484. Set-off in case of Legacy to Wife of Debtor of Deceased. 485. Effect of Appointment of Debtor as Executor. 486. Appointment of Creditor as Ex- ecutor. 487. Priority of Legacies to future or contingent Debts. 488. Payment of Legacies as against unknown Debts. 489. Abatement of Legacies ; Con- tribution. 490. Assent of Executor to Legacy. 491. Assent, express, implied, or pre- sumed. 492. Assent to Legacy to Executor. § 493. Effect of Assent on Title of Leg- atee ; Action at Law for Leg- acy, and Suit in Equity. 494. Revocation of Assent ; Eecov- ery of Legacy. 495. Time, of payment of Legacies. 496. Time of payments in United States ; Residuary Legacy. 497. To whom a Legacy is to be paid. 498. Legacy to Married Woman, to whom payable. 499. Same subject. 500. Security required from Life-ten- ant, when ; Absent Legatee. 501. Liens on Legacy ; Trustee Pro- cess ; Bankrupt Legatee ; Death of Legatee. 502. Interest on Legacy ; Specific Legacy. 503. Interest on General Legacies. 504. Legacy to a Child, Interest on. 505. Interest on Legacy to Widow in lieu of Dower. 506. Rate of Interest on Legacy. 507. Money in which Legacies should be paid. § 478. Legacies subordinate to Debts. — The duties of an executor, after the payment of the debts of the estate, extend to the payment of legacies given by the will. The general subject of legacies obviously belongs to the law of wills, and therefore no discussion will be here given of who may be legatees, or what are general and what specific legacies, or of the construction of particular devises, except so far as may be necessary to explain the duties of the executor in paying the PAYMENT OP LEGACIES. 281 legacies. The payment of legacies is subordinate to the pay- ment of debts of the testator, and the legatees are not en- titled to the payment of their legacies until all the debts are discharged.^ At common law, an executor who paid or delivered a legacy, even though specific, to the legatee, was answerable to the creditors of the estate for the property which he had so deducted from the fund available for the payment of their debts, with interest from the time of the payment of the legacy.^ § 479. Refunding Bond of Legatee, when. — In the United States the subject of paying legacies, like the subject of pay- ment of debts, is generally regulated by statute, by which, in connection with the statutes regulating payment of debts, the executor is given a certain limited time in which to collect the estate and to satisfy those debts of which he has had notice within the time limited by law ; and there is often a further provision, that if any legatee sues for his legacy within the time given to the executor for the payment of debts, — for example, in Massachusetts, within two years from the execu- tor's appointment, — the executor may require the legatee to give bond to refund any part of the amount so paid which may be necessary to pay debts which may afterwards be proved against the estate, and to indemnify the executor against all loss and damage on account of such payment.^ § 480. Legacy as Satisfaction of Debt. — Before proceeding to a discussion of the order of payment of legacies, certain preliminary considerations should be observed, one of which is that it was an established rule of courts of equity that when a debtor deceased bequeathed to. his creditor a legacy equal to or exceeding the amount of the debt, this bequest should be presumed, in the absence of any contrary intention, expressed 1 Coddington v. Bispham, 36 N. J. Eq. 224; Edmunds v. Scott, 78 Va. 720. 2 Wms. Ex'rs, 1340; Spode v. Smith, 3 Russ. 511. 8 Mass. Pub. Sts. c. 136, § 20; Coddington v. Bispham, 36 N. J. Eq. 224; Woodward v. Woodward, 9 N. J. L. 115, ll6. See also infra, §§ 487, 489, 495, 498. 282 LAW OP EXECUTORS AND ADMINISTRATORS. or inferrible from the will, to be meant by the testator as a satisfaction of the debt.^ This rule, however, was regarded with disfavor by the courts in later cases, and they were in- clined to restrain its operation in all cases where, from the circumstances to be collected from the will, it might be in- ferred that the testator had a different intention.^ So little has this rule been favored by the courts, that in a Massa- chusetts case the court said that if nothing were said on the subject in a will, the modern rule of construction would be that a bequest is to be regarded as a bounty, and not as the payment of debt, unless a contrary intent is expressed ; ^ but in ■ a later case the rule is stated to be that a legacy exactly corresponding in amount and time of payment to an existing debt of the testator to the legatee, and given by a will which contains no provision indicating a different inten- tion, is to be presumed to be in satisfaction of the debt, and not in addition thereto.* § 481. Presumption of Satisfaction rebutted by Circum- stances. — Even when the rule is followed, slight circum- stances in the will are regarded as showing a different intent. Thus, where the testator has left a legacy of less amount than the debt, or of a different nature, or upon conditions, or not equally beneficial in some particular, it is inferred that he did not intend the legacy to operate as payment of the debt.® So where the debt was not contracted until after the 1 Wms. Ex'rs, 1297; Allen v. Merwin, 121 Mass. 379; Strong v. Williams, 12 Mass. 391; Brown v. Dawson, Pr. Ch. 240; Fowler v. Fowler, 3 P. Wms. 353; Atkinson v. Littlewood, L. R. 18 Eq. 595; Fitch V. Peckham, 16 Vt. 150; Byrne v. Byrne, 3 Serg. & R. 54; Horner w. McGaughy, 62 Pa. St. 189; Edelen v. Dent, 2 Gill & J. 185. 2 Haynes v. Mico, 1 Bro. Chan. Ca. 131; Hinchcliffe v. HinchclifEe, 3 Ves. 529; Atkinson v. Littlewood, L. R. 18 Eq. 595; Edelen v. Dent, 2 Gill & J. 185; Byrne v. Byrne, 3 Serg. 8e R. 54; Horner ». McGaughy, 62 Pa. St. 189. » Smith V. Smith, 1 Allen, 129, 130. * Allen V. Merwin, 121 Mass. 379. « Strong t;. Williams, 12 Mass. 393; Bellasis v. Uthwatt, 1 Atk. 428; PAYMENT OP LEGACIES. 283 making of the will, it is considered evident that the testa- tor could not have had any intention to satisfy the debt when he made the legacy.^ Nor does the rule apply when the debt was due on a current account, for it is presumed that the balance of account might be unknown to the testator .^ But this presumption may be rebutted by evidence aliunde, to show that the bequest was intended as satisfaction of the debt.^ So where a legacy is uncertain or contingent, as where it is given upon contingency of the legatee surviving a particular person or party,* or where the legacy is part of a residue, it is not considered by the courts of equity to be intended to satisfy the debt.^ And so where the legacy is not payable immediately after the death of the testator ; for the debt is due at the death of the testator, and therefore the legacy should be, if it were to operate as satisfaction of the debt.^ So the legacy of a specific chattel, however great its value, is not considered satisfaction of a debt unless it is so stated in the willJ The presumption of satisfaction may also be rebutted by inconsistent provisions in other portions of the will, as where there is an express direction for the payment of all debts and legacies ; for this direction to pay all debts is inconsistent with a presumption that the testator meant the debt to be satisfied by legacy.^ A collection of numerous cases affect- ing this rule will be found in the note to Strong v. Williams, below cited. Eaton V. Benton, 2 Hill, N. Y. 576; Partridge v. Partridge, 2 Harr. & J. 63; Byrne v. Byrne, 3 Serg. & R. 54; Edelen v. Dent, 2 GiU & J. 185. 1 Cranmer's Case, 2 Salk. 508; Jeffs v. Wood, 2 P. Wms. 132. 2 Rawlins v. Powel, 1 P. Wms. 299. 8 Williams v. Crary, 8 Cow. 246. * Crompton v. Sale, 2 P. Wms. 553. 6 Devese v. Pontet, 1 Cox, 188; Nichols v. Judson, 2 Atk. 300. ° Clark V. Sewell, 3 Atk. 96, per Lord Hardwicke. ' Byde v. Byde, 1 Cox, 49 ; Strong v. Williams, 12 Mass. 394. 8 Chancey's Case, 1 P. Wms. 410, 411; Richardson v. Greese, 3 Atk. 68; Strong v. Williams, 12 Mass. 395; Smith v. Smith, 1 Allen, 129. 284 LAW OP EXBCUTOES AND ADMINISTRATORS. § 482. Legacy to Debtor of Deceased. — In regard tO the converse of this rule, — namely, the effect of a legacy be- queathed to a debtor of a testator, no presumption of a re- lease or extinguishment of the debt exists ; but such intention must be clearly expressed.^ And if the testator expressly bequeaths the debt to his debtor, this amounts to no more than a release of the debt by will, and the debt is assets sub- ject to the payment of the testator's debts.^ And so if he ex- pressly releases the debt to the debtor in his will, this release takes effect subject to the payment of the testator's debts.^ § 483. Set-off of Legacy and Debt. — It was the rule at common law and is also established by statute, that in any case where the legatee is indebted to the testator the execu- tor may, when he pays the legacy, retain so much of it as is necessary to satisfy the debt by way of set-off.* Thus it is provided by statute in Massachusetts that when payment of legacies is being made, any debt due to the estate from the devisee or legatee shall be set off against and deducted from the legacy, and the probate court shall settle the validity and amount of the debt, and make such orders as will carry into effect the set-off or deduction. This set-off does not prejudice any remedy of the executor for the recovery of the debt, nor affect the liability of the devisee or legatee for the excess of his indebtedness over the amount of his legacy.* And it has been held that an executor may retain this set-off, although the remedy for collecting such a debt was at the death of the testator barred by the statute of limitations.® But the contrary is held in Massachusetts, on the ground that 1 Wms. Ex'rs, 1304; Brokaw v. Hudson, 27 N. J. Eq. 136. 2 Rider v. Wager, 2 P. Wms. 331, 332. » Hobart v. Stone, 10 Pick. 215. * Smith V, Smith, 3 Gifl. 263; Clark v. Bogardus, 2 Edw. Ch. 387; Brokaw v. Hudson, 27 N. J. Eq. 136; Strong v. Bass, 35 Pa. St. 333. 6 Pub. Sts. 0. 136, §§ 22, 23; Nickerson v. Chase, 122 Mass. 296. 8 Courtenay v. Williams, 3 Hare, 539 ; Rose v. Gould, 15 Beav. 189 Coates V. Coates, 33 Beav. 249.. PAYMENT OF LEGACIES. 285 the statute above cited refers only to claims which were col- lectible against the deceased, and might be " set off " in an action at law ; and the authority of the English cases is said to be destroyed in Massachusetts by the fact thdt a legacy in that State is considered an absolute debt at law, to be sued for as such, whereas in England it is not a debt but a claim, which could only be enforced in equity unless after the assent of the executor to the legacy ; and when it is sought so to en- force it, those courts will compel the legatee to accept it on equitable terms, and thus may enforce the payment of a debt although barred by the statute.^ This rule of set-off also ap- plies, although the legatee has died before the testator, and the legacy by statute survives to his children or issue,^ and applies as between the executor and a creditor of the legatee who has attached the legacy.^ § 484. Set-off in case of Iiegao7 to Wife of Debtor of the Deceased. — At common law a legacy to a debtor's wife was regarded as a legacy to her husband ; but in equity it was held that the wife was entitled to a support for herself and her children out of such legacy prior to the extinguishment of her husband's debt, and therefore the executor could not set off the debt against the legacy, except subordinate to this right of the wife to her support and that of her children.^ But if the wife's equity was discharged, as by her death, the legacy became the absolute property of the husband subject to his debt.^ In most of the United States at the present time, by statute, a married woman is entitled to hold property given to her by bequest as her own separate property, and therefore these questions do not ordinarily arise. § 485. Effect of Appointment of Debtor as Executor. — The 1 Allen V. Edwards, 136 Mass. 141. 2 Denise v. Denise, 37 N. J. Eq. 166. » Strong V. Bass, 35 Pa. St. 333. * Elibank v. Montolieu, 5 Vea. 737; Carr w. Taylor, 10 Ves. 574. B Banking v. Barnard, 5 Madd. 32. 286 LAW OP EXECUTORS AND ADMINISTEATOES. question of the effect of appointing a debtor as executor also gave rise at common law to numerous cases in which it was held that such a nomination operated as a release or extin- guishment of debt, on the ground that as the debt was merely the right to recover a sum of money by action, and as the executor could not maintain an action against himself, the ap- pointment suspended the action ; and when a personal action was once suspended by the voluntary act of the party entitled to it, it was forever gone and discharged.^ It was, however, considered in equity and is now generally established law, that the executor is supposed to have paid the debt to the estate, and therefore is charged with the amount of the debt as assets in his hands for the payment of debts, and this amount must be accounted for by him in the probate court as assets ac- tually realized. The debt is, however, extinguished.^ And the executor and sureties are liable for the amount of the debt in the same manner as if he had received it from any other debtor of the deceased.^ So a debt due from the firm of which the executor is a member is to be considered assets of the estate, and to be accounted for in the same way as otlier assets.* Even under the rule at common law the appointment of a debtor as executor did not apply in cases where there were not enough assets to satisfy the testator's debts, for in such a case the release by the creditor from the debt would be ab- solutely voluntary .5 Nor did this rule apply when a creditor 1 Wentw. Off. Ex. c. 2, p. 73, I4th ed.; Soverhill v. Suydam, 59 N. Y. 140; Ipswich Manufacturing Co. v. Story, 5 Met. 313; Pusey v. Clemson, 9 Serg. & R. 208. " Ipswich Manuf . Co. v. Story, 5 Met. 310 ; Leland v. Felton, 1 Allen, 531; Hobart u. Stone, 10 Pick. 215; Soverhill v. Suydam, 59 N. Y. 142. * Leland v. Felton, supra; Choate v. Arrington, 116 Mass. 552; Stevens V. Gaylord, 11 Mass. 269 ; Winship v. Bass, 12 Mass. 198 ; Bench- ley V. Chapin, 10 Cush. 173; Sigourney v. Wetherell, 6 Met. 553; Com- monwealth V. Gould, 118 Mass. 800, 307; Piper's Est., 15 Pa. St. 533. * Leland v. Felton, supra. 6 Holiday v. Boas, 1 Roll. Abr. 920, 921 ; Woodward v. Lord D' Arcy, Plowd. 188. PAYMENT OP LEGACIES. 287 was appointed administrator by operation of law, since this suspension of the right to recover the debt being involuntary did not discharge the debt, but only caused temporary sus- pension of suit for the recovery of it.^ § 486. Appointment of Creditor as Executor. — The effect of the appointment of a creditor as executor has been already considered in regard to his right to retain his debt out of the assets, which by common law he might do in preference to all other debts of the same degree.^ But in the United States this right, as has been already seen, is generally abrogated, and the executor is obliged to enter his own claim against the estate among the other debts,, receiving therefor such dividend as is paid to other creditors of equal degree, if the assets of the estate are not sufl&cient to pay all debts in fuU.^ § 487. Priority of Legacies to contingent or future Debts. — Numerous questions arose under the common law as to the duty of an executor for the payment of legacies in regard to contingent debts and liabilities. One of the earliest cases in the time of Queen Elizabeth decided that as between a legacy and a bond which was not forfeited, the payment of the legacy was compellable, although the obligation of the bond, if for- feited, would cover all of the estate.* In the courts of equity it was held that the executor was not bound to pay the legacy, unless sufficient indemnity should be given to him to refund the legacy in case it should be necessary for the payment of debts.^ In Massachusetts no such power has yet been exer- cised by courts of equity ; and it is held that the only remedy for the creditor in such case is to wait till his claim becomes 1 Wankford v. Wankford, 1 Salk. 303; Wentw. OfE. Ex., c. 2, p. 76, 14th ed. Cf. supra, § 482. 2 Wms. Ex'rs, 1316; supra, § 420. ° See Appendix of Statutes; Green v. Russell, 132 Mass. 536. * Nector v. Gennet, Cro. Eliz. 466. ^ Cochrane w. Robinson, 11 Sim. 378; Fletcher ». Stevenson, 3 Hare, 380-370; Dobson v. Carpenter, 12 Beav. 370. 288 LAW OP EXECUTORS AND ADMINISTRATORS. an actual cause of action, and then pursue the assets in the hands of legatees or devisees.^ There is, however, a provision by statute for the payment of future debts. Thus, in Massachusetts a creditor whose right of action does not accrue within two years from the giving of the administration bond, for example, a promissory note so coming due may at any time before the estate is finally adminis- tered, present his claim to the probate court, and if it appears to be justly due, the court orders the executor or administra- tor to retain enough of the assets to meet the claim, unless a sufficient bond for the same is given by some one interested in the estate ; ^ and the court will make this order, although so much of the estate has already been paid away that not enough is left to meet the claim.^ § 488. Faymeat of Legacies as against unknown Debts. — Another important question under the English system of pro- bate was, whether an executor or administrator might legally pay legacies, as against creditors of whose claims he had no notice. The authorities appear to show that the mere want of notice of a debt or claim against the estate will not excuse an administrator or executor from the payment of it, notwith- standing that he has paid legacies in ignorance of the existence of the debts.* In the United States this subject is much sim- plified by the provisions requiring creditors to give notice of their claims to the executor or administrator within a speci- fied time after his appointment, under penalty of having their claims barred if they do not do so. Under such a system, of course, the executor is protected in paying legacies after the payment of all the debts and claims against the estate of which he had notice within the time prescribed by law.^ 1 Ames V. Ames, 128 Mass. 278; Spelman v. Talbot, 123 Mass. 489. 2 Hammond ». Granger, 128 Mass. 272; s. c. 131 Mass. 351; Pratt v. Lamson, 128 Mass. 528. * Hammond ». Granger, 131 Mass. 351. Cf. supra, § 417. < Wms. Ex'rs, 1349-1352. « See Appendix of Statutes, PAYMENT OP LEGACIES. 289 § 489. Abatement of Legacies. — The subject of abatement of legacies is one belonging more properly to a treatise on the law of wills and the construction of wills ; but, in passing, it may- be noticed that debts and specific legacies are to be paid in preference to general legacies and devises, if the assets are not enough for all, even if the general legacies go unpaid.^ And in the absence of any special provisions in the will, all the gen- eral legacies and devises must abate equally their proportion of the whole amount bequeathed,^ and annuities, if not payable from any particular fund, stand on the same footing as general legacies.* This rule as to the abatement of. legacies is subject to any expressed provision of the testator in his will directing the manner or the order of priority in which the various legacies shall abate in case of a deficiency of assets. For instance, a testator may give one general legatee a priority over others.* But this intention to give one legacy priority over others must be clearly and distinctly shown by the will ; otherwise, it will not be allowed.^ The cule as to abatement is also subject to this further exception, that where a legacy is given to one in satisfaction or lieu of some valuable right, for example, where a legacy is in lieu of dower or curtesy, the legatee is deemed a quasi purchaser, and his legacy will not abate until those of mere beneficiaries of the same class are exhausted.^ The mere meritorious consideration of near relationship to the testator 1 Towle V. Swasey, 106 Mass. 100-104; Humes v. Wood, 8 Pick. 478; Wallace u. Wallace, 23 N. H. 155; Knecht's App., 71 Pa. St. 333; Mollaa V. Griffith, 3 Paige, 402; Bliven v. Seymour, 88 N. Y. 475; Corwine v. Corwine, 23 N. J. Eq. 368. 2 Fonbl. Treat. Eq., Book IV. Parti, oh. 2, § 5; Emery v. Batchelder, 78 Me. 233; Farnum ». Bascom, 122 Mass. 282; Titus v. Titus. 26 N. J. Eq. 117. * Emery v. Batchelder, supra. * Lewin v. Lewin, 2 Ves. 415. 5 Towle V. Swasey, 106 Mass. 104, 105; Everett v. Carr, 59 Me. 330, 331 ; Swazey v. American Bible Society, 57 Me. 523. • Pollard t>. Pollard, 1 Allen, 490; Farnum v. Bascom, 122 Mass. 282; Howard v. Francis, 30 N. J. Eq. 448. 19 290 LAW OP EXECUTOEB AND i;DIinNISTRATORS. by blood or marriage will not have that effect ; but it has been held that a general legacy for the support, maintenance, or education of a near relative, otherwise unprovided for, shall have a preference over other general legacies.^ If the assets generally bequeathed are not sufficient to pay all the debts, all the specific legatees must abate their legacies equally, as debts have the prior claim upon the whole estate over all voluntary dispositions.^ The whole subject of abatement of legacies depends entirely Tipon the construction of the will, and further discussion of it would be inconsistent with the limits of this work. § 490. Assent of Executor to Legacy; Right of Legatee to Possession. — The right of a legatee to his legacy is at common law inchoate, subsequent to the probate, of the will,- until the executor has assented to the legacy.. This rule is intended to prevent a testator from defrauding his creditors by bequeath- ing all his property to various people,, who, if their right were complete at probate of the will, might take possession of the property to the defrauding of the creditors.^ The legatee's right being therefore imperfect, he has no right to take pos- session of the thing bequeathed;, and if he does so,. the execu- tor may maintain an action of trespass or trover against hint, or if it be in the possession of the legatee, the executor may sue to recover possession of it.* § 491. Assent express, implied^ or presumed. — This assent of the executor may be expressed or implied from indirect ex- pressions or particular acts, and an implied assent is equally available as an express.^ For instance,, if a horse is be- 1 Bliven v. Seymour, 88 N. Y. 475. 2 Sleeoh v. Thorington, 2 Ves. 561,. 564; Clifton v. Burt, 1 P. Wms. 680; Farnum v. Basoom, 122 Mass. 282; Shreve v. Shreve, 10 N. J..Eq.. 385i ' Wentw. Off. Ex., 69^ 409, 14th ed.; Andrews w. Hunneman, 6 Pick. 129; Matthews v. Turner, 64 Md. 109. ^ Wentw. Off. Ex., 409i 14th ed.; Mead ». Lord Orrery, 3 Atk. 239. * Eeau. Rhodes, 5 Ired. Eq. 148; Edney «. Bry8on,,ajones, L. 365; PAYMENT OP LEGACIES. 291 queathed, and the executor requests the legatee to dispose of it,, or if a third person proposes to purchase the horse of the executor and he directs him to buy it of the legatee, or if the executor himself purchase the horse of the legatee or offers money for it, any of these facts amounts to an assent by imr plication to the legacy.^ But the expressions or circumstances from which the assent is to be inferred must be unambiguous, inasmuch as it subjects the executor to liability for a devastavit if he assents to it, and there is a deficiency of assets for the payment of debts.^ If the executor assent to the interest of A. in a bequest of a term of years to A. for life, and remainder to B., this assent is sufiScient to vest B.'s interest in him also, since the assent is to the whole legacy .^ The assent of the executor may sometimes be presumed, as where a chattel specifically bequeathed remains in the posses- sion of the legatee a long time without any objection by the executor.* The assent to a legacy may be given by an executor before his appointment.* If there are several executors, the assent of any one is eaaugh to transfer the right of possession to the legatee.? § 492. Assent of Ezecutor to Legacy to himsell. — - In^ case of Thompson v. Schmidt,, 3 Hill (S. C) 156; McClaDahan v. Davis, 8 How. 170, 178. 1 Wentw.. Off. Ex., 414, 14th ed; 2 1 Rop. Leg. 736; Rea o. Rhodes, 5 Ired.Eq.. 148; George v. Goldsby, 23 Ala. 326. » Welcden v. Elkington, Plowd. 521; Lampet's Case, 10 Co. 47 ft,- Hunter v. Green, 22 Ala. 329; Thsasher u.. Ingram, 32 Ala. 645; Hearne V. Kevan,.2:Ired. Eq. 34; Acheson o. MeCombs, 3 Ired^ Eq, 554; Lewis v. Smith, 4 Dev. & Bat. L. 326; Conner v. Satchwell, 4 Dev. & Bat. L. 72'; Hall V. Hall, 27 Miss. 458; Parker w. Chambers, 24 Ga. 518; Frazer v. Bevill, 11 Gratt: (Va.) 9; Lottu. Meacham, 4 Fla. 144^ Finch v. Rogers, 11 Humph. 559. * Andrews v. Hunnieman,. 6 Pick. 126; Hall v. Hall, 27 Miss; 458; Parker v. Chambers, 24 Ga. 518; Vaughan v. HowtU'd, 75 Ga. 285; Fra- zer v.. Bevill, 11 Gratt (Va.) 9; George u. Goldsby, 23 Ala. 326. s Wentw. Off. Ex., 82, 14th ed. ; Godolph. Pt. 2, c. 20, § 1. » Adie ». Cornwell, 3 T. B. Mon. 275.- 292 LAW OP EXECUTORS AND ADMINISTRATOES. a legacy to the executor himself, an assent is necessary before the property in the thing bequeathed vests in him. This as- sent may be express or implied/ but naturally is more often implied from the conduct or indirect expressions of the ex- ecutor. Thus, if he, by deed or will or sale, assumes to dis- pose of the legacy as his own, he is presumed to have assented to it ; 2 but this presumption does not hold when he disposes of the legacy in his character of executor.^ So, if he takes the rent on a lease bequeathed to him, or repairs the tenements at his own expense, or excludes a co-executor from possession of the premises, these acts indicate his assent to the legacy.* § 493. ZiSect of Assent on Title of Legatee ; Action for Legacy. — The effect of the assent of the executor to a spe- cific legacy is, at common law, to vest the interest in the chattel in the legatee, who thereupon has the right to the possession of the thing bequeathed, and may bring trover even against the executor to recover the possession of the bequest.^ And as to a general legacy, such assent is a condition precedent to the right of action for the legacy in the legatee, at common law, although the legatee might pro- ceed in equity without such assent, since in the equitable action all the conflicting interests would be considered, and the legacy ordered to be paid only if sufiBcient assets ap- peared, thus rendering the assent of the executor superfluous.^ In many of the United States the necessity of the assent of an executor to a legacy is done away with, and the legatee ' Murphree v. Singleton, 37 Ala. 412. ^ Com. Dig., Adm'r, C. 6; Fenton v. Clegg, 9 Ex. 680; Merritt v. Windley, 3 Dev. 399. 3 Cheyney & Smith's Case, 1 Leon. 216. 4 Com. Dig., Adm'r, C. 6; Cheyney & Smith's Case, 1 Leon. 216; Anon. Dyer, 277 h. 5 Andrews v. Hunneman, 6 Pick. 129; Matthews v. Turner, 64 Md. 121; Kent v. Somerville, 7 G. & J. 265; Onondaga Tr. & Dep. Co. v. Price, 87 N. Y. 547 ; Eberstein v. Camp, 37 Mich. 177; Kea v. Rhodes, 5 Ired. Eq. 148. » Coates V. Maokie, 43 Md. 127. PAYMENT OP LEGACIES. 293 may sue for his legacy at law after a certain time has elapsed from the beginning of administration ; but the executor may defend such a suit by showing that the assets of the estate are not sufficient to pay the debts.^ Such a suit may be brought against the administrator cum testamento annexo, while the estate is unsettled, just as it might have been against the ex- ecutor.2 And if the legatee dies, the action may be brought by his personal representatives, but not by his heirs.* § 494. Revocation of Assent ; Recovery of Legacy. — The assent of an executor once given is at law irrevocable, and vests the property in the thing bequeathed in the legatee.* And if the legatee has taken possession of the thing be- queathed or been paid his legacy, he cannot be compelled to redeliver or refund, except when the executor finds that valid debts, which have been through no fault of his unknown to him till after such assent, render the assets insufficient to pay the debts of the estate. In such a case, the executor may, by bill in equity, compel the legatee to refund, if he can do so without injury to the interests of innocent third persons.^ This case is not likely to arise in the United States, on ac- count of the very full statutory provisions limiting the recov- ery of debts against the estate to those of which notice has been given to the executor within a certain limited time, and prescribing the proper mode of settling the estate ; and such a possibility is further guarded against by the provisions in re- gard to compelling the legatee to give a refunding bond.® 1 Mass. Pub. Sts. c. 136, § 19; Allen v. Edwards, 136 Mass. 138; Pol- lard V. Pollard, 1 Allen, 490; Epler v. Epler, 13 111. App. 472. 2 Smith V. Fellows, 131 Mass. 20. 8 Osgood V. Foster, 5 Allen, 560. 4 Wentw. Off. Ex., 415, 14th ed.; Com. Dig. Adm'r, C. 8; Onondaga Tr. & Dep. Co. v. Price, 87 N. Y. 547; Eberstein v. Camp, 37 Mich. 177. 6 Nelthovp V. Biscoe, 1 Chan. Cas. 186; Walker v. Hill, 17 Mass. 384, 385 ; Davis v. Newman, 2 Rob. (Va.) 664; Gallego v. Atty-Gen., 3 Leigh, 485, 486; Alexander v. Fox, 2 Jones, Eq. 106. 6 Supra, § 479. 294 LAW t»F EXECUTORS AND ADMINISTRATORS. § 495. Time of Payment of Legacies. --- The question, when legacies shall be paid, obviously depends largely upon the direc- tions of the testator in the will ; and the construction of wills is a subject which does not properly lie within the scope of this work. In the absence, however, of directions in the will, there was a rule of the civil law which protected the executor from suit for the legacy till after the lapse of a year from the testa- tor's death, and this rule was adopted by the courts of England, and is now the law in most of the United States.^ A legacy, therefore, unless it is otherwise specified in the will, is payable at the end of one year from the testator's death, and interest begins to run from that time.^ This rule is based upon the fact that the executor needs a certain amount of time gen- erally to look into the estate and see if the assets are sufBcient to pay the debts. Therefore, if the case shows that there are without doubt assets enough to pay all debts and more, the court has intimated that it will compel the executor to pay legacies within the year.^ § 496. Time of Payment in TTnited States. — In some States this period of a year before payment of legacies is given by statute.* In Massachusetts there is no statute upon this sub- ject ; but the court has allowed a suit agaimst an administra- tor cum testamento annexo, for a legacy, brought a little more than a year after the appointment of the administrator, and the opinion takes a strong leaning towards holding that one year is given to the executor before he is liable to such a suit.® In the same State, it is provided by statute that every legatee may recover his legacy in an action at common law ; and no limitation to the time within which such an action 1 Wood V. Penoyre, 13 Ves. 333, 834; Pearson v. Pearson, 1 Sch. & Lef . 11; Smith v. Lambert, 30 Me. 140; Wheeler v. Ruthven, 74 N. Y. 431. 2 Smith V. Lambert, supra; Wheeler ». Buthven, iupra. See infra, §§ 502, 503. s Garthshore v. Obslie, 10 Ves. 13. * Smith V. Lambert, supra. 5 Brooks 0. Lynde, 7 Allen, 64, 67. PAXMENT OF LEGACIK8. 295 :inay be brought is imposed "by the statute relating to the bringing of suits against executors, in cha,pter 136 of the Pub- lic Statutes.^ But if the executor is required by the legatee to pay the legacy within two years after giving his adminis- tration bond, the probate court will require the legatee to give ibond to the execut&r to refund the amount so to be paid, or so much thereof as may be necessary to satisfy any demands that .may be afterwards recovered against the estate of the de- ceased, and to indemnify ,the executor against any loss ajid damage on account of such payment;^ The effect of these statutes and decisions seems to be that the executor cannot be required to pay a legacy within a year from his appoint- ment, and that if he is required to pay it within two years, he -may require in return a refunding bond. In case of a residuary legacy, it cannot be known whether the legacy will be valid until it is known whether the debts and other legacies will exhaust the assets. The right of a residu- ary legatee to the payment of his legacy being so dependenlj, he cannot bring suit 'for the payment thereof, without showing such facts as ju^ify the payment either of the whole or a part of the residue to him, — that is, that the executor has assets not -needed to pay debts or the other legacies, and that the pay- ment will not be injurious to the estate ; and these facts may .not arise till long after the end of the year ; ^ but the legacy js due at the end of the year, so far as concerns interest.* it is also provided by statute in Massachusetts that when an annuity, or the use, rent, or income of property, real or j)ersonal, is given by will to or in part for the benefit of a person for life, or until the happening of a contingent event, such person shall be entitled to receive and enjoy the same from and after the decease pf the testator, unless it is other- 1 Pub. Sts. c. 136, § 19. " Pnb. Sts- c. J36, § 20. 8 Minat v. Amory, 2 Cmb. 382; Treadwell v. Cwdis, 5 Gray, 352; Smith V. Lambert, 30 Me. 146; Gibnan ». Gilman, 63 N. J. 41. < See infra, §§ 502, 503. 296 LAW OP EXECUTORS AND ADMINISTRATORS. wise provided in the will.^ If the person entitled to the annuity, rent, interest, or income dies, or if the contingent event happens in the middle of a year from the time when the last income, etc., was due, the income, etc., shall be appor- tioned, and the person entitled to it shall receive a proportion- ate share of the year's income, unless it is otherwise provided in the will. No suit can be brought against the executor for such share of the annuity until after one year from his giving bond.2 § 497. To -whom a Legacy is to be paid. — In the payment of legacies the executor acts at his own peril, unless he is act- ing under an order of the court. It therefore becomes im- portant for him to know to whom legacies are to be paid.^ It is not in every case suflScient to pay the legacy to the per- son described as legatee, for he may be under some disability. Thus if the legatee is an infant, the legacy cannot be paid to him, nor to his father, or to any relative, without the sanction of a court of equity.* The proper person to whom such pay- ment is to be made in the case of an infant is the guardian duly appointed; and the same is true in the case of other persons under guardianship, such as non compotes, spend- thrifts, and the like ; ^ unless the legacy is expressly made to some one in trust for the child, or to hold for the child, or for some other trust, in which case the legacy may be paid to the trustee.^ It should also be noticed that a guardian or trustee appointed in one State is not entitled to receive the payment of a legacy in another, where the estate is being administered ; but there should be a guardian duly appointed and giving 1 Pub. Sts. c. 136, § 24. " Pub. Sts. c. 136, §§ 24, 25. ' Newcomb v. Williams, 9 Met. 535. * Dagley v. Tolferry, 1 P. Wms. 285; McKnight v. Walsh, 23 N. J. Eq. 136. 5 Newcomb v. Williams, 9 Met. 535; Miles v. Boyden, 3 Pick. 213;. Kent V. Dunham, 106 Mass. 586 ; Sparhawk ». Buell, 9 Vt. 41 ; Genet v. Tallmadge, 1 Johns. Ch. 3. « 1 Koper, Leg. 771, 3d ed.; Lowell's App., 22 Pick. 215. PAYMENT OP LEGACIES. 297 proper security in the latter State.^ It is, however, provided by statute in Massachusetts that when all living parties inter- ested as beneficiaries in a trust live out of the State, the pro- bate court may authorize an executor or administrator to pay over the trust fund to a trustee appointed by a proper court in another State, if all parties interested agree to this, minors and contingent interests being represented by guardians ad litem or otherwise.^ § 498. Legacy to Married Woman, to 'whom payable. — At common law, in the absence of contrary statutory provision, a legacy to a married woman is to be paid to her husband, if he is alive when the legacy is paid, or if he is dead, to his execu- tors or administrators if he had during his life reduced it to possession by getting judgment for it, or in other ways ; but if he has died without reducing it to possession, it should be paid to the wife or her representatives, as her right to it in such case revives.^ The husband may bring suit for it in his own and his wife's name, and a judgment and payment to him make the legacy his property.* A legacy to the wife may be attached or trusteed by the husband's creditors before pay- ment ; ^ but the attachment will not defeat the wife's right of survivorship if the husband dies without reducing the legacy to possession, and therefore it should in such case be paid to her.^ Even if the wife has been divorced a mensa et thoro, the husband alone is entitled to the legacy.' Equity, however, will compel the husband to make a settlement upon the wife before 1 Morrell v. Dickey, IJohns. Ch. 153; McLoskeyr. Keid,4Bradf. 334. 2 Pub. Sts. c. 144, §§ 17, 18. ' Palmer B. Trevor, 1 Vern. 261; Toller, 320; Alexander v. Crittenden, 4 Allen, 342; Hayward v. Hayward, 20 Pick. 517. * Alexander v. Crittenden, 4 Allen, 342. 6 lb.; Holbrook v. Waters, 19 Pick. 354; Wheeler v. Bowen, 20 Pick. 563. 8 Strong V. Smith, 1 Met. 476; infra, § 501. ' Stephens i>. Totty, Ore. Eliz. 908; Chamberlain v. Hewson, 1 Salk. 115. 298 LAW OP EXECUTORS AiND AEMINISTEATOES. it will compel or allow the payroeat^f the legacy to the liu&- •band.i The amount to be settled on the wife varies aecording to the circumstances of the case, even .amounting to the whole legacy in proper cases, — as where she ias been deserted by jbhe husband, or he is unable to. maintain her, and the Jike.^ This right in equity to enforce a settlement in favor of the wife before payment of the legacy, may be lost by the miscon- duct of the wife, — for example, where she is living in adultery apart from her husband ; ^ or she may waive it, and expressly consent to her husband receiving the legacy.* But it is su- perior to the rights of her husband's creditors, whether they claim by attachment or by voluntary assignment, or by invol- untary transfer, as by operation of the bankruptcy lawa,^ ex- cept that, in Massachusetts, at law an attachment is a valid lien on the legacy during the husband's life, and payment of the legacy to the attaching creditor may within that time be enforced at law without regard to any provision for the wife.® § 499. Payment of Legacy to Married 'VSToman. — This right to a setflement before payment of the legacy is personal to her, and does not survive to her children or go to her repre- sentatives and assignees,^ unless a decree has already been entered in favor of the wife, in which case the children can enforce it.^ It is of course always possible for the executor 1 Browne v. Elton, 3 P. Wras. 202 ; Lady Elibank v. Montolieu, 5 Ves. .742, in note ; Davis v. Newton, 6 Met. 543. 2 Seott V. Spashett, 3 McN. & G. 599; Dunkley v. Dunkley, 2 DeG. M. & G. 390; Davis v. Newton, 6 Met. 544. ' Carr v. Eastabrooke, 4 Ves. 146. < Willats V. Cay, 2 Atk. 67; Milner v. Colmer., 2 P. Wms. 641. 5 Davis V. Newton, 6 Met. 543, 544; Dunkley ». Dunkley, 2 DeG. M. & G. 890; Haviland v. Bloom, 6 Jphng. Oh. 178; Kenny w. Udell, 5 Johns. Ch. 464. ' Strong V. Smith, 1 Met. 476 ; Davis v. Newton, supra ; supra, p. 297, note 5. ' "Winch V. Brutton, 14 Sim. 379; Soriven v. Tapley, Ambl. 509; Mur- ray B. Lord Elibank, 10 Ves. 84; 1 Jloper, Husb. & Wife, 264, 2d ed. ' Rowe V. Jackson, 2. Dick. 604; Fenner v. Taylor, 1 Sim. 171; Groves ». Perkins, 6 Sim. 584 ; De la Garde v. Lempriere, 6 Beav. 343, 345. PAYMENT OF LEGACIES. 299 to defeat this equitable right of the wife by paying over the legacy to the husband, in which case of course the opportunity for the interference of a court of equity is gone ; but after the co.mmencement of a suit to establish this iright the executor no longer has the right to niake such a payjjient ; ^ and the executor may always refuse to make such payment until the husband has made the proper settlement.*' The effect of the various married women's statutes, giving them the legal right to their separate property, Is probably to vest legacies in them free from the control of their husbands, and the wife's receipt for or release of the legacy is valid,^ just as, in equity,, when a legacy is given to the sole and separate use of the wife, she alone can give a good discharge of it.* But such statutes cannot operate upon any vested interest of a husband in a legacy to his wife existing at the time of the passage of the statute.^ § 500. Security on Payment of Legacy to Life-tenant. — When a legacy is given generally to one for life, with a limi- tation over to others upon his death, the court in Massachu- setts has held that the legacy should be paid to the legatee without requiring any security from him to secure the estate from waste in his hands, unless there appears to be danger of his wasting, secreting, or removing the property.® And gen- erally, if there is a legacy for life and remainder, the court will order the life-tenant to give bond to secure the preserva- tion of the estate intact for the remainder-man^ only in cases iwhere there is shown to be real danger of the waste or secret- ing of the estate.'^ Where a legatee has "been abroad, and not heard of for a .long time, the courts have sometimes allowed 1 Murray v. Elibarik, 10 Ves. 90; Doswell v. Earle, 12 Vea. 473. 2 Swan, in re, 2 Hemm. & M. 34. ' Mass. Pub. Sta. c. 147, § 1. * Prichard ». Ames, 1 Turn. & R. 222. 6 Dunn V. Sargent, 101 Mass. 336. Taggard v. Piper, 118 Mass. 315. ' Sampson v. Randall, 72 Me. 112; Sohmaunz v. Goss, 132 Mass. 146; Howard v. Howard, 16 N. J. Eq. 486. 300 LAW OP EXECUTORS AND ADMINISTEATORS. payment to the persons to ■whom the legacy goes on the death of the legatee, upon their giving security to refund in case of his returning.^ § 501. Liens on Legacy ; Trustee Process ; Bankrupt Lega- tee ; Death of Legatee. — When a legacy has been charged by the legatee, and the executor has been notified thereof, no further payments can be made thereon.^ If the legatee has died, the legacy is payable to his administrator or executor.^ A legacy is liable to attachment or to trustee or garnishee process at any time after the interest in it has vested in the legatee, and before payment to the legatee. Therefore, when an executor has been summoned as trustee of a legatee, or the legacy has been attached, he is obliged to retain the legacy until the judgment in the case allows him to dispose of it, either by payment to the legatee or to the plaintiff in the case, as the judgment may be.* In Massachusetts, it has been held that a specific legacy, for example, of shares in stock, standing in the name of the testator, is attachable by trustee process.* This probably would not be so held in other States after the assent of the executor, where the effect of such assent is to vest the title to the specific article bequeathed in the legatee.® When a legacy is left to one who has become bankrupt or insolvent, it goes to the assignee, unless the bank- rupt has received his discharge or certificate before the death of the testator ; in which case the legacy is payable to him.^ § 502. Interest on Legacy ; Specific Legacy. — As to specific legacies, the increase or product of them from the time of the testator's death belongs to the legatee, because the legacy ^ Norris v. Norris, Finch, 419; Bailey v. Hammond, 7 Ves. 590; Dow- ley V. Winfleld, 14 Sim. 277; Cuthbert v. Farrier, 2 PliiU. C. C. 199. 2 Stephens v. Venables, 30 Beav. 625. « Richardson v. Morey, 18 Pick. 192. * Strong V. Bass, 35 Pa. St. 333; Capen v. Duggan, 136 Mass. 501; Vantine v. Morse, 104 Mass. 276. Cf. supra, § 498. 6 Vantine v. Morse, 104 Mass. 276. « See supra, § 493. ' Ansell, Exp., 19 Ves. 208. PAYMENT OF LEGACIES, 301 vests in him then.^ So where there is a specific bequest of stock, the dividends belong to the legatee, from the death of the testator ; ^ and the increase of cattle specifically be- queathed belongs to the legatee.^ § 503. Interest on General Legacies. — General legacies carry interest from the time when they are payable, which depends largely upon the terms of the legacy itself. If no time for the payment of the legacy is fixed, there is usually a year given by statute or by the courts for the collection and arrangement of the estate previous to making payments ; and interest accordingly does not begin to run till that time, that is, one year from the death of the testator, at which time the legacies are due.* But although interest on a legacy is not allowed till the end of a year from the testator's death, yet, when the income of a fund is given, the income begins immediately upon the death of the testator, and interest upon the income, if it is not paid at the end of the year from the testator's death, when it is due.^ The fact that there are not sufficient assets to allow the legacy to be paid when it is due does not prevent the accumulation of interest thereon until it is paid.^ § 504. Legacy to a Child, Interest on. — When a legacy is 1 Sleeoh v. Thorington, 2 Ves. 563; Beal v. Grafton, 5 Ga. 301; Sullivan v. Winthrop, 1 Sumn. 12 ; Evans v. luglehart, 6 Gill & J. 171 ; Jones V. Ward, 10 Yerg. 160. 2 Barrington v. Tristram, 6 Ves. 345. » Wentw. Off. Ex., 445. * Wood V. Penoyre, 13 Ves. 333, 334; Rotch v. Emerson, 105 Mass. 431; Davis v. Swan, 4 Mass. 208; Martin v. Martin, 6 Watts, 67; Hus- ton's App., 9 Watts, 473, 475, 477; Derby v. Derby, 4 R. I. 414; Budd V. Garrison, 45 Md. 418; Sparks v. Weedon, 21 Md. 156; Hoagland v. Schenck, 1 Harr. 370; Halsted v. Meeker, 18 N. J. Eq. 136; Bradner V. Faulkner, 12 N. Y. 474; Wheeler v. Ruthven, 74 N. Y. 431; Cooke v. Meeker, 36 N. Y. 18; Loring v. Woodward, 41 N. H. 391, 393. Cf. supra, §§ 495, 496. * Ayer v. Ayer, 128 Mass. 577; Loveringw. Minot, 9 Cush. 157; Amory V. Minot, 2 Cush. 380; Gushing v. Burrell, 137 Mass. 21; Weld v. Putnam, 70 Me. 212; Cooke v. Meeker, 36 N. Y. 18. » Pearson v. Pearson, 1 Sch. & Lef. 10; Kent v. Dunham, 106 Mass. 586. S02 LAW OF EXECUTORS AND ADMINISTRATOES. given by a parent to a child, or for the support of a child, and no other provision is; made for the maintenance of the child, it is presumed that the testator intends the child to have the benefit of the legacy from the death of the testator, and inter- est therefore begins to run from the death of the testator, al- though the legacy may not be payable till the legatee reaches his majority.^ But a natural child,^ or a niece, or a goddaugh- ter cannot claim: interest from the date of the testator's death i^ although in one case a natural daughter was allowed to re- ceive from' the father's death maintenance expressly given to her.* As to a grandchild, it has been held that he cannot ; ^ but the contrary has been held in Pennsylvania, when the father was dead, the grandfather then being in loeo parentis.^ Nor can the child, if other provision is made for its mainte- nance in- the willJ And it is only children under age who may claim this exception to the general rule.^ And in case of a daughter, if she is married and her husband is able to support her, as he is presumed to be, in absence of proof to the contrary, the daughter is only entitled to interest from the end of the year.^ 1 King w. Talbot, 40 N. Y. 76; Cooke ». Meeker, 36 N. Y. 22; Brown V. Knapp, 79 N. Y. 140; MagoflBn v. Patten, 4 Rawle, 113, 119; Loring v. Woodward', 41 N. H. 393; Sullivan v. WinthrOp, 1 Sumn. 14; Amory v. Minot, 2 Cush. 384; Hennion v. Jacobus, 27 N. J. Bq. 28 ; Fowler v. Colt, 22 N. J. Eq. 49, 50; Howard v. Francis, 30 N. J. Eq. 444; Budd V. Garrison, 45 Md. 418. " Lowndes v. Lowndfes, 15 Ves. 301 ; Sullivan v. Winthrop, 1 Sumn. 14. 8 Sullivan v. Winthrop, 1 Sumn. 14; Page's App., 71 Pa. St. 402. * Newman v. Bateson, 3 Swanst. 689. « Lupton V. Lupton, 2 Johns. Ch. 614, 628; Huston's Case, 9 Watts* 476; Leech's App., 44 Pa. St. 140; Kerr ». Bosler, 62 Pa. St 183, 188; Howard v. Francis, 30 N. J. Eq. 444. « Bowman's App., 34 Pa*. St. 19, 23. ' Williamson v. Williamson, 6 Paige, 299; Sullivan v. Winthrop, 1 Sumn. 13, 14: ' Sullivan v. Winthrop, 1 Siimn. 1, 13, 14, 15; Hennion v. Jacobus, 27 N. J. Eq. 28 ; Howard v. Francis,- 30 N. J. Eq. 444. « Hennion v. Jaoobusj 27 N. J.. Eq. 28. PAtitfENT' OF LEGACIES. 303 § 505. Ijiterest on Legacy to 'Widow in place of Dower. — The widow may claim interest from the date of testator's death when her legacy takes the place" of dower, and there is no other provision made for her in the will ; ^ but not otherwise generally,? nor when the legacy, although given in lieu of dower, is itself in the nature of interest or income, as when a certain sum is to be paid each day.^ § 506. Hate of Interest on Legacy. — The rate of interest is generally the same as the legal rate of simple interest on debts, if there is any fixed ; for the interest is not usually a charge on the executor, but an accessory of the legacy ; * although a higher rate or compound interest is sometimes imposed by the court as a punishment for misconduct, or neglect of the executor in not investing the funds of the estate as directed by the testator, or for appropriating them to his own use.^ In Massachusetts the rule in such a case is to add each year's interest to the principal, and make that the principal for the next year, or, as it is called, compute the interest with annual rests.^ The subject of rate of interest is more fully examined in treating of the payment of distributive shares of intestate estates, to which portion of the work the reader is referred.^ § 507. Money in w^hich Legacies should be paid. — The money in which pecuniary legacies should be paid, if there is 1 Pollard V. Pollard, 1 Allen, 490; Pollock v. Learned, 102 Mass. 49; Towle V. Swazey, 106 Mass. 100. Contra, in New Jersey, Howard v. Francis, 30 N. J. Eq. 448; Acquackanonk Church v. Ackerman, 1 N. J. Eq. 40, 43. 2 Stent V. Robinson, 12 Ves. 461. 8 Kent V. Dunham, 106 Mass. 586. * Kent V. Dunham, 106 Mass. 586; Salisbury v. Colt, 27 N. J. Eq. 492; Miller v. Congdon, 14 Gray, 118. 6 Craokelt v. Bethune, 1 Jac. & W. 586 ; Raphael v. Boehm, 11 Ves. 22; Dornford v. Dornford, 12 Ves. 127; Eliott v. Sparrell, 114 Mass. 404; Fowler v. Colt, 22 N. J. Eq. 47. * Miller v. Congdon, 14 Gray, 118; Eliott v. Sparrell, supra, 1 Infra, §§ 520, 523. 304 LAW OP EXECUT0B8 AND ADMINI8TEAT0RS. no direction in the will, is that current in the country where the testator was domiciled at the time of making the will, and not the currency of the place where the legatee re- sides.^ If the testator directs payment in foreign coin, that coin or its equivalent in the place where the estate is being settled and the testator resided should be used.^ 1 Saunders v. Drake, 2 Atk. 466 ; Lansdowne ». Lansdowne, 2 Bligh, 92 1 Holmes v. Holmes, 1 Russ. & M. 660. 2 Coekerell v. Barber, 16 Ves. 461; Bowditch v. Soltyk, 99 Mass. 136, 140. See also infra, §§ 520, 523. DISTRIBUTION OF INTESTATE ESTATES. 305 CHAPTER XVIII. DISTBIBUTION OP INTESTATE ESTATES. § 508. Statute of Distributions, Massa- § S19. Escheat ; half Blood. chusetts. 520. Paternal and Maternal Kindred. 609. Husband's Right in Wife'a Es- 521. Illegitimate Children, tate. 522. Adopted Children. 510. Same subject. 523. Posthumous Children. 511. "Widow's share in Husband's Es- 524. Time of Distribution ; Effect of tate. Decree ; Refunding Bond. 512. Right of Representation. 525. Set-off of Debts> 513. Distributive Rights of Next of 526. Advancements. Kin. 527. Nature of Right to Distributive 514. Children, Distributive Rights o£ Share ; Paitial Intestacy ; Dis- 515. Parents, Distributive Rights of. tribution governed by Law of 516. Brothers and Sisters, Distribu- Domioil of Intestate. tive Rights of. 528. Transfers of Right to Share. 517. Next of Kin in general, Distrib- 529. Actions for Distributive Share. utive Rights of. 530. Investment before Distribution. 518. Right of Representation. § 508. statute of Cistribntions, Massachusetts. — After the payment of debts, the duty of the administrator ia to distrib- ute the estate among those entitled to it by law. The various statutes of distribution of the different States have sufficient similarity to allow a digested analysis of the more important and typical provisions to be made advantageously, although they are too lengthy to allow a complete transcription. The stat- ute of Massachusetts, however, is substantially that the personal estate shall be distributed, after the allowance to the widow, the payment of the debts of the deceased, and the charges of his funeral and the costs of administration, as follows : ^ If the intestate was a married woman and left issue, her hus- band takes one half of the residue, and the issue one half, in the manner prescribed for the descent of real estate to 1 Pub. Sts. 0.135,, §3. 20 306 LAW OF EXECUTORS AND ADMINISTRATORS. descendants.^ If the intestate was a married woman, and left no issue, it seems that her husband takes the whole residue.^ If the intestate leaves a widow and issue, the widow takes one third of the residue.^ In computing such third no ad- vancements to children shall be taken into account. The widow is entitled to one third of the estate as it stands at the death of the intestate, without reckoning in any advance- ments.* After deducting the one-third share from the widow, the residue goes to the issue in the manner prescribed for the descent of real property.^ If the intestate leaves a widow and no issue, the widow is entitled to the whole of the residue to the amount of five thousand dollars, and to one half the excess over ten thousand dollars, the remaining portions going to the next of kin as provided by chapter 125, for the descent of real property.® If the intestate leaves a widow and no kindred, the widow takes the whole residue.'^ If the intestate leaves no widow, or in case of a woman, no husband, the residue goes as provided for the descent of real property,^ which is as follows : First, in equal shares to his children and to the issue of any deceased child by right of representation, and if there is no surviving child of the intestate, then to all his other lineal descendants. If all such descendants are in the same degree of kindred to the intestate they shall share the estate equally ; otherwise they shall take according to the right of representation. If the intestate leaves no issue, then in equal shares to his father and mother. If he leaves no issue or mother, then to his father. If he leaves no issue or father, then to his mother. If he leaves no issue and no father or mother, then to his brothers and sisters and to the issue of any deceased brother or sister by right of representa- 1 Sts. 1882, 0. 141 ; Pub. Sts. c. 125, § 1, ol. 1. See infra, § 508, ad finem. 2 Pub. Sts. 0. 135, § 3, ol. 3. » Pub. Sts. c. 135, § 3, cl. 4. 4 Pub. Sts. c. 128, § 6. 6 Pub. Sts. c. 125. « Pub. Sts. c. 135, § 3, cl. 5. ' Sts. 1885, o 276. 8 Pub. Sts. c. 135, § 3, cl. 2. DISTRIBUTION OP INTESTATE ESTATES. 307 tion ; and if there is no surviving brother or sister of the in- testate, then to all the issue of his deceased brothers and sisters. If all such issue are in the same degree of kindred to the intestate they shall share the estate equally, otherwise they shall take according to the right of representation. If the intestate leaves no issue, and no father, mother, brother, or sister, and no issue of any deceased brother or sister, then to his next of kin in equal degree, except that when there are two or more collateral kindred in equal degree, but claiming through different ancestors, those who claim through the near- est ancestor shall be preferred to those claiming through an ancestor who is more remote. If the intestate leaves no kin- dred and no widow or husband, his or her estate escheats to the Commonwealth.^ It has already been seen that in ascertaining the next of kin, the degrees of kindred shall be computed, in most of the United States, according to the civil law.^ The word " issue " in the Massachusetts statute is by another statute interpreted to include " all lawful lineal descendants of the ancestor." ^ § 509. Husband's Right in his Wife's Estate. — The rights of the surviving husband or wife in the other's estate, so far as they are not regulated by statute, have already been some- what considered in inquiring as to the grant of the right of administration.* A more extended consideration of their re- spective rights as distributees under the statutes of the various States may be proper at this place. It may be re- marked as a preliminary to this consideration that the hus- band's right to the personal property of his wife may be lost by her making a will by which it is bequeathed to some other person. In Massachusetts this right of the wife is limited to 1 Pub. Sts. c. 125, § 1; 0. 135, § 3, cl. 6. 2 Mass. Tub. Sts. c. 125, § 2. See Appendix of Statutes, and supra, §158. 8 Mass. Pub. Sts. c. 3, § 3, cl. 11. * Supra, Chapter V., §§ 122, 123, et seq. 308 LAW OP EXECUTORS AND ADMINISTRATORS. one half of her personal estate, the other half of which neces- sarily goes to the husband.^ If she makes a will leaving more than this portion away from him, her estate is considered in- testate as to the excess over the portion which she might lawfully leave away from him.^ A further limitation of the right of the husband is provided by statute in Massachusetts, which enacts that a married woman living apart from her hus- band for cause, or deserted by him, when these facts have been established by a proper decree of court, under a statute of that State, may make a valid will as if sole, and without her hus- band's assent may dispose of all her estate,* § 510. Share of Husband in Personal Estate of Deceased ■Wife. — The share of a husband in the personal estate of his deceased wife depends largely upon the statute of the State in which the wife last dwelt. At common law the husband was entitled to all the personal property of the wife by survivor- ship;* and this title is not divested by the statutes which allow married women to hold their property separately from their husbands and as if sole, unless the statute expressly so states ; but, of course, this right is, as will now be shown, changed by any express provision of a statute of distribu- tions.^ This right has been materially changed by statute of distributions in many States. Thus in Massachusetts, as ha^ been already seen, he takes the whole of his wife's property only when she leaves no issue. If she leaves issue, they take one half and the husband the other half.^ In Maine he takes only one third if there are issue, and the whole only when there are no kindred; if there are kindred, one half.'' In 1 Hardy v. Smith, 136 Mass. 328; Mass. Pub. Sts. c. 147, | 6. » Marshall v. Berry, 13 Allen, 45, 46. Cf. infra. § 527. » Sts. 1884, c. 801. 4. * Albee v. Carpenter, 12 Cush. 386; supra, §§ 122, OT4-388. 5 Barnes v. Underwood, 47 N. Y. 351 ; Ransom v. Nicholls, 22 N. T. 110. Mass. Pub. Sts. c. 135, § 3, cl. 3; Sts. 1882, c. 141. ' Me. Rev. Sts. c. 75, § 9. DISTRIBUTION OP INTESTATE ESTATES. 309 Connecticut he takes, if the marriage took place after April, 1877, one third when there are issue, and one half when there are no issue ; but no more in any event.^ In Vermont, if there are kindred and no issue he takes all up to two thou- sand dollars, and one half of the remainder ; if no kindred, the whole ; if there are issue, he takes nothing.^ In New York the surviving husband takes one third if there are chil- dren or their representatives surviving the deceased ; if none, it seems that his common-law rights prevail, in the absence of any statute on the subject, and he takes the whole by sur- vivorship.^ In New Hampshire the husband takes one third, if there is a child or any issue of a child ; if there is none, he takes one half.* In Rhode Island he takes the whole of her property as at common law.^ And by statute, if there are no kindred of the wife, if he is dead, his kindred take the prop- erty as if it were his.* In New Jersey the rights of the hus- band at common law are preserved by the statute, and he takes the whol-e estate.^ In Ohio it seems that the common- law rights of the husband to his wife's property are modified by statute, and he takes her personal property only in case there are no children or their issue, in which case he takes the whole.^ In Illinois the husband takes one third if there are children or their issue ; if there are none, he takes the whole.^ In Indiana the husband takes the same share of his wife's separate personal estate that he does in her real estate.^" If there are no children, but a parent or parents, the husband takes three fourths, and the surviving parent or parents one 1 Conn. Gen. Sts. § 623. ^ Vt. Rev. Laws, § 2230. 8 3 N. Y. Rev. Sts. p. 2803, § 75; p. 2305, § 79; Ransom v. NichoUs, 22 N. Y. 110; Barnes v. Underwood, 47 N. Y. 351. * N. H. Gen. Laws, c. 202, § 15. 6 R. L Pub. Sts. c. 166, § 14. « R. I. Pub. Sts. c. 187, § 4. ' Rev., Orphans' Court, § 148. 8 Rev. Sts. §§ 4159, 4163; Steel v. Kurtz, 28 Ohio St. 197; Curry v. Fulkinson, 14 Ohio, 100. in. Ann. Sts. c. 39, If 1. " Rev. Sts. § 2488. 310 LAW OP EXECUTORS AND ADMINISTRATORS. fourth.^ If there is neither child nor parent, the husband takes the whole.^ In Pennsylvania a distinction is made be- tween the estate which a woman holds as her separate estate and that which is governed by the rules of the common law. The husband takes the whole of the latter, while of the former he takes the whole only when there are no children ; if there is a child or children, the husband divides with the children, share and share alike.* In Michigan the husband takes one third, if there are children or issue, except that if there is only one child or the issue of one child, the husband takes one half ; if there is no issue, he takes one half ; and if there is no issue, father, mother, brother, sister, or their issue, he takes the whole.* In Iowa the husband is post- poned to the issue, but if there is no issue he takes one half, the parents or, if they are dead, their heirs taking thfi other ; and if there are no parents or their heirs, the husband takes the whole ; or if he is dead his heirs take the whole, sharing one half with the heirs of any former husband.^ In California the husband takes one third if there is more than one child, or one child and the issue of another, or more ; if there is only one child or its lavs^ful issue, he takes one half ; and if no issue, he takes one half, the other half going to the father and mother, or the brothers and sisters ; if there is neither issue, father, mother, brother, or sister, he takes the whole.® In Maryland the husband takes the whole personal estate ab- solutely if his deceased wife left no children ; if she left chil- dren he takes a life estate ; ^ and this estate of the husband in his wife's property includes choses in action as well as in pos- session ; and even after he has reduced the choses in action to possession he has only a life estate in them if there are chil- 1 Rev. Sts. § 2489. a Rev. Sts. § 2490. 8 Bright. Purd. Dig., Intestates, §§ 4, 5. * Mich. Ann. Sts. § 5847. 6 Iowa Rev. Code, §§ 2440, 2455-2458. « 3 Deer. Ann. Sts. § 1386. ' Md. Rev. Code, art. 51, § 20. DISTRIBUTION OP INTESTATE ESTATES. 311 dren.^ In Virginia the husband takes the whole personal estate without regard to next of kin ; but if there are none, and he is dead, his kindred take the estate as if he had sur- vived the wife.2 In Kansas the husband takes the whole estate if there is no issue ; if there is any issue, it is preferred to the husband.^ In South Carolina the husband takes one third if there are' issue ; if none, one half, except in cases where there is no issue, father, mother, brother, sister, or their descendants or lineal ancestor, in which case he takes two thirds ; and if there are no kindred, he takes the whole.* § 511. Right of Widow in Personal Estate of Deceased Hus- band. — The right of the widow in the personal estate of her deceased intestate husband is also regulated by statute in most States. In Massachusetts, as has been already seen, if there are issue the widow takes one third of the personal estate as distributee, this third to be reckoned as the estate stands at the death of the intestate, not reckoning in ad- vancements made to children in the life of the intestate.^ If there is no issue but there are kindred, the widow takes property up to five thousand dollars in value, and one half the excess over ten thousand dollars ; and if no kindred, she takes the whole.^ In Maine a similar provision exists, except that in case of kindred and no issue, the widow takes one half the property.'^ In Connecticut she takes one third if there are issue ; one half if there are none.** In Vermont, if there are kindred and no issue, she takes all up to two thou- sand dollars and one half of the remainder ; if there are no kindred, she takes the whole ; if there are issue, she takes nothing.^ In New York tlie widow takes one third if there are 1 Engel V. State, 65 Md. 546. « Va. Code, §§ 2548, 2557. 8 Kans. Comp. Laws, §§ 2258, 2266. * S. C. Gen. Sts. § 1845. « Mass. Pub. Sts. c. 135, § 3, cl. 3 ; c. 128, § 6. « Mass. Pub. Sts. c. 135, § 3, cl. 5; Sts. 1885, c. 276. ' Me. Rev. Sts. c. 75, § 9. 8 Conn. Gen. Sts. § 623. » Vt. Eev. Laws. § 2230. 312 LAW OP EXECtrroBS and ADMINISTEATORS. children, or their representatives ; if none, she takes at least one half the estate, — with this addition, that if there is no descendant or parent, but there is a brother or sister, nephew or niece, she takes beside her half as much of the rest of the estate (all if necessary) as will make two thousand dollars ; if there is no parent or descendant, brother or sister, nephew or niece, she takes the whole personal estate.^ In New Hamp- shire the widow takes one third when there is a child or the issue of a child, and one half when there is none.^ In Rhode Island she takes one third if* there is issue, and one half when there is none ;3 and if there are no kindred^she takes the whole ; and if she is dead, her kindred take as if she had survived her husband and thus become entitled to the estate.* In New Jer- sey the 'widow takes one third of the personal estate if there are children or their issue, and if there are none, one half .^ In Ohio the widow is apparently entitled, if there is a surviving child, to one half of the personal estate up to four hundred dol- lars, and one third of the residue ; if there is no surviving child or descendant, she takes the whole.^ In Illinois tiie widow takes one third if there are children or their descendants ; if none, she takes the wholeJ In Indiana, if there are one or two children, the widow takes equally with the child or chil- dren ; if there are more than two children, the same method of division holds, except that the widow's share shall not be reduced below one third of the whole estate.* If there is no child, the widow takes three fourths, and the parent or parents one fourth ; ^ if there is no parent or child, the widow takes the whole.^" In Pennsylvania the -widow takes one third if there is issue ; if none, but there are other kindred, she takes 1 3 N. Y. Rev. Sts. p. 2303, § 75. « N. H. Gen. Laws, c. 202, §§ 7, 8. » E. I. Pub. Sts. c. 187, § 9. * R. I. Pub. Sts. c. 187, § 4. « Rev., Orphans' Court, § 147. 8 Rev. Sts. §§ 4159, 4163, 6194. ' 111. Ann. Sts. c. 39, If 1. 8 Ind. Rev. Sts. § 2487. « Lid. .Rev. Sts. § 2489. i" Ind. Rev. Sts. § 2490. DISTRIBUTION OP INTESTATE ESTATES. 313 one half ; if no kindred, she takes the whole.^ In Michigan the widow takes one third if there are issue, except that she takes one lialf if there is only one child or the issue of one child ; if no issue, she takes all up to one thousand dollars, and if the estate exceeds that sum, she takes one half, unless there is no issue, father, mother, brother, sister, or their issue, in which case she takes the whole.^ In Iowa the rights of the widow are the same as those of a surviving husband, q. v.;^ and the same may be said of California. In Maryland the widow takes one third if there is a child or descendants of a child ; one half if there is no issue, but there is a father, mother, brother, or sister, or child of a de- ceased brother or sister ; and if none of these, the whole.* In Virginia she takes one third if there is issue by her. If no issue by her, she takes all the property which was hers before marriage, and remains in kind, also one third of the rest if there is issue by a former marriage ; if none, one half ; if there are no kindred, the whole, and if she is dead in such case her kindred take as if she had survived the deceased.^ In Kansas she takes nothing unless there is no issue, in which case she takes the whole.® In South Carolina the widow takes the same share as the surviving husband, which has been already stated.'^ If the widow, in pursuance of a right which is allowed her by statute in some States, elects not to take the provision made for her by her husband's will, she takes the same share in his estate which she would have taken if he had died intestate ; ^ but the rest of the estate is distributed according to the will, only striking out the clause in favor of the widow.^ The 1 Bright. Purd. Big., Intest., §§ 2, 3, 28. 2 Mich. Ann. Sts. § 5847. » Supra, § 510. * Md. Rev. Code, art. 48, §§ 2-4, 6 Va. Code, §§ 2548, 2557. « Kans. Comp. Laws, § 2258. ' Supra, § 510. « Anderson's App., 36 Pa. St. 476; GaUagher's Est., 76 Pa. St. 296. » Heineman's App., 92 Pa. St. 95. 314 LAW OP EXECUTORS AND ADMINISTRATORS. widow is not barred in the probate court of her right to her distributive share of her deceased husband's estate by an antenuptial agreement, whereby she agreed that the provision made for her in the settlement should bar every claim of hers against his estate, but this agreement will be enforced in equity and will bar her right.^ jLn acceptance by her of a provision of the will in place of lier dower does not affect her right to a distributive share in case of partial intestacy .^ She takes her distributive share as well in cases of partial as of total intestacy ; for example, if a legacy has lapsed and does not fall into the residue.^ § 512. Right of Representation. — As a preliminary to stating the rights of distributees other than the surviving husband or wife, some notice should be taken of the right of representation. It is plain that, at common law, where the personal property went to the next of kin in equal de- gree, there would be no rights for the issue of deceased next of kin. For instance, if there were three children alive and the children of a fourth child who died before the intes- tate, the three living children alone would take the property. To remedy this injustice, in many States statutes exist which confer a right upon various relatives to represent their de- ceased parents or ancestors and take their share of the estate. This mode of transmission of property is called transmission by right of representation ; and this right is defined by statute in Massachusetts to arise when the descendants of a deceased heir take the same right or share in the estate of another per- son that their parent would have taken if living. This right is not generally conferred upon all relatives indiscriminately ; but, as will be seen later, it is generally given to the direct issue of children throughout the whole line of descent, and is 1 SuUings V. Richmond, 5 Allen, 192. 2 Hand v. Marcy, 28 N. J. Eq. 65; Darrah v. McNair, 1 Ashm. 236. 8 Skellenger v. Skellenger, 32 N. J. Eq. 662; Reed's Est., 82 Pa. St. 430. Cf. infra, § 527. DISTRIBUTION OF INTESTATE ESTATES. 315 also generally given to the children of deceased brothers and sisters, and sometimes to all their descendants, and rarely goes beyond this limit ; although occasionally it is conferred upon the descendants of lineal ancestors.^ § 613. Distributive Rights of Next of Kin. — The distribu- tion of intestate estates among the next of kin is regulated with great detail in most of the United States. The various degrees of relationship entitle the relatives to various shares in the estate. There is, however, sufficient similarity in the statutes to confer an order of precedence among relatives ; and it may be said that generally the following classes take the estate in the order in which they are named : Children and the issue of children, parents, sisters and brothers and their issue, next of kin in further degrees. § 514. Children, Distributive Rights of. — In most States the children take what remains of the property after deducting the share of the surviving husband or wife, if any, in the man- ner above described ; if there is no surviving husband or wife, they take the whole, and are prior in right to any other rela- tive.2 In a few States, however, children have priority even over the surviving husband or wife. Thus, in Vermont, chil- dren and their issue are prior to a surviving husband or wife, and take the whole estate, to the exclusion of such sur- vivors ; 2 and the same is true in Iowa,* and in Kansas ; ^ and they are also prior to husband or wife surviving, or other person in Ohio (with the exception of a provision for the 1 Infra, §§ 514, 516-518. 3 Mass. Pub. Sts. c. 135, § 3, cl. 4; Me. Kev. Sts. c. 75, § 9; Conn. Gen. Sts. § 630 ; 3 N. Y. Rev. Sts. p. 2303, § 75 ; N. H. Gen. Laws, c. 203, §§ 1, 6; R. I. Pub. Sts. c. 187, § 1; N. J. Rev., Orphans' Court, § 147; Ohio Rev. Sts. §§ 4159, 4163; 111. Ann. Sts. c. 39, IT 1; Ind. Rev. Sts. §§ 2467, 2487, 2488; Pa. Bright. Purd. Dig., Intest., § 8; Mich. Ann. Sts. § 5847; Cal. 3 Deer. Anri. Sts. § 1386; Md. Rev. Code, art. 48, §§ 5, 6, 7; Va. Code, § 2548; S. C.Gen. Sts. § 1845. « Vt. Rev. Laws, § 2230. * Iowa Rev. Code, §§ 2453, 2454. 6 Kans. Comp. Laws, §§ 2256, 2258, 2266. 316 LAW OP EXECUTORS AND ADMINISTRATORS. widow) .^ Along with the children the issue of any deceased child generally take their ancestor's share of the estate by the right of representation, to which reference has already been made ; and if there are no children, the issue of deceased children take in the same manner, — that is, if all are in equal degree all share alike ; if in different degrees, the estate is divided as if all of the nearest degree who ever existed and whose issue exist were then alive, the shares of deceased go- ing to their issue by right of representation.^ In Illinois only the issue of children and grandchildren have the right of representation.^ And in Kansas it is provided that the heirs of any deceased child shall inherit his share in the same manner as if the child had outlived his parent, which is presumed to be equivalent to inheritance by right of rep- resentation.* § 515. Parents, Distributive Rights of. — As a general rule, parents do not take any of the personal estate of the deceased, tinless there are no issue, nor surviving husband or wife. In such case they in some States take equal shares (if both are alive, and if only one, he or she taking the whole) .^ lu other States the personal property goes to the father alone, if he is alive.* But in Connecticut both parents are postponed to 1 Supra, §§ 510, 511. 2 Mass. Pub. Sts. c. 135, § 3, cl. 2; c. 125, § 1; Me. Rev. Sts. c. 75, § 1; Conn. Gen. Sts. § 630; Vt. Rev. Laws, § 2230; N. H. Gen. Laws, c. 203, § 1 ; R. I. Pub. Sts. c. 187, § 1; N. J. Rev., Orphans' Court, § 147; Ohio Rev. Sts. §§ 4159, 4163, 4165, 4166; Ind. Rev. Sts. §§ 2467, 2468; Pa. Bright. Purd. Dig., Intest., §§ 8-14; Mich. Ann. Sts. § 5847; Iowa Rev. Code, § 2454; Cal. 3 Deer. Ann. Sts. § 1386; Md. Rev. Code, art. 48, § 7; Va. Code, § 2548; S. C. Gen. Sts. § 1845. Cf. infra, § 518. 8 III. Ann. Sts. c. 39, 1 1. * Kans. Comp. Laws, § 2257. 6 Mass. Pub. Sts. c. 135, § 3, cl. 2; o. 125, § 1; Pa. Bright. Purd. Dig., Intest., § 15 (with survivorship to the other if not reduced to posses- sion) ; Frankenfield !'. Gruver, 7 Pa. St. 448; Kans. Comp. Laws, §§ 2258, 2259. " Me. Rev. Sts. c. 75, § 1; Vt. Rev. Laws, § 2230; N". H. Gen. Laws, c. 203, § 1; R. 1. Pub. Sts. c. 187, § 1 ; Md. Rev. Code, art. 48, § 8; Va. Code, § 2548. DISTRIBUTION 0^ INTESTATE ESTATES. 317 brothers and sisters of the wholfc blood,^ the latter taking the estate in preference to the parents, while brothers and sisters of the half blood take only when the parents are dead.^ In those States where the personal property goes to the father alone, if he is alive, it is generally the rule that,, if the father is dead, it goes to the mother and the brothers and sisters of the deceased and their issue by representation, all sharing with the mother equally ; and if there are none of these, the mother taking the whole.^ But in Maine the mother, although, obliged to share with brothers or sisters, takes to the exclusion of the issue of brothers and sisters, if none of the brothers or sisters are alive.* In New Jersey no special direction is, given as to the course of property after children and their issue, except that it shall go to the next of kin.^ In New York, however, the widow is obliged to share with either par- ent, or both if they are both alive, the widow taking one half, while the parents take the other half. If both parents are alive, each takes one half of this moiety ; if the father only is alive, he takes the moiety entire ; if the mother only is alive, she is obliged to share it equally with brothers or sisters or their representatives. If there is no widow, the father and mother take equal shares, if both are alive ; if the father only is alive, he takes the whole ; if the mother only is alive, she shares the whole with the brothers or sisters or their repre- sentatives ; if there are no brothers or sisters or their rep- resentatives, she takes the whole moiety or the whole estate, according as there is or is not a widow.® And in Michigan the widow or surviving husband shares with the father, who takes one half if he is alive ; if not, the mother, brothers, and 1 Conn. Gen. Sts. § 632. " Conn. Gen. Sts. § 632. 8 Me. Rev. Sts. c. 75, § 1; Vt. Rev. Laws, § 2230; N. H. Gen. Laws, c. 203, § 1 ; R. I. Pub. Sts. c. 187, § 1 ; Md. Rev. Code, art. 48, § 11; Va. Code, § 2548. < Me. Rev. Sts. c. 75, § 1. 6 Rev., Orphans' Court, § 147. 6 3 N. Y. Rev. Sts. pp. 2303, 2304, § 75. 318 LAW OP EXECUTORS AND ADMINISTRATORS. sisters and their descendants take this half. If there is no surviving husband or wife and no issue, the estate goes to the father, and if he is dead, to the mother, brothers, and sisters and their descendants equally ; but if there are no brothers or sis- ters, the mother takes the whole to the exclusion of descendants of brothers and sisters.^ In Iowa the parents share with the sur- viving husband or wife ; if there is none, they or the survivor take the whole, and if both are dead, their heirs take.^ In Ohio both the parents are postponed to the brothers and sis- ters of the whole or half blood and their representatives, and only in event of there not being any such does the estate go to the father ; or if he is dead, to the mother.^ In Illinois the parents are in a class with brothers and sisters and their descendants, all sharing equally ; and if one of the parents is dead, the other receives a double portion.* In Indiana the provisions of statute seem somewhat indefinite. It is pro- vided that if there is no child, but parents and surviving hus- band or wife, the latter takes three fourths and the parents or parent one fourth.^ It is also provided that if there is no issue the estate goes one half to the parents or parent and one half to the brothers and sisters.^ Possibly it is intended that the latter provision shall take effect only when there is no sur- viving husband or wife. If there are no brothers or sisters or their descendants, the parents take the whole.'' In California the parents, if both are alive, take one half the estate with the surviving husband or wife ; if either parent is dead, the other takes the whole half ; and if there is no surviving husband or wife, the whole estate goes to the parents in the same way.8 In Maryland the mother takes an equal share with the brothers and sisters or their descendants ; and if there are none, she takes the whole, there being of course no issue, 1 Mich. Ann. Sts. § 5772. = jo^^ Rev. Code, §§ 2455-2457. » Rev. Sts. §§ 4159-4163.. * 111. Ann. Sts. c. 39, f 1. 6 Rev. Sts. § 2489. « Rev. Sts. § 2469. ' Rev. Sts, § 2470. « Cal. 3 Deer. Ann. Sts. § 1386. DISTRIBUTION OP INTESTATE ESTATES. 319 father, or surviving husband or wife.^ In South Carolina the parents share with the surviving husband and wife and the brothers and sisters or their descendants, the husband or wife taking one half and the rest dividing the other half equally ; if there is no husband or wife, the others take the whole ; and if no brothers or sisters or their children, the parents take the whole.^ § 516. Distributive Rights of Brothers and Sisters ; Right of Representation. — The general rule as to brothers and sisters is that they come next in preference after parents, although, as will be seen, in many States they share with parents, and in some with the surviving husband or wife. It will conduce to clearness in examining this portion of the statutes of distri- bution, to take up the States in detail. In Massachusetts, in case there is no surviving husband or wife or issue or parents, the personal property goes to the brothers and sisters of the deceased and to their issue, by right of representation. If there is no brother or sister alive, it goes to the issue ; if all these are in equal degree, they share equally ; if in unequal degree, they take by right of representation.^ In Maine, Ver- mont, New Hampshire, and Rhode Island they share with the mother, as has been seen ; and if there is no mother, take the whole.* In Connecticut the brothers and sisters and their representatives take precedence of parents, but with the limi- tation that only those of the whole blood shall so take, those of the half blood coming in after the parents.^ In New York brothers and sisters share with the mother in the manner already explained, and take the whole estate if there is no mother ; and their children take by right of representation ; but the right extends no further among collaterals.^ In Ohio 1 Md. Rev. Code, art. 48, § 11. 2 S. C. Gen. Sts. § 1845. » Mass. Pub. Sts. c. 125, § 1. * Supra, § 482; Reynolds, Appt., 57 Me. 350. 6 Conn. Gen. Sts. § 632. « See supra, § 482; 3 N. Y. Rev. Sts. p. 2304, § 75. 320^ LAW OP EXECUTORS AND ADMINISTRATORS. brothers and sisters of the whole or half blood take before the parents, the whole blood taking before the half.^ In Illinois brothers and sisters and their descendants are in a class with the surviving parent or parents, if any, all sharing alike ; if there are no surviving parents, they form, a class by them- selves, the descendants having the right of representation, which goes no further in collateral kindred.^ In Indiana brothers and sisters take only when there is no surviving hus- band or wife or descendants. If there are parents, the brothers and sisters and their descendants take one half the estate. If there are no parents, the brothers and sisters and their descendants take the whole.^ In Pennsylvania brothers and sisters take after parents ; if there are nephews and nieces or grand-nephews and nieces, they take with the brothers and sisters by right of representation.* The rights of brothers and sisters in Michigan, when there is a mother, have been already considered ; ^ when there is no mother, they and their children take the whole estate.® In California brothers and sisters take as in Massachusetts. In Maryland brothers and sisters and their descendants share with the mother ; and if there is no living mother, take the whole, a child taking his father's or mother's share, and the right of representation go- ing no further among collaterals.'^ In Virginia mother, brothers, sisters, and their descendants share alike.* In South Carolina the brothers and sisters, together with the parents, if any, take one moiety, if there is a surviving husband or wife ; if none, they take the whole ; and if there are no parents, the brothers and sisters take the whole.® It will be noticed that in most of the States the " descendants" or "issue " or " representatives " of 1 Rev. Sts. §§ 4159, 4163. « HI. Ann. Sts. c. 39, IF 1. ' Rev. Sts. §§ 2469, 2470. * Bright. Purd. Dig., Intest., §§ 19-21, 25, 26. 6 Supra, § 515. « Mich. Ann. Sts. § 5772 a. ■> Md. Rev. Code, art. 48, §§ 9, 10, 11, 12. 8 Va. Code, § 2548. » S. C. Gen. Sts. § 1845. DISTRIBUTION OP INTESTATE ESTATES. 321 deceased brothers or sisters are mentioned as belonging to the class. These phrases convey the right of representation, un- less it is specially limited by other statutes ; and the issue take the share of their deceased ancestors, unless all are in the same degree of kindred, in which case they take per capita, in the same way as has been already described in the case of the issue of deceased children.^ Thus, if the deceased leave no issue, father, or motlier, but one sister, children of an- other sister, and children of the deceased children of a third sister, these grand-nieces and nephews share in the distribu- tion of the estate, which should be divided into three por- tions ; 2 and if there are only nieces and nephews, they take per capita ; ^ but in cases where the children or issue of de- ceased brothers or sisters take merely as next of kin, and not by special mention in the statute, only those of equal degree take, the more remote being excluded.* § 517. Distributive Rights of Next of Kin, — After the above-mentioned degrees, the next of kin in equal degree take the property ; and the mode of ascertaining who are the next of kin has been already given in preceding sections.^ It is sometimes provided that, if there are several collateral kin- dred of equal degree, claiming through different ancestors, those who claim through the nearest ancestor shall be pre- ferred to those claiming through the more remote.® In Rhode 1 Supra, §§ 513, 514; Mass. Pub. Sts. o. 125, § 1 ; Cal. 3 Deer. Ann. Sts. § 1386; Va. Code, § 2548; S. C. Gen. Sts. § 1845; Conant v. Kent, 1'30 Mass. 179; infra, § 518. 2 Conant v. Kent, supra. ^.guo.^ ,,. Snow, 111 Mass. 889. * Bigelow V. Morong, 103 Mass. 287 ; Conant v. Kent, supra y Davis ». Stinson, 53 Me. 495. See infra, § 518. 6 § 152, et seq. « Mass. Pub. Sts. c. 135, § 3, cl. 2 ; c. 125, § 1; Me. Kev. Sts. c. 75, § 1; Conn. Gen. Sts. § 632; Vt. Rev. Laws, § 2230; 3 N. Y. Kev. Sts. p. 2304, § 75; N. H. Gen. Laws, c. 203, § 1; N. J. Rev., Orphans' Court, § 147; Ohio Rev. Sts. §§ 4159-4163; 111. Ann. Sts. c. 39, IT 1; Ind. Rev. Sts. § 2471; Pa. Bright. Purd. Dig., Intest., § 24; Mich. Ann. Sts. § 5772 a; Cal. 3 Deer. Ann. Sts. § 1386. 21 322 LAW OP EXECUTORS AND ADMINISTRATORS. Island a specific course is traced for the property in such case, that is, it is to go in equal moieties to the paternal and maternal kindred, — first to the grandfather, if there is any ; if none, to the grandmother, uncles, and aunts on the same side, or their descendants by right of representation ; if there are none of these, to the great-grandfathers, or great- grandfather if there is but one ; and if there is none, to the great-grandmother and the great-uncles and aunts and their descendants, and so on.^ If there are no kindred on the paternal side, the estate goes wholly to those on the maternal side, and vice versa? In Iowa a curious diversion is made of the property, by which the next of kin are cut off entirely, the estate going to the heirs of the deceased husband or wife, if there are no immediate next of kin of the deceased, — that is, no issue, father, mother, or surviving husband or wife.* In Maryland, after children, descendants, father, mother, sister, and brother and their descendants, all collateral relatives in equal degree take, without right of representation ; if there are no collaterals, a grandfather, or if there are two, both take ; and a grandmother may take as her husband, the grandfather, might have done, if he is dead. If there are no kindred within the fifth degree, counting down from the common ancestor to the more remote, the surplus goes to the State for school purposes.* In Virginia the estate is divided into two equal shares, one of which goes to the paternal kindred, and the other to the maternal kindred, in this course, — first to grandfathers; if there is none, to grand- mother, uncles, and aunts, and their descendants ; if none, to great-grandfather ; if none, to great-grandmother, great-uncles and great-aunts, and their descendants, and so on. If the paternal kindred fail, the whole estate goes to the mater- nal, and vice versa ; if these fail, to the husband or wife ; and 1 R. I. Pub. Sts. c. 187, § 2. 2 R. I. Pub. Sts. o. 187, § 4. » Iowa Rev. Code, §§ 2455-2457. * Md. Rev. Code, art. 48, §§ 12, 13, 17. DISTRIBUTION OF INTESTATE ESTATES. 323 if none surviving, to his or her kindred, as if he or she had survived the deceased, and then died.^ In Kansas the estate, if there are no parents, goes as if the parents had outlived the deceased, and so on through ascending ancestors and their issue.2 In South Carolina the estate is directed to go to the lineal ancestor; and if none, then to the next of kin.^ It should he noticed that the words " next of kin " in the statute of distributions do not include husband or wife, or any except blood relations.* In some States provision is made that prop- erty coming to the deceased from one parent shall go only to the kin of that parent, if the deceased was a minor and unmarried.® § 518. Right of Representation. — It will be noticed in the foregoing section that the right of representation is very gen- erally granted in case of the issue of deceased children of the intestate ;® that it is also generally granted to the children of deceased brothers or sisters, and less often to all the issue of deceased brothers or sisters ; ^ that it is rarely granted to others of the kindred ; ^ and in some States it is denied in all cases of collateral kindred.® In Pennsylvania the right of representation extends to grandchildren of deceased brothers or sisters and to children of deceased uncles or aunts, and except in these cases and the direct issue of the deceased, those who are in equal degree take the whole estate, excluding those who are more remote.^" By a recent statute of that State the right of representation is extended to de- scendants of grandparents, who, if all in the same degree, 1 Va. Code, § 2548. " Kans. Comp. Laws, § 2259. 8 S. C. Gen. Sts. § 1845. * Haraden v. Larrabee, 113 Mass. 431. 5 Me. Rev. Sts. c. 75, § 1; Benson v. Swan, 60 Me. 161; Conn. Gen. Sts. § 632; N. H. Gen. Laws, c. 203, § 2. See the statutes of each State upon this point. ° Supra, § 514. ' Supra, § 516; N. H. Gen. Laws, c. 203, § 3; Davis u. Vanderveer, 24 N. J. Eq. 558; Davis v. Stinson, 53 Me. 495; Mich. Ann. Sts. § 5772 a. 8 Supra, § 517. » Vt. Rev. Laws, § 2230. w Bright. Purd. Dig., Intest., §§ 25, 26, 33. 324 LAW OP EXECUTORS AND ADMINISTEAlTOES. take equal shares ; if in unequal degrees, take by right Of repre- seritation.i In Virginia it seems that the statute allows repre- sentation among any descendants of any class entitled to share.^ The effect of the presence or absence of this right is as follows : In cases where it does not exist, all living mem- bers of the class entitled to take, take equal Shares, excluding the issue of all deceased members of the class ; ^ in cases where the right exists, if all the kindred who are alive at the death of the intestate are of the same degree, no matter what the degree of the class may be, the case is one of equal kinship, and all the members of the class take equal shares, and the right of representation does not apply ; * but if the kindred are in unequal degrees of nearness to the intestate, the issue of deceased members of the class nearest in kin to the intestate take their ancestor's share per stirpes.^ For instance, if there are first, second, and third cousins, the issue of diiferent brothers and sisters of the deceased, the first cousins take per capita equal shares in New Jersey, and the second and third are excluded from any share, as the right of representation does not extend so far.® But it should be noticed that, when a will provides that the property shall go to those entitled to it by the statute of distributions, it goes by right of represen- tation when that right exists ; but if the will directs that the property shall go in equal shares to thosfe entitled to it by the statute of distributions, those who would take by representa- tion take an equal share with the others J In cases of unequal kinship among kindred having the right of representation, — for example, if the nearest living relative of the deceased is a 1 Acts 1887, c. 145. * Va. Code, § 2548. 8 Conant v. Kent, 130 Mass. 179; Bigelow v. Morong, 103 Mass. 287; Davis V. Vanderveer, 23 N. J. Eq. 580. * Snow V. Snow, 111 Mass. 389; Knapp v. Windsor, 6 Cush. 156, 162. 5 Davis V. Vanderveer, supra ; Wagner v. Sharp, 33 N. J. Eq. 520. ' Davis V. Vanderveer, supra. ' AVelsh V. Crater, 32 N. J. Eq. 180; Scudder v. Van Arsdale, 13 N. J. Eq. 110, 112. DISTRIBUTION OP INTESTATE ESTATES, 325 child of a brothei- or sister, — all the issue of deceased brothers and sisters take by right of representation ; but if the nearest living relatives of the deceased are beyond the limit of the right of representation, — for example, a grandchild of de- ceased brothers or sisters, in New Jersey, — those who are next of kin in. equal degree share equally, excluding those who are more remote.^ If the next of kin are all children of deceased brothers and sisters, they all take equally, and not by the shares of the deceased brothers and sisters.^ Perhaps the best way of finding whether the right of representation exists in any case is to consider to what class of relatives as distributees the estate descends, — for example, brothers and sisters, or nephews and nieces, or cousins, and so forth. The class be- ing determined, the question whether any one not in that class has a right to any share in the estate may be determined by consulting the statute of the State in regard to the right of representation. For instance, if the nearest relatives are first cousins, they constitute the class ; and if there are second cousins, their right to a share as children of deceased first cousins depends on whether they are by the statute of the State entitled to represent their parent. In New Jersey the statute limits representation to the children of deceased brothers and sisters, and therefore in that State the second cousins cannot share in the estate.^ To sum up, it may be said, in all cases where all the next of kin are of equal de- gree, they take per capita ; if they are of unequal degree, and the right of representation applies, they take per stirpes ; if the right of representation does not apply, the nearest of kin take per capita, entirely excluding the more remote.* 1 Wagner v. Sharp, 33 N. J. Eq. 520 ; Davis v. Vanderveer, 23 N. J. Eq. 5S0; Krout's App., 60 Pa. St. 382. 2 Wagner v. Sharp, mpra; Miller's App, 40 Pa. St. 387; Stent «. McLeord, 2 McC. Ch. 354; Snow v. Snow, 111 Mass. 389. ' Davis V. Vanderveer, supra. * Wagner v. Sharp, supra; Davis v. Vanderveer, supraj Miller's App., supra; Krout's App., supra. 326 LAW OP EXECUTORS AND ADMINISTEATOES. § 519. Escheat, Kindred of Half and Whole Blood. — It is only in case of total lack of kindred or surviving husband or wife that the estate escheats to the Commonwealth.^ It is generally provided by statute that kindred of the half blood are on an equality with those of the whole blood,^ and therefore the property will go to nearer relatives of the half blood in pref- erence to more remote of the whole blood ; ^ and in such a case the result follows that the kindred of the half blood take their distributive shares equally with those of the whole blood ; * but in some States the whole blood is preferred to the half blood.^ § 520. Eandred on Paternal and Maternal side. — It has already been said that in most States now no difference is made between kindred on the paternal and maternal sides, although the statutes of each State must be consulted in order to ascertain what the law upon this point is in each particular State.® In Rhode Island, the difference in this case has al- ready been pointed out ; and so in Virginia.'' §621. Illegitimate chudren. — The rights of illegitimate children are generally regulated by statute in the various States, by which various degrees of legitimacy are conferred upon them. In the absence of statutes, they have no right to any distributive share except from the estates of their de- 1 Mass. Pub. Sts. c. 135, § 3, cl. 6; Me. Rev. Sts. c. 75, § 1; Pa. Bright. Purd. Dig., Intest., § 31; Cal. 3 Deer. Ann. Sts. § 1386. And see the statutes of each State, separaiim. 2 Supra, § 161. See Appendix of Statutes. Me. Kev. Sts. c. 75, § 2; Vt. Rev. Laws, § 2231 ; 3 N. Y. Rev. Sts. p. 2304, § 75; R. I. Pub. Sts. c. 187, § 9; 111. Ann. Sts. c. 39, 1 1; Ind. Rev. Sts. § 2472; Pa. Bright. Pnrd. Dig., Intest., § 21; Mich. Ann. Sts. § 5776 a (except as to estates of descent, devise, or gift) ; Cal. 3 Deer. Ann, Code, § 1394 (same excep- tion); Md. Rev. Code, art. 48, § 12; Kans. Comp. Laws, § 2267. 8 McCune's App., 65 Pa. St. 450. * Larrabee v. Tucker, 116 Mass. 562. 6 Conn. Gen. Sts. § 682: Ohio Rev. Sts. §§ 4159, 4163; Va. Code, § 2.549; S. C. Gen. Sts. § 1845. ' Knapp V. Windsor, 6 Cush. 156 ; supra, § 160. See also Appendix of Statutes. ' Supra, § 517. DISTRIBUTION OP INTESTATE ESTATES. 327 scendants, who also may inherit from them.^ Therefore an illegitimate child cannot inherit from his mother unless by statute ; ^ but statutes exist in many States by which such a child inherits from, and transmits estate to, his mother and her kin as if he was her lawful child.^ In New Jersey, the statute, provides that if the mother of an illegitimate child dies leaving no husband or lawful issue, her illegitimate child shall in- herit, and that the personal property of any deceased illegiti- mate child who died unmarried and leaving no issue, shall go to his mother.* In the same State, it follows as a result of the statutes and the rule of common law, that one cannot make a claim to a distributive share of a grandfather's estate through his illegitimate daughter. Thus where a woman claimed a share in an estate of a deceased man on the ground that she was the daughter of a daughter of the intestate, her claim was successfully resisted by showing that the mother of the claimant was an illegitimate daughter of the deceased, although her parents had afterwards intermarried, and she had always been treated as if she were the legitimate daugh- ter of the deceased.® In Massachusetts, by statute, in the dis- tribution of estates an illegitimate child is considered the heir of his mother and of any maternal ancestor, and the lawful issue of an illegitimate person represents such person, and takes by descent any estate which such person would have taken if living; if an illegitimate child dies intestate and without issue who may lawfully inherit his estate, such estate 1 Cf. supra, § 163 ; and see Appendix of Statutes. 2 Cooley V. Dewey, 4 Pick. 94. s Me. Rev. Sts. c. 75, §§ 3, 4; Vt. Rev. Laws, § 2232 ; 3 N. Y. Rev. Sts. p. 2304; N. H. Gen. Laws, c. 203, §§ 4, 5; R. I. Pub. Sts. c. 187, § 7; Ohio Rev. Sts. § 4174; 111. Ann. Sts. c. 39, 1[ 2; Ind. Rev. Sts. §§ 2474, 2477; Pa. Bright. Purd. Dig., Intest, § 40; Mich. Ann. Sts. §§ 5773 a, 5774 a; Iowa Rev. Code, § 2465; Cal. 3 Deer. Ann. Code, §§ 1387, 1388; M(l. Rev. Code, art. 48, § 16; Va. Code, § 2552; Kans. Comp. Laws, § 2260. * N. J. Rev., Orphans' Court, § 147. « Bussom V. Forsyth, 32 N. J. Eq. 277. 328 LAW OF EXECUTORS AND ADMINISTRATORS. descends to his mother ; an illegitimate child whose parents have married and whose father has acknowledged him as his child, is considered legitimate.^ A further statute provides that a divorce for adultery committed by the wife does not affect the legitimacy of the issue of the marriage, but the legitimacy if questioned must be tried and determined accord- ing to the course of the common law.^ Under these statutes it is held that a bastard cannot inherit through a legitimate child of the same mother, since the bastard can only inherit from his mother and her lineal ancestors ; ^ but he may take a legacy from a legitimate child of the same mother when he is described in the legacy as " my brother A." * In many States, a child is legitimized if the parents afterwards iatermarry and recog- nize the child ;^ or if the father acknowledges the child to be his in some formal manner, as in writing,^ in which case he inherits as if legitimate ; but in some States the mother in- herits from him in preference to the father.'^ In Pennsyl- vania illegitimate children born of the same mother, and leaving neither mother nor issue capable of inheriting, may take and inherit from each other as next of kin.^ In New Hampshire it is provided by statute that when the mother of a bastard dies, her personal estate shall be distributed by de- cree of the probate court equally among her legitimate and illegitimate children and their issue.^ In Indiana it is pro- vided that if a man has no lawful heirs resident in the United 1 Pub. Sts. c. 125, §§ 3, 4, 5. " Pub. Sts. c. 146, § 2-3. ' Haraden v. Larrabee, 113 Mass. 432; Pratt v. Atwood, 108 Mass. 40. 4 Dane v. Walker, 109 Mass. 180. 6 Me. Rev. Sts. c. 75, § 3; Conn. Gen. Sts. § 630; Ohio Kev. Sts. § 4175; m. Ann. Sts. c. 39, 1 3 ; Ind. Rev. Sts, § 2476; Mich. Ann. Sts. § 5775 a; Cal. 3 Deer. Ann. Code, § 1387; Va. Code, § 2552. « Me. Rev. Sts. c. 75, § 3 ; Mich. Ann. Sts. § 5775 a; Iowa Rev. Code, § 2466; Cal. 3 Deer. Ann. Code, § 1387; Kana. Comp. Laws, §§ 2261, 2262. ' See statutes above cited. 8 Bright. Purd. Dig., Intest., § il. 9 N. H. Gen. Laws, c. 203, |,5. DISTRIBUTION OP INTESTATE ESTATES. 329 States, or lawful children outside of the United States, his illegitimate children resident in the United States are his heirs, but only if he has acknowledged them to be his. chil- dren in his life ; and this fact cannot be proved by the testi- mony of the mother.^ § 522. Adopted Children. — The rights of adopted children are of course wholly the creation of the statutes, and the re- spective statutes of each State must be referred to to find what these rights may be. It may be said, however, that in most States a child regularly adopted is given all the rights of inheritance which belong to a child by birth, except in some States, of inheritance of estates tail, or of collateral in^ heritance by representation.^ But in New York, such right is expressly denied to the adopted child.* It is provided by statute in Massachusetts that a person adopted in accordance with the provisions of law * takes the same share of property which the adopting parent could have devised by will, that he would have taken if born to such parent in lawful wedlock ; and he stands in regard to the legal descendants, but to no other of the kindred of such parent, in the same position as if so born to him. If the adopted person dies intestate, his prop- erty acquired by himself or by gift or inheritance from his adopting parent, or from the kindred of such parent, shall be distributed among the persons who would have been his kin- dred if he had been born to his adopting parent in lawful, wedlock ; and property received by gift or inheritance from his natural parents or kindred shall be distributed in the same way as if no act of adoption had taken place, such distribution 1 Ind. Rev. Sts. § 2475. 2 Mass. Pub. Sts. c. 148; Me. Rev. Sts. c. 67, §35; Conn. Gen. Sts. § 472; N. H. Gen. Laws, c. 188, § 4; E. I. Pub. Sts. o. 164, § 7; N. J. Rev., Infants, § 9; 111. Ann. Sts. c. 4, % 5; Ind. Rev. Sts. § 825; Pa. Bright. Purd. Dig., Adoption, § 1; Mich. Ann. Sts. § 6379; Iowa Rev. Code, § 2310; Cal. 3 Deer. Ann. Code, §§ 228, 229; Kans. Comp. Laws, § 3482. 8 3 N. Y. Kev. Sts. p. 2342, § 10. ■• Pub. Sts. c. 148. 330 LAW OP EXECUTOBS AND ADMINISTRATORS. to be ascertained in such manner as the court may decree. No adopted child loses his right to inherit from his natural parents or kindred. The term " child " in a devise or bequest includes a person adopted by the testator, unless the contrary plainly appears by the terms of the instrument ; but when the testator is not the adopting parent, the adopted person does not have under the will the rights of a child born in wedlock to the adopting parent, unless it plainly appears to have been the intent of the testator to include it. A second adoption terminates all rights under the first, except as to interests in property al- ready vested.! ^^ inhabitant of another State duly adopted according to its laws, shall have the rights given him by the laws of that State, except they conflict with the laws of this State.^ An adopted child was held under this statute to take under a trust for the benefit of the child or children of R., which also contained a bequest over in case said R. died with- out leaving any lawful issue.^ § 523. Posthumous Children. — It is sometimes enacted by statute that posthumous children shall be considered as alive at the death of their father.* In some States this is true only of children of the person whose estate is under settlement.^ § 524 Time of Distribution, not before the End of a ITear. — It has already been seen that the executor is allowed a certain time in which to collect the estate and pay the debts, before he can be compelled to pay legacies. In the same way, an ad- ministrator is allowed a definite time before he is obliged to make distribution of the estate. In England, no distribution 1 Pub. Sts. c. 148, §§ 7, 8, 10. « Pub. Sts. c. 148, § 9. » Sewall u. Koberts, 115 Mass. 276. * Mass. Pub. Sts. c. 125, § 6; 3 N. Y. Rev. Sts. p. 2304, § 75, cl. 13; 111. Ann. Sts. c. 89, H 9; Pa. Bright. Purd. Dig., Intest., § 32; Kans. Comp. Laws, § 2268; S. C. Gen. Sts. § 1846. 6 R. I. Pub. Sts. c. 187, § 3; Ohio Rev. Sts. § 4179; Ind. Eev. Sts. § 2467; Md. Rev. Code, art. 48, § 15; Va. Code, § 2555. DISTRIBUTION OF INTESTATE ESTATES. 331 shall be made till after one year from the intestate's death ; ^ and in the United States, some time is often fized, before which he cannot be compelled to pay over the estate to the heirs ; for example, in New Jersey, one year from the grant of adminis- tration.2 And the same limit is fixed in Pennsylvania, and the administrator cannot be compelled to make distribution until one year has expired from the grant of administration.^ The payment in distribution is, however, dependent largely on the condition of the estate as shown in the administrator's ac- counts ; for, as was said pi'eviously in regard to payment of legacies, if his accounts show that all the debts are paid and nothing remains to be done but to distribute, the court may or- der the administrator to distribute, either wholly or partially, and will not allow him to retain the estate in his hands.* The decree of distribution, when it is made by the court, settles the duty of the administrator to pay over the estate forthwith, if so ordered, and also protects him in making such a payment.^ In some States, the administrator may, before paying a dis- tributive share, require a refunding bond to secure him against unknown debts ; ^ and it is provided by statute in Massachu- setts that if an administrator, within two years after having given bond for the discharge of his trust, is required by any of the next of kin to make payment in whole or in part of a dis- tributive share, the probate court will require the person who demands such payment to give bond to the executor or ad- ministrator to refund the amount so to be paid, or so much thereof as may be necessary to satisfy any demands that may 1 22 & 23 Car. II. c. 10, § 8. 3 Rev., Orphans' Court, § 149. 8 Bright. Purd. Dig., Deced. Est., § 219. * Me. Rev. Sts. c. 65, § 27; Md. Rev. Code, art. 50, § 220. « Sayre v. Sayre, 16 N. J. Eq. 506; Pierce v. Prescott, 128 Mass. 140; "White V. Wetherbee, 126 Mass. 450; Shriver v. State, 65 Md. 282. 6 Me. Rev. Sts. c. 65, § 30; Vt. Rev. Laws, § 2240; R. I. Pub. Sts. o. 187, § 10; N. J. Rev., Orphans' Court, § 150; Pa. Bright. Purd. Dig., Deced. Est., § 222. 332 LAW OP EXECUTORS AND ADMINISTRATORS. be afterwards recovered against the estate of the deceased, and to indemnify the executor or administrator against all loss or damage on account of such payment.^ By another statute of the same State, partial distribution may be made at any time by order of the court, after such notice as it sees fit.^ This power of ordering partial distribution is, in many States, aflSrmed and settled by statute.^ § 525. Set-off of Debts against Distributive Share. — It is sometimes provided by statute that in the payment of dis- tributive shares any debt due to the estate from the distributee should be deducted from his share, and the probate court may determine the amount and validity of the debt, and make proper orders to give effect to the set-off and deduction. But this deduction, until it is actually made, does not hinder the recovery of the debt by any remedy the administrator may have, nor affect the liability of the distributee for the excess of his debt over the amount of his share.* § 526. Effect of Advancement on Distributive Share. — Ad- vancements made to children by the parents in their lifetime are generally considered as being part of the distributive share of the children in the intestate's estate, and are to be reckoned as such in computing the proper distribution of the estate.^ The statute upon this subject in Massachusetts provides that any estate, reaf or personal, given by an intestate in his life- time as an advancement to a child or other lineal descendant, shall be considered as part of the intestate's estate, so far as 1 Pub. Sts. c. 136, § 20. 2 Pub. Sts. c. 136, § 21. » Pa. Bright. Purd. Dig., Deced. Est., §§ 220, 221. Supra, n. 4. * Mass. Pub. Sts. o. 136, §§ 22, 23. 6 Mass. Pub. Sts. c. 128; Me. Rev. Sts. c. 75, §§ 5-7; Conn. Gen. Sts. § 630; Vt. Rev. Laws, §§ 2246-2251; 3 N. Y. Rev. Sts. p. 2305, §§ 76-78 N. H. Gen. Laws, c. 203, §§ 9-12; R. I. Pub. Sts. c. 187, § 18; N. J Rev., Orphans' Court, § 147; Ohio Rev. Sts. § 4169, et seq.; 111. Ann. Sts, c. 39, 1[ 5; Ind. Rev. Sts. § 2479; Pa. Bright. Purd. Dig., Intest., § 35 Mich. Ann. Sts. § 5777 a, et seq. ; Iowa Rev. Code, § 2459; Cal. 3 Deer, Ann. Code, § 1395, et seq. ; Md. Rev. Code, art. 48, § 7 ; Va. Code, § 2561 ; Kans. Comp. Laws, §§ 2264, 2265; S. C. Gen. Sts. § 1849. DISTEIBUTION OF INTESTATE ESTATES. 333 regards the distribution of his estate among his issue, and shall be taken by such child towards his share of the estate,; but he shall not be required to refund any part, although it exceeds his share.^ If such advancement is made in real es- tate, the value thereof shall be considered part of the real estate to be divided ; if it is in personal estate, it shall be con- sidered part of the personal estate ; 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 out of the other part of the estate as will make his whole share equal to the shares of the other heirs who were in the same degree with him. All gifts so expressed in writing or charged as such by the intestate in writing or acknowledged by recipient as such in writing are deemed advancements.^ If the value of an ad- vancement is expressed in the conveyance or in the charge or acknowledgment, that is taken to be its value ; otherwise its value should be estimated as of the time when the gift was made. If the person to whom the gift is made dies before the intestate, leaving issue, the advancement shall be charged to the representatives of the deceased as if made to them. The widow's share shall be computed, leaving out the advance- ment, and the probate court may settle all questions arising under this statute.^ § 527. Nature of the Right to a Distributive Share ; Par- tial Intestacy ; Distribution governed by liavr of Domicil of Decedent. — The right to a distributive share is a vested interest, vesting in those entitled immediately on the death of the intestate ; and although a settlement of the estate is delayed and a decree of distribution postponed, yet the decree of distribution when made relates back to the time of the de- cease of the intestate, and apportions the estate to the persons then entitled or their representatives. The decree does not 1 Pub. Sts. c. 128, § 1. 2 Pub. Sts. 0. 128, §§ 2, 3. « Pub. Sts. 0. 128, §§ 4, 5, 6, 7. 334 LAW OP EXECUTORS AND ADMINISTRATORS. found the right which is determined by the state of things at the intestate's death, but judicially ascertains the heir, the whole amount to be distributed, and the amount of the dis- tributive share of each.^ Moreover, this right to distribution arises in cases of partial as well as total intestacy ; for ex- ample, if there is a will but also estate not covered by the will, or if the will fails as to some portion of the estate, the intestate estate is distributed under the statute of distributions as if there had been no will. Thus it has been already seen that if the wife leaves more of her property away from her husband than she is allowed to by law, she is considered to be intestate as to the surplus, which then goes to the husband.^ So, if the deceased was a married man, and there is partial intestacy, his widow gets her distributive share, and although she may die before distribution, yet her representative is en- titled to her share.^ The distribution of the estate among the various next of kin is governed by the law of the State where the deceased last dwelt, although it is different from that of the State where the goods are situated, and the rights of next of kin depend upon the laws of the State of domicil,* and the domicil of a married woman is that of her husband.^ The rights of a widow to her distributive share are governed by the laws of her husband's domicil.^ § 528. To whom the Distributive Share is Payable. — Since the right to a distributive share is a vested right, although payment may not be made for some time, it may happen that events occur to transfer this right in the mean time. Thus a voluntary conveyance of the right may be made by the dis- 1 Per Shaw, C. J., in Davis ». Newton, 6 Met. 537 ; Nickerson v. Bowly, 8 Met. 430; Skellenger u. Skellenger, 82 N. J. Eq. 662 ; Welsh v. Crater, 32 N. J. Eq. 180. 2 Supra, § 509. ' Skellenger v. Skellenger, 32 N". J. Eq. 662; Nickerson r. Bowly, 8 Met. 430. ^ Davis u. Boylstot), 9 Mass. 355. See infra, § 560. 6 Harrell v. Willis, 37 N. J. Eq. 458. DISTRIBUTION OF INTESTATE ESTATES. 335 tributee ; and in such a case the share when it is payable should be paid to the one to whom it has been conveyed.^ Again, the distributee may have gone into bankruptcy or insolvency ; and in such a case his right to his distributive share passes to the assignee in bankruptcy or insolvency with the rest of the bankrupt's property, and should be paid to him.^ When, in such case, all the property of the insolvent which he had at the time of the first publication of the notice of insolvency vests in the assignee, a distributive share vests in the assignee if the intestate died before that publication, but not if he died after that date.^ Again, the distributive share may be at- tached or trusteed in the hands of the administrator, who in such case must retain the fund until the termination of the suit in which the attachment was made decides to whom the fund is payable.* Such attachment by trustee process may be made at any time after the administrator has qualified,^ and before the actual payment. It is not necessary to wait till a decree of distribution is made ; ® but the attachment covers all that the distributee will eventually be entitled to receive.'' Such attachment does not bind an administrator when the debtor owes the administrator more than the amount of his distributive share.® Besides these conveyances, voluntary or involuntary, the right to the distributive shares passes, at the death of the distributee, to his personal representatives, or to a legatee if he has bequeathed it, and should be so paid.^ Thus, when one die, and there is a partial intestacy as to his estate, as well as when there is complete intestacy, his widow has a right to a distributive share; and if she dies before 1 Stevens ». Palmer, 15 Gray, 505 ; Enowlton v. Johnson, 46 Me. 489. 2 Hay V. Green, 12 Cush. 282. 8 Davis V. Newton, 6 Met. 537, 540. * Mass. Pub. Sts. c. 183, § 22. ^ Davis v. Davis, 2 Cush. 111. 6 Holbrook v. Waters, 19 Pick. 354; Wheeler v. Bowen, 20 Pick. 563. T Boston Bank v. Minot, 3 Met. 507. 8 Henshaw v. Whitney, 11 Gray, 223. ' Hooper v. Hooper, 9 Cush. 122. 336 LAW OF EXECUTORS AND ADMINISTRATOES. distribution is actually made, her personal representatives — that is, her executor if she left a will, otherwise her adminis- trator — are entitled to the payment of the share to them.^ This rule is affirmed in the statutes of Maryland.*^ The right of the wife at common law to any distributive share in any estate belonged to her husband, and if he reduced this right to possession, she lost all claim on it ; but if he died before reducing it to possession, her right revived.^ By statute now in most States, the wife's right to such a shai'e is free from the husband's control. As to the question of the rights of his creditors in such an interest in a distributive share before the statute in regard to married women's property was enacted, it will be of assistance to compare what was said on this subject in regard to legacies to the wife.* To which it may be added that the equitable right of the wife to claim provision out of a distributive share as against her husband's creditors was lost by payment of the share to her, for it then became her husband's wholly.^ § 529. Actions for Distributive Shares. — The right of those entitled to the estate to bring actions for their distributive shares depends somewhat upon the statute of the State. Generally such a right is not given until a decree of dis- tribution has been ordered by the court, after which, the amount which each distributee is to take being ascertained, he may generally bring suit at law to recover that amount. If no such decree has been rendered he should apply to the probate court to compel the administrator to account, and then for a decree of distribution.® If, in such a suit, the plaintiff undertakes to claim any specific share of the 1 Nickerson v. Bowly, 8 Met. 430 ; Skellenger v. Skellenger, 32 N. J. Eq. 662; Gill v. Roberts, 33 N. J. Eq. 476. 2 Md. Rev. Code, art. 48, § 13. ' Hayward v. Hayward, 20 Pick. 517; Gill v. Roberts, 33 N. J. Eq. 476. * Supra, §§ 498, 499. ^ chase v. Palmer, 25 Me. 341. » Cathaway v. Bowles, 136 Mass. 54. DISTEIBDTION OP INTESTATE ESTATES. 337 estate he must show facts which entitle him to claim that share. For instance, if the deceased had four sisters and two brothers, and the plaintiff is the only son of one of these brothers who died before the deceased, and it appear that two of the sisters died also before the deceased leaving no issue, and the plaintiff claims one third, the burden is upon him to show that the other brother died leaving no issue, and not upon the administrator to show that the other brother or his issue is still alive.^ § 530. Investment before Distribution. — By a special stat- ute in Massachusetts, if a sum of money or a legacy which a decree of the probate court has ordered to be paid over re- mains unclaimed for six months, the executor or administra- tor who was ordered to pay over the same may deposit it in the savings bank, or invest it in bank or other stock, as or- dered by the court. The deposit is in name of the judge, and when the person entitled satisfies the judge of his right to the deposit, the judge will order it paid over.^ The probate court in Massachusetts also has power to order the public adminis- trator to distribute the estate in his hands among the next .of kin, just as would have been done by an administrator of ;the estate.* 1 Shriver v. State, 65 Md. 285. 2 Pab. Sts. 0. 144, § 16; Sts. 1885, c. 376. ' .Parker v. Eiiokeus, 7 Alien, 511. 22 338 LAW OF EXECUTORS AND ADMINISTRATORS. CHAPTER XIX. ADMINISTRATION ACCOUNTS. § 531. Substance of Accounts. § 542. Payment of Debts ; Interest. 532. Time and Manner of Accounting. 543. Debts baiTed by Statute of Limi- 533. Appraisal Value, Effect of. tations. 534. Bad Debts. 544. Money advanced by Executor or 535. Estate not in Inventory. Administrator. 536. Proceeds of Real Estate ; In- 54.'). Commissions and Compensation. come ; Interest. 546. Compensation fixed by WiU ; 537. Allowances in Account. Forfeiture of Commissions. 538. Funeral Expenses. 547. Failure to account, Effect of. 539. Costsof Administration; Counsel 548. Settling Accounts, wbo may ob- Fees. ject. 540. Expenses allowed. 549. Effect of Allowance of Account. 541. Care of Real Estate, when al- 550. Accounting in Equity. lowed. § 531. Substance of Accounts. — The questions relating to the rendering of administration accounts have already been somewhat examined, in considering the questions as to assets, payment of debts and legacies and distributive shares, and other similar topics, and it will not be necessary to enlarge upon these subjects, since an accounting is merely a brief statement of the manner in which the executor or administra- tor has performed the duties of his office in collecting the estate and making payments to those who are entitled, — creditors, legatees or distributees, and so forth. The basis of the accounting is that he charges himself with the corpus of the estate, as shown by the inventory, and any increase there- oh, and is allowed all his proper and legal payments. The charging part has therefore been considered in considering what are assets of the estate ; and the allowances, in con- sidering the payments of debts, legacies, and distributive shares. There remain, however, the form and time of ac- counting to consider. ADMINISTRATION ACCOUNTS. 339 § 532. Time and Manner of Accounting. — The executor or administrator is generally required by statute law to render an account at stated intervals, which are ordinarily once with- in the first year of his office, and afterwards either at such times as he shall be ordered by the court, or at regular inter- vals, — as, for instance, every year, or every eighteen months. This account is required to be verified by the oath of the ac- countant, and he is also liable to be examined under oath as to the items in the account rendered by him. These matters of practice vary in detail according to the statutes of the different States, to which the reader must be referred. Neither the executor nor administrator can in any way bar the right of those interested in the estate to require an ac- count. For instance, although the administrator may when he is cited to account produce receipts from all those entitled to distribution of the estate acknowledging receipt of their distributive shares in full, he is still liable to account, in order that the distributees may have an opportunity to show whether or not the receipts were properly obtained and ought to bar them.^ And even if the person who cites the executor or ad- ministrator to account has given a release of all his interest in the estate, still if he asserts that this release is void, he is entitled to compel the executor or administrator to account.^ But an executor or administrator who has given bond to pay debts and legacies, as has before been seen, is not obliged to account.* If there is administration taken out in several States, the accounts of the various administrations may and must be settled in the States to which they belong.* An ad- ministrator who is deposed from his office by the finding of a will must account for his administration, even though he is the executor of the will.^ 1 Bard v. Wood, 3 Met. 74. 2 Reilly v. Duffy, 4 Dem. 366. ? Supra, § 267. * Jennison v. Hapgood, 10 Pick. 77. * Bennett v. Woodman, 116 Mass. 518. 340 LAW OP EXECUTORS AND ADMINISTBATOES. § 533. Appraisal Value is the Charge of Corpus of Estate. — In his account he is chargeable with all the personal estate, and with any interest, income, or profit thereof. There are many statutory provisions in various States as to what the executor or administrator is chargeable with in his accounts ; but the same principle runs through all, that the value of the estate at the death of the deceased is the basis of accounting, and if it has increased in value or diminished in value with- out the fault of the executor or administrator, since then, the gain or loss is the gain or loss of the estate, and not of the executor or administrator .^ The liability of the administrator to be charged with property of the deceased may be varied by the acts of those entitled to distribution of the estate. Thus if all persons interested in the estate request the administra- tor or executor to continue the business of the deceased, and he does so in good faith, and loses money in it belonging to •the estate, he will be allowed for such loss in his accounts.^ In many States, the value of the personal property as it is stated in the inventory and appraisal filed by the executor or administrator at the beginning of his office, is made the basis of his accounting, and he is charged with that value, allowing him for any decrease which does not arise from his fault, and charging him with any increase in the value of the estate over that appraisal value.^ The statute in Massachusetts on this subject is to the effect that the executor or administrator must account for the personal estate at its appraisal value, except that he shall not be allowed any profit for its increased value, and shall not sustain loss by its decreased value or de- struction, if not caused by his fault. If he sells any of the 1 3 N. Y. Rev. Sts. p. 2303, § 57; Ohio Rev. Sts. §§ 6179, 6180; Ind. Rev. Sts. §§ 2386, 2389; Mich. Ann. Sts. § 5949; Kans. Comp. Laws, c. 37, §§ 152, 153; Rolfe v. Van Sickle, 40 N. J. Eq. 158. 2 Poole V. Munday, 103 Mass. 174. 8 Mass. Pub. Sts. b. 144, § 3; Vt. Rev. Laws, §§ 2096, 2097; Mich. Ann. Sts. §§ 5950, 5951; Iowa Rev. Code, §§ 2471-2473; Md. Rev. Code, art. 50, §§ 213, 219; Cal. Code, -Giv. Proc. §§ 1613, 1614. ADMINISTRATION ACCOUNTS. 341 personal estate for njore than its appraisal value, he must ac- count for the excess ; if for less, he niay be allowed for the loss, if it appears to the court that the sale vas expedient and for the interest of all concerned.^ In Rhode Island the execu- tor or administrator must account for the whole estate, except money due, at double the appraisal value, unless the whole has been sold at public auction, or unless the probate court has directed a sale of the whole or a part at private sale, in which case only the net proceeds shall be accounted for.^ In New Hampshire and Maine the estate is to be accounted for at its appraised value, except so far as it has been sold by order of court ; in which case it is accounted for at the price sold.3 § 534. Bad Debts ; Debt of lizecutor or Administrator. — An executor or administrator is never ^eq^ired to shoulder the loss of uncollectible debts ; a,nd although a debt may be in- ventoried at its face value, yet, if it remains uncollected without any fault of the executor or administrator, he is al- lowed the amount in his accounts.* The awkwardness of this mode of accounting has resulted in statutes in many States by which the debts which are considered bad by the appraisers of the estate are inventoried as desperate ; in which case the presumption in accounting is that they are uncollectible ; and any one who wishes the executor or administrator to be charged with the amount must show that the debts might have been collected.^ It has already been seen that the rule of the common law by which the debt of an executor was considered extinguished 1 Mass. Pub. Sts. c. 144, § 3. 2 R. I. Pub. Sts. 0. 190, § 5. 8 N. H. Gen. Laws, c. 196, § 5; Me. Rev. Sts. c. 64, § 51. * Mass. Pub. Sts. o. 144, § 3; Vt. Rev. Laws, § 2100; N. H. Gen. Laws, c. 196, § 8; Me. Rev. Sts. c. 64, § 51; Ohio Rev. Sts. § 6181; Indiana Sts. § 2389; Mich. Ann. Sts. § 5954; Cal. Code, Civ. Proc. § 1615; Kans. Conip. Laws, c. 37, § 154, 6 Supra, § 318. 342 LAW OF EXECUTORS AND ADMINISTRATORS. by his appointment, has been generally modified in the United States so far as to adopt the view which has always been taken by courts of equity, — that is, that although the remedy for the debt is gone, because an executor cannot in his offi- cial capacity sue himself in his private capacity, yet the debt still remains, and in order to give the benefit of this amount to those to whom the estate is to be distributed the executor is considered to have paid the money into the estate, and is to be charged with the amount of his debt in his accounts. The same rule is applied to the case of an administrator who is also debtor to the estate. He is charged with the amount of his debt in his accounts.^ § 535. Personal Estate not in Inventory, how charged. — In many States a second inventory may be filed, if property is afterwards found belonging to the estate, not included in the first inventory ; in other States such property is included in the accounts only.^ In either case, the executor or admin- istrator is chargeable with the whole personal estate, whether included in the inventories or not.' § 536. Proceeds of Real Estate sold or mortgaged; Income of Real Estate ; Interest. — Generally speaking, the real estate of the deceased does not enter into the accounts of an admin- istrator ; but if either he or an executor has sold or mort- gaged the real estate in the course of administration to pay debts, he must account for the proceeds.* The income or rents of real estate do not generally form a part of an admin- 1 Stevens v. Gaylord, 11 Mass. 269; Bull's App., 24 Pa. St 28.6; Kingan's App., 24 Pitts. L. J. 41; Baucus v. Stover, 89 N. Y. 1; Condit V. Winslow, 106 Ind. 142 ; supra, § 485. 2 Supra, § 323. » Mass. Pub. Sts. o. 144, § 3; R. I. Pub. Sts. c. 190, § 4; N. H. Gen. Laws, c. 196, § 4; Me. Rev. Sts. c. 64, § 56; Ind. Rev. Sts. § 2389; Kans. Comp. Laws, c. 37, § 152; Boston v. Boylston, 4 Mass. 318. * Mass. Pub. Sts. o. 144, § 4; Vt. Rev. Laws, §§ 2096, 2099; Me. Rev. Sts. c. 64, §56; Ind. Rev. Sts. §2389; Mich. Ann. Sts. § 5949; Kans. Comp. Laws, o. 37, § 152. ADMINISTRATION ACCOUNTS. 343 istrator's accounts ; ^ but there are sometimes cases where he is by statute allowed to occupy the real estate or receive the profits of it by consent of the heirs, for the benefit of the estate, and he then accounts for such income as part of his administration account.^ The question of charging interest against an executor or administrator has already been considered at some length. It will be sufficient to repeat here that interest is not charged as a matter of course on all sums in the hands of the executor or administrator, but only when the circumstances of the case are such as to show that he ought to have invested them, — for example, when he has large sums in his hands which he will not be obliged to pay out for a considerable time, or, gen- erally speaking, when the case shows that he was negligent in not investing the money. If such is the case, interest will be charged against him.^ But the executor may have a balance in his hands for a long time, yet not be liable to be charged with interest on it. Thus, where the settlement of an estate was considerably delayed by a lawsuit, it was held that the executor was not chargeable with interest in the mean time.* § 537. Allowances in Account. — An executor or adminis- trator is allowed in his account his expenses, his duly author- ized payments of debts, legacies, and distributive shares, and his commission or remuneration. The law as to payments of debts and legacies and distributive shares has been already examined. To what has already been said a few instances may be added under the following heads : — §538. Funeral Expenses. — These expenses have already been considered at some length,^ and it will be necessary here 1 Brooks V. Jackson, 125 Mass. 309. 2 Mass. Pub. Sts. c. 144, § 5 ; Vt. Rev. Laws, § 2101 ; N. H. Gen. Laws, c. 196, § 11; Me. Kev. Sts. c. 64, § 57; Mich. Ann. Sts. § 5955. « Supra, §§ 441-443. * Lamb v. Lamb, 11 Pick. 371. * Supra, § 391, et seq. 344 LAW OP EXECUTORS AND ADMINISTEATOBS. only to state that whatever expenses are proper considering the state and condition of the deceased will be allowed to the executor or administrator in his accounts.^ § 539. Costs of Administration ; Counsel Fees. — An admin- istrator who is afterwards superseded by an executor, a will having been found and proved, may be allowed in his account for the expenses of his administration, but not for expenses and counsel fees incurred in opposing the probate of the will.^ The expenses of administration must be regulated by the duties of the executor or administrator ; and any costs in- curred by him in legal proceedings not connected with his duties will not be allowed. Therefore an administrator pen- dente lite cannot be allowed costs of an issue to try the A^alid- ity of a will ; ^ but an executor may be allowed the costs of establishing the will,* or of resisting a later forged will.^ For some further discussion of this subject the reader is referred to a preceding section.® Among the items usually allowed in an executor's or ad- ministrator's accounts are the sums paid by him for counsel fees in cases which he has brought or defended in the interest of the estate. This allowance is in some States established by statute ; in others, it is given by the decided cases.^ The allowance of such charges depends entirely upon whether the proceedings in which they were incurred were properly under- taken by the executors or administrators ; and this question is decided by the probate court.^ If the suit was not proper to 1 McGlinsey's App., 14 Serg. & R. 64; Bradley's Est., 32 Leg. Int. 257; Bell v. Briggs, 63 N. H. 592. » Edwards v. Ela, 5 Allen, 90. 8 Dietrich's Ace, 2 Watts, 332. * Scott's Est., 9 W. & S. 98; Hazard v. Engs, 14 R. I. 5. 6 Whitaker's Est., 38 Leg. Int. 402, 412. « Supra, § 395. ' Me. Rev. Sts. c. 63, § 32; Kingsland v. Scudder, 36 N. J. Eq. 385; Dey ». Codman, 39 N. J. Eq. 208; Forward v. Forward, 6 Allen, 497; Sterrett's App., 2 P. & W. 419 ; Brigham's Est., 1 Leg. Gaz. R. 31. 8 Kingsland v. Scudder, 36 N. J. Eq. 285; Forward v. Forward, 6 Allen, 497; St. John v. McKee, 2 Dem. 236. ADMINISTRATION ACCOUNTS. 345 the duties of his office, his expenses ■will not be allowed. Thus, for instance, it has been held that an administrator cannot be allowed for fees paid to counsel employed by him^ to oppose probate of a will discovered after his appointment as administrator.^ § 540. Allowance of Expenses. — The executor or adminis-^ trator is also allowed the reasonable expenses incurred in the execution of his trust, of whatever nature they may be. The propriety of the expenses is always a- matter to be decided by the probate court ; and if the expenses' appear to have been incurred in good faith and in managing the estate in a proper way, they will be allowed.^ Thus where the executor claimed an allowance for brokerage commissions paid to one who negotiated a sale of real estate belonging to the estate, the charge was allowed. So travelling expenses, when they are actually incurred by the executor or administrator in the duties necessarily incident to the settlement of the estate, are to be allowed in his accounts.^ § 541. Expenses for Care of Real Estate. — In regard to the expenses incident to the care of real estate, the administrator generally has nothing to do with them. He cannot therefore be allowed in his accounts for taxes assessed upon the real estate after the death of the owner, and paid by the adminis- trator, for the title to that estate is in the heirs, and the taxes should be paid by them ; * or for any sums expended on account of the real estate.^ In the case of an executor much depends upon the will. If the title to the real estate vests at once in the devisees, the executor cannot be allowed for taxes , 1 Edwards v. Ela, 5 Allen, 88; Parsons, in re, 65 Cal. 240. * Mass. Pub. Sts. c. 144, § 7; Jennison v. Hapgood, 10 Pick. 77; For- ward V. Forward, 6 Allen, 497; R. I. Pub. Sts. c. 190, § 7; Vt. Rev. Laws, § 2104; Md. Rev. Code, art. 50, § 214; Dey v. Codman, 39 N. J. Eq. 268; Wilson's Est., 2 Pa. St. 325. 8 Dey V. Codman, 39 N. J. Eq. 268. 4 Polhemus o. Middleton, 87 N. J. Eq. 240. 6 McKinney v. Watson, 8 Serg. & R. 347. 346 LAW OP EXECUTORS AND ADMINISTRATORS. or insurance, or repairs on the real estate ; ^ but if he has the care of and title to the real estate to carry out the purposes of the will, he may be allowed for such expenditures in his ac- count.2 If, however, the real estate is left to a devisee to occupy temporarily, as for life, either by a legal or equita- ble title, the occupant should pay the taxes and repairs ; but the insurance, being a permanent benefit to the estate, may be charged against it.* § 642. Payment of Debts ; Interest on Debts. — The general rules to guide the executor or administrator in the payment of debts have been already discussed, and it is not necessary to recapitulate them in this place. It is enough to say in general, that if the payment of the debt was proper, the sum paid is to be allowed to the administrator or executor in his account.* There are, however, several topics relating to this allowance of payments of debts in probate accounts which it is proper to touch upon. Thus it has already been seen that creditors are entitled to interest on their debts up to the time of pay- ment.* This interest is not, however, allowed to the executor or administrator who has paid it, if by his default the debt has not been paid as soon as it might. For instance, if he has had funds in his hands sufficient to pay debts, and delays paying them improperly, he is not allowed to charge the interest which has thus become due by his fault.® § 543. Debts barred by Statute of Limitations. — When a debt is barred by the general statute of limitations before the death of the person whose estate is in the process of settle- ment, the executor or administrator may still, according to 1 Aldridge v. McClelland, 36 N. J. Eq. 290; Jennison v. Hapgood, 10 Pick. 77. 2 Dey V. Codman, 39 N. J. Eq. 259; Wiggin v. Swett, 6 Met. 194; Watts V. Howard, 7 Met. 482. » Wiggin V. Swett, 6 Met. 194. * Stewart's App., 2 P. & W..419. 6 Supra, §§ 400, 418. ' Forward v. Forward, 6 Allen, 499. ADMINISTRATION ACCOUNTS. 347 the English rule, and in some of the United States, pay the debt and be allowed for such payment in his accounts, if the debt is valid in other respects and honestly due.^ This rule does not, however, seem to be universally ac- cepted ; and it is for some reasons unjust that an executor or administrator should be allowed to waive the statute, since it may result in loss to other creditors, whose claims are more recent, and who have not allowed time to elapse till they are barred. It was held by an eminent judge in a Massachusetts case in regard to the retainer by an administrator of a debt due to him by the deceased, but barred by the statute of limi- tations, that the administrator was barred by the same statute of limitations as a third person would be, thus implying that the administrator could not waive it.^ Yet in the same State some earlier remarks obiter have recognized the right of the executor or administrator to waive the statute, proceeding on the authority of the case in Atkyn's Reports, above cited.^ In New York, it is intimated in a recent case that the execu- tor may not waive the general statute of limitations ; * but the current of authorities may be considered to be opposed to this decision. In Arkansas, however, the rule is that the statute of limitations cannot be waived .^ In regard to the special statute limiting the time within which suits may be brought against an executor or adminis- trator, the rule is general that the executor or administrator may not waive this statutory law and pay the debts, and if he 1 Norton v. Frecker, 1 Atk. 526; Kennedy's App., 4 Pa. St. 149; Pur- sel V. Pursel, 14 N. J. Eq. 526; Miller ». Dorsey, 9 Md. 317; Chambers V. Fennemore, 4 Harr. 368; Trimble v. Marshall, 66 Iowa, 233; Pollard ». Soears, 28 Ala. 484; Leigh v. Smith, 8 Ired. (N. C.) Eq. 442; Batson V. Murrell, 10 Humph. 301 ; Tunstall v. Pollard, 11 Leigh, 1 ; Hodgdon v. White, 11 N. H. 208. 2 Grinnell v. Baxter, 17 Pick. 385. 8 Scott V. Hancock, 13 Mass. 164 ; Emerson v. Thompson, 16 Mass. 431. * Kendrick, In re, 107 N. Y. 110. 6 Rogers v. Wilson, 13 Ark 507; Rector v. Conway, 20 Ark. 79. 348 LAW OP EXECUTOES AND ADMINISTRATORS. does he cannot be allowed in his accounts for the amount so paid ; ^ but in regard to claims of his own, the case is different, and he may be allowed for them in his account whenever he accounts, whether the debts were due to him from the de- ceased, or whether they arose from advances made or expenses incurred on account of the estate in the course of administra- tion. Such claims may be charged against the personal as- sets in his hands at any time before the settlement of the final account.^ § 544. Money advanced by Ezecutor or Administrator, —r-^ Among other items which may be allowed to an accountant is money advanced by him to the estate for the objects of ad- ministration, on account of lack of funds belonging to the es^ tate.^ The court of probate will investigate the circumstances of the loan so as to satisfy itself that there was no improper motive or unfair advantage taken in making the advance, and if there was none, may allow the sums so advanced, and also interest from the time when the loan was made until the time when the executor or administrator repaid himself from the funds of the estate, or might and ought to have done so.* The money may be advanced for the ordinary purposes of administration, such as paying debts, etc., or it may be ad^ vanced for purposes which are rendered proper by the pro- visions of the will. Thus where the will directs the executor to whom real estate was devised in trust, to take down and rebuild any part of the buildings, to erect additional buildings, and to hire money for the purpose of bettering the trust estate, it was held proper for the executor to ad- ^ Ames V. Jackson, 115 Mass. 510; Dickenson u. Arms, 8 Pick. 394; Hodgdon ». White, 11 N. H. 208, 216 ; Stillman v. Young, 16 111. 318. * Ames ». Jackson, 115 Mass. 510; Munroe v. Holmes, 13 Allen, 109. 8 Munroe v. Holmes, 13 Allen, 109; Ames v. Jackson, 115 Mass. 510; Liddel v. MoVickar, 11 N. J. L. 48. * Liddel v. McVickar, 11 N. J. L. 48; Walker's Est., 3 Rawle, 243; Callaghan v. Hall, 1 Serg. & R. 241; Jennison v. Hapgood, 10 Pick. 78. Contra, Storer v. Storer, 9 Mass. 37. ADMINISTRATION ACCOUNTS. 349 vance his own money to the estate and charge it in his administration account.^ § 545. Commissions and Compensation. — The compensation of an executor or administrator is in most States regulated by statute. In England the executors or administrators received no compensation, because they were the parties entitled to the residue of the estate, and therefore amply compensated for the time and labor of administration.^ In the United States, how- ever, the office of executor or administraitor is imainly an ex- ecutive office merely, and he receives no advantage from it, and he is therefore allowed by statute compensation for his time and labor. In some States the statutes merely provide that he shall have such compensation as the court shall deeia reasonable and just.^ In Massachusetts it has been in some courts tiie practice to allow a commission of five per cent on all income collected by the executoT or administrator, and also a commission of two and one-half per cent on all the real or personal property sold by him, and on the appraised value of the Test Of the corpus of the estate ; but if the estate exceeds one million dollars only one per cent is allowed on the excess. In other States the courts fix by percentage or other means an absolute limit to the amount of the conipensaition ; ior example, in Vermont, two dollars for each day's attendance upon the business of their appointment, and extra compensation in cases of unusual diffi- culty or responsibility, to be settled by the court.* In Maine, the executor or administrator may have a commission limited 1 Watts V. Howard, 7 Met. 478. 2 Robinson v. Pett, 3 P. Wms. 251 ; Brocksop v. Barnes, 5 Madd. 90 ; Gaines v. Kotoli, 64 Md. 521. 8 Mass. Pub. Stfe. c. 144, § 7; K. 1. Pub. Sts. o. IDO, § 8; Wendell ». French, 19 N. H. 205, 210; Cantfleld v. Bostwick, 21 Conn. 555; Shunk's App., 2 Pa. St. 307; Harris v. Martin, 9 Ala. 899 ; Ind. Kev. Sts. §2396; 'Kans. Comp. Laws, o. 37, | 162. * Vt. Rev. Laws, § 4534. 350 LAW OP EXECUTORS AND ADMINISTEATORS. by the discretion of the probate judge, up to five per cent of the amount of the personal property.^ In New York, he is al- lowed five per cent on receiving and paying out money not exceeding one thousand dollars ; over that and not amounting to ten thousand dollars, two and one-half per cent ; over that, one dollar per hundred.^ In New Jersey, he is to be allowed compensation in proportion to his actual labor and respon- sibility rather than to the size of the estate, and the compen- sation is limited by the following rates : On money coming into his hands not exceeding one thousand dollars, not more than seven per cent ; above one thousand dollars, and not exceeding five thousand dollars, four per cent on the excess over one thousand dollars ; above five thousand, and not exceeding ten thousand dollars, three per cent on the excess over five thou- sand dollars ; above ten thousand, two per cent on the excess over ten thousand dollars ; but if the receipts exceed fifty thousand dollars, the compensation shall be not more than five per cent on the whole receipts, and shall be on the basis of actual services rendered.® In Ohio he is allowed six per cent on the first thousand dollars ; four on the excess up to five thousand dollars ; and for all above that two per cent, with a provision for extraordinary services.* In Michigan he is allowed five per cent on the first thousand dollars ; on the excess above that, up to five thousand dollars, he is allowed two and one half per cent ; and on all over five thousand dol- lars, he is allowed one per cent.^ In Iowa he is allowed a commission upon the personal estate sold or distributed by him, or on the proceeds of the real estate sold for the payment of debts. This commission is in full payment of all ordinary expenses, and is five per cent for the first thousand dollars ; for the surplus between one and five thousand dollars, at the 1 Me. Rev. Sts. o. 63, § 32. 2 3 N. Y. Kev. Sts. p. 2303, § 58. « Rev., Orphans' Court, § 110. * Rev. Sts. § 6188. « Mich. Ann. Sts. § 5959. ADMINISTRATION ACCOUNTS. 351 rate of two and one half per cent ; for the amount over five thousand dollars, at the rate of one per cent.^ In Maryland he is allowed commissions at the discretion of the court, not under two per cent nor over ten per cent on the first twenty thousand dollars of the estate, and on the balance of the estate not more than two per cent.^ In California his commissions are as follows : For the first thousand dollars, at the rate of seven per cent ; for all above that sum and not exceeding ten thousand dollars at the rate of five per cent ; for all above ten thousand dollars and not exceeding twenty thousand dollars, at the rate of four per cent ; for all above twenty thousand dollars and not exceeding fifty thousand dollars, at the rate of three per cent ; for all above fifty thou- sand dollars and not exceeding one hundred thousand dol- lars, at the rate of two per • cent ; and for all above one hundred thousand dollars, at the rate of one per cent. The same commission is allowed to administrators. In all cases further allowance for extraordinary services may be made, but not to exceed one half the ordinary commissions. When the property is distributable in kind, and there is no labor but the custody and distribution, the commissions on the estate above twenty thousand dollars in value are to be computed at half rates. All contracts between an executor or administrator and an heir, legatee, or devisee, for a higher compensation than is allowed by statute, are void.^ In Alabama an execu- tor or administrator is allowed a commission on the receipts and disbursements which may seem a fair one to the probate court, and this must not exceed two and one half per cent on the receipts, and the same sum on the disbursements. And upon the appraised value of all personal property and the amount of money and solvent notes distributed by them, they are allowed the same amount as upon disbursements.* In Colorado he is allowed compensation not exceeding six per 1 Iowa Code, § 2494. = Sts. 1884, c. 470. » Cal. Code, Civ. Proc. § 1618. * Ala. Code, §§ 2151, 2152. 352 LAW OP EXECUTORS AND ADMINISTEAT0R3. cent on iJhe whole personal estate, and not exceeding three per cent on all sums arising from the sale and letting of lands.^ In Florida he is allowied a fair and just compensa- tion, and also a commission of not more than six per cent on the money arising from the sale of the personal property or la,nds.2 In Georgia he is allowed a commission of two and one half per cent on all sums received by him, except moneys loaned by him to the estate and repaid to him, and a like com- mission on all sums paid out by him, either to debts, legacies, or distributees. If he has received interest on money loaned belonging to the estate, and turns in the interest as part of the estate, he receives a commission of ten per cent upon it. He receives no commission upon debts, legacies, or distributive shares paid to himself ; and if there are more executors or administrators than one, they share the commissions accord- ing to their respective services. No commission is allowed for delivering property in kind ; but a compensation may be allowed in the discretion of the ordinary for such services, not exceeding three per cent of the appraised value.^ In Ken- tucky he is allowed not more than five per cent on the first thousand dollars ; four per cent on the second thousand dol- lars ; three per ceiit on the third.; and two per cent on the remainder.* In Mississippi he is allowed not less than one iper cent, nor more than seven on the whole amount adminis- tered.^ § 546. Compensation fixed by Will ; Forfeiture of Commis- sions. — If any provision is made in the will for the compensa- tion of an executor, he must take that provision, since acting under the will he must afiirm its provisions ; ^ but a bequest to 1 Col. Gen. Sts. § 3630. = ^ja, X)ig., c. 2, § 78. = Ga. Code, §§ 2589-2592. * Ky. Gen. Sts. c. 39, § 52. 6 Miss. Rev. Code, § 2072. « N. J. Rev., Orphans' Court, § 111; Vt. Rev. Laws, § 2104; Manning V. American Board of Foreign Missions, 8 Met. 566; Charlestown Col- lege V. Wellington, 13 Rich. Eq. 195. Contra, Hardy v. Collins, 60 Md. 229. ADMINISTRATION ACCOUNTS. 353 the executor does not necessarily mean that the executor shall not also have remuneration for his services, in the absence of express words to that effect.^ In some States, also, he is given by statute a right to renounce the provision of the will and take his statutory commissions.^ The executor or adminis- trator may forfeit his right to commissions by misconduct in office.* The right to commissions is not founded in con- tract, and the rate may be varied from time to time by the legislature, and the new rate will apply to estates in the course of administration at the time the change is made, as well as to those in which the grant of letters is made subse- quent to the passage of the act changing the rate ; but if an fljCCount has been settled allowing the executor or adminis- trator commissions at a certain rate, this allowance cannot be affected by any change in rate by act of legislature subsequent to the allowance of the commissions.* Questions arise as to the division of commissions among several executors or administrators, and there seems, in the absence of statutory directions upon this subject, to be no settled rule. The divi- sion should be made in such a way as to give to each a reason- able compensation for his services ; and to attain this object it is generally presumed that, if nothing in the case leads to a different conclusion, each of the executors or administrators is entitled to an equal share of the commissions with all the others ; ^ but if the circumstances show that one of the exec- utors or administrators did more work than the other, or that one has forfeited his right to commissions, or any other equit- able considerations affect the distribution, it will be made in accordance with the equity of the case.* 1 Mason, /n re, 98 N. Y. 527; 'Marshall, 7« re, 3 Dem. 173. 2 Vt. Rev. Laws, § 2104. s Brooks V. Jackson, 125 Mass. 311; Grant v. Reese, 94 N. C. 720; Frost V. Denman, 41 N. J. Eq. 47; Eppinger ». Canepa, 20 Fla. 262. * Gaines v. Rotch, 64 Md. 520. 6 Pomeroy v. Mills, 40 N. J. Eq. 517. * Harris, Zn re, 4 Dem. 463^ 23 354 LAW OP EXECUTORS AND ADMINISTRATORS. § 547. Failure to render Account, Penalty for. — The failure of an executor or administrator to account at the times when he is required by law, is always at least a technical breach of his bond ; and if he fails to account after being duly cited therefor, his bond may be put in suit.^ In some States other penalties are inflicted. For example, in Ehode Island he is held accountable for the full value of the personal estate, with interest, and shall have no compensation for his services.^ In New Jersey he is to be removed, must pay the costs of the citation, and loses his commissions and compensation.^ In Ohio and Illinois and Indiana he may be removed, and com- mitted on an attachment for contempt.* In Iowa any ex- ecutor failing to account when required to do so by the court, forfeits one hundred dollars to be recovered in a civil action on his bond for the benefit of the estate by any one interested in the estate.^ In Maryland if the executor or administrator fails to account when duly cited, his letters may be revoked and administration granted at the discretion of the court ; and the administrator to whom letters may be granted is entitled to put the delinquent's bond in suit, and recover such damages thereon as the jury shall find, and in addition six per cent on the amount of the inventory from the time when the account should have been filed to the time when the verdict is given.^ In California the executor or administrator may be attached as for a contempt, or his letters may be revoked.^ In Ala- bama the court may commit him, or may state the account from materials on file or whatever information is accessible, charging him with such assets as have come to his hands.^ In Florida an executor or administrator who neglects to render 1 Mass. Pub. Sts. c. 144, § 8; Vt. Rev. Laws, § 2095; Mich. Ann. Sts. § 5960; Miss. Rev. Code, § 2067; supra, § 321. 2 R. I. Pub. Sts. c. 190, § 3. 8 Rev., Orphans' Court, § 99. « Ohio Rev. Sts. § 6178; IlL Ann. Sts. 1[ 114; Ind. Rev. Sts. § 2393. 8 Iowa Rev. Code, § 2482. « Md. Rev. Code, art. 50, § 212. ' Cal. Code, Civ. Proo. § 1627. 8 Ala. Code, § 2155. ADMINISTRATION ACCOUNTS. 355 his account within the time limited by law, forfeits his com- missions.^ And the same is true in Georgia, with the limita- tion that the forfeiture applies only to the year covered by the account of which no return is made, and the forfeiture may be remitted by the Ordinary for cause shown.^ In Kansas an executor or administrator, in such case, is liable to at- tachment and removal." In Mississippi he is liable to re- moval and attachment for contempt, in addition to suit on his bond.* The failure to file an account, so far as it is a breach of a probate bond, is waived and cured by the allowance of the account, upon the certificate of all interested that it is correct, and request by them that it be allowed.^ § 548. Hearing on Account ; Who may take Part. — The rendering of an account by an executor or administrator must always be preceded by sufficient notice to the next of kin, legatees, and others interested in the estate, in whatever man- ner is provided by statute or by the rules of court.® At the time and place notified the account is rendered, and a hearing is had, and objections, if any, are made to its correctness. In the hearings on accounts, as in all other probate proceedings, the rule obtains that only those who are interested in the estate pecuniarily can take part in the accounting, either as to procuring a citation to account or intervening at the hear- ing, or in any other way. Among those who are so pecuni- arily interested are creditors, legatees, distributees, the widow or surviving husband, and former and succeeding administra- 1 Ma. Dig., c. 2, § 75. " Ga. Code, § 2596. ' Kans. Comp. Laws, c. 37, § 149. < Miss. Rev. Code, §§ 2067, 2068. 5 Loring v. Kendall, 1 Gray, 305. 6 Conn. Gen. Sts. § 616; Vt. Rev. Laws, § 2106; Me. Rev. Sts. c. 64, § 55; N. J. Rev., Orphans' Court, §§ 102, 103; Pa. Bright. Purd. Dig., Deced. Est., §§ 205, 206; Ind. Rev. Sts. § 2890; Mich. Ann, Sts. § 5963; Cal. Code, Civ. Proc. §§ 1633, 1634; Ala. Code, § 2138; Ga. Code, §2598; Kans. Comp. Laws, §§ 37, 150. 356 LAW OP EXECUTOES AND ADMINISTRATORS. tors or executors.^ The interests of persons who are unborn, unascertained, or legally incompetent to act, are in some States protected by the appointment of guardians ad litem.^ On the same principle, an appeal from the allowance of an executor's or administrator's account can only be taken by some one whose pecuniary interest is directly affected by the decree, — one whose right of property may be established or divested by the decree. An administrator is so interested in the account of a preceding executor or administrator, and may appeal from the allowance of his account.^ Moreover, the same rule holds good in regard to citations to account as in other proceedings in the probate courts to which reference has already been made,* — that is, that it is only necessary that the party who attempts to compel the ad- ministrator to account should make out a possibility of inter- est in the estate, and not a complete and perfect title ; for the probate court will not try titles to the estate, especially upon the preliminary question of whether the petitioner has sufficient interest to have a standing in court.^ Thus, if a legatee cites the executor to account, and the executor tries to escape from this citation by proving a release from the legatee of all his interest in the estate, yet if the legatee attacks this release as void he will be entitled to compel the executor to account.® § 549. Effect of Allowance of Account. — The effect of the allowance of the account is various in different States, and a distinction is drawn between final and intermediate acpounts in favor of tlie conclusiveness of the final accounts. It may 1 Peters' Est., 1 Phila. 581; Melizet's App., 17 Pa. St. 449; Albertson's Est., 1 W. N. C. 188; Hartman's App., 90 Pa. St. 203; Laoey's Est., 35 Leg. Int. 274; Manigle's Est., 11 Phila. 39; Wiggin it. Swett, 6 Met. 194, 197; Soutter, in re, 105 N. Y. 514. 2 Mass. Pub. Sts. c. 144, § 13. 8 Wiggin V. Swett, 6 Met. 194, 197. 4 Supra, §§ 257, 305. s Disston's Est., 14 Phila. 310. 6 Reilley v. Duffy, 4 Dem. 366. ADMINISTRATION ACCOUNTS. 357 be said to be the general rule that, if an account is allowed after a duly notified hearing, the effect of this allowance is the same as a decree of the judge of probate, and, unless it is otherwise provided by statute, the settlement bars any one in- terested in the estate from afterwards contesting the account, except for fraud, or manifest error, or on appeal as provided by law.^ In some States the statutes define precisely what the effect of such an allowance shall be. Thus in New York the effect of an allowance of an account of an executor or administrator is defined by statute to be conclusive upon all those persons who were duly cited or appeared, as to the following facts : 1. That the items allowed for money paid to creditors, legatees, and next of kin, or for necessary expenses, or for his services, are correct. 2. That the accounting party has been charged with all the interest upon money received by him and embraced in the account, with which he is legally chargeable. 3. That the money charged to the accountant as collected is all that was collectible at that time on the debts stated in the ac- count. 4. That the allowances made for decrease in the value of the property or charges for the increase were correctly made.2 In California the allowance of an account is conclu- sive, except upon persons under some disability, who may impeach the account or proceed against the executor or ad- ministrator at any time before final distribution of the estate.^ In Mississippi the settlement may be opened at any time within two years after final settlement, and afterwards by minors or persons of unsound mind within two years from the removal of their disability* In Massachusetts, Ohio, and Kansas it is provided that, if an account is settled in the 1 R. I. Pub. Sts. c. 190, § 10; Blake v. Ward, 137 Mass. 94; Parcher V. Bussell, 11 Cush. 107; N.J. Rev., Orphans' Court, § 108; Shindel's App., 57 Pa. St. 43; McLellan's App., 76 Pa. St. 231; Ind. Rev. Sts. §§ 2402, 2403. a Code, Civ. Proc. § 2742. 8 Cal. Code, Civ. Proc. § 1637. * Miss Rev. Code, § 2075. 358 LAW OP EXECUTORS AND ADMINISTRATORS. absence of any person adversely interested, and without notice to him, the account may be opened on his application at any time within six months after the settlement, and all former accounts of the same accountant may thereupon be opened so far as to correct a mistake therein, except as to matters al- ready disputed and settled by the court, unless the court grants leave.^ And it is also provided by statute that when an executor or administrator has paid over the estate in ac- cordance with a decree of the court, and presents an account of the same verified by oath, and proves it to satisfaction of the court, this account is allowed as his final discharge, and is then recorded. This discharges the executor or adminis- trator from all liability under the decree, unless the account is impeached for fraud or manifest error.^ It may also be stated as a general principle that, whatever latitude may be allowed in correcting the mistakes of ac- counts, the court will never allow any item which has been specially examined at a hearing duly notified to be re-exam- ined in another proceeding, even in settling a later account of the same estate ; for after such special examination the decree of allowance of the account is a bar.^ But as to items which have not been so specially subjected to the scrutiny of the court, the courts, unless otherwise directed by statutory pro- vision, are inclined to allow a revision for the purpose of correcting a manifest error, even in final accounts.* § 550. Accounting in Equity. — Owing to the inability of legatees and distributees to sue for their respective shares and legacies at law, there existed in England (and in some of the 1 Mass. Pub. Sts. c. 144, § 9; Ohio Rev. Sts. § 6187;.Kans. Comp. Laws, 0. 37, § 158. 2 Mass. Pub. Sts. c. 144, § 12; Ohio Rev. Sts. § 6190. 8 Dey V. Codman, 39 N. J. Eq. 268; Reynolds v. Jackson, 36 N. J. Eq. 515; Jackson v. Reynolds, 89 N. J. Eq. 313; Mass. Pub. Sts. c. 144, § 9; Saxton !'. Chamberlain, 6 Pick. 422; Field v. Hitchcock, 14 Pick. 405. * Blake v. Pegram, 109 Mass. 541; Dey v. Codman, 39 N. J. Eq. 268; Jackson v. Reynolds, 39 N. J. Eq. 313. ADMINISTRATION ACCOUNTS. 359 United States this practice is followed) a jurisdiction in equity in favor of these parties, and a bill in equity would lie, by a legatee or distributee, to compel an accounting of the estate. When such a bill is brought, the court takes jurisdiction of the whole administration, and requires the executor or ad- ministrator to account before it. In such a case he is not obliged to account in the probate court. This jurisdiction in equity only exists in those States where an action at law does not exist in favor of the legatees or distributees before the assent of the executor or administrator. In most of the United States, the accounting must be in all cases in the probate court.^ If accounting has already been had in the probate court, these accounts will be revised in the court of equity.^ 1 State V. DiUey, 64 Md. 318; Haddow v. Lundy, 59 N. Y. 320; Wager V. Wager, 89 N. Y. 161. 2 SeweU V. SlinglufE, 62 Md. 594. 360 LAW OF BXECUTOES AND ADMINISTEAT0E3. CHAPTER XX. FOREIGN AND INTERSTATE ADMINISTRATION. j 551. Origin of Foreign and Interstate Administration. 652. "Validity of Foreign Wills of Per- sonal Property. 553. Rules as to Domicil. 554. Effect of Change of Domicil. 555. Validity of Foreign Wills dis- posing of Real Estate. 556. Statutes as to Foreign Wills. 557. Statutes as to Foreign Probate. 558. EflFeot of Foreign Probate. 559. Interpretation of Wills. 560. Foreign Intestate Estates. 561. Administration in several States. 562. Principal and Ancillary Adinin- istration. 563. Division of Assets in the States. 564. Grant of Ancillary Administra- tion. 565. Right to Sue in other States. 566. Statute as to such Suits. 567. Suits by Executor or Adminis- trator in his Bight. § 568. Pendency of Suits in two States, how far a Bar. 569. Payments to and Receipts by Foreign Administrators. 570. Liability for Assets brought into Foreign State. 671. Power to indorse Notes or assign 572, Actions for Negligent Killing, Limitations. In what State Suit to be brought. Payment of Debts governed by Law of Foru/m. Insolvency, How determined. 576. Statutes as to Payment of Debts. 577. Distribution among Legatees and Distributees. 578. Statutes regarding Distribution of Foreign Estates. Effect of Settlement of Accounts in other States. Laws of other States to be Proved. 573. 574, 575, 579. 580. § 551. Origin of Interstate and Foreign Administrations. — It has already been necessary to notice incidentally the case of estates which are found at the death of the decedent in vari- ous States or countries ; but the subject may now be properly examined more at length. It is evident that the grant of let- ters testamentary or of administration by the probate court is valid de jure only within the limits of the State or country in which the court granting the letters exists ; and any title, either of executors or administrators, derived from that grant will be valid only within the same jurisdiction.^ If, therefore, the estate is situated in various States or countries, there is need of various administrations in the different States or countries •1 Story, Confl. of Laws, § 512; Smith v. Guild, 34 Me. 443. FOEEIGN AND INTERSTATE ADMINISTRATION. 361 wherein any part of the estate is found ; and this fact raises the question, What laws are to govern these various admin- istrations ? This subject will be considered in three divisions : 1. As to wills. 2. As to intestate estates. 3. As to the course of administration of both testate and intestate estates. § 552. Validity of Foreign "Wills of Personal Property. — The main question in regard to foreign wills, when they come in question in the course of administration in a State different from that in which the testator was domiciled at the time of his death, is how far they are valid. At common law and in most countries, the question of the validity of a will of per- sonal property, so far as concerns its execution and capacity of testator to make, depends upon its validity in the country or State in which the testator was domiciled at the time of his death. If the will was valid, either in execution or in re- gard to any special bequests, in the country in which the tes- tator was domiciled, then it is valid in any other country or State.^ This rule is merely an application of the general prin- ciple that movable property follows the person of its owner, and is governed by the laws of the place where he has his domicil. An apparent exception to this rule is found in the rule, that where a power of appointment as to personal prop- erty is given to be exercised by will, and the power is exer- cised by a will executed in a manner and form which is valid in the State where the personal property is situated, but not at the domicil of the testator, tliis will is considered to be a good execution of the power.'^ It is to be noticed, however, that the question here is rather as to the execution of a power, in regard to which the courts are strict in holding that it 1 Story, Confl. of Laws, § 465; Flannery's Will, 24 Pa. St. 502 ; Carey's App., 75 Pa. St. 201; Pretto's Will, 4 Phila. 380; Thomason's Est., 37 Leg. Int. 290; Knox v. Jones, 47 N. Y. 396; Wood v. Wood, 5 Paige, 596; Despard v. Churchill, 53 N. Y. 199; Parsons v. Lymaa, 20 N. Y. 103; De Sobry v De Laistre, 2 H. & J. 191. 2 Story, Confl. of Laws, § 473 a; Bingham's Est., 1 Leg. Gaz. 31; Bingham's App., 64 Pa. St. 345. 362 tAW OP EXECUTORS AND ADMINISTRATORS. must be correct in every particular according to the law of the place where the propertj' lies. In a case in Massachusetts a resident of Massachusetts died, giving property to trustees resident in Massachusetts to hold for the benefit of his daugh- ter for her life, and after her death to convey it to whomever she should appoint by any deed or writing by her signed in the presence of three witnesses, or by her will, or by any writing purporting to be her last will, signed in the presence of a like number of witnesses. She married a resident of Baltimore, and resided there till her death. She left a will executed in Baltimore, signed in the presence of three wit- nesses, in which she devised and bequeathed all the real and personal estate to which she should be entitled in law or equity at the time of her decease unto her husband, his heirs, and assigns absolutely. This will was by the laws of Mary- land an insufficient execution of the power, since in that State the execution of the power must refer in some way to the power or the specific subject of it, but was a sufficient exe- cution in Massachusetts, where a general devise or bequest is considered to include a power of appointment, unless a differ- ent intention is expressed. The court held that as far as the formal execution of the power was concerned it was good if it was valid by the law of either State, and that as to the question of construction involved in the power, that should be decided by the law of Massachusetts ; since the property in question was really the property of her father ; that he resided in the State, and the property was situated in the State, being in the hands of trustees resident in Massachusetts ; and for all these reasons the law of Massachusetts should govern the case.^ It seems that, as far as the formal execution of such a power is concerned, it will be good if it is valid by the law of the domicil of the donor or donee of the power.^ 1 Sewall V. Wilmer, 132 Mass. 131. ^ D'Huart v. Harkness, 34 Beav. 324; Tatnall v. Hankey, 2 Moore, P. C. 342. FOREIGN AND INTERSTATE ADMINISTRATION. 36S § 553. Rules as to Domicii. — The rules governing the questions of doinicil have been before somewhat considered in connection with the subject of jurisdiction of the probate courts in case of estates of non-residents.^ It may be well, however, to recapitulate the leading principles governing the subject. Every person has a domicii somewhere in legal contemplation, and can have but one, which is presumably at the place where he was born ; and this domicii of origin is presumed to continue until a change of domicii is proved.^ A change of domicii in order to affect the right of distribu- tion must not only be a change of actual residence, but such a change combined with an intention to change the domicii, — to abandon the former domicii and acquire a new one. A change of actual residence, although it is a strong evidence, especially if it is long continued, of an intention to change domicii, is not of itself sufficient to effect such a change.^ § 554. Effect of Change of Domicii. — Since the validity of a will of personal property depends upon its validity at the domicii of the testator, and not at the place where the will was originally executed, it results that if the testator changes his domicii after making the will into a country where the will is invalid, and dies there, the will is invalid everywhere.* Thus when one domiciled in South Carolina made a will which was valid there, and then removed to New York, where the will was not properly executed, and died, it was held that he died intestate.^ But where a citizen of New York went to Nice, and sojourn- 1 Supra, §§ 39-i2. ^ Somerville v. Somerville, 5 Ves. 750, 786, 787; Abington v. North Biidgewater, 23 Pick. 170; Graham v. Public Adm'r, 4 Brad. 128; De Bonneval v. De Bonneval, 1 Curtis, 856. 8 Moorhouse v. Lord, 10 H. of L. 283, 292; Hodgson v. De Beau- chesne, 12 Moore, P. C. Cas. 283, 328; Collier,!;. Kivaz, 2 Curt. 857; Whicher ». Hume, 7 H. of L. 139. * Story, Coiifl. of Laws, § 473. « Moultrie v. Hunt, 23 N. Y. 396. 364 LAW OP EXECUTOES AND ADMINISTEATOES. iug there without intending to remain, but merely for the benefit of her health, executed a will valid according to the laws of New York, but not according to the laws of Nice, and the testator afterwards changed her intention of returning home, believing that her health would not permit it, but with- out intending to change her domicil, the court held that the will was valid, her domicil remaining in New York ; but it was admitted that if her domicil had been changed to Nice after the execution of the will, it would have been void.^ § 556. Validity of Foreign Wills disposing of Real Estate. — The validity of wills of real estate, on the other hand, as to capacity of testator, form, execution, and so forth, depends upon and is governed by the law of the place where the land or real estate is situated. This, again, is merely an applica- tion of the general principle, that immovable property is gov- erned by the law of the country or State in which it lies.^ Thus a devise of real estate in New York by a testator resi- dent in Massachusetts, which is valid by the law of that State, but void by the law of New York as being an illegal restraint of alienation, will not be enforced in New York ; but the estate will descend to the heirs-at-law.^ § 556. Statutory Provisions as to Foreign Wills. — The foregoing principles are those adopted by general consent in all countries and States as part of the pi'ivate international law. In many of the United States there are statutes enacted which confirm the general principles. Thus in several States there are statutes enacted by which it is provided that a will made out of the Commonwealth, and which is valid according to the laws of the State or country where it was made, may be proved and allowed in the former States, and 1 Dupuy V. Wurtz, 53 N. T. 560. 2 Story, Confl. of Laws, §474; Livermorer. Haven, 23 Pick. 118; Flan- nery's Will, 24 Pa. St. 502 ; Carey's App. , 75 Pa. St. 201 ; Thomason's Est., 37 Leg. Int. 290. 8 Hobson V. Hale, 95 N. Y. 610. FOEEIGN AND INTERSTATE ADMINISTRATION. 365 shall thereupon have the same effect that it would have had if executed according to the laws of the State where it is proved.^ This statute came under consideration in a case in which a nuncupative will was made in the State of Missis- sippi, and was offered for probate in Massachusetts. The testator was a resident of Massachusetts, who had gone to the State of Mississippi temporarily for his health, and had died wliile there. The decision was that the statute covered all wills which were valid by the laws of the State where they were made, including nuncupative wills.^ These statutes do not, it is apprehended, change the rule that a will affecting real estate must be valid according to the laws of the State where the land lies, but as to the validity of the devises only provide that such a will may be considered duly executed. It is still necessary that its devises and provisions should be valid according to the law of the State where the land lies, or they will be of no force. § 557. statutory Provisions as to Foreign Probate. — In most States statutes are enacted which allow any will which has been probated in a foreign country to be recorded and allowed as a valid will. These statutes supplement the pre- vious one, since the will must be valid according to the laws of the foreign country or State in order to gain probate there, and these statutes simplify the mode of proof by en- acting that the probate of the will shall be proof of its validity in the foreign country .^ In Massachusetts the statute pro- 1 Mass. Pub. Sts. c. 127, § 5 ; Me. Rev. Sts. c. 64, § 12; Vt. Rev. Laws, § 2059; Conn. Gen. Sts. § 538; Kams. Comp. Laws, o. 117, § 25. 2 Slocomb V. Slocorab, 13 Allen, 40. » Me. Rev. Sts. c. 64, § 13; Vt. Rev. Laws, § 2058; N. J. Rev., Or- phans' Court, §§ 23, 24, 25, 26; Md. Rev. Code, art. 49, § 31; Conn. Gen. Sts. § 550; Ala. Code, § 1985; Ga. Code, § 2434 (a) ; N. H. Gen. Laws, c. 194, § 13; Kans. Comp. Laws, c. 117, § 24; Ala. Code, §§ 1985, 1986; Ky. Gen. Sts. c. 113, § 30; Miss. Rev. Code, § 1976; S. C. Gen. Sts. § 1875. And the same is true in Florida and Rhode Island, only when he will is validly executed by the laws of those States. R. I. Pub. Sts. 0. 183, §§ 6-10; Fla. Dig., p. 987, § 8. 366 LAW OP EXECUTORS AND ADMINISTRATORS. vides that any person interested in a will proved and allowed in any other of the United States or in a foreign country ac- cording to the laws of such State or country, or any person in- terested in a will which is by the law of the place where it was made valid without probate, may produce to the probate court in any country where there is any estate, real or personal, on which such will may operate, a copy of the will and probate, or if it is valid without probate, a duly authenticated copy of the will or the public record of it, made by the officer who has the will in his custody ; and on such production the court will assign on notice a hearing ; and if at the hearing it ap- pears from the copies and such other evidence of the authen- ticity and execution of the will as may be presented that the instrument ought to be allowed in Massachusetts as the last will of the deceased, the court will order the copy to be filed and recorded, and the will will then have the same force as if it had been originally proved and allowed in the probate court in the usual manner. And after such allowance the court will grant letters testamentary, or of administration with the will annexed, and will proceed with the settlement of the estate found in Massachusetts.^ § 558. Effect of Foreign Probate. — The efFect of probate of a will in one country is conclusive of the validity of the will in all other countries. The judgment of a court of pro- bate allowing the proof of a will is to some extent like a pro- ceeding in rem, — binding upon the rights of all persons interested in the property named, although they are not named as parties in the case. The duty of the probate court in Massachusetts, therefore, under the foregoing statute, when a will probated in a foreign country is offered in Massachusetts, is very much limited. It consists in deciding whether the record presented is duly authenticated, whether the court in which the will purports to have been allowed had jurisdiction, 1 Pub. Sts. 0. 127, §§ 15, 16, 17; Shannon o. Shannon, 111 Mass. 334. FOREIGN AND INTERSTATE ADMINISTRATION. 367 and whether there is any estate, real or personal, in the county on which the will may operate, and perhaps as to actual fraud in obtaining probate of the will. But as to all facts neces- sary to the establishment of a will, in whatever form the case is presented, and as to the regularity of the proceedings, and their conformity to the law of the country or State where they are had, the judgment itself must be conclusive, both by the Constitution of the United States, giving such effect to the judgments of the different States, and by the common law.^ Among the questions which are settled by the foreign probate are the capacity and sanity of the testator, including the power of a married woman to make a will, the due execution of the . will, the competency of the witnesses, and the regularity of the proceedings.^ § 559. Interpretation of 'Wiila. — A kindred topic is the in- terpretation of wills ; and here the general rule, both as to wills of personalty and realty, seems to be that a will is to be interpreted according to the laws and customs of the country or State of the domicil of the testator, since he is supposed to to have been conversant with those laws and customs and language.^ § 560. Foreign Intestate Estates. — In regard to the case of intestate estates existing in various countries or States, the rule at common law and as adopted in most countries is that the distribution of personal property is governed in all cases by the law of the deceased owner's residence ; and the question who is entitled to distribution is settled by that law, regard- less of where the property is situated, or in what court or State the question of distribution arises.* The succession to 1 Crippen V. Dexter, 13 Gray, 333. 2 Crippen v. Dexter, 13 Gray, 333; Dublin v. Chadbourn, 16 Mass. 438; Parker v. Parker, 11 Cush. 519. ' Story, Confl. of Laws, § 479 a,f, h; Dawes v. Boylston, 9 Mass. 337. * Story, Confl. of Laws, § 480 a ; Lawrence v. Kitteridge, 21 Conn. 582; Holcorab V. Phelps, 16 Conn. 133; Fay ». Haven, 3 Met. 109; Dawes v. Boylston, 9 Mass. 337; Varnum v. Camp, 13 N. J. L. 332; Normand v. 868 LAW OP EXECUTORS AWD ADMINISTRATORS. real estate, on the other hand, is decided by the law of the place where the real estate is situated.* This, again, is onlj an application of the principle above referred to ; and this further remark should be made, that the question whether or not the deceased was intestate is governed by the law of his domicil as to wills of personalty, and by the law of the place where the land lies in wills of realty.^ § 561. Course of Administration in several States. — The questions arising as to the administration of an estate in vari- ous States are often complicated and perplexing. This sub- ject will comprise the right of an executor or administrator to take out ancillary administration in other States ; his right to collect the estate in other States, with or without ancillary , administration ; his right to pay debts in other States, includ- ing cases of insolvency ; his right to distribute in other States, and his liability for assets in other States. § 562. Principal and Ancillary Administration. — The ad- ministration which is taken out at the place of domicil of the deceased is the principal administration ; and any other ad- ministration is ancillary, whether prior in point of time or not.* The administrations are totally independent of each other, there being no privity between two administrators ap- pointed in different States, and the authority of each being complete and exclusive in his own State ; * and ancillary ad- ministration may be granted, although there is never any principal administration.^ The administrator in one State, Grognard, 17 N. J. Eq. 428 ; Johnson v. Copeland, 35 Ala. 521 ; Goodman V. Winter, 64 Ala. 410; Ala. Code, § 2153; Dixon v. Kamsay, 3 Cranoh, 319. 1 Story, Confl. of Laws, §§ 483, 484; Grimbell v. Patton, 70 Ala. 626. 2 Supra, §§ 552, 555. ' Story, Confl. of Laws, § 513; McNichol u. Eaton, 77 Me. 249; Law- rence V. Kitteridge, 21 Conn. 583; Merrill v. New Eng. Ins. Co, 103 Mass. 248; Fay v. Haven, 3 Met. 109; Stevens v. Gaylord, 11 Mass. 256. * Ela V. Edwards, 13 Allen, 48; Merrill v. New Eng. Ins. Co., 103 Mass. 249; Banta v. Moore, 2 McCart. 97; Watt's App., 31 Leg. Int. 182. « Bowdoin v. Holland, 10 Cush. 21. FOREIGN AND INTERSTATE ADMINISTRATION. 369 however, since he. represents the general creditors, heirs, and next of kin, has such an interest in the proceedings in another State that he is entitled to appear in them, and take such steps therein as may seem suitable and are legal, — for example, he may appeal from a decree of a judge of probate appointing an ancillary administrator.^ § 563. Division of Assets in various States. — The princi- pal and ancillary administrations are also distinct in regard to the assets which are to be administered in each. Each administrator is liable for and bound to inventory and ad- minister all the assets of the estate of which he has knowl- edge, except those which lie within the jurisdiction of some other administration.^ Therefore, if one who is appointed ad- ministrator in the State where the deceased resided takes an- cillary administration in another State, he is not liable in that second State to creditors residing there for assets in his prin- cipal administration.^ Nor is he liable to creditors, as will be seen in a later section, for assets in other States in which he has not taken administration, into which he may bring assets.* When there are assets in several States and administrators in all of them, the assets found in each State are administered in that State.^ Thus, if a creditor by simple contract debt lives and dies in one State, and the debtor lives in another, and ad- ministration is taken out in both States, the debt is assets where the debtor resides ; and a payment to the administrator appointed in that State will be a good discharge everywhere.® If there is only one administration, and that is at the domicil 1 Smith V. Sherman, 4 Cush. 408. 2 Hooker v. Olmstead, 6 Pick. 481; Fay v. Haven, 3 Met. 109; Dawes V. Boylston, 9 Mass. 337; Banta v. Moore, 2 McCart. 97. s Boston V. Boylston, 2 Mass. 384; Campbell v. Sheldon, 13 Pick. 23; Fay V. Haven, 3 Met. 109. * Infra, § 570. 6 Holcomb V. Phelps, 16 Conn. 133; Merrill v. New Eng. Ins. Co., 103 Mass. 248. ° Slocum V. Sanford, 2 Conn. 534.. 24 370 LAW OP EXECUTORS AND ADMINISTRATORS. of the testator or intestate, and there is property lying in sev- eral States, it is not improper for the executor or administra- tor to include this property in his inventory; and he then becomes bound to account for it in the course of his adminis- tration, since the property may be received by him without suit, and in such case he is in receipt of it as part of the assets of the estate ; but if there is another administration already covering those assets, as has been said, he should not inventory them, and is not bound to account for them.^ Whether assets belong in one State or in another depends upon the rules governing the locality of assets, which have already been somewhat examined in reference to deciding upon the jurisdiction of courts in case of estates of non-resi- dents.2 The rule may here be repeated, — that judgment- debts are assets in the State where the judgment is rendered,* specialty debts in the place where the specialty is ; * and sim- ple contract debts are assets for purposes of distribution where the debtor resides.^ But so far as bringing suit on the debt is concerned, the debtor may be sued in any administration into whicli he comes.® In a case in Pennsylvania, where there was administra- tion taken in Pennsylvania and New York by the same ad- ministrator, a resident of Pennsylvania, upon the estate of a resident of Pennsylvania, and there existed a mortgage on land in New Jersey, which came into the hands of the administrator in Pennsylvania, it was held that it was im- proper for him to carry it to the inventory of the New York property, but should have scheduled it among the Pennsyl- vania estate.^ 1 Noi-mand v. Grognard, 17 N. J. Eq. 427. ^ Supra, §§ 64:-66. 8 Strong V. White, 19 Conn. 248. * Slocum V. Sanford, 2 Conn. 534. ^ Slocum V. Sanford, supra; Hooker v. Olmstead, 6 Pick. 481. « Merrill v. New Eng. Ins. Co., 103 Mass. 248; Saunders v. Weston, 74 Me. 90. ' Baldwin's App., 81 Pa, St. 444. FOREIGN AND INTEBSTATE ADMINISTRATION. 371 § 564. Grant of Ancillary Administration. — It has already been said that the executor or administrator is not officially recognized outside the State or country in which he is ap- pointed. In most States, however, there is a provision of statute by which he is enabled to obtain appointment as ex- ecutor or administrator, upon production of his letters in the probate court of the proper county and giving bond, unless administration has already been granted in the State. This provision of statute has already been referred to in describing the probate of foreign wills.^ § 565. Right to Sue in various States. — It follows from what has been said of the nature of ancillary administrations, that the executor or administrator cannot sue or be sued in his of&cial capacity in any State except that in which he was appointed. If therefore he wishes to sue in other States than the one in which he is appointed, he must procure ancillary letters in the State in which he wishes to sue, unless some statute of the latter State enables him to sue therein.^ This dis- ability, arising from the lack of recognition of an appointment in one State by the courts of another, applies as well in equity as at law.3 Thus, where five executors were named in the will and three qualified in one State and two in another, and the latter brought a bill in equity in the State in which they were appointed, to which a plea in abatement was filed on account of the nonjoinder of the other three executors, the plea was adjudged bad, since only those who had obtained let- ters in the State in which suit was brought were recognized as executors.* The objection, being to the capacity of the plaintiff to sue, can only be taken advantage of by being pleaded ; if it is not pleaded and judgment is recovered, the judgment will be 1 Supra, § 557. 2 Story, Confl. of Laws, § 513; Holoomb ». Phelps, 16 Conn. 133; Merrill v. New Eng. Ins. Co., 103 Mass. 248; Hutchins v. State Bank, 12 Met. 421. 8 Cassidy v. Shimmin, 122 Mass. 412. * Gilman v. Gilmaa, 54 Me. 456. 372 LAW OP EXECUTOES AND ADMINISTRATORS. good.^ And it has been held that the defendant's ignorance of the fact that no letters have been taken out does not ex- cuse him from availing himself of this objection, since it would not be difficult for him by diligence to find out whether or not such letters had been taken out.^ And if the case is allowed to proceed to judgment without the interposition of this de- fence, and execution is issued on the judgment in favor of the foreign administrator and satisfied, for example, by levy on the land of the debtor, these proceedings will not be a bar to a subsequent suit on the same debt by an administrator duly appointed in the State, and the debtor is therefore in danger of being called upon to pay the same debt twice.^ § 566. statutory Provisions as to Suits by Foreign lizecutors or Administrators. — In some States, however, there are stat- utory provisions to the effect that a foreign executor or ad- ministrator may, by filing a copy of his letters in the clerk's office of the court in which he wishes to bring suit, be au- thorized to bring suit ; * and in other States statutes give him the right to sue absolutely as if he had been appointed in the State.^ In other States he must file his letters in some court of the county where he brings suit, and give bond to adminis- ter the amount recovered according to law.^ § 567. Suits by Executor or Administrator in his ovrn Right. — A distinction, however, should be observed to the effect that there are cases where the executor or administrator has a personal right to sue in regard to the estate ; and where this is so, he may bring suit in any other State in his personal right without procuring ancillary administration, unless some statutory bar exists.'' Thus, where one received a sum of 1 Dearborn v. Mathes, 128 Mass. 104. ^ James «. Morgan, 36 Conn. 351. 8 Pond M. Makepeace, 2 Met. 114. * Ga. Code, §§ 2614, 2615. 6 Ark. Dig. Sts. § 4937; Md. Rev. Code, art. 50, § 113; Fla. Dig., p. 97, § 73; Kans. Comp. Laws, § 2648. « N. J. Supp., Ex'rs, § 3; Miss. Rev. Code, § 2091. ' Story, Confl. of Laws, §§ 516, 517., FOREIGN AND INTERSTATE ADMINISTRATION. 873 money which was due to the estate of a deceased non-resident, as agent for the administrator of that estate, the money being a sum paid over from another estate, and the foreign ad- ministrator brought suit against his agent for the money, it was held that the money being due to the administrator him- self, because the cause of action arose since the death of the intestate, he could maintain the action without taking out letters in the State in which he brought suit.^ So, if the administra- tor holds a note payable to the deceased and endorsed by the latter in blank, the administrator can sue on it anywhere, since the title is in him ; but the suit would be subject to any defence that could have been made to a suit by the deceased.^ So, if the executors have obtained judgment and levied execution upon land, and being thus seized are disseized, they may bring action declaring on their own seisin, in any State ; ^ or if they have obtained judgment they may sue on the judgment without taking ancillary administration.* § 568. Pendency of Suits in two States. — When suits are brought by both administrators on the same cause of action, the question rises whether the pendency of one suit can be pleaded in bar of the other, and if so which one. In a case in Massachusetts the facts were that the principal administration was in Illinois, and ancillary administration had been taken out by another person in Massachusetts. Both administrators brought suit on a policy of insurance on the life of the de- ceased. The suit in Illinois was prior in time, and both suits covered the same subject-matter. In the suit in Massachu- setts the defendants pleaded the suit in Illinois in bar ; but the court said that if the Illinois administrator had had the com- plete title to the policy, that suit would have barred the bring- ing of suit in any other jurisdiction, but that as the policy had 1 Barrett v. Barrett, 8 Me. 346. 2 Barrett v. Barrett, 8 Me. 353. 8 Pierce v. Strickland, 26 Me. 279. * Talmage v. Chapel, 16 Mass. 71. 374 LAW OP EXECUTORS AND ADMINISTRATORS. been assigned in pledge for the repayment of money, and the pledgee was the administrator in Massachusetts, the suit in Massachusetts should prevail, and the plea in bar was over- ruled. This case, therefore, seems to indicate that if both suits are for the same subject-matter and no equities inter- fere, the prior suit pending may be pleaded in bar in a second suit.i § 569. Payment to and Receipt by Foreign Executor or Ad- ministrator a good Discharge. — Although an executor or ad- ministrator cannot sue in other States, yet a debtor of the estate who lives in a foreign State or country may lawfully pay a debt or deliver property to the executor or administra- tor in that country, and such payment or receipt will be a discharge of the debtor, in case an administrator should be appointed in the State of his residence and bring suit upon the debt. At least this may be said to be the prevailing mod- ern opinion, although it is not unanimously adopted.^ In some States this doubt has given rise to statutory provisions upon this subject. Thus in Alabama it is provided by statute that the foreign executor or administrator may receive property and give a good receipt therefor, if he has complied with the requirements which would be necessary in order to enable him to sue in that State, which are, filing a copy of his let- ters in the probate clerk's office of the county where the prop- erty is received, and giving bond to faithfully administer the property received.^ In Massachusetts an executor or adminis- trator duly appointed in another State or in a foreign country, and duly qualified and acting, who may be entitled to any personal property situated in this State, may, on petition to the probate court of any county, and after such notice to all persons interested as the court may order, be licensed to re- 1 Merrill v. New Eng. Ins. Co., 103 Mass. 245. 2 Selleck v. Rusio, 46 Conn. 372 ; Merrill v. New Eng. Ins. Co., 103 Mass. 248; Hutchinsti. State Bank, 12 Met. 248; Story, Confl. of Laws, § 518 a. 3 Ala. Code, §§ 2290, 2294. FOREIGN AND INTERSTATE ADMINISTRATION. 375 ceive or to sell by public or private sale on such terms and to such person or persons as he shall think fit, or otherwise to dispose of and to transfer and convey any personal estate in such county, or any shares in a corporation which has an es- tablished place of business in that county, Provided it appears to the court that there is no executor or administrator ap- pointed in this Commonwealtli who is authorized so to receive and dispose of such shares or estate, and that such foreign executor or administrator will be liable after such receipt or sale to account for such shares or estate, or for the proceeds thereof in the State or country where he was appointed ; and also provided that no person resident in this Commonwealth and interested as a creditor or otherwise objects to the grant- ing of the license, or appears to be prejudiced thereby ; but no such license shall be granted till the expiration of six months from the death of his testator or intestate.^ Similar stat- utory powers are given to executors or administrators to sell personalty in various States, ^ or to receive and receipt for.^ There is also sometimes a further provision by which a foreign administrator or executor may, by complying with certain pre- liminary requirements, be licensed to sell real estate to pay the debts of the estate.* So in Massachusetts an executor or administrator appointed in another State or in a foreign coun- try on the estate of a person dying out of this State may, if no executor or administrator has been appointed in this State, file an authenticated copy of his appointment in the probate court in any county where there is real estate of the deceased, and may then be licensed to sell it for the payment of debts, legacies, and charges of administration, as is prescribed for domestic executors and administrators,^ except that he must give bond 1 Pub. Sts. c. 142, § 3. 2 N. H. Gen. Laws, o. 201, § 18; Ga. Code, § 2618. 8 Miss. Rev. Code, § 2091. * N. H. Gen. Laws, c. 201, § 17; Ga. Code, § 2617; Kans. Comp. Laws, § 2588. 6 Supra, § 453, et seq. ; Mass. Pub. Sts. c. 134, §§ 1-15. 376 LAW OP EXECUTOES AND ADMINISTKATORS. to account for the proceeds of the sale, unless he files an au- thenticated copy of the bond given in the State or country where he was appointed, and conditioned to account for the proceeds of the sale.^ By the laws of Maryland, in order to facilitate the settlement of estates of non-residents, it is pro- vided by statute that if the deceased was entitled to or pos- sessed of any stocks or bonds of the State of Maryland or of the city of Baltimore, or of any stock company incorporated in that State, his right and title devolves upon the executor or administrator duly appoii^ted accoi'ding to the laws of the place where the decedent resided at the time of his death, in the same way as the same right and title would devolve upon an executor or administrator duly appointed in Maryland ; but the foreign executor or administrator cannot transfer the stocks or bonds until after one month's notice by publication twice a week in two daily papers in Baltimore, stating the death of the decedent, describing stock to be tratisferred ; ^ and this pro- vision does not hinder the grant of ancillary administration in Maryland, and the right of such ancillary administrator is preferred to the right of the foreign executor or administrator, if the former notifies the ofiicer having charge of the stock book and transfers thereof, of his claim to the stock before the latter has actually made any transfer.^ § 570. Iiiability for Assets brought into State of ancillary Ad- ministration. — It has already been said that in general an administrator or executor is not liable to be sued in his offi- cial capacity outside of the State or county in which he was appointed.* There have been cases, of which the leading one was the case of Campbell v. Tousey,^ in which it is held that if an executor or administrator appointed in one State goes into another carrying assets of the estate with him, and inter- 1 Mass. Pub. Sts. c. 134, §§ 16-18. 2 Md. Rev. Code, art. 50, §§ 114, 116. s Md. Rev. Code, art. 50, § 115. * Story, Confl. of Laws, § 513 ; supra, § 563. « 7 Cow. 64. FOREIGN AND INTERSTATE ADMINISTRATION. 377 meddles in the latter State with assets there, he may be held liable by creditors, not only for those assets, but for the assets which he has brought with him into the State. This opinion has not been generally received with favor. It has been strongly controverted by Mr. Justice Story in his book on the Conflict of Laws ; and the better opinion is that he is not so liable for assets which he brings from the State in which he was appointed, nor are the assets liable if sent on by the ex- ecutor without following them himself, and that creditors, if they wish to pursue these assets, must either resort to the principal administration or procure letters on the estate, and then proceed against the other administrator as executor de son tort?- This question was raised in a recent case,^ and the opinion above stated affirmed as the law of Connecticut, and at the same time a distinction drawn between assets collected by the executor in such State, and assets brought into that State from the State of principal administration, the court holding that the latter were already under the jurisdiction of the courts of the State of principal administration, and that then no other court would interfere to take jurisdiction ; while in the case of assets collected by him in a State other than that in which he was appointed, these assets were not under the special jurisdiction of any court, and creditors of that State might proceed against them, or against the executor as executor.^ § 571. Po-wer to indorse Notes or assign Mortgages. — The power of an executor or administrator appointed in one State to indorse a note so that suit may be brought upon it in another, has already been discussed.* An administrator can- not assign a mortgage of land in another State without taking out letters in that State.^ 1 Story, Confl. of Laws, § 514 J , Campbell v. Sheldon, 13 Pick. 8. ' Hedenberg v. Hedenberg, 46 Conn. 30. « Marcy v. Marcy, 82 Conn. 308. * Supra, §§ 448-451. * Cutter V. Davenport, 1 Pick. 81 ; svpra, § 451. 378 LAW OP EXECUTOES AND ADMINISTRATORS. § 572. Actions for Negligent Killing ; Limitations. — A claSS of actions which have given rise to difficult questions are those which ar6 sometimes given by statute for the negligent killing of the testator or intestate, when the facts of the case are such as to involve the laws of different States. This class of actions has been referred to already in two places, — first, in considering whether such a cause of action is assets of the estate so as to confer jurisdiction on the probate courts in case of non-residents ; ^ and again, in considering the question of assets of the estate,^ — and it is sufficient at this time to refer the reader to those sections. As to the effect of the ordinary statute of limitations in cases of administration in different States, it is held that the statute does not begin to run till after an administrator is appointed in the State in which suit is brought.^ The subject will be further treated of in considering the statutes of limitations.* § 573. In which States Suits to be brought. — Each admin- istrator of course can sue only on claims which properly be- long to the estate which is within his jurisdiction. A simple contract debt due to the estate may be sued in any State in which there is administration, and in which the debtor is found or resides.* In regard to specialties, however, suit must be brought by the administrator in whose State the specialty is found at the death of the decedent, since special- ties are assets in the place where they are found. Thus, when a policy of insurance on the life of the intestate was sued upon in two States by two administrators, it was held that the suit brought by the administrator who had possession of the policy should prevaJL^ § 574. Payment of Debts governed by Law of Forum. — The 1 Supra, § 66. = Supra, §§ 368-370. 8 Gallup «.' Gallup, 11 Met. 447. » Irifra, Chapter XXVI. s Merrill v. New Eng. Ins. Co., 103 Mass. 248; Hooker v. Olmstead, 6 Pick.-481; : - , . « Merrill v. New Eng. Iris. Co., 103 Mass. 251. FOEEIGJf AND INTERSTATE ADMINtSTRATION. 379 payment of debts is governed by the law of the place where the administration is being had, and therefore in cases of in- solvency the laws of that State govern the payment of debts, unless some different provision is made by statute.^ An im- portant result of this rule is, that in case preferences are allowed in one State, and not in another, the assets of the estate will be distributed according to the rule obtaining in that State in which they are found at the death of the dece- dent, and not according to the rule in any other State, even though it may be the State where the decedent resided at the time of his death, 'and which is therefore the State of domicil, the law of which governs the distribution of the estate among those who take as distributees.^ § 575. Insolvency determined by Condition of whole Es- tate. — Where the assets are sufficient to pay the debts of the estate few questions arise ; but cases may arise where the assets in one State are in excess of the debts, while assets in another are insufficient to meet the debts proved in that State, or where the personal estate is insufficient, and application is made for leave to sell the real estate. The general rule is that the condition of the whole estate should be looked at so far as it is known in all States, and the decisions should be based upon that condition.^ Thus, where a statute provided that if the estate was insolvent, the executor or administrator might have an action of waste against the heirs for impairing the value of the real estate, by selling or otherwise, it was held that the solvency or insolvency could only be determined at the place of principal administration, — that is, the residence of the deceased ; and that the fact that the assets in one State where ancillary administration was taken out were not suffi- cient to pay the debts in that State did not constitute insol- 1 Story, Confl. of Laws, § 524; De Sobry ». De. Lai§tre, 2 H. & J. 191. 2 Varnum v. Gamp, 13 N. J. L. 333; Smith v. Georgetown Bank, 5 Pet. 518. '■ « Dawes v. Head, 3 Pick. 128. - • 380 LAW OP EXECUT0E8 AND ADMINISTRATORS. vency of the estate. It is to be observed, however, that the question in this case was, not whether the estate should be put into insolvency, but whether there was such an insolvency as justified the administrator in bringing an action of waste against the heirs under the above statute, and it was held that there was not, the court saying, that although the administrar tor was not bound to look the world over for assets, yet he had no right to declare the estate insolvent until he at least knew what the assets and debts at the place of principal adminis- tration were.^ In another case the question was whether creditors in the State of ancillary administration might have leave to sell real estate to pay debts, the personal estate in the State of ancillary administration being insufficient for that purpose, but the general assets in the place of principal ad- ministration being in excess of the debts there proved. The application was refused on these principles, stated by Mr. Chief Justice Shaw, — " In all the States of the United States it must be presumed that all debts, as well those due to citi- zens of other States as those due to citizens of the same State, are to be paid out of the general assets before they can be ap* plied to the payment of legacies. Indeed the Constitution of the United States guarantees to citizens of each State the rights and privileges of citizens of all other States, amongst which may be reckoned that of proving claims and recovering debts against a deceased person in the due course of administration. Where there is an ample fund provided for the payment of debts in another State, to which for aught that appears the creditors could resort and obtain the payment of their debts, no license ought to be granted to sell real estate in this Com- monwealth, and thus disinherit the heirs, — at least until it is shown that the creditors have used some diligence to collect their debts in the foreign State, and have met with some legal impediment in obtaining them." ^ No case is known to have 1 McNichol V. Eaton, 77 Me. 248. '^ Livermore v. Haven, 23 Pick. 118. FOREIGN AND INTERSTATE ADMINISTRATION. 381 decided whether the same principle would apply in cases where the executor or administrator endeavors to have the estate put into insolvency, on the ground that the assets in his State are insufficient to pay debts, if it is shown that the assets elsewhere are sufficient. As such proceedings do not affect the right of heirs, perhaps the courts would allow the application ; although if this rule were adopted perplexing cases might arise where there was real estate enough to ren- der the estate solvent, and yet the court would be bound by the decision above stated to deny an application for the sale of real estate ; and the curious result would be found of an estate which was actually solvent being put into insolvency. Still it is difficult to see how the executor or administrator can be made responsible for assets over which he has no con- trol ; and probably this fact would lead the courts to allow proceedings to commence. In an early case in Massachusetts the facts were that the deceased resided in Vermont, and principal administration was there taken, and the estate was represented insolvent, commissioners appointed, and claims allowed to an amount in excess of the value of the estate, real and personal. Ancillary administration was taken out in Mas- sachusetts by the Vermont administrators for the purpose of selling real estate belonging to the estate in Massachusetts. No commission of insolvency was issued in Massachusetts, and the property in that State exceeded the debts. A cred- itor of the deceased residing in Massachusetts brought suit against the administrators in Massachusetts, and the court allowed him to recover the full amount of his debt, but ordered no execution to issue, and the administrators to pay only so much on the judgment as would give the creditor a pro rata payment with the Vermont creditors, the court say- ing, " As the estate is insolvent, a creditor here is not to be paid his whole debt to the prejudice of the creditors in Vermont, but only &pro rata dividend."^ 1 Davis V. Estey, 8 Pick. 475. 382 LAW OP EXECUTORS AND ADMINISTRATORS. § 576. statutes as to Payment of Debts. — In order to insure equality, however, there are in many States statutes which provide for the distribution of the assets among the creditors, resident and non-resident alike. Thus in Massachusetts and Maine it is provided by statute that if the estate is insolvent the distribution shall be made so as to give all creditors, for- eign and domestic, an equal proportionate share. To accom- plish this object, it is provided that the estate shall not be transmitted to the foreign executor or administrator, nor shall any foreign creditor be paid until all creditors, citizens of that Commonwealth, have received the share to which they would be entitled if the whole estate of the deceased, wherever found, were divided among all creditors in proportion to their respec- tive debts, without any preferences.^ If there is any residue left after paying the citizens of this Commonwealth, such resi- due may be paid (in the same proportion) to any foreign cred- itors who have proved their claims in this State, or may be transmitted to the foreign executor or administrator ; or if there is none, it shall after four years from the appointment of the administrator be distributed ratably among all creditors who have proved their claims in this Commonwealth."^ In New Hampshire there is a statute providing that if a certified list of claims against the estate, proved in another State, is given to the court in New Hampshire, it will make distribution on the basis of all the claims together, if the same principle is allowed in the other State.^ In Vermont the statute merely states that the estate shall be distributed so as to give an equal share as far as possible to creditors in both States.* And in order to do this, claims proved against the estate in another State shall be added by the judge to those proved in Vermont.^ Even in the absence of statutes the assets of 1 Mass. Pub. Sts. c. 138, §§ 3, 4. 2 lb. § 5; Me. Rev. Sts. c. 65, §§ 87, 88. 8 N. H. Gen. Laws, c. 199, §§ 26, 27, 28. « Vt. Rev. Laws, § 2192. s lb. § 2193. FOREIGN AND INTERSTATE ADMINISTRATION. 383 each State are liable not only to the claims of creditors resid- ing in the State, but to claims of all non-resident creditors who appear and prove their claims. ^ § 577. Distribution of Estate among Legatees and Distributees. — If the assets in the ancillary administration are not ex- hausted by the payment of debts, they may be remitted to the place of principal administration, or distribution of the estate among the persons entitled to succeed to it may be made by the ancillary administrator as if his administration was in- dependent.2 Which of these two courses should be adopted is entirely in the discretion of the court, guided by the facts of the case. If all the distributees live in the State of principal administration or near it, it is proper to avoid the expense and possible confusion of two distributions by sending the money to the principal administrator for distribution, but the rights of distributees in the State should be looked after.^ In a case in New York the will of a resident of California contained be- quests of leasehold property in New York. The bequests were void as to the law of New York as being against the rule against perpetuities and accumulations, but valid according to the law of California. The court stated that it would not directly aid in carrying out a bequest which was in violation of the statute law of the State and of a policy favored by the courts, nor would it hold the bequest void, 'since it was valid by the law of California, and being of personal property was governed by that law. There being no creditors in New York, the court directed certain legacies payable to legatees living in various Atlantic States to be paid to them out of the assets, and 1 De Sobry v. De Laistre, 2 H. & J. 191. ^2 Story, Confl. of Laws, § 513; Lawrence v. Kitteridge, 21 Conn. 581; Stevens v. Gaylord, 11 Mass. 256; Normand v. Grognard, 17 N. J. Eq. 428; Parsons v. Lyman, 20 N. Y. 103; Harvey v. Richards, 1 Mason, 381- 407. 8 Lawrence v. Kitteridge, 21 Conn. 581 ; Normand v. Grognard, 17 N. J. Eq. 428 ; Harvey v. Richards, 1 Mason, 381 ; Isham v. Gibbons, 1 Bradf. 70; Parsons v. Lyman, 4 Bradf. 268. 384 LAW OF EXECUTORS AND ADMINISTRATORS. the remainder of the assets to be remitted to California to be there administered.^ In Pennsylvania the courts have gone so far as to establish the rule that the balance must in no case be transmitted to the principal administrator, when there are resident legatees or distributees in the jurisdiction in which the fund is, and in a recent case this rule was said to be too firmly settled by authority to be departed from or doubted. In that case it appeared that there were no creditors in the State where principal administration was had, so that the only ques- tion was whether distribution should be had in the one State or the other .^ In either case, however, the law of the domicil of the deceased, as has been already shown, decides who are entitled to share in distribution.^ And there is no power in the courts of one State to compel the administrator or executor appointed in another State to remit the balance existing in his hands after the payment of debts to the State of the principal domi- cil, for distribution, Yet if he does so by order of the court in which he is settling the estate, his action is valid, and he will be protected in so doing.* § 578. statutes regarding Distribution of Foreign Estates. — r It is, however, of course always competent for a State to regu- late the administration of the estates of non-residents according to its own laws. This is done in many of the United States by statutes. Thus in Massachusetts it is provided by statute that the debts due in that State are first to be paid, and then the residue of the personal estate may be distributed in that State in the manner stated below ; or it may, in the discretion of the court, be sent to the foreign executor or administrator to be distributed according to the laws of the place where the 1 Despard v. Churchill, 53 N. Y. 192. 2 Parker's App., 61 Pa. St. 484; Dent's App., 22 Pa. St. 520; Moth- land V. Wireman, 3 Pa. 188. a Supra, § 560. 4 Freeman's App., 68 Pa. St. 151; Normand v. Grognard, 17 N. J. Eq. 428. FOREIGN AND INTERSTATE ADMINISTRATION. 385 deceased had his domicil.^ "When administration is taken out upon the estate of a person who was an inhabitant of any- other State or country, his estate found in Massachusetts is, after payment of his debts, to be disposed of according to his last will, if he left any, duly executed ; otherwise his real estate descends according to the laws of Massachusetts, and his personal estate shall be distributed and disposed of accord- ing to the laws of the State or country of which he was an inhabitant.^ In a case in which the facts were of a somewhat exceptional nature, it was held that where the court had as- sumed jurisdiction of the administration of an estate upon the theory that the deceased was a resident of the State, and the administration was continued for six years upon that theory, and four accounts, the last of which was final, had been settled, the court would not receive proof that the deceased was resi- dent in another State at the time of her death, but would proceed to distribute the estate according to the statute of distributions of its own State.^ § 579. Effect of Accounts rendered in different States. — If' the administration account is closed in either State, the correctness of that account cannot be disputed in the other State, the courts being bound by the decree of a sister State.* But if foreign creditors resort to the forum of principal ad- ministration and their claims are rejected, there being at the time no ancillary administration, they may still enforce their claims when administration has been taken out in their own State.^ And the settlement of the account in the ancillary jurisdiction is not conclusive upon claims against the estate in settling the accounts in the principal administration, or vice versa. Thus if a claim against the estate in favor of the ex- 1 Mass. Pub. Sts. c. 138, § 2. 2 Mass. Pub. Sts. c. 138, § 1. Same in Ala. Code, §§ 2153, 2154; Me. Kev. Sts. c. 65, § 36. * Record v. Howard, 58 Me. 228. * Holcomb V. Phelps, 16 Conn. 132, 133. ^ Lawrence's App., 49 Conn. 424. 25 386 LAW OP EXECUTORS AND ADMINISTRATORS.. equtor is proved in the ancillary administration, and allowed in the administration accoimts there, and is so large as not to be satisfied by the assets in that State, and the executor con^ sequently enters in his accounts in.the principal administration an item of balance due him on the ancillary administration accounts, the item may be contested, and the allowance of the claim in the ancillary administration is not conclusive, but the merits of the claim may be investigated.^ The settlement of the accounts in the ancillary administration is, however, con- clusive, so far as the assets in that jurisdiction are concerned, and the validity of debts paid, there and the legality of the payments, and allowing of the statement of assets, and every- thing else which concerns the ancillary administration only.^ The relation of an ancillary administrator to the principal administrator was discussed in a case in.Massachusetts.^ The facts of this case were that the testator was a resident of Maine, and died in Kittery in that State ; his will was proved there, and the defendants were appointed and qualified as executors ;: the defendants were residents of Massachusetts and procured ancillary administration in that State, proving the will as allowed by the statutes of that State, and after settling the estate in Massachusetts filed a final account of the ancillary administration, in which they credited themselves with having paid the balance thereof to themselves as executors in Maine. The plaintiff was a legatee under the will, to whom an annuity was given, and brought a bill in equity in Massachusetts after the filing of the above-mentioned account, asking that the de- fendants as executors reserve a fund sufiicient to pay her an- nuity. The assets in Maine were insufficient to pay all legacies in full. The court held that by filing the account the executors had settled the ancillary administration, and that as executors in. Maine, they were not. liable in. Massachusetts, or anywhere 1 Ela V. Edwards, 13 Allen, 49. " Clark V. Blackington, 110 Mass. 373. s Emery w. Batchelder, 132. Mass. 452'. FOREIGN AND INTERSTATE ADMINISTRATION. 387 outside the jurisdiction in which they were appointed, and that the court could not enforce the trust although the executor resided in the State in which suit was brought. The court expressly avoid the question whether if the ancillary executor- ship had still been open they would have entertained jurisdic- tion of the bill, involving as it would the rights of all the other legatees, and the marshalling and distribution of the whole estate. § 580. La'ws of other States must be proved as Facts. — It may be noticed in passing that if it becomes necessary in any legal proceedings to rely upon the law of another State or country, that law must be proved as a matter of fact, and will not be judicially noticed ; ^ and this proof should be made to ihe tribunal which tries the facts of the case, whether it is judge or jury, and the conclusion of this tribunal upon the law of the foreign State is a finding of fact, and not examin- able upon exceptions any more than other findings of fact.^ The law of a foreign State or country may be proved by the statutes, the reports of cases, or the testimony of experts.^ 1 1 Greenl. Evid. (14th ed.) § 5; Davis w. New York & N. Eng. R. R. Co., 143 Mass. 302; Hazleton v. Valentine, 113 Mass. 472, 478. 2 Ames ». McCamber, 124 Mass. 91; Sheffield v. Otis, 107 Mass. 386. « The Pawaschick, 2 Low. 142; Spaulding v. Vincent, 24 Vt. 501; 1 Greenl. Evid. (14th ed.).488, 489; Mass. Pub. Sts. c. 169, § 71 ; Ashley V. Root, 4 Allen, 504. 388 LAW OP EXECUTORS AND ADMINISTRATOBS. CHAPTER XXL JOINT EXECUTORS AND ADMINISTRATORS. § 581. Nature of the Estate of Joint § 586. Assignment of Mortgage ; Com- Executors and Administrators. promise of Suit. 582. Survivorsliip among Joint Ex- 587. Sales of Land. ecutors or Administrators. 588. Liability for Acts of the others. 583. Possession of One enures to All ; 589. Same subject. Contracts of One. 590. Effect of Joint Receipts. 584. Who is entitled to Possession. 591. Executor in Different States. , 585. One Executor or Administrator 592. Suits between Executors. may act alone. § 581. Nature of the Estate of Joint ISsecutors or Admlnis- trators. — There has already been occasion to consider inci- dentally several of the characteristics of the powers and duties of joint executors and administrators ; but the subject will now be further considered. The interest of two or more executors or administrators in the estate over which they are appointed is joint and entire, and the executors or administrators are considered as one individual.^ The nature of the estate which two or more executors or administrators have in the personal property belonging to the deceased is somewhat peculiai-. Each of the executors or administrators is entitled to the pos- session of all the personal property, and if one actually gets possession of any of the personal estate, he is entitled to re- tain it as against his co-executor or co-administrator.^ This interest also is of such a nature that no partition can be made among the several executors or administrators ; for each owns 1 Dyer, 23 J; 3 Bac. Abr. 30, tit. Ex'rs, D. 1; Oilman v. Healy, 55 Me. 120. 2 Edmonds v. Crenshaw, 14 Pet. 166; Burt v. Burt, 41 N. Y. 51. JOINT EXECUTORS AND ADMINISTRATORS. 389 the whole, thereby differing from ordinary joint tenants, who own only a partial interest, although possessed jointly.^ And since each of the joint executors or administrators owns the whole interest in the personal property, it follows that if either grants his share in the estate to a third person, he grants the whole estate.^ So, if one releases his interest to the other, nothing passes, because both owned the whole before.* § 582. Survivorship among Joint Executors or Administra- tors. — While, however, the interest is different in the above respect from the ordinary interest of joint tenants, yet it is in other respects like the latter interest. The rule as to sur- vivorship among the joint tenants applies to the interests of joint executors, and if either dies, his interest passes to the survivors or survivor, without any new grant.* This rule of survivorship was of great importance when the executor was entitled to the estate, after paying debts and legacies ; for if there were several executors, and one of them died before the joint interest was severed, the others took the whole, to the exclusion of his executors or administrators.^ § 583. Possession of One enures to All ; Contracts of One. — Since the executors and administrators are thus considered as one individual, if one of them takes possession of the estate or any portion thereof, that possession enures to the benefit of all ; and if the goods are afterwards taken away, an action may be brought by all for the tort.® As will be seen later, it is necessary that all joint executors or administrators should join in suits as a general rule. But in cases of contract re- lating to the estate, the action must be governed by the 1 Dyer, 23 6, in marg. ; Godolph. Pt. 2, c. 16, § 2. 2 Dyer, 23 6, in marg. ; Grodolph. Pfc. 2, c. 16, § 2. 8 Godolph. Pt. 2, c. 16, § 1. * Nation v. Tozer, 1 Cr. M. & R. 174, per Parke, B. 6 Frewen v. Eelfe, 2 Bro. C. C. 220; Griffiths v. Hamilton, 12 Ves. 298; Knight v. Gould, 2 My. & K. 295. 8 Nation V. Tozer, 1 Cr. M. & K. 174. 390 LAW OP EXECUTORS AND ADMINISTRATORS. parties to the contract ; and the rule is that contracts which were made with the deceased must be sued or defended by all the executors or administrators, since all of them collec- tively represent the deceased, and not any of them individ- ually;^ while those which have been made by the executors or administrators subsequently to assuming their offices de- pend upon the parties to the contract ; and if the contract is made with one of the executors or administrators alone, he alone should Sue and defend it, since such contracts do not bind the estate, but only the executors or administrators personally.^ § 584. Who is entitled to Possession. — Different circum- stances may control the actual possession of the estate. Each executor or administrator is entitled to the actual possession of the whole estate.^ If one executor or administrator se- cures the possession, and is ready to produce it on all occa- sions when it is necessary for the proper settlement of the estate, — such as producing a note or mortgage when money is paid upon it, in order that it may be indorsed or cancelled, — the other executor or administrator cannot complain, al- though he is denied access to the strong box or place where such estate is kept.* But of course, if there is any fraud, or the interests of creditors or beneficiaries are endangered, the court of equity or the probate court would entertain an appli- cation by one executor to have the estate delivered to him by the other.^ § 685. One Executor or Administrator may act alone. — As the executors or administrators are regarded as one person, any one may act alone in regard to the personal estate, in all 1 Godolph. Pt. 2, 0. 16, §1; Brassington «. Ault, 2 Bing. 177; Heath V. Chilton, 12 M. & W. 632. ^ Sumner v. Williams, 8 Mass. 162. '8 Edmonds v. Crenshaw, 14 Pet. 166; Burt v. Burt, 41 N. Y. 51. * Burt V. Burt, supra. 6 Wood V. Brown, 34 N. Y. 337; Burt v. Burt, supra. JOINT rEXECUTOBS AND ADMINISTRATTOBS. 391 acts in pais?- The administration of the estate may therefore be wholly carried on by one, and he may perform all the acts necessary to such administration. Thus one of several co- executors or co-administrators may assign or sell a promis- sory note payable to the testator,^ but not one payable to both of two executors as executors for a debt of the testator .^ So one may release a debt due to the estate ; * or he may receive money due on a promissory note, and give a valid receipt and discharge therefor.^ So one may release a claim of the estate against a person so as to destroy his interest in the estate and enable him to be a competent witness.® So one of several co-executors or co-administrators may settle an account with one who has had dealings with the estate ; ^ or if the executors or administrators are authorized by the probate court to compro- mise claims, one of them may compromise the claim and give a discharge in full of the claim without the assent of the other, since the statute giving the probate court power to authorize the executors or administrators to compromise claims does not add any new power to those already belonging to the office, but merely provides a sanction and protection for the executors or administrators in the exercise of their common- law power of compromising claims.* So one of sevei-al execu- 1 Wentw. Off. Ex. 206; Rigby,^a;jo.,19 Ves. 462; Lank v. Kinder, 4 Harr. 457; Jackson ». .Shaffer, 11 Johns. 513^ Wheeler v. Wheeler, 9 Cow. 34; Kerrf. Waters, 19 Ga. 136; Beecher «. Buckingham, 18 Conn. 121. 2 Wheeler v. Wheeler, 9 Cow. 34; Beecher v. Buckingham, 18 Conn. 121; Dwight v. Newell, 15 111. 333. 8 Smith V. Whiting, 9 Mass. 334. * Dyer, 28 6, in marg. ; Jacomb v. Hardwood, 2 Ves. 267; Shaw v. Berry, 35 Me. 279; Gilman v. Healy, 55 Me. 120; Stuyvesant v. Hall, 5 Barb. Ch. 151; Devling v. Little, 26 Pa. St. 502; Shreve v. Joyce, 7 Vroom, N. J. 48. ^ Beecher v. Buckingham, 18 Conn. 121. 6 Shaw V. Berry, 35 Me. 280. ' Smith V. Everett, 27 Beav. 446. s Gilman v. Healy, 55 Me. 124. 392 LAW OF EXECUTORS AND ADMINISTEATOES. tors may xaake a sale of a part of the estate or give it away, and it is a valid sale or gift.^ § 586. Assignment of Mortgage ; Compromise of Suit. — On the same principle it is held that one of several executors or administrators may assign or release a mortgage.^ But as an executor or administrator cannot put any new obligation upon the estate, except in rare instances where the consideration arose during the lifetime of the decedent, hut can only bind himself personally, he cannot bind his co-executors or co-ad- ministrators by any contract he may make without some assent or ratification on their part. Thus, if he borrows money for the estate, he alone is responsible, and neither the estate nor his co- executors are liable.^ As to proceedings at law, these will be considered later ; but it may be remarked that one of several executors defendant cannot confess judgment or otherwise dispose of the case, to the prejudice of his co-executors, who may wish to plead different pleas.* § 587. Sales of Land by Co-executors. — The power of ex- ecutors in regard to the sales of lands have been already referred to ; ^ but it may here be added that if one of several who are appointed executors by the testator refuses to accept the office, a power of sale of lands given to the executors may be exercised by those who accept the trust and qualify.® If all accept and qualify, and one dies, the others may execute the power ; and the same is true of a sole surviving execu- tor, although the power was given to executors in the plural number.^ Ordinarily, if all the executors die, resign, re- 1 Kelrock u. Nicholson, Cro. Eliz. 478, 496; Beecher v. Buckingham, 18 Conn. 121. 2 Murray v. Blatchford, 1 Wend. 583; Wheeler v. Wheeler, 9 Cow. 24 j Bogert V. Hertell, 4 Hill, 492; George v. Baker, 3 Allen, 326, note. » Bryan v. Stewart, 83 N. Y. 272. * Shreve v. Joyce, 7 Vroom, N. J. 49; El well v. Quash, Sfcra. 20. « Supra, § 475. «^Shelton o. Homer, 5 Met. 466, 467; Corlies v. Little, 14 N. J. L. 373; Leggett V. Hunter, 19 N. Y. 445; Zebach v. Smith, 3 Binn. 69. ' Co. Litt. 113 a; Houel v. Barnes, Cro. Car. 382; Milward v. Moore, JOINT EXECUTORS AND ADMINISTRATORS. 393 nounce, or are removed, such a power does not go to an ad- ministrator de bonis non, unless such provision is made by statute, as it is in many States.^ Thus, in New York, where a statute provides that such administrators shall have the same rights and powers, and be subject to the same duties as if they had been named executors in the will, it is held that all duties which belong distinctively to the office of the executors as such, and not as a trustee, devolve upon such an adminis- trator ; but where the will gives a power to the executor in a capacity distinctly different from his duties as executor, so that as to such duties he is to be regarded wholly as a trustee, and not at all as an executor, or where the power granted im- plies a personal confidence reposed in the individual over and above that which is ordinarily implied in the selection of an executor, the power does not pass to the administrator. An imperative power to sell real estate to pay debts and legacies is of the former kind, and devolves upon the administrator.^ § 688. Liability for Acts of Each Other. — The liability of one of several co-executors or co-administrators is generally limited to that portion of the estate which is in his possession, or which having once been in his possession he has allowed to go into the possession of his co-executor or co-administrator, or for acts of negligence or fraud of his companions which he knew of and assented to.^ But for assets which have never been in his possession he is not liable,* unless all the co- Sav. 72 ; Mott v. Ackerman, 92 N. Y. 551 ; contra, McRae v. Farrow, 4 Har. & M. 444; Kling v. Hummer, 2 Pa. 349. See Digger v. Jarmau, 4 Har. & M. 485. 1 Supra, § 475. « Mott v. Ackerman, 92 N. Y. 553. 8 Peter v. Beverly, 10 Pet. 532; Edmonds v. Crenshaw, 14 Pet. 166; Sparhawk v. Buell, 9 Vt. 41; Croft u. Williams, 88 N. Y. 388; Glaucius V. Fogel, 88 N. Y. 442; Ormiston v. Olcott, 84 N. Y. 346; Sutherland v. Brush, 7 Johns. Ch. 17; Fennimore v. Fennimore, 3 N. J. Eq. 292; Fisher V. Skillman, 18 N. J. Eq. 229; Brazer v. Clark, 5 Pick. 103; Ames v. Armstrong, 106 Mass. 18. ' * Douglass V. Satterlee, 11 Johns. 16 ; Williams v. Holden, 4 Wend. 223. 394 LAW OF EXECUTORS AND ADMINISTRATOES. executors or co-administrators have executed a joint bond, in which case each is responsible for the proper administra- tion of the estate.^ But they may avoid this liability by giv- ing separate bonds, in which case the liability becomes the same as has been stated to be their liability at common law;^ When the bond is joint, and an executor dies before breach, his representatives are not liable for an after-occurring breach by the other,^ although they are liable for a breach occurring before his death.* If an executor or administrator resigns or is removed, he is not liable on his bond for a breach by the other occurring after such resignation or removal.^ § 589. Liability of Co-ezecntors or Co-administratora. — As each executor or administrator has the right to the posses- sion of the whole estate,^ the mere fact that an executor or administrator allows another to take possession of the estate, and the latter subsequently misapplies it and wastes it, does not render the former liable for such misapplication. There must be a knowledge of and concurrence in such misapplica- tion, in order to render him liable,'^ or an agreement tliat the assets should be taken by the one who misapplies them.^ There has, however, been a noticeable tendency in the later decisions to extend this liability, the courts holding that there may be circumstances which render one executor or administrator lia- ble for merely allowing the other to receive the estate, — for instance, if the executor who is about to receive the estate is intending to waste it, and this intention is known to the other, 1 Knapp V. Hanford, 7 Conn. 138; Baboock v. Hubbard, 2 Conn. 536; Towne v. Ammidown, 20 Pick. 588 ; Brazer v. Clark, 5 Pick. 104; Ames v. Armstrong, 106 Mass. 15. 2 McKim V. Aulbach, 130 Mass. 481. 8 Towne u. Ammidown, 20 Pick. 538; Brazer v. Clark, 5 Pick. 104. * Brazer v. Clark, supra. ' Brazer v. Clajk, supra. ' Edmonds v. Crenshaw, 14 Pet. 166. ' Peter D. Beverly, 10 Pet. 532, 562; Croft v. Williams, 88 N. Y. 888; Sutherland v. Brush, 7 Johns. Ch. 17; Adair v. Brimmer, 74 N. Y. 566. 8 Ames J). Armstrong, 106 Mass. 15; Crof t w. Williams, supra; Adair V. Brimmer, supra. JOINT EXECUTORS AND ADMINISTRATORS, 395 the latter is liable for the former's misapplication ; but the mere fact that the executor who is about to receive the property is poor, or even insolvent, does not render the other liable for allowing him to receive it.^ It has been said that if one exec- utor is an active business man, familiar with the value of prop- erty, and accustomed to making investments, he would not be justified in allowing the property to go into the hands of a co-executrix who is in feeble health, and unaccustomed to business, and involved in the care of a large family of chil- dren.^ But it is not decided by that case that he would be liable for the misconduct of the latter. § 590. Effect of giving joint Receipt or Deed. — It has been seen that this liability of one of several co-executors or co- administrators for the acts of another is extended by giving a joint bond, by which the liability is extended so as to cover the whole administration of the estate.^ There was at one time a rule, that if one executor or administrator joined in a receipt for money which was actually paid to the other, the former by so joining rendered himself liable for the money as assets received by him. This rule is not supported by the modern authorities to its full extent ; * and the rule now is that it is a question of fact whether the money was ever in the possession and control of the person sought to be charged. Generally speaking, if the person paying the money intends to pay it to both, the joining in the receipt by one executor or administrator amounts to a direction to pay the money to the co-executor or co-administrator, and renders both liable for the money .^ And the rule now established is that such a receipt is prima fade evidence that both received the money ; and the 1 Croft V. Williams, 88 N. Y. 390. 2 Earle v. Earle, 93 N. Y. 112. 8 Supra, § 588. ■* SMpbrook v. Hinchinbrook, 16 Ves. 478. 6 Joy V. Campbell, 1 Sch. & L. 328, 341; Hovey v. Blakeman, 4 Ves. 596, 608. 396 LAW OF EXECUTORS AND ADMINISTRATORS. one who wishes to escape liability therefor must show that he never had possession or control of it, but joined the receipt merely for form.^ So where all executors join in a deed of the real estate, but the purchase-money is paid to one only, or paid to one by check immediately indorsed to another who gets 'the money on it, the last-mentioned alone is liable for the funds.2 § 591. Executors in different States. — Administrators ap- pointed in different States are not, strictly speaking, co-ad- ministrators ; nor is there any joint liability or estate existing" between them.^ And the same is true when the testator by his will appoints one executor to take the administration of his will in one State, and another in another. Thus, where the testator appointed one executor for the State of Michigan and another for the State of New York, it was held that there was no privity between them ; that the administrations were totally distinct, and each executor was responsible only for his own assets, and not for those which were in the hands of the others.* § 592. Suits between Executors. — It naturally follows from the nature of the interest of co-executors or co-adminis- trators that they cannot sue each other upon matters con- nected with the estate.^ And if one executor or administrator is plaintiff in a suit concerning the estate and another is de- fendant, the suit will abate, although there may be other plaintiffs or defendants.® If one who is executor or adminis- trator is a creditor of the estate, he cannot sue the estate for > McNair's App., 4 Rawle, 148, 157; Monell v. Monell, 5 Johns. Ch. 283; MoKim v. Aulbach, 130 Mass. 484. 2 Paulding v. Sharkey, 88 N. Y. 432. 8 Supra, § 562. * Sherman v. Page, 85 N. Y. 126. But see Hill v. Tucker, 13 How. (U. S ) 458; Goodall v. Tucker, lb. 469. 6 Wentw. Off. Ex. 75; Moffatt ». Van MilHngen, 2 Bos. & P. 124, note (c) ; Martin v. Martin, 13 Mo. 36; Steinnian v. Saunderson, 14 Serg. & R. 357; Simon v. Albright, 12 Serg. & R. 429. * Steinman v. Saunderson, supra ; Simon v. Albright, supra. JOINT EXECUTORS AND ADMINISTBAT0E3. 397 his debt ; ^ but he. must enter the debt as a claim against the estate, and have it allowed, as has been before seen.^ And it has been held that if the other executor wrongfully refuses to allow the claim, a bill in equity will lie to compel him so to do.^ But in States where the probate courts have full juris- diction of the settlements of estates, it is probable that such wrong-doing on the part of the executor would properly be examined in the probate court rather than in a court of equity.* The mere fact that a creditor of the estate has been named in the will as one of the executors does not incapaci- tate him to sue the estate on his debt, if he has renounced the executorship or failed to qualify, and has not acted at all in the ofBce.^ Generally speaking, where one executor or ad- ministrator has cause to complain of the acts of his co-execu- tor or co-administrator, he should proceed in the probate court. Thus where one executor refused to sign a petition to the probate court for leave to sell real estate to pay debts, and announced his intention to use the funds in his hands to pay legacies, and not debts, and had appropriated rents collected by him to his own use, it was held that his co-execu- trix could not maintain a bill in equity to compel him to sign the petition, and otherwise perform his duty, but should move for his removal in the probate court.^ And this principle, that one executor or administrator may apply for the removal of another, was sustained in a case in Maryland.^ On the other hand, a bill in equity has been sustained in New York by one executor or administrator to compel his companion to 1 Saunders v. Saunders, 2 Litt. 314; Martin v. Martin, 13 Mo. 36; Cole V. Wooden, 3 Harr. 15. 2 Supra, § 420. 8 Ludlow V. Ludlow, 4 N. J. L. 189. * Southwick V. Morrell, 121 Mass. 520; Foster ». Foster, 134 Mass. 120. 6 Marsh v. Oliver, 14 N. J. Eq. 259; Dorchester v. Webb, W. Jones, 345. « Southwick V. MorreU, 121 Mass. 520. ' Hesson v. Hesson, 14 Md. 8. 398 LAW OF EXECUTORS AND ADMINISTEATORS. perform his duty.-' If one of the executors or administrators is fraudulently conqealing part of the estate, the other may cite him. into the probate court, under the statutory provision regarding the examination of persons suspected of concealing the estate, just as he might a third person.^ 1 Elmendorf v. Lansing, 4 Johns. Ch. 562. 2 Case's App., 35 Conn. 115. SETTLEMENT OP PARTNERSHIP ESTATES. 399 CHAPTER XXII. SETTLEMENT OF PARTNERSHIP ESTATES, § 593. Partnership dissolved by Death. § 604. Debts due to the Firm. 594. Surviving Partner as Adminis- 605. Business continued, after Part- trator. ner's Death. .•595. Relative Position of Surviving 606. Interest; Profits of Continued Partner and Representatives Business. of Deceased Partner. 607. Estimating Profits of Continued 596. Rights of Surviving Partner in Business. Massachusetts, 608. Compensation of Labor and Skill. 597. Proceedings to settle the Estate. 609. Effect of Continued Business on 598. Bill in Equity for Account. Creditors. 599. Unsalable Assets, Valuation by 610. Estateboundby Executor, when. Court. 611. Executor as Partner. 600. Debts of the Firm. 612. Goodwill and Name of Partner- 601. Recoverable at Law or Equity, ship. when. 613, Statute as to use of Deceased's 602. Insolvency of Estate, Effect of. Name in Firm Name. 603. Separate Creditor's Right to sue Stirviving Partner. § 593, Partaiership dissolved by Death, — A partnership, being a voluntary association of persons who have selected each other on account of personal qualifications for attaining the object of the partnership, depends upon the continuance of each of the partners in the partnership, and is dissolved by the death of any one of its members, unless the agreement of partnership provides for its continuance by the survivors.^ § 594, Surviving Partner as Administrator. — It has already been seen that in some States statutes provide that the sur- viving partner shall be disqualified to be administrator of his deceased partner's estate, while in at least one State he is by 1 Cravrford v. Hamilton, 3 Madd. 251 ; Gratz »j Bayardi 11. Serg. & K. 4JL; Smith'a, Est,, 11 Phila. 13L; Bhillipsv. Blatohford, 137 Mass. 510; Marlett v. Jackman, 3 Allen, 290; Washburn v. Goodman, 17 Pick. 525; Tyrrell v. "Washburn, 6 Allen, 466; Burnside v. Merrick, 4 Met. 540. 400 LAW OP EXECUTORS AND ADMINISTRATORS. statute made the administrator of such estate ; ^ and there has already been some discussion of what the assets of such an estate are, so far as concerns the partnership.^ It should be added that real estate which has been bought with partner- ship funds and used in the partnership is while so used considered personalty, but after the partnership affairs are wound up regains its character of real estate, and descends to the heirs, and does not go to the personal representatives.^ And if the real estate has been sold to pay partnership debts, the surplus, if any, reassumes the character of real estate, and is so distributed.* In regard to the desirability of appointing one partner to settle the estate of another, a high authority on the law of partnership says : " With a view to obviate this " (that is, the difficulties of having such estate settled by out- siders), " it is not unusual for one partner to make his co- partner his executor ; but the difficulty of the executor's position is thus rather increased than diminished ; for his own personal interest as a surviving partner is brought into direct conflict with his duty as an executor. Everything, therefore, which he does is liable to question and misconstruction on the part of the persons beneficially entitled to the estate of the deceased ; and he is practically much more fettered in the dis- charge of his duties and in the exercise of his rights than if he had not to act in the double character imposed upon him." ^ The various considerations which are above adverted to have led, in many States, as has been previously stated, to the passage of statutes disqualifying a surviving partner from acting as administrator ; but unless such a statute exists a surviving partner is competent to undertake the office.® 1 Supra, § 101. 2 Supra, §§ 336, 389. 8 Shearer v. Shearer, 98 Mass. 116; Leaf's App., 105 Pa. St. 513; Fos- ter's App., 74 Pa. St. 391. * McAvoy's Est., 12 Phila. 83. 5 Lindley on Partnership, *593; Button v. Rossiter, 7 DeG. M. & G. 12. 6 Supra, § 101. SETTLEMENT OF PARTNERSHIP ESTATES. 401 § 595. Relative Position of Surviving Partner and Represent- atives of Deceased Partner. — Upon the dissolution of a part- nership by the death of one of the partners, the surviving partners immediately have the right to the possession of all the partnership property, and the sole right of collecting the debts due to the firm. Having these rights, they are also burdened with the corresponding duty to collect the assets of the firm, reduce them to money, pay the debts of the firm, and when they have thus settled the affairs of the partnership, divide the surplus between themselves and the estate of the deceased partner in proportion to the capital of each which is therein invested.^ Correlative to this, at common law, and imless changed by statute, the position of the representatives of the deceased partner in regard to the surviving partners is that they are entitled to have the share of the deceased partner ascertained and paid. This result may be accomplished by a general winding up of the partnership affairs and sale of the assets, or it may be accomplished by a sale by the executors or administrators to the surviving partners of the share of the deceased at a valuation. There is no right of survivorship among partners; and the partnership estate belongs to the surviving partners and the representatives of the deceased partner in the same proportion as it did to the deceased part- ner and the others.^ When the partnership affairs are all settled, and a balance struck between the surviving partners and the representatives of the deceased, the surviving part- ners may turn out to be either debtors or creditors of the estate. They are debtors if when the partnership affairs are wound up by them the partnership is solvent, and there is a balance of the assets due to the estate ; they are creditors if 1 Voorhis V. Childs, 17 N. Y. 356; Robinson v. Simmons, 146 Mass. 175; Tremper r. Conklin, 44 N. Y. 61. " Lindley on Partnership, *591, *593; Freeman v. Freeman, 136 Mass. 263; Washburn v. Goodman, 17 Pick. 525; Burnside v. Merrick, 4 Met. 541; Voorhis v. Childs, 17 N. Y. 356; Tremper v. Conklin, 44 N. Y. 61. 26 402 LAW OP EXECUTORS AND ADMINISTRATOES. they have paid debts of the partnership to an amount exceed- ing their proportion of the firm debts.^ § 596. Exceptional Position of Surviving Partner in Massa- chusetts. — The foregoing statement, that there is no sur- vivorship among partners, is not true in Massachusetts. In that State it is held that when a partnership is dissolved by the death of one of the partners, the survivor becomes the owner of the personal property of the partnership, — the rep- resentatives of the deceased partner having certain rights against the survivor, the chief of these being the right to call him to account for the collection and application of the prop- erty, and to compel him to pay any balance that may be due to the estate ; but the legal title to the property vesting in the survivor.^ But in regard to real estate belonging to the partnership, the land descends to the heirs of the deceased partner, subject to be sold and converted into personalty, if that proceeding is necessary in order to make a division of the partnership assets.^ § 597. Proceedings to settle the Estate. — The regular pro- cedure is for the surviving partners to collect the assets by enforcing payment of the debts so far as possible, and then to ascertain the value of the assets, either by valuation or by sale, and to transfer the share belonging to the deceased part- ner to the representatives of his estate.* Ascertaining the value of the assets by a valuation or by a private sale is not a matter of right, but of agreement between the surviving part- ners and the representatives of the deceased partner. If they agree, they may value the deceased's share, or they may sell it to the surviving partners,^ or to any other person, subject of course to answer for such proceedings to the next of kin and 1 Lindley on Partnership, *591. 2 Bush V. Clark, 127 Mass. 112. * Shearer v. Shearer, 98 Mass. 115. * Lindley on Partnership, *591, *592 ; Freeman v. Freeman, 136 Mass. 263. fi Freeman v. Freeman, 136 Mass. 263. SETTLEMENT OF PAETNEBSHIP ESTATES. 403 others interested in the estate of the deceased, in settling their probate accounts. It is therefore preferable to have the as- sent of those interested in the estate to such agreements.^ If the parties before referred to cannot agree to any such mode of ascertaining the value of the deceased partner's share, the only mode which either can insist upon as a matter of right is a suit to wind up the partnership, in which the procedure is to have the assets sold at a general sale by order of the court, and the proceeds distributed in the proportion in which the capital of the partnership is owned.^ § 598. Bill in Equity to settle Partnership Affairs. — Part- ners, on account of their peculiar relationship, cannot sue each other at law for demands based upon partnership dealings during the existence of the partnership. Their only remedy is a bill in equity, in which all the demands and accounts of the partnership are brought together and settled, and the bal- ance of assets or liabilities apportioned between the two part- ners.2 This rule, which applies to all cases of settling the affairs of the partnership whenever it is dissolved, applies equally to the case when the partnership is dissolved by the death of one of the partners ; and the mode in which the rep^ resentatives of the estate Of the deceased partner obtain a settlement of their accounts is by a bill in equity, in which it is prayed that the partnership affairs be wound up, and that there be an accounting and payment to the plaintiffs of what- ever may be due to the estate.* This accounting involves two sets of accounts, — first, accounts of the partnership with 1 Lindley on PartiiersMp, *592, *593. ^ Lindley on Partnership, *592, *593 ; Crawshay r. Collins, 15 Ves. 226, 229; Featherstonhaugli v. Fenwick, 17 Ves. 308; Freeman v. Freeman, 136 Mass. 263 ; Robinson v. Simmons, 146 Mass. 175. ' Capen v. Barrows, 1 Gray, 381; Rockwell v. Wilder, 4 Met. 556; McFadden v. Hunt, 5 W. & S. 468. * Schenkl v. Dana, 118 Mass. 237; Freeman v. Freeman, 138 Mass. 264; Knowlton v. Reed, 38 Mei 246; Woodward v. Cowing, 41 Me. 9; Buckingham v. Ludlum, 37 N. J. Eq. 139. 404 LAW OP EXECUTORS AND ADMINISTRATORS. strangers ; and second, the accounts between the surviving partners and the estate of the deceased partner. All the partnership debts must be paid before anything is due to the estate, and therefore in such proceedings a creditor may in- tervene and obtain the payment of his debt.i It is not always possible to secure the assistance of a court of equity. For in- stance, it has been held in a Massachusetts case that when the debts of the partnership are all paid, and there is nothing left but division of the assets, and these assets are real estate which can be divided up between the surviving partner and the heirs of the deceased partner, a court of equity will not interfere and order a sale of the land, in order to convert the real assets into money, but will leave the parties to divide up the land.2 § 599. Unsalable Assets, Valuation preferred to Sale. — If any of the assets are unsalable, they will be valued by the court in which the partnership is being wound up.^ As a forced sale under order of the court is likely to be detrimental to the interests of all those who are concerned in the partner- ship affairs, the courts will always prefer to settle the part- nership affairs upon some other basis, — as, for instance, by valuation or sale to one of the partners.* § 600. Debts of the Firm. — It would be beyond the scope of this work to enter into a complete discussion of the debts and credits of the partnership and the method of settling them, except in relation to the settlement of the estate of the deceased partner ; and it may be said that the rule is that creditors of the firm may proceed for their debts against the estate either of the deceased partner or the survivors, as 1 Washburn v. Goodman, 17 Pick. 528; Backingham v. Ludlum, 37 N. J. Eq. 139. ^ Shearer v. Shearer, 98 Mass. 115. ' Lindley on Partnership, *558; Smith u. Mules, 9 Hare, 572; Ambler V. Bolton, 14 Eq. 427. * Lindley on Partnership, *556, *591 ; Leaf v. Coles, 1 DeG. M. & G. 171. SETTLEMENT OP PARTNEESHIP ESTATES. 405 they wish, without x'egard to the solvency or insolvency of either ; hut that in case of insolvency they cannot have pay- ment of their debts out of the separate estate of the part- ners until all the separate creditors are paid.^ And the rule is generally adopted that partnership debts are to be paid from partnership funds, and separate debts from sepa- rate estate, and if either assumes to receive payment from the other's funds, it must do so subject to the rights of the other.2 In some States the power of the creditor to pursue his claim against the estate of the deceased partner is somewhat restricted ; and it is the law in those States that a creditor of the firm cannot proceed against the estate of a deceased part- ner until he has shown that he cannot collect his debt from the surviving partner. This rule is based upon the fact that the surviving partner has the sole possession of the partner- ship funds, and that these funds are the primary fund for paying partnership debts. The rule is, therefore, held in these States that the creditor must show that he has pro- ceeded to execution against the surviving partners, and failed to collect his debt, or that the surviving partners are insol- vent.^ It is not necessary, however, that the creditor should show that the surviving partners are insolvent. It is enough if he shows that he has obtained judgment against them, and had execution issued, and the execution is returned unsatis- fied by the sheriff; and this is true although evidence is offered to show that there was in fact property belonging to the surviving partners which might have been found by the ^ Lindley on Partnership, *597, *599 ; Sampson v. Shaw, 101 Mass. 145 ; Blair v. Wood, 108 Pa. St. 278; Simpson v. Schulte, 21 Mo. App. 639; Silverman v. Chase, 90 lU. 37. 2 Bumside v. Merrick, 4 Met. 542. 8 Voorhis v. Childs, 17 N. Y. 356; Grant v. Shurter, 1 Wend. 148 ; Pope V. Cole, 55 N. Y. 124; Pendleton v. Phelps, 4 Day, 481; Sturges v. Beach, 1 Conn. 509; Alsop v. Mather, 8 Conn. 584; Buckingham v. Lud- lum, 37 N. J. Eq. 140. 406 LAW OF EXECUTORS AND ADMINISTRATORS. sheriff and applied to the payment of the debt.^ In Massa- chusetts by statute it is provided that, when two or more per- sons are indebted on a joint contract, or on a judgment founded on a joint contract, and either of them dies, his estate shall be liable therefor, as if the contract had been joint and several, or as if the judgment had been against the deceased alone. The effect of this statute is held to be to make the obligation of a partnership joint and several ; and suit may be brought either against the surviving partner or against the estate of the deceased partner ,2 but not against both in one suit.^ § 601. Whether by Suit at Law or in Equity. — In England, while it is held that the creditor may sue either the surviving partner or the estate of the deceased for his debt, it has been held that if he proceeds against the latter he must do it in equity, since he has no direct claim at law upon the estate, but only an equitable claim based on the equity of the sur- viving partner ; but since the judicature act he may sue both at law.* In Massachusetts, as has been seen, the action against the estate is at law ; ® and this is the general rule.^ But in New York and New Jersey the action must be in equity.'^ § 602. Insolvency of the Estate. — If the Creditors of the firm pursue their claim against the estate of the deceased partner, and their claims, together with those of the separate creditors, make up a sum greater than the total assets of the 1 Pope V. Cole, 55 N. T. 124. 2 Curtis V. Man.sfield, 11 Cush. 152; Sampson v. Shaw, 101 Mass. 152; Mass. Pub. Sts. c. 136, § 8. s New Haven & Northampton Co. v. Hayden, 119 Mass. 361. * Lindley on Partnership, *598, *e03; Pope v. Cole, 55 N. Y. 127; Voorhis 0. Childs, 17 N. Y. 355. 5 Sampson v. Shaw, 101 Mass. 145. « Blair v. Wood, 108 Pa. St. 278; Miller v. Keed, 27 Pa. St. 244; Brewster v, Sterrett, 32 Pa. St. 115. ' Pope V. Cole, 55 N. Y. 127; Buckingham v. Ludlum, 37 N. J. Eq. 140. SETTLEMENT OP PARTNERSHIP ESTATES. 407 estate, including the share of the partnership assets wliich belongs to the estate, each class of claims must be primarily remitted to its own class for payment, and can come upon the other only after the latter debts have been satisfied.^ This rule arises from the fact that the separate creditors of the de- ceased have no claims upon the assets of the estate until all the firm debts are paid, since the only assets of the estate of the deceased arising from the partnership funds are the sur- plus of such funds over partnership debts.^ And, conversely, the partnership debts are to be satisfied out of partnership assets, and can only come upon the separate estate after the Separate creditors have been satisfied, in accordance with the established bankruptcy laws.^ Thus, in Massachusetts, in set- tling an insolvent estate of a deceased partner, if both indi- vidual and co-partnership claims are proved against the estate, the commissioners make two lists of claims, and the partner- ship estate is distributed among the partnership creditors, and the separate estate among the separate creditors.* If the de- ceased partner owed the firm, and his estate is insolvent, as well as the surviving partner, the estate is liable to make good the amount which the deceased partner equitably owed the living partner as an individual, — that is, one half (if the shares of each partner in the partnership are equal) of what he owed the firm ; that is, the living partner comes in as an individual creditor of the estate. To this extent only can the surviving partner or his creditors reach the individual assets of the estate.^ When, however, there is no joint or partner- 1 Burnside v. Merrick, 4 Met. 542; Black's App., 44 Pa. St. 503; McCormick's App., 55 Pa. St. 252; D'Invillier's Est., 8 W. N. C. 455. 2 Lindley on Pai-tnership, *599 ; Burnside v. Merrick, 4 Met. 542. » Lindley on Partnership, *598, «599; Bush v. Clark, 127 Mass. Ill; Burnside v. Merrick, 4 Met. 542; Harris v. Peabody, 73 Me. 262; Davis u. Howell, 33 N. J. Eq. 72; Hartman's App., 107 Pa. St. 327; Doggett v. Dill, 108 111. 560. * Bush V. Clark, 127 Mass. 113; Burnside v. Merrick, 4 Met. 542. 6 McCormick's App., 55 Pa. St. 255. 408 LAW OP EXECUTORS AND ADMINISTRATORS. ship estate at the death of the partner, and there is no solvent partner, it is held that the firm creditors may come in equally with the separate creditors against the separate estate.^ § 603. Separate Creditor's Right to sue Surviving Partner. — Separa,te creditors of the deceased cannot generally sue the sur- viving partners. The executor or administrator of the deceased alone has the right to call the surviving partners to account, and compel them to surrender the share of the firm assets which belongs to the estate of the deceased partner.^ There are, however, cases in which the executor or administrator has put it out of his power to call the surviving partner to ac- count. In such cases, in England, it is held that the surviving partners may be made parties defendant in a suit by a sep- arate creditor, along with the personal representative. These cases are where there is collusion shown between the per- sonal representative and the surviving partners,^ or refusal by the former to compel the latter to account,* or dealings which preclude the personal representatives from compelling the ac- counts,^ or the fact that the executors or administrators are themselves partners, and liable therefore to account to them- selves as executors ; ® and generally whenever circumstances exist which prevent the representatives of the deceased partner from calling upon the surviving partners to account.'^ § 604. Debts due to the Firm. — It has already been seen that the partnership assets belong both to the surviving part- ners and the representatives of the deceased partner.^ As to, ^ Harris v. Peabody, 73 Me. 262 ; Lindley on Partnership, *599 ; Speny's Est., 1 Ashm. 347. 2 Lindley on Partnership, *611 ; Stainton v. The Carron Company, 18 Beav. 14; Harrison v. Righter, 11 N. J. Eq. 389; Rosenzweig v. Thomp- son, 66 Md. 593. " Doran v. Simpson, 4 Ves. 651; Gedge v. Traill, 1 Ry. & M. 281, note. * Burroughs v. Elton, 11 Ves. 29. 6 Law V. Law, 2 Coll. 41; 11 Jur. 463. ° Benningfield v. Baxter, 12 App. Cas. 167. ' Travis v. Milne, 9 Hare, 150. 8 Supra, § 593. SETTLEMENT OP PARTNERSHIP ESTATES. 409 the debts due to the firm, however, the promise of the debtor being to all the partners jointly, if one dies, only the sur- vivors can maintain an action upon the promise. It is accord- ingly held that although the surviving partners do not hold either the legal or equitable title to the whole of the firm as- sets, yet they are the only persons who can bring suits on the partnership debts ; and all debts should be paid by and to them.i Nor does it make any difference that, upon an ac- counting between the surviving partner and the representa- tives of the deceased partner, nothing would be due to the surviving partner.^ The surviving partner may also assign a chose in action.^ The administrator of the deceased partner cannot sue a debtor of the firm ; the right belongs wholly to the surviving partner.* And if the surviving partner dies, his personal representative alone has the right to sue on the part- nership debts.^ Although the surviving partner does not own all the assets alone, yet his right to bring suit on the partner- ship debts is so far his own that he may join a debt of his own in the suit ; ^ and the defendant may set off a debt due to him by the surviving partner individually.^ If there are sev- eral surviving partners, all must join the suit.* § 605. Business continued after Partner's Death. — The busi- ness of the firm is supposed in theory to be closed out as soon as possible after the decease of the partner. Practically, how- ever, in many cases the business is continued by the surviving partner, and sometimes by direction of the will or by agree- ment of the persons interested in the estate, or even without 1 Lindley on Partnership, *591; Tillotson v. Tillotson, 34 Conn. 335; Merritt v. Dickey, 38 Mich. 41 ; Daly v. Ericsson, 45 N. Y. 790; Nehrboss V. Bliss, 88 N. Y. 604; Holbrook v. Lackey, 13 Met. 134. ^ Daly V. Ericsson. 45 N. Y. 790. ' Daly v. Ericsson, supra. * Holbrook v. Lackey, 13 Met. 134. 6 Nehrboss v. Bliss, 88 N. Y. 604. e Hancock v. Haywood, 8 T. R. 433 ; Adams v. Hackett, 27 N. H. 289 ; Nehrboss v. Bliss, 88 N. Y. 604. 7 Holbrook v. Lackey. 13 Met. 134; Nehrboss v. Bliss, 88 N. Y. 604. 8 Peters v. Davis, 7 Mass. 257. 410 LAW OP EXBC0TOBS AND ADMINISTRATORS. authority, the executor or administrator joins in the continu- ance of the business. It is evident that the rights of the parties may be much varied by such conduct; and these charges will be considered, first, in regard to those interested in the estate, and second, with regard to the creditors of the estate. As to the first, the general rule is that, in settling the accounts of the firm, the surviving partners must account for all the profits which have been made in the business since the death of the deceased partner, as well as before and up to the time of closing the account ; for his capital is still in the firm, and is entitled to its share of the profits.^ The continuance of the business by a surviving partner any longer than is necessary to close out the business is of course without right, unless done by a special agreement to that effect in the partnership articles, or unless it is done by the executor by direction of the will, or by agreement of those interested in the estate.^ The questions which are raised by continuing the business are extremely complicated and difficult, particularly in regard to the liability of partners employing the capital of the deceased partner. Their pri- mary liability is to make whole the capital, and to pay either the profits received by them or interest upon the capital ; which of these two it shall be seems to depend upon the option of the representatives of the deceased partner. If the business has been profitable, the estate of the deceased should be allowed the whole profits made by his share of the capital, less a deduction to compensate the partners who managed the business for their time and trouble in so doing.^ If the busi- ness has been so unprofitable that the profits do not amount to simple interest on the capital, the representatives of the '' Liudley on Partnership, *521; Freeman r. Freeman, 136 Mass. 264; Robinson v. Simmons, 146 Mass. 175. ^ Lindley on Partnership, *590; Robinson v. Simmons, supra. " Lindley on Partnership, *527, *528, *592; Robinson v. Simmons, supra. SETTLEMENT OF PARTNERSHIP ESTATES. 411 deceased partner's estate may claim simple interest upon the capital, or in cases of fraud or breach of trust compound in- terest.i If the executors or administrators themselves join in continuing the business, they render themselves liable in the same way as the surviving partners, with the additional fac- tor against them that they have been guilty of a breach of trust, and are therefore more liable to be held for compound interest.^ §606. Interest; Profits of Continued Business. When inter- est is charged against sui'viving partners, it should begin to run after a reasonable time has been allowed since the death of the deceased partner, in which they may collect the debts and settle the affairs of the firm. Interest should not ordi- narily be charged immediately from the death of the deceased partner. In a case in Massachusetts, eighteen months was allowed for the settlement of the affairs of the firm, and this was considered a proper allowance.^ In computing the profits of a business carried on after a partner's decease, each case must stand on its own circumstances as to the pro- portion of profits to be charged to capital, and to skill and time and labor of the surviving partners who conduct the business.* The general rule laid down in a recent case in Massachusetts is that profits should be divided accord- ing to capital, after deducting the share of profits which is attributable to the skill and services of the surviving partner.^ But in the same case, it was held, on the special circumstances of the case, that after the surviving partners had paid to the estate of the deceased the original capital and interest, thereafter they should be held to pay only interest at seven per cent upon the balance still due, consisting of 1 Lindley on Partnership, *531. . 2 Lindley on Partnership, •528, *529, *593. » Washburn o. Goodman, 17 Pick. 526. * WiUettr. Blanford, 1 Hare, 253 ; Lindley on Partnership, *525, *526 ; Kobinson v. Simmons, 146 Mass. 176. ° Bobinson v. Simmons, 116 Mass. 177. 412 LAW OP EXECUTORS AND ABMINISTEATORS. Surplus profits over the interest on the original capital, and should not be compelled to pay the whole profits accruing upon that balance. § 607. Estimating Profits of Continued Business. — In an- other case in Massachusetts ^ the facts were that one partner died, and the other partner bought the partnership assets at a valuation from the representatives of the deceased, except- ing a patent right, which had been owned by the partners, and under which they had manufactured. The surviving partner continued to manufacture under this patent, against the remonstrance and prohibition of the administratrix of the deceased partner, who finally brought a bill in equity for set- tling the affairs of the partnership, and for an accounting of the profits of the manufacture of the patented article. The court sustained the bill, and ordered an accounting, saying : " The surviving partner is bound to wind up the partnership, and ordinarily to make a sale of all personal assets, and not only to pay the debts of the firm, but to distribute to the repre- sentatives of the deceased partner the share to which they are entitled. This duty of the surviving partner may not be strictly that of a trustee, but it is analogous ; and he is not allowed to derive a distinct and independent personal advantage, either directly or indirectly, from the use of the partnership assets, but he must manage and dispose of them with a single eye to the advantage of the partnership estate which he is to admin- ister. This rule is universal in its application to fiduciary relations : it extends also to the duty of a surviving partner ; and he is bound to act in perfect fairness and good faith ac- cording to the highest standard of honor, and with reasonable care and diligence with reference to the decedent's interests. That which was partnership property before the dissolution continues to be so afterwards ; and a sale of the whole per- sonal property will ordinarily be enforced by a court of equity, and an account ordered of profits made since the dissolution. 1 Freeman ii. Freeman, 136 Mass. 260. SETTLEMENT OF PAETNEESHIP ESTATES. 413 The surviving partner is not allowed to divide this property in specie, or to take it himself at a valuation, or to have its value ascertained otherwise than by a sale ; but he must turn all the assets into an available and distributable form, so far as this can be done." And it was held that the letters-patent should be sold, and also that the defendant should account. The case was sent to a master to account before him, with instructions to find the amount of net income and profits from the manufacture and sale of the patented goods and the use of the letters-patent, and in taking the account to make to the defendant all just allowances for money and labor ex- pended in carrying on the manufacture and sale of said goods. The master reported in two forms, — first, the net profits of the manufacture and sale of the patented goods, in- cluding both the manufacturer's and patentee's profits ; and secondly, the net income and profits derived from the use of the letters-patent, or what he termed the patentee's profits, and found that the administratrix was entitled to recover one half of one of these sums, whichever in the opinion of the court was deemed proper. The court held that the plaintiff was entitled only to the latter, or patentee's profits, and that the defendant was entitled not only to interest upon his capr ital and a reasonable sum for his personal services, but also to a fair and reasonable profit from the business, — the so- called manufacturer's profit ; and this profit was found to be twenty per cent.^ § 608. Compensation of Labor and Skill. — Ordinarily a surviving partner who closes up the business of the firm as soon as possible after the death of the deceased partner is not entitled to any compensation for so doing ; but if the business is continued with a view of making the most profit- able disposition of the assets, and this is done with the knowledge of the representatives of the deceased partner, 1 Freeman v. Freeman, 142 Mass. 98. 414 LAW OF EXECUTORS AND ADMINISTRATOfiS. the surviving partner may be entitled to compensation for his services in closing up the estate.^ § 609. Continued Business affecting Creditors. — Since thC partnership is dissolved by the death of a partner, his estate is not liable for debts contracted by the surviving partner carrying on business subsequent to his death.^ Nor is it necessary that the surviving partners or representatives of the deceased partner should give notice of the dissolution in order to avoid further liability, even though one of the sur- viving partners fraudulently uses the name of the late firm to obtain money or goods from a customer of the old firm who did not know of the death of the deceased partner.* If the administrator after the death of the deceased partner joins the surviving partner in continuing the business, his dealings with strangers do not affect the estate with any liability to creditors ; but the executor or administrator becomes himself personally liable on such debts.* If, however, he contracts these debts while he is carrying on the business of the de- ceased partner with the surviving partners by direction of the deceased partner, or by direction of those who are entitled to the estate, he is entitled to indemnify himself for these debts out of the estate.^ § 610. Estate bound by Executor, when. — As a conse- quence of this right to indemnification, it is held that a credi- tor whose debt was thus contracted by the executor has the right to stand in the place of the executor, so far as this right of indemnification is concerned, and may therefore 1 Brown V. McFarland, 41 Pa. St 129; Beatty u. Wray, 19 Pa. St. 516; Schenkl v. Dana, 118 Mass. 238; Robinson v. Simmons, 146 Mass. 174; Freeman v. Freeman, 142 Mass. 98. 2 Marlett v. Jackman, 3 Allen, 290; Tyrrell v. Washburn, 6 Allen, 466; Bacon v. Pomeroy, 104 Mass. 582. 3 Marlett v. Jackman, 3 Allen, 290; Vulliamy v. Noble, 3 Meriv. 614; Washburn v. Goodman, 17 Pick. 519. * Bradley v. Brigham, 144 Mass. 183. 6 Lindley on Partnership, *604, *605. SETTLEMENT OF PAETNEESHIP ESTATES. 415 subject the estate, or so much of it as the testator has di- rected to be emploj'ed in his business to the payment of his debt. This is said by Mr. Lindley, in his -work on Partner- ships, to be on the theory that a trust fund expressly devoted to the purpose of carrying on the business is created by the direction of the testator as to the business. Unless such a fund exists, the right of the creditor to look to the estate for his debt would fail.^ When a deceased partner directs by will or otherwise that his business shall be continued, he sub- jects only that portion of his estate which is already embarked in the business, or which he directs to be so embarked, to the payment of the partnership debts, unless he expresses or clearly implies an intention to subject his general assets to those debts.^ If the business is so continued by the executor, and the firm goes into bankruptcy, the executor may prove against the joint creditors for all the assets of the estate which he wrongfully put into the business ; for that money was trust money unlawfully used, but for all that he right- fully put into the business under the direction of the testator, he cannot prove.^ § 611. Executor as Partner. — If the partnership articles contain an agreement that the executor of the deceased partner shall take the place of the testator in the partnership, or give him an option to take such place, this alone does not constitute the executor a partner or continue the liability of the estate for losses. There should be some act of the executor by which he joins the partnership ; and this, if it is done by the direction of the testator, subjects the estate, as has been already seen, to liability to the creditors of the firm, or to losses of the firm.* 1 Lindley on Partnership, *606, *607, *609; Jones v. Walker, 13 Otto, 444; Smith v. Ayres, 101 U. S. 320. 2 Johnson, in re, 16 Ch. D. 548; Pitkin v. Pitkin, 7 Conn. 307; Burwell V. Mandeville, 2 How. 560: Jones v. Walker, 103 U. S. 444; Lindley on Partnership, *609. 8 Lindley on Partnership, *608, *609; Ex parte Garland, 10 Ves. 110. * Laughlin v. Lorenz, 48 Pa. St. 275; 416 LAW OF EXECUTORS AND ADMINISTRATORS. But in a case iu Massachusetts it was held that where the part- nership was formed with a capital stock consisting of transfer- able shares, and certificates of shares were issued, and it was stipulated in the agreement of partnership that " the decease of a member of the association shall not work a dissolution of it, nor shall it entitle his legal representatives to an ac- count or to take any action in the courts or otherwise against the association or the trustee for such ; but they shall simply succeed to the right of the deceased to the certificate and the Shares it represents, subject to this declaration of trust," this clause continued the liability of the estate for losses of the partnership ; and that a member of the association who had been sued and compelled to pay a partnership debt might maintain a bill in equity for contribution against the repre- sentatives of the estate of the deceased partner.^ § 612. Good-will and Name of Partnership. — The ques- tions arising about the good- will and use of the partnership name, after the death of a partner, are complicated and ob- scure. It seems, however, settled that if the good-will or name of the business is sold, the price received for it is assets of the firm, and does not belong to the survivor.^ And the same would seem to be true in regard to the use of tlie part- nership name, and any trademarks belonging to the late firm.^ If any of these are not sold, the question arises, what are the rights between the representatives of the deceased partner and the surviving partner. The good-will of the late partner- ship arises largely from the use of the partnership name, or continuance of business in the same locality. The latter of these the surviving partner may of course do, unless re- strained by agreement ; * and there are English decisions to 1 Phillips V. Blatchford, 137 Mass. 512. 2 Lindley on Partnership, *443; Wedderburn v. Wedderburn, 22 Beav. 104; Smith v. Everett, 27 Beav. 446; Holden v. McMakin, 1 Pars. Sel. Cas. 270; Musselman's App., 62 Pa. St. 82. ' Lindley on Partnership, *444-*447. 4 Musselman's App., 62 Pa. St. 82. SETTLEMENT OP PARTNERSHIP ESTATES. 417 the effect that he may do the former, and restrain the execu- tors or administrators from using the partnership name ; ^ in which case he would have practically all the benefits of such good-will. And if the partnership name is not sold and the surviving partner winds up the business of the firm, he is not obliged to account in any way for the value of the firm name.^ § 613. statute as to Use of Firm Name. — There is in Massachusetts a statutory provision regulating the use of the names of late partners, by which it is provided that no person doing business in that Commonwealth shall use the name of another person in the designation, either in whole or in part, of an existing partnership, whether the person be living or dead, without his consent or that of his legal representa- tives ; ^ and the executors or administrators are the personal representatives who must give such consent. If there are none, and none can be appointed because the estate has been settled, it has been held that the use of the name cannot be enjoined by an heir of the deceased, especially if the right to use the name has been assigned to another.* If after the death of a partner the administrator of his estate consents in writing, under the statute, to the use of the name by, and assigns the right to use it to, the surviving partners, who continue in the business, a joint bill in equity will lie by the administrators and the other partners to restrain strangers from using that name.® 1 Webster v. Webster, 3 Swanst. 490; Lewis v. Langdon, 7 Sim. 421; Lindley on Partnership, *445, *446. 2 Bowman v. Floyd, 3 Allen, 78. 8 Mass. Pub. Sts. c. 76, § 6. * Lodge V. Weld, 139 Mass. 504; Bowman v. Floyd, 3 Allen, 76. s Morse v. Hall, 109 Mass. 410. 27 418 LAW OP EXECUTORS AND ADMINISTRATORS. CHAPTER XXIII. TITLE OP AND ACTIONS BY EXECUTORS AND ADMINISTRATORS. § 614. Origin of Title of Executors and Administrators. Powers of Executors before Pro- bate. Sucli Powers in United States. Powers of Administrator before Grant of Letters. Power to bring Suit before Grant of Letters. Special Titles, donatio causa mortis. Validity as against Executor or Administrator. Delivery completing Gift causa mortis. 622. Of Property fraudulently con- veyed. Of Property taken from Deceased by Fraud. Of Deposits in Savings Banks. Such Deposits in Trust. Actions to recover such De- posits. Of Gifts in General; between Husband and Wife. 615. 616. 617. 618. 619. 620. 621. 623. 624. 625. 626. 627. § 628. Of Mortgages ; Mortgagor ap» pointed Executor. Eights of Personal Representa- tives of Mortgagor and Mort- gagee. Bills and Notes ; Demand before Appointment of Executor. Suits on Notes payable to Bearer. Suits between Successive Admin- istrators. Liability of Executor to Admin- istrator de bonis non for Pro- ceeds of Real Estate. Liability of Administrator de bonis non to preceding Admin- istrator for Money advanced. Suits by Executors and Admin- istrators. Suit, when in Personal and when in Eepresentative Capacity. 637. Survival of Actions. 638. Protest not necessary. 639. Proof of Representative Char- acter. 640. Remedies in Equity. 629. 630. 631. 632. 633. 634. 635. 636. § 614. Origin of Title of Executors and Administrators. — A fundamental distinction exists between the title of the execu- tor and that of the administrator to the estate of the deceased. The title of the executor is derived from the will, and vests in him immediately upon the death of the testator, although probate of the will is necessary in order to provide legal evi- dence of the title ;^ while the title of the administrator is de- 1 Rand v. Hubbard, 4 Met. 256, 257; Shirley r. Healds, 34 N. H. 407; Johns V. Johns, 1 McCord, S. C. 132. ACTIONS BY EXECUTORS AND ADMINISTEATOES. 419 rived wholly from tlie grant of letters of administration, and till such grant tlie title to the personal property remains in abeyance, but after the grant it relates back to the death of the intestate.^ § 615. Powers of Executors before Probate. — This theory of the origin of the title of an executor has led, in England, to the position that an executor may exercise before probate most of the powers belonging to his title to the property of the deceased ; and this result naturally follows, for as the pro- bate of the will is only formal evidence of the title, such as is necessary to be produced in a court of law, it follows that any acts in pais may legally be performed by the executor before he has received such probate.^ Thus it is said, in England, that an executor may before probate pay and receive debts, and make good releases there- for,3 or may collect the estate of the deceased,* and may enter peacefully into the house of the heir for that purpose, and to take specialties and other securities for the debts due to the deceased ; or he may distrain for rent due to the testator ; and if before probate the day occur for payment upon a bond made to or by the testator, payment must be made to or by the executor, though the will be not proved, upon like penalty as if it were. So he may sell or give away, or otherwise dispose of goods or chattels of the testator before probate ; he may assent to or pay legacies, may enter on the testator's term for years, and may gain a settlement by residing in the parish where the land lies.^ § 616. Powers of Executors before Probate in the United States. — How far these principles have been adopted in the 1 Rand v. Hubbard, 4 Met. 256, 257; Jewett v. Smith, 12 Mass. 309; Wras. Ex'rs, 293, 302, 404. 2 Wankford v. Wankford, 1 Salk. 306; Rand v. Hubbard, 4 Met. 256, 257; Wrns. Ex'rs, 302, 303. 8 Wankford v. Wankford, 1 Salk. 306; Rand v. Hubbard, 4 Met. 257. * Godolph. Pt. 2, c. 20, § 1. 6 Wrns. Ex'rs, 302, 303. 420 LAW OF EXECUTORS AND ADMINISTRATORS. United States is not clear. It is said, in Eand v. Hubbard, by Mr. Chief Justice Shaw, that it may well be admitted that these powers which an executor has at common law before probate, are to be considered as somewhat modified and res- trained by the laws of Massachusetts, and other States, requir- ing an executor to give bond before entering upon the duties of his office.^ In another case it was held that an executor could not, before probate, make a valid assignment of a mort- gage and promissory note payable to the testator and signed by the judge of probate, so as to release the judge from his debt and qualify him to take probate of the will, the court holding that the assignment by the executors before probate was irregular and effected no change of ownership.^ And the tendency of the authorities as well as the wording of the statutes seems to indicate that in the United States the executor has no right to act in regard to the estate until he has been duly qualified by the court, at least so far as selling or transferring the estate. Thus, Parker, J., in Kittredge v, Folsom,^ says : " It may well deserve consideration whether, under our statute, which provides that no person shall inter- meddle with the estate of any person deceased, or act as the executor or administrator thereof, or be considered as having that trust, until he shall have given bond to the judge of pro- bate, an individual named executor can do any act as such until after probate of the will." And the statutes of most States provide that every executor shall, before entering upon the duties of his trust, give bond to the judge of probate. The result of these provisions would seem to be to place the executor, before probate, upon the same footing as an adminis- trator ; whicli will be considered in a later section.* A distinction has been attempted between such acts as originate in the exedutor, such as selling part of the estate or 1 Rand v. Hubbard, 4 Met. 257. 2 Gay V. Minot, 3 Cush. 354. Cf. Taylor v. "Woburn, 130 Mass. 494. s 8 N. H. 110, 111. 4 Infra, § 617. ACTIONS BY EXECUTORS AND ADMINISTRATORS. 421 otherwise entering upon its administration before probate, and the merely passive representation of the estate so as to receive notice of non-payment of a note at maturity on which the de- ceased was an indorser. It has been held in some cases that such a notice might be legally sent to the executor, and would then bind the estate, as will be seen in a succeeding paragraph ;^ but probably this is more from the necessity of the case than from any principle similar to the one above stated. If there is a doubt as to the validity of a will, or its due execution, and that point is in litigation, the executor named in the will certainly does not represent the estate, even as to receiving notices.^ § 61 7. Powers of Administrator before Grant of Letters. — Until the grant of letters, as has been said, an administrator has no title to the goods of the deceased. His case is there- fore different from an executor ; and he cannot sell and make a good title to any part of the estate, or receive payment of debts and give a good discharge, or otherwise intermeddle with the estate, before he has received his appointment as administrator and has qualified by giving the proper bond. 3 Yet many acts prior to such grant are confirmed and legal- ized by the subsequent grant of letters, if such acts were done by the administrator for the benefit of the estate.* Thus, where one receives payment of a debt and then obtains let- ters of administration, he must account for the amount re- ceived, and if he gives a receipt and discharge of the debt when he receives payment, he cannot, after appointment as administrator, sue on the debt.^ So if one intermeddle with the estate, and do acts in its management which would subject him to an action of tort as executor de son 1 Infra, § 630. « piandrow. In re, 92 N. Y, 256. 8 Wms. Ex'rs, 405, 406. * Wms. Ex'rs, 407. 6 Alvord V. Marsh, 12 Allen, 603; Shillaber ». Wyman, 15 Mass. 322; Hatch V. Proctor, 102 Mass. 353. 422 LAW OP EXECUTORS AND ADMINISTRATOES. tort, he legalizes those acts and bars the action by subse- quently taking administration.^ But an administrator can- not pass a valid title to any portion of the estate before appointment, because his title to the property is derived wholly from his appointment ; ^ but if he undertakes to sell personal estate before taking administration, and the sale is confirmed by both parties after administration is granted, and no intervening rights of third persons have ac- crued, the administrator can recover the price of the property sold from the purchaser.^ Before the grant of letters, his acts have as much validity as those of an executor de son tort, which have been already discussed.* § 618. Power to bring Suits before Probate or Grant of Letters. — As against persons having no title to the estate, — that is, as against mere wrong-doers, — either an executor or an administrator may bring and maintain actions, either of trover or trespass or replevin, for any injury to personal estate which has been in his actual possession ; for these actions are in their nature possessory, and a prima facie case is made out by showing mere possession, and injury or conversion ; ^ and, if the property so converted has been sold, either may waive the tort and sue in contract, for money had and received, for the value of the property converted or taken away.® As against persons claiming title to goods taken from the estate, the case is different, for the executor or administrator must be prepared at the trial to show his title by his letters ; ^ and the same is true of any case where he relies upon a con- structive possession, never having had the actual possession ; for the constructive possession, even as against a wrong-doer, 1 Shillaber v. Wyman, 15 Mass. 324; Andrew v. Gallison, id. 325. 2 Wms. Ex'rs, 405, 408. » Hatch v. Proctor, 102 Mass. 353. * Supra, §§ 246, 248. 6 Hatch V. Proctor, 102 Mass. 353; Wms. Ex'rs, 305. « Hatch V. Proctor, 102 Mass. 353; Wms. Ex'rs, 305, 306, 308, 309. 1 Rand v. Hubbard, 4 Met. 256, 261. ACTIONS BY EXECUTORS AND ADMINISTRATORS. 423 depends upon the title, which must be proved at the trial by the letters. The principle before alluded to, that an executor gets his title from the will, while an administrator gets his from the grant of letters, results in this rule, that while an administra- tor cannot begin a suit till the grant of letters, an executor may begin any suit before probate, and it is sufficient if he is prepared with his letters at the trial of the case. And this is true as well in cases where he has never had the actual posses- sion of the goods as in any other, for his title as executor draws to it the constructive possession of the goods, which will be sufficient to support the action, and may be proved at the trial by the probate of the will ; ^ and the same principles apply to bills in equity .^ As to suits by an administrator before grant of letters, except for property taken out of his actual possession by a wrong-doer, the rule is that an adminis- trator cannot even begin a suit before the grant of letters ; ^ but it has been held that an administrator may file a bill in equity before he has obtained grant of letters, if he alleges in the bill that the letters have been granted to him.* The inability of an executor or administrator to sue in a State in which he has not obtained grant of letters has been already considered.^ Cases arise where it is necessary for the protection of the property that some one should collect and guard it, to preserve it for administration, no person yet having been appointed ad- ministrator, and there being urgent need of such preservation. In such a case, on application of a creditor, or presumably of 1 Rand v. Hubbard, 4 Met. 256, 261 ; Pelletreau v. Rathbone, Saxt. (N. J.) 331; Hunt v. Stevens, 3 Taunt. 113; Blainfield v. March, 7 Mod. 141; Wms. Ex'rs, 305, 306, 308, 309. 2 Humphreys v. Humphreys, 3 P. Wms. 351; Newton v. Metrop. Ky. Co., 1 Dr. & Sm. 588. 8 Rand v. Hubbard, 4 Met. 256, 261. * Humphreys v. Ingledon, 1 P. Wms. 753 ; Wms. Ex'rs, 405, 406. 6 Supra, §§ 564-567; Porter v. Trail, 30 N. J. Eq. 106. 424 LAW OP EXECUTORS AND ADMINISTRATOES. any one interested in the estate, a court of equity will appoint a receiver to collect the property and preserve it for the duly appointed administrator.^ § 619. Special TiUes ; Donatio causa mortis. — There are several special subjects deserving mention in regard to the property of executors or administrators which will now be considered. It has already been said that the only property which an executor or administrator has to administer is that which be- longs to the deceased at the time of his death.^ This state- ment excludes from the administration all property which has been conveyed away by the deceased before his death, unless the conveyance was such that creditors have a right to set it aside. The question as to this right arises most frequently in cases where the deceased has made a gift either in view of his approaching death,, a donatio causa mortis, as it is termed, or a gift inter vivos, or where he has made a conveyance which is fraudulent as to creditors, being made for the purpose of preventing them from asserting their rights either by attach- ing the property or in other ways. As to a gift causa mor- tis, even if it be valid, it is still subject to the right of the administrator or executor to recover the property for the pay- ment of debts if the other assets do not equal the debts ; or as it is stated in a case in Massachusetts, the donee causa mortis takes his title to the property subject to the contingent right of the administrator to reclaim it upon the death of the donor, and is bound to have it forthcoming when called for by the administrator, in case it is required for the payment of debts.^ If he does not do so, the executor or administrator may have a bill in equity to set aside the gift.* And such a suit is not I Flagler v. Blunt, 32 N. J. Eq. 518. « Supra, § 315. 8 Mitchell V. Pease, 7 Cush. 353; Chase v. Redding, 13 Gray, 420; Pierce v. Boston Savings Bank, 129 Mass. 433; Lewis v. Bolitho, 6 Gray, 138. ^ Chase v. Redding, supra. ACTIONS BY EXECUTORS AND ADMINISTRATORS. 425 barred because the time for creditors to bring suit against the estate has elapsed, if the claims of the creditors have been put before the administrator, and allowed by him, since they are valid debts against the estate.^ It has been held that if the estate is represented insolvent, and the claim of a creditor is allowed by the commissioners sufficiently large to more than cover the other assets, a donee causa mortis cannot contest the validity of that claim, since he is bound by the judgment of the commissioners, being in privity with the estate by virtue of the gift, and therefore being represented by the administrator in the insolvency pro- ceedings.2 This last case seems to give the donee causa mortis a sort of standing among those interested in the estate of the deceased; but this position has been expressly denied in a later case,* in which the donee delivered over to the adminis- trator the property, with an agreement that the delivery should not impair his rights, and the property was included by the administrator in his inventory, and was finally distributed to the heir of the intestate by decree of the court. The admin- istrator appealed from this decree, but did not prosecute his appeal, and the donee petitioned to be allowed to take up the appeal. The court considered whether the petitioner was one aggrieved by the decree, and held that he was not, saying : " The petitioner held this property, if at all, by a gift which took effect at the death of the intestate, and then vested the property in him. Of that property he could only be deprived by the judgment of a court of common law. The judgment of a court of probate was as to this petitioner res inter alios acta, by which he was not concluded and by which his rights could not be impaired." It must be considered as the better rule that the donee is not affected by any decree of the probate court, since he has no right to appear in that court;* and probably the real effect of the former decision is only that the 1 Chase v. Bedding, 13 Gray, 420. ^ Mitchell v. Pease, 7 Cush. 353. * Lewis V. Bolitho, 6 Gray, 137. ■* Lewis v. Bolitho, supra. 42B LAW OF EXECUTORS AND ADMINISTRATORS. donee is bound to redeliver the property if, in the regular course of administration, the property is needed to pay debts. § 620. Validity of Gift causa mortis as against Zizecutor or Administrator. — If the estate is solvent, the further question arises between the donee and the executor or administrator, representing the legatees or distributees of the estate, whether the donation is valid ; for if it is not, of course the property falls into the estate and is to be administered as assets, while if the gift is valid, the donee holds the property against the legatees and distributees. The general principle is that a gift made by one in contemplation of death, of money or other property capable of passing by delivery, is valid, if there is a clear intention to give the property, and an ac- tual delivery at the time in contemplation of death ; the gift is inchoate and revocable until the death of the donor, and is void if he recovers, but if the gift is completed by his death, the title is good without any administration.^ The principal question in regard to the validity of such a gift, is the question of delivery. This question has arisen in several cases in Massachusetts in regard to savings-bank books ; and it is now decided in that State, that a delivery of the savings-bank book, either with or without an assignment of the deposit, is a good delivery, and vests a title to the fund which is good against the administrator or executor, except so far as the money is needed to pay debts.^ If, however, the gift consists in part of bank books and part of money, and the bank books alone are delivered, the whole gift fails, since the partial non-delivery vitiates that portion of the gift, and if a part fails the whole fails.^ 1 Parish v. Stone, 14 Pick. 203, 204. 2 Pierce v. Boston Savings Bank, 129 Mass. 432, 484; Kiugman v. Perkins, 105 Mass. Ill; Foss v. Lowell Five Cents Savings Bank, 111 Mass. 285; Sheedy v. Roach, 124 Mass. 472; Davis v. Ney, 125 Mass. 590. " MoGrath v, Reynolds, 116 Mass. 568. ACTIONS BY EXECUTORS A^^D ADMINISTRATOES. 427 A gift causa mortis cannot be completed Tsy any instrument of assignment or conveyance, but only by delivery, and mere symbolical delivery is not enough.^ Such a gift may be made by a husband to his wife,^ and may be made by a married woman in Massachusetts.^ § 621. Delivery as completing donatio causa mortis. — The delivery of a promissory note, either with or without indorse- ment, is sufficient delivery to constitute a gift causa mortis;* and the donee may maintain a suit on the note in the name of the executor or administrator without his consent.^ But a promissory note of the donor is not a valid gift, being only a promise to pay money.® Delivery to a third person for the donee, to be given to the donee after the death of the donor, constitutes a sufficient delivery, if it is consummated by a delivery to the donee after the death of the donor, in accord- ance with the wishes of the donor.'^ In case an executor or administrator thinlis a gift causa mortis is invalid, he should bring an action of trover against the donee after demand.* § 622. Of Property fraudulently conveyed. — A similar right and duty of recovery for the benefit of creditors devolves upon the executor or administrator in regard to property conveyed by the deceased in fraud of his creditors. The administrator or executor represents in such cases the creditors of the de- ceased, as well as his heirs and legatees or distributees, and he is not bound by the conveyance, but stands exactly as the creditors of the deceased would. Such a bill may be main- tained to follow either real estate or personal property which 1 McGrath v. Reynolds, 116 Mass. 568 ; Parish v. Stone, 14 Pick. 198, 203; Sessions v. Moseley, 4 Cush. 87, 92; Coleman v. Parker, 114 Mass. 30. 2 Whitney v. Wheeler, 116 Mass. 490. 8 Marshall v. Berry, 13 Allen, 45. * Grover v. Grover, 24 Pick. 261; Wright v. Wright, 1 Cow. 598; Sessions v. Moseley, 4 Cush. 87 ; Bates v. Kempton, 7 Gray, 382. 6 Bates V. Kempton, supra. « Smith !'. Smith, 30 N. J. Eq. 564; Voorhees v. Woodhull, 4 Vroom, 498. ' Marshall v. Berry, 13 Allen, 45. 8 Whitney v. Wheeler, 116 Mass. 490. 428 LAW OP EXECUTORS AND ADMINISTRATORS. can be traced or identified, such as notes, mortgages, &c.^ If such a suit is commenced within the time limited for suits against executors, and the estate is represented insolvent, the suit is not barred by the lapse of the limited time without any creditor filing his claim, since the property recovered would be new assets, against which the creditors might proceed anew.^ The investigation of what conveyances are fraudulent as against creditors, would be beyond the scope of this work. It is sufficient to say that in most States any conveyance made without consideration is considered fraudulent and voidable by creditors whose debts existed at the time of the conveyance ; ^ and as to subsequent creditors, it is voidable if it is fraudulent in fact.* This rule, however, is not unanimously adopted, as in some States a distinction is drawn between voluntary conveyances made when the grantor is solvent and those made when he is insolvent. Thus in Massachusetts and other States it is a well-established rule that if a person conveys away his prop- erty without consideration when he is rendered actually insol- vent by the conveyance ; i. e., when his property and probable means of payment, without the portion so conveyed, are not sufficient to pay his debts, his creditors may set aside this conveyance and appropriate the property to their debts.^ Any conveyance made with an actual intention to defraud creditors is voidable.® If the sale was of such a character as to be absolutely void, e. g., if the vendor was not of suf- ficient capacity to make a contract of sale, or if the sale 1 Parker v. Flagg, 127 Mass. 28; Welsh v. Welsh, 105 Mass. 230; Gilson V. Hutchinson, 120 Mass. 32; Gibbens v. Peeler, 8 Pick. 254; Pease V. Pease, 8 Met. 395. But see Munn v. Marsh, 38 N. J. Eq. 410. 2 Welsh V. Welsh, supra. " Hasten ». Castner, 31 N. J. Eq. 702; Beade v. Livingston, 3 Johns. Ch. 481. « Claflin V. Mess, 30 N. J. Eq. 211 ; City National Bank v. Hamilton, 34 N. J. Eq. 158. 6 Winchester v. Charter, 12 Allen, 606; McLean v. Weeks, 65 Me. 411; s. c. 61 Me. 277. * Winchester v. Charter, supra. ACTIONS BY EXECDTORS ANI> ADMINISTRATORS. 429 was not completed during his life, the executor or adminis- trator may have an action of tort for the conversion of the goods, after demand upon the vendee.^ § 623. Of Property fraudulently taken from the Deceased. — The executor or administrator also has a similar right of re- covery in case of property which the deceased has been fraud- ulently induced to part with. Thus, where the deceased was fraudulently induced to indorse promissory notes to a third person, it was held that the executor might pursue those notes in the hands of the third person, and that his remedy was in equity, and that he had not an adequate remedy at law ; that an action of tort would not be a satisfactory rem- edy, because tlie executor was entitled to the specific securi- ties; that an action of replevin would not lie, because the notes had been sued on and judgment obtained, and the notes, being filed in court, could not be given up to the cus- tody of the executor ; and that an action of contract would not be sufficient, because he is entitled to the notes to use as evidence in the case, and also to settle the estate.^ § 624. Of Deposits in Savings Banks. — A species of prop- erty which has given rise to much litigation in the settlement of estates is money deposited in savings banks. It has al- ready been seen that if a donatio causa mortis has been made of the money, the donee may, after the death of the donor, sue the bank for it in the name of the administrator ; and the money does not form any part of the assets of the estate.^ The same principles apply when the deposit was a gift inter vivos. The intention to give and delivery are necessary to perfect the gift. It is held that a delivery of the bank book to the donee with an assignment, is good delivery to complete the gift ;* and so is the deposit in the name of the donee, if 1 Kimball v. Currier, 5 Gray, 458. « Sears v. Carrier, 4 Allen, 339. « Supra, § 620. * Foss V. Lowell Five Cents Savings Bank, 111 Mass. 287 ; Davis ». Ney, 125 Mass. 590. 430 LAW OP EXECUTORS AND ADMINISTRATORS. it is done with the intention of making a gift to him. Direct evidence that it was done with such intention is competent, as well as inferences from all the facts of the case ; and the later cases leave the subject of intention and delivery largely to the jury.i In one case it was held that a deposit in the name of the donee " subject to the order of " the donor, might be a valid gift, the jury having found that the money was de- posited as a gift ; and it was held that the mere fact that the deposit was subject to the order of the donor was not conclu- sive against a gift at some later time, there being evidence to warrant the finding of such later gift. It seems to be inti- mated that, if the phrase " subject to the order of " the donor was alone, it would destroy the gift.''* § 625. Deposits in Trust in Savings Bank. — A deposit in the name of the depositor as trustee for another may or may not be a valid gift of the equitable interest to the person so named, according as the evidence shows, the question being one of fact. Notice of the deposit to the presumed donee is generally decisive evidence of the intention to make a gift.^ And it has been held that lack of such notice was decisive against such intention ; though whether such a decision would now be upheld is questionable.* A gift of a savings-bank deposit may be made to a stranger in trust ; and if such gift is completed by assignment of the bank book to the trustee and delivery of it to him, it vests the title in him as against the administrator or executor.^ The trust may be evidenced by a declaration in words, as well as in writing, as it does not 1 Idev. Pierce, 134 Mass. 260; Gerrish v. New Bedford Inst, for Sav- ings, 128 Mass. 160; Fisk v. Cuahman, 6 Cush. 26. 2 Eastman v. Woronoco Savings Bank, 136 Mass. 209. " Gerrish v. New Bedford Inst, for Savings, 128 Mass. 159; Ray ». Simmons, 11 R. I. 266; Wall v. Provident Inst., 3 Allen, 96. See McClus- key V. Provident Inst, 103 Mass. 300. * Clark V. Clark, 108 Mass. 522. See Gerrish i>. New Bedford Inst, for Savings, supra. ^ Davis V. Ney, 125 Mass. 590. ACTIONS BY EXECUTORS AND ADMINISTRATORS. 431 relate to real estate ; ^ and may be to pay the income to the donor for life, or to pay so much as the donor wishes to draw out during life, and, after his death, the remainder to another. Such a trust gives the donor the equitable right to whatever money he wishes during his life ; and if any is left, it goes to the person designated.^ § 626. Actions to recover such Deposits. — The donee of a savings-bank deposit has a right to use the name of the ad- ministrator without his consent to bring suit against the bank for the deposit.^ The administrator is still the real plaintiff, however, and cannot be summoned in by the bank as a defendr ant to contest the right of the donee. If such a contest is to be made, the donee should be summoned in to contest the claim of the administrator.* The bank book is very important in such cases, being the sole and absolute evidence of title to the deposit ; and as most savings banks by their by-laws pro- vide that, in case the book is lost or stolen from the de- positor, he shall immediately notify the bank, it is held that a payment to one who produces the bank book protects the bank from action by the depositor, in the absence of such notice, although the person by whom the book was presented stole it and forged an assignment, or fraudulently represented himself to be the depositor.^ If administration is granted upon the estate of one who still is alive, a payment to such administrator, even upon his producing the bank book, is void, and the depositor can recover against the bank the amount of the deposit.® Even if the gift of the bank deposit is completed, it is liable to be defeated by the rights of credit- ors existing at the time of the gift. Thus the administrator 1 Davis V. Ney, 125 Mass. 592; Stone ». Hackett, 12 Gray, 227. 2 Davis V. Nay, supra. » Foss V. Lowell Five Cents Savings Bant, 111 Mass. 287; Pierce v. Boston Five Cents Savings Bank, 125 Mass. 593. * Pierce v. Boston Five Cents Savings Bank, supra. 6 Donlan v. Provi^pnt Inst., 127 Mass. 185. « Jochumsen v. Suffolk Savings Bank, 3 Allen, 87. • 4E2 LAW OP EXECUTORS AND ADMINISTRATORS. of one who deposited money in a savings bank in trust for another, in fraud of existing creditors, and to prevent attach- ments, was held entitled to recover the money for administra- tion among the creditors.^ § 627. Of Gifts in General ; between Husband and "Wile. — It may be gathered from the remarks in regard to savings- bank books and gifts causa mortis, that in every case of a gift the right of the donee is subject to tlie rights of credit- ors, and as the adminstrator or executor represents creditors of the estate, as well as legatees or distributees, he may re- cover the gift from the donee when it is necessary for the payment of debts.^ As to proceedings by creditors, no ad- ministrators having been appointed, see Flagler v. Blunt, 32 N. J. Eq. 518. As to the validity of gifts in general, the reader is referred to the discussion of these principles in regard to donations causa mortis, the principles applicable to both classes being the same.^ In regard to gifts by a husband to his wife, the law in Massachusetts at the present time seems to be that a husband may make a valid gift to his wife of his own property, provided he perfects the gift by delivery of the property in such a manner as is necessary in perfecting gifts between other persons, i. e., by manual delivery, if the prop- erty is capable of manual delivery. Thus, when a husband, being in health and not apprehending death, delivered to his wife several United States bonds, saying, "I give them to you ; take them and use them for your own use and support," and this was done in the presence of a witness (which was not necessary, but gave credence to the claim of a gift), and the wife took the bonds and kept them in a box of her own, 1 Wall V. Provident Inst., 6 Allen, 321; s. c. 3 Allen, 96; Fisk v. Cushman, 6 Cush. 23. 2 Mitchell V. Pease, 7 Cush. 353; Chase ». Redding, 13 Gray, 420; Pierce v. Boston Savings Bank, 129 Mass. 433; Lewis v. Bolitho, 6 Gray, 138; Wall v. Provident Inst., 6 Allen, 321; s. c. 3 Allen, 96; Fisk v. Cushraan, 6 Cush. 23; McLean v. Weeks, 65 Me. 411. 8 Supra, § 620. ACTIONS BY EXECUTORS AND ADMINISTBATOES. 433 and there were no creditors of the estate who were unpaid, and the gift was never revoked by the husband, it was held that the gift was valid against the daughter of the deceased claiming as a distributee, and that the administrator should not enter these bonds in his inventory of the estate, nor be charged with them in his account.^ It is to be observed that such a gift is held to be liable to revocation by the husband, because the possession of the wife is the possession of the husband ,2 and the gift, which depends upon the transfer of possession from the donor to the donee, is not consummated till the death of the donor severs those possessions and gives a legal standing to the possession of the vrife. The validity of such gifts as against heirs and distributees, the invalidity of such gifts as against creditors of the husband, after his death as well as before, and the invalidity of such gifts as against the husband if he chooses to recall them, are well settled in Massachusetts ;8 and probably the same principles would allow of a valid gift to the husband from the wife ; or rather, if a wife puts her husband in possession of any of her separate estate, whether as a gift or a loan, she will find it impossible in Massachusetts to recover it either from him or from his executors or administrators.* It seems to follow from the principles above stated, that the gift of the husband to the wife cannot be valid during his life, because her posses- sion is his possession, and although the statute relating to her separate estate authorizes her to " receive property as if sole,"^ yet a subsequent section provides that nothing con- 1 Marshall v. Jaquith, 134 Mass. 138. * Marshall v. Jaquith, supra. 8 Marshall v. Jaquith, supra; McCluskey v. Provident Inst, for Sav- ings, 103 Mass. 300 ; Fisk v. Cushman, 6 Cush. 20 ; Adams v. Brackett, 5 Met. 280; Whitney v. Wheeler, 116 Mass. 490; Spelman ». Aldrioh, 126 Mass. 113 ; Hamilton v. Lane, 138 Mass. 358. * See Fowle ». Torrey, 135 Mass. 87 ; Marshall v. Berry, 13 Allen, 45, Kneil v. Egleston, 140 Mass. 202. « Mass. Pub. Sts. c. 147, § 1. 28 434 LAW OF EXECUTORS AND ADMINISTRATORS. tained in the preceding section shall authorize a husband or wife to transfer property, one to the other ;i and therefore her position in this regard stands as at common law, and there is no such change of possession as completes a gift of per- sonal property until after the husband or wife has died. § 628. Mortgage ; appointing Mortgagor Executor. — The principle has been already stated that if the executor or administrator is a debtor of the deceased, his debt is con- sidered discharged and he is held accountable for the amount of it as assets. This rule has been applied to mortgages, with the qualification' that the debtor not only accepts the office, but charges himself in his inventory with the debt as assets. If he does this, the mortgage and debt are thereby dis- charged.^ If, therefore, a mortgagor becomes executor or administrator, and charges his debt in the inventory or account, the mortgage is ordinarily discharged, and any con- veyance of the mortgage by assignment by such executor or administrator vests no title in the assignee.^ What the effect of the executor or administrator refusing to charge himself with the debt would be, does not appear to be settled. In the case above cited,* it is said that such refusal might be cause for removal, and that after such removal an adminis- trator de bonis non might sue the former executor or admin- istrator for the debt ; in which case it seems that the mortgage also would survive.^ There may, however, be equities which will keep the mortgage alive contrary to the general rule. -Thus, it has been said by Mr. Chief Justice Shaw, that per- haps if the executor were to die or be removed before any decree of distribution, or satisfaction of such decree, and it 1 St. 1884, c. 132; Mass. Pab. Sts. c. 147, § 3. 2 Martin v. Smith, 124 Mass. 112; Ipswich Manuf. Co. v. Story, 5 Met. 313. * Ipswich Manuf. Co. v. Story, supra; Tarbell v. Parker, 101 Mass. 165. * Ipswich Manuf. Co. ». Story, supra. ^ See also Winship v. Bass, 12 Mass. 200. ACTIONS BY EXECUTORS AND ADMINISTRATORS. 435 should turn out that though he had credited his debt as assets, yet he had no means to pay and satisfy the amount due on his administration account, it might be held in equity in favor of the sureties on his administration bond, that the mortgage given to secure the same debt should not be deemed to be discharged.^ So, in a case where the material facts were that A. owning a piece of land mortgaged it to B. by an unrecorded mortgage, and by a second mortgage to C, who had no knowledge of the prior mortgage ; A., after the first mortgage note was overdue, became the administrator of B., who had died, and as such administrator brought a bill to redeem against the assignee of the executors of C. The assignee defended on the ground that as A. was both debtor and administrator of B., and had charged himself with the mortgage debt in his inventory, the mortgage to B. was thereby discharged, and therefore could not be redeemed. But the court held that, although as between the adminis- trator and the creditors or distributees of the estate the mortgage was to be considered as discharged and the debt paid, yet this was a legal fiction, and as such should not be allowed to work injustice ; and that in equity, as against the defendant, who bought his mortgage at sheriff's sale subject to the complainant's mortgage, this mortgage would be con- sidered still alive so far as to allow the administrator to redeem the land.^ The principle of this case, as explained in a later case, is that the creditors and distributees have a right to charge the executor or administrator with his debt in his accounts, as a means of collecting it from him, but that this is a right which they might waive, and which a court of equity would not compel them to assert when the results would be inequitable, as they would have been in that case.^ It is to be observed that the origin of the fiction of 1 Ipswich Manuf. Co. v. Story, 5 Met. 313. 2 Kinney v. Ensign, 18 Pick. 232. 8 Leland v. Felton, 1 Allen, 534. 436 LAW OP EXECUTORS AND ADMINISTRATORS. payment was in courts of equity, in order to obviate the injustice arising from the technical inability of an executor or administrator to sue himself at common law; and the origin of the fiction being in equity, its application will be governed by equitable considerations in courts of equity so as not to result in injustice.-' It has been attempted to extend this principle to assignees of the mortgage or grantees of the land. Thus, in one case land subject to a mortgage was conveyed, so subject, and the grantee agreed, as part consideration for the deed, to assume and pay the debt as his own, and save the grantor harmless and indemnified therefrom. Afterwards the grantee was appointed executor of one to whom the mortgage had been assigned, and returned the mortgage as assets of the estate in his inventory, and charged himself with the amount in his final account. The land was then attached by a personal creditor of the executor. Then the executor, as executor, entered for breach of condition of the mortgage, and assigned the mortgage to a third person for full value, and used the proceeds to pay legacies. The attaching creditor then brought a writ of entry against this third person, on the theory that when the executor charged himself with the mortgage it was thereby discharged, and the executor then held the land in his original title as grantee clear of incumbrance. The court refused to entertain this theory, because the fact was that the executor of the holder of the mortgage was not the debtor of such holder ; that the agreement in his deed that he would pay the mortgage debt did not make him such debtor, but only gave his grantor a right of action against him, and created no privity with the mortgagee. The court further say that the rule of construc- tive payment will not be applied when it works substantial injustice, unless the case is brought strictly within it.^ § 629. Rights of Personal Representatives of Mortgagor and 1 See supra, § 485. 2 Pettee v. Peppard, 120 Mass. 522. ACTIONS BY EXECUTORS AND ADMINISTRATORS. 437 Mortgagee. — It has already been seen that a mortgagee's inter- est in a mortgage until foreclosure is a personal interest.^ If, therefore, the mortgagee dies, an action to recover possession, or any action relating to the possession, e.^'., trespass quare claus- um, must be brought by his executor or administrator and not by his heirs j^ and this is true whether the action be against the mortgagor or those claiming under him, or against a disseisor,^ or against the heirs of the mortgagee who have trespassed on the land.* So a- bill to foreclose should be brought by the esecutor or administrator.^ But if one of several mortgagees die, the interest vests in the survivor, and he alone can sue on it ; and if it is paid to him, he holds half the money as his own, and half as trustee for the estate of the deceased mort- gagor.® Conversely, the right of redemption of a mortgagor is considered real estate, vesting in his heirs; and they alone, and not the executor or administrator, can bring a bill to redeem the mortgage,^ unless otherwise provided by statute.^ Such a bill may, in Massachusetts, be brought by a widow, both on her title to dower and as administratrix.^ § 630. Bills and Notes ; Demand and Notice, before Appoint- ment of Executor. — Several points of importance arise in regard to the special subject of bills and notes. One of these is, by whom, if a note fall due before any executor or admin- istrator is appointed, the demand of payment should be made in order to hold the indorsers. Some authorities in England are to the effect that if the deceased left a will, the executor 1 Supra, §§ 339, 340; Look v. Kenney, 128 Mass. 284. 2 Smith V. Dyer, 16 Mass. 18 ; Dewey v. Van Deusen, 4 Pick. 19 ; Shelton v. Atkins, 22 Pick. 71; Root v. Bancroft, 10 Met. 49; Root v. Stow, 13 Met. 5. » Richardson ». Hildreth, 8 Cush. 225. * Palmer v. Stevens, 11 Cush. 147. 6 Stover V. Reading, 29 K J. Eq. 152. 6 Mutual Life Ins. Co. v. Sturges, 32 N. J. Eq. 679. ' Smith V. Manning, 9 Mass. 422. 8 Mass. Pub. Sts. c. 181, §§ 39. 40. 9 Robinson v. Guild, 12 Met. 323. 438 LAW OP EXECUTORS AND ADMINISTRATORS. ought to make a demand of payment in order to hold the in- dorsers, even though he has not yet proved the will and quali- fied as executor.! Other authorities hold that there need be no demand until either an executor or administrator has been duly appointed, and that such executor or administrator has a reasonable time after his appointment wherein to make such demand.^ In an early case in Massachusetts, the subject was discussed in relation to the power of an executor appointed in New York to empower a notary in Massachusetts to make such demand without having proved the will in that State.* In a later case in Massachusetts, the facts were that the payee of a promis- sory note died before it was due. The executor named in the will found the note among the papers of the estate on the day on which it was due, not counting the three days of grace. About two weeks afterwards he requested the indorsers to waive their right to demand and notice, which they refused to do. Later still, the will was proved, but the executor re- nounced the trust and never qualified, and an administrator with the will annexed was appointed, who immediately upon finding the note made demand of payment upon the maker, and payment being refused sent notice thereof to all the in- dorsers, and subsequently brought suit against them. The court held that when the holder of a negotiable promissory note has died, and no executor or administrator has been appointed and qualified to act at its maturity, the indorsers remain liable, and will continue to be liable, if presentment is made to the maker in a reasonable time after the due appoint- ment of an executor or administrator, and notice of the dis- honor of the note is seasonably sent to them afterwards.* The same point was discussed ohiter in a case arising under 1 Byles on Bills, 29; Chitty on Bills, 6th ed., 247. 2 Bac. Abr. Merchant, M. 7; Eoscoe, Bills of Exchange, 147. 8 Rand v. Hubbard, 4 Met. 260, per Shaw, C. J. * White V. Stoddard, 11 Gray, 258. ACTIONS BY EXECUTORS AND ADMINISTRATOES. 439 the statutory liability of towns for accidents caused by defec- tive highways. The statute provides for a notice to be given to the town within a limited time by the person injured, or by any other person in his behalf. The injured person in this case, a minor, died within that time, and his father, having the right to administration, gave the notice, and was after- wards appointed administrator, and sued for the injury to his intestate. The court discussed the cases of White v. Stoddard and Rand /y. Hubbard, and held that the inference from them was, that although it was not laches that demand and notice were not made at the maturity of the note, when there was no person legally authorized to collect the note, yet that a demand and notice at maturity by one who had the right to administer the estate and who afterwards did administer it, would be suf- ficient. The court further held that, under the above statute, the notice by the father was sufficient, but did not decide the case solely on the ground that he was entitled to administer, but rather upon the statute.^ In case the maker of a note dies before maturity, the de- mand should be made upon the executor or administrator, if there is any, although it has been held in Massachusetts that if the note falls due within the year during which the executor or administrator is protected from all liability to pay debts, a demand would not be necessary to hold the indorser, since the demand would be fruitless and an idle ceremony .^ If the indorser is dead, his executor or administrator is entitled to the same notice of non-payment as the deceased would have been entitled to.^ A notice directed to " the estate of " A., and put into the post-office, is not sufficient.* The holder of the note is bound to use only reasonable dili- 1 Taylor v. Woburn, 130 Mass. 494. 2 Hale V. Burr, 12 Mass. 87; Burritt v. Smith, 7 Pick. 291; Oriental Bank V. Blake, 22 Pick. 208. ' Oriental Bank v. Blake, 22 Pick. 208; Massachusetts Bank v. Oliver, 10 Cush. 560. * Massachusetts Bank v. Oliver, supra- 440 LAW OP EXECUTORS AND ADMINTSTEATOES. gence to find out whether an executor or administrator of the indorser has been appointed or not.^ If there has not been any administrator appointed, a notice to the person who is afterwards appointed administrator is not sufficient unless he is one of those interested in the estate ; ^ but if there is a will and an executor who has not yet qualified, a notice to him will bind the estate, though he afterwards refuses to act as executor.* § 631. Suits on Notes payable to Bearer. — In suits on bills or notes, if the note is payable to bearer or indorsed in blank, it may be sued by the administrator in his personal capacity, since he is the bearer, and sues with the consent of the person who is entitled to the proceeds of the note, i. e., himself.* The addition of the word " administrator " to the name of the payee of the note is mere description, and does not change the title to the note.^ One of two joint executors cannot indorse a nego- tiable note made to both as executors.® The executors of an attorney can recover for the services rendered by the deceased to the defendant.'' § 632. Suits between Successive Administrators. — The rem- edies between successive administrators form a subject of much difficulty. The leading principles are that there is no privity of estate between successive administrators or their representatives,^ and that a succeeding administrator de bonis non becomes by virtue of his appointment the representative of the estate, so that he is entitled to call the preceding * Massachusetts Bank v. Oliver, 10 Cush. 560; Goodnow v. Warren, 122 Mass. 83. 2 Mathewson v. Strafford Bank, 45 N. H. 104. ' Goodnow V. Warren, 122 Mass. 82 ; Shoenberger ». Lancaster Savings Inst., 28 Pa. St. 459. * Holcomb V. Beach, 112 Mass. 450; Truesdell v. Thompson, 12 Met. 565; Wheeler v. Johnson, 97 Mass. 39; Gage v. Johnson, 20 Me. 437. 6 Plimpton V. Goodell, 126 Mass. 119. » Smith V. Whiting, 9 Mass. 334. ' Tapley v. Coffin, 12 Gray, 420. 8 Wiggin V. Swett, 6 Met. 197. ACTIONS BY EXECUTORS AND ADMINISTRATORS. 441 executor or administrator or his representatives to account, and to intervene in all proceedings in which such accounts are being settled.^ The most regular way of completing the transfer of the estate and settling the rights of all parties is for the outgoing executor or administrator or his representa- tives to present a final account of the estate, crediting him with the balance paid over to his successor, if any is found due and paid, or with the balance due to him, if he has ad- vanced money to the estate, or debiting him with the balance due by him to the estate.^ At the settlement of this account, the administrator de bonis non has a right to be a party, and to object to any items of the account, and secure its correct- ness.^ If a balance is found due from the former executor or administrator to the estate, the judge of probate will make an order that that amount be paid to the administrator de bonis non ; and upon that decree the administrator may have an action of contract against the outgoing executor or admin- istrator, or his representatives, or he may have an action on his administration bond, against him or them or his sureties. He is not limited by election of one of these rem- edies, and he may sue on the administration bond, and get judgment, and then sue on the decree of the court.* Besides these remedies he could have in most States an order from the probate judge requiring the outgoing administrator to pay over all the estate to his successor, under the same penalty as the court usually has to enforce its decrees.® The preceding remedies are all based upon the accounting between the parties and the ascertainment of a balance due. But the rem- edies of the administrator de bonis non are not entirely de- pendent upon the account. He cannot, however, have a bill 1 Wiggin V. Swett,6 Met. 197; Munroe v. Holmes, 13 Allen, 109; But- trick V. King, 7 Met. 20; Sewall o. Patch, 132 Mass. 326. 2 Storer v. Storer, 6 Mass. 390. 8 Wiggin V. Swett, 6 Met. 197. * Storer v. Storer, 6 Mass. 390. 6 Mass. Pub. Sts. o. 156, §J 14, 31. 442 LAW OP EXECUTORS AND ADMINISTRATORS. in equity to compel the outgoing executor or administrator or his representatives to account, in those States where admin- istration accounts are to be made in the probate court only.^ If, however, without any accounting, the administrator de bonis non can show a clear debt from the former executor or administrator, either of a balance due to the estate or of any specific sum of money which can be definitely ascertained, the administrator de bonis non may have an action at law of contract for money had and received against the former ex- ecutor or administrator or his representatives, to compel the payment of this money by them.^ And if, although the amount due to the estate is definite, yet there is some act of transfer to be done besides the mere payment of money, it seems that the administrator de bonis non may have a bill in equity to enforce the performance of this act by the former executor or administrator or his representatives.^ It appears, therefore, that in those States where probate accounts are cognizable only in probate courts, and not in courts of equity, the administrator de bonis non cannot, except in the instance above specified, proceed in equity. Another remedy is open to the administrator de bonis non, without any accounting, when, as has just been said, a clear debt is due from an outgoing executor or administrator to the estate ; and that is by an action on his probate bond, — in which action, indeed, it is necessary to settle a certain kind of probate account in order to arrive at the damages due to the plaintiff by the failure to account and pay over.* But it may be said gen- erally that, unless the estate has been substantially settled, the remedy is in the probate court.^ Still another remedy exists for the administrator de bonis non, or rather a different form of one, which has before been mentioned, and that is 1 Ammidown v. Kinsey, 144 Mass. 587; Foster v. Foster, 134 Mass. 120. " SewaU V. Patch, 132 Mass. 326; Buttrick v. King, 7 Met. 20. 8 Buttrick V. King, supra. * White v. Ditson, 140 Mass. 351. 6 White V. Ditson, supra ; Ammidown v. Kinsey, 144 Mass. 587. ACTIONS BY EXECUTORS AND ADMINISTEATOES. 443 that, if the preceding executor or administrator died while in office, the administr;ator de bonis non may prove the debt in the settling of the estate of the deceased executor or administra- tor.i Or if the former executor or administrator has wrong- fully delivered any portion of the estate over to another, the administrator may have in appropriate cases, either trover for such part of the estate or contract for money had and received.^ Furthermore, the administrator de bonis non can hold the funds of the estate against a suit by a personal creditor of the removed administrator, who trustees the pro- ceeds of a sale of real estate deposited by the original ad- ministrator with his counsel, if the proceeds so deposited can be identified.^ § 633. Liability of Executor to Administrator de bonis non for Proceeds of Real Estate. — In Massachusetts a question has been raised as to the liability of an executor to a succeeding administrator de bonis non for the proceeds of real estate sold under a power in a will. The cases referred to all arose from, one estate. The executor paid all debts and legacies and costs of administration, and held a residue, composed partly of per- sonal estate and partly of the proceeds of real estate sold under a power in the will. The executor died without having filed a final account. An administrator de bonis non of the original estate was appointed, and brought suit against the sureties on the bond of the executor for the residue of the es- tate, and recovered so much of the residue as was composed of personal estate ; but the court held that under the bond then given — that is, " to administer according to law and the will, all the goods, chattels, rights, and credits, and the pro- ceeds of all his real estate that may be sold for the payment of his debts and legacies " — the sureties were not liable for the proceeds of the real estate, and that the word " legacies " 1 Minot V. Norcross, 143 Mass. 326. 2 Stevens v. Goodell, 3 Met. 34. » Marvel v. Babbitt, 143 Mass. 226. 444 LAW OP EXECUTORS AND ADMINISTEATORS. meant specific legacies, and not residuary legacies.^ The administrator de bonis non then proved the claim for the balance of the residue arising from the sale of the real estate in the probate court, in the settlement of the estate of the de- ceased executor, and the claim was allowed on appeal ; the court saying, that it by no means followed, because the sure- ties were not liable on the bond for the proceeds of the real estate sold under a power in the will, that the executor was not bound to account for such proceeds as part of the estate of the deceased testator which he was bound to administer according to law and the will.^ And it may be considered as settled law that the administrator de bonis non may recover the proceeds of real estate as well as personal estate from the representatives of a deceased executor or administrator, or from an executor or administrator who has resigned or been removed.^ § 684. Liability of Administrator de bonis non to Preceding Administrator for Money advanced. — In the foregoing discus- sion the cases have all been those in which the outgoing ex- ecutor or administrator owed something to the estate which he had been administering, and therefore cases in which he or his representatives have been made liable to the adminis- trator de bonis non. Cases occur, however, in which the es- tate owes the outgoing executor or administrator, — as, for instance, where he has advanced money to the estate, as in some cases he may properly do.* These advances would naturally be settled by retainer by the outgoing executor or administrator or his representatives of funds enough belonging to the estate to satisfy the debt ; but it may be that the personal estate is insuflBcient for that purpose, and then these advances become a charge upon what- ever new assets come into the hands of the administrator de 1 White V. Ditson, 140 Mass. 358. « Minot ». Norcross, 143 Mass. 327. ' Minot V. Norcross, supra; Marvel v. Babbitt, 143 Mass. 226. * -Supra, § 544. ACTIONS BY EXECUTORS AND ADMINISTRATORS. 445 bonis non, even upon the proceeds of real estate sold by him to pay debts ; and this charge is not barred by the statute of limitations.^ Questions have arisen as to the manner of en- forcing this charge. It cannot be asserted by an action at law on an implied contract brought after settling the account of the first executor in the probate court, and ascertaining the amount due to him.^ The matter must be settled in some manner in the probate court ; and the necessary relief has been said to be obtainable by a citation of the administrator de bonis non to account ; upon which citation there would be a hearing, at which the representative of the deceased executor or administrator might ask for an order for the payment of his claim ; and if there is estate in the hands of the adminis- trator de bonis non, the amount will be paid.^ The former cases are those where the outgoing executor or administrator is a debtor or creditor of the estate by virtue of transactions growing out of the settlement of the estate. If the executor or administrator was a debtor of the estate previous to being executor or administrator, the debt is extinguished by his taking the oflBce, and does not revive after his death, resigna- tion, or removal, and he cannot be sued by the administrator de bonis non^ So, if he was a creditor of the estate previous to accepting the office, his claim is extinguished by his taking the ofiice, and he cannot, after his resignation, sue the admin- istrator de bonis non for his claim.^ His only way of collect- ing his claim is by retaining it out of the assets in his hands while he is still executor or administrator. § 635. Suits by Executors and Administrators ; Continuing Suit of Deceased. — Suits by executors or administrators may be divided into three classes : suits begun by the deceased, in 1 Munroe v. Holmes, 13 Allen, 112. 2 Munroe v. Holmes, 9 Allen, 244. 3 Munroe v. Holmes, 13 Allen, 112. < Tarbell v. Jewett, 129,Mass. 464. ^ Prentice v. Dean, 10 Allen, 354. 446 LAW OP EXECUTORS AND ADMINISTEATOES. which the executor or administrator intervenes ; suits begun by the executor or administrator in his official capacity ; and suits by him in his own riglit. As to the first class, it is evident that the cause of action must be one which survives, otherwise the action abates with the death of the plaintiff ; and it is generally the rule, either by statute or decision, that if a party to a suit die pending the suit and the cause of action survive, the executor or administrator shall have full power to carry on the suit ; and if he does not voluntarily do so, he may be cited into court and compelled to, or the action is non-suited.^ If there are several plaintiffs and one die, the suit is carried on by the survivors, and if all die, by the executor or administrator of the last survivor ,2 unless by statute the elecutor or adminis- trator of the deceased is admitted to prosecute with the sur- vivors.3 In a suit in equity, if the plaintiff dies and the cause is capable of revivor, the executor or administrator may carry it on, as in cases at law.* If the cause of action does not sur- vive, the executor or administrator may appear and move to dismiss the action.^ If the suit is by husband and wife in her right, and she dies and the husband is appointed adminis- trator, he may prosecute the suit.® As this right of an exr e'cutor or administrator to come in and prosecute an action depends wholly on statute, it must be confined to the cases covered by the statute, and does not extend to actions for liens, or other extraordinary remedies, unless it is so ex- pressly enacted.^ And if the cause of action does not sur- vive, he cannot come in to prosecute. The rule in this regard 1 Mass. Pub. Sts. c. 165, §§ 5, 6-11; Hunt v. Whitney, 4 Mass. 620 ; Fulton V. Nason, 66 Me. 446; Snow v. Bartlett, 64 Me. 384. " Mass. Pub. Sts. o. 165, §§ 12, 13. » Treat v. Dwinel, 59 Me. 341. « Mass. Pub. Sts. c. 165, § 19. ^ Nettleton v. Dinehart, 5 Cush. 543. ' Pattee v. Harrington, 11 Pick. 221. ' Richards v. Richards, 136 Mass. 126; Fales v. Stone, 9 Met. 316. ACTIONS BY EXECUTORS AND ADMINISTEATORS. 447 is laid down by Shaw, C. J., as follows: "As a general test, an executor or administrator cannot come in and prosecute a suit unless he was in a condition to commence a like suit if it had not been begun by his testator or intestate. And it seems quite clear that he cannot so come in and prosecute unless he is entitled in his representative character to have the fruits of the suit, that is, to have judgment qua executor for the subject-matter of it." ^ So, an executor appointed in one State cannot continue an action in another without taking letters in the latter State.^ . There are generally provisions of statutes by which an ad- ministrator de bonis non may take up any suit begun by a former incumbent of the office. Without such a statute, it has been held that there is no such privity between a former and a succeeding administrator as would allow such substi- tution.3 If, therefore, a woman who is unmarried and execu- trix or administratrix brings suit, and then marries, and her husband becomes joined in the office with her, and she dies and he is appointed administrator de bonis non, under the above statute he may prosecute the action brought by her.* § 636. Suit, 'when in Personal and 'when in Representative Capacity. — As to the second and third class of actions, the important question is, when the executor or administrator should sue in his official capacity, and when he may in his own right. The rule is that for every cause of action which arose during the lifetime of the testator or intestate, the ac- tion must be brought in the official capacity " as executor " or " as administrator," while if the cause of action arose after the death of the testator or intestate, the executor or admin- istrator has his choice of bringing suits either in his official capacity or in his own right.^ The rule is somewhat modified 1 Ferrin v. Kemiey, 10 Met. 295. 2 Kropff V. Poth, 19 Fed. Rep. 200. « Mass. Pub. Sts. c. 166, §§ 11-14; Bro-vra v. Pendergast, 7 Allen, 427. * Brown v. Pendergast, supra. 6 Wms. Ex'rs, 1871; Kline v. Guthart, 2 Pa. St. 491,492, per Gib- 448 LAW OF EXECUTORS AND ADMINISTRATORS. as to joint executors or administrators, as will be seen below. But at common law be cannot join in the same action counts in his official capacity and in his own right ; ^ but he can join counts on promises to the deceased with counts on promises to himself " as executor " or " as administrator." ^ The admin- istrator may maintain trespass for an injury to the personal property committed after the death of the intestate and before administration is granted.^ As a general rule, when there are several executors or ad- ministrators who have qualified for the office, all must join in actions brought by them either at law or in equity.* But if they do not, this defect can only be taken advantage of by plea in abatement. If the defendant plead the general issue or other plea to the merits he waives the non-joinder.^ This rule, that all must sue, is subject to some qualification, as has been seen, for if one of several makes a contract regarding the estate or sells part of it, he alone can sue on the contract or for the price ; ^ or if goods are taken from the possession of one he alone may sue for the tort.^ In such case, he must sue in his own right, for if he sued as executor or administra- tor, the defendant by plea in abatement might require the joinder of all the executors or administrators, and so defeat the action.^ If the deceased was a member of a partnership, son, C. J.; Carlisle v. Burley, 3 Greenl. 250; Mowry v. Adams, 14 Mass. 327; Williams v. Moore, 9 Pick. 432; Bates v. Bates, 134 Mass. 110; Plimpton H. Goodel], 126 Mass. 119; Stanley v. Gaylord, 10 Met. 82; Stewart v. Bichey, 2 Harr. 164. * Brown v. Webber, 5 Cush. 560; Mason v. Norcross, Coxe, 242. 2 Wms. Ex'rs, 1872, 1873. » Hutchins v. Adams, 3 Me. 174. * Smith V. Chapman, 5 Conn. 27; Judson v. Gibbons, 5 Wend. 224; Rinehart ». Kinehart, 2 McCart. (N. J.) 44; Hunt v. Kearney, Pen. 721; Coursen's Case, 3 Gr. Ch. 408. 5 Tuckey v. Hawkins, 4 C. B. 655; Packer v. Willson, 15 Wend. 343; Bodle V. Hulse, 5 Wend. 313 ; Cole v. Smalley, 1 Dutch. 374. « Heath v. Chilton, 12 M. & W., Wms. Ex'rs, 1868, 1869. ' Godolph. Pt. 2, 0. 16, § 1; Wentw. OfE. Ex. 224. 8 Wms. Ex'rs, supra. ACTIONS BY EXECUTORS AND ADMINISTRATORS. 449 or one of several joint contractors, the executor has no right to join in an action on a debt due to the partnership or on the contract, for the action survives to the others ; ^ and if all die, the executor or administrator of the last survivor alone can sue.^ If, on a covenant, the interests are several, the executor or administrator of one may sue separately .^ The same rules apply to actions of tort where several owned the property in- jured, at the time, of the injury.* § 637. Survival of Actions. — The general rules as to the survival of actions have been already discussed, and it is not necessary to do more here than to refer to that discussion, and to add that when the cause of action survives, the executor or administrator has the same remedy as the deceased would have had.^ If a married woman dies, and the cause of action: does not go to her husband, her administrator has a right to prosecute it.^ The statute of Massachusetts, which is in gen- eral similar to the statutes of most of the States as to sur- vival, has been already given.'^ Additional statutes provide that all actions which would have survived if begun by or against the original party' in his lifetime, may be begun and prosecuted by and against his executors and administrators.^ Special statutes also provide for the survival of actions for the prosecution of mechanics' liens ; ^ of actions upon recogni- zances for debt;!" of petitions for damages for laying out ways ; ^^ of actions for damages caused by defective ways ; ^^ » Strang v. Hirst, 61 Me. 9; Clark v. Howe, 23 Me. 568; supra, § 604. 2-Wras. Ex'rs, 1865, 1866; Martins. Crump, 2 Salk. 444; Anderson, e. Martindale, 1 East, 497; Walker ».• Miaxwell, 1 Mass. 104; Smith w. Franklin, 1 Mass. 480. 8 Wms. Ex'rs, 1866, 1867. * Wms. Ex'rs, 1867. « Supra, § 361, et seq. • Allen v. Wilkins, 3 Allen, 321. T Supra, § 365; Noice v. Brown, 10 Vroom, 569; Sleeper v. Union Ins. Co., 65 Me. 396. 8 Mass. Pub. Sts. c. 166i § 1. « Mass. Pub. Sts. c. 191, § 38. !» Mass. Pub. Sts. c. 193, § 13. II Mass. Pub. Sts. c. 49, §§ 36, 37. M Mass. Pub. Sts. c. 52* §§ 17, 21. 29 450 . LAW OP EXECUTORS AND ADMINISTRATOES. or for loss of life caused by the negligence of a common carrier.^ § 638. Profert not necessary. — According to modern prac- tice, it is not generally necessary for either an executor or an administrator to make profert of his letters in his declara- tion, nor can the defendant have oyer of them. It is sufficient if the plaintiff be ready at the trial -with them as evidence.^ The subject of set-off and of limitations will be discussed later. § 639. Proof of Representative Character. — The grant of let-, ters is conclusive proof of the representative character of the plaintiff. The principles which govern the investigation into the title of the executor or administrator to his office have been already discussed at length in treating of the conclusiveness of the decrees of the probate court, and it will be sufficient here to refer the reader to those places, merely reiterating that the decree of the probate court making such appointment can only be attacked as void, and not for irregularity or error making it voidable.^ The allegation of the plaintiff being executor or administrator can only be met by a plea in abate- ment. If the general issue is pleaded, the character of the plaintiff is admitted.* § 640. Proceedings in Equity. — The remedies in equity which are available to the executor or administrator may be divided into three classes. First, those suits in equity which the de- ceased had already begun ; second, those which the executor or administrator begins on causes of action which existed at the death of the deceased, or accrue as part of the estate after- wards ; and third, those which the executor or administrator uses incidentally to the administration of the estate. » Mass. Pub. Sts. c. 73, § 6. " Wms. Ex'rs, 1875; Langdon «. Potter, 11 Mass. 314; and see the statutes of the various States. * Supra, Chapters, I., II.; Clark v. Pishon, 31 Me. 503. * Clark V. Pishon, supra; McEinnon v. Riddle, 2 Dall. 100. ACTIONS BY EXECUTORS AND ADMINISTRATORS. 451 As to the first, it may be observed that the practice in equity where a suit abates because a complainant dies pending the suit, is for the action to be continued by the executor or administrator, by a bill of revivor, or by an order of the same nature,^ or by a substitution of the executor or administrator as complainant, under statutory authority similar to the pro- ceedings at common law, which have been already stated.^ As to the second class, that is, equitable rights which accrued during the deceased's life or afterwards, forming part of the assets of the estate, the executor or administrator succeeds to them, and may enforce them by the same equitable remedies as the deceased might have had.^ Thus, a bill in equity to enforce a vendor's lien should be brought by the adminis- trator.* And, as has been already seen, an executor or ad- ministrator has all the rights in winding up a partnership that the deceased would have had, to call for an account and settle- ment,^ or to restrain the use of a trade-mark or firm name,^ or to foreclose or redeem a mortgaged The third class — that is, equitable remedies incident to settling the estate — presents some peculiar forms of equitable action. One class of these has already been examined in several forms, that is, bills in equity to set aside fraudulent or voluntary conveyances of the deceased in fraud of his creditors, and to recover the property so conveyed for the use of the creditors in the payment of debts.^ Another important class of such equitable remedies is composed of bills brought by executors to ascertain the con- struction of a will, or their duties under it, in the nature of a 1 Wms. Ex'rs, 890. " Supra, § 635. 8 Phillips V. Allen, 5 Allen, 85. < Hubbard ». Clark, Supp. N. J. Dig. p. 241. 8 Supra, § 598, et seq; Freeman v. Freeman, 136 Mass. 260 ; Schenkl V. Dana, 118 Mass. 236 ; Shearer v. Shearer, 98 Mass. 107. « Sohier «. Johnson, 111 Mass. 238; Morse v. Hall, 109 Mass. 409; Bowman v. Floyd, 3 Allen, 76. "> Supra, § 629. 8 Supra, §§ 619-621, 622, 623, 627. 452 LAW OP EXECUTORS AND ADMINISTRATORS. bill of interpleader. Such a bill may be brought when an exec- utor has funds ia his hands, and, by reason of obscurity in the will, conflicting claims are made upon him which affect his duty and prevent his executing the will.^ If the executor has no interest in the real estate or in the personal property, he cannot maintain a bill for instructions.^ "Whether a bill for instructions can be maintained by an administrator in those States in which full jurisdiction of the settlement of estates is given to the probate courts, is not yet decided. In Massachu- setts, such a bill was brought by an administrator who was also an heir and who had sold real estate to pay debts, to ob- tain directions as to the payment of the proceeds. The widow had joined in the sale and conveyance without prejudice to her rights in the proceeds of the sale, and the bill was brought to see how far the proceeds could safely be paid over to her. The court held that this was substantially a bill to distribute the estate, and that this subject was wholly within the province of the probate court, and dismissed the bill, but refused to decide whether or not an administrator could, under any circum- stances, maintain such a bill.^ In earlier cases, the courts have said that such a bill might be maintained.* 1 Putnam v. Collamore, 109 Mass. 509; Wilbur v. Maxam, 133 Mass. 641; Bradford v. Forbes, 9 Allen, 365; Treadwell v. Cordis, 5 Gray, 341. " Parker v. Parker, 119 Mass. 478. « Muldoon V. Muldoon, 133 Mass. 111. * Bigelow V. Morong, 103 Mass. 327; Stevens v. Warren, 101 Mass. 564. LIABILITY OP EXECUTORS. 453 CHAPTER XXIV. LIABILITY OP EXECUTORS AND ADMINISTRATORS; ACTIONS AGAINST THEM AT LAW. § 641. Division of Liabilities. § 666, 642. Survival of Actions against Ex- 667. eeutors or Administrators. 668. 643. Survival of.Contract Obligations. 644. Non-Survival of Contracts for 669. Personal Services. 670. 643. Non-Survival of Claims not binding at Law. 671. 646. Liability for Breach after Death 672. of Deceased. 647. Survival of Actions for Wrongs. 673. 648. Summoning in Executor to de- 674. fend. 649. Joint Liabilities ; Gontraqt. 675. 650. Joint Liabilities ; Tort. 651. Dissolution of Attachment by 676. Death. 677. 652. Particular Liabilities ; Cove- nants. 678. 653. Liability for Bent. 654. Other Liabilities in regard to 679. Eeal Estate. ,680. 655. Nature of the Liability for Acts 681. of Deceased. 682. 656. Lisbility upon Exeoutof's or Ad- 683. ministrator's Contracts. 684. 657. Liability for Funeral Expenses. 685. 658. Liability on Account stated. 686. 659. Personal Liability of Executor. 687. 660. Personal Liability as to Con- 688. tracts. '689. 661. Promise to pay Debt of De- 690. ceased ; Consideration. 691. 662. Statute of Frauds as to such Promise. 692. 663. Arbitration ; Usurious Interest. 664. Liability for continuing Trade 693. of Deceased. 694. 665. Personal Liability continued. 695. Personal Liability for Waste. Waste, Instances of. Waste ; Discharge of Debts ; Arbitration. Payment of Claims not binding. Payment of Debts barred by Statute of Limitations. Delay ; Negligence. Goods lost by Fire or other Cas- ualty. Liability on Investments. Liabilily as to Husband and Wife. Liability of Executor de son tort. Liability to Rightful Executor. Liability on Bond to pay Debts and Legacies. Liability only in State of Ap- pointment. Action for Legacy. Action for Distributive Share. Parties to Actions ; Venue. Suits in Federal Courts. Attachments ; Service of Writ. Joinder of Counts. Pleas ; Ne unques executor. Pleas by several Executors. Pleas ; Bankruptcy. Statute of Limitations. Set-off; Tender. Pleas ; Plene administravit. Evidence under plene adminis- travit. Defences under pUne adminis- travit. Same subject. Retainer. Special Pleas. 454 LAW OP EXECUTORS AND ADMINISTEATORS. § 696. Insolvency of Estate. § 699. Execution ; Scire facias. 697. Judgments against Executor or 700. Debt on Judgment. Administrator. 701. Enforcing Judgment against Tes- 698. Judgment for Future Assets. tator or Intestate. § 641. Division of Liabuities. — The liabilities of an executor or administrator may be divided into two parts ; the liabilities of the deceased, which descend upon the executor or admin- istrator, and the liabilities which he himself incurs in the process of settling the estate. The former class of liabilities is composed of claims of creditors of the deceased and others having claims against him, of any sort or kind; the latter class, of claims of creditors or legatees or distributees which have arisen since the death of the deceased. § 642. Survival of Actions against Ezecutor or Administra- tor. — The important questions in regard to the former class arise out of the rule of the common law in regard to the sur- vival of causes of action, and out of the various statutory pro- ceedings by which, when the cause of action does survive, the executor or administrator may appear voluntarily and defend the action, or may be compelled to appear and defend, under penalty of judgment for the plaintiff if he does not so appear. The rules as to the survival of causes of action have been already discussed at some length in considering what choses in action accrue to the executor or administrator as assets of the estate ; ^ for, as a general rule, actions which survive for an executor or administrator survive also against him.^ Some further examination of the subject, however, will be necessary in its relation to the choses in action against the deceased. § 643. Survival of Contract Obligations. — As to the survival of causes of action against executors and administrators, the first general rule is that, as to personal claims founded on any obligation, contract, debt, covenant, or other duty of the testator or intestate, upon which he might have been sued in ^ Supra, § 365, et seq. * Stebbins «. Palmer, 1 Pick. 78; Chase v. Fitz, 132 Mass. 359. LIABILITY OP EXECUTORS. 455 liis lifetime, the right of action survives his death, and is en- forceable against his executor or administrator.^ Therefore, executors or administrators are liable, as far as they have assets, for debts of every description due from the deceased ; either debts of record, — as judgments, statutes or recognizances, or debts due on special contract, — as for rent or on bonds, cove- nants, and the like, under seal, or debts on simple contracts, — as notes unsealed, and promises not in writing either express or implied.^ And this liability is not dependent upon the executor or administrator being named in the contract as one of the parties to it, for the liability is cast upon him by the law, as one of the consequences of his being the personal rep- resentative of the deceased.* It is to be noticed that this liability of an executor or administrator is wholly a liability in his representative capacity, and is limited to the assets which come to his hands, and is subject always to the plea of plene administravit, and such other pleas as may be proper for an executor or administrator to plead in his representative capacity in an action brought to enforce the demand;* but by improper pleading, or by the conduct of the executor or ad- ministrator, the liability may, as will be seen later, become personal.^ The executor or administrator may, moreover, by his con- duct in regard to contracts of the deceased, give rise to a new cause of action against himself personally, in addition to the action against him in his representative capacity. An illus- 1 Touchst. 482; 1 Saund. 216 a, note (1) to Wheatley v. Lane; Har- rison I'. Sampson, 2 Wash. 155; Lee v. Cooke, 1 Wash. 306; Holbrook v. White, 13 Wend. 591 ; Davis v. Pope, 12 Gray, 193 ; Corcoran v. Henshaw, 8 Gray, 267; Chijds v. Jordan, 106 Mass. 821; Harrison v. Conlan, 10 Allen, 86, per Metcalf, J.; Parker v. Coburn, lb. 83; Jenkins v. Stetson, 9 Allen, 128; Prescott v. Ward, 10 Allen, 204. ' 2 Wms. Ex'rs, 1721; Bac. Abr. Ex'rs, P. 1; Bachelder v. Fisk, 17 Mass. 464; How v. How, 48 Me. 428; McDaniel v. Parks, 19 Ark. 671. 8 Wentw. Off. Ex. o. 11, pp. 239, 243; Harrison v. Sampson, 2 Wash. 155. * Infra, §§ 655, et seq. ■ « Infra, §§ 697, 699. 456 LAW OP EXECUTORS AND ADMINISTRATORS. tration of this is furnished by a case where a man made and signed a promissory note, payable to his housekeeper, and she left it in his hands for safe-keeping. After his death, the ad- ministrator refused to deliyerthe note to the payee, on demand for it. The payee accordingly brought an action of contraot .against him in his representative capacity, and he defended on the ground that the action should have been trover against Jiim, personally, for the conversion of the note. The court held that the administrator was liable, both personally and in his representative capacity, and that one remedy did not ex- clude the other.^ § 644. Non-Survival of Obligations for Personal Services. — ^ There is, however, an exception to the rule of survival of con- tract obligations, that is, when the contract calls for services which could only be performed by the deceased personally, for the performance of such a contract becomes impossible by the •death of the contractor. Thus, if the contract was that the contractor should write a book, or jnake a painting or engrav- ing, or if it is to pay another for his personal services as body- servant or valet, or in other like capacities, the contract is -ended by the death of the deceased, and no liability descends upon the executor or administrator, except for breaches occur- xing during the life of the .contractor.^ A further exception exists in regard to the somewhat anomalous action for breach of promise of marriage. This contract would not be enforce- able if there has been no breach before the death of the prom- isor, upon the principle already stated ; but it has been further held, that although the contract may have been broken before the death of the promisor, by a refusal to carry it out, or by delay amounting to a refusal, yet no action lies against the executor or administrator, at least unless special damage is shown. This has been said to be because the action is rather 1 Prescott V. Ward, JO Allen,. 208. ^ Harrison v. Conlan, 10 AUen, 86, per Metoalf, J.; MoGUl v. McGill, 2 Met. (Ky.);258; Dickenaop v. Callahan, 19 Pa. &t.:227. LIABILITY OP EXECUTORS. 457 in the nature of an action of deceit or fraud than an ordinary breach of contract.^ § 645. Claims not Binding at Lavir, not to be Paid. — It is the duty of the executor or administrator to investigate the claims against the estate, and he may refuse payment of such as can- not be enforced at law. Thus, when a grandmother supported her destitute grandchild, an infant of some two years, and at length the infant was killed in a railroad accident, and her administrator recovered damages therefor, it was held that the grandmother could not recover any portion of these dam- ages, because she had gratuitously supported the child, without any expectation of reward, and that no promise of the admin- istrator to pay suph claim could bind the estate.^ The effect of a promise by an executor or administrator to pay a valid debt of the deceased will he considered later. In this connection may be noticed a species oi contract of the ■deceased, which has given rise to some discussion as to the va- lidity of the contract. This is when the deceased promises that money shall be paid to another at the time of the promisor's decease, and the promise is made for valuable consideration. The objection to such a promise is, that it approaches nearly the nature of a testamentary disposition of property by the deceased in a manner not allowed by the statute of wills ; but this objection is avoided by the fact that the promise is made on valuable consideration, thus constituting a valid contract which the executor or administrator is hound to perform.^ § 646. Xixecutor liable for Breach after Death of Contractoi;. — In many cases the liability upon contracts of the deceased does not accrue till after his dgath ; but the executor or ad- ministrator is liable. Thus he is liable upon a bond which becomes due or a note payable subsequent to the death of the testator or intestate, or for the performance of any other con- 1 Stebbins v. Palmer, 1 Pick. 78; Chase w. Fitz, 132 Mass. 359. ^ Shepherd «. Young, 8 'Gray, 152 ; Bomfard v. Grimes, 17 Ark. 567. * Parker v. Coburn, 10 Allen, 82; Jenkins w. Stotson, 9 Allen, 132. 458 LAW OP EXECUTORS AND ADMINISTEATORS. tract of the deceased,^ just as he is for the payment of debts overdue at the death of the deceased.^ § 647. Survival of Actions for Wrongs. — In regard to the enforcement against the executor or administrator of liar bilities of the deceased for wrongful acts done by him, the question becomes one relating to the form of remedy for the wrong ; for the rule of the common law was that, if an injury was done either to the person or property of another for which damages alone could be recovered in satisfaction, the action died with the person by whom the wrong was committed, and the injury was therefore irremediable.^ This rule did not ap- ply where the remedy sought was a return of property wrong- fully taken, and therefore the action of replevin survived at common law.* The rule of the common law has been largely extended by statute both in England and the United States. The statutes generally have a similar scope, which is to provide for the survival ot all actions giving redress for injuries either to the person or property, whether the redress sought is a return of property or a money payment. For a detailed account of what actions survive in each State, the reader is referred to the statutes of the various States. It may be said generally that actions of tort, including trover, now survive.^ The statute of Massachusetts, already referred to, is a fair example of such statutes, and provides for the survival of the following actions : Of replevin ; of tort, for assault, battery, imprison- ment, or other damage to the person ; for goods taken and carried away or converted by defendant to his own use ; or for damage done to real or person§il estate, and actions against a 1 Toller, 463; Wms. Ex'rs, 1724; Davis v. Pope, 12 Gray, 193. 2 Supra, § 643. 8 1 Saund. 216 a, note (1) to Wheatley ». Lane; Bernard v. Harrington, 3 Mass. 228. » Pitts V. Hale, 3 Mass. 321. * McKinley v. McGregor, 10 Iowa, 111; Froust v. Barton, 15 Miss. 619 ; Terhune v. Bray, 16 N. J. L. 54. LIABILITY OP EXEC0TOES. 459 sheriff for malfeasance or non-feasance of himself or his depu- ties.^ Under this statute, it is held that an action of tort for wrongfully building a dam, and thereby injuring the flow of water over a dam higher up the stream, survived against the administrator of the one who built the dam, since the act of the defendant's intestate injured the mills and other real estate of the plaintiff.^ But an action for malicious prosecu- tion does not survive against the administrator of the defend- ant ; 3 nor does an action for libel ; * nor does an action of tort for making false answers as trustee in trustee process ; ^ nor an action for fraudulently recommending a trader as in good credit.® If the question as to the survival of an action of tort arises after the action has been begun, the executor or administrator of the defendant may appear and move to dis- miss the action, or may make such motion when cited to appear by the plaintiff J § 648. Summoiung in Executor to defend. — If the cause of action which existed in the lifetime of the deceased has been put in suit against him, and it survives his decease, the executor or administrator must defend the action, if there is a defence. The mode of substituting him as defendant has been very generally regulated by statute, by which the executor or administrator may, if the cause of action survives, be brought into the case and continue to defend it. Provision is gen- erally made for this being done voluntarily by the executor or administrator, or by compulsion if he does not do so volun- tarily, enforced by a default if he does not appear in answer to the summons.^ It is provided in Massachusetts that, if the 1 Mass. Pub. Sts. c. 165, § 1. " Brown v. Dean, 123 Mass. 254. » Conly V. Conly, 121 Mass. 550. * Walters v. Nettleton, 5 Cush. 544. 6 Stillman f. Hollenbeck, 4 Allen, 391. « Read v. Hatch, 19 Pick. 47. ' Conly V. Conly, supra; Walters v. Nettleton, supra. 8 Mass. Pub. Sts. c. 165, §§ 5-11. 460 LAW OP EXECUTORS AND ADMINISTRATOES. executor or administrator is defaulted for non-appearance in answer to the summons, he shall not be liable personally for costs ; but the estate shall be so liable ; ^ whereas, as will be seen later, if he appears and defends and judgment is against him, he is liable personally for costs.^ The executor or ad- ministrator should, however, defend the action, if there is a defence ; for if he does not, he will be liable to the estate for negligence in not defending the action, and thus indirectly liable for both the damages and costs of the case.^ § 649. Joint Liabilities ; Contract. — The rules of law, in case the cause of action is against several on a joint indebted- ness or promise, have been already examined in considering the liability of partnership estates.* It will be suflQcient here to state that if two or more are jointly liable, and one dies, an action lies against the survivor, and not against the repre- sentatives of the deceased debtor or contractor, unless that procedure is authorized by statute, as it is in Massachusetts.^ If the liability is joint and several, or several, suits may be brought separately against the survivors and the estate, but in separate actions ; because the judgment is different in the different cases, — in the latter being de bonis testatoris ; in the former de bonis propriis.^ By statute in some States it is provided that when two or more are jointly indebted and one dies, his estate shall be liable, as if the indebtedness was joint or several, and a separate action may be brought against it ; ' 1 Mass. Pub. Sts. c. 165, § 11. 2 Infra, § 744. 8 Newcomb v. Goss, 1 Met. 333. * Supra, §§ 601, 603. ^ New Haven & Northampton Co. v. Hayden, 119 Mass. 365; Foster v. Hooper, 2 Ma.ss. 572; Rice's App. 7 Allen, 114; Colt v. Learned, 133 Mass. 409; Curtis v. Mansfield, 11 Gush. 152; Sampson v. Shaw, 101 Mass. 145. ° New Haven & Northampton Co. v. Hayden, supra; Colt 1>. Learned, supra ; Niles ». Drake, 17 Pick. 516. ' Mass. Pub. Sts. c. 136, § 8; Burnside v. Merrick, 4 Met. 544'; Curtis V. Mansfield, supra; Kice's ,App. 7 Allen, 114; Cowley 0. Patch, 120 Mass. 139; Sampson v. Shaw, supra. LIABILIXT OP EXECUTORS. 461 but even under such a statute both demands cannot be joined in one suit.^ If an action is pending against several defendants to an ac- tion of contract on a joint liability, and one dies, his executor or administrator cannot be summoned in, but the action must be continued against the survivors, and so on till the last defendant dies, when his executor or administrator may be summoned in to defend the action.^ This exclusion of the executor or administrator is obligatory, even if the sole sur- viving defendant has secured his discharge in bankruptcy.^ But a separate action may be begun against the estate under the statute above referred to.* But if the liability on which suit is brought is several only, and one defendant dies, the executor may be summoned in to defend, for separate trials and judgments may be had.? § 650. Joint Liabilities in Tort. — The liability of tort-fea- sors, being joint and several, it seems that if one dies before suit brought, his estate might be sued, as well as the surviv- ing' tort-feasors, in separate actions,® If the suit is brought against all the tort-feasors, and one dies, it would seem that under such a statute as is above referred- to, the action should be prosecuted against the survivors only.'^ § 651. Dissolution of Attachment. — The death Of a defend- ant effects by statute in many States a dissolution of an attachment of his property. Thus- in Massachusetts it is provided that the death of tiie owner of the goods, and ad- J" Cochrane v. Gushing, 124 Mass. 219 ; New Haven & Northampton Co. V. Hayden, 119 Mass. 361; Niles v. Drake, 17 Pick. 516. » Mass. Piib. Sts. c. 165, §§ 12, 13; Kicker «. Geifrish, 124 Mass. 367. 8 Ricker v. Gerrish, supra. * Mass. Pub. Sts. c. 136, § 8; New Haven & Northampton Co. v. Hay- den, 119 Mass. 361; Cochrane u. Cushing, 124 Mass. 219. 6 Colt V. Learned, 133 Mass. 411. • Addison, Torts, par. 1321; ' Mass. Pub. Sts. c. 165, § 12. See also Mechanics, &c. Ins. Co. v. Spang, 5 Pa. St. 113. 462 LAW OP EXECUTORS ANT) ADMINISTEATOES. ministration taken on his estate within a year, or applied for within a year and taken afterwards, dissolves an attachment of his property, either by ordinary process of attachment or by trustee process.^ § 652. Particular Liabilities of Executors or Administrators ; Covenants. — The general rules regarding the liabilities of executors or administrators having been stated, it remains to investigate particular kinds of liabilities. As to covenants, the rule is that, where a testator or intestate is bound by a covenant, the executor or administrator shall be bound by it, unless it is determined by the death of the testator or intes- tate, — that is, unless it is for the personal service of the de- ceased.^ And the executor or administrator is liable not only for breaches in the life of the testator or intestate, but for those occurring after his decease, so far as there are assets in his hands.^ Thus, if a tenant in tail leases for years, and dies, and the issue in tail ousts the lessee, he may have cov- enant against the executors of the lessor upon an express covenant for quiet enjoyment of the lease.* So, although a lessee may have assigned his term, and the landlord ac- cepted the assignee as his tenant, yet, the original tenant remaining liable on his covenant for rent, his executor will be liable to the extent of assets to the landlord, or to the assignee of the landlord, if the landlord has assigned the lease, in an action of covenant.^ But if the deceased, instead of being the original tenant, was the assignee of the tenant, then he is liable only for breaches of the covenant during the term of his occupation, and therefore his ex- 1 Mass. Pub. Sts. c. 161, § 56; Parsons v. Merrill, 5 Met. 356; Wil- marth v. Richmond, 11 Cush. 463 ; Day v. Lamb, 6 Gray, 528. Infra, § 717. 2 Wms. Ex'rs, 1749; Com. Dig. Covenant, C. 1. ' Hovey v. Newton, 11 Pick. 421; Montague v. Smith, 18 Mass. 405; Holden v. Fletcher, 6 Cush. 235. * Wms. Ex'rs, 1750; Fitzh. Nat. Br. 145 E. note (a). ^, Brett .». Cumberland, ;Cro. Jac. 521; 1 Saund. 241 a, note (5)" to Thursby v. Plant ; Greenleaf v. Allen, 127 Mass. 248. LIABILITY OP EXECUTORS. 463 ecutor or administrator may, by assigning the lease, relievo himself from all future liabilities.^ If the executor of the lessee assigns the lease, he is still liable upon the covenants of the lessee, although the landlord may have accepted the as- signee as tenant, for the covenants bind the lessee and his executors and administrators, even after they have assigned the lease.^ Upon covenants in law, — for example, upon a covenant for quiet enjoyment implied from a demise of land, — an executor or administrator is not liable, unless the breach occurred in the life of the deceased.^ § 653. Liability in . Debt or Assumpsit for Rent. — The gen- eral rule is that the executor or administrator is liable for rent for any unexpired term under a lease to his testator or intestate, but only to the extent of assets in his hands, unless he has in some way confirmed or accepted the lease so as to render himself personally liable, as by occupation of the prem- ises, or by taking rent from an under-tenant, or otherwise.* If the whole rent was incurred and the lease expired before the death of the deceased, the executor or administrator has no personal liability, but is liable for the whole rent in his ad- ministrative capacity, to the extent of assets.^ As tenancies at will are terminated by the death of the lessee,® the execu- tor or administrator is liable only for rent accruing before the death, and then only in his representative capacity, and not personally ; ' but if he continues to occupy, he would be per- sonally liable as an ordinary tenant at will. An assignment 1 Taylor v. Shum, 1 Bos. & Pull. 21; Rowley v. Adams, 4 My. & Cr. 534. 2 Hellier v. Casbard, 1 Sid. 266; Coghill v. Freelove, 3 Mod. 325. * Swann v. Stransham, Dyer, 257 a ; Com. Dig. Covenant, C. 1. * Inches v. Dickinson, 2 Allen, 72; Greenleaf v. Allen, 127 Mass. 253; Daniels v. Richardson, 22 Pick. 568; Wms. Ex'rs, 1753; Boulton v. Canon, 1 Freem. 337. 6 1 Roll. Abr. 603, S. pi. 9; Fruen v. Porter, 1 Sid. 379. * Rising V. Stannard, 17 Mass. 284. "< Inches v. Dickinson, 2 Allen, 72. 464 LAW OP EXECUTORS AND' ADMINISTRATORS. of the lease by the lessee during his life relieves his executor or administrator from all liability, except on the covenant for rent, as executor or administrator.^ If the lease has not been' assigned by the lessee, but if an assignment is made by his executor or administrator after entry on the land, he is liable personally for rent during the time he occupied the land, and as executor, to the extent of assets for subsequent rent on the covenant for rent.^ § 654. Liability in regard to Real Estate. -^ The executor or administrator may be held liable in certain cases for contracts of the deceased in regard to land or other real estate. It has already been seen that such a liability exists in regard to the covenants of the deceased in his deeds.^ Another liability arises in regard to contracts of the deceased in regard to con- veyances of land. First, as to his contracts to buy land. It is held in equity that if the deceased had entered into a binding contract for the purchase of land, and died before the payment of the purchase-money, he thereby effected a conversion^ of so much of his estate into realty, and, therefore, the liabilitj' to pay the purchase-money devolves upon the executor or admin- istrator, although the land goes to the' heirs or devisees ; and if the heir pays for the land, he is entitled to be reimbursed out of the personal estate.* This liability depends upon the existence of a valid contract for the purchase of the land. If the contract is not completed, or for any reason is not enforce- able, the rule does not apply, since the conversion is not ef- fected.^ A second liability is that if the deceased had entered into a binding contract for the sale of land, and died before executing the conveyance, by statute in some States a pro* ceeding by petition is given to the vendee against the executor » Heller v. Casbert, 1 Lev. 127; Wms. Ex'rs, 1751. 2 Wilson V. Wigg, 10 East, 313; Wms. Ex'rs, 1750. 8 Supra, §§ 652, 653. * Milner v. Mills, Mosely, 123; Broome v. Monck, 10 Ves. 597. 6 Green v. Smith, 1 Atk. 573. LIABILITY OP EXECUTORS. 465 or administrator, by which the specific performance of the con- tract of the deceased may be enforced by a decree or order directing the execution of the deed by the executor or admin- istrator.i This jurisdiction of such a proceeding is given by statute to the probate court or supreme court by petition. This jurisdiction being concurrent, if one of the courts denies the petition, it bars a subsequent proceeding in the other.^ The ordinary rules governing the enforcing of specific per- formance of contracts in equity apply to such proceedings.^ This proceeding depends upon statute. At common law, the proceeding would be against the heirs or devisees in equity to compel a conveyance, because the title is in them, and the purchase-money would be paid to the executor or administra- tor, on the theory of conversion above mentioned. In regard to injuries done by the deceased to the real estate of another, if the cause of action is for damages, for example, trespass quare clausum, or case for injuries, the executor or adminis- trator is liable, since the action is directed against the personal estate of the deceased.* If the action is for the recovery of land of which the deceased wrongfully dispossessed the plain- tiff, or in other ways affects the title to or right of possession of the land, it should be against the heirs or devisees, as the title and right to possession is in them. § 655. Nature of the Iiiability upon Acts of the Deceased. — The liability of the executor or administrator upon the debts of or claims against the deceased, is originally in his representa- tive capacity, and to the extent of assets only, as has been seen in the preceding sections.^ But he may so act in regard to such claims as to render himself liable personally. Therefore, if he is sued on such a claim in his representative capacity, 1 Ryder v. Eobinson, 109 Mass. 67. " Luchterhand v. Sears, 108 Mass. 552. « Miller v. Goodwin, 8 Gray, 544. * Brown v. Dean, 123 Mass. 254. 6 Stipra, §§ 643, 652, 653. 30 466 LAW OP EXECUTORS AND ADMINISTRATORS. and pleads any plea which admits that capacity, except a re- lease to himself, the judgment for debt or damages and costs at common law is de bonis testatoris, if the defendant have so much, but, if not, then costs out of the defendant's own estate ; ^ but where the defendant pleads that he never was executor or administrator, the judgment at common law was for both debt or damages and costs out of his own estate.^ But the distinc- tion is not necessarily important, since even if the judgment is de bonis testatoris, the judgment itself is at common law a conclusive admission of assets ; for if there were not assets to pay the claim, the defendant should have pleaded plane admin- istravit; ^ and, after judgment, scire facias being taken out, or an action of debt on a suggestion of devastavit, the executor can only controvert the devastavit, of which the judgment and sheriff's return of nulla bona testatoris are almost conclusive evidence, and the judgment on the scire facias must almost inevitably be against the defendant personally.* In some States, however, the liability of the executor upon scire facias on suggestion of waste, is limited to the actual waste, that is, the amount of assets that have been in his hands, if he proves that amount, and is only liable for the whole judgment, in the absence of such proof.^ § 656. Liability of Executor or Administrator upon his own Contracts. — The second class of liabilities which the executor or administrator may have to meet are those arising since the death of the deceased. Generally speaking, these are personal liabilities of the executor and administrator, and not liabilities of the estate, and the judgments in actions upon them will be de bonis propriis, and not de bonis testatoris. This results 1 Wms. Ex'rs, 1974, 1975; Wentw. Off. Ex. 341-346; Kock v. Leighton, 1 Salk. 310. See infra, § 697. 2 Wentw. OfE. Ex. 838, 340; Bull v. Wheeler, Cro. Jao. 648. 8 Wms. Ex'rs, 1952, 1953, 1976. < 1 Saund. 337, note (1) ; Jenkins v. Wood, 144 Mass. 238; Mass. Pub. Sts. c. 166, §§ 5-10. See infra, § 699. 6 Mass. Pub. Sts. o. 166, § 10. See infra, § 699. LIABILITY OP EXECUTORS. 467 from the fact that the acts of the executor or administrator in administering the estate cannot affect the estate with any new liability, and are regarded as his own personal acts, whether they consist of the incurring debts, the formation of new contract relations, or injuries done to third persons in the course of settlement of the estate. In regard to contracts of the executor or administrator regarding the estate, the gen- eral rule is well established that an executor or administrator cannot bind the estate by any new contract he may make. If he borrows money for the purposes of the estate, and de- votes it to the payment of debts due, or if he contracts for services valuable and important to it, which are rendered, he alone is liable therefor, and it will be for the probate court to . determine whether he shall be allowed compensation in his accounts for the liability he has incurred.^ Thus if one who is named executor hire a person after the death of the testator to take charge of certain portions of the estate, and afterwards declines the trust, and an administrator de bonis non is ap- pointed who receives the estate, this administrator cannot be sued by the person so hired, even if the services rendered were beneficial to the estate, because the estate is not bound by the hiring, but only the executor who makes the contract.^ So, if an executor or administrator enters into covenants in a deed or lease of portions of the estate, although he expressly does so in his representative character, yet he binds himself and not the estate.^ So, if an administrator makes a promise on 1 Eingman v. Soule, 132 Mass. 288, per Devens, J. ; Shepherd v. Young, 8 Gray, 152; Cronan v. Cotting, 99 Mass. 334; Wms. Ex'rs, 1774; Miller V. Williamson, 5 Md. 219; Pinkney ». Singleton, 2 Hill, 348; Sims v. Stilwell, 4 Miss. 176; Nehbe v. Price, 2 Nott & McC. 328; Jones v. Jenkins, 2 MoCord, 494; McElden v. McKenzie, 2 Port. 33; Underwood V. Millegan, 8 Ark. 254; Hailey v. Wheeler, 4 Jones (N. C.) L. 159; Greening v. Sheffield, Minor (Ala.), 276; Adams v. Adams, 16 Vt. 228. '^ Luscomb V. Ballard, 5 Gray, 404; Kingman v. Soule, 132 Mass. 288. ' Sumner v. Williams, 8 Mass. 162; Baldwin v. Timmins, 3 Gray, 302; Crane v. Brainard, 2 Root (Conn.), 118; Osborne v. McMillan, 5 Jones (N. C.) L. 109. 468 LAW OP. EXECUTORS AND ADMINISTRATORS. good consideration relating to the estate, and thus binds him- self personally, he does not thereby bind the estate, in the hands of a succeeding administrator de bonis non} § 657. Liability for Funeral Expenses. — In accordance with this rule, it is held that if the executor or administrator orders the funeral and interment, or if he ratifies and adopts the acts of another in ordering them, he is personally liable for these expenses, and an action to recover for them will be against him in his personal character, and the judgment will be de Ionia propriis, and if he is compelled to pay these expenses he must look to the estate for his remuneration.^ If, however, the funeral is ordered by a third person, and the executor has not assented to it, or in any way bound himself in regard to it, there seems to be some difference in the authorities as to his liability therefor. In England it is held that, in such case, the judgment will be against him, de bonis propriis, because, from the necessity of the case, these acts must be performed by some one, and the law raises an implied promise by the executor or administrator to pay for the performance of these acts in a reasonable manner, but not in an extravagant or excessive style.^ In Massachusetts, the same implied promise of the executor or administrator is recognized, but by a some- what anomalous course of procedure, the judgment is de bonis testatoris to the extent of assets only.* This procedure is based upon the theory that the furnishing of a funeral and interment is a necessity for which the estate is liable, just as for neces- sary supplies furnished to the deceased during his life or in his last sickness, and that as the implied promise to pay for them cannot be laid to the deceased, since they were incurred after 1 McBeth V. Smith, 3 Brev. (S. C.) 511; Luscomb v. Ballard, 5 Gray, 403. 2 Brioe V. Wilson, 8 Ad. & El. 349, note; Corner v. Shew, 3 M. & W. 350; Ferrin v. Myrick, 41 N. Y. 315; Wms. Ex'rs, 1788. 8 Corner v. Shew, 3 M. & W. 350. • Hapgood V. Houghton, 10 Pick. 154 ; Luscomb v. Ballard, 5 Gray, 405 ; Kingman v. Soule, 132 Mass. 288. LIABILITY OP EXECUTORS. 469 his death, it must be laid to the executor or administrator ; yet, since the liability is not personal to him, the judgment should be de bonis testatoris.^ §658. Liability on Account stated. — An exception to the general rule of personal liability of the executor or administrator is that an executor or administrator binds the estate whenever an open account existing between the deceased and another is stated, and a balance struck by the creditor and the executor or administrator, and the latter promises to pay the balance. In such a case, although the promise to pay the account is the promise of the executor or administrator, and should be alleged as such, yet, since the cause of action arose in the lifetime of the testator or intes- tate, and is merely reduced to a certainty by the accounting and balance struck, the judgment is de bonis testatoris, and not de bonis propriis, and the executor or administrator may plead plene administravit? § 659. Liability generally Personal, as to Promises of Execu- tor. — With this exception, the rule is that, whenever an action is brought against an executor or administrator upon a prom- ise laid to have been made by him after the death of the testa- tor or intestate, he is chargeable in his own right, and not in his representative capacity.^ Thus, if the declaration alleges that the defendant, as executor, was indebted to the plaintiff for money lent by the plaintiff to the defendant as executor, and that the defendant, in consideration thereof, as executor promised to pay, this declaration charges the executor per- sonally, and not as executor.* And the same is the judgment upon a declaration that the defendant, as executor, was in- debted to the plaintiff for money had and received by the defendant as executor for the use of the plaintiff, and that the 1 See Hapgood v. Houghton, 10 Pick. 154. 2 Hapgood V. Houghton, supra; Kingman v. Soule, 132 Mass. 288; Luscomb V. Ballard, 5 Gray, 405; Wins. Ex'rs, 1772, 1773. s Wms. Ex'rs, 1771. * Rose v. Bowler, 1 H. Bl. 108. 470 LAW OP EXECUTORS AND ADMINISTEATOES. defendant, in consideration thereof, as executor promised to pay.i So, a count upon a promise by the defendant as execu- tor, for use and occupation after the death of the testator, charges the defendant personally, and not as executor.^ And so does a count alleging that the defendant, as executor, was indebted to the plaintiff for goods sold and delivered by the plaintiff to the defendant as executor, at his request ; or a count for work done and materials for the same used and provided by the plaintiff, for the defendant as executor, at his request, and that the defendant as executor promised to pay.^ § 660. Personal Liability as to Contracts. — Since, then, it is only in a few exceptional cases that an executor or admin- istrator can be charged in his representative capacity upon causes of action arising since the death of the deceased, or upon the promise of the executor or administrator as such, the next point is to investigate the personal liability of the executor or administrator upon such causes of action or promises, first as regards contracts, and second as regards torts. First, as to contracts. It is clear that an executor or ad- ministrator may bind himself by a promise made upon good consideration, in just the same manner as any one else, although the promise may relate to the estate. Thus, if an executor borrows money for use in settling the estate, and promises to repay it, he binds himself just as any one would.* But if there is no consideration for the promise of the execu- tor or administrator, it binds neither him nor the estate, but is a mere nudum pactum, and cannot be enforced against the estate, or the executor or administrator.^ 1 Rose V. Bowler, 1 H. Bl. 108 ; PoweU ». Graham, 7 Taunt. 585, 586; Ashby V. Ashby, 7 B. & C. 444. 2 Wigley V. Ashton, 3 B. & Aid. 101. 8 Comer v. Shew, 3 M. & W. 350. * Kingman v. Soule, 132 Mass. 288, per Devens, J. See cases supra, §656. * Shepherd v. Young, 8 Gray, 152. LIABILITY OP EXECUTOES. 471 § 661. Promise to pay Debt of Deceased. — There is a peculiar class of cases in which the executor or administrator promises to pay a debt which is due by the deceased ; and the question arises how far the executor or administrator is per- sonally bound by such a promise. Two things are important to be noticed in such a case, — first, that the promise must be upon good consideration ; and second, that under the statute of frauds such a promise must be in writing. As to the consideration, forbearance by a creditor for a reasonable or certain time to sue on a debt due to him by the deceased is a sufficient consideration to charge de bonis propriis an ex- ecutor or administrator who promises thereupon to pay the debt.i Whether, if the executor or administrator agree to pay the debt at a future day, and the creditor accept this agreement, it binds the executor or administrator personally, is not set- tled. In an English case, where two executors gave a prom- issory note, promising as executors to pay a sum of money on demand, with lawful interest, it was held that by adding the interest payment at a future day must be meant, and that an executor by promising to pay a debt at a future day makes the debt his own.^ And generally, when executors or admin- istrators give promissory notes or bills of exchange they bind themselves personally .^ It is said that the having assets is a good consideration for a promise by an executor or adminis- trator. So that, if he promises in writing that, in considera- tion of having assets, he will pay a particular debt of the deceased, he may be sued personally on this promise.* But this rule does not seem to be adopted in the United States. 1 Johnson v. Whitchcott, 1 KoU. Abr. 24 ; Hawes v. Smith, 2 Lev. 122 ; Templeton v. Bascom, 33 Vt. 132; Ball v. Felton, 6 Jones (N. C.) L. 202. 2 Childs V. Monius, 2 Brod. & B. 460. See Austin v. Monro, 47 N. Y. 360. » Kidout V. Bristow, 1 Cr. & Jerv. 231 ; King v. Thorn, 1 T. K. 489. Contra, Troy Bank v. Topping, 9 Wend. 273. * Trewinian v. Howell, Cro. Eliz. 91. 472 LAW OP EXECUTORS AND ADMINISTEAT0E8. Perhaps it amounts to no more than this that, if an executor admits assets, generally, he is bound to pay the debt of the testator, and he is estopped afterwards to deny the existence of sufficient assets ; just as he is bound by a judgment which is considered a conclusive admission of assets, and which he is bound to satisfy out of his own estate ; or as he is bound by giving a bond to pay debts and legacies, which is again a con- clusive admission of assets, or by a submission to arbitration.^ § 662. statute of Frauds as to Fromise to pay Debt of De- ceased. — Secondly, as to the effect of the statute of frauds. This provision of statute is that no action shall be brought to charge an executor or administrator upon a special promise to answer damages out of his own estate, unless the promise upon which such action is brought, or some memorandum thereof, is in writing, and signed by the party to be charged therewith, or by some person thereunto by him lawfully au- thorized.2 The consideration of the promise need not, in Massachusetts, be set forth or expressed in the writing signed by the person to be charged therewith, but may be proved by any legal evidence.^ It is observable that this statute applies to executors before they have taken probate of the will, be- cause the executor is appointed by the testator, and derives his office from the will, and therefore is executor upon the death of the testator. But as to an administrator the case is dif- ferent ; for as he gets his official character from his appoint- ment by the court, he is not protected by the statute ; and if he promises verbally to pay a debt of the estate out of his own estate upon good consideration, before grant of letters, he is bound thereby ; * and if he promises in writing by a promis- sory note payable at a future day, and afterwards is appointed 1 Infra, § 663. 2 Mass. Pub. Sts. c. 78, § 1. See generally, for the principles of law relating to the statute of frauds, Browne on the Statute of frauds. 8 Mass. Pub. Sts. c. 78, § 2. * TomUnson v. Gill, Ambl. 330. LIABILITY OP EXECUTORS. 473 administrator, he is bound by the note, for the consideration is the forbearance to sue.^ But if such a note is given by one who never takes administration, and there is no consideration therefor, it is void, being nudum pactum.^ § 663. Effect of Submission to Arbitration ; XTsurious In- terest. — The liability of an executor or administrator upon a submission in general terms to arbitration is for the full extent of the award from his own personal estate ; for the general reference of the claim to arbitration, without saying that the payment shall depend upon his having assets, is con- sidered to be an admission of assets sufficient to pay the award, whatever it may be.^ An executor is not liable personally for usurious interest received by him on a note made to the deceased, the executor not knowing of the usury.* But if he seeks to enforce the usurious contract by claiming the face value of the loan, when in reality a less sum was advanced, the statutory penalties will be enforced by making a deduction from the amount to be recovered.^ § 664. Iiiability for continuing Trade of Deceased. — The liability of an executor or administrator continuing the trade of the deceased after his death has been considered somewhat in discussing the settlement of partnership estates.^ It is sufficient in this place to repeat that a trade is not transmis- sible, but is ended by the death of the trader. The executor or administrator cannot carry it on unless expressly com- manded to do so by the will.^ If he does carry it on without such authority, he becomes liable to the creditors and to the 1 Serle v. Waterworth, 4 M. & W. 9. 2 Nelson v. Serle, 4 M. & W. 795. 8 Pearson v. Henry, 5 T. R. 7; Bean v. Famam, 6 Pick. 269; Giles v. Perryman, 1 Har. & G. (Md.) 164. « Heath v. Cook, 7 Allen, 59. 5 Gerrish v. Black, 104 Mass. 400. « Supra, §§ 605-610. f Barker v. Barker, 1 T. R. 295; Wms. Ex'rs, 1792. 474 LAW OF EXECUTORS AND ADMINISTRATORS. estate for all losses ; while, if the business is successful, he can make no profit, but all gains go to the estate.^ If he be- comes bankrupt in the course of the business so carried on without authority, the estate is not responsible for the trade debts ; but the creditors and legatees of the estate can prove against him in bankruptcy for their respective claims ; and if any specific portions of the estate can be identified, they can be withdrawn from the estate of the bankrupt.^ If there is a direction in the will to carry on the business, and a specific portion of the estate set apart for that purpose, that por- tion only will be subject to trade debts, and form part of the bankrupt estate, if the executor or administrator fails in the business.^ If no specific portion is thus set apart, only that portion which is already engaged in the business will be properly continued in it.* Although an executor cannot carry on a trade after the death of the trader unless directed to do so by the will, yet there are cases where, in order to wind up the business, it is necessary to buy and sell stock. Thus where the executor of a wine cooper found it necessary to buy wines to refine the stock left by the testator so as to sell it at a proper value, he was held not to have become a trader.^ Moreover, if the de- ceased left unfinished contracts, — for example, the building of a house, — the executors or administrators should proceed to finish the building.® § 665. Further Personal Iiiabilities. — Other liabilities may be incurred by the executor or administrator in the course of dealings in regard to the estate, by which he will subject him- 1 Garland, JEar^arte, 10 Ves. 119; Richardson, Sa;jo. 1 Buck, 209 ; Alsop V. Mather, 8 Conn. 584; Stedman v. Fiedler, 20 N. Y. 437; Thompson v. Brown, 4 Johns. Ch. 619. ^ Garland, Exp., supra; Richardson, Exp., supra. ' Garland, Ex p., supra; Richardson, Exp., supra. * McNeillie v. Acton, 4 De G. M. & G. 744. ' Toller, 487; Garrett v. Noble, 6 Sim. 504. ' Marshall v. Broadhurst, 1 Cr. & Jerv. 405. LIABILITY OP BXECUTOES. 475 self to actions of contract in his personal capacity by persons with whom he has had dealings. As in all cases of contract arising out of dealings with the estate subsequent to the death of the deceased, the executor or administrator is personally bound, and not the estate. Therefore, if an administrator has collected money from third persons under a false claim that they were indebted to the estate, or that the money belonged to the estate, they can sue him personally for money had and received. Thus, where an employee of a fire department, hired for a limited time, assigned all his future wages to another, and the assignee died, and the administrator collected from the city all the wages not only due the fireman under the engage- ment existing when he made the assignment, but also under subsequent engagements, it was held that the assignor might recover back from the administrator in an action of money had and received all the wages earned under the engagements subsequent to the one existing at the time of the assignment ; for the assignment of future wages was valid only as to wages to be earned under an existing contract, not under future con- tracts.^ And so, if the executor or administrator receives securities from a debtor as a means of collecting the debt, and collects more than enough to pay the debt, the debtor can recover the surplus in an action for money had and received.^ A discussion of the various necessary requisites to the validity of gifts has been previously given.^ It is only neces- sary here to state that the gift may be recovered back by the donee from the executor or administrator, if he wrongfully takes possession of it, claiming that it is part of the estate ; but if the gift is imperfect and not valid, such an action will fail, — as where a gift of money is intended, but never made by transfer of possession.* 1 Twiss V. Cheever, 2 Allen, 40; Mulhall v. Quinn, 1 Gray, 105. 2 Cronan w. Cotting, 99 Mass. 334. 8 Supra, §§ 619-621, 627. * Gerry v. Howe, 130 Mass. 351. 476 LAW OF EXECUT0E8 AND ADMINISTRATORS. § 666. Liability for Waste. — As to the liability of the execu- tor or administrator for the management of the estate to those interested in the estate, whether creditors or legatees or dis- tributees, this subject is regulated by numerous principles re- lating to the subject of waste or devastavit, by an executor or administrator, some of which have been already considered in regard to the probate accounts.^ In addition it may be said, first, that an executor is considered to be made a trustee by the directions of the will, for the benefit of those entitled under the will, and therefore he is liable in equity for any departure from the trusts marked out in the will by the directions of the testator.2 § 667. Waste, what ia. — The liability for management of the estate is said to depend upon two principles : First, that in order not to deter persons from undertaking these offices, the court is extremely liberal in making every possible allowance, and cautious not to hold executors or administrators liable upon slight grounds. Second, that care must be taken to guard against an abuse of the trust.^ It would be impossible to enumerate all the cases in which the executor or administrator may be guilty of mismanaging the estate, and, therefore, of waste ; but some of the more ordi- nary forms may be given. For wilfully and wantonly or fraud- ulently wasting the assets, the executor or administrator is liable, as, if he pays his own debts with money of the estate,* or if he sells the goods at an undervalue collusively.^ It has already been seen that there are specific rules regarding the J Supra, § 533, et seq. ^ Muoklowe V. Fuller, Jacob. 198; Saunderson v. Stearns, 6 Mass. 37; Hall V. Gushing, 9 Pick. 395 ; Carson v. Carson, 6 Allen, 397, 399. 8 Wms. Ex'rs, 1797; Powell v. Evans, 5 Ves. 843; Raphael v. Boehm, 13 Ves. 410. ^ Wms. Ex'rs, 937. 6 Wentw. Off. Ex. 302; Pinchard v. Woods, 8 Gratt. 140; Saltus, Matter of, 3 Abb. N. Y. App. Dec. 243; Chapin v. Waters, 110 Mass. 195. LIABILITY OF EXECUTORS. 477 payment of debts, both as to the order and time of payment, and also regarding the distribution of the estate among lega- tees or distributees. These rules prescribe the duties of the executor or administrator; and any mismanagement of the estate, such as paying for undue funeral expenses, or paying debts out of their order, is a waste which the executor or ad- ministrator will be obliged to make up.^ Another case of waste may arise in regard to a lease of the deceased. It has been seen that the lease may or may not be assigned over to a third person by the executor or administrator, and it seems that it may be a devastavit for an executor to keep it, or for him to assign it according to its value. If the rent is more than the value of the land, the executor should assign the lease, so as to avoid paying a losing rent,^ whereas if the land is of greater value than tlie rent, it is a devastavit to as- sign it, for the estate thereby loses the profit of the land.^ § 668. Waste ; Discharge of Debts ; Arbitration. — If an ex- ecutor or administrator release debts due to the estate, or discharge or compound them, or cancel a bond due to the testator, he renders himself liable for the whole debt, unless he does this by the sanction of a decree of the probate court, as he may by statute in most States.* He is also guilty of waste if he submits a doubtful claim to arbitration, and the arbitrators award him less than is due,^ unless previous to submitting the claim to arbitration he applies to the probate court, and is protected by a decree allowing such arbitra^ tion.^ The executor or administrator may, however, in any of these cases, show that what he has done was for the 1 Cobb V. Muzzey, 13 Gray, 58, 59; Moye v. Albritton, 7 Ired. Eq. 62; Place v. Oldham, 10 B. Mon. 400. 2 Rowley v. Adams, 4 My. & Cr. 534. 8 Wentw. Off. Ex. c. 13, p. 312. * Wentw. Off. Ex. 304 ; Mass. Pub. Sts. c. 142, §§ 4, 12-17; De Die- mar V. Van Wagenen, 7 Johns. 404. 6 Wentw. Off. Ex. 304; Yard ». Allard, 1 Ld. Eaym. 369. • Mass. Pub. St. 0. 142, § 12. 478 LAW OF EXECUTORS AND ADMINISTEATOES. benefit of the estate, and, if he does, this excuses him from answering the debt out of his own pocket.^ In regard to sub- missions to arbitration and compromises of claims in favor of the estate, and the liability incurred by such proceedings, the modern rule is that if the submission or compromise is made under the authority of the probate court, under the statutes allowing such authorization, it is conclusively presumed to be for the benefit of the estate, and cannot be afterwards objected to ; while if it is made by the executor or administrator without such authority, but by his common-law power, the burden of excusing himself by showing how the arbitration or compro- mise benefited the estate lies upon him.^ § 669. Payment of Claims not binding. — Another form of waste is where the executor or administrator incurs expenses upon matters not properly included in administering the estate, or pays claims which are not legally binding, as where he pays for the schooling, feeding, and clothing of the children of the deceased, subsequent to his decease,^ or puts out money in re- pairs of buildings forming part of the real estate,* or spends money for ardent spirits used at an auction of the goods of the deceased,^ or pays a doctor who had attended the deceased gratuitously,® or pays money on an usurious contract or on a bond ex turpi causa.'' 1 Blue V. Marshall, 3 P. Wms. 381 ; Pennington v. Healey, 1 Cr. & My. 402. 2 Chadbourn v. Chadbourn, 9 Allen, 173, 174; Coffin v. Cottle, 4 Pick. 454; Wyman's App. 13 N. H. 18, 20; Chouteau v. Suydam, 21 N. Y. 179; Scott, In re, 1 Eedf. Surr. 234; Chase v. Bradley, 26 Me. 531; Mc- Daniels v. McDaniels, 40 Vt. 340; Wills v. Rand, 41 Ala. 198; Nelson v. Cornwell, 11 Gratt. 724. 8 Giles V. Dyson, 1 Sjbark. N. P. C. 32; Shepherd v. Young, 8 Gray, 152. * Cobb V. Muzzey, 13 Gray, 57. « Griswold V. Chandler, 5 N. H. 492. « Shalleross v. Wright, 12 Beav. 558. ' Winchcombe v. Winchester, Hobart, 167; Robinson v. Gee, 1 Ves. 254. LIABILITY OP EXECUTORS. 479 § 670. Payment of Debts barred by Statute of Limitations. — An exception to this rule, however, exists in cases of debts barred by the general statute of limitations ; for if the debt is otherwise justly due, it is held that the executor or adminis- trator may pay it, and is not bound to plead the statute of limitations in a suit upon it ; ^ and if he pays the debt volun- tarily, or on a judgment against him. in a suit upon the debt, he may be allowed the amount so paid by him in his probate accounts.^ This rule is not universally accepted, however, as in at least two States it is held that the executor or adminis- trator is bound to avail himself of the general statute of limitar tions, and cannot waive it and pay the debt.^ And the rule does not extend to the special statute of limitations regarding suits against executors or administrators ; for it is generally held that this statute cannot be waived by the executor or ad- ministrator. If he does not plead it to a suit on the debt, the judgment binds him alone, and not the estate, nor will he be allowed for the sum so paid in his probate accounts.* The questions relating to the statute of limitations will be consid- ered in a later chapter. • § 671. Delay ; Negligence. — Carelessness or delay in admin- istration, by which the rights of creditors, legatees, or dis- tributees become impaired, is a species of waste. Thus if an executor or administrator allows a debt, payable with interest, 1 Norton v. Frecker, 1 Atk. 526; Scott ». Hancock, 13 Mass. 164; Hodgdon v. White, 11 N. H. 208; Amoskeag Manuf. Co. v. Barnes, 48 N. H. 25, 29; Ritter's App. 23 Pa. St. 95; Payne v. Pusey, 8 Bush, 564; Chambers v. Fennemore, 4 Harr. (Md.) 368 ; Semmes v. Magruder, 10 Md. 242; Bamawell v. Smith, 5 Jones Eq. 168; Batson v. Murrell, 10 Humph. 301; Tunstall w.- Pollard, 11 Leigh, 1; Woods v. Elliott, 49 Miss. 168; Pollard v. Soears, 28 Ala. 484. * See cases supra. * Moore v. Parcher, 1 Bail. Ch. 195; Dickson v. Compton, 24 La. Ann. 83. ■* Scott V. Hancock, 13 Mass. 162; Lamson v. Schutt, 4 Allen, 360 j Hodgdon v. White, 11 N. H. 208; Walker v. Cheever, 39 N. H. 428; Wiggin V. Lovering, 9 Mo. 262 ; Stillman v. Young, 16 111. 318. 480 LAW OP EXECUTORS ANB ADMINISTRATORS. to run on after he might have paid it legally, and had assets so to do, it is a devastavit as to the interest.^ So if he delays suing for a debt until the statute of limitations has barred it, or the debtor becomes insolvent or absconds, he is chargeable with the debt; 2 but if the delay is excusable under the circum- stances, he is not so chargeable.^ So if he neglects for a long time to collect a debt, he may be chargeable with it, whether it remains collectible or not;* and if he allows arrears of rent to remain outstanding and uncollected for several years, he may be chargeable with them.^ In all the foregoing in- stances of waste, the case depends largely upon the facts and circumstances under which the executor or administrator acted ; and the court will not be bound by any precedent, but will decide whether the conduct of the executor or administra- tor in the particular case before it amounts to waste. § 672. Goods lost by Pire or other Casualty. — As to gOOds or chattels of the estate which have come into the hands of the executor or administrator, and have afterwards been lost by fire, theft, or other casualty, the rule at law was that the executor or administrator was not excused thereby ; ^ but in equity the rule was different, and it is now held that where goods are stolen or lost by accidental fire or other casualty, without the fault of the executor or administrator, he is not to be charged with this loss, but it must be borne by the estate.^ § 673. Liability on Investments. — The liabilities of execu- tors and administrators for money belonging to the estate 1 Seaman v. Everard, 2 Lev. 40. 2 Hayward v. Kinsey, 12 Mod. 573, per Holt, C. J, 8 Thomas v. White, 3 Litt. (Ky.) 177. * Oglesby «. Howard, 43. Ala. 144; Long's Est., 6 Watts, 46; Sear- borough V. Watkins, 9 B. Mon. 540; Stark v. Hunton, 2 Green Ch. 800 ; Schultz V. Pulver, 11 Wend. 361; Cartwright v. Cartwright, 4 Hayw. 134. 6 Tebbs V. Carpenter, 1 Madd. 290. » Crosse V. Smith, 7 East, 258. ' Croft V. Lyndsey, 2 Freem. 1. LIABILITY OP EXECCTOKS. 481 which they have invested or loaned out at interest, vary con- siderably in different jurisdictions. In England, certain forms of investment have been authorized by law, and an investment in these is protected from liability, even though the securities should depreciate in value ; ^ investment outside of the author- ized securities renders the executor or administrator liable for a fall in the value of the investments, even though he has acted in good faith.^ In some of the United States, similar authorized investments for trust funds exist, and the rules as to liability, as stated above, then apply .^ In other States, however, where no special securities are designated by law as proper investments for trust funds, the rule is that the execu- tor or administrator shall make his investments with reason- able prudence, and with the same foresight as an ordinarily prudent business man would use in the management of his business ; and, if he does this in good faith, he will not be held responsible for a subsequent depreciation in the value of the securities in which he has made the investments.* § 674. Liability of Husband of Executrix. — As to the liability of the husband of a married woman, executrix, for her waste, in the absence of statutes regulating the subject, he is so liable during her life for acts committed by her before or during coverture,^ but, after her death, his liability as husband ceases ;^ but if he becomes her administrator, he is liable, as such, to an action based upon her waste ; "^ and in equity he is liable for all assets which came into her hands or his own during 1 Feat V. Crane, 2 Dick. 499, note; Franklin v. Frith, 3 Bro. Ch. Cas. 434. '^ Hanoom v. Allen, 2 Dick. 498 ; Howe v. Lord Dartmouth, 7 Ves. 150. a Supra, § 441. * Supra, § 441; Harvard College v. Amory, 9 Pick. 446, 461; Lovell v. Minot, 20 Pick. 116, 119. 6 Kings V. Hilton, Cro. Car. 603; Bachelor v. Bean, 2 Vem. 60; 1 Seh. & Lef . 266. 6 Kingham v. Lee, 15 Sim. 401; 1 Sch. &Lef. 261. ' 1 Saund. 219 d, note to Wheatley v. Lane; Coward v. Gregory, L. B. 2 C. P. 153. 31 482 LAW OP EXECUTORS AND ADMINISTEATOBS. '' coverture.^ If he dies., hi$ esta,te is liable for such waste.^ The wife, after the death of the husband, becomes responsible for his acts of waste during coverture, as well as her own..' An exception to this rule ha,s been made where the wife be^ comes executrix or administratrix after coverture, by her hua^ band taking letters out in her name against her consent. In such a case, it is held in equity that if she does not inter-' meddle with the administration of the estate in any way, she, may, after his death, renounce the administration and escape responsibility for his acts of wa,ste.* IJnder the statutes found in most of the United Sta,te8 at the present day, permitting a married woman to act as executrix or administratrix as if sole, this liability of the husband does not a^ise.^ § 675. Liability of Executor de son tort. ^ At common law, the executor de son tort is liable not only to the rightful ex<> ecutor or administrator, but also to all persons aggrieved by his acts in regar4 to the estate, whether they are creditors or legatees.^ As to creditors, hisi liability is only to the extent of the assets which he has taken, if he pleads properly. Th\is if he pleads plexke administravit, and supports the plea by evir dence of payment of debts which exhausted the assets that eame into his hands, hi^ plea is a good bar to the action ; "^ or, under the same plea, he niay show that he has delivered all the assets that came into his hands to the rightful adminis- trator before action brought ; ^ but such a delivery after action brought does not bar the action, even though no administration is granted to any one till after the suit was brought.^ But if 1. Adair v. Shaw, 1 Soh. & Lef . 243. 2 Adair v. Shaw, supra; Clough v. Bond, 3 My. & Cr. 499; Smith v. Smith, 21 Beav. 385, 387. ' Adair v. Shaw, supra. * 1 Roper, Hash, & Wife, 196. « gee supra., Chapter III. 6 Godolph. Pt. 2, c. 8, § 2 ; Elder v. Littler, 15 Iowa, 65. ' Wentw. c. 14, pp. 333, 334; Pyer, 156 ft, in wfirg. 8 Anon., 1 Salfe. 313. » Curtis ». Vernon, 3 T. R. 587. LIABILITY OF EXECUTORS. 483 the executor de son tort in an action by a creditor pleads ne unques executor, and this plea is found against him, he admits assets by his pleading^ and the judgnxent will be satisfied out of his own property, if the assets of the estate in his hands are not sufficient.^ The executor de son tort cannot, in a suit by a creditor, attempt to retain a debt due to himself out of the assets, for if this mode of paying debts were adopted, each creditor would become executor de son tort? But an executor de son tort is not liable for breaches of the duties of an ordi- nary executor, for he does not have the office and all its duties, but his liability arises from his tortious acts only. Thus he is not responsible for negligently ^.llowiug the land or other property of the deceased to be taken for debt, as a regular executor would be.^ § 676. Inability to Rightful Bxeoutor. ■■ — As to his liability to the rightful executor, it is clear that he is liable to the fuU value of the assets he has received, except so far as he has applied the assets to the payment of debts and expenses which the regular executor or admiriistrator would have been com- pelled to pay.* In the United Statesi, the liability of an ex- ecutor de son tort has been largely formulated by statute, but, in general, the liability remains much as it was at common law. Thus he is generally held liable to any person aggrieved by his intermeddling, but oply to the extent of assets,^ and to the rightly appointed executor or administrator up to the amount of the assets of the estate which he has taken, and 1 Robbin's Case, Noy, 69; Wentw. OfE. Ex. c. 14, pp. 331, 332, 14th ed, ; Mitchel v. Luatr 4 Maaa. 654, 658. 2 Coulter's Case, 5 Co. 30 a ; Carey v, Guillow, 105 Mass. 18, 21, per Chapman, C. J. « Mitchel V. Lunt, 4 Mass. 658; Brown v. Leavitt, 26 N. H. 494, 495; Campbell v. Shelden, 13 Pick. 824; Kinard v. Young, 2 Rich. Eq. 247. « (Jraysbrook v. Fox, Plowd. 282; Padget v. Priest, 2 T. R. 100; Carey v. Guillow, 105 Mass. 18, 21 ; Weeks v. Gibbs, 9 Mass. 74 ; Mass. Pub. Sts. c. 132, § 18. 6 Hill V. Henderson, 13 Sm. & M. 688; Elder v. Littler, 15 Iowa, 65; Mass. Pub. Sts. c, 132, § 17. 484 LAW OP EXECUTORS AND ADMINISTRATORS. for all damages resulting from his acts relating to the estate.^ § 677. Liability on Bond to pay Debts and Legacies. — The effect of giving a bond to pay debts and legacies has been already discussed.^ It is sufficient to reiterate here that giving such bond acts as a conclusive admission of assets by the ex- ecutor or administrator de bonis non who gives it, and he is bound to pay all just debts and legacies, whether the estate is sufficient so to do or not.^ This rule of liability has, however, been attacked in a recent case in Massachusetts,* in which a creditor brought suit on a debt due by the testator against the executor as such, on which he recovered judgment and sued scire facias on suggestion of waste. The executor had given bond to pay debts and legacies, and maintained that he was bound only up to the penal sum of the bond, and not person- ally. The court, without deciding whether the liability of an executor who has given such a bond was an unlimited personal liability, or whether it was limited by the penalty of the bond, decided that the executor could not, in such circumstances, retain a debt of his own against the claim of the creditor. It can hardly be doubted, however, that the liability is a personal one. The act of giving such a bond vests all the estate in the executor, and no inventory of it is made.^ The ordinary fund for the payment of debts is thus withdrawn, but only upon the giving a bond conditioned that the executor will pay the debts and legacies ; and the giving this bond is a conclusive admis- sion of assets.^ The executor is therefore personally liable, just as when, in other cases, he is bound by an admission of assets. To the objection that hardship may arise if debts to 1 Mass. Pub. Sts. c. 132, § 18. 2 Supra, §§ 267-269. » Troy Nat. Bk. v. Stanton, 116 Mass. 435; Jenkins v. Wood, 140 Mass. 66; State ». Nichols, 10 G. & J. 48. < Jenkins v. Wood, 144 Mass. 238. 6 Brooks V. Rice, 131 Mass. 408. 8 Colwell V. Alger, 5 Gray, 67. LIABILITY OP EXECUTORS. 485 an amount largely in excess of the assets are discovered later, it may be replied that the executor's own act has put him in that position, and therefore he should suffer rather than an innocent creditor, as might happen if the rule were otherwise and the executor should give a bond with a small penalty, fraudulently concealing the great mass of assets. This lia- bility, however, is barred by the special statute of limitations, in the same way as all other liabilities of the executor or administrator.^ § 678. Liability only in State of Appointment. — It has already been seen ^ that an executor or administrator is liable to suit only in the State in which he has been appointed ; ^ but if he collects assets in another State, he will be liable there as ex- ecutor de son tort as to such assets.* A judgment obtained in one State against an administrator will not lie in another State against another administrator for lack of privity,^ or against an executor on a judgment obtained against an ancillary ad- ministrator in another State ; ® nor would a judgment against an executor qualified in one State, be conclusive against a co-executor qualified in another State ; but it has been said that it might be admissible in evidence for certain purposes.'^ § 679. Action for Legacy. — At common law, no action lies against an executor for a general legacy,^ but the remedy is in equity ; but a specific legacy, after the assent of the executor, 1 Jenkins v. Wood, 140 Mass. 66; s. c. 134 Mass. 115. 2 Supra, §§ 563, 570. 8 Norton v. Palmer, 7 Cush. 523, 524; Goodall v. Marshall, 11 N. H. 88; Pond v. Makepeace, 2 Met. 114; Cutter v. Davenport, 1 Pick. 86. * Wms. Ex'rs, 2042. 8 Stacy V. Thrasher, 6 How. 44 ; Slauter v. Chenowith, 7 Ind. 211 ; Jones V. Jones, 15 Tex. 463; King v. Clarke, 2 HiU (S. C.) Ch. 64. ^ Low V. Bartlett, 8 Allen, 262. But see Latine v. Clements, 3 Ga. 426. ' Hill V. Tucker, 13 How. (U. S.) 458; Goodall v. Tucker, 13 How. (U. S.) 469. 8 Deeks v. Strutt, 5 T. K. 690; Doe v. Guy, 3 East, 124. 486 LAW OP EXECUTORS AND ADMINISTRATORS. may be recovered by an action at law.^ And by statute in many of the United States, any legacy, general or special, may be recovered in an action at law, if there are assets to pay it.2 § 680. Action for Distributive Share. — As to distributive shares of an intestate's estate, it is held in England that no action at law will lie for a distributive share, even though the administrator may have expressly promised to pay it ; ^ but in most of the United States, after a decree of distribution has been passed in the probate court settling the amount due to each distributee, an action will lie at law upon this decree fof the share due to the plaintiff.* The more ordinary form, however, of action against an ad- ministrator by those entitled to distribution of the estate, is a suit upon the probate bond. There can be no direct suit by them for their distributive shares, until after a decree of dis- tribution has been passed, and the probate accounts settled, for, until then, it must be uncertain whether there will be any remainder to distribute. To ascertain whether there is such remainder, the proper remedy of an heir claiming a distributive share is to cite the administrator to settle his account, and, if there be a surplus appearing on such account, to apply to the probate court to make a decree of distribution 1 Williams v. Lee, Atk. 223; Colwell v. Alger, 5 Gray, 67; Blackler v. Boott, 114 Mass. 24, 26. 2 Mass. Pub. Sts. c. 136, § 19; Blackler v. Boott, 114 Mass. 24, 26; Colwell V. Alger, 5 Gray, 67; Pollard v. Pollard, 1 Allen, 490; Kent v. Dunham, 106 Mass. 586; Tappah v. Tappan, 30 N. H. 505; Warren v. Rogers, 2 Root, 166; Knapp v. Hanford, 6 Conn. 176; Colt v. Colt, 32 Conn. 422, 451; Smith v. Lambert, 30 Me. 137; Presoott v. Morse, 62 Me. 447; Cowell v. Oxford, 6 N. J. L. 432; Clark v. Herring 5 Binn. 33. 8 Jones V. Tanner, 7 B. & C. 542. * Cathaway v. Bowles, 136 Mass. 54; Shriver r. State, 65 Md. 285; Cora. V. Hammond, 10 B. Mon. 62; Negley v. Gard, 20 Ohio, 310; Gould V. Hayes, 19 Ala. 438; Waldsmith v. Waldsmith, 2 Ohio, 156; App v. Dreisbach, 2 Rawle, 287; SoUiday v. Bissey, 12 Pa. St. 347; Henry v. Dilley, 25 N. J. L. 302. LIABILITY OF EXECUTORS. 487 according to law. After such a decree is made, it becomes a part of the duty of the administrator to distribute the estate according to the provisions of the decree, and if he refuses to pay a distributiye share on demand, this refusal is ipso facto a breach of the bond^ and the distributee may, after demand of payment and refusal, forthwith bring an action on the pro- bate bond for his own benefit^ without any permission or au- thority of the judge of probate. In such action on the bond, the decree of distribution not appealed from is conclusive of the right of the distributee, and its validity cannot be drawn in question by any pleading or proof ; ^ and if a payment is made by the administrator in accordance with this decree, he is pro-- tected by the decree, and the validity of the payment cannot be questioned.^ After a decree of distribution has been made, and nothing remains but to pay money over to the distributee, it seems that a direct action upon the decree would lie against the administrator, as well as an action on the probate bond.^ § 681. Parties to Actions ; Venue. — The rules as to parties in actions against executors or administrators have beeh already given, so far as they present exceptional features.* The venue of transitory actions is generally regulated by statute in the various States, according to the method of administration adopted. The venue of transitory actions by or against ex- ecutors or administrators in Massachusetts is, by statute, allowed to be in any county in which such actions might have been brought by or against the testator or intestate at the time of his decease.^ In Texas, it is in the county in which the estate is being administered.® When not regulated by 6ta;tute, it is as at common law ; that is, in the county where the executor or administrator resides.^ 1 Loring V. Steineman, 1 Met. 208; Cathaway v. Bowles, 136 Mass. 54. ^ Pierce V. Pfescott, 128 Mass. 140; Cathaway v. Bowles, supra; Lor- ing V. Steineman, supra ; White v. Weatherbeei 126 Mass. 450. ' Cathaway v. Bowles, supra. * Supra, §§ 649, 650. ' Mass. Pub. Sts. o. 161, § 2. « Richardson v. Pruitt, 3 Tex. 223. ' Wms. Ex'rs, 1938. 488 LAW OP EXECUT0K8 AND ADMINISTRATOES. § 682. Suits in Federal Courts. — The court in which actions against an executor or administrator must be brought is de- cided by the local practice, which it would not be advisable to discuss in this work. One point, however, belongs rather to the general law ; and it is the question whether suits can be brought in the Federal courts, on a demand against an execu- tor or administrator, particularly when the estate is insolvent. It has already been seen that, in most States, insolvent estates are settled by filing all claims in the probate or some similar court, and then distributing the assets proportionably, and that any creditor who does not so file his claim is barred.^ It has, however, been held in the supreme court of the United States, that when the creditor and the executor or administrator are residents of different States, the creditor may bring suit in the circuit court of the United States, and establish his debt by a judgment, even when the estate is being disti-ibuted as an in- solvent estate in the probate court of the State ; and, if there proves to be a surplus over debts, the creditor may enforce his debt against the surplus.^ But he cannot have execution, and levy on the property of the estate if it has been duly reported as insolvent, and is being distributed as such in the State court, for that would give him an undue preference.^ It does not appear to have been yet decided what measures the Federal courts will take to give such judgment creditor an equality in distribution with the creditors who have proved in the State courts, but they have asserted the right to do so. * § 683. Attachments ; Service of Writ. — If the cause of action is for a debt due by the deceased, there can be no attachment of the goods of the executor or taking of his body, and the writ must be framed for an attachment of the goods of the 1 Supra, §§ 408, 409. 2 Green v. Creighton, 23 How. 90; Suydam v. Brodnax, 14 Pet. 67; Union Bank i: Jolly, 18 How. 503. 8 Williams v. Benedict, 8 How. 107: Peall v. Phipps, 14 How. 368; Bank of Tennessee v. Horn, 17 How. 157. * Greien v. Creighton, supra. LIABILITY OP EXECUTOES. 489 deceased in the hands of the executor or administrator, and a summons to him to appear in court.^ If there are several ex- ecutors or administrators named as defendants, the writ must be served on all.^ If the writ is made out against the defend- ant personally, and his estate is attached, an amendment may be allowed by which the defendant is charged in his repre- sentative capacity, but only on discharging the attachment and such terms as to costs as the court thinks fit.^ § 684. Joinder of Counts. — As to joinder of causes of action against an executor or administrator, at common law, the rule is, that counts against him in his representative capacity can- not be joined with counts against him personally, because the judgments would be different, in one case being de bonis tes- tatoris, and in the other, de bonis propriis ; and this misjoinder is matter of substance, available on general demurrer, or errorj or in arrest of judgment.* Therefore, a count for money had and received by the defendant, as executor, for the plaintiff's use, or for money lent to the defendant as executor, or for interest, alleging forbearance to the executor at his request, cannot be joined to a count on a promise by the testator or intestate.* For the same reason, a count upon a promise by the defendant, as executor, to pay for use and occupation of premises after the death of the testator, cannot be joined in the same declaration with a promise of the testator to pay rent.^ So, a count for goods sold to, or work done for, the 1 Mass. Pub. Sts. c. 166, § 5; Cooke v. Gibbs, 3 Mass. 197; Qaigg », Kitfcredge, 18 N. H. 137. See infra, §§ 718, 719. ^ Owen V. Brown, 2 Ala. 126; Jones v. Wilkinson, 3 Stew. (Ala.) 44; Barnes v. Jarnagin, 20 Miss. 108; Wynn v. Booker, 26 Ga. 553; Tappan v. Bruen, 5 Mass. 196. » Lester v. Lester, 8 Gray, 437. * Jennings v. Newman, 4 T. R. 347; Rose w. Bowler, 1 H. Bl. 108; Seip V. Drach, 14 Pa. St. 352; Moody «. Erving, 8 B. Mon. 521; Godbold V. Roberts, 20 Ala. 354; Myer v. Cole, 12 Johns. 349; Demott v. Field, 7 Cow. 58; Reynolds v. Reynolds, 3 Wend. 244; Gillett v. Hutchinson, 24 Wend. 184. 6 2 Saund, 117 h, note. « Wigley v. Ashton, 3 B. & Aid. 101. 490 LAW OP EXECUTORS AND ADMINISTEATOES. defendant, aS executor, canhot be joined with a count for a debt due from the defendant in his representative capacity, for the liability of the defendant for work done is personal, and not representative.^ But a count on an account stated, or of money paid to the use of defendant as executor, may be joined with a count on a promise of the testator, since all counts would tiien be in the representative capacity, and judgment de bonis tegta- toris? And in any case, where all the counts are such that judgment will be de bonis testatoris, and not de bonis propriis, the counts are rightly joined, although some of the counts are on a promise by the testator, and some on a promise by the executor, as such, on a liability existing in the life of the testator or intestate.^ § 685. Pleas ; never Ezeoutbr. — As to pleas, the executor or administrator can plead any plea which would have been pleadable by the testator or intestate ; * and, in addition, he may deny his official character by pleading we unques executor; or admitting it, he may plead that he has no assets, or, in States where the doctrine of retainer is still held, a retainer to pay his own debt or debts of a superior degree sufficient to exhaust the assets ; ^ or he may plead the special statute of limitation of actions against executors or administrators ; at he may represent the estate insolvent. If the defendant would conti-overt the fact of the representative character by the plea of ne unques executor or administrator^ the burden of proving the affirmative is on the plaintiff, who must prove not only the appointment of the defendant to that office, but that he has taken upon himself the trust ; and this may be by his proving the will, or taking the oaths and giving bond, or, if he is 1 Corner v. Shew, 3 M. & W. 350. 2 Wms. Ex'rs, 1939, 1940. 8 Carter v. Phelps, 8 Johns. 440; Malin v. Bull, 13 Serg. & E. 441; Reeve v. Cawley, 17 N. J. Li 413 ; Vaughn v. Gatdner, 7 B. Men. 326 ; Howard v. Powers, 6 Ohio, 92. * Com. Dig. Pleader, 2 D. 8. 5 Tidd, 644, 9th ed. LIABILITY OP EXECUTORS. 491 charged as executor de son toH, by proving acts of intermed- dling with the estate. The plaintiff should always take the precaution where this plea is pleaded to serve the defendant with notice to produce the letters testamentary or letters of administration at the trial, they being presumed to be in his possession, in order to lay a foundation for the introduction of secondary evidence.^ If the defendant riefuses to produce the letters, the plaintiff may prove the representativis capacity of the defendant by a certified copy of the decree of thd probate court granting administration.^ He must also give some evidence of the identity of the party with the person de- scribed in the letters as executor or administrator. If the evidence shows the defendant liable as an executor de son tort^ by intermeddling, he may discharge himself by proof that he delivered over the goods to the rightful executor before action brought, but not afterwards ; ^ or that he subsequently took out letters of administration, and has administered the estate according to law.* If there are several defendants who plead ne unques executor^ and the issue is against some and in faVor of others, the plaintiff may have judgment against those that are, if the action is upon a promise of the testator, but not if it is upon a joint promise of the defendants as executors.^ It is a good plea, if the executor or administrator plead that he has been removed from office, and paid over all the estate to his successor in office ; and this plea is good even though the re- moval took place after the beginning of the suit.® 1 2 Saund. Plead. & Evid., 511, 512 ; 2 Greenl. iEvid.i § 344; 2 Start. Evid., 320; Douglas v. Forrest, 4 Bing. 686, 704; Atkins v. Tredgold, 2 Bi & C. 23, 30; Cottle v. Aldrich, 4 M. & S. 175^ 2 Day V. Floyd, 130 Mass. 488. 8 Curtis V. Vernon, 3 T. R. 587; Vernon v. Curtis, 2 H. Bl. 18; Andrews v. Gallison, 15 Mass. 325. * Shilliabet v. Wyman, 15 Mass. 322; Andrews v. Gallison, Id. 325. 6 Griffith V. Franklin, Mood. & M, 146; Atkins v. Tredgold, 2 B. & C. 30. ^ Jewett V. Jewetti 5 Mass. 275. 492 LAW OF EXECUTORS AND ADMINISTRATORS. Pleas by several Executors. — Generally, if there are several executors or administrators, they may all plead sepa- rate pleas, and it is said that the one to the greatest advantage of the estate will be received. So, if in an action of assumpsit three of four executors pleaded non assumpsit, and the fourth acknowledged the action, the former plea was received.^ But, in a case in New York, it is said that the executor who first pleads has the right alone, and that it is irregular for the others to put in different pleas ; ^ and in a case in Louisiana, it is said that they must agree, and cannot file inconsistent pleas.* § 687. Pleas ; Bankruptcy. — Bankruptcy or insolvency of the executor or administrator is no bar to an action, unless he has incurred a personal responsibility.* The effect of insol- vency of the estate is discussed in an earlier section.^ If the executor becomes liable to the estate by defalcation, his dis- charge in bankruptcy does not discharge him, because it is a debt created by " the fraud or embezzlement of the ad- ministrator, and by his defalcation while acting in a fiduciary capacity, and is not barred by the provisions of the bankrupt act, or by a discharge thereunder." ^ § 688. statute of Limitations. — Reference has already been made to the duty of the executor or administrator in regard to the statutes of limitations.^ As to the mode of pleading by the plaintiff when he intends to rely on a new promise by the executor or administrator to avoid the statute, he should, it is said, insert counts on a promise by the executor or ad- ministrator as such, in addition to the promise by the testa- tor.8 A mere acknowledgment of an indebtedness of the 1 Chaffe V. Kelland, 1 EoU. Abr. 929, tit. Ex'rs, A. pi. 1 ; Wentw. Off. Ex. 212. 2 Salters v. Pruyn, 15 Abb. (N. T.) Pr. 224. ' Hilligsberg, Succ. of, 5 La. Ann. 118. * Serle v. Bradshaw, 2 Cr. & M. 148. « Supra, § 408. 6 Light V. Merriam, 132 Mass. 283. ' Supra, § 670. 8 Parke, B., in Browning v. Paris, 5 M. & W. 120. LIABILITY OP EXECUTORS. 493 testator, is not sufficient to avoid the bar of the statutes. There must be an express promise by the executor or admin- istrator to pay the debt.^ A fuller consideration of the statute of limitations will be made in a later chapter. § 689. Set-off ; Tender. — An executor or administrator cannot set off a debt due to him personally, when he is sued as executor or administrator, because the debts set off must be due in the same right.^ But a debt due to the deceased may be set off in an action of assumpsit against the admin- istrator or executor, on an account stated by him ; for the account only states a debt of the deceased, and not a personal liability of the executor or administrator.^ A plea of tender by an executor or administrator must aver that the deceased was at all times ready to pay the debt up to the time of his death, and that the executor or administrator has at all times since then been ready to pay.* § 690. Plene Administravit. — The executor or administra- tor at common law was obliged to plead a plea of plene administravit, unless he wished to be charged with assets ; for judgment against him on demurrer or default, or any plea except that, was considered to be an admission of assets sufficient to satisfy the judgment.^ But if he pleaded plene administravit, and it was found that assets remained in his hands unadministered, it was held that he was lia- ble for the amount of those assets, but not for the whole debt.^ This rule of the common law is recognized in most 1 TuUoch V. Dunn, Ry. & M. 417; Peck v. Botsford, 7 Conn. 172; Hammon v. Huntley, 4 Cow. 493; Cayuga Bank v. Bennett, 5 Hill, 236; Forsyth v. Ganson, 5 Wend. 558; Oakes v. Mitchell, 15 Me. 360; Mclntire V. Morris, 14 Wend. 90. 2 Bishop V. Church, 3 Atk. 691; Gale v. Luttrell, 1 Y. & Jerv. 180. 8 Blakesley v. Smallwood, 8 Q. B. 538; 11 Ex. 416. * Clement v. Reynolds, Sayer, 18. 6 1 Saund. 219 b, note to Wheatley v. Lane. « Cousins V. Paddon, 2 Cr. M. & R. 558; Re Higgins' Trusts, 2 GifE. 562. 494 LAW OP EXECUTOSS AND ADMINISTEATORS. of the United States as to the admission of assets hy any plea except plene administravit.^ The application of the plea of plene administravit in conr nection with the statute of insolvent estates in the United States is thus stated by Mr. Justice Story : " It does not ap- pear to me that upon principle any special plea of plene ad- ministravit is necessary where the assets have been in fact paid according to the directions of the statute of insolvency ; for if the assets are rightfully applied, the mode is matter of evi- dence, not of pleading. A special plene administravit can only be necessary when the administrator either admits assets to a limited extent or he sets up a right of retainer for the payment of other debts to which they are legally appropriated, or he has paid debts of an inferior nature without notice of the plaintiff's claim. And so is the doctrine of the common law, according to the better authorities. In the next place, it seems to me there may be cases where the estate may be insolvent, and yet the administrator would not be bound to procure a commission and proceed under the statute of insol- vency. If, for example, the assets were less than the privif leged or priority debts, a commission of insolvency would be utterly useless to the other creditors ; and surely the law would not force the administrator to nugatory acts. In such a case, it seems to me that a general plene administravit would be good, if the administrator had in fact applied the assets in discharge of such debts. If he had not so applied them, then he might specially plead these debts, and no assets ultra. Other eases may be put of an analogous nature ; and unless some stubborn authority could be shown founded in our local jurisprudence (and none such has been produced), I should not be bold eaough to overrule what I consider a 1 Piatt V. Robins, 1 Johns. Cas. 278 ; Judge of Probate v. Lane, 50 N. H. 556; Huger v. Dawson, 3 Rich. (8. C.) 328; Dorsey v. Hammond, 1 Bland, 463; Lenoir v.. Winn, 4 Desaus. 65; White v, Archbill, 2 Sneed, 588; Newcomb v. Goss, 1 Met. 333. LIABILITY OF EXBCUTOBS. 495 most salutary doctrine of the common law. Judgments, bonds, and some other debts at the common law are privi- leged debts, and are entitled to a priority of payment. And yet, if the administrator have no notice, either actual or constructive, of these privileged debts, he will be justified in paying debts of an inferior nature, provided a reasonable time has elapsed after the decease of the intestate. And in principle there cannot be any just distinction, whether such payment be volimtary or compulsory. But in such case, if he be afterward sued for such privileged debt, he cannot plead plene administravit, generally, but is bound to aver that he had fully administered before notice of such debt."i The important part of the plea of plene administravit is the allegation that the defendant has not, since the beginning of the suit, had any goods of the deceased to be administered. He paay have had goods before the beginning of the suit, without being liable ; but if he has any after, he is liable to judgment against him.^ In those States whete debts are of various grades a plea may be made up of an allegation of a debt of a higher nature than the one sued Qn, and not assets enough be' yond to satisfy the debt sued on. Indeed, the executor or ad- ministrator is obliged to plead this plea, or he admits assets as to both debts.^ § 691. Evidence under Plene Administravit. t-^ If the plain- tiff traverses the plea of plene administravit in its material 8,llegatiQn of the want of assets in the defendant's hands, the burden of proof will be on the plaintiff to show that the de- fendant had assets in his hands at the commencement of the 1 United States v. Hoar, 2 Mason, 317, 318. See also Haines v. Price, 20 N. J. L. 480; Sawyer v. Sexton, 1 Tayl. (N. C.) 137; White v. Arring- ton, 3 Ired. (N. C.) L. 166; Huger v. Dawson, 3 Rich. (S. C.) 328; Nixon V. Bullock, 9 Yerg. (Tenn.) 414. But the plea is not good under the New York statutes. Allen v. Bishop, 25 Wend. 415. 2 Wms. Ex'rs, 1955 ; Hewlet v. Framingbam, 3 Lev. 28. * Bock V. Leighton, 1 Salk. 310; Earle v. Hinton, 2 Stra. 732. 496 LAW OP EXECUTOBS AND ADMINISTEATOES. action. 1 If the assets have come to his hands since the pen- dency of the suit, this should be specially replied, or the proof will not be admissible.^ If the action is debt, the plea of plene administravit is an admission of the whole debt, which there- fore the plaintiff will not be bound to prove ; but if the action is assumpsit, this plea is only an admission that something is due, but not the amount, and therefore the plaintiff must come prepared to prove it.* The fact of assets in the hands of a defendant executor or administrator, may be shown by the inventory returned by him under oath pursuant to law, which devolves on him the burden of discharging himself from the items which it contains.* So, if he has repeatedly paid in- terest on a bond, or on a legacy, this is prima facie evidence of assets ; ^ but not conclusive.^ As to the stamp required in England and in some States upon probate of a will, it has been urged that, as the stamp varies in value as the assets of the estate are represented by the executor or administrator, the stamp might be considered prima facie evidence of the assets ; but this has not 'been directly decided.'' If the execu- tor or administrator gives his promissory note for a debt of the deceased, this is prima facie evidence of assets.^ So, if 1 Bentley v. Bentley, 7 Cow. 701. See Fowler v. Sharp, 15 Johns. 323 ; 2 Phil. Evid. 295 ; 2 Greenl. Evid. 346. "■ Mara v. Quin, 6 T. K. 1, 10, 11. » Bull. N. P. 140; Saunderson v. Nicholl, 1 Show. 81; Shelley's Case, 1 Salk. 296. * Weeks v. Gibbs, 9 Mass. 74; Bull. N. P. 142, 143; Hickey v. Hayter, 1 Esp. 313; s. c. 6 T. B. 384; Giles v. Dyson, 1 Stark. 32; Ames v. Downing, 1 Bradf. Surr. 321; Marr v. Rucker, 1 Humph. 348. ^ Corporation of Clergymen's Sons v. Swainson, 1 Ves. 75; Cleverly u. Brett, 5 T. R. 8 n; Campbell's Case, LofEt, 68; Attorney-Gen. v. Higham, 2 Yo. & C. 634. ' Savage v. Lane, 6 Hare, 32 ; 17 L. J. Ch. 89 ; Postlethwaite v. Moun- sey, 6 Hare, 33 n. ' See Foster ti. Blakelook, 5 B. & C. 328; Curtis v. Hunt, 1 C. & P. 180; Stearn v. Mills, 4 B. & Ad. 647; Mann v. Lang, 3 Ad. & E. 699. See Lazonby v. Rawson, 4 De G. M. & G. 556. 8 Troy Bank ;;. Hopping, 13 Wend. 575; Holland t;. Clark, 2 Yo. & C. 319. LIABILITY OP EXECtTTOES. 497 he has suhmitted to arbitration, without protesting against the arbitration being considered an admission of assets.^ So, if he confess judgment, or suffer it to go by default, or it be rendered against liim on demurrer to tiie declaration, or if he plead a judgment without averring that he has no assets ultra, or plead payment without also pleading pletie administravit, — any of these is an admission of assets, and may be used against him in a subsequent action on the judgment suggest- ing a devastavit.^ But an award in favor of the estate is not evidence that the executor has received the money ; ° nor is a judgment assets until the amount is levied and paid.* If there are several executors or administrators, and some are shown to have assets in their hands, and others not, the latt€r will be entitled to a verdict.^ When it is necessary for the plaintiff to prove a devastavit under the issue on plene administravit, it may be proved by evidence of any act of. direct abuse, by the executor or admin*- istrator, of the funds intrusted to his management, — such as selling, embezzling, or converting them to his own use ; or by releasing a claim without payment, or selling property below its known value; or by improperly submitting a claim to a]> bitration ; or improperly compounding a debt, having no au-- thority by law so to do; or by payment of usury or the like; or by proof of any other act showing maladministration or neg- ligence, whereby a loss or deterioration of assets has ensued,® — as where he has allowed a debt due to the estate to stand 1 Barry v. Rush, 1 T. K. 691; WortHington v. Barlow, 7 T. R. 453; Riddle v. Sutton, 5 Bing. 200. But see Pearson v. Henry, 5 T. R. 5, contra. 2 Skelton v. Hawling, 1 Wiis. 258; 1 Sauud. 219, note (8); Roberts v. Woods, 3 Dowl. P. C.797; Ewing v. Peters, 3 T. R. 685; Rock.o. Layton, 1 Ld. Raym. 589 ; s. c. 3 T. R. 690, 694. s Williams v. Innes, 1 Gampb. 364. * Jenkins v. Plume, 1 Salk. 207i. 6 Parsons v. Hancock, 1 M. & Malk. 330 ; 2 Greenl. Evid. § 347. » See Toller, Ex'ra, Bk. 3, c. 9 ; 3 Bao, Abr. Ex'rs, L. ; 2 Kent, Comm. 416; 2 Greenl. Evid. § 3.47 o^ 32 498 LAW OP EXECUTORS AND ADMINISTRATORS. until it becomes uncollectible.^ The burden of proving a devastavit is on the party alleging it, not on the executor or administrator.^ § 692. Defences under Plene Adminiatravit. — The defend- ant, under a plea of plene adminiatravit, may rebut the proof of assets by showing that he has exhausted them in payment of other debts of the deceased not inferior in degree to that of the plaintiff, before the commencement of the action.* And if debts of an inferior degree have been paid before the com- mencement of the action, or if debts of a superior degree have been paid while the action was pending, this may also be shown under a special plea ; but in the former case it must be averred and proved that the payment was made without notice of the plaintiff's claim.* By the common law the execu- tor or administrator will be presumed to have notice of judg- ments of a court of record, and all other debts of record ; but of other debts actual notice must be proved.^ When ^Ze«e administravit is pleaded to an action of debt on bond, the de- fendant must prove that the debts paid were due by bonds sealed and delivered, or that they were of higher degree, and entitled to priority of payment ; but where this issue arises in an action for debt due by simple contract, it is suflBcient to prove the prior payment of a debt of any sort, without proof of the instrument by which it was secured, for it is a good payment in the course of administration.^ In either case the creditor is a competent witness to prove both the existence of his debt and the payment of the money .^ But where the debt is said to have become due by bond, which has been de- 1 Coco's Succ, 32 La. Ann. 325 ; Tanner «. Bennett, 33 Gratt. (Va.) 251. 2 Kitter's Est., 11 Phila. 12; Johnson's Est., lb. 83; Kirby v. State, 51 Md. 383. « Hickey v. Hayter, 6 T. R. 388; Smedley v. Hill, 2 W. Bl. 1105. * Sawyer v. Mercer, 1 T. R. 690; Anon., 1 Salk. 153 ; Toller, Ex'rs, 269. « 1 Com. Dig. 352, tit. Admin. C. 2; Dyer, 32 a. • Bull. N. P. 143; Saunderson v. NichoU, 1 Show. 81. ' Bull. N. P. 143; Kingston v. Gray, 1 Ld. Eaym. 745. LIABILITY OP EXECUTOES. 499 stroyed, it has been thought that the attesting witnesses or some other evidence of the existence of the bond ought to be produced.^ § 693. Defences under Plene Administravit. — Under this issue, the defendant by the common law may in certain cases give in evidence a retainer of assets to tlie amount of a debt of the same or a higher degree due to himself, in States where such retainer is allowed ; ^ or to the amount of the expenses of administration, for which he has made himself personally responsible ; ^ or to the amount of debts of the same or higher degree which he has paid out of his own money before the commencement of the action.* But if the payment was made to a co-executor to be paid over to the plaintiff, which he has not done, it is no defence ; the receiver being in that case made the agent of the defendant himself, and not of the plaintiff.® But in most of the United States the right of an executor or administrator to retain for a debt due to himself or for moneys which he has paid for expenses of administra- tion, has been qualified by statutes, not necessary here to be stated ; so that ordinarily he cannot retain for his own debt until it has been proved and allowed in the court where the estate is settled, and then only under its decree upon the settlement and allowance of his account of administration. § 694. Retainer. — In order to sustain a claim of retainer, where such claim is allowed, it is necessary for the party to show that he has been rightfully constituted executor or ad- ministrator ; and for this cause, as well as to prevent strife among creditors, an executor de son tort cannot retain, as has been already said,® for his own debt, although it be of a higher degree, unless he has since duly received letters of adminis- 1 Gillies 0. Smither, 2 Stark. 528 ; 2 Greenl. Evid. 348. 2 Supra, § 420; Bull. N. P. 140,141; Co. Litt. 283 a/ Plumer v. Mar- chant, 3 Burr. 1380; 1 Saund. 333, note (8). 8 Gillies V. Smither, 2 Stark. 528. * Bull. N. P. 140; Smedley v. Hill, 2 W. Bl. 1105. 6 Crosse v. Smith, 7 East, 246, 258. » Supra, § 676. 600 LAW OP EXECUTORS AND- ADMINISTEATOES. tration. But under the plea of plene administravit lie may show that he has paid other debts in their order, or that be- fore action brought he had delivered all the assets in his hands to the rightful executor or administrator.^ § 695. Special Pleas. — If the defendant would give in evi- dence the existence of outstanding debts of a higher nature, entitled on that account to be preferred, but not yet paid, he can do this only under a special plea. If the debts are due by obligations already forfeited, the penalties are ordinarily to be taken as the amount of the debt, unless by a proper replication it is made to appear that the penally is kept on foot by fraud. But if the obligation is not yet forfeited, the sum in the condition is to be regarded as the true debt, and assets can be retained only to that amount ; for the executor by payment of this sum may save the penalty ; and if he does, it will be a devastavit? In these cases, when the defend- ant seeks to retain the assets in his hands to meet debts of a higher nature, whether by bond or judgment, though the plea in point of form contains an averment of the precise value of the goods in his hands, yet the substance of the issue is that the value of the goods, whatever it be, is not greater than the amount actually due on the bond or judgment.^ And where an outstanding judgment is pleaded, with a replication per fraudem, the judgment creditor is not a competent witness for the defendant to disprove the fraud.* If several judg- ments or debts are pleaded, and the plea is falsified as to any of them, the plaintiff will be entitled to recover.^ 1 Bull. N. P. 143 ; Ghitty's Prec. 301 ; Curtis v. Vernon, 3 T. E. 587, 590; Anon., 1 Salk. 313; Oxenham v. Clapp, 3 B. & Ad. 809; 2 Greenl. Evid. § 350. 2 United States v. Hoar, 2 Mason, 311; Bull. N. P. 141; 1 Saund. 333, notes (7), (8) ; Parker v. Atfield, 1 Salk. 311. 8 Moon V. Andrews, Hob. 133; 1 Saund. 333, note (7). * Campion v. Bentley, 1 Esp. 343. 6 Campion v. Bentley, supra; Bull. N. P. 142; Parker v. Atfield, 1 Salk. 311; 1 Ld. Raym. 678; 2 Greenl. Evid. § 351. UABILITY OF EXECUTOES. 601 § 696. Insolvency of Estate. — The foregoing pleas of plane administravit and other special pleas are largely rendered un- necessary by the statutes relating to insolvency of estates, by which, if there are two or more debts which amount to more than the assets of the estate, the executor or administrator may represent the estate as insQlvent, at any time before judgment, and the case then proceeds to judgment, but no execution issues. Thus, in Massachusetts, the executor or administrator is not bound to pay any debt till after a year of office has expired. Then, if there are not debts enough of which he has been notified to make the estate insolvent, he may pay all debts in full, and, if others come in after- wards, he may represent the estate insolvent if there are two or more siich new claims, or he may plead plene administravit if there is but one ; but if ie does not represent the estate insolvent when it really is,, and he knows it is, until after judg- ment, he is estopped from doing so after judgment, and must be held liable de bonis propriis.^ If he represents the estate as insolvent in the probate court, and proceedings are had thereupon, a suit pendiag may proceed to judgment, but execution will not issue.^ § 697. Judgments against Executors or Administrators. — When the executor or administrator is sued in his representa- tive capacity upon a cause of action which cannot be supported against him except as such representative, and he pleads any plea which admits his being executor or administrator, except a release to himself, the judgment at common law is against the assets of the estate, but costs out of the defendant's own goods, if the assets are not enough to satisfy both.^ Thus, when he pleads non assumpsit, or payment, or plene adminis- 1 Kewoomb v. Goss, 1 Met. 333. 2 Mass. Pub. Sts. c. 137, § 31. 8 1 Saund. 385, note (10) to Hancock ». Prowd; Gorton v. Gregory, 3 B. & S. 90; Mass. Pub.. Sts. c. 166, § 8; Justices, &c. v. Sloan, 7 Ga. 81; Jameson v. Martin, 3 J. J. Marsh. 830; Sigler ,v. Haywood, 8 Wheat. 675; Montfort v. Vanarsdalen, 5 N. J. L. 686. 502 LAW OF EXECUTORS AND ADMINISTEAT0E8. travit, the judgment is for the debt out of the assets, and costs out of the executor's goods, if the assets of the estate are not sufficient to satisfy both.^ But if the defendant pleads ne unques executor, or a release to himself, judgment against him is that the plaintiff recover his debt and costs from the estate, and, if that is not sufi&cient^ both debt and costs out of the defendant's own property.^ The fact has already been ad- verted to, that the result in the two cases is not very different, for the judgment in the former case is an admission of assets, and may be followed by scire facias on suggestion of devastavit, in which case the judgment and return on the execution of nulla bona are almost conclusive of devastavit.^ The subject of costs will be considered in a later chapter. § 698. Judgment for Future Assets. — At common law, a creditor might escape the effect of a plea of plene administra^ vit, by admitting its correctness, and taking judgment of as- sets in the future, that is, quando aceiderint.* This judgment is final, if the action is on a liquidated claim ; and, if the claim is not liquidated, then there must be a writ of inquiry or a trial by jury, to assess damages.^ But if he takes issue on the plea, and it is found against him, it is held, in England, that he cannot have judgment of assets quando acciderint.^ But, in the United States, it seems that he may have judgment for assets quando acdderint^ If the plaintiff confesses the plea of plene administravit, and takes judgment for assets quando 1 Wentw. Off. Ex. 341-346, 14th ed. ; Rock v. Leighton, 1 Salk. 310 ; Kamsden v. Jackson, 1 Atk. 292, 294; Swearingen v. Pendleton, 4 Serg. & R. 889, 396; Frink v. Luyton, 2 Bay, 166. 2 Bro. Ex'rs, 34 ; Bull v. Wheeler, Cro. Jac. 648. 8 1 Saund. 337, note (1). * Noell V. Nelson, 2 Saund. 226; Parker v. Dee, 3 Swanst. 532; Skinner V. Frierson, 8 Ala. 915; Miller v. Towles, 4 J. J. Marsh. 255; Wilt v. Bird, 7 Blackf. 258. 6 Tidd, Practice, 683, 9th ed. « 1 Boll. Abr. 929, B. pi. 2; 2 Saund. 217, note (1). ' Burnes ». Burton, 1 A. K. Marsh. 349 ; Osterhout v. Hardenburgh, 19 Johns. 266. LIABILITY OP EXECUTORS. 503 acciderint, this judgment binds all assets which accrue sub- sequent to the filing of the plea.^ § 699. Execution and other Proceedings, — The proceedings subsequent to judgment in an action against an executor or administrator de bonis testatoris, are primarily against the estate of the deceased. Of course, execution may be issued against the goods and estate in the hands of the executor or administrator, by a writ of fieri facias, de bonis testatoris ; ^ and in some States, by statute, an execution may be levied upon the real estate for the same purpose,^ or upon scire facias it may be taken.* At common law, if the judgment was not sat- isfied by this proceeding, and the sheriff returned nulla bona and suggested waste, the executor or administrator might be taken and imprisoned in the same way as for a xiebt of his own, or execution against his own goods might be had, on the principle stated above ; ^ but, in the United States, it is gen- erally the rule that the execution cannot issue directly against the person or estate of the executor or administrator except for costs, but only upon a scire facias.^ Even at common law it was more common to have the execution returned unsatis- fied, and then a scire fieri inquiry to be made as to waste, — which was merely formal, to establish proof of waste on the record, — and then a scire facias issued to the defendant to show cause why the execution should not issue de bonis propriis ; "^ and this mode is substantially adopted in some States, except that the scire fieri inquiry is sometimes omitted, and the ques- tion of waste is tried upon the scire facias? It has already 1 Orcutt V. Orms, 3 Paige, 459. 2 Wms. Ex'rs, 1983; Greenwood ». Spiller, 3 HI. 502; Scott u. Mitchell, 1 Mo. 764. 8 Mass. Pub. Sts. c. 172, §§ 55-57. * Murphy's App., 8 Watts & S. 165. « Supra, § 697; Wms. Ex'rs, 1984; Tidd, Practice, 1025, 1113. 6 Mass. Pub. Sts. c. 166, §§ 5, 8, 10; Look o. Luce, 136 Mass. 249. ' Wms. Ex'rs, 1983, 1984. 8 Mass. Pub. Sts. c. 166, § 10; Cooper v. Hanna, 2 Ind. 97; Peaslee v. Kelley, 38 N. H. 372; Cude v. Spencer, 7 Humph. 278; Cope v. McFarland, 504 LAW OP EXECUTORS AND ADMINISTRATOES. been said that the issue of waste is almost inevitably found against the defendant, for the- judgment is an admission of assets, and the sheriff's return shows that there are no assets found' by him. Therefore, it follows that the defendant has wasted the assets, unless he shows that there were assets from which the execution might have been satisfied, and that he showed them to the slieriff.^ § 700. Debt on Judgment. — Another mode of enforcing the judgment de bonis testatoris against the goods or estate of the executor or administrator, at common law, is by action of debt on the judgment suggesting a devastavit. This form of action is founded on the judgment obtained against the executor or administrator, which is conclusive of assets. TJierefore, the judgment, the execution, and sheriff's return of nulla bona, prove the case.^ At common law, neither to the scire facias nor to the action of debt on the judgment can the defendant set up want of assets, for the judgment concludes him on this point ; ^ and the only defence he can make is, that there were goods which might have been taken to satisfy the execution, and that he showed them to the sheriff.* But, in the United States, the strictness of this rule has sometimes been relaxed, and it has been held that the executor or administrator may controvert the fact of assets or waste, and go into the whole case.^ It has been said, in a case in Massachusetts, that the action of debt on a judgment and a suggestion of waste has 2 Head (Tenn.), 543; People v. Judges of Erie, 4 Cow. 445; Hussey v. White, 10 Serg. & R. 346. 1 Wms. Ex'rs, 1984-1986. 2 Wms. Ex'rs, 1987, 1988; Burnley v. Lambert, 1 Wash. (Va.) 308; Sampson v. Payne, 5 Munf. (Va.) 176; Burke v. Adkins, 2 Port. (Ala.) 236. » Wms. Ex'rs, 1985, 1988; Eppes v. Smith, 4 Munf . (Va.) 466; Cude V. Spencer, 7 Humph. 578; Moore w. Martindale, 2 Blackf. (Ind.) 353. « Wms. Ex'rs, 1988. s Lee V. Gardner, 26 Miss. 521; Mass. Pub.Sts. c. 166, § 10; Jenkins v. Wood, 144 Mass. 243. See also Cude v. Spencer, 7 Humph. 278; Cogan V, Duncan,^3 Miss. 274; Loftus v. Locker, 1 J. J. Marsh. 297. UABILITT OF EXECUTOES. 505 never been adopted in that State, and that the only way in which the executor or administrator can be held personally liable is by the process of scire facias, mentioned above, which is enacted by statute in that State.^ That case was an action on a judgment against the. executor for a d6bt due by the tes- tatrix. The case was decided upon the statute of limitations, the suit on the judgment having been begun. more than two years after the defendant had filed his bond ; and the court held that the action was a new suit, and therefore barred by the statute, but also went on to say that the scire facias is the only mode of enforcing the judgment against the executor personally .2 Another remedy against the executor or admin- istrator personally is the suit on his probate bond, which will be considered later.* § 701. Enforcing Judgment against Testator or Intestate. — K a defendant dies after judgment and before execution, there are two ways in which execution may be enforced : one by action of contract on the judgment against the executors or administrators, the other by scire facias on the judgment for the issuing of execution thereon against the executor or ad- ministrator ; * but.no action of debt on a suggestion of waste will lie, for there is no admission of assets against the execu- tor or administrator.^ In .England, the practice was to issue execution on the judgment at any time within a year, dating it during the life of the defendant; but this practice is now stopped by the statutory provision that the execution must be dated on the day it is actually issued, and never has obtained in the United States.^ 1 Mass. Pub. Sts. c. 166, § 10; Jenkins w. Wood, 140 Mass. 66. * See also Jenkins v. Wood, 134 Mass. 115. * Infra, Suits on Bonds. * Knapp V. Knapp, 134 Mass. 354; Tidd, Practice, 1119 ; Heapy v. Parris, 6 T. K. 368; Bragner v. Langmead, 7 T. R. 20. » Wms. Ex'rs, 1991. 6 Wms. Ex'rs, 1991; Hildreth ». Thompson, 17 Mass. 190. 506 LAW OF EXECUTORS AND ADMINISTRATORS, CHAPTER XXV. ACTIONS AGAINST EXECUTORS AND ADMINISTRATORS IN EQUITY, AND PROCEEDINGS IN THE PROBATE COURT. § 702. Liability on Equities against § 710. Marshalling between Heirs and Deceased. »703. Liabilities arising after the Death 711. Personal Estate primarily liable of the Deceased. for Debts. 704. Creditor's BUI for Administra- 712. Subrogation of Heir to Eights of tion. Legatees. 705. Proceedings in Creditor's Suit. 713. Parties to Creditor's Bill. 706. Administration Suits by Lega- 714. Equitable Defences. tees and Distributees. 715. Limited Equitable Jurisdiction 707. Eqiutable Assets. in some States. 708. Marshalling Assets. 716. Nature of Jurisdiction in Probate 709. Same subject. Court. § 702. Liability on Equities against Deceased. — The liabili- ties of an executor or administrator in equity may be divided in the same way as his liabilities at law were divided ; that is, those which existed against the deceased in his lifetime, and which are after his death cast upon the executor or adminis- trator by virtue of his office, and those which arise after the death of the testator or intestate, and are enforceable against the executor or administrator. As to the first of these, the executor or administrator is liable to all the equitable de- mands which were enforceable against the deceased.^ § 703. Liabilities arising after Death of Deceased. — Many equitable liabilities may be incurred by an executor or admin- istrator in the course of settling an estate ; but they arise from contracts or acts of the executor or administrator in adminis- tering the estate, just as equitable liabilities are incurred in the transaction of ordinary business, and need not be further 1 ToUer, 479; Wms. Ex'rs, 2005. ACTIONS IN EQUITY. 507 referred to than has already been done incidentally to the discussion of the duties of administration, or to the liabilities at law. The most important point to be noticed as to pro- ceedings in equity against executors is the process by which the whole settlement of the estate is taken from the probate court and assumed by a court of equity. This transference arose from the inability of the ecclesiastical courts to carry out their decrees and to enforce the proper administration of the estate ; and the jurisdiction in equity thus assumed was strengthened by the fact that for almost all purposes execu- tors and administrators are considered trustees of the estate which they are administering. In the United States, this equitable jurisdiction is rendered in some States less necessary by the increased efficiency of the decrees and orders of the probate court, supplemented by the power of those interested in the performance of any decree to sue on the probate bond in case the decree is disobeyed.^ On which of the two grounds mentioned above the founda- tion of the jurisdiction in equity rests, is not agreed by the authorities. It is sometimes said to be founded in the fact that in equity all executors and administrators are considered to be trustees, and that administration suits are suits to en- force a trust by compelling the executor or administrator to pay debts in their proper order, and to pay the surplus, if there is any, over to the persons entitled to it by the will, or, in cases of intestacy, to those entitled to it by the statute of dis- tributions.2 But the inadequacy of the courts of probate and law, in England, to enforce the proper settlement of the estate furnishes quite as firm a foundation for such a jurisdiction. For instance, if there are equitable assets belonging to the estate, the proper administration of these assets can only be 1 Wilson V. Leishman, 12 Met. 316; Morgan v. Botch, 97 Mass. 396; Walker v. Cheever, 35 N. H. 345; Story, Eq. Jurisp. § 533. 2 Adair v. Shaw, 1 Sch. & Lef. 262; Wms. Ex'rs, 2005; Story, Eq. Jurisp. § 532. 508 LAW OF EXECUTORS AND ADMINISTRATORS, had in a court at equity ; and if a discovery of assets is sought, a court of equity is the proper court for such inquiry ; and in regard to legacies, the same inadequacy of remedy at law exists in England.^ § 704. Creditor's Bill for Administration. — The most ordi- nary form in which this jurisdiction is asserted is in what is called a creditor's bill. Such a bill may be brought by a creditor to secure the payment of his debt only, or it may be brought by one creditor in behalf of himself and all other creditors. In the former case, he filesa bill for the payment of his debt, and seeking a discovery and account of the assets for this purpose ; and if his debt is proved, and the account shows assets belonging to the estate, and a proper case is made for payment of the debt, the court will order his debt paid. In such a case there is no general administration of the estate, but only such accounting as will show that the assets are sufi&cient to satisfy the debt ; which is then ordered to be paid in due course of administration.^ This proxieeding by a creditor for the payment of his own debt alone is, how- ever, an unusual proceeding. The more common proceeding is a bill by one creditor in behalf of himself and all other creditors who may choose to come into the proceedings, for an account of the assets and a due settlement of the estate. This suit includes all claims of all creditors who prove their demands in the case ; and if, on taking account of the assets of the estate, there appears to be sufficient to pay the debt of the creditor who files the bill, a decree for such payment is made, and the court having taken jurisdiction of the case for that purpose, follows it out by decreeing the ■payment of all other claims proved against the estate in the suit.3 1 Story, Eq. Jurisp. §§ 533-543. ^ Atty.-Gen. v. Corntliwaite, 2 Cox, 44; Morrioes. Bank of JBngland, Cas. temp. Talb. 217. 8 Wms. Ex'rs, 2007; Whitmore v. Oxborrow, 2 T. & C. 13; Wood- gate V. Field, 2 Hare, 211 ; Story, Eq. Jurisp. § 547. ACTIONS IN EQUITY. 509 But this decree of payment of the various cMms filed in the suit ought not to have a prejudicial effect upon creditors who have not proved their claims in the suit, and who are therefore in no way parties to it, and have not been guilty of any laches; and to obviate this injustice, it has been established as the rule in England that while payments made under this decree exonerate the esecutor or administrator from liability for such payments, yet the other creditors may have suits against those persons who have received such payments, for contribu- tion to pay their claims.^ But in many cases the court orders public notice to be given to all creditors to prove their claims in one suit, and after such notice the claims will be barred.2 § 705. Proceedings in Creditor's Suit. — Until the decree in such a suit by a creditor, every creditor who joins it has what is called an inchoate right in the suit. Yet the creditor who begins the suit is considered to be the dominus litis, and may conduct the suit as he pleases ; and if the executor pays him his debt and costs, the creditor may discontinue the suit, thus leaving the other creditors to pursue their own remedies.* For this reason it is the practice to allow other creditors to institute similar suits while the first suit is still pending, and to pursue all concurrently until a decree in one is reached^ which stays the proceedings in all others in which no further or different relief is sought.* The decree in such a case is, tiiat the executor or administrator account before a master in chancery for the assets and the debts of the estate. This proceeding is begun by the notice which has been previously alluded to,^ by which all creditors are summoned into the proceedings to prove their debts or be barred from proving their claims in any other suit or at any other time.® In this » Wms. Ex'rs, 2008; Story, Eq. Plead. § 106. '^ Supra, § 325. 8 Woodgate v. Field, 2 Hare, 211,, 212. * Ibid., Wms. Ex'rs, 2012. 6 Supra, §§ 325-327. « Story, Eq. Jurisp. § 548. 510 LAW OF EXECUTORS AND ADMINISTRATORS. accounting, each creditor may contest the claims of any other creditor, and the whole question of the debts of the estate is fully gone into.^ Until the decree of account is passed, it is possible, as has been seen above, for other creditors to insti- tute other suits, which will proceed concurrently ; but after the decree of a general account is passed, the executor or administrator may have an order stopping all suits in other courts, except such as are under the direction and control of the court of equity where the decree is passed.^ This order, however, is granted only upon terms of the executor or ad- ministrator bringing the assets into court, or obeying such other order of the court as the circumstances of the case may require.^ In cases where the executor admits assets, or where the creditor brings the bill for the collection of his own debt, and not in behalf of the other creditors as well, the decree is not for a general accounting of the estate as payment of all debts, but for the payment of the creditor's debt only, for the other creditors are not prejudiced in such a case, as the executor by admitting assets renders himself liable to pay the debt. And in case of a bill by the creditor for his single debt, the judgment is only for payment in due course of adminis- tration.* § 706. Administration Suits by Iiegatees or Distributees. — The same process in equity is also applied to enforce the pay- ment of a general or pecuniary legacy or a distributive share. As the right of a general legatee to compel payment of the legacy depends upon the existence of sufficient assets of the estate to allow the executor to pay all debts, it is evident that 1 Owens V. Dickenson, 1 Cr. & Ph. 48, 56. ^ Morrice v. Bank of England, Cas. temp. Talb. 217; Martin v. Mar- tin, 1 Ves. 211, 212; Perry v. Phelps, 10 Ves. 38, 39; Douglas v. Clay, 1 Dick. 393 ; Kenyon v. Worthington, 2 Dick. 668. ' Gilpin V. Lady Southampton, 18 Ves. 469 ; Story, Eq. Jurisp. § 549. * Supra, § 704; Woodgate v. Field, 2 Hare, 211, 212; Story, Eq. Jurisp. §§ 546, 548 a. ACTtONS IN EQUITY. 611 this right can only be properly asserted in equity where the court can take an account of the whole estate, and decide whether it is the duty of the executor to pay the legacy or not. Accord- ingly it is the practice for a legatee in England to file a bill in equity to enforce the payment of his legacy, and he may file this bill in behalf of all other legatees as well as himself. And if the assets are sufficient, the court will make a decree of payment of legacies due to all legatees who have come in and become parties to the suit.^ The same remarks apply to legatees who do not join the suit as were made in regard fco creditors similarly situated ; that is, they are not concluded by the suit except as to the executor, but they may proceed against the creditors or legatees who have received portions of the estate in pursuance of the decree.^ § 707. Equitable Assets. — The proceedings upon a creditor's bill for general administration render a consideration neces- sary of the two subjects of equitable assets and of marshal- ling the assets. Equitable assets are contradistinguished from legal assets, and are of two kinds : those portions of the prop- erty of the deceased which would not by law be liable to be applied to the payment of debts or legacies, but which the deceased has himself made liable ; and those portions of the same property not liable in law for such purposes, but which a court of equity renders so liable from the nature of the es- tate. In regard to the former, the principal species is land which the testator has devised to be sold for the payment of debts. This devise is considered by a court of equity to make the land a part of the fund for such purposes, and it is there- fore called equitable assets of the estate, although at common law such an obligation did not exist upon the land.* As to 1 Mitf. PI. 169, 4th ed. ; Wms. Ex'rs, 2007. 2 Supra, § 704; Wms. Ex'rs, 2007, 2008. * Lewin o. Oakley, 2 Atk. 50; Newton v. Bennet, 1 Bro. Ch. 135; Dixon V. Ramsay, 1 Cr. C. Ct. 496; Story, Eq. Jurisp. § 552; Speed v. Nelson, 8 B. Mon. (Ky.) 499. 612 LAW OP EXBCDTOES AND ADMINISTBATOES. the latter species of equitable assets, any equitable estate which is chargeable with debts is from its nature equitable assets, because it exists and can be treated only by a court of equity .^ In many of the United States the land of the deceased is made liable by statute to the payment, of his debts, and is therefore legal assets of the estate ; and the general subject of assets is frequently regulated by statutes which vary the effect of the common law. For the discussion of the, subject generally, re- ference should be had to the previous chapter upon assets, and to the statutes of the various States. § 708. Marshalling Assets. — In such a suit in equity as has been already referred to, that is, a creditor's bill for an account and administration, and in all other suits where a court of equity takes an account of all assets for distribution, equitable assets ar« included with the others ; but the court; of equity follows the rules of law with regard to all legal assets as to priority of claims of preferred debts,. and also preserves and enforces all liens, claims, and charges in rem, whether legal or equitable, as to all assets legal and equitable ; 2' but in regard to equitable assets, it. follows: the principle which has been largely adoptedlby statute in the United States, of considering all debts as of equal rank, and, to be paid in full or proportionately ac- cording to the amount of assets.? The peculiar methods of equity come into play wlien the assets consist partly of legal assets and partly of equitable assets. In such a case, the court will not take away any legal preferences which credit- ors may have as to legal assets, but it takes account of such preferences in marshalling the debts; and if the creditor has secured a partial payment ofi his debt out of the legal assets by means of such preference, the couri will oblige him to allow 1 2 Fonbl. Eq. Bk. 4, Pt. 2, oh. 2, § 1, note (?) ; Law v. Law, 3 Cr. C. Ct. 324. 2 2 Fonbl. Eq. Bk. 2, Pt. 2, ch. 2, §§ 1, 2; Morrioe v. Bank of Eng- land, Cas. temp. Talb. 220, 221; Moses v. Murgatroyd, 1 Johns. Ch. 119; Averill v. Loucks, 6 Barb. 470. 8 Co. Litt. 24; Cox's Creditors, 3 P. Wms. 343, 344. ACTIONS IN EQUITY. 513 all common creditors to take out of the equitable assets enough to give them the same proportion of their debt that the pre- ferred creditor has taken out of the. legal assets.^ § 709. Marshalling Assets. — The jdirase " marshalling th& assets " in equity means the arranging of the different funds imder the administration so as to enable all the parties having claims thereon to receive their due proportions,, notwithstand- ing any intervening interests, liens, or other claims of par- ticular persons to prior satisfaction out of a poi'tion of these funds. Thus, where there exist two or more funds and there are several claimants against them, and at law one of the par- ties may resort to either fund for satisfaction, but the othera can come upon one only, then courts of equity exercise the authority to marshal the funds, and by this means enable the parties whose remedy at. law is confined to one fund only to receive due satisfaction.?^ This principle arises from the fact that the party who might resort to both funds has it in his power to balk the other ereditorj iu cases where the fund ta which both creditors may resort is not large, enough to satisfy both claims.^ The principle is stated to be that " a person having resort to two funds shall not by his choice disappoint another having one only."* The application of this principle must of course vary with the circumstances of each case. Thus, if a creditor by a spe- cialty, having a lien thereby on the real estate, receives satis- faction of his debt out of the personal assets, equity will aillow a simple contract creditor to be: subrogated to the place 1 Sheppard v. Kent, 2 Vem. 435; Haslewood v. Pope, 3 P. Wms. 323; Wilder v. Keeler, 3 Paige (N. Y.)., 167. 2 1 Madd. Ch. Pr. 499; Earn on Assets, ch. 28, § 1, p. 329; Aldrioh v. Cooper, 8 Ves. 388,. 398 ; Lanoy v.. Duke of Athol, 2 Atk. 446 ; Atty.-Gen. V. Tyndall, Ambl. 614 ; Cheeaebrough v. Millard, 1 Johns. Ch. 409 ; KaniT sey's App., 2 Watts, 228; Briggs «. Planters' Bank, 1 Freem. Ch, 574. 8 Story, Eq. Jurisp. § 558. * Trimmer w. Baynsy 9 Yea, 209, 211; Webb v. Smith, L. K., 30 Ch. Div. 190. 514 LAW OP EXECUTORS AND ADMINISTRATORS. of the specialty creditor against the real estate, to the extent to which the specialty creditor has withdrawn personal assets in satisfaction of his debt.^ But if the specialty creditor, hav- ing the right to resort to two funds, has not yet taken satis- faction out of either, a court of equity will compel the specialty creditor either to take his satisfaction out of the fund which other creditors cannot resort to, or will allow him to take his satisfaction out of the common fund and subrogate common creditors to his rights against the special fund, so far as he has withdrawn assets from the common fund.^ So if a mort- gagee secures the payment of his mortgage out of the personal estate, the common creditors will in equity take his place as to the land mortgaged by right of subrogation,^ or the common creditors may compel the heir to reimburse the personal estate the amount which has been taken from it by the mortgagee in satisfaction of his debt.* If the deceased had purchased land and had not paid therefor at the time of his death, the vendor has a lien on the land, and also a claim against the personal estate, under the contract of sale ; he is entitled to obtain the payment of the price out of either fund at law ; but if he pro- ceeds against the personal estate and thus prevents the com- mon creditors from getting their claims paid in full, a court of equity will substitute them in his place in regard to the real estate, giving them the benefit of his lien to the same extent as he has withdrawn personal assets from the estate to satisfy his debt.^ § 710. Marshalliug bet-ween Legatees and Heirs or Devisees. — These principles also apply in courts of equity to the lega- 1 Anon. 2 Ch. Cas. 4; Sagittary v. Hyde, 1 Vern. 455; Story, Eq. Jurisp. § 562. =i Sagittary v. Hyde, 1 Vern. 455; PoUexfen v. Moore, 3 Atk. 272 j Aldrich v. Cooper, 8 Ves. 389, 394; Story, Eq. Jurisp. § 563. » Aldrich v. Cooper, 8 Ves. 388, 395, 396. * Wilson V. Fielding, 2 Vern. 763. 6 Selby V. Selby, 4 Kuss. 336, 340, 341; Lamport v. Beeman, 34 Barb. 239. ACTIONS IN EQUITY. 515 tees under the will of the deceased as against the heirs to whom the real estate would descend ; for if a specialty creditor or mortgagee who might have taken his debt out of the land proceeds against the personal estate, and thus withdraws the fund from which the legatees would have been paid their lega- cies, it is obviously in accordance with the wishes of the testa- tor that the legatees, who are specific objects of his bounty, should be allowed to take their legacies out of the real estate to the extent to which personal assets have been withdrawn from the estate, for the heirs are not equitably entitled to the land until all the legacies and devises of the testator have been satisfied as well as his creditors ; ^ but as against a devisee the legatees do not have the same rights, since the devisees and legatees are equally objects of the bounty of the testator, and one has no greater equity than the other, unless indeed some qualification of the legacy or devise indicates an intention of the testator to give one or the other a preference ; as, for in- stance, if he devises land subject to a mortgage, this will give the legatees the right to claim their legacy out of the land if the mortgage debt is paid out of the personal estate, because the devisee ought to have borne the burden of the mortgage, and if by the action of the mortgagee the burden is transferred to the personal estate, to that extent the legatees may claim out of the real estate in equity in order to carry oul the wishes of the testator.2 The same principle gives legatees a similar right of substitu- tion when lands are subjected by the will to the payment of debts. In such a case legatees are entitled to claim their legacies out of the lands if the personal assets are taken by creditors ; ^ but when the testator subjects his lands to the pay- 1 Heme v. Myrict, 1 P. Wms. 201, 202; Culpepper v. Aston, 2 Ch. Cas. 117; Lutkina v. Leigh, Cas. temp. Talb. 53. 2 Clifton V. Burt, 1 P. Wms. 679, 680; Haslewood v. Pope, 3 P. Wms. 322, 324; Lutkins v. Leigh, Cas. temp. Talb. 53, 54; Forrester v. Leigh, Ambl. 171 ; Norris v. Norris, 2 Dick. 542. 8 Clifton V. Burt, 1 P. Wms. 678, 679, and Cox's note. 516 LAW OP EXECUTORS AND ADMINISTRATORS. ment of his debts and the lands are devised, it would seem that the equity of the devisees was as good as that of the legatees, and that if creditors resort to the personal estate there is no reason why the real estate should be subjected to the legacies, unless the testator has indicated that the lands are to bear the debts, to the exoneration of the personal estate.^ § 711. Personal Xlstate the Primary Fund for paying Debts. — The mode of marshalling assets for the payment of debts depends upon the rule of the common law making the per- sonal estate the primary fund for the payment of debts, and only exonerating it when the real estate is made solely sub- ject to debts, or when the will shows that it is the intention of the testator that the personal property should be exoner- ated.2 When the personal estate is insufficient for the pay- ment of debts, the assets are marshalled in the following order : — First. General personal estate, unless expressly or by im- plication exonerated. Second. Lands expressly devised to pay debts. Third. Estates which descend to the heir. Fourth, Real or personal property devised or bequeathed charged with debts. Fifth. General pecuniary legacies pro rata. Sixth. Specific legacies and real estate devised, whether in terms specific or residuary, are liable to contribute pro rata. Seventh. Real and personal property which the testator has power to appoint, and which he has appointed by his will or by voluntary deed. Eighth. Widow's paraphernalia.^ 1 Clifton V. Burt, 1 P. Wms. 678, 679, and Cox's note; Haslewood v. Pope, 3 P. Wms. 323. 2 Trott V. Buchanan, L. R. 28 Ch. Div. 446; French v. Chichester, 2 Vern. 568; 3 Bro. P. C. 16; Wms. Ex'rs, 1205; Story, Eq. Jurisp. § 571 ; Whitehead v. Gibbons, 10 N. J. Eq. 230 ; McKay v. Green, 3 Johns. Ch. 56. » Hays V. Jackson, 6 Mass. 149; Lee, Ex parte, 18 Pick. 288; Towle v. ACTIONS IN EQUITY. 517 This beiag the order in which the assets of the estate are liable for the debts of the deceased, the principles of equity are applied in approximating the actual taking of the assets in satisfaction of debts to this order, as nearly as may be, or to such other order as the will of the testator may have directed, either expressly or by implication. Thus, if the personal estate is not suflBcient for all the purposes exhib- ited by the will, equity will direct that it shall be used to satisfy creditors in preference to legatees, specific legatees in preference to the heir or devisee of the real estate charged with specialties or with the payment of debts.^ Specific legacies are applicable to the payment of specialty debts in priority to real estate devised.^ The devisee of mortgaged premises is able to call upon tlie heir-at4aw to pay debts out of the land in preference to coming upon the mortgaged premises ;^ and a fortiori, the devisee of unincumbered prem- ises can call upon the heir to pay debts. * § 712. Subrogation when Personal Estate is sufficient to pay Debts. — The foregoing are the rules and instances applicable 'where the personal estate is insufficient to pay all debts and legacies. If, however, the personal estate is sufficient to pay debts and legacies, then the heir-at-law or devisee who is compelled to pay a debt due by the deceased, or to satisfy any incumbrance, out of the land which has come to him by descent or devise, may have the debt paid out of the personal estate, in preference to the residuary legatees or distributees, Swasey, 106 Mass. 100, 104 ; McLean v. Robertson, 126 Mass. 537 ; Tom- tins V. Colthurst, L. R. 1 Ch. Div. 626; Farquharson v. Floyer, L. R. 3 Ch. Div. 109; 2 Jarman, Wills, 4th ed. 622; Theobald, Wills, 3ded. 570; Har- wood V. Oglander, 8 Ves. 106, 124; Livingston ». Newkirk, 3 Johns. Ch. 319; Story, Eq. jurisp. § 577; Alexander v. Worthington, 5 Md. 471; Whitehead v. Gibbons, 10 N. J. Eq. 230; Dunbar ». Dunbar, 3 Vt. 472. 1 2 Fonbl. Eq. Bk. 3, ch. 2, §§ 3, 4, 5, and notes (e) (/) {q) (k). 2 Cornwall v. Cornwall, 12 Sim. & Stu. 298. ' « Toller, Ex'rs, Bk. 3, ch. 8, p. 418; Howell v. Price, 1 P. Wms. 294. * Chaplin v. Chaplin, 3 P. Wms. 304; Livingston v. Newkirk, 3 Johns. Ch. 319; Story, Eq. Jurisp. § 571. 518 LAW OP EXECUTORS AND ADMINISTRATORS. because the debt was primarily a charge on the personal estate, and was inequitably taken out of the real estate. Thus, if the heir or devisee pay a specialty debt or mortgage, he is entitled to have the amount repaid to him out of the personal assets, unless the testator has exempted the per- sonal assets by express words or by clear implication.^ This right of the heir, however, arises only in case the debt is primarily charged upon the personal property, as in most cases it is. If, however, the debt is one which is chargeable principally and primarily upon the land, and is not one where the land is a mere security, then the rule is re- versed in equity, and the personal estate is held to be liable only as security, if at all ; and if the debt or charge is paid out of it, the real estate may be charged to make up the amount. Thus, if a jointure is to be raised out of land by the execution of a power, and there is a collateral personal covenant to raise the jointure, the jointure is considered a primary charge upon the land, and the personal covenant is collateral ; and therefore the land will exonerate the personal estate.^ So, when a mortgage is created by an ancestor, and the mortgaged estate descends upon the heir, who becomes personally bound to pay the mortgage by covenant. There the liability of the heir is primarily a liability as regards the land only. If, therefore, he dies, his land would be charged with the mortgage ; and the owner of the land could not charge the personal estate on any liability under this cove- nant, for that liability is collateral only, and not primary .^ § 713. Parties to Creditor's Bill. — When such a bill as is above referred to has been brought by a creditor against the executor or administrator of the estate, there is no neces- sity of making any legatee or next of kin parties, for it is 1 2 Fonbl. Eq. Bk. 3, ch. 2, § 1, note (a). " Coventry v. Coventry, 9 Mod. 13. » Cope V. Cope, 2 Salk. 449 ; Evelyn v. Evelyn, 2 P. Wms. 664, Cox's note (1) ; Andrews v. Bishop, 5 Allen, 490. ACTIONS IN EQUITY. 519 presumed that the executor or administrator will take care that the demands against the estate are legal ones, since it is his duty so to do ; but if any special circumstances make it proper that one or more of such persons be made parties, they may be joined as defendants.^ Nor can debtors of the estate, or persons holding property belonging to the estate, be made parties to such a suit generally, since the executor or administrator is the only person who has the right to collect the estate or to compel the payment of debts due to it ; but if he has colluded with the debtor, and so refuses to collect the debt, or if he has released the debt and is insolvent, or in other cases where some obstacle exists to the executor or administrator enforcing the payment of the debt, the suit in equity may include the debtor also.^ The rule has been said to be relaxed in cases of partnership ; and the surviving partner has been joined with the executor or administrator in order to secure an account of the whole estate, without any charge of collusion.3 But it is rather to be said that the real prin- ciple is, that where the relation between the executors and the surviving partners is such as to present a substantial im- pediment to the prosecution by the executors or administra- tors of the rights of those who are interested in the estate, then the surviving partners may be joined with the executor or administrator as parties.* § 714. Equitable Defences. — The defences in equitable suits are mainly of a similar nature to those which exist to suits at law, which have been already considered, and to which refer- ence is made to avoid repetition.^ The subject of costs will be considered later. 1 Brown v. Dowthwaite, 1 Madd. 446 ; Lord Hertford v. Zichi, 9 Beav. 11. 2 Newland v. Champion, 1 Ves. 105 ; Utterson v. Mair, 2 Ves. Jr. 95 ; Doran v. Simpson, 4 Ves. 651 ; Cummings v. Cummings, 143 Mass. 340. 8 Bowsher v. Watkins, 1 Russ. & My. 277. * Travis v. Milne, 9 Hare, 141, 150 ; Stainton o. Carron Co., 18 Beav. 146. 6 Supra, § 685 et seq. 520 LAW OP EXECUTOES AND ADmNISTEATOES. § 715. Limited Equitable Juiisdiction in some States. — The foregoing remarks about the jurisdiction in equity have been applicable to those jurisdictions where the subject remains as in England at common law. In many of the United States this is the fact, and administration suits in equity may be brought by creditors or legatees or distributees-^ In other States, however, a change is made, and the position is taken that all jurisdiction as to accounting by an executor or ad- ministrator is vested exclusively in the court of probate, which is given full powers and processes to compel an account and to ensure the fulness and accuracy thereof ; and that a legacy or distributive share may be recovered in an action at law or by an action upon the probate bond, and therefore, between the probate court and the common-law actions for the legacy or distributive share, there is no necessity for any equitable jurisdiction. Thus, in one case a bill in equity was brought by one entitled to a distributive share of an estate to compel the administrator, who had settled his accounts in the pro- bate court, to inventory and account for certain bonds be- longing to the estate, which he had failed to include in his inventory filed in the probate court, or in his accounts. The complainant had assented to the administrator's accounts, and had received a share of the estate, but with the express understanding that the assent and receipt should not preju- dice her rights to the bonds. The bill prayed that the de- fendant be ordered to account for these bonds as a part of the estate of the deceased, or, as an alternative, that the defend- ant be ordered to pay the plaintiff the sum found due as her share of the bonds. The court held that the bill was an attempt to transfer the settlement of the accounts of the de- fendant to the court of equity from the probate court, which had ample jurisdiction to redress the matters complained of I Simmons v. Tongue, 3 Bland (Md.), Ch. 341; High ». Worley, 32 Ala. 709; Walker v. Morris, 14 Ga. 323; Van Syckle v. Kichardson, 13 111. 171; Freeland v. Dazey, 25 111. 294. ACTIONS IN EQUITY. 521 as to the accounting, and that the bill rested upon an alleged failure of the defendant to perform his duties as administra- tor, and that the court of equity was not the proper tribunal for that inquiry .1 And the rule in that jurisdiction is laid down to be that there is no remedy in equity as long as there is a plain, adequate, and complete remedy at law,^ — which practically amounts to all ordinary cases under the decisions, since these courts hold that tlie remedy on the probate bond or by removal of executor or administrator on his failure to account, is a plain, adequate, and complete remedy for the enforcement of rights against an executor. It seems, however, as if there were many advantages in a general administration suit, by which the rights of all parties can not only be ascertained but enforced by the court in a single case with the parties all before it. And in a State where the remedies upon the bond are full, and the processes for accounting in the probate court are satisfactory, it was held that in a proper case the court of equity, having all the parties and the fund before it, on a bill to ascertain the con- struction of a will and the operation of the statutes of descent, would proceed to the final distribution of the estate, and that payment made by the executor under its decree would ex- onerate him from further liability,^ Even in Massachusetts, where the jurisdiction in equity has been strongly opposed, it has been upheld in a recent case to a limited degree. In that case, a bill was brought by one who claimed as equitable assignee of one who was entitled to legacies and distributive shares in three estates. The assign- ment was made to the plaintiff as security for a debt. The bill prayed that the assignment might be declared valid ; that certain other similar assignments, subsequent in date, might be declared invalid as against the plaintiff ; that an account 1 Foster v. Foster, 134 Mass. 120. 2 Morgan v. Rotch, 97 Mass. 396; Wilson ». Leishman, 12 Met. 316. 3 Daboll ». Field, 9 R. L 266, 285, .286. 522 LAW OP EXECUTORS AND ADMINISTBAT0R8. of the sums due to the assignor from the several estates be taken; that the various administrators and executors be enjoined from paying over the amounts so due to any of the legatees or distributees or persons otherwise entitled to them, and be ordered to pay them to the plaintiff ; and for further relief. The court held that, as far as accounts in the various estates were concerned, the bill did not ask for the removal of the accounting from the probate court, which could not be done, but that the principal object of the bill was to obtain a construction and declaration of the validity of the assignment ; and that as the probate court did not take cognizance of assignments by legatees or distributees of their interests in estates, but dealt only with those immedi- ately entitled, the bill might be maintained for the object stated above ; and that the plaintiff was entitled to the in- junction restraining the executors and administrators from paying over the amounts to which the plaintiff might be equi- tably entitled to any other person ; and that the bill should be retained until the probate courts had by decree settled the amounts due to the assignor in the various estates, and then an order should be made in the suit in equity, compelling the executors and administrators to pay over to the complainant the amount due to her to satisfy her claim.^ This case and the others above cited show that in Massa- chusetts the whole subject of accounting is left to the pro- bate court exclusively, and that until a final decree the administrator is to proceed wholly in that court ; but that after a decree is rendered, settling the amount due to lega- tees and distributees, the court of equity will take juris- diction to enforce the proper payment of the legacies or distributive shares in cases where proceedings at law or on the probate bond would not afford a plain, adequate, and complete remedy, — one of such cases arising when an equi- table assignment has been made. These remarks should be 1 Lenz V. Prescott, 144 Mass. 505. ACTIONS IN EQUITY. 623 understood as not excluding the remedies of legatees for their legacies at law, or proceedings by creditors for their debt in due course of administration ; but it may be said that the general rule in States where the probate court has full powers to settle estates is, that creditors' bills and administration suits, such as exist in England and other states where the probate court has a less complete jurisdiction, are not recognized.^ § 716. Nature of Jurisdiction in Probate Court. — The nature of the relief afforded in the probate courts has already been incidentally discussed in various places, especially in regard to the removal of executors or administrators for maladminis- tration, the various modes of enforcing an accounting of the estate, and the ascertainment of the distributive shares. The jurisdiction of the probate courts in the United States is much varied by statutes ; but one feature is noticeable, — that there is no inherent power in the court to compel an executor or administrator to pay a debt or legacy or distributive share.^ The probate court can indirectly enforce the proper distribution of the estate by removing the executor or administrator from office if he fails to administer properly, or by allowing suit on the bond for the damage resulting from the ^non-payment of legacies or distributive shares, as will be seen later ; but it has no power to enforce its orders or decrees by proceedings such as belong to the courts of equity, unless such powers are expressly given by statute. For example, in Massachusetts, in case an executor who is removed or resigns refuses to de- liver the property belonging to the estate to the administrator upon order by the probate court, he may be punished as for a contempt, in the same way as by a court of equity .^ 1 Jennison v. Hapgood, 7 Pick. 1 ; Sever v. Kussell, 4 Cush. 513; Grin- nell V. Baxter, 17 Pick. 383; Wilson v. Leishman, 12 Met. 316; Morgan v. Koteh, 97 Mass. 396. 3 Hancock v. Hubbard, 19 Pick. 172, 173. 8 Mass. Pub. Sts. ch. 156, §§ 14, 15, 31. 524 LAW OP EXECUTORS AND ADMINISTRATOKS. CHAPTER XXVI. LIABILITY OF EXECUTORS OR ADMINISTRATORS UPON EXECUTION, § 717. Liability of Estate of Deceased | 720. Liability of Executor or Admin- on Execution. istrator as Trustee. 718. Liability of Estate on Attaob- 721. Massachusetts Statute as to this ment. Liability. 719. Liability of Estate to Foreign 722. Nature of this Liability. Attachment. 723. Proceedings in Execution against , Trustee. § 717. Liability of Goods of Deceased on Zizecution against Deceased. — Reference has already been made to the liability of the goods of the deceased to execution at common law, according to the English practice.^ By that practice the ex- ecution may be levied after the death of the defendant, if issued in his life, although the more regular practice even in that country is to revive the judgment against the executors or administrators by a writ of scire facias against them, to show cause why the execution should not be satisfied out of the goods which were of the testator or intestate at the time of his death, and are in the hands of the executor or adminis- trator to be administered.^ In Massachusetts, if the defend- ant dies after judgment and before execution is issued, execution cannot be issued;^ and if execution is issued be- fore the death of the defendant, it cannot be levied after his death.* But if an attachment of the goods has been made, the execution may be levied at any time within thirty days 1 Supra, § 699. 2 1 Chitty's Archb. 569; 1 Saund. 219/; Tidd, Practice, 1119, 9th ed.; Wms. Ex'rs, 1991, 1992. 8 Hildreth v. Thompson, 16 Mass. 192. * Jewett V. Smith, 12 Mass. 309. ATTACHMENT AND TEUSTEE PROCESS. 525 of the judgment, if the execution was issued in the lifetime of the defendant, — unless the attachment has been dissolved by taking administration,^ The practice of issuing a scire facias against the executors or administrators, when the de- fendant dies after judgment, as it obtains in England, does not seem to have been adopted in Massachusetts ; and from the language of the court in one case it seems that it could not be used.^ If the defendant dies before judgment, and the executor or administrator does not appear, or appears and de- fends the suit, the judgment and execution, if not against the executor or administrator personally, are against the goods of the testator in the hands of the executor or administrator, as has been seen.^ Such an execution may be levied on any goods of the deceased, so long as the property in them is in the administrator or ex- ecutor. But this liability may be ended by a change in the ownership of the goods, by which they become the goods of some one else ; as by a sale by the executor or administrator. But merely charging, himself with the goods in his inventory and account does not transfer the property in them to him in his own right, so as to bar the liability of the goods as goods of the estate.* Whether a payment of debts due by the estate, to the value of the goods, by the executor out of his own funds, would transfer to him. the absolute property in the goods charged in the aecount, so as to free them from liability on execution, or not, is queried in one case, but not decided.^ This liability to execution may be ended also by a represen- tation of insolvency duly made by the executor or adminis- trator before the judgment in the suit ; but if the suit is al- lowed to go to judgment, it is afterwards too late to object.^ 1 Grosvenor v. Gold, 9 Mass. 209. See infra, § 718. 2 Jewett V. Smith, 12 Mass. 309. 8 Mass. Pub. Sts. c. 166, § 5. < Weeks v. Gibbs, 9 Mass. 74. * Weeks v. Gibbs, supra. « Newcomb v. Goss, 1 Met. 333; Clark v. May, 11 Mass. 233. 526 LAW OP EXECUTORS AND ADMINISTRATORS. § 718. Liability of Goods of- the Deceased to Attachment. — An attachment put upon the goods of a person during his life is not dissolved by his death, unless administration is applied for within a year. Therefore goods held under attachment may be taken on execution within the proper time, unless the attachment has been so dissolved.^ After the dissolution of the attachment by the death of the owner of the property and the grant of administration, the property belongs to the ex- ecutor or administrator, free from the lien of attachment ; and the statute provides that the property shall be turned over to the executor or administrator. This, however, means that the property shall be so turned over by the officer only when no change of ownership in the property has occurred since the attachment and before the death of the owner ; for if the owner has made a valid conveyance, subject to the attachment, the property belongs to the person to whom the conveyance is made, and should be turned over to him when the lien has been so dissolved.^ As to attachments in suits against the executors or administrators, the goods and estate of the deceased in their hands may be so attached, as has been seen.^ § 719. Liability to Foreign Attachment or Trustee Process. — The liability of an executor or administrator under trustee process or foreign attachment is largely a matter of statute, and for the details of the proceedings by which such liability is enforced reference must be had to the statutes of the vari- ous States. At common law, or rather by the custom of the city of London, a plaintiff, creditor of the deceased, might attach goods or money of the deceased in the hands of another in the city, in a suit against the executor or adminis- 1 Grosvenor v. Gold, 9 Mass. 209, 213; Jewett v. Smith, 12 Mass. 308; Mass. Pub. Sts. c. 161, § 56. = Coverdale v. Aldrich, 19 Pick. 391. 8 Mass. Pub. Sts. c. 161, § 38; c. 166, § 5; Horsam v. Target, 1 Ventr. 113. ATTACHMENT AND TRUSTEE PEOCESS. 627 trator, on a demand against the deceased,^ but not on any demand except one against the deceased.^ It was also the law on tliis custom tliat no debt due to the estate, or goods belonging to it, could be held by foreign attachment unless the debt was due to the deceased, or unless the goods be- longed to him. Thus if an executor or administrator took a bond for a debt due to the deceased, the money payable on the bond could not be attached ; ^ nor if money was awarded to an executor or administrator on a submission by him of a controversy between the deceased and another person.* A debt due to the deceased, or goods belonging to him in the hands of a stranger, could not be attached by trustee pro- cess in a suit begun after his death, by a creditor of the estate, against his executors or administrators, since the collection of the debts of the estate and of the goods belonging to it is en- tirely in the power of the executor or administrator, unless a statute exists giving such power of attachment, or the custom of the city of London has been adopted by decision of the courts.^ If, however, the executor or administrator has entered into any contract in regard to the estate by which money is due to him, although the money may belong to the estate and would be assets when it is received, yet the debt may be attached by trustee process in a suit against the executor or administrator personally, on a demand due by him personally and having nothing to do with the estate. Thus where the executrix took from one who was indebted to the testator a promissory note in the following form : " For value received I promise to pay Catherine Ansart, executrix of the last will and testament of Lewis Ansart, Esq., deceased, one hundred and eighty-seven dollars and seventy-six cents, in ninety days from the above 1 Masters v. Lewis, 1 Ld. Raym. 57; Fisher v. Lane, 3 Wils. 297. 2 Com. Dig. Attachment, D. 8 Horsam v. Target, 1 Ventr. 113. * lb., 112. 6 See Brooks ». Cook, 8 Mass. 246; Lyons v. Houston, 2 Harr. Del. 349. 528 LAW OP EXECUTORS AND ADMINISTEATOBS. date. Signed, Moses B. Coburn," and the executrix gave the note to her attorney for collection, and he collected the amount with interest, and a, personal creditor of the executrix then sued her on a demand against her personally, and trus- teed the attorney for the sum so collected by him, it was held that the attorney owed the money to Mrs. Ansart, although it would be assets of the estate wlien she received it, and she would be obliged to account for it ; and the trustee was held.^ § 720. Liability of Ezecutors or Administrators as Trustees for Debts, Legacies, and Distributive Shares. — As to the lia- bility of executors or administrators themselves as trustees, in the absence of statutory provisions on this subject, in the process of foreign attachment, for debts owed by the estate or for legacies or distributive shares, it has been held that at common law an administrator is not held by such attach- ment of a debt due by the estate, in an action by a third person, against a creditor of the estate, because the adminis- trator is a quasi public officer, deriving his authority from law and obliged to execute it according to law.'* The same decision would probably be made, in default of statutory au- thority, in regard to an attempt to hold an executor for a debt due by the estate, in a suit by a third person against a creditor of the estate. The reason of such a decision ia more probably the inconsistency of such a proceeding with the whole scheme of administration as to collecting debts of the estate and paying the liabilities thereof, rather than the public or official character of the executor or administrator. As to legacies and distributive shares of estates, it was held at common law that a general legacy could not be so attached in a suit against the legatee-, because the rights of creditors could not be determined in such a proceeding, and without such determination it was uncertain whether the legacy would be payable.** And in an early case in Massachusetts, the same 1 Coburn v. Ansart, 3 Mass. 319. " Brooks o. Cook,. 8 Mass. 246. 8 Wood V. Smith, Noy. 115. ATTACHMENT AND TRUSTEE PROCESS. 529 decision was reached under a statute allowing " goods, effects, and credits of the defendant intrusted to or deposited with " a stranger, to be so attached, the court holding that a legacy could not be called goods or effects, nor in any proper sense a credit, since that word involves the relation of debtor and creditor, even though in that State payment of the legacy could be enforced by suit at law against the executor.^ Similar reasons would prevent an administrator from being liable to trustee process in regard to a distributive share; and it is generally held that an executor or administrator is not liable as such to trustee process in regard to a debt, legacy, or distributive share unless a statute expressly creates that liability.^ § 721. MassachuBettB Statute as to Trustee Process. — By statute in Massachusetts, which has been adopted in substance in many States, debts, legacies, goods, effects, or credits, due from or in the hands of an executor or administrator as such, may be attached in his hands by trustee process.^ Under this statute it is held that a distributive share of the estate may be attached by trustee process before a decree of distri- bution has been passed by the probate court. The court says, " It is objected on the part of the trustee that he cannot be adjudged such, because the credits and effects of the de- ceased in his hands are not absolute, but contingent and un- certain. No difficulty can arise from any uncertainty as to the person to whom the distributive share is to be assigned in the decree of distribution, that subject having been recently con- sidered in the case of Hayward v. Hayward,* where it was held that the distributive share vests immediately on the death of the intestate in the person then heir-at-law. The » Barnes v. Treat, 7 Mass. 271. 2 Thorn v. Woodruff, 5 Ark. 55; Winchell v. Allen, 1 Conn. 385; Lyons v. Houston, 2 Harr. (Del.) 349; Curling v. Hyde, 10 Mo. 374; Welch V. Gurley, 2 Hayw. (N. C.) 334. 8 Mass. Pub. Sts. c. 183, § 22. * 20 Pick. 517. S4 530 LAW OF EXECUTOBS AKD ADMINISTRATORS. objection, if any, arises from the entire uncertainty of the amount of assets until after a settlement of the account of administration and a decree of the judge of probate appor- tioning the estate among the heirs-at-law ; " and the court decides that this uncertainty may be obviated by continuing the case until the estate has been settled and a decree of distribution had, and that the lien of attachment begins at the time of service of this writ, and lasts till after the decree of distribution.^ The interest in a legacy which is liable to attachment by trustee process must be a vested interest, and not an uncertain or contingent one. If the interest is not vested, there can be no attachment.^ A decision illustrative of this point was reached in the case of Carson v. Carson,^ in which the fact was that the legacy was of the income of the estate to the widow for her life, and no disposition was made of the remainder after her death, and the court refused to hold the executor in trustee process against one of the heirs-at-law. If there are not sufficient assets in the personal estate to pay the legacy so attached, the court will continue the case in order to allow the executor to obtain license to sell real es- tate to pay the legacy, subject of course to the payment of the debts of the estate.* The statute relating to trustee process does not apply to a specific legacy of goods of the deceased which are not in the possession of the executor at the time of the attachment. Thus when the legacy was of an undivided fractional interest in a vessel, which was not and never had been in the possession of the executor, it was held that as the legatee wa-s entitled only to that specifiiC thing, and that specific thing was not in the possession of the executor, the executor could not be held liable as trustee.^ The result would be different in regard to 1 Wheeler v. Bowen, 20 Pick. 56.4. "Rich V. Waters, 22 Pick. 563. » 6 AUen, 397. < Cady V. Comey, 10 Met. 459. B Nickersou v. Chase, 122 Mass. 296. ATTACHMENT AND TRUSTEE PROCESS. 631 a general pecuniary or residuary legacy, because the interest of the legatee would be in whatever of the property was not used to pay debts, and therefore he has an interest in the goods of the estate in the hands of the executor, although the amount may not be ascertained until the estate is settled ; for which purpose the court will continue the trustee process to await the result of the administration proceedings. As to the liability of an executor as trustee of a devisee or lieirat-law as to land, there is no liability ordinarily, because the title to the land vests in the devisee or heir-at-law. It is, however, subject to be taken and sold by the executor for the payment of debts, and if it is sold, and a surplus remains, this surplus might be attached, but only by serving the writ after the proceeds have come into the hands of the executor. Before that time he has nothing which belongs to the devisee or heir, but after that time he has property which may turn out to belong to the heir or devisee if it is more than suffi- cient to pay the debts. It seems therefore that a trustee writ served at any time after such proceeds of the sale have come into the hands of the executor, and before he has paid the surplus, if any, over to the heir or devisee, would hold him as trustee.^ § 722. Nature of the Liability. — An executor or adminis- trator does not begin to be liable to trustee process under such a statute until after he has fully qualified for office, which is generally after he has been appointed by the court and given bond.2 If there are several successive attachments of the debt, legacy, or distributive share, the executor or administra- tor must satisfy them in the order of priority, to the extent that the debt, legacy, or distributive share suffices.^ Such an at- tachment is good only to the amount which becomes payable by the estate, that is, if the estate is insolvent, to the amount of 1 Capen v. Duggan, 136 Mass. 501. 2 Davis V. Davis, 2 Cash. 114. See Capen v. Duggan, supra. » Boston Bank v. Minot, 3 Met. 598. 532 LAW OP EXECUTORS AND ADMINISTRATORS. the dividend declared;^ but in a suit against a legatee it covers tlie proceeds of real estate sold to pay debts or legacies, as well as the personal assets.^ When an executor or administrator is thus trusteed, he may set off against the debt, legacy, or distributive share any debt due by the creditor, legatee, or distributee to the estate ; and if this equals the amount of the debt, legacy, or distribu- tive share, the executor will be discharged.^ A case arising on peculiar facts was that of Green v. Nelson,* in which a legacy was given to A., and the residue to B., on condition of his paying the debts and legacies of the estate. B. was also appointed executor. He declined to act as executor, but ac- cepted the residuary legacy on the condition on which it was given. Suit was brought against A., by a personal creditor of his, and B. was trusteed as owing the legacy to A, not as ex- ecutor, but on account of having accepted the residuary legacy on such condition. B. defended on the ground that A. was indebted to the testator to a sum equal to the legacy to him, and that these debts might be set off against the legacy by B. The court agreed to this, holding that the trustee was entitled to every legal and every equitable set-off in his own right, or in the riglit of those with whom he is privy .^ This right of set-off in case of a legatee is subject to this qualification, that if the legatee whose legacy is attached in the hands of the executor, owes the estate, the executor cannot retain enough of the legacy to pay these debts, if the legacy operates as a discharge of the debt. The legacy itself is not presumed to be in satisfaction of the debt, but there must be circumstances or expressions in the will which show that the testator in- tended to discharge the debt and to have the legacy operate in that way.® 1 Boston Bank v. Minot, supra. * Cady v. Comey, 10 Met. 461. » Nickerson v. Chase, 122 Mass. 297. * 12 Met. 567. 6 Hathaway v. Russell, 16 Mass. 473; Allen v. Hal), 5 Met. 266. « Smith V. Chandler, 1 Gray, 526. See supra, §§ 480, 481. ATTACHMENT AND TRUSTEE PROCESS. 533 In those States where the rights of husband and wife remain as at common law, the husband's right to the wife's credit, leg- acy, or distributive share, before he has reduced it to posses- sion, may be attached by trustee process.^ If the husband dies before having reduced the chose in action to possession, the right dies with him, and the credit, legacy, or distributive share, survives to the wife, even if it has been attached by trus- tee process during the life of the husband ; for the attach- ment creates a lien only on the share, and does not devest the wife's right of survivorship in event of the death of the hus- band.^ ]^ut under the modern statutes as to the power of married women to hold property in their own right, the hus- band has no right to his wife's share which can be attached.^ If the executor wrongfully pays the legacy under attach- ment to the legatee, before he has ascertained whether there are assets enough to pay debts, he makes himself liable personally to pay the legacy, and there is no necessity of continuing the case to ascertain whether the legacy will ulti- mately be payable, or whether the debts of the estate will exceed the assets.* The executor is not liable if the principal debtor is not the legatee, but the heir-at-law of the legatee ; for the legacy is not due to such heir-at-law, but administra- tion must be had. And in such case the executor must pay the legacy to the administrator of the legatee, and is not held by the attachment in a suit against the heir of the legatee.^ If the administrator has before attachment paid over to the distributee money belonging to the estate which equals the amount of his share of the estate, the distributee has no claim on the estate, and the attachment holds nothing.* A question arose in a case in Massachusetts whether the 1 Wheeler v. Bowen, 20 Pick. 563. See supra, § 498. 2 Strong V. Smith, 1 Met. 470. * See Chick v. Agnew, 111 Mass. 26d. * Hoar V. Marshall, 2 Gray, 253. 6 Stills V. Harmon, 7 Cush. 406. 6 Henshaw v. Whitney, 11 Gray, 223. 634 LAW OP EXECUTOES AND ADMINISTEATORS. statute which provides that the attachment shall he dissolved by the death of the defendant and the grant of administration was affected by the statute which provides that an attachment may be continued after the defendant goes into insolvency, if such continuance is for the benefit of creditors. In that case there were four mortgages, the last of which was alleged by the assignees to be in fraud of creditors. .The attachment was made prior to the recording of the fourth mortgage, and was ordered to be continued in force for the benefit of credi- tors generally. The debtor then died, and the assignees con- tended that the order superseded the statute relating to the dissolution of attachments by the death of the defendant ; but the court held that the order related only to the provision of the statute in relation to insolvency, by which the attachment is ordinarily dissolved by the issuing of the warrant in in- solvency.^ The statutory process of equitable attachment, by which, in some States, property of the debtor which cannot be come at to be attached or taken on execution at law may be reached by bill in equity, does not apply in those States in which the legacy may be attached in the hands of the executor, because in such States the plaintiff has a plain, adequate, and com- plete reiliedy at law.^ § 723. Proceedings in Xizecution against Trustee. — If a trustee dies while the suit is pending, but before judgment, his executor or administrator is generally liable to the same process to compel him to undertake the defence of the trus- tee's position as is provided by statute in case of the death of a principal defendant, and the suit then proceeds as if the executor or administrator had been originally summoned. In Massachusetts the statute further provides that, if the execu- tor or administrator does not appear, the plaintiff may have judgment against him, and the execution shall cover the 1 Day V. Lamb, 6 Gray, 323. 2 Vantine a. Morse/ 104 Mass. 275. ATTACHMENT AND TRUSTEE PEOCESS. 535 amount the executor or administrator ■would have been obliged to pay the defendant, and payment on .execution pro- tects and discharges the executor or administrator ; and if he does not pay voluntarily, scire facias may issue against him as against the original trustee ; ^ and if the trustee dies after Judgment, scire facias may be issued against his executor ; or the executor or administrator may pay on the original ex- ecution the amount he would have had to pay the original de- fendant.2 The liability of the executor or administrator is primarily on the goods or effects of the estate in his hands, but he may become personally liable in the same manner as when he is principal defendant ; and such liability is enforced in the same manner by scire facias upon suggestion of waste, or by suit on probate bond.^ 1 Mass. Pub. Sts. o. 183, §§ 55-60; Patterson v. Patten, 15 Mass. 473. 3 Mass. Pub. Sts. c. 183, § 59. « Mass. Pub. Sts. o. 183, §§ 57, 58, 59, 61, 62. 536 LAW OP EXECUTORS AND ADMINISTRATORS. CHAPTER XXVn. SUITS ON PROBATE BONDS. § 724. Obligation of Probate Bonds. "§ 729. Estoppel of Judgment or Decree 725. Scope of Executor's Bond ; as to Facts. Trusts. 730. Suits by Leave of Court. 726. Suits on Probate Bonds. 731. Breaches of Bond. 727. Massachusetts Statute as to Suits 732. Liability on Joint Bond. on Probate Bonds. 733. Liability of Sureties. 728. Suits by and without Leave of 734. Limitation of Suit on Bond. Probate Court. § 724. ObUgation of Probate Bonds. — The form and gen- eral characteristics of administration bonds have been already discussed in a preceding chapter upon Administration Bonds, Several additional remarks upon their general scope maybe proper in this place as bearing upon the proceedings to en- force the liability of the executor or administrator and the sureties upon the bond. The bond covers all the estate that comes into the hands of the executor or administrator as well before the execution of the bond as afterwards, for the bond is intended to cover the whole estate of the deceased.^ The liability upon the bond is one which is limited by the life of the executor or admin- istrator, or by his continuance in office. Thus if one of two joint executors who have given a joint bond, dies, the other is not liable for any breach occurring after the said death ; or if a single executor dies, his sureties are not liable for any breach of the bond occurring after his death.^ Whether a probate bond covers the proceeds of real estate sold to pay 1 Dawes v. Edes, 13 Mass. 177; Choate v. Arlington, 116 Mass. 552; Stetson V. Moulton, 140 Mass. 597. 2 Towne v. Ammidown, 20 Pick. 540 ; Brazier v. Clark, 5 Pick. 96 ; Brooks V. Hope, 139 Mass. 351. SUITS ON BONDS. 537 debts and legacies depends upon the condition of the bond. The modern form of administration bond is generally condi- tioned that the executor or administrator shall administer, according to law or the will, the proceeds of real estate sold to pay debts and legacies as well as the personal estate. Such a bond does not cover a surplus remaining after a sale of more land than was necessary to pay debts and legacies, nor does it cover moneys received by sale of land under direc- tion of a will, if such sale is not to pay debts and legacies, but is merely to convert the character of the property ; ^ and to meet this, in Massachusetts the bond is now made to cover the proceeds of all real estate " sold or mortgaged," without expressing for what particular purpose.^ § 725. Scope of Executor's Bond ; Trusts. — When the bond is given by an executor, the duty which the bond undertakes to enforce, and for the proper fulfilment of which the obligors are responsible, is the administration of the estate according to the will of the testator, as well as according to law.* Cases may arise where it is doubtful whether the directions of the will constitute a trust of which the executor is a trustee, or whether such directions are simply a rule for administering the estate. These questions are too numerous for discussion in this work, and belong properly to the law of the construction of wills ; but it may be said that in the former case, the executor is not liable upon his probate bond for failure to comply with the directions, but in the latter he is.* But the liability for the estate as executor continues until the executor has assumed the duties of the trust by giving bonds, and otherwise quali- fying himself to act as trustee. Until that time, although he may not be liable for not performing the directions of the will, his liability to account for all the estate which 1 White V. Ditson, 140 Mass. 351; Kobinson v. Millard, 133 Mass. 236. * White V. Ditson, supra. 8 Towne v. Ammidown, 20 Pick. 535; Hall v. Gushing, 9 Pick. 395. * Hall V. Gushing, 9 Pick. 405. 538 LAW OP EXECUTORS AND ADMINISTRATORS. comes into his hands remains ; and if he do not so account, it is a breach of the probate bond.^ § 726. Suits on Probate Bonds. — The principal aim in suits on these administration bonds is to render the sureties liable; as the executor and administrator is liable to other simpler forms of process so far as concerns his personal lia- bility, and the remedy against him on the bond is merely cumulative.^ The executor or administrator is, however, of course responsible and is generally made a party, and his con- duct is always in question, as the breach of the bond must have been committed by him. The nature of the security afforded by the probate bond is thus stated by Mr. Chief Justice Shaw, in a Massachusetts case : * " A probate bond under the law of Massachusetts is a security and obligation of a peculiar character, given by an officer charged by law with a duty and trust of a various and miscellaneous character, usually given in a round sum, with condition to perform the duties of such trust. This condition, though expressed in few words, from its very gen- erality embraces a variety of acts, to continue for a series of years, in which a great variety of persons may have interests as creditors, legatees, distributees, annuitants, wards, minors, married women, and others. It is given to the judge of pro- bate, not in his personal but in his official capacity, as trustee for all persons interested, and on his decease it passes to his successors in office, not to his personal representatives. When put in suit, it must be in the name of the judge of probate. One judgment is rendered for the entire penalty ; and execu- tion may be awarded according to the circumstances of the case, and, upon particular breaches averred and proved, in favor of certain individuals as judgment Creditors, creditors whose debts are allowed under a commission in insolvency, 1 Newcomb v. Williams, 9 Met. 534. 2 Loring v. Kendall, 1 Gray, 305, 312, 313. * Loring v. Kendall, supra. SUITS ON BONDS. 639 and payment of a dividend decreed thereon, or distributees whose claims are ascertained by a probate decree of distri- bution ; or in favor of the judge of probate himself, for the general benefit. In case these various awards of execution do not exhaust the whole penalty, the judgment for the residue stands as a security for any other breach which may occur at any time afterwards, to be sued for by a scire facias either for the benefit of a party entitled to claim in his own right, or by the judge of probate as trustee for others. The administrator himself may be subject to various suits, by action or scire facias ; but the only liability of the surety is on the bond, and the only cause of action upon that liability is the action to be commenced and prosecuted in the name of the judge of probate." § 727. Massachusetts Statute as to Suits on Bonds. — The statutes of the various States provide numerous ways of en- forcing the liability upon the probate bond. It would be impossible, in a work of this nature, to go into a complete examination of the practice of the various States in this re- gard in detail ; but it may be said that the statute of Mas* sachusetts will serve as an example of the statutes relating to this remedy in the Eastern States and some of the others, and the discussion will be limited to that statute. In that State it is provided that" probate bonds may be put in suit by a creditor of the deceased for his own benefit, when the cred- itor has recovered a judgment for his debt against the execu- tors or administrators, and they have neglected upon demand to pay the judgment or to show sufficient goods or estate of the deceased to be taken on execution. If the estate is insol- vent, the creditor may sue on the bond when the amount due him has been settled by decree of distribution, when the executor fails to pay the judgment on demand.^ Any of the next of kin may bring such a suit to recover his share of the personal estate, after a decree of the probate court ascer- 1 Mass. Pub. Sts, G..143, §§ 10, 11. 540 LAW OF EXECUTORS AND ADMINISTEATOES. taining the amount due to him, if the executor or administra- tor fails to pay the amount due to him, on demand.^ Any person interested in the estate may represent to the probate court that the executor or administrator has failed to perform his duty in any particular, and the court will then authorize any creditor, next of kin, legatee, or other person aggrieved by such maladministration, to bring an action on the bond. If the judge of probate himself should happen to be an obligor on the bond, either as principal or surety, the bond having been given to some preceding judge, the suit may be brought in the name of the obligee, or his executor or administrator ; and in such a case, the register of probate may authorize the suit, just as the court would in other cases.^ If the action is brought under §§ 10, 11, or 12, the writ must be indorsed by the persons for whose benefit or at whose request the action is brought, or their attorney ; and the indorsers will be liable for the costs. If the action is brought for the benefit of cred- itors or next of kin, there must be a further indorsement to that effect.^ Provision is also made for continuing the suit at the instance of the sureties, if the principal obligor is not made party in the suit, and for summoning him in if he is a resident of the Commonwealth, and also for his arrest or the attachment of his goods and summoning him to appear. If he does not appear, judgment, if rendered for the plaintiff, shall include him with the other defendants, as if he had been originally made a party, and an attachment or bail shall be liable to respond in the same way as if made or taken in the original suit.* The suit must be brought in the Supreme Court for the county in which the bond was taken ; and if it appears that the condition of the bond has been broken, the court, upon a 1 Mass. Pub. Sts. c. 143, § 12. 2 Mass. Pub. Sts. c. 143, §§ 13, 14. 8 Mass. Pub. Sts. c. 148, § 15. * Mass. Pub. Sts. o. 143, §§ 16, 17. SUITS ON BONDS. 541 hearing in equity, shall award execution in the^name of the plaintiff, as follows : — First. If the action is brought for the benefit of a creditor, the execution shall be for the use of the creditor, for the amount due him upon the judgment he has recovered, or the decree of distribution above mentioned. Second. If the action is brought for a person who is next of kin, the execution shall be for his use, for the amount due him according to the decree of the probate court. Third. If the breach of the bond is non-accounting, the execution shall not be to the use of any person, but for the full value of all the estate which has come to the hands of the executor or administrator, and for which he does not satis- factorily account, and for all damages occasioned by his neg- lect or maladministration. Fourth. If the action is brought for any other breach of condition, the execution shall be for such amount and for the use of such persons, or without expressing it to be for the use of any person, as the court shall deem proper. Fifth. If there are two or more persons for whose use ex- ecution is to be awarded, there shall be a separate execution for the sum due to each. Sixth. The execution shall include the costs of suit, as well as the debt or damages ; and if there is more than one execution, the costs shall be equally divided between them. If the execution is for the use of any particular person, he is considered the judgment creditor, and may cause the execu- tion to be levied in his own name and for his benefit, as if the action had been brought and the judgment recovered by him. If the execution is not awarded to the use of any particular person, the money received thereon shall be paid to the co- executor or CO- administrator, if there is any, or to the person who is then the rightful executor or administrator, and shall be assets in his hands to be administered according to law. If after the execution has once been awarded, the executor or 542 LAW OP EXECUTORS AND ADMINISTRATORS. administrator commits a new breach, or if a creditor, next of kin, or legatee, or other person interested in the estate has a claim for further damages on account of any neglect or mal- administration of the executor or administrator, a writ of scire facias on the original judgment may be sued out in the same manner as is provided for the commencement of the original suit, and the court shall award execution in the same way.^ § 728. Suits by and •without Leave of Probate Court. — It is to be noticed that the actions given by this statute may be divided into two classes ; that is, those brought by leave of the probate court, and those brought without such leave. The for- mer kind of suit may be brought, by leave of the probate court, by any one interested in the estate, and is in the nature of a general administration suit, the judgment being for the pen- alty of the bond, and there being a hearing in equity to deter- mine the amounts due to the various persons interested in the estate, and several executions being issued to those per- sons for their dues.^ The latter class is composed of two kinds of plaintiffs, creditors and distributees ; and the dis- tinctive feature of this class is that the claim upon which suit is brought must have been definitely ascertained in amount before such suit. Thus, if the suit is by a creditor, he must have previously obtained judgment at law for his debt, if the estate is solvent ; or if the estate is insolvent, there must have issued a decree of distribution by the probate court, di- recting a dividend to be paid. If the suit is by'a distributee, it cannot be maintained unless the amount due to the distrib- utee has been ascertained by a decree of distribution in the probate court.* If a creditor has not obtained judgment, and there is no decree of distribution in insolvency, he must be authorized by the judge of probate to sue ; and such a suit would be a general administration suit, in which the rights of 1 Mass. Pub. Sts. c. 143, §§ 19-23. « Newcomb v. Williams, 9 Met. 537. 8 Paine v. Moffitt, 11 Pick. 499. SUITS ON BONDS. 543 all parties would be settled, and not only the right of the par- ticular creditor who institutes the suit.^ When the estate is administered in two States or countries, the question is whether it is in fact solvent or insolvent, which is decided by taking into account all assets and all lia- bilities, so far as known in both States.^ If it is in fact sol- vent, a judgment creditor must have judgment before he can sue on the bond for his debt. If it is insolvent, he must have a decree of distribution. If it is in fact insolvent, and no judgment has been obtained, but a decree directing payment of all debts in full, this decree is a nullity, and a failure to obey it is no breach of the bond.* It will be noticed that the statute does not include legatees in the class of persons who may bring suit without leave of the probate court. Under an earlier statute it was doubted whether, if the legacy was for a definite amount of money, a suit on the bond to recover it might not be brought without leave of the probate court ; but under the existing statute, which expressly states what persons may bring such a suit without such leave, a legatee is not so empowered, and must have leave to bring his suit.* But if the bond is to pay debts and legacies, a suit may be begun by a general legatee or one whose legacy is not pecuniary, without any decree of dis- tribution or judgment at law.® No suit can be brought upon the bond by a creditor or distributee without leave of court, until he has made demand upon the executor or administra- tor.^ But this rule does not apply when the decree of dis- tribution is that money shall be ^aid into the treasury of the Commonwealth. In such case the Commonwealth may sue on the bond without alleging or making a previous demand.'^ 1 Barton v. White, 21 Pick. 58. « Supra, § 575. » Dawes v. Head, 3 Pick. 142. * Mass. Pub. Sts. c. 143; Newcomb v. Williams, 9 Met. 536. 6 Wood V. Barstow, 10 Pick. 369. 6 Leland v. Kingsbury, 24 Pick. 315; Paine v. Moffitt, 11 Pick. 496. ' Leland v. Kingsbury, supra. 544 LAW OP EXECUTORS AND ADMINISTEATOES. Nor is any demand upon the sureties necessary before bringing the suit.^ § 729. Estoppel of Judgment or Decree. — If a judgment is recovered against the executor or administrator, the sureties are bound by it, and cannot controvert any of the facts estab- lished by the judgment, except when the judgment is obtained by fraud.2 Tlius where an incorporated company sued an administrator and obtained judgment on a demand against the estate, and then brought suit on the probate bond, it was held that the sureties were estopped to go into the question of whether the company was duly incorporated, and were bound by such a judgment, except when the judgment was fraudulent and collusive.* This rule, however, does not cover cases under the special statute of limitations, and the sureties may show that a judgment against the executor or adminis- trator is void because the cause of action was barred by that special statute.* The same principle of estoppel applies when the action on the bond is brought by one entitled to distribution under a probate decree. The facts settled by that decree cannot be controverted by the defendants in the action on the bond. Thus where a decree ordered distribution to the administrator of a distributee who died before distribution, it was held that, in an action on the probate bond for failing to comply with that decree, the validity of the appointment of the admin- istrator of the distributee could not be investigated any more than the correctness of the sum awarded to him by the decree of the probate court.^ In such a suit the sure- ties cannot impeach the settlement of the accounts in the probate court. For their obligation is that the executor or administrator shall conform to such decree, whatever it may 1 Wood V. Barstow, 10 Pick. 368. 2 Heard v. Lodge, 20 Pick. 53. ' Heard v. Lodge, supra, * Robinson v. Hodge, 117 Mass. 224. 6 White V. Weatherbee, 126 Mass. 450. SUITS ON BONDS. 645 be ; and if he does not, there is a breach of the bond.^ Even if the account was fraudulently settled by the admin- istrator or executor, the sureties cannot attack it collaterally in suit ' on the bond ; but the account should be resettled in the probate court.^ § 730. Suits by Leave of Court. — In a Suit where leave of the probate judge is a necessary prerequisite to bringing suit, the administrator or executor has no right to appear and con- test the application made to the judge of probate ; nor have his sureties. And after the order is made they have no right to object, in the suit on the bond, that the order was not prop- erly granted ; for the leave to sue does not fix any liability upon them, but merely gives an opportunity for the question of liability to be raised.^ Therefore, if a surety on the bond objects in a suit on the bond that the order authorizing the suit was made before the decree which the administrator failed to obey was affirmed by the Supreme Court on appeal, and the affirmance certified in the probate court, this objection will not be sustained, because the order is not assailable by the administrator or his sureties.* But the executor or adminis- trator may show that the order is void ; for example, that it was made orally, when the statute only authorizes a permis- sion in writing.' But if the decree giving authority to sue is in writing, and purports to be dated previous to the beginning of suit, the defendants in action on the bond cannot object that the decree was not in fact written till after suit was be- gun, for the decree is conclusive upon that point.^ The strict wording of the statute has been slightly extended in one case ; that is, when the action is brought by a person who is next of 1 Choate v. .Jacobs, 136 Mass. 298. 2 Paine v. Stone, 10 Pick. 75. 8 Fay V. Rogers, 2 Gray, 175; Bennett v. Woodman, 116 Mass. 518; Richardson v. Oakman, 15 Gray, 57. * Choate v. Jacobs, 136 Mass. 298. 5 Fay V. Rogers, 2 Gray, 175. ° Richardson v. Hazleton, 101 Mass. 108. . 35 546 LAW OP EXECUTORS AND ADMINISTRATORS. kin to recover his share of the personal estate, after a decree of the probate court ascertaining the amount due him ; and this rule is held to apply to the case where such distribu- tion is ordered by decree to be paid to the administrator of the next of kin, and suit is brought by the administrator for failure to comply with that decree. In such case no order is necessary .1 If the suit is brought by a judgment creditor, or a legatee or distributee, after decree of distribution, the intei^ est of the person bringing the suit may be contested at trial, because that is a material fact in proving his case, and, if it is defeated, the action fails.^ But if the action is brought for a general accounting, for the benefit of all interested in the estate, the fact that the person at whose request the action is brought is not interested in the estate is no defence to the action ; for the judge of probate represents those interests, and the execution will be according to the interests proved in accounting.^ When the suit is a general one, brought by leave of the judge of probate, the judgment is general for the penalty of the bond,* and all moneys taken on execution are to be paid over to any co-executor or co-administrator of the one who has committed the breach, if there is such co-execu- tor or co-administrator ; if there is not, such moneys may be paid to the executor or administrator who committed the breach, if the judge of probate thinks fit to continue him in office, — that is, if the breach is one which does not im- plicate the integrity of the executor or his fitness to admin- ister the estate, and he submits to the judgment and charges himself with the amount. But generally, the executor or ad- ministrator who has committed the breach will be removed and the assets turned over to his successors, as provided by the statute.^ 1 White. V. Weatherbee, 126 Mass. 452. ^ Robinson v. Hodge, 117 Mass. 224. * Bennett v. Woodman, 116 Mass. 518. * Glover v. Heath, 3 Mass. 252; Paine ». Mclntier, 1 Mass. 69. * Newcomb v. Williams, 9 Met. 537. SUITS ON BONDS. 647 A noticeable feature of this remedy is that the hearing in which the question of what amount shall be awarded on execution on the bond, when the suit is for general adminis- tration, is a hearing in equity, in which all equitable consider- ations governing the administration of the estate may be taken into account.^ Therefore when the suit is brought for a failure to account, the hearing in equity is similar to the settlement of the estate, as has been previously referred to in regard to a settlement of the estate in equity ; for at such a hearing an account of the estate, so far as not already ac- counted for, is stated in the Supreme Court, so far as to show what is included in it as a basis for future adjustments with the executor and his sureties, and to enable the court to de- cide as to the charging of interest.^ The two classes of action given by the statute, — that is, those by a single creditor or distributee for his single ascer- tained demand, brought without leave of the court, and those brought by leave of the court for a general settling of the estate, — are so distinct in character that an amendment of the suit cannot be made from one to the other. For instance, if the suit is brought without leave of the court by a creditor whose claim is ascertained, but who has not made due de- mand upon the administrator therefor, the execution cannot issue for a general settling of the estate.^ § 731. Breaches of Bond. — In the suits brought by a cred- itor or distributee, the breach of the bond upon which suit is brought is the failure to pay the debt or distribution share on demand.* In the suits brought by leave of the probate court for a general accounting, the breaches may be numerous and varied ; for any maladministration of any kind is a breach of the condition of the bond ; ^ for example, the failure of an 1 Mass. Pub. Sts. c. 143, § 20. 2 Cboate v. Arrington, 116 Mass. 552. 2 Paine v. Stone, 10 Pick. 75; Newcomb v. Wing, 3 Pick. 170. * Supra, § 728. ' Loring v. Kendall, 1 Gray, 312. 548 LAW OF EXECUTORS AND ADMINISTRATORS. executor or administrator to pay over rents of real estate re- ceived by him to tlae heirs on demand may be a breach of his bond, but tliis depends upon the liability he is under as to such rents. Generally, the executor or administrator has no right to the rents at all. By statute in Massachusetts, if he occupies the real estate or receives the rents thereof, he must account for it in the probate court to the heirs and devisees ; and until he has so accounted, or failed to account when he should do so, there is no breach of his bond in failing to pay over the rents to those entitled to them.^ If the rents have been treated as general assets for payment of debts by the heirs and devisees, either expressly or by assenting to ac- counts in which they are so treated, it seems that a creditor might have a suit on the probate bond for a failure to so applythem.2 A neglect or refusal of the executor or administrator to pay a judgment recovered by a creditor of the estate, in a suit brought after the cause of action had been barred by the special statute of limitations regarding suits against executors or administrators, has been held not to be a breach of the bond which renders the sureties liable on the bond. This rule may be supported on the ground that that statute is of controlling and decisive effect, and that, as a matter of public policy, it is allowed that the sureties shall go behind the judgment, and show that it is invalid, because the action was barred by the statute, and they, not being parties to the suit, are not bound by the negligent or collusive action of the executor or adminis- trator in allowing judgment to be recovered.^ § 732. Liability on Joint Bond. — The liability of a joint ex- ecutor upon the probate bond has been already adverted to.* 1 Choate v. Jacobs, 136 Mass. 299 ; Brooks v. Jackson, 125 Mass. 307. ^ Choate V. Jacobs, supra ; Brooks u. Jackson, supra ; Stearns v. Stearns, 1 Pick. 157. 8 Robinson v. Hodge, 117 Mass. 224; Dawes v. Shed, 15 Mass. 6. * Supra, §§ 588, 590; Patterson's Est., 1 W. & S. 291; Boyd ». Boyd, 1 Watts, 365. SUITS ON BONDS. 549 If the executors give several bonds, their liability is separate ; but one may be liable for the acts of the other,' if he has so acted that his conduct in regard to allowing the other execu- tor to manage the estate improperly is such as to constitute a wrongful administration on his part, and therefore to be a breach of his bond.^ § 733. Liability of Sureties. — The liability of the sureties on the probate bond is generally co-extensive with that of the executor or administrator ; but in two cases the surety is re- leased from a liability which binds the principal. One of these is in case of a judgment recovered by a creditor of the estate against* the executor or administrator, upon a demand which was barred, before suit was brought, by the special statute of limitations respecting executors and administrators. In such a case, the judgment binds the executor or administrator per- sonally, and the sureties may show in suit against them on the bond that the judgment is void as to them, being barred by the statute.^ The other case is when the judgment was obtained by collusion between the creditor and the executor or administrator .3 The surety who has been called upon to pay any sum upon the bond may sue his co-surety for contri- bution.* If one surety joins the bond as surety upon the request of the other surety, who promises to hold him harm- less, the surety so guaranteeing cannot sue the other surety for contribution, even though the promise was oral.^ If a surety, after the administrator has been removed for malad- ministration, is appointed administrator, and charges himself with the amount of his indebtedness on the bond, as assets of the estate, this is regarded upon the principle already stated as a discharge of the debt, and the former administrator is relieved from liability to that amount, and the surety becomes 1 McKim V. Aulbach, 130 Mass. 481; supra, §§ 588-590. 2 Robinson v. Hodge, 117 Mass. 224. * Heard v. Lodge, 20 Pick. 53. * Blake v. Cole, 22 Pick. 97. ^ Blake v. Cole, supra. 550 LAW OF EXECUTORS AND ADMINISTRATORS. personally liable to the estate. The former administrator, however, is still indebted personally to the surety.^ By provision of statutes before noticed, in many States sureties may be discharged from the bond upon making proper application and another bond given. In such case the liability of the sureties for subsequent breaches ceases. Their liability for previous breaches continues.^ It has been decided that, if no breach of the bond is shown, except a fail- ure to account, the liability is for nominal damages ; but if there has been a substantial misappropriation of funds before the discharge, the surety would be liable for that.^ § 734. Limitation of Suit on Bond. — Suit on such a tond is not barred until twenty years from the time the breach com- plained of occurred.* ^ Hazleton v. Valentine, 113 Mass. 472. a McKim V. Blake, 132 Mass. 348 ; McKim v. Baitlett, 129 Mass. 226. * McKim V. Bartlett, supra. * Prescott V. Read, 8 Cush. 363; White v. Swain, 3 Pick. 365; Thayer V. Keyes, 136 Mass. 104. limitations; set-off. 551 CHAPTER XXVIII. statute of limitations; sbt-opp. § 735. General Statute of Limitations. § 739. Special Statute of Limitations 736. "Waiver of Statute ; Part Pay- of Actions by Creditors. ment ; New Promise. 740. Application of the Statute. 737. Statute in Equity ; Special Stat- 741. Equitable Exception to this Stat- ute Bars. ute. 738. Limitation of Time before bring- 742. Set-oflf. ing Suit. § 735. General Statute of Limitations. — The statutes of lim- itations applicable to executors and administrators may be di- vided into two classes : the general statutes which apply to the claims for or against the deceased, as well as to all other debts, claims, etc. ; and the special statutes which limit the bringing of suits against the executor or administrator, with a view to limiting the time of administering the estate, and protecting the executor and administrator in the discharge of his duties. In regard to the first, it may be said that, if any claim in favor of or against the deceased was barred before his death, or by statute within a limited time after his death, the claim remains barred ; ^ while if not so barred, the operation of the statute is in some States suspended for a limited time.2 Thus, in Massachusetts, statutory provisions exist in the general statute of limitations, to the effect that, if a person entitled to bring or liable to an action dies before the action is barred by the general statute, or within thirty days thereafter, and the cause of action survives, the 1 Supra, § 544; Mass. Pub. Sts. c. 197, §§ 12, 13; Bacon v. Pomeroy, 104 Mass. 583. 2 Everett v. Williams, 45 N. J. L. 140. 552 LAW OP EXECUTORS AND ADMINISTRATORS. action may be commenced by or against the executor or ad- ministrator of such deceased person, at any time within two years from the grant of letters testamentary or of adminis- tration ; and if, in an action duly commenced within the time limited, the action is abated by the death of a party, an action may be begun within a year after the original suit is abated.^ This statute is explained in a case in that State as meaning that, if a person entitled to bring an action dies before the cause of action is barred, or within thirty days thereafter, his executor or administrator may bring the action within two years after he has been appointed executor ; and when a per- son liable to an action dies before or within thirty days after the cause of action is barred, his executor or administrator is liable to said action for two years after he has received letters of administration.^ But if either debtor or creditor dies after thirty days after the statutory period has elapsed, no action can be brought by or against the executor or administrator .^ § 736. Waiver of Statute ; Part Payment ; New Promise. — One or two points deserve special mention in this regard. First, it is held that, in case of a debt due by the deceased, the executor or administrator is not bound to take advantage of this general statute of limitation, but may waive it and pay the debt.* But the executor or administrator cannot waive the statute in favor of a debt, due to him by the deceased, which was barred by the statute at the death of the deceased.^ As to the special statute of limitations, as will be seen later, a waiver is generally not allowed.® The effect of part payment or a new promise by one of sev- eral executors or administrators is generally governed by 1 Mass. Pub. Sts. c. 197, §§ 12, 13 ; Bacon v. Pomeroy, 104 Mass. 583. 2 HiU V. Mister, 5 Allen, 27. 8 Mass. Pub. Sts. o. 197, §§ 12, 13; Fisher v. Metcalf, 7 Allen, 210. * Supra, §§ 544, 670; Fisher v. Metcalf, 7 Allen, 209; Foster v. Starkey, 12 Cush. 324; Emerson v. Thompson, 16 Mass. 429; Puroel v. Purcel, 1 MoCart. 514. 6 Richmond, Ex parte, 2 Pick. 567. * Infra, § 740. limitations; set-off. 553 statutes relating to that particular subject. In the absence of statutes upon this subject it is generally held that a new promise, removing the bar of the statute, may be made by one of several executors or administrators in his representa- tive capacity, and will bind the others in their representa- tive capacity.^ In Massachusetts, the provision of the statute upon the question how far one of several joint executors or administrators is bound by a new promise or part payment by another, is to the effect that no one of two or more joint executors or administrators of a contractor shall lose the benefit of the statute by reason only of an acknowledgment or promise made or signed, or of a payment made by any other or others of them.^ But the judgment may be given against the one who is bound by the new promise, and for the one who is not.^ And similar provisions exist in many other States, for which a reference must be had to the statutes of those States. In Pennsylvania and Connecticut it has been held that if the debt is barred by the statute a new promise by the executor or admmistrator will not bind him to pay the debt in his oflBcial capacity.* In other respects the same rules as to part payment or a new promise by a single executor or administrator apply as in ordinary cases in regard to the statute of limitations, and further discus- sion of them in this work is not necessary. § 737. statute applies to Equity; Bar of Special Statute. — The time limit of the statute of limitations applies as well to suits in equity as to actions at law.^ There are, however, 1 Shreve v. Joyce, 36 N. J. L. 44; Emerson v. Thompson, 16 Mass. 431; Johnson V. Beardslee, 15 Johns. 5; Hammon v. Huntley, 5 Cow. 494; Cayuga Co. Bank v. Bennett, 5 Hill, 236. 2 Mass. Pub. Sts. c. 197, § 17. 8 Mass. Pub. Sts. c. 197, § 18; Smith v. Kimball, 105 Mass. 499. * Fritz V. Thomas, 1 Whart. 66; Reynolds v. Hamilton, 7 Watts, 420; Clarke v. McGuin, 11 Casey, 259 ; Peck v. Botsford, 7 Conn. 140. 6 Low V. Bartlett, 8 Allen, 259; Burditt t>. Green, 8 Pick. 108; Sugar River Bank v. Fairbank, 49 N. H. 139, 140. 554 LAW OF EXECUTOBS AND ADMINISTRATORS. certain cases of fraud in which equity will relieve against the statute.^ A debt may be barred by the special statute of limitations of actions against executors or administrators, although it is still suable so far as the general statute is concerned.^ § 738. Limitations of Time before bringing Suit. — There exists in Massachusetts a special statutory limitation by which no suit shall be brought by a creditor of the deceased against the executor or administi-ator within one year from the time of his giving bond, unless the demand of the suit is one which would not be affected by the insolvency of the estate, or is brought after the estate is represented insolvent, to ascertain a contested claim.^ It has been held that an action for funeral expenses is not covered by this statute, but is within the exception of the statute, and that an action may be brought within a year from the giving bond or giving notice according to the provisions of the statute.* Similar statutory provisions are found in many other States, setting various periods before which actions shall not be begun against an executor or administrator, for a detailed account of which reference should be had to the statutes of the various States. § 739. Special Statutes of Limitations. — In many States special statutes exist by which the time is limited within which a creditor of the estate may sue the executor or admin- istrator. The statutes in those States, which show the dis- tinctive features of the various rules, are as follows : — In California, if a person entitled to bring an action die before the expiration of the time limited for the commence- ment thereof, and the cause of action survive, an action may be commenced by his representatives after the expiration of that time, and within six months from his death. If a person 1 Wells V. Child, 12 Allen, 333. See 2 Story Eq. § 1521. » Harlow v. Dehon, 111 Mass. 198. 8 Mass. Pub. Sts. c. 136, § 1 ; Amoskeag Manuf. Co. v. Barnes, 48 N. H. 25, 29; supra, §405. * Studley v. Willis, 134 Mass. 155. limitations; set-off. 565 against whom an action may be brought die before the expira- tion of the time limited for the commencement thereof, and the cause of action survive, an action may be commenced against his representatives after the expiration of that time, and within one year after the issuing of letters testamentary or of administration.^ In Connecticut, when the creditor of an estate not repre- sented insolvent, shall present his claim to the executor or administrator within the time limited by the court of probate, or by any provision of this chapter, and he shall disallow and refuse to pay it, if such creditor shall not, within four months after written notice that his claim is disallowed, commence a suit against him for the recovery thereof, he shall be debarred of his claim against such estate ; but if such creditor die within the said four months, and before suit brought as afore- said, a further period of four months shall be allowed in favor of his executor or administrator.^ In Illinois, all demands against the estate of any testator or intestate shall be divided into classes in manner following, to wit : — Seventh. All other debts and demands of whatsoever kind, without regard to quality or dignity, which shall be exhibited to the court within two years from the granting of letters as aforesaid, and all demands not exhibited within two years, as aforesaid, 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 dis- covered estate, saving, however, to femes covert, infants, per- sons of unsound 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 exhibit their claims.^ 1 Cal. Code Civ. Proc. § 353. » Conn. Gen. St. § 583. » lU. Annot. St. c. 3. 1 70. 556 LAW OP EXECUTORS AND ADMINISTRATORS. In Maine, actions against executors or administrators on claims against the estate, with two exceptions, shall, if brought after the time limited in a preceding section, be continued at the cost of the plaintiff until the next term of court, and for such further time, and on such other terms, as the court may order, unless, at least thirty days before commencement of suit, and within two years after notice given by him of his appointment, such claim was presented in writing and pay- ment demanded, or was filed in the probate office, supported by affidavit of the claimant or of some other person cognizant thereof, as provided in section sixty-two of chapter sixty-four, and such notice given as the court orders thereon ; a tender of payment, or offer thereof, filed in the case during the time of such continuance, shall bar the same, and the defendant shall recover his costs; and no action shall be maintained on such claim, unless commenced during said two years, or within six months following, except as provided in the follow- ing sections. Executors or administrators residing out of the State at the time of giving notice of their appointment, shall appoint an agent or attorney in the State, and insert therein his name and address. Executors or administrators remov- ing from the State after giving notice of their appointment shall appoint an agent or attorney in the State, and give pub- lic notice thereof ; demand or service made on such agents or attorneys has the same effect as if made on such executor or administrator. When an executor or administrator residing out of the State has no agent or attorney in the State, de- mand or service may be made on one of his sureties with the same effect as if made on him.^ In Maryland, it is provided that, if a claim be exhibited against an administrator which he shall think it his duty to dispute or reject, he may retain in his hands assets propor- tioned to the amount of the claim, which assets shall be liable to other claims, or to be delivered up or distributed, in case I Maine Key. St. c. 87, § 12. limitations; set-off. 657 the claim be not established ; and if on any claims exhibited and disputed, as aforesaid, the creditor or claimant shall not within nine months after such dispute or rejection commence a suit for recovery, the creditor shall be forever barred, and the administrator may plead this in bar, together with the general issue or other plea proper to the case, and on any dividend to be made nine months after such dispute or rejec- tion, and failure to bring suit, the administrator may proceed to pay or distribute as if he had not knowledge or notice of such claim, or as if it did not exist.^ In Massachusetts, it is provided that no executor or admin- istrator, after having given due notice of his appointment, shall be held to answer to the suit of a creditor of the de- ceased, unless such suit is commenced within two years from the time of his giving bond for the discharge of his trust, except as is hereinafter provided.^ If the Supreme Judicial Court, upon a bill in equity filed by a creditor whose claim has not been presented within the time limited by the pre- ceding section, is of opinion that justice and equity require it, and that the creditor is not chargeable with culpable negli- gence in not presenting his claim within the time so limited, it may give him judgment for the amount of his claim against the estate of the deceased person, but such judgment shall not affect any payment or distribution made before the filing of such bill.^ When assets come to the hands of an executor or administrator after the expiration of two years from the time of his giving bond, he shall account for and apply the same as if they had been received within the two years, and shall be liable to an action or proceeding for the benefit of credi- tors, if such is commenced within one year after the creditor had notice of the receipt of the new assets by the adminis- trator or executor, and within two years after the assets were actually received.* If an action commenced against an ex- 1 Md. Rev. Code, Art. 50, § 178. = Mass. Pub. Sts. o. 136, § 9. » Mass. Pub. Sts. c. 136, § 10. * Mass. Pub. Sts. c. 136, § 11. 658 LAW OP EXECUTORS AND ADMINISTRATORS. , ecutor or administrator before the expiration of two years from the time of his giving bond fails of sufficient service or return by an unavoidable accident ; if the writ in such action is abated or defeated in consequence of a defect in the form thereof, or of a mistake in the form of the proceeding; if after a verdict for the plaintiff judgment is arrested, or if a judg- ment for the plaintiff is reversed on writ of error, the plaintiff may commence a new action for the same cause at any time within one year after the abatement or other determination of the original action, or after the reversal of the judgment thereon.^ Special provision is made in Massachusetts for the protec- tion of creditors whose claims have not accrued within the two years limited by law for the prosecution of suits against executors and administrators, as follows : a creditor of the deceased, whose right of action does not accrue within two years after the giving of the administration bond, may pre- sent his claim to the probate court at any time before the estate is fully administered : and if, on examination thereof, it appears to the court that such claim is or may become justly due from the estate, it shall order the executor or administra- tor to retain in his hands sufficient to satisfy the same. But if a person interested in the estate offers to give bond to the alleged creditor, with sufficient surety or sureties for the pay- ment of his claim, in case it is proved to be due, the court may order such bond to be taken, instead of requiring assets to be retained as aforesaid. This provision, so far as it re- lates to claims to become due, does not apply to or affect any estate which was in process of settlement on the 28th of February, 1879. The decision of the probate court upon the claim of such creditor is not conclusive against the executor or administrator, or any person interested to oppose the allowance thereof ; and they shall not be compelled to pay the same, unless it is proved to be due in an action com- 1 Mass. Pub. Sts. c. 136, § 12. limitations; set-off. 559 menced by the claimant within one year after his claim be- comes payable, or, if an appeal is taken from the decision of the probate court, in an action commenced within one year after the final determination of the proceedings on such appeal. The action should be upon the bond, if any has been given ; otherwise against the executor. If the action is upon the bond, the plaintiff should set forth his original cause of action against the deceased, in the same manner as he would in a declaration against the executor or administrator upon the same demand, and may allege non-payment of the demand as a breach of the condition of the bond ; and the defendant may avail himself of any matter of defence that would be available in law against the demand, if prosecuted in the usual manner against the executor or administrator.^ When an executor dies, resigns, or is removed, without having fully administered the estate of the deceased, and a new administrator is appointed, such new administrator will be liable to the actions of creditors for two years after he has given bond for the discharge of his trust, unless such actions were barred prior to the termination of the previous adminis- tration ; but after the expiration of said two years, he will, if he has given due notice of his appointment, have the benefit of the same limitations as in case of an original administrator or executor. And if new assets come into his hands after the time limited for beginning actions against him has ex- pired, he will have to account for such new assets, and will be liable to actions therefor just as an original executor or ad- ministrator would be.2 In Michigan, the rule is that every person having a claim against a deceased person, proper to be allowed by the com- missioners, who shall not, after, the publication of notice as required by law, exhibit his claim to the commissioners within the time limited by the court for that purpose, shall be for- 1 Mass. Pub. Sts. o. 136, §§ 13-16. » Mass. Pub. Sts. o. 136, §§ 17, 18, and § 11. 560 LAW OP EXECUTORS AND ADMINISTEATOES. ever barred from recovering such demand, or from setting off the same in any action whatever. And all actions and suits which may be pending against a deceased person at the time of his death may, if the cause of action survives, be prose- cuted to final judgment, and the executor or administrator may be admitted to defend the same ; and if judgment shall be rendered against the executor or administrator, the court rendering it shall certify the same to the probate court, and the amount thereof shall be paid in the same manner as other claims duly allowed against the estate.^ In New Hampshire, no suit shall be maintained against any administrator for any cause of action against the deceased, unless the same is commenced within three years next after the original grant of administration, exclusive of the time such administration may have been suspended, except in cases where he has retained estate in his hands for the payment of such claim by order of the judge.^ In New Jersey, any creditor who shall not exhibit his claim to the executor or administrator within the time limited and prescribed by the court, on notice, shall be forever barred from prosecuting or recovering his said demand, unless the estate shall prove sufficient, after all debts exhibited and allowed are fully satisfied, or such creditors shall find some other estate not inventoried or accounted for by the executor or administrator before distribution, in which case such credi- tor shall receive his ratable proportion out of the same.^ And it is further provided that, if any person against whom there is or shall be any such cause of action as is specified in certain sections of the act shall have died or shall thereafter die before the expiration of the times of limitation therein mentioned, the space or term, of six months next succeeding the death of such .person shall not be computed as part of the 1 Mich. Annot. St. §§ 5901, 5903. 2 N. H. Gen. Laws, c. 198, § 5. « N. J. Rev. tit. Orph. Ct. § 94. limitations; set-off. 561 limited period within which such action or actions is or are required to be brought by the said sections.^ lu New York, among the actions which must be brought within three years is enumerated an action against an ex- ecutor, administrator, or receiver, or against the trustee of an insolvent debtor, appointed, as prescribed by law, in a special proceeding instituted in a court or before a judge, brought to recover a chattel or damages for taking, detaining, or in- juring personal property by the defendant or the person whom he represents.^ In Ohio, it is provided that, if a claim agdnst the estate of any deceased person be exhibited to the executor or adminis- trator before the estate is represented insolvent, and be dis- puted or rejected by him, and the same shall not have been referred, the claimant shall, within six months after such dispute or rejection, if the debt or any part thereof be then due, or within six months after some part thereof shall have become due, commence a suit for the recovery thereof, or be forever barred from maintaining any action thereon ; and no action shall be maintained thereon after the said period by any other person deriving title thereto from such claimant. A claim shall be deemed disputed or rejected, if the execu- tor or administrator shall, on presentation of the vouchers thereof, refuse, on demand made for that purpose, to indorse thereon his allowance of the same as a valid claim against the estate.^ In Rhode Island, the rule is that no action shall be brought against any executor or administrator in his said capacity within one year • after the will shall be proved or administra- tion granted, nor after three years from the time of such proof or grant, except for the causes mentioned in section seventeen of chapter one hundred and eighty-six, provided 1 N. J. Rev. tit. Limit, of Actions, § 9. 2 4 N. Y. Rev. Sts. § 383. 8 Ohio Rev. St. § 6097. 36 662 LAW OP EXECUTORS AND ADMINISTRATORS. notice of his appointment be given according to law, said periods to be reckoned from the time of giving such notice. And the same rule in another section is stated to be that no action shall be brought against any executor or administrator in his said capacity within one year after the will shall be proved or administration granted, except for medicines and attendance in the last sickness, and funeral charges of the deceased, and excepting, also, actions brought in pursuance of section seven of this chapter; nor shall any action be brought against any executor or administrator in his said capacity, unless the same shall be commenced within three years next after the will shall be proved or administration shall be granted : Provided such executor or administrator shall give notice of his appointment by publishing the same in some public newspaper in this State, nearest to the place in which the deceased person last dwelt, or in such other manner as the court of probate shall direct, said periods to be reck- oned from the time of giving such notice.^ In Vermont, if a person entitled to bring an action before mentioned in this chapter, or liable to such action, dies before the expiration of the time limited therefor, or within thirty, days after, and if the cause of action survives, the action may be commenced by or against the executor or administrator within two years after such death, or the same may be pre- sented to the commissioners on the estate within two years after the grant of letters testamentary or of administration, and> not after, if barred by the provisions of this chapter ; but if the commissioners on such estate are required to make their report to the probate court before the expiration of said two years, the claim against the deceased shall be presented to the commissioners within the time allowed other creditors to present their claims.^ In Virginia, the statute provides that every action to recover 1 R. I. Pub. St. 0. 189, § 8; 0. 205, § 9. * Vermont Rev. Laws, § 972. limitations; sbt-opp. 563 money, which is founded upon an award, or on any contract, other than a judgment or recognizance, shall be brought within the following number of years next after the right to bring the same shall have first accrued, that is to say : If the case be upon an indemnifying bond, taken under any statute, or upon a bond of an executor, administrator, guardian, cura- tor, committee, sheriff or sergeant, deputy sheriff or sergeant, clerk or deputy clerk, or any other fiduciary or public officer, or upon any other contract by writing under seal, within ten years ; if it be upon an award, or be upon a contract by writ- ing, signed by the party to be charged thereby, or by his agent, but not under seal, within five years ; if it be upon any oral contract, express or implied, for articles charged in a store account, although such articles be sold on a written order, within two years ; and if it be upon any other contract, within three years, unless it be an action by one partner against his co-partner for a settlement of the partnership accounts, or upon accounts concerning the trade of merchandise between merchant and merchant, their factors, or servants, where the action of account would lie, in either of which cases the action may be brought until the expiration of five years from a ces- sation of the dealings in which they are interested together, but not after : Provided that the right of action against the estate of any person hereafter dying, on any such award or contract, which shall have accrued at the time of his death, or the right to prove any such claim against his estate in any suit or proceeding, shall not in any case continue longer than five years from the qualification of his personal representa- tive, or if the right of action shall not have accrued at the time of the decedent's death, it shall not continue longer than five years after the same shall have so accrued.^ The provisions of statute upon this subject in Massachu- setts are, as has been already stated, that no executor or administrator, after having given due notice of his appoint- 1 Va. Code, § 2920. 564 LAW OF EXECUTORS AND ADMINISTRATORS. ment, shall be held to answer to the suit of a creditor of the deceased,, unless such suit is commenced within two years from the time of his giving bond for the discharge of his trust, — except under certain circumstances, the first of which is, in substance, that the supreme court in equity may give tlie creditor judgment, if it is of opinion that the creditor is not chargeable with culpable neglect in not prosecuting the action within the time limited by the statute ; and the second of which is that, if new assets come into the hands of the executor or administrator aftef the expira> tion of the time limited by the statute, the action may be brought within two years from the time the assets are re- ceived, or within one year from the time the creditor knows of their accrual ; but such action affects only the new assets.^ In computing the time within which an action may be brought against an executor or administrator, the day of giving the bond, jand presumably of giving the notice, is to be excluded from the computation.^ A peculiarity of the special statute of limitations already adverted to is thsit the executor or administrator cannot waive its provisions, but must set it up as a defence ; and if he does not, the judgment does not bind the estate, but only himself.^ Nor will the judginent affect a surety upon the probate bond ; for if action is brought on the probate bond for non-payment of the judg- ment, the surety may set up the fact that the original claim was barred by the statute.* The special statute of limitations does not run till a proper bond is given. If the bond is to be without sureties, there must by statute in Massachusetts be a proper notice to creditors and persons interested in the estate ; but the general notice to all persons interested in the estate 1 Mass. Pub. Sts. c. 1.36, §§ 9-12; Bacon v. Pomeroy, 104 Mass. 583. 2 Paul V. Stone, 112 Mass. 27. 8 Thayer v. Hollis, 3 Met. 369; Wells v. Child, 12 Allen, 333, 336; Bacon V. Pomeroy, 104 Mass. 577, 585 ; supra, § 543. * Da-wes v. Shedd, 15 Mass. 6; Robinson v. Hodge, 117 Mass. 222. limitations; set-off. 565 is sufficient to make the bond good.^ The effect of not giving a proper bond is discussed in earlier sections.^ The special statute also depends upon the publication, of proper notices of the appointment of the executor or administrator. The effect of these notices has already been discussed.^ § 740. Application of the Statute. — The special statute of limitations of actions against executors or administrators applies to actions brought against those who have given bond to pay debts and legacies, as well as those who have given the ordinary bond.* If there is a change in the administration, it does not affect a claim already barred. Thus an administra- tor de bonis non is not liable for a debt which was barred by the lapse of time as to the previous administrator.^ If the debt was not barred as to the previous administrator, the period of the statute takes a new start at the appointment of the administrator de bonis non, and runs two years from his appointment.® The statute applies only to creditors, and does not include actions for legacies," nor general administration suits on bonds for breach of the bond by maladministration of the executor or administrator. In such case, the action may be brought within twenty years from the breach complained of, since the bond is a sealed instrument, and actions on sealed instruments are limited to that time.^ The statute bars a suit to recover taxes.^ § 741. Equitable Exception to the Statute. — In regard to the exception to the bar of the statute, when justice and 1 Wells V. Child, 12 AUen, 330. 2 Supra, §§ 269, 283. » Supra, § 327. « Jenkins v. Wood, 134 Mass. 115; Troy Nat. Bank v. Stanton, 116 "Mass. 435 ; Thompson v. Brown, 16 Mass. 172. 5 Veazie v. Marrett, 6 Allen, 372. « Fisher v. Metcalf, 7 Allen, 210; Mass. Pub. Sts. o. 136, § 17; Hemen- way V. Gates, 5 Pick. 321. ' Kent V. Dunham, 106 Mass. 586; Brooks ». Lynde, 7 AUen, 64. « Thayer v. Keyes, 136 Mass. 104. 9 Kich V. Tuckerman, 121 Mass. 222. 566 LAW OP EXECUTORS AND ADMINISTHATORS. equity require such exception, it is held that, if proper legal notice of appointment has been given, the creditor cannot avail himself of a lack of knowledge of the death of the debtor or the appointment of the executor or administrator unless possibly if the case showed a peculiar state of facts whereby it was impossible that the creditor should have known of the death or the notices of appointment, though even then no case is known to have so decided. This rule arises from the fact that the notice and statute of limitations are intended to secure a speedy settlement of the estate.^ But if the exe- cutor or administrator makes misleading statements of fact, by which the creditor is induced to delay suit until the statute bars it, or otherwise fraudulently delays proceedings, the statute is avoided.^ But it is held that requests by the exe- cutor to the creditor to delay suit, the executor alleging that he expects to realize funds and will then pay the debts, does not amount to fraud ; though whether this would be so held if the executor makes such statements, knowing them to be false, does not appear to have been decided.^ Ignorance of the existence of the special statute of limitations does not avoid the bar,* It is held, in the case below cited, that the exception in this statute which relates to cases in which justice and equity require the allowance of the debt, is to be construed as meaning that such debt shall be allowed, despite the special statute of limitations, in the same cases in which equity would re- lieve a creditor against the general statute of limitations, which are enumerated as follows : cases where there has been a fraudulent concealment of the cause of action, in which case the statute runs from the time that the cause of action 1 Sykes v. Meacham, 103 Mass. 285; Richards v. Child, 98 Mass. 284. « Wells V. Child, 12 Allen, 335. » Jenney v. Wilcox, 9 Allen, 245; Waltham Bank v. Wright, 8 Allen, 121. •• Jenney v. Wilcox, 9 Alien, 245. limitations; set-off. 567 is discovered; trusts, in which case the statute does not apply; cases where the debtor has fraudulently prolonged unfounded litigation, so as to defeat the right to proceed in another suit.^ In a case arising in Massachusetts the facts were somewhat peculiar. A creditor of the estate brought suit against the administrator in Vermont, the principal administrator being in Massachusetts. The suit in Vermont was delayed, and judgment not rendered till after the statute bar had run in the Massachusetts estate. The creditor then brought a bill in equity to enforce the judgment in Massachusetts. ; but the court held that there was no privity between the two ad- ministrations, and that the creditor might have sued in both States at once, and that there was no equity to relieve the creditor from the statute.^ § 742. Set-off. — Whenever either party to a suit to which the executor or administrator is a party, sues or is sued, as executor or administrator, and there are mutual debts between the testator or intestate and either party, one debt may be set against the other.^ But in an action by an executor in his own name, to recover money due to the testator in his life- time, and received by the defendant after his death, the de- fendant cannot set off a debt due to him from the testator, because the money is due to the executor;* or where the plaintiff declares, as executor, for a debt due after the death of the testator," or where he sues on a note given to him as 1 Wells V. Child, 12 Allen, 333. ^ Low V. Bartlett, 8 Allen, 259. » Jarvis v. Kogers, 15 Mass. 389, 407; Knapp v. Lee, 3 Pick. 452, 460; Boardman v. Smith, 4 Pick. 212, 215; Richardson v. Parker, 2 Swan, 529; Granger v. Granger, 6 Ohio, 25; Ray w. Dennis, 5 Ga. 357; Peacock u. Haven, 22 111. 23; Smalley e. Trammel, 11 Tex. 10; Mitchell v. Rucker, 22 Tex. 66. * Shipman ». Thompson, Willes, 103; BTewhall v. Turney, 14 111. 338; Aiken v. Bridgman, 37 Vt. 249. 5 Schofield V. Corbett, 11 Q. B. 779; Rees v. Watts, 11 Ex. 410; Pat- terson V. Patterson, 59 N. Y. 574. 668 LAW OP EXECUTOHS AND ADMINISTEATOES. security for a debt due to the testator.^ In settling estates in insolvency under the statute, a greater latitude of set-off is allowed than in ordinary suits at law. For in the latter case only liquidated demands, or those which are capable of being ascertained by calculation, are allowed to be set off ; whereas in the former cases, all mutual claims of all kinds are off set, and the balance only is the demand due to the estate.^ In Massachusetts, in an action by an executor for a debt due to the deceased, the defendant may off set any amount paid by him for funeral expenses, those expenses being, as has already been said, held in that State to be in the nature of a debt due by the deceased and not by the executor or administrator, unless he has ordered or ratified them himself .^ If an administrator, in his representative capacity, has a judg- ment in his favor against a debtor of the estate, and in an- other case there is a judgment against him for costs in a suit by him in the same capacity, these two judgments may be off set, although the judgment for costs is by statute to be col- lected of the administrator personally or from his goods.* The matter of set-off in suits by or against executors or adminis- trators is regulated in many States by statute. Thus in Massachusetts it is provided that in an action by an executor or administrator, a demand against his testator or intestate which, at the time of his death, belonged to the defendant, may be set off in the same manner as if the action was by the deceased. When a set-off or balance is due the defendant, the judgment against plaintiff shall be in the same form and have the same effect as if the suit had been originally brought by defendant. In actions against executors or administrators in their representative capacity, the defendants may set off 1 Grew V. Burditt, 9 Pick. 265. " Bigelow V. Folger, 2 Met. 256; Morrison v. Jewell, 34 Me. 146, 147, 148 ; Boardman v. Smith, 4 Pick. 212, 215; Phelps v. Kice, 10 Met. 128. 8 Supra, § 657; Adams v. Butts, 16 Pick. 343. * Jones V. Carpenter, 9 Met. 510. limitations; set-off. 669 demands belonging to the testators or intestates, just as the deceased might. In neither case shall any demand due to or from the representatives in their own right be set off.^ Under the statutes of Massachusetts, the demand which is made the subject of a setoff may be barred by the special statute of limitation of actions against executors and administrators, but the limitation is to be applied as if an action had been brought on the demand at the same time as the action in which it is set off. Therefore, where executors brought suit on a promissory note payable to the deceased, and the maker put in a set-off, it was held that although the declaration in set-off was not filed till after the period had elapsed during which actions might be brought against executors or adminis- trators, the set-off was not thereby barred, since the statute of limitations was to be applied as of the time when the original action was brought.^ The same principle, that set-off can only take ^lace between debts due in the same capacity, applies in equity as well as at law. Therefore a debt due from an executor cannot be set off against a debt due to the testator. Accordingly, where the plaintiff was residuary legatee and surviving exe- cutrix of her husband, to whom A and a bankrupt had given a joint bond, the other obligor being dead, and the plaintiff was indebted upon her private account to the bank- rupt. Lord Hardwicke refused an injunction to a suit upon the bond, saying that the debts were in different rights, and that there was no mutual credit.^ But in equity the real beneficial interest will be regarded, and not the nominal ownership.* In the same way, when a judgment has been rendered in favor of a legatee in a suit in the name of a judge of probate on a probate bond, in which case a hearing 1 Mass. Pub. Sts. c. 168, §§ 12-15. 2 Colt V. Cone, 107 Mass. 285; Stone v. Heath, 135 Mass. 558. « Bishop V. Church, 3 Atk. 691. 4 Jones V. Mossop, 3 Hare, 568; Wms. Ex'rs, 1878, 1879. 570 LAW OP EXECUTORS AND ADMINISTBATOES. in equity is held to ascertain the amount due, or the judg- ment on the bond, an executor may have a judgment in his favor on a promissory note payable by the legatee, off set on the judgment on the bond, since the suit on the bond is really in right of the legatee, and the judge of probate is only a nominal party.^ And it seems that in Massachusetts, under the statutes, the actual beneficial interest in the claim is at law, as well as in equity, the point in question, the statute providing for the set-off of claims belonging to the estate. Thus where, in a suit against an administrator, he attempted to set off a note payable to the deceased, but sold by him during his life to the administrator, but not indorsed by him, it was held that the set-off could not be maintained, since the note really belonged to the administrator, and not to the estate, and by indorsing it as administrator to himself he could at any time complete the formal title in himself.^ 1 BaiTett V. Barrett, 8 Pick. 341. == Stiokney v. Clement, 7 Gray, 170. COSTS. 671 CHAPTER XXIX. STATUTES AS TO COSTS IN VARIOUS STATES. § 743. Rule as to Costs in England. § 746. Statutes in New Hampshire, New 744. Statutes in California, Illinois, Jersey, New York. Indiana. 747. Statutes in Ohio, Rhode Island, 745. Statutes in Maine, Maryland, Vermont, Wisconsin. Massachusetts, Michigan. . § 743. Costa in England. — The subject of costs in pro- ceedings by and against executors and administrators is one that is generally regulated in the United States by statute. In England, in the early practice, an executor or administra- tor might recover costs if he was successful in a suit brought by him ; but if the decision in such a suit was against him, he was not liable for costs ; but now he is by statute liable as if he were suing in his own name.^ In actions against an executor or administrator in England, if he is successful, he is entitled to his costs ; if the judgment is against him, he is liable to costs as an ordinary defendant.^ In equity the subject of costs is in the discretion of the court. Generally speaking, in a suit against an executor or administrator, the unsuccessful party will have to bear the costs of the proceed- ings.^ In general administration suits, which have been before alluded to, the costs of the personal representatives are gen- erally provided for as between attorney and client, and are a first charge on the estate, unless the suit was occasioned by the negligence or misconduct of the executor or adminis- trator, in which case he will be deprived of his costs. And if he has been guilty of fraud or neglect of duty in man- 1 St. 3 & 4 Wm. rV. c. 42, § 31; Wms. Ex'rs, 1895. a Wms. Ex'rs, 1978, 1979. « Wms. Ex'rs, 2034. 572 LAW OP EXECUTORS AND ADMINISTRATORS. aging the estate, he will be required to pay the costs of the suit.^ § 744. statutes as to Costs. California, lUinois, Indiana. — In the United States, statutes regulate the subject in most states. Following are the statutes in many of the United States : — California? When it is not otherwise prescribed in this title, the superior court or the supreme court on appeal may, in its discretion, order costs to be paid by any party to the proceedings, or out of the assets of the estate as justice may require. Executions for the costs may issue out of the supe- rior court. Illinois? Upon the trial of a cause of action against an estate, 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 cost of such proceeding. Provided, that when defence is made the court may, if it shall deem just, order the whole or some part of the costs occasioned by such defence to be paid out of the estate. Indiana.^ Every executor or administrator shall have full power to maintain any suit in any court of competent juris- diction, in his name as such executor or administrator, for any demand of whatever nature due the decedent in his life- time, for the recovery of possession of any property of the estate, and for trespass or waste committed on the estate of the decedent in his lifetime ; but he shall not be liable, in his individual capacity, for any costs in such suit, and shall have power at his option to examine the opposite party under oath, touching such demand ; but evidence thus obtained shall not afterward be used in any prosecution against such party. § 745. Maine, Maryland, Massachusetts, Michigan. — Maine? 1 Wms. Ex'rs, 2035, 2036. ^ Code Civ. Proc. § 1720. 8 Ann. Sts. c. 3, f 63. < Kev. Sts. § 2291. 6 Rev. Stat. c. 87, § 2. COSTS. 673 Executions foi* costs run against the goods and estate, and, for want thereof, against the bodies of executors and administra- tors in actions commenced by or against them, and in actions commenced by or against the deceased in which they have appeared, for costs that accrued after they assumed the pros- ecution or defence, to be allowed to them in their adminis- tration account, unless the judge of probate decides that the suit was prosecuted or defended without reasonable cause. In all contested cases ^ in the original or appellate court of probate, costs may be allowed to either party, to be paid by the other ; or to either or both parties, to be paid out of the estate in controversy, as justice requires ; and executions may be issued therefor as in courts of common law. Maryland? Executors and administrators shall have full power to commence and prosecute any personal action what- ever, at law or in equity, which the testator or intestate might have commenced and prosecuted, except actions of slander and actions for injury done to the person ; and they shall be liable to be sued in any court of law or equity in any action (except as aforesaid) which might have been maintained against the deceased ; and they shall be entitled to and an- swerable for costs in the same manner as the deceased would have been, and shall be allowed for the same in their ac- counts, if the court awarding costs against them shall certify that there were probable grounds for instituting, prosecuting, or defending, the action in which a judgment or decree shall have been given against them. Massachusetts. When a judgment for costs is rendered against an executor or administrator in an action commenced by or against him, or in an action commenced by or against the testator or intestate wherein the executor or administra- tor has appeared and taken upon himself the prosecution or defence, he shall be personally liable for costs. Costs so paid by him shall be allowed in the probate accounts, unless the 1 Key. Sts. c. 63, § 30. » Key. Code, Art. 50, § 146. 574 LAW OP EXECUTORS AND ADMINISTRATORS, probate court decides that the suit was prosecuted or defended without reasonable cause.^ But not unless they have been actually paid by him.^ When an executor is nonsuited or defaulted without having taken upon himself the prosecution or defence of the action, he shall not be personally liable for costs in the action ; but the estate of the deceased in his hands shall be liable for the costs, as well as for the debt or damages, if any are recovered.^ . In proceedings in the probate court, costs and expenses in the discretion of the court may be awarded to either party to be paid by the other, or to either or both parties to be paid out of the estate, which is the subject of the controversy, as justice and equity may require;* and the general rule is to order no costs to either party .^ In equity, costs are in the discretion of the court.® When a will is so ambiguous as to make it necessary for the executor to bring a bill in equity for the construction thereof, the costs are to be paid out of the general assetsJ And this is the practice in most suits brought to ascertain the proper ad- ministration of the estate.^ Michigan? When costs in any case are allowed against an executor or administrator, execution shall not issue against the estate of the deceased in his hands therefor, but shall be awarded against him as for his own debt; and the amount paid by him shall be allowed in his administration account, unless it shall appear that the suit or proceeding in which the 1 Mass. Pub. Sts. c. 166, §§ 6, 9; Hardy v. Call, 16 Mass. 530. 2 Thacher v. Dunham, 5 Gray, 26. « Mass. Pub. Sts. c. 165, § 11. * Mass. Pub. Sts. c. 156, § 35; St. 1884, c. 131. « Chapin v. Miner, 112 Mass. 269. » Mass. Pub. Sts. c. 198, § 17. ' Deane v. Colored Women's Home, 111 Mass. 132. 8 Wilcox V. Wilcox, 13 Allen, 252; Amory v. Green, id. 413; Bigelow V. Morong, 103 Mass. 287. » Ann. Sts. § 5961. COSTS. 575 cost shall be taxed shall have been prosecuted or resisted ■without just cause. § 746. New Hampshire, New Jersey, New York. — New Sampshire^ Costs shall follow the event of every action or petition, unless otherwise directed by law or by the court. In all actions or petitions in the Supreme Court, costs may, on motion and good cause shown, be limited, allowed, and such security therefor ordered, as the court may deem just. Writs of attachment 2 and execution against administrators, where the cause of action existed against the deceased, shall run only against the goods or estate of the deceased, and the administrator shall not be arrested, or his estate attached, levied upon, in such action. Upon return of " no goods " or " waste," made by the sheriff on such execution, an execution may be awarded on scire facias against the goods, estate, and person of the administrator as for his own debt to the amount of such waste, if it can be ascertained; otherwise for the whole debt. New Jersey? In all litigated suits in the orphans' court, the court shall adjudge and direct which party shall pay the costs and expenses of such litigation, and shall have the power to apportion and determine the costs and expenses to be paid by either party. New YorTc.^ Where a judgment for a sum of money only, is rendered against an executor or administrator in an action brought against him in his representative capacity, costs shall not be awarded against him except as prescribed in the next section. Where it appears that the plaintiff's demand was presented within the time limited by a notice, published as prescribed by law requiring creditors to present their claims, and that the payment thereof was unreasonably resisted or neglected, or that the defendant refused to refer the claim as 1 Gen. Laws, c. 233, §§ 1, 2. « Ch. 198, §§ 12, 13. » Rev. Sts. Orphans' Court, § 168. * Code Civ. Proc. §§ 1835, 1836, 2561. See also §§ 2557, 2558. 576 LAW OF EXECUTORS AND ADMINISTRATORS. prescribed by law, the court may award costs against the executor or administrator, to be collected either out of his individual property or out of the property of the decedent as the court directs, having reference to the facts which appeared upon the trial. Where the action is brought in the supreme court, or in a superior city court, the facts must be certified by the judge or referee, before whom the trial took place. In a case other than certain ones specified in a preceding section, the surrogate, upon rendering a decree may, in his discretion, fix such a sum to be allowed as costs, in addition to the disbursements, as he deems reasonable, not exceeding where there has not been a contest, twenty-five dollars, or where there has been a contest, seventy dollars ; and in ad- dition thereto where a trial or hearing upon the merits before the surrogate necessarily occupies more than two days, ten dollars for each additional day ; and where a motion for a new trial is made before the surrogate, if it is granted, seventy dollars ; if it is denied, forty dollars. § 747. Ohio, Rhode Island, Vermont, Wisconsin. — Ohio?- In suits for the recovery of money only, or of specific personal property against the estate, in which no provision is made herein in relation to costs, no costs shall be recovered against the executor or administrator, to be levied of his property or of the property of the deceased, unless it appear that the demand on which the action was founded was presented within one year after his giving bond for the discharge of his trust, that its payment was unreasonably resisted or neglected, or that the defendant refused to refer the same, pursuant to the preceding provisions ; in which case the court may direct such costs to be levied of the property of the defendant or of the deceased as shall be just, having reference to tlie facts that appeared on the trial. All executions against executors and administrators for debts due from the deceased shall, 1 Rev. Sts. §§ 6106, 6107. COSTS. 577 except in the cases otherwise provided for herein, run against the goods and estate of the deceased in the'ir hands; and when any execution against an executor or administrator for a debt due from the estate of the deceased is returned mi- satisfied, the creditor may bring an action, upon a suggestion of waste, against the executor or administrator; and if the defendant shall not show to the contrary, he shall be deemed guilty of waste, and shall be personally liable for the amount of such waste when it can be ascertained ; and if the amount of such waste cannot be ascertained, the said executor or administrator shall be liable for the amount due on the ori- ginal judgment,, with interest thereon from the time when it was rendered, and judgment and execution shall be awarded accordingly as for his own debt. BTiode Island?- In all appeals from any order, determina- tion, or decree of any court of probate to the supreme court, the supreme court on rendering judgment therein may award costs for or against the appellants or appellees or for neither, or may apportion the same between and among the parties, appellants, and appellees, in their discretion, according to the circumstances of the case, and as to them shall appear equi- table and just. Vermont? If the executor or administrator, after being so cited, EGglects to become a party to the suit, he shall be non- suited or defaulted, and judgment rendered against him as executor or administrator; but he shall not be personally liable for costs, but the costs shall be paid the same as the debt or damages out of the estate of the deceased. When costs are allowed against an executor or administrator, execu- tion shall not issue against the estate of the deceased in his hands, but shall be awarded against him as for his own debt. In probate matters the county court or supreme court may tax costs for the party prevailing ; or, when in the opinion 1 Pub. Sts. c. 217, § 18. 2 Rev. Laws, §§ 2145, 2156, 2280. 37 578 LAW OP EXECUTORS AND ADMINISTRATORS. of the court justice requires it, it may deny such costs, and may tax costs for either party ; and if costs are taxed against an executor or administrator, they shall be allowed to him in his administration account. Wisconsin.^ In all cases the costs of the action or of either party shall be paid as the court may direct out of the estate of the deceased or by the defendants personally, if their re- fusal to pay such legacy or their defence of the action shall appear to have been unreasonable. To follow out the details of the rules of practice arising under these statutes would be inconsistent with the limits of this work, and the reader must be referred to the various treatises on practice in the various States, and also to the preceding sections where the subject is discussed in connec- tion with the actions against executors and administrators.^ 1 Rev. Sts. § 3264. » Supra, § 697 et seq. EVIDENCE IN SUITS. 679 CHAPTER XXX. EVIDENCE IN SUITS WHERE EXECUTOR OR ADMINISTRATOR IS A PARTY. §748. Proof in Cases involving Execu- §758. Statutes and Decisions in Massa- tors or Administrators. chusetts. 749. Books of Account, Admissibility 759. Statutes and Decisions in Michi- of. gan. 750. Admissions of Deceased, or of 760. Statutes and Decisions in liTew Executor or Administrator. Hampshire. 751. Parties as Witnesses in Suits by 761. Statutes and Decisions in New or against Executors or Ad- Jersey. ministrators. 762. Statutes and Decisions in Kew 752. Statutes and Decisions in Call- York. fomia. 763. Statutes and Decisions in Ohio. 753. Statutes and Decisions in Con- 764. Statutes and Decisions in Penn- necticut. sylvania. 754. Statutes and Decisions in lUi- 765. Statutes and Decisions in Rhode nois. Island. 755. Statutes and Decisionsi in In- 766. Statutes and Decisions in Ver- diana. mont. 756. Statutes and Decisions in Maine. 767. Statutes and Decisions in Wis- 757. Statutes and Decisions in Mary- consin. land. § 748. Proof in Cases involving Executors or Administrators. — Several points of evidence are of frequent recurrence in cases in which executors or administrators are parties, and will be shortly examined. They relate principally to the mode of proof of facts which lay especially in the knowledge of the deceased, and of which the executor or administrator has no personal knowledge ; and it will be seen that the gen- eral principle which underlies the rules upon this subject, is, that there should be an equality in the allowance of such tes- timony, and that when the facts are known only to two per- sons, one of whom is dead, the other should not, except in special instances, be allowed to testify as to those facts on 680 LAW OP EXECUTOBS AND ADMINISTKATOES. account of the danger of misrepresentation.. This principle has been embodied in statutes in many States, while in a few it is not recognized, and the right of cross-examination is relied upon to prevent misstatement.^ § 749. Books of Account, Admissibility of. — It is the gen- eral rule of evidence at the present day, — although an ex- ception to the principle that a party cannot make his own declarations evidence for himself, — that his books of account, if they are kept in the usual and ordinary course of business, and the entries in them are Contemporaneous with the trans- actions which they purport to record, and are original entries, are admissible in evidence to prove those transactions, if sup- ported by the oath of the party making the entries that the books and entries are as indicated above and are true records of his business, although he may have no personal recollec- tion of the truth of items specially noted.^ This rule has been extended to cases where the party who made the entries is dead, and the suit is brought by or against his executor or administrator. In such a case, the books of account of the deceased are admissible in evidence to prove items of work done or goods delivered, when they are sup- ported by the oath of the executor or administrator that they came to his hands as the genuine and only books of account of the deceased, that to the best of his knowledge and belief the entries are original and contemporaneous with the fact, and the debt is unpaid, and that the entries are in the hand- writing of the deceased ; ^ but the books must appear, on all the evidence, to have been the regular account books, kept in the usual course of business, and the entries made at or near the time of the transactions to be proved.* The same rule also applies as to the account books of the other party to 1 See infra, §§ 751-767. ' 1 Greenl. Evid. §§ 117-120. 8 Pratt V. White, 132 Mass. 478; McLellan v. Crofton, 6 Greenl. 307; Prince v. Smith, 4 Mass. 455; Odell w. Culbert, 9 W. 8e S. 66. * Davis V. Sanford,. 9 Allen, 216. EVIDENCE IN SUITS. 681 the suit. They may be given in evidence supported by his oath ; and, as will be seen later,' they are generally held to be com- petent, even where the statutes provide that if one party to a transaction is dead, and the suit is by or against his executor or administrator, the surviving party is disqualified from testi- fying in the cause as to that transaction with the deceased.^ § 750. Admissions of Deceased, or of Executor or Adminis- trator. — The executor or administrator is bound by the ad- missions of the deceased in regard to all property, in the ownership of which he is in privity with the deceased, on the principle that when a party by his admissions has qualified his own right, and another succeeds to his claim as executor or administrator, he succeeds only to the right as thus qualified at the time when his title commenced.^ And the executor or administrator may, by his own admissions, bind the estate which he represents, but only after he has become fully clothed with the trust; and therefore admissions made by him before he has been appointed and qualified as executor or administrator, made before the beginning of the suit, can- not be received against him as the representative of the heirs, devisees, and creditors,* although they may bind him person- ally. Whether the case of an executor differs in this regard from that of an administrator does not seem to have been set- tled in the United States. In England, as has been already seen,^ the executor is considered to have many of the powers of his ofiice vested in him by the nomination in the will, and the confirmation of the nomination by the probate court merely gives him formal authority to sue or be sued in his repre- sentative capacity. In this view of his position, he undoubt^ ediy has such an interest in and title to the estate that he could 1 Infra, §§ 751-767. « Dexter «. Booth, 2 Allen, 561. » 1 Greenl. Evid. § 189 ; Smith v. Smith, 3 Bing. N. C. 29 ; Irat v. Finch, 1 Taunt. 141 ; Platner v. Plainer, 78 N. Y. 90; Fellows v. Smith, 130 Mass. 378. . * 1 Gieenl. Evid. § 179. ^ Supra, §§ 614-618. 582 LAW OF EXECUTORS AND ADMINISTEATOES. bind it by his admissions ; but this view does not seem to be generally adopted in the United States, and he is in most States not considered to be fully clothed with the duties and powers of his ofiBce till he has been appointed by the probate court and has qualified.^ If an executor or administrator mates, in his representative capacity, an admission in a case by pleadings or otherwise, he is bound in his representative capacity by that admission in another case.^ § 751. Parties as Witnesses in Suits by or against Executors or Administrators. — In many States, in which as a rule parties to a case, or those interested in its event, are made by statute competent witnesses in the case, an important exception is made in case of suits by or against executors or administra- tors. These statutes are generally in one of two forms. In one, it is provided that, in actions by or against executors or administrators in which judgment may be given either for or against them, neither party shall be allowed to testify against the other as to any transaction with or statement by the testator or intestate, unless called to testify thereto by the opposite party, or required to testify thereto by the court.* This form of the rule makes the party incompetent only iOr certain purposes. A more general form of the rule is, that no party to a suit, or person directly interested in the event, shall be allowed to testify voluntarily in his own behalf when any adverse party sues or defends as executor or administra- tor of any deceased person.* This form of the rule makes the party wholly incompetent ; but it is generally narrowed either by special exceptions admitting a party to testify as to other facts than those known only to him and the deceased, or by decisions to the same effect.^ Thus when one party is an executor, the other is not prevented from testifying to transactions or conversations with an agent of the deceased ; ' 1 Supra, § 616. " Phillips v. Middlesex, 127 Mass. 262. » U. S. Rev. Sts. § 858. * See 111. Rev. Sts. c. 51. « Besson v. Cox, 35 N. J. Eq. 87. « Pratt v. Elkins, 80 N. Y, 198. EVIDENCE IN SUITS. 683 but the principal cannot testify to deny the authority of the agent.^ In most States in which such incompetency exists, it is generally provided that if the executor or administrator voluntarily testifies as to such transactions or conversations himself, he thereby waives the bar, and renders the other party competent to testify to such transactions or conversa- tions.2 And it is generally provided, as has been already seen, and will be examined further in detail in considering the statutes of the various States, that the account books of either party may be given in evidence in the same manner as is allowed when both parties are living.* § 752. statutes and Decisions in California. — Tlie statutes and decisions relating to this point in many States will be considered in detail, as there are numerous differences in the various enactments which renders it impracticable to classify them, although the general principles are similar, and the main object of them all is the same, — that is, to preserve an equality in testifying between the parties, so that one may not testify as to facts which the other has no knowledge of.* The statutory provision upon this point in California is as follows : ^ Parties, or assignors of parties, to an action or proceeding, or persons in whose behalf an action or proceed- ing is prosecuted against an executor or administrator upon a claim or demand against the estate of a deceased person, cannot be witnesses as to any matter of fact occurring before the death of such deceased person. This statute does not apply to an action or proceeding by an executor or administrator.^ Therefore, when an executor 1 Woodrow V. Mansfield, 106 Mass. 112. 2 Potts V. Mayer, 86 N. Y. 302 ; Clawson v. Riley, 34 N. J. Eq. 348 ; Williamson v. State, 59 Miss. 235. » Supra, § 749. * Johnson v. Heald, 38 Md. 352, 368. B Code Civ. Proc. § 1880 (3). « McGregor v. Donelly, 67 Cal, 149; Sedgwick v. Sedgwick, 52 Cal. 336. 584 LAW OF EXECUTORS AND ADMINISTKATOES. or administrator brings an action against one wlio is wrong- fully withholding a portion of the estate, the executor or ad- ministrator may testify, although the other may not ; ^ and the executor or administrator may also, under the statutes of that State, call an adverse party to testify in behalf of the estate, although the latter could not testify of his own motion.^ The statute excludes nominal parties, as well as those actually interested in the suit.^ It does not exclude the account books of the adverse party when they are otherwise admissible in the action.* § 753. statute in Connecticut. — In Connecticut, it is pro- vided by statute ^ that, in actions by or against the represen- tatives of deceased persons, the entries, memoranda, and declarations of the deceased, relevant to the matter in issue, may be received as evidence; and in actions by or against the representatives of deceased persons, in which any trastee or receiver is an adverse party, the testimony of the deceased, relevant to the matter in issue, given at his examination, upon the application of said trustee or receiver, shall be re- ceived in evidence. But in actions against the representatives of deceased persons, no acknowledgment or promise shall be sufficient evidence of a new or continuing contract to take the case out of the statute of limitations, unless the same be con- tained in some writing made or signed by the party to be charged thereby ; but this provision shall not alter the effect of any payment of principal or interest. § 754. statutes and Decisions in Illinois. — In Illinois, it is provided by statute * that no party to any civil action, suit, or proceeding, or person directly interested in the event thereof, shall be allowed to testify therein of his own motion, or in 1 McGregor v. Donelly, 67 Cal. 149. 2 Chase v. Evoy, 51 Cal. 618. » Blood V. Fairbanks, 50 Cal. 420. *. Roche V. Ware, 71 Cal. 375. b Gen. Sts. § 1094. « Ann. Sts. c. 51, 11 2 & 3. EVIDENCE IN SUITS, 585 his own behalf, by virtue of the foregoing section, allowing parties to testify when any adverse party sues or defends ais the trustee or conservator of any idiot, habitual drunkard, lunatic, or distracted person, or as the executor, administrar tor, heir, legatee, or devisee of any deceased person, or as guardian or trustee of any such heir, legatee, or devisee, unless when called as a witness by such adverse party so suing or defending, and also except in the following cases, namely : — First. In any such action, suit, or proceeding, a party or interested person may testify to facts occurring after the death of such deceased person, or after the ward, heir, lega- tee, or devisee shall have attained his or her majority. Second. When, in such action, suit, or proceeding, any agent of any deceased person shall, in behalf of any person or persons suing or being sued, in either of the capacities above named, testify to any conversation or transaction be- tween such agent and the opposite party or party in interest, such opposite party or party in interest may testify concern- ing the same conversation or transaction. Third. Where, in any such action, suit, or proceeding, any such party suing or defending as aforesaid, or any person having a direct interest in the event of such action, suit, or proceeding, shall testify in behalf of such party so suing or defending, to any conversation or transaction with the oppo- site party or party in interest, then such opposite party or party in interest shall also be permitted to testify as to the same conversation or transaction. Fourth. Where, in any such action, suit, or proceeding, any witness, not a party to the record, or not a party in in- terest, or not an agent of such deceased person, shall, in behalf of any party to such action, suit, or proceeding, testify to any conversation or admission by any adverse party or party in interest occurring before the death and in the ab- sence of such deceased person, such adverse party or party 586 LAW OP EXECUTORS AND ADMINISTRATORS. in interest may also testify as to the same admission or conversation. Fifth. When, in any such action, suit, or proceeding, the deposition of such deceased person shall be read in evidence at the trial, any adverse party or party in interest may testify as to all matters and things testified to in such deposition by such deceased person, and not excluded for irrelevancy or incompetency. When, in any civil action, suit, or proceeding, the claim or defence is founded on a book account, any party or inter- ested person may testify to his account book and the items therein contained ; that the same is a book of original entries, and that the entries therein were made by himself, and are true and just; or that the same were made by a deceased person, or by a disinterested person or non-resident of the State at the time of the trial, and were made by such de- ceased or non-resident person in the usual course of trade, and of his duty or employment to the party so testifying; and thereupon the said account book and entries shall be ad- mitted as evidence in the case. This statute extends to persons interested in the result of the suit.^ Consequently, in an action upon a promissory note, signed by a partnership against the executrix of the deceased partner, the other partners are not competent witnesses in the case, being directly interested in the result of the suit.^ If an administrator presents a personal claim against the estate he represents, and another administrator is appointed to de- fend that special claim, it is held that an heir is not incom- petent, since the action is not by the administrator in his personal capacity, but personally;^ but it might be queried whether the special administrator who defends the action is riot such an administrator as is within the scope of the stat- 1 Richardson v. Hadsall, 106 HI. 476; Bolster v, Byrne, 72 111. 466. 2 Hurlbut V. Meeker, 104 111. 542. « Douglas V. Fullerton, 7 111. App. 104. EVIDENCE IN SUITS. 687 ute. The wife of a party is so interested in the suit as not to be competent under tliis statute.^ The statute in this State excludes nominal parties as well as those really interested in the result of the suit.^ It does not apply to cases where the suit is brought by the administrator on a contract made with him, or cause of action accruing to him, although such con- tract or cause of action may relate to the estate. Thus where an administrator took a mortgage on account of an indebted- ness to the estate, it was held that the statute did not apply to a suit by him on the mortgage, and the other party was competent.^ If the executor puts in a letter by defendant, written to the deceased before his death, the defendant can- not testify as to the meaning of the letter, if that involves facts material to the case existing before the death of the deceased, for two reasons : first, that the letter must speak for itself; and, second, that his testimony relates to facts barred by the statute.* The statute covers a case where, an executor having died, the administrator de bonis non brings suit on transactions between the defendant and the executor regarding the estate.^ The phrase " shall not be allowed to testify in his own mo- tion or on his own behalf " does not allow one party, plaintiff or defendant, to call a co-plaintiff or co-defendant, but al- lows only a call from the opposing party representing the deceased.^ In an action by an executor upon a promissory note made to testator, the principal maker is not a competent witness for the surety, being interested in the action ; "^ but in an ac- 1 Warrick v. Hull, 102 111. 280; Stevens v. Hay, 61 lU. 399; Crane v. Crane, 81 111. 166. 2 Lowman v. Aubrey, 72 HI. 619. ' Roberts v. Pierce, 79 HI. 378. * Lyon V. Lyon, 3 lU. App. 434. ' Redden v. Inman, 6 111. App. 55. « Whitmer v. Rucker, 71 111. 410. ' Langley v. Dodsworth, 81 111. 86. 688 LAW OP EXECUTOfiS AND ADMINISTRATORS. tion against the estate of a deceased surety, the principal maker is competent, for his interest is equally Mlanced, since he ■will have to pay the note either to the payee or to the estate of the surety.^ It is to be noticed that this act and its exceptions relate entirely to witnesses incompetent before it^ passage, and therefore, if a witness was competent before the act was passed, he remains so ; and it is held that, since in equity one co-defendant might testify in behalf of another if the former had no interest in the point testified to, so he can since the statute.^ The statute applies to actions by execu- tors or administrators for damages for the killing of the de- ceased, although such damages are not strictly assets of the estate, since they go to the next of kin ; but the suit falls under the letter of the statute.* The exception to the statute allows testimony as to facts occurring after the death of the deceased.* The executor or administrator is competent to tes- tify in his own behalf,^ and may call others interested in the suit to testify for him.^ If an administrator testifies to an admission by the defendant in tiie life of the deceased, the defendant may, under the third exception, testify as to such admission.^ § 755. statutes and Decisions in Indiana. — In Indiana, the statutory provision * is that in suits or proceedings in which an executor or administrator is a party, involving matters which occurred during the lifetime of the decedent, where a judgment or allowance may be made or rendered for or against the estate represented by such executor or adminis- trator, any person who is a necessary party to the issue or record, whose interest is adverse to such estate, shall not be 1 Sconce v. Henderson, 102 111. 376. 2 Bradshaw v. Combs, 102 111. 428.. 8 Forbes v. Snyder, 94 111. 374. * Strauber v. Mohler, 80 HI. 21 ; Branger v. Lucy, 82 HI. 9. 6 Steele v. Clark, 77 111. 471. 6 Freeman v. Freeman, 62 111. 189 ; Remann u. Buckmaster, 85 111. 403. » Penn v. Oglesby, 89 111. 110. » Rev. Sts. § 498. EVIDENCE m SUITS. 589" a competent witness as to such matters against such estate : provided, however, that in cases where a deposition of such decedent has been taken, or he has previously testified as to the matter, and his testimony or deposition Can be used as evidence for such executor or administrator, such adverse party shall be a competent witness for himself, but only as to any matters embraced in such deposition or testimony. In this State, an early statute excluded the executor or administrator as well as the other party ; ^ but if he testified, and no objection was made or motion to strike out his testi- mony, the objection was waived, and the testimony became competent ; ^ he was also competent to testify as to facts oc- curring after the death of the deceased ; ^ but now the exclu-, sion is limited to one whose interest is adverse to the estate.* The term " party " means that the person must be substan- tially interested in the result of the suit, and does not include a nominal party to the record.^ The contract or matter in- volved must be one in which the deceased had some interest,, and not one transacted entirely between third parties.^ § 756. statutes and Decisions in Maine. — In Maine, it is provided by statute ■* that no person is excused or excluded from testifying in any civil suit or proceeding at law, or in equity, by reason of his interest in the event thereof as party or otherwise, except as hereinafter provided ; but such inter- est may be shown to affect his credibility, and the husband or wife of either party may be a witness. The sections as to competency of parties do not apply to cases where, at the time of taking testimony, or at the time of trial, the party prosecuting, or the party 1 Ginn v. Collins, 43 Ind. 271 ; Helms v. Kearns, 40 Ind. 124. . « Denbo v. Wright, 53 Ind. 226. * Goodwin v. Goodwin, 48 Ind. 584. * Louisville, New Alb. & Chic Ky. Co. v. Thompson, 107 Ind. 444. * Scherer v. Ingerman, 110 Ind. 442; Spencer v. Robbins, 106 Ind. 580. * Taylor v. Duesterberg, 109 Ind. 170. 1 Rev. Sts. c. 82, §§ 93,;9a. 590 LAW OP EXECUTORS AND ADMINISTBATORS. or any one of them, is an executor or administrator, or is made a party as heir of a deceased party, except in the fol- lowing cases : — First. The deposition of a party, or his testimony given at a former trial, may be used at any trial after his death, if the opposite party is then alive ; and in that case the latter may also testify. Second. In all cases in which an executor, administrator, or other legal representative of a deceased person is a party, such party may testify to any facts admissible upon the rules of evidence, happening before the death of such person ; and. when such person so testifies, the adverse party is neither excluded nor excused from testifying in reference to such facts, and any such representative party, or heir of a deceased party, may testify to any fact admissible upon general rules' of evidence, happening after the decease of the testator, intes- tate, or ancestor; and in reference to such matters the adverse party may testify. Third. If the representative party is nominal only, both parties may be witnesses; if the adverse party is nominal only, and had parted with his interest, if any, during the life- time of the representative party's testator or intestate, he is not excluded from testifying if called by either party ; and in an action against an executor or administrator, if the plaintiff is nominal only, or having had an interest, disposed of it in the lifetime of the defendant's testator or intestate, neither party to the record is excused or excluded from testifying. Fourth. In an action by or against an executor, adminis- trator, or other legal representative of a deceased person, in which his account books or other memoranda are used as evi- dence on either side, the other party may testify in relation thereto. Fifth. In actions where an executor, administrator, or other legal representative is a party, and the opposite party is an heir of the deceased, said heir may testify when any EVIDENCE IN SUITS. 591 other heir of the deceased testifies at the instance of such executor, administrator, or other legal representative. Under this statute the rule is that the executor or adminis- trator may offer to testify himself, and if he does so, he makes the other party competent to testify.^ The rule includes the executors of one who is in prison under sentence of death, who is considered in that State as dead, and his estate is ad- ministered as such.2 There is also in that State, as noted above, an exception to this general incompetency, when the executor or administrator is a nominal party ; but he is not such a nominal party when he brings suit in his own name on a note payable to the deceased.^ If the question in suit is whether certain articles belonged to the estate or not, both parties are competent witnesses, the case not coming under the rule.* If the surviving party to a transaction puts in evi- dence a memorandum in writing by the deceased, he must leave it to speak for itself, or else explain it by disinterested witnesses. He cannot testify as to its meaning himself ; ^ but if such memoranda, for example, account books, are in- troduced by the executor or administrator, the other party may testify as to them.^ The rule does not cover persons merely interested in the suit, but only parties to the record.^ It prevents an executor or administrator from testifying in his own behalf to support a private claim of his own against the estate.* The rule, also, does not cover facts occurring after the death of the deceased.^ 1 Kelton V. Hill, 59 Me. 259; Brooks v. Goss, 61 Me. 307 ; Haskell v. Hervey, 74 Me. 197. * Knight V. Brown, 47 Me. 468. * Wing V. Andrews, 59 Me. 505. * Beach v. Pennell, 50 Me. 587. ' Berry v. Stevens, 69 Me. 290. * Hubbard v. Johnson, 77 Me. 139. ' Rawson v. Knight, 73 Me. 340; Alden v. Goddard, lb. 346; Haskell ». Hervey, 74 Me. 197. 8 Preble v. Preble, 73 Me. 362. » Swasey v. Ames, 79 Me. 483. 692 LAW OF EXECUTORS AND ADMINISTEATORS. § 757. Statutea and Decisions in Maryland. — In Maryland, the statute ^ enacts that when an original party to a contract or cause of action is dead, or shown to be lunatic or insane, or when an executor or administrator is a party to the suit, action, or other proceedings, either party may be called as a witness by his opponent, but shall not be admitted to testify on his own offer, or upon the call of his co-plaintiff or co- defendant, otherwise than now by law allowed, unless a nom- inal party merely, except in case where the party to such suit, action, or other proceeding has died, or become lunatic or insane after having testified in his own behalf ; then the opposite party shall be a competent witness on his own be- half in such case, notwithstanding the executor or adminis- trator of such deceased person, or committee of such lunatic or insane person, has become a party to such suit, action, or other proceeding, but shall only testify as to matters upon which such deceased lunatic or insane person was examined and testified to : provided, that when an executor or adminis- trator, guardian or committee of a lunatic or insane person is a party to the suit, action, or other proceeding, when the cause of action has arisen on a contract made with such ex- ecutor, administrator, guardian, or committee, or out of trans- actions between such executor, administrator, guardian, or committee, and the other party, or when the executor, ad- ministrator, guardian, or committee testifies as to any con- versation had with the other party, either party may be examined as a witness as provided for in the other sections of this article; and provided, further, that it shall not be competent for any party to the cause, who has been examined therein as a witness, to corroborate his testimony, when im- peached, by proof of his own declaration or statements made to third persons, out of the presence and hearing of the ad- verse party. Under this statute it is held that a prochein ami is not a 1 Kev. Code, Art. 70, § 2. EVIDENCE IN SUITS. 593 party to the suit.^ The statute excludes the executor or ad- ministrator from testifying on his own offer as well as the surviving party ; but if the executor takes the stand and tes- tifies, and the other party objects to sonae of his testimony and not to other parts of it, the parts not excepted to will stand as evidence in the cause, the objection having been waived 'pro tanto ; ^ but cross-examining before the auditor in an equity proceeding does not prevent taking the objection at the hearing in the equity court.^ The design of the statute in admitting parties to suits to testify at their own instance has been said, in this State, to be to provide that they should do so on terms of perfect equality as to knowledge, or means of knowledge, of the subject-matter in controversy about which they were to speak, and not to allow one living to tes- tify to his version of the transaction, when he could not be confronted by the other or adverse party with whom the actual transaction took place, in consequence of the death or insanity of the latter ; * and the general provisions removing the incompetency of parties should not be further restricted than this reason for the exception requires. When, therefore, a contract is made with a partnership composed of a great number of persons, some of whom are active in the business and others not, or some of them reside abroad and have no personal knowledge of the transactions of the firm, — in such case it would neither comport with the design of the Legisla- ture, nor the reason of the thing, to exclude the parties to the actual transaction simply because one of the non-active or non- resident technical co-contractors should happen to die after the contract was made.^ In proceedings for probate, before the will has been pro- 1 Trahern v. Colburn, 63 Md. 104. 2 Dilley ». Love, 61 Md. 607. » Dodge V. Stanhope, 55 Md. 121. * Johnson v. Heald, 33 Md. 352, 368. ^ Hardy v, Chesapeake Bank, 51 Md. 596. 88 594 LAW OP ESECDTOES AND ADMINI8TEAT0ES. bated, the executor nominated in the will is not under the statute, but may testify in his own behalf ; ^ but in a proceed- ing by an executor or administrator against a third person for concealing part of the intestate's property, the defendant is under the statute and incompetent.^ So in a controversy between an alleged wife and the administrator of her alleged deceased husband, in regard to her right to a distributive share of the estate, she is incompetent to testify as to the mar- riage ; 3 but in a contest between the wife and nephews and nieces as to the distribution of the estate, they are competent witnesses to testify as to their legitimacy.* In an action on a joint note, one of the makers being dead, it is not competent for the payee and plaintiff, in order to remove the statute of limitations, to testify to a payment made by the deceased maker, and endorsed on the note in his own handwriting.^ § 758. statutes and Decisions in Massachusetts. — At the present time in Massachusetts, there is no statutory provision affecting the competency of witnesses or the admissibility of testimony in cases where an executor or administrator is a party .^ Until recently, however, there was a statute regulat- ing this subject, and the decisions under it are given, being applicable to similar statutes. The statute referred to was that where one of the oi-iginal parties to the contract or cause of action is dead, the other party shall not be admitted to testify in his own favor ; and where an executor or administrator is a party, the other party shall not be admitted to testify in his own favor, unless the contract in issue was originally made with a person who is living and competent to testify .'' 1 Schull V. Murray, 32 Md. 9. 2 Cannon v. Crook, 32 Md. 482. * Denison o. Denison, 35 Md. 361. See Kedgrave v. Redgrave, 38 Md. 93. * Jones V. Jones, 36 Md. 447. « Miller v. Motter, 35 Md. 428. « Mass. Pub. Sts. c. 169, § 18. ' Gen. Sts. o. 131, § 14. EVIDENCE IN SUITS. 595 Under this statute the following rules were decided : when the cause of action is a contract of sale made through an agent of one of the parties, the other party having died and his ex- ecutor being made a party, the alleged principal cannot be a witness in his own behalf to deny the authority of the agent.^ An executor is not competent to testify in his own behalf to an item in his accounts consisting of a claim of his own against the deceased for services rendered during her life, when the question is the allowance of those accounts ; ^ but where the question is the correctness of his accounts, and he testifies without objection that a debt due by him to the testatrix had been paid by him to her before her death, it is too late to raise objection to the competency of the witness on an appeal.^ The ■widow of the deceased may testify in behalf of the executor as to conversations between the deceased and the defendant, and the defendant is not competent to testify in rebuttal of her testimony.* The rule does not exclude the party from intro- ducing his books of account, on the principle before stated, with his suppletory oath, although the other party is an ex- ecutor or administrator .5 The rule also affects only parties to the record, and therefore, in a hearing on an application by an administratrix for leave to sell real estate for the payment of debts, it was held that a creditor of the estate was a com- petent witness to prove his own debt.® The rule as to the competency of husband and wife as wit- nesses under this statute, and that governing the competency of husband and wife for or against each other, is that neither husband nor wife is competent to testify as to private conver- sations with each other ; and this incompetency extends as well after the coverture is ended as before, and therefore the 1 Woodrow V. Mansfield, 106 Mass. 112. 2 Ela V. Edwards, 97 Mass. 318. ' (Jranger v. Baasett, 98 Mass. 462. * Robinson v. Talmadge, 97 Mass. 171. B Dexter v. Booth, 2 Allen, 561. • Chamberlin ». Chamberlin, 4 Allen, 184. 596 LAW OP EXECUTORS AND ADMINISTRATORS. widow cannot testify as to such conversations after the death of her husband, and, vice versa, the husband cannot testify to such conversations after the death of the wife ; ^ but as to other conversations either is competent.^ And in an action by the widow against the executor in his personal capacity, for trover in taking certain property of her own, she may tes- tify in her own behalf, though it seems that if she claims the property as a gift from the husband, and this fact is put in issue, she would not be competent to testify to the gift.^ In a case where the action was by the husband being administra- tor of his wife against the executor of one who had deposited money in a savings bank in trust to pay the interest to the depositor for life, and after her death to pay the principal to the wife, it was held that the cause of action in issue and on trial was the creation of the trust, and that the husband was therefore incompetent to testify.* A further exception to this statute was made by a later statute, which provided that, whenever the contract or cause of action in issue and on trial was made or transacted with an agent, the death or insanity of his principal shall not pre- vent any party to the suit or proceeding from being a witness in the case, provided such agent shall be living and competent to testify.^ It has been held that the statute was intended to put the two parties to a suit upon terms of substantial equality in regard to the opportunity of giving testimony. In general, when parties have contracted with each other, each is supposed to have an equal knowledge of the transac- tion, and both, if living and of sound mind, are allowed to testify. But if one is precluded from testifying by death or insanity, the other is not entitled to the undue advantage of 1 Dexter v. Booth, 2 Allen, 556. ' Robinson v. Talmadge, 97 Mass. 171. * Baxter v. Knowles, 12 Allen, 114. * Ayres v. Ayres, 11 Gray, 130. « Mass. Sts. 1865, o. 207, § 1. EVIDENCE IN SUITS. 597 being a witness in his own case. Where, however, a party has contracted through an agent, if the agent is living, the death of the principal does not deprive his personal represen- tative of the testimony of the one most fully acquainted with the facts of the case, and the qther party may without injus- tice be admitted as a witness ; but the exception does not apply to an action by an agent against his principal for the services rendered by the agent. If the principal is dead, the agent cannot testify in his own behalf.^ And the rule does not in any case apply to contracts made by the executor or administrator, or torts done by or against him. As to suits on such contracts, he is a competent witness.^ § 759. statutes and Deoiaions in Michigan. — In Michigan, the statute ^ is that when a suit or proceeding is prosecuted or defended by the heirs, assigns, devisees, legatees, or per- sonal representatives of a deceased person, the opposite party, if examined as a witness on his own behalf, shall not be ad- mitted to testify at all to matters which, if true, must have been equally within the knowledge of such deceased person ; and when any suit or proceeding is prosecuted or defended by any surviving partner or partners, the opposite party, if ex- amined as a witness in his own behalf, shall not be admitted to testify at all in relation to matters which, if true, must have been equally within the knowledge of the deceased part- ner, and not within the knowledge of any one of the surviving partners. And when any suit or proceeding is prosecuted or defended by any corporation, the opposite party, if examined as a witness in his own behalf, shall not be admitted to testify at all in relation to matters which, if true, must have been equally within the knowledge of a deceased officer or agent of the corporation, and not within the knowledge of any surviv- ^ Brown ». Brightman, 11 Allen, 226. 2 Blood V. French, 9 Gray, 197; Howe v. Merrick, 11 Gray, 129; Palmer v. Kellogg, 11 Gray, 27. » Ann. Sts. § 7545. 698 LAW OP EXECUTORS AND ADMINISTRATORS. ing officer or agent of the corporation ; nor when any suit or proceeding is prosecuted or defended by the heirs, assigns, devisees, legatees, or personal representatives of a deceased person against a corporation, shall any officer or agent of any such corporation be allowed, to testify at all in relation to matters which, if true, must have been equally within the knowledge of such deceased person. This statute only applies in cases where the estate is in some way one of the parties, and the heirs, assigns, devisees, or legatees are the others. It does not apply when a will is presented for probate and the probate is contested. In such a case, the proponent of the will may testify as to an agree- ment between himself and the testator, by which the latter agreed to leave him all the property in the manner in which the will disposed of it ; ^ or a legatee may testify as to con- versations with the deceased about the will.^ It covers only parties to the record ; and as to them, only matters shown to be within the knowledge of the deceasedi^ If the represen- tative of the deceased puts into the case admissions of the other party as to facts under the statute, he so far waives the rule, and the surviving party may explain these admissions.* § 760. statutes and Decisions in New Hampshire. — In New Hampshire the statute provides as follows : ° — Neither party shall testify in a cause when the adverse party is an executor, or administrator, or an insane person, unless the said executor, administrator, or the guardian of the insane party elects to testify, except as provided in the following section. When it clearly appears to the court that injustice may be done without the testimony of the party in such case, 1 Brown v. Bell, 58 Mich. 58. 2 Schofield V. Walker, 58 Mich. 98. * Bassett v. Shephardson, 52 Mich. 3. * Smith's App. 52 Mich. 415i. 6 Gen. Laws, c. 228, §§ 16-18. EVIDENCE IN SUITS. 699 he may be allowed to testify; and the ruling of the court, admitting or rejecting his testimony, may be excepted to and revised. When either party of record is not the party in interest, and the party whose interest is represented by such party of record is an executor, administrator, or insane, the adverse party shall not testify, unless the executor, administrator, or guardian of the insane person elects to testify himself, or to offer the testimony of such party of record. This statute applies to a common law action for an account, as well as in other suits.^ The administrator or executor is the only one who can object to the other party testifying, and if he does not, or if he consents, such testimony is competent.^ The rule does not cover parties in interest, but only parties to the record, except as to the administrator or executor;^ nor does it cover suits against the executor or administrator per- sonally, as when it is brought for a tort committed by him,* nor where the executor or administrator is only a nominal party .^ But in this State the Court has a discretion to allow the party to testify when it clearly appears that injustice may be done without his testimony ; ® but when the facts to be testified to were wholly within the knowledge of the de- ceased and the offered witness, it is a proper exercise of that discretion to refuse to let the witness testify, as that would give him, being a party, an unfair advantage ; ^ but this discretion is to be exercised with caution.^ And the facts showing that injustice will be done by not allowing the other party to testify, must appear upon the evidence in the case, 1 English V. Porter, 63 N. H. 213, " Marcy v Amazeen, 61 N. H. 133; Burns v. Madigan, 60 N. H. 197. 8 Wilson V. Eussell, 61 N. H. 355. * Harrington v. Tremblay, 61 N. H. 413. 6 Drew V. McDaniel, 60 N. H. 482. « Cochran v. Langmaid, 60 N. H. 571. ' Page o. Wbidden, 59 N. H. 511. 8 Hoit V. Russell, 56 N, H. 563. 600 LAW OP EXECUTORS AND ADMINISTEATOES. and cannot be proved by affidavit of the party offering him- self as a witness.^ The rule does not prevent the offering of books of account with the party's suppletory oath, as was allowed at common law ; ^ nor does it prevent the wife of the party from testifying as to such matters as she may be other- wise competent to testify to, she not being a party to the case.^ The election of the administrator or executor to tes- tify himself, allows the other party to testify ; but when the executor or administrator is summoned by the other side and compelled to testify, this is not such an election as allows the party summoning him to testify.* The rule ap- plies to proceedings in the probate court, as well as to suits at common law. Thus, where an administration account was being settled, it was held that an heir who had become party to the record was incompetent to testify.^ § 761. statutes and Decisions in THe'vr Jersey. — In New Jersey, it is provided by statute ® that a party to a suit in a representative capacity may be admitted as a witness therein; and if called as a witness in his own behalf, and admitted, the opposite party may in like manner be admitted as a witness. Thus, where a defendant in a suit in equity dies, and his executor is substituted, the complainant cannot be a witness in his own behalf, unless the sworn answer of the defendant has already been filed, in which case he is admitted by stat- ute to disprove the parts of the answer responsive to the bill.^ If the answer, though sworn to, is not evidence, as, if it does not state facts in the knowledge of the defendant, or if it is not sworn to, or if the bill asks an answer not sworn to, then 1 Harvey v. Hilliard, 47 N. H. 553. 2 SneU V. Parsons, 59 N. H. 521. 8 Clements v. Marston, 52 N. H. 36. * Harvey v. Hilliard, supra. 6 Perkins v. Perkins, 46 N. H. 110. « Rev. Tit. Evid. § 4. ' Sweet V. Parker, 22 N. J. Eq. 455; Lanning v, Lanning, 17 N. J. Eq. 228. EVIDENCE IN SUITS. 601 the complainant is not competent.^ If an executor or admin- istrator is a witness in his own behalf, under the statute authorizing such testimony, the opposite party is thereby made competent and may testify ; but he is not so compe- tent until after the executor or administrator has been sworn in the case, and his testimony, if given before, is in- competent, although it is incumbent on the executor or ad- ministrator to insist upon its incompetency, or he will be deemed to have waived his objection.^ Thus, if in an action against an executor or administrator, the complainant tes- tifies in his own behalf before the defendant does, but the latter is subsequently sworn as a witness, he must move to suppress the complainant's testimony and to withdraw his own, if he wishes to insist upon the incompetency of the plaintiff's evidence. Otherwise he will be deemed to have waived objection to it.^ The rule applies only to parties who are materially interested in the suit, and not to one who is wrongly made a party, having no interest in the case.* If one party dies after the other has been examined, the tes- timony so given remains competent, because competent when taken.5 If a defendant is ordered to attend court and be ex- amined concerning an account, and the complainant dies after the order is passed and before the defendant is exam- ined, the examination is not competent, since the order is affected by the incompetency of the witness arising after it was passed.® The rule applies to proceedings in the orphan's court on an executor's account, when the executor offers to testify to transactions with the testator ,7 but does not apply 1 Sweet V. Parter, supra. " Walker ». Hill, 22 N. J. Eq. 513; Shepherd ». MoClain, 18 N. J. Eq. 128 ; Hartman v. Alden, 5 Vt. 518, 523. * Walker v. Hill, supra. * Harrison v. Johnson, 18 N. J. Eq. 420. 6 Mariatt v. Warwick, 18 N. J. Eq. 108. « Halstead v. Tyng, 29 N. J. Eq. 86. ' Smith V. Burnet, 34 N. J. Eq. 219. 602 LAW OP KXECHTOBS AND ADMINISTRATOES. to transactions with a deceased executor in regard to the estate he represented.^ § 762. Statutes and Decisions in New York. — In New York, the statute provides that ^ upon the trial of an action, or the bearing upon the merits of a special proceeding, a party or person interested in the event, or a person from, through, or under whom such a party or interested person derives his interest or title, by assignment or otherwise, shall not be examined as a witness, in his own behalf or interest, or in behalf of the party succeeding to his title or interest, against the executor, administrator, or survivor of a deceased per- son, or the committee of a lunatic, or a person deriving his title or interest from, through, or under a deceased person or lunatic, by assignment or otherwise, concerning a per- sonal transaction or communication between the witness and the deceased person or lunatic, except where the ex- ecutor, administrator, survivor, committee, or person so de- riving title or interest, is examined in his own behalf, or the testimony of the lunatic or deceased person is given in evi- dence concerning the same transaction or communication. A person shall not be deemed interested for the purposes of this section, by reason ai being a stockholder or officer of any banking corporation which is a party to the action or proceeding, or interested in the event thereof. Under this statute, when the probate of a will is contested^ legatees are incompetent to testify for the proponent as to personal transactions or communications between them and the testator, but if the legatee releases all interest in the will, he becomes competent.^ An executor and proponent of the will is not disqualified from testifying as to such transactions, nor does his right to commission render him 1 Palmateer v. Tilton, 40 N. J. Eq. 555. « Code Civ. Proced. § 829. 8 Loder v. Whelpley, 111 N. Y. 239; Lane v. Lane, 95 N. Y. 501. EVIDENCE IN SUITS. 603 incompetent.^ Under this statute, the interest which will disqualify a person not a party, must be an interest in the event of the particular action pending, and such that the witness will either gain or lose by the direct legal effect of the judgment, or that the record will be legal evidence, and operate for or against him in some other action ; for ex- ample, — a surety on a probate bond, who is bound by the surrogate's decree upon the accounting.^ If the testimony of the deceased is put in evidence as to such transactions, the testimony of the party surviving may be given to contra- dict it. Thus, when one of two defendants in an action on a promissory note, testified as to its consideration, and died before a second trial, in which trial the plaintiff put in evi- dence the testimony of the, deceased defendant, both direct and cross, it was held competent for the surviving defendant to contradict the testimony so put in by his own testimony as to the transactions referred tq.^ A surviving party may testify as to the fact that he had a conversation with the de- ceased, if that fact is immaterial and has no effect ; * but he cannot testify what the conversation was, nor can he testify as to the fact of there having been a conversation if that is a material fact in the case.^ If he was only a listener at a conversation between the deceased and some other person, he may testify as to that conversation.^ In this State, also, it is held that the rule does not extend to transactions with clerks or agents of the deceased, and that evidence as to such transactions is admissible.^ The rule does not extend 1 Wilson, In re, 103 N. Y. 374; Loder v. Whelpley, 111 N. Y. 239. 2 Nearpass v. Gilman, 104 N. Y. 510; Miller «. Montgomery, 78 N. Y. 282; Church v. Howard, 79 N. Y. 420. » Potts V. Mayer, 86 N. Y. 302. * Hier v. Grapt, 47 N. Y. 278. 6 Maverick v. Marvel, 90 N. Y. 656. « Badger v. Badger, 88 N. Y. 559; Gary v. White, 59 N. Y. 336; HU- debrant v. Crawford, 65 N. Y. 107. ' Pratt D..E)kiD.s^, 80 N. Y. 198. 604 LAW OP E2ECUT0HS AND ADMINISTEATOBS. SO far as to prevent the surviving party from testifying to facts which inferentially show that such a transaction did or did not take place. Thus, where a witness for one party testified that such a conversation did take place between the deceased and the other party, at which he was present, and what the conversation was, it was held that facts inferentially showing that the witness testified falsely might be testified to by the surviving party, although they tended to prove that the conversation did not take place. Such, for instance, would be testimony that the parties to the- alleged conver- sation were at the time in different places.^ In a case where the action was on a loan, which was alleged to have been made by a check given by plaintiff to defendant's in- testate, the defence being that the check concerned the af- fairs of a corporation of which the plaintiff was treasurer and the defendant's intestate president, it was held that it was incompetent for the plaintiff to testify whether the check had any reference to the affairs of the company, since the answer to such a question involved the nature of the transaction with the deceased when the check was given.^ The language of the rule as stated in the existing code covers all grantors in the title and not only the immediate grantor of the party .3 § 763. Statutes and Decisions in Ohio. — In this State, the statute provides that* a party shall not testify where the adverse party is the guardian or trustee of either a deaf and dumb, or an insane person, or of a child of a deceased per- son, or is an executor or administrator, or claims or defends as heir, grantee, assignee, devisee, or legatee of a deceased person, except — First. To facts which occurred subsequent to the appoint- ment of the guardian or trustee of an insane person, and in 1 Pinney ». Orth, 88 N. Y. 447. « Koehler v. Adler, 91 N. Y. 657. » Pope ». Allen, 90 N. Y. 298. * Rev. Sts. § 5242. EVIDENCE IN SUITS. 605 the other cases, subsequent to the time the decedent grantor, assignor, or testator died. Second. When the action or proceeding relates to a con- tract made through an agent by a person since deceased, and the agent is competent to testify as a witness, a party may testify on the same subject. Third. If a party, or one having a direct interest, testify to transactions or conversations with another party, the latter may testify as to the same transactions or conversations. Fourth. If a party offer evidence of conversations or ad- missions of the opposite party, the latter may testify con- cerning the same conversations or admissions. Fifth. In an action or proceeding by or against a partner or joint contractor, the adverse party shall not testify to transactions with, or admissions by, a partner or joint con- tractor since deceased, unless the same were made in the presence of the surviving partner or joint contractor ; and this rule shall be applied without regard to the character in which the parties sue or are sued. Sixth. If the claim or defence is founded on a book account, a party may testify that the book is his account-book, that it is a book of original entries, that the entries therein were made by himself, a person since deceased, or a disinterested person non-resident of the county ; whereupon the book shall be competent evidence ; and such book may be admitted in evidence in any case, without regard to the parties, upon like proof by any competent witness. Seventh. If a party, after testifying orally, die, the evidence may be proved, by either party, on a further trial of the case ; whereupon the opposite party may testify as to the same matters. Eighth. If a party die, and his deposition be offered in evi- dence, the opposite party may testify as to all competent matters therein. Nothing in this section contained shall apply to actions for 606 LAW OP EXECUTORS AND ADMINISTRATORS. causing death, or actions or proceedings involving the validity of a deed, will, or codicil ; and when a case is plainly within the reason and spirit of the last three sections, though not within the strict letter, their principles shall be applied. The person who is incompetent under this statute may nevertheless be called by the executor or administrator and compelled to testify as to facts which he would be incompe- tent to testify to on his own motion.^ In actions in which a surviving partner is a party, admissions by or transactions with the deceased are competent if made in the presence of the surviving partner. 2 The death of an agent has no effect upon the competency of parties or testimony in a case in which he is not a party .^ The administrator or executor is competent to testify in his own behalf as to facts occurring before the death of his intestate or testator. And if he testi- fies as to transactions and conversations between the deceased and the adverse party, the adverse party thereby gains the right to testify to the same transactions or conversations.* § 764. statutes and Decisions in Pennsylvania. — In Pennsyl- vania, until the year 1887, the statute ^ relating to this subject provided that in all trials and judicial proceedings, an executor, administrator, trustee or other person acting in a fiduciary or representative character, although a party to the proceeding, not having any interest in the subject-matter of controversy, may be examined as a witness, and the right to claim com- missions or compensation shall not be deemed or taken to be an interest disqualifying such person from being examined as any other witness : Provided, That this act shall not apply to any case in which a verdict has been rendered, judgment en- 1 Roberts v. Briscoe, 44 Ohio St. 600. 2 Harrison v. Neely, 41 Ohio St. 334^ ' First Nat. Bank v. Cornell, 41 Ohio St. 401; Cochran v. Almack, 39 Ohio St. 314. * Rankin v. Hannan, 38 Ohio St. 438. 6 Bright. Pur. Dig., Evid< § 16. EVIDENCE IN SUITS. 607 tered and a writ of error taken, nor to any case now pending in. any court of this Commonwealth. This provision is superseded by an act passed in 1887 upon the competency of witnesses, of which the part relating to this subject is as follows : — Nor ^ in such civil proceedings (that is, any civil proceeding before any tribunal of that Commonwealth, or conducted by virtue of its order or direction), where any party to a thing or contract in action is dead or has been adjudged a lunatic and his right thereto or therein has passed, either by his own act or by act of law, to a party on the record who represents his interest in the subject in controversy, shall any surviving or remaining party to such thing or contract, or any other per- son whose interest shall be adverse to the said right of such deceased or lunatic party, be a competent witness to any mat- ter occurring before the death of said party or the adjudica- tion of his lunacy, unless the proceeding is by or against the surviving or remaining partners, joint promisors, or joint promisees of such deceased or lunatic party, and the matter occurred between such surviving or remaining partners, joint promisors, or joint promisees, and the other party to the record, or between such surviving or remaining partners, promisors, or promisees, and the person having an interest adverse to them, — in which case any person may testify to SiUch matters ; or unless the action be ejectment against sev- eral defendants and one or more of said- defendants disclaims of record any title to the premises in controversy at the time the suit was brought, and also pays into court the costs ac- crued at the time of his disclaimer or gives security therefor as the court in its discretion may direct, — in which case such disclaiming defendant shall be a fully competent witness ; or unless the issue or inquiry be devisavit vel non, or be any other issue or inquiry respecting the property of a deceased owner, and the controversy be between parties respectively 1 Laws of 1877, no. 89,. § 5, cl. e. 608 LAW OP EXECUTOES AND ADMINISTRATORS. claiming such property by devolution on the death of such owner, — in which case, all persons shall be fully competent witnesses. Some of the more important decisions under the previous statute are as follows : — The act covers persons claiming by gift as well as by sale.^ The act does not create incompetency when of two joint con- tractors, one survives and the transaction referred to was with him, because then it is just that both parties being alive both should testify ,2 and a fortiori is this true of strangers.^ Nor does it exclude conversations with the person upon whom the interest has devolved merely because they took place in the presence of the then owner who is now dead,* nor facts occurring after the death of the testator or intestate,^ but the witness testifying to such facts cannot be cross-examined as to facts occurring before such death.* The fact that testi- mony as to facts occurring after the decease of the testator or intestate tends to prove inferentially facts existing or occur- ring before such decease is no objection to such testimony.^ Thus, it was held that a witness might be asked whether a package when opened was in the same condition that it had been from and immediately after her husband's death, as this testimony only referred by implication to the state of the package before such death.^ So, a witness was allowed to testify that on searching among the deceased's papers about thirty days after his death, a certain bond was found among them, although this evidence tended inferentially to prove that the bond was among his papers before his death.* So, it 1 Patterson v. Dnshane, 115 Pa. St. 337; Diehl v. Emig, 65 Pa. St. 320. = Ash V. Guie, 97 Pa. St. 493. » Hill v. Truby, 117 Pa, St. 324. * Jackson v. Payne, 114 Pa. St. 86. 6 Weaver v. Roth, 105 Pa. St. 411. « Twistman v. Croushore, 104 Pa. St. 192. ' Porter v. Nelson, 121 Pa. St. 640 1 Rothrook v. Gallaher, 91 Pa. St. 108; Stephens v. Cotterell, 99 Pa. St. 188. 8 Rothrock v. Gallaher, supra. • Porter v. Nelson, supra. EVIDENCE IN SUITS. 609 'has been held competent to prove in whose possession and where, the administrators found the property of the deceased when they took possession of it, although the tendency of such testimony may be to negative the contention that some one else had taken possession of the property before the death of the deceased ; ^ but it has been held that it was not competent for a witness in a case covered by the statute to testify that a signature of indorsement on a note in suit was in pencil, be- cause that testimony necessarily related to a fact occurring or existing in the lifetime of the owner,^ and so, it is not com- petent to prove a relationship existing at the time of trial but founded on a marriage, birth, or death, or other acts establish- ing the relation before the death of the deceased.' § 765. statutes and Decisions in Rhode Island. — In Rhode Island, it is provided by statute * that no person shall be dis- qualified from testifying in any action at law, suit in equity, or other proceeding at law or in equity, by reason of his being interested therein or being a party thereto : Provided, That whenever an original party to the contract or cause of action is dead, or is shown to the court to be insane, or whenever an executor or administrator is a party to the suit, the other party may be called as a witness by his opponent, but shall not be admitted to testify upon his own offer or upon the call of his co-plaintiff or co-defendant otherwise than now by law allowed, unless a nominal party merely, or unless the contract in issue was originally made with a person who is living and competent to testify, except as to such acts and contracts as have been done or made since the decease of the executor's testate or administrator's intestate, and Provided further, that no person shall be admitted to testify in any suit which was pending on the twenty-eighth day of March, 1877, in which either of the parties to the original contract or cause of action 1 Stephens ». Cotterell, supra. « Foster v. Collner, 107 Pa. St. 310. 8 Adams v. Edwards, 115 Pa. St. 211. * Pub. Sts. c. 214, § 33. 39 610 LAW OF EXECUTORS AND ADMINISTRATORS. was then dead, by virtue of the exceptions aforesaid, as to cases in which the contract in issue was originally made with a person who is living and competent to testify, and as to such acts and contracts as have been done or made since the decease of the executor's testate or administrator's intestate. The statute in this State has been the subject of discus- sion in only a few cases. In one it was decided that this statute did not apply to proceedings upon the probate of a will either original or appellate, for the executor is not exec- utor until the final affirmance of his appointment, The court also say that the statute is intended to apply only when the executor is party as executor representing the estate.^ It has also been held that the statute covers transactions occurring between the executor or administrator before his appointment and the other party to the suit, although such transactions occurred after the death of the testator or intestate.^ § 766. statutes and Decisions in Vermont. — In Vermont, the statutory provision ^ is that when an executor or administra- tor is a party, the other party shall not be permitted to testify in his own favor, unless the contract in issue was originally made with a person who is living and competent to testify, except as to acts and contracts doae or made since the probate of the will, or the appointment of the administrator, and to meet or explain the testimony of living witnesses produced against him, as to facts or circumstances taking place after the death of the other party. The intention of the statute is to preserve equality between the parties, and it is held that the words " contract in issue " mean the same as contract in dispute, or in question, and relate to the substantial issues made by the evidence, as well as to the formal issues made by the pleadings,* and that the 1 Hamilton v. Hamilton, 10 R. I. 540. « Brown v. Lewis, 9 R. I. 498. » Kev. Laws, § 1003. * Barnes v. Dow, 59 Vt. 545; Richardson o. Wright, 58 Vt. 370; Wil- ley V. Hunter, 57 Vt. 489. EVIDENCE IN SUITS. 611 term "the other party" means the other party to the con- tract in issue, and not the other party to the record.^ The rule does not prohibit the wife of a deceased person from tes- tifying as to facts which she is otherwise competent to testify to, the contract in issue not being between herself and her husband.2 Nor does it apply to agents by whom the contract was made.^ In that State, if a party to the case testifies and dies, it is by statute provided that if his testimony is repro- duced in another trial by stenography or in writing, the other party may testify in opposition to it ; but it is held that this statutory provision does not extend to cases where the testi- mony is reproduced by witnesses from recollection only, and that in such case the other party cannot testify in opposition to the testimony so reproduced.* The statute does not ex- clude persons interested in the suit unless they were parties to the cause of action in issue and on trial.^ Nor does it exclude the offer of account books with the suppletory oath of the party producing them.® The expression " contract or cause of action in issue or on trial " excludes all contracts or issues which are collateral to the contract or cause of action being enforced. If the parties to the main contract are alive, they may both testify as to it.'^ If the administrator puts in evidence a memorandum in writ- ing of the deceased, the other party is held not to be compe- tent to testify to explain the writing or to state what was said or done on the occasion of giving it.* The surviving party cannot make himself competent as a witness by putting 1 Barnes v. Dow, 59 Vt. 545, 546. « Stowe v. Bishop, 58 Vt. 500. » Kittell V. Eailroad Co. 56 Vt 106; Lytle v. Bond, 40 Vt. 618; Poquet V. North Hero, 44 Vt. 91; Hollister r. Young, 42 Vt. 40-3; Pember V. Congdon, 55 Vt. 59. * Blair v. Ellsworth, 55 Vt. 417. « Lytle v. Bond, 40 Vt. 618. 6 Thrall v. Seward, 37 Vt. 573; Johnson v. Dexter, 37 Vt. 641; Hunter V. Kittredge, 41 Vt. 359; Woodbury v. Woodbury, 48 Vt.'94. ' Cole ». Shurtleff, 41 Vt. 311; Morse v. Low, 44 Vt. 561. 8 Woodbury ». Woodbury, 48 Vt. 94. 612 LAW OF ESECUTOES AND ADMINISTRATORS. in evidence testimony of the deceased in another case, upon the cause of action on trial.^ The statute in the State contin- ues the disability as to all acts down to the appointment of the administrator or the probate of the will.^ The rule does not extend to contracts or causes of action having three or more parties ; for if the action is against one of two surviving parties to the contract the other party is competent to testify, even as to transactions between him and the deceased party alone.^ § 767. statutes and Decisions in Wisconsin. — In this State, the statute* provides that no party and no person from, through, or under whom a party derives his interest or title, shall be examined as a witness in respect to any transaction or communication by him personally with a deceased person, or with a person then insane, in any civil action or proceeding in which the opposite party derives his title, or sustains his liability, to the cause of action, from, through, or under such deceased person or such insane person, or in which such in- sane persoh is a party prosecuting or defending by guardian, unless such opposite party shall first be examined, or examine some other witness in his behalf, concerning some transaction or communication between the deceased or insane and such party or person, or unless the testimony of such deceased per- son given in his lifetime, or of such insane person, be first read or given in evidence by the opposite party ; and then, in either case respectively, only in respect to such transaction or communication of which testimony is so given, or to the mat- ters to which such testimony relates. Also, no party ,^ and no person from, through, or under whom a party derives his interest or title, shall be examined as a witness in respect to any transaction or communication 1 Walker v. Taylor, 43 Vt. 612. 2 Ford V. Cheney, 40 Vt. 153; Roberts v. Lund, 45 Vt. 82. = Bead v. Sturtevant, 40 Vt. 521 ; Dawson v. Wait, 41 Vt. 626. * Rev. Sts. §§ 4069, 4070. « § 4070. EVIDENCE IN SUITS. 613 by him personally with an agent of the adverse party, or an agent of the person from, through, or under whom such adverse party derives his interest or title, when such agent is dead or insane, or otherwise legally incompetent as a wit- ness ; unless the opposite party shall first be examined, or examine some other witness in his behalf, in respect to some transaction or communication between such agent and such other party or person ; or unless the testimony of such agent, at any time taken, be first read or given in evidence by the opposite party ; and then, in either case respectively, only in respect to such transaction or communication of which testi- mony is so given, or to the matters to which such testimony relates. In this State, it is held that in an action for board and lodg- ing furnished to the deceased, it is competent for the plaintiff to show how long the defendant's intestate boarded with plaintiff and the kind of board furnished by the plaintiff, since these are not transactions with the deceased but independent facts.^ And, in general, the fact of furnishing supplies or goods to the deceased from which the law implies a promise to pay, is not held to be covered by the rule in this State.^ And it has been held that a letter is not within this exclusion, because a personal transaction means a face to face transac- tion.3 And that such evidence is admissible when it is an admission against his interest, as of a payment of money due to him.* If evidence barred by the rule is put in without objection and then evidence to rebut it is introduced, the ob- jection to it is waived.^ If a third person is present at such a conversation, he or she may testify to it, although it may be the wife of the deceased person, without rendering competent tlie testimony of the surviving party .^ The payee of a note 1 Pritchard v. Pritchard, 69 Wis. 373. 3 Belden v. Scott, 65 Wis. 426. « Daniels v. Foster, 26 Wis. 686. * Crowe V. Colbeth, 63 Wis. 643. « Phillips v. McGrath, 62 Wis. 124. « Bumham v. Mitchell, 34 Wis. 117. 614 LAW OF EXECUTORS AND ADMINISTRATORS. may testify with what kind of ink he signed it, whether he struck out any printed words, and other facts bearing on the question of alteration.^ And if a question is put which does not appear to require an answer which is objectionable under the rule, it is error to exclude the question.^ A defendant who is not interested in the suit but is a party cannot testify under this rule.^ A partner, while acting in the affairs of the partnership, is so far an agent of the other partners as to come under the section of this statute applying to agents.* 1 Page V. Danaher, 43 Wis. 221. ^ Adams v. Allen, 44 Wis. 93. » Knox V. Bigelow, 15 Wis. 415. * Rogers v. Brightman, 10 Wis. 55. APPENDIX OF SELECTED STATUTES ALPHABETICALLY ARRANGED BY THE NAMES OF THE RESPECTIVE STATES. CALIFORNIA. Deeking's Annotated Statutes, Vol. III. 1886. Incompetency. § 1350. No person is competent to serve as ex- ecutor who, at the time the will is admitted to probate, is : (1) Under the age of majority ; (2) Convicted of infamous crime ; (3) Adjudged by the court incompetent to execute the duties of the trust by reason of drunkenness, improvidence, or want of understanding or integrity. If the sole executor or all the executors are incompetent, or renounce, or faU to apply for letters, or to appear and qualify, letters of admin- istration with the will annexed must be issued as designated and pro- vided for in the grant of letters in cases of intestacy. § 1369. No person is competent or entitled to serve as administra- tor or administratrix who is : (1) Under the age of majority ; (2) Not a lonajlde resident of the State ; (3) Convicted of an infamous crime ; (4) Adjudged by the court incompetent to execute the duties of the trust by reason of drunkenness, improvidence, or want of understand- ing or integrity. Competency of Married Woman. § 1352. When an unmarried woman, appointed executrix, marries, her authority is extinguished. When a married woman is named as executrix, she may be appointed and serve in every respect as a feme sole. § 1370. A married woman must not be appointed administratrix. When an unmarried woman appointed administratrix marries, her authority is extinguished. Executor of Executor. § 1353. No executor of an executor shall, as such, be authorized to administer on the estate of the first testator, but on the death of the sole or surviving executor of any last will, 616 APPENDIX OP SELECTED STATUTES. letters of administration with the will annexed of the estate of the first testator, left unadministered, must be issued. Order of Adnunistration. § 1365. Administration of the estate of a person dying intestate must be granted to some one or more of the persons hereinafter mentioned, the relatives of the deceased being entitled to administer only when they are entitled to succeed to his personal estate, or some portion thereof, and they are, respectively, entitled thereto in the following order : — 1. The surviving husband or wife, or some competent person whom he or she may request to have appointed. 2. The children. 3. The father or mother. 4. The brothers. 5, The sisters. 6. The grand- children. 7. The next of kin entitled to share in the distribution of the estate. 8. The public administrator. 9. The creditors. 10. Any person legally competent. If the decedent was a member of a part- nership at the time of his decease, the surviving partner must in no case be appointed administrator of his estate. § 1366. Of several persons claiming and equally entitled to ad- minister, males must be preferred to females, and relatives of the whole to those of the half blood. § 1367. When there are several persons equally entitled to the administration, the court may grant letters to one or more of them ; and when a creditor is claiming letters, the court may, in its discre- tion, at the request of another creditor, grant letters to any other person legally competent. Resignation. § 1427. Any executor or administrator may, at any time, by writing, filed in the Superior Court, resign his appointment, having first settled his accounts and delivered up all the estate to the person whom the court shall appoint to receive the same. If, how- ever, by reason of any delays in such settlement and delivery up of the estate, or for any other cause, the circumstances of the estate or the rights of those interested therein require it, the court may, at any time before settlement of accounts and delivering up of the estate is completed, revoke the letters of such executor or administrator, and appoint in his stead an administrator, either special or general, in the same manner as is directed in relation to original letters of adminis- tration. The liability of the outgoing executor or administrator, or of the sureties on his bond, shall not be in any manner discharged, released, or affected by such appointment or resignation. Inventory. § 1443. Every executor or administrator must make and return to the court within three months after his appointment, a APPENDIX OF SELECTED STATUTES. 617 true inventory and appraisement of all the estate of the decedent, in- cluding the homestead, if any, which has come to his possession or knowledge. Assets. § 1452. The executor or administrator is entitled to the possession of all the real and personal estate of the decedent, and to receive the rents and profits of the real estate until the estate is settled, or until delivered over by order of the court to the heirs or devisees, and must keep in good tenantable repair all houses, build- ingSj and fixtures thereon which are under his control. The heirs or devisees may themselves, or jointly with the executor or administra- tor, maintain an action for the possession of the real estate, or for the purpose of quieting title to the same, against any one except the ex- ecutor or administrator ; but this section shall not be so construed as requiring them so to do. § 1453. Unless it satisfactorily appear to the court that the rents, issues, and profits of the real estate for a longer period are necessary to be received by the executor or administrator, wherewith to pay the debts of the decedent, or that it will probably be necessary to sell the real estate for the payment of such debts, the court, at the end of the time limited for the presentation of claims against the estate, must direct the executor or administrator to deliver possession of all the real estate to the heirs-at-law or devisees. Widow's Allowances. § 1464. When a person dies leaving a widow or minor children, the widow or children, until letters are granted and the inventory is returned, are entitled to remain in pos- session of the homestead, of all the wearing apparel of the family, and of all the household furniture of the decedent, and are also entitled to a reasonable provision for their support, to be allowed by the superior court, or a judge thereof. Citation of Creditors. § 1490. Every executor or administrator must, immediately after his appointment, cause to be published in some newspaper of the county, if there be one, if not, then in such newspaper as may be designated by the court, a notice to the creditors of the decedent, requiring all persons having claims against him to exhibit them, with the necessary vouchers, to the executor or admin- istrator, at the place of his residence or business, to be specified in the notice. Such notice must be published as often as the judge or court shall direct, but not less than once a week for four weeks. The court or judge may also direct additional notice by publication or posting. In case such executor or administrator resigns, or 618 APPENDIX OF SELECTED STATUTES. is removed, before the time expressed in the notice, his successor must give notice only for the unexpired time allowed for such presentation. § 1491. The time expressed in the notice must be ten months after its first publication, when the estate exceeds In value the sum of ten thousand dollars, and four months when it does not. § 1493. All claims arising upon contracts, whether the same be due, not due, or contingent, must be presented within the time limited in the notice, and any claim not so presented is barred forever ; pro- vided, however, that when it is made to appear by the affidavit of the claimant, to the satisfaction of the court, or a judge thereof, that the claimant had no notice as provided in this chapter, by reason of being out of the State, it may be presented at any time before a decree of distribution is entered. Payment of Debts. § 1516. All the property of a decedent shall be chargeable with the payment of the debts of the deceased, the ex- penses of administration, and the allowance to the family, except as otherwise provided in this code and in the CivU Code. And the said property, personal and real, may be sold as the court may direct, in the manner prescribed ia this chapter. There shall be no priority as between personal and real property for the above purposes. Sale of Real Estate. § 1536. When a sale of property of the- estate is necessary to pay the allowance of the family, or the debts outstanding against the decedent, or the debts, expenses, or charges of administration, or legacies, the executor or administrator may also sell any real as well as personal property of the estate for that purpose, upon the order of the court ; and an application for the sale of real property may also embrace the sale of personal property. Preferred Debts. § 1643. The debts of the estate subject to the provisions of section twelve hundred and five must be paid in the fol- lowing order : — 1. Funeral expenses. 2. The expenses of the last sickness. 3. Debts having preference by the laws of the United States. 4. Judg- ments rendered against the decedent in his lifetime, and mortgages, in the order of their date. 5. AU other demands against the estate. § 1644. The preference given in the preceding section to a mort- gage only extends to the proceeds of the property mortgaged. If the proceeds of such property are insufficient to pay the mortgage, the part remaining unsatisfied must be classed with other demands against the estate. APPENDIX OP SELECTED STATUTES. 619 CONNECTICUT. Genebal Statutes, 1887. Administration cum testamento annezo. § 549. If no executor be named in the will, or if the executor named shall have died, or shall refuse or be incapable to accept the trust or to give a bond, the court shall commit the administration of the estate, with the will an- nexed, to the husband, wife, or next of kin of the deceased, and may cite them to appear before it, and upon their refusal to accept or to give bond, neglect of appearance or incapacity, may grant administra- tion to one of the principal creditors, or to such other person as the court shall see fit, taking a probate bond. Married Woman as Hzecutriz. § 551. Any married woman may be appointed executrix of, or trustee under, any last will, or adminis- tratrix of the estate of any deceased person of whom she is an heir-at-law, or guardian of any minor, and may accept such ap- pointment and discharge the duties thereof, without the consent or concurrence of her husband, provided she is under no other legal dis- ability. Such married woman, being executrix, administratrix, trus- tee, or guardian, may sue and be sued in her official capacity as a feme sole. The husband of such executrix, administratrix, trustee, or guardian shall not be sued for her act or default, unless such act or default is by his express direction, and if improperly sued he shall recover his costs. § 552. Such married woman, acting as executrix, administratrix, trustee, or guardian, may give any bond required by law, or by the order of any proper court, for the faithful discharge of her duties, and may be sued as a feme sole for any breach of such bond ; and all the estate of such married woman shall be liable therefor, provided her husband shall endorse on said bond his consent thereto, at the time of its execution, or acceptance by such court ; otherwise the separate es- tate of such married woman shall be liable therefor. Executor of Executor. § 553. The executor of an executor shall not as such administer the estate of the first testator. Order of Administration, § 565. When any person shall die in- testate, the Court of Probate, in the district in which the deceased last dwelt, shall grant administration of the estate to the husband or wife or next of kin, or to both, or on theh- refusal or incapacity, or upon the objection by any creditor or heir to such appointment, to 620 APPENDIX OP SELECTED STATUTES. any other person whom the court deems proper ; and when a person living out of the State shall die intestate, leaving property within the State, administration may be granted in any district where the estate or some part thereof shall be to such person as the court shall think fit. The court upon granting any administration shall take a probate bond from the administrator. Time limited for taking Administration, § 568, Except as pro- vided in this and the preceding section and the two succeeding sec- tions, administration of the estate of any person shall not be granted, nor shall the will of any person be admitted to probate, after ten years from his decease, unless the Court of Probate, upon written petition and after public notice, shall find that administration of said estate ought to be granted, or that said will should be admitted to probate ; provided, however, that when any minor is interested one year shall be allowed, after his arrival at full age, to take out administration, or to cause said will to be proved. And in all cases where any person has died leaving estate which is not known to those interested in the same, within the time above limited, but is discovered afterwards, ad- ministration may be granted within one year after its discovery. Insolvent Estates, Settlement of. § 571. The estate of any de- ceased person may be settled as an insolvent estate, if the Court of Probate deem it expedient. But when the settlement of any solvent estate shall'have been commenced as an insolvent estate, the rights of all persons having claims against it, subsequently accruing, and which shall not have been exhibited to the commissioners hereinafter men- tioned, within the time limited for the exhibition of claims, shall be the same, in respect to any estate of such deceased person remaining after the payment of the claims allowed by them, as they would have been in regard to such remaining estate, if said estate had always been treated as a solvent estate. § 573. No suit, except for debts due to the United States, or to the State, or for the expenses of the last sickness, or funeral charges^ shall be brought against the executor or administrator of an insolvent estate in course of settlement, and in case judgment shall have been rendered against him before the commencement of its settlement as an insolvent estate, no execution shall issue, but the creditor may exhibit his judgment to the commissioners who are or may be appointed by the Court of Probate commissioners to receive and decide upon the claims of the creditors of said estate, and receive his average of the estate with the other creditors ; and, if judgment shall APPENDIX OF SELECTED STATUTES. 621 not have been rendered, the suit shall abate ; but if said claim or any part be allowed by the commissioners, no costs on such abatement shall be allowed to the estate, and the creditor may exhibit his claim and the accrued costs of suit to the commissioners, and the costs con- tained in said judgment or accrued in said suit, if said claim is allowed wholly or in part by the commissioners, shall be preferred by the Court of Probate, if in its opinion the bringing of such suit was necessary to protect the creditor's rights, and not otherwise. Inventory. § 578. An inventory of all the property, including choses in action, of the estate of every deceased person and every in- solvent debtor, shall be made by the executor, administrator, or trus- tee, which property, except the choses in action, shall be appraised by two or more disinterested persons, under oath, appointed by the court. Sale of Real Estate. § 600. The Court of Probate, upon the ap- plication of the executor or administrator of any deceased person whose estate is in settlement in such court, upon hearing after public notice, may in its discretion order the sale of the whole or a part of any real estate or an undivided interest therein, in such manner and upon such notice as it shall judge reasonable, taking a sufficient pro- bate bond, and if of the amount realized, after the payment of all debts and charges and incidental charges of sale, a surplus remains, the same shall be divided or distributed in the same manner as such real estate would have been divided or distributed if the same had not been sold. Widow's Allowance. § 604. Courts of Probate may allow out of any estate of a deceased person, in settlement before such courts, such amount as they may judge necessary for the support of the wife or family of the deceased during the settlement of the estate. Resignation; Removal. § 611. When any executor, administrator, guardian, conservator, trustee, or any person acting in any fiduciary capacity, shall become incapable of executing his trust, or neglect to perform the duties thereof, or waste the estate in his charge, the Court of Probate in which he was appointed may remove him, after notice and a hearing, on its own motion, or upon the application and complaint of any person interested, and said court, after notice and hearing, may act upon and accept or reject the written resignation of any such ap- pointee, provided no such resignation shall be accepted untU such per- son shall have fully and finally accounted, to the acceptance of such court, and said court upon such removal or the acceptance of such 622 APPENDIX OP SELECTED STATUTES. resignation, may appoint a suitable person to fill such vacancy, who shall give a probate bond. And trustees appointed by a testator to execute a trust created by will, and testamentary guardians, may re- sign or be removed, and vacancies filled in like manner by the court having jurisdiction, unless otherwise provided by the will. GEORGIA. Code, 1882. Incompetency. § 2492. None but citizens of the United States residing in the State of Georgia, are qualified to be made administrar tors, except as provided in the next section. Order of Administration. § 2494. In the granting of letters of administration of any kind the following rules shall be observed, the applicant being, in all cases, of sound mind and laboring under no dis- ability : 1. The husband or wife surviving, irrespective of age, shall be first entitled. 2. The next of kin, at the time of the death, according •to the law declaring relationship and distribution, shall be next en- titled ; but if the party died testate, the person most beneficially in- terested under the will shall have the preference. Relations by consanguinity shall be preferred to those by afiinity. 3. If there be several of the next of kin equally near in degree, the person selected in writing by a majority of those interested as distributees of the estate, and who are capable of expressing a choice, shall be appointed. 4. If no such preference is expressed, the Ordinary may exercise his discretion in selecting the one best qualified for the office. 5. Where no application is made by the next of kin, a creditor may be ap- pointed ; and among creditors, as a general rule, the one having the greatest interest will be preferred. 6. The person entitled to an es- tate may select a disinterested person as administrator, and, if other- wise qualified, he shall be appointed. 7. The person entitled to administration may desire a third person associated with him in the administration, and in such case, if otherwise qualified, he may be ap- pointed. 8. No person shall be appointed administrator who is neither of kin to the intestate nor a creditor, nor otherwise interested in the grant of administration, except in the cases before provided. 9. If a married woman is next of kin, her husband is entitled to the adminis- tration. If a female administratrix or executrix marries, her husband APPENDIX OP SELECTED STATUTES. 623 may be appointed administrator. The Ordinary, however, may, in his discretion, grant the letters to any other person entitled thereto under any of the prescribed rules. 10. As a general rule, to cover all cases not specially provided for, the person having the right to the estate ought to have the administration. 11, Temporary letters of administration, pending the litigation on a propounded will, should generally be granted to the nominated executor. Notice to Creditors. § 2530. Every administrator shall give six weeks' notice by advertisement in one of the public gazettes of this State, or at three different places of the most public resort in the county, for creditors of the estate to render in an account of their demands. The administrator shall be allowed twelve months from the date of his qualification to ascertain the condition of the estate. Creditors failing to give notice within that time lose all right to an equal participation with creditors of equal dignity to whom distri- bution is made before notice of such claims is brought to the adminis- trator, nor can they hold the administrator liable for a misappropriation of the fund ; if, however, there are assets in the hands of the adminis- trator sufficient to pay such debts, and no claims of higher dignity are unpaid, the assets shall be thus appropriated, notwithstanding the failure to give notice. Payment of Debts. § 2533. In the payment of the debts of a de- cedent, they shall rank in priority in the following order: 1. Funeral expenses, to correspond with the circumstances of the deceased in life, including the physician's bill and expenses of the last sickness. If the estate is solvent, the administrator is authorized to provide a suitable protection for the grave of the deceased. 2. The necessary expenses of administration, including a provision for the support of the family. 3. Unpaid taxes or other debts due to the State or United States. 4. Debts due by the deceased as executor, adminis- trator, or guardian, for the estate committed to him as such, or any debts due by the deceased as trustee, having had actual possession, control, and management of the trust property. 5. Judgments, mort- gages, and other liens created during the lifetime of deceased, and to be paid according to their priority of lien. Mortgages and other liens on specific property to be preferred only so far as such property ex- tends. 6. Debts due for rent. 7. All liquidated demands, including foreign judgments, dormant judgments, bonds, and all other obliga- tions in writing for the payment of money, promissory notes, and all debts, the amount due on which was fixed and ascertained or ac- 624 APPENDIX OP SELECTED STATUTES. knowledged in writing prior to the death of the decedent. 8. Open accounts. Sale of Real Estate. § 2559. Whenever any administrator or guardian or executor, unless authorized to sell by the provisions of the will which he is executing, shall desire to sell railroad or bank stock wherever found, and stocks of other incorporated companies, he must first apply to the Ordinary of the county which has jurisdiction over him for leave to sell such stock, which shall be heard and determined after the usual citation for leave to sell is issued, as applications for sale of real estate. After such sale is ordered, the sale of such rail- road and bank stock, and stocks of other incorporated companies, shall be conducted in the same manner as sales of real estate are con- ducted. Resignation. § 2610. Any administrator who, from age or in- firmity, removal from the county, or for any other cause, desires to resign his trust, may petition the Ordinary, stating the reasons, and the name of a suitable person qualified and entitled to and willing to accept the trust ; whereupon the Ordinary shall cite such person, and the next of kin of the intestate, to appear and show cause why the order should not be granted. If no good cause be shown, and the Ordinary is satisfied that the interest of the estate will not suffer, the resignation shall be allowed, and the administrator shall be dis- charged from his trust whenever he has fairly settled his accounts with his successor, and filed with the Ordinary the receipt in full of such successor. Minors in interest shall be allowed five years from the time of their arrival at majority to examine into and open such settlement. ILLINOIS. Stare & Curtis's Annotatbd Statutes, 1885. Incompetency. IT 3. Persons of the age of seventeen years, of sound mind and memory, may be appointed executors ; but when a person appointed executor is, at 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, administration 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 ad- ministered by such other executor until the minor arrives at the full APPENDIX OF SELECTED STATUTES. 625 age or the other disability is removed, when, upon giving bond as in other eases, he may be admitted as 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. Exemption from Security. IT 8. When any testator leaves visible estate more than suiBcient to pay all his debts, and by will shall direct that his executors shall not be obliged to give security, in that case no security shall be required, unless the county court shall see cause, from its own knowledge, or the suggestions of creditors and legatees, to suspect the executors of fraud, or that the personal estate will not be sufficient to discharge all the debts, in which case such court may require security, and the same shall be given before or aiter letters testamentary are granted, notwithstanding any directions to the contrary in the will. Order of Administration. IT 18. Administration shall be granted to the husband upon the goods and chattels of his wife, and to the widow and next of kin to the intestate, or some of them, if they will accept the same, and are not disqualified ; but in all cases the widow shall have the preference, and if no widow or other relative of the in- testate applies within sixty days from the death of the intestate, the county 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 be granted to any person who the county court may think will best manage the estate. In all cases where the intestate is a non-resident, or [and] without a widow, next of kin, or creditors in this State, but leaves property within the State, administration shall be granted to. the public ad- ministrators of the proper county. Removal. IT 30. The county court may revoke all letters, testa- mentary or of administration, granted to persons who become 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 endanger their co-executors, co- administrators, or securities, in all which cases the court shall summon the person charged to be in default or disqualified, as aforesaid, to show cause why such revocation should not be made. When revoca- tion is made, the reason therefor shall be stated at large upon the ■record. Resignation. IT 40. An executor or administrator may, upon his petition and upon giving such notice to the legatees, devisees, or dis- 40 626 APPENDIX OP SELECTED STATUTES. tributees, as the court shall direct, be allowed to resign his trust when it appears to the county court to be proper ; and upon such resigna- tion the court shall grant letters of administration, with the will an- nexed, or de bonis non, to some suitable person, to administer the goods and estate not already administered. But no administrator or executor shall be discharged till he shall have made full settlement with the court and complied with its orders, and shall deliver over to his successor all money, chattels, and effects of the estate in his hands not paid over according to the orders of the court. Inventory. % 51. Whenever letters testamentary, of administra- tion, 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 superintend- ence and management, and as shall come to his hands, possession, or knowledge, describing the quantity, situation, and title of the real es- tate, and particularly specifying the nature and amount of all annui- ties, rents, goods, chattels, rights, and credits and money on hand, and whether the credits are good, doubtful, or desperate, which said in- ventory shall be returned to the office of clerk of the county court, within three months from the date of the letters testamentary or of administration. Claims, Limitation of Time of. IT 60. Every administrator or executor shall fix upon a term of the court, within six months from the time of his being qualified as such administrator or executor, for the adjustment of all claims against such decedent, and shall publish a notice thereof for three successive weeks, 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 court for the purpose of having the same adjusted (the first publication of such notice to be given at least six weeks previous to said term), when and where such claimant shall produce his claim in writing, and if no objection is made to said claim by the executor, ad- ministrator, widow, heirs, or others interested in said estate, and the claimant swears that such claim is just and unpaid, after allowing all just credits, the court may allow such claim without further evidence, but if objection is made to such claim, the same shall not be allowed without other Sufficient evidence. The court may allow either party APPENDIX OP SELECTED STATUTES. 627 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 shall be the duty of the county clerk, when a jury is demanded, to issue a venire to the sheriff of the county to summon a jury, to be composed of the number demanded. Preferred Debts. Supplement, f 70. All demands against the estate of any testator or intestate shall be divided into classes, in manner following, to wit : — 1. Funeral expenses. 2. Widow's award, if there is a widow, or children's, if there are children, and no widow. 3. Expenses attending the last illness, not including physician's bill. 4. Debts due to the common-school or township fund. 5. All expenses of proving the will, and taking out letters testa- mentary or of administration, and settlement of the estate, and the physician's bill, in the last illness of the deceased. 6. "Where the decedent has received money in trust for any purpose, his executor or administrator shall pay out of his estate the amount thus received and not accounted for ; the wages due a servant or la- borer for labor performed for decedent within six months previous to his death. 7. All other debts and demands, of whatever kind, without regard to quality or dignity, which shall be exhibited to the court within two years from the granting of letters, as aforesaid, and all demands not exhibited within two years, as aforesaid, shall be forever barred, unless the creditors shall find other estates of the deceased, not inven- toried or accounted for by the executor or administrator, in which case their claims shall be paid pro rata out of such subsequently dis- covered estate ; saving, however, to femes covert, infants, persons of unsound mind, or imprisoned, or without the United States in the employment of the United States or of their State, the term of two years after their respective disabilities are removed, to exhibit their claims. Sale of Personal Property. 1[ 91. When it is necessary for the proper administration of the estate, the executor or administrator shall, as soon as convenient after making the inventory and appraise- ment, sell at public sale all the personal property, goods, and chattels of the decedent, when ordered to do so by the county court (not re- served to the widow, or included in specific legacies and bequests, 628 APPENDIX OP SELECTED STATUTES. 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 ad- vertisement 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 pur- chasers 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. Sale of Real Estate. IT 98. 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 ascertained 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 in- debtedness of such decedent, and the expenses of administration, may be sold in the manner herein provided. INDIANA. Eevised Statutes, 1881. Order of Administration. § 2227. At any time after the death of an intestate, the proper clerk or court, having examined the person applying for letters and such persons as may be deemed proper to be examined, under oath, touching the time and place of the death of the intestate, whether he left a will, and concerning the quali- fications of such person, and there being no such will, shall grant letters of administration in their order, — 1. To the widow or widower 2. To the next of kin. 3. To the largest creditor applying and residing in the State. 4. If no person thus entitled to administer shall apply within twenty days after the death of the intestate, the clerk or court shall appoint a competent inhabitant of the county, to whom the letters shall issue. Preferences. § 2229. If several persons of the same degree of kindred are entitled to administration, letters may be granted to one or more of them ; but males shall be preferred to females, relatives of APPENDIX OF SELECTEE STATUTES. 629 the whole blood to those of the half blood, and unmarried to married women ; and any other competent person may be associated in such administration, the person entitled thereto assenting. If a creditor apply for letters, he shall prove the amount of his debt by affidavit, filed with the clerk ; and if two or more creditors are equally entitled the clerk or court shall decide who is to administer. Incompetency. § 2230. No letters of administration shall be granted to any person incompetent to serve as an executor ; and no such letters shall be granted to a married woman, unless her husband file his consent thereto in writing with the clerk issuing the letters, which consent shall make him, jointly with her, responsible for her acts in the premises. Removal. § 2245. On a written application, verified by oath, of any person interested in the estate, or of any co-executor, co-adminis- trator, or surety of such executor or administrator, specifying the grounds of complaint, any executor, administrator with the will an- nexed, or administrator may be removed, and his letters superseded by the court in which such letters issued, for any of the following causes : — 1. Where, from sickness, habitual drunkenness, imbecility, change of residence actual or intended, or other cause, he is rendered incapa- ble of discharging his trust to the interest of the estate. 2. When he shall fail to make and return inventories and sale-bills, or to render account of his administration according to law or the order of the court, or shall waste, or fail to pay over according to law, the money of such estate. 3. When it shall be shown to the court by his sure- ties that such executor or administrator has become or is likely to become insolvent, in consequence of which his sureties have suffered or will suffer loss. 4. Where any administratrix or executrijc, at the time letters issued, was unmarried, and shall afterward marry, and her husband shall fail to file his consent in open court, in writing, to her continuing as such. 5. But whenever an executor or administra- tor shall be about removing from the county in which he resided at the time he became such executor or administrator, he shall, before leav- ing such county, make a true and final exhibit, under oath, to the Circuit Court, of the condition of the estate of which he is executor or administrator, at which time his letters of executorship or adminis- tration shall be revoked ; Provided that, if an administrator remove to an adjoining county, his letters shall be revoked in the discretion of the court, 6. Where he shall fail to give additional bond and sureties. 630 APPENDIX OP SELECTED STATUTES. as required by the court, or the court may without such application, for any such causes, in cases of emergency remove such executor or administrator instanter, without citation. Competency of Married Women. § 2251. Whenever the ground of complaint is that any executrix or administratrix, being an un- married woman, has, since the granting of letters, married, the court shall not supersede such letters and remove her, if her husband will signify his assent, in writing, filed in open court, to her continuing as such, and if she shall give further bond and surety to the satisfaction of the court, if such surety be required. 'Wido'w's AlloTvance. § 2262. Where a man having a family shall die, leaving a widow or minor child, the following articles shall be omitted in making the inventory, and shall not be considered as assets, viz. : — 1. All the articles of apparel and ornament of the widow and of the children of the deceased. 2. The wearing apparel of the deceased, which shall be distributed at the discretion of the widow, or, if there be no widow, in the discretion of the executor or administrator, among the nearest relatives, unless otherwise legally directed to be disposed of by the deceased. 3. Bibles and school-books used in the family of such deceased. 4. All the provisions on hand provided for consump- tion by the family. Sale of Personal Property. § 2275. Such executor or adminis- trator, immediately after filing any such inventory and appraisement, shall proceed to sell at public auction the personal property of the deceased not taken by the widow. Claims against Estate. § 2310. No action shall be brought by com- plaint and summons against the executor or administrator of an estate, for the recovery of any claim against the decedent ; but the holder thereof, whether such claim be due or not, shall file a succinct and defi- nite statement thereof in the office of the clerk of the court in which the estate is pending. Any claim of the executor or administrator against the decedent shall be, in like manner, made out and filed. Sale of Real Estate. § 2332. If the personal estate of a decedent shall be insufficient for the payment of the liabilities thereof, the real estate of the deceased, if any, shall be sold to make assets for the pay- ment of such liabilities. Preferred Debts. § 2378. Unless otherwise provided in this Act, the debts and liabilities of a decedent shall, if his estate be solvent, be paid in the following order of classes : — APPENDIX OP SELECTED STATUTES. 631 1. The expenses of administration. 2. The expenses of the funeral of the deceased. 3. The expenses of his last sickness. 4. Taxes ac- crued upon the real and personal estate of the deceased at his death, and taxes assessed upon the personal estate, during the course of the administration. 5. Debts secured by liens upon the personal and real estate of the decedent, created or suffered by him in his lifetime, and continuing in force; Provided that, if the real estate of the decedent shall have been sold subject to any lien, and the holder thereof shall have accepted the bond of the purchaser as provided in this Act, the debt secured by such lien shall be omitted in the dis- tribution. 6. A sum not exceeding fifty dollars for wages due any employee for work and labor performed for the decedent within two months prior to his death. 7. General debts. 8. Legacies. Insolvent Estates. § 2423. As soon as any executor or adminis- trator shall discover that the personal estate of the decedent and the real estate liable to be made, or which shall have been made, assets for the payment of his debts, are insufficient to pay the debts and liabilities of the estate, he shall immediately file his petition, in the Circuit Court issuing his letters, to settle the estate as insolvent. IOWA. Eevised Code, 1886. Competency of Married Woman. § 2345. A married woman may act as executor independent of her husband. Competency of Minors. § 2346. If a minor under eighteen years of age is appointed an executor, there is a temporary vacancy as to him until he reaches that age. Order of Administration. § 2354. In other cases where an ex- ecutor is not appointed by will, administration shall be granted : (1) To the wife of the deceased ; (2) To his next of kin ; (3) To his creditors ; (4) To any other person whom the court may select. § 2355. Individuals belonging to the same or different classes may be united as administrators whenever such course is deemed ex- pedient. Limit of Time of taking Administration. § 2367. Administra- tion shall not be originally granted after the lapse of five years from the death of the decedent, or from the time his death was known in case he died out of the State. 632 APPENDIX OF SELECTED STATUTES. Widow's Allowance. § 2371. When the deceased leaves a widow, all personal property which in his hands as the head of a family would be exempt from execution, after being inventoried and ap- praised, shall be set apart to her as her property in her own right, and be exempt in her hands as in the hands of the decedent. § 2375. The court shall, if necessary, set off to the widow and children under fifteen years of age of the decedent, or to either, sufficient of his property, of such kind as it shall deem appropriate, to support them for twelve months from the time of his death. Sale of Real Bstate. § 2387. If the personal effects are found inadequate to satisfy such debts and charges, a sufficient portion of the real estate may be ordered to be sold for that purpose. Preferred Debts. § 2418. As soon as the executors are possessed of sufficient means, over and above the expenses of administration, they shall pay off the charges of the last sickness and funeral of deceased. § 2419. They shall, in the next place, pay any allowance which may be made by the court for the maintenance of the widow and minor children. § 2420. Other demands against the estate are payable in the fol- lowing order :. 1. Debts entitled to preference under the laws of the United States. 2. Public rates and taxes. 3. Claims filed within six months after the first publication of the notice given by the executors of their appointment. 4. All other debts. 5. Legacies. Limitation. § 2421. All claims of the fourth of the above classes not filed and proved within twelve months of the giving of the notice aforesaid, are forever barred, unless the claim is pending in the dis- trict or supreme court, unless peculiar circumstances entitle the claim- ant to equitable relief. § 2422. After the expiration of the time for filing the claims of the third of the above classes, the executors shall proceed to pay off all claims against the estate, in the order above stated, as fast as the means of so doing come into their hands. Removal. § 2496. After letters testamentary, or of administration with the will annexed, or of administration, shall have been granted to any person, he may be removed whenever the interests of the estate require it, for any of the following causes : 1. When by reason of, age, continued sickness, imbecility of mind, change of residence, or any other cause, he becomes incapable of discharging his trust in such manner as the interest and proper management of the estate may re- quire. 2. When any such executor or administrator shall fail or refuse APPENDIX OP SELECTED STATUTES. 633 to return inventories or accounts of sales of the estate, or to make re- ports of the condition of the estate ; or fail or refuse to comply with any order of the court ; or fail to seasonably apply to the court for authority to sell personal or real estate for the payment of debts or claims against the estate, when it shall be necessary for him to do so ; or faU or refuse to discharge any of the duties prescribed for him by law, or shall be guilty of any waste or mal-administration of the es- tate. 3. Where it shall be shown to the court by his sureties that such executor or administrator has become, or is likely to become insolvent, in consequence of which such sureties have suffered or will suffer loss. KANSAS. Compiled Laws, 1885. Exemption from Bond. § 2447. When, by the terms of any last will, the testator shall express a wish that his executor shall execute the same without giving bond, the court admitting the will to probate may, in its discretion, grant letters testamentary, with or without bond, as it may deem expedient ; and when granted without bond may, at any subsequent period, upon the application of any party in- terested, require bond to be given as provided in the preceding section. Residuary Legatee, Bond of. § 2448. If the executor is a resid- uary legatee, he may, instead of the bond prescribed in the second preceding section, give bond in a sum and with two or more sureties,, to the satisfaction of the court, with condition to pay all the debts and legacies of the testator ; in which case he shall not be required to return an inventory, but shall file a sworn statement of the amount of the indebtedness of said testator, so far as he can ascertain the same. Executor of Executor. § 2453. The executor of an executor shall have no authority, as such, to adlninister the estate of the first testator ; but on the death of the sole or surviving executor of any last will, administration of the estate of the first testator, not already administered, may be granted, with the will annexed, to such person as the court shall think proper to appoint. Order of Administration. § 2455. Administration of the estate of an intestate shall be granted to some one or more of the persons hereinafter mentioned, and they shall be respectively entitled thereto in the following order, to wit : 1. His widow, or next of kin, or both 634 APPENDIX OP SELECTED STATUTES. as the court may think proper ; and if they do not voluntarily either take or renounce the administration within thirty days after the death of the intestate, they shall, if resident within the county, upon appli- cation of any one interested, be cited by the court or judge for that purpose. 2. If the persons so entitled to administration are incom- petent, or evidently unsuitable for the discharge of the trust, or if they neglect, for twenty days after service of said citation, without any sufficient cause, to take administration of the estate, the court shall commit it to one or more of the principal creditors, if there be any competent and willing to undertake the trust. 3. If there be no such creditors, and the court is satisfied that the estate exceeds the value of one hundred dollars, the court shall commit administration to such other persons as it shall deem proper. Resignation. § 2464. The court issuing letters testamentary or appointing an administrator may, if it think proper, and upon good cause shown, receive the resignation of such executor or administrator, and appoint an administrator in his place. Removal. § 2466. When any executor or administrator shall, after being duly notified by a party in interest or cited by the court, neglect to render his accounts, and to settle his estate according to law ; or when any executor or administrator shall become insane or otherwise incapable of discharging his trust, or evidently unsuitable therefor ; or when the court shall be satisfied that such estate is not being administered for the advantage of the real parties in interest, or that any executor or administrator has or is abusing his trust in any respect, — it shall be the duty of the court, upon due hearing therefor had, to remove such executor or administrator, and the other executor or administrator, if there is any, may proceed in discharging the trust as if the executor or administrator so removed were dead ; and if there is no other executor or administrator to discharge the trust, the court may commit the administration of the estate not already ad- ministered to such person as may be deemed proper, in like manner as if the executor or administrator so removed were dead. Incompetency. § 2471. Letters testamentary and of administra- tion shall in no case be granted to a non-resident of this State ; and when an executor or administrator shall become a non-resident, the probate court having jurisdiction of the estate of the testator or in- testate of such executor or administrator, shall revoke his letters. ■Widow's Allowance. § 2492. In addition to her portion of her deceased husband's estate, the widow shall be allowed to keep, abso- APPENDIX OF SELECTED STATUTES. 635 lately, for the use of herself and children of the deceased, all personal property of the deceased which was exempt to him from sale and ex- ecution at the time of his death. Preferred Debts. § 2523. All demands against the estate of any deceased person shall be divided into the following classes : 1. Fun- eral expenses. 2. Expenses of the last sickness, wages of servants, and demands for medicines and medical attendance during the last sickness of the deceased, and the expenses of administration. 3. Debts due to the State. 4. Judgments rendered against the de- ceased in his lifetime ; but if any such judgments shall be liens upon the real estate of the deceased, and the estate shall be insolvent, such judgments as are liens upon the real estate shall be paid without reference to classification, except the classes of demands mentioned in the first and second subdivisions of this section shall have precedence of such judgments. 5. All demands, without regard to quality, which shall be legally exhibited against the estate within one year after the granting of the first letters on the estate. 6. All demands thus exhibited after the end of one year, and within two years after letters granted. 7. All demands thus exhibited after the expiration of two years, and within three years after granting of such letters. Limitation. § 2524. All demands not thus exhibited within three years shall be forever barred, saving to infants, persons of unsound mind, imprisoned, or absent from the United States, three years after the removal of their disabilities. § 2549. No executor or administrator, after having given notice of his appointment, as provided in this act, shall be held to answer to the suit of any creditor of the deceased, unless it be commenced within three years from the time of his giving bond. Sale of Real Estate. § 2557. As soon as the executor or ad- ministrator shall ascertain that the personal estate in his hands will be insufiicient to pay all the debts of the deceased, and the charges of administering the estate, he shall apply to the probate court for au- thority to sell the real estate of the deceased, or any interest he may have in any real estate, situated within this State, subject to the pay- ment of debts. 636 APPENDIX OP SELECTED STATUTES. KENTUCKY. General Statutes, 1883. Executor of Executor. Chap. 39, art. I. § 12. If there be no executor appointed by the will, or if all the executors therein named die, or refuse the executorship, or fail to give bond as required by law, which shall amount to such refusal, the court may grant administra- tion with the will annexed, to the person who would have been en- titled to administration if there had been no will. Competency of Married Woman. § 16. A married woman shall not be appointed executor or administrator. The marriage of a woman acting as such shall avoid the trust, and her husband shall not act as such in right of the wife. When the powers of one executor or administrator cease, the remainder may execute the trust, or if none, administration cZe lonis non may be granted, and if there be a will, with it annexed. Removal of Executor. § 19. If a personal representative shall reside out of the State, or become insane, or become otherwise in- capable to discharge the trust, or bankrupt, or insolvent, or in failing circumstances, the county court shall remove him, and the other repre- sentative shall discharge the trust ; but if he reside in the county of his appointment, or in an adjoining county, and is not a lunatic, he shall have ten days' notice before the order of removal is made ; if a lunatic, the notice must be given to his trustee, if he have one. Limitation of Time for taking Administration. Art. II. § 2. Original administration shall not be granted after the expiration of twenty years from the death of the testator or intestate. If so made, it shall be void. Order of Administration. § 3. The court having jurisdiction shall grant administration to the relations of the deceased who apply for the same, preferring the surviving husband or wife, and then such others as are next entitled to distribution, or one or more of them, whom the court shall judge will best manage the estate. § 4. If no such person apply for administration at the second county court from the death of an intestate, the court may grant administra- tion to a creditor, or to any other person, in the discretion of the court. If a will shall afterwards be produced and proved, the admin- istration shall cease, and the court may proceed to grant a certificate of the probate thereof, or, in the proper case, letters of administration with the will annexed. APPENDIX OF SELECTED STATUTES. 637 Preferred Debts. § 33. If the personal estate of a decedent be not sufficient to pay his liabilities, then the burial expenses of such de- cedent, and the costs and charges of the administration of his estate, and the amount of the estate of a dead person, or of a ward, or of a person of unsound mind, committed by a court of record to, and re- maining in the hands of a decedent, shall be paid in full before any fro rata distribution shall be made ; but this preference shall not extend to a demand foreign to this State. All other debts and liabili- ties shall be of equal dignity, and paid ratably in the administration of his estate ; and should more than the ratable share of any debt be paid, his personal representative shall only receive credit for its proper proportion. MAINE. Eevised Statutes, 1883. Limitations on Administration. Chap. 64, § 1. No administration shall be granted on the estate of any intestate deceased person, unless it appears to the judge that he left personal estate to the amount of at least twenty dollars, or owed debts to that amount, and left real estate of that value ; and when no administration is granted for want of such estate, the personal property of the deceased becomes the property of the widow, or, if none, of the next of kin, who are not in such case chargeable as executors in their own wrong. After twenty years from the death of any person, no probate of his last will, or ad- ministration on his estate, shall be originally granted, unless it appears that there are moneys due to said estate from the United States ; but this does not apply to foreign wills previously proved and allowed in another State or country. Appointment of Executors. § 6. When a will is proved and allowed, the judge of probate may issue letters testamentary thereon to the executor named therein, if he is legally competent, accepts the trust, and gives bond to discharge the same when required ; but if he refuses to accept on being duly cited for that purpose, or if he neglects for twenty days after probate of the will so to give bond, the judge may grant such letters to the other executors, if there are any capable and willing to accept the trust. Exemption from Bond. § 8. Letters testamentary may issue, or sales of real estate may be made under the provisions of a will, with- 638 APPENDIX OP SELECTED STATUTES. out the executor giving boud, or by bis giving one in a specified sum, when the wUl so provides ; but when it appears necessary or proper, the judge, on application of parties interested, may require him to give bond as in other cases. Residuary Legatee, Bond of. § 10. If such executor is a residu- ary legatee, the condition of his bond, instead of the preceding, shall be to return an inventory as aforesaid, and to pay all the debts and legacies of the testator, unless the estate from some unexpected event should prove insufficient therefor. Order of Administration. § 17. Upon the death of any person intestate, the judge having jurisdiction shall grant administration of such intestate's goods or estate to the widow, husband, next of kin, or husband of the daughter of the deceased, or to two or more of them, as he thinks fit, if the applicants are more than twenty-one years old, and are in other respects qualified for the trust ; but if un- suitable, or, being residents in the country, they after due notice neglect or refuse for thirty days from the death of the intestate to take out letters of administration, he may commit administration on such estate to such person or persons as he deems suitable. Civiliter mortuus. § 18. When any person is imder sentence of death or of imprisonment for life, and is confined in pursuance there- of, he is, from the time of such imprisonment, to all intents and pur- poses, civilly dead; and his estate shall be administered upon and distributed, and his contracts and relations to persons and things are affected, in all respects, as if he were dead. Administration cum testamento annezo. § 20. If there is no person whom the judge can appoint executor of any will according to section six, or if the only one appointed neglects to file the required bond within the time therein allowed, he may commit administration of the estate, with the will annexed, to such person as he might ap- point if the deceased had died intestate ; and when an executor is under twenty-one years of age at the time of the probate of the will, administration may be granted, with the will annexed, during his minority, 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, when he may be admitted as joint- executor with the former, upon giving bonds as before provided. Removal of Executor or Administrator. § 21. When an execu- tor or administrator, residing out of the State, after being cited by the judge of probate, neglects to render his accounts and settle the APPENDIX OP SELECTED STATUTES. 639 estate according to law, or when any executor or administrator, joint or sole, becomes insane or otherwise unsuitable to perform the trust, refuses or neglects to do so, or mismanages the estate, said judge may remove him ; and he may accept the resignation of any joint or sole executor or administrator, when he is satisfied, after pablic or per- sonal notice to those interested and a hearing, that there is reasonable cause therefor, and that it wUl not be detrimental to the estate or to those interested therein ; and in either case, if there is no other ex- ecutor or administrator to discharge the trust, the judge may commit administration of the estate not already administered, with the will annexed, or otherwise, as the case requires, to such persons as he thinks fit, as it the one resigned or removed were dead ; and such administrator shall have the same powers and be liable to the same obligations as other administrators or executors whom he succeeds. Competency of Married 'Woman as Executrix. § 22. When an unmarried woman, who is joint or sole executrix or administratrix, marries, her husband shall not exercise such trust in her right, but her authority is thereby extinguished ; and the other executor or admin- istrator, if any, may proceed in discharging the trust, as if she were dead. If there is no other, administration, with the will annexed or otherwise, may be granted, as provided in the preceding section. Executor of an Executor. § 23. The executor of an executor has no authority as such to administer the estate of the first testator ; but on the death of the sole or surviving executor of any last will, administration of said estate not already administered may be granted, with the will annexed, to such person as the judge thinks fit. Executors de son tort. § 37. Whoever sells or embezzles any of the goods or effects of a deceased person liable to administration, before taking out letters testamentary or of administration thereon and giving bond accordingly, is liable as an executor in his own wrong to the actions of the creditors and other persons aggrieved, and also to the rightful executor or administrator for the full value of the goods or effects of the deceased taken by him, and for all damages caused by his acts to said estate, and he shall not retain any part of the goods or effects, except for such funeral expenses, debts of the de- ceased, or other charges actually paid by him, as the rightful execu- tor or administrator would have had to pay. Notice of Appointment. § 38. Every executor or administra- tor, within three months after giving bond for discharge of bis trust, shall cause notice of his appointment to be posted in two or more 640 APPENDIX OP SELECTED STATUTES. public places, to be specified by the judge, in the town where the de- ceased last dwelt, if in the State, and shall give such further notice as the judge in writing directs. Agent of Executor. § 41. Executors or administrators residing out of the State at the time of giving notice of their appointment, shall appoint an agent or attorney in the State, and insert his name and address in such notice. Demand or service made on such agent or attorney binds the principals and the estate in their care as if made on themselves. Inventory. § 43. Every executor or administrator, within three months after his appointment, or within such further time, not ex- ceeding three months, as the judge allows, shall make and return upon oath into the probate court a true inventory of the real estate and of all the goods, chattels, rights, and credits of the deceased which are by law to be administered and which come to his possession or knowledge. § 47. The judge may, at any time afterward, when any estate or effects, rights, or credits come to the knowledge or possession of any executor or administrator, require of him an additional inventory ; "appraisers in like manner shall be appointed and sworn ; and return shall be made within the time directed by the judge in his warrant. "Widow's Allowance. § 48. The following articles shall be omitted in making the inventory, and shall not be administered upon as assets : — 1. All the articles of apparel or ornament of the widow, according to the degree and estate of her husband, and the apparel and school- books of minor children of the deceased. 2. The apparel of the de- ceased not exceeding one hundred dollars in value, if he left a widow and minor children, or either, in which she or they are entitled to such apparel. 3. Such provisions and other articles, not exceeding 'fifty dollars in value, as have necessarily been consumed in the family of the deceased before the appraisal of such estate. 4. Any money becoming due on the death of the deceased from an insurance on his life effected by him, after deducting the amount of premium paid therefor within three years, with interest, provided that such deceased left a widow or issue ; but such money shall be disposed of as pro- vided by section ten of chapter seventy-five. Accounts. § 51. Every executor or administrator shall account for the personal property and effects named in the inventory at the appraised value, unless sold under license as provided in the preceding APPENDIX OP SELECTED STATUTES. 641 section ; but in case of credits and rights to property not in possession, if loss accrues without his fault or negligence, he may be allowed the amount of such loss in his account of administration ; and if any goods or effects not sold under license, allowed to the widow, nor distributed to the heirs or devisees, are shown to be of greater value than they were appraised at, he shall account for the difference. § 56. Every executor and administrator is chargeable in his ac- count with all goods, chattels, rights, and credits of the deceased, which come to his hands, and are by law to be administered, whether included in the inventory or not, with all the proceeds of real estate sold for the payment of debts, legacies, and incidental expenses, and with all the interest, profit, and income that in any way come to his hands in his said capacity from any estate of the deceased. § 57. If any part of the real estate is used or occupied by the ex- ecutor or administrator, he shall account for the income thereof to the devisees or heirs in the manner ordered by the judge, with the assent of the accountant, and of other parties present at the settle- ment of his account ; and if the parties do not agree on the sum to be allowed, it shall be determined by three disinterested persons, ap- pointed for that purpose by the judge, whose award, accepted by the judge, shall be final. Payment of Debts. Chap. 66, § 1. Insolvent estates. [Same as Massachusetts.] § 2. When an estate is not sufficient to pay more than such ex- penses, and claims of the first four classes, the administrator is exon- erated from payment of any claim of the fifth class, without making a representation of insolvency. Estates of deceased Partners, Chap. 69, § 1. The executor or administrator of a deceased member of a partnership shall include in the inventory the property of the partnership, appraised as in other cases, except that an amount is to be carried out equal only to the share of the deceased. This property shall be retained and administered, unless the surviving partner gives bond to the judge as provided in the following section : — § 2. The bond shall be for such sum and with such sureties as the judge approves, conditioned to use fidelity and due diligence in closing the affairs of the late partnership ; to apply the property thereof towards payment of partnership debts ; to render an account, on oath, when required, of all partnership affairs, including property owned, debts to and from, the amount received and collected, and the amount 41 642 APPENDIX OP SELECTED STATUTES. paid ; and to pay to the executor or administrator of the deceased his proportion of any balance remaining after settlement, within one year after date of the bond, unless a longer time is allowed by the judge. § 4. If the survivor, on being cited, does not give the bond re- quired, the executor or administrator of the deceased shall give such bond, with the necessary variations, as is required in section two, and take possession of the property. He may use the name of the sur- vivor to collect the debts. § 5. Every surviving partner shall exhibit to the executors or ad- ministrators of a deceased partner for appraisal all partnership prop- erty existing at the time of his decease ; and if such executors or administrators administer upon the partnership property, shall deliver it to them, with all books, notes, documents, and papers pertaining thereto, and shall afford them all reasonable information and facilities for the execution of their trust. If he neglects to do so, the judge^ after citing him to show cause, may enforce obedience by committing him until he complies, or is released by the executors or administra- tors, or by order of the supreme judicial court. § 7. The executor or administrator of a deceased member of a co- partnership, or the surviving partner, who flies a bond and is author- ized to close the affairs of a partnership estate, may, on application to the probate judge of the county, be licensed to sell real estate, as- sets of the late partnership, in the same manner as any other executor or administrator is licensed to sell real estate, on petition and notice, and on giving bond, with sufficient sureties, to appropriate the pro- ceeds to the payment of the partnership debts, and to pay over any balance that remains in his hands after closing the affairs of said partnership estate to the persons entitled to the same, and on taking the oath and complying with all the requirements of the law authoriz- ing a sale of real estate. § 8. When the person who has given bond to administer on a part- nership estate where one of the partners is deceased, dies before com- pleting the administration, the judge may commit administration on the estate of the partnership not already administered, to such person as he thinks fit, who shall give the bond required by section two, with the necessary variations, and comply with all the provisions of this chapter applicable to such cases. Sales of Real Estate. Chap. 71, § 1. Judges of probate, in the counties where the applicants hereinafter named were appointed, may APPENDIX OP SELECTED STATUTES. 643 license the sale, lease, or exchange of real estate and any interests therein, in whatever county situated, in the following cases, on appli- cation (1) of executors or administrators for power to sell so much of such estate of the deceased as is necessary to pay debts, legacies, and expenses of sale and of administration ; (5) of executors or adminis- trators to sell wood and timber standing on the real estate of their testator or intestate, for payment of debts, when it clearly appears to the judge to be for the advantage of those interested in the estate ; (8) of executors or administrators to sell real estate held in mortgage, or taken on execution, and the right of redemption foreclosed, when it appears to be for the benefit of the parties in interest ; and to dis- tribute the proceeds as in other cases of personal estate. § 3. All sales aforesaid shall be at public auction, except as here- inafter provided, and the decision of the judge on such applications may be appealed from, as in other cases ; and the supreme judicial court shall have original and concurrent jurisdiction with the probate court in all cases aforesaid. § 6. No license shall be granted for the sale of any such real estate of the value of more than fifty dollars, unless by written consent of all persons interested therein, until after public or personal notice of the time and place of hearing, to all such persons, and to appear and object if they see cause. If any party interested resides without the State, such special notice may be given as the court directs. § 12. In all cases where the courts may license a person to sell real estate at auction, they may license him to sell from time to time at private sale, or to accept any advantageous offer for such estate or any part of it, and to convey the same accordingly, if it appears to be for the interest of all concerned ; but when so licensed, he may sell at auction, by complying with all the requirements of law for sales at auction, and with the particular conditions of his license ; and he shall be sworn and give bond as if he were licensed to sell at auction ; and the court shall decide what notice, if any, shall be given of such sale, and if any is required, it shall be inserted in the license and given accordingly. 644 APPENDIX OP SELECTED STATUTES. MAEYLAND. Eevised Code, 1878. Incompetency. Art. 50, § 60. If any person named as executor in a will shall be at the time when administration ought to be granted under the age of eighteen years or of unsound mind, incapable accord- ing to law of making a contract, or convict of any crime rendering him infamous according to law, or if any person named as executor shall not be a citizen of the United States, letters testamentary or of administration (as the case may require) may be granted in the same manner as if such person had not been named in the wUl. § 66. No married woman shall be entitled to letters testamentary, but the same, or letters of administration, shall be granted in the same manner as if she had not been named in the will, unless her husband, with two sureties, give bond as aforesaid for her faithful performance, and the bond of any executrix who is unmarried and above eighteen, given as aforesaid, shall be binding in the same man- ner as if she were of the full age of twenty-one years. § 74. The qualifications of an administrator shall, in all respects, be the same as herein prescribed for an executor, and all questions touching such qualifications shall be tried and determined by the same proofs and in like manner. Order of Administration. § 78. If the intestate leave a widow and a child, or children, administration at the discretion of the court shall be granted either to the widow or child, or one of the children. § 79. If there be a widow arid no child, the widow shall be pre- ferred, and next to the widow or children, a grandchild shall be preferred. § 80. If there be neither widow, nor child, nor grandchild, the father shall be preferred. § 81. If there be neither widow, nor child, nor grandchild, nor father, brothers and sisters shall be preferred, and next to brothers and sisters the mother shall be preferred. § 82. If there be neither widow, nor child, nor grandchild, nor father, nor brother, nor sister, nor mother, the next of kin shall be preferred. § 83. Males shall be preferred to females in equal degree of kin. § 84. Relations of the whole blood shall be preferred to those of the half blood in equal degree, and relations of the half blood shall be preferred to relations of the whole blood in a remoter degree. APPENDIX OP SELECTED STATUTES. 645 § 85. Relations descending shall be preferred to relations ascending in the collateral line ; that is to say (for example), a nephew shall be preferred to an uncle. § 86. None shall be preferred in the ascending line beyond a father or mother, or in the descending line below a grandchild. § 87. A feme sole shall be preferred to a married woman in equal degree. § 88. Where a female is entitled, administration may be granted to her and her husband, provided he be capable. § 89. Relations on the side of the father shall be preferred to rela- tions on the side of the mother in equal degree. § 90. If there be no relations, administration shall be granted to the largest creditor applying for the same. § 91. If there shall be neither hnsband, nor wife, nor child, nor grandchild, nor father, nor brother, nor sister, nor mother, or if these be incapable, or decline, or refuse to appear on proper summons or notice, or if other relations and creditors shall neglect to apply, ad- ministration may be granted at the discretion of the court. Minority Administration. §104. AAxomi&tYBAvya durante minori- tate of an executor may be granted by the Orphans' Court of the county wherein letters testamentary should be granted, and such administration shall last until the executor shall attain to the age of eighteen years. Administration de bonis non. § 107. If an executor or adminis- trator shall die before administration is completed, letters de bonis non, or de bonis non cum testamento annexo, may be granted at the discre- tion of the court, giving preference, however, to the person entitled, if he shall actually apply for the same. Eze.cutor of Executor. § 108. In no case shall the executor of an executor be entitled as executor to administration de bonis non of the first deceased. Payment of Debts. § 118. No administrator who shall, after the lapse of one year from the date of his letters, have paid away assets to the discharge of just claims, shall be answerable for any claim of which he had no notice, by an exhibition of the claim legally authen- ticated ; Provided, that at least six months before he shall make dis- tribution, he shall have caused to be inserted in so many newspapers as the Orphans' Court may direct, an advertisement as follows, or fully to the following effect, viz. : " This is to give notice, that the subscriber, of , hath obtained from the Orphans' Court of 646 APPENDIX OP SELECTED STATUTES. county, in Maryland, letters testamentary (or of administration) on the personal estate of , late of , deceased. All persons hav- ing claims against the deceased are hereby warned to exhibit the same, with the vouchers thereof legally authenticated, to the sub- scriber, on or before the day of next ; they may otherwise by law be excluded from all benefit of said estate. Given under my hand this day of ." ■Widoiv'^ AUo'wances. § 142. Whenever the decedent shall leave a widow, or child, or grandchild, his wearing apparel shall be exempt from appraisement, and shall belong to the child or children of the decedent, and if no chOd or children, to the grandchildren, and if there be neither child nor grandchildren, to the widow of the de- cedent, and his administrator shall divide the same among them (if there be more than one entitled) as he may think equitable and proper ; but wearing apparel shall not include watches or jewelry of any description. § 143. The provisions which at the death of any decedent shall have been laid up for the consumption of his family, on his home or mansion-house farm, shall not be sold or included in the inventory of his estate, but shall remain for the use of the family of such decedent. Stat. 1884, chap. 107, § 1. Be it enacted by the General Assembly of Maryland, That section two hundred and ninety-one of article ninety-three of the Code of Public General Laws, title " Testa- mentary Law," and section two hundred and ninety-two of said article, as repealed and re-enacted by the act of eighteen hundred and sixty-two, chapter one hundred and one, be and the same is hereby repealed and re-enacted so as to read as follows : — Section Two Hundred and Ninety-one. In all cases where admin- istration shall have been, or shall hereafter be granted upon the es- tate of any married man who has left a widow and an infant child or infant children surviving him, the said child or children of the said widow shall be entitled to an allowance of the personal estate remain- ing after the payment of funeral expenses, for her own use and that of the said infant children, of the sum of one hundred and fifty dollars, to be paid to her in money or in articles of household and kitchen furniture at their appraised value as she may elect. Section Two Hundred and Ninety-two. If the decedent leave a widow and no infant child or children surviving him, the widow shall be in like manner entitled to an allowance of seventy-five dollars in APPENDIX OP SELECTED STATUTES. 6ii money or its equivalent in household and kitchen furniture, as pro- vided for in the foregoing section. Payment of Debts. § 149. No administrator shall discharge any claim against his decedent (otherwise than at his own risk), unless the same be first passed by the Orphans' Court granting the administra- tion, or imless the said claim shall be proved according to the following rules. Preferred Debts. § 173. In paying the debts of a decedent, an administrator shall observe the following rules : All taxes due and in arrear from the decedent shall be preferred, to the exclusion of all other debts, and claims for rent in arrear against any deceased per- sons, for which a distress might be levied by law, shall next have preference. Judgments and decrees shall next be wholly discharged. After such claim for taxes and rent, and judgments and decrees, shall be satisfied, all other just claims shall be on an equal :(ooting without priority or preference. If there be not sufficient to discharge all such judgments and decrees, a proportionate dividend shall be made be- tween the judgment and decree creditors. MASSACHUSETTS. Public Statutes, 1882. Appointment of Executors. Chap. 129, § 2. When a will has been duly proved and allowed, the probate court shall issue letters testamentary thereon to the executor named therein, if he is legally competent and accepts the trust and gives bond to discharge the same ; otherwise the said court shall grant letters of administration on the estate as provided in chapter one hundred and thirty. Renunciation. Chap. 1"29, § 3. If a person named as executor in a wUl has deceased or refuses to accept the trust, or, after being duly cited for the purpose, neglects for twenty days after the probate of the wUl to appear and give bond according to law, the court shall grant letters testamentary to the other executors, if there are any competent and willing to accept the trust. Minority of Executor. Chap. 129, §' 4. When a person named as executor in a will is at the time of the probate thereof under the age of twenty-one years, the other executor or executors, if any, shall administer the estate until the minor arrives at full age, when, upon 648 APPENDIX OP SELECTED STATUTES. giving bond according to law, he may be admitted as a joint executor of such will. Chap. 130, § 7. "When a person who has been appointed executor is at the time of the probate of the will under the age of twenty-one years, administration with the will annexed may be granted during his minority, unless there is another executor who accepts the trust. Bond of Residuary Legatee. Chap. 129, § 6. If it appears that the bond prescribed by the preceding section is not necessary for the protection of any person interested in the estate, the court may permit an executor who is. residuary legatee, instead of giving such bond, to give bond in a sum and with sureties to the satisfaction of the court, and with condition to pay all debts and legacies of the testator and such sums as may be allowed by the court to the widow or minor children for necessaries ; and in such case the executor shall not be required to return an inventory. § 7. The giving of the bond provided for in the preceding section shall not discharge the lien on the real estate of the testator for the payment of his debts, except on such part as may be sold by the ex- ecutor to one who purchases in good faith and for a valuable consid- eration ; and all estate not so sold may be taken on execution by a creditor not otherwise satisfied, in like manner as if a bond had been given in the other form. Exemption from Sureties on Bond. Chap. 129, § 8. An execu- tor shall be exempt from giving a surety on his bond when the tes- tator has ordered or requested such exemption, or that no bond should be taken ; or when all the persons interested in the estate who are of full age and legal capacity, other than creditors, certify to the court their consent thereto ; but not until all creditors of the estate and the guardian of any minor interested therein have been notified, and have had opportunity to show cause against the same. The court may, however, at or after the granting of letters testamentary, require bond with sufficient surety or sureties, if it is of opinion that such bond is required by a change in the situation or circumstances of the executor or for other sufficient cause. Stat. 1885, chap. 274, § 1. An administrator of an intestate estate, or an administrator with the will annexed, shall be exempt from giving a surety or sureties on his bond, when all the persons interested in the estate, who are of full age and legal capacity, other than creditors, certify to the probate court their consent thereto ; but not until all the creditors of the estate, and the guardian of any minor interested APPENDIX OP SELECTED STATUTES. 649 -therein, have been notified and have had opportunity to show cause against the same ; but such administrator shall in all cases give his own personal bond, with conditions as prescribed by law : Provided, that the probate court may at or after the granting of letters of administration require a bond, with sufficient surety or sureties, if it is of opinion that such bond is required by a change in the situation or circumstances of such administrator, or for other sufficient cause. § 2. Every administrator who neglects to give bond, with surety or sureties, when required by the probate court within such time as it directs, in accordance with this act, shall be considered to have declined or resigned the trust. § 3. This act shall take effect upon its passage. Hzecutor of Executor. Chap. 129, § 10. The executor of an ex- ecutor shall not, as such, administer on the estate of the first testator. Order of Administration. Chap. 130, § 1. Administration of the estate of an intestate shall be granted to one or more of the persons hereinafter mentioned, and they shall be entitled thereto as follows : 1. The widow of the deceased or his next of kin, or the widow jointly with the next of kin, as the probate court may deem fit. 2. If the deceased was a married woman, administration of her estate shall in all cases be granted to her husband, if he is competent and willing to undertake the trust, unless the deceased has made some testamentary or other disposition of her estate which renders it neces- sary or proper to appoint some other person. 3. If all said persons are incompetent or evidently unsuitable for the discharge of the trust, if they renounce the administration, or if, without sufficient cause, and after having been cited by the court for the purpose, they neglect for thirty days after the death of the intes- tate to take administration of his estate, such administration shall be granted to one or more of the principal creditors. 4. If there is no such creditor willing and competent to undertake the trust, administration may be granted to such person as the court may deem fit. 5. If there is no widow, husband, or next of kin, within the Com- monwealth, administration shall be granted to a public administrator in preference to creditors. Limitation of Time of Administration. Chap. 130, § 3. Admin- istration shall not be originally granted after the expiration of twenty years from the death of the testator or intestate, except in cases ex- pressly authorized by law. 650 APPENDIX OP SELECTED STATUTES. § 4. When admiuistration has not been taken on the estate of an intestate within twenty years after his decease, if thereafter any prop- erty accrues to said estate, or belonging thereto, then first comes to the knowledge of any person interested therein, original administra- tion may be granted on such property at any time within five years next after it so accrues or becomes known, but such administration shall afiect no other property. Stat. 1885, chap. 242, § 1. Section four of chapter one hundred and thirty of the Public Statutes is amended so as to read as follows : Section 4. When administration has not been taken on the estate of an intestate within twenty years after his decease, if any property, or claim or right thereto, belongs or thereafter accrues to such estate, and remains to be administered, the probate court may, for good cause shown, grant original administration on such property ; but such administration shall affect no other property. § 2. This act shall take effect upon its passage. ■When Will is proved, after Administration granted. Chap. 130, § 5. If, after the granting of letters of administration as upon an in- testate estate, a will of the person deceased is duly proved and allowed, such letters shall be revoked ; and the executor or an administrator with the will annexed may demand, collect, and sue for all the per^ gonal estate of the deceased which remains unadministered. Administration with "Will annexed. Chap. 130, § 6. If there is no executor named in a will, or if all the executors therein named are dead or incompetent or refuse to accept the trust, or if, after being duly cited for the purpose, they neglect for twenty days after the pro- bate of the will to appear and give bond according to law, the court shall commit administration of the estate, with the will annexed, to such person as would have been entitled thereto if the deceased had died intestate ; but after the expiration of said twenty days, and before letters of administration with the will annexed have been granted, the court may grant letters testamentary to any person named as executor who gives the bond prescribed by law. Administration de bonis non. Chap. 130, § 9. When a sole or surviving executor or administrator dies, resigns, or is removed be- fore having fully administered an estate, if there is personal estate of the deceased not administered to the amount of twenty dollars, or debts to that amount remaining due from the estate, or anything re- maining to be performed in execution of the will, the probate court shall grant letters of administration, with the will annexed or other- APPENDIX OF SELECTED STATUTES. 651 wise as the case may require, to some suitable person to administer the goods and estate of the deceased not already administered. Special Administration. Chap. 130, § 10. When by reason of delay in granting letters testamentary or of administration, or when for any other cause the judge of the probate court deems it expedient to do so, he may, at any time and place, and with or without notice to the parties interested, appoint a special administrator to collect and preserve the effects of the deceased, and in case of an appeal from the decree appointing him, such special administrator shall nevertheless pro- ceed in the execution of his duties until it is otherwise ordered by the supreme court of probate. Every such appointment shall be entered forthwith on the records of the court. § 12. Such special administrator shall collect all the personal estate of the deceased, and shall preserve the same for the executor or ad- ministrator when appointed, and for that purpose may commence and maintain suits, and he may sell such perishable and other goods as the court may order to be sold. If he is appointed by reason of delay in granting letters testamentary, the court may authorize him to take charge of the real estate of the deceased or of any part thereof, and to collect the rents, make necessary repairs, and do all other things which it may deem needful for the preservation of such real estate and as a charge thereon. He shall be allowed such compensation for his services as the court may deem reasonable. § 16. Upon the granting of letters testamentary or of administra- tion the powers of the special administrator shall cease, and he shall forthwith deliver to the executor or administrator all the estate of the deceased in his hands, and the executor or administrator may be admitted to prosecute a suit commenced by the special administrator in like manner as an administrator de bonis non may prosecute a suit commenced by a former executor or administrator. Public Administrators. Chap. 131, § 1. There shall be in each county one or more public administrators, appointed by the governor with the advice and consent of the council, and who shall hold office during the pleasure of the executive. § 2. Such administrators shall, except as hereinafter provided, take out letters of administration and faithfully administer upon the estates of persons who die intestate within their county or elsewhere, leaving property in such county to be administered, and not leaving a known husband, widow, or heir in the Commonwealth. § 3. Administration shall not be granted to a public administrator 652 APPENDIX OF SELECTED STATUTES. when the husband, widow, or an heir of the deceased, in writing, claims the right of administration, or requests the appointment of some other suitable person to the trust, if such husband, widow, heir, or other person accepts the trust and gives the bond required. Notice of Appointment. Chap. 132, § 1. Every executor and administrator shall, within three months after giving bond for the discharge of his trust, cause notice of his appointment to be posted in two or more public places in the city or town in which the deceased last dwelt ; or he may be required by the probate court to give notice by publication in some newspaper, or in such other manner as the court, taking into consideration the business of the deceased and the circumstances of his estate, may direct. § 2. An affidavit of the executor or administrator, or of a person employed by him to give such notice, being filed and recorded with a copy of the notice in the registry of probate within one year after the giving of bond as aforesaid [or such an affidavit made afterwards by any person, and filed and recorded with such copy by permission of the court upon satisfactory evidence that the notice was given as or- dered], shall be admitted as evidence of the time, place, and manner in which the notice was given. Repealed 1888, c. 148 ; restored, except as to the " afterwards," 1888, c. 380. Inventory. Chap. 132, § 5. Every executor, except one who gives bond under section six of chapter one hundred and twenty-nine, and every administrator shall within three months after his appointment make under oath and return to the probate court a true inventory of the real and personal estate of the deceased which at the time of the making of such inventory shall have come to his possession or knowledge. § 6. The estate and effects comprised in the inventory shall be ap- praised in any county by three suitable disinterested persons appointed by the probate court, or a disinterested justice of the peace may ap- point such appraisers of any part of the estate which may be in the county in which such justice resides. The appraisers shall be sworn to the faithful discharge of their duties. Ezecutors out of State. Chap. 132, § 8. Every executor or ad- ministrator appointed in, but residing out of, the Commonwealth, shall, before entering upon the duties of his trust, in writing appoint an agent residing in the Commonwealth, and shall by such writing stipu- late and agree that the service of any legal process against him as such executor or administrator, if made on said agent, shall be of the APPENDIX OP SELECTED STATUTES. 663 same legal effect as if made oa himself personally within the Common- wealth. Such writing shall give the proper address of such agent, and shall he filed in the registry of probate, and the notice of appointment of such executor or administrator shall state the name and address of his agent. § 9. Every executor or administrator removing from or residing out of the Commonwealth, having been appointed herein, shall in writing appoint a like agent with like stipulations, and shall cause such writing to be filed in the registry of the probate court which appointed him. § 12. Neglect or refusal on the part of an executor or administrator to comply with any requirement of the four preceding sections may be deemed good cause for his removal. § 13. Service of any legal process upon an agent appointed under the preceding provisions shall be of the same legal effect as if made upon his principal when in the Commonwealth. Removal and Resignation. Chap. 132, § 14. When an executor or administrator residing out of the Commonwealth, having been duly cited by the probate court, neglects to render his accounts and to set- tle the estate, or when an executor or administrator becomes insane or otherwise incapable of discharging the trust, or evidently unsuitable therefor, the probate court may remove him ; and thereupon the other executor or administrator, if there is any, may proceed in discharging the trust as if the one removed were dead, or, if there is no other ex- ecutor or administrator, the court may appoint an administrator as provided in section nine of chapter one hundred and thirty. § 15. When an executor or administrator is removed, or when letters of administration are revoked, all previous sales, whether of real or- personal estate, made lawfully by the executor or adminis- trator and with good faith on the part of the purchaser, and all other lawful acts done by such executor or administrator, shall remain valid and effectual. § 16. An executor or administrator may upon his request be al- lowed to resign his trust, when it appears to the probate court to be proper to allow him so to do. Executors de son tort. Chap. 132, § 17. Whoever injuriously intermeddles with any personal estate of a deceased person, without being thei-eto authorized by law, shall be liable as an executor in his own wrong to the persons aggrieved. § 18. Every executor in his own wrong shall be liable to the right- 654 APPENDIX OP SELECTED STATUTES. ful executor or administrator for the full value of the personal estate of the deceased taken by him, and for all damages caused by his acts to such estate ; and he shall not be allowed to retain or deduct any part of such estate, except for funeral expenses or debts of the de- ceased or other charges actually paid by him, and which the rightful executor or administrator might have been compelled to pay. Mortgage, Personal Property. Chap. 133, § 6. When a mortgagee of real estate, or an assignee of such a mortgagee, dies without having foreclosed the right of redemption, the mortgaged premises and the debt secured thereby shall be considered as personal assets in the hands of his executor or administrator, and shall be administered and accounted for as such ; and if the deceased has not in his lifetime ob- tained possession of the mortgaged premises, his executor or adminis- trator may take possession thereof by open and peaceable entry or by action, in like manner as the deceased might have done if living. Lands taken on Execution. § 8. "When an executor or adminis- trator recovers judgment for a debt due to the deceased, and levies the execution on real estate, he shall be seized of such real estate in trust for the persons who would have been entitled to the money if the judgment had been satisfied in money ; and the estate so taken on execution shall be considered as personal assets in his hands, and if redeemed, the money shall be received by the executor or administrar tor, who shall thereupon release the estate. Sales of Land. Chap. 134, § 1. When the personal estate of a deceased person is insufficient to pay his debts and legacies with the charges of administration, his executor or administrator shall, for the purpose of making such payment, sell his real estate in the manner hereinafter provided, and the proceeds of any such sale shall be con- sidered as assets in the hands of the executor or administrator in like manner as if they had originally been part of the personal estate of the deceased. § 2. The real estate so liable to be sold shall include all lands of the deceased, all rights of entry and of action, and all other rights and interests in lands, which by law would descend to his heirs, or which would have been liable to attachment or execution by a creditor of the deceased in his lifetime ; but the title passed by any such sale shall be subject to the right of dower of the wife or to the right of curtesy of the husband of the deceased, and no claim by entry or by action to lands fraudulently conveyed by the deceased shall be made unless within five years after the decease of the grantor. APPENDIS OF SELECTED STATUTES. 655 § 4, A license to an executor or administrator to sell the real estate of a deceased person may be granted by the supreme judicial court or superior court in any county, or by the probate court from which the letters testamentary or of administration issued. § 9. License shall not be granted until notice of the petition and of the time and place appointed for hearing the same has been given by serving such notice personally on all persons interested in the estate at least fourteen days before the time appointed for the hearing, or by publication three weeks successively in such newspaper as the court shall order. § 10. License shall not be granted if any of the persons interested in the estate give bond to the executor or administrator, in a sum and with sureties approved by the court, and with condition to pay, so far as the personal estate of the deceased shall be insufficient therefor, all legacies mentioned in the petition, all debts therein mentioned that shall eventually be found due from the estate, and the charges of administering the estate. § 11. If the facts set forth in the petition are proved, and no suffi- cient cause is shown to the contrary, the court shall grant a license to the executor or administrator, which shall authorize him to sell by public auction and to execute conveyances which shall be effectual to pass to the purchaser all the estate, right, title, and interest which the deceased had in the granted premises at the time of his death, or which was then chargeable with the payment of his debts. 1886, chap. 137, § 1. "When it appears by the petition of an ex- ecutor or administrator for a license to sell the real estate of the deceased and upon a hearing on such petition, that an advantageous offer for the purchase thereof has been previously made to the peti- tioner, and that the interest of all parties concerned will be best pro- moted by an acceptance of such offer, the court having jurisdiction of such petition may authorize a sale and conveyance at private sale, in accordance with such offer, or upon such terms as may be adjudged best, but an executor or administrator so authorized to sell real estate at private sale may notwithstanding sell such estate by public auction if he deems it best so to do, in accordance with the provisions of chap- ter one hundred and thirty-four of the Public Statutes. § 2. License shall not be granted until notice of the petition, and of the time and place appointed for hearing the same, has been given by serving such notice personally on all persons interested in the estate, at least fourteen days before the time appointed for the hearing, or by 656 APPENDIX OF SELECTED STATUTES. publication three weeks successively in such newspaper as the court shall order. § 3. This act shall take effect upon its passage. Pub. Sts. c. 134, § 12. The executor or administrator shall give public notice of the time and place of the sale by causing notifications thereof to be posted, thirty days at least before the sale, in some pub- lic place in the city or town where the lands lie, and in two adjoining cities or towns, if there are so many in the county, or, if the court granting the license so orders, by publishing the notice three weeks successively in a newspaper. § 16. An executor or administrator appointed in another State or in a foreign country on the estate of a person dying out of the Com- monwealth, upon whose estate there is no executor or administrator appointed in the Commonwealth, may file an authenticated copy of his appointment in the probate court for any county in which there is real estate of the deceased ; after which he may be licensed by such probate court, or by the supreme judicial court or superior court in any county, to sell real estate for the payment of debts, legacies, and charges of administration, in the same manner and upon the same terms and con- ditions as are prescribed in the case of an executor or administrator appointed in this Commonwealth, except as hereinafter provided. § 18. Every foreign executor or administrator licensed to sell real estate shall give notice of the time and place of sale, and otherwise proceed as is prescribed for an executor or administrator appointed here when making such sale ; and the evidence of such notice may be perpetuated in the same manner. Mortgages of Laud. §19. The probate court having jurisdiction of the estate of a deceased person may on petition and after notice to all persons interested, if upon a hearing it appears to be for the benefit of such estate, authorize an executor or administrator with the will an- nexed to mortgage any real estate of the testator for the purpose of paying debts, legacies, or charges of administration, or for the pur- pose of paying an existing lien or mortgage on the estate of the tes- tator ; or it may authorize such executor or administrator to make an agreement for the extension or renewal of such an existing mortgage ; and said court may in like manner authorize an administrator of the estate of an intestate to mortgage any real estate of such intestate for the purpose of raising money to pay debts or to remove liens existing thereon if all the heirs of the intestate or their guardians assent thereto in writing. APPENDIX OP SELECTED STATUTES. 657 § 20. The petition shall in every such case set forth a description of the estate to be mortgaged, the amount of money necessary to be raised, and the purposes for which such money is required, and the decree of the court upon such petition shall fix the amount for which the mort- gage may be given and the rate of interest which may be paid thereon, and may order the whole or any part of the money secured by the mortgage to be paid from time to time out of the income of the premises mortgaged. Chap. 142, § 6. A mortgage given by an executor, administrator, guardian, or trustee, by license of court, may contain a power of sale, and every such mortgage shall set forth the fact that it is made under license of court and the date of such license. "Widow's Allowance. Chap. 135, § 1. The articles of apparel and ornament of the widow and minor children of a deceased person shall belong to them respectively. § 2. Such parts of the personal estate of a deceased person as the probate court, having regard to all the circumstances of the case, may allow as necessaries to his widow, for herself and for his family under her care, or, if there is no widow, to his minor children, not exceeding fifty dollars to any child, and also such provisions and other articles as are necessary for the reasonable sustenance of his family, and the use of his house and of the furniture therein for forty days after his death, shall not be taken as assets for the payment of debts, legacies, or charges of administration. Payment of Debts. Chap. 135, § 3. "When a person dies possessed of personal estate not lawfully disposed of by will, it shall be applied and distributed as follows : 1. The personal estate remaining after the allowances to the widow and children mentioned in the preceding sec- tions shall be applied to the payment of the debts of the deceased, with the charges of his funeral and of the settlement of his estate. Chap. 136. § 1. No executor or administrator shall be held to answer to a suit by a creditor of the deceased, which is commenced within one year after his giving bond for the discharge of his trust, unless such suit is for the recovery of- a demand that would not be affected by the insolvency of the estate, or unless it is brought, after the estate has been represented insolvent, for the purpose of ascertaining a contested claim. § 2. If an executor or administrator, who has given due notice of his appointment, does not within one year thereafter have notice of demands against the estate of the deceased which authorize him to 42 658 APPENDIX OF SELECTED STATUTES. represent such estate to be insolvent, he may, after the expiration of said year, proceed to pay the debts due from the estate, and shall not be personally liable to any creditor in consequence of such payments made before notice of such creditor's demand. § 3. If an executor or administrator pays away in manner afore- said, before notice of the demand of any other creditor, the whole of the estate and effects of the deceased, he shall not be required in consequence of such notice to represent the estate insolvent, but in an action against him he shall be discharged upon proving such payments. § 4. If an executor or administrator pays away in manner afore- said so much of the estate and effects of the deceased that the remain- der is insufficient to satisfy a demand of which he afterwards has notice, he shall be liable to pay on such last-mentioned demand only so much as may then remain. If there are two or more such demands ex- hibited, which together exceed the amount of assets remaining in his hands, he may represent the estate insolvent, and shall, pursuant to such decree as the probate court may make in that behalf, divide and pay over what remains in his hands among such creditors as prove their debts under the commission of insolvency, but the creditors of the deceased who have been previously paid shall not be liable to refund any part of the amount received by them. § 5. If it appears, upon the settlement of the account of an ex- ecutor or administrator in the probate court, that the whole estate and effects which have come to his hands have been exhausted in paying the charges of administration and debts or claims entitled bv Jaw to a preference over the common creditors of the deceased, such settlement shall be a sufficient bar to any action brought against such executor or administrator by a creditor who is not entitled to such pref- erence, although the estate has not been represented insolvent. Debt due to Executor or Administrator. § 6. If a debt claimed by an executor or administrator as due to him from the deceased is disputed by any person interested in the estate, the claimant shall file in the probate court a statement of his claim in writing, setting forth distinctly and fully the nature and grounds thereof ; and the same may then be submitted under an order of the court to one or more arbitrators, to be agreed on by the claimant and the party objecting. The court shall have like power to discharge the rule by which the claim is referred, to reject and disallow the award, or to recommit it to the arbitrators, as might be exercised by courts of common law APPENDIX OP SELECTED STATUTES. 659 with regard to cases referred by a rule of those courts. The award of such arbitrators, if accepted by the probate court, shall be final and conclusive. § 7. If the parties do not agree in the appointment of arbitrators, or if the award is not confirmed by the probate court, the court shall decide on the claim upon such evidence as is brought before it. On appeal to the supreme court of probate, either party or the court may have the claim submitted to a jury, and thereupon an issue shall be made up under the direction of the court, and tried by a jury as other issues in civil actions are tried ; and the verdict ^.hereon, when duly allowed and recorded, shall be conclusive. Joint Contractors. § 8. When two or more persons are indebted on a joint contract, or on a judgment founded on such a contract, and either of them dies, his estate shall be liable therefor as if the con- tract had been joint and several, or as if the judgment had been against the deceased person alone. Iiimitation of Actions by Creditors. Chap. 136, § 9. No ex- ecutor or administrator, after having given due notice of his appoint- ment, shall be held to answer to the suit of a creditor of the deceased, un- less such suit is commenced within two years from the time of his giving bond for the discharge of his trust, except as hereinafter provided. § 10. If the supreme judicial court, upon a bill in equity filed by a creditor whose claim has not been prosecuted within the time limited by the preceding section, is of opinion that justice and equity require it, and that such creditor is not chargeable with culpable neglect in not prosecuting his claim within the time so limited, it may give him judgment for the amount of his claim against the estate of the de- ceased person ; but such judgment shall not affect any payment or distribution made before the filing of such bill. § 11. When assets come to the hands of an executor or adminis- trator after the expiration of two years from the time of his giving bond, he shall account for and apply the same in like manner as if they had been received within said two years, and shall be liable, on account of such new assets, to an action at law or to a proceeding in the probate court by or for the benefit of a creditor, in like manner as if sucli assets had been received within the two years, if such action or proceeding is commenced within one year after the creditor has notice of the receipt of such assets, and within two years after they are actually received. § 12. If an action commenced against an executor or administrator 660 APPENDIX OP SELECTED STATUTES. before the expiration of two years from the time of his giving bond fails of a sufficient service or return by an unavoidable accident ; if the writ in such action is abated or defeated in consequence of a de- fect in the form thereof or of a mistake in the form of the proceeding ; if, after a verdict for the plaintiff, the judgment is arrested ; or, if a judgment for the plaintiS is reversed on a writ of error, the plaintifE may commence a new action for the same cause at any time within one year after the abatement or other determination of the original action, or after the reversal of the judgment therein. § 13. A creditor of the deceased, whose right of action does not ac- crue within two years after the giving of the administration bond, may present his claim to the probate court at any time before the estate is fully administered ; and if, on examination thereof, it appears to the court that such claim is or may become justly due from the estate, it shall order the executor or administrator to retain in his hands sufficient to satisfy the same. But if a person interested in the estate offers to give bond to the alleged creditor with sufficient surety or sureties for the payment of his claim in case it is proved to be due, the court may order such bond to be taken, instead of requiring assets to be retained as aforesaid. This section, so far as it relates to claims to become due, shall not apply to or affect any estate which was in process of settlement on the twenty-eighth day of February in the year eighteen hundred and seventy-nine. § 17. When an executor or administrator dies, resigns, or is re- moved, without ■ having fully administered the estate of the deceased, and a new administrator is appointed, such new administrator shall be liable to the actions of creditors for two years after he has given bond for the discharge of his trust, unless such actions were barred prior to the termination of the previous administration ; but after the expira- tion of said two years, he shall, if he has given due notice of his appointment, have the benefit of the limitations herein provided with respect to an original administration. Payment of Iiegacies. Chap. 136, § 19. Every legatee may re- cover his legacy in an action at common law ; and nothing contained in this chapter shall bar an action brought at any time against an executor or administrator with the will annexed for the recovery of a legacy. § 21. When it is made to appear to a probate court that a partial distribution of the personal property of an estate in process of settle- ment therein can, without detriment to such estate, be made to the persons entitled thereto, said court may, after such notice to all par- APPENDIX OP SELECTED STATUTES. 661 ties interested as it may direct, order such partial distribution to be made. Set-off. Chap. 136, § 22. A debt due to the estate of a deceased person from an heir, devisee, legatee, or distributee of such estate shall be set off against and deducted from the share or claim of such heir, devisee, legatee, or distributee ; and the probate court shall hear and determine as to the validity and amount of any such debt, and may make all decrees and orders which may be necessary or proper to carry into effect such set-off or deduction. § 23. Nothing contained in the preceding section shall prejudice any remedy that an executor or administrator may have for the re- covery of a debt such as is therein mentioned, nor affect the liability of the heir, devisee, legatee, or distributee for the excess of his in- debtedness over the amount of his share in or claim upon the estate to which he is indebted. Interest from Death. Chap. 136, § 24. When an annuity, or the use, rent, income, or interest of property, real or personal, is given by will or by an instrument in the nature thereof, to or in trust for the benefit of a person for life until the happening of a contingent event, such person shall be entitled to receive and enjoy the same from and after the decease of the testator, unless it is otherwise provided in such will or instrument. Insolvent Estates of Deceased Persons. Chap. 137, § 1. When the estate of a person deceased is insufficient to pay all his debts, it shall, after discharging the necessary expenses of his funeral and last sickness and the charges of administration, be applied to the payment of his debts in the following order : — 1. Debts entitled to a preference under the laws of the United States. 2. Public rates, taxes, and excise duties. 3. Wages or compensation, to an amount not exceeding one hundred dollars, due to a clerk, servant, or operative, for labor performed within one year next preceding the death of such deceased person, or for such labor so performed for the recovery of payment for which a judgment has been rendered. 4. Debts due to all other persons. If there is not enough to pay all the debts of any class, the credi- tors of that class shall be paid ratably upon their respective debts ; and no payment shall be made to creditors of any class until all those of the preceding class or classes, of whose claims the executor or ad- ministrator has notice, have been fully paid. Proof of Claims. § 2. When it appears to the probate court from 662 APPENDIX OP SELECTED STATUTES. the representation of an executor or administrator that the estate of the deceased will probably be insufficient for the payment of his debts, the court may appoint two or more fit persons to be commissioners to receive and examine all claims of creditors against such estate, and to return a list of all claims laid before them, with the sum allowed on each claim. § 3. The commissioners shall be sworn before entering on the du- ties of their office ; they shall appoint convenient times and places for their meetings to receive and examine claims, and shall, by mail or otherwise, give to all known creditors at least seven days' written notice of the time and place of each meeting, and also such other notice thereof as the court shall order ; and the executor or adminis- trator shall, fourteen days at least before the first meeting, furnish to the commissioners the names and residences of all known creditors. At the expiration of the time allowed for the proof of claims, the commissioners shall make their return to the court. § 4. If the court does not appoint commissigners according to sec- tion two, it shall itself receive and examine the claims of creditors, allow such as should legally be allowed, and cause a list of all claims presented for proof, with the amount allowed or disallowed on each claim, to be made and certified by the register of said court. § 5. The court shall in such cases order the executor or adminis- trator to give to creditors notice of the times when and places where their claims will be examined, in the same manner as is required of commissioners by section three. § 6. When a commissioner appointed under section two dies or resigns before his duties are fully performed, or when he unreason- ably neglects to make the return required by law, or is removed, the probate court may appoint in his stead a new commissioner, who shall have the same powers and perform the same duties in reference to the proof of claims, as if he had been originally appointed. § 7. The commissioners or the court may require a claimant to make true answers under oath to all questions relating to his claim ; and if he refuses to take such oath or to answer fully all questions, his claim may be disallowed. § 8. Either of the commissioners may administer oaths to claimants and to witnesses. § 9. Six months after the appointment of the commissioners or after the order of the court under section five, shall be allowed for the credi- tors to present and prove their claims ; and when a new commissioner APPENDIX OF SELECTED' STATUTES. 663 is appointed under section six, the time shall be extended to the ex- piration of six months from his appointment. The court may in all cases, if it appears that a just and equitable distribution of the estate requires it, allow such further time, not exceeding eighteen months from the original appointment or order, as it may deem proper, and in case of an appeal as hereinafter provided, it may extend the time to a date not more than one month beyond the final decision of such appeal. § 10. Every creditor who does not present his claim for allowance in the manner herein prescribed shall be barred from recovering the same, unless further assets of the deceased come to the hands of the executor or administrator after the decree of distribution ; in which case his claim may be proved, allowed, and paid in the manner and with the limitations provided in this chapter for contingent claims. § 18. After the expiration of the time allowed by section twelve for appeals from the allowance or disallowance of claims, the probate court shall make such decree for the distribution of the effects among the creditors as the case according to the provisions of this chapter may require. If, before making the decree the court has notice of an appeal then claimed or pending, the decree may be suspended until the determination of the appeal, or a distribution may be ordered among the creditors whose debts are allowed, leaving in the hands of the executor or administrator a sum sufficient to pay to the claimant whose demand is disputed a proportion equal to that of the other creditors. § 19. At any time before the expiration of said time allowed for appeals the court may in its discretion order dividends to be paid to creditors whose claims have been proved and allowed, provided there is left in the hands of the executor or administrator a sum sufficient to pay upon claims that may probably be proved afterwards a proportion equal to what is so paid to such creditors, which sum shall remain unappropriated in the hands of the executor or administrator until the final dividend is declared, or until a distribution is ordered. § 20. If the whole assets are not distributed upon the first decree, or if further assets come to the hands of the executor or administrator, the probate court shall make such further decrees for distribution as the case may require. § 21. If the deceased had been a member of a partnership, and partnership and individual claims are proved against his estate, sepa- rate lists of said claims shall be made, and in making dividends the 664 APPENDIX OP SELECTED STATUTES. court shall order the joint and separate estate to be distributed in the same manner, and among the same classes of creditors, as is provided in the case of insolvent debtors under chapter one hundred and fifty- seven. § 22. If after the completion of the list of allowed claims the as- sets prove sufiicient to pay all such claims, the executor or adminis- trator shall pay them in full ; and if any other debt is afterwards recovered against him, he shall be liable therefor only to the extent of the assets then remaining. § 23. If there are two or more such creditors, the assets, if insuffi- cient to pay their demands in full, shall be divided among them in proportion to their debts. Contingent Claims. § 28. If at the expiration of the time allowed for the proof of claims a person is liable as a surety for the deceased, or has any other contingent claim against his estate which could not be proved as a debt within said time, the court upon proof of such facts shall, in ordering a dividend, leave in the hands of the executor or administrator a sum sufficient to pay to such contingent creditor a proportion equal to what is then to be paid to the other creditors. § 29. If such contingent debt becomes absolute within four years after the time of the giving of the executor's or administrator's bond, it may be proved before the probate court, before the commissioners already appointed, or before others to be appointed for the purpose by the court. § 30. Upon the allowance of such claim the creditor shall be en- titled to a dividend thereon equal to what has been paid to the other creditors, so far as the same can be paid without disturbing the former dividend ; and if the claim is not finally established, or if the dividend upon it does not exhaust the assets in the hands of the executor or administrator, the residue of the assets shall be divided among aU creditors who have proved their debts. .Actions by Creditors during Pendency of Insolvency Proceed- ings. § 31. Except as provided in the following section, no action shall be maintained against an executor or administrator after an estate has been represented insolvent, unless for a demand entitled to a preference, and which would not be affected by the insolvency of the estate, or unless the assets prove more than sufficient to pay all the debts allowed by the commissioners. If the estate is represented insolvent while an action is pending for a demand that is not entitled to such preference, the action may be discontinued without payment APPENDIX OP SELECTED STATUTES. 665 of costs ; or, if the demand is disputed, the action may be tried and determined and judgment rendered thereon in the same manner and with the same effect as is provided in the case of an appeal from the original allowance or disallowance of the claim of a creditor ; or the action may be continued without costs until it appears whether the es- tate is insolvent ; and if it is not insolvent, the plaintiff may prosecute the action as if no such representation had been made. § 32. If it is not ascertained at the end of eighteen months after the granting of letters testamentary or of administration whether an estate represented insolvent is or is not so in fact, any creditor whose claim has not been presented for proof may commence an action there- of against the executor or administrator, and such action may be con- tinued without costs for the defendant imtil it appears whether the estate is insolvent ; and if it is not insolvent, the plaintiff may prose- cute the action as if no such representation had been made. § 33. "When judgment has been rendered against the estate of a deceased person which has been represented insolvent, and a certified copy from the probate court, showing such representation, has been filed in the clerk's office of the court in which the judgment was ren- dered, no execution shall be issued on such judgment ; but such judg- ment may be presented for allowance in the same manner as other claims of creditors, and otherwise the proceedings relative to such judgment shall be the same as under section thirteen with judgments rendered on appeal. Administration by Non-residents. Chap. 138, § 1. When ad- ministration is taken in this Commonwealth on the estate of a person who was an inhabitant of any other State or country, his estate found here shall, after payment of his debts, be disposed of according to his last wUl, if he left any duly executed according to law ; otherwise his real estate shall descend according to the laws of this Commonwealth, and his personal estate shall be distributed and disposed of according to the laws of the State or country of which he was an inhabitant. § 2. Upon the settlement of such estate, and after the payment of all debts for which the same is liable in this Commonwealth, the resi- due of the personal estate may be distributed and disposed of in man- ner aforesaid by the probate court ; or, in the discretion of the court, it may be transmitted to the executor or administrator, if any, in the State or country where the deceased had his domicil, to be there dis- posed of according to the laws thereof. § 3. If such person dies insolvent, his estate found in this Com- 666 APPENDIX OP SELECTED STATUTES. monwealth. shall, as far as practicable, be so disposed of that all his creditors here and elsewhere may receive each an equal share in proportion to their respective debts. § 4. To this end, his estate shall not be transmitted to the foreign executor or administrator until all the creditors who are citizens of this Commonwealth have received the just proportion that would be due to them if the whole estate of the deceased, wherever found, that is applicable to the payment of common creditors, were divided among all the creditors in proportion to their respective debts, without pre- ferring any one species of debt to another ; and no creditor who is not a citizen of this Commonwealth shall be paid out of the assets found here, until all those who are citizens have received their just proportion as provided in the preceding section. § 5. If there is any residue after such payment to the citizens of this Commonwealth, it may be paid to any other creditors who have duly proved their debts here, in proportion to the amount due to each of them, but no one shall receive more than would be due to him if the whole estate were divided ratably among all the creditors as before provided. The balance may be transmitted to the foreign ex- ecutor or administrator ; or if there is none, it shall, after the ex- piration of four years from the appointment of the administrator, be distributed ratably among all creditors, both citizens and others, who have proved their debts in this Commonwealth. Chap. 142, § 3. An executor, administrator, guardian, or trustee^ duly appointed in another State or in a foreign country and duly qualified and acting, who may be entitled to any personal property situated in this Commonwealth, may, upon petition to the probate court of any county, and after such notice to all persons interested as said court may order, be licensed to receive or to sell by public or private sale on such terms and to such person or persons as he shall think fit, or otherwise to dispose of, and to transfer and convey, any personal estate in such county or any shares in a corporation which has an established or usual place of business in such county : Pro- vided, it appears to the court that there is no executor, administrator, guardian, or trustee appointed in this Commonwealth who is au- thorized so to receive and dispose of such shares or estate, and that such foreign executor^ administrator, guardian, or trustee will be liable, upon and after such receipt or sale, to account for such shares or estate, or for the proceeds thereof, in the State or country in which he was appointed ; and provided, that no person resident in this Com- APPENDIX OP SELECTED STATUTES. 667 monwealth and interested as a creditor or otherwise objects to the granting of such license, or appears to be prejudiced thereby; but no such license shall be granted to a foreign executor or administrator until the expiration of six months from the death of his testator or intestate. Administration Bonds. Chap. 143, § 10. Bonds given by ex- ecutors or administrators for the discharge of their trust may be put in suit by a creditor of the deceased for his own benefit, when such creditor has recovered judgment for his debt against the executors or administrators, and they have neglected upon demand made by him to pay the same or to show sufficient goods or estate of the deceased to be taken on execution for that purpose. § 12. Such suit may be brought by a person who is next of kin to recover his share of the personal estate after a decree of the probate court ascertaining the amount due to him, if the executor or adminis- trator neglects to pay such amount when demanded. § 13. When it apears to the probate court, on the representation of any person interested in an estate, that the executor or administrator has failed to perform his duty in any particular not before specified, the court may authorize any creditor, next of kin, legatee, or other person aggrieved by such maladministration, to bring an action on the bond. Administration Accounts. Chap. 144, § 3. Every executor, ad- ministrator, guardian, and trustee shall account for the personal estate at its appraised value, except that he shall make no profit by the increase, and shall sustain no loss by the decrease or destruction, without his fault, of any part thereof. If he sells any of the personal estate for more than its appraised value, he shall account for the ex- cess ; and if he sells any for less than its appraised value, he shall be allowed for the loss, if it appears to the probate court that the sale was expedient and for the interest of all concerned, and he shall not be accountable for a debt inventoried as due to the estate, if it appears to the court that it remains uncollected without his fault. § 4. Every executor, administrator, guardian, and trustee shall be chargeable in his account with all the personal estate of the deceased which comes to his hands and which is by law to be administered, although not included in the inventory ; also with all proceeds of real estate sold or mortgaged, and with all interest, profit, and income that come to his hands from the personal estate of the deceased. § 5. If the real estate has been used or ptecupied by an executor or 668 APPENDIX OP SELECTED STATUTES. administrator, he shall account for the income thereof as ordered by the probate court with the assent of the executor or administrator and of such other parties interested as are present at the rendering of the account. If the parties do not agree on the sum to be allowed, it shall be determined by three disinterested persons to be appointed by the probate court, whose award, when accepted by the court, shall be final. § 6. As part of the funeral expenses of a deceased person, a rea- sonable sum expended for a burial-lot and for a monument may be allowed by the court. § 7. Every executor, administrator, guardian, and trustee shall be allowed his reasonable expenses incurred in the execution of his trust, and shall have such compensation for his services as the court in which his accounts are settled may deem just and reasonable. MICHIGAN. Howell's Ankotated Statutes, 1882. Appointment of Usecutor. § 5834. When a will shall have been duly proved and allowed, the probate court shall issue letters testa- mentary thereon to the person named executor therein, if he is legally competent, and shall accept the trust, and give bond as required by law. Bond of Residuary Legatee. § 5836. If, however, the executor shall be residuary legatee, instead of the bond prescribed in the pre- ceding section, he may give a bond in such sum and with such sureties as the court may direct, with a condition only to pay all the debts and legacies of the testator ; and in such case he shall not be required to return an inventory. Executor of Hzecutor. § 5845. The executor of an executor shall not, as such, have any authority to administer the estate of the first testator ; but, on the death of the only surviving executor of any will, administration of the estate of the first testator not already ad- ministered may be granted with the will annexed to such person as the probate court may judge proper. Order of Administration. § 5849. Administration of the estate of a person dying intestate shall be granted to some one or more of APPENDIX OF SELECTED STATUTES. 669 the persons hereinafter mentioned, and they shall be respectively en- titled to the same, in the following order : — 1. The widow or next of kin, or both, as the judge of probate may think proper, or such person as the widow or next of kin may re- quest to have appointed, if suitable and competent to discharge the trust. 2. If the widow or next of kin, or the person selected by them, shall be unsuitable or incompetent, or if the widow or next of kin shall neglect for thirty days after the death of the intestate, to apply for administration, or to request that administration be granted to some other person, the same may be granted to one or more of the principal creditors, if any such are competent and willing to take it. 3. If there be no such creditor competent and willing to take admin- istration, the same may be committed to such other person or persons as the judge of probate may think proper. Notice to Creditors. ' § 5918. The probate court, at the time of granting letters testamentary or letters of administration, shall make an order allowing to the executor or administrator a time for dis- posing of the estate, and paying the debts and legacies of the deceased person, which time shall not, in the first instance, exceed one year and six months. Preferred Debts. § 5923. If the assets which the executor or ad- ministrator may have received, and which can be appropriated to the payment of debts, shall not be sufficient, he shall, after paying the necessary expenses of administration, pay the debts against the estate in the following order : — 1. The necessary funeral expenses. 2. The expenses of the last sickness. 3. Debts having a preference by the laws of the United States. 4. Debts due to other creditors. Sale of Real Estate to pay Debts. § 6025. When the personal estate of any deceased person, in the hands of his executor or admin- istrator, shall be insufficient to pay all his debts, with the charges of administering his estate, his executor or administrator may sell his real estate for that purpose, upon obtaining a license therefor and proceeding therein in the manner hereinafter provided. 670 APPENDIX OP SELECTED STATUTES. MISSISSIPPI. Betised Code, 1880. Age of Competency. § 1979. The age of eighteen shall he the age of majority of an executor or executrix, and in case letters testa- mentary shall be granted to any one above eighteen and under twenty- one years, the bond executed by such person for the performance of the duties shall be as valid and binding as if such person were of full age. Povj-ers of Execntor. § 1983. Every executor, or administrator with the will annexed, who has so qualified, shall have a right to the possession of all the personal estate of the deceased, unless otherwise directed in the will ; and he shall take all proper steps to acquire pos- session of any portion ttereof that may be withheld from him, and shall manage the same for the best interest of those concerned, as far as he can do so, consistently with the will and according to law. He shall have the proper appraisements made, and return true and com- plete inventories ; he shall collect all debts due the estate as speedily as may be, and pay all debts that may be due from it which are prop- erly authenticated, so far as the means in his hands will allow ; he shall settle his accounts as often as the law may require him to do so, and pay all the legacies and bequests as far as the estate may be sufficient, and shall well and truly execute the will, if the law will permit ; and he shall also have a right to the possession of the real estate, so far as may be necessary to execute the will, and may have proper remedy therefor. Order of Administration. § 1993. The granting of letters of administration of the estate of any intestate, and the hearing and de- termining the right of administration shall appertain to the chancery court of the county in which the intestate had at the time of his death a mansion-house or known place of residence ; but if the intestate had no mansion-house or known place of residence, then to the chancery court of the county where the intestate died, or that in which his per- sonal property or the greater part of it may be. And the court shall grant letters of administration to the relative who may apply ; pre- ferring first the husband or wife, and then such others as may be next entitled to distribution, if of full age, selecting amongst those who may stand in equal right, the person or persons best calculated in the opinion of the court to manage the estate ; or the court may select APPENDIX OP SELECTED STATUTES. 671 a stranger if the relations be manifestly incompetent. And if no such person apply for administration within . thirty days from the death of an intestate, the court may grant administration to a creditor who may apply, or to any other suitable person. Incompetency of Executor or Administrator, § 1994. Letters of administration shall not be granted to any person under the age of twenty-one years, of unsound mind, incapable according to law of making a valid contract, or convicted of any crime rendering such person infamous ; and any question respecting age, soundness of mind, or infamy, shall not be determined without notice to the party, and the court shall receive such evidence as would be admissible in a court of law or equity in similar cases. Removal and Resignation of Ezecutor or Administrator, § 2008. Every executor or administrator may be removed if he should become disqualified, or for improper conduct in office, at the instance of any person interested, on proper notice to such executor or administrator ; or they may surrender the trust, on giving the proper notice to the distributees or legatees, and by settling with the court so far as they may have administered the estate, and in case of removal or resigna- tion, administration shall be granted as in case of the death of the executor or administrator, and with like effect on all the proceedings by or against the executor or administrator. But every executor or administrator who may be removed, or who may surrender his trust, shall continue to be answerable to the court until his final settlement and satisfaction shall be made, and until that time shall be liable om his bond. And in case of a vacancy from any cause in the ad- ministration of an estate, the chancellor, in term time or vacation, may appoint a receiver of the assets untU the qualification of an administrator. Notice to Creditors. § 2026. It shall be the duty of every execu- tor and administrator to pay the debts as speedily as may be out of the assets which may come to his hands, if the estate be solvent ; and in order that its true condition may be speedily known it shall be the duty of the executor or administrator to publish in some newspaper printed in the county a notice requesting all persons having claims against the estate of his testator or intestate, to exhibit the same, and have them registered by the clerk of the court, granting letters within one year, or they will be forever barred ; which notice shall state the time when the letters were granted, and shall be pmblished for four consecutive weeks. If no paper is published in the county, notice 672 APPENDIX OP SELECTED STATUTES. by posting at the court-house door and three other places of public resort in the county shall suffice ; and affidavit of such posting, filed among the papers of the administration, shall be evidence of such posting in any controversy in which the fact of such posting shall be brought into question. Iiimitation of Actions against Estate. § 2028. All claims against the estate of a deceased person, whether due or not, shall be registered in the court in which the letters testamentary or of administration were granted, within one year after the first publication of notice to creditors to present their claims ; otherwise the same shall be barred, and no suit shall be maintained thereon in any court, even though the existence of such claim may have been well known to the execu- tor or administrator ; provided, that creditors who have failed to pre- sent their claims shall not be barred as to any surplus that remains after the other debts, registered and allowed, have been fully paid, if they present and prove their claims before distribution of the estate. Sale of Real Estate to pay Debts. § 2039. "When any executor or administrator shall discover that the personal property will not be sufficient to pay the debts and expenses, he may file a petition to the court for the sale of the land of the deceased, or so much of it as may be necessary, and exhibit to the court a true account of the personal estate and debts due from the deceased and the expenses ; and when it is filed summons shall be issued for all persons interested residing in the State, and publication be made as to all persons residing out of the State as directed in this act. Insolvent Estates. § 2054. Every executor or administrator shall take all proper steps speedily to ascertain whether the estate be solvent or insolvent; and if it be ascertained that the estate, both real and personal, will be sufficient to pay the debts of the deceased, the executor or administrator shall exhibit to the court a true account of all the personal estate and assets of every description, and of the land of the deceased, and of all the debts due from the deceased ; and if it shall appear to the court that the estate is insolvent, it shall make an order for the sale of all the property ; and the proceeds of such sale and all other assets shall be equally distributed among all the creditors, in proportion to the sums to them respectively due and owing, the expenses of the last sickness and for the funeral and court costs being first paid ; but before any such decree of sale is made, the devisees or heirs shall be made parties to the proceedings as in other cases. APPENDIX OP SELECTED STATUTES. 673 MISSOURI. Revised Statutes, 1879. Order of Administration. § 7. Letters of administration shall be granted : first, to the husband or wife, and, secondly, to those who are entitled to distribution of the estate, or one or more of them, as the court, or judge or clerk, in vacation, shall believe will best manage and preserve the estate. Competency of a Non-resident. § 10. Letters testamentary and of administration shall in no case be granted to a non-resident of this State, and when an executor or administrator shall become non-resi- dent, the court shall, upon proof thereof, after due notice to such executor or administrator, revoke his letters. Minority Administration. § 14. If the validity of a will be con- tested, or the executor be a minor or absent from the State, letters of administration shall be granted during the time of such contest, minority, or absence, to some other person, who shall take charge of the property and administer the same according to law, under the direction of the court, and account for and pay and deliver all the money and property of the estate to the executor or regular adminis- trator, when qualified to act. ' Competency of Married Women. § 42. If any executrix or ad- ministratrix marry, her husband shall not thereby acquire any interest in the effects of her testator or intestate, nor shall the administration thereby devolve upon him, but the marriage shall extinguish her power, and her letters be revoked. Revocation of Letters. § 43. If any executor or administrator become of unsound mind, or be convicted of any felony or other in- famous crime, or has absented himself from the State for the space of four months, or become an habitual drunkard, or in any wise incapable or unsuitable to execute the trust reposed in him, or fail to discharge his official duties, or waste or mismanage the estate, or act so as to endanger any co-executor or co-administrator, the court, upon com- plaint in writing made by any person interested, supported by affi- davit, and ten dajrs' notice given to the person complained of, shall hear the complaint, and, if it finds it just, shall revoke the letters granted. Resignation of Executor or Administrator. § 44. If any ex- ecutor or administrator shall publish, for four weeks, in some news- paper published in the county where the proceedings are had, if there 43 674 APPENDIX OP SELECTED STATUTES. be one, and if not, in the nearest newspaper to such county, a notice of his intention to apply to the proper court to resign his letters, and the court, on proof of such publication and for good cause shown, believe that he should be permitted to resign, it shall so order. Administration by Surviving Partner. § 57. In case of the death of a member of a copartnership, the surviving partner or partners, resident in this State, shall administer the effects and es- tate of the copartnership in the county in which the copartnership business was conducted, on giving bond as hereinafter provided. Wido-w's Allowance. § lOS. In addition to dower, the widow shall be allowed to keep, as her absolute property, a family Bible and other books, not to exceed two hundred dollars ; all the wearing apparel of the family ; her wheels, looms, and other implements of industry ; all yarns, cloth, and clothing made up in the family for their own use ; all grain, meat, vegetables, groceries, and other provi- sions on hand, and provided and necessary for the subsistence of the widow and her family for twelve months ; her household, kitchen, and table furniture, including beds, bedsteads, and bedding, not to exceed the value of five hundred dollars. § 107. In addition to the above, the widow may take such personal property as she may choose, not to exceed the appraised value of four hundred dollars, for which she shall give a receipt. § 110. In case of the death of a father leaving no widow, but minor children under sixteen years of age, such minor children shall be en- titled absolutely to the property and allowances that the wife would have been entitled to under the provisions of this chapter, if she had survived her husband ; and in case a widow shall die, leaving minor children under sixteen years of age, they shall be entitled to the same property and allowances absolutely as the mother was entitled to take at the death of her husband. Sale of Real Estate to pay Debts. § 146. If any person die, and his personal estate shall be insufficient to pay his debts and legacies, his executor or administrator shall present a petition to the probate court, stating the facts, and praying for the sale of the real estate, or so much thereof as will pay the debts and legacies of such deceased person. Preferred Debts. § 184. All demands against the estate of any deceased person shall be divided into the following classes : — 1. Funeral expenses. 2. Expenses of the last sickness, wages of servants, and demands for medicine and medical attendance during the APPENDIX OP SELECTED STATUTES. 675 last sickness of the deceased. 3. All debts, including taxes due to the State or any county or incorporated city or town ; and it shall be the duty of the executor or administrator to pay all such taxes without demand therefor being presented to the court for allowance. 4. Judg- ments rendered against the deceased in his lifetime, and judgments rendered upon attachments levied upon property of the deceased during his lifetime ; but if such judgments shall be liens upon the real estate of the deceased, and the estate shall be insolvent, such judgments as are liens upon the real estate shall be paid as provided in sections 152, 153, 154, 155, 156, 157, 158, 159, and 160, without reference to classification, except the classes of demands mentioned in the first and second subdivisions of this section shall have precedence of such judgments. 5. All demands, without regard to quality, which shall be legally exhibited against the estate within one year after the granting of the first letters on the estate. 6. All demands thus ex- hibited, after the end of one year, and within two years after letters granted. Limitation of Actions against Estate. § 185. All demands not thus exhibited in two years shall be forever barred, saving to infants, persons of unsound mind or imprisoned, and married women, two years after the removal of their disability, and said two years shall begin to run from the date of the letters, where notice shall be pub- lished within thirty days, as provided in section 87, and in all other cases said two years shall begin to run from the date of publication of the notice. NEW HAMPSHIRE. General Laws, 1878. Order of Administration. Chap. 195, § 2. Administration of the estate of any person deceased shall be granted, — (1) To the executor named in the will of said deceased ; (2) To the widow, or any of the next of kin, or such suitable person as they or any of them may nominate; (3) To one of the devisees or creditors ; (4) To such other person as the judge may think proper. Competency of Minor. § 3. No person, not of full age, or deemed by the judge unsuitable, shall be appointed to administer any estate. 676 APPENDIX OP SELECTED STATUTES. § 6. If any minor appointed executor comes of age and requests it, administration on the estate not before administered shall be granted to him ; and the administration before granted shall be revoked un- less the same was granted to a co-executor ; in which case such minor shall be a joint executor. Competency of Non-inhabitants of State. § 4. No person not an inhabitant of this State shall be so appointed, by reason of any right to such trust, unless other circumstances, in the opinion of the judge, render the same proper. Renunciation of those entitled to Administer. § 5. No person shall be appointed to administer any estate until the several persons previously entitled thereto shall have either voluntarily renounced such trust in writing, or neglected, for thirty days after the decease of the person upon whose estate administration is to be granted, to apply for such administration. Administration de bonis non. § 7. If the administration on any estate becomes vacant by death, extinguishment, or revocation, the judge may grant administration, on the estate not before adminis- tered, to such person as he may think proper, having due regard to the rule prescribed in section two of this chapter. Executor of Executor. § 8. The executor of an executor shall not in consequence thereof become the executor of the first testator. Married Woman as Ezecutriz. § 9. If any executrix or ad- ministratrix marries, her husband shall not thereby become executor or administrator in her right ; but such marriage shall operate as an extinguishment of the trust. Removal of Executor or Administrator. § 10. If any executor or administrator, by reason of absence, or any infirmity of body or mind, or by wasteful or fraudulent management in his trust, becomes unfit for the discharge thereof, or unsafe to be trusted therewith, the judge, upon due notice, may revoke such administration. Revocation of Letters. § 11. Such trust may be revoked under any circumstances, with the consent of the executor or administratorj when it shall appear to the judge to be proper. Bond of Residuary Legatee. § 13. If the executor to whom ad- ministration is granted is residuary legatee, and there is no widow, or if, there being a widow, she informs the judge in writing that she accepts the provisions of the will, a bond, with sufficient sureties, may be taken from him, with condition only to pay the funeral charges, debts, and legacies, and to render upon oath an account of his proceedings therein, when .thereto required. APPENDIX OP SELECTED STATUTES. 677 Executor de son tort. § 15. If any person unlawfully intermed- dles with, embezzles, alienates, wastes, or destroys any of the personal estate of a deceased person, he shall be liable to actions of the credit- ors and others aggrieved, as executor in his own wrong, to double the value of such estate. Administration upon Estate of one supposed Deceased. § 16. When it shall be proved to the satisfaction of the judge of probate that a person has left his home and not been heard of or from directly or indirectly for one year, and a notice has been published in some newspaper at Concord, and also in some newspaper in the county where said person had lived for more than one year immediately before his departure, and notices posted one month in three or more public places in the town where he had lived for more than one year before his departure, and such other notice to relatives and heirs as the court may deem best, and the judge of probate shall believe that said person is dead, it shall be lawful to appoint an administrator upon the estate of said person. § 17. The notices in such cases shall contain a brief description of the man, his age, name, and such other characteristics as shall iden- tify him ; and no distribution of said estate shall be made until five years after administration has been granted under provisions of the preceding section. Special Administration. §18. Whenever by reason of an appeal from the probate of a will, or the appointment of an administrator, or from any other cause, there is delay in determining the final grant of administration upon the estate of any person deceased, a special ad- ministrator may be appointed. Inventory. Chap. 196, § 1. Every administrator, within three months after his appointment, shall return to the probate oflBce, under oath, a true inventory of all the estate of the deceased that has come to his knowledge, including his real estate, goods, and chattels, and a correct schedule of his notes and other written -evidences of debt. § 2. Such inventory shall contain a just and impartial appraise- ment of the real estate, goods, and chattels, and a correct schedule of the notes and written evidences of debt, made by three suitable per- sons appointed by the judge and sworn before a justice to their fidelity and impartiality therein. ■Widow's Allowance. § 3. The wearing apparel and ornaments of the widow, according to the estate of her husband, and the wearing 678 APPENDIX OP SELECTED STATUTES. apparel, T3ibles, and school-books of the minor children, are their pi'op- erty, and shall not be regarded as assets, or be the subject of bequest by the husband. The wearing apparel of the deceased leaving a widow, husband, or children surviving, shall not be inventoried or accounted for, but shall be delivered by the administrator to the sur- viving husband or wife, if any, otherwise shall be divided by him among the children ; but the same may be otherwise disposed of by will by the owner. Administration Accounts. § 4. All assets, though not inven- toried, shall be accounted for, and the administrator charged there- with in the account of administration. § 5. All goods and chattels shall be accounted for at the appraised value, unless sold at auction by license of the judge, which may be granted at any time within six months after the date of the bond, and in that case, the administrator giving the notice prescribed in the license, and conducting with fidelity and impartiality in the sale, shall be credited with the loss, or charged with the gain upon such sale, but any administrator may sell, by license of the judge, stocks, bonds, securities, or other evidences of debt payable at a distant day, belonging to the estate, in the place designated in the license where they are usually sold, and shall be accountable only for the proceeds of such sale. § 8. All debts due to the estate, which by due diligence might have been collected, shall be accounted for in money. Debt of Administrator. § 10. A debt due from the administrator to the estate shall be assets, and accounted for as other debts. If such debt is specifically bequeathed to him, his right thereto shall be the same as that of any legatee ; and the judge, after due notice, shall liquidate and adjust all debts and claims due to the administrator, or from him to the estate. Sale of Real Estate. § 13. Every administrator shall apply for and procure license for the sale of so much of the real estate as may be necessary to pay debts and legacies, if the personal estate is in- sufficient ; and neglect or refusal to obtain such license, to make such sale, to account for the proceeds thereof, or fraudulent conduct therein, shall be deemed maladministration and a breach of his bond. Payment of Debts. § 15. The estate of every person deceased shall be chargeable with, — 1. The just expenses of the administration thereof. 2. The neces- sary expenses of the funeral of the deceased. 3. A reasonable al- APPENDIX OF SELECTED STATUTES, 679 lowance to the widow as by law provided. 4. The just debts owed by the deceased. 5. The support and maintenance of infant children of the deceased until they arrive at the age of seven years, if the estate is in fact solvent. 6. The legacies given by the will of the deceased. Limitation of Actions. Chap. 198, § 1. No action shall be sus- tained against any administrator if commenced withia one year after the original grant of administration, nor unless the demand has been exhibited to the administrator and payment demanded. § 2. No such action shall be sustained unless the demand was ex- hibited to the administrator within two years after the original grant of administration. § 5. No suit shall be maintained against any administrator for any cause of action against the deceased, unless the same is commenced within three years next after the original grant of administration, exclusive of the time such administration may have been suspended, except in cases where he has retained estate in his hands for the pay- ment of such claim by order of the judge. Payment of Contingent Claims. § 6. Demands against any estate not due, or depending on some contingency, may be filed in the court of probate ; and the judge, after due notice, may require the administrator to retain in his hands, on settlement of his account, such sum as may be necessary to pay the same, unless the widow, heirs, or legatees shall give bond to the judge for the payment thereof when such contingency shall happen. The statutory provisions in regard to insolvent estates and in regard to selling real estate to pay debts are similar to those of Massachusetts ; q. v. NEW JERSEY. Revision, 1877. Appointment of Administrator. Title Orphans' Court. § 28. If any person die intestate, or if the executor named in any testa- ment renounce the executorship, or neglect for the space of forty days after the death of the testator to prove such testament, then adminis- tration of the goods, chattels, and credits of such intestate or of such testator, with the testament annexed, shall be committed or granted to the widow or the next of kin of such intestate or testator, or to 680 APPENDIX OP SELECTED STATUTES. some of them, if they or any of them will accept the same ; and if none of them will accept thereof, then to such other proper person or persons as will accept the same. Hxecutors and Administrators. § 9. Whenever any person shall die intestate within this - State, and leave no relations justly entitled to the administration of his or her personal estate, or, if so entitled, shall not claim the same within fifty days after the death of such per- son so dying intestate, it shall be lawful for the ordinary or surrogate to grant letters of administration on such decedent's estate to any fit person or persons applying therefor, taking his, her, or their bond for the faithful execution of the trust reposed in him, her, or them. Inventory. § 50. It shall be the duty of every executor and ad- ministrator to make a true and perfect inventory of the goods and chattels, rights and credits, and efiects of the deceased, and to cause a just appraisement of the same to be made by two discreet and impar- tial persons, which inventory shall be proved before the surrogate within three months after grant of letters testamentary or of adminis- tration, unless the orphans' court for good cause shown shall allow further time therefor ; and if any executor or administrator shall fail to prove such inventory before the surrogate within the time afore- said, the surrogate shall cite him to render such inventory ; and if he continue in default, the orphans' court shall revoke the letters testa- mentary or of administration, and grant letters to some other person. ■Widow's Allowance. § 52. The wearing apparel of any person who shall die leaving a family residing in this State, and goods and chattels, money and effects of the estate of such deceased to the value of two hundred dollars, shall be reserved to and for the use , of the family, against all creditors, and before any distribution or other dis- position thereof. Payment of Debts. § 57. To enable executors or administrators to examine into the condition of the estate, and ascertain the amount and value thereof, and the debts to be paid out of the same, no action, either at law or in equity, except for funeral expenses, shall be brought or maintained against executors or administrators of the estate of any decedent, within six months after probate shall have been granted to such executor or executors in case of a will, or letters of administration shall have been granted to such administrator or administrators in case of intestacy, or with a will annexed, as the case may be, unless upon suggestion of fraud to the satisfaction ot the court wherein such action is intended to. he brought. APPENDIX OP SELECTED STATUTES. 681 Preferred Debts. § 58. Judgments entered of record against the decedent in his lifetime, funeral charges and expenses, and the physi- cian's bill during the last sickness shall have preference and be first paid out of the personal and real estate of the testator or intestate. Order of Notice to Creditors. § 59. The orphans' court, or the surrogate of the proper county, is hereby empowered to order execu- tors and administrators to give public notice to the creditors of the decedent to bring in their debts, demands, and claims against his estate, under oath, within nine months from the date of such order, by setting up such notice in five of the most public places in said county for two months, and also by advertising the same for the like time in one or more of the newspapers of this State as may be directed in said order, and any further notice in case the court or surrogate shall judge the same necessary, which order may be made in term time or vacation at any time after the granting of letters testamentary or of administration, whether the estate be insolvent or not ; and such notice shall be given and advertised within twenty days after the date of such order. Sale of Land to pay Debts. § 70. The lands, tenements, heredi- taments, and real estate of any person who shall die seized thereof, or entitled to the same, as well as any share or shares, or part or parts of a share of proprietary or undivided rights, or warrant to locate lands in this State, shall be and remain liable for the payment of his or her debts, for one year after his or her decease, and may be sold by vii-tue of an order of the orphans' court of the county where such lands, tenements, hereditaments, and real estate shall lie. § 71. When any executor or administrator shall' discover or be- lieve that the personal estate of his testator or intestate is insufficient to pay his debts, it shall be his duty to exhibit, under oath, a true account of the personal estate and debts, as far as he can discover the same, to the orphans' court of the county where the lands, tenements, hereditaments, and real estate of which the said testator or intestate died or shall die seized do lie, and request their aid in the premises ; and the said court shall thereupon make an order directing all persons interested in such lands, tenements, hereditaments, and real estate to appear before them at a certain day and place in the said order to be mentioned, not less than two months after the day of making such order, to show cause why so much of the said lands, tenements, heredi- taments, and real estate of the said testator or intestate should not be sold as will be sufiicient to pay his debts, or the residue thereof, as the 682 APPENDIX OF SELECTED STATUTES. case may require ; which order, signed by the surrogate or clerk of the said court, shall be immediately thereafter set up at three of the most public places in the said county for six weeks successively, and be pub- lished for the same time in one or more of the newspapers printed in this State. Insolvent Estates. § 82. When any executor or administrator shall, by application in writing, represent to the orphans' court of the proper county, on oath or affirmation, that the personal and real estate of the decedent is insufficient to pay the debts of the deceased, according to the best of his knowledge and belief, the said court shall thereupon direct the said executor or administrator to give public notice to the creditors of the estate to exhibit to such executor or administrator, under oath or affirmation, their claims and demands against the estate within such time as the court shall direct and ap- point, not exceeding eighteen months nor less than six months, by setting up such notice in five of the most public places in the county, for the space of two months, and also by advertising the same for the like period in one or more of the newspapers printed in this State as may be appointed by the said court, and such further notice, if any, as the said court shall direct. Executor of Executor. § 2. No executor of an executor shall as such be authorized to administer on the estate of the first testator, but on the death of the sole or surviving executor of any last will and testament, letters of administration with the will annexed of the as- sets of the first testator left unadministered shall be issued by the surrogate of the proper county to some proper person, who shall be- fore the issuing thereof give bond to the ordinary of the State, with sufficient sureties, as in other cases of administration with the will annexed. NEW YORK. Eevisbd Statutes, Banks & Beo's 7 ed., 1882. Incompetency. Pt. 2, chap. 6, tit. 2, § 3. No person shall be deemed competent to serve as an executor who at the tinie the will is proved shall be (1) incapable in law of making a contract (except married women) ; (2) under the age of twenty-one years ; (3) an alien not being an inhabitant of this State ; (4) who shall have been con- APPENDIX OP SELECTED STATUTES. 683 victed of an infamous crime ; (5) who upon proof shall be adjudged by the surrogate to be incompetent to execute the duties of such trust by reason of drunkenness, dishonesty, improvidence, or want of un- derstanding. If any such person be named as the sole executor in any will, or if all the persons named therein as executors be in- competent, letters of administration (with the will annexed) shall be issued as hereinafter provided in the case of all the executors renouncing. § 32. No letters of administration shall be granted to a person convicted of an infamous crime, nor to any one incapable by law of making a contract, nor to a person not a citizen of the United States, unless such person reside within this State ; nor to any person who is under twenty-one years of age; nor to any person who shall be judged incompetent by the surrogate to execute the duties of such trust by reason of drunkenness, improvidence, or want of understanding ; nor to any married woman, unless with the written consent of her hus- band. But with such written consent she may administer without her husband. Competency of Married Women. § 4. No married woman shall be entitled to letters testamentary unless her husband consent thereto by a writing to be filed with the surrogate ; and by giving such consent he shall be deemed responsible for her acts jointly with her. L. 1867, chap. 782, § 2. Married women are hereby declared to be capable of acting as executrixes, administratrixes, and guardians of minors, and of receiving letters testamentary, or of administration, or of guardianship, as though they were single women ; and their bonds, given upon the granting of such letters, shall have the same force and effect as though they were not married. Order of Administration. Bev. Sts., § 27. Adipinistration in case of intestacy shall be granted to the relatives of the deceased who would be entitled to succeed to his personal estate, if they or any of them will accept the same, in the following order : — 1. To his widow. 2. To his children. 3. To the father. 4. To the mother. 5. To the brothers. 6. To the sisters. 7. To the grandchildren. 8. To any other next of kin who would be entitled to share in the distribution of the estate. If any of the persons so entitled be minors, administration shall be granted to their guardians. If none of the said relatives or guardians will accept the same, then to the creditors of the deceased ; and the creditor first applying, if 684 APPENDIX OP SELECTED STATUTES. otherwise competent, shall be entitled to a preference. If no creditor apply, then to any other person or persons legally competent. But in the city of New York the public administrator shall have prefer- ence, after the next of kin, over creditors and all other persons ; and in other counties of this State the county treasurer shall have pref- erence, next after creditors, over all other persons ; and in the case of a married woman dying intestate, her husband shall be entitled to administration in preference to any other person, as hereinafter provided. § 28. When there shall be several persons of the same degree of kindred to the intestate entitled to administration, they shall be pre- ferred in the following order : — 1. Males to females. 2. Relatives of the whole blood to those of the half-blood. 3. Unmarried women to such as are married. And when there are several persons equally entitled to administration, the surrogate may in his discretion grant letters to one or more of such persons. § 29. A husband, as such, if otherwise competent according to law, shall be solely entitled to administration on the estate of his wife, and shall give bond as other persons, but shall be liable as ad- ministrator for the debts of his wife only to the extent of the assets received by him. If he shall not take out letters of administration on her estate, he shall be presumed to have assets in his hands suffi- cient to satisfy her debts, and shall be liable therefor ; and if he shall die, leaving any assets of his wife unadministered, they shall pass to his executors or administrators, as part of his personal estate, but shall be liable for her debts to her creditors, in preference to the creditors of the husband. § 33. If any person who would otherwise be entitled to letters of administration as next of kin, or to letters of administration with the will annexed, as residuary or specific legatee, shall be a minor, such letters shall be granted to his guardian, being in all respects compe- tent, in preference to creditors or other persons. § 34. Administration may be granted to one or more competent persons, although not entitled to the same, with the consent of the person entitled, to be joined with such person, which consent shall be in writing, and be filed in the office of the surrogate. Zizecutor de son tort. § 60. Every person who shall take into his possession any of the assets of any testator or intestate without being thereto duly authorized as executor, administrator, or collector, APPENDIX OP SELECTED STATUTES. 685 or without authority from the executor, administrator, or collector, shall be liable to account for the full value of such assets to every person entitled thereto, and shall not be allowed to retain or deduct from such assets for any debt due to him. Inventory. Tit. 3, § 2, The executors and administrators of any testator or intestate, within a reasonable time after qualifying, and giving the notice in the next section required, with the aid of ap- praisers so appointed by the surrogate, shall make a true and perfect inventory of all the goods, chattels, and credits of such testator or in- testate, and where the same shall be in different and distant places two or more such inventories, as may be necessary. Assets. § 6. The following property shall be deemed assets, and shall go to the executors or administrators, to be applied and distributed as part of the personal estate of their testator or intestate, and shall be included in the inventory thereof : — 1. Leases for years, lands held by the deceased from year to year^ and estates held by him for the life of another person. 2. The inter- est which may remain in the deceased at the time of his death in a term for years after the expiration of any estate for years therein, granted by him or any other person. 3. The interest in lands de- vised to an executor for a term of years for the payment of debts. 4. Things annexed to the freeliold or to any building for the purpose of trade or manufacture, and not fixed into the wall of a house so as to be essential to its support. 5. The crops growing on the land of the deceased at the time of his death. 6. Every kind of produce raised annually by labor and cultivation, excepting grass growing and fruit not gathered. 7. Rents reserved to the deceased which had accrued at the time of his death. 8. Debts secured by mortgages, bonds, notes, or bills ; accounts, money, and bank bills, or other cir- Gidating medium, things in action, and stocks in any company, whether incorporated or not. 9. Goods, wares, merchandise, utensils, furni- ture, cattle, provisions, and every other species of personal property and effects not hereinafter excepted. "Widow's Allowance. § 9. Where a man having a family shall die, leaving a widow or a minor child or children, the following articles shall not be deemed assets, but shall be included and stated in the inventory of the estate without being appraised : — 1. All spinning-wheels, weaving-looms, one knitting-nlachine, one sewing-machine, and stoves put up or kept for use by his family. 2. The family Bible, family pictures, and school-books used by or in 686 APPENDIX OF SELECTED STATUTES. the family of such deceased person, and books not exceeding in value fifty dollars which are kept and used as a part of the family library before the decease of such person. 3. All sheep to the number of ten, with their fleeces, and the yarn and cloth manufactured from the same, one cow, two swine and the pork of such swine and necessary food for such swine, sheep, or cow for sixty days, and all necessary provisions and fuel for such widow or child or children for sixty days after the death of such deceased person. 4. All necessary wearing apparel, beds, bedsteads, and bedding, necessary cooking utensils, the clothing of the family, the clothes of the widow and her ornaments proper for her station, one table, six chairs, twelve knives and forks, twelve plates, twelve teacups and saucers, one sugardish, one milkpot, one teapot, and twelve spoons, and also other household furniture which shall not exceed one hundred and fifty dollars in value. L. 1842, chap. 157. When a man having a family shall die, leaving a widow, or minor child or children, there shall be inventoried by the ap- praisers, and set apart for the use of such widow, or for the use of such widow and child or children, or for the use of such child or children, in the manner now prescribed by the ninth section of title third, chap- ter sixth, of part second of the Revised Statutes, necessary household furniture, provisions, or other personal property, in the discretion of said appraisers, to the value of not exceeding one hundred and fifty dollars, in addition to the articles of personal property now exempt from appraisal by said section. L. 1867, chap. 782. When a widow shall die, leaving her surviving a minor child or children, the same articles and personal property shall be set apart by the appraisers for the benefit of such minor or minors, as is now provided by law in the case of a man dying and leaving a widow or minor children ; and all articles and property set apart in accordance with law for the benefit of a widow and a minor or minors, shall be and remain the sole personal property of such widow after such minor or minors shall have arrived at age. Order of Payment of Debts. Rev. Sts. § 27. Every executor and administrator shall proceed with diligence to pay the debts of the de- ceased, and shall pay the same according to the following order of classes : — 1. Debts entitled to a preference, under the laws of the United States. 2. Taxes assessed upon the estate of the deceased, previous to his death. 3. Judgments docketed, and decree enrolled, against the deceased, according to the priority thereof, respectively. 4. All APPENDIX OP SELECTED STATDTES. 687 recognizances, bonds, sealed instruments, notes, bills, and unliquidated demands and accounts. § 28. No preference shall be given in the payment of any debt, over other debts of the same class, except those specified in the third class ; nor shall a debt due and payable be entitled to preference over debts not due ; nor shall the commencement of a suit for the recovery of any debt, or the obtaining a judgment thereon against the executor or administrator, entitle such debt to any preference over others of the same class. § 29. Debts not due may be paid by an executor or administrator, according to the class to which they may belong, after deducting a rebate of legal interest upon the sum paid, for the time unexpired. § 30. Preference may be given by the surrogate to rents due or ac- cruing, upon leases held by the testator or intestate, at the time of his death, over debts of the fourth class, whenever it shall be made to appear to his satisfaction, that such preference will benefit the estate of such testator or intestate. Order of Notice to Creditors. § 34. Any executor or adminis- trator, at any time, at least six months after the granting of the letters testamentary or of administration, may insert a notice once in each week for six months, in a newspaper printed in the county, and in so many other newspapers as the surrogate may deem most likely to give notice to the creditors of the deceased, requiring all persons hav- ing claims against the deceased, to exhibit the same with the vouchers thereof to such executor or administrator, at the place of his residence or transaction of business, to be specified in such notice, at or before the day therein named, which shall be at least six months from the day of the first publication of such notice. § 39. In case any suit shall be brought upon a claim, which shall not have been presented to the executor or administrator of a deceased person, within six months from the first publication of such notice, as herein before directed, such executor or administrator shall not be chargeable for any assets or monies that he may have paid in satisfac- tion of any claims of an inferior degree or of any legacies, or in making distribution to the next of kin, before such suit was commenced. Ezecutor's Commissions. § 58. On the settlement of the account of an executor or administrator, the surrogate shall allow to him for his services, and if there be more than one, shall apportion among them, according to the services rendered by them respectively, over and above his or their expenses — APPENDIX OP SELECTED STATUTES. For receiving and paying out all sums of money not exceeding one thousand dollars, at the rate of five dollars per cent. For receiving and paying out any sums exceeding one thousand dollars, and not amounting to ten thousand dollars, at the rate of two dollars and fifty cents per cent. For all sums of above ten thousand dollars, at the rate of one dollar per cent. And, in all cases, such allowance shall be made for their actual and necessary expenses as shall appear just 9,nd reasonable. OHIO. Revised Statdtes, 1888. Appointment of Executor. § 5995. When any will shall be duly proved and allowed, the probate court shall issue letters testamentary thereon to the executor, if any be named therein, if he is legally com- petent, and if he shall accept the trust and shall give ibond, if bond required, to discharge the same ; otherwise, the court shall grant let' ters of administration on the estate, as hereinafter provided. Administration cum testamento annezo. § 6000. If any person who is appointed an executor shall refuse to accept the trust, or if^ after being duly cited for that purpose, he shall neglect to appear and accept the same, or if he shall neglect, for twenty days after the pro- bate of the will, to give bond as before prescribed, the court shall grant letters testamentary to the other executors, if there be any-r capable and willing to accept the trust ; and if there is no such other executor, the court shall commit administration of the estate, with the will annexed, to the widow of the deceased, or to his next of kin, or to such other person as would have been entitled thereto, if the deceased had died intestate. Minority Administration. § 6001. When a person appointed ex- ecutor is under the age of twenty-one years at the time of proving the will, administration may be granted with the will annexed, during his minority, unless there be another executor who will accept the trust, in which ease the estate shall be administered by such other executor, until the minor shall arrive at full age, when he may be admitted as executor with the former, upon giving bond as before provided. Order of Administration. § 6005. Administration of the estate of any intestate shall be granted to some one or more of the persons APPENDIX OP SELECTED STATUTES, 689 hereinafter mentioned ; and they shall be, respectively, entitled thereto in the following order, to wit : — 1. His widow, or next of kin, or both, as the couyt may think fit ; and if they do not voluntarily either take or renounce the administra- tion, they shall, if resident within the county, be cited by the court, or notified by a party in interest, for that purpose. 2. If the persons so entitled to administration are incompetent, or evidently unsuitable for the discharge of the trust, or if they neglect, without any sufiicient cause, to take administration of his estate, the court shall commit it to one or more of the principal creditors, if there be any competent and willing to undertake the trust. 3. If there be no such creditor, and the court is satisfied that the estate exceeds the value of one hundred dollars, the court shall commit administration to such other person as it shall think fit ; Provided, however, that letters of administration shall not be issued as on the estate of an intestate until the person to be appointed has made and filed an affidavit that there is not, to his knowledge, any last will and testament of the alleged intestate. Resignation of Executor or Administrator. § 6015. The court issuing letters testamentary or appointing an administrator, may, if it thinks fit, and upon good cause shown, receive the resignation of such executor or administrator, and appoint an administrator in his place. Removal of Executor or Administrator. § 6017. If an executor or administrator, residing out of this State, shall, after being duly notified by any person in interest, as creditor or otherwise, or after being cited by the court for that purpose, neglect to render his ac- counts and settle the estate according to law ; or if any executor or administrator shall become insane, or otherwise incapable of discharg- ing his trust, or evidently unfit therefor, or it shall be made to appear to the court that he has unreasonably neglected to file an inventory of the estate, or has wilfully omitted from the inventory a;ny assets of the estate, or that there are unsettled claims or demands existing between him and the estate which in the opinion of the court may be the sub- ject of controversy or litigation between him and the estate, or persons interested therein, — the court may remove such executor or adminis- trator. Competency of Married "Women. § 6022. When an unmarried woman, who is executrix or administratrix either alone or jointly with another person, shall marry, her husband shall not be executor or ad- ministrator in her right, but the marriage shall operate as an ex- 44 690 APPENDIX OF SELECTED STATUTES. tinguishment of her authority as executrix or administratrix ; and the other executor or administrator, if there is any, may proceed in dis- charging the trust, as if she were dead ; and if there is no other execu- tor or administrator, administration may be granted of the estate not already administered, and such administrator may proceed to discharge the trust, in like manner as if the executrix or administratrix were dead. Widow's Allowance. § 6038. When any person shall die, leav- ing a widow, or minor child, or children, under the age of fifteen years, the following property shall not be deemed assets or administered as such, but shall be included and stated in the inventory of the estate, and signed by the appraisers, without appraising the same : — 1. One family sewing-machine, to be retained by said widow abso- lutely as her own property, and all spinning wheels, weaving looms, and stoves set up and kept in use by the family. 2. The family Bible, family pictures, and school-books used by or in the family of the de- ceased, and books, not exceeding one hundi-ed dollars in value, which were kept and used as part of the family library before the decease of such person. 3. One cow, or if there be no cow, household goods to be selected by the widow, or if there be no widow, by the guardian or next friend of such minor child or children, not exceeding forty dollars in value, or if there be no household goods such as the widow or guar- dian or next friend may desire to select, then forty dollars in money ; all sheep to the number of twelve, their valuation not to be greater than seventy-five dollars, and the wool shorn from them, and the yarn and cloth manufactured by the family ; all flax in possession of the family intended for the use thereof, and the yarn or thread cloth manu- factured therefrom. 4. All the wearing, apparel and ornaments of the family and of the deceased, all the beds, bedsteads, and bedding, cook- ing utensils, and tableware necessary for the use of the family, one clock, one side-saddle, and any other articles of personal property not to exceed one hundred dollars in value, which the widow, or if there be no widow, the guardian or next friend of such minor child or chil- dren, may select, to be valued by the appraisers. § 6040. The appraisers shall also set off, and allow to the widow, and children under the age of fifteen years, if any there be, or if there be no widow, then to such children, sufficient provisions or other prop- erty to support them for twelve months from the death of the decedent ; and if the widow or such children have, since the death of the deceased, and previous to such allowance, consumed for their support any por- APPENDIX OF SELECTED STATUTES. 691 tion of the estate, the appraisers shall take the same into cousideratioa in determiuing the amount of the allowance. Preferred Debts. § 6090. Every executor or administrator shall proceed with diligence to pay the debts of the deceased, and shall apply the assets to the payment of debts in the following order : — 1. The funeral expenses, those of the last sickness, and the ex- penses of administration. 2. The allowance made to the widow and children for their support for twelve monthsi 3. Debts entitled to a preference under the laws of the United States. 4. Public rates and taxes, and sums due the State for duties on sales at auction. 5. Debts due to all other persons. And if there be not enough, after paying any one of said classes, to pay all the debts of the next of the other classes, all the creditors of the latter class shall be paid ratably, in proportion to their respective debts, and no payment shall be made to creditors of any one class until all those of a preceding class or classes, of whose claims the executor or administrator shall have had notice, shall be fully paid. Payment of Debts. § 6109 is similar to the Massachusetts Stat- ute ; q. V. Sale of Heal Estate to pay Debts. § 6136. As soon as the ex- ecutor or administrator shall ascertain that the personal estate in his hands will be insufficient to pay all the debts of the deceased, with the allowance to the widow and children, for their support, twelve months, and the charges of administering the estate, he shall apply to the pro- bate court or the court of common pleas for authority to sell the real estate of the deceased. Commissions of Executors and Administrators. § 6188. Ex' ecutors and administrators may be allowed the following commissions upon the amount of the personal estate collected and accounted for by them, and of the proceeds of the real estate sold under an order of court for the payment of debts, or under directions of the will, which shall be received in full compensation for all their ordinary services ; that is to say : — For the first thousand dollars, at the rate of six per centum. For all above that sum, and not exceeding five thousand dollars, at the rate of four per centum ; and for all above five thousand dollars, at the rate of two per centum. And in all cases, such further allowance shall be made as the court shall consider just and reasonable for actual and necessary expenses, and for any extraordinary services, not required of an executor or 692 APPENDIX OP SELECTED STATUTES. administrator, in the common course of his duty : Provided, however, that when provision shall be made by . the will of the deceased for compensation to any executor, the same shall be deemed a full satis- faction for his services, in lieu of his aforesaid commissions of his share thereof, unless he shall, by an instrument filed in the court, renounce all claim to such compensation given by the will. Insolvent Estates. § 6224. When it shall appear to the court, from the representation of an executor or administrator, that the real and personal estate of the deceased will, probably, be insufiicient for the payment of his debts, the court may, if it thinks fit, appoint two or more fit persons to be commissioners to receive and examine all claims of creditors against the estate of the deceased, and return to the court a list of all the claims that shall have been laid before them, with the sum that they shall have allowed on each claim ; and the commissioners, before entering on the duties of their oflice, shall be sworn to the faithful discharge thereof. PENNSYLVANIA. Brightly Pdedon Dig., and Supplement. Decedent's Estates, Grant of Administration. § 13. Letters tes- tamentary and of administration shall be grantable only by the regis- ter of the county within which was the family or principal residence of the decedent, at the time of his decease, and if the decedent had no such residence in this Commonwealth, then by the register of the county where the principal part of the goods and estate of such dece- dent shall be. And no letters testamentary or of administration, or otherwise, purporting to authorize any person to intermeddle with the estate of a decedent, which may be granted out of this Commonwealth, shall confer upon such person any of the powers and authorities pos- sessed by an executor or administrator, under letters granted within this State. Administration de bonis non. § 14. Whenever the executors, named in any last will and testament, shall all refuse or renounce the trust and execution thereof, the register having jurisdiction as aforesaid may receive the probate of such will, and grant letters of administration with it annexed, to the person by law entitled thereto. APPENDIX OF SELECTED STATUTES. 693 Executor of Executor. § 15. Whenever a sole executor, or the survivor of several executors, shall die, leaving goods or estate of his testator uuadministered, the register having jurisdiction shall, not- withstanding such executor may have made his last will and testa- ment, and appointed an executor or executors thereof, grant letters of administration of all such goods and estate, in the same manner as if such executor had died without having made any testament or last will ; and the executor of such deceased executor shall in no case be deemed executor of the first testator. Iiimitation of Time for Grant of Administration. § 17. No let- ters of administration shall in any case be originally granted upon the estate of any decedent, after the expiration of twenty-one years from the day of his decease, except on the order of the register's court, upon due cause shown. Order of Administration. § 29. Whenever letters of administra- tion are by law necessary, the register having jurisdiction shall grant them in such form as the case shall require, to the widow, if any, of the decedent, or to such of his relations or kindred as by law may be entitled to the residue of his personal estate, or to a share or shares therein, after payment of his debts ; or he may join, with the widow in the administration, such relation or kindred, or such one or more of them as he shall judge will best administer the estate, preferring al- ways, of those so entitled, such as are in the nearest degree of con- sanguinity with the decedent, and also preferring males to females ; and in case of the refusal or incompetency of every such person, to one or more of the principal creditors of the decedent applying there- for, or to any fit person at his discretion : Provided, that if such de- cedent were a married woman, her husband shall be entitled to the administration, in preference to all other persons : And provided fur- ther, that in all cases of an administration with a will annexed, where there is a general residue of the estate bequeathed, the right to ad- minister shall belong to those having the right to such residue ; and the administration in such case shall be granted, by the register, to such one or more of them as he shall judge will best administer the estate. Minority Administration. § 30. Whenever all the executors named in any last will and testament, or all the persons entitled, as kindred, to the administration of any decedent's estate, shall happen to be under the age of twenty-one years, it shall be lawful for the register to grant administration as aforesaid to any other fit person or 694 APPENDIX OF SELECTED STATUTES. persons, subject nevertheless to be terminated at the instance of any of the said minors who shall have arrived at the full age of twenty-one years. Inventory. § 53. It shall be the duty of the said executors and administrators to make a true and perfect inventory of aU the goods, chattels, and credits of the deceased, as far as they may know or can ascertain them, and exhibit the same into the register's office, within thirty days of administration granted. Apportionment of Rent. § 57. The rents of any real estate ac- cruing to any tenant for life of such estate, who had demised the same, for a term or time not fully expired at his decease, shall go to and be vested in the executors or administrators of such tenant, and the due proportion of such accruing rent, to be computed according to the time elapsed at the decease of such tenant, shall be included iu the inventory of personal assets. WidovsT's Allowance. § 64. The widow or the children of any decedent dying within this Commonwealth, testate or intestate, may retain either real or personal property belonging to said estate to the value of three hundred dollars, and the same shall not be sold, but suffered to remain for the use of the widow and family ; and it shall be the duty of the executor or administrator of such decedent to have the said property appraised in the same manner as is provided in the act passed the 9th day of April in the year 1849, entitled " an act to exempt property to the value of three hundred dollars from levy and sale on execution and distress for rent : " Provided, that this section shall not affect or impair any liens for the purchase-money of such real estate. And the said appraisement, upon being signed and cer- tified by the appraisers and approved by the orphans' court, shall be filed among the records thereof. Payment of Debts. § 94. All debts owing by any person within this State, at the time of his decease, shall be paid by his executors or administrators, so far as they have assets, in the manner and order following, viz. : — 1. Funeral expenses, medicine furnished, and medical attendance given during the last illness of the decedent, and servants' wages, not exceeding one year. 2. Rents, not exceeding one year. 3. AU other debts, without regard to the quality of the same ; except debts due to the Commonwealth, which shall be last j)aid. § 95. No executor or administrator shall be compelled to pay any debt of the decedent, except such as are by law preferred in the order APPENDIX OP SELECTED STATUTES. 695 of payment to rents, until one year be fully elapsed from the granting of the administration of the estate. Sale of Real Estate to pay Debts. § 120. "When it shall satisfao- torily appear to the executor or administrator, that the personal estate of the decedent is insufficient to pay all just debts and the expenses of the administration, he shall proceed, without delay, in the manner provided by law, to sell, under the direction of the orphans' court having jurisdiction of his accounts, so much of the real estate as shall be necessary to supply the deficiency; and such, real estate so sold shall not be liable in the hands of the purchaser for the debts of the decedent. Removal of Executor or Administrator. § 247. An executor or administrator may, with the leave of the orphans' court having juris- diction, make a settlement of his accounts, so far as he shall have administered the estate committed to him, and, the same being con- firmed by the court, he may be discharged from the duties of his appointment, and surrender the remainder of the property in his hands to such person as the court may direct. § 253. When any executor, administrator, or guardian shall have been duly declared a lunatic or an habitual drunkard, it shall be law- ful for the orphans' court having jurisdiction over the accounts of such executor, administrator, or guardian, to vacate the letters testa- mentary or of administration granted to such executor, administrator, and to remove such guardian, and to award new letters. § 254. When any executor, administrator, or guardian shall have removed from this State, or shall have ceased to have any known place of residence therein, during the period of one year or more, the orphans' court having jurisdiction of the account of such execu- tor, administrator, or guardian, may, on the application of any person interested, and after a citation shall have been returned, served, or published, as hereinafter provided, make a decree vacating such letters testamentary or of administration, and remove such guardian, and award new letters. § 258. Whenever any sole executor, administrator, guardian, com- mittee, or trustee shall become incompetent to discharge the duties of their respective trusts, by reason of sickness or other visitation, and it shall appear to the satisfaction of the court having jurisdiction of their accounts, that such incompetency is likely to continue, to the injury of the estates under their control, it shall be lawful for such court to make a decree vacating the letters testamentary or of administration 696 APPENDIX OP SELECTED STATUTES. granted to such executor or administrator, or revoking the appoint- ment of such guardian, committee, or trustee ; after which new letters shall be granted and appointments made, in the same manner as in other cases of vacancy in such trusts. RHODE ISLAND. Public Statutes, 1882. Appointment of Executor. Pub. Sts. chap. 184, § 1. Upon the probate of the will of any deceased person, letters testamentary shall be granted to the executor named therein, provided he be of full age, and not insane or otherwise incapable to discharge the trust reposed in him, and give bond as hereinafter required. Administration cum testamento annexo. § 2. Upon the neglect or refusal of the executor named in any will to present the same for probate, the court of probate shall commit administration of the es- tate of the deceased to one or more of the devisees or legatees, or in case of their refusal, to one or more of the principal creditors, or to such other person as the court shall think fit. Minority Administration. § 3. If the executor named in the will be under the age of twenty-one years at the time of proving the will, administration may be granted, with the will annexed, dur- ing the minority of such executor, to such person as the court shall think fit. Order of Administration. § 4. Administration of the estate, both real and personal, of a person dying intestate shall be granted to the widow or next of kin of the intestate, being suitable persons, and of the age of twenty-one years, or to both, as the court of probate shall think fit. § 5. After the expiration of thirty days from the death of any person intestate, in case the widow or next of kin shall neglect to take out letters of administration, or to apply therefor within that time, or shall be adjudged not a suitable person, the said court may commit administration of such estate to some suitable person of full age, not being at the time a member of the court. § 7. The husband shall be entitled to the administration of the personal estate of his wife in case of her intestacy, and shall not be APPENDIX OP SELECTED STATUTES, b9 ( compelled to distribute the same among the next of kin, but shall have and retain the surplus thereof, after payment of her debts, for his own use. Competency of Non-resident. § 6. No person not an inhabitant of this State shall be appointed administrator by reason of any right to such trust, unless other circumstances in the opinion of the court render such an appointment proper. Administration upon the Estate of One supposed deceased. § 8. If any person shall be absent from this State for the term of three years, without due proof of his being alive, the last wUl and testament of such person may be proved, and administration may be granted on the estate of such person as if he were dead. § 9. If such person shall afterwards return to this State, or shall constitute an agent or attorney to act in his behalf, the executor or administrator as aforesaid shall be accountable for and shall deliver to such person or his lawful agent or attorney all the estate of every kind which shall then be in his hands as executor or administrator as aforesaid, after deducting such sum or sums as the court of probate shall allow, in the settlement of his accounts, for any payments or dis- bursements which he may have legally made in his said capacity, or which such court of probate may think reasonable to allow for his personal trouble in executing the trust of executor or administrator as aforesaid. . Exemption from giving Bond, or Sureties on Administration Bond. § 14. An executor shall be exempt from giving a bond or from giving a bond with sureties whenever the testator shall have ordered or requested such exemption : Provided, however, that the court may, at or after granting letters testamentary, require bond with sureties, if the court should be of opinion that the same is required by a change in the circumstances or situation of the executor, or for other sufficient cause. Bond of Residuary Legatee. § 16. If the executor be residuary legatee, he may, instead of the above bond, give bond only to pay the funeral charges, debts, and legacies of the testator, and need not ren- der an account to the court of probate. Competency of Married Women. § 19. Whenever any unmar- ried woman shall jointly with one or more persons be appointed execu- trix or administratrix, and after such appointment shall marry during the life of the other executor or administrator, such marriage shall not make the husband an executor or administrator in her right, but 698 APPENDIX OP SELECTED STATUTES. shall operate as an extinguishment or determination of the power and authority of such woman ; and the other executor or executors, admin- istrator or administrators, may proceed in discharging the trust reposed in them in the same way and manner as if such woman were dead. § 20. Whenever any unmarried woman, executrix or administra- trix, shall marry, such marrying shall not make her husband an executor or administrator in her right, but shall operate as an ex- tinguishment of the power of such woman ; and the court of probate shall thereupon grant administration upon the unadministered part of the estate to such husband, or to any other suitable person, who may prosecute or defend any suit which may have been commenced by or against the first executrix or administratrix, in the same manner and to the same purpose and effect as she might have prosecuted or de- fended the same if her trust had been continued. Executor of Executor. § 23. In no case shall the executor of a deceased executor, in consequence thereof, become an executor of the first testator. Removal of Executors or Administrators. § 24. If any execu- tor or administrator shall neglect or refuse, after due notice from the court of probate, to render his account and make a settlement of such estate with the creditors, legatees, next of kin, or their legal repre- sentatives, or if any executor or administrator shall become insane or evidently unsuitable to discharge the trust reposed, in him, the court of probate that proved the wiU or granted letters of administration may remove such executor or administrator, and may grant letters of administration, with the will annexed or otherwise, as the case may re- quire, to such person as they shall think fit ; and the administrator so appointed shall have full power and authority to administer the estate of the deceased not administered by such former executor or administrator. Resignation of Executor or Administrator. § 25. Whenever an executor or administrator shall in writing resign his trust to the court appointing him, such court may accept such resignation and ap- point a successor, who shall have all the power that the person re- signing had ; but no resignation shall be accepted until the person resigning shall have settled his accounts with such court. Inventory. Chap. 185, § 1. Every administrator, except the hust band as administrator on the personal estate of his wife, and every executor, unless he has given bond to pay the funeral charges, debts, and legacies of the testator, shall, within three months after his ap- APPENDIX OF SELECTED STATUTES. 699 pointment, return to the probate office, under oath, a true inventory of all the goods, chattels, rights, and credits of the deceased that shall have come to the knowledge of such executor or administrator. § 3. The wearing apparel of any person deceased not exceeding in value the sum of two hundred dollars, not including in wearing ap- parel, jewels, and watches, shall not be included in the inventory, nor be considered as assets in the hands of the executor or administrator for the payment of debts, but may be bequeathed ; and if not be- queathed, shall go to the next of kin of the deceased. Widow's AUo-wance. § 4. The widow of any deceased person shall, in all cases, be entitled to her apparel and to that of her chil- dren, and to such bedding and other household goods, supplies on hand, and such other property of the husband as is exempt from attachment by law, as the court of probate shall judge necessary according to her situation and the circumstances of the estate, and such part of the per- sonal estate as the court shall allow to the widow, shall not be assets, although inventoried in the hands of the executor or administrator ; and if there be no children of the deceased person, or their descend- ants, living at the time of the decease, the said court of probate shall also allow and set off to the widow such portion of the real estate of her deceased husband which shall not be required for the payment of debts, as may be suitable for her situation and support, and be in accordance with the circumstances of the estate ; and such widow shall hold such real estate, in addition to her dower, upon the same terms and conditions and for the same period as she holds her estate of dower. Debt of Executor. § 6. The appointment of debtor as an execu- tor shall in no case be deemed an extinguishment of the debt ; but all such debts shall be accounted for as assets by the executor unless otherwise directed by the will. Mortgage is Personal Property. § 7. Debts due by mortgage of real estate and the mortgaged premises shall, before foreclosure of the mortgage, be considered personal property for the purpose of set- tling the estates of deceased persons, and as such shall be included in the inventory as assets in the hands of the executor or administrator, and be distributed. Payment of Debts. Chap. 186, § 1. Whenever the estate of any person deceased shall be insolvent or insufficient to pay all the just debts which the deceased owed, the same shall, after deducting the necessary expenses incident to administration, be distributed to and 700 APPENDIX OF SELECTED STATUTES. among all the creditors, in proportion to the sums to them respectively owing, so far as the said estate will extend, saving that the debts due to the United States and necessary funeral charges of the deceased, the charges for attendance and medicines in the last sickness, debts due to this State, and all State and town taxes are to be first paid, and in the order in which they are named. Chap. 189, § 1. The estate of every deceased person shall be chargeable with the expenses of administeriag the same, the funeral charges of the deceased and the payment of his just debts, and the same shall be paid by the executor or administrator of the estate out of the same, so far as the same shall be sufficient therefor. Insolvent estates, chap. 186, is similar to the statutes of Massa- chusetts. Limitation of Actions against Estate. Chap. 189, § 8. No action shall be brought against any executor or administrator in his said capacity within one year after the will shall be proved or admin- istration granted, nor after three years from the time of such proof or grant, except for the causes mentioned in section seventeen of chapter one hundred and eighty-six, provided notice of his appointment be given according to law, said periods to be reckoned from the time of giving such notice. Liability of Real Estate for Debts of Deceased. § 14. The lia- bility of the real estate of deceased persons for the payment of their just debts may be enforced by actions of the case, to be brought against the heirs-at-law or devisees of such estate, provided the personal es- tate of the testator or intestate be insufficient for the payment of his debts, funeral charges, and expenses of supporting his family and set- tling his estate. § 15. Such action shall be brought against all the heirs and de- visees who took such estate by devise or descent from the testator or intestate, if to be found in person or estate. Sale of Real Estate to pay Debts. Chap. 179, § 11. They shall in like manner have power to examine into petitions of guardians to sell, at public or private sale, or to mortgage like property or any mixed estates and all estates of their wards necessary to be conveyed as real estate, to pay their debts, the expenses of supporting them and their families, or for any other proper purpose whatsoever, in- cluding the making of a better and more advantageous investment and the settlement of their estates, with incidental charges. Accounts. Chap. 190, § 4. All assets, though not inventoried, APPENDIX OF SELECTED STATUTES. 701 shall be accounted for, and the executor or administrator shall be charged therewith in the account of administration. § 5. The whole of the personal estate of the deceased, except money due, shall be accounted for by the executor or administrator at double the appraised value thereof, unless the whole shall be sold at public auction, or unless the court of probate shall direct the same or a part thereof to be sold at private sale, in which case the net pro- ceeds only of the whole or part so sold shall be accounted for. SOUTH CAROLINA. General Statutes, 1882. Administration de bonis non. § 1881. Whenever a deceased person shall have left a will in writing without having appointed an executor therein, or, having appointed one or more executors, all of them shall have departed this life without having qualified thereon, or, being alive, shall have refused to qualify, or, some or all of them having qualified, shall have departed this life, leaving the estate not fully administered, it shall be the duty of the judge of probate, in whose court such will shall have been proved, to grant letters of ad- ministration, with the. will annexed, to such persons as shall have the greatest interest in sustaining such will, in the order of their interests. And in case no person taking interests under such will shall apply within three months after the death of the testator, then to the great- est creditor or creditors ; and in default of such applying, then to such other persons as may apply therefor. Incompetency. §1889. No executor or executrix shall take upon himself or herself the administration of any will or devise, unless he or she be of the full age of twenty-one years. Order of Administration. § 1893. In case any person die intes- tate, the judge of probate of the county where the will of such person, had he left a will, would have been proved, shall grant administration of the goods, chattels, rights, and credits of such person deceased, to his or her relations, in the order following, to wit : — (1) To the husband or wife of the deceased : Provided, always, that if any widow, after having obtained letters of administration, shall marry again, the judge of probate shall have power to revoke the ad- ministration before granted, or join one or more of the next of kin in 702 APPENDIX OF SELECTED STATUTES. the administration with her ; (2) If there be no husband or wife of the deceased, or they do not apply, then to the child or children, or their legal representatives ; (3) In default of them, then to the father or mother ; (4) In default of them, to the brothers and sisters ; (5) In default of them, to such of the next of kindred of the deceased, at the discretion of the judge of probate, as shall be entitled to a distributive share of the intestate's estate ; and (6) In default of such, to the greatest creditor or creditors, or such other persons as the court shall appoint. Preferred Claims. § 1895. All debts of an equal nature shall be discharged by such administrator in average and proportion, as far as the assets of the intestate shall extend, and no preference shall be given among the creditors in equal degree. Executor of Executor. § 1904. No executor of an executor shall have authority, as such, to administer the estate of the first testator ; but on the death of the sole or surviving executor of any last will and testament, administration of the estate of the first testator, not already administered, may be granted with the will annexed, to such person as would have been entitled thereto had the first testator died intestate. Time of Settlement of Estate. § 1912. No distribution of the goods of any person dying intestate shall be made till after one year be fully expired after the intestate's death. Notice to Creditors. § 1924. Every executor or administrator shall give three weeks' notice, by advertisement in one of the gazettes printed in the county, or if there be none, in some gazette of general circulation in the county, for creditors of the estate in his charge to render an account of their demands, duly attested ; and he shall be allowed twelve months to ascertain the debts due from the deceased, reckoning from probate of will or grant of administration. Preferred Debts. § 1926. The assets which come to the hands, of an executor or administrator, after proper allowance to the executor or administrator, in a due course of administration, shall be applied to the payment of his debts in the following order, that is to say : — 1. Funeral and other expenses of the last sickness, charges of probate, or letters of administration. 2. Debts due to the public; 3. Judgments, mortgages, and executions, — the oldest first. 4. Rent. 6. Bonds, debts by specialty, and debts by simple contract. Mort- gages, however, not to be entitled to priority over rents and debts by specialty or by simple contract, except as to the particular parts of the estate aiiected by the liens of such mortgages. APPENDIX OF SELECTED STATUTES. 703 No preference shall be given among the creditors in equal degree where there is a deficiency of assets, except according to legal priorities. TENNESSEE. Code, 1884. Order of Administration. § 3047. When any person shall die intestate in this State, administration shall be granted to the widow of such person if she make application for the same ; for want of such application on the part of the widow, the administration shall be granted to the next of kin, if such next of kin apply therefor. If neither the widow nor next of kin make application for admi'jistra- tion, then the same shall be granted to the largest creditor proving his debt on oath before the county court or county judge ; Provided, that when there is more than one next of kin, the county court may decide which of them shall be entitled to administration. Time limited for granting Administration, § 3061. The time within which administration may be granted shall be as follows : — 1. Where a person dies entitled to a vested or contingent remain- der, not reduced to possession in his lifetime, ten years after the termination of the life or other particular estate on which the re- mainder depends, shall be given to administer upon his estate in said remainder. 2. Administration may be granted at any time within thirty years from the death of the deceased to any person entitled to distribution, who was an infant or married woman when the deceased died. 3. A special administration may be granted for the purpose of prosecuting any claim against the government of the United States, without any limitation of time. 4. But in no other case shall letters of administration be granted where the deceased died twenty years before application made for the same ; and all letters testamentary or of administration granted after the said period of twenty years to any other than a distributee, who was such infant or married woman, shall be utterly void and of no effect. Notice to Creditors. § 3087. That all creditors may be duly ap- prised of the death of any person indebted to them, the executor or 704 APPENDIX OP SELECTED STATUTES. administrator of the deceased shall, within two months after qualifica- tion, advertise at the court house of the county where the deceased usually dwelt at the time of his death, and other public places in the county, for all persons to bring to him their accounts and demands. § 3112. Executors and administrators shall have six months from the date of their qualification to ascertain the situation of the de- ceased's estate, and to arrange and settle it without being liable to suit and costs ; and all suits commenced within that period may be abated and dismissed at the plaintifE's cost, except suits brought by sureties of the deceased, which may be brought without delay. Preferred Debts. § 3088. Debts due upon bills single, bonds, bills of exchange, and promissory notes, whether with or without seal, and upon settled and liquidated accounts signed by the debtor, are of equal dignity in a course of administration and are to be paid accordingly. § 3089. In all other respects, personal representatives shall have the same right of preference in the payment of creditors as they have heretofore had by law. Creditor's Administration. § 3091. Where administration is granted to any person on account of his being a creditor of the in- testate, and there are not personal assets sufficient to satisfy the debt or demand of such administrator, he may prefer against the heirs or devisees of the deceased for the recovery of his debt or demand, to the circuit court of the county, or chancery court of the division, in which the administration was granted, a petition, setting forth the nature of the debt or demand, and the amount of it, praying that the heir or heirs may be made defendants thereto. Sale of Real Estate to pay Debts. § 3105. Where an executor not authorized by will to sell and convey real estate, or an adminis- trator has exhausted the personal estate of the deceased in the pay- ment of his debts, leaving just debts or demands against him unpaid or paid by the representative out of his own means, and the deceased died seized and possessed of real estate, the chancery or circuit court of the district or county where the same or a portion of it lies, may, on the petition of the representative, or any bona Jlde creditor whose debt remains unpaid, decree the sale of such lands or of such portions thereof as may prove least injurious to the heirs and legal represen- tatives, and as may be sufficient to satisfy the debts or demands set forth in the bill or petition, and shown to exist. Limitation of Actions against Estate. § 3117. The creditors of APPENDIX OP SELECTED STATUTES. 705 deceased persons, if they reside within this State, shall, within two years, and if without, shall, within three years from the qualification of the executor or administrator, exhibit to him their accounts, debts, and claims, and make demand and bring suit for the recovery thereof, or be forever barred in law and equity. § 3119. Infants, persons of unsound mind, and married women may bring their several actions within one year after the removal of their respective disabilities, notwithstanding the lapse of said periods of two and three years, so that such suit be brought within seven years after the death of the debtor, if the cause of action accrued in his lifetime, or otherwise within seven years from the time the cause of action accrued. Insolvent Estates. § 3170. Insolvent estates of deceased persons shall be divided among the creditors ratably, and no action brought, judgment, bill single, or note of hand shall have precedence over un- liquidated accounts presented and filed, authenticated according to law ; but all such claims shall be acted upon as being of equal grade. TEXAS. Revised STAiniES, 1879. Limit of Time for granting Administration. Art. 1827. All ap- plications for the grant of letters testamentary or of administration upon an estate, must be filed within four years after the death of the testator or intestate, and if four years have elapsed between the death of such testator or intestate and the filing of such application, such application shall be refused and dismissed. Incompetency. Art. 1857. Letters testamentary or of adminis- tration shall not be granted to any person who is under twenty-one years of age, or of unsound mind ; Provided, however, that such letters may be granted to a surviving husband or wife who may be under twenty-one years of age. Order of Administration. Art. 1861. Letters testamentary or of administration shall be granted to persons who are qualified to act, in the following order : — 1. To the person named as executor in the will of the deceased. 2. To the surviving husband or wife. 3. To the principal devisee or 45 706 APPENDIX OP SELECTED STATUTES. legatee of the testator. 4. To any devisee or legatee of the testator. 5. To the next of kin of the deceased, the nearest in the order of descent first, and so on. 6. To a creditor of the deceased. 7. To any person of good character residing in the county. Art. 1862. When applicants are equally entitled, the letters shall be granted to the applicant who in the judgment of the court is most likely to administer the estate advantageously, or they may be granted to any two or three of such applicants. Removal of Executor or Administrator. Art. 1973. Executors and administrators may be removed by the county judge without no- tice, at a regular term of the court, by an order entered on the minutes of the court, in the following cases : — 1. When they neglect to qualify in the manner and within the time required in this title. 2. When they neglect to return to the court an inventory and appraisement, and list of claims of the estate, in the manner and within the time required in this title. 3. When they have been required to give a new bond and neglect to do so within the time prescribed by the court. 4. When they absent themselves from the State for a period of three months at one time, without per- mission of the court. 5. In such other cases as are specially provided for in this title. Art. 1974. Executors and administrators may be removed by the county judge on his own motion, or on the complaint of any person interested in the estate, after being cited to answer such motion or complaint, at a regular term of the court, in the following cases : — 1. When they shall fail to make to the court any exhibit that they are required to make by the provisions of this title. 2. When there shall appear sufficient grounds to believe that they have misapplied, embezzled, or removed from the State the property, or any part thereof, committed to their charge, or that they are about to misapply, em- bezzle, or remove from the State any of such property. 3. When it is proved that they have been guilty of gross neglect or mismanage- ment in the performance of their duties as such executors or adminis- trators. 4. When they fail to obey any order of the court consistent with this title, made in relation to the estate committed to their charge. 5. When an executor or administrator becomes of unsound mind, or from any other cause is incapable of performing the duties of his trust. Resignation of Executor or Administrator. Art. 1981. If upon such examination and settlement it shall appear that such executor or administrator has accounted for all said estate according to law, the APPENDIX OP SELECTED STATUTES. 707 county judge shall enter an order upon the minutes, approving sucli exhibit and account, and requiring such executor or administrator to deliver the estate, if there be any remaining in his possession, to some person qualified by law to receive it. Art. 1982. When such executor or administrator has delivered the estate in accordance with the order of the court to some person quali- fied to receive it, and has produced to the court satisfactory evidence of that fact, the court shall enter an order upon the minutes, either in term time or in vacation, accepting the resignation of such executor or administrator and discharging him from such trust. Widow's Allowance. Art. 1984. At the first regular term of the court after the original grant of letters testamentary or of administra- tion, or at any subsequent term thereafter, within twelve months after the grant of such original letters, it shall be the duty of the court to fix the amount of an allowance for the support of the widow and minor children of the deceased. Art. 1985. Such allowance shall be of an amount sufficient for the maintenance of such widow and minor children for the term of one year from the time of the death of the testator or intestate, and such allowance to be fixed with regard to the facts existing during the first year after the death of such testator or intestate. Notice to Creditors. Art. 2010. It shall be the duty of an ex- ecutor or administrator, within one month after receiving letters, to publish in some newspaper printed in the county where the letters were issued, if there be one, a notice requiring all persons having claims against the estate of the testator or intestate, to present the same within the time prescribed by law, which notice shall state the time of the original grant of letters testamentary or of administra- tion, and the residence and post-office address of such executor or ad- ministrator, and shall be published once a week for four successive weeks. Art. 2015. Every claim for money against a testator or intestate shall be presented to the executor or administrator within twelve months after the original grant of letters testamentary or of adminis- tration, or the payment thereof shall be postponed until the claims which have been presented within said twelve months and allowed by the executor or administrator and approved by the county judge have been first entirely paid. Preferred Debts. Art. 2037. The claims against an estate shall be classed, and have priority of payment, as follows : — 708 APPENDIX OP SELECTED STATUTES. 1. Funeral expenses and expenses of last sickness. 2. Expenses of administration and the expenses incurred in the preservation, safe- keeping, and management of the estate. 3. Claims secured by mort- gage or other liens so far as the same can be paid out of the proceeds of the property subject to such mortgage or other lien, and when more than one mortgage or lien shall exist upon the same property the oldest shall be first paid ; but no preference shall be given to such claims secured by mortgage or lien further than regards the property subject to such mortgage or other lien. 4. All claims legally exhib- ited within one year after the original grant of letters testamentary or of administration. 5. All claims legally exhibited after the lapse of one year from the original grant of letters testamentary or of administration. Art. 2038. Where there is a deficiency of assets to pay all claims of the same class they shall be paid pro rata, and no exec\itor or admin- istrator shall be allowed to pay any claims whether the estate is sol- vent or insolvent, except with their pro rata amount of the funds of the estate that have come to hand. Art. 2039. Executors and administrators, whenever they have funds in their hands belonging to the estate they represent, shall pay, — 1. Funeral expenses and expenses of last sickness, if the claims therefor have been presented within sixty days from the original grant of letters testamentary or of administration, but if not presented withij such time their payment shall be postponed until the allowances made to the widow and children, or either, are paid. 2. Allowances made to the widow and children, or either. 3. Expenses of adminis- tration and the expenses incurred in the preservation, safe-keeping, and management of the estate. 4. Other claims against the estate in the order of their classification. Sale of Real Estate to pay Debts. Art. 2068. It shall be the duty of the executor or administrator, so soon as he shall ascertain that it is necessary, to apply to the county judge, at some regular term of the court, for an order to sell so much of the real estate belonging to the estate he represents as he shall think to be sufficient to pay the local charges and claims against the estate. APPENDIX OP SELECTED STATUTES. ' 709 VEEMONT. Revised Laws, 1880. Appointment of Executor. § 2063. When a will has been proved and allowed, the probate court shall issue letters testamentary thereon to the person named executor therein, if he accepts the trust and gives a bond as required by law. Order of Administration. § 2064. If no executor is named In the will, or if a person dies intestate, administration shall be granted, — 1. To the widow or next of kin, or both, as the probate court thinks proper, or to such person as the widow or next of kin requests to have appointed, if suitable to discharge the trust. 2. If the widow or next of kin, or the persons selected by them, are unsuitable, or if the widow or next of kin neglects for thirty days after the death of the deceased, to apply for administration, or to request that adminis- tration be granted to some other person, it may be granted to one or more of the principal creditors, if competent and willing to take it. 3. If there is no such creditor competent and willing to take adminis- tration, the same may be committed to such other person as the probate court judges proper. Bond of Residuary Legatee. § 2067. An executor who is resid- uary legatee, instead of the bond prescribed in the preceding section, may give a bond in such sum and with such sureties as the court directs, with a condition only to pay the debts and legacies of the tes- tator ; and in such case he shall not be required to return an inven- tory. And if the testator in his will directs that no bond or only the individual bond of the executor be required, instead of the bond prescribed in the preceding section, he may give his individual bond as directed in the will ; but he shall also give a bond in such sum and with such sureties as the court requires, with a condition only to pay the debts of the testator ; but the court may require of the executor a further bond in case of a subsequent change in the circumstances of the executor, and for other sufficient cause, with the second, third, and fourth conditions named in the preceding section. Removal of Ezecutor or Administrator. § 2074. If an executor or administrator resides out of the State, or neglects, after notice by the probate court, to render his account and settle the estate accord- ing to law, or to perform an order or decree of such court, or ab- sconds, or becomes insane, or otherwise incapable or unsuitable to discharge the trust, the probate court may, in its discretion, remove 710 • APPENDIX OP SELECTED STATUTES. him, and it may allow an executor or administrator to resign when it appears proper. Competency of Married Woman. § 2075. When an unmarried woman who is administratrix or executrix, alone or jointly with an- other person, marries, her authority as administratrix or executrix shall cease. Effect of Removal of Executor or Administrator. § 2080. The acts of an executor or administrator before the revocation of his let- ters testamentary or of administration shall be valid the same as if there had been no revocation. Special Administrator. § 2081. When there is delay in granting letters testamentary or letters of administration, occasioned by an ap- peal from the allowance or disallowance of a will, or from other cause, the probate court may appoint an administrator to act in collecting and taking charge of the estate of the deceased until the questions causing the delay are decided, and an executor or administrator is thereupon appointed ; and no appeal shall be allowed from the ap- pointment of such special administrator. Inventory. § 2090. Every executor or administrator, unless he is residuary legatee and has given the bond prescribed for residuary legatee, shall within three months after his appointment return to the probate court a true inventory of the real estate and all the goods, chattels, rights, and credits of the deceased coming to his possession or knowledge. ■Widow's Allowance. § 2093. The wearing apparel of the de- ceased ; if he leaves a widow, the articles of apparel and ornament of the widow, according to the estate and degree of her husband ; the apparel of the minor children, and such provisions and other articles as will necessarily be consumed in the subsistence of the family of the deceased, under the direction of the probate court, shall not be con- sidered as assets, nor be administered as such, and shall not be included in the inventory. § 2108. The widow of a deceased person shall receive out of her husband's personal estate not lawfully disposed of by his last will all her articles of apparel and ornament, the wearing apparel of the de- ceased, and such other part of the personal estate of the intestate as the probate court assigns to her, according to her circumstances and the estate and degree of her husband, which shall not be less than one-third after the payment of the debts, funeral charges, and ex- penses of administration. , APPENDIX OP SELECTED STATUTES. Til Sale of Real Estate to pay Debts. § 2166. When the personal estate of the deceased is not sufficient to pay the debts and charges of administration without injuring the business of those interested in the estate, or otherwise prejudicing their interests, and where a testator has not otherwise made sufficient provision for the payment of such debts and charges, the probate court, on the application of the execu- tor or administrator, with the consent and approbation in writing of the heirs, devisees, and legatees residing in the State, may grant license to the executor or administrator to sell for that purpose real estate, in lieu of personal estate, if it clearly appears that such sale of real estate would be beneficial to the persons interested, and will not defeat any devise of lands ; in which case the assent of the devisee shall be required. Payment of Debts. § 2190. If the assets which can be appro- priated for the payment of debts are not sufficient for that purpose, the executor or administrator shall, after paying the necessary ex- penses ot administration, pay the debts against the estate in the following order : — 1. The necessary funeral expenses. 2. The expenses of the last sickness. 3. Taxes. 4. Debts due to the State. 5, Debts due to the United States. 6. Debts due to other creditors. VIEGINIA. Code, 1887. Executor of Executor. § 2643. The executor of an executor shall have no authority as such to administer the estate of the first testator, but on the death of the sole surviving executor of any last will, ad- ministration of the estate of the first testator, not already adminis- tered, may be granted, with the will annexed, to such person as the court shall think fit to appoint. Competency of Married "Women. § 2644. Where an unmarried woman, who is personal representative, either alone or jointly with another, shall marry, her husband shall not be a personal represen- tative in her right, but the marriage shall operate as an extinguish- ment of her authority ; and the other personal representative, if there be any, may proceed in discharging the trust as if she were dead ; 712 APPENDIX OF SELECTED STATUTES. and, if there be no other, administration de bonis non (with the will annexed, if there be a will) may be granted by the court. Preferred Debts. § 2660. Where the assets of the decedent in the hands of his personal representative, after the payment of funeral ex- penses and charges of administration, are not sufficient for the satis- faction of all demands against him, they shall be applied — 1. To claims of physicians not exceeding fifty dollars, for services rendered during the last illness of the decedent, and accounts of drug- gists not exceeding the same amount for articles furnished during the same period. 2. To debts due to the United States. 3. To taxes and levies assessed upon the decedent previous to his death. 4. To debts due as trustee for persons under disabilities, as receiver or commis- sioner under decree of a court of this State, as personal representative, guardian, or committee, where the qualiflcation was in this State, in which class of debts shall be included a debt for money received by a husband acting as such fiduciary in right of his wife. 5. To all other demands, except those in the next class ; and 6. To voluntary obligations. Sale of Real Estate to pay Debts. § 2665. All real estate of any person who may hereafter die, as to which he may die intestate, or which, though he die testate, shall not by his will be charged with or devised subject to the payment of his debts, or which may remain after satisfying the debts with which it may be so charged or subject to which it may be so devised, shall be assets for the payment of the decedent's debts and all lawful demands against his estate, in the order in which the personal estate of a decedent is directed to be applied. WISCONSIN. Revised Statutes, 1878. Exemption from Sureties on Bond, § 3795. If the executor shall be sole or residuary legatee, instead of the bond prescribed in the preceding section, he may give a bond, in such sum and with such sureties as the court may direct, with a condition only to pay all the debts and legacies of the testator, and in such case, he shall not be re- quired to return an inventory. An executor named in any will may be exempt from giving bond, when the testator has so ordered or re- APPENDIX OP SELECTED STATUTES. 713 quested in his will, unless the county court shall order otherwise ; and such court may require a bond, with sureties, of any such executor, at any time pending the settlement of the estate. Minority Administration. § 3797. "When the person named ex- ecutor in any will is under full age at the time of proving such will, administration shall be granted with the will annexed, during the minority of the executor, unless there shall be another executor named, who shall accept the trust and give a bond ; and in such case, the executor who shall give bond shall have letters testamentary, and shall administer the estate until the minor shall arrive at full age, when he may be admitted as joint executor on giving the requisite bond. Executor of Executor. § 3800. The executor of an executor shall not as such have any authority to administer the estate of the first tes- tator, but on the death of the only surviving executor of any will, ad- ministration of the estate of the first testator, not already administered, may be granted with the will annexed to such person as the county court may judge proper. Competency of Married Women. § 3802. When an unmarried woman appointed an executrix or administratrix alone, or jointly with another person, shall marry, her marriage shall extinguish her au- thority as executrix or administratrix, but her husband shall not be executor or administrator in her right. Removal of Executor or Administrator. § 3803. If an adminis- trator shall reside out of this State, or if an executor or administrator shall neglect, after due notice given by the county court, to render his account and settle the estate according to law, or to perform any judg- ment of the court, or shall abscond, or become insane, or otherwise incapable or unsuitable to discharge the trust, the county court may remove such executor or administrator. Order of Administration. § 3807. Administration of the estates of intestates shall be granted to some one or more of the persons here- inafter mentioned, and they shall be respectively entitled to the same in the following order : — 1. The widow or next of kin, or both, as the county court may think proper, or such person as the widow or next of kin may re- quest to have appointed, if suitable and competent to discharge the trust. 2. If the widow or next of kin, or the person selected by them, shall be unsuitable or incompetent, or if the widow and next of kin shall neglect for thirty days after the death of the intestate to 714 APPENDIX OF SELECTED STATUTES. apply for administration or to request that administration be granted to some other person, the same may be granted to one or more of the principal creditors, if any such are competent and willing to take it. 3. If there be no widow, next of kin, or creditor competent and will- ing to take administration, the same may be committed to such other person as the county court may think proper. Possession of Real Estate. § 3823. The executor or administra- tor shall have a right to the possession of all the real as well as per- sonal estate of the deceased, except the homestead, and may receive the rents, issues, and profits of the real estate, except the homestead, until the estate shall have been settled, or until delivered over, by order of the county court, to the heirs or devisees, and shall keep in good tenantable repair all houses, buildings, and fences thereon which are under his control. Proof of Claims against Estate. § 3838. On gi-anting letters tes- tamentary or of administration by any county court, it shall be the duty of such court to receive, examine, and adjust the claims and demands of all persons against the deceased ; but such court may, in its discretion, upon the application of the executor or administrator, or of any party in interest, appoint not exceeding three suitable per- sons to be commissioners to receive, examine, and adjust such claims and demands, whenever it shall appear probable to said court that such claims or demands, in the aggregate, exceed five hundred dol- lars, and that there are assets amounting to tliat sum that ought, under existing laws, to be applied to the payment of debts. § 3839. The county court shall appoint convenient times and places when and where the court, or commissioners, will receive, examine, and adjust such claims, and within sixty days after granting letters testa- mentary or of administration, shall give notice of the times and places fixed for that purpose, and of the time limited for creditors to present their claims, by causing a notice thereof to be published in a news- paper, as provided in section four thousand and forty-five, for four successive weeks, or in such other manner as the court may direct. The first publication, if any, shall be within ten days after making the order. The commissioners shall have power to adjourn to any other time or place as circumstances may require. They shall be sworn to a faithful discharge of their duty, and any one of them shall have power to administer oaths to parties and witnesses in matters on trial before them. If any commissioner shall at any time die, re- move out of the State, refuse, or become in any way incapacitated APPENDIX OP SELECTED STATUTES. 715 to perform his duties as such, the court may appoint another in his place. § 3844. Every person having a claim against a deceased person, proper to be allowed by the court or commissioners, who shall not, after notice given as required by section three thousand eight hundred and thirty-nine, exhibit his claim to the court or commissioners within the time limited for that purpose, shall be forever barred from re- covering such demand, or from setting off the same in any action whatever. Preferred Debts. § 3852. If, after the amount of the claims against any estate shall have been ascertained by the court or com- missioners, it shall appear that the executor or administrator has in his possession sufficient to pay all the debts, he shall pay the same in full within the time limited for that purpose. If the assets received by the executor or administrator, and which can be appropriated to the payment of debts, shall not be sufficient, he shall, after paying necessary expenses of administration, pay the debts against the estate in the following order : — 1. The necessary funeral expenses. 2. The expenses of the last sickness. 3. Debts having a preference under the laws of the United States. 4. Debts due to other creditors. If there shall not be assets enough to pay all the debts of any one class, each creditor shall be paid a dividend in proportion to his claim ; and no creditor of any one class shall receive any payment until all of those of the preceding class shall be fully paid. Sale of Real Estate to pay Debts. § 3874. When the personal estate of any deceased person, in the hands of his executor or admin- istrator, shall be insufficient to pay all his debts, with charges of ad- ministration, his executor or administrator may mortgage, lease, or sell his real estate (except the homestead) for that purpose, on ob- taining a license therefor and proceeding therein in the manner provided in this chapter. ■Widow's Allowance. § 3935, 1 and 2. When any person shall die possessed of any personal estate, or of any right or interest therein, not lawfully disposed of by his last will, the same shall be applied and distributed as follows : — 1. The widow, if any, shall be allowed all her articles of apparel and ornaments, and all the wearing apparel and ornaments of the de- ceased, the household furniture of the deceased, not exceeding in value two hundred and fifty dollars, and other personal property to be 716 APPENDIX OP SELECTED STATUTES. selected by her, not exceeding in value two hundred dollars. This allowance shall be made when the widow waives the provision made for her in the will of her husband, or when none is made for her, as well as when he dies intestate. 2. The widow and minor children, or either, constituting the family of the deceased testator or intestate, shall have such reasonable allow- ance out of the personal estate, or the income of the real estate of the deceased, as the county court shall judge necessary for their mainten- ance during the progress of the settlement of the estate, but never for a longer period than until their shares shall be assigned to them, and in case of an insolvent estate, not longer than one year after granting letters testamentary or of administration. INDEX. A. ABATEMENT OF LEGACY, Section debts and specific legacies payable before general legacies . . 489 general legacies abate equally 489 order of. abatement may be changed by testator 489 by clear expression of intention 489 legacy for valuable consideration has pj-iority over others . 409 as when in satisfaction of dower or curtesy 489 but not when founded only on relationship . .... 489 though sometimes so held of legacy for support of near relation 489 when he is otherwise unprovided for . 489 specific legacies abate equally 489 ABATEMENT OF SUIT, by death of parties 361-371, 637, 640, 647, 648 (See Survival of Action.) ABSENCE, administration during ... OQi ACCEPTANCE, of office of executor or administrator 194^200 by acts in pais . " 19f) by taking possession of estate 199 by administering it . . 199 ACCIDENT, action for killing by, is assets, where, and when .... 66, 368 how valued in fixing penalty of bond 278 (See Bonds.) did not exist at common law 368 action for injuring by, rules as to 369 (See Negligengb.) such action given in one State, when enforced in another . . 370 ACCOUNT, bill for, in equity 550 (See Equity.) in probate court. (See Assets; Debts; Distribution; Legacy.) 718 INDEX. AC C OUN T — continued. Section basis of accounting 531 time of accounting 532 to be verified by oath 532 right to demand, cannot be destroyed 532 no obligation when bond to pay debts and legacies . . 267, 532 inventory and appraisal form basis of account . . . 531, 533-535 appraisal value, effect of 533 effect of gain or loss in value 533 bad debts not charged against executor 534 unless upon proof of possibility of collection 534 debts of executor or administrator, how accounted for . . . 534 (See Debtor.) inventoried property must be accounted for 535 property not inventoried also to be accounted for .... 535 real estate, how accounted for 535 allowances in account 537 of debts, legacies, and distributive shares 537 of funeral expenses 538 (See Funeral Expenses ) of costs of administration 539, 540, 541 (See Administration, Costs of.) of debts paid 542 of interest on debts 542 (See Interest.) of debts barred by statute 543, 670 (See Limitations, Statute or.) of money advanced by executors . 544 of commissions and compensations 545 (See Commissions.) of continued business, effect of 533 failure to render, breach of bond 547 but may be waived or cured 547 (See Bond.) and also, may forfeit commissions 547 and is ground for removal 296, 547 and executor or administrator may be fined 547 or may be committed for contempt of court 547 or the account be stated from papers filed 547 hearing on presentation of 548 must be preceded by notice 548 only those interested can take part 548 or appeal from decision 548 interests of minors and persons unborn, how protected . . 548 allowance, effect of 549 difference between intermediate and final accounts .... 549 statutes in different States . 549 items once passed upon, not re-examined 549 INDEX, 719 ACCOUNT — continued. Section may be pleaded in action for debt, when 404 accounting in equity, basis of the jurisdiction 550 as to accounting for assets in various States 532, 563 (See Ancillary Administration; Conflict of Laws.) effect of accounts in ancillary administration 579 books of, when admissible in evidence 749 ACTION, SURVIVAL OF. (See Survival of Action.) accruing after death of deceased belongs to estate 872 ADMINISTRATION. (See Administrator; Executor) origin of 1 granted in county of residence of deceased 38-42 within what time 49-53 how far dependent on amount of property 54, 55-58 title to the property need be only prima facie 56 on estate of non-resident, in what county 59-70 in county where property is . . 59 or real estate which may be sold for debts 59 value not essential to grant 60 decree granting, conclusive as to property 61-63 simple contract debts, property where 64 . choses in action, property where 65, 66 insurance policy, assets where 65 action for negligence, assets where 66 real estate, assets where 67 prima facie title supports grant 69 as to who are competent to be executors or administrators, see Competency. right to, who may claim .... 117-193, 205, 218, 219, 229, 233 early English statutes 117 goes to person entitled to personal property, when . . . 118 but generally subject to statutory provision ... . . 119 and these govern the appointment 119 but the rule is different as to administrator, cum testamento annexo 119 and in cases of administration pendente lite 119 husband's right to administer his wife's estate 120-182 derived from statute 120 is recognized in England and many of the United States . . 120 is an absolute right and exclusive 120 no power in court to appoint another 120 or any jointly with him 120 but by statute in some States he shares the right with next of kin 121 husband's right founded on right to her estate 122 and completes his right to her property 122 720 INDES. ADMINISTRATrON — continued. Section which survives to him at common law 122 and he may reduce her choses in action 122 exception to this rule in Maryland, 122 only when there are no descendants 122 and after his death her representatives may administer . . 122 his right in that estate applies to her separate estate . . . 122 husband's right lost if the marriage is void 123 as in case of prioi' marriage, or disability of one of the par- ties 123 but right exists if marriage is only voidable 123 but lost if mai-riage is annulled 124 or it there is a divorce 124 but not if only a divorce a mensa et thoro 124 right not lost by mere misconduct of husband 125 except, by statute in England, by desertion 125 husband's right lost by insanity, and other disabilities . . 125 lost in England by wife's leaving her property aw:ay . . . 127 and may be in Massachusetts 127 effect of antenuptial settlement 128 effect of statutes as to married women's property .... 129 do not deprive husband of his right 129 if he is entitled by positive statute 129 right of husband's representatives as against wife's next of kin ISO generally yields to theirs 130, 131 but may be. superior 131 if they claim, the burden of proof of survivorship in husband is on them 132 widow's right to administer husband's estate 133 generally jointly with next of kin 133 if they are incompetent, widow's right is sole . ... 134 and in all oases in discretion of court ... .... 134 if she renounces, next of kin solely entitled 134 daughter's husband included in next of kin in Maine . . . 135 creditor preferred on estate of non-resident in Ohio .... 135 general rule in Delaware .... . , . .... 135 non-resident's estate, creditor preferred in Connecticut , . 135 widow's right with next of kin in New Hampshire . . . 185 widow's right exclusive in some States . 136 followed then by next of kin . ... 136 court will generally appoint widow alone when it has discre- tion in the matter . . 137 widow's right, how barred , . 138 effect of nuptial agreements 138 effect of disqualification .... 139 effect of misconduct, in discretion of court . . .... 139 effect of separation, or divorce , . 139 INDEX. 721 ADMINISTRATION — continued. Section right of widow by second marriage 140 widow's right not barred by poverty . • 140 efEect of loss of right to property 141 preference of residuary legatee 141 widow's right depends on validity of marriage . . . » . 142 barred by previous existent marriage 142 not affected by voidableness of marriage 142 but lost by dissolution or divorce 143 marriage proved, how 144 next of kin, right to administer ... . . 145-177, 229 depends on right of distribution 145, 146 sometimes shared with husband of deceased woman . . . 121 shared with widow 133, 134, 135, 136 prior to creditor's right 178, 182 equal with devisee's, when 206 is governed by statute 146, 147, 159 exceptional case of administrator cum testamento annexo 148, 149, 205 governed by statute 149, 206 right to claim settled, at what time 150 by law of what place 151 who are next of kin 135, 152-164 (See Consanguinity; Next op Kin.) grant among a class in same degree 165 sole administrator preferred to joint 166 grant governed by choice of next of kin 167 or will be to one interested personally in the estate .... 168 other rules affecting this decision 169, 175, 176, 177 children preferred to parents 169 male to female 170, 171 resident to non-resident 172 unmarried rather than married 173 elder to younger son 173 whole blood to half blood 174 solvent to insolvent 175 creditor's right to administer 178-189 subordinate to next of kin 178, 182 and accrues only after citation 178, 184 as to preference to. widow 135 as to public administrator 178, 180 right governed by statute ... 180 arises after a limited time 181, 182 principal creditor favored 183 jvho is a creditor 185 (See Creditor.) rights when creditors refuse administration 188 right of nomination of administrator 190-193 46 722 INDEX. ADMINISTRATION — continued. Section (See Nomination.) sale of right to administer, when valid 193 bond always required of administrator 260 (See Administration; Bonds.) special administration 201 administration cum testamento annexo 202-210 when it is granted 202, 203 when executor refuses the oflSee 202 or dies before taking grant 202 or is incapable 202 or neglects to qualify 203 or none is named 202 or dies, resigns, or is removed before fully administering the estate 204 to whom granted 119, 148, 149, 205 to residuary legatee, when 205, 207 to next of kin, when 205 regulated by statute 206 granted as if deceased was intestate, when 206 devisees rank with creditors, when 206 rules in various States 206, 207 regulated strictly by statute 207 bond necessary in such cases 208 {See Bond.) when executor may be 209 duties of office 210 administration de bonis non administratis 211-217 when it is granted 211 when executor or administrator dies, resigns, or is removed before fully administering 211 as to executor of executor 212 to whom granted 148, 149, 213 in what county 214 within what time 50, 214 after citation 215 depends on vacancy in office of administrator 216 and on assets remaining to be administered 57, 216 but assets need be only proved prima facie 216 granted although all debts are paid 216 and only distribution remains to be done 216 claim of the estate is sufficient assets 216 but not property which does not prima facie belong to the estate 216 may be granted after distribution, if valid debt exists . . . 216 but not to enforce a legacy . . 216 as to debts barred by the statute 216 may not be granted to fulfil power of sale by will . . . , 217 INDEX. 723 ADMINISTRATION — continued. Section as to grant when money only is to be divided 217 bond required from 266 penalty limited to estate uuadministered 277 administration dm-iiig minority 73, 218-220 nature of the office 218 granted when sole executor is under age 218 not if there are others of full age 218 to whom granted 219 to guardian of infant executor 219 or in discretion of court 219 terminates with arrival at age, of executor . . .... 220 administrator pendente lite 221-229 nature of the office 221 duties of the office 222 care of the estate 222 makes allowance to widow 222 termination of the estate 223 not liable to creditors of estate 223 effect on statute of limitations 223 as to power to bring certain suits 224 is revoked by grant of full letters 225 cannot be granted after probate of will 226 only when there is no other administrator 226 and when there is a contest 227 mere delay in taking letters not enough 227 indifferent person selected for 119, 229 when a litigant may be chosen 229 when one nominated as executor 229 when next of kin . 229 public administrator . 230-233 nature of the office of .... 230 duties of the office 231 only arises in default of relatives 231,232 yields to right of husband, widow, or next of kin . . 187, 232 is preferred to creditors, when 178, 180, 187 ceases on probate of will or grant of letters 232 requires a bond 233 effect of, on statute of limitation 233 powers of the office 233 include collection and preservation of estate 233 and keeping estate till claimed by heirs 233 or paid to public treasury 233 to whom granted 187, 233 administration of undevised estate such estate generally goes to executor 234 but as intestate estate 234 but sometimes is specially administered 234 724 INDEX. ADMINISTRATION — continued. Section administrator ad litem, nature of this office 235 administration of consuls 1^9, 235 administration waived 236, 237 as to estate of limited value 236 as to agreement among heirs 236, 237 as to married woman's estate in Maryland 235 as to estate going to widow or children 236 as to waiver by agreement 237 executor de son tort 238-249 (See Executor.) costs of administration 895, 539 are preferred debts 395 counsel fees, in administration suits 539 reasonable expenses, allowed in account . 540 brokerage commissions allowed 540 travelling expenses, when allowed 540 as to care of real estate ... 541 taxes on real estate 541 repairs on real estate 541 grant of full letters, effect of, on administration pendente Ike . 225 on public administration 232 ancillary administration 562-580 (See Ancillary Administration.) ADMINISTRATOR. (See Administration.) who may be 71-104 (See CoMPKTENOr.) infants cannot be 73, 74, 126 unmarried woman may be 75 married woman, how far competent 76-82 consent of husband necessary at common law 76 and he became joint administrator 76 effect of marriage upon administratrix 81, 82 convicts, when competent 83, 84 idiots and lunatics incompetent 85, 86 as to effect of inability to read or write 87 habits of drunkenness or improvidence disqualify . . 88, 89, 90 (See Improvidence.) poverty and insolvency, effect of 91 insolvency disqualifies . 91 mere poverty does not 91 nor lack of settled business 91 non-residents and aliens may not be, when 92-98 must appoint agents resident 97 corporations may be, when 98, 99 religious belief, how; far a disqualification 100 surviving partner, as executor 101 INDEX, 725 ADMINISTRATOK — continued. Section absolute and discretionary incompetency 103, 104 who may claim the right of being 117-193 early English statutes as to 117 {See Administration.) administrator cum testamento annexo, see Administkation. administrator de bonis non administratis, see Administration. administrator pendente lite, see Administration. administrator durante minoritate, see Administration. joint, bond of 275 {See Administration ; Bonds ; Joint Executors and Ad- ministrators.) death of, effect of 291 {See Death.) does not devolve office on his executor or administrator . . 291 powers of, before appointment 614, 617 not such as belong to executor 617 {See Executor.) but acts may be confirmed after appointment 617 (See Executor de son Tort.) as to selling or giving title to assets 617 as to suits for property taken from his possession .... 618 as to making demand on promissory note 680 {See Promissory Note.) as to giving notice of injury to towii 630 as to promise to pay debt Of deceased, under statute of franids 662 sole preferred to joint 137, 166 appointed in one State may appear in probate proceedings in another 562 misconduct of, as afecting compensation ...... 546, 547 debt due to, how paid 420 debt due by, extinguished 361, 485, 534, 628, 634 deed by, of land sold by deceased 477 as to termination of the office, see Death; Removal ; KeS' ignation; Revocation. ADMISSIONS, of deceased bind executor or administrator 750 of executor or administrator, effect of 750 ADOPTED CHILD 164 {See Next op Kin.) right of, as distributee . 522 depends on statute 522 statutes in various States 522 when " child " includes adopted child in will 522 effect of second adoption 522 effect of adoption in another State 522 effect of such adoption on bequest 522 726 INDEX. ADVANCEMENT, Section made to children, is reckoned part of distributive share . . . 523 statutes as to 526 of monej', by executor or administrator 544 how reimbursed 544 AGENT of non-resident administrator necessary 97 AGRICULTURAL FIXTURES, rule as to 354 (See Fixtures.) ALIEN. (See Non-Kesidents.) may be executor or administrator, when 92-97 (See Administrator ; Competency ; Executor.) probate of will of 556-558 (See Conflict of Laws; Wills.) administration of estate of ... . 59-70, 151, 370, 527, 551-580 (See Administration ; Conflict op Laws ; Distribution.) ALLOWANCES. (See Accounts.) in probate accounts 537 of debts, legacies, and distributive shares ........ 537 of funeral expenses 537 (See Funeral Expenses.) of costs of administration 539-541 (See Administration.) of debts paid 542 of interest on such debts 542 (See Interest.) of debts barred by statute of limitations 543 (See Limitations, Statute of.) of money advanced by executor or administrator 544 for ordinary purposes of administration 544 of commissions 545, 546 (See Commissions.) to widows and children 222, 377-382 (See Widows.) ANCILLARY ADMINISTRATION. (See Conflict of Laws. ) difference between, and principal 551, 562 principal is that at place of domioil 562 any other is ancillary, whether prior or later 562 or whether there is no principal . . 562 is independent of principal, and vice versa .... . 562, 591 administrator in one State may appear in proceedings in another 562 assets in each State separately administered ... ... 563 separately inventoried and accounted for ... ... 563 not liable to creditors out of State 563, 570 as to payment of debts out of State voluntarily 563 INDEX. 727 ANCILLARY ADMINISTRATION — conimued. Section locality of assets 64-70, 563, 573 (iSee Assets.) grant of, on production of principal letters 564 right of suit out of State 565, 573 none, unless ancillary appointment taken 565 but if suit brought defendant must plead his objection . . . 565 or it is waived 565 but by statute, foreign administrator may sue 566 suit in personal capacity may be brought in any State . . . 567 pendency of suit in another State, effect of 568 payment to foreign executor, how far valid 569 right of foreign administrators to sell or receive property . . 569 payment of debts, governed by law of forum 574 (See Debts ; Insolvent Estates.) of transmission of estate after payment of debts .... 576, 577 to principal administration 576, 577 after paying debts 576 statutes regulating this subject 576 distribution may be made in ancillary administration .... 577 or assets sent to principal administration 577 circumstances which render each course proper 577 statutes of ancillary State may govern distribution .... 578 accounts in various States, effect of, outside of State . . 532, 579 laws of other States must be proved as facts 580 ANIMALS, domestic, are assets of estate 344 go to executor or administrator 344 include horses, farm cattle, etc ■ 344 dogs are assets of the estate 344 ferce naturcB, are not generally assets 344 but if reclaimed are such . 344 as if tamed or confined while in possession 344 as to pigeons, deer, rabbits, partridges 344 as to deer in parks, or doves in dove-house 344 as to fish in pond, or oysters 344 as to property in these for a term of years 344 (See Assets-, Chattels.) ANIMUS REVERTENDI, as affecting domicil . . 39-42, 553 (See Domicil.) ANTENUPTIAL SETTLEMENT, effect on right of husband to administer 128 on right of widow to administer 138 on husband's right to wife's property 386 (See Husband and Wife.) 728 INDEX. APPEAL, Section to Supreme Court of probate 7 from decree of appointment of executor or administrator . . 292 can only be takeu by one interested in estate 548 {See Hearing ; Interest.) effect of, on "bond 289 APPLICATION, for appointment as administrator or executor, in what county 38-42, 43,59 (See Administration ; Countt.) form of petition and proceedings for 250-259 {See Appointment.) APPOINTMENT, of executor or administrator 250-259 proceedings for, in probate court 250 by petition, citation, and decree 250 as to allegations of petition 251 as to allegations of residence 251 form of petition 259 citation is requisite . 252 effect of Omissibn is to avoid letters 252 form is general 253, 259 and is served by publication 253 omitted by statute, -when .... 253 and in cases of equal claimants 253 and in case of non-residents, when 253 should contain notice of time and place of hearing .... 254 binds all to whom it is addressed .......... 254 may be waived by agreement 255 bearing is in probate court 256 evidence must be offered by petitioner 256 and he opens and closes 257 only persons interested are allowed to offer proof 257 such as husband, guardian of infant, attorney, or creditor . . 257 but objection comes too late in law court 257 decree, form of 259 effect of not giving valid bond upon 271-274 as to effect of death, revocation, resignation or removal of executor or administrator, see those titles appointment of executor in will 105-116 APPORTIONMENT, of rent 358 (See Rests.) APPRAISEMENT. (See Accounts; Inventory.) of estate generally contained in the inventory 312 is never conclusive as to value of property 320 is prima facie evidence of value 320 effect of, on accounts 533 INDEX. 729 AKBITRATION. (5ee Compromise.) Section power of, belongs to executor or administTatOT ,,.... 433 supplemented by statute 433 ■when it amounts to waste . 668 (See Waste.) ASSENT, of executor to legacy 490 (See Legacy.) ASSETS, locality of various kinds 64-70, 568, 573 judgments, assets where i . . . . 563 simple contract debts, where assets 64, 372, 373, 563 as to power of sale of real estate 67 as to insurance policy 65, 356, 573 (See Insurance.) as to action for negligent killing 66, 368, 370 (See Survival of Agtions.) choses in action, assets whera ,. i ..... > 65, 66, 563 as to deposit in bank 357 mortgage not, when paid 68 new, effect of on time limit of grant of letters 50 prima facie title to, enough for jurisdiction of probate court . . 69 what are sufficient for grant of administration de bonis non . . 216 general principle governing the, see Administration. assets of estate 328 includes personal estate 328 not real estate 328 except in certain instances by will 329 as when devised for payment of debts 329 estate of executor in such cases 329-331 (See Power of Sale.) real estate converted to personalty is assets 332, 333 (See Conversion.) effect of power of sale upon real estate as assets 334 land taken on execution is assets, when 335 land held by partnership is assets, when 336, 594 (See Real Estate.) as to chattels real, what are such 337 difference between chattel and freehold estates ..... 337 terms of years are chattel interests ......... 337 (See Chattels Real.) except when for long terms, by statute 338 mortgages are assets 839-342 and are personal property 339 rule established by statute 340 to. be accounted for by executor or admihistrator 340 730 INDEX. ASSETS — continued. Section and he may sell or distribute among those entitled to personal estate 340 {See MOBTGAGKS ) interest in remainders in chattels real goes to executors . . . 343 or by forfeiture of condition 343 personal property forms bulk of assets 344-389 (See Akimals ; Chattels ; Choses in Action ; Copyright ; Dividends ; Donatio Causa Mortis ; Emblements; Equitable Assets ; Fixtures ; Fraudulent Convey- ances ; Gift ; Heirlooms ; Husband and Wife ; In- surance ; Interest; Mortgages; Partnership; Patent; Pensions ; Promissory Note ; Property ; Rents ; Sav- ings Banks ; Survival of Actions ; Trade Secret ; Widow's Allowance.) actions accruing after death of deceased are assets 372 as for conversion of part of the estate .... ... 372 or on contracts made by executor or administrator .... 372 contracts of deceased are assets 64, 372, 373 although not broken till after death 373 so, conditions or forfeitures or rights of redemption . . . 373 new assets, effect of 415, 419 (See Insolvent Estates.) collection of, by legal process 421-423 must be carried on with diligence 423 power of executor to mortgage or pledge . , 452 (See Mortgage.) marshalling of 708-712 undevised estate charged before devised 454, 708-713 (Sec Marshalling Assets.) in various States, how administered . 563, 570 (See Ancillary Administration ; Conflict of Laws.) ASSIGNMENT, of distributive share 528 (See Distribution.) of mortgage , 448, 571 (See Mortgage.) of right to be executor 116 ATTACHMENT, of legacy in hands of executor 484, 498, 501, 683, 722 (See Legacy.) of distributive share 528 in hands of administrator . 528 effect of death of defendant upon ... . . . 651, 718 in suit against executor or administrator ........ 683 is against goods of deceased, when 683 INDEX. 731 ATTACHMENT — continued. Section effect of, upon execution after death of defendant 717 effect of change of ownership of goods 718 (See Trustee Process.) ATTAINDER, as ground of incompetency for office of executor or adminis- trator 83 A UTER VIE, estate pur, is chattel interest 337 and goes to executor 337 B. BANK, deposit in, in trust, when not assets 357 temporary deposit in, may be made by executor or administrator 442 BANKRUPT. {See Insolvency.) incompetent to be executor or administrator 91 {See Competency.) legatee, or distributee, payment to whom 501, 528 {See Distribution ; Legacy.) BASTARD. {See Illegitimacy.) kindred of 163 statutes as to heirs of . . . 163 {See Next of Kin.) as distributee . ... 521 no right as such except by statute 521 statutes as to, iu various States 521 {See Distribution.) BILL IN EQUITY, to settle partnership estate 598, 640 to compel an account ......... . . . . 550 brought by executor or administrator 640 of revivor by executor or administrator 640 of original bill by executor or administrator ...... 640 to enforce vendor's lien . 640 to set aside fraudulent conveyance 640 to get construction of will 640 brought against executor or administrator 702-714 on liabilities of the deceased 702 on liabilities incurred by executor 702 in suits for administration 703 creditors' bill for administration 704 proceedings in such suit 705 legatee's bill for legacy 706 for specific performance . 654 to set aside donatio causa mortis 619 BILL OF EXCHANGE. {See Promissory Note.) endorsement of by executor or administrator 448-450 732 INDEX. BILL OF EXCHANGE -T-coniinuerf. Section by foreign executor 449 before appointment 450 BONA NOTABILIA, effect of, oa jurisdiction 36, 37, 54 what amounts to 55 BONDS, ADMINISTRATION, of minor, ■when valid 74 rule as to, in England 260 not generally required of executor 260 but chancery may order 260 and always required of administrator 260 required generally irl United States of both executor and administrator 208, 233, 260, 261, 266 but in some States, English rule prevails > . 261 and executor need not give bond unless required by probate court 261, 262 non-resident executor must give bond 262 rule in New York 262 circumstances requiring such bond 262 rule in Pennsylvania as to non-resident executor 263 rule in Virginia 263 bond sometimes required by testator, in will 264 should then be to legatees 264 bond required by court in course of administration . . . 265, 301 (See Removal.) administrator de bonis non always required to give 266 bond to pay debts and legacies 267 may be given by executor who is residuary legatee .... 267 exempts him from inventoi-y and account .... 267, 314, 532 Massachusetts statute as to 267 does not discharge lien for debts on real estate . . . 267 creates absolute liability on executor 268, 269 vests real estate in devisees 268 free from general legacies 269 but subject to specific legacies 269 effect of, on special statute of limitations 269 effect of, on estate in hands of successor 269 effect of, on sale of land for debts ... 4@6 liability upon such bond is conclusive admission of assets 677 and renders executor personally liable 677 query, whether the liability is larger than penalty of bond . 677 bond runs to probate judge 270, 280 condition of, is what 270 effect of not giving bond, on appointment 271, 295 effect of irregular or defective bond> on appointment . 272, 273, 274 INDEX. 733 BONDS, ADMINISTRATION ^conft"n«e(f. Section effect of such bond on statute of limitations 274 of joint executors or administrators . . . 275, 284, 588, 724, 732 may be separate 275 effect of such separation 275 (See Joint Executors.) penalty of bond 276 is based on value of estate 276, 724 does not include estate fraudulently conveyed 277 may be decreased by deposit of property in court .... 277 of administrator de bonis non is based on property remaining unadministered 277 as to valuing claims for killing of deceased 278 includes real estate, when 279, 469, 724 supplementary bond to cover real estate 279, 469 (See Heal Estate,) sureties on 281 must be approved by probate judge 281, 284 not bound unless bond is signed by administrator or executor 281 but bound although executed by them while the penal sum is left blank 281 exemption from, may be made by request 282, 283 Massachusetts statute as to 282 must be after notice to creditors 282 notice may be by publication 283 lack of notice invalidates bond 283 court may require sureties even against such request . . . 283 qualifications of sureties 284 generally residents of State 284 satisfactory to judge of probate 284 when must be freeholders 284 corporations may be by statute 285 must be empowered by legislature 285 liability of 733 as to debt barred by statute of limitations 733 as to collusive judgment against executor ....... 733 as to breaches after discharge 733 new bond or sureties may be required, when 286 counter security from executor or administrator 287 discharge and substitution of sureties 288 effect of on executor or administrator 288 liability of discharged surety 288 effect of discharge of one of two sureties 288 appeal, effect of, on bond 289 marriage of executrix, effect of, on sureties 290 breach of, what is neglect to file inventory 296, 313, 321 (See ■ Inventory ; Waste.) 734 INDEX. BONDS, ADMINISTRATION — coniinued. Section maladministration of rents 731 neglect or refusal to account 296, 547 (See Account.) not carrying out directions of will 296, 725 neglect to pay judgment on debt barred by special statute of limitations . 731 failing to pay distributive share 731 maladministration of any kind 731 refunding bond may be taken from legatee 479 when legacy is paid before estate is settled 479 when legacy is to life tenant 500 (See Legacy.) when may be taken from distributee 524 to secure against unknown debts 524 or when early payment of distributive share is made . . . 524 suits on 726-734 nature of the security given by probate bond 726 form of suits on 727 suits by leave of probate court 728, 730 suits without leave of probate court 728 by creditors or distributees 728 after decree of court . 728 by legatees 728 judgment, as estoppel, binding sureties ... .... 729 suits by leave of court, order for ... 730 limited only by twenty years . . 734 interest of plaintiff may be contested 730 judgment in, for what amount , . . . . 730 execution awarded on hearing in equity . . ..... 730 BROKERAGE COMMISSIONS, when allowed in probate account 540 BROTHERS AND SISTERS, distribution among 516 statutes relating to 516 BURDEN OF PROOF, of survivorship 132 BUSINESS, continued after death of intestate or testator 533 effect of, on accounts ... 533 in partnership affairs 606-610 (See Partnership Estate.) CANON LAW, as affecting consanguinity . . . 152, 155-159 INDEX. 735 CARRIER, Section action by executor of, for conversion of goods 364 proceeds are to be paid to owner of goods 364 CHATTELS PERSONAL, animate, are assets 344 may be domestic animals 344 or those ferce naturae, under certain circumstances .... 344 as if reclaimed or imprisoned 344 (See Animals.) or chattels vegetable, as trees, grass, etc 345 ordinary personal property 350 goes to executor or administrator 350 only such as has not been sold by deceased 350 CHATTELS REAL, what are 337 include estates for years 337 or any definite time 337 but not for an indefinite time 337 as for life, etc 337 go to executor or administrator 337 long leases are freeholds by statute, where 338 and go to heir 338 interests in chattels real by remainder go to executor .... 343 CHILDREN, rights of, as distributees 514 are subordinate to husband and wife 514 take generally with issue of deceased children 514 when the term includes adopted children, in wiU 522 (See Adopted Child.) as to posthumous children 523 (See Posthumous Children.) preferred to parents as administrators, when 169 interest on legacy to, when it begins 504 (See Interest.) as to illegitimate 163, 521 (See Illegitimacy.) CHOSES IN ACTION, are assets, where 65, 66, 372, 373, 563 (See Assets.) should be included in inventory 318 (5ee Inventory.) comprise stocks, bonds, etc 355 go to executor or administrator. 355 so of policies of insurance 356 (See Insurance.) transfer of, by executor or administrator 446 purchaser may sue in his own name 446 736 INDEX. CHOSE S IN ACTION— continued. Section defences same as if brought by executor 446 liability for cost? 446 as to statute of limitations 446 husband's right to wife's 122, 123, 383-388, 484, 4j98, 499, 509-511 {See Husband and Wife.) CITATION. {See Notice.) in probate proceedings necessary, when 252 omission of, avoids letters 252 form is general . . . . , 253 and is served by publication 253 omitted by statute, when 253 and in cases of equal claimants 253 and in case of non-residents 253 should contain notice of time and place of hearing 254 binds all to whom it is addressed 254 may be waived by agreement 255 {See Probati: Court.) to next of kin, and persons interested ia estate on proceedings for appointment of executor or administra- tor .. . 252-254, 259 {See Appointment.) on proceedings fpr account 548 {See Account.) to next of kin, before creditor is appointed adnjinistrator 178, 184 before grant of administration de bonis non 215 CIVIL LAW, as affecting consanguinity 152, 155-159 CLAIM, against insolvent estate, proof of payment of 408-412 CO-EXECUTORS OR CO-ADMINISTRATORS, nature of their title to estate 581 different from joint-tenants, how 581 all considered one person 581 posses-sion among 581, 583, 584 no partition between 581 grant by one, effect of 581 release by one to the other void . . . ■ 581 survivorship between 115, 582 suits by, all should join 583, 636 except on contracts with one 583, 636 acts of one, how far va,lid 585 may sell or assign property 585 release debt due to estate 585 settle account 585 compromise claim 585 assign or release mortgage 586 INDEX. 737 CO-EXECUTORS OR CO- ADMINISTRATORS— con^muerf. Sectiou cannot bind co-executor by contract 586 nor endorse note payable to both 631 may execute power of sale, when 587 as to surviving executor 115, 587 liability of one for acts of another 588, 589 limited by separate bonds 275, 588 (See Bond.) efEect of death or removal of one 588 effect of joint receipt 590 as to administrators in different States 591 suits between 5^2 none possible at law 592 abatement of, when they become parties 592 disputes between, settled in probate court 692 pleas by 686 commissions, how divided among 546 (See Joint Administration.) COLLATERAL CONSANGUINITY 152, 153 (See Consanguinity.) COLLECTION OF ESTATE . 421-432 COMMISSIONS, of executor or administrator as compensation, none in England 543 statutory allowance in United States 545 sometimes a reasonable sum 545 sometimes a fixed amount 545 statutes in various States ... 545 if given by will, supersedes statute , . , 546 unless allowed both by statute 546 misconduct may forfeit right to ........ 546, 547 division of, among several executors 546 COMPENSATION, of executors and administrators 545, 546 (See Commissions.) COMPETENCY. (See Administration; Administrator; Ex- ecutor.) of persons to be executors or administrators 71-104 as to infancy 73, 74, 126 as to unmarried women 75 as to coverture of women 76-82 as to convicts of infamous crimes 83 as to mental incapacity 85, 86 as to inability to read and write 87 as to drunkenness and improvidence . 88-90 as to poverty and insolvency 91 as to alienage .... ... . 92-97 47 738 INDEX. COMPETENCY— conJin«e(f. Section as to corporations 98, 99 as to religious belief 100 as to surviving partners 101 absolute and discretionary 103, 104 (See Administkatok ; Executor; Removal.) COMPROMISE, of doubtful claims by executors or administrators 433 statutes as to 434 of future interests 435 settlement of conflicting claims 435 or contingent or future interests 435 (See Akbitration.) CONCEALMENT OF ASSETS, process to prevent ... .... 421, 422 CONCLUSIVENESS OF DECREE OF PROBATE COURT. (See Decree; Estoppel.) CONDITION, estate by, forfeiture of, when goes to executor 343 CONFLICT OF LAWS, as to ancillary administration 551 as to validity of foreign -wills . 552 rules as to domicil 553 effect of change of domicil 554 of foreign wills of real estate . 555 statutes as to foreign wills , 556 statutes as to foreign probate 557 effect of foreign probate 558 interpretation of wills 559 of intestacy in various States 560 of administration in several States 561 principal and ancillary administration ........ 562 division of assets in various States . . . 563 grant of ancillary administration , ... 564 right to sue in other States . . 565 statutes as to such right 566 suits by executor or administrator in his own right , . . . 567 pendency of suits in two States, effect of . . . .... 568 payments to and receipts by foreign administrators .... 569 liability for assets brought into foreign States . . . 570 power to endorse notes or assign mortgages .... . . 571 actions for negligent killing 370, 572 statute of limitations in different States, effect of 572 in what Stjite suit is to be brought . . 573 payment of debts governed by law of place of administration . 574 insolvency, fact of, how determined 575 statutes regulating payment of debts ...... . 576 INDEX. 789 CONFLICT OP LAWS — continued. Section distribution governed by what law 577, 578 eSect of probate accounts in several States 532, 579 foreign laws to be proved as facts 580 law of what place determines next of kin who is to administer . 151 (See Ancillary ADMiNrsTRATioN ; Foreign Administra- tion; Wills.) CONSAN&UINITY, rules of 152-162 (See Next of Kin.) what is kinship 152 lineal consanguinity 152 collateral consanguinity , 152, 153 degrees of, by civil, canon, and common law .... 152, 155-159 paternal and maternal 160 half and whole blood 161 ascending and descending line 162 CONSTRUCTIVE APPOINTMENT, of executor in will 106-108 CONSULAR ADMINISTRATION , . . '. . . . 189,235 CONTINGENT DEBTS, not payable before legacies 487 how paid when estate is insolvent 412 interests, eompromises aSecting 435 CONTRACT, is assets, where 64, 372, 373, 563 (5ee Assets.) action of, survives 361 (See . Survival of Actions.) for purchase or sale of land, specific performance of ... . 654 of executor or administrator, bind him and not the estate . 656-660 CONVERSION, is equitable doctrine 332 arises in cases of sale of land by testator or intestate .... 832 by it land sold is considered personal estate of vendor .... 333 and the purchase-money is personalty 333 and as to vendee's estate the purchase-money is real estate . . 333 and the interest in the land is real estate . . .... 333 by will, when it arises .... .... .... 334 CONVICTS, of infamous crimes, how far competent as executors or admin- istrators 83, 84, 126, 297 (See Competency; Removal.) COPYRIGHT, is assets, and goes to executor or administrator 357 (See Patent.) 740 INDEX. CORPORATIONS, Section when may be executors or administrators 98, 99 (See Administrator; Competency; Executor.) debt due by, is assets, where 64 (See Assets.) when may be sureties on probate bonds 285 (See Bonds.) stock of, right of foreign administrator to sell 569 (See Foreign Administrator.) COSTS, of administration, are preferred debts 395 include counsel fees in suits 539 and reasonable expenses of suit 540 brokerage commissions 540 travelling expenses 540 care of real estate 541 taxes on real estate 541 repairs on real estate 541 of suits by an executor, in England, if successful, he gets costs 743 if unsuccessful, he loses 743 statute regulation of, in the United States 744-747 of suits against an executor, if successful, he gets costs 743 if unsuccessful, he loses 743 statutes regulating, in the United States 744-747 in equity, costs are generally in the discretion of the court . . 743, 745 but unless other facts change this rule, the court will make unsuccessful party pay 743 in general administration suits costs out of estate .... 743 misconduct of executor or administrator as affecting . 743 COUNSEL FEES, allowed in probate accounts 539 only when reasonable 539 (See Accounts; Costs op Administration.) COUNTER SECURITY, given by executor or administrator 287 (See Bonds.) COUNTY, of residence of deceased is place for appointment of adminis- trator 38-48 in which property is, in case of non-resident 59-70 division of, effect upon jurisdiction 43 when property in more than one, where jurisdiction .... 70 (See Administrator.) in which administration de bonis non is granted 214 INDEX. 741 COVENANT, Section in deed of land sold to pay debts, binds executor 470 of deceased, liability of executor or administrator upon 652, 653 COVERTURE, how far a disability for office of executor or administrator . 76-82 {See Husband and Wife; Woman, Married.) CREDITOR, right of, to administer 178-189 (See Administration.) who is 185 claimant for funeral expenses is 185 appointment of, valid against administrator 186 effect of notice to exhibit claims upon 325, 326 (See Notice.) secured, can only prove in insolvency for unsecured surplus . , 417 (See Insolvent Estates.) appointment of, as executor, effect of 420, 486, 634 (See Debtor.) right to pursue assets out of State 56-3 (See Ancillary Administration.) of partnership, proceedings by, to collect debts 600 (See Partnership Estate.) proceedings by, in equity for debt 708-705 (See Equity.) suit by, on probate bond 728 no right of action against administrator pendente lite .... 223 CRIMINALS, how far competent as executors or administrators ...... 83 (See Competency.) CURTESY, tenant by, executor of, when entitled to emblements .... 349 D. DEATH, of executor or administrator 291 (See also Removal; Resignation; Revocation.) of executor testate, devolved office on his executor . . 114, 212, 291 but this is changed by statute in United States 291 death of executor intestate leaves office vacant 291 and so, death of administrator 291 and in such cases, administrator de bonis non must be appointed 291 of distributee afEects payment of distributive share, how . . 528 DEBTOR, appointment of, as executor 361, 485, 534, 628, 634 extinguishes debt . 361, 485, 534, 628, 634 charges him with debt 485, 534, 628 742 INDEX. DEBTOR — continued. Section he must account for it 485, 534, 628 his sureties are liable for it 485 as to partnership debt 485 when debt not extinguished 485, 628 not when debtor is administrator 485 as to mortgage, when mortgagor is appointed executor . . . 628 legacy to, effect of, on debt 482 DEBTS, bond to pay, and legacies 267-269, 466, 677 (See Administration; Bonds.) classified as sperate and desperate 318, 534 presumption of collectibility of former 318, 534 and uncollectibility of latter 318, 534 presumption may be rebutted by evidence 318, 534 (See Inventory.) of executor or administrator to estate, extinguished by appoint- ment 361 (See Debtor.) due by estate, order of payment of 390-398, 402 (See Costs of Administration; Funeral Expenses; Judg- ments; Taxes.) preferred, what are funeral expenses, and cost of last illness 391-394 costs of administration 395 including counsel fees, when 539 and reasonable expenses 540 debts due to United States or State 396 ; judgment and record debts, when are 397 servants' wages, when are 398 rent, when is 399 ' interest on such debts is also preferred 400 as to liens, mortgages 401 judgment liens not affected by rules of priority 401 specialty debts by bond, etc., when preferred 401 only valid debts are to be paid 402, 645 how paid out of assets 402 amounts paid are allowed in accounts 537, 542, 543 liability of executor or administrator for payment in order . . 403 as between preferred and ordinary debt 403 if preferred, exhaust the assets, no liability for common . . 404 and account settled may be pleaded ......... 404 time for payment of debts, not before a certain time .... 405 effect of payment of debts notified within that time .... 406 recovering back part of debt so paid 407 (See Insolvent Estates.) due to executor or administrator, might be retained by him at common law 420 INDEX. 743 DEBTS — continued. Section in preference to all other debts of equal degree 420 but not generally in United States 420 presumption of satisfaction by legacy 480 (See Legacy.) set-off against legacy 483 (iSee Legacy.) extinguished by appointing debtor executor . . 485, 534, 628, 634 (See Debtor.) interest on, is allowed in probate accounts 542 not when debt should be paid earlier 542 (See Accounts; Interest.) payment of debts barred by statute of limitations . . . 543, 670 may be allowed in probate accounts 543, 670 but not if barred by special statute 543 when it is waste . 667 (See Limitations, Statute of.) governed by law of place of administration 574 in cases of insolvency, as well as in solvent estates .... 574 if estate is in several States, statutes regulate payment . . 576 (See Ancillary Administration.) abatement of legacies to pay debts 489 general legacies abate before specific 489 both abate till debts are paid 489 (See Abatement; Legacy.) as assets sufficient to support grant of administration .... 216 when barred by statute of limitations 216 due to estate in foreign State, payment of 569 (See Ancillary Administration.) as to cases where the estate is insolvent, see Insolvent Estates. DECEIT, action for, does not .survive 366 (See Survival of Actions.) DECREE, of probate court, conclusiveness of 11, 12, 13-17, 61-63, 549, 558 as to jurisdictional facts 13 as to residence of deceased 13, 44-48 in collateral actions 13-32, 44-48 conclusive, if subject-matter in its jurisdiction 14 certiorari nor writ of error lies against its decrees .... 21 conclusive as to order of sale of land, when . . .16, 17, 18, 24 presumed to be regular 28 void when without jurisdiction 13-27, 53 voidable for irregularity 29, 30 effect of, in other States 32 (See Ancillary Administration; Conflict of Laws,) as to wills of real estate 33, 34, 558 744 INDEX. DE CREE — continued. Section of probate of foreign wills 558 of foreign appointment as administrator 564 DEED, by executor or administrator of land sold by deceased .... 477 power to execute given by statute 477 by license of probate court 477 title passes by deed, not by order of court 477 license granted only when contract is binding 477 not when it is not enforceable, as bad under statute of frauds 477 of deceased, cannot be delivered by executor 477 DEER, property in, as assets 344 (jSee Animals; Assets.) DELEGATION, of appointment of executor in will 109 DESCENDANTS. (See Consanguinity; Next op Kin) DETINUE, action of survivor 362 (See Survival of Actions.) DEVISEE, right of, to be administrator cum testamento annexo 206 DISHONESTY, disqualifies for office of administrator, when 90 (See Competency; Improvidence.) DISTRIBUTION, of intestate estate to next of kin 508-530 statute as to, in Massachusetts 508 next of kin, how computed 146-177,508 (See Consanguinity; Next op Kin.) husband's share in wife's estate 509, 510 (See Husband and Wipe.) widow's estate in husband's estate 511 (See Husband and Wife.) representation, right of 512, 518 (See Representation, Right of.) right of next of kin to distribution . .... 513-518 (See Children; Brothers and Sisters; Next of Kin; Parents.) right of half blood 519 (See Half Blood.) right of paternal and maternal kindred 520 (See Maternal Kindred; Paternal Kindred.) right of illegitimate children 521 (See Bastard ; Illegitimacy.) right of adopted children ... ........ 522 (See Adopted Child.) INDEX. 745 DISTRIBUTION — continued. Section right of posthumous children 523 (See Posthumous Child.) time of distribution 524 generally not before one year from death 524 when it may be ordered previously 524 effect of decree of distribution in settling time .... 524 as to requiring refunding bond 524 partial distribution may be ordered 524 set-off of debts 525 (See Set-off.) advancement, effect of, on distributive share 526 (See Advancement.) nature of right to distributive share 527 vests on death of intestate 527 in cases of partial as well as total intestacy 527 law of domicil governs distribution 527 to whom share is payable 528 to grantee of distributee 528 to assignee in bankruptcy . . 528 • to attaching creditor 528 (See Attachment.) to administrator of distributee 528 to wife's administrator 528 (See Legacy.) actions for distributive shares 218, 529, 680, 728 after decree of distribution 529, 680 upon probate bond 680 investment before distribution 530 of foreign intestate estates 560 governed by law of residence of intestate 560 as to persons entitled to personal property 560 unless changed by statute 578 but as to real estate, by law where land is 560 question of intestacy governed by law of residence as to per- sonalty 560 by law where land is, as to realty 560 (See Ancillary Administration.) distributed, where 576, 577 failure to distribute according to decree of court is breach of bond 731 suit to enforce, on bond 728 to creditors, of insolvent estate 409 DIVIDENDS, are assets, when 359 (See Assets.) DIVORCE, effect on husband's right to administer 124 on widow's right to administer 139, 143 746 INDEX. DOGS, Section as to property in 344 when are assets of estate 344 (See Animals.) DOMICIL, of deceased affects jurisdiction of probate court 38-48 decides county of appointment of administrator or executor . 38-40 must be an actual domicil 39,553 is presumed to be in place of birth 553 is a question of fact 39 change of, needs actual change in intention 39, 553 mere change without intention, not enough 553 change of, by non compos 40 winter and summer residence, effect upon 40 of married women 41 once acquired presumed to continue 42, 553 as to, when county is divided 43 effect of decree settling domicil 44-48 governs the right to claim administration 151 governs the validity of foreign will 552, 553; 554, 559 (See Wills, Foreign.) of residence at death governs, not at date of will 554 decides which is principal and which ancillary administration . 562 governs distribution of intestate estate 527 DONATIO CAUSA MORTIS, not assets unless required to pay debts 619 in which case, gift may be set aside by bill in equity . . . 619 as to proceedings in insolvency 619 not valid against executor or administrator unless a perfect gift 620 requisites of such gift 620 must be completed by delivery 621 what is good delivery 621 DOWRESS, when entitled to emblements 348, 349 (See Emblements.) DRUNKENNESS, as ground of incompetency in executor or administrator ... 88 habits of, disqualify 88, 89, 90 what are, decided by judge of probate 89 (See Administratok ; Competency; Executor.) as ground for removal 297 ECCLESIASTICAL COURTS, jurisdiction of 1, 2, 34 probate courts succeed 5 bona notabilia affecting jurisdiction 36, 37 INDEX. 747 EMBEZZLEMENT, Section of assets, process to prevent 421, 422 EMBLEMENTS, what are 346 annual crops 346 trees, shrubs, etc., in nursei-y 347 grass is not generally 347 but special kinds may be 347 go to executor and not to heir 348 but to dowress against executor 348 and so to devisee as against executor 348 except when testator intends otherwise 348 belong to executor of tenant for life or uncertain term of years 349 EMINENT DOMAIN, right of action for damage by taking land 367 if taken before death of owner, goes to executor or adminis- trator . 367 if taken after, belongs to heirs 367 (See SuKviVAi. or Actions.) ENTRIES, in books of account> when admissible evidence 749 EQUITABLE ASSETS, created by power of appointment over land 360 in general, how created 707 by directions of testator 707 (See Conversion; Equity; Marshalling Assets.) EQUITY, accounting in 550 (See Accounts.) proceedings in, to settle partnership 598, 640 (See Pahtnership Estate.) may order executor to give bond . 260 suit in, by executor or administrator 640 of revivor, by executor or administrator 640 of original bill by executor or administrator ...... 610 toenforce vendor's lien 640 to set aside fraudulent conveyances 640 to get construction of will 640 suits against executors or administrators 702-714 on liabilities of deceased 702 on liability in equity incurred by executor 703 administration suits 703 creditor's bill for administration 704 for single debt 704 for general administration 704 proceedings in such suit 705 concurrent suits, effect of 705 748 INDEX. EQUITY — continued. Section proceed till decree 705 administration suits by legatees or distributees 706 does not depend on assent 700 decree of distribution in 706 parties to creditor's bill 713 do not include debtors of estate 713 unless in case of collusion 713 (See Partnership Estate.) defences in such suits 714 costs in such suits 743-747 (See Costs.) equitable jurisdiction in United States 715 conversion, equitable rules as to 332-334 (See Conversion.) ESCHEAT, as affecting distribution 519 ESTOPPEL, by decree of court 11 none when decree is void 11 as when judge is disqualified by interest -ll in collateral actions 13 rule in various States 13, 32 (See Decree.) by judgment in suit on probate bond . 729 EVIDENCE, books of account, when admissible 749 admissions of deceased, effect of ■ 750 of executor or administrator 750 EXECUTION, real estate taken on, is assets 335 is to be accounted for as such 335 legal title is in executor or administrator 335 is in trust for heirs and legatees 335 he may maintain trespass for 335 or recover the possession of ... 335 in actions against executor or administrator 699 is against goods of deceased 699 until title has changed 717 when against executor personally , . 699 kinds of execution ... 699 on judgment against deceased . . 701 may be levied after his death, when . 717 when goods have been attached 717 revived by scire facias 717 in trustee process 723 in actions on probate bond 730 INDEX. 749 EXECUTOR, Section in -what county to be appointed 38-42, 59 within what time 49 who is competent to be 71-104 (See Competency.) must be named in will 71 infants in venire sa mere may be named executors .... 73 infants cannot act as executors 73, 74, 126 guardian appointed instead, when 219 unmarried women may be 75 married woman, how far competent 76-82 convicts and infamous people cannot be 83, 84 idiots and insane persons incompetent 85, 86 inability to read or write, effect of 87 habits of drunkenness and improvidence 88-90 poverty and insolvency, effect of 91 non-residents and aliens may not be, when 92-98 must appoint agents 97 corporations may be, when 98, 99 religious belief not a disqualification 100 surviving partner as executor 101 ' absolute and discretionary incompetency 103, 104 who may claim executorship, only one named in the will as such 105 constructive appointment 106 appointment by implication 107, 108 appointment by delegation 109 substitutes named in will 110 rule as to executor of executors 111-113 abrogated in many States 114 survival among several executors 115 right to be, not assignable ' . . 116 (See Administration.) bond of, given only when ordered by court in some States 260-262 (See Bond.) non-resident required to give bond 262 of joint executors 275 (See Bonds; Joint Executors.) executor of executor 111-113, 114, 212 not successor of executor in United States . 291 powers of, before probate, title vests on death of testator 614 many acts in pais may be done before probate 615 such as receiving and paying debts 615 giving receipts therefor 615 collecting estate 615 selling or giving away assets 615 how far these powers exist in United States 616 760 INDEX. EXECUTOR — continued. ' Section modified by statutes as to giving bond 616 distinction attempted between active and passive proceedings 616 aa to receiving notices, etc. ... 616 {See Administrator.) as to suits for goods taken from his possession .... 618 as to beginning suits before probate 618 and confirming title after probate 618 as to making demand on promissory note 630 (i'ee Promissory Note.) as to promise to pay debt of deceased, under statute of frauds .... 662 may be administrator cum testamento annexo, when 209 may be administrator pendente lite, when 245 misconduct of, as aSeoting compensation .... 546, 547 debt due to, how satisfied 420 debt due by, extinguished 361, 485, 534, 628, 634 deed by, of land sold by deceased ... 477 as to termination of the office, see Death; Removal; Res- ignation ; Revocation. EXECUTOR DE SON TURT 238-249 nature of this liability 238, 239 arises from meddling with estate 238, 239 but not from acts of necessity or charity 238 recognized in United States 240 arises from slight acts of meddling 241 or taking control of estate 241 or demanding debts or receiving payment of them .... 241 or paying debts due by deceased . . 241 or Belling the estate .... 241 not from locking up goods for preservation 242 or directing funeral .... 242 or feeding cattle, providing for children, or similar acts . . 242 nor from acts relating to real estate . ... ... 243 except as to leaseholds 243 or mortgages, there being personal property 243 does not arise from meddling with property not belonging to estate . 244 or property conveyed voluntai-ily . 244 although the conveyance is fraudulent and voidable .... 244 unless it has been avoided 244 does not arise from intermeddling after executor or adminis- trator is appointed .... 245 but is then a trespass 245 unless the trespasser claims to be executor or administrator . 245 nor when acting as agent of another only 245 purchaser from executor de son tort is not executor de son tort . 246 unless in collusion with him 246 INDEX. 751 EXECUTOR DE SON TORT— continued. Section nor -when done under a claim of title in the goods .... 247 nor when done as agent for a duly appointed executor or administrator 247 acts of, cured by subsequent appointment 248,617 and bind him as to receipts of money, etc 248,617 or sales of goods made by him 248 is a question of fact 249 liability of 675 to all persons aggrieved, at common law 675, 676 to creditors, legatees, and rightful executors 675 to extent of assets taken 675 to creditors, only for misapplication of assets 673 not liable for breach of duty of office of executor 675 to rightful executor or administrator . . 676 EXEMPTION, from sureties on bond 282 (See Bonds.) F. FATHER, ■when entitled to administer 160 ' (See Administrator; Next op Kin.) wheii entitled to distribution 515 (See Parents ) FEDERAL COURTS, removal to, not possible in insolvency proceedings 419 suits in, against executors or administrators 682 how affected by insolvency of estate 682 FEME COVERT, (See Husband and Wife; Woman, Married.) FER^ NATURE, animals, when assets of estate . 344 (See Animals.) FISH, property in, as assets 344 (See Animals.) FIXTURES, what are 352 must be affixed to realty 352 and so that they cannot be removed without damage to the realty 352 as to intention of person affixing them . . 352 rule as to what are fixtures is comparative 353 stringent in case of executor as against heir 353 except as to house ornaments 353 752 INDEX. FIXTURES — continued. Section or trade fixtures 353 strict against executor in favor of devisee 353 removal of, by executor or administrator 353 buildings erected by mortgagor, go to mortgagee 353 agricultural fixtures go to heir 354 manure, rule as to 354 FLOWAGE, action for, survives 367 FOREIGN ADMINISTRATION, governed by laws of state of residence 560 FOREIGN ADMINISTRATOR AND EXECUTOR, (See Conflict op Laws.) may endorse promissory notes, when 449, 571 may assign mortgage, when ... 448, 571 may appear in probate proceedings 562 (See Ancillaky Administration.) liability to creditors out of State 563, 570, 678 (See Ancillary Administration.) may secure ancillary administration ... 564 by producing letters and giving bond 564 right to sue out of State of appointment 565 right to sell property by statute .569 right to receive and receipt for property 569 right to sell real estate 569 right to transfer stock of corporation 569 effect of his appointment on domestic statute of limitations . . 571 FOREIGN ATTACHMENT, of legacy 498, 501 (See Legacy; Trustee Process.) FOREIGN LAWS, must be proved as facts 580 FOREIGN WILLS, admitted to probate 70 in what county 70 validity of 552 depends on law of domicil of maker as to personalty . . •. 552 and at time or death 552 (See Conflict of Laws; Wills.) FORUM, law of, governs payments of debts 574 FRAUD, as affecting conveyances by deceased 623 gives executor right to recover property conveyed' as assets . 623 in administration, ground for removal of executor or adminis- trator 300 INDEX. 753 FRAtJDS, STATUTE OF, Section as affecting promise of executor or administrator 662 applies to promise to pay debt of deceased 662 as to executors before probate of will 662 as to administrators before appointment 662 as to sale of land by deceased 477 FRAUDULENT CONVEYANCES, of real estate, effect on jurisdiction 67, 70 effect on inventory 319 . (See Inventory.) property so conveyed is assets 622 what constitutes fraud in insolvent debtor 622 arises when he conveys, being actually insolvent 622 or with actual intention to defraud creditors 622 bill to set aside 640 of estate, effect on penalty of bond 277 FRAUDULENT SALES, of real or personal estate, voidable 471 property not recoverable from honafiile buyer 471 nor is he bound to see to application of proceeds . . . 471, 473 effect of his knowing of wrongful use of proceeds .... 471 payment of debt due to him is such notice 471 fraud or collusion with executor renders purchaser liable . . 471 if liable, property may be recovered or its value 471 purchase by executor or administrator is voidable 472 and he is held trustee for estate 472 sales voidable only by those interested in estate 473 effect of subsequent sale to bona fide purchaser 473 sales by operation of law voidable 473 FUNERAL, expenses of, are first to be paid by executor or administrator . 391 should be reasonable, not extravagant 391 otherwise it is waste 391 reasonableness varies with amount of estate .... 391, 393 as to, when estate is insolvent 391 as to transportation of corpse 391 as to gravestones and monuments 392 generally allowed, in accounts 3B2, 538 as to, when funeral expenses incurred by third persons . . 393 as to ratification by executor or administrator 393 as to action for, not affected by insolvency of estate .... 393 as to estate of married women 393 when expenses of last illness are included 394 what is last illness 394 liability of executor or administrator for 657 is personal when 657 claim for, gives right to administer 185 754 INDEX. FUTURE OR CONTINGENT, Section interests, compromises affecting 435 (See Compromises.) debts not payable before legacies 487 assets, judgment for 698 eifect of such judgment 698 G. GAMBLER, professional, incompetent to be executor, when 90 (See Administrator; Executor; Improvidence.) GARNISHMENT. (See Trustee Process.) GENERAL LEGACY. (See Abatement; Legacy.) GIFT, inter vivos, is assets, when 627 subject to payment of debts of donor 627 otherwise not assets 627 what delivery is valid to create 620, 621 between hasband and wife, validity of 627 (See Donatio Causa Mortis.) GOODWILL AND TRADE NAME, are assets, when 612 (See Partnership Estate.) GRANDCHILDREN. (See Distribution; Next of Kin.) GRANDFATHER. (See Distribution; Next op Kin.) GRANT, by one of several joint executoi's, effect of 581, 585 of distributive share- by distributee, effect of 528 (See Distribution.) GRASS, when is emblements 345, 347 (See Emblements.) GRAVESTONES, cost of, when allowed in probate accounts 392 (See Funeral Expenses.) GUARDIAN, of infant, spendthrift, etc., takes legacy . 497 appointed in one State, cannot act in another 497 H. HALF BLOOD 161, 174, 519 (See Administration; Consansuinitt ; Next of Kin.) are generally by statute same as whole blood 519 statutes as to 519 aa to competency to administer 174 INDEX. 755 HEARING, Section on petition for appointment 253 (See Appointment.) on presentation of probate account 548 (See Accounts.) only those interested in the estate can take part . . . 257, 548 (See Accounts ; Appointment ; Interest.) or appeal 548 foreign administrator is so interested 562 HEIRLOOMS, are what 351 go to heir 351 HOMESTEAD, sale of, by executor for benefit of children 477 HUSBAND AND WIFE, domicil of, is the same 41 even when wife is living separate 41 competency of wife to be executrix or administratrix . . . 76-82 right of husband to be administrator 120-132 (See Administkation ; Administrator.) as to rights of property, see also Widow's Allowance. at common law all her antenuptial property belongs to him as to choses in action 122, 123, 383 if reduced to possession 383 ■ but if not, not 383 as to bills or notes payable to her 383 or mortgages 383 as to stocks in possession of trustee for wife 383 rent, arrears of, due on wife's land 383 reduction to possession by husband, what is 384 payment to him is 384 appropriation in hands of third party is not 385 nor mere intention to reduce 385 nor receipt in representative capacity 385 by proceedings at law . . 386 if husband dies after judgment it goes to his estate . . . 386 but if he sued with her, it goes to her 386 decree in equity, eflect of 386 proving debt in insolvency, effect of 386 award by arbitrators, effect of 386 by antenuptial agreement 386 rights of surviving husband ". . 387 all her choses in action 387 effect of statutes as to separate property of women 388 retainer of wife's legacy to pay husband's debt .... 484, 498 subordinate to support for wife and children .... 484, 498 after wife's death, is absolute 484 (See Legacy.) 756 INDEX. HUSBAND AND WIFIE. — continued. Section husband's right to wife's legacy 498 ■when payable to his executors 498 when to hers 498 when attachable for bis debt 498, 722 his right to sue for 498 her right by survivorship superior to his creditors' . . 498, 722 her right to support superior to husband's creditors' . . . 498 nature of this right 499 is personal and does not go to her executor 499 except after decree 499 may be defeated by payment to husband .... . . 499 right of husband under statutes as to separate property of wife 499 husband's right to wife's estate by distribution .... 509, 510 settled by statute in many States 509, 510 when lost by her will 509 what portion she may will away from him 509' when she is living apart from him for cause 509 share of husband at common law 510 how affected by statutes as to separate property of wife . . 510 statutes in various States 510 widow's right to husband's estate by distribution 511 regulated by statutes in most States 511 statutes in various States 511 effect of waiving provision in will •. . 511 effect of antenuptial agreement 511 effect of legacy in lieu of dower .... 511 as to partial intestacy ... 511 gifts between, how far valid ... 627 liability of husband of executrix 674 liability of married executrix 674 I. IDIOT, not to be executor or administrator 85, 86 incapable of change of domicil 40 ILLEGITIMACY, of children bars right to administration 163 bars right to distributive share of estate 521 unless given by statute 521 bastard cannot inherit from mother 521 except by statute 521 as to inheritance from mother's ancestors 521 statutes generally make illegitimate child heir of his mother . 521 and in some States of his father, if acknowledged .... 521 and descendants of bastard are his heirs 521 INDEX. 757 ILLNESS. (See Funeral Expenses.) Section last, expenses of 39i IMPROVIDENCE, as affecting competency 89-91 (5ee ApMjNisTKATOR ; Competency; Executor.) habits of, disqualify 89 what are such 89 decided by judge of probate 89 not merely moral delinquencies . ..... 89 or breaches, of trust .... .... 89 but habitual shiftlessness 90 such as gambling . . 90 or drinking . . 90 and by statute, dishonesty 9U INCOMPETENCY. (See Administrator; Competency; Ex- ecutor; Removal.) INFANT, when may be executor or administrator 73, 74, 126 legacy of, payable to guardian 497 wife, husband's right to administer 124 INSANITY, ground of incompetency of executor or administrator . 85, 86, 126 or of removal 297 (See Removal.) as affecting a change of domicil 40 (See Domicil.) as affecting husband's right to administer 125 (See Administration; Idiot; Non Compos.) INSOLVENCY, ground of incompetency to administer 91, 175, 298 (See Administrator; Competency; Executor.) effect on assets of estate 359 effect of, on payment of legacy to legatee 501 (See Legacy.) INSOLVENT ESTATES 408-420 generally settled similarly to insolvent debtor's estates . . . 408 statutes as to . . 408 provide for commissions . . 408 who receive claims .... 408 within limited time 408 disallowed claim may be appealed 409 after claims proved, court makes distribution ... . . 409 pa.rtnprship and individual claims separate 409 if assets suffice, all claims paid in full 410 and executor or administrator protected by decree of distri- bution . . 410 except as to surplus assets 410 758 INDEX. INSOLVENT 'EST ATF.S — continued. Section subsequent claims to be paid proportionately . . . . . . . 411 unclaimed dividends, how disposed of 411 surplus goes to legatees and distributees 411 payment to administrator of deceased creditor 411 contingent claims, how provided for 412 in New Jersey probate court receives claims 413 efEect of insolvency on proceedings at law 414, 696 if no insolvency, administrator personally liable 414 action at law not affected by actual insolvency 414 until proceedings begin in probate court 414 effect of insolvency proceedings on creditors' claims .... 41.5 bars all claims not proved .... 415 except as to new assets .... 415 ■which creditor not proving may follow 415 judge's decisions as to new assets, is conclusive 415 what claims may be proved against .... 416 due in future may be 416 contingent claims not, unless by statute 416 liability as surety held not to be provable 416 nor an uncertain debt 416 nor debts contracted by surviving partner 416 secured creditor can only prove for surplus 417 unless he surrenders security 417 but he may, if security is given by third person .... 417 rent, claim for, up to closing of commission may be proved . 418 but not for future rent 418 rent may be apportioned up to death of insolvent .... 418 interest to be allowed to decree of distribution 418 limitation, statute of, not suspended by insolvency proceedings 419 but exception as to new assets 419 proceedings in insolvency cannot be removed to Federal courts 419 as to retainer by executor or administrator of his own debt, see Retainer . 420 insolvency, when estate in several States 575 is determined by condition of whole estate 575 but payment of debts governed by laws of each State . . , 574 of partnership, how regulated 602 (See Partnership Estate ) eSect of insolvency on conveyances by debtor 619, 622 (See Fraudulent Conveyances.) plea of insolvency, in action against executor 687 of executor, no effect 687 of estate, effect of 696 INSURANCE POLICY, is assets, where 65, 356, 573 (See Assets.) INDEX. 759 INSURANCE - POLICY — continued. Section if payable to deceased or his representative 358 but not if payable to others 356 policy on another's life may be assets 356 in mutual relief associations, nature of ........ 357 on buildings, assets when 357 INTEREST, disqualifies probate judge 8 when pecuniary interest disqualifies 8, 11 when personal, or of kinship 8, 10 as creditor or debtor, disqualifies 8, 9 as heir or legatee 8 or executor of legatee 8 agent or attorney of one interested in the estate 8 or counsel for executor 9 or kin to the parties 10, 11 or if he wrote the will 10 or is pecuniarily interested . 11 makes proceedings void 11 and assailable iu other actions . . ' 11 in estate as allowing interference in probate proceeding 304-306, 311, 548 (See Accounts; Administration; Appointment; Hearing; Inventory; Removal.) prima facie interest is enough 257, 304-306, 311, 548 (See Title.) on money, due up to date of death is assets 359 on preferred debts is preferred 400 on debts paid in preference to legacies or distributive shares 401 in insolvency allowed to date of decree 418, 542 (See Accounts; Insolvent Estates.) allowed when estate is not invested 440, 536, 673 (See Investments.) on legacy 502-505 (See Legacy.) on capital of deceased partner employed in continuing business 605 (See Partnership Estate.) on debt paid, when allowed to executor in accounts .... 542 INTERPRETATION, of will, governed by law of domicil 559 (See Wills, Foreign.) INTESTACY, question as to, how decided 560 as to personalty, by law of residence of deceased 560 as to realty, by law where land is 560 INTESTATE ESTATE. (See Administrators.) distribution of 508-530 (See Distribution.) 760 INDEX. INTESTATE ESTATE — con^muei Section foreign,, admiuisti-atioa of 560 {See DiSTpiBUTiON.) admipistrajtion granted, as if intestate, when 206 partial, as to 234 INTOXICATION, habits of, affecting competency 88 (See Competency; Removal.) INVENTORY, required by early English practice 310 by later practice only when requested 310 in United States, is generally required 311 often omitted in practice 311 unless called for by interested parties ....... 311 ^rima/acie interest is sufficient 311 as by creditor or next of kin 311 what it should contain 312 list of personal property 312 sworn to, by executor or administrator 312 and appraisal of the same 312 within what time to be filed 313 when lapse of time will excuse 313 omission to file in specified time is nominal breach of bond 313, 321 (See Bond?.) and cause for removal 296 who must file by English practice, any who have portions of estate . . . 314 ~ in United States, only executors or administrators .... 314 but includes all kinds of administrators 314 except one who gives bond to pay debts and legacies . . 314 (See Bonds.) what should be included in all personal property 312 but only that belonging to deceased at his death .... 315 not any accruing after the appointment of the executor . . 316 as to property out of State 317, 563 choses in action should be included 318 notes and accounts ... 318 mere debts not inventoried in Maryland , 318 debts classified as sperate or desperate 318 presumptio? of collectibility of former . 318 and non-coUectibility of latter 318 presumption overcome by facts 318 real estate is to be included 319 and estate fraudulently conveyed by deceased 319 appraisement contained in is not conclusive of value 320 but is priina facie evidence of value 320 {See Appraisal.) INDEX. 761 INVENT ORY — continued. Section if there is no property belonging to the estate there need be no inventory 322 but having disposed of it is not enough to excuse filing inven- tory 322 supplementary inventory, -when required 323 impeaching iiiventqry, when allovifed 324 as to assets in various States 563 (5ee Ancillary Administration.) effect of, on accounts 533-535 INVESTMENT, of estate, by order of court 439 protects administrator 489 generally he must invest estate, when 440 within what time 440 not to do so is negligence 440 and charges the executor or administrator with interest . 440, 536, 673 ' generally simple interest only 443 but if executor has made personal profit, compound .... 443 at what periods compounded 443 at current legal rate generally 444 varied sometimes by equitable considerations 444 when executor uses money, presumed to make legal rate . . 444 but sometimes charged less 444 liability of, if done without order of court 441 in what property investment may be made 441 temporary deposit in bank 442, 530 INVOICE, oath to, may be made by executor or administrator .... 437 ISSUE, when take per capita 518 J. JOINT ADMINISTRATION, when one is an infant 73, 74 when woman marries 76, 82 never preferred to sole 137, 166 JOINT EXECUTORS AND ADMINISTRATORS, nature of their title 581 differs from ordinary joint tenants 581 is joint and entire 581 all considered as one person 581 possession of one, good against another 581 no partition possible 581 grant by one, effect of 581 release to the other void 581 762 INDEX. JOINT EXECUTORS, kc— continued. Section survivorship between 582 possession of one, good for all 583 all should join in suits, vphen 583, 636 except in suits on contracts with one 583, 636 which one is entitled to possession 584 acts of one, how far valid 585 may sell or assign property 585 may release debt due to estate 585 may settle account 585 may compromise claim 585 may assign or release mortgage 586 cannot bind co-executor by contract 586 nor endorse note payable to both 631 may execute power of sale, when 587 as to surviving executor 587 liability of one for acts of another 588, 589 limited by separate bonds 275, 588 (See Bonds.) effect of death or removal of one 588 effect of joint receipt 590 as to administrators in different States 591 suits between 592 none possible at law 592 abatement of, when they are opposite parties . .... 592 one cannot sue the estate .... 592 disputes between, adjusted in probate court 592 (See Foreign Administrator; Successive Administrator.) pleas, several, by various executors 686 division of commissions among 546 JOINT OWNERS OP PROPERTY, survivorship among 389 JUDGE, PROBATE. (5ee Probate Court.) jurisdiction in county , . 6 may issue warrants 6 establish forms and rules of practice 6 cannot act outside of county 7 except by exchange 7 or in ministerial acts 7 disqualified by interest 8 (See Interest.) is obligee of probate bond 270, 280 approves sureties on ... 281, 284 gives leave to sue on probate bond, when .... . 728, 730 JUDGMENTS, when are preferred debts 397 (See Debts, Preferred.) INDEX. 763 JUDGMENTS — continued. Section when liens, are not affected by rules of priority 401 in actions against executors or administrators 697 if suit is on claim against deceased 697 personal, when 697 for future assets 698 against deceased, how enforced 701 are assets, in what place 563 (See Assets.) as estoppels .... 729 in suits on probate bond, for what amount 730 JURISDICTION, of ecclesiastical courts 1, 2 over administrators 2 over executors . . 3, 4 of probate judge in county only 6, 7 unless by exchange 7 or as to merely ministerial acts 7 lost by interest . 8 (See Decree; Interest.) over wills of real estate 33, 34 depends on residence of deceased 38-48 how far dependent on amount of estate 54-58 in case of administrator de bonis nan 57 in case of non-resideuts depends on property 59-70 when property in two counties . 70 (See Administration; Non-residents.) K. KIN, NEXT OF, right to administer . .... 145 (See Administration; Consanguinity; Next of Kin.) L. LAND, sale of, by probate court conclusiveness of decree, when 16-18, 24 will of, when to be probated 33, 34 (See Real Estate.) LEASE, for long term is freehold, where 338 and goes to heir .... 338 (See Chattels Real.) liabilities under, of executor or administrator of tenant , 652, 653 as to assignee ' . . . . 652, 653 764 INDEX. LEGACY, Section bond to pay debts and, effect of 267-269 {See Administration; Bonds.) discharges real estate from general 269 but not from specific 269 payable after debts 478 if paid before, executor answerable 478 executor may take refunding bond from legatee .... 479 presumption of satisfaction of debt by legacy to creditor . . . 480 is rule of equity 480 rebutted by different intention of testator 480 modern rule 480 slight circumstances rebut 481 as where legacy is smaller than debt ... .... 481 or on conditions, or contingent . . 481 or not payable on death of testator 481 or is of a specific chattel 481 or by inconsistent provisions in will ... .... 481 legacy to debtor, no presumption of release of debt .... 482 express bequest of debt is only release 482 and leaves debt as assets for creditor 482 set-off of legacy and debt executor may retain legacy to satisfy debt 482 this does not prejudice action for balance 483 may be retained although debt is barred by limitation . . . 483 contra in Massachusetts 483 as to debt of husband of legatee 484 wife entitled to support before debt is extinguished .... 484 but after her death set-off is unconditional 484 {See Husband and Wife.) relative liability to contingent future or unknown debts . 487, 488 at common law, executor might take refunding bond from legatee 487 but not so in Massachusetts 487 abatement of general legacies abate before specific 489 and all equally 489 except those in lieu of dower or curtesy 489 or founded on valuable consideration 489 mere relationship not enough 489 except for support of near relative 489 specific legacies abate to pay debts 489 order may be changed by testator . , 489 but only by clear expression of intention 489 {See Abatement.) assent of executor to . 490 requisite to vest title in legatee .... 490 without itj legatee hfis no title to possession of legacy . . . 490 INDEX. 765 LEGACY — continued. Section if he takes it, executor may have trover or trespass or replevin 490 assent, express or implied 491 implied from acts or words 491 to legacy to executor 492 implied from his acts or words 492 assent vests title in specific legacy in legatee 493 and he may sue executor for possession 493 is condition precedent to suit for general legacy 493 except in some of the United States 493 in which States, legacy may be sued for without assent . . 493 and executor may defend by showing lack of assets . . . 493 assent once given, is irrevocable 494 and legatee cannot be compelled to refund 494 or redeliver specific legacy 494 except in certain cases time of payment of 495, 496 generally a year from appointment 496 if within two years, refunding bond may be required . . . 496 as to annuities, and residuary legacies 497 to whom payable 497 not always to legatee 497 to guardian of infant 497 to guardian of person non compos 497 to guardian of spendthrift 497 in case of trust, to whom . . 497 as to foreign guardian 497 to husband of married woman 497 to his executor, when 498 to her executors, when 498 when reduced to possession by husband 498 when attachable by his creditors 498 his right to sue for 498 her right by survivorship, superior to his creditors .... 498 her right to support out of legacy 498 when superior to his creditors 498 nature of this right 499 is personal and does not go to survivors 499 except after decree 499 may be defeated by payment to him . 499 right of husband to, under statutes relating to married women's property 499 discharge or release of, by wife 499 legacy to life tenant 500 payable without security, when 500 security only demanded when waste is apprehended .... 500 to persons not heard of for long time 500 liens on legacy 501 766 INDEX. LEGACY — continued. Section prevent payment to legatee 501 attachment of, or trusteeing 498, 501 vphen may be made 498, 501 of specific legacy 501 (See Attachment; Trustee Process.) bankruptcy or insolvency of legatee, effect of 501 death of legatee, payment to be made to his administrator . . 501 interest on legacy what is payable on specific legacy 502 on stock, bonds, etc 502 on general legacies .... ... 503 begins to run, when 503 as to income of fund bequeathed 503 effect of insufficient assets on interest 503 what time interest on legacy to child begins . . ... 504 as to other near relatives .... 504 only minor children 504 and unmarried daughters 50t as to legacy to widow . 505 when legacy is in lieu of dower 505 rate of interest, same as legal rate generally ... . . 506 when compounded . . 506 money in which legacy should be paid .... .... 507 action for 699, 706, 728 (See Equity.) as to specific legacy 679 as to general legacy after assent 679 when no assent is necessary 679 is not sufficient for grant of administration de bonis non . . . 216 LIABILITY OF EXECUTOR OR ADMINISTRATOR, upon contracts of deceased ... 643-646, 655 (5ee Survival of Actions.) for payment of debts 403, 404 (See Debts.) on joint contracts, action against survivor 649 (See Partnership Estates.) if suit is pending, effect of death 649 upon torts of deceased 650 joint tort-feasors, how liable 650 upon covenants of deceased ... . .... . . 652 for what breaches . . 652 of covenants in lease 652 for rent, on lease . . 653 as to real estate 654 contracts for purchase or sale of land 654 as to contracts of executor or administrator . , . . 656 liability is personal . . . 656-659 INDEX. 767 LIABILITY OF EXECUTOR, he — continued. Section executor or administrator cannot bind the estate 656 exception as to funeral expenses 657 as to account stated 658 personal contract of executor binds him . 660 must be on valid consideration 660 as to promise to pay debt of deceased 661 effect of statute of frauds upon 662 for waste or devastavit 666 what amounts to waste 667 {See Waste.) of husband of executrix 674 of married executrix 674 (See Husband and Wife; Woman, Married.) of executor de son tort 675, 676 {See ExECUTOK de son tort.) upon bond to pay debts and legacies 677 {See Bond.) is only in State of appointment 563, 570, 678 (See Foreign Administrators.) LICENSE, to sell property 446, 447 to sell real estate, granted by what court 454 petition for, contains what allegations 454 proceedings for sale upon 455-461, 465 LIENS, mechanic's, are species of preferred debt 401 may be satisfied out of estate subject to lien 401 unless lien dissolved by death 401 LIFE, estate for, is freehold . . 337 goes to heir and not to executor or administrator 337 estate pur outer vie is, by statute, a chattel interest 337 LIFE TENANT, legacy to, when payable without security 500 when payable to remainder-man 500 (See Legacy.) LIMITATIONS, STATUTE OF, effect on grant of administration 216 (See Administration.) how affected by administration pendente lite 223 how affected by public administration 223 (See Administration.) how affected by bond to pay debts and legacies 269 (See Administration; Bonds.) how affected by irregular or defective bond 274 (See Administration; Bonds.) 768 INDEX. LIMITATIONS, STATUTE OF — continued. Section how affected by exemption from sureties without requisite notice 283 how affected by notice of appointment of executor or adminis- trator 325-327 (See Notice.) how affected by insolvency proceedings 419 (See Insolvent Estates.) effect of allowing suit to be bai-red, on liability of executor or administrator 423 bars action for taxes 428 how applied to suit on promissory note 446 effect of, on application to sell land to pay debts . . . 467, 468 (See Real Estate.) effect of, on retainer of legacy to satisfy debt 483 (See Legacy.) may be waived by executor, and debt paid 543, 670, 739 and it is allowed in account 543, 670 (See Debts.) but not so of special statutes 543, 670, 739 effect on, of appointment of foreign administrator . . . . 572 (See Foreign Administrator.) how pleaded, in suit against executor or administrator . . . 688 general statute bars claims against estate, when 735 may be waived, when 543, 670, 736 effect of part payment upon 736 effect of new promise upon 736 applies to suits in equity 737 limitation of time before bringing suits against estates of dece- dents 738' special statutes of limitations of suits against estates of dece- dents 739 statutes in various States 739 how affected by giving bond 269, 274, 283, 739 (See Bonds.) cannot be waived by executor or administrator . . . 543, 670, 739 limits what actions . 740 as to change in administration . 740 equitable exception to the statute 741 knowledge of death affects exception 741 grounds of equitable exceptions 741 LINEAL CONSANGUINITY 152 (See Consanguinity.) LIS PENDENS, in another State, effect of 568, 572 (See Ancillary Administration.) administration during 221-229 (See Administration.) INDEX. 769 LOCALITY, Section of assets 64-70, 563, 573 (See Assets.) LUNATIC. (See Idiot; Insanity; Non Compos.) incompetent to be executor or administrator 85, 86 M. MANURE, when it is a fixture 354 MARRIAGE, effect of, on administratrix 81, 82 void, deprives husband of right to administer 123 (See Administration.) voidable, does not, unless annulled 123, 124 void or voidable, effect on widow's right to administer . 142, 143 fact of, how proved 144 (See Husband and Wife; Woman, Married.) MARRIED WOMAN. (See Husband and Wipe; Woman, Married.) MARSHALLING ASSETS. (See Equity; Equitable Assets.) as between equitable and legal assets 708 is done by court of equity 708 preserves legal liens and charges 708 but compels secured creditor to resort to the assets charged 708, 709 and admits others to equal share of equitable assets , . 708, 709 as between specialty creditors and common creditors .... 709 as between mortgagee and common creditors 709 as between vendor of land, and common creditor ....,' 709 as between legatees and heirs or devisees 710 order in which assets are applied to debts 711 how varied by direction in will 711 subrogation of heirs to rights in personal estate 712 MATERNAL KINDRED, as distributees 520 rules governing 160 MECHANIC'S LIEN, proceedings on, survives 637 MINORITY, administration daring ^s, 218-220 (See Administration.) MINORS, incompetent to be executors or administrators, when ... 73, 74 administration bond of, when valid 74 49 770 INDEX, MISCONDUCT, Section of executors or ^administrators as affecting compensation . 546, 547 MORTGAGE, is not assets when paid 68 is now held to be personal property 339 even if in fee, is in trust for distributees 339 money is to be paid to executor or administrator 339 and he accounts for the mortgage debt 340 he may take possession of land 340 and sell under the mortgage 340 or distribute as personal estate ... 340 heirs-at-law have no title to 340 and a deed by them is invalid 340 unless after foreclosure or distribution 340 a gift of mortgage is a gift of personal property 340 and a mortgage is personal estate until foreclosure is com- pleted 340 mortgage is merged in fee, when 341 not if any advantage to mortgagee to keep it alive .... 841 therefore, if it is kept alive, it goes to executor 341 and the equity to the heir . . . 341 the equity is real estate ... . . 342 and goes to the heir .... 342 but proceeds of sale of mortgaged premises are personal prop- erty if paid to mortgagee in his life 342 if after his death, are real estate 342 as between husband and wife, to whom it belongs 383 is a species of preferred debt .401 assignment of, by executor or administrator 451, 571 may be without leave of court before foreclosure 451 by leave only, after foreclosure 451 power of executor to mortgage assets 452, 474 by mortgage with power of sale 452 may be implied from power to sell by will 476 on land sold to pay debts 463 (See Real Estate.) assignment of, by foreign administrator 448, 571 by joint executors 586 (See Joint Executors.) mortgagor appointed executor discharges the mortgage, when . . 628 only when the mortgage debt is charged as assets .... 628 as to effect of not charging debt in inventory ... . 628 but equity will keep mortgage alive, when 628 the rule does not extend to assignees of mortgage .... 628 actions by executor or administrator of mortgagee 629 actions for possession should not be by heirs 629 but by executor or administrator 629 INDEX. 771 MORTGAGE — continued. Section action to foreclose should be by ekeciitor or administrator . 629 suit to redeem should be by heirs of mortgagor 629 unless otherwise provided by statute 629 MOTHER. (See Distribution; Next of Kin.) N. NEGLIGENCE, as cause of liability action for, is assets, where 66 how valued in estimating penalty of administration bond . 278 (See Bonds.) action for killing person by 368 did not exist at common law 368 but is given by statute ... 368 is assets, when .... ... 368 not if given to next of kin or widow ..... . . 368 or to executor in trust for them 368 action for negligently injuring person so that he dies is given by statute 369 if injured person lives after injury 369 even a short time 369 and though insensible . 369 but if so, no damages for mental suffering 369 if death instantaneous, no action 369 and burden is on plaintiff to show it was not 369 effect of motions and sounds after injury 369 action given in one State, when enforced in another . . 370, 372 so enforced, if it gives a right of property 370 not if merely penal 370 of executor or administrator in collecting estate 423 renders him liable as for waste ... .... . . 423 if he allows suit to be barred by statute of limitations . . . 423 or allows estate to be taken in execution for debt . . . 423 in not investing the estate . . 440 charges him with interest 440 is ground for removal from office 300 NEPHEWS AND NIECES. (See Consanguinity; Distribu- tion; Next of Kin.) NEW ASSETS, effect of, on time limit of grant of administration 50 in insolvent estates . . ' 415, 419 (See Assets.) NEXT OF KIN, as entitled to administer 133-135, 145-177 (See ADMiNisTRATon ; Administration.) 772 INDEX. NEXT OF Km — continued. Section by right of distribution 145, 146-177 (See Distribution.) when right is settled 150 by law of domicil of deceased 151 who are such 152-162, 508 (See Consanguinity.) on father's and mother's side 160 of half and whole blood 161 ascending and descending line 162 of illegitimate children 16.3 of kin of bastard 163 of adopted child . . . . 164 right of, as distributees 513-517 (See Brotheus and Sisters; Children; Distribution; Parents; Representation, Right of.) statutes as to . . .... 517 NOMINATION, power of, to office of administrator 96, 190-193 given to non-residents 96, 190 sometimes only to husband, wife, or next of kin . . . 190, 191 for valuable consideration 193 NON COMPOS, cannot be executor or administrator 85, 86 (See Idiot; Insanity.) NON-RESIDENTS. (See Alien.) administration of estate in county where there is property . 59-70 no fixed amount necessary , . . 60 decree granting administration conclusive as to property . . 61-63 debt due to, is property, where 64 chose in action of, is property, where . . 65, 66 real estate is assets, where . . . . 67 prima facie title supports grant of administration on estates of . 69 when property in several counties ... . . . . .70 as executors or administrators, how far competent . 92-97, 172, 298 (See Competency.) required to give bond . . ; 262, 263 estate of, by whom administered 135 as sureties on bond, competency of 284 as to notice to, of proceedings . . 253 NOTICE. (See Citation.) of appointment as executor or administrator 325 effect of, on claims against estate 325-328 origin of, in chancery 325, 326 limits time of suit 325, 326, 327 is published in newspaper or otherwise 325, 326 proof of publication by affidavit 327 INDEX. 773 NOTICE — continued. Section of hearing on rendering of account 548 of application for exemption from probate bond 283 of proceedings for removal of executor or administrator . . . 293 0. OATH, probate accounts to be verified by 532 OPEN AND CLOSE, right to, in hearing for appointment of executor or adminis- trator 257 OYSTERS, property in, as assets, where 344 P. PARAPHERNALIA, derivation of the word 375 signifies apparel and ornaments 375 includes what 375 as adopted in some of United States . . . . _ 376 is extended to minor children 376 PARENTS, when entitled to administer 160 as distributees 515 take only when no husband or wife or children surviving . . 515 generally share equally 515 sometimes father takes whole .515 statutes in various States . 515 children preferred to, as administrators, when 169 PARTIES, to suits by or against executors or administrators, see Equity; Suits. as witnesses 751-767 (See Witnesses.) PARTITION, none between joint executors 581 PARTNERSHIP, is dissolved by death of partner .... 593 settlement of estate 593-613 in some States cannot be by surviving partner 564 in others is by surviving partner 101, 594 (See Competency.) real estate of partnership, how far assets 336, 594 is so, while so used 594 774 INDEX. P ARTNERSHIP — continued. Section after partnership affairs settled becomes real estate .... 594: rights and duties of surviving partner 595, 596 has right by survivorship, when 389, 595, 596 duty of collecting assets and paying debts 595, 597 sale of assets to surviving partners . 595 valuation of assets, or private sale 597 sale by order of court 597 biU in equity to settle partnership affairs 598 unsalable assets, how disposed of ... . 599 debts due by firm 600 proceedings by creditors against surviving partner .... 600 against estate of deceased partner . . . . . . 600 rules when surviving partner is administrator . .... 485 partnership debts payable from partnership assets . . . 600 individual debts from individual assets 600 when suit by creditor is at law, and when in equity .... 601 effect of surviving partner being executor 485 insolvency of partnership ... 602 how determined 602 proceedings in, and distribution of assets 602 individual creditors, suits against partnership assets . . . 603 when they can proceed against surviving partner 603 only when there is a collusion 603 or some obstacle to suing representative of deceased partner 603 debts due to firm 604 collectible only by survivors ... 604', 636 or their executors, if they die . ..... 604 set-off of debts 604 as to claim against insolvent estate . . 409 business continued after death 605 profits to be accounted for 605 capital to be made whole 605 liabilities of surviving partners continuing the business . . 605 interest upon the capital employed 605 profits of business so continued 606, 607 compensation of surviving partner for labor and skill . . . 608 not ordinarily allowed 608 creditors, how affected by continuing business 609 debts subsequent to death of partner do not bind his estate . 609 executor or administrator joining in business does not bind estate 609 but becomes personally liable 609 unless directed to do so by will 609 in that case he binds estate 610 so far as the estate is directed to be used in business . . 610 only so much of estate is bound as testator directs .... 610 executor as partner by direction of will 611 INDEX. 775 PARTNERSHIP — conhnuerf. . Section does not become so unless he actually joins the business . . 611 good- will and trade name 612 as assets, when 612 allowance to widow but of partnership assets ....... 380 PATENT, interest in, goes to executor or administrator 359, 437 in trust for those entitled beneficially 437 executor or administrator may apply for 357, 437 or for reissue . 437 or bring bill in equity to enforce 357, 437 PATERNAL KINDRED, as distributees 520 statutes as to 520 rules as to consanguinity in case of 160 PAYMENT, of debts, see Debts. to foreign executor, how far valid 569 {See Ancillary Administration.) order of 390-398, 402 what are preferred .... 391-401 only valid debts to be paid 402, 645 how paid out of assets 402 amounts paid allowed in accounts 537, 542, 543 time when to be paid 405, 406 due to executor or administrator, how paid 420 due by executor or administrator, extinguished . 361, 485, 534, 628, 634 satisfaction of debt by legacy 480 set-off against legacy 483 interest on, for what time 542 payment of, when barred by statute of limitations .... 543 governed by law of place of administration 576 of legacies, see Legacies. at what time 495, 496 when refunding bond may be required 496 to whom payable 497 not always to legatee 497 to guardian of infant 497 to husband of married woman 498 to his executor, when 498 to her executor, when 498 to attaching creditor, when 498 to life tenant, without security 500 to administrator of legatee 501 liens on, effect of 501 attachment of, trustee process against 498, 501 776 INDEX. PAYMENT — continued. Section bankruptcy of legatee, effect of 501 interest on legacy, when payable 502 rate of interest payable on legacy 506 of distributive shares {See Distribution.) time of payment 524 distribution may be partial or total 524 set-off of debts against 525 {See Set-off.) advancements set off 526 to whom share is payable 528 of foreign intestate estates 560, 576-578 PECUNIARY INTEREST, in estate disqualifies judge of probate 8, 11 PENSION, is assets, when 357 PERSONAL ESTATE, amount of, effect on jurisdiction 54, 55 composes assets of the estate 328, 344-389 {See Assets.) PIGEONS, as to property in, as assets 344 PLEADING, in actions against executors and administrators 684-696 (See Suits against Executors.) PLEDGE, power of executor to pledge assets 452 {See Mortgage.) POLICY OF INSURANCE, is assets, where 65 {See Insurance Policy.) POSSESSION, by co-executors of estate ... 581, 583, 584 {See Co-ExECUTORS ; Joint Executors.) POSTHUMOUS CHILD, when it takes as distributee 523 by statute generally 523 as to child of intestate 523 {See Distribution; Next of Kin.) POVERTY, as affecting competency to administer 91, 140 {See Competency.) POWER, of sale in will, effect of, on grant of administration de bonis non 217 {See Administration.) effect of, on estate of executor in land 330, 331 INDEX. 777 POWER — continued. Section is assets, when 67 may be implied 331 from what circumstances implied 331 not from specific charge of lands with debt 331 (See Assets; Keal Estate.) given to several executors may be executed by survivor 475, 587 does not at common law survive to administrator de bonis non 475 but by statute, it does in many States 475 (See Joint Executors.) may include power to mortgage 476 to pay debts, by statute §34, 453-470 (See Real Estate.) of appointment over land makes equitable assets 360 over personal property, execution of 552 (See Will, Foreign.) proceeds of, may be recovered from outgoing executor by his successor 633 of executor or administrator before probate, see Administra- tor; Executor. PREFERENCE, of debts, what are preferred, see Debts. funeral expenses and cost of last illness 391-394 costs of administration 395 including counsel fees, when 539 and reasonable expenses 540 debts due to States, or United States 396 judgment or record debts, when 397 servants' wages 398 rent 399 specialty debts 401 PRESUMPTION, of satisfaction of debt, by legacy 480 (See Legacy.) of collectibility of debt • • ■ 318, 534 of continuance of domicil 42, 553 of domicil being at place of birth 553 PRIMA FACIE, title to property sufficient to give standing in probate court 50, 56, 67, 69, 216, 304-306, 311, 548 proof of assets, sufficient to support administration .... 216 PRINCIPAL ADMINISTRATION, difference between, and ancillary 562 (See Ancillary Administration.) PRIORITY, of debts, see Preferences, of claims to administer, see Administration. 778 INDEX. PRIORITY — continued. Section effect of, as ground for removal of executor 294 PROBATE, of will of real estate, effect of 33, 34 of will in other States, effect of 32, 557, 558 gi-ant of, prevents administration pendente lite 226 ends public administration 282 PROBATE COURT, in England 2 in United States 5 jurisdiction of, over administration 5 different names of 5 are successors of the ecclesiastical courts 5 constitution of 6 judge and clerk of 6 rules of practice uniform in 6 appeal to Supreme court 7 /^ decree of, when impeachable collaterally 11 void decree of, may be attacked 11 court of record 11 -.jionclusiveness of decree 13-32 (See Decree ; Estoppel ) is court of general jurisdiction .... 14, 16, 17, 18, 23, 24, 25 certiorari, or writ of error, will not lie against its decrees . . 21 acts of, presumed to be regular 28 does not try titles to property 50, 56 acts on prima /acie titles . - 50,56 proceedings in, against executor or administrator 716 for appointment of executor or administrator 250-259 (See Appointment.) citation necessary, when 252-255 PROMISSORY NOTE, payable to wife, when assets of husband's estate 383 (See Husband and Wife.) endorsement of, by executor or administrator . . . 448-450, 571 has the same effect as if endorsed by owner 448 as to endorsement by foreign executors 449, 571 good, if they have note in possession, and endorse before over- due 449 if overdue, can only be endorsed in State of administration . . 449 before appointment, as to executor or administrator .... 450 as to who shall make demand, before appointment of executor or administrator ... 630 upon whom demand should be made, if maker dies .... 630 upon whom, if endorser dies 630 suits on note payable to bearer, may be by executor individ- ually 631 INDEX. 779 PROMISSORY J>!OTE — continued. Section note to two executors cannot be endorsed by one 631 PROOF. (See Burdkn of Proof; Evidence; Presumption; Witness.) PROPERTY, how far necessary to grant of administration 54, 55-58, 59, 122, 141, 145, 146 prima facie title to, sufficient in probate court 50, 56 PUBLIC ADMINISTRATOR 178, 180 (See Administration.) PUBLICATION OF NOTICE. (See Citation; Notice.) PUR AUTER VIE, estate for, is chattel interest 337 and goes to executor or administrator 337 R. READ, ability to, as affecting competency 87 (See Competency.) REAL ESTATE. (See Chattels Real; Mortgages.) determines county of administration, when 59 power to sell for debts makes it assets, where 67, 70 even though fraudulently conveyed away 67, 70 liable for debts, after giving bond to pay debts and legacies . 267 (See Bonds.) when covered by probate bond 279 (See Bonds.) is not at common law assets 328 but may be made so by will 329 as when devised for payment of debts 329 estate of executor in such case 329-331 (See Power of Sale.) when made assets by conversion 332, 333 (See Conversion.) when by statutory power of sale 334 (See Power op Sale.) taken on execution , is assets, when 335 may be occupied by executor, when 335 and is accounted for as assets, when 335, 536 (See Execution.) bought with partnership funds is assets, when .... 336, 594 sale by statute to pay debts 453-470 proceeds of, are assets 453 if surplus over debts, surplus is real estate 453 includes all lands, rights of entry or action, and other rights which go to heirs 454 780 INDEX. REAL ESTATE — continued. Section is subject .to dower, curtesy 454 as to devised real estate charged before undevised .... 454 {See Marshalling Assets.) long leases, when freeholds 454 license to sell granted by what court 454 what petition must contain 454 hearing is had on petition 455 sale is at public auction '. 455 any one may give bond and avoid sale 455 what notice of sale is given 455 adjournment of sale 455 as to sale of land fraudulently conveyed 455 license remains in force a limited time 456 as to misconduct in sale 456 what will avoid the sale 456, 457 action to recover must be brought, when 457 what real estate may be sold 454, 458 as to land fraudulently conveyed as to creditors 458 or equitable interests in land 458 order of sale, effect of 16-18, 24, 459 what will avoid sale 456, 457, 459 mere irregularity will not 459 but substantial departure from statute will 459 application to be made in what court 460 notice, to whoii} given 461' lack of, avoids sale 461 title to land, when changed by sale 462 remains in heirs till sale 462 effect of this on trustee process 462 (See also Trustee Process.) as to liens on land sold 463 remain prior to title of purchaser 463 or are discharged out of proceeds 463 or executor may redeem mortgage 463 taxes are charged againtit rent 463 payment of price, how enforced 464 by subsequent sale and action 464 license, granting of, in discretion of court 465 or as to specific land to be sold 465 effect of bond to pay debts and legacies 466 . deprives executor of power to sell 466 debts must exist, to support sale 467 if barred by statute of limitation, no power of sale . . 467, 468 expenses of settling estate will support 467 granting license is conclusive of debts 467 debt due to executor or administrator is enough 468 but may be barred by his laches 468 INDEX. 781 REAL ESTATE — continued. Section effect of his advancing money to pay debts 488 proceeds are not new assets, to remove bar of limitations . . 468 bond, administration ■when it covers administration of proceeds .... 279, 469, 724 does not cover neglect to apply for license 469 covenants in deed under license bind executor or administrator personally 470 (See Fraudulent Sales.) accounting for proceeds of 536 or income of 536 care of, when allowed to executor 541 taxes on, when allowed to executor 541 repairs on, when allowed 541 right of foreign administrator to sell 569 (See Foreign Administrator.) belonging to partnership, when assets 594 (See Partnership Estate.) liabilities of executor as to 654 as to contracts to buy land 654 as to contracts for sale of land 654 effect of bond to pay debts and legacies on . . . 267, 268, 269 wills of, foreign, validity of 555 sale of, as working conversion 332, 333 sold by deceased, deed given by executor, when 477 fraudulent sale of, affecting jurisdiction 67, 70 REFUNDING BOND, when required from legatee- 479, 500 (See Bonds; Legacy.) when required from distributee 524 (See Bonds.) RELEASE, of interests in land by executor 477 when it is proper, and allowed 477 of right to account, effect of 532 RELIGIOUS BELIEF, does not affect competency as executor or administrator . . . 100 (See Administrator; Competenct; Executor.) REMOVAL, of executor or administrator 292 (See also Death; Resignation; Revocation.) may be by appeal from decree of appointment 292 or by citation for removal 293 the latter is original process 293 and must be by notice to persons interested , . 293 causes justifying removal 294 because of prior right in another 294 unless that,right has been waived or lost 294 782 INDEX. REMOVAL — continued. Section or for causes which would incapacitate for appointment . . 295 ^ (See Competency.) or for failure to give bond 295 or to renew bond when ordered . . 295 or failure to file inventory 296 or to account when ordered 296 or to obey an order of probate court 296 or for insanity 297 or habitual intemperance 297 or physical ill health 297 or for conviction of infamous crime 297 as to insolvency 298 as to removal from State 298 as to general discretion of court 299 as to wasting the estate 300 as to frauds in administration 300 aa to neglecting duties of oflBce 300 as to apprehended waste 300 in case of not giving security .... 300 effect of 304 as to turning over estate to successor , 304 upon order of court 304 enforcement of such order 304 application for, must be by one interested in estate . . , 304 but p-jma/acie interest supports the application 304 but on hearing, the interest must be supported 305 who are interested parties 306 as to debtor of the estate 306 as to legatee and executor under void will 306 (■See Administration ; Appointment) EENTS, are assets, when 358 accruing after death go to heir 358 accruing before and not paid to executor or administrator . 358 as to rents due to lessee for years who sublets 358 apportionment of 358 as between husband's estate and wife, to whom it belongs . 383 when are preferred debts 399 (See Debts, Preferred.) may be proved in insolvency 418 (5ee Insolvent Estates.) maladministration of, breach of bond 731 due by deceased, charge executor 653 RENUJSrCIATIOJT 194-200 . , . (6'ee Acceptance.) by agreement, how far valid 116 . . . (See Sale ) INDEX. 783 RENUNCIATION — conimued. Section by default after citation 194 by lapse of time 194 by express refusal . 195 ■whether it must be in writing 195 by acts m joais, verbal or written 196 withdrawal of 197 effect of 198 REPLEVIN, action of, survives 362 {See Survival op Actions.) if against executor or administrator 364 effect of judgment, and return of goods 364 discharges the goods from inventory 364 REPRESENTATION, right of, what it is 512-518 at common law 512 gives rights to issue of deceased next of kin 512 definition of 512 is generally limited to near relatives 512, 518 statutes in various States as to 51 8 (See Consanguinity; Next of Kin.) RESIDENCE. (See Domicil; Non-Residents.) of deceased, affects county of administration 38-42 fact of, established by decree of court 13, 44-48 of executor or administrator, affecting competency . . 92-97, 172 (See Administkation; Competency.) RESIDUARY LEGATEE, right of, to administration, prior to widow's 141 right of, as administrator cum tesiamento annexo . . . 205, 207 may give bond to pay debts and legacies, when 267 RESIGNATION, of executor and administrator. (See also Death; Removal; Revocation.) when allowed 307 effect of 308 amounts to a revocation of letters 308 leaves sureties liable, when 308 and demands an accounting 308 acceptance of, is in discretion of court 309 wrongful acceptance, effect of, on new appointment . . . 309 should be after notice 309 RETAINER, by executor or administrator 420 of debt due him by deceased 420 in priority to others of equal degree 420 but generally in United States only equally with others . . 420 784 INDEX. EETAINER^coraftnuerf. Section and he must prove in insolvency as other creditors .... 420 or by special proceedings 420 of legacy to pay debt due to estate 483 of wife's legacy to pay husband's debt 484, 498 (See Legacy.) plea, and proof under 694 REVIVOR, bill of, by executor or administrator 640 REVOCATION", of appointment of executor or administrator. (See also Death ; Removal; Resignation.) for fraud in grant of letters 301 for after-discovered will 302 effect of such revocation on precedent acts 302 statutes as to such acts 303 S. SALE, of personal property belonging to estate 445 may be made by executor or administrator 445 without license of court 445 including sale of terms of years 445 and other chattel interests in land 445 no implied warranty of title 445 but may be express, or resulting from fraud 445 ordered by court, when .... 446 of persona] property 446 or choses in action . 446 {See Choses in Action.) made obligatory by statute in some States 447 in others only possible by license of court 447 as to endorsement of notes 448-450 («See Promissory Note.) of real estate 453-477 (See Real Estate.) sale of homestead by executor 477 by administrator before appointment 617 (See Administrator; Executor de son Tort.) by administrator appointed in another State 569 (See Ancillary Administration.) of right to administer, how far valid 193, 200 SAVINGS BANKS, deposits in, when assets 357, 624 when donatio causa mortis, are assets 624 (See Donatio causa mortis.) ■INDEX. 785 SAVINGS BANKS — continued. Section deposit in name of deceased, when assets 624 requisites to validity of gift of 624, 625 actions to recover deposit as assets 626 SECURITY. (See Bond.) SERVANT, wages of, when preferred debt 398 (See Debts, Preferred.) SEPARATE PROPERTY OF MARRIED WOMAN. (See Hus- band AND Wife ; Woman.) SET-OFF of legacy and debt . 483, 484 (See Legacy.) of distributive share and debt 525 of partnership debts 604 (See Partnership Estate.) plea of, in action against executor or administrator .... 689 in trustee process 722 of mutual debts in actions by or against executors or adminis- trators 742 debts must be in same capacity 742 either representative or individual 742 broader rule in insolvent estates 742 rule applies in equity 742 but the beneficial interest governs .... 742 SEVERAL ADMINISTRATORS OR EXECUTORS. (See Joint Executors.) SICKNESS, last expenses of 394 (See Funeral Expenses.) SISTERS, as distributees 516 (See Brothers and Sisters.) SOLE ADMINISTRATION, preferred to joint 137, 166 SPECIAL ADMINISTRATION. (See Administration.) SPECIALTY debt is not generally preferred . . . . 401 SPECIFIC LEGACY. (See Legact.) SPERATE DEBTS 318 (See Inventory.) STIRPS. 7 fg Consanguinity.) STIPES. > *■ SUBSTITUTED EXECUTOR 110 (See Executor.) SUCCESSIVE ADMINISTRATORS, no privity of estate exists between 632 60 786 INDEX. SUCCESSIVE ADMimSTR AT OKS — continued. Section administrator de bonis non becomes the representative of the estate 632 and can call preceding administrator to account 632 transfer of estate between 304, 632 account presented by outgoing administrator 632 incoming administrator may object to it 632 payment of balance by outgoing administrator 632 actions to enforce this payment 632 remedies where outgoing administrator will not account . . . 632 by action of contract, or suit in equity, or action on pro- bate bond 632 right of administrator de bonis non to retain funds of estate against trustee process 632 his right to recover proceeds of real estate sold to pay debts - under power in will ..:.... ... 633 right of outgoing executor or administrator to recover from ad- ministrator de bonis non money advanced to estate . . 634 action to enforce this right 634 suit begun by executor carried on by successor 635 effect of bond to pay debts and legacies on estate in hands of a successor 269 SUITS BY EXECUTOR AND ADMINISTRATOR. (See Equity.) when should be in representative character 636 should be so for all causes of action accruing before death . 636 as to subsequent causes of action, may be representative or personal suit 636 joinder of personal and representative counts 636 by several executors, should be by all 583, 636 . but if not, the defect is waived by lack of plea in abatement 636 when one of several makes contract, he should sue alone . . 636 (See Joint Executors.) by executor of deceased partner, none for debt due to firm . 636 on several covenant 636 (See Partnership Estate.) pro/ert generally not necessary 638 proof of representative character 639 by letters of administration 639 {See Costs; Equity.) by admin istrator ^enrfenifi Zj